BY OPENING THE PACKAGE, INSTALLING, PRESSING "AGREE" OR "YES" OR USING THE PRODUCT, THE ENTITY OR INDIVIDUAL ENTERING INTO THIS AGREEMENT AGREES TO BE BOUND BY THE FOLLOWING TERMS. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT INSTALL OR USE THE PRODUCT, PROMPTLY RETURN THE PRODUCT TO SENTRY SOFTWARE OR YOUR SENTRY SOFTWARE RESELLER, AND IF YOU ACQUIRED THE LICENSE WITHIN 15 DAYS OF THE DATE OF YOUR ORDER CONTACT SENTRY SOFTWARE OR YOUR SENTRY SOFTWARE RESELLER FOR A REFUND OF LICENSE FEES PAID. IF YOU REJECT THIS AGREEMENT, YOU WILL NOT ACQUIRE ANY LICENSE TO USE THE PRODUCT.
This Agreement ("Agreement") is between the entity or individual entering into this Agreement ("Customer") and Sentry Software SAS, located at 4 place de la Défense, Maison de la Défense, 92974 LA DEFENSE Cedex, France. IF MORE THAN ONE LICENSE AGREEMENT COULD APPLY TO THE PRODUCT, THE FOLLOWING ORDER OF LICENSE AGREEMENT PRECEDENCE APPLIES: (1) THE WRITTEN MASTER END USER LICENSE AGREEMENT WITH SENTRY SOFTWARE, (2) WEB BASED LICENSE AGREEMENT WITH SENTRY SOFTWARE AND (3) SHRINK WRAP LICENSE AGREEMENT WITH SENTRY SOFTWARE PROVIDED WITH THE PRODUCT. In addition to the restrictions imposed under this Agreement, any other usage restrictions contained in the Product installation instructions or release notes shall apply to your use of the Product.
Territory: The country where Customer acquired the license.
1. DEFINITIONS. "Affiliate" is an entity that controls, is controlled by or shares common control with Sentry Software or Customer, with more than 50% ownership interest. "Licensed Capacity" is the amount of each Product licensed as established in the Order. For licenses based on the power of a computer, Licensee agrees to use Sentry Software's then current computer classification scheme, which is available at www.sentrysoftware.com."Order" is an agreed written or electronic document identifying the Products to be licensed, subject to the terms of this Agreement. "Product" is the object code of the Sentry Software and all accompanying documentation, including all items delivered by Sentry Software to Customer under Support. "Support" is the support services program as further specified in this Agreement.
2. LICENSE. Subject to the terms of this Agreement, Sentry Software grants Customer a non-exclusive, non-transferable, perpetual (unless a non-perpetual license is provided on an Order) license, as specified in the relevant Order, to exercise the following rights to the Product up to the Licensed Capacity: (a) install on Customer's owned or leased hardware at a facility owned or controlled by Customer in the Territory; (b) operate solely for processing Customer's own data in Customer's business operations, and (c) make one copy of the Product for archival purposes only (collectively a "License"). If the Product design permits modification, then Customer may only use such modifications or new software programs for its internal purposes and otherwise consistent with the License. Affiliates may use and access the Products and Support under the terms of this Agreement, and Customer is responsible for it's Affiliates compliance with the terms of this Agreement.
3. RESTRICTIONS. Customer agrees to not: (a) disassemble, reverse engineer, decompile or otherwise attempt to derive any Product source code from object code, except to the extent expressly permitted by applicable law despite this limitation; (b) distribute or provide the Product to any third party or use it in a service bureau, outsourcing environment, or for the processing of third party data, or for rental, lease, or sublicense; (c) provide a third party with the results of any functional evaluation, or performance tests, without Sentry Software's prior written approval; (d) attempt to disable or circumvent any of the licensing mechanisms within the Product; or (e) violate any other usage restrictions contained in the Product installation instructions or release notes. Any third party software provided with a Product may be used only with that Product and only in accordance with Section 2 of this Agreement.
4. PRODUCT PERFORMANCE WARRANTY. Except for a trial license as described below, Sentry Software warrants that the Product will perform in substantial accordance with its documentation for a period of one year from the date of the Order. This warranty will not apply to any problems caused by software other than the Product, hardware not supplied by Sentry Software, or misuse of the Product. No warranty is provided for additional Licensed Capacity.
5. LIMITED REMEDIES. Sentry Software's entire liability, and Customer's exclusive remedy, for breach of the above warranty is limited to: Sentry Software's use of commercially reasonable efforts to remedy defects covered by the warranty or replacement of the defective Product within a reasonable period of time, or if Sentry Software cannot remedy or replace such defective Product within such time period, then Sentry Software will refund the amount paid by Customer for the License for that Product. Sentry Software's obligations in this section are conditioned upon Customer's providing Sentry Software written notice of the claim during the warranty period and full cooperation and access to the Product in resolving any claim.
6. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, THE PRODUCT IS PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND SENTRY SOFTWARE, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SENTRY SOFTWARE DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS CAN BE CORRECTED.
