End User License Agreement
This End User License Agreement was last updated on March 30, 2017.
IMPORTANT: PLEASE READ BEFORE INSTALLATION OR USE OF THE OVALEDGE , INC. (“LICENSOR”) SOFTWARE PRODUCTS (AND RELATED DOCUMENTATION) (COLLECTIVELY, “PRODUCT(S)”). BY INSTALLING OR IN ANY WAY USING THE PRODUCT, THE ENTITY OR COMPANY THAT YOU REPRESENT (“LICENSEE”) IS UNCONDITIONALLY CONSENTING TO BE BOUND BY AND IS BECOMING A PARTY TO THIS END USER LICENSE AGREEMENT (“AGREEMENT”) WITH LICENSOR. IF LICENSEE DOES NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN INSTALLATION OR USE OF THIS PRODUCT IS STRICTLY PROHIBITED. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
- LICENSE GRANT. Subject to the terms of this Agreement, Licensor hereby grants Licensee a limited, personal, non-sublicensable, non-transferable, nonexclusive license to use the version of the Product Licensee has been provided only for Licensee’s internal business purposes and only in accordance with the related documentation during the applicable license term designated by Licensor for such Product (or, if no term is designated, such license shall continue until terminated in accordance with Section 7). If any Product is designated as a “sandbox” “demonstration” or “evaluation” version or the like (“Evaluation Products”), such Products are provided “as is” (without warranty of any kind), and Licensee’s license is limited to non-production, internal evaluation use and will automatically expire (and the Product will cease functioning) at the end of the applicable evaluation term (as may be designated by Licensor from time to time). While certain Product features are available without payment of fees, other features and functionality are available only in connection with the purchase of bundled subscription offerings (“Paid Features”). The license granted herein only applies to Product features and functionality for which Licensee has procured a valid license, and (as applicable) paid the corresponding fees.
- LICENSE RESTRICTIONS. Except as expressly and unambiguously permitted by this Agreement, Licensee shall not, nor permit anyone else to, directly or indirectly: (i) copy, modify, or distribute the Product; (ii) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or structure, sequence and organization of the Product (except where the foregoing is expressly prohibited by applicable local law, and then only to the extent so prohibited); (iii) rent, lease, or use the Product for timesharing or service bureau purposes, or otherwise use the Product on behalf of any third party; (iv) use the Product for performing comparisons or other “benchmarking” activities, either alone or in connection with any software (and Licensee will not publish or disclose any such performance information or comparisons); or (v) use any Product Paid Features unless Licensee has timely paid all applicable fees, or otherwise use any Product for any purpose not expressly and unambiguously authorized herein(including, without limitation, for any purpose competitive with Licensor). However, the foregoing is not intended to limit the terms of any applicable open source license that may apply to any portion or component of the Product (as described in the Product code or relevant documentation). Licensee shall maintain and not remove or obscure any proprietary notices on the Product. As between the parties, title, ownership rights, and intellectual property rights in and to the Product, and any copies or portions thereof, shall remain in Licensor and its suppliers or licensors. Licensee understands that Licensor may modify or discontinue offering the Product at any time. The Product is protected by the copyright laws of the United States and international copyright treaties, and this Agreement does not grant Licensee any rights not expressly granted herein. Further, Licensee acknowledges that the Product, its features and functionality, and all related information and documentation are confidential to Licensor and its suppliers (“Confidential Information”), and Licensee agrees at all times to protect and preserve in strict confidence all such Confidential Information and use it only as expressly permitted herein. Licensee agrees not to permit or authorize access to, or disclosure of any such Confidential Information to any person other than employees of Licensee who are bound in writing to terms no less restrictive than this Agreement and have a need to access the Product and documentation for the benefit of the Licensee.
- SUPPORT; REPORTING. This Agreement does not entitle Licensee to any support, updates, upgrades, patches, enhancements, new versions, new functionality or fixes for the Product (collectively, “Support”) unless Licensee enters into a separate written agreement for Support with Licensor and pays any fees associated with such Support as designated by Licensor. Certain paid Support packages may also include rights to access Paid Features as detailed in the relevant Support agreement. Any such Support for the Product that may be made available by Licensor shall become part of the Product and subject to this Agreement. Licensee acknowledges that the Product may contain automated reporting routines that will automatically identify and analyze certain aspects of use and performance of Product and/or the systems on which they are installed (including problems and issues that arise in connection therewith), and provide information back to Licensor. Licensor will be free to use for development, diagnostic, compliance monitoring, and corrective purposes any data and information it so collects.
- FEES. Licensee shall pay Licensor (or its applicable authorized reseller, OEM or channel partner) the fees for the Product, if any, designated by Licensor (or its applicable partner). All fees shall be non-refundable and payable in US dollars on the date they come due. Licensee shall also pay all sales, use, value-added and other taxes, tariffs and duties of any type assessed against Licensor except for taxes on Licensor’s income. During the term hereof and for one (1) year thereafter, Licensor shall have the right to reasonably inspect and audit Licensee’s facilities, systems and relevant books and records to confirm Licensee’s compliance with the terms of this Agreement.
