End user agreement for PowerBroker for Desktops Eval Version
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS PRODUCT. BY DOWNLOADING, INSTALLING OR USING THIS PRODUCT, YOU INDICATE YOUR ACCEPTANCE OF AND AGREEMENT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT DO NOT DOWNLOAD, INSTALL OR USE THIS PRODUCT.
This Software License Agreement (the “Agreement”) entered into as of [DATE] (the “Effective Date”) is made between BeyondTrust Software, Inc., with its principal place of business located at 2173 Salk Avenue Ste. 220, Carlsbad, California 92008 (“BeyondTrust”) (“BeyondTrust”) and [_____________], a [____________] corporation with its principal place of business located at [ADDRESS] (“Licensee”).
1. DEFINITION OF BEYONDTRUST PRODUCTS. For purposes of this Agreement, the “BeyondTrust Products” shall mean the BeyondTrust software product(s) (the “Software”) identified in Exhibit A, together with the related user manuals and other related documentation made available by BeyondTrust (“Documentation”). The Software is delivered on magnetic disk(s), compact disc(s) or Internet download(s) ("Media"), as set forth in Exhibit A or as otherwise determined by BeyondTrust.
2. LICENSE. Subject to the terms and conditions of this Agreement and Licensee’s payment of all applicable fees, BeyondTrust hereby grants Licensee a perpetual, revocable, nonexclusive, nontransferable, non-assignable (except as provided in Section 15.A) right and license in the Territory to install and use the Software (a) on the physical and virtual machine(s) located at the physical location(s) designated in Exhibit A, or (b) on the Managed User Objects and/or Managed Computer Objects set forth in Exhibit A, and to use the Documentation provided in connection therewith. Licensee’s use of the Software is limited to the number of licenses set forth in Exhibit A (the “Permitted Licenses”). If Licensee desires to use the BeyondTrust Products in excess of the Permitted Licenses or at another location, Licensee must first obtain the written consent of BeyondTrust, and pay the then-current Software license fee and transfer and/or upgrade charges. “Territory” means the [United States of America].
3. RESTRICTIONS. The BeyondTrust Products licensed to Licensee under this Agreement may only be used for Licensee’s internal business purposes. Licensee may not assign, sell, rent, lease, sublicense, lend, transfer, resell or distribute the BeyondTrust Products to any third party or use the BeyondTrust Products on behalf of any third party unless otherwise agreed upon by the parties in writing. Licensee agrees not to copy the BeyondTrust Products, in whole or in part, except for backup purposes, unless BeyondTrust consents in writing. You may make no more than one copy of the Software and Documentation for Your internal business purposes. Licensee agrees not to modify, obscure, or delete any proprietary rights notices included in or on the Software or Documentation and Licensee agrees to include all such notices on all copies. Licensee may not modify the BeyondTrust Products, make derivative works or merge the Software into any other computer programs. Licensee may not reverse engineer, disassemble or decompile the Software, in whole or in part or otherwise attempt to derive its source code. Licensee agrees to use the Software in compliance with all applicable laws, rules and regulations, including but not limited to United States and foreign export, re-export and import control laws and regulations such as the US Department of Commerce’s Export Administration Regulations, the US Treasury Department’s trade and economic sanctions regulations, and the US Department of State’s International Traffic in Arms Regulations.
4. TITLE. Licensee acknowledges that, as between Licensee and BeyondTrust, title and full ownership in and to the BeyondTrust Products and all trade secret, copyright and patent rights and all other intellectual property and proprietary rights in and to the BeyondTrust Products (including, without limitation any third-party software incorporated therein) remain with BeyondTrust, whether or not any portion thereof is or may be validly copyrighted or patented. Licensee is granted the limited license rights to use the BeyondTrust Products as described in this Agreement. Licensee agrees to treat the BeyondTrust Products as BeyondTrust's proprietary information. Licensee will take all reasonable steps to protect the BeyondTrust Products from disclosure to or use by any unauthorized third party. Use, duplication or disclosure by or on behalf of the United States Federal Government is subject to the restrictions set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software Clause of DFARS 227.7202-1 and in FAR Clause 52.227-19, or any superseding provisions.
