END-USER LICENSE AGREEMENT FOR PASSWORD BOSS
IMPORTANT – READ CAREFULLY: This PasswordBoss Software License Agreement
(„Agreement“) is a legally binding license agreement between You and PasswordBoss, LLC (“PasswordBoss“), for all of the Software and Services obtained from PasswordBoss (each a “Solution”) as further defined in this Agreement.
By clicking an acceptance button and installing a Solution, you agree unconditionally to be bound by this Agreement and acknowledge that it is enforceable as a written contract signed by you. If you do not unconditionally agree to all of these terms, do not install, use or access a Solution. If you do so, you will not be able to use any Solution covered by this Agreement. If you decline to accept this Agreement, or if you are not satisfied with a Solution for any other reason, and you did not purchase the Solution from a Mobile App Store, you may obtain a refund of the amounts you have paid for the Solution within the past 30 days by following the instructions at https://www.passwordboss.com/billing.
PasswordBoss may amend this Agreement at any time by notice provided to you in accordance with this Agreement, and your continued use of, or decision not to seek a refund for, any Solution at any point at least 30 days after the notice date will constitute your acceptance of the amendment of this Agreement. PasswordBoss may require that you accept the amendment of this Agreement in order to continue using Solution you have previously installed or purchased. If you decline to accept the amendment of this Agreement, PasswordBoss may terminate your use of the affected Solution, but will refund the amounts you paid for the Solution (prorated for the unexpired portion of the Subscription Period).
In this Agreement you:
Represent that you are 18 years of age or older, and are authorized to accept this Agreement on behalf of all of the individuals and entities for whom (or for whose Device) you obtain a Solution;
Represent and warrant that you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and that you are not a person who is either barred or otherwise legally prohibited from receiving or using a Solution under the laws of the country in which you are resident or from which you access or use a Solution;
If, in the course of acquiring a Solution you provided PasswordBoss with an email address and that email address later changes, you must update your user profile to ensure that you receive notices about Subscription Period extensions and other important information about this Agreement and a Solution. Please visit https://portal.passwordboss.com to manage your email address. To the extent you purchased your license directly from PasswordBoss pursuant to a signed, written agreement, this requirement does not apply to you.
PasswordBoss, subject to the Special Terms, may from time to time update any Solution or replace a Solution with another Solution with similar functionality without requesting or obtaining your separate consent, and your Device or certain Device functions may not be available to you while the Update is in process;
Affiliate means, with respect to PasswordBoss, an entity controlling, controlled by or under common control with PasswordBoss. “Control”, as used in this section, means ownership of more than 50% of the outstanding voting interest of the applicable entity.
Applicable Conditions, with respect to any Solution, means the Subscription Period for the Software, whether the Subscription Period automatically extends, the number and type of Devices for which the Solution is authorized, and other similar terms governing use of that Solution. The Applicable Conditions are specified (i) on the checkout payment page if you obtain the Solution over the Internet, from a Mobile App Store or by other electronic means, or (ii) on the package if you acquired the Solution on CD or other physical medium.
Authorized Purposes means (i) with respect to Free Software and Beta Software, your personal, noncommercial use, and (ii) with respect to other Solution, your personal use or internal commercial use, and in each case not for resale or other exploitation for the benefit of a third party.
PasswordBoss means PasswordBoss, LLC, a Minnesota corporation at 2751 Hennepin Ave South #252, Minneapolis, MN 55408, U.S.A.
Beta Software means any Evaluation Solution and any Solution marked or otherwise designated as a beta test version, irrespective of whether payment has been made.
Device means any mobile phone, mobile device, tablet, mobile network appliance, other mobile product (each, a “Mobile Device”) or any personal computer running on an operating system supported by PasswordBoss as specified in the Applicable Conditions and in the Technical Specifications in respect of the Solution.
Claim has the meaning ascribed to it by Section 8.1 of this Agreement.
Evaluation Software means an otherwise paid Solution that PasswordBoss provides without receiving payment for trial or evaluation purposes.
Extension Period has the meaning ascribed to it by Section 4.1 of this Agreement.
Free Software means any Solution other than Beta Software that PasswordBoss designates as “free” or otherwise provides without charge.
Initial Subscription, for each Solution, means the period beginning on the date you obtain the Solution and continuing for the term specified by the Applicable Conditions.
Mobile App Store means an online store that currently or in the future offers Mobile Software, including through the Device itself.
Mobile Software means a Solution available to you on a Mobile Device platform, e.g., Android, iOS, and Windows Phone.
Personally Identifiable Information means information that can be used to uniquely identify, contact, or locate a single individual or can be used with other sources to uniquely identify a single individual including, as applicable under applicable law, personal data (as the term is used by the EU Data Protection Directive 95/46/EC).
