FIDELITY HEIGHT SOFTWARE END USER LICENSE AGREEMENT
IMPORTANT – THIS IS A LEGAL AGREEMENT BETWEEN YOU AND FIDELITY HEIGHT LLC.
ACCEPTANCE OF AGREEMENT: By selecting “I Accept” or signing at the end of this Agreement, or by installing or using the software and other Licensed Materials (defined below), you acknowledge and agree that you have had the opportunity to read this Software License Agreement (“Agreement”), have understood it, and confirm that you will be legally bound by each of the terms and conditions of this Agreement. For purposes of this Agreement, “you” means: (i) you as an individual, if you ordered the software for your personal use or use as a sole proprietor; or (ii) the corporation, institution, partnership, organization or other entity that ordered the software and on whose behalf you as an individual are acting. If you disagree with any of the terms and conditions of this Agreement, or do not agree to be bound by the terms and conditions of this Agreement, you are required to select “I Do Not Accept” (and not sign at the end of this Agreement), in which case: (iii) Fidelity Height hereby revokes any interests or rights you may have gained in respect of the Licensed Materials; (iv) you are not permitted to install or use the Licensed Materials; and (v) the Licensed Materials must be permanently deleted from your computer(s).
LICENSED MATERIALS: As used in this Agreement, the term “Software” means the machine-readable object code of the Fidelity Height LLC’s Fidelity Lock encryption software (including all variants, modifications, enhancements, updates, releases, editions, copies and versions) made available to you for download in response to your Order, including: (i) any software owned by a third party, other than open source software, that is incorporated into the Software (“Third Party Software”); but excluding (ii) any open source software that is incorporated into, accompanying or distributed with the Software (“Open Source Software”). “Documentation” means the user manuals and documentation published by Fidelity Height LLC and made available to you for download in connection with the Software. “Licensed Materials” means, together, the Software and the Documentation.
FIDELITY HEIGHT LLC MAKES NO REPRESENTATIONS OR WARRANTIES, AND THERE ARE NO CONDITIONS, OF ANY KIND WHATSOEVER, WHETHER EXPRESS OR IMPLIED OR ARISING BY STATUTE OR OTHERWISE IN LAW OR EQUITY OR BY CUSTOM OR FROM COURSE OF DEALING OR USAGE OF TRADE, INCLUDING ANY IMPLIED WARRANTIES ARISING BY STATUTE OR OTHERWISE IN LAW OR EQUITY OR BY CUSTOM OR FROM COURSE OF DEALING OR USAGE OF TRADE, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABLE QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, IN CONNECTION WITH (i) THE LICENSED MATERIALS OR SUPPORT SERVICES, (ii) ANY OPEN SOURCE SOFTWARE, (iii) ANY THIRD PARTY SOFTWARE, OR (iv) ANY PRODUCTS OR SERVICES NOT PROVIDED BY FIDELITY HEIGHT LLC, INCLUDING ANY CLOUD OR OTHER THIRD PARTY HOSTING SERVICES , ALL OF WHICH ARE EXPRESSLY DISCLAIMED BY FIDELITY HEIGHT LLC.
INDEMNITY: Fidelity Height LLC will defend or at its option settle any claim or proceeding brought against you to the extent that it is based on an assertion that your Permitted Use of the Software in accordance with this Agreement constitutes direct infringement of any Canadian or United States copyright, and will indemnify you against all reasonable costs and damages finally awarded against you which result from any such claim or proceeding, provided that you notify Fidelity Height LLC promptly in writing of any such claim or proceeding and give Fidelity Height LLC full and complete authority, information and assistance to defend such claim or proceeding and any negotiations for a compromise or settlement. Fidelity Height LLC will have no liability or obligation to you hereunder for any copyright infringement or any assertion, claim or proceeding relating thereto to the extent resulting from: (i) the combination of the Software with any other products not furnished by Fidelity Height LLC; (ii) any addition to or modification of the Software made by any person or entity other than Fidelity Height LLC; (iii) any software or other technology not claimed to be owned by Fidelity Height LLC, including the Third Party Software and the Open Source Software and any materials related thereto; or (iv) any use of the Software outside of the Permitted Use. Fidelity Height LLC will have no obligation hereunder for any costs incurred by you without Fidelity Height LLC expressing prior written authorization. If the Software or any part thereof becomes, or in Fidelity Height LLC opinion is likely to become, the subject of any claim of infringement, Fidelity Height LLC will have the right, at Fidelity Height LLC’s option and expense, to either (i) obtain for you the right to continue using the Software; (ii) replace the Software with a version that is non-infringing, or (iii) terminate this Agreement and provide you with a pro-rata refund of the Fees paid by you for the then current Term. In the case of a perpetual license, such refund will be calculated based on amortization of the Perpetual License Fee over a five (5) year period on a straight-line basis. This provision states the sole, exclusive and entire liability of Fidelity Height LLC, and your sole, exclusive and entire remedy, with respect to any claim of copyright or other intellectual property infringement with respect to the Software, and any part thereof.
