Numecent End User License Agreement
IMPORTANT-PLEASE READ CAREFULLY: BY DOWNLOADING, INSTALLING, OR USING THE SOFTWARE, YOU (THE INDIVIDUAL OR LEGAL ENTITY) AGREE TO BE BOUND BY AND ACCEPT THE TERMS OF THIS END USER LICENSE AGREEMENT (“EULA”) FOR LICENSED SOFTWARE FROM NUMECENT (“NUMECENT”). IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU MUST NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE, AND YOU MUST DELETE OR RETURN THE UNUSED SOFTWARE TO THE VENDOR FROM WHICH YOU ACQUIRED IT 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.
Capitalized terms, not otherwise defined in the EULA, shall have the meaning set forth in this Section 1.
1.1 Application Jukeboxmeans the object code version of the Software residing on your Computer and used by You to access and cloudpage applications.
1.2 Authorized Concurrent User(s) means an Authorized User that You authorize to have concurrent access to and use of the Software pursuant to the terms of this EULA.
1.3 Authorized Server means a computer file server on your internal network designated to run the Software for use by Authorized Users or Authorized Concurrent Users.
1.4 Authorized Reseller means an authorized distributor, reseller or dealer of the Software.
1.5 Authorized User(s) means You, or your employees or an individual independent contractor authorized by You to use 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.
1.6 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, in online, electronic or written form.
1.7 Guest Operating Systems means instances of third-party operating systems licensed separately by You and installed in a Virtual Machine.
1.8 Application Jukebox means the object code version of the Software residing on your Computer and used by You to access and cloudpage applications.
1.9 License Fee means the applicable fee for which You license the Software.
1.10 Open Source Software means various software components including open source software, that may be part of the Software, each licensed to You under its own applicable license terms and conditions, which can be found in the license.txt file.
1.11 Software means Application Jukebox as well as any other all 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, Documentation, and any Numecent-authorized Updates, replacements or modifications thereto.
1.12 Software License Key means a unique series of data elements which enables You to access and use the version of the Software licensed to You.
1.13 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 the use of the Software.
1.14 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.
2. BETA, EVALUATION AND PARTNER DEMO LICENSES
2.1 General. If available, the Software may be activated with no-cost evaluation Software License Key(s). You acknowledge that evaluation Software License Keys have an expiration date (“Expiration Date”) and that Numecent is not obligated to permit further use of the Software.
2.2 Beta Software. If the Software you have received is pre-release or beta Software (“Beta Software”) then this provision applies. To the extent of the conflict between this provision and any other term or condition in the Agreement, this section 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 and other problems that could cause system or other failures. You acknowledge that Numecent has no express or implied obligation to You to announce or introduce the Beta Software, and that Numecent may not introduce a product similar to or compatible with the Beta Software. You may not sublicense, lease, loan, rent, distribute or otherwise transfer the Beta Software.
2.2 Evaluation License. If You are licensing the Software for demonstration or evaluation purposes (the “Evaluation Product”), your use of the Evaluation Product is only permitted in 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.
2.3 Not For Resale. If the Software is “Not for Resale Software,” notwithstanding any term to the contrary in this Agreement, your license permits use only if You are a current Numecent 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 in the Software Documentation.
2.4 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” without warranty of any kind, whether express, implied, statutory, or otherwise. NUMECENT AND ANY LICENSOR OF THE SOFTWARE TO YOU BEAR NO LIABILITY FOR ANY DAMAGES RESULTING FROM USE (OR ATTEMPTED USE) OF EACH OF THE 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.
2.5 No Support. Numecent has no duty to provide support to you during your use of the Beta Software, Evaluation Product or the Not for Resale Software.
3. 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, to (i) install the software on the Authorized Servers;(ii) reproduce, distribute and install the number of copies of the Software on the workstations or individual computers of the Authorized Users or the Authorized Concurrent Users, as applicable; (iii) 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, for which You have paid the applicable License Fees. If You were invoiced in the European Union for the Software, You may use that Software in any of the European Union member states. You may allow Authorized Users to access and use the Software on Your behalf solely for Your internal business operations, 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 third party use of the Software complies with the terms of this EULA. 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 on the copy. If You upgrade or exchange the Software from a previous validly licensed version, You must cease use of the prior version of that Software. The Application Jukebox is intended for your own personal non-commercial use only. Application Jukebox 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; (ii) permit any use of or access to the Software 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 use 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) decompile, disassemble, reverse engineer, or otherwise alter the Software; (v) modify or create derivative works based upon the Software; (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; or (vii) alter or remove any copyright, patent, trade secret, proprietary or other legal notices, labels or marks on any Software.
