END-USER LICENSE AGREEMENT
Please read the terms of this “End-User License Agreement” (“EULA”) carefully.
The EULA is a legal agreement between you, the end-user (any agency or company that the end user represents, or that employs the end user, are collectively referred to as the “USER”), and Pen-Link, Ltd. (“PEN-LINK”) for the Pen-Link computer software accompanying this End-User License Agreement, and any associated media, printed materials and any “online” or electronic documentation (collectively, “SOFTWARE”). This SOFTWARE does not include source code. Any updates or upgrades to such SOFTWARE that USER is entitled to receive and that has been provided to the USER by PEN-LINK shall also mean SOFTWARE for purposes of this EULA.
1. GRANT OF LICENSE:
The SOFTWARE is licensed, not sold. By distributing, installing, copying or otherwise using the SOFTWARE, you agree to be bound by the terms of this EULA. If you do not agree to the terms of this EULA, you are not permitted to distribute, install, copy, or use the SOFTWARE. The USER assumes complete responsibility for the selection of the SOFTWARE to achieve the intended results, and for the installation, use and results obtained from the SOFTWARE
2. RESTRICTIVE USE:
USER may not, without PEN-LINK’s prior written consent, conduct, cause or permit the: (i) use, copying, modification, rental, lease, sublease, sublicense, publicly display, publicly perform, or transfer of the SOFTWARE except as expressly provided in this EULA; (ii) creation of any derivative works based on the SOFTWARE; (iii) reverse engineering, disassembly, or decompiling of the SOFTWARE; (iv) use of the SOFTWARE in connection with service bureau, facility management, timeshare, service provider or like activity whereby USER operates or uses the SOFTWARE for the benefit of a third party; (v) use of the SOFTWARE by any party other than the USER; (vi) use of a later version of the SOFTWARE other than the version that accompanies this EULA unless USER has separately acquired the right to use such later version through an additional end-user license agreement; nor (vii) use of the SOFTWARE above the quantity that have been licensed to USER under this EULA (the quantity is calculated using license use meter or model by which PEN-LINK measures, prices and licenses the right to use the SOFTWARE in affect at the time an order is placed for such SOFTWARE). In addition, USER shall not release the results of any benchmark testing of the SOFTWARE to any third party without the prior written consent of PEN-LINK.
This SOFTWARE, its documentation, and other accompanying and supporting materials are copyrighted property of PEN-LINK, and protected by copyright laws and international copyright treaties. PEN-LINK retains ownership of the SOFTWARE, documentation, and accompanying and supporting materials.
4. SUPERCEDING CONTRACTS:
Part or all of the EULA may be superseded or augmented by one or more additional contracts or provisions (collectively, “PROVISIONS”) between the USER, or the purchasing agency associated with the USER and PEN-LINK. It is the USER’s responsibility to be aware of any such PROVISIONS and of the terms and limitations specified by such PROVISIONS. Any and all additional PROVISIONS are subject to the terms of this EULA unless otherwise specified in the PROVISIONS and, except as otherwise expressly provided in the PROVISIONS, in the event of any conflict between the terms of this EULA and the terms of any PROVISION, this EULA shall control.
5. LIMITED WARRANTY:
ANY USE OF THIS SOFTWARE IS AT THE USER’S RISK. TO THE MAXIMUM EXTENT ALLOWED BY LAW, PEN-LINK DISCLAIMS ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. THE END USER ASSUMES ALL RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE. SHOULD THE SOFTWARE PROVE DEFECTIVE, THE USER (NOT PEN-LINK) ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION.
PEN-LINK does not warrant that the functions contained in the SOFTWARE will meet the USER’s requirements or that the operation of the SOFTWARE will be uninterrupted or error free.
PEN-LINK warrants the media on which the SOFTWARE is furnished to be free from defects in materials and workmanship under normal use for a period of ninety (90) days from the date of delivery to the USER, as evidenced by a copy of the USER’s purchase order.
6. LIMITATIONS OF REMEDIES:
PEN-LINK’s entire liability and the USER’s exclusive remedy shall be the replacement of any distribution media not meeting PEN-LINK LIMITED WARRANTY as stated above that are returned to PEN-LINK., at the address shown below, with a copy of the USER’s purchase order:
5944 VanDervoort Drive
Lincoln, NE 68516
IN NO EVENT WILL PEN-LINK BE LIABLE FOR ANY DAMAGES, INCLUDING ANY LOST PROFITS, LOST SAVINGS, OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, EVEN IF PEN-LINK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY.
7. SUBSCRIPTION BASED SOFTWARE PROVISION:
If USER acquires SOFTWARE on a limited-time, subscription-based license (“SUBSCRIPTION LICENSE”), the SOFTWARE is only functional to the USER during the effective period of performance as outlined in the SUBSCRIPTION LICENSE purchase agreement (e.g., a quote, a purchase order, an invoice or other purchasing document between the USER and PEN-LINK that outlines a period of performance, collectively “SUBSCRIPTION PURCHASE AGREEMENT”) provided to the USER upon purchase of the SUBSCRIPTION LICENSE. At the end of the period of performance as defined in the SUBSCRIPTION PURCHASE AGREEMENT, the SUBSCRIPTION LICENSE will expire and the SOFTWARE shall cease to function until USER renews the SUBSCRIPTION LICENSE. PEN-LINK is not responsible for notifying USER of any pending SUBSCRIPTION LICENSE expiration. USER must contact PEN-LINK to renew SUBSCRIPTION LICENSE before expiration to avoid an interruption in SOFTWARE functionality.
8. SOFTWARE MAINTENANCE AND SUPPORT PROVISION:
USER may acquire under a separate agreement (“MAINTENANCE AND SUPPORT AGREEMENT”), software maintenance and support services (collectively, “MAINTENANCE AND SUPPORT”) from PEN-LINK pursuant to the then applicable PEN-LINK Maintenance and Support Terms and Conditions (MAINTENANCE AND SUPPORT PROVISIONS) and the then list price in effect at the time the MAINTENANCE AND SUPPORT AGREEMENT is executed. The MAINTENANCE AND SUPPORT PROVISIONS can be provided to the USER upon request to PEN-LINK.
9. SERVICES PROVISION:
USER may acquire under a separate agreement (“SERVICES AGREEMENT”), education, installation, implementation, configuration, professional or consulting services (collectively, “SERVICES”) from PEN-LINK pursuant to the then applicable SERVICES policies and the then list price in effect at the time the SERVICES AGREEMENT is executed. The SERVICES to be performed are outlined in the SERVICES purchase agreement (e.g., a quote, a purchase order, an invoice or other purchasing document between the USER and PEN-LINK that outlines the SERVICES purchased, collectively “SERVICES PURCHASE AGREEMENT”).
10. GOVERNING LAW:
This EULA is governed by and construed in accordance with the laws of the State of Nebraska without regard to its conflicts of laws provisions. USER agrees to first negotiate and mediate disputes. If such efforts are unsuccessful within 90 days of written notice of dispute, as a last resort, USER submits to the jurisdiction of the federal and state courts of the State of Nebraska, and agrees that the exclusive venue for any and all actions related hereto shall be in such courts.
11. EXPORT CONTROL:
USER shall comply fully with all relevant export laws and regulations of the United States and other applicable export and import laws to assure that neither the SOFTWARE, nor any direct product thereof, are exported, directly or indirectly, in violation of applicable laws.
If any provision of this EULA shall be held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired.
13. NO WAIVER:
No waiver of any breach of any provision of this EULA shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
USER shall discontinue use and destroy, or return, to PEN-LINK all copies of the SOFTWARE and any SOFTWARE documentation upon the termination of this EULA.
15. ENTIRE AGREEMENT:
This EULA sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to the subject matter hereof. Neither party has relied upon any prior or contemporaneous communications.
16. EXECUTION IN COUNTERPARTS:
This EULA may be executed in one or more counterparts. Each counterpart will be an original, but all such counterparts will constitute a single instrument.
17. ACKNOWLEDGEMENT OF THIRD-PARTY SOFTWARE:
USER hereby acknowledges that the SOFTWARE uses or contains third party software components that require additional notices or are subject to additional terms and conditions. Such additional notices, terms, and conditions for the third-party software components may be expressly included in this Agreement, such as the Oracle Provisions provided in provisions 18.A through 18.I and the Microsoft Azure Provisions provided in provisions 19.A through 19.D herein. If there are any conflicts between this Agreement and the additional terms or conditions governing third party software components, those additional terms and conditions will control in connection with third party software.
18. ORACLE PROVISIONS:
This provision refers to Oracle America, Inc. (“ORACLE”).
A. RESTRICTIONS & LIMITATIONS
Use of the embedded database and related software programs contained within the SOFTWARE (collectively referred to as “ORACLE PROGRAMS”) shall be limited to the USER as specified in this EULA. USER hereby understands that the ORACLE PROGRAMS are subject to a restricted license, and the ORACLE PROGRAMS can only be used in conjunction with the SOFTWARE and that USER is not permitted to modify the ORACLE PROGRAMS. Use of the ORACLE PROGRAMS shall be restricted to the scope of the SOFTWARE and to the internal business operations of the USER. USER may permit its agents or contractors, including, without limitation, outsourcers, to use the SOFTWARE on the USER’s behalf for the USER’s internal business operations, subject to the terms of this EULA. USER shall be responsible for the USER’s agent’s, contractor’s, and/or outsourcer’s use of the SOFTWARE and compliance with this EULA.
B. PROHIBITED ACTIONS
USER shall be prohibited from (a) transferring the ORACLE PROGRAMS except for temporary transfer in the event of computer malfunction, and (b) assigning, giving, or transferring the ORACLE PROGRAMS or an interest in the ORACLE PROGRAMS to another individual or entity. In the event USER grants a security interest in the ORACLE PROGRAMS, the secured party has no right to use or transfer the ORACLE PROGRAMS.
USER shall be prohibited from use of the ORACLE PROGRAMS for rental, timesharing, subscription service, hosting, or outsourcing.
USER shall be prohibited from removing or modifying any ORACLE PROGRAMS markings or any notice of ORACLE’s or its licensors’ proprietary rights.
USER shall be prohibited from making the ORACLE PROGRAMS available in any manner to any third party for use in the third party’s business operations, unless such access is expressly permitted for in the relevant ORACLE PROGRAMS’ program license.
This Agreement does not convey title in the ORACLE PROGRAMS to the USER or any other party.
USER shall be prohibited from reverse engineering, unless required by law for interoperability, disassembly or decompilation of the ORACLE PROGRAMS. The foregoing prohibition includes, but is not limited to review of data structures and/or similar materials produced by ORACLE PROGRAMS. USER shall be prohibited from duplicating the ORACLE PROGRAMS except for a sufficient number of copies of each program for USER’s licensed use and one copy of each program media.
USER shall be prohibited from publishing any results of benchmark tests run on the ORACLE PROGRAMS.
C. EXPORT CONTROL
USER shall comply fully with all relevant export laws and regulations of the United States and other applicable export and import laws to assure that neither the ORACLE PROGRAMS, nor any direct product thereof, are exported, directly or indirectly, in violation of applicable laws.
D. ORACLE INTELLECTUAL PROPERTY
ORACLE, or its licensors, retains all ownership and intellectual property rights to the ORACLE PROGRAMS.
E. ORACLE’S ROLE IN AGREEMENT
USER hereby disclaims, to the extent permitted by applicable law, ORACLE’s liability for (a) any damages, whether direct, indirect, incidental, special, punitive or consequential, and (b) any loss of profits, revenue, data or data use, arising from the use of the ORACLE PROGRAMS. ORACLE is hereby designated as a third party beneficiary of this EULA. Nothing in this EULA shall require ORACLE to perform any obligations or incur any liability not previously agreed to between PEN-LINK and ORACLE.
F. UNIFORM COMPUTER INFORMATION TRASACTIONS ACT
The Uniform Computer Information Transactions Act shall not apply to this EULA, the SOFTWARE, any updates, any upgrades, the ORACLE PROGRAMS, or any associated documentation related hereto.
USER shall permit PEN-LINK to audit USER’s use of the ORACLE PROGRAMS, and USER shall provide reasonable assistance and access to information in the course of such audit and permit PEN-LINK to report the audit results to ORACLE or to assign its right to audit USER’s use of the ORACLE PROGRAMS to ORACLE. If PEN-LINK assigns its right to audit to ORACLE, then ORACLE shall not be responsible for any of PEN-LINK or USER’s costs incurred in cooperating with the audit.
H. TERMINATION OF AGREEMENT
USER shall discontinue use and destroy, or return, to PEN-LINK all copies of the ORACLE PROGRAMS and any ORACLE PROGRAMS’ documentation upon the termination of this EULA.
USER is hereby informed that some ORACLE PROGRAMS may include source code that ORACLE may provide as part of its standard shipment of such programs. The source code shall be governed by the terms of this EULA. Further, third party technology that may be appropriate or necessary for use with some ORACLE PROGRAMS is specified in the SOFTWARE documentation or as otherwise notified by PEN-LINK, and such third party technology is licensed to USER only for use with the SOFTWARE under the terms of the third party license agreement specified in the SOFTWARE documentation or as otherwise notified by PEN-LINK and not under the terms of this EULA.
19. MICROSOFT AZURE PROVISIONS:
This provision refers to Microsoft Corporation (“Microsoft”).
A. RESTRICTIONS & LIMITATIONS
Use of the Microsoft Azure Cognitive Services in conjunction with the SOFTWARE (collectively referred to as “MICROSOFT PROGRAMS”) shall be limited to the USER as specified in this EULA. USER hereby understands that the MICROSOFT PROGRAMS are subject to a restricted license. The MICROSOFT PROGRAMS are neither sold to USER nor distributed to USER, and the MICROSOFT PROGRAMS can only be used in conjunction with the SOFTWARE. USER is not permitted to modify the MICROSOFT PROGRAMS. Use of the MICROSOFT PROGRAMS shall be restricted to the scope of the SOFTWARE and to the internal business operations of the USER. USER may permit its agents or contractors, including, without limitation, outsourcers, to use the SOFTWARE on the USER’s behalf for the USER’s internal business operations, subject to the terms of this EULA. USER shall be responsible for the USER’s agent’s, contractor’s, and/or outsourcer’s use of the SOFTWARE and compliance with this EULA.
B. PROHIBITED ACTIONS
USER shall be prohibited from (a) transferring or using the MICROSOFT PROGRAMS outside of the SOFTWARE, and (b) assigning, giving, or transferring the MICROSOFT PROGRAMS or an interest in the MICROSOFT PROGRAMS to another individual or entity.
USER shall be prohibited from reverse engineering, decompiling, or disassembling the MICROSOFT PROGRAMS, except to the extent expressly permitted by applicable law.
USER shall be prohibited from removing, modifying, or obscuring any copyright, trademark, or other proprietary rights notices that are contained in or on the MICROSOFT PROGRAMS.
USER shall be prohibited from renting, leasing, lending, reselling, transferring, or hosting the MICROSOFT PROGRAMS, or any portion thereof, to or for third parties except as expressly permitted in this EULA.
This Agreement does not convey title in the MICROSOFT PROGRAMS to the USER or any other party.
C. EXPORT CONTROL
USER shall comply fully with all relevant export laws and regulations of the United States and other applicable export and import laws to assure that neither the MICROSOFT PROGRAMS, nor any direct product thereof, are exported, directly or indirectly, in violation of applicable laws.
D. MICROSOFT’S ROLE IN AGREEMENT
The MICROSOFT PROGRAMS are provided “as is.” USER bears the risk of using the MICROSOFT PROGRAMS. MICROSOFT disclaims, to the extent permitted by applicable law, all warranties by MICROSOFT and any liability by MICROSOFT or its suppliers for any damages, whether direct, indirect, or consequential, arising from the SOFTWARE. USER hereby disclaims, to the extent permitted by applicable law, MICROSOFT’s liability for (a) any damages, whether direct, indirect, incidental, special, punitive or consequential, and (b) any loss of profits, revenue, data or data use, arising from the use of the MICROSOFT PROGRAMS. MICROSOFT is hereby designated as a third-party beneficiary of provisions 19.A through 19.D of this EULA with the right enforce its provisions. MICROSOFT is not responsible for providing any support in connection with the SOFTWARE. Do not contact MICROSOFT for support. Nothing in this EULA shall require MICROSOFT to perform any obligations or incur any liability not previously agreed to between PEN-LINK and MICROSOFT.