END USER LICENSE AGREEMENT
Updated 17 December 2015
As used in this End User License Agreement ("EULA"), references to "Nitro" are to Nitro Software, Inc., a California corporation at 225 Bush St. 7th Floor, San Francisco, CA 94104 USA, and references to "Licensee" or to "you" are references to the party that has accepted the License to use the Licensed Software in accordance with the Terms and Conditions. Capitalized terms used and not defined in the body of this EULA are defined in Clause 19 below.
YOUR USE OF THE LICENSED SOFTWARE IS CONDITIONED UPON YOUR ACCEPTANCE OF ALL OF THE TERMS AND CONDITIONS OF THIS EULA, INCLUDING WITHOUT LIMITATION THE LIMITED WARRANTIES, DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN. IF YOU DO NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS OF THIS EULA, DO NOT MAKE ANY USE OF THE LICENSED SOFTWARE. ANY USE BY YOU OF THE LICENSED SOFTWARE, OR ANY PORTION THEREOF, CONSTITUTES YOUR ACCEPTANCE OF ALL OF THE TERMS AND CONDITIONS OF THIS EULA.
Subject to the terms and conditions of this EULA, Nitro hereby grants to Licensee a non-exclusive, non-transferable (except as expressly permitted herein), limited license ("License") to use the Licensed Software in the manner described in the Documentation solely for Licensee's use. For purposes of this EULA, "Licensed Software" means Nitro’s desktop software application (in object code form) licensed by Nitro to Licensee with which this EULA is provided and to which it pertains, including the following (as applicable):
1.1 Nitro-proprietary computer information and software included in the Licensed Software;
1.2 third party-proprietary computer information or software that Nitro has licensed for inclusion in the Licensed Software;
1.3 written materials or files relating to the Licensed Software (“Documentation”);
1.5 modified versions, updates and additions to the Licensed Software, if any (collectively, “Updates”); and
1.6 copies of the Licensed Software, if any, created by Licensee as permitted hereunder.
Licensee may install one copy of the Licensed Software on a single computer. The primary user of the computer on which the Licensed Software is installed may install a second copy of the software for his or her exclusive use on either a portable computer or a computer located at his or her home, provided the software on the portable or home computer is not used at the same time as the software on the primary computer. Licensee shall be solely responsible for all expenses incurred in Licensee’s installation of the Licensed Software.
Licensee may make one (1) copy of the Licensed Software for backup or archival purposes only. Nitro's copyright and trademark notices, and the copyright and trademark notices of third parties shall not be removed from such copy, and the Documentation may not be duplicated.
The Licensed Software contains technological measures that are designed to prevent its unlicensed or illegal use. The Licensed Software may contain enforcement technology that limits Licensee's ability to install and uninstall the Licensed Software on a machine to no more than a finite number of times, and for a finite number of machines. The Licensed Software may require activation as explained during installation and in the Documentation. If any such applicable activation procedure(s) is not followed, then the Licensed Software may only operate for a finite period of time. If activation is required, and not completed within the finite period of time set forth in the Documentation and explained during installation, then the Licensed Software will cease to function until activation has been completed, at which time functionality will be restored. If Licensee has any problem with the activation process, Licensee should contact Nitro customer support.
5. RESTRICTIONS/RESERVATION OF RIGHTS
Except for the Licenses granted herein, there are no other licenses, express or implied, granted to Licensee. Licensee shall not and shall not permit any User to (a) rent, loan or re-license rights to access and/or use the Licensed Software; (b) modify, disassemble, decompile, or reverse engineer software included as part of the Licensed Software; (c) share activation codes; (d) modify, adapt, translate, sublicense, rent or lease all or any portion of the Licensed Software; (e) use the Licensed Software as a hosted application, whether in connection with a facility management, timesharing, service provider, and/or service bureau arrangement or otherwise; (f) create any derivative works of all or any portion of the Licensed Software or Documentation (and any derivative works created in violation of this EULA shall be the sole and exclusive property of Nitro without waiver or limitation of Nitro's other rights and remedies with respect to such violation) or (g) use the Licensed Software in any way not expressly provided for in this Agreement. In using the Service, Licensee shall be responsible for all activities that occur under Licensee’s account. Licensee may not use a previous version of the Software after receiving an Enhancement or Upgrade as a replacement to a prior version and Licensee may not use the Licensed Products in the operation of any equipment in which the failure thereof could lead to personal injury, death, or damage to property. Licensee shall not remove or obscure Nitro's copyright or trademark notices, or the copyright and trademark notices of third parties that Nitro has included with the Licensed Products. Licensee shall abide by all applicable local, state, national and foreign laws and regulations in connection with its use of the Licensed Products, including all applicable import, export and re-export control laws and regulations of any country, including the U.S. Export Administration Regulations, the U.S. International Traffic in Arms Regulations, Council Regulation (EC) No 428/2009 on the control of exports of dual-use items and technology, and country-specific economic sanctions programs or embargoes adopted against countries or individuals under any applicable national or international legislation, including any measures implemented by the U.S. Office of Foreign Assets Control. Licensee agrees that as between Licensee and Nitro, Licensee is solely responsible for compliance related to the manner in which Licensee and its Users choose to use the Licensed Products, including Licensee’s and its Users’ transfer and processing of content via the Licensed Products.
