IMPORTANT- READ CAREFULLY: This DIGISTAMP End-User License Agreement ("EULA") is a legal agreement between DigiStamp, Inc. ("DIGISTAMP") and you (either an individual or a single entity) ("YOU") (DIGISTAMP and YOU may be collectively referred to herein as the "Parties"), for the software products and services identified above, which includes computer software and may include associated media, printed materials, and "online" or electronic documentation (the "SOFTWARE PRODUCT"). The SOFTWARE PRODUCT includes all of the contents of the media with which this EULA is provided, including but not limited to (i) DIGISTAMP or third-party software; (ii) digital images, stock photographs, clip art, or other artistic works; (iii) any and all supporting documentation; and (iv) any updates and supplements to the original SOFTWARE PRODUCT provided to YOU by DIGISTAMP. Any software provided along with the SOFTWARE PRODUCT that is associated with a separate end-user license agreement is licensed to YOU under the terms of that license agreement. By installing, copying, downloading, accessing, or otherwise using the SOFTWARE PRODUCT, YOU agree to be bound by the terms of this EULA. If YOU do not agree to the terms of this EULA, do not install or use the SOFTWARE PRODUCT. If YOU do not agree to the terms of this EULA, YOU may return the SOFTWARE PRODUCT within 30 days with proof of purchase to YOUR place of purchase for a full refund of the license fee paid by YOU; provided, however, that if the SOFTWARE PRODUCT is provided to YOU free-of-charge, YOU will not be entitled to any refund. By installing, copying, downloading, accessing, or otherwise using the SOFTWARE PRODUCT YOU also agree and acknowledge that this EULA may be periodically modified. Upon notification of any such modification, YOU may be required to accept a new EULA as a condition of continued use of the SOFTWARE PRODUCT and any associated client-server applications, and possibly the timestamping service entirely.
Should YOU have any questions concerning this EULA, or if YOU desire to contact DIGISTAMP for any reason, please write: DIGISTAMP / 4635 Travis St. Ste 911 / Dallas, Texas, USA 75205.
SOFTWARE PRODUCT LICENSE
The SOFTWARE PRODUCT is protected by copyright
laws and international copyright treaties,
as well as other intellectual property laws
and treaties. The SOFTWARE PRODUCT is licensed,
1. GRANT OF NON-EXCLUSIVE LICENSE This EULA grants YOU the following non-exclusive rights:
2. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS
3. Termination. Without prejudice to any other rights, DIGISTAMP may unilaterally terminate this EULA and the rights granted to YOU hereunder upon written or electronic notice to YOU. Such termination notice may be delivered to YOU electronically as a message that YOU receive when using the SOFTWARE PRODUCT. The rights granted to YOU under this EULA shall also automatically terminate upon YOUR failure to comply with the terms of this EULA.
4. DUAL-MEDIA SOFTWARE. YOU may receive the SOFTWARE PRODUCT in more than one medium. Regardless of the type or size of medium YOU receive, YOU may USE only one medium that is appropriate for YOUR single COMPUTER. YOU may not USE the other medium on another COMPUTER. YOU may not loan, rent, lease, sell, resell or otherwise transfer the other medium to another user.
5. U.S. GOVERNMENT RESTRICTED RIGHTS. All SOFTWARE PRODUCT provided to the U.S. Government pursuant to solicitations is provided with the commercial rights and restrictions described elsewhere herein. All other rights are reserved by DIGISTAMP.
6. EXPORT RESTRICTIONS. This SOFTWARE PRODUCT has been classified by the U.S. Government as exportable but with restrictions, therefore the following restrictions apply: YOU agree that YOU will not export or re-export the SOFTWARE PRODUCT, any part thereof, or any process or service that is the direct product of the SOFTWARE PRODUCT (the foregoing collectively referred to as the "Restricted Components"), to any country, person or entity subject to U.S. export restrictions. YOU specifically agree not to export or re-export any of the Restricted Components to (i) any country to which the U.S. has embargoed or restricted the export of goods or services, which currently includes, but is not necessarily limited to Cuba, Iran, Iraq, Libya, North Korea, Sudan and Syria, or to any national of any such country, wherever located, who intends to transmit or transport the Restricted Components back to such country; (ii) any person or entity that YOU know or have reason to know will utilize the Restricted Components in the design, development or production of nuclear, chemical or biological weapons; or (iii) any person or entity who has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. government. YOU warrant and represent that neither the Department of Commerceís BXA nor any other U.S. federal agency has suspended, revoked or denied YOUR export privileges.
7. COMPLIANCE WITH LICENSES. If YOU are a business or organization, YOU agree that upon request of DIGISTAMP or its authorized representative, YOU will, within thirty (30) days of YOUR receipt of such request, fully document and certify in writing that YOUR USE of any and all DIGISTAMP software at the time of the request is in conformity with YOUR valid licenses from DIGISTAMP and deliver such certification to DIGISTAMP.
