END USER LICENSE
AGREEMENT
IDENTITY MANAGER 4.8
IMPORTANT: LICENSOR IS PROVIDING THIS LICENSED SOFTWARE TO LICENSEE (THE
ORIGINAL PURCHASER EITHER AS AN INDIVIDUAL OR ON BEHALF OF ANOTHER LEGAL ENTITY
AS ITS EMPLOYEE OR AUTHORIZED AGENT) FOR ITS USE SUBJECT TO LICENSEE’S
AGREEMENT TO THE TERMS AND CONDITIONS SET FORTH BELOW. THESE TERMS AND
CONDITIONS MAY BE DIFFERENT FROM THE END USER LICENSE AGREEMENT(S) THAT
ACCOMPANIED EARLIER RELEASES OF THE LICENSED SOFTWARE. PLEASE READ THEM
CAREFULLY TO ENSURE FULL UNDERSTANDING BEFORE PROCEEDING, AS THEY MAY CONTAIN
ADDITIONAL RESTRICTIONS ON YOUR USE OF THE SOFTWARE. PLEASE DIRECT ANY
QUESTIONS TO THE MICRO FOCUS LEGAL DEPARTMENT AT LEGALDEPT@MICROFOCUS.COM. IF
YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT, YOU
WILL NOT BE AUTHORIZED TO USE THE LICENSED SOFTWARE. BY CLICKING THE ACCEPT
BUTTON OR SIMILAR ACCEPTANCE MECHANISM DURING INSTALLATION, OR BY COPYING OR
USING THE LICENSED SOFTWARE, LICENSEE ACKNOWLEDGES THAT IT HAS READ THIS LICENSE
AGREEMENT, UNDERSTOOD IT, AND AGREED TO BE BOUND BY ITS TERMS AND CONDITIONS.
THE LICENSED SOFTWARE IS LICENSED NOT SOLD.
For this End User License Agreement (“License Agreement”) the following terms
shall have the meanings given below:
“Documentation” means the Licensor user documentation that is included with the
Licensed Software.
“Licensee” means the single legal entity or person that rightfully acquires the
Licensed Software from Licensor or from a distributor or reseller of
Licensor.
“License Options” means those license options set forth in Annex 1 to this
License Agreement.
“Licensor” means NetIQ Corporation, a Micro Focus company and/or the Micro
Focus legal entity authorized to license the Licensed Software in the country
in which Licensee acquires the Licensed Software.
“Licensed Software” means the object code version of the Licensor computer
program(s) listed above, their Documentation, and other supplemental materials,
as provided to Licensee by Licensor, including but not limited to any software
security keys relating thereto. The Documentation may be delivered
electronically and may only be available in the English language. The Licensed
Software will be accompanied by a license key where required for activation and
use of the Licensed Software. The Licensed Software shall also include, and
this License Agreement shall govern the use of any update to the Licensed
Software that Licensee receives pursuant to a separate support and/or
maintenance purchase as described in Section 6 below, unless such update
contains or comes with a different end user license agreement, in which case
such end user license agreement shall supersede this License Agreement and
govern the use of such software license without need for a mutually executed
amendment to this License Agreement as set forth in Section 17 of this License
Agreement. This License Agreement does not grant Licensee the right to any
updates to the Licensed Software unless provided by Licensor under Section 6
and/or Section 7 below.
“Product Order” means a document that has been (i) executed by Licensee
describing each Licensed Software license to be purchased, and (ii) accepted by
Licensor. Licensor will accept the Product Order by either confirming
Licensor’s acceptance in writing or by delivering the Licensed Software to
Licensee, whichever occurs first. A Product Order may also mean a written
quote, or if referred to as such, a solution order, issued by Licensor
describing each Licensed Software license purchased that is accepted by Licensee
within the validity period of the quote either by Licensee executing and
returning the quote or a solution order, to Licensor, by Licensee issuing a
purchase order or other written confirmation of acceptance to Licensor in
conformance with the quote, and/or by Licensee paying to Licensor all fees set
forth in the quote. Each Product Order shall constitute a separate agreement
and shall incorporate therein this License Agreement. In the event of any
conflict between the terms and conditions of this License Agreement and the
terms and conditions of any Product Order, the conflicting terms and conditions
of the Product Order shall govern. In no event shall any terms and conditions
contained in a purchase order or similar document issued by Licensee in
connection with this License Agreement or with a Product Order apply and any
such document issued shall be only for the administrative purposes of
identifying the Licensed Software ordered, the number of licenses, and the
price to be paid and shall have no other legal effect. Licensor for purposes
of this paragraph shall mean Licensor or, if applicable, one of Licensor’s
authorized resellers from whom Licensee purchases the Licensed Software,
provided however that any conflicting or additional terms in a Product Order
accepted by an authorized reseller of Licensor shall have no effect unless such
terms have been agreed by Licensor in writing.
“Warranty Period” means a period of ninety (90) days from delivery of the
Licensed Software to Licensee.
