2. Restrictions on Use of Software. Licensee may install and use the Software only for its internal business purposes. Licensee will not rent, lease, lend, sublicense, redistribute or otherwise allow third parties to use the Software directly or indirectly, whether on a time sharing, remote job entry, or service bureau arrangement or to provide commercial hosting services to third parties. Notwithstanding the foregoing, Licensee shall be permitted to perform all acts necessary to use the Software for its intended purpose including providing access to Software for independent consultants and subcontractors, solely for Licensee’s internal business purposes. Subject to the other terms of this License, Licensee may freely distribute applications that it has processed using the Software. Additional license terms and copyright notices are described in the ThirdPartyLicenses file accompanying the Software; in addition to any terms and conditions of any such file, the disclaimer of warranty and limitation and exclusion of damages provisions shall apply to all software in this distribution.
3. Build Machine License. If Licensee acquired a License for the Software pursuant to a Build Machine License, subject to the exception set forth at the end of this Section 3, a copy of the Software installed on a single or multiple computers, as set forth in the license, may be shared for internal use by employees and contractors of Licensee’s business, provided that a valid license has been obtained for the named individual users of the Software. The following is an exception to the provisions of this Section 3: a Build Machine license also includes unlimited use and distribution, within the stated company, of Lucidator for use only on output from the licensed Build Machine copy.
4. Subscription. If Licensee acquired a License for the Software pursuant to a Subscription agreement, this agreement will continue until terminated. Once the agreement is terminated, Licensee has no right to use the Software.
5. No Modification Non-Use by Third Parties. Licensee may not modify the Software files, executables, or otherwise. Use of this software is limited to first party applications. Licensee may not, directly or indirectly, provide as a service, use of Dotfuscator, DashO, or PreEmptive Analytics Software (by way of example, but not as limitations this includes providing a networked interface to the software, direct or indirect use of the Software for other persons by the Licensee, or knowingly allowing third parties to access the Software). This License is for the use of the Software in object code form only. Licensee agrees to take all reasonable precautions to secure the Software from distribution to any third party.
6. Other Restrictions. Licensee agrees that the Software is proprietary and no interest is transferred. Licensee shall use the Software only as expressly permitted by this License and shall keep confidential and use the Licensee's best efforts to prevent and protect the contents of the Software (or any part thereof) from unauthorized disclosure. Licensee shall not modify, decompile, disassemble, decrypt, extract, or otherwise reverse engineer Software. Software may not be leased, assigned, or sublicensed, in whole or in part. Licensee accepts full responsibility for use of the Software including, but not limited to, acceptance of full responsibility pursuant to third party software and licensing agreements regarding the use of the Software to modify, examine, or otherwise process such third party software. Licensee shall have sole responsibility for the installation of the Software.
7. Maintenance or Other Services. If ordered by Licensee and upon payment of the applicable fee, Licensee is entitled to receive technical support services, including corrections, fixes and enhancements to the Software as such are made generally available (the “Maintenance Services”) from Licensor in accordance with Licensor’s then-current maintenance terms for the applicable maintenance level purchased by Licensee. Maintenance services will not include any releases of the Software that Licensor determines to be a separate product or for which Licensor charges its customers extra or separately. The provision and use of Maintenance Services is governed by the Licensor's policies and programs described in the online documentation. Any supplemental software code provided to Licensee as part of the Maintenance Services shall be considered part of the Software and subject to the terms and conditions of this License. With respect to technical information Licensee provides to Licensor as part of the Maintenance Services, Licensor may use such information for its business purposes, including for product updates and development. If agreed by Licensee, services for PreEmptive Analytics or other services may be provided according to the terms of Appendix I—SERVICES APPENDIX.
8. Trademarks and Logos. This License does not authorize Licensee to use any name, trademark or logo of Licensor. Licensee shall neither take nor permit any action that will delete or obscure Licensor's copyright legend on any Software and any related documentation and materials.
