EULA - End User License Agreement
This End User License Agreement (“EULA”) is a legal agreement between You (“You” and “Your” includes a person and/or an individual entity) and Interprise Software Solutions, Inc. (“ISSI”) concerning the software products(s) (hereinafter referred to as “Software”). The Software includes all component parts, the associated media, any printed materials, any updates, and any “online” or electronic documentation, as applicable. By accessing, installing, copying, downloading, accessing or otherwise using the Software, You agree to be bound by the terms of this EULA. If You do not agree to the terms of this EULA, ISSI is unwilling to license the Software to You. In such event, You may not access, use or copy the Software, and You should promptly contact ISSI or your Supplier for instructions on returning the Software. WRITTEN ASSENT IS NOT A PREREQUISITE TO THE VALIDITY OR ENFORCEABILITY OF THIS EULA.
1. GRANT OF LICENSE.
This agreement grants you the following rights.
Subject to the payment of all applicable license fees, and the terms and conditions of this EULA, ISSI hereby grants to You a limited, non-sublicensable, non-exclusive, non-transferable right to install and run one copy of the specified version of the Software and the accompanying documentation, solely for Your individual use. This EULA authorizes You to make one copy of the Software solely for backup or archival purposes, provided that the copy You make contains all of the proprietary notices set forth in or on the original version of the Software. Upon receipt of the appropriate Software registration information, ISSI will provide You an alphanumeric key (the “Activation Code”) to enable You to use the Software pursuant to the terms of this EULA. Documentation shall include, but not be limited to, any printed materials, “online” or electronic data provided by or obtained from ISSI with regard to this Software (“Documentation”). The Software and Documentation are licensed, not sold. Even though copies of the Software may be provided on media of different formats, copies of the Software on different media formats do not constitute multiple licenses to the Software.
(i) SINGLE USER LICENSE
If this Software is licensed as a single user product, You may use only one copy of the Software, by not more than one user at a time, on a total of one computer or workstation for which the Software was designed (“Client Device”). The component parts of the Software may not be used individually or jointly in full or in part on more than one Client Device. The Software is “in use” on a computer when it is loaded into the temporary memory (i.e., random access memory or RAM) of that Client Device.
(ii) MULTI USER LICENSE
If the Software is licensed with multi-user or networked license terms, You may use the Software on one database server computer only within a multi-user or networked environment. Use of software, hardware or services that bypass any Software license restrictions and/or reduce the number of concurrent users accessing or utilizing the Software expressly does not reduce the number of licenses required. You may install the client license element of the software on to as many Client Devices that You exclusively use or own. The Server license element of the software can only be installed to one database server. The number of users You have may have purchased are concurrent users. So it is possible to purchase a 5 user license which allows you to install the client license onto for example 10 client devices but the server license will only let 5 users concurrently have access to the data and software.
1.5 PRODUCT PATCH, PLUG-IN, UPDATES OR SCRIPTS
All patch, plug-in, update or script(s) are subject to the terms and conditions of this EULA and are subject to the ISSI Warranty Disclaimer (as set out in section 9) and Limitation of Liability (as set out in section 10), as applicable. If this product is a patch, plug-in, update or script(s), You are granted a non-exclusive license to use such patch, plug-in, update or script(s) provided that You still possess a valid license from ISSI for the Original Application. Additional license terms may accompany patch, plug-in, update or script(s) and by installing, copying, or otherwise using any patch, plug-in, update or script(s), You agree to be bound by those terms. If You do not agree to the additional license terms accompanying such patch, plug-in, update or script(s), do not install, copy, or otherwise use such patch, plug-in, update or script(s).