1 GRANT OF LICENSE; LICENSE CONDITIONS. For payment of the applicable
non-refundable license fees identified on the Product Order and subject to
Licensee’s compliance with the terms and conditions set forth in this License
Agreement, Licensor grants solely to Licensee, as an end user, a personal,
perpetual (unless a subscription/term license has been purchased by Licensee),
non-transferable, non-sublicensable and non‑exclusive license to use the
Licensed Software solely for its own internal use and benefit. Licensee’s use
and operation of the Licensed Software and the license grant provided to the
Licensed Software is subject to Licensee being in possession of a valid license
key where required for the Licensed Software to run. Licensee agrees that
Licensor is not liable or responsible for lost or broken license keys or media
or the provision of replacement license keys or media and/or new license keys
or media unless Licensee is current on support and maintenance for the
applicable license and then only to the extent set forth in the applicable
annual support and/or maintenance agreement and only to the extent Licensor
then has sufficient rights from any applicable third party suppliers, if
necessary, to provide such replacement. If not current on support and maintenance
for the applicable license, replacement or new license keys or media may be
available for purchase at Licensor’s then current list fees for applicable new
licenses.
Different License Options are available from Licensor as set forth or referred to
in Annex 1. The applicable License Option and license count to be purchased by
Licensee for the Licensed Software shall be identified in the Product Order or
otherwise identified in writing by Licensor. Licensed Software is also subject
to additional terms and conditions as set forth in the “Specific Software
Terms” located in Annex 2. Any conflicting terms and conditions shall be
resolved according to the following order of precedence: Annex 2, Annex 1, and
the main body of the License Agreement.
2 USE RESTRICTIONS. Except as may be otherwise specifically permitted in Annex
1 or Annex 2 to this License Agreement, Licensee agrees not to:
2.1 Copy and/or distribute the Licensed Software, in whole or in part, for
internal use without paying Licensor the applicable additional fees required by
Licensor, except (i) for making a reasonable number of archival back-up copies;
or (ii) as expressly authorized by Licensor in writing; or (iii) for making a
reasonable number of copies of the Documentation supplied to Licensee by
Licensor in electronic form. Licensee shall reproduce and affix all copyright
and other proprietary rights notices appearing in or on the Licensed Software,
including notices of all third party suppliers.
2.2 Use the Licensed Software for timesharing, facilities management,
outsourcing, hosting, service bureau use, or for providing other application
service (ASP) or data processing services to third parties or for like
purposes.
2.3 Modify the Licensed Software or provide any person with the means to do
the same.
2.4 Create derivative works of the Licensed Software, or translate,
disassemble, recompile or reverse engineer the Licensed Software or attempt to
do so (except to the extent applicable law specifically permits such
activity).
2.5 Alter, destroy, or otherwise remove any proprietary notices or labels on
or embedded within the Licensed Software or Documentation.
2.6 Use the Licensed Software in a manner other than as specifically
permitted in this License Agreement.
3 AUDITS. Licensor or an Auditor (as defined below) has the right to verify
Licensee’s compliance with this License Agreement (and please see Micro Focus
License Compliance Charter -
http://supportline.microfocus.com/licensing/licVerification.aspx). Licensee
agrees to:
A. Implement internal safeguards to prevent any unauthorized copying,
distribution, installation, or use of, or access to, the Licensed Software and
associated support and maintenance, or breach of the terms or conditions of
this License Agreement;
B. Take all necessary steps to destroy or erase all Licensed Software codes,
programs and other proprietary information before disposing of any media
containing the Licensed Software;
C. Keep records sufficient to certify Licensee’s compliance with this License
Agreement including serial numbers and license keys of the Licensed Software,
hypervisor logs where applicable, and the location, model (including quantity
and type of processor) and serial number of all machines on which the Licensed
Software is installed or from which the Licensed Software is accessed, and the
names (including corporate entity) and number of users that are accessing the
Licensed Software, and, upon request of Licensor, provide and certify metrics
and/or reports based upon such records and account for, among other things,
numbers of copies (by product and version) and network architectures as they
may reasonably relate to Licensee’s licensing and deployment of the Licensed
Software and associated support and maintenance;
D. Upon Licensor’s request, Licensee shall furnish Licensor or an independent
auditor chosen at Licensor’s sole discretion (“Auditor”), within seven (7) days
of the request, with a completed questionnaire provided by Licensor or the
Auditor, and with a written statement, in a format required by Licensor, signed
by a director of Licensee, certifying the accuracy of any information
provided;
E. Allow a Licensor representative or an Auditor to inspect and audit
Licensee’s computers and records, during Licensee’s normal business hours, for
compliance with the licensing terms for Licensor’s software products and
associated maintenance. Upon Licensor’s (and Auditor’s if applicable)
presentation of their signed written confidentiality statement form, Licensee
shall fully cooperate with such audit and provide any necessary assistance and
access to records and computers; and
F. In the event that Licensee has or at any time has had unlicensed
installation, use of, or access to the Licensed Software or has otherwise
breached the license granted (a “Non-Compliance”), without prejudice to any
other rights or remedies Licensor may have, including without limitation
injunctive relief, Licensee shall, within thirty (30) days, purchase sufficient
licenses and or subscriptions and associated support and maintenance to cure
the Non-Compliance, without benefit of any otherwise applicable discount, by
paying Licensor’s current (as of the date of such additional purchase) list
license fees and 12-month support and maintenance fees to Licensor for such additional
licenses, plus Licensor’s current (as of the date of such additional purchase)
list term license and support and maintenance fees and interest (compounded at
1.5% monthly or the maximum rate permitted by applicable law if lower) for such
additional licenses for the time period from the commencement of the
Non-Compliance until payment of the aforementioned fees. The aforementioned
interest shall be payable even if an invoice was not issued at the time the
Non-Compliance commenced. If a material license shortfall of 5% or more is
found, Licensee shall also reimburse Licensor for the reasonable cost of such
audit in addition to other amounts due. The obligations in this Section 3
shall apply to both Licensee’s Non-Compliance and any third party’s Non-Compliance.