9. Competitive Product Restriction. Licensee may not use, distribute or integrate the Runtime Software with any product that is generally competitive with PreEmptive's product offerings; nor may Licensee use the Software or Runtime Software to create a product that is generally competitive with PreEmptive's product offerings.
10. Disclaimer of Warranty. The Software is provided "AS IS," without any warranty or representation of any kind. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED BY PREEMPTIVE AND ITS SUPPLIERS "AS IS" WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. ALL CONDITIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, ARE DISCLAIMED BY PREEMPTIVE AND ITS SUPPLIERS, INCLUDING, WITHOUT LIMITATION, THE IMPLIED CONDITIONS AND/OR WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. IN THE EVENT OF ANY ACTUAL BREACH OF THIS LICENSE BY PREEMPTIVE, LICENSEE'S SOLE AND EXCLUSIVE REMEDY SHALL BE THE RECISSION OF THIS LICENSE AND RECOVERY OF ANY SUMS PAID BY LICENSEE TO PREEMPTIVE DURING THE PREVIOUS TWELVE MONTHS.
11. Limitation of Liability. PREEMPTIVE AND ITS LICENSORS SHALL NOT BE LIABLE FOR ANY DAMAGES SUFFERED BY LICENSEE OR ANY THIRD PARTY AS A RESULT OF USING OR DISTRIBUTING SOFTWARE. WITHOUT LIMITING THE GENERALITY OF THE PRECEDING SENTENCE, IN NO EVENT WILL PREEMPTIVE OR ITS LICENSORS BE LIABLE FOR ANY LOST REVENUE, PROFIT OR DATA, OR FOR DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF THE USE OF OR INABILITY TO USE SOFTWARE, EVEN IF PREEMPTIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12. Termination. Licensee may terminate this License by either returning the Software to PreEmptive or destroying the Software (in which event, Licensee shall certify in writing to PreEmptive that such destruction has occurred). This License will terminate immediately without notice from PreEmptive if a) Licensee fails to comply with any provision of this License or b) for Subscription agreements, Licensee does not contract for renewal and make payment for the same. Upon such termination, Licensee must destroy all copies of Software, and upon PreEmptive's request, Licensee shall certify in writing to PreEmptive that such destruction has occurred. In the event of a termination of the License for any reason or by any party, Licensee shall have no right to claim a refund for any sums paid by Licensee to PreEmptive. From and after the termination of the License for any reason or by any party, Licensee shall not use the Software for any purpose whatsoever and shall not disclose or use the Software (or any part thereof) in any fashion.
13. Increased Usage. Should Licensee desire to increase its use of the Software beyond that which it had contracted for, Licensee agrees that pricing for the increased usage will be at the then current rates.
14. Marketing. Licensee agrees to be identified as a customer of PreEmptive and Licensee agrees that PreEmptive may refer to Licensee by name, trade name, and trademark, if applicable, and may briefly describe Licensee’s business in PreEmptive's marketing materials and web site. Licensee hereby grants PreEmptive a license to use Licensee’s name and any of Licensee’s trade names and trademarks solely in connection with the rights granted to PreEmptive pursuant to this marketing section.
15. U.S. Government Restricted Rights. The Software and Documentation are provided as “Commercial Computer Software” or “restricted computer software”. Use, duplication, or disclosure by the U.S. Government or a U.S. Government subcontractor is subject to the restrictions set forth in 48.C.F.R. Section 12.212 or 48 C.F.R 227.2702, as applicable or successor provisions.
16. Export Regulations. Licensee will fully comply with all relevant export laws and regulations, including but not limited to the U.S. Export Administration Regulations and Executive Orders (“Export Controls”). Licensee warrants that Licensee is not a person, company or destination restricted or prohibited by Export Controls (“Restricted Person”). Licensee will not, directly or indirectly, export, reexport, divert, or transfer the Software, any portion thereof or any materials, items or technology relating to Licensor’s business or related technical data or any direct product thereof to any Restricted Person.
