FLEXERA SOFTWARE
END-USER LICENSE AGREEMENT
Software Monetization Optimization Products

IMPORTANT-READ CAREFULLY: This End-User License Agreement (“Agreement”) is a legal contract between you, either (a) an individual user or (b) a business organization (in either case the “Licensee”), and Flexera Software for use of the Software.  

As used herein, for users in Japan, “Flexera Software” means Flexera Software GK, a Godo Kaisha organized under the laws of Japan; for users in Europe, Middle East, Africa, or India, “Flexera Software” means Flexera Software Limited, a private company limited by shares and incorporated in England and Wales with company number 6524874; for users in Australia and New Zealand, “Flexera Software” means Flexera Software Pty Ltd., a private company with ABN 40 052 412 156 and for users outside of the regions listed above, “Flexera Software” means Flexera Software LLC, a Delaware limited liability company. 

By clicking on the “I ACCEPT” button or by copying, downloading, accessing or otherwise using the Software, Licensee agree to be bound by the terms of this Agreement and you represent that you are authorized to enter into this Agreement on behalf of Licensee’s corporate entity (if applicable).  If Licensee does not wish to be bound by the terms of this Agreement, click the “I DO NOT ACCEPT” button, and/or do not install, access or use the Software.   
 
DEFINITIONS

“Documentation” means the technical specification documentation generally made available by Flexera Software to its licensees with regard to the Software as well as all materials provided to Licensee via the Microsoft Azure Marketplace. 
“Licensee Site” means any location owned or leased solely by Licensee or that portion of any shared space, such as a shared data center, attributable solely to Licensee, or in the instance of an employee working remotely, that location from which such employee is working while using Licensee-provided equipment on which the Software may be installed.  
“Software” means the evaluation (s) licensed to Licensee, as identified on an order confirmation and with which this Agreement is provided.  
 
I.	EVALUATION SOFTWARE TERMS & CONDITIONS

The use of Software will be governed by the terms set forth in this Article I, in addition to the General Terms set forth in Article II. The use of the Software is limited to a specified period of time, as detailed in the email accompanying the download instructions, or if not specified in such email, thirty (30) days from Licensee’s acceptance of this Agreement (the “Evaluation Period”).   

 
1.	Grant of License. Subject to all of the terms and conditions of this Agreement, Flexera Software grants Licensee during the Evaluation Period, a limited, internal use, non-exclusive, non-transferable license to use the Software and the Documentation at a Licensee Site only and solely to evaluate the Software’s suitability for Licensee’s internal business requirements. Licensee may not share any pricing, findings, reports, or outcomes with any third party. Without limiting the foregoing, Licensee may not use the Software during the Evaluation Period to create publicly distributed computer software or for any other purpose.  This license may be terminated by Flexera Software at any time upon notice to Licensee and will automatically terminate, without notice, upon the first to occur of the following: (a) the completion of Licensee’s evaluation of the Software or (b) the expiration of the Evaluation Period.

2.	Limited Use Software.  Portions of the full-use version of the Software may be withheld or unusable.  Full use of the Software may be restricted by technological protections. 

3.	No Maintenance.  Flexera Software will have no Support and Maintenance obligation to Licensee for Software governed by this Article I.

4.	Disclaimer of Warranty.  THE SOFTWARE AND DOCUMENTATION IS PROVIDED ON AN "AS IS" BASIS.   NEITHER FLEXERA SOFTWARE NOR ITS SUPPLIERS MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. LICENSEE MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTER OF (I) THE STATUTORILY REQUIRED PERIOD OR (II) THIRTY (30) DAYS FROM LICENSEE’S ACCEPTANCE OF THIS AGREEMENT.

5.	Limitation of Liability.  IN NO EVENT WILL FLEXERA SOFTWARE BE LIABLE FOR ANY DAMAGES, INCLUDING LOST PROFITS OR DATA, OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES, ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE OR ANY DATA SUPPLIED THEREWITH, EVEN IF FLEXERA SOFTWARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY.  IN NO CASE WILL FLEXERA SOFTWARE’S LIABILITY FOR ANY DAMAGES HEREUNDER EXCEED FIFTY DOLLARS (US $50).

6.	Termination.  Licensee’s license may be terminated by Flexera Software at any time immediately upon notice to Licensee.  In the event of termination, Licensee must cease using the Software, destroy all copies of Software and Documentation (including copies in storage media), if applicable, and certify such destruction to Flexera Software.  This requirement applies to all copies in any form, partial or complete. Upon the effective date of any termination, Licensee relinquishes all rights granted under this Agreement.
 
II.	GENERAL TERMS

The terms set forth in this Article II shall apply to all Software licensed under this Agreement.  

1.	Ownership.  Notwithstanding anything to the contrary contained herein, except for the limited license rights expressly provided herein, Flexera Software and its suppliers will retain all rights, title and interest (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Software (including the Documentation) and all copies, modifications to, and derivative works based upon, the Software. Licensee acknowledges that it is obtaining only a limited license right to the Software  and Documentation and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights are being conveyed to Licensee under this Agreement or otherwise.

