END-USER LICENSE AGREEMENT -- InstallShield

FLEXERA SOFTWARE
END-USER LICENSE AGREEMENT
InstallShield®
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 (in either case the “Licensee”), and Flexera
Software for the Software.
As used herein, for users in Japan, “Flexera Software” means Flexera Software GK, a Godo Kaisha organized under
the laws of Japan; for users in Europe, Middle East, or Africa, “Flexera Software” means Flexera Software Limited,
a private company limited by shares and incorporated in England and Wales with company number 6524874; for
users in Australia and New Zealand, “Flexera Software” means Flexera Software Pty Ltd. and for users outside of
the countries listed above, “Flexera Software” means Flexera Software LLC.
By clicking on the “I ACCEPT” button, by opening the package that contains the Software, or by copying,
downloading, accessing or otherwise using the Software, Licensee agree to be bound by the terms of this Agreement
and Licensee represent that Licensee are authorized to enter into this Agreement on behalf of Licensee’s corporate
entity (if applicable). If Licensee does not wish to be bound by the terms of this Agreement, click the “I DO NOT
ACCEPT” button, and/or do not install, access or use the Software. An original purchaser who has not accepted the
terms of this Agreement may return the Software to the place of purchase within 30 days of the date of purchase for
a full refund.
DEFINITIONS
“Contractor” means any third party employed by Licensee to perform services on behalf of Licensee.
“Documentation” means the technical specification documentation generally made available by Flexera Software to
its licensees with regard to the Software.
“License Level” means the quantitative limitations and unit of measure applicable to the license purchased by
Licensee as specified on the applicable invoice.
“Software” means the object code form of the InstallShield software products, as further identified on an invoice.
Such products may include InstallShield Express, InstallShield Professional, InstallShield Premier, InstallShield
Limited Edition for Visual Studio, Standalone Build, InstallShield Collaboration, Virtualization Pack, and MSI
Tools
“Upgrades” means maintenance releases, additions, modifications, and new versions of the Software incorporating
such additions and modifications which are either (i) made available to Licensee as part of Support and Maintenance
without additional charge (except for Support and Maintenance Fees) or (ii) otherwise provided by Flexera
Software. Upgrades provided as a part of Support and Maintenance do not include maintenance releases, additions,
or modifications that Flexera Software considers to be a separate product or for which Flexera Software charges all
of its customers extra or separately.
I.
EVALUATION SOFTWARE
The use of the Evaluation Software will be governed by the terms set forth in this Article I, in addition to the
General Terms set forth in Article IV. If Licensee has received the Software for purposes of evaluation,
regardless of how labeled, the use of the Software is limited to a specified period of time, as detailed in the email
accompanying the download instructions (the “Evaluation Period).
1.
Grant of License. Subject to all of the terms and conditions of this Agreement and only during the Evaluation
Period, Flexera Software grants Licensee a limited, internal use, non-exclusive, non-transferable license to use
the Software solely to evaluate its suitability for Licensee’s internal business requirements at Licensee’s site(s)
only. Without limiting the foregoing, Licensee may not use the Software during the Evaluation Period to create
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publicly distributed computer software or for any other purpose. This license may be terminated by Flexera
Software at any time upon notice to Licensee and will automatically terminate, without notice, upon the first to
occur of the following: (a) the completion of Licensee’s evaluation of the Software or (b) the expiration of the
Evaluation Period.
2.
Limited Use Software. Portions of the full-use version of the Software may be withheld or unusable. Full use
of the Software may be restricted by technological protections.
3.
Disclaimer of Warranty. THE SOFTWARE IS PROVIDED ONLY FOR EVALUATION PURPOSES ON
AN "AS IS" BASIS. NEITHER FLEXERA SOFTWARE NOR ITS SUPPLIERS MAKE ANY OTHER
WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT
LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR
PURPOSE OR NONINFRINGEMENT. LICENSEE MAY HAVE OTHER STATUTORY RIGHTS.
HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY
REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE LIMITED WARRANTY
PERIOD.
4.
Limitation of Liability. IN NO EVENT WILL FLEXERA SOFTWARE BE LIABLE FOR ANY
DAMAGES, INCLUDING LOST PROFITS OR DATA, OR OTHER INCIDENTAL OR
CONSEQUENTIAL DAMAGES, ARISING OUT OF THE USE OR INABILITY TO USE THE
SOFTWARE OR ANY DATA SUPPLIED THEREWITH, EVEN IF FLEXERA SOFTWARE HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY
OTHER PARTY. IN NO CASE WILL FLEXERA SOFTWARE’S LIABILITY FOR ANY DAMAGES
HEREUNDER EXCEED FIFTY DOLLARS (US $50).
