7.1. ソフトウェア利用許諾契約(EULA)¶
ERICOM SOFTWARE LTD. END USER LICENSE AGREEMENT Version 13.2
IMPORTANT - CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS (these “Terms”) BEFORE OPENING ANY OF THE PACKAGES CONTAINING ELECTRONIC MEDIA, SUCH AS A DISK PACK, ETC., OR DOWNLOADING OR INSTALLING THE ACCOMPANYING SOFTWARE (the “Software”) OR ANY PART THEREOF.
THESE TERMS CONSTITUTE THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU, OR THE ENTITY ON BEHALF OF WHICH YOU ARE INSTALLING THE SOFTWARE (「Licensee」), AND ERICOM SOFTWARE LTD. (「Ericom」), WHICH SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL, OR WRITTEN, AND ANY OTHER COMMUNICATION RELATING TO THE SUBJECT MATTER OF THESE TERMS.
By opening any such package, by selecting the 「I Accept」 button below, or by downloading or installing the Software, or any part thereof, Licensee agrees to be bound by these Terms. If Licensee selects 「I Do Not Accept,」 the download process will not proceed. Do not open any such package, select 「I Accept,」 download or install the Software, or any part thereof, until Licensee has carefully read, understood, and agreed to these Terms. If Licensee does not wish to agree to these Terms, do not download or install the Software, in whole or in part, and, if Licensee received the Software on electronic media, promptly return the entire shipment with the electronic media unopened or uninstalled and your money will be refunded. If Licensee opens the accompanying Software, downloads, installs, or uses it, Licensee will be acquiring a license to use the Software in object code form, including any related printed or electronic documentation (collectively the “Program”), only in accordance with these Terms, and Licensee will be considered to have accepted and agreed to these Terms.
In the event that a system integrator, consultant, contractor, or other party opens the Software media or downloads or installs the Software on Licensee’s behalf prior to Licensee’s use of the Software, such party will be deemed to be Licensee’s agent acting on Licensee’s behalf, and Licensee will be deemed to have accepted all of the Terms conditions set forth herein as if Licensee had opened the media or downloads or installed the Software.
Notwithstanding the foregoing, if Licensee received the Software as part of a negotiated written license agreement with Ericom, the terms of such negotiated license agreement shall supersede these Terms to the extent they are inconsistent. The terms and conditions set forth in the Ericom Software License Certificate (hereafter, the “ESLC”), if delivered to Licensee, are incorporated in these Terms by reference. If any terms or conditions set forth in the ESLC conflicts with these Terms, the ESCL shall govern.
Additionally, the Program may contain or be derived from portions of materials provided by third parties (“Third Party Materials”). Except as expressly set forth in Section 2 below, such Third Party Materials included with the Program may be subject to other terms and conditions, which are typically found in a separate license agreement or a “read me” or other file located in or near such materials. Such third parties, including but not limited to those referenced in Section 2 below, may enforce any of the provisions set forth in these Terms, to the extent such Third Party Materials are affected. Additionally, Licensee acknowledges that the availability and right to license any Third Party Materials to Licensee shall cease automatically, without liability on Ericom’s part, upon the discontinuation or termination of the provision thereof to Ericom.
Except as specifically permitted in the previous paragraphs, no provisions of purchase orders or in any other documentation employed by or on behalf of either party in connection with these Terms, regardless of the date of such documentation, will affect these Terms, even if such document is accepted by the receiving party, with such provisions being deemed deleted.
