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Software End User License Agreement
SQL SENTRY, LLC, d/b/a SENTRYONE
4001-B Yancey Road
Charlotte, North Carolina 28217
Ph: (704) 895-6241
Fax: (704) 895-8771
THIS SOFTWARE END USER LICENSE AGREEMENT (this "Agreement") sets forth the terms and conditions under which SQL Sentry, LLC, d/b/a SentryOne, a Delaware limited liability company, with offices located at 4001-B Yancey Road, Charlotte, North Carolina 28217 ("Licensor") is willing to provide certain Licensed Products (as defined below), including perpetual or term-based Software licenses and Professional Services (as each is defined below) to the customer referenced in an accepted Sales Order (defined below) that incorporates this Agreement ("Licensee" or "you"). Each Sales Order together with this Agreement constitutes a separate binding contract between Licensor and Licensee regarding the subject matter in this Agreement.
BY PROCEEDING TO DOWNLOAD, INSTALL OR USE THE SOFTWARE IN WHICH THIS AGREEMENT IS ELECTRONICALLY EMBEDDED OR BY OBTAINING A LICENSE KEY FOR THIS SOFTWARE, YOU HEREBY ACKNOWLEDGE AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, DO NOT INSTALL OR USE THE SOFTWARE AND DELETE THE SOFTWARE FROM YOUR COMPUTER SYSTEM. BY INSTALLING OR USING THE SOFTWARE OR BY CLICKING ON "ACCEPT" YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THIS SOFTWARE END USER LICENSE AGREEMENT, THAT, IF YOU ARE A CORPORATION OR OTHER FORM OF ORGANIZATION, YOU POSSESS THE REQUISITE CORPORATE AUTHORITY TO ENTER INTO AND PERFORM YOUR DUTIES UNDER THIS AGREEMENT, AND THAT YOU AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT.
This Agreement, together with Licensor's sales order as executed by Licensee (hereinafter, the "Sales Order") sets forth the terms and conditions whereby Licensor agrees to provide to Licensee and Licensee agrees to acquire from Licensor one or more licenses to use certain software and documentation and, where applicable, maintenance services related thereto, owned or licensed by Licensor or a subsidiary of Licensor, as set forth on the Sales Order delivered in connection with this Agreement. To the extent any terms or conditions contained in the Sales Order conflict with the terms or conditions contained in this Agreement, the terms and conditions of the Sales Order shall supersede only those conflicting terms or conditions contained in this Agreement and only to the minimum extent necessary to harmonize the terms in such Sales Order with the terms contained herein. This Agreement specifically supersedes and replaces the terms and conditions of all prior agreements between Licensor and Licensee relating to the software licensed hereunder, including, but not limited to, any agreements which may accompany or are embedded in Licensor’s products or which have been previously in force between the parties.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and in further consideration of the mutual promises set forth herein, Licensor and Licensee agree as follows:
Whenever used in this Agreement, the capitalized terms quoted below will have the meaning ascribed to them in this Section.
1.1. "Confidential Information" has the meaning set forth in Section 11 of this Agreement.
1.2. "Copy" or "Copies" means the Licensed Product (including the components thereof), any Releases, Error Correction, or Enhancement pertaining thereto, and any reproductions of the Licensed Product or any Release, Error Correction, or Enhancement pertaining thereto.
1.3 "Delivery Date" means the date of Licensee's receipt of the Original Licensed Product.
1.4. “Effective Date” means the earlier to occur of the following: (i) the date Licensor signs the initial Sales Order; (ii) the date Licensor downloads or installs the Licensed Software, or (iii) the date Licensor makes a payment to Licensee for the Licensed Software.
1.5. "Enhancement" means a modification of the Licensed Software by Licensor which provides (a) a capability not defined in the Product Specifications or (b) an improvement in the efficiency of the Licensed Software. Licensor may designate an Enhancement as "Major" or "Minor" depending on (a) Licensor's reasonable assessment of the Enhancement's value and (b) whether the Enhancement adds a functional extension to the preexisting Licensed Software. An Enhancement may entail a modification to the Product Specifications and/or the Object Code or may be provided to Licensee in the form of an Upgrade.
1.6. "Error" means a failure of the Licensed Software to conform in all material respects to the Product Specifications. Provided, however, any non-conformity resulting from Licensee's improper use of the Licensed Software, combining or merging the Licensed Software with software not approved by Licensor for use with the Licensed Software, or modification of the Licensed Software which has not been performed by Licensor, shall not be considered an Error.
1.7. "Error Correction" means a modification of the Licensed Software by Licensor which corrects Errors discovered in the Licensed Software and enables the Licensed Software to substantially conform to the Product Specifications.
1.8. "Intellectual Property Rights" means all proprietary information, patents, patent applications, trademarks, trade names, service marks, certification marks, collective marks, designs, processes, inventions, licenses, copyrights, know-how and trade secrets relating to the origin, design, manufacture, programming, operations, function, configuration, or service of the Licensed Product.
1.9. "License Fees" means those amounts specified and set forth in the Sales Order.
1.10. “License Key” means a special security code owned and controlled by Licensor which may be required to render operational certain Licensed Products. Where necessary for operation of the Licensed Products, Licensor will provide a License Key to Licensee.
1.11. "Licensed Documentation" means all written materials, binders, user manuals, and other documentation and materials supplied by Licensor and related to the Licensed Software, other than the Licensed Software.
1.12. "Licensed Product" means collectively the Licensed Software and Licensed Documentation.