The Software is owned by ISSI and is protected by copyright laws and international treaty provisions, as well as other intellectual property laws and treaties. The Software is licensed, not sold. You must therefore treat the Software like any other copyrighted material. ISSI retain all title to and, except as expressly and unambiguously licensed herein, all rights and interest in (a) the Software, including, but not limited to, all copies, versions, customizations, compilations and derivative works thereof (by whomever produced) and all related Documentation; (b) the ISSI trademarks, service marks, trade names, icons and logos; (c) any and all copyright rights, patent rights, trade secret rights and other intellectual property and proprietary rights throughout the world in the foregoing; and all Confidential Information (as defined in Section 20 below). You acknowledge that Your possession, installation, or use of the Software does not transfer to You any ownership, title, or interest of any kind to the intellectual property in the Software, and that You will not acquire any rights to the Software except as expressly set forth in this EULA. You agree that all backup, archival, or any other type of copies of the Software and Documentation will contain the same proprietary notices that appear on and in the Software and Documentation.
Should You decide to submit any materials to ISSI via electronic mail, or otherwise, whether as feedback, data, questions, comments, ideas, concepts, techniques, suggestions or the like, You agree that such submissions are unrestricted and shall be deemed non-confidential upon submission. You grant to ISSI and its assigns a non-exclusive, royalty-free, worldwide, perpetual, irrevocable license, with the right to sublicense, to use, copy, transmit, distribute, create derivative works of, commercialize, display and perform such submissions.
4. TERM OF LICENSE
Regardless of the location of the Software, You are responsible for strict compliance with any and all of the terms and conditions of this EULA. This EULA will terminate automatically if You fail to comply with any of the limitations or other requirements described herein, and such termination shall be in addition to and not in lieu of any criminal, civil or other remedies available to ISSI. When this EULA terminates, You must immediately cease using the Software and destroy all copies of the Software and the Documentation. You may terminate this EULA at any point by destroying all copies of the Software and the Documentation. This EULA is effective unless and until You or ISSI terminates the EULA earlier, in accordance with the terms set forth herein.
5. OTHER RESTRICTIONS.
You may only install and use the Software on hardware which is (a) under Your exclusive control and (b) in the case of hardware performing any server functions, located at premises where You normally conduct day-to-day business operations. Notwithstanding the foregoing, if You decide to host the software at a hosting provider the server must be a dedicated server for Your exclusive use
You may not transfer any or all of the rights granted to You under this EULA. You may not transfer the Software unless permitted to in writing by ISSI. This is to allow for your company being bought by another company or a change of name of your existing company. You may not sell or transfer your license it is specific to your company.
(ii) REVERSE ENGINEERING
You may not rename files of, modify, translate, localize, decompile, disassemble, decrypt, reverse engineer, attempt to derive source code from, remove any proprietary notices from, or create derivative works based upon the Software, in whole or in part. You may not duplicate or copy any portion of the Software or Documentation, unless otherwise set forth herein. You may not remove any proprietary notices or labels on the Software, including, but not limited to, the ISSI product names wherever they may appear. All rights not expressly set forth hereunder are reserved by ISSI. ISSI reserves the right to periodically conduct audits upon advance written notice to verify compliance with the terms of this EULA.
(iii) SEPARATION OF COMPONENTS
The Software is licensed as a single product. Its component parts may not be separated for use on more than one computer, or accessed in any way other than through the provided user interface.
Without prejudice to any other rights, ISSI may terminate this agreement if You fail to comply with the terms and conditions of this agreement. In such event You must destroy all copies of the Software and all of its component parts.
This EULA does not grant you any rights in connection with any trademarks or service marks of ISSI, or its suppliers.
You may not rent, lease, sublicense, loan, sell, distribute, market or commercialize any portion of the Software or its components.
(vii) FACILITY MANAGEMENT
You may not permit any parent, affiliate, subsidiary or any other third parties to benefit from the use or functionality of the Software, either directly or via a facility management, timesharing, service bureau or any other arrangement; provided, however, that You may use the Software, as provided herein, to process the data of an affiliate or subsidiary of which You own more than fifty percent (50%) provided that the data is stored on one database server. You may not use the Software as part of a facility management, timesharing, or service bureau arrangement.
