INFLECTRA SOFTWARE END USER LICENSE AGREEMENT
IMPORTANT:
THIS
SOFTWARE END USER LICENSE AGREEMENT (“EULA”) IS A LEGAL AGREEMENT BETWEEN YOU
AND INFLECTRA. READ IT CAREFULLY BEFORE COMPLETING THE INSTALLATION PROCESS AND
USING THE SOFTWARE. IT PROVIDES A LICENSE TO USE THE SOFTWARE AND CONTAINS
WARRANTY INFORMATION AND LIABILITY DISCLAIMERS. BY INSTALLING AND USING THE
SOFTWARE, YOU ARE CONFIRMING YOUR ACCEPTANCE OF THE SOFTWARE AND AGREEING TO
BECOME BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY
THESE TERMS, THEN DO NOT INSTALL THE SOFTWARE AND RETURN THE SOFTWARE TO YOUR
PLACE OF PURCHASE FOR A FULL REFUND.
THIS EULA SHALL APPLY ONLY TO THE SOFTWARE SUPPLIED BY INFLECTRA
HEREWITH REGARDLESS OF WHETHER OTHER SOFTWARE IS REFERRED TO OR DESCRIBED
HEREIN.
1. Definitions
(a) “Bundle” means the Software, together with such other
Inflectra software product, if any, distributed with the Software that may be
operated on the same type of computer on which the Software is operated.
(b) “Commercial Version” means a version of the Software that is
neither a Developer Version, an Academic Version, Government Version, a Not For
Resale Version, nor a Trial Version.
(c) “Concurrent-User-Based Software” means software that is
licensed based on the number of users that can simultaneously access the
software. Examples of this include: SpiraTest Express, Economy, Standard, and
Professional editions
(d) “Developer Version” means a version of the Software, so
identified, to be used internally only and solely for the purposes of design,
development and evaluation.
(e) “CPU-Based Software” means, if applicable, a Software that is
neither a Server-Based Software nor a Concurrent-User-Based Software.
(f) “Fixed-License-Based Software” means software that is licensed
based on the number of named users or individual installations. Examples of this
include: Rapise Fixed Licenses.
(g) "Academic Version" means a version of the Software, so
identified, for use by qualified academic educational institutions, including
the students and faculty thereof, only.
(h) "Government Version" means a version of the Software, so
identified, for use by qualified U.S. Government Agencies, including any
supporting contractors, only. In this
instance, the Software
is provided to the U.S. Government as commercial computer software under FAR
12.212 and DFARS 227.7202, or an equivalent provision (e.g., in supplements of
various U.S. government agencies, as applicable).
(i) "Not For Resale (NFR) Version" means a version, so identified,
of the Software to be used to review and evaluate the Software, only.
(j) "Inflectra" means
Inflectra Corporation and its licensors or affiliates, if any.
(k) “Sample Application Code” shall have the meaning ascribed to
it in Section 2(d) of this Agreement.
(l) “Server-Based Software” means, if applicable a Software that
is to be installed solely on one server within an organization.
(m) “Enterprise-Based Software” means, if applicable a Software
that is to be installed solely within an organization and its legal
subsidiaries, but not at any third-parties (including but not limited to
customers, vendors, partners or clients). SpiraTest Enterprise edition is an
example of this.
(n) "Software" means only the Inflectra software program(s) and
third party software programs, in each case, supplied by Inflectra herewith, and
corresponding documentation, associated media, printed materials, and online or
electronic documentation.
(o) "Trial Version" means a version of the Software, so
identified, to be used only to review, demonstrate and evaluate the Software for
a limited time period. The Trial Version may have limited features, may lack the
ability for the end-user to save the end product, and will cease operating after
a predetermined amount of time due to an internal mechanism within the Trial
Version.
(p) “Organization” means the legal entity purchasing the software.
In the case of local, state, territory or federal governments, organization will
be limited to the specific department or statutory agency of Government
purchasing the license.
2. License Grants
The licenses granted in this Section 2 are subject to the terms
and conditions set forth in this EULA:
(a) If the Software is (i) a Developer Version, (ii) a Trial
Version, (iii) a Fixed License Version, or (iv) any version of a Server-Based
Software, this Section 2(a), and not Section 2(b) nor Section 2(c), shall apply:
Subject to the terms and conditions of this Agreement, Inflectra hereby grants,
and you accept, the right and license to install and use the Software on a
single computer. A license for the Software may not be shared, installed nor
used concurrently on different computers.
