Pilot Corporation
End User License Agreement
This End User License Agreement (�EULA�)
defines the terms and conditions of the license between Pilot Corporation, a
Delaware corporation with offices located in San Jose, CA (�Pilot�)
and the Licensee (as defined below) for use of Pilot proprietary Software and
Documentation. Any right to use the Software or Documentation provided to
Licensee by Pilot will be subject to and conditioned upon your acceptance of
the terms and conditions of this EULA, and by downloading, installing, or using
the Software or Documentation, Licensee signifies its agreement with this EULA.
If Licensee does not agree to all of the terms of this EULA, then Licensee may
not download, install, use or copy the Software or Documentation, and you must
delete any copies of it from your systems.
1.
Definitions
a.
�Designated System� means, without
limitation, the specific hardware, workstations, servers, devices (including
mechanical, software only or virtual devices), system product key, system MDC,
system serial number, Node(s), Primary Storage system, and/or Secondary Storage
system, enabled by one instance or copy of Software that is specified by
Pilot at the time the Software is licensed.
b.
�Documentation� means the
manufacturer�s published specifications accompanying Software or made generally
available online at Pilot�s website, (as applicable) and any updates thereto,
in any form or media provided.
c.
�Feature�
means a Software functionality which can be licensed for, and depending on,
each License Type for a Designated System. For Primary Storage, a Per Tebibyte (TiB) Feature License is
available and, depending on Pilot�s product offerings from time to time, may
be available in one tier containing all Features or multiple tiers depending on
the bundle of Features in such tiers. For Secondary Storage, a Per TiB Feature License is available that enables the use of
Secondary Storage. For a Node License, Features can be licensed (not Per TiB) for all Nodes included in the scope of the License.
d.
�License� is the license of a bundle
of usage rights granted to Licensee by Pilot to use the Software and the
Documentation, as further described herein, and shall mean �Perpetual Software
License� and �Software License Subscription,� collectively, and the License
Types that are available under each.
e.
�License Fees� shall mean the fees due by Licensee for the License purchased or
a renewal thereof.
f.
�License Term� shall mean the period
of time Licensee is licensed to use Software, and shall be either:
i.
perpetual if a
Perpetual Software License is purchased and fully paid, or
ii.
the term of the fully
paid subscription if a Software License Subscription is purchased, including
any fully paid renewals thereto pursuant to the Terms of Purchase and this
EULA.
g.
�License Type� means a type of
Software License offered and made available for purchase from time to time and
may include, but is not limited to, Node License types, Primary Storage Per TiB License types, and
Secondary Storage Per TiB License types. A License
for any of the License Types can be purchased as a Perpetual Software License
or, depending on the type, as a Software License Subscription. For
clarification, all legacy Pilot Software licenses and license models are
included in the definition of License Type.
h.
�Licensee� shall mean the individual
or legal entity that downloads, uses, and/or installs Software in any form on
the Designated System, including use following installation and/or download on
the Designated System by a third party on behalf of the Licensee.
i.
�Node� means a device that provides
data movement services or primary services for the software and that may be a
Pilot branded device or a non-Pilot branded device.
j.
�Node License� means a Software
License Type that enables a Node or multiple Nodes and authorizes the use of
the Software on such Node(s).
k.
�Open Source Software� means those
third-party software components identified as such in the Documentation or in
the �About�, �Readme� or similar files in Software, which are required to be
licensed under separate terms and conditions by the supplier of such Open
Source Software (�Open Source License�) and which are delivered as part of the
Software and any Updates thereto. To obtain a copy of the source code for the
Open Source Software, please contact Pilot. A copy of the applicable Open
Source License is provided with the Open Source Software, in the Documentation,
or via the following link on the Pilot website: http://www.Pilot.com/opensource.
l.
�Per Tebibyte�
or �Per
TiB� means a License that is based on
capacity usage with Tebibyte as the base unit (1 tebibyte (TiB) equals
1,099,511,627,776 bytes, or 1024 gibibytes, as
defined by the International Electrotechnical
Commission). The Licensee is charged a $$/per quantity of TiB
($$/xx TiB) License Fee based on the quantity of TiB capacity licensed for use. Per TiB
Licenses are available for certain License Types
including, but not limited to, licenses for Primary Storage and Secondary Storage
(Storage Manager software).
m.
�Perpetual Software License� shall
mean the right to use Software on a perpetual basis.
n.
�Primary Storage� means the storage
tier in which data originates, as allocated into a file system. Primary Storage
devices include, but are not limited to, hard-disk drives, shared block storage
such as iSCSI and Fibre Channel, or other block based
storage devices.
o.