5. TERM AND TERMINATION.
A. Term. This Agreement is effective as of the Effective Date and will continue until terminated as provided herein.
B. Termination by BeyondTrust. BeyondTrust may immediately terminate this Agreement if Licensee breaches any material term or condition of this Agreement; provided, however, that if any such breach is curable, BeyondTrust may terminate this Agreement if Licensee fails to cure such breach within 30 days of written notice to Licensee describing such breach.
C. Termination by Licensee. Licensee may immediately terminate this Agreement if BeyondTrust breaches any material term or condition of this Agreement; provided, however, that if any such breach is curable, Licensee may terminate this Agreement if BeyondTrust fails to cure such breach within 30 days of written notice to BeyondTrust describing such breach
D. Effect of Termination. Upon termination of this Agreement, Licensee will immediately return the Software and Documentation, together with all copies in any form and any other Confidential Information in its possession or control or certify to BeyondTrust in writing that the same has been destroyed. Any payment obligations as of the termination or expiration of this Agreement shall remain in effect. Those provisions of this Agreement that by their terms should survive any termination of this Agreement shall be deemed to survive and remain in full force and effect, including, but not limited to Sections 1, 3, 4, 7-11, and 14-15.
6. SUPPORT AND UPDATES. BeyondTrust will provide extended software support (“ESS”) for the Software for an initial period beginning on the Effective Date and ending one year thereafter (the “Initial ESS Period”), unless stated otherwise in Exhibit A. ESS will consist of (a) telephone hot-line support and Software error corrections and (b) any updates that BeyondTrust offers, when and if available, as part of ESS (which, for the avoidance of doubt, exclude enhancements that are separately offered by BeyondTrust). Following the Initial ESS Period, ESS shall automatically renew at BeyondTrust’s then-current rates and terms for subsequent one-year periods (each, a “Renewal ESS Period”) unless either party provides the other party with notice of its intent not to renew at least 60 days prior to the expiration of the then-current annual period. Cancellation of ESS will not terminate Licensee’s right to continue to use any BeyondTrust Product. ESS fees shall be invoiced and paid in advance of the applicable Renewal ESS Period and shall be subject to the payment requirements set forth in this Agreement. BeyondTrust’s sole obligation (and Licensee’s sole and exclusive remedy) in the event of a breach by BeyondTrust of this Section shall be to either correct or replace the affected BeyondTrust Products, re-perform the applicable Service, or, at BeyondTrust’s option, to refund a portion of the paid ESS fees based on the remaining length of the Initial ESS Period or Renewal ESS Period, as applicable.
7. PAYMENT. Licensee agrees to pay to BeyondTrust the license fees and ESS fees for the Initial ESS Period as set forth in Exhibit A. Licensee shall pay all amounts due to BeyondTrust in full within 30 days from the date of each invoice or such time (if any) stated in Exhibit A. Any undisputed amounts remaining unpaid following the payment due date, and all disputed payments that are paid following the resolution of such dispute, shall bear interest accruing from the original payment due date through the date that such amounts are paid at the lower interest rate of (a) 1.0% per month and (b) the highest interest rate allowed by law. For the avoidance of doubt, Licensee is solely responsible for all taxes, fees, duties and governmental assessments (except for taxes based on BeyondTrust’s net income) that are imposed or become due in connection with the subject matter of this Agreement.
