VIRTUALAZE™ Unify and UnifyPlus END USER LICENSE AGREEMENT (EULA)
IMPORTANT-PLEASE READ CAREFULLY: BY DOWNLOADING, INSTALLING, OR USING THE SOFTWARE, YOU (THE INDIVIDUAL OR LEGAL ENTITY) AGREE TO BE BOUND BY AND ACCEPT THE TERMS OF THIS END USER LICENSE AGREEMENT ("EULA") FOR LICENSED SOFTWARE FROM VIRTUALAZE (“VIRTUALAZE”). IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU MUST NOT DOWNLOAD, INSTALL, COPY, OR USE THE SOFTWARE, AND YOU MUST DELETE OR RETURN THE UNUSED SOFTWARE TO VIRTUALAZE OR THE COMPANY THAT SUPPLIED IT TO YOU WITHIN THIRTY (30) DAYS AND REQUEST A REFUND OF THE LICENSE FEE, IF ANY, THAT YOU PAID FOR THE SOFTWARE.
THE EFFECTIVE DATE OF THIS EULA IS THE DAY YOU FIRST DOWNLOAD, INSTALL OR USE THE SOFTWARE.1. DEFINITIONS
Capitalized terms, not otherwise defined in the EULA, shall have the meaning set forth in this Section 1.
1.1 Application Server, Application Launcher and Deployment Center means the object code version of the software developed by Virtualaze Server Software residing on your Server computer and the Application Launcher residing on your client computer and used by you to access remotely thru the Deployment Center to your virtualized applications.
1.2 Integrated Products UnifyPlus Release means the bundles consisting of Your Products and the HTML5 Gateway and its HTML5 Application Launcher implementation.
Web-Gateway means the server side component of Virtualaze UnifyPlus Release, which is a WebSocket and WebServer.
Concurrent Web-/Cloud Gateway instances means running RDSH-/VDI instances at the Gateway.
Concurrent gateway instances means running Gateway instances at same or different locations.
1.3 Authorized Reseller means an authorized distributor, reseller or dealer of the Software.
1.4 Authorized User(s) means you, or your employees or an individual independent contractor authorized by you to use the Software pursuant to the terms of this EULA. An authorized user means an individual person, and is not a corporation, company, partnership or association or other entity or organization.
1.5 Virtualazed means the process of converting a personal computer software application into a proprietary virtualized format which format allows it to become deliverable from a server to a client device running the Application Launcher, on demand and with optional license control.
1.6 Remote Application Protocol (RAP) Software means the proprietary protocols and technologies developed by Virtualaze which allow virtualized applications to be delivered remotely to a client device on demand.
1.7 Documentation means, collectively, any user guides, reference manuals, installation materials, release notes and other supporting material relating to the Software as are currently maintained by Virtualaze and provided to its licensees, in online, electronic or written form.
1.8 License and Subscription Fee means the applicable subscription fee, if any, for which you license the Software for a predefined product and time frame.
1.9 Open Source Software means various software components including open source software, which may be part of the Software, each licensed to you under its own applicable license terms and conditions, which can be found in the Documentation.
1.10 Permitted Use means uses for your internal business, educational or research purposes and operations, and in non-hazardous environments and environments that do not require fail-safe controls, thus excluding for example only, uses for navigation, power facilities, communications, hospital or life support systems.
1.11 Software means Application Launcher, Application Virtualization Server, Remote Application Protocols and Application Management Software as well as any other software products, in object code only, that are licensed to you under this EULA, including, but not limited to, the Software license key and any related software components purchased or provided with the Software or Documentation, and any Virtualaze-authorized updates, replacements or modifications thereto.
1.12 Software Subscription License Key means a unique series of data elements which enables you to access and use the version of the Software licensed to you.
1.13 Third Party Software means certain software supplied by third parties that Virtualaze or an authorized reseller or partner provides access to as part of or through the use of the Software.