II.
LIMITED EDITION SOFTWARE FOR VISUAL STUDIO
The use of InstallShield Limited Edition for Visual Studio will be governed by the terms set forth in this Article
II, in addition to the General Terms set forth in Article IV. Each individual user may only register for a single
instance of the Limited Edition Software.
1.
Grant of License. InstallShield Limited Edition for Visual Studio is a functionally limited version of the
InstallShield software and is intended specifically for use with Visual Studio. Subject to all of the terms and
conditions of this Agreement, Flexera Software grants Licensee a limited, internal use, non-exclusive, nontransferable license to use the Software solely for Licensee’s internal business requirements at Licensee’s site(s)
only. Flexera Software grants Licensee the right to install and use the software on a single computer to be used
exclusively with Visual Studio and the right to install and use up to two (2) additional instances for use within a
Team Foundation Server environment. For the purposes of this Section, Software shall also include any
Documentation of the Software product provided to Licensee under this Agreement.
2.
Disclaimer of Warranty. THE SOFTWARE IS PROVIDED ON AN "AS IS" BASIS. NEITHER
FLEXERA SOFTWARE NOR ITS SUPPLIERS MAKE ANY OTHER WARRANTIES, EXPRESS OR
IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES
OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR
NONINFRINGEMENT. LICENSEE MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO
THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED
WARRANTIES, IF ANY, SHALL BE LIMITED TO THE LIMITED WARRANTY PERIOD.
3.
Limitation of Liability. IN NO EVENT WILL FLEXERA SOFTWARE BE LIABLE FOR ANY
DAMAGES, INCLUDING LOST PROFITS OR DATA, OR OTHER INCIDENTAL OR
CONSEQUENTIAL DAMAGES, ARISING OUT OF THE USE OR INABILITY TO USE THE
SOFTWARE OR ANY DATA SUPPLIED THEREWITH, EVEN IF FLEXERA SOFTWARE HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY
OTHER PARTY. IN NO CASE WILL FLEXERA SOFTWARE’S LIABILITY FOR ANY DAMAGES
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HEREUNDER EXCEED FIFTY DOLLARS (US $50).
III.
ALL OTHER EDITIONS OF THE SOFTWARE
The use of all other editions of the Software will be governed by the terms set forth in this Article III, in addition
to the General Terms set forth in Article IV.
1.
License.
a.
Grant of License. Subject to all of the terms and conditions of this Agreement and upon Licensee’s
payment of the fees shown on the invoice and acceptance of this Agreement, Flexera Software grants
Licensee a non-transferable, non-sublicensable, non-exclusive license to use Software for internal purposes
at Licensee’s site(s) only, but only in accordance with (a) the Documentation, (b) this Agreement and (c)
the License Level. For the purposes of this Section, Software shall also include any Documentation and
any Upgrades provided to Licensee under this Agreement.
b.
License Types. Licensee may purchase either a node-locked or concurrent license.
i.
Node-Locked Licenses. If Licensee has licensed Software under the node-locked model,
Licensee’s license grant is as follows. Licensee may install and use one instance of the Software
on a single computer either physically installed or on a virtual image on that computer only at
Licensee’s site(s) for Licensee’s internal business purposes only in accordance with the License
Level. A node-locked license is limited to use by a single individual on a single computer or
virtual image; Licensee may not install the Software on a shared computer. Copying a virtual
image for the purposes of using the image either simultaneously or as a replacement on another
machine is strictly prohibited.
ii.
Concurrent Licenses. If Licensee has licensed under the concurrent licensing model, Licensee
may install the Software on any machine at Licensee’s site(s) for Licensee’s internal business
purposes only in accordance with the License Level. All machines using the Software must have
the ability to communicate with a license server to be authorized to use the Software. The
InstallShield Integrated Development Environment shall not be used in automated build processes
on a separate machine.
c.
Installation and Copies. Licensee may install on Licensee's computers for use only by Licensee's employees
and Contractors as many instances of the Software as is designated in the applicable invoice. Licensee may
not make copies of the Software unless otherwise set forth in an applicable invoice. Notwithstanding the
foregoing, Licensee may make a copy of the Software for back-up purposes.
d.
