Numecent End User License Agreement

IMPORTANT-PLEASE READ CAREFULLY: BY DOWNLOADING, INSTALLING, OR USING THE SOFTWARE, YOU (THE INDIVIDUAL OR LEGAL ENTITY, HEREIN DEFINED AS “YOU” OR “YOUR”) AGREE TO BE BOUND BY AND ACCEPT THE TERMS OF THIS END USER LICENSE AGREEMENT (“EULA”) FOR SOFTWARE LICENSED FROM NUMECENT (“NUMECENT”). IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU MUST NOT DOWNLOAD, INSTALL, COPY, OR USE THE SOFTWARE, AND YOU MUST DELETE OR RETURN THE SOFTWARE UNUSED TO NUMECENT OR THE COMPANY THAT SUPPLIED IT TO YOU WITHIN THIRTY (30) DAYS AND REQUEST A REFUND OF THE LICENSE FEE, IF ANY, THAT YOU PAID FOR THE SOFTWARE.

THE EFFECTIVE DATE OF THIS EULA IS THE DAY YOU FIRST DOWNLOAD, INSTALL OR USE THE SOFTWARE.

  1. DEFINITIONS

Capitalized terms, not otherwise defined in the EULA, shall have the meaning set forth in this Section 1.

1.1 Application means the object code version of the software developed by Numecent residing on Your computer or Virtual Machine and used by You.

1.2 Authorized Concurrent User(s) means an Authorized User that You authorize to have concurrent access to and Permitted Use of the Software pursuant to the terms of this EULA.

1.3 Authorized Reseller means an authorized distributor, reseller or dealer of the Software.

1.4 Authorized User(s) means You, or Your employees or an individual independent contractor authorized by You for Permitted Use of the Software pursuant to the terms of this EULA. An Authorized User means an individual person, and is not a corporation, company, partnership or association or other entity or organization.

1.5 Cloudpaging means the proprietary protocols and technologies developed by Numecent which allow software applications to be delivered to a client device.

1.6 Cloudified means the process of converting a personal computer software application into a proprietary Numecent format which format allows the software application to become deliverable to a client device using Cloudpaging technology.

1.7 Documentation means, collectively, any user guides, reference manuals, installation materials, release notes and other supporting material relating to the Software as are currently maintained by Numecent and provided to its licensees with or without the Software, in online, electronic or written form.

1.8 Guest Operating Systems means instances of third-party operating systems licensed separately by You and installed in a Virtual Machine.

1.9 License Fee means the applicable fee, if any, which You have paid to license the Software.

1.10 Open Source Software means any software components, including software components that include open source software, which may be part of the Software, that are each licensed to You under separate applicable license terms and conditions, which can be found in the Documentation.

1.11 Permitted Use means licensed uses that are limited to Your internal use, including business, educational or research purposes and operations, provided any such use is in non-hazardous environments and environments that do not require fail-safe controls, thus excluding for example only, uses for navigation, power facilities, communications, hospital or life support systems.

1.12 Software means the Application as well as any other software products, in object code only, that are licensed to You under this EULA, including, but not limited to, the Software License Key and any related software components purchased or provided with the Software or Documentation, and any Numecent-authorized updates, replacements or modifications thereto.

1.13 Software License Key means a unique series of data elements which enable You to access and make Permitted Use of the version of the Software licensed to You.

1.14 Third Party Software means certain software supplied by third parties that Numecent or an Authorized Reseller or partner provides access to as part of or through Permitted Use of the Software.

1.15 Virtual Machine means an instance of a Guest Operating System and any application programs installed thereon, running on a computing device on which the Software is installed, or suspended to disk or other storage media accessible by the computing device.

  1. BETA SOFTWARE, EVALUATION PRODUCT AND NOT FOR RESALE SOFTWARE LICENSES

2.1 General. As defined in this Section 2, certain Software may be Beta Software, Evaluation Product and Not for Resale Software that are only licensed for Permitted Use pursuant to this Section 2 and are not otherwise licensed as Software herein. If available, the Software may be activated for temporary Permitted Use with one or more no-cost evaluation Software License Keys. You acknowledge that evaluation Software License Keys have an expiration date (“Expiration Date”) and that Numecent is not obligated to allow further Permitted Use of the Software after the Expiration Date.