�Sales Quote� shall mean Pilot�s or
Pilot�s Authorized Reseller�s sales or price quote against which Licensee placed an order concurrently or prior to the
effectiveness of this EULA.
p.
�Secondary Storage� means the storage
used as part of an archiving and/or data protection scheme, generally
configured via policy within StorNext. Data in
Secondary Storage originates from a Primary Storage source and is then copied
to Secondary Storage. Secondary Storage includes, but is not limited to, tape,
public cloud, private cloud, NFS, and block based storage devices.
q.
�Software� means the current version
of Pilot proprietary software components or software Features identified on,
or the License to which is identified by type on, the Sales Quote and/or
accompanying this EULA, and any Updates thereto in executable/object code
format and/or accessed by remote means. Software, as the defined term is used
herein, does not include Open Source Software, although some of the Software
components may work together with, rely on, or be relicensed as Open Source
Software components by Pilot, such Open Source Software components are
subject to their respective separate licenses as specified in the Documentation
and shall not be deemed as part of the Software and thus not subject to this
EULA, provided that by accepting this EULA, the Licensee agrees to be bound by
such separate licenses as are identified in the Documentation.
r.
�Software License Subscription� shall
mean Software licensed and paid for on a subscription basis.
s.
�Standard Maintenance and Support� as
used herein shall refer to: (i) �Maintenance,�
defined as the provision by Pilot of any non-custom Updates, workarounds, or
corrections made generally available by Pilot to customers entitled to them,
and (ii) �Support,� defined as the e-mail, web or telephone technical services
that Pilot offers regarding the use and function of the Software. Maintenance
and Support are made available by Pilot to customers based on terms and
conditions under a separately purchased support contract for some License
Types, or at no additional charge under a Software License Type that includes
such Maintenance and Support in the License Fees. For the avoidance of doubt,
Maintenance does not include the right of access to and use of new or bundled
product offerings made available by Pilot for a fee, unless licenses for such
offerings are separately purchased.
t.
�Terms of Purchase� shall mean the
Pilot sales and support terms and conditions (however titled) accompanying
the Sales Quote (also available at www.Pilot.com)
and incorporated herein, unless other negotiated terms of purchase have been
agreed upon in writing between, and executed by, Licensee and Pilot. A
Pilot issued document (including Sales Quote and confirmation letter, however
named) or online interface (such as Pilot�s StorNext
licensing website, however named, that serves as a license management tool)
that identifies, monitors, or provides visibility into, the specific licensed
Software and usage rights being licensed including, without limitation,
Designated System, License Type, version, quantity, capacity, License Term,
territory, status, authorization, usage, and such other license compliance
elements as may be applicable, shall be considered included and incorporated
into both the Terms of Purchase and this EULA.
u.
�Update� means changes to Software or
Firmware that Pilot designates as bug fixes, or as minor or incremental
updates, which may be designated by a change in the number to the right of the
decimal point of the version number such as 1.1, 1.2, 1.3, etc., or which may
be included in Standard Maintenance provided as part of a Software License
Subscription or a Perpetual Software License.
2.
License
a.
License Grant.
Licenses shall be sold and granted as either a Perpetual Software License or a
Software License Subscription as described on the Sales Quote. Subject to, (i) Licensee�s compliance with the Terms of Purchase and
this EULA, (ii) payment in full of the applicable License Fees, and (iii) the
license constraints applicable to the License Type purchased, Pilot grants to
Licensee, for the period of the License Term purchased, a limited,
personal, non-exclusive, non-transferable license for internal use, without the
right to sublicense, to (A) use, install, and operate, within the authorized
scope of the License Type purchased for the Designated System, a single copy
of, and/or manage access to, the purchased Software or Features on the
Designated System, and within the purchased capacity of the fully paid Per TiB license(s), or of the total amount of data that the
Designated System can or has been enabled to hold and/or process or that may be
under authorized management by the licensed Software, as specified by Pilot
in the Terms of Purchase applicable to Licensee�s purchase of the Software
License, and (B) make a reasonable number of copies of the Documentation for
Licensee�s internal use, and use the Documentation solely in support of
Licensee�s internal authorized use of the Software.
b.
By accessing and commencing use of the Software
under these terms and the Terms of Purchase, Licensee agrees to obtain
additional Licenses for the Software before it exceeds, or is likely to exceed,
or if Pilot has notified Licensee that it exceeds or will soon exceed, any of
the scope, capacity, time and use limitations applicable to Licensee�s License
Grant, and failure to do so is a violation of the terms of the License. Should
Licensee exceed any such License limitations without payment therefor Licensee
shall be out of compliance and shall have a 30-day grace period to purchase the
additional or renewal license in order to return to or remain in compliance.
