End User License Agreement (EULA)
Updated: March 2017
1.1 Burst License: A license allowing Licensee to test the agreed User Load during one month per year;
1.2 Concurrent Users: Individuals operating the Software simultaneously;
1.3 Confidential Information: Any information the receiving party must reasonably understand to be confidential, which includes but is not limited to (i) any information of a disclosing party clearly marked as "confidential information", (ii) this End User License Agreement, the Software, its Documentation, and (iii) test results from the software. It does not include information that is (i) publicly available, or (ii) obtained independently without violation of this End User License Agreement, or (iii) obtained from third parties without restrictions on disclosure.
1.4 Control: The direct or indirect power to appoint the management;
1.5 Documentation: All on-line help files and written instruction manuals regarding the use of the Software;
1.6 Domain: A ”Windows Domain” as specified by Microsoft Corporation;
1.7 Effective Date: The execution date of the End User License Agreement;
1.8 End User License Agreement: The present document containing the terms and conditions for licenses of the Software, the annexes and any additional Product Order Forms;
1.9 Initial Term: The first period for which the license is agreed as per the Product Order Form;
1.10 Intellectual Property Rights: All rights designated as “Intellectual Property Rights” under any applicable law, including copyrights, trademarks, patents including all registrations and applications of such rights;
1.11 Licensee Related Parties: Licensee and any entity Licensee Controls, is Controlled by or is under common Control with Licensee.
1.12 Named Users: Individuals specified by name authorized to operate the Software;
1.13 Notice: Written document sent by post or courier with receipt confirmation, facsimile or e-mail. In case of e-mail only if the receiver explicitly and personally (so not automatically) confirmed the receipt of such e-mail by a reply e-mail.
1.14 Number Of Domains: The maximum number of concurrent Domains the Software may be used in;
1.15 Product Order Form: The standard form used by Licensor to agree to licenses with Licensees subject to this End User License Agreement. The header of this End User License Agreement is also a Product Order Form;
1.16 Site: A physical location as specified in a Product Order Form where a copy of the central processing core, at least containing the functions checking the validity of the Software is installed;
1.17 Software: The object code of the computer program(s) specified in a Product Order Form including any updates and versions provided pursuant to the Support annex to this End User License Agreement;
1.18 Software Key: A code provided by Login required to initiate the operation of the software during installation and that limits the functionality of the Software to the agreed scope of the license;
1.19 Term: The Initial Term of the license as agreed in the Product Order Form starting at the Effective Date and every subsequent year thereafter until termination;
1.20 User Load: The maximum number of desktops that may be simulated per simulation under the agreed license;
2. Rights of Licensee
2.1 Subject to the terms and conditions set forth in this End User License Agreement, Login grants to Licensee and on its behalf its employees, directors, officers, representatives and service providers to Licensee for the Term a non-exclusive, non-transferable right to:
(i) use the Software and the Documentation (as attached hereto as Annex 2) within the limits provided for in the Product Order Form solely for Licensee Related Parties’ internal business needs; and to
(ii) copy the Software for backup or archival purposes and reproduce the Documentation for Licensee's own internal use; and to
(iii) receive from Licensor Software Keys to enable the authorized use of the Software during a new installation;
2.2 Login reserves all rights not expressly granted to Licensee. Licensee's use, as described above, does not include the right to use the Software for external purposes, including but not limited to the provision of processing services to third parties, commercial timesharing, rental or sharing arrangements, or on a "service bureau" basis or use of the software (including but not limited to test results obtained with the Software) for external marketing or sales purposes. Licensee shall not be granted any other rights than those specified in this End User License Agreement.
3. License Restrictions
Licensee agrees not to:
(i) Assign, lease, transfer, sublicense, or encumber any portion of the Software or Documentation;
(ii) Decompile, disassemble, or reverse engineer the Software, in whole or in part except where, and to the extent, allowed by applicable mandatory law;
(iii) Provide, disclose, divulge or make available to, or permit use of the Software by persons other than to Licensee Related Parties;
(iv) Exceed the use of the Software over the number of licenses set forth in valid Product Order Forms, or
(v) Write or develop derivative work or any other program based on Login's Confidential Information. In the event Licensee breaches this End User License Agreement by writing or developing derivative work or any other program based on Login’s Software and/or Confidential Information, Licensee agrees that all IP rights on such derivative work belong with Login and accepts the obligation to execute all acts required to transfer these IP rights to Login.
