End User License Agreement ("EULA")
THE FOLLOWING CONSTITUTES THE END USER LICENSE AGREEMENT THAT IS ATTACHED TO THE SOFTWARE THAT YOU ARE ABOUT TO DOWNLOAD.
BEFORE CLICKING THE "ACCEPT" BUTTON OR USING THE SOFTWARE, PLEASE READ THE FOREGOING TERMS AND CONDITIONS CAREFULLY. BY CLICKING ACCEPT, YOU WILL BE DEEMED, FOR ALL LEGAL PURPOSES, TO HAVE READ, UNDERSTOOD AND ACCEPTED, UNCONDITIONALLY AND WITHOUT QUALIFICATION, THE TERMS SET OUT HEREIN AND YOU WILL BE SIGNIFYING YOUR LAWFUL AND BINDING CONSENT TO BE BOUND THEREBY.
CLICKING ON ACCEPT AND/OR THE USE OF THE SOFTWARE WILL COMPLETE AND THEREAFTER CONSTITUTE A LEGAL CONTRACT, BETWEEN YOURSELF AND MICRO FOCUS THAT SHALL, FOR ALL LEGAL PURPOSES, BE GOVERNED BY THE TERMS AND CONDITIONS AS HEREINAFTER SET OUT.
IF, FOR ANY REASON, YOU DO NOT AGREE WITH ANY OF THE TERMS HEREIN OR DO NOT WISH TO BE BOUND BY THEM, YOU MAY CLICK THE BUTTON DISPLAYING THE "NO" ELECTION AND IT IS UNDERSTOOD THAT NO CONTRACTUAL RELATIONSHIP WILL BE CREATED AND YOU WILL NOT ACQUIRE THE RIGHT TO DOWNLOAD OR USE THIS SOFTWARE.
Where used in the present Agreement the following terms shall have the meaning as hereinafter set out:
"Agreement" when used herein shall mean the EULA entered into between yourself and MICRO FOCUS governing the issuance to You of a license to use MICRO FOCUS software
"Software" when used herein shall mean computer software and/or computer code and/or associated media and/or printed materials and/or, where applicable, 'online' and/or electronic documentation
"Maintenance" when used herein shall mean technical support in conjunction with upgrade protection (the modification of the software after delivery to correct faults, improve performance or add functionality or other attributes).
"Subscription" when used herein shall mean the usage of a term license in conjunction with technical support and upgrade protection (the modification of the software during the term to correct faults, improve performance or add functionality or other attributes).
"You" when used herein shall mean the company, unincorporated entity or individual who is acquiring the license to use the Software pursuant to the present Agreement and shall, for the purposes of the present Agreement, be deemed to be synonymous with the term "User"
"Use" when used herein shall mean the storage, loading, installation, execution or display of the Software
"Computer" when used herein shall mean the central processing unit (CPU) or group of CPUs that access its or their own individual non-cache Random Access Memory
"Server" when used herein shall mean a computer accepting requests from client computers.
"Perpetual License" when used herein shall mean the perpetual use of the software.
2. License Grant - Usage in General
It is expressly understood and agreed that your Use of the Software is limited as to the quantity and in accordance with the specific limitations as are hereinafter set forth:
a) MICRO FOCUS hereby grants and You accept the non-exclusive and non-transferable right to Use the Software in object code form only,
b) You hereby acknowledge and agree that You will not modify the Software or disable any licensing or control features of the said Software and further,
c) You acknowledge and agree that the Software may contain code(s) that enforces simultaneous use restrictions and/or disables all of its features upon the termination of any applicable evaluation period,
d) You acknowledge and understand that the efficiency and viability of the Software requires the proper and timely application of updates which are provided with Maintenance. The failure to maintain the Software may result in the loss of data, essential features and functionality. Maintenance is sold separately,
e) You acknowledge and understand that all warranties are voided when a Perpetual License is operated without its proper updates and after expiry of its paid Maintenance contract,
f) You acknowledge and understand that when the License is used on a Subscription basis, its usage will expire at the end of the subscription period.
3. License Grant - Evaluation License
Where the Software is designated as Software in virtue of an 'Evaluation License', MICRO FOCUS hereby grants to You and You accept a temporary, non-exclusive and non-transferable right to Use one (1) copy of the Software in object form only. It is expressly understood and agreed that such Use is for evaluation purposes only and that general use is excluded by the terms of the license. It is further expressly understood and agreed that the right of use for evaluation purposes as contemplated herein shall subsist for a period of thirty (30) days commencing on the date when the Software is used by You for the first time.
