- Agreement to EULA.
By executing this EULA or using the Software (as defined herein), Customer is consenting to be bound hereby. If Customer does not agree to be bound by this EULA, it may not download, install or use the Software.
- Definitions. As used in this EULA, the following capitalized terms shall have the following meanings:
a. “Software” shall mean solely the following FaalSoft-supplied software: (i) AnswerX Licensed software; (ii) the following software optionally available to customers of AnswerX Licensed subject to the execution of a Transaction Document therefor: (A) AnswerX AuthX and/or (B) AnswerX InformX; and (iii) all patches, error corrections, updates and revisions to the software described in 2(a)(i) and (ii) above. Certain FaalSoft Services may be enabled by AnswerX Licensed subject to execution and delivery of a Transaction Document therefor. Software, service and product descriptions, billing methodologies, usage requirements and similar terms applicable to thereto are located at www.faalsoft.com and incorporated herein.
b. “Transaction Document” shall mean any individual order form or purchase order for the license of Software that is executed by both an Approved Source and Customer or issued by Customer and accepted by the Approved Source in writing.
c. “User Documentation” shall mean the user manuals for the Software provided by FaalSoft in either electronic, online help files or hard copy format, including all updates and revisions thereto. The Software and the User Documentation are sometimes collectively referred to herein as the “Program.” User Documentation may be modified from time to time.
- License Grant.
Conditioned on compliance with the terms and conditions of this EULA and Customer’s Terms & Conditions, including payment of all license and other fees, FaalSoft grants to Customer, and Customer accepts, a non-exclusive, non-transferable, revocable license to use the Software and User Documentation, during the Term (as defined below). The Software may be used by Customer solely for its own internal business on a physical computing device or virtual machine environment provided or expressly qualified by FaalSoft for which the Software was designed, and subject to the number of Subscribers and other usage limitations as may be set forth or incorporated by reference in the applicable Transaction Document for such Software. Customer and FaalSoft intend and agree that the Software is being licensed not sold, and that the words “purchase”, “sold” or similar or derivative words are understood and agreed to mean “license” and that the word “Customer” or similar or derivative words is understood and agreed to mean “Licensee.” Human-readable(or other source code) for the Software will not be provided or disclosed to Customer. Customer agrees that Customer will not pledge, lease, rent, or share Customer’s rights under this EULA, and that Customer will not, without FaalSoft’s prior written consent, assign or transfer Customer's rights hereunder. Customer agrees that Customer may not decompile, disassemble, reverse engineer, modify, adapt, or otherwise translate the Software (in whole or in part) or permit a third party to do so and that Customer shall not make the Software available to any other third party, or create works derivative of the Software, without FaalSoft’s express written consent. All rights not expressly granted herein are hereby reserved to FaalSoft.
Customer may make one copy of the Software and the User Documentation for backup purposes. Any such copies of the Software or the User Documentation shall include Licensor’s copyright and other proprietary notices. Except as authorized under this paragraph, no copies of the Program or any portions thereof may be made by Customer or any person under Customer’s authority or control.
- Delivery; License Keys. Customer acknowledges that the Software uses a license key mechanism and that use of the Software requires authorized and valid license keys (“License Keys”) that must be installed by Customer.Customer agrees not to use unauthorized license keys or otherwise circumvent FaalSoft’s license key mechanisms for its Software and Services. FaalSoft will provide the License Keys upon the initial activation of the applicable Software or Service following entry into a valid Transaction Document therefor. Without limiting the warranties set forth in Section 8, the Software will be deemed accepted upon delivery of the License Keys to Customer. Unless otherwise mutually agreed in writing, Customer is responsible for installing the Software and License Keys in accordance with the User Documentation.
- Proprietary Rights and Third Party Software.