4 DOCUMENTATION. One (1) electronic copy of Licensor’s standard Documentation,
describing Licensor’s recommended use and application of the Licensed Software,
will be furnished or made available on Licensor’s website free of additional
charge to Licensee by Licensor with the Licensed Software. Printed copies of
any Documentation may be available for purchase from Licensor or its authorized
distributors. Additional copies of standard Documentation may be available on
Licensor’s website.
5 TERM OF LICENSE. This License Agreement and Licensee’s license for the
Licensed Software is perpetual, unless a subscription/term license has been
purchased by Licensee (in which case the term of the license shall be as set
forth in the Product Order, specified in Annex 1 or Annex 2, or as otherwise
agreed in writing between the Licensee and Licensor), and is subject to earlier
termination as provided in this Section 5. If Licensee has purchased a
subscription/term license, Licensee’s license to the Licensed Software shall
automatically terminate upon expiry of such subscription/term. Licensor may
terminate this License Agreement and Licensee’s license to the Licensed
Software immediately by giving Licensee written notice of termination in the
event that either (i) Licensee breaches any term or condition of this License
Agreement and Licensee has failed to remedy such breach within ten (10) days of
the date of notice from Licensor to Licensee or (ii) Licensee is wound up, has
a receiver appointed or has applied for or enters into liquidation or
bankruptcy or analogous process or processes. Termination shall be without
prejudice to any other rights or remedies Licensor may have. In the event of
any termination Licensee will have no right to keep, access, or use the
Licensed Software or any copy of the Licensed Software for any purpose and
Licensee shall destroy and erase all copies of such Licensed Software in its
possession or control, and forward written certification to Licensor that all
such copies of Licensed Software have been destroyed or erased. Termination
shall not entitle the Licensee to any refund or reimbursement of any kind of
previously paid fees. The rights and obligations of the parties contained in
Sections 3, 8, 9, 10, 11, 12, and 13, and other sections that by their nature
are intended to survive, will survive the termination or expiration of this
License Agreement.
6 SUPPORT AND MAINTENANCE. Where Licensee purchases support and/or maintenance
services, Licensee’s initial support and/or maintenance term will begin upon
delivery to Licensee of the Licensed Software and continue for one (1) year
thereafter (or the length of the term if less than a year for any
subscription/term license) unless otherwise specified in the applicable annual
support and/or maintenance agreement, Product Order, or other written agreement
executed between Licensor and Licensee. Where Licensee purchases support
and/or maintenance for any Licensed Software, Licensee hereby agrees that it
shall purchase such support and/or maintenance services for all of Licensee’s
licensed units of such Licensed Software product. Support and/or maintenance
services provided by Licensor will be subject to Licensor’s then current
applicable standard annual support and/or maintenance agreement unless
otherwise agreed by the parties in writing.
7 LIMITED WARRANTY. Licensor warrants for the Warranty Period (i) that if the
Licensed Software is supplied via media, then the media will be free from
defects in materials or workmanship under normal use and (ii) that the copy of
the Licensed Software delivered to Licensee conforms in all material respects
to the Documentation. As the sole and exclusive remedy for not meeting part
(i) of the above warranty, Licensor’s sole obligation shall be to repair or
replace free of charge any defective media on which the Licensed Software is
delivered if the media is returned to Licensor by Licensee during the Warranty
Period. As the sole and exclusive remedy for not meeting part (ii) of the
above warranty, Licensor shall repair or replace the Licensed Software free of
charge so that it conforms with the warranty or, if Licensor reasonably
determines that such remedy is not economically or technically feasible,
Licensee shall be entitled to a full refund of the license fee and any
maintenance fee paid by Licensee with respect to that particular Licensed
Software. Upon such refund Licensee’s license to use such Licensed Software
will terminate. The warranty set forth in this Section 7 shall not apply if the
defect in the Licensed Software is the result of: (a) the Licensed Software not
being used in accordance with the Documentation, this License Agreement or with
the platform(s) for which the Licensed Software has been designed and licensed
by Licensor; or (b) the Licensed Software having been altered, modified or
converted by Licensee or any third party except as may be specified in the
Documentation; or (c) the malfunctioning of Licensee’s equipment; or (d)
accident or abuse; or (e) service by any unauthorized person; or (f) other
software used by Licensee which has not been provided by Licensor or for which
the Licensed Software is not designed and licensed for operation; or (g) Third
Party Software (as defined herein); or (h) any other cause occurring after
initial delivery of the media to Licensee unless caused directly by Licensor.
The foregoing states the complete and entire remedies that Licensee has under
this warranty. Licensor shall have no responsibility for any warranty claims
made outside of the Warranty Period. The foregoing warranty shall not apply to
any free-of-charge Licensed Software including updates, though issues with such
software may be eligible for support under applicable support terms and
conditions.
8 DISCLAIMER OF WARRANTY. The Licensed Software cannot be tested in every
possible operating environment, therefore Licensor does not warrant that the
functions contained in the Licensed Software will meet Licensee’s requirements,
that operation of the Licensed Software will be uninterrupted, or that the
Licensed Software is error free. EXCEPT AS SET FORTH HEREIN AND TO THE EXTENT
PERMITTED BY LAW, ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, STATUTORY OR
OTHERWISE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY,
QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXCLUDED ON THE PART OF
LICENSOR AND ITS THIRD-PARTY SUPPLIERS. Licensee acknowledges that Licensee is
responsible for the selection of the Licensed Software to achieve Licensee’s
intended results and for the installation and/or use of, and results obtained
from, the Licensed Software.
