ACCESSDATA GROUP, INC. (“ACCESSDATA”) IS WILLING TO LICENSE THE LICENSED SOFTWARE TO YOU AS THE INDIVIDUAL, THE COMPANY, OR THE LEGAL ENTITY THAT WILL BE UTILIZING THE LICENSED SOFTWARE (REFERENCED BELOW AS “YOU” OR “YOUR”) ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THIS LICENSE AGREEMENT (“LICENSE AGREEMENT”). READ THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT CAREFULLY BEFORE USING THE LICENSED SOFTWARE. THIS IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN YOU AND ACCESSDATA. BY OPENING THE LICENSED SOFTWARE PACKAGE, BREAKING THE LICENSED SOFTWARE SEAL, CLICKING THE “I AGREE” OR “YES” BUTTON, OR OTHERWISE INDICATING ASSENT ELECTRONICALLY, OR LOADING THE LICENSED SOFTWARE, DOWNLOADING THE LICENSED SOFTWARE OR OTHERWISE USING THE LICENSED SOFTWARE, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, CLICK THE “I DO NOT AGREE” OR “NO” BUTTON OR OTHERWISE INDICATE REFUSAL AND MAKE NO USE OF THE LICENSED SOFTWARE. THE TERMS AND CONDITIONS OF THIS LICENSE ARE SPECIFICALLY INCORPORATED BY THIS REFERENCE INTO YOUR QUOTE OR PURCHASE ORDER UNLESS SPECIFICALLY AMENDED BY A MUTUALLY EXECUTED Master Software License Agreement or other Writing signed by YOU AND ACCESSDATA. UNLESS OTHERWISE DEFINED HEREIN, CAPITALIZED TERMS WILL HAVE THE MEANING GIVEN IN THE “DEFINITIONS” SECTION OF THIS LICENSE AGREEMENT AND SUCH CAPITALIZED TERMS MAY BE USED IN THE SINGULAR OR IN THE PLURAL, AS THE CONTEXT REQUIRES.
“Documentation” means the user documentation AccessData provides with the Licensed Software.
“License Instrument” means one or more of the following applicable documents which further defines Your license rights to the Licensed Software: an AccessData Master Software License Agreement or a similar license document issued by AccessData, or a written agreement between You and AccessData, that accompanies, precedes or follows this License Agreement. In the absence of a subsequent written agreement, these Terms and Conditions shall control all sales or licenses of AccessData products by You.
“Licensed Software” means the AccessData software product, in object code form, accompanying this License Agreement as identified in Your Quote or Purchase Order, including any Documentation included in, or provided for use with, such software or that accompanies this License Agreement.
“Support Certificate” means the certificate sent by AccessData, if any, confirming Your purchase of the applicable AccessData maintenance/support for the Licensed Software.
“Upgrade” means any version of the Licensed Software that has been released to the public and which replaces the prior version of the Licensed Software on AccessData’s price list pursuant to AccessData’s then-current upgrade policies.
LICENSE GRANT. Subject to Your compliance with the terms and conditions of this License Agreement, AccessData grants to You the following rights: (i) a non-exclusive, non-transferable (except as stated otherwise in Section 16.1) license to use the Licensed Software solely in support of Your internal business operations in the quantities depicted in Your Quote or Purchase Order and as further described in this License Agreement and the applicable License Instrument (if any); and (ii) the right to make a single uninstalled copy of the Licensed Software for archival purposes which You may use and install for disaster-recovery purposes (i.e. where the primary installation of the Licensed Software becomes unavailable for use).
TERM. The term of the Licensed Software license granted under this License Agreement shall be as indicated in Your Quote or Purchase Order, the Effective Date of this License Agreement shall be the date You open the License Software Packaging, break the License Software Seal, clicking “I Agree” or the “Yes” buttons if downloaded from our website, or, the date You load the Licensed Software, Download the Licensed Software or use the Licensed Software. License Agreement shall renew automatically for consecutive annual terms unless terminated by the Parties consistent herewith. In each instance where this Agreement Auto Renews for an additional Term, Customer agrees that each renewal will be subject to an Licensee Fee increase of three percent (3%). If You have obtained the Licensed Software on a non-perpetual basis, such as, under a subscription or term-based license for the period of time which is not subject to our auto renewal policy as indicated on Your Purchase Order or Quote, Your rights to use such Licensed Software shall end on the applicable end date as indicated in Your Quote or Purchase Order and You shall cease use of the Licensed Software as of such applicable end date.
