SOFTWARE LICENSE AGREEMENT
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE DOWNLOADING, INSTALLING OR USING THE EMSI SOFTWARE GMBH SOFTWARE THAT ACCOMPANIES THIS SOFTWARE LICENSE AGREEMENT OR ANY ACCOMPANYING DOCUMENTATION (COLLECTIVELY, THE “SOFTWARE”).
THE TERMS AND CONDITIONS OF THIS SOFTWARE LICENSE AGREEMENT AND THE EMSI SOFTWARE GMBH ORDERING DOCUMENT YOU EXECUTED OR AGREED TO, AND (WHERE APPLICABLE) ANY EMSI SOFTWARE GMBH License Key information PROVIDED BY EMSI SOFTWARE GMBH, IN EACH CASE GOVERNING YOUR LICENSE TO THE SOFTWARE (COLLECTIVELY, THE “PURCHASE RECEIPT”) (THIS SOFTWARE LICENSE AGREEMENT AND THE PURCHASE RECEIPT COLLECTIVELY, THIS “AGREEMENT”) GOVERN USE OF THE SOFTWARE UNLESS YOU AND EMSI SOFTWARE GMBH HAVE EXECUTED A SEPARATE WRITTEN AGREEMENT GOVERNING USE OF THE SOFTWARE.
THIS SOFTWARE LICENSE AGREEMENT CONTAINS A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER. IF YOU ARE RESIDENT IN THE U.S., THESE AFFECT YOUR RIGHTS TO RESOLVE A DISPUTE WITH EMSI SOFTWARE GMBH, AND YOU SHOULD READ THEM CAREFULLY.
EMSI SOFTWARE GMBH is willing to license the Software to you only upon the condition that you accept all the terms contained in this Agreement. By clicking to accept where indicated below or by downloading, installing or using the Software, you have indicated that you understand this Agreement and accept all of its terms. If you are accepting the terms of this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to the terms of this Agreement, and, in such event, “you” and “your” will refer to that company or other legal entity. If you do not accept all the terms of this Agreement, then EMSI SOFTWARE GMBH is unwilling to license the Software to you, and you must return the Software to the place of purchase for a refund, if you have paid for the license to the Software, or, if EMSI SOFTWARE GMBH has made the Software available to you without charge, you must destroy all copies of the Software. If you have paid for the license to the Software and the place of purchase will not accept your return, you can contact EMSI SOFTWARE GMBH directly. Your right to return the Software for a refund expires 30 days after the date of purchase.
1. Grant of License.
(a) Paid Subscription License & Restrictions If you purchased a license to the Software from EMSI SOFTWARE GMBH or from an authorized EMSI SOFTWARE GMBH reseller, then the license grant and license restrictions applicable to your use of the Software are as set forth in the applicable license exhibit attached hereto for the type of Software indicated on your Purchase Receipt or applicable purchasing documentation accompanying the Software.
(b) Free License. If you are using a free version of the Software, then conditioned upon your compliance with the terms and conditions of this Agreement, EMSI SOFTWARE GMBH grants you a non-exclusive and non-transferable license to Execute (as defined herein) a single copy of the Software solely in executable form on a single computer or virtual machine (a “Computer”), solely for your personal, non-commercial purposes (i.e., not on Computers used in a business). You may not transfer the Software to a different user, except that once installed onto a Computer, the Software may be operated by any person directly using the Computer (i.e., not remotely), provided that that person resides in, or is a guest in, your household and that you are responsible for each such person’s operation of the Software. You may not run the Software on a network, but must install it only on the individual Computer(s) you are licensed for and run it locally on those Computers. For purposes of this Agreement, “Execute” and “Execution” means to load, install, and run the Software locally on a single Computer in order to benefit from its functionality as designed by EMSI SOFTWARE GMBH.