Service means a Solution comprising services delivered online or by telephone.
Software means a Solution intended to be installed on a Device, and shall include any Updates.
Solution has the meaning set forth in the preamble
Subscription Period, with respect to a Solution, means the Initial Subscription together with all Extension Periods.
Technical Specifications means the technical documentation applicable to the relevant Solution, available at http://www.PasswordBoss.com/support as updated from time to time.
Third Party Materials means software, services, websites, offers and promotions or products provided by any third party and governed by Third Party Terms and Conditions.
Update means content or code PasswordBoss deploys to update a Solution including but not limited to new releases or versions of a Solution, bug fixes, or any other available update provided by PasswordBoss from time to time in connection with a Solution.
US Government means the federal government of the United States of America.
2. Ownership Rights
Each Solution is protected by international copyright laws, treaties and other laws. PasswordBoss and its licensors own and retain all right, title and interest in and to a Solution, including all copyrights, patents, trade secret rights, trademarks and other intellectual property rights. This Agreement does not transfer to you any title to or in a Solution. You do not acquire any rights to a Solution except as specified in Sections 3 and 8, below.
3. License Grant
3.1. Grant of License. PasswordBoss, subject to the terms and conditions of this Agreement, hereby grants you a non-exclusive and non-transferable license to use each Solution you purchase or otherwise properly acquire, in each case during the applicable Subscription Period for Authorized Purposes in accordance with the Applicable Conditions and Technical Specifications. The Subscription Period for Free Solutions continues indefinitely, without the need for extensions, until you or PasswordBoss terminates it in accordance with this Agreement.
3.2.1. General. You will not, and will not permit any third party to, (i) use any license or other authorization number supplied by PasswordBoss in connection with any Solution on more than the number of Devices specified by the Applicable Conditions, (ii) disclose any license or authorization number to any party other than PasswordBoss or PasswordBoss designated representatives, (iii) except as expressly authorized by law, (A) reverse engineer, disassemble, decompile, translate, reconstruct, transform or extract any Solution or any portion of a Solution (including without limitation any related field detection routines), or (B) change, modify or otherwise alter any Solution, (iv) publish, resell, distribute, broadcast, transmit, communicate, transfer, pledge, rent, share or sublicense any Solution, (v) grant any third party access to or use of any Solution on a service bureau, timesharing, subscription service or application service provider or other similar basis, (vi) test or benchmark, or disclose or publish testing or benchmark results, for any PasswordBoss Solution without PasswordBoss’ prior written consent, or (vii) defeat or circumvent, attempt to defeat or circumvent, or authorize or assist any third party in defeating or circumventing controls on the installation or use of copies of any Solution.
3.2.2. Software. In addition to the limitations established by Section 3.2.1, you will not (i) copy the Software for any purpose other than, as reasonably necessary to use the same as contemplated by this Agreement, and to preserve 1 uninstalled/off-line copy for disaster recovery purposes; (ii) install the Software on any operating system not supported by PasswordBoss as reflected in the Technical Specifications, or (iii) remove any copyright, trademark or other proprietary notices from the Software.
3.3. Updates. End users with unexpired, paid subscriptions will receive technical support in accordance with our current standard-support offerings, policies, and procedures as described on our website. Our standard-support offerings, policies, and procedures may change from time to time at our sole discretion and may vary by country. Any obligation we may have to support the previous version of a Solution ends when an upgrade, modified or later version, or other update to the Solution (“Update”) becomes available. For your convenience and to ensure that a Solution on your devices includes new features that we develop, by agreeing to this Agreement you give us permission to install Updates on your devices automatically when available, to the extent that it is possible for us to run such background installations. Any Updates or end-user technical support provided for Free Solutions that may be provided are provided at our sole discretion and may be discontinued at any time.
4. SUBSCRIPTION EXTENSIONS, TERMINATION.
To the extent you purchased your license directly from PasswordBoss under a signed, written agreement or from a PasswordBoss business partner you are paying directly for your Solution, this provision may not apply to you. Please refer to your written agreement for subscription periods and renewals information.
4.1. Subscription Extensions. At the end of any Subscription Period, your subscription may extend for successive time periods (each, an “Extension Period”) in accordance with this Section 4.1.
