Device Management Agent EULA
Last Updated: December 12, 2017
Software End User License Agreement
This Software End User License Agreement ("Agreement") is an agreement between BitTitan, Inc. ("BitTitan," "we," "us" or “our”) and you and the entity that you represent (collectively “you”), for your use of the Device Management Agent software (the "Software").
YOU ARE RECEIVING THIS AGREEMENT BECAUSE YOU HAVE ENGAGED A MANAGED SERVICE PROVIDER (“MSP”) TO PERFORM MANAGED SERVICES ON YOUR BEHALF, AND THE MSP IS AUTHORIZED BY BITTITAN TO USE BITTITAN PRODUCTS AND SERVICES TO PROVIDE THE MANAGED SERVICES TO YOU. THE SOFTWARE ENABLES MSP TO PROVIDE THE MANAGED SERVICES FOR WHICH YOU HAVE ENGAGED THE MSP.
PLEASE READ THIS AGREEMENT CAREFULLY. IT CONTAINS IMPORTANT TERMS THAT AFFECT YOU AND YOUR USE OF THE SOFTWARE.
BY INSTALLING OR USING THE SOFTWARE, OR BY AN MSP INSTALLING AND USING THE SOFTWARE ON YOUR BEHALF, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT INSTALL OR USE THE SOFTWARE AND DO NOT PERMIT AN MSP TO INSTALL OR USE THE SOFTWARE. IF YOU ARE INSTALLING OR USING, OR ALLOWING AN MSP TO INSTALL OR USE THE SOFTWARE ON BEHALF OF ANY ENTITY OR OTHERWISE IN PERFORMANCE OF SERVICES FOR ANY ENTITY, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY'S BEHALF, THAT ACCEPTANCE OF THIS AGREEMENT AND USE OF THIS SOFTWARE WILL NOT VIOLATE ANY AGREEMENT YOU HAVE WITH SUCH ENTITY, AND THAT SUCH ENTITY AGREES TO INDEMNIFY BITTITAN FOR BREACHES OF THIS AGREEMENT.
1. Software License
Subject to the terms and conditions of this Agreement, we grant you, during the term of this Agreement, a non-exclusive, non-sublicensable, non-transferable license to (a) install the Software in object code form only on each of your employees and contractors’ assigned work machines and (b) access and use, and permit an MSP to access and use, the Software solely to facilitate the MSP providing managed services to you using BitTitan products and services to perform such managed services. Any Software that updates, supplements or replaces the original Software is governed by this Agreement unless separate license terms accompany such update, supplement or replacement, in which case such separate terms will govern in the event of a conflict with this Agreement or as otherwise provided in such separate terms.
2. License Limitations
Section 1 states the entirety of your rights with respect to the Software, and we reserve all rights not expressly granted to you in this Agreement. Without limiting the foregoing, you will not reverse engineer or decompile the Software or make any non-authorized use of the Software.
The Software is licensed, not sold, to you. We or our licensors own all right, title and interest in and to the Software, including all copyright, patent and other intellectual property or other proprietary rights in the Software. No title to or ownership of the Software or any associated intellectual property or proprietary rights are transferred to you by this Agreement.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND YOU HEREBY WAIVE, RELEASE, AND DISCLAIM, ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SOFTWARE, INCLUDING ANY WARRANTY THAT THE SOFTWARE WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY MATERIALS OR DATA PROVIDED BY YOU WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. BITTITAN AND ITS SUPPLIERS AND LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.
You will defend, indemnify and hold harmless BitTitan and its affiliates, independent contractors, service providers, suppliers, licensors, partners, resellers, distributors and consultants, and their respective directors, officers, employees and agents (collectively, the "BitTitan Parties") from and against any third party claims, suits or actions and any resulting damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys' fees) arising out of or related to your use unauthorized of the Software.
6. Limitation of Liability
IN NO EVENT SHALL ANY OF THE BITTITAN PARTIES BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF A BITTITAN PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE BITTITAN PARTIES, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SOFTWARE EXCEED $100.
BitTitan may terminate the term of this Agreement at any time, with or without cause, immediately upon notice to you or by disabling the Software. You may terminate the term of this Agreement ceasing your use the Software and uninstalling the Software. In the event of the termination of the term of this Agreement for any reason: (a) the license granted to you in this Agreement will terminate; (b) you must immediately cease all use of the Software and destroy or erase all copies of the Software in your possession or control; and (c) Sections 3 (Ownership), 4 (Disclaimers), 5 (Indemnification), 6 (Limitation of Liability), 7 (Termination), 8 (Governing Law; Jurisdiction) and 9 (General) will survive any such termination.
8. Governing Law; Jurisdiction
Unless expressly prohibited by local law, this Agreement is governed by the laws of the State of Washington, without regard to any conflict of law principles to the contrary. You hereby irrevocably consent to jurisdiction of the state and federal courts located in King County, Washington with respect to any proceeding regarding this Agreement or the Software. The 1980 UN Convention for the International Sale of Goods or any successor thereto does not apply to this Agreement. You will not prosecute any action, suit, proceeding or claim arising under or by reason of this Agreement or the Software except in such courts.
a. Legal Compliance; Export Restrictions. You represent and warrant you are not: (i) a national or resident of any country subject to a United States embargo or other similar United States sanctions or export restrictions, including Iran, Cuba, North Korea, the Region of Crimea, Sudan or Syria; (ii) on the United States Treasury Department’s list of Specifically Designated Nationals; (iii) on the United States Department of Commerce’s Denied Persons List or Entity List; or (iv) on any other United States export control list. The Software and related technology are subject to applicable United States export laws and regulations. You must comply with all applicable laws and regulations, including without limitation all applicable United States and international export laws and regulations, with respect to the Software and related technology. Without limitation, you may not export, re-export or otherwise transfer the Software or related technology, without a United States government license: (x) to any person or entity on any United States export control list; (y) to any country subject to a United States sanctions; or (z) for any prohibited end use.
b. U.S. Government License Rights. If acquired by any agency of the United States government, such agency acknowledges that (i) the Software constitutes "commercial computer software" or "commercial computer software documentation" for purposes of 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-3, as applicable, and (ii) such agency's rights are limited to those specifically granted to you pursuant to this Agreement.
c. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the remainder of this Agreement will remain in full force and effect.
d. Assignment. You may not assign or otherwise transfer this Agreement, or assign, sublicense or otherwise transfer any of your rights under this Agreement, without the prior written consent of BitTitan, and any attempted assignment without such consent will be void.
e. Attorney's Fees. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and reasonable attorney's fees.
f. Entire Agreement. This Agreement sets forth our entire agreement with respect to the Software and supersedes all prior and contemporaneous understandings and agreements with respect to the Software whether written or oral.