MASTER SOFTWARE LICENSE AGREEMENT – INSIGHT
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 the Licensee a limited, non-exclusive license to install, use, access, display, run, or otherwise interact with (collectively, "Use") the software product in object code and any other product or products identified above, and additionally covers, to the extent included with the software product as determined by Faronics, and not governed by a separate license agreement, all associated media; 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 (collectively with the software, the "Product") on the number of computers or classrooms set out across from the heading "Number of Licenses" above. In no circumstances will the Licensee be permitted to Use the Product on a number of computers or in a number of classrooms exceeding the number of computers or classrooms set out across from the heading "Number of Licenses" above. Additionally, the Licensee may make copies of the software component of the Product to a maximum number not exceeding the above-mentioned Number of Licenses, to be held as archival copies and only to be Used by the 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: The Licensee represents that it has obtained all
necessary consent and authority for the importation and use of the Product in
the jurisdiction in which the 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 the 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 will not be Used as part of a time-share or service bureau arrangement. The Product may not be modified, reverse
engineered, decompiled, or disassembled. The proprietary rights legends contained on and in the Product must not be removed.
ACCOUNT; SECURITY: Faronics respects Licensee"s privacy and 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 Services, 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 is the owner of and retains title to all proprietary and intellectual property rights in and to the Product, including copyrights, trade secrets, trade-marks and know-how protected both by United States and Canadian copyright laws, and under the provisions of international treaties.Copying of the Product, other than as explicitly provided 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 thatthe Licensee has no rights in any trade-marks of Faronics. Any supplemental software code, documentation or other material provided to the Licensee hereunder will be
included in the definition of Product and subject to the provisions of this agreement. If the 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 the Licensee.
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 the 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: 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.Subscriber further agrees that as long as it is using the Software or Services, or has the Software installed, it has an "existing business relationship" as it is defined
in CASL.
RECORDS: 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.Licensee will permit us or our representatives to inspect all relevant records in order to determine whether Licensee is complying with this agreement and to make copies of all such records.
TERMINATION: Without prejudice to any other rights, Faronics may terminate this agreement if: (a) 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) Licensee defaults under any of its other obligations and such default continues for 15 days after receiving written notice of such default from Faronics; or <(c) any resolution is passed or order made or other steps taken for its bankruptcy, insolvency, liquidation, winding up or other termination of existence. If Faronics terminates this agreement, then all rights granted hereunder will immediately terminate and the Licensee
agrees to immediately destroy all copies of the Product (and certify to Faronics that Licensee has done so) and pay all amounts due and payable to Faronics prior to such termination.
THIRD PARTY SOFTWARE COMPONENTS: The Product and future updates and patches include third party components, including open source software components. These third party components are provided to Licensee under separate terms and conditions different from this Agreement, typically found in a separate license agreement, the header file of the component source code or in a README (or similarly titled) file. The third party"s license terms and use restrictions will solely govern the use of such components.To the extent that there may be conflict between this Agreement and an applicable third party"s license terms and use restrictions, the third party license terms and use restrictions shall control to the extent of the conflict.
NO WARRANTIES: The Product as well as Maintenance and all other services provided by Faronics are provided "as is" without warranty of any kind, either express or implied, including but not limited to implied warranties of merchantability, fitness for a particular purpose, 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 orits suppliers be liable for any special, incidental, indirect, or consequential damages (including, without limitation, loss or corruption of data, loss of opportunity, loss of privacy, cost of recovery, financial loss, loss of revenue or loss of profit, business interruption, loss of business information, or any other pecuniary 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 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. In no event will the aggregate and cumulative liability of Faronics and its affiliates and their respective 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.
U.S. GOVERNMENT RESTRICTED RIGHTS: If Licensee is a US government agency, Use, duplication or disclosure by the US government is subject to restrictions set forth in subparagraphs (a) through (d) of the Commercial Computer-Restricted Rights clause at FAR 52.227-19 when applicable, or in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, and in similar clauses in the NASA FAR Supplement. Contractor/manufacturer is Faronics Corporation.
NO ASSIGNMENT: Licensee may not assign this agreement to a third party without the prior written consent of Faronics.
ENTIRE AGREEMENT: Licensee agrees that 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 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", "Termination", "No
Warranties" and "Limitation of Liability" 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