4.1.1. Automatic Extensions. If, under the Applicable Conditions for a given Solution, the Subscription Period automatically extends for an additional month, year or a similar consecutive time period, PasswordBoss may provide you with a notice that includes instructions on how to cancel your subscription at the end of the current Subscription Period and how to request a refund for cancellation requests within 30 days of the start of a new Subscription Period. You may cancel your subscription at the end of the Subscription Period by following the instructions in the notice. You may also cancel your subscription during the Subscription Period at any time by visiting https://portal.passwordboss.com. Cancelling your subscription will stop recurring fees going forward, but will not retroactively refund current payments, and you will retain access to your paid-for Solutions until the end of the then-current Subscription Period. If you do not cancel the subscription, PasswordBoss will charge your credit card or debit card within a reasonable time prior to the end of the then-current Subscription Period for the then-current extension fee (which may be higher than the price you initially paid) and, on receipt of payment, will extend the Subscription Period for the applicable Extension Period.
4.1.2. Manual Extensions. If, under the Applicable Conditions, the Subscription Period does not automatically extend, PasswordBoss may (but is not required to) notify you prior to the conclusion of the Subscription Period that your Subscription Period is due to expire, and may offer you the opportunity to extend the Subscription Period at PasswordBoss‘ then-current price (which may be higher than the price you initially paid). You may accept the offer by following the instructions set forth in the notice, in which case the Subscription Period will extend for the period you select.
4.2. Refunds. PasswordBoss for most Solutions offers a 30-day money-back guarantee. If you have paid for an eligible product within the preceding 30 days, you may obtain a refund by following the instructions in this section.
4.3. For Mobile Solutions. The quickest way to obtain a refund on a Mobile Solution is to follow the process established by the Mobile App Store from which you purchased the Solution. If the Mobile App Store does not honor your refund request, but you are otherwise within the 30 day window from initial purchase, you may be able to return your Mobile Solution for a refund of all amounts paid (other than for in-app purchases or subscriptions) by following the instructions at https://www.passwordboss.com/billing.
4.4. Other Solutions. Unless otherwise provided in this Agreement, you may be able to return any Solution other than Mobile Solutions that you have purchased by following the instructions at https://www.passwordboss.com/billing.
4.5. Payment Information. In an effort to ensure your use of a Solution is not interrupted, PasswordBoss may participate in recurring billing programs or account updated services. If your Subscription Period automatically extends and PasswordBoss is unable to charge the credit card or debit card PasswordBoss has on file for you, PasswordBoss at its option may obtain an updated card number, expiration date or other updated payment information from your bank or another source, or your card issuer may automatically charge your card without notifying PasswordBoss or you.
4.6. Termination. PasswordBoss, in addition to such other rights as may be available at law, in equity or otherwise, may terminate your license to any or all Solutions without liability (i) for convenience on five (5) days’ prior notice, provided that PasswordBoss, in its sole discretion, shall for paid Solutions, either (a) refund to you the fees you paid to PasswordBoss in respect of the unexpired portion of the applicable Subscription Period, pro-rated over the applicable Subscription Period, or (b) grant a license for a substantially similar product for the remainder of the Subscription Period, or (ii) for cause at any time without notice if you commit a breach of this Agreement. For the avoidance of doubt, for Free Solutions and Beta Solutions, PasswordBoss shall have no further obligation to you beyond providing five (5) days’ prior notice to terminate for convenience in accordance with this Section, and shall have no obligation to provide notice in the case of a termination for your breach of this Agreement.
4.7. Effect of Termination. On the expiration of the applicable Subscription Period for any relevant Solution or termination of the Subscription Period for any relevant Solution or this Agreement, you shall cease using the relevant Solutions, PasswordBoss may cease making Updates available to you, and the relevant Solution may cease functioning. Sections 1, 2, 7, 10, 11, 12, 13, 14 and 15 will survive the expiration or termination of this Agreement.
5. FREE SOLUTIONS
5.1. Free, Trial, Evaluation, Pre-Release and Beta Products: If the Solution that you download or otherwise receive is a Free Solution, then this section of the Agreement shall also apply. To the extent that any provision in this section is in conflict with any other term or condition in this Agreement, this section shall supersede such other term(s) and condition(s) with respect to such Free Solutions, but only to the extent necessary to resolve the conflict. All Free Solutions are provided as is, without any warranty, indemnity, maintenance or support, express or implied, subject to any statutory rights that cannot be excluded or limited by law. You acknowledge that Free Solutions may contain bugs, errors and other problems that could cause system or other failures and data loss. You acknowledge that we have not promised or guaranteed to you that Free Solutions will be announced or made available to anyone in the future, that we have no express or implied obligation to you to announce or introduce Free Solutions, and that we are not obligated to introduce a product similar to or compatible with Free Solutions or any updates to any Free Solution. Accordingly, you acknowledge that any use of any Free Solution is entirely at your own risk.