Failure to do so may result in reduced functionality of the Software or its
Features, or the withholding of delivery of license keys or the provisioning of
Maintenance and Support. In addition, Pilot shall have the right to
accelerate the due date of all remaining payments and Licensee will owe the
entire outstanding balance as soon as Licensee receives written notice from
Pilot that payment is overdue.
c.
Exclusions. The
License does not include the right to sublicense or transfer the Licensee�s
user rights in the Software or the Documentation to any third party by means of
sale, lease, loan, rent, license or otherwise. Except if otherwise explicitly
agreed in writing by Pilot, Licensee is not entitled to resell or distribute
the Software or the Documentation. Licensee expressly acknowledges that
operation of the Software requires that Licensee has or obtains, at Licensee�s
sole cost and expense, appropriate hardware and third-party software such as
(but not limited to) operating systems. This EULA does not grant any license in
or to any other software than the Software, and Licensee is responsible for
procuring all such necessary third-party software or other hardware or
equipment.
d.
Open Source. Licensee acknowledges that
Open Source Software is licensed separately pursuant to the applicable Open
Source License. Licensee�s use of any Open Source Software shall be subject to
and Licensee agrees to comply with the applicable restrictions and other terms
and conditions of the applicable Open Source License.
e.
Licensee Feedback.
Licensee is encouraged to communicate to Pilot any useful or relevant information
that may complement or improve the Software or may be useful to Pilot�s
activities, such as technical improvements to the Software, marketing
opportunities or existence of competing solutions. To the extent that Licensee
provides such information to Pilot, Pilot will be entitled to freely use
and exploit such information (even after expiration or termination of the
License) for whatever reason or purpose and in whatever form or manner, without
reference to its source or other obligation to Licensee.
f.
US Government Rights.
If the Licensee is the United States government, Licensee understands and
agrees that the Software, Documentation, Maintenance, Support, installation and
repair services are provided as �Commercial Items� as defined at 48 CFR 2.101
and are being licensed to U.S. Government end users consistent with 48 CFR
12.212 and DFARS Section 227.7202, as applicable.
g.
Import/Export Regulation. Software and
Documentation, including technical data, is subject to U.S. export control
laws, including the U.S. Export Administration Act and its associated
regulations, and may be subject to export or import laws and regulations in
other countries. Licensee agrees to comply strictly with all such laws and
regulations and acknowledges that it has the responsibility to obtain licenses
to export, re-export, or import Software or Documentation. Without limiting the
generality of the foregoing, Licensee will not export, make accessible, or
transfer the Software, or any direct product thereof, to any destination,
person, national or entity blocked, denied, designated, restricted or
prohibited by the export control laws and regulations. Licensee expressly
acknowledges and agrees that only Licensee, and not Pilot, is responsible for
verifying whether the applicable laws and regulations of the country where
Licensee intends to install and use the Software and Documentation, allows the
installation and/or use of the Software and Documentation, and for obtaining
all necessary permits, licenses and authorizations required to be able to so
install and use the Software and Documentation.
h.
License Compliance
Monitoring and Reporting. Licensee will monitor and track access to
and use of the Software and shall have sole responsibility to ensure Licensee�s
compliance with this EULA and all laws and regulations which apply to the
Software, its installation, use, payment for use, and accounting thereof,
including the Sarbanes-Oxley Act. Licensee hereby agrees that Pilot�s
compliance with such laws requires it to maintain controls over accurate
financial reporting of Software usage and payment therefor. Accordingly, Licensee
shall input a product key when prompted to do so to activate the Software, and
upon request Licensee hereby agrees to provide to Pilot, or provide Pilot
access to, relevant payments and usage information, documents, Log-files, etc.,
on at least a quarterly basis (including through uploads to Pilot�s licensing
website and license management tool) as reasonably necessary to permit Pilot
to monitor Software access and usage and to allow it to have a reasonable
assurance that it is and remains in compliance with the accuracy and integrity
requirements for financial reports relating to Licensee�s acquisition, payment
and use of the Software License purchased from Pilot. Licensee will not use
the Licensed Software or the license management tool in a manner that
circumvents or interferes with the proper operation of the Software or license
management tool, or any other technological measure that controls,
regulates, monitors or reports access to and usage of the Software.
i.
