MASTER SOFTWARE LICENSE AGREEMENT – ON-PREMISE PRODUCTS
READ CAREFULLY! This is a legal agreement between you (either an individual or a single entity) and Faronics Corporation ('Faronics'). It concerns the Product identified below including the object code version of the software of the Product.
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, do not use the Product; to do so would violate national and international copyright and intellectual property laws. Instead, either destroy the software or contact us to arrange for return and refund.
LICENSE GRANT: Faronics hereby grants Licensee a limited, non-exclusive license to install, use, access, display, run, or otherwise interact with (collectively, 'Use') the Licensed Software identified above, in object code, as well as (to the extent included with such Licensed Software as determined by Faronics) all associated printed materials; 'online' or electronic documentation; software updates; add-on components; web services and/or supplements, all as provided by Faronics in accordance with this agreement and any separate license agreement applicable thereto (collectively with the Licensed Software, the 'Product') in accordance with and subject to the terms of this agreement. Licensee may Use the Products on a number of computers that does not exceed the number set out across from the heading ÔNumber of Licenses' above, for Licensee's own use and only in accordance with the technical specification and other documentation generally made available with the Product, if any. In no circumstances will Licensee be permitted to Use the Product on a number of computers exceeding the number set out across from the heading ÔNumber of Licenses' above. Additionally, Licensee may make one copy of the software component of the Product, to be held as a back-up copy and only to be Used by Licensee in the event of the loss of the copy then in Use. All other rights are expressly reserved by Faronics.
TERM OF LICENSE: Licensee's right to use each Product is limited to the term for such Product set out above. If the license purchased for a Product is not a perpetual one, then immediately upon expiration of the term of the license Licensee's right to use the Product will automatically terminate and the Product will be disabled and cease to function.
EXCLUSION: Licensee specifically acknowledges and agrees that the rights granted hereunder do not include the right of access and use to Faronics' cloud based services, including without limitation Deep Freeze On Demand in the Deep Freeze Cloud and Deep Freeze in the Deep Freeze Cloud.
REPRESENTATIONS OF LICENSEE: Licensee represents that it has obtained all necessary consent and authority for the importation and use of the Product in the jurisdiction in which Licensee intends to Use the Product.
LIMITATIONS ON USE: The Product is licensed as a single product and its component parts may not be separated for use on more than one computer. The rights granted hereunder are personal to Licensee. Neither the Product nor the rights granted hereunder may be resold, sub-licensed, assigned, leased, lent, or rented, whether for value or otherwise. The Product may not be Used as part of a time-share, hosting or service bureau arrangement, or for the provision of any other services or for any other like purposes. Licensee may not modify, copy (except as explicitly permitted in this agreement), reverse engineer, decompile or disassemble the Product or attempt to reconstruct or discover or access any source code, underlying ideas, algorithms, files formats or programming interfaces of the Product by any means whatsoever (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions, and then only with prior written notice to Faronics). The Product may not be used to create derivative works or to offer services derived from the Product. Licensee may not permit third parties to benefit from the use or functionality of the Product, except as and only to the extent explicitly permitted by this agreement. Licensee may not use the Product in such a way to willfully permit third parties to abuse the services to create derivative technologies or services. The proprietary rights legends and any other notices contained on and in the Product must not be removed. Licensee may not submit for testing or reviewing, or publicly disseminate performance information or analysis (including benchmarks) from any source relating to the Product. In addition, Licensee may not allow any third party to do any of the foregoing.
