Terms and Conditions

Last Updated: May/2020

This website implen-go.com and any mobile application (collectively, this “Site”) is owned by Implen U.S.A., Inc., dba Implen, Inc. (“We”, “Us” or “Implen U.S.A., Inc., dba Implen, Inc.”). We are providing you with access to this Site and our online store (together, our “Services”) subject to the following terms and conditions.

By browsing, accessing, using, registering for or purchasing merchandise on this Site or otherwise using our Services, you are agreeing to all of the following terms and conditions, including any policies referred to herein (collectively, these “Terms”). So, please read these Terms carefully. We reserve the right to change this Site and these Terms at any time. If you are unwilling to be bound by these Terms‚ you should not browse, access‚ use‚ register for or purchase merchandise from the Site.

These Terms and Conditions of Sale incorporate the End User License Agreement (EULA) that is attached hereto, which is a binding agreement required for use of the product. These are additional terms that apply to the software that is provided with the products and any software subsequently distributed by us or which is downloaded from our websites and our mobile apps (the “Software”).

In the event of a conflict between the terms of the EULA and these Terms and Conditions of sale, the EULA prevails to the extent of the conflict. The EULA can also be found posted on our website at EULA PDF. Please review it carefully. You represent and warrant that you are at least 18 years old or visiting this Site under the supervision of a parent or guardian.

Privacy Policy

Our Privacy Policy, which also governs your visit to Our Site, can be found at https://implen-go.com/privacy-policy/. Please review our Privacy Policy for information on how We collect, use and share information about our users.

Use of This Site

Subject to your compliance with these Terms‚ We grant you a limited‚ non-exclusive‚ nontransferable‚ non-sublicensable license to access and make personal‚ non-commercial use of this Site.

This license grant does not include:

(a) any resale or commercial use of this Site or content therein;

(b) the collection and use of any product listings or descriptions;

(d) use of any data mining‚ robots‚ or similar data gathering and extraction methods on this Site.

You may not use‚ frame or utilize framing techniques to enclose any of Our trademark‚ logo‚ content or other proprietary information (including the images found at this Site‚ the content of any text or the layout/design of any page or form contained on a page) without Our express written consent.

Further‚ you may not use any meta tags or any other “hidden text” utilizing Our name‚ trademark‚ or product name without Our express written consent. Any breach of these Terms shall result in the immediate revocation of the license granted in this paragraph without notice to you. You are granted a limited, revocable, and nonexclusive right to create a hyperlink to the homepage of this Site so long as the link does not portray Us or Our products or services in a false, misleading, derogatory, or otherwise offensive matter. This limited right may be revoked at any time. You may not use any of Our logos or

Account

In order to access some features of this Site‚ you may be required to register and We may assign to you, or you may be required to select, a password and user name or account identification. If you register‚ you agree to provide Us with accurate and complete registration information‚ and to inform us immediately of any updates or other changes to such information.

You are solely responsible for protecting the security and confidentiality of the password and identification assigned to you. You shall immediately notify Us of any unauthorized use of your password or identification or any other breach or threatened breach of this Site’s security. Each time you use a password or identification, you will be deemed to be authorized to access and use the Site in a manner consistent with these Terms, and We have no obligation to investigate the authorization or source of any such access or use of this Site.

YOU WILL BE SOLELY RESPONSIBLE FOR ALL ACCESS TO AND USE OF THIS SITE BY ANYONE USING THE PASSWORD AND IDENTIFICATION ORIGINALLY SELECTED BY, OR ASSIGNED TO, YOU WHETHER OR NOT SUCH ACCESS TO AND USE OF THIS SITE IS ACTUALLY AUTHORIZED BY YOU, INCLUDING WITHOUT LIMITATION, ALL COMMUNICATIONS AND TRANSMISSIONS AND ALL OBLIGATIONS (INCLUDING WITHOUT LIMITATION FINANCIAL OBLIGATIONS) INCURRED THROUGH SUCH ACCESS OR USE.