Standard Maintenance and
Support. Standard Maintenance and Support (excluding onsite
support/professional services) related to the Licensed Software shall be
governed by the applicable Pilot support terms and conditions (however
titled) included in the Terms of Purchase on the Sales Quote, and those terms
are incorporated herein by reference. The License Fees for some License Types
include the Standard Maintenance and Support and, subject to full payment
thereof, for such Licenses Standard Maintenance and Support is provided for the
duration of the purchased License Term applicable to the Licensed Software and
shall co-terminate with the expiration or termination of such License Term.
Support for License Types that do not include Standard Maintenance and Support
in the License Fee shall be provided for the duration of the separately
purchased support contract. Standard Maintenance and Support services that
remain unused at the end of, or upon termination of, the License Term will be forfeited and Licensee shall not be entitled to any refund
for unused portions.
3.
Software Ownership and Protection
a.
Title to Software.
The Software, Open Source Software and Documentation are licensed, not sold.
All right, title, and interest in and to the Software, Open Source Software and
Documentation and in any ideas, know-how, and programs which may be developed
by Pilot in the course of providing support and maintenance, including any
enhancements or modifications and all intellectual property rights embodied
therein, will at all times remain the property of Pilot or its licensors.
Licensee hereby acknowledges that Software is protected by the copyright laws
and other laws pertaining to intellectual property and proprietary rights in
the United States and other countries. Licensee is aware that this License
confers only the right to the use of the Software under the scope and capacity
limitations applicable to the purchased License, while this License is in
effect. It does not convey any rights of ownership in or to the Software, Open
Source Software or Documentation. Nothing in this EULA shall limit in any way
Pilot�s right to develop, use, license, create derivative works of, or
otherwise exploit the Software or the Documentation, or to permit third parties
to do so. Licensee shall reproduce and include all, and shall not remove, alter
or obscure any, copyright, trademark and other proprietary notices in and on
any copies of the Software and Documentation.
b.
Restrictions.
Licensee will not itself or permit others to do any of the following:
i.
use the Software or
exceed the License Grant without payment for such use;
ii.
sell, sublicense,
transfer, assign, publish, disclose, display, provide access via a network or
otherwise make available the Software or Documentation or any copy thereof to
others;
iii.
remove, obscure, or alter any copyright, trade
secret, trademark, patent or other proprietary rights notice affixed
to or displayed on the Software or Documentation;
iv.
modify, merge with
other programs or translate any portion of the Software or Documentation into
any other assembly or language;
v.
attempt to reverse-assemble, reverse engineer,
decompile, disassemble or otherwise reduce the Software to any human
perceivable form, or extract or attempt to extract any source code, algorithms,
methods, ideas, techniques, workflows or hierarchies from or embodied in the Software or any portion thereof, except to the extent
expressly permitted by law;
vi.
modify, adapt, translate, rent, lease, loan or
create derivative works based upon, distribute, display or publish (publicly or
otherwise), relicense or sublicense, the Software, Documentation or any part
thereof, or use the Software or Documentation for third-party training,
commercial time-sharing or service bureau use;
vii.
disclose or publish
performance benchmark results for the Software without the prior written
approval of Pilot; or
viii.
time-sharing or the
rental of the Software or use of the Software in the development or marketing
of a competitive or compatible product.
c.
Access Protections.
Licensee agrees to secure and protect the Software, Designated Systems and Documentation,
and copies thereof, from unauthorized access and use in a manner consistent
with Pilot�s rights therein, and to take appropriate action to meet its
obligations in this EULA by instruction of or agreement with its employees,
agents, subcontractors or others who are permitted access to the Software,
Documentation and Designated Systems. All derivative works, programs or copies
developed by or for Licensee whether in compliance with, or in violation of, this
EULA, including translations, compilations, partial copies and up-dates, are
owned by Pilot ab initio, or otherwise the proprietary rights thereto shall
hereby be deemed automatically assigned to Pilot as of the moment of their
creation.
d.
Licensee Responsibility for
Data Protection. Licensee has sole responsibility for use of
Software and any information entered, used, or stored thereon, including
responsibility for protection of its data against modification, destruction, or
disclosure, and for the accuracy and integrity of the data. Pilot assumes no responsibility for Licensee�s negligence or failure to
protect its data. Licensee agrees to follow the operation procedures published
by Pilot including, but not limited to, procedures for routine maintenance of
the Software. Licensee shall implement, and is solely responsible for
implementing, procedures for the back-up and protection of data and other
information in the event of errors or malfunctions of the Software or
Designated Systems on which the Software is used. Licensee shall properly train
its staff in the use and application of the Software and of any Designated
Systems on which the Software is used or installed.
e.
