This is a legal agreement between you, the person or entity receiving software products and/or software support (“Licensee”), and Federal University of Piauí, having offices at Campus Petrônio Portela, Teresina, Piauí, Brazil (“Licensor”). This agreement is part of a package that includes one or more software products and certain electronic and/or written materials. This agreement covers your licensing of such software and/or purchase of support. You must agree to the terms in this End User License Agreement (“EULA”) in order to access the software and/or receive support.
BY CLICKING YOUR ACCEPTANCE OF THIS EULA, OR BY INSTALLING OR USING THE SOFTWARE (defined below) OR ANY OTHER COMPONENT OF THE PACKAGE, YOU ACKNOWLEDGE THAT YOU HAVE READ ALL OF THE TERMS AND CONDITIONS OF THIS EULA, UNDERSTAND THEM, AND AGREE TO BE LEGALLY BOUND BY THEM. If you do not agree to the terms of this EULA, you may not install or use the Software. In addition to the restrictions imposed under this EULA, Software installation instructions or release notes, and Support policies (defined below) shall apply to your use of the Software and receipt of Support. As used in this EULA: “Authorized Users” means, collectively, the personnel authorized by you to use the Software for your benefit. Unless otherwise expressly allowed by this EULA, Authorized Users may include only your employees and agents having a need to know, and Authorized Users may not be entities or persons in the business of licensing or otherwise providing products or services competitive with the Software. “Software” means the software product(s) accompanying this EULA and the content therein; including the associated data, user manuals, user documentation and application program interfaces (if any), and any patches, updates, upgrades, improvements, enhancements, fixes and revised versions of any of the foregoing that may be provided to you from time to time, and any combination of the foregoing. “Affiliate” means any entity Controlling, Controlled by, or under common Control with the referenced entity, where the term “Control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
1. GRANT OF SOFTWARE LICENSE. Subject to the terms and conditions of this EULA, Licensor grants to you a non-exclusive, non-transferable license (“License”) for an unlimited number of Authorized Users to use the Software and Support for your internal operations and internal data processing purposes. Use of the Software on a network is authorized. This EULA and the License granted hereunder shall be effective until terminated in accordance with Section 7 below. The Software may be provided under a “Trial License” for your internal evaluation purposes only. Depending on the mode of delivery of the Trial License, you may (i) access the Software though an online account mechanism, or (ii) you may install and operate the Software on computer hardware owned or controlled by you. Under a Trial License you may not network the Software for use at any other geographic location. A Trial License may not be used for any commercial purposes. Software provided under a Trial License is made available to you “AS IS”, AND LICENSOR MAKES NO REPRESENTATION OR WARRANTY REGARDING SUCH SOFTWARE.
2. RESTRICTIONS ON USE. You acknowledge that you are receiving LICENSED RIGHTS only. The Software may only be used internally, by your Authorized Users. If any Software is provided on separate media (e.g., a CD-ROM), you may make a single copy solely for your internal backup purposes. You shall not directly or indirectly: (i) sell, rent, lease, distribute, redistribute or transfer any of the Software or any rights in any of the Software, including without limitation through “charge back” or any other selling, reselling, distributing or redistributing within your organization of any usage capacity you have licensed, without the prior express written approval of Licensor, (ii) modify, translate, reverse engineer (except to the limited extent permitted by law), decompile, disassemble, attempt to discover the source code for, create derivative works based on, or sublicense any of the Software, (iii) use any Software for the benefit of any third parties (e.g., in an ASP, outsourcing or service bureau relationship), or in any way other than in its intended manner, without the prior express written approval of Licensor, (iv) remove any proprietary notice, labels, or marks on or in the Software, or (v) disable or circumvent any access control or related device, process or procedure established with respect to the Software. If the Software design permits modification, then you may only use such modifications or new software programs for your internal purposes and otherwise consistent with the License and Authorized Scope. You are responsible for all use of the Software and for compliance with this EULA; any breach by you or any user of the Software shall be deemed to have been a breach by you. Licensor reserves all rights not expressly granted; no right or license is granted hereunder, express or implied or by way of estoppel, to any intellectual property rights other than as expressly set forth herein; and this License does not by itself convey or imply the right to use the Software in combination with any other product(s). As between you and Licensor, Licensor retains all right, title, and interest in and to the Software, which rights include, but are not limited to, patent, copyright, moral, trademark, trade secret and all other intellectual property rights. You agree and acknowledge that you have been provided sufficient information such that you do not need to reverse engineer the Software in any way to permit other products or information to interoperate with the Software.
