End user agreement for Desktop Authority Express
END USER LICENSE AGREEMENT
READ THE TERMS OF THIS LICENSE AGREEMENT (THE "AGREEMENT") CAREFULLY BEFORE DOWNLOADING OR INSTALLING THE SOFTWARE (TOGETHER WITH, WHERE APPLICABLE, ASSOCIATED DATABASES, DATA SERVICES AND CERTAIN ADDITIONAL SOFTWARE FUNCTIONALITY, COLLECTIVELY THE "SOFTWARE").
THE LICENSE GRANTED TO YOU IN THIS AGREEMENT ARE CONDITIONED UPON YOUR ACCEPTANCE AND ASSENT TO ALL OF THE TERMS IN THIS AGREEMENT.
IF YOU ARE NOT WILLING OR AUTHORIZED TO BE BOUND BY THESE TERMS, DO NOT DOWNLOAD OR INSTALL THE SOFTWARE.
This Agreement is between ‘you’ (the entity or individual entering into this Agreement) and ScriptLogic Corporation, a Delaware corporation ("ScriptLogic”). This Software is licensed and is not sold.
TRIAL EVALUATION TERMS. If you download or install the Software without purchasing a license to the Software for a fee, ScriptLogic grants you a ONE TIME, non-transferable, non-exclusive license to operate the Software (including, where applicable, a limited time right to access Subscription Services as defined below) solely to decide if you want to acquire a license for a fee (collectively a "Trial License”), during a trial-period of up to 30 days (or such other Trial Period as may be currently specified on ScriptLogic's web site) ("Trial Period"). You may not use the Software in a production environment or for any commercial services or benefit. Multiple trial periods by you or your company are prohibited. If you use the Software in any way in violation of the terms of this Trial License, ScriptLogic may charge you fees for licenses you use.
LICENSE. Subject to the other terms of this Agreement, including without limitation the payment of the applicable license fees, ScriptLogic grants you, under an order, a non-exclusive, perpetual (unless a limited term license is provided for on the order or on the product website), non-transferable license up to the license capacity acquired to:
(a) operate the Software in object code form only in your business operations; and
(b) make one copy of the Software for archival and backup purposes (collectively the "License").
RESTRICTIONS. Without the prior written consent of ScriptLogic, YOU MAY NOT:
(a) assign, sublicense, rent or lease the Software or use it in any type of software service provider or outsourcing environment;
(b) cause or permit reverse engineering (except to the extent expressly permitted by applicable law despite this limitation), decompile, disassemble, modify, translate, make any attempt to discover the source code of the Software or create derivative works from the Software; or
(c) evaluate or use, or facilitate the evaluation or use, of the Software for the purpose of competing with ScriptLogic in any manner.
You are entitled only to those rights with respect to the Software as are expressly granted by this Agreement.
TERM. ScriptLogic may terminate this Agreement upon a breach by you of any term. Upon any termination of this Agreement or any license, you agree to immediately discontinue any use of the Software, de-install it and to destroy the Software and copies of associated databases (if any), and any copies, within 5 days. Upon ScriptLogic's request, you will provide written certification of such compliance.
PAYMENTS AND DELIVERY. You will pay each License fee and Support fee within 30 days of the invoice date. You will pay, or reimburse, ScriptLogic or when required by law the appropriate governmental agency for taxes of any kind, including sales, use, VAT, excise, customs duties, withholding, property, and other similar taxes (other than taxes based on ScriptLogic’s net income) imposed in connection with the License and the Support fees which are exclusive of these taxes. The unpaid balance of each late payment bears interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law. The Software is accepted by you on the date of the order.
PROPRIETARY RIGHTS AND CONFIDENTIALITY. ScriptLogic or its licensors retain all right, title and interest to the Software and all related intellectual property and proprietary rights. The Software is protected by applicable copyright, trade secret, industrial and other intellectual property laws. You may not remove any product identification, copyright, trademark or other notice from the Software. ScriptLogic reserves any rights not expressly granted to you. "Confidential Information” means all proprietary or confidential information that is disclosed to the recipient ("Recipient") by the discloser ("Discloser"), and includes, among other things (i) any and all information relating to products or services provided by a Discloser, its financial information, software code, flow charts, techniques, specifications, development and marketing plans, strategies, and forecasts; (ii) as to ScriptLogic, and its licensors, the Software; and (iii) the terms of this Agreement, including without limitation, Software pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient's possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; (d) is independently developed by or for Recipient without use of the Confidential Information; or (e) is required to be disclosed by applicable law or court order. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement.
