License Agreement

AGENARISK SOFTWARE – SOFTWARE LICENSE AGREEMENT

 

IMPORTANT: PLEASE READ THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT CAREFULLY BEFORE USING AGENARISK (“SOFTWARE”).

 

BY INSTALLING OR USING THE LICENSED SOFTWARE FROM AGENA LIMITED (“AGENA”), THE INDIVIDUAL IF ACTING ON BEHALF OF HIMSELF OR HERSELF (“INDIVIDUAL CUSTOMER”) OR THE INDIVIDUAL WHO IS ACTING ON BEHALF OF A COMPANY, EDUCATIONAL OR NONPROFIT INSTITUTION, GOVERNMENTAL AGENCY, OR OTHER LEGAL ENTITY (“ENTITY CUSTOMER”, THE INDIVIDUAL CUSTOMER AND ENTITY CUSTOMER TOGETHER ARE “CUSTOMER”) IS AGREEING TO BE BOUND BY THIS SOFTWARE LICENSE AGREEMENT (“AGREEMENT”).

 

THIS IS A LEGAL AND ENFORCEABLE CONTRACT AND BY CLICKING THE “ACCEPT” OR “YES” BUTTON OR OTHERWISE INDICATING ASSENT ELECTRONCIALLY, OR LOADING THE SOFTWARE, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.

 

THE “EFFECTIVE DATE” FOR THIS AGREEMENT IS THE DAY THE CUSTOMER RECEIVES THE “ACTIVATION KEY” FROM AGENA.

 

IF CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, CUSTOMER MAY NOT INSTALL, COPY, OR USE THE LICENSED SOFTWARE.

 

1. Definitions

 

  • “Activation Key” means a set of unique characters for a specific copy of the Licensed Software issued by Agena to Customer.

  • “Agena Website” means www.agenarisk.com including any subdomains if applicable.

  • “Authorised User” means an employee, registered student, or agent of Entity Customer authorised by Entity Customer to use the Licensed Software. Entity Customer is responsible for maintaining a list of Authorised Users and agrees to disclose to Agena the list of Authorised Users within three working days of Agena requesting the list.

  • “Concurrent Authorised User Sessions means Authorised Users who use the software at the same time in accordance with the terms of this Agreement.

  • “Documentation” means the user manuals and supporting documentation in electronic form provided with the Licensed Software under this Agreement.

  • “Floating License” means the Software can be installed on any Customer machine and used by any number of Concurrent Authorised User Sessions up to a specified limit.

  • “License Fee” means the applicable fee for the Licensed Software.

  • “License Period” means a specific fixed term as set forth in the License and Activation Key.

  • “Licensed Software” means the specific software licensed to Customer under the terms of this Agreement (as specified in the License and Activation Key issued to Customer), including any Updates and Upgrades thereto.

  • “Server Address and Port Number” means a unique Agena internet accessible server address and port allocated to Entity Customer to allow use of a Floating License.

  • “Subscription License” means a time-limited license to use the Licensed Software that expires at the end of the License Period.

  • “SUSM” means a Single User Single Machine, where the Licensed Software can be installed on a single Customer machine and used by a single named Individual Customer / Authorised User only.

  • “Update” means a revision to the Licensed Software or patch that improves the functionality of the Licensed Software, and may contain new features or enhancements, which is not an Upgrade.

  • “Upgrade” means a subsequent version of the Licensed Software that Agena designates as a new release and makes generally commercially available.

 

2. License and Activation Key, License Grants, and Ownership

 

2.1 License and Activation Key

 

Agena shall issue Customer a License via email that sets forth the specific Licensed Software, the Activation Key associated with the Licensed Software or, Server Address and Port Number together with the specific number of Concurrent Authorised User Sessions for Entity Customers. The License and Activation Key associated with the Licensed Software or, Server Address and Port Number is hereby incorporated by reference into this Agreement. Certain of the licenses in Section 2.2(c), Section 2.2(d) and Section 2.2(e) permit use by Authorised Users of Entity Customer and the Entity Customer is responsible for compliance of all such Authorised Users with the Agreement and shall be liable for the breach of the terms of this Agreement by such Authorised Users.