Electronic Communication

When you use this Site, or send emails to Us, you are communicating with Us electronically. You consent to receive communications from Us electronically. We will communicate with you by e-mail or by posting notices on this Site or through our other services. You agree that all agreements, notices, disclosures and other communication that We provide to you electronically satisfy any legal requirements that such communications be in writing

User Content

This Site may include features and functionality (“Interactive Features”) that allows users to create, post, transmit or store any content, such as text, music, sound, photos, video, graphics or code on the Sites (“User Content”). User Content is publicly-viewable and may include your profile information and any content you post pursuant to your profile, but it does not include your account information or information you submit in order to make a purchase. You agree that you are solely responsible for your User Content and for your use of Interactive Features, and that your use any Interactive Features at your own risk.

By using any Interactive Areas, you agree not to post, upload to, transmit, distribute, store, create or otherwise publish or send through the Sites any of the following:

User Content that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd,
suggestive, harassing, threatening, abusive, inflammatory, fraudulent or otherwise
objectionable;
User Content that would constitute, encourage or provide instructions for a criminal offense,
violate the rights of any party or that would otherwise create liability or violate any local,
state, national or international law;
User Content that displays, describes or encourages usage of any product We sell in a
manner that could be offensive, inappropriate or harmful to Us or any user or consumer;
User Content that may impinge upon or violate the publicity, privacy or data protection
rights of others, including pictures, videos, images or information about another individual
where you have not obtained such individual’s consent;
User Content that makes false or misleading statements, claims or depictions about a person,
company, product or service;
User Content that may infringe any patent, trademark, trade secret, copyright or other
intellectual or proprietary right of any party;
User Content that impersonates any person or entity or otherwise misrepresents your
affiliation with a person or entity; and
Viruses, malware of any kind, corrupted data or other harmful, disruptive or destructive files
or code.

Rights in User Content

Except as otherwise provided in these Terms, on this Site or in a separate agreement with Us, We
claim no ownership or control over any User Content.

However, by submitting or posting User
Content on this Site, you grant to Us a nonexclusive, royalty-free, worldwide, perpetual, irrevocable,
transferable, and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create
derivative works from, distribute, perform and display such User Content on this Site and on thirdparty sites and mobile applications and in all other media or formats, whether currently known or
hereafter developed, for any purpose and without any compensation to you.

You also grant users of
this Site the right to access your User Content in connection with their use of this Site.
By posting User Content to this Site, you represent and warrant that

(a) such User Content is nonconfidential;

(b) you own and control all of the rights, title and interest in and to the User Content
or you otherwise have all necessary rights to post and use such User Content to this Site and to grant
to Us the rights that you grant in these Terms;

(d) the User Content, and your use and posting thereof in connection
with this Site, do not and will not violate these Terms or any other of Our applicable terms,
guidelines or policies or any applicable law, rule or regulation.

Feedback

Separate and apart from User Content, you may have the ability to submit questions, comments suggestions, reviews, ideas, plans, designs, notes, proposals, drawings, original or creative materials and other information regarding this Site, Us and our products or services (collectively “Feedback”).

You agree that Feedback is non-confidential and shall become Our sole property. We shall own exclusive rights, including all intellectual property rights, in and to such Feedback and shall be entitled to the unrestricted use and dissemination of the Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.

Restrictions on Rights to Use

You agree you shall not (and you agree not to allow any other individual or entity using your password and identification to):

download‚ modify‚ reproduce‚ adapt‚ translate‚ reverse engineer‚ create derivative works based
upon‚ publicly display‚ sell‚ rent‚ license‚ or in any way commercially exploit any portion of this
Site‚ except and to the extent expressly permitted under these Terms;
remove any copyright‚ trademark or other proprietary rights notice contained in or on the Site;
use any robot‚ spider‚ site search/retrieval application‚ or other device to retrieve or index any
portion of this Site;
collect any information about other users (including usernames and/or email addresses) for any
purpose other than to solicit and/or share reviews with other users;
reformat or frame any portion of any Web pages that are part of this Site;
create user accounts by automated means or under false or fraudulent pretenses;
create or transmit to other users unsolicited electronic communications‚ such as “spam‚” or
otherwise interfere with other users’ enjoyment of the Site;
submit to this Site any content that falsely states or implies that such content is sponsored or
endorsed by us;
transmit or upload to this Site any item containing or embodying any virus‚ worm‚ defect‚
malware‚ Trojan horse‚ software bomb or other feature designed to damage or degrade in any
manner the performance of this Site‚ any other Web site‚ or any computer or other device or
system‚ or the enjoyment of this Site by any user;
use this Site to violate the security of or gain unauthorized access to any computer or computer
network or other device or system (including unauthorized attempts to discover passwords or
security encryption codes);
submit to this Site any content that is unlawful or facilitates‚ constitutes‚ promotes or
encourages illegal activity; or otherwise use the Site to transfer or store illegal material‚
including any material deemed threatening or obscene;
copy or store any User Content offered on this Site other than for your personal‚ noncommercial use;
take any action that imposes‚ or may impose‚ in our sole discretion‚ an unreasonable or
disproportionately large data or traffic load on this Site or the IT infrastructure used to operate
and make this Site available; or
use this Site and/ or any User Content‚ intentionally or unintentionally‚ to violate any
applicable local‚ state‚ federal or international law.

