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Legal Terms and Conditions EULA

END-USER LICENSE AGREEMENT FOR EXTERRO SOFTWARE

IMPORTANT - READ CAREFULLY

This End-User License Agreement (“EULA”) is a legal agreement between End User (“Licensee”) (either an individual or a single legal or juridical entity) and Exterro, Inc. (“Exterro”) for the Exterro software that accompanies this EULA, which includes associated media, Exterro internet-based services (“Software”), and any training materials and programs (“Program”) that accompany the Software. An amendment or addendum to this EULA may accompany the Software. 

LICENSEE AGREES TO BE BOUND BY THE TERMS OF THIS EULA BY DOWNLOADING, INSTALLING, COPYING, OR USING THE SOFTWARE. IF LICENSEE DOES NOT AGREE TO THE EULA, LICENSEE SHALL NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE. 

THIS SOFTWARE LICENSE ("EULA") ALLOWS THE LICENSEE TO USE THE SOFTWARE, PROGRAM, SOFTWARE MEDIA ("MEDIA"), AND ACCOMPANYING USER DOCUMENTATION ("DOCUMENTATION") CONTAINED IN THIS PACKAGE. THIS EULA BETWEEN LICENSEE AND EXTERRO, INCLUDING ITS SUCCESSORS OR ASSIGNS (REFERRED TO COLLECTIVELY AS "LICENSOR"), SUPERSEDES ANY PRIOR PROPOSAL, REPRESENTATION, OR UNDERSTANDING BETWEEN THE PARTIES. 

  1. LICENSE GRANT. Licensor hereby grants to Licensee, and Licensee accepts a subscription-based, non-exclusive, non-transferable, and non-sublicensable, use of the Software, Program, and Media for the term set forth in an accompanied order form or similar ordering document, in accordance with the terms and conditions of this EULA.  An order form or similar document (“Order Form”) specifies the term of authorized use for the Software (“Subscription”), the fees and other charges for the Software (“License Fees”), any special payment terms, the scope of use, and the numbers, types and identifiers of permitted users, applications, servers, devices, capacity, and locations at or through which the Licensee is permitted to use the Software. Each Order Form is hereby incorporated into and made a part of this EULA for that Order Form. 
     
  2. LICENSE SCOPE. If Licensee has purchased a single-user license, Licensee may install and use the Software on up to four (4) machines for processing use only and should be limited to use by one (1) Licensee. If Licensee has purchased a multi-user license, Licensee may install the software on the number of computers Licensee chooses for Licensee’s organization’s use and allow use of the Software subject and pursuant to the number of concurrent user licenses Licensee has purchased. Licensee is prohibited from sharing the Software with a third party who is not subject to the terms of this EULA. If this product does not contain license manager technology, then Licensee may install the Software on the number of computers and allow use of the Software according to the number of users pursuant to Licensee’s or Licensee’s organization’s license. Licensee may install or use the Software on a distributed or multi-user computer system, such as a local area or wide area network, or multi-user accessible computer, subject and pursuant to the number of concurrent user licenses Licensee has purchased as set forth in the applicable Order Form.
     
  3. LICENSE RESTRICTIONS. Except as specifically provided above for use in a network environment, a license for the Software may not be shared or used concurrently. Licensee shall not permit any device to use the Software or the Software’s user interface unless the device has a separate license for the Software. The Software may be used only on computers owned, leased, or otherwise controlled by Licensee or, in the event of the inoperability of those systems, on a backup system selected by Licensee. Licensee shall not assign, sublicense, transfer, pledge, lease, rent, or share Licensee’s rights under this EULA. Any purported assignment of any rights hereunder is void. Upon loading the Software into Licensee’s system, Licensee may retain the Media for backup purposes. Should Licensee download or otherwise receive a digital copy of the Software and/or Documentation, and then be provided with the Software and/or Documentation in tangible media form, Licensee acknowledges that use of the Software and Documentation is still subject to the conditions of this EULA. The Software and Program also contains company trade secrets, and Licensee may not decompile, reverse engineer, disassemble, or otherwise reduce the Software or Program to human-perceivable form or disable any functionality that limits the use of the Software or Program. Licensee shall not directly or indirectly modify, adapt, translate, rent, sublicense, assign, loan, resell for profit, distribute, or network the Software or Program, disk, or related materials or create derivative works based upon the Software or Program. Licensee shall not publicly display the Software or Program or provide technical training or instruction for monetary compensation or other consideration in any form. All Software and Program Licenses granted hereunder will be automatically terminated if the prohibited actions within this paragraph are taken. Licensee shall not use the Software in a manner not authorized under the Documentation or in violation of any applicable law, rule or regulation, including without limitation, any applicable export/import laws, such as the Export Administration Regulations administered by the U.S. Department of Commerce, the laws and regulations administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations administered by the U.S. Department of State.
     