1. GRANT OF LICENSE. Subject to payment of all applicable fees, Ericom grants to Licensee a personal, non-exclusive, nontransferable license to use the Program in one of the following manners during the Term (as defined below), in accordance with these Terms: (i) For the purpose of evaluating the Program for a limited period of thirty (30) days, which period may be extended at Ericom’s sole discretion upon your request (the “Evaluation Period”), Ericom may insert in each copy of the Program a mechanism to make the Program inoperable after a specified period of time. At the end of the Evaluation Period, Licensee will either return the Program or delete the Program from Licensee’s Device, or if Licensee wishes to continue using the Program, Licensee must pay the applicable fee for a license for the Program under subsections (ii) or (iii) below. Additionally, Licensee’s continued use of the Program after the Evaluation Period shall be subject to these Terms; or (ii) If Licensee has not received an ESLC, then Licensee may use the Program on a single Device to be accessed by a single end user at a time; or (iii) To the extent authorized by Ericom as set forth in the ESLC, which also lists the serial number to be used for installation and is delivered to Licensee by mail or email. The Ericom authorization set forth in the ESLC will include an authorization to use the Program: a. On a limited number of Single User Devices (as defined below) as designated in the ESLC (a “User Device License”); or b. On a Multi-User Device (as defined below) to be accessed by a limited number of end users as designated in the ESLC (a “Server Device License”). The aggregate number of end users that may access or otherwise utilize the services or functionality of the Program may not exceed the number designated in the ESLC; or c. By a limited number of (a) Single User Devices and (b) end users of each Multi-User Device, concurrently utilizing the Software at any given time, as designated in the ESLC (a “Concurrent User License”);or d. By a limited number of (a) Single User Devices and (b) end users of each Multi-User Device, in the aggregate, as designated in the ESLC (a “Device License”); or e. By a limited number of individual end users as designated in the ESLC, each as specifically named in the Software (a “Named User License”); or f. By the number of Host Sessions open at any given time as designated in the ESLC (a “Server Session License”). “Host Session” means a connection from a Device (as defined below) to a central system using the Program; or g. As otherwise set forth in the ESLC.
Notwithstanding the foregoing, if Licensee is granted a Device License or Named User License (as identified in the ESLC), the allocation and identification of the individual Device or the individual end user will be retained for a minimum of 30 days from the last use of the Software before the allocation and identification of such Device or end user, as the case may be, can be moved or transferred to a different, separate, and unique Device/end user. Additionally, Named User accounts are individualized and may not be shared or used by anyone other than the Licensee employee or User (as defined below) to whom the Named User account is assigned. The identification of Named Users must be unique to an individual and may not be of a generic nature.
“Device” means hardware that receives, processes, and presents information, including, but not limited to, a computer, workstation, terminal, handheld PC, Personal Digital Assistant, 「smart phone,」 or terminal server. “Single User Device” means a Device to be utilized by a single interactive user at any given time. “Multi-User Device” means a Device to be utilized by more than a single interactive user at any given time.
- ADDITIONAL LICENSING RIGHTS AND REQUIREMENTS. Licensee may be required to activate the Software in order to utilize it. To activate the Software, Licensee will be required to provide Ericom (directly or indirectly) with the Software’s initial license key and the serial number from the ESLC. Licensee may make one (1) copy of the Software solely for back-up purposes; provided, Licensee reproduces the Software’s copyright notices and any other legends of ownership on each copy, or partial copy.
Where Licensee authorizes an individual to access and use the Program for Licensee’s own business purposes who is not a Licensee employee (a “User”) (i) Licensee shall be responsible for ensuring that any such User fully complies with these Terms as they relate to the use of the Program on the same basis as applies to Licensee; (ii) use by such User shall only be in relation to Licensee’s business purposes as restricted herein; (iii) such access and use does not represent or constitute an increase in the number of licenses provided hereunder; and (iv) Licensee shall remain fully liable for any and all acts or omissions by such User related to these Terms.
Additionally, Licensee may sub-license the use of the Program to third party outsourcing or facilities management contractor to operate the Software on Licensee’s behalf; provided, that (i) Licensee delivers written notice to Ericom; (ii) Licensee shall be responsible for ensuring that any such contractor fully complies with these Terms as they related to use of the Program on the same basis as applies to Licensee; (iii) such use is only in relation to Licensee’s business purposes as restricted herein; (iv) such use does not represent or constitute an increase in the number of licenses provided hereunder; and (v) Licensee shall remain fully liable for any and all acts or omissions by the contractor related to these Terms.
Additionally, Licensee may not use third party software licensed under these Terms and integrated with the Software in a standalone or full use manner, with data not solely generated by the Software, or to target or source other than the Software.
- LICENSE EXCLUSIONS. Licensee may not make any use of the Program in whole or in part that is not expressly permitted by these Terms. Except as expressly set forth in the Terms or as set forth in the ESLC, Licensee shall not: (i) copy, modify, reverse engineer, decompile, disassemble, or otherwise translate all or any portion of the Program; (ii) modify or disable any Software licensing or control features; or (iii) distribute, disclose, market, rent, lease, sublicense, or transfer to any third party the Program or use the Program in any service bureau arrangement. Licensee shall take no action designed to defeat the operation of any security measure incorporated in the Software. No license, right, or interest in any Ericom trademark, trade name or service mark is granted hereunder.
