LogiGear® TestArchitectTM Software License Agreement
PLEASE READ THIS SOFTWARE LICENSE AGREEMENT (THIS “LICENSE”) CAREFULLY BEFORE INSTALLING AND USING THE SOFTWARE. BY CLICKING “I ACCEPT,” BELOW, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE FOR YOUR ORGANIZATION. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT INSTALL OR USE THE SOFTWARE.
1. Definitions
(i) “Licensor” means LogiGear Corporation whose registered office is at 1730 S. Amphlett Blvd., Suite 200, San Mateo, California 94402, USA.
(ii) “Licensee” means an individual or a legal entity exercising rights under, and complying with all of the terms of, this Agreement.
(iii) “License Server” means a server part of TestArchitect that enables administration of granted licenses.
(iv) “License Key” means a unique key-code that enables a Licensee to run the Software. Only Licensor and/or its representatives are permitted to produce License Keys for the Software.
(v) “Node-Locked License” is a type of license under which all functionalities of the Software are licensed for use on one computer or computing device at a time. The number of running instances of the Software at any one time may not exceed the number of node-Locked seats licensed.
(vi) “Floating License” is a type of license under which all functionalities of the Software may be used on one network by different devices at the same time up, to the number of floating seats licensed. The number of running instances of the Software at any one time may not exceed the number of floating seats licensed.
(vii) “Run-Only Floating License” is an extension of “Floating License” that allows for test execution only without the full functionality of the floating license. Under a Run-Only Floating License, the number of concurrent computer or computing devices used for test execution at any one time may not exceed the number of run-only floating seats licensed.
Site License: Under a Site License, an unlimited number of concurrent installations of the Software may be used on a mutually agreed upon number of networks by an unlimited number of different devices at the same time. The number of running instances of the Software at any one time is unrestricted.
Education License: Under an Education License, either a Node-Locked License or Floating User License is purchased for a subscribed period of time. The Software may only be used by a student or a faculty/staff member for educational purposes while actively studying or teaching at an educational institution and for no other purpose. Educational Licenses may not be used for commercial, professional, or for-profit purposes. The number of running instances of the Software using an Educational License at any one time may not exceed the number of node-locked or floating seats licensed.
Trial License: Under a Trial License, you may review, demonstrate and evaluate the trial version of the Software for a limited time period and on one network by different devices at the same time by a mutually agreed upon number of users. The trial version of the Software contains all the features and functionality of the floating version of the Software. The trial version of the Software will cease operating after a predetermined amount of time.
2. License Grant
2.1 Pursuant to and conditional upon Your adherence to the terms and conditions of this License, and to the terms and conditions of the LogiGear Privacy Policy, Licensor grants You, the Licensee, a revocable, non-exclusive, non-transferable, non-sublicensable, limited license to install and use, for internal purposes only, the LogiGear® TestArchitect™ software program, and online or electronic documentation (collectively, the “Software”) as permitted by the type of license you have purchased as described in this Agreement. The type of license you have purchased is specified in your product invoice. Licensor owns and retains all rights, title and interest in and to the Software, which are all protected by U.S. and international copyright laws. Licensor retains all rights not expressly granted to Licensee in this Agreement.
2.2 Licensee may not:
(i) Sell, redistribute, encumber, give, lend, rent, lease, sublicense, or otherwise transfer Software, or any portions of the Software to anyone;
(ii) Reverse engineer, decompile, disassemble, modify, translate, or make any attempt to discover the source code of Software, or create derivative works from Software;
(iii) Use the same License Key for running multiple TestArchitect License Servers;
(iv) Violate any applicable laws, rules or regulations in connection with your access or use of the Software;
(v) Remove, alter, or obscure any proprietary notices (including any notice of copyright or trademark) that exist on or in the Software; and
(vi) Use the Software for any revenue-generating endeavor, commercial enterprise, or service-bureau business.
3. Permitted Uses and Restrictions
This License allows you to install and use the Software during a ninety-nine (99) year time period, in accordance with the type of license, product and product edition you have purchased, unless terminated as provided herein. You understand and agree that this license is not an instrument of sale, and does not transfer any title or ownership rights in the Software to You. You understand and agree that the Software is licensed to You, and that You do not have any rights in the Software other than those rights that are explicitly licensed to you. Except with respect to Trial Licenses and Site Licenses, additional Node-Locked License seats or additional Floating License seats or Run-only Floating License seats, depending on the type of license you have purchased, may only be added for an additional fee.
