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. 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.
4. Team License. If Licensee acquired a License for the Software pursuant to a Team License, products are licensed by Development Team, for not –to-exceed agreed upon numbers of Build Machines (or hosted Concurrent Jobs) and specified Verified Users. A copy of the Software may be used for internal use by employees and contractors of Licensee’s business, provided that a valid license has been obtained and Verified Users have been identified by full name, individual email, phone number, and their Team and or Group name.
5. Build Machine License. If Licensee acquired a License for the Software pursuant to a Build Machine License, 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.
6. 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 other PreEmptive 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.
7. 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.
8. 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. Technical support services are available from 8:30 a.m. to 5:00 p.m. EST. Technical support can be reached via telephone at +1 440.443.7200 or completing a support request form at https://www.preemptive.com/contact/supportrequestform. 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.
9. Trademarks and Logos. This License does not authorize Licensee to use any name, trademark or logo of Licensor, including the trademarks Dotfuscator and DashO. 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.
10. 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.
11. 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 RESCISSION OF THIS LICENSE AND RECOVERY OF ANY SUMS PAID BY LICENSEE TO PREEMPTIVE DURING THE PREVIOUS TWELVE MONTHS.
12. 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.
13. 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.
14. 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.
15. 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.
16. Information Collected. The Software and related registration processes may collect information about Licensee and use of the Software, including feature usage, and transmit that to Licensor. Licensor may use this information to provide services and optimize them. Licensee may opt-out of some but not all these scenarios, as described in the Software documentation. Additional information is provided at https://www.preemptive.com/company/privacy.
17. 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.
18. 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.
19. Audit. During the term of this License and for two (2) 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 identify Verified Users on an annual basis, providing the full name, individual email, phone number, and the Team and or Group name of each Verified User.
20. 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.
21. 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.
22. 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.
23. 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.
24. Billing and Renewal. PreEmptive charges in advance for Subscription agreements. An authorized License Administrator may request additional licensing by completing an additional written Order Form. The fee for the added licensing will be the then current, generally applicable fee. PreEmptive reserves the right to modify its fees and to introduce new fees at any time 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. Standard fees do not include processing through an electronic invoicing system, Licensee shall pay a separate fee for use of such a system. All pricing terms are confidential; Licensee agrees not to disclose them.
If Licensee has received the Software for purposes of evaluation, regardless of how labeled, the use of the Software 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 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 during the Evaluation Period to create publicly distributed computer software or for any other commercial purpose. Applications developed with Evaluation Software may expire. 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 or (b) the expiration of the Evaluation Period.
2. Limited Use Software. Portions of the full-use version of the Software 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 may be restricted by technological protections.
3. Disclaimer of Warranty. THE SOFTWARE 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 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 December 2018