Terms and Conditions
Please Read Carefully:
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BASTILON LICENSE AGREEMENT
This End User License Agreement (“Agreement”), is a legally binding agreement between Info Bastion (“Info Bastion”) and you, the person . (“Customer” or “you”) that has ordered the Bastilon software (“Software” or “Bastilon”) from Info Bastion.
INFO BASTION PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT THE CUSTOMER ACCEPTS AND COMPLIES WITH THEM. THE INDIVIDUAL ACCEPTING THESE TERMS AND CONDITIONS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, REPRESENTS AND WARRANTS THAT THEY HAVE FULL AUTHORITY TO BIND THE CUSTOMER TO THIS AGREEMENT. BY EITHER CLICKING THE “ACCEPT” BUTTON OR USING THE SOFTWARE YOU ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, INFO BASTION DOES NOT LICENSE THE SOFTWARE TO YOU AND YOU MUST NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE.
1. Grant of License
Subject to the terms and conditions of this EULA, Info Bastion grants to you a limited term, non-exclusive, non-transferable license to access and use the Bastilon software solely for use in accordance with this EULA. Info Bastion owns all right, title, and interest in the Bastilon software, including all copyrights, trademarks, patents and trade secrets. The terms and conditions of this EULA applies to any Modifications, unless Info Bastion provides you with additional or different terms along with the Modifications.
2. Account Restrictions.
(a) During the subscription or order term, the customer may install and run copies of Bastilon solely for internal use up to the maximum quantity in the applicable Order.
(b) The customer may maintain a number of individual user accounts on the Customer’s instance of Bastilon up to the maximum quantity of licenses in the applicable order.
(c ) Every user must have a separate license.
3. Use Restrictions
The Customer shall not:
(a) modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Software or any part of the software
(b) Combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs
(c) Reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software or any part thereof
(d) Remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Software
(e) Rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software or any features or functionality of the Software, to any third party for any reason
(f) Use the Software in violation of any federal, state, or local law, regulation or rule
(g) Use the Software for purposes of competitive analysis of the Software, the development of a competing software product or service or any other purpose that is to Info Bastion's commercial disadvantage.
4. Responsibility for Use of Software.
The Customer is responsible and liable for all uses of the Software through access provided by the Customer, directly or indirectly. The Customer is also responsible and liable for all actions and failures to take required actions with respect to the Software by itself or by any other person to whom the Customer may provide access to or use of the Software, whether such access or use is permitted by or in violation of this Agreement.
5. Compliance Measures.
(a) The Software may contain technological copy protection or other security features designed to prevent unauthorized use of the Software, including features to assess the number of licenses in use. The Customer shall not, and shall not attempt to, remove, disable, circumvent or otherwise create any workaround to any such copy protection or security features.
(b) On Info Bastion's written request, the Customer shall conduct a review of its use of the Software and certify to Info Bastion in a written instrument that it is in full compliance with this Agreement.
6. Maintenance and Support.
Info Bastion may offer support services pursuant to a separate written agreement. No support services are offered under this EULA..
7. Intellectual Property Rights.
The Customer acknowledges and agrees that the Software is provided under license, and not sold, to Customer. Customer does not acquire any ownership interest in the Software under this Agreement, or any other rights thereto other than use in accordance with the license granted, and subject to all terms, conditions and restrictions, under this Agreement. Info Bastion reserves and shall retain its entire right, title, and interest in and to the Software and all intellectual property rights arising out of or relating to the Software, except as expressly granted to the Customer in this Agreement. The Customer shall safeguard all Software (including all copies thereof) from infringement, misappropriation, theft, misuse or unauthorized access. The Customer shall promptly notify Info Bastion if Customer becomes aware of any infringement of Info Bastion's intellectual property rights in the Software and fully cooperate with Info Bastion in any legal action taken by Info Bastion to enforce its intellectual property rights.
8. Payment.
The Customer shall pay all fees associated with the Software licensed and any services purchased as set forth in the applicable order form. Except as expressly set forth herein, all fees are non-refundable once paid.
9. Term and Termination.
(a) This Agreement and the license granted hereunder shall remain in effect for the term set forth in the order form as agreed upon by Info Bastion and Customer and will remain in effect until expiration or terminated as set forth herein (the “Term”).
(b) Info Bastion may terminate this Agreement, effective upon written notice to The Customer, if Customer, breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after Info Bastion provides written notice thereof.
(c) Info Bastion may terminate this Agreement, effective immediately, if Customer files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property.
(d) Upon expiration or earlier termination of this Agreement, the license granted shall also terminate, and Customer shall cease using and delete or disable all applications of the Software. No expiration or termination shall affect Customer's obligation to pay all Customer fees that may have become due before such expiration or termination, nor entitle Customer to any refund.
10. Limited Warranties, Exclusive Remedy, and Disclaimer.
(a) Each party to this Agreement represents and warrants that it has the full right power and authority to enter into this Agreement and that they will comply with all laws and regulations applicable to the delivery and use of the Software.
