End User License Agreement
This EULA sets forth the specific terms under which Licensor is licensing its products and providing services to Licensee.
1.1 “Add-on” means a separate component which works in conjunction with the Software to provide additional or enhanced functionality. Add-ons include, but are not limited to, plug-ins, macros, extensions and libraries.
1.2 “Software” means the Provar test automation software program, add-ons, and third party software programs supplied by Licensor and corresponding documentation, online or electronic documentation, and, if any, associated media and printed materials.
1.3 “Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the “intellectual property rights” referred to above include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
2. License Grants
The licenses granted in this section are subject to the terms and conditions set forth in this EULA.
2.1 Licensor grants Licensee a non-exclusive, non-transferable (except as provided below), limited license to install and use the Software on compatible devices. Licensee may install and use the Software as permitted by the license type purchased described in this EULA.
2.2 License Types:
2.2.1 Node-Locked License: Under the terms of a Node-Locked License, the Software is licensed for use on one computer or computing device at a time. This Node-Locked License will be bound to this computer or computing device and will only function on this computer or computing device.
2.2.2 Floating User License: A Floating User License of the Software may be run from different devices and by different users on a single private network. . The number of running instances of the Software at any one time may not exceed the number of Floating User Licenses. The Software may be installed within a virtual (or otherwise emulated) hardware system so long as the use of the Software meets the terms of the license type and these virtual machines are run on hardware owned or leased by Licensee. Floating User Licenses are the only license types that can recognize virtual instances. Virtualization technology may not be used to circumvent other licensing terms and restrictions.
2.2.3 Trial License: A Trial License may be used only to review, demonstrate and evaluate the Software for a limited time period. The Trial Version of the Software may have limited features and will cease operating after a predetermined amount of time or number of uses based on an internal metering mechanism within the Trial License.
2.3 Backups: Regardless of which version of the Software Licensee has acquired, Licensee may make backup copies of the Software.
2.4 Prior Versions: Prior Versions of the Software may be installed on the same computer with a properly licensed current version of Software. A Prior Version may be used by a properly licensed user in place of the current version of the Software. The prior version is not an additional license of the Software.
3. License Restrictions
Except to the extent contrary to applicable law:
3.1 The Software and its constituent parts, such as any provided Add-ons or other files, may not be reverse engineered, decompiled, disassembled or separated for use on more than one computer, nor placed for distribution, sale, or resale as individual creations by Licensee.
3.2 The provision of source code, if included with the Software, does not constitute transfer of any legal rights to such code, and any unauthorized resale or distribution of all or any portion of all source code and intellectual property will be prosecuted to the fullest extent of all applicable local, national and international laws. All Software remains Licensor’s exclusive property. If source code or modifiable files are provided, regardless of any modifications that Licensee makes, Licensee may not redistribute them unless Provar has expressly designated these as redistributable. Under no circumstances may Add-ons owned and distributed by Licensor be copied or distributed.
3.3 Other than as expressly set forth in Section 2, Licensee may not make or distribute copies of the Software, or electronically transfer the Software from one computer to another or over a network.
3.4 Licensee may not alter, merge, adapt or translate the Software, or decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human-perceivable form.
3.5 Unless otherwise provided herein, Licensee may not rent, lease, or sublicense the Software. Unless otherwise expressly authorized in a separate written agreement between, and executed by Licensee and Licensor, Licensee may not use, or permit the use of, In the Software on a timeshare or service bureau basis. In addition, unless otherwise expressly authorized in a separate written agreement between, and executed by Licensee and Licensor, Licensee may not host, on a subscription basis or otherwise, the Software to permit a third party to use the Software for any reason.
3.6 Other than as expressly set forth in Section 2 hereof, Licensee may not create derivative works based upon the Software.
3.7 Unless otherwise provided herein, Licensee shall not (A) in the aggregate, install or use more than one copy of the Trial Version of the Software, (B) download the Trial Version of the Software under more than one username, (C) alter the contents of a hard drive or computer system to enable the use of the Trial Version of the Software for an aggregate period in excess of the trial period for one license to such Trial Version, (D) disclose the results of software performance benchmarks obtained using the Trial Version to any third party without Licensor’s prior written consent, (E) use the Trial Version for any application deployment or ultimate production purpose, or (F) use the Trial Version of the Software for a purpose other than the sole purpose of determining whether to purchase a license to the Software; provided, however, notwithstanding the foregoing, Licensee is strictly prohibited from installing or using the Trial Version of the Software for any commercial training purpose.
3.9 Licensee may not export the Software into any country prohibited by the United States Export Administration Act and the regulations thereunder.
3.10 If the Software was purchased with a Floating User License: Licensee will not permit the number of individuals simultaneously running the Software, to exceed such number of Floating User Licenses purchased by Licensee.
