Nipper End User License Agreement
Pursuant to a purchase order (the “Order”), you have purchased a license to use Nipper (the “Software”), which is owned by Titania Ltd (“Titania”). This End User License Agreement (“EULA”) specifies the terms under which you and your Authorized Users (as defined below) may access and use the Software.
Please read this EULA carefully before accessing and using the Software. BY ACCESSING AND USING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS OF THIS EULA. IF YOU DID NOT CHECK THE BOX INDICATING YOUR CONSENT TO THIS EULA OR IF YOU DO NOT AGREE TO THIS EULA, YOU MAY NOT ACCESS OR USE THE SOFTWARE OR ANY PORTION THEREOF UNDER ANY CIRCUMSTANCES.
IF YOU ARE ACCEPTING OR CONSENTING TO THIS EULA ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT COMPANY OR OTHER LEGAL ENTITY AND, IN SUCH EVENT, “YOU” WILL REFER AND APPLY TO THAT COMPANY OR OTHER LEGAL ENTITY.
1) LICENSE GRANT. The Software is licensed, not sold. Subject to your compliance with this EULA, Titania provides to you and your Authorized Users a personal, revocable, limited, non-exclusive, non-sublicenseable, and non-transferable license to access and use the Software for the license term set forth in the Order (the “Term”) for the limited purposes set forth below. Notwithstanding the foregoing license grant, you hereby acknowledge and agree that Titania does not transfer any ownership or intellectual property interest or title in and to the Software to you or anyone else under this EULA or otherwise. Titania hereby reserves any and all intellectual property rights in and to the Software not otherwise expressly granted in his EULA. For purposes of this EULA, “Authorized Users” means your employees and any independent contractors that are performing services on your behalf, but solely within the scope of such engagement. You shall be responsible for the acts and omissions of such Authorized Users with respect to this EULA.
You may install the Software on systems that you own and/or manage and may, for the purposes of disaster recovery, create a backup copy of the Software. You may use the Software to audit only the combined total number of individual devices detailed in the Order. Devices can be physical and/or virtual. You may audit devices that you own or manage and (with their permission) devices belonging to other people or organizations. Device counts are reset each subscription year during the Term. For further information on supported devices and basic system requirements needed to operate the Software, see https://www.titania.com/products/nipper/.
2) RESTRICTIONS ON USE. You shall not (and shall not authorize or knowingly permit any third party to): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code, algorithms, file formats, or interface protocols of the Software or of any files contained therein; (ii) copy, modify, adapt, or translate the Software or otherwise make any use, resell, distribute, or sublicense the Software; (iii) make the Software available on a “service bureau” basis; (iv) remove or modify any proprietary markings or restrictive legends placed on the Software or the documentation; (v) use the Software in violation of any applicable law, rule, or regulation; or (vi) introduce into the Software any malicious or harmful code.
3) INTELLECTUAL PROPERTY. The Software is “Commercial computer software” within the meaning of the applicable federal acquisition regulations (e.g., FAR 2.101). Titania owns all right, title, and interest in and to the Software and all intellectual property rights related thereto. No license or other right is granted to you herein except for the rights specifically set forth in this EULA. By using the Software, you acknowledge and agree not to contest Titania’s proprietary rights in the Software.
4) LIMITED WARRANTY; DISCLAIMER.
(a) Titania warrants that during the Warranty Period (as defined below) the Software will perform substantially as described in our published documentation. This limited warranty does not cover problems caused by you (e.g., your election to exclude specific findings or change reports generated by the Software) or third parties, combining the Software with other systems, or events beyond Titania’s reasonable control. The limited warranty starts when you receive the Software license and lasts for one (1) year or the remainder of the subscription, whichever is shorter (the “Warranty Period”). Any Software updates you might receive from us are also covered, but only for the remainder of the Warranty Period.
