End User License Agreement
The Software (as defined below) is made available to you under this End User License Agreement (this “Agreement”). As used in this Agreement, “Phoenix” means Phoenix Technologies, and “you” (and variations such as “your”) means you and any organization or entity on whose behalf you are accepting this Agreement or utilizing the Software.
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, OR BY USING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THIS AGREEMENT. If you do not agree to this Agreement, you may not install or use the Software.
This Agreement and any order form proffered by Phoenix and accepted by you that identifies the Software to be licensed to you, any support purchases, the purchase price, and location for delivery (each an “Order Form”) constitute the entire contract between you and Phoenix, and supersedes all prior agreements and understandings between you and Phoenix relating to the subject matter hereof. In the event of a conflict, terms of this Agreement shall take precedence over the terms of any Order Form, except with respect to purchase price, invoicing and payment due date following invoicing. Any proposal, quote, attempted acknowledgment of an order or similar containing terms inconsistent with, or in addition to, this Agreement shall not be binding, and is expressly rejected.
- License Grant. Subject to the terms and conditions of this Agreement and to any applicable restrictions and/or payment of fees set forth in the Order Form, during the Term, Phoenix grants you a limited, nontransferable, nonsublicensable and nonexclusive right to use, in accordance with the applicable user documentation Phoenix provides to you and solely for your internal business operations, the Software (which right to “use” includes the right to reproduce and display the Software, solely to the extent required to install and run the Software on computers and other permitted hardware as permitted by this Agreement and subject in all cases to the restrictions set forth in the Order Form). Your ability to activate or continue using the Software may be subject to one or more license protections required by Phoenix, including a license key that Phoenix provides. “Software” means Phoenix’s proprietary software and related documentation that is delivered by Phoenix to you for use in operating and managing the Phoenix FirmGuard platform on your computers and other permitted hardware, including any upgrades, updates and new versions thereof delivered by Phoenix to you, in each case as described in, and subject to the terms of, the Order Form.
- Audit. During the Term and for one (1) year thereafter, Phoenix may (at Phoenix’s own expense, upon reasonable notice, and no more frequently than once per calendar year unless prior breach has been uncovered) conduct or have a third party auditor conduct an inspection of your books, records, and facilities to investigate your compliance (including any other persons or entities that are permitted to use or access the Software) with this Agreement. You will, and shall cause any others, to cooperate in good faith with such audit activities, which cooperation shall include maintaining all pertinent books and records during the Term and for one (1) year thereafter. If an audit uncovers a breach of this Agreement, you will pay Phoenix the costs of such audit within ten (10) days of receipt of notice of the results of such audit and the costs therefor.
- Certain Restrictions and Obligations.
- General. You may use the Software only in compliance with all applicable laws. Except as expressly permitted by the Order Form, copying of the Software is expressly forbidden. Except as expressly provided otherwise herein, you may not, and shall not allow or assist any other person or entity to: (i) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying ideas, user interface techniques or algorithms, file formats or programming or interoperability interfaces of the Software or any portion thereof by any means whatsoever, (ii) sublicense, assign, transfer, distribute, rent or sell use of or access to the Software, whether as a service bureau or otherwise, including connection of the Software to the Internet (other than as enabled by Phoenix) or any other manner of making the software available to any third party for its use (whether paid or unpaid), (iii) remove, alter or obscure any product identification, copyright or other notices, (iv) except as specified in the applicable user documentation provided by Phoenix, modify the Software or incorporate the Software into or with other software or hardware, (v) knowingly take any action that would cause any element of the Software or Phoenix’s products to be placed in the public domain, (vi) copy, in whole or in part, the Software or any component thereof other than for limited back-up purposes if applicable and provided that all original proprietary marks and legends are reproduced in the copy, (vii) develop or have developed any product or service using or based on any component of the Software. You agree and acknowledge that you have been provided sufficient information such that you do not need to reverse engineer any part of the Software in any way to permit other products or information to interoperate with the Software. In jurisdictions where prohibitions on the foregoing activities are not permitted for the Software, you shall provide Phoenix with at least thirty (30) days’ written notice of intent to perform such activities, and you may only perform such activities to the extent a written opinion of outside counsel engaged for the purpose of such analysis has concluded that such activities are required to be permitted under applicable law, despite contractual language to the contrary, and only to the limited extent (i.e. only upon the portions of the Software and only to the extent) for which such activities are necessary in accordance with that opinion.
- Requirements. In order to access and use the Software, you shall use systems and technologies that meet the minimum standards designated in the applicable documentation Phoenix provides to you from time to time. You are responsible for procuring and maintaining all equipment, software and services necessary to access and use the Software and shall be responsible for paying all charges related thereto.
