Identity Finder, LLC End User License Agreement

Identity Finder
Copyright © 2001-2008 Identity Finder, LLC

NOTICE TO ALL USERS: CAREFULLY READ THE FOLLOWING LEGAL AGREEMENT ("AGREEMENT"), FOR THE LICENSE OF VELOSECURE CAM SOFTWARE ("SOFTWARE") PRODUCED BY IDENTITY FINDER, LLC. BY CLICKING THE ACCEPT BUTTON OR INSTALLING THE SOFTWARE, YOU (EITHER AN INDIVIDUAL OR A SINGLE ENTITY) CONSENT TO BE BOUND BY AND BECOME A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT DOWNLOAD OR IF ALREADY HAVE DONE SO, DELETE THE APPLICATION AND REMOVE ALL OF ITS BINARY, DATA, AND OUTPUT FILES FROM YOUR COMPUTER.

1. License Grant. Subject to the payment of the applicable license fees, and subject to the terms and conditions of this Agreement, VELOSECURE ("Velosecure") hereby grants to you a non-exclusive, non-transferable right to use one copy for each seat licensed of the specified version of the Software and the accompanying documentation (the "Documentation"). You may install one copy for each seat licensed of the Software on one computer, workstation, server or other electronic device for which the Software was designed (each, a "Client Device"). You are not permitted to install the Software on any additional computers without first receiving written permission from Velosecure. If the Software is licensed as a suite or bundle with more than one specified Software product, this license applies to all such specified Software products, subject to any restrictions or usage terms specified on the applicable price list or product packaging that apply to any of such Software products individually.

a. Use. The Software is licensed as a single product on the Client Device for which it was purchased; it may not be used on any other Client Device or by more than one user at a time. The Software is "in use" on a Client Device when it is loaded into the temporary memory (i.e., random-access memory or RAM) or installed into the permanent memory (e.g., hard disk, CD-ROM, or other storage device) of that Client Device.

b. Server Use. You may use the Software on a Client Device or on or as a server ("Server") within a multi-user or networked environment ("Server Use") only if such use is permitted in the applicable price list or product packaging for the Software. A separate license is required for each Client Device or "seat" that may connect to the Server at any time, regardless of whether such licensed Client Devices or seats are concurrently connected to or actually accessing or using the Software. Use of software or hardware that reduces the number of Client Devices or seats directly accessing or utilizing the Software (e.g., "multiplexing" or "pooling" software or hardware) does not reduce the number of licenses required (i.e., the required number of licenses would equal the number of distinct inputs to the multiplexing or pooling software or hardware "front end"). If the number of Client Devices or seats that can connect to the Software can exceed the number of licenses you have obtained, then you must have a mechanism in place to ensure that your use of the Software does not exceed the use limits specified for the license you have obtained.

c. Volume Use. If the Software is licensed with volume license terms specified in the applicable product invoicing or packaging for the Software, you may make, use and install as many additional copies of the Software on the number of Client Devices as the volume license terms specify. You must have a mechanism in place to ensure that the number of Client Devices on which the Software has been installed does not exceed the number of licenses you have obtained.

d. Execution. The Software license allows for its execution on Client Device. VELOSECURE takes no responsibility for the authorization of what constitutes a legal Client Device and it is the onus of the licensee to obtain proper authorization from the Client Device's owner. e. Responsibility. You will take care to protect your license and activation codes so that they are not disclosed to a third party in any form.

2. Term. This Agreement is effective for the time period specified in your contract or if not specified, thirty (30) days, and until earlier terminated as set forth herein. This Agreement will terminate automatically if you fail to comply with any of the limitations or other requirements described herein. Upon any termination or expiration of this Agreement, you must destroy all copies of the Software and the Documentation.

3. Updates. During the term of your license as specified in your contract, you may download revisions, upgrades, or updates to the Software when and as VELOSECURE publishes them via its electronic bulletin board system, website or through other online services upon first transmitting the payment for these items.