We have no obligation to monitor any user conduct on this Site, and We reserve the right and have
absolute discretion to monitor any user conduct on this Site at any time and for any reason without
notice.

Ownership

As between you and Us‚ this Site‚ including all photographs‚ images‚ text‚ graphics‚ icons‚ audio clips‚ software‚ source code and other aspects thereof (excluding User Content)‚ all improvements or modifications thereof‚ all derivative works based thereon‚ and the collection‚ arrangement‚ and assembly of this Site (collectively, the “Site Content”)‚ including all copyrights‚ trademarks‚ and other intellectual property or proprietary rights in the foregoing‚ are owned by Us or our licensors and protected by applicable copyright laws.

The use of any of Our trademarks or service marks without our express written consent is strictly prohibited. You may not use our trademarks or service marks in connection with any product or service in any way that is likely to cause confusion.

You may not use our trademarks or service marks in any manner that disparages or discredits us. You may not use any of our trademarks or service marks in meta tags without prior explicit consent.

Nothing in these Terms shall be deemed to grant to you or any other user any license or right in or to any of Our patents‚ copyrights‚ trademarks‚ trade secrets or other proprietary rights.

Purchases on this Site

You agree that all of your transactions with or through this Site may, at Our option, be conducted electronically from start to finish. If We decide to proceed non-electronically, those transactions will still be governed by the remainder of these Terms unless you enter into different terms provided by us. You are responsible to print or make an electronic a copy of these Terms and any other contract or disclosure that we are required to provide to you.

The risk of loss and title for items purchased by you on this Site pass to you upon our delivery of the items to the carrier pursuant to a shipment contract. We charge sales tax for merchandise ordered on this Site based on the applicable state sales tax rate of the location to which the order is being shipped. When We ship to you or per your directions to another person, you agree to pay the shipping and any handling charges shown on this Site when your order is placed.

We reserve the right to increase, decrease and add or eliminate charges from time to time and without prior notice, so you agree to check all charges before placing an order or signing up for a service. Any shipping or handling charges may or may not reflect actual costs. Only valid credit cards or other payment method acceptable to us may be used.

By submitting your order, you represent and warrant that you are authorized to use the designated card or method and authorize us to charge your order (including taxes, shipping, handling and any other amounts described on the Sites) to that card or other method.

If the card (or other method) cannot be verified, is invalid, or is not otherwise acceptable, your order may be suspended or cancelled automatically. All returns are governed by our Return Policy, which can be found at implen-go.com/returns.

We attempt to be as accurate as possible and eliminate errors on this Site; however, We do not warrant that any product, service, description, photograph, pricing or other information is accurate, complete, reliable, current or error-free.

In the event of an error, whether on this Site, in an order confirmation, in processing an order, delivering a product or service or otherwise, We reserve the right to correct such error and revise your order accordingly if necessary (including charging the correct price) or to cancel the order and refund any amount charged.

Your sole remedy in the event of such error is to cancel your order and obtain a refund. All items are subject to availability and We reserve the right to impose quantity limits on any order, to reject all or part of an order and to discontinue products or services without notice, even if you have already placed your order.

All prices are subject to change without notice. We reserve the right to refuse or cancel any orders placed for products and/or services which the sale or use of such product and/or service in your state or jurisdiction is restricted or prohibited.

Links

This Site may contain links to other sites on the Internet that are owned and operated by third parties. You acknowledge that We are not responsible for the operation of or content located on or through any such site.

