ULTIMUS ADVANCE TASK SERVICE WITH ULTIMUS DPA PORTAL END USER LICENSE AGREEMENT
This End‑User License Agreement ("Agreement") is made and entered into between Ultimus, Inc. ("Ultimus," "We," "Our," or "Us") and the individual or entity end-user ("End User," "You," or "Your") who purchased Ultimus Advanced Task Service (UATS) with Ultimus Digital Process Automation Portal (“Ultimus DPA Portal” or the "Software") and whose name is contained in the License Key and displayed by the Software. YOUR WILLINGNESS TO BE BOUND BY THIS AGREEMENT WILL BE SIGNIFIED BY INSTALLING THE SOFTWARE, so read the terms of this Agreement carefully before installation.
1. NOTICE. PLEASE READ THIS AGREEMENT CAREFULLY. WE ARE WILLING TO LICENSE THE SOFTWARE TO YOU ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS AGREEMENT. YOU ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT BY CLICKING THE ICON LABELED "I ACCEPT" THAT IS DISPLAYED BELOW. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, THEN WE ARE UNWILLING TO LICENSE THE SOFTWARE TO YOU, IN WHICH EVENT YOU SHOULD CLICK THE ICON LABELED "I DECLINE," AND THE SOFTWARE WILL NOT BE INSTALLED. IF YOU DECLINE THIS LICENSE AGREEMENT, YOU MAY RETURN THE UNUSED SOFTWARE WITHIN SEVEN DAYS OF THE DATE OF PURCHASE TO THE PLACE YOU OBTAINED IT FOR A REFUND OF THE AMOUNT YOU PAID FOR THE SOFTWARE.
2. Ownership and License. This is a license agreement and NOT an agreement for sale. We (or Our licensors) continue to own the copy of the computer programs, documentation, data, and other content transmitted to You, and all other copies that You are authorized to make, regardless of the form or media on or in which the original or any copy may exist (the “Software”). Ultimus (or its licensors) retains title, ownership rights, and intellectual property rights in and to the Software. You are hereby granted a non-exclusive, non-transferable, non-sub-licensable license to use the Software in accordance with the terms of this Agreement, and We retain all rights not expressly granted to You in this Agreement. You agree to abide by the copyright law and all other applicable laws of the United States including, but not limited to, export control laws. Nothing in this Agreement constitutes a waiver of Our rights under U.S. or international copyright law or any other federal or state law. You acknowledge that the Software may include features that ensure that Your use of the Software complies with the terms of this Agreement.
The Software includes the following modules that together constitute the Ultimus Advanced Task Service with Ultimus DPA Portal:
· Ultimus Advanced Task Service ("UATS")
· Ultimus Digital Process Automation Portal ("Ultimus DPA Portal")
· Ultimus Advanced Task Service Administrator ("UATS Administrator")
· Ultimus Digital Process Automation Dashboard ("Ultimus DPA Dashboard")
· Ultimus Advanced Task Service API (“UATS.API”)
3. Limited Use License. You are granted the following rights to the Software:
a. Right to Install and Use. You may install and use the Software based on the license key supplied to You. If the Software is installed or used other than as specified in the license key, You must acquire a license for each additional installation or usage. The Software is "installed" on a computer when it is placed on a computer’s or virtual computer’s hard disk, CD-ROM, or other storage device or similar arrangement. The Software is "in use" on a computer when it is executed or loaded into the physical or virtual computer’s RAM or other primary memory.
b. End User Ultimus DPA Portal Usage. The number of individual end users who may utilize the DPA Portal in connection with an Ultimus BPM Server is governed by the Ultimus Digital Process Automation Suite End User License Agreement of the respective Ultimus BPM Server.
c. UATS License. UATS can be licensed in several ways, the terms of which are specified below:
· "UATS L0" is licensed without additional consideration to valid licensees of Ultimus Digital Process Automation Suite, provided that UATS:
o is used in connection with only one Ultimus BPM Server version 2019 or later;
o is installed and/or operated on the same physical or virtual server on which the Ultimus BPM Server version 2019 or later is installed and/or operated;
o is not used with 3rd party task servers;
o does not use Aliases for 3rd party data integration;
o is not configured to allow the addition of User-Roles; and
o is not used in a Network Load Balanced ("NLB") environment.