7. PAYMENTS AND DELIVERY. Customer will pay each License fee and/or Support fee upon receipt of invoice. Customer will pay, or reimburse, Sentry Software or when required by law the appropriate governmental agency for taxes of any kind, including sales, use, VAT, excise, customs duties, withholding, property, and other similar taxes (other than taxes based on Sentry Software's net income) imposed in connection with the License and/or the Support fees which are exclusive of these taxes. Customer may acquire such licenses via electronic distribution. The unpaid balance of each late payment shall automatically bear interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law. All Products are licensed FOB shipping point. The Products are accepted on the date of the Order.
8. PROPRIETARY RIGHTS AND CONFIDENTIALITY. Sentry Software, its Affiliates or licensors retain all right, title and interest to the Product and all related intellectual property and proprietary rights. The Product and any third party software provided with the Product are protected by applicable copyright, trade secret, industrial and other intellectual property laws. Customer may not remove any product identification, copyright, trademark or other notice from the Product. Sentry Software reserves any rights not expressly granted to Customer. "Confidential Information" means all proprietary or confidential information that is disclosed to the recipient ("Recipient") by the discloser ("Discloser"), and includes, among other things any and all information relating to products or services provided by a Discloser, its financial information, software code, flow charts, techniques, specifications, development and marketing plans, strategies, and forecasts; (ii) as to Sentry Software, and its licensors, the Product and any third party software provided with the Product; and (iii) the terms of this Agreement, including without limitation, Product pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient's possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; (d) is independently developed by or for Recipient; or (e) is required to be disclosed by applicable law or court order. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement.
9. DISCLAIMER OF DAMAGES. EXCEPT FOR VIOLATION OF PROPRIETARY RIGHTS AND CONFIDENTIALITY (SECTION 8), NEITHER PARTY, ITS AFFILIATES OR SENTRY SOFTWARE's LICENSORS ARE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT, SUPPORT, THE PRODUCT OR ANY THIRD PARTY SOFTWARE PROVIDED WITH THE PRODUCT (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW.
10. LIMITS ON LIABILITY. EXCEPT IN THE CASE OF INFRINGEMENT (SECTION 12), OR BREACH OF CONFIDENTIALITY (SECTION 8), SENTRY SOFTWARE'S TOTAL LIABILITY FOR DAMAGES OF ANY KIND IS LIMITED TO THE GREATER OF AMOUNT PAID OR PAYABLE BY CUSTOMER FOR THE LICENSE TO THE APPLICABLE PRODUCT GIVING RISE TO SUCH DAMAGES. THE LIMITATION OF LIABILITY IN THIS SECTION WILL NOT APPLY IF AND TO THE EXTENT THE DAMAGE WAS CAUSED BY WILLFUL INTENT OR GROSS NEGLIGENCE ON THE PART OF EITHER PARTY.
11. TRIAL LICENSE. For Products provided without an Order and without charge Customer may only operate the Product on a trial basis for 30 days or longer time period if agreed to by Sentry Software in writing, for purposes of evaluating whether Customer will acquire a license to the Product for a fee; and the Product is provided "AS IS" and without any warranty. Sentry Software may terminate a trial license for its convenience upon notice to Customer.12. INFRINGEMENT CLAIMS. If a third party asserts a claim against Customer asserting that Customer's use of a Product in accordance with this Agreement violates that third-party's patent, trade secret or copyright ("Infringement Claim"), then Sentry Software will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded against Customer, but only if: Customer promptly notifies Sentry Software of any Infringement Claim, Sentry Software retains sole control of the defense of any Infringement Claim and all negotiations for its settlement or compromise, and Customer provides all reasonable assistance requested by Sentry Software. Sentry Software's obligations above will not apply if the Infringement Claim is based on the use of Product in combination with products not supplied or approved by Sentry Software in writing or in the Product's user manuals, or (ii) the failure of Customer to use any updates to such Product within a reasonable time after such updates are made available to Customer. If Sentry Software believes a Product may violate a right, then Sentry Software will, at its expense: (a) modify the Product, or (b) procure the right to continue using the Product, and if (a) or (b) are not commercially reasonable, terminate Customer's right to use the Product and for any perpetual licenses issue a refund prorated over 48 months from the date of the Order. This section contains Customer's exclusive remedies and Sentry Software's sole liability for Infringement Claims.
13. TERMINATION. Sentry Software may: terminate an Order and the Licenses to the Products on that Order if Customer fails to pay any applicable fees due under that Order within 30 days after receipt of written notice from Sentry Software of non-payment; or (ii) terminate all Licenses and this Agreement in whole or in part and all Licenses if Customer commits any other material breach of this Agreement and fails to correct the breach within 30 days after Sentry Software notifies Customer in writing of the breach. Upon any termination of a License, Customer will immediately deinstall and stop using the relevant Product, and upon Sentry Software's request, Customer will immediately return such Product to Sentry Software, together with all related documentation and copies, or certify its destruction in writing.
