PLEASE CAREFULLY READ ALL OF THE TERMS AND CONDITIONS OF THIS SOFTWARE END USER LICENSE
AGREEMENT (EULA). A COPY OF THIS LICENSE IS AVAILABLE FOR YOUR PRINTING AND RECORD KEEPING AT
LICENSING.VIASATMDD.COM.
BY YOU (LICENSEE) ACKNOWLEDGING ACCEPTANCE BELOW AND TAKING ANY STEPS TO INSTALL, LOAD, ACTIVATE OR USE THE
SOFTWARE,
YOU REPRESENT THAT YOU ARE AUTHORIZED AND/OR HAVE OBTAINED AUTHORIZATION TO ACCEPT THIS SOFTWARE END USER
LICENSE
AGREEMENT ON BEHALF OF YOURSELF AND THE ORGANIZATION THAT YOU REPRESENT, AS APPLICABLE. MOREOVER, YOU AGREE TO
BE
BOUND BY THE TERMS AND CONDITIONS OF THIS SOFTWARE END USER LICENSE AGREEMENT. IF YOU DO NOT AGREE WITH ALL THE
TERMS
AND CONDITIONS OF THIS EULA, YOU ARE NOT PERMITTED TO INSTALL, LOAD, ACTIVATE OR USE THIS SOFTWARE.
1. Definitions
As used in this Agreement the term "Licensed Program" shall mean Licensor's Mobile Dynamic Defense (MDD)
software
programs, inclusive of the provisioner computer software and the client/application device software, in
whatever
form provided (whether as floppy or hard disks, internet download, CD ROM, cartridges, semiconductor chips or
otherwise)
or however designated (whether as firmware, microcode or otherwise) and includes all changes, additions,
revisions,
replacements, manuals and documentation which may be provided by Licensor.
2. License Grant
In consideration of the right to download and use the Licensed Program, Licensor hereby grants to Licensee
a limited,
non-exclusive, and non-transferable (except as otherwise expressly permitted under this Agreement or by an
authorized
representative of Licensor) license to use Licensed Program.
Licenses hereunder are not a sale of the software or any rights thereto and convey no right or interest to
Buyer
or the licensee other than a right to use the software as provided herein.
3. Term
The term of the license grant shall commence as of the date of delivery of the Licensed Program to Licensee
and Licensee's
acceptance of the terms of this License. The term of this license shall continue indefinitely except that the
license
will automatically terminate upon Licensee's breach of any of the provisions of this Agreement with or without
notice
from Licensor. Upon termination, Licensee must immediately uninstall the Licensed Program. Additionally, the
client/application
device software portion of the Licensed Program will automatically time out.
4. Title; Ownership
The Licensed Program, including all title, copyright and other rights thereto, is owned by and shall remain
the property
of Licensor and its licensors, as applicable, and be subject to this Agreement. Licensee agrees that it will
use
the Licensed Program only as authorized herein, that it will not copy (except as authorized below), modify,
create
derivative works of, decompile, disassemble, translate or reverse engineer the Licensed Program. Licensee
further
agrees that it will retain and comply with all proprietary and copyright notices of Licensor and its licensors
in
the Licensed Program.
5. Copyright; Proprietary Rights
The Licensed Program is protected by copyright and other intellectual property laws and by international
treaties.
Licensee acknowledges that the Licensed Program contains valuable proprietary information and trade secrets of
Licensor
and its licensors and that unauthorized dissemination or use of the Licensed Program will cause irreparable
harm
and that Licensor shall be entitled to injunctive relief in addition to all other available remedies. Licensee
shall
not claim or register, or attempt to claim, register or cause to be registered in any jurisdiction of the
world,
any right, title or interest in and to any intellectual property embodied in the Licensed Program and any
modifications,
improvements or derivations thereto or thereof. Licensee shall not have or acquire by the execution of this
Agreement
or by performance hereunder, or otherwise, any vested or proprietary right with respect to the Licensed
Program.