(b) THE SOFTWARE IS PROVIDED TO THE CUSTOMER “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, INFO BASTION ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SOFTWARE. THIS INCLUDES ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION INFO BASTION PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED SOFTWARE WILL MEET THE CUSTOMER'S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
11. Limitation of Liability.
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:
(a) IN NO EVENT WILL INFO BASTION OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE SERVICE PROVIDERS, BE LIABLE TO THE CUSTOMER OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY OR INABILITY TO USE THE SOFTWARE, LOST REVENUES OR PROFITS, DELAYS, INTERRUPTION OR LOSS OF SERVICES, BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA, LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION OR SHUTDOWN, FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION, FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION, SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION OR BREACHES IN SYSTEM SECURITY, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT INFO BASTION WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) IN NO EVENT WILL INFO BASTION AND ITS AFFILIATES', INCLUDING ANY OF ITS OR THEIR RESPECTIVE SERVICE PROVIDERS', COLLECTIVE AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO INFO BASTION PURSUANT TO THIS AGREEMENT FOR THE SOFTWARE.
(c) THE LIMITATIONS SET FORTH ABOVE SHALL APPLY EVEN IF THE CUSTOMER'S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
12. Export Regulation.
The Software may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations. The Customer shall not, directly or indirectly, export, re-export or release the Software to, or make the Software accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. The Customer shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Software available outside the U.S.
13. U.S. Government Restricted Rights.
The Software is commercial computer software developed solely at private expense subject to RESTRICTED RIGHTS as that term is defined in FAR 52.227-19 and DFARS 227-7202. In accordance with FAR 12.212 (Computer software) or DFARS 227.7202 (Commercial computer software and commercial computer software documentation) or FAR 12.211/DFARS 227.7102 (Technical data), as applicable, the use, duplication and/or disclosure of the Software (including its documentation and technical data) by the U.S. Government, its agencies or instrumentalities is solely governed by the terms of this Agreement, which is in lieu of, and supersedes, any other FAR, DFARS, or other clause, provision, or supplemental regulation that addresses U.S. Government rights in computer software or technical data under this Agreement, except to the extent that any term or condition herein is inconsistent with U.S. Federal Law. If the U.S. government requires any rights that are not conveyed under this Agreement, those rights will be separately negotiated and will be set forth in a separate written license or in a written addendum to this Agreement.
14. Submissions.
Customer acknowledges and agrees that any questions, comments, suggestions, ideas, feedback, or other information regarding the Software (“Submissions”) provided by the customer to Info Bastion are non-confidential and shall become Info Bastion’s sole property. Info Bastion shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any lawful purpose, commercial or otherwise, without acknowledgment or compensation to Customer. Customer hereby waives all moral rights to any such Submissions, and hereby warrants that any such Submissions are original to Customer or that Customer has the right to submit such submissions. Customer agrees there shall be no recourse against Info Bastion for any alleged or actual infringement or misappropriation of any proprietary right in Customer’s Submissions.
15. Third-Party Materials.
(a) Info Bastion uses certain third-party software in its products, including what is commonly referred to as open-source software. Under some of these third-party licenses, Info Bastion is required to provide the Customer with notice of the license terms and attribution to the third party. See the licensing terms and attributions for such third-party software that Info Bastion uses in the Attributions file included with the Bastilon software.
(b)To the extent the Customer uses the Software to transmit, manage, or create materials or content the Customer represents and warrants that they own or otherwise have the legal rights to use such materials and content and that the Customer use will not infringe, misappropriate or otherwise violate any proprietary, intellectual property, or privacy right of any third party, or violate any applicable law.
16. Venue
This Agreement shall be governed by and construed in accordance with the internal laws of the Commonwealth of Virginia without giving effect to any choice or conflict of law provision or rule (whether of the Commonwealth of Virginia or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the Commonwealth of Virginia. Any legal suit, action or proceeding arising out of or related to this Agreement or the matters contemplated hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the Commonwealth of Virginia, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding and waives any objection based on improper venue or forum non-convenience. Service of process, summons, notice or other document by mail to such party's address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court. This contract shall not be governed by the United Nations Convention on the International Sales of Goods.
17. Force Majeure
Info Bastion shall not be in default by reason of any failure or delay in the performance of its obligations where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations, or non-availability of electrical power, heat, light, air conditioning or Customer equipment, loss and destruction of property or any other circumstances or causes beyond Info Bastion's reasonable control.
18. Assignment
Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Info Bastion's prior written consent, which consent Info Bastion may give or withhold in its sole discretion. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under this Agreement for which Info Bastion's prior written consent is required. No delegation or other transfer will relieve the Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this section is void. Info Bastion may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without the Customer's consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
19. Entire Agreement
This Agreement, together with any order form and all other documents that are incorporated by reference herein, constitute the sole and entire agreement between the Customer and Info Bastion with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
20. Indemnification
Customer will defend, indemnify and hold harmless Info Bastion against and in respect to any and all loss, liability, expense and damage, including consequential, special and punitive damages, directly or indirectly, resulting from any breach of the provisions of this Agreement or any dispute between Customer and any third party in connection with the use of the Software and any and all actions, suits, proceeding, claims, demands, judgments, costs and expenses (including attorney’s fees) incident to the foregoing. The terms of this section will survive termination of this Agreement.
21. General
(a) All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set forth on any order form (or to such other address as may be designated by a party in accordance with this Agreement).
(b) This Agreement is for the sole benefit of the parties hereto and their respective successors and assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
(c) This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
(d) If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
(e) This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The order form and all related documents referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.
(f) The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.