BY CLICKING THE "DOWNLOAD" BUTTON, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS END USER LICENSE AGREEMENT ("AGREEMENT"). YOU MUST ACCEPT THIS AGREEMENT PRIOR TO DOWNLOADING, INSTALLING AND USING THE SOFTWARE. DO NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE IF YOU ARE UNWILLING OR UNABLE TO BE BOUND BY THIS AGREEMENT.
- License. Subject to the terms of this Agreement, Blue Jeans Network, Inc. (“BJN”) grants you a personal non-transferable, nonexclusive, limited license to download, install, execute and perform the software made available to you by BJN (“Software”) in machine readable object code form only in accordance with any documentation that accompanies it (“Documentation”) and only for use in connection with the BJN video conferencing services made available by BJN.
- Restrictions. You agree not to, directly or indirectly: (a) modify, translate, copy or create derivative works based on any element of the Software, (b) reverse assemble, reverse compile, reverse engineer, decompile or otherwise attempt to discover the object code, source code, non-public APIs or underlying ideas or algorithms of the Software in whole or in part, except as and only to the extent this restriction is prohibited by law, (c) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Software available to any third party or (d) remove or obscure any proprietary or other notice contained in the Software. BJN owns the Software. You acknowledge and agree that (i) the Software and the Documentation are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws, (ii) BJN retains all right, title and interest (including, without limitation, all patent, copyright, trade secret and other intellectual property rights) in and to the Software, the Documentation, any and all related and underlying technology and any derivative works or modifications of any of the foregoing, (iii) there are no implied licenses under this Agreement and any rights not expressly set forth in this Agreement are hereby expressly reserved by BJN and (iv) the Software is licensed, not sold and you acquire no ownership or other interest (other than the license rights expressly stated herein) in or to the Software or the Documentation.
- Confidentiality. You acknowledge that the Software and Documentation are the proprietary and confidential information of BJN. You also acknowledge that in the course of exercising your license rights under this Agreement, you may obtain other proprietary and confidential information relating to BJN (hereinafter referred to as “Confidential Information”). Such Confidential Information belongs solely to BJN and includes, but is not limited to, the features and mode of operation of the Software, trade secrets, know-how, inventions (whether or not patentable), techniques, processes, programs, ideas, algorithms, schematics, testing procedures, the design and architecture of the Software, computer code, design and functional specifications, requirements of the Software, problem reports, analysis and performance information, and other technical, business, marketing and financial information, plans and data. During the term of this Agreement, and for a period of five (5) years after its termination, you shall not use (except as expressly authorized by this Agreement) or disclose Confidential Information to any third party without the prior written consent of BJN. However, you may disclose Confidential Information in accordance with judicial or other governmental order, provided that you give BJN notice of such order in reasonable time for BJN to seek a protective order prior to disclosure. Nothing in this section 3 shall be read or interpreted to in any way limit or otherwise modify the restrictions and other terms set forth in section 2, above.
- Government Use. As defined in 48 C.F.R. §2.101, DFAR §252.227-7014(a)(1) and DFAR §252.227-7014(a)(5) or otherwise, all Software and Documentation provided in connection with this Agreement are “commercial items,” “commercial computer software” and/or “commercial computer software documentation.” Accordingly, if you are party of an agency, department, or any other entity of the U.S. Government or any contractor therefor, you shall receive only those rights with respect to the Software and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other U.S. Government licensees and their contractors. The foregoing does not apply if you are located outside North America and Latin America.
- Termination. You may terminate this Agreement and the license granted herein at any time by destroying or removing from all computers, networks, and storage media all copies of the Software. BJN may terminate this Agreement and the license granted herein immediately if you breach any provision of this Agreement. Upon receiving notice of termination from BJN, you agree to destroy or remove from all computers, networks, and storage media all copies of the Software. Sections 2-8 shall survive termination of this Agreement.
- No Warranty. YOU ACKNOWLEDGE THAT THE SOFTWARE IS PROVIDED BY BJN IN AN “AS IS” CONDITION AS TO PERFORMANCE, ACCURACY, OR COMPLETENESS. BJN DISCLAIMS ALL WARRANTIES OF DESIGN, MERCHANTABILITY, TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND ALL OTHER WARRANTIES, CONDITIONS OR TERMS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, ON THE SOFTWARE FURNISHED HEREUNDER.
- Limitation of Liability. IN NO EVENT SHALL BJN, ITS SUPPLIERS OR ITS LICENSORS BE LIABLE WITH RESPECT TO ANY CAUSE RELATED TO OR ARISING OUT OF THIS AGREEMENT, WHETHER IN AN ACTION BASED ON A CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR ANY OTHER LEGAL THEORY, HOWEVER ARISING, FOR DAMAGES BASED ON LOST REVENUES OR PROFITS, LOSS OF BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA OR BREACHES IN SYSTEM SECURITY OR ANY OTHER TYPE OF INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES. YOU AGREE THAT BJN’S LIABILITY FOR DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO $100. THESE LIMITATIONS SHALL APPLY EVEN IF BJN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
- Miscellaneous. You acknowledge that the Software, Documentation, technical data, and any other materials delivered under this Agreement are subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree to comply strictly with these laws and regulations and acknowledge that you have the responsibility to obtain any licenses to export, re-export, or import as may be required after delivery to you. You represent and warrant that you are not a person or entity appearing on the lists published by the U.S. Department of Commerce, the U.S. Department of State, the U.S. Department of Treasury or any other list that may be published by the U.S. Government, as amended from time to time, that is prohibited from acquiring ownership or control of items under this Agreement, or with which BJN is prohibited from doing business. This Agreement shall be governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of California. Any legal claim, suit, action or proceeding arising out of this Agreement or the matters contemplated hereunder or the breach thereof, whether sounding in contract, tort or otherwise, shall likewise be governed by the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule and shall be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in the City of Mountain View and Santa Clara County, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding and waives any objection based on improper venue or forum non conveniens. Notices to be given or submitted by either party to other pursuant to this Agreement shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt) of (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested) or by certified or registered mail, return receipt requested, postage prepaid. The parties acknowledge that they are acting as independent contractors who are solely responsible for their own actions or inactions and that no joint venture, franchise, partnership, agency, or other relationship shall be created or implied by this Agreement. You may not assign or otherwise transfer any of your rights, or delegate or otherwise transfer any of your obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without BJN’s prior written consent, which shall not be unreasonably withheld. Any purported assignment, delegation or transfer in violation of this provision is void. BJN may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without your consent. If any court of competent jurisdiction adjudges any provision of this Agreement to be to be illegal, unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable, but shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. You acknowledge and agree that there can be no adequate remedy at law for any material breach of this Agreement, which breach will result in irreparable harm to BJN, and therefore, upon any such breach or any threat thereof, BJN is entitled to temporary, preliminary and permanent injunctive relief against you (and, if applicable, your officers or employees) without the requirement of posting a bond or proving actual damages, in addition to whatever remedies BJN might have at law. This Agreement constitutes the sole and entire agreement between the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. This Agreement may only be amended, modified or supplemented by an agreement in writing by non-preprinted agreements clearly understood by both parties to be an amendment and signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.