End User Agreement
2012-09-27
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END-USER LICENSE AGREEMENT FOR ACCESSDATA SOFTWARE
IMPORTANT—READ CAREFULLY:
This End-User License Agreement (“EULA”) is a legal agreement between End User
(“Licensee”) (either an individual or a single legal or juridical entity) and AccessData
Group, LLC (“AccessData”) for the AccessData software that accompanies this
EULA, which includes associated media and AccessData Internet based services
(“Software”). An amendment or addendum to this EULA may accompany the
Software. LICENSEE AGREES TO BE BOUND BY THE TERMS OF THIS EULA BY
INSTALLING, COPYING, OR USING THE SOFTWARE. IF LICENSEE DOES NOT
AGREE, DOES NOT INSTALL, COPY, OR USE THE SOFTWARE; LICENSEE MAY
RETURN IT TO LICENSEE’S PLACE OF PURCHASE FOR A FULL REFUND, IF
APPLICABLE.
THIS EULA ALLOWS THE LICENSEE TO USE THE SOFTWARE MEDIA ("MEDIA")
AND ACCOMPANYING USER DOCUMENTATION ("DOCUMENTATION")
CONTAINED IN THIS PACKAGE. THIS EULA BETWEEN LICENSEE AND
ACCESSDATA, INCLUDING ITS SUCCESSORS OR ASSIGNS (REFERRED TO
COLLECTIVELY AS "LICENSOR"), SUPERSEDES ANY PRIOR PROPOSAL,
REPRESENTATION, OR UNDERSTANDING BETWEEN THE PARTIES.
LICENSE GRANT. Licensor hereby grants to Licensee, and Licensee accepts, a
non-exclusive, non-sublicensible and non transferable license to use the Media,
including the research and investigation Software contained therein, or downloaded
or received via a network if no Media is provided, in object-code only form and
Documentation, only as authorized in this EULA.
If Licensee has purchased a Single-User License, Licensee may install and use the
Software on up to four (4) machines for processing use only and should be limited to
use by one (1) Licensee. If Licensee has purchased a Multi-User License, Licensee
may install the software on the number of computers Licensee chooses for Licensee
organization’s use and allow use of the Software subject and pursuant to the number
of concurrent user licenses Licensee has purchased. Licensee is prohibited from
sharing the Software with a third party who is not subject to the terms of this EULA. If
this product does not contain license manager technology, then Licensee may install
the Software on the number of computers and allow use of the Software according to
the number of users for which Licensee or Licensee’s organization is licensed.
Licensee may install or use the Software on a distributed or multi-user computer
system, such as a local area or wide area network, or multi-user accessible
computer, subject and pursuant to the number of concurrent user licenses Licensee
has purchased. Except as specifically provided above for use in a network
environment, a license for the Software may not be shared or used concurrently.
Licensee may not permit any device to use the Software or the Software’s user
interface unless the device has a separate license for the Software.
The Software may be used only on computers owned, leased, or otherwise controlled
by Licensee; or, in the event of the inoperability of those systems, on a backup
system selected by Licensee. Licensee agrees that Licensee will not assign,
sublicense, transfer, pledge, lease, rent, or share Licensee’s rights under this EULA.
Any purported assignment of any rights hereunder shall be void. Upon loading the
Software into Licensee’s system, Licensee may retain the media for backup
purposes. In addition, Licensee may make one copy of the Software on a second set
of media solely for the purpose of backup in the event that the original media is
damaged or destroyed. Any such copy of the Software shall be subject to all terms
and conditions of this EULA and shall include Licensor’s copyright and other
proprietary notices. Except as authorized under this paragraph, no copies of the
Software or any portions thereof may be made by Licensee or any person under
Licensee’s authority or control.
Should Licensee download or otherwise receive a digital copy of the Software and/or
documentation, and then be provided with the Software and/or documentation in
tangible media form, Licensee acknowledges that use of the Software and
documentation is still subject to the conditions of this EULA.
CONSOLIDATION OF LICENSES. Consolidation of multiple single-user licenses,
multiple multi-user licenses, or a combination of both under one consolidated multiuser license may be possible under certain circumstances and in Licensor’s sole
discretion. Consolidated licenses are subject to the restrictions on multi-user licenses
contained herein. If the serial number of any single-user or multi-user Software is
covered by or merged into a new consolidated license, then Licensee’s rights to use
that single-user or multi-user Software under this EULA is replaced, terminated, and
superseded by Licensee’s rights to use the consolidated Software. Licensee then no
longer has the right to use any single-user or multi-user Software having a serial
number covered by the consolidated license.
