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 Number 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 Number 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.
ACCOUNT; SECURITY: The terms
of Faronics' Privacy Policy as modified from time to time, can be found at www.faronics.com/privacy. To access and use the Products, Licensee
must create an Account that is protected by a username and password and
Licensee must keep any passwords and other Account details secret. Licensee agrees to provide Faronics with
accurate and complete information when registering for an Account and at all
times thereafter. Faronics must be
promptly notified if changes to Licensee's information occur. Licensee acknowledges and agrees that it
is responsible for providing the following: (i) all equipment, such as a
computer and modem, necessary to access the Internet; (ii) its own access to
the Internet; and (iii) payment of all telephone or
other fees associated with such access.
Licensee is solely responsible for access to, content in, or sharing and
use of its Account. Licensee is
solely responsible for obtaining consent or providing notice of collection, use
and disclosure with respect to any personal information provided directly or
indirectly to Faronics in the course of Licensee's use, or Licensee's
employees', agents' and contractors' use of the Account, and the Products. Faronics will not be liable for any loss
or damage arising from any access to, or sharing and use of Licensee's
Account. If Licensee believes or
suspects there has been any unauthorized access to the Account, Licensee must
notify Faronics immediately by email to Legal@faronics.com.
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.
Faronics Corporation
1400 - 609 Granville Street
PO Box 10362 Pacific Centre
Vancouver, BC, V7Y 1G5 Canada
Phone: (604) 637-3333
Fax: (604) 637-8188
Email: sales@faronics.com
Web: www.faronics.com
