Updated March 2020

 

Software License Agreement

 

This is a legal Agreement between you and Test Systems Strategies Incorporated (“TSSI”).  If you use the TSSI products and services as an employee of or for the benefit of your company or institution, you represent that you have the power and authority to accept this agreement on behalf of your company or institution.  In such event, “you” refers to your company or institution.

 

Definitions

 

1.1    Software.  TSSI Software product(s), accompanying documentation, and any upgrades you have purchased and/or subscribed.

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1.2    License Key.  The license file needed to activate and use TSSI Software according to the quantity and valid duration you have purchased and/or subscribed.

 

1.3    Use Area.  Your company’s legally designated primary working location for your employees.  For floating licenses where a license server is used, Use Area is defined as follows: (1) Site (For employees located in the United States, all your legal locations within the same State where the license server is located. For employees not located in the United States, all legal locations within the same time zone where the license server is located); (2) Continental WAN (a Continental WAN Upgrade is required as defined in 1.4 “WAN Upgrades” to expand the Use Area to all legal locations within the same continent where the license server is located); (3) Worldwide WAN (a Worldwide WAN Upgrade is required as defined in 1.4 “WAN Upgrades” to expand the Use Area to all legal locations world wide).

 

1.4    WAN Upgrade.  If you have purchased/subscribed the right to use the Software over your wide area network (“WAN”), then unless the purchasing agreement states otherwise, the Software may be used by your End Users who are located at any of your facilities within the same continent where the license server is located if a Continental WAN Upgrade was purchased, or at any of your facilities worldwide if a Worldwide WAN Upgrade was purchased.

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1.5    End Users.  You are the End User, or you may designate any of your company’s employees whose primary work location is in the Use Area as End Users.  You may designate an independent contractor as an End User only if the independent contractor (a) has a demonstrable need to use the Software in order to perform the job functions you have assigned to him/her; (b) has signed a binding agreement with you to abide by the restrictions on your use of the Software and your confidentiality obligations regarding the Software; and (c) is not an employee or agent of, or otherwise affiliated with, any TSSI competitor.

 

BY INSTALLING THE LICENSE KEY, AND/OR BY USING THE SOFTWARE, YOU AND/OR END USER(S) (“YOU”, “you”, “your”, or “yours”) ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT.

 

Grant of License

 

2.1    TSSI grants YOU the non-exclusive right to use TSSI Software according to the terms and conditions specified below.  All rights not expressly granted herein are reserved by TSSI, its suppliers, licensers, or successors.

 

You may :

 

3.1    install the Software on one or more computers;

 

3.2    install the License Key (using Flexera FlexNET or equivalent) for the Software on the server specifically identified in the License Key;

 

3.3    make a reasonable number of copies of the Software solely for back-up purposes, provided that you reproduce all proprietary notices on the copy;

 

3.4    invoke and operate the Software solely for the functions it was designed for;

 

3.5    physically transfer the Software license from one server to another, once per year provided all of the Software is in a valid subscription year or is covered by a current Software Maintenance Agreement; if a Software License Transfer Agreement is signed by you and accepted by TSSI; and if you destroy the existing Software licensed to the original host computer;

 

3.6    make a reasonable number of copies of the Software documentation solely to support your use of the Software.

 

You may not :

 

4.1    use more copies of the Software on more computers or workstations at a time than the number of licenses purchased or subscribed;

 

4.2    decompile, reverse engineer, or otherwise attempt to derive the source code for any Software or any underlying algorithms, user interface techniques, or other ideas embodied in the Software;

 

4.3    rent, lend, transfer, distribute, or grant any rights in the Software in any form to any person without the written consent of TSSI;

 

4.4    remove any proprietary notices, labels, or marks from the Software;

 

4.6    tamper with, or attempt to circumvent or disable, any License Key (this includes, for example, resetting the CPU time in order to extend the License Term or using a false, and/or duplicate, host ID number to enable unauthorized copies of a License Key);

 

4.7    use the Software or its output to create, modify, develop, or enhance any product that competes with a TSSI product or service;

 

4.8    modify or create a derivative work of any part of the Software or its documentation;

 

4.9    disclose the results of any benchmarking of the Software (whether or not the results were obtained with assistance from TSSI) to any third party; or

 

4.10    use the Software in the development of any product if the failure or malfunction of that product could reasonably be expected to result in personal injury, death, or catastrophic loss.

 

Limited Warranty and Disclaimer

 

5.1    For a period of 90 (ninety) days from when TSSI delivers the Software or License Key to YOU (the “Warranty Period”), TSSI warrants that the Software will be free of defects when used on the correct platform and according to the instructions in the corresponding documentation.  This warranty will be void if YOU, or anyone else other than TSSI, modifies or attempts to modify the Software.

 

5.2    To claim a breach of this warranty, YOU must, during the Warranty Period, notify TSSI in writing of the error or errors that YOU have encountered and provide TSSI with all the information you have, in written or electronic form, about those errors, so that TSSI can attempt to reproduce, diagnose, and correct the errors.