2. BETA, EVALUATION/TRIAL AND PARTNER DEMO/TEST LICENSES
2.1 General. If available, the Software may be activated with no-cost evaluation Software license key(s). You acknowledge that evaluation Software license keys have an expiration date (“Expiration Date”) and that Virtualaze is not obligated to allow further permitted use of the Software.
2.2 Beta Software. If the Software you have received is pre-release or beta Software (“Beta Software”) then this provision applies. To the extent of the conflict between this provision and any other term or condition in the Agreement, this section shall supersede such other terms or conditions with respect to the Beta Software. You acknowledge that the Beta Software is a pre-release version, does not represent the final product from Virtualaze, and may contain bugs, errors, security flaws, and other problems that could cause system or other failures or security breaches. You acknowledge that Virtualaze has no express or implied obligation to You to announce or introduce the Beta Software, and that Virtualaze may not introduce a product similar to or compatible with the Beta Software. You may not sublicense, lease, loan, rent, copy, distribute or otherwise transfer the Beta Software.
2.3 Evaluation/Trial/Test License. If you are receiving a license to use the Software for demonstration or evaluation purposes (the “evaluation product”), your use of the evaluation product is only allowed in a non-production environment and only for internal demonstration, test or evaluation of the suitability of the evaluation product for licensing on a for-fee basis until the expiration date.
2.4 Not For Resale (NFR). If the Software is “Not for Resale Software,” notwithstanding any term to the contrary in this agreement, your license allows a Permitted Use only if You are a current Virtualaze authorized reseller and then only for demonstration, test or evaluation purposes in support of your customers. Note that “Not for Resale” Software disables itself on the Expiration Date in the Software Documentation.
2.5 Beta Software, Evaluation/Trial/Test Product and Not for Resale Warranty Disclaimer. NOTWITHSTANDING ANY OTHER PROVISION IN THIS EULA, EACH OF THE BETA SOFTWARE, EVALUATION PRODUCT AND THE NOT FOR RESALE SOFTWARE IS PROVIDED TO YOU “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. VIRTUALAZE AND ANY LICENSOR OF THE SOFTWARE TO YOU BEAR NO LIABILITY FOR ANY DAMAGES RESULTING FROM PERMITTED USE (OR ATTEMPTED PERMITTED USE) OF EACH OF THE EVALUATION PRODUCT AND THE NOT FOR RESALE SOFTWARE THROUGH AND AFTER THE EXPIRATION DATE. WHERE LEGAL LIABILITY CANNOT BE EXCLUDED FOR BETA SOFTWARE, EVALUATION PRODUCT OR NOT FOR RESALE PRODUCT, BUT IT MAY BE LIMITED, VIRTUALAZE’S LIABILITY SHALL BE LIMITED TO THE SUM OF FIFTY DOLLARS (USD $50) IN TOTAL.
2.6 No Support. Virtualaze has no duty to provide support to you during your permitted use of the Beta Software, Evaluation/Trial/Test Product or the Not for Resale Software.
2.7 Virtualaze Unify Education Edition
Any data you enter into the products, and any customizations made to the products by or for you, during your free Education Edition may be lost unless you purchase a subscription to the same products as those covered by the trial, purchase upgraded products, or export such data, before the end of the free software period. You cannot transfer data entered or customizations made during the free Educational Edition to a product that would be a downgrade from that covered by the trial (e.g. basic to free Education version) therefore, if you purchase a service that would be a downgrade from that covered by the trial, you must export your data before the end of the free Education Edition period or your data risk being permanently lost. Notwithstanding of this Section, during the free Education Edition the services are provided “as-is” and “as available” without any warranty.
(b) Use of special versions: Some Products will at the end of a free Educational Edition period where no purchase was made or at the end of a subscription term where no renewal was purchased expire in its functionality. An artificial prolongation of the subscription expiration time, e.g. with partition recovery tools or via hypervisor images etc. is not allowed. You will be informed about free versions of the Products at download. Free versions can be used free of charge. Terms and conditions for use of free versions of the Products are incorporated into this Agreement by reference and are legally binding.
(c) A commercial usage of the Virtualaze Education Edition is strictly not permitted and illegal. All related software services have to be uninstalled and deleted immediately.