 

2.2 Licenses

 

(a) SUSM Desktop License Grant. This Section 2.2 (a) applies only to a Customer whose License and Activation Key issued by Agena specifies the “License Type” as “SUSM Desktop”. Subject to the terms and conditions of this Agreement, Agena grants to Customer a non-assignable, non-transferable license, without the right to sublicense, to use the Licensed Software, in desktop application form only, solely for Customer’s internal business, research, or educational purposes, and solely by the Individual Customer / Authorised User, for the duration of the License Period as identified on the Agena Sales Invoice. Entity Customer may, after written notice to Agena, transfer the Software on a permanent basis to another Authorised User within the same legal entity providing that the original named Authorised User ceases to use the Software and the transferee agrees to the terms of this Agreement.

 

(b) SUSM Developer License Grant. This Section 2.2 (b) applies only to a Customer whose License and Activation Key issued by Agena specifies the “License Type” as “SUSM Developer”. Subject to the terms and conditions of this Agreement, Agena grants to Customer a non-assignable, non-transferable license, without the right to sublicense, to use the Licensed Software, in object-code form only, solely for Customer’s internal business, research, or educational purposes, and solely by the Individual Customer / Authorised User, for the duration of the License Period as identified on the Agena Sales Invoice. A SUSM Developer license is not licensed for use on a server or web-based configuration unless covered by a separate agreement with Agena. Nor is the SUSM Developer license to be used to distribute or grant remote access to runtime copies of the Software unless covered by a separate agreement with Agena. Entity Customer may, after written notice to Agena, transfer the Software on a permanent basis to another Authorised User providing that the original named Authorised User ceases to use the Software and the transferee agrees to the terms of this Agreement.

 

(c) Desktop Floating License Grant. This Section 2.2 (c) applies only to a Customer whose License issued by Agena specifies the “License Type” as “Desktop Floating”. Subject to the terms and conditions of this Agreement, Agena grants to Customer a non-assignable, non-transferable license, without the right to sublicense, to use the Licensed Software, in desktop application form only, solely for Customer’s internal business, research, or educational purposes, and solely by the Customer, for the duration of the License Period as identified on the Agena Sales Invoice. Customer is authorised by Agena to install and use one copy of the Licensed Software on more than one machine, providing that the number of Concurrent Authorised User Sessions does not exceed the limits set out in the License and Activation Key. For a Desktop Floating license, each Authorised User is required to maintain a connection to the Internet in order that the License can be automatically and continually verified by the Agena server.

 

(d) Developer Floating License Grant. This Section 2.2 (d) applies only to a Customer whose License issued by Agena specifies the “License Type” as “Developer Floating”. Subject to the terms and conditions of this Agreement, Agena grants to Customer a non-assignable, non-transferable license, without the right to sublicense, to use the Licensed Software, in object-code form only, solely for Customer’s internal business, research, or educational purposes, and solely by the Individual Customer, for the duration of the License Period as identified on the Agena Sales Invoice. Customer is authorised by Agena to install and use one copy of the Licensed Software on more than one machine, providing that the number of Concurrent Authorised User Sessions does not exceed the limits set out in the License and Activation Key. A Developer Floating license is not licensed for use on a server or web-based configuration unless covered by a separate agreement with Agena. Nor is the Developer Floating License to be used to distribute or grant remote access to runtime copies of the Software unless covered by a separate agreement with Agena. For a Developer Floating license, each Authorised User is required to maintain a connection to the Internet in order that the License can be automatically and continually verified by Agena Server.

