- Binding Agreement.
- Grant of Limited License.
- Your Payment Obligations.
- Limited Warranty.
- Limitation of Liability.
- Intellectual Property Rights.
- Confidentiality and Rights to License to Third Parties.
- Lawful Use.
- Legal Compliance; Restricted Rights.
- Governing Law.
- Limitations Period.
- No Waiver.
- Term and Termination.
- No Oral Modification.
This End-User License Agreement, as modified, amended or supplemented ("EULA") is a legal contract between you and/or your organization ("you") and SunBlock Systems, Inc. ("SunBlock"). You hereby agree that SunBlock may modify, amend or supplement this EULA by posting a new, amended and restated EULA at www.BitFlare.com/EULA and you agree that, as of the date such replacement EULA is posted on SunBlock's web site, your rights in and to the Software shall be governed by such new or superseded version of the EULA. This EULA governs your authorized use of the BitFlare® software ("BitFlare") along with your authorized use of separately downloadable Evidence Discovery Packs ("EDPs") that are used with BitFlare (BitFlare and all EDPs are herein referred to as the "Software"). You agree and signify your assent to be bound by the terms of this EULA by: (a) breaking the seal on the case enclosing the disc containing BitFlare; (b) initiating a download of the Software from the SunBlock Web site; or (c) clicking "I understand and accept the terms above" when presented with this EULA by the Software. If you do not agree to the terms of this EULA, promptly destroy the disc or delete the file containing the Software.
Subject to the terms and conditions of this EULA, this EULA grants you a non-exclusive, non-transferable, non-sub-licensable right to Use, copy and distribute (i) BitFlare for the purpose of managing and archiving data stored on your digital storage medium and (ii) any EDP for the purpose of recovering, reading and analyzing the data processed by BitFlare. The term "Use" as used above means (i) with respect to BitFlare, the execution of BitFlare in object code, and (ii) with respect to an EDP, means the point-in-time execution (in object code) of the applicable EDP to analyze data recorded on the specific media designated by you at the time of purchase and captured by BitFlare.
You shall not directly or indirectly: (i) sell, lease, redistribute or transfer any of the Software; (ii) modify, translate, reverse engineer (except to the limited extent permitted by law), decompile, disassemble, create derivative works based on, or sublicense any of the Software; (iii) rent or lease any rights in any of the Software in any form to any person; (iv) use any Software in any way other than in its intended manner; (v) remove, alter or obscure any proprietary or copyright notice, labels, or marks on the hardware components of the Software; or (vi) disable or circumvent any access control or related security measure, process or procedure established with respect to Software or any other part thereof. You are responsible for all downloading, installing and using the Software and for compliance with this Agreement; any breach by you or any user shall be deemed to have been made by you. You may not reproduce BitFlare or any EDP for the purpose of sale, resale or any other unauthorized distribution. You may not assign, sublicense or otherwise transfer or share your rights under this EULA.
You may use BitFlare in accordance with this EULA free of charge so long as you adhere to the obligations contained in this EULA. However, you hereby agree and acknowledge that in the event you use BitFlare as the primary means to preserve or archive your data, SunBlock charges its then-applicable professional services rates in order to recover data originally preserved using BitFlare. SunBlock charges license fees for the Use of an EDP (in accordance with this EULA) according to the schedule of fees detailed on the BitFlare Web site (www.BitFlare.com). For the avoidance of any doubt, this EULA allows you to use the information preservation and archiving functionality of BitFlare with respect to your data without incurring an obligation to pay SunBlock any fees. However, in the event you desire to manipulate and conduct further analysis of any data preserved by BitFlare either through the use of an EDP or by engaging SunBlock's professional service experts, you agree and acknowledge that such EDP or SunBlock's professional services shall require that you first pay SunBlock the applicable license fee and/or professional service rates. SunBlock shall have no liability, and you agree to refrain from taking any action against SunBlock, for the recovery of any data originally processed by the Software without the payment of the applicable fees.