INTELLECTUAL PROPERTY RIGHTS: Faronics and its licensors are the owners of and retain all title to and interest in all proprietary and intellectual property rights, including patents, copyrights, trade secrets, trade-marks and know-how protected both by United States and Canadian copyright laws, and under the provisions of international treaties, in and to the Product and all copies, modifications and derivative works thereof. Copying of the Product, other than as explicitly permitted herein, constitutes an infringement of Faronics' intellectual property rights. Licensee acknowledges the foregoing and agrees that it has no right, title or interest in the Product, except as specifically set forth herein, and that Licensee has no rights in any trade-marks of Faronics. Licensee further acknowledges that it is obtaining only a limited license right to the Product and that irrespective of any use of the words 'purchase', 'sale' or like terms hereunder no ownership rights are being conveyed to Licensee under this agreement or otherwise. Any supplemental software code, documentation or other material provided to Licensee hereunder will be included in the definition of Product and subject to the provisions of this agreement. If Licensee provides technical information to Faronics pursuant to the delivery of Limited Support or Maintenance, Faronics may use this information for its business purposes, including Product support and development; however, such information will not be used in a way that identifies Licensee.
CONFIDENTIALITY: Licensee acknowledges that it may obtain information relating to the Products and services that Faronics or its suppliers provide, including code, technology, know-how, ideas, algorithms, testing procedure, structure, interfaces, specifications, documentation bugs, problems reports, analysis and performance information, and may obtain other technical, business and product information and data of Faronics or its affiliates or those with whom each of them conducts business (collectively, the 'Confidential Information'). Licensee will not disclose any Confidential Information to any third party or use Confidential Information for any purpose other than as strictly necessary to Use the Product as licensed under this agreement.
THIRD PARTY COMPONENTS: The Bitdefender SDK, used in Faronics' Anti-Virus product, is © 1997 to present. The Products may, now or later, contain third party components that require notices or additional terms and conditions. Those notices or additional terms and conditions are or will be located on Faronic's website at www.faronics.com and are incorporated by reference into this Agreement. Any other third party components used in the Products are owned by the licensors thereof.
LIMITED SUPPORT SERVICES: Faronics will only provide unlimited toll free telephone and email support if Maintenance is purchased as set out below, and will only provide such support during the term for which Maintenance is purchased. However, if Maintenance has not been purchased, Faronics may at its sole discretion elect to provide Licensee with limited support services related to the Product for such period of time as Faronics at its sole discretion elects ('Limited Support'). Licensee acknowledges that Faronics may cease to provide the Limited Support at any time and from time to time and that Faronics is not and will not at any time be obligated to provide the Limited Support. Use of Limited Support is governed by Faronics' policies and programs described in the user manual from time to time, in 'online' documentation, and/or in other materials that Faronics may provide from time to time.
MAINTENANCE SERVICES & SOFTWARE UPDATES: From the Maintenance Start Date to the Maintenance End Date as set out above, Licensee is entitled to receive the following additional services (collectively, 'Maintenance') provided that Licensee has paid to Faronics all amounts owing to it for such Maintenance and Licensee is not otherwise in breach of the terms of this agreement: (a) Licensee is eligible to receive, free of charge, all updates for the software component of the Product that Faronics at its sole discretion elects to make generally available. For clarity, Faronics does not warrant or represent that it will commercially release any updates, including version updates, during the term of this agreement; (b) Licensee is entitled to upgrade to such new product as Faronics may at its sole discretion offer from time to time at a discounted price. Any discounts offered will be at the sole discretion of Faronics. For clarity, Faronics does not warrant or represent that it will commercially release any new products during the term of this agreement; and (c) Licensee is entitled to unlimited toll free telephone and email support for the software component of the Product. Licensee acknowledges that it does not have the right to require Faronics to correct or resolve specific problems with the Products.
BETA TESTING: Beta versions of the Products may be provided to Licensee. If and to the extent such beta versions are provided to Licensee, they are provided without warranty of any kind, "AS IS" and subject to the confidentiality obligations above. Such provision is done only for the purpose of assisting Faronics with testing functionality or compatibility and on the express condition that Licensee provides Faronics with truthful, accurate and complete feedback, comments, and analysis in whatever format Licensee may wish ("Contribution"). Licensee expressly acknowledges that Licensee's participation in any beta testing is undertaken by Licensee on a volunteer basis and that Licensee will have no right in the beta Products or Contribution, whether in original form (as provided to Licensee) or in respect of any derivative work (whether or not based upon, in whole or in part, on any participation or feedback Licensee may make). Notwithstanding the foregoing, Licensee agrees to grant to Faronics a royalty–free, perpetual, transferable license to commercially use and sub-license in Faronics' sole discretion, any and all Contributions.
