iTop Software Endbenutzer-Lizenzvereinbarung (EULA)

End User License Agreement

Last Updated: July 26th, 2022

This End User License Agreement (this "EULA") constitutes a legally binding agreement made between you, whether personally or on behalf of an entity (you), and iTop Inc. ("iTop"). Please read the terms of this EULA carefully before continuing with the download and installation of our product (or "Software").

By downloading, installing, or using the Software, you agree to be bound by the terms of this EULA. If you have any questions about this EULA, please feel free to contact us.

Section 1. Intellectual Property Rights

iTop Inc. and the third parties whose intellectual property has been licensed to iTop Inc. have the exclusive ownership of all right, title, and interest in and to the Software or service licensed to you, including ownership of all the Intellectual Property Rights and Confidential Information pertaining thereto, subject only to the express rights and privileges expressly granted to you under said agreement. The structure, organization, and code of the Software are the valuable trade secrets and confidential information of iTop Inc. and the third parties whose intellectual property has been licensed to iTop Inc. The Software is protected by copyright and other intellectual property laws, and by applicable international treaty provisions. Except as expressly provided in this EULA, you are not granted any intellectual property rights over the Software. You may not make or publish any public statement concerning the Software or iTop Inc. without the prior express written consent of iTop Inc. If you fail to get the necessary authorization but still conduct activities other than as expressly permitted in this EULA, all the legal liabilities, including but not limited to any loss of or damage to any third party will be solely born by you.

Your Content. When you use our Software to create your content, including but not limited to any documents, images, videos, etc. (collectively, "Your Content"), we claim no intellectual property rights to Your Content. In connection to Your Content, you affirm, represent and warrant: (i)you have obtained and are solely responsible for obtaining all consents as may be required by law to post and/or publish any of Your Content relating to third parties; (ii)Your Content will not violate any law or infringe any rights of any third party, including but not limited to any intellectual property rights and privacy rights. We aren’t responsible for the content people post or share via the Software. Our Software takes no responsibility and assumes no liability for any of Your Content that you or any other user or third party posts, sends, or otherwise makes available over the Software. You are solely and fully responsible for Your Content and for all materials that you host, upload, download, create, access, publish, share or transmit using the Software.

Section 2. License Grant and Restrictions

iTop Inc. hereby grants you, subject to the terms and conditions of this Agreement, a limited, non-exclusive, non-transferable and non-sublicensable license to use the number of copies of the Software which you have paid on the corresponding number of computers, running a validly licensed copy of the operating system for which the Software was designed, for your personal use or for the internal business use of your company. You may make a single copy of the Software for archival purposes and may use such copy only when the original copy is not in use.

When using our Software, you agree to be subject to the terms and conditions set forth below:

(a)You will: (i) use the Software only as an integral component of our product; (ii) not use the Software for development, compilation, debugging and similar design-time purposes; (iii) not reverse-compile or decompile, analyze, reverse-engineer, reverse-assemble or disassemble, unlock or otherwise attempt to discover the source code or underlying algorithms of the Software or attempt to do any of the foregoing in relation to the Object Code of the Software; (iv) not modify, adapt, translate or create any derivative works of the Software or merge the Software into any other software;
(b)You will not use, copy, modify, or transfer the Software, or any copy, adaptation, transcription, or merged portion thereof, except as expressly permitted herein by the third parties whose intellectual property has been licensed to iTop Inc.;
(c) Your rights will be non-exclusive, and except as permitted by iTop Inc., non-assignable provided always, however, that the provisions set forth in this Agreement applicable to you must also apply to any permitted assignee;
(d) Your obligations under the said agreement will remain in effect for as long as it continues to possess or use the Software, and such obligations will be for the benefit of and will be enforceable by the third parties whose intellectual property has been licensed to iTop Inc.

Trial Version: If you have received, downloaded, and/or installed a trial version of the Software and are hereby granted an evaluation license for the Software, you may use the Software only for evaluation purpose and only during the single applicable evaluation period, unless otherwise indicated, from the date of the initial installation. Any use of the Software for other purposes or beyond the applicable evaluation period is strictly prohibited.

Section 3. Installation and Scheduled Tasks

The installation process takes a few seconds and cannot be interrupted once started. By installing the Software, you acknowledge that silent installation will be performed to streamline the installation process. The Software may extract files, create and run scheduled tasks, create and run services on your computer. The scheduled tasks are enabled by default and can be disabled by you at any time from the Software settings. But if the skip UAC task is disabled or stopped, you need to manually operate the UAC prompt every time when it is prompted. The Software services may run in the background to deliver updates, automatic services, performance monitoring, and some other long-running functionality. These services can be automatically started when the computer boots and can be paused and restarted, but the program will not function correctly when its services are paused or stopped.

