Metalogix Software Applications Download License Agreement

Metalogix Software Applications Download License Agreement

METALOGIX INTERNATIONAL GMBH (“METALOGIX”) IS ONLY WILLING TO LICENSE THE METALOGIX SOFTWARE APPLICATIONS AND RELATED DOCUMENTATION (COLLECTIVELY, “SOFTWARE”) PURSUANT TO THE TERMS OF THIS DOWNLOAD LICENSE AGREEMENT (“AGREEMENT”).

BY CLICKING ON THE “ACCEPT” BUTTON, DOWNLOADING, INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE, YOU ARE CONSENTING TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE “DO NOT ACCEPT” BUTTON AND DO NOT DOWNLOAD, INSTALL, COPY OR USE THE SOFTWARE AND YOU WILL NOT HAVE ANY LICENSE TO ANY PART OF THE SOFTWARE. METALOGIX’ ACCEPTANCE IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. BY CLICKING “ACCEPT” YOU ACKNOWLEDGE AND AGREE ON BEHALF OF YOURSELF AND YOUR EMPLOYER (EACH A “LICENSEE”) TO BE BOUND TO THIS AGREEMENT. YOU REPRESENT THAT YOU ARE AUTHORIZED TO ACCEPT THIS AGREEMENT ON YOUR EMPLOYER’S BEHALF.

METALOGIX ENCOURAGES LICENSEE TO READ THIS AGREEMENT CAREFULLY AND ASSESS ITS USE OF THE SOFTWARE PRIOR TO INSTALLING OR USING THE SOFTWARE.

  1. SOFTWARE LICENSE. Subject to compliance with all of the terms and conditions of this Agreement, Metalogix grants to Licensee, a limited, nontransferable, nonexclusive, perpetual license to use the Software (a) in object code form for internal use, (b) in accordance with any licensed client, volume and/or other limitations set forth in the ordering document or quote (“Quote”) for the Software prepared for Licensee by Metalogix or an authorized Metalogix reseller or distributor (“Reseller”), and (c) in accordance with the associated documentation. Each copy of the Software may only be installed or used on the hardware or other devices as specified in the Quote. Licensee may make a single copy of the Software for safekeeping or "backup" purposes, provided all original proprietary notices are retained on any such copy. This License is for Licensee’s internal use only; Licensee may not assign the license to any third party for any reason whatsoever.
  2. RESTRICTIONS ON USE. Metalogix and its licensors shall at all times retain title to and ownership of the Software and the intellectual property rights therein. Licensee may not, directly or indirectly, (a) modify, translate, reverse engineer, decompile, disassemble (except to the extent applicable laws specifically prohibit such restriction), attempt to discover the source code or underlying ideas or algorithms of the Software or otherwise circumvent any technological measure that controls access to the Software; (b) create derivative works based on the Software; (c) copy (except for the purposes set forth above), rent, lease, distribute, or otherwise transfer rights to the Software; (d) use the Software for timesharing or service bureau purposes; (e) use the Software or any of the output generated by the Software for the benefit of any third party or to provide any commercial, consulting or development services for a third party; (f) remove any proprietary notices or labels on the Software; or (g) use the Software outside of any use restrictions set forth in the Quote (h) use the Software to migrate or manage end-user content to any Cloud storage platform. This Agreement is a license, not a sale of the Software and does not give Licensee any rights not expressly granted herein. Title and any related rights in the content accessed through use of the Software is the property of the applicable content owner and is protected by applicable law. The licenses granted pursuant to this Agreement give Licensee no rights to such content.
  3. CONTENT. Licensee Content consists of files (such as photos, documents music or video) uploaded or transferred on to ______________. Licensee is responsible for backing up its Content. Licensee represents and warrants that for the duration of this Agreement Licensee has all the rights necessary for the Content licensee uploads or shares on the Services and that the use of the Content, as contemplated in this paragraph, won't violate any law or rights of third parties.
