IMPORTANT - THIS IS A LEGAL AGREEMENT BETWEEN YOU AND WINMAGIC CORP. AND ITS AFFILIATES AND SUBSIDIARIES (“WinMagic”)
As used in this Software License Agreement ("Agreement"), the term "Software" means the machine-readable object code SecureDoc™ encryption software (in all variants, modifications, updates, editions, copies, and versions) included on the CD provided with this License or available for purchase on the Web, excluding, however, (a) any software, other than open source software, that is incorporated into or accompanying the Software and subject to a separate license or user agreement offered or granted by a party other than WinMagic ("Third Party Software") and (b) any open source software that is distributed with the Software or Third Party Software (“Open Source Software”). "Documentation" means the published user manuals and documentation accompanying the Software. "Licensed Materials" means, together, the Software and the Documentation.
TITLE: The Licensed Materials, including any related copyright, trademark, patent rights, or other intellectual property rights applicable to or derived from the Licensed Materials are owned by WinMagic and remain, without exception, the sole and exclusive property of WinMagic. The Licensed Materials are protected by Canadian, United States, and international copyright laws and applicable treaties.
GRANT OF LICENSE: Subject to the terms and conditions of this Agreement, WinMagic grants to you a nonexclusive, non-transferable, non-sub-licensable, limited license to use the Licensed Materials (the "License").
ACCEPTANCE OF LICENCE: By opening the sealed package containing the Licensed Materials or by agreeing to be bound to this Agreement prior to downloading the Licensed Materials from the Web or prior to installation, you acknowledge and agree that you have had the opportunity to read this Agreement, have understood it, and confirm that you will be bound by each of the terms and conditions of this Agreement. If you disagree with any term or condition of this Agreement, or do not agree to be bound by the terms and conditions of this Agreement, WinMagic hereby revokes any interests or rights you may have gained in respect of the Licensed Materials and requires that you return the Licensed Materials to their place of purchase within 10 days of having opened the package containing the Licensed Materials or, if applicable, stop downloading the Licensed Materials immediately. If the download was completed, the software install package(s) must be permanently deleted from the computer(s).
THIRD PARTY SOFTWARE: Any Third Party Software incorporated into or accompanying the Software is owned by a party other than WinMagic and is protected by Canadian, United States, and international copyright laws and applicable treaties. WinMagic has obtained such rights, permissions and consents as are necessary for WinMagic to use the Third Party Software in conjunction with the Software as licensed by this Agreement. However, all such Third Party Software incorporated into or accompanying the Software is or may be subject to a separate software licensing agreement containing separate and discrete terms, conditions and restrictions governing your right to use the Third Party Software. Irrespective of your acceptance and/or use of the Software, you will not receive or gain any rights, privileges or entitlements in respect of the Third Party Software greater than such rights, privileges or entitlements as WinMagic is able to provide to you pursuant to this Agreement (each as may be amended, from time to time) and you agree and confirm to use the Third Party Software only in conjunction with the Licensed Materials, as permitted by this Agreement, and as permitted by the more restrictive of any Third Party Software license agreement applicable to your and/or WinMagic’s use of the Third Party Software. In addition, by acceptance of the License in connection with the Licensed Materials, you are accepting any license applicable to the Third Party Software and, in connection with any such license applicable to the Third Party Software the provisions entitled "Acceptance of License" applying in connection with the license to any such Third Party Software, mutatis mutandis.
OPEN SOURCE SOFTWARE: As provided or made available to you, the Software and Third Party Software may be accompanied by Open Source Software that has been used to develop a Linux-based operating system on which the Software and Third Party Software run. Such Open Source Software forms, and is distributed as, a separate and independent software program from the Software and Third Party Software, even though such Open Source Software may have been aggregated with the Software and the Third Party Software for purposes of distribution only. Such Open Source Software is subject to the terms and conditions of the applicable open source licenses and noticesset out at the following URL: www.winmagic.com/products/licenses/open_source (“Open Source Licenses”). By agreeing to be bound by this Agreement in accordance with the provisions set out above in the section entitled “Acceptance of License”, you agree to the terms and conditions of the applicable Open Source Licenses as they relate to such Open Source Software.
