This Terms of Service is a legal agreement between You and SmartBear, that governs your license and use of our proprietary Software directly from SmartBear or Reseller (“EULA” or “Agreement”).
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING A QUOTE OR ORDER THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS.
You may not access the Software if You are a direct competitor, except with Our prior written consent.
"Add-on" means a separate component which works in conjunction with SmartBear products to provide additional or enhanced functionality. Add-ons include, but are not limited to, plug-ins, macros, extensions and libraries.
"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity.
"Control" for purposes hereof, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Documentation” means the published and generally available on-line user and administrator materials SmartBear delivers or makes available with the Software, including on-line help, as updated from time to time.
“Hosted” means that the Software is available as a service (SaaS) and hosted by SmartBear or authorized provider.
“On-Prem” means that the Software has to be installed on a server, desktop, virtual machine or container.
"Order" means SmartBear’s online purchase, quote or other document for placing orders entered into between you and SmartBear and identifies the Software license type, quantity and access information ordered by you. An Order shall be deemed incorporated herein by reference.
“Professional Services” means those set-up, integration, configuration, consulting and/or training services specified on an Order Form, to be provided by SmartBear or its agent.
“Reseller” means an authorized reseller or distributor who may license Software to You.
"Software" means only the licensed SmartBear software and Updates provided by SmartBear, solely in object code form, and Documentation.
“Maintenance and Support” mean those services provided to you if you have purchased Support Services from SmartBear. Additional maintenance and support purchased through a Reseller shall be subject to any additional terms and conditions set forth in your agreement with such Reseller.
“Maintenance Period” means that number of months set forth in the applicable Order which you have either purchased Maintenance and Support separately or they have been bundled with the applicable license fee, and commence upon the initial delivery of the Software. The term shall be twelve months unless otherwise agreed upon in an Order.
“Update” means any subsequent release of the Software that SmartBear generally provides to its customers who are enrolled in and fully paid Maintenance and Support. Updates do not include any Software that is marketed and priced separately by SmartBear.
“User” means an individual who is authorized by you to use the Software in accordance with this Agreement and the applicable license type set forth herein, and who has been supplied usage credentials. A User may include but is not limited to your employee, consultant, contractor and agent with which you transact business.
“You” means company or other legal entity for which you are accepting this Agreement and Affiliates of that company or entity.
2. Who We Are.
If you acquired Software in the United States or Canada, “We”, “Us”, “Our” or “SmartBear” means SmartBear Software Inc., a Delaware corporation with its principal place of business at 450 Artisan Way, Somerville, MA 02145, together with its Affiliates and their licensors.
If you acquired Software outside of the United States or Canada, “We”, “Us”, “Our” or “SmartBear” means SmartBear (Ireland) Limited together with its Affiliates and licensors. SmartBear (Ireland) Limited has its principal place of business at 3rd Floor Dockgate, Unit 19, Merchants Rd., Galway, Ireland, together with its Affiliates and licensors.
3. Free Trial Version.
If you register for a free trial, SmartBear will make certain Software available to you on a temporary basis (the “Trial Version”) free of charge until the end of the free trial period for which you registered or ordered the applicable Software. The Trial Version may be used only to review, demonstrate and evaluate the Software and may have limited features. The Trial Version may cease operating after the applicable time period or number of uses based on an internal metering mechanism within the Trial Version itself. Regardless of any such metering, you must stop use at the end of such period or number of uses.
You shall not (a) in the aggregate, install or use more than one copy of the Trial Version of the applicable Software, (b) download the Trial Version of the Software under more than one username, (c) alter the contents of a hard drive or computer system to enable the use of the Trial Version of the Software for an aggregate period in excess of the trial period for one license to such Trial Version, (d) disclose the results of software performance benchmarks obtained using the Trial Version to any third party without SmartBear’s prior written consent, (e) use the Trial Version for any commercial training or any application deployment or ultimate production purpose, (f) use the Trial Version of the Software to update Software that is no longer eligible for Support Services or (g) use the Trial Version of the Software for a purpose other than the sole purpose of determining whether to purchase a license to the Software.