(d) The school or educational institution can upgrade the software license via annual subscription at a special discounted price. Please get in touch directly with Virtualaze or one of Virtualaze represenatives e.g. distribution/resellers or system integrators.
3. GRANT AND USE RIGHTS FOR SOFTWARE
3.1 License Grant. The Software is licensed, not sold. Subject to the terms and conditions of this EULA, Virtualaze grants You a non-exclusive, non-transferable license, without rights to sublicense, to: (i) reproduce, distribute and install copies of the Software on the computers of the Authorized Users or the Authorized Concurrent Users, as applicable; or (ii) allow up to the permitted number of Authorized Users or Authorized Concurrent Users, as applicable, to use for a Permitted Use the Software in accordance with the Documentation and, subject to Section 3.2, for which You have paid the applicable License Fees. Virtualaze shall issue you a Software Subscription License Key that sets forth the specific license Software and the number of Authorized named Users (license) permitted to use such Software. If You were invoiced in the European Union for the Software, You may use that Software in any of the European Union member states for a permitted use. You may allow Authorized Users to access and use the Software on Your behalf for a permitted use, provided, they are bound by an agreement with You protecting Virtualaze's intellectual property with terms no less stringent than this EULA and You ensure that such use of the Software complies with the terms of this EULA. This license grant includes the right to use the documentation for the sole purpose of using the Software for a Permitted Use. You may make one backup, unmodified copy of the Software in machine readable form solely for archival purposes provided that you reproduce all proprietary notices on the copy. If You upgrade or exchange the Software from a previous validly licensed version, You must cease use of the prior version of that Software. The Virtualaze Software is intended for your own personal non-commercial use only. The Virtualaze Software may only be used commercially or be re-distributed with written agreement from Virtualaze.
3.2 Restrictions and Other Rights.
(a) Except as expressly permitted by this EULA or by applicable law, you may not directly or indirectly:
(i) sell, lease, assign, license, sublicense, distribute or otherwise transfer in whole or in part the Software and documentation;
(ii) permit any use of or access to the Software and Documentation by any third party, except as provided in Section 3.1 above;
(iii) operate the Software on behalf of or for the benefit of any third party, including the operation of any service that is accessed by a third party, except that, for the purposes of this Section 3.2(iii), You may use the Software to deliver hosted services to Your affiliates that are directly or indirectly controlled by, or are under common control with You. "Control" in this Section 3.2(iii) means an ownership, voting or similar interest representing fifty percent (50%) or more of the total interests then outstanding of the relevant entity;
(iv) copy, decompile, disassemble, reverse engineer, otherwise alter the Software or Documentation or convert the Software to human readable form or source code;
(v) modify or create derivative works based upon the Software or Documentation;
(vi) create, develop, license, install, use, or deploy any software or services to circumvent, enable, modify or provide access, permissions or rights which violate the technical restrictions in the Software; or
(vii) Alter or remove any copyright, patent, trade secret, proprietary or other legal notices, labels or marks on any Software or Documentation.
(b) You acknowledge that the Software may include features that ensure that your use of the Software complies with the terms of this Agreement.
3.3 Third-Party Software. You are responsible for separately obtaining and complying with any licenses necessary to operate Third-Party Software, including but not limited to application programs which the Software enables you to access and run.
3.4 Data Collection and Privacy.
(a) You agree that Virtualaze may collect, use, store and transmit technical and related information about your use of the Software which may include internet protocol address(es), hardware identification, operating system, application software, peripheral hardware, and non-personally identifiable Software usage statistics ("Collected Data") to facilitate the provisioning of updates, support, invoicing or online services to you. Collected Data is subject to Virtualaze's Privacy Policy and you agree that Virtualaze has the right in its sole discretion to amend this provision of the EULA or the Privacy Policy at any time.