(b) If the Software is a (i) Commercial Version, (ii) Academic
Version, (iii) Government Version or (iv) Not For Resale Version, in each case,
of a CPU-Based Software, this Section 2(b), and not Section 2(a) nor Section
2(c), shall apply: Subject to the terms and conditions of this Agreement,
Inflectra hereby grants, and you accept, the right and license to install and
use the Software on one or more computers, provided, however, that the total
number of CPUs from all of the computers in which the Software is installed does
not exceed the total number of CPU licenses purchased for such installation and
use.
(c) If the Software is a (i) Commercial Version, (ii) Academic
Version, (iii) Government Version or (iv) Not For Resale Version, in each case,
of a Concurrent-User-Based Software, this Section 2(c), and not Section 2(a) nor
Section 2(b), shall apply: Subject to the terms and conditions of this
Agreement, Inflectra hereby grants, and you accept, the right and license to
install and use the Software on one or more computers, provided, however, that
the total number of individuals who may simultaneously access the Software, or
the presentation, information, or content displayed or delivered using the
Software, may not exceed the concurrent-user licenses purchased for such
installation and use.
(d) If the Software is any version of an Enterprise-Based
Software, this Section 2(d), and not the preceding Sections 2(a), 2(b) nor
Section 2(c), shall apply: Subject to the terms and conditions of this
Agreement, Inflectra hereby grants, and you accept, the right and license to
install and use the Software on an unlimited number of computers within a legal
organization and its wholly owned subsidiaries. A license for the Software may
not be shared, installed nor used concurrently with third-parties including but
not limited to customers, vendors, partners or clients.
(e) For Sample Application Code, if any, only: You may modify the
HTML, ASPX, C#, JavaScript, DHTML, XSLT, or similar sample application code form
of those portions of the Software that are identified,
if any
,
as sample application code in the documentation (the "Sample Application Code")
solely for the purposes of designing, developing and testing your own software
applications. However, you are permitted to use, copy and redistribute your
modified sample code only if all of the following conditions are met: (A) you
include Inflectra’s copyright notice (if any) with your application, including
every location in which any other copyright notice appears in your application;
(B) you do not otherwise use Inflectra's name, logos or other Inflectra
trademarks to market your application; (C) there is installed and running on
each server in conjunction with which your application is running one or more
duly licensed copies, as required, of the Commercial Version, Government Version
or, if applicable and subject to Section 3(f) hereof, Academic Version; and (D)
such modified sample code is designed to operate only in connection with the
Software. You agree to indemnify, hold harmless and defend Inflectra from and
against any loss, damage, claims or lawsuits, including attorney's fees that
arise or result from the use or distribution of your application.
(f) You may make one copy of the Software in machine-readable form
solely for backup purposes. You must reproduce on any such copy all copyright
notices and any other proprietary legends on the original copy of the Software.
(g) You agree that Inflectra may audit your use of the Software
for compliance with these terms at any time, upon reasonable notice. In the
event that such audit reveals any use of the Software by you other than in full
compliance with the terms of this Agreement, you shall reimburse Inflectra for
all reasonable expenses related to such audit in addition to any other
liabilities you may incur as a result of such non-compliance.
(h) Your license rights under this EULA are non-exclusive.
3. License Restrictions
Except to the extent contrary to applicable law:
(a) Other than as expressly set forth in Section 2, you may not
make or distribute copies of the Software, or electronically transfer the
Software from one computer to another or over a network.
(b) You may not alter, merge, adapt or translate the Software, or
decompile, reverse engineer, disassemble, or otherwise reduce the Software to a
human-perceivable form.
(c) Unless otherwise provided herein, you may not rent, lease, or
sublicense the Software. Unless otherwise expressly authorized in a separate
written agreement between, and executed by, you and Inflectra, you may not use,
or permit the use of, the Software on a timeshare or service bureau basis. In
addition, unless otherwise expressly authorized in a separate written agreement
between, and executed by, you and Inflectra, you may not host, on a subscription
basis or otherwise, the Software (1) to permit a third party to use the Software
to create any content, or (2) to conduct conferences or on-line meeting services
for a third party.