Termination

You may terminate the Terms at any time by closing your account, discontinuing your use of this Site and providing Us with a notice of termination. We reserve the right, without notice and in our sole discretion, to terminate your right to use this Site, or any portion of this Site, and to block or prevent your future access to and use of this Site or any portion of this Site.

Indemnification

To the fullest extent permitted by applicable law, you agree to defend, indemnify and hold harmless Us and our subsidiaries and affiliates, and our respective officers, directors, agents, partners, members, employees, independent contractors, service providers and consultants (“Our Related Parties”), from and against any claims, damages, costs, liabilities and expenses (collectively, “Claims”) arising out of or related to

(a) your access to and use or misuse of this Site;

(b) any User Content you post, upload, use, distribute, store or otherwise transmit on or through this Site;

(d) your violation of these Terms; and

(e) your violation of any rights of another. You agree to promptly notify Us of any third party Claims, cooperate with Us in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including but not limited to attorneys’ fees). You further agree that the We shall have the right to control of the defense or settlement of any third party Claims.

Disclaimers

Except as expressly provided, this Site, including all Site Content, and services provided on or in connection with this Site are provided on an “AS IS” and “WITH ALL FAULTS” basis without representations, warranties or conditions of any kind, either express or implied.

WE DISCLAIM ALL OTHER REPRESENTATIONS, WARRANTIES, CONDITIONS AND DUTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES, DUTIES OR CONDITIONS: (A) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, RESULTS, TITLE, AND NON-INFRINGEMENT; AND (B) CREATED BY TRADE USAGE, COURSE OF DEALING OR COURSE OF PERFORMANCE.

We does not represent or warrant that this Site is accurate, complete, reliable, current or error-free. We do not represent or warrant that this Site or our servers are free of viruses or other harmful components.

Exclusivity of Remedy; Limitation of Liability

Your sole and exclusive remedy, and Our sole and exclusive liability, for any breach of warranty shall be your right to return the product, or receive a refund for the service under Our applicable returns and exchanges policies.

IN NO EVENT SHALL THE WE OR OUR RELATED PARTIES, BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR LOSS OF BUSINESS, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, NOR SHALL OUR AND OUR RELATED PARTIES’ AGGREGATE LIABILITY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), OR OTHER THEORY, ARISING OUT OF OR RELATING TO THESE TERMS OR THE PURCHASE OR USE OF ANY PRODUCTS OR SERVICES PURCHASED THROUGH THIS SITE EXCEED THE PURCHASE PRICE OF THE PRODUCT OR SERVICE.

THE LIMITATIONS SET FORTH IN THIS PARAGRAPH WILL NOT LIMIT OR EXCLUDE OUR OR OUR RELATED PARTIES’ GROSS NEGLIGENCE, FRAUD, INTENTIONAL, WILLFUL, MALICIOUS OR RECKLESS MISCONDUCT.

Remedies

You agree that our remedy at law for any actual or threatened breach of these Terms would be inadequate and that we shall be entitled to specific performance or injunctive relief, or both, in addition to any damages that we may be legally entitled to recover, together with reasonable expenses of any form of dispute resolution, including, without limitation, attorneys’ fees.

No right or remedy of ours shall be exclusive of any other, whether at law or in equity, including without limitation damages injunctive relief, attorneys’ fees and expenses.

Modifications to Site

We reserve the right to modify or discontinue, temporarily or permanently, this Site or any features or portions thereof without prior notice.

Severability

If any these provisions shall be deemed invalid, void, or for any reason unenforceable, that condition shall be deemed several and shall not affect the validity and enforceability of any remaining provision.

No Third-Party Beneficiaries

These Terms are for the benefit of, and will be enforceable by, the parties only. These Terms are not intended to confer any right or benefit on any third party or to create any obligations or liability of a party to any such third party.

Miscellaneous

No agency‚ partnership‚ joint venture‚ or employment relationship is created as a result of these Terms‚ and you do not have any authority of any kind to bind Us in any respect whatsoever. We may provide you with notices‚ including those regarding changes to these Terms‚ by email‚ regular mail‚ or postings on this Site.

These Terms, which shall be deemed accepted by you upon your use of the Site‚ constitute the entire agreement among you and Us regarding use of this Site. Our failure to exercise or enforce any right or provision of these Terms shall not constitute a waiver of the enforcement of such right or provision. If any provision of these Terms is found to be unenforceable or invalid‚ that provision shall be limited or eliminated to the minimum extent necessary so that these Terms shall otherwise remain in full force and effect and enforceable.

