InstallAnywhere
FLEXERA SOFTWARE END-USER LICENSE AGREEMENT
IMPORTANT-READ CAREFULLY: This End-User License Agreement (“Agreement”) is a legal contract between you, either (a) an individual user or (b) a business organization (in either case the “Licensee”), and Flexera Software for the Software. As used herein, for Licensees in Japan, “Flexera Software” means Flexera Software GK, a Godo Kaisha organized under the laws of Japan; for Licensees in Europe, Middle East, Africa, or India, “Flexera Software” means Flexera Software Limited, a private company limited by shares and incorporated in England and Wales with company number 6524874; for Licensees in Australia and New Zealand, “Flexera Software” means Flexera Software Pty Limited. with ABN 40 052 412 156 and for Licensees outside of the countries listed above, “Flexera Software” means Flexera Software LLC, a Delaware limited liability company. By clicking on the “I ACCEPT” button or by copying, downloading, accessing or otherwise using the Software, Licensee agrees to be bound by the terms of this Agreement and Licensee represents that Licensee is authorized to enter into this Agreement on behalf of Licensee’s corporate entity (if applicable). If Licensee does not wish to be bound by the terms of this Agreement, Licensee must click the “I DO NOT ACCEPT” button, and/or Licensee must not install, access or use the Software. If Licensee has a separately executed written software license agreement and order schedule with Flexera Software for the Software, then such separate agreement shall apply and this End User License Agreement shall be of no force or effect with respect to such Software.
I. DEFINITIONS “Affiliate” means any entity under the control of Licensee where “control” means ownership of or the right to control greater than 50% of the voting securities of such entity. “Cloud Site” means the website hosted by Flexera Software through which Licensee may access Cloud Software. “Cloud Software” means Software provided in a cloud-based software as a service delivery model. “Confidential Information” means any business and/or technical information that is received by a party (“Recipient”) from the disclosing party (“Discloser”) that a) is in written, recorded, graphical or other tangible form and is marked "Confidential" or “Trade Secret” or similar designation; b) is in oral form and identified by the Discloser as "Confidential" or “Trade Secret” or similar designation at the time of disclosure, with subsequent confirmation in writing within thirty (30) days of such disclosure; or c) could reasonably be construed to be confidential. “Contractor” means any third party contracted by Licensee to perform services on behalf of and for the benefit of Licensee. “Documentation” means the technical specification documentation generally made available by Flexera Software to its licensees with regard to the Software. “License Level” means the allowed level of usage of the Software licensed to Licensee in an Order Confirmation. “Licensee Site" means any location owned or leased solely by Licensee or an Affiliate or that portion of any shared space, such as a shared data center, attributable solely to Licensee or such Affiliate, or in the instance of an employee working remotely, that location from which such employee is working while using Licensee or Affiliate-provided equipment on which the Software may be installed. “On-Premise Software” means the object code form of the Software licensed to Licensee for installation at a Licensee site. “Order Confirmation” means a confirmation document provided by Flexera Software specifying the Software and Support and Maintenance (if any) purchased by Licensee that are subject to the terms of this Agreement. “Schedule” means the schedule attached to this End User License Agreement titled “Schedule” that outlines the terms and conditions applicable to the Software product(s) identified in such Schedule. “Services” means professional consulting services. Services shall not include Support and Maintenance which is otherwise defined herein. “Software” means the software products specified in an applicable Order Confirmation with which this Agreement was provided or referenced, including any Updates to the Software provided by Flexera Software to Licensee. Except as otherwise expressly set forth herein or in the applicable Order Confirmation, Software does not include source code. The Software may include features that will limit use of the Software in excess of the License Level. “Subscription Period” means the fixed period of time applicable to a subscription license set forth in an applicable Order Confirmation for which Licensee is licensed to use the Software. “Support and Maintenance” means the support and maintenance services set forth on the applicable Order Confirmation. “Updates” means patches, additions, modifications, and new versions of the Software incorporating such patches, additions and modifications that are provided to Licensee by Flexera Software and that are not included in the initial delivery of the Software. Updates do not include additions or modifications that Flexera Software considers to be a separate product or for which Flexera Software charges its customers extra or separately. “Warranty Period” means a period of ninety (90) days from initial delivery of the Software to Licensee pursuant to an Order Confirmation. “Work Product” means anything created or provided by Flexera Software (or its agents) on behalf of Licensee as a part of Services, including, but not limited to, deliverables, work product, code or software and any derivative, enhancement or modification thereof.
