Digital Product(s) End User License Agreement
This End User License Agreement, including the Order Form which by this reference is incorporated herein (this "Agreement"), is a binding agreement between TOLERATED BVBA ("Licensor") and the person or entity identified on the Order Form as the licensee of the Digital Product(s) ("Licensee").
LICENSOR PROVIDES THE DIGITAL PRODUCT(S) SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY [CLICKING THE "ACCEPT" BUTTON/CHECKING THE "ACCEPT" BOX ON THE ORDER FORM/[OTHER MEANS PROVIDED FOR ACCEPTANCE]] YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE 18 YEARS OF AGE OR OLDERAND (II) IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSOR WILL NOT AND DOES NOT LICENSE THE DIGITAL PRODUCT(S) TO LICENSEE AND YOU MUST NOT DOWNLOAD/INSTALL THE DIGITAL PRODUCT(S) OR DOCUMENTATION.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR OR LICENSEE'S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY DIGITAL PRODUCT(S) THAT LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF LICENSOR'S DIGITAL PRODUCT(S).
1. Definitions. For purposes of this Agreement, the following terms have the following meanings:
"Authorized Users" means the individual persons authorized to use the Digital Product(s) pursuant to the license granted under this Agreement.
"Documentation" means user manuals, technical manuals and any other materials provided by Licensor, in printed, electronic or other form, that describe the installation, operation, use or technical specifications of the Digital Product(s).
"Licensee" has the meaning set forth in the preamble.
"License Fees" means the license fees, including all taxes thereon, paid [or required to be paid by Licensee for the license granted under this Agreement.]
"Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
"Licensor" has the meaning set forth in the preamble.
"Order Form" means the order form filled out and submitted by or on behalf of Licensee, and accepted by Licensor, for Licensee's purchase of the license for the Digital Product(s) granted under this Agreement.
"Person" means an individual, corporation, partnership, joint venture, Limited Liability Company, governmental authority, unincorporated organization, trust, association or other entity.
"Digital Product(s)" means the Digital Product(s) programs for which Licensee is purchasing a license, as expressly set forth in the Order Form.
"Term" has the meaning set forth in Section 7.
"Third Party" means any Person other than Licensee or Licensor.
2. License Grant and Scope. Subject to and conditioned upon Licensee's payment of the License Fees and Licensee's strict compliance with all terms and conditions set forth in this Agreement, Licensor hereby grants to Licensee a non-exclusive, non-transferable, non-sub licensable, limited license during the Term to use, solely by and through its Authorized Users, the Digital Product(s) and Documentation, solely as set forth in this Section 2 and subject to all conditions and limitations set forth in Section 3 or elsewhere in this Agreement. This license grants Licensee the right, exercisable solely by and through Licensee's Authorized Users, to:
(a) Download, copy and install in accordance with the Documentation one (1) copy of the Digital Product(s) on one (1) computer/each of the [number of/designated] computers set forth on the Order Form] owned or leased, and controlled by, Licensee. In addition to the foregoing, Licensee has the right to make one copy of the Digital Product(s) solely for archival purposes and one copy of the Digital Product(s) solely for backup purposes, provided that Licensee shall not, and shall not allow any Person to, install or use such copy other than if and for so long as the copy installed in accordance with the preceding sentence is inoperable and, provided, further, that Licensee uninstalls and otherwise deletes such inoperable copy (ies). All copies of the Digital Product(s) made by the Licensee:
(i) will be the exclusive property of the Licensor;
(ii) will be subject to the terms and conditions of this Agreement; and
(iii) must include all trademark, copyright, patent and other Intellectual Property Rights notices contained in the original.
(b) Use and run the Digital Product(s) as properly installed in accordance with this Agreement and the Documentation, solely as set forth in the Documentation and solely for Licensee's internal business purposes.
(c) Download or otherwise make one (1) copy of the Documentation [per copy of the Digital Product(s) permitted to be [downloaded][made][and] installed in accordance with this Agreement] and use such Documentation, solely in support of its licensed use of the Digital Product(s) in accordance herewith. All copies of the Documentation made by Licensee:
(i) will be the exclusive property of Licensor;
(ii) will be subject to the terms and conditions of this Agreement; and
(iii) must include all trademark, copyright, patent and other Intellectual Property Rights notices contained in the original.
(d) [Transfer any copy of the Digital Product(s) from one computer to another, provided that:
(i) the number of computers on which the Digital Product(s) is installed at any one time does not exceed the number permitted under Section 2(a)[./; and]
(ii) Licensee notifies Licensor [in writing] of each such transfer [, including in such notice the information required under this EULA for each computer on which the Digital Product(s) is installed.
