PLEASE READ CAREFULLY BEFORE INSTALLING ANY SOFTWARE FROM THIS WEBSITE.
This License (“License”) is a legal and binding agreement between You, being either an individual or a single entity (“You” or “Your”) and KLDiscovery Ontrack, LLC, with address at 9023 Columbine Road, Eden Prairie, MN 55347 USA (“Ontrack” or “we”) for the ONTRACK Verifile Viewer computer software, including updates, upgrades, agents or add-on components (“Software”) and its associated user guides, installation guides or supplemental guides (“Documentation”).
IMPORTANT NOTICE TO ALL USERS:
BY INSTALLING THE SOFTWARE, YOU AGREE TO THE TERMS OF THIS LICENSE WHICH WILL BIND YOU. THE TERMS OF THIS LICENSE INCLUDE, IN PARTICULAR, LIMITATIONS ON LIABILITY IN CLAUSE 18.
IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, WE WILL NOT LICENSE THE SOFTWARE AND DOCUMENTATION TO YOU AND YOU MUST DISCONTINUE THE INSTALLATION PROCESS NOW.
1. LICENSE GRANT. Subject to the terms and conditions of this License, including the payment of applicable license fees, Ontrack grants You a non-exclusive, non-transferable, revocable and non-sublicensable license to access and use the Software and Documentation and any license keys or other enforcement mechanisms (“Authentication Component”) for Your own internal business purposes.
The Software may only be used subject to the limitations set forth in this License and the Documentation.
2. LICENSE RESTRICTIONS. You shall not:
(a) remove, alter, cover or obfuscate any product identification, copyright notices, or other proprietary rights notice placed or embedded in the Software;
(b) sell, lease, rent, copy, or distribute this Software, Documentation and any associated Authentication Component to a third party except as expressly permitted herein;
(c) cause or permit reverse engineering, disassembly, decompilation or alteration of the Software except to the extent such restriction is expressly prohibited by applicable law;
(d) sub-License the Software to any third party, including Your own customers; or
(e) use the Software for competitive analysis purposes. You may make one copy of the Software and Documentation solely for backup or archival purposes. You may not copy any Authentication Component. The Software shall not itself be hosted or made available via a hosted environment or service bureau without additional license fees and terms and conditions.
3. AUDIT RIGHTS. You shall maintain accurate records containing all necessary data required for verification of compliance with the terms of this License. Ontrack, or its designee, may, during normal business hours and upon reasonable prior notice to You, audit and analyze Your records to verify compliance hereunder.
4. Acknowledgments. You acknowledge that no-charge versions of the Software may have more limited functionality than commercial versions available for a fee (if any). You acknowledge that Ontrack may discontinue the no-charge program at any time. Each Download of Software will identify the Software, license unit of measure, and any time period restriction, if applicable. Such limitations may be technically implemented through the use of authorization codes, license keys, or similar devices. You may choose to, but are not required to, provide suggestions, data, or other information to Ontrack regarding possible improvements in the operation, functionality or use of Software, whether in the course of receiving services, evaluating Software or otherwise, and any inventions, product improvements, modifications or developments made by Ontrack, at its sole discretion, will be the exclusive property of Ontrack.
5. TERM. Your use of the Software and this Agreement remain effective until terminated. Your use of the Software and this Agreement will immediately terminate upon notice if You exceed the scope of license granted or otherwise fail to comply with Sections of this EULA. For any material breach under this Agreement, Ontrack may terminate this Agreement immediately, without notice to You. If a Software license was provided for limited term use, such license will automatically terminate at the end of the authorized term. You may terminate this Agreement at any time by deleting the Software, and any sources thereof from Your equipment. On termination of this Agreement or any Software license under this Agreement, You shall ensure that all use of the affected Software ceases, and shall certify the destruction of all copies of the Software used by You to Ontrack’s reasonable satisfaction.
6. TERMINATION. Your failure to comply with any term or condition of this License, including failure to pay the appropriate license fees, shall result in termination or suspension of Your License to use the Software, Documentation and any associated Authentication Component(s). Upon termination, You shall discontinue all use of the Software, destroy the Software and Documentation, together with all copies thereof, and return any associated Authentication Component(s).
7. DATA PROTECTION. Our processing of Your personal data shall be governed by Ontrack’s Privacy Policy (available at https://www.ontrack.com/privacy/) and the terms set out below.
Ontrack collects personal data: (i) when You contact us via email, telephone or by any other means; and (ii) for the purposes of performing our obligations pursuant to this License. The purposes for which we process personal data include: (i) to provide the Software and Documentation to You; (ii) to obtain views on the performance of the Software, and (iii) with the appropriate legal permission, direct marketing.
