IMPORTANT: PLEASE READ THIS SOFTWARE AND END USER LICENSE AGREEMENT CAREFULLY. IT IS VERY IMPORTANT THAT YOU CHECK THAT YOU ARE PURCHASING LIVEWIRE SOFTWARE OR EQUIPMENT FROM AN APPROVED SOURCE AND THAT YOU, OR THE ENTITY YOU REPRESENT (COLLECTIVELY, THE “CUSTOMER”) HAVE BEEN REGISTERED AS THE END USER FOR THE PURPOSES OF THIS LIVEWIRE SOFTWARE AND END USER LICENSE AGREEMENT. IF YOU ARE NOT REGISTERED AS THE END USER, YOU HAVE NO LICENSE TO USE THE SOFTWARE AND THE LIMITED WARRANTY IN THIS SOFTWARE AND END USER LICENSE AGREEMENT DOES NOT APPLY. ASSUMING YOU HAVE PURCHASED FROM AN APPROVED SOURCE, DOWNLOADING, INSTALLING OR USING LIVEWIRE OR LIVEWIRE-SUPPLIED SOFTWARE CONSTITUTES ACCEPTANCE OF THIS AGREEMENT.
LIVEWIRE INNOVATION, INC. (“LIVEWIRE”) IS WILLING TO LICENSE THIS SOFTWARE TO YOU ONLY UPON THE CONDITION THAT YOU RECEIVED THE SOFTWARE FROM AN APPROVED SOURCE AND THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS SOFTWARE AND END USER LICENSE AGREEMENT PLUS ANY ADDITIONAL LIMITATIONS ON THE LICENSE SET FORTH IN A SUPPLEMENTAL LICENSE AGREEMENT ACCOMPANYING THE PRODUCT OR AVAILABLE AT THE TIME OF YOUR ORDER (COLLECTIVELY, THE “AGREEMENT”). TO THE EXTENT OF ANY CONFLICT BETWEEN THE TERMS OF THIS END USER LICENSE AGREEMENT AND ANY SUPPLEMENTAL LICENSE AGREEMENT, THE SUPPLEMENTAL LICENSE AGREEMENT SHALL APPLY. BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE, YOU ARE REPRESENTING THAT YOU RECEIVED THE SOFTWARE FROM AN APPROVED SOURCE AND ARE BINDING YOURSELF TO THE AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THE AGREEMENT, THEN LIVEWIRE IS UNWILLING TO LICENSE THE SOFTWARE TO YOU AND (A) YOU MAY NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE, AND (B) YOU MAY RETURN THE SOFTWARE (INCLUDING ANY UNOPENED PACKAGE AND ANY WRITTEN MATERIALS) FOR A FULL REFUND, OR, IF THE SOFTWARE AND WRITTEN MATERIALS ARE SUPPLIED AS PART OF ANOTHER PRODUCT, YOU MAY RETURN THE ENTIRE PRODUCT FOR A FULL REFUND. YOUR RIGHT TO RETURN AND REFUND EXPIRES THIRTY DAYS AFTER RECEIPT FROM AN APPROVED SOURCE, AND APPLIES ONLY IF YOU ARE THE ORIGINAL AND REGISTERED END USER. FOR THE PURPOSES OF THIS SOFTWARE AND END USER LICENSE AGREEMENT, AN “APPROVED SOURCE” MEANS (A) LIVEWIRE; OR (B) A DISTRIBUTOR AUTHORIZED BY LIVEWIRE TO DISTRIBUTE/SELL LIVEWIRE EQUIPMENT, SOFTWARE AND SERVICES WITHIN YOUR TERRITORY TO END USERS; OR (C) A RESELLER AUTHORIZED BY ANY SUCH DISTRIBUTOR IN ACCORDANCE WITH THE TERMS OF THE DISTRIBUTOR’S AGREEMENT WITH LIVEWIRE TO DISTRIBUTE/SELL THE LIVEWIRE EQUIPMENT, SOFTWARE AND SERVICES WITHIN YOUR TERRITORY TO END USERS.