Section 4. Limited Warranty

iTop Inc. warrants and represents to you that the Software will substantially conform to and operate in accordance with its documentation for a period of sixty (60) days from the date you accept the terms of this Agreement and complete the download of the Software (“Warranty Period”). This Limited Warranty applies only if the non-conformance is reported to iTop Inc. during the Warranty Period and if iTop Inc. is able to confirm the substantial non-conformance. It is void if the non-conformance of the Software is the result of accident, abuse, misapplication, or inappropriate use of the Software. The exclusive remedy for breach of this warranty shall be, at iTop Inc.’s option, either (i) the repair or replacement of the Software; or (ii) a refund of the price, if any, which you paid to license the Software.

Section 5. Warranty Disclaimer

SUBJECT TO THE PROVISIONS OF SECTION 4 ABOVE, THE SOFTWARE IS BEING LICENSED ON AN "AS IS" AND “WITH ALL FAULTS” BASIS WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE IS WITH YOU, AND, SHOULD THE SOFTWARE PROVE DEFECTIVE, YOU AND NOT ITOP ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING OR REPAIR. TO THE EXTENT PERMITTED BY LAW, ITOP DISCLAIMS ALL OTHER WARRANTIES ON THE SOFTWARE, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE. FURTHER, ITOP DOES NOT WARRANT OR ASSUME RESPONSIBILITY FOR THE ACCURACY OR COMPLETENESS OF ANY INFORMATION, TEXT, GRAPHICS, LINKS OR OTHER ITEMS CONTAINED WITHIN THE SOFTWARE. ITOP MAKES NO WARRANTIES RESPECTING ANY HARM THAT MAY BE CAUSED BY THE TRANSMISSION OF A COMPUTER VIRUS, WORM, TIME BOMB, LOGIC BOMB, OR OTHER SUCH COMPUTER PROGRAM. ITOP FURTHER EXPRESSLY DISCLAIMS ANY WARRANTY OR REPRESENTATION TO AUTHORIZED USERS OR TO ANY THIRD PARTY. THE DURATION OF ANY STATUTORILY-REQUIRED WARRANTY PERIOD SHALL BE LIMITED TO THE TERM OF THE LIMITED WARRANTY. NOTWITHSTANDING THE FOREGOING, YOU MAY HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE AND COUNTRY TO COUNTRY.

Section 6. Disclaimer of Consequential Damages

UNDER NO CIRCUMSTANCES SHALL ITOP BE LIABLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES WHATSOEVER ARISING OUT OF THE USE OF THE SOFTWARE OR INABILITY TO USE THE SOFTWARE, INCLUDING WITHOUT LIMITATION, COMPUTER FAILURE, WORK STOPPAGE OR ANY OTHER DAMAGES, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES AND COUNTRIES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

Section 7. Limitation on Liability

iTop Inc. shall have no liability with respect to the content of the Software or any part thereof, including but not limited to errors or omissions contained therein, libel, infringements of rights of publicity, privacy, trademark rights, business interruption, personal injury, loss of privacy, moral rights or the disclosure of confidential information. ITOP’S TOTAL LIABILITY SHALL IN NO EVENT EXCEED THE ACTUAL PRICE PAID FOR THE SOFTWARE.

Section 8. Export Control

The United States controls the export of products and information. You agree to comply with such restrictions and not to export or re-export the Software to countries or persons prohibited under the export control laws. By downloading the Software, you are agreeing that you are not in a country where such export is prohibited or are a person or entity to which such export is prohibited. You are responsible for compliance with the laws of your local jurisdiction regarding the import, export or re-export of the Software.

Section 9. Taxes

You shall be responsible for the payment of all sales, use and similar taxes relating to the license of the Software.

Section 10. Government Users

If the Software is downloaded by or on behalf of the United States of America, its agencies and/or instrumentalities ("U.S. Government"), it is provided with Restricted Rights. Use, duplication, or disclosure of the Software by the U.S. Government is subject to restrictions as set forth in the Rights in Technical Data and Computer Software clause of DFARS and any other related applicable U.S. statutes or regulations.

Section 11. Termination

Without prejudice to any other rights, iTop Inc. may terminate this Agreement if you fail to comply with the terms and conditions set forth herein. In such event, you must destroy all copies of the Software in your possession.

