HID GLOBAL CORPORATION END USER LICENSE AGREEMENT (“EULA”)
(Standard Version v.11112014)
IMPORTANT - READ CAREFULLY: This End User License Agreement (“EULA”) is a legal agreement between you (“Licensee”), either an individual or an entity, and HID Global Corporation. (“HID”) governing the use of the software products and modules (“Software”) that came with this EULA, whether provided on a standalone basis or installed or embedded on hardware products (“Hardware”), and any associated product documentation or other written materials accompanying or provided with the Software (“Documentation”). LICENSEE AGREES TO BE BOUND BY THE TERMS OF THIS EULA BY INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE OR THE HARDWARE ON WHICH IT RESIDES. IF LICENSEE DOES NOT AGREE TO THE TERMS AND CONDITIONS OF THIS EULA, LICENSEE MAY NOT INSTALL, COPY OR USE THE SOFTWARE AND MUST PROMPTLY RETURN THE SOFTWARE AND DOCUMENTATION TO THE PARTY FROM WHOM THE SOFTWARE WAS ACQUIRED.
1. Grant of License. In consideration of payment of the applicable license fee by Licensee to HID or its authorized reseller and subject to Licensee’s compliance with the terms and conditions of this EULA, HID grants Licensee a non-exclusive, non-transferable, non-sublicensable, worldwide right to use the Software solely for Licensee’s business operations. Licensee’s right to use the Software is expressly subject to the limitations in the number of end users, workstations, servers or other such limitations as indicated by the invoice or other purchasing documentation issued by HID or HID’s authorized reseller for the Software and/or Hardware provided to Licensee (“Purchase Documents”). Except as expressly set forth in Section 2(a), only object code, machine-readable versions of the Software are licensed to Licensee hereunder, and Licensee has no rights under this EULA to the source code versions of the Software. Licensee may use, reproduce and internally distribute the Software and the Documentation solely in connection with and as reasonably necessary for Licensee’s authorized use of the Software and for backup and archive purposes; provided, however, that Licensee may not copy any Software that is installed, embedded or otherwise resident in any Hardware products. Subject to the foregoing license grant and terms and conditions of this EULA, Licensee may make the Software and Documentation available to a third party to operate the Software on behalf of Licensee, provided that Licensee shall be fully liable for such third party’s compliance with the terms and conditions of this EULA.
2. Restrictions. The license rights granted in this EULA are subject to the following restrictions: (a) Licensee may not sell, license, sublicense, lend, rent, lease, or otherwise transfer the Software to a third party; provided, however, that if any sample code or application programming interfaces are provided by HID with or as part of the Software (hereunder, “API’s”) for the purpose of enabling interoperability between the Software and an application developed by or for Licensee (“Licensee App”), Licensee may distribute those portions of the API’s that are marked or identified in the Documentation as being redistributable solely as part of a Licensee App.
(b) Licensee may not use the Software for time-sharing, outsourcing, service bureau, or managed service provider purposes, or otherwise make the Software available to third parties for their commercial purposes, unless expressly authorized in writing by HID.
(c) Licensee acknowledges that the Software in source code form remains a confidential trade secret of HID and/or its third party licensors (“Licensors”). Licensee may not reverse engineer, decipher, decompile, modify or disassemble the Software or otherwise attempt to derive the source code of the Software, incorporate the Software in whole or in part in any other software or product, or develop derivative works of the Software or allow others to do so, or to attempt to do any of the foregoing (except and only to the extent the foregoing restrictions are prohibited by applicable law notwithstanding this limitation).
(d) Licensee shall not disclose or publish the results of any performance, functional, or other evaluation or benchmarking of the Software to any third party without the prior written consent of HID.
(e) If the Software or Hardware product uses a volume license key or other method to limit the volume of use of the product, Licensee shall not disable, bypass or otherwise circumvent the operation of such key or method.
