FIDELITY HEIGHT LLC SOFTWARE LICENSE AGREEMENT
NOTICE TO USERS: CAREFULLY READ THE FOLLOWING LEGAL AGREEMENT. USE OF THE SOFTWARE PROVIDED WITH THIS AGREEMENT CONSTITUTES YOUR ACCEPTANCE OF THESE TERMS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT INSTALL AND/OR USE THIS SOFTWARE. USER’S USE OF THIS SOFTWARE IS CONDITIONED UPON COMPLIANCE BY USER WITH THE TERMS OF THIS AGREEMENT.
1. DEFINITIONS.
“Fidelity Height” means Fidelity Height LLC and its licensors, if any. “Software” means only the Fidelity Height software program(s) and third party software programs, in each case, supplied by Fidelity Height herewith, and corresponding documentation, associated media, printed materials, and online or electronic documentation, and all updates or upgrades of the above that are provided to you. Agreement” means this Software License Agreement.
2. LICENSE GRANT.
Fidelity Height grants to you (“Customer”) a nonexclusive, nonassignable, and nontransferable license to use the Software in object code form solely on a single central processing unit owned or leased by Customer. “Use” means storing, loading, installing, executing or displaying the Software.
3. LICENSE RESTRICTIONS.
- Customer shall not alter, merge, modify, adapt or translate the Software, or decompile, reverse engineer, disassemble, or otherwise attempt to derive the source code of the Software.
- Customer shall not sell, rent, lease, sublicense, distribute, transmit, or otherwise transfer the
- Customer shall not modify the Software or create derivative works based upon the
- Customer shall not make any copy of or otherwise reproduce the Software or the Software user
- Customer shall not export the Software into any country prohibited by the United States Export Administration Act and the regulations there under.
- In the event that Customer fails to comply with the terms of this Agreement, Fidelity Height may terminate the license and Customer must destroy all copies, printed or electronic, of the
- Customer shall not use the Software to develop any other software or other technology having the same primary function as the Software, including but not limited to using the Software in any development or test procedure that seeks to develop like software or other technology, or to determine if such other software or other technology performs in a similar manner as the
4. OWNERSHIP.
The Software is protected by United States copyright law and international treaty provisions. Customer acknowledges that no title to the intellectual property in the Software is transferred to Customer. Customer further acknowledges that title and full ownership rights to the Software shall remain the exclusive property of Fidelity Height and Customer shall not acquire any rights to the Software except as expressly set forth in this Agreement. Customer’s license confers no title or ownership in the Software and should not be construed as a sale of any right in the Software.
5. MAINTENANCE OF PASSWORD KEY CREATED.
The Software will require Customer to create a password key as a part if the installation process. The password key shall be used to enable the encryption and decryption enabling functionalities of the Software. IT IS CUSTOMER’S RESPONSIBILITY TO SAFEGUARD THE PASSWORD KEY NAD TO ENSURE THAT NO UNAUTHORIZED PERSON WILL HAVE ACCESS TO IT. IF CUSTOMER LOSES OR FORGETS THE PASSWORD KEY FIDELITY HEIGHT SHALL NOT BE LIABLE OR RESPONSIBLE FOR ANY LOSS OR COMPROMISE OF DATA OR INABILITY TO ACCESS OR USE DATA.
6. LIMITED WARRANTY
THE SOFTWARE IS PROVIDED ON AN “AS IS” BASIS. FIDELITY HEIGHT DISCLAIMS ALL WARRANTIES RELATING TO THIS SOFTWARE, WHETHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER FIDELITY HEIGHT NOR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION, OR DELIVERY OF THE SOFTWARE SHALL BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE SUCH SOFTWARE, EVEN IF FIDELITY HEIGHT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIMS. CUSTOMER BEARS ALL RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE. FIDELITY HEIGHT MAKES NO WARRANTY THAT THE SOFTWARE IS OR WILL BE DELIVERED FREE OF ANY PERSON’S OR COMPANY’S CLAIM OF PATENT, TRADEMARK, OR SIMILAR INFRINGEMENT. CUSTOMER ASSUMES ALL RISKS (INCLUDING THE RISK OF SUIT) THAT THE SOFTWARE OR ANY USE OF THE SOFTWARE WILL INFRINGE EXISTING OR SUBSEQUENTLY ISSUED PATENTS, TRADEMARKS, OR COPYRIGHTS.
TO THE EXTENT THAT SOME JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THE ABOVE LIMITATIONS OR EXCLUSION MAY NOT APPLY TO CUSTOMER TO THE EXTENT THAT LIABILITY IS BY LAW INCAPABLE OF EXCLUSION OR RESTRICTION.