(b) Notice to European Users. Please note that the information described in Section 3.5(a) above may be transferred outside of the European Economic Area, for purposes of processing, analysis and review, by Virtualaze GmbH, a company located in Germany or its subsidiaries or Virtualaze’s affiliates or authorized partners, located worldwide. You are advised that the United States uses a model of privacy that the Council of the European Union has found does not provide “adequate” privacy protections as contemplated by Article 25 of the European Union’s Data Directive. Article 26 of the European Union’s Data Directive allows for transfer of personal data from the European Union to a third country if the individual has unambiguously given his consent to the transfer of personal information, regardless of the third country’s level of protection. By agreeing to this EULA, you consent to the transfer of all such information to the United States and the processing of that information as described in the EULA and the Privacy Policy.
3.5 Audit Rights. During the term of this EULA and for one (1) year after termination or expiration of the EULA or support services for the applicable Software has expired, you agree to maintain accurate records as to your installation and use of the Software, sufficient to provide evidence of compliance with the terms of this EULA. Virtualaze, or an independent third party designated by Virtualaze, may audit, upon written notice to You, your books, records, and computing devices to determine your compliance with this EULA and your payment of the applicable license and support services fees, if any, for the Software. Virtualaze may conduct no more than one (1) audit in any twelve (12) month period. In the event that any such audit reveals an underpayment by You of more than five percent (5%) of the license amounts due to Virtualaze in the period being audited, or that You have breached any term of the EULA, then, in addition to paying to Virtualaze any underpayments for Software licenses fees and any other remedies Virtualaze may have, You will promptly pay to Virtualaze the audit costs incurred by Virtualaze.
3.6 Upgrading the Software. Virtualaze may issue you an upgraded version of the Software automatically upon an instance of your use of the Software or otherwise in connection with your use of the Virtualaze ready device. Alternatively, Virtualaze may require you to consent to an upgrade to the Software ("Software Upgrades") before using, installing or accessing the Software. If you decline the Software Upgrades, you may not be able to use or access the Software.
4. TITLE. No title to or ownership of the Software is transferred to you. Virtualaze or its applicable licensors retains all rights, title, interest in and ownership of the Software, the Software license key(s), the documentation or any copy thereof regardless of the form or media on or in which the original or any copy may exist and all related intellectual property rights, including, without limitation, patents, copyrights, trade secrets. All rights in and to virtualize third party software that is delivered or operated through your use of the Application Launcher, the Application Server, the Application Management Software and the Remote Application Protocol belongs to the respective owner of such software.
5. SUPPORT SERVICES. Virtualaze does not provide any support for the Software under this EULA.
6. TERMINATION. This EULA is effective until terminated. Your rights under this EULA are terminable by Virtualaze at any time without notice. Further, this EULA will terminate if Virtualaze finds that you have violated any of the terms of this EULA. No waiver of any breach of any provision of this EULA by Virtualaze shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless it is made in writing and is signed by an authorized representative of Virtualaze. Any obligations to pay fees incurred prior to termination, all provisions relating to confidentiality, proprietary rights, and nondisclosure and Sections 3 (except for 3.1), 4, 6, 7, 8, and 9 shall survive the termination of this EULA. In the event of termination, you must remove and destroy all copies of the Software and Software license key(s), including all backup copies, from the server and all computers and terminals you own, possess or control and on which the Software is installed.
7. EXCLUSION OF WARRANTIES
7.1 YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SOFTWARE IS AT YOUR SOLE RISK AND THAT IT IS PROVIDED "AS IS" AND "AS AVAILABLE."
7.2 VIRTUALAZE, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS MAKE NO EXPRESS WARRANTIES AND DISCLAIM ALL IMPLIED, STATUTORY OR OTHER WARRANTIES REGARDING THE SOFTWARE, INCLUDING IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, VIRTUALAZE, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE SOFTWARE WILL MEET YOUR REQUIREMENTS, AND (B) YOUR USE OF THE SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR. THE SOFTWARE ISPROVIDED “AS IS” AND “AS AVAILABLE” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. VIRTUALAZE DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
8. LIMITATION OF LIABILITY
8.1 NEITHER PARTY'S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY YOU HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
8.2 YOU EXPRESSLY UNDERSTAND AND AGREE THAT VIRTUALAZE, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING ,BUT NOT LIMITED TO, LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, STRICT PRODUCT LIABILITY, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS.
8.3 THE LIMITATIONS ON VIRTUALAZE'S LIABILITY TO YOU IN SECTION 8.1 ABOVE SHALL APPLY WHETHER OR NOT VIRTUALAZE HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
9. GENERAL
9.1 Entire Agreement. This EULA represents the entire agreement between the parties with respect to the Software, and supersedes any prior or contemporaneous oral or written agreements concerning the subject matter contained herein.
9.2 Headings. Headings under this EULA are intended only for convenience and shall not affect the interpretation of this EULA.
9.3 Waiver and Modification. No failure of either party to exercise or enforce any of its rights under this EULA will act as a waiver of those rights. This EULA may only be modified, or any rights under it waived, by a written agreement executed by the party against which it is asserted.
9.4 Severability. If any provision of this EULA is found illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions of this EULA will not be affected.
9.5 Export Controls. The Software and Documentation are of European Community origin and are provided subject to the EU Export Administration Regulations. Diversion contrary to EU law is prohibited. Without limiting the foregoing, you agree that (1) you are not, and are not acting on behalf of, any person who is a citizen, national, or resident of, or who is controlled by the government of Iran, North Korea, Sudan, or Syria, or any other country to which the EU has prohibited export transactions; (2) you are not, and are not acting on behalf of, any person or entity listed on the EU Treasury Department list of Specially Designated Nationals and Blocked Persons, or the EU Commerce Department Denied Persons List or Entity List; and (3) you will not use the Software or Documentation for, and will not permit the Software or Documentation to be used for, any purposes prohibited by law, including, without limitation, for any prohibited development, design, manufacture or production of missiles or nuclear, chemical or biological weapons.
9.6 Governing Law.
(a) If you are located in the United States and are using the Software in the United States then this EULA will be governed and construed in accordance with the laws of the state of Germany and you expressly agree that exclusive jurisdiction for any claim or dispute with Virtualaze or relating in any way to your use of the Software resides in the federal or state courts of the state of California and you further agree and expressly consent to the exercise of personal jurisdiction in the federal or state courts of the state of California in connection with an such claim or dispute.
(b) If You are located in the European Union and are using the Software in the European Union and not in the United States, then this EULA will be governed and construed in accordance with the laws of Germany (excluding its conflict of laws principles and the U.N. Convention on Contracts for the International Sale of Goods) and you expressly agree that exclusive jurisdiction for any claim or dispute with Virtualaze or relating in any way to your use of the Software resides in the courts of Germany in connection with any such claim or dispute.
(c) If You are located outside of the European Union or the United States and are not using the Software in the United States, then this EULA will be governed and construed in accordance with the laws of the state of Germany and you expressly agree that exclusive jurisdiction for any claim or dispute with Virtualaze relating in any way to your use of the Software resides in the courts of the federal or state courts of the state of Germany and you further agree and expressly consent to the exercise of personal jurisdiction in the federal or state courts of the state of California in connection with an such claim or dispute.
9.7 Open Source Notices. Please check our homepage for notices relating to Open Source Software.
9.8 Contact Information. Please direct legal notices or other correspondence to the address specified under: www.virtualaze.com. If you have any questions concerning this EULA, please send an email via the Virtualaze.com contact form.
9.9 Notices. Any notice or communication given under this EULA shall be in writing and shall have been properly given by either of us to the other if sent by certified or registered mail, return receipt requested, or by overnight courier to the address shown on Virtualaze’s website for Virtualaze and the address shown in Virtualaze’s records for You, or such other address as the parties shall designate by notice given in the manner set forth above.
9.10 Binding. This EULA will bind and inure to the benefit of the parties and our respective heirs, personal and legal representatives, affiliates, successors and permitted assigns. Copyright © 2009-2018 Virtualaze GmbH - Germany. All rights reserved. Virtualaze software products are protected by European Software Copyright law.