END USER LICENCE AGREEMENT

This End User Licence Agreement (“EULA”) between You and Intelex covers Your use of the Software. This document incorporates by reference Intelex’s General Terms and Conditions which can be found on the company’s website here:    https://www.intelexvision.com/legal/generalterms/

Together with any Product Specific Terms that may apply to the Software You acquire, the terms of which are incorporate by reference into this EULA. Definitions of capitalised terms are in Section 13 (Definitions).

You agree to be bound by the terms of this EULA through (a) Your use of the Software; or (b) Your express agreement to this EULA; or (c) Your download or installation of the Software, either Yourself or on Your behalf (such as via a system integrator or Software distributor/partner).

You warrant that, if the download or installation of the Software is carried out on your behalf by a Third Party, such download or installation is carried out with your authority and such Third Party’s acceptance of the EULA is as your agent and on your behalf.

If You do not have authority to enter into this EULA or You do not agree with its terms, do not use the Software. You may request a refund for the Software within 30 days of Your initial purchase provided You return the Software to the Approved Source and disable or uninstall it. This paragraph does not apply where You have expressly agreed to end user licence terms with Intelex as part of a transaction with an Approved Source.

2.1. Licence and Right to Use. Intelex grants You a non-exclusive, non-transferable (a) licence to use the Software for Your direct benefit during the Usage Term and as set out in Your Entitlement and this EULA (collectively, the “Usage Rights”).

2.2. Use by Third Parties. You may permit Authorised Third Parties to exercise the Usage Rights on Your behalf, provided that You are responsible for (a) ensuring that such Authorised Third Parties comply with this EULA and (b) any breach of this EULA by such Authorised Third Parties.

2.3. Beta and Trial Use. If Intelex grants You Usage Rights in the applicable Software on a trial, evaluation, beta or other free-of-charge basis (“Evaluation Software and Services”), You may only use the Evaluation Software and Services on a temporary basis for the period limited by the licence key or specified by Intelex in writing.  If there is no period identified, such use is limited to 30 days after the Evaluation Software and Services are made available to You.  If You fail to stop using and/or return the Evaluation Software and Services or the equipment on which it is authorised for use by the end of the trial period, You may be invoiced for its list price and agree to pay such invoice.  Intelex, in its discretion, may stop providing the Evaluation Software and Services at any time, at which point You will no longer have access to any related data, information, and files and must immediately cease using the Software.  The Evaluation Software and Services may not have been subject to Intelex’s usual testing and quality assurance processes and may contain bugs, errors, or other issues.  Except where agreed to in writing by Intelex, You will not put Evaluation Software and Services into production use.  Intelex provides Evaluation Software and Services “AS-IS” without support or any express or implied warranty or indemnity for any problems or issues, and Intelex will not have any liability relating to Your use of the Evaluation Software and Services.

2.4. Upgrades or Additional Copies of Software. You may only use Upgrades or Additional Copies of the Software beyond Your Licence Entitlement if You have (a) acquired such rights under a support agreement covering the applicable Software; or (b) You have purchased the right to use Upgrades or additional copies separately. For further details see https://www.intelexvision.com/legal/license-policy/

2.5. Interoperability of Software. If required by law and upon Your request, Intelex will provide You with the information needed to achieve interoperability between the Software and another independently created program, provided You agree to any additional terms reasonably required by Intelex. You will treat such information as Confidential Information.

2.6. Subscription Renewal. Usage Rights in Software acquired on a subscription basis will automatically renew for the renewal period indicated on the order You or Your Intelex Partner placed with Intelex (“Renewal Term”) unless: (a) You notify Your Approved Source in writing at least 45 days before the end of Your then-current Usage Term of Your intention not to renew; or (b) You or Your Intelex Partner elect not to auto-renew at the time of the initial order placed with Intelex. Your Approved Source will notify You reasonably in advance of any Renewal Term if there are fee changes. The new fees will apply for the upcoming Renewal Term unless You or Your Intelex Partner promptly notify Intelex in writing, before the renewal date, that You do not accept the fee changes. In that case, Your subscription will terminate at the end of the current Usage Term.

3.1. Software Generally. Unless expressly agreed in writing by Intelex, You may not (a) transfer, sell, sub-licence, monetise or make the functionality of any Software available to any Third Party; (b) remove, modify, or conceal any product identification, copyright, proprietary, intellectual property notices or other marks; (c) reverse engineer, decompile, decrypt, disassemble, modify, or make derivative works of the Software; or (d) use Intelex Content other than as part of Your permitted use of the Software.

Intelex may end the life of Software, including component functionality (“EOL”), by providing written notice on www.intelexvision.com or www.isentryai.com.

If You or Your Approved Source prepaid a fee for Your use of the Software that becomes EOL before the expiration of Your then-current Usage Term, Intelex will use commercially reasonable efforts to transition You to a substantially similar Software. If Intelex does not have substantially similar Software, then Intelex will credit You or Your Approved Source any unused portion of the prepaid fee for the Software that has been declared EOL (“EOL Credit”).  The EOL Credit will be calculated from the last date the applicable Software is available to the last date of the applicable Usage Term.  Such credit can be applied towards the future purchase of Intelex products.

3.2. Protecting Account Access. You will keep all account information up to date, use reasonable means to protect Your account information, passwords, and other login credentials, and promptly notify Intelex of any known or suspected unauthorised use of or access to Your account.

