SECURERF CORPORATION (“SECURERF”) LIME SOLUTION PRODUCT EVALUATION TERMS AND CONDITIONS
LAST UPDATE: FEBRUARY 1, 2017
Subject to the terms and conditions contained herein, the submission of the LIME SOLUTION Evaluation Order Form, which constitutes Customer’s acceptance of the terms herein, and associated SECURERF acknowledgement and acceptance (collectively, “Agreement”), and receipt of payment as set forth on the Evaluation Order Form, SECURERF shall deliver to Customer the product(s) ordered and documentation along with a license to use the code embedded in such products (together, the “LIME SOLUTION”), only for evaluation purposes. In the event of any conflict between the terms and conditions of this Agreement or Customer’s purchase order, if any, the terms and conditions of this Agreement shall govern. Once accepted, Customer may not cancel the order for the LIME SOLUTION without SECURERF’s prior written consent, which consent shall be in SECURERF’s sole discretion. SECURERF, in its sole discretion, reserves the right to (i) cancel an order or (ii) terminate the evaluation upon 180 days’ notice of termination.
1. LICENSE GRANT; LIME SOLUTION SCOPE OF USE AND LIMITATIONS
This agreement authorizes the Customer to use the LIME SOLUTION only for evaluation purposes as further set forth in this Agreement. SECURERF grants the Customer a non-assignable, nontransferable (without any right to sublicense), non-exclusive, limited, and revocable license to use the embedded software code (including the Algebraic Eraser™) in the LIME SOLUTION (together, “Firmware”) only with (i) “certificates” issued by SECURERF or SECURERF’s designee and (ii) SECURERF created encryption keys. Except for the rights and licenses expressly granted herein, no right or license is granted under this Agreement by implication or otherwise. Under no circumstances may Customer use the Firmware with encryption keys or “certificates” not created or issued by SECURERF unless expressly authorized in writing by SECURERF.
The Customer may not rent, lease, license, transfer, assign, sell, or otherwise provide access to the LIME SOLUTION or Firmware, in whole or in part, on a temporary or permanent basis to any third party without SECURERF’s prior written consent. The LIME SOLUTION is not intended for use in nuclear, aviation, mass transit, medical, lifesaving or life-sustaining applications, or other inherently dangerous applications or other equipment in which the failure of the SECURERF products could lead to personal injury, death, physical or environmental damage unless the LIME SOLUTION is specifically designed and designated for such intended use. SECURERF Customers using or selling and sublicensing SECURERF products for use in such applications do so at their own risk and agree to fully indemnify SECURERF for any damages resulting from such improper use or sale. SECURERF disclaims liability for any damages caused by such use.
The Customer is responsible for its products and applications using the LIME SOLUTION as well as any other SECURERF products, which may deviate from published specifications as a result of design defects, errors, or operation of products outside of published parameters or design specifications. The Customer should include design and operating safeguards to minimize these and other risks. SECURERF assumes no liability for application assistance, customer product design, or damage to any equipment resulting from the use of the LIME SOLUTION or any other SECURERF products.
2. PAYMENT; PRICE
All prices are as stated on the LIME SOLUTION Evaluation Order Form in U.S. Dollars. Payments shall be made in United States Dollars or, upon SECURERF agreement, the equivalent in the agreed upon currency at the then-prevailing currency exchange rate in effect on the day payment is made and received by SECURERF.
Customer agrees to pay any sales, personal property, use, VAT, excise tax, or any other taxes of any jurisdiction, domestic or foreign, that may be imposed, based upon the use of the LIME SOLUTION and provided services. Customer further agrees to make direct payments of such taxes and shall provide, upon request, certificates evidencing such payments, or reimburse SECURERF for payments it makes on behalf of Customer. Customer’s obligation to pay the aforementioned fees and taxes survives termination of this Agreement, even if not assessed at the time of the order and payment.
3. TITLE, RISK, AND ACCEPTANCE; DELIVERY
Title to tangible goods passes on SECURERF’s shipment. Title to the Firmware and any third party software subject to this Agreement, all property rights therein and all materials supplied to Customer under this Agreement, shall remain the sole property of SECURERF (its successors and assigns) and its suppliers, as applicable. Customer acknowledges and agrees that no right, title, or interest in or to the LIME SOLUTION is granted under this Agreement by implication or otherwise, except as expressly granted and specified in this Agreement. The LIME SOLUTION is deemed accepted by Customer; it may not be returned to SECURERF unless SECURERF issues a return material authorization number and instructions (“RMA”).
Customer bears the risk of loss or damage to the LIME SOLUTION once provided to the carrier. All delivery times (including delivery dates of any downloadable software) or shipment dates are approximate and may be changed by SECURERF. SECURERF will give Customer as much notice as is reasonably possible of a change. SECURERF will not be liable for any loss or damage Customer may suffer due to any changed or missed delivery times, or shipment dates.