You may make one copy of the Software in machine-readable form for back-up purposes only. The back-up copy must include all copyright and trademark information contained on the original.
Audit: At Licensor’s request, you will provide within thirty (30) days from the request date, an accurate and complete report verifying Your Software deployment. You agree that the report will be based on technological features of the Software that provide Software deployment verification. If a report identifies that You are out of compliance with the license terms of this Agreement, you will be required to purchase the additional licenses and pay any reinstatement fees associated with the licenses and Support. Licensor may also charge an out-of-compliance fee.
4. Limited Warranty and Disclaimer
4.1. Except with respect to the trial version of the Software, Licensor warrants that, for a period of 30 days from the date of original purchase, as evidenced by a copy of your invoice, when used with a recommended hardware and software configuration, the Software will perform in substantial conformance with the documentation supplied with the Software. THE TRIAL VERSION OF THE SOFTWARE IS PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. YOUR USE AND RELIANCE UPON THE TRIAL VERSION OF THE SOFTWARE IS AT YOUR SOLE RISK AND DISCRETION. LICENSOR HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES, AND GUARANTIES REGARDING THE USE OF THE TRIAL VERSION OF THE SOFTWARE.
4.2. LICENSOR EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES AND/OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. LICENSOR DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. FURTHERMORE, LICENSOR DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE, THE RESULTS OF THE SOFTWARE, OR RELATED DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, STABILITY, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
5. Exclusive Remedy
Provided that any non-compliance with the warranty set forth in Section 5 is reported in writing to Licensor no more than 30 days following the date of original purchase of the Software, Licensor will use commercial efforts to supply you with a replacement copy of the Software that substantially conforms to its documentation or refund to you your purchase price for the Software, at Licensor’s option. Licensor shall have no responsibility if the Software has been altered in any way, if the Software has not been installed properly, or if the failure arises out of use of the Software with other than a recommended hardware and software configuration. Any misuse, accident, abuse, modification or misapplication of the Software will void the warranty above. THIS REMEDY IS THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO YOU FOR BREACH OF EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SOFTWARE.
6. Limitation of Liability
TO THE EXTENT ALLOWED BY LAW, UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL LICENSOR BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION OR THE LIKE, ARISING OUT OF OR RELATING TO THIS LICENSE, INCLUDING, BUT NOT LIMITED TO, YOUR USE OF NEW SOFTWARE VERSIONS WITH PREVIOUS SOFTWARE RESULTS, OR YOUR USAGE OF PREVIOUS SOFTWARE VERSIONS WITH NEW SOFTWARE RESULTS, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall LICENSOR's total liability to you for all damages exceed the purchase price, if any, that you paid for the Software.
7. Termination
Your rights under this License will terminate automatically without notice from Licensor if you fail to comply with any terms of this License. You agree upon such termination to cease all use of the Software and destroy or permanently erase all copies of the Software in any form in your possession or under your control.
8. Export Law Assurances
You may not use or otherwise export or re-export the Software except as authorized by United States law and the laws of the jurisdiction in which the Software was obtained. In particular, but without limitation, the Software may not be transferred, exported, re-exported or used (i) into (or to a national or resident of) any U.S. embargoed country or (ii) transferred, exported, re-exported or used in any manner in violation of the export laws of the United States or the laws of any other country or any other export laws, restrictions or regulations. If Licensor receives notice that You are or You have become identified as a sanctioned or restricted party under applicable law, Licensor will not be obligated to perform any of its obligations under this Agreement if such performance would result in violation of the sanctions or restrictions.
9. Government End Users
The Software is provided with “Restricted Rights.” Without limiting the foregoing, use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in this License and as provided in subparagraph (b) (1) (ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c) (1) and (2) of the Commercial Computer Software Restricted Rights at 48 CFR 52.227-19, as applicable.
10. Payment of Fees
Licensee agrees to pay Licensor the fees set forth in each applicable invoice and the payment terms shown therein. Fees do not include any present or future sales, use, value added, excise, withholding or similar tax, customs duties or import or export fees. Licensee will be responsible for paying or reimbursing Licensor for any applicable taxes later assessed by any state, local or other government agency. Licensor will separately itemize any applicable taxes or duties on each invoice.