- Security. As a condition to your right to use the Software, you shall establish security systems which, at a minimum, shall include mechanisms to: (i) detect and terminate the unauthorized use of or access to the Software, (ii) safeguard the integrity and validity of all login credentials for the Software, and (iii) prevent unauthorized access to and protect all electronically stored, processed or transmitted information related to the Software. You shall promptly inform Phoenix of any unauthorized use of the Software or breach of this Agreement and inform Phoenix of the steps being taken to terminate such unauthorized use or breach.
- Payment; Suspension. Payment for access to and use of the Software shall be made in accordance with the Order Form; you acknowledge and agree that Phoenix may suspend or terminate your access to the Software to the extent permitted under any other agreement between you and Phoenix, including the Terms that apply to the Order Form.
- Term and Termination. Unless earlier terminated as set forth below, the initial term of this Agreement will begin on the date that you accept this Agreement and shall renew and or expire as set forth on the Order Form (unless earlier terminated as provided in this Section) (the “Term”). If either party materially defaults in the performance of or compliance with any of its material obligations under this Agreement and such default has not been remedied or cured within thirty (30) days after written notice of such default, the non-defaulting party may immediately terminate this Agreement in addition to its other rights and remedies under law. If you use the Software in a way that violates the license granted to you hereunder, this Agreement shall automatically terminate. Upon expiration or termination of this Agreement for any reason, you shall immediately pay all amounts due to Phoenix and cease all use of the Software and return or destroy all copies, extracts, analyses, derivatives and reflections of the Software, and, upon Phoenix’s request, provide a written notice signed by an executive officer authorized to bind you that certifies that you have fully complied with this clause. Remedies for breach, rights to accrued payments and Sections 5, 6, 7, 9, 10 and 11 will survive any termination or expiration of this Agreement.
- Phoenix retains title to and ownership of all rights and interest with respect to the Software, including its object code and source code, and all copies and portions thereof. All rights not expressly granted to you herein are expressly reserved by Phoenix.
- You agree that Phoenix may solicit and you may provide to Phoenix suggestions, ideas, enhancement requests, feedback, recommendations, or other information relating to the Software (the “Feedback”). You hereby grant to Phoenix the irrevocable, perpetual, nonexclusive, worldwide, royalty-free right and license to disclose, use and incorporate the Feedback in connection with the development and distribution of the Software and related products and services.
- Confidentiality. During the course of this Agreement, each party may have access to confidential, proprietary or trade secret information disclosed by the other party, including, without limitation, ideas, trade secrets, procedures, methods, systems, and concepts, whether disclosed orally or in writing or stored within the Software, or by any other media (“Confidential Information”). Without limiting the foregoing, the Software (and its underlying code, processes and algorithms, and all license keys) are Phoenix’s Confidential Information. Each party as a receiving party (the “Receiving Party”) acknowledges that the Confidential Information of the other party (the “Disclosing Party”) contains valuable trade secrets and other proprietary information of the Disclosing Party and that any such Confidential Information will remain the sole and exclusive property of the Disclosing Party. Each party will use the Confidential Information provided hereunder only for purposes directly related to the purpose for which it was provided and will further restrict disclosure of Confidential Information solely to its employees and subcontractors with a need to know, and not disclose such Confidential Information to any other parties, and will otherwise protect the Confidential Information with no less restrictive measures than it uses to protect its own confidential and proprietary information. Information will not be deemed “Confidential Information” if such information: (i) was generally accessible to the public at the time it was communicated to the Receiving Party, (ii) is rightfully communicated to the Receiving Party free of any obligation of confidence subsequent to the time it was communicated to the Receiving Party, (iii) was in the Receiving Party’s possession free of any obligation of confidence at the time it was communicated to the Receiving Party, or (iv) was developed by the Receiving Party entirely independently of any Confidential Information of the Disclosing Party. Notwithstanding the above, the Receiving Party will not be in violation of this Section 7 with regard to a disclosure that was in response to a valid order by a court or other governmental body, provided that the Receiving Party provides the Disclosing Party with prompt written notice of such disclosure where reasonably possible in order to permit the Disclosing Party to seek confidential treatment of such information, and cooperates with the Disclosing Party (to the extent permitted by law) with respect to the foregoing.
- Your Representations and Warranties. Phoenix warrants that, for a period of sixty (60) days from the purchase date (“Warranty Period”), the Software licensed under this Agreement will perform substantially in accordance with the documentation Phoenix provides to you in respect thereof (“Limited Warranty”). Your exclusive remedy and Phoenix’s entire obligation and liability for any breach of the Limited Warranty is to repair or replace the Software or refund to you the price you paid for the Software if a repair or replacement of the Software would, in Phoenix’s opinion, be unreasonable. The Limited Warranty is conditioned upon you providing Phoenix prompt written notice of the Software’s failure to perform substantially in accordance with the applicable documentation. The Limited Warranty will not apply if: (i) the Software is not used in accordance with this Agreement or the applicable documentation; (ii) the Software or any part of the Software has been modified by any entity other than Phoenix; or (iii) a malfunction in the Software has been caused by any equipment or software not supplied by Phoenix.