9 LIMITATION OF LIABILITY. ANY LIABILITY OF LICENSOR SHALL BE LIMITED IN THE
AGGREGATE TO THE AMOUNTS PAID BY LICENSEE FOR THE LICENSED SOFTWARE GIVING RISE
TO THE APPLICABLE CLAIM. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION,
INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, BREACH OF WARRANTY,
NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS. IN NO EVENT
SHALL LICENSOR BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL,
PUNITIVE OR SIMILAR DAMAGES NOR FOR ANY LOSS OF PROFITS, CONTRACTS, DATA, OR
PROGRAMS, OR THE COST OF RECOVERING SUCH DATA OR PROGRAMS, EVEN IF INFORMED OF
THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. LICENSOR’S LIMITATIONS OF
LIABILITY ARE NOT CUMULATIVE. LICENSEE’S REMEDIES IN THIS LICENSE AGREEMENT
ARE LICENSEE’S EXCLUSIVE REMEDIES.
NONE OF LICENSOR’S THIRD-PARTY SUPPLIERS SHALL BE LIABLE FOR ANY INJURY,
LOSS OR DAMAGE, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL
NOR FOR ANY LOSS OF PROFITS, CONTRACTS, DATA, OR PROGRAMS, OR THE COST OF
RECOVERING SUCH DATA OR PROGRAMS, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH
DAMAGES IN ADVANCE.
LICENSEE AGREES THAT, IN ENTERING INTO THIS LICENSE AGREEMENT, EITHER IT
DID NOT RELY ON ANY REPRESENTATIONS (WHETHER WRITTEN OR ORAL) OF ANY KIND OTHER
THAN THOSE EXPRESSLY SET OUT IN THIS LICENSE AGREEMENT, OR IF IT DID RELY ON
ANY REPRESENTATIONS, THAT IT SHALL HAVE NO REMEDY AGAINST LICENSOR IN RESPECT
OF SUCH REPRESENTATIONS.
LICENSEE FURTHER ACKNOWLEDGES THAT THE LIMITATIONS OF LIABILITY IN THIS
SECTION ARE AN ESSENTIAL ELEMENT OF THIS LICENSE AGREEMENT AND THAT, IN THE
ABSENCE OF SUCH LIMITATIONS, THE PRICING AND OTHER TERMS AND CONDITIONS SET
FORTH HEREIN WOULD BE SUBSTANTIALLY DIFFERENT.
NEITHER THIS LICENSE AGREEMENT NOR ANYTHING IN THIS SECTION 9 SHALL
EXCLUDE OR RESTRICT THE LIABILITY OF LICENSOR OR ITS THIRD-PARTY SUPPLIERS TO
ANY EXTENT NOT PERMITTED BY LAW.
10 HIGH-RISK USES. The Licensed Software is not fault tolerant, nor designed,
manufactured or intended for use in hazardous environments requiring fail-safe
performance (including, without limitation, the operation of nuclear
facilities, aircraft navigation or communication systems, air traffic control,
direct life support machines, or weapons systems) in which failure of the
Licensed Software could lead directly or indirectly to death, personal injury
or severe physical or environmental damage. Licensor and its suppliers shall
have no liability for any use of the Licensed Software in any high-risk
situations.
11 OWNERSHIP. Licensor (or its affiliates) and where applicable Licensor’s
third party suppliers have and will retain all ownership rights to the Licensed
Software, together with any complete or partial copies thereof. Such ownership
rights include without limitation all patent rights, copyrights, trademarks,
trade secrets, service marks, related goodwill, and confidential and
proprietary information relating thereto. This License Agreement does not
convey any proprietary interest to Licensee with respect to the Licensed
Software other than the license specified herein.
12 THIRD PARTY SOFTWARE AND COMPONENTS. The Licensed Software may come with
and/or require certain named third party software programs that Licensee shall
license directly from the third party subject to such third party’s terms and
conditions (for example Adobe Acrobat or Microsoft Internet Explorer) (“Third
Party Software”). Any Third Party Software is provided by the licensor of the
Third Party Software solely under a direct license between such third party and
Licensee under such third party’s terms and conditions. Therefore the
obligations, duties and rights of Licensor and Licensee under this License
Agreement do not apply to such Third Party Software. Additionally, Licensor
has embedded in some Licensed Software certain run time or other elements
provided by third party suppliers to Licensor (“Third Party Components”). Such
Third Party Components may also be loaded on the Licensed Software media. Third
Party Components are licensed to Licensee pursuant to this License Agreement.
Third Party Components may also include open source software, details of which
(where applicable) may be found (i) in a file accompanying the applicable
Licensed Software or (ii) in the applicable Documentation. Licensee may only
access Third Party Components of the Licensed Software in the course of using
the Licensed Software. Licensee may not make or attempt any direct access to
any such Third Party Components other than with the Licensed Software. All
limitations, restrictions and obligations applicable to the Licensed Software
set forth in this License Agreement shall apply to Licensee’s use of the Third
Party Components. The Third Party Software and Third Party Components are the
property of its respective third party supplier to Licensor. Such third party
suppliers own all copies of the Third Party Software and Third Party
Components, however made. Licensee agrees not to contest the ownership of the
Third Party Software and Third Party Components nor use any trademark or
service mark belonging to such third party suppliers. Licensee agrees that
such third party suppliers are intended third party beneficiaries of all terms
and conditions of this License Agreement intended to protect intellectual
property rights in the Licensed Software (including the Third Party Components)
and limit certain uses thereof. Nothing in this License Agreement shall
restrict, limit or otherwise affect any rights or obligations Licensee may
have, or conditions to which Licensee may be subject, under any applicable open
source licenses to any open source code contained in the Licensed
Software.