3.3. Use with Third Party Products. If You use any Third-Party Products in relation to the Software, such use of the Third-Party Products is entirely at Your risk. This includes any Third-Party Products that Intelex may supply or may otherwise be available to you via an Approved Source. Intelex shall never be liable to you in any manner whatsoever in respect of any Third-Party Products, including but not limited to any direct, indirect, consequential, economic, or any other loss or harm that You may suffer in respect of Your use of such Third-Party Products. To the fullest extent possible You hereby indemnify Intelex and hold them harmless against any and all claims in relation to Your use (including the inability to use) of any Third-Party Products. You are responsible for complying with any Third-Party Provider terms, including its privacy policy.  Intelex does not provide support or guarantee ongoing integration support for products that are not a native part of the Software. For further details see https://www.intelexvision.com/legal/license-policy/

3.4. Open Source Software. Open source software not owned by Intelex is subject to separate licence terms as set out at www.Intelexvision.com/legal/opensource. The applicable open source software licences will not materially or adversely affect Your ability to exercise Usage Rights in applicable Software.

To the extent permitted by law, orders for the Software are non-cancellable. Fees for Your use of Software are set out in Your purchase terms with Your Approved Source.  If You use Software beyond Your Entitlement (“Overage”), the Approved Source may invoice You, and You agree to pay for such Overage.

5.1. Confidentiality. The Recipient will hold in confidence and use no less than reasonable care to avoid disclosure of any Confidential Information to any Third Party, except for its employees, Affiliates, and contractors who have a need to know (“Permitted Recipients”). Recipient: (a) must ensure that its Permitted Recipients are subject to written confidentiality obligations no less restrictive than the Recipient’s obligations under this EULA, and (b) is liable for any breach of this Section by its Permitted Recipients. Such nondisclosure obligations will not apply to information that: (i) is known by the Recipient without confidentiality obligations; (ii) is or has become public knowledge through no fault of the Recipient; or (iii) is independently developed by the Recipient. The Recipient may disclose the Discloser’s Confidential Information if required under a regulation, law or court order provided that the Recipient provides prior notice to the Discloser (to the extent legally permissible) and reasonably cooperates, at the Discloser’s expense, regarding protective actions pursued by the Discloser. Upon the reasonable request of the Discloser, the Recipient will either return, delete or destroy all Confidential Information of the Discloser and certify the same.

5.2. How We Use Data. Intelex will access, process and use data in connection with Your use of the Software in accordance with applicable privacy and data protection laws.  For further detail, please visit www.intelexvision.com/legal/privacy.

5.3. Notice and Consent. To the extent that Your use of the Software requires it, You are responsible for providing notice to, and obtaining consents from, individuals regarding the collection, processing, transfer and storage of their data through Your use of the Software

Except where agreed in writing, nothing in this EULA transfers ownership in, or grants any licence to, any intellectual property rights.  You retain any ownership of Your content and Intelex retains ownership of the Software and Intelex Content. Intelex may use any feedback You provide in connection with Your use of the Software as part of its business operations.

7.1. Claims. Intelex will defend any Third-Party claim against You that Your valid use of Software under Your Entitlement infringes a Third Party’s patent, copyright or registered trademark (the “IP Claim”). Intelex will indemnify You against the final judgment entered by a court of competent jurisdiction or any settlements arising out of an IP Claim, provided that You: (a) promptly notify Intelex in writing of the IP Claim; (b) fully cooperate with Intelex in the defence of the IP Claim; and (c) grant Intelex the right to exclusively control the defence and settlement of the IP Claim, and any subsequent appeal. Intelex will have no obligation to reimburse You for attorney fees and costs incurred prior to Intelex’s receipt of notification of the IP Claim. You, at Your own expense, may retain Your own legal representation.

7.2. Additional Remedies. If an IP Claim is made and prevents Your exercise of the Usage Rights, Intelex will either procure for You the right to continue using the Software or replace or modify the Software with functionality that is at least equivalent. Only if Intelex determines that these alternatives are not reasonably available, Intelex may terminate Your Usage Rights granted under this EULA upon written notice to You and will refund You a prorated portion of the fee You paid for the Software for the remainder of the unexpired Usage Term.

7.3. Exclusions. Intelex has no obligation with respect to any IP Claim based on: (a) compliance with any designs, specifications, or requirements You provide or a Third Party provides on Your behalf; (b) Your modification of any Software or modification by a Third Party; (c) the amount or duration of use made of the Software, revenue You earned, or services You offered; (d) combination, operation, or use of Software with non-Intelex products, Software or business processes; (e) Your failure to modify or replace Software as required by Intelex; or (f) any Software provided on a no charge, beta or evaluation basis.

7.4. This Section 7 states Intelex’s entire obligation and Your exclusive remedy regarding any IP Claims against You.

7.5 Third-Party Products. You hereby unconditionally and irrevocably indemnify Intelex (including its Affiliates, officers, agents, directors and employees) and agree to hold them harmless from any andall losses, damages, claims, awards, penalties, and/or costs, of whatsoever nature arising out of or pursuant to your use of any Third-Party Products (including product failures or the inability to make full use of the products) and such indemnity shall extend to the reasonable costs that may be incurred by us in defending any action (or threatened action) against Intelex.

8.1. Performance. Intelex warrants that for a period of 1 (one) year from the Delivery Date or longer as stated in Documentation, the Software substantially complies with the Documentation.

8.2. Malicious Code. Intelex will use commercially reasonable efforts to deliver the Software free of Malicious Code.

8.3. Qualifications. Sections 8.1 and 8.2 do not apply if the Software or the equipment on which it is authorised for use: (a) has been altered, except by Intelex or its Authorised Representative; (b) has been subjected to abnormal physical conditions, accident or negligence, or installation or use inconsistent with this EULA or Intelex’s instructions; (c) is acquired on a no charge, beta or evaluation basis; (d) is not an Intelex-branded product or service; or (e) has not been provided by an Approved Source. Upon Your prompt written notification to the Approved Source during the warranty period of Intelex’s breach of this Section 8, Your sole and exclusive remedy (unless otherwise required by applicable law) is, at Intelex’s option, either (i) repair or replacement of the applicable Software or (ii) a refund of the licence fees paid or due for the non-conforming Software excluding any amounts paid under a service level agreement/objective, if applicable.  

8.4 Intelex makes no warranties or representations with respect to any Third-Party Products or Third-Party Service Providers.

