END-USER LICENSE AGREEMENT

 

LICENSE FOR ARENDAR ENTERPRISE TEST SOFTWARE

IMPORTANT—READ CAREFULLY: This End-User License Agreement (“EULA”) is a legal agreement between you (either an individual or a single entity) and VI Technology, Inc. (VI) for the VI software product identified above, which includes computer software and may include associated media, printed materials, and “online” or electronic documentation (“Product”).  An amendment or addendum to this EULA may accompany the Product.

YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA BY INSTALLING, COPYING, OR OTHERWISE USING THE PRODUCT. IF YOU DO NOT ACCEPT THEM, DO NOT INSTALL OR USE THE PRODUCT.

 

These terms supersede any electronic terms which may be contained within the software.  If any of the terms contained within the software conflict with these terms, these terms will control.

Each license for the Product is acquired under either the Server + Client Access License model or the Per Processor license model, and may not be changed.  If you comply with these license terms you have the rights below for each software license you acquire or each server you appropriately license, as further explained in sections 2 and 3.

1.     Overview

1.1.   The Product includes the following software:

Server Software

a.   Server Module provides services or functionality on your server (computers capable of running the Server Software are “Servers”) for storing data into the Arendar Database and for managing and publishing data and reports from the Arendar Database.

b.  Dashboard Module provides services and functionality on a Server to allow a user, device, or a Server to view data and reports through a standard web browser.

c.   Report Services integrate with Microsoft SQL Server Reporting Services to publish Arendar reports to the Web.

and

Client Software

a.   Administration Utility configures the Server Software and Microsoft SQL Server database for storing test data.

b.  Security Manager configures and manages the Server Software security permission levels for users, groups, and applications.

c.   Data Import Services parse test data and pass the results to the Server Software for storage in the database. Data Import Services consists of two components: the Data Import Agent and the Data Import Wizard.

d.  Report Components integrate with Microsoft SQL Server Reporting Services to create and publish Arendar report templates.

e.   Station Client Software allows an electronic device to connect to and utilize the Server Software and to source data for the Arendar database. The Station Client Software includes an Application Programming Interface (API) to allow access to the Station Client Software from computer programming languages.

 

1.2.   License Models. This software is licensed based on either:

•  the number of instances of the Server Software and its components that you run and the number of devices and users that access instances of the Server Software (see section 2 – Terms Specific to the Server + Client Access License Model); or

•  the number of physical and virtual processors used by operating system environments in which you run instances of the Server Software (see section 3 – Terms Specific to the Per Processor License Model).

1.3.   Definitions

•  Instance. You create an “instance” of software by executing the software’s setup or install procedure. You also create an instance of software by duplicating an existing instance.  References to software in this agreement include “instances” of the software.

•  Run an Instance.  You “run an instance” of software by loading it into memory and executing one or more of its instructions. Once running, an instance is considered to be running (whether or not its instructions continue to execute) until it is removed from memory.

•  Operating System Environment.  An “operating system environment” is one instance of an operating system and instances of applications, if any, configured to run on that operating system instance. There are two types of operating system environments, physical and virtual. A physical operating system environment is configured to run directly on a physical hardware system. A virtual operating system environment is configured to run on a virtual (or otherwise emulated) hardware system. A physical hardware system can have either or both of the following:

•  one physical operating system environment

•  one or more virtual operating system environments

•  Server.  A “server” is a computer or a physical hardware system capable of running the Arendar Server Software.  A hardware partition or blade is considered to be a separate physical hardware system.

•  Physical and Virtual Processors. A “physical processor” is a processor in a computer or a physical hardware system. Physical operating system environments use physical processors. A “virtual processor” is a processor in a virtual (or otherwise emulated) hardware system. Virtual operating system environments use virtual processors. A virtual processor is considered to have the same number of threads and cores as each physical processor on the underlying physical hardware system.

•  Assigning a Server Software License.  To “assign a Server Software license” means simply to designate that license to one server.