13 NOTICE TO U.S. GOVERNMENT END USERS. The Licensed Software and Documentation
are 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 Licensed Software
and Documentation are licensed to U.S. Government end users (i) only as
Commercial Items, and (ii) with only those rights as are granted pursuant to
this License Agreement. Manufacturer is Micro Focus, 1800 South Novell Place,
Provo, Utah 84606 as or on behalf of Licensor.
14 LICENSE FEES AND PAYMENT TERMS. Licensee agrees to pay the applicable end
user license fees for the Licensed Software within thirty (30) days of the date
of invoice or such other date as agreed in writing by the parties. End user
license fees are non-refundable except as provided in Section 7 above, or in
the Specific Software Terms below, and shall be paid without deduction,
including without limitation, of any withholding tax. End user license fees
are exclusive of any applicable transportation charges, value added and other
applicable taxes and duties and all such amounts shall be paid or reimbursed by
Licensee. Outstanding past-due amounts shall accrue interest at the rate of
1.5% per month compounded or, if lower, the maximum rate allowed by applicable
law. Licensee shall be liable for any such interest and all related collection
costs, whether or not an action has been filed. Licensor may decline to enter
into any additional Product Orders if any such past-due balance, interest and
collection costs are not paid.
15 RELATED SERVICES. Licensee shall be responsible for obtaining and
installing all proper hardware and support software (including operating
systems) and for proper installation and implementation of and training
concerning the Licensed Software. In the event that Licensee retains Licensor
to perform any services with respect to the Licensed Software (for example:
installation, implementation, maintenance, consulting and/or training
services), Licensee and Licensor agree that such services shall be subject to
Licensor’s then current standard terms, conditions and rates for such services
unless otherwise agreed in writing by Licensor.
16 PRIVACY. If the Licensed Software contains features that may allow Licensee
to collect data from, control and/or monitor computers running the Licensed
Software deployed by Licensee without notice to or knowledge by users of the
Licensed Software, then: (i) Licensee is solely responsible for, and assumes
all liability with respect to, the collection of data with respect to its users
of the Licensed Software including, without limitation, notifying such users
and complying with all data collection, privacy and other regulations, laws,
industry standards and rights of others applicable to any such activity; and
(ii) Licensee shall indemnify and hold Licensor harmless from and against any
damages, claims, losses, settlements, attorneys' fees, legal fees and court
costs and other expenses related to any such activities or any claims in
connection therewith. To the extent permitted by law, by entering into this
License Agreement, Licensee hereby expressly consents to (i) Licensor sending
information to Licensee from time to time advertising the various products that
Licensor provides, whether or not such products are provided under this License
Agreement; (ii) the use of Licensee’s name in Licensor customer lists,
promotional materials and/or press releases; and (iii) the collection and use
by Licensor of information about the computer system on which the Licensed
Software is installed (e.g. product version, serial number) for internal
security and licensing purposes; Licensor does not use this information to
identify individuals utilizing such software.
17 MISCELLANEOUS. Licensor may assign this License Agreement (in whole or in
part) to any member of Licensor’s group of companies or to a purchaser of the
intellectual property rights in the Licensed Software, but otherwise neither
this License Agreement nor any rights hereunder may be assigned (any change of
control merger, sale or other transfer of all, or substantially all, of the
assets of Licensee shall be included in the meaning of an assignment) nor
duties delegated by either party, and any attempt to do so will be void.
If Licensee acquires the Licensed Software in North America, the laws of the
state of Utah govern this License Agreement and the licenses granted hereunder
and the parties hereto consent and agree that they shall be subject to the
exclusive jurisdiction of the State and/or Federal courts sitting in the State
of Utah in any action based on this License Agreement or concerning the
licenses granted, or the products licensed, hereunder. Each party waives any
right it may have to object to such venue, including objections based on
personal jurisdiction or forum non conveniens (inconvenient forum). The
parties agree that the Uniform Computer Information Transaction Act or any
version thereof, adopted by any state, in any form ("UCITA"), shall
not apply to this License Agreement. To the extent that UCITA is applicable,
the parties hereby opt out of the applicability of UCITA pursuant to the
opt-out provision(s) contained therein. If Licensee acquires the Licensed
Software in France, Germany or Japan, this License Agreement is governed by the
laws of the country in which Licensee acquired the Licensed Software. In the
rest of the world the laws of England govern this License Agreement. The
aforesaid applicable law shall apply without regard to conflicts of laws
provisions thereof, and without regard to the United Nations Convention on the
International Sale of Goods. Other than for North American transactions, this
License Agreement, the licenses granted hereunder, and the parties hereto,
shall be subject to the exclusive jurisdiction of the courts of the country
determining the applicable law as aforesaid. In the event of a dispute, the
prevailing party shall have the right to collect from the other party its
reasonable costs and necessary disbursements and attorneys' fees incurred in
enforcing this License Agreement.