Customer will (i) obtain all licenses required to import the LIME SOLUTION into the country or countries in which it intends to use or store or other countries considered to be an importing country under applicable law, (ii) clear the LIME SOLUTION through local customs promptly upon its arrival, and (iii) pay all customs duties and other charges assessed on such importation.
4. CONFIDENTIALITY AND TRADE SECRET PROTECTION
Customer must maintain the secrecy of and not disclose, without SECURERF’s express written consent, all trade secrets, proprietary information, or confidential information, which Customer receives from SECURERF. The Customer may not reproduce, transmit, modify, adapt, or translate nor reverse engineer, decompile, disassemble, adapt, modify, duplicate, or otherwise copy or reproduce, or create derivative works of or based on the LIME SOLUTION or Firmware, in whole or in part, without obtaining SECURERF’s or the applicable licensor’s prior express written permission. To the extent the European Union Software Directive or such other law or regulation is applicable, the Customer may modify, adapt, translate, reverse compile, reverse assemble, or reverse engineer any software code in any manner to the extent, and only to the extent, necessary to achieve interoperability of the Firmware with an independently created program, if the information needed to achieve such inter-operability has not previously been or made readily accessible to the Customer by SECURERF upon reasonable request. The Customer may not alter, remove, or cover any product identification, copyright, trademark, or proprietary notices or restricted notice(s) or legend(s) in or on the LIME SOLUTION and should include appropriate notices of SECURERF’s ownership. The inclusion of a copyright notice on or contained in Firmware shall not cause or be construed to cause it to be a published work.
THE LIME SOLUTION, INCLUDING ANY THIRD PARTY PRODUCTS CONTAINED THEREIN, AND ANY SERVICES PROVIDED IN CONNECTION THERETO, ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING FITNESS FOR A PARTICULAR PURPOSE OR USE, MERCHANTABILITY, PERFORMANCE, QUALITY OR NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT. WITHOUT LIMITING THE FOREGOING, SECURERF DOES NOT WARRANT THAT THE LIME SOLUTION AND ANY OTHER MATERIALS, PROVIDED IF ANY: SATISFY CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; SHALL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR SHALL BE ACCURATE OR RELIABLE. ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED.
SECURERF SHALL NOT BE LIABLE FOR ANY DAMAGES, INCLUDING, BUT NOT LIMITED TO, ANY SPECIAL, INDIRECT, INCIDENTAL, STATUTORY, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST REVENUES OR LOST PROFITS THAT MAY RESULT FROM THE USE OF THE LIME SOLUTION, WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
6. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES SHALL SECURERF BE LIABLE TO ANY PERSON (NATURAL OR OTHERWISE) FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING (WITHOUT LIMITATION) DAMAGES RESULTING FROM USE OR RELIANCE ON THE LIME SOLUTION, LOSS OF PROFITS, WHETHER IN AN ACTION IN CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION, EVEN IF ADVISED OF SUCH POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY. TO THE EXTENT PERMISSABLE, ANY IMPLIED WARRANTIES ARE LIMITED TO NINETY (90) DAYS. NOTWITHSTANDING ANY OF THE FOREGOING, SECURERF’S MAXIMUM LIABILITY SHALL NOT EXCEED ANY FEES ACTUALLY PAID TO SECURERF FOR THE LIME SOLUTION OR $100, WHICHEVER IS LESS. THE FOREGOING LIMITATIONS WILL APPLY, EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
7. GOVERNING LAW
This Agreement shall be construed and enforced in accordance with the laws of the State of Connecticut and the laws of the United States of America applicable to contracts made and to be fully performed therein, excluding Conflict of Law Principles and the United Nations Convention on Contracts for the International Sale of Goods. The parties irrevocably submit to the non-exclusive jurisdiction of the federal and state courts of the State of Connecticut, U.S.; provided, however, that (i) nothing herein shall preclude SECURERF from instituting proceedings against Customer or anyone acting by, through or under Customer in any place that may have jurisdiction for the purpose of protecting and enforcing SECURERF’s rights either hereunder or pursuant to any other agreements, documents, instruments or otherwise; and (ii) in no event may Customer institute proceedings against SECURERF or anyone acting by, through or under SECURERF in any place other in the State of Connecticut, United States of America.
If any of the terms are held by a court of competent jurisdiction to be invalid, void, or unenforceable, then that term held to be invalid, void, or unenforceable shall be enforced to the maximum extent permissible so as to effect the intent of the Agreement, and the reminder of the terms shall remain in full force and effect, and in no way shall be affected, impaired, or invalidated. Customer agrees that any preliminary or final order or judgment issued against Customer shall be enforceable in the domestic court of Customer and that Customer promptly shall provide any consents or stipulations necessary to facilitate enforcement of such orders or judgments in the domestic courts of the Customer against which enforcement is sought. Customer agrees to reimburse SECURERF for all costs and expenses, including, but not limited to, reasonable attorney’s fees that SECURERF incurs in connection with any violation of this Agreement or any proceeding instituted by SECURERF against the Customer for the purpose of enforcing any of the provisions of this Agreement.
