FireGiant - End User License Agreement
CAREFULLY READ THIS SOFTWARE LICENSE AGREEMENT ("AGREEMENT"). BY DOWNLOADING THE SOFTWARE AND/OR CLICKING THE APPLICABLE BUTTON TO COMPLETE THE INSTALLATION PROCESS, OR BY OTHERWISE EXECUTING THE APPLICABLE QUOTE (DEFINED BELOW), YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT WISH TO BECOME A PARTY TO THIS AGREEMENT AND BE BOUND BY ITS TERMS AND CONDITIONS, DO NOT INSTALL OR USE THE SOFTWARE, AND RETURN THE SOFTWARE (WITH ALL ACCOMPANYING WRITTEN MATERIALS AND THEIR CONTAINERS) WITHIN THIRTY (30) DAYS OF RECEIPT. All returns to FireGiant, Inc. ("Licensor") will be subject to Licensor's then-current return policy. If you are accepting this Agreement on behalf of an entity, you agree and represent you have the authority to bind the entity to this Agreement, and references herein to "Licensee" shall mean such entity. "Quote" means the quotation or similar ordering document issued by Licensor to you for the purchase or use of the software (the "Licensed Software"), and which references, hyperlinks to, or otherwise incorporates by reference, this Agreement.
1.0 Grant of License. Subject to the terms and conditions of this Agreement and provided that the applicable license fees are paid in full, Licensor hereby grants to Licensee, and Licensee hereby accepts from Licensor, a limited, nonexclusive, nontransferable, right and license to use the Licensed Software and the related user manual (the "Documentation") by one user solely for the Licensee's own internal use. This Agreement does not grant Licensee any title or right of ownership in the Licensed Software or Documentation.
1.1 Licensee shall not use, copy, rent, lease, sell, modify, prepare derivative works or transfer the Licensed Software except as provided in this Agreement. Any such unauthorized use is void and shall result in immediate and automatic termination of this license.
1.2 Government End Users. If the Licensed Software is supplied to the United States Government, it shall be classified as "restricted computer software" as defined in clause 52.227-19 of the FAR. The United States Government's rights to the Software are as provided in clause 52.227-19 of the FAR. Source code is not supplied under this license.
1.3 Licensee acknowledges that the Licensed Software and the Documentation are subject to the export laws and regulations of the United States. These laws and regulations, among other things, prohibit or make subject to special controls the export or re-export of the Licensed Software or the Documentation to certain countries listed in Country Group E in Supplement No. 1 to Part 740 of the Export Administration Regulations (the "Regulations"), which countries are currently Cuba, Libya, Iran, Iraq, North Korea, Sudan, and Syria ("Prohibited Countries"), to certain persons and entities on the Denied Persons List contained in Supplement No. 2 to Part 764 of the Regulations and to certain Specially Designated Nationals and Blocked Persons listed by the U.S. Office of Foreign Assets Control (OFAC) (collectively "Prohibited Persons"). Accordingly, Licensee shall not, directly or indirectly, export, re-export, license, sell, give, loan, transfer, disclose or otherwise grant access to the Licensed Software or the Documentation to any Prohibited Country or Prohibited Person, to any foreign national of a Prohibited Country, to any person affiliated with a Prohibited Person, or to any person or entity outside Licensee's country without the express written consent of Licensor and without compliance with said export laws and regulations. These prohibitions shall apply whether said person or entity is a subsidiary, parent, sister company or other affiliate of Licensee.
2.0 License Grant for Installation Packages. Licensee may use the Licensed Software to create products (such products being referred to hereinafter as "Installation Packages"). These Installation Packages may be distributed, royalty free, provided the Licensed Software is incorporated into Installation Packages in a form that prevents further development of derivative works with the Licensed Software. If the Licensed Software is provided and/or labeled as a Trial release, you may not sell, assign, rent, transfer, distribute, or grant any rights in the Licensed Software or the accompanying documentation and may not sell, assign, rent, or grant any right to Installation Packages. You may distribute your Installation Packages only after purchasing a full license and upgrade your Trial version to a fully licensed version.
3.0 Additional License Grant and Terms. With respect to any executable program derived from the Licensed Software, Licensee and its Sublicensees may use any Licensed Software code that is part of the executable and that is necessary for the purpose of running such executable program. The parties recognize that there are a variety of laws, rules and regulations with which the Licensee must comply in creating Installation Packages for use by Sublicensees and that the Licensor has an interest in the Licensee's fully complying with all applicable laws, rules and regulations, and with certain policies established by the Licensor. The Licensee shall not deliver any Installation Package without having in place a sublicense with its customer(s) with respect to such Installation Packages (the "Sublicense"). Each Sublicense shall include at least the same license restrictions for use of the Licensed Software as are contained herein. The Licensee shall notify the Licensor as promptly as practicable if it becomes aware of any breach by a Sublicensee of the Sublicense provisions related to the Licensed Software. The Licensee shall terminate any Sublicense, effective within the 60 days described below, if the Sublicensee fails to cure any such breach of such Sublicense within 60 days of Licensor's notice to the Licensee to the effect that the Licensor requests such cure or such termination. The Licensee may have additional rights and obligations to the Licensed Software through special license types and license programs, as set forth in addenda to this Agreement and which are hereby incorporated into this Agreement. Additional product-specific provisions may be provided in specific addenda to this Agreement for the relevant product and the terms of which are hereby incorporated into this Agreement. To the extent of any conflict between such an addendum and the other terms set forth in this Agreement, the terms of the addendum will control.