Restrictions on Use with
Multiple Devices. Unless Pilot explicitly grants Licensee further licenses, any registration codes Pilot
may send Licensee (whether by electronic or physical means,
and whether together with or separately from the Software) may be installed and
used on one computer only. Licensee may transfer a license and registration
from one computer to another by clearing the registration details and removing
the software from the old computer before installing it on the new one. If Licensee is an individual and is the main user of more
than one computer Licensee may copy the Software and
install a single user registration code onto no more
than two computers providing that: (i) either they
are at different physical sites or one is a fixed desktop computer and the
other is a portable laptop computer, (ii) Licensee is the
main user of both computers, and (iii) Licensee ensures that instances of the
Software are never simultaneously running on both machines and that the
Software is only used by Licensee.
f.
Registration Codes or Keys.� Any registration keys or other codes that Pilot
supplies to Licensee for use with the Software (whether for
evaluation purposes or not) are confidential and personal to Licensee. Any computer files created by the Software
and containing details of Licensee�s registration key are
confidential and may not be copied or revealed to anyone else. Licensee agrees to keep all such codes confidential
and not make copies or permit their use other than under the conditions
permitted by this Agreement. If Licensee intentionally
reveals or allows these codes to be used by anyone who is not entitled to use
them then Licensee will be liable for any and all losses that Pilot
incurs as a result.
4.
Term and Termination
a.
Commencement and Duration.
The term of this EULA commences on the earlier of (i)
the date of shipment of the Software to the Licensee,(ii) the date on which the
Software is delivered to Licensee or otherwise made available to Licensee for
access or download, or (iii) if the Software is provided to Licensee through a
reseller or a distributor, the date that Pilot provides the Software (or
access to the Software) to such reseller or distributor on behalf of Licensee, and
will remain effective through the purchased License Term unless and until
earlier terminated by Pilot or not renewed by Licensee in accordance with the
terms of this EULA.� A License purchased
as a Software License Subscription, upon expiration of the initial License Term
or renewal term thereof, and without written notice of Licensee�s intent not to
renew at least sixty (60) days prior to expiration of the then current term,
will automatically renew for another consecutive term of twelve (12) months (or
of the same duration as the License Term originally purchased) and Pilot will
issue to Licensee a Sales Quote and/or invoice for the applicable renewal
subscription License Fee due, which shall be based upon a
true-up/reconciliation of the licensed capacity, scope and usage of the
Software with the actual capacity and usage of the Software as of the date of
the renewal, in order for Licensee to remain in compliance.
b.
Termination for Cause.
Without prejudice to either party�s other rights accorded to it by this EULA or
by law, Pilot may terminate this EULA with immediate effect by written notice
to Licensee if Licensee is in non-compliance herewith or breaches this EULA in
any way, and does not in good faith cure, or initiate a cure of, such breach
within thirty (30) after receipt of notice of such breach. Licensee�s failure
to make full payment for the Software License purchased and/or for use of the
Software in excess of the scope of the paid-for License shall constitute breach
hereof.
c.
Termination or Non-Renewal
of Software License. Licensee shall not be entitled to a refund of
any pre- paid License Fees upon termination or non-renewal of a License for any
reason and regardless of the effective date of termination or non-renewal. In
addition, Pilot shall be entitled to charge in arrears, and receive payment of, License Fees for any usage or
continued usage of the Software in excess of the paid-for License scope or
capacity and/or beyond the period of the paid-for License Term in the event
such usage extends beyond the effective date of termination or non-renewal of
the License.
d.
Effect of Termination.
If the License Term expires or is terminated for any reason:
i.
Licensee�s right to use Software shall cease
immediately;
ii.
Licensee shall immediately cease access to or
use of the Software and Documentation;
iii.
Licensee will continue to have the ability to
retrieve data for the time period specified by Pilot if data retrieval
functionality will cease;
iv.
Pilot shall have no further obligation to
support Software functionality (co-termination of support contract).
v.
Licensee shall have no further access to
Software Updates.
vi.
Upon request by Pilot, Licensee shall certify,
within thirty (30) days after the effective date of termination that access has
been terminated and/or that Licensee has permanently deleted, destroyed, or, at Pilot�s option, has returned to Pilot,
the Software and the Documentation and all copies thereof.
5.
Disclaimer and Limitation of Liability
a.