6. ENHANCEMENTS, UPGRADES AND UPDATES.
From time to time, at its sole discretion, ISSI may provide enhancements, updates, or new versions of the Software under a software maintenance contract. This Agreement shall apply to such enhancements. Such enhancements or new versions replace the existing Software. Unless otherwise agreed in written contract form, the Customer does not reserve the right to remain on older versions of the software. Any costs related to upgrading local computers and/or custom plugins or website features will be at the expense of the Customer unless otherwise agreed in written contract form.
7. PRODUCT SUPPORT
Product support for the Software is provided only if You have a support contract with ISSI or your supplier.
Distribution by the user of any designs, components or other component parts (EXEs, DLLs, OCXs), executables, source code, or on-line help files distributed by ISSI as part of this product is prohibited. You shall not develop applications that provide an application programmable interface to the Software or the Software as modified. Redistribution by you or your users of ISSI components, or your modified or wrapped version of ISSI components without the appropriate redistribution license from ISSI is prohibited.
9. WARRANTY DISCLAIMER
The Software is being delivered to You "AS IS" and ISSI makes no warranty as to its use or performance. You assume all responsibility for the selection of the Software as appropriate to achieve the results You intend and for the installation of, use of, and results obtained from the Software. ISSI AND ITS RESELLERS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE. ISSI AND ITS RESELLERS MAKES NO WARRANTY THAT THE SOFTWARE WILL BE ERROR-FREE, VIRUS FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS. EXCEPT FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM TO THE EXTENT TO WHICH THE SAME CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY LAW APPLICABLE TO YOU IN YOUR JURISDICTION, ISSI AND ITS RESELLERS MAKE NO WARRANTIES CONDITIONS, REPRESENTATIONS, OR TERMS (EXPRESS OR IMPLIED WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE) AS TO ANY MATTER INCLUDING WITHOUT LIMITATION NONINFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, INTEGRATION, SATISFACTORY QUALITY, OR FITNESS FOR ANY PARTICULAR PURPOSE. You expressly acknowledge that any modification of the Software or the addition of any third party plug-ins to the software, whether or not permitted, is beyond the control of ISSI, and as such, such modification shall void all warranties under this Agreement. The foregoing provisions shall be enforceable to the maximum extent permitted by applicable law.
10. LIMITATION OF LIABILITY.
IN NO EVENT, CIRCUMSTANCES OR UNDER NO LEGAL THEORY SHALL ISSI OR ITS RESELLERS BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY, FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, LOSS OF GOODWILL, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF USE OF OR INABILITY TO USE THE SOFTWARE PRODUCT, EVEN IF ISSI, ITS HOSTING PROVIDER, OR ITS RESELLER HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. IN NO EVENT WILL ISSI BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE PRICE PAID TO ISSI FOR THE LICENSE OF THE SOFTWARE.
11. BASIS OF BARGAIN
The Warranty Disclaimer and Limitation of Liability set forth above are fundamental elements of the basis of the agreement between You and ISSI. ISSI would not be able to provide the Software on an economic basis without such limitations.
You acknowledge that any data entry, conversion or storage is subject to the likelihood of human and machine errors, malicious manipulation, omissions, delays, and losses, including, but not limited to, inadvertent loss of data or damage to media that may result in loss or damage to You and/or Your property, and/or Your detrimental reliance on maliciously manipulated data. ISSI shall not be liable for any such errors, omissions, delays, or losses. You are responsible for adopting reasonable measures to limit the impact of such problems, including backing up data, adopting procedures to ensure the accuracy of input data, examining and confirming results prior to use, adopting procedures to identify and correct errors and omissions, replacing lost or damaged media, and reconstructing data. You are also responsible for complying with all laws pertaining to the use, storage and disclosure of any data.
