FORSYTE IT SOLUTIONS - End User License Agreement (Migration Ninja)
IMPORTANT-READ CAREFULLY: THIS END USER AGREEMENT IS A LEGALLY BINDING AGREEMENT BETWEEN YOU (WHETHER AN INDIVIUAL OR ENTITY) AND FORSYTE IT SOLUTIONS, LLC, AND WILL APPLY UNLESS YOU HAVE A CURRENTLY VALID LICENSING AGREEMENT WITH FORSYTE IT SOLUTIONS, THE TERMS OF WHICH EXPRESSLY SUPERCEDE THOSE OF THIS AGREEMENT.
FORSYTE IT SOLUTIONS, LLC IS WILLING TO LICENSE THE PROGRAM TO YOU ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS END USER AGREEMENT AS SUCH TERMS AND CONDITIONS MAY CHANGE FROM TIME TO TIME PURSUANT TO THE PROVISIONS SET FORTH HEREIN. PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY. YOU MAY NOT DOWNLOAD, RUN OR USE THE PROGRAM UNTIL YOU HAVE MANIFESTED YOUR AGREEMENT TO THE TERMS AND CONDITIONS OF THIS END USER AGREEMENT BY CLICKING “I AGREE” BELOW. IF YOU DO NOT CLICK “I AGREE” TO THE TERMS AND CONDITIONS WHERE INDICATED, THEN FORSYTE IT SOLUTIONS, LLC IS UNWILLING TO LICENSE THE PROGRAM TO YOU AND YOU MAY NOT DOWNLOAD, INSTALL OR USE THE PROGRAM.
- FORSYTE IT SOLUTIONS, LLC, a Virginia limited liability company (“FORSYTE”), FORSYTE is engaged in the business of offering a migration services that enables the business client to copy data from one email platform, which is email, calendar, task and contact information, to another. The migration service is provided to its business clients via a license, upon the terms and conditions provided herein, known as “Migration Ninja” (the software, together with any documentation provided by FORSYTE being, the “PROGRAM”), which is licensed to users subject to the terms of this END USER AGREEMENT (hereinafter called the “AGREEMENT”). The PROGRAM is used pursuant to and strictly in accordance with the terms of this Agreement.
- The PROGRAM is the property of FORSYTE and, its licensors (“LICENSORS”), and is protected by U.S. copyright laws and international copyright conventions and treaties. The names, logo, and all graphic designs contained or displayed in the PROGRAM, package materials are also the protected property of FORSYTE or its LICENSORS. Such LICENSORS shall be entitled to enforce this Agreement as an intended third party beneficiary hereof.
- Every organization or individual (hereinafter called the “LICENSEE”) which purchases the PROGRAM or is granted access to use the PROGRAM shall be bound by the terms of this AGREEMENT and agrees that any “purchase” of the PROGRAM constitutes a purchase of a software use license only. The ownership of the content of the PROGRAM and the underlying software, and any subsequent copies in any form or medium, is retained by FORSYTE or its LICENSORS, as applicable.
- The PROGRAM includes with it one or more interfaces, which serve as a gateway to third parties who may administer or host the administration function for the products sold via the PROGRAM (the “Interfaces”). Accordingly, the PROGRAM may contain portions of program code that are owned by a third party LICENSOR (the “Licensors”). All rights, title, and interest in and to PROGRAM are reserved to FORSYTE and its Licensors.
- The LICENSEE shall be entitled to use the PROGRAM (which is in object code format only) as a one-time use pursuant to a user login and password. LICENSEE shall be responsible for protecting and securing its/his/her user login and password to prevent unauthorized access to the PROGRAM. Entity/corporate LICENSEES are responsible for supervising the use of and access to the PROGRAM and any unlawful copying of the PROGRAM of its personnel. The license granted herein is a term-limited license, commencing on the date of purchase and ending on the earlier of LICENSEE’s actual use of the PROGRAM or twelve (12) months from the date of purchase.
- The LICENSEE, may NOT sell, rent, lend, or transfer the PROGRAM or copies of the PROGRAM, in whole or in part, or sell, rent or lend software access information such as passwords, usernames, etc., to any other institution or to any individual or institution not a party to this AGREEMENT. Any service bureau or outsource uses of the PROGRAM is prohibited. The LICENSEE is also advised that the following applies, whether or not included in the PROGRAM:
COPYRIGHT NOTICE: The PROGRAM, including all intellectual property include within the PROGRAM is the property of FORSYTE IT SYSTEMS, LLC. and/or its licensors, and is protected by copyright laws. The use of this Program is subject to this End User Agreement. The PROGRAM and all licensees and users of the PROGRAM may NOT sell, lend, or rent the PROGRAM, copies of it, in whole or in part, or sell, rent or lend access information such as passwords, usernames and the like to other institutions, or individuals not a party to this AGREEMENT.
