End User License Agreement For Device42 Software – Updated 08/08/23
IMPORTANT-READ CAREFULLY: BY DOWNLOADING, INSTALLING, OR USING THE SOFTWARE, YOU AND THE BUSINESS ENTITY YOU REPRESENT AGREE TO BE BOUND BY THE TERMS OF THIS END USER LICENSE AGREEMENT (“EULA”). IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU MUST NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE. PLEASE NOTE THAT WE MAY UPDATE THE EULA AT ANY TIME WITH OR WITHOUT NOTICE, AND YOUR USE OF THE SOFTWARE AFTER WE HAVE POSTED THE UPDATED EULA WILL CONSTITUTE YOUR CONSENT TO THE UPDATE. YOU SHOULD CHECK THE DEVICE42.COM WEBSITE FROM TIME TO TIME FOR UPDATES.
This End User License Agreement (the “EULA”) for the Software is hereby entered into and agreed upon by You and the business entity you represent (collectively, “you” or “Licensee”) and Device42, Inc (“Device42”).
EVALUATION LICENSE: If you are licensing the Software for evaluation purposes, your use of the Software is only permitted for the period limited by the Software License Key. Notwithstanding any other provision in this EULA, an Evaluation License of the Software is provided “AS-IS” without support or warranty of any kind, expressed or implied.
1. DEFINITIONS
1.1 “Documentation” means, collectively, the operation instructions, release notes, user manuals and/or help files and training materials for the Software in electronic or written form.
1.2 “Software” means software products that are licensed to Licensee under this Agreement, including, but not limited to, Device42 virtual appliance, any related components purchased or provided with the Software, Documentation, and any maintenance releases thereto. The term “Software” includes the Open Source Software described below except where the context or this Agreement indicates otherwise.
1.3 “Software License Key” means a valid license key issued to Licensee to activate and use the Software.
1.4 “Open Source Software” means various software components including open source software components that may be part of the Software (as further described in Section 2).
1.5 “Client Data” shall mean Client’s computing platforms and/or third party or private data center infrastructure providers’ assets, services and object data, accessed through Client’s or related parties’ account(s) in connection with its authorized use of the Software, including all data regarding Client’s users that is processed by the Software and any other data, information or material that Client provides or makes available to Device42 in the course of using the Software.
2. General Use.
Open source Software and/or Components. Portions of the Software provided to Licensee contain Open Source Software or publicly available content under separate license and copyright requirements which can be found at /open_source_license.txt. Nothing in this Agreement limits an end user’s rights under, or grants the Licensee rights that supersede, the terms of any applicable Open Source Software license agreement.
3. GRANT OF LICENSE. Upon payment of the fees applicable under this Agreement, Device42 hereby grants to Licensee a non-exclusive, non-transferable license to use the Software and Documentation, for internal purposes, for the period of time for which Licensee has paid the fees, subject to the following terms:
For each Software license key that Licensee purchases, Licensee may: (i) use the Software on any single Server; and (ii) copy the Software for back-up and archival purposes, provided any copy must contain all of the original Software’s proprietary notices.
The Software is “in use” on a Server when it is loaded into temporary memory or installed in permanent memory (Hard Drive, CD-ROM or other storage device). Licensee agrees to use Licensee’s best efforts to prevent and protect the contents of the Software and Documentation from unauthorized use or disclosure. Licensee agrees to only install a Software License Key obtained directly from Device42.
Licensee is responsible for ensuring that all individuals who access the Software through Licensee are familiar with the terms of this Agreement and that such individuals use the Software in compliance with these terms.
4. LICENSE RESTRICTIONS
4.1 Licensee may not: (i) permit other individuals to use the Software or Documentation except as expressly provided in this Agreement; (ii) modify, translate, reverse engineer, decompile, disassemble (except to the extent that this restriction is expressly prohibited by law) or create derivative works based upon the Software or Documentation; (iii) copy the Software or Documentation (except for back-up or archival purposes); (iv) rent, lease, transfer, or otherwise grant rights to the Software or Documentation except to the extent expressly permitted under this Agreement; or (v) remove any proprietary notices or labels on the Software or Documentation. In addition to, and without limiting the foregoing, Licensee may not break out of the virtual machine console menu or gain access to the shell via any other means in order to execute commands from the command line.