LICENSE RESTRICTIONS. You may not, without AccessData’s prior written consent, conduct, cause or permit the: (i) use, copying, modification, rental, lease, sublease, sublicense, or transfer of the Licensed Software except as expressly provided in this License Agreement; (ii) creation of any derivative works based on the Licensed Software; (iii) reverse engineering, disassembly, or decompiling of the Licensed Software; (iv) use of the Licensed Software in connection with service bureau, facility management, timeshare, service provider or like activity whereby You operate or use the Licensed Software for the benefit of a third party; (v) use of the Licensed Software by any party other than You; (vi) use of a later version of the Licensed Software other than the version that accompanies this License Agreement unless You have separately acquired the right to use such later version through a License Instrument or Support Certificate; nor (vii) use of the Licensed Software above the quantity and Use Level that have been licensed to You under this License Agreement or the applicable License Instrument.
Acceptance of Licensed Software. After Your Purchase Order or Quote is approved, AccessData will deliver the Software to Customer, permit Customer to download the Licensed Software from an FTP site or permit increased Node or User use. Customer will be responsible for installation of the Software, unless your Licensing Instrument, Quote or Purchase Order asserts otherwise. Customer’s acceptance of the Licensed Software occurs upon delivery, Customer’s initial download or use of the Licensed Software (“Acceptance”). If the Licensed Software is not acceptable to Customer, Customer will notify AccessData within fifteen (15) days of Acceptance, and following receipt of notice from Customer, AccessData will have a reasonable time (not to exceed an additional fifteen (15) days) to remedy the deficiencies identified by Customer. Thereafter, if the deficiencies are not remedied to Customer’s reasonable satisfaction, Customer may elect to extend the time for AccessData to remedy the deficiency or terminate the Agreement or the affected order, return the Licensed Software (if applicable), obtain a full refund of any amounts paid, and have no obligation to pay or any further obligations under the Agreement or the affected order. For purposes of these Terms and Conditions, Customer agrees that making the Licensed Software available for downloading is delivery.
PAYMENT AND TAXES. All fees and expenses are quoted in the applicable Quote or Order and invoiced in U.S. Dollar (USD) currency. All undisputed, invoiced amounts are due and payable by Customer thirty (30) days after the date of Customer’s receipt of the invoice. Fees and other charges described in the applicable Quote or Purchase Order do not include federal, state or local sales, use, service, value-added or similar taxes (“Tax(es)”) now or hereafter levied, all of which shall be for Your account, and separately itemized on each invoice, provided that You shall not be responsible for any taxes based on AccessData’s net income, property or any excise taxes). With respect to state or local sales tax, any applicable direct pay permits or valid tax-exempt certificates must be provided to AccessData prior to the Effective Date of this License Agreement. If AccessData is required to pay Taxes, You shall reimburse AccessData for all such amounts due and payable.
OWNERSHIP/TITLE. The Licensed Software is the proprietary property of AccessData or its licensors and is protected by copyright law. AccessData and its licensors retain any and all rights, title and interest in and to the Licensed Software, including in all copies, improvements, enhancements, modifications and derivative works of the Licensed Software. Your rights to use the Licensed Software shall be limited to those expressly granted in this License Agreement. All rights not expressly granted to You are retained by AccessData and/or its licensors.
CONTENT UPDATES. If You purchase a AccessData maintenance/support offering consisting of or including Content Updates, as indicated on Your Quote or Purchase Order, You are granted the right to use, as part of the Licensed Software, such Content Updates as and when they are made generally available to AccessData’s end user customers who have purchased such maintenance/support offerings and for such period of time as indicated on the face of the applicable release documentation. This License Agreement does not otherwise permit You to obtain and use Content Updates.
UPGRADES/CROSS-GRADES. AccessData reserves the right to require that any upgrades (if any) of the Licensed Software may only be obtained in a quantity equal to the number indicated on the applicable License Instrument. An upgrade to an existing license shall not be deemed to increase the number of licenses which You are authorized to use. Additionally, if You upgrade a Licensed Software license, or purchase a Licensed Software license listed on the applicable License Instrument to cross-grade an existing license (i.e. to increase its functionality, and/or transfer it to a new operating system, hardware tier or licensing meter), then AccessData issues the applicable Licensed Instrument based on the understanding that You agree to cease using the original license. Any such license upgrade or cross-grade is provided under AccessData's policies in effect at the time of order. This License Agreement does not separately license You for additional licenses beyond those which You have purchased, and which have been authorized by AccessData as indicated on the applicable License Instrument.