Section 12. General Terms

If you live within the United States, the terms of this Agreement shall be governed by the laws of the State of California. If you live outside of the United States, the terms of this Agreement shall be governed by the laws of the Hong Kong Special Administrative Region of the People’s Republic of China. If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term. This Agreement constitutes the entire agreement between you and iTop Inc. with respect to this transaction. Any changes to this Agreement must be made in writing, signed by an authorized representative of iTop Inc.

Section 13. Privacy Policy

iTop Inc. may collect and use information concerning your use of the Software as set forth in its Privacy Policy.
We promise we will not reveal, rent or sell all your information to third parties outside the Software or its controlled subsidiaries and affiliates without your consent.

Section 14. Advertising

You acknowledge that iTop Inc. may at any time use this Software to display advertising or promotion materials to you, including without limitation, the release of third-party advertising, promotion of third-party products and services, or advertising or promotion of iTop Inc.'s other products and services.

iTop Inc. may change, without prior notice to you, the form (including without limitation, the display of third-party advertising on the launch page of this Software), pattern or scope of display, advertising or promotion.

The communications, business contacts, or participation in promotion activity, including the payment and delivery of products or services, or any other terms and conditions, representations and warranties related thereto, between you and advertisers communicated through this Software or otherwise are solely between you and such advertisers, and iTop Inc. is not obliged to review, investigate or examine the advertisements or the advertisers.

Section 15. Claims Resolution

Most customer concerns can be resolved through iTop’s online support center (available at https://www.itopvpn.com/support) or by calling our customer service department at the toll-free number iTop has provided you. In the event that iTop is unable to resolve a complaint to your satisfaction, this section explains how claims can be resolved through mediation, arbitration or litigation. It includes an arbitration provision.

For this section, the words "you" and "iTop" include any corporate parents, subsidiaries, affiliates or related persons or entities. The word "claim" means any current or future claim, dispute or controversy relating to the Product, this Agreement, and this Claims Resolution provision, except for the validity, enforceability or scope of the Arbitration provision. The word "claim" also includes but is not limited to: (i) initial claims, counter-claims, cross-claims and third-party claims; (ii) claims based upon contract, tort, fraud, statute, regulation, common law and equity; (iii) claims by or against any third-party using or providing any product, service or benefit in connection with Agreement; and (iv) claims that arise from or relate to advertisements, promotions or oral or written statements related to the Product. You or iTop may not sell, assign or transfer a claim.

Sending a Claim Notice

Before beginning a lawsuit, mediation or arbitration, you and iTop agree to send a written notice (a claim notice) to each party against whom a claim is asserted, in order to provide an opportunity to resolve the claim informally or through mediation. The claim notice must describe the claim and state the specific relief demanded.

Notice to iTop must include your name, address, the name of the Product at issue, the date of download or purchase of the Product, the email address you previously provided to us, if any, and the license code iTop provided to you, if any. The notice must be sent to supportpdf@itopvpn.com. If the claim proceeds to arbitration, the amount of any relief demanded in a claim notice will not be disclosed to the arbitrator until after the arbitrator rules.

Mediation

In mediation, a neutral mediator helps parties resolve a claim. The mediator does not decide the claim but helps the parties reach agreement.

Before beginning mediation, you or iTop must first send a claim notice. If you live within the United States, within thirty days after sending or receiving a claim notice, you or iTop may submit the claim to JAMS (1-800-352-5267, jamsadr.com), the American Arbitration Association ("AAA") (1-800-778-7879, adr.org), or another mutually agreed upon mediator, for mediation. If you live outside of the United States, you may contact iTop for information on potential mediators. iTop will pay the fees of the mediator.

All mediation-related communications are confidential, inadmissible in court and not subject to discovery. All applicable statutes of limitation will be tolled until termination of the mediation.

Either you or iTop may terminate the mediation at any time. The submission or failure to submit a claim to mediation will not affect your or iTop’s rights under this Claim Resolution provision.

Arbitration

If you live in the United States, you or iTop may elect to resolve any claim by individual arbitration. If you do not live in the United States, this arbitration subsection does not apply to you. In individual arbitration, claims are decided by a neutral arbitrator.

If arbitration is chosen by any party, neither you nor iTop will have the right to litigate that claim in court or have a jury trial on that claim. Further, neither you nor iTop will have the right to participate in a representative capacity or as a member of any class pertaining to any claim subject to arbitration. Arbitration procedures are generally simpler than the rules that apply in court, and discovery is more limited. The arbitrator's decisions are as enforceable as any court order and are subject to very limited review by a court. Except as set forth below, the arbitrator's decision will be final and binding. Other rights you or iTop would have in court may also not be available in arbitration.