You are responsible for the security of your passwords and for keeping your account secure. You should keep your master password for your account secure because without the master password you may lose access to your data. Each Solution allows you to share items stored within the Solution with others. You are responsible for choosing to share any items and whom to share them with. You are solely responsible and liable for any activity that occurs under your account, including by anyone who uses your account, or any shared items. If there is any unauthorized use or access to your account, you must let us know immediately. We are not responsible for any loss caused by unauthorized use of or access to your account; however, you may be liable for any losses we or others suffer because of the unauthorized use. WE DO NOT HAVE ACCESS TO MASTER PASSWORDS AND CANNOT RECOVER YOUR ENCRYPTED DATA IF YOU FORGET THE MASTER PASSWORD. We offer both free and paid versions of the Solutions, and the free versions limit certain features that you can access. If you have downloaded a paid or Premium version of a Solution at no cost during a promotion, then when the promotional period ends you will not have access to the paid features.
7. USER COMMENTS
PasswordBoss welcomes your comments concerning Solutions, including notice that you have experienced a failure, error or other malfunction, and suggestions for additional or different features and functions. Please send us your comments and suggestions using the web form located at http://passwordboss.com/support. PasswordBoss accepts no obligation to respond or act on any such comments or suggestions and this invitation to comment does not constitute any admission of liability or product failure of a Solution, but you grant PasswordBoss a perpetual, irrevocable, transferrable, sublicensable, fully paid-up, royalty-free, worldwide right and license under your intellectual property rights (if any) to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), modify, display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise exploit in any manner whatsoever your comments and suggestions in any Solution and other products and services.
8. BINDING ARBITRATION AND CLASS ACTION WAIVER
8.1. Agreement to Arbitrate Disputes: Any claim, dispute or controversy (“Claim”) by either you or us against the other arising from, relating to or in any way concerning the Agreement, any Solution, or any products, or services you receive from us (or from any advertising for any such products or services) shall, at the demand of either party, be resolved by confidential binding arbitration. This agreement to arbitrate also includes claims relating to the enforceability or interpretation of any of these arbitration provisions. However, we will not demand arbitration pursuant to this Agreement in connection with any individual claim that you properly file and pursue in a small-claims court of your state or municipality, so long as the claim is pending only in that court and the claim is on an individual (non-class, non-representative) basis.
This agreement to arbitrate includes all controversies and claims of any kind, regardless of the type of claim or legal theory or remedy (damages, injunctive relief, or declaratory relief). The disputes subject to this arbitration agreement include not only claims by you, but also made on your behalf or connected with you, such as an employee, representative, agent, predecessor, successor, heir, assignee, or trustee in bankruptcy. Disputes subject to this arbitration agreement include not only claims that relate directly to us, but also to our parent, affiliates, successors, assignees, employees, and agents. This agreement to arbitrate includes claims asserted as part of a class action, private attorney general or other representative action, it being expressly understood and agreed to that the arbitration of such claims must proceed on an individual (non-class, non-representative) basis and the arbitrator may award relief only on an individual (non-class and non-representative) basis. YOU AND WE AGREE THAT NO CLASS ACTION, PRIVATE ATTORNEY GENERAL OR OTHER REPRESENTATIVE CLAIMS MAY BE PURSUED IN ARBITRATION, NOR MAY SUCH ACTION BE PURSUED IN COURT, IF EITHER YOU OR WE ELECT ARBITRATION, BY ACCEPTING THIS ARBITRATION AGREEMENT, YOU AGREE TO WAIVE THE RIGHT TO INITIATE OR PARTICIPATE IN A CLASS ACTION, REPRESENTATIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR CONSOLIDATED ARBITRATION IN ANY MATTER ENCOMPASSED BY THIS ARBITRATION PROVISION.
8.2. Notice of Dispute: If either of us intends to seek arbitration, the party seeking arbitration must first notify the other party of the dispute in writing at least 30 days in advance of initiating arbitration. Notice should be sent to PasswordBoss, LLC, 2751 Hennepin Ave South #252, Minneapolis, MN 55408, Attention: Legal Department. The notice must include your name, address, and contact information, the facts giving rise to the dispute, and the relief requested. You and PasswordBoss will attempt to resolve any dispute through informal negotiation within 60 days from the date of the Notice of Dispute is sent. After 60 days, you or PasswordBoss may commence arbitration.