RESTRICTED USE: You may not modify, amend, reverse engineer, decompile, disassemble, or distribute (whether commercially, for-profit or otherwise), sublicense, resell, or transfer the Software or the Third Party Software (together, the "Licensed Software") or create or compile any software to work in conjunction with or as a companion to the Licensed Software, including, but not limited to, any installed programs without the prior written consent of WinMagic which consent may be unreasonably withheld by WinMagic at its sole and exclusive discretion. The Licensed Software may be copied one time only for backup and archival purposes. Your use of the Open Source Software is governed by the Open Source Licenses, as applicable.
You agree that WinMagic, with reasonable notice to you, is entitled to audit your compliance with this Agreement. Any costs incurred in connection with this audit will be borne by WinMagic, unless the audit reveals a material breach of the terms and conditions of the Agreement, in which case you agree to pay all fees for such audit, in addition to all other costs associated with remedying your breach of this Agreement. Audits will be carried out during regular business hours and WinMagic will endeavor to avoid adversely affecting your business operations.
PRICE AND PAYMENT: The purchase price for the Licensed Materials and the Third Party Software (together, the "Software Package") does not include applicable federal, state, provincial, and local taxes (other than taxes on WinMagic's income) and the costs of delivery of each item of the Software Package and you are required to pay such amounts, as applicable, in addition to the purchase price for the Software Package at the time of purchase. If you do not pay any amount that is due under this Agreement when payable, you agree to pay WinMagic interest of 18% per annum, calculated and payable monthly (or such lesser amount as may be required by applicable law) in addition to any unpaid amounts (including accrued interest) until all amounts payable by you have been paid in full.
LIMITED WARRANTY: For 90 days from the date of purchase of the Licensed Materials (the "Warranty Period") and subject to the provisions of this Agreement, WinMagic warrants as follows: (i) the media upon which the Software is provided to you, if any, is free of material defects; and (ii) the Software will reasonably conform to the specifications contained in the accompanying Documentation. You agree that the limited warranty set out in this provision is invalidated and that you will have no claim whatsoever in respect of that warranty if: (i) you are not the purchaser of the Software Package; (ii) you fail to report in writing to WinMagic any defect or error claimed to be a breach of the warranty during the Warranty Period; (iii) the Software or the media upon which the Software is provided is misused; (iv) you fail to promptly install an update issued by WinMagic; (v) the Software or the media upon which the Software is provided is damaged, altered, or affected by accident, neglect, misuse, other abuse or in a manner in breach of this Agreement; (vi) the claim to defect or error has been caused, in whole or in part, by persons other than WinMagic; or (vii) if the Software has been installed on a system that has not been certified by WinMagic as compatible with the Software at the time of purchase. If you have a warranty claim brought properly within the Warranty Period, WinMagic's sole responsibility pursuant to this limited warranty will be, at WinMagic’s sole discretion, will be to (i) return to you the purchase price and other applicable amounts paid by you for the Software Package; (ii) replace the Licensed Software; or (iii) provide support for the Licensed Software by electronic mail. If WinMagic, at its sole discretion, chooses to replace the Licensed Software, the Warranty Period applicable to the replacement Licensed Software will be the greater of the remaining time available to you pursuant to the original Warranty Period or 30 days. THE LIMITED WARRANTY SET FORTH IN THIS PROVISION IS THE ONLY WARRANTY MADE BY WINMAGIC IN RESPECT TO THE SOFTWARE PACKAGE, ANY SUPPORT FOR THE SOFTWARE PACKAGE OR THE LICENSE. WINMAGIC MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED, OR ARISING BY CUSTOM OR TRADE USAGE, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
IN ADDITION, WINMAGIC MAKES NO REPRESENTATIONS OR WARRANTIES, AND THERE ARE NO CONDITIONS, WHATSOEVER, WHETHER EXPRESS OR IMPLIED OR ARISING BY STATUTE OR OTHERWISE IN LAW OR EQUITY OR BY CUSTOM, COURSE OF DEALING OR TRADE USAGE, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OR CONDITIONS OF TITLE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE IN CONNECTION WITH ANY THIRD PARTY SOFTWARE OR OPEN SOURCE SOFTWARE.