These Terms are not assignable‚ transferable or sublicensable by you‚ except with our prior written consent. These Terms include and incorporate by reference Our Privacy Policy, which can be found at Privacy Policy, and any notices regarding the Site.

Questions

Questions regarding these Terms, Our Privacy Policy, or other policy related material can be directed to our support staff by emailing us at: administration@implen-go.com

End-User License Agreement (EULA)

IMPORTANT – THIS IS A LEGAL AGREEMENT BETWEEN YOU AND IMPLEN GMBH / IMPLEN, INC. AND ITS SUCCESSORS AND ASSIGNS (“LICENSOR”), AND STATES THE TERMS AND CONDITIONS THAT APPLY TO YOUR RIGHT TO USE THE SOFTWARE THAT IS PROVIDED TO OR DOWNLOADED BY YOU IN CONNECTION WITH THE IMPLEN® DEVICE (THE “DEVICE”), INCLUDING ANY EMBEDDED SOFTWARE, CLIENT‐SIDE SOFTWARE, APPS AND ALL PATCHES, UPDATES, UPGRADES AND NEW RELEASES THAT ARE PROVIDED TO YOU OR THAT YOU DOWNLOAD (INDIVIDUALLY AND COLLECTIVELY, THE “SOFTWARE”).

YOUR ACCESS, USE AND DOWNLOAD OF ANY OF THE SOFTWARE (INCLUDING YOUR USE OF THE SOFTWARE IN CONNECTION WITH THE USE OF THE DEVICE) IS CONDITIONED UPON AND SUBJECT TO YOUR ACCEPTANCE OF THE FOLLOWING TERMS AND CONDITIONS CONTAINED IN THIS EULA, AS THEY GOVERN YOUR USE OF THE SOFTWARE.

IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU DO NOT HAVE THE RIGHT TO USE THE SOFTWARE OR THE DEVICE. LICENSOR IS WILLING TO LICENSE THE USE OF THE SOFTWARE TO YOU ONLY IF YOU ACCEPT ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT. YOU WILL ACCEPT THIS EULA AND ITS TERMS AND CONDITIONS BY THE FIRST TO OCCUR OF USING THE DEVICE, DOWNLOADING THE SOFTWARE, OR PROVIDING PAYMENT FOR THE DEVICE UPON AN INVOICE OR OTHER DOCUMENT THAT EXPRESSLY REFERENCES THESE TERMS AND CONDITIONS.

License Grant

Conditioned on your continued compliance with the terms and conditions of this EULA and the payment of all applicable fees for the Devices, any related services and any related charges imposed by Licensor with respect to this EULA provides You with a personal, limited, non‐exclusive, non‐transferable, and non‐sublicenseable license to use the Software solely in connection with a Device that you have purchased from Licensor or a distributor or reseller authorized by the Licensor, for Your internal business purposes.

The Software can only be used in connection with a permitted use of the Device as expressly set forth in the documentation and instructions for the Device. When Licensor provides Software for You to download, you may copy such Software in connection with downloading and storing it, solely for use in connection with the Device. Licensor is not responsible for malfunctions, failures, inaccuracies or other issues that result from the download or installation of any Software on any personal computer, laptop, mobile device or other computing device, or from any misuse of the Software or the Device.

For Software downloaded from online mobile app stores, you must review and comply with any applicable terms and conditions posted by the applicable store operator, including any modifications posted by the app store operator.

You may transfer the Software in connection with a permitted sale or transfer by You of the Device that contains the Software, on the condition that You provide a copy of or prominent reference to this EULA to the transferee or purchaser.

For purposes of this Agreement, “You” means the company, entity or individual whose funds are used to pay for the Device and any of such company or entity’s employees who use the Software as part of using the Device, and any other authorized individual that downloads, installs, accesses, or otherwise uses the Software in connection with the Device. In accordance with the foregoing, You acknowledge and agree that You are solely responsible for any actions or omissions taken by any individual that downloads, installs, accesses, or otherwise uses the Software on your behalf or through your Device or systems.