2.     TERMS SPECIFIC TO THE SERVER + CLIENT ACCESS LICENSE MODEL. 

2.1.    Server Software License.

2.1.1. Before you run any instance of the Server Software you must acquire a server license for each physical or virtual processor installed on each operating system environment running the Server Software and assign that license to one of your servers. That server is the licensed server for that particular license. You may not assign the same license to more than one server.

2.1.2. If the Dashboard Module or Report Services components are run in a separate server than the Server Module, then they require an additional license for each additional Server where they are installed.

2.1.3. You may reassign a software license if you retire the licensed server.  If you reassign a license, the server to which you reassign the license becomes the new licensed server for that license.

2.2.   Running Instances of the Server Software.  For each server to which you have assigned the required number of software licenses, you may run, at any one time, any number of instances of the Server Software in physical and virtual operating system environments on the licensed server. However, the total number of physical and virtual processors used by those operating system environments cannot exceed the number of software licenses assigned to that server.

2.3.   Client Access Licenses (CALs).

2.3.1. In addition to the Server Software license, you must acquire a CAL for each device or user that accesses instances of the Server Software directly or indirectly through the Client Software defined in section 1.1. The Client Software includes:

•  Administration Utility

•  Security Manager

•  Data Import Services

•  Station Client Software

•  Report Components

2.3.2. Types of CALs.  There are two types of CALs:  one for devices and one for users.

• Each device CAL permits one device to access instances of the Server Software on your licensed servers. Device CALs may consist of:

o Test System – A device including a manual or electronic controller coupled to instrumentation that sources data that is the basis for data provided to the Arendar server through manual, electronic or automated data transfers.

o Master Controller – A device including a manual or electronic controller that manages data from one or more Test Systems and that sources additional test data that is the basis of data provided to the Arendar server through manual, electronic or automated data transfers.

o Sourcing Test Data.  A device “sources” test data if it generates, manages, formats, modifies or otherwise manipulates test data that is the basis for data ultimately provided to the Arendar server.

•  Each user CAL permits one user, using any device, to access instances of the Server Software on your licensed servers. You may use a combination of device and user CALs.

•  MULTIPLEXING - Hardware or software that reduces the number of devices directly accessing or providing data to the Arendar server does not reduce the number of required CALs.

2.3.3. Your CALs permit access to instances of earlier versions, but not later versions, of the Server Software.

2.3.4. Reassignment of CALs.  You may

• permanently reassign your device CAL from one device to another, or your user CAL from one user to another; or

• temporarily reassign your device CAL to a loaner device while the first device is out of service or your user CAL to a temporary worker while the user is absent.

2.  

2.1.  

2.2.  

2.3.  

2.3.1.  

2.3.2.  

2.3.3.  

2.3.4.  

2.3.5. CAL Obligation.  It is your obligation to determine the correct number of CALs required for your Arendar enterprise test system. You must contact a VI representative for clarification if you cannot correctly determine the number of CALs you require.

2.4.   Included Microsoft Programs.  The Product may contain Microsoft SQL Server software or other Microsoft programs. The license terms with those programs apply to your use of them.

3.     TERMS SPECIFIC TO THE PER-PROCESSOR LICENSE MODEL.

3.1.   Server License.

3.1.1. Before you run any instance of the Server Software you must acquire a server license for each physical or virtual processor installed on each operating system environment running the Server Software and assign that license to one of your servers. That server is the licensed server for that particular license. You may not assign the same license to more than one server.

3.1.2. If the Dashboard Module or Report Services components are run in a separate server than the Server Module, then they require an additional license for each additional Server where they are installed.

3.1.3. You may reassign a software license if you retire the licensed server.  If you reassign a license, the server to which you reassign the license becomes the new licensed server for that license.

3.2.   Running Instances of the Server Software.  For each server to which you have assigned the required number of software licenses, you may run, at any one time, any number of instances of the Server Software in physical and virtual operating system environments on the licensed server. However, the total number of physical and virtual processors used by those operating system environments cannot exceed the number of software licenses assigned to that server.

