SOFTWARE
LICENSE AGREEMENT
InfoPrint
Manager for AIX, Linux, and Windows
Program
Number: 5648-F40
IMPORTANT
NOTICE: PLEASE READ THIS AGREEMENT (the “Agreement") CAREFULLY BEFORE
INSTALLING OR USING THE SOFTWARE.
This
Agreement is a legal agreement between you ("Licensee" or "you"),
and Ricoh Company, Ltd. and/or its “Affiliates” (as defined below)
(collectively, "Ricoh"). The “Software” is the software named herein
or as set forth in the order, certificate of purchase or other confirmation
issued by Ricoh in connection with your acquisition of the Software (the
“License Confirmation”). Ricoh is
willing to license the Software, which includes the associated media, and
printed or electronic documentation, if any ("Documentation"), only upon the condition that you accept all
of the terms contained in this Agreement.
For the purposes of this Agreement, “Affiliate” means any entity that, from time to time during the term
of this Agreement, Controls, is Controlled by, or is under common Control with
Ricoh Company, Ltd. “Control” means
the power, whether directly or indirectly (by ownership of stock, share
capital, the possession of voting power, contract or otherwise) to appoint
and/or remove the majority of the members of the governing body of Ricoh, or
otherwise exercise control over Ricoh’s affairs and policies.
BY
INSTALLING OR USING THE SOFTWARE, OR CLICKING ON THE "ACCEPT"
BUTTON
BELOW, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU
REPRESENT AND WARRANT THAT THE PERSON ACCEPTING THIS AGREEMENT HAS FULL POWER
AND AUTHORITY TO DO SO ON BEHALF OF LICENSEE.
IF
YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, RICOH IS UNWILLING TO LICENSE
THE SOFTWARE TO YOU AND YOU MUST DISCONTINUE THE USE OR INSTALLATION OF THE
SOFTWARE IMMEDIATELY. IN THIS CASE YOU
MUST CEASE USING THE SOFTWARE AND RETURN THE MEDIUM ON WHICH THE SOFTWARE IS
STORED, IF ANY, AND ALL ACCOMPANYING DOCUMENTATION TO RICOH.
1. Grant and scope of license.
1.1 In
consideration of you agreeing to abide by the terms of this Agreement and
subject to the payment of all relevant fees and charges, if any, Ricoh hereby
grants you a limited, non-exclusive, personal, non-transferable, license to use
the Software in machine-readable object code form only and the Documentation
(“License”). This License and your use
of the Software is further expressly limited to the number, volume, quantity or
other usage metrics or limitations set forth in the License Confirmation and Documentation,
(“Confirmation of Permitted Usage”).
Depending upon the product, the usage metrics may be stated as a permitted
number of users, seats, multi-functional printers, devices, personal computers
or servers, or some other quantitative limitation. Unless the Documentation provides to the
contrary, this Agreement governs any future releases, revisions, updates or
enhancements to the Software. Unless
terminated as provided herein or expressly set forth in the Confirmation of
Permitted Usage, the duration of the License is perpetual.
1.2 You
agree to use the Software in accordance with the terms of this Agreement and
any additional terms set out in the Confirmation of Permitted Usage.
1.3 Subject
to the Confirmation of Permitted Usage, You may: (a) install, load, execute,
operate, perform, display and use the Software for your internal business
processes and operations only; (b) make a reasonable number of copies of the
Software for back-up purposes only, provided that this is necessary for the activities
permitted by clause 1.1, and (c) use any Documentation in support of the use
permitted under clause 1.1 and make copies of the Documentation as reasonably
necessary for its lawful use.
2. Licensee’s undertakings.
2.1
Except as expressly set out in this
Agreement or as otherwise required by applicable mandatory law without the
possibility of contractual waiver or limitation, you agree and undertake:
(a) not to copy the Software or
Documentation, except where such copying is incidental to normal use of the
Software or where it is reasonably necessary for the purpose of back-up or
operational security;
(b) not to make any derivative works of the
Software, nor adapt, vary, translate, modify, or make alterations to, the whole
or any part of the Software nor permit the Software or any part of it to be
combined with, or become incorporated in, any other programs;
(c) not to decompile, disassemble or reverse
engineer the whole or any part of the Software except where required by the
terms of an applicable open source software license, or by applicable law
without the possibility of contractual waiver;
(d) not to rent, lease, sublicense, loan or
transfer the Software and Documentation to any third party, or otherwise allow
any third party to use the Software, without the prior written consent of
Ricoh;
(e) not to distribute, host as a service,
make available for timesharing or otherwise make available for the benefit of
third parties (whether for a fee or otherwise) the Software, in whole or in
part;
(f) to keep any authorized copies of the
Software secure and to maintain accurate and up-to-date records of the number
and locations of all copies of the Software;
(g) to supervise and control use of the
Software and ensure that the Software is used by your employees in accordance
with the terms of this Agreement;
(h) to include the copyright notice of Ricoh
on all entire and partial copies of the Software in any form; and
(i) not to provide, or otherwise make
available, the Software in any form, in whole or in part (including, but not
limited to, program listings, object and source program listings, object code
and source code) to any person other than your employees without prior written
consent from Ricoh.