(c) Trial License. If you have obtained a trial or evaluation version of the Software from EMSI SOFTWARE GMBH or from an authorized EMSI SOFTWARE GMBH reseller, then conditioned upon your compliance with the terms and conditions of this Agreement, EMSI SOFTWARE GMBH grants you a non-exclusive and non-transferable license to Execute the Software solely in executable form, solely for testing and evaluation purposes, and not for production use. The foregoing trial license permits Execution of only such number of copies of the Software, and on such number of Computers, as is expressly permitted by EMSI SOFTWARE GMBH with respect to such trial. If no such number of copies or Computers is specified by EMSI SOFTWARE GMBH, the foregoing trial license permits Execution of a single copy of the Software on a single Computer. You may not transfer the Software to a different user, except that once installed onto a Computer, the Software may be operated by any person directly using the Computer (i.e., not remotely), provided that you are responsible for each such person’s operation of the Software. You may run the Software on a network, provided that you have a license for each Computer that can access the Software over that network. (d) Restrictions on Free & Trial License You may transfer the Software to a different Computer if you uninstall and remove the Software from the first Computer when you install it on the other Computer. For avoidance of doubt, you must have a license to the Software for every Computer on which you operate the Software. You may not use on behalf of, or make the functionality of the Software available to, third parties for any purpose, including, but not limited to, providing any computer repair, help desk or troubleshooting service. You may not combine this Software with any third party script, application, hardware or tools which would cause it to run on an automated or unattended basis. You may not: (a) copy (except in the course of loading or installing) or modify the Software, including but not limited to adding new features or otherwise making adaptations that alter the functioning of the Software; (b) transfer, sublicense, lease, lend, rent or otherwise distribute the Software to any third party; or (c) make the functionality of the Software available to any third party through any means, including but not limited to by uploading the Software to a network or file-sharing service or through any hosting, application services provider, service bureau, software-as-a-service (SaaS) or any other type of services. You acknowledge and agree that portions of the Software, including but not limited to the source code and the specific design and structure of individual modules or programs, constitute or contain trade secrets of EMSI SOFTWARE GMBH and its licensors. Accordingly, you agree not to disassemble, decompile or reverse engineer the Software, in whole or in part, or permit or authorize a third party to do so, except to the extent such activities are expressly permitted by law notwithstanding this prohibition.
2. Ownership. Each copy of the Software is licensed, not sold. For purposes of this Agreement, the terms “purchase,” “sell” and like terms refers to purchase or sale of a license to use the Software and not to a purchase or sale of title to or ownership of any rights or other interests in the Software. You own the media on which the Software is recorded, but you acknowledge and agree that EMSI SOFTWARE GMBH retains ownership of the Software itself and any related data or databases used by EMSI SOFTWARE GMBH or the Software (the “Database”), including all intellectual property rights therein. The Software and Database are protected by U.S. copyright law and international treaties. You will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices or markings appearing on the Software as delivered to you. EMSI SOFTWARE GMBH reserves all rights in the Software and Database not expressly granted to you in this Agreement.
3. Updates. From time to time, EMSI SOFTWARE GMBH may, but has no obligation to, provide updates to the Software. You are advised to update the Software regularly, or to set it to update automatically if that feature is available in your version of the Software. If you are a paying customer with a current subscription, EMSI SOFTWARE GMBH will make available to you at no additional cost the standard updates and maintenance and support that are made generally available at no additional cost to paying subscribers in accordance with EMSI SOFTWARE GMBH policies from time to time. Nothing in this Agreement entitles you to receive any support, maintenance, updates, upgrades, content or new versions of the Software, unless you are a paying customer with a current subscription. EMSI SOFTWARE GMBH reserves the right to designate any updates, additional content or features as requiring separate payment or purchase of a separate subscription at any time. EMSI SOFTWARE GMBH specifically reserves the right to cease providing, updating, or maintaining the Software or Database at any time in its sole discretion. If you have entered into a separate maintenance and support or similar agreement with EMSI SOFTWARE GMBH, then EMSI SOFTWARE GMBH will provide Software maintenance and support in accordance with the terms of that agreement, not this Agreement.
4. Term.
(a) Paid Subscription License Term. If you have purchased a license to the Software, then the initial term of this Agreement commences on the date specified in the Purchase Receipt or applicable purchasing documentation accompanying the Software (or if no such date is specified, the date you initially install a copy of the Software on a Computer (regardless of the number of copies of the Software that you are permitted to use in accordance with this Agreement)), and, in each case, continues for the period of time set forth in the Purchase Receipt or applicable purchasing documentation (or, if no such date is specified, for one (1) year). At the end of such initial term (and each renewal term thereafter, if any), subject always to payment of the applicable license fees for each such renewal term, this Agreement will automatically renew for additional successive terms equal to the period of time set forth in the applicable renewal Purchase Receipt or purchasing documentation (or, if no such date is specified, for additional successive terms of one (1) year), unless either party provides the other party with notice of nonrenewal at least thirty (30) days prior to the end of the then-current term. (b) Free License Term. If you have obtained a license to a free version of the Software, then your license will continue until terminated in accordance with this Agreement.