PERFORMANCE WARRANTY. AccessData warrants that the Licensed Software, as delivered by AccessData and when used in accordance with the Documentation, will substantially conform to the Documentation for a period of ninety (90) days from delivery. If the Licensed Software does not comply with this warranty and such non-compliance is reported by You to AccessData within the ninety (90) day warranty period, AccessData will do one of the following, selected at AccessData’s reasonable discretion: either (i) repair the Licensed Software, (ii) replace the Licensed Software with software of substantially the same functionality, or (iii) terminate this License Agreement and refund the relevant license fees paid for such non-compliant Licensed Software. The above warranty specifically excludes defects resulting from accident, abuse, unauthorized repair, modifications or enhancements, or misapplication. THE FOREGOING IS YOUR SOLE AND EXCLUSIVE REMEDY FOR ACCESSDATA’S BREACH OF THIS WARRANTY.
WARRANTY DISCLAIMERS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE WARRANTIES SET FORTH HEREIN ARE YOUR EXCLUSIVE WARRANTIES AND ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. ACCESSDATA MAKES NO WARRANTIES OR REPRESENTATIONS THAT THE LICENSED SOFTWARE, CONTENT UPDATES OR UPGRADES WILL MEET YOUR REQUIREMENTS OR THAT OPERATION OR USE OF THE LICENSED SOFTWARE, CONTENT UPDATES, AND UPGRADES WILL BE UNINTERRUPTED OR ERROR-FREE. YOU MAY HAVE OTHER WARRANTY RIGHTS, WHICH MAY VARY FROM STATE TO STATE AND COUNTRY TO COUNTRY.
LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL ACCESSDATA OR ITS LICENSORS, RESELLERS, SUPPLIERS OR AGENTS BE LIABLE TO YOU FOR (i) ANY COSTS OF PROCUREMENT OF SUBSTITUTE OR REPLACEMENT GOODS AND SERVICES, LOSS OF PROFITS, LOSS OF USE, LOSS OF OR CORRUPTION TO DATA, BUSINESS INTERRUPTION, LOSS OF PRODUCTION, LOSS OF REVENUES, LOSS OF CONTRACTS, LOSS OF GOODWILL, OR ANTICIPATED SAVINGS OR WASTED MANAGEMENT AND STAFF TIME; OR (ii) ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES WHETHER ARISING DIRECTLY OR INDIRECTLY OUT OF THIS LICENSE AGREEMENT, EVEN IF ACCESSDATA OR ITS LICENSORS, RESELLERS, SUPPLIERS OR AGENTS HAS BEEN ADVISED SUCH DAMAGES MIGHT OCCUR. IN NO CASE SHALL ACCESSDATA’S LIABILITY EXCEED THE TOTAL AMOUNT OF THE FEES YOU PAID FOR THE LICENSED SOFTWARE IN THE PRECEDING ONE (1) YEAR FROM THE DATE OF YOUR CLAIM.
MAINTENANCE/SUPPORT. AccessData has no obligation under this License Agreement to provide maintenance/support for the Licensed Software unless it is specified in your Quote, Purchase Order or Licensing Instrument. Any maintenance/support purchased for the Licensed Software is subject to AccessData’s then-current maintenance/support policies.
SOFTWARE EVALUATION. If the Licensed Software is provided to You for evaluation purposes and You have an evaluation agreement with AccessData for the Licensed Software, Your rights to evaluate the Licensed Software will be pursuant to the terms of such evaluation agreement. If You do not have an evaluation agreement with AccessData for the Licensed Software and if You are provided the Licensed Software for evaluation purposes, the following terms and conditions shall apply. AccessData grants to You a nonexclusive, temporary, royalty-free, non-assignable license to use the Licensed Software solely for internal non-production evaluation. Such evaluation license shall terminate (i) on the end date of the pre-determined evaluation period, if an evaluation period is pre-determined in the Licensed Software or (ii) sixty (60) days from the date of Your initial installation of the Licensed Software, if no such evaluation period is pre-determined in the Licensed Software (“Evaluation Period”). The Licensed Software may not be transferred and is provided “AS IS” without warranty of any kind. You are solely responsible to take appropriate measures to back up Your system and take other measures to prevent any loss of files or data. The Licensed Software may contain an automatic disabling mechanism that prevents its use after a certain period of time. Upon expiration of the Licensed Software Evaluation Period, You will cease use of the Licensed Software and destroy all copies of the Licensed Software. All other terms and conditions of this License Agreement shall otherwise apply to Your evaluation of the Licensed Software as permitted herein.