2.2
You must permit Ricoh and its
authorized representatives, at all reasonable times and on reasonable advance
notice, to inspect and have access to any premises, and to the computer
equipment located there, at which the Software or the Documentation is being
kept or used, and any records kept pursuant to this Agreement, for the purpose
of ensuring that you are complying with the terms of this Agreement.
3. Support & Maintenance.
Ricoh
has no obligation under this Agreement to provide maintenance and/or support
for the Software under this Software License Agreement. Software maintenance,
when included with the license fee or when offered for a separate fee, is
provided under the terms of the Ricoh Software Maintenance Agreement for
Production Printing Software. Additional
fees may apply for this software maintenance.
4. Warranty.
4.1 Ricoh warrants that the media on which
the software is contained, if any (“Media”)
will be free from defects in material or workmanship when used in accordance
with this Agreement for a period of 3 months from the date that the Media is
delivered to you. This limited warranty does not apply if the problem with the
Media results from accident, abuse or misapplication of the Media and shall not
extend to anyone other than the original user of the Software.
4.2 Ricoh warrants that, for a period of 3
months from the date shown on your Confirmation of Permitted Usage (unless a
longer period is otherwise required by mandatory applicable law), the Software
will, when installed on the hardware and/or operating system for which it was
designed, and properly used, operate substantially in accordance with the
Documentation. Any “Third Party Programs” (as defined below) are excluded from
this limited warranty, and alteration, damage or misuse of the Software, or use
of the Software with other software, hardware, operating systems or
configurations other than that for which it was designed, voids this warranty.
4.3 If either of the warranties in clause 4.1
or 4.2 is breached, you must tell Ricoh as soon as possible. You must give Ricoh a reasonable time to fix
the problem and (if necessary) to supply you with a corrected version of the
Media or Software (as applicable). This
will be done without any additional charge to you. If Ricoh is unable to do this within a
reasonable time or Ricoh does not think that it is a sensible way to deal with
the problem, then Ricoh may if it wishes elect to take back the Software and
the Documentation and to refund to you all of the money which you have paid to
Ricoh for use of the Software. If Ricoh
decides to do this, then this will be the only remedy you are allowed in
relation to breach of either of the warranties concerned and Ricoh will not
have any other liability in relation to them.
4.4 You acknowledge that the Software has not
been developed to meet your individual requirements and that it is therefore
your responsibility to ensure that the facilities and functions of the Software
as described in the Documentation meet your requirements.
4.5 This Agreement sets out the full extent
of Ricoh's obligations and liabilities in respect of the supply of the Software
and Documentation. EXCEPT FOR THE LIMITED WARRANTY PROVIDED
HEREIN, You
acknowledge that THE SOFTWARE, SERVICES, support AND ANYTHING ELSE SUPPLIED TO
YOU UNDER THIS AGREEMENT ARE being PROVIDED “as is”, without warranty of any
kind WHATSOEVER. RICOH EXPRESSLY
DISCLAIMS ALL OTHER WARRANTIES, CONDITIONS, REPRESENTATIONS OR OTHER terms
WHATSOEVER (whether express or implied) INCLUDING, BUT NOT LIMITED TO, THE
IMPLIED TERMS OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
YOU ASSUME RESPONSIBILITY FOR THE SELECTION OF THE SOFTWARE TO ACHIEVE
YOUR INTENDED RESULTS. RICOH does not warrant that THE SOFTWARE will meet YouR requirements; that
ITS operation will be uninterrupted, SECURE or error-free; or that all errors
OR DEFECTS will be corrected. TO THE EXTENT PROHIBITED BY APPLICABLE LAW,
AS DEFINED IN SECTION 10.3, SOME OR ALL OF THE ABOVE LIMITATIONS OR EXCLUSIONS
MAY NOT APPLY TO YOU.
5. Ricoh’s
liability.
5.1 Unless otherwise required by applicable law
without the possibility of contractual waiver or limitation and subject to
clause 5.4, in no event shall Ricoh, its Affiliates or suppliers, or its or
their officers, directors, employees, representatives or agents (collectively,
the “Ricoh Parties”) be liable to you (whether for breach of contract,
negligence or for any other reason) for any: (a) loss of profits, sales,
business, anticipated savings or revenues; (b) loss of goodwill; (c) loss,
damage or alteration of data; (d) loss of or loss of use of hardware, software
or data, or (e) indirect, consequential, exemplary or special loss or damages.
5.2 In addition, unless
otherwise required by applicable