Use by Contractors. Subject to the terms and conditions of this Agreement, Licensee’s Contractors may use
the licenses, provided that (a) such use is only for Licensee’s benefit, (b) Licensee agrees to remain
responsible for each such Contractor’s compliance with the terms and conditions of this Agreement and (c)
upon request Licensee will identify each such Contractor to Flexera Software. Use of the Software by the
Contractors and Licensee in the aggregate must be within the License Level set forth in the applicable
invoice.
e.
License Restrictions. Licensee shall not (and shall not allow any third party to):
i.
use or apply the Try and Die or Try and Buy functionality for the benefit of any software products
which are not owned by Licensee;
ii.
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 Flexera
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Software);
iii.
distribute (except as expressly permitted herein), sell, sublicense, rent, lease or use the Software
(or any portion thereof) for time sharing, service bureau, hosting, service provider or like
purposes;
iv.
remove any product identification, proprietary, copyright or other notices contained in the
Software, including but not limited to any such notices contained in the physical and/or electronic
media or Documentation, in the Setup Wizard dialog 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;
v.
modify any part of the Software, create a derivative work of any part of the Software, or
incorporate the Software into or with other software, except to the extent outlined in the
Documentation or expressly authorized in writing by Flexera Software; or
vi.
publicly disseminate performance information or analysis (including, without limitation,
benchmarks) from any source relating to the Software.
2.
Upgrades. Upgrades, if provided to Licensee, may be licensed to Licensee by Flexera Software with additional
or different terms and conditions. Upgrades may be used only by the Licensee of the original version of the
Software that is being upgraded. After installation of an Upgrade, Licensee may continue to use the prior
version(s) of the Software in accordance with the terms and conditions applicable to such version, provided that
(i) the prior version(s) may only be used by the Licensee of the Upgrade; (ii) Licensee acknowledges that any
obligation Flexera Software may have to support the prior version(s) may be ended upon the availability of the
Upgrade.
3.
Ownership. Notwithstanding anything to the contrary contained herein, except for the limited license rights
expressly provided herein, Flexera Software 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 (including the Documentation) and all copies, modifications to, and derivative
works based upon, the Software. Licensee 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 Licensee under this Agreement or otherwise.
4.
Payment Terms/Shipments. For users in Japan, all fees are in non-refundable Japanese Yen. For users in
Europe, Middle East or Africa, all fees are in the currency outlined in the quote/invoice and are non-refundable.
For Licensees in New Zealand or Australia, all fees are in non-refundable Australian Dollars. For users in any
region not outlined, all fees are in non-refundable US Dollars. Fees are due within thirty (30) days of the date
of the invoice. Licensee shall be responsible for all taxes, withholdings, duties and levies arising from the order
(excluding taxes based on the net income of Flexera Software). Any late payments shall be subject to a service
charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.
All Software and Documentation shall be delivered by electronic means unless otherwise specified on the
applicable invoice. All shipments of any media will be FOB Origin.
5.
Taxes. Fees do not include taxes. If Flexera Software is required to pay any sales, use, GST, VAT, or other
taxes in connection with Licensee’s order, other than taxes based on Flexera Software’s income, such taxes will
be billed to and paid by Licensee. Licensee will make all payments of fees to Flexera Software free and clear of,
and without reduction for, any withholding taxes; any such taxes imposed on payments of fees to Flexera
Software will be Licensee’s sole responsibility and consequently the amount of such fees will be increased such
that the net fee received by Flexera Software will be the same as if such withholding taxes were not imposed,
and Licensee will provide Flexera Software with official receipts issued by the appropriate taxing authority, or
such other evidence as the Flexera Software may reasonably request, to establish that such taxes have been paid.
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6.
7.
Support and Maintenance.
a.
Support and Maintenance. Flexera Software shall provide the level of support and maintenance services
(“Support and Maintenance”) set forth on the applicable invoice, if any, during such period as Licensee
has paid the applicable fee. Support and Maintenance will be provided in accordance with Flexera
Software’s then-current Support and Maintenance terms.
b.
Supported Versions. Support and Maintenance is available in accordance with Flexera Software’s Life
Cycle and End of Life Policy, which may be found at http://www.flexerasoftware.com/support/eol/end-oflife-policy.htm.
c.
Exclusions. Flexera Software will have no Support and Maintenance obligation to Licensee: (a) at the end
of any annual Support and Maintenance period unless Licensee elects to obtain additional Support and
Maintenance by paying an annual Support and Maintenance renewal fee; (b) where Licensee is using a
version of the Software that is not the then-current or previous major release or an otherwise unsupported
version in accordance with Flexera Software’s End of Life policy; (c) where the Software has been
modified by Licensee or any third party or by Flexera Software at Licensee’s request; or (d) for any
evaluation, beta or other Software provided at no charge.
d.
