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| ELEMENT30 LICENSE AND SERVICES AGREEMENT |
| PLEASE READ THIS ELEMENT30 LICENSE AND SERVICES AGREEMENT CAREFULLY BEFORE DOWNLOADING, INSTALLING OR USING THE SOFTWARE OR ANY ACCOMPANYING DOCUMENTATION (COLLECTIVELY, THE “ELEMENT30 SOFTWARE”). THIS ELEMENT30 LICENSE AND SERVICES AGREEMENT (“AGREEMENT”) AND OUR PRIVACY POLICY [INSERT LINK], INCORPORATED HEREIN BY REFERENCE, ESTABLISHES THE TERMS AND CONDITIONS UNDER WHICH ELEMENT30, INC. (“ELEMENT30”) WILL PERMIT YOU TO USE THIS VERSION OF THE ELEMENT30 SOFTWARE AS PART OF YOUR ACCESS TO AND USE OF THE ELEMENT30 SERVICES (THE “ELEMENT30 SERVICES”). |
| BY CLICKING ON THE “I ACCEPT” BUTTON BELOW OR BY INSTALLING THE ELEMENT30 SOFTWARE OR BY USING THE ELEMENT30 SERVICES YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND AGREE TO BE BOUND BY ALL OF ITS TERMS. IF YOU DO NOT ACCEPT ALL OF THE TERMS OF THIS AGREEMENT, ELEMENT30 IS UNWILLING TO LICENSE THE ELEMENT30 SOFTWARE TO YOU OR PERMIT YOU TO USE THE ELEMENT30 SERVICES, IN WHICH EVENT YOU SHOULD CLICK THE "I DO NOT ACCEPT" BUTTON AND DISCONTINUE THE INSTALLATION OR USE OF THE ELEMENT30 SOFTWARE AND USE OF THE ELEMENT30 SERVICES. |
| 1. |
element30 Services. The element30 Services enable you to you to (i) transfer for backup and disaster recovery purposes data, information or content (“Data”) stored on your computer to the computer of one or more users of the element30 Services, each designated as your “Buddy”; or (ii) serve as a “Buddy” and permit one or more users of the element30 Services to transfer Data to your computer for backup and disaster recover purposes. |
| 2. |
Confidentiality. You will maintain all Confidential Information in strict confidence and will not disclose any Confidential Information to any third party. You will not use Confidential Information, except as necessary for the performance of this Agreement. “Confidential Information” means: (a) the element30 Services, including any Feedback that you provide to element30 pursuant to Section 5; and (b) any element30 business or technical information that is disclosed to you in connection with this Agreement, including, but not limited to, any information relating to element30’s plans, business opportunities or research and development. Confidential Information excludes any information that: (i) is or becomes generally known to the public other than as a result of your breach of this Agreement; (ii) is rightfully known to you at the time of disclosure without restrictions on use or disclosure; (iii) is independently developed by you, without access to or use of any Confidential Information; or (iv) is rightfully obtained by you from a third party, who has the right to disclose it and who discloses it without restrictions on use or disclosure. |
| 3. |
Grant of License. |
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| a) |
Subject to your compliance with the terms and conditions of this Agreement, element30 grants you a non-exclusive license to install and use the executable form of the element30 Software solely for testing and evaluation of the element30 Services and not for commercial use. element30 owns all right, title, and interest in and to the element30 Software and element30 Services, including all intellectual property rights therein. You will not acquire any rights or licenses in the element30 Software or element30 Services or in any element30 intellectual property rights on account of this Agreement or your performance of this Agreement. |
| b) |
Any commercial use of the element30 Software or element30 Services will result in termination of your right and ability to use the element30 Software and element30 Services. Prior to terminating your right and ability to use the element30 Software and element30 Services, element30 will make reasonable efforts to contact you. To the extent that a commercial version of the element30 Software is available at the time we contact you, we will give you the opportunity to purchase a commercial license for the element30 Software such that you can make commercial use of the element30 Software. element30 explicitly disclaims any liability for any business interruption or loss of Data, or access thereto, arising from element30's termination of your ability to use the element30 Software or element30 Services. |
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| 4. |
Restrictions. You acknowledge and agree that the element30 Software contains trade secrets of element30 and its licensors, and in order to protect such trade secrets and other interests that element30 and its licensors may have in the element30 Software, you agree not to reverse engineer, decompile or disassemble or otherwise attempt to learn the source code of the element30 Software or authorize any third party to do any of the foregoing, except to the extent such restrictions are not permitted by law. Except as expressly specified in this Agreement, you will not copy or modify the element30 Software or distribute, sell, sublicense or transfer the element30 Software to any third party. |
| 5. |