Evaluation copies of Software are provided free of charge or at nominal cost and are, at all times, made available to You "as is" and without warranty of any nature or description whatsoever.
4. Per User License
Software designated as being subject to a "Per User License" must be licensed on the basis of one license for each user of the said Software. Further, it is a condition precedent of the present Agreement that MICRO FOCUS may, at its sole and unfettered discretion, audit the number of Users of Per User Software on your System. Per user license can be extended to multiple servers without exceeding its purchase Per Users License amount. Per User License includes active and inactive users.
In its monitoring process, MICRO FOCUS shall not monitor or access the user content gathered within the Software. It is agreed and understood that upon the occurrence of (a) installing the Software (b) changes or modifications to the Software license usage or (c) a version upgrade, MICRO FOCUS reserves the right to monitor, record and enforce the use of such Software in compliance with the license terms and conditions associated therewith. Monitoring is essential for managing Per User Licenses in multiple instances installations. MICRO FOCUS reserves the right to monitor and record features and functionalities usage for product improvements.
It is expressly understood and agreed that the Software and attendant copyright is, and remains in perpetuity, the sole and exclusive property of MICRO FOCUS and/or its Third Party Suppliers. It is further consequently expressly understood and agreed that such license as is granted herein confers no title or ownership in the Software, trademark, or logo associated therewith and does not constitute in any manner, a sale or transfer of any rights therein.
Authorization is hereby granted to you by MICRO FOCUS to make one (1) copy of the object code of the Software solely and exclusively for backup or archival purposes or, in the event that the making of a copy thereof is an essential function in the authorized Use of the Software.
It is expressly understood and agreed that in the event that such copy, as is authorized herein, is made in virtue of the present Agreement, it shall include, in their entirety, all copyright and other proprietary advisories and/or notices of restricted rights therein as exist on the original Software.
8. Additional Restrictions
Except to the extent specifically permitted herein, the concurrent Use, Use of the Software by other individuals, modification, translation, reverse engineering, decompiling, disassembling, creation of any derivative works based on the Software, including the copying onto a bulletin board or similar system, is strictly prohibited by the terms of the present Agreement.
In addition to the foregoing, it is further expressly understood and agreed that the rights conferred to You in virtue of the license herein granted are non-transferable and that they may not be sold, rented, leased, or given gratuitously, nor may You in any manner grant a security interest therein.
It is further understood and agreed that You will under no circumstances disclose the results of any benchmark test to any third party without the express, prior written consent of MICRO FOCUS.
It is expressly understood and agreed that the liability of MICRO FOCUS in virtue of the present Agreement shall be limited by the consent of the Parties hereto to: 1) The return to You of the purchase price up to an amount of 10,000 US dollars or 2) The replacement of any defective media, said options being in all cases entirely at the discretion of MICRO FOCUS and requiring, in all events, the return to MICRO FOCUS of the media and documentation in your possession, together with proof of purchase thereof.
It is further expressly understood and agreed that the foregoing is a limited warranty and represents the totality of the warranty made by MICRO FOCUS and that these presents represent the complete and absolute liability of MICRO FOCUS to You and that You hereby release MICRO FOCUS totally and irrevocably from any and all contractual, delictual or tortuous liability of every nature and description.
10. Warranties Respecting Merchantability, Fitness and Non Infringement
It is expressly agreed and understood that MICRO FOCUS, to the extent permitted by law, is hereby relieved of all liability for loss of any kind suffered by You in connection with any defect in the Software and that the risk and cost of any service or repair in connection therewith will be at your exclusive charge and further, that the present disclaimer constitutes a condition precedent to this Agreement.
Notice is hereby given that, in the event that exclusion of implied warranties is stipulated to be contrary to public order or policy in any given jurisdiction, the foregoing disclaimer shall apply to the extent provided for by law.