  4. SUPPORT AND MAINTENANCE TERM. This Agreement and the rights and obligations granted herein shall commence on issuance of the term activation key provided by Metalogix or a Reseller and shall continue for a period of one (1) year thereafter or for such other period specified in the Quote (“Term”). This Agreement shall automatically expire at the end of the Term unless a renewal activation key is issued prior to the expiration of the Term.
  5. TERMINATION. Licensee may terminate this Agreement and the licenses granted herein at any time by destroying or removing from all computer systems all copies of the Software. This Agreement and the licenses granted herein will immediately and automatically terminate (a) if the maximum usage limitations as set forth in the applicable Quote are exceeded; (b) if Licensee breaches any provision of this Agreement; (c) if Licensee becomes insolvent or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement or comparable proceeding; or (d) as otherwise set forth in Sections 8 or 11 below. Upon any termination or expiration of this Agreement, Licensee shall (i) discontinue all use of the Software, (ii) immediately destroy or erase all copies of the Software and any files created using the Software, and (iii) return or destroy all Metalogix Confidential Information (defined below). Licensee is responsible for their Content. Sections 2, 4, 6, 9, 10, and 15 shall survive any termination or expiration of this Agreement.
  6. FEES. Licensee will pay to Metalogix or Licensee’s Reseller (as applicable) the fees for use of the Software specified in the Quote as of the date of issuance of the term activation key. Licensee will be responsible for all taxes (including sales, use, property, excise, value added and gross receipts but not including taxes based on Metalogix’ or a Reseller’s income), import duties and fees and charges of any kind levied or imposed by any federal, state or local governmental entity with respect to the Software.
  7. CONFIDENTIALITY. Licensee acknowledges that the Software, information relating to the Software and/or Metalogix, results derived from or methodology employed by Licensee in using the Software, including benchmarking, and the results of any such use, are the confidential and proprietary information of Metalogix (“Confidential Information”). In no event will Licensee reproduce, publish, disclose or use any Confidential Information other than as expressly permitted herein.
  8. SUPPORT AND MAINTENANCE.
    • Scope. As part of support and maintenance services, Licensee is entitled to receive Software updates, maintenance releases and major releases, which are made available from time to time at Metalogix’ sole discretion. Updates and maintenance releases only cover the minor releases within the same major version of the Software licensed to Licensee pursuant to this Agreement. Updates and maintenance releases may contain either or both enhancements to existing functions and corrections to defects and may or may not include additional features. Metalogix may include error corrections in updates, maintenance releases, or new major releases of the Software. All updates, major releases, minor releases and maintenance releases provided hereunder shall be deemed to be Software for purposes of this Agreement. 
  9. SUPPORT. Licensee may submit a request for support or report any Software problem or error 24 hours per day by accessing the support customer portal located at http://www.metalogix.com/Tools/SubmitTicket.aspx or calling 202.609.9100. Reseller, as applicable. If it is determined that a reported reproducible material error in the Software exists and significantly impairs the usability and utility of the Software, commercially reasonable efforts will be used to provide a workaround solution or correct the problem as defined in the Metalogix SLA which is periodically updated and located at http://www.metalogix.com/Tools/MetalogixServiceLevelAgreement.pdf. For additional information on support coverage, please visit http://www.metalogix.com/support.
    • Exclusions. Support only covers issues or questions resulting directly from the operation of the Software, and does not include generic consultation, assistance, or advice under any circumstances. The provision of support is subject to Licensee’s proper use of the Software and compliance with this Agreement. Installation of Software updates and maintenance releases may require the updating of non-Metalogix operating system and application software, which will not be provided under this Agreement. Without limiting the foregoing, Metalogix will be under no obligation to provide support if, in Metalogix’ or the applicable Reseller’s opinion, the Software has failed due to the following conditions: (a) damage caused by the relocation of the Software to another location or CPU; (b) alterations, modifications or attempts to change the Software; (c) causes external to the Software, such as natural disasters, the failure or fluctuation of electrical power, or computer equipment failure; (d) Licensee’s negligence, hardware, or third-party software malfunction or other causes beyond the reasonable control of Metalogix; (e) use of the Software, or any component thereof, in combination with another product or products not approved by Metalogix or in a hardware or an operating environment that is not supported by Metalogix; or (f) failure to maintain the Software at Metalogix’ specified release level.
