The following document is the standard license of use for BriskPPM Suite and all related software for online distribution or on-premise.
INTELIT SMART GROUP INC – ISG
BRISKPPM END USER LICENSE AGREEMENT
PLEASE READ CAREFULLY: THE USE OF THE SOFTWARE IS SUBJECT TO THE TERMS AND CONDITIONS THAT FOLLOW IN THIS END USER LICENSE AGREEMENT (“AGREEMENT”), UNLESS THE SOFTWARE IS SUBJECT TO A SEPARATE LICENSE AGREEMENT BETWEEN YOU AND ISG OR IT’S AFFILIATES LICENSING YOU THIS SOFTWARE (“BRISKPPM“) OR ITS SUPPLIERS. BY DOWNLOADING, INSTALLING, COPYING, ACCESSING, OR USING THE SOFTWARE, OR BY CHOOSING THE ”I ACCEPT” OPTION LOCATED ON OR ADJACENT TO THE SCREEN WHERE THIS AGREEMENT MAY BE DISPLAYED, YOU AGREE TO THE TERMS OF THIS AGREEMENT, ANY APPLICABLE WARRANTY STATEMENT AND THE TERMS AND CONDITIONS CONTAINED IN THE “ANCILLARY SOFTWARE” (AS DEFINED BELOW). IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON OR A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY, OR LEGAL ENTITY TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD, INSTALL, COPY, ACCESS, OR USE THE SOFTWARE, AND PROMPTLY RETURN THE SOFTWARE WITH PROOF OF PURCHASE TO THE PARTY FROM WHOM YOU ACQUIRED IT AND OBTAIN A REFUND OF THE AMOUNT YOU PAID, IF ANY. IF YOU HAVE DOWNLOADED THE SOFTWARE, CONTACT THE PARTY FROM WHOM YOU ACQUIRED IT.
THIS AGREEMENT IS A GLOBAL AGREEMENT AND IS NOT SPECIFIC TO ANY PARTICULAR COUNTRY, STATE OR TERRITORY. IF YOU ACQUIRED THE SOFTWARE AS A CONSUMER WITHIN THE MEANING OF RELEVANT CONSUMER LEGISLATION IN YOUR COUNTRY, STATE OR TERRITORY, THEN DESPITE ANYTHING TO THE CONTRARY IN THIS AGREEMENT, NOTHING IN THIS AGREEMENT AFFECTS ANY NON-EXCLUDABLE STATUTORY RIGHTS OR REMEDIES THAT YOU MAY HAVE UNDER SUCH CONSUMER LEGISLATION AND THIS AGREEMENT IS SUBJECT TO THOSE RIGHTS AND REMEDIES. REFER TO SECTION 8 FOR FURTHER INFORMATION ON YOUR CONSUMER RIGHTS
1. GENERAL TERMS:
- You and Your refer either to an individual person or to a single legal entity. You may also be referred to as Licensee.
- ISG Branded means Software products bearing a trademark or service mark of ISG or any ISG Affiliate, and embedded ISG-selected third party Software that is not offered under a third party license agreement.
- Software means machine-readable instructions and data (and copies thereof) including middleware and related updates and upgrades You may be separately authorized to receive, licensed materials, user documentation, user manuals, and operating procedures. “Ancillary Software” means all or any portion of Software provided under public, open source, or third party license terms.
- Specification means technical information about Software products published in ISG product manuals, user documentation, and technical data sheets in effect on the date ISG delivers Software products to You.
- Transaction Document(s) means an accepted customer order (excluding pre-printed terms) and in relation to that order, ISG quotations, license to use certificates, additional license authorizations, or invoices.
2. LICENSE TERMS AND RESTRICTIONS:
- Subject to the terms and conditions of this Agreement and the payment of any applicable license fees, ISG grants You a non-exclusive, non-transferable license to Use (as defined below) in object code form one copy of the Software on one device at a time strictly for Your internal business purposes, unless otherwise indicated above or in applicable Transaction Document(s). “Use” means to install, store, load, execute and display the Software in accordance with the Specifications. Your Use of the Software is subject to these license terms and to the other restrictions specified by ISG in any other tangible or electronic documentation delivered or otherwise made available to You with or at the time of purchase of the Software, including license terms, warranty statements, Specifications, and “readme“ or other informational files included in the Software itself. Such restrictions are hereby incorporated into this Agreement by reference. Some Software may require license keys or contain other technical protection measures. You acknowledge that ISG may monitor your compliance with Use restrictions remotely or otherwise. If ISG makes a license management program available which records and reports license usage information, You agree to appropriately install, configure and execute such license management program beginning no later than one hundred and eighty (180) days from the date it is made available to You and continuing for the period that the Software is Used.