 

5.3    YOUR exclusive remedy for any breach of this warranty is that TSSI will use commercially reasonable efforts to (at TSSI’s option) correct the errors you have reported or provide a replacement product that does not contain these errors.

 

5.4    EXCEPT FOR THESE EXPRESS LIMITED WARRANTIES, TSSI MAKES, AND YOU RECEIVE, NO WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND TSSI SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. 

 

5.5    TSSI does not warrant that the Software will meet your requirements or that the operation of the Software will be uninterrupted or error free.  You assume the responsibility for the selection of your requirements, software, and hardware to achieve your intended results; for installation; and for use; and that the operations of the Software will be uninterrupted or error free. Some States do not allow the exclusion of implied warranties so that the above exclusions may not apply to you.  This warranty gives you specific legal rights.  You may also have other rights which vary from State to State. TSSI does provide updates and enhancements as part of doing business if the customer is covered by a current maintenance contract.

 

Proprietary Rights

 

6.1    This license is not a sale.  Title and copyright to the Software and accompanying documentation, including the enclosed copies and any copy made by you, remain with TSSI or its suppliers, licensers, or successors.

 

Restricted Rights

 

7.1    Software is a ‘commercial item’, as that term is defined at 48 C.F.R. 2.101 (Oct. 1995), consisting of “commercial computer software” and “commercial computer software documentation”, as such terms are used in 48 C.F.R. 12.212 (Sept. 1995).  Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995) (or an equivalent provision, e.g., in supplements of various U.S. government agencies, as applicable), all U.S. Government users acquire the Software with only those rights set forth herein.

 

Limitation of Liability

 

8.1    TSSI's liability arising out of this Agreement shall not exceed the amounts paid by you to obtain the Software.  In no event will TSSI be liable for any loss of data, lost opportunity of profits, cost of cover, or special, incidental, consequential, or indirect damages arising from the use of the Software in this Agreement, however caused and on any theory of liability.  These limitations will apply even if TSSI or an authorized dealer has been advised of the possibility of such damage, and notwithstanding any failure of essential purpose of any limited remedy.  You acknowledge that the amount paid for the Software reflects this allocation of risk.  Some States do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you.

 

Export Restrictions

 

9.1    You acknowledge that the Software may contain “encryption items”, the export and re-export of which may be restricted to certain destinations and end users.  You agree that you will comply in all respects with all applicable U.S. export regulations, rules and laws, including without limitation, the Export Administration Regulations promulgated by the U.S. Department of Commerce and codified at 15 C.F.R. §§ 730-774, the regulations pertaining to sanctions programs and Specially Designated Nationals and Blocked Persons administered by the U.S. Department of the Treasury, and all other similarly applicable rules, regulations and statutes promulgated, administered or enforced by any U.S. government agency.  Without limiting the foregoing, you agree that you will not export or re-export the Software to any destination or end user without making or obtaining all necessary submissions, filings, export licenses or other governmental permissions required under any applicable export regulation, rule or law.  You will indemnify TSSI from and against any liabilities, costs, fines, penalties and other expenses, including reasonable attorney fees, incurred by TSSI as a result of your breach of the foregoing covenants.

 

Termination

 

10.1    This Agreement is effective until terminated.  You may terminate this Agreement at any time by removing from your system and destroying all copies of the Software and the accompanying documentation.  Unauthorized copying of the software or the accompanying documentation or otherwise failing to comply with the terms and conditions of this Agreement will result in automatic termination of this Agreement and will make available to TSSI other legal remedies.  Upon termination of this Agreement, the license granted herein will terminate and you must immediately destroy the Software and accompanying documentation, and all back-up copies thereof.

 

U.S. Government Use

 

11.1    The Software and accompanying documentation are deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable.  Any use, modification, reproduction, release, performing, displaying or disclosing of the Software and accompanying documentation by the U. S. Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.

 

Miscellaneous

 

12.1    This is the entire Agreement between the parties relating to the subject matter hereof and no waiver or modification of the Agreement shall be valid unless signed by each party.  The waiver of a breach of any term hereof shall in no way be construed as a waiver of any other term or breach hereof.  If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement shall remain in full force and effect.  This Agreement is governed by the laws of the State of Oregon without reference to conflict of laws principles.  All disputes arising out of this Agreement shall be subject to the exclusive jurisdiction of the state and federal courts located in Multnomah County, Oregon, and the parties agree and submit to the personal and exclusive jurisdiction and venue of these courts.  If you have any questions about this Agreement, or if you desire to contact TSSI, please write: TSSI, 920 SW Sixth Avenue, 12th Floor, Portland, Oregon 97204 USA, call 503.764.2308, or email legal@tessi.com.

 

12.2    Prices are exclusive of, and you are responsible for, all taxes (including sales, use, consumption, withholding, value-added and similar taxes and other governmental assessments), other than TSSI’s income taxes, that are imposed on or result from your purchase, license, or use of TSSI products and services.

 

12.3    If your license server is a virtual machine, you agree that upon reasonable notice, a TSSI representative may examine your server’s license usages during your regular business hours.

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