4. Ownership Rights. The Software is protected by United States copyright laws and international treaty provisions. VELOSECURE and its suppliers own and retain all right, title and interest in and to the Software, including all copyrights, patents, trade secret rights, trademarks and other intellectual property rights therein. Your possession, installation, or use of the Software does not transfer to you any title to the intellectual property in the Software, and you will not acquire any rights to the Software except for the use of the software as expressly set forth in this Agreement. All copies of the Software and Documentation made hereunder must contain the same proprietary notices that appear on and in the Software and Documentation.

5. Restrictions. You may not rent, lease, loan or resell the Software. You may not permit third parties to benefit from the use or functionality of the Software via a timesharing, service bureau or other arrangement You may not transfer any of the rights granted to you under this Agreement. You may not reverse engineer, decompile, or disassemble the Software. You may not modify, or create derivative works based upon, the Software in whole or in part. You may not copy the Software or Documentation. You may not remove any proprietary notices or labels on the Software. All rights not expressly set forth hereunder are reserved by Velosecure. Velosecure reserves the right to periodically conduct audits without notice to verify compliance with the terms of this Agreement.

6. Warranty and Disclaimer.

a. Limited Warranty. VELOSECURE warrants that for one year from the date of original purchase the media (e.g., diskettes) on which the Software is contained will be reasonably free from defects in materials and workmanship.

b. Customer Remedies. VELOSECURE's and its suppliers' entire liability and your exclusive remedy for any breach of the foregoing warranty shall be, at VELOSECURE's option, either (i) return of the purchase price paid for the license, if any, or (ii) replacement of the defective media in which the Software is contained. You must return the defective media to VELOSECURE at your expense with a copy of your receipt. This limited warranty is void if the defect has resulted from accident, abuse, or misapplication. Any replacement media will be warranted for the remainder of the original warranty period. Outside the United States, this remedy is not available to the extent VELOSECURE is subject to restrictions under United States export control laws and regulations.

c. Warranty Disclaimer. Except for the limited warranty set forth herein, THE SOFTWARE IS PROVIDED "AS IS." TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, VELOSECURE DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT WITH RESPECT TO THE SOFTWARE AND THE ACCOMPANYING DOCUMENTATION. YOU ASSUME RESPONSIBILITY FOR SELECTING THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE SOFTWARE. WITHOUT LIMITING THE FOREGOING PROVISIONS, VELOSECURE MAKES NO WARRANTY THAT THE SOFTWARE WILL BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS. SOME STATES AND JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

7. Limitation of Liability. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, SHALL VELOSECURE OR ITS SUPPLIERS BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES. IN NO EVENT WILL VELOSECURE BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE LIST PRICE VELOSECURE CHARGES FOR A LICENSE TO THE SOFTWARE, EVEN IF VELOSECURE SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT THAT APPLICABLE LAW PROHIBITS SUCH LIMITATION. FURTHERMORE, SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.

8. United States Government. The Software and accompanying Documentation are deemed to be "commercial computer software" and "commercial computer software documentation," respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the Software and accompanying Documentation by the United States Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.