3. NO SEPARATION OF COMPONENTS. The Software is licensed as a single product. Some Licensor software products combine separately available components into a single product (e.g., a software suite product may be comprised of multiple component products). When licensed as a combination product, the component parts may not be separated for use independently of the combination product. You must first purchase a license to each component of the combination product before you may use it independently of the combination product.
4. TERM AND TERMINATION. Unless otherwise agreed, the term of this EULA shall continue until it expires or is terminated; however, if you are receiving a Trial License, the term shall expire thirty (30) days following the date you receive the Software. Termination or expiration of this EULA shall concurrently terminate all Licenses granted under this EULA. Licensor shall not refund any amounts paid by you hereunder in the event of expiration or termination of this EULA unless expressly provided in this EULA. Licensor may terminate this EULA (or any License) upon fifteen (15) days written notice if you breach this EULA and do not cure the breach within fifteen (15) days following receipt of written notice of breach. Immediately upon any termination or expiration of this EULA, you agree to: (a) un-install and cease use of the Software for which your rights have been terminated; (b) upon request, return to Licensor (or destroy) all copies of the Software and any other Confidential Information or proprietary materials in your possession for which your rights have been terminated; and (c) upon request, certify in writing your compliance with (a) and (b), above.
5. CONFIDENTIALITY. You agree to protect Licensor’s Confidential Information with the same degree of care used to protect your own confidential information (but in no event less than a reasonable standard of care), and not to use or disclose any portion of such Confidential Information to third parties, except as expressly authorized in this EULA. You acknowledge that the Software, including its content, structure, organization and design constitute proprietary and valuable trade secrets (and other intellectual property rights) of Licensor and/or its licensors. The term “Confidential Information” means, collectively, non-public information that Licensor (and its licensors) provide and reasonably consider to be of a confidential, proprietary or trade secret nature, including but not limited to (i) the Software, and (ii) confidential elements of the Software and Licensor’s (and its licensors’) technology and know-how, whether in tangible or intangible form, whether designated as confidential or not, and whether or not stored, compiled or memorialized physically, electronically, graphically, photographically, or in writing. Confidential Information does not include any information which you can demonstrate by credible evidence: (a) is, as of the time of its disclosure, or thereafter becomes part of the public domain through no fault of yours; (b) was rightfully known to you prior to the time of its disclosure, or to have been independently developed by you without use of Confidential Information; and/or (c) is subsequently learned from a third party not under a confidentiality obligation with respect to such Confidential Information. Confidential Information that is required to be disclosed by you pursuant to a duly authorized subpoena, court order, or government authority shall continue to be Confidential Information for all other purposes and you agree, prior to disclosing pursuant to a subpoena, court order, or government authority, to provide prompt written notice and assistance to Licensor prior to such disclosure, so that Licensor may seek a protective order or other appropriate remedy to protect against disclosure.
