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EULA

 

END USER LICENSE AGREEMENT 

IMPORTANT: THIS END USER LICENSE AGREEMENT (“EULA”) IS A LEGAL  

AGREEMENT BETWEEN YOU AND ATHENA SECURITY, INC. (“ATHENA”). READ IT  CAREFULLY BEFORE USING THE SOFTWARE OR HARDWARE SERVICES. IT  PROVIDES A LICENSE TO USE THE SOFTWARE AND HARDWARE SERVICES YOU ARE  ACCESSING AND CONTAINS LIABILITY DISCLAIMERS AND RESTRICTIONS ON USE.  BY INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE OR HARDWARE  SERVICES, YOU ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF  THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, THEN DO  NOT INSTALL, COPY OR USE THE SOFTWARE OR HARDWARE SERVICES. 

RECITALS

A. ATHENA is a provider of enterprise-level entryway security systems comprised of  proprietary software (the “Software Services” defined further herein) and security equipment such as tablets, cameras, and metal detection (the “Hardware Services” defined further herein).

B. ATHENA sells its ATHENA security systems, which systems include the Software and  Hardware Services, to direct customers (“Direct Customers”);

C. ATHENA has also entered into certain Authorized Reseller Agreements (the “Reseller Agreements”) with entities and/or individuals who are permitted to resell ATHENA security systems (the “Resellers”) which systems include the Software and Hardware Services;

D. ATHENA retains the authority and right to distribute its Software and Hardware Services to its Direct Customers, the Resellers and to the customers of Resellers (the “End Users”);

E. All End Users and Direct Customers who install ATHENA Software are subject to this EULA unless such End User or Direct Customer has a separate written agreement  with Athena otherwise;

F. If you (an “End User”) purchased ATHENA products or systems from a Reseller, or you are  a Direct Customer of Athena, we hereby grant you a license to use ATHENA Software and Hardware Services on the following terms and conditions:

  1. DEFINITIONS. 

LICENSE AGREEMENT 

2.2 Unless otherwise agreed to in writing by  

1.1 “Intellectual Property Rights” means  patent rights (including patent applications and  disclosures), copyrights, trade secrets, know-how  and any other intellectual property rights recognized in any jurisdiction in the world. 

1.2 “Professional Services” means any  consulting, analysis, design, development,  integration, implementation, installation or other  professional services that ATHENA performs for  its customers. Professional Services excludes  Support Services. 

1.3 “Support Services” means any software  maintenance/upgrades, technical support,  training, go-live support, etc., required to ensure  success use of the Services. 

1.4 “Services” means, collectively, Software  Services, Hardware Services, Professional  Services and Support Services. 

1.5 “Software Services” means the ATHENA  software, whether in object code or source code  form and regardless of how delivered, and  standard published documentation, and Updates  thereto that ATHENA provides to End User under  this Agreement, if any. The “Software Services”  may include software products that are owned or  controlled by a party other than ATHENA  including, but not limited to, software owned by  Microsoft Corporation (“Microsoft”). 

  1. SCOPE OF AGREEMENT. 

2.1 Scope. This Agreement sets forth the  terms and conditions under which End User may  license Services from ATHENA. End User  acknowledges and agrees that ATHENA licenses  and does not sell the Software Services, Hardware  Services, Professional Services and Support  Services, and that use of terms such as “purchase”  and “sell” in this Agreement means the purchase  or sale of a license to use the Services only. 

2.2 Unless otherwise agreed to in writing by the parties, ATHENA will license the Services to End User only in accordance with the terms and  conditions set forth in this document, and, if applicable, the Reseller Agreement to which End User is a party. 

  1. ENGAGEMENT, SOFTWARE  LICENSE, AND PERFORMANCE OF  SERVICES. 

3.1. License. ATHENA grants End User a  non-exclusive, non-transferable, revocable  license to use the Services during the Term of this  Agreement. End User acknowledges that  ATHENA retains the title to the Software  Services and Hardware Services, and the object  code and source code comprising the Software  Services are confidential to ATHENA and  protected by copyright. End User shall protect the  confidentiality of the Software Services with the  same degree of care, which it uses to protect the  confidentiality of its own proprietary information  of like nature, but with no less than a reasonable  degree of care. The obligations of the End User  under this agreement to maintain the Software  Services in confidence shall survive the  termination or expiration of this Agreement. 

3.2. License Restrictions. Except as expressly  authorized in this Agreement, End User will not: (a) copy or modify the Software Services, in  whole or in part; (b) transfer, sublicense, lease,  lend or rent or otherwise distribute the Software  Services to any third party; or (c) make the  functionality of the Software Services available to  multiple users through any means, including but  not limited to uploading the Software Services to  a network or file-sharing service or any hosting,  application services provider, etc. End User  acknowledges and agrees that portions of the  Software Services, including but not limited to the  source code and the specific design and structure  of individual modules or programs, constitute or contain trade secrets of ATHENA and its  licensors. Accordingly, End User agrees not to  disassemble, decompile or reverse engineer the  Software Services or permit or authorize a third  party to do so, except to the extent such  restrictions are expressly permitted by law  notwithstanding this section. 

