TERADICI END USER LICENSE AGREEMENT
BY SELECTING “AGREE” OR “I ACCEPT THE TERMS IN THE LICENSE AGREEMENT” AND/OR INSTALLING, ACTIVATING AND/OR USING THIS LICENSED PRODUCT (AS DEFINED IN SECTION 1 BELOW), YOU AND/OR THE ENTITY THAT YOU REPRESENT ("LICENSEE") ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THE LICENSE AGREEMENT WITH TERADICI CO. (“TERADICI”) CONSISTING OF THIS PARAGRAPH AND THE FOLLOWING TERMS (THIS "AGREEMENT") WITH RESPECT TO THE LICENSED PRODUCT. PROVISION OF THE LICENSED PRODUCT IS CONDITIONED ON, AND LICENSEE'S INSTALLATION OR USE OF THE LICENSED PRODUCT SHALL CONSTITUTE, LICENSEE’S ASSENT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF LICENSEE REGISTERS FOR A FREE TRIAL OF THE LICENSED PRODUCT, THIS AGREEMENT SHALL ALSO GOVERN THAT FREE TRIAL. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. IF LICENSEE DOES NOT UNCONDITIONALLY AGREE TO THE FOREGOING, LICENSEE SHOULD NOT SELECT “AGREE” OR “I ACCEPT THE TERMS IN THE LICENSE AGREEMENT” AND/OR INSTALL, ACTIVATE AND/OR USE THE LICENSED PRODUCT. IF YOU CONTINUE WITH INSTALLATION AND/OR USE, YOU ARE REPRESENTING AND WARRANTING THAT YOU ARE AUTHORIZED TO BIND LICENSEE.
1. Grant of License and Restrictions. Subject to the terms hereof, payment of any Fees (as defined in Section 2), and any applicable user/use limitations specified in this Agreement, Teradici grants Licensee a personal, limited, revocable (in accordance herewith), non-sub-licensable, non-transferable, nonexclusive, right to use a Licensed Product in object code form either (in accordance with Licensee’s ordering documentation): (i) only during a limited time period (usually one or three years); or (ii) on a perpetual basis, and only in accordance with Teradici’s applicable user documentation. For these purposes, “Licensed Product” shall include software (including firmware that may be loaded on, embedded in or otherwise included with a product purchased by Licensee), any updates to the foregoing and all Teradici and/or third-party proprietary documentation, including any installation documents, provided by Teradici to Licensee. The license under this Section 1 shall not survive expiration or termination of this Agreement. Licensee may possess only the number of copies of the Licensed Product as has been expressly authorized by Teradici, and, unless expressly licensed for Concurrent Use (as such term is defined below), the Licensed Product may only be used by the number of users/instances/machines licensed. Teradici retains ownership of the Licensed Product and all copies (including all intellectual property rights therein) and Licensee shall maintain the copyright notice and any other notices that appear on the Licensed Product on any copies and any media (Third Party Software is owned by its respective owners). For purposes of this Agreement, the term "Concurrent Use" means Licensee may use a Licensed Product based on the number of users who can use the Licensed Product at any one time when the Licensed Product is either installed (i) on a computer file server and initiated by an individual from another computer on the same internal network as the computer file server; or (ii) on an individual’s computer, but only made available for use when such individual’s computer is granted permission by a computer file server over an internal network. The total number of users who can use the Licensed Product at any one time may not exceed the total number of Concurrent Use licenses granted by Teradici for such Licensed Product.
