(Rev. Oct. 2015v2)
IMPORTANT – READ CAREFULLY
THIS EULA IS A LEGAL AGREEMENT BETWEEN YOU (“YOU” OR “LICENSEE”) AND BRIGHT PATTERN, INC, A DELAWARE CORPORATION (“BRIGHT PATTERN”), FOR BRIGHT PATTERN SOFTWARE PRODUCT, WHICH INCLUDES COMPUTER SOFTWARE AND ASSOCIATED MEDIA AND DOCUMENTATION (COLLECTIVELY “LICENSED SOFTWARE”). BY OPENING THE SOFTWARE PACKAGING, COMPLETING THE ACTIVATION PROCESS, OR DOWNLOADING, INSTALLING, ACCESSING OR UTILIZING THE LICENSED SOFTWARE OR CLICKING THE “I ACCEPT” BUTTON, YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE WITH THE TERMS OF THIS EULA, PROMPTLY RETURN THE UNUSED LICENSED SOFTWARE TO THE PLACE FROM WHICH YOU OBTAINED IT FOR A REFUND.
1. Protection/Ownership. The Licensed Software may include software owned by third-parties (collectively “Third-Party Owners”). The Third-Party Owners are third-party beneficiaries of this EULA and You agree to be bound to them under all the terms and conditions of this EULA, unless and to the extent that a separate license agreement for such software governs. The Licensed Software is protected by copyright and other intellectual property laws. BRIGHT PATTERN or a Third Party Owner retain ownership of the Licensed Software and the copies of the Licensed Software provided herewith. The Licensed Software is licensed to Licensee for use subject to the terms set forth in this EULA. You agree that this is a license only and that no title passes to You. You agree not to challenge BRIGHT PATTERN’s rights in or otherwise attempt to assert any rights in the Licensed Software, except those provided under this EULA.
2. Grant and Scope of License. Subject to the terms and conditions of this EULA, BRIGHT PATTERN hereby grants to Licensee, and Licensee fully accepts upon delivery, a nonexclusive, nontransferable and perpetual (unless earlier terminated as provided below) right to use only the executable version (not source code) of the Licensed Software for its own internal business purposes. Your right to use the Licensed Software is limited to only the licensing limits (such as users, assets, modules, technology foundation, databases and other features and benefits) that You have ordered and paid for in accordance with the applicable purchase order or other order documentation. You may use the Licensed Software only as expressly permitted under this EULA and in accordance with the accompanying Documentation and any other written instructions provided by BRIGHT PATTERN. Certain Licensed Software modules may require that You have a valid license for a specific version (such as the last corresponding version) of a corresponding BRIGHT PATTERN module, technology foundation product or other application, or product of a third party, and may terminate upon termination of such other product license.
3. Restrictions. You agree not to copy the Licensed Software, unless and except as expressly permitted in the accompanying Documentation. If You make such permitted copies of the Licensed Software, the original copy of the Licensed Software and all copies that You make may not leave your control, and title to all copies remain with BRIGHT PATTERN and/or a Third Party Owner. You agree not to modify, decompile, translate, disassemble or reverse engineer the Licensed Software or otherwise attempt to discover any source code or underlying confidential or proprietary information. You agree not to distribute, rent or lease any portion of the Licensed Software (including any feature enabled by the Licensed Software). You agree not to use any portion of the Licensed Software (including any feature enabled by the Licensed Software) in a commercial hosting, application service provider environment, service bureau or managed service or otherwise commercially exploit the Licensed Software. You may not create any derivative works to the Licensed Software except to facilitate Your permitted use of the Licensed Software, provided that Your use of such limited derivative works is subject to the same restrictions as described in this EULA (including the restrictions on distribution, rental, hosting or other commercial exploitation of such limited derivative works). You acknowledge that the Licensed Software contains information deemed confidential or otherwise proprietary to BRIGHT PATTERN or a Third Party Owner, and You agree to handle the Licensed Software with at least the same degree of care employed with respect to Your own confidential or proprietary information.