AUTHORIZED USERS. The Software may be used by all employees of Licensee’s
organization at facilities governed by Licensee and within Licensee’s network.
Licensee will use commercially reasonable efforts to restrict network or any other
access to the Software by anyone outside of Licensee’s organization who is not
authorized to use the Software. If Licensee is an educational institution, the Software
may only be used by Licensee’s enrolled students, faculty, teaching assistants and
administrators on Licensee institution’s computers. Temporary employees,
contractors, and consultants of Licensee’s organization who work on-site at
Licensee’s facility may also use the Software so long as such temporary employees,
contractors and consultants or their computers are included in the total number of
licenses purchased by Licensee and used within the Licensee’s network. Any copies
of the Software used by temporary employees, contractors and consultants must be
removed from such individual's computers once they cease working at Licensee’s
facilities.
LICENSE GRANT FOR DOCUMENTATION. The documentation that accompanies
the Software is licensed for internal, non-commercial, reference purposes only. The
documentation shall not be copied or published without prior written approval of
Licensor.
LICENSOR’S RIGHTS. Licensee acknowledges and agrees that the Software
consists of proprietary, published and unpublished property of Licensor, protected
under United States copyright law and trade secret laws, international treaties and
conventions, and other national and international laws of general applicability
respecting intellectual property rights. Licensee further acknowledges and agrees that
all right, title, interest, and other intellectual property rights in and to the Software are
and shall remain with Licensor. This EULA does not convey to Licensee an interest in
or to the Software, but only a limited right of use revocable in accordance with the
terms of this EULA. The Software is licensed, not sold, and the use of the word
“purchase” with respect to licenses granted herein refers to license fees for such use.
This EULA does not grant Licensee any rights to trademarks or service marks of
AccessData. AccessData reserves all rights not expressly granted to Licensee in this
EULA.
LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION, AND
DISASSEMBLY. Licensee may not reverse engineer, decompile, or disassemble the
Software or create any derivative work based on the Software, except and only to the
extent that such activity is expressly permitted by applicable law notwithstanding this
limitation.
NO RENTAL/COMMERCIAL HOSTING. Licensee may not rent, lease, lend, or
provide commercial hosting services with the Software or use the Software in a
service bureau capacity.
PRE-PRODUCTION SOFTWARE. As an accommodation to Licensee, Licensor may
supply Licensee with or allow access to pre-production releases of the Software
(which may be labeled "Alpha" or "Beta" or otherwise identified as pre-production
versions). Pre-production releases of the Software are provided “AS-IS”; are not
covered by any warranty, express or implied; and are not intended for production use.
Pre-production releases of the Software are provided without additional charge for
demonstration and trial use purposes only and may expire automatically at the end of
a pre-determined trial period or upon notice from Licensor.
LICENSE FEES. The license fees paid by Licensee are paid in consideration of the
licenses granted under this EULA.
SOFTWARE INSTALLATION. It shall be Licensee’s sole responsibility to install and
make operational the Software on Licensee’s system. In the event Licensee needs
installation assistance, such services may be available from Licensor at an additional
cost to Licensee.
TERM. This EULA is effective upon download, installation or use of the Software by
Licensee, and shall continue until terminated as provided herein or by operation of
law. Licensee may terminate this EULA at any time by returning the entire Software,
including the Media, Software and Documentation, and other paraphernalia and all
copies thereof and extracts therefrom, to Licensor and by erasing all copies of the
software that may be located on any systems owned or controlled by Licensee or
upon which Licensee know a copy of the Software has been placed. Licensor may
terminate this EULA upon the breach by Licensee of any term hereof. Upon such
termination by Licensor, Licensee agrees to immediately return to Licensor the entire
Software, including the Media, Software and Documentation, and all copies thereof
and extracts therefrom, and to erase all copies of the Software that may be located
on any systems owned or controlled by Licensee or upon which Licensee know a
copy of the Software has been placed.
PROPER USE OF SOFTWARE. The Licensee acknowledges that the continued
integrity of the Software and Licensor’s performance of its obligations described in
this Agreement are dependent upon the proper use and maintenance of the Software
by Licensee. Proper use and maintenance means that Licensee will (i) install all
Upgrades and releases delivered to Customer hereunder, (ii) use the Software in
accordance with the documentation supplied by Licensor and the terms and
conditions of this Agreement and (iii) follow Licensor’s instructions for installing new
Releases and Upgrades and for correcting and circumventing software bugs.