This License Agreement is in addition subject to any United States, United
Kingdom or European Union laws, regulations and other restrictions regarding export
or re-export of computer software and technology. Licensee agrees not to
export or re-export any Licensed Software or derivative thereof in
contradiction to any such applicable restriction. In particular but without
limitation, Licensee acknowledges that Licensor’s products and/or technology
are subject to the U.S. Export Administration Regulations (the “EAR”) and
Licensee agrees to comply with the EAR. Licensee will not export or re-export
Licensor’s products, directly or indirectly, to: (1) any countries that are
subject to US or applicable export restrictions; (2) any end user who Licensee
knows or has reason to know will utilize Licensor’s products in the design,
development or production of nuclear, chemical or biological weapons, or rocket
systems, space launch vehicles, and sounding rockets, or unmanned air vehicle
systems; or (3) any end user who has been prohibited from participating in
export transactions by any applicable agency of government. By downloading or
using the Licensed Software, Licensee is agreeing to the foregoing and Licensee
is representing and warranting that Licensee is not located in, under the
control of, or a national or resident of any such country or on any such
list.
Licensor may identify Licensee by name and/or logo as a licensee of Licensor
for investor relations, analyst relations, and public relations purposes, and
in online and printed sales and marketing materials. Any other use of
Licensee’s name or logo, or a description of Licensee’s use of the Licensed
Software, shall be subject to Licensee’s prior consent. Within eight (8) weeks
after installation of the Licensed Software, upon Licensor’s written request
Licensee will provide Licensor with input to a written description of
Licensee’s use of the Licensed Software including details of the business
challenge, software solution, and results realised from the installation of the
Licensed Software. The input shall be provided by a representative of Licensee
(who is knowledgeable of the Licensed Software and its performance after
installation) during a meeting with a representative of Licensor (at a
reasonable time to be agreed by the parties). The meeting may be conducted by
telephone. This input may be used internally within Licensor and in
confidential sales situations. Any other use of this input shall be subject to
Licensee’s prior consent.
Except for the Product Order, this License Agreement is the complete and
exclusive statement of agreement between the parties relating to the license
for the Licensed Software and supersedes all proposals, communications,
purchase orders, and prior agreements, verbal or written, including without
limitation prior end user license agreements in relation to the Licensed
Software between the parties and end user license agreements embedded in such
Licensed Software. No employee, agent, or representative of Licensor has the
authority to bind Licensor to any oral representation or warranty concerning
the Licensed Software. No representation or statement not expressly contained
in this License Agreement nor any supplement, modification, or amendment of
this License Agreement will be binding on either party unless executed in
writing by a duly authorized representative of Licensor and Licensee (excluding
any distributor or reseller of Licensor) to this License Agreement. No waiver
of any right under this License Agreement will be effective unless in writing,
signed by a duly authorized representative of the party to be bound (excluding
any distributor or reseller of Licensor). No waiver of any past or present
right arising from any breach or failure to perform will be deemed to be a
waiver of any future right arising under this License Agreement. If any
provision in this License Agreement is invalid or unenforceable, that provision
will be construed, limited, modified or, if necessary, severed, to the extent
necessary, to eliminate its invalidity or unenforceability, and the other
provisions of this License Agreement will remain unaffected. Each party
acknowledges that in entering into this License Agreement it has not relied on
any representations, agreements, warranties or other assurances (other than
those repeated in this License Agreement and the Product Order) and waives all
rights and remedies which but for this section 17 would be available to it.
Nothing in this section 17 excludes liability for fraudulent
misrepresentation.
If Licensee is situated in Italy, by placing or executing a Product Order,
Licensee declares to have read and to have explicitly approved the following clauses
of the License Agreement: 5. Term of License, 6. Support and Maintenance, 7.
Limited Warranty, 8. Disclaimer of Warranty, 9. Limitation of Liability, 10.
High-Risk Uses, 16. Privacy, 17. Miscellaneous, Annex 1, and Annex 2.
ANNEX 1, LICENSE OPTIONS
DEFINITIONS:
“Content” means the configuration packages and reports included with or made
available by Licensor for the Software for the purpose of configuring and using
the Software.
“Engine” means the components of the Software that manage the operations of the
Identity Manager User Application, the Integration Modules, integration modules
provided by Licensor consulting services, and/or third-party integration
modules.
“Integration Module(s)” means any Identity Manager (“IDM”) integration module
or collection of IDM drivers available on Licensor’s published price list
(including third party integration modules on Licensor’s price list but
excluding drivers provided through Licensor consulting services), regardless of
whether purchased directly or indirectly from Licensor.
“User” means a user object in a single directory tree (or other class of object
that contains data representing a person, such as objects containing credit
card information or PIN numbers) that has (a) access or use rights to any
portion of the Software, or (b) access or use rights to products (devices,
hardware, or software) being managed by the Software, regardless of whether the
user object is assigned to a person or device. User objects (or other classes
of objects) representing the same person that are linked to each other within a
single tree and/or linked across multiple trees count as only one User.
LICENSES:
License Terms.
The Software licensing models are typically associated with a “per” phrase
stating the counting basis for the Software (for example, “Per User” or “Per
Managed Identity” or “Per FTES”). Such phrases may appear in a variety of
sources such as the Documentation, the Purchase Documentation, or product use
rights and restrictions as set forth in a Product Use Rights Appendix attached
to this Agreement (in total, “Sources”).
Licensor hereby grants to You a perpetual, non-exclusive license to use the
Software, subject to the terms and conditions set forth hereinafter, for the
number and type of license identified on your Order Documentation. This license
becomes effective upon acceptance of this Agreement during the installation
process initiated by importing the license file of the Software and the
subsequent license granted to the Software remains in full force until You stop
using the Software or until Licensor terminates this license because of Your
failure to comply with any of its terms and conditions.
