Network Subscription Software End User License Agreement

Palisade Company, LLC

Network Subscription Software End User License Agreement ("Agreement")

THIS IS A CONTRACT. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE PURCHASING, DOWNLOADING, INSTALLING, OR USING THE SOFTWARE. BY PURCHASING, DOWNLOADING, INSTALLING, OR USING THE SOFTWARE, YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT USE THE SOFTWARE. IF APPLICABLE, RETURN THE SOFTWARE AND ALL COMPONENTS OF THIS PRODUCT FOR A REFUND IN ACCORDANCE WITH SECTION 15 (REFUNDS).

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1. DEFINITIONS.

Palisade” means Palisade Company, LLC, having its headquarters at 130 East Seneca Street, Suite 505, Ithaca, NY 14850 USA or any of its worldwide subsidiaries.
Server Software” means the server version of the @RISK or DecisionTools Suite software programs, any documentation Palisade makes available with them (and updates to it), and updates and upgrades to the Server Software at any time.
Client Software” means the client version of the @RISK or DecisionTools Suite software programs, which access the Server Software, any documentation Palisade makes available with them (and updates to it), and updates and upgrades to the Client Software at any time.
Software” means collectively the Server Software and Client Software.
Activation ID” means the alphanumeric code provided with the Software to unlock full functionality and assign the Server Software license to a particular server.
Subscription Period” means the period during which you are permitted to install, use and operate the Software, and during which you will receive Support Services, as further described in Section 14 (SUBSCRIPTION PERIOD; TERMINATION).
Support Services” means technical support services and the provision of upgrades or updates for the original Software as defined in Section 11 (SOFTWARE SUPPORT SERVICES).
You” or “you” means the individual or legal entity acquiring the Software. For clarity, You does not include any other individuals or legal entities, including any of your affiliates.

2. LICENSE SCOPE.

During the applicable access period and subject to your compliance with the terms and conditions of this Agreement, Palisade hereby grants to you a limited, non-exclusive, non-transferable (except as expressly permitted in Section 7 (TRANSFER TO A THIRD PARTY), non-sublicensable right and license to install, use and operate the Software in compliance with the documentation provided by Palisade (including the User Guide documentation), in compliance with all applicable laws and regulations and as specified herein in executable, machine-readable, object code form only and only on devices owned or controlled by you. These license terms permit installation and use of one copy of the Server Software on one server or device, along with other rights, as described below. Before you use the Server Software under a license, you must assign that license to one device. That device is the “licensed device.” Each hardware partition or blade is considered to be a separate device. You may install and use one copy of the Server Software on the licensed device. The components of the Server Software are licensed as a single unit. You may not separate the components and install them on different devices.

The Software is licensed, not sold. This Agreement only grants you some limited rights to use the Software. Palisade reserves all ownership, intellectual property, copyright, and other rights not expressly granted to you under this Agreement. You may use the Software only as expressly permitted in this Agreement. In doing so, you must comply with any technical limitations in the Software. You may not: work around any technical limitations in the Software; reverse engineer, decompile, disassemble or otherwise attempt to access or derive the source code or architectural framework of the Software; make more copies of the Software than specified in this Agreement; modify, translate, adapt or create derivative works based upon the Software; publish or display the Software; use the Software in any way that is against the law; sell, rent, lend, lease, sublicense or distribute the Software to any third party; or use the Software for commercial hosting services. You may not set up the Software in any manner that would enable more users to access or use the Software than have been purchased, whether simultaneously or in series, including, but not limited to, setting up the Software for remote access or connecting the Software to a web portal, batch processing gateway or other similar means for feeding data to the Software.

These license terms permit installation of the Client Software on an unlimited number of computers or devices. Usage of the Client Software is limited to the number of concurrent or simultaneous users for whom Client Software licenses have been purchased. Each Client Software license permits one user or device to access or use the Server Software at a time. You must separately purchase Client licenses for each individual user or device that accesses or uses the Server Software at the same time. The Client Software may be installed on more computers than Client licenses have been purchased; the restriction is on the number of users or devices that can access the Server Software simultaneously.

Client Software may be used on a device disconnected from the Server Software by using the Server Software’s “borrowing” feature. A Client license may be borrowed for off-network use by a single user on a single device for a temporary time period that you specify. When a Client license is borrowed, it is not available for use on any other device or by any other user.