(c) Trial License Term. If you have obtained a trial license to the Software, then your license will continue for such time period as may be specified by EMSI SOFTWARE GMBH with respect to such trial (or, if no such period is specified, for ninety (90) days). In addition, EMSI SOFTWARE GMBH may terminate your trial license at any time at its sole discretion.
(d) Termination Rights. You may terminate the license at any time by destroying all copies of the Software in your possession or control. The license granted under this Agreement will automatically terminate, with or without notice from EMSI SOFTWARE GMBH, if you breach any term of this Agreement. Without limiting the foregoing, if you fail to pay the applicable license fees as specified in the Purchase Receipt or applicable purchasing documentation, your license to the Software ends automatically. You acknowledge that upon expiration or termination of your license, the Software and any license key may automatically de-activate and you may no longer be able to access and use the Software. If you assert any patents against us or any of our other customers based on use of the Software, your license to the Software ends automatically.
(e) Effects of Termination. Termination of this Agreement, other than pursuant to Section 7, does not entitle you to a refund of any pre-paid fees. Sections 2, 4(e), 5, 6, 8, 11 and 12 of this Agreement will survive any termination or expiration of this Agreement. Upon termination or expiration of this Agreement, your rights to use the Software cease.
5. Privacy Policy. By entering into this Agreement you agree to the terms of EMSI SOFTWARE GMBH’ privacy policy, which can be found at www.emsi-software-gmbh.org (the “Privacy Policy”). More information concerning what data is collected and used by EMSI SOFTWARE GMBH and how it is used is available in the Privacy Policy. Without limiting the Privacy Policy, you agree that EMSI SOFTWARE GMBH may track certain data it obtains from your Computer including data about any malicious software or other threats flagged by the Software, data about your license, data about what version of the Software you are using and what operating conditions it runs under and data concerning your geographic location. This information is collected and used for the purpose of tracking malicious software and other security threats and evaluating and improving EMSI SOFTWARE GMBH’ products and services. In the event that any user who operates the Software as permitted under this Agreement (including, if you are a business customer, your employees or contractors) makes a complaint or claim based on the tracking or collection of data in accordance with this Section 5, you agree that you are solely responsible for addressing any such complaints or claims.
6. Limited Warranty; Disclaimer. EMSI SOFTWARE GMBH warrants that any physical media manufactured by EMSI SOFTWARE GMBH on which the Software is distributed will be free from defects for a period of sixty (60) days from the date of delivery of the Software to you. Your sole and exclusive remedy, and EMSI SOFTWARE GMBH’ sole liability, in the event of a breach of the foregoing warranty will be that EMSI SOFTWARE GMBH will, at its option, replace any defective media returned to EMSI SOFTWARE GMBH within the warranty period or refund the money you paid for the Software. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (a) THE LIMITED WARRANTY SET FORTH IN THIS SECTION 6 IS EXCLUSIVE AND LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED; AND (b) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN THIS SECTION 6, EMSI SOFTWARE GMBH DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY WARRANTIES AND CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM EMSI SOFTWARE GMBH OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT. EMSI SOFTWARE GMBH does not warrant that the Software will meet your requirements, that the Software will operate in the combinations that you may select for Execution, that the operation of the Software will be error-free or uninterrupted, or that all Software errors will be corrected. EMSI SOFTWARE GMBH specifically disclaims any warranty or representation as to the Software’s ability to eliminate any specific malware threats or the completeness of the Database or protection modules.