8.5 Where Intelex provides a refund of licence fees paid for Software, You must return or destroy all copies of the applicable Software. Except as expressly stated in this Section, to the extent allowed by applicable law, Intelex expressly disclaims all warranties and conditions of any kind, express or implied, including without limitation any warranty, condition or other implied term as to merchantability, fitness for a particular purpose or non-infringement, or that the Software will be secure, uninterrupted or error free. If You are a consumer, You may have legal rights in Your country of residence that prohibit the limitations set out in this Section from applying to You, and, where prohibited, they will not apply.

9.1 Neither party will be liable for indirect, incidental, exemplary, special or consequential damages; loss or corruption of data or interruption or loss of business; or loss of revenues, profits, goodwill or anticipated sales or savings. The maximum aggregate liability of each party under this EULA is limited to (a) for claims solely arising from Software licensed on a perpetual basis, the fees received by Intelex for that Software; or (b) for all other claims, the fees received by Intelex for the applicable Software and attributable to the 12-month period immediately preceding the first event giving rise to such liability.

9.2 These limitations of liability do not apply to liability arising from (a) Your failure to pay all amounts due; or (b) Your breach of Sections 2.1 (Licence and Right to Use), 3.1 (Software Generally), or 12.8 (Export). This limitation of liability applies whether the claims are in warranty, contract, tort (including negligence), infringement, or otherwise, even if either party has been advised of the possibility of such damages. Nothing in this EULA limits or excludes any liability that cannot be limited or excluded under applicable law. This limitation of liability is cumulative and not per incident.

9.3 Notwithstanding anything to the contrary in this EULA, Intelex shall never incur any liability to You or any Third-Party with respect to Your use (or inability to use) of any Third-Party Product, including in respect of any Third-Party Product failures. You irrevocably agree that Your sole remedy in relation to any claims related to Third-Party Products shall be to claim directly from such Third-Party Products supplier. In the event that this clause 9.3 is held to be invalid, then in such instance You irrevocably agree that the maximum liability of Intelex shall be limited to the fees received by Intelex for the applicable Software and attributable to the 12-month period immediately preceding the first event giving rise to such liability.

10.1. Suspension. Intelex may immediately suspend Your Usage Rights if You breach Sections 2.1 (Licence and Right to Use), 3.1 (Software Generally), or 12.8 (Export).

10.2. Termination. If a party materially breaches this EULA and does not cure that breach within 30 days after receipt of written notice of the breach, the non-breaching party may terminate this EULA for cause. Intelex may immediately terminate this EULA if You breach Sections 2.1 (Licence and Right to Use), 3.1 (Software Generally), or 12.8 (Export). Upon termination of the EULA, You must stop using the Software and destroy any copies of Software and Confidential Information within Your control. If this EULA is terminated due to Intelex’s material breach, Intelex will refund You or Your Approved Source, the prorated portion of fees You have prepaid for the Usage Rights beyond the date of termination. Upon Intelex’s termination of this EULA for Your material breach, You will pay Intelex or the Approved Source any unpaid fees through to the end of the then-current Usage Term. If You continue to use or access any Software after termination, Intelex or the Approved Source may invoice You, and You agree to pay, for such continued use.

During the Usage Term and for a period of 12 months after its expiry or termination, You will take reasonable steps to maintain complete and accurate records of Your use of the Software sufficient to verify compliance with this EULA (“Verification Records”). Upon reasonable advance notice, and no more than once per 12-month period, You will, within 30 days from Intelex’s notice, allow Intelex and its auditors access to the Verification Records and any applicable books, systems (including Intelex product(s) or other equipment), and accounts during Your normal business hours. If the verification process discloses underpayment of fees: (a) You will pay such fees; and (b) You will also pay the reasonable cost of the audit if the fees owed to Intelex as a result exceed the amounts You paid for Your Usage Rights by more than 5%. 

12.1. Survival. Sections 4, 5, 6, 8, 9, 10, 11 and 12 survive termination or expiration of this EULA.

12.2. Third Party Beneficiaries.  Unless it expressly states otherwise, this EULA does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this EULA.

12.3. Assignment and Subcontracting. Except as set out below, neither party may assign nor novate this EULA in whole or in part without the other party’s express prior written consent. Intelex may (a) by written notice to You, assign or novate this EULA in whole or in part to an Affiliate of Intelex, or otherwise as part of a sale or transfer of any part of its business; or (b) subcontract any performance associated with the Software to Third Parties, provided that such a subcontract does not relieve Intelex of any of its obligations under this EULA.

 12.4. Intelex Partner Transactions. If You purchase Software from an Intelex Partner, the terms of this EULA apply to Your use of that Software and prevail over any inconsistent provisions in Your agreement with the Intelex Partner.

12.5. Modifications to the EULA. Intelex may change this EULA or any of its components by updating this EULA on www.intelexvision.com/legal/EULA. Changes to the EULA apply to any Entitlements acquired or renewed after the date of modification.

12.6. Compliance with Laws. Each party will comply with all laws and regulations applicable to their respective obligations under this EULA. Intelex may restrict the availability of the Software in any particular location or modify or discontinue features to comply with applicable laws and regulations.

12.7 If You use the Software in a location with local laws requiring a designated entity to be responsible for collection of data about individual end users and transfer of data outside of that jurisdiction (e.g. Russia and China), You acknowledge that You are the entity responsible for complying with such laws.

12.8. Export. Intelex’s Software, products, technology and services (collectively the “Intelex Products”) are subject to export control and sanctions laws of England and Wales and the European Union. You acknowledge and agree to the applicability of and Your compliance with those laws, and You will not receive, use, transfer, export or re-export any Intelex Products in a way that would cause Intelex to violate those laws. You also agree to obtain any required licences or authorisations.

