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HomeMy WebLinkAboutAGR-7232 - GRAYSHIFT LLC - END USER LICENSE TERMS TO ANNUAL GRAYKEY SOFTWARE USED TO UNLOCK iPHONES - FY 2021-22R-7a3a. GRAYSHIFT,LLC END USER LICENSE TERMS IMPORTANT: PLEASE READ THIS END USER LICENSE AGREEMENT CAREFULLY. DOWNLOADING, INSTALLING OR USING GRAYSHIFT-SUPPLIED SOFTWARE AS PART OF THE GRAYSHIFT PRODUCT (THE PRODUCT")CONSTITUTES ACCEPTANCE OF THIS AGREEMENT. THIS PRODUCT CONTAINS CERTAIN SOFTWARE("SOFTWARE")AND OTHER PROPRIETARY MATERIAL,THE USE OF WHICH IS SUBJECT TO THIS END USER SOFTWARE LICENSE AGREEMENT("AGREEMENT").IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NO,T CLICK "I AGREE" AND DO NOT USE THE SOFTWARE. YOUR CLICKING "I AGREE" OR USING THE PRODUCT OR SOFTWARE INDICATES THAT YOU ACCEPT THESE TERMS. IF YOU DO NOT AGREE WITH ALL TERMS,YOU MUST RETURN THE PRODUCT,ALL MANUALS AND DOCUMENTATION,AND PROOF OF PAYMENT AND DISCONTINUE USE OF THE SOFTWARE. WRITTEN APPROVAL IS NOT A PREREQUISITE TO THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT AND NO SOLICITATION OF ANY SUCH WRITTEN APPROVAL BY OR ON BEHALF OF GRAYSHIFT SHALL BE CONSTRUED AS AN INFERENCE TO THE CONTRARY.IF YOU HAVE ORDERED THIS PRODUCT,GRAYSHIFT'S ACCEPTANCE IS EXPRESSLYCONDITIONAL ON YOUR ASSENT TO THESE TERMS TO THE EXCLUSION OF ALL OTHER TERMS. Google Privacy Policy 1.ACCEPTANCE AND DELIVERY. Software will at https://www. le.policies/privac. be provided by electronic means. Acceptance of Software Acceptance") shall be automatic upon the successful 4.LICENSE RESTRICTIONS. Notwithstanding completion of Grayshift's standard installation procedures on anything to the contrary in this Agreement, Licensee will not the Product. or allow an Authorized User to): (a) modify any Product; (b) reverse compile, reverse assemble, reverse engineer or 2.LICENSE GRANT. Subject to the terms of this otherwise translate all or any portion of any Product;(c)pledge, Agreement and for the consideration specified in the Order rent, lease, share, distribute, sell or create derivative works of defined below),Grayshift,LLC("Grayshift")hereby grants to any Product; (d) use any Product on a time sharing, service you ("Licensee" or "You") a limited, revocable, bureau, application service provider (ASP), rental or other nontransferable, non-assignable, non-sublicensable, non- similar basis; (e) make copies of any Product, except as exclusive license to use and allow Authorized Users to use the provided for in the license grant above; (e) remove, alter or Soflware, in object code form, solely as such Software is deface (or attempt any of the foregoing) proprietary notices, embedded in proprietary equipment provided herewith labels or marks in any Product; (fl distribute any copy of any ProducY')and solely for purposes of accessing mobile devices Software to any third party,including without limitation selling Devices") in your possession or control. You may only use any Product in a secondhand market;(g)use any Software other the Product at the authorized physical locations (the than with Products provided by Grayshift; (h) use the Product Authorized Locations") specified in your online order (the other than at an Authorized Location; (i)deactivate, modify or . Order") or that you have otherwise registered with Grayshift impair the functioning of any disabling code in any Software; and you acknowledge and agree that in order for the Product to j) circumvent or disable Grayshift copyright protection function properly in online mode,you must be connected to the mechanisms or license management mechanisms; (k) use any Internet. When you are using the Product in offline mode,you Product in violation of any applicable Law or to support any do not need to be connected to the Internet. Grayshift may use illegal activity; or (1) use any Product to violate any rights of certain third-party monitoring tools to ensure that you are in any third party.Grayshift expressly reserves the right to seek all compliance with the foregoing restrictions, which such tools available legal and equitable remedies to prevent any of the may be subject to Third Pariy Components terms as further foregoing and to recover any lost profits, damages or costs described herein.For purposes of this Agreement,"Authorized resulting from any of the foregoing. Users"means collectively,employees,agents,or contractors of Licensee accessing or using the Product. 5.FEES. Licensee shall pay the license fees set forth in the relevant Purchase Order for the Software and Product. 