1.13. "Licensed Software" or “Software” means the machine-readable object code version of the software that Licensor or its authorized representative makes available to the Licensee, whether in a free or purchased versions, and whether embedded on disc, tape or other media, as further identified in the Sales Order, all Error Corrections, Enhancements, and Releases thereof supplied by Licensor, to Licensee pursuant to the terms of this Agreement and all permitted copies of the foregoing.
1.14. “Major Enhancement” means a version of the Licensed Software which contains new features or substantially improved functions from those contained in the Original.
1.15. "Object Code" means machine readable computer programs.
1.16. "Operators" means the employees, or agents of Licensee who are bound by the confidentiality provisions of Section 11 of this Agreement and who are permitted access to or use of the Licensed Product.
1.17. "Original" means the first edition of the Licensed Product delivered by Licensor to Licensee pursuant to this Agreement.
1.18. "Perpetual License" means that type of software license set forth in Section 2.1.
1.19. "Product Specifications" means the technical and performance functions of the Licensed Software, as specifically set forth in the Product Specifications section of the Licensed Documentation.
1.20. “Professional Services” means training, implementation and technical services, other than Software Maintenance support, provided by Licensor to Licensee and as agreed and set forth in a Sales Order.
1.21. "Release" or "Releases" means the edition(s) of the Licensed Software subsequent to the Original Licensed Product. A Release may include Licensed Documentation provided by Licensor for Error Correction or Enhancement.
1.22. “Sales Order” means all sales orders prepared by Licensor and provided to Licensee, either prior to or after the Effective Date, that identify the Licensed Software, the type of license granted, payment terms, Software Maintenance subscriptions and Professional Services, if any, to be purchased by Licensee subject to the terms and conditions of this Agreement.
1.23. "Service Fees" means those amounts specified in the Sales Order for professional services requested by Licensee.
1.24. "Software Maintenance" means the Error Correction support provided by Licensor.
1.25. "Software Maintenance Fees" means those amounts specified in the Sales Order.
1.26. “Software Maintenance Program" means the procedure for ongoing software maintenance set forth in Section 5 of this Agreement.
1.27. “Software Maintenance Term” means the term of Licensee’s subscription to the Software Maintenance Program, as determined by Licensee’s respective Sales Order..
1.28. "Source Code" means the plain text, readable computer programming code, associated procedural code, and supporting documentation for the Licensed Software.
1.29. "Term" with respect to a Term License, means the term of this Agreement, as stated in the Sales Order, and with respect to a Perpetual license, as set forth in Sections 2.1.
1.30. "Term License" means that type of software license set forth in Section 2.2.
1.31. “Third Party Software” means software and related materials that are furnished by a third party and subject to a separate license agreement between the licensor of that software and the Licensee.
1.32. "Warranty Period" means that period set forth in Section 8.1 of this Agreement.
1.33. "Upgrade" means software which is marketed by Licensor as a separate software product and which is subject to a separate license fee. An Upgrade may include Major Enhancements.
2.1 Perpetual License Grant. In the event Licensee elects to purchase a Perpetual License as set forth in the Sales Order, Licensor hereby grants to Licensee and Licensee accepts a limited, perpetual, revocable, non-exclusive, non-sublicensable, non-assignable, non-transferable, non-resellable license, to install, execute, and use the Licensed Product identified in the Sales Order, subject to the terms and conditions of this Agreement. Licensor reserves all rights in the Licensed Product. As it pertains to Perpetual Licenses, this Agreement shall be effective as of the Effective Date and continue in perpetuity, unless sooner terminated per the terms of this Agreement.
2.2 Term License Grant. In the event Licensee elects to purchase a Term License as set forth in the Sales Order, Licensor hereby grants to Licensee and Licensee accepts a limited, term, revocable, non-exclusive, non-sublicensable, non-assignable, non-transferable, non-resellable license, to install, execute, and use the Licensed Product identified in the Sales Order, subject to the terms and conditions of this Agreement. Licensor reserves all rights in the Licensed Product. As it pertains to Term Licenses, this Agreement shall be effective as of the Effective Date and shall remain in effect for a period of one (1) year from the Effective Date, and thereafter automatically renew for an additional one (1) year period on each anniversary of the Effective Date, unless and until either Party provides the other Party with sixty (60) days prior written notice of its desire not to renew the Term, or unless sooner terminated per the terms of this Agreement or the Licensee’s respective Sales Order.
2.3 Trial License Terms. In the event you obtain the license for the Software on a trial evaluation basis, as may be specified on your Sales Order, or if Licensor has provided the Software for your trial and evaluation prior to your purchase of a license, then this paragraph applies. To the extent that any provision in this paragraph is in conflict with any other term or condition of this Agreement, this paragraph shall supersede such other term(s) and condition(s), but only to the extent necessary to resolve the conflict. If the paragraph applies, then the license rights granted in this Agreement are limited to trial period permitted by Licensor, at Licensor’s discretion. If you decide to use the Software after the trial period, you must purchase a license to the Licensed Software and once purchased will obtain a License Key to activate your licensed copy of the Software beyond the trial period. Software licensed for trial purposes is provided "as iS" and LICENSOR does not provide any warranties, maintenance or technical support for such Software. SentryOne expressly disclaims any express or implied warranties with respect to any such software, including any implied warranties of merchantability, fitness for a particular purpose, system integration, data accuracy, noninfringement, and non-interference. you assume all risk of your use of the software on a trial evaluation basis.
2.4 Licensee Restrictions and Conditions. Licensee must use the Licensed Product (a) only in a manner and for the purposes for which the Licensed Product was designed and (b) only for Licensee’s sole and exclusive benefit. Licensee shall not copy any part of a Licensed Product, except as specifically set forth in Section 7 of this Agreement. If requested by Licensor, Licensee shall provide Licensor a written description of the procedures under which it makes backup copies of the Licensed Software, and Licensor shall promptly approve or disapprove those procedures, which approval shall be at Licensor’s sole discretion.
