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
A. 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.
B. 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.
C. 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.
D. 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.
E. 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.
F. 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.
G. 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
A. For purposes of this License, the following definitions shall apply:
- Server Software is a copy of Software residing on a server or multiple
servers.
- Clients are personal computers, minicomputers, mainframes, workstations
and terminal devices that interact with Server Software.
- Client Software is a copy of Software residing on a Client that interacts
with Server Software.
- CPU is a central processing unit. A central processing unit can exist
as a single instance or in multiple instances within a server.
B. End User agrees to license the Software as follows:
- For Client Software - one copy of Client Software for each Client
that accesses any Server Software.
- For Server Software - one copy of Server Software for each server.
- 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.
C. 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.