4. Support and services
4.1 Licensee will be entitled to receive support in accordance with Login's Support Schedule attached hereto as Annex 1, which forms an integral part of this End User License Agreement. This right is subject to payment of the appropriate support fee in case support fees have been separately agreed.
4.2 Licensee must request any services agreed and paid to be performed within one year after the Effective Date of the relevant Product Order Form.
All rights, title and interest in the Software and the Documentation, and any modifications thereof, shall remain vested in Login at all times. This End User License Agreement does not constitute a transfer to Licensee of any title or Intellectual Property Rights to the Software, or modifications thereof or the Documentation, or of any Intellectual Property Rights relating thereto.
6.1 Login warrants that the Software is substantially compliant with the Documentation for a period of three (3) months as from the Effective Date (“Warranty Period”). Non-compliant Software will be corrected or replaced as appropriate or, if neither of the above is commercially practicable, the End User License Agreement will terminate with respect to the non-compliant software or part thereof and Licensee will be refunded the license fees paid for such Software or part thereof.
6.2 The warranty is subject to the following conditions:
(i) the Software has properly been installed and used at all times in accordance with the Documentation;
(ii) Licensee has given prompt written notice to Login of any non-compliance; and
(iii) no modifications, alterations or additions have been made to the Software.
6.3 The foregoing are Licensee's sole and exclusive remedies under this End User License Agreement. The warranty is made to and for the benefit of Licensee only.
6.4 EXCEPT AS OTHERWISE SET FORTH IN THIS END USER LICENSE AGREEMENT AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE AND DOCUMENTATION ARE PROVIDED TO LICENSEE "AS IS", AND, EXCEPT AS OTHERWISE SETFORTH HEREIN, LOGIN MAKES NO EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THEIR FUNCTIONALITY, CONDITION, PERFORMANCE, OPERABILITY OR USE. WITHOUT LIMITING THE FOREGOING, LOGIN DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7. Limitation of liability
Except for the Indemnification by Login for claims by third parties for breaches of Intellectual Property Rights as explicitly provided for in this End User License Agreement, reckless misconduct, gross negligent, willful misconduct and/or fraud the maximum liability of Login to Licensee Related Parties, in aggregate for this End User License Agreement, shall be limited to the amount of fees paid to Login by Licensee under this End User License Agreement, or if the following relevant fixed amount is the lesser amount, in case prices were agreed for the first Product Order Form in USD, a fixed amount of USD 50.000 and else a fixed amount of Euro 50,000,. This Limitation of Liability shall apply to any and all causes of action brought by Licensee Related Parties against Login, including but not limited to claims based on breach or repudiation of contract, warranty or tort.
Except as provided in the Payments section, a party who fails to perform any obligation under this End User License Agreement by the date provided in or under the End User License Agreement, shall only be in default if the other party has given it written Notice of default and no performance has taken place within the reasonable period specified in the Notice.
9. Confidential Information
The receiving party shall maintain the confidentiality of the Confidential Information and will not use or disclose such Confidential Information without the prior written consent of the disclosing party. A party shall not disclose any Confidential Information to the other party other than as required for the execution of this End User License Agreement. At any time, upon the disclosing party’s request, the receiving party shall return to the disclosing party or destroy all Confidential Information in its possession, with the exception of Confidential Information the receiving party has a valid and specific license for or Confidential Information the receiving party is required to retain by law or regulation. Disclosure of Confidential Information required by applicable law, regulation or a court order does not constitute breach of the confidentiality obligation of this clause. However, if the law, regulation or the court order does not prevent this, the party required to disclose shall immediately inform the other party of the requirement to disclose and will follow any reasonable instructions of the other party in order to minimize the risks of the disclosure in which case the other party will indemnify the party required to disclose for its costs of cooperation.
In consideration of the rights granted herein, Licensee agrees to pay Login the Fees specified in the applicable Product Order Forms. Except as otherwise provided in this End User License Agreement, the Fees are non-cancelable and non-refundable and due and payable in full immediately. All charges and fees provided for in this End User License Agreement do not include any VAT, service taxes, withholding taxes, duties, or similar charges imposed by any government and Licensee agrees to reimburse Login for such taxes and charges (if any). Licensee may not set off an obligation to pay any charges or fees against any claim on Login or suspend payment on any ground.
Neither this End User License Agreement nor any rights under this End User License Agreement may be assigned or otherwise transferred by Licensee, in whole or in part, whether voluntary or by operation of law, including by way of sale of assets, merger or consolidation, without the prior written consent of Login which will not be unreasonably withheld or delayed. Subject to the foregoing, this End User License Agreement will be binding upon and will inure to the benefit of the Parties and their respective successors and assigns.