- AUDIT. Ericom may, at its expense, audit no more than once annually the number of copies of the Program in use by Licensee (directly or indirectly). Any such audit shall be conducted during regular business hours at Licensee’s premises and shall not unreasonably interfere with Licensee’s business activities. If Licensee (including all Users) is using a greater number of copies of the Program than that indicated in the ESLC, Licensee shall pay the applicable fees for such additional number of copies of the Program within thirty (30) days of invoice plus interest of the lower of one and one-half percent (1.5%) per month and the highest permitted by local law from the 1st day of use, with such underpaid fees being the license and related support fee as per Ericom’s then current, country specific, base price for the Program. If underpaid fees are in excess of five percent (5%) of the value of the fees paid under these Terms, then Licensee shall also pay Ericom’s reasonable costs of conducting the audit.
- SUPPORT. These Terms do not give Licensee any rights to any updates, upgrades, modifications, or other revisions to the Program or the right to receive professional services. Licensee may elect to purchase support or other professional services and updates for the Program by contacting Ericom or an Ericom authorized partner and paying the applicable fee. Any and all updates, modifications, or other revisions to the Program delivered to Licensee shall be included in the definition of “Program” and shall be governed by these Terms.
- OWNERSHIP. Licensee hereby acknowledges and agrees that these Terms grant Licensee a license to the Program and in no way is a sale of all or any part of the Program. Ericom (or its third party licensors) retains all title, right, copyright (and any other applicable intellectual property right), and interest in and to the Program, including all documentation, translations, enhancements, improvements, or other modifications made to or derived from the Program, which is protected by intellectual property laws and international treaty provisions.
- NON-DISCLOSURE. Licensee acknowledges that the Program contains confidential and proprietary information and trade secrets of Ericom and will keep any confidential information contained in the Program confidential and under access and use restrictions sufficient to protect copying, use or disclosure thereof which violates these Terms. Such restrictions will be at least as stringent as those applied to Licensee’s most valuable confidential and proprietary information. Licensee agrees to be responsible for any unauthorized disclosure, use, or copying of the Program by any person to which Licensee grants access to the Program.
- PUBLICATION. Licensee consents to written and oral disclosure by Ericom of Licensee’s name as an end user of the Software in a factual listing of Ericom’s customers (with or without a list of the category of Software licensed by Licensee) to be published within marketing and promotional materials, in presentations, on trade show signs and materials, on Ericom’s website, and to financial and industry analysts. Ericom will seek Licensee’s prior written authorization for use of Licensee’s name for promotional activities beyond the foregoing.
- INFORMATION COLLECTION. The Software may contain technological features designed to prevent unlicensed use of the Software and retrieve data such as IP address, serial number, Software name and version, mac address, operating system, and server uptime to detect improper use of the Software and develop generic statistical information on Software use. By installing, accessing, or using the Software, Licensee grants Ericom and its subsidiaries the right to collect, store, transfer, and use this information (and other information that Licensee elects to provide to Ericom in connection with Licensee’s use of the Software) solely to prevent unlicensed use of the Software and to improve Ericom’s products or to provide customized services and technologies to Licensee.
- WARRANTY. Licensee is entitled to Ericom’s 30-day free warranty from the date that Licensee acquired Licensee’s initial copy of the Program. For the period ending thirty (30) days from the date Licensee receives Licensee’s initial copy of the Program, Ericom warrants that (i) the media on which Ericom has supplied the Program is not defective and the Program is properly recorded on it; and (ii) the Software functions substantially as described in the accompanying user manuals. Notice of breach of the 30-day free warranty must be received within the warranty period. Licensee’s sole and exclusive remedy under this limited warranty is to return the Program for replacements within the warranty period, and if the problem persists following such replacement, to require full refund of license fees paid hereunder; provided, Licensee purges all copies of the Program from all computer systems on which it was stored and return to Ericom all physical copies of the Program. Ericom shall have no responsibility for the Program and this warranty shall be void if (i) the Program has been altered in any way; (ii) the problem arises from use of the Program other than as intended as set out in the user manuals; or (iii) the problem arises out of use of the Program in conjunction with software or hardware for which it is not intended to be used as set out in the user manuals.