3. SOFTWARE ACTIVATION.

Activation associates the use of the Server Software with a specific device. During activation, the Server Software will send information about the Server Software and the licensed device to Palisade. This information includes the Activation ID and information derived from the hardware configuration but does not include any personally identifiable information about any user. BY INSTALLING THE SOFTWARE, YOU CONSENT TO THE TRANSMISSION OF THIS INFORMATION TO PALISADE AND USE OF SUCH INFORMATION BY PALISADE FOR ACTIVATION PURPOSES. Palisade does not use this information to identify or contact you. After the time allotted for activation expires, your rights to use the Software will be limited until the Server Software is activated. This is to prevent unlicensed use. You can activate the Server Software by Internet (which may happen automatically upon installation if you have a live Internet connection during installation) or e-mail. Some changes to your computer components or to the Software may require you to reactivate the Server Software. The Server Software will remind you to activate until you do. The Client Software does not require activation.

4. VALIDATION.

The Server Software may from time to time update the validation feature of the Software. Validation verifies that the Server Software has been activated and is properly licensed. During a validation check, the Server Software will send information about the Server Software to Palisade. This information includes the Software activation ID. Palisade does not use this information to identify or contact you. BY INSTALLING THE SOFTWARE, YOU CONSENT TO THE TRANSMISSION OF THIS INFORMATION TO PALISADE AND USE OF SUCH INFORMATION BY PALISADE FOR VALIDATION PURPOSES. If the Server Software is not properly licensed, the functionality of the Software may be affected.

The Software may create and store a log of technical details concerning installation and use of the Software, including, but not limited to, technical information about the licensed device on which the Software is installed or used, the number of users accessing the Software and the time and date of each use. The information stored in the log file does not include any personally identifiable information about any user. You may not alter the log file in any way, and you agree to provide Palisade with prompt access to the log file upon request by Palisade.

5. BACKUP COPY.

You may make one copy of the Server Software solely for backup purposes. You must reproduce and include the copyright and other proprietary notices on the backup copy.

6. REASSIGN TO ANOTHER DEVICE.

You may reassign the Server Software license to a different licensed device any number of times, but not more than one time every 90 days. To reassign the Server Software, you must first deactivate the Server Software on the first licensed device so that it is no longer functional. If you reassign the Server Software, the new device becomes the “licensed device.” If you retire the licensed device due to hardware failure, you may reassign the license sooner.

7. TRANSFER TO A THIRD PARTY.

To transfer this Software license and this Agreement to a third party, the first user must deactivate and uninstall the Server Software and uninstall all Client Software before transferring it separately from the device. The first user may not retain any copies of either the Server Software or the Client Software. Before any permitted use of the Software, the other party must agree that this Agreement applies to the transfer and use of the Software. The transfer must include any backup copy of the Software and/or physical documentation. If the Software is an upgrade, any transfer must also include all prior versions of the Software. You may not transfer the licenses for Server Software or Client Software independently of each other to a third party; the Server Software and all Client Software installations and licenses must be transferred as a single unit.

8. TRIAL AND CONVERSION.

The Software may be licensed on a trial basis. Your rights to use the Software on a trial basis are limited to the trial period as indicated at www.palisade.com/trials or in an email from a Palisade representative. You may have the option to convert trial rights to subscription for a Subscription Period, and such options may be presented upon expiration of the trial period. After expiration of any trial period without conversion, the trial Software will stop functioning and licensing rights will end. During the trial period you do not receive Support Services.

9. DOCUMENTATION.

The electronic documentation included with the Software, including the User Guide, may be copied and used for internal purposes only. You must replicate all copyright and other proprietary notices on the documentation if you copy it. You may not sell, rent, lend, provide, sublicense or distribute the Software documentation, either electronic or physical, to third parties.

10. ACADEMIC EDITION SOFTWARE.

You must be a qualified academic user (as defined at www.palisade.com/academic) to purchase and use Student, Academic, and Course License editions of the Software.

11. SOFTWARE SUPPORT SERVICES.

During the Subscription Period, you are entitled to Software updates and upgrades to the original Software you licensed under this Agreement and technical support services, provided the Software is used in compliance with this Agreement. Software updates and upgrades and technical support services are for your use only and not for distribution to or use by others. If the Software is used in breach of this Agreement, you will not be permitted to receive Support Services and Palisade may withhold delivery of updates or upgrades.