12. Term and Termination
12.1 This End User License Agreement commences on the Effective Date of the first Product Order Form and will remain in force until the last Product Order Form is expired or terminated in accordance with this section. Login may forthwith terminate this End User License Agreement and/or all or any related Product Order Forms if:
(i) Licensee breaches this End User License Agreement and such breach is not cured within ten (10) working days after Licensee has received Notice of such breach; or
(ii) if Licensee terminates its business activities or becomes insolvent, is unable to pay its debts as they mature, makes an assignment for the benefit of creditors or becomes subject to direct control of a trustee, receiver or similar authority.
12.2 No termination on the basis of this provision will entitle Licensee to a refund of any portion of the fees paid or due to Login.
12.3 After the Term this End User License Agreement will be extended automatically for one more year unless either party has given written Notice to the other party at least 30 days before the end of the then current Term that it does not wish to extend the End User License Agreement. The yearly fee as per the then current list price will be invoiced 30 days prior to the moment the End User License Agreement is extended and will be due at the moment the End User License Agreement is extended.
12.4 The following clauses survive termination: 1, 5, 7, 9, 10, 12, 13, 15, 16, 17, 18, 19, 20, 21, 22. Upon termination or expiration of this End User License Agreement, Licensee agrees to forthwith discontinue any use of the Software, related Documentation, Confidential Information and derivative works or copies thereof, and will destroy all copies thereof in its possession except to the extend the receiving party is required to retain such Confidential Information by law or regulation. Licensee agrees to supply Login with a certificate signed by an executive officer of Licensee verifying that this provision has been complied with at Logins request.
13. Infringement Indemnification
13.1 Login, at its own expense, shall defend and hold Licensee Related Parties harmless against any action asserted against Licensee Related Parties in member states of the TRIPS Agreement to the extent that it is based on a claim that use of the Software under this End User License Agreement infringes any Intellectual Proprietary Right of any third party.
13.2 Login will provide this indemnification under the conditions that the affected Licensee Related Parties shall promptly provide Notice to Login of any such claim and the Licensee Related Parties will fully authorize Login to represent them in their defense. If as a result of any claim of infringement against any Intellectual Proprietary Right of any third party, Licensee is enjoined from using the Software, or if Login believes that the Software is likely to become the subject of a claim of infringement, Login, at its option and expense will procure the right for Licensee to continue to use the Software, or replace or modify the Software so as to make it non-infringing, or require Licensee to immediately discontinue the use of the (infringing part of the) Software against return of the (part of the) fees paid for the relevant (part of the) Software.
Any waiver of the provisions of this End User License Agreement, or rights or remedies of either party must be provided by Notice. Failure, negligence or delay to enforce any such rights or remedies at any time, will not be construed as a waiver and will not in any way affect the validity of the whole or any part of this End User License Agreement or prejudice such party's right to make subsequent action.
If any provision in this End User License Agreement is found to be invalid, unlawful or unenforceable to any extent, the Parties will in good faith agree to such amendments that will preserve, as far as possible, the intentions expressed in this End User License Agreement. If the Parties fail to agree on such an amendment, such invalid provision will be severed from the remaining provisions, which will continue to be valid and enforceable to the fullest extent permitted by applicable law.
This End User License Agreement may be executed in two or more counterparts, each of which will be considered an original but all of which together will constitute one agreement.
17. Injunctive Relief
Licensee acknowledges and agrees that it would be difficult to fully compensate Login for damages resulting from the breach or threatened breach of this End User License Agreement or of its Intellectual Property Rights and, accordingly, that Login will be entitled to seek temporary and injunctive relief, including temporary restraining orders, preliminary injunctions and permanent injunctions, to protect its rights. This provision with respect to injunctive relief will not, however, diminish any right to claim and recover damages.
18. Standard terms
No terms, provisions or conditions of any purchase order, acknowledgement or other business form that Licensee may use in connection with the acquisition or licensing of the Software and related services will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this End User License Agreement, regardless of any failure of Login to object to such terms, provisions or conditions.
Notices are deemed to have been received on the receipt date in the receipt confirmation. Notices must be addressed to the addresses of the parties provided in the header hereof. The address may be changed by Notice.
20. License Control Procedure
In case Login demonstrates to Licensee that it has reason to suspect that the Software is used by Licensee outside the limits of the license(s), Licensee will either regularize the situation by purchasing the required licenses against the then current list price, or demonstrate to Login that the suspicion is not justified. In case Login is not satisfied with the demonstration of Licensee, Parties will appoint a neutral third party to perform an audit to determine if the Software is used within the scope of the license(s). Licensee will give that third party access and assistance as may be necessary to perform this audit. The audit shall be conducted at Login's expense unless the audit establishes that Licensee's use of the Software exceeds the authorized use in which case Licensee will bear the cost of the audit. Any use in excess will be regularized against then current license list prices and the balance will be immediately due and payable.
21. Data Exchange for Product Management
Licensee agrees to the fact that the Software will send test data to Login periodically. The data sent will be limited to aggregate performance data and will not contain any personal data. Login will treat the received data as Confidential Information.
22. Applicable Law
22.1 In case this End User License Agreement is signed by a Licensee not located in the United States of America, the law of The Netherlands shall govern, construe and enforce all of the rights and duties of the parties arising from or relating in any way to the subject matter of this this End User License Agreement and all related Product Order Forms.. The Vienna Convention on the International Sale of Goods shall not apply. Any dispute arising out of or in connection with this End User License Agreement that is not amicably resolved between the Parties will be submitted to the district court in Amsterdam, The Netherlands.
22.2 In case this End User License Agreement is signed by a Licensee located in the United States of America, the law of the state of Massachusetts shall govern, construe and enforce all of the rights and duties of the parties arising from or relating in any way to the subject matter of this this End User License Agreement and all related Product Order Forms. The Vienna Convention on the International Sale of Goods shall not apply. Any dispute arising out of or in connection with this End User License Agreement that is not amicably resolved between the Parties will be submitted to the courts in Boston, Massachusetts, The United States of America.
Annex 1 - Support Schedule
The following Support terms contained in this Schedule are part of the End User License Agreement.
1.1 Update: a set of the Software in which detected shortcomings are being remedied, i.e. V4.0.a>> V4.0.b.
1.2 Version: a set of the Software in which in addition to possible corrections of detected shortcomings, small functional enhancements have been included, i.e.V4.1>> V4.2
1.3 Release: a set of the Software in which substantial new –but successor- functionalities or other substantial changes are introduced, i.e. V4>>V5.
1.4 Schedule: this Support Schedule.
1.5 Support: (a) the provision, of generally available Updates and new Versions of the Software and the related on-line Documentation, (b) assistance during Service Hours by telephone or internet with respect to the Software including: (i) clarification of functions and features of the Software; (ii) clarification of the Documentation; (iii) guidance in the operation of the Software; and (iv) error verification, analysis and reasonable correction efforts by telephone and/or internet and (c) if contracted, the provision of Critical Incident Support for the Software.
1.6 Service Hours: Logins usual office hours of every Login VSI support center as provided for on the Login VSI website.
1.7 Support Term: In case a yearly subscription license, the Term of the license, and in case of a perpetual License a period of twelve (12) months from the Effective Date and any extension thereof in accordance with article 3.1 of this Schedule.
1.8 Time and Material Fee: the hourly rate that will be charged to the Licensee for the actual work performed by Login's staff in providing professional services other than Support; the applicable fees will be agreed separately;
2 Support Services
2.1 Support is available during Service Hours. Licensee can use each of the available support centers. Support is provided in the English language.
2.2 The Software will be supported according to the following schedule: (a) a Release will be supported for a period of twelve (12) months after the commercial release of the next Release, but no longer than 4 years and provided always that Licensee makes use of the last Version and Update of the first mentioned Release; (b) a Version will be supported for a period of six (6) months after the commercial release of the next Version, provided always that Licensee makes use of the last Update of the related Version; and (c) an Update will be supported for a period of one (1) month after the commercial release of the next Update.
2.3 The Support fee does not include services requested as a result of, or with respect to causes, which Login cannot reproduce on unmodified Login Software. If and when available, these services will be billed to Licensee at Login's then current rates. Causes which are not attributable to Login include but are not limited to customizations and improper installation by Licensee or Licensee's lack of compliance with section 2.4.2 below.
2.4 Login's provision of Support to Licensee is subject to the following:
- Licensee will provide Login with necessary access to Licensee's personnel and equipment during Service Hours. This access includes the ability to remotely access the equipment on which the Software is operating. Login shall at all times be bound by the Confidentiality provisions of the End User License Agreement, and will only disclose information within Login to those individuals who have to know in order to provide assistance in solving Licensee's problem.
- Licensee will adopt and utilize all Updates, Versions and enhancements offered to Licensee previously and adhere to the Support service policy statements that might be released from time to time.