6. Copies
Licensee may not copy the Licensed Program other than the mere installation process of installing the
Licensed Program
onto Licensee's device(s). Licensee may install the Licensed Program on a different computer/device during the
term
of this Agreement provided that the quantity of installed Licensed Programs at any given time does not exceed
the
quantity of purchased Licensed Programs. Each time the Licensed Program is installed, acknowledgement of the
acceptance
of the terms of this License is an embedded requirement.
7. No Right to Modify
Licensee does not have the right to edit, change, format, enhance or otherwise modify the Licensed Program
or to
merge the Licensed Program or any portion thereof with other software programs to form an updated or derivative
work.
8. U.S. Government License
If Licensee is a unit or agency of the U.S. Government, the Licensed Program is provided as proprietary,
trade secret,
commercial computer software and documentation developed at private expense and its use, duplication or
disclosure
is restricted to the terms and conditions of this Agreement under applicable government regulations, including
FAR
12.212 or DFAR 227.7202-3. A U.S. Government Licensee may, with prior written consent of Licensor, transfer and
deliver
the Licensed Program to an agency of another government provided, (i) such transferee agrees to conform to the
requirements
of this License Agreement and (ii) the U.S. Government Licensee complies with all applicable laws and
regulations
regarding the export of the Licensed Program. The obligations of a U.S. Government Licensee under this
Agreement
shall survive any transfer of the Licensed Program made pursuant to this paragraph 8.
9. Right to Assign and Transfer
Licensee shall not sublicense, assign, or transfer the Licensed Program or any right or obligation granted
hereunder,
without prior written consent of Licensor, except that Licensee may assign or transfer this Agreement to
another
party (Assignee) provided that Licensee transfers the Licensed Program and all accompanying printed materials
to
the Assignee, and provided that the Assignee assumes all of Licensee's obligations hereunder. Any assignment in
violation
of the foregoing shall be void and of no effect. Licensor may assign this Agreement without limitation. Subject
to
the foregoing, this Agreement shall bind and inure to the benefit of the parties and their respective
successors
and permitted assigns.
10. Infringement Indemnity
Due to the Licensed Program being provided to Licensee at no cost, Licensor has no obligation or
liabilities to Licensee
against any claim, suit or proceeding ("Suit") brought against Licensee based on a claim that the Licensed
Program
furnished hereunder and used in accordance with Licensor specifications infringes any patent or copyright of
the
United States. Licensor will, at its own expense, be entitled to defend (or at its sole option, settle) any
claim
asserted against Licensee by a third party that any Licensed Program obtained from Licensor under this
agreement
directly infringes any U.S. patent or copyright, so long as Licensor is notified promptly in writing and given
the
right of full participation in, authority, information and assistance for the defense or settlement of the
same,
at Licensor's reasonable expense. In no case shall Licensor be responsible for any cost, expense or compromise
made
without the written consent of Licensor. In the event the Licensed Program in such Suit is held to constitute
infringement
and the use thereof is enjoined or in the event of institution of a Suit or notification of the reasonable
possibility
thereof, or at any time in the sole discretion of Licensor, Licensor shall at its own expense and option,
either
(a) procure for Licensee the right to continue using the Licensed Program or (b)(i) replace the same with a
non-infringing
product, or (ii) modify the Licensed Program so that it becomes non-infringing, or (iii) remove the Licensed
Program.
The foregoing states the sole obligation of Licensor and the exclusive remedy of Licensee for any claim of
intellectual
property infringement.
Notwithstanding anything to the contrary herein, the foregoing shall not apply and Licensor shall have no
obligation
or liability to Licensee for infringement based on: (v) any change or modification made by Licensee or others
after
delivery of the Licensed Program; (w) the use or combination of the Licensed Program with other hardware or
software
products, if infringement would have been avoided without such combination; (x) the use of the Licensed Program
in
any manner for which the Licensed Program were not designed; or (y) a non-current release or version of the
Licensed
Program if infringement would have been avoided by use of such current Licensed Program.