LIMITATION OF LIABILITY: UNDER NO CIRCUMSTANCE WILL FIDELITY HEIGHT LLC OR ANY OF FIDELITY HEIGHT LLC’S AFFILIATES BE LIABLE TO YOU FOR ANY LOSS OF PROFITS, REVENUE OR BUSINESS OPPORTUNITIES, OR FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF WARRANTY, CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF FIDELITY HEIGHT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF SUCH DAMAGES WERE FORESEEABLE. FOR GREATER CERTAINTY, WITHOUT LIMITING THE FOREGOING, FIDELITY HEIGHT SHALL NOT BE LIABLE FOR ANY LOSS OR COMPROMISE OF DATA OR INABILITY TO ACCESS OR USE DATA IF YOU NEGLECT TO BACKUP YOUR FIDELITY LOCK PASSWORD, IF YOU CANNOT RECALL YOUR PASSWORD OR IF YOU BECOME THE SUBJECT OF ANY RANSOMWARE OR OTHER CYBER ATTACK.
FIDELITY HEIGHT LLC’S AGGREGATE LIABILITY RELATING TO THE LICENSED MATERIALS, THE SUPPORT SERVICES OR OTHERWISE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT HOWEVER CAUSED, IS LIMITED TO THE FEES PAID TO FIDELITY HEIGHT LLC BY YOU IN THE NINETY (90) DAYS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
You agree that the limitation on the liability of Fidelity Height LLC and its affiliates and the limited remedies available to you under this agreement are understood by you, shall apply notwithstanding a fundamental breach of contract by Fidelity Height LLC, and that the Fees for the Licensed Materials and Support Services and other provisions in this Agreement were determined in consideration of such limitations.
CONFIDENTIAL INFORMATION: For purposes of this Agreement, the term “Confidential Information” means any information pertaining to Fidelity Height LLC’s business, whether disclosed orally, in writing or electronically. Confidential Information specifically includes the Licensed Materials and any trade secrets and information contained in or relating to the Licensed Materials or Fidelity Height LLC’s other computer software programs, technical information, know-how, processes, future products, marketing plans or proposals, financial and sales information, subcontractor and employee lists, existing, inactive or potential customer lists, and all other customer information, whether developed, acquired by or licensed to Fidelity Height LLC, and including all information which Fidelity Height LLC identifies in a conspicuous place as being “confidential” or “trade secret”.
The term Confidential Information as used in this Agreement shall not include any information which: (a) was in the public domain at the time of disclosure by Fidelity Height LLC to you; (b) is published or otherwise comes into the public domain after its disclosure to you through no violation of this Agreement by you; (c) is disclosed to you by a third party not under an obligation of confidence to Fidelity Height LLC; (d) is independently developed by or for you without reference to Fidelity Height LLC’s Confidential Information; or (e) is required to be disclosed by any law or governmental regulation or produced under order of a court of competent jurisdiction, provided, however, that you provide Fidelity Height LLC written notice of such request or order and Fidelity Height LLC is provided with an opportunity to attempt to limit such disclosure.
CONFIDENTIALITY OBLIGATIONS: You will take all reasonable precautions necessary to safeguard Fidelity Height LLC’s Confidential Information, including: (i) taking all such actions as a prudent person would take to protect its own confidential information; and (ii) such other measures as Fidelity Height LLC or its authorized representatives may reasonably request from time to time. You will not allow the removal, copying, or defacement of any confidentiality or proprietary notice placed on the Licensed Materials. The placement of copyright notices on any portion of the Licensed Materials will not constitute publication or otherwise impair their confidential nature.
NO WARRANTY: YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE LICENSED APPLICATION IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED APPLICATION AND ANY SERVICES PERFORMED OR PROVIDED BY THE LICENSED APPLICATION ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND LICENSOR HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE LICENSED APPLICATION AND ANY SERVICES, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND OF NONINFRINGEMENT OF THIRD-PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE LICENSED APPLICATION OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.