II. GENERAL TERMS
1. General Software Rights and Obligations.
a. License. The specific license terms for the Software licensed by Licensee with which this Agreement was provided will be set forth in the applicable Schedule to this Agreement.
b. License Term. An Order Confirmation will identify whether Licensee is purchasing a subscription license and, if a subscription, the Subscription Period.
c. Delivery. If Licensee licenses On-Premise Software, the On-Premise Software and associated Documentation shall be delivered by electronic means. If Licensee licenses Cloud Software, Licensee will receive access to the Cloud Software via the Cloud Site.
i. Cloud Site. The Cloud Site shall be part of a multi-tenant hosted environment and shall be provided subject to the Service Levels set forth in Schedule 6. Flexera Software will not materially diminish such Service Levels during the Subscription Period.
ii. Aggregate Usage Information. Flexera Software may aggregate information regarding Licensee’s use of the Cloud Site with information about use of the Cloud Site by Flexera Software’s other licensees, and may use such aggregated information to report on how the Cloud Site is used by Flexera Software’s licensees generally, for improvement and development of Flexera Software’s products, and for marketing purposes. In providing this aggregated information, Flexera Software shall not identify Licensee to any third party.
d. Installation and Copies. Licensee may install On-Premise Software on Licensee's or Affiliates’ machines only and only at Licensee Sites as many instances of the Software as is designated in the applicable Order Confirmation. Licensee may not make copies of the Software unless otherwise set forth in an applicable Order Confirmation. Notwithstanding the foregoing, Licensee may make a copy of the Software for back-up purposes. Notwithstanding the foregoing, provided that Licensee, Contractor and Flexera Software execute an offsite contractor form, Licensee may allow a Contractor to install On-Premise Software on Contractor’s own premises.
e. Use by Affiliates and Contractors. Subject to the terms and conditions of this Agreement, Licensee’s Affiliates and Contractors may also use the licenses granted to Licensee, provided that (a) such use is only for Licensee’s or such Affiliate’s benefit, and (b) Licensee agrees to remain responsible for each such Affiliate’s and Contractor’s compliance with the terms and conditions of this Agreement. Use of the Software by the Affiliates, Contractors and Licensee in the aggregate must be within the License Level. The Affiliate rights granted in this section shall not apply to any unlimited License Level licenses unless Affiliate usage is specifically designated in the applicable Order Confirmation.
f. License Restrictions. Licensee shall not (and shall not allow any third party to):
i. decompile, disassemble, or otherwise reverse engineer the Software or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Software by any means whatsoever (except and only to the extent that applicable law prohibits or limits reverse engineering restrictions, and then only with prior written notice to Flexera Software);
ii. distribute (except as expressly permitted herein), sell, sublicense, rent, lease or use the Software or Documentation (or any portion thereof) for time sharing, service bureau, hosting, service provider or like purposes;
iii. remove any product identification, proprietary, copyright or other notices contained in the Software, including but not limited to any such notices contained in the physical and/or electronic media or Documentation, in the Setup Wizard dialog or “about” boxes, in any of the runtime resources and/or in any web-presence or web-enabled notices, code or other embodiments originally contained in or otherwise created by the Software, or in any archival or back-up copies, if applicable;
iv. modify any part of the Software or Documentation, create a derivative work of any part of the Software or Documentation, or incorporate the Software into or with other software, except to the extent expressly authorized in writing by Flexera Software; or
v. publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Software or Documentation.
2. Ownership. Notwithstanding anything to the contrary contained herein, except for the limited license rights expressly provided herein, Flexera Software and its suppliers will retain all rights, title and interest (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Software and the Documentation and all copies thereof, modifications thereto, and derivative works based thereupon. Licensee acknowledges that it is obtaining only a limited license right to the Software and the Documentation and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights are being conveyed to Licensee under this Agreement or otherwise.