EXPORT RESTRICTIONS. Licensee acknowledges that the Software is subject to
the export control laws and regulations of the United States of American and other
countries. Licensee agrees to comply with all applicable national and international
laws that apply to the Software, including the U.S. Export Administration Regulations,
as well as end-user, end-use, and destination restrictions issued by U.S. and other
governments.
OPEN SOURCE AND THIRD PARTY SOURCE CODE. Licensor’s Software may
incorporate, use, link to, call, or depend upon, certain software or other intellectual
property that may be considered "open source," "public use" or is otherwise subject
to an Open Source or Copyleft license (including, for example, the GNU General
Public License). Licensor’s Software may also contain third party software or other
intellectual property. Licensor represents and warrants that it has all necessary legal
right to use such open source or third party software or other intellectual property for
the purposes of this Agreement.
LIMITED WARRANTY. Licensor warrants, for Licensee’s benefit alone, that the
Media in which the Software is embedded shall, for a period of sixty (60) days from
the date of Licensee’s purchase of the Software (referred to as the "Warranty
Period"), be free from defects in material and workmanship. Licensor further
warrants, for Licensee’s benefit alone, that during the Warranty Period the software
shall operate substantially in accordance with the Documentation. If, during the
Warranty Period, a defect in the Software media or Software appears, Licensee may
return the Software to Licensor personally or by mail to:
AccessData, 384 South 400 West, Suite 200, Lindon, Utah 84042, with written
instructions for replacement.
EXCLUSIVE REMEDY.
LICENSEE AGREES THAT THE FOREGOING
CONSTITUTES LICENSEE’S SOLE AND EXCLUSIVE REMEDY FOR BREACH BY
LICENSOR OF ANY WARRANTIES MADE UNDER THIS EULA. EXCEPT FOR THE
WARRANTIES SET FORTH ABOVE, THE MEDIA, SOFTWARE, AND
DOCUMENTATION ARE LICENSED "AS IS," AND LICENSOR DISCLAIMS ANY
AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
LIMITATION OF LIABILITY. LICENSOR’S CUMULATIVE LIABILITY TO LICENSEE
OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM ANY
CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS
EULA OR THE USE OF THE SOFTWARE SHALL BE LIMITED TO REPLACEMENT
OF THE SOFTWARE AND, IN ANY EVENT, SHALL NOT EXCEED THE LICENSE
FEE PAID TO LICENSOR FOR THE USE OF THE SOFTWARE PRORATED ON A
MONTHLY BASIS OVER A PERIOD OF ONE (1) YEAR FROM THE EFFECTIVE
DATE OF THE EULA. IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY
INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY
DAMAGES OR LOST PROFITS OR ANY SIMILAR CLAIMS, EVEN IF LICENSOR
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
INFRINGEMENT INDEMNITY. Licensor shall indemnify and defend Licensee from
and against third party claims against Licensee that the Software infringes or
misappropriates any patent, trademark, trade secret, copyright or other proprietary
right of such third party, provided that Licensee give Licensor: (i) written notice of any
such claim, action or demand within ten (10) business days of Licensee’s knowledge
thereof; (ii) control of the defense and settlement thereof; and (iii) reasonable
assistance in such defense or settlement (for which Licensor will pay reasonable outof-pocket expenses). If any Software becomes or, in Licensor’s opinion, is likely to
become the subject of any injunction preventing use as contemplated herein,
Licensor may, at its option, (a) procure for Licensee the right to continue using such
Software, (b) replace or modify such Software so that it becomes non-infringing
without substantially compromising its functionality, or, if (a) and (b) are not
reasonably available to Licensor, then (c) terminate Licensee’s license to the
allegedly infringing Software and refund a portion of the License Fees prorated on a
monthly basis over a period of three (3) years from the effective date of the EULA.
