InstallAnywhere Enterprise Edition

InstallAnywhere Enterprise Edition License Agreement

InstallAnywhere End User Software License Agreement (Rev. IA-14JUN05) IMPORTANT-READ CAREFULLY: This End-User License Agreement ("Agreement") is a legal contract between you (either (a) an individual user or (b) a business organization ("you" and "your") and Licensor (as designated below) for the software further defined below, including any associated media, printed materials and electronic documentation. By clicking on the "I ACCEPT" button, or by downloading, accessing or otherwise using the Software, you agree to be bound by the terms of this Agreement and you represent that you are authorized to enter into this Agreement on behalf of your corporate entity (if applicable). If you do not wish to be bound by the terms of this Agreement, do not install, access or use the Software. As used herein, "Licensor" means Macrovision Corporation, a Delaware USA Corporation, except for users outside of the United States, Canada or Mexico, "Licensor" means Macrovision Licensing & Holding B.V., a Netherlands corporation. 1. DEFINITIONS 1.1. "Software" means all software provided to you by Licensor in Java byte code or object code format only, and all associated files, including, without limitation, any documentation (as further defined below), in any and all versions which Licensor, in its sole option, elects to provide to you, unless such subsequent version(s) are governed by a different license agreement. 1.2. "Distributor" means a dealer or distributor in the business of reselling or relicensing your software, products or services to End Users, without modifications or enhancements by virtue of authority granted by you. Any third party other than you who has the right to add to or modify any part of your products, software or services shall have no rights under this Agreement. 1.3. "Documentation" means the written or on-line instructions, help information, and other reference materials related to the Software, provided to you with the Software. 1.4. "Package" means the folder, directory, executable file, or archive file generated by the Software, which contains all associated files, including, without limitation, any files that make up the installer runtime code, installer bootstrap code, or installer launcher, plus your own files and resources. 1.5. "End User" means a person or an entity receiving your products, software or services in the form of a Package directly from you or your authorized Distributor. 1.6. "Registered" Software means a copy of the Software for which you have paid all applicable fees and received a registration number from Licensor or from an authorized reseller of the Software. 1.7. "Unregistered" Software means a copy of the Software for which you have not paid all of the applicable fees. 2. GRANT OF LICENSE 2.1. License Grant. Upon your acceptance and subject to all of the terms and conditions of this Agreement, Licensor hereby grants you a non-exclusive, non-transferable, perpetual license (unless terminated as provided herein) to: (a) save and use one copy of the Software on the hard disk of a single computer; (b) use the Software by a single named individual to manually create Packages, or by an automated process on a single machine to create Packages in an unattended fashion; (c) make one copy of the Software for archival purposes; (d) use Unregistered Software for evaluation purposes only; and, (e) if the Software is Registered, you may also distribute any Package, created by you from your authorized use of the Registered Software. 2.2. Limitations On Licenses. Except as expressly authorized in Section 2.1, you, your Distributors and/or any person(s) acting with or for you may not: (a) directly or indirectly sell, lease, rent, license, sublicense, redistribute, lend, give, transfer or otherwise distribute or use the Software; (b) use the Software on a computer or network server that allows multiple users access to the Software simultaneously or at different periods of time or use the Software for timesharing or service bureau purposes; (c) modify, translate, or create derivative works from the Software; (d) assign or otherwise transfer rights to the Software; (c) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas, algorithms, methods, or concepts of the Software or any subsequent version thereof or any part thereof; (d) use Unregistered Software to create Packages for any use other than for evaluation purposes of the Software; (e) use Unregistered Software to create Packages that will be distributed to End Users; (f) use Unregistered Software to create Packages to circumvent any intent of Section 2.1; or, (g) install and run the Software on different computers, unless you acquire a license for each separate computer on which the Software runs. 2.3. Source Code. Nothing in this Agreement grants you, your Distributors, and/or any person(s) acting with or for you any rights, license or interest with respect to the source code of the Software. 