TOPPS SOLUTIONS LLC SOFTWARE LICENSE AGREEMENT FOR EZ-N-SECURE ENCRYPTION SERVICE FOR WINDOWS AND EXTENSIONS
PLEASE READ THIS SOFTWARE LICENSE AGREEMENT (“LICENSE”) CAREFULLY BEFORE USING
THIS AGREEMENT COVERS THE EZ-N-SECURE ENCRYPTION SOFTWARE AND SERVICE AS WELL AS ANY UPDATES OR MAINTENANCE RELEASES THERETO BY USING EZ-N-SECURE ENCRYPTION SERVICE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT INSTALL AND/OR USE THE SOFTWARE AND, IF PRESENTED WITH THE OPTION TO
“AGREE” OR “DISAGREE” TO THE TERMS, CLICK “DISAGREE”.
PLEASE REVIEW THESE TERMS CAREFULLY. ONCE ACCEPTED, THESE TERMS BECOME A BINDING LEGAL COMMITMENT BETWEEN YOU AND TOPPS SOLUTIONS LLC. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU SHOULD NOT CLICK THE “I ACCEPT” BUTTON AND YOU SHOULD NOT USE TOPPS SOLUTIONS LLC SERVICES.
IMPORTANT NOTE: TOPPS SOLUTIONS LLC DOESN’T PROVIDE WARRANTIES FOR ITS SERVICES, AND THESE TERMS LIMIT OUR LIABILITY TO YOU. For more details, go to Sections 7,8.
IN ADDITION, DISPUTES ABOUT THESE TERMS OR RELATING TO YOUR TOPPS SOLUTIONS LLC ACCOUNT OR TOPPS SOLUTIONS LLC’ SERVICES GENERALLY MUST BE RESOLVED BY BINDING ARBITRATION AND ON AN INDIVIDUAL BASIS ONLY. For more details, go to Section 16.
IMPORTANT NOTE: To the extent that this software may be used to reproduce or encrypt materials, it is licensed to you only for reproduction and encryption of non-copyrighted materials, materials in which you own the copyright, or materials you are authorized or legally permitted to use, reproduce or encrypt. If you are uncertain about your right to use, copy, reproduce or encrypt any material, you should contact your legal advisor. The use of the EZ-N-Secure Software is not intended for use by minors and no license is granted to any minor to use the software. If a minor desires to use the software, however, a Parent and/or Guardian must be the subscriber and is solely responsible for payment and the use of the account by a Minor.
A. The Topps Solutions LLC Software, any third party software, documentation, interfaces, content, fonts, extensions and any data accompanying this License whether on disk, in read only memory, on any other media or in any other form (collectively the “EZ-N-Secure Software”) are licensed, not sold, to you by the developer for use only under the specific terms of this License. No other rights are granted to you except as expressly provided herein. Topps Solutions LLC, and its’ licensors retain ownership of the software product itself and reserve all rights not expressly granted to you. The terms of this License will govern any software upgrades provided by Topps Solutions LLC that replace and/or supplement the original Software product, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
such content. This License does not grant you any rights to use such content nor does it guarantee that such content will continue to be available to you.
C. EZ-N-Secure, at its discretion, may make available future updates to the Software for your operating system. The EZ-N-Secure Software updates, if any, may not necessarily include all existing software features or new features that EZ-N-Secure releases for newer, other versions of, or other operating systems.
D. We may revise these Terms from time to time. If we do, those revised Terms will supersede prior versions. Unless we say otherwise, revisions will be effective upon the effective date indicated at the top of these Terms. We will provide you advance notice of any material revisions. This notice will be provided via the account portal and/or via an email to the email address we have on file. For other revisions, we will update the effective date of these Terms at the top of the page. We encourage you to check the effective date of these Terms whenever you visit the EZ-N-Secure website or account portal. Your continued access or use of our Software constitutes your acceptance of any revisions. If you don’t agree to the revisions, you should stop using the EZ-N-Secure Software and we are not obligated to provide you with the Software.
E. Unless you and Topps Solutions LLC agree otherwise in writing, all fees due under these Terms are payable in United States dollars. Payment obligations can’t be canceled and fees paid are non-refundable. If you are overdue on any payment and fail to pay within ten (10) business days of a written notice of your overdue payment, then we may assess and you must pay a late fee. The late fee will be either 1.5% per month, or the maximum amount allowable by law, whichever is less. Following the overdue notice, we may also suspend our your use of the Software to your account until you pay the amount you are overdue plus the late fee.