(f) For some Software or Hardware products, there are additional product-specific restrictions set forth in the applicable product addendum attached to or referenced in this EULA. In the event of any conflict between the terms of this EULA and the terms of any applicable product addendum, the terms of the product addendum shall be controlling.
3.1 Support. During the term of this EULA and subject to Licensee’s payment of the applicable support fees, HID or HID’s authorized reseller will make technical support and software maintenance available to Licensee on the terms provided in the most recent version of HID’s Support Handbook (“Support”).
3.2 Procurement and Support of System. Licensee is responsible for procuring, installing and maintaining the hardware or software infrastructure, including a suitable operating system environment (collectively the “System”), required for the proper operation of the Software. Licensee acknowledges that updates to the Software provided as part of Support may require modification or upgrades to certain components of the System in order to utilize such updates, and that Licensee is solely responsible for obtaining such software and hardware modification or upgrades from the applicable suppliers or manufacturers.
4. Certification and Audit. Licensee shall use commercially reasonable efforts to implement measures to monitor and ensure all users of the Software comply with the restrictions and limitations of this EULA. At HID’s written request, but not more frequently than once annually during the term of this EULA, Licensee shall certify to HID, in a writing signed by Licensee’s authorized representative, Licensee’s compliance with the terms of this EULA, and provide HID a list of (a) the number of users by country, and (b) the locations and types of the systems on which it operates or has installed the Software. HID reserves the right to audit Licensee’s use of the Software no more than once annually, per Licensee site, at HID’s expense. HID shall schedule any audit at least fifteen (15) days in advance. Any such audit shall be conducted during regular business hours at Licensee’s facilities and shall not unreasonably interfere with Licensee’s business activities. If such audit reveals that Licensee has underpaid fees to HID, Licensee shall promptly pay to HID such fees at the prices previously agreed to for such Software and, if the underpayment is greater than five percent (5%), Licensee shall also reimburse HID for its reasonable costs of the audit.
5. Ownership. The Software is licensed under the terms of this EULA, not sold. HID and/or its Licensors own all title and proprietary rights, including without restriction all intellectual property rights, in and to the Software and Documentation and all copies thereof, all of which contain valuable trade secrets of HID and/or its Licensors. Licensee may not remove, modify or otherwise tamper with any copyright, trademark, proprietary rights notices, labeling, legend, disclaimer or warning notices included in or embedded in any part of the Software or Documentation or in any copy made of the Software or Documentation.
6. Warranty and Disclaimers.
6.1 Limited Warranty. HID warrants that for a period of ninety (90) days from the date the Software is delivered to Licensee (FCA Origin) or downloaded by Licensee, whichever is earlier, that: (a) the media on which the Software is recorded will be free from material defects in materials and workmanship under normal use, and (b) the Software will perform substantially in accordance with the then-current Documentation, provided that such Software is properly used by Licensee in accordance with such Documentation and this EULA. If Licensee discovers within this warranty period that the Software fails to substantially conform to the Documentation, Licensee must promptly notify HID or HID’s authorized reseller in writing and obtain a Return Material Authorization (“RMA”) and a RMA number, prior to return of the defective Software.
6.2 Remedies. HID’s sole and exclusive liability and Licensee’s sole and exclusive remedy under this limited warranty shall be, at HID’s election, either: (a) replacement of the media if defective, or (b) HID’s commercially reasonable effort to repair or replace the Software to make the Software perform substantially in accordance with the accompanying Documentation, if the Software as initially delivered is non-conforming. In the event HID is unable to remedy the non-conformity and such non-conformity materially affects the functionality of the Software, Licensee may promptly terminate the Software license applicable to the non-conforming Software and return such Software and any applicable Documentation to HID or HID’s authorized reseller. In such event, Licensee will receive a refund of the license fee received by HID with respect to such Software. The above remedies are available only if HID or HID’s authorized reseller is promptly notified in writing within the ninety (90) day warranty period. Any replacement Software will be warranted for the remainder of the original warranty period, or for thirty (30) days, whichever is longer.