3.3.   Running Instances of the Client Software.  You may run or otherwise use any number of instances of the Client Software defined in section 1.1 for any number of users or devices. The Client Software includes:

•  Administration Utility

·  Security Manager

•  Data Import Services

•  Station Client Software

•  Report Components

3.4.   Included Microsoft Programs.  The Product may contain Microsoft SQL Server software or other Microsoft programs. The license terms with those programs apply to your use of them.

4.     RESERVATION OF RIGHTS. VI reserves all rights not expressly granted to you in this EULA.

5.     INTELLECTUAL PROPERTY RIGHTS.  The Product is protected by copyright and other intellectual property laws and treaties. VI or its suppliers own the title, copyright, and other intellectual property rights in the Product. All intellectual property rights to the Licensed Software are and will remain the sole and exclusive property of VI.  At no time will you have any interest, by license, ownership or otherwise, in the same, except to the extent expressly provided in this Agreement.  This Agreement shall not be construed as a sale of any of the rights in the Product.  The Product is licensed, not sold.  You also agree that VI will at all times retain all rights, title and interest in and to any modifications of the Product and any derivative works based thereon, regardless of the identity of the entity creating such modifications or derivative works.  Title to and ownership of all complete and partial copies of the Product, whether in machine-readable, printed or other form and including, without limitation, all algorithms, modules, components, designs, utilities, subsets, objects, program listings, technology, tools, models, methodologies, programs, systems, analysis frameworks, processes, leading or best practices and specifications pertaining to the Product, are and will remain the sole property of VI and/or its licensors.

6.     PROTECTION OF PROPRIETARY INFORMATION.  You acknowledge that the Product includes proprietary information of VI and that the Product constitutes the valuable property of VI.  You agree to take all reasonable steps to safeguard any and all copies of the Product against unauthorized use, disclosure, reproduction or tampering, and shall assist VI in the enforcement of its rights in the event of unauthorized disclosure by any person under your control or service.  You shall not remove or obscure any VI copyright, trademark, patent or other proprietary rights notice present on the Product.

7.     SUPPORT, MAINTENANCE & TRAINING NOT INCLUDED.  VI will provide phone support to answer technical questions related to the Product for up to 30-days from the shipping date for the Product.  After this time period, unless agreed to otherwise by VI, VI will provide no support, maintenance or training for the Product as part of this EULA.  If you are interested in additional support, maintenance or training from VI, please contact a VI representative.  Nothing in this provision shall be construed as providing a warranty, representation or guarantee that any problems you experience will be resolved through this phone support.

8.     NO RENTAL/NO COMMERCIAL HOSTING. You may not rent, lease, lend, or provide commercial test data management services with the Product.

9.     UPGRADES AND THE STANDARD SUPPORT PROGRAM (“SSP”), AND THE EXTENDED SUPPORT PROGRAM (“ESP”). To use a Product identified as an upgrade, you must first be licensed for the product identified by VI as eligible for the upgrade. After upgrading, you may no longer use the product that formed the basis for your upgrade eligibility.   For each year you purchase a Standard Support Program (“SSP”), or Extended Support Program (“ESP”) for the Product, VI agrees to provide you a copy of any upgrades in the software for the Product (“Upgrade Software”) during that year, as long as you have paid the required SSP or ESP fees.  All Upgrade Software is subject to the terms of this EULA and the terms of any additional Supplement EULA distributed with the Upgrade Software.  With respect to Upgrade Software, for any conflicts between a Supplemental EULA and this EULA, the terms of the Supplemental EULA will control.  In addition, VI expressly reserves the right to modify its licensing program in any manner it desires for future upgrades and/or releases of the Product.

10.  ADDITIONAL SOFTWARE/COMPONENT LICENSES. This EULA applies to updates or supplements to the original Product provided by VI, unless we provide other terms along with the update or supplement. The Product may contain certain components (each, a “Component”) that included a separate end-user license agreement (a “Component Agreement”). The terms of any Component Agreement are herein incorporated by reference to this EULA; in the event of any inconsistencies between this EULA and any Component Agreement, the terms of this EULA shall control.