ANY DATA YOU ENTER INTO THE SOFTWARE, AND ANY CONFIGURATIONS MADE TO THE SOFTWARE BY OR FOR YOU DURING ANY FREE TRIAL MAY BE PERMANENTLY LOST UNLESS YOU PURCHASE A LICENSE TO THE SAME SOFTWARE AS THOSE COVERED BY THE TRIAL, PURCHASE UPGRADED SOFTWARE, OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD.
NOTWITHSTANDING SECTION 9 (LIMITED WARRANTY AND DISCLAIMER), DURING A FREE TRIAL, THE SOFTWARE AND ANY APPLICABLE SERVICES ARE PROVIDED “AS-IS” WITHOUT WARRANTY AND SMARTBEAR HAS NO RESPONSIBILITY FOR DATA RETENTION OR RESULTS FROM TRIALS.
4. License Model.
SmartBear offers an On-Prem or Hosted solution, depending upon the product.
For On-Prem, you will receive a Perpetual or Subscription license depending upon the product licensed. For Hosted, you will receive a Subscription license.
“Perpetual” means an indefinite Software license, except as otherwise set forth herein. For the first year, you receive Maintenance and Support. After the first year, You must purchase Maintenance and Support in order to receive those services.
“Subscription” means Software is licensed only for the period of time set forth in the Order and you receive Maintenance and Support during that period.
5. License Grants.
Perpetual - SmartBear grants you a non-exclusive, non-transferable, non-sublicensable, perpetual, limited license to install and use the Software on compatible devices without any end date. You may install and use the Software solely as permitted by the license type purchased, which license type is specified in the applicable Order Form and below.
Hosted – SmartBear grants you a non-exclusive, non-transferable, non-sublicensable, limited license to access and use the Software, corresponding documentation, online or electronic documentation, and, if any, associated media and materials, and, if applicable, third party software programs supplied by SmartBear solely for Customer's internal business purposes during the term of this Agreement. Customer may access and use the Hosted Services as permitted by the subscription type purchased as described below.
6. License Types.
The licenses granted in this section are subject to all terms and conditions set forth in this Agreement.
Fixed (Named) License: Software is single instance meaning it can be activated by only one User, with a unique username and password, on a single computer, computing device, or virtual machine and has a fixed license key. You must acquire and dedicate a license for each separate User that you wish to access the Software. A separate license is required for each User and may not be shared. The Software may not be reassigned other than for the permanent transfer of the Software license to another person if the eligible User is no longer employed by you. An eligible User may access the Software with a unique username and password on one device at a time.
Floating (Concurrent) License: The Software can be activated for different users and machine combinations, but only one at a time and has a floating license key. The number of running suppoinstances of the Software or the number of individuals simultaneously having access to the Software may not exceed at any one time the number of floating seats licensed. One computer or computing device shall be designated as the “license server” where the license is installed and all other devices will require access to the license server to run the Software.
Node-Locked License: Software is licensed for use on a specified computer or computing device. This license will be “bound” to the designated computer or computing device and will only function on this computer or computing device. This license permits the use of a single instance of the Software which functions on a single computer or computing device.
Server Application License: The Software application can be installed on one server machine and may be accessed by many users. This license key is dedicated to the designated computer or computing device and will only function on this computer or computing device.
Usage-Based License Software is licensed on a time-based or unit-based basis during the subscription term as set forth in an Order and restricted to a computer or computing device, which is applicable to the Alertsite and VirtServer products.
Freeware or Free Version License: An individual User is specifically named in the Software registration and may only be used on one computer or computing device at a time. Licenses are not eligible for product support services other than the materials and discussion groups that may be accessed generally via the SmartBear online community at https://community.smartbear.com.
7. Software Delivery.
On-Prem. Delivery of the Software to you shall be made by electronic means and deemed to have occurred when the Software has been available to you for download or by providing you with a key for such usage. SmartBear is expressly authorized by you to ship the Software upon execution of the applicable Order.
Hosted. SmartBear will provide You with credentials to assign login credentials (username and password) to each User.
