END USER LICENSE AGREEMENT
IMPORTANT – READ CAREFULLY: BY DOWNLOADING, INSTALLING OR RECEIVING THIS SOFTWARE OR OTHER MATERIALS PROVIDED BY TRICERAT, INC. (“TRICERAT”), YOU ACKNOWLEDGE THAT YOU HAVE READ THIS END USER LICENSE AGREEMENT (“AGREEMENT”), THAT YOU UNDERSTAND IT, AND THAT YOU AGREE TO BE BOUND BY ITS TERMS. TRICERAT IS WILLING TO LICENSE THE LICENSED TECHNOLOGY (AS DEFINED HEREIN) TO YOU OR THE ENTITY OR BUSINESS FOR WHICH YOU ARE INSTALLING THIS SOFTWARE (“LICENSEE”) ONLY UPON THE CONDITION THAT LICENSEE ACCEPTS ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT. IF LICENSEE DOES NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN LICENSEE SHOULD PROMPTLY EXIT THIS PAGE WITHOUT DOWNLOADING, INSTALLING OR RECEIVING THE LICENSED TECHNOLOGY.
“Documentation” means any technical instructions or other documentation related to the Software available at Tricerat’s website and provided to Licensee pursuant to this Agreement.
“Licensed Technology” means the Software, the Documentation and any related intellectual property rights, including without limitation, patents, trademarks, trade secrets and trademarks.
“Software” means any software available at Tricerat’s website and provided to Licensee pursuant to this Agreement.
“Subscription Period” means the time during which Tricerat’s Licensed Technology is made available to Licensee in the applicable transaction documents.
2. Grant of License. Subject to and conditioned upon Licensee’s payment of all applicable license fees and Licensee’s compliance with the terms and conditions set forth in this Agreement, Tricerat grants to Licensee a non-exclusive, non-sublicenseable, non-transferable right and limited use license during the term hereof (i) to download, install, use and execute one (1) copy of the Licensed Technology on its own separate and unique computer owned by Licensee, subject to the number of licenses purchased; (ii) to make one (1) copy of the Software solely for backup and archival purposes; and (iii) to make a reasonable number of copies of the Documentation solely for Licensee’s internal business purposes.
3.1.1 Under a subscription model, you agree that Tricerat is authorized to charge you an annual subscription fee for the Licensed Technology. Your subscription will automatically renew prior to the end of the then current Subscription Period, unless you cancel your subscription thirty (30) days before the end of the current Subscription Period. Cancellation will take effect the day after the last day of the current Subscription Period. If you cancel your payment and/or terminate the Terms after the current Subscription Period has begun, we will not refund any subscription fees already paid to us.
3.1.2 For each Subscription License purchased, Tricerat provides Licensee with access to the Software; access to updates, upgrades, corrections, security advisories and bug fixes for the software, if and when available, and access to support (“Maintenance Support”).
3.1.3 Once a Subscription has either lapsed or been terminated, use of the Licensed Technology beyond the applicable Subscription Period, or any attempt to defeat any time-control disabling function in the Licensed Technology, is an unauthorized use and constitutes a material breach of this EULA and applicable law.
3.1.4 Tricerat reserves the right to increase or decrease the fees of subscriptions from time to time, and will communicate any changes to you. Fee changes for subscriptions will take effect at the start of the next subscription period following the date of the price change. By continuing to use Tricerat’s products and services after the price change takes effect, we will deem you to have accepted the new terms. If Licensee adds Licenses of Licensed Technology in the middle of a billing month, Licensee may be charged in full for that billing month.
3.2.1 Under the Perpetual license model, subject to the terms and conditions of the Agreement, the End User has a perpetual license to the applicable Licensed Technology. This license is limited to the version of the Software delivered by Tricerat.
3.2.2 A perpetual license does not grant any rights to subsequent versions, upgrades, updates, modifications, revisions, or support, unless separate Maintenance Support agreement is purchased. Maintenance Support agreements are sold in one (1) year periods (“Support Term”), at the then current price for the particular Software. Once purchased you are entitled to download revisions or updates to the Software when and as Tricerat publishes them. Tricerat requires End Users who choose the perpetual license model to purchase First Year End User’s Maintenance Support agreement. Should your Maintenance Support agreement lapse, you have no further rights to receive any revisions or upgrades without purchase of a new license to the Software.
4.1 The licenses granted under this EULA are conditioned upon your payment of the applicable fees. Except as required by law or as otherwise set forth in the Agreement, no refunds, opt outs or conversions are available and once an order is accepted by Tricerat, Licensee will pay all applicable fees for the full Term in accordance with the order.
4.2 You are to provide current, complete, and accurate information for your billing account and must promptly update all information to keep this account current, complete, and accurate, and you must promptly notify Tricerat of any changes. If your payment and registration information is not current, complete, and accurate and you do not notify us promptly when such information changes, we may immediately suspend or terminate your account, terminate your license and refuse any further use of the Licensed Technology.