(b) You acknowledge that the Software may include features that ensure that your use of the Software complies with the terms of this Agreement.
(c) You shall ensure that your Authorized Users and Authorized Concurrent Users, if any, comply with the terms of this Agreement applicable to their use of the Software.
(d) This license is limited to the version of the Software or
3.4 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 run.
3.5 Data Collection and Privacy.
3.6 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.
4. TITLE. No title to or ownership of the Software is transferred to you. Numecent 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, trade secrets.
5. SUPPORT SERVICES. Numecent does not provide any support for the Software under this EULA. You have no rights to any updates, upgrades or extensions or enhancements to the Software developed by Numecent unless you separately purchase Numecent support services.
6. TERMINATION. Numecent may terminate this EULA immediately upon notice if You fail to comply with any term 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. Any obligations to pay fees incurred prior to termination and Sections 1, 3, 4, 7 and 8 of this EULA shall survive termination for any reason.
7. LIMITED WARRANTY AND LIMITATION OF LIABILITY
7.1 Limited Warranty. Numecent warrants that (i) the physical media, if any, on which the Software is delivered will be free of defects in materials and workmanship; and (ii) that the Software will substantially conform to the functional description set forth in the standard Documentation accompanying the Software for a period of 90 days after the date of delivery of the Software License Key to You, provided that You implement all releases, enhancements and corrections previously offered to you by Numecent (“Warranty Period“). If the physical media is defective and is returned to Numecent within the Warranty Period, your exclusive remedy will be Numecent’s option to repair or replace the defective physical media. To return the defective physical media, send an email to email@example.com to request a return authorization number. If during the Warranty Period the Software does not substantially conform to the functional description set forth in the Documentation, your exclusive remedy will be that Numecent shall, at its sole option, correct the defects in the Software or refund the license fees You paid, if any, for the Software provided that (i) the Software has been properly installed and used at all times and in accordance with the Documentation; (ii) no modification, deletion or addition has been made to the Software by persons other than Numecent or its authorized representative; and (iii) Numecent receives written notice of the non-conformity within the Warranty Period. EXCEPT FOR THE PRECEDING EXPRESS LIMITED WARRANTY, TO THE MAXIMUM EXTENT MANDATED BY LAW, NUMECENT PROVIDES THE SOFTWARE WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER PROVISION OF THIS EULA OR COMMUNICATION WITH YOU, AND NUMECENT SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
7.2 LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT NEITHER NUMECENT NOR ITS AFFILIATES, OR AUTHORIZED RESELLERS SHALL BE LIABLE FOR ANY LOST PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA OR PRIVACY, THE COST OF RECOVERY OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, OR CONSE-QUEN¬TIAL DAMAGES ARISING FROM YOUR USE OF THE SOFTWARE OR SUPPORT OR DAMAGE ARISING FROM YOUR USE OF THIRD PARTY SOFTWARE OR HARDWARE UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE PRECEDING LIMITATION MAY NOT APPLY TO YOU. NUMECENT’S LIABILITY UNDER THIS EULA WILL NOT, IN ANY EVENT, EXCEED THE LICENSE FEES YOU PAID FOR THE SOFTWARE, IF ANY. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER NUMECENT HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
8.1 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.
8.2 Headings. Headings under this EULA are intended only for convenience and shall not affect the interpretation of this EULA.
8.3 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.
8.4 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.
8.5 Export Controls. The Software is of United States origin and is 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 for, and will not permit the Software 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.
8.6 U.S. Government Restricted Rights. 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.
8.7 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.
8.8 Open Source Notices. For notices relating to Open Source Software, view the licenses.txt file contained with this distrubution.
8.9 Contact Information. Please direct legal notices or other correspondence to Numecent, Inc., 15635 Alton Parkway, Irvine, California 92618, United States of America. If You have any questions concerning this EULA, please send an email to firstname.lastname@example.org.
8.10 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.
8.11 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 © 2013. Numecent Inc. All rights reserved. Numecent software products are protected by one or more US Patent Numbers.