12.9. Governing Law and Jurisdiction. This EULA, and any disputes or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation will be governed by and construed in accordance with the law of England and Wales. Each party hereby irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this EULA or its subject matter or formation.

12.10 Without prejudice to any other rights or remedies that each party may have, each party acknowledges and agrees that damages alone would not be an adequate remedy for any breach of the terms of this EULA by the other party. Accordingly, either party may seek interim injunctive relief in any court of appropriate jurisdiction with respect to any alleged breach of Intelex’s intellectual property or proprietary rights.

12.11. Notice. Any notice delivered by Intelex to You under this EULA will be delivered via email, regular mail or postings on www.intelexvision.com or www.isentryai.com.  Notices to Intelex should be sent to Intelex Vision Ltd, Admirals Office, Main Gate Road, The Historic Dockyard, Chatham, United Kingdom ME4 4TZ, unless this EULA, applicable Product Specific Terms or an order specifically allows other means of notice.

12.11. Force Majeure. Except for payment obligations, neither party will be responsible for failure to perform its obligations due to an event or circumstances beyond its reasonable control.

12.12. No Waiver. Failure by either party to enforce any right under this EULA will not waive that right.

12.13. Severability. If any provision or part-provision of this EULA is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this EULA.

12.14. Entire agreement. This EULA is the complete agreement between the parties with respect to the subject matter of this EULA and supersedes all prior or contemporaneous communications, understandings or agreements (whether written or oral).

12.15. Translations. Intelex may provide local language translations of this EULA in some locations.  You agree that those translations are provided for informational purposes only and if there is any inconsistency, the English version of this EULA will prevail.

12.16. Order of Precedence. If there is any conflict between this EULA and any Product Specific Terms expressly referenced in this EULA, the order of precedence is: (a) such Product Specific Terms; (b) this EULA (excluding the Product Specific Terms and any Intelex policies); then (c) any applicable Intelex policy expressly referenced in this EULA.

12.17 No Partnership or Agency. Nothing in this EULA is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.

“Affiliate” means any corporation or company that directly or indirectly controls, or is controlled by, or is under common control with the relevant party, where “control” means to: (a) own more than 50% of the relevant party; or (b) be able to direct the affairs of the relevant party through any lawful means (e.g., a contract that allows control).

“Approved Source” means Intelex or an Intelex Partner.

“Authorised Third Parties” means Your Users, Your Affiliates, Your Third-Party Service Providers, and each of their respective Users permitted to access and use the Software on Your behalf as part of Your Entitlement.

“Confidential Information” means non-public proprietary information of the disclosing party (“Discloser”) obtained by the receiving party (“Recipient”) in connection with this EULA, which is (a) conspicuously marked as confidential or, if verbally disclosed, is summarised in writing to the Recipient within 14 days and marked as confidential; or (b) is information which by its nature should reasonably be considered confidential whether disclosed in writing or verbally.

“Delivery Date” means the date agreed in Your Entitlement, or where no date is agreed: (a) where Usage Rights in Software are granted for Software, the earlier of the date Software is made available for download or installation, or the date that Intelex ships the tangible media containing the Software.

“Documentation” means the technical specifications and usage materials officially published by Intelex specifying the functionalities and capabilities of the applicable Software.

“Entitlement” means the specific metrics, duration, and quantity of Software that You commit to acquire from an Approved Source through individual acquisitions or Your participation in an Intelex buying program.

“Intelex” “we” “our” or “us” means Intelex Vision Ltd. or its applicable Affiliate(s).

“Intelex Content” means any (a) content or data provided by Intelex to You as part of Your use of the Software and (b) content or data that the Software generates or derives in connection with Your use.  Intelex Content includes geographic and domain information, rules, signatures, threat intelligence and data feeds and Intelex’s compilation of suspicious URLs.

“Intelex Partner” means an Intelex authorised reseller, distributor or systems integrator authorised by Intelex to sell Software.

“Malicious Code” means code that is designed or intended to disable or impede the normal operation of, or provide unauthorised access to, networks, systems, Software other than as intended by the Software (for example, as part of some of Intelex’s security products).

“Product Specific Terms” means additional product related terms applicable to the Software You acquire as set out at www.Intelexvision.com/legal/softwareterms.  

“Software” means the iSentry Video-analysis Software Suite, which is composed of: an Unusual Behaviour module, based on an unbiased and unsupervised self-learning algorithm that learns the normal behaviour patterns of objects captured on a CCTV feed, generating alerts on detected unusual behaviour; a TREX (Threat Detection and Extraction) module, aimed at perimeter and area intrusion detection; a Deep Learning Object and Behaviour Classification Module; an automated AI Rules and Logic Engine Module for contextualisation and additional optional modules such as facial recognition including all Upgrades, firmware, and applicable Documentation related thereto.

“Third-Party Products” means any products or services other than the Software whether they are used directly or indirectly in relation to the Software, including any products or services that are provided by an Approved Source.

“Upgrades” means all updates, upgrades, bug fixes, error corrections, enhancements and other modifications to the Software.

“Usage Term” means the period commencing on the Delivery Date and continuing until expiration or termination of the Entitlement, during which period You have the right to use the applicable Software.

“User” means the individuals (including contractors or employees) permitted to access and use the Software on Your behalf as part of Your Entitlement.

“You” means the individual or legal entity purchasing the Software.

IMPORTANT — READ CAREFULLY:  This is a legal agreement between YOU (an individual or single entity (“you[r]”) and Intelex Vision Ltd. and its licensors (“Licensor”) pertaining to the software you are about to install, copy, access or otherwise use, including any documentation which may be provided therewith (singularly and collectively, the “Software”). Licensor licenses the Software to you only upon the express condition that you accept all of terms and conditions contained in this software license agreement (the “Agreement”). You should carefully read the following terms and conditions before using the Software. By opening the sealed package, installing, copying, accessing, or otherwise using the Software, you accept these terms and conditions and understand that they will be legally binding on you. If you do not agree to these terms, then Licensor is unwilling to license the Software to you. If you do not agree with them, or do not want them binding on you, you must not install, copy, access, or otherwise use the Software, and you may return the Software for a full refund (less any shipping fees) within thirty (30) days of your license purchase date (the “Product Return Period”). After the Product Return Period, any and all license fees paid to Licensor will be non-refundable. This Agreement may be accessed at any time by selecting “About” in the Help Menu of the Software.

