License Agreement

READ CAREFULLY BEFORE INSTALLING. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, OR THE TERMS AND CONDITIONS IN YOUR SOFTWARE LICENSE AGREEMENT WITH FileNET, DO NOT INSTALL THE SOFTWARE. BY INSTALLING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS LICENSE.

1 Authorization of End User

  1. Each Software product, including any documentation relating to or describing such Software, such as, but not limited to, logic manuals, flow charts and improvements or updates provided by FileNET (collectively called "Software"), is furnished to End User under a personal, non-exclusive, nontransferable license solely for End User's own internal use in compliance with this License and all applicable laws and regulations. End User agrees that this License does not permit End User to: (1) use the Software for a service bureau application or (2) transfer the Software without prior written consent from FileNET.
  2. End User may make one copy of the Software, (with the proper inclusion of FileNET's copyright notice and any other proprietary notice and/or trademarks on such Software), for End User's own backup purposes; however, the End User may not otherwise copy or reproduce the Software except to install the Software on a single hard drive for use by End User in accordance with this License.
  3. If End User is unable to operate the Software on the computer equipment due to an equipment malfunction, the Software may be transferred temporarily to other computer equipment during the period of equipment malfunction.
  4. Title to and ownership of the Software and all of its parts (or any modifications, translations, or derivatives thereof, even if unauthorized) and all applicable rights in patents, copyrights and trade secrets in the Software shall remain exclusively with FileNET and its licensors. Software provided hereunder is valuable, proprietary, and unique, and End User agrees to be bound by and observe the proprietary nature thereof as provided herein. End User agrees to take diligent action to fulfill its obligations hereunder by instruction or agreement with its employees or agents (whose confidentiality obligations shall survive termination of employment or agency) who are permitted access to the licensed Software. Access shall only be given on a need-to-know basis. Except as set forth herein or as may be permitted in writing by FileNET, End User shall not use, provide or otherwise make available the Software or any part or copies thereof to any third party. Unless prohibited by law, End User shall not reverse engineer, decompile or disassemble the Software or any portion thereof, nor otherwise attempt to create or derive the source code. End User acknowledges that unauthorized reproduction, use, or disclosure of the Software or any part thereof is likely to cause irreparable injury to FileNET, who shall therefore be entitled to injunctive relief to enforce these restrictions, in addition to any other remedies available at law or in equity.
  5. FileNET agrees that affiliates of End User may use the Software; provided that prior to any affiliate's use of the Software: (1) each affiliate shall sign and deliver to FileNET a mutually agreeable appendix to this License certifying its License to be bound by the terms herein; and (2) such use by such affiliate shall be subject to the following: (i) End User accepts responsibility for the acts or omissions of such affiliates as if they were End User's acts or omissions; (ii) End User shall indemnify FileNET against losses or damages suffered by FileNET arising from breach of this License by any such affiliate as if effected by End User; and (iii) such use shall not constitute an unauthorized exportation of the Software or documentation under U.S. Government laws and regulations.
  6. FileNET shall defend any action, suit or proceeding brought against End User so far as it is based on a claim that the use of any Software delivered hereunder constitutes an infringement of any patent, copyright or other intellectual property right, provided that FileNET is promptly notified by End User of the action and given full authority, information and assistance for the defense of the action. FileNET shall pay all damages and costs finally awarded against End User, but shall not be responsible for any compromise made without its consent. FileNET may at any time it is concerned over the possibility of such an infringement, at its option and expense, replace or modify the Software so that infringement will not exist, or request the End User to remove the Software involved and refund to End User an amount as established by FileNET.
  7. FileNET shall have no liability to End User under any provisions of this Section, if any claim is based upon the use of the Software in combination with software not supplied by FileNET, or in a manner for which the Software was not designed, or if the claim of infringement would have been avoided but for End User's use of Software other than the latest unmodified release made available to End User.

