End User License Agreement – EPM Pulse
SOFTWARE LICENSE FOR FLUENTPRO EPM PULSE FROM FLUENTPRO SOFTWARE CORPORATION
THIS EULA IS VALID FOR PERPETUAL LICENSES ONLY SOLD BEFORE MARCH 1ST 2016; FOR ALL SUBSCRIPTION PRODUCTS PLEASE REFERENCE TO FLUENTPRO MSA.
By downloading, installing or using this Software, you agree to these terms and conditions. If you do not agree to the terms and conditions set forth below, do not download, install, access or use the Software. If you have already obtained this Software and do not agree to these terms, you should immediately return the software unused and uninstalled for a full refund.
The licensor of the Software (FluentPro Software Corporation or FluentPro Software, Inc) shall be referred to herein as “FluentPro Software”
1. License Grant.
Subject to this EULA, “FluentPro Software” grants to Licensee the non-exclusive and non-transferable license to install, use and operate the Software for Licensee’s own internal business use at Licensee’s place of business or at a secure location managed by a secure and reliable hosting vendor. Licensee may provide access to the Software for up to the maximum number of users as defined by the FluentPro Software Proposal or the FluentPro Software License for the Software license that the Licensee has purchased. As used in this Agreement, a “Server” is single machine where a single instance of FluentPro EPM Pulse products resides; “PWA” is a single Microsoft Project Server 2010 / 2007 / 2013 / Project Online Project Web Application where a single instance of one of the FluentPro EPM Pulse resides; “Farm” is a single Microsoft Project Server 2010/2007/2013 / Project Online or SharePoint 2010/2007/2013 farm that may contain multiple Servers and multiple PWAs, where a multiple instance of the FluentPro EPM Pulse resides within that Farm and FluentPro EPM Pulse is used only by employees and contractors of Licensee. Licensee is responsible for the acts or omissions of all persons that Licensee permits to use the Software.
2. Limited Warranty.
“FluentPro Software” warrants that the Software will perform substantially in accordance with the accompanying materials for a period of 15 calendar days from the date of receipt (the “Limited Warranty”). Any supplements, updates or upgrades to the Software, including without limitation, any provided to Licensee pursuant to Support Services (as defined below) after the expiration of the 15 calendar days period are not covered by any warranty or condition, express, implied or statutory. The Limited Warranty is void if failure of the Software has resulted from accident, abuse, misapplication, abnormal use or a virus. THE LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES BY “FLUENTPRO SOFTWARE”. EXCEPT AS EXPRESSLY STATED HEREIN, “FLUENTPRO SOFTWARE” DISCLAIMS ALL THE EXPRESS AND IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABLE QUALITY OR MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
3. Exclusive Remedy.
“FluentPro Software” entire liability and Licensee’s exclusive remedy for any breach of the foregoing warranty shall be, at “FluentPro Software” option from time to time exercised subject to applicable law, (a) return of any licensee fees paid by Licensee for the Software, and/or (b) repair or replacement of the Software that does not meet the Limited Warranty. Any replacement Software will be warranted for the remainder of the original warranty period or ten (10) days, whichever is longer.
4. Limitations and Reservation of Rights.
Licensee may not reverse engineer, decompile, or disassemble the Software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. This EULA does not grant Licensee any rights in connection with any trademarks or service marks of Licensor. Licensee may not rent, lease, or lend, distribute and re-distribute the Software to third parties. Restrictions. You shall not (i) permit any third party to access the Services except as permitted herein or in a Purchase Order, (ii) create derivate works based on the Services, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes during the subscription term and for the exclusive use of Your Users, (iv) reverse engineer, decompile, or disassemble the Services, or (v) access the Services and / or Software Products in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services
5. Intellectual Property Rights.
All title and intellectual property rights in and to the Software are reserved. The Software is protected by applicable copyright or other intellectual property laws and treaties. The Software is licensed, not sold.
6. Damage Exclusion.
“FluentPro Software” shall not be liable for any incidental, special, punitive or consequential damages, including, without limitation, lost revenue, lost profits or lost or inaccurate data under any circumstances. Under no circumstance may “FluentPro Software” and its licensors, dealers, distributors or resellers be liable in the aggregate for more than the licensee fee paid for this Software.