THE FOREGOING LIMITED WARRANTY STATES THE SOLE AND EXCLUSIVE REMEDIES FOR ERICOM’S OR ITS LICENSORS’ BREACH OF WARRANTY. OTHER THAN THE FOREGOING LIMITED WARRANTY AND FOR ANY WARRANTY TO THE EXTENT TO WHICH THE SAME CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE IS ASSUMED BY LICENSEE. ERICOM AND ITS THIRD PARTY LICENSORS DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SOFTWARE, NON-INFRINGEMENT, AND THAT THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. NO ERICOM AGENT OR RESELLER IS AUTHORIZED TO MODIFY, EXTEND, OR ADD TO THIS WARRANTY ON BEHALF OF ERICOM.
NOTWITHSTANDING ANYTHING IN THIS SECTION 10, THIRD PARTY MATERIALS ARE LICENSED “AS IS” WITHOUT WARRANTY OF ANY KIND, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE.
- LIMITATION OF LIABILITY. THE ENTIRE RISK, AS TO THE RESULTS AND PERFORMANCE OF THE PROGRAM, IS ASSUMED BY LICENSEE TO THE GREATEST EXTENT PERMISSIBLE BY APPLICABLE LAW. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT (INCLUDING STRICT LIABILITY OR NEGLIGENCE), CONTRACT, OR OTHERWISE, SHALL ERICOM, ITS AGENT, REPRESENTATIVES OR LICENSORS BE LIABLE TO LICENSEE, ANY USER, OR ANY OTHER PERSON OR ENTITY FOR ANY LOSS OF USE, REVENUE OR PROFIT, LOST OR DAMAGED DATA, OR OTHER COMMERCIAL OR ECONOMIC LOSS OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES ARE FORESEEABLE. THE MAXIMUM AGGREGATE LIABILITY OF ERICOM AND ITS AGENTS, REPRESENTATIVES AND LICENSORS IN ANY CONNECTION WITH THESE TERMS OR THE PROGRAM, WHETHER IN TORT (INCLUDING STRICT LIABILITY AND NEGLIGENCE), CONTRACT, OR OTHERWISE SHALL NOT EXCEED THE LICENSE FEES PAID BY LICENSEE UNDER THESE TERMS WITHIN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE ACCRUAL OF SUCH CLAIM, IF ANY.
THIS LIMITATION DOES NOT APPLY IN THE CASE OF PERSONAL INJURY OR DEATH, IF AND TO THE EXTENT REQUIRED BY APPLICABLE LAW.
- TERM; TERMINATION. Unless otherwise terminated as set forth below, these Terms are effective (i) until the end of the Evaluation Period, if Licensee has been granted an evaluation license only, (ii) until the end of the term as set forth in the ESLC, or (iii) if no term is expressly set forth in the ESLC, perpetually (the “Term”). Licensee may terminate these Terms at any time by destroying the Program together with all copies in any form. Ericom may terminate these Terms and the license granted pursuant thereto if Licensee breaches any of the Terms or fail to pay the designated fee for the license of the Program. Upon expiration or termination of these Terms for any reason, Licensee’s right to use the Program will stop immediately and Ericom may terminate Licensee’s ability to use the Software, and Licensee shall return all copies of the Program to the place of purchase, return the original ESLC, if received by Licensee, and/or permanently delete all copies of the Program from Licensee’s servers, computers, and/or other Devices. If Licensee continues using the Software after that, Licensee could be held liable for infringement of intellectual property, which could result in significant damages being assessed against Licensee or other legal remedies.
Additionally, Licensee acknowledges that the availability and right to license any Third Party Materials to Licensee shall cease automatically, without liability on Ericom’s part, upon the discontinuation or termination of the provision thereof to Ericom.
Any provisions of these Terms that, in order to fulfill the purposes of such provisions, need to survive the termination or expiration of these Terms, shall be deemed to survive for as long as necessary to fulfill such purposes.