6.3 Restrictions and Exclusions. HID does not warrant that the Software will meet Licensee’s requirements or will operate in combination with other software or hardware which may be selected for use by Licensee, or that the operation of the Software will be uninterrupted or error-free. This limited warranty is VOID if failure of the Software is due to accident, negligence, abuse, improper installation or misuse of the Software.
6.4 Disclaimers. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE WARRANTIES STATED ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR QUALITY OF SERVICE. NO WARRANTIES SHALL ARISE UNDER THIS EULA FROM COURSE OF DEALING OR USAGE OF TRADE. HID DOES NOT WARRANT THAT THE SOFTWARE OR DOCUMENTATION IS FREE OF THIRD PARTY CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS.
7. Limitation of Liability. HID, ITS LICENSORS, AGENTS, SUPPLIERS, DISTRIBUTORS OR RESELLERS SHALL NOT BE LIABLE WHATSOEVER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS, DATA OR LOSS OF USE, OR PROCUREMENT OF REPLACEMENT SOFTWARE, HOWEVER INCURRED BY THE LICENSEE OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, HID’S LICENSORS DISCLAIM ALL DAMAGES OF ANY KIND. EXCEPT FOR ANY INDEMNIFICATION PROVIDED HEREIN, THE AGGREGATE AND CUMULATIVE LIABILITY OF HID FOR DAMAGES UNDER THIS EULA SHALL NOT EXCEED THE AMOUNT OF THE FEES PAID BY LICENSEE FOR THE SOFTWARE LICENSED UNDER THIS EULA.
8. IP Indemnity.
8.1 Indemnity. HID will defend Licensee from and against any claim brought by a third party against Licensee to the extent such claim alleges that the Software directly infringes any intellectual property rights of such third party (“Claim”), and will pay all costs, damages and expenses (including reasonable legal fees) finally awarded against Licensee by a court of competent jurisdiction or agreed to in a written settlement agreement signed by HID arising out of such Claim; provided that Licensee: (a) gives HID prompt written notice upon learning of a Claim or potential Claim; (b) allows HID to assume sole control of the defense of such Claim and all related settlement negotiations; and (c) reasonably cooperates with HID, at HID’s request and expense, in the defense or settlement of the Claim, including the provision of all assistance, information and authority reasonably requested by HID. Notwithstanding the foregoing, HID shall have no liability for any claim of infringement based in whole or in part on (i) the use of a superseded or altered release of the Software to the extent that the infringement would have been avoided by the use of a current unaltered release of the Software provided by HID or its affiliates to Licensee, (ii) the modification of the Software by anyone other than HID or its authorized agents to the extent that the infringement would have been avoided but for such modification, (iii) the use of the Software other than in accordance with the documentation accompanying the Software or the applicable license agreement, (iv) the combination of the Software with other software or hardware not provided by HID, where the combination causes the infringement and not the Software standing alone, (v) third party software, including open source software, incorporated in the Software, or (vi) product features based on published standards where there was no non-infringing way to implement such standards.
8.2 Additional Remedies. If the Software, or any material portion thereof, is held by a court of competent jurisdiction to infringe, or if HID believes that the Software may be subject to a Claim or held to infringe, HID shall, in its discretion and at its expense (a) replace or modify the Software so as to be non-infringing, provided that the replacement Software provides substantially similar functionality; (b) obtain for Licensee a license to continue using the Software; or (c) if non-infringing product or a license to use the Software cannot be obtained upon commercially reasonable terms, as determined solely by HID, HID may (i) terminate the license for the affected Software (as applicable) and (ii) upon return of the Software by Licensee or certification of its destruction, refund a pro-rated portion of the license fees or other charges paid by Licensee to HID (or its affiliate company) for such Software (for perpetual licenses, as depreciated on a four-year straight-line basis and for term limited licenses, for the unused remainder of the term) and, if applicable, the unused portion of any prepaid support fees that directly relate to such Software.