5. Activation. Activation is a process by which Tricerat validates the software to detect and prevent fraud and abuse of Tricerat products and services. Activation involves the sending of information to Tricerat at various times, such as at download, installation, uninstallation, serialization, launch, and during update checks for Tricerat software. Specifically, the Software may require End User to (a) obtain the appropriate login credentials, (b) activate or reactivate the Software, or (c) register the software. This information (i) helps Tricerat provide you with appropriate license renewal options, (ii) helps us understand Tricerat software usage, so we may better assist our customers, and (iii) detect or prevent fraudulent or unauthorized use not in accordance with a valid license. Failure to activate or register the Software, validate the subscription, or a determination by Tricerat of fraudulent or unauthorized use of the software may result in reduced functionality, inoperability of the Software or a termination or suspension of the subscription.
6. Restrictions. Tricerat reserves any rights not expressly granted by Tricerat to Licensee, and all implied licenses are disclaimed. Except as otherwise stated herein, Licensee shall not, and shall not require its authorized users not to, directly or indirectly (i) reverse engineer, decompile, reverse compile, translate, adapt, or disassemble or otherwise access the source code to the Licensed Technology, or any part thereof; (ii) copy the Licensed Technology, or any part thereof, in any form, except as set forth in Section 2(ii) and (iii) herein; (iii) publish, display, disclose, sell, rent, lease, modify, store, loan, distribute, or create compilations or derivative works of the Licensed Technology, or any part thereof; (iv) assign, sublicense, convey, transfer, pledge as security or otherwise encumber the rights and licenses granted hereunder; (v) use the Licensed Technology in any fashion that may infringe any patent, copyright, trademark, trade secret or other intellectual property or proprietary rights of Tricerat, its third party suppliers or any other third party or in violation of any law, regulation, or rule; (vi) use the Licensed Technology over a network or distribute any portion of the Licensed Technology to other computers over a network, except as set forth in Section 2(i) herein; (vii) make available any portion of the Licensed Technology through electronic mail or the Internet; (viii) use the Licensed Technology or documentation in, or in association with, the design, construction maintenance, or operation of any hazardous environments, systems, applications or any other use or application in which the use or failure of the Licensed Software could lead to personal injury or severe physical or property damage; (ix) use the Licensed Software for purposes of: (1) benchmarking or competitive analysis of the Licensed Software; (2) developing, using or providing a competing software product or service; or (3) any other purpose that is to Licensor’s detriment or commercial disadvantage; or (x) save, store or otherwise archive the Licensed Technology or any part thereof, except as set forth in Section 2(ii) herein. Licensee may not cause, assist or permit any third party to do any of the foregoing.
7. Ownership. Licensee acknowledges that Tricerat or its suppliers retain all right, title and interest in and to the Licensed Technology and any and all copyrights, trademarks, patents, trade secrets and other intellectual property and proprietary rights therein. Licensee agrees that it has no right, title or interest in or to the Licensed Technology or any copies thereof. Rather, Licensee has a license to use the Licensed Technology as long as this Agreement remains in full force and effect. Except as set forth herein, any other use of the Licensed Technology by any other entity is strictly forbidden and is a violation of this Agreement. Licensee may not remove or obscure the copyright notice or other notices contained in the Licensed Technology.
8. Term and Termination.
8.1 This agreement is effective as of the date of download, and will continue in effect for a Trial Period (as defined herein) of 30 days unless terminated in accordance with the terms and conditions set forth herein. The agreement will remain in effect upon receipt of authorized activation codes and production licenses for a period of one year (“Initial Term”) from download. This agreement will automatically renew for additional one year terms (“Renewal Term”), unless earlier terminated pursuant to any of the agreement’s express provisions or either party gives the other Party written notice 30 days prior to the expiration of the then-current term. The Initial Term, together with each Renewal Term, may be referred to collectively as the “Term.” During the Trial Period, a version of the Licensed Technology may be used to review, demonstrate, or evaluate the Licensed Technology for a limited time period. This version of the Licensed Technology may have limited features, and will cease operating after 30 days.
8.2 Licensee may terminate this Agreement at any time by destroying or returning to Tricerat all copies of the Licensed Technology and Documentation in Licensee’s possession or under Licensee’s control and remitting all payments currently due to Tricerat. Licensee’s right to use the Licensed Technology terminates automatically if Licensee violates any part of this Agreement. Upon notification of termination, Licensee agrees to destroy or return to Tricerat the Licensed Technology and any Confidential Information (as defined herein) and to certify in writing that it has complied with this Section 8. All provisions relating to confidentiality and intellectual property and proprietary rights survive the termination of this Agreement.
9.1 Licensee represents and warrants to Tricerat that Licensee is either: (i) an individual of at least eighteen (18) years of age or (ii) a duly authorized representative of an entity or Business, including without limitation, a corporation, limited liability company, or partnership. Licensee further represents and warrants to Tricerat that: (i) Licensee’s use of the Licensed Technology complies in all respects with all applicable laws, statutes, regulations, ordinances and other rules; (ii) any and all information provided by Licensee to Tricerat is truthful and accurate; and (iii) Licensee’s use of the Licensed Technology shall not infringe any patent, copyright, trademark, trade secret or other intellectual property or proprietary rights of Tricerat, its third party suppliers or any other third party.
9.2 Licensee acknowledges and agrees that the use of the Licensed Technology is at Licensee’s sole risk. The Licensed Technology is provided to Licensee on an “AS IS” and “AS AVAILABLE” basis and without a warranty of any kind and, to the maximum extent permitted by law, TRICERAT AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, INFRINGEMENT AND TITLE. TRICERAT AND ITS SUPPLIERS DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE LICENSED TECHNOLOGY WILL MEET ANY REQUIREMENTS OR NEEDS LICENSEE MAY HAVE, OR THAT THE LICENSED TECHNOLOGY WILL OPERATE ERROR FREE, OR IN AN UNINTERRUPTED FASHION, OR THAT ANY DEFECTS OR ERRORS IN THE LICENSED TECHNOLOGY WILL BE CORRECTED, OR THAT THE LICENSED TECHNOLOGY IS COMPATIBLE WITH ANY PARTICULAR PLATFORM. SOME JURISDICTIONS DO NOT ALLOW THE WAIVER OR EXCLUSION OF SOME WARRANTIES SO THEY MAY NOT APPLY TO LICENSEE. IF THIS EXCLUSION IS HELD TO BE UNENFORCEABLE BY A COURT OF COMPETENT JURISDICTION, THEN ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES SHALL BE LIMITED IN DURATION TO A PERIOD OF THIRTY (30) DAYS FROM THE DATE OF THE LICENSE OF THE LICENSED TECHNOLOGY, AND NO WARRANTIES SHALL APPLY AFTER THAT PERIOD.
10. Indemnification. Licensee shall indemnify, defend and hold harmless Tricerat and its directors, officers, employees and agents from and against any and all claims, losses, damages, liabilities, costs and expenses, including reasonable attorneys’ fees, that arise out of, result from or are related to (i) a breach by Licensee of any warranty, representation or covenant set forth herein, (ii) Licensee’s negligence or willful misconduct, and (iii) any other claim resulting from or occasioned by the possession, use or operation of the Licensed Technology by Licensee.
11. Limitation of Liability. IN NO EVENT SHALL TRICERAT OR ITS SUPPLIERS BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION) ARISING OUT OF THIS AGREEMENT, THE USE OF OR INABILITY TO USE THE LICENSED TECHNOLOGY, OR FOR ANY CLAIM BY ANY OTHER PARTY, EVEN IF TRICERAT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TRICERAT’S AND ITS SUPPLIERS’ AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND THE LICENSED TECHNOLOGY, WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL NOT EXCEED THE FEES PAID BY LICENSEE UNDER THIS AGREEMENT. BECAUSE SOME STATES/COUNTRIES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO LICENSEE.
12. Confidentiality. At all times during the term of this Agreement and at all times thereafter, Licensee shall keep confidential and not disclose, directly or indirectly, and shall not use for the benefit of Licensee or any other third party any Confidential Information. “Confidential Information” means any trade secrets or confidential or proprietary information whether in written, digital, oral or other form which is unique, confidential or proprietary to Tricerat or its suppliers, including, but not limited to, Licensed Technology and any other materials or information related to the business or activities of Tricerat or its suppliers which are not generally known to others engaged in similar businesses or activities. Failure to mark any Confidential Information as confidential, proprietary or otherwise shall not affect its status as Confidential Information hereunder.
13. Export Restrictions. This Agreement is expressly made subject to any applicable laws, regulations, orders, or other restrictions on the export of the technology or information about the Licensed Technology, which may be imposed from time to time. Licensee shall not export the Licensed Technology, information about the Licensed Technology or any product containing the Licensed Technology without complying with such laws, regulations, orders, or other restrictions. The Licensed Technology shall not be exported or re-exported (i) to Cuba, Iran, Iraq, North Korea, Rwanda, Sudan and Syria and any and all other persons and entities prohibited under the United States Export Administration Regulations, as amended from time to time, nor (ii) to any person or entity on the United States Department of the Treasury’s Office of Foreign Asset Control’s Sanctions Programs, including without limitation, the list of Specially Designated Nationals and Blocked Persons, as amended from time to time. Licensee agrees to indemnify and hold harmless Tricerat against all claims, losses, damages, liabilities, costs and expenses, including reasonable attorneys’ fees, to the extent such claims arise out of any breach of this Section 12.
14. License to U.S. Government. The Licensed Technology is a “commercial item” as that term is defined at 48 CFR §2.101 consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 CFR §12.212 or 48 CFR §227.7202, as applicable; and the Licensed Technology is licensed to the United States Government end users only as a commercial item and with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
15. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED, INTERPRETED AND GOVERNED BY THE LAWS OF THE STATE OF MARYLAND OF THE UNITED STATES OF AMERICA, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES AND WITHOUT APPLICATION OF THE MARYLAND UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT AND WITHOUT REGARD TO INTERNATIONAL LAWS. THE PARTIES AGREE THAT THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS WILL NOT APPLY TO THIS AGREEMENT. THE PARTIES AGREE TO SUBMIT TO THE EXCLUSIVE JURISDICTION AND VENUE OF THE STATE AND/OR FEDERAL COURTS WITHIN THE STATE OF MARYLAND REGARDING ANY DISPUTE AMONGST THE PARTIES UNDER THIS AGREEMENT.
16. Piracy and Security. Tricerat is committed to eliminating piracy of Its software products. Tricerat does not tolerate the piracy of Its software products, and we pursue (both civilly and criminally) those individuals or entities who pirate our software using all the legal means available to us, including but not limited to public and private surveillance resources. In this context, the Software may include a security mechanism that can detect the installation or use of illegal copies of the Software, and collect and transmit data about those illegal copies. This process does not collect any proprietary information. Tricerat does not provide any of the information it gathers in connection with this process to any third party, except (i) as may be required by law or legal processes or (ii) to enforce compliance with the key code currently registered on Tricerat’s servers. Use of any Software without the required authorization key provided by Tricerat is prohibited. If you are using any of Tricerat’s software illegally and do not consent to the collection and transmission of such data (including the United States), cease using the illegal version and contact Tricerat to obtain a legally licensed copy.
17. Audit and Compliance. Tricerat may audit or cause Licensee to audit Licensee’s use of the Licensed Technology and Documentation to verify Licensee’s compliance with this agreement, including but not limited to comparing the number of products in use to the number of effective licenses issued in Licensee’s name. Should Tricerat preform said audit, Licensee agrees to give Tricerat (or the auditing firm) reasonable access to Licensee facilities and records for purposes of conducting these audits. Tricerat will give Licensee at least ten (10) days advance notice before conducting an audit. Audits will be conducted during normal business hours and no more than once per year, unless Tricerat has a good-faith basis for believing that more frequent audits are warranted. By requesting an audit, Tricerat does not waive its rights to enforce this agreement or to protect its intellectual property by any other means permitted by law.
18. Feedback. Feedback provided by Licensee, in the form of reviews, comments, testimonials, data and statistics, suggestions or recommendations for modifications, improvements or changes to the features and functionality of the program or to create case studies (named and unnamed) (“Feedback”). When you provide Feedback, you grant us, all right, title and interest in and to the Feedback, a non-exclusive, royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use that Feedback or to incorporate it into the products, including the freedom to reproduce, make, use, create derivative works of, display, import, transmit, distribute, license, sell, offer to sell, or otherwise dispose of Feedback (and derivative works thereof) without obligation of any kind or act on such Feedback without additional approval or consideration, in any from, media, or technology now known or later developed and you hereby waive your claim to the contrary. Both Parties agree that Feedback does not, absent separate agreement, create any confidentiality obligation for Tricerat, provided that the Tricerat will not disclose the source of the Feedback without consent. As Tricerat is under no obligation to incorporate feedback into any products or services, you are under no obligation to provide Feedback to Tricerat.
20. General. This Agreement constitutes the entire agreement between the parties hereto. Any waiver of this Agreement will only be effective if it is in writing and signed by both parties hereto. From time to time, Tricerat may amend the then existing terms and conditions of this Agreement, License is instructed to review the agreement by visiting www.tricerat.com, and Licensee’s continued use of the Licensed Technology constitutes acceptance of such amendments. Licensee may not modify the terms and conditions of this Agreement except by a written agreement signed by both parties hereto. This Agreement, the rights granted hereunder and the Licensed Technology may not be assigned by Licensee without the prior written consent of Tricerat, which may be withheld at its sole discretion. This Agreement binds and inure to the benefit of the successors and assigns of the parties. If a court of competent jurisdiction finds any part of this Agreement invalid or unenforceable, the remainder of this Agreement will be interpreted so as to reasonably effect the intention of the parties. Tricerat is not bound by any provision of any purchase order, receipt, acceptance, confirmation, correspondence, or otherwise, unless Tricerat specifically agrees to the provision in writing.