Except for the DecisionTools Suite Student Version (as described at www.palisade.com/academic), technical support is available for the Software in the form of live support via telephone, e-mail, or web portal during Palisade technical support operating hours (as described at www.palisade.com/support). Technical support is not available at your physical site. Self-serve support in the form of searchable knowledge base articles, forums, and other resources is available 24 hours per day, 7 days per week at www.palisade.com/support. Technical support is limited to: assistance with Software and Software update and upgrade installation, activation, transfers, error messages, bugs, or operational problems. Technical support is limited to the computing environments (such as versions of Windows and Excel) and Software versions listed at www.palisade.com/support. Upgrades provided under the Support Services are limited to version number upgrades to the same product and same edition only (e.g. @RISK Professional 1.0 to @RISK Professional 2.0). Support Services do not include: auditing and de-bugging of models; complete installation services; Software training; consulting or model building; automation or customization of models; hardware troubleshooting or diagnosis; or any other services not specified above. Upgrades under Support Services do not include new software products, different software products (e.g. you may not upgrade from @RISK to DecisionTools Suite), or different editions of a software product (e.g. you may not upgrade from @RISK Professional to @RISK Industrial).

During the provision of Support Services, you agree to follow Palisade recommendations and provide all information reasonably requested by Palisade to resolve a problem. Such information may include but is not limited to: your name and company; serial number or activation ID; Software name and version; host application and operating system information; error messages; screen captures; access to view your computer via desktop-sharing software as much as is feasible; and models or output data as much as is feasible. You also agree to install the latest updates or upgrades (including patches) that Palisade recommends to resolve a problem.

12. LIMITATION ON AND EXLUSION OF DAMAGES.

YOU CAN ONLY RECOVER FROM PALISADE DIRECT DAMAGES UNDER OR RELATING TO THIS AGREEMENT UP TO THE AMOUNT YOU PAID PALISADE IN THE TWELVE MONTHS PRECEDING THE FIRST CLAIM UNDER THIS AGREEMENT. MULTIPLE CLAIMS DO NOT INCREASE THIS LIMIT. YOU MAY NOT RECOVER DAMAGES UNDER OR RELATING TO THIS AGREEMENT FROM PALISADE’S SUPPLIERS. IN NO EVENT SHALL PALISADE BE LIABLE FOR ANY OTHER DAMAGES, INCLUDING, BUT NOT LIMITED TO, CONSEQUENTIAL, LOST PROFITS, SPECIAL, INDIRECT, PUNITIVE, EXEMPLARY, OR INCIDENTAL DAMAGES, AND ANY DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS OR FINANCIAL LOSS OCCASIONED BY OR RESULTING FROM ANY USE OF OR INABILITY TO USE THE SOFTWARE OR SUPPORT SERVICES, EVEN IF PALISADE HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE. This limitation applies to anything related to or arising from the Software, Support Services or this Agreement (including your use of, the results of your use of, or your inability to use the Software or Support Services), and to claims for breach of contract, breach of warranty, guarantee or condition, indemnification, strict liability, negligence, other tort, or any other claim under any theory, to the maximum extent permitted by law. It also applies even if repair, replacement, or refund for the subscription fee does not fully compensate you for any losses.

13. LIMITED WARRANTY.

If you follow the User Guide documentation provided with the Software and comply with the terms and conditions of this Agreement, Palisade warrants the Software will perform substantially as described in the documentation during the warranty period (“Limited Warranty”). This Limited Warranty covers the Software for 90 days after first purchase. If you receive updates or upgrades under Support Services during the 90 day period, the Limited Warranty will apply to such updates or upgrades for 30 days or the remainder of the warranty period, whichever is longer. This Limited Warranty does not cover problems caused by your acts (or failure to act), the acts of others, or events beyond Palisade's reasonable control.

In the event the Software does not meet this Limited Warranty, Palisade will repair or replace the Software at no charge. If Palisade cannot repair or replace the Software, Palisade will refund the amount shown on your paid invoice for the Software. You must deactivate the Software to obtain a refund. These are your only remedies for breach of this Limited Warranty.

Palisade provides Support Services without warranty of any kind.

