Ensim End-User Software License Agreement
This End-User Software License Agreement (“Agreement”) is a binding contract between you, as either an individual or an Entity (as defined below), and Ensim Corporation (“Ensim”). Read the terms and conditions of this agreement carefully before downloading, installing, obtaining a license key, or otherwise accessing or using Ensim proprietary Software accompanied by this agreement (the “Software”). The Software is copyrighted and it is licensed to you under this agreement. By downloading, installing, obtaining a license key, or otherwise accessing or using the Software, you acknowledge that you have read this agreement, that you understand it, and that you accept and agree to its terms. If you are accepting this agreement on behalf of a company or other entity as its authorized representative, then you represent and warrant that you have the power and authority to bind such entity to these terms, and references to you herein refer to both you, the individual end user, and the entity on whose behalf you are accepting this agreement. This agreement, along with any additional terms or policies incorporated herein by reference, represents the entire agreement between you and Ensim concerning the Software.
1. License and Use
1.1 License. Subject to your compliance with the terms and conditions of this Agreement, Ensim grants to you, and you accept, a personal, limited, nonexclusive, nontransferable, non-assignable, revocable license to use the Software during the Term in machine-readable, object code form only, and any documentation accompanying the Software ,only as authorized in this Agreement. For purposes of this Agreement, the “Software” includes any updates, enhancements, modifications, revisions, or additions to the Software made by Ensim.
1.2 Use. Your license to use the Software is conditioned on the following license restrictions, and any use of the Software in violation of any of these restrictions, or any of the other terms of this Agreement is a breach of this Agreement and unlicensed. You may use one copy of the Software activated by a license key on a single Authorized Device owned, or otherwise controlled by you. If you have multiple license keys for the Software, you may install and use as many copies of the Software as you have license keys, in each case, on an Authorized Device and only as authorized herein. For purposes of this Agreement, “use” of the Software means loading the Software into the temporary or permanent memory of an Authorized Device. Installation of the Software on a network server solely for distribution to other computers is not “use” of the Software, and is permitted, provided that you have a valid license key for each Authorized Device on which the Software is installed. The Software may not be used on, distributed to, or installed on a greater number of computers than you have license keys. If you use or distribute the Software to multiple users, you must ensure that the number of Authorized Devices does not exceed the number of license keys you have obtained, or you will be in breach of this Agreement and such use and distribution is unlicensed.
1.3 Copies and Modifications. You may not reverse engineer, decompile, disassemble, or otherwise translate the Software or any license keys you have obtained. You may not modify or adapt the Software or any license keys that you have obtained in any way. You may make one copy of the Software, the Documentation, and any license keys that you have obtained, solely for backup or archival purposes. Any such copies of the Software, Documentation, or license keys shall include any copyright or other proprietary notices that were included on such materials when you first received them. Except as authorized in this Section, no copies of the Software, Documentation, or license keys, or any portions thereof, may be made by you or any person under your authority or control.
1.4 Assignment of Rights. You will not sublicense, lease, rent, or lend your rights in the Software, Documentation, or license keys, as granted by this Agreement, without prior written consent of Ensim. Ensim may assign this Agreement without limitation.
1.5 Support and Maintenance. Ensim will not provide any support or maintenance services under this Agreement. Ensim may offer support or maintenance services separately. If you have purchased Ensim support or maintenance services with the Software, these services are provided to you separately.
2. Intellectual Property, Confidentiality, Proprietary Rights
2.1 Use Reporting, License Violations and Remedies. Ensim reserves the right, and you authorize Ensim, to gather data on key usage including license key numbers, Authorized Device IP addresses or other applicable device identifier (including MAC address or UDID), domain counts and other information deemed relevant, to ensure that our products are being used in accordance with the terms of this Agreement. You agree not to block, electronically or otherwise, the transmission of data required for compliance with this Agreement. Any blocking of data required for compliance under this Agreement is considered to be violation of this Agreement and will result in immediate termination of this Agreement pursuant to Section 3.
2.2 Proprietary Rights to Software and Trademarks. You acknowledge that the Software and the Documentation are proprietary to Ensim, and the Software and Documentation are protected under United States copyright and other intellectual property laws and international treaties. You further acknowledge and agree that, as between you and Ensim, Ensim and its third party licensors own and shall continue to own all right, title, and interest in and to the Software and Documentation, including associated intellectual property rights under copyright, trade secret, patent, or trademark laws. Except for the limited, revocable license expressly granted to you herein, this Agreement does not grant you any ownership or other right or interest in or to the Software or the Documentation or any other intellectual property rights of Ensim. Any and all trademarks or service marks that Ensim uses in connection with the Software or with services rendered by any of Ensim are marks owned by Ensim. This Agreement does not grant you any right, license, or interest in such marks.
2.3 Confidentiality. You shall permit only authorized users to use the Software or to view the Documentation. Except as expressly authorized by this Agreement, you shall not make available the Software, Documentation, or any license key to any third party, or use the Software, Documentation, or any license key for any purpose other than exercising rights expressly granted to you hereunder. You agree to cooperate with and assist Ensim in identifying and preventing any unauthorized use, copying, or disclosure of the Software or Documentation.
2.4 Consent to Use Data.You agree that Ensim may collect and use technical data and related information, including but not limited to technical information about your device, system and application Software, and peripherals, that is gathered periodically to facilitate the provision of Software updates, product support, and other services to you related to the Software. Ensim may use this information, as long as it is in a form that does not personally identify you, to operate, provide, improve, and develop our products, services and technologies, to prevent or investigate fraudulent or inappropriate use of our products, services, and technologies, for research and development, and for the other purposes described in this Agreement.