8.3 Limitation and Exclusive Remedy. The indemnity provided herein states HID’s and its affiliate companies’ entire liability and Licensee’s sole and exclusive remedy for any claim of intellectual property infringement by, or with respect to, the Software.
9. Export. Licensee shall comply fully with all international and national laws and regulations that apply to the Software and Documentation and to Licensee’s use thereof, including, but not limited to the U.S. Export Administration Regulations and end-user, end-use and destination restrictions issued by U.S. and other governments. Without limiting the generality of the foregoing, Licensee expressly agrees that it shall not, and shall cause its representatives to agree not to, export, directly or indirectly, re-export, divert, or transfer the Software or Documentation or any direct product thereof to any destination, company or person restricted or prohibited by U.S. laws or regulations or laws or regulations of any other applicable jurisdiction.
10. Third Party Software Component License Terms. To the extent there are any third party software components licensed to HID by Licensors included in the Software, such components shall be licensed as part of the Software in accordance with the terms and conditions of this EULA. Such Licensors may provide additional rights, requirements and notices (which rights, requirements and notices can be found in a readme file or product addendum or are otherwise distributed with the Software), and nothing herein shall alter or limit any such additional rights, requirements or notices provided to Licensee by such Licensors.
11. U.S. Government Restricted Rights. The Software is provided with "Restricted Rights". Use, duplication or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights at 48 CFR 52.227-19, as applicable (and the successor clauses to any of the foregoing). The contractor/manufacturer is HID Global Corporation. All Software provided to the U.S. Government, including its civilian and military agencies, is commercial computer software that was developed at private expense prior to its provision to any U.S. Government entity. Subject to any applicable regulations set out in the FAR or DFARS (and any superseding regulations), the Software is provided with the commercial license rights and restrictions described elsewhere in this EULA. For Department of Defense agencies, the restrictions set forth in the "Technical Data - Commercial items" clause at DFARS 252.227-7015 (Nov 1995) shall also apply.
12. Term and Termination of License. The term applicable to Licensee’s use of the Software shall be perpetual unless indicated otherwise in the Purchase Documents. HID reserves the right to terminate this EULA and Licensee’s corresponding right to use the Software in the event Licensee breaches a material obligation under this EULA and fails to cure such breach within thirty (30) days after HID sends written notice describing the breach if such breach is capable of being cured, or immediately if the breach is not capable of being cured. Upon any termination of this EULA, or if Licensee should discontinue using the Software or give up personal use and control of the computers or other hardware on which the Software is installed, Licensee shall destroy all copies of the Software, Documentation, and any related materials in any form. The parties’ rights and obligations under Sections 2, 4, 5, 6.4, and 7 through 13 shall survive any termination of this EULA.
13. General. This EULA, together with the Purchase Documents and any attached and/or referenced addenda, exhibits and schedules, constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this EULA. This EULA may not be modified or amended, except in writing signed by the duly authorized representatives of Licensee and HID. No other act, document (including Licensee’s purchase order or other Licensee document), usage or custom shall be deemed to amend or modify this EULA. If any of these provisions are held to be unenforceable in any jurisdiction for any reason, such provision shall be reformed only to the extent necessary to make it enforceable, and such decision shall not affect the enforceability (a) of such provision under other circumstances or jurisdictions, or (b) of the remaining provisions hereof under all circumstances or jurisdictions. These terms and conditions, and interpretation thereof, will be governed by the laws of the United States and the laws of the State of Texas, without regard to conflicts of laws principles. In the event that any legal action becomes necessary to enforce or interpret the terms of this Agreement, the parties agree that such action will be brought in the State or Federal Courts located in Travis County, Texas, and no other place. These terms and conditions, the separate software license agreement, and Licensee’s use will not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is hereby expressly excluded.