Initiating Arbitration

Before beginning arbitration, you or iTop must first send a claim notice. Claims will be referred to either JAMS or AAA, as selected by the party electing arbitration. Claims will be resolved pursuant to this Arbitration provision and the selected organization's rules in effect when the claim is filed, except where those rules conflict with this Arbitration provision. If iTop choose the organization, you may select the other within thirty days after receiving notice of iTop’s selection. Contact JAMS or AAA to begin an arbitration or for other information. Claims also may be referred to another arbitration organization if you and iTop agree in writing or to an arbitrator appointed pursuant to section 6 of the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (the "FAA").

You or iTop may otherwise elect to arbitrate any claim at any time unless it has been filed in court and trial has begun or final judgment has been entered. Either you or iTop may delay enforcing or not exercise rights under this Arbitration provision, including the right to arbitrate a claim, without waiving the right to exercise or enforce those rights.

iTop will not elect arbitration for any claim you file in small claims court, so long as the claim is individual and pending only in that court.

Limitations on Arbitration

If either party elects to resolve a claim by arbitration, that claim will be arbitrated on an individual basis. There will be no right or authority for any claims to be arbitrated on a class action basis or on bases involving claims brought in a purported representative capacity on behalf of the general public, other licensees or other persons similarly situated.

The arbitrator's authority is limited to claims between you and iTop alone. Claims may not be joined or consolidated unless you and iTop agree in writing. An arbitration award and any judgment confirming it will apply only to the specific case and cannot be used in any other case except to enforce the award. Notwithstanding any other provision and without waiving the right to appeal such decision, if any portion of these limitations on Arbitration is deemed invalid or unenforceable, then the entire Arbitration provision (other than this sentence) will not apply.

Arbitration Procedures

This Arbitration provision is governed by the FAA. The arbitrator will apply applicable substantive law, statutes of limitations and privileges. The arbitrator will not apply any federal or state rules of civil procedure or evidence in matters relating to evidence or discovery. Subject to the Limitations on Arbitration, the arbitrator may otherwise award any relief available in court. The arbitration will be confidential, but you may notify any government authority of your claim.

If your claim is for $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents, through a telephonic hearing, or by an in-person hearing. At any party's request, the arbitrator will provide a brief written explanation of the award. The arbitrator's award will be final and binding, except for any right of appeal provided by the FAA; however, any party will have thirty days to appeal the award by notifying the arbitration organization and all parties in writing. The organization will appoint a three-arbitrator panel to decide anew, by majority vote based on written submissions, any aspect of the decision objected to by any party. Judgment upon any award may be entered in any court having jurisdiction.

At your election, any in-person arbitration hearings will take place in the federal judicial district of your residence.

Arbitration Fees and Costs

You will be responsible for paying your share of any arbitration fees (including filing, administrative, hearing or other fees), but only up to the amount of the filing fees you would have incurred if you had brought a claim in a court of general jurisdiction. iTop will be responsible for any additional arbitration fees. At your written request, iTop will consider in good faith making a temporary advance of your share of any arbitration fees, or paying for the reasonable fees of an expert appointed by the arbitrator for good cause.

Arbitration Awards

If the arbitrator rules in your favor for an amount greater than any final offer iTop made before arbitration, the arbitrator's award will include: (i) any money to which you are entitled, but in no case less than $2,000; and (ii) any reasonable attorneys’ fees and costs.

Your Right To Reject Arbitration

You may reject this Arbitration provision by sending a rejection notice to iTop at: supportpdf@itopvpn.com. Your rejection notice must be sent within 30 days after your first download or purchase of the Product. Your rejection notice must state that you reject the Arbitration provision and must include your name, address, the date of download or purchase of the Product, the name of the Product, the email address you previously provided to iTop, if any, and the license code iTop provided to you, if any. If your rejection notice complies with these requirements, this Arbitration provision will not apply to you, except for any claims subject to pending litigation or arbitration at the time you send your rejection notice. Rejection of this Arbitration provision will not affect your other rights or responsibilities under this Agreement. Rejecting this Arbitration provision will not affect your ability to use the Product.

Continuation

This Claims Resolution provision will survive termination of this Agreement or your license to use the Product. If any portion of this Claims Resolution provision, except as otherwise provided in the Limitations on Arbitration provisions above, is deemed invalid or unenforceable, it will not invalidate the remaining portions of this Claims Resolution provision.