END-USER LICENSE AGREEMENT
Please read this End-User License Agreement carefully. It is very important that you check that you are purchasing Persistent Systems, LLC (“Persistent”) software or equipment from an Approved Source and that you or the entity you represent (the “Customer”) have been registered as the end user for the purposes of this End-User License Agreement. If you are not registered as the end user then you have no license to use the Software and the limited warranty in this end-user license agreement does not apply. Assuming you have purchased from an Approved Source, downloading, installing or using persistent or persistent-supplied software constitutes acceptance of this agreement.
Persistent is willing to license the Software to you only upon the condition that you purchased the software from an approved source and that you accept all the terms contained in this end-user license agreement, plus any additional limitations on the license set forth in a supplemental agreement (“Supplemental License Agreement”) accompanying the product or available at the time of your order. To the extent there is any conflict between the terms of this End-User License Agreement and any Supplemental License Agreement, the Supplemental License agreement applies. (This End-User License Agreement and any Supplemental License Agreement are, collectively, the “Agreement.”)
By downloading, installing, or using the Software, you are representing that you purchased the Software from an Approved Source and are binding yourself to the Agreement. If you do not agree to all the terms of the agreement, then persistent is unwilling to license the software to you and (a) you may not download, Install or use the software, and (b) you may return the software (including any unopened CD package and any written materials) for a full refund, or, if the software and written materials are supplied as part of another product, you may return the entire product for a full refund. Your right to return and refund expires 30 days after purchase from an Approved Source, and applies only if you are the original and registered end-user purchaser.
“Software” means computer programs, including firmware and computer programs embedded in Persistent equipment, as provided to Customer by an Approved Source, and any upgrades, updates, bug fixes, or modified versions of computer programs (collectively, “upgrades”), or backup copies of any of the foregoing.
“Approved Source” means (a) Persistent; or (b) a reseller or systems integrator authorized by Persistent to sell Persistent equipment, software, and services within your territory to end users.
The following terms of the Agreement govern Customer’s use of the Software, except to the extent: (a) there is a separate signed contract between Customer and Persistent governing Customer’s use of the Software, or (b) the Software includes a separate “click-accept” license agreement or third-party license agreement as part of the installation or download process governing Customer’s use of the Software.
To the extent that there is a conflict between the provisions of the foregoing documents, the order of precedence is: (1) the signed contract, (2) the click-accept agreement or third-party license agreement, and (3) the Agreement.
License. Conditioned upon compliance with the terms and conditions of the Agreement, Persistent grants to Customer a non-exclusive and non-transferable license to use for Customer’s internal business purposes the Software and the Documentation for which Customer has paid the required license fees to an Approved Source. “Documentation” means written information (whether contained in user or technical manuals, training materials, specifications, or otherwise) pertaining to the Software and made available by an Approved Source with the Software in any manner (including on CD-Rom, or on-line). In order to use the Software, Customer may be required to input a registration number or product authorization key and register Customer’s copy of the Software online at Persistent’s website to obtain the necessary license key or license file. Customer’s license to use the Software is limited to, and Customer may not use the Software in excess of, a single hardware chassis or card or such other limitations as are set forth in the applicable Supplemental License Agreement or in the applicable purchase order that has been accepted by an Approved Source and for which Customer has paid to an Approved Source the required license fee (the “Purchase Order”).
Unless otherwise expressly provided in the Documentation or any applicable Supplemental License Agreement, Customer may use the Software solely as embedded in, for execution on, or (where the applicable Documentation permits installation on non- Persistent equipment) for communication with Persistent equipment owned or leased by Customer and used for Customer’s internal business purposes.
This End-User License Agreement grants no other licenses by implication, estoppel, or otherwise.
For evaluation or beta copies for which Persistent does not charge a license fee, the above requirement to pay license fees does not apply.