8.3. Administration of Arbitration: If you and PasswordBoss do not resolve any dispute by informal negotiation or in small claims court, any claim, dispute, or controversy will be conducted exclusively by binding arbitration governed by the Federal Arbitration Act (“FAA”), and not state law. YOU ARE GIVING UP THE RIGHT TO LITIGATE (OR PARTICIPATE IN AS A PARTY OR CLASS MEMBER) ALL DISPUTES IN COURT BEFORE A JUDGE OR JURY. Instead, all disputes will be resolved on an individual basis before a single, neutral arbitrator and the proceeding shall be confidential. The arbitrator will be either a lawyer admitted to practice law in his or her jurisdiction and with at least ten years’ experience or a retired or former judge selected in accordance with the rules of the AAA. The arbitrator is bound by the terms of this Agreement, and the arbitration shall be governed by the Commercial Arbitration Rules and Supplementary Procedures for Consumer Related Disputes of the AAA, as modified by this Agreement (the “Arbitration Rules”). For more information, see adr.org or call 1-800-778-7879.
Except with respect to any claims or counterclaims seeking less than $25,000, the arbitrator shall issue a reasoned, written decision sufficient to explain the essential findings and conclusions on which the award is based. All arbitration proceedings shall be conducted in English, and the United States FAA shall apply to the Agreement and the binding arbitration. The award shall be confidential and only disclosed as is necessary to obtain judgment or as otherwise required by law.
Where authorized by applicable law, the arbitrator’s award may include attorneys’ fees and other expenses. The arbitration award shall determine the rights and obligations between the named parties only, and only in respect of the claims in arbitration, and shall not have any bearing on the rights and obligations of any other dispute.
8.4. Costs: The party initiating the arbitration shall pay the initial filing fee. If you file the arbitration and an award is rendered in your favor, PasswordBoss will reimburse you for your filing fee. If there is a hearing, we will pay the fees and costs for the first day of that hearing. All other fees and costs will be allocated in accordance with the arbitration rules. However, we will advance or reimburse filing and other fees if the arbitrator rules that you cannot afford to pay them or if you ask us and we determine there is a good reason for doing so. Each party shall bear the expense of their respective attorneys, experts, and witnesses and other expenses, regardless of who prevails, but a party may recover any or all expenses from another party if the arbitrator, applying applicable law, so determines.
8.5. Right to Resort to Provisional Remedies Preserved: Nothing herein shall be deemed to limit or constrain our right to resort to self-help remedies or to comply with legal process, or to obtain provisional remedies such as injunctive relief, attachment, or garnishment by a court having appropriate jurisdiction; provided, however, that you or we may elect to arbitrate any dispute related to such provisional remedies.
8.6. Conflicting Terms: In the event of a conflict between the Arbitration Rules and this arbitration agreement, this arbitration agreement shall govern.
If any portion of this arbitration agreement is deemed invalid or unenforceable, it shall not invalidate the other provisions of the arbitration agreement; provided, however, that (a) if the prohibition on classwide arbitration is deemed invalid, then this entire arbitration agreement shall be null and void; and (b) if the prohibition on arbitration of representative claims brought in a private attorney general capacity is deemed invalid, then the arbitration agreement shall be null and void as to such claims only. This arbitration agreement shall survive the termination or cancellation of this Agreement. In the event of a conflict between this arbitration agreement and any other applicable arbitration provision, this arbitration agreement shall control.
8.7. WAIVER OF JURY TRIAL: IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN THROUGH ARBITRATION, YOU AND PASSWORDBOSS AGREE THAT THERE WILL NOT BE A JURY TRIAL. YOU AND PASSWORDBOSS UNCONDITIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY DISPUTE THAT IN ANY WAY RELATES TO OR ARISES OUT OF THE AGREEMENT OR FROM ANY EQUIPMENT, PRODUCTS AND SERVICES YOU RECEIVE FROM US (OR FROM ANY ADVERTISING FOR ANY SUCH PRODUCTS OR SERVICES). IN THE EVENT OF LITIGATION, THIS PARAGRAPH MAY BE FILED TO SHOW A WRITTEN CONSENT TO A TRIAL BY THE COURT.
9.1. General. Except as provided by Section 9.2, PasswordBoss represents with respect to each Solution that, on delivery of the Solution and for a period of thirty (30) days thereafter (i) the medium (if any) on which the Solution is delivered will be free of material defects, and (ii) subject to Section 9.3, the Solution will conform to the description, if any, set forth in the Applicable Conditions and/or the Technical Specifications. The foregoing warranty applies only to the Solution as originally delivered, and does not apply to Updates or defects caused by the combination, operation or use of the Solution with other software, hardware or other materials not provided by PasswordBoss, or by Devices, other software, or other materials that do not conform to PasswordBoss requirements set forth in the Technical Specifications. Your sole and exclusive remedy for breach of the warranty in this Section 9.1 is replacement of the defective media or Solution or, at PasswordBoss’ option, return of the Solution for a full refund. In order to exercise your rights under this Section 9.1, you must uninstall and destroy all copies of the Solution you may have made (including all archival copies), and follow the instructions at http://www.PasswordBoss.com/billing.
