Essel Technologies Ltd.
End-User License Agreement
This Agreement ("Agreement") is a legal contract between you, as either an individual or a single business entity, and Essel Technologies Ltd. and its affiliates ("Essel").
READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE USING THE SERVICE. THE SERVICE IS FURTHER DEFINED IN AN ORDER DOCUMENT (AN “ORDER”), ENTERED INTO BETWEEN YOU AND ESSEL, WHICH SETS FORTH COMMERCIAL TERMS APPLICABLE TO YOUR PURCHASE OF THE SERVICE.
THE SERVICE IS LICENSED TO YOU UNDER THIS AGREEMENT AND IS NOT SOLD TO YOU. BY USING THE SERVICE, OR BY ENTERING INTO AN ORDER WHICH REFERENCES AND PROVIDES SOURCE INFORMATION NECESSARY FOR ACCESSING AND REVIEWING THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND IT, AND THAT YOU ACCEPT AND AGREE TO BE BOUND BY ITS TERMS. IF YOU ARE NOT WILLING TO BE BOUND BY THE TERMS OF THIS AGREEMENT, YOU SHOULD TERMINATE USING THE SERVICE. THIS AGREEMENT, INCLUDING ANY ORDERS, REPRESENTS THE ENTIRE AGREEMENT BETWEEN YOU AND ESSEL CONCERNING THE SERVICE, AND THIS AGREEMENT SUPERSEDES AND REPLACES ANY PRIOR PROPOSAL, REPRESENTATION, OR UNDERSTANDING YOU MAY HAVE HAD WITH ESSEL RELATING TO THE SERVICE UNLESS YOU HAVE ENTERED INTO A SEPARATE WRITTEN AGREEMENT SIGNED BY ESSEL THAT EXPRESSLY AMENDS THIS AGREEMENT.
1. License
1.1. Grant of License. Essel hereby grants to you, and you accept, a limited, nonexclusive, non-transferable license to use the Service only as authorized in this Agreement, and subject to compliance with the terms of this Agreement, and payment of all applicable fees. For purposes of this Agreement, the “Service” includes any updates, enhancements, modifications, revisions, or additions to the Service made available to you by Essel. Notwithstanding the foregoing, Essel shall be under no obligation to provide any updates, enhancements, modifications,
revisions, or additions to the Software. The term of your license is as set forth in the Order. The term of your license is renewable on terms set forth in the Order or otherwise as agreed by Essel.
1.2. Scope of Use. You may use the Service at rates specified for metered usage, as specified in an Order. An Order may also specify other applicable license scope definitions. For purposes of this Agreement, “use” of the Service means placing an order for which you want to encrypt a file(s) or project(s). If you want to encrypt multiple files or projects, you must ensure that your usage does not exceed the usage for which you have paid fees, or you will be in breach of this Agreement. If the Order does not state a scope of license, then the scope of license for the Service shall be for a single file or project or shall be metered at the applicable rate.
1.5. Product Specific Special Terms. The provisions of this Section are applicable to the specific product mentioned and are exceptions to other provisions of this Agreement, and serve to modify such provisions only to the extent such provisions relate to our service.
This service is made available for you to encrypt your source code provided that you and your end customers agree to enter into an end user agreement that contains at a minimum the following provisions covering the application embedded components: (i) prohibits reverse compilation and/or reverse assembly, (ii) disclaims all warranties, and (iii) disclaims liability for any indirect, incidental or consequential damages.
2. Intellectual Property Protection and Confidentiality
2.1. Use Reporting, License Violations and Remedies. Essel reserves the right to gather data on license key usage including license key numbers, server IP addresses, domain counts and other information deemed relevant, to ensure
that your products are being used in accordance with the terms of this Agreement. Additionally, you agree that Essel may, upon reasonable notice, perform an audit of your facilities to verify compliance with the terms of this Agreement. Any unauthorized use shall be considered by Essel to be a violation of this Agreement. Essel reserves the right to remedy violations immediately upon discovery, by charging the then-current list price of unauthorized license keys. This is not a sole remedy for a violation of this Agreement and Essel may exercise any other remedies available at equity or law.
2.2. License Automatic Update and Expiration. Your license may include an expiration date that can result in the termination of the license. For perpetual license keys, the license updates automatically except if Essel determines that a license is used in violation of the terms of this Agreement. If your license key is stolen, or if you suspect any improper or illegal usage of your license key outside of your control you should promptly notify Essel of such occurrence. A replacement license will be issued to you and the suspect license will be allowed to expire. For limited-term licenses, your periodic payment must be processed prior to the expiration date in order for the license updates to be performed. It is your responsibility to contact Essel regarding any potential expiration that you deem inappropriate. Essel shall not be liable for any damages or costs incurred in connection with the expired licenses.
