DO NOT USE THE ENCLOSED SOFTWARE UNTIL YOU (“CLIENT”) READ THIS DOCUMENT CAREFULLY. THIS IS A LEGAL AGREEMENT BETWEEN YOU AND SDL PLC FOR AND ON BEHALF OF ITS AFFILIATES ("SDL"). BY TYPING IN YOUR SOFTWARE ENCRYPTION CODE OR OTHERWISE ACTIVATING, ACCEPTING, ACCESSING OR USING THE SOFTWARE AND DOCUMENTATION (COLLECTIVELY, THE "SOFTWARE") PROVIDED TO YOU BY SDL IN RESPONSE TO AN ORDER FORM, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT (“AGREEMENT”). 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. SOFTWARE LICENSE QUANTITIES, SOFTWARE DESCRIPTIONS, PURCHASED OPTIONS AND NUMBER OF USER(S) WILL BE DEFINED IN AN ORDER FORM OR OTHER VALID FORM OF AGREEMENT ACKNOWLEDGED IN WRITING BY SDL OR THE PARTY WHO PROVIDED THIS SOFTWARE TO YOU ("ORDER FORM"). IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCESS, OR USE THE SOFTWARE. SDL plc is the provider of the website and all linked pages owned and operated by SDL (the "Site"), and other SDL branded or co-branded websites and API (including sub-domains, international versions, widgets and mobile versions, as applicable) now existing or later developed (together with the Site, the "Service", as further defined below). The parties agree as follows:
1.1 “Affiliates” means an entity controlled by either party. The word “control” shall, in the context of a corporation, mean direct beneficial ownership of at least fifty per cent (50%) of the shares entitled to vote for members of the Board of Directors of such corporation, and, in the context of any other business entity, shall mean the right to exercise similar management and control such entity.
1.2 “Authorized Users” has the meaning set forth in the Order Form.
1.3 “Documentation” means the manuals and other technical and functional documentation provided by SDL to Client for use with the Service.
1.4 “Intellectual Property Rights” means patent rights (including patent applications and disclosures), copyrights, trademarks, trade secrets, know-how and any other intellectual property rights recognized in any country which is a party to the Berne Convention.
1.5 “Fee” means the fee for the Software as set forth in the Order Form.
1.6 “Order Form” means the Order Form for Software entered into by the parties and referencing this Agreement.
1.7 “Software” means the Software products and services that are ordered by Client under an Order Form and made available by SDL from time to time.
1.8 “Term” has the meaning set forth in the Order Form.
2.1 Subject to the terms and conditions set forth in this Agreement, SDL grants Client a non-exclusive, non-transferable license to use the Software only (i) for internal evaluation by Client; (ii) on Clients’ premises as designated in the Order Form; (iii) for the number of users as further specified in the Order Form; and (iv) for the duration of the Evaluation Period as specified in the Order Form. For purposes of this Agreement, “Software” shall mean the object code of the computer program(s) as specified in the Order Form.
3.1 Customer may not:
(i) assign, lease, transfer or sublicense the Software licences or documentation to any third party for use in that third party’s business operations;
(ii) cause or permit decompilation, disassembly or reverse engineering of the Software, in whole or in part, except to the extent as permitted by mandatory provisions of the applicable law;
(iii) disclose or make available to, or permit use of the Software by persons other than Customer’s employees or consultants;
(iv) exceed the licensed use of the Software as specified in the Order Form;
(v) use the Software for any other purpose than for Customer’s own internal evaluation;
(vi) write or develop derivative work or any other program based on SDL’s Confidential Information;
(vii) remove or modify any Software markings or any notice of SDL’s or its licensors proprietary rights; or
(viii) copy the Software, in whole or in part.
4.1 SDL and/or its licensors retain all ownership and intellectual property rights to the Software and related documentation and any modifications thereof. This Agreement does not constitute a transfer to Client of any title or intellectual property rights in or related to the Software and documentation or any modifications thereof.
5.1 By virtue of this Agreement, Client may have access to information that is considered confidential to SDL (“Confidential Information”). Confidential Information includes the terms and pricing as set out in this Agreement, the object-code Software or source code derived there from, any related documentation, information, data sheets, benchmark tests, specifications, and any other proprietary information clearly marked or identified at the time of disclosure as "confidential information" or information which can reasonably be assumed to be confidential without being explicitly marked as such.
5.2 Confidential Information does not include information which (i) is or becomes publicly available through no act or omission of the Licensee, (ii) is developed independently without violation of this clause, (iii) is obtained from a third party without restrictions on disclosure, or (iv) is required to be disclosed by applicable law, order of a court or other governmental entity.
5.3 Client agrees to hold the Confidential Information in confidence for a period of three (3) years from the date of disclosure. Confidential Information will be used solely for the purpose of this Agreement and will not be directly or indirectly disclosed, by action or omission, to any third party without SDL’s prior written consent. Client agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure.
6.1 Technical Support. Unless otherwise agreed in the Order Form SDL is not obligated to provide any technical support for this License and Software.
7.1 Fees. Any Fees will be defined and payable in accordance with the applicable Order Form. All Fees will be due and payable within thirty (30) days after the date of SDL’s invoice.
7.2 Interest. Except for any amounts disputed in good faith, all past due amounts will incur interest at a rate of 1.5% per month or the maximum rate permitted by law, whichever is less. Client will reimburse SDL for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting any overdue amounts.
7.3 Taxes. All Fees set forth in the applicable Order Form are exclusive of any sales, withholding, value-added, or other similar taxes imposed by applicable law that SDL must pay based on the Software (“Taxes”). Client agrees to pay or reimburse SDL for all such relevant taxes, except for taxes based on SDL’s income (which shall be the responsibility of SDL). If SDL has the legal obligation to pay or collect Taxes for which Client is responsible under this Section, Client will pay that amount unless Client can provide SDL with a valid tax exemption certificate authorized by the appropriate taxing authority.