    • Licensee Support Responsibilities. As a condition to receiving support hereunder, Licensee shall (a) comply with all specified operating and troubleshooting procedures; (b) provide immediate notification of any Software malfunction and provide complete information regarding any such malfunction; (c) be responsible for the security of its confidential information; (d) establish and maintain backup systems and procedures necessary to reconstruct lost or altered files, data or programs and (e) provide full, good faith cooperation to assist in diagnosis or study of errors, including without limitation remote access to the hardware on which the Software is installed, if requested. If requested, Licensee will promptly provide written verification of an error or malfunction reported and supporting example files that exhibit the Software problem and any other reasonable information by email, fax, or mail, setting forth in reasonable detail the respects in which the Software fails to perform.
  10. LIMITED WARRANTY. For a period of 30 days following the issuance of the term activation key (the “Warranty Period”), the Software will perform in all material respects in accordance with its then-current documentation. If within the Warranty Period Licensee provides Metalogix or its Reseller with written notice of a breach of this warranty specifying the failure in reasonable detail, then Metalogix will use commercially reasonable efforts to provide a workaround or repair or replace the affected portion of the Software at Metalogix’ sole cost and expense or in Metalogix’ sole discretion, terminate this Agreement and provide Licensee with a refund of fees paid to Metalogix for the Software. The foregoing is Licensee’s sole remedy for a breach of this warranty.
  11. DISCLAIMER OF WARRANTIES. THE LIMITED WARRANTY SET FORTH IN SECTION 8 IS IN LIEU OF ALL OTHER WARRANTIES, AND METALOGIX AND ITS RESELLERS HEREBY DISCLAIM ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, ACCURACY, OR THAT USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, AND ALL WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE. LICENSEE ASSUMES THE ENTIRE RISK AS TO THE USE, SELECTION, QUALITY AND PERFORMANCE OF THE SOFTWARE.
  12. LIMITATION OF LIABILITY. NEITHER METALOGIX NOR ITS LICENSORS SHALL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER TORT, CONTRACT, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY (A) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, DATA OR PROFIT, INTERRUPTION OF USE, STOPPAGE OF OTHER WORK, IMPAIRMENT OF OTHER ASSETS OR COMPUTER FAILURE OR MALFUNCTION, (B) FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES, (C) FOR ANY MATTER BEYOND METALOGIX’ REASONABLE CONTROL OR (D) FOR ANY DAMAGES IN EXCESS OF THE TOTAL AMOUNT OF FEES PAID TO METALOGIX IN RESPECT OF THE SOFTWARE, EVEN IF METALOGIX OR ITS LICENSORS SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.
  13. INTELLECTUAL PROPERTY INFRINGEMENT. In the event that the Software is held by a court of competent jurisdiction or reasonably believed by Metalogix to constitute an infringement of a third party’s intellectual property rights, Metalogix may at its option (a) modify the infringing portion of the Software so that it is non-infringing, (b) procure for Licensee sufficient rights to continue to exercise its rights under this Agreement, or (c) terminate this Agreement and the license hereunder and refund to Licensee the fees paid by Licensee for such Software, depreciated on a straight-line basis over the Term. This Section represents the sole right and remedy available to Licensee if the Software infringes the intellectual property rights of a third party.