INDEMNITY: WinMagic will defend or, at its option, settle, any claim or proceedings brought against you to the extent that it is based on an assertion that your authorized use of the Software constitutes direct infringement of any Canadian or United States copyright or patent(s) registered on or before the date on which you purchased the Software Package, and will indemnify you against all reasonable costs, damages and expenses finally awarded against you which result from any such claim, provided that you notify WinMagic promptly in writing of any such claim or proceeding and give WinMagic full and complete authority, information and assistance to defend any such claim or proceeding and all negotiations for a compromise or settlement. WinMagic will have no liability or obligation to you hereunder for any patent or copyright infringement or any assertion, claim or proceeding relating thereto based upon: (i) the combination of the Software with any other products not furnished by WinMagic; (ii) any addition to or modification of the Software made after installation by any person or entity other than WinMagic; (iii) any software or other technology not claimed to be owned by WinMagic, including without limitation, the Third Party Software and the Open Source Software and any materials related thereto. WinMagic will have no obligation hereunder for any costs incurred by you without WinMagic expressing prior written authorization. If the Software or any part thereof becomes, or in a WinMagic's opinion is likely to become, the subject of any claim of infringement, WinMagic will have the right, at WinMagic's option and expense, to (i) obtain for you the right to continue using the Software, (ii) replace or modify the Software so that it becomes a non-infringing, or (iii) refund the amount actually paid to WinMagic by you for the License, less 2% for each complete month since the date of initial delivery. This provision states the sole, exclusive and entire liability of the WinMagic and the sole, exclusive and entire remedy of you, with respect to any claim of patent or copyright infringement with respect to the Software, and any part thereof.
LIMITATION OF LIABILITY: UNDER NO CIRCUMSTANCES WILL WINMAGIC OR ANY OF WINMAGIC'S AFFILIATES BE LIABLE TO YOU FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR EXEMPLARY DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF WARRANTY, CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY CLAIMS RELATING TO LOST PROFITS, BUSINESS, OR OPPORTUNITIES, EVEN IF WINMAGIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF SUCH DAMAGES WERE FORESEEABLE. FOR GREATER CERTAINTY, WINMAGIC SHALL NOT BE LIABLE FOR LOSS OF DATA IF YOU NEGLECT TO BACK UP YOUR SECUREDOCTM KEY DATABASE OR PROFILE OR IF YOU CANNOT RECALL YOUR PASSWORD.
CONFIDENTIALITY: Both WinMagic and you acknowledge that, in connection with this Agreement and the Software Package, each may have come into possession or contact with confidential information concerning the other (“Confidential Information”). You acknowledge that the Software Package incorporates proprietary and confidential information and trade secrets developed, acquired by or licensed to WinMagic. WinMagic and you will take all reasonable precautions necessary to safeguard the Confidential Information of the other including: (i) taking all such actions as a party may take to protect its own confidential information; (ii) and specifically in regards to WinMagic’s Confidential Information, you agree to take such other measures as WinMagic or its authorized representatives may reasonably request from time to time. You will not allow the removal, copying, or defacement of any confidentiality or proprietary notice placed on the Licensed Materials. The placement of copyright notices on any portion of the Licensed Materials will not constitute publication or otherwise impair their confidential nature.
