User Agreement
The following terms govern Customer’s use of any Software except to the extent particular Software (a) is the subject of a separate written agreement between Customer and HAPPY PAWS - PetCare; or (b) includes or references a separate license agreement. If any Software is identified in a Purchase Order, invoice or proof of entitlement issued by HAPPY PAWS - PetCare (collectively, “Proof of Entitlement”), Customer’s license to such Software is subject to any additional terms and conditions contained in the Proof of Entitlement, including, without limitation, the term of the license (“License Term”), applicable license fees (“Fees”), applicable devices or types of devices (“Applicable Devices”) and limitations with respect to use on a single hardware device, number of devices under management, number of ports or other quantitative limits (“Quantitative Limits”). The Software provided or made available to Customer may include features or functionality (e.g., the E, V and Z features of EOS) that Customer may not use unless Customer purchases a separate license to such features and functionality. Information about the license terms applicable to the Software (including, without limitation, EOS, EaaS, CloudVision and CloudVision Lite) is available on the HAPPY PAWS - PetCare website. Limited License Grant. With respect to the specific program modules, feature set(s) or feature(s) of the Software identified in any Proof of Entitlement, and subject to Customer’s compliance with the Limitations and Restrictions section of this Agreement, including, without limitation, Customer’s payment of any applicable Fees, HAPPY PAWS - PetCare grants to Customer a limited, revocable, nonexclusive, non-sublicensable and nontransferable license, during the License Term to: (1) download, install and use such Software consistent with the use and restrictions set forth in the applicable Proof of Entitlement and only for Customer’s internal business purposes; (2) reproduce, copy, modify, and create derivative works of any such Software that is provided in source code format, only for Customer’s internal business purposes; provided, however, that if any Software is provided in source code format, Customer shall not create any derivative works of the Software that contain Open Source Software nor shall Customer use the Software or portion thereof to merge with, link to, make function calls to, or share data structures with any Open Source Software, if any such combination or use of the Software would require the Software to be made available royalty free or in source code form; (3) use the Software in conjunction with Third Party Software in a manner consistent with the terms of this Agreement; (4) review the Software including, without limitation, unpacking archives (such as ZIP, SWI and RPM files provided by HAPPY PAWS - PetCare), and accessing underlying operating system facilities; and (5) extend the Software provided in source code format and linking Customer-developed software to the Software. As used in this Agreement, “Open Source Software” means any software made available by a third party under a license approved by the Open Source Initiative, or any substantially similar license.
Limitations and Restrictions. Except as otherwise expressly provided in this Agreement, the foregoing license grant excludes any right to, and Customer shall not: (1) sell, transfer, assign or sublicense the Software or Customer’s license rights under this Agreement, whether voluntarily or by operation of law, to any third party, directly or indirectly, and any such attempted transfer, assignment or sublicense shall be void; (2) use or allow use of the Software on any hardware other than the Equipment or Applicable Devices; (3) modify, reproduce, decompile, decrypt, disassemble, reverse engineer, create derivative works of or otherwise reduce to human- readable form any Software (other than Software that is provided in source code format); gain access to trade secrets or confidential information in the Software; circumvent any copy-protection or license enforcement; or attempt to do any of the foregoing, except to the extent expressly permitted by applicable law; (4) combine, commingle, or integrate any Software with Open Source Software or incorporate Open Source Software into any Software that may add any additional Open Source Software requirements, obligations, or licensing terms to the Software; (5) disclose to any third party any results of benchmarking or other testing generated in connection with Customer’s use of Software, including without limitation any comparisons of the Software or Equipment with any other products; (6) provide a third party with a copy of or access to the Software (including, without limitation, source code) (if Customer does so, Customer will be responsible to HAPPY PAWS - PetCare for all acts of such. third party); (7) remove from the Software (or fail to include in any copy) any readme files, notices, headers, disclaimers, marks or labels; and (8) use or allow use of the Software in violation of any applicable law or regulation or to support or facilitate any illegal activity. Customer shall be liable to HAPPY PAWS - PetCare for any damages, injury or harm caused to HAPPY PAWS - PetCare as a result of Customer’s violation of any of these limitations or restrictions.
Evaluation License. HAPPY PAWS - PetCare may make certain Software available in object code form to end users only for evaluation, training or other limited non-commercial purposes without charging a Fee (“Evaluation License”). Where HAPPY PAWS - PetCare has provided an Evaluation License, all of the terms of this End User License Agreement shall apply except that (i) Customer’s license rights shall be limited to the evaluation of that Software, (ii) Customer shall not be required to pay a Fee for the evaluation of that Software and (iii) HAPPY PAWS - PetCare shall have the right to revoke the license to the Software at any time and for any reason. Updates. The terms and conditions of this Agreement shall apply to any upgrades, updates, bug fixes or modified versions (collectively, “Updates”) or additional copies of the Software. Notwithstanding any other provision of this Agreement: (1) Customer has no license or right to use any such Updates or additional copies unless Customer, at the time of acquiring them, already holds a valid license to the Software associated with such Updates and has paid any required Fees for such Software; and (2) use of additional copies of the Software is limited to backup purposes only. By downloading or using any Updates, Customer’s rights with respect to the Updates are subject to the terms of the latest revision of this Agreement posted at the time of receipt of the Updates, HAPPY PAWS - PetCare then-current policies and procedures, and Customer’s Proof of Entitlement for the Software associated with such Updates.