3.THIRD PARTY COMPONENTS. The Licensee will be responsible for payment of any applicable Software makes use of or otherwise incorporates third party sales, use and other taxes and all applicable export and import components,including certain Google Maps features and fees,customs duties and similar charges(other than taxes based content.Use of Google Maps features and content is subject to on Grayshift's income), and any related penalties and interest the then-current versions of the: (1)Google Maps/Google for the grant of license rights hereunder, or the delivery of Earth Additional Terms of Service related services. Licensee will make all required payments to at https://maps.google.com/help/terms maps.html;and(2) Grayshift free and clear of, and without reduction for, any withholding taxes.Any portion of any amount payable Page 1 of 4 SWRS FINAL 1.7.2021 hereunder that is not paid when due will accrue interest at two SOFTWARE WILL BE FREE FROM BUGS OR THAT ITS percent (2%) per month or the maximum rate permitted by USE WILL BE UNINTERRUPTED OR THAT THE applicable law,whichever is less,from the due date until paid. PRODUCT, SOFTWARE OR WRITTEN MATERIALS WILL BE CORRECT, ACCURATE, OR RELIABLE. THIS 6.SUPPORT. Grayshift will provide support services DISCLAIMER OF WARRANTY CONSTITUTES AN including updates and upgrades)for the Software as specified ESSENTIAL PART OF THIS AGREEMENT. SHOULD THE in the Order and in accordance with the support terms located PRODUCT PROVE DEFECTIVE FOLLOWING LICENSE, at https:// r ayshift.com, LICENSEE (AND NOT GRAYSHIFT) ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING OR 7.TITLE. As between the parties, Grayshift and its PAIR, EXCEPT AS MAY OTHERWISE BE PROVIDED licensors retain all right, title, and interest, including, without BY A GRAYSHIFT RESELLER OR SUPPORT PROVIDER. limitation, all intellectual property rights to the Product. 11. CONFIDENTIALITY AND NON-DISCLOSURE Licensee understands that Grayshift may modify or discontinue OBLIGATIONS. Licensee, Licensees employees or agents offering the Product at any time. The Product is protected by Who require access in order to perform hereunder and all final . the copyright laws of the United States and international users of the Product(collectively, "Receiving Party") shall not copyright treaties. This Agreement does not give Licensee any disclose, use, sell, transmit, inform or make available to any rights not expressly granted herein. This Agreement does not entity, person or body any of the Confidential Information, as constitute a sale of the Product or any portion or copy of it.All defined below, nor shall it copy, photograph, or otherwise rights not granted are reserved for Grayshift. reproduce any Confidential Information, except as a necessary 8:LIMITATION OF LIABILITY. UNDER NO Part of performing its obligations hereunder, and shall take all LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, such actions as are reasonably necessary and appropriate to . NEGLIGENCE TORT CONTRACT, STRICT LIABILITY preserve and protect the Confidential Information and OR OTHERWISE, SHALL GRAYSHIFT OR ITS Grayshift's rights therein, at all times exercising the highest LICENSORS BE LIABLE FOR ANY INDIRECT, SPECIAL, duty of care. Further, the Receiving Party shall not attempt to INCIDENTAL, PiJNITIVE, EXEMPLARY, RELIANCE OR use any Confidential Information to discover,reverse compile, CONSEQUENTIAL DAMAGES INCLUDING WITHOUT reverse assemble or reverse engineer the Product, including by LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF removal, disassembly or alteration of any of the Product's GOODWILL, WORK STOPPAGE, ACCURACY OF components, whether internal or external. Receiving Pariy RESULTS, COMPUTER FAILURE OR MALFLJNCTION, agrees to restrict access to Grayshift's Confidential Information OR DAMAGES RESULTING FROM USE. GRAYSHIFT'S to those employees or agents who require access in order to LIABILITY FOR DAMAGES OF ANY KIND perform hereunder, and, except as otherwise provided, the WHATSOEVER ARISING OUT OF THIS AGREEMENT Receiving Pariy shall not make Confidential Information SHALL BE LIMITED TO THE FEES PAID BY LICENSEE available to any other person or entity without the prior written FOR THE PRODUCT. consent of Grayshift. 