7. Support, Maintenance and Software Assurance
a. Licensee receives standard support package and Software Assurance as part of the initial software purchase
covering the one year period following the date upon which Licensee receives the Software, including any software key required for use.
b. Licensee may, at its option purchase Software Assurance on an annual basis starting 2nd year; provided, that Licensee pays the Software Assurance (as defined below) for the applicable period. The terms set forth in Sections 9 to 12 shall apply to all Support Services.
c. Licensee may, at its option purchase Premium Support package on an annual basis starting first year. Licensee must have active Software Assurance.
8. Definitions Relevant to Support.
Capitalized terms used herein shall have the meanings set forth below:
a. “Error” is a Software function or operation that is materially inconsistent with the functionality stated in the product documentation.
b. “Major Release” means significant enhancement, new functionality or new Software and accompanying documentation designed to enhance and / or improve the Software.
c. “Version” means correction of errors, enhancement of the Software and accompanying documentation designed to correct errors or improve the Software.
d. “Support Contact” means the authorized individual(s) registered with “FluentPro Software” Support Team with whom “FluentPro Software” may communicate when providing Support Services. The Support Contact may be Licensee (if an individual) or an employee or a consultant of Licensee. The Support Contact shall be generally knowledgeable about the technical aspects of the use of the Software and the operating environment.
9. Software Error Correction Services Provided.
Support Services provided under this EULA are as follows:
a. Correction of Errors. “FluentPro Software” will use reasonable efforts to correct reproducible Errors in the Software when reported to “FluentPro Software” in accordance with reporting procedures that “FluentPro Software” may issue from time to time. “FluentPro Software” may modify the Software, may provide a “work-around” consisting of programming and operating instructions, may edit or alter the Software or may take other corrective steps. “FluentPro Software” may respond to reported Errors by e-mail, phone, mail or fax. An e-mail or mail response may include Software patches or replacement programs, at “FluentPro Software”’s discretion. Licensee may obtain services to respond to Errors by submitting written requests for assistance regarding Software Errors to “FluentPro Software” by fax, mail or e-mail.
b. Timing of Response. “FluentPro Software” will use reasonable efforts to respond within one (3) business days after “FluentPro Software” has received the request for assistance with any Error, and will seek to respond sooner to Errors that “FluentPro Software” deems critical or serious.
c. Electronic Access and Support. “FluentPro Software” may, but is not obliged to, use reasonable efforts to address Software Errors by accessing Licensee’s system via Internet link; provided, that Licensee provides access to their installation of the Software.
d. Subsequent version. “FluentPro Software” shall use reasonable efforts to remove reported Errors from next versions of Software.
e. Help Desk Support. Licensee’s Support Contact may call “FluentPro Software”’s Technical Support Team, which will be staffed by personnel qualified to render advice relating to the use of Software. The “FluentPro Software” support personnel will provide reasonable assistance and advice to Licensee in utilizing the Software.
f. Updated Versions. “FluentPro Software” may, from time to time, issue updated Versions of the Software generally to its licensees for the Software containing Error corrections, minor enhancements, and, in some instances, new functionality or major enhancements. As long as this EULA is in effect, and Licensee is not in material breach, and Licensee has paid all Support Fees hereunder, “FluentPro Software” will provide Licensee one copy of each such Updated Version, without additional charge. “FluentPro Software” will provide reasonable assistance to help Licensee install each Updated Version; provided, that such assistance, if provided at Licensee’s facility, shall be subject to such supplemental charges as “FluentPro Software” may set from time to time. Updated Versions are subject to the terms and conditions of this EULA. “FluentPro Software” is not otherwise obligated to provide maintenance or support at Licensee’s place of business.
g. Major Releases. “FluentPro Software” may, from time to time, issue Major Releases of the Software containing Error corrections, enhancements, new functionality and/or major enhancements. “FluentPro Software” will not provide Licensee copies of such Major Releases without additional charge. Major Releases can be purchased by Licensee for (50) per cent of standard product list price.
h. Changes in Support Services. “FluentPro Software” reserves the right to modify the Support Services by providing no less than 30 days written notice; provided, that “FluentPro Software” may not materially reduce its level of Support Services for the current annual period for which Licensee has prepaid. Licensee shall not be entitled to Support Services if it fails to pay the applicable Support Fee.