(d) Other than with respect to a Trial Version, Developer Version
or a Not For Resale Version of the Software, you may permanently transfer all of
your rights under this EULA only as part of a sale or transfer, provided you
retain no copies, you transfer all of the Software (including all component
parts, the media and printed materials, any upgrades, this EULA, the serial
numbers, and, if applicable, all other software products provided together with
the Software), and the recipient agrees to the terms of this EULA. If the
Software is an upgrade, any transfer must include all prior versions of the
Software from which you are upgrading. If the copy of the Software is licensed
as part of the Bundle, the Software shall be transferred only with and as part
of the sale or transfer of the whole Bundle and not separately. You may retain
no copies of the Software. You may not sell or transfer any Software purchased
under a volume discount. You may not sell or transfer any Trial Version,
Developer Version or Not For Resale Version of the Software.
(e) Other than as expressly set forth in Section 2(d) hereof, you
may not modify the Software or create derivative works based upon the Software.
(f) Academic Versions may not be used for, or distributed to any
party for, any commercial purpose.
(g) Unless otherwise provided herein, you shall not (A) in the
aggregate, install or use more than one copy of the Trial Version of the
Software, (B) download the Trial Version of the Software under more than one
username, (C) alter the contents of a hard drive or computer system to enable
the use of the Trial Version of the Software for an aggregate period in excess
of the trial period for one license to such Trial Version, (D) disclose the
results of software performance benchmarks obtained using the Trial Version to
any third party without Inflectra’s prior written consent, (E) use the Trial
Version for any application deployment or ultimate production purpose, or (F)
use the Trial Version of the Software for a purpose other than the sole purpose
of determining whether to purchase a license to a commercial or academic version
of the software; provided, however, notwithstanding the foregoing, you are
strictly prohibited from installing or using the Trial Version of the Software
for any commercial training purpose.
(h) You shall not (A) use the Developer Version for any
application deployment in a live or stand-by production environment or staging
environment, in each case, including, without limitation, in any environment
accessed by application end-users including but not limited to servers,
workstations, kiosks, and mobile computers , (B) use or deploy the Developer
Version other than internally for the sole purpose of designing, developing, and
evaluating applications pursuant to the terms and conditions set forth in this
EULA, (C) access the Developer Version from more than five IP addresses at any
given time, or (D) use the Developer Version to deploy applications that are
accessed by end users.
(i) You shall not use the Software to develop any application
having the same primary function as the Software.
(j) You may only use the Not for Resale Version of the Software to
review and evaluate the Software.
(k) You may not export the Software into any country prohibited by
the United States Export Administration Act and the regulations thereunder.
(l) You may receive the Software in more than one medium but you
shall only install or use one medium. Regardless of the number of media you
receive, you may use only the medium that is appropriate for the computer on
which the Software is to be installed.
(m) The license of the Bundle is licensed as a single product and
none of the products in the Bundle, including the Software, may be separated for
installation or use on more than one computer.
(n) In the event that you fail to comply with this EULA, Inflectra
may terminate the license and you must destroy all copies of the Software (with
all other rights of both parties and all other provisions of this EULA surviving
any such termination).
4. Upgrades and Bundles
If this copy of the Software is an upgrade from an earlier version
of the Software, it is provided to you on a license exchange basis. You agree by
your installation and use of such copy of the Software to voluntarily terminate
your earlier EULA and that you will not continue to use the earlier version of
the Software or transfer it to another person or entity unless such transfer is
pursuant to Section 3(d). If this copy of the Software is licensed as part of
the Bundle, and you have a prior license to the same version of the Software,
and the Bundle was licensed to you with a discount based, in whole or in part,
on your prior license to the same version of the Software, the Software is
provided to you on a license exchange basis. You agree by your installation and
use of this copy of the Software to voluntarily terminate your EULA with respect
to such prior license to the Software and that you will not continue to install
or use such prior license of the Software or transfer it to another person or
entity.
