Autobahn End User License Agreement

Swarmcast, Inc.

IMPORTANT! PLEASE READ THIS AGREEMENT CAREFULLY BEFORE DOWNLOADING, INSTALLING OR USING THIS SOFTWARE. This End-User License Agreement ("EULA") is a legal agreement and binding license between you (both individually and on behalf of any entity that has BEEN AUTHORIZED to install or use this software) and Swarmcast, Inc. ("Swarmcast"). This EULA specifies the terms under which YOU may use the SwarmcastTM client software and DOCUMENTATION. By manifesting your assent to this EULA BY clicking the "GO" OR "DOWNLOAD AUTOBAHN" button, or downloading, installing, ACCESSING, copying or otherwise using the Software, YOU agree to be bound by all of the terms and conditions of this EULA. If You do not agree to (or cannot comply with) all of the terms of this EULA. do not download, install, access, copy or in any way use the Software.

DEFINITIONS. As used in this EULA, "Software" means: (a) the Swarmcast Autobahn Accelerator software accompanying this Agreement in object code form only; (b) any updates, upgrades, enhancements, interfaces, modifications, patches, fixes, new features or customizations thereto, in object code form only, made available to you by Swarmcast now or in the future ("Updates"); (b) any printed and/or electronic explanatory materials, user manuals and other documentation that is generally made available to end-users by Swarmcast with the Software ("Documentation"); and (c) any associated physical media on which any of the foregoing is reproduced or distributed.
OWNERSHIP OF SOFTWARE AND CONTENT. The Software and any copies of the Software, including Documentation and Updates, is a proprietary product of Swarmcast and is protected under intellectual property laws, including without limitation, U.S. copyright law and international treaties. Except for the limited license rights expressly granted pursuant herein, Swarmcast and its licensors retain all right, title and interest in and to the Software (including, but not limited to, any images, animations, video, audio, text and "applets" incorporated into the Software). All right, title and interest in and to any third-party content which may be accessed through use of the Software is the property of the respective content owner - this EULA grants you no rights to use such third party content. The Software is licensed, not sold.
GRANT OF LICENSE.
1. Installation. Subject to the terms of this EULA, Swarmcast grants you a non-exclusive, non-transferable, non-sublicenseable, revocable and limited license and right to install and use the Software for noncommercial purposes (in object code form) on a single personal computer or handheld computing device operated by you or under your control, running the operating system for which the Software was designed. If you wish to use the Software on more than a single computer, you must obtain a new and separate license from Swarmcast for each additional computer running the Software. You are solely responsible for obtaining all equipment, ensuring the compatibility thereof with the Software, and for paying all fees, including without limitation, all taxes and Internet access fees necessary to use the Software.
2. Copies, Modifications & Redistribution. You may make a reasonable number of backup copies of the Software, provided your backup copies are not installed or used for other than archival purposes. You many not copy any printed Documentation for any purpose whatsoever. Solely with respect to electronic Documentation, and unless expressly prohibited by the terms associated with such Documentation, you may make a reasonable number of copies of such materials (either hardcopy or electronic form), provided that such copies are not republished or distributed to any third party.
3. Permitted Use. You may only use the Software in a manner that complies with: (i) the Documentation and other Swarmcast policies, rules and guidelines, as may be revised from time-to-time and posted at www.swarmcast.com (you are responsible for regularly reviewing information posted on-line to obtain timely notice of such changes; continued use of the Software after such changes are posted constitute your acceptance of such changes); and (ii) applicable laws and regulations.
4. Restrictions. You shall not yourself, or through any affiliate, agent or third party: (i) sell, rent, lease, distribute, license, sublicense, assign or otherwise transfer (including by loan or gift) any full or partial copies of the Software; (ii) use the Software to provide services such as timesharing, outsourcing, hosting, or processing services to third parties or otherwise use the Software to function on a service bureau basis or as an application service provider; (iii) remove any trademark, copyright notice, label, licensing information or other proprietary notices contained in the Software (and shall reproduce such notices on any copies of the Software you make in connection with your permitted use of the Software); (iv) decompile, disassemble or otherwise reverse engineer the Software; (v) modify the Software in any way or create derivative works based on the Software; (vi) use the Software for benchmarking or performance testing; (vii) use the Software to infringe the copyrights or other intellectual property rights of others in any way; (viii) use the Software to log or otherwise collect information about other users, including without limitation, nonpublic personal data, IP addresses, e-mail addresses and time and date of transmissions; or (ix) interfere with or disrupt the service, servers or network that this Software connects, including without limitation, by posting false information or data. You will promptly notify Swarmcast of any unauthorized disclosure, reproduction or distribution of the Software which comes to your attention or which you reasonably suspect.