General Limitations. This is a license, not a transfer of title, to the Software and Documentation, and Persistent retains ownership of all copies of the Software and Documentation. Customer acknowledges that the Software and Documentation contain trade secrets of Persistent or its suppliers or licensors, including the specific internal design and structure of individual programs and associated interface information. Except as otherwise expressly provided under the Agreement, Customer may use the Software only in connection with the use of Persistentʼs equipment purchased by Customer from an Approved Source, and Customer has no right to and may not: (i) transfer, assign, or sublicense its license rights to any other person or entity (other than in compliance with any Persistent relicensing/transfer policy then in force), or use the Software on Persistent equipment not purchased by the Customer from an Approved Source or on secondhand Persistent equipment, and Customer acknowledges that any attempted transfer, assignment, sublicense or use will be void; (ii) make error corrections to or otherwise modify or adapt the Software or create derivative works based upon the Software, or permit third parties to do the same; (iii) reverse engineer or decompile, decrypt, disassemble or otherwise reduce the Software to human-readable form, except to the extent otherwise expressly permitted under applicable law notwithstanding this restriction or except to the extent that Persistent is legally required to permit such specific activity pursuant to any applicable open source license; (iv) publish any results of benchmark tests run on the Software; (v) use or permit the Software to be used to perform services for third parties, whether on a service-bureau or time-sharing basis or otherwise, without the prior written authorization of Persistent; or (vi) disclose, provide, or otherwise make available trade secrets contained within the Software and Documentation in any form to any third party without the prior written consent of Persistent. Customer must implement reasonable security measures to protect such trade secrets. To the extent required by applicable law, and at Customer’s written request, Persistent must provide Customer with the interface information needed to achieve interoperability between the Software and another independently created program, on payment of Persistent’s applicable fee, if any. Customer must observe strict obligations of confidentiality with respect to such information and must use such information in compliance with any applicable terms and conditions upon which Persistent makes such information available.
Software, Upgrades and Additional Copies. NOTWITHSTANDING ANY OTHER PROVISION OF THE AGREEMENT: (i) CUSTOMER HAS NO LICENSE OR RIGHT TO MAKE OR USE ANY ADDITIONAL COPIES OF THE SOFTWARE OR UPGRADES UNLESS CUSTOMER, AT THE TIME OF MAKING OR ACQUIRING SUCH COPY OR UPGRADE, ALREADY HOLDS A VALID LICENSE TO THE ORIGINAL SOFTWARE AND HAS PAID THE APPLICABLE FEE TO AN APPROVED SOURCE FOR THE UPGRADE OR ADDITIONAL COPIES; (ii) USE OF UPGRADES IS LIMITED TO PERSISTENT EQUIPMENT SUPPLIED BY AN APPROVED SOURCE FOR WHICH CUSTOMER IS THE ORIGINAL END-USER PURCHASER OR LESSEE OR OTHERWISE HOLDS A VALID LICENSE TO USE THE SOFTWARE THAT IS BEING UPGRADED; AND (iii) THE MAKING AND USE OF ADDITIONAL COPIES IS LIMITED TO NECESSARY BACKUP PURPOSES ONLY.
Proprietary Notices. Customer must maintain and reproduce all copyright, proprietary, and other notices on all copies, in any form, of the Software in the same form and manner that such notices are included on the Software. Except as expressly authorized in the Agreement, Customer may not make any copies or duplicates of any Software without the prior written permission of Persistent.
Term and Termination. The Agreement and the license granted in this End-User
License Agreement remain effective until terminated. Customer may terminate the Agreement and the license at any time by destroying all copies of Software and any Documentation. Customer’s rights under the Agreement will terminate immediately without notice from Persistent if Customer fails to comply with any provision of the Agreement. Upon termination, Customer must destroy all copies of Software and Documentation in its possession or control. All confidentiality obligations of Customer, all restrictions and limitations imposed on the Customer under the section titled “General Limitations” and all limitations of liability and disclaimers and restrictions of warranty will survive termination of this Agreement. In addition, the provisions of the sections titled “U.S. Government End-User Purchasers” and “General Terms Applicable to the Limited Warranty Statement and End-User License Agreement” will survive termination of the Agreement.
Customer Records. Customer grants to Persistent and its independent accountants the right to examine Customer’s books, records, and accounts during Customer’s normal business hours to verify compliance with this Agreement. In the event such audit discloses non-compliance with this Agreement, Customer must promptly pay to Persistent the appropriate license fees, plus the reasonable cost of conducting the audit.
