End-User License Agreement
IF YOU DO NOT AGREE TO THESE TERMS:
• DO NOT DOWNLOAD, INSTALL, COPY, ACCESS OR USE THE SOFTWARE; AND
• PROMPTLY DELETE OR RETURN THE SOFTWARE FOR A FULL REFUND.
This End-User License Agreement (“Agreement”) is a legal agreement hereby entered into between you, either an individual, company or other legal entity, and its affiliates (hereafter, “Customer”) and [NAME] (“Licensor”) for the Software.
1.1 “Affiliates” means an entity controlled by, under common control with, or controlling such party, where control is denoted as having fifty percent (50%) or more of the voting power (or equivalent) of the applicable legal entity. Subject to the terms and conditions of this Agreement, Affiliates may use the license granted hereunder. All references to Licensor shall be deemed to be references to Licensor and its Affiliates and all references to Customer shall be deemed to be references to Customer’s company or other legal entity and its Affiliate(s).
1.2 “Computer” means the hardware, if the hardware is a single computer system, whether physical or virtual, or means the computer system with which the hardware operates, if the hardware is a computer system component.
1.3 “Derivative Works” means a revision, enhancement, modification, translation, abridgment, condensation, or expansion of Software or any other form in which such Software may be recast, transferred or adapted, which, if used without the consent of Licensor, would constitute a copyright infringement.
1.4 “Documentation” means the official explanatory materials in printed, electronic or online form provided by Licensor to Customer on the use of the Software. For the avoidance of doubt, any installation guide or end user documentation not prepared or provided by Licensor, any online community site, unofficial documentation, videos, white papers, or feedback does not constitute Documentation.
1.5 “Fees” means the fees for the Software license (including any renewal or extension thereof), Support Services, or any other product or service purchased under this Agreement.
1.6 “Partners” means distributors and resellers authorized by Licensor or its distributors to resell the Software, or a co-branded version of the Software authorized by Licensor.
1.7 “Software” means the object code version of the product, together with the Documentation, and all third-party software that Licensor may have purchased or licensed from third parties and delivered to Customer as part of the Software, as well as any Updates provided by Licensor to Customer pursuant to this Agreement.
1.8 “Support Services” means the service for the correction of errors and/or support of the Software and the issuance of any Updates.
1.9 “Updates” means all subsequent releases and versions of the Software that Licensor makes generally available to its customers as part of purchased Support Services and which are not separately priced or marketed by Licensor.
2. INTELLECTUAL PROPERTY RIGHTS
2.1 Ownership. Title to the Software, Documentation, Updates and all patents, copyrights, trade secrets and other worldwide proprietary and intellectual property rights in or related thereto are and will remain the exclusive property of Licensor and its licensors. Customer may not remove any titles, trademarks or trade names, copyright notices, legends, or other proprietary markings in or on the Software, hardware or Documentation and will not acquire any rights in the Software, except the limited license specified in this Agreement. Licensor and its
licensors own all rights in any copy, translation, modification, adaptation or Derivative Works of the Software, including any improvement or development thereof. Licensor retains all rights not expressly granted to Customer in this Agreement. Customer shall promptly notify Licensor in writing upon discovery of any unauthorized use of the Software or Documentation or infringement of Licensor’s proprietary rights in the Software or Documentation.
2.2 Open Source Components. The Software includes certain third-party software as set forth in the Documentation, and may be used only in accordance with the licenses set forth therein, which prevail over the terms of this Agreement with respect to such third-party software. Source code for these components is available upon written request to Licensor. With respect to the Software, third-party components are integrated by Licensor for and on behalf of Customer in accordance with this Agreement. Therefore, any third-party software delivered to Customer pursuant to this Agreement, including any third-party plug-in that may be provided with the Software, is included for use at Customer’s option, solely in accordance with the corresponding third-party software license(s). Licensor shall have no liability for Customer’s use of any third-party software.
3. LICENSE GRANT AND FEES
3.1 Software License. [Customer is granted a non-exclusive, non-transferable, nonassignable, restricted license during the term set forth in this Agreement, to access, install, and use one production copy, one test copy, and one backup copy of the Software in accordance with the relevant Documentation for Customer’s own internal business purposes only.] Customer may not use the Software for providing hosted or service bureau services to the general public or any third-party entities that are not managed facilities for which Customer provides integral technology services. Customer acknowledges the Software and Documentation is proprietary to Licensor and may not be distributed to any third parties. Customer is not granted rights to Updates unless Customer has purchased Support Services. The license granted herein is subject to the specific restrictions and limitations set forth herein, the terms of the open source licenses governing the components included in the Software, and/or any additional licensing restrictions and limitations specified in the Documentation, or by notification and/or policy change posted at Licensor’s website.