9.2. Free Solutions and Beta Solutions. THE PROVISIONS OF THIS SECTION 9.2 APPLY IN PLACE OF SECTION 9.1 WITH RESPECT TO FREE SOLUTIONS AND BETA SOLUTIONS. ALL PASSWORDBOSS FREE SOLUTIONS AND BETA SOLUTIONS ARE PROVIDED ON AN “AS IS”, “WITH ALL FAULTS”, AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTY OF ANY KIND AND WITHOUT SUPPORT OR OTHER SERVICES BY PASSWORDBOSS.
9.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED BY SECTION 9.1 OF THIS AGREEMENT, PASSWORDBOSS PROVIDES EACH SOLUTION ON AN “AS IS,” “WITH ALL FAULTS,” AND “AS AVAILABLE” BASIS, AND PASSWORDBOSS AND ITS AFFILIATES, AGENTS, LICENSORS, REPRESENTATIVES, SUPPLIERS, DISTRIBUTORS, RESELLERS, WIRELESS CARRIERS OVER WHOSE NETWORK THE SOLUTION IS PROVIDED, OR OTHER BUSINESS PARTNERS AND EACH OF THEIR RESPECTIVE AFFILIATES, REPRESENTATIVES, VENDORS, AGENTS AND SUPPLIERS DISCLAIM ALL OTHER WARRANTIES AND REPRESENTATIONS WITH RESPECT TO THE SOLUTION, MEDIA AND ANY OTHER SUBJECT MATTER OF THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED, WHETHER GIVEN BY ANY THIRD PARTY LICENSORS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, ANY IMPLIED WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTY OR CONDITION OF NONINFRINGEMENT. PASSWORDBOSS DOES NOT WARRANT THAT THE OPERATION OF THE SOLUTION WILL BE UNINTERRUPTED OR ERROR FREE, THAT THE SOLUTION WILL WORK PROPERLY ON ANY GIVEN DEVICE OR WITH ANY PARTICULAR CONFIGURATION OF HARDWARE AND/OR SOFTWARE, OR THAT THE SOLUTION WILL PROVIDE COMPLETE SECURITY OF DATA OR INFORMATION STORED IN THE SOLUTION OR CONTENT STORED OR TRANSMITTED VIA THE INTERNET. Some jurisdictions do not allow limitations on certain warranties, so the above limitations may not apply to you. You may have other rights that vary from jurisdiction to jurisdiction.
9.4. Hazardous Environments. Solutions are not designed or licensed for use in hazardous environments, including without limitation operation of nuclear facilities, aircraft navigation systems, aircraft communication systems, air traffic control, life support or weapons systems and any other environment in which bodily injury or death could result from failure of or inability to use any Solution. Without limiting the provisions of Sections 9.2 and 9.3 of this Agreement, PasswordBoss and its licensors hereby disclaim any express or implied warranties of fitness for such purposes or uses.
10. LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PASSWORDBOSS OR ITS AFFILIATES, AGENTS, LICENSORS, REPRESENTATIVES, SUPPLIERS, DISTRIBUTORS, RESELLERS, WIRELESS CARRIERS OVER WHOSE NETWORK THE SOLUTION IS PROVIDED OR OTHER BUSINESS PARTNERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES WHATSOEVER, WITHOUT REGARD TO CAUSE OR THEORY OF LIABILITY, OR ANY DAMAGES (WHETHER DIRECT OR INDIRECT) INCURRED FOR LOSS OF BUSINESS, PROFITS OR REVENUE, LOSS OF PRIVACY, LOSS OF USE OF ANY DEVICE OR SOLUTION INCLUDING THE SOLUTION, COSTS OF PROCURING SUBSTITUTE OR REPLACEMENT GOODS AND SERVICES, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR OTHER PECUNIARY LOSS ARISING OUT OF THIS AGREEMENT OR THE SOLUTION PROVIDED HEREUNDER, EVEN IF PASSWORDBOSS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PASSWORDBOSS WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR ANY CORRUPTION, ERASURE, THEFT, DESTRUCTION, ALTERATION, INADVERTENT DISCLOSURE OR LOSS OF DATA, INFORMATION OR CONTENT TRANSMITTED, RECEIVED OR STORED BY OR IN CONNECTION WITH A SOLUTION REGARDLESS OF THE CAUSE. IN NO EVENT SHALL PASSWORDBOSS’S LIABILITY RELATED TO ANY SOLUTION EXCEED THE LESSER OF (I) THE FEES YOU ACTUALLY PAID OR ARE REQUIRED TO PAY FOR THE SOLUTION, AND (II) THE PASSWORDBOSS SUGGESTED RETAIL PRICE FOR THE SOLUTION AS OF THE DATE YOU RECEIVED IT (OR, WITH RESPECT TO A FREE SOLUTION OR BETA SOLUTION, US$5.00 (US$1.00 FOR FREE AND BETA MOBILE SOFTWARE). THE FOREGOING LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