IMPORTANT WARNING:  AS WITH MOST SOFTWARE PROGRAMS, IT IS CRITICAL FOR YOU TO REGULARLY BACK UP YOUR DATA. DATA BACK UP IS SOLELY YOUR RESPONSIBILITY. IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY LOSS OF DATA.

The Software is protected by copyright laws, international copyright treaties, and other intellectual property laws and treaties. The Software is licensed, not sold, as follows: Licensor hereby grants and you accept a non-exclusive, non-transferable, limited license, subject to each provision of this Agreement, to download, install, activate, and use machine-readable object code versions of the Software on the number of computers expressly authorized in writing by Licensor or its authorized distributor (the “License”). The License granted to you is solely for your personal or business use and does not extend to any third party. All rights not expressly granted to you are hereby reserved by Licensor.

1.1. ADDITIONAL LICENSE RESTRICTIONS. Except as specifically permitted by this Agreement, Licensee shall not: 

1.1.1.   Allow any third party to use or access the Software;

1.1.2.   Copy (except as permitted by applicable law or as provided in this Agreement), sell, modify, translate, transfer, reverse engineer, decompile or disassemble the Software;

1.1.3.   Remove any Software proprietary notice, label or mark, whether in machine language or human-readable form;

1.1.4.   Transmit or distribute the Software to any person outside Licensee’s internal business organization(s) (for the sake of clarity, in no event may this Agreement, including the License granted to you, be transferred to any third party without Licensor’s express prior written consent);

1.1.5.   Create any derivative work that is based on or incorporates the Software;

1.1.6.   Install, use, or operate the Software in connection with:  (a) any Application Service Provider (“ASP”), cloud-based, or similar service, other than pursuant to a duly authorized License therefor;  (b) any service bureau by which any third party can access the Software or by which information produced by the Software is sold or accessible to any third party; (c) any virtual machine, including through use of VMWare, Virtual PC, Windows Terminal Services, RDP, RDS, Citrix, the Internet, or by using any similar technology whether now known or later created (singularly and collectively, “virtual machine”); or (d) any of the foregoing Sections 1.1.6(a) through (c) above, inclusive, whether through use of any technology now known or later devised;

1.1.7.   License, sublicense, assign, delegate, or otherwise transfer the License or any right or obligation related to it for any reason without Licensor’s prior written consent. Any attempt to license, sublicense, assign, delegate or transfer this license, by contract, statute, corporate merger of any sort, regulation or court order without Licensor’s prior written consent shall be void;

1.1.8.   Export the Software outside of the country in which it was purchased without Licensor’s express prior written consent; or

Upon expiration or termination of this Agreement for any reason, this License shall terminate and any user accessing the Software shall immediately cease to use or have access and support for it. If you breach any provision of this Agreement, including by making any unauthorized copy of the Software or by failing to comply with any prohibition set forth in this Agreement, the License shall immediately terminate automatically.

1.2.  UPDATES. If the Software is an update (“New Version”) to Software previously licensed to you (“Previous Version”), you must destroy all copies of the Previous Version immediately following installation of the New Version. Licensor reserves the right to require you to show satisfactory proof that the Previous Version was destroyed. If Licensor or its authorized agent provides you additional Software that supplements or extends the Software, that additional Software shall be subject to this Agreement’s terms and conditions unless Licensor otherwise agrees in writing. Notwithstanding the foregoing, you may retain one (1) back-up copy of the Previous Version and may use it solely: (i) to install the New Version hereby licensed; and (ii) for archival (back-up) purposes to reinstall the New Version hereby licensed if the initial installation fails. Under no circumstances may you otherwise operate the Previous Version and your license rights to each such Previous Version are terminated upon your first successful installation of the New Version. If you receive your first license of the Software electronically, and a second on physical media, that second copy shall be deemed your back-up copy and you shall make no other back-ups.

1.2.1.   UPDATE POLICY. Any Software license purchased, whether for a Previous Version or a New Version, will not include, and you shall not be entitled to, any free Software updates. 

1.3.    MAINTENANCE. You will receive the maintenance services described in this section or as otherwise offered by the Licensor from time-to-time  (the “Maintenance”) for a period of one (1) year from your Software license purchase date (the “Initial Maintenance Term” or “IMT”). When the IMT expires, and provided that you pay Licensor to renew the Maintenance, you will receive continued Maintenance for the extended period set forth in the invoice Licensor provides to you. During the period in which you already are receiving Maintenance pursuant to this Agreement (whether during the IMT or any Maintenance renewal term: an “Existing Service Term”), you will receive Maintenance for any additional Software module(s) and/or workstation(s) you add during an Existing Service Term, but shall not be entitled to an extension of the then-current Existing Service Term as a result of adding any such new Software Module(s) and/or workstation(s). For each Software license you purchase Maintenance includes: one (1) session, for no longer than one (1) hour, of online/telephone support and training pertaining to installation/setup questions and integration issues relating to the Software. Unless Licensor advises you otherwise, Maintenance will be provided twelve (12) hours a day, between the hours of 8:00 a.m. and 8:00 p.m. Eastern Standard Time, Monday through Friday excluding statutory holidays in the state of New York (U.S.A.). During the Existing Service Term, you also will be given the opportunity to receive available security updates and bug fixes. If you do not avail yourself to any such security update or bug fix during the Existing Service Term, you will not be entitled to any such improvement thereafter. Notwithstanding the foregoing, Microsoft® Corporation no longer supports the Windows® XP operating system, including via security updates, bug fixes, and other technical support. Licensor consequently cannot provide Maintenance, including any technical support, bug fixes, or security updates for any Licensor products running on any computer running on the Windows® XP operating system, or on any operating system discontinued or otherwise no longer supported by its manufacturer. Please note Licensor products may not work properly or securely if used on any such no longer operating system.