4.0 Term. The licenses granted herein shall continue in perpetuity provided that Licensee continues to comply with the terms and conditions of this Agreement.
5.0 Warranty. If the Licensed Software is provided and/or labeled as a Preview release, the Licensed Software is provided AS IS, without warranty of any kind, express or implied. If the Licensed Software is an operational release, not provided or labeled as a Preview release, Licensor warrants that for a period of ninety (90) days after delivery of the Licensed Software to Licensee, it shall perform substantially in accordance with the Documentation. In the event of Software Error(s) which materially prevents the Licensed Software from operation pursuant to the Documentation during said warranty period, Licensee shall notify the Licensor thereof in a timely manner. Licensor will correct such Software Error(s) by one of the following:
5.1 Providing the Licensee with an updated program, or
5.2 Supplying the Licensee with a temporary by-pass routine and/or manual procedures for correcting the error(s).
5.3 The Warranty service provided pursuant to this section shall not apply to errors caused by equipment or operating system software malfunction, modifications to the Licensed Software by Licensee or third parties, improper installation, misuse, neglect, improper repair, maintenance or installation not performed by Licensor, or incorrect data or procedures that are not in accordance with the Documentation. Licensee shall reimburse Licensor for services provided in the correction of such errors at Licensor's then prevailing daily rate along with all reasonable out of pocket expenses incurred by Licensor. The Warranty shall be void if Licensee makes any alteration to the Licensed Software.
5.4 THE FOREGOING WARRANTY EXTENDS SOLELY TO LICENSEE AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR USE OR PURPOSE, WHICH ARE EXPRESSLY EXCLUDED.
6.0 Maintenance and Support. Licensee shall be entitled to receive, at no additional charge, updates to Licensed Software and correction of Software Errors for a period of one (1) year after delivery of the Licensed Software to Licensee. Thereafter, such services shall be subject to the existence of a paid annual maintenance agreement between Licensee and Licensor.
7.0 Intellectual Property Rights. Licensor warrants that, to the best of Licensor's knowledge, neither the Licensed Software nor the Documentation infringes the copyright(s) or trade secrets of any third party under United States law. Licensor represents that, to its actual, current knowledge, the Licensed Software does not infringe the United States patent(s) of any third party.
7.1 Licensor will at its expense defend against any claim, action or proceeding ("Action" herein) for infringement of copyright, patent or trade secret provided that Licensee immediately notifies Licensor in writing of such Action and cooperates fully with Licensor and its legal counsel in the defense. Licensor may in its discretion (i) contest, (ii) settle, (iii) procure for Licensee the right to continue using the Licensed Software, or (iv) modify or replace the Licensed Software so that it no longer infringes (as long as the functionality and performance described in the Documentation substantially remain following such modification or replacement.) Licensee may participate in the defense of such Action at its own expense. If Licensor concludes in its sole judgment that none of the foregoing options are commercially reasonable, and Licensee's use of the Licensed Software is enjoined as a result of a judgment of a court of competent jurisdiction in such Action, then (i) Licensor will return to Licensee a portion of the license fee(s) paid by Licensee under this Agreement, prorated over a period of three (3) years from delivery of the Licensed Software to Licensee.
7.2 Notwithstanding the above, Licensor shall have no duty under this section with respect to, and Licensee shall hold Licensor harmless from and against any claim, action or proceeding arising from or related to infringements (i) by third-party software or equipment, (ii) arising out of modifications to the Licensed Software and/or Documentation not made by Licensor, (iii) resulting from use of the Licensed Software to practice any method or process which does not occur wholly within the Licensed Software or (iv) resulting from modifications to the Licensed Software or Documentation prepared pursuant to Specifications or other material furnished by Licensee. This Section 7 states the entire obligation of Licensor regarding infringement of intellectual property rights, and it will survive the termination of this Agreement.