- WARRANTY DISCLAIMER. Except for Evaluation Products (which are provided “as is”),Licensor warrants that the Product will perform substantially in conformance with the user documentation for 30 days from delivery. If the Product fails to substantially conform to the user documentation during such warranty period, subject to delivery of prompt written notice by Licensee to Licensor during the warranty period, Licensor will use reasonable efforts to provide Licensee with a work-around or correction for the nonconformity within a reasonable period of time. Licensor does not warrant that the operation of the Product will be uninterrupted, entirely secure or error free. This warranty does not apply to defects or nonconformities in the Product caused by: (a) Licensee’s failure to follow Licensor’s installation, operation or maintenance instructions or procedures; (b) Licensee’s mishandling, misuse, negligence, or improper installation, de-installation, storage, servicing or operation of the Product; (c) modifications or repairs not made by Licensor or a Licensor-certified individual; and (d) power failures, surges, earthquakes, fires, floods, accidents, actions of third parties or other events outside Licensor’s reasonable control. THIS WARRANTY (1) IS LICENSEE’S SOLE AND EXCLUSIVE REMEDY AND LICENSOR’S ENTIRE LIABILITY FOR NONCONFORMING PRODUCT, AND IS IN LIEU OF, AND LICENSOR AND ITS SUPPLIERS EXPRESSLY DISCLAIM, ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD PARTY RIGHTS, ACCURACY, RELIABILITY OR PERFORMANCE, AND (2) IS BETWEEN LICENSOR AND LICENSEE (AS THE ORIGINAL PURCHASER) AND MAY NOT BE TRANSFERRED OR ASSIGNED, BY OPERATION OF LAW 3OR OTHERWISE, WITHOUT LICENSOR’S PRIOR WRITTEN CONSENT. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
- LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, SHALL LICENSOR OR ITS SUPPLIERS OR RESELLERS BE LIABLE TO LICENSEE OR ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, COMPUTER FAILURE OR MALFUNCTION, OR LOSS OR CORRUPTION OF DATA, OR (B) ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE FEES PAID BY LICENSEE FOR THE APPLICABLE PRODUCT IN THE TWELVE (12) MONTHS PRECEDING THE DATE THE CLAIM AROSE, OR, IF GREATER, ONE THOUSAND DOLLARS ($1,000). THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF LICENSOR SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.
- TERM AND TERMINATION. This Agreement shall continue until the end of the applicable license term designated by Licensor or as otherwise terminated as set forth in this section. Either party may terminate this Agreement if the other party materially breaches this Agreement and such breach is not cured within fifteen (15) days (or five (5) days in the case of non-payment or without opportunity to cure in the case of violation of Sections 1 or 2) of such party’s receipt of written notice describing the breach. Any termination of this Agreement shall also terminate the licenses granted hereunder. Upon termination of this Agreement for any reason, Licensee shall destroy and remove from all computers, hard drives, networks, and other storage media all copies of the Product, and shall so certify to Licensor that such actions have occurred. Sections 2 and 4 through 10, and all accrued rights to payment, shall survive termination of this Agreement.
- GOVERNMENT USE. If Licensee is part of an agency, department, or other entity of the United States Government (“Government”), the use, duplication, reproduction, release, modification, disclosure or transfer of the Product is restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The Product is “commercial item,” “commercial computer software” and “commercial computer software documentation.” In accordance with such provisions, any use of the Product by the Government shall be governed solely by the terms of this Agreement.
- EXPORT CONTROLS. Licensee shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control (“OFAC”), or other United States or foreign agency or authority, and Licensee shall not export, or allow the export or re-export of the Product or any related technical information in violation of any such restrictions, laws or regulations. By installing or using the Product, Licensee agrees to the foregoing and represents and warrants that Licensee is not located in, under the control of, or a national or resident of any restricted country.
- MISCELLANEOUS. This Agreement represents the complete agreement concerning the Product between the parties, to the exclusion of any pre-printed or contrary terms of any Licensee purchase order (or similar document), and supersedes all prior agreements and representations between them; provided, however, that if there is already a mutually signed agreement directly between Licensor and Licensee (not including any Licensee purchase order or similar document) covering Licensee’s license of the Product, then the express terms of that signed agreement will govern to the extent they are expressly contrary to this Agreement. This Agreement may be amended only by a writing executed by both parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision 4shall be reformed only to the extent necessary to make it enforceable. The failure of Licensor to act with respect to a breach of this Agreement by Licensee or others does not constitute a waiver and shall not limit Licensor’s rights with respect to such breach or any subsequent breaches. This Agreement is personal to Licensee and may not be assigned or transferred for any reason whatsoever without Licensor’s consent and any action or conduct in violation of the foregoing shall be void and without effect. Licensor expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder. This Agreement shall be governed by and construed under Georgia law as such law applies to agreements between Georgia residents entered into and to be performed within Georgia, and The U.N. Convention on Contracts for the International Sale of Goods shall not apply. Unless waived by Licensor in a particular instance, the sole and exclusive jurisdiction and venue for actions arising under this Agreement shall be the State and Federal courts in Georgia and each party hereby consents to the jurisdiction of such courts for any such dispute. The party prevailing in any dispute under this Agreement shall be entitled to its costs and legal fees.