11.  LIMITATION ON REVERSE ENGINEERING, DECOMPILATION, AND DISASSEMBLY. You may not reverse engineer, decompile, or disassemble the Product, except and only to the extent that it is expressly permitted by applicable law notwithstanding this limitation.

12.  CONSENT TO USE OF DATA. You agree that VI and its affiliates may collect and use technical information you provide as a part its support services related to the Product.

13.  NOT FOR RESALE. The Product may not be resold, transferred, redistributed or used for any purpose other than demonstration, test, or evaluation.

14.  COPIES.  Licensee may make one copy of the Product for archival purposes and only for use as back-ups when the installed Product is no longer operational.

15.  UNINTENDED OR UNFORESEEN EVENTS.  Participant acknowledges that the Licensed Program may have unintended or unforeseen effects, including without limitation program errors, damage to or loss of data, programs, or equipment, and unavailability or interruption of operations, and that Participant assumes the risk of such effects.  VI has no obligation to debug or provide any technical support for the Product.  Except as expressly permitted under this Agreement, duplication of the Product for any purpose is forbidden.  Using the Product for illegal purposes or in support of illegal activities is strictly prohibited. 

16.  EXPORT RESTRICTIONS. You acknowledge that Product is of U.S. origin. You agree to comply with all applicable international and national laws that apply to the Product, including the U.S. Export Administration Regulations, as well as end-user, end-use, and destination restrictions issued by U.S. and other governments.

17.  EXCLUSION OF WARRANTIES.  THE LICENSED PROGRAM IS PROVIDED “AS IS” AND WITH ALL FAULTS;  NO WARRANTY, REPRESENTATION, CONDITION, UNDERTAKING OR TERM, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AS TO THE CONDITION, QUALITY, DURABILITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OR USE OF THE LICENSED PROGRAM IS GIVEN OR ASSUMED BY VI, ITS LICENSORS OR ITS AGENTS AND ALL SUCH WARRANTIES, REPRESENTATIONS, CONDITIONS, UNDERTAKINGS AND TERMS ARE HEREBY EXCLUDED, AND ALL INCIDENTAL, CONSEQUENTIAL, AND/OR SPECIAL DAMAGES ARISING OUT OF USE OF THE LICENSED PROGRAM ARE EXCLUDED.  BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, THE ABOVE EXCLUSION MAY NOT APPLY TO ALL PARTICIPANTS.

18.  EXCLUSION OF INCIDENTAL, CONSEQUENTIAL, AND CERTAIN OTHER DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL VI OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE PRODUCT, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS EULA, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT, OR BREACH OF WARRANTY OF VI OR ANY SUPPLIER, AND EVEN IF VI OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

19.  LIMITATION OF LIABILITY AND REMEDIES. Notwithstanding any damages that you might incur for any reason whatsoever (including, without limitation, all damages referenced above and all direct or general damages), the entire liability of VI and any of its suppliers under any provision of this EULA and your exclusive remedy for all of the foregoing (except for any remedy of repair or replacement elected by VI with respect to any breach of the Limited Warranty) shall be limited to the greater of the amount actually paid by you for the Product or U.S.$5.00. The foregoing limitations, exclusions, and disclaimers shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.

20.  NO INDEMNITY.  VI provides you no indemnity with respect to your installation or use of the Product.

21.  APPLICABLE LAW AND JURISDICTION. This Agreement shall be governed by the substantive laws of the State of Texas, United States of America, excluding (i) the conflicts of law provisions thereof that would cause the laws of any other jurisdiction to apply, and (ii) the United Nations Convention on Contracts for the International Sale of Goods.   For the purposes of any dispute arising under this Agreement, Participant expressly and irrevocably consents to the exclusive jurisdiction of the federal and state courts in and for the city and county of VI’s principal place of business on the date that litigation regarding the dispute is initiated.

22.  TERMINATION.  VI may terminate this EULA if you violate the terms of the EULA.  Upon termination, you shall immediately uninstall the Product, cease use, and destroy any and all copies of the Product.  You may terminate this Agreement by uninstalling all copies of the Product and by destroying all copies of the Product.