NOT SPAM: By accepting these terms, in accordance with Canada's Anti-SPAM legislation ('CASL'), if applicable, Licensee has expressly consented to the installation and acceptance of the Product as well as all updates to the Product. Licensee agrees that Faronics has satisfied any consent requirements pursuant to CASL. Licensee confirms that Licensee is entitled to receive updates or upgrades of the Product under the terms of the express consent and the update or upgrade of the Product is installed in accordance with those terms. Licensee further agrees that as long as it is using the Products, or has the Licensed Software installed, it has an 'existing business relationship' as it is defined in CASL.
RECORDS AND AUDIT: Licensee agrees to maintain complete and accurate records relating to its use of the Product and its other obligations hereunder for so long as Licensee is using the Product. If requested, Licensee will certify in writing that Licensee is using the Product on the number of computers, with the number of copies, and otherwise in accordance with the restrictions set out in this agreement or in any documentation generally made available with the Product. Licensee will permit Faronics or Faronics' representatives to audit Licensee's use of the Product at least semi- annually and to inspect (and make copies of) all relevant records in order to determine whether Licensee is complying with this agreement.
TERMINATION: Without prejudice to any other rights, Faronics may terminate this agreement (a) if Licensee defaults under any of its payment obligations (including for Maintenance) and such default continues for 5 days after receiving written notice of such default from Faronics; (b) if Licensee defaults under any of its other obligations and such default continues for 15 days after receiving written notice of such default from Faronics; (c) if any resolution is passed or order made or other steps taken for Licensee's bankruptcy, insolvency, liquidation, winding up or other termination of existence; or (d) at any time for any reason effectively immediately on written notice to Licensee. If Faronics terminates this agreement, then: (x) all rights granted hereunder (including any rights to use the Product and to receive any services) will immediately terminate; (y) Licensee agrees to immediately destroy all copies of the Product and remove Product from its systems (and certify to Faronics that Licensee has done so); and (z) Licensee will pay all amounts due and payable to Faronics prior to such termination and will not be entitled to any refund of fees whatsoever. Notwithstanding the foregoing, if Licensee has licensed any Product on a perpetual basis those licenses only (but not any services) will survive Faronics' termination of this agreement and Licensee does not have to destroy all copies of or remove such Product from its systems.
NO WARRANTIES: To the maximum extent permitted by law, the Product as well as Limited Support, Maintenance and all other services provided by Faronics or its licensors are provided 'as is' and 'with all faults' without warranty of any kind, either express, implied or statutory, and Faronics and its licensors disclaim all such warranties, including but not limited to implied warranties of merchantability, fitness for a particular purpose, non-interference, accuracy of data, accuracy of informational content, system integration, title and non-infringement, with regard to the Product and/or the provision of or failure to provide Limited Support or Maintenance. Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to Licensee.
LIMITATION OF LIABILITY: In the event the exclusion of implied warranties does not apply and in the event of a breach of such warranties, Faronics' and its suppliers' entire liability and its exclusive remedy will be, at Faronics' option, either: (a) return of the price paid, if any; or (b) repair or replacement of the Product returned to Faronics with a receipt. To the maximum extent permitted by applicable law, in no event will Faronics or its suppliers be liable (whether under contract, tort, strict liability or otherwise) for any special, incidental, indirect, or consequential damages (including, without limitation, loss inaccuracy or corruption of data, loss of opportunity, loss of privacy, cost of recovery, cost of procurement or substitute goods or services, system downtime, failure of security mechanisms, financial loss, loss of goodwill, revenue or loss of profit, business interruption, loss of business information, or any other pecuniary or business loss for any reason whatsoever) arising out of the use of or inability to use the Product, including beta versions thereof, as well as Maintenance, Limited Support and all other services provided by Faronics or the provision of or failure to provide Limited Support or Maintenance, even if Faronics has been advised of the possibility of such damages. To the maximum extent permitted by applicable law, in no event will the aggregate and cumulative liability (whether under contract, tort, strict liability or otherwise) of Faronics and its affiliates and their respective licensors and other suppliers for any matters arising under this agreement or otherwise exceed the lesser of the amount paid by Licensee to Faronics or its affiliates, as applicable, in connection with the particular transaction giving rise to the claim and CDN$1000. As some jurisdictions do not allow the exclusion or limitation of liability, the above limitation may not apply in certain jurisdictions.