8. RELATED SERVICES. YOU hereby expressly acknowledges and agrees that DIGISTAMPís products and services inherently use communications external to the COMPUTER. DIGISTAMP shall not be responsible for payment of any network or communications services and shall not be responsible for establishing nor providing such services.
9. Intellectual Property Rights Indemnification. YOU agree to indemnify and hold harmless DIGISTAMP from any and all loss, liability, and expense (including reasonable attorneysí fees and court costs) incurred by DIGISTAMP as a result of any claim, demand, or action brought against DIGISTAMP as a result of YOUR unauthorized USE of the SOFTWARE PRODUCT.
10. FEE FOR SERVICE . YOU acknowledge and understand that DIGISTAMP may charge a transaction fee for YOUR USE of the SOFTWARE PRODUCT. DIGISTAMP may suspend or terminate YOUR account or YOUR access to DIGISTAMPís services if any YOUR account with DIGISTAMP is delinquent, not paid-in-full, or otherwise not in compliance with the payment terms set forth by DIGISTAMP. DIGISTAMP shall be held harmless AND NOT LIABLE for any damages resulting from the suspension or termination of YOUR account or access to DIGISTAMPís services as provided herein.
11. INITIAL PAYMENT DUE UPON EXECUTION. YOU shall remit to DIGISTAMP 100% of any fees due and payable under the terms of this EULA in order to create an legally enforceable contract.
12. LATE PAYMENTS. Any failure by YOU to make payments relating to any charges invoiced by DIGISTAMP pursuant to this EULA within thirty (30) days of receipt of such invoice shall entitle DIGISTAMP to assess interest on the overdue payment at the rate of one and one-half percent (1.5%) per month or the maximum rate permissible under applicable law, whichever is lower, to be compounded monthly and/or to terminate or suspend YOUR account.
13. LIMITATIONS ON THE NUMBER OF VALIDATION REQUESTS. Because of possible limitations in the DIGISTAMP servers and to ensure validation requests are legitimate, YOU hereby agree that YOU will not, without the express prior written permission of DIGISTAMP, send more than a maximum of one (1) validation request in any five second time span. If YOU have a legitimate need to process more than 1 validation per five seconds, special arrangements may be made prior to YOUR sending the requests to DIGISTAMP, but only if DIGISTAMP, at its sole discretion, chooses to waive the validation request restriction and provides YOU notice thereof.
14. PAYMENT OF TAXES. YOU are responsible for all applicable sales and usage taxes, and personal taxes imposed by any local, state of federal government, except for the taxes on the net income of DIGISTAMP, and hereby agree to so pay.
15. Technical Support Services. Subject to the terms and conditions of this EULA, DIGISTAMP may provide YOU with support services related to the SOFTWARE PRODUCT ("SUPPORT SERVICES"). Use of SUPPORT SERVICES is governed by the DIGISTAMP policies and programs described in the documentation supplied with the SOFTWARE PRODUCT, in "online" documentation, and/or in other DIGISTAMP-provided materials. Any supplemental software code provided to Licensee as part of the SUPPORT SERVICES shall be considered part of the SOFTWARE PRODUCT and shall be subject to the terms and conditions of this EULA. Any technical information provided by YOU may be used by DIGISTAMP free of charge in order improve its product and support development. DIGISTAMP reserves the right at any time to cease support of the SOFTWARE PRODUCT and to alter the price structure, features, specifications, capabilities, functions, terms or general availability thereof.
16. GOVERNING LAW. THIS EULA SHALL BE DEEMED TO BE EXECUTED IN TARRANT COUNTY, TEXAS AND SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES AND WITHOUT REGARD TO THE 1980 UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS.
17. Jurisdiction/Venue. If YOU reside in the U.S. or are a U.S. corporation or U.S. entity, all disputes arising out of this EULA or the interpretation, making, performance, breach or termination thereof, will be subject to the exclusive jurisdiction and venue of the Texas state courts in and for the County of Tarrant or, if there is exclusive federal jurisdiction, then of the federal courts of the Western District of Texas, and the Parties hereby consent to the personal and exclusive jurisdiction of these courts. Notwithstanding the foregoing, if YOU are a foreign corporation or entity, the provisions of Section 18 shall apply.
