Verify + by Kobetron End User License Agreement
As used in this VERIFY + BY KOBETRON END USER LICENSE AGREEMENT (hereinafter the “Agreement”), “Kobetron” means Kobetron, LLC, a Delaware Limited Liability Company, with offices located at 4720 Independence St. Wheat Ridge, CO 80033 and “Licensee” means You, the end user of the Licensed Materials that is the subject of this Agreement.
1. LICENSE GRANT.
Kobetron grants to Licensee a nontransferable, non-exclusive license to use this computer program and the Data and Contents (collectively “Licensed Software” or “Software”) that go with it or that may be, from time to time, downloaded or updated, solely to test gaming machines, along with the VERIFY + BY KOBETRON® USER GUIDE and any related materials (collectively along with the “Software” referred to as the “Licensed Materials”) provided that License and its agents agree to all of the Terms and Conditions of this Agreement as further set forth below.
This Agreement is effective beginning on the date on which the Licensee either enters into a written agreement with Kobetron or upon initiation of use of the Software. This Agreement may be terminated by Licensee by destroying all of Licensed Materials, including the Software, together with all copies. This Agreement may be terminated by Kobetron, without notice, if, in Kobetron’s sole discretion, Licensee fails to comply with any Term or Condition of this Agreement.
THE SOFTWARE, INCLUDING THE DATA AND CONTENTS THEREIN, AS THEY MAY VARY FROM TIME TO TIME, AS WELL AS THE VERIFY KOBETRON ®
USER GUIDE ARE THE SOLE AND EXCLUSIVE PROPERTY OF KOBETRON. THEY ARE PROTECTED BY UNITED STATES COPYRIGHT LAW (TITLE 17
UNITED STATES CODE). NO REPRODUCTION OF THE LICENSED MATERIAL IS PERMITTED WITHOUT THE EXPRESS PRIOR WRITTEN CONSENT OF
KOBETRON. UNAUTHORIZED REPRODUCTION BY COPYRIGHT INFRINGERS MAY RESULT IN IMPRISONMENT, CRIMINAL FINES OR CIVIL LIABILITY.
4. COPY RESTRICTIONS.
(a) Licensee may make one (1) copy of the Software for backup purposes only provided that the backup copy is kept in a secure location.
(b) In no event does the copying permitted under this Agreement include the right to decompile, disassemble, or electronically transfer the Software, or to translate the Software into another computer language. Licensee may not copy the VERIFY + BY KOBETRON User Guide or any related documentation.
(c) Licensee agrees to include the copyright notice set forth on the label on the media, or embodied in the Software, or on any copy of the Software in any form, in whole or in part.
5. PROTECTION AND SECURITY.
Licensee agrees to use its best efforts and to take all reasonable steps to safeguard the Software and Licensed Materials to ensure that no unauthorized person shall have access thereto and that no unauthorized copy, publication, disclosure or distribution, in whole or in part, in any form, shall be made. Licensee acknowledges that the Licensed Materials including the Software contain valuable confidential information, data and trade secrets and that the unauthorized use and/or copying of the Software will cause irreparable harm to Kobetron for which monetary damages may not be sufficient. Accordingly, in addition to any other legal remedies which may be available, at law or in equity, Kobetron shall be entitled to equitable or injunctive relief against the unauthorized use or disclosure of its confidential information, data and trade secrets found in its Software or in the VERIFY + BY KOBETRON ® END USER GUIDE.
6. DUTY TO UPDATE AND BACKUP DATA.
a. The Software is intended to communicate with Kobetron servers to check for available updates to the Software, including new content and data, and to identify bug fixes, enhanced functions, missing plug-ins and new versions (collectively “Updates”). By installing the Software, Licensee agrees to automatically request and receive Updates each time Licensee uses the Software.
b. IT IS THE RESPONSIBILITY OF THE LICENSEE TO LOOK FOR AND OBTAIN UPDATES FROM KOBETRON’S WEB SITE PRIOR TO USE EACH DAY AND TO MAINTAIN PERIODIC BACKUP COPIES OF ALL DATA AND PROGRAMS USED IN CONJUNCTION WITH THE LICENSED SOFTWARE TO PREVENT CATASTROPHIC LOSS.
7. U.S. GOVERNMENT RESTRICTED RIGHTS
If the Software is used or accessed by or on behalf of the United States government, suchuse or access is subject to the following provisions. The Software and any related documentation are deemed “commercial computer software” and “commercial computer software documentation,” respectively, within the meaning of the applicable civilian and military Federal acquisition regulations and any supplement thereto. If the user of the Software is an agency, department, employee, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Software, including technical data or manuals, is restricted by the terms, conditions and covenants contained in these Terms of Service. In accordance with Federal Acquisition Regulation 12.212 for civilian agencies and Defense Federal Acquisition Regulation Supplement 227.7202 for military agencies, use of the Software is further restricted by these Terms of Service.