8. WARRANTY AND DISCLAIMER.
A. Warranty. BeyondTrust represents, warrants and covenants to Licensee that (i) the BeyondTrust Products will not contain or transmit any computer code or other technology specifically designed to disrupt, disable, harm, or otherwise impede in any manner, any other software, hardware, computer system or network (sometimes referred to as “malware,” “viruses” or “worms”); (ii) the Media is and will be free from defects in materials and workmanship under normal use; and (iii) any services performed by BeyondTrust pursuant to this Agreement (the “Services”) will be performed in a good and workmanlike manner by appropriately qualified and trained personnel. If the Software, the Media or the Services (as applicable) fails to fulfill or is not in compliance with one or more of the warranties set forth in this Section 8(A), then Licensee shall inform BeyondTrust in writing and provide to BeyondTrust such information and materials as BeyondTrust may reasonably request to document and reproduce such noncompliance. Such information may include, if and to the extent applicable, a written explanation of the problem with the Software, the Media, the Services, or other noncompliance, as applicable, a written description of the operating environment. As Licensee’s sole and exclusive remedy, BeyondTrust shall, as applicable, modify the Software, replace the Software with other software offering comparable functionality, replace the defective Media or reperform the Services, in each case as may be necessary to cause the Software, the Media or the Services (as applicable) to comply with the warranties set forth in this Section 8(A). BeyondTrust shall have no responsibility if the Software has been altered in any way, if the Media has been damaged by misuse, accident, abuse, modification or misapplication, or if the failure arises out of use of the Software other than in a BeyondTrust recommended hardware configuration. Any such misuse, accident, abuse, modification or misapplication of the Software and/or Media will void the warranty above.
B. DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE BEYONDTRUST PRODUCTS ARE OFFERED “AS IS,” AND BEYONDTRUST GRANTS LICENSEE AND LICENSEE RECEIVES NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED OR OTHERWISE. BEYONDTRUST SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. BEYONDTRUST DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE OR THAT IT WILL FUNCTION OR OPERATE IN CONJUNCTION WITH ANY OTHER PRODUCT, SOFTWARE OR HARDWARE, OR THAT IT WILL NOT CAUSE ANY LOSS OR CORRUPTION OF DATA.
9. LIMITATION OF LIABILITY.
A. NO CONSEQUENTIAL DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BEYONDTRUST AND ITS LICENSORS WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING FOR THE INDIRECT LOSS OF PROFIT, REVENUE OR CONTENT) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING UNDER ANY CONTRACT, NEGLIGENCE OR OTHER TORT THEORY OF LIABILITY) EVEN IF BEYONDTRUST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
B. LIMITATION OF DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BEYONDTRUST’S AND ITS LICENSORS’ CUMULATIVE, AGGREGATE LIABILITY TO LICENSEE OR ANY OTHER PARTY FOR ANY DAMAGES SHALL NOT EXCEED THE FEES PAID BY LICENSEE TO BEYONDTRUST DURING THE 12 MONTHS PRECEDING THE CLAIM GIVING RISE TO SUCH LIABILITY.
C. EXCEPTIONS. The exclusions and limitations of liability in this Section 9 will not apply to (i) BeyondTrust’s breach of Section 10 (Indemnification) or to any amounts paid or payable in connection with such obligations and (ii) BeyondTrust’s breach of Section 11 (Confidentiality).
A. Indemnities. BeyondTrust agrees to defend and hold Licensee harmless from and against any third-party claim, action or proceeding (a “Claim”) that the BeyondTrust Products as made available to Licensee by BeyondTrust infringe any United States patent, copyright or trademark or misappropriates any trade secret. Licensee agrees to defend and hold BeyondTrust harmless from and against any Claim arising from or in connection with any breach of this Agreement by Licensee.
B. Procedure. The party requesting indemnification hereunder (the “Indemnified Party”) will (i) provide the other party (the “Indemnifying Party”) with prompt notice of any such Claim (provided, however, that failure to do so shall not relieve the Indemnifying Party of its indemnification obligations hereunder except to the extent of any material prejudice to the Indemnifying Party as a direct result of such failure); (ii) permit the Indemnifying Party to assume and control the defense of such action upon the Indemnifying Party’s written notice to the Indemnified Party of its intention to indemnify; and (iii) upon the Indemnifying Party’s written request, provide to the Indemnifying Party all available information and assistance reasonably necessary for the Indemnifying Party to defend such Claim. The Indemnified Party shall have the right, at its sole cost and expense, to participate in the defense and settlement of any such Claim with counsel of its choice. Notwithstanding the foregoing, BeyondTrust shall have no obligation to indemnify Licensee to the extent that any Claim arises from (a) Licensee’s use of the BeyondTrust Products in contravention of this Agreement or the Documentation; (b) the combination or use of the BeyondTrust Products with any other services, technology, content or material that were neither (x) provided by BeyondTrust, nor (y) specified by BeyondTrust for use with the BeyondTrust Products as contemplated by this Agreement; (c) modification of the BeyondTrust Products; or (d) Licensee’s use of the BeyondTrust Products after Licensee reasonably could have implemented a non-infringing alternative pursuant to Section 10(C)(ii) or (iii).