FaalSoft and its licensors retain all copyrights, trade secret rights, patents, trademarks, and any other proprietary rights covering or relating to the Software. Customer acknowledges that the Software is proprietary and confidential information belonging to FaalSoft and its licensors, and Customer will maintain the confidentiality thereof. This EULA does not convey to Customer any interest in or to the Software, but only a limited right of use revocable in accordance with the terms of this EULA. FaalSoft may distribute third party software programs with the Software that are not part of the Software and that Customer must install. These third party programs are subject to their own license terms. If Customer does not agree to abide by the applicable license terms for such third party software programs, then Customer must not install them. A list of the associated third party software programs that may be required or utilized by the Software can be found here or on the “About” pages of the Software, and Customer hereby agrees to properly install and abide by the terms and conditions thereof.
The license fees paid by Customer are paid in consideration of the license granted under this EULA. All license fees are non-refundable. FaalSoft will review on a quarterly basis the number of Customer’s Subscribers against the number of Subscribers of the relevant type (e.g., Active or All-In) purchased by Customer pursuant to a Transaction Document. In the event that Customer’s actual number of the applicable Subscribers during the most recently completed quarterly period exceeds the number of Subscribers purchased (such excess, the “Subscriber Overage”), FaalSoft shall be entitled to invoice Customer, and Customer hereby agrees to pay additional fees at the applicable rate set forth on the Transaction Document for such Subscriber Overage for the remainder of the Term. Without limiting the foregoing, FaalSoft reserves the right to audit Customer’s compliance with this EULA on a quarterly basis. In the event such audit discloses non-compliance with this EULA, Customer shall promptly pay to FaalSoft the appropriate fees, plus the reasonable cost of conducting the audit.
- Term: Termination
The initial term of this EULA will commence on the Billing Effective Date of the applicable Transaction Document and shall continue for the applicable length of term specified on the Transaction Document (“Initial Term”) unless otherwise terminated in accordance with this EULA or the Terms & Conditions. If the Transaction Document for the Software is for an annual fee, this EULA will automatically renew for successive periods of one (1) year (each a “Renewal Term”) unless a party notifies the other party of its intent not to renew at least sixty (60) days before the end of the Initial Term or applicable Renewal Term. The Initial Term and all Renewal Terms are collectively referred to as the “Term.” Either party may terminate this EULA if the other party breaches any material provision hereof and does not cure such breach within thirty (30) days after receiving written notice thereof. Upon such termination, any amounts owed to FaalSoft under this EULA and the applicable Transaction Document shall be immediately due and payable, all license rights granted in this EULA will immediately cease to exist, and Customer must promptly discontinue all use of the Software and return to FaalSoft or destroy all copies of Software, User Documentation and other confidential information of FaalSoft in Customer’s possession or control. Sections 1, 2, 5, 6, 7, 10, 11, 14, 15, 16, 17, 18, 19 and 20 together with any accrued payment obligations, will survive expiration or termination of this EULA for any reason. Termination of this EULA shall not prejudice FaalSoft’s rights to damages or any other available remedy.
- Limited Warranty.
Software Warranty: FaalSoft warrants that, with normal use and service, the Software shall materially conform to FaalSoft’s then-current published specifications as such published specifications exist at time of delivery of the specific most current release of such Software that is delivered to the Customer for a period of ninety (90) days after the date of delivery (the “Warranty Period”). During the Warranty Period, as Customer’s sole and exclusive remedy, FaalSoft will provide correction or workaround of reproducible identified problems, including patches, corrective Software releases or other means reasonably determined by FaalSoft to correct the particular Software’s failure to conform to the warranty, which means may include Customer being required to upgrade to a more current version of such Software, provided that the Customer has notified FaalSoft in writing of the nature of the non-conformity. This warranty shall not apply if any Software has been (a) modified or altered by anyone other than FaalSoft, (b) abused or misapplied, or (c) used in combination with hardware or software other than the software programs or products sold by FaalSoft or expressly qualified by FaalSoft for which the Software was designed. In no event does FaalSoft warrant that the use of Software will be error free or uninterrupted. FaalSoft’s sole obligation under the software warranty shall be to provide the remedies described above. This warranty does not apply to (a) Evaluation Software (as defined below) or any other Software licensed for beta, evaluation, testing or demonstration purposes or (b) any other FaalSoft product or service.
