a. "Free Version" means the executable code version of the NewSky Security App Risk Assessment Service, including only those features listed for the Free Version listed at the following URL: http://apprisk.newskysecurity.com.
b. "Documentation" means the user documentation for the App Risk Assessment Service available on NewSky Security’s Web Site.
c. "Premium Version" means the executable code version of the App Risk Assessment Service, including both the Free Version features and all features of the “Premium” application as listed at the following URL: http://apprisk.newskysecurity.com.
d. "App Risk Assessment Service" means the Free Version and/or the Premium Version, as applicable to Licensee, online services including software, Upgrades, Updates, Documentation, and any other associated online services provided by NewSky Security or its suppliers. You may be required to register with NewSky Security for such services.
e. “NewSky Security Web Site” means the web site accessed at: http://apprisk.newskysecurity.com.
f. "Update" means a revision to the App Risk Assessment Service designated by a change in the version number to the right of the decimal place.
g. "Upgrade" means a revision to the App Risk Assessment Service designated by a change in the version number to the left of the decimal place.
2. License Grant
a. Free Version. Subject to the terms and conditions of this EULA, NewSky Security grants Licensee a free-of-charge, non-exclusive, and non-transferable license to use the Free Version solely for Licensee’s own use.
b. Premium Version. When Licensee has paid the applicable license fee, NewSky Security agrees to supply an alphanumeric key (“Key”) that will unlock the additional features of the Premium Version. Licensee may access and use such features only by use of the Key. Subject to the terms and conditions of this EULA and provided Licensee has paid the applicable license fee for an upgrade to the Premium Version, NewSky Security grants Licensee a non-exclusive and non-transferable license to use the Premium Version (as enabled by use of the Key) solely for Licensee’s own use.
3. Upgrades and Updates.
In its discretion, NewSky Security may make Updates or Upgrades available for the Free Version and/or the Premium Version. NewSky Security may, in its discretion, provide any Updates or Upgrades subject to its then current forms of end user license agreement, which may contain additional or different terms. This license does not entitle Licensee to Updates or Upgrades.
4. Restrictions on Use.
Licensee may not: (i) modify or create any derivative works of the App Risk Assessment Service; (ii) decompile, disassemble, or reverse engineer the App Risk Assessment Service, or (b) defeat, bypass, or otherwise circumvent any software protection mechanisms in the App Risk Assessment Service (except to the extent applicable laws specifically prohibit such restriction); (iii) attempt to access or use the additional features of the Premium Version if Licensee has not paid the applicable license fee or other than by using the Key; (iv) redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer the App Risk Assessment Service; (v) use the App Risk Assessment Service in a timesharing or service bureau arrangement; or (vi) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the App Risk Assessment Service. The App Risk Assessment Service is also subject to applicable legal terms and conditions stated on NewSky Security’s Web Site. NewSky Security may change or discontinue online services at any time.
There is no license fee for the Free Version. A fee is required for the Premium Version in connection with obtaining the Key.
6. Consent to Electronic Notice.
If for any purpose under this EULA, you provide NewSky Security with your email address, you agree to receive all notices and communications (“Notices”) from NewSky Security in electronic form at such email address. Delivery of any Notice from NewSky Security is effective when sent by NewSky Security, regardless of whether you actually receive or read the Notice. If you have provided your email address and do not wish to consent to electronic notice, you must uninstall and discontinue all use of the App Risk Assessment Service. You can update your email address by using the features on the NewSky Security Web Site for managing your user account.
The App Risk Assessment Service is protected by copyright and other intellectual property laws and by international treaties. No ownership rights are granted by this EULA. NewSky Security may use in any manner and without limitation all comments, suggestions, complaints and other feedback that Licensee provides relating to the App Risk Assessment Service. All rights not expressly granted to Licensee are reserved to NewSky Security and its suppliers.
Licensee agrees to indemnify, hold harmless, and at NewSky Security's request, to defend NewSky Security and its suppliers from any and all costs, damages and reasonable attorneys' fees resulting from any breach of this EULA or any allegation or claim that Licensee's use of the App Risk Assessment Service has violated any right of any third party or violated any law.