 

(e) Academic License Grant. This Section 2.2 (e) applies only to a Customer who has purchased the Licensed Software (SUSM Desktop, SUSM Developer, Desktop Floating, and Developer Floating) on the discounted terms of Agena’s Educational Policy published on the Agena Website (the “Educational Policy”) and whose License issued by Agena specifies the “License Type” as “Academic License”. Customer warrants and represents to Agena as a condition of the Academic License that: (i) (if Customer is a natural person) he or she is either a part-time / full-time student, or a teacher / professor / research assistant at an accredited higher educational institution ("AHEI”) at the time of purchase and will not use the Software for any commercial, professional or for-profit purposes; (ii) (if Customer is not a natural person) it is an AHEI  that will not use the Software for any commercial, professional or for-profit purposes; and, (iii) Customer will at all times comply with the Educational Policy (as such policy may be amended from time to time). For the avoidance of doubt the Terms and Conditions of this section are in addition to the Terms and Conditions of the relevant License Software purchased as set out in Sections 2.2(a) to 2.2(d).

 

(e) Trial License Grant. This Section 2.2 (e) applies only to a Customer whose License issued by Agena specifies the “License Type” as “Trial License”. Subject to the terms and conditions of this Agreement, Agena grants to Customer a non-assignable, non-transferable license, without the right to sublicense, to use the Licensed Software, in object-code form only, solely for the duration of the Trial License Period. If the Software is identified as Trial Software Customer is not entitled to any support from Agena including Technical Support, Updates and Upgrades. Nor does Agena offer any warranties relating to the Software.

 

2.3 Documentation License

 

Subject to the terms and conditions of this Agreement, Agena grants to Customer a non-assignable, non-transferable license, without the right to sublicense, to use the Documentation in connection with Customer’s authorised use of the Licensed Software. Customer may not reproduce or distribute the Documentation in any manner, whether physically or electronically, without the express written permission of Agena. Entity Customer may make the Documentation available on any private network administered by the Entity Customer.

 

2.4 Activation Keys and Licenses

 

For SUSM licenses Agena shall issue to Customer a License and Activation Key for each copy of the Licensed Software purchased. Customer is entirely responsible for any and all activities that occur under Customer's account and all charges incurred from use of the copy of the Licensed Software assigned by Activation Key to Customer. The Licensed Software shall be deemed accepted upon the delivery of the Activation Key to Customer by Agena.

 

For Desktop Floating and Developer Floating license types, Agena shall issue to Customer a Server Address and Port Number that each copy of the Licensed Software installed on any Customer machine must access for Agena to verify the license is valid. Customer is entirely responsible for any and all activities that occur under Customer's account and all charges incurred from use of the copy of the Licensed Software assigned by Server Address and Port Number to Customer. The Licensed Software shall be deemed accepted upon the delivery of the Server Address and Port Number to Customer by Agena.

 

2.5 Restrictions

 

Customer shall not, nor permit any person (including any Authorised User) to: (i) reverse engineer, reverse compile, decrypt, disassemble, or otherwise attempt to derive the source code of the Licensed Software (except to the extent that this restriction is expressly prohibited by law); (ii) modify, translate, or create derivative works of the Licensed Software; (iii) sublicense, resell, rent, lease, distribute, market, commercialise, or otherwise transfer rights or usage to the Licensed Software (except as expressly permitted under this Agreement); (iv) remove, modify, or obscure any copyright notices or other proprietary notices or legends appearing on or in the Licensed Software, or any portion thereof; (v) transfer, use, or export the Licensed Software in violation of any applicable laws, rules, or regulations of any government or governmental agency; or (vi) embed the Licensed Software in any third-party applications, unless otherwise authorised in writing in advance by an officer of Agena.

 

2.6 Ownership

 

The Licensed Software and Documentation contain copyrighted material and other proprietary material and information of Agena and/or its licensors. Agena and/or its licensors shall retain all right, title, and interest, including all intellectual property rights, in and to the Licensed Software and Documentation. Customer will not remove, alter, or destroy any form of copyright notice, proprietary markings, or confidential legends placed upon or contained within the Licensed Software or documentation, or any component thereof.

 

3. Technical Support, Updates and Upgrades

 

3.1 Technical Support

 

Customer will receive free Technical Support via email during the License Period. Technical support is provided to Customer for Software installation, resolving Software errors and assisting with Software operation. Technical Support covers an unlimited number of incidents during the License Period and Agena guarantees three working days technical support response time. Technical support is not for building Bayesian models from scratch, model de-bugging, or AgenaRisk training. These services may be obtained separately from Agena.

 

3.2 Updates

 

If applicable, Customer will also receive free Software maintenance updates including bug fixes or minor product enhancements during the License Period.

 

3.3 Upgrades

 

If applicable, Customer will also receive free automatic full version upgrades during the License Period. Any new major releases of the Software will be available at no charge during the License Period.

 

FOR THE AVOIDANCE OF DOUBT IF YOU FAIL TO RENEW YOUR SUBSCRIPTION LICENSE, YOU WILL NO LONGER BE ABLE TO ACCESS THE SOFTWARE AND RECEIVE ANY OF THE BENEFITS HEREIN FOLLOWING ITS EXPIRY.

 

4. Limited Warranty

 

Agena warrants that the media on which the Software is distributed will be free from defects for a period of thirty (30) days from the date of delivery of the Software to you. Your sole remedy in the event of a breach of this warranty will be that Agena will, at its option, replace any defective media returned to Agena within the warranty period or refund the money you paid for the Software. Agena does not warrant that the Software will meet your requirements or that operation of the Software will be uninterrupted or that the Software will be error-free.

 

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ABOVE WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESSED OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS.

 

5. Disclaimer of Damages

 

SOME COUNTRIES, INCLUDING MEMBER COUNTRIES OF THE EUROPEAN UNION DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE BELOW LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

 

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL AGENA OR ITS LICENSORS BE LIABLE TO YOU FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT OR SIMILAR DAMAGES, INCLUDING ANY LOST PROFITS OR LOST DATA ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE EVEN IF

AGENA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

IN NO CASE SHALL AGENA’S OR ITS LICENSORS’ LIABILITY EXCEED THE PURCHASE PRICE FOR THE SOFTWARE.

 

The disclaimers and limitations set forth above will apply regardless of whether you accept the Software.

 

6. Term and Termination

 

6.1 Term

 

This Agreement will commence on the Effective Date and shall continue until the earlier to occur of the expiration of the License Period or the termination of this Agreement as set forth below. In the case of additional Concurrent Authorised User Sessions which are authorised and added after the initial License Fee payment, the term of their usage of the Licensed Software shall be coterminous with the pre-existing then-current term.

 

6.2 Termination

 

Agena may terminate this Agreement immediately without notice if Customer breaches any term of this Agreement, including, without limitation, breaching the scope of the license granted.

 

6.3 Effect of Expiration or Termination

 

Upon expiration or termination of this Agreement, (i) the rights and licenses granted to Customer pursuant to this Agreement shall automatically and immediately terminate and (ii) Customer shall immediately cease using the Licensed Software. In addition, upon expiration of the License Period, the Activation Key will expire and the Licensed Software will cease to function. Sections 2.5, 2.6, 4, 5, 6.3 and 7 of this Agreement shall survive any expiration or termination of this Agreement.

 

7. General

 

The laws of England and Wales will govern this Agreement. The Agreement is the entire agreement between Customer and Agena relating to the Software and (i) supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to its subject matter, and (ii) prevails over any conflicting or additional terms of any quote, order, acknowledgement or similar communications between the parties.

 

This Agreement may only be modified by written document that has been signed by both Customer and Agena.

 

Should you have any questions concerning this Agreement or if you desire to contact Agena please write to: Agena Limited 11 Main Street Caldecote Cambridge CB23 7NU United Kingdom.

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