2. PERMITTED LICENSE USES AND RESTRICTIONS.
A. Subject to the terms and conditions of this License, this License allows you to install and use one copy of the EZ-N-Secure Software on each computer, or device, owned or controlled by you for which a licensee fee has been paid. To the extent that the Software may be used to reproduce or encrypt materials, such use is limited to reproduction or encryption of non-copyrighted materials, materials in which you own the copyright, or materials you are authorized or legally permitted to reproduce or encrypt. You may not make the EZ-N-Secure Software available over a network where it could be used by multiple computers at the same time. You may make one copy of the EZ-N-Secure Software in machine-readable form for backup purposes only; provided that the backup copy must include all copyright or other proprietary notices contained on the original. In addition to the restrictions stated above, the Topps Solutions LLC proprietary libraries (“Topps Solutions’ DLLs”) included with the EZ-N-Secure Software are only licensed for use with the Topps Solutions Software.
B. You may not and you agree not to or enable others to, copy (except as expressly permitted by this License), decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, or create derivative works of the EZ-N-Secure Software or any services provided by the EZ-N-Secure Software or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or by licensing terms governing use of any open source components that may be included with the Topps Solutions Software).
C. Use of and access to certain features of the EZ-N-Secure Software and certain Services (defined below) may require you to apply for a unique user name and password combination, known as your User Account.
A. You may not rent, lease, lend, sell, redistribute or sublicense the EZ-N-Secure Software. You may, however, make a one-time permanent transfer of all of your license rights to the EZ-N-Secure Software to another party, provided that: (a) the transfer must include all of the EZ-N-Secure Software, including all its component parts, printed materials, all copyright or other proprietary notices contained on the original and this License; (b) you do not retain any copies of the EZ-N-Secure Software, full or partial, including copies stored on a computer or other storage device; and (c) the party receiving the EZ-N-Secure Software accepts the terms and conditions of this License in writing. All components of the EZ-N Secure Software are provided as part of a bundle, i.e. as a unitary single software program and not individual components and may not be separated from the bundle and distributed as standalone applications.
B. Any copy of the EZ-N-Secure Software that may be provided by Topps Solutions LLC for promotional, evaluation, diagnostic or restorative purposes may only be used for such purposes and may not be resold or otherwise transferred.
4. CONSENT TO USE OF DATA.
A. Diagnostic and Usage Data.
If you choose to allow diagnostic and usage collection, you agree that
Topps Solutions LLC and its subsidiaries and agents may collect, maintain, process and use diagnostic, technical, usage and related information, including but not limited to unique system or hardware identifiers, information about your computer, system and application software, and peripherals, that is gathered periodically to provide and improve Topps Solutions LLC products and services, facilitate the provision of software updates, product support and other services to you (if any) related to the Topps Solutions LLC Software, and to verify compliance with the terms of this License.
5. DISCLOSURE TO AUTHORITIES AND LAW ENFORCEMENT, AND LIABILITY
Topps Solutions LLC (EZ-N-Secure Software) will not be used for illegal or immoral purposes. If required by law, Topps Solutions LLC will fully comply with law enforcement. It is possible that law enforcement would require Topps Solutions LLC to divulge information that might enable law enforcement to attempt to decrypt files if they have seized your devices. Topps Solutions LLC is not liable under any circumstances when cooperating with authorities and law enforcement.
6. TERM AND TERMINATION.
This License is effective until your account with EZ-N-Secure is terminated by you or Topps Solutions LLC (EZ-N-Secure). Your rights under this License will terminate automatically or otherwise cease to be effective without notice from EZ-N-Secure if you fail to comply with any term(s) of this License. Upon the termination of this License, you shall cease all use of the EZ-N-Secure Software and destroy all copies, full or partial, of the EZ-N-Secure Software. All sections of this License shall survive any such termination. EZ-N-Secure reserves the right to terminate your service at any time without prior notice, and for any reason. No refund of fees is provided to you at termination of service, whether initiated by you or Topps Solutions LLC (EZ-N-Secure). Quarterly fees will cease at termination of service.
7. DISCLAIMER OF WARRANTIES
A. If you are a customer who is a consumer (someone who uses the EZ-N-Secure Software outside of your trade, business or profession), you may have legal rights in your country of residence which would prohibit the following limitations from applying to you, and where prohibited they will not apply to you. To find out more about rights, you should contact a local consumer advice organization.
B. You expressively acknowledge and agree that, to the extent permitted by
Applicable law, use of the EZ-N-Secure Software is at your sole risk and that the entire risk as to satisfactory quality, performance, accuracy and effort is with you.
C. To the maximum extent permitted by the applicable law, the EZ-N-Secure Software is provided “as is” and “as available”, with all faults and without warranty of any kind including without any implied warranty such as , and that Topps Solutions LLC and others working with Topps Solutions LLC to provide services to you hereby disclaim all warranties and conditions with respect to the EZ-N-Secure Software and services, either express, implied or statutory, including, but not limited to the implied warranties and/or conditions of merchantability, satisfactory quality, fitness for a particular purpose, accuracy, quiet enjoyment and non-infringement of third party rights.