2.2 Beta Software. If the Software you have received is pre-release or beta Software (“Beta Software”) then this provision applies to any Permitted Use of the Beta Software. In the event of a conflict between the terms and conditions of this Section 2.2 and any other term or condition in this EULA, the terms and conditions of this Section 2.2 shall supersede such other terms or conditions with respect to the Beta Software. You acknowledge that the Beta Software is a pre-release version, does not represent the final product from Numecent, and may contain bugs, errors, security flaws, and other problems that could cause system or other failures or security breaches. You acknowledge that Numecent has no express or implied obligation to inform You that the Beta Software is Beta Software, that Numecent may not subsequently introduce a product similar to or compatible with the Beta Software, and that Numecent is under no obligation to replace the Beta Software or otherwise provide You with other Software at any point in the future. You may not sublicense, lease, loan, rent, copy, distribute or otherwise transfer the Beta Software.

2.3 Evaluation License. If You are receiving a license to the Software for demonstration or evaluation purposes (the “Evaluation Product”), Your Permitted Use of the Evaluation Product is further restricted to use within a non-production environment and only for internal demonstration, test or evaluation of the suitability of the Evaluation Product for licensing on a for-fee basis until the Expiration Date.

2.4 Not For Resale. If the Software is “Not for Resale Software,” notwithstanding any term to the contrary in this Agreement, Your Permitted Use of the Not for Resale Software is further restricted to use only if You are a current Authorized Reseller and then only for demonstration, test or evaluation purposes in support of Your customers. Note that Not for Resale Software disables itself on the Expiration Date set forth in the Documentation.

2.5 Beta Software, Evaluation Product and Not for Resale Warranty Disclaimer. NOTWITHSTANDING ANY OTHER PROVISION IN THIS EULA, EACH OF THE BETA SOFTWARE, EVALUATION PRODUCT AND THE NOT FOR RESALE SOFTWARE IS PROVIDED TO YOU “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. NUMECENT AND ANY AUTHORIZED RESELLER OF THE SOFTWARE TO YOU BEAR NO LIABILITY FOR ANY DAMAGES RESULTING FROM PERMITTED USE (OR ATTEMPTED PERMITTED USE) OF EACH OF THE BETA SOFTWARE, EVALUATION PRODUCT AND THE NOT FOR RESALE SOFTWARE THROUGH AND AFTER THE EXPIRATION DATE. WHERE LEGAL LIABILITY CANNOT BE EXCLUDED FOR BETA SOFTWARE, EVALUATION PRODUCT OR NOT FOR RESALE PRODUCT, BUT IT MAY BE LIMITED, NUMECENT’S LIABILITY SHALL BE LIMITED TO THE SUM OF FIFTY DOLLARS (USD $50) IN TOTAL.

2.6 No Support. Numecent has no duty to provide support to you during Your Permitted Use of the Beta Software, Evaluation Product or the Not for Resale Software.

