I. End User License Agreement for GSMK CryptoPhone Software
This End-User License Agreement (“EULA”) is a legal agreement between You (either an individual person or a single legal entity, who will be referred to in this EULA as “You”) and GSMK mbH, Marienstrasse 11, 10117 Berlin, Germany and its possible successors in rights, hereinafter referred to as “GSMK” or the “Company” for the “Software” as that term is defined herein. By installing, copying, downloading, accessing or otherwise using the Software, You agree to be bound by the terms of this EULA. If You do not agree to the terms of this EULA, do not install, access or use the Software; instead, You should return it to Your place of purchase for a full refund.
The Software is provided in three forms:
- As source code;
- As pre-compiled binary code archives;
- As pre-compiled binary code pre-installed or embedded in hardware.
Unless expressly stated to the contrary herein, all terms, conditions, restrictions and limitations set forth in this EULA apply to all forms of the Software including, without limitation, those described above. Additional terms, conditions restrictions and limitations may apply to one or more of those forms.
The licensing terms which apply to any given form are determined solely by GMSK’s designation of the form in question. To the extent that any binary form contains uncompiled source code or other non-binary elements or components, the licensing terms which apply to that form as a whole apply to its non-binary components as well.
II. Software License
The Software is protected by intellectual property laws and treaties. The Software is licensed, not sold. Other Software not owned by GSMK, which has been supplied together with a device, are subject to separate license(s) granted by the owners of their respective rights. Hardware and services are provided according to terms and conditions defined elsewhere.
1. Grant of License
The license rights described in this Section are subject to all other terms and conditions of this EULA. Company hereby grants to You a limited, revocable, non-exclusive, non-transferable license to use the Software for personal, non-commercial purposes, subject to the following terms.
You may: (a) install the Software on one handheld computer and use such Software for personal, non-commercial purposes only; and (b) make one copy of the Software for back-up, archival purposes, provided such copy contains all of the original proprietary notices provided with or otherwise relating to such Software. In addition,
You may also:
1. Source code: Subject to the terms of this agreement, You are granted the right, free of additional cost, (a) to download and make copies of the source code form solely for the purpose of Your own review of the code, and (b) to compile it solely for the purpose of comparing the compiled version to the binary code provided by GSMK.
2. Pre-compiled binary code archives: Subject to the terms of this agreement, You are granted the right, free of charge, to download and make integral copies of the pre-complied binary code archives solely (a) for the purpose of running it on a non-hand held computer and (b) for backup purposes. Specifically, You may run the pre-complied binary code archives on a stationary computer or a laptop, but not on aPDA or other palm- or pocket-sized computing device.
3. Software installed or embedded in hardware: Subject to the terms of this agreement, You are granted the right (a) to run the Software on the device on which it was originally supplied by GSMK (“the device”) and (b) the right to transfer this license, on condition that You simultaneously transfer the rights to the device to the same person.
You may not use, or permit other individuals or entities to use, the Software except under the terms expressly listed above. Without limiting the foregoing sentence, You shall not, and shall not permit any other individual or entity to: (a) use the Software for service bureau, time-sharing or other similar purposes or for commercial exploitation; (b) modify, translate, reverse engineer, decompile, disassemble (except to the extent that this restriction is expressly prohibited by law) or create derivative works based upon the Software; © copy the Software (except as permitted above); (d) display, publicly perform, publish, reproduce, rent, lease, sell, offer to sell, distribute (including commercial hosting services to third parties), or otherwise transfer rights to the Software; (e) use the Software in such a way that it conflicts with or violates the proprietary or intellectual property rights of a third party; (f) use the Software to engage in any unfair or deceptive practices, or in contravention of any applicable state, local, federal or foreign laws or regulations, including laws and regulations regarding telemarketing, customer solicitation (including fax and/or e-mail solicitation), data protection and privacy; or (g) remove any proprietary notices, labels, warnings, restrictions or licenses on or relating to the Software.
All rights not expressly granted are reserved by Company. All title and intellectual property rights in and to the Software (including but not limited to any algorithms or ciphers incorporated into the Software), and any copies of the Software are owned by Company and/or its suppliers and licensors. All elements of the Software are protected by copyright, trademark, trade dress, moral rights and other laws relating to intellectual property rights. All rights are reserved under International, European and Pan-American Copyright Conventions.