YOU ACKNOWLEDGE THAT ANY MISUSE OR THREATENED MISUSE OF THE SOFTWARE WILL CAUSE IMMEDIATELY IRREPARABLE HARM TO SCRIPTLOGIC FOR WHICH THERE IS NO ADEQUATE REMEDY AT LAW. ACCORDINGLY, YOU AGREE THAT SCRIPTLOGIC IS ENTITLED TO IMMEDIATE AND PERMANENT INJUNCTIVE RELIEF FROM A COURT OF COMPETENT JURISDICTION IN THE EVENT OF SUCH BREACH OR THREATENED BREACH.
SOFTWARE PERFORMANCE WARRANTY. Except for a Trial License, ScriptLogic warrants that the Software will perform in substantial accordance with its accompanying product documentation for a period of 90 days from the date of the order. This warranty will not apply to any problems caused by software other than the Software, hardware not supplied by ScriptLogic, use other than in accordance with the product documentation, or misuse of the Software.
LIMITED REMEDIES. SCRIPTLOGIC’S ENTIRE LIABILITY, AND YOUR EXCLUSIVE REMEDY, FOR BREACH OF THE ABOVE WARRANTY IS LIMITED TO: SCRIPTLOGIC’S USE OF COMMERCIALLY REASONABLE EFFORTS TO REMEDY DEFECTS COVERED BY THE WARRANTY OR REPLACEMENT OF THE DEFECTIVE SOFTWARE WITHIN A REASONABLE PERIOD OF TIME, OR IF SCRIPTLOGIC CANNOT REMEDY OR REPLACE SUCH DEFECTIVE SOFTWARE WITHIN SUCH TIME PERIOD, THEN SCRIPTLOGIC WILL REFUND THE AMOUNT PAID BY YOU FOR THE LICENSE FOR THAT SOFTWARE. SCRIPTLOGIC’S OBLIGATIONS IN THIS SECTION ARE CONDITIONED UPON YOU PROVIDING SCRIPTLOGIC WRITTEN NOTICE OF THE CLAIM DURING THE WARRANTY PERIOD AND FULL COOPERATION AND ACCESS TO THE SOFTWARE IN RESOLVING ANY CLAIM.
ANNUAL SUPPORT. You may acquire ScriptLogic’s annual technical support and maintenance services ("Support") on an order. For perpetual licenses, (unless the website states differently for a particular product), the first year of Support is included in the license fee. Once Support is acquired for Software, Support is provided under ScriptLogic’s Support policies then in effect. Either party may terminate Support upon at least 30 days written notice prior to the next Support anniversary date. ScriptLogic may change its Support terms, to be effective upon your support anniversary date, at any time in its sole discretion. ScriptLogic reserves the right to discontinue Support for Software where ScriptLogic generally discontinues such services to all licensees of that Software. If you terminate Support and then re-enroll in Support, ScriptLogic may charge you a reinstatement fee. Support fees are due in advance. More information on our Support terms is located at www.scriptlogic.com/terms
DISCLAIMER OF DAMAGES. SCRIPTLOGIC IS NOT LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT, SUPPORT, THE SOFTWARE (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW.
LIMITS ON LIABILITY. EXCEPT IN THE CASE OF INFRINGEMENT, SCRIPTLOGIC’S TOTAL LIABILITY FOR DAMAGES OF ANY KIND IS LIMITED TO THE AMOUNT PAID FOR THE LICENSE TO THE APPLICABLE SOFTWARE GIVING RISE TO SUCH DAMAGES.
U.S. GOVERNMENT RESTRICTED RIGHTS. The Software and documentation are provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the U.S. government or any agency thereof is subject to restrictions as set forth in subparagraph (c)(I)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software Restricted Rights at 48 C.F.R. 52.227-19, as applicable. Contractor/manufacturer is ScriptLogic Corporation, 6000 Broken Sound Parkway, Boca Raton, FL 33487.