2.4. Software Updates. Unless you have paid for and are eligible to receive maintenance services, nothing in this Agreement grants you, your Distributors, and/or any person(s) acting with or for you the right to receive any bug fixes, updates, upgrades, modifications or other changes or enhancements to the Software at any time. 3. OWNERSHIP/PROPRIETARY RIGHTS 3.1. Ownership. This Agreement does not convey to you any rights of ownership in the Software. All right, title, and interest in the Software and in any ideas, know-how, and programs which are developed by Licensor in the course of providing any technical services, including any enhancements or modifications made to the Software, shall at all times remain the property of Licensor or its licensor. You acknowledge and agree that the Software is licensed, not sold. You shall not permit the Software to be accessed or used by anyone other than your employees whose duties require such access or use. 3.2. You will not remove, modify or alter any of Licensor's copyright, trademark or proprietary rights notices from any part of the Software, including but not limited to any such notices contained in the physical and/or electronic media or Documentation, in the dialogue or 'about' boxes, in any of the runtime resources and/or in any web-presence or web-enabled notices, code or other embodiments originally contained in or otherwise created by the Software, or in any archival or back-up copies, if applicable. 3.3. Modifications. Licensor reserves the right to modify or discontinue the Software at any time without prior notice to or consent by you. 4. FEES AND CHARGES You agree to pay all Software fees and, if ordered by you, maintenance fees applicable as of the date you register the Software. All fees are in non-refundable United States Dollars. For Users Outside of the United States, Canada or Mexico: All fees are in the currency outlined in the quote/invoice and are non-refundable. Fees are due within thirty (30)-days of the date of the invoice. Maintenance services purchased may be renewed for the next two annual periods for the amount specified on the original invoice for the Software. All shipments of any media will be FOB Origin. 5. RESTRICTED USE DURING EVALUATION PERIOD 5.1. You may use an Unregistered copy of the Software for a period of time limited by the software (the "Evaluation Period"). Use of Unregistered software is not permitted for the creation of Packages for use or distribution of any kind, other than for evaluation purposes. Once you are satisfied that the Unregistered Software fulfills your requirements, you may register the Software and remove this restriction by obtaining a serial number from Licensor or from an authorized reseller of the Software. 5.2. Terms of use for Evaluation Software. Licensor grants you a limited, personal, internal use, non-exclusive, non-transferable license to use the Software solely to evaluate its suitability for your internal business requirements during the Evaluation Period. Without limiting the foregoing, you may not use the Software during the Evaluation Period to create publicly distributed computer software or for any other commercial purpose. This license may be terminated by Licensor at any time upon notice to you and will automatically terminate, without notice, upon the first to occur of the following: (a) the completion of your evaluation of the Software or (b) the expiration of the Evaluation Period. 5.3. Limited Use Software. Portions of the full-use version of the Software may be withheld or unusable and use of the Software may require accessing portions of the Software remotely through the Internet. Full use of the Software may be restricted by technological protections. 6. LIMITED WARRANTY AND DISCLAIMER OF WARRANTY 6.1. You represent and warrant that (i) you have the right to enter into this Agreement, (ii) your use of the Software will not violate any applicable local, state, national or international law, and (iii) you shall only represent to third parties such information and material about the Software as Licensor states in its published product descriptions, advertising and promotional materials or as may be stated in other non-confidential written material furnished by Licensor, as modified from time to time. 6.2. If you have paid a license fee for a Registered copy of the Software, then for a period of thirty (30) days from the date of registration of the Software, Licensor warrants the Software against any defects resulting from the electronic transmission process, and that any Software media supplied by Licensor will be free from defects in materials and workmanship. If you are using an Unregistered copy of the Software, the Software is provided only for evaluation purposes on an "as is" basis. 6.3. Disclaimer of Warranty. THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. LICENSOR EXPRESSLY DISCLAIMS ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Licensor does not warrant that the Software will (a) achieve specific results, (b) operate without interruption, or (c) be error free. 7. Limitation of Remedy and Liability. 7.1. Limitation of Remedy. During the Warranty Period outlined in Section 6.2, in the event of any breach of the warranty in Section 6.2, Licensor's ( and its suppliers), entire liability and your exclusive remedy will be, at Licensor's option, to either repair or replace the defective Software. 