2 Types of Software Licenses

  1. For purposes of this License, the following definitions shall apply:
    1. Server Software is a copy of Software residing on a server or multiple servers.
    2. Clients are personal computers, minicomputers, mainframes, workstations and terminal devices that interact with Server Software.
    3. Client Software is a copy of Software residing on a Client that interacts with Server Software.
    4. CPU is a central processing unit. A central processing unit can exist as a single instance or in multiple instances within a server.
  2. End User agrees to license the Software as follows:
    1. For Client Software - one copy of Client Software for each Client that accesses any Server Software.
    2. For Server Software - one copy of Server Software for each server.
    3. For CPU Software - one copy of Software for each CPU on a server containing FileNET Server Software. CPU licenses are categorized by performance as outlined in FileNET's CPU Classification Guideline. FileNET will not limit Enduser to a specific number of concurrent users under this licensing agreement. The number of CPU's deployed will be used as a means of calculating the overall system license price. Individual FileNET Systems cannot mix CPU Software licenses and FileNET's other Software pricing model, Concurrent User Licenses.
  3. FileNET may audit the End User's Software usage remotely or on-site during service calls or upon reasonable notice during standard business hours. The audit shall determine Software usage by server for the number of concurrent Dedicated, Shared and/or eBusiness User Licenses required for each server. Should an audit determine that Customer's usage has exceeded the number of Concurrent User Licenses, or that End User's deployment of Software on Clients exceeds the contracted ratio of Clients to Concurrent User Licenses, End User agrees to purchase additional licenses in compliance with this Software Schedule. For a server with a combination of concurrent Dedicated, Shared and/or eBusiness User Licenses, any use beyond the total aggregate number of all Concurrent User Licenses (including previously acquired SLU type licenses) will require additional Concurrent User Licenses to be purchased. The highest ratio Concurrent User License identified on the End User's configuration and its applicable fee will be invoiced accordingly.

3 Termination

Notwithstanding the foregoing, FileNET shall have the right to terminate End User's authorization to use the Software if End User fails to comply with the terms and conditions of the License. Upon notice of such termination, End User shall immediately destroy the Software and all portions and copies thereof and, if requested by FileNET, shall certify in writing as to the destruction of the same.

4 Disclaimer and Limited Warranty

FileNET warrants the media on which the Software is furnished to be free from defects in materials and workmanship for a period of ninety (90) days from the date of purchase.

FileNET's entire liability and End User's exclusive remedy as to media shall be at FileNET's option, either the return of the amount paid for the Software or replacement of the media that does not meet FileNET's limited warranty and which is returned to FileNET with a copy of the receipt.

EXCEPT AS EXPRESSLY PROVIDED ABOVE, THE SOFTWARE AND DOCUMENTATION ARE PROVIDED "AS IS", FILENET DOES NOT MAKE ANY AND HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

The entire risk as to the quality, accuracy and performance of the Software and the Documentation is with End User. FileNET does not warrant that the functions contained in the Software will meet End User's requirements or that the operation of the Software will be uninterrupted or error free.

FILENET SHALL NOT BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING DAMAGES FROM LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, PROCUREMENT OF SUBSTITUTE GOODS OR TECHNOLOGY, AND THE LIKE) ARISING OUT OF THIS LICENSE OR THE USE OF OR INABILITY TO USE THE SOFTWARE EVEN IF FILENET HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

5 Permitted Uses

This Software and the Documentation are licensed to you, the End User, and may not be transferred to or used by any third party for any length of time without the written consent of FileNET. You may not modify, adapt, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Software or the written materials. Interface information necessary to achieve interoperability is available from FileNET on written request and payment of FileNET's then current fee.

6 Government Restricted Rights

The Software is commercial software and the Software and Documentation are provided with Restricted Rights. Use, duplication or disclosure by the Government is subject to restrictions as set forth in paragraph (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 CRF 52.007-19, as applicable. Contractor/Manufacturer is FileNET Corporation, 3565 Harbor Blvd., Costa Mesa, California 92626.

7 Export

Regardless of any disclosure made by the End User or licensee to FileNET of the ultimate destination of the Software, End User shall not export or re-export, whether directly or indirectly, the Software to anyone outside the United States of America without first obtaining an export license from the United States Department of Commerce or any other agency or department of the United States Government as required.

8 Miscellaneous

This License is governed by the laws of California, without regard to its conflicts of laws, provisions, or the United Nations Convention on the International Sale of Goods and will be deemed a contract under seal. If any provision of this License 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 License will remain in full force and effect. This License is not assignable or transferable by End User without prior written consent of FileNET; any attempt to do so shall be void. Any notice, approval or consent required hereunder shall be in writing. The parties agree that a material breach of this License by End User would cause irreparable injury to FileNET for which monetary damages would not be an adequate remedy and that FileNET shall be entitled to equitable relief in addition to any other remedies it may have hereunder or at law. Section 4 shall survive any termination of this License.