GOVERNING LAW and ARBITRATION. THIS AGREEMENT IS GOVERNED BY THE STATE OF FLORIDA, USA SUBSTANTIVE LAWS, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY. ANY DISPUTE BETWEEN YOU AND SCRIPTLOGIC ARISING OUT OF THIS AGREEMENT OR THE BREACH OR ALLEGED BREACH, MUST BE DETERMINED BY BINDING ARBITRATION CONDUCTED IN ENGLISH. THE ARBITRATION SHALL BE HELD IN BOCA RATON, FLORIDA, U.S.A., UNDER THE CURRENT COMMERCIAL OR INTERNATIONAL, AS APPLICABLE, RULES OF THE AMERICAN ARBITRATION ASSOCIATION. THE COSTS OF THE ARBITRATION WILL BE PAID EQUALLY PENDING THE ARBITRATOR'S AWARD. THE AWARD RENDERED SHALL BE FINAL AND BINDING, AND MAY BE ENFORCED IN ANY COURT OF COMPETENT JURISDICTION. NOTHING IN THIS AGREEMENT IS DEEMED AS PREVENTING EITHER PARTY FROM SEEKING INJUNCTIVE RELIEF FROM ANY COURT HAVING JURISDICTION OVER THE PARTIES AND THE SUBJECT MATTER OF THE DISPUTE AS NECESSARY TO PROTECT EITHER PARTY'S CONFIDENTIAL INFORMATION, OWNERSHIP, OR ANY OTHER PROPRIETARY RIGHTS. ALL ARBITRATION PROCEEDINGS SHALL BE CONDUCTED IN CONFIDENCE, AND THE PARTY PREVAILING IN ARBITRATION SHALL BE ENTITLED TO RECOVER ITS REASONABLE ATTORNEYS' FEES AND COSTS INCURRED, FROM THE OTHER PARTY.
EXPORT LAWS. You agree not to import, export, re-export, or transfer, directly or indirectly, any part of the Software or any underlying information or technology except in full compliance with all United States, foreign and other applicable laws and regulations.
AUDIT. ScriptLogic, or its representative, may audit your usage of the Software at any of your facilities. ScriptLogic may make copies of any information as part of the audit, and you will cooperate with such audit. You agree to pay within 30 days of written notification any fees applicable to your use of the Software in excess of your License. ScriptLogic is responsible for its costs associated with the audit, except that you will be responsible for such costs if you exceed the License capacity by more than 5 percent. You agree that ScriptLogic is not responsible for any of your costs incurred in cooperating with the audit.
MISCELLANEOUS. ScriptLogic is not liable for its failure to perform any obligation under this Agreement during any period in which performance is delayed by circumstances beyond ScriptLogic’s reasonable control. A waiver by a party of any breach of any term of this Agreement will not be construed as a waiver of any continuing or succeeding breach. You may not assign or transfer this Agreement or a License to a third party, whether by merger or otherwise. Should any term of this Agreement be invalid or unenforceable, the remaining terms will remain in effect. ScriptLogic rejects all additional or conflicting terms of your form purchasing document. The parties acknowledge they have read this Agreement and agree that it, and the order, are the complete and exclusive statement of the agreement and supersedes any prior or contemporaneous negotiations or agreements, between the parties relating to this subject matter. This Agreement may not be modified except in writing executed by both parties. Neither of us is responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of nature, such as hurricane or tornado; electrical, internet, or telecommunication outage that is not caused by the obligated party; or other event outside the reasonable control of the obligated party. The parties have agreed that this Agreement and the documents related thereto be drawn up in the English language. Les parties exigent que la présente convention ainsi que les documents qui s'y rattachent soient rédigés en anglais.
Should you have any questions concerning this Agreement, or if you desire to contact ScriptLogic, please contact: ScriptLogic Customer Sales and Service, 6000 Broken Sound Parkway, Boca Raton, FL 33487, United States of America or at www.scriptlogic.com
Product Licensing Terms: The following additional terms apply to the products below:
1) Desktop Authority® “Seat” means each computer or terminal server session that is managed or administered by Desktop Authority.
You may not (a) reverse engineer, decompile, disassemble, modify, translate, or distribute the patch management and anti-spy ware databases distributed and updated by ScriptLogic, or (b) access, use, attempt to access or use the Subscription Services made available by ScriptLogic as part of Software (where applicable) in any manner, other than as part of Software use and configuration as provided for by ScriptLogic.
The License granted in Section 2 above addresses only your rights to use the Software applications and does not grant rights to access associated databases, data services and additional software functionality ("Subscription Services") made available separately by ScriptLogic under a Subscription Plan.
A "Subscription Plan" means an opportunity to purchase access to Subscription Services on a subscription basis, through your purchase of applicable ScriptLogic service subscription and maintenance programs. Where the Software you license under this Agreement includes the option to access Subscription Services, the Software will make queries to ScriptLogic servers remotely to determine your payment status. Termination or expiration of the applicable Subscription Plans also terminates and revokes your right to continue accessing or using the Subscription Services.
2) Enterprise Security Reporter® Enterprise Security Reporter is licensed on a “named computer” basis. A separate license must be acquired for each computer that will be discovered. The license may not be moved to another computer.
3) Secure Copy(TM) Secure Copy is licensed on a “named server” basis. A separate license must be acquired for each computer, whether it will be a source or destination. The license may not be moved to another source or destination computer.
Ver: May 10, 2006