5. Ownership
The foregoing grants of rights give you limited license to use the
Software. Except as expressly provided in this Agreement, Inflectra and its
suppliers retain all right, title and interest, including all copyright and
intellectual property rights, in and to, the Software (as an independent work
and as an underlying work serving as a basis for any improvements,
modifications, derivative works, and applications you may develop), and all
copies thereof. All rights not specifically granted in this EULA, including
Federal and International Copyrights, are reserved by Inflectra and its
suppliers.
6. LIMITED WARRANTY AND DISCLAIMER
(a) Except with respect to the Sample Application Code and the
Trial Version, the Developer Version and Not For Resale Version of the Software,
Inflectra warrants that, for a period of ninety (90) days from the date of
delivery (as evidenced by a copy of your receipt): (i) when used with a
recommended hardware configuration, the Software will perform in substantial
conformance with the documentation supplied with the Software; and (ii) the
physical media on which the Software is furnished will be free from defects in
materials and workmanship under normal use.
(b) INFLECTRA PROVIDES NO REMEDIES OR WARRANTIES, WHETHER EXPRESS
OR IMPLIED, FOR THE SAMPLE APPLICATION CODE OR THE TRIAL VERSION, THE DEVELOPER
VERSION AND THE NOT FOR RESALE VERSION OF THE SOFTWARE. THE SAMPLE APPLICATION
CODE AND THE TRIAL VERSION, THE DEVELOPER VERSION AND THE NOT FOR RESALE VERSION
OF THE SOFTWARE ARE PROVIDED “AS IS”.
(c) EXCEPT AS SET FORTH IN THE FOREGOING LIMITED WARRANTY WITH
RESPECT TO SOFTWARE OTHER THAN THE SAMPLE APPLICATION CODE AND THE TRIAL
VERSION, THE DEVELOPER VERSION AND NOT FOR RESALE VERSION, INFLECTRA AND ITS
SUPPLIERS DISCLAIM ALL OTHER WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS,
IMPLIED, OR OTHERWISE, INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE. ALSO, THERE IS NO WARRANTY OF NON-INFRINGEMENT AND
TITLE OR QUIET ENJOYMENT. INFLECTRA DOES NOT WARRANT THAT THE SOFTWARE IS
ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. NO RIGHTS OR REMEDIES REFERRED
TO IN ARTICLE 2A OF THE UCC WILL BE CONFERRED ON YOU UNLESS EXPRESSLY GRANTED
HEREIN. THE SOFTWARE IS NOT DESIGNED, INTENDED OR LICENSED FOR USE IN HAZARDOUS
ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING WITHOUT LIMITATION, THE
DESIGN, CONSTRUCTION, MAINTENANCE OR OPERATION OF NUCLEAR FACILITIES, AIRCRAFT
NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR
WEAPONS SYSTEMS. INFLECTRA SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED
WARRANTY OF FITNESS FOR SUCH PURPOSES.
(d) IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE
SOFTWARE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM
THE DATE OF DELIVERY.
(e) NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY INFLECTRA,
ITS DEALERS, DISTRIBUTORS, AFFILIATES, AGENTS OR EMPLOYEES SHALL CREATE A
WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN.
(f) SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED
WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU
SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM
STATE TO STATE.
7. Exclusive Remedy
Your exclusive remedy under the preceding is to return the
Software to the place you acquired it, with a copy of your receipt and a
description of the problem. Provided that any non-compliance with the above
warranty is reported in writing to Inflectra no more than ninety (90) days
following delivery to you, Inflectra will use reasonable commercial efforts to
supply you with a replacement copy of the Software that substantially conforms
to the documentation, provide a replacement for defective media, or refund to
you your purchase price for the Software, at its option. Inflectra shall have no
responsibility if the Software has been altered in any way, if the media has
been damaged by misuse, accident, abuse, modification or misapplication, or if
the failure arises out of use of the Software with other than a recommended
hardware configuration. Any such misuse, accident, abuse, modification or
misapplication of the Software will void the warranty above. THIS REMEDY IS THE
SOLE AND EXCLUSIVE REMEDY AVAILABLE TO YOU FOR BREACH OF EXPRESS OR IMPLIED
WARRANTIES WITH RESPECT TO THE SOFTWARE AND RELATED DOCUMENTATION.