- Licensee will provide supervision, control and management of the use of the Software. In addition, Licensee will implement procedures for the protection of information and the implementation of backup facilities for the event of errors or malfunction of the Software or equipment.
- Licensee will document and promptly report all detected errors or malfunctions of the Software to Login. Licensee will take all steps necessary to carry out procedures for the rectification of errors or malfunctions within a reasonable time after such procedures have been received from Login.
- Licensee will maintain a current backup copy of all programs and data.
- Licensee will properly train its personnel in the use and application of the Software.
- If requested, Licensee will regularly provide sufficient data so as to facilitate testing of upgrade scripts, performance analysis and the like.\
2.5 Licensee will appoint up to two (2) individuals within each of Licensee's Sites who have in-depth knowledge of the operation of the Software to serve as primary contacts between Licensee and Login regarding the registry and report of Support cases. All of Licensee's Support inquiries will be initialized through these contacts. Licensee will have the right to appoint additional individuals to serve as primary contacts upon the receipt by Login of the then Support fees. Support services are limited to reasonable use by Licensee as described and updated from time to time on the Login VSI website.
2.6 If the Parties agree that a specific situation requires Support at Licensee's Site, Login will provide on-site support on a time and material basis at the then current rates. For on-site support reasonable traveling expenses and related costs for board and lodging as pre-approved in writing by Licensee, will be reimbursed to Login.
2.7 This Schedule reflects Login's terms and conditions with respect to the provision of Support in force as of the Effective Date. Licensee acknowledges that these terms are subject to change, however any changes will be subject to a 30 day prior written notice and may be introduced under the condition that the level of Support provided under this End User License Agreement will not diminish in quality.
2.8 Licensee acknowledges and agrees that the employees and consultants of Login who perform services pursuant to this End User License Agreement are a valuable asset to Login and are difficult to replace. Accordingly, Licensee hereby agrees that during the Support Term and for a period of twelve (12) months thereafter it will not – without Login's prior written consent – directly or indirectly offer employment as an employee, independent contractor, or consultant to any Login employee or consultant who performs any services hereunder.
3. Term, Termination and Lapse
3.1 Paragraphs 3.1 until 3.4 are for perpetual licenses only. Login's provision of Support to Licensee pursuant to this End User License Agreement will commence on the Effective Date and will continue for the first Support Term. The Support Term will automatically be extended with a twelve (12) month period, unless (i) the End User License Agreement is terminated by or before the end date of the then current Support Term, in which case the Support Term ends on the date of termination of the End User License Agreement; or (ii) Licensee has provided Login with a written termination Notice of its intention not to renew Support at least thirty (30) days prior to the expiration of the then current Support Term. Termination of Support or failure to renew will not affect the End User License Agreement.
3.2 If Licensee allows Support to lapse, and does not receive Support for a period of time, Login may thereafter renew Support at Licensee's request. In the event of renewal, Licensee will pay 150% of the then current Support fee pro rata over the period of lapse, plus the fee for the year following the moment of renewal. Subject to the notice period, Licensee may terminate Support at any time. Login may terminate Support upon Notice if Licensee breaches this Support Schedule or the End User License Agreement and fails to correct the breach within 30 days following the Notice specifying the breach.
3.3 The yearly fee for the first Support Term, if any, is as indicated in this End User License Agreement. Yearly fees for a contracted Support Term are non-cancellable and non-refundable. For any subsequent Support Term, the Support fee will be due and payable thirty (30) days before the commencement of such subsequent Support Term.
3.4 Login may modify the yearly fee for any Support Term. However, for a period of three (3) years from the Effective Date the annual increase of the Support fee for current programs for each subsequent Support Term will not be more than 3%.
3.5 For subscription licenses (Licenses with an expiration date) the fees are including Support and Maintenance and Support. Licensee is entitled to Maintenance and Support for the same period as it is entitled to use the Software.
Annex 2 - Documentation
Login Admin Guides:
To get started with Login VSI we recommend reading the Admin Guide available at http://www.loginvsi.com/documentation. Here you can find all the basics but also advanced configuration examples.
To get started with Login AM we recommend reading the Admin Guide available at http://www.getautomationmachine.com/en/support/documentation. Here you can find all the basics but also advanced configuration examples.
Login VSI also created a set of instruction video's. You can find these video's on our YouTube channel: www.youtube.com/LoginVSI or access them directly via the wiki.
Login AM also created a set of instruction video's. You can find these video's on our YouTube channel: http://www.youtube.com/user/LoginMachine/ or access them directly via the wiki.