For Australian consumers (as defined under the Australian Consumer Law) only:
Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
7. Indemnity. EMSI SOFTWARE GMBH will defend or settle any action brought against you to the extent that it is based upon a claim that the Software, as provided by EMSI SOFTWARE GMBH to you under this Agreement and used within the scope of this Agreement, infringes any U.S. patent or any copyright or misappropriates any trade secret, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded against you, provided that you: (a) promptly notify EMSI SOFTWARE GMBH in writing of the claim; (b) grant EMSI SOFTWARE GMBH sole control of the defense and settlement of the claim; and (c) provide EMSI SOFTWARE GMBH, at EMSI SOFTWARE GMBH' expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim. If your use of any of the Software hereunder is, or in EMSI SOFTWARE GMBH’ opinion is likely to be, enjoined due to the type of claim specified in this Section, EMSI SOFTWARE GMBH may, at its sole option and expense: (x) procure for you the right to continue using such Software under the terms of this Agreement; (y) replace or modify such Software so that it is non-infringing and substantially equivalent in function to the enjoined Software; or (z) if options (x) and (y) above cannot be accomplished despite EMSI SOFTWARE GMBH' reasonable efforts, then EMSI SOFTWARE GMBH may terminate your rights and EMSI SOFTWARE GMBH' obligations hereunder with respect to such Software and refund to you the unamortized portion of the license fees paid by you for such Software, based upon a straight-line five (5) year depreciation commencing as of the date of receipt by you of such Software. Notwithstanding the terms of this Section, EMSI SOFTWARE GMBH will have no liability for any infringement or misappropriation claim of any kind to the extent that it results from: (A) modifications to the Software made by a party other than EMSI SOFTWARE GMBH, if a claim would not have occurred but for such modifications; (B) the combination, operation or use of the Software with equipment, devices, software or data not supplied by EMSI SOFTWARE GMBH, if a claim would not have occurred but for such combination, operation or use; (C) your failure to use updated or modified Software provided by EMSI SOFTWARE GMBH to avoid a claim; or (D) your use of the Software other than in accordance with this Agreement or the associated documentation. THE PROVISIONS OF THIS SECTION 7 SET FORTH EMSI SOFTWARE GMBH’ SOLE AND EXCLUSIVE OBLIGATIONS, AND YOUR SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.
8. Limitation of Liability EMSI SOFTWARE GMBH’ TOTAL LIABILITY TO YOU FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY WILL BE LIMITED TO AMOUNTS PAID TO EMSI SOFTWARE GMBH BY YOU FOR THE SOFTWARE DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. IN NO EVENT WILL EMSI SOFTWARE GMBH BE LIABLE TO YOU FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, BUSINESS, PROFITS OR ABILITY TO EXECUTE) OR FOR the cost of procuring substitute products ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE EXECUTION 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 EMSI SOFTWARE GMBH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. 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.
9. U.S. Government End Users. The Software is a “commercial item” as that term is defined in FAR 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212 and DFARS 227.7202. If the Software is being acquired by or on behalf of the U.S. Government, then, as provided in FAR 12.212 and DFARS 227.7202-1 through 227.7202-4, as applicable, the U.S. Government’s rights in the Software will be only those specified in this Agreement.
10. Export Law. You agree to comply fully with all U.S. and other applicable export laws and regulations to ensure that neither the Software nor any technical data related thereto nor any direct product thereof are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations.
11. Agreement to Arbitrate - U.S Customers
(a) Agreement to Arbitrate: If you are a U.S. resident, you and EMSI SOFTWARE GMBH agree that any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof or the use of the Software (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action”). The exclusive jurisdiction and venue of any IP Protection Action will be the state and federal courts located in the Northern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts. You acknowledge and agree that you and EMSI SOFTWARE GMBH are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and EMSI SOFTWARE GMBH otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this Section 11 will be deemed void. Except as provided in the preceding sentence, this Section 11 will survive any termination of this Agreement. (b) Arbitration Rules: The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this Section 11. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section 11. (c) Arbitration Process: A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_004175 and a separate form for California residents at http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_015822.) The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules. (d) Arbitration Location and Procedure: Unless you and EMSI SOFTWARE GMBH otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and EMSI SOFTWARE GMBH submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration. (e) Arbitrator’s Decision: The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of Section 8 (“Limitation of Liability”) as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. EMSI SOFTWARE GMBH will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration. (f) Fees: Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, EMSI SOFTWARE GMBH will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
12. General. This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to or application of conflict of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply. If you are a U.S. resident, Section 11 applies. If you are a non-U.S. resident, you agree that any claims or actions regarding this Agreement may be brought solely in the state of federal courts located in the Northern District of California, and you waive any right to challenge jurisdiction and venue therein. You may not assign or transfer this Agreement or any rights granted hereunder, by operation of law or otherwise, without EMSI SOFTWARE GMBH’ prior written consent, and any attempt by you to do so, without such consent, will be void. 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. All notices or approvals required or permitted under this Agreement will be in writing and delivered by confirmed facsimile transmission, by overnight delivery service, or by certified mail, and in each instance will be deemed given upon receipt. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by authorized representatives of both parties. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent. If any provision of this Agreement is held to be unenforceable or invalid, that provision will be enforced to the maximum extent possible, and the other provisions will remain in full force and effect. This Agreement is the complete and exclusive understanding and agreement between the parties regarding its subject matter, and supersedes all proposals, understandings or communications between the parties, oral or written, regarding its subject matter, unless you and EMSI SOFTWARE GMBH have executed a separate agreement. Any terms or conditions contained in your purchase order or other purchasing document that are inconsistent with or in addition to the terms and conditions of this Agreement are hereby rejected by EMSI SOFTWARE GMBH and will be deemed null.