4. License Limits. As mentioned above, Your use of the Licensed Software is limited to certain features and benefits based upon the specific license limits that You have ordered and paid for. License limits on the Licensed Software may include one or more of the following: technology foundation; named user: concurrent user: server: database and/or asset. The definition and applicability of any of these license limits are defined by the order and pricing document, the Documentation and other written agreement between You and BRIGHT PATTERN related to the specific version of the Licensed Software at the time You license the Licensed Software. For any additional or future acquisitions of the Licensed Software or any other BRIGHT PATTERN product, BRIGHT PATTERN may at any time change the definition or applicability of these license limits or any other features, benefits, products or pricing at any time without notice.
Should You exceed any of Your license limits, then You agree to pay the then applicable full list price for the excess usage in accordance with BRIGHT PATTERN pricing program, as well as the full Maintenance and Support Fee related to these additional products. Different modules of the Licensed Software may install separately within the Licensed Software package, however, all the software enabled and/or installed are subject to the terms and conditions of this EULA.
5. Installation and Verification. The installation and verification of the Licensed Software may entail completion of a serialization and/or license file deployment procedure in which You will be required to enter serialization code(s) and/or install license file(s) (“Activation Keys”) provided to You as a part of the Licensed Software. You agree not to share the Activation Keys provided to You to any third party other than an authorized BRIGHT PATTERN reseller (“Reseller”) with which You have engaged. The Activation Keys indicate to the loaded Licensed Software the software features and/or modules enabled with licensed configuration limits as applicable, including (i) number of authorized concurrent users, named users and/or assets covered by the license; (ii) server restrictions; (iii) database restrictions; and (iv) technology foundation restrictions. You may be required to electronically register the Licensed Software to one application server machine or other physical device by connecting to BRIGHT PATTERN’ activation or registration servers (or website). Further, the Activation Keys system may disable Your use of the Licensed Software in the event You attempt to exceed or otherwise violate the terms of this EULA.
6. Privacy. The installation process may require you to register the Licensed Software with user information and the Licensed Software may contain an automated audit tool whereby BRIGHT PATTERN will receive notification of Your licensed limits and user information. Any personal information collected (1) will be used solely for registration and license limit auditing purposes for the Licensed Software and to provide You with important information about the Licensed Software, (2) will be stored in computer servers with limited access that are located in controlled facilities and/or under TLS protocol, (3) may be stored and processed in the United States or any other country in which BRIGHT PATTERN or its affiliates, subsidiaries or agents maintain facilities and by using this Licensed Software, you consent to any such transfer of information outside of your country, (4) may be stored indefinitely, (5) will not be shared with any government agency, private organization, or the public, except with Licensee‘s name as a reference company in the context of sales presentations and marketing activities.
7. Ongoing Audit. Certain Licensed Software require that BRIGHT PATTERN periodically audit Your use of the Licensed Software to verify Your compliance with Your license limits, and in most instances, such audits will be performed remotely through electronic access to the Licensed Software. You agree to permit BRIGHT PATTERN (or its agent) to electronically monitor and/or audit Your use of the Licensed Software for the sole purpose of verifying Your compliance with the terms of Your license.
8. Updates. If the Licensed Software is an Update (defined as an upgrade, modified version, updates, addition, and copies of the Licensed Software, if any, made generally available by BRIGHT PATTERN as an “Update” to the Licensed Software to those customers with a valid and current maintenance agreement with BRIGHT PATTERN) to a previous version of the Licensed Software, you must possess a valid license to such previous version in order to use such Update. All Updates are provided to You on a license exchange basis. You agree that by using an Update You voluntarily terminate Your right to use any previous version of the Licensed Software; provided, however, that you may continue to use previous versions of the Licensed Software solely to assist You in the transition to the Update.