9. Export Controls. Neither the Software nor the Documentation and underlying information or technology may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria or any other country to which the United States has embargoed goods; (ii) to anyone on the United States Treasury Department's list of Specially Designated Nations or the United States Commerce Department's Table of Denial Orders or (iii) to any country or organization prohibited by any agency of the government of the United States. By downloading or using the Software you are agreeing to the foregoing and you are certifying that you are not located in, under the control of, or a national or resident of any such country or on any such list. IN ADDITION, YOU SHOULD BE AWARE OF THE FOLLOWING: EXPORT OF THE SOFTWARE MAY BE SUBJECT TO COMPLIANCE WITH THE RULES AND REGULATIONS PROMULGATED FROM TIME TO TIME BY THE BUREAU OF EXPORT ADMINISTRATION, UNITED STATES DEPARTMENT OF COMMERCE, WHICH RESTRICT THE EXPORT AND RE-EXPORT OF CERTAIN PRODUCTS AND TECHNICAL DATA. IF THE EXPORT OF THE SOFTWARE IS CONTROLLED UNDER SUCH RULES AND REGULATIONS, THEN THE SOFTWARE SHALL NOT BE EXPORTED OR RE-EXPORTED, DIRECTLY OR INDIRECTLY, (A) WITHOUT ALL EXPORT OR RE-EXPORT LICENSES AND UNITED STATES OR OTHER GOVERNMENTAL APPROVALS REQUIRED BY ANY APPLICABLE LAWS, OR (B) IN VIOLATION OF ANY APPLICABLE PROHIBITION AGAINST THE EXPORT OR RE-EXPORT OF ANY PART OF THE SOFTWARE. SOME COUNTRIES HAVE RESTRICTIONS ON THE USE OF ENCRYPTION WITHIN THEIR BORDERS, OR THE IMPORT OR EXPORT OF ENCRYPTION EVEN IF FOR ONLY TEMPORARY PERSONAL OR BUSINESS USE. YOU ACKNOWLEDGE THAT THE IMPLEMENTATION AND ENFORCEMENT OF THESE LAWS IS NOT ALWAYS CONSISTENT AS TO SPECIFIC COUNTRIES. ALTHOUGH THE FOLLOWING COUNTRIES ARE NOT AN EXHAUSTIVE LIST THERE MAY EXIST RESTRICTIONS ON THE EXPORTATION TO, OR IMPORTATION OF, ENCRYPTION BY: BELGIUM, CHINA (INCLUDING HONG KONG), FRANCE, INDIA, INDONESIA, ISRAEL, RUSSIA, SAUDI ARABIA, SINGAPORE, AND SOUTH KOREA. YOU ACKNOWLEDGE IT IS YOUR ULTIMATE RESPONSIBILITY TO COMPLY WITH ANY AND ALL GOVERNMENT EXPORT AND OTHER APPLICABLE LAWS AND THAT VELOSECURE HAS NO FURTHER RESPONSIBILITY AFTER THE INITIAL SALE TO YOU WITHIN THE ORIGINAL COUNTRY OF SALE.

10. High-Risk Activities. The Software is not fault- tolerant and is not designed or intended for use in hazardous environments requiring fail-safe performance, including without limitation, in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, direct life-support machines, machinery which might cause harm to a person or any other application in which the failure of the Software could lead directly to death, personal injury, or severe physical or property damage (collectively, "High-Risk Activities"). VELOSECURE expressly disclaims any express or implied warranty of fitness for High-Risk Activities.

11. Miscellaneous. This Agreement is governed by the laws of the United States and the State of New York, without reference to conflict of laws principles. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. This Agreement sets forth all rights for the user of the Software and is the entire agreement between the parties. This Agreement supersedes any other communications with respect to the Software and Documentation. This Agreement may not be modified except by a written addendum issued by a duly authorized representative of VELOSECURE. No provision hereof shall be deemed waived unless such waiver shall be in writing and signed by VELOSECURE or a duly authorized representative of VELOSECURE. If any provision of this Agreement is held invalid, the remainder of this Agreement shall continue in full force and effect. The parties confirm that it is their wish that this Agreement has been written in the English language only. VELOSECURE may identify you to the public as a customer of VELOSECURE and describe in a customer case study the services and solutions delivered by VELOSECURE to you. VELOSECURE may also issue one or more press releases containing an announcement of the execution and delivery of this Agreement and/or the implementation of the Software by you. Nothing contained in this Section 11 shall be construed as an obligation by you to disclose any of your proprietary or confidential information to any third party.

12. VELOSECURE CUSTOMER CONTACT. If you have any questions concerning these terms and conditions, or if you would like to contact VELOSECURE for any other reason, please use our contact page on our website. Statements made to you in the course of this sale are subject to the Year 2000 Information and Readiness Disclosure Act (Public Law 105-271). In the case of a dispute, this Act may reduce your legal rights regarding the use of any statements regarding Year 2000 readiness, unless otherwise specified in your contract or tariff.