The following licenses apply to Your use of the Software depending on which
license type you purchased the Software under. For evaluation rights, please
see the Evaluation Software paragraph below.
LICENSE TYPES:
Per Affiliated/Enterprise Entity
You must acquire a base license for every licensing entity and/or install
site.
Per Managed Identity License
If You have a “per managed identity” license, the following terms and
conditions apply to Your use of the Software:
A "per managed identity" license is required for every active, unique
“identity” managed by or connecting through the licensed product. A Managed
Identity means user and/or custom objects (including either or both human
and/or non-human objects but not including group objects) collected within the
Software from all user or identity sources. For purposes hereof, an “identity”
means active, unique user and/or custom objects including either or both human
and/or non-human objects. Inactive identities (not accessed in more than 120
days and marked as "disabled") do not require licenses.
Per FTES License
You must acquire a license for each “FTES”. “FTES” means full time equivalent
staff. You must purchase an FTES License for every full time
and part time staff, faculty and administration, regardless of role and
anticipated use of the Software. Students, alumni and parents do not
require a license but use of the Software by such groups shall be limited to
use for academic purposes only. The number of FTES shall be
calculated as the sum of your most recently reported number of (a) full-time
equivalent staff (counted as one FTES for licensing purposes) and (b) part-time
staff (counted as ½ FTES for licensing purposes).
The FTES calculation for each category of full and part time staff must be
demonstrated through a verifiable means that may include use of an audited
annual report, an organization’s human resource system, or the government
website, government report, or other published report provided by Customer that
shows accurate information. Licensor may also
verify Your reported FTES count by accessing http://nces.ed.gov/globallocator/ or
other government and non-profit databases.
ADDITIONAL LICENSE TERMS:
The following licenses apply to Your use of the Software depending on which
product licenses You have purchased. Purchase of Identity Manager licenses is
a prerequisite for use of the Identity Manager User Application and the
Integration Modules.
Identity Manager 4.8 Advanced Edition.
You must acquire an Advanced Edition license for each license type under which
you are licensed. Each person who accesses or uses the Software must have at
least one user object uniquely assigned to that person and access the Software
through the user object.
You may create and internally use derivative works of the configuration
packages portion of the Content and may distribute those derivative works
internally in accordance with the terms of the Designer End User License
Agreement. You may also create new reports or edit the reports that are
provided as part of the Content, and may distribute the new or edited reports
internally or externally.
Identity Governance 3.6 Limited Access License included with Identity
Manager 4.8 Per Managed Identity License.
If you have a “per managed identity” license for Identity Manager 4.8, you are
entitled to a Limited Access License for Identity Governance 3.6. The
limited access license entitles an Identity Manager 4.8 “per managed identity”
license holder to install the Identity Governance 3.6 product and use
the identity catalog based features of Identity Governance to create and
manage identities, accounts, groups, applications, permissions, and business
roles. All other features of Identity Governance are provided on a preview
basis and cannot be fully enabled or used in production without the purchase of
a full “per managed identity” license for Identity Governance 3.6 or
later.
Identity Manager 4.8 Standard Edition.
You must acquire a Standard Edition license for each license type under which
you are licensed. Each person who accesses or uses the Software must have at
least one user object uniquely assigned to that person and access the Software
through the user object.
You may create and internally use derivative works of the configuration
packages portion of the Content and may distribute those derivative works
internally in accordance with the terms of the Designer End User License
Agreement. You may also create new reports or edit the reports that are
provided as part of the Content, and may distribute the new or edited reports
internally or externally.
Limited Use Restrictions for Identity Manager 4.8 Standard Edition. The
following components may only be used in Identity Manager 4.8 Advanced Edition
and may not be used in Identity Manager 4.8 Standard Edition: Role, Request,
Approval functionality in Identity Manager Home and Provisioning Dashboard;
Advanced Reporting on data outside the identity vault/engine within current
state and inside the identity vault/engine within historical data; Approval
Workflow; Full Roles Framework, including role creation; Resource Model; Full
User Application with Dashboard-based reporting; Role and Resource catalogs;
Catalog Administrator; Basic Attestation and Managed System Gateway (“MSGW”)
driver.
Identity Manager Integration Modules
The Software includes certain standard integration components and utilities for
use with the Software. Specialized Integration Modules are sold and licensed
separately for use with the Engine. For Integration Modules sold separately,
You must acquire a user license for each User of the Integration Module. Each person
who accesses or uses the Integration Module Software must have at least one
user object uniquely assigned to that person and access the Software through
the user object. Provided that You comply with the above requirements, You are
authorized to use an unlimited number of copies of the Integration Module
Software.
Identity Manager Bundle Edition
“Commercial Drivers” means the Identity Manager drivers for eDirectory™, Novell
Business Continuity Clustering, Micro Focus Groupwise and Active Directory. The
term “Commercial Drivers” will also include any other Identity Manager driver
that Licensor designates as a Commercial Driver in the end user license
agreement accompanying such driver. Commercial Drivers are licensed to You for
commercial use with the Primary Product.
“Evaluation Drivers” means the NetIQ Identity Manager drivers included with the
Software other than the Commercial Drivers. Evaluation Drivers are licensed to
You for limited evaluation purposes in accordance with the Evaluation Software
paragraph set forth below in this Agreement.
