Updated 18 August 2022
ETAG END USER LICENSE AGREEMENT ("EULA")
BY INSTALLING OR USING THE eTAG FUSE® SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS END USER LICENSE AGREEMENT (the “Agreement”), THAT YOU UNDERSTAND IT, AND THAT YOU AGREE TO BE BOUND BY ITS TERMS. YOUR USE OF THIS SOFTWARE CONSTITUTES YOUR ACCEPTANCE AND AGREEMENT TO BE BOUND BY THE TERMS HEREIN.
PLEASE NOTE: THIS AGREEMENT INCLUDES A PROVISION REQUIRING ARBITRATION OF DISPUTES.
- GRANT OF LICENSE.
1.1. As long as you are in compliance with the conditions of this Agreement and all incorporated documents, eTag Technologies, Inc. (“eTag,” “we” or “us”) hereby grants to you a limited, non-assignable, non-transferrable, non-sublicensable, non-exclusive license to use the ETAG FUSE® software (the “Software”) in accordance with the scope of rights authorized in this Agreement and the terms of this Agreement, and solely for the length of time identified at the time of purchase. No rights not explicitly listed herein are granted to you.
1.2. If you are purchasing the license as an individual, that license is being granted to you in an individual capacity. If you are purchasing one or more licenses on behalf of an entity, “you” refers to that entity, and the license or licenses purchased are being granted to that entity. You may also be referred to herein as “Licensee.”
1.3. When you purchase a license, you may be provided with a license key or license keys, that when registered with us, permits you to create or be assigned usernames and passwords for your licensed users. A username and password may also initially be assigned to you.
1.4. If you are an entity, the username and password will be assigned to the unique user within your organization that is first issued the username and password as administrator.
1.5. Any use of the Software, other than as expressly set forth herein, by you or any person, business, corporation, government organization or any other entity, is strictly forbidden and is a violation of this Agreement.
- RESTRICTIONS AND RULES; COMPATIBILITY.
2.1. Your use of the Software is conditioned on your compliance with the terms of this Agreement, including but not limited to these rules of conduct.
2.2. You agree that you will not violate any applicable statute, law or regulation in the course of your use of the Software.
2.3. You may not sell, license, sub-license, publish, display, disclose, rent, lease, modify, loan, distribute, alter or create derivative works based on the Software itself or any part thereof. You may not reverse engineer, decompile, translate, adapt, abuse or circumvent product activation, remove watermarks from drawings, or disassemble the Software, nor shall you attempt to create the source code from the object code for the Software.
2.4. The Software may not be used in the operation of a web service or other online service you provide for others, or for the benefit of any person or entity other than the Licensee. It must only be used for your own internal business use and business processes.
2.5. You must abide by all authentication procedures, including but not limited to license key requirements and procedures.
2.6. You may not interfere with or disrupt the operation of the Software, including restricting or inhibiting any other person from using the Software by means of hacking or defacing. Transmitting to or making available in connection with the Software any denial of service attack, virus, worm, Trojan horse or other malware or harmful code or activity is strictly prohibited. You may not attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization. Further, you may not take
any action that imposes, or may impose, in our sole discretion, an unreasonable or disproportionately large load on our infrastructure.
2.7. The Software may not be compatible with all operating systems or hardware, and the compatible systems may change from time to time. We do not make any warranty or guarantee that a previously compatible system will remain compatible.
2.8. The Software may automatically download additional third-party software to enable the Software to run on a particular server or device. Any such third-party software is provided purely “AS IS,” and “AS AVAILABLE,” without warranty of any kind other than as may be provided by the owner or distributor of said third-party software.
3.1. The Software is either owned by us or is licensed to us. It is not sold to you through this Agreement. You are only granted the limited license to the Software identified herein, and you shall not be deemed to own or have any title to said Software, all of which is expressly retained by us and/or our licensors.
3.2. We represent and warrant that we have the right to modify the Software.
3.3. At any termination of this Agreement, you are required to delete and destroy any copies of the Software that may be in your possession. We may require you to provide us with a certificate of compliance and deletion.