17. Governing Law/Jurisdiction and Venue. Any action related to this License will be governed by Ohio law and controlling U.S. federal law. No choice of law rules of any jurisdiction will apply. Proper and exclusive venue for any action arising hereunder shall lie in the Courts of Common Pleas, Cuyahoga County, Ohio, or federal courts situated in the Northern District of Ohio, Eastern Division. Licensee irrevocably consents and submits to the personal jurisdiction of said Courts. To the extent the provisions of this License are not inconsistent therewith, this License shall be governed by the Uniform Commercial Code as adopted in Ohio.
18. Audit. During the term of this License and for three (3) years after termination or expiration, Licensee will maintain complete records regarding Licensee's use and distribution of the Software. Upon reasonable notice to Licensee, PreEmptive may audit, at PreEmptive's expense, Licensee's books and records to determine Licensee's compliance hereunder. In the event any such audit reveals that Licensee has underpaid PreEmptive by an amount greater than five percent (5%) of the amounts due PreEmptive in the period being audited, or that Licensee has knowingly breached any obligation hereunder, then, in addition to such other remedies as PreEmptive may have, Licensee shall pay or reimburse to PreEmptive for the cost of the audit. Licensee also agrees to report on a semiannual basis the number of users of the Software as well as the number of developers included in the respective groups.
19. Severability. If any of the above provisions are held to be in violation of applicable law, void, or unenforceable in any jurisdiction, then such provisions are herewith waived to the extent necessary for the License to be otherwise enforceable in such jurisdiction. However, if in Licensor's opinion deletion of any provisions of the License by operation of this paragraph unreasonably compromises the rights or increase the liabilities of Licensor or its licensors, Licensor reserves the right to terminate the License and refund the fee paid by Licensee, if any, and such refund shall be Licensee's sole and exclusive remedy.
20. No Waiver. No waiver by Licensor of any breach of any provision of this License shall be elective unless in writing signed by Licensor. No waiver shall constitute a continuing waiver unless expressly provided in the writing signed by Licensor.
21. Parties. Licensee and Licensor are independent parties. Nothing in this License shall be construed as making Licensee an employee, agent or legal representative of Licensor. There are no third-party beneficiaries of this License.
22. Taxes. PreEmptive’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Licensee shall be responsible for payment of all such items, excluding only United States taxes based on PreEmptive’s income.
APPENDIX 1 SERVICES APPENDIX
23. Services. BY REQUESTING SERVICES (AS DEFINED IN THIS PARAGRAPH) AS PART OF THE ORDERING PROCESS, LICENSEE AGREES TO THE ADDITIONAL TERMS AND CONDITIONS SET FORTH IN THIS APPENDIX 1 (THE “SERVICES APPENDIX”) GOVERNING LICENSEE’S USE OF THE SERVICES. THESE TERMS ARE HEREBY INCORPORATED INTO THE LICENSE BY REFERENCE. LICENSEE’S REGISTRATION FOR, OR USE OF, ANY SERVICES SHALL BE DEEMED TO BE LICENSEE’S AGREEMENT TO ABIDE BY THIS LICENSE. “Service(s)” means online hosting of PreEmptive Analytics, other online hosted products, or security, compliance, consulting, or performance services identified during the ordering process, or other services accessed.
24. Term. This License commences on the earlier of either the date the Services are ordered or the date Licensee begins using the Service. For online hosting of PreEmptive Analytics, the Initial Term is one year or as otherwise mutually agreed upon, commencing on the date Licensee orders the Services. Upon the expiration of the Initial Term, this License will automatically renew for successive renewal terms of one year at PreEmptive’s then current fees.
25. Grant. Upon Licensee’s payment for Services and acceptance of this License, PreEmptive hereby grants to Licensee for the Service Term a non-exclusive, non-transferable right to use the Services, solely for Licensee’s own internal business purposes, subject to the terms and conditions of this License. All rights not expressly granted to Licensee are reserved by PreEmptive.