THE LICENSEE HAS THE SOLE RESPONSIBILITY FOR THE
ADEQUATE PROTECTION AND BACK- UP OF ITS DATA USED IN CONNECTION WITH SOFTWARE
AND OPEN SOURCE SOFTWARE. IN NO EVENT SHALL Pilot BE LIABLE TO CUSTOMER OR
ANY THIRD PARTY UNDER ANY THEORY OF LIABILITY FOR LOST PROFITS AND/OR ANY OTHER
INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, HOWEVER
CAUSED, INCLUDING, WITHOUT LIMITATION, (I) LOSS OF REVENUE, BUSINESS OR USE;
(II) LOSS OF ANTICIPATED SAVINGS; (III) LOSS OF ACTUAL OR ANTICIPATED BUSINESS
AND/OR GOODS; (IV) LOSS OF GOODWILL; (V) LOSS AND/OR CORRUPTION OF DATA AND/OR
OTHER INFORMATION, (VI) LOSS AS A RESULT OF THIRD PARTY CLAIMS; AND/OR (VII)
THE COST OF PROCURING REPLACEMENT GOODS AND/OR SERVICES. FOR THE AVOIDANCE OF
DOUBT, THE TYPES OF LOSS AND/OR DAMAGE SPECIFIED IN (I) THROUGH (VII) SHALL NOT
CONSTITUTE DIRECT LOSSES FOR THE PURPOSES OF THIS EULA. THE FOREGOING
LIMITATION WILL APPLY EVEN IF Pilot HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES OR IF SUCH DAMAGES ARE FORESEEABLE. NOTWITHSTANDING ANY OTHER
PROVISION OF THIS AGREEMENT, AND TO THE FULLEST EXTENT ALLOWED UNDER APPLICABLE
LAW, Pilot�S AGGREGATE LIABILITY TO CUSTOMER FOR CLAIMS ARISING FROM THE SOFTWARE, THE DOCUMENTATION OR THIS EULA, WHETHER FOR BREACH,
INFRINGEMENT, IN TORT, INDEMNIFICATION OR OTHERWISE, SHALL BE LIMITED TO THE
LICENSE FEES ACTUALLY RECEIVED BY Pilot HEREUNDER FOR CUSTOMER�S USE OF THE SOFTWARE.
FOR THE AVOIDANCE OF DOUBT, Pilot SHALL HAVE NO LIABILITY OR RESPONSIBILITY
FOR PROBLEMS IN THE SOFTWARE, DOCUMENTATION OR OTHER DELIVERABLES CAUSED BY
MISUSE OR THE MALFUNCTION OF THE NETWORK OR ANY THIRD-PARTY SOFTWARE, HARDWARE
OR EQUIPMENT OR ANY OTHER CAUSE NOT ATTRIBUTABLE TO Pilot.
b.
ALL SOFTWARE AND OPEN SOURCE SOFTWARE IS
PROVIDED �AS-IS�, WITHOUT ANY WARRANTY OF ANY KIND, AND Pilot FURTHER
DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE
SOFTWARE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF
NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. NEITHER
Pilot NOR THE LICENSORS OF OPEN SOURCE SOFTWARE SHALL HAVE ANY LIABILITY FOR
ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES
(INCLUDING WITHOUT LIMITATION LOSS OF DATA AND LOST PROFITS), HOWEVER CAUSED
AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT
(INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OR
DISTRIBUTION OF THE SOFTWARE OR OPEN SOURCE SOFTWARE, EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
6.
General
a.
Non-Waiver. The
failure by Pilot at any time to enforce any of the provisions of this EULA or
any right or remedy available hereunder or at law or in equity, or to exercise
any option herein provided, shall not constitute a waiver of such provision,
right, remedy or option or in any way affect the validity of this EULA. The
waiver of any default by Pilot shall not be deemed a continuing waiver but
shall apply solely to the instance to which such waiver is directed.
b.
Verification and Audit.
