END USER SOFTWARE LICENSE AGREEMENT
THIS END USER SOFTWARE LICENSE AGREEMENT (this “Agreement”) constitutes a legal agreement between you (either an individual or a legal entity that will use the product and that you represent as an employee or authorized agent) (“Customer”) and Centrify Corporation, a Delaware corporation (“Centrify”), with respect to the software accompanying this Agreement (“Software”). By installing, copying, downloading or otherwise accessing the Software, Customer agrees to be bound by the terms of this Agreement. If Customer does not agree to the terms of this Agreement, Centrify is unwilling to grant Customer any rights to use the Software. In such event, Customer may not use the Software, and Customer should promptly destroy all copies of the Software.
1.1 Software License. Subject to the terms and conditions of this Agreement, Centrify grants to Customer a nonexclusive, nontransferable license, without the right to sublicense, to use, modify and create derivative works of the Software for Customer’s own internal business purposes.
1.2 License Restrictions. The rights granted in Section 2.1 are subject to the following restrictions: (i) Customer shall not reverse engineer, disassemble, decompile or otherwise attempt to derive the source code of the Software, except and only to the extent that it is expressly permitted by applicable law notwithstanding this limitation; (ii) Customer shall not sublicense or use the Software for commercial time-sharing, rental, outsourcing, application or managed service provision, or service bureau use, or to train persons, unless previously agreed to in writing by Centrify; (iii) Customer may not remove any patent, trademark, copyright, trade secret or other proprietary notices or labels on the Software, (iv) Customer shall not disclose the results of any performance, functional or other evaluation or benchmarking of the Software to any third party without the prior written permission of Centrify, and (v) Customer shall not distribute the Software.
1.3 Retention of Rights. Centrify reserves all rights not expressly granted Customer in this Agreement. Without limiting the generality of the foregoing, Customer acknowledges and agrees that Centrify retains all rights, title and interest in and to the Software. Customer acknowledges and agrees that it does not acquire any rights, express or implied, in or to the foregoing, except as specifically set forth in this Agreement. Any new features, functionality, corrections or enhancements for the Software suggested by Customer shall be free from any confidentiality restrictions, and may be incorporated into the Software by Centrify. Customer acknowledges that the Software incorporating any such new features, functionality, corrections or enhancements shall be the sole and exclusive property of Centrify.
1.4 Government Rights. The Software covered by this End User Software License Agreement are “Commercial Item(s),”as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable. If the Software is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end-users (a) only as Commercial Items and (b) with only those rights as are granted to all other end-users pursuant to the terms and conditions herein. Any unpublished-rights are reserved under the copyright laws of the United States.
1.5 Ownership. Customer expressly acknowledges that, as between Centrify and Customer, Centrify owns all worldwide right, title and interest in and to the Software, including all worldwide patent rights (including patent applications and disclosures), copyrights, trademarks, trade secrets, know-how and any other intellectual property rights therein. Customer will not delete or in any manner alter the copyright, trademark and other proprietary rights notices appearing on the Software.
2. NO WARRANTY. THE SOFTWARE IS PROVIDED “AS IS” AND CENTRIFY MAKES NO WARRANTY OF ANY KIND WITH REGARD TO THE SOFTWARE. CENTRIFY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE. No advice or information, whether oral or written, obtained from Centrify or elsewhere will create any warranty not expressly stated in this Agreement.
3. LIMITATION OF LIABILITY.
3.1 Total Liability. CENTRIFY’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY WILL BE LIMITED TO AND WILL NOT EXCEED US $100.
3.2 Exclusion of Damages. IN NO EVENT WILL CENTRIFY BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) OR FOR the cost of procuring substitute products OR SERVICES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE SOFTWARE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT CENTRIFY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
4.1 Termination by Customer. Customer may terminate this Agreement at any time by destroying or returning to Centrify all copies of the Software in its possession and control, and providing to Centrify a written statement signed by an authorized representative of Customer notifying Centrify that Customer is terminating the Agreement and certifying such destruction or return.
4.2 Termination by Centrify. Upon thirty (30) days’ notice, Centrify may terminate this Agreement (and Customer’s license rights) upon notice in the event that Customer breaches any provision of this Agreement and has not cured the breach during such notice period.
4.3 Survival. The rights and obligations of the parties contained in Sections 1.2, 1.5, 2, 3, 4 and 5 will survive the expiration or termination of this Agreement.
5.1 Assignment. Customer will have no right to assign this Agreement, in whole or in part, by operation of law or otherwise, without Centrify’s prior written consent. Any attempt to assign this Agreement, without such consent, will be null and of no effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party's successors and permitted assigns.
5.2 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California excluding that body of laws known as conflicts of law. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the Northern District of California and the parties hereby irrevocably consent to the personal jurisdiction and venue therein.
5.3 Nonexclusive Remedy. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
5.4 Severability. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect.
5.5 Waiver. The failure by either party to enforce any provision of this Agreement will not cons6itute a waiver of future enforcement of that or any other provision.
5.6 Relationship of Parties. Nothing in this Agreement shall be construed to create a partnership, joint venture, employment or agency relationship between the parties.
5.7 Export Control. Customer agrees to comply fully with all applicable export laws and regulations of the United States and other jurisdictions to ensure that neither the Software, nor any direct product thereof are exported or re‑exported in violation of such laws, or used for any purposes prohibited by such laws.
5.8 Entire Agreement. This Agreement constitutes the complete and exclusive understanding and agreement between the parties regarding its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, relating to its subject matter. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of both parties.
Last modified: August 26, 2016