SmartDeploy Software End User License Agreement
EULA
THIS IS A LEGAL DOCUMENT -- RETAIN FOR YOUR RECORDS
SMARTDEPLOY END USER LICENSE
Licensor: Prowess
Notice to User:
THIS IS A LEGAL AGREEMENT BETWEEN THE PERSON OR ENTITY PURCHASING THIS SOFTWARE LICENSE OR THAT IS USING THE SOFTWARE (IF A SOFTWARE LICENSE HAS NOT BEEN PURCHASED) (“YOU”) AND PROWESS CONSULTING, LLC (“PROWESS”). IT IS IMPORTANT THAT YOU READ THIS AGREEMENT CAREFULLY BEFORE USING THE SOFTWARE (“SOFTWARE”) OR ANY DOCUMENTATION (“DOCUMENTATION”) ACCOMPANYING THIS AGREEMENT. BY USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, WHETHER OR NOT YOU DECIDE TO PURCHASE A LICENSE TO THE SOFTWARE. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU ARE NOT LICENSED TO USE THE SOFTWARE, AND YOU MUST DESTROY ANY COPIES OF THE SOFTWARE IN YOUR POSSESSION OR CONTROL. PLEASE PRINT A COPY OF THIS AGREEMENT FOR YOUR FILES.
1. SOFTWARE LICENSE
(a) License Grant. Subject to the terms and conditions of this Agreement, Prowess grants You a non-exclusive, non-sublicensable, non-transferable, limited license to install and use one instance of the Software on one compatible computer.
(b) Microsoft Software. The Software includes Microsoft® Windows® Preinstallation Environment software (the “WinPE Software”) licensed from Microsoft Corporation and/or MS affiliate(s). As used in this Agreement, the term “Software” refers to both the SmartDeploy software provided by Prowess and the WinPE Software provided by Microsoft Corporation and/or MS affiliate(s). Notwithstanding the foregoing, all customer support issues shall be handled solely by Prowess.
(c) Third-Party Software. The license granted pursuant to paragraph (a) above is limited to the Software and explicitly does not cover or include any software (other than the WinPE Software) owned or licensed by third parties (“Third-Party Software”). You are solely responsible for separately obtaining any Third-Party Software You intend to use with the Software and for complying with the terms of any license agreement(s) applicable to such Third-Party Software.
(d) Server Use. You may only install one copy of the Software on Your computer file server but You may run the Software on other computers within Your internal network in a pre-installation environment. No other network use is permitted, including, without limitation the use of the Software for Internet or Web hosting services or the use of the Software by any user not properly licensed by Prowess to use this copy of the Software.
(e) Backup and Archival Copies. You may make one backup and one archival copy of the Software, provided Your backup and archival copies are not installed or used on any computer and further provided that all such copies shall bear the original and unmodified copyright, patent and other intellectual property markings that appear on or in the Software. You may not transfer Your rights in any backup or archival copy to any third party.
(f) No Reproduction or Distribution. You may not re-license, reproduce (except as expressly authorized in this Agreement) or distribute the Software to any other person or entity without the express written permission of Prowess.
(g) Ownership of Software. The Software is licensed to You and not sold. Prowess and its suppliers reserve all rights not expressly granted herein. Title to the Software is not transferred to You. All right, title and interest in and to the Software and all copies thereof and all intellectual property rights therein is retained by Prowess, subject to the rights of use granted to You in this Agreement.
(h) Reverse Engineering. You may not reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, underlying ideas, underlying user interface techniques or algorithms of the Software by any means whatsoever, directly or indirectly, or disclose any of the foregoing. Notwithstanding the foregoing, decompiling the Software is permitted but only to the extent the laws of Your jurisdiction expressly give You the right to do so to obtain information necessary to render the Software interoperable with other software notwithstanding the foregoing limitations; provided, however, that before decompiling the Software You must first request such information from Prowess and provide Prowess with a commercially reasonable amount of time to respond. Prowess may, in its discretion, either provide such information to You or impose reasonable conditions, including a reasonable fee, on such use of the source code for the Software to ensure that Prowess’ and its suppliers’ proprietary rights in the source code for the Software are protected. Any information supplied by Prowess or obtained by You, as permitted hereunder, may only be used by You for the purpose described herein and may not be disclosed to any third party or used to create any software which is substantially similar to the Software. Requests for information should be directed to the Prowess Customer Support Department.
(i) Other Restrictions. You may not loan, rent, lease, sublicense, distribute or otherwise transfer all or any portion of the Software to third parties without the prior written consent of Prowess. You may not copy the Software except as expressly set forth above, and any copies that You are permitted to make pursuant to this Agreement must contain the same copyright, patent and other intellectual property markings that appear on or in the Software. You may not modify, adapt or translate the Software. You may not, directly or indirectly, encumber or suffer to exist any lien or security interest on the Software; knowingly take any action that would cause the Software to be placed in the public domain. You may not in any way create, make available, or distribute, either directly or indirectly, any application that would enable others to utilize the tools and features available only to registered licensees of the Software, that would otherwise circumvent the need for any third party to purchase a valid license
(s). You will comply with applicable law and Prowess’ instructions regarding the use of the Software. You agree to notify Your employees and agents who may have access to the Software of the restrictions contained in this Agreement and to ensure their compliance with these restrictions. THE
SOFTWARE IS NOT INTENDED FOR USE IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION, COMMUNICATION SYSTEMS OR AIR TRAFFIC CONTROL EQUIPMENT, OR IN ANY OTHER ENVIRONMENT WHERE THE FAILURE OF THE SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
2. INTELLECTUAL PROPERTY RIGHTS
Acknowledgement of Prowess' Rights. You acknowledge that, as between You and Prowess, the Software and any copies that You are authorized by Prowess to make are the intellectual property of and are owned by Prowess and its suppliers. The structure, organization and code of the Software are the valuable trade secrets and confidential information of Prowess and its suppliers. The Software is protected by copyright, including without limitation by United States Copyright Law, international treaty provisions and applicable laws in the country in which it is being used. You acknowledge that, as between You and Prowess, Prowess and its suppliers retain the ownership of all patents, copyrights, trade secrets, trademarks and other intellectual property rights pertaining to the Software. You will take no action, which adversely affects Prowess’ intellectual property rights in the Software. SmartDeploy Enterprise is a trademark of Prowess. Unicode and the Unicode Logo are trademarks of Unicode, Inc. Windows, Windows 95, Windows 98, Windows NT Windows 2000, Windows XP, and Windows Vista are trademarks of Microsoft Corporation. W3C, XML and XSL are trademarks (registered in numerous countries) of the World Wide Web Consortium (W3C); marks of the W3C are registered and held by its host institutions, MIT, INRIA and Keio. Except as expressly stated above, this Agreement does not grant You any intellectual property rights in the Software.
3. PRE-RELEASE PRODUCT ADDITIONAL TERMS
If the product you have received with this license is pre-commercial release or beta Software (“Pre-release Software”), then this Section applies. To the extent that any provision in this Section is in conflict with any other term or condition in this Agreement, this Section shall supersede such other term(s) and condition(s) with respect to the Pre-release Software, but only to the extent necessary to resolve the conflict. You acknowledge that the Pre-Release Software is a pre-release version, does not represent final product from Prowess, and may contain bugs, errors and other problems that could cause system or other failures and data loss. CONSEQUENTLY, THE PRE-RELEASE SOFTWARE IS PROVIDED TO YOU “AS-IS”, AND PROWESS (ON BEHALF OF ITSELF AND ITS SUPPLIERS) DISCLAIMS ANY WARRANTY OR LIABILITY OBLIGATIONS TO YOU OF ANY KIND, EXPRESS OR IMPLIED. WHERE LEGALLY LIABILITY CANNOT BE EXCLUDED FOR PRE-RELEASE SOFTWARE, BUT IT MAY BE LIMITED, PROWESS’ LIABILITY AND THAT OF ITS SUPPLIERS SHALL BE LIMITED TO THE SUM OF FIFTY DOLLARS (U.S.$50) IN TOTAL. You acknowledge that Prowess has not promised or guaranteed that the Pre-release Software will be announced or made available to anyone in the future, that Prowess has no express or implied obligation to You to announce or introduce the Pre-release Software and that Prowess may not introduce a product similar to or compatible with the Pre-release Software. Accordingly, You acknowledge that any research or development that You perform regarding the Pre-release Software or any product associated with the Pre-release Software is done entirely at Your own risk. If you have been provided the Pre-release Software pursuant to a separate written agreement, Your use of the Software is governed by such agreement. You may not sublicense, lease, loan, rent, distribute or otherwise transfer the Pre-release Software. Upon receipt of a later unreleased version of the Pre-release Software or release by Prowess of a publicly released commercial version of the Software, whether as a stand-alone product or as part of a larger product, you agree to return or destroy all earlier Pre-release Software received from Prowess and to abide by the terms of the license agreement for any such later versions of the Pre-release Software.