11. Limitations on Liability
It is expressly understood and agreed that MICRO FOCUS shall have no liability to You or any other person, in contract, tort, delict, product liability or otherwise, whether negligence is provable or not, for any monetary damages, whether direct or indirect, special, cover, reliance or consequential notwithstanding that MICRO FOCUS may have been informed or advised of the possibility of such damages, or for any other claim of any nature or description, by any party. In the event that MICRO FOCUS shall be found liable to You for damages for any cause, notwithstanding the foregoing, and without regard to the form of any action, the liability of MICRO FOCUS is hereby stipulated to be the lesser of 10,000 US dollars or the amount received by MICRO FOCUS for the Software contemplated herein.
In addition to the foregoing, by downloading and installing the Software, You warrant that You are authorized and empowered to do so by the lawful user of the Servers and its Data as the case may be, to be monitored thereby and that You further understand and agree that MICRO FOCUS can and shall assume no responsibility or liability of any nature or description should the warranty provided for herein be breached by any person or persons and that the author of such breach shall, themselves bear responsibility, both criminal or civil in association therewith
12. Export Controls
It is understood and agreed herein that no Software, underlying information or technology may be downloaded or otherwise transferred, exported or re-exported to:
a) Myanmar, Cuba, Libya, Iran, Sudan, North Korea, Syria or any other country or region to which the United States Government has ,or may, from time to time, embargo or limit the transfer of goods or to any National thereof; or
b) To any country, region, or person, either physical or legal on the list of Specially Designated Nationals promulgated by the U.S. Department of the Treasury or found in the U.S. Commerce Department's Table of Denial Orders (TDO)
By downloading or using the Software, You are hereby representing and warranting that You are not located in, under the control of, or a National or resident of any such Country or on any such list. In addition thereto, You hereby acknowledge that You are responsible for compliance with any local law(s) or regulation(s) in force in your jurisdiction which may impact your right to import, export or use the Software and You so represent that You have complied with any such legislation and/or regulations and/or registration procedures required by applicable law to render this License enforceable.
13. U.S. Government End Users
Notice is hereby given that the Software is a "commercial item" within the meaning of 48 C.F.R. 12.101 (Oct 1995), consisting of; (a) commercial computer software" and (b) commercial computer software documentation as the said terms are used in 48 C.F.R. 12.212 (Sept 1995).Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), U.S. Government End Users shall acquire the Software in accordance with the terms and conditions as herein set forth.
The License granted herein shall be effective until terminated except for an evaluation License which shall terminate in accordance with the provisions as set forth at Paragraph 3 herein. You shall be entitled to terminate the License granted herein at any time. MICRO FOCUS may, at its sole option, elect to terminate the present Agreement and revoke the License granted herein upon the breach by You of any of the terms herein.
In the event that MICRO FOCUS shall so elect, or upon the termination of the License granted herein for any reason, it is understood and agreed that You shall, immediately, and without formal notice, discontinue all use of the Software and destroy the said Software together with all copies thereof. It is further understood and agreed that with the exception of the License granted herein to Use the Software, the other provisions of this Agreement will survive the termination of the said License or the termination of the Agreement itself and shall remain, for all legal purposes, fully enforceable.
The present Agreement constitutes the entirety of the Agreement between the Parties with respect to its subject matter. In the event that any provision hereof shall be deemed unenforceable, void or invalid, such provision shall be amended so as to render it valid and enforceable and, as so amended, the Agreement, in its entirety, shall remain in full force and effect. It is further stipulated herein that no decision, action or inaction by MICRO FOCUS shall be construed to be a waiver of any right(s) or remedy available to it.
The waiver by either Party of any default or breach of this Agreement shall, in no event, constitute a waiver of any other or subsequent default or breach.
17. Jurisdiction and Choice of Law
The parties hereto stipulate that the present Agreement shall be interpreted in accordance with the laws of the State of Utah and the United States of America and that, further, the application hereof of the United Nations Convention on the International Sale of Goods is hereby specifically excluded. The Parties hereby further stipulate that the Courts of Utah and of the United States shall have exclusive and preemptory jurisdiction to entertain all applications in relation hereto of every nature and description, both legal and equitable.
18. Complete Agreement
It is expressly understood and agreed that this Agreement constitutes the complete contract between the Parties and supersedes and replaces all prior or contemporaneous representations, communications, understandings and agreements between the Parties, oral or written, with respect to the subject matter hereof. Further, it is expressly understood and agreed that the present Agreement shall not be amended or modified except, in writing, where such writing is signed by the authorized representative of each Party. No representations, statements, warranties or agreements, other than those herein expressed, have intervened to induce the making, execution and /or delivery of this Agreement.
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