  1. GRANT AND USE RIGHTS FOR SOFTWARE

3.1 License Grant. The Software is licensed, not sold. Subject to the terms and conditions of this EULA, Numecent grants You a non-exclusive, non-transferable license, without rights to sublicense, for Permitted Use to: (i) reproduce, distribute and install copies of the Software on the computers of the Authorized Users or the Authorized Concurrent Users, as applicable,; or (ii) allow up to the permitted number of Authorized Users or Authorized Concurrent Users, as applicable, to use the Software in accordance with the Documentation and, subject to Section 3.2, provided You have paid the applicable License Fees. Numecent shall issue you a Software License Key that identifies the specific Software licensed herein and the number of Authorized Users or Concurrent Authorized Users for such Software. If You were invoiced in the European Union for the Software, You may use that Software in any of the European Union member states for a Permitted Use. You may allow Authorized Users and Authorized Concurrent Users to access and make a Permitted User of the Software on Your behalf, provided, they are bound by an agreement with You protecting Numecent’s intellectual property with terms no less stringent than this EULA and You ensure that such Permitted Use of the Software complies with the terms of this EULA. This license grant includes the right to use the Documentation for the sole purpose of a Permitted Use of the Software. You may make one backup, unmodified copy of the Software in machine readable form solely for archival purposes, provided that you reproduce all Proprietary Notices, as defined in Section 3.2(vii), on the copy. If You upgrade or exchange the Software from a previous validly licensed version of the Software, You must cease use of the prior version of that Software. The Application is intended for Your own personal non-commercial use only. The Application may only be used commercially or be re-distributed with written agreement from Numecent.

3.2 Restrictions and Other Rights.

(a) Except as expressly permitted by this EULA or by applicable law, You may not directly or indirectly:

(i) sell, lease, assign, license, sublicense, distribute or otherwise transfer in whole or in part the Software or the Documentation;

(ii) permit any use of or access to the Software or the Documentation by any third party, except as provided in Section 3.1 above;

(iii) operate the Software on behalf of or for the benefit of any third party, including the operation of any service that is accessed by a third party, except that, for the purposes of this Section 3.2(iii), You may make Permitted Use of the Software to deliver hosted services to Your affiliates that are directly or indirectly controlled by, or are under common control with You. “Control” in this Section 3.2(iii) means an ownership, voting or similar interest representing fifty percent (50%) or more of the total interests then outstanding of the relevant entity;

(iv) copy, decompile, disassemble, reverse engineer, otherwise alter the Software or the Documentation or convert the Software to human readable form or source code;

(v) modify or create derivative works based upon the Software or the Documentation;

(vi) create, develop, license, install, use, or deploy any software or services to circumvent, enable, modify or provide access, permissions or rights which violate the technical restrictions in the Software;

(vii) alter or remove any copyright, patent, trade secret, proprietary or other legal notices, labels or marks (“Proprietary Notices”) on the Software or the Documentation; or

(viii) incorporate any feature of the Software as part of a system or piece of software or hardware, except as provided in Section 3.1 above.

(b) Without a separate Virtual Desktop Infrastructure (VDI) license issued by Numecent You may not, directly or indirectly, use the Software in a VDI environment;

(c) If the Software is to be used in higher education, You may not without a separate device license agreement issued by Numecent, directly or indirectly use the Software in a laboratory environment;

(d) Without a separate Managed Service Provider (MSP) license issued by Numecent You may not, directly or indirectly, use the Software in a managed service offering.

(e) You acknowledge that the Software may include features that ensure that Your use of the Software complies with the terms and conditions of this EULA and that, where permitted by applicable law, Numecent reserves the right to and will transfer information regarding such use from the Software or any computing device operating the software to Numecent without further notice to You and that Numecent reserves the right to and will disable, alter or destroy the Software in the event of a breach of this EULA.

3.3 Third-Party Software. You are responsible for separately obtaining and complying with any licenses necessary to operate Third-Party Software, including but not limited to, Guest Operating Systems and application programs which the Software enables You to access and run.

3.4 Audit Rights. During the term of this EULA and for two (2) years after termination or expiration of the EULA or support services for the applicable Software has expired, You agree to maintain accurate records as to Your installation and use of the Software, sufficient to provide evidence of compliance with the terms of this EULA. Numecent, or an independent third party designated by Numecent, may audit, upon written notice to You, Your books, records, and computing devices to determine Your compliance with this EULA and Your payment of the applicable license and support services fees, if any, for the Software. Numecent may conduct no more than one (1) audit in any twelve (12) month period. In the event that any such audit reveals an underpayment by You of more than five percent (5%) of the license amounts due to Numecent in the period being audited, or that You have breached any term of the EULA, then, in addition to paying to Numecent any underpayments for Software licenses fees and any other remedies Numecent may have, You will promptly pay to Numecent the audit costs incurred by Numecent.

