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End User License Agreement

End User License Agreement

READ THIS END USER LICENSE AGREEMENT ("AGREEMENT") CAREFULLY BEFORE USING THE SOFTWARE OR A LICENSE KEY TO THE SOFTWARE. BY USING THE SOFTWARE OR OBTAINING A LICENSE KEY TO THE SOFTWARE, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ THIS AGREEMENT, THAT CUSTOMER UNDERSTANDS IT, AND THAT CUSTOMER ACCEPTS AND AGREES TO BE BOUND BY ITS TERMS. IF CUSTOMER IS NOT WILLING TO BE BOUND BY THE TERMS OF THIS AGREEMENT, CUSTOMER SHOULD CLICK THE “I DO NOT ACCEPT” BUTTON BELOW, TERMINATE THE DOWNLOAD AND/OR INSTALLATION PROCESS, AND REFRAIN FROM ACCESSING OR USING THE SOFTWARE AND A LICENSE KEY.
THE SOFTWARE AND LICENSE KEYS ARE COPYRIGHTED AND ARE LICENSED TO CUSTOMER UNDER THIS AGREEMENT; THEY ARE NOT SOLD TO CUSTOMER. THIS AGREEMENT REPRESENTS THE ENTIRE AGREEMENT BETWEEN CUSTOMER AND NEOACCEL CONCERNING THE SOFTWARE AND THE LICENSE KEYS, AND THIS AGREEMENT SUPERSEDES AND REPLACES ANY PRIOR PROPOSAL, REPRESENTATION, OR UNDERSTANDING CUSTOMER MAY HAVE HAD WITH NEOACCEL RELATING TO THE SOFTWARE AND THE LICENSE KEYS.
1. Parties, Software Documentation and License Keys.
1.1 Parties. The parties to this Agreement are NeoAccel, Inc. (“NeoAccel”) and the person or organization (“Customer”) that originally purchased from NeoAccel or an authorized NeoAccel reseller the SGX Hardware product (the “Product”).
1.2 Software. “Software” means the NeoAccel SSL VPN-Plus software included in the Product and includes any updates, enhancements, modifications, revisions, or additions to the Software made by NeoAccel to which Customer is entitled pursuant to a separate maintenance contract with NeoAccel. Notwithstanding the foregoing, NeoAccel shall be under no obligation to provide any updates, enhancements, modifications, revisions or additions to the Software absent a separate maintenance contract with Customer.
1.3 Documentation. “Documentation” means the user manuals accompanying the Software.
1.4 License Key. “License Key” means the digital product activation key necessary to complete the installation and to operate the Product. The License Key will be generated based on information that will be collected from the platform on which the Software is being installed and information from the Customer performing the installation. To retrieve the License Key, Customer information will be required, including Customer name, address, telephone number, and contact person name. The License Key may be accessed from a server via the public internet. In the event a server containing License Keys is unavailable for online access to the individual performing the installation or such individual does not have access to the public internet at the time of installation, NeoAccel will provide alternate, off-line means of obtaining a License Key. Each License Key will be programmed to allow a certain number of persons, which number shall depend on the Software package licensed by Customer, to use the Software via computers that communicate with the Product (the “Concurrent Users”).
2. License.
2.1 Grant of License. NeoAccel hereby grants to Customer, and Customer accepts, a limited, non-exclusive, non-transferable license, without the right to sublicense, to use the Software in machine-readable, object code form only, and the Documentation, only as authorized in this Agreement. No license is granted herein to any user who did not originally purchase the Product and Software from NeoAccel or an authorized NeoAccel reseller.
2.2 Scope of Use. Customer is not authorized to remove the Software from the Product. Customer shall use the Software solely as embedded in, and for the execution on, the Product, by accessing the Software through a computer. For purposes of this Agreement, “use” of the Software means loading the Software into the temporary or permanent memory of a computer. The Software may not be used by a greater number of persons than the number of Concurrent Users for which a License Key has enabled the Software. Each Concurrent User may use the Documentation solely for the purpose of using the Software.
2.3 Copies and Modifications. The Software and the License Keys contain copyrighted material, trade secrets and other proprietary intellectual property of NeoAccel. Customer may not decompile, disassemble, reverse-engineer or otherwise display the Software or a License Key in human-readable form, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. Customer may not modify, translate, make derivative works, rent, lease, distribute or lend the Software or a License Key, and Customer may not sell to others the right to use the Software on Customer’s computer. Customer may not remove any proprietary notices or labels on the Software. Customer may not copy, transfer, transmit, sublicense or assign this license, the Software, Documentation, or a License Key except as expressly permitted in this Agreement. Customer may not modify or adapt the Software or any License Key in any way. Customer may make one copy of the Software and the Documentation solely for backup or archival purposes. Any such copies of the Software or Documentation shall include any copyright or other proprietary notices that were included on such materials when Customer first received them. Except as authorized in this Section, no copies of the Software, Documentation, or License Key, or any portions thereof, may be made by Customer or any person under Customer’s authority or control.
2.4 Assignment of Rights. Customer will not assign, transfer, sublicense, lease, rent, or lend Customer’s rights in the Software, Documentation, or License Key to any third party without the prior written consent of NeoAccel.