· "UATS Enterprise M1" License permits usage of the Software, for a period that shall not exceed six months from the time You acquired the License from Us, with one Ultimus BPM Server version 7.3 and one Ultimus BPM Server version 2019 or later, provided that UATS:
o does not use Aliases for 3rd party data integration; and
o is not used in a Network Load Balanced ("NLB") environment.
· "UATS Enterprise L1" License permits usage of the Software with one Ultimus BPM Server version 2019 or later provided that UATS:
o does not use Aliases for 3rd party data integration; and
o is not used in a Network Load Balanced ("NLB") environment.
· "UATS Enterprise L2" License permits usage of the Software in connection with a total of up to three installed instances of Ultimus BPM Server 7.3 and/or Ultimus BPM Server version 2019 or later and/or one 3rd party task server.
· "UATS Enterprise L3" License permits usage of the Software in connection with a total of up to ten installed instances of Ultimus BPM Server 7.3 and/or Ultimus BPM Server version 2019 or later and/or up to five 3rd party task servers.
d. Right to Copy. You may copy, install, and operate the Software for development, testing, back-up and archival purposes, provided that the installation and usage of the Software in production does not exceed that allowed in the "Right to Install and Use" section above and the other terms of Your UATS License option and provided further that all copies of the Software are kept in Your possession and that You include and not alter or remove any copyright, patent, trade secret, proprietary and/or other legal notices contained on or in the Software. All copies or partial copies of the Software, whether in printed, machine-readable or other form, shall be considered part of the Software and shall be subject to this Agreement.
e. Third Party Hosting. You may operate the Software at a third party co-location facility, provided: (i) You notify Us of the address and name of the entity operating the co-location facility ("Hosting Entity"), (ii) the Hosting Entity enters into a written agreement in which the Hosting Entity agrees: (a) to store and/or load the Software only on computers and media that are reasonably secure from unauthorized access, (b) only to operate the Software to make it available to You over the Internet or other transmission medium and not for any other purpose, and (c) not to attempt to reverse engineer, disassemble, decompile or otherwise attempt to derive the source code from the Software.
4. Prohibited Uses. You may not, without written permission from Ultimus:
a. Use, copy, modify, merge, or transfer copies of the Software (of the Software license key) except as expressly authorized in this Agreement;
b. Use any back-up or archival copies of the Software (or allow someone else to use such copies) for any purpose other than to replace an original copy if it is destroyed or becomes defective;
c. Disassemble, decompile, "unlock," reverse engineer, or in any manner decode the Software for any reason, except as expressly permitted by rules of law without the possibility of contractual waiver;
d. Deliver or otherwise make the Software available to anyone other than You or the authorized members of Your entity and only for the authorized users of the Software;
e. Sublicense, lease, rent, lend or transfer the Software, create "links" to the Software or "frame" or "mirror" any part of the Software on any other server or Internet-based device, operate the Software on a service bureau basis, or allow, assist or permit any third party to do any of the foregoing.