Renewals. In the event Licensee elects not to obtain or renew Support and Maintenance, Licensee may
retain the Software and Documentation but will have no further right to Support and Maintenance for the
Software. If Licensee wishes to reinstate lapsed Support and Maintenance, Licensee may do so only within
ninety (90) days from expiration of the Support and Maintenance term and by paying Flexera Software an
amount equal to the then-applicable annual fee plus one-hundred fifty percent (150%) of the fees that
would have been due had Licensee remained enrolled during the lapse period. Support and Maintenance
may be renewed for the first annual renewal period for the same amount paid in the first year.
Warranty.
a.
Limited Software Performance Warranty. Flexera Software warrants to Licensee that for a period of ninety
(90) days from initial delivery of the Software to Licensee (the “Warranty Period”) the Software shall
operate in substantial conformity with the Documentation. Flexera Software does not warrant that
Licensee’s use of the Software will be uninterrupted or error-free or that any security mechanisms
implemented by the Software will not have inherent limitations. Flexera Software’s sole liability (and
Licensee’s exclusive remedy) for any breach of this warranty shall be, in Flexera Software’s sole
discretion, to use commercially reasonable efforts to provide Licensee with an error-correction or workaround which corrects the reported non-conformity, to replace the non-conforming Software with
conforming Software, or if Flexera Software determines such remedies to be impracticable within a
reasonable period of time, to terminate the Agreement and refund the license fee paid for the Software.
Flexera Software shall have no obligation with respect to a warranty claim unless notified of such claim
within the Warranty Period.
b.
Exclusions. The limited warranties set forth in this Section 7 shall not apply: (a) if the Software is used
with hardware or software not specified in the Documentation; (b) if any modifications are made to the
Software by Licensee or any third party or by Flexera Software at Licensee’s request; (c) to defects in the
Software due to accident, abuse or improper use by Licensee; or (d) to items provided on a no charge or
evaluation basis.
c.
Disclaimer. THE WARRANTIES IN THIS SECTION 7 ARE LIMITED WARRANTIES AND
EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 7, THE SOFTWARE IS PROVIDED
“AS IS”. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 7, NEITHER FLEXERA
SOFTWARE NOR ITS SUPPLIERS MAKE ANY OTHER WARRANTIES, EXPRESS OR
IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO
WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE
OR NONINFRINGEMENT. LICENSEE MAY HAVE OTHER STATUTORY RIGHTS.
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HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF
STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE LIMITED
WARRANTY PERIOD.
8.
9.
Limitation of Liability.
a.
NEITHER FLEXERA SOFTWARE NOR ITS SUPPLIERS, IF ANY, SHALL BE LIABLE FOR
INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR FOR DAMAGE
TO SYSTEMS OR DATA, EVEN IF FLEXERA SOFTWARE HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. FLEXERA SOFTWARE'S LIABILITY FOR ANY
DAMAGES HEREUNDER SHALL IN NO EVENT EXCEED THE AMOUNT OF LICENSE FEES
THAT LICENSEE HAS PAID TO FLEXERA SOFTWARE.
b.
FOR USERS WITHIN EUROPE, THE MIDDLE EAST OR AFRICA, 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.
c.
FLEXERA SOFTWARE DOES NOT LIMIT OR EXCLUDE ITS LIABILITY FOR DEATH OR
PERSONAL INJURY CAUSED BY ITS NEGLIGENCE.
Termination. Licensee’s license may be terminated by Flexera Software if (a) Licensee fails to make payment
and/or (b) Licensee fail to comply with the terms of this Agreement within ten (10) days after receipt of written
notice of such failure. In the event of termination, Licensee must cease using the Software, destroy all copies of
the Software (including copies in storage media), if applicable, and certify such destruction to Flexera Software.
This requirement applies to all copies in any form, partial or complete. Upon the effective date of any
termination, Licensee relinquishes all rights granted under this Agreement.