- INTELLECTUAL PROPERTY RIGHTS. Our graphics, logos, names, designs, page headers, button icons, scripts, and service names are our trademarks, trade names and/or trade dress. The “look” and “feel” of the Software (including color combinations, button shapes, layout, design and all other graphical elements) are protected by U.S. copyright and trademark law. All product names, names of services, trademarks and service marks, including without limitation, ETAG FUSE® and any related logos (“Marks”) are our property or the property of their respective owners, as indicated. You may not remove any proprietary notice from any copy of the Software. You may not use the Marks or copyrights for any purpose whatsoever other than as permitted by this Agreement.
- DISCLAIMER OF WARRANTY.
BY USING THE SOFTWARE YOU AGREE AND ACKNOWLEDGE THAT THE SOFTWARE IS PROVIDED “AS IS” AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. WE AND OUR AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, MANAGERS, EMPLOYEES AND SUPPLIERS, LICENSORS OR BUSINESS PARTNERS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, ACCURACY, SUITABILITY, APPLICABILITY, MERCHANTABILITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ANY OTHER WARRANTIES OF ANY KIND. NO ADVICE OR INFORMATION (ORAL OR WRITTEN) OBTAINED BY YOU FROM US SHALL CREATE ANY WARRANTY.
USE OF THE SOFTWARE IS AT YOUR SOLE RISK. WE DO NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE SOFTWARE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; THAT USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED OR CORRECTABLE; OR THAT THE SOFTWARE IS FREE OF INACCURACIES, VIRUSES, MALWARE OR OTHER HARMFUL COMPONENTS.
- LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND EXCEPT AS OTHERWISE PROHIBITED BY LAW, IN NO EVENT SHALL WE OR OUR AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, MANAGERS, EMPLOYEES, SUPPLIERS, LICENSORS OR BUSINESS PARTNERS (COLLECTIVELY, THE “RELATED PARTIES”) BE LIABLE TO YOU BASED ON OR RELATED TO THE SOFTWARE, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND SHALL NOT BE RESPONSIBLE FOR ANY LOSSES OR DAMAGES, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SOFTWARE, EVEN IF WE AND/OR RELATED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Notwithstanding the foregoing, in the event that a court shall find that the above disclaimers are not enforceable, then you agree that neither we nor any of our Related Parties shall be liable for (1) any indirect, incidental, punitive, special, or consequential damages or loss of use, lost revenue, lost profits or data to you or any third party from your use of the
Software; or (2) any damages in excess of the greater of (a) $500.00 or (b) the amounts paid by you for use of the Software in the six (6) months immediately preceding any claim. This limitation shall apply regardless of the basis of your claim or whether or not the limited remedies provided herein fail of their essential purpose.
SOME STATES MAY NOT PERMIT CERTAIN DISCLAIMERS AND LIMITATIONS, AND ANY SUCH DISCLAIMERS OR LIMITATIONS ARE VOID WHERE PROHIBITED.
- EXPORT RESTRICTIONS. THIS AGREEMENT IS EXPRESSLY MADE SUBJECT TO ANY LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS ON THE EXPORT FROM THE UNITED STATES OF AMERICA OF THE SOFTWARE OR INFORMATION ABOUT SUCH SOFTWARE WHICH MAY BE IMPOSED FROM TIME TO TIME BY THE GOVERNMENT OF THE UNITED STATES OF AMERICA. YOU SHALL NOT EXPORT THE SOFTWARE OR INFORMATION ABOUT THE SOFTWARE AND DOCUMENTATION. PURCHASERS OF LICENSES TO THE SOFTWARE ARE STRICTLY PROHIBITED FROM EXPORTING OR TRANSFERRING THE SOFTWARE OR INFORMATION ABOUT THE SOFTWARE, OR ANY RIGHTS GRANTED UNDER THE TERMS HEREOF, TO ANY INDIVIDUAL OR ENTITY EITHER (I) RESIDING IN ANY COUNTRY PROHIBITED BY UNITED STATES LAW, OR (II) USING THE SOFTWARE FOR ANY PURPOSE PROHIBITED BY SAID LAW OR REGULATION, AND ANY SUCH ATTEMPTED TRANSFER OR EXPORT SHALL BE NULL AND VOID.