6. SOFTWARE UPDATES
If the Licensed Software is an Update to a previous version, Licensee must possess a valid License to the previous version. Any Update provided to Licensee is made on a License exchange basis such that Licensee agrees, as a condition for receiving an Update, that Licensee will terminate all of Licensee's rights to use any previous version of the Licensed Software. However, Licensee may continue to use the previous version only to assist in transitioning to the Updated version. Once an Update has been released, Nitro may cease support for prior versions, without any notice to Licensee.
Nitro is not obligated by this EULA to provide Licensee with any technical support services relating to the Licensed Software; however, Licensee may order additional support services for an additional charge as Nitro may offer from time to time during the term of this EULA.
8. INTELLECTUAL PROPERTY OWNERSHIP
The Licensed Software, including any and all Updates and any authorized copies thereof that Licensee makes are the intellectual property of, and are owned solely by, Nitro and by third parties whose intellectual property has been licensed by Nitro. The structure, organization and code of the Licensed Software are the valuable Confidential Information of Nitro and such third parties. The Licensed Software is protected by law, including without limitation, the copyright laws of the United States and other countries, and by international treaty provisions. Except as expressly provided in this EULA, Licensee is not granted any rights under Nitro's or its licensors' intellectual property rights in the Licensed Software, and Nitro and such licensors reserve all rights not expressly granted to Licensee under this EULA.
9. GOVERNMENT USERS
If the Licensee is a branch or agency of the U.S. Government, Licensee acknowledges and agrees that the Licensed Products and Documentation qualify as "commercial items," as that term is defined at Federal Acquisition Regulation ("FAR") (48 C.F.R.) 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in FAR 12.212. Use of the Licensed Products or Documentation by the Government constitutes acceptance of the rights and restrictions in this Agreement.
Licensee agrees that during and after the existence of this Agreement it will hold in strictest confidence, and will not use for any purpose unrelated to its performance of this Agreement or disclose to any third party, any Confidential Information of Nitro. The term “Confidential Information” shall mean all non-public information, whether business or technical in nature, that Nitro designates as being confidential, or which under the circumstances of disclosure ought to be treated as confidential and shall include (but is not limited to) information concerning business methods, business plans, new product launches, customer and vendor information, internal policies and procedures and pricing and other financial information. Licensee shall not disclose the terms or conditions of this Agreement without the prior written consent of Nitro, except (a) as may be required by law or (b) to its employees, contractors or agents who have a specific need to know such information and who are under a written obligation of confidentiality at least as restrictive as that contained in this Section. Notwithstanding the foregoing, information will not be deemed confidential if it (i) was known to Licensee, and such information was acquired through proper methods, prior to its receipt from Nitro, as evidenced by written records of Licensee; (ii) is now or (through no act or failure on the part of Licensee) later becomes generally known through no breach of this Agreement by Licensee; (iii) is supplied to Licensee by a third party that is free to make that disclosure without restriction; or (iv) is independently developed by Licensee without use of or reference to any Confidential Information provided by the disclosing party. The restrictions on disclosure imposed by this Section shall not apply to information that is required by law or order of a court, administrative agency or other governmental body to be disclosed by Licensee, provided that in each such case Licensee provides Nitro with prompt written notice of such order or requirement and reasonably assists Nitro in obtaining a protective order or other appropriate relief.
11. WARRANTIES OF THE PARTIES
Each party warrants that it has the full power and authority to enter into this EULA.
