End User License Agreement And Terms and Conditions of Sale

END USER LICENSE AGREEMENT
CERBERUS, LLC
CERBERUS FTP SERVER

Software License Agreement for Cerberus FTP Server

IMPORTANT- PLEASE READ CAREFULLY: BY INSTALLING THE SOFTWARE (AS DEFINED BELOW), COPYING THE SOFTWARE AND/OR CLICKING ON THE “ACCEPT” BUTTON BELOW, YOU (EITHER ON BEHALF OF YOURSELF AS AN INDIVIDUAL OR ON BEHALF OF AN ENTITY AS ITS AUTHORIZED REPRESENTATIVE, IN WHICH CASE THE ENTITY TAKES ON ALL RESPONSIBILITIES AND LIABILITIES AS THE LICENSEE UNDER THIS EULA) AGREE TO ALL OF THE TERMS OF THIS END USER LICENSE AGREEMENT (“AGREEMENT”) REGARDING YOUR USE OF THE SOFTWARE. IF YOU DO NOT AGREE WITH ALL OF THE TERMS OF THIS AGREEMENT, CLICK ON THE “CANCEL” BUTTON AND/OR DO NOT INSTALL, COPY OR OTHERWISE USE THE SOFTWARE.

1. GRANT OF LICENSE:

Subject to the terms below, Cerberus, LLC (“Cerberus, LLC”) hereby grants you a perpetual, non-exclusive, non-transferable, revocable license to install and to use the downloadable version of Cerberus FTP Server (“Software”).

If you are licensing the Software as an individual or not-for-profit charitable entity (as set forth in U.S.C., Title 26, Section 501 (c)(3)(excluding governmental entities and educational institutions)) only, a Home edition license will be free to you for the term of the Agreement and you may: (i) install and use the Software on a single computer for your personal, internal use and in no event for the benefit of a company, for-profit entity, governmental entity, or educational institution; and (ii) copy the Software media for back-up or archival purposes.

Each instance of a Virtual Machine (VM) on which the Software is installed is considered one computer.

If you are licensing the Software on behalf of a for-profit entity, governmental entity, or educational institution, your license will be free for an introductory twenty-five (25) day period and, should you elect to purchase the full license, will continue perpetually. During the introductory period, or the full license term, if you elect to purchase it, you may: (i) install and use the Software for your internal use on the number of computers for which you have paid license fees; and (ii) copy the Software for back-up or archival purposes. Whether you are licensing the Software as an individual or on behalf of an entity, you may not: (iii) reverse engineer, decompile, or disassemble the Software; (iv) modify, or create derivative works based upon, the Software in whole or in part; (v) distribute copies of the Software; (vi) remove any proprietary notices or labels on the Software; or (vii) resell, lease, rent, transfer, sublicense, or otherwise transfer rights to the Software without the prior written consent of Cerberus, LLC.

2. TITLE:

You acknowledge that no title to the intellectual property in the Software is transferred to you. Title, ownership, rights, and intellectual property rights in and to the Software shall remain with Cerberus, LLC. The Software is protected by copyright and patent laws of the United States and international treaties.

3. UPDATES.

From time to time, Cerberus, LLC may make available updates to the Software. You may download and install or otherwise use those updates to the Software that are released by Cerberus, LLC within one year of Software registration date. All updates to the Software are governed by this Agreement, unless other license terms are provided with the update.

4. DISCLAIMER OF WARRANTY:

YOU AGREE THAT CERBERUS, LLC HAS MADE NO EXPRESS WARRANTIES, ORAL OR WRITTEN, TO YOU REGARDING THE PRODUCTS AND THAT THE PRODUCTS ARE BEING PROVIDED TO YOU “AS IS” WITHOUT WARRANTY OF ANY KIND. CERBERUS, LLC DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESSED, IMPLIED, OR STATUTORY, INCLUDING, BUT WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NONINFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, SECURITY, AND FITNESS FOR A PARTICULAR PURPOSE.

5. INDEMNITY AND LIMITATION OF LIABILITY:

Indemnity

You agree to indemnify, defend and hold Cerberus, LLC and its principals, employees, contractors, suppliers, and agents harmless from any and all claims and/or demands, including reasonable attorneys’ fees, made by any third party in connection with or arising out of (a) any use or misuse by you (or anyone using your account) of the Software; (b) any act or omission to act by you related to the Software; or (c) harm of any kind caused to any third party in any way involving the Software.