- This Agreement confers no title or ownership and is not a sale of any rights in the Software. Third-party suppliers are intended beneficiaries under this Agreement and independently may protect their rights in the Software in the event of any infringement. All rights not expressly granted to You are reserved solely to ISG or its suppliers. Nothing herein should be construed as granting You, by implication, estoppel or otherwise, a license relating to Software other than as expressly stated above in this section 2.
- Unless otherwise permitted by ISG , You (a) may only make copies or adaptations of the Software for archival purposes or when copying or adaptation is an essential step in the authorized Use of the Software on a backup device, provided that copies and adaptations are used in no other manner and provided further that the Use on the backup device is discontinued when the original or replacement device becomes operable, and (b) may not copy the Software onto or otherwise Use or make it available on, to, or through any public or external distributed network.
- To Use Software identified as an update or upgrade, You must first be licensed for the original Software identified by ISG as eligible for the update or upgrade. If the update or upgrade is intended to substantially replace the original Software, after updating or upgrading, You may no longer Use the original Software that formed the basis for Your update or upgrade eligibility unless otherwise provided by ISG in writing. Nothing in this Agreement grants You any right to purchase or receive Software updates, upgrades, or support, and ISG is under no obligation to make such support available to you. Updates, upgrades, enhancements, or other Support are only available under separate ISG support agreements. You may contact ISG to learn more about any support offerings ISG may make available. ISG reserves the right to require additional licenses and fees for Software upgrades or other enhancements, or for Use of the Software on upgraded devices.
- You must reproduce all copyright notices that appear in or on the Software (including documentation) on all permitted copies or adaptations. Copies of documentation are limited to internal use.
- Notwithstanding anything to the contrary herein, if the Transaction Document(s) identifies that the Software may be utilized on another Designated System(s) (as defined below), Your license to Use the Software may be transferred to another Designated System(s). A “Designated System” means a client computer system owned, controlled, or operated by or solely on behalf of You and may be further identified by ISG by the combination of a unique number and a specific system type, however, Designated System will not include a server system unless explicitly written in an ISG provided Transaction Document only if you had a prior license for server devices for the Software or its legacy software. Such license will terminate in the event of a change in either the system number or system type, an unauthorized relocation, or if the Designated System ceases to be within Your possession or control.
- Operating system Software may only be Used when operating the associated hardware in configurations as approved, sold, or subsequently upgraded by ISG or an ISG authorized reseller.
- Software is not specifically designed, manufactured, or intended for use as parts, components, or assemblies for the planning, construction, maintenance, or operation of a nuclear facility. You are solely liable if Software is Used for these applications and will indemnify and hold ISG harmless from all loss, damage, expense, or liability in connection with such Use.
- You will not modify, reverse engineer, disassemble, decrypt, decompile, or make derivative works of the Software. Where You have other rights mandated under statute, You will provide ISG with reasonably detailed information regarding any intended modifications, reverse engineering, disassembly, decryption, or decompilation and the purposes therefore.
- Extending the Use of Software to any person or entity other than You as a function of providing services, (i.e. making the Software available through a commercial timesharing or service bureau) must be authorized in writing by ISG prior to such Use and may require additional licenses and fees. You may not distribute, resell, or sublicense the Software.
- Notwithstanding anything in this Agreement to the contrary, all or any portion of the Software which constitutes Ancillary Software is licensed to You subject to the terms and conditions of the Software license agreement accompanying such Ancillary Software, whether in the form of a separate agreement, shrink wrap license or electronic license terms accepted at time of download or use. Use of the Ancillary
Software by You shall be governed entirely by the terms and conditions of such license and, with respect to ISG, by the limitations and disclaimers of sections 3 and 4 hereof. ISG has identified any Ancillary Software by either noting the Ancillary Software provider’s ownership within each Ancillary Software program file and/or by providing information in the “ancillary.txt” or “readme” file that is provided as part of the installation of the Software. The Ancillary Software licenses are also set forth in the “ancillary.txt” or “readme” file. By accepting the terms and conditions of this Agreement, You are also accepting the terms and conditions of each Ancillary Software license in the “ancillary.txt” or “readme” file. If the Software includes Ancillary Software licensed under the GNU General Public License and/or under the GNU Lesser General Pubic License (“GPL Software”), a complete machine-readable copy of the GPL Software Source Code (“GPL Source Code”) is either: (i) included with the Software that is delivered to You; or (ii) upon your written request, ISG will provide to You, for a fee covering the cost of distribution, a complete machine-readable copy of the GPL Source Code, by mail, or (iii) if You obtained the Software by downloading it from a ISG website and neither of the preceding options are available, you may download the GPL Source Code from the same website. Information about how to make a written request for GPL Source Code may be found in the ancillary.txt file.