Export, Re-Export, Transfer and Use Controls. The Software, Documentation and technology or direct products thereof (“Software and T echnology”), supplied by Persistent under the Agreement are subject to export controls under the laws and regulations of the United States (“U.S.”) and any other applicable countries’ laws and regulations. Customer must comply with such laws and regulations governing export, re- export, import, transfer and use of Persistent Software and Technology and must obtain all required U.S. and local authorizations, permits, or licenses. Persistent and Customer must provide each other information, support documents, and assistance as may reasonably be required by the other in connection with securing authorizations or licenses.
U.S. Government End-User Purchasers. The Software and Documentation qualify as “commercial items,” as that term is defined at Federal Acquisition Regulation (“FAR”) (48 C.F.R.) 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in FAR 12.212. Consistent with FAR 12.212 and DoD FAR Supp. 227.7202-1 through 227.7202-4, and notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which the Agreement may be incorporated, Customer may provide to Government end user or, if the Agreement is direct, Government end user will acquire, the Software and Documentation with only those rights set forth in the Agreement. Use of either the Software or Documentation or both constitutes agreement by the Government that the Software and Documentation are “commercial computer software” and “commercial computer software documentation,” and constitutes acceptance of the rights and restrictions in the Agreement.
Identified Components; Additional Terms. The Software may contain or be delivered with one or more components, which may include third-party components, identified by Persistent in the Documentation, readme.txt file, third-party click-accept or elsewhere (e.g. on www.persistentsystems.com) (the “Identified Component(s)”) as being subject to different license-agreement terms, disclaimers of warranties, limited warranties or other terms and conditions (collectively, “Additional Terms”) than those set forth in the Agreement. You agree to the applicable Additional Terms for any such Identified Component(s).
Limited Warranty. Subject to the limitations and conditions set forth in this End- User License Agreement, Persistent warrants that commencing from the date of shipment to Customer (but in case of resale by an Approved Source other than Persistent, commencing not more than 90 days after original shipment by Persistent), and continuing for a period of the longer of (a) 90 days or (b) the warranty period (if any) expressly set forth as applicable specifically to software in the warranty card accompanying the product of which the Software is a part (the “Product”) (if any): (a) the media on which the Software is furnished will be free of defects in materials and workmanship under normal use; and (b) the Software substantially conforms to the Documentation. The date of shipment of a Product by Persistent is set forth on the packaging material in which the Product is shipped. Except for the foregoing, the Software is provided “AS IS”. This limited warranty extends only to the Software purchased from an Approved Source by a Customer who is the first registered end user. Customer’s sole and exclusive remedy and the entire liability of Persistent and its suppliers under this limited warranty will be, at Persistentʼs option, (i) replacement of defective media and/or (ii) repair, replacement, or refund of the purchase price of the Software, in both cases subject to the condition that any error or defect constituting a breach of this limited warranty is reported to the Approved Source supplying the Software to Customer, within the warranty period. Persistent or the Approved Source supplying the Software to Customer may, at its option, require return of the Software and/or Documentation as a condition to the remedy. In no event does Persistent warrant that the Software is error free or that Customer will be able to operate the Software without problems or interruptions. In addition, due to the continual development of new techniques for intruding upon and attacking networks, Persistent does not warrant that the Software or any equipment, system or network on which the Software is used will be free of vulnerability to intrusion or attack.
Warranty Restrictions. This warranty does not apply if the Software, Product or any other equipment upon which the Software is authorized to be used (a) has been altered, except by Persistent or its authorized representative, (b) has not been installed, operated, repaired, or maintained in accordance with instructions supplied by Persistent, (c) has been subjected to abnormal physical or electrical stress, abnormal environmental conditions, misuse, negligence, or accident; or (d) is licensed for beta, evaluation, testing or demonstration purposes. The Software warranty also does not apply to (e) any temporary Software modules; (f) any Software for which an Approved Source does not receive a license fee; and (i) Software supplied by any third party which is not an Approved Source.