FaalSoft provides no warranty, guarantee or other agreement, whether express, implied, or statutory, in respect of any goods, equipment, hardware, cabling, materials, services, support, products or licensed software supplied by parties other than FaalSoft or its Affiliates, and bears no responsibility therefor or for services in respect thereof. Third party software provided in connection with the Software hereunder is not Software for the purposes of this EULA.
Warranty Claims: FaalSoft shall incur no liability under this warranty if Customer fails to provide FaalSoft with notice of the alleged defect during the applicable Warranty Period. FaalSoft shall incur no liability under this warranty if FaalSoft’s tests disclose that the alleged defect is due to causes not within FaalSoft’s reasonable control, including alteration or abuse of the software.
Updates and upgrades are not included as part of the warranty. Updates and upgrades are available solely to the extent that Customer has entered into a fully paid up Transaction Document covering maintenance and/or support services entitling Customer to such updates and upgrades.
- Evaluation Software License.
If the Software the Customer has received pursuant to this EULA is used for evaluation and demonstration (“Evaluation Software”), the license to the Evaluation Software is limited to use strictly by Customer’s employees and contractors solely for Customer’s internal, non-productive evaluation purposes and is further limited to a period not to exceed thirty (30) days from the date Customer acquires the Evaluation Software. Customer’s rights under this EULA will terminate immediately upon the earlier of (a) the expiration of the evaluation period, or (b) such time that the Customer purchases a license to a commercially released, non-evaluation version of the Software pursuant to a Transaction Document. FaalSoft reserves the right to terminate Customer’s license to Evaluation Software at any time in its sole discretion. Customer agrees to return or destroy its copy of Evaluation Software and User Documentation upon termination of this EULA for any reason. FaalSoft is licensing the Evaluation Software on an “as is” basis and disclaims any warranty or liability obligations of any kind with respect to Evaluation Software, whether express or implied, to Customer.
EXCEPT FOR THE EXPRESS WARRANTIES STATED IN SECTION 8, THE SOFTWARE IS PROVIDED “AS IS”, AND FAALSOFT DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTIES OF NON-INFRINGEMENT, TITLE OR SECURITY, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. FAALSOFT’S EXPRESS WARRANTIES WILL NOT BE ENLARGED, DIMINISHED OR AFFECTED BY, AND NO OBLIGATION OR LIABILITY WILL ARISE OUT OF, FAALSOFT RENDERING TECHNICAL OR OTHER ADVICE OR SERVICE IN CONNECTION WITH THE SOFTWARE. CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THAT IN EACH JURISDICTION IN WHICH ANY SUCH DISCLAIMER IS UNENFORCEABLE, THE DURATION OF ANY IMPLIED WARRANTY THAT IS NOT EFFECTIVELY DISCLAIMED WILL BE LIMITED TO THE WARRANTY PERIOD.
- Limitation of Liability.
TO THE FULLEST EXTENT PERMISSIBLE BY LAW, FAALSOFT’S LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THIS EULA, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT OF LICENSE FEES PAID OR PAYABLE BY CUSTOMER TO FAALSOFT UNDER THE APPLICABLE TRANSACTION DOCUMENT FOR THE PARTICULAR SOFTWARE FROM WHICH THE CLAIM ARISES DURING THE SIX MONTHS PRECEDING THE CLAIM. IN NO EVENT SHALL FAALSOFT BE LIABLE FOR ANY LOST DATA, LOST PROFITS, BUSINESS INTERRUPTION, REPLACEMENT SERVICES OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR INDIRECT DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY.
