This End User License Agreement (the “Agreement”) is a legally enforceable contract between You (either an individual or an entity) and Bankai Blockchain LLC regarding the use of the “Software”.
BY CLICKING “I ACCEPT” BUTTON BELOW OR BY DOWNLOADING, INSTALLING OR OTHERWISE USING THE SOFTWARE, YOU CONSENT TO BE LEGALLY BOUND BY ALL THE TERMS AND CONDITIONS OF THE AGREEMENT. IF YOU ARE ENTERING INTO THE AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THE AGREEMENT, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH ANY OF THE TERMS OF THE AGREEMENT, YOU MUST NOT ACCEPT THE AGREEMENT AND NOT USE THE SOFTWARE.
“Documentation” means explanatory materials in printed, electronic or online form accompanying the Software in English and other languages, if available.
“Bankai Blockchain LLC.” means a Limited Liability Company incorporated under the laws of the State of Delaware, The United States Of America and having its registered office in 16192, Coastal Highway, Lewes, Delaware – 19958, County of Sussex (hereinafter referred as “Company/Bankai/Carriox Cloud” which expression shall, unless repugnant or inconsistent to the subject or the context thereof, mean and included its Subsidiaries, Group Companies, Holding Companies, Sister Concern, Affiliates, successors and permitted assigns.
Cloud Switching/Cloud Billing/Unified Communications/Web Panel/MNP are the products exclusively owned, operated & controlled by Bankai Blockchain LLC
“Software” means the Carriox Cloud’s software program in object code format (i) licensed from Carriox Cloud and purchased from Carriox Cloud or its Authorized Partners, or (ii) embedded in or pre-loaded on Carriox Cloud-branded hardware equipment purchased from Carriox Cloud or its Authorized Partners, in each case including Upgrades and Updates that you install during the applicable Support period. Software may also include additional features or functionality that can be accessed with either a current subscription or active support contract to certain Services as required by the specific offering and subject to the said Terms of Service.
“Support” or “Technical Support” means the support services offered by Carriox Cloud for the support and maintenance of the Software and the Carriox Cloud-branded hardware equipment as further specified in the Carriox Cloud Technical Support and Maintenance Terms.
“Upgrade” means any and all improvements in the Software that are made generally available to Carriox Cloud’s customer base as part of purchased Support and which are not separately priced or marketed by Carriox Cloud.
"Subsidiary" means any entity controlled by you through greater than fifty per cent (50%) ownership of the voting securities.
"High Risk System" means a device or system that requires extra safety functionalities such as fail-safe or fault- tolerant performance features to maintain a safe state where it is reasonably foreseeable that failure of the device or system could lead directly to death, personal injury, or catastrophic property damage. A device or system with a fail-safe feature in the event of failure may revert to a safe condition rather than break down, may include a secondary system that comes into operation to prevent a malfunction, or may operate as a backup in the event of a malfunction. A device or system with a fault-tolerant feature in the event of failure may continue its intended operation, possibly at a reduced level, rather than failing completely. Without limitation, High Risk Systems may be required in critical infrastructure, industrial plants, manufacturing facilities, direct life support devices, aircraft, train, boat or vehicle navigation or communication systems, air traffic control, weapons systems, nuclear facilities, power plants, medical systems and facilities, and transportation facilities.
Authorized Partner means any of Carriox Cloud’s distributors, resellers or other business partners that are authorized by Carriox Cloud in writing to sell Support or the Software license rights granted under this Agreement.
2) GRANT OF LICENSE:
Subject to the terms and conditions of this Agreement, Carriox Cloud hereby grants to you a non-exclusive, non- transferable right to use the Software (for the purpose of this Agreement, to use the Software includes to download, install, and access the Software) solely for your own internal business operations.
The Software, including, without limitation, its object code and source code, whether or not provided to you, is strictly confidential to Carriox Cloud. Carriox Cloud (or its licensors) owns exclusively and reserves all – and you may not exercise any – right, title, and interest in and to the Software, including, without limitation, all intellectual property rights in and to the Software, except to the extent of the limited Software use license granted to you in this Agreement. This Agreement is not an agreement of sale, and no title, intellectual property rights, or ownership rights to the Software are transferred to you pursuant to this Agreement. You acknowledge and agree that the Software and all ideas, methods, algorithms, formulae, processes, and concepts used in developing or incorporated into the Software, all future Updates and Upgrades, and all other improvements, revisions, corrections, bug-fixes, hot-fixes, patches, modifications, enhancements, releases, DATs, signature sets, upgrades, and policy and database updates and other updates in, of, or to the Software, all derivative works based upon any of the foregoing, and all copies of the foregoing are trade secrets and proprietary property of Carriox Cloud, having great commercial value to Carriox Cloud.