4.2 Export Restrictions. Licensee represents that it is not a national or resident of any country subject to U.S. export restrictions. Licensee agree that it will not export or re-export, or allow the export or re-export of, the Software or any technology or information contained therein, or any direct product thereof, to any country, person, entity or end user subject to U.S. export restrictions. Licensee represents that neither the U.S. Bureau of Export Administration nor any other federal agency has suspended, revoked or denied Licensee’s export privileges. Licensee agree to comply with all applicable export laws, restrictions, and regulations of any United States or foreign agency or authority. Licensee agree not to export or re-export, or allow the export or re-export of, the Software or any technology or information contained therein, or any direct product thereof, from the country in which Licensee has installed and is using the Software in violation of any such laws, restrictions, or regulations.
4.3 Compliance with Applicable Laws. Without limiting anything in Section 4.2, Licensee agrees that it will only use the Software and Documentation in a manner that complies with all applicable laws in the jurisdictions in which Licensee will use the Software and Documentation, including, but not limited to, applicable restrictions concerning copyright and other intellectual property rights.
4.4 Use by Service Providers. If Licensee is licensing the Software for use as a service provider, it may use the Software solely as a tool in connection with services it provides to its customers. Licensee may not provide access to the Software to any customer unless the customer has acknowledged an electronic version or signed a written version of this EULA prior to gaining access and paid any applicable fees.
4.5 Bundled Purchases. If Licensee is licensing the Software for a Data Center Consolidation/Migration, Licensee agrees that it must purchase a separate Device42 limited term project-specific Software license. “ITOM” and “ITOM+” Software bundles may not be used for Data Center Consolidation/Migration. “Data Center Consolidation/Migration” means the process of downsizing or consolidating many servers, storage systems, networking systems, or even locations into a more efficient set of systems, with the goal of lowering costs and improving performance.
5. Rights, Title, and Interest to Intellectual Property.
5.1 Except for the license conveyed herein, all rights, title, and interest in and to the Software, Documentation, and corresponding intellectual property shall remain in Device42 or its suppliers or are publicly available. The Software and Documentation are protected by the copyright and intellectual property laws of the United States and international copyright and intellectual property laws and treaties. All rights not expressly granted under this Agreement are reserved by Device42, its suppliers, or third parties.
5.2 Except for the express licenses granted to Device42 hereunder, Client shall own all right, title and interest (including all intellectual property and other proprietary rights) in and to the Client Data. Client grants Device42 a perpetual, non-exclusive, fully paid up, royalty-free, sublicensable right and license to use Client Data to provide and improve the Software and in an aggregated and anonymized form to derive statistical and performance information related to the Software.
6. Fees; Taxes. Fees are billed according to the schedule outlined in the quote for the Software. Invoices shall be paid by Licensee within thirty (30) days of receipt. Any late payments to Device42 will accrue interest at the lesser of (i) eighteen percent (18%) per annum and (ii) the maximum interest allowable by law. Licensee must notify Device42 in writing within thirty (30) days of receipt of invoice of any disputed amounts and must pay all undisputed amounts in full when due. Licensee shall be responsible for all reasonable costs incurred by Device42 in connection with collecting amounts past due, including without limitation, attorney and collection fees. All fees and expenses are exclusive of any national, state, municipal, or other governmental excise, sales, value-added and occupational taxes and other fees and levies, all of which Licensee shall be responsible for and will pay in full, other than taxes based on Device42’s net income. Fees for the Software for subsequent renewal license terms shall not increase by more than five percent (5%) of the amount of the immediately preceding fee.
7. Limited Warranties; Exclusions. Device42 warrants to Licensee that for a period of thirty (30) days following delivery of the Software to Licensee that the Software will perform substantially in conformance with the Documentation. Device42 does not warrant that the Software will meet all of Licensee’s requirements or that the use of the Software will be uninterrupted or error-free. The foregoing warranty applies only to failures in operation of the Software that are reproducible in standalone form and does not apply to: (i) a failure by Licensee to operate the Software within the systems requirements provided for the Software or Licensee’s use of the Software in combination with other products not provided or expressly approved by Device42; (ii) Software that is modified or altered by Licensee or any third party that is not authorized, in writing, by Device42; (iii) Software that is operated in violation of this Agreement or other than in accordance with the Documentation; (iv) failures that are caused by other software or hardware products; or (v) Licensee’s failure or refusal to implement maintenance releases. To the maximum extent permitted under applicable law, as Device42 and its supplier’s entire liability, and as Licensee’s exclusive remedy for any breach of the foregoing warranty, Device42 will, at its sole option and expense, promptly repair or replace any Software that fails to meet this limited warranty or, if Device42 is unable to repair or replace the Software, terminate the license and refund to Licensee a pro-rated portion of the applicable license fees for the period following termination, which shall be paid upon return of the nonconforming item to Device42. The warranty is void if failure of the Software has resulted from accident, abuse, or misapplication. Any replacement Software will be warranted for 30 days.