C. Right to Ameliorate Damages. In the event that a court of competent jurisdiction determines or in the event that BeyondTrust, in its sole discretion, reasonably determines, that the BeyondTrust Products, or any portion thereof, infringes or misappropriates, or may infringe or misappropriate, any third-party intellectual property right, BeyondTrust shall, as Licensee’s sole and exclusive remedy (but without limitation of BeyondTrust’s indemnification obligations under Section 10(A)), and at BeyondTrust’s sole discretion, either: (i) obtain a license, at reasonable cost, for Licensee to continue using the BeyondTrust Products, or portion thereof; (ii) modify the BeyondTrust Products while retaining substantively equivalent functionality; (iii) replace the affected BeyondTrust Products with functionally equivalent software or services; or (iv) terminate this license in whole or in part (in which event, Licensee shall immediately terminate use of such BeyondTrust Products and the provisions of Section 6 will apply).
11. CONFIDENTIALITY. Each party (a “Receiving Party”) understands that the other party (the “Disclosing Party”) may disclose information of a confidential nature including, without limitation, the BeyondTrust Products, product information, data, pricing, financial information, end user information, software, specifications, research and development and proprietary algorithms or other materials that is (a) clearly and conspicuously marked as “confidential” or with a similar designation or (b) is disclosed in a manner in which the Disclosing Party reasonably communicated, or the Receiving Party should reasonably have understood under the circumstances, that the disclosure should be treated as confidential, whether or not the specific designation “confidential” or any similar designation is used (“Confidential Information”). The terms and conditions of this Agreement also constitute Confidential Information of each party. The Receiving Party agrees, for itself and its agents and employees, that it will not publish, disclose or otherwise divulge or use for its own purposes (other than as expressly permitted under this Agreement) any Confidential Information of the Disclosing Party furnished to it by such Disclosing Party without the prior written approval of the Disclosing Party in each instance. Each party will use at least the same level of care to maintain the Confidential Information of the other party as it uses to maintain the confidentiality of its own non-public information, and in no event less than a reasonable degree of care. The foregoing obligations shall not extend to any information to the extent that the Receiving Party can demonstrate that such information (i) was at the time of disclosure or, to the extent that such information thereafter becomes through no fault of the Receiving Party, a part of the public domain by publication or otherwise; (ii) was already properly and lawfully in the Receiving Party’s possession at the time it was received by the Receiving Party free from any obligation of confidentiality, (iii) was lawfully received by the Receiving Party from a third party who was under no obligation of confidentiality to the Disclosing Party with respect thereto, or (iv) was independently developed by the Receiving Party or its independent contractors who did not have access to the Disclosing Party’s Confidential Information. In the event that the Receiving Party is required to disclose Confidential Information in accordance with a judicial or governmental order or requirement, the Receiving Party shall promptly notify the Disclosing Party in order to allow such party to contest the order or requirement or seek confidential treatment for such information.
12. MARKETING. BeyondTrust may use Your company name and/or logo for the sole purpose of indicating the existence of a customer relationship between You and BeyondTrust. Any other use of your name or logo will require Your prior written consent, which is not to be unreasonably withheld.
13. USAGE VERIFICATION. BeyondTrust may request annually a certified report detailing Your installation and usage of the BeyondTrust Products, including whether or not You have exceeded the Permitted Licenses. You agree to provide such report promptly following BeyondTrust’s request. Without limitation of any of BeyondTrust's other rights and remedies, any use of BeyondTrust Products in excess the Permitted Licenses is subject to additional license and ESS fees pursuant to Section 2 of this Agreement. Should You not provide BeyondTrust with this report within thirty (30) days of its request, then you agree to pay BeyondTrust a processing fee (defined as two percent (2%) of the additional license and ESS fees) for each month outstanding.