13. GOVERNING LAW/JURISDICTION AND ARBITRATION These Terms and the interpretation of these Terms will be governed by and construed in accordance with the laws of the State of New Jersey, without regard to its conflicts of laws principles and specifically will not be governed by the united nations conventions on contracts for the international sale of goods, if otherwise applicable. Licensee agrees that jurisdiction over and venue in any legal proceeding directly or indirectly arising out of or relating to the program, the use or access thereof, or the terms must be in the state or federal courts located in Newark, New Jersey and licensee hereby consents and submits to the exclusive personal jurisdiction and venue of the courts located in Newark, New Jersey for any such legal proceeding. Any cause of action or claim licensee may have with respect to the program must be commenced within one (1) year after such claim or cause of action arises. Except with respect to the protection and enforcement of the intellectual property rights of Ericom (or third party licensors) and its rights to seek and/or obtain injunctive or equitable relief, any claim, cause of action or proceeding arising out of or relating to these Terms or the Program shall be resolved by mandatory, binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (「AAA」) as supplemented by AAA’s Supplementary Procedures for Consumer-Related Disputes. Any such claim, cause of action or proceeding shall be arbitrated on an individual basis and without resort to any form of class action. The arbitration shall be conducted in Newark, New Jersey, and the Federal Arbitration Act, and not any state law concerning arbitration, shall apply. The arbitration award shall be final and exclusive, and the prevailing party in the arbitration may file an action in court to confirm and to enforce the arbitration award. Any such action, or any claim, cause of action or proceeding not subject to arbitration as set forth in this section, shall be filed and adjudicated in a state or federal court in Newark, New Jersey, and all parties agree to submit to the personal jurisdiction of those courts. Licensee irrevocably waives any rights to seek and/or obtain injunctive or other equitable relief and any defense of forum non conveniens. Should either party pursue any other judicial or administrative action with respect to any matter included within the scope of this binding arbitration provision, the responding party will be entitled to recover its costs, expenses, and attorneys』 fees incurred as a result of such action.
- EXPORT CONTROL. Licensee acknowledges that the Software contains cryptographic features and is subject to international and local country laws governing import, export, distribution, and use. The Software is subject to export control laws of the United States of America and the State of Israel and/or may be subject to additional export control laws applicable to Licensee. Licensee agrees not to export, re-export, or otherwise distribute the Software to any prohibited destination country under the EAR, U.S. and/or Israeli sanctions regulations (currently Iran, Lebanon, Syria, North Korea, Sudan, and Cuba) or in contravention of any applicable export controls and Licensee shall not authorize or permit any third party to do any of the foregoing. Licensee represents and warrants that it is not located in any of the countries mentioned in this Section. Additionally, Licensee may not download or otherwise export the Software to individuals or entities listed on the U.S. government’s Denied/Restricted Parties List without first obtaining a license.
- U.S. GOVERNMENT END USERS. The Program is deemed to be “Commercial Items,” as defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7207, as applicable. Consistent with such sections, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (i) only as Commercial Items, and (ii) with only those rights as are granted to all other end users pursuant to these Terms.
- GENERAL. Neither party shall be responsible for delays or failure of performance resulting from acts beyond the reasonable control of such party. The English version of these Terms shall be the version used when interpreting or construing these Terms. The parties acknowledge and agree that the limited warranty, exclusive remedies, and limited liability set forth in these Terms are fundamental elements of the basis of the bargain between Licensee and Ericom, and that Ericom would not be able to provide the Program on an economic basis without such limitations. No waiver, alteration, or modification of the provisions of these Terms will be valid unless made in writing and signed by an Ericom corporate officer. If any provision or provisions of these Terms are determined to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions of these Terms will not in any way be affected or impaired thereby. Licensee may not assign these Terms to any third party, in whole or in part. Except as expressly set forth herein, these Terms are the entire agreement between the parties with respect to its subject matter and supersedes and replaces all prior oral or written agreement, representations, negotiations, or understandings between the parties related to such subject matter.
- OPEN SOURCE. Certain Software components may be subject to free software licenses, which, among other rights, permit the user to copy, modify, and redistribute certain programs, or portions thereof, and have access to the source code. To the extent Licensee receives Software under this Agreement which contains such components, Licensee agrees to be bound by all the terms therein including keeping all copyright notices intact for the duration of Licensee’s use of the Software and modifying and/or redistributing such components only in accordance with their terms. Such components are provided 「AS IS」 「WITHOUT WARRANTY OF ANY KIND.」 Ericom may make available such software components, in source code format, to any third party upon request for the cost of duplication or distribution, for a period of three (3) years from this distribution. This distribution period begins on the date that Ericom first makes the software, in source code format, available, which must be used according to the license terms that accompany the source code. Requests should be submitted in writing to: Ericom Software Ltd., 8 Hamarpe Street P.O.Box 45122, Jerusalem, 9145101 Israel.