9. Transfer. To the maximum extent permitted by applicable law, Licensee may not resell or otherwise transfer for value the Licensed Software. Notwithstanding the foregoing, Licensee may assign all of its licensed rights and duties under this EULA to a third-party that: (a) directly or indirectly controls Licensee; (b) is controlled by or under common control with Licensee; or (c) purchases all or substantially all of Licensee’s assets; provided, however, that (i) Licensee gives written notice to BRIGHT PATTERN of the transfer or assignment; (ii) the permitted third-party assignee agrees to be bound by all the terms herein and completes and returns a registration card or other requested transfer documentation to BRIGHT PATTERN; and (iii) in no circumstance shall any transfer or assignment, unless specifically agreed upon in writing, (y) release Licensee from any prior outstanding obligation under this EULA, or (z) allow Licensee or Licensee’s transferee or assignee, collectively, to utilize more software features, users and/or modules than authorized under this EULA and Your order documentation. If You transfer the Licensed Software, You must simultaneously transfer possession of all associated media and documentation, and remove all Licensed Software from Your computers.
10. Links to Other Software. Use of the Licensed Software may provide links, integrations or “publishing” access to separate third-party software. BRIGHT PATTERN provides such links, integrations or “publishing” access as a benefit only and such access does not change the license rights of the separate third-party software. You must determine if Your use of the separate third-party software as accessed through the Licensed Software is in compliance with the respective third-party software end-user license agreement.
11. Links to Third-Party Sites. You may link to third-party sites through the use of the Licensed Software. BRIGHT PATTERN is providing such links to you as a convenience only. BRIGHT PATTERN does not generate or control the content of the third-party sites and is not responsible for and does not endorse the policies, practices or contents of any third-party sites.
12. Warranty/Remedy/Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE WARRANTY AND REMEDY SET FORTH BELOW ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES AND REMEDIES, ORAL OR WRITTEN, EXPRESSED OR IMPLIED. Except as provided for in this EULA, no BRIGHT PATTERN reseller, partner, dealer, agent or employee is authorized to modify or add to the following warranties and remedies.
BRIGHT PATTERN warrants that for a period of ninety (90) days following delivery of the Licensed Software (i) the media on which the Licensed Software is furnished shall be free from defects in materials and workmanship under normal use; and (ii) the Licensed Software will perform substantially in accordance with BRIGHT PATTERN’ user documentation accompanying the Licensed Software. BRIGHT PATTERN DOES NOT WARRANT THAT THE LICENSED SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE LICENSED SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL DEFECTS WILL BE CORRECTED. THIS LIMITED WARRANTY IS VOID IF FAILURE OF THE LICENSED SOFTWARE HAS RESULTED FROM ACCIDENT, ABUSE, MODIFICATION, OR MISAPPLICATION OF THE LICENSED SOFTWARE.
If You believe there is a defect in the Licensed Software such that it does not meet the Limited Warranty provided above, You must notify BRIGHT PATTERN in writing within the 90-day warranty period. BRIGHT PATTERN’ entire liability and Your exclusive remedy with regard to the Limited Warranty, shall be, at BRIGHT PATTERN’ sole discretion, either repair or replacement of the Licensed Software or a refund of the amount paid to BRIGHT PATTERN for the Licensed Software (provided in that case that You also return the Licensed Software). Any repaired or replacement Licensed Software shall be warranted for the remainder of the original warranty period.
To the maximum extent permitted by applicable law, except as provided above, BRIGHT PATTERN MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESSED OR IMPLIED WITH RESPECT TO THE LICENSED SOFTWARE, ITS QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
UNLESS BOTH EXPRESSLY REPRESENTED AND AGREED IN WRITING, THE LICENSED SOFTWARE IS NOT DESIGNED, OR INTENDED FOR USE IN ANY MEDICAL, LIFE SAVING OR LIFE SUSTAINING SYSTEMS, TRANSPORTATION SYSTEMS, NUCLEAR SYSTEMS, OR FOR ANY OTHER MISSION CRITICAL APPLICATION IN WHICH THE FAILURE OF THE LICENSED SOFTWARE COULD CREATE A SITUATION WHERE SUBSTANTIAL PROPERTY DAMAGE OR PERSONAL INJURY OR DEATH MAY OCCUR. BRIGHT PATTERN AND ANY Third-Party Owners RECOMMEND AGAINST, AND DISCLAIM ANY LIABILITY FOR, USE OF THE LICENSED SOFTWARE IN ANY SUCH APPLICATION.