At all times, You represent and warrant to conduct your activities with respect to the Software in accordance with this EULA. In addition, You agree to assume all responsibility for your use, and the results of your use, of the Software, including meeting any requirements of your contracts with third parties. You agree to be responsible for and to abide by all applicable laws, regulations, rules, and guidelines with respect to your use of the Software and any activities You conduct using the Software. You also acknowledge and agree that use of the Internet for downloading Software is solely at your own risk.

Restrictions

The foregoing license is limited. You may not:

(i) use, copy, store, reproduce, transmit, distribute, publish, post online, display, rent, lease, sell, modify, or commercially exploit the Software (or any part thereof) in any manner not expressly permitted by this Agreement, including, without limitation, for re‐sale or distribution or for use for the benefit of others in a service bureau arrangement,

(ii) reverse engineer, decompile, disassemble, translate, or create any derivative work of the Software (or any part thereof);

(iii) access, link to, seek to derive or use any source code from the Software (or any part thereof);

(iv) erase or remove any proprietary or intellectual property notice contained in or on the Software or provided with the Device or downloadable from Licensor’s site (or any part thereof);

(v) access or use the Software or its documentation to create or assist another to create a competing product or service, for an unlawful purpose, or in violation of any privacy policy, for email spam, with unlawful content, to distribute malware, or for collecting or scraping data from third parties without their express consent; or

(vi) use or permit use of the Software (or any part thereof) for or by any third party. You acknowledge and agree that exceeding the scope of the license herein shall be a material breach of this Agreement and subject to the termination provisions set forth herein.

No maintenance and support or other services of any type are required to be delivered by Licensor pursuant to this EULA.

Support

Licensor may periodically make available Software fixes, updates or new releases through automatic distribution and installation to Your and other users’ Devices. To the extent required under any applicable law, You consent to receive these automatic Software distributions. Devices not operating or connecting with current Software may not operate properly.

Proprietary Rights

This EULA does not provide a transfer or assignment of any rights or a sale of Software. Licensor (and its own applicable third party licensors) retains all ownership right, title and interest in and to the Software and all copies thereof, including its associated interfaces, programs, software, code, libraries and documentation. Except as expressly provided herein, Licensor does not grant any other express or implied right to You or any other person under any intellectual or proprietary rights.

Accordingly, unauthorized use of the Software may violate intellectual property or other proprietary rights laws as well as other domestic and international laws, regulations, and statutes, including, but not limited to, U.S. copyright, trade secret, patent, and trademark law.

Open Source

The Software may contain open source code licensed or made available to Licensor subject to open source and public licenses. You acknowledge and agree that You will not take or assist anyone to take any action that violates the terms of such open source and public licenses. The current listing of open source programs contained, in whole or in part, in Software, can be found at Open Source DF. Please become familiar with those terms.

Confidentiality

You acknowledge and agree that the Software and related documentation is confidential information of Licensor and contains trade secrets that derive value from not being publicly known to third parties.

You agree to treat the Software and such documentation with confidentiality and not to allow use for a purpose other than use of the Device or disclosure to anyone other than Your employees, collaborators and contractors who have a need‐to‐know for purposes of using the Device on your behalf or in connection with Your projects.

Government Restricted Rights

As applicable, the Software is provided to the United States of America and its or their respective instrumentalities, agencies, or offices, regardless of form (collectively, the “Government”) with RESTRICTED RIGHTS. All Licensor products and materials, including the Software, are commercial in nature and were not first produced in the performance of any Government contract.

Accordingly, the software and documentation available through the Software 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 licensed to 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 of this EULA.

Warranty Disclaimer

LICENSOR’S WARRANTY FOR THE DEVICE, IF ANY, IS STATED ON THE PURCHASE TERMS PROVIDED BY LICENSOR AND NOT IN THIS EULA.

YOU ACKNOWLEDGE AND AGREE THAT LICENSOR MAKES NO WARRANTIES OR REPRESENTATIONS TO YOU IN THIS EULA AND DISCLAIMS ALL WARRANTIES RELATING TO THIS SOFTWARE OR ITS OPERATION, WHETHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, SECURITY, NONINFRINGEMENT OF THIRD PARTY RIGHTS, OR AVAILABLE UNDER ANY STATE STATUTE GOVERNING SOFTWARE OR INFORMATION SERVICES.

