END USER LICENSE AGREEMENT
This copy of software ("the Software Product") and accompanying documentation is licensed and not sold. This Software Product is protected by copyright laws and treaties, as well as laws and treaties related to other forms of intellectual property. Kimputing, Inc. or its subsidiaries, affiliates, and suppliers (collectively "Licensor") own intellectual property rights in the Software Product. The Licensee’s ("you" or "your") license to download, use, copy, or change the Software Product is subject to these rights and to all the terms and conditions of this End User License Agreement ("Agreement").
YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT BY DOWNLOADING THE SOFTWARE PRODUCT OR BY INSTALLING, USING, OR COPYING THE SOFTWARE PRODUCT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU MUST NOT INSTALL, USE, OR COPY THE SOFTWARE PRODUCT.
This Agreement entitles you to a non-transferable license to use the Licensed Application as designed. You may not assign your rights and obligations under this Agreement, or redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer your rights to the Software Product. You will make no effort to decompile, "reverse-engineer", disassemble, or otherwise attempt to derive the source code for the Software Product. You may not modify the Software Product or create any derivative work of the Software Product or its accompanying documentation. Derivative works include but are not limited to translations. You may not alter any files or libraries in any portion of the Software Product.
Consent to Use of Data
You agree that Licensor may collect and use technical data and related information, including but not limited to technical information about your device and system, that is gathered periodically to facilitate the provision of the software updates, product support and other services related to the Software Product. Licensor may use this information as long as it is in a form that does not personally identify you, to improve or market its products, services or technologies.
This EULA is effective until terminated by you or Licensor. Your rights under this EULA will terminate automatically if you fail to comply with any of its terms.
Disclaimer of Warranties and Limitation of Liability
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SOFTWARE PRODUCT IS AT YOUR SOLE RISK AND THAT THE SOFTWARE PRODUCT IS PROVIDED “AS IS,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. LICENSOR MAKES NO WARRANTIES, EXPRESS OR IMPLIED, IN FACT OR IN LAW, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OTHER THAN AS SET FORTH IN THIS AGREEMENT. LICENSOR MAKES NO WARRANTY THAT THE SOFTWARE PRODUCT WILL MEET YOUR REQUIREMENTS OR OPERATE UNDER YOUR SPECIFIC CONDITIONS OF USE.
YOU MUST DETERMINE WHETHER THE SOFTWARE PRODUCT SUFFICIENTLY MEETS YOUR REQUIREMENTS FOR SECURITY AND UNINTERRUPTABILITY. YOU BEAR SOLE RESPONSIBILITY AND ALL LIABILITY FOR ANY LOSS INCURRED DUE TO FAILURE OF THE SOFTWARE PRODUCT TO MEET YOUR REQUIREMENTS. LICENSOR WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE FOR THE LOSS OF DATA ON ANY COMPUTER OR INFORMATION STORAGE DEVICE.
UNDER NO CIRCUMSTANCES SHALL LICENSOR, ITS DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE TO YOU OR ANY OTHER PARTY FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING LOST REVENUES OR PROFITS OR LOSS OF BUSINESS) RESULTING FROM THIS AGREEMENT, OR FROM THE FURNISHING, PERFORMANCE, INSTALLATION, OR USE OF THE SOFTWARE PRODUCT, WHETHER DUE TO A BREACH OF CONTRACT, BREACH OF WARRANTY, OR THE NEGLIGENCE OF LICENSOR OR ANY OTHER PARTY, EVEN IF LICENSOR IS ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH DAMAGES.
TO THE EXTENT THAT THE APPLICABLE JURISDICTION LIMITS LICENSOR’S ABILITY TO DISCLAIM ANY IMPLIED WARRANTIES, THIS DISCLAIMER SHALL BE EFFECTIVE TO THE MAXIMUM EXTENT PERMITTED. IN NO EVENT SHALL LICENSOR’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES EXCEED THE UNUSED PORTION OF THE AMOUNT PAID FOR THE LICENSE.
Governing Law, Jurisdiction and Costs
This Agreement is governed by the laws of Texas, without regard to Texas’s conflict or choice of law provisions. If you are not a U.S. citizen or do not reside in the U.S., you hereby agree that any dispute or claim arising from this Agreement shall be governed by the applicable laws identified above and you herby irrevocably submit to the non-exclusive jurisdiction of the courts located in the jurisdiction identified above.
If any provision of this Agreement shall be held to be invalid or unenforceable, the remainder of this Agreement shall remain in full force and effect. To the extent any express or implied restrictions are not permitted by applicable laws, these express or implied restrictions shall remain in force and effect to the maximum extent permitted by such applicable laws.