2.	License Restrictions. Licensee shall not (and shall not allow any third party to):

a.	decompile, disassemble, or otherwise reverse engineer the Software or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Software by any means whatsoever (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions, and then only with prior written notice to Flexera Software);

b.	distribute (except as expressly permitted herein), sell, sublicense, rent, lease or use the Software (or any portion thereof) for time sharing, service bureau, hosting, service provider or like purposes;

c.	remove any product identification, proprietary, copyright or other notices contained in the Software, including but not limited to any such notices contained in the physical and/or electronic media or Documentation, in the Setup Wizard dialog or “about” boxes, in any of the runtime resources and/or in any web-presence or web-enabled notices, code or other embodiments originally contained in or otherwise created by the Software, or in any archival or back-up copies, if applicable;

d.	modify any part of the Software, create a derivative work of any part of the Software, or incorporate the Software into or with other software, except to the extent outlined in the Documentation or expressly authorized in writing by Flexera Software; or

e.	publicly disseminate pricing, performance information, features, or analysis (including, without limitation, benchmarks) from any source relating to the Software.

3.	Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party shall assign this Agreement (or any part thereof) without the advance written consent of the other party, except that Flexera Software may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of Flexera Software’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section will be null and void.

4.	Controlling Law.  For users in Japan, this Agreement will be governed by the laws of Japan; for users in Europe, Middle East, Africa, or India, this Agreement will be governed by the laws of England and Wales and Licensee shall submit to the jurisdiction of the courts of England and Wales; for Licensees in New Zealand or Australia this Agreement will be governed by the laws of the State of Victoria, Australia; for users in the Asia Pacific region, excluding Japan, Australia, and New Zealand this Agreement will be governed by the laws of Special Administrative Region of Hong Kong without regard to conflicts of laws provisions thereof, and without regard to the Uniform Computer Information Transactions Act and the United Nations Convention on the International Sale of Goods; for users outside the regions listed above, this Agreement will be governed by the laws of California, USA, excluding conflicts of law. This Agreement is not subject to the United Nations Convention on Contracts for the Sale of Goods.

5.	Survival. Sections I.4 (Disclaimer), I.5 (Limitation of Liability), I.6 (Termination), and all of this Article II (General Terms), as well as any provision that by the very nature of which should survive, shall survive any termination or expiration of this Agreement.

6.	Confidential Information. Each party agrees that all business and/or technical information that is received by a party (“Receiving Party”) from the disclosing party (“Disclosing Party”) that a) is in written, recorded, graphical or other tangible form and is marked "Confidential" or “Trade Secret” or similar designation; b) is in oral form and identified by the Discloser as "Confidential" or “Trade Secret” or similar designation at the time of disclosure, with subsequent confirmation in writing within thirty (30) days of such disclosure; or c) the nature of which could reasonably be construed to be confidential shall be considered the confidential property of the Disclosing Party (“Confidential Information”). Any software, documentation or technical information provided by Flexera Software (or its agents), performance information relating to the Software, and the terms of this Agreement shall be deemed Confidential Information of Flexera Software without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information that: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (d) is independently developed by employees of the Receiving Party who had no access to such information; or (e) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.

7.	Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.

8.	Amendments; Waivers. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Licensee will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.

9.	Choice of Language. The original of this Agreement has been written in English. Licensee waives any rights it may have under the law of its country to have this Agreement written in the language of that country.

10.	Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.

11.	U.S. Government End-Users. The Software is commercial computer software.  If the user or licensee of the Software is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Software, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Software was developed fully at private expense. All other use is prohibited.  Licensee shall flow-down this provision to any of its authorized sublicensees.

12.	Export Compliance. Licensee acknowledges that the Software is subject to export restrictions by the United States government and import restrictions by certain foreign governments. Licensee shall not and shall not allow any third-party to remove or export from the United States or allow the export or re-export of any part of the Software or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) any end user who has been prohibited from participating in United States export transactions by any federal agency of the United States government; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. Licensee agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list. The Software is further restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology, or for terrorist activity, without the prior permission of the United States government.

13.	Third-Party Code.  The Software may contain or be provided with components subject to the terms and conditions of “open source” software licenses (“Open Source Software”).  Open Source Software may be identified in the Documentation, or Flexera Software shall provide a list of the Open Source Software for a particular version of the Software to Licensee upon Licensee’s written request.  To the extent required by the license that accompanies the Open Source Software, the terms of such license will apply in lieu of the terms of this Agreement with respect to such Open Source Software, including, without limitation, any provisions governing access to source code, modification or reverse engineering.

14.	Equal Opportunity. Flexera Software agrees that it does not and will not discriminate against any employee or applicant for employment because of race, color, religion, age, sex, handicap, national origin, or sexual orientation.

15.	Ambiguities.  Each party and its counsel have participated fully in the review and revision of this Agreement.  Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in interpreting this Agreement.

16.	Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.
SWM Azure Eval EULA - June 2015