6. WARRANTY AND DISCLAIMER. Licensor warrants that (i) except with respect to Software provided under a Trial License (in respect of which no warranty is made, as described in Section 1), for a period of twenty (20) days from the date of acceptance of the Software as described in Section 1, the Software will, under normal use and as unmodified, substantially perform the functions described in its accompanying documentation; and (ii) Licensor will perform Support services during the License term in a professional and workmanlike manner. No warranty is provided for uses beyond the Authorized Scope. THE FOREGOING EXPRESS WARRANTIES REPLACE AND ARE IN LIEU OF ALL OTHER WARRANTIES AND REPRESENTATIONS BY LICENSOR, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED OR OTHER WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR NON-MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, CUSTOM, TRADE, QUIET ENJOYMENT, ACCURACY OF INFORMATIONAL CONTENT, OR SYSTEM INTEGRATION. NO WARRANTY IS MADE THAT ANY SOFTWARE WILL OPERATE IN AN ERROR FREE, UNINTERRUPTED OR COMPLETELY SECURE MANNER, IN COMBINATION WITH THIRD PARTY HARDWARE OR SOFTWARE PRODUCTS, OR THAT ALL DEFECTS CAN BE CORRECTED. YOU ACKNOWLEDGE THAT LICENSOR HAS NO CONTROL OVER THE SPECIFIC CONDITIONS UNDER WHICH YOU USE THE SOFTWARE. ACCORDINGLY, EXCEPT FOR THE FOREGOING EXPRESS WARRANTY, LICENSOR CANNOT AND DOES NOT WARRANT THE PERFORMANCE OF THE SOFTWARE OR ANY PARTICULAR RESULTS THAT MAY BE OBTAINED BY THE USE OF THE SOFTWARE. THE SOFTWARE AND SUPPORT DO NOT REPLACE YOUR OBLIGATION TO EXERCISE YOUR INDEPENDENT JUDGMENT IN USING THE SOFTWARE. The warranties made by Licensor may be voided by abuse or misuse of the Software and/or Support.
7. EXCLUSIVE REMEDY. Licensor’s sole obligation and liability, and your sole and exclusive remedy under the warranties set forth in Section 6, shall be for Licensor to use commercially reasonable efforts to have the problem remedied, to re-perform Support services or to deliver to you a replacement for the defective Software (in each case, as determined by Licensor and as applicable), provided that Licensor is notified in writing of all warranty problems during the applicable warranty period.
8. LICENSOR INDEMNIFICATION. Subject to the limitations set forth herein, Licensor agrees to defend you against any claims, actions, suits and proceedings brought against you by unaffiliated third parties arising from or related to a claim that the Software (other than any third party or open source components or elements) infringes upon such third party’s copyrights, and Licensor agrees to pay all damages that a court finally awards to such third party, and all associated settlement amounts agreed to by Licensor in writing; provided that, Licensor receives from you (i) prompt written notice of the claim; (ii) all necessary assistance, information and authority necessary for Licensor to defend the claim and perform Licensor’s obligations under this Section; and (iii) sole control of the defense of such claim and all associated settlement negotiations. If such a claim is made or appears likely to be made, you agree to permit Licensor to enable you to continue to use the affected Software, or to have the Software modified to make it non-infringing, or to have the Software replaced with a substantially functional equivalent. If Licensor determines that none of these options is reasonably available, then Licensor may terminate this EULA in whole or with respect to the affected Software product. THIS SECTION STATES LICENSOR’S AND ITS AFFILIATES’ ENTIRE OBLIGATION AND LIABILITY REGARDING INFRINGEMENT OF THIRD PARTY RIGHTS OF ANY KIND OR CLAIMS OF ANY SUCH INFRINGEMENT. Licensor will have no responsibility for (v) any use of any product after you have been notified to discontinue use because of a third party claim of infringement, (w) the alteration of the Software or the combination of the Software with third party materials, products or software, (x) use of the Software by any person or entity other than an Authorized User, (y) any misuse or unauthorized use of the Software, or (z) failure to use provided updated or modified Software to avoid a claim of infringement or misappropriation.
9. INDEMNIFICATION BY YOU. You agree to indemnify and defend Licensor, its licensors, and its affiliates, against any third party claims arising from or related to your use or misuse of the Software or any breach of the terms and conditions of this EULA, and you agree to pay all costs, losses, damages, and attorneys’ fees that a court finally awards, and all associated settlements.
10. LIMITATION OF LIABILITY. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR’S OR ITS AFFILIATES’ TOTAL, AGGREGATE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT, THE SOFTWARE AND/OR SUPPORT (INCLUDING FOR NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT, MISREPRESENTATION, AND OTHER CONTRACT OR TORT CLAIMS), EXCEED THE AMOUNT OF YOUR DIRECT DAMAGES ACTUALLY INCURRED, UP TO THE AMOUNT OF FEES PAID TO LICENSOR UNDER THIS AGREEMENT FOR THE SOFTWARE PRODUCT OR SUPPORT PRODUCT THAT IS THE SUBJECT OF THE CLAIM UNDERLYING THE DAMAGES; OR, IN THE CASE OF SOFTWARE PROVIDED UNDER A TRIAL OR DEMONSTRATION LICENSE, ONE HUNDRED DOLLARS ($100.00), WHICHEVER IS LESS.
11. EXCLUSION OF DAMAGES. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL LICENSOR, ITS AFFILIATES, OR ANY OF THEIR SUPPLIERS OR LICENSORS BE LIABLE HEREUNDER FOR ANY OF THE FOLLOWING: (I) THIRD PARTY CLAIMS, EXCEPT AS PROVIDED IN SECTION 8, (II) LOSS OR DAMAGE TO ANY SYSTEMS, RECORDS OR DATA, (III) DIRECT DAMAGES FOR BREACH OF WARRANTY (IN RESPECT OF WHICH ANY LIABILITY SHALL BE LIMITED TO RE-PERFORMANCE OR REFUND AS SPECIFIED IN SECTION 7), AND/OR (IV) INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR COVER DAMAGES (INCLUDING WITHOUT LIMITATION FOR LOST PROFITS, LOST SAVINGS AND DAMAGE TO ANY DATA OR SYSTEMS); EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A LIMITED REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE. YOU ARE SOLELY RESPONSIBLE AND LIABLE FOR VERIFYING THE ACCURACY AND ADEQUACY OF ANY OUTPUT FROM THE SOFTWARE, AND FOR ANY RELIANCE THEREON. THE FEES FOR THE SOFTWARE AND SUPPORT, THE REMEDIES SET FORTH IN THIS AGREEMENT, THE LIMITS ON LIABILITY SET FORTH IN SECTIONS 10 AND 11 AND THE OTHER PROVISIONS IN THIS AGREEMENT REFLECT THE ALLOCATION OF RISKS BETWEEN THE PARTIES. THIS SECTION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.
12. REGULATED USES. FOR RESEARCH USE ONLY (RUO): NOT INTENDED FOR ANY ANIMAL OR HUMAN THERAPEUTIC OR DIAGNOSTIC USE You acknowledge that the Software has not been cleared, approved, registered or otherwise qualified (collectively, "Approval") by Federal University of Piauí with any regulatory agency for use in diagnostic or therapeutic procedures, or for any other use requiring compliance with any federal or state law regulating diagnostic or therapeutic products, blood products, medical devices or any similar product (hereafter collectively referred to as "federal or state drug laws"). The Software may not be used for any purpose that would require any such Approval unless proper Approval is obtained. You agree that if you elect to use the Software for a purpose that would subject you or the Software to the jurisdiction of any federal or state drug laws, you will be solely responsible for obtaining any required Approvals and otherwise ensuring that your use of the Software complies with such laws.
13. EUROPEAN COMMUNITY END USERS. If this Software is used within a country of the European Community, nothing in this Agreement shall be construed as restricting any rights available under the European Community Software Directive, O.J. Eur. Comm. (No. L. 122) 42 (1991).
14. LEGAL COMPLIANCE; RESTRICTED RIGHTS. The Software is provided solely for internal research and solely for lawful purposes and use. You shall be solely responsible for, and agree to comply with, all applicable laws, statutes, ordinances, and other governmental authority, however designated. Without limiting the foregoing, this EULA is expressly made subject to any Brazilian government laws, regulations, orders or other restrictions regarding export from Brazil and re-export from other jurisdictions of equipment, computer hardware, software, technical data and information or derivatives of such equipment, hardware, software or technical data and information. You agree to comply with all applicable export and re-export control laws and regulations in regard to products (including computer hardware, software, deliverables, technical data, source code, or any other technology, equipment, and/or derivatives of such hardware, software, deliverables, technical data, source code, equipment, or any other technology) received from Licensor. You further certify that you will not, directly or indirectly, without obtaining prior authorization from the competent government authorities as required by those laws and regulations: (1) sell, export, re-export, transfer, divert, or disclose technical data or dispose of any product or technology received from Licensor to any prohibited person, entity, or destination; or (2) use the product or technology for any use prohibited by the laws or regulations of Brazil. You will reasonably cooperate with Licensor and will provide to Licensor promptly upon request any certificates or documents as are reasonably requested to obtain approvals, consents, licenses and/or permits required for any payment or any export or import of products or services under this EULA, at Licensor’s expense. Your breach of this provision shall constitute cause for immediate termination of this EULA. You agree to indemnify and hold harmless Licensor, its affiliates, and their respective officers, directors, employees and agents for your noncompliance with this Section.
