eVisitor End User Licensing Agreement

ENGLISH IMPORTANT: BY USING eVisitor, YOU ARE AGREEING TO BE BOUND BY THE FOLLOWING TERMS: A. Avery Products Corporation, Inc. . DBA THRESHOLD eVisitor SOFTWARE LICENSE AGREEMENT B. NOTICES FROM Avery Products Corporation . DBA THRESHOLD C. Our Privacy Terms and Conditions D. Website Terms of Use eVisitor SOFTWARE LICENSE AGREEMENT Single Use License PLEASE READ THIS SOFTWARE LICENSE AGREEMENT (“LICENSE”) CAREFULLY BEFORE USING eVisitor OR DOWNLOADING THE SOFTWARE UPDATE ACCOMPANYING THIS LICENSE. BY USING eVisitor OR DOWNLOADING A SOFTWARE UPDATE, AS APPLICABLE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT USE THE eVisitor OR DOWNLOAD THE SOFTWARE UPDATE. IF YOU HAVE RECENTLY PURCHASED eVisitor AND YOU DO NOT AGREE TO THE TERMS OF THE LICENSE, YOU MAY RETURN eVisitor WITHIN THE RETURN PERIOD TO THRESHOLD OR THE AUTHORIZED DISTRIBUTOR WHERE YOU OBTAINED IT FOR A REFUND, SUBJECT TO DATA MANAGEMENT’S RETURN POLICY FOUND AT https://www.thresholdsecurity.com/refund_returns/ 1. General. (a) The software, documentation, interfaces, content, fonts and any data that came with the eVisitor Software (“Original eVisitor Software”), as may be updated or replaced by feature enhancements, software updates or system restore software provided by THRESHOLD. (“eVisitor Software Updates”), whether in read only memory, on any other media or in any other form (the Original eVisitor Software and eVisitor Software Updates are collectively referred to as the “eVisitor Software”) are licensed, not sold, to you by THRESHOLD (“THRESHOLD”) for use only under the terms of this License. THRESHOLD and its licensors retain ownership of the eVisitor Software itself and reserve all rights not expressly granted to you. (b) THRESHOLD, at its discretion, may make available future eVisitor Software Updates for you. The terms of this License will govern any eVisitor Software Updates provided by THRESHOLD that replace and/or supplement the Original eVisitor Software product, unless such eVisitor Software Update is accompanied by a separate license in which case the terms of that license will govern. 2. Permitted License Uses and Restrictions. (a) Subject to the terms and conditions of this License, you are granted a limited non-exclusive, non-sublicensable, and non-transferable license to use the eVisitor Software on a single computer during the Term of this Agreement. Except as permitted in Section 2(b) below, and unless as provided in a separate agreement between you and THRESHOLD, this License does not allow the eVisitor Software to exist on more than one computer at a time, and you may not distribute or make the eVisitor Software available over a network where it could be used by multiple devices at the same time. This License does not grant you any rights to use THRESHOLD proprietary interfaces and other intellectual property in the design, development, manufacture, licensing or distribution of third-party devices and accessories, or third party software applications, for use with eVisitor. (b) Subject to the terms and conditions of this License, you are granted a limited non-exclusive license to download eVisitor Software Updates that may be made available by THRESHOLD for you to update or restore the software on any such computer that you own or control. This License does not allow you to update or restore any computer that you do not control or own, and you may not distribute or make the eVisitor Software Updates available over a network where they could be used by multiple devices or multiple computers at the same time. If you download an eVisitor Software Update to your computer, you may make one copy of eVisitor Software Updates stored on your computer in machine-readable form for backup purposes only, provided that the backup copy must include all copyright or other proprietary notices contained on the original. (c) You may not, and you agree not to or enable others to, copy (except as expressly permitted by this License), decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, or create derivative works of the eVisitor Software or any services provided by the eVisitor Software or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or by licensing terms governing use of open-source components that may be included with the eVisitor Software). (d) By storing content on eVisitor you are making a digital copy. In some jurisdictions, it is unlawful to make digital copies without prior permission from the rights holder. (e) You agree to use the eVisitor Software and the Services (as defined in Section 5 below) in compliance with all applicable laws, including local laws of the country or region in which you reside or in which you download or use the eVisitor Software and Services. (f) Use of and access to certain features of the eVisitor Software and certain Services (as defined in Section 5) may require you to apply for a unique user name and password combination, known as a THRESHOLD ID. In addition, you acknowledge that many features and Services of the eVisitor Software transmit data and could impact charges to your data plan, and that you are responsible for any such charges. (g) You may not, and you agree not to or enable or promote others to, use the eVisitor Software to collect or store any Protected Health Information or Electronic Protected Health Information as defined in 45 CFR § 160.103. 