3. Use Restrictions. Licensee shall not, and shall require its Authorized Users not to, directly or indirectly:
(a) use (including make any copies of) the Digital Product(s) or Documentation beyond the scope of the license granted under Section 2;
(b) [except as may be permitted by Section Error! Reference source not found. and strictly in compliance with its terms, ]provide any other Person, including any subcontractor, independent contractor, affiliate or service provider of Licensee, with access to or use of the Digital Product(s) or Documentation;
(c) modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Digital Product(s) or Documentation or any part thereof;
(d) combine the Digital Product(s) or any part thereof with, or incorporate the Digital Product(s) or any part thereof in, any other programs;
(e) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Digital Product(s) or any part thereof;
(f) remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices provided on or with the Digital Product(s) or Documentation, including any copy thereof;
(g) except as expressly set forth in Section 2(a) and Section 2(c), copy the Digital Product(s) or Documentation, in whole or in part;
(h) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Digital Product(s), or any features or functionality of the Digital Product(s), to any Third Party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, Digital Product(s) as a service, cloud or other technology or service;
(i) use the Digital Product(s) or Documentation in, or in association with, the design, construction, maintenance or operation of any hazardous environments or systems, including:
(i) power generation systems;
(ii) aircraft navigation or communication systems, air traffic control systems or any other transport management systems;
(iii) safety-critical applications, including medical or life-support systems, vehicle operation applications or any police, fire or other safety response systems; and
(iv) military or aerospace applications, weapons systems or environments;
(j) use the Digital Product(s) or Documentation in violation of any law, regulation or rule; or
(k) use the Digital Product(s) or Documentation for purposes of competitive analysis of the Digital Product(s), the development of a competing Digital Product(s) product or service or any other purpose that is to the Licensor's commercial disadvantage.
4. Responsibility for Use of Digital Product(s). Licensee is responsible and liable for all uses of the Digital Product(s) and Documentation through access thereto provided by Licensee, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Licensee is responsible and liable for all actions and failures to take required actions with respect to the Digital Product(s) and Documentation by its Authorized Users or by any other Person to whom Licensee or an Authorized User may provide access to or use of the Digital Product(s) and/or Documentation, whether such access or use is permitted by or in violation of this Agreement.
5. Intellectual Property Rights. Licensee acknowledges and agrees that the Digital Product(s) and Documentation are provided under license, and not sold, to Licensee. Licensee does not acquire any ownership interest in the Digital Product(s) or Documentation under this Agreement, or any other rights thereto other than to use the same in accordance with the license granted, and subject to all terms, conditions and restrictions, under this Agreement. Licensor reserves and shall retain their entire right, title and interest in and to the Digital Product(s) and all Intellectual Property Rights arising out of or relating to the Digital Product(s), except as expressly granted to the Licensee in this Agreement. Licensee shall safeguard all Digital Product(s) (including all copies thereof) from infringement, misappropriation, theft, misuse or unauthorized access. Licensee shall promptly notify Licensor if Licensee becomes aware of any infringement of the Licensor's Intellectual Property Rights in the Digital Product(s) and fully cooperate with Licensor, in any legal action taken by Licensor to enforce its Intellectual Property Rights.
6. Payment. All License Fees and Support Fees are payable in advance in the manner set forth in the Order Form and are non-refundable.
7. Term and Termination.
(a) This Agreement and the license granted hereunder shall remain in effect for the term set forth on the Order Form or until terminated as set forth herein (the "Term").
(b) Licensee may terminate this Agreement by ceasing to use and destroying all copies of the Digital Product(s) and Documentation.
(c) Licensor may terminate this Agreement, effective upon written notice to Licensee, if Licensee, breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured fourteen (14) days after Licensor provides written notice thereof.
(d) Licensor may terminate this Agreement, effective immediately, if Licensee 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.
(e) Upon expiration or earlier termination of this Agreement, the license granted hereunder shall also terminate, and Licensee shall cease using and destroy all copies of the Digital Product(s) and Documentation. No expiration or termination shall affect Licensee's obligation to pay all Licensee that may have become due before such expiration or termination, or entitle Licensee to any refund, in each case except as set forth in Section 8(c)(ii).
8. Limited Warranties, Exclusive Remedy and Disclaimer/Warranty Disclaimer.
(a) Solely with respect to Digital Product(s) for which Licensor receives a License Fee, Licensor warrants that, for a period of sixty (60) days following the purchase date set forth on the Order Form:
(i) any media on which the Digital Product(s) is provided will be free of material damage and defects in materials and workmanship under normal use; and
(ii) the Digital Product(s) will substantially contain the functionality described in the Documentation, and when properly installed on a computer meeting the specifications set forth in, and operated in accordance with, the Documentation, will substantially perform in accordance therewith.