3. Intellectual Property and Confidentiality.
3.1 Proprietary Rights to Software, License Keys, and Trademarks. Customer acknowledges that the Software, License Keys, and the Documentation are proprietary to NeoAccel, and are protected under United States copyright law and international treaties. Customer further acknowledges and agrees that, as between Customer and NeoAccel, NeoAccel owns and shall continue to own all right, title, and interest in and to the Software, License Keys, and Documentation, including associated intellectual property rights under copyright, trade secret, patent, or trademark laws. This Agreement does not grant Customer any ownership interest in or to the Software, License Keys, or the Documentation, but only a limited right of use that is revocable in accordance with the terms of this Agreement. Any and all trademarks or service marks that NeoAccel uses in connection with the Products or Software are marks owned by NeoAccel. This Agreement does not grant Customer any right, license, or interest in such marks, and Customer shall not assert any right, license, or interest in such marks or any words or designs that are confusingly similar to such marks.
3.2 Confidentiality. Customer shall permit only authorized users, who possess rightfully, obtained License Keys, to use the Software or to view the Documentation. Except as expressly authorized by this Agreement, Customer shall not make available the Software, Documentation, or any License Key to any third party. Customer will use Customer’s best efforts to cooperate with and assist NeoAccel in identifying and preventing any unauthorized use, copying, or disclosure of the Software, License Keys, Documentation, or any portion thereof.
4. Term and Termination. This Agreement is effective upon Customer’s acceptance of the Agreement, or upon Customer’s accessing or using the Software or a License Key. This Agreement shall continue in effect until terminated. Without prejudice to any other rights, this Agreement will terminate automatically if Customer fails to comply with any of the limitations or other requirements described herein. Customer may terminate this Agreement at any time by: (i) providing written notice of Customer’s decision to terminate the Agreement to NeoAccel and (ii) either returning the Software, Documentation, all copies thereof, and all License Keys that Customer has obtained, to NeoAccel, or destroying all such materials and providing written verification of such destruction to NeoAccel. NeoAccel may terminate this Agreement if Customer breaches any term of the Agreement by giving Customer written notice of Customer’s breach and NeoAccel’s decision to terminate the Agreement. Upon termination of the Agreement by NeoAccel, Customer shall agree either to return to NeoAccel the Software, Documentation, all copies thereof, and all License Keys that Customer has obtained, or destroy all such materials and provide written verification of such destruction to NeoAccel.
5. Remedies, Indemnification.
5.1 If Customer learns of any actual or threatened infringement or piracy of the Software, or if any infringement or piracy claim is made against Customer by a party other than NeoAccel in connection with Customer’s use of the Software, Customer shall notify NeoAccel in writing of the infringement, piracy or claim as soon as is reasonably possible. NeoAccel shall in its sole discretion determine what action if any to take with respect to the foregoing and shall assume the defense and bear the expenses of any such action (except to the extent, if any, to which such dispute or costs arise from Customer’s negligence, willful misconduct or modification of the Software). In the event that the use of the Software in accordance with the provisions of this Agreement is declared by a court of competent jurisdiction to infringe the rights of any third party, as Customer’s sole remedy, NeoAccel, at its option, shall (i) procure for Customer the right to use the Software, or (ii) modify the Software to render it non-infringing.
5.2 Customer will, at Customer’s own expense, indemnify and hold NeoAccel, and its subsidiaries and affiliates, and all officers, directors, and employees thereof, harmless from and against any and all claims, actions, liabilities, losses, damages, judgments, grants, costs, and expenses, including reasonable attorneys’ fees arising out of any use of the Software by Customer, any party related to Customer, or any party acting upon Customer’s authorization in a manner that is not expressly authorized by this Agreement.
6. Disclaimer. THE SOFTWARE, LICENSE KEYS, AND DOCUMENTATION ARE LICENSED “AS IS,” AND NEOACCEL DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, TO THE EXTENT AUTHORIZED BY LAW.
7. Limitation of Liability. NEOACCEL’S CUMULATIVE LIABILITY TO CUSTOMER OR ANY PARTY RELATED TO CUSTOMER FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT, SHALL BE LIMITED TO THE AMOUNT PAID BY CUSTOMER FOR THE PRODUCT. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNITY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS. IN NO EVENT SHALL NEOACCEL BE LIABLE TO CUSTOMER OR ANY PARTY RELATED TO CUSTOMER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OR LOST PROFITS, EVEN IF NEOACCEL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. Export. Customer agrees to comply with all applicable export laws and restrictions and regulations of any United States and any applicable foreign agency or authority, and not to export or re-export the Software or any direct product thereof in violation of any such restrictions, laws or regulations, or without all necessary approvals. Customer shall be liable for any such violations. The version of the Software supplied to you may contain encryption or other capabilities restricting your ability to export the Software without an export license.
9. Commercial Computer Software. The Software is "commercial computer software" and is provided with restricted rights. Use, duplication, or disclosure by the United States government is subject to restrictions set forth in this Agreement and as provided in DFARS 227.7201 through 227.7202-4, FAR 12.212, FAR 27.405(b)(2), FAR 52.227-19, or FAR 52.227-14(ALT III), or successor provisions, as applicable.
10. Governing Law and Interpretation. This Agreement shall be interpreted under and governed by the laws of the State of California, without regard to its rules governing the conflict of laws. If any provision of this Agreement is held illegal or unenforceable by a court or tribunal of competent jurisdiction, the remaining provisions of this Agreement shall remain in effect and the invalid provision deemed modified to the least degree necessary to remedy such invalidity.
11. Entire Agreement. This Agreement is the complete agreement between NeoAccel and Customer and supersedes all prior agreements, oral or written, with respect to the subject matter hereof.