3) LICENSE COPY:
Multiple Platforms/Bundles: If the Software supports multiple platforms or if you receive the Software bundled with other software, the total number of devices on which all versions of the Software is installed may not exceed your product entitlement. Certain Software licensed as part of a suite-based Carriox Cloud product may also require the purchase of a separate Carriox Cloud server license in order to use the Software on certain types of servers, in each case as specified in the Documentation.
Payment Term: The License fees shall be paid in advance.
General Restrictions: You may not, and you may not cause or allow any third party to: (i) decompile, disassemble or reverse-engineer the Software; or create or recreate the source code for the Software; (ii) remove, erase, obscure, or tamper with any copyright or any other product identification or proprietary rights notices, seal, or instructional label printed or stamped on, affixed to, or encoded or recorded in or on any Software or Documentation; or fail to preserve all copyright and other proprietary notices in all copies of the Software and Documentation made by you; (iii) lease, lend or use the Software for timesharing or service bureau purposes; sell, market, license, sublicense, distribute, or otherwise grant to any person or entity any right to use the Software except to the extent expressly permitted in this Agreement; or use the Software to provide, alone or in combination with any other product or service, any product or service to any person or entity, whether on a fee basis or otherwise, without limitation, any routine, script, code, or program) having any functional attributes, visual expressions, or other features similar to those of the Software or to compete with Carriox Cloud; (v) except with Carriox Cloud’s prior written permission, publish any performance or benchmark tests or analysis relating to the Software; or (vi) attempt to do any of the foregoing.
Exclusive Remedy: In case of any breach of the above Limited Warranty, as your exclusive remedy and Carriox Cloud’s entire obligation and liability Carriox Cloud will (i) repair or replace the Software.
Exclusion of Warranty: THE ABOVE LIMITED WARRANTY WILL NOT APPLY IF: (i) THE SOFTWARE IS NOT USED IN ACCORDANCE WITH THIS AGREEMENT OR THE DOCUMENTATION, (ii) THE SOFTWARE OR ANY PART THEREOF HAS BEEN MODIFIED OR (iii) A MALFUNCTION IN THE SOFTWARE HAS BEEN CAUSED BY ANY EQUIPMENT OR SOFTWARE NOT SUPPLIED BY CARRIOX CLOUD.
Disclaimer: EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE, THE SOFTWARE IS PROVIDED “AS IS” AND CARRIOX CLOUD MAKES NO REPRESENTATIONS OR WARRANTIES, AND CARRIOX CLOUD DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS, ORAL OR WRITTEN, EXPRESS OR IMPLIED, ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN TRADE, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR SYSTEMS INTEGRATION. WITHOUT LIMITING THE FOREGOING, CARRIOX CLOUD MAKES NO WARRANTY, REPRESENTATION, OR GUARANTEE AS TO THE SOFTWARE’S USE OR PERFORMANCE AND DOES NOT WARRANT, REPRESENT, OR GUARANTEE THAT THE OPERATION OF THE SOFTWARE WILL BE FAIL-SAFE, UNINTERRUPTED, OR FREE FROM ERRORS OR DEFECTS OR THAT THE SOFTWARE WILL PROTECT AGAINST ALL POSSIBLE THREATS.
High Risk Systems Terms: THE SOFTWARE MAY FAIL AND IS NOT DESIGNED, DEVELOPED, TESTED, OR INTENDED TO BE RELIABLE IN THE CONTEXT OF HIGH RISK SYSTEMS. WITHOUT LIMITING ANYTHING ELSE, CARRIOX CLOUD HAS NO RESPONSIBILITY FOR, AND YOU WILL INDEMNIFY AND HOLD HARMLESS CARRIOX CLOUD FROM, ALL CLAIMS, SUITS, DEMANDS, AND PROCEEDINGS ALLEGING, CLAIMING, SEEKING, OR ASSERTING, ANY LIABILITY, LOSS, OBLIGATION, RISK, COST, DAMAGE, AWARD, PENALTY, SETTLEMENT, JUDGMENT, FINE, OR EXPENSES (INCLUDING ATTORNEYS FEES) ARISING FROM OR IN CONNECTION WITH YOUR USE OF THE SOFTWARE ON OR IN A HIGH RISK SYSTEM, INCLUDING, WITHOUT LIMITATION, THOSE THAT (i) COULD HAVE BEEN PREVENTED BY DEPLOYMENT OF FAIL-SAFE OR FAULT-TOLERANT FEATURES TO THE HIGH RISK SYSTEM, (ii) ARE BASED ON A CLAIM, ALLEGATION, OR ASSERTION THAT THE FUNCTIONING OF THE HIGH RISK SYSTEM DEPENDS OR DEPENDED ON THE FUNCTIONING OF THE SOFTWARE OR THAT THE FAILURE OF THE SOFTWARE CAUSED A HIGH RISK SYSTEM TO FAIL.