It is hereby understood and agreed that as between Licensor and you, Licensor is the owner of all rights, title and interest, including the copyright and all other intellectual property rights, to the Software, including in all formats and regardless how delivered to you (whether on media or if distributed electronically) and all subsequent copies thereof, regardless of the media or form in which the Software or copies thereof may exist. Except as expressly provided herein, you do not acquire any rights to the Software through the purchase of licenses to the Software or otherwise.

Unauthorized copying of the Software or failure to comply with the above restrictions will result in automatic termination of this Agreement. Unauthorized copying or distribution of the Software constitutes copyright infringement and may be punishable in a federal criminal action by a fine of up to U.S. $250,000 and imprisonment up to five (5) years. In addition, federal civil remedies for copyright infringement allow for the recovery of actual damages based on the number of copies produced or statutory damages of up to U.S. $150,000 for willful copyright infringement.

This Agreement shall continue for as long as you use the Software licensed herein or until terminated by Licensor, whichever occurs first. Without prejudice to any other rights, this Agreement will terminate if you fail to pay Licensor any amount due or if you fail to comply with any of its terms or conditions. You agree, upon termination, to immediately destroy all copies of all Software.

This Software is furnished “AS IS” and with all faults. Licensor, its suppliers, resellers, technical support / Maintenance providers, and distributors (singularly and collectively, the “Disclaiming Parties”) do not make, and you do not receive, any warranties, either express, implied, statutory, or in any communication with you. To the maximum extent permitted by applicable law, the Disclaiming Parties disclaim all other warranties and conditions, either express or implied, including implied warranties or conditions of merchantability, fitness for a particular purpose, title, non-infringement, any warranty against data loss, computer virus, loss of hardware or software functionality, or any other harmful effects, or any warranty that operation of the software will be uninterrupted or error-free. For the sake of clarity, the Disclaiming Parties do not make, and you do not receive, any representation or warranty as to the stability or functionality of any Software feature. The Disclaiming Parties hereby notify you that the Software and/or any related data may be or become unstable, corrupted, or otherwise nonfunctional, including by any corrupted record, missing record, operating system instability, virus, operating system misconfiguration, hardware failure, hardware conflict, software conflict, user data misconfiguration, and/or data loss.

You expressly assume the entire risk and cost associated with the Software, including risk resulting from Maintenance services (whether performed in whole, in part, or not at all), or from any virus, downloaded material, harmful component, or through any Internet use of the Software or any site or server through which the Software is available. You are solely responsible for any damage that results from or is associated with use of the Software. The Disclaiming Parties shall not be liable in any manner whatsoever for the results obtained through use of the Software. Persons using the Software are responsible for the supervision, management, and control of the Software, including determination of the appropriate uses for the Software and the selection of the Software and other programs to achieve intended results. Persons using the Software are responsible for testing the reliability and accuracy of the Software’s output.              

If the Software was purchased in the United States, the above exclusions may not apply to you since some states do not allow the exclusion of implied warranties. You may also have other rights, which vary from state to state. The entire risk arising out of use or performance of the Software remains with you.

The limitation of liability is to the maximum extent permitted by applicable law. In no event shall the Disclaiming Parties be liable for any damages, whether arising in contract, tort, or otherwise and including any special, incidental, indirect, consequential, punitive, or exemplary damages whatsoever (including damages for loss of business profits, business interruption, loss or corruption of business information or other data, cost of cover, or any other pecuniary loss) arising out of the use or inability to use the Software or the failure to provide full or adequate support / Maintenance services, even if Licensor has been advised of the possibility of such damages. You hereby acknowledge that the license fee amount reflects this allocation of risk, and in any case the entire liability of the Disclaiming Parties under any provision of this Agreement shall be limited to the amount actually paid by you for the Software. Because some states do not allow the exclusion or limitation of liability, the above limitation may not apply to you.

5.1. SURVEILLANCE LIABILITY DISCLAIMER. The Disclaiming Parties: (i) do not make, and you do not receive, any representation or warranty as to any applicable law or regulation that may pertain to use of the Software by you for video and/or audio surveillance, recording, or any similar purpose(singularly and collectively, “Surveillance”), and (ii) hereby notify you of your obligation to comply with any and all local, state, federal, and international laws concerning surveillance. You hereby acknowledge that under no circumstance shall the Disclaiming Parties be liable for any use of the Software by you, whether in connection with Surveillance or otherwise, and you hereby assume any and all risks and liabilities for any such use. 

You hereby agree that Licensor has the right to require an audit (electronic or otherwise) of the Software, including the installation, use, and access thereof.  As part of any such audit, Licensor or its authorized representative will have the right, on fifteen (15) calendar days’ prior notice to you, to inspect your records, systems and facilities, including computer, server, and device identifications (MAC addresses and otherwise), serial numbers, and related information, to verify that the use of any and all of the Software is in conformance with this Agreement. You shall provide full cooperation to enable any such audit. If Licensor determines that your use is not in conformity with this Agreement, you shall immediately obtain and pay for valid licenses to bring your use into compliance with this Agreement and pay the reasonable costs of the audit. In addition to such payment rights, Licensor reserves the right to seek any other remedies available at law or in equity, whether under this Agreement or otherwise.