LICENSOR DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE IS ERROR FREE OR WILL ALWAYS OPERATE UNINTERRUPTED.

Limitation of Liability

IN NO EVENT SHALL LICENSOR OR ITS OWN LICENSORS AND SUPPLIERS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF THE SOFTWARE OR ANY INFORMATION OR MATERIALS AVAILABLE THROUGH THE SOFTWARE, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.

IN ADDITION, LICENSOR ASSUMES NO RESPONSIBILITY OR LIABILITY FOR ANY CLAIMS THAT MAY RESULT DIRECTLY OR INDIRECTLY FROM THE RESULTS YOU ACHIEVE USING THE SOFTWARE OR WHICH RELATE TO THE STORAGE OF ANY DATA OR FOR THE DELIVERY, SECURITY, OR AVAILABILITY OF ANY DATA.

WITHOUT LIMITATION OF THE FOREGOING, TOTAL LIABILITY OF LICENSOR FOR ANY REASON WHATSOEVER RELATED TO THE SOFTWARE, THE USE OR INABILITY TO USE THE SOFTWARE, OR FOR ANY CLAIMS RELATING TO THIS EULA SHALL NOT EXCEED IN THE AGGREGATE US$5,000.

Severability

In the event any provision of this Agreement is found by an arbitrator or court of competent jurisdiction to be invalid, void, or unenforceable, You agree that the invalidity, voidness, or unenforceability shall affect neither the validity of this EULA nor the remaining provisions herein, and the provision in question shall be deemed to be replaced with a valid and enforceable provision most closely reflecting the intent and purpose of the original provision.

Governing Law

This Agreement has been made in and will be construed and enforced solely in accordance with the laws of the State of California, U.S.A., without application of conflicts of laws provisions. Exclusive venue shall be in the courts in California.

You also acknowledge and agree that any applicable state law implementation of the Uniform Computer Information Transactions Act (including any available remedies) shall not apply to this Agreement and is hereby disclaimed. Any claim You might have against Licensor with respect to the Software must be brought within one (1) year after the cause of action arises, or such claim or cause of action is barred.

Licensor Entitled to Injunctive Relief

You acknowledge that Licensor reserves the right, at any time and without notice, to monitor compliance with the terms and conditions of this EULA and to take appropriate steps to otherwise protect its rights in the Software by monitoring use of the Software and by incorporating security and management technology into the Software. You shall therefore not, nor shall You permit any third party to, disable, circumvent, or otherwise avoid any security device, mechanism, protocol, or procedure established by Licensor for use of or with the Software.

Without limiting any other remedy at law or equity, in the event of the unauthorized use of the Software or Your breach of any of the provisions set forth in this EULA, You agree that Licensor shall have the right to an immediate injunction against the unauthorized use of the Software or the continued breach of this EULA.

Term and Termination

Your right to use the Software terminates automatically if You do not accept these terms and conditions. Licensor also reserves the right at any time and on reasonable grounds, which shall include, without limitation, any reasonable belief of fraudulent or unlawful activity, any failure to pay any applicable fee, or any actions or omissions that violate any term or condition of this EULA, to terminate immediately this EULA with You for breach.

Termination or expiration of this Agreement will be effective immediately upon notice. In the event of termination, the license granted to You ends and You must cease using the Software and destroy or delete from your computer, laptop, work station, or network all copies of the Software (and any associated materials) in your possession.

Moreover, the provisions concerning proprietary rights, confidentiality, warranties and warranty disclaimer, limitation of liability, governing law, enforcement, termination, entire agreement, and notice terms will survive the termination or expiration of this Agreement for any reason.

Amendments and Software Updates

Licensor may promulgate additional or modified terms and conditions by providing You in writing or electronically a copy of such revised terms (or notice thereof). Licensor may also provide updates, upgrades and/or changes to any aspect of the Software at any time. You may elect by written notice to Licensor within five (5) days of the change notice or changed Software to terminate this EULA and Your use of the Software.

Your continued use of the Software following any such change to the Software or the EULA will be deemed acceptance of the change.

Entire Agreement

This EULA and the documentation, installation and use instructions provided to You by Licensor represent the entire agreement between You and Licensor with respect to the Software and supersedes all prior or contemporaneous communications and proposals, whether electronic, oral, or written between You and Licensor or any distributor or reseller with respect to the Software.