12. Contact Information. If you have any questions regarding this Agreement, you may contact EMSI SOFTWARE GMBH at legal@emsi-software-gmbh.org.
EMSI SOFTWARE GMBH Corporation - May, 2014
Exhibit 1 – EMSI SOFTWARE GMBH Home Users
This Exhibit 1 is incorporated into and made part of the EMSI SOFTWARE GMBH Software License Agreement if your Purchase Receipt or applicable purchasing documentation accompanying the Software states that you have purchased a subscription to any of the following EMSI SOFTWARE GMBH products:
EMSI SOFTWARE GMBH EMSISOFT ANTI-MALWARE Premium
1. License Grant. 1. Conditioned upon your compliance with the terms and conditions of this Agreement, EMSI SOFTWARE GMBH grants you a non-exclusive and non-transferable license to Execute the number of copies of the Software for which you have paid solely in executable form on the corresponding number of Computers owned by you, and solely for your personal, non-commercial purposes (i.e., not on Computers used in a business). You may not transfer the Software to a different user, except that once installed onto a Computer, the Software may be operated by any person using the Computer, directly or (where that person is providing support services to you with respect to that Computer) via remote connection; provided that you are responsible for each such person’s operation of the Software and provided that each such Computer is running an authorized copy of the applicable Software. You may transfer the Software to a different Computer if you uninstall and remove the Software from the first Computer when you install it on the other Computer. For avoidance of doubt, you must have a license to the Software for every Computer on which you operate the Software.
2. Restrictions. 2. You may run the Software on a network, provided that you have purchased a license to the Software for each Computer that can access the Software over that network. You may not use the Software, or make the functionality of the Software available to third parties, for any commercial purpose, including, but not limited to, providing any computer repair, help desk or troubleshooting service to any third party. You may not combine this Software with any third party script, application, hardware or tools which would cause it to run on an automated or unattended basis. Except as expressly specified or permitted in this Agreement, you may not: (a) copy (except in the course of loading or installing) or modify the Software, including but not limited to adding new features or otherwise making adaptations that alter the functioning of the Software; (b) transfer, sublicense, lease, lend, rent or otherwise distribute the Software to any third party; or (c) make the functionality of the Software available to any third party through any means, including but not limited to by uploading the Software to a network or file-sharing service or through any hosting, application services provider, service bureau, software-as-a-service (SaaS) or any other type of services. You acknowledge and agree that portions of the Software, including but not limited to the source code and the specific design and structure of individual modules or programs, constitute or contain trade secrets of EMSI SOFTWARE GMBH and its licensors. Accordingly, you agree not to disassemble, decompile or reverse engineer the Software, in whole or in part, or permit or authorize a third party to do so, except to the extent such activities are expressly permitted by law notwithstanding this prohibition.