8. EXPORT RESTRICTIONS.
The Software is subject to United States export controls. By downloading the Software, Licensee agrees that Licensee is solely responsible for complying with all United States export control regulations, including the Export Administration Regulations (“EAR”), and sanctions programs, including those administered by the United States Treasury Department’s Office of Foreign Assets Controls (“OFAC”), and all other applicable international trade regulations. Licensee agrees that Licensee will not download or use the Software without all required approvals in any proscribed destination (including Cuba, Iran, North Korea, Sudan, and Syria), on behalf of any proscribed entity or person, for any proscribed end use, or in any other manner contrary to these export regulations and sanctions programs. By downloading or using the Software, Licensee represents and warrants that Licensee is not a proscribed end-user or utilizing this Software for a proscribed end use under these regulations.
The provisions of Sections 1-5 and 7-15 shall survive any termination or expiration of this Agreement.
Licensee agrees to hold harmless and indemnify Kobetron and its subsidiaries, affiliates, officers, agents, and employees from and against any claim, suit or action arising from or in any way related to Licensee’s use of the Software or Licensee’s violation of the Terms and Conditions of this Agreement, including any liability or expense arising from all claims, losses, damages, suits, judgments, litigation costs and attorneys’ fees, of every kind and nature. In such a case, KOBETRON will provide Licensee with written notice of such claim, suit or action.
11. DISCLAIMER OF WARRANTIES.
LICENSEE EXPRESSLY UNDERSTANDS AND AGREES THAT:
a) LICENSEE’S USE OF THE SOFTWARE IS AT LICENSEE’S SOLE RISK.
THE SOFTWARE IS PROVIDED ON AN “AS IS” BASIS AND WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, KOBETRON EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
b) KOBETRON AND ITS LICENSORS MAKE NO WARRANTY
(i) THAT THE SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS,
(ii) THAT THE SOFTWARE WILL BE ERROR-FREE OR BUG-FREE,
(iii) REGARDING THE SECURITY, RELIABILITY, TIMELINESS, OR PERFORMANCE OF THE SOFTWARE, AND
(iv) THAT ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
c) ANY CONTENT, DATA OR MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SOFTWARE IS DONE AT LICENSEE’S OWN RISK AND LICENSEE WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO LICENSEE’S COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH CONTENT OR MATERIAL.
d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY LICENSEE FROM KOBETRON OR ANY THIRD PARTY OR THROUGH THE SOFTWARE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS AND CONDITIONS OF THIS AGREEMENT.
12. LIMITATION OF LIABILITY.
LICENSEE EXPRESSLY UNDERSTANDS AND AGREES THAT KOBETRON SHALL NOT BE LIABLE TO LICENSEE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF KOBETRON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM:
a) THE USE OR THE INABILITY TO USE THE SOFTWARE OR TO ACCESS CONTENT OR DATA;
b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES;
c) UNAUTHORIZED ACCESS TO OR ALTERATION OF LICENSEE’S TRANSMISSIONS OR DATA; OR
d) ANY OTHER MATTER RELATING TO THE SOFTWARE. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING A FAILURE OF
ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW. UNDER NO CIRCUMSTANCES SHALL KOBETRON
OR ANY THIRD PARTY WHO MAKES ITS SOFTWARE OR CONTENT OR DATA AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SOFTWARE BE LIABLE
TO LICENSEE OR ANY USER ON ACCOUNT OF LICENSEE’S USE OR MISUSE OF THE SOFTWARE OR SUCH THIRD PARTY SOFTWARE OR CONTENT OR DATA. SUCH LIMITATION OF LIABILITY SHALL APPLY TO PREVENT RECOVERY OF DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, AND PUNITIVE DAMAGES WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEKOBETRONGENCE), OR OTHERWISE, (EVEN IF KOBETRON AND/OR A THIRD PARTY SOFTWARE OR CONTENT OR DATA PROVIDER HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM THE USE OR MISUSE OF, INABILITY TO USE, OR RELIANCE ON THE SOFTWARE AND ALL THIRD PARTY SOFTWARE OR CONTENT OR DATA MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SOFTWARE, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SOFTWARE AND ANY THIRD PARTY SOFTWARE OR CONTENT OR DATA MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SOFTWARE (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). SUCH
LIMITATION SHALL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.
13. EXCLUSIONS AND LIMITATIONS.
NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO LICENSEE. LICENSEE MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION.
14. NO THIRD PARTY BENEFICIARIES.
Licensee agrees that there shall be no third party beneficiaries to this Agreement.
15. MISCELLANEOUS PROVISIONS.
a) Choice of Law and Forum. This Agreement will be governed by and construed in accordance with the laws of the State of New Jersey, without giving effect to the conflict of laws provisions of New Jersey or Licensee’s actual state or country of residence. If for any reason a court of competent jurisdiction finds any provision or portion of the Terms and Conditions of this Agreement to be unenforceable, the remainder of these Terms and Conditions will continue in full force and effect.
b) Waiver and Severability. The failure of Kobetron to exercise or enforce any right or provision of the Terms and Conditions of this Agreement shall not constitute a waiver of such right or provision. If any provision of the Terms and Conditions of this Agreement are found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms and Conditions of this Agreement shall remain in full force and effect.
c) Statute of Limitations. Licensee agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Software or the Terms and Conditions of this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
d) The Terms and Conditions of this Agreement constitute the entire agreement between the parties with respect to the subject matter hereof and supersede and replace all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter.
Any waiver of any provision of these Terms and Conditions of this Agreement will be effective only if in writing and signed by Kobetron.
LICENSEE KOBETRON, LLC