The foregoing obligation of Licensor does not apply with respect to (1) any products
not supplied by Licensor, (2) Software which is modified after delivery by Licensor, if
the alleged infringement relates to such modification, (3) Software combined with
other products, processes or materials where the alleged infringement relates to such
combination, (4) Software where Licensee continues the allegedly infringing activity
after being notified thereof or after being informed of modifications that would have
avoided the alleged infringement, or (5) any information or data stored by Licensee,
and in each case, Licensee shall defend and indemnify Licensor from and against
such claims subject to the same conditions noted above. THE FOREGOING
STATES THE ENTIRE LIABILITY OF LICENSOR WITH RESPECT TO
INFRINGEMENT OF PATENTS, COPYRIGHTS, TRADE SECRETS OR OTHER
INTELLECTUAL PROPERTY RIGHTS BY THE SOFTWARE OR ANY PART
THEREOF OR BY THEIR OPERATION.
CONFIDENTIALITY. By virtue of this EULA, the parties may have access to
information that is confidential to one another ("Confidential Information").
Confidential Information includes, without limitation, the Software, Documentation, the
terms and pricing under this Agreement and all information clearly identified as
confidential or reasonably deemed to be confidential based on the circumstances and
industry practices.
A party's Confidential Information shall not include information that (a) is or becomes
a part of the public domain through no act or omission of the other party; (b) was in
the other party's lawful possession prior to the disclosure and had not been obtained
by the other party either directly or indirectly from the disclosing party; (c) is lawfully
disclosed to the other party by a third party without restriction on disclosure; or (d) is
independently developed by the other party.
The parties agree to hold each other's Confidential Information in confidence during
the term of this Agreement and thereafter. The parties agree, unless required by law,
not to make each other's Confidential Information available in any form to any third
party for any purpose other than the implementation of this Agreement. Each party
agrees to take all reasonable steps to ensure that Confidential Information is not
disclosed or distributed by its employees or agents in violation of the terms of this
Agreement. Each party agrees that remedies at law may not be adequate to protect
the rights of the other party under this Section and that a non-breaching party may
seek injunctive or other equitable relief to enforce such rights.
INDEMNIFICATION. Licensee accepts full legal responsibility for all research and
investigations performed through Licensee’s use of the Software. Licensee agrees to
hold harmless and indemnify Licensor for any and all demands, claims, legal action
and damages, including all attorney’s fees and costs, against Licensor, which arise
out of Licensee’s use of the Software. In any legal action regarding the
indemnification contained the EULA, the prevailing party shall be entitled to recover
from the non-prevailing party all of its attorney’s fees and costs.
GOVERNING LAW. This EULA shall be construed and governed in accordance with
the laws of the State of New York without regard to provisions relating to conflicts of
laws. Any dispute arising out of or with respect to this EULA between Licensee and
Licensor shall be solely adjudicated by the competent Federal or State court situated
in Salt Lake City, Utah. Licensee and Licensor consent to the venue and jurisdiction
of such court for purposes of any such dispute. Each Party hereby waives any right
to a jury trial in any dispute between them. The Parties agree that the United Nations
convention on the international sale of goods shall not apply to this EULA. Licensee
agrees to abide by the terms of any international, national, or local laws and
regulations that apply to Licensee’s use of the Software including, without limitation,
laws respecting data privacy and individually identifiable information.
ELECTRONIC NOTICES. Licensee consents that Licensor may provide Licensee
with information and notices regarding the Software and Licensor via the email
address Licensee designate when installing the Software or thereafter. Licensor may
provide notices to Licensee via (i) email if Licensee have provided Licensor with a
valid email address, or (ii) by posting the notice on the Licensor website or the
Software download site which Licensor owns and operates. Licensee may withdraw
Licenseer consent for electronic notices.
ATTORNEY’S FEES. If either party brings legal action to enforce its rights under this
Agreement, by arbitration or otherwise, the prevailing party in such action shall be
entitled to receive all costs and expenses, including but not limited to fees of
attorneys, accountants, and other experts, incurred by the prevailing party in
investigating and prosecuting (or defending) such action, and in any appeal of any
judgment thereon.
SEVERABILITY. Should any court of competent jurisdiction declare any term of this
EULA void or unenforceable, such declaration shall have no effect on the remaining
terms hereof.
NO WAIVER. The failure of either Licensee or Licensor to enforce any rights granted
hereunder or to take action against the other party in the event of any breach
hereunder shall not be deemed a waiver by that party as to subsequent enforcement
of rights or subsequent actions in the event of future breach.
ENTIRE AGREEMENT. This EULA contains the entire understanding of the parties
relating to the subject matter contained herein and supersedes all prior agreements
and understandings, written or oral, relating to the subject matter hereof. This EULA
may not be modified or amended except by written agreement signed by both parties.
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