5) LIMITATION OF LIABILITY:
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, NEGLIGENCE, CONTRACT OR OTHERWISE, SHALL EITHER PARTY BE LIABLE TO THE OTHER UNDER THIS AGREEMENT OR IN CONNECTION WITH ITS SUBJECT MATTER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL, OR EXTRA-CONTRACTUAL DAMAGES OF ANY KIND, LOSS OF GOODWILL, LOSS OF PERSONNEL SALARIES, LOST PROFITS OR REVENUE, DAMAGES DUE TO WORK STOPPAGE AND/OR COMPUTER FAILURE OR MALFUNCTION, AND/OR COSTS OF PROCURING SUBSTITUTE SOFTWARE OR SERVICES, WHETHER OR NOT FORESEEABLE, EVEN IF THE EXCLUSIVE REMEDIES PROVIDED BY THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE AND EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OR PROBABILITY OF SUCH DAMAGES.
REGARDLESS OF WHETHER THE CLAIM FOR SUCH DAMAGES IS BASED IN CONTRACT, TORT AND/OR ANY OTHER LEGAL THEORY, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY FOR DIRECT DAMAGES UNDER THIS AGREEMENT OR IN CONNECTION WITH ITS SUBJECT MATTER EXCEED THE AMOUNT OF TOTAL FEES PAID OR PAYABLE BY YOU FOR THE SOFTWARE GIVING RISE TO SUCH CLAIM DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
No provision of this Agreement shall exclude or limit in any way (i) the liability of either party for death or personal injury caused by negligence or (ii) your liability for excess usage of and/or any breach of Carriox Cloud’s intellectual property rights in the Software.
THE LIMITATION OF LIABILITY IN THIS SECTION IS BASED ON THE FACT THAT END USERS USE THEIR COMPUTERS FOR DIFFERENT PURPOSES. THEREFORE, ONLY YOU CAN IMPLEMENT BACK-UP PLANS AND SAFEGUARDS APPROPRIATE TO YOUR NEEDS IN THE EVENT THAT AN ERROR IN THE SOFTWARE CAUSES COMPUTER PROBLEMS AND RELATED DATA LOSSES. FOR THESE BUSINESS REASONS, YOU AGREE TO THE LIMITATIONS OF LIABILITY IN THIS SECTION AND ACKNOWLEDGE THAT WITHOUT YOUR AGREEMENT TO THIS PROVISION, THE FEE CHARGED FOR THE SOFTWARE WOULD BE HIGHER.
6) INTELLECTUAL PROPERTY INDEMNIFICATION:
Indemnity: Carriox Cloud will indemnify, and, at its election, defend, you against claims asserted against you in a suit or action if: (i) the claim is for direct patent infringement or direct copyright infringement, or for Carriox Cloud’s trade secret misappropriation and (ii) the claim is (A) asserted against the Software, alone and not in combination with anything or (B) a combination of the Software.
Exclusions: Notwithstanding anything else in this Agreement, Carriox Cloud has no obligation to indemnify or defend you for claims asserted, in whole or in part, against: technology or designs that you gave to Carriox Cloud; modifications or programming to Software that were made by anyone other than Carriox Cloud; or the Software’s alleged implementation of some or all of a Standard.
Conditions: As a condition of Carriox Cloud’s obligations under this Section 6, you must provide to Carriox Cloud: (i) prompt written notice of the claim and your agreement to give Carriox Cloud sole control over the defense and settlement of the claim; and (ii) your full and timely cooperation.
Carriox Cloud’s Consent: Carriox Cloud will not be responsible for any cost, expense, or compromise that you make or incur without Carriox Cloud’s prior written consent.