All uses not permitted under this Section 2 are prohibited. By way of example and without limitation, Licensee may not: (a) disassemble, decompile, reverse engineer, or modify the Licensed Software; (b) examine the Licensed Software with debugging, memory inspection, or disk inspection tools; (c) rent or sublicense the Licensed Product; (d) permit use of the License Product by a person who is not an Operator; (e) transmit an electronic copy of the Licensed Software by any means; (f) use the Licensed Software in the operation of a service bureau or time sharing arrangement or to provide outsourcing services; (g) reverse engineer or otherwise attempt to acquire, bypass or disable the License Key; (h) intercept, capture, emulate, or redirect the communications protocols used by Licensor for any purpose, including without limitation causing the Licensed Products to connect to any computer server or other device not authorized by Licensor, or (i) copy, reproduce, re-manufacture or in any way duplicate all or any part of the Licensed Products or related intellectual property WHETHER MODIFIED OR TRANSLATED INTO ANOTHER LANGUAGE OR NOT, or in any documentation, or in any other material provided by Licensor in association with the Licensed Products, except as specified herein and in accordance with the terms and conditions of this Agreement. Licensee agrees that the performance of any of the above, or Licensee’s failure to reasonably protect the Licensed Products will actually and materially damage Licensor.
Nothing in this Agreement will entitle Licensee to receive Source Code of the Software or Releases, in whole or in part. Licensor, in its sole discretion, reserves the right to add additional features or functions, or to provide Error Corrections, Enhancements, or Releases. Licensee acknowledges and agrees that Licensor has no obligation to make available to Licensee any Releases of the Licensed Products, except during an active Term License or where Licensee receives Software Maintenance services from Licensor as governed by Section 5 of this Agreement.
2.5 Cloud Services. The Parties acknowledge and agree that as a convenience to Licensee, and in connection with the use of the Licensed Products, Licensee may, at Licensee's sole determination, activate a cloud storage functionality which will permit Licensor to save and store queries performed by Operators for future access by Operators. The cloud storage functionality does not permit storage of query results. Licensee hereby acknowledges that the use of Licensor's cloud services is not a part of the Licensed Product, but rather an optional convenience offered to Licensee, which Licensee must explicitly elect to have activated. Licensee further acknowledges that the cloud storage is offered "AS IS" and Licensor hereby disclaims any warranties with respect to the cloud storage functionality. Should Licensee elect to use the cloud storage, then Licensee agrees that it shall be solely responsible for the content stored thereon and access provided thereto from within Licensee's environment and by the Operators. Licensee shall be liable for any unauthorized access to the Licensee's cloud storage account obtained through Licensee's environment, any breach thereof, or compromise of the login credentials or other method of access provided to any Operator.
2.6 Ownership. Licensor owns the media on which the Licensed Software is originally or subsequently recorded; provided, however, subject to the terms and conditions of this Agreement, Licensee may store and use the Licensed Software in electronic form for use solely by Licensee and Licensee's Operators. As between Licensor and Licensee, Licensor retains all right, title and interests in and to the Licensed Software (both as recorded on the original media and on any subsequent media), and all computer recorded data related thereto, the Licensed Documentation, and any Copies in any form. This Agreement is a license to use, and not a contract of sale for, the Licensed Product. All Intellectual Property Rights in and to the Licensed Product are retained by Licensor or the licensor of Third Party Software, as the case may be. Licensee shall not use either the name of Licensor, the licensor of Third Party Software, or the name of the Licensed Product or Third Party Software licensed under this Agreement for any commercial purpose or in any advertising, promotional or public statement without the prior, written consent of Licensor or the licensor of Third Party Software, which consent shall be at the sole discretion of Licensor or the licensor of Third Party Software. Licensee also agrees that all techniques, algorithms, and processes contained in or on the Licensed Products or any modification or extraction thereof constitute Licensor trade secrets and shall constitute Licensor Confidential Information to be protected pursuant to Section 11 hereunder. Licensee agrees not to remove, deface, or destroy any copyright, patent notice, trademark, service mark, other proprietary markings, or confidential legends placed on or within the Licensed Software, the Licensed Documentation, and any Copies thereof in any form. During the installation and set-up process, Licensor shall request that Licensee grant to Licensor the right to send Licensor anonymized usage data collected through application telemetry. The anonymized usage data does not and cannot identify any user or Licensor at its source and only collects statistical data such as feature usage, navigation paths and aggregate number of monitoring devices, each on an aggregated basis, from all Licensor customers that have elected to provide such data, and is used by Licensor to inform updates and improve the Licensed Software. Licensor may decline to send anonymized data during the installation process or at any time after installation on a going forward basis. In the event Licensee elects send the anonymized usage data to Licensor, Licensee hereby grants to Licensor a non-exclusive, perpetual, irrevocable, royalty-free license to use the anonymized usage data to improve and develop Licensor's products and services and for Licensor's internal business purposes.
2.7 Specific Licensed Software Restrictions. Licensee acknowledges and agrees that the licenses granted hereunder and the restrictions applicable to Licensee’s installation and use of the License Software will vary according to the type of license and Licensed Software purchased by Licensee. Licensee hereby agrees to install, operate and use the Licensed Software in accordance with the following license restrictions and conditions, as applicable to the type of Licensed Software licensed hereunder as further set forth in one or more Sales Orders:
3.1. Delivery of Software. Licensor shall deliver the Licensed Product to Licensee electronically or by other methods as agreed by Licensor and Licensee on the Delivery Date.