D. Topps Solutions LLC does not warrant against interference with your enjoyment of the EZ-N-Secure Software or services, that the functions contained in, or services performed or provided by the EZ-N-Secure Software will meet your requirements, that the operation of the EZ-N-Secure Software will be uninterrupted or error-free, that any services will continue to be made available, that the EZ-N-Secure Software or services will be compatible or work with any third party software, applications or third services, or that defects in the EZ-N-Secure Software or services will be corrected. Installation of the EZ-N-Secure Software may affect the usability of third party software, applications or third party services.
E. You further acknowledge that the EZ-N-Secure Software and services are not intended or suitable for use in situations or environments where the failure or time delays of, or errors or inaccuracies in the content data or information provided by, the EZ-N-Secure Software or services could lead to death, personal injury, or severe physical or environmental damage, including without limitation the operation of nuclear facilities, aircraft navigation or communications systems, air traffic control, life support, or weapons systems.
F. No oral or written information or advice given by Topps Solutions LLC or anyone authorized to represent Topps Solutions LLC shall create a warranty. Should the EZ-N-Secure Software or services prove defective, you assume the entire cost of all necessary serving, repair or correction. Some jurisdictions do not allow the exclusion of implied warranties or limitations on applicable statutory rights of a consumer, so the above exclusion may not apply to you.
G. Parents and/or Guardians of Minors may choose to allow minors to use the EZ-N-Secure Software, however the Parent and/or Guardian must be the subscriber and is solely responsible for payment and the use of the account by a Minor.
H. TOPPS SOLUTIONS LLC HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES RELATED TO THIRD-PARTY EQUIPMENT, MATERIAL, SERVICES OR SOFTWARE. TOPPS SOLUTIONS LLC SOFTWARE IS PROVIDED “AS IS” TO THE FULLEST EXTENT PERMITTED BY LAW. TO THE EXTENT THIS DISCLAIMER CONFLICTS WITH APPLICABLE LAW, THE SCOPE AND DURATION OF ANY APPLICABLE WARRANTY WILL BE THE MINIMUM PERMITTED UNDER THAT LAW
8. LIMITATION OF LIABILITY.
A. Limitation on Direct or Indirect Damages.
TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL TOPPS SOLUTIONS LLC BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATIONS, DAMAGES FOR LOSS OF PROFITS, CORRUPTION OR LOSS OF DATA OR INFORMATION, FAILURE TO TRANSMIT OR RECEIVE ANY DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE EZ-N-SECURE SOFTWARE OR SERVICES OR ANY THIRD PARTY SOFTWARE OR APPLICATION IN CONJUNCTION WITH THE EZ-N-SECURE SOFTWARE OR SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE AND EVEN IF TOPPS SOLUTIONS LLC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW EXCLUSION OR LIMITATION OF LIABILITY, INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT SHALL TOPPS SOLUTIONS LLC TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF TWENTY-FIVE DOLLARS ($25.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
B. Special Exclusion.
IN JURISDICTIONS THAT DO NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, ALL OR A PORTION OF SECTION 6.A ABOVE MAY NOT APPLY. CUSTOMER ACKNOWLESGES AND AGREES THAT NO INDEMNITY IS GIVEN WITH RESPECT TO THE SOFTWARE.
D. Limitation Period.
Unless otherwise required by applicable law, the limitation period for claims for damages shall be eighteen (18) months after the cause of action accrues, unless statutory law provides for a shorter limitation period.
9. EXPORT CONTROL.
You may not use or otherwise export or re-export the EZ-N-Secure Software except as authorized by United States law and the laws of the jurisdiction(s) in which the EZ-N-Secure Software was obtained. In particular, but without limitation, the EZ-N-Secure Software may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially
Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List or any other restricted party lists. By using the EZ-N-Secure Software, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the EZ-N-Secure Software
for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of missiles or nuclear, chemical or biological weapons. These laws include restrictions on destinations, End Users, and end use. Without limitation, you may not transfer any such software or other aspect of our Service without U.S. government authorization to any entity on a U.S. government exclusion list (e.g., the Department of Commerce’s List of Denied Persons, Entity, or Unverified List, and the Treasury Department’s List of Specially Designated Nationals and Consolidated Sanctions List). You represent that you are not on a U.S. government exclusion list or under the control of or an agent for any entity on such a list, and you further warrant that you will immediately discontinue use of our software and Services if you become placed on any such list or under the control of or an agent for any entity placed on such a list.
10. GOVERNMENT END USERS.
The EZ-N-Secure Software and related documentation 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 being licensed to U.S. 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 herein.