3.5 Upgrading the Software. Numecent may issue you an upgraded version of the Software automatically upon an instance of Your use of the Software or otherwise in connection with Your use of a device operating in conjunction with the Software. Alternatively, Numecent may require you to consent to an upgrade to the Software (“Software Upgrades”) before using, installing or accessing the Software. If you decline the Software Upgrades, you may not be able to use or access the Software or utilize the device operating in conjunction with the Software.

  1. TITLE. No title to or ownership of the Software is transferred to you. Numecent or its applicable licensors retains all rights, title, interest in and ownership of the Software, the Software License Key(s), the Documentation or any copy thereof regardless of the form or media on or in which the original or any copy may exist and all related intellectual property rights, including, without limitation, patents, copyrights, trademarks and trade secrets. All rights in and to Cloudified Third Party Software that is delivered or operated through Your use of the Application belongs to the respective owner of such Third Party Software.
  1. SUPPORT SERVICES. Numecent does not provide any support for the Software under this EULA.
  1. TERMINATION. This EULA is effective until terminated. Your rights under this EULA are terminable by Numecent at any time without notice. Further, this EULA will terminate if Numecent finds that you have violated any of the terms or conditions of this EULA. No waiver of any breach of any provision of this EULA by Numecent shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless it is made in writing and is signed by an authorized representative of Numecent. Any obligations to pay fees incurred prior to termination, all provisions relating to confidentiality, proprietary rights, and nondisclosure and Sections 3 (except for 3.1), 4, 6, 7, 8, and 9 shall survive the termination of this EULA. In the event of termination, You must remove and destroy all copies of the Software and Software License Key(s), including all backup copies, from the server and all computers and terminals You own, possess or control and on which the Software is installed.
  1. EXCLUSION OF WARRANTIES

7.1 YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SOFTWARE IS AT YOUR SOLE RISK AND THAT IT IS PROVIDED “AS IS” AND “AS AVAILABLE.”

7.2 NUMECENT, ITS SUBSIDIARIES AND AFFILIATES, AND ITS AUTHORIZED RESELLERS MAKE NO EXPRESS WARRANTIES AND DISCLAIM ALL IMPLIED, STATUTORY OR OTHER WARRANTIES REGARDING THE SOFTWARE, INCLUDING IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NUMECENT, ITS SUBSIDIARIES AND AFFILIATES, AND ITS AUTHORIZED RESELLERS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE SOFTWARE WILL MEET YOUR REQUIREMENTS, AND (B) YOUR USE OF THE SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR. THE SOFTWARE IS PROVIDED “AS IS” AND “AS AVAILABLE” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. NUMECENT DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.

7.3 YOU EXPRESSLY HEREBY AGREE AND ACKNOWLEDGE THAT ANY REPRESENTATIONS, WARRANTIES, GUARANTEES, INDEMNITIES, CLAIMS, OR OTHER COMMITMENTS CONCERNING OR RELATING TO THE SOFTWARE MAY ONLY BE MADE BY NUMECENT, EXCLUDING ANY AUTHORIZED RESELLER.

  1. LIMITATION OF LIABILITY

8.1 NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY YOU HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.

8.2 YOU EXPRESSLY UNDERSTAND AND AGREE THAT NUMECENT, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING ,BUT NOT LIMITED TO, LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, STRICT PRODUCT LIABILITY, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS.

8.3 THE LIMITATIONS ON NUMECENT’S LIABILITY TO YOU IN THIS SECTION 8 SHALL APPLY WHETHER OR NOT NUMECENT HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.

  1. U.S. GOVERNMENT END USERS.

The Software and Documentation are deemed “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, respectively, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through §227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.

The Software and Documentation are deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212(b), as applicable. Any use, modification, reproduction, release, performance, display, or disclosure of the Software by the U.S. Government shall be governed solely by the terms of this EULA.