U.S. GOVERNMENT RESTRICTED RIGHTS. The Licensed Software is deemed to be commercial computer software as defined in FAR 12.212 and subject to restricted rights as defined in FAR Section 52.227-19 "Commercial Computer Licensed Software - Restricted Rights" and DFARS 227.7202, “Rights in Commercial Computer Licensed Software or Commercial Computer Licensed Software Documentation”, as applicable, and any successor regulations. Any use, modification, reproduction release, performance, display or disclosure of the Licensed Software by the U.S. Government shall be solely in accordance with the terms of this License Agreement.
EXPORT REGULATION. You acknowledge that the Licensed Software and related technical data and services (collectively "Controlled Technology") are subject to the import and export laws of the United States, specifically the U.S. Export Administration Regulations (EAR), and the laws of any country where Controlled Technology is imported or re-exported. You agree to comply with all relevant laws and will not export any Controlled Technology in contravention to U.S. law nor to any prohibited country, entity, or person for which an export license or other governmental approval is required. All AccessData products, including the Controlled Technology are prohibited for export or re-export to Cuba, North Korea, Iran, Syria and Sudan and to any country subject to relevant trade sanctions. You hereby agree that You will not export or sell any Controlled Technology for use in connection with chemical, biological, or nuclear weapons, or missiles, drones or space launch vehicles capable of delivering such weapons.
TERMINATION. For Convenience. Either Party may terminate this License Agreement (and all Orders) or any Order in part or in its entirety at any time for convenience upon thirty (30) days’ prior written notice to the other Party. In the event Customer terminates for convenience, no refund of Fees paid or payable under Your Quote, Order or this License Agreement shall be due Customer from AccessData. For Cause. Either party may terminate this License Agreement or Order following written notice to the other party where the other Party has failed to cure a material breach, after having been given written notice of the material breach and thirty (30) days following receipt of said written notice to cure the material breach. In the case of a Termination for Cause, AccessData shall refund to Customer all pre-paid unused fees the Licensed Product or services up to the date of the uncured material breach. Upon termination, You shall immediately stop using and destroy all copies of the Licensed Software.
SURVIVAL. The following provisions of this License Agreement survive termination of this License Agreement: Definitions, License Restrictions and any other restrictions on use of intellectual property, Ownership/Title, Warranty Disclaimers, Limitation of Liability, U.S. Government Restricted Rights, Export Regulation, Survival, and General.
ASSIGNMENT. You may not assign the rights granted hereunder or this License Agreement, in whole or in part and whether by operation of contract, law or otherwise, without AccessData’s prior express written consent.
COMPLIANCE WITH APPLICABLE LAW. You are solely responsible for your compliance with, and You agree to comply with, all applicable laws, rules, and regulations in connection with Your use of the Licensed Software.
AUDIT. An auditor, selected by AccessData and reasonably acceptable to You, may, upon reasonable notice and during normal business hours, but not more often than once each year, inspect Your records and deployment in order to confirm that Your use of the Licensed Software complies with this License Agreement and the applicable License Instrument. AccessData shall bear the costs of any such audit, except where the audit demonstrates that the value of Your non-compliant usage exceeds five percent (5%) of the MSRP value of Your compliant deployments. In such case, in addition to purchasing appropriate licenses for any over-deployed Licensed Software, You shall reimburse AccessData for the auditor’s reasonable actual fees for such audit.
GOVERNING LAW; SEVERABILITY; WAIVER. If You are located in North America or Latin America, this License Agreement will be governed by the laws of the State of Utah, United States of America. Otherwise, this License Agreement will be governed by the laws of England. Such governing laws are exclusive of any provisions of the United Nations Convention on Contracts for Sale of Goods, including any amendments thereto, and without regard to principles of conflicts of law. If any provision of this License Agreement is found partly or wholly illegal or unenforceable, such provision shall be enforced to the maximum extent permissible, and remaining provisions of this License Agreement shall remain in full force and effect. A waiver of any breach or default under this License Agreement shall not constitute a waiver of any other subsequent breach or default.
THIRD PARTY PROGRAMS. This Licensed Software may contain third party software programs (“Third Party Programs”) that are available under open source or free software licenses. This License Agreement does not alter any rights or obligations You may have under those open source or free software licenses. Notwithstanding anything to the contrary contained in such licenses, the disclaimer of warranties and the limitation of liability provisions in this License Agreement shall apply to such Third-Party Programs.
ENTIRE AGREEMENT. This License Agreement and any related License Instrument are the complete and exclusive agreement between You and AccessData relating to the Licensed Software and supersede any previous or contemporaneous oral or written communications, proposals, and representations with respect to its subject matter. This License Agreement prevails over any conflicting or additional terms of any purchase order, ordering document, acknowledgement or confirmation or other document issued by You, even if signed and returned. This License Agreement may only be modified by a License Instrument that accompanies or follows this License Agreement.