3. Support and Maintenance.
a. Support and Maintenance. Flexera Software shall provide the level of support and maintenance services (“Support and Maintenance”) set forth on the applicable Order Confirmation, if any, during such period as Licensee has paid the applicable fee. Support and Maintenance will be provided in accordance with Flexera Software’s then-current Support and Maintenance terms. Subscription license fees include Support and Maintenance for the duration of the Subscription Period.
b. Exclusions. Flexera Software will have no Support and Maintenance obligation to Licensee: (a) where the Software source code has been modified (except for Updates); or (b) for any Evaluation Software or Free Software.
c. Renewals. For perpetual licenses, in the event Licensee elects not to obtain or renew Support and Maintenance, Licensee may retain the Software and Documentation but will have no further right to Support and Maintenance for the Software. If Licensee wishes to reinstate lapsed Support and Maintenance for a perpetual license, Licensee may do so only within ninety (90) days from expiration of the Support and Maintenance term by paying Flexera Software an amount equal to (i) the then-applicable annual Support and Maintenance fee plus (ii) one-hundred fifty percent (150%) of the fees that would have been due had Licensee remained enrolled during the lapsed period. For perpetual licenses, Support and Maintenance may be renewed for the first renewal period (the duration of which may be no shorter than one year and no longer than the length of the initial maintenance period) for the same annual rate paid during the first Support and Maintenance Period.
4. Services. Services may be ordered by Licensee and will be provided by Flexera Software pursuant to this EULA. Unless otherwise agreed by the parties, Flexera Software will invoice Licensee for Services provided monthly.
a. Work Product.
i. Flexera Software grants to Licensee a perpetual, non-transferable, non-sublicensable, non-exclusive, worldwide license right to import, export, execute, reproduce, distribute, modify, adapt, make derivative works of, and use Work Product for any purpose, provided such use is not competitive with Flexera Software.
ii. Notwithstanding anything to the contrary contained herein, except for the limited license rights expressly provided herein, Flexera Software and its suppliers will retain all rights, title and interest (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Work Product. Licensee acknowledges that it is obtaining only a limited license right to the Work Product and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights are being conveyed to Licensee under this Agreement or otherwise.
iii. Licensee acknowledges that any source code, design documents, strategy reports or other similar Work Product shall be considered Flexera Software Confidential Information.
iv. Work Product shall not include any materials provided to Flexera Software by or on behalf of Licensee in connection with the Services. Licensee will retain any ownership interest (including all intellectual property rights) in such materials and Flexera Software will make no ownership claim with respect to such materials.
5. Payment Terms/Shipments. All payments are non-refundable (except as expressly set forth in this Agreement) and shall be made within thirty (30) days of the date of the applicable invoice. Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.
6. Taxes. Fees do not include taxes. If Flexera Software is required to pay any sales, use, GST, VAT, or other taxes in connection with Licensee’s order, other than taxes based on Flexera Software’s income, such taxes will be billed to and paid by Licensee. Licensee will make all payments of fees to Flexera Software free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of fees to Flexera Software will be Licensee’s sole responsibility and consequently the amount of such fees will be increased such that the net fee received by Flexera Software will be the same as if such withholding taxes were not imposed, and Licensee will provide Flexera Software with official receipts issued by the appropriate taxing authority, or such other evidence as the Flexera Software may reasonably request, to establish that such taxes have been paid.
7. Termination. Licensee’s license may be terminated by Flexera Software if (a) Licensee fails to make payment and/or (b) Licensee fails to comply with the terms of this Agreement within ten (10) days after receipt of written notice of such failure. Upon expiration of a subscription license or termination of any license, Licensee shall cease any and all use of the expired or terminated Software and destroy all copies of such Software and associated Documentation (including copies in storage media), and so certify to Flexera Software in writing. This requirement applies to all copies in any form, partial or complete.
8. Warranty.
a. Limited Software Performance Warranty. Flexera Software warrants to Licensee that during the Warranty Period the Software shall operate in substantial conformity with the Documentation. Flexera Software does not warrant that Licensee’s use of the Software will be uninterrupted or error-free or that any security mechanisms implemented by the Software will not have inherent limitations. Flexera Software’s sole liability (and Licensee’s exclusive remedy) for any breach of this warranty shall be, in Flexera Software’s sole discretion, to use commercially reasonable efforts to provide Licensee with an error-correction or work-around which corrects the reported non-conformity, to replace the non-conforming Software with conforming Software, or if Flexera Software determines such remedies to be impracticable within a reasonable period of time, to terminate the Agreement and refund the license fee paid for the Software. Flexera Software shall have no obligation with respect to a warranty claim unless notified of such claim in writing within the Warranty Period.