14. AUDIT. If requested by Sentry Software not more than once a year, Customer agrees to deliver to Sentry Software periodic written reports, whether generated manually or electronically, specifying Customer's use of the Product, and/or and allow Sentry Software to perform an audit at Customer's facilities during normal business hours to ensure compliance with the terms of this Agreement. Customer agrees to cooperate during any audit and to provide reasonable access to information and systems. If an audit reveals that Customer has exceeded the Licensed Capacity for a Product, Customer agrees to pay the applicable fees for additional capacity. If the understated capacity exceeds 5% of the Licensed Capacity of the applicable Product, then Customer agrees to also pay Sentry Software's reasonable costs of conducting the audit.
15. EXPORT LAWS. Customer agrees not to import, export, re-export, or transfer, directly or indirectly, any part of the Product or any underlying information or technology except in full compliance with all United States, foreign and other applicable laws and regulations.
16. GOVERNING LAW. This Agreement is governed by the substantive laws in force, without regard to conflict of laws principles in France. The United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed in its entirety.
17. ARBITRATION. ANY DISPUTE BETWEEN YOU AND SENTRY SOFTWARE ARISING OUT OF THIS AGREEMENT OR THE BREACH OR ALLEGED BREACH, SHALL BE DETERMINED BY BINDING ARBITRATION CONDUCTED IN ENGLISH THE ARBITRATION SHALL BE HELD IN PARIS, FRANCE, UNDER THE CURRENT UNCITRAL ARBITRATION RULES. THE COSTS OF THE ARBITRATION SHALL BE BORNE EQUALLY PENDING THE ARBITRATOR'S AWARD. THE AWARD RENDERED SHALL BE FINAL AND BINDING UPON THE PARTIES AND SHALL NOT BE SUBJECT TO APPEAL TO ANY COURT, AND MAY BE ENFORCED IN ANY COURT OF COMPETENT JURISDICTION. NOTHING IN THIS AGREEMENT SHALL BE DEEMED AS PREVENTING EITHER PARTY FROM SEEKING INJUNCTIVE RELIEF FROM ANY COURT HAVING JURISDICTION OVER THE PARTIES AND THE SUBJECT MATTER OF THE DISPUTE AS NECESSARY TO PROTECT EITHER PARTY'S CONFIDENTIAL INFORMATION, OWNERSHIP, OR ANY OTHER PROPRIETARY RIGHTS. ALL ARBITRATION PROCEEDINGS SHALL BE CONDUCTED IN CONFIDENCE, AND THE PARTY PREVAILING IN ARBITRATION SHALL BE ENTITLED TO RECOVER ITS REASONABLE ATTORNEYS' FEES AND NECESSARY COSTS INCURRED RELATED THERETO FROM THE OTHER PARTY.
18. MISCELLANEOUS TERMS. Sentry Software is not liable for its failure to perform any obligation under this Agreement during any period in which performance is delayed by circumstances beyond Sentry Software's reasonable control. A waiver by a party of any breach of any term of this Agreement will not be construed as a waiver of any continuing or succeeding breach. Customer may not assign or transfer this Agreement or a License to a third party, whether by merger or otherwise. Should any term of this Agreement be invalid or unenforceable, the remaining terms will remain in effect. Sentry Software rejects all additional or conflicting terms of a Customer form purchasing document. The parties acknowledge they have read this Agreement and agree that it is the complete and exclusive statement of the agreement and supersedes any prior or contemporaneous negotiations or agreements, between the parties relating to the subject matter of this Agreement. This Agreement may not be modified or rescinded except in writing signed by both parties. The prevailing party in any litigation is entitled to recover it's attorneys fees and costs from the other party. To the extent Sentry Software provides third party products: if (a) such third party product is provided for use with a Product, it may be used only with that Product; (b) the documentation contains additional terms that pertain to such third party product, those additional terms govern the third party product in place of the terms of this Order and the Agreement; and (c) such third party product contains a third party agreement, Customer's use of and support for such third party product will be governed solely by that agreement.
19. ANNUAL SUPPORT. Sentry Software's support services program ("Support") includes the following: (a) Sentry Software is available to receive telephone calls 24/7, (b) for the most current releases and version of the Product, Sentry Software provides bug fixes, patches or workarounds in order to cause the Product to operate in substantial conformity with its then-current operating documentation, and (c) Sentry Software provides new releases or versions, to the extent they are furnished to all other enrolled Support customers without additional charge. Customer is automatically enrolled in Support on an annual basis for all Licensed Capacity of a specific Product, unless either party terminates Support on all Licensed Capacity of a specific Product upon at least 30 days written notice prior to the next Support anniversary date. If Customer requests termination of Support for a portion (not all) of the total Licensed Capacity of a Product, Customer may be required by Sentry Software to terminate its licenses to that portion of the Licensed Capacity. The annual fee for Support is based on Sentry Software's then-current Support price list. Sentry Software may change its Support terms, to be effective upon Customer's support anniversary date. Sentry Software reserves the right to discontinue Support Services for a Product where Sentry Software generally discontinues such services to all licensees of that Product If Customer terminates Support and then re-enrolls in Support, Sentry Software may charge Customer a reinstatement fee.