3.2 Fees. Customer agrees to pay Fees to Licensor for the licenses and associated services.
4. LICENSE RESTRICTIONS
4.1 Restrictions on Use. Subject to the terms of the open source licenses governing the open source components of the Software, Customer shall not: (a) Allow third parties or develop methods for third parties to use the Software; (b) sell, rent, lease, use collectively, record, license, sublicense, share, distribute, publicly communicate, transfer or exploit in any other manner the Software or Documentation; (c) except as permitted by applicable law, decompile,
disassemble, or reverse engineer the Software, in whole or in part, and Customer shall not attempt to obtain in any other manner any Software source code, and shall not carry out any action to the detriment of Licensor’s intellectual property rights or those of its suppliers; (d) make copies, execute, publish, or reproduce Software or Documentation, unless expressly authorized in this Agreement (and all copies must maintain Licensor’s copyright notices); (e) develop any Derivative Works or any type of software program based on the Software, Documentation, or any other Confidential Information of Licensor; (f) make available, reveal, disclose, offer, or allow the use of Software by third parties, without the prior written consent of Licensor; (g) alter or modify the Software without the prior written consent of Licensor; (h) reject, avoid, elude, remove, deactivate, or evade, in any way, any protection mechanism of the Software, including without limitation any mechanism used to restrict or control Software functions; (i) provide or offer access to any third parties to any restricted online access keys or authentication passwords provided by Licensor for downloading Software; or (j) disclose to any third party any benchmarking or comparative study involving the Software or Documentation.
4.2 Trademarks. Customer may not delete, remove, hide, move, or alter any trademark, logo, icon, image, or text that represents the Licensor’s name, any derivation thereof, or any icon, image, or text that is likely to be confused with the same. All representations of the Licensor’s name, logo or other mark of Licensor or any of its Affiliates’ names or marks must remain as originally distributed regardless of the presence or absence of a trademark, copyright,
or other intellectual property symbol or notice.
4.3 Legal and Export Control Compliance. Customer agrees to comply with all applicable laws. Without limiting the foregoing, Customer agrees to comply with all United States export laws and applicable import laws of Customer’s locality (if Customer is not located in the United States), and Customer agrees not to export any Software without first obtaining all required authorizations or licenses. In particular, but without limitation, the Software may not be exported or re-exported (a) into any U.S. embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Software, Customer makes representations and warranties of not being located in any such country
or on any such list. Customer also agrees not to use the Software for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.
6. LIMITATION OF LIABILITY
IN NO EVENT, WHETHER IN TORT, CONTRACT, OR OTHERWISE, SHALL LICENSOR OR ITS LICENSORS, PARTNERS, OR SUPPLIERS BE LIABLE TO CUSTOMER OR ANY THIRD PARTIES UNDER THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, COSTS, LOSSES OR EXPENSE, (INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OR INTERRUPTION OF USE, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, DAMAGE TO NETWORKS, EQUIPMENT, OR HARDWARE, OR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR TECHNOLOGY). Regardless of whether the claim for such damages is based in contract, tort, or any other legal theory, [in no event shall Licensor’s aggregate liability to Customer for direct damages exceed the original purchase price of the Software, Support Services or other
amounts paid by Customer], even if Licensor has been advised of such damages. The foregoing limitations shall apply to the maximum extent permitted by applicable law. THE LIMITATION OF LIABILITY HEREIN IS BASED ON THE FACT THAT END USERS USE THEIR COMPUTERS FOR DIFFERENT PURPOSES. ACCORDINGLY, ONLY CUSTOMER CAN IMPLEMENT BACK-UP PLANS AND SAFEGUARDS APPROPRIATE TO CUSTOMER’S NEEDS IN THE ENTENT AN ERROR IN THE SOFTWARE CAUSES COMPUTER PROBLEMS AND RELATED DATA LOSSES. FOR THESE BUSINESS REASONS, CUSTOMER AGREES TO THE LIABILITY LIMITATIONS HEREIN AND ACKNOWLEDGE THAT WITHOUT CUSTOMER’S AGREEMENT TO THIS PROVISION, THE FEES CHARGED FOR THE SOFTWARE WOULD BE HIGHER.