7. DISCLAIMER OF LIABILITY
UNDER NO CIRCUMSTANCE WILL FIDELITY HEIGHT BE LIABLE TO CUSTOMER 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 HEIGHT LOCK PASSWORD KEY, IF YOU CANNOT RECALL YOUR PASSWORD OR IF YOU BECOME THE SUBJECT OF ANY RANSOMWARE OR OTHER CYBER ATTACK. TO THE EXTENT THAT SOME JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL DAMAGES, IN NO EVENT WILL FIDELITY HEIGHT’S LIABILITY FOR ANY CLAIM, WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY, EXCEED THE LICENSE FEE PAID BY CUSTOMER, IF ANY.
8. ENTIRE AGREEMENT
This is the entire agreement between Customer and Fidelity Height which supersedes any prior agreement or understanding, whether written or oral, relating to the subject matter of this license.
9. RESERVED RIGHTS.
All rights not expressly granted here are reserved to Fidelity Height.
10. MAINTENANCE AND SUPPORT.
Fidelity Height is not obligated to provide maintenance and support for the Software, however may provide support and maintenance for the Software to Customer at Fidelity Height’s discretion. Inquiries as to support and maintenance shall be made to [email protected].
11. MANDATORY ARBITRATION.
In the event a dispute arises between Fidelity Height and Customer concerning any aspect of this Agreement, with the exception of any disputes arising regarding intellectual property rights including patent, copyright, trademark, or trade secret rights, Fidelity Height and Customer both agree to follow this procedure: (1) discuss and attempt to negotiate a resolution of the matter; (2) submit the dispute to non-binding mediation with the assistance of a qualified and neutral mediator selected by Fidelity Height, but with the mediator’s fees paid equally by Fidelity Height and Customer; and (3) upon failure to resolve the issue according to steps (1) or (2), submit the dispute to final and binding arbitration in Santa Clara County following the procedures established by the American Arbitration Association.
IN THE EVENT OF SUCH A DISPUTE AS OUTLINED IN THIS SECTION 12, FIDELITY HEIGHT’S AGGREGATE LIABILITY RELATING TO THIS AGREEMENT, WITH THE EXCEPTION OF ANY DISPUTES ARISING REGARDING INTELLECTUAL PROPERTY RIGHTS INCLUDING PATENT, COPYRIGHT, TRADEMARK, OR TRADE SECRET RIGHTS, HOWEVER CAUSED, IS LIMITED TO THE FEES PAID TO FIDELITY HEIGHT.
12. INTELLECTUAL PROPERTY DISPUTES.
In the event a dispute arises between Fidelity Height and Customer with respect to intellectual property rights including patent, copyright, trademark, or trade secret rights related to the Software, Fidelity Height and Customer both agree to follow this procedure: (1) discuss and attempt to negotiate a resolution of the matter; (2) submit the dispute to non-binding mediation with the assistance of a qualified and neutral mediator selected by Fidelity Height, but with the mediator’s fees paid equally by Fidelity Height and Customer; and (3) upon failure to resolve the issue according to steps (1) or (2), the parties may seek further relief from either a state or federal court with appropriate jurisdiction over the dispute. With respect to disputes in which a state court has appropriate jurisdiction, the dispute shall be resolved exclusively in the Superior Court of California, County of Santa Clara. With respect to disputes in which a federal court has appropriate jurisdiction, the dispute shall be resolved exclusively in the United States District Court for the Northern District of California. Customer expressly waives any right it may otherwise have to cause any such action or proceeding to be brought or tried elsewhere.
13. GOVERNING LAW.
The license as set forth by this agreement, and any dispute arising from the relationship between Fidelity Height and Customer, which is not exclusively governed by federal law, shall be governed and determined by California law, excluding any rules or laws that direct the application of another jurisdiction’s law.
14. SEVERABILITY.
If any provision of this Agreement is held to be unenforceable, in whole or in part, such determination will not affect the validity of any other provisions of the Agreement.
15. WAIVER.
No waiver of or consent to depart from the requirements of any provision of this Agreement shall be binding against either party unless it is in writing and is signed by the party giving it. The failure of either party to exercise, and any delay of either party in exercising, any of its rights under this Agreement, in whole or in part, shall not constitute or be deemed a waiver or forfeiture of such rights, neither in the specific instance nor on a continuing basis. No single or partial exercise of any such right shall preclude any other or further exercise of such right or the exercise of any other right.
16. TRANSFER/ASSIGNMENT.
Fidelity Height may transfer and assign this Agreement and Fidelity Height’s rights and obligations pursuant to this Agreement, in whole or in part, to an affiliate, a subsidiary, or other third party without notice to Customer. With the prior written consent of Fidelity Height (not to be unreasonably withheld), Customer may transfer and assign this Agreement and Customer’s rights pursuant to this Agreement to another party provided that: (i) that party agrees in writing with Fidelity Height to become subject to the terms and conditions of this Agreement; and (ii) Customer is not transferring or assigning this Agreement or rights under this Agreement to any third party for the purposes of monetary gain. Customer is otherwise not permitted to transfer or assign this Agreement or any rights or obligations under this Agreement to any third party.