DISCLAIMER OF WARRANTY. EXCEPT AS SPECIFIED IN THIS WARRANTY SECTION, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON- INFRINGEMENT, SATISFACTORY QUALITY, NON-INTERFERENCE, ACCURACY OF INFORMATIONAL CONTENT, OR ARISING FROM A COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW AND ARE EXPRESSLY DISCLAIMED BY PERSISTENT, ITS SUPPLIERS AND LICENSORS. TO THE EXTENT THAT ANY OF THE SAME CANNOT BE EXCLUDED, SUCH IMPLIED CONDITION, REPRESENTATION AND/OR WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD REFERRED TO IN THE “LIMITED WARRANTY” SECTION ABOVE. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, THE ABOVE LIMITATION MAY NOT APPLY IN SUCH STATES. THIS WARRANTY GIVES CUSTOMER SPECIFIC LEGAL RIGHTS, AND CUSTOMER MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION. THIS DISCLAIMER AND EXCLUSION APPLY EVEN IF THE EXPRESS WARRANTY SET FORTH ABOVE FAILS OF ITS ESSENTIAL PURPOSE.
DISCLAIMER OF LIABILITIES—LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, ALL LIABILITY OF PERSISTENT, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, AND LICENSORS COLLECTIVELY, TO CUSTOMER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY OR OTHERWISE, CANNOT EXCEED THE PRICE PAID BY CUSTOMER TO ANY APPROVED SOURCE FOR THE SOFTWARE THAT GAVE RISE TO THE CLAIM OR IF THE SOFTWARE IS PART OF ANOTHER PRODUCT, THE PRICE PAID FOR SUCH OTHER PRODUCT. THIS LIMITATION OF LIABILITY FOR SOFTWARE IS CUMULATIVE AND NOT PER INCIDENT (I.E. THE EXISTENCE OF TWO OR MORE CLAIMS WILL NOT ENLARGE THIS LIMIT). NOTHING IN THE AGREEMENT SHALL LIMIT (I) PERSISTENT’S LIABILITY FOR FRAUDULENT MISREPRESENTATION, OR (II) ANY LIABILITY OF PERSISTENT WHICH CANNOT BE EXCLUDED UNDER APPLICABLE LAW.
DISCLAIMER OF LIABILITIES—WAIVER OF CONSEQUENTIAL DAMAGES AND OTHER LOSSES. REGARDLESS OF WHETHER ANY REMEDY SET FORTH IN THIS END-USER LICENSE AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT WILL PERSISTENT OR ITS SUPPLIERS BE LIABLE FOR ANY LOST REVENUE, PROFIT, OR LOST OR DAMAGED DATA, BUSINESS
INTERRUPTION, LOSS OF CAPITAL, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY OR WHETHER ARISING OUT OF THE USE OF OR INABILITY TO USE SOFTWARE OR OTHERWISE AND EVEN IF PERSISTENT OR ITS SUPPLIERS OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMIT A TION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY OR MAY NOT FULLY APPLY TO YOU. THE FOREGOING EXCLUSION DOES NOT APPLY TO ANY LIABILITY ARISING OUT OF OR IN CONNECTION WITH: (i) FRAUDULENT MISREPRESENTATION, OR (ii) PERSISTENTʼS LIABILITY IN CONNECTION WITH ANY TERMS THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW.
Customer acknowledges and agrees that Persistent has set its prices and entered into the Agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth in this End-User License Agreement, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the parties.
Controlling Law, Jurisdiction. The Agreement and the warranties set forth in this End-User License Agreement (“Warranties”) are controlled by and construed under the laws of the State of New York, United States of America, notwithstanding any choice or conflicts of law provisions; and the state and federal courts of New York, New York have exclusive jurisdiction over any claim arising under the Agreement or Warranties. For all countries referred to above, the parties specifically disclaim the application of the UN Convention on Contracts for the International Sale of Goods. Notwithstanding the foregoing, either party may seek interim injunctive relief in any court of appropriate jurisdiction with respect to any alleged breach of such party’s intellectual property or proprietary rights.
Severability. If any portion of the Agreement is found to be void or unenforceable, the remaining provisions of the Agreement and Warranties will remain in full force and effect.
Entire Agreement. Except as expressly provided in the Agreement, the Agreement constitutes the entire agreement between the parties with respect to the license of the Software and Documentation and supersedes any conflicting or additional terms contained in any Purchase Order or elsewhere, all of which terms are excluded. The Agreement has been written in the English language, and the parties agree that the English version will govern.