If in the future a different license agreement is published or otherwise circulated, signed with a valid digital signature corresponding to the public key included below, that agreement may, at Your option, supersede this agreement in its entirety
2. Description of Other Rights and Limitations
Copy Protection. The Software may include copy protection technology to prevent the unauthorized copying of the Software or may require original media for use of the Software on the Device. It is illegal to make unauthorized copies of the Software or to circumvent any copy protection technology included in the Software, and You may not do so. Separation of Component Parts. The Software is licensed as a single product. Its component parts may not be separated for use on more than one Device.
Trademarks. This EULA does not grant You any rights in connection with any trademarks or service marks of Company.
Support Services. Company or another designated entity may provide You with support services related to the Software (“Support Services”) Use of Support Services, if any, is governed by the policies and programs described in the user manual. Any supplemental Software code provided to You as part of the Support Services are considered part of the Software and subject to the terms and conditions of this EULA. You acknowledge and agree that Company may use technical information You provide as part of the Support Services for its business purposes, including for product support and development. Company will not utilize such technical information in a form that personally identifies You.
Termination. This EULA will automatically terminate if You fail to comply with any of the terms and conditions described in this Agreement. No notice from Company shall be required to effectuate such termination. On termination, You must destroy all copies of the Software. Without prejudice to any other rights, Company may terminate thisEULA if You fail to comply with the terms and conditions of this EULA.
Should You have any questions concerning this EULA, please contact Company at office@GSMK.de
This license does not grant You any right to any enhancement or upgrade of the Standard Software. If the Software is labelled as an upgrade, You must be properly licensed to use a product identified by Company as being eligible for the upgrade in order to use the Software. A Software labelled as an upgrade replaces or supplements (and may disable) the product that formed the basis for Your eligibility for the upgrade. You may use the resulting upgraded product only in accordance with the terms of this EULA and any supplemental EULA. If the Software is an upgrade of a component of a package of Software programs that You licensed as a single product, the Software may be used and transferred only as part of that single product package and may not be separated for use on more than one Device.
4. Export Restrictions
You agree to comply with all applicable international and national laws that apply to the Software, including the EU export Regulations and the U.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. You acknowledges that none of the Software or other underlying information or technology may be downloaded or otherwise exported or re-exported into (or to a national or resident of) countries that are subject to export restrictions under the European Community regime for the control of exports of dual-use items and technology, or any other country to which the U.S. or EU have embargoed goods, or anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders, or on the EU list of embargoed persons or organizations. By using the Software, You agree to the terms and conditions of this Section and represent and warrant that You are not a national or resident of any such country or on any such list, and will otherwise comply with any applicable export regulation of the United States, the EU or any other country or governing body.
5. Warranty and Liability Disclaimers
THE SOFTWARE IS PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY AND ITS LICENSORS AND SUPPLIERS DISCLAIM ALL WARRANTIES OF ANY KIND (WHETHER EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE), INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF QUALITY, PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. COMPANY AND ITS LICENSORS AND SUPPLIERS ALSO DISCLAIM ALL WARRANTIES OF CONTENT, QUALITY, ACCURACY, COMPLETENESS, EFFECTIVENESS, TIMELINESS, RELIABILITY, OR USEFULNESS. THE SOURCE CODE IS PROVIDED TO YOU FOR YOUR REVIEW, SO THAT YOU MAY ASSESS THE QUALITY OF THE SOFTWARE AND ITS FITNESS FOR ANY PARTICULAR PURPOSE. BY ACCEPTING THE TERMS OF THIS EULA, YOU AGREE THAT YOU ALONE ARE RESPONSIBLE FOR THE CORRECT ASSESSMENT OF THE SOFTWARE’S SUITABILITY FOR YOUR PURPOSES AND YOU AGREE TO ABSTAIN FROM ANY AND ALL CLAIMS AGAINST GSMK RESULTING FROM THE USE OR INABILITY TO USE THE SOFTWARE. SPECIFICALLY, YOU AGREE NOT TO ASSERT CLAIMS DUE TO LOSS OF INFORMATION, PROPERTY, REVENUE, HEALTH OR LIFE, REGARDLESS OF THE MANNER IN WHICH THE DAMAGE WAS CAUSED AND REGARDLESS OF WHETHER GSMK COULD HAVE PREVENTED IT OR NOT. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE REMAINS WITH YOU. YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU ACKNOWLEDGE THAT THE SOFTWARE MAY INCLUDE ERRORS AND THAT YOU WILL USE COMMON SENSE AND FOLLOW STANDARD SAFETY PRECAUTIONS IN CONNECTION WITH YOUR USE THEREOF. TO THE EXTENT ALLOWED BY APPLICABLE LAW, ANY IMPLIED WARRANTIES THAT CANNOT BE DISCLAIMED ARE LIMITED TO NINETY (90) DAYS FROM THE DATE OF INITIAL DOWNLOAD OR INSTALLATION OF THE SOFTWARE BY OR ON BEHALF OF YOU. IN ANY EVENT, SHOULD GSMK NEVERTHELESS BE FOUND LIABLE FOR DAMAGES, YOU AGREE TO SUCH LIABILITY BEING LIMITED TO THE AMOUNT THAT YOU PAID FOR THE SOFTWARE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY OR ITS SUPPLIERS OR LICENSORS BE LIABLE FOR ANY CLAIM, DEMAND OR ACTION (IRRESPECTIVE OF THE NATURE OR THE CAUSE OF THE CLAIM, DEMAND OR ACTION) ALLEGING ANY LOSS, INJURY OR DAMAGES ARISING OUT OF THIS AGREEMENT OR WHICH MAY RESULT FROM THE USE OR POSSESSION OF THE SOFTWARE ORANY ASSOCIATED HARDWARE.
6. Exclusion of Incidental, Consequential and Certain Other Damages
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY OR ITS SUPPLIERS OR LICENSORS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES EVEN IF COMPANY OR ANY SUPPLIER OR LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7. Illegality or Unenforceability
In certain jurisdictions, this license agreement may be unlawful or unenforceable, in part or in whole. GSMK declines to license the Software in such jurisdictions. By accepting this agreement You represent and guarantee that You are not subject to a jurisdiction where this agreement can be circumvented or avoided, or is illegal or unenforceable, in whole or in part.
8. Applicable Law
Disputes related to this agreement shall be brought before either (a) the appropriate courts in Berlin, Germany, or (b) the courts of the jurisdiction in which You reside or in which You purchased the Software. The choice of forum belongs to the defendant, provided that he or she agrees to fully subject himself or herself to the laws of the Federal Republic of Germany. Counter-actions related to and depending upon an existing action shall be brought before the courts of the same jurisdiction as the original action. The enforcement of existing rulings can be requested in any jurisdiction. The laws of the Federal Republic of Germany shall govern the rights and obligations of the parties under this EULA, without reference to its choice of law provisions. The UN Convention on Contracts shall not govern such rights and obligations.
The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter, nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of such or any other provision.
Neither this EULA nor any of Your rights or obligations hereunder may be assigned by You in whole or in part without the prior written approval of Company. Any assignment in derogation of the foregoing may, at the sole and unfettered obligation of the Company, be null and void.
If any part of this EULA is for any reason found to be unenforceable, all other parts nevertheless remain enforceable as long as a party’s rights under this EULA are not materially affected. In lieu of the unenforceable provision, the parties will substitute or add as part of this EULA a provision that will be as similar as possible in economic and business objectives as was intended by the unenforceable provision.
12. Entire Agreement
This EULA (including any addendum or amendment thereto) is the entire agreement between You and the Company relating to the Software and the support services (if any) and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Software or any other subject matter covered by this EULA. To the extent the terms of any Company policies or programs for support services conflict with the terms of this EULA, the terms of this EULA shall control.
You are about to enter into this end user license agreement for the Company Software by breaking the seals of the container enclosing the device containing the software. If You do not intend to enter into this legal agreement for use of the Software, please do not break the seals, or use the device. Instead, promptly contact GSMK or the vendor(s) from whom you purchased the device for instructions on return of the sealed, unused device(s) for a refund.