10. Limitations of Software Maintenance.
a. Software Versions. “FluentPro Software” shall not be responsible for correcting Errors in any version of the Software other than the most recent Release of the Software, except that “FluentPro Software” will use reasonable effort to continue to support any superseded Releases for a period of 6 months unless otherwise agreed to in writing by “FluentPro Software”.
b. Exclusions. The following are not subject to Support Services or any warranty by “FluentPro Software” under this EULA:
i. Software that has been altered or modified.
ii. All additional service or software provided by “FluentPro Software”, including, but not limited to, applications design, custom programming, data conversions, lost data recovery, or purchase recommendations.
iii. Errors created by Licensee act or omission or due to any hardware malfunction.
iv. Errors that do not materially impair or affect the operation of the Software.
v. Software used on a computer system other than that for which it is intended as stated in the product documentation.
11 Software Assurance and Premium Support fees.
a. Annual Software Assurance Fees. Licensee may purchase Software Assurance and in this case agrees to pay a fee for the services that “FluentPro Software” renders under this EULA (“Software Assurance Fee”). The Software Assurance Fee is payable in advance. The Software Assurance Fee is calculated based on the number of user licenses or Farm licenses or Server Licenses purchased to date. The Software Assurance Fee is subject to change upon 30 days prior written notice; provided, that the Software Assurance Fee in effective for the then current term of Licensee’s Software Assurance shall remain in effect and the revised Software Assurance Fee shall not take effect unless and until Licensee renews Software Assurance. “FluentPro Software” has no obligation to provide Software Assurance if Licensee fails or declines to pay the Software Assurance Fee when due.
b. Premium Support Fees. Licensee may purchase Premium Support package and in this case agrees to pay a fee for the services that “FluentPro Software” renders under this EULA (“Premium Support Fee”). The Premium Support Fee is payable in advance. The Premium Support requires active Software Assurance. The Premium Support Fee is calculated based on the number licenses or Farm licenses or Server Licenses or Individual Licenses purchased to date. The Premium Support Fee is subject to change upon 30 days prior written notice; provided, that the Premium Support Fee in effective for the then current term of Licensee’s Premium Support Services shall remain in effect and the revised Premium Support Fee shall not take effect unless and until Licensee renews Premium Support Services. “FluentPro Software” has no obligation to provide Premium Support Services if Licensee fails or declines to pay the Premium Support Fee when due.
c. Reinstatement of Support. If Licensee fails to pay the Premium Support Fees or Software Assurance Free, and “FluentPro Software”’s obligations hereunder under this EULA are discharged, “FluentPro Software” may, in its discretion, reinstate Premium Support Services or Software Assurance upon Licensee’s payment of the then applicable reinstatement fee.
12. Licensee Responsibilities.
Licensee agrees to use the web based Help-Desk Support Services under this EULA only if the Software fails to work as set forth in the documentation or when the documentation is unclear. Licensee agrees to furnish descriptions of Errors in the form requested by FluentPro Software Inc Support Services staff. Licensee also agrees to assist “FluentPro Software”’s efforts to duplicate a reported Error. Licensee agrees to make back-up copies of all data and to use reasonable anti-virus protections measures.
13. Customer Modifications.
Any custom modifications of Software that “FluentPro Software” may supply are provided “AS IS” and are not included within Support Services; provided, that all damage and remedy limitations and exclusions under this EULA will apply.
14. Termination of EULA.
a. The Support Services portion of this EULA will remain in effect for the period of one (1) year from inception. Licensee may renew the Support Services under this EULA for additional one-year terms, by payment in advance, of the Software Assurance and/or Premium Support Fee for all licenses purchased to date. “FluentPro Software” may terminate the Software Assurance and/or Premium Support Fee Services portion of this EULA upon 12 months prior written notice.
b. Either party may terminate this EULA upon a material default by the other party not cured within 30 days of written notice. In such event, this EULA is terminated Licensee must discontinue all use of the Software and destroy all copies of the Software and its documentation.
15. Applicable Law.
This EULA is governed by the laws of state of Washington and the courts located state of Washington shall have exclusive jurisdiction and venue over any claim arising from this EULA, the Software, or the relationship of the parties. The parties hereby submit to the jurisdiction of the applicable courts, as specified above. Licensee agrees to comply with applicable US export control law.
16. Entire Agreement.
This EULA (including any addendum or amendment to this EULA which is included with the Software) is the entire agreement between Licensee and “FluentPro Software” relating to this subject matter and it supersedes all prior oral or written communications, agreements, proposals and representations, including without limitation, the terms of any Licensee order, conformation or other form document.