This End User License Agreement (“EULA” or “Agreement”) is made between Stealthbits Technologies LLC (“Stealthbits’), a New Jersey limited liability company located at 200 Central Avenue, Hawthorne, New Jersey 07506 and the entity on whose behalf the Software is used (“Licensee”). This Agreement, together with any documents incorporated herein by reference, sets forth all terms and conditions applicable to use of the Software by Licensee.
|Severity Level||Initial Response Time||Provision of Workaround||Provision of Error Correction|
|1 – Critical Business Impact||2 Business Hours||4 Business Hours||2 Business Days|
|2 – Serious Business Impact||4 Business Hours||8 Business Hours||10 Business Days|
|3 – Minor Business Impact||8 Business Hours||5 Business Days||Future Release|
|4 – Enhancement Request||2 Business Days||Not Applicable||Not Applicable|
Stealthbits warrants that, for a period of thirty (30) days from the date of delivery (“Warranty Period”): (i) the media provided by Stealthbits, if any, on which the Software is recorded, will be free from material defects in materials and workmanship under normal use; and (ii) the operation of the Software, as provided by Stealthbits, will substantially conform to the Documentation applicable to the Software.
THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Licensee must report in writing any breach of the foregoing warranties to Stealthbits during the Warranty Period, and Licensee’s exclusive remedy, and Stealthbits’ sole obligation, for any such breach of warranty shall be for Stealthbits to replace the defective media and to correct or provide a Workaround for reproducible Errors that cause a breach of the warranty within a reasonable time considering the severity of the Error and its effect on Licensee, or, at Stealthbits option, refund the license fees paid for the nonconforming Software upon return of such Software to Stealthbits and termination of the related license hereunder.
Stealthbits will, at its own expense, defend or settle any claim, suit, action, or proceeding brought against Licensee by a third party (a “Claim”) to the extent that the Claim is based on an allegation that use of the then-current version of the Software in accordance with this Agreement directly infringes any patent, copyright or trademark, or misappropriates any trade secret (“Infringes”); provided that Licensee: (i) shall have given prompt written notice of such Claim to Stealthbits; (ii) permits Stealthbits to retain sole control of the investigation, defense or settlement of such Claim; and (iii) shall provide Stealthbits with such cooperation and assistance as Stealthbits may reasonably request from time to time in connection with the investigation, defense or settlement thereof. Stealthbits shall have no obligation hereunder to indemnify Licensee for any claim: (a) resulting from use of the Software other than as authorized in this Agreement and in the manner described in the Documentation; (b) resulting from a modification of the Software other than by Stealthbits; or (c) based on Licensee’s use of the Software after Stealthbits recommends discontinuation because of possible or actual infringement or use of a superseded or altered release of Software if the infringement would have been avoided by use of a current unaltered release of the Software made available to Licensee.
If the Software is adjudged by a court of competent jurisdiction to Infringe, and Licensee’s use of such Software is enjoined, Stealthbits shall, at its expense and option either: (i) obtain for Licensee the right to continue using the Software; (ii) replace the Software with a functionally equivalent non-Infringing product; (iii) modify the Software so that it is non-Infringing; or (iv) accept the return of the Infringing Software and, for a Perpetual license, refund a pro-rated portion of the license fee paid for the Infringing Software, based on a five (5) year product life, or, for a Subscription license, refund a pro-rata portion of the fees for the remainder of the then current Subscription term. This Section 10 states the entire liability of Stealthbits, and Licensee’s sole and exclusive remedy, with respect to infringement of intellectual property rights.