  4. COPIES. Licensee may make one copy of the Software on a second set of Media solely for the purpose of backup if the original Media is damaged or destroyed. Any such copy of the Software is subject to all terms and conditions of this EULA and includes Licensor’s copyright and other proprietary notices. Except as authorized under this paragraph, Licensee shall not make, nor any person under Licensee’s authority or control shall make any copies of the Software or of any portions thereof.
     
  5. CONSOLIDATION OF LICENSES. Consolidation of multiple single-user licenses, multiple multi-user licenses, or a combination of both under one consolidated multi-user license may be possible under certain circumstances and in Licensor’s sole discretion. Consolidated licenses are subject to the restrictions on multi-user licenses contained herein. If the serial number of any single-user or multi-user Software is covered by or merged into a new consolidated license, then Licensee’s rights to use that single-user or multi-user Software under this EULA is replaced, terminated, and superseded by Licensee’s rights to use the consolidated Software.
     
  6. AUTHORIZED USERS. The Software may be used by all employees of Licensee’s organization at facilities governed by Licensee. Licensee will use commercially reasonable efforts to restrict network or any other access to the Software by anyone outside of Licensee’s organization who is not authorized to use the Software. If Licensee is an educational institution, the Software may only be used by Licensee’s enrolled students, faculty, teaching assistants and administrators on Licensee institution’s computers. Temporary employees, contractors, and consultants of Licensee’s organization who work on-site at Licensee’s facility may also use the Software so long as such temporary employees, contractors and consultants or their computers are included in the total number of licenses purchased by Licensee. Any copies of the Software used by temporary employees, contractors and consultants must be removed from such individual's computers once they cease working at Licensee’s facilities.
     
  7. LICENSE GRANT FOR DOCUMENTATION. The Documentation that accompanies the Software is licensed for internal, non-commercial, reference purposes only. The Documentation shall not be copied or published without prior written approval of Licensor. Applicable copyright laws protect the Software and the Program(s) offered therewith in their entirety.
     
  8. LICENSOR’S RIGHTS. Licensee acknowledges and agrees that the Software consists of proprietary, published, and unpublished property of Licensor protected under United States copyright law and trade secret laws, international treaties and conventions, and other national and international laws of general applicability respecting intellectual property rights. Licensee further acknowledges and agrees that all rights, title, interest, and other intellectual property rights in and to the Software are and shall remain with Licensor. This EULA does not convey to Licensee an interest in or to the Software, but only a limited right of use revocable in accordance with the terms of this EULA. The Software is licensed, not sold, and the use of the word “purchase” with respect to licenses granted herein refers to License Fees for such use. This EULA does not grant Licensee any rights to trademarks or service marks of Exterro. Exterro reserves all rights not expressly granted to Licensee in this EULA.
     
  9. LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION, AND DISASSEMBLY.  Licensee shall not reverse engineer, decompile, or disassemble the Software or create any derivative work based on the Software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
     
  10. NO RENTAL/COMMERCIAL HOSTING. Licensee shall not rent, lease, lend, or provide commercial hosting services with the Software or use the Software in a service bureau capacity.
     
  11. PRE-PRODUCTION SOFTWARE. As an accommodation to Licensee, Licensor may supply Licensee with or allow access to pre-production releases of the Software (which may be labeled "Alpha" or "Beta" or otherwise identified as pre-production versions). Pre-production releases of the Software are provided “AS-IS”; are not covered by any warranty, express or implied; and are not intended for production use. Pre-production releases of the Software are provided without additional charge for demonstration and trial use purposes only and may expire automatically at the end of a pre-determined trial period or upon notice from Licensor.
     