3.11 If and only if the Software was purchased with a Node-Locked License: Licensee may permit a person authorized by Licensee to access the Software to create, modify, store, convert, manage, or display any information on the computer or computing device on which the Node-Locked Software is installed.
3.12 In the event that Licensee fails to comply with this EULA, Licensee may terminate the license and Licensee must destroy all copies of the Software (with all other rights of both parties and all other provisions of this EULA surviving any such termination).
4.1 In exchange for the Software and associated Support Services, Licensee will pay to Licensor the annual fees (“Annual License Fees”) set forth in the order form(s) for the Software and Support Services executed by Licensee (each an “Order Form” and collectively “Order Forms”). Unless otherwise stated on the Order Form, the Annual License Fees are exclusive of all taxes.
4.2 All undisputed amounts for Annual License Fees are due and payable in US dollars within thirty (30) days from the date invoice is received by Licensee. Annual License Fees will be invoiced annually in advance unless otherwise agreed to in an Order Form.
5. Support Services
During the term of this EULA, Licensor will provide Licensee with support services related to the Software (the “Support Services”). Use of the Support Services is governed by Licensor’s policies and programs described in online documentation and/or other Licensor provided materials.
As part of these support services, Licensor may make available bug lists, planned feature lists, and other supplemental informational materials.
Any supplemental software code or related materials that Licensor provides to Licensee as part of the support services, in periodic updates to the Software or otherwise, is to be considered part of the Software and is subject to the terms and conditions of this EULA.
With respect to any technical information Licensee provides to Licensor as part of the support services, Licensor may use such information for its business purposes without restriction, including for product support and development.
6. Software Activation, Updates and License Metering
6.1 Update Notification Service: Licensor may provide a free update notification service with the Software. An update notification service may use Licensee’s internal network and Internet connection for the purpose of transmitting license-related data to a Licensor operated update notification server at appropriate intervals and determine if there is any update available for the Software and notify Licensee of its availability.
The foregoing grants of rights give Licensee limited license to use the Software. Except as expressly provided in this EULA, Licensor and its suppliers retain all right, title and interest, including all copyright and intellectual property rights, in and to, the Software (as an independent work and as an underlying work serving as a basis for any improvements, modifications, derivative works, and applications Licensee may develop), and all copies thereof. All rights not specifically granted in this EULA, including local and international copyrights, are reserved by Licensor and its suppliers.
8. Limited Warranty and Disclaimer
8.1 Except with respect to the Sample Code and the Trial Version of the Software, Licensor warrants that, for a period of thirty (30) days from the date of delivery when used with a recommended hardware configuration, the Software will perform in substantial conformance with the documentation supplied with the Software. Licensor represents and warrants to Licensee that: (A) it owns or otherwise has the irrevocable right to license, provide and deliver the Software and that it possesses all rights and interests in the Software otherwise necessary to enter into this EULA; (B) upon at the Effective Date and during the Term of this EULA, the Software shall be free and clear of all liens, restrictions, claims, charges, security interests, or other encumbrances of any nature whatsoever which might affect or adversely impact on Licensee’s use of the Software hereunder; (C) no approval, authorization, consent, permission, or waiver to or from, or notice, filing, or recording to or with, any person, entity or governmental authority is necessary for the execution and delivery of this EULA and the license granted hereunder; and (D) the Software and the use and receipt thereof by Licensee does not and will not infringe, violate or in any manner contravene, breach or constitute an unauthorized use or misappropriation of any patent, trademark, copyright, license, contractual or other property or proprietary right of any third party or constitute the unauthorized use or misappropriation of a third party trade secret and there are no claims, demands or proceedings that have been instituted, or are pending or threatened, by any person against Licensor or, to Licensor’s knowledge, any licensee or customer of Licensor alleging any matter contrary to the foregoing.
8.2 LICENSOR PROVIDES NO REMEDIES OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, FOR THE SAMPLE CODE, THE TRIAL VERSION OR ANY PRE-RELEASE VERSIONS OF THE SOFTWARE. THE SAMPLE CODE, THE TRIAL VERSION AND ANY PRE-RELEASE VERSIONS OF THE SOFTWARE ARE PROVIDED “AS IS”.
8.3 EXCEPT AS SET FORTH IN THE FOREGOING LIMITED WARRANTY WITH RESPECT TO SOFTWARE OTHER THAN THE SAMPLE CODE AND THE TRIAL VERSION AND ANY PRE-RELEASE VERSIONS, LICENSOR AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. LICENSOR DOES NOT WARRANT THAT THE SOFTWARE IS ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. NO RIGHTS OR REMEDIES REFERRED TO IN ARTICLE 2A OF THE UCC WILL BE CONFERRED ON LICENSEE UNLESS EXPRESSLY GRANTED HEREIN. THE SOFTWARE IS NOT DESIGNED, INTENDED OR LICENSED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING WITHOUT LIMITATION, THE DESIGN, CONSTRUCTION, MAINTENANCE OR OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS. LICENSOR SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH PURPOSES.
8.4 IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SOFTWARE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO THIRTY (30) DAYS FROM THE DATE OF DELIVERY.
8.5 NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR, ITS DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN.
8.6 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO LICENSEE. THIS WARRANTY GIVES LICENSEE SPECIFIC LEGAL RIGHTS AND LICENSEE MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
9. Exclusive Remedy
Licensee’s exclusive remedy under Section 8 is to raise a support case on the Provar Support website http://www.provartesting/support including a description of the problem. Licensor will use reasonable commercial efforts to correct such nonconformance, or if such obligation is inadequate as a remedy or, in Licensor’s opinion, impractical, to refund to Licensee the Annual License Fees paid for the Software. Licensor shall have no responsibility if the Software has been altered in any way by Licensee, if the media has been damaged by misuse, abuse, modification or misapplication, or if the failure arises out of use of the Software with other than a recommended hardware configuration. Any such misuse, abuse, modification or misapplication of the Software will void the warranty above. THIS REMEDY IS THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO LICENSEE FOR BREACH OF EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SOFTWARE AND RELATED DOCUMENTATION.
10. INDEMNIFICATION AND LIMITATION OF LIABILITY
10.1 IN CONNECTION WITH LICENSEE’S USE OF THE SOFTWARE OR PORTIONS OR COMPONENTS THEREOF DURING THE TERM OF THIS EULA, LICENSOR, AT ITS SOLE EXPENSES, HEREBY AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS LICENSEE AND ITS AFFILIATES AND THEIR OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS (EACH AN “INDEMNIFIED PARTY” AND COLLECTIVELY, “THE “INDEMNIFIED PARTIES”) AGAINST ANY AND ALL THIRD PARTY CLAIMS, DEMANDS, SUITS, ACTIONS AND PROCEEDINGS AT LAW OR IN EQUITY (EACH A “CLAIM” AND COLLECTIVELY, THE “CLAIMS”) AND ALL RELATED LIABILITIES, JUDGMENTS, AWARDS, SETTLEMENTS DAMAGES AND COSTS INCLUDING WITHOUT LIMITATION REASONABLE LEGAL FEES AND EXPENSES (COLLECTIVELY “LOSSES”) ASSERTED AGAINST OR INCURRED BY LICENSEE OR ANY OTHER INDEMNIFIED PARTY ARISING OUT OF OR IN CONNECTION WITH ANY CLAIM OR ALLEGATION THAT: (A) THE SOFTWARE OR PORTIONS OR COMPONENTS THEREOF, OR THE USE THEREOF FOR THE USES PERMITTED HEREUNDER, INFRINGES, CAUSES THE INFRINGEMENT OR MISAPPROPRIATES OF ANY PATENT, COPYRIGHT, TRADEMARK, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHT, LICENSE, CONTRACTUAL OR OTHER PROPERTY OR PROPRIETARY RIGHT OF ANY THIRD PARTY, WHETHER OR NOT SUCH CLAIM OR ALLEGATION IS SUCCESSFUL; OR (B) IF TRUE, WOULD CONSTITUTE A BREACH OF ANY REPRESENTATION, WARRANTY OR COVENANT MADE BY LICENSOR HEREUNDER. LICENSEE WILL GIVE PROMPT WRITTEN NOTICE OF ANY CLAIM OF WHICH LICENSEE IS AWARE TO LICENSOR (THE FAILURE BY LICENSEE TO GIVE NOTICE AS PROVIDED ABOVE SHALL NOT RELIEVE LICENSOR OF ITS OBLIGATIONS UNDER THIS SECTION). IF THE SOFTWARE, OR ANY PART THEREOF, CONSTITUTE OR MAY CONSTITUTE INFRINGEMENT OR MISAPPROPRIATION OF ANOTHER PARTY’S RIGHTS AND/OR LICENSEE’S USE THEREOF IS OR MAY BE ENJOINED, LICENSOR WILL AT ITS OPTION AND EXPENSE: (I) OBTAIN FOR LICENSEE THE RIGHT TO USE SOFTWARE; (II) REPLACE OR MODIFY SOFTWARE IN SUCH A WAY THAT IT IS NON-INFRINGING AND SUBSTANTIALLY PERFORMS IN THE SAME MANNER; OR IF NEITHER OF THE PROCEEDING OPTIONS ARE COMMERCIALLY REASONABLY ACHIEVABLE, (III) LICENSEE WILL REMOVE THE SOFTWARE, LICENSOR WILL REFUND TO LICENSEE ANY UNUSED ANNUAL LICENSE FEES, AND LICENSEE SHALL NOT ANY OBLIGATION TO PAY ANY ADDITIONAL FEES.