18. Arbitration. If YOU are not a U.S. corporation or entity, any dispute or claim arising out of or related to this EULA, or the interpretation, execution, performance, breach or termination thereof, shall be finally settled by binding arbitration in Austin, Texas (or such other location as is mutually agreed upon in writing by the Parties) under the American Arbitration Association Arbitration Rules, by one arbitrator appointed in accordance with said Rules. However, at the written request of either party, the arbitration shall be conducted by three arbitrators with each party selecting one arbitrator and the third arbitrator selected in accordance with the Rules. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereover. The arbitrator(s) shall apply Texas law to the merits of any dispute or claim, without regard to any conflict of laws provision. The Parties may apply to any court of competent jurisdiction for a temporary restraining order, preliminary or permanent injunction, or other interim or conservatory relief, as necessary, without breach of this arbitration agreement and without any abridgment of the powers of the arbitrators. At the request of either party, the arbitrators will enter an appropriate protective order to maintain the confidentiality of information produced or exchanged in the course of the arbitration proceedings. The costs of the arbitration, including administrative and arbitrators fees that may become due during the course of the arbitration, shall be shared equally by the Parties; provided, however, that upon the conclusion of the arbitration, the prevailing Party shall be awarded and shall be entitled to recover the costs of the arbitration paid previously by that Party. The arbitral proceedings and all pleadings and written evidence shall be in the English language. Any written evidence originally in another language shall be submitted in English translation accompanied by the original or true copy thereof.
19. UNICITRAL EXCLUSION. The terms of the United Nations Convention on Contracts for the International Sale of Goods [UNCITRAL] are excluded from this EULA.
20. AMENDMENTS, MODIFICATIONS, AND WAIVERS. The terms of this EULA may only be modified by DIGISTAMP. DIGISTAMP reserves the right at any time to cease the support of the SOFTWARE PRODUCT and to alter prices, features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of the SOFTWARE PRODUCT. No delay or failure by DIGISTAMP to exercise or enforce at any time any right or provision of this EULA will be considered a waiver thereof or of DIGISTAMPís right thereafter to exercise or enforce each and every right and provision of this EULA. No single waiver will constitute a continuing or subsequent waiver.
21. EQUITABLE RELIEF. YOU agree that DIGISTAMP will have the right to enforce this EULA and any of its provisions by injunction, specific performance or other equitable relief without prejudice to any other rights and remedies that DIGISTAMP may have for a breach of this EULA.
22. ASSIGNMENT. This EULA and the rights granted to YOU hereunder are not assignable nor transferable by YOU without the prior written consent of DIGISTAMP, and any attempt to do so without such consent shall be void. DIGISTAMP may assign this EULA without consent from YOU. YOU shall notify DIGISTAMP of any transfer of all or substantially all of the business or assets of YOU pertaining to the subject matter hereof, whether by merger, operation of law, reorganization, acquisition or otherwise, and DIGISTAMP reserves the right to terminate or renegotiate the license(s granted to YOU hereunder if such change may affect the scope of YOUR USE of the SOFTWARE PRODUCT.
23. HEADINGS AND REFERENCES. The headings and captions used in this EULA are used for convenience only and are not to be considered in construing or interpreting this EULA.
24. FORCE MAJEURE. DigiStamp will not be liable for any failure or delay in performance under this Agreement which is due to any event beyond its reasonable control, including without limitation, fire, explosion, unavailability of resources, internet outages, labor difficulties, war, riot, act of God, export control regulation, laws, judgments or government instructions.
25. SEVERABILITY. If any part of this EULA is found void and unenforceable, it will not affect the validity of the balance of the EULA, which shall remain valid and enforceable according to the terms.
26. DIGISTAMP as Expert Witness. In the event that YOU wish to use a DIGISTAMP employee or consultant to testify in court or any other legal or quasi-legal proceeding in order to establish the reliability of any DIGISTAMP timestamping, DIGISTAMP may, at its sole discretion, agree to provide such expert testimony. YOU hereby agree that in such an event, YOU shall fully reimburse DIGISTAMP for any and all reasonable costs and expenses incurred by DIGISTAMP or its employee in attending such proceeding. Such costs and expenses may include, but are not limited to, hotel, travel, missed work time and any other expense deemed by DIGISTAMP to be reasonable. In addition, YOU agree to pay a reasonable expert witness fee in an amount that shall be negotiated in good faith by the Parties in the event such an occurrence arises.
27. ENTIRE AGREEMENT. This EULA and the Warranty, Warranty Disclaimers and Limitations on Liability set forth below constitute the entire agreement between the Parties and replaces and makes void any other oral or written agreement which may have been previously entered into. Other terms modifying or making exception to the present EULA shall be considered valid only if established in writing and signed by both Parties.
WARRANTY, WARRANTY DISCLAIMERS AND LIMITATIONS ON LIABILITY
YOU UNDERSTAND AND ACKNOWLEDGE THAT DIGISTAMP IS NOT RESPONSIBLE FOR, AND WILL HAVE NO LIABILITY FOR, HARDWARE, SOFTWARE, OR OTHER ITEMS OR ANY SERVICES PROVIDED BY ANY PERSONS OTHER THAN DIGISTAMP.