KoolSpan® End-User License Agreement IMPORTANT – THIS IS A LEGAL DOCUMENT. BEFORE INSTALLING, ACCESSING OR USING ANY PART OF THIS PRODUCT, YOU SHOULD READ THE FOLLOWING TERMS AND CONDITIONS CONTAINED IN THIS LICENSE AGREEMENT (THE “LICENSE AGREEMENT”) CAREFULLY AS IT GOVERNS YOUR USE OF THIS PRODUCT AND ANY ASSOCIATED MATERIALS, RELAY SERVICES, SOFTWARE, HARDWARE, CHIPS (INCLUDING TRUSTCHIPS), TOKENS, KEYS, DOCUMENTATION, AND INFORMATION USED IN CONNECTION THEREWITH (COLLECTIVELY, THE “KOOLSPAN SOLUTION”). KOOLSPAN IS WILLING TO LICENSE THE USE OF THE KOOLSPAN SOLUTION TO YOU ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS LICENSE AGREEMENT.
IF YOU DO NOT AGREE WITH THIS LICENSE AGREEMENT, YOU ARE NOT GRANTED PERMISSION BY KOOLSPAN TO INSTALL, ACCESS, OR OTHERWISE USE THE KOOLSPAN SOLUTION AND ARE REQUIRED TO RETURN THE PRODUCT (AND ANY ASSOCIATED MATERIALS) TO KOOLSPAN WITHIN 15 DAYS OF RECEIPT OF THE PRODUCT. IF THE KOOLSPAN SOLUTION IS NOT RETURNED WITHIN THE 15 DAY PERIOD, YOU WILL BE DEEMED TO HAVE AGREED TO THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT.
- LICENSE GRANT. This License Agreement provides you with a revocable, limited, non-exclusive, nontransferable license to use and install the KoolSpan Solution for your internal business purposes conditioned on your continued compliance with the terms and conditions of this License Agreement. You may use the KoolSpan Solution only up to the number of chips or tokens, which you have licensed from KoolSpan. The KoolSpan Solution may include the use of relay servers (“Relay Servers”) which may be operated by KoolSpan, you, or other third parties. Your use of the KoolSpan Solution may include the use of the Relay Servers to provide call setup procedures and the transmission of voice and other data through Relay Servers in encrypted formats. Any rights granted herein are licensed and not sold or otherwise transferred or assigned to you or any third party. Software provided to you may only be copied as necessary for the loading and operation of the software and not for any other purpose. References to “you” or “user” mean the corporate or individual purchaser of the KoolSpan Solution and any successor, permitted assignee, transferee, heir, or representative thereof.
- LICENSE GRANT RESTRICTIONS. Notwithstanding the foregoing, you may not modify, alter, translate, decompile, create derivative work(s) of, rent, sublicense, distribute, disassemble, reverse engineer, broadcast, transmit, reproduce, publish, remove or alter any proprietary notices or labels for, license, transfer, sell, exploit, rent, lease, grant a security interest in, transfer any right(s) in, or otherwise use in any manner not expressly permitted herein the KoolSpan Solution or any part thereof.
- USER OBLIGATIONS. By installing, accessing, or using the KoolSpan Solution, you represent that you agree to abide by all applicable local, state, national, and international laws and regulations with respect to your use of the KoolSpan Solution. You agree to assume all responsibility concerning your use of the KoolSpan Solution, including providing any support and meeting any requirements of your contracts with third parties.
- EXPORT RESTRICTIONS. You are solely responsible for complying with any export laws, regulations, orders, or other restrictions, which may be imposed from time to time by the U.S. government, and by other governments with jurisdiction where you use the KoolSpan Solution including prohibitions on exports to countries subject to U.S. embargos. You agree not to export or re-export the KoolSpan Solution or information pertaining thereto directly or indirectly to any country for which a U.S. government agency requires an export license or other governmental approval without first obtaining express authorization to do so from KoolSpan, and all such necessary licenses and approvals. The KoolSpan Solution may contain encryption that may be subject to specific governmental export approval.