8. License Restrictions.
Your use of the Software is limited to the number of units and such other usage restrictions as are set forth on an Order and as set forth herein. SmartBear and its suppliers reserve any and all rights, implied or otherwise, which are not expressly granted to you hereunder, and retain all rights, title and interest in and to the Software. You shall not (i) modify, adapt, distribute, resell, rent, lease or loan the Software or create or prepare derivative works based upon the Software or any part thereof; (ii) use the Software in a service bureau, or application service provider environment, or in any commercial time share arrangement; (iii) decompile, disassemble or otherwise reverse engineer the Software; (iv) use the Software in contravention to any applicable laws or government regulations; (v) access the Services in order to build a competitive product or service; (vi) copy any features, functions or graphics of the Services; (vii) create duplicate accounts or make the Services available to anyone other than Users, (viii) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) to the extent the Services are used to monitor web sites or devices You do not own, then You shall not publish or otherwise disclose data acquired about such web sites or devices unless express consent is given to You by the web site or device owner, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (g) attempt to gain unauthorized access to the Services or their related systems or networks.
If (iii) is prohibited by applicable law, you shall provide SmartBear with a detailed prior written notice of any such intention to reverse engineer the Software and shall provide SmartBear with a right of first refusal to perform such work at rates equal to those proposed by a recognized third-party software services provider for such work. You shall take all reasonable precautions to prevent unauthorized or improper use or disclosure of the Software.
Export. You may not export the Software into any country prohibited by the United States Export Administration Act and the regulations thereunder. You acknowledge that the export of any Software is subject to export or import control and you agree that any Software or the direct or indirect product thereof will not be imported or exported (or re-exported from a country of installation) directly or indirectly, unless you obtain all necessary licenses from the U.S. Department of Commerce or other applicable agency or governmental body as required under applicable law. Without limiting the generality of the foregoing, you agree that the Software is prohibited for export or re-export to Cuba, North Korea, Iran, Libya, Syria and Sudan or to any person or entity on the U.S. Department of Commerce Denied Persons List or on the U.S. Department of Treasury’s lists of Specially Designated Nationals, Specially Designated Narcotics Traffickers or Specially Designated Terrorists, as such is changed from time to time.
Hosted Services - The Term begins on the date the Software is delivered and continues for twelve (12) months, unless a multi-year agreement is otherwise agreed upon in an Order. the Term shall continue for one (1) year from the date the Licensee can access Software (“Initial Term”). The Agreement shall automatically renew (each a “Renewal Term”) upon the end of the Initial Term and each Renewal Term for the same period of time as the prior Term, unless either party delivers written notice of non-renewal to the other party at least forty-five days prior to the end of the then-current Initial or Renewal Term.
Perpetual License Maintenance and Support - Except as otherwise specified in the applicable Order, or for Perpetual licenses, Maintenance and Support shall automatically renew for a period equal to the prior Term, unless one party gives the other notice of non-renewal at least forty-five days before the end of the then-current period.
Usage-Based – The term is based upon the designated period of time or units of consumption as set forth in an Order.
This Agreement or an individual license granted hereunder may be terminated (a) by mutual agreement of SmartBear and you, (b) by either party if the other party is adjudicated as bankrupt, or if a petition in bankruptcy is filed against the other party and such petition is not discharged within sixty (60) days of such filing, or (c) by either party if the other party materially breaches this Agreement and fails to cure such breach to such party’s reasonable satisfaction within thirty (30) days following receipt of written notice thereof; or (d) by us in the event that you breach this EULA. Upon any termination of this Agreement or a license granted hereunder, all applicable licenses are revoked and you shall immediately cease use of the applicable Software and certify in writing to SmartBear within thirty (30) days after termination that such Software and all copies thereof have been destroyed, purged or returned to SmartBear. Termination of this Agreement or a license granted hereunder shall not limit either party from pursuing any remedies available to it, including injunctive relief, or relieve you of your obligation to pay all fees that have accrued, have been paid, or have become payable hereunder.
11. Your Responsibilities.
You shall (i) be responsible for Users’ compliance with this Agreement, (ii) be responsible for the accuracy, quality and legality of your data and of the means by which You acquired Your data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Software, and notify Us promptly of any such unauthorized access or use, (iv) use the Services in accordance with the Documentation and applicable laws and government regulations, and (v) be responsible for obtaining and maintaining all telephone, computer hardware, Internet access services and other equipment or services needed to access and use the Services and all costs and fees associated therewith; (vi) username and passwords shall be maintained as confidential and shall not be distributed or disclosed; (vii) for Hosted, use the administrator account, to assign the authorized number of Users usernames and passwords (“Login Credentials”) to each user. You shall be responsible for the Login Credentials which shall be maintained confidentially and not be distributed or disclosed. You shall immediately terminate Login Credentials upon knowledge or belief it is or may be subject to a breach of this Agreement; and (viii) at your own cost and expense, provide all equipment, operating systems, web browser and internet access, etc. needed to access and use the Hosted service in accordance with the Documentation.