- TERM AND TERMINATION.
8.1. This Agreement is effective until it is terminated or expires.
8.2. This Agreement expires at the end of the license term that you purchased.
8.3. This Agreement will terminate should you fail to pay any license fees when due.
8.4. This Agreement shall terminate immediately and without notice if you violate the terms of this Agreement. Your representations, and defense and indemnification obligations shall survive any termination or expiration of this Agreement.
8.5. You may terminate this Agreement at any time by destroying all copies of the Software in your possession or under your control.
8.6. Upon any termination or expiration of this Agreement, you shall immediately cease use of the Software and shall irretrievably delete and/or remove such items from your system. You shall certify in writing to us that you have performed the foregoing, and we reserve the right (but shall have no obligation) to confirm the deletion independently.
- INDEMNIFICATION You hereby agree that you shall defend, indemnify and hold harmless us and any of our directors, officers, employees, agents, representatives of and from any and all liabilities, claims, expenses, damages including reasonable legal fees and disbursements arising out of any third-party claims or suits for damage or injury to person in connection with, directly or indirectly, in whole or in part, any negligent act or omission of you of your employees, agents, contractors, directors, officers or any person for whom you have legal responsibility for; or any act or omission which is, or can be determined to be, a breach of any of the terms of this Agreement or any of your representations or warranties hereunder.
10.1. Dispute Resolution. You agree that any claim or dispute arising out of or relating in any way to your use of the Software or any service provided by us, will be resolved solely and exclusively by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to this Agreement. The laws of the State of New Jersey shall govern this Agreement, and shall be used in any arbitration proceeding.
10.1.1. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would.
10.1.2. To begin an arbitration proceeding, you must send a certified letter, return receipt requested, requesting arbitration and describing your claim to the following address: 45 South Park Place, #502, Morristown, NJ 07960.
10.1.3. Arbitration under this Agreement will be conducted by the American Arbitration Association (“AAA”) under its rules then in effect. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules.
10.1.4. You agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, we agree that each party hereto has waived any right to a jury trial.
10.1.5. Notwithstanding the foregoing, you agree that we may bring suit in any court of competent jurisdiction to enjoin infringement or other misuse of our intellectual property or other proprietary rights.
10.1.6. To the extent the arbitration provision does not apply, you agree that any dispute arising out of or relating to the Software, or to us, may only be brought by you in a state or federal court located in Newark, New Jersey. YOU HEREBY WAIVE ANY OBJECTION TO THIS VENUE AS INCONVENIENT OR INAPPROPRIATE, AND AGREE TO EXCLUSIVE JURISDICTION AND VENUE IN NEW JERSEY.
10.2. Entire Agreement. This Agreement shall constitute the entire agreement between the parties relating to the subject matter hereto. Any waiver or modification of this Agreement shall only be effective if it is in writing and signed by both parties hereto.
10.3. No Waiver. No waiver of any provision hereof or of any right or remedy hereunder shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. No delay in exercising, no course of dealing with respect to, or no partial exercise of any right or remedy hereunder shall constitute a waiver of any other right or remedy, or future exercise thereof.
10.4. Severability. If any provision of this Agreement is found for any reason to be unlawful, void or unenforceable, then that provision will be given its maximum enforceable effect, or shall be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provision.
10.5. Assignment. We may assign or delegate any of our rights or obligations under this Agreement, in whole or in part, to any person or entity at any time with or without your consent. You may not assign the Agreement without our prior written consent. Any unauthorized assignment shall be null and void.
10.6. Equitable Remedies. You hereby agree that we would be irreparably damaged if the terms of this Agreement were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this Agreement, in addition to such other remedies as we may otherwise have available to us under applicable laws.
10.7. Survival. The respective rights and obligations of the parties with respect to Sections 2-10 shall survive any termination or expiration of this Agreement.