7.4 License Compliance. SDL may track Client’s use of the Software in order to verify compliance with this Agreement.
8.1 The Software is licensed "AS IS." SDL makes no warranties, express, implied, statutory or otherwise with respect to the Software, and expressly disclaims all implied warranties of merchantability and fitness for a particular purpose. Without limiting the generality of the foregoing, any and all technical assistance and/or support to be provided by SDL to Client during the Evaluation Period shall be governed by an agreed to professional services terms and conditions.
9.1 This Agreement shall come into force on the Effective Date thereof and shall end upon the expiration of the Evaluation Period as defined in the Order Form, unless the parties agree in writing to an extension of that term. SDL may terminate this Agreement and the license granted herein at any time if Client fails to comply with any of the material terms and conditions of this Agreement. Client may terminate this Agreement upon written notice to SDL.
9.2 Within ten (10) days after termination or expiration of this Agreement, Customer shall return or destroy (at SDL’s sole discretion) and shall provide written certification of return or destruction of, all copies of the Software (including without limitation copies contained in hardware memory or otherwise loaded on hardware) and any Confidential Information of SDL.
9.3 Termination or expiration of this Agreement will not affect the obligations regarding Confidential Information, payments, limitation of liability, license restrictions and/or applicable law, and other clauses which by their content or nature are intended to survive. These provisions will survive termination of this Agreement.
9.4 Upon termination of this Agreement or as otherwise requested by SDL, Client shall return to SDL (or destroy, as instructed by SDL) all Confidential Information (including Confidential Information stored in electronic format) that exists in any form on any of Licensee’s or any computers, networks, storage media, or other systems controlled by Client or any resource of Client. Upon the request of SDL, Client shall certify in a writing signed by an officer of Client that the Client has fully complied with the requirements of this Section.
10.1 SDL shall not be liable to the other for any direct, indirect, special, exemplary, incidental or consequential damage, whether based on contract, tort, strict liability or any other legal theory, howsoever caused and whether such loss or damage was foreseeable, known, foreseen, or the party was advised of the possibility of such damage. SDL does not exclude or limit liability for: (a) death or personal injury caused by its negligence; or (b) any fraudulent misrepresentation on the part of SDL; or (c) any other liability that cannot be excluded by law.
11.1 Assignment. Client will have no right to assign or transfer this Agreement, in whole or in part, by operation of law or otherwise, without SDL’s prior written consent (not to be unreasonably withheld). Any attempt to assign this Agreement, without such consent, will be null and of no effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party's successors and permitted assigns.
11.2 Governing Law. This Agreement will be governed by and construed in accordance with the laws of England and Wales, excluding that body of laws known as conflicts of law. Any legal action or proceeding arising under this Agreement will be brought exclusively in the English Courts and the parties hereby irrevocably consent to the personal jurisdiction and venue therein.
11.3 Nonexclusive Remedy. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
11.4 Severability. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect.
11.5 Waiver. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.
11.6 Rights of Third Parties. Except where expressly provided to the contrary, this Agreement is not intended to be for the benefit of, and shall not be enforceable by any person who is not named at the date of this Agreement as a party to it or any person who claims rights under the Contracts (Rights of Third Parties) Act 1999 or otherwise, and neither party can declare itself a trustee for the benefit of a third party.
11.7 Notices. All notices required or permitted under this Agreement will be in writing and delivered by confirmed facsimile transmission, by courier or overnight delivery services, or by certified mail, and in each instance will be deemed given upon receipt. All communications will be sent to the addresses set forth above or to such other address as may be specified by either party to the other in accordance with this Section. Either party may change its address for notices under this Agreement by giving written notice to the other party by the means specified in this Section.
11.8 Force Majeure. Neither of the parties shall be obliged to meet any obligations, including any guarantee obligation agreed between the parties, if it is prevented from doing so as a result of force majeure. Force majeure shall include but not limited to: (i) government measures, (ii) electricity failure, (iii) faults affecting the internet, computer network or telecommunication facilities, (iv) war, (v) terrorism, (vi) riot, (vii) acts of God, and (vii) governmental action. If a situation of force majeure lasts for longer than forty-five days, either of the parties shall be entitled to terminate the agreement in writing.
11.9 Relationship of Parties. The parties to this Agreement are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
11.10 Export Control. Client agrees to comply fully with all applicable export laws and regulations of the United States and other jurisdictions to ensure that neither the Service, nor any direct product thereof are exported or re-exported in violation of such laws, or used for any purposes prohibited by such laws.
11.11 Government Rights. If the Service is acquired by or on behalf of the United States government, any use, duplication or disclosure of the Service is subject to restrictions set forth in FAR 52.227 19 and DFAR 227.7200, 227.7202 (1-4), as applicable. The Service is "commercial computer software" and is licensed with only "Restricted Rights".
11.12 Entire Agreement. This Agreement, including any schedules hereto, constitutes the complete and exclusive understanding and agreement between the parties regarding its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, relating to its subject matter. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of both parties. Any terms and conditions contained in any purchase order that are inconsistent with or in addition to the terms and conditions of this Agreement will be deemed stricken from such purchase order, unless expressly agreed to in writing by SDL.
11.13 Free or Open Source Software. The Service may include programs or code that are licensed under an Open Source Software ("OSS") license model. OSS programs and code are subject to the terms, conditions and obligations of the applicable OSS license, and are SPECIFICALLY EXCLUDED FROM ALL WARRANTY AND SUPPORT OBLIGATIONS DESCRIBED ELSEWHERE IN THIS AGREEMENT.