3. Transfer. You may not rent, lease, lend, sell, redistribute, give away, or sublicense the eVisitor Software. You may, however, make a one-time permanent transfer of all of your license rights to the eVisitor Software to another party provided that: (a) the party receiving the eVisitor Software reads and agrees to accept the terms and conditions of this License. (b) the party receiving the eVisitor Software pays all subscription fees due. 4. Consent to Use of Data. (a) Diagnostic and Usage Data. You agree that THRESHOLD and its subsidiaries and agents may collect, maintain, process and use diagnostic, technical, usage and related information, including but not limited to unique system or hardware identifiers, information about your computer, system and application software, and peripherals, that is gathered periodically to provide and improve THRESHOLD’s products and services, facilitate the provision of software updates, product support and other services to you (if any) related to the eVisitor Software, and to verify compliance with the terms of this License. THRESHOLD may use this information, as long as it is collected in a form that does not personally identify you, for the purposes described above. To enable THRESHOLD’s partners and third-party developers to improve their software, hardware and services designed for use with THRESHOLD products, THRESHOLD may also provide any such partner or third party developer with a subset of diagnostic information that is relevant to that partner’s or developer’s software, hardware and/or services, as long as the diagnostic information is in a form that does not personally identify you. (b) Privacy Policy. At all times your information will be treated in accordance with THRESHOLD’s Privacy Policy, which is incorporated by reference into this License and can be viewed at: https://thresholdsecurity.com/privacy_policy/ 5. Services and Third Party Materials. (a) The eVisitor Software may enable access to THRESHOLD’s Cloud Services and third party services and web sites (collectively and individually, “Services”). Such Services may not be available in all languages or in all countries. Use of these Services requires Internet access and use of certain Services may require a THRESHOLD ID, may require you to accept additional terms and may be subject to additional fees. By using this software in connection with a THRESHOLD ID, or other THRESHOLD Service, you agree to the applicable terms of service for that Service. (b) Neither THRESHOLD nor any of its content providers guarantees the availability, accuracy, completeness, reliability, or timeliness of location data or any other data displayed by any Services. (c) To the extent that you upload any content through the use of the Services, you represent that you own all rights in, or have authorization or are otherwise legally permitted to upload, such content and that such content does not violate any terms of service applicable to the Services. You agree that the Services contain proprietary content, information and material that is owned by THRESHOLD, the site owner and/or their licensors, and is protected by applicable intellectual property and other laws, including but not limited to copyright. You agree that you will not use such proprietary content, information or materials other than for permitted use of the Services or in any manner that is inconsistent with the terms of this License or that infringes any intellectual property rights of a third party or THRESHOLD. No portion of the Services may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Services, in any manner, and you shall not exploit the Services in any unauthorized way whatsoever, including but not limited to, using the Services to transmit any computer viruses, worms, trojan horses or other malware, or by trespass or burdening network capacity. You further agree not to use the Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that THRESHOLD is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive, infringing or illegal messages or transmissions that you may receive as a result of using any of the Services. (d) In addition, Services and Third Party Materials (as defined in Section 14) that may be accessed, linked to or displayed on eVisitor are not available in all languages or in all countries or regions. THRESHOLD makes no representation that such Services and Third Party Materials are appropriate or available for use in any particular location. To the extent you choose to use or access such Services and Third Party Materials, you do so at your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws and privacy and data collection laws. THRESHOLD and its licensors reserve the right to change, suspend, remove, or disable access to any Services at any time without notice. In no event will THRESHOLD be liable for the removal of or disabling of access to any such Services. THRESHOLD may also impose limits on the use of or access to certain Services, in any case and without notice or liability. 6. Termination. This License is effective until terminated. Your rights under this License will terminate automatically or otherwise cease to be effective without notice from THRESHOLD if you fail to comply with any term(s) of this License. Upon the termination of this License, you shall cease all use of the eVisitor Software. Sections 4, 5, 6, 7, 8, 9, 12 and 13, of this License shall survive any such termination. 7. Disclaimer of Warranties. 7.1 If you are a customer who is a consumer (someone who uses the eVisitor Software outside of your trade, business or profession), you may have legal rights in your country of residence which would prohibit the following limitations from applying to you, and where prohibited they will not apply to you. To find out more about rights, you should contact a local consumer advice organization. 7.2 YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, USE OF THE eVisitor SOFTWARE AND ANY SERVICES PERFORMED BY OR ACCESSED THROUGH THE eVisitor SOFTWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. 7.3 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE eVisitor SOFTWARE AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND THRESHOLD AND THRESHOLD’S LICENSORS (COLLECTIVELY REFERRED TO AS “THRESHOLD” FOR THE PURPOSES OF SECTIONS 7 AND 8) HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE eVisitor SOFTWARE AND SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. 