3.2. Installation Support. Licensor shall provide Licensee with the instructions necessary for the successful installation of the Software.
4.1 License Fees. As compensation for the license provided in this Agreement for the Licensed Product, Licensee shall pay Licensor the License Fees as set forth in the Sales Order.
4.2 Service Fees. As compensation for the Professional Services included in the Sales Order, Licensee shall pay Licensor the Service Fees as set forth in the Sales Order.
4.3 Software Maintenance Fees. As compensation for the Software Maintenance provided by Licensor under this Agreement, Licensee shall pay Licensor the Software Maintenance Fees as set forth in the Sales Order.
4.4 Expenses. If Licensee requests Professional Services from Licensor, Licensee shall be responsible for all pre-approved, reasonable and necessary out of pocket travel, food, lodging, and related expenses incurred by the Licensor personnel in providing such Professional Services in addition to payment of any Services Fees.
4.5 Audit of Use. Licensor may, at its expense, audit Licensee's use of the Licensed Product. Audits shall be conducted during regular business hours either remotely or at Licensee's place or places of business and shall not unreasonably interfere with Licensee's business activities. Audits shall be conducted no more than once annually. If, as a result of any such audit, Licensor identifies unauthorized use of the Licensed Software, Licensee shall pay, in addition to a full License Fee for each unauthorized use of the Licensed Software in use by Licensee, all reasonable expenses of Licensor in conducting the audit.
4.6 Payment. All fees or amounts due to Licensor under this Agreement shall be due and payable in full in U.S. currency within thirty (30) days of the date of Licensor's invoice for said fees or amounts. Licensee shall have no right of offset or withholding under this Agreement. In the event the sales invoice shall be placed by Licensor in the hands of an attorney for the purpose of collection, with or without litigation, or for the purpose of enforcing Licensor’s security interest in the Licensed Products, Licensee agrees to pay any and all costs associated with such placement, including, but not limited to, attorney’s fees and costs incurred prior to, during, or subsequent to trial, and including, without limitation, collection, bankruptcy, or other creditor’s rights proceedings.
4.7 Interest on Late Payments. All fees and amounts due to Licensor and not paid within thirty (30) days after the date such amounts are due and payable shall bear interest at the lesser of one and one-half percent (1.5%) per month or the maximum rate of interest allowable by law.
4.8 Taxes and Other Charges. All License Fees, Service Fees, and Software Maintenance Fees are exclusive of media charges, shipping, handling, custom charges, and all state, local, and other taxes, or other taxes or charges (other than income or franchise taxes payable by Licensor) directly applicable to the licensing, installation, support or use of the Licensed Product. Licensee shall pay all charges or taxes or provide Licensor with an appropriate certificate of exemption within thirty (30) days of the date of any invoice or statement of Licensor or the taxing authorities. If Licensee elects to challenge the applicability of any tax or charge, Licensee shall pay the tax or charge to Licensor or give Licensor evidence of payment to the taxing authorities or charging entity, and Licensee may thereafter challenge such tax or charge and seek a refund.
5.2 Purchase of Software Maintenance Subscriptions. Term Licenses include the Software Maintenance Program for the Term of the Term License. A subscription to the Software Maintenance Program is required for the first year when a Perpetual License is purchased. The Software Maintenance Term and Software Maintenance Fees shall be set forth in the Sales Order.
5.3 Software Maintenance Renewal. At least sixty (60) days prior to expiration of each Software Maintenance Term, Licensor will invoice Licensee for the next consecutive Software Maintenance Term and such Software Maintenance Program shall automatically renew unless Licensee provides notice to Licensor of its intent not to renew the Software Maintenance program not less than thirty (30) days prior to the end of the current Software Maintenance Term. If Licensee elects not to renew the Software Maintenance Program it shall expire at the end of the current Software Maintenance Term. If Licensee fails to renew a subscription to the Software Maintenance Program, Licensee may, within 6 months of the expiration of the Software Maintenance Term, request to reinstate the Software Maintenance Program by providing notice to Licensor and paying (i) the then-current Software Maintenance Fees for the following 12 months and (ii) the Software Maintenance Fees that would have been due had Licensee renewed the Software Maintenance Program, commencing with the end of the expired Software Maintenance Term and ending the date the Software Maintenance Program is reinstated. Any Software Maintenance Term that has been expired for more than 6 months cannot be reinstated.
5.4 Notification of Suspected Licensed Software Defects. If Licensee believes there is an Error in the Licensed Software, Licensee must notify Licensor of such Error in writing, or by telephone or email. After Licensor's analysis of the reported Error, Licensor will: (i) notify Licensee whether Licensor has verified the Error; (ii) where an Error has been verified, provide Licensee of available remedies; and (iii) where a remedy is not immediately available, notify Licensee of the need for further investigation. Errors reported to Licensor during the Software Maintenance Term and subsequently verified by Licensor will be corrected in accordance with this Agreement at no charge to Licensee. Licensor reserves the right to determine the disposition of any and all reported Errors.
5.5 Support Line. Support Line. As a service of the Software Maintenance Program, Licensor shall provide Licensee the availability of telephone or email services for questions or problems associated with the Licensed Products, as updated from time to time by notice to licensee, during normal business hours from 8:30 AM to 5:30 PM EST, Monday through Friday except for holidays.5.6 Error Correction and Enhancement Releases.
6. LICENSEE'S REPRESENTATIONS AND WARRANTIES.
6.1. Compliance with Terms. Licensee shall monitor the Licensed Product and ensure that it is used only in compliance with the terms of this Agreement. Licensee shall be responsible and liable for any and all non-compliance with this Agreement by Licensee or by any person or entity who obtains access to the Licensed Product through Licensee.