3. Term and Termination
This Agreement is effective upon your acceptance of the Agreement, or upon your downloading, installing, accessing, and using the Software, even if you have not expressly accepted this Agreement. This Agreement shall continue in effect until expiration or termination as provided herein. This Agreement will terminate automatically without notice to you if you breach or fail to comply with any of the limitations or other requirements described herein, including the payment of any applicable fees, and you agree that in any such case Ensim may, in addition to any other remedies it may have at law or in equity, remotely disable the Software. You may terminate this License Agreement at any time by providing written notice of your decision to terminate the Agreement to Ensim and ceasing use of the Software and Documentation. Upon any termination or expiration of the Agreement for any reason, you agree to uninstall the Software and either return to Ensim the Software, Documentation, all copies thereof, and all license keys that you have obtained, or to destroy all such materials and provide written verification of such destruction to Ensim.
You will, at your own expense, indemnify and hold Ensim, and all officers, directors, and employees thereof, harmless from and against any and all claims, actions, liabilities, losses, damages, judgments, grants, costs, and expenses, including reasonable attorneys' fees (collectively, "Claims"), arising out of any use of the Product (as defined below) by you, any party related to you, or any party acting upon your authorization in a manner that is not expressly authorized by this Agreement.
5. Third Party Software
The Software is distributed to you with various third party Software components ("Third Party Software" and together with the Software, the "Product") which are provided under separate license terms (the "Third Party Terms"). Your use of the Third Party Software in conjunction with the Software in a manner consistent with the terms of this Agreement is permitted. The Software may also enable interoperation with certain other third party operating systems and applications. Ensim does not provide you with any such third party licenses and it is solely your responsibility to obtain all necessary Software licenses from respective vendors. The software may contain open source software as listed on the Ensim customer support website.
6. Limited Warranty; Disclaimer; Limitation of Liability
6.1 WARRANTY DISCLAIMER. THE PRODUCT AND DOCUMENTATION ARE LICENSED “AS IS,” AND ENSIM DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, TIMELINESS, TITLE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TO THE FULLEST EXTENT AUTHORIZED BY LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ENSIM EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND FOR THE THIRD PARTY SOFTWARE, AND DOES NOT WARRANT THAT THE PRODUCT WILL MEET YOUR REQUIREMENTS OR THAT OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, THAT DEFECTS OR ERRORS IN THE PRODUCT WILL BE CORRECTED OR THAT THE PRODUCT WILL BE COMPATIBLE WITH FUTURE ENSIM PRODUCTS, OR THAT ANY INFORMATION STORED OR TRANSMITTED THROUGH THE PRODUCT WILL NOT BE LOST, CORRUPTED OR DESTROYED.
6.2 LIMITATION OF LIABILITY. IN NO EVENT SHALL ENSIM BE LIABLE TO YOU OR ANY PARTY RELATED TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF DATA OR OTHER SUCH PECUNIARY LOSS), WHETHER UNDER A THEORY OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCTS LIABILITY, OR OTHERWISE, EVEN IF ENSIM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL ENSIM TOTAL AGGREGATE AND CUMULATIVE LIABILITY TO YOU FOR ANY AND ALL CLAIMS OF ANY KIND ARISING HEREUNDER EXCEED THE AMOUNT OF LICENSE FEES ACTUALLY PAID BY YOU FOR THE SOFTWARE GIVING RISE TO THE CLAIM IN THE TWELVE MONTHS PRECEDING THE CLAIM. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
7. General Terms
7.1 Governing Law and Choice of Forum. This Agreement shall be governed by and interpreted in accordance with the laws of the state of California. Any claim or dispute arising in connection with this Agreement shall be resolved in the courts in Santa Clara County .To the maximum extent permitted by law, you hereby consent to the jurisdiction and venue of such courts and waive any objections to the jurisdiction or venue of such courts. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
7.2 Severability. If any term or provision of this Agreement is declared void or unenforceable in a particular situation, by any authority, this declaration shall not affect the validity of enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation. To the extent possible the provision will be interpreted and enforced to the greatest extent legally permissible in order to effectuate the original intent, and if no such interpretation or enforcement is legally permissible, shall be deemed severed from the Agreement.
7.3 Survival. Articles 2, 4, 6, and 7 of this Agreement and all Sections thereof, shall survive the termination or expiration of this Agreement, regardless of the cause for termination or expiration, and shall remain valid and binding indefinitely.
7.4 No Waiver. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
7.5 Amendment. Ensim reserves the right, in its sole discretion, to amend this Agreement from time to time .If there is a conflict between this Agreement and the most current version of this Agreement, the most current version will prevail. Your use of the Software after the amended Agreement becomes effective constitutes your acceptance of the amended Agreement. If you do not accept amendments made to this Agreement, then this license will be immediately terminated pursuant to Section 3.
7.6 Export Controls. You may not use, export, re-export, import, sell or transfer the Software except as authorized by United States (U.S.) law, the laws of the jurisdiction in which you obtained the Software, and any other applicable laws and regulations. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also acknowledge that the Software may be subject to other U.S. and foreign laws and regulations governing the export of Software by physical and electronic means. You agree to comply with all applicable U.S. and foreign laws that apply to Ensim as well as end-user, end-use, and destination restrictions imposed by U.S. and/or foreign governments. You also agree that you will not use the Software for any purposes prohibited by U.S. law.
7.7 Governing Language. Any translation of this Agreement is done for local requirements and in the event of a dispute between the English and any non-English versions, the English version of this Agreement shall govern.