(b) EXCEPT AS EXPRESSLY SET FORTH IN SECTION 4(A), THE SOFTWARE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND TITANIA MAKES NO WARRANTIES WHATSOEVER REGARDING THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES WITH REGARD TO PERFORMANCE, MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT, FITNESS FOR ANY PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, OR ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. TO THE EXTENT THAT TITANIA MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
(a) Subject to Section 5(c), Titania shall defend, or, at our option, settle any claim brought against you by a third party alleging that your use of the Software in accordance with this EULA infringes an intellectual property right of such third party (each, a “Claim”). We shall pay reasonable costs and damages awarded against you or agreed by us in a settlement of a Claim provided: (i) you immediately notify us of the Claim; (ii) you do not admit liability or come to any agreement regarding the Claim without our written consent; (iii) you provide us and our representatives with reasonable assistance, including access to all relevant information, and sole authority to defend or settle the Claim; and (iv) the plaintiff in the Claim lives or is domiciled in a country that is party to the World Intellectual Property Organization Treaties on patents, trademarks, and copyrights.
(b) If, in Titania’s sole opinion, the Software is or is likely to become the subject of a Claim, then we shall either: (i) obtain the right for you to continue using the Software; (ii) replace it; or (iii) modify it so it becomes non-infringing. If, in Titania’s sole opinion, such remedies are not available on commercially reasonable terms, then we may terminate this EULA, in which case you shall immediately cease all access to, and usage of, the Software; you shall return all copies of the Software to us; and we shall provide you a pro-rata refund of any fees you have already paid, which relate to the period after the date of termination.
(c) Titania shall have no liability for any Claim resulting from (i) the combination of the Software with hardware or software that were neither supplied nor combined with the Software by us; or (ii) any use of the Software other than in accordance with the terms of this EULA.
(d) This Section 5 constitutes your exclusive remedy and Titania’s only liability in respect of all Claims.
6) LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, STATUTORY OR OTHERWISE, IN NO EVENT SHALL TITANIA OR ITS AFFILIATES BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, OR INDIRECT DAMAGES FOR PERSONAL INJURY, LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION/DATA, OR ANY OTHER PECUNIARY LOSS OF ANY KIND ARISING OUT OF THE SOFTWARE OR YOUR USE OR INABILITY TO USE THE SOFTWARE, EVEN IF SUCH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT IN CONNECTION WITH OUR INDEMNIFICATION OBLIGATIONS UNDER SECTION 5, IN NO EVENT SHALL TITANIA’S OR ITS AFFILIATES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES RELATING TO THE SOFTWARE EXCEED THE AMOUNTS PAID TO US UNDER THE ORDER IN THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENTS GIVING RISE TO THE CLAIM. ANY ACTION UNDER THIS EULA MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.
7) TERMINATION. Titania reserves the right, in our sole discretion, to restrict, suspend, or terminate this EULA and your access to all or any part of the Software if you are in breach of this EULA. Upon any expiration or termination of this EULA, you shall immediately cease all access to, and usage of, the Software, and you shall return all copies of the Software to us. Sections 3, 4(b), 5, 6, 7, 11, and 12 shall survive the expiration or termination of this EULA.
8) SUPPORT. This EULA includes (i) free bug-fixes and updates, as they are made generally available at no cost to our other customers from time to time; and (ii) integrated and email support options. We use commercially reasonable efforts to answer all of our tech support and other emails within one (1) or two (2) business days. Further details regarding support can be found in our Terms and Conditions, which are hereby incorporated by reference.
9) REFUNDS. If Titania breaches the limited warranty in Section 4(a) during the Warranty Period, we shall use commercially reasonable efforts to repair or replace the Software at no charge. If we are unable to do so promptly, we may terminate this EULA, in which case you shall immediately cease all access to, and usage of, the Software; you shall return all copies of the Software to us; and we shall provide you a pro-rata refund of any fees you have already paid, which relate to the period after the date of termination. These are your only remedies for our breach of the limited warranty.
10) ANTI-BRIBERY. Titania and you warrant to each other that in entering into this EULA neither they, nor any other person or entity acting on their behalf, has taken or will take any action, directly or indirectly, that breaches the United Kingdom Bribery Act 2010, the United States Foreign Corrupt Practices Act 1977, or any other anti-bribery laws or regulations that may apply.
11) CONFIDENTIALITY; FEEDBACK; DATA.