SunBlock warrants that the Software shall, for a period of sixty (60) days from the date of delivery or availability of the Software (the "Warranty Period"), be free from material defects in material and workmanship. SunBlock further warrants that during the Warranty Period the Software shall operate substantially in accordance with the instructions and user guides provided or made available to you for use with the Software. If, during the Warranty Period, a defect in the Software or the disks containing the Software appears, SunBlock will replace your copy of the Software at no cost to you. For the avoidance of any doubt and recognizing that the rules of evidence are applied and interpreted differently from one jurisdiction to another, SunBlock has made no representation or warranty, and nothing in this EULA, SunBlock's website or any other documentation or publication of SunBlock shall be construed or interpreted as a guaranty or warranty that (i) electronically stored information processed, archived or analyzed by the Software ("ESI") will meet evidentiary admissibility standards or thresholds by all courts or will be admissible evidence or (ii) a court, agency, arbitrator or tribunal will forgo an independent analysis whether the admissibility of such ESI comports with recognized rules of evidence or interpretations thereof within the jurisdiction in which such ESI is proffered as evidence. SunBlock shall have no responsibility or liability if any ESI is determined to be inadmissible evidence, and nothing herein shall replace, modify or supplant your obligation to comply with the applicable rules of evidence for such jurisdiction in which any ESI is being proffered as evidence. EXCEPT AS EXPRESSLY WARRANTED IN THIS SECTION 5 OF THIS EULA, THE SOFTWARE AND ANY OTHER DOCUMENTATION, MATERIALS AND/OR DATA PROVIDED BY SUNBLOCK ARE PROVIDED "AS IS" AND "WITH ALL FAULTS," AND SUNBLOCK EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF OPERABILITY, CONDITION, TITLE, NON-INFRINGEMENT, NON-INTERFERENCE, QUIET ENJOYMENT, VALUE, ACCURACY OF DATA, OR QUALITY, AS WELL AS ANY WARRANTIES OF MERCHANTABILITY, SYSTEM INTEGRATION, WORKMANSHIP, SUITABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT. SUNBLOCK DOES NOT WARRANT THAT THE SOFTWARE OR ANY OTHER INFORMATION, MATERIALS, DOCUMENTATION OR TECHNOLOGY PROVIDED UNDER THIS EULA WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.
You agree that SunBlock System's total liability to you and any other party for any loss, damages or penalties resulting from this EULA shall be limited to the license fee you have paid to SunBlock for the Use of this Software. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, YOU AGREE THAT SUNBLOCK IS NOT RESPONSIBLE OR LIABLE FOR, AND YOU AGREE TO HOLD SUNBLOCK HARMLESS FOR, ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOST PROFITS RESULTING FROM YOUR USE OR MISUSE OF THE SOFTWARE, REGARDLESS OF WHETHER YOU HAVE INFORMED SUNBLOCK OF THE POSSIBILITY OF SUCH DAMAGES OR LOST PROFITS. YOU HEREBY EXPRESSLY DISCLAIM AND WAIVE ANY RIGHT TO PURSUE A CLAIM AGAINST SUNBLOCK BASED IN WHOLE OR IN PART ON THE RESULT OF A LAWSUIT OR OTHER ACTION IN WHICH YOU USED THE SOFTWARE. YOU FURTHER AGREE TO HOLD SUNBLOCK HARMLESS AS A RESULT OF ANY SPOLIATION OR DESTRUCTION OF EVIDENCE CAUSED BY YOUR USE OR MISUSE OF THE SOFTWARE OR YOUR FAILURE TO FOLLOW INSTRUCTIONS WITH REGARD TO USE OF THE SOFTWARE.
WARNING: YOU MUST BE CERTAIN THAT THE COMPUTER THAT YOU INTEND TO USE THE SOFTWARE UPON IS CONFIGURED TO BOOT DIRECTLY TO THE MEDIA UPON WHICH THE SOFTWARE IS INSTALLED BEFORE USING THE SOFTWARE ON THAT COMPUTER. IF YOU ARE UNCERTAIN WHETHER THAT COMPUTER IS CONFIGURED CORRECTLY, CONTACT SUNBLOCK FOR ASSISTANCE BY PHONE OR BY E-MAIL (USING A DIFFERENT COMPUTER THAN THE ONE YOU INTEND TO ANALYZE). FAILURE TO HEED THIS WARNING MAY RESULT IN THE SPOILATION OR ALTERATION OF DATA ON THE COMPUTER UPON WHICH YOU WISH TO USE THE SOFTWARE.