3.3. Limited Rights. End User’s rights in the  Software Services will be limited to those  expressly granted in this License Agreement.  ATHENA reserves all rights in and to the  Software Services not expressly granted to End  User under these License Agreement. 

3.4. U.S. Government End Users. The  Software Services and its documentation are  “commercial items” as that term is defined in  FAR 2.101, consisting of “commercial computer  software” and “commercial computer software  documentation,” respectively, as such terms are  used in FAR 12.212 and DFARS 227.7202. If the  Software Services and its documentation are  being acquired by or on behalf of the U.S.  Government, then, as provided in FAR 12.212  and DFARS 227.7202-1 through 227.7202-4, as  applicable, the U.S. Government’s rights in the  Software and its documentation will be only those  specified in these License Agreement. 

3.5. Ownership. End User expressly  acknowledges that, as between ATHENA and  End User, ATHENA owns all worldwide rights,  title and interests in and to the Software Services,  including all Intellectual Property Rights therein.  End User will not delete or in any manner alter the  copyright, trademark, and other proprietary rights  notices appearing on the Software Services as  delivered to End User. End User will reproduce  such notices on all copies it makes of the Software  Services. 

  1. TERM. 

4.1. Term. The ‘Term” of this Agreement shall  be as set forth in End User’s agreement with Reseller. 

4.2. Effect of Termination. Upon termination  of End User’s relationship with Reseller, End User’s license to use the Software and Hardware  Services will automatically terminate. Athena  reserves the right to suspend or terminate End  User’s use of the Software and Hardware Services  at any time based on Athena’s reasonable  judgment., with or without any reason. For  example, Athena may suspend or terminate End  User’s access to the Software and Hardware  Services if Athena determines in its sole  discretion that such action is desirable for any  reason, or advisable to comply with applicable  legal requirements, or to protect the rights or  interests of Athena or any third party. If End User  fails to comply with any terms of this EULA, End  User’s license to use the Software and Hardware  Services may immediately terminate without  notice or further action by Athena. Upon  termination End User must delete the Software  from End User’s device(s). 

4.3. Survival. The rights and obligations of the  parties under sections 5, 6 and 7 will survive  termination of this agreement. 

  1. WARRANTY.

ATHENA warrants that the Services provided  will be free of defects and will operate in  accordance with its related documentation,  including without limitation, manufacturers  specifications. 

To warranty Security Hardware, End User should  ship all Security hardware returns in appropriate  packaging at End User’s expense to the Reseller  as provided in the Reseller Agreement: 

To request warranty service, End User must first  contact the Reseller from which it purchased the  system or product. 

  1. INDEMNIFICATION. 

Infringement Indemnity. ATHENA will defend  or settle any action brought against End User to  the extent that it is based upon a claim that the  Services, as provided by ATHENA and used  within the scope of the Agreement, infringes any U.S. Patent or any copyright or misappropriates  any trade secret , and will pay any costs, damages, and reasonable attorney’s fees attributable to such  claim that are awarded against End User, provided  that End User: (a) promptly notifies ATHENA in  writing of this claim; (b) grants ATHENA sole  control of the defense and settlement of the claim;  and (c) provides ATHENA, at ATHENA’s  expense, with such information, cooperation and  assistance as may be reasonably required and  promptly for the defense or settlement of the claim. 

  1. LIMITATION OF LIABILITY 

7.1 Exclusion of Damages. In no event will  ATHENA be liable for any special, incidental,  exemplary, punitive or consequential  damages (including loss of use, data, business  or profits) or for the cost of procuring  substitute Services arising out of or in  connection with this Agreement or the use,  operation or performance of the Services,  whether such liability arises from any claim  based upon contract, warranty, tort (including  negligence), strict liability or otherwise, and  whether or not ATHENA has been advised of  the possibility of such loss or damage. 

7.2 Total Liability. ATHENA’s total liability to  End User, from all causes of action and all  theories of liability, will be limited to the  amounts received by ATHENA from End  User for the specific Services giving rise to a  claim for liability hereunder. 

7.3 Acknowledgment of Risk Allocation. The  Parties have agreed that the foregoing  limitations of liability will survive and apply  even if any limited remedy specified in this  Agreement is found to have failed in its  essential purpose. The Parties acknowledge  and agree that the foregoing limitations of  liability are a condition of and material  consideration for entering into this agreement. 

7.4 No Liability for “Incidents.” Incidents are  defined herein as events where a person  passes through the Athena threat detection  Services and subsequently harms other people  and/or themselves on the End User’s premise  and/or premise under the supervision or  control of End User. ATHENA under no circumstance will be liable for any harm  and/or damaged caused by an Incident. It is  understood by the End User that Athena’s  Services are meant to assist in reducing the  threat of Incidents but cannot eliminate  Incidents altogether. 