Limitation of Liability

You assume the entire risk of using the program. IN NO EVENT SHALL CERBERUS, LLC BE LIABLE TO YOU FOR ANY DAMAGES, INCLUDING ANY LOST PROFITS, LOST SAVINGS, OR OTHER INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THE USE OF CERBERUS, LLC’S SOFTWARE, EVEN IF CERBERUS, LLC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL CERBERUS, LLC’S LIABILITY FOR ANY CLAIM, WHETHER IN CONTRACT, TORT, OR ANY OTHER THEORY OF LIABILITY, EXCEED THE LICENSE FEE PAID BY YOU, PROVIDED, HOWEVER, IF THE RELEVANT PRODUCT WAS PROVIDED TO YOU AT NO CHARGE YOU AGREE CERBERUS, LLC SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES. THIS LIMITATION SHALL APPLY TO CLAIMS OF PERSONAL INJURY TO THE EXTENT PERMITTED BY LAW.

6. TERMINATION:

The license shall be revoked and this Agreement shall terminate automatically if you fail to comply with the limitations described in this Agreement. No notice shall be required from Cerberus, LLC to effectuate such revocation. Upon revocation, except for failure to renew, you must uninstall and destroy all copies of the Software. If you do not elect to continue the license following the expiration of the introductory period or you do not renew any one (1) year Service Agreement with Cerberus, LLC, your perpetual license will continue but you will no longer receive support for the Software.

7. MISCELLANEOUS:

Severability

In the event of invalidity of any provision of this Agreement, the parties agree that such invalidity shall not affect the validity of the remaining portions of this Agreement.

Export Law Assurance

You acknowledge and agree that the Software is subject to the U.S. Export Administration Regulations. Diversion of such Software contrary to U.S. law is prohibited. You agree that none of the Software, which is subject to the U.S. Export Administration Act, is being or will be acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals, not be used for nuclear activities, chemical or biological weapons, or missile projects unless authorized by the U.S. government. Proscribed countries are set forth in the U.S. Export Administration Regulations. You certify that you are not on the U.S. Department of Commerce’s Denied Persons List. You are responsible for complying with any applicable local laws, including but not limited to the export and import regulations of other countries. These obligations survive expiration or termination of this EULA.

Governing Law

This EULA will be governed by Virginia law and the United States of America, without regard to its choice of law principles. The United Nations Convention for the International Sale of Goods shall not apply.

Entire Agreement

You agree that this is the entire agreement between you and Cerberus, LLC, which supersedes any prior agreement, whether written or oral, and all other communications between Cerberus, LLC and you relating to the subject matter of this Agreement.

Reservation of rights

All rights not expressly granted in this Agreement are reserved by Cerberus, LLC.

TERMS AND CONDITIONS OF SALE

These Terms and Conditions of Sale establish the basis on which the purchase and sale of products and services described in Customer purchase orders and furnished by Cerberus, LLC (“Cerberus”), (hereinafter, “Item(s)” or “item(s)”) is made by and between you (“Customer”) and Cerberus. Every purchase order placed with Cerberus is conditioned on and confirms Customer’s acceptance of these terms and conditions of sale, and Cerberus agrees to furnish the Items described in Customer’s purchase orders only upon these terms and conditions. Any terms or conditions to the contrary appearing on orders, or within Customer’s terms and conditions of purchase or any other documentation shall be of no effect. No waiver, modification, or addition to these terms and conditions, or any assignment of Customer’s rights or obligations hereunder shall be valid or binding on Cerberus unless in writing and signed by an authorized Cerberus representative.

QUOTATIONS AND PURCHASE ORDERS:

Quotations submitted by Cerberus shall be valid for the period therein stated, or where no period is stated then for a period of thirty days from date that such quotation is issued by Cerberus. Each Purchase Order is subject to these Terms and Conditions of Sale which may not be modified or varied without our prior written agreement. For the purpose of this Agreement the terms Goods and Services shall be defined in the Purchase Order(s). A Purchase Order is deemed to have been accepted by us only after a written Order Acknowledgement has been issued to you. We reserve the right to refuse to accept any Purchase Order for whatever reason. If at any time after we receive your Purchase Order you wish to make any modifications or additions to it, we shall endeavor to comply with your request, on the understanding that any resultant variations such as price or delivery date must be accepted by us, in writing, in advance of the change being implemented.

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