Exhibit 2 – EMSI SOFTWARE GMBH for Business Users
This Exhibit 2 is incorporated into and made part of the EMSI SOFTWARE GMBH Software License Agreement if your Purchase Receipt or applicable purchasing documentation accompanying the Software states that you have purchased a subscription to any of the following EMSI SOFTWARE GMBH products:
EMSI SOFTWARE GMBH EMSISOFT ANTI-MALWARE Remediation Tool
EMSI SOFTWARE GMBH EMSISOFT ANTI-MALWARE for Business
EMSI SOFTWARE GMBH EMSISOFT ANTI-MALWARE for Business
EMSI SOFTWARE GMBH Endpoint Security
1. License Grant. 1. Conditioned upon your compliance with the terms and conditions of this Agreement, EMSI SOFTWARE GMBH grants you a non-exclusive and non-transferable license to Execute the number of copies of the Software for which you have paid solely in executable form on the corresponding number of Computers owned or used by you, or owned by your employees or contractors and used on your behalf, solely for your internal business purposes. You may not transfer the Software to a different user, except that once installed onto a Computer, the Software may be operated by any person using the Computer, directly or (where that person is providing support services to you with respect to that Computer) via remote connection; provided that you are responsible for each such person’s operation of the Software and provided that each such Computer is running an authorized copy of the applicable Software. You may transfer the Software to a different Computer if you uninstall and remove the Software from the first Computer when you install it on the other Computer. For avoidance of doubt, you must have a license to the Software for every Computer on which you operate the Software.
2. Restrictions. 2. You may run the Software on a network, provided that you have purchased a license to the Software for each Computer that can access the Software over that network. You may not use the Software, or make the functionality of the Software available to third parties, for any commercial purpose, such as for providing any computer repair, help desk or troubleshooting service to any third party. Except as expressly specified or permitted in this Agreement, you may not: (a) copy (except in the course of loading or installing) or modify the Software, including but not limited to adding new features or otherwise making adaptations that alter the functioning of the Software; (b) transfer, sublicense, lease, lend, rent or otherwise distribute the Software to any third party; or (c) make the functionality of the Software available to any third party through any means, including but not limited to by uploading the Software to a network or file-sharing service or through any hosting, application services provider, service bureau, software-as-a-service (SaaS) or any other type of services. You acknowledge and agree that portions of the Software, including but not limited to the source code and the specific design and structure of individual modules or programs, constitute or contain trade secrets of EMSI SOFTWARE GMBH and its licensors. Accordingly, you agree not to disassemble, decompile or reverse engineer the Software, in whole or in part, or permit or authorize a third party to do so, except to the extent such activities are expressly permitted by law notwithstanding this prohibition.
3. Additional Rights and Restrictions. 3. n addition to the above, if your Purchase Receipt or applicable purchasing documentation accompanying the Software states that you have purchased one of the following licenses, then the applicable terms below also apply to you and your use of the Software.
• Education License. If your Purchase Receipt or applicable purchasing documentation accompanying the Software states that you have purchased an Education License, then you agree to use the Software solely for your internal operational purposes and you warrant that you are an Educational Institution. For purposes of this Agreement, “Educational Institution” means any (a) accredited public or private primary, secondary, vocational or corresponding school providing full-time instruction for grades K-12; (b) accredited public or private university or college (including community, junior, scientific, technical or vocational college) that grants degrees requiring not less than the equivalent of two (2) years of full-time study; (c) district, regional and state administrative offices of public institutions meeting the requirements of (a) or (b); (d) administrative entities organized and operated exclusively for the administration of one or more private institutions meeting the requirements of (a) or (b); and(e) other state or local government entities nearly all of whose activities consist of administrative support, of a nature that advances academic learning for public institutions meeting the requirements of (a) or (b).
• Government License. If your Purchase Receipt or applicable purchasing documentation accompanying the Software states that you have purchased a Government License, then you agree to use the Software solely for government use and warrant that you are a Governmental Entity. For purposes of this Agreement, “Governmental Entity” means any supranational, national, state, municipal, local or foreign government, any court, tribunal, arbitrator, mediator, administrative agency, commission or other governmental official, authority or instrumentality, any stock exchange or similar self-regulatory organization or any quasi-governmental or private body exercising any regulatory, taxing or other governmental or quasi-governmental authority.
• Non-Profit License. If your Purchase Receipt or applicable purchasing documentation accompanying the Software states that you have purchased a Non-Profit License, then you agree to use the Software solely for your internal operational purposes and you warrant that you are a Non-Profit Organization. For purposes of this Agreement, “Non-Profit Organization” means an entity that is a Non-Profit institution under U.S. IRS Provision 501(c) or (with respect to any jurisdiction outside of the U.S.) corresponding legislation.