7.4 THRESHOLD DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE eVisitor SOFTWARE AND SERVICES, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE eVisitor SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE eVisitor SOFTWARE AND SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY SERVICE WILL CONTINUE TO BE MADE AVAILABLE, THAT DEFECTS IN THE eVisitor SOFTWARE OR SERVICES WILL BE CORRECTED, OR THAT THE eVisitor SOFTWARE WILL BE COMPATIBLE OR WORK WITH ANY THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES. INSTALLATION OF THIS eVisitor SOFTWARE MAY AFFECT THE USABILITY OF THIRD PARTY SOFTWARE, APPLICATIONS OR THIRD PARTY SERVICES. 7.5 YOU FURTHER ACKNOWLEDGE THAT THE eVisitor SOFTWARE AND SERVICES ARE NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR INACCURACIES IN, THE CONTENT, DATA OR INFORMATION PROVIDED BY THE eVisitor SOFTWARE OR SERVICES COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. 7.6 NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY THRESHOLD OR AN THRESHOLD AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE eVisitor SOFTWARE OR SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU. 8. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL THRESHOLD BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, CORRUPTION OR LOSS OF DATA, FAILURE TO TRANSMIT OR RECEIVE ANY DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE eVisitor SOFTWARE AND SERVICES OR ANY THIRD PARTY SOFTWARE OR APPLICATIONS IN CONJUNCTION WITH THE eVisitor SOFTWARE OR SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF THRESHOLD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall THRESHOLD’s TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF TWO HUNDRED AND FIFTY DOLLARS (U.S.$250.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. 9. Digital Certificates. The eVisitor Software contains functionality that allows it to accept digital certificates either issued from THRESHOLD or from third parties. YOU ARE SOLELY RESPONSIBLE FOR DECIDING WHETHER OR NOT TO RELY ON A CERTIFICATE WHETHER ISSUED BY THRESHOLD OR A THIRD PARTY. YOUR USE OF DIGITAL CERTIFICATES IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THRESHOLD MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, ACCURACY, SECURITY, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS WITH RESPECT TO DIGITAL CERTIFICATES. 10. Export Control. You may not use or otherwise export or re-export the eVisitor Software except as authorized by United States law and the laws of the jurisdiction(s) in which the eVisitor Software was obtained. In particular, but without limitation, the eVisitor Software may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the eVisitor Software, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the eVisitor Software for any purposes prohibited by United States law. 11. Government End Users. The eVisitor Software and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States. 12. Controlling Law and Severability. This License will be governed by and construed in accordance with the laws of the State of Connecticut, excluding its conflict of law principles. This License shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If you are a consumer based in the United Kingdom, this License will be governed by the laws of the jurisdiction of your residence. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this License shall continue in full force and effect. 13. Complete Agreement; Governing Language. This License constitutes the entire agreement between you and THRESHOLD relating to the eVisitor Software and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this License will be binding unless in writing and signed by THRESHOLD. Any translation of this License is done for local requirements and in the event of a dispute between the English and any non-English versions, the English version of this License shall govern, to the extent not prohibited by local law in your jurisdiction. 14. Third Party Acknowledgements. Portions of the eVisitor Software may utilize or include third party software and other copyrighted material (“Third Party Materials”). Acknowledgements, licensing terms and disclaimers for such material are contained in the electronic documentation for the eVisitor Software, and your use of such material is governed by their respective terms. 15. National Sex Offender Checks. 15.1 Information presented in this service is aggregated public information. Some or all of the information on this server contain links and references to information created and maintained by public/governmental agencies for the purpose of maintaining public awareness of sexual predators. Portions of the information created by these public/governmental agencies relies on self-reported information obtained from offenders as required by law. Please note THRESHOLD does not control nor can it guarantee the accuracy, timeliness or relevance of these public documents, self-reported information and materials and, as such, THRESHOLD and/or any of its subsidiaries/partners are not responsible for this information. This information is made available for public use. 15.2 The information contained within and services presented by this site do not represent any possibility of an offender committing another offense in the future. The information contained and services presented are for the purposes of information dissemination and public awareness. Any acts of violence, intimidation, physical confrontation, harassment in any form, stalking, etc. are likely violations of state and local law. These types of behavior are neither encouraged nor condoned by THRESHOLD nor any of its subsidiaries, partners or employees. 15.3 If there is a belief that any information contained within this site is in error, please contact the local/state reporting agency responsible for publishing that information. NOTICES FROM THRESHOLD If THRESHOLD needs to contact you about your product or account, you consent to receive the notices by email. You agree that any such notices that we send you electronically will satisfy any legal communication requirements.