b. Exclusions. The limited warranties set forth in this Section shall not apply to warranty claims arising out of or relating to: (a) use of the Software with hardware or software not required in the Documentation; (b) modifications made to the Software source code; (c) defects in the Software due to accident, abuse or improper use by Licensee; or (d) Evaluation Software or Free Software.
c. Disclaimer. THE WARRANTIES IN THIS SECTION ARE LIMITED WARRANTIES AND EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SOFTWARE IS PROVIDED “AS IS”. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, NEITHER FLEXERA SOFTWARE NOR ITS SUPPLIERS MAKE ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. LICENSEE MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE LIMITED WARRANTY PERIOD.
9. Limitation of Liability.
a. NEITHER FLEXERA SOFTWARE NOR ITS SUPPLIERS, IF ANY, SHALL BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR FOR DAMAGE TO SYSTEMS OR DATA, EVEN IF FLEXERA SOFTWARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FLEXERA SOFTWARE'S LIABILITY FOR ANY DAMAGES HEREUNDER SHALL IN NO EVENT EXCEED THE AMOUNT OF LICENSE FEES THAT LICENSEE HAS PAID TO FLEXERA SOFTWARE.
b. FOR USERS WITHIN EUROPE, THE MIDDLE EAST, AFRICA, OR INDIA, NO PERSON WHO IS NOT A PARTY TO THIS AGREEMENT SHALL BE ENTITLED TO ENFORCE ANY TERMS OF THE SAME UNDER THE CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999.
c. FLEXERA SOFTWARE DOES NOT LIMIT OR EXCLUDE ITS LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
d. THE PARTIES AGREE THAT THE LIMITATIONS SPECIFIED IN THIS SECTION WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED IN ITS ESSENTIAL PURPOSE.
10. Assignment. Licensee may not, by operation of law or otherwise, transfer any license rights or other interests in Evaluation Software, Free Software, or Software labeled “Not for Resale” or “NFR.” Licensee may not assign this Agreement (or any part thereof) without the advance written consent of Flexera Software, except that Licensee may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of Licensee’s assets or voting securities; provided that (i) Licensee must permanently and wholly transfer all of Licensee’s rights and obligations under this Agreement; (ii) Licensee must permanently and wholly transfer all of the Software (including component parts, media, printed materials, upgrades, prior versions, and authenticity certificates); (iii) Licensee may retain no instances or copies (whole or partial) of the Software, (iv) no assignment by Licensee shall be effective until Licensee (x) provides written notice of such assignment, including the assignee’s written agreement to the terms of this Agreement, (y) purchases additional license capacity and/or Support and Maintenance as may be required as a result of such assignment, and (z) pays any outstanding amounts invoiced by Flexera Software. Notwithstanding the foregoing, Licensee may not, in any event, assign any limitless License Level licenses. Any attempt by Licensee to transfer or assign this Agreement except as expressly authorized under this Section will be null and void. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.
11. Controlling Law. For Licensees in North America and Latin America, this Agreement shall be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. For Licensees in Europe, Middle East, or Africa, this Agreement shall be governed by the substantive laws of England and Wales, excluding that body of law known as conflicts of law and without regard to the United Nations Convention on Contracts for the Sale of Goods. For Licensees in Australia, this Agreement shall be governed by the laws of the State of Victoria, Australia without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. For Licensees in Japan, this Agreement shall be governed by the laws of Japan without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. For Licensees in the Asia Pacific region other than Australia and Japan, this Agreement shall be governed by the laws of Special Administrative Region of Hong Kong without regard to conflicts of laws provisions thereof, and without regard to the Uniform Computer Information Transactions Act and the United Nations Convention on the International Sale of Goods.
12. Survival. Sections I.4 (Disclaimer), I.5 (Limitation of Liability), I.6 (Termination), II.2 (Payment and Delivery), II.3 (Taxes), II.4 (Support and Maintenance), II.5 (Warranty), II.6 (Limitation of Liability), II.7 (Termination), II.8 (Verification/Audits) (Disclaimer), II.7 (Limitation Liability), II.8 (Termination), and all of this Article III (General Terms), as well as any provision that by the very nature of which should survive shall survive any termination or expiration of this Agreement.
