KINGSTON ONLINE SYSTEM SCANNER SOFTWARE LICENSE AGREEMENT
NOTICE: By accepting this Agreement and/or by downloading, installing, accessing, or using the system scanner software (“Software”), You are becoming a party to, indicating Your consent to, and agreeing to be bound by the terms of this Agreement, without modification. If You do not accept the terms and conditions of this Agreement, please do not download, install, access or use the Software, and do not click on “accept.” If You download, install, access or use the Software or click on “accept,” You will be acquiring a license to use the software in object code form only in accordance with the terms and conditions of this Agreement, and You will be considered to have accepted and agreed to all the terms and conditions of this Agreement.
1. DEFINITIONS.
(a) “Agreement” and/or “License Agreement” shall mean this License Agreement and any and all documents incorporated by reference; (b) “You” and/or “Your” shall mean the individual or legal entity exercising rights under, and complying with all of the terms of this Agreement; (c) “Software” shall mean Kingston’s technology, which includes computer software and may include associated media, printed materials, and “online” or electronic documentation; (d) “Kingston” shall mean Kingston Technology Company, Inc. and its subsidiaries, affiliates, licensees and agents, and (e) “live update” shall mean the automatic updating of Kingston’s technology or the technology of its affiliate partners on Your computer.
2. LICENSE GRANT.
Subject to the terms of this Agreement, Kingston hereby grants You a non-exclusive, non-transferable, revocable, and restricted license to use for personal or internal purposes the Software strictly for the purposes of determining possible memory upgrades to Your personal computer. No resale, relicensing, export, re-export or other redistribution of the Software in any way is permitted. You acknowledge and agree that You are solely responsible for the provision, maintenance and operation of all software (including without limitation all operating systems, web browsers, and network software), hardware, firmware, computer and telecommunications equipment and services, and all other third-party products, materials and services necessary or useful for the proper download, installation, operation, access and/or use of the Software, and for paying any and all fees, costs and expenses associated with any and all of the foregoing.
3. PERMITTED USAGE & RESTRICTIONS.
(A) You may: download, install and use one (1) copy of the Software on one (1) personal computer of Yours; and make one (1) additional copy of the Software in machine readable format for backup purposes only.
(B) You acknowledge and agree that You shall not (a) modify or create any derivative works of the Software or documentation; (b) attempt to disable the Software by any means or in any manner; (c) attempt to decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for the Software (except to the extent applicable laws specifically prohibit such restriction); (d) redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer or disclose the Software to any third-party; (e) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software; or (f) provide use of the Software in a computer service business, network, time sharing or interactive cable television arrangement; transfer or assign this Agreement.
4. TITLE.
All right, title and interest in and to the Software, including without limitation all patent, copyright, trademark, trade secret and all other proprietary and intellectual property rights, shall at all times remain with Kingston (or its licensors). You acknowledge and agree that no ownership interest in or to the Software is transferred to You hereunder, and that the Software is provided to You during the term of this Agreement only and strictly on a license basis as provided for within this Agreement. Kingston (or its licensors) reserves all rights not expressly granted.
5. DISCLAIMER OF WARRANTY.
THE SOFTWARE IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND. KINGSTON DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE WILL BE ERROR-FREE, BUG-FREE, UNINTERRUPTED, TIMELY, COMPLETE, ACCURATE OR SECURE. WITHOUT LIMITING THE FOREGOING, KINGSTON EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, AND THOSE ARISING FROM A COURSE OF DEALING, USAGE, TRADE CUSTOM OR PRACTICE. THESE DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMISSABLE UNDER APPLICABLE LAW.
6. LIMITATION OF LIABILITY
IN NO EVENT SHALL KINGSTON BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION. DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF KINGSTON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. NOTHING IN THIS AGREEMENT SHALL RESTRICT KINGSTON’S LIABILITY IN A MANNER WHICH IS EXPRESSLY PROHIBITED BY APPLICABLE LAW.
7. TERM & TERMINATION.
This Agreement is effective until terminated. You may terminate this Agreement at any time by ceasing all use of the Software. This Agreement shall terminate immediately without notice from Kingston if You fail to comply with any provision of this Agreement. Upon termination, You must destroy all copies of the Software.
8. U.S. GOVERNMENT RESTRICTED RIGHTS AND EXPORT RESTRICTIONS.
The Software is provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(I)(ii) of The Rights in Technical Data and Computer Software clause of DFARS 252.227- 7013 or subparagraphs (c)(i) and (2)of the Commercial Computer Software-Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer is Kingston Technology Company, Inc., 17600 Newhope Street, Fountain Valley, CA 92708.
The Software and technical data delivered under this Agreement are subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree to comply strictly with all such laws and regulations and acknowledges that You have the responsibility to obtain such licenses to export, re-export, or import as may be required.
9. MISCELLANEOUS.
(a) This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof; (b) This Agreement may be amended only by a writing signed by both parties; (c) This Agreement shall be governed by the laws of the State of California, without regard to conflicts of law provisions, and you consent to the exclusive jurisdiction of the state and federal courts sitting in the State of California; (d) In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be invalid or unenforceable, the remaining portions of this Agreement shall remain in full force and effect and construed so as to best effectuate the intention of the parties in executing it; (e) A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof; (f) You may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein except in the case of a merger or the sale of all or substantially all of Your assets to another entity: (g) This Agreement shall be binding upon and shall inure to the benefit of the parties, their successors and assigns; (h) Neither party shall be in default or be liable for any delay, failure in performance (excepting the obligation to pay), or interruption of service resulting directly or indirectly from any cause beyond its reasonable control; (i) If any dispute arises under this Agreement, the prevailing party shall be reimbursed by the other party for any and all legal fees and costs associated therewith; and (j) This Agreement has been written in the English language and may be translated into other languages for the convenience of the parties. However, in the event of any discrepancy between the translated versions of this Agreement and the original, the English version of this Agreement shall be controlling for all purposes.