BY CLICKING ON THE "ACCEPT" BUTTON, YOU OR THE ENTITY OR COMPANY THAT YOU REPRESENT ("LICENSEE") ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS LICENSE AGREEMENT ("AGREEMENT") BETWEEN LICENSEE AND BIGFIX, INC. ("COMPANY"). LICENSEE'S CONTINUED USE OF THE DOWNLOADED MATERIALS SHALL ALSO CONSTITUTE ASSENT TO THE TERMS OF THIS AGREEMENT. IF LICENSEE DOES NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE "CANCEL" BUTTON AND THE DOWNLOAD AND INSTALLATION PROCESS WILL NOT CONTINUE. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
1. Grant of Limited License. Subject to all the terms of this Agreement, Company grants Licensee the nonsublicensable, nonexclusive, right (the "License") to use the BigFix Opal Workflow (the "Software") in object code form only, and strictly in accordance with and subject to Company's applicable user documentation. The Software is designed to work in connection with the BigFix Enterprise Suite Client ("BES Client"), which must be licensed separately by Licensee. This Agreement does not include a license to use the BES Client or any Company proprietary materials other than as expressly set forth in the first sentence of this Section 1.
2. Restrictions. Licensee will maintain the copyright notice and any other notices that appear on the Software on any copies and any media. Licensee will not (and will not allow any third party to) (i) reverse engineer or attempt to discover any source code or underlying ideas or algorithms of the Software (except to the extent that applicable law prohibits reverse engineering restrictions), (ii) provide, lease, lend, use for timesharing or service bureau purposes or otherwise use or allow others to use the Software for the benefit of any third party, or (iii) use the Software, or allow the transfer, transmission, export, or re-export of the Software or any portion thereof in violation of any export control laws or regulations administered by the U.S. Commerce Department, OFAC, or any other government agency. All the limitations and restrictions on Software in this Agreement also apply to documentation.
3. Support and Maintenance. This Agreement does not entitle Licensee to any support, upgrades, patches, enhancements, or fixes for the Software (collectively, "Support") unless Licensee makes separate arrangements with the Company or with an authorized third party. For avoidance of doubt, to the extent Licensee is entitled to Support for the BES Client under a separate agreement, the Software shall be treated as a Product Component pursuant to the terms and conditions that govern such Support. Any Support for the Software that may be made available by the Company shall become part of the Software and subject to this Agreement.
4. Termination. This Agreement shall remain in effect except as specified below. Licensee may terminate this Agreement at any time. This Agreement and all licenses, subscriptions and services will terminate thirty days (ten in the case of non-payment) after notice of any breach by Licensee remaining uncured at the end of such notice period, and immediately in the case of a breach of Section 1 or 2. Upon any full or partial termination, Licensee shall immediately cease all use of the Software and destroy all copies of the Software and all portions thereof and so certify to Company. Except as otherwise expressly provided herein, the terms of the Agreement shall survive termination. Termination is not an exclusive remedy and all other remedies will be available whether or not termination occurs.
5. Limited Warranty and Disclaimer. COMPANY PROVIDES The Software and anything else provided under this agreement (whether product, service or otherwise) "AS IS" and without warranty of any kind, AND hereby disclaims all express or implied warranties, including without limitation warranties of merchantability, fitness for a particular purpose, PERFORMANCE, ACCURACY, RELIABILITY, and non-infringement. FURTHER, COMPANY DOES NOT WARRANT RESULTS OF USE OR FREEDOM FROM BUGS OR UNINTERRUPTED USE OR ACCESS. This disclaimer of warranty constitutes an essential part of this Agreement. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS SO THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU.
6. Limitation of Liability. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, AND EXCEPT FOR BODILY INJURY, COMPANY SHALL NOT BE LIABLE OR OBLIGATED WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT OR UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE FEES PAID TO IT HEREUNDER, OR (II) FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS; (III) FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES; (IV) FOR INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA; OR (V) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF COMPANY SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
7. Miscellaneous. Neither this Agreement nor the licenses granted hereunder are assignable or transferable by Licensee without the prior written consent of Company; any attempt to do so shall be void. Company may assign this Agreement in whole or in part. Any notice, report, approval or consent required or permitted hereunder shall be in writing. No failure or delay in exercising any right hereunder will operate as a waiver thereof, nor will any partial exercise of any right or power hereunder preclude further exercise. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement shall be deemed to have been made in, and shall be construed pursuant to the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Any waivers or amendments shall be effective only if made in writing. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys' fees and costs in connection with such action. As defined in FAR section 2.101, DFAR section 252.227-7014(a)(1) and DFAR section 252.227-7014(a)(5) or otherwise, all Software, Fixlet Messages and accompanying documentation provided by Company are "commercial items," "commercial computer software" and/or "commercial computer software documentation." Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the U.S. Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.