8.0 LIMITATION OF LIABILITY. LICENSOR SHALL NOT BE LIABLE TO LICENSEE FOR DAMAGES, WHETHER IN CONTRACT OR TORT, IN EXCESS OF THE LICENSE FEE PAID FOR THE LICENSED SOFTWARE, OR FOR ANY INCIDENTAL, OR CONSEQUENTIAL DAMAGES; INCLUDING, WITHOUT LIMITATION LOSS OF REVENUE OR PROFIT RESULTING FROM ANY FAILURE OF THE SYSTEM TO PERFORM AS WARRANTED, LOSS OF DATA, COST OF REPLACEMENT OF ITEMS DAMAGED OR INJURED BY THE LICENSED SOFTWARE, OR DAMAGES SUFFERED BY CUSTOMERS OF LICENSEE OR OTHER THIRD PARTIES.
9.0 Confidentiality. Licensee acknowledges that the Licensed Software, the Documentation, and the ideas, processes, methods of operation and implemented technology therein (the "Confidential Information") constitute the trade secrets and proprietary information of Licensor. Licensee shall hold the Confidential Information in strict confidence and shall not show or disclose it to any third parties. Without limiting the generality of the foregoing, Licensee shall use reasonable means, not less than those used to protect its own trade secret and proprietary information, to safeguard the Confidential Information. Licensee shall not attempt, or authorize or permit others to attempt learn the trade secrets in the Licensed Software, or to do error correction, by reproduction, decompilation, reverse assembly, or by otherwise reverse engineering the Licensed Software, except, if Licensee is subject to the EC Directive on the Legal Protection of Computer Software, as authorized by said Directive. Notwithstanding the foregoing, nothing in this provision shall be deemed to prevent a party from stating in its website, press releases, marketing presentations, or other media that a customer relationship exists between the parties. Such disclosure is specifically permitted under this Agreement provided that it is made in a truthful, business-like and non-derogatory manner.
10.0 Dispute Resolution. Any controversy or claim arising under or related to this Agreement shall be settled by binding arbitration under the Commercial Rules (or if Licensee is domiciled outside the United States, the International Rules) of the American Arbitration Association. The location of any such mediation and/or arbitration shall be San Diego, California, USA. The arbitrator shall be selected from the national technology panel of the American Arbitration Association. The arbitration shall be conducted in the English language. Any court having jurisdiction over the matter may enter a judgment upon the award of the arbitrator. Service of a petition to confirm the arbitration award may be made by United States Mail, postage prepaid, or by any regularly conducted commercial express mail service, to the attorney for the party or, if not so represented, to the party at the address set forth herein, or to the party's last known business address. The prevailing party in any action or proceeding shall be entitled to recover its reasonable attorney fees and its arbitration administrative fees and arbitrator fees.
11.0 Termination. Licensor may terminate these licenses on thirty (30) days written notice if any material term of this Agreement is violated by Licensee and such violation is not cured within such thirty (30) day period.
11.1 Upon termination of this license, Licensee shall return all copies of the Licensed Software and the documentation and permanently remove the Licensed Software from all computers, media, or other storage locations.
12.0 Force/Majeure. Neither party shall be liable for delays or failures of performance resulting from circumstances beyond their control, including without limitation, acts of God, transportation delays, riots, acts of war, government regulations superimposed after the date of this Agreement, communications line failures, or power failures.
13.0 General Terms. This Agreement and the Enterprise Support Agreement, if Licensee is a subscriber, represents the entire agreement between the parties hereto and a final expression of their agreements with respect to the licensing of the Licensed Software, and supersedes all prior written agreements, oral agreements, representations, understandings or negotiations with respect to the matters covered by this Agreement. If any term, provision, condition or covenant of this Agreement is held to be invalid, void or unenforceable, the rest of the Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated. No amendment to this Agreement shall be effective unless it is in writing and signed by an authorized officer of Licensor. No term or provision hereof shall be deemed waived and no breach excused unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to or waiver of a breach by the other, whether express or implied, shall not constitute a consent to, waiver of, or excuse for any other different or subsequent breach. Neither this Agreement nor any rights or obligations hereunder shall be assigned or otherwise transferred by Licensee without the prior written consent of Licensor. This Agreement shall be binding on and shall inure to the benefit of the heirs, executors, administrators, successors and assigns of the parties hereto, but nothing in this paragraph shall be construed as a consent to any assignment of this Agreement except as provided hereinabove. A facsimile of this Agreement and its exhibit(s) may be used as an original.
13.1 Except to the extent that this Agreement is governed by the laws of the United States, this Agreement shall be governed, interpreted and enforced in accordance with the laws of the State of California, USA, without regard to its conflicts of laws provisions, or the United Nations Convention on Contracts for the International Sale of Goods.
13.2 All notices required to be given under this Agreement shall be made in writing by (i) first-class mail, postage prepaid, certified, return receipt, (ii) by regularly scheduled overnight delivery, (iii) by facsimile followed immediately by first-class mail, or (iv) by personal delivery, to the address set forth herein, or such other address as provided in writing. Such notices shall be deemed given upon full compliance with one of the above procedures.