8. EXPORT CONTROL
THE LIME SOLUTION IS SUBJECT TO UNITED STATES EXPORT CONTROL LAWS AND MAY ALSO BE SUBJECT TO THE LAWS OF THE COUNTRY WHERE YOU RESIDE. BY ORDERING THE LIME SOLUTION, CUSTOMER CERTIFIES NOT TO SELL, LICENSE, OR OTHERWISE EXPORT OR RE-EXPORT THE LIME SOLUTION IN VIOLATION OF SUCH EXPORT CONTROL LAWS. CUSTOMER FURTHER CERTIFIES THAT CUSTOMER IS NOT LOCATED IN A COUNTRY THAT IS SUBJECT TO A U.S. GOVERNMENT EMBARGO, OR THAT CUSTOMER HAS BEEN DESIGNATED BY THE U.S. GOVERNMENT AS A “TERRORIST SUPPORTING” ENTERPRISE OR LOCATED IN A COUNTRY DESIGNATED AS SUCH, AND CUSTOMER IS NOT LISTED ON ANY U.S. GOVERNMENT LIST OF PROHIBITED OR RESTRICTED PARTIES. CUSTOMER WILL COMPLY WITH ALL APPLICABLE EXPORT CONTROL LAWS AND REGULATIONS AND WILL INDEMNIFY SECURERF FOR ALL DAMAGES, INCLUDING REASONABLE ATTORNEY’S FEES, RESULTING FROM CUSTOMER’S FAILURE TO DO SO.
a. Entire Agreement; Modification and Waiver; Survival
The Agreement constitutes the entire agreement and understanding of the parties with respect to the subject matter and supersedes all prior written or verbal communications, representations, agreements, understandings, proposals, negotiations, purchase orders, and promises. Except as expressly set forth in the Agreement, no modification or waiver of the Agreement is effective unless it is in writing and signed by an authorized representative of the party charged with having given the waiver, or both parties in the event of a modification. No failure or delay by SECURERF to assert any rights or remedies will be construed as a waiver or a continuing waiver of its rights and remedies, nor will a failure or delay to assert a breach be deemed to waive that or any other breach.
SECURERF may assign, transfer, or subcontract its rights and obligations under the Agreement, provided such party assumes all obligations under this Agreement and provides notice to the Customer. Customer may not assign, transfer, or subcontract its rights or obligations, except to a successor in interest to all or substantially all of the assets of Customer by virtue of merger, consolidation, or sale to a third party, without SECURERF’s prior written consent. Any attempted assignment in violation of this Section shall be void and of no effect. However, a permitted assignment will not relieve Customer from its obligations.
c. Government Contract Language
If the LIME SOLUTION is to be used in the performance of a U.S. Government contract or subcontract for which mandatory flow-down clauses are applicable to SECURERF or the LIME SOLUTION, Customer must inform SECURERF and let it review the clause before SECURERF begins performance, so that it may decide whether to perform. If SECURERF is notified of the clauses after it starts performance and afterward rescinds its willingness to proceed, SECURERF will have no liability for its rescission. THE MATERIALS ARE CONSIDERED COMMERCIAL IN NATURE; USE, DUPLICATION, OR DISCLOSURE IS PROHIBITED – – APPLICABLE FARS/DFARS RESTRICTIONS APPLY TO GOVERNMENT USE. The manufacturer is SECURERF Corporation, 100 Beard Sawmill Road, Suite 350, Shelton, Connecticut 06484.
The LIME SOLUTION may contain a lithium ion battery. Customer is responsible to ensure the proper disposal; the improper disposal could cause serious and irreversible damage to the environment.
Any notices, requests and other communications hereunder shall be in writing and shall be (a) delivered personally to the party or to an officer of the party to whom the same is directed, or (b) sent by facsimile or registered or certified mail, return receipt requested, postage prepaid, addressed as specified in this Agreement. Any such notice shall be deemed to be delivered, given and received for all purposes as of: (i) the date so delivered, if delivered personally, (ii) upon receipt, if sent by facsimile, or (iii) on the date of receipt or refusal indicated on the return receipt, if sent by registered or certified mail, return receipt requested, postage and charges prepaid and properly addressed. Changes in address or designated representative of either party may be effectuated by written notice pursuant to, and in accordance with this section.
f. Third Party Software License Agreements
For any Third-Party software and/or for any software considered part of a Third-Party product, Customer agrees that it will be bound by the license agreement governing the use of such software, including agreements in click-wrap or shrink-wrap format. Unless otherwise stated in the applicable license agreement, the term of the software license begins upon delivery. Customer agrees that it is responsible for the proper deployment, tracking, use and record keeping of such licenses.
SECURERF owns or controls certain proprietary service marks, trademarks and registered trademarks (separately and together, “Marks”); and the LIME SOLUTION may be covered by one or more U.S. patents or patent pending applications. See, https://veridify.com/terms-of-use/ for the applicable Trademark Notice and Patent Notice.