6.2 Suitability of Licensed Product. Licensee represents and warrants that as of the time of Acceptance, Licensee will have evaluated, tested, and examined the Licensed Product and determined independently that the Licensed Product is suitable for the use intended by this Agreement. Licensee assumes all responsibility and risk of selection, installation, use, efficiency and suitability of the Licensed Product, and subject to the provisions of Section 8; Licensor shall have no liability therefore.
6.3 Notification of Defects. Licensee shall notify Licensor in writing of any material defect Licensee believes exists in the Licensed Product, and Licensee shall provide to Licensor all information known or reasonably available to Licensee regarding the alleged defect.
6.4 Third Party Material. With respect to all computer programs and data and hardware not provided by Licensor and to be used or reproduced during Licensee's use of the Licensed Software, Licensee represents that it has all necessary rights to use or reproduce the computer programs and that no use of the Licensed Software in connection therewith shall be made that causes an infringement of the right of any third party.
6.5 Licensee's Responsibility. Licensee shall be exclusively responsible for the supervision, management, and control of its use of the Software, including, but not limited to (a) assuring proper configuration of equipment or devices; (b) establishing adequate operating methods; and (c) implementing procedures sufficient to satisfy its obligations for security under this Agreement, including appropriate action between it and its employees to prevent misuse, unauthorized copying, modification, or disclosure of the Software.
Licensee shall only be permitted to make copies of the Licensed Software and Licensed Documentation for backup, training, testing, disaster, archival, or disaster recovery purposes. Each and every such copy, in whole or in part, of the Licensed Software shall contain all of Licensor's restrictive and proprietary notices in the form and content as they appear on or in the Licensed Software or Licensed Documentation provided by Licensor. All Copies shall remain the property of Licensor.
8.1. Limited Warranty. Licensor warrants to Licensee that during the first sixty (60) days after the Delivery Date (the "Warranty Period") the Licensed Products will conform to Licensor's published specifications in effect on the Delivery Date, and that the Licensed Software will perform substantially as described in the accompanying Licensed Documentation. Licensor does not warrant (a) that the Licensed Software will meet Licensee's requirements; (b) that operation of the Licensed Software will be uninterrupted; (c) that the Licensed Product is error free; (d) that all defects in the Licensed Product will be corrected; or (e) any change or modification of the Licensed Software made by Licensee; provided, however, any change or modification properly made by Licensee in accordance with instructions contained in the Licensed Documentation for the Licensed Software shall not void the warranty provided by Licensor herein. Laws from time to time in force may imply warranties that cannot be excluded or can only be excluded to a limited extent. This Agreement shall be read and construed subject to any such statutory provisions.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, LICENSOR MAKES NO OTHER WARRANTIES OR REPRESENTATIONS RELATING TO THE LICENSED SOFTWARE OR ITS PERFORMANCE OR WITH RESPECT TO THE LICENSED DOCUMENTATION AND LICENSOR EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, REPRESENTATIONS, INDEMNITIES AND GUARANTEES WITH RESPECT TO THE LICENSED PRODUCTS, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS BY LICENSOR OR ITS AUTHORIZED REPRESENTATIVES OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SYSTEM INTEGRATION, SUITABILITY, ACCURACY OR FITNESS FOR PARTICULAR PURPOSE).
No warranties as may be set forth herein shall be applicable to any Licensed Products offered as a demo or trial use free of charge, which shall be accepted by Licensee on an “as is” basis.
8.2 Licensor's Warranty Obligations; Limitations of Limited Warranty. In the event of breach of the Limited Warranty provided in Section 8.1 of this Agreement, Licensor's entire liability and Licensee's exclusive remedy will be to exchange the defective Licensed Software or, at the option of Licensor, to take back the defective Licensed Software for a cash refund (a) of any fees prepaid by Licensee, or (b) where Licensee has elected to purchase a Perpetual License to the Licensed Software, an amount equal to the License Fee paid by Licensee for the Licensed Product; provided that any such refund shall be paid following Licensor's receipt of all returned defective Licensed Software. Licensee acknowledges that this Section 8.2 sets forth Licensee's exclusive remedy, and Licensor's exclusive liability, for any breach of warranty or other duty related to the quality of the Licensed Products.
The Limited Warranty provided in this Section 8 does not apply to problems resulting from:
(a) improper installation of the Licensed Software by Licensee, or any other party other than the Licensor, or the installation of the Licensed Software on improper hardware;
(b) modification of the Licensed Software not undertaken or performed by Licensor;
(c) malfunctions in any computer hardware or software or systems files not provided by Licensor;
(d) accident of Licensee or at the Licensee’s premises;
(e) neglect of Licensee;
(f) misuse of the Licensed Software by Licensee, its Operators, its employees, and agents and all persons or entities who have access through Licensee to the Licensed Product;
(g) use of the Licensed Software with data of any entity other than Licensee; or
(h) a power surge or failure at Licensee’s physical location.