Neither party will disclose, in whole or in part, any item of the other’s Confidential Information that has been designated as confidential to any individual, entity, or other person, except to those of its employees or consultants who (i) require access for authorized use of the same, and (ii) agree to comply with any use and non-disclosure restrictions applicable thereto under this Agreement or otherwise. If requested by WinMagic, you will cause such employees and consultants to execute appropriate confidentiality agreements that would ensure the compliance with any such employees or consultants with the provisions set out herein. You acknowledge that any unauthorized use or disclosure of the Licensed Materials and/or the Confidential Information of WinMagic may cause irreparable damage to WinMagic and its licensors. If any unauthorized use or disclosure occurs, you will immediately notify WinMagic and take, at your expense, all steps which may be necessary and/or available to recover the Licensed Materials and/or the Confidential Information and to prevent their subsequent unauthorized use or dissemination. Neither party will have any obligations in respect of any such portion of the Confidential Information which it can demonstrate (i) was known to it or was independently developed before receiving the Licensed Materials, (ii) was lawfully obtained from a third party under no confidentiality obligation in respect of the same; or (iii) became available to the public other than as a result of any act or omission by a party or any of that party’s employees or consultants subject to this confidentiality obligation.
EXPORT RESTRICTIONS: The Software, Third Party Software, and Open Source Software may be subject to export and import restrictions. Export of the Software, Third Party Software, and Open Source Software outside of Canada and the United States may require prior approval of the appropriate government authorities. You agree to fully comply with all applicable Canadian and United States laws and regulations applicable to the export and import of the Software, Third Party Software, and Open Source Software.
U.S. GOVERNMENT RESTRICTED RIGHTS: Use, modification, reproduction, release, display, or disclosure by the Government of the United States of America of the Licensed Software is subject to the restrictions set out in this Agreement and United States Federal Regulations, including but not limited to 48 C.F.R. Section 12.12 and Subsection 227.7202-3.
TRANSFER: WinMagic may sell, transfer, or assign this Agreement and WinMagic's rights pursuant to this Agreement to an affiliate, a subsidiary, or third-party without notice to you. With the prior written consent of WinMagic (not to be unreasonably withheld), you may transfer and assign this Agreement and your right pursuant to this Agreement to another party provided that: (i) that party become subject to the terms and conditions of this Agreement; and (ii) you are not sublicensing, leasing, selling or otherwise transferring the Licensed Software to any third party for the purposes of monetary gain.
TERMINATION: This License is effective from your date of purchase and will remain in force until terminated. You may terminate the License and this Agreement at any time by destroying the Licensed Materials, and any copies thereof, and uninstalling the Software from your computer and permanently deleting the install package(s) from the computer(s). WinMagic may terminate this Agreement, the License and any rights you may have in connection with the Third Party Software at any time if you breach any term, condition or provision of this Agreement, if you become insolvent, bankrupt or threaten to become insolvent or bankrupt, or for any reason where WinMagic, acting reasonably, believes that its rights and interests pursuant to this Agreement, the License or otherwise, or in connection with the Software Package, may be at risk from you or any third-party.
GOVERNING LAW: This Agreement is governed by the laws of the Province of Ontario and the laws of Canada applicable therein. You agree that any action or lawsuit commenced in connection with this Agreement or in connection with the subject matter hereof, will be brought before the courts of the Province of Ontario.
MISCELLANEOUS: If any provision of this Agreement is held to be unenforceable, in whole or in part, such determination will not affect the validity of any other provisions of the Agreement. The Agreement constitutes the complete and entire statement of the agreement between you and WinMagic with respect to its subject matter and supersedes all prior writings, discussions, representations, or understandings.
AMENDMENTS: This Agreement may be amended unilaterally by WinMagic from time to time. Notice of any such amendment will be posted on the WinMagic website. Any such amendment will become effective 30 days after the date on which such amendments have been posted on WinMagic’s website. If you continue to use the Licensed Materials after expiration of the 30 days from the date on which such amendments have been posted on the WinMagic website, you agree to be bound by the amended terms of this Agreement, without reservation. If you disagree with any amendments to this Agreement as posted on WinMagic website, we require that you discontinue use of the Licensed Materials immediately and comply with the provisions set out above entitled "Acceptance of License".
If you have any questions concerning this Agreement, or if you desire to contact WinMagic for any reason, please write to:
5600A Cancross Court
L5R 3E9 Canada
Tel.: +1 905 502-7000
Fax: +1 905 502-7001