Licensee shall not (and shall not allow any third party to): (a) copy or distribute any Licensed Product, including within Licensee’s organization; (b) reverse engineer, adapt, translate, decompile, disassemble or attempt to discover any source code or underlying ideas or algorithms of the Licensed Product (except to the extent that applicable law or any applicable Third Party Software license prohibits reverse engineering restrictions); (c) use the Licensed Product (i) on any host device not running on an operating system and/or hardware expressly authorized by Teradici; or (ii) to connect to or interoperate with any offering not provided by or authorized by Teradici or a Teradici agent; (d) provide, lease, lend, disclose, use for timesharing or service bureau purposes, or otherwise use or allow others to use for the benefit of any third party, the Licensed Product (except as expressly and specifically authorized in writing by Teradici); (e) possess or use any Licensed Product, or allow the transfer, transmission, export, or re-export of the Licensed Product or portion thereof in violation of any export control laws or regulations administered by the U.S. Commerce Department, U.S. Treasury Department's Office of Foreign Assets Control, or any other government agency, and Licensee represents and warrants that it is not located in a country that is subject to a U.S. Government embargo, or that is listed on Title 15, Part 740 Supplement 1 Country Group E of the U.S. Code of Federal Regulations and is not listed on any U.S. Government list of prohibited or restricted parties; (f) disclose to any third party any benchmarking or comparative study involving the Licensed Product; (g) use the Licensed Product to transmit infringing, libelous, or otherwise unlawful or tortious material, or to transmit material in violation of third party privacy rights; (h) interfere with or disrupt the integrity or performance of the Licensed Product or third party data contained therein; (i) attempt to gain unauthorized access to the Licensed Product or its related systems or networks; or (j) modify or create derivative works from the Licensed Product. Without in any way limiting the foregoing, any and all modifications or derivatives of the Licensed Product made by any person shall be owned by Teradici and Licensee hereby irrevocably assigns, transfers and conveys any modifications or derivatives thereof (including all intellectual property rights therein) to Teradici.
Prior to disposing of any media or apparatus containing any part of the Licensed Product, Licensee shall completely destroy such part of the Licensed Product contained therein. Further, any Licensed Product specifically licensed for evaluation purposes, without charge or for a nominal charge, shall be deemed a free evaluation license and may be used for purposes of evaluation for a paid license only, and not for any productive use. Licensee acknowledges that the Licensed Product may be distributed alongside or contain or use certain third party software (“Third Party Software”). THIRD PARTY SOFTWARE IS (IN ADDITION TO THE TERMS AND CONDITIONS OF THIS AGREEMENT), SUBJECT TO AND GOVERNED BY (AND LICENSEE AGREES TO, AND SHALL INDEMNIFY TERADICI FOR NONCOMPLIANCE WITH) THE RESPECTIVE LICENSES FOR THE THIRD PARTY SOFTWARE AVAILABLE AT https://www.teradici.com/third-party-licenses. To the extent the terms of the third party software require an offer to provide source code or related information, such offer is hereby made. Any request for source code or related information should be directed only to: legal@teradici.com.
Use of Licensed Products provided as a service and accessed on Teradici systems is subject to the Teradici Privacy Statement available at https://www.teradici.com/privacy-policy/cas-manager
(the “Privacy Policy”), which is incorporated into and made a part of this Agreement. The Privacy Policy explains how we collect, use, protect and disclose your information, and provides you with options as to our use and disclosure of your information. By using these Licensed Products you agree to our use of your data in accordance with the Privacy Policy.
THE LICENSED PRODUCT IS NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE WHERE THE FAILURE OF THE LICENSED PRODUCT COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SIGNIFICANT PHYSICAL OR ENVIRONMENTAL DAMAGE (“HIGH RISK ACTIVITIES”). USE OF THE LICENSED PRODUCT IN HIGH RISK ACTIVITIES IS NOT AUTHORIZED AND LICENSEE SHALL DEFEND AND INDEMNIFY TERADICI AND ITS AFFILIATES FOR ANY THIRD PARTY CLAIMS BASED UPON LICENSEE’S USE OF LICENSED PRODUCT IN HIGH RISK ACTIVITIES.
2. Additional Terms applicable to PCoIP Graphics Agent for macOS, PCoIP Software Client for macOS and PCoIP Mobile Client for iOS Tablets. In the event the Licensed Product licensed by Licensee is one of the following Licensed Products: PCoIP Graphics Agent for macOS, PCoIP Software Client for macOS and PCoIP Mobile Client for iOS Tablets (referred to in this Section 2 as “Licensed Applications”), the following additional terms apply: (i) the licenses granted to Licensee are non-transferable and permit Licensee to use the Licensed Applications only on any Apple-branded products that Licensee owns or controls as permitted by the Usage Rules set forth in the Apple Media Services Terms and Conditions, except that such Licensed Applications may be accessed, acquired or used by other accounts associated with Licensee via Family Sharing, volume purchasing, or Legacy Contacts; (ii) this Agreement is not intended to conflict with the Apple Media Services Terms and Conditions or the Volume Content Terms as of the Effective Date (collectively, the “Apple Terms”), and in the event of any such conflict, the Apple Terms shall control; (iii) as between Teradici and Apple: Teradici, and not Apple, is solely responsible for providing (a) any maintenance and support for the Licensed Applications, and (b) any warranties regarding the Licensed Application, and such warranties and disclaimer of all other warranties are set forth in Sections 8 and 9 of this Agreement. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Licensed Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any applicable warranty is Teradici’s sole responsibility; (iv) Apple is not responsible for addressing any claims of Licensee or any third party relating to the Licensed Application or Licensee’s possession and/or use of the Licensed Application, including, but not limited to: (a) product liability claims; (b) any claim that the Licensed Application fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation, including in connection with the Licensed Applications’ use of the HealthKit and HomeKit frameworks; (v) Apple is not responsible for the investigation, defense, settlement or discharge of any third party claim that the Licensed Application or Licensee’s possession or use of it infringes that third party’s intellectual property rights; (vi) Licensee represents and warrants that (a) it is not located in a region that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” region; (b) the Licensee is not listed on any U.S. Government list of prohibited or restricted parties; and (c) it will comply with all applicable third party terms of agreement when using the Licensed Application (e.g., if Licensee uses a wireless service when using the Licensed Application, it will comply with the terms of the applicable wireless service agreement); and (vi) Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement and Apple will have the right to enforce this Agreement against Licensee as a third party beneficiary hereof.
3.Fees and Payment; Taxes. This Section 3 is applicable in any instance where fees are payable by Licensee for the Licensed Product (“Fees”) and not where the Licensed Product is provided by Teradici free of charge to Licensee (including, without limitation, under a free evaluation license). Prior to download of the Licensed Product, Licensee shall pay, or have paid via a distributor or reseller, all applicable Fees for any authorized copies or uses of Licensed Product or such other Fees as have been expressly agreed to by Teradici. In addition, without limiting Teradici’s remedies, if Licensee makes or uses copies, or has users/uses, that are not authorized hereunder, it shall pay additional license and maintenance and support fees (if applicable) equal to Teradici’s then current standard fees for the license and maintenance and support of such extra copies and users/uses (from time to time upon request, Teradici shall be entitled to audit or have audited all systems and records relevant to assure compliance with the foregoing; any audit showing noncompliance shall be at Licensee’s expense). All payments shall be made in the currency of, and within the borders of the country (or countries) specified by Teradici or Teradici’s distributor or reseller. Any payments more than thirty (30) days overdue shall bear a late payment fee of 1.5% per month, or, if lower, the maximum rate allowed by law. Any Fees that are unpaid as of the date of termination shall be immediately due and payable. Licensee shall pay on demand all of Teradici’s reasonable attorney fees and other costs incurred by Teradici to collect any fees or charges due Teradici under this Agreement following Licensee’s breach of this Section 3. Unless otherwise stated, the Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). Licensee is responsible for paying all Taxes associated with Licensee’s purchases hereunder. If Teradici has the legal obligation to pay or collect Taxes for which Licensee is responsible under this Section, the appropriate amount shall be paid by Licensee promptly following notice thereof, unless Licensee provides Teradici with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Teradici is solely responsible for taxes assessable against it based on Teradici’s income, property and employees.
4. Term and Termination. This Agreement shall be effective as of the Effective Date, and will continue either (i) for a limited time period mutually agreed to by the parties in writing; or (ii) on a perpetual basis, as stated in Licensee’s ordering documentation (the “Term”), unless earlier terminated as provided in this Section or elsewhere in this Agreement. All licenses shall terminate (a) immediately, in the case of a breach of Sections 1, 2 or 3, and (b) thirty (30) days (or ten (10) days in the case of non-payment) after notice of any other breach of this Agreement by Licensee that remains uncured at the end of any notice period. A license shall also terminate upon the expiration of any applicable license period specified for the applicable Licensed Product on the Teradici price list (as applicable) or such other license period as has been expressly agreed to by Teradici (provided that, in any case, a free evaluation license shall have the license period set forth on the Teradici website, or as otherwise agreed upon in writing by the parties, but in any event not more than ninety (90) days). Upon any termination, Licensee shall immediately cease all use of the Licensed Product and return or destroy all copies of the Licensed Product and all portions thereof and so certify to Teradici. Except as otherwise expressly provided herein, the terms hereof shall survive any termination. Termination is not an exclusive remedy and all other remedies shall be available whether or not termination occurs.