11. Maintenance Services
Licensee may optionally elect to receive Annual Software Maintenance Services (“Maintenance”), which entitles Licensee to receive upgrades (if and when applicable), patches and defect fixes to existing Software but does not include licenses or permission to download, copy, or use any new software modules or editions that are separately licensed in a new version. Maintenance will be provided pursuant to the Maintenance and Support Terms and Conditions , and will commence on the first anniversary of the License start date and automatically renew for full one-year periods, unless terminated by notification in writing no later than sixty days prior to the renewal date. Annual Maintenance fees will be as specified in the applicable invoice. In the event of a lapse in Maintenance renewal, Licensee will be required to pay for all prior periods where Maintenance had lapsed before Maintenance would be renewed.
12. High Risk Systems terms:
YOU UNDERSTAND THAT THE SOFTWARE MAY FAIL AND IS NOT DESIGNED, DEVELOPED, TESTED, OR INTENDED TO BE RELIABLE IN THE CONTEXT OF HIGH-RISK SYSTEMS. LICENSOR HAS NO RESPONSIBILITY FOR, AND YOU WILL INDEMNIFY AND HOLD HARMLESS LICENSOR FROM, ALL CLAIMS, SUITS, DEMANDS AND PROCEEDINGS ALLEGING, CLAIMING, SEEKING, OR ASSERTING ANY LIABILITY, LOSS, OBLIGATION, RISK, COST, DAMAGE, AWARD, PENALTY, SETTLEMENT, JUDGMENT, FINE OR EXPENSES (INCLUDING ATTORNEY FEES) ARISING FROM OR IN CONNECTION WITH YOUR USE OF THE SOFTWARE ON OR IN A HIGH RISK SYSTEM, INCLUDING THOSE THAT COULD HAVE BEEN PREVENTED BY DEPLOYMENT OF FAIL-SAFE OR FAULT-TOLERANT FEATURES TO THE HIGH RISK SYSTEM, OR ARE BASED ON A CLAIM, ALLEGATION, OR ASSERTION THAT THE FUNCTIONING OF HIGH RISK SYSTEM DEPENDS OR DEPENDED ON THE FUNCTIONING OF THE SOFTWARE, OR THAT THE FAILURE OF THE SOFTWARE CAUSED A HIGH RISK SYSTEM TO FAIL.
13. Controlling Law and Severability
This License shall be governed by the laws of the United States and the State of California, without regard to its conflicts of laws rules. Any legal action shall be adjudicated in the County of San Mateo, State of California or, in the case of Federal jurisdiction, in the Northern District of California. In the event that any legal action is required to enforce or interpret any provisions of this License, the substantially prevailing party in such action is entitled to recover, in addition to any other relief granted, all reasonable costs and expenses, including attorneys' fees, incurred in connection therewith. If for any reason a court of competent jurisdiction finds any provision, or portion thereof, to be unenforceable, the remainder of this License shall continue in full force and effect.
14. Marketing
Licensee agrees to be identified as a customer of Licensor and that Licensor may refer to Licensee by name, trade name and trademark, if applicable, and may briefly describe Licensee's business in Licensor’s marketing materials and on Licensor’s web site. Licensee hereby grants Licensor a license to use Licensee's name and any of Licensee's trade names and trademarks solely in connection with the rights granted to Licensor pursuant to this marketing section.
15. Use of Data
By your acceptance of this License, you authorize the collection, use and disclosure of information collected by Licensor for the purposes provided for in the License and the Privacy Policy. Licensor may use this information to improve our products and services. You are encouraged to review the terms of the License and Privacy Policy from time to time, as Licensor may revise or change the content of License or Privacy Policy. The Privacy Policy can be found on the LogiGear website: https://www.testarchitect.com/legal/privacy-policy.
16. Privacy and Data Collection of Personal Data or System Information.
The Software or Support may employ applications and tools to collect Personal Data, sensitive data or other information about You and/or Your end users ( including name, address, e-mail address and payment details), their computers, files stored on their computers, or their computers’ interactions with other computers (including information regarding network, licenses used, hardware type, model, hard disk size, CPU type, disk type, RAM size, 32 or 64 bit architecture, operating system types, versions, locale, BIOS version, BIOS model, total scanners deployed, database size, system telemetry, device ID, IP address, location, content, processes and services information, frequency and details of update of Licensor Software, information about third-party products installed, (collectively, Data).