- Disclaimers. THE SOFTWARE AND ALL RELATED SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND. PHOENIX EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING ALL SOFTWARE AND RELATED SERVICES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR CUSTOM, TRADE, QUIET ENJOYMENT, ACCURACY OF INFORMATIONAL CONTENT, OR SYSTEM INTEGRATION. PHOENIX DOES NOT REPRESENT OR WARRANT THAT SOFTWARE WILL BE PROVIDED ERROR FREE, VIRUS FREE, WITHOUT INTERRUPTION, OR WILL WORK ON ALL DEVICES OR WITH ALL COMMUNICATION PROTOCOLS. YOU ACKNOWLEDGE THAT PHOENIX HAS NO CONTROL OVER THE SPECIFIC CONDITIONS UNDER WHICH YOU USE THE SOFTWARE. ACCORDINGLY, PHOENIX CANNOT AND DOES NOT WARRANT ANY PARTICULAR RESULTS THAT MAY BE OBTAINED BY THE USE OF THE SOFTWARE. THE SOFTWARE AND SUPPORT DO NOT REPLACE YOUR OBLIGATION TO EXERCISE YOUR INDEPENDENT JUDGMENT IN USING THE SOFTWARE. YOU ARE SOLELY RESPONSIBLE AND LIABLE FOR VERIFYING THE ACCURACY AND ADEQUACY OF ANY OUTPUT FROM THE SOFTWARE, AND FOR ANY RELIANCE THEREON.
- By Phoenix. Phoenix will defend you against any claims, actions, suits and proceedings brought against you by unaffiliated third parties alleging that the Software (other than any third party or open source components or elements) infringes upon such third party’s patents or registered copyrights, and Phoenix will pay all damages that a court finally awards to such third party, and all associated settlement amounts agreed to by Phoenix in writing. This obligation does not apply with respect to the Software or portions or components thereof (i) that Phoenix did not supply, (ii) that are combined with other products, data, processes or materials where the infringement or misappropriation relates to such combination, unless Phoenix expressly authorized such combination in writing, (iii) to the extent that you continue allegedly infringing activity after being provided modifications that would have avoided the alleged infringement, or (iv) where your use of the Software is not strictly in accordance with this Agreement. If Phoenix believes that the Software is, or is likely to be, the subject of an infringement claim, Phoenix may, at its option, (a) procure for you rights to continue using the Software under this Agreement, (b) replace or modify the Software so that it becomes non-infringing but substantially equivalent in functionality and performance, or (c) terminate this Agreement and the rights granted herein). The foregoing obligations are Phoenix’s only obligations and liability in connection with infringement by the Software or any related technology or services hereunder.
- By You. You will indemnify and hold harmless Phoenix and its affiliates, officers, directors, employees and agents, and Phoenix’s and their respective heirs, successors and assigns from and against any and all liabilities, claims, damages, losses, costs and expenses (including reasonable attorney’s fees) arising out of or incurred as a result of: (i) any breach by you of this Agreement, (ii) any gross negligence or willful misconduct by you; and (iii) your use of the Software or any component thereof, including any misuse of or failure to secure any credentials resulting in any alleged or actual breach. This obligation does not apply to the extent the underlying claim is caused by Phoenix’s gross negligence, our willful misconduct, or any claim for which Phoenix has an obligation to indemnify you.
- Indemnification Procedures. Each party seeking indemnification hereunder shall provide the other party with: (i) prompt written notice of any claim for which indemnification is sought; (ii) complete control of the defense and settlement of such claim; and (iii) reasonable assistance and cooperation in such defense at the indemnifying party’s expense. In any proceeding the indemnified party shall have the right to retain, at its expense, its own counsel. Notwithstanding the foregoing, neither party may enter into a settlement of an indemnified claim without the other party’s written consent, which shall not be unreasonably withheld.
- Limitation of Liability. EXCEPT IN THE CASE OF LIABILITY UNDER SECTION 9 OR YOUR BREACH OF SECTIONS 3(a) OR 7, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF USE, LOSS OF BUSINESS, COST OF PROCUREMENT OF SUBSTITUTE SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND THE SOFTWARE AND RELATED SERVICES RENDERED HEREUNDER (HOWEVER ARISING, INCLUDING NEGLIGENCE), EVEN IF THE PARTIES ARE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. PHOENIX’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND THE SOFTWARE AND RELATED SERVICES RENDERED HEREUNDER, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED ANY AMOUNTS ACTUALLY PAID BY YOU TO PHOENIX UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THAT THE CAUSE OF ACTION AROSE. THE LIMITATIONS AND DISCLAIMERS IN THIS SECTION ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES AND EACH PARTY ACKNOWLEDGES AND AGREES THAT, BUT FOR SUCH LIMITATIONS AND DISCLAIMERS, THE PARTIES WOULD NOT HAVE ENTERED INTO THIS AGREEMENT ON THE TERMS SET FORTH HEREIN.