7.5 No Liability for Hardware. End User agrees  and specifically acknowledges herein that  under no circumstance will ATHENA be  liable to End User for any damage or harm  resulting from or related to End User’s use of  Hardware (“End User Hardware Liability”).  End User agrees that for any End User  Hardware Liability End User will look solely  to the hardware manufacturer of the Hardware  for compensation. 

  1. MISCELLANEOUS. 

8.1.Assignment. End User may not assign or  transfer this Agreement, in whole or in part,  without ATHENA’s express prior consent. Any attempt to assign or transfer this  Agreement, without such consent, will be  void. ATHENA may assign this Agreement  to a third party that acquires or succeeds to  all or substantially all of ATHENA’s assets  or related business (whether by merger, sale,  operation of law or otherwise); provided that  such third party agrees in writing to be bound  by the terms and conditions of this  Agreement. Subject to the foregoing, this  Agreement will bind and benefit the parties  and their respective successors and permitted assigns. 

8.2. Governing Law. This Agreement will be  governed by and construed in accordance  with the laws of the State of Delaware  excluding that body of law known as  conflict of laws. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. The parties hereby  irrevocably agree to submit to the non exclusive jurisdictions of the federal or state  courts located in Collin County, Texas.

8.3. Export Control. End User agrees to comply fully with all relevant export laws and  regulations of the United States (“Export Laws”) to ensure that neither the Software, nor any direct  product thereof is: (i) exported or re-exported  directly or indirectly in violation of Export Laws; or (ii) used for any purposes prohibited by the  Export Laws, including but not limited to nuclear, chemical, or biological weapons  proliferation. 

8.4. Severability. If for any reason a court of  competent jurisdiction finds any provision of this  Agreement invalid or unenforceable, that  provision of the Agreement will be enforced to  the maximum extent permissible and the other  provisions of this Agreement will remain in full  force and effect. 

8.5. Force Majeure. Neither Party will be responsible or liable to the other Party for any failure or delay  in its performance under this Agreement (except  for any payment obligations) due to causes  beyond its reasonable control, including, but not  limited to, labor dispute, strike, lockout, shortage of or inability to obtain energy, raw materials or  supplies, war, terrorism, riot or act of God (each  a “Force Majeure”). In the event of a Force  Majeure, the Party that is unable to perform or whose performance is delayed will promptly notify the other Party of the Force Majeure and  will use its commercially reasonable efforts to resume performance. 

8.6. Entire Agreement. This Agreement, including all  exhibits (and any attachments or schedules  thereto) constitutes the complete and exclusive  understanding and agreement between the Parties  regarding its subject matter and supersedes all  prior or contemporaneous agreements or  understandings, written or oral, relating to its  subject matter. This Agreement may be modified  or any rights under it waived only by a written  document executed by both parties. 

8.7. No Third-Party Beneficiaries. Nothing in this  Agreement shall confer upon any person  other than the Parties and their respective  successors or assigns, any rights, remedies, obligations, or liabilities whatsoever. 

8.8. Data Privacy. In the event that sharing of  End User personally identifiable data (“PI”) is necessary, Parties agree that any applicable  data privacy Laws and any other obligations  of End User and the ATHENA to maintain the confidentiality of any personal  information in accordance with applicable  law shall govern the disclosure of personal  information among the Parties under this  Agreement. Both Parties shall ensure that  they each have in place appropriate technical  and organizational security measures to  protect the personal data disclosed as required by the nature of the Services  governed by this Agreement. 

8.9. Data Breach. If ATHENA has collected or  used End User PI, ATHENA shall  immediately notify End User within twenty  four (24) hours in the event of a known or suspected breach of security of a ATHENA  system or database that contains End User PI  or any other Confidential Information, or the detection of suspicious activity, or suspected  or actual loss or theft of any such data, or  access by any unauthorized third party to  such data, and will furnish all available  information and assistance to End User  regarding such breach sufficient for End  User to evaluate the likely consequences and  any legal or regulatory requirements arising out of the event. Notification must include  full details of any security incident or breach  relevant to End User data processing, and  ATHENA shall use its commercially  reasonable efforts to immediately terminate  any security breaches or suspicious activity,  and must do all such acts and things  reasonably necessary to remedy or mitigate  the effects of the security incident or data  breach, and will continuously update End User on developments relating to such security  incidents or data breaches. ATHENA shall not  allow any security breach or suspicious activity  to persist for any amount of time or for any  reason except as required by law, or as deemed  reasonably necessary by ATHENA to determine  the identity of the perpetrator and to stop such  breach or suspicious activity from continuing. 

8.10 Technical Advice. Unless otherwise  specifically agreed in writing, neither Athena nor  any representative of Athena shall be responsible  for application or supervision of application of  the goods. Any supervision or technical advice or  assistance other than pursuant to such written  agreement does not create any liability on behalf  of Athena for any supervision, advice or  assistance given or results obtained.