You acknowledge and agree that SunBlock owns all rights and interests in the Software and that such Software is protected under, among other things, the patent law, the copyright law, the Lanham Act and the trade secret laws. Unless otherwise expressly stated herein, this EULA does not transfer to you any title or any ownership right or interest in the Software or in any other intellectual property rights of SunBlock. A patent on the Software is pending in the United States Patent and Trademark Office.
SunBlock may provide the Software and support services to any third party regardless of whether such party is adverse to you or your client in any actual or potential litigation. SunBlock shall treat and maintain as confidential any information you provide it through your use of the Software.
You accept full legal responsibility for all use of the Software. You agree to indemnify, defend and hold SunBlock harmless for any and all demands, claims, losses, liabilities, costs, expenses, legal action and damages, including all of SunBlock's reasonable attorney fees and costs, against SunBlock that may arise out of your use of the Software. You further agree to reimburse SunBlock for all reasonable attorneys' fees and costs incurred by SunBlock as a result of any subpoena, third party discovery request, or formal or informal legal inquiry to SunBlock arising from your use of the Software. In any legal action regarding the enforcement of this provision, the prevailing party shall be entitled to recover from the non-prevailing party all of its attorneys' fees and costs.
The Software may be used only on a computer that you have the lawful right to possess and perform forensic and other data analysis and recovery upon. You hereby acknowledge and warrant that your use of the Software is lawful. You further agree to indemnify, defend and hold SunBlock harmless, pursuant to paragraph 9 above, for any claim arising out of your unlawful use of the BitFlare software.
You shall be responsible for, and agree to comply with, all applicable laws, statutes, ordinances, regulations and other types of government authority (including without limitation the laws and regulations governing export control, unfair competition, anti-discrimination, false advertising, privacy and data protection, and publicity) ("Laws"). Without limiting the foregoing, you agree to comply with all U.S. export Laws and applicable export Laws of your locality (if you are not in the United States), and you further agree not to export any Software or other materials provided by SunBlock without first obtaining all required authorizations or licenses. The Software and documentation are "commercial computer software" and "commercial computer software documentation", and pursuant to FAR 12.212 or DFARS 227.7202, and their successors, as applicable, use, reproduction and disclosure of the Software and the documentation are governed by the terms of this Agreement.
You agree that in all disputes arising out of use of the BitFlare software, this EULA shall be construed under the laws of the Commonwealth of Virginia. You expressly agree with SunBlock that this Agreement shall not be governed by the U.N. Convention on Contracts for the International Sale of Goods. If any term of this Agreement is inconsistent with any provision of Uniform Computer Information Transactions Act ("UCITA"), as UCITA may be enacted in the Commonwealth of Virginia or any other state whose law is applicable, such term will be enforced to the full extent allowed by law. You consent to the jurisdiction and venue of any state or federal court with original jurisdiction over Fairfax County, Virginia upon service of process made in accordance with the statutes of the Commonwealth of Virginia and the United States. You further agree that any and all causes of action hereunder by and between you and SunBlock shall be brought solely within the state and federal courts having original jurisdiction over Fairfax County, Virginia.
Any action between the parties relating to this EULA, other than for payment of the license fee due to SunBlock for the use of the Software, shall be commenced, if at all, within one (1) year of the date that it accrues.
If any portion of this EULA shall be declared void, voidable, or unenforceable by a court of competent jurisdiction, such declaration shall have no effect on the remainder of this EULA.
The failure of either you or SunBlock to enforce any rights granted hereunder or to take action against the other party in the event of any breach of this EULA shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breach.
This EULA is effective upon your acceptance as described in paragraph 1 above, and shall continue until terminated. You may terminate this EULA at any time by returning the BitFlare software to SunBlock, or deleting the BitFlare software from any media upon which you have stored it. SunBlock may terminate this EULA if you breach any term of this EULA. Such termination will become effective immediately upon your breach of the EULA. Upon such termination by SunBlock, you agree to immediately return the BitFlare software to SunBlock, or to delete the BitFlare software from any media upon which you have stored it. Termination by either party shall not relieve you of your obligation to pay any fees due to SunBlock.
This EULA may only be modified, supplemented or amended by you in writing and signed by you and an authorized agent of SunBlock; provided nothing in this Section 17 shall affect SunBlock's right to unilaterally modify or amend this EULA by making available such amended or modified EULA at www.BitFlare.com/EULA.