8. LIMITATION OF LIABILITY
(a) NEITHER INFLECTRA NOR ITS SUPPLIERS SHALL BE LIABLE TO YOU OR
ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, COVER OR
CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY
TO USE EQUIPMENT OR ACCESS DATA, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS
INTERRUPTION OR THE LIKE), ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE
SOFTWARE AND BASED ON ANY THEORY OF LIABILITY INCLUDING BREACH OF CONTRACT,
BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE,
EVEN IF INFLECTRA OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF
ITS ESSENTIAL PURPOSE.
(b) INFLECTRA’S TOTAL LIABILITY TO YOU FOR ACTUAL DAMAGES FOR ANY
CAUSE WHATSOEVER WILL BE LIMITED TO THE GREATER OF $500 OR THE AMOUNT PAID BY
YOU FOR THE SOFTWARE THAT CAUSED SUCH DAMAGE.
(c) SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF
LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR
EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT
VARY FROM STATE TO STATE.
(d) THE FOREGOING LIMITATIONS ON LIABILITY ARE INTENDED TO APPLY
TO THE WARRANTIES AND DISCLAIMERS ABOVE AND ALL OTHER ASPECTS OF THIS EULA.
9. Basis of Bargain
The Limited Warranty and Disclaimer, Exclusive Remedies and
Limitation of Liability set forth above are fundamental elements of the basis of
the agreement between Inflectra and you. Inflectra would not be able to provide
the Software on an economic basis without such limitations. Such Limited
Warranty and Disclaimer, Exclusive Remedies and Limitation of Liability inure to
the benefit of Inflectra’s licensors.
10.
This Software and the documentation are provided with "RESTRICTED
RIGHTS” applicable to private and public licenses alike. Without limiting the
foregoing, use, duplication, or disclosure by the U.S. Government is subject to
restrictions as set forth in this EULA and as provided in DFARS 227.7202-1(a)
and 227.7202-3(a) (1995), DFARS 252.227-7013 (c)(1)(ii)(OCT 1988), FAR
12.212(a)(1995), FAR 52.227-19, or FAR 52.227-14, as applicable. Manufacturer:
Inflectra Corporation,
11. (Outside of the
The limitations or exclusions of warranties and liability
contained in this EULA do not affect or prejudice the statutory rights of a
consumer, i.e., a person acquiring goods otherwise than in the course of a
business.
The limitations or exclusions of warranties, remedies or liability
contained in this EULA shall apply to you only to the extent such limitations or
exclusions are permitted under the laws of the jurisdiction where you are
located.
12. Third Party Software
The Software may contain third party software which requires
notices and/or additional terms and conditions. Such required third party
software notices and/or additional terms and conditions are located at
http://www.inflectra.com/Company/Legal%20Notices.aspx
and are
made a part of and incorporated by reference into this EULA. By accepting this
EULA, you are also accepting the additional terms and conditions, if any, set
forth therein.
13. General
This EULA shall be governed by the internal laws of the State of
This EULA contains the complete agreement between the parties with
respect to the subject matter hereof, and supersedes all prior or
contemporaneous agreements or understandings, whether oral or written. You agree
that any varying or additional terms contained in any purchase order or other
written notification or document issued by you in relation to the Software
licensed hereunder shall be of no effect. The failure or delay of Inflectra to
exercise any of its rights under this EULA or upon any breach of this EULA shall
not be deemed a waiver of those rights or of the breach.
Any dispute resolution proceedings, whether in arbitration or
court, will be conducted only on an individual basis and not in a class or
representative action or as a named or unnamed member in a class, consolidated,
representative or private attorney general legal action, unless both you and
Inflectra specifically agree to do so in writing following initiation of the
arbitration. This provision does not preclude your participation as a member in
a class action filed on or before August 20, 2011.
No Inflectra dealer, agent, affiliate or employee is authorized to
make any amendment to this EULA.
If any provision of this Agreement shall be held by a court of
competent jurisdiction to be contrary to law, that provision will be enforced to
the maximum extent permissible, and the remaining provisions of this Agreement
will remain in full force and effect.
All questions concerning this EULA shall be directed to: Inflectra
Corporation, 8121 Georgia Ave, Suite 504, Silver Spring, MD 20910, Attention:
General Counsel.
Inflectra, SpiraTest and other trademarks contained in the
Software are trademarks or registered trademarks of Inflectra Corporation in the