(a) “Confidential Information” means: (i) with respect to Titania, the Software and any other non-public information or material regarding its legal or business affairs, financing, customers, properties, pricing, or data; and (ii) with respect to you, your configuration files and any other non-public information or material regarding your legal or business affairs, financing, customers, properties, or data. Notwithstanding any of the foregoing, Confidential Information does not include information which: (a) is or becomes public knowledge without any action by, or involvement of, the party to which the Confidential Information is disclosed (the “Receiving Party”); (b) is documented as being known to the Receiving Party prior to its disclosure by the other party (the “Disclosing Party”); (c) is independently developed by the Receiving Party without reference or access to the Confidential Information of the Disclosing Party and is so documented; or (d) is obtained by the Receiving Party without restrictions on use or disclosure from a third party.
(b) The Receiving Party will: (i) protect the confidentiality of the Disclosing Party’s Confidential Information using the same degree of care that it uses with its own confidential information of similar nature, but with no less than reasonable care; (ii) not use any of the Disclosing Party’s Confidential Information for any purpose outside the scope of this Agreement; and (iii) not disclose the Disclosing Party’s Confidential Information to any party other than its employees, contractors, advisors, and agents, who are bound by obligations of confidentiality as restrictive as those set forth in this Agreement. If the Receiving Party is legally compelled to disclose any of the disclosing Party’s Confidential Information, the Receiving Party (unless legally prohibited) will provide the Disclosing Party prompt prior written notice of such requirement so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Section. If such protective order or other remedy is not obtained or the Disclosing Party waives compliance with the provisions of this Section, the Receiving Party may furnish only that portion of the Confidential Information which it is advised by counsel is legally required to be disclosed, and will use commercially reasonable efforts to insure that confidential treatment shall be afforded such disclosed portion of the Confidential Information.
(c) During the Term, you may elect to provide Titania with feedback, comments, and suggestions with respect to the Software (“Feedback”). You agree that Titania shall be free to use, reproduce, disclose, and otherwise exploit any and all such Feedback without compensation or attribution to you.
(d) Titania may monitor the performance and use of the Software by all of its customers, combine this data (the “Usage Data”) with other data (including your data), and use such combined data in an aggregate and anonymous manner. You hereby agree that Titania may collect, use, and publish such aggregate data for the purpose of creating aggregated and anonymized statistics regarding our customer base. Examples of Titania’s use of such aggregate data include, but are not limited to, statistics aggregated across all of our clients on metrics such as number of unique devices, the number of Authorized Users of the Software, and similar metrics that do not identify you or your devices.
(a) This EULA, including the Term and Conditions and other links provided herein, constitutes the entire agreement between both parties with respect to this transaction and the Software and supersedes all proposals, oral or written, all negotiations, conversations, or discussions between or among the parties relating to the subject matter of this EULA, and all past dealing.
(b) Any changes to this EULA must be made in writing, signed by a director of Titania.
(c) You may not assign, transfer, sublicense, or otherwise part with this EULA or any right or obligation under it without Titania’s prior written consent, and all attempts to do so in violation of this Section shall be null and void.
(d) Any part of this EULA that is found to be invalid or unenforceable shall be deemed deleted, and the remainder of this EULA shall not be affected by that deletion.
(e) No waiver of any term under this EULA shall be deemed a further or continuing waiver of such term or any other. No waiver shall be effective unless in writing signed by a duly authorized representative of the relevant party.
(f) Nothing in this EULA shall confer on any third party any benefit or the right to enforce any provision of this EULA.
(g) Neither party will be liable for any delay in performing its obligations under this EULA to the extent such delay is caused by circumstances beyond its reasonable control, including, without limitation, any delay caused by an act or omission of the other party, and the party affected will be entitled to a reasonable extension of time for the performance of its obligations.
(h) This EULA shall be construed in accordance with the laws of England and Wales, and the parties hereby submit to the exclusive jurisdiction of the English Courts.
(i) You hereby grant to Titania the right to use your company name and company logo on our roster of customers. For any other use of your company name and company logo in marketing materials, Titania shall obtain your prior, written consent (email acceptable).
(j) The headings of the paragraphs herein are for convenience of reference only and are not to be considered in construing this EULA.