26. Restrictions. Licensee may use the online hosting only for PreEmptive Analytics software and shall not (a) lease, assign, license, sublicense, sell, resell, transfer, distribute or otherwise commercially exploit or make available to any third party the Services in any way; (b) modify or make derivative works based upon the Services; (c) reverse engineer or access the Services to build a competitive product or service or copy any ideas, features, functions or graphics of the Services; (d) attempt to circumvent any billing mechanism that meters use; (e)send spam or unsolicited messages; (f) send or store infringing, obscene, libelous, or otherwise unlawful or tortious material, including material violative of privacy rights; (g) improperly send or store personally identifiable information; (h) send or store material containing software viruses, worms, or other harmful computer code, files, scripts, agents or programs; (i) interfere with or disrupt the integrity or performance of the Services or the data contained therein; or (j) attempt to gain unauthorized access to the Services or its related systems or impersonate another PreEmptive User or provide false identity information to gain access to or use the Services.
27. Licensee’s Responsibilities. Licensee shall (a) be responsible for all activity in Licensee’s User accounts and for maintaining the confidentiality of any non-public authentication credentials; (b)be responsible for configuring the Services to ensure adequate security, protection, and backup of Customer Data (c) follow all applicable laws, treaties and regulations in connection with Licensee’s use of the Services, including, without limitation, those related to data privacy and the transmission of data; (d) immediately notify PreEmptive of any unauthorized use of any password or account or any other known or suspected breach of security and report to PreEmptive and use reasonable efforts to stop any copying or distribution of Service that is known or suspected by Licensee or Licensee’s Users.
28. Customer Data. PreEmptive does not own any data, information or material that Licensee submits or causes to be submitted to the Services (“Customer Data”). Licensee, not PreEmptive, is solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data and will secure and maintain all rights in Customer Data necessary for PreEmptive to provide the Services without violating the rights of any third party. Licensee will obtain any necessary consent from End Users or others whose personal information or other data will be hosted using the Services. PreEmptive shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data.
29. PreEmptive Use of Customer Data. PreEmptive will treat Customer Data in accordance with its Privacy Statement. PreEmptive is a data processor (or sub-processor) acting on Licensee’s behalf to provide the Services. PreEmptive will use Customer Data only to provide the Services. This use may include troubleshooting to prevent, find, and fix problems with the operation of the Services. PreEmptive will not use Customer Data or derive information from it for any advertising or other commercial purposes without Licensee consent. PreEmptive reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, Licensee’s non-payment. Upon termination, Licensee’s right to access or use Customer Data immediately ceases, and PreEmptive shall have no obligation to maintain or forward any Customer Data.
30. Updates. PreEmptive may make changes to the Services or Software from time to time. PreEmptive makes no representation, warranty or guaranty as to the reliability, timeliness, quality, suitability, availability, accuracy or completeness of the Services as a result of any changes. PreEmptive will establish transition timetables for major and minor releases, and generally provide 6 month’s prior notice before requiring changes, unless security, legal, or system performance considerations require an expedited transition. At Licensee’s request, PreEmptive will help identify services to assist in migration for changes of custom and standard configurations, and provide related fee estimates. Technical limitations may prevent successful migration or present a special risk that data will be lost during a migration.
31. Billing and Renewal. PreEmptive charges in advance for use of the Services. An authorized License Administrator may request additional services by completing an additional written Order Form. Added services will be coterminous with the preexisting License Term and the fee for the added services will be the then current, generally applicable services fee. PreEmptive reserves the right to modify its fees and to introduce new fees at any time, including fees for excessive usage , upon at least thirty days prior notice to Licensee, which notice may be provided by e-mail. PreEmptive will automatically renew and bill Licensee’s credit card or invoice Licensee (a) each year on the subsequent anniversary for annual services, or (b) as otherwise mutually agreed upon. The renewal charge will reflect the rates in effect during the prior term, unless PreEmptive has given Licensee at least thirty days prior written notice of a fee increase, which shall be effective upon renewal and thereafter. Fees for other services will be charged on an as-quoted basis. All pricing terms are confidential; Licensee agrees not to disclose them.