13. Compliance.
a. Verification/Audits. Upon Flexera Software’s reasonable request, Licensee will furnish Flexera Software with a signed statement confirming whether the Software is being used by Licensee in accordance with this Agreement. Further, during the term of this Agreement and for a period of one (1) year thereafter, with prior reasonable notice of at least five (5) days, Flexera Software may audit Licensee for the purpose of verifying the information provided by Licensee under this Agreement, and for the purpose of verifying that Licensee is conforming to the terms of this Agreement. Any such audit shall be conducted during regular business hours at Licensee’s facilities and shall not unreasonably interfere with Licensee’s business activities. If an audit reveals an underpayment or that the Licensee’s usage is greater than the License Level, then the Licensee shall immediately pay the difference in License fees and, if applicable, Support and Maintenance fees to bring the License Level into compliance. If an audit reveals that (i) Licensee has intentionally misrepresented its usage of the Software, (ii) Licensee materially breached this Agreement, or (iii) Licensee’s usage is more than 5% over the License Level, then Licensee shall pay Flexera Software’s reasonable costs of conducting the audit in addition to any fees due to Licensee’s misrepresentation or material breach. Audits shall be conducted no more than once annually.
b. Validation of Use. In order to protect the Software from unauthorized use and in order to confirm Licensee’s compliance with the license grants and restrictions set forth in this Agreement, the Software may contain validation procedures designed to detect and report to Flexera Software information identifying usage potentially violating the terms of this Agreement. This information does not contain any personally identifiable information of Licensee or the end user.
14. Confidentiality.
a. Confidential Information. Any software, documentation or technical information provided by Flexera Software (or its agents), performance information relating to the Software, and the terms of this Agreement shall be deemed “Trade Secrets” of Flexera Software without any marking or further designation.
b. Protection of Confidential Information. The Recipient shall a) have the right to disclose the Confidential Information only to its employees, consultants and Affiliates having a need to know and who have agreed in writing to be bound to confidentiality terms substantially similar to those contained herein; b) use at least as great a standard of care in protecting the Discloser’s Confidential Information as it uses to protect its own information of like character, but in any event not less than a reasonable degree of care; c) use such Confidential Information only in connection with its rights and/or obligations under this Agreement; and d) at the Discloser’s option return or destroy any or all Confidential Information upon the Discloser’s demand. Except as expressly authorized herein, for a period of three (3) years following the disclosure date of Confidential Information to the Recipient, the Recipient will hold in confidence and not make any unauthorized use or disclosure of any Confidential Information. No time limit shall apply to Confidential Information marked or otherwise identified as or deemed to be a “Trade Secret”.
c. Usage Data. Licensee understands that Flexera Software may utilize technology that gathers information about Licensee’s computer system, however, such data is used solely for the purpose of understanding machine types and other system-oriented information and does not contain any personally identifiable information of Licensee.
d. Exclusions. The Recipient’s nondisclosure obligation shall not apply to information that: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of the Recipient; (c) is rightfully obtained by the Recipient from a third party without breach of any confidentiality obligation; (d) is independently developed by employees of the Recipient who had no access to such information; or (e) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Discloser).
e. Equitable Relief. The Recipient acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Recipient the Discloser shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
15. Publicity. Either party may include the other party’s company name in a list of customers and/or suppliers without the other party’s written consent. Any other use of the other party’s name or logo is prohibited without such other party’s written consent.
16. Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
17. Amendments; Waivers. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Licensee will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.
18. Construction and Interpretation. The original of this Agreement has been written in English. Licensee waives any rights it may have under the law of its country to have this Agreement written in the language of that country. The use of the terms “including,” “include” or “includes” shall in all cases herein mean “including without limitation,” “include without limitation” or “includes without limitation,” respectively. Unless the context otherwise requires, words importing the singular include the plural and vice-versa. Words importing the singular include the plural and words importing the masculine include the feminine and vice versa where the context so requires. This Agreement shall be equally and fairly construed without reference to the identity of the party preparing this document. The parties waive the benefit of any statute, law or rule providing that in cases of uncertainty, contract language should be interpreted most strongly against the party who caused the uncertainty to exist. The headings and titles to the articles and sections of this Agreement are inserted for convenience only and shall not be deemed a part hereof or affect the construction or interpretation of any provision hereof.
19. Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Licensee acknowledges and agrees that the Software and Services may provide results and conclusions based on facts, assumptions, data, material, and other information that Flexera Software has not independently investigated or verified. Inaccuracy or incompleteness of such facts, assumptions, data, material, and other information could have a material effect on conclusions reached by the Software or Work Product; all actions taken or not taken by Licensee based on the output of the Software or Work Product shall be the responsibility of Licensee. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
20. Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, including but not limited to any strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or of telecommunications or data networks or services, or refusal of approval or a license by a government agency.
21. U.S. Government End-Users. The Software is commercial computer software. If the user or licensee of the Software is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Software, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Software was developed fully at private expense. All other use is prohibited. Licensee shall flow-down this provision to any of its authorized sublicensees (including but not limited to any Licensee Products, as applicable).
22. Export Compliance. Licensee acknowledges that the Software is subject to export restrictions by the United States government and import restrictions by certain foreign governments. Licensee shall not and shall not allow any third-party to remove or export from the United States or allow the export or re-export of any part of the Software or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) by any end user who has been prohibited from participating in United States export transactions by any federal agency of the United States government; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. Licensee agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list.
23. Equal Opportunity. Flexera Software agrees that it does not and will not discriminate against any employee or applicant for employment because of race, color, religion, age, sex, handicap, national origin, or sexual orientation.
24. Ambiguities. Each party and its counsel have participated fully in the review and revision of this Agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in interpreting this Agreement.
25. Remedies Cumulative. Except as otherwise expressly stated in this Agreement, the rights and remedies of the parties under this Agreement are cumulative and not exclusive of any rights or remedies to which the parties are entitled by law. The exercise by either party of any right or remedy under this Agreement or under applicable law will not preclude such party from exercising any other right or remedy under this Agreement or to which such party is entitled by law.
26. Schedules. The following Schedules are attached to this End User License Agreement and are hereby incorporated by reference:
a. Schedule 1 – Terms and Conditions for Installation Products
b. Schedule 2 - Terms and Conditions for Application Readiness Products
c. Schedule 3 – Terms and Conditions for Software License Optimization Products
d. Schedule 4 - Terms and Conditions for Evaluation and Free Software
e. Schedule 5 – Terms and Conditions for Not for Resale Software
f. Schedule 6 – Cloud Software Service Levels
27. Entire Agreement. This Agreement, including all Schedules, is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.
SCHEDULE 1
TERMS AND CONDITIONS FOR INSTALLATION PRODUCTS
The terms of this Schedule 1 shall apply to all Installation products licensed by Flexera Software to Licensee. Any terms not defined in this Schedule 1 shall have the meanings ascribed to them in the Agreement. The provisions of this Schedule 1 shall be in addition to the terms included in the main body of the Agreement, provided that in the event of a conflict between the terms included in this Schedule 1 and the terms of the main body of the Agreement, the terms included in this Schedule 1 shall control. As of May 2015, the following products are considered “Installation products” and such list may be updated time to time by Flexera Software in its sole discretion without amending this Schedule 1:
InstallShield Express
InstallShield Professional
InstallShield Premier
InstallShield Standalone Build
InstallShield Collaboration
InstallShield Limited Edition for Visual Studio
InstallAnywhere Professional
InstallAnywhere Premier
InstallAnywhere Standalone Build
InstallAnywhere Cloud Pack
I. DEFINITIONS
“Build System” means a machine or group of machines dedicated to compiling code via automated or scheduled tasks.
“Upgrade” means a new version of Software made available by Flexera Software, and identified in an invoice, Order Confirmation, or SKU as an “Upgrade".
“User” means the individuals who access the Software for the purposes of designing and developing software installations.
II. INSTALLSHIELD LIMITED EDITION FOR VISUAL STUDIO
The use of InstallShield Limited Edition for Visual Studio will be governed by the terms set forth in this Article II, in addition to the terms set forth in the Agreement. Each individual User may only register for a single instance of the Limited Edition Software. In the event of a conflict between the terms of this Article II and the rest of the Agreement, the terms of this Article II shall prevail.