10. Verification/Audits. On Flexera Software’s reasonable request, Licensee will furnish Flexera Software with a
signed statement confirming whether the Software is being used by Licensee in accordance with this
Agreement. Further, during the term of this Agreement and for a period of one (1) year thereafter, with prior
reasonable notice of at least five (5) days, Flexera Software may audit Licensee for the purpose of verifying the
information provided by Licensee under this Agreement, and for the purpose of verifying that Licensee is
conforming to the terms of this Agreement. Any such audit shall be conducted during regular business hours at
Licensee’s facilities and shall not unreasonably interfere with Licensee’s business activities. If an audit reveals
an underpayment or that the Licensee’s usage is greater than the License Level, then the Licensee shall
immediately pay the difference in License fees and, if applicable, Support and Maintenance fees to bring the
License Level into compliance. If an audit reveals that (i) Licensee has intentionally misrepresented its usage of
the Software, (ii) Licensee materially breached this Agreement, or (iii) the Usage Level is more than 5% over
the License Level, then Licensee shall pay Flexera Software’s reasonable costs of conducting the audit in
addition to any fees due to Licensee’s misrepresentation or material breach. Audits shall be conducted no more
than once annually.
11. Use of Try and Die Functionality. If Licensee has licensed the Premier edition of the Software, Licensee may
internally access and use the functionality labeled “Try and Die” solely for the purposes of applying the Try
and Die functionality processes and/or restrictions to Licensee’s products and distributing such products to
Licensee’s end users for their trial purposes for a pre-determined period of time. Notwithstanding the
foregoing, Licensee agrees that the total revenue from Licensee’s products utilizing the Try and Die
functionality will not exceed US$10,000,000. Each product that is managed by a unique product version
key/packaging license is considered to be a separate product hereunder. A product version key/packaging
license identifies a protected trial product and allows the end user to unprotect, unpack and use a protected
product.
12. Activation Capabilities. For existing users of the InstallShield Activation Service, should Licensee elect to
access and use the InstallShield Activation Service (which can only be used in conjunction with the Try and
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Buy
functionality
of
the
product),
the
terms
and
conditions
http://www.installshield.com/products/installshield/activationservice/info/agreement.asp
will
apply
Licensee’s use of the service and will supplement Licensee’s use of the Software hereunder.
at
to
13. Dual-Media Software. Licensee may receive the Software in more than one medium (electronic and on a DVD,
for example). Receipt of the Software in more than a single manner (electronic or on a DVD, for example) does
not expand the license rights granted to Licensee hereunder. Licensee’s use of the Software is limited to the
number of licenses (instances) that Licensee has acquired overall, regardless of number or type of media on
which it has been provided.
IV.
GENERAL TERMS
The terms set forth in this Article IV shall apply to all Software licensed under this Agreement.
1.
Assignment/Transfer of Software. Licensee may not, by operation of law or otherwise, transfer any license
rights or other interests in Evaluation Software, Limited Edition Software, or Software labeled “Not for Resale”
or “NFR.” Licensee may transfer a license granted hereunder, on a permanent basis, provided (i) that such
transfer is the result of a merger, acquisition or other corporate action (such as a divestiture), (ii) Licensee
permanently and wholly transfers all Licensee’s rights and obligations under this Agreement; (iii) Licensee
retains no instances or copies (whole or partial); (iv) Licensee permanently and wholly transfers all of the
Software (including component parts, media, printed materials, upgrades, prior versions, and authenticity
certificates); and (v) the transferee agrees to abide by all the terms of this Agreement. Licensee may not
transfer this license or the Software directly or indirectly for any other reason without Flexera Software’s prior
written consent, which may be withheld for any reason. Transfers that are the result of employee turnover or
reassignment are allowed, provided that such transfers do not occur more frequently than annually.
2.
Usage Data. Licensee understand that Flexera Software may utilize technology which gathers information
about Licensee’s computer system, however, such data is used solely for the purpose of understanding machine
types and other system-oriented information and does not contain any personally identifiable information of
Licensee.
3.
Redistributable Files. The Software component parts may not be separated for use on more than one computer,
except as set forth in this Agreement. Licensee may copy the files specifically identified in the documentation
as “redistributables” and redistribute such files to Licensee’s end users of Licensee’s products, provided that:
(a) such products add primary and substantial functionality to the redistributables, (b) all copies of the
redistributables must be exact and unmodified; and (c) Licensee grants Licensee’s end users a limited, personal,
non-exclusive and non-transferable license to use the redistributables only to the extent required for the
permitted operation of Licensee’s products and not to distribute them further. Licensee will reproduce with the
redistributables all applicable trademarks and copyright notices that accompany the Software, but Licensee may
not use Flexera Software’s name, logos or trademarks to market Licensee’s products.
4.