Content Responsibility. You are solely responsible for a) Your content and Data (meaning Content You post or otherwise submit to the Site or Service), b) the accuracy, quality, and legality of Your content and of Your submissions, c) the means by which You acquired Your content, including ensuring that Your content and Your submissions do not infringe upon or violate the rights of any person, d) claims relating to Your content and Your submissions, and e) responding to any person claiming Your content and/or Your submissions violate such persons rights, including notices pursuant to the Digital Millennium Copyright Act.
12. Backup of On-Prem Software.
Notwithstanding anything to the contrary herein, you may make a copy(ies) of the Software for the sole purpose of backing-up and archiving the Software. The copy of the Software is subject to all terms and conditions of this Agreement and must contain the same titles, trademarks, and copyrights as the original.
13. Virtualization Technology.
Unless otherwise restricted herein, the Software may be installed within a virtual (or otherwise emulated) hardware system so long as the use of the Software meets the terms of the license type and these virtual machines are run on hardware owned or leased by you. Virtualization technology may not be used to circumvent other licensing terms or restrictions.
14. Non-Human Devices.
Non-human devices that use the Software without interaction are counted as Users. Each device that runs the Software must be properly licensed to use the Software with one of the license types described herein. Examples of non-human devices include, but are not limited to, virtual PCs, build servers, unattended PCs for batch jobs, or similar.
15. Usage Verification.
At SmartBear’s written request and expense, and no more than once every twelve (12) months, you will permit SmartBear to verify your deployment and use of the Software for compliance with the terms and conditions of this Agreement. Any such review shall be scheduled at least ten (10) days in advance, conducted during normal business hours at your facilities, and shall not unreasonably interfere with your business activities. Within ten (10) days of any review or certification that finds your use of the Software to be greater than that licensed, you will either (i) provide SmartBear an Order for the applicable number of additional licenses and pay all applicable fees in accordance herewith or (ii) certify that such Software has been purged and de-installed from your systems.
16. Maintenance and Support.
Maintenance and support is set forth at https://support.smartbear.com/. SmartBear uses commercially reasonable efforts to provide work-around solutions or patches to reported software problems. You may be requested to assist in investigating any issues reported to SmartBear Support. SmartBear makes no representation or warranty that any product defects will be fixed or all Software will be updated. For perpetual licenses, SmartBear will maintain and support licensed software during the period you purchased Maintenance and Support.
17. Fees and Payments.
Fees. You shall pay all fees specified in an Order. Fees are based on Services purchased and not actual usage, payment obligations are non-cancelable and fees paid are non-refundable and you will not be entitled to a refund of amounts paid for the license to use the Software, or any other amounts for any reason and the number of units or time period purchased cannot be decreased during the relevant Subscription Term. Unless otherwise stated in an applicable Order payment is due thirty (30) days from the date of invoice. You shall provide a purchase order or notice that a purchase order is not required for purchase or payment prior to the shipment of the Software. If You provide credit card information to Us, You authorize Us to charge such credit card for all Services listed in the Order for the initial subscription term and any renewal subscription term(s) and for any excess units. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form.
Overdue Charges. If any charges are not received from You by the due date, then at Our discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 5.2 (Invoicing and Payment).
Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is 15 or more days overdue or if Your credit card is not valid, in the event you are paying by credit card, You shall be considered in default of this Agreement and We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our Services to You until such amounts are paid in full.
Taxes. You shall be responsible for taxes levied on any transaction under this Agreement, including all federal, state, and local taxes, levies and assessments, excluding any tax based on SmartBear’s income. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. We are solely responsible for taxes assessable against Us based on Our income, property and employees.