- Intellectual Property Indemnification.
a. FaalSoft shall defend, indemnify and hold Customer harmless from and against any claim made, or any suit or proceeding brought against Customer, but only to the extent it is based on an allegation that Software furnished hereunder directly infringes an issued patent or other intellectual property right under the laws of a country in which the Software is actually provided to Customer. If Software is held to infringe and the use enjoined, FaalSoft shall have the option, at its own expense, to procure for Customer the right to continue using the Software; or replace same with a non-infringing software; or modify such Software so that it becomes non-infringing. If FaalSoft is unable to provide one of the foregoing remedies, Customer may terminate the Transaction Document for the applicable Software without termination charge upon written notice to FaalSoft. FaalSoft shall have no liability for any infringement of patents, copyrights, or other intellectual property rights resulting from any Customer content or applications, use of the Software other than as specified in relevant FaalSoft documentation, the use or combination of the Software with any hardware, software, products, applications, data or other materials not specified or provided by FaalSoft, any use of any release of Software other than the most current release made available to Customer, Customer’s continuing allegedly infringing activities after being notified thereof, or to the extent the claims arise from products or services not supplied by FaalSoft. This 12 states Customer’s sole and exclusive remedy in the event that the Software infringes the intellectual property rights of any third party.
b. The Customer shall (i) promptly notify FaalSoft in writing of any claim or proceeding for which indemnity is claimed, and (ii) allow FaalSoft solely to control the defense of any claim, suit or proceeding. FaalSoft shall not enter into any settlement that imposes liability or obligations on the indemnified party without obtaining the indemnified party’s prior written consent.
- Use of Software in Connection with the FaalSoft Network.
When using the Software in connection with the FaalSoft Network (as defined in the AUP (defined below))
- Export Control; U.S. Government Customers.
Customer acknowledges the Software is subject to export controls under the laws and regulations of the United States and any other applicable countries’ laws and regulations. Customer will not export, re-export, distribute or supply the Software or the Program (including any part of the Software or Program or any direct product thereof), confidential information, or related technical data in contravention of the export control laws of any jurisdiction. If the Software is acquired under the terms of a Department of Defense or civilian agency contract, the Software is “commercial item” as that term is defined at 48 C.F.R. 2.101 (Oct. 1995), consisting of "commercial computer software" and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 of the Federal Acquisition Regulations and its successors and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995) of the DoD FAR Supplement and its successors. All U.S. Government end users acquire the Software with only those rights set forth in this EULA.
- Books and Records.
Customer will keep books and records in accordance with generally accepted accounting principles accurately showing all transactions and information relating to this EULA. Such books and records shall be preserved for at least five (5) years from the date of entry to which they pertain and be open to inspection by representatives and agents of FaalSoft at reasonable times upon reasonable notice. Customer hereby agrees that FaalSoft may provide a copy of this EULA and all information relating to this EULA to licensors of third-party software programs provided to Customer by FaalSoft for use with the Software.
- Governing Law; Venue.
This EULA and any and all claims relating to the Software shall be governed by the laws of the Commonwealth of Massachusetts, without regard to or application of its choice of law of law rules or principles. Disputes will be heard in the appropriate federal or state courts located in the Commonwealth of Massachusetts. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this EULA.
- No Liability of Suppliers and Licensors to FaalSoft.
Customer acknowledges that its rights under this EULA, in the nature of warranty or otherwise, are solely against FaalSoft. NO FAALSOFT SUPPLIER OR LICENSOR MAKES ANY WARRANTY, ASSUMES ANY LIABILITY, OR UNDERTAKES TO FURNISH TO CUSTOMER ANY SUPPORT OR INFORMATION CONCERNING THE FAALSOFT SOFTWARE OR PROGRAMS OR ANY PORTION THEREOF. Customer hereby releases all FaalSoft suppliers and licensors from any claims, damages or losses arising from the use of the Software or Program, regardless of the form of action.
- Severability and Waiver.
If any provision of this EULA is held illegal or unenforceable under applicable law, the remaining provisions of this EULA will remain valid and fully enforceable. No delay or failure to take action under these terms and conditions will constitute a waiver by FaalSoft unless expressly waived in writing by a duly authorized officer of FaalSoft.