- PROPRIETARY RIGHTS. KoolSpan retains all ownership right, title, and interest in and to all programs, software, hardware, chips, keys, tokens, information, and documentation associated with the KoolSpan Solution. KoolSpan and TrustChip are registered trademarks of KoolSpan. TrustCall, TrustText and TrustSuite and all other names, logos, and icons identifying KoolSpan and its products and services are marks of KoolSpan. The use of the registered and unregistered KoolSpan marks without the express written permission of KoolSpan is strictly prohibited. Except as expressly provided herein, KoolSpan does not grant any express or implied right to you or any other person under any intellectual or proprietary rights. Accordingly, unauthorized use of the KoolSpan Solution may violate intellectual property or other proprietary rights laws as well as other domestic and international laws, regulations, and statutes, including, but not limited to, United States copyright, trade secret, patent, and trademark law.
- CONFIDENTIALITY. You acknowledge and agree that the KoolSpan Solution contains proprietary trade secrets and confidential information of KoolSpan (the “Confidential Information”). You agree to secure and protect the confidentiality of the Confidential Information in a manner consistent with the maintenance of KoolSpan’s rights therein, using at least as great a degree of care as you use to maintain the confidentiality of your own confidential information of a similar nature, but in no event using less than reasonable efforts. You shall not, nor permit any third party to, sell, transfer, publish, disclose, or otherwise make available any portion of the Confidential Information to third parties, except as expressly authorized in this Agreement.
- KEY AND TRUSTCHIP POLICIES. The KoolSpan Solution may include TrustChips or physical token Keys. Use of the KoolSpan Solution requires you to safeguard your TrustChips and Keys, as applicable, as described in the accompanying documentation. It is your sole responsibility to safeguard your TrustChips. If this product utilizes a TrustChip, and if you need a replacement, you will have pay a fee to KoolSpan to send you a replacement Master TrustChip. DO NOT LOSE YOUR MASTER KEY OR MASTER TRUSTCHIP; GUARD AND STORE THEM SAFELY!
- SUBMISSIONS. KoolSpan welcomes your feedback and suggestions about how to improve the KoolSpan Solution. You agree that KoolSpan shall have the right to use such feedback and suggestions in any manner it deems desirable without providing any consideration or payment to you.
- WARRANTY & DISCLAIMER. KoolSpan warrants that the KoolSpan Solution shall perform substantially in accordance with the accompanying documentation for a period of 90 days from the date of receipt. In the event of a failure of this limited warranty, KoolSpan’s entire liability and your exclusive remedy shall be (at KoolSpan’s option) either to repair or replacement the defective portion of the KoolSpan Solution that does not meet KoolSpan’s limited warranty (as set forth herein) and which is returned to KoolSpan with a copy of your receipt for purchase or, if KoolSpan is unable to deliver a suitable replacement, you may terminate this Agreement by returning the KoolSpan Solution (and any associated materials) for a refund of your money. Claims under this warranty must be received no later than 5 days after the end of the 90-day period. Claims can be made by calling or sending an e-mail to email@example.com. KOOLSPAN MAKES NO OTHER REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, COMPLETENESS, TIMELINESS, RELIABILITY, LEGALITY, OR ACCURACY OF THE INFORMATION, SERVICES, PROGRAMS, PRODUCTS, SERVICES, AND MATERIALS ASSOCIATED WITH OR AVAILABLE THROUGH THE KOOLSPAN SOLUTION FOR ANY PURPOSE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE, THE KOOLSPAN SOLUTION AND ANY SUCH INFORMATION, SERVICES, PROGRAMS, PRODUCTS, SERVICES, AND MATERIALS ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. KOOLSPAN DOES NOT WARRANT THAT THE KOOLSPAN SOLUTION IS FREE FROM LATENT DEFECTS OR WILL OPERATE ERROR-FREE, UNINTERRUPTED, OR IN A MANNER THAT WILL MEET YOUR REQUIREMENTS. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE IS WITH YOU. THE KOOLSPAN SOLUTION IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE OR DISTRIBUTION WITH ANY MISSION CRITICAL APPLICATIONS OR IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL SAFE CONTROLS, INCLUDING, WITHOUT LIMITATION, OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS.