7.2. Limitation of Liability. NEITHER LICENSOR NOR ITS LICENSOR, IF ANY, SHALL BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR FOR DAMAGE TO SYSTEMS OR DATA, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LICENSOR'S LIABILITY FOR DAMAGES HEREUNDER SHALL IN NO EVENT EXCEED THE AMOUNT OF LICENSE FEES THAT YOU HAVE PAID. For Users Outside of the United States, Canada or Mexico: No person who is not a party to this Agreement shall be entitled to enforce any terms of the same under the Contracts (Rights of Third Parties) Act 1999. 8. INDEMNIFICATION You agree that you shall, at your own expense, defend, or at your option settle, any action instituted against Licensor or its officers, directors, employees, representatives, agents, suppliers, Distributors or resellers, and pay any award or damages finally assessed against Licensor or its officers, directors, employees, representatives, agents, suppliers, Distributors or resellers or agreed to be paid by you in settlement resulting from such action, insofar as the same is based upon a claim that any of your products, software or services or the use of any of your products software or services either alone or in combination with any part of the Software (i) infringes or misappropriates any copyright, trade secret, or patent or any other proprietary right; (ii) violates any applicable law, statute or regulation; (iii) violates any applicable third party privacy, publicity, intellectual property or other proprietary right; or (iv) causes damages claimed by third parties, provided that Licensor gives you: (a) prompt notice in writing of such action, (b) the right to solely control and direct the investigation, preparation, defense and settlement of the action (provided that any settlement must be approved by Licensor); and (c) reasonable assistance and information. 9. PROTECTION FROM UNAUTHORIZED USE 9.1. Validation Procedure. IN ORDER TO PROTECT THE SOFTWARE FROM UNAUTHORIZED USE, THE SOFTWARE CONTAINS A TRANSPARENT VALIDATION PROCEDURE. IF THE SOFTWARE DETECTS ANY VIOLATION OF THE TERMS OF THIS AGREEMENT, YOU MAY BE UNABLE TO USE THE SOFTWARE AND/OR CREATE UNRESTRICTED INSTALLER PRODUCTS UNTIL THE PROBLEM IS CORRECTED. IF THIS OCCURS, YOU SHOULD IMMEDIATELY CONTACT LICENSOR. 9.2. Reports. Within thirty (30) days following Licensor's written request, and no more frequently than twice in any twelve (12) month period, you shall provide Licensor with a written statement certifying that you are not using copies of the Software in violation of Section 2. 9.3. Audit. During the term of this Agreement and for a period of twelve (12) months thereafter, you shall permit, no more than once in any twelve (12) month period, a third party auditor, upon thirty (30) days prior written notice from Licensor and during normal business hours, to examine and audit your records to determine your compliance with this Agreement and report such findings to Licensor. Licensor shall bear the expense of the audit unless the audit uncovers that you have used the Software in violation of the terms of this Agreement or have unpaid the license fees rightfully owed to Licensor, in which event you shall bear the expenses for such audit. In the event such audit is the result of your failure to provide reports as set forth in Section 10.2 above, then you shall bear the expense of such audit. 10. MAINTENANCE If ordered by you and upon payment of the applicable fee, you are entitled to receive technical support services, including corrections, fixes and enhancements to the Software as such are made generally available (the "maintenance services") from Licensor in accordance with Licensor's then-current maintenance terms for the applicable maintenance level purchased by you. Maintenance services will not include any releases of the Software which Licensor determines to be a separate product or for which Licensor charges its customers extra or separately. Licensor shall not provide any maintenance services to Distributors and End Users and you agree that all support, if any, provided to Distributors and End Users of the Software, or your Products, software and services shall be by you at your expense 11. TERMINATION 11.1. This Agreement (and any licenses granted herein to you or your Distributors or End Users) will terminate immediately if you provide any false information to Licensor or if you fail to comply with the terms and conditions of this Agreement. You may terminate this Agreement at any time by notifying Licensor. Upon the termination of this Agreement, you must delete all copies of the Software from your computer and archives. 11.2. YOU AGREE THAT UPON TERMINATION OR YOUR BREACH OF THIS AGREEMENT FOR ANY REASON, LICENSOR MAY TAKE ACTIONS SO THAT THE SOFTWARE NO LONGER OPERATES OR IS UNABLE TO PRODUCE UNRESTRICTED INSTALLER PRODUCTS. 11.3. In addition, following any termination of this Agreement, you do not have the right to distribute any of your software, products or services containing the installer engine of the Software and/or the application launcher contained within the Software if any of the following conditions apply: (i) you have not Registered the Software; (ii) you paid for the Software but the monies you paid were returned to you; or (iii) you violated any of the terms of this Agreement. 