RAPIDMATION PTY LTD
END USER LICENSE AND TECHNICAL SUPPORT AND MAINTENANCE AGREEMENT IMPORTANT—READ CAREFULLY:
This End User License and Technical Support and Maintenance Agreement (“EULA”) is a legal agreement between you (either an individual or a single entity) and rapidMATION Pty Ltd and its subsidiaries (collectively, “rapidMATION”) for rapidMATION’s software that you choose to install and use, which may include computer software, associated media, printed materials, and “online” or electronic documentation (collectively “Licensed Software”) as well as technical support and maintenance services for the Licensed Software (“Technical Support and Maintenance”) if acquired from rapidMATION. The Licensed Software also includes any updates and supplements to the original Licensed Software which may be provided to you by rapidMATION. Any software provided along with the Licensed Software that is associated with a separate end-user license agreement is licensed to you under the terms of that license agreement. By accepting this EULA, or installing, accessing or otherwise using the Licensed Software, you agree to be bound by the terms of this EULA, or, if you have entered into a separate written license agreement with rapidMATION regarding the Licensed Software and Technical Support and Maintenance, you agree to be bound by the terms of such agreement. For your future reference, you may print the text of the EULA.
If you do not agree to the terms of this EULA, do not install, access or use the Licensed Software or use Technical Support and Maintenance.
SOFTWARE AND TECHNICAL SUPPORT AND MAINTENANCE LICENSE
1. Grant of License; License Keys.
Grant. Under this EULA, rapidMATION grants to you a non-exclusive license to use the version of the Licensed Software provided to you by rapidMATION, and to receive Technical Support and Maintenance if acquired, solely for your own internal business purposes and subject to the terms of this EULA. Your use of the Licensed Software shall also be in accordance with the documentation for the Licensed Software and the applicable License Key and License Configuration as defined herein. Your license rights as specified herein are limited to a specified subscription period (“Subscription License”). You may allow your agents and contractors to use the Licensed Software for your internal business purposes and you are responsible for their compliance with the terms of this EULA in such use. Unless otherwise provided in this EULA, you may only make copies of the Licensed Software for archive purposes. The Licensed Software is deemed accepted when rapidMATION makes the Licensed Software available to you. If you are past due on any fees due to rapidMATION your rights to use the Licensed Software are suspended until such time as you have paid such outstanding fees.
License Keys. The Licensed Software may require an applicable license key in order to access its functionality (“License Key”). The Licensed Software may be initially provided to you with a trial or evaluation License Key which allows time-limited access to the Licensed Software with limited functionality until the License Key expires. In order to access the full functionality of the Licensed Software, each copy of the Licensed Software may require an applicable License Key issued by rapidMATION for a limited number of servers or users, specifically identified computers, fixed subscription period and/or other usage rights or limitations (“License Configuration”). You agree to be bound by the License Configuration terms which rapidMATION may present to you as part of licensing the Licensed Software.
All rights not expressly granted in this EULA are reserved by rapidMATION.
2. Other Rights and Limitations.
Limitations on Reverse Engineering, Decompilation, and Disassembly. You shall not cause or permit the reverse engineering, decompilation, or disassembly of the Licensed Software or any portion thereof, except and only to the extent that such activity is expressly permitted by applicable law.
Specific Use. All code and other materials provided with rapidMATION products may only be used with those specific rapidMATION products.
Marks. This EULA does not grant you any rights in connection with any trademarks or service marks of rapidMATION. You shall not remove or modify any Licensed Software markings or any notice of rapidMATION’s proprietary rights.
Third Party Use. You shall not rent, lease or lend the Licensed Software, or make the Licensed Software available in any manner to any third party for use in the third party’s business operations (unless such access is expressly permitted in writing by rapidMATION).
Actual License Limits. If you use software or hardware that (i) reduces the number of users directly accessing or utilizing the Licensed Software; (ii) allows you to exceed the number of servers for which the Licensed Software is licensed to you; or (iii) otherwise prevents the Licensed Software from keeping an accurate count of the number of users or servers actually accessing or utilizing the Licensed Software, you shall pay additional license fees to rapidMATION based on the actual number of users or servers using the Licensed Software or on which the Licensed Software is installed, as applicable.
Benchmarks and Competitive Use. You shall not disclose results of any Licensed Software benchmark tests without rapidMATION’s prior written consent. The Licensed Software may not be used for purposes of competitive analysis or development of a competitive product.
Proprietary Rights. All rights, title, interest and copyrights in and to the Licensed Software are owned by rapidMATION or its licensors.
3. Technical Support and Maintenance Services.
This EULA does not entitle you to receive any enhancements, improvements or modifications to the Licensed Software. rapidMATION may provide you with Technical Support and Maintenance if you have ordered such services from rapidMATION. Use of Technical Support and Maintenance is governed by the rapidMATION policies and programs in effect at the time such Technical Support and Maintenance is ordered. Any enhancements, improvements, modifications or other supplemental software provided to you as part of Technical Support and Maintenance shall be considered part of the Licensed Software and subject to the terms and conditions of this EULA. With respect to technical information you provide to rapidMATION as part of Technical Support and Maintenance, rapidMATION may use such information for its business purposes, including for product support and development.
4. Payment Terms.
Unless otherwise provided, all applicable fees are due net 14 days from the date of invoice. Once accepted by you, and except as otherwise specified, your order(s) to rapidMATION for Licensed Software, Technical Support and Maintenance and/or other rapidMATION products and services becomes a non-cancellable order, and the related fees become due and non-refundable. You shall pay any sales, value-added or other similar taxes, duties or charges imposed by applicable law that rapidMATION must pay based on the Licensed Software and/or Technical Support and Maintenance ordered by you, except for taxes based on rapidMATION’s income. You have not relied on the future availability of any software or updates in ordering or obtaining the Licensed Software from rapidMATION.
5. Warranties, Disclaimers and Exclusive Remedies.
Notwithstanding anything to the contrary, until you have obtained from rapidMATION an applicable License Key which allows for access to the full functionality of the Licensed Software (“Commercial License Key”), the Licensed Software is provided to you “as is” with no warranty of any kind.
If you have acquired a Subscription License for the Licensed Software, rapidMATION warrants for 90 days after the start of your subscription, or an annual renewal of such subscription, if applicable (“Subscription Warranty Period”) that the Licensed Software will function in all material respects as described in the documentation for the Licensed Software, subject to compliance with the License Configuration.
You must notify rapidMATION of any Licensed Software warranty deficiency during the applicable Warranty Period. rapidMATION also warrants that if you contracted and paid for Technical Support and Maintenance, it will be provided in a professional manner consistent with industry standards. You must notify rapidMATION of any Technical Support and Maintenance warranty deficiencies within 60 days of the performance of the deficient Technical Support and Maintenance.
RAPIDMATION DOES NOT WARRANT OR GUARANTEE THAT THE LICENSED SOFTWARE WILL MEET YOUR REQUIREMENTS, WILL OPERATE ERROR-FREE OR UNINTERRUPTED OR THAT RAPIDMATION WILL CORRECT ALL ERRORS IN THE LICENSED SOFTWARE. TO THE EXTENT PERMITTED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND RAPIDMATION EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING WARRANTIES OR CONDITIONS OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.
FOR ANY BREACH OF THE ABOVE WARRANTIES, YOUR EXCLUSIVE REMEDY AND RAPIDMATION’S ENTIRE LIABILITY, SHALL BE, AT RAPIDMATION’S DISCRETION, AS APPLICABLE, FOR THE LICENSED SOFTWARE, (A) THE CORRECTION OF ERRORS IN THE LICENSED SOFTWARE THAT CAUSE BREACH OF THE WARRANTY; OR (B) TERMINATION OF YOUR LICENSE FOR THE LICENSED SOFTWARE AND REFUND OF THE FEES YOU PAID TO RAPIDMATION FOR THE SPECIFIC LICENSED SOFTWARE (IN THE CASE OF SUBSCRIPTIONS, SUCH REFUND SHALL BE LIMITED TO THE THEN- CURRENT SUBSCRIPTION PERIOD) AND ANY UNUSED, PREPAID TECHNICAL SUPPORT AND MAINTENANCE FEES YOU HAVE PAID FOR THE SPECIFIC LICENSED SOFTWARE; AND FOR TECHNICAL SUPPORT AND MAINTENANCE, (Y) THE REPERFORMANCE OF DEFICIENT TECHNICAL SUPPORT AND MAINTENANCE; OR (Z) TERMINATION OF THE RELEVANT TECHNICAL SUPPORT AND MAINTENANCE AND REFUND ANY UNUSED PREPAID TECHNICAL SUPPORT AND MAINTENANCE FEES YOU HAVE PAID TO RAPIDMATION FOR THE DEFICIENT TECHNICAL SUPPORT AND MAINTENANCE.
6. Limitation of Liability.
RAPIDMATION SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF PROFITS, REVENUE, DATA OR DATA USE, ARISING FROM THIS EULA OR FROM THE USE OF OR INABILITY TO USE THE LICENSED SOFTWARE OR THE PROVISION OF OR FAILURE TO PROVIDE TECHNICAL SUPPORT AND MAINTENANCE, EVEN IF RAPIDMATION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR DEATH OR PERSONAL INJURY TO PERSONS CAUSED BY THE NEGLIGENCE OF RAPIDMATION (WHERE NO LIMIT APPLIES), RAPIDMATION’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS EULA, THE USE OF THE LICENSED SOFTWARE OR TECHNICAL SUPPORT AND MAINTENANCE, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL BE LIMITED TO THE FEES YOU PAID TO RAPIDMATION FOR THE DEFICIENT LICENSED SOFTWARE OR TECHNICAL SUPPORT AND MAINTENANCE UNDER THIS EULA. Except for actions relating to death or personal injury to persons caused by the negligence of rapidMATION, no action, regardless of form, arising out of or relating to this EULA or the Licensed Software may be brought by you against rapidMATION more than two years after the cause of action has accrued.
This EULA and your license to use the Licensed Software shall terminate automatically if you fail to comply with the terms of this EULA. No notice will be required by rapidMATION to effect a termination. If this EULA is terminated, you shall pay within 30 days all amounts owed to rapidMATION which have accrued prior to the end of this EULA. If you are in default of this EULA, or if the EULA is terminated, you may no longer use or continue to possess the Licensed Software. Notwithstanding anything to the contrary, your license to the Licensed Software will terminate immediately if you become insolvent or bankrupt or enter into any arrangement or composition with your creditors or if a receiver, trustee or administrator is appointed to operate or otherwise direct your business or assets. Provisions of this EULA which survive termination or expiration include those relating to limitation of liability, infringement indemnity, payment and others which by their nature are intended to survive.
rapidMATION: If someone makes a claim against you that the Licensed Software provided to you by rapidMATION under this EULA and used by you according to the documentation for the Licensed Software infringes that party’s intellectual property rights, rapidMATION will defend, indemnify and hold you harmless against the claim provided you: (a) notify rapidMATION promptly in writing, not later than 30 days after you receive notice of the claim; (b) give rapidMATION sole control of the defense and any settlement negotiations; and (c) give rapidMATION the information, assistance and authority as required to defend against or settle the claim. If rapidMATION believes or it is determined that the Licensed Software may have violated someone else’s intellectual property rights, rapidMATION may choose in its discretion to: (i) modify the Licensed Software to be non-infringing; (ii) obtain a license for you to allow for continued use; or (iii) terminate the license for the Licensed Software and require its return, and refund a prorated (based on a five year life) portion of any fees you may have paid for the Licensed Software. rapidMATION has no obligation to indemnify, defend or hold you harmless: (A) if you alter the Licensed Software or use it outside the scope of the License Configuration, this EULA or the use permitted by the Licensed Software documentation; (B) if you continue to use a version of the Licensed Software which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Licensed Software which was provided to you; (C) to the extent that an infringement claim is based upon any software, design, specification, instruction, data or other material not furnished by rapidMATION; or (D) to the extent an infringement claim is based upon the combination of the Licensed Software with any products or services not provided to you by rapidMATION. This section provides your exclusive remedies and rapidMATION’s exclusive liability for any infringement claim or damages. rapidMATION under this EULA and used by you according to the documentation for the Licensed Software infringes that party’s intellectual property rights, rapidMATION will defend, indemnify and hold you harmless against the claim provided you: (a) notify rapidMATION promptly in writing, not later than 30 days after you receive notice of the claim; (b) give rapidMATION sole control of the defense and any settlement negotiations; and (c) give rapidMATION the information, assistance and authority as required to defend against or settle the claim. If rapidMATION believes or it is determined that the Licensed Software may have violated someone else’s intellectual property rights, rapidMATION may choose in its discretion to: (i) modify the Licensed Software to be non-infringing; (ii) obtain a license for you to allow for continued use; or (iii) terminate the license for the Licensed Software and require its return, and refund a prorated (based on a five year life) portion of any fees you may have paid for the Licensed Software. rapidMATION has no obligation to indemnify, defend or hold you harmless: (A) if you alter the Licensed Software or use it outside the scope of the License Configuration, this EULA or the use permitted by the Licensed Software documentation; (B) if you continue to use a version of the Licensed Software which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Licensed Software which was provided to you; (C) to the extent that an infringement claim is based upon any software, design, specification, instruction, data or other material not furnished by rapidMATION; or (D) to the extent an infringement claim is based upon the combination of the Licensed Software with any products or services not provided to you by rapidMATION. This section provides your exclusive remedies and rapidMATION’s exclusive liability for any infringement claim or damages.
Customer: You will defend, indemnify and hold rapidMATION and its licensors harmless against: (a) any claims or actions by any third party (including any of your customers) in connection with the Licensed Software or your use thereof, or this EULA, except with respect to matters which are covered by rapidMATION’s indemnification obligations as provided above; and (b) any loss or damage arising from a breach by you of this EULA, or any action of any of your agents or contractors with respect to the Licensed Software for which you are responsible under this EULA.
By virtue of this EULA, you may have access to information that is confidential to rapidMATION (“Confidential Information”), including the Licensed Software, terms and pricing under this EULA, any other documents from rapidMATION regarding the Licensed Software and/or this EULA, and all information clearly identified as confidential. You agree to keep such Confidential Information confidential and not to disclose such information to third parties without the express written consent of rapidMATION.
10. Governing Law and Jurisdiction.
This Agreement shall be construed and controlled by the laws of New South Wales, Australia, and Customer consents to exclusive jurisdiction and venue in the courts located in New South Wales, Australia. Customer waives all defenses of lack of personal jurisdiction and forum non-conveniens. Process may be served on either party in the manner authorized by applicable law or court rule. In any action to enforce any right or remedy under this Agreement or to interpret any provision of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees, costs and other expenses. If you have a dispute with rapidMATION or if you wish to provide a notice under the Indemnification section of this EULA, or if you become subject to insolvency or other similar legal proceedings, you will promptly send written notice to rapidMATION.
Communications. All notices and requests in connection with this EULA shall be deemed given as of the day they are received in writing either by messenger, delivery service, or in the mail, postage prepaid, certified or registered, return receipt requested. Billing-related notices to you shall be addressed to the applicable billing contact as designated by you. All other notices to you shall be addressed to the applicable contact as designated by you. By accepting this EULA, you explicitly agree rapidMATION is permitted to send you future electronic communications regarding rapidMATION products, services and other offerings.
Audit. Upon 30 days written notice, rapidMATION may audit your use of the Licensed Software. You shall cooperate with rapidMATION’s audit and provide reasonable assistance and access to information. You shall pay within 30 days of written notification any fees applicable to your use of the Licensed Software in excess of your license rights. If you do not pay, rapidMATION can terminate your Technical Support and Maintenance, licenses for the Licensed Software and/or this EULA. rapidMATION shall not be responsible for any of your costs incurred in cooperating with the audit. You shall pay the reasonable costs of such audit if the audit reveals you have exceeded your license rights.
U.S. Government Restricted Rights. All Licensed Software provided to the U.S. Government pursuant to solicitations issued on or after December 1, 1995 is provided with the commercial rights and restrictions described elsewhere herein. All Licensed Software provided to the U.S. Government pursuant to solicitations issued prior to December 1, 1995 is provided with RESTRICTED RIGHTS as provided for in FAR, 48 CFR 52.227-14 (JUNE 1987) or FAR, 48 CFR 252.227-7013 (OCT 1988), as applicable.
Export Restrictions. You acknowledge that the Licensed Software is subject to U.S. export jurisdiction. You shall comply with all applicable international and national laws that apply to the Licensed Software, including the U.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments.
Transfer Restrictions. You shall not assign or otherwise transfer this EULA or any portion of the Licensed Software, or any copies thereof or any of your interests in any of the foregoing, without rapidMATION’s prior written consent. For purposes of this EULA, a merger, consolidation or other corporate reorganization or a transfer or sale of a controlling interest in your stock, or all or substantially all of your assets, shall be deemed to be an assignment. This EULA will inure to the benefit of and be binding upon the parties, their successors, administrators, heirs and permitted assigns.
Force Majeure. Neither of us shall be responsible for failure or delay of performance if caused by: an act of war, hostility or sabotage; act of God; Internet, telecommunication or electrical outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated party (collectively, “Force Majeure Events”). We both will use reasonable efforts to mitigate the effect of any Force Majeure Events. If such Force Majeure Event continues for more than 90 days, either of us may cancel unperformed services upon written notice. This section does not excuse your obligation to pay for Licensed Software or Technical Support and Maintenance as provided.
Use of Licensee Name. You agree rapidMATION may include your company name in lists, presentations, webpages and/or displays used by rapidMATION which generally describe similar customers of rapidMATION.
Entire Agreement. This EULA and the information which is incorporated into this EULA by written reference (including reference to information contained in a URL or referenced policy), together with the applicable rapidMATION ordering document, is the complete agreement for the Licensed Software and/or Technical Support and Maintenance provided to you, and this EULA supersedes all prior or contemporaneous agreements or representations, written or oral, regarding such Licensed Software and/or Technical Support and Maintenance. THE TERMS OF THIS EULA AND ANY CORRESPONDING RAPIDMATION ORDERING DOCUMENT SHALL SUPERSEDE THE TERMS CONTAINED IN ANY PURCHASE ORDER OR OTHER NON-RAPIDMATION ORDERING DOCUMENT OR CORRESPONDENCE, REGARDLESS OF WHEN SUCH ORDERING DOCUMENT IS RECEIVED OR IF RAPIDMATION SIGNS SUCH ORDERING DOCUMENT, AND NO TERMS INCLUDED IN ANY SUCH PURCHASE ORDER OR OTHER NON-RAPIDMATION ORDERING DOCUMENT OR CORRESPONDENCE SHALL APPLY TO RAPIDMATION OR TO THE LICENSED SOFTWARE OR TECHNICAL SUPPORT AND MAINTENANCE. If any term of this EULA is found to be invalid or unenforceable, the remaining provisions will continue in effect. This EULA and rapidMATION ordering documents shall not be modified and the rights and restrictions contained therein shall not be altered or waived except in a writing signed by authorized representatives of you and of rapidMATION.