10.2 NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION OR THE LIKE), ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SOFTWARE AND BASED ON ANY THEORY OF LIABILITY INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE..
10.3 EXCEPT WITH RESPECT TO CLAIMS MADE UNDER SECTION 10.1, EACH PARTY’S TOTAL LIABILITY TO THE OTHER FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO THE AMOUNT PAID BY LICENSEE FOR THE SOFTWARE.
10.4 THE EXCLUSIONS IN SECTIONS 10.2 AND 10.3 SHALL APPLY TO THE FULLEST EXTENT PERMISSIBLE AT LAW, BUT LICENSOR DOES NOT EXCLUDE LIABILITY FOR:
(A) DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF LICENSOR, ITS OFFICERS, EMPLOYEES, CONTRACTORS OR AGENTS;
(B) FRAUD OR FRAUDULENT MISREPRESENTATION; OR
(C) ANY OTHER LIABILITY WHICH MAY NOT BE EXCLUDED BY LAW.
10.4 THE FOREGOING LIMITATIONS ON LIABILITY ARE INTENDED TO APPLY TO THE WARRANTIES AND DISCLAIMERS ABOVE AND ALL OTHER ASPECTS OF THIS EULA.
11. Basis of Bargain
The Limited Warranty and Disclaimer, Exclusive Remedies and Limitation of Liability set forth above are fundamental elements of the basis of the agreement between Licensor and Licensee. Licensor would not be able to provide the Software on an economic basis without such limitations.
12. Third Party Software
The Software may contain third party software which requires notices and/or additional terms and conditions. Such required third party software notices and/or additional terms and conditions are located in a file called thirdparty.txt in the software installation folder and are made a part of and incorporated by reference into this EULA. By accepting this EULA, Licensee is also accepting the additional terms and conditions, if any, set forth therein.
Licensee agrees to be identified as a customer of Licensor. Licensor may with Licensee’s prior written consent, which may be withheld for any reason, refer to Licensee by name, trade name and trademark, if applicable, and may briefly describe Licensee’s business in Licensor’s marketing materials and website. If Licensee chooses to give such written permission, Licensee thereby grants Licensor a license to use Licensee’s name and any of Licensee’s trade names and trademarks noted in the written permission, solely in connection with the rights granted to Licensor pursuant to this marketing section.
14. Term and Termination
The “Term” of this EULA will commence on the Effective Date stated above and will remain in effect until terminated pursuant to the terms of this Section. The “Initial Subscription Term” of this EULA is be set forth in such Order Form. Upon expiration of the Initial Subscription Term of any Quote, the term of such Quote will not be automatically renewed. Either party may terminate this EULA and all Quotes immediately by written notice: (a) if the other party commits a non-remediable material breach; or (b) upon thirty (30) days notice to the other party of a material breach if such breach remains uncured at the expiration of such period.
15. Intellectual Property Rights
If the licensed right of use for the Software is purchased by Licensee with an intent to reverse engineer, decompile, or illegally transfer any intellectual property, trade secrets, including any exposed methods or source code where provided, no right of use shall exist, and any products created as a result shall be judged illegal by definition of all applicable law. Any sale or resale of intellectual property or created derivatives so obtained will be prosecuted to the fullest extent of all local, national and international law.
16.1 This EULA and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by the internal laws of England and Wales, without giving effect to principles of conflict of laws. In each case this EULA shall be construed and enforced without regard to the United Nations Convention on the International Sale of Goods.
16.2 If this Software was acquired outside England and Wales, then Licensee agrees to the adherence to all applicable international treaties regarding copyright and intellectual property rights which shall also apply. In addition, Licensee agrees that any local laws to the benefit and protection of Licensor’s ownership of, and interest in, its intellectual property and rights of recovery for damages thereto will also apply.
16.3 This EULA contains the complete agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, whether oral or written. Licensee agrees that any varying or additional terms contained in any purchase order or other written notification or document issued by Licensee in relation to the Software licensed hereunder shall be of no effect. The failure or delay of either party to exercise any of its rights under this EULA or upon any breach of this EULA shall not be deemed a waiver of those rights or of the breach.
16.4 Licensor may at any time assign all of its rights and obligations under this EULA, provided it gives Licensee written notice.
16.5 If any provision of this EULA shall be held by a court of competent jurisdiction to be contrary to law that provision will be enforced to the maximum extent permissible and the remaining provisions of this EULA will remain in full force and effect.
16.6 Licensor and other trademarks contained in the Software are trademarks or registered trademarks of Licensor in the United Kingdom and/or other countries. Third party trademarks, trade names, product names and logos may be the trademarks or registered trademarks of their respective owners. Licensee may not remove or alter any trademark, trade names, product names, logo, copyright or other proprietary notices, legends, symbols or labels in the Software. This EULA does not authorize Licensee to use Licensor’s names or any of their respective trademarks.