EULA (License Terms and Conditions)April 23, 2017, 7:13 pm
April 23, 2017, 7:13 pm
July 6, 2022, 6:42 pm
Fri December 9, 2022, 12:00 am
Fri December 9, 2022, 12:00 am
LICENSE TERMS and CONDITIONS
THIS IS A LEGAL AGREEMENT. BY CLICKING ON THE “I AGREE” (OR SIMILAR) BUTTON THAT IS PRESENTED TO YOU AT THE TIME OF PURCHASE, OR BY DOWNLOADING, INSTALLING, COPYING, SAVING ON YOUR DEVICE, OR OTHERWISE USING HSMADVISOR OR FSWIZARD SOFTWARE, SUPPORT, OR PRODUCTS, YOU BECOME A PARTY TO THIS AGREEMENT, YOU DECLARE YOU HAVE THE LEGAL CAPACITY TO ENTER INTO THIS AGREEMENT, AND YOU CONSENT TO BE BOUND BY ALL THE TERMS AND CONDITIONS SET FORTH BELOW.
1.1. “Customer” or “you” means the individual or an organization making the purchase of a license or a subscription to a service, who is at least 13 years old.
1.2. “HSMAdvisor” or “we” means HSMAdvisor Inc.
1.3. HSMAdvisor Inc and Customer may each also be referred to individually as a “Party” or jointly as the “Parties”.
2.1. “Affiliate” means, with respect to any Party, any entity that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control of such Party; “control” for such purposes means the possession, direct or indirect, of the power to direct or affect the direction of the management and policies of a person or entity, whether through the ownership of voting securities, by contract, or otherwise.
2.2. “Agreement” means this HSMAdvisor and FSWizard LICENSE AGREEMENT.
2.3. “Machine” means a computing device used by the Customer for running the Product.
2.4. "License Seat" means the license assigned to a particular terminal of the end-user by means of obtaining a License Key
2.5. “Product” means any generally available HSMAdvisor or FSWizard software intended for mass distribution on HSMAdvisor’s website at https://HSMAdvisor.com. HSMAdvisor does not develop Products according to the Customer’s specifications, nor are Products customized through modification or personalization.
2.6. “Redistributable Product” means an independent module of a Product or a standalone HSMAdvisor development tool designated by HSMAdvisor as “Redistributable” in its name or in its official description, such as a Software Development Kit (SDK), Application Programming Interface (API), or Command Line Tool application (CLT), and which may be subject to additional terms.
2.7. “Subscription” specifies the subscription term, Products provided to the Customer, subscription fees, and payment schedules. Subscriptions do not apply to Redistributable Products.
2.8. “Subscription Confirmation” means an email confirming the Customer’s rights to access and use Products (excluding Redistributable Products), including Subscription plans, and stating the applicable use limitations for the Product (such as, for example, the number of users and the license period).
3. GRANT OF RIGHTS
3.1 The Product is provided to the Customer on a ‘per seat’ basis, where the Customer may deploy the Product on multiple Machines in accordance with the Product documentation, provided that the number of concurrent users does not exceed the number of Seats allowed in the License Account
3.2. Unless the Subscription has expired or this Agreement is terminated, HSMAdvisor grants you the non-exclusive and non-transferable right to use each Product covered by the Subscription as stipulated below:
(A) You may:
(i) install and use any version of the Product covered by the Subscription on any number of Machines and on any operating system supported by the Product; and
(ii) make one copy of the Product solely for archival, security, and/or backup purposes.
(B) You may not:
(i) allow the same Subscription to be used concurrently by more users than is specified in the License Account
(ii) rent, lease, reproduce, modify, adapt, create derivative works of, distribute, sell, or transfer the Product or a License Account;
(iii) provide a third party with access to the Product or your License Account, or the right to use the Product;
(iv) reverse engineer, decompile, disassemble, modify, translate, or make any attempt to discover the source code of, the Product; or
(v) remove or obscure any proprietary or other notices contained in the Product.
3.3. Customer acknowledges that no ownership rights are conveyed to you, irrespective of the use of terms such as ‘purchase’ or ‘sale’. HSMAdvisor has and retains all rights, title, and interest, including all intellectual property rights, in and to the Products, any and all related or underlying technology, and any modifications or derivative works of the Products, including without limitation as they may incorporate Feedback (as defined below).