23.  NO ASSIGNMENT.  Participant may not assign any rights or delegate any duties under this EULA, and any such attempted assignment or delegation shall be void.

24.  ENTIRE AGREEMENT.  The terms of this Agreement constitute the entire agreement between the parties.  And this Agreement shall constitute the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous proposals (oral or written), negotiations, conversations, or discussions between or among the parties relating to the subject matter of this Agreement and all past dealing or industry custom.

25.  SEVERABILITY.  If one or more provisions of this Agreement shall be held to be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected, and a valid provision that most closely approximates the intent of the invalid provision shall be substituted.

26.  USE WARNING. (1) VI PRODUCTS ARE NOT DESIGNED WITH COMPONENTS AND TESTING FOR A LEVEL OF RELIABILITY SUITABLE FOR USE IN OR IN CONNECTION WITH SURGICAL IMPLANTS OR AS CRITICAL COMPONENTS IN ANY LIFE SUPPORT SYSTEMS WHOSE FAILURE TO PERFORM CAN REASONABLY BE EXPECTED TO CAUSE SIGVIFICANT INJURY TO A HUMAN.  (2) IN ANY APPLICATION, INCLUDING THE ABOVE, RELIABILITY OF OPERATION OF THE SOFTWARE PRODUCTS CAN BE IMPAIRED BY ADVERSE FACTORS, INCLUDING BUT NOT LIMITED TO FLUCTUATIONS IN ELECTRICAL POWER SUPPLY, COMPUTER HARDWARE MALFUNCTIONS, COMPUTER OPERATING SYSTEM SOFTWARE FITNESS, FITNESS OF COMPILERS AND DEVELOPMENT SOFTWARE USED TO DEVELOP AN APPLICATION, INSTALLATION ERRORS, SOFTWARE AND HARDWARE COMPATIBILITY PROBLEMS, MALFUNCTIONS OR FAILURES OF ELECTRONIC MONITORING OR CONTROL DEVICES, TRANSIENT FAILURES OF ELECTRONIC SYSTEMS (HARDWARE AND/OR SOFTWARE), UNANTICIPATED USES OR MISUSES, OR ERRORS ON THE PART OF THE USER OR APPLICATIONS DESIGNER (ADVERSE FACTORS SUCH AS THESE ARE HEREAFTER COLLECTIVELY TERMED “SYSTEM FAILURES”).  ANY APPLICATION WHERE A SYSTEM FAILURE WOULD CREATE A RISK OF HARM TO PROPERTY OR PERSONS (INCLUDING THE RISK OF BODILY INJURY AND DEATH) SHOULD NOT BE RELIANT SOLELY UPON ONE FORM OF ELECTRONIC SYSTEM DUE TO THE RISK OF SYSTEM FAILURE.  TO AVOID DAMAGE, INJURY, OR DEATH, THE USER OR APPLICATION DESIGNER MUST TAKE REASONABLY PRUDENT STEPS TO PROTECT AGAINST SYSTEM FAILURES, INCLUDING BUT NOT LIMITED TO BACK-UP OR SHUT DOWN MECHANISMS.  BECAUSE EACH END-USER SYSTEM IS CUSTOMIZED AND DIFFERS FROM VI’S TESTING PLATFORMS AND BECAUSE A USER OR APPLICATION DESIGNER MAY USE VI PRODUCTS IN COMBINATION WITH OTHER PRODUCTS IN A MANNER NOT EVALUATED OR CONTEMPLATED BY VI, THE USER OR APPLICATION DESIGNER IS ULTIMATELY RESPONSIBLE FOR VERIFYING AND VALIDATING THE SUITABILITY OF VI PRODUCTS WHENEVER VI PRODUCTS ARE INCORPORATED IN A SYSTEM OR APPLICATION, INCLUDING, WITHOUT LIMITATION, THE APPROPRIATE DESIGN, PROCESS AND SAFETY LEVEL OF SUCH SYSTEM OR APPLICATION.

 

***ARENDAR is a registered trademark and ‘Powering Enterprise Test’ is a trademark of VI Technology, Inc.