“Primary Product” means the NetIQ or Novell software product with which You
received the NetIQ Identity Manager Bundle Edition Software. By way of
example, You may have received the NetIQ Identity Manager Bundle Edition
Software with Your purchase of licenses for the Novell Open Enterprise Server
product.
License Grant. You are authorized to use the Commercial Drivers with the NetIQ
Identity Manager engine included with the Software solely to enable Your licensed
use of the Primary Product and only in connection with Your licensed use of the
Primary Product. You are authorized to use the Evaluation Drivers with the
NetIQ Identity Manager engine included with the Software solely for internal
evaluation purposes in accordance with the Evaluation Software paragraph set
forth below. You may not use the NetIQ Identity Manager Software with the User
Application for NetIQ Identity Manager, the Roles Based Provisioning Module for
NetIQ Identity Manager or with any drivers or integration modules other than
the Commercial Drivers specified above.
Use of the NetIQ Identity Manager Software with any drivers or modules other
than as expressly specified above and other than solely in support of the
Primary Product requires the purchase of the requisite licenses to the NetIQ
Identity Manager product (licenses sold separately).
ANNEX 2, SPECIFIC SOFTWARE TERMS
eDirectory License
The quantity of User licenses for the eDirectory software included with Your
lawfully acquired licenses of the Identity Manager 4.8 Advanced Edition,
Identity Manager 4.8 Standard Edition Software or Identity Manager Bundle
Edition is equal to the greater of (1) the quantity of licenses You have
lawfully acquired for the Identity Manager Software, or (2) 250,000 Users per
entity/company. The foregoing eDirectory licenses are not upgradeable and are
otherwise subject to the license agreement accompanying the eDirectory
software.
Limited use license to NetIQ Sentinel for the purpose of Identity Manager Event
Audit Store
The limited-use license of NetIQ Sentinel provides the right to collect and
process events from Devices corresponding to licensed Identity Manager
components. The limited use license will be deemed to have been exceeded if: i)
Sentinel is used to collect and process events for purposes other than Identity
Manager reporting and/or ii) Sentinel is used to collect events from any Device
not corresponding to licensed Identity Manager. In either case, Licensee is
obligated to purchase additional NetIQ Sentinel licenses sufficient to address
any proposed expanded usage of NetIQ Sentinel beyond this limited use
license.
Staging Software License
Provided that You are in compliance with the terms of this Agreement, You are
authorized to use the Software in Your internal, non-production environment
solely for testing purposes in a quantity equal to that of Your User commercial
licenses.
Evaluation Software. If the Software is an evaluation version or is provided
to You for evaluation purposes, then, unless otherwise approved in writing by
an authorized representative of Licensor, Your license to use the Software is
limited solely for internal evaluation purposes in non-production use and in
accordance with the terms of the evaluation offering under which You received
the Software, and expires 90 days from installation (or such other period as
may be indicated within the Software). Upon expiration of the evaluation
period, You must discontinue use of the Software, return to an original state any
actions performed by the Software, and delete the Software entirely from Your
system and You may not download the Software again unless approved in writing
by an authorized representative of Licensor. The Software may contain an
automatic disabling mechanism that prevents its use after a certain period of
time.
iOS App. If the Software is a mobile application for the iOS platform, Apple
requires that Licensor include certain terms in this Agreement. You hereby
agree to and acknowledge the following terms (for purposes of this addendum,
the term “Licensed Application” refers to the Software). You acknowledge that
this Agreement is concluded between You and Licensor only, and not with Apple.
Licensor is solely responsible for the Licensed Application and the content
thereof. To the extent that this Agreement provides for usage rules for the
Licensed Application that are less restrictive than the Usage Rules set forth
for Licensed Applications in, or otherwise are in conflict with, the App Store
Terms of Service, then those more restrictive terms in the App Store Terms of
Service also apply. Your license to use the Licensed Application is limited to
a non-transferable license to use the Licensed Application on an iOS Product
that You own or control and as permitted by the Usage Rules set forth in the
App Store Terms of Service. You acknowledge that Apple has no obligation
whatsoever to furnish any maintenance and support services with respect to the
Licensed Application. To the maximum extent permitted by applicable law, Apple
will have no other warranty obligation whatsoever with respect to the Licensed
Application. You acknowledge that Apple is not responsible for addressing any
claims relating to the Licensed Application or Your possession and/or use of
that Licensed Application, including, but not limited to: (i) product liability
claims; (ii) any claim that the Licensed Application fails to conform to any
applicable legal or regulatory requirement; and (iii) claims arising under
consumer protection or similar legislation. Intellectual Property Rights: You
acknowledge that, in the event of any third party claim that the Licensed
Application or Your and use of that Licensed Application infringes that third
party’s intellectual property rights, Apple will not be responsible for the
investigation, defense, settlement and discharge of any such intellectual
property infringement claim. You represent and warrant that You are not located
in a country that is subject to a U.S. Government embargo, or that has been
designated by the U.S. Government as a “terrorist supporting” country; and You
are not listed on any U.S. Government list of prohibited or restricted parties.
You must comply with applicable third party terms of agreements when using Your
Application, e.g., if use VoIP, then You must not be in violation of Your
wireless data service agreement when using the Licensed Application. Apple,
and Apple’s subsidiaries, are third party beneficiaries of the Agreement. Upon
Your acceptance of the terms and conditions of the Agreement, Apple will have
the right (and will be deemed to have accepted the right) to enforce the
Agreement against You as a third party beneficiary thereof.
ENDS
(05142019)