  12. LICENSE FEES. The License Fees paid by Licensee are paid in consideration of the licenses granted under this EULA.
     
  13. SOFTWARE INSTALLATION. It shall be Licensee’s sole responsibility to install and make operational the Software on Licensee’s system. In the event Licensee needs installation assistance, such services may be available from Licensor at an additional cost to Licensee.
     
  14. TERM. This EULA is effective upon Licensee’s breaking of any of the seals on the package containing the Software or by the download, installation, or use of the Software, and continues until terminated as provided herein or by operation of law.  Licensor may terminate this EULA upon the breach by Licensee of any term hereof. Upon such termination by Licensor, Licensee shall immediately return or destroy to Licensor the entire Software, including the Media, Software, and Documentation, and all copies thereof and extracts therefrom, and erase all copies of the Software that may be located on any systems owned or controlled by Licensee or upon which Licensee knows a copy of the Software has been placed.
     
  15. EXPORT RESTRICTIONS. Licensee acknowledges that the Software is subject to the export control laws and regulations of the United States of America and other countries. Licensee shall comply with all applicable national and international laws, regulations, and rules that apply to the Software, including without limitation, the U.S. Export Administration Regulations, as well as end-user, end-use, and destination restrictions issued by U.S. and other governments. Licensee shall complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software available to individuals or entities outside the US. Licensee shall not, directly, or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation.
     
  16. LIMITED WARRANTY. Licensor warrants, for Licensee’s benefit alone, that the Media in which the Software is embedded shall, for a period of sixty (60) days from the date of Licensee’s purchase of the Software (referred to as the "Warranty Period"), be free from defects in material and workmanship. Licensor further warrants, for Licensee’s benefit alone, that during the Warranty Period the software shall operate substantially in accordance with the Documentation. Licensee’s exclusive remedy for breach of this warranty is for Exterro to correct or provide a work around for the defect upon submission of a support ticket.  If the defect continues to cause a material failure in Licensee’s Software without correction or work-around thirty (30) days after written notice to Exterro, then Licensee may terminate the affected Subscription and Exterro shall refund to Licensee any prepaid fees covering the remainder of the Subscription for the affected Software after the date of termination.  Notwithstanding any other provision in this EULA, Exterro shall have no obligation to support and shall have no liability or obligation due to unavailability, malfunction, or degradation of performance in the Software due to modifications of the Software by any person other than Exterro or a person acting at Exterro’s direction.
     
  17. EXCLUSIVE REMEDY AND DISCLAIMER. LICENSEE AGREES THAT THE FOREGOING CONSTITUTES LICENSEE’S SOLE AND EXCLUSIVE REMEDY FOR BREACH BY LICENSOR OF ANY WARRANTIES MADE UNDER THIS EULA. EXCEPT FOR THE WARRANTIES SET FORTH ABOVE, THE MEDIA, SOFTWARE, AND DOCUMENTATION ARE LICENSED "AS-IS", AND LICENSOR DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
     
  18. LIMITATION OF LIABILITY. IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES OR LOST PROFITS OR ANY SIMILAR CLAIMS, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LICENSOR’S CUMULATIVE LIABILITY TO LICENSEE OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS EULA OR THE USE OF THE SOFTWARE SHALL BE LIMITED TO REPLACEMENT OF THE SOFTWARE AND SHALL NOT EXCEED THE LICENSE FEE PAID OR PAYABLE TO LICENSOR BY LICENSEE FOR THE USE OF THE SOFTWARE IN THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY. 
     
  19. INFRINGEMENT INDEMNITY. Licensor shall indemnify and defend Licensee from and against third-party claims against Licensee that the Software infringes or misappropriates any patent, trademark, trade secret, copyright or other proprietary right of such third party, provided that Licensee gives Licensor: (i) written notice of any such claim, action or demand within ten (10) business days of Licensee’s knowledge thereof; (ii) control of the defense and settlement thereof; and (iii) reasonable assistance in such defense or settlement (for which Licensor will pay reasonable and documented out-of-pocket expenses). If any Software becomes or, in Licensor’s opinion, is likely to become the subject of any injunction preventing use as contemplated herein, Licensor may, at its option, (a) procure for Licensee the right to continue using such Software, (b) replace or modify such Software so that it becomes non-infringing without substantially compromising its functionality, or, if (a) and (b) are not commercially reasonably available to Licensor, then (c) terminate Licensee’s license to the allegedly infringing Software and refund the License Fees covering the remaining portion of the applicable Subscription for the affected Software after the date of termination.
     