5. Perpetual licenses. In the event the Term of Licensee’s license is perpetual, Licensee must be current in its payment of annual technical support and maintenance fees in order to download the current version of the Licensed Product or to obtain technical support from Teradici. Licensee will pay Teradici the first year’s annual support and maintenance fees at the time of its payment of perpetual license fees, and subsequent years’ annual support and maintenance fees will be payable annually by Licensee to Teradici. Teradici shall have no obligation to provide support services if Licensee fails to make any required support services payment or otherwise elects to discontinue support services. In order to reinstate or renew support services, Licensee must first pay Teradici the then current annual support services fee and all past unpaid support services fees.
6. Confidentiality. Licensee shall only use Confidential Information for the purposes of this Agreement and shall not reproduce, disseminate, or disclose Confidential Information to any person, except to its affiliates, employees and authorized representatives (i.e., temporary employees, consultants, and contractors) who need to know the Confidential Information for the purposes of this Agreement and are bound by confidentiality obligations at least as restrictive as those in this Section 6 (Confidentiality). Licensee shall treat all Confidential Information with at least the same degree of care as it treats its own information of similar sensitivity, but never with less than reasonable care. “Confidential Information” means Teradici’s and Teradici’s affiliates’ non-public information (including copies, summaries, and extracts): (A) that is identified in writing as confidential at the time of disclosure, whether in printed, textual, graphic, or electronic form; (B) that is disclosed in non-tangible form, identified as confidential at the time of disclosure, summarized in a writing labelled as “confidential”, and delivered to Licensee or any Licensee affiliate (as applicable) within fifteen (15) days after disclosure; or (C) that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.
7. Support and Maintenance Services. Information about Teradici’s support and maintenance for the Licensed Product may be found at https://help.teradici.com.
8. Limited Warranty. Teradici warrants to Licensee that the Licensed Product (other than any Licensed Product specifically licensed for evaluation purposes) will, for a period of Thirty (30) days following delivery (“Warranty Period”), substantially conform to the applicable Documentation, provided that the Licensed Product (a) has been properly installed and used at all times and in accordance with the applicable Documentation; and (b) has not been modified by persons other than Teradici or its authorized representative. Teradici will, at its own expense and as its sole obligation and Licensee exclusive remedy for any breach of the foregoing warranty, either replace the applicable Licensed Product or correct any reproducible error in the Licensed Product reported to Teradici by Licensee in writing during the Warranty Period. If Teradici determines that it is unable to correct the error or replace the Licensed Product, Teradici will refund to Licensee all License fees actually paid by Licensee, in which case the License for the applicable Licensed Product and Licensee right to use such Licensed Product will terminate.
9. Disclaimer. THE EXPRESS WARRANTY IN SECTION 8 ABOVE IS IN LIEU OF, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TERADICI AND ITS LICENSORS DISCLAIM, ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE REGARDING OR RELATING TO THE LICENSED PRODUCT, THE DOCUMENTATION, OR ANY MATERIALS FURNISHED OR PROVIDED TO LICENSEE UNDER THIS EULA. TERADICI AND ITS LICENSORS DO NOT WARRANT THAT THE LICENSED PRODUCT WILL OPERATE UNINTERRUPTED OR THAT IT WILL BE FREE FROM DEFECTS OR THAT THE LICENSED PRODUCT WILL MEET (OR IS DESIGNED TO MEET) LICENSEE’S BUSINESS REQUIREMENTS.
10. Technical Previews. Teradici may provide Licensee with software products, components or features that Teradici has not released for production purposes, for example software products, components or features that are being tested or considered for possible future releases. These kind of software products, components or features are referred to here as “Technical Previews”. Technical Previews are provided with no support, warranty or other obligations on the part of Teradici, and thus Licensee may use Technical Previews in a non-production environment at its choice and at its own risk. Licensee may provide Teradici with any Feedback it may have with respect to Technical Previews, and Teradici may, at its option, assist or support Licensee in the event Licensee uses Technical Previews, but Teradici is not required to do so. Also, there is no guarantee or obligation that Teradici will include anything that is provided as Technical Previews in a future, production version.
11. Limitation of Liability. NOTWITHSTANDING ANYTHING ELSE HEREIN OR OTHERWISE, AND EXCEPT FOR BODILY INJURY OR ANY LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW, NEITHER TERADICI NOR ANY TERADICI SUPPLIER OR LICENSOR SHALL BE LIABLE OR OBLIGATED WITH RESPECT TO THE SUBJECT MATTER HEREOF OR UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF $500; (II) FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS; (III) FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES (INCLUDING LOST PROFITS OR COST SAVINGS) EVEN IF LICENSEE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (IV) FOR INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA; OR (V) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL. THE PARTIES AGREE THAT THIS SECTION 10 REPRESENTS A REASONABLE ALLOCATION OF RISK AND THAT TERADICI WOULD NOT PROCEED IN THE ABSENCE OF SUCH ALLOCATION.