5. LIMITED WARRANTY.
a. Limited Warranty. We warrant that, for ninety (90) days from the date You acquired the Software from Us or Our authorized dealer (1) the Software, unmodified by You, will perform substantially in accordance with the user documentation accompanying the Software, so long as all releases, enhancements, and corrections that have been made available by Ultimus have been implemented by You and (2) the media on which the Software is provided to and stored by You will be free from defects in materials and workmanship under normal use and service. Notwithstanding the foregoing, no warranty shall apply to unlicensed Software, Software used in violation of this agreement, or Software that is designated as "limited release" or "pre-release" or otherwise as not being subject to warranty.
b. Exclusive Remedies. Our entire liability and Your sole and exclusive remedy for breach of the foregoing Warranty shall be, at Our option, to either (1) return to You the consideration Ultimus actually received in connection with the License fee You paid or (2) repair or replace the Software or media that does not meet the foregoing limited warranty, provided it is returned to Us with a copy of Your receipt. This limited warranty is void if failure of the Software is caused by accident, abuse, or violation of this Agreement. Any replacement Software will be warranted as above for the remainder of the original warranty period, or thirty (30) days from the date We ship it to You, whichever is longer.
c. WARRANTY DISCLAIMER. WE DO NOT WARRANT THAT THIS SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT IT’S OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE EXTENT ALLOWED BY LAW, EXCEPT AS STATED ABOVE, WE DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, STATUTORY OR OTHERWISE, INCLUDING ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.
This limited warranty gives You specific legal rights and You may also have other legal rights depending upon Your jurisdiction. Warranty inquiries should be directed to: Ultimus Inc., 136 Madison Ave. 6th Floor, New York, NY, USA 10016.
6. LIMITATION OF LIABILITY. OUR LIABILITY AND ANY ULTIMUS LICENSORS’ LIABILITY TO YOU FOR ANY LOSSES SHALL BE LIMITED TO DIRECT DAMAGES. OUR LIABILITY FOR SUCH DAMAGES IS LIMITED TO AND SHALL NOT EXCEED THE CONSIDERATION WE ACTUALLY RECEIVED IN CONNECTION WITH THE LICENSE FEE YOU PAID. IF THE SOFTWARE WAS ACQUIRED THROUGH AN ULTIMUS LICENSOR, ANY DAMAGES IN EXCESS OF THE AMOUNT WE ACTUALLY RECEIVED IN CONNECTION WITH THE LICENSE FEE YOU PAID ARE THE RESPONSIBILITY OF THE ULTIMUS LICENSOR AND, IN ANY EVENT, ARE LIMITED TO THE TOTAL CONSIDERATION PAID FOR THE LICENSE. IN NO EVENT WILL WE OR OUR LICENSORS BE LIABLE TO YOU FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS, REVENUES, DATA OR BUSINESS OPPORTUNITIES), REGARDLESS OF THE CAUSE OF ACTION (INCLUDING NEGLIGENCE) AND REGARDLESS OF WHETHER WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7. United States Government Restricted Rights. This section applies to all acquisitions of the Software by or for the United States federal government ("Government") and its agencies ("Government Agencies").
By accepting delivery of the Software, the Government hereby agrees that the Software qualifies as "commercial" computer software as that term is used in the acquisition regulations applicable to this procurement and that the Government’s use and disclosure of the Software is controlled by the terms and conditions of this Agreement to the maximum extent possible. This Agreement supersedes any contrary terms or conditions in any statement of work, contract, or other documents that are not required by statute or regulation. If any provision of this Agreement is unacceptable to the Government, You must so notify Ultimus in writing at Ultimus Inc., 136 Madison Ave. 6th Floor, New York, NY, USA 10016. If any provision of this Agreement violates applicable federal law or does not meet the government’s actual, minimum needs, the Government agrees to return the unused Software for a full refund of the consideration Ultimus actually received in connection with the License fee You paid.
The Software is provided to the Government or Government Agencies with "Restricted Rights" applicable to private and public licenses alike. Use, duplication, or disclosure by the Government or any of its agencies or instrumentalities is subject to the restrictions as set forth in this Agreement and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995); DFARS 252.227-7013 (c)(1)(ii)(OCT 1988), FAR 12.212(a)(1995), FAR 52.227-19, or FAR 52.227-14, as applicable. Manufacturer is Ultimus Inc., 136 Madison Ave. 6th Floor, New York, NY, USA 10016.