8.3 NO CONSEQUENTIAL DAMAGES; LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE LIABLE FOR ANY CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, INDIRECT, PUNITIVE, OR SPECIAL DAMAGES RELATING TO THIS AGREEMENT OR RESULTING FROM THE USE OR INABILITY TO USE, OR PERFORMANCE OR NONPERFORMANCE OF, THE LICENSED SOFTWARE, DOCUMENTATION, SERVICES OR ANY OTHER GOODS OR SERVICES PROVIDED BY LICENSOR, INCLUDING WITHOUT LIMITATION ANY DAMAGES FOR LOSS OF DATA OR GOODWILL. THE FOREGOING SHALL NOT APPLY TO DAMAGES CAUSED BY A PARTY'S UNAUTHORIZED USE OR DISCLOSURE OF THE OTHER PARTY'S INTELLECTUAL PROPERTY. THE FOREGOING SHALL APPLY EVEN IF IT CAUSES A FAILURE OF AN ESSENTIAL PURPOSE AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY. EXCEPT FOR FRAUD OR DAMAGES CAUSED BY A PARTY'S UNAUTHORIZED USE OR DISCLOSURE OF THE OTHER PARTY'S INTELLECTUAL PROPERTY, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY TO THE OTHER PARTY RELATING TO THIS AGREEMENT OR RESULTING FROM THE USE OR INABILITY TO USE, OR PERFORMANCE OR NONPERFORMANCE OF, THE SOFTWARE, DOCUMENTATION, SERVICES OR ANY OTHER GOODS OR SERVICES EXCEED THE FEES PAID OR PAYABLE TO LICENSOR BY LICENSEE DURING THE 12 MONTHS PRECEDING THE EVENT GIVING RISE TO A CLAIM.
8.4 Allocation of Risk. This Section 8 of this Agreement allocates the risks under this Agreement between Licensor and Licensee.
THE PROVISIONS OF THIS SECTION 8 STATE THE SOLE AND EXCLUSIVE REMEDIES AVAILABLE TO LICENSEE, AND LICENSOR'S SOLE AND EXCLUSIVE LIABILITY, FOR ANY BREACH OF WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, OR STRICT LIABILITY IN TORT CLAIM AND ANY CLAIM REGARDING THE PERFORMANCE OR NON-PERFORMANCE OF THE LICENSED PRODUCT.
9.1 Indemnity by Licensee. Licensee shall be solely responsible for, and shall indemnify, defend, and hold Licensor free and harmless from all damages, liabilities, charges, and expenses (including reasonable attorneys' fees) from all claims, lawsuits, or other proceedings arising out of or relating to (a) Licensee's use of the Licensed Product in a manner not permitted by this Agreement, not permitted by Licensor, or not in conformance with Licensor's written requirements, (b) the acts or omissions of Licensee, its Operators, its employees, and agents and all persons or entities who have access through Licensee to the Licensed Product, (c) Licensee's failure to promptly install a Release, or (d) relating to an infringement of any right resulting in any way from the use of the Licensed Software with other software or materials not licensed to Licensee by or not approved by Licensor.
9.2 Indemnity of Right of Use. Licensor shall defend or settle, at its own expense, any claim made against Licensee that the Licensed Product, in whole or in part, infringes any United States patent, copyright, trade secret, or other proprietary right, and Licensor shall pay any final judgment that may be awarded by a court against Licensee as a result of the foregoing; provided, however, Licensee shall (a) give Licensor written notice of such claim within thirty (30) days of the date Licensee first knows or should have known of the claim and (b) provide Licensor with reasonable cooperation and all information in Licensee's possession related to said claim. Licensor shall have sole control of the defense of such claims and all related settlement negotiations. Reasonable out of pocket expenses incurred by Licensee in providing assistance to Licensor in defense of such a claim shall be reimbursed by Licensor.
9.3 Remedy for Claimed Infringement. If a claim is made that the Licensed Product, or any portion thereof, infringes any United States patent, copyright, trade secret, or other proprietary right, Licensor, at its sole expense and option, may either: (a) procure for Licensee the right to exercise the rights and licenses granted hereunder with respect to the Licensed Product; (b) modify the Licensed Product to make it non-infringing but continue to meet the Product Specifications; (c) replace the Licensed Product with equivalent but non-infringing software of like functionality that meets the Product Specifications; or (d) terminate this Agreement and refund (i) any fees prepaid by Licensee, or (ii) in the event Licensee has elected to purchase a Perpetual License to the Licensed Software, then upon the return of the Licensed Product, an amount equal to the License Fee less depreciation based on a 3-year straight line schedule, and upon the return to Licensor of the Licensed Product; provided, however, that the liability of Licensor pursuant to this Section 9.3 shall be subject to the limitations set forth in Section 8.3 of this Agreement, and Licensor shall have no liability for any claim of infringement based on use of a superseded or altered Release of the Licensed Product if the infringement would have been avoided by the use of the most current, unaltered Release of the Licensed Product which is available to Licensee either during the Warranty Period or would be available under the Software Maintenance Program, regardless of whether Licensee subscribes to the Software Maintenance Program.
9.4 Limitation of Indemnity. Licensor shall have no liability to Licensee or any assignee, transferee, or sublicensee of Licensee, as applicable, for any claim of infringement that is based upon any combination of the Licensed Software with software not supplied by or authorized by Licensor if such claim would have been avoided but for such combination; or any modifications to the Licensed Software other than Releases provided by Licensor or otherwise approved by Licensor. This Section 9 sets forth Licensor's only obligations and Licensee's only remedies for claims that the Licensed Product infringes on the Intellectual Property Rights of a third party.
10.1 Termination by Licensor. Licensor may terminate this Agreement and the Perpetual License or Term License, as the case may be, granted to Licensee upon the occurrence of any of the following events:
10.2 Termination by Licensee. Provided Licensee is not in default under this Agreement or the Sales Order, this Agreement may be terminated by Licensee by giving Licensor ninety (90) days prior written notice of termination. Any such termination by Licensee shall be without refund of any License Fee, Service Fee, Software Maintenance Fee, or any other amount paid, paid in advance, or then due and payable to Licensor. Licensee may terminate this Agreement in the event Licensor breaches any material obligation of Licensor under this Agreement and such breach is not cured within thirty (30) days of Licensor's receipt of written notice thereof from Licensee or Licensor becomes insolvent, or is adjudicated as bankrupt, or voluntarily seeks protection under any bankruptcy or insolvency law.