2.3. Proprietary Rights to Software and Trademarks. You acknowledge that the Service are proprietary to Essel, and the Service is protected under Kenyan copyright law and international treaties. You further acknowledge and agree that, as between you and Essel, Essel owns and shall continue to own all right, title, and interest in and to the Service, including associated intellectual property rights under copyright, trade secret, patent, or trademark laws. This Agreement does not grant you any ownership interest in or to the Service, but only a limited right of use that is revocable in accordance with the terms of this Agreement. Any and all trademarks or service marks that Essel uses in connection with the Service or with services rendered by Essel are marks owned by Essel. This Agreement does not grant you any right, license, or interest in such marks, and you shall not assert any right, license, or interest in such marks or any words or designs that are confusingly similar to such marks.
2.4. Confidentiality. You shall permit only authorized users, who possess rightfully obtained license keys, to use the Service. Except as expressly authorized by this Agreement, you shall not make available the Service or any license key to any third party. You will use your best efforts to cooperate with and assist Essel in identifying and preventing any unauthorized use, copying, or disclosure of the Service, or any portion thereof.
3. License Fees
The Service will be available to you for use upon your receipt of a license key. You may obtain one or more license keys by ordering the license keys from Essel. The license fees paid by you for the license keys are paid in consideration of the license granted under this Agreement. You shall, in addition to license fees, pay all applicable sales, use, transfer, or other taxes and all duties, whether national, state, or local, however designated, that are levied or imposed by reason of your purchase and use of the Software, excluding income taxes on the net profits of Essel.
4. Service Maintenance and Support Services
You may elect to purchase Service maintenance and support services by so ordering from Essel and paying the applicable fees.
5. Term and Termination
This Agreement is effective upon your acceptance of the Agreement, or upon using the Service, even if you have not expressly accepted this Agreement. This Agreement shall continue in effect until terminated. Without prejudice to any other rights, this Agreement will terminate automatically if you fail to comply with any of the limitations or other requirements described herein. If you are licensing the Software on a limited term basis, and fail to pay the applicable license fees or renewal license fees, Essel shall have the right to interrupt your use of the Service. You may terminate this Agreement at any time by: (i) providing written notice of your decision to terminate the Agreement to Essel and (ii) either returning all license keys that you have obtained to Essel or destroying all such materials and providing written verification of such destruction to Essel. Essel may terminate this License Agreement if you breach any term of the Agreement by giving you written notice of your breach and Essel’s decision to terminate the Agreement. Upon termination of this Agreement, you agree to either return to Essel all license keys that you have obtained, or to destroy all such materials and provide written verification of such destruction to Essel.
6. Indemnifications
Essel shall, at its expense, defend and indemnify you for damages and reasonable costs finally incurred in any suit or claim brought against you alleging that the Service infringes any Kenyan patent, copyright, trade secret or similar
right, provided that Essel is promptly notified, rendered reasonable assistance by you as required, and permitted to direct the defense or settlement negotiations. Essel shall have no obligation to defend or indemnify any infringement claim that arises from or relates to: (i) a modification of the Service by you or any third party, (ii) a combination of the Service with other software products, components, processes or materials, (iii) your failure to incorporate or implement modifications directed by Essel, (iv) third party or open source software components, (v) use of the Software in a manner inconsistent with the Agreement, or (vi) any Software provided for evaluation or trial use or marked as beta or early access. Should the use of Software by you be enjoined, or in the event Essel wishes to minimize its potential liability hereunder, Essel may, at its option, either: (i) substitute fully equivalent non-infringing software; (ii) modify the infringing Software so that it no longer infringes but remains functionally equivalent; (iii) obtain for you, at Essel’s expense, the right to
continue use of the Software; or (iv) take back the infringing Service and refund to you pre-paid license fees applicable to the remainder of the license term, or if a perpetual license was purchased, the purchase price paid, less depreciation amortized on a three-year straight line basis. This indemnification sets forth Essel’s sole liability and your sole remedy for claims of infringement arising from your use of the Service.
You will, at your own expense, indemnify and hold Essel, and its subsidiaries and affiliates, and all officers, directors, and employees thereof, harmless from and against any and all claims, actions, liabilities, losses, damages, judgments, grants, costs, and expenses, including reasonable attorneys’ fees, arising out of any use of the Service by you, any party related to you, or any party acting
upon your authorization in a manner that is not expressly authorized by this Agreement. Your indemnification does not include claims of infringement that are covered by Essel’s indemnification above.
