itWORKS!, Inc. (“itWORKS!”) has entered into a license agreement to reproduce and make available to its clients (“Client”, “You” or “End User”) certain software owned by ThreatLocker, Inc. (“ThreatLocker”). As part of this license agreement, itWORKS! is required to obtain an End User agreement with all End Users. Therefore, as a condition of your right to use or access or allow its authorized users the right to use or access any such products, itWORKS and you must agree to accept the following terms and conditions. By doing so, you acknowledge that the following terms and conditions including all limitations, disclaimers and other items that apply to itWORKS! as Reseller now include you as End User. itWORKS! reserves the right to and may change, modify, supplement or update the terms of this agreement from time to time. You will receive notice and an opportunity to accept these changes. If you do not agree to the change(s) itWORKS! shall have the right to terminate your use of the software or you will remain governed by the Terms in effect immediately prior to the change.
itWORKS! grants a limited right to use and access a non-exclusive, non-transferable, non-sublicensable, revocable license to: (a) download, install and use a copy of the downloadable Software on a computer that End User owns or controls and to run such copy of the Software; and (b) access any hosted Software solely for End User’s internal business use.
The Licensed Products, User Documentation, and all worldwide Intellectual Property Rights therein, are the exclusive property of ThreatLocker and its suppliers. All rights in and to the Licensed Product not expressly granted to Reseller in this Agreement are reserved by Company. End User agrees not to modify, adapt, alter the Licensed Product, reverse engineer, decompile or disassemble in any way the Licensed Product. You agree not to make any copies, modifications or derivation works of the licensed products.
ThreatLocker has warranted to itWORKS! that during the Term, that the Licensed Product, when used as permitted under this Agreement and in accordance with the instructions in the User Documentation (including use on a computer hardware and operating system platform supported by it), will operate substantially as described in the User Documentation. ThreatLocker does not warrant that use of the Licensed Product will be error-free or uninterrupted. ThreatLocker will, at its own expense and as its sole obligation and as itWORKS! sole and exclusive remedy for any breach of this warranty, use commercially reasonable efforts to correct any reproducible error in the Licensed Product reported to ThreatLocker in writing.
THIS EXPRESS WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE LICENSED PRODUCT OR THE USER DOCUMENTATION, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. RESELLER ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTIES IN THIS AGREEMENT AND THAT NO WARRANTIES ARE MADE BY ANY OF ANY OF THREATLOCKER’S SUPPLIERS.
LIMITATION OF LIABILITY. In no event will itWORKS!, ThreatLocker or their suppliers be liable to End User under any theory or liability nor for any consequential, indirect, exemplary, special, or incidental damages or other theory of law whatsoever, including but not limited to any lost data, lost profits, lost revenue or increased costs of any kind, arising from or relating to the licensed product or this Agreement.
END USER ACKNOWLEDGES THE ABOVE DISCLAIMER OF WARRANTY, LIMITATION OF LIABILITY AND EXPRESSLY AGREES TO BE SUBJECT TO SAME. IN ANY EVENT, YOU AGREE THAT UNDER NO CIRCUMSTANCES SHALL THE TOTAL AGGREGATE LIABILITY UNDER ANY THEORY OF RECOVERY, WHETHER BASED IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), UNDER WARRANTY, OR OTHERWISE, EXCEED THE TOTAL PAID TO itWORKS! FOR ONE MONTH OF RECURRING FEES EXCLUDING PARTS AND OTHER THIRD PARTY FEES.
Confidential Information. Each party (the “Disclosing Party”) may from time to time during the term of this Agreement disclose to the other party (the “Receiving Party”) certain information regarding the Disclosing Party’s business, including technical, marketing, financial, employee, planning, and other confidential or proprietary information (“Confidential Information”). The Disclosing Party will mark all Confidential Information in tangible form as “confidential” or “proprietary” or with a similar legend. The Disclosing Party will identify all Confidential Information disclosed orally as confidential at the time of disclosure. Regardless of whether so marked or identified, however, any information that the Receiving Party knew or should have known, under the circumstances, was considered confidential or proprietary by the Disclosing Party, will be considered Confidential Information of the Disclosing Party.
Protection of Confidential Information. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement and will disclose the Confidential Information of the Disclosing Party only to the employees of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
Exceptions. The Receiving Party’s obligations under the subsection titled Protection of confidential Information with respect to any Confidential Information of the Disclosing Party will terminate if the Receiving Party can document that such information: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) was disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) was independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by law or by the order or a court of similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
Return of Confidential Information. The Receiving Party will return to the Disclosing Party all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party or the expiration or termination of this Agreement, whichever comes first. At the Disclosing Party’s request, the Receiving Party will certify in writing signed by an officer of the Receiving Party that it has fully complied with its obligations under this subsection.
ItWORKS! may disclose and assign this Agreement to ThreatLocker. ThreatLocker is an intended third party beneficiary with the rights to enforce this agreement with respect to the licenses granted to use its software. ThreatLocker may enforce all of the above terms and conditions including disclaimers and limitations on liability.
This agreement supplements and is not in place of any other agreement(s) that you have with itWORKS!, which are hereby incorporated by reference. If there are any differences in your current agreement(s) with itWORKS! and this Agreement, the above Terms and Conditions only apply to this ThreatLocker License Agreement. All other previous terms and conditions remain in full force and effect.