  20. INFRINGEMENT INDEMNITY EXCEPTIONS. The foregoing obligation of Licensor does not apply with respect to (1) any products not supplied by Licensor, (2) Software which is modified by any person other than Licensor or a person acting at Licensor’s direction after delivery by Licensor, if the alleged infringement relates to such modification, (3) Software combined with other products, processes or materials where the alleged infringement relates to such combination, (4) Software where Licensee continues the allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (5) any information or data stored by Licensee that infringes upon or misappropriate the intellectual property of such third party, and in each case, Licensee shall defend and indemnify Licensor from and against such claims subject to the same conditions noted above. THE FOREGOING STATES THE ENTIRE LIABILITY OF LICENSOR WITH RESPECT TO INFRINGEMENT OF PATENTS, COPYRIGHTS, TRADE SECRETS OR OTHER INTELLECTUAL PROPERTY RIGHTS TO THE SOFTWARE OR ANY PART THEREOF OR BY THEIR OPERATION.
     
  21. LICENSEE INDEMNIFICATION. Licensee accepts full legal responsibility for all research and investigations performed through Licensee’s use of the Software. Licensee agrees to hold harmless and indemnify Licensor for any and all demands, claims, legal action and damages, including all attorney’s fees and costs, against Licensor, which arise out of Licensee’s use of the Software. In any legal action regarding the indemnification contained in the EULA, the prevailing party shall be entitled to recover from the non-prevailing party its attorney’s fees and costs.
     
  22. CONFIDENTIALITY. By virtue of this EULA, the parties may have access to information that is confidential to one another ("Confidential Information"). Confidential Information includes, without limitation, the Software, Program, Documentation, the terms and pricing under this EULA, and all information clearly identified as confidential or reasonably deemed to be confidential based on the circumstances and industry practices.  A party's Confidential Information shall not include information that (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party's lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on disclosure; or (d) is independently developed by the other party. The parties agree to hold each other's Confidential Information in confidence during the term of this EULA and thereafter. The parties agree, unless required by law, not to make each other's Confidential Information available in any form to any third party for any purpose other than to further this EULA. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of this EULA. Each party agrees that remedies at law may not be adequate to protect the rights of the other party under this Section and that a non-breaching party may seek injunctive or other equitable relief to enforce such rights. This EULA in and of itself shall be considered the Confidential Information of each Party and shall be subject to the obligations, terms, and conditions described herein. Notwithstanding the foregoing, the parties agree that Exterro may disclose to third parties, only for Exterro's internal business development and marketing efforts, the fact that End User has retained or licensed certain Exterro's services or products.
     
  23. GOVERNING LAW. This EULA is to be construed and governed in accordance with the laws of the State of Oregon without regard to provisions relating to conflicts of laws. Any dispute arising out of or with respect to this EULA between Licensee and Licensor shall be solely adjudicated by a competent federal or state court situated in Portland, Oregon. Licensee and Licensor consent to the venue and jurisdiction of such court for purposes of any such dispute. Each Party hereby waives any right to a jury trial in any dispute between them. The Parties agree that the United Nations Convention on the International Sale of Goods does not apply to this EULA. Licensee shall abide by the terms of any international, national, or local laws and regulations that apply to Licensee’s use of the Software including, without limitation, laws respecting data privacy and individually identifiable information.
     
  24. SEVERABILITY. The parties acknowledge that, should any court of competent jurisdiction declare any term of this EULA void or unenforceable, such declaration does not have any effect on the remaining terms hereof.
     
  25. NO WAIVER. The failure of either Licensee or Licensor 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 breach.
     
  26. ENTIRE AGREEMENT. This EULA contains the entire understanding of the parties relating to the subject matter contained herein and supersedes all prior agreements and understandings, written or oral, relating to the subject matter hereof. This EULA may be modified or amended only by written agreement signed by both parties.