THE FOLLOWING TERMS OF THE AGREEMENT GOVERN CUSTOMER’S USE OF THE SOFTWARE (DEFINED BELOW), EXCEPT TO THE EXTENT: (A) THERE IS A SEPARATE SIGNED CONTRACT BETWEEN CUSTOMER AND LIVEWIRE GOVERNING CUSTOMER’S USE OF THE SOFTWARE, OR (B) THE SOFTWARE INCLUDES A SEPARATE “CLICK-ACCEPT” LICENSE AGREEMENT OR THIRD PARTY LICENSE AGREEMENT AS PART OF THE INSTALLATION OR DOWNLOAD PROCESS GOVERNING CUSTOMER’S USE OF THE SOFTWARE. TO THE EXTENT OF A CONFLICT BETWEEN THE PROVISIONS OF THE FOREGOING DOCUMENTS, THE ORDER OF PRECEDENCE SHALL BE (1) THE SIGNED CONTRACT, (2) THE CLICK-ACCEPT AGREEMENT OR THIRD PARTY LICENSE AGREEMENT, AND (3) THE AGREEMENT. FOR PURPOSES OF THE AGREEMENT, “SOFTWARE” SHALL MEAN COMPUTER PROGRAMS, INCLUDING COMPUTER PROGRAMS EMBEDDED IN LIVEWIRE PRODUCTS, AS PROVIDED TO CUSTOMER BY AN APPROVED SOURCE, AND ANY UPGRADES, UPDATES, BUG FIXES OR MODIFIED VERSIONS THERETO (COLLECTIVELY, “UPGRADES”), ANY OF THE SAME WHICH HAS BEEN RELICENSED UNDER THE LIVEWIRE SOFTWARE TRANSFER AND RE-LICENSING POLICY (AS MAY BE AMENDED BY LIVEWIRE FROM TIME TO TIME) OR BACKUP COPIES OF ANY OF THE FOREGOING.
This Software and End User License Agreement applies to any quote, order, order acknowledgment, and invoice, and any license or delivery of Software by LiveWire, in addition to LiveWire’s General Terms, which are incorporated by reference herein and are either attached hereto, or available at www.LiveWire.com/terms or on request.
1. SCOPE AND DEFINITIONS. The definitions in LiveWire’s General Terms shall apply in addition to the following definition: “Authorized Users” means officers, employees and independent contractors of Customer, who are bound by enforceable written obligations to (i) treat the Software, Documentation and Confidential Information of LiveWire as confidential (as set forth in LiveWire’s General Terms); and (ii) use such Software, Documentation and Confidential Information only on behalf of Customer and only in accordance with this Software and End User License Agreement.
2. NO SALE. Software and Documentation (and any copies thereof), are licensed only, not sold by LiveWire. LiveWire reserves all rights, except as expressly granted in this Software and End User License Agreement.
3.1 License Grant. Subject to the terms and conditions of this Agreement, LiveWire grants Customer a personal, non-sublicensable, non-exclusive, non- transferable, limited license to have Authorized Users use copies of the Software in accordance with the applicable Documentation within the scope of the License Models described in Section 3.2 (License Models), solely for Customer’s internal business purposes. LiveWire’s license grant is conditioned upon Customer’s continuous compliance with all license limitations and restrictions described in this Software and End User License Agreement and if Customer violates any of these limitations or restrictions or any other terms of this Software and End User License Agreement, the license grant will automatically and immediately expire without notice from LiveWire. Customer acknowledges that the license descriptions in this Section 3.1 and in Section 3.2 (License Models) define the scope of rights that LiveWire grants to Customer and that any usage of the Software outside the scope of that license grant and the scope of any statutory rights constitutes an infringement of LiveWire’s and/or its licensors’ Intellectual Property and/or Proprietary Rights as well as a material breach of this Software and End User License Agreement.
3.2 License Models. Any license grant under this Software and End User License Agreement is subject to the limitations defined in this Section 3.2. Unless LiveWire expressly specifies or agrees otherwise in a duly signed writing, all Software shall be governed by a Standard License (see Section 3.2.1 (Standard License)).
3.2.1 Standard License. Unless LiveWire expressly specifies in writing that one or more additional or different License Models apply per Subsections 3.2.2 (Licensed Hardware) through 3.2.4 (Time Limit) below, Customer may install and keep one copy of the Software on either (i) one stand-alone computer or (ii) one Product, neither of which may be connected to a network in a manner that allows no more than one user to upload, access, manipulate or otherwise create or use a copy of the Software. Customer may not use the Software other than on one computer or Product.
3.2.2 Licensed Hardware. If LiveWire in writing identifies a certain computer or Product (“Licensed Hardware”) on which the Software may be used, then Customer may install, upload, copy, keep, view, and use the applicable Software only on such Licensed Hardware. Customer may migrate the Software to a different computer, type of computer, or Product only if (i) Customer gives thirty days’ prior written notice to LiveWire; (ii) Customer does not upload or use the Software on the Licensed Hardware after installing it on the destination computer or Product; and (iii) Customer removes all copies from the Licensed Hardware within two weeks after installing it on the destination computer or Product, which will thereafter become the Licensed Hardware for purposes of these Software License Terms. Upon installation of the Software on such destination computer or Product, Customer shall lose all license rights to the Software for use on the old Licensed Hardware.
3.2.3 Server-Client Architecture. If LiveWire identifies Software in a duly signed writing as a server software product (“Server Software”) then Customer may install, upload, copy, keep, view, and use one copy of the server portion of such Software on a single server. Customer may install and use copies of the client portion of such Software on computers in accordance with one of the following options:
(i) Floating Licenses. If LiveWire specifically describes a license for Server Software in writing as a “floating license,” Customer may install, upload, copy, keep, view, and use the client portion of such Software on a reasonable number of individual workstations on the condition that no more than the maximum number of concurrent Authorized Users specified by LiveWire may use the client or have access to the server portion of the Software at any one time. If LiveWire does not specify in writing a different maximum number of Authorized-Users for a floating license, the maximum number of concurrent Authorized-Users shall be one.
(ii) Node-Locked Licenses. Unless LiveWire specifically describes in writing a license for Server Software as a “floating license,” Customer may install, upload, copy, keep, view, and use the client portion of such Software only on one workstation per authorized node. All activities related to the operation of the Software must be performed on the same workstation. The maximum number of authorized nodes shall be one, unless LiveWire specifies another number in writing.
3.2.4 Time Limit. Subject to Customer’s ongoing compliance with the terms and conditions of this Software and End User License Agreement, including, without limitation, the payment of all fees or charges related to this Software and End User License Agreement, the term of the license(s) contained herein shall either a) continue for the LiveWire-specified period for any limited duration license, at which point such license shall automatically expire at the end of such period, or b) if no period is specified by LiveWire, continue until terminated in accordance with Section 6.1 below. Notwithstanding the foregoing, LiveWire has the right to revoke Customer’s license(s) at any time due to Customer’s non-payment.
3.3 Copies. Except as expressly specified herein or agreed otherwise in writing, Customer may duplicate each item of Software that LiveWire delivers only to the extent necessary for backup purposes. Customer may not create any other copies of the Software, unless LiveWire expressly permits additional copies in writing.
3.4 License Key Management. LiveWire may, at its sole discretion, use or combine license management programs with any Software, which automatically monitor and enforce license restrictions and limitations, provided that such precautions shall not relieve Customer of its primary responsibility to ensure compliance with this Software and End User License Agreement. Customer expressly agrees to be fully responsible for compliance by all Authorized Users with this Software and End User License Agreement, to take all actions reasonably requested by LiveWire to protect the rights of LiveWire in the Software and Documentation, and to indemnify and hold LiveWire harmless against any loss resulting from a breach of this Software and End User License Agreement by any Authorized User or any individual or entity that Customer caused, enabled or allowed to use the Software in any manner not authorized under this Software and End User License Agreement.
3.5 License Restrictions., Customer agrees not to (i) translate or create any derivative works based on the Software or Documentation or modify or alter the Software or Documentation in any manner whatsoever; (ii) sell, sublicense, lease, rent, loan, assign, convey, distribute, or otherwise transfer the Software or Documentation to any third parties; (iii) copy or use the Software or Documentation for any purpose or in any manner not expressly permitted in this Software and End User License Agreement; (iv) use the Software outside the permitted scope of the License Models; (v) use the Software or Documentation, in any format, for or in the interest of any third party other than by Authorized Users; (vi) disclose the results of any benchmark test of the Software to any third party, without LiveWire’s prior written approval; or (vii) permit or encourage any third party to do any of the foregoing. Customer acknowledges that the structure, organization and codes of the Software remain confidential trade secrets of LiveWire and its licensors. Customer shall cooperate with LiveWire, and shall render all reasonable assistance requested by LiveWire, to assist LiveWire in preventing and identifying any use of, or access to, the Software and Documentation, by Authorized Users or otherwise, in violation of this Software and End User License Agreement. For greater clarity, no source code shall be licensed under these Software License Terms (excluding possibly under the Specific Licenses).
3.6 Specific Licenses. To the extent that Customer acquires from LiveWire any Software that is accompanied by or made available subject to other end-user license terms and/or other terms (in shrink-wrap, click-through or other format), either from LiveWire or originating from third party licensors (“Specific Licenses”) (i) Customer shall agree to such Specific Licenses vis-à-vis the licensor specified in such Specific Licenses; (ii) to the extent such Specific Licenses conflict with Section 3.1 (License Grant) through 3.5 (License Restrictions), the Specific Licenses shall take precedence with respect to the Software (or portion thereof) subject to such Specific Licenses; and (iii) Customer’s right to use the Software (or portion thereof) subject to such Specific Licenses will be defined and restricted in such Specific Licenses. Software originated by LiveWire is not subject to third party licenses. Terms of this Software License that are different from applicable third party licenses are offered by LiveWire alone.
4. AUDIT. Upon reasonable notice, LiveWire or its agent(s) may inspect Customer’s facilities (including computers) and records to verify Customer’s compliance with this Software and End User License Agreement and payment for all Software licensed (including applicable support fees) to Customer. Customer will keep records regarding its use in sufficient detail to permit this verification. Customer shall fully cooperate with such audit, and grant all required assistance and dial-in and/or on-site access to all networks, records, materials and equipment. If, after an audit, it is determined that Customer has underpaid any amounts due, LiveWire will invoice Customer for and Customer will pay the amount of the underpayment plus interest from the date payment was due. If the underpayment is more than five percent of the amount properly due, Customer will also pay LiveWire inspection expenses. LiveWire’s rights and remedies under this Section 4 shall be in addition to and not in lieu of any other rights or remedies that are available to LiveWire at law or in equity.
5. LIMITED WARRANTY AND DISCLAIMERS.
5.1 Limited Warranty. LiveWire warrants that on the Delivery Date, the Software substantially conforms to LiveWire’s specifications in the applicable Documentation, subject to the limitations and exclusions in Section 5.1.1 (Excluded Causes) through Section 5.1.3 (No Warranties for Updates).
5.1.1 Excluded Causes. Customer has no warranty rights with respect to defects or non-conformities caused by or related to (i) use of the Software with hardware or software that was not expressly specified in writing by LiveWire as suited for use with the Software; (ii) Customer’s failure to follow LiveWire’s operating instructions; (iii) failure to implement all updates, upgrades, and other new releases of Software made available to Customer (provided, for the avoidance of doubt, that LiveWire is not obligated to make available any such new releases outside the scope of a separate maintenance agreement); (iv) changes to the Customer environment, in which Software was provided; or (v) acts or omissions of persons other than LiveWire or its authorized representatives.
5.1.2 Modifications. Customer has no warranty rights with regard to any Software (i) that has been modified by someone other than LiveWire, unless such modifications were directed or approved by LiveWire in writing and made in conformance with all specifications and instructions provided by LiveWire in such writing; (ii) that LiveWire modified in accordance with Customer’s request, specifications, or instructions, unless LiveWire agreed in a duly signed writing that the modified Software would be covered by the limited warranty specified in Section 5.1 (Limited Warranty); or (iii) third party products.
5.1.3 No Warranties for Updates. LiveWire does not extend any warranties under this Software and End User License Agreement for any updates that LiveWire may make available under LiveWire’s Software Maintenance Terms. Any warranties for any updates are exclusively and finally provided for under LiveWire’s Software Maintenance Services Terms, if applicable.
5.2 Exclusive Remedies. If the Software materially fails to conform to the limited warranty set forth in Section 5.1 (Limited Warranty), LiveWire shall, at its sole discretion (i) repair or replace the non-conforming Software to remedy the non-conformity identified by Customer in accordance with Section 5.3 (Warranty Period); or (ii) issue a credit to Customer equal to the amounts paid for the Software in exchange for return of the non-conforming Software, in which case all licenses granted to Customer under these Software License Terms for such Software shall be automatically revoked. This Software warranty does not obligate LiveWire to provide any on-site repair or on-site replacement of Software. At LiveWire’s discretion, repair of the Software may be made in later releases of Software and may require the purchase of additional software or hardware at Customer’s expense. THE REMEDIES EXPRESSLY PROVIDED IN THIS SECTION 5.2 (EXCLUSIVE REMEDIES) WILL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES AND SHALL BE IN LIEU OF ANY OTHER RIGHTS OR REMEDIES CUSTOMER MAY HAVE AGAINST LIVEWIRE WITH RESPECT TO ANY NON-CONFORMANCE OF SOFTWARE.
