(On-Premise Software)
This Software Addendum (this “Software Addendum”) supplements and is hereby made a part of those certain Aegis General Terms and Conditions executed by Aegis Industrial Software Corporation (“Aegis”) and Customer (the “GTCs”) to which this Software Addendum is incorporated by reference. This Software Addendum applies to any Software under the Agreement. Capitalized terms used in this Software Addendum without definition have the same meanings ascribed to them in the GTCs.
1. ADDITIONAL DEFINITIONS APPLICABLE TO THIS ADDENDUM.
1.1 “Active User” means a single user running a single instance of licensed Software on a single device.
1.2 “Compliance Monitoring” means the monitoring of Customer’s and third-parties’ compliance with any license and usage restrictions for Aegis’s Software by legally permissible means, which may be effectuated by a security mechanism included in the Software. The Compliance Monitoring may include the detection, collection, transmission and processing of data and personal data by Aegis, including but not limited to IP addresses, email domain and wi-fi geolocation.
1.3 “Delivery” means the date of on which Aegis makes available the digital license activation code for the applicable Software.
1.4 “Documentation” means the then-current technical and functional documentation provided by Aegis to Customer for the Software, including, but not limited to, the technical documentation, program specifications, and operations manual. Copies of such technical and functional documentation will be available in the Support Portal (or if Customer is not entitled to access the Support Portal, as provided by Aegis to Customer at the time of signing the applicable Transaction Document for such Software), which technical and functional documentation may be updated, amended, and modified by Aegis from time to time.
1.5 “Excess Usage” means that Customer’s use of the Software exceeds the applicable license metrics set forth for such Software in the applicable Transaction Document.
1.6 “Hot Fix” means unreleased Software which has not been processed through a full quality assurance cycle and which is designed to Correct a specific defect or defects in the Software.
1.7 “Named User” means a single unique individual person that is designated as a “named user” that runs a single instance of the applicable licensed Software on single device.
1.8 "Per Concurrent Active User” means a license for Software that is limited to the number of Active Users specified for such Software in an applicable Transaction Document for such Software.
1.9 “Per Named User” means a license for Software that is limited to the number of Named Users specified for such Software in an applicable Transaction Document for such Software.
1.10 “Pre-Production Release” means Software which has not completed Aegis’s formal release requirements and includes, but is not limited to, beta software, and any Hot Fixes.
1.11 “Software Term” means the initial term and any subsequent renewal term(s) for the Software, as set forth in the applicable Transaction Document.
1.12 “Trial Software” means Software that has been licensed to Customer for the purposes of evaluation or otherwise free of charge.
1.13 “Use” means utilization of the Software by copying, transmitting, or loading the same into the temporary memory (RAM) or installing into the permanent memory (e.g. hard disk, DVD ROM or other storage device) of Customer’s hardware for the processing of the system instructions or statements contained in such Software, subject to any further limitations set forth in any Transaction Document.
1.14 “Updates” means any upgrades, updates, enhancements, improvements, or modifications to the Software generally made available by Aegis as part of any Support Services but does not include any new version of the Software that may be separately offered by Aegis.
2. LICENSE OF SOFTWARE.
2.1 License of Software. From time to time, Customer may license Software by executing a Transaction Document with Aegis. Any additional Software licensed by Customer will be at the then-current price. Aegis will provide the Software in accordance with the Agreement (including the GTCs, this Software Addendum, and the applicable Transaction Document).
2.2 Installation of Software. Except as otherwise stated in an applicable Transaction Document, Customer will be responsible for installing the Software on Customer’s information technology devices (e.g., hard disks and processing units) at Customer’s designated locations in accordance with any installation restrictions set forth in the applicable Transaction Document.
2.3 IT Infrastructure or Third-Party Software and OS Installations. Aegis will have no obligation to Customer to install server operating systems, MS SQL Server, IIS, client operating systems, service packs, Third-Party Products, or any other non-Aegis products.
2.4 Updates for Software. Customer will not be entitled to receive Updates for Software unless Customer is entitled to receive Support Services as set forth in the Support Addendum. If Aegis releases any Updates to the Software (including, but not limited to, any error corrections or patches), then Customer shall install such Updates as soon as reasonably practicable.
2.5 License Metrics.
(a) Per Named User Basis. If Software is licensed on a Per Named User basis, then Customer’s license for such Software will be limited to the number of Named Users seats licensed by Customer pursuant to a Transaction Document. Customer must register each Named User by submitting the registration information into the entitlement portal in such Software. Customer may change a registered Named User to a different unique individual through the entitlement portal in such Software. Each Named User will only be permitted to utilize such Software in a single instance on a single device. If a Named User requires multiple instances or to use the Software on multiple devices, then additional Per Named User license seats will be required. No users other than Named Users will be permitted to utilize the Software.
(b) Per Concurrent Active User Basis. If Software is licensed on a Per Concurrent Active User basis, then Customer’s license for such Software will be limited to the number of Active User seats licensed by Customer pursuant to a Transaction Document. At no time will the number of Active Users concurrently using the Software at any point in time exceed the total number of Per Concurrent Active User license seats. If an Active User utilizes software on more than a single instance or more than a single device, then such Active User will be treated as multiple Active Users for each instance and device on which such Active User is utilizing the Software.