Remedies: Carriox Cloud may, at its sole discretion and at is expense: (i) procure for you the right to continue using the Software; (ii) replace the Software with a non-infringing Software; (iii) modify the Software so that it becomes non- infringing;
Personal Indemnity: The foregoing indemnity is personal to you. You may not transfer or to anyone, including your customers.
Exclusive Remedy: The indemnity section states Carriox Cloud’s entire obligation and your exclusive remedy for claims of patent or copyright infringement, or trade secret misappropriation, made in whole or part against the Software.
Without prejudice to your payment obligations, you may terminate your license at any time by uninstalling the Software. Carriox Cloud may terminate your license in the event that you materially breach the terms of this Agreement and you fail to cure such breach within thirty (30) days of receiving notice of such breach. Upon such termination, you shall promptly return or destroy all copies of the Software and Documentation.
We can suspend/terminate the services upon giving you 48 hours of notice for non-payment of requisite License fees. Any suspension/termination shall not prejudice our other rights and remedies available at law and equity including but not limited to recovery of our outstanding license fees/payment.
8) “FREE” OR “OPEN-SOURCE” SOFTWARE:
The Software may include components (including, without limitation, programs, applications, tools, utilities, libraries, and other programming code) that are made available from third parties under a free or open source software licensing model (“FOSS Code”). FOSS Code components included with the Software are redistributed by Carriox Cloud under the terms of the applicable FOSS Code license for such component; your receipt of FOSS Code components from Carriox Cloud under this Agreement neither enlarges nor curtails your rights or obligations defined by the FOSS Code license applicable to the FOSS Code component. Copies of the FOSS Code licenses for FOSS Code components included with Software are included with or referenced in the Software’s Documentation.
9) PRIVACY AND COLLECTION OF PERSONAL OR SYSTEM INFORMATION:
The Software, Support or service subscription may employ applications and tools to collect personally identifiable, sensitive or other information about you and users (e.g., including, without limitation, your and users’ name, address, e-mail address and payment details), their computers, files stored on their computers, or their computers’ interactions with other computers (e.g., including, without limitation, information regarding network, licenses used, hardware type, model, hard disk size, CPU type, disk type, RAM size, 32-bit or 64-bit architecture, operating system types, versions, locale, BIOS version, BIOS model, total scanners deployed, database size, system telemetry, device ID, IP address, location, content, Carriox Cloud products installed, Carriox Cloud components, processes and services information, frequency and details of update of Carriox Cloud components, information about third party products installed, extracts of logs created by Carriox Cloud, usage patterns of Carriox Cloud products and specific features, etc.) (collectively, “Data”).
The collection of this Data may be necessary to provide you and users with the relevant Software, Support or service subscription functionalities as ordered (e.g., including, without limitation, detecting and reporting threats and vulnerabilities on your and users’ computer network), to enable Carriox Cloud to improve our Software, Support or service subscription (e.g., including, without limitation, content synchronization, device tracking, troubleshooting, etc.), and to further or improve overall security for you and users. You may be required to uninstall the Software or disable Support or its service subscription to stop further Data collection that supports these functions.
Upon request of Carriox Cloud, you need to provide restricted access to license file on your server for the purpose of Carriox Cloud’s compliance audit. Any variation in license code may make Carriox Cloud eligible to instigate appropriate action.
11) EXPORT REGULATIONS.
You shall comply with applicable export and import laws and regulations for the jurisdiction in which the Software will be imported and/or exported. You shall not export the Software to any individual, entity or country prohibited by applicable law or regulation. You are responsible, at your own expense, for any local government permits, licenses or approvals required for importing and/or exporting the Software. If Carriox Cloud receives notice that you are or you become identified as a sanctioned or restricted party under applicable law, then Carriox Cloud will not be obligated to perform any of its obligations under this license if such performance would result in violation of the sanctions or restrictions.
12) VENUE AND JURISDICTION:
Claims relating to this Agreement, to the use of this Software, are governed by the laws of the State of New York, USA. You hereby unconditionally, voluntarily and irrevocably consent to submit to the exclusive jurisdiction of the courts situated in New York, USA, in any claim or dispute concerning, relating to, or arising from this Agreement. You agree not to plead forum non conveniens in any such action and you consent to service of process.
Any and all dispute arising out of this agreement shall be settled under the Arbitration Rules pertaining to American Arbitration Association. Language of Arbitration shall be in English and Place of Arbitration shall be New York, United States of America.