These items are controlled by the U.S. Government and authorized for export only to the country of ultimate destination for use by the ultimate consignee or end-user(s) herein identified. They may not be resold, transferred, or otherwise disposed of, to any other country or to any person other than the authorized ultimate consignee or end-user(s), either in their original form or after being incorporated into other items, without first obtaining approval from the U.S. government or as otherwise authorized by U.S. laws and regulations. Without limiting the generality of the foregoing, You shall not to export or re-export the Software, any part thereof, or any process or service that is the direct product of the Software (collectively referred to as the “Restricted Components”), to any country, person, or entity subject to U.S. export restrictions. You specifically agree not to export or re-export any of the Restricted Components:

7.1.  To any country to which the U.S. has embargoed or restricted the export of goods or services, including Burma, Cuba, Iran, North Korea, Sudan, Syria, or to any national of any such country, wherever located, who intends to transmit or transport the products back to such country;

7.2. To any person(s) or entity you know or have reason to know will utilize the Restricted Components in the design, development or production of nuclear, chemical or biological weapons; or

7.3. To any entity you know or have reason to know has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. government. All Software is a “commercial item” as that term is defined in 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. All Software also consists of “commercial computer software,” “computer databases,” “computer programs,” and “computer software documentation” as such terms are defined in DFARS 252.227-7014(a). Consistent with 48 C.F.R. §§ 12.212, 27.405(b), 227.7202-3 and DFARS 227.7202-3, all U.S. Government users acquire the Software with only those rights as set forth herein. Manufacturer is A&H Software, Inc., 4 Reith Street, Copiague NY 11726 (U.S.A.).

If the Software is modified, installed, or used in violation of any provision of this Agreement or any warning, instruction, or recommendation by Licensor or any of its resellers, distributors, licensors, and sub-licensees, you hereby agree to defend, indemnify and hold Licensor, its officers, employees, resellers, distributors, licensors, and sub-licensees, harmless from and against any and all claims, losses, harm, costs, liabilities, damages, and expenses (including but not limited to arbitration and court costs, reasonable attorney’s and expert witness fees and related expenses) (collectively, “Losses”) related to any third party claim, action, suit, or proceeding (a “Third Party Claim”) resulting therefrom. You hereby agree that Licensor will direct the defense of, or to otherwise handle, any and all such Third Party Claims or actions at the your expense, and that you will provide all information and assistance reasonably necessary to defend or handle same. In such cases, Licensor will not enter into any settlement of, or admit any liability with respect to, the Third Party Claim or action without your express prior written consent.  Notwithstanding the foregoing, you may, at your sole option and expense, participate in the defense of the Third Party Claim or action with additional counsel of your own choosing.  Failure to comply with this section will not relieve you of your indemnification obligations, unless such failure results in material prejudice to your defense of a Third Party Claim.

You acknowledge that monetary damages would not be an adequate remedy for the breach of certain provisions of this Agreement, including, but not limited to, those pertaining to the protection of Licensor’s proprietary rights, including its copyrights, trademarks, patent, and trade secret rights. Accordingly, if you breach or threaten to breach any of your obligations, Licensor shall be entitled, without showing or proving any actual damage sustained, to a stipulated temporary restraining order, and shall thereafter be entitled to apply for a preliminary injunction, permanent injunction, and/or order compelling specific performance, to prevent the breach of your obligations under this Agreement. Nothing in this Agreement shall be interpreted as prohibiting Licensor from pursuing or obtaining any other remedies otherwise available to it for such actual or threatened breach, including recovery of damages.

Licensor hereby provides notice to you that it collects personal and non-personal information from you for purposes including: (i) improving the Software; (ii) delivering requested Software to you; (iii) providing Maintenance; (iv) contacting you; (v) sending your transaction information, including confirmations, invoices, notices, and alerts; (vi) informing you about promotions, events, and news related to the Software; (vii) keeping internal records; (viii) investigating, deterring, and protecting against fraudulent, unauthorized, or illegal activity; and/or (ix) contacting you for market research purposes. Licensor also collects certain technical information including: (i) licensed workstation locations and identifiers; (ii) operating system language settings; (iii) the Software version number; (iv) information on hardware connected with licensed workstations (such as camera vendor / models); (v) IP addresses of licensed workstations; (vi) unique product license identifiers included in the Software license (“Product ID”); (vi) unique identifiers used to install the Software (“Product Key”); and (viii) MAC addresses and/or hard disk drive serial numbers of licensed workstations. You hereby acknowledge that Licensor, in its sole discretion, may change its data collection and use policies and practices from time to time without notice to you.  

Except as specifically provided in Section 9 above, any controversy, claim, or dispute that cannot be resolved by the Parties that arises out of or in connection with, or in relation to the interpretation, performance, breach, or alleged breach of, this Agreement, shall be submitted by either Party for the matter to be resolved exclusively by binding arbitration to be held exclusively in London, England by and pursuant to the rules of a mutually agreeable private judging service that employs retired judges of the High Court of England & Wales(“Private Judging Service” or “PJS”), or, if such PJS is unavailable, does not have arbitrators with the qualifications described in Section 11.2 below, or cannot be agreed upon by the Parties within ten (10) days of the Written Demand (see Section 11.1 below), then arbitration shall be conducted by and pursuant to the then-current rules of the Judicial Arbitration and Mediation Services ( “JAMS”), provided, however, that if the total dispute amount at issue, including counter claims, is less than $250,000, then JAMS Streamlined Arbitration Rules shall be used, and the procedures set forth below. If there is any inconsistency between the rules of the arbitration service and the procedures set forth below, the procedures set forth below shall control.

11.1. ARBITRATION INVOCATION. If a Party seeks to invoke arbitration pursuant to this Agreement, it shall transmit a written demand for arbitration to the other Party pursuant to the mechanism for giving notice specified in this Agreement (the “Written Demand”).  The Written Demand shall set forth in reasonable detail the nature and subject of the dispute and the relief requested.