3. LICENSE RIGHTS.
3.1 Grant of License. In consideration of full payment of the fees for the Software and subject to Customer’s compliance with its obligations under the Agreement, Aegis grants to Customer a personal, non-transferable, non-exclusive, non-sublicensable, limited license to Use the Software described in the Transaction Document for the Software Term and in accordance with the license model identified in such Transaction Document and subject to any restrictions set forth for such Software (including any Transaction Documents or this Software Addendum). The Software may only be used for purposes of Customer’s ordinary internal business purposes .
3.2 License Term.
(a) Perpetual License. If a Transaction Document states that the Software Term for Software license is “perpetual”, then Customer’s license for such Software as set forth in Section 3.1 above shall continue for as long as Customer continues to comply with all of its obligations under the Agreement (including, but not limited to, compliance with all usage and license restrictions for such Software).
(b) Specified License Term. If a Transaction Document states a specified term for the Software Term for a Software license, then Customer’s license for such Software as set forth in Section 3.1 above shall continue during such specified term while Customer continues to comply with all of its obligations under the Agreement (including, but not limited to, compliance with all usage and license restrictions for such Software).
3.3 No Third Party Usage. Customer shall not permit any third parties to access or use the Software without Aegis’s prior written consent and Customer shall be liable for any third-party usage, whether or not such usage has been authorized.
3.4 License Restrictions.
(a) Copy Restrictions. Copyright laws and international treaties protect the Software, including the Documentation. Unauthorized copying of the Software, the Documentation or any part thereof, is expressly prohibited. Customer shall reproduce all titles, trademarks, and copyright and restricted rights notices in all copies of the Software.
(b) Use Restrictions. The Agreement only gives Customer some rights to use the Software as expressly permitted in the Agreement and Aegis and its licensors reserve all other rights. Customer does not acquire any rights, express or implied, other than those expressly granted in the Agreement. Unless applicable Law gives Customer more rights despite this limitation, Customer may use the Software only as expressly permitted in the Agreement. In doing so, Customer agrees that it will comply with any technical limitations in the Software that only allow Customer to use the Software in certain ways. Customer agrees that it will not, nor will Customer permit others to:
(i) reverse engineer, reproduce, decompile, recompile, disassemble, merge, modify, adapt or translate the Software or Documentation or any component thereof, or create derivative works based on the Software or Documentation, except and only to the extent that (a) applicable Law expressly permits, despite this limitation, (b) Aegis gives it prior written consent, or (c) the Documentation accompanying the Software expressly permits;
(ii) incorporate the Software into any other software program not provided by Aegis, except (a) for incorporation of such Software with application program interfaces that Aegis makes publicly available for such Software or (b) to the extent permitted to customize the Software in accordance with the accompanying Documentation;
(iii) remove, obliterate, destroy, minimize, block or modify any logos, trademarks, copyright, digital watermarks, or other notices of Aegis or its licensors that are included in the Software, except as may be permitted when using application program interfaces that Aegis makes publicly available for such Software;
(iv) work around (or attempt to work around) any design limitations in the Software;
(v) make more copies of the Software or Documentation than as allowed in the Agreement or by applicable Law, despite this limitation;
(vi) publish (or otherwise make available) the Software, including any application programming interfaces included in the Software, or any programs or materials resulting from the Software (excluding Customer Content), for others to copy;
(vii) transfer, sublicense, rent, lease, sell, lend, distribute, outsource, permit timesharing or service bureau use of, commercially exploit, make available, or assign the Software or any part thereof to any other person or entity (except as expressly permitted by the Agreement);
(viii) transfer the Software to another location or to other equipment without the prior written consent of Aegis (except as otherwise expressly permitted pursuant to the Agreement);
(ix) use the Software to store or transmit infringing, libelous, or otherwise unlawful or tortious material (or to store or transmit material in violation of Law or third-party privacy rights);
(x) use the Software in a way intended to avoid incurring fees or exceed usage limitations; or
(xi) use the Software to build or support, directly or indirectly, products or services competitive to the Software or any other products or services of Aegis; or
(xii) perform any benchmark testing or any of the following security testing of the Software without Aegis’s prior written consent.
(c) Return or Destruction of Software. Upon termination or expiration of the Software Term, Customer shall, at Aegis’s discretion, destroy or return to Aegis the Software (regardless of the media or device upon which such Software is fixed) and any related software install kits, licenses, or licensing management software. In addition to any other remedies available to Aegis, if Customer files for bankruptcy, becomes insolvent, or makes an assignment or novation for the benefit of creditors, then Customer automatically and without further action grants to Aegis the right to require Customer to return or destroy the Software.
(d) Database Access Limitation. Customer agrees that no direct queries (read or write) are to be made to an Aegis production database or Software, except through the Software. Unauthorized reading or writing can potentially result in performance degradation, data corruption, data loss, and damage to or complete loss of functionality of the Software. Aegis shall have no responsibility or obligation to repair or replace any Customer Content or other data, files, or Customer systems damaged as a result of Customer’s breach of this Section 3.4(d).