5. Updates. Swarmcast may, in its sole discretion, make available or supply you with Updates. Unless otherwise provided with the applicable Update, the same terms of this EULA shall govern your use thereof and the Software incorporating such Updates. You acknowledge that Swarmcast may automatically issue Updates and, accordingly, may upgrade the version of the Software that you are using or have installed on your computer. You hereby agree that your computer may automatically request and receive such upgrades or Updates from Swarmcast's servers.
6. Reservation of Rights. All rights not expressly granted herein are reserved by Swarmcast.
SUPPORT. Nothing in this EULA shall obligate Swarmcast to provide any support or training for the Software, including without limitation, any obligation to correct any defects or provide any Updates to the Software. Swarmcast may provide you with support services related to the Software ("Support Services"). Use of Support Services, if any, will be governed by the then-applicable Swarmcast policies and procedures (and may be subject to separate contract terms and fees).
FEEDBACK. All suggestions, comments, technical information or other feedback concerning your experience with or use of the Software that may be given to Swarmcast including, but not limited to, any Support Services (collectively, "Feedback") will be given voluntarily and without obligation or restriction of any kind. Swarmcast will own all such Feedback and may use it for any purpose. Due to the nature of development work, Swarmcast will not commit to correcting any reported errors or discrepancies. Feedback will not create any confidentiality obligation for Swarmcast, even if designated as confidential by you. You will not give Feedback that is subject to license terms that seek to require any product, technology or service that incorporates or is derived from Feedback, or any intellectual property to be licensed to or otherwise shared with any third party. Notwithstanding the foregoing, Swarmcast will not utilize Feedback in a form that personally identifies you.
INDEMNIFICATION. You agree to indemnify, defend and hold harmless Swarmcast and its affiliated companies, and their respective officers, directors, agents, employees, licensors, successors and assigns against any and all claims, damages, losses and expenses (including reasonable attorneys' fees) as incurred, arising from or in connection with any claim, demand or legal action by a third party, related directly or indirectly to your breaches, acts, omissions, misrepresentations or use of the Software for any purpose.
TERMINATION.
1. By Swarmcast. This EULA will terminate immediately if you fail to comply with any term or condition herein. In the event of your breach, no notice shall be required to effect such termination. Without prejudice to any other rights, you agree that Swarmcast, in its sole discretion, for any or no reason, and without penalty, may terminate this EULA or your use of the Software (or any part thereof) at any time upon posting of such notice on the Swarmcast website. You agree that Swarmcast will not be liable to you or any third party for any such termination. Any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies Swarmcast may have at law or in equity.
2. By End User. Your only remedy with respect to any dissatisfaction with Software is to terminate this EULA. You may terminate this EULA at any time by uninstalling all copies of the Software on your computer, destroying all copies of the Software in your possession, and discontinuing use of any and all parts of the Software.
3. Effect of Termination. Upon termination for any reason, you agree to immediately stop using and to uninstall and irretrievably destroy all copies of the Software from any and all computer storage devices under your control, including accompanying Documentation and all other associated materials. The provisions of this EULA that protect Swarmcast's proprietary and intellectual property rights, and limit Swarmcast's liability, will continue in force after termination.
ONLINE SERVICES.
1. Content. This Software may rely upon or facilitate your access to websites maintained by Swarmcast or third parties offering goods, information and services ("Online Services"). Your access and use of any website or online service is governed by the terms, conditions, disclaimers and notices found on such site or otherwise associated with such services. Swarmcast may at any time, for any reason, modify or discontinue the availability of any website and Online Service. Swarmcast does not control, endorse or accept responsibility for websites or Online Services offered by third parties. Any dealing between you and any third party in connection with a website or Online Service, including delivery of goods and services (e.g., digital media content) and any other terms, conditions, warranties or representation associated with such dealing, are solely between you and such third party. You explicitly acknowledge that downloading some files may require authorization and may be subject to restrictions. You hereby undertake to determine what restrictions apply, to comply with all applicable restrictions and to obtain all necessary authorizations. You are responsible for complying with all laws and regulations applicable to the materials made available for download.
2. Digital Millennium Copyright Act. Swarmcast complies with the provisions of the Digital Millennium Copyright Act. Under federal copyright law, no copyrighted work may be copied, published, disseminated, displayed, performed or played without permission of the copyright holder. Swarmcast is permitted to immediately block access to any infringing websites or remove/disable access to any reference or link upon proper notice from the copyright owner or upon actual knowledge of infringement. Swarmcast will act expeditiously to process any notices of alleged intellectual property infringement. Swarmcast's designated agent for notice of claims of copyright or other intellectual property infringement can be contacted as follows: By mail:
  