18. Confidentiality and Data Privacy.
Confidential Information. During the term of this Agreement, each party will regard any information provided to it by the other party and designated in writing as proprietary or confidential to be confidential (“Confidential Information”). Confidential Information shall also include information which, to a reasonable person familiar with the disclosing party’s business and the industry in which it operates, is of a confidential or proprietary nature. A party will not disclose the other party’s Confidential Information to any third party without the prior written consent of the other party, nor make use of any of the other party’s Confidential Information except in its performance under this Agreement. Each party accepts responsibility for the actions of its agents or employees and shall protect the other party’s Confidential Information in the same manner as it protects its own valuable confidential information, but in no event shall less than reasonable care be used. The parties expressly agree that the Software and the terms and pricing of this Agreement are the Confidential Information of SmartBear. You will not remove or destroy any proprietary markings or restrictive legends placed upon or contained in the Software. A receiving party shall promptly notify the disclosing party upon becoming aware of a breach or threatened breach hereunder, and shall cooperate with any reasonable request of the disclosing party in enforcing its rights.
Exclusions. Information will not be deemed Confidential Information hereunder if such information: (i) is known prior to receipt from the disclosing party, without any obligation of confidentiality; (ii) becomes known to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise publicly available, except through a breach of this Agreement; or (iv) is independently developed by the receiving party. The receiving party may disclose Confidential Information pursuant to the requirements of applicable law, legal process or government regulation, provided that it gives the disclosing party reasonable prior written notice to permit the disclosing party to contest such disclosure, and such disclosure is otherwise limited to the required disclosure.
Except as expressly provided in this Agreement, SmartBear retains all right, title and interest, including all copyright and intellectual property rights, in and to, the Software, as an independent work and as an underlying work serving as a basis for any improvements, modifications, derivative works, and applications you may develop, and all copies thereof. All rights not specifically granted in this Agreement, including Federal and international copyrights, are reserved by SmartBear and its suppliers.
SmartBear and other trademarks contained in the Software are trademarks or registered trademarks of SmartBear Software Inc. in the United States or other countries. You may not remove or alter any trademark, trade names, product names, logo, copyright or other proprietary notices, legends, symbols or labels in the Software.
Subject to the limited rights granted by You hereunder, We acquire no right, title or interest from You or Your licensors hereunder in or to Your data, including any intellectual property rights therein.
Except as expressly set forth herein, we alone, and its licensors, where applicable, will retain all intellectual property rights relating to the Software or any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Software, which are hereby assigned by You.
Federal Government End Use Provisions. We provide the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Us to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
You acknowledge that certain third party software incorporated in the Software requires that SmartBear provide copyright notices and/or additional terms and conditions to you, which copyright notices and additional terms and conditions may be accessed by you at http://support.smartbear.com/support/thirdparty.aspx and are made a part of, and are incorporated by reference into this EULA.
The provision of source code, if included with the Software, does not constitute transfer of any legal rights to such code, and resale or distribution of all or any portion of all source code and intellectual property is strictly prohibited hereunder. All Software and other files remain SmartBear’s exclusive property. If source code or modifiable files are provided, regardless of any modifications that you make, you may not redistribute them unless SmartBear has expressly designated these as re-distributable.
20. Limited Warranty.
SmartBear warrants that (a) it has the right to grant you the license to use the Software as set out in this Agreement; (b) the Software and the medium on which it was originally provided to you is free from any virus at the time of delivery; (c) for a period of thirty (30) days following the initial delivery of the Software to you (the “Warranty Period”), the Software will perform in conformity with the Documentation; and (d) any Services will be provided with reasonable skill and care conforming to generally accepted software industry standards and in accordance with any specifications set forth in the Order Form in all material respects (If the Services are not performed as warranted in this Section 20(d) then, upon your written request, SmartBear shall promptly re-perform, or cause to be re-performed, such Services, at no additional charge to you, provided that this warranty shall only survive for ninety (90) days following the completion of the Services). We provide no warranty or remedy for a Trial Version, Freeware or Free Version of the Software.
EXCEPT AS SET FORTH IN THE FOREGOING LIMITED WARRANTY, SMARTBEAR AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE OR QUIET ENJOYMENT. SMARTBEAR DOES NOT WARRANT THAT THE SOFTWARE IS ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. NO RIGHTS OR REMEDIES REFERRED TO IN ARTICLE 2A OF THE UCC WILL BE CONFERRED ON YOU UNLESS EXPRESSLY GRANTED HEREIN. THE SOFTWARE IS NOT DESIGNED, INTENDED OR LICENSED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING WITHOUT LIMITATION, THE DESIGN, CONSTRUCTION, MAINTENANCE OR OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS. SMARTBEAR SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH PURPOSES.