THE FOREGOING WARRANTIES DO NOT APPLY, AND LICENSOR STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY MATERIALS.
(b) The warranties set forth in Section 8(a)(i) and Section 8(a)(ii) will not apply and will become null and void if Licensee breaches any provision of this Agreement, or if Licensee, any Authorized User or any other Person provided access to the Digital Product(s) by Licensee or any Authorized User, whether or not in violation of this Agreement:
(i) installs or uses the Digital Product(s) on or in connection with any hardware or Digital Product(s) not specified in the Documentation [or expressly authorized by Licensor in writing];
(ii) modifies or damages the Digital Product(s), or the media on which it is provided, including abnormal physical or electrical stress; or
(iii) misuses the Digital Product(s), including any use of the Digital Product(s) other than as specified in the Documentation or expressly authorized by Licensor in writing.
(c) [If, during the period specified in Section 8(a), any Digital Product(s) covered by the warranty set forth in such Section fails to perform substantially in accordance with the Documentation, and such failure is not excluded from warranty pursuant to the Section 8(b), Licensor will, subject to Licensee's promptly notifying Licensor in writing of such failure, at its sole option, either:
(i) repair or replace the Digital Product(s), provided that Licensee provides Licensor with all information Licensor [reasonably] requests to resolve the reported failure, including sufficient information to enable the Licensor to recreate such failure; or
(ii) refund the License Fees paid for such Digital Product(s), subject to Licensee's ceasing all use of and, if requested by Licensor, returning to Licensor all copies of the Digital Product(s).
If Licensor repairs or replaces the Digital Product(s), the warranty will continue to run from the initial date specified on the Order Form, and not from Licensee's receipt of the repair or replacement. The remedies set forth in this Section 8(c) are Licensee's sole remedies and Licensor's sole liability under this Agreement/the limited warranty set forth in Section 8(a).
(d) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN Section 8(a), THE DIGITAL PRODUCT(S) AND DOCUMENTATION ARE PROVIDED TO LICENSEE "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, LICENSOR, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE DIGITAL PRODUCT(S) AND DOCUMENTATION, INCLUDING 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 TO THE FOREGOING, THE LICENSOR PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED DIGITAL PRODUCT(S) WILL MEET THE LICENSEE'S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER DIGITAL PRODUCT(S), 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.
9. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:
(a) IN NO EVENT WILL LICENSOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY OR INABILITY TO USE THE DIGITAL PRODUCT(S), 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 THE LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) IN NO EVENT WILL LICENSOR'S AND ITS AFFILIATES', INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS' AND SERVICE PROVIDERS', COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENTOR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO THE LICENSOR PURSUANT TO THIS AGREEMENT FOR THE DIGITAL PRODUCT(S).
(c) THE LIMITATIONS SET FORTH IN Section 9(a) AND Section 9(b) SHALL APPLY EVEN IF THE LICENSEE'S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
10. Export Regulation. The Digital Product(s) and Documentation may be subject to US export control laws, including the US Export Administration Act and its associated regulations. The Licensee shall not, directly or indirectly, export, re-export or release the Digital Product(s) or Documentation to, or make the Digital Product(s) or Documentation accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. The Licensee 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 Digital Product(s) or Documentation available outside the US.
11. US Government Rights. The Digital Product(s) is commercial computer Digital Product(s), as such term is defined in 48 C.F.R. §2.101. Accordingly, if the Licensee is the US Government or any contractor therefor, Licensee shall receive only those rights with respect to the Digital Product(s) and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
(a) Licensor will not be responsible or liable to Licensee, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder 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 Licensee equipment, loss and destruction of property or any other circumstances or causes beyond Licensor's reasonable control.
(b) All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given: (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile [or e-mail] (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 (d) 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 the Order Form (or to such other address as may be designated by a party from time to time in accordance with this Section 12(b)).
(c) This Agreement, together with the Order Form, and all other documents that are incorporated by reference herein, including the Licensee’s terms and conditions constitutes the sole and entire agreement between Licensee and Licensor 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.
(d) Licensee 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 Licensor's prior written consent, which consent Licensor 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 Licensee (regardless of whether Licensee is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under this Agreement for which Licensor's prior written consent is required. No delegation or other transfer will relieve Licensee of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Section 12(d) is void. Licensor 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 Licensee's consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
(e) This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted 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.
(f) 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.
(g) 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.
(h) For purposes of this Agreement, (a) the words "include," "includes" and "including" shall be deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; and (c) the words "herein," "hereof," "hereby," "hereto" and "hereunder" refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Sections and Exhibits refer to the Sections of, and Exhibits attached to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. 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 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.
(i) The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.