Should Licensee breach this EULA, Licensee's right to use the App Risk Assessment Service will terminate automatically without notice. The respective rights and obligations of NewSky Security and Licensee under the following provisions will survive termination: 4 (Restrictions on Use), 6 (Consent to Electronic Notice), 7 (Ownership), 8 (Indemnification), 9 (Termination), 10 (Disclaimer of Warranty), 11 (Limitation of Liability), 14 (Third Party Services or Products) and 15 (Miscellaneous). Upon termination, Licensee will erase all copies of the App Risk Assessment Service.
10. Disclaimer of Warranty.
THE APP RISK ASSESSMENT SERVICE IS PROVIDED "AS IS." NewSky Security AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE APP RISK ASSESSMENT SERVICE REMAINS WITH YOU. NewSky Security and its suppliers do not make any representations regarding the results of the use of the App Risk Assessment Service.
11. Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL NewSky Security OR ITS DIRECTORS, EMPLOYEES, SUPPLIERS, AGENTS OR SUPPLIERS (“NewSky Security PARTIES”) BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. THE NewSky Security PARTIES’ ENTIRE LIABILITY WILL NOT EXCEED IN THE AGGREGATE THE SUM OF THE FEES LICENSEE PAID FOR THIS LICENSE, AT NewSky Security’S DISCRETION. Some jurisdictions do not allow the exclusion or limitation of incidental, consequential or special damages, so this exclusion and limitation may not be applicable to you. The NewSky Security Parties will not be liable for any claims or damages arising out of: (i) content provided by Licensee or a third party that is accessed through or used with the App Risk Assessment Service and/or any material linked to or through such content; or (ii) the use of third party online services or products (even if made available on NewSky Security’s Web Site).
12. Export Controls.
Licensee agrees to comply with all export and import laws and restrictions and regulations of the United States or any foreign nation, and not to export, re-export or import the App Risk Assessment Service in violation of any such restrictions, laws or regulations.
13. Injunctive Relief.
Licensee acknowledges and agrees that, notwithstanding any other provisions of this EULA, any breach or threatened breach of this EULA by Licensee will cause NewSky Security irreparable damage for which recovery of money damages would be inadequate and that NewSky Security therefore may obtain timely injunctive relief to protect its rights under this EULA in addition to any and all other remedies available at law or in equity.
14. Third Party Services or Products
a. The App Risk Assessment Service may contain links to other web sites, resources and advertisers. NewSky Security is not responsible for such external sites.
b. Third parties may offer from time to time applications or services to access, to or interact with the App Risk Assessment Service. Licensee's use of such third party applications will be at Licensee's own risk and subject to the terms and conditions of those third parties. NewSky Security MAKES NO REPRESENTATION OR WARRANTIES REGARDING THIRD PARTY PRODUCTS EVEN IF DOWNLOADED FROM NewSky Security’S WEB SITE OR BY MEANS OF A LINK ON SUCH SITE.
a. Licensee represents and warrants that Licensee has all required legal capacity to enter into this EULA as a binding agreement.
b. This EULA is subject to the law of the state of Washington. This EULA will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Licensee agrees that the exclusive jurisdiction and venue for any claim or dispute relating to or arising out of this EULA or its subject matter will be in the federal and state courts located in King Country of the State of Washington, and Licensee consents to the personal jurisdiction in such courts.
c. If any provision in this EULA should be held illegal or unenforceable, the other provisions of this EULA will remain in full force and effect.
d. A waiver by either party of any term or condition of this EULA or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof.
e. Licensee may not assign or otherwise transfer by operation of law or otherwise this EULA or any rights or obligations herein. NewSky Security may assign this EULA to any entity at its sole discretion. This EULA will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns.
f. Neither party will be in default or be liable for any delay, failure in performance (excepting the obligation to pay) or interruption of service resulting directly or indirectly from any cause beyond its reasonable control.
g. This EULA constitutes the entire agreement between the parties concerning the subject matter hereof, which may only be modified by a written amendment signed by an authorized executive of NewSky Security.