The collection of the Data may be necessary to provide You with the relevant Software or Support functionalities as ordered (including detecting and reporting threats and vulnerabilities on Your computer network), to enable Licensor to improve Software or Support (including content synchronization, device tracking, troubleshooting, etc.), to enable Licensor to manage licenses to Software or Support, and to further or improve overall security for You. You may be required to uninstall the Software or disable Support to stop further Data collection that supports these functions.
By entering into this Agreement, or using the Software, Support or service subscription, You agree to the LogiGear Privacy Policy available at https://www.testarchitect.com/legal/privacy-policy and to the collection, processing, copying, backup, storage, transfer and use of the Data by Licensor and its service providers, in, from and to the United States, Europe, or other countries or jurisdictions potentially outside of Your jurisdiction as part of the Software, Support or service subscription. Licensor will only collect, process, copy, backup, store, transfer and use Personal Data in accordance with the LogiGear Privacy Policy.
You will secure any and all privacy-related rights and permissions from individual persons as may be required by regulation, statute, or other law or Your internal policies or guidelines in order to disclose Your Personal Data, in order to use the Software, and/or in connection with Licensor’s performance of Support or otherwise under this Agreement.
17. Open-Source Software:
The Software may include components (including programs, applications, tools, utilities, libraries, and other programming code) that are made available from third parties under a free or open source software licensing model (FOSS Code). FOSS Code components included with the Software are redistributed by Licensor under the terms of the applicable FOSS Code license for such component.
18. Entire Agreement
This License constitutes the entire agreement between the parties with respect to the use of the Software and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this License will be binding unless in writing and signed by Licensor.
If you have any questions, please contact LogiGear in writing: LogiGear Corporation, 1730 S. Amphlett Blvd., Suite 200, San Mateo, CA 94402 or send an email to [email protected].
EXHIBIT A
MAINTENANCE AND SUPPORT SCHEDULE
This Maintenance and Support Schedule is attached to, incorporated as a part of, and subject to the terms and conditions of the LOGIGEAR TESTARCHITECT SOFTWARE LICENSE AGREEMENT (the “Agreement”) between the Parties.
This Maintenance and Support Schedule (the “Schedule”) sets forth the maintenance and support relationship between Licensor and Licensee pursuant to which each Licensee may receive maintenance and support services (the “Maintenance and Support Services”) provided by Licensee in accordance with the following terms and conditions:
1. DEFINITIONS
In this Maintenance and Support Schedule, the following terms have the meanings set forth in this Article 1. Any capitalized terms used but not defined in this Maintenance and Support Schedule will have the meanings ascribed thereto in the Agreement.
1.1 “Release” shall mean a major new version of the Software that is represented by a change to the left of the decimal point in the version number of the Software (e.g., v1.00 to v2.00).
1.2 “Update” shall mean any modification or addition that, when made or added to the Software, corrects errors or provides functionality enhancements andadds new capabilities.
2. MAINTENANCE AND SUPPORT TERM AND TERMINATION
2.1 Maintenance and Support Term. Licensor will provide to Licensee maintenance and support for the LogiGear TestArchitecht Software pursuant to the following schedule:
(a) For the first twelve (12) months after signing the Agreement, Maintenance and Support will be provided pursuant to the terms and conditions of this Schedule with no additional charge to Licensee (the “Initial Maintenance and Support Term”).
(b) If Licensee desires Maintenance and Support after the Initial Term, Licensee may purchase subsequent terms (each, a “Subsequent Maintenance and Support Term”) pursuant to the terms and conditions set forth in this Schedule, and subject to an increase (if any) in the Maintenance and Support Fees as set forth in this Maintenance and Support Schedule.To purchase a first Subsequent Maintenance and Support Term after the Initial Term, Licensee must provide Licensor written notice of its intent to purchase the first Subsequent Maintenance and Support Term at least sixty (60) days prior to the expiration of the Initial Maintenance and Support Term.
(c) Once a Subsequent Maintenance and Support Term has been purchased, this agreement shall run for a period of one (1) year from the start date of such Subsequent Maintenance and Support Term, and shall automatically renew for successive for consecutive one (1) year periods for the applicable Maintenance and Support Fee (as hereinafter defined). Subsequent Maintenance and Support Term Fees are subject to increases pursuant to Section 5.3 below.
2.2 Expansion Orders: Any purchases of additional Software Licenses will be co-terminus with the original License Order. Any purchase of Maintenance and Support Services for such licenses shall commence twelve (12) months after the effective date of the additional Software purchase, and shall be co-terminus with the original License Order.