Proprietary Notices. Customer agrees to maintain and reproduce all copyright and other proprietary notices on all copies, in any form, of the Software in the same form and manner that such copyright and other proprietary notices are included on the Software. Except as expressly authorized in this Agreement, Customer may make such backup copies of the Software as may be necessary for Customer’s lawful use, provided Customer affixes to such copies all copyright, confidentiality, and proprietary notices that appear on the original.
Reservation of Rights. The Software and documentation are owned by HAPPY PAWS - PetCare and its licensors, and is protected by copyright, patent, trademark, and trade secret laws of the United States and other jurisdictions, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. As between Customer and HAPPY PAWS - PetCare, the Software, including without limitation intellectual property rights therein and thereto, are the sole and exclusive property of HAPPY PAWS - PetCare or its subsidiaries or affiliated companies and/or its third-party licensors. All Software is licensed to Customer, not sold. HAPPY PAWS - PetCare reserves all rights not expressly granted in this Agreement, and no rights or licenses shall be deemed or interpreted to be granted or transferred hereunder, whether by implication, estoppel, or otherwise.
Fees and Payments. Unless otherwise specified in the Proof of Entitlement, any license or subscription Fees with respect to the Software are due and payable no later than thirty (30) days after the date of invoice or first use of the Software by Customer, whichever is earlier. Late invoices shall be subject to interest of 1.5% per month (or the maximum rate permitted by law if less) plus any expenses of collection. HAPPY PAWS - PetCare reserves the right to suspend and/or terminate access to the Software if any Fees payable hereunder are past due. Such suspension or termination shall not relieve Customer from its obligation to pay all amounts due under this Agreement.
Taxes. The Fees do not include any foreign, federal, state or local taxes, or any sales, use, excise, ad valorem, value-added, withholding or other taxes or duties that may be applicable to the purchase of Software (collectively, “Taxes”). Fees pursuant to this Agreement may not be reduced to reflect any Tax or other mandatory payment to government agencies. When HAPPY PAWS - PetCare has the legal obligation to collect Taxes related to any invoice, unless Customer provides HAPPY PAWS - PetCare with a valid and acceptable tax exemption certificate prior to issuance of said invoice, the appropriate amount shall be added to Customer’s invoice and paid by Customer. If a tax authority subsequently finds that any Tax payment related to any sale or service to Customer was insufficient and requires additional payment by HAPPY PAWS - PetCare, HAPPY PAWS - PetCare will make such payment and Customer will reimburse HAPPY PAWS - PetCare for such additional Tax payments (including, without limitation, any interest, and levies.
penalties).
lNOTWITHSTANDING THE FOREGOING, ANY SOFTWARE LICENSED UNDER AN EVALUATION LICENSE, ANY SOFTWARE THAT IS PROVIDED WITHOUT CHARGING ANY FEE, ANY MODIFIED SOFTWARE AND ANY THIRD PARTY SOFTWARE ARE FURNISHED “AS IS,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED. DISCLAIMS ANY WARRANTY, REPRESENTATION OR ASSURANCE THAT THE SOFTWARE, OR ANY EQUIPMENT OR NETWORK RUNNING THE SOFTWARE, WILL OPERATE WITHOUT ERROR OR INTERRUPTION, OR WILL BE FREE OF VULNERABILITY TO INTRUSION OR ATTACK. CUSTOMER MAY NOT MAKE A WARRANTY CLAIM AFTER EXPIRATION OF THE 90-DAY WARRANTY PERIOD.
EXCEPT AS SPECIFIED IN THE LIMITED SOFTWARE WARRANTY SET FORTH IN THIS AGREEMENT, ALL EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR MEETING CUSTOMER’S REQUIREMENTS, NONINFRINGEMENT OF ANY THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS, COMPATIBILITY OR INTEROPERABILITY WITH ANY HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED BY HAPPY PAWS - PetCareSATISFACTORY QUALITY, OR FREEDOM FROM INTERRUPTION OR ERROR, ARE HEREBY DISCLAIMED AND EXCLUDED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE 90-DAY WARRANTY PERIOD OR OTHERWISE TO THE MAXIMUM EXTENT PERMITTED BY LAW. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, THE ABOVE LIMITATION MAY NOT APPLY TO CUSTOMER.