We may disclose personal data to other entities of the KLDiscovery group (of which Ontrack forms part), a full list of which is provided in Ontrack’s Privacy Policy (together with the country where they are established which includes the United States), and to: (i) legal and regulatory authorities for the purposes of reporting any actual or suspected breach of applicable law or regulation; (ii) Ontrack’s accountants, auditors, lawyers and other outside professional advisors; and (iii) third party processors such as payment services providers, shipping/courier companies; technology suppliers, processors who provide compliance services. The purpose of disclosure to other entities is to fulfil Ontrack’s contractual obligations to You or for legitimate business purposes, in accordance with applicable law. Ontrack has implemented security measures described in Ontrack’s Privacy Policy and all entities that may receive the personal data are under a strict contractual obligation to implement security measures ensuring a high level of protection.
You shall at any time have the right to: (i) access and obtain information about the nature, processing or disclosure of You personal data; (ii) rectify Your personal data; (iii) request, on legitimate grounds, erasure or restriction of processing of Your personal data; (iv) object, on legitimate grounds, to the processing of Your personal data; (v) request to have Your personal data transferred to another controller; (vi) withdraw Your consent to processing of personal data; and (vii) lodge complaints with the applicable data protection authority.
8. THIRD PARTY USE. If You license the Software for Your internal business purposes but contract with a third party to perform services such as network management, monitoring, implementation, consulting or other outsourcing services for You (the “Consultant”), the Consultant may use the Software and Documentation licensed by You solely for Your benefit in the performance of such contract, provided, however, that You ensure that the Consultant uses the Software, Documentation and/or Authentication Component in accordance with the terms of this License. You shall be liable to Ontrack for the acts and omissions of the Consultant in connection with their use of the Software, Documentation and/or Authentication Component. Notwithstanding the foregoing, a Consultant shall not use the Software, including any Authentication Component if applicable, for its own internal business use.
9. ASSIGNMENT. You may not assign or transfer the rights or obligations under this License to another party without the express written consent of Ontrack. Any attempt to assign this License without Ontrack’s consent shall be null and void.
10. COPYRIGHT/OWNERSHIP. You acknowledge and agree that all intellectual property rights in the Software, its source code, the Documentation and any associated Authentication Component belong to, or are licensed to, Ontrack. The rights granted to You in the Software are licensed (not sold) and You have no rights in, or to, the Software or the Documentation other than the right to use them in accordance with the terms of this License. Ontrack shall at all times retain all rights, title, interest, including intellectual property rights, in the Software, Documentation and any associated Authentication Components.
11. TRADEMARKS. “Ontrack” and other “Ontrack” brand and product names referred to herein are trademarks or registered trademarks of KLDiscovery Ontrack, LLC., in the United States and/or other countries. All other brand and product names are trademarks of their respective owners. This License to use the Software does not provide You with any right to use these trademarks to any purpose whatsoever.
12. IP CLAIMS. In the event Your use of the product gives rise to a direct claim against You for intellectual property infringement, Ontrack shall: (i) defend at its own expense any claim brought against You by any third party alleging that Your use of the Software and/or the Documentation infringes any third party intellectual property rights (“IP Claim”); and pay costs and damages (subject to the limitation of liability clause in this EULA) awarded in final judgment or agreed in settlement of any IP Claim. The provisions of this clause shall not apply unless You: (i) promptly notify Ontrack upon becoming aware of any actual or threatened IP Claim and provide full written particulars; (ii) make no comment or admission and take no action that may adversely affect Ontrack’s ability to defend or settle the IP Claim; (iii) provide all assistance reasonably required by Ontrack; and (iv) give Ontrack sole authority to defend or settle the IP Claim as Ontrack considers appropriate.
(b) If the Software is or is likely to become subject to an IP Claim, Ontrack shall use reasonable endeavours to either: (i) obtain the right for You to continue to use the Software and/or Documentation as applicable; or (ii) replace or modify any relevant software, documentation or materials used in the Software (or the part of it subject to the IP Claim) or the Documentation so that it becomes non-infringing, or (iii) advise You of the discontinuation of the software being available with no risk or obligation towards You.
(c)In any event, Ontrack may elect by written notification to You that: (i) Your use of the Software shall immediately terminate; (ii) You shall promptly uninstall, delete and cease to use the Software.
(d) Ontrack shall have no liability or obligations under this clause 14 in respect of (and shall not be obliged to defend) any IP Claim which arises in whole or in part from: (i) any modification of the Software without Ontrack’s express written approval; (ii) installation or use of the Software or the Documentation otherwise than in accordance with this License or Ontrack’s instructions; (iii) installation or use of the Software in combination with any software, hardware or data that has not been supplied or expressly authorized by Ontrack; or (iv) any unlawful use made of the Software by Client.
The provisions of this clause 14 set out Your sole and exclusive remedy (howsoever arising, including in contract, tort, negligence or otherwise) for any IP Claim or any other actual or alleged infringement of any intellectual property rights.
13. INDEMNITY. You shall defend, indemnify and hold harmless Ontrack against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with: (i) Your unauthorized use of the Software and/or Documentation; or (ii) any violation of this License.