12. LIMITED WARRANTY ON MEDIA
Nitro warrants that any media on which the Licensed Software is distributed shall be free from material defects for a period of thirty (30) calendar days from the date of receipt of the License. If Licensee discovers a defect in the media during this thirty (30) day period, Licensee may return the defective media to Nitro within ten (10) calendar days of discovering the defect, and Licensee's sole remedy shall be to have the defective media replaced.
13. NO WARRANTY ON LICENSED SOFTWARE
The Licensed Software is provided to Licensee “AS IS.” Nitro, and Nitro's LICENSORS AND suppliers, make no warranty as to its use or performance. NITRO, AND NITRO'S LICENSORS AND SUPPLIERS, MAKE NO REPRESENTATIONS, WARRANTIES, CONDITIONS, OR TERMS (EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE, COURSE OF DEALING, TRADE PRACTICE OR OTHERWISE) AS TO THE LICENSED SOFTWARE, INCLUDING WITHOUT LIMITATION TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR ANY PARTICULAR PURPOSE, EXCEPT FOR, AND ONLY TO THE EXTENT THAT, ANY SUCH REPRESENTATION, WARRANTY CONDITION OR TERM MAY NOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW IN LICENSEE'S JURISDICTION.
14. WARRANTY DISCLAIMER
The warranties expressly set out in this EULA are the only warranties that each party gives to the other in respect of the subject matter of this EULA. All other Representations, warranties, conditions, or terms (express or implied, whether by statute, common law, custom, usage, COURSE OF DEALING, TRADE PRACTICE or otherwise) AS TO ANY MATTER ARE EXCLUDED OR LIMITED, EXCEPT FOR, AND ONLY TO THE EXTENT, THAT ANY SUCH REPRESENTATION, WARRANTY, CONDITION OR TERM MAY NOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW IN LICENSEE'S JURISDICTION. NITRO EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY CONCERNING THE ABILITY OF THE LICENSED SOFTWARE TO COMPLETELY OR ACCURATELY REDACT CONTENT.
15.1 Licensee shall indemnify, defend and hold harmless Nitro, Nitro's suppliers, and their respective affiliates, officers, directors, employees, representatives, and agents from and against all losses, damages, claims, liabilities, costs or expenses of whatever form or nature, including attorney’s fees and other costs, arising out of or related to Licensee's use of the Licensed Software, except to the extent caused by the gross negligence or wilful misconduct of Nitro or subject to Nitro's indemnification obligation under Section 15.2 below. Nitro shall promptly notify Licensee in writing of any such claim; and Licensee shall have the exclusive right to control the defense of such claim, provided that if Licensee does not undertake such defense, or fails to prosecute such defense with reasonable care and diligence, Nitro at its option may undertake the defense of such claim and Licensee shall be liable for all costs incurred by Nitro in connection therewith. In no event shall either party settle or compromise any such claim without the other party's prior written approval, provided that (a) no such approval shall be required from a party provided with a complete release of claims and subject to no liability under such settlement or compromise, and (b) Nitro shall not be required to obtain the prior approval of Licensee if Licensee fails to undertake the defense of such claims hereunder, or fails to prosecute such defense with reasonable care and diligence. Nitro may, at its own cost and expense, assist in the defense of any such claim and be represented by counsel of its choice, provided that if Nitro undertakes the defense because Licensee fails to do so or fails to prosecute the defense with reasonable care and diligence, Licensee shall be liable for all costs incurred by Nitro in connection therewith.
15.2 Nitro shall indemnify, defend and hold harmless Licensee, its affiliates, and their respective officers, directors, employees, representatives, and agents from and against all losses, damages, or expenses of whatever form or nature, including reasonable attorneys’ fees and other costs, arising out of or related to any third party claim that the Licensed Software violates any patent, copyright or trade secret right of such third party, provided that: (i) Licensee's use of the Licensed Software is in accordance with the terms of this EULA; (ii) Nitro is promptly notified in writing of any such claim; and (iii) Nitro shall have the exclusive right to control the defense of such claim. In no event shall Licensee settle or compromise any such claim without Nitro's prior written approval. Licensee may, at its own cost and expense, assist in the defense of any such claim and be represented by counsel of its choice. In addition, if the Licensed Software becomes, or in Nitro’s opinion is likely to become, the subject of an infringement claim, Nitro may, at its option and expense, either: (i) obtain for Licensee the right to continue to use the Licensed Software; or (ii) modify the Licensed Software so that it becomes non-infringing; or (iii) only in the event that options (i) and (ii) above are not commercially reasonable, terminate the License with respect to the infringing components of the Licensed Software without any further obligation to Licensee. This Clause 15.2 states the entire liability of Nitro with respect to any of the foregoing or any liability for any third party claims of infringement, misappropriation or violation of proprietary rights.