You agree to defend, indemnify and hold harmless ISSI and its directors, officers, employees, affiliates, distributors, sublicensees, Solution Providers, Resellers and Agents from and against all claims, defense costs (including reasonable expert and attorney's fees), judgments and other expenses arising out of or on account of any negligent act, omission, or willful misconduct by You or on Your behalf in (i) the installation or use of the Software or (ii) Your compliance or failure to comply with this EULA.
14. AUTHORISED SOLUTION PROVIDERS
Any authorized ISSI Solution Provider, Reseller, Installer, or Consultant is not affiliated with ISSI in any capacity other than as a Solution Provider, Reseller, Installer or Consultant of ISSI's products and has no authority to Bind ISSI or modify any license or warranty. ISSI makes no representations, warranty, endorsement or guarantee with respect to the skills or qualifications of any authorized ISSI Solution Provider, Reseller, Installer or Consultant and you are encouraged to independently investigate the skills and qualifications of any authorized ISSI Solution Provider, Reseller, Installer or Consultant with whom you associate.
15. HIGH RISK ACTIVITIES
The Software is not fault-tolerant and is not designed or intended for use in hazardous environments requiring fail-safe performance, including without limitation, in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, direct life-support machines, or any other application in which the failure of the Software could lead directly to death, personal injury, or severe physical or property damage (collectively, "High Risk Activities"). ISSI expressly disclaims any express or implied warranty of fitness for High Risk Activities.
16. GENERAL PROVISION.
You shall have no right to sublicense any of the rights of this agreement, for any reason. In the event of the breach by you of this Agreement, You shall be liable for all damages to ISSI, and this Agreement shall be terminated. If any provision of this Agreement shall be deemed to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining portions of this Agreement shall not be affected or impaired thereby. In the event of a legal proceeding arising out of this Agreement, the prevailing party shall be awarded all legal costs incurred. This Agreement constitutes the entire agreement between the parties for the supply of the Software and its associated documentation and supersedes all prior arrangements, agreements, representations, and undertakings. This Agreement may not be changed or modified except by a written instrument duly executed by each of the parties hereto.
17. EXPORT RESTRICTIONS.
You may only use the software license in the country You purchased it. You agree that you will not export or re-export the SOFTWARE PRODUCT to any country, person, entity or end user subject to U.S.A. export restrictions. Restricted countries currently include, but are not necessarily limited to Cuba, Iran, Iraq, Libya, North Korea, Sudan, and Syria. You warrant and represent that neither the U.S.A. Bureau of Export Administration nor any other federal agency has suspended, revoked or denied your export privileges.
This agreement shall be governed by and construed in accordance with the laws of the United States and the State of Minnesota, without reference to conflict of laws principles. If any provision of this Agreement is held invalid, the remainder of this Agreement shall continue in full force and effect. You shall be responsible for the payment of all taxes, duties, or levies that may now or hereafter be imposed by any authority upon this Agreement for the supply, use, or maintenance of the Software, and if any of the foregoing taxes, duties, or levies are paid at any time by ISSI, You shall reimburse ISSI in full upon demand.
19. LEGAL FEES.
If any party employs attorneys to enforce any rights arising out of or relating to this EULA, the prevailing party shall be entitled to recover its reasonable attorneys' fees, costs, and other expenses.
You agree that the Software, including, but not limited to, all source and object code components, screen shots and displays, graphical user interfaces, algorithms, formulae, data structures, scripts, application programming interfaces and protocols, and the Documentation (collectively the “Confidential Information”) are trade secrets of ISSI and are owned by ISSI or, where applicable, its third-party licensors. You agree to retain all Confidential Information in strict confidence at least with the same amount of diligence that You exercise in preserving the secrecy of Your most-valuable information, but in no event less than reasonable diligence. You agree to: (i) only disclose Confidential Information to Your employees and agents to the extent required to use the Software under the terms of this EULA and not to disclose or disseminate the Confidential Information to any third party..