9.LICENSEE WARRANTIES. Licensee represents, 11.1. For the purposes of this Agreement, "Confidential warrants and covenants to Grayshift that (a) only Authorized Information means any proprietary, trade secret, financial, Users of Licensee who have obtained any necessary consents technical and non-technical information related to Grayshift's and approvals pursuant to applicable laws shall be permitted to business and current,future and proposed products and services use any of the Grayshift Products in connection with any and any derivatives therefrom containing, including, referring Devices; (b) Licensee and its Authorized Users shall only use to, or otherwise reflecting and/or generated from such the Products and Software in compliance with all applicable Confidential Information. Confidential Information includes, laws; and(c)Licensee and its Authorized Users shall only use ithout limitation, (i) information concerning the methods of the Products and Software in accordance with the consents and use, internal components, contents, features, functions and approvals obtained pursuant to applicable laws. solutions of Grayshift's software or product offerings including the Product and the SoBware), user manuals 10. WARRANTY DISCLAIMER. EXCEPT AS SET cluding the Product User's Manual), and the terms and : FORTH ABOVE GRAYSHIFT PROVIDES THE PRODUCT conditions of this Agreement,as updated from time to time;(ii) AS IS" AND WITHOUT WARRANTY OF ANY KIND, formation related to Grayshift's research, development, AND HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED design details and specifications, financial information, WARRANTIES, INCLUDING, WITHOUT LIMITATION, procurement requirements, engineering and manufacturing WARRANTIES OF MERCHANTABILITY, FITNESS FOR information, customer lists, business forecasts, sales A PARTICULAR PURPOSE, PERFORMANCE, information and marketing plans; and (iii) any copies, ACCURACY, RELIABILITY QUIET ENJOYMENT photographs, or other reproductions of the foregoing, whether . INTEGRATION,TITLE,NON-INTERFERENCE ANDNON or not marked as"confidential"or"proprietary." INFRINGEMENT. FURTHER, GRAYSHIFT DOES NOT 11.2. Confidential Information shall not include any WARRANT, GUARANTEE, OR MAKE ANY formation that is(i)already known to the Receiving Party at REPRESENTATIONS THAT THE PRODUCT OR Page 2 of 4 SWRS FINAL 1.7.2021 the time of the disclosure;(ii)publicly known at the time of the Except for the license and except as otherwise expressly disclosure or becomes publicly known through no wrongful act provided herein, the terms of this Agreement, including the or failure of the Receiving Pariy;(iii)subsequently disclosed to Confidentiality and Non-Disclosure obligations in Section 11 the Receiving Party on a non-confidential basis by a third party hereto, shall survive expiration and termination. not having a confidential relationship with Grayshift that Notwithstanding any other provision of this Agreement, the rightfully acquired such information;or(iv)communicated to a obligations of the parties as to Confidential Information shall third party by the Receiving Party with Grayshift's express remain binding in perpetuity until such information no longer written consent.qualifies as Confidential Information or until Grayshift sends the Receiving Party written notice releasing the Receiving Party 11.3. A disclosure of Confidential Information that is legally from its obligations under Section 11 hereto,whichever occurs compelled to be disclosed pursuant to a subpoena, summons, st. order or other judicial or governmental process shall not be considered a breach of this Agreement;provided the Receiving 13. INDEMNITY. Licensee shall indemnify, defend, or Party promptly notifies Grayshift in writing, if notification is at its option settle,any third parly claim or suit against Grayshift permitted by law, and uses commercially reasonable efforts to based on a claim: (i) of any breach of this Agreement by assist Graysliift, at Grayshift's expense, in opposing such Licensee, its affiliates, employees, agents, successors and disclosure or obtaining a protective order or other reliable assigns;and(i.i)relating to or based on the activities conducted assurance preventing or limiting such disclosure and/orensuring by Licensee or its Authorized Users, using or that used the that confidential treatment will be accorded to any Confidential Software and Product; and Licensee shall pay any final Information that is disclosed. Such disclosure doesnot remove judgment entered against Grayshift in any such proceeding or the Confidential Information so disclosed from theprotection of agreed to in settlement.Grayshift will notify Licensee inwriting this Agreement.No further disclosure beyond thescope of such of such claim or suit and give all information and assistance order is allowed. reasonably requested by Licensee or such designee. 