Licensee agrees that the limitations of this section and the section headed 'No Warranties' above are essential and that Licensee would not be permitted to use the Product absent the terms of such sections. Such sections will survive and apply even if any remedy specified in this agreement will be found to have failed of its essential purpose.
The Product is not fault-tolerant and is not designed or intended for use in any hazardous environment requiring fail-safe performance or operation. The Product is not for use in the operation of aircraft navigation, nuclear facilities, or communication systems, weapons systems, direct or indirect life-support systems, air traffic control, or any application or installation where failure could result in death, severe physical injury or property damage.
U.S. GOVERNMENT LICENSES: The Licensed Software and accompanying documentation of the Product 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, duplication, modification, reproduction, release, performance, display, disclosure, or transfer of the Product by the U.S. Government shall be governed solely by the terms of this agreement. The Product was developed fully at private expense. All other use is prohibited.
EXPORT COMPLIANCE: Licensee acknowledges that the Product or parts thereof may be subject to export restrictions by the United States government and import restrictions by certain foreign governments. Licensee will not and will not allow any third-party to remove or export from the United States or allow the export or re-export of any part of the Product or any direct product thereof: (i) into (or to a national or resident of) any embargoed or terrorist-supporting country; (ii) to anyone on the U.S. Commerce Department's Table of Denial Orders or U.S. Treasury Department's list of Specially Designated Nationals; (iii) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (iv) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. Licensee understands that Faronics is not responsible for Product or part thereof that is exported by Licensee or transferred to another representative in the United States or another country. Licensee agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list. The Product is further restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology, or for terrorist activity, without the prior permission of the United States government.
NO ASSIGNMENT: Licensee may not assign this agreement to a third party without the prior written consent of Faronics.
ENTIRE AGREEMENT: This agreement is the complete and sole statement of the agreement between us and supersedes all representations, warranties and agreements (whether written or oral) relating to the Product, Maintenance, Limited Support and all other services provided by Faronics which are the subject matter of this agreement. This agreement cannot be modified except in writing and with the written approval of Faronics.
PARTIAL ILLEGALITY: If any provisions of this agreement will be construed to be illegal or invalid, it will not affect the legality or validity of any other provision thereof, and the illegal or invalid provisions will be deemed stricken and deleted herefrom to the same extent and effect as if never incorporated herein, but all other provisions hereof will continue in full force and effect.
FORCE MAJEURE: Faronics will not be liable to Licensee for failure or delay in the performance of its obligations hereunder caused by any cause beyond Faronics' control (including acts of God, laws or regulations of any government, war, civic commotion, labour disturbances, fire, earthquake, storm, failure of public utilities or common carriers or failure of third party suppliers) for the period of time that the foregoing prevents performance.
SURVIVAL: Paragraphs 'Intellectual Property Rights', 'Confidentiality', 'Third Party Components', 'Termination', 'No Warranties' 'Limitation of Liability', and in the case of a perpetual license, 'Limitations on Use', continue in force indefinitely, even after this agreement terminates or expires.
APPLICABLE LAWS: The rights and obligations of the parties under this agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Instead, unless expressly prohibited by local law, the rights and obligations of the parties under this agreement will be governed by the Province of British Columbia, and the laws of Canada applicable therein. Licensee irrevocably submits to the exclusive jurisdiction of the courts of British Columbia in any proceeding related to this agreement.