14. GOVERNING LAW; ARBITRATION. This Agreement is to be governed by and interpreted in accordance with the laws of the State of California, U.S.A., without giving effect to its principles of conflict of laws. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Transactions Act shall not apply to this Agreement. Any action or proceeding arising out of or relating to this Agreement shall be resolved by arbitration in the County of Los Angeles, California in accordance with the Commercial Dispute Resolution Procedures of the American Arbitration Association and, in the event either party seeks injunctive or provisional relief, the Optional Rules for Emergency Measures of Protection. The arbitration will be heard and determined by a single arbitrator experienced in the software industry. The arbitrator’s decision in any such arbitration will be final and binding upon the parties and may be enforced in any court of competent jurisdiction. The prevailing party will be entitled to recover its attorneys’ fees and arbitration costs from the other party. The parties agree that the arbitration will be kept confidential and that the existence of the proceeding and any element of it (including, but not limited to, any pleadings, briefs or other documents submitted or exchanged and any testimony or other oral submissions and awards) will not be disclosed beyond the arbitration panel, except as may lawfully be required in judicial proceedings relating to the arbitration or by disclosure rules and regulations of securities regulatory authorities or other governmental agencies. Notwithstanding the foregoing, Licensee acknowledges and agrees that in the event of a breach by Licensee of Sections 2, 3, 4 or 11 of this Agreement, BeyondTrust, without limitation of its other rights and remedies, shall be entitled to seek immediate injunctive relief in any court of competent jurisdiction.
A. ASSIGNMENT. This Agreement may not be assigned, transferred, delegated, sold or otherwise disposed of, including, without limitation, by operation of law, without the prior written consent of the non-assigning party; provided that either party may assign this Agreement without consent in connection with the sale of all or substantially all its assets.
B. SEVERABILITY. Each provision of this Agreement shall be viewed as separate and distinct, and in the event that any provision shall be deemed by a court of competent jurisdiction to be illegal, invalid or unenforceable, the court finding such illegality, invalidity or unenforceability shall modify or reform this Agreement to give as much effect as possible to such provision. Any provision which cannot be so modified or reformed shall be deleted and the remaining provisions of this Agreement shall continue in full force and effect.
C. NOTICES: All notices provided hereunder shall be in writing, delivered personally or sent by overnight courier, registered or certified mail to the addresses set forth in Exhibit A to this Agreement or such other address as may be specified in writing by notice given in accordance with this Section. All such notices shall be deemed to have been given: (i) upon receipt when delivered personally or (ii) upon verification of receipt via overnight courier, registered or certified mail.
D. WAIVER. Performance of any obligations required by a party hereunder may be waived only by a written waiver signed by an authorized representative of the other party, which waiver shall be effective only with respect to the specific obligation described herein. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
E. FORCE MAJEURE: Each party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or services as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, acts of war, epidemics, communication line failure and power failures. Nothing in the foregoing shall be deemed to relieve Licensee of Licensee’s obligation to pay any and all fees owed to BeyondTrust under this Agreement.
F. INDEPENDENT CONTRACTORS. It is the intention of BeyondTrust and Licensee that BeyondTrust and Licensee are, and will be deemed to be, independent contractors with respect to the subject matter of this Agreement, and nothing contained in this Agreement will be deemed or construed in any manner whatsoever as creating any partnership, joint venture, employment, agency, fiduciary or other similar relationship between BeyondTrust and Licensee.
G. ENTIRE AGREEMENT. This Agreement is intended by the parties as the final expression of their agreement with respect to the subject matter hereof and may not be contradicted by evidence of any prior or contemporaneous agreement unless such agreement is signed by both parties. This Agreement may only be modified or amended pursuant to a written agreement or instrument signed by each party.
H. HEADINGS; COUNTERPARTS. Headings are for convenience only and are not deemed to be part of this Agreement. This Agreement may be entered into in separate counterparts, each of which when so executed will be deemed an original and taken together will constitute one fully executed Agreement.