Upon ten (10) days� notice to Licensee, Pilot shall have the right to (or to
have a third party) inspect and audit Licensee�s books, records and systems to
confirm Licensee�s compliance with the use, scope and capacity of the License
it purchased and the provisions of this EULA. Licensee agrees to fully
cooperate in good faith with any such inspection and audit and shall provide
all access to its books, records and systems as reasonably required for Pilot
to confirm Licensee�s compliance. In the event that the audit reveals
unauthorized use of the Software, or use beyond the purchased and paid for
License Term or scope of usage limitations and restrictions applicable to the
Software, then, without prejudice to Pilot�s other rights (including
termination of the License), Licensee shall promptly pay the License Fees to
cover all unauthorized, unlicensed and/or unpaid use of the Software disclosed by
the audit starting from the date such use was presumed to have begun. A
reinstatement fee of fifty percent (50%) of the License Fees payable for such
unlicensed use may apply. Licensee agrees that all unlicensed use of the
Software shall be presumed to have started on the first day on which the
Software was made available to Licensee (through shipment, delivery or
otherwise), unless Licensee proves otherwise to the satisfaction of Pilot. If
the audit determines that Licensee underpaid the License Fees by more than five
percent (5%), Licensee shall pay Pilot�s reasonable costs and expenses for
the audit (including transportation, travel, and if applicable the cost of the
third-party auditor). Such payments shall be in addition to
and without limitation of any rights or remedies which Pilot may have
hereunder, at law, or in equity, arising out of or related to any other breach
by Licensee of its obligations hereunder, nor shall it relieve Licensee of
otherwise complying with this EULA. This Verification/Audit clause shall
survive the expiration and/or termination of this EULA for any reason and shall
stay effective until three (3) years after the expiration or termination of
this EULA.
c.
No Assignment or Modification. This EULA
may not be assigned, delegated or otherwise transferred by Licensee, by merger,
acquisition, change of control, operation of law or otherwise, without the
express prior written authorization of Pilot, which may withhold consent in
its sole discretion. Any attempt by Licensee to assign, delegate or otherwise
transfer this EULA in violation of the foregoing restrictions shall be null and
void and a breach and Pilot shall have the right, in addition to any other
remedy available at law or in equity, to terminate this EULA immediately or at
any time subsequent to such breach. This EULA can only be modified by a written
agreement executed by the parties.
d.
MPEG-2 Notice.
To the extent that the Software contains MPEG-2 encoding and/or decoding
functionality, the following provision applies: ANY USE OF THIS PRODUCT OTHER
THAN CONSUMER PERSONAL USE IN ANY MANNER THAT COMPLIES WITH THE MPEG-2 STANDARD
FOR ENCODING VIDEO�
INFORMATION FOR PACKAGED MEDIA IS EXPRESSLY PROHIBITED WITHOUT A
LICENSE UNDER APPLICABLE PATENTS IN THE MPEG-2 PATENT PORTFOLIO, WHICH LICENSE
IS AVAILABLE FROM MPEG LA, L.L.C, SEE HTTP://WWW.MPEGLA.COM.
e.
H.264/AVC Notice.
To the extent that the Software contains H.264/AVC encoding and/or decoding
functionality, the following provision applies: THE H.264/AVC FUNCTIONALITY IN
THIS PRODUCT IS LICENSED UNDER THE AVC PATENT PORTFOLIO ONLY FOR THE PERSONAL
AND NON-COMMERCIAL USE OF A CONSUMER TO (i) ENCODE VIDEO
IN COMPLIANCE WITH THE H.264/AVC STANDARD ("AVC VIDEO") AND/OR (ii)
DECODE AVC VIDEO THAT WAS ENCODED BY A CONSUMER ENGAGED IN A PERSONAL AND
NON-COMMERCIAL ACTIVITY AND/OR AVC VIDEO THAT WAS OBTAINED FROM A VIDEO
PROVIDER LICENSED TO PROVIDE AVC VIDEO. NO LICENSE IS GRANTED OR SHALL BE
IMPLIED FOR ANY OTHER USE. INFORMATION REGARDING OTHER USES AND LICENSES MAY BE
OBTAINED FROM MPEG LA L.L.C. SEE HTTP://WWW.MPEGLA.COM.
f.
MPEG-4 Visual Standard
Notice. To the extent that the Software contains MPEG-4 encoding
and/or decoding functionality, the following provision applies: THE MPEG-4 FUNCTIONALITY IN THIS PRODUCT IS LICENSED UNDER THE
MPEG-4 VISUAL PATENT PORTFOLIO LICENSE ONLY FOR THE PERSONAL AND NON-COMMERCIAL
USE OF A CONSUMER TO (i) ENCODING VIDEO IN COMPLIANCE
WITH THE MPEG-4 VISUAL STANDARD ("MPEG-4 VIDEO") AND/OR (ii) DECODING
MPEG-4 VIDEO THAT WAS ENCODED BY A CONSUMER ENGAGED IN A PERSONAL AND
NON-COMMERCIAL ACTIVITY. NO LICENSE IS GRANTED OR SHALL BE IMPLIED FOR ANY
OTHER USE. ADDITIONAL INFORMATION INCLUDING THAT RELATING TO PROMOTIONAL,
INTERNAL AND COMMERCIAL USES AND ADDITIONAL LICENSING MAY BE OBTAINED FROM MPEG
LA, LLC. SEE HTTP://WWW.MPEGLA.COM.
g.