EXCEPT AS EXPRESSLY STATED IN THIS SECTION, THE SOFTWARE IS LICENSED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
8. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL DEVICE42 BE LIABLE TO LICENSEE, IN THE AGGREGATE, FOR MORE THAN THE AMOUNT OF LICENSE FEES THAT LICENSEE HAS PAID TO DEVICE42 IN THE PRECEDING SIX (6) MONTHS OR BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS, LOST SAVINGS, BUSINESS INTERRUPTION, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, EVEN IF DEVICE42 HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE THEORY OF LIABILITY. THIS PARAGRAPH DOES NOT LIMIT LIABILITY FOR BODILY INJURY OR DEATH AS A RESULT OF DEVLICE42’S NEGLIGENCE TO THE EXTENT SUCH LIABILITY CANNOT BE EXCLUDED UNDER APPLICABLE LAW.
9. IP Indemnity. Device42 shall defend Licensee against any third party claim that Licensee’s use of the Software in accordance with the terms of this Agreement infringes any U.S. copyright, trademark or patent, and Device42 will indemnify Licensee against damages awarded on any such claim, provided that Device42 is promptly notified of any such claim and given reasonable assistance (at Device42’s expense) with, and sole control over, the defense and all negotiations for a settlement or compromise. Failure to so notify Device42 shall not relieve Device42 of its obligation to indemnify Licensee except to the extent such failure to notify shall have materially impaired Device42’s ability to defend against the claim. Device42 will not be responsible for any settlement it does not approve in writing. In the event that Licensee’s use of the Software is determined to infringe any third party’s intellectual property rights, Device42 will, at its option, and at no cost to Licensee, either (a) procure a license enabling Licensee to continue to use the Software, (b) replace the Software with substantially equivalent software, or (c) terminate this Agreement and refund a pro-rated portion of the fee paid by Licensee hereunder for the period following termination, which shall be paid upon return of the Software to Device42. The obligations of Device42 under this Section 9 do not apply with respect to Software or portions or components thereof (1) that are modified or altered by Licensee or any third party that is not authorized, in writing, by Device42, (2) that are combined with other products, processes or materials to the extent that the alleged infringement is based on such combination, (3) to the extent that Licensee continued allegedly infringing activity after being notified thereof or of the availability of maintenance releases or other modifications that would have avoided the alleged infringement, or (4) where Licensee uses the Software in violation of this Agreement or other than in accordance with the Documentation. This Section sets forth Licensee’s sole and exclusive remedy and Device42’s sole obligation with respect to claims of infringement.
10. Licensee’s Indemnity. Licensee is responsible for the consequences of its use of the Software. Licensee agrees to defend, indemnify and hold harmless Device42, and any of its directors, officers, employees, affiliates, suppliers, resellers or agents, from and against any and all losses, damages, liabilities, costs and other expenses (including reasonable attorneys’ fees) based on any claim brought by a third party, arising from Licensee’s use or modification of the Software except to the extent Device42 is required to indemnify Licensee under Section 9, provided that Licensee is promptly notified of any and all such claims and given reasonable assistance (at Licensee’s expense) with, and sole control over, the defense and all negotiations for a settlement or compromise. Failure to so notify Licensee shall not relieve Licensee of its obligation to indemnify Device42 except to the extent such failure to notify shall have materially impaired Licensee’s ability to defend against the claim. Licensee will not be responsible for any settlement it does not approve in writing.
11. Confidentiality. Licensee will treat the Software as a trade secret and proprietary information belonging to Device42 that is being made available to Licensee in confidence. Licensee agrees to treat the Software with at least the same care as it treats its own highly confidential or proprietary information, but not less than reasonable care. Device42 will not use any information provided by Licensee that is marked confidential or that a reasonable person would presume is confidential for any purpose other than to provide the Software and Maintenance under this Agreement. Further, Device42 will restrict disclosure of such confidential information to employees or contractors of Device42 who have a need to know such information for purposes of this Agreement.