11. Warranty; Disclaimer
LICENSOR PROVIDES THE LICENSED PROGRAM "AS IS" WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, EITHER
EXPRESS OR
IMPLIED, WHETHER WRITTEN OR ORAL, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR
PURPOSE OR BASED ON ANY SAMPLE OR MODEL. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PROGRAM IS
WITH
LICENSEE AND/OR OTHER PARTIES. SHOULD THE PROGRAM PROVE DEFECTIVE, LICENSEE AND/OR OTHER PARTIES ASSUME THE
COST
OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. LICENSEE MAY REPORT PROBLEMS AT MDD.SUPPORT@VIASAT.COM. LICENSOR
MAY,
AT ITS DISCRETION, MAKE AVAILABLE FIXES AND PATCHES TO REMEDY ANY DEFECTS IN THE SOFTWARE
12. Limitation of Liability
In no event will Licensor or its Licensors be liable to Licensee or Other Parties for any damages
whatsoever, including,
but not limited to, any general, punitive, exemplary, special, indirect, incidental or consequential damages
(including
but not limited to lost profits, revenue, good will or loss or use of data) or any costs of substitute licensed
programming
arising out of Licensee's installation and/or use or inability to use the Licensed Program, whether such claim
is
based on breach of warranty, contract, tort (including negligence), strict liability or under any other legal
theory
and regardless of the cause of such loss or damage. The essential purpose of this provision is to limit
Licensor's
liability under or arising out of this Agreement, it being acknowledged and agreed by Licensee that this
limitation
is essential consideration to Licensor for providing the Licensed Program hereunder.
13. Export Compliance, Written Assurances
Licensee hereby gives written assurance to Licensor that it will not ship, export, transfer, or release,
directly
or indirectly: (1) the Licensed Program; (2) any written information or information contained on any physical
media
provided by Licensor to Licensee related to the Licensed Program; or (3) the direct product of any of the above
("Deliverables"),
without first obtaining any required U.S. government licenses and approvals. Licensee furthermore agrees not to
ship,
export, transfer, or release Deliverables to any country or entity prohibited or restricted by the U.S. export
and
sanction laws and regulations including, but not limited to the Export Administration Regulations (EAR)
administered
by the U.S. Department of Commerce. Licensee further assures Licensor that no Deliverables received from
Licensor
will be directly employed or shipped, exported, transferred, or released to any end-user engaged in prohibited
activities,
or for any end-use, related to the design, development, production, or use of weapons of mass destruction
including
nuclear, chemical, or biological weapons, and/or the missile technology to deliver them.
This paragraph 13 shall survive the expiration or termination of this Agreement.
14. Entire Agreement
THIS AGREEMENT CONSTITUTES THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN LICENSOR AND
LICENSEE, AND
SUPERSEDES ALL ORAL OR WRITTEN PROPOSALS, PRIOR AGREEMENTS AND OTHER PRIOR COMMUNICATIONS BETWEEN THE PARTIES
CONCERNING
THE SUBJECT MATTER OF THIS AGREEMENT, IF ANY.
15. General
This Agreement shall be construed in accordance with its English language version and all disputes relating
in any
way to this Agreement shall be governed in accordance with the laws of the State of California, without regard
to
its conflict of laws provisions. The International Sale of Goods convention shall not apply to this Agreement.
No
representation or promise relating to and no amendment of this Agreement shall be binding unless it is in
writing
and signed by both parties. Neither party shall be liable for any failure to perform due to causes beyond its
reasonable
control. No waiver by a party of any breach of that or any other provision of this Agreement shall constitute a
waiver
of any other breach of that or any other provision contained in this Agreement. If any provision of this
Agreement
is held to be unenforceable, this Agreement shall be construed without such provision. All provisions in this
Agreement
which by their language, context or nature are intended to survive, such as without limitation, proprietary
rights,
indemnification, and limitation of liability, shall survive any termination of this Agreement. This Agreement
does
not give to any third person, except Licensor's licensors, any benefit, right or remedy. Licensee shall be
responsible
for and pay any and all taxes, export/import customs fees, duties, excise or other charges of whatever nature
as
are now or may hereafter be imposed upon or levied in connection with the sale, license, use, possession,
exportation,
importation or servicing of the Licensed Program (except for taxes imposed upon the net income of Licensor) and
any
such taxes, fees, duties, charges, etc. imposed upon Licensor shall be promptly reimbursed to Licensor by
Licensee
upon demand. The use of the singular and plural shall each be deemed to include the other as indicated by the
context.