16. LIMITATION OF LIABILITY
EXCEPT FOR LIABILITY OF LICENSEE ARISING UNDER CLAUSES 5 (RESTRICTIONS/RESERVATION OF RIGHTS), 10 (CONFIDENTIALITY), and 18.2 (GENERAL; RESTRICTIONS ON TRANSFER), IN NO EVENT SHALL EITHER PARTY (OR IN THE CASE OF NITRO, NITRO'S LICENSORS OR SUPPLIERS), BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, OR ANY LOST REVENUE, LOST PROFITS. LOST SAVINGS, LOST BUSINESS OR LOSS OF GOODWILL, EVEN IF ITS REPRESENTATIVE (OR IN THE CASE OF NITRO, A REPRESENTATIVE OF ONE OR MORE OF NITRO'S LICENSORS OR SUPPLIERS) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. THESE LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN LICENSEE'S JURISDICTION.
EXCEPT FOR LIABILITY OF LICENSEE ARISING UNDER CLAUSES 5 (RESTRICTIONS/RESERVATION OF RIGHTS), 10 (CONFIDENTIALITY), and 18.2 (GENERAL; RESTRICTIONS ON TRANSFER) AND THE PARTIES' RESPECTIVE INDEMNIFICATION OBLIGATIONS HEREUNDER, THE AGGREGATE LIABILITY OF NITRO, AND NITRO'S LICENSORS AND SUPPLIERS, AND LICENSEE, RESPECTIVELY, UNDER OR IN CONNECTION WITH THIS EULA, SHALL BE LIMITED TO THE ANNUAL CONTRACT VALUE (AS DEFINED IN SECTION 19 BELOW).
Nitro shall be entitled to terminate this EULA effective immediately upon serving written notice on the Licensee in the following circumstances; if Licensee commits a material breach of any of its obligations under this EULA which is not capable of remedy or if Licensee commits a material breach of any of its obligations under this EULA which is not remedied within fifteen (15) calendar days after receipt of a notice from Nitro. Termination of this EULA shall not affect any rights, obligations or liabilities of either party which have accrued before termination or which are intended to continue to have effect beyond termination. Without limiting the generality of the foregoing, Clauses 4, 5, 8, 10, 13-16 (inclusive), 17.1.3, 17.1.4, 18 (excluding Clause 18.4) and 19 shall survive any termination of this EULA. Upon termination of this EULA, Licensee shall return to Nitro all copies of the Licensed Software, or verify in writing that all copies of the Licensed Software have been destroyed.
18.1 Except for the service of process pursuant to court proceedings and except as otherwise expressly agreed by amendment of this EULA, any notices in connection with this EULA from Licensee to Nitro shall be sent to Nitro at 225 Bush St 7TH Floor, San Francisco, CA 94104, USA, and any notices in connection with this EULA from Nitro to Licensee shall be sent to Licensee's email address as provided to Nitro upon registration (including without limitation upon registration with Nitro for technical support whether as provided in Clause 7 above or otherwise). Except as otherwise agreed, notice shall be deemed to have been given if sent for overnight delivery by an internationally recognized courier requiring a signature evidencing receipt, the next business day, and if sent by registered mail, return receipt requested, five (5) days after the mail is sent. Licensee warrants that any email address provided to Nitro will be valid, and that Licensee shall notify Nitro of a new email address if the previous email address becomes invalid.
18.2 Licensee may not, in whole or part, sublicense, assign, transfer, sell or otherwise dispose of the Licensed Software, or any of its any rights or obligations under this EULA, whether by merger, operation of law, assignment, sale or otherwise, without Nitro’s express prior written consent. This EULA shall be binding upon and inure to the benefit of the permitted successors and assigns of Licensee hereto.
18.3 Nitro shall be entitled to sub-contract any or all of its obligations under this EULA to a sub-contractor. Nitro shall also be entitled to assign this EULA to any of its affiliates or to any successor in interest to all or substantially all of its business or assets related to this EULA, in each case whether by merger, operation of law, assignment, purchase or otherwise. This EULA shall be binding upon and inure to the benefit of the successors and assigns of Nitro hereto.
18.4 Nitro may use Licensee’s name and logos to identify Licensee as a Nitro licensee in general marketing materials or otherwise.
18.6 If any provision or part of any provision of this EULA is found to be invalid or unenforceable by any court or other competent body, that provision or part shall be enforced to the maximum extent permissible and such invalidity or unenforceability shall not affect the other provisions (or parts thereof) of this EULA, and such other provisions (and parts thereof) shall remain in full force and effect.
18.7 Neither party shall be liable for any delay or failure in the performance of its obligations under this EULA if such delay or failure is due to an event of Force Majeure.
18.8 If either party fails to exercise a right or remedy that it has or which arises in relation to this EULA, such failure shall not prevent that party from exercising that right or remedy subsequently in respect of that or any other incident.
18.9 A waiver of any breach of provision of this EULA shall only be effective if it is made in writing and signed on behalf of the party who is waiving the breach of provision. Any waiver of a breach of any provision of this EULA shall not be deemed a waiver of any subsequent breach and shall not affect the enforceability of any other provision of this EULA.
18.10 This EULA and all matters arising out of it shall be governed by, and construed in accordance with, the laws of the State of California. The state and federal courts situated in the City and County of San Francisco, California, USA shall have exclusive jurisdiction over any claim or matter which may arise out of or in connection with this EULA, and each party hereby consents to such jurisdiction and waives any objection to venue in such courts. Notwithstanding the foregoing, each party shall have the right to institute judicial proceedings against the other party or anyone acting by, through or under such other party, in any court of competent jurisdiction in order to enforce the instituting party’s rights hereunder through specific performance, injunction or other equitable relief.
18.11 Modifications of or amendments to this EULA may be made by Nitro at any time by posting a modified version of this EULA reflecting such amendments on www.gonitro.com including without limitation where such amendment is: (i) required by law, regulation or court order (or is made in anticipation of an impending change in applicable law or regulation), or (ii) made in the ordinary course of Nitro’s business, applicable to substantially all of Nitro's licensees located in the Licensee's jurisdiction that have agreed to terms similar to those set out in this EULA. Licensee may terminate this EULA by ceasing all use of the Licensed Software and returning to Nitro or destroying all copies of the Licensed Software if Licensee does not agree with the amendment. The amendment shall be deemed accepted by Licensee if Licensee does not terminate this EULA.
18.12 This EULA sets out all of the terms agreed between the parties relating to the subject matter of this EULA, and this EULA supersedes any and all prior and contemporaneous representations, discussions, undertakings, communications, arrangements advertisements and understandings relating to its subject matter. Neither of the parties shall be bound by, or liable to the other party for, any representation, undertaking or inducement (other than fraudulent misrepresentations) made by it or by any agent or person acting on its behalf which is not expressly contained in this EULA.
18.13 The parties hereby agree that nothing in this EULA shall be construed as creating a right which is enforceable by any person who is not a party to this EULA or a permitted assignee of such a party.
18.14 In this EULA:
18.14.1 any reference to a statutory provision includes a reference to any modification or re-enactment of it from time to time;
18.14.2 except for the reference contained in Clause 10 of this EULA, references to Clauses are to the clauses of this EULA;
18.14.3 the singular includes the plural and vice versa;
18.14.4 the headings are for ease of reference only and shall not affect the construction or interpretation of this EULA;
18.14.5 where any matter is to be agreed, such agreement shall be recorded in writing; and
18.14.6 wherever the words “including”, “include”, “includes” or “included” are used, they shall be deemed to be followed by the words “without limitation” unless the context otherwise requires.
19. definitionsIn this EULA the following words and expressions shall have the following meanings:
“Annual Contract Value” means the actual amounts paid or payable by Licensee under this EULA (excluding all applicable taxes) in the Contract Year in which any claim arises;
“Contract Year” means the twelve calendar month period beginning on the Effective Date and each anniversary thereof;
“Documentation” means Nitro’s then-current instructions, user manuals, training materials and other materials in written or electronic form generally made available to its licensees relating to the Licensed Products.
“Effective Date” means the date of Licensee's receipt of the License;
“Force Majeure” means any act of government or state, civil commotion, epidemic, fire, flood, industrial action or organised protests by third parties, natural disaster, war, act of terrorism, services provided by third parties, or event beyond the reasonable control of the party claiming to be excused from performance of its obligations;
“Term” means the period commencing with the Effective Date (the first day of the first Contract Year) and ending on the Termination Date;
“Termination Date” means the effective date of termination of this EULA pursuant to Clause 17; and
“Terms and Conditions” means the terms and conditions of this EULA, as amended from time to time as provided for herein.