  14. AUDIT. Licensee shall use reasonable efforts keep complete and accurate records and accounts of each copy of the Software deployed identifying the locations where each and every copy of the Software has been installed or deployed by Licensee. Licensee shall make these records reasonably available for audit by Metalogix upon reasonable prior written notice to Licensee, during regular business hours, at Licensee's principal place of business. Unless otherwise specified herein, the cost of the audit shall be at Metalogix's expense. If an audit reveals that the number of copies of the Software deployed by Licensee pursuant to this Agreement is greater than that licensed, Licensee shall pay the cost of the audit as well as promptly remit to Metalogix the appropriate license fees due for the number of copies of the Software deployed by Licensee in excess of that licensed.
  15. NOTICES. All notices hereunder shall be in writing, in English, effective upon receipt and shall be sufficient only if personally delivered, delivered by a major commercial rapid delivery courier service or mailed by certified or registered mail, return receipt requested; if to Metalogix, to: Metalogix International, Mühlentalstrasse 36, CH - 8200 Schaffhausen, Switzerland or if to Licensee to the address set forth in the Quote or other registration information provided by Licensee, each as amended by notice pursuant to this subsection.
  16. EXPORT CONTROLS. Licensee shall comply with all applicable export laws, restrictions, and regulations of the United States or foreign agency or authority. Licensee will not export, or allow the export or re-export of the Software in violation of any such laws, restrictions or regulations. Licensee shall obtain and bear all expenses relating to any necessary licenses and/or exemptions with respect to the export from the U.S. of the Software to any location in compliance with all applicable laws and regulations prior to delivery thereof by Metalogix or its Reseller. U.S.
  17. GOVERNMENT RESTRICTED RIGHTS. If any user of the Software is an agency, department or other entity of the United States Government, the use, duplication, reproduction, modification, release, disclosure or transfer of the Software is restricted in accordance with FAR 12.212 for civilian agencies and DFAR 227.7202 for military agencies. The Software is commercial computer software and the documentation is commercial computer software documentation. The use of the Software and documentation is further restricted in accordance with the terms of this Agreement.
  18. MISCELLANEOUS. This Agreement shall be governed by the laws of the United States and the State of New York without regard to the conflicts of laws provisions thereof. Metalogix and Licensee hereby agree that the sole and exclusive jurisdiction and venue for any litigation arising out of or relating to this Agreement or the subject matter hereof shall be in an appropriate federal or state court in New York, New York, USA. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. This Agreement together with the Quote represents the complete agreement concerning this license between the parties and supersedes all prior agreements and representations between them with respect to the subject matter hereof. This Agreement may be amended only by a writing executed by duly authorized representatives of both parties. If any provision of this Agreement is held to be invalid, illegal, or unenforceable in any respect, such provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full effect and enforceable. The headings to the sections of this Agreement are used for convenience only and shall have no substantive meaning. Every exemption from liability, limitation and condition contained in this Agreement for the benefit of Metalogix and every defense and immunity applicable to Metalogix or to which Metalogix is entitled will also be available and extend to every parent company, subsidiary, affiliate, Reseller and licensor of Metalogix and their respective directors, officers, employees, agents and independent contractors. Licensee formally and irrevocably grants its consent to any assignment, substitution or any other legal action required to make the previous sentence fully enforceable. Neither the rights nor the obligations arising under this Agreement are assignable or transferable by Licensee, and any such attempted assignment or transfer shall be void and without effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns. This Agreement is not intended to nor shall it be construed as a joint venture, association, partnership or other form of business or agency relationship. Any waivers shall be effective only if made in writing executed by duly authorized representatives of both parties. Metalogix’ failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision. In any action to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. Licensee acknowledges and agrees that due to the unique nature of the Software, there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach may allow Licensee or third parties to unfairly compete with Metalogix resulting in irreparable harm to Metalogix, and therefore, that upon any such breach or threat thereof, Metalogix shall be entitled to injunctions and other appropriate equitable relief in addition to whatever remedies it may have at law.
  19. ACKNOWLEDGEMENT. Licensee acknowledges and agrees that it has read and understands this Agreement and that this Agreement has the same force and effect as a signed agreement.