11.4. The Receiving Pariy acknowledges and agrees that 14. GOVERNMENT USE. If Licensee is part of an due to the unique nature of Grayshift's Confidential agency, department, or other entity of the United States Information, there can be no adequate remedy at law for any Government ("Government"), the use, duplication, breach of its obligations under this Section 11, that any such reproduction,release,modification,disclosure or transfer of the breach will cause irreparable and continuing damage to Product or any related documentation is restricted in Grayshift and,therefore,that upon any such breach or any threat accordance with the Federal Acquisition Regulation 12.212 for thereof, Grayshift shall be entitled to whatever remedies it civilian agencies and the Defense Federal Acquisition mi ht have b law and e ui includinQ in'unctive relief a Regulation Supplement 227.7202 for military agencies. The g y q Ty' Product and documentation is a "commercial item",decree for specific performance, and all other relief as may be proper (including money damages, if appropriate). The commercial computer software" and "commercial computer Receiving Party further acknowledges and agrees that the software documentation." The use of the Product and covenants contained herein are necessary for the protection of documentation is further restricted in accordance with the terms legitimate business interests and are reasonable in scope. of this Agreement,or any modifications thereto. 12. TERM AND TERMINATION. This Agreement 15. EXPORT CONTROLS. Licensee shall comply with shall continue until terminated as set forth herein. the U.S.Foreign Corrupt Practices Act and all applicable export Notwithstanding the foregoing, the license to any Product is laws, restrictions, and regulations of the United States or only during the license term applicable to such Product. The foreign agency or authority. Licensee will not export, or allow license term shall be determined in the Order. Grayshift may the export or re-export, of the Product in violation of any such also revoke such license and/or terminate this Agreement laws,restrictions or regulations. immediately without refund or reimbursement if Licensee violates any provision of this Agreement. Any termination of 16. MISCELLANEOUS. This Agreement represents the this Agreement shall terminate the licenses granted hereunder. complete agreement concerning this license between the parties All Confidential Information, Products, Software and/or and supersedes all prior agreements and representations. This derivatives therefrom delivered pursuant to this Agreementshall Agreement may be amended only by a writing executed by both be and remain the property of the Grayshift, and upon parties. If any.provision of this Agreement is held to be invalid, expiration or termination of this Agreement for any reason, illegal or unenforceable in any respect, that provision shall be Licensee shall destroy(or return,at Grayshift's election)(i)the limited or eliminated to the minimum extent necessary so that Product; (ii)all hardware that contains copies of the Software; this Agreement shall otherwise remain in full force and effect iii)all materials in the possession of Licensee in any medium and enforceable. The failure of Grayshift to act with respect to that contain, refer to, or relate to all other written, printed, or a breach of this Agreement by Licensee or others does not tangible materials containing Confidential Information;and(iv) constitute a waiver and shall not limit Grayshift s rights with any derivatives therefrom, and shall so certify to Grayshift that respect to such breach or any subsequent breaches. This such actions have occurred.No such material shall be retained Agreement is personal to Licensee and may not be assigned, or used by the Receiving Party in any form or for any reason. sublicensed, or transferred for any reason whatsoever Page 3 of 4 SWRS FINAL 1.7.2021 including, without lirnitation, by operation of law, merger, without regard to the United Nations Convention on Contracts reor anization, or as a result of an acquisition or chan;e of for the International Sale of Goods. The sole and exclusive control involving Licensee) without Grayshifl's consent and jurisdiction and venue for actions arising under this Agreem nt any action or conduct in violation of the foregoing shall be void shall be the state and federal courts in Georgi; Licensee hereby aarees to service of rocess in accordance with the rules of such and without effect. This Agreement shall be governed by and p construed under the laws of the State of Georgia, U.S.A. court. vithout re ard to the conflicts of la vs provisions thereof, and GRAYSHIFT AGENCY: C / (/.1-} f r s' 1 1/l Si nature: Signature: Name:i k n r Name:/r G Title: Tide: Date: I Date: APPROVED AS TO FORM r MA E. BINNING Senior Assistant City Att Pa c oi 4 SWKS FINAL 1.7.2021