5.3 Warranty Period. Unless LiveWire expressly specifies or agrees on a different warranty period in a duly signed writing, the warranty period for Software shall be ninety days and begin on the Delivery Date. Customer shall have no warranty claims under Section 5.1 (Limited Warranty), unless LiveWire receives from Customer, during the warranty period and within thirty days of the date on which Customer noticed or should have known about the warranty breach, (i) a written notice describing the warranty breach in reasonable detail (“Warranty Claim”); (ii) remote and physical access to the affected Software as well as information in sufficient detail to enable LiveWire to reproduce and analyze the failure.
5.4 Disclaimer. EXCEPT AS SPECIFIED IN SECTION 5.1 (LIMITED WARRANTY), LIVEWIRE MAKES NO EXPRESS REPRESENTATIONS OR WARRANTIES WITH REGARD TO ANY SOFTWARE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LIVEWIRE DISCLAIMS ALL IMPLIED WARRANTIES, CONDITIONS, AND REPRESENTATIONS, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, REGARDLESS OF THE LEGAL THEORY ON WHICH SUCH IMPLIED WARRANTY, CONDITION OR REPRESENTATION MAY BE BASED, INCLUDING, WITHOUT LIMITATION, CONTRACT, COURSE OF DEALING, USAGE, OR TRADE PRACTICE AND, WITHOUT LIMITING THE FOREGOING, MAKES NO WARRANTY THAT THE SOFTWARE WILL BE ERROR-FREE, THAT ITS PERFORMANCE OR OPERATION WILL BE UNINTERRUPTED, OR THAT THE SOFTWARE WILL PERFORM ON ANY HARDWARE OR WITH ANY SOFTWARE, EXCEPT AS EXPRESSLY CERTIFIED AS INTEROPERABLE BY LIVEWIRE IN THE APPLICABLE DOCUMENTATION. THE SOFTWARE IS NOT FAULT-TOLERANT AND IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE OR RESALE AS SOFTWARE FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE IN WHICH THE FAILURE OF THE SOFTWARE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
5.5 U.S. Government End Users. The Software is made available to non-Department of Defense (DOD) agencies of the United States Government with RESTRICTED RIGHTS and its supporting documentation is provided with LIMITED RIGHTS. Use, duplication, or disclosure by the United States Government is subject to the restrictions as set forth in subparagraph “C” of the Commercial Computer Software – Restricted Rights clause at FAR 52.227-19 or any successor clause. In the event the sale is to a DOD agency, the Government’s rights in software, supporting documentation, and technical data are governed by the restrictions in the Technical Data Commercial Items clause at DFARS 252.227-7015 and DFARS 227.7202 or any successor clauses. The Software is a trade secret of LiveWire for all purposes of the Freedom of Information Act or its successor legislation or any other disclosure statute, regulation or provision and in all respects is and shall remain proprietary to LiveWire or its licensors. The U.S. Government must refrain from changing or removing any insignia or lettering from the Software or from producing copies of the Software and manuals (except one copy of the Software for backup purposes). Use of the Software shall be limited to the facility for which it is acquired. All other U.S. Government personnel using the Software are hereby on notice that use of the Software is subject to restrictions that are the same as, or similar to, those specified above.
6.1 Termination for Cause. Without limiting Section 3.1 (License Grant) with respect to the automatic termination of license rights for specific Software, LiveWire may terminate — at LiveWire’s sole discretion either all or specific — licenses to Software granted hereunder, by giving written notice, effective immediately, if within ten days of LiveWire’s delivery of a reasonably detailed written request to cure, Customer has not cured all breaches of payment obligations, license limitations and restrictions, including, but not limited to, the License Models, or any other substantial obligations under these Software License Terms or the Agreement. Upon such termination, Customer shall immediately pay all outstanding fees, cease use of all Software and related Documentation, return or delete, at LiveWire’s request and sole discretion, all copies of the Software and Documentation in Customer’s possession, and certify compliance with all foregoing obligations to LiveWire in writing. These termination rights are in addition to any other rights and remedies that LiveWire may have at law or in equity.
6.2 Survival. LiveWire’s General Terms and this Software and End User License Agreement, except Section 3.1 (License Grant), shall survive termination of any or all licenses granted hereunder.