LICENSEE grants FORSYTE a royalty-free, worldwide, transferable, irrevocable, perpetual license to use or incorporate into the PROGRAM any suggestions, enhancement requests, recommendations or other feedback provided by LICENSEE, relating to the PROGRAM.
- FORSYTE reserves the right to release subsequent versions of the PROGRAM, including to address errors and bugs, which shall be governed by this Agreement, unless separate license terms accompany such update, supplement, or replacement. If such separate terms conflict with this Agreement, then such terms will govern, unless specified otherwise.
- FORSYTE may provide technical support to LICENSEE under a separate technical support agreement. LICENSEE acknowledges that technical support is not provided for problems due to computer viruses, hardware related issues, or conflicts with other software products. To become eligible for support and to receive information concerning any future revisions or versions of the licensed PROGRAM, FORSYTE must have this AGREEMENT, accepted by the LICENSEE, on file.
- The PROGRAM is provided for a single and on-time use by the LICENSEE only. This AGREEMENT is NOT transferable or sub licensable by the LICENSEE.
- FORSYTE expressly forbids decompiling, dissembling, modifying, reverse engineering, or any other derivative application or use of the PROGRAM or any portion thereof, or any derivative production, modification, or translation of the text material displayed in the PROGRAM or any part thereof, including the PROGRAM and the Interfaces. LICENSEE shall not at any time, directly or indirectly (i) attempt to derive or gain access to any software component of the PROGRAM, in whole or in part; (ii) access the PROGRAM in order to develop a competitive product or service; (iii) use the PROGRAM in violation of any applicable rule, law or regulation; (iv) transmit or store any data, or send or upload any material, that contains viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code; (v) interfere with or disrupt the integrity or performance of the PROGRAM or any content contained therein; (vi) use the PROGRAM for any mission or life-critical purposes, including the storage, processing, transfer, analysis, communication or migration of any data which, if lost or corrupted, could endanger the health or safety of any person; or (vii) use the PROGRAM in ways that may be harmful to others or to FORSYTE’s reputation, including the use of the PROGRAM as a destination linked from any unsolicited bulk messages or unsolicited commercial messages.
- Any unauthorized use, including unauthorized copying, temporary or permanent transfer, or granting of unauthorized access, transmission, decompiling, modification or derivative use of the licensed PROGRAM or Interfaces by the LICENSEE, constitutes copyright infringement. Such copying, transfer, or transmission, without the advance written permission of FORSYTE, shall constitute a material breach of the license granted hereunder and may result in denial of future access to the PROGRAM, legal action, or both.
- DISCLAIMER: Calculations may vary. LICENSEE hereby releases FORSYTE from any claims arising out of LICENSEE’s installation or use of the PROGRAM, including the security thereof, and from claims arising out of any reliance on the accuracy or effectiveness of the PROGRAM. LICENSEE agrees to indemnify, defend and hold harmless LICENSOR and LICENSOR’s directors, members, officers, employees, agents and assigns, as applicable, against any and all claims, damages, losses and expenses (including reasonable attorneys’ fees and all other costs), as incurred, arising from (i) any breach of this Agreement by LICENSEE, or (ii) LICENSEE’s use of or failure to use the PROGRAM other than strictly as provided for in this Agreement.
- NPI: LICENSEE acknowledges that its use of the PROGRAM shall enable FORSYTE to have access to certain non-public personal information (“NPI”) of the LICENSEE’s customers. NPI is customer specific information, not publicly available, such as customer’s Social Security Number, credit report, and other information resulting from any transaction with the customer, and may include Protected Health Information (“PHI”) (as defined in the Health Insurance Portability and Accountability Act of 1996 (HIPAA)) . Aggregated data that does not enable identification of the LICENSEE’s individual retail customers and any other extracted data is not NPI.
Each party will, at a minimum, implement and maintain appropriate administrative, technical, and physical safeguards reasonably designed to: (a) ensure against any anticipated threats or hazards to the security or integrity of the NPI; and (b) protect against unauthorized access to or use of the NPI or that could result in substantial harm or inconvenience to the LICENSEE or the individual who is the subject of the NPI.
Each party may disclose NPI, when required, pursuant to any federal or state law or regulation or rules or regulations of any governmental agency, but shall provide the other part with prior written notice. These provisions shall apply during the term and after the termination of this Agreement.
- FORSYTE acknowledges that LICENSEE’s business data belongs to LICENSEE, and FORSYTE respects and supports LICENSEE’s right to protect its business data. By accepting this Agreement, LICENSEE grants to FORSYTE the right to share required business data, including NPI, including with third parties only if sharing the required business data or NPI is necessary for the PROGRAM to operate as intended and is subject to the terms of this Agreement.
- LIMITED WARRANTY:
(b) FORSYTE warrants that when the PROGRAM is used by licensees who have properly licensed the PROGRAM and who are using the PROGRAM in strict compliance with this AGREEMENT and with the instructions contained in any documentation included with the PROGRAM, the PROGRAM will operate in material conformity with the documentation. FORSYTE HEREBY DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE PROGRAM, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NO VIRUS OR MALICIOUS CODE, OR NON-INFRINGEMENT FOR THE PROGRAM OR DOCUMENTATION FORSYTE PROVIDES, AND SUCH WARRANTIES ARE DISCLAIMED BY FORSYTE’S THIRD PARTY LICENSORS. NEITHER FORSYTE, ITS EMPLOYEES, NOR AGENTS, WARRANT THAT THE PROGRAM WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE; NOR DO ANY OF THEM MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PROGRAM. FORSYTE IS NOT RESPONSIBLE FOR ANY LOSS OR CORRUPTION OF DATA OR DAMAGE TO LICENSEE’S SYSTEMS THAT MY OCCUR FROM LICENSEE’S USE OF THE PROGRAM. FURTHER, FORSYTE MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING ANY SOFTWARE OR OTHER PRODUCTS OR APPLICATIONS PROVIDED BY THIRD PARTIES FOR USE WITH THE PROGRAM.
- LIMITATION OF LIABILITY: IN NO EVENT SHALL FORSYTE OR ITS LICENSORS BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, OR INCIDENTAL DAMAGES WHATSOEVER ARISING OUT OF THE USE OF OR INABILITY TO USE THE PROGRAM, DESPITE FORSYTE’S OR SUCH THIRD PARTY LICENSOR’S KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES.
- This AGREEMENT shall be governed by the laws of the Commonwealth of Virginia, without regard to its choice of law provisions. LICENSEE agrees that the license of the PROGRAM shall not be subject to the Uniform Computer Information Transactions Act. The LICENSEE consents to the jurisdiction of the courts sitting in Virginia, and, in any action brought by FORSYTE to enforce this AGREEMENT, waives the defense of the lack of personal jurisdiction by such courts.
- LICENSEE agrees that a violation of any of the provisions of this AGREEMENT by LICENSEE may result in immediate suspension or termination of this Agreement and all rights to use the PROGRAM. In addition to the foregoing, FORSYTE reserves the right, without notice and in its sole discretion, to temporarily suspend LICENSEE’s right to access or use the PROGRAM, if FORSYTE determines that LICENSEE (i) has failed to comply with this Agreement’ (ii) LICENSEE’s use of the PROGRAM poses a security risk to Company, Company’s servers and networks, of the PROGRAM, (ii) may adversely impact the PROGRAM or the systems or user materials of other FORSYTE customers, (iii) may subject Company, or any third party to liability, or (iv) may be fraudulent (collectively, “Unauthorized Activity”). Further, FORSYTE may suspend, modify or terminate the PROGRAM if (i) FORSYTE’s agreement with any applicable third party service provider is terminated or expires, or (ii) if there is a current or future governmental, quasi-governmental, regulatory or other legal requirement or obligation that: (1) subjects or may subject FORSYTE or its subcontractors to any regulation or requirement not generally applicable to businesses operating there, (2) presents or may present a hardship for FORSYTE or its subcontractors to continue operating the PROGRAM, and/or (3) causes FORSYTE to believe these terms conflict with any such requirement or obligation. In the event of any termination of this AGREEMENT, LICENSEE’s rights under this Agreement will immediately cease and LICENSEE shall immediately remove the PROGRAM from its computer systems and cease all use of the PROGRAM.
Because violations of this AGREEMEMENT by LICENSEE may cause irreparable harm and injury to FORSYTE and its LICENSORS, FORSYTE shall be entitled, in addition to any other rights and remedies it may have at law or in equity, to seek an injunction enjoining and restraining LICENSEE and its employees, agents, representatives and/or assignees, as applicable, from doing or continuing to do any such act and any other violations or threatened violations of this AGREEMENT.
- LICENSEE acknowledges that use of the PROGRAM is restricted and limited to authorized users with valid login credentials and agrees that the PROGRAM, including all accompanying documentation, concepts, methodologies, tools, graphics, and all other intellectual property comprising the PROGRAM (collectively, “FORSYTE’s Proprietary Materials”) are proprietary to FORSYTE. Accordingly, LICENSEE agrees that it shall not disclose to any third party, nor allow any third party access to, FORSYTE’s Proprietary Materials, excepting only other authorized users within LICENSEE’s organization.
- Sections 10 through 19 shall survive the expiration or sooner termination of this AGREEMENT.
- LICENSEE acknowledges and agrees that this AGREEMENT shall be in the English language.