14. EXPORT RESTRICTIONS. You agree to comply fully with all laws and regulations of the United States and other countries relating to the prohibition of sales of products and services to designated states or jurisdictions, individuals or companies (“Export Laws”) to assure that the Software, Documentation nor any associated Authentication Component are not: (1) exported, directly or indirectly, in violation of Export Laws; or (2) used for any purpose prohibited by Export Laws, including, without limitation, nuclear, chemical, or biological weapons proliferation. None of the Software or underlying information or technology may be downloaded or otherwise exported or re-exported: (i) into (or to a national or resident of) any country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's List of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders. By installing or using the 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 such country or on any such list.
15. WARRANTIES. THIS SOFTWARE, DOCUMENTATION AND ANY ASSOCIATED AUTHENTICATION COMPONENT IS PROVIDED TO YOU ON AN “AS-IS” BASIS. YOU ASSUME ALL RISKS WHEN INSTALLING OR USING THE SOFTWARE. THERE ARE NO WARRANTIES EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE. ONTRACK DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ONTRACK DOES NOT WARRANT THAT THE SOFTWARE IS NON-INFRINGING, THAT IT WILL MEET YOUR REQUIREMENTS OR THAT ITS OPERATION WILL BE UNINTERRUPTED, ERROR-FREE OR VIRUS-FREE.
16. LIMITATION OF LIABILITY. ONTRACK SHALL NOT IN ANY CIRCUMSTANCES WHATEVER BE LIABLE TO YOU, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE, ARISING UNDER OR IN CONNECTION WITH THE LICENSE FOR:
(A) LOSS OF PROFITS, SALES, BUSINESS, OR REVENUE;
(B) BUSINESS INTERRUPTION;
(C) LOSS OF ANTICIPATED SAVINGS;
(D) LOSS OR CORRUPTION OF DATA OR INFORMATION;
(E) LOSS OF BUSINESS OPPORTUNITY, GOODWILL OR REPUTATION; OR
(F) ANY INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE.
OTHER THAN THE LOSSES SET OUT BELOW, OUR MAXIMUM AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS LICENSE WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL IN ALL CIRCUMSTANCES BE LIMITED TO: (i) IN CASES OF INTELLECTUAL PROPERTY INFRINGEMENT, A TOTAL OF $10,000; OR (ii) IN ANY OTHER CASE, A SUM EQUAL TO THE APPLICABLE LICENSE FEE YOU PAID.
NOTHING IN THIS LICENSE SHALL LIMIT OR EXCLUDE OUR LIABILITY FOR:
(A) DEATH OR PERSONAL INJURY RESULTING FROM OUR NEGLIGENCE;
(B) FRAUD OR FRAUDULENT MISREPRESENTATION;
(C) ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW.
THIS LICENSE SETS OUT THE FULL EXTENT OF OUR OBLIGATIONS AND LIABILITIES IN RESPECT OF THE SUPPLY OF THE SOFTWARE AND DOCUMENTATION.
17. MISCELLANEOUS. Subject to the statutory rights You may have, the License is governed by THE LAWS OF THE STATE OF MINNESOTA as applied to agreements between Minnesota residents entered into and to be performed entirely within Minnesota, and EACH PARTY HERETO SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF MINNESOTA. Each party, on behalf of itself and its affiliates, to the fullest extent permitted by law, knowingly, voluntarily, and intentionally waives its right to a trial by jury in any action or other legal proceeding arising out of or relating to this License. The foregoing waiver applies to any action or legal proceeding, whether in contract, tort or otherwise. Each party, on behalf of itself and its affiliates, also agrees not to include any employee, officer or director of the other party or its affiliates as a party in any such action or proceeding. This is the entire agreement between You and Ontrack, which supersedes any prior or subsequent agreement, including Your purchase order terms, whether written or oral, relating to this subject matter.
We may amend the terms of this License at any time and publish such changes on our website. Where we make any material amendments, we shall notify You in advance of the implementation of such change. Your continued use of the Software and Documentation after implementation of such changes shall amount to Your agreement to them.
The failure by us to enforce at any time any of the provisions in this License shall not be deemed a waiver of such provision, or any other provision, or our right thereafter to enforce any such provision in the future.
If any provision of this License is in violation of any applicable law, such provision shall to such extent be deemed null and void, and the remainder of the License shall remain in full force and effect.
18. GOVERNMENT USE. The Software and Authentication Components include “commercial computer software” and related documentation within the meaning of Federal Acquisition Regulation (“FAR”) 2.101, 12.212, and 27.405-3 and Defense Federal Acquisition Regulations Supplement (“DFARS”) 227.7202 and 252.2277014(a)(1). The Software and Authentication Components are proprietary to Ontrack and its third party licensors. You shall ensure that all users, including, but not limited to employees, personnel, representatives or agents of the U.S. Government, are permitted to use the Software and Authentication Components only as expressly authorized under this License. In accordance with FAR 12.212 and DFARS 227.7202, neither You nor any government agency or entity shall receive any ownership, license, or other rights in and to the Software and Authentication Components other than the commercial software license rights expressly set forth herein.
Contractor/manufacturer is KLDiscovery Ontrack, LLC., 9023 Columbine Road, Eden Prairie, MN 55347.
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