15. GOVERNING LAW; SEVERABILITY. This EULA shall be governed in all respects by the laws of the State of Piauí, Brazil, without regard to its conflicts of law rules or principles. Any dispute arising out of or related to this EULA shall be resolved only in the state or federal courts having subject matter jurisdiction in Piauí. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Each party hereby consents to the exclusive jurisdiction and venue of such courts. If any provision of this EULA is held to be illegal or unenforceable for any reason, then such provision shall be deemed to be restated so as to be enforceable to the maximum extent permissible under law; the remainder of this EULA shall remain in full force and effect.
16. SOFTWARE MAINTENANCE AND SUPPORT. Licensor offers certain software maintenance and technical support service programs documented in Licensor’s then-current Support policies (“Support”). Subscription to Support shall be governed by this EULA and by the terms and conditions set forth in such policies. Licensor shall have no obligation to provide Support if (a) the Software is not used in accordance with the Documentation or Authorized Scope; (b) the Software was modified by you; (c) you have not implemented all upgrades that would otherwise correct the problem; or (d) the problem is caused by your misuse, negligence or other cause within your control. Licensor may change its Support policies and prices at any time. Licensor reserves the right to discontinue Support services for any Software where Licensor generally discontinues such services to all Licensees of such Software, in which case such discontinuation shall not automatically terminate this EULA and the License. If you terminate Support and then re-enroll, Licensor may charge you a reinstatement fee.
17. GENERAL. This EULA, including any Support policies, (all of which are incorporated herein), are collectively the parties’ complete agreement regarding its subject matter, superseding any prior oral or written communications, representations or agreements. In the event that any prior oral or written communication is in direct conflict with the terms of this EULA, this EULA shall control. You understand and agree that, to the extent Licensor permits you to use a non-Licensor purchase order or other form to order Software and/or Support, Licensor does so solely for your convenience. Any terms in any such forms that purport to vary or are in addition to or inconsistent with any terms in this EULA shall be deemed to be void and of no effect. Amendments or changes to this EULA must be in mutually executed writings to be effective. Sections 1, 4, 5, and 7 through 17, inclusive, shall survive the termination or expiration of this EULA. The parties are independent contractors for all purposes under this EULA. Neither party shall be liable for any delay or failure due to force majeure and other causes beyond its reasonable control; provided that the foregoing shall not apply to any of your payment obligations. Any notices under this EULA to Licensor must be personally delivered or sent by certified or registered mail, return receipt requested, or by nationally recognized overnight express courier, to the address specified herein or such other address as Licensor may specify in writing. Such notices will be effective upon receipt, which may be shown by confirmation of delivery. All such notices shall be sent to the attention of the Rector of Federal University of Piauí (unless otherwise specified by Licensor). You may not assign or otherwise transfer this EULA or any License without Licensor’s prior written consent. This EULA shall be binding upon and inure to the benefit of the parties’ successors and permitted assigns. You agree, at Licensor’s request and reasonable expense, to provide reasonable assistance and cooperation to Licensor and its designees, and to give testimony and execute documents and to take such further acts reasonably requested by the other to acquire, transfer, maintain, perfect, and enforce Licensor’s intellectual property rights as described in this EULA. To the extent you fail to do so, you appoint Licensor’s or its affiliates’ officers as your attorney in fact to execute documents on your (and your personnel's), successors’ and assigns’ behalf for this limited purpose.