- LIMITATION OF LIABILITY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT NEITHER KOOLSPAN NOR ITS AFFILIATES, ITS SUPPLIERS, OR ITS AUTHORIZED DISTRIBUTORS SHALL BE LIABLE FOR ANY LOSS OF DATA OR PRIVACY, LOSS OF INCOME, LOSS OF OPPORTUNITY OR PROFITS, COST OF RECOVERY, LOSS ARISING FROM YOUR USE OF THE KOOLSPAN SOLUTION, OR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT WHETHER SUCH LOSS, COST OR DAMAGE ARISES FROM THE NEGLIGENCE OF KOOLSPAN HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY. THIS LIMITATION OF LIABILITY WILL APPLY EVEN IF KOOLSPAN, ITS AFFILIATES, ITS SUPPLIERS, AND ITS AUTHORIZED DISTRIBUTORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE LIABILITY OF KOOLSPAN, ITS AFFILIATES, ITS SUPPLIERS, AND ITS AUTHORIZED DISTRIBUTORS EXCEED THE AMOUNT PAID FOR THE KOOLSPAN SOLUTION AT ISSUE. YOU ACKNOWLEDGE THAT THE LICENSE OR SUPPORT FEE REFLECTS THIS ALLOCATION OF RISK. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. Affiliates, suppliers, and licensors are intended to be third party beneficiaries of this Agreement.
- INDEMNITY. You agree to defend, indemnify, and hold harmless KoolSpan and its affiliates, employees, agents, directors, officers, proprietors, partners, representatives, shareholders, servants, attorneys, predecessors, successors, and assigns from and against any and all claims, proceedings, damages, injuries, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees and litigation expenses), relating to or arising from your use of the KoolSpan Solution and any breach by you of this License Agreement.
- GOVERNING LAW. This License Agreement has been made in and will be construed and enforced solely in accordance with the laws of the State of Maryland as applied to agreements entered into and completely performed in Maryland. You agree that any action to enforce this License Agreement will be brought solely in the federal or state courts in Montgomery County, Maryland, U.S. and all parties to this License Agreement expressly agree to be subject to the jurisdiction of such courts. You also acknowledge and agree that the Maryland implementation of the Uniform Computer Information Transactions Act (including any available remedies or laws) shall not apply to this agreement and is hereby disclaimed. If any one or more of the provisions of this License Agreement or portions thereof are finally adjudicated to be partially or entirely unenforceable by a court of competent jurisdiction, then this License Agreement shall be construed as if such unlawful provision or portion had not been contained herein, and the remainder of this License Agreement shall remain in full force and effect.
- TERM AND TERMINATION. This License Agreement will take effect at the time you receive the KoolSpan Solution and is effective until terminated. This License Agreement will terminate automatically if you return the product pursuant to the conditions set forth herein or if you fail to comply with any of the terms and conditions described herein, including by exceeding the scope of the license. Termination will be effective without notice. You may also terminate at any time by ceasing to use the KoolSpan Solution, but all applicable provisions of this Agreement will survive termination, as outlined below. Upon termination, you must return or destroy the KoolSpan Solution (and any associated materials) in your possession. The provisions concerning proprietary and intellectual property rights, submissions, confidentiality, indemnity, disclaimers of warranty and liability, termination, and governing law will survive the termination of this License Agreement for any reason.
- MISCELLANEOUS. Failure to insist on strict performance of any of the terms and conditions of this License Agreement will not operate as a waiver of that or any subsequent default or failure of performance. A printed version of this License Agreement and of any related notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this License Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. The Software was developed at private expense. Use, duplication or disclosure of the Software by the United States government is subject to the restrictions as set forth in this Agreement and in the Commercial Computer Software — Restricted Rights Clause at FAR 52.227-19(c) (2), FAR 52.227-14 (Alt. III), DFARS 252.227-7013 and/or DFARS 252.227-7014, as applicable. No joint venture, partnership, employment, or agency relationship exists between you and KoolSpan as result of this License Agreement or your utilization of the KoolSpan Solution. This License Agreement represents the entire agreement between you and KoolSpan with respect to use of the KoolSpan Solution, and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral, or written between you and KoolSpan with respect to the KoolSpan Solution. Please note that KoolSpan reserves the right to change the terms and conditions of this License Agreement and under which the KoolSpan Solution is extended to you by providing you in writing or electronically a copy of such revised terms. A current version of this License Agreement is available at https://koolspan.com/terms-and-conditions. KoolSpan may change any aspect of the KoolSpan Solution. Your continued use of the KoolSpan Solution will be conclusively deemed acceptance of any change to this License Agreement or the KoolSpan Solution. If you have questions regarding the KoolSpan Solution or if you are interested in obtaining more information concerning KoolSpan and its products or services, please contact KoolSpan at (240) 880-4400.