No oral or written information or advice given by SmartBear, its Resellers, dealers, distributors, agents, representatives or employees shall create any warranty or in any way increase any warranty provided herein.
If applicable law requires any warranties other than the foregoing, all such warranties are limited in duration to thirty (30) days from the date of delivery. Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you. The warranty provided herein gives you specific legal rights and you may also have other legal rights that vary from jurisdiction to jurisdiction. The limitations or exclusions of warranties, remedies or liability contained in this EULA shall apply to you only to the extent such limitations or exclusions are permitted under the laws of the jurisdiction where you are located.
Your exclusive remedy for SmartBear’s breach of 20(a) above, is that SmartBear will, at its expense, defend and hold you harmless from any suit or claim brought against you by a third party and will indemnify you against any third party damage claims that the Software as delivered by SmartBear infringes any third party’s intellectual property rights enforceable under United States law or international copyright treaty, provided you: (a) promptly notify SmartBear after learning of the suit or claim; (b) give SmartBear the authority to defend or settle the suit or claim (provided that SmartBear does not agree to any settlement that requires you to pay money or make any admissions); and (c) give SmartBear all available non-privileged information and assistance reasonably requested by SmartBear concerning the suit or claim.
If the Software is held or is reasonably believed by SmartBear to be held to infringe any third party rights, SmartBear may at its expense, modify or replace the applicable Software to be non-infringing with similar functionality, or obtain permission for you to continue using the Software as permitted under the Agreement, or if neither option is commercially feasible then to refund that portion of the fees paid in respect of the applicable product which portion is equal to such fees depreciated in a straight line over three (3) years from the date of delivery.
Your exclusive remedy for SmartBear’s breach of 20(c) and 20(d), is that SmartBear will, at its option and at no cost to you, (a) provide remedial services necessary to enable the Software or Support Services to conform to the warranty, or (b) replace any defective Software or media, or (c) refund amounts paid in respect of the defective Software or Support Services. SmartBear’s warranty obligations will only extend (i) to material errors that can be demonstrated to exist in an unmodified version of the Software except where the modifications were carried out by SmartBear or with its written approval and (ii) in respect of alleged breaches for which SmartBear has received written notice within the Warranty Period, if applicable. You will provide SmartBear with a reasonable opportunity to remedy any breach and reasonable assistance in remedying any defects.
23. Limitation of Liability.
NEITHER SMARTBEAR NOR ITS SUPPLIERS SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION OR THE LIKE), ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SOFTWARE AND BASED ON ANY THEORY OF LIABILITY INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF SMARTBEAR OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SMARTBEAR’S TOTAL LIABILITY TO YOU FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER WILL BE LIMITED TO THE AMOUNT PAID BY YOU OR RESELLER, IF ORDERED THROUGH A RESELLER, FOR THE SOFTWARE THAT CAUSED SUCH DAMAGE. THE FOREGOING LIMITATIONS DO NOT APPLY TO SMARTBEAR’S OBLIGATIONS UNDER SECTIONS 18 and 21.
24. Government Matters
This Section applies to all acquisitions of the Software by or for the federal government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the federal government. The Software was developed at private expense and is Commercial Computer Software, as defined in Section 12.212 of the Federal Acquisition Regulation (48 CFR 12.212 (October 1995)) and Sections 227.7202-1 and 227.7202-3 of the Defense Federal Acquisition Regulation Supplement (48 CFR 227.7202-1, 227.7202-3 (June 1995)). Accordingly, any use, duplication or disclosure by the Government or any of its authorized users is subject to restrictions as set forth in this standard license agreement for the Software. If for any reason, Sections 12.212, 227.7202-1 or 227.7202-3 are deemed not applicable, then the Government’s rights to use, duplicate or disclose the Software are limited to "Restricted Rights" as defined in 48 CFR Section 52.227-19(c)(1) and (2) (June 1987), or DFARS 252.227-7014(a)(14) (June 1995), as applicable. If this Agreement fails to meet the government’s needs or is inconsistent in any respect with Federal law, the government agrees to return the Software, unused, to SmartBear. Manufacturer is SmartBear Software Inc., 450 Artisan Way, Somerville, MA 02145.
Notwithstanding anything else, Customer may not provide to SmartBear or any other person (whether through the Service or any other means), or export or re-export, or allow the export or re-export of the Service, any data or information, or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing Customer acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Use of the Service is representation and warranty that the user is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations.