Feedback. We invite you to provide element30 with feedback, comments and suggestions for improvements to the element30 Software and element30 Services (collectively, “Feedback”). element30 may send to you from time to time surveys or other questionnaires for you to answer regarding your experience in using the element30 Software and element30 Services. You acknowledge and agree that all Feedback will be the sole and exclusive property of element30. You hereby assign to element30 and agree to assign to element30 all of your right, title, and interest in and to all Feedback, including all intellectual property rights therein. At element30’s request and expense, you will execute documents and take such further acts as element30 may reasonably request to assist element30 to acquire, perfect and maintain its intellectual property rights and other legal protections for the Feedback. |
| 6. |
Term and Termination. |
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| a) |
This Agreement will remain in effect until terminated. You may terminate this Agreement at any time by notifying element30 that you no longer desire to use the element30 software and element30 Services. element30 may terminate this Agreement without notice, at any time and for any reason. Except as provided in Section 3(b), this Agreement will automatically terminate without notice if you breach any term of this Agreement. |
| b) |
Upon termination of this Agreement, your right to use the element30 Software and element30 Services shall immediately terminate. Sections 2, 5, 6(b), 7 through 12 will survive any termination of this Agreement. |
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| 7. |
Disclaimer. The element30 Software and element30 Services are provided “AS IS”, without warranty of any kind. ELEMENT30 DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. element30 makes no representations or warranties regarding the suitability of the element30 Software or element30 Services for your intended requirements or purposes or regarding any Data that you transfer store, obtain or receive through use of the element30 Software and element30 Services. |
| 8. |
Acknowledgment of Limitations of Services. You acknowledge that: (a) the element30 Software and element30 Services have not been made generally available by element30; (b) the element30 Software and element30 Services may not operate properly, be in final form or fully functional; (c) the element30 Software and element30 Services may contain errors, design flaws or other problems; (d) it may not be possible to make the element30 Software or element30 Services fully functional; (e) use of the element30 Software and element30 Services may result in unexpected results, corruption or loss of Data, or other unpredictable damage or loss; and (f) element30 has no obligation to release a commercial version of the element30 Software or element30 Services; You assume all risk arising from use of the element30 Software and element30 Services, including, without limitation, the risk of damage to your computer system or the corruption or loss of Data. |
| 9. |
Indemnity. You agree to defend, indemnify, and hold element30 and its officers, directors, employees and agents harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable attorney’s fees, arising out of or in any way connected with your access to or use of the Services or your breach of the terms of this Agreement. |
| 10. |
Limitation of Liability. IN NO EVENT WILL ELEMENT30 BE LIABLE TO YOU FOR ANY DIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OF THE ELEMENT30 SOFTWARE OR ELEMENT30 SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT ELEMENT30 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. |
| 11. |
Export Law. You agree to comply fully with all U.S. export laws and regulations to ensure that neither the element30 Software nor any technical data related thereto nor any direct product thereof are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations. By downloading the element30 Software, you are agreeing to the foregoing and you are representing and warranting that you are not located in, under the control of, or a national or resident of any country or destination to which the U.S. has prohibited the export of goods and you are not an entity, organization or individual to which the U.S. has prohibited the export of goods. |
| 12. |
General. This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to or application of conflicts of law rules or principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply. You may not assign or transfer this Agreement or any rights granted hereunder, by operation of law or otherwise, without element30’s prior written consent, and any attempt by you to do so, without such consent, will be void and of no effect. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. All notices or approvals required or permitted under this Agreement will be in writing and delivered by confirmed facsimile transmission, by overnight delivery service, or by certified mail, and in each instance will be deemed given upon receipt. All notices or approvals will be sent to the email address you provide to us upon registering with element30, and if to element30 to the following address: 465 Melville Avenue, Palo Alto, California 94301. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by authorized representatives of both parties. If any provision of this Agreement is held to be unenforceable or invalid, that provision will be enforced to the maximum extent possible and the other provisions will remain in full force and effect. This Agreement is the complete and exclusive understanding and agreement between the parties regarding its subject matter, and supersedes all proposals, understandings or communications between the parties, oral or written, regarding its subject matter, unless you and element30 have executed a separate agreement. |
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