10.3 Licensor Remedies Upon Termination. In the event of any termination of this Agreement:
(a) Licensee shall cease all further use of the Licensed Product, or any portion thereof, in all forms and on all media and computer memory, and Licensee shall immediately: (i) surrender and deliver the Licensed Product and all Copies thereof to Licensor; or (ii) at the option of the Licensor, destroy all Copies of the Licensed Product, including backup and archival copies, and provide satisfactory evidence of such destruction in the form of an affidavit certifying that Licensee has complied with the terms of this Section 10.3(a), delivered to Licensor within one (1) month following termination;
10.4 Equitable Relief. The Parties acknowledge and agree that there may be no adequate remedy at law for the failure of the other Party to comply with any of the material terms and conditions of this Agreement, including, without limitation, a failure to cease the use of the Licensed Product upon termination of the license or a breach of the confidentiality provisions of Section 11, and the Parties agree that, in the event of any such failure, the non-breaching Party shall be entitled to equitable relief by way of temporary restraining order, temporary injunction and permanent injunction and such other and further relief as any court of competent jurisdiction may deem proper.
10.5 Remedies Cumulative. The rights and remedies of Licensor and Licensee in this Section 10 shall be cumulative and in addition to all other rights and remedies available at law and in equity.
10.6 Survival. The provisions of this Agreement which by their sense and context should survive any termination or expiration of this Agreement, including without limitation Sections 2.5, 4, 8.3, 8.4, 9, 10 and 11 of this Agreement, shall survive termination of this Agreement and shall remain binding on the Parties.
11.1 As used in this Agreement, the term "Confidential Information" means: all information, including, but not limited to, the trade secrets and know-how of the respective Parties, that a reasonable person in the Parties' industries would regard as being proprietary or confidential, and any information marked "Confidential" or "Proprietary" and, in the case of Licensor, the Licensed Product; provided, however, Confidential Information shall not mean any information that:
The receiving Party shall have the burden of proof as to establishing by competent evidence any of the exceptions set forth in Section 11.1(a) to (e) above.11.2 In the event the receiving Party is legally requested or compelled in any form to disclose any of the disclosing Party's Confidential Information, the receiving Party, unless prohibited by applicable law, shall provide the disclosing Party with prompt written notice of such request, so that the disclosing Party may seek a protective order or pursue other appropriate remedies to protect the confidentiality of its information. If such protective order or other remedy is not obtained, the receiving Party will furnish only that portion of the Confidential Information which the receiving Party, upon the opinion of its counsel, is legally required to furnish. The receiving Party will reasonably assist the disclosing Party in its efforts to obtain a protective order or other remedies to protect or limit the disclosure of the information subject to the request.
11.3 Each Party acknowledges that in the performance of this Agreement a Party may receive Confidential Information from a disclosing Party and that such Confidential Information is the exclusive property of the disclosing Party. The receiving Party agrees to hold the Confidential Information of the disclosing Party in strict confidence in accordance with the provisions of this Agreement. A receiving Party:
11.4 Limitation on Disclosure. A receiving Party may disclose Confidential Information to its employees or agents under the control and direction of the receiving Party only in the normal course of business and on a need to know basis within the scope and purpose of this Agreement. Provided, however, prior to any disclosure all such agents shall have entered into written agreements with the receiving Party requiring such agents to treat and use all such Confidential Information in a manner consistent with the terms and conditions of this Agreement. Except as expressly set forth herein, no licenses under any patent, copyright or other Intellectual Property Rights of either Party are granted.
11.5 Return of Confidential Information. Upon any termination, cancellation, or rescission of this Agreement, a receiving Party shall, at the option of the disclosing Party: (i) surrender and deliver all Confidential Information of the other Party, including all copies thereof; or (ii) destroy the Confidential Information and all copies thereof and provide satisfactory evidence of such destruction in the form of an affidavit certifying such destruction to the disclosing Party within one (1) month following termination.
11.6 Disclosure of Licensed Software Constitutes Incurable Material Breach. Licensee acknowledges and agrees that any disclosure of the Licensed Software to a third party in violation of the terms of this Agreement constitutes a material, incurable breach of this Agreement and shall result in the automatic termination of this Agreement and the immediate termination of all licenses granted to Licensee by this Agreement. Licensee further agrees that it shall be strictly liable for all damages to Licensor that result from any disclosure of the Licensed Software to any third party.
12.1 Relationship of the Parties. The Parties hereto are and shall remain independent contractors. Nothing herein shall be deemed to establish a partnership, joint venture, or agency relationship between the Parties. Neither Party shall have the right to obligate or bind the other Party in any manner to any third party.12.2 Assignment/Sublicense. Licensee shall not, directly or indirectly, by operation of law or otherwise, transfer or assign the Licensed Product or this Agreement, or transfer, assign or sublicense any license rights granted hereunder, in whole or in part, without having secured the prior written consent of Licensor, which consent shall be at Licensor's sole discretion. Any attempted assignment in violation of this Section 12.2 shall be void. Licensor may freely assign this Agreement and the rights afforded hereunder to any entity which acquires title to the Licensed Product.
12.3 Notices. All notices required to be given pursuant to this Agreement shall be transmitted either by (i) delivery in person, (ii) registered mail, (iii) certified mail, return receipt requested, or (iv) overnight mail, addressed to the Party to be notified at the address given by such Party on the Sales Order, or to such other address (or person) as such Party shall specify by like notice hereunder.