1. Grant of License. InstallShield Limited Edition for Visual Studio is a functionally limited version of the InstallShield software and is intended specifically for use with Visual Studio. Subject to all of the terms and conditions of this Agreement, Flexera Software grants Licensee a limited, internal use, non-exclusive, non-transferable license to use the Software solely for Licensee’s internal business requirements at Licensee’s site(s) only. Flexera Software grants Licensee the right to install and use the software on a single computer to be used exclusively with Visual Studio and the right to install and use up to two (2) additional instances for use within a Team Foundation Server environment. For the purposes of this Section, Software shall also include any Documentation of the Software product provided to Licensee under this Agreement.
2. Disclaimer of Warranty. THE SOFTWARE IS PROVIDED ON AN "AS IS" BASIS. NEITHER FLEXERA SOFTWARE NOR ITS SUPPLIERS MAKE ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. LICENSEE MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTER OF (I) THE STATUTORILY REQUIRED PERIOD OR (II) THIRTY (30) DAYS FROM LICENSEE’S ACCEPTANCE OF THIS AGREEMENT.
3. Limitation of Liability. IN NO EVENT WILL FLEXERA SOFTWARE BE LIABLE FOR ANY DAMAGES, INCLUDING LOST PROFITS OR DATA, OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES, ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE OR ANY DATA SUPPLIED THEREWITH, EVEN IF FLEXERA SOFTWARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. IN NO CASE WILL FLEXERA SOFTWARE’S LIABILITY FOR ANY DAMAGES HEREUNDER EXCEED FIFTY DOLLARS (US $50).
III. LICENSE RIGHTS AND OBLIGATIONS
1. License.
a. Grant of License. Subject to all of the terms and conditions of this Agreement and upon Licensee’s payment of the fees shown on the invoice and acceptance of this Agreement, Flexera Software grants Licensee a non-transferable, non-sublicensable, non-exclusive license to use Software for internal purposes at Licensee’s site(s) only, but only in accordance with (a) the Documentation, (b) this Agreement and (c) the License Level. For the purposes of this Section, Software shall also include any Documentation and any Updates provided to Licensee under this Agreement. For Software that will be used in a service provider role, the terms of Article IV shall apply; licenses not identified as “Service Provider” licenses on an Order Confirmation may not be used in a service provider capacity and shall be governed by this Article III. For the purpose of clarity, “internal purposes” shall include distribution of installation programs of Licensee products both internally within Licensee and externally to Licensee’s customers. Distribution of installation programs of non-Licensee products shall require a service provider license as governed by the terms of Article IV below.
i. If Licensee has licensed the InstallAnywhere Standalone Build Node-Lock Software, Licensee may install and use one copy of the Software on a single computer residing on Licensee’s premises only for Licensee’s internal business purposes.
b. License Models. Licensee may be licensed pursuant to one of the following license models, which will be identified on the applicable Order Confirmation.
i. Node-Locked Licenses. If Licensee has licensed Software on a node-locked basis, Licensee may install and use one instance of the Software on a single computer either physically installed or on a virtual image on that computer only at Licensee’s site(s) for Licensee’s internal business purposes only in accordance with the License Level. A node-locked license is limited to use by a single User on a single computer or virtual image; Licensee may not install the Software on a shared computer. Copying a virtual image for the purposes of using the image either simultaneously or as a replacement on another machine is strictly prohibited.
ii. Concurrent Licenses. If Licensee has licensed on a concurrent basis, Licensee may install the Software on any machine at Licensee’s site(s) for Licensee’s internal business purposes only in accordance with the License Level. All machines using the Software must have the ability to communicate with a license server to be authorized to use the Software. For the purpose of certification as set forth in the Agreement, the number of concurrent Users is the highest number of Users that accessed the Software at any single point during the previous year.
c. Standalone Build Licenses: In addition to the use rights for the Software, Standalone Build Licenses may also be run on a separate Build System but only if run by automated processes or by a User.
d. Upgrades. Upgrades, if provided to Licensee, may be licensed to Licensee by Flexera Software with additional or different terms and conditions. Upgrades may be used only by the User of the original version of the Software that is being upgraded. After installation of an Upgrade, such User may continue to use the prior version(s) of the Software in accordance with the terms and conditions applicable to such version, provided that (i) the prior version(s) may only be used by the same User of the Upgrade; (ii) Licensee acknowledges that any obligation Flexera Software may have to support the prior version(s) may be ended upon the availability of the Upgrade.
e. Dual-Media Software. Licensee may receive the Software in more than one medium (electronic and on a DVD, for example). Receipt of the Software in more than a single manner (electronic or on a DVD, for example) does not expand the license rights granted to Licensee hereunder. Licensee’s use of the Software is limited to the number of licenses (instances) that Licensee has acquired overall, regardless of number or type of media on which it has been provided.
f. Transfers. Transfers of licenses that are the result of employee turnover or reassignment are allowed, provided that such transfers do not occur more frequently than annually.