The headings to the clauses in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
Governing Law and Venue. If the Software was acquired in the United States or Canada, this Agreement shall be governed by the internal laws of the Commonwealth of Massachusetts, U.S.A., without giving effect to principles of conflict of laws. You hereby consent to the exclusive jurisdiction and venue of the state courts sitting in the Commonwealth of Massachusetts or the federal courts in the Commonwealth of Massachusetts to resolve any disputes arising under this EULA. In each case this EULA shall be construed and enforced without regard to the United Nations Convention on the International Sale of Goods.
If this Software was acquired outside the United States or Canada, this Agreement shall be governed by and construed in accordance with the laws of Ireland, without giving effect to principles of conflict of laws. You hereby consent to the exclusive jurisdiction and venue of the Irish courts to resolve any disputes or issues arising directly or indirectly under this Agreement. Nothing in this Agreement shall operate to prevent SmartBear from seeking interim, protective or provisional relief in the courts of another State or to enforce an Irish order or collect or enforce a debt in the courts of another State.
Notice. Except as otherwise specified in this EULA, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) five (5) business days after being sent by certified mail return receipt requested, or (iii) the first business day after sending by a generally recognized national or international guaranteed overnight delivery service. Billing-related notices to You shall be addressed to the relevant billing contact designated by You. All other notices to You shall be addressed to the relevant system administrator designated by You. You shall send all notices, demands, requests or other communications which may be or are required to be given hereunder to SmartBear at the address set forth above. SmartBear shall send all notices, demands, requests or other communications which may be or are required to be given hereunder to You at in the address set forth in the applicable Order Form, as You may update such information from time to time.
If you acquired Software in the United States or Canada, You shall address all such notices, permissions and approvals to the Legal Department, 450 Artisan Way, Somerville, MA 02145.
If you acquired Software outside the United States or Canada, You shall address all such notices, permissions and approvals to the Legal Department, 3rd floor Dockgate, Unit 19, Merchants Road, Galway, Ireland.
Publicity. You agree to be identified as a customer of SmartBear and agree that SmartBear may refer to you by name, trade name and trademark, if applicable, and may briefly describe your business in SmartBear’s marketing materials and web site. You hereby grant SmartBear a license to use your name and any of your trade names and trademarks solely in connection with the rights granted to SmartBear pursuant to this marketing section. You grant us the right to add your name and company logo to our customer list and website.
Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Orders, without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
Severability. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law that provision will be enforced to the maximum extent permissible and the remaining provisions of this Agreement will remain in full force and effect.
Waiver. The failure or delay of SmartBear to exercise any of its rights under this EULA or upon any breach of this EULA shall not be deemed a waiver of those rights or of the breach. A waiver by either party of any term or condition of this EULA or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof.
Force Majeure. Except for failure to make payments when due, neither party shall be liable to the other by reason of any failure in performance of this Agreement by either party if the failure arises out of any cause beyond the reasonable control of that party, including, but not limited to, the unavailability or faulty performance of communication networks or energy sources, any act of God, any act or omission of governmental or other competent authority, fires, strikes, industrial dispute, riots, war, inability to obtain materials, embargo, refusal of license, theft, destruction, denial of service attacks, unauthorized access to computer systems or records, programs, equipment, data, or services.
Anti-Bribery. You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of SmartBear’s employees or agents in connection with this EULA. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify SmartBear’s Legal Department.
Independent Contractors. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third-party beneficiaries to this EULA.
Entire Agreement. This Agreement contains the complete agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements or understandings, whether oral or written. You agree that any varying or additional terms contained in any purchase order or other written notification or document issued by you in relation to the Software licensed hereunder shall be of no effect. No Reseller or SmartBear dealer or agent is authorized to make any amendment to this EULA.
Survival. All provisions of this Agreement which by their nature are intended to survive the termination of this Agreement (including, without limitation, the provisions of Sections Payment, Confidentiality, Ownership, Limited Warranty, Limitation of Liability and General shall survive such termination. Survival. The following sections shall survive the expiration or termination of this Agreement: Definitions, Fees and Payments, Usage Verification, Intellectual Property, Confidentiality, Indemnification, Disclaimers, Limitations of Liability, Termination and General.