4. NO WARRANTY
PROWESS AND ITS SUPPLIERS PROVIDE THE SOFTWARE (INCLUDING, WITHOUT LIMITATION, THE WINPE SOFTWARE INCLUDED WITH THE SOFTWARE) ON AN “AS IS” BASIS AND WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PROWESS AND ITS SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, LACK OF VIRUSES, INFORMATIONAL CONTENT OR ACCURACY, QUIET ENJOYMENT, TITLE AND NON-INFRINGEMENT, WITH REGARD TO THE SOFTWARE, AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES.
5. LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, SHALL PROWESS OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF PROWESS OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, PROWESS’ ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL BE LIMITED TO THE GREATER OF THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE OR U.S.$1000.00. IN NO EVENT SHALL MICROSOFT CORPORATION OR ANY MS AFFILIATE HAVE ANY LIABILITY RELATING TO THE SOFTWARE.
6. INDEMNIFICATION
Prowess will indemnify and hold You harmless and will defend or settle any claim, suit or proceeding brought against You that is based upon a claim that the Software (other than the WinPE Software) infringes a copyright or violates a third-party intellectual or proprietary right protected by United States law (a “Claim”), but only to the extent that the Claim arises directly out of Your use of the Software (other than the Win PE Software). You must notify Prowess in writing of any Claim within ten (10) business days after you first receive notice of the Claim, and you shall provide to Prowess at no cost with such assistance and cooperation as Prowess may reasonably request from time to time in connection with the defense of the Claim. Prowess shall have sole control over the defense of any Claim (including, without limitation, the selection of counsel and the right to settle on Your behalf on any terms Prowess deems appropriate in the sole exercise of its discretion). You may, at your sole cost, retain separate counsel and participate in the defense or settlement negotiations. Prowess shall pay actual damages and costs awarded against You (or payable by You pursuant to a settlement agreement) in connection with a Claim to the extent such damages and costs are not reimbursed to You by insurance or a third party, to an aggregate maximum of US$1,000. If the Software or its use becomes the subject of a Claim or its use is enjoined, or if in the opinion of Prowess’ legal counsel the Software is likely to become the subject of a Claim, Prowess shall attempt to resolve the Claim by using commercially reasonable efforts to modify the Software or obtain a license to continue using the Software. If in the opinion of Prowess’ legal counsel the Claim, the injunction or potential Claim cannot be resolved through reasonable modification or licensing, Prowess, at its own election, may terminate this Agreement without penalty, and will refund to You, on a pro rata basis, any fees paid in advance by You to Prowess. THE FOREGOING CONSTITUTES PROWESS’ SOLE AND EXCLUSIVE LIABILITY AND OBLIGATION WITH RESPECT TO ANY INTELLECTUAL PROPERTY INFRINGEMENT.
7. TERM AND TERMINATION
This Agreement may be terminated (a) by Your giving Prowess written notice of termination; or (b) by Prowess, at its option, by giving You written notice of termination if you commit a breach of this Agreement and fail to cure such breach within ten (10) days after receiving notice of the breach from Prowess. Upon any termination of this Agreement, you must cease all use of the Software, destroy all copies then in Your possession or control and take such other actions as Prowess may reasonably request to ensure that no copies of the Software remain in Your possession or control.
8. GOVERNMENT USE.
If You are part of an agency, department, or other entity of the United States Government (the “Government”), the use, duplication, reproduction, release, modification, disclosure or transfer of the Software is restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The Software is a “commercial item” and “commercial computer software” and the Documentation is “commercial computer software documentation.” In accordance with such provisions, any use of the Software by the Government shall be governed solely by the terms of this Agreement.
9. GENERAL PROVISIONS
This Agreement shall be governed by and construed under Washington law as such law applies to agreements between Washington residents entered into and to be performed within Washington. The sole and exclusive jurisdiction and venue for actions arising under this Agreement shall be the State and Federal courts in King County, Washington and You hereby agree to service of process in accordance with the rules of such courts. The party prevailing in any dispute under this Agreement shall be entitled to its costs and legal fees. This Agreement contains the entire agreement and understanding of the parties with respect to the subject matter hereof, and supersedes all prior written and oral understandings of the parties with respect to the subject matter hereof. Any notice or other communication given under this Agreement shall be in writing and shall have been properly given by either of us to the other if sent by certified or registered mail, return receipt requested, or by overnight courier to the address shown on Prowess’ Web site for Prowess and the address shown in Prowess’ records for You, or such other address as the parties may designate by notice given in the manner set forth above. This Agreement will bind and inure to the benefit of the parties and our respective heirs, personal and legal representatives, affiliates, successors and permitted assigns. The failure of either party at any time to require performance of any provision hereof shall in no manner affect such party’s right at a later time to enforce the same or any other term of this Agreement. This Agreement may be amended only by a document in writing signed by both parties. In the event of a breach or threatened breach of this Agreement by either party, the other shall have all applicable equitable as well as legal remedies. The Software and its related documentation are subject to U.S. export jurisdiction and may not be exported or re-exported in violation of the U.S. Export Administration Act and its implementing regulations or the laws of the jurisdiction in which the Software was obtained. Each party represents and warrants that it is duly authorized and empowered to enter into and perform this Agreement. If, for any reason, any provision of this Agreement is held invalid or otherwise unenforceable, such invalidity or unenforceability shall not affect the remainder of this Agreement, and this Agreement shall continue in full force and effect to the fullest extent allowed by law. This Agreement is personal to You and may not be transferred or assigned for any reason whatsoever without Prowess’ written consent and any action or conduct in violation of the foregoing shall be void and of no effect. [Prowess expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder. The parties knowingly and expressly consent to the foregoing terms and conditions.
10. ADDITIONAL PROVISIONS
The Microsoft® Windows® Preinstallation Environment software included with the Software may be used for boot, diagnostic, setup, restoration, installation, configuration, test or disaster recovery purposes only. NOTE: THIS SOFTWARE CONTAINS A SECURITY FEATURE THAT WILL CAUSE YOUR SYSTEM TO REBOOT WITHOUT PRIOR NOTIFICATION TO YOU AFTER 24 HOURS OF CONTINUOUS USE. You may not use the Software or any other software, including, without limitation, the WinPE Software or any other software you may obtain from Prowess as a general purpose operating system or a substitute for a fully functional version of any operating system product. The Software is designed for use in supporting the deployment of the following operating systems: Microsoft Windows 95, Microsoft Windows 98, Microsoft Windows 98 Second Edition, Microsoft Windows Millennium Edition, Microsoft Windows NT Workstation 4 Service Pack 5 or later, Microsoft Windows NT Server 4 Service Pack 5 or later, Microsoft Windows 2000 Professional, Microsoft Windows 2000 Server (Standard, Advanced and Datacenter Editions), Microsoft Windows XP Professional, Microsoft Windows XP Tablet PC Edition, Microsoft Windows XP Media Center Edition, Microsoft Windows Server 2003 (Web, Standard, Enterprise and Datacenter Editions), Windows Vista Business, Windows Vista Enterprise or Windows Vista Premium. The Software is designed for use on processor architectures supported by the operating system that the Software was built from: e.g., the x86 32-bit version may only deploy X86 32-bit Microsoft operating systems, the Intel Itanium version may only deploy versions of Microsoft Windows designed for this architecture, and the 64-bit extended version may only deploy versions of Microsoft Windows designed for this architecture. The Software may not function properly with other operating system products or other processor architectures.