2.3 Reinstatement of Maintenance and SupportServices. Subsequent to any termination or expiration of any Maintenance and Support Services, Licensee may, at its option and so long as Licensor still offers services similar to the Maintenance and Support Services, reinstate any terminated Maintenance and Support Services by providing written notice to Licensor and making payment to Licensor of one hundred percent (100%) of the Maintenance and Support Fees that would have been payable hereunder for Maintenance and Support Services for the period during which such Maintenance and Support Services lapsed.
2.4 Either party may terminate this Schedule or any addenda heretoif the other party materially breaches its obligations hereunder and fails to cure such breach within thirty (30) days of the non-breaching party’s written notice thereof. Licensor may terminate this Schedule or any addendum or table hereto upon the occurrence of any event that would permit Licensor to terminate the Agreement or any other agreement between Licensor and Licensee. In the event of termination or expiration of this Schedule, including any addendum or table incorporated herein, all fees or charges then due and payable, or to become due and payable in the future based upon services already rendered, shall be immediately due and payable to Licensor, and Licensee’s obligations to pay such amounts shall survive such termination or expiration.
3. MAINTENANCE SERVICES
In consideration of, and conditioned upon, Licensee paying the Maintenance and Support Fees, Licensor shall provide Licensee all new releases, updates, documentation updates, and patches as they become available for products licensed under this Agreement.Licensor shall deliver all new releases, updates, documentation, and patches to Licensee in electronic form, and will not provide any tangible media or documentation to Licensee.
4. SUPPORT SERVICES
The Support Services listed below apply only to the LogiGear TestArchitect product for which they are purchased (“Software”) and do not apply to any other application, library, product, or service developed or sold by LogiGear or LogiGear’s resellers. The support, if any, for any other such product will be governed by a separate agreement. All features listed below are available only for the TestArchitect Support Term (as hereinafter defined), and the Services will become unavailable immediately upon termination of this Agreement.
4.1 All Maintenance and Support Services include the following self-help resources:
- Online documentation, including API references, tutorials, and best practices;
- Video tutorials;
- Knowledge Base; and
- Public support forums.
4.2 Standard Support: In Standard Support service, LogiGear provides the following product support by email only.
4.3 PremiumSupport Service. The Following Premium Support service can be purchased as a complete package for an additional fee:
- Phone call, email, web meeting, and online support ticketing system are available.
- Assistance with issues during installation and upgrades.
- Guidance around implementation and configuration.
- Assistance with troubleshooting test script when a bug in TestArchitect is believed to be the cause of reported incident. In this case, sample test script that can consistently demonstrate the problem and can be replicated must be provided.
- Product hotfix may be provided at request to unblock showstopper issues.
Note that the Premium Support Service can only be purchased as a package, and not as individual line items. Premium Support does not include:
- Product training and consulting.
- Troubleshooting for tickets that are not believed to be caused byTestArchitect defects or troubleshooting for tests that take more than 60 minutes to execute to find TestArchitect issues. In this case, customer is advised to follow troubleshooting instructions provided by support personnel to isolate and identify the root cause.
- System and test script performance tuning.
- Questions about how to setup and use third party applications.
- Product customizations.
For support needs that are not included in the Standard Support, Licensee can request fromLogiGear representative a list of a la carte support offerings. LogiGear’s expert staff can help enable your success with best practices coaching, implementation consulting, long test runs troubleshooting, or even small product customizations.
5. MAINTENANCE AND SUPPORT FEES
In consideration of all Maintenance and Support Services provided to Licensee, Licensee shall pay Licensor the following Fees (the “Maintenance and Support Fees”):
5.1 Subsequent Maintenance and Support Term. Licensee shall pay to Licensor the annual Maintenance and Support Fees.
5.2 All fees under this Agreement exclude all applicable sales, use, and other taxes and government charges, whether federal, state or foreign, and Licensee shall be responsible for payment of all such taxes (other than taxes based on Service Provider’s income), fees, duties, and charges, and any related penalties and interest, arising from the payment of any and all fees under this Agreement including the access to or license of any software, and the performance of Services hereunder. Licensee will be responsible for paying or reimbursing Licensor for any applicable taxes later assessed by any state, local, or other governmental agency. Licensor will separately itemize any applicable taxes or duties on each invoice.
5.3 Maintenance and Support Fee increase shall not exceed the percentage change in the Consumer Price Index for All Urban Consumers for the previous twelve (12) months, as published by the United States Department of Labor.