8. Renewal of Annual Maintenance Program for UATS. By accepting this Agreement, You also agree to purchase the Annual Maintenance Program for UATS ("UATS AMP") at an additional cost to the purchase price of the Software for as long as You utilize the Software. This requirement shall not apply if You are an UATS L0 licensee.
Software maintenance shall be subject to the terms and conditions of the UATS AMP Agreement effective on the date of Your purchase of the UATS AMP, and thereafter, to the terms and conditions then in effect on the date of any renewal thereof. Invoices for any renewal of AMP are due and payable by You within thirty (30) days after the date of the invoice. In the event You do not pay such invoice for renewal AMP in a timely manner, You may be subject to an additional reinstatement fee.
9. Termination. This Agreement is effective until terminated by Ultimus. You may terminate this agreement at any time by destroying all copies of the Software in Your possession or by returning all such copies to Us. This Agreement, and Your rights to use the Software, automatically terminate if You fail to comply with any provision of this Agreement. Your license to use this Software also terminates if You transfer or otherwise convey the Software to someone else. Upon any termination, You must stop all use of the Software and You must destroy all copies that remain in Your possession. All restrictions on Your rights to use the Software will end upon expiration of the copyright to the Software.
10. Miscellaneous Provisions.
a. Governing Language; Jurisdiction. The governing language of this Agreement and the Software is English. This Agreement will be governed by and construed according to the substantive laws of the State of Delaware, United States of America, without regard to any choice of law provisions thereof, and not by the United Nations Convention on Contracts for the International Sale of Goods, or the law of any other jurisdiction. You submit to jurisdiction and venue in the state and federal courts located in the State of Delaware. Nothing in this paragraph shall prevent either party from seeking equitable relief such as an injunction in such jurisdiction as may be appropriate.
b. Entire Agreement; Waiver. This is the entire agreement between Ultimus, and the End User relating to the license and use of the Software and supersedes any prior purchase order, communication, advertising, or other representation of any kind concerning the Software. No change or modification of this Agreement will be valid unless it is in writing and is signed by Us. Any waiver by Us of a breach or default under any provision of this Agreement or any failure to exercise a right under this Agreement shall not operate or be construed as a continuing waiver or a waiver of any subsequent breach or default. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision hereof.
c. Severability. If any provision of this Agreement or the application thereof to any party or circumstance shall be declared void, illegal, and/or unenforceable, the remainder of this Agreement shall be valid and enforceable to the extent permitted by applicable law.
d. Equitable Relief. The remedies contained herein are cumulative and in addition to any other remedies at law or equity. You acknowledge that a breach by You of this Agreement would constitute irreparable harm to Us for which a remedy at law would be inadequate, and therefore consent to being enjoined from any such breach without requiring Ultimus to post bond. You further agree that, in the event such equitable relief is granted in the United States, You will not object to courts in other jurisdictions granting provisional remedies enforcing such United States judgments.
e. Export Compliance. You agree and certify that neither the Software, nor any other technical data received from Us, nor the direct product thereof, will be exported or re-exported outside the United States except as authorized and as permitted by the laws and regulations of the United States.
f. Non-critical Application. The Software is provided to You for standard commercial uses and is not intended to be sold or licensed for use in critical safety systems or nuclear facilities.
g. Confidentiality. The terms and conditions of this Agreement shall be held as confidential by both parties hereto, provided, however, that We may cite that You are a user of the Software.
11. Canadian Transactions: If You acquired this Software in Canada, You agree to the following:
The parties hereto have expressly required that the present Agreement and its Exhibits be drawn up in the English language. / Les parties aux présentes ont expressément exige que la présente convention et ses Annexes soient rédigées en langue anglaise.
If You have any questions about this Agreement, You may contact Us in writing at Ultimus Inc., 136 Madison Ave. 6th Floor, New York, NY, USA 10016, or call Us at 919-678-0900.