- When Licensee receives an update, fix, or patch to a Software, Licensee accepts any additional or different terms that are applicable to such update, fix, or patch that are specified in accompanying additional license authorization. If no additional or different terms are provided, then the update, fix, or patch is subject solely to this Agreement. If the Software is replaced by an update, Licensee agrees to promptly discontinue use of the replaced Software.
3. DISCLAIMER OF WARRANTIES:
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ISG AND ITS SUPPLIERS PROVIDE THE SOFTWARE “AS IS” AND WITH ALL FAULTS, AND HEREBY DISCLAIM ALL INDEMNITIES, WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE AND NON-INFRINGEMENT, ANY IMPLIED WARRANTIES, DUTIES OR CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, AND OF LACK OF VIRUSES. ISG DOES NOT WARRANT THAT THE OPERATION OF SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS. SOME STATES/JURISDICTIONS DO NOT ALLOW EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON THE DURATION OF IMPLIED WARRANTIES, SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU IN ITS ENTIRETY.
THE SOFTWARE MAY CONTAIN THIRD PARTY AND OPEN SOURCE SOFTWARE. LICENSEE IS REQUIRED TO REVIEW AND COMPLY WITH THE APPROPRIATE LICENSE TERMS OF SUCH THIRD PARTY AND OPEN SOURCE SOFTWARE. ANY SUCH THIRD PARTY OR OPEN SOURCE SOFTWARE IS PROVIDED ON “AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN NO EVENT SHALL THE LICENSOR BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION IN CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH SUCH THIRD PARTY OR OPEN SOURCE SOFTWARE.
4. LIMITATION OF LIABILITY AND REMEDIES:
The limitations and exclusions in this Section 4 (Limitation of Liability and Remedies) apply to the full extent they are not prohibited by applicable law.
- Items for Which ISG May Be Liable
If You believe You have a claim to recover damages from ISG, regardless of the basis of your claim (including fundamental breach, negligence, misrepresentation, or other contract or tort claim), ISG’s entire liability for all claims in the aggregate arising from, or related to, the Software or this Agreement will not exceed the fees You paid for the Software in the 12 months preceding the claim (if the Software is subject to fixed term fees, up to twelve months of such fees). For any Software for which no fees were paid by You, ISG’s maximum liability to You will be $20.
- Items for Which ISG Is Not Liable
UNDER NO CIRCUMSTANCES IS ISG OR ITS SUPPLIERS LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY: LOSS OF USE, LOST OR INACCURATE DATA, DAMAGE TO DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS; SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR INDIRECT DAMAGES; ANY CONSEQUENTIAL DAMAGES, LOST PROFITS, BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS; IN EACH CASE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NO SUPPLIERS OF ANY THIRD-PARTY COMPONENTS INCLUDED IN THE SOFTWARE WILL BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER BY VIRTUE OF YOUR LICENSE OF THE SOFTWARE.
- Agreement to Limitations
You agree that the limitations specified in this Section 4 will survive and apply even if any limited remedy specified in this Agreement is found have failed of its essential purpose.
This Agreement is effective unless terminated or rejected. If ISG licenses the Software for a fixed term, then this Agreement is effective for the fixed term, and Licensee’s license is terminated at the end of the fixed term, unless Licensee and ISG agree to renew it. Notwithstanding the foregoing, this Agreement will also terminate upon conditions set forth elsewhere in this Agreement or if You fail to comply with any term or condition hereof. Immediately upon termination You will uninstall and delete the Software and all copies of the Software. You may retain one copy of the Software subsequent to termination solely for archival purposes only. At ISG’s request, You will certify in writing to ISG that You have complied with these requirements. Sections 3, 4, 5, 6 and 7 of this Agreement will survive termination of this Agreement.
6. DISPUTE RESOLUTION:
- This Agreement is governed by the laws of the State of Florida, USA, without giving effect to their principles of conflicts of laws. Each party irrevocably agrees that any disputes arising under or related to this Agreement or the Software shall be arbitrated in the State of Florida in accordance with the rules of JAMS (the “Rules”). The arbitration shall be conducted before sole arbitrator appointed in accordance with the Rules (the “Arbitrator”). The parties hereby agree to service of process and to personal and subject matter jurisdiction of JAMS as provided in this Section 6a. Notwithstanding the above, ISG may bring a claim for equitable relief in any court with proper jurisdiction. You and ISG agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
- Upon rendering an award or a decision, the Arbitrator shall set forth in writing findings of fact, conclusions of law and a reasoned opinion explaining the basis of such award or decision, and shall make a determination of which Party shall be considered the prevailing Party, which determination shall be consistent with such reasoned opinion.