  Copyright Agent
  
  212 2nd St. SE
  
  Suite 128
  
  Minneapolis, MN 55414
  
  By fax:
  
  612-340-8796
  
  By email:
  
  info@swarmcast.com
Note: Due to security concerns, attachments cannot be accepted. Accordingly, any notification of infringement submitted electronically with an attachment can not be received or processed.
UNITED STATES EXPORT CONTROLS. The Software is of U.S. origin. You agree to comply with all applicable export laws and restrictions and regulations of the United States Department of Commerce or other United States or other sovereign agency or authority, and not to export, or allow the export or re-export the Software, technical data or any direct product thereof in violation of any such restrictions, laws or regulations, or unless and until all required licenses and authorizations are obtained with respect to the countries specified in the applicable United States Export Administration Regulations (or any successor supplement or regulations). The transfer of certain technical data and commodities may require a license from an agency of the United States government and/or written assurances by you that you will not export such software, technical data or commodities to certain foreign countries without prior approval of such agency.
WARRANTY DISCLAIMER. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SOFTWARE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE, ACCURACY OF INFORMATION, RELIABILITY OR OTHERWISE. SWARMCAST DOES NOT WARRANT THAT THE SOFTWARE WILL BE FREE FROM DEFECTS, THAT ITS USE WILL BE UNINTERRUPTED, THAT YOUR USE OF THE SOFTWARE WILL BE ERROR-FREE OR THAT YOU WILL OBTAIN SATISFACTORY RESULTS. SWARMCAST MAKES NO WARRANTY AS TO THE ACCURACY OF THE SOFTWARE OR THE RESULTS PRODUCED BY THE SOFTWARE. SWARMCAST IS NOT RESPONSIBLE, AND WILL HAVE NO LIABILITY FOR THIRD PARTY HARDWARE, SOFTWARE, ONLINE SERVICES, CONTENT OR OTHER GOODS AND OR SERVICES. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE SOFTWARE OR AS TO THE SATISFACTORY QUALITY, PERFORMANCE AND ACCURACY OF THE SOFTWARE REMAINS WITH YOU. SHOULD THE SOFTWARE PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. IF THE SOFTWARE IS NOT CONSIDERED TO BE SUITABLE, YOU SHALL IMMEDIATELY UNINSTALL THE SOFTWARE.
LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL SWARMCAST OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS OR SUPPLIERS BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATED TO THIS EULA OR THE SOFTWARE, INCLUDING WITHOUT LIMITATION, LOST GOODWILL, LOST PROFITS, LOSS OF DATA OR SOFTWARE, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, WORK STOPPAGE OR IMPAIRMENT OF OTHER GOODS, AND WHETHER ARISING OUT OF BREACH OF WARRANTY, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER LEGAL THEORY, EVEN IF SWARMCAST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR IF SUCH DAMAGE COULD HAVE BEEN REASONABLY FORESEEN.
BASIS OF THE BARGAIN. YOU ACKNOWLEDGE AND AGREE THAT SWARMCAST HAS OFFERED ITS PRODUCTS AND SERVICES, SET ITS PRICES AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND SWARMCAST, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND SWARMCAST. SWARMCAST WOULD NOT BE ABLE TO PROVIDE THE SOFTWARE TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
U.S. GOVERNMENT LICENSE RIGHTS. The Software has been developed entirely at private expense and is delivered and licensed as "commercial computer software" provided with RESTRICTED RIGHTS. Any use or disclosure of the Software by any government entity shall be governed solely by the terms of this EULA. No license to this Software is granted to any government entity requiring different terms. Use, duplication or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights clause at 48 CFR 52.227-19 (or any equivalent agency regulation or contract clause), whichever is applicable. Manufacturer is Swarmcast, Inc., 212 2nd Street SE, Suite 128, Minneapolis, MN 55414.