12. Support and Maintenance terms and conditions.
12.1 Maintenance Services. Device42 agrees to provide to Licensee, during the validity of the license and term of this Agreement, support and maintenance (collectively “Maintenance”) as follows:
12.2. Support: Device42 will provide email and online support to Licensee for current versions of the Software. Licensee agrees to provide adequate information to Device42 to assist in the investigation and to confirm that any problems have been resolved. Device42 does not provide guaranteed response time but will make good faith effort to answer emails and online support tickets within forty-eight (48) hours or less during weekdays, excluding holidays.
12.3 Maintenance: Device42 will supply, at no additional charge, any improvements, upgrades, or modifications to the Software that Device42 makes generally available. Any such improvements, upgrades, or modifications shall become part of the Software for all purposes of this Agreement. Licensee acknowledges and agrees that the Maintenance to be provided by Device42 hereunder is limited to the most current version of the Software.
12.4 Exclusions. Device42’s obligation to provide Support is contingent upon proper use of the Software and full compliance with this Agreement. Moreover, Device42 shall be under no obligation to provide Support should such services be required due to (a) failure to operate the Software within the systems requirements provided for the Software or use of the Software in combination with other products not provided or expressly approved by Device42 (b) any modification or attempted modification of the Software by Licensee or any third party that is not authorized, in writing, by Device42 (c) Licensee’s failure or refusal to implement maintenance releases(d) Software that is operated in violation of this Agreement or other than in accordance with the Documentation or Device42’s written instructions, or (e) failures that are caused by other software or hardware products.
13. Term and Termination. This Agreement shall remain in effective for the term of any order for the Software. Upon renewal of such order for the Software, this Agreement shall automatically renew. Device42 may terminate this Agreement, including the license hereunder, if Licensee fails to comply with any of its terms and does not cure the same, if curable, within 10 days after receiving written notice thereof. Without limiting the foregoing, Licensee’s license under this Agreement shall automatically terminate without further action required on the part of Device42 if Licensee uses the Software outside of the scope of its license or violates its confidentiality obligations. Device42 shall have the right to audit Licensee’s use of the Software during the term of this Agreement and for two (2) years following termination.
14. Miscellaneous. If any provision of this Agreement is held to be unenforceable, that shall not affect the enforceability of the remaining provisions, and such provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect while most nearly adhering to the intent expressed herein. This Agreement shall be governed by the laws of the State of Connecticut and of the United States, without regard to any conflict of laws provisions, except that the United Nations Convention on the International Sale of Goods shall not apply. Licensee hereby consents to jurisdiction of the courts of the state and federal courts in or near New Haven County, Connecticut. Licensee may not assign, sublicense or otherwise transfer this Agreement or any of its rights hereunder without Device42’s prior written consent. The provisions of Sections 5, 6, 8, 9, 10 and 11 shall survive the expiration or termination of this Agreement. Device42 may refer to Licensee’s name and logo in its marketing materials as a customer of the Software. Licensee will work with Device42 to develop, at Device42’s sole expense, a case study detailing the use of Software and the benefits to Licensee from the Software. Device42 may publish such case study.
15. Complete Agreement. This Agreement constitutes the entire agreement between the Parties and supersedes all prior or contemporaneous communications, agreements and understandings, written or oral, with respect to the subject matter hereof including without limitation any purchase order issued in connection with this Agreement unless otherwise expressly agreed by Device42 in such purchase order or other written document. No waiver shall be enforceable against Device42 unless it is in a writing signed by Device42.
16. Restricted Rights. Software is provided to non-DOD agencies with RESTRICTED RIGHTS and its supporting documentation is provided with LIMITED RIGHTS. Use, duplication, or disclosure by the government is subject to the restrictions as set forth in subparagraph “C” of the Commercial Computer Software – Restricted Rights clause at FAR 52.227-19. In the event the sale is to a DOD agency, the government’s rights in software, supporting documentation, and technical data are governed by the restrictions in the Technical Data Commercial Items clause at DFARS 252.227-7015 and DFARS 227.7202. Manufacturer is Device42, 600 Saw Mill Road, Suite 242, West Haven, CT 06516.
IN WITNESS WHEREOF, the Parties by their duly authorized officers have executed this Agreement as of the date last set forth below:
Device42, Inc. Customer