Unpublished-rights reserved under the copyright laws of the United States.
11. CONTROLLING LAW AND SEVERABILITY.
This License will be governed by and construed in accordance with the laws of the State of New York, excluding its conflict of law principles. This License shall not be
governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this License shall continue in full force and effect.
12. COMPLETE AGREEMENT; GOVERNING LANGUAGE.
This License constitutes the entire agreement between you and Topps Solutions LLC relating to the use of the EZ-N-Secure Software and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this License will be binding unless in writing and approved and signed by Topps Solutions LLC. Any translation of this License is done for local requirements and in the event of a dispute between the English and any non-English versions, the English version of this License shall govern, to the extent not prohibited by local law in your jurisdiction.
13. ORDERING, PRICING AND PAYMENT.
A Schedule or Quote will be deemed accepted by Customer when Customer creates an EZ-N-Secure Software account or the Customer chooses a subscription plan for the EZ-N-Secure Software. Topps Solutions LLC will issue an invoice upon expiration of the trial period of the EZ-N-Secure Software, and then quarterly thereafter. Such invoice will reflect the price for the use of such software as set forth on the Schedule or Quote. Fees for maintenance services, if any, will be billed separately. Customer shall pay Topps Solution, LLC the price stated on the invoice and also pay or reimburse Topps Solutions LLC for all related taxes or withholdings, except for those taxes based on Topps Solutions LLC net income. If Customer is required to withhold taxes, then Customer will forward any withholding receipts to Topps Solutions LLC. All amounts are due in US currency and on receipt of the invoice from Topps Solutions LLC, with interest accruing thereafter at the lesser of 1.5% per month or the highest lawful rate. Service will be downgraded to the free version of EZ-N-Secure software on failure of payment.
14.THIRD PARTY ACKNOWLEDGEMENTS.
EZ-N-Secure Software may incorporate third party open source programs. All third party component licenses utilized by the EZ-N-Secure Software may be viewed at:
You will defend, indemnify and hold Topps Solutions LLC and its affiliates harmless against any actual or threatened claim, loss, liability, proceeding, third-party discovery demand, governmental investigation or enforcement action arising out of or relating to your activities under these Terms. We and our affiliates will cooperate as fully as reasonably required in the defense of any Claim, at your expense. We reserve the right, at your expense, to retain separate counsel for ourselves in connection with any Claim or, if you have not responded reasonably to the applicable Claim, to assume the exclusive defense and control of any Claim in which you are a named party and that is otherwise subject to indemnification under this Section 13 (Indemnification). You will pay all costs, reasonable attorneys’ fees and any settlement amounts or damages awarded against us in connection with any Claim. You will also be liable to us for any costs and attorneys’ fees we incur to successfully establish or enforce our right to indemnification under this Section.
Before bringing a formal legal case, please first try contacting our Customer Support. Most disputes can be resolved that way. If we can’t resolve our dispute through our customer support, you or any of your affiliates on one hand and Topps Solutions LLC and any of Topps Solutions LLC’ affiliates on the other hand, all agree to resolve any dispute arising under these Terms by binding arbitration in New York, New York, or in another location that we have both agreed to. This applies to all claims under any legal theory.
Prior to filing any arbitration, both parties jointly agree to seek to resolve any dispute between us by mediation conducted by the American Arbitration Association (AAA), with all mediator fees and expenses paid equally by the parties. If mediation is not successful, either party may initiate an arbitration proceeding with AAA.
The arbitration will be governed by the then-current version of AAA’s Commercial Arbitration Rules (the "Rules") and will be held with a single arbitrator appointed in accordance with the Rules.
The arbitrator’s award will be based on the evidence admitted and the substantive law of the State of New York and the United States, as applicable, and will contain an award for each issue and counterclaim. The award will provide in writing the factual findings and legal reasoning for such award. The arbitrator will not be entitled to modify these Terms.
Except as provided in the Federal Arbitration Act, the arbitration award will be final and binding on the parties. Judgment may be entered in any court of competent jurisdiction.
17. CLASS ACTION WAIVER.
Both you and your affiliates, on one hand, and Topps Solutions LLC and its affiliates on the other hand, agree that any claims or controversies between us must be brought against each other on an individual basis only. That means neither you and your affiliates on one hand nor Topps Solutions LLC and its affiliates on the other hand can bring a claim as a plaintiff or class member in a class action, consolidated action, or representative action. The arbitrator cannot combine more than one person’s or entity’s claims into a single case, and cannot preside over any consolidated, class or representative proceeding (unless we agree otherwise). And, the arbitrator’s decision or award in one person’s or entity’s case can only impact the person or entity that brought the claim, not other Topps Solution LLC customers, and cannot be used to decide other disputes with other customers.