11.4. Survival of certain terms: The following Sections shall survive any expiration or termination: DEFINITIONS, OWNERSHIP/PROPRIETARY RIGHTS, LIMITATION OF LIABILITY, INDEMNIFICATION, TERMINATION and MISCELLANEOUS PROVISIONS and any claims or causes of action then in existence and any payment obligations hereunder. 12. MARKETING You agree to be identified as a customer of Licensor and you agree that Licensor may refer to you by name, trade name and trademark, if applicable, and may briefly describe your business in Licensor's marketing materials and web site. you grant Licensor a license to use your name and any of your tradenames and trademarks solely in connection with the rights granted to Licensor pursuant to this paragraph. 13. MISCELLANEOUS PROVISIONS 13.1. Governing Law and Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of California, irrespective of its choice of law principles. All disputes arising out of this Agreement shall exclusively be brought in the California state courts in and for the County of Santa Clara or the United States District Court for the Northern District of California. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. 13.2. Assignability. This Agreement is personal to you and shall not be assignable by you, by operation of law or otherwise, without the prior written consent of Licensor (at Licensor's sole discretion). Licensor may assign or transfer this Agreement or any of its rights or obligations hereunder at any time. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the parties, their respective successors and permitted assigns. 13.3. Confidential Information. You agree that the Software and any information concerning the Software, including its nature and existence, and any other information disclosed by Licensor to you, will be considered and referred to collectively in this Agreement as "Confidential Information." Confidential Information, however, does not include information that: (i) is now or subsequently becomes generally available to the public through no action of yours; (ii) you can demonstrate to have had it rightfully in your possession prior to disclosure to you by Licensor; (iii) is independently developed by you without the use of any Confidential Information; or (iv) you rightfully obtain it from a third party who has the right to transfer or disclose it. You agree not to disclose, publish, or disseminate Confidential Information to anyone other than your employees who agree to be bound by the terms of this Agreement. All Confidential Information remains the sole property of Licensor. You agree to take reasonable precautions to prevent any unauthorized use, disclosure, publication, or dissemination of Confidential Information. From time to time, you may agree to use pre-release versions of the Software, (often referred to as "beta versions"), the nature and function of which shall also be considered to be Confidential Information. You may use the pre-release Software solely for the purpose of testing the pre-release Software in conjunction with your products and not for production use nor for any third party's benefit without the prior written approval of Licensor in each instance. You have no implied licenses or other rights in the Confidential Information not specifically granted in this Agreement. When requesting and receiving technical support, you will not provide Licensor with any information that is confidential to you or any third party. Any notice, legend, or label to the contrary contained in any materials provided by you to Licensor shall be without effect. 13.4. Other Provisions. This Agreement constitutes the entire understanding and agreement of the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, representations and understandings between the parties regarding the subject matter hereof. Any term or provision of this Agreement may be amended, and the observance of any term of this Agreement may be waived, only by a writing signed by the party to be bound. If any provision of this Agreement is found to be invalid or unenforceable, such provision shall be severed from the Agreement and the remainder of this Agreement shall be interpreted so as best to reasonably effect the intent of the parties hereto. All headings herein are not to be considered in the construction or interpretation of any provision of this Agreement. Licensor and you are independent contractors. Failure of either Licensor or you to insist on performance of any term or condition of this Agreement or to exercise any right or privilege thereunder shall not be construed as a continuing or future waiver of such term, condition, right or privilege. This Agreement has been written in the English language and you waive any rights you may have under the law of your country or province to have this Agreement written in any other language. 13.5. Export Controls: You agree to comply with all applicable U.S. export control laws and regulations, including without limitation, the laws and regulations administered by the United States Department of Commerce and the United States Department of State.   EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS.