SmartDeploy End User License Agreement
THIS IS A LEGAL DOCUMENT — PLEASE READ AND RETAIN FOR YOUR RECORDS
This is a legal document (the “Agreement”) between you and SmartDeploy USA (“SmartDeploy”). It is important that you read this document before using the SmartDeploy-provided software (“Software”) and any accompanying documentation (“Documentation”). By using the Software, you agree to be bound by the terms of this Agreement, whether or not you decide to purchase the Software. If you do not agree, 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.
If you agree to the terms of this Agreement, you have the following rights:
“Device” means a virtual or physical single computer, server, or other device on which you install a Deployment Package or the Administrative Tools.
“Target Computer” means a virtual or physical single computer, server, or other Device on which a Deployment Package will be used.
“Technician Computer” means a single computer, server or other Device on which the Administrative Tools may be installed.
“Administrative Tools” includes but is not limited to the Build Wizard, Capture Wizard, Media Wizard, Platform Manager, SmartDeploy Enterprise Command Prompt, and SmartDeploy Enterprise License Wizard.
“Deployment Package(s)” consists of one or more of the following SmartDeploy-created deployment media, images, Device driver packages (“Platform Packs”) or any other media created with the Administrative Tools.
“System Data” means all data, content and information in the nature of de-identified or aggregate administrative data, statistical and demographical data, and operational information and data generated by your use of the Software. The Systems Data does not include any personal data or any personally identifiable information.
2. SOFTWARE LICENSE
(a) License Grant. The Software is licensed on a per-Target Computer basis. During the term and subject to the terms and conditions set forth in this Agreement, SmartDeploy hereby grants you a personal, non-exclusive, non-transferable (except as provided below), non-sublicensable, limited license to install and use the Software as follows:
i) Using a valid license key, you may install the Software on Technician Computers to execute administrative tasks for the creation or modification of Deployment Packages intended for Target Computers. Examples of administrative tasks are creating or modifying deployment media, images, or Device driver packages.
ii) A Target Computer license is required for each machine on which a Deployment Package is used. The total number of Target Computers on which you use Deployment Packages may not exceed the quantity of licenses purchased.
iii) Standard MSP licenses are granted for a period of one (1) year (a “Contract Year”). A license must be purchased for each Target Computer that will receive a Deployment Package over the course of the licensed Contract Year. After the expiration of the licensed Contract Year, an MSP license key becomes valid for 0 Target Computers and you must purchase a new license for a new Contract Year.
(b) Server Use. A server may be used as a Technician Computer, a Target Computer, to store Deployment Packages, or as a backup for the Software. If you are using a server as a Target Computer, a machine license is required. No other network use is permitted, including without limitation using the Software for Internet or Web hosting services or by any user not licensed to use the Software through a valid license from SmartDeploy.
(c) System Data Collection and Use. In connection with your use of the Software, SmartDeploy may collect, retain, disclose, and use System Data. SmartDeploy uses this System Data to enable, optimize, and provide the Software or support to you. All System Data is owned exclusively by SmartDeploy. SmartDeploy may make any legal use of such System Data without notifying you or sharing such System Data with you. Specifically, SmartDeploy may publish and share System Data with others in aggregate or statistical form to promote the Software and for evaluating the efficiency, utility and functionality of the Software.
(d) Backup and Archival Copies. You may make backup and archival copies of the Software, 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 the rights to a backup or archival copy.
(e) Full Version. You may not re-license, reproduce or distribute a full version copy of the Software except with the express written permission of SmartDeploy.
(f) Title. The Software is licensed and not sold. Title to the Software is not transferred to you. Ownership of all copies of the Software and of copies made by you is vested in SmartDeploy, subject to the rights of use granted to you in this Agreement.
(g) 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.
(h) Other Restrictions. You may not loan, rent, lease, sublicense, distribute or otherwise transfer all or any portion of the Software to third parties except to the limited extent set forth in Section 6 below. You may not copy the Software except as expressly set forth above. 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; or use the Software in any computer environment not specified in this Agreement. 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 licensed users of the Software, or that would otherwise circumvent the need for any third party to purchase a valid license(s). You will comply with applicable law and SmartDeploy’s 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 environments where the failure of the Software could lead to death, personal injury or severe physical or environmental damage and shall not be used in such environments. You are further responsible for the accuracy, quality and legality of any electronic data, content and information submitted by you in connection with your use of the Software or characterizing your business and the means by which you acquired such data.
3. PLATFORM PACKS
(a) In connection with your use of the Software, SmartDeploy may make available through its website or through other means certain Platform Packs. The Platform Packs are provided by SmartDeploy as a service to help you achieve hardware independence faster and easier and are intended to be used only with the Software. These Platform Packs are templates that can be further customized through the Software, and can be used as a reference when creating your own Platform Packs. All intellectual property rights relating to the device drivers that are included in the Platform Packs are owned by third parties and SmartDeploy expressly does not provide you with any license or other rights in or to the device drivers. You are solely responsible for obtaining all licenses that may be required in connection with your intended use of the device drivers and for complying with the terms of those licenses. By downloading or obtaining any Platform Packs from SmartDeploy, you represent, warrant and certify to SmartDeploy that you own the computer model(s) for which you are downloading the Platform Packs, that you have already separately and properly obtained the applicable device drivers and all licenses that are required in connection with your intended use of those device drivers, and that you are in compliance with the terms of those licenses.
(b) Although SmartDeploy makes commercially reasonable efforts to test and control the quality of Platform Packs, it cannot guarantee the functionality of the Platform Packs or their contents. SmartDeploy also has no control over the quality of any third-party product, including, without limitation, any device drivers. ACCORDINGLY, THE PLATFORM PACKS AND THE DEVICE DRIVERS INCLUDED THEREIN ARE PROVIDED “AS IS” AND WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, AND SMARTDEPLOY HEREBY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES RELATING THERETO, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, PERFORMANCE, ACCURACY, RELIABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
4. INTELLECTUAL PROPERTY RIGHTS
You acknowledge that the Software and any copies that you are authorized by SmartDeploy to make are the intellectual property of and are owned by SmartDeploy and its suppliers. The structure, organization and code of the Software are the valuable trade secrets and confidential information of SmartDeploy and its suppliers, and you agree not to disclose such structure, organization and code for any purpose other than as approved by SmartDeploy in writing or disclose such structure, organization and code to third parties. 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 SmartDeploy retains the ownership of all patents, copyrights, trade secrets, trademarks and other intellectual property rights pertaining to the Software. You will take no actions which adversely affect SmartDeploy’s intellectual property rights in the Software. Trademarks shall be used in accordance with accepted trademark practice, including identification of trademark owners’ names. Trademarks may only be used to identify printed output produced by the Software, and such use of any trademark does not give you any right of ownership in that trademark. SMARTDEPLOY ENTERPRISE is a trademark of SmartDeploy. All other trademarks are the trademarks of their respective owners. Except as expressly stated above, this Agreement does not grant you any intellectual property rights in the Software or any other intellectual property of SmartDeploy.
You will pay all fees specified in any order forms or similar documentation under which you acquired your license rights in the Software (an “Order Form”), in each case, pursuant to the terms thereof. Except as otherwise specified herein or in an Order Form: (a) fees are based on the license rights purchased and not actual usage; (b) payment obligations are non-cancelable and fees paid are non-refundable; and (c) quantities purchased cannot be decreased during the relevant Contract Year.
6. LIMITED TRANSFER RIGHTS
Notwithstanding the foregoing, you may transfer all of your rights to use the Software to another person or legal entity provided that: (a) you also transfer each of this Agreement, the Software and all other software or hardware bundled or pre-installed with the Software, including all copies, updates and prior versions, and all copies of font software converted into other formats, to such person or entity; (b) you retain no copies, including backups and copies stored on a computer; (c) the receiving party is legally entitled to use the Software and is not a direct and material competitor of SmartDeploy; and (d) the receiving party accepts the terms and conditions of this Agreement and any other terms and conditions upon which you legally purchased a license to the Software. Notwithstanding the foregoing, you may not transfer education, pre-release, or not-for-resale copies of the Software. You may not transfer or assign the Software and/or this Agreement to another person or legal entity other than as authorized by this Section 6 and you acknowledge and agree that any such unauthorized transfer or assignment shall be null and void.
7. PRE-RELEASE PRODUCT ADDITIONAL TERMS
If the Software 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 Software is a pre-release version, does not represent a final product from SmartDeploy, 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 WITH ALL FAULTS, AND SMARTDEPLOY EXPRESSLY DISCLAIMS ANY WARRANTY OR LIABILITY OBLIGATIONS TO YOU OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY. WHERE LEGALLY LIABILITY CANNOT BE EXCLUDED FOR PRE-RELEASE SOFTWARE, BUT IT MAY BE LIMITED, SMARTDEPLOY’S TOTAL LIABILITY TO YOU OR TO ANY THIRD PARTY UNDER THIS AGREEMENT (AND THAT OF ITS SUPPLIERS) SHALL BE LIMITED TO THE SUM OF FIFTY DOLLARS (U.S. $50) IN TOTAL. You acknowledge that SmartDeploy has not promised or guaranteed to you that Pre-release Software will be announced or made available to anyone in the future, that SmartDeploy has no express or implied obligation to you to announce or introduce the Pre-release Software and that SmartDeploy 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 SmartDeploy 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 SmartDeploy and to abide by the terms of the license agreement for any such later versions of the Pre-release Software. If you provide any feedback or suggestions to SmartDeploy regarding the Pre-release Software, SmartDeploy will own all right, title, and interest in and to the feedback and/or suggestions. SmartDeploy will be entitled to use the feedback and/or suggestions without restriction, without compensation to you and without your prior approval. You hereby irrevocably assign to SmartDeploy all right, title, and interest in and to the feedback and/or suggestions and agree to provide SmartDeploy any assistance it may require to document, perfect, and maintain its rights in the feedback and/or suggestions.
8. WARRANTY AND LIMITATION OF LIABILITY
(a) Limited Warranty. SmartDeploy warrants that: (i) the Software will perform substantially in accordance with the SmartDeploy User’s Guide for the Software for a period of ninety (90) days from the date of receipt; and (ii) any support services provided by SmartDeploy shall be substantially as described in applicable written materials provided to you by SmartDeploy, and SmartDeploy support engineers will make commercially reasonable efforts to solve any problem issues. Some states and jurisdictions do not allow limitations on duration of a warranty, so the above limitation may not apply to you.
(b) Customer Remedies. SmartDeploy’s and its suppliers’ entire liability and your exclusive remedy shall be, at SmartDeploy’s option, either: (i) return of the price paid, if any; or (ii) repair or replacement of the Software that does not meet SmartDeploy’s Limited Warranty and which is returned to SmartDeploy with a copy of your receipt. This Limited Warranty is void if the failure of the Software has resulted from accident, misuse, unauthorized use, abuse or misapplication of the Software, including without limitation, any alteration or modification to the Software, from the operating environment in which the Software is being used, or from any defect in or failure of any third party software or hardware. Any replacement Software will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer.
(c) No Other Warranties. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SMARTDEPLOY AND ITS SUPPLIERS DO NOT MAKE AND HEREBY EXPRESSLY DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, 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. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHERS, WHICH VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION.
(d) Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SMARTDEPLOY OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, DIRECT, 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 SMARTDEPLOY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, SMARTDEPLOY’S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL BE LIMITED TO THE GREATER OF THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE PRODUCT OR US $50.00. HOWEVER, IF YOU HAVE ENTERED INTO A SMARTDEPLOY SUPPORT SERVICES AGREEMENT, SMARTDEPLOY’S ENTIRE LIABILITY REGARDING SUPPORT SERVICES SHALL BE GOVERNED BY THE TERMS OF THAT AGREEMENT. Because some states and jurisdictions do not allow the exclusion or limitation of liability, the above limitation may not apply to you. In such states and jurisdictions, SmartDeploy’s liability shall be limited to the greatest extent permitted by law.
(e) Infringement Claims. SmartDeploy 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 content contained in the Software infringes a copyright or violates an intellectual or proprietary right protected by United States law (“Claim”), but only to the extent the Claim arises directly out of the use of the Software. For purposes of clarity, SmartDeploy will have no obligation to indemnify, hold harmless, or defend you in connection any Claim to the extent such Claim would not have been brought but for the misuse, unauthorized use, abuse or misapplication by you of the Software, including without limitation, any alteration or modification to the Software, or from the use or combination of the Software with any third party software or hardware. You must notify SmartDeploy in writing of any Claim within ten (10) business days after you first receive notice of the Claim, and you shall provide to SmartDeploy at no cost with such assistance and cooperation as SmartDeploy may reasonably request from time to time in connection with the defense of the Claim. SmartDeploy shall have sole control over any Claim (including, without limitation, the selection of counsel and the right to settle on your behalf on any terms SmartDeploy deems desirable in the sole exercise of its discretion). You may, at your sole cost, retain separate counsel and participate in the defense or settlement negotiations. SmartDeploy 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 SmartDeploy’s legal counsel the Software is likely to become the subject of a Claim, SmartDeploy 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 SmartDeploy’s legal counsel the Claim, the injunction or potential Claim cannot be resolved through reasonable modification or licensing, SmartDeploy, 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 SmartDeploy for the use of the Software. THE FOREGOING CONSTITUTES SMARTDEPLOY’S SOLE AND EXCLUSIVE LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT.
9. TERM AND TERMINATION
This Agreement shall commence as of date on which you receive your license key for the Software from SmartDeploy, and shall continue for the period of the Contract Year for which you have purchased a license, unless earlier terminated as set forth in this Section. If you did not purchase a license and are using the Software on a trial or other promotional basis, your rights to use the Software shall expire as of the expiration of such trial or promotion, unless earlier terminated as set forth in this Section. This Agreement may be terminated: (a) by your giving SmartDeploy written notice of termination; or (b) by SmartDeploy, at its option, giving you written notice of termination: (i) if you commit a breach of this Agreement and fail to cure such breach within ten (10) days after notice from SmartDeploy; or (ii) if you cease to conduct business in the ordinary course or otherwise become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. 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 SmartDeploy may reasonably request to ensure that no copies of the Software remain in your possession or control.
10. AUDIT RIGHTS
SmartDeploy may retain administrative access to your account through the SmartDeploy Licensing Portal for purposes of auditing your compliance with the terms of this Agreement, including without limitation, your usage of the Software. SmartDeploy and/or its designees shall further have the right, upon reasonable prior notice to you, to audit and inspect your systems, Devices, and/or records for purposes of determining your compliance with this Agreement, which audit right, may include the right to access and inspect your facilities and copy any documents or records in connection with such audit. You agree to cooperate with SmartDeploy in connection with any such audit. If as a result of any audit conducted pursuant to this Section 10, SmartDeploy learns that the number of Target Computers deployed with Deployment Packages exceeds the total license count purchased, you will: (a) be responsible for all costs incurred by SmartDeploy in connection with the audit; and (b) be invoiced at MSRP rates for the support and licensing cost associated with the excess quantity of deployed Target Computers. Support is not pro-rated in overage cases.
11. GENERAL PROVISIONS
If there is a local subsidiary of SmartDeploy in the country in which the Software was obtained, then the local law of the jurisdiction in which the subsidiary is located shall govern this Agreement. Otherwise, this Agreement shall be governed by the laws of the State of Washington, USA, excluding its conflicts of laws principles. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (USA) do not apply to this Agreement. Any dispute between the parties that arises from or relates to this Agreement shall be brought and litigated in an appropriate state or federal court located in King County, Washington, USA. Each party irrevocably consents to the jurisdiction of such courts over them and waives any claim that such venue is an inconvenient forum. 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 SmartDeploy’s website for SmartDeploy and the address shown in SmartDeploy’s 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 of us 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 of us. 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 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 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. The parties knowingly and expressly consent to the foregoing terms and conditions.