4. RECORD KEEPING, AUDITS, AND COMPLIANCE CERTIFICATES.
4.1 Record Keeping. During the Software Term and for a period of two (2) years thereafter, Customer shall maintain complete and accurate records documenting the location and use of the Software in a manner sufficient to permit Aegis to conduct an audit in accordance with Section 4.2 of this Software Addendum.
4.2 Audit Right. During the Software Term and for a period of two (2) years thereafter, Aegis shall be permitted to audit and/or shall be permitted to have its designee audit (at least once annually and in accordance with Aegis’s standard procedures, which may include on-site and/or remote audits of facilities, systems, records, and personnel) the usage of the Software and Customer’s compliance with the Agreement. Aegis will conduct any such audit during regular business hours. Customer shall cooperate reasonably in the conduct of such audits. Any reasonable and actual costs incurred by Aegis for such audit shall be paid by Customer if the audit results indicate usage in excess of the licensed quantities or levels by at least five percent (5%), underpayment of any fees by at least five percent (5%), or breach of the Agreement.
4.3 Compliance Certificate. Within thirty (30) days of receipt of Aegis’s written request, Customer shall provide Aegis with a signed certification of compliance with the Software licensing conditions; provided, however, that Aegis shall not request more than one compliance certificate annually.
4.4 Excess Use. If Customer’s use of any Software exceeds the permitted usage metrics, then Customer will be subject to additional fees for such excess usage at Aegis’s then-current rates. Customer will execute an additional Transaction Document (or amendment to a current Transaction Document) for such additional usage and the fees for such additional usage will accrue from the date the excess usage began (together with an interest rate of one and one-half percent (1.5%) per month or partial month from the date such excess usage began until payment). The assessment of additional fees shall be without prejudice to Aegis’s other rights and remedies with respect to such excess usage.
5. LICENSE COMPLIANCE TECHNOLOGY AND MONITORING.
5.1 Aegis may conduct Compliance Monitoring and Customer consents to such Compliance Monitoring. Aegis reserves the right to use a hardware lock device, license administration software, and/or a license authorization key to control access to the Software. Customer may not take any steps to avoid or defeat the purpose of any such measures. Use of any Software without any required lock device or authorization key provided by Aegis is prohibited. For the avoidance of doubt, Customer shall be solely responsible for its failure to comply with any license and usage restrictions for Aegis’s software products.
5.2 Aegis may require that Customer utilize a physical hardware dongle in order to access certain Software, which hardware dongle will serve as license control technology to validate Customer’s license for such Software. Aegis will not replace any lost, stolen, damaged, or destroyed hardware dongle(s) without return of the original, properly serialized hardware dongle(s). Any electronically inoperative hardware dongle(s) will be replaced by Aegis at no charge up to one (1) year from the initial Delivery of the applicable Software but Customer must return the defective hardware dongle. After such one (1) year period, Customer will be charged Two Hundred United States Dollars ($200) for replacement of each hardware dongle. Customer will not be entitled to receive a new hardware dongle if Customer is late or otherwise delinquent in any of its payment obligations to Aegis.
6. GOVERNMENT CONTRACTS.
If the Software is licensed for use in the performance of a U.S. Government prime contract or subcontract, Customer agrees that, consistent with FAR 12.211 and 12.212, commercial computer software, computer software documentation and technical data for commercial items are licensed under Aegis’s standard commercial license. The Software was developed at private expense and is licensed as “commercial computer software” as defined under FAR 2.101.
7. SUPPORT SERVICES.
Aegis will not offer any Support Services for Software except where expressly set forth in a Transaction Document or where such Support Services are available to Customer based on Customer’s license model as set forth in the Support Addendum.
8. DISCLAIMERS OF WARRANTIES.
8.1 No Software Warranty. Aegis provides to Customer the Software strictly on an “as-is” basis and disclaims all warranties, express or implied, for such Software. If Customer is entitled to receive Support Services, Aegis will provide to Customer the Support Services for any Software issues as set forth in the Support Addendum.
8.2 Pre-Production Releases and Trial Software. As an accommodation to Customer, Aegis may provide Customer from time to time a Pre-Production Release of the Software or Trial Software. All such Pre-Production Releases and Trial Software are provided strictly on an “as-is”basis and for internal, non-commercial purposes. Aegis disclaims all warranties, express or implied, for all Pre-Production Releases and Trial Software (including the warranty set forth in Section 7.1 above) and Aegis’s indemnity obligations will not apply to Pre-Production Releases or Trial Software. If Aegis provides Customer with Trial Software, Customer may only use such Trial Software for the period set forth in the applicable Transaction Document and must delete such Trial Software following such period (and such license to use the Trial Software shall cease).
8.3 DISCLAIMER OF ALL OTHER WARRANTIES. FOR THE AVOIDANCE OF DOUBT, THE DISCLAIMER OF WARRANTIES SET FORTH IN SECTION 7 (DISCLAIMER OF WARRANTIES) OF THE GTCS IS INCORPORATED INTO THIS SOFTWARE ADDENDUM BY REFERENCE.