Governing Law and Venue.
This EULA shall be governed by and construed in accordance with the laws of the
State of California, United States of America, as if performed wholly within
the state and without regard to any conflict of laws rules thereof. All
disputes arising under this EULA shall be resolved by a court of competent
jurisdiction in Santa Clara County, California and the parties hereby
irrevocably agree to submit to the personal and exclusive jurisdiction and
venue of such courts.
h.
Modification.
This EULA may not be modified or amended except in a writing signed by a duly
authorized representative of each party. No other act, document, usage or
custom will be deemed to amend or modify this EULA.
i.
Severability. If any part of this EULA is found by a court of competent
jurisdiction or other competent authority to be invalid, unlawful or
unenforceable then such part will be severed from the remainder of this EULA,
which will continue to be valid and enforceable to the fullest extent permitted
by applicable law. The invalid or unenforceable part or provision shall be
replaced with a provision negotiated in good faith between the parties which
accomplishes, to the extent possible, the original business purpose of such
part or provision in a valid and enforceable manner.
j.
Language. This
EULA is in the English language only, which language shall be controlling in
all respects, and all versions hereof in any other language shall be for
accommodation only and shall not be binding upon the parties. All
communications and notices to be made or given pursuant to this EULA shall be
in the English language. Licensee waives any right to have it written in any
other language. Section headings are for convenience only.
k.
Confidentiality Obligations.
�Confidential Information�
shall mean the Software, its source code, the content of the Documentation, any
financial, statistical, business, technical, copyright, and confidential or
proprietary information relating to the Software or to Pilot�s business,
software, products and/or services, which is disclosed by Pilot or its
affiliates to Licensee, or which is deduced from the Software or Pilot�s
business, software, products and/or services by Licensee; Licensee agrees to
keep the Confidential Information of Pilot confidential and not to disclose
it to third parties, unless expressly otherwise agreed by a duly authorized
representative of Pilot. Licensee shall be entitled to disclose Pilot�s
Confidential Information only to those of its personnel, consultants and agents
that have a reasonable need to know such Confidential Information for the
purposes of this EULA, and provided the Licensee instructs its personnel,
consultants and agents to keep such information confidential by using the same
care and discretion that it uses for its own Confidential Information and in no
event, less than a reasonable degree of care. Confidentiality Obligations set
forth in this section shall not apply to any information which: (i) is published or otherwise becomes available to the
general public through no fault of Licensee; (ii) has been validly obtained by
Licensee from a third party not being bound by any confidentiality or similar
secrecy obligation; (iii) was in Licensee�s possession without proprietary
restrictions prior to the date of disclosure by Pilot to Licensee; (iv) was
developed by Licensee without reference to the Confidential Information; or (v)
is required to be disclosed pursuant to applicable law, to the extent of such
requirement only and provided that Licensee shall, if feasible, give to Pilot
prior notice of such proposed disclosure and a reasonable opportunity to
contest such disclosure. Upon termination of this EULA, Licensee shall have a
senior officer certify to Pilot within thirty (30) days of termination that
it has destroyed or returned to Pilot, at Pilot�s option, all Confidential
Information, and all copies thereof, whether or not modified or merged into
other materials.
l.
Force Majeure.
Each party shall be excused from delays in performing or its failure to perform
hereunder (other than payment of monetary obligations) to the extent that such
delays or failures result from any event beyond the reasonable control of a
party that causes the delay in or failure to perform such party�s obligations
under this EULA, including (but not limited to) natural disasters, riots, war
and military operations, national or local emergencies, actions or omissions of
the government, economic disputes of whatever nature, actions of employees,
fire, flooding, faults or errors in a third-party�s hardware or software,
unavailability of third party communication lines or devices, lightning
strikes, explosions, collapses, Internet or other communication network
�brownouts� or failures, as well as any action or omission of a person or
entity beyond the reasonable control of the affected party. The affected party
will cooperate with the other party and reasonably assist this other party in
minimizing the impact of the circumstances on the other party.
m.
References.
Licensee agrees that Pilot may use Licensee�s name and logo in press
releases, product brochures, financial reports and other promotional materials
in any media indicating that Licensee is a customer and end user of Pilot.
n.
Representations.
Each party represents and warrants to the other that it has full authority to
enter into this EULA, that the execution and/or performance of this EULA does
not and will not violate or interfere with any other agreement by which such
warranting party is bound; and that the warranting party will not enter into
any agreement whose execution/performance would violate or interfere with this
EULA.