This is an agreement ("Agreement") between you, as a legal entity or a person ("You" or "Your"), and Cloudmark, Inc. ("Cloudmark") for the Cloudmark software available from the Cloudmark website ("Software"). This Agreement grants You limited rights to use the Software. By downloading, installing, copying, or otherwise using the software, you acknowledge that you have read and understand, and agree to this end user license agreement, which is a legal and enforceable contract between you and Cloudmark. Any use of the software other than pursuant to the terms of this agreement is a violation of united states and international copyright laws and conventions.
- Grant of license
- License Grant. Subject to the terms and conditions of this Agreement, Cloudmark grants to You a royalty free, non-exclusive, non-assignable, nontransferable, limited license to use the Software. If You have elected to obtain a Basic license to the Software (as described on the Cloudmark Desktop website), You may use one copy of the Software on one computer that You own or otherwise control. If You have elected to obtain a Pro license to the Software (as described on the Cloudmark Desktop website), You may use the Software on multiple computers that You own or otherwise control.
- Use Guidelines and Restrictions. You may not (a) copy, translate, modify, or create derivative works of the Software, (b) distribute, sell, sublicense, or lease the Software, (c) reverse engineer, decompile, or disassemble the Software, or (d) use the Software in any manner not authorized by this Agreement. You agree to comply with all applicable local, state, and federal laws and regulations in connection with the use of the Software.
- Support. Cloudmark will have no obligation under this Agreement to provide any maintenance, support, or updates to the Software, or to correct any bugs, defects, or errors in the Software; however, Cloudmark may at its sole discretion provide You, during normal business hours, with assistance in the use of the Software.
- Proprietary rights. The Software is licensed and not sold. Cloudmark retains all right, title, and interest in and to the Software and all improvements, enhancements, modifications, and derivative works of the Software, including, without limitation, all patent, copyright, trade secret, trademarks, and other intellectual property rights.
- Confidentiality. The Software and any other proprietary information, technology or know how provided to You by Cloudmark (in written, oral or any other form) in connection with Your testing and evaluation of the Software is the confidential information of Cloudmark ("Confidential Information"). You will hold all Confidential Information in confidence for a period of five (5) years from the date of termination or expiration of this Agreement. You will use the Confidential Information only as expressly authorized in this Agreement and You will protect the Confidential Information from unauthorized use, dissemination, or publication by using the same degree of care as You would use to protect Your own confidential information, but no less than a reasonable degree of care. You are not obligated with respect to Confidential Information that (a) is or becomes a matter of public knowledge through no fault of Yours; (b) is rightfully received by You from a third party without a duty of confidentiality; (c) is independently developed by You (excluding the Feedback); (d) is disclosed under operation of law or (d) is disclosed by You with Cloudmark's prior written consent. Unauthorized use or disclosure of Confidential Information may cause Cloudmark irreparable harm; therefore, Cloudmark will have the right to enforce this Agreement and any of its provisions by injunctive or other equitable relief.
- Term; termination
- Term. This Agreement and the license granted herein will commence upon Your use of the Software or Your clicking the "I Agree", "Accept", or "Yes".
- Termination. Cloudmark may terminate this Agreement at any time by written notice to You or by placing a notice on the website stating the effective date of termination. Upon any termination, You will discontinue use of the Software immediately if You have a Basic license to the Software, and if You have a Pro license to the Software, You will discontinue use upon the end of Your then current license term.
- No warranty. You acknowledge and agree that Cloudmark is providing the software on an "as is" basis. Cloudmark disclaims any and all warranties, including any implied warranties of merchantability, fitness for a particular purpose, and statutory warranties of non-infringement. Cloudmark does not warrant that the software will meet your requirements or that use of the software will be uninterrupted or error free.
- Limitation of liability. In no event will Cloudmark be liable to you for (a) special, incidental, indirect, or consequential damages or (b) loss of data, loss of profits, business interruption, or similar damages or loss, even if Cloudmark has been advised of the possibility of such damages. Cloudmark’s maximum liability under this agreement will be limited to the greater of (i) the license fees paid for the software or (ii) one U. S. Dollar ($1.00).
- Refund Policy. Please note, all online sales are final. No refunds are allowed.
- General. This Agreement will supersede any different, inconsistent or preprinted terms and conditions in any order form, purchase order, or other ordering document provided by You. This Agreement will supersede all previous agreements and understandings of any nature whatsoever, oral or written, between Cloudmark and You regarding the Software, and constitutes the entire agreement between Cloudmark and You regarding the Software.
You may not assign, sublicense, pledge, or otherwise transfer this Agreement or any of its rights to the Software, in whole or in part. You acknowledge that the Software and certain of Cloudmark’s Confidential Information (collectively "Technical Data") are subject to United States export controls under the U. S. Export Administration Act, including the Export Administration Regulations, 15 C.F.R. Parts 730 et seq. (collectively, "Export Control Laws"). You agree to comply with all requirements of the Export Control Laws with respect to the Technical Data. Without limiting the foregoing, You will not (a) export, re-export, divert, transfer, or make available any such Technical Data, or any direct product thereof, to any destination, company, or person restricted or prohibited by Export Control Laws; (b) disclose any such Technical Data to any national of any country when such disclosure is restricted or prohibited by the Export Control Laws; or (c) export or re-export the Technical Data, directly or indirectly, for nuclear, missile, or chemical/biological weaponry end uses prohibited by the Export Control Laws. This Agreement will be governed by and construed in accordance with the laws of the State of California, U. S. A., exclusive of any provisions of the United Nations Convention on Contracts for the International Sale of Goods, including any amendments thereto, and without regard to principles of conflicts of law. Any suits concerning this Agreement will be brought in the federal courts for the Northern District of California or the state courts in San Francisco, California. Any terms of this Agreement which by their nature extend beyond the termination of this Agreement will remain in effect until fulfilled. Such terms will include, without limitation, all provisions herein relating to proprietary rights, confidentiality, indemnification, limitation of liability, third party terms, and all general provisions.