- Relationship. The parties are independent contractors under this Agreement and expressly disclaim any partnership, franchise, joint venture, agency, employer/employee, fiduciary or other special relationship. Neither party intends this Agreement to benefit or create any right or cause of action in or on behalf of, any person or entity other than the parties. This Agreement is not intended to create a third-party beneficiary of any kind. You must not represent to any third party that it has any right to bind Phoenix in any manner and you will not to make any representations or warranties on behalf of Phoenix.
- Notices. Any notice, report, approval or consent required or permitted hereunder shall be in writing and shall be deemed to have been duly given if delivered personally, sent by a nationally recognized overnight carrier or mailed by first-class, registered or certified U.S. mail, postage prepaid, as follows: to Phoenix, at Phoenix Technologies, 2105 S. Bascom Avenue, Suite 316, Campbell, CA 95008 Attn: Legal Department, and to you, at the address specified on the Order Form. Each party may, upon notice to the other party, change the address and person for notices. Notice shall be deemed effective on the date of receipt.
- Force Majeure. Neither party will be in default or otherwise liable for any delay in or failure of its performance under this Agreement (other than the payment of amounts owed) if such delay or failure arises by any reason beyond its reasonable control, including any act of God, or any acts of the common enemy, the elements, earthquakes, floods, fires, epidemics, riots, failures or delays in transportation or communications, or any act or failure to act by the other party, its employees, agents or contractors.
- Governing Law/Venue. This Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of the State of California without reference to its choice of law rules and without reference to the United Nations Convention on Contracts for the International Sale of Goods. The sole jurisdiction and venue for actions related to the subject matter of this Agreement shall be the state and US federal courts having jurisdiction and located in San Jose, California. Notwithstanding anything herein, either party may seek injunctive relief and the enforcement of judgments in any court of competent jurisdiction, no matter where located. The prevailing party in any action to enforce or interpret this Agreement shall be entitled to recover costs and expenses including, without limitation, attorneys’ fees.
- Assignment. You may not assign this Agreement without the prior written consent of Phoenix. Any other attempted assignment shall be void. This Agreement shall inure to the benefit of and bind each party’s permitted assigns and successors.
- U.S. Government End Users. As defined in FAR section 2.101, DFAR section 252.227-7014(a)(1) and DFAR section 252.227-7014(a)(5) or otherwise, all software and accompanying documentation provided in connection with this Agreement are “commercial items,” “commercial computer software,” and or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the U.S. Government shall be governed solely by the terms of this Agreement. You will ensure that each copy used or possessed by or for the government is labeled to reflect the foregoing.
- Interpretation. The word “including” and its grammatical variations shall be deemed to be followed by “without limitation”. Unless the context otherwise requires, the word “or” shall be deemed to mean “and/or”. “Will” shall be deemed to mean “shall”. “Such as”, “for example” and “e.g.,” shall each be deemed to mean “for example, but without limitation”. Unless the context otherwise requires, all references to “dollars”, “Dollars”, “$”, “United States dollars” or the like refer to the dollar that is the lawful currency of the United States of America. Headings in this Agreement are for the purpose of assisting the reader and do not constitute a part hereof.
- Export. You agree to comply with all export laws and restrictions and regulations of the United States or foreign agencies or authorities, and not to export or re-export the Software or any direct product thereof in violation of any such restrictions, laws or regulations, or without all necessary approvals.
- Severability. If for any reason a court of competent jurisdiction finds any provision or portion of this Agreement to be unenforceable, the remainder of this Agreement will continue in full force and effect.
- No Waiver. A party’s failure or delay in enforcing any provision of this Agreement will not operate as a waiver of the right to enforce that provision or any other provision of this Agreement at any time. A waiver of any provision of this Agreement must be in writing, specify the provision to be waived and signed by the party agreeing to the waiver.
- Injunction. The parties agree that a material breach of this Agreement adversely affecting Phoenix’s proprietary rights in the Software would cause irreparable injury to Phoenix for which monetary damages would not be an adequate remedy and that Phoenix shall (without needing to post any bond or other security) be entitled to temporary, preliminary and permanent equitable relief in addition to any remedies Phoenix may have hereunder or at law.
- No Third Party Beneficiaries. This Agreement is not intended to, and does not, create a right or cause of action in any person or entity other than the parties and the indemnitees.