YOU WILL INDEMNIFY, DEFEND AND HOLD HARMLESS PASSWORDBOSS, ITS AFFILIATES, AGENTS, LICENSORS, REPRESENTATIVES, SUPPLIERS, DISTRIBUTORS, RESELLERS AND OTHER BUSINESS PARTNERS, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND REPRESENTATIVES FROM AND AGAINST ALL LOSSES, EXPENSES, DAMAGES AND COSTS, INCLUDING REASONABLE ATTORNEYS’ FEES, RESULTING FROM YOUR USE OF THE SOLUTION OR ANY VIOLATION OF THIS AGREEMENT BY YOU, INCLUDING BUT NOT LIMITED TO ANY BREACH OR ALLEGED BREACH OF ANY OF YOUR REPRESENTATIONS, WARRANTIES, OBLIGATIONS OR UNDERTAKINGS HEREUNDER. PASSWORDBOSS RESERVES THE RIGHT TO ASSUME, AT ITS SOLE EXPENSE, THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER SUBJECT TO INDEMNIFICATION BY YOU, IN WHICH EVENT YOU WILL FULLY COOPERATE WITH PASSWORDBOSS IN ASSERTING ANY AVAILABLE DEFENSES.
12. PRIVACY AND SECURITY.
13. USAGE MONITORING/COMPLIANCE.
PASSWORDBOSS MAY MONITOR YOUR USE OF A SOLUTION TO CONFIRM THAT IT COMPLIES WITH THE TERMS OF THIS AGREEMENT. SHOULD PASSWORDBOSS DETERMINE THAT YOU ARE IN BREACH OF THIS AGREEMENT, PASSWORDBOSS, IN ADDITION TO SUCH OTHER RIGHTS THAT MAY BE AVAILABLE AT LAW, EQUITY OR OTHERWISE, SHALL BE ENTITLED TO EXERCISE ITS RIGHTS UNDER SECTIONS 4 AND 11 OF THIS AGREEMENT.
14.1. Notice. PASSWORDBOSS may at any time deliver any notice to you via electronic mail, pop-up window, dialog box or other means, even though in some cases you may not receive the notice unless and until you launch a Solution. Any such notice will be deemed delivered on the date PasswordBoss first makes it available through a Solution, irrespective of when you actually receive it.
14.2. Choice of Law. The construction, validity and performance of this Agreement and all non-contractual obligations arising from or connected with this Agreement shall be governed by the laws of the State of Minnesota, without regard to conflict of law principles. Both Parties agree to submit to the exclusive jurisdiction of either the state or federal courts located in Hennepin County, Minnesota, for purposes of enforcing the terms of this Agreement and neither Party shall bring any action in any other court.
14.3. Interpretation. The headings in this Agreement do not affect its interpretation. The use of any gender includes all genders. The singular includes the plural and vice-versa. Where a word or phrase is defined, its other grammatical forms have a corresponding meaning.
14.4. Severability. Should any provisions of this Agreement be deemed illegal, invalid or unenforceable under any applicable laws and regulations, all other provisions of this Agreement shall remain in full force and effect.
14.5. Force Majeure. PasswordBoss shall be not liable for any failure or delay in performance due in whole or in part to any cause beyond its reasonable control, including but not limited to utility or transmission failures, failure of phone lines or phone equipment, power failure, strikes or other labor disturbances (including without limitation a strike or other labor disturbance arising in respect of PasswordBoss and its Affiliates, agents, licensors, representatives, suppliers, distributors, resellers and other business partners ), acts of war or terror, floods, sabotage, fire, natural or other disasters or Acts of God.
14.6. Waiver. The failure of either party to insist on the strict performance of any of the terms, conditions and provisions of this Agreement shall not be construed as a waiver or relinquishment of future compliance with the Agreement, and the terms, conditions and provisions of this Agreement shall remain in full force and effect. No waiver of any term or condition of this Agreement on the part of either party shall be effective for any purpose whatsoever unless such waiver is in writing and signed by such party. The waiver by either party of a breach of any provision of this Agreement by the other party shall not be construed as a continuing waiver of such breach or as a waiver of other breaches of the same or of other provisions of this Agreement.
