This End User License Agreement (“EULA”) governs use of software (“Software”) distributed by OEM. References to “End User” in this EULA refer to any entity or individual which has obtained a copy of the Software from OEM.
Limited License
Subject to all of the terms and conditions of this EULA, OEM grants to End User a non-transferable, non-sublicensable, non-exclusive license to use the object code form of the Software for its own use, but only in accordance with the technical specification documentation generally made available with the Software and this EULA. “Software” shall also include any documentation and any support and maintenance releases of the same Software provided to End User.
The End User is not allowed to create derivate technologies or to use to offer services derived from the Software
Application Software
End User may install and use the Software, on as many computers as necessary with the limitation imposed by the total number of licensed users. End User may make one additional copy for back-up purpose.
Restrictions
End User shall not (and shall not allow any third party to): (a) decompile, disassemble, or otherwise reverse engineer the Software or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Software by any means whatsoever (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions, and then only with prior written notice to the respective owners;); (b) distribute, sell, sublicense, rent, lease or use the Software (or any portion thereof) for time sharing, hosting, provision of services or like purposes; (c) remove any product identification, proprietary, copyright or other notices contained in the Software; (d) modify or create a derivative work of any part of the Software; or (e) publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Software. You may not permit third parties to benefit from the use or functionality of Software, except as and only to the extent explicitly permitted by the licensing terms, identified in the accompanying Third Party License Terms, governing use of the third party software.
Ownership
Notwithstanding anything to the contrary contained herein, except for the limited license rights expressly provided herein, OEM and its suppliers have and will retain all rights, title and interest (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Software and all copies, modifications and derivative works thereof. End User acknowledges that it is obtaining only a limited license right to the Software and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights are being conveyed to End User under this Agreement or otherwise. End User acknowledges that Bitdefender has a substantial interest in the Software and that, if this EULA is not directly with Bitdefender, then Bitdefender is a third party beneficiary to this EULA, with the understanding that rights, titles and interest in and to certain third party software identified in the accompanying Third Party License Terms are owned by their respective owners.
If requested, End User shall certify in writing that End User is using the Software for the number of servers, with the number of copies, on the system configuration and at the site agreed upon by the parties (as applicable). End User agrees that no more than once annually its use of the Software may be audited by OEM or Bitdefender (or an independent auditor working on such party’s behalf) during normal business hours upon reasonable advance written notice for the purpose of verifying End User’s compliance with this EULA.
Confidentiality
End User acknowledges that, it may obtain information relating to the Software or Bitdefender, including, but not limited to, any code, technology, know-how, ideas, algorithms, testing procedures, structure, interfaces, specifications, documentation, bugs, problem reports, analysis and performance information, and other technical, business, product, and data (“Confidential Information”). End User shall not disclose Confidential Information to any third party or use Confidential Information for any purpose other than the use of the Software as licensed under the EULA.
Warranty Disclaimer
EXCEPT FOR ANY EXPRESS LIMITED WARRANTY OFFERED BY OEM FOR WHICH END USER’S REMEDY IS LIMITED TO REPAIR, REPLACEMENT OR REFUND BY OEM, THE SOFTWARE IS PROVIDED “AS IS” AND NO WARRANTIES ARE MADE TO ANY PERSON OR ENTITY WITH RESPECT TO THE SOFTWARE OR ANY SERVICES AND OEM DISCLAIMS ON ITS OWN BEHALF AND THAT OF ITS LICENSORS, INCLUDING BITDEFENDER, ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Limitation of Damages and Remedies
IN NO EVENT SHALL OEM OR ITS LICENSORS BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THE SOFTWARE. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE TOTAL LIABILITY OWING TO END USER, INCLUDING BUT NOT LIMITED TO DAMAGES OR LIABILITY ARISING OUT OF CONTRACT, TORT, BREACH OF WARRANTY, INFRINGEMENT OR OTHERWISE, SHALL NOT IN ANY EVENT EXCEED THE FEES PAID BY END USER WITH RESPECT TO THE SOFTWARE. NEITHER OEM NOR ITS LICENSORS SHALL BE LIABLE FOR LOSS OR INACCURACY OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, SYSTEM DOWNTIME, FAILURE OF SECURITY MECHANISMS, GOODWILL, PROFITS OR OTHER BUSINESS LOSS, REGARDLESS OF LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE PARTIES AGREE THAT THE LIMITATIONS OF THIS SECTION ARE ESSENTIAL AND THAT END USER WOULD NOT BE PERMITTED TO USE THE SOFTWARE ABSENT THE TERMS OF THIS SECTION. THIS SECTION SHALL SURVIVE AND APPLY EVEN IF ANY REMEDY SPECIFIED IN THIS EULA SHALL BE FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
THIS SOFTWARE IS NOT FAULT-TOLERANT AND IS NOT DESIGNED OR INTENDED FOR USE IN ANY HAZARDOUS ENVIRONMENT REQUIRING FAIL-SAFE PERFORMANCE OR OPERATION. THIS SOFTWARE IS NOT FOR USE IN THE OPERATION OF AIRCRAFT NAVIGATION, NUCLEAR FACILITIES, OR COMMUNICATION SYSTEMS, WEAPONS SYSTEMS, DIRECT OR INDIRECT LIFE-SUPPORT SYSTEMS, AIR TRAFFIC CONTROL, OR ANY APPLICATION OR INSTALLATION WHERE FAILURE COULD RESULT IN DEATH, SEVERE PHYSICAL INJURY OR PROPERTY DAMAGE.
Export Compliance
End User acknowledges that the Software may be subject to export restrictions by the United States government and import restrictions by certain foreign governments. End User shall not and shall not allow any third-party to remove or export from the United States or allow the export or re-export of any part of the Software or any direct product thereof: (i) into (or to a national or resident of) any embargoed or terrorist-supporting country; (ii) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (iii) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (iv) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. End User agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list. The Software is further restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology, or for terrorist activity, without the prior permission of the United States government.
Government Users
The Software is commercial computer software. If the user or licensee of the Software is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Software, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this EULA in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Software was developed fully at private expense. All other use is prohibited.
Termination and Survival
Upon any termination of this EULA, End User shall immediately cease use of the Software and remove all Software from its systems. The terms set forth in the sections entitled Restrictions, Ownership, Confidentiality, Warranty Disclaimer, Limitation of Damages and Remedies shall survive any termination of this EULA.