Each party hereto acknowledges that by reason of its relationship with the other party hereunder, it may have access to confidential information and materials concerning the other party’s business, technology, and/or products that is confidential to the other party (“Confidential Information”). Each party’s Confidential Information is of substantial value to the party, which value could be impaired if such information was disclosed to third parties or used in violation of this Agreement. Written or other tangible Confidential Information must at the time of disclosure be identified and labeled as Confidential Information belonging to the disclosing party. When disclosed orally or visually, Confidential Information must be identified as confidential at the time of the disclosure, with subsequent confirmation in writing within fifteen (15) days after disclosure. Each party agrees that it will not use in any way for its own account or the account of any third party, such Confidential Information, except as authorized under this Agreement, and will protect Confidential Information at least to the same extent as it protects its own Confidential Information and to the same extent that a reasonable person would protect such Confidential Information. Neither party may use the other party’s Confidential Information except to perform its duties or exercise its rights under this Agreement. The Confidential Information restrictions will not apply to Confidential Information that is (i) already known to the receiving party at the time of access hereunder, (ii) becomes publicly available through no wrongful act of the receiving party, (iii) independently developed by the receiving party without benefit of the disclosing party’s Confidential Information, (iv) has been rightfully received from a third party not under obligation of confidentiality or (v) is required to be disclosed by law, provided the party compelled to disclose the Confidential Information provides the party owning the Confidential Information with prior written notice of disclosure adequate for the owning party to take reasonable action to prevent such disclosure, where reasonably possible. Unless otherwise agreed to by both parties, upon termination of this Agreement or an applicable Addendum, each party will return the other party’s Confidential Information.
14) GENERAL PROVISIONS.
Except for actions for non-payment or breach of Carriox Cloud’s proprietary rights in the Software and Documentation, no action, regardless of form, arising out of this Agreement may be brought by you after the completion of Warranty period.
Any terms of this Agreement which by their nature should survive the termination of this Agreement shall survive such termination.
Carriox Cloud may assign this Agreement, in whole, at any time subject to your prior written consent; provided, however, any assignment resulting from or as part of a merger, consolidation, acquisition of all or substantially all of the assets of Carriox Cloud, or internal restructuring or reorganization does not require your consent.
This Agreement, including all documents incorporated by reference, represents the entire agreement between the parties and expressly supersedes and cancels any other communication, representation or advertising whether oral or written, on the subjects herein. If you issue an order to an Authorized Partner or to Carriox Cloud and the terms and conditions of the order conflict with the terms and conditions of this Agreement then the terms and conditions specified in this Agreement shall control. No terms or conditions of any pre-printed or boilerplate purchase order of yours or other document of yours will govern the transactions contemplated by this Agreement. This Agreement may not be modified except by a written addendum issued by a duly authorized representative of Carriox Cloud. No provision hereof shall be deemed waived unless such waiver shall be in writing and signed by Carriox Cloud. If any provision of this Agreement is held invalid, unenforceable, invalid, or prohibited under law, then such provision will be deemed restated to reflect the original intention of the parties as nearly as possible in accordance with applicable law and the remainder of this Agreement shall continue in full force and effect.
All notices, requests, demands and determinations for Carriox Cloud under this Agreement (other than routine operational communications) shall be sent to: the applicable entity address in Section 1 of this Agreement addressed to “Attention: Accounts Department”.
All other terms and conditions shall be applicable as mentioned in Terms and Conditions on the Carriox Cloud Website.
15) General Restrictions: Customer shall not:
Cause any change in license key code of the software or product purchase.
Remove, erase, obscure, or tamper with any copyright or any other product identification or proprietary rights notices, seal, or instructional label printed or stamped on, affixed to, or encoded or recorded in or on any Software or Documentation; or fail to preserve all copyright and other proprietary notices in all copies of the Software and Documentation made by you.
Resell or re market or lease the product under his brand name.
Modify, adapt, tamper with, translate, or create derivative works of the Software or the Documentation; combine or merge any part of the Software or Documentation with or into any other software or documentation; or refer to or otherwise use the Software as part of any effort to develop software (including, without limitation, any routine, script, code, or program) having any functional attributes, visual expressions, or other features similar to those of the Software or to compete with Carriox Cloud;
Except with Carriox Cloud’s prior written permission, publish any performance or benchmark tests or analysis relating to the Software; or (vi) attempt to do any of the foregoing; be able to sell the product on any other third party platform by any other affiliate.