12.4 Export Controls. Each Party to this Agreement acknowledges its obligations to control access to Technical Data (as defined by the U.S. Department of Commerce, Office of Export Administration) under the U.S. Export Control Laws and Regulations and agrees to adhere to all applicable U.S. Export Control Laws and Regulations with regard to any Technical Data received under this Agreement. Licensee may not re-export or divert the Licensed Products or any related Technical Data, documents or materials, or direct products thereof, to any other country or any resident thereof, unless Licensee has obtained appropriate prior authorization from Licensor and the U.S. Department of Commerce.
12.5 Compliance with Laws. Each Party shall comply with all applicable state, federal and local laws, executive orders and regulations in the performance of its obligations under this Agreement.
12.6 Headings. The headings and captions appearing in this Agreement have been inserted for the purposes of convenience and ready reference only and do not purport to and shall not be deemed to define, limit or extend the scope or intent of the provisions to which they appertain.
12.7 Form. Where the context so admits, words and expressions appearing in the singular in this Agreement may be interpreted in the plural, and vice versa.
12.8 Integration. This Agreement, together with the Sales Order, constitutes the entire agreement between the Parties and supersedes all prior agreements and understandings between them, whether written or oral, between them relating to the subject matter of this Agreement. This Agreement may not be supplemented, explained or interpreted by any evidence of trade usage or course of dealing. UNDER NO CIRCUMSTANCES MAY THE TERMS OF THIS AGREEMENT OR ANY LICENSOR SALES ORDER BE AMENDED, MODIFIED, SUPPLEMENTED, ALTERED, SUPERSEDED OR REPLACED BY ANY NON-LICENSOR PURCHASE ORDER OR OTHER SIMILAR INSTRUMENT DELIVERED BY LICENSEE TO LICENSOR. EACH PARTY ACKNOWLEDGES AND AGREES THAT, AS A CONVENIENCE TO LICENSEE AND ONLY FOR LICENSEE'S INTERNAL ACCOUNTING PROCEDURES, LICENSEE MAY DELIVER TO LICENSOR A LICENSEE PURCHASE ORDER OR OTHER SIMILAR DOCUMENT FOR ANY TRANSACTION CONTEMPLATED HEREUNDER AND THAT NO ACTION BY LICENSOR, INCLUDING LICENSOR'S DELIVERY OF ANY LICENSED MATERIALS OR ACCEPTANCE OF PAYMENT, SHALL BE DEEMED TO BE ACCEPTANCE OF ANY OF THE TERMS OR CONDITIONS CONTAINED IN SUCH LICENSEE PURCHASE ORDER OR OTHER SIMILAR INSTRUMENT AND SUCH TERMS AND CONDITIONS SHALL BE VOID AND OF NO FORCE OR EFFECT, UNLESS ACCEPTED BY LICENSOR PURSUANT TO A WRITTEN INSTRUMENT SIGNED BY BOTH PARTIES AND EXPRESSLY REFERRING TO THIS SECTION 12.8.
12.9. Modification or Amendment. No modification to, amendment of or other change in this Agreement shall be binding on either Party unless it is in writing and signed by authorized representatives of both Parties. Licensor may from time to time, in its discretion, modify this Agreement in connection with the issuance of certain Enhancements or new releases. In the event of a proposed modification to this Agreement, Licensor shall request Licensee to click to agree to the terms of the modified Software End User License Agreement prior to downloading any such Enhancement or new release, as the case may be, and any such modified Software End User License Agreement agreed to by Licensee shall supersede this Agreement.
12.10. Waiver. No waiver of any provision of this Agreement shall be effective unless made in writing and signed by the waiving Party, nor shall any such waiver, if made, constitute a waiver of any subsequent breach of the same or of any other provision of this Agreement.
12.11. Force Majeure. Neither Party shall be liable to the other by reason of any failure of performance hereunder (except obligations to pay) if such failure arises out of causes beyond such Party's reasonable control, despite the reasonable efforts, and without the fault or negligence of such Party. A Party experiencing such an event shall give as prompt notice as possible under the circumstances.
12.12. Fees and Expenses. If either Party institutes an action to enforce this Agreement or any of its terms, the prevailing Party shall also be entitled to recover all of its costs, expenses and reasonable attorneys' fees.
12.13. Authority to Contract. Each Party represents that it has the full power and authority to enter into this Agreement and to convey the rights herein conveyed.
12.14. Jurisdiction and Venue. Should any claim or controversy arise between the Parties under the terms of this Agreement or in furtherance of this Agreement, such claim or controversy shall be resolved only in the state or federal courts of Mecklenburg County, North Carolina, and said state and federal courts for the State of North Carolina shall be the only appropriate jurisdiction and venue therefore. Licensee hereby submits to said jurisdiction and venue.
12.15. Governing Law. This Agreement shall be construed in accordance with and governed by the substantive laws of the State of North Carolina. The Parties hereby agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
12.16. Severability. If any provision of this Agreement is held invalid or unenforceable under any applicable law, such invalidity or unenforceability will not affect any other provision of this Agreement that can be given effect without the invalid or unenforceable provision, and this Agreement shall be construed as if said invalid or unenforceable provision had not been contained herein.
12.17. Negotiation. This Agreement is the result of negotiation between the Parties and, accordingly, shall not be construed more strongly for or against either Party regardless of which Party was more responsible for the preparation of this Agreement or any portion thereof.
12.18. Government End User. Where the Licensed Products are used 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 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 Products clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Products--Restricted Rights at 48 CFR 52.227-19, as applicable.