You understand and acknowledge that BRIGHT PATTERN will not be liable for network-related problems attributable to the operation of the Licensed Software and that network configuration changes may affect the system’s performance.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR LIABILITY ARISING UNDER THE INDEMNIFICATION PROVIDED BELOW, BRIGHT PATTERN’ ENTIRE LIABILITY UNDER THIS EULA SHALL BE LIMITED TO THE AMOUNT PAID BY YOU TO BRIGHT PATTERN FOR THE LICENSED SOFTWARE.
IN NO EVENT WILL BRIGHT PATTERN BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE LICENSED SOFTWARE, even if advised of the possibility of such damages. In particular, and without limitation, BRIGHT PATTERN shall have no liability for any data stored or processed with the Licensed Software, including the costs of recovering such data.
13. Indemnification. BRIGHT PATTERN will defend, indemnify and hold Licensee harmless from any third party claim that the Licensed Software infringes any copyright, trademark or trade secret owned or controlled by the third party; provided, however, that (i) BRIGHT PATTERN shall be notified promptly in writing by Licensee of any such claim; (ii) BRIGHT PATTERN shall have sole control of the defense of any action on such claim and all negotiations for its settlement or compromise; (iii) Licensee shall cooperate with BRIGHT PATTERN, at BRIGHT PATTERN’ expense, in a reasonable way to facilitate the settlement or defense of such claim; (iv) such claim does not arise from Licensee’s modifications not authorized by BRIGHT PATTERN; and (v) should the Licensed Software become, or in BRIGHT PATTERN’ opinion likely to become, subject to such claim of infringement, then Licensee shall permit BRIGHT PATTERN, at BRIGHT PATTERN’ option and expense, either (a) to procure for Licensee the right to continue using the Licensed Software, or (b) to replace or modify the Licensed Software so that it becomes noninfringing and performs in a substantially similar manner to the original product, or (c) upon failure of (a) or (b), despite the reasonable efforts of BRIGHT PATTERN, to terminate this EULA and return the license fee paid by Licensee for the Licensed Software pro-rated over a four (4) year life span. THE FOREGOING INDEMNIFICATION IS LICENSEE’S SOLE AND EXCLUSIVE REMEDY AND BRIGHT PATTERN’ SOLE AND EXCLUSIVE OBLIGATION WITH RESPECT TO THE INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
14. Maintenance and Support. BRIGHT PATTERN provides maintenance and/or technical support (including upgrades and enhancements) for the Licensed Software only through separate agreements. Please contact BRIGHT PATTERN or the place from which You obtained the Licensed Software if You wish to obtain maintenance and/or technical support through the execution of such an agreement.
15. Compliance; Export Control; Privacy. You must comply with all applicable laws and regulations in Your use of the Licensed Software. You may not export, ship, transmit, or re-export the Licensed Software in violation of any applicable law or regulation, including, without limitation, the Export Administration Regulations issued by the United States Department of Commerce, or any such similar law or regulation issued by such other governmental entity which may have jurisdiction over such export. Further, You agree to abide by all applicable data protection, SPAM, privacy, communication and similar rules, directives and other laws in Your use of the Licensed Software.
16. United States Government Restricted Rights. THIS SECTION APPLIES ONLY TO LICENSING OR USE BY THE FEDERAL GOVERNMENT OF THE UNITED STATES. The Licensed Software is provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the federal government is subject to restricted rights as set forth in subparagraph (c) of The Rights in Technical Data and Computer Software clause at 252.227-7014 for DOD contracts and at FAR (48 CFR 52.227-19) for civilian agency contracts or other comparable agency clauses.
17. Termination. Your right to use the Licensed Software continues until this EULA is terminated. You may terminate this EULA at any time by destroying all of Your copies of the Licensed Software. This EULA will automatically terminate if You fail to comply with the material terms of this EULA. Your right to use the Licensed Software may also be limited by another agreement to which You are subject, and such other agreement may cause an earlier termination of the rights granted under this EULA (for example, in the case the Licensed Software is provided under a separate agreement on a time limited or evaluation basis). Upon any termination, You agree to remove all Licensed Software from Your computers, destroy all copies of the Licensed Software, and, upon request from BRIGHT PATTERN, certify in writing Your compliance herewith.