CONFIDENTIAL INFORMATION. The Software, including without limitation, all trade secrets, performance data, design, features, layouts, configurations, processes, formulae, specifications, programs, test results, technical know-how, methods and procedures of operation, and other information relating to or obtained from the Software (regardless of the media on which it is recorded) by use, examination or otherwise, which is not generally publicly known, are valuable trade secrets of Swarmcast and its licensors, and shall be deemed to be confidential and proprietary information ("Confidential Information"). In addition, any information or materials disclosed or provided to you by Swarmcast or its personnel and specified as confidential or proprietary or marked as confidential or proprietary or similar legend shall also be deemed to be Confidential Information of Swarmcast. You agree to use the same degree of care to protect the Confidential Information from non-disclosure as you would use with respect to your own information of like importance which you do not desire to have published or disseminated, but in any event, no less than reasonable care. You agree not to use any Confidential Information for any purpose not expressly authorized under this EULA and not to disclose to third parties any such Confidential Information. You agree not to use any Confidential Information to create any computer software program or user documentation that is substantially similar to any Swarmcast product.
MISCELLANEOUS. This EULA and any rights and licenses granted hereunder may not be transferred or assigned by you. The heading references herein are for convenience purposes only and do not constitute a part of this EULA. This EULA is governed by the laws of the State of Minnesota and the United States without regard to its conflict of laws rules and principles. The parties agree that the exclusive jurisdiction for any and all disputes arising out of this EULA or the Software shall be in either a federal or state court located in Hennepin County, Minnesota, and each party agrees to submit to the personal jurisdiction of such courts, and irrevocably waives any objection of lack of personal jurisdiction or inconvenient forum. If any part of this EULA is determined to be unlawful, void or unenforceable by a court of competent jurisdiction, that part will be deemed severable and will not affect the validity and enforceability of any remaining provisions. Swarmcast shall be entitled to recover its attorneys' fees and costs, including expert witness fees, incurred in enforcing any rights arising out of or relating to this EULA. The waiver by Swarmcast of a breach of any obligation by you shall not operate or be construed as a waiver of any subsequent breach of the same provision or any other provision of this EULA. Swarmcast may revise this EULA at any time by updating this posting. Your continued use of the Software after the posting of changes constitutes your binding acceptance of such changes. For any material changes to this EULA, such amended terms will automatically be effective thirty (30) days after they are initially posted on the Swarmcast website. This EULA sets forth the entire understanding of the parties hereto with respect to its subject matter and supersedes all prior agreements, negotiations, representations, proposals and discussions, written or oral, relating to its subject matter.

YOU HEREBY ACKNOWLEDGE THAT YOU HAVE READ THIS EULA, UNDERSTAND IT AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS EULA.

Should you have any questions concerning this EULA, or if you desire to contact Swarmcast for any reason, please contact Swarmcast at: Swarmcast, Inc., 212 2nd Street SE, Suite 128, Minneapolis, MN 55414.

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