7. Warranty; Disclaimer
Essel warrants for a period of thirty (30) days from your receipt of the Service that the Service will materially conform to the Agreement. This warranty covers only problems that are reproducible and verifiable and does not cover software, or other items or any services provided by any persons other than Essel. Maintenance and support, if any, are governed by a separate agreement. Software, which has been abused, misused, damaged, modified, or subjected to unauthorized use or installation, used in a manner inconsistent with the Agreement or used with components not authorized by Essel, shall void this warranty. Essel’s sole liability (and your sole and exclusive remedy) for any breach of this warranty shall be, in Essel’s sole discretion, to use commercially reasonable efforts to provide you with an error-correction or workaround which corrects the reported non-conformity, or if Essel, in its sole discretion, determines such remedies to be impracticable within a reasonable period of time, to provide a refund of the fees paid for the Service. This limited warranty does not apply for any Service provided for evaluation or trial use or marked as beta or early access.
EXCEPT AS SET FORTH ABOVE IN THIS SECTION, THE SERVICE IS LICENSED “AS IS,” AND ESSEL DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON- INFRINGEMENT, TO THE EXTENT AUTHORIZED BY LAW. WITHOUT LIMITATION OF THE FOREGOING, ESSEL EXPRESSLY DOES NOT WARRANT THAT THE SERVICE WILL MEET YOUR REQUIREMENTS OR THAT OPERATION OF THE SERVIVE WILL BE UNINTERRUPTED OR ERROR FREE. YOU ASSUME RESPONSIBILITY FOR SELECTING THE SERVICE TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE RESULTS OBTAINED FROM YOUR USE OF THE SERVICE. YOU SHALL BEAR THE ENTIRE RISK AS TO THE QUALITY AND THE PERFORMANCE OF THE SERVICE.
WARNING: The Service is not designed or intended for use in on-line control of equipment in hazardous environments such as the operation of nuclear facilities, aircraft, air traffic, aircraft navigation or aircraft communications, or in the design, construction, operation or maintenance of any nuclear facility, or in the operation or maintenance of any direct life support system. Essel disclaims any express or implied warranty of fitness for such uses and shall not be liable for any costs, liabilities or damages resulting from the use of the Service in such an environment. You agree that you will not use or license the Service for such purposes.
8. Limitation of Liability
IN NO EVENT WILL ESSEL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA, OR LOSS OF PROFITS OR LOST SAVINGS, ARISING OUT OF USE OF OR INABILITY TO USE THE SERVICE, EVEN IF ESSEL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL ESSEL BE LIABLE FOR ANY DIRECT DAMAGES IN EXCESS OF THE FEES PAID TO ESSEL FOR THE SERVICE WITHIN THE STATED PERIOD PRIOR TO ANY CLAIM ARISING.
9. General Terms
9.1. Governing Law and Choice of Forum. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Kenya, without regard to the conflicts of law rules thereof. Any claim or dispute arising in connection with this Agreement shall be resolved in the applicable courts situated within the city of Nairobi, Kenya. To the maximum extent permitted by law, you hereby consent to the jurisdiction and venue of such courts and waive any objections to the jurisdiction or venue of such courts. The United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
9.2. Severability. If any term or provision of this Agreement is declared void or unenforceable in a particular situation, by any judicial or administrative authority, this declaration shall not affect the validity of enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation.
9.3. Survival. Any provisions of this Agreement that, in order to fulfill the purposes of such provisions, need to survive the termination or expiration of this Agreement, shall be deemed to survive for as long as necessary to fulfill such purposes.
9.4. Headings. The Section headings contained in this Agreement are incorporated for reference purposes only and shall not affect the meaning or interpretation of this Agreement.
9.5. No Waiver; Amendments. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. Amendments to the Agreement shall only be effective if in writing and signed by all parties.
9.6. Assignment. You may not assign your rights under this Agreement and any attempted assignment shall be void and of no effect. Essel may assign its rights and obligations under this Agreement.
9.7. Export Restrictions. THIS AGREEMENT IS EXPRESSLY MADE SUBJECT TO ANY LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS ON THE EXPORT, REEXPORT OR IMPORT OF THE SERVICE ABOUT SUCH SERVICE WHICH MAY BE IMPOSED FROM TIME TO TIME BY THE GOVERNMENT OF THE KENYA OR ANY OTHER GOVERNMENT. YOU SHALL NOT EXPORT, REEXPORT OR IMPORT THE SERVICE, OR INFORMATION ABOUT THE SOFTWARE OR DOCUMENTATION WITHOUT THE WRITTEN CONSENT OF ESSEL AND COMPLIANCE WITH SUCH LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS.
v. 2013-08-2