PALISADE, TO THE MAXIMUM EXTENT PERMITTED BY LAW, DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS (EXCEPT FOR THE LIMITED WARRANTY), WHETHER EXPRESS, IMPLIED, OR ARISING FROM STATUTE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO: (A) THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT; AND (B) ANY WARRANTY WITH RESPECT TO THE QUALITY, ACCURACY, EFFECTIVENESS, CURRENCY OR COMPLETENESS OF THE SOFTWARE OR SUPPORT SERVICES, OR THAT YOUR USE OF THE SOFTWARE OR SUPPORT SERVICES WILL BE ERROR-FREE, VIRUS-FREE, UNINTERRUPTED, SECURE, FREE FROM OTHER FAILURES OR WILL MEET YOUR REQUIREMENTS. YOUR ARE SOLELY RESPONSIBLE FOR THE LICENSED DEVICE.

14. SUBSCRIPTION PERIOD; TERMINATION.

The Software is licensed and Support Services are provided on a subscription basis. Among other things, this means that your rights to use the Software and receive Support Services are limited to the Subscription Period. The length of the Subscription Period may be one, two, or three years, depending on what you purchased, and begins on the date the Software and Activation ID are delivered to you. (In the case of renewals or situations where you already have the Software, the Subscription Period begins on the date the Activation ID is delivered.) Billing will be as agreed at time of purchase as documented on your invoice. The Subscription Period will renew automatically, at then-current rates, for the same Subscription Period as originally purchased at the end of the then-current Subscription Period unless either Palisade or you opt out no less than thirty (30) days before the expiration of the then-current Subscription Period by delivering written notice to the other party. If you want to opt out, you must send a notice to renewals@palisade.com advising Palisade of your intent to opt out by that deadline. The opt-out notice must include your complete name, company, and Software serial number or Activation ID. Palisade’s notice will be sent to the last address you gave Palisade. This license is effective until terminated. This Agreement will also terminate if you fail to comply with any term or condition of this Agreement and fail to remedy such failure within 30 days of notification by Palisade. You agree, upon either party opting out or any other termination, to cease using and destroy all copies of the Software and documentation. You will not receive a refund if the Agreement terminates from your breach of this Agreement. Terms of this Agreement which by their nature apply after termination or non-renewal of this Agreement shall survive, including but not limited to: Sections 12 (LIMITATION ON AND EXCLUSION OF DAMAGES), 13 (LIMITED WARRANTY), and 15 (REFUNDS).

15. REFUNDS.

You may receive a full refund for your purchase, as evidenced by your paid invoice, within 30 days of delivery of the Software for any reason other than your breach of this Agreement, provided that the Software has not been activated in accordance with Section 3 (SOFTWARE ACTIVATION).

16. EXPORT RESTRICTIONS.

The Software is subject to United States export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the Software. These laws include restrictions on destinations, end users, and end use.

17. ENTIRE AGREEMENT.

This Agreement, together with any invoice issued by Palisade, forms the entire Agreement between the parties with respect to the subject matter hereof and supersedes all previous or contemporaneous oral or written negotiations or agreements with respect to such subject matter. No amendment to this Agreement shall be binding on Palisade unless it is in a writing executed by an authorized representative of Palisade.

18. GOVERNING LAW; VENUE.

This Agreement shall be governed by the laws of the State of New York, United States of America without reference to its conflicts of laws provisions. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act are specifically excluded from application to this Agreement. The parties agree that any action, proceeding, controversy or claim between them arising out of or relating to this Agreement (collectively, an “Action”) shall be brought only in a court of competent jurisdiction in Ithaca, New York or in the United States District Court for the Northern District of New York. Each party hereby submits to the personal jurisdiction and venue of such courts and waives any objection on the grounds of venue, forum non-conveniens or any similar grounds with respect to any Action.

19. SEVERABILITY.

If any provision of this Agreement shall be held to be invalid or unenforceable under applicable law, then such provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of this Agreement.

20. U.S. GOVERNMENT RESTRICTED RIGHTS.

If you are an organization of the United States government, the Software is provided with Restricted Rights. You agree to meet all requirements necessary to ensure that the Federal Government will honor such rights. Disclosure, use or reproduction of the Software and accompanying documentation are subject to restrictions set forth in the Commercial Computer-Restricted Rights clause at Federal Acquisition Regulation 52.227-19, when applicable, or in the Department of Defense Federal Acquisition Regulations Supplement 252.227-7013.

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