13. This Agreement and all other agreements shall be exclusively construed and interpreted in accordance with the laws of the State of New York, excluding conflict of laws provisions. No rules, regulations, laws or statutes of any kind or nature of any other city, county, state or other jurisdiction shall be given any force or effect. You agree to submit to the personal and the exclusive jurisdiction of the courts (both federal and state) located in New York County in the State of New York for any action or proceeding brought by you or any other person or entity. This includes all actions and proceedings of every kind and nature, even if they did not arise out of this Agreement. Service of a Summons and Complaint upon you by U.S. Mail, Federal Express at the address stated above or by e-mail shall be the equivalent as if you were personally served with said documents in the State of New York.

You agree that if you bring any action or proceeding against you or any other person or entity or anyone connected with you or any other person or entity you shall do so only in the United States District Court for the Southern District of New York, unless said court does not have subject matter jurisdiction, in which case you shall bring any such action or proceeding only in the Supreme Court of the State of New York, County of New York. The provisions of this paragraph shall apply to all matters and controversies of every type and nature, including, but not limited to, anything that occurred or pertains to anything prior to the execution of the Agreement or any other agreement, during the term of the agreement, after the term of the agreement and for all matters whether or not related to the agreement, the Agreement or any other agreements. If Velosecure initiates litigation or incur any legal fees as a result of any action that you take or fail to take or if you breach any term, condition or covenant of this Agreement or any other agreement you shall be responsible for all of Velosecure's costs, expenses and legal fees of every kind and nature. You agree not to initiate, agree, be part of or in any way participate in any class actions against Velosecure. If you are made a part of a class action you agree to immediately opt out and/or withdraw from being part of the class action. If you do not take corrective action, you agree that you will pay all of your or any other person or entity's costs, expenses and attorneys fees to do so. You agree not to initiate, agree, be part of or in any way participate in any with any other person, business or entity against Velosecure as a plaintiff or in any other capacity in any lawsuit, complaint to any agency or in any other proceeding. If you violate the terms of the previous sentence you agree to immediately take corrective action to come into compliance with those terms. If you do not take immediately corrective action, you agree that you will pay all of you or any other person or entity's costs, expenses and attorneys fees to do so. There may be state laws which conflict with these provisions, in which instance such state law shall prevail.

YOU HEREBY AGREE TO WAIVE ALL RIGHTS OF EVERY KIND AND NATURE FOR TRIAL BY JURY FOR ALL CLAIMS, COUNTERCLAIMS, CROSS-CLAIMS AND FOR ALL OTHER ACTIONS, CASES AND PROCEEDINGS. IT IS AGREED AND UNDERSTOOD THAT UNDER NO CIRCUMSTANCES WILL ANY CASE BE TRIED BEFORE A JURY FOR ANY REASON WHATSOEVER.

Notwithstanding anything to the contrary herein, all provisions hereof are hereby limited to the extent mandated by any applicable law, regulation or decision. If any one or more paragraphs, clauses or other portions hereof should ever be determined to be illegal, invalid or otherwise unenforceable by a court of competent jurisdiction, or to be illegal, invalid or invalidated or unenforceable by reason of any existing or later enacted law, regulation or statute, then to the extent it is within the jurisdiction illegal, invalid or unenforceable, it shall be limited or construed so as to be valid and enforceable or severed and deleted herefrom. The remaining portions hereof shall survive, remain in full force and effect, continue to be binding and shall not be affected except insofar as may be necessary to make sense hereof, and shall be interpreted to give effect to the intention of the parties insofar as that is possible.

The rights and remedies of Velosecure provided in this Agreement shall be in addition to (and not in substitution for) any and all rights and remedies to which Velosecure shall be entitled at law or equity.

The covenants contained in this Agreement shall be construed as separate and independent of any other provision of this Agreement.