- The Arbitrator shall be empowered to issue injunctive or other equitable relief.
- Judgment on the award or any other final or interim decision rendered by the Arbitrator may be entered, registered or filed for enforcement purposes in any court having jurisdiction thereof.
- No party will bring a claim against the other under or related to this Agreement or the Software as a class or join a class in bringing such a claim. Each party acknowledges that it is waiving such class action rights by this provision.
- To assist Licensee in isolating the cause of a problem with the Software, ISG may request that Licensee 1) allow ISG to remotely access Licensee’s system or 2) send Licensee information or system data to ISG. However, ISG is not obligated to provide such assistance unless ISG and Licensee enter a separate written agreement under which ISG agrees to provide to Licensee that type of support. In any event, ISG uses information about errors and problems to improve its products and services and assist with its provision of related support offerings. For these purposes, ISG may use ISG entities and subcontractors (including in one or more countries other than the one in which Licensee is located), and Licensee authorizes ISG to do so.
Licensee remains responsible for 1) any data and the content of any database Licensee makes available to ISG, 2) the selection and implementation of procedures and controls regarding access, security, encryption, use, and transmission of data (including any personally-identifiable data), and 3) backup and recovery of any database and any stored data. Licensee will not send or provide ISG access to any personally-identifiable information, whether in data or any other form, and will be responsible for reasonable costs and other amounts that ISG may incur relating to any such information mistakenly provided to ISG or the loss or disclosure of such information by ISG, including those arising out of any third party claims.
- You may not assign, sublicense, delegate or otherwise transfer all or any part of this Agreement without prior written consent from ISG, payment to ISG of any applicable fees, and compliance with ISG’s Software license transfer policies and any applicable third party license terms. Any such attempted Assignment will be null and void. Where an authorized Assignment occurs in accordance with this section, Your rights under this Agreement will terminate, and You will immediately deliver the Software and all copies to the Assignee. The Assignee must agree in writing to the terms of this Agreement, and the transferee thereafter will be considered “You / Licensee” for purposes of this Agreement. You may transfer firmware only upon transfer of the associated hardware.
- If the Software is licensed for use in the performance of a U.S. Government prime contract or subcontract, You agree that, consistent with FAR 12.211 and 12.212, commercial computer Software, computer Software documentation and technical data for commercial items are licensed under ISG’s standard commercial license.
- To the extent You export, re-export, or import Software, technology, or technical data licensed or provided hereunder, You assume sole responsibility for complying with applicable laws and regulations and for obtaining required export and import authorizations. ISG may suspend performance if You are in violation of any applicable laws or regulations.
- You agree that ISG may audit Your compliance with this Agreement. Any such audit would be at ISG’s expense, require reasonable notice, and would be performed during normal business hours. If an audit reveals underpayments or any other breach of the Agreement then You will immediately pay ISG such underpayments together with the costs reasonably incurred by ISG in connection with the audit and seeking compliance with this section.
8. CONSUMER RIGHTS:
Non-excludable statutory rights
Consumers in some countries, states or territories may have the benefit of certain statutory rights and remedies under consumer legislation in respect of which ISG’s liability cannot lawfully be excluded or limited (”Non-excludable Rights”). If You acquired the Software as a consumer within the meaning of relevant consumer legislation in Your country, state or territory, the provisions of this Agreement (including the disclaimers of warranties, limitations and exclusions of liability) must be read subject to applicable law and apply only to the maximum extent permitted by that applicable law.
In the event such Non-excludable Rights can be limited:
- by duration, then such rights are limited in duration to the Warranty Period or to the maximum permitted limitation period, whichever is lesser;
- by remedies, then in connection with the provision of the Software, to any one or more of the following (at ISG’s discretion):
- the replacement of the Software or the supply of equivalent Software;
- the repair of the Software;
- refund of the license fee;
- the payment of the costs of replacing the Software or of acquiring equivalent Software; or
- the payment of the costs of having the Software repaired.
- By remedies, then in connection with provision of support or warranty services for the Software, to any one or more of the following (at ISG’s discretion):
- the supplying of the services again;
- Refund of the support or warranty fee; or
- the payment of the costs of having the services supplied again
Copyright ISG. The information contained herein is subject to change without notice. The only warranties for ISG products and services are set forth in the express warranty statements accompanying such products and services or in your mutually executed license and/or consulting services agreement(s) with ISG. Nothing herein should be construed as constituting an additional warranty. ISG shall not be liable for technical or editorial errors or omissions contained herein.