32. Usage and Data Storage and Fees. Usage and Data Storage policies and fees are incurred as described in PreEmptive’s documentation or as modified on an Order Form. PreEmptive’s online hosting includes limits. PreEmptive reserves the right to establish or modify its fees, general practices and limits relating to usage and data storage, at any time.
33. Taxes. PreEmptive’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Licensee shall be responsible for payment of all such items, excluding only United States taxes based on PreEmptive’s income.
34. Payment of Fees. Licensee shall pay all fees in accordance with the fees and billing terms in effect at the time a fee is due and payable. Payments may be made annually during the Initial Term, or as otherwise agreed upon. Payment obligations are noncancelable and amounts paid are nonrefundable. Licensee is responsible for paying for User licenses ordered for the entire License Term, whether or not such User licenses are actively used. Licensee must provide PreEmptive with valid credit card or approved purchase order information when signing up for the Services.
35. Termination. If Licensee or PreEmptive initiates termination of this License, Licensee will be obligated to pay the balance due on Licensee’s account. Licensee agrees that PreEmptive may charge such unpaid fees to Licensee’s credit card or otherwise bill Licensee for such unpaid fees. PreEmptive may charge a reconnection fee in the event Licensee are suspended and thereafter request access to the Service. This License will terminate if Licensee does not make a payment for the Service. Either party may terminate this License or reduce the number of licenses, effective only upon the expiration of the then current License Term, by notifying the other party in writing at least five business days prior to the beginning of the following term.
36. Indemnification. Licensee hereby defends, indemnifies and holds PreEmptive, its licensors and their parent organizations, subsidiaries, affiliates, officers, members, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or relating to a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party. Licensee may not settle any claim without the prior written consent of PreEmptive.
37. Disclaimer of Warranties relating to Services. PREEMPTIVE AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR ANY CONTENT. PREEMPTIVE AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICES WILL MEET LICENSEE’S REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY LICENSEE THROUGH THE SERVICES WILL MEET LICENSEE’S REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICES OR THE SERVER(S) THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICES AND ALL CONTENT IS PROVIDED TO LICENSEE STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY PREEMPTIVE AND ITS LICENSORS. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. PREEMPTIVE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. PREEMPTIVE WILL NOT BE RESPONSIBLE FOR UNAVAILABLITY OF SERVICES DUE TO SCHEDULED AND NOTICED OR EMERGENCY MAINTENANCE OR OUTAGES.
EVALUATION SOFTWARE AND SERVICES
If Licensee has received the Software for purposes of evaluation, regardless of how labeled, the use of the Software and Services is limited to a fifteen day period of time, or as specified in the email accompanying the download instructions (the "Evaluation Period") and all use will be governed by the terms set forth below.
1. Grant of License. Licensor grants Licensee a limited, personal, internal use, non-exclusive, non-transferable license to use the Software and Services solely to evaluate its suitability for Licensee’s internal business requirements during the Evaluation Period. Without limiting the foregoing, Licensee may not use the Software or Services during the Evaluation Period to create publicly distributed computer software or for any other commercial purpose. This license may be terminated by Licensor at any time upon notice to Licensee and will automatically terminate, without notice, upon the first to occur of the following: (a) the completion of Licensee’s evaluation of the Software and Services or (b) the expiration of the Evaluation Period.
2. Limited Use Software. Portions of the full-use version of the Software and Services may be withheld or unusable and use of the Software may require accessing portions of the Software remotely through the Internet. Full use of the Software and Services may be restricted by technological protections.
3. Disclaimer of Warranty. THE SOFTWARE AND SERVICES ARE PROVIDED ONLY FOR EVALUATION PURPOSES ON AN "AS IS" BASIS. LICENSOR EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
4. Limitation of Liability. IN NO EVENT WILL LICENSOR BE LIABLE FOR ANY DAMAGES, INCLUDING LOST PROFITS OR DATA, OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES, ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE AND SERVICES OR ANY DATA SUPPLIED THEREWITH, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY.
Revised November 2014