12. Feedback. Licensee hereby grants a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into any Teradici product or service any suggestions, recommendations, requests for enhancement or other feedback provided by Licensee and related to the Licensed Product.
13. Injunctive Relief. Actual or threatened breach of certain sections of this Agreement (such as, without limitation, provisions on intellectual property (including ownership), license and confidentiality) may cause immediate, irreparable harm that is difficult to calculate and cannot be remedied by the payment of damages alone. Teradici shall be entitled to seek preliminary and permanent injunctive relief and other equitable relief for any such breach.
14. Embedded Reporting / Compliance Routine; Data Access and Use (Applicable to CACv2 and CAS Manager as a Service only). Licensee acknowledges that Products may contain automated reporting routines that will automatically identify and analyze certain aspects of use and performance of Products and/or the systems on which they are installed, as well as the operator and operating environment (including problems and issues that arise in connection therewith), and provide e-mail and other reports to Teradici. Provided it does not identify Licensee, Teradici will be free to use for development, diagnostic and corrective purposes any data and information it so collects relating to diagnosis, problems, systems, performance, use or functionality, and may allow others to do so. Notwithstanding the foregoing, except as otherwise agreed to by end-user, Teradici shall not collect, store, analyze or use Licensee’s Proprietary Information without prior written consent of Licensee and shall not collect, store, analyze or use personal information by any means for any reason or purpose.
15. Miscellaneous. Neither this Agreement nor the licenses granted hereunder are assignable or transferable by Licensee (and any attempt to do so shall be void). An assignment by operation of law or a change of control (directly or indirectly) shall be defined as an assignment or transfer under this Agreement. Teradici may assign and transfer this Agreement and the licenses granted hereunder without restriction. The provisions hereof are for the benefit of the parties only and not for any other person or entity. Any notice, report, approval, authorization, agreement or consent to or requested of Teradici required or permitted hereunder shall be in writing addressed to: Teradici Co., Attention: Finance & Legal Department, Suite 301, 4601 Canada Way, Burnaby, BC V5G4X7, Canada. No failure or delay in exercising any right hereunder shall operate as a waiver thereof, nor shall any partial exercise of any right or power hereunder preclude further exercise. If any provision shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this arrangement shall otherwise remain in full force and effect and enforceable. This agreement shall be deemed to have been made in, and shall be construed pursuant to the laws of the State of New York and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter hereof and any waivers or amendments shall be effective only if made in writing, and any pre-printed or standard terms of any purchase order, confirmation or similar form, even if signed by the parties after the effectiveness hereof, shall have no force or effect. The substantially prevailing party in any action to enforce this agreement shall be entitled to recover its attorney’s fees and costs in connection with such action. The Licensed Product (a) was developed at private expense and includes trade secrets and Confidential Information; (b) is a commercial item consisting of commercial computer software and commercial computer software documentation regulated under FAR 52.227-14 and DFARS Section 227.7202 and shall not be deemed to be non-commercial computer software and/or non-commercial computer software documentation under any provision of DFARS; and (c) is NOT offered to US Government agencies under the commercial computer software license set forth at FAR 52.227-19. Consistent with 48 CFR 12.212 and 48 CFR 227.7202 as applicable, the Product is licensed to government end users solely as a commercial item and with only those rights as are granted to other end users under the terms of this Agreement. Technical data relating to commercial items shall be made available to the Government consistent with the requirements and limitations of FAR 52.227-14 or DFARS 252.227-7015, as applicable. The terms “commercial computer software,” “commercial computer software documentation,” “technical data relating to commercial items,” shall have the meanings relating to each such term as are set forth in the aforementioned FAR and DFARS clauses, as applicable. All rights not expressly granted are expressly reserved by Teradici. Licensee is responsible for all acts and omissions of its affiliates or any person or entity whom Licensee is permitted under this Agreement to allow the use of or access to the Licensed Product. Nothing in this Agreement shall be construed as creating an employer-employee relationship, a partnership, or a joint venture between the parties.