14.7. Assignment. You may not assign your rights or obligations under this Agreement without the prior written consent of PasswordBoss. PasswordBoss may assign this Agreement at any time in its sole discretion without any prior written consent by you.
14.8. Construction. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sales of Goods, the application of which is expressly excluded. In the event that an ambiguity or question of intent or interpretation arises, in any judicial proceeding or otherwise, the terms of this Agreement shall be construed as having been drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Agreement.
14.9. U.S. Government License. Any Solution provided to the U.S. Government is provided with the commercial license rights and restrictions described elsewhere herein. PasswordBoss reserves all unpublished rights under the United States copyright laws.
14.11. Export Controls. You must comply with all applicable U.S. and international laws governing export and re-export of the Solutions, including the U.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. Without derogating from the generality of the foregoing, (i) you represent that you are not a member of any of the denied person list, unverified list, entity list, specially designated nationals list, debarred list or any other lists published by the U.S. Government, (ii) you shall not use, export or re-export the Software to territories, destinations, companies or individuals in violation of U.S. and E.U. embargos or trade sanctions, including without limitation, in the following countries: Cuba, Iran, North Korea, Sudan and Syria.
14.12. No Third Party Beneficiaries. This Agreement is intended solely for the benefit of you and PasswordBoss and/or its Affiliates, and their respective agents, licensors, representatives, suppliers, distributors, resellers and other business partners. Other than as provided in Section 15.1.3(b)(vi), no person not a party to this Agreement may bring a cause of action pursuant to this Agreement as a third party beneficiary hereof.
14.13. Language. This Agreement was originally prepared in the English language. Although PasswordBoss may provide one or more translations for your convenience, the English version will control in the case of any conflict or discrepancy.
14.14. Internet connection. Certain Solutions may require an active and stable connection to the Internet in order to function. It is therefore your responsibility to ensure that you have at all times an active and stable Internet connection.
14.15. Product names. PasswordBoss reserves the right to change the name of its Solutions in its sole discretion from time to time.
14.16. Contact Information. PasswordBoss may be contacted in accordance with the instructions posted at https://www.PasswordBoss.com/support.
15. Special Terms
The following Special Terms apply to certain Solutions. In the event of a conflict between these Special Terms and the remainder of the Agreement, these Special Terms will govern with respect to the applicable Solutions.
15.1. Mobile Solution.
15.1.1. General. This Agreement will apply in lieu of any end user license or other terms made available to you by a Mobile App Store.
15.1.2. Solutions Downloaded from Google Play.
(a) Google Play Store. The Google Play Store means the Mobile App Store available through a Device and at http://play.google.com (“Google Play Store”).
(b) License. For the avoidance of doubt, the license granted in Section 3.1 of the Agreement is in lieu of any rights to use a Solution that would otherwise be granted by the default terms for applications downloaded from the Google Play Store.
(i) For App Purchases from the Google Play Store. You may automatically refund a purchase of a Solution purchased through the Google Play Store the first time you purchase it for up to 15 minutes after such purchase.
(ii) For In-App Purchases. You may not return or refund any in-app purchases from a Mobile Solution. For subscriptions purchased in-app, you may cancel your subscription before it is extended and you will not be charged again. You will, however, retain access to the subscription content you purchased for the remainder of the final Subscription Period.
15.1.3. Solutions Downloaded from an Apple App Store. The following additional terms apply for any Solution acquired through the iTunes App Store (https://itunes.apple.com/us/genre/ios/id36?mt=8) and the Mac App Store (https://itunes.apple.com/us/genre/mac/id39?mt=12) (each, an “Apple App Store”):
(a) The licenses granted by Section 3.1 are limited to a non-transferable license to use the Solution on any iPhone, iPod Touch or other Apple-powered Device that you own or control and as permitted by the Usage Rules set forth in the Apple App Stores Terms of Service, available online athttp://www.apple.com/legal/internet-services/itunes/us/terms.html or through such sites and other means made available to you by Apple.
(b) PasswordBoss and you acknowledge and agree that:
(i) This Agreement is concluded solely between the parties, and not with Apple. Passwordboss, not Apple, is solely responsible for the Solutions and the content thereof.
(ii) Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Solution.
(iii) If the Solution fails to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Solution to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Solution, and that, as between you, PasswordBoss and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be PasswordBoss’ sole responsibility.
(iv) PasswordBoss, not Apple, is responsible for addressing any claims by you or any third party relating to the Solution or your possession and/or use of that Solution, including, but not limited to: (i) product liability claims; (ii) any claim that the Solution fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(v) In the event of any third party claim that the Solution or your possession and use of that Solution infringes that third party’s intellectual property rights, PasswordBoss, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
(vi) Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement and, on your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary.