Software End User License Agreement – v1.0 5/25/17
By downloading, installing, copying, accessing or using this software, you agree to the terms of this end user license agreement. If you are accepting these terms on behalf of another person or company or other legal entity, you represent and warrant that you have full authority to bind that person, company or legal entity to these terms.
1) License Grant; Proprietary Rights
- a) Subject to the terms and conditions of this Agreement, CCAT hereby grants to you a non-exclusive, non-transferable right to use the Software (for the purposes of this Agreement, to use the Software includes to download, install, and access the Software) listed in the Proposal solely for your own internal business operations. You are not granted rights to updates and upgrades unless detailed in your Proposal or subsequent Proposal.
- b) The Software, including, without limitation, its object code and source code, whether or not provided to you, is strictly confidential to CCAT. CCAT (or its licensors) owns exclusively and reserves all – and you may not exercise any – right, title and interest in and to the Software, including, without limitation all intellectual property rights in and to the Software, except to the extent of the limited Software use license granted to in this Agreement. This Agreement is not an agreement of sale, and no title, intellectual property rights or ownership rights are transferred pursuant to this Agreement. You acknowledge and agree that the Software and all ideas, methods, algorithms, formulae, processes, and concepts used in developing or incorporated into the Software, all future Updates and Upgrades, and all other improvements, revisions, corrections, bug-fixes, hot-fixes, patches, modifications, enhancements, releases, DATs, signature sets, upgrades, and policy and database updates, and other updates in, of, or to the Software, all derivative works based upon any of the foregoing, and all copies of the foregoing are trade secrets and proprietary property of CCAT, having great commercial value to CCAT.
2) Copy and Use Terms:
- a) Multiple Platforms/Bundles: If the Software supports multiple platforms or if you receive the software bundled with other Software, the total number of devices on which all versions of the Software is installed may not exceed your product entitlement. Certain Software licensed as part of a suite-based CCAT product may also require the purchase of a separate CCAT server license in order to use the Software on certain types of servers, in each case as specified in the Proposal.
- b) Term: The license is effective for a limited period of time (“Term”) as set forth in the Proposal.
- c) Copies: You may copy the Software as reasonably necessary for back-up, archival or disaster recovery purposes
- d) Subsidiaries; Managing Parties: You may permit the use of the Software in accordance with the terms of this Agreement by a Subsidiary only for so long as such entity remains your Subsidiary. You also may permit a third party with which you enter into a contract to manage your information technology resources (“Managing Party”), provided that (i) that Managing Party only uses the Software for your internal operations and not or the benefit of another third party or the Managing Party, (ii) the Managing Party agrees to comply with the terms and conditions of this Agreement and (iii) you provide CCAT with written notice that a Managing Party will be using the Software on your behalf. You shall be responsible and fully liable for each Subsidiary’s and Managing Party’s compliance with or breach of the terms of this Agreement.
- e) General Restrictions: You may not, and you may not cause or allow any third party to: (i) decompile, disassemble or reverse-engineer the Software; or create or recreate the source code for the Software; (ii) remove, erase, obscure, or tamper with any copy right or any other product identification or proprietary rights notices, seal, instructional label printed or stamped on, affixed to, or encoded or recorded in or on any Software; or fail to preserve all copyright and other proprietary notices in all copies of the Software made by you; (iii) lease, lend, or use the Software for timesharing or service bureau purposes; sell market, license, sublicense, distribute, or otherwise grant to any person or entity any right to use the Software except to the extent expressly permitted in this Agreement, or use the Software to provide, alone or in combination with any other product or service, any product or service to any person or entity, whether on a fee basis or otherwise; (iv) modify, adapt, tamper with, translate, or create derivative works of the Software; combine or merge any part of the Software with or into any other software or documentation; or refer to or otherwise use the Software as part of any effort to develop software (including, without limitation, any routine, script, code, or program) having functional attributes, visual expressions, or other features similar to those of the Software or to compete with CCAT; (v) except with CCAT’s prior written permission, publish any performance or benchmark test or analysis relating to the Software; or (vi) attempt to do any of the foregoing. You may not run or operate the Software in a cloud, Internet-based computing, or similar on-demand computing environment unless your Proposal specifically provides such.
3) Technical Support and Maintenance:
CCAT’s standard terms and conditions contained within your Proposal apply to any technical support and maintenance purchased as outlined and referenced in your Proposal.
4) Limited Warranty and Disclaimer:
- a) Limited Warranty: CCAT will provide a limited warranty on the Software for the period of time that any hosting and maintenance contract is in effect.
- b) Exclusive Remedy: In case of any breach of the above Limited Warranty, as your exclusive remedy and CCAT’s entire obligation and liability CCAT will (i) repair or replace the Software or (ii) if such repair or replacement would in CCAT’s opinion be commercially unreasonable, upon CCAT’s receipt of your written representation and promise that you have removed all instances of the Software and will not use the Software, refund the price paid by you for the applicable Software.
- c) Exclusion of Warranty: THE ABOVE LIMITED WARRANTY WILL NOT APPLY IF: (i) THE SOFTWARE IS NOT USED IN ACCORDANCE WITH THIS AGREEMENT OR THE DOCUMENTATION, (ii) THE SOFTWARE OR ANY PART THEREOF HAS BEEN MODIFIED BY ANY ENTITY OTHER THAN CCAT OR (iii) A MALFUNCTION IN THE SOFTWARE HAS BEEN CAUSED BY ANY EQUIPMENT OR SOFTWARE NOT SUPPLIED BY CCAT.
- d) Disclaimer: EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE, THE SOFTWARE IS PROVIDED “AS IS” AND CCAT MAKES NO REPRESENTATIONS OR WARRANTIES, AND CCAT DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS, ORAL OR WRITTEN, EXPRESS OR IMPLIED, ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN TRADE, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR SYSTEMS INTEGRATION, WITHOUT LIMITING THE FOREGOING, CCAT MAKES NO WARRANTY REPRESENTATION OR GUARANTEE THAT THE OPERATION OF THE SOFTWARE WILL BE FAILSAFE, UNINTERRUPTED, OR FREE FROM ERROR OR DEFECTS OR THAT THE SOFTWARE WILL PROTECT AGAINST ALL POSSIBLE THREATS.
- e) High Risk Systems Terms: THE SOFTWARE MAY FAIL AND IS NOT DESIGNED, DEVELOPED, TESTED, OR INTENDED TO BE RELIABLE IN THE CONTEXT OF HIGH RISK SYSTEM. WITHOUT LIMITING ANYTHING ELSE, CCAT HAS NO RESPONSIBILITY FOR, AND CLIENT WILL INDEMNIFY AND HOLD HARMLESS CCAT FROM, ALL CLAIMS, SUITS, DEMANDS, AND PROCEEDINGS ALLEGING, CLAIMING, SEEKING, OR ASSERTING, ANY LIABILITY, LOSS, OBLIGATION, RISK COST, DAMAGE, AWARDED, PENALTY, SETTLEMENT, JUDGMENT, FINE, OR EXPENSES, (INCLUDING ATTORNEY’S FEES) ARISING FROM OR IN CONNECTION WITH CLINET’S USE OF THE SOFTWARE ON OR IN A HIGH RISK SYSTEM, INCLUDING, WITHOUT LIMITATION, THOSE THAT (i) COULD HAVE BEEN PREVENTED BY DEPLOYMENT OF A FAILSAFE OR FAULT-TOLERANT FEATURES TO THE HIGH RISK SYSTEM, (ii) ARE BASED ON A CLAIM, ALLEGATION, OR ASSERTION THAT THE FUNCTIONING OF THE HIGH RISK SYSTEM DEPENDS OR DEPENDED ON THE FUNCTIONING OF THE SOFTWARE OR THAT THE FAILURE OF THE SOFTWARE CAUSED A HIGH RISK SYSTEM TO FAIL.
5) Intellectual Property Indemnity
- a) CCAT will indemnify, and, at its election, defend, you against claims asserted against you in a suit or action if: (i) the claim is for direct patent infringement or direct copyright infringement, or for CCAT’S trade secret misappropriation and (ii) the claim is (A) asserted against the Software, alone and not in combination with anything or (B) a combination of the Software.
- b) Exclusions: Notwithstanding anything else in this Agreement, CCAT has no obligation to indemnify or defend you for claims asserted in whole or in part, against: (i) technology or designs that you gave to CCAT, (ii) modifications or programming to Software that were made by anyone other than CCAT; or (iii) the Software’s alleged implementation or some or all of a Standard.
- c) Conditions: As a condition of CCAT’s obligations under this section, you must provide to CCAT: (i) prompt written notice of the claim and your agreement to give CCAT sole control over the defense and settlement of the claim, and (ii) your full and timely cooperation.
- d) CCAT’s Consent: CCAT will not be responsible for any cost, expense, or compromise that you make or incur without CCAT’s prior written consent.
- e) Remedies: CCAT may, at its sole discretion and as its expense: (i) procure for you the right to continue using the Software; (ii) replace the Software with a non-infringing Software; (iii) modify the Software so that it becomes non-infringing; or (iv)upon your return of the Software to CCAT, and/or removal of the Software from your systems, refund the residual value of the purchase price paid by you for the infringing Software, depreciated using a straight-line method of depreciation over a three (3) year period from the date of delivery of the Software to you.
- f) Personal Indemnity: The foregoing indemnity is personal to you. You may not transfer to anyone, including your customer.
- g) Exclusive Remedy: The indemnity section states CCAT’s entire obligation and your exclusive remedy for claims of patent or copyright infringement, or trade secret misappropriation, made in whole or part against the Software.
Either Party may terminate this Agreement upon thirty (30) days written notice to the other party. Without prejudice to your payment obligations, you may terminate your license at any time by uninstalling the Software. Upon such termination, you shall promptly return or destroy all copies of the Software and Documentation.
7) Additional Terms:
- a) Demonstration Instances: If the Software has been identified by CCAT as “Demonstration Instances”, then the provisions of this section apply and shall supersede any other conflicting term of this Agreement. Your royalty-free, non-transferable, limited license to use the Demonstration Instance, for evaluation purposes only, is limited to thirty (30) days unless otherwise agreed to in writing by CCAT. The Demonstration Instance may contain errors or other problems that could cause the system or other failures and data loss. Consequently, Demonstration Instances are provided to you “AS IS” and CCAT disclaims any warranty or liability obligations to you of any kind. Support is not available for Demonstration Instances. Any information about the Demonstration Instance gathered from its use shall be used solely for evaluation purposes and shall not be provided to third parties. The restrictions described in Section 3(f) apply.
- b) Beta Software: If the Software has been identified as “Beta” Software, then the provisions of Section 8(a) above shall apply accordingly. CCAT has no obligation to you to further develop or publicly release the Beta Software. Support is not available for Beta Software. If requested by CCAT, you will provide feedback to CCAT regarding testing and use of the Beta Software, including error or bug reports. You agree to grant CCAT a perpetual, non-exclusive, royalty-free, worldwide license to use, copy, distribute, and make derivative works and incorporate the feedback into any CCAT product at CCAT’s sole discretion.
- c) “Free” or “Open-Source” Software: The Software may include components (including, without limitation, programs, applications, tools, utilities, libraries, and other programming code) that are made available from third parties under a free or open source software licensing model (“FOSS Code”). FOSS Code components included with the Software are redistributed by CCAT under the terms of the applicable FOSS Code licenses for such component; your receipt of FOSS Code components from CCAT under this Agreement neither enlarges nor curtails your rights or obligations defined by the FOSS Code license applicable to the FOSS Code component. Copies of the FOSS Code licenses for FOSS Code components included with the Software are included with or referenced in the Software’s Documentation.
8) Notice to Government End users:
The Software and accompanying Documentation are deemed to be “commercial computer software” and “commercial computer software documentation”, respectively, pursuant to DFAR section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the software and accompanying Documentation by the United States Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.
9) Privacy and Collection of Personal System Information:
- a) The Software, Support, or service subscription may employ applications and tools to collect personally identifiable, sensitive or other information about you and users, their computers, files stored on their computers, or their computers interactions with other computers (“Data”).
- b) The collection of this Data may be necessary to provide you and users with the relevant Software, Support or service subscription functionalities as ordered, to enable CCAT to improve our Software, Support, or service subscription, and to further or improve overall security for you and users. You may be required to uninstall the Software or disable Support or its service subscription to stop further Data collection that supports these functions.
Upon thirty (30) days’ prior written notice CCAT may request, and you must provide, a Software-facilitated system-generated report (the “System Report”) verifying your Software deployment. You acknowledge that the System Report is based on technological features of the Software that provide Software deployment verification. If the Software does not contain technological features that provide Software deployment verification, you will prepare and provide to CCAT within the thirty (30) day period and accurate Software deployment verification report for the Software. CCAT will only request the System Report (or your prepared Software deployment verification report) one time per year and will not unreasonably interfere with the conduct of your business. However, if a System Report or your prepared Software deployment verification report identifies that you are out of compliance with the license terms of this Agreement, you will be required to purchase the additional licenses and pay any reinstatement fees associated with the licenses and/or support and an out-of-compliance fee may also be assessed.
You acknowledge that the Software may be subject to U.S. export regulations. You shall comply with all applicable export and import laws and regulations for the jurisdiction in which the Software will be imported and/or exported. You shall not export the Software to any individual, entity, or country prohibited by applicable law or regulation. You are responsible, at your own expense, for any local government permits, license or approvals required for importing and/or exporting the Software.
12) Governing Law:
This Agreement shall be interpreted under and governed by the laws of the State of Connecticut. The venue for resolution of any disputes under this Agreement shall be in Hartford County, Connecticut.
The Client and its employees and representatives shall at all times comply with all applicable laws, ordinances, statutes, rules, regulations and orders of governmental authorities, including those having jurisdiction over its registration and licensing to perform services under this Agreement.
13) Arbitration of Disputes:
Any controversy or claim arising out of or relating to this contract, or breach thereof, shall be settled by binding arbitration administered in Hartford, Connecticut, or a mutually agreed suburb thereof, by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on any award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
CLIENT AGREES THAT CCAT’S ENTIRE LIABILITY, AND CLIENT’S EXCLUSIVE REMEDY, IN LAW, IN EQUITY, OR OTHERWISE, WITH RESPECT TO ANY SERVICES PROVIDED UNDER THIS AGREEMENT AND/OR FOR ANY BREACH OF THIS AGREEMENT IS SOLELY LIMITED TO THE AMOUNT THAT CLIENT PAID FOR SUCH SERVICES DURING THE TERM OF THIS AGREEMENT. IN NO EVENT SHALL CCAT, ITS LICENSORS AND ASSIGNEES, BE LIABLE FOR ANY INDIRECT, INCIDENTAL SPECIAL, CONSEQUENTIAL DAMAGES EVEN IF CLIENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT THAT A STATE DOES NOT PERMIT THE EXCLUSION OR LIMITATION OF LIABILITY AS SET FORTH HEREIN CCAT’S LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW IN SUCH STATES.
15) Confidential Information:
Each Party acknowledges that confidential information or material of a commercial value (“Confidential Information”), including but not limited to product/service specifications, prototypes, computer files and programs, models, drawings, marketing plans, financial data, source code, trade secrets, copyrighted material HIPPA protected information, and other information, whether in tangible or intangible form, pertaining to the business of a party, its employees, contractors, clients and/or business associates, has or will come into the possession or knowledge of each party in connection with this Agreement or the performance hereof. Each party further acknowledges that the Confidential Information represents confidential and proprietary trade secrets, whose disclosure to or use by third parties will be damaging to the owner thereof. Each party agrees to hold the other’s Confidential Information in strictest confidence, not make use thereof other than for the performance of this Agreement, to release it only to those persons in their respective organizations requiring such information for the purposes of this Agreement, and not to release or disclose it to any third party without the other party’s consent. These restrictions shall not be construed to apply to information a) generally available to the public; b) released by a disclosing party generally without restriction; c) independently developed or acquired by a party or its personnel without reliance in any way on Confidential Information of the other party; d) approved in writing for use and disclosure by the disclosing party, or its personnel, without restriction; or e) required to be disclosed by law or order of a court or other authority of competent jurisdiction, PROVIDED THAT the disclosing party provides the non-disclosing party notice of such required disclosure sufficiently in advance of the intended disclosure to permit the non-disclosing party to take action to prevent such disclosure if the non-disclosing party so deems necessary.
Neither this Agreement, nor any duties or obligations under this Agreement may be assigned by Client or CCAT without the prior written consent of the other party.
- Force Majeure:
CCAT shall not be liable for its delay or failure in performing under this Agreement due to conditions or events beyond CCAT’s reasonable control, including, without limitation, natural disasters, accidents, power outages, equipment failure, labor disputes or shortages, governmental laws, ordinances, rules and regulations and inability to obtain material, equipment or transportation. If due to any such condition or event, CCAT is unable to supply the Services or Products ordered by Client and some or all of CCAT’s other clients, CCAT shall have the right to allocate Services and Products among its clients in such manner as CCAT in its sole discretion deems fair and equitable.
- Method of Performing Services:
It is the express intention of the parties that CCAT is an independent contractor and not an employee, agent, joint venture or partner of the Client. Nothing in this agreement shall be interpreted or construed as creating or establishing the relationship pf employer and employee between CCAT and the Client or any employee or agent of CCAT. Both parties acknowledge that CCAT is not an employee for federal or state tax purposes. CCAT shall retain the right to perform services for others during the term of this agreement. CCAT shall use CCAT’s own discretion in performing the tasks assigned, subject to the general direction of the Client and subject to the express condition that CCAT shall at all times comply with applicable law.
- Place of Work:
The parties agree that the nature of some of the services to be performed by CCAT will necessitate that the services be performed on Client’s premises or at other locations designated by Client. Client therefore agrees to furnish space on such premises for use by CCAT while performing these services.
- Limitation of Authority:
This Agreement does not authorize CCAT to execute any agreements, sign any checks, or bind Client in any manner, or make any changes or incur or assume any obligations, liabilities, or responsibilities of Client or to perform any other act in the name of, or on behalf of Client other than in accordance with the terms and conditions contained herein.