18. Severability. If any of the terms, or portions thereof, of this EULA are invalid or unenforceable under any applicable statute or rule of law, the court shall reform the contract to include an enforceable term as close to the intent of the original term as possible; all other terms shall remain unchanged.
19. Whole Agreement. This EULA and any applicable BRIGHT PATTERN order form or maintenance and support agreement or like document constitutes the entire agreement between You and BRIGHT PATTERN relating to the license rights for the Licensed Software, and any additions to, or modifications of, this EULA shall be binding upon the parties only if the same shall be in writing and duly executed by You and by a duly authorized officer of BRIGHT PATTERN. THE TERMS AND CONDITIONS OF ANY CORRESPONDING PURCHASE ORDER OR OTHER ORDER CONFIRMATION FORM RELATING TO THE LICENSED SOFTWARE ARE ONLY BINDING ON BRIGHT PATTERN IF SUCH TERMS AND CONDITIONS ARE AGREED TO IN WRITING IN ACCORDANCE WITH THE PRIOR SENTENCE AND IN A DOCUMENT OTHER THAN THE PURCHASE ORDER OR OTHER ORDER CONFIRMATION FORM.
20. Waiver. The waiver or failure of either party to exercise in any respect any right provided for in this EULA shall not be deemed a waiver of any further or future right under this EULA.
21. Assignability. This EULA shall inure to the benefit of, and is freely assignable to, BRIGHT PATTERN’s successors and assignees of rights in the Licensed Software.
22. Resellers. If Licensee acquired the Licensed Software through a Reseller, Licensee acknowledges that (i) payment and delivery terms for the Licensed Software must be established separately and independently between the Licensee and the Reseller; (ii) this EULA constitutes the entire agreement between the Licensee and BRIGHT PATTERN regarding the license rights for the Licensed Software as described above and is controlling; (iii) the terms and conditions of any purchase order or any other agreement between the Licensee and the Reseller are not binding on BRIGHT PATTERN; (iv) the Reseller is not BRIGHT PATTERN’ agent and is not authorized to alter, amend or modify the terms of this EULA or to otherwise grant any license or other rights relating in any way to the Licensed Software; and (v) Licensee’s nonpayment of any amount due to a Reseller or any other relevant third party relating to its licensed rights under this EULA shall constitute a basis for BRIGHT PATTERN’ termination of this EULA. Licensee further acknowledges that BRIGHT PATTERN makes no representation or warranty with regard to any services provided by any Reseller, or any actions or failures to act by any Reseller.
If Reseller received the Licensed Software as Not-For-Resale (or ‘NFR’) software in connection with a BRIGHT PATTERN reseller or other channel program, then this Licensed Software may only be used by Reseller, Reseller’s right to use the Licensed Software shall be subject to the terms of such program and applicable reseller agreement, and will terminate upon Reseller’s termination from such program or such earlier time as set forth in applicable reseller agreement.
23. Contact. All questions concerning this EULA shall be directed to:
BRIGHT PATTERN, Inc
1111 Bayhill dr., Suite 275
line-height: 1.5;”>San Bruno, CA 94066, USA
line-height: 1.5;”>Phone: +1-650-529-4099
line-height: 1.5;”>Fax: +1-415-480-1782
24. Payments; Additional Licenses. Except where the Licensed Software is acquired through a Reseller (described above), the licenses granted herein are subject to and Licensee agrees to make payments to BRIGHT PATTERN no later than thirty (30) days from invoice, unless otherwise agreed to in writing by BRIGHT PATTERN. If You wish to expand the number of the seats, users, modules, technology foundation and/or any other BRIGHT PATTERN product, You may be able to license such items from BRIGHT PATTERN or a Reseller. You agree that the license of such additional items shall be under the same terms and conditions as contained in this EULA. You agree that the parties do not have to execute (whether electronically, by paper or other written form) another copy of this EULA or any other license agreement, or that the electronic signature process may be bypassed, with respect to any additional items licensed from BRIGHT PATTERN.