  1. MARKETING

Numecent may publicly refer to You, including on Our website, in use cases and in sales presentations, as a Numecent customer and may use Your logo for such purposes. You hereby grant Numecent and its subsidiaries and affiliates a limited, worldwide, license to use Your logo solely for the purpose set forth in this Section 10.

  1. GENERAL

11.1 Entire Agreement. This EULA represents the entire agreement between the parties with respect to the Software, and supersedes any prior or contemporaneous oral or written agreements concerning the subject matter contained herein.

11.2 Headings. Headings under this EULA are intended only for convenience and shall not affect the interpretation of this EULA.

11.3 Waiver and Modification. No failure of either party to exercise or enforce any of its rights under this EULA will act as a waiver of those rights. This EULA may only be modified, or any rights under it waived, by a written agreement executed by the party against which it is asserted.

11.4 Severability. If any provision of this EULA is found illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions of this EULA will not be affected.

11.5 Export Controls. The Software and Documentation are of United States origin and are provided subject to the U.S. Export Administration Regulations. Diversion contrary to U.S. law is prohibited. Without limiting the foregoing, You agree that (1) You are not, and are not acting on behalf of, any person who is a citizen, national, or resident of, or who is controlled by the government of, Cuba, Iran, North Korea, Sudan, or Syria, or any other country to which the United States has prohibited export transactions; (2) You are not, and are not acting on behalf of, any person or entity listed on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons, or the U.S. Commerce Department Denied Persons List or Entity List; and (3) You will not use the Software or Documentation for, and will not permit the Software or Documentation to be used for, any purposes prohibited by law, including, without limitation, for any prohibited development, design, manufacture or production of missiles or nuclear, chemical or biological weapons.

11.6 Governing Law.

(a) If You are located in the United States and are using the Software in the United States then this EULA will be governed and construed in accordance with the laws of the state of California (excluding its conflict of laws principles and the U.N. Convention on Contracts for the International Sale of Goods) and You expressly agree that exclusive jurisdiction for any claim or dispute with Numecent or relating in any way to Your use of the Software resides in the federal or state courts of the state of California and You further agree and expressly consent to the exercise of personal jurisdiction in the federal or state courts of the state of California in connection with an such claim or dispute.

(b) If You are located in the European Union and are using the Software in the European Union and not in the United States, then this EULA will be governed and construed in accordance with the laws of England and Wales (excluding its conflict of laws principles and the U.N. Convention on Contracts for the International Sale of Goods) and You expressly agree that exclusive jurisdiction for any claim or dispute with Numecent or relating in any way to Your use of the Software resides in the courts of England and Wales in connection with any such claim or dispute.

(c) If You are located outside of the European Union or the United States and are not using the Software in the United States, then this EULA will be governed and construed in accordance with the laws of the state of California (excluding its conflicts of laws principles and the U.N. Convention on Contracts for the International Sale of Goods) and You expressly agree that exclusive jurisdiction for any claim or dispute with Numecent relating in any way to Your use of the Software resides in the courts of the federal or state courts of the state of California and You further agree and expressly consent to the exercise of personal jurisdiction in the federal or state courts of the state of California in connection with an such claim or dispute.

11.7 Contact Information. Please direct legal notices or other correspondence to Numecent, Inc., 530 Technology Drive, Suite 375, Irvine, CA 92618, United States of America. If You have any questions concerning this EULA, please send an email to legal@numecent.com.

11.8 Notices. Any notice or communication given under this EULA shall be in writing and shall have been properly given by either of us to the other if sent by certified or registered mail, return receipt requested, or by overnight courier to the address shown on Numecent’s website for Numecent and the address shown in Numecent’s records for You, or such other address as the parties shall designate by notice given in the manner set forth above.

11.9 Binding. This EULA will bind and inure to the benefit of the parties and our respective heirs, personal and legal representatives, affiliates, successors and permitted assigns. Copyright © 1996-2020 Numecent, Inc. All rights reserved. Numecent software products are protected by one or more US Patents listed at https://www.numecent.com/patents/.

Updated as of September 1, 2019