2. Redistributable Files. The Software component parts may not be separated for use on more than one computer, except as set forth in this Agreement. Licensee may copy the files specifically identified in the documentation as “redistributables” and redistribute such files to Licensee’s end users of Licensee’s products, provided that: (a) such products add primary and substantial functionality to the redistributables, (b) all copies of the redistributables must be exact and unmodified; and (c) Licensee grants Licensee’s end users a limited, personal, non-exclusive and non-transferable license to use the redistributables only to the extent required for the permitted operation of Licensee’s products and not to distribute them further. Licensee will reproduce with the redistributables all applicable trademarks and copyright notices that accompany the Software, but Licensee may not use Flexera Software’s name, logos or trademarks to market Licensee’s products.
IV. SERVICE PROVIDER USE LICENSE RIGHTS AND OBLIGATIONS
This Article IV sets forth the terms and conditions under which Licensee has licensed quantities of the Software for use in the delivery of Software Engineering Services to its Customers, as those terms are defined below.
1. Definitions.
1.1. “Customers” means the customers of Licensee for which Licensee has purchased a service provider license to use the Software to provide Software Engineering Services. Licensee may not be its own Customer. Licensee shall be solely responsible for the Customer relationship; Flexera Software shall have no obligations whatsoever to Customers.
1.2. “Software Engineering Services” means those services that Licensee provides to Customers utilizing the Software for the purpose of creation or modification of installation programs of Customer products.
2. Grant of License. Subject to all of the terms and conditions of this Agreement and the applicable Order Confirmation, Flexera Software grants Licensee a non-transferable, non-sublicensable, non-exclusive license to use, within the License Level, for the sole purpose of providing Software Engineering Services to Customers, (i) Software, in accordance with the Documentation, and (ii) Documentation.
3. Installation. In addition to the installation rights set forth in the Agreement, Licensee may install and operate the Software at a Customer location.
4. License Models.
4.1. Node-Locked Licenses. If Licensee has licensed Software on a node-locked basis, Licensee may install and use one instance of the Software on a single computer either physically installed or on a virtual image on that computer only at Licensee’s site(s) for Licensee’s internal business purposes only in accordance with the License Level. A node-locked license is limited to use by a single User on a single computer or virtual image; Licensee may not install the Software on a shared computer. Copying a virtual image for the purposes of using the image either simultaneously or as a replacement on another machine is strictly prohibited.
4.2. Concurrent Licenses. If Licensee has licensed on a concurrent basis, Licensee may install the Software on any machine at Licensee’s site(s) for Licensee’s internal business purposes only in accordance with the License Level. All machines using the Software must have the ability to communicate with a license server to be authorized to use the Software. For the purpose of certification as set forth in the Agreement, the number of concurrent Users is the highest number of Users that accessed the Software at any single point during the previous year.
5. License Restrictions.
5.1. Software may not be left behind at Customer’s site or on Customer’s systems once the Software Engineering Services are completed. If computers, servers or networks on which the Software is installed are no longer owned or leased by Licensee, Licensee must remove the Software from such computers, servers or networks.
5.2. Licensee may not use the Software for its own internal purposes.
6. Licensee Obligations.
6.1. Representations. Licensee shall not make any representations, guarantees or warranties of any type with respect to the specifications, features, capabilities or otherwise concerning the Software which are in addition to or inconsistent with those set forth in the product descriptions or promotional materials delivered by Flexera Software to Licensee hereunder. In no event shall Licensee make any representation, warranty or guarantee by or on behalf of Flexera Software. Licensee shall represent Flexera Software and its Software in a positive and professional manner at all times. Licensee shall not re-brand or otherwise represent the software as anything other than [Product Name] by Flexera Software LLC without express written approval from Flexera Software. This shall include, but not be limited to, reports, splash screens, documentation and all other intell