11.2. SELECTION OF ARBITRATORS. The arbitration shall be conducted by one (1) arbitrator who is an independent and disinterested party with respect to the underlying dispute, the Parties, and the outcome of the arbitration, and who has at least: (a) ten (10) years’ experience working or adjudicating in the area of software licensing agreements; and (b) ten (10) years’ experience in court proceedings as a judge, and (c) ten (10) arbitrations completed with the arbitrator having served as the adjudicator.

11.3. DISCOVERY.  Unless the Parties otherwise agree in writing, the only pre-hearing discovery shall be to conduct a pre-hearing conference, to attempt to identify and reasonably narrow the issues, establish procedural matters, obtain stipulations, and to arrange for the exchange of information, including (a) reasonably limited production of relevant and non-privileged documents, and (b) the identification of witnesses to be called at the hearing, which identification shall give the witness’ name, general qualifications, and position, and a brief statement as to the general scope of the testimony to be given by the witness. The arbitrator shall decide any disputes and shall control the process concerning these pre-hearing discovery matters. Pursuant to the rules of the arbitration service, the Parties may subpoena witnesses and documents for presentation at the hearing.

11.4. CASE MANAGEMENT.  Prompt resolution of any dispute is important to the Parties, who expressly agree that arbitration shall be conducted in a reasonably efficient, expedient, and just manner. The arbitrator accordingly shall assume case management initiative and control over the arbitration process, including scheduling of events, pre-hearing discovery and activities, and the conduct of the hearing.

11.5. ARBITRATOR’S DECISION.  The arbitrator shall: (a) follow and apply applicable law; (b) grant such legal or equitable remedies and relief that the arbitrator deems just and equitable, but only to the extent that such remedies or relief could be granted by a state or federal court with jurisdiction over the matter; (c) not grant any punitive, exemplary, consequential, or incidental damages; (d) not grant any damages that exceed the limitation of liability amount set forth in Section 5 above; (e) inform the Parties in writing of arbitrator’s decision no later than ninety (90) days after the Written Demand, and such decision shall include a written statement of reasons and support; (f) not act in derogation of the clear intent of the Parties as expressed in this Agreement; and (g) be bound by each applicable provision pertaining to arbitration and the Parties’ reasonable expectations set forth in this Agreement. The decision of the arbitrator shall be final and shall be entered in any court of competent jurisdiction. The arbitration award shall be enforceable in accordance with the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, (New York, 10 June, 1958).

11.6. EXPENSES.  The arbitrator shall determine each Party’s culpability regarding the underlying dispute and each Party’s respective efforts to resolve the matter amicably prior to it being arbitrated, and the arbitrator shall determine the percentage, if any, that each Party shall be required to pay for the expenses of the arbitration, including the arbitrator’s fees, and for any payment to reimburse the other Party for its reasonable attorney’s and expert witness fees and costs in addition to any other relief to which it is entitled pursuant to the arbitration.

11.7.  CONFIDENTIALITY.  The Parties shall keep confidential the fact of the arbitration, the dispute being arbitrated, and the decision of the arbitrator, except that the Parties may make such disclosures to their respective persons who have a need to know, such as directors, trustees, management employees, witnesses, experts, investors, accountants, attorneys, lenders, insurers, and others who may be directly affected, and pursuant to any applicable securities laws. Notwithstanding the foregoing, if a Party is expressly asked by a third party about the dispute or the arbitration, the Party may disclose and acknowledge in general and limited terms that the dispute has been resolved pursuant to arbitration.

12.   GOVERNING LAW/JURISDICTION. This Agreement shall be exclusively interpreted, construed, and enforced in all respects in accordance with the laws of England & Wales without reference to its choice of law rules. The Parties hereby agree that venue for any and all disputes concerning this Agreement, or action on any obligation hereunder, will be exclusively brought in an appropriate state court in London, England and the Parties irrevocably consent to the jurisdiction of such courts for any such dispute or action. Notwithstanding the foregoing, no action brought by either Party against the other for breach of this Agreement shall be limited to breach of contract remedies and either Party may bring any additional cause(s) of action that would otherwise be available to it, including copyright infringement pursuant to Title 17 of the United States Code. You hereby expressly and specifically waive any objection you may have, pursuant to the Eleventh Amendment to the United States Constitution or otherwise, to the jurisdiction of, or any award that could be granted by, the United States Federal Courts.

13. INTERPRETATION. The defined terms used in this Agreement shall have the meanings ascribed to them. “Including” shall be deemed to mean “including, but not limited to,” regardless whether such term is initially capitalized and notwithstanding any conflicting provision of this Agreement. Headings, the title of this Agreement and/or of its defined terms and the terms used to reference each Party as used in this Agreement are for reference purposes only and in no way define, limit, construe, or describe the scope or extent of such section or in any way affect this Agreement nor shall they be used to explain or aid in the interpretation, construction, or meaning of this Agreement. The variable use of words in their singular and plural also shall not be construed to alter their substantive meaning or to affect this Agreement in any way. This Agreement shall be construed within its fair meaning and no inference shall be drawn against the drafting Party in interpreting this Agreement.

14. WAIVER / SEVERABILITY. No delay, omission, or failure to exercise any right or remedy provided for in this Agreement shall be deemed to be a waiver thereof or an acquiescence to the event giving rise to such remedy, but every such right or remedy may be exercised, from time to time, as may be deemed expedient by the party exercising such right or remedy. If any provision of this Agreement is determined by an arbitrator or court of competent jurisdiction to be prohibited or unenforceable, the parties shall have ten (10) business days to renegotiate each such provision in good faith. If the parties are unable to do so, then such provision shall be deemed narrowed to the broadest term permitted and shall be enforced as so narrowed. If any such provision is nevertheless deemed by such arbitrator or court to be unlawful, void, or unenforceable, then this Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included.

15. MERGER / ENTIRE AGREEMENT. This Agreement sets forth the entire agreement and understanding of you and Licensor relating to the subject matter herein and merges and supersedes all prior agreements, writings, commitments, discussions and understandings between them. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing signed by Licensor.

YOU HEREBY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.