Controlling Law. For users in Japan, this Agreement will be governed by the laws of Japan; for users in
Europe, Middle East, or Africa, this Agreement will be governed by the laws of England and Wales and
Licensee submit to the jurisdiction of the courts of England and Wales; for Licensees in New Zealand or
Australia this Agreement will be governed by the laws of the State of Victoria, Australia; for users outside the
countries listed above, this Agreement will be governed by the laws of California, USA, excluding conflicts of
law. This Agreement is not subject to the United Nations Convention on Contracts for the Sale of Goods.
5.
Survival. Sections I.3 (Disclaimer), I.4 (Limitation of Liability), II.2 (Disclaimer), II.3 (Limitation of Liability),
III.1.e (License Restrictions), III.3 (Ownership), III.4 (Payment and Delivery), III.7.c (Disclaimer), III.8
(Limitation Liability), III.9 (Termination), and all of this Article IV (General Terms), as well as any provision
that by the very nature of which should survive shall survive any termination or expiration of this Agreement.
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6.
Confidential Information. Each party agrees that all business and/or technical information that is received by a
party (“Receiving Party”) from the disclosing party (“Disclosing Party”) that a) is in written, recorded,
graphical or other tangible form and is marked "Confidential" or “Trade Secret” or similar designation; b) is in
oral form and identified by the Discloser as "Confidential" or “Trade Secret” or similar designation at the time
of disclosure, with subsequent confirmation in writing within thirty (30) days of such disclosure; or c) the nature
of which could reasonably be construed to be confidential shall be considered the confidential property of the
Disclosing Party (“Confidential Information”). Any software, documentation or technical information
provided by Flexera Software (or its agents), performance information relating to the Software, and the terms of
this Agreement shall be deemed Confidential Information of Flexera Software without any marking or further
designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or
disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to
information that: (a) was rightfully in its possession or known to it prior to receipt of the Confidential
Information; (b) is or has become public knowledge through no fault of the Receiving Party; (c) is rightfully
obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (d) is
independently developed by employees of the Receiving Party who had no access to such information; or (e) is
required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to
comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party
acknowledges that disclosure of Confidential Information would cause substantial harm for which damages
alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the
Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might
have at law.
7.
Company Name and Logo. Flexera Software may include Licensee’s company name and logo in a list of
Flexera Software customers and/or partners.
8.
Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be
unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement
shall otherwise remain in effect.
9.
Amendments; Waivers. No supplement, modification, or amendment of this Agreement shall be binding, unless
executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be
implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be
effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have
waived. No provision of any purchase order or other business form employed by Licensee will supersede the
terms and conditions of this Agreement, and any such document relating to this Agreement shall be for
administrative purposes only and shall have no legal effect.
10. Choice of Language. The original of this Agreement has been written in English. Licensee waives any rights it
may have under the law of its country to have this Agreement written in the language of that country.
11. Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of
partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party
will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s
prior written consent.
12. U.S. Government End-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
Agreement 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. Licensee shall flow-down this provision to any of its authorized
sublicensees (including but not limited to any Licensee Products, as applicable).
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13. Export Compliance. Licensee acknowledges that the Software is subject to export restrictions by the United
States government and import restrictions by certain foreign governments. Licensee 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: (a) into (or to a national or resident of) any embargoed or terroristsupporting country; (b) any end user who has been prohibited from participating in United States export
transactions by any federal agency of the United States government; (c) 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 (d) otherwise in violation of any export or import restrictions, laws or regulations of any
United States or foreign agency or authority. Licensee 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.
14. Third-Party Code. The Software may contain or be provided with components subject to the terms and
conditions of “open source” software licenses (“Open Source Software”). Open Source Software may be
identified in the Documentation, or Flexera Software shall provide a list of the Open Source Software for a
particular version of the Software to Licensee upon Licensee’s written request. To the extent required by the
license that accompanies the Open Source Software, the terms of such license will apply in lieu of the terms of
this Agreement with respect to such Open Source Software, including, without limitation, any provisions
governing access to source code, modification or reverse engineering.
15. Equal Opportunity. Flexera Software agrees that it does not and will not discriminate against any employee or
applicant for employment because of race, color, religion, age, sex, handicap, national origin, or sexual
orientation.
16. Ambiguities. Each party and its counsel have participated fully in the review and revision of this Agreement.
Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not
apply in interpreting this Agreement.
17. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the
parties and supersedes and cancels all previous written and oral agreements and communications relating to the
subject matter of this Agreement.
InstallShield EULA - May 2012.docx
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Flexera Software Confidential