3.4. If an independent module of the Product or the Product as a whole is a Redistributable Product, the following provisions shall apply in addition to Sections 3.2, unless specified otherwise in the terms relating to the use of the particular Redistributable Product:
(A) You may:
(i) use the Redistributable Product without the quantitative restrictions set out in Sections 3.1 and 3.2(B)(i);
(ii) transfer, reproduce, redistribute, and provide access to the Redistributable Product to a third party;
(iii) sell your product containing or using the Redistributable Product to a third party, but not the Redistributable Product on its own;
(iv) redistribute the Redistributable Product onto another Machine for legitimate purposes in accordance with this Agreement and applicable law, and use the Redistributable Product on that Machine, provided that you have received authorization from the owner of that Machine to deploy and use the Redistributable Product in this way. You will indemnify HSMAdvisor against any losses, costs, or damages arising from your deployment of the Redistributable Product onto another Machine in violation of this Section.
(B) You agree that any Redistributable Product you reproduce, redistribute, or provide a third party access to must be governed by an agreement concluded between the relevant third party as a Customer and HSMAdvisor, and that the third party must be bound by that agreement prior to the use of the reproduced or redistributed Redistributable Product. HSMAdvisor is the exclusive owner and licensor of the Redistributable Product. You acknowledge that you are liable to HSMAdvisor for any loss or damages in connection with any breach of this Section.
4. PURCHASING THROUGH RESELLERS AND DISTRIBUTORS
This Agreement applies whether you purchase a Subscription directly from HSMAdvisor or through an authorized HSMAdvisor reseller or distributor. If you purchase through a HSMAdvisor reseller or distributor, the Subscription details shall be as stated in the Subscription Confirmation issued to you by the reseller or distributor, and the reseller or distributor is responsible for the accuracy of any such Subscription Confirmation. Neither resellers nor distributors are authorized to make any promises or commitments on HSMAdvisor’s behalf, and you understand and agree that HSMAdvisor is not bound by any obligations to you other than as specified in this Agreement.
5. ACCESS TO PRODUCTS
5.1. All deliveries under this Agreement will be electronic. You must have an Internet connection in order to access your HSMAdvisor Account and receive any deliveries. You are responsible for downloading and installing the Products, which are made available for download on the HSMAdvisor website at https://HSMAdvisor.com.
5.3 You may activate and access Products in one of the following ways:
(A) Automatic Registration - for computers, connected to the Internet by entering your License Information into the License Activation dialog.
(B) Email - for offline computers by sending us your Computer ID taken from the License Activation dialog
6.1. Customer shall pay Subscription fees in accordance with the HSMAdvisor current prices (available at https://hsmadvisor.com/buy) or an authorized HSMAdvisor reseller’s terms of purchase, whichever are applicable.
6.2. The Subscription fees must be paid in full, and any levies, duties, and/or taxes imposed by Customer’s jurisdiction (including, but not limited to, value added tax, sales tax, and withholding tax) shall be borne solely by Customer. Customer may not deduct any amounts from fees payable to HSMAdvisor or an authorized HSMAdvisor reseller, unless otherwise specified in the applicable terms of purchase.
7. THIRD-PARTY SOFTWARE
The Products include proprietary code and open source libraries, licensed under MIT license.
8.1. Subject to the terms of this Agreement, Customer is granted a one-time right to install and use each major version of a Product for evaluation purposes, without charge, for a period of thirty (30) days (or such other period as may be specified in the official Product documentation) from the date of Product installation (“Evaluation Period”). Customer’s use of the Product during the Evaluation Period shall be limited to evaluation and testing of the Product for the sole purpose of determining whether the Product meets Customer’s requirements and whether Customer wishes to continue using the Product.
8.2. Customer may end the Evaluation Period at Customer’s sole discretion any time. Upon the expiration of the Evaluation Period, Customer has the right to continue using the Product with limited functionality, unless Customer purchases a Subscription to the Product. The Product contains a feature that will automatically limit the functionality of the Product upon the expiration of the Evaluation Period.
9. WARRANTY LIMITATIONS
9.1. ALL PRODUCTS ARE PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE PRODUCTS IS AT CUSTOMER’S OWN RISK.
9.2. HSMAdvisor MAKES NO WARRANTY AS TO THE PRODUCTS’ USE OR PERFORMANCE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HSMAdvisor (AND ITS AFFILIATES, SHAREHOLDERS, AGENTS, DIRECTORS, AND EMPLOYEES), ITS LICENSORS, SUPPLIERS (INCLUDING THE PROVIDERS OF THIRD PARTY SOFTWARE), AND RESELLERS (COLLECTIVELY HEREUNDER, “HSMAdvisor PARTIES”) DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED (INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT) WITH REGARD TO THE PRODUCTS AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES.
9.3. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HSMAdvisor PARTIES DO NOT REPRESENT OR WARRANT THAT THE PRODUCTS: (A) ARE ACCURATE, RELIABLE, OR CORRECT; (B) WILL MEET ANY CUSTOMER REQUIREMENTS; (C) WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED, OR SECURE; (D) ARE FREE OF DEFECTS OR ERRORS AND THAT ANY, IF FOUND, WILL BE CORRECTED; AND/OR (E) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
9.4. ANY CONTENT OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PRODUCTS ARE DOWNLOADED AT CUSTOMER’S OWN RISK; CUSTOMER AGREES IT IS SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS PROPERTY AND/OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD.
9.5. CUSTOMER MAY HAVE OTHER RIGHTS WHICH MAY NOT BE LIMITED OR EXCLUDED AND WHICH MAY VARY FROM JURISDICTION TO JURISDICTION. THIS DOCUMENT IS NOT INTENDED TO NEGATIVELY AFFECT SUCH RIGHTS.
10. DISCLAIMER OF DAMAGES
10.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL HSMAdvisor PARTIES BE LIABLE TO CUSTOMER, CUSTOMER’S AFFILIATES, USERS, OR ANYONE ELSE FOR: (A) ANY LOSS OF USE, DATA, GOODWILL, OR PROFITS, WHETHER OR NOT FORESEEABLE; (B) ANY LOSS OR DAMAGES IN CONNECTION WITH TERMINATION OR SUSPENSION OF CUSTOMER’S ACCESS TO THE PRODUCTS IN ACCORDANCE WITH THIS AGREEMENT; OR (C) LOSS OF LIFE, DISABILITY, INJURY; OR (D) ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHATSOEVER (EVEN IF THE RELEVANT HSMAdvisor PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES), INCLUDING THOSE (X) RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT THEY ARE FORESEEABLE, (Y) BASED ON ANY THEORY OF LIABILITY, INCLUDING BREACH OF CONTRACT OR WARRANTY, STRICT LIABILITY, NEGLIGENCE, OR OTHER TORTIOUS ACTION, OR (Z) ARISING FROM ANY OTHER CLAIM ARISING OUT OF OR IN CONNECTION WITH CUSTOMER’S USE OF OR ACCESS TO THE PRODUCTS OR SUPPORT. THIS LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
10.2. THE TOTAL LIABILITY OF THE HSMAdvisor PARTIES IN ANY MATTER ARISING OUT OF OR IN RELATION TO THIS AGREEMENT IS LIMITED TO THE AGGREGATE AMOUNT PAID OR PAYABLE BY CUSTOMER DURING THE THREE-MONTH PERIOD PRECEDING THE EVENT FOR THE PRODUCTS GIVING RISE TO THE LIABILITY. THIS LIMITATION WILL APPLY EVEN IF THE HSMAdvisor PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF LIABILITY EXCEEDING SUCH AN AMOUNT AND NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
11. TERM AND TERMINATION
11.1. The term of this Agreement will commence upon acceptance of this Agreement by Customer as set forth in the preamble above, and it will continue for each Product through the end of the applicable Subscription period specified in the respective Subscription Confirmation.
11.1 The Recurring Subscription and this Agreement will automatically renew in respect to each Product for a successive Subscription period unless terminated in accordance with this Agreement.
11.2. You may terminate this Agreement at any time by canceling your Product Subscription by contacting support or through your PayPal account. If such termination occurs during a Subscription period, this Agreement will continue to be effective until the end of that Subscription period. Such termination does not relieve you of the obligation to pay any outstanding Subscription fees owed to HSMAdvisor, and no credits or refunds will be issued to you for prepaid Subscription fees
11.3. HSMAdvisor may terminate this Agreement and the associated Subscription if:
(A) Customer has materially breached this Agreement and fails to remedy the breach within thirty (30) days of written notice;
(B) Customer fails to make timely payment of Subscription fees in accordance with Section 6 of this Agreement;
(C) HSMAdvisor is required to do so by law (for example, where the provision of the Product to Customer is, or becomes, unlawful); or
(D) HSMAdvisor elects to discontinue providing the Product, in whole or in part.
11.4. HSMAdvisor reserves the right to terminate this Agreement and the Subscription in cases of breach of this Agreement by the Customer
11.5. Upon the expiration or termination of this Agreement, Customer must stop using this software.
11.6. The term of this Agreement will continue for each respective Redistributable Product until terminated by either Customer or HSMAdvisor, unless specified otherwise by specific terms governing the use of the Redistributable Product.
12. TEMPORARY SUSPENSION
12.1. HSMAdvisor reserves the right to suspend Customer’s access to HSMAdvisor Products if:
(A) Customer fails to pay Subscription fees on time in accordance with Section 6;
(B) Customer’s use of Product is in violation of this Agreement or disrupts or imminently threatens the security, integrity, or availability of a Product.
12.2. If HSMAdvisor suspends Customer’s access to Products for non-payment in accordance with Section 12.1(A), Customer must pay all past due amounts in order to resume access to Product.
13. EXPORT REGULATIONS
13.1. Customer must comply with all applicable laws and regulations with regard to economic sanctions, export controls, import regulations, restrictive measures, and trade embargoes (all herein referred to as “Sanctions”), including those of Canada and United States. Customer declares and warrants that it is not a person targeted by Sanctions nor is it otherwise acting on behalf of any entity or person targeted by Sanctions. Customer agrees that it will not download or otherwise export or re-export the Product or any related technical data directly or indirectly to any person targeted by Sanctions or download or otherwise use the Product for any end-use prohibited or restricted by Sanctions.
14.2. Changes to this Agreement. The Agreement can be updated from time to time, to reflect changes in the Product and how it is offered to you.
(A) Any updated Agreement will start (‘be effective’) on the date specified in the updated Agreement. By continuing to use the Product after the effective date you agree to be bound by the modified Agreement.
(B) We respect that you may not agree to the updated Agreement. If that is the case, you can terminate your Subscription any time up to 30 days after the effective date of the updated Agreement. Termination according to this Section entitles you to a pro-rata refund of the pre-paid unused Subscription fees.
14.3. Opportunity to Review. You declare that you have had sufficient opportunity to review this Agreement, understand the content of all of its sections, negotiate its terms, and seek independent professional legal advice before entering into it. Consequently, any statutory “form contract” (“adhesion contract”) regulations shall not be applicable to this Agreement.
14.4. Severability. If a particular term of this Agreement is not enforceable, the unenforceability of that term will not affect any other terms of this Agreement.
14.5. Interpretation. Headings and titles are for convenience only and do not affect the interpretation of this Agreement. Terms such as “including” are not exhaustive.
14.6. No Waiver. Our failure to enforce or exercise any part of this Agreement is not a waiver of that section.
14.7. Notice. HSMAdvisor may deliver any notice to Customer via electronic mail to an email address provided by Customer, or via Customer’s HSMAdvisor Account, registered mail, personal delivery, or reputable express courier (such as DHL, FedEx, or UPS). Any such notice will be deemed to be effective (i) on the day the notice is sent to Customer via email, (ii) upon being uploaded to Customer’s HSMAdvisor Account (irrespective of when Customer actually receives it), (iii) upon personal delivery, (iv) one (1) day after deposit with an express courier, or (v) five (5) days after deposit in the mail, whichever occurs first.
14.8. Governing Law. This Agreement is governed by the laws of Canada, without reference to conflict of laws principles and specifically excluding the United Nations Convention on Contracts for the International Sale of Goods. The Parties to the agreement constituted by this Agreement undertake to use their best commercial efforts to amicably settle any disputes arising hereunder (“Dispute”).
14.10. Force Majeure. Neither Party shall be in breach of this Agreement, or otherwise liable to the other, by reason of any delay in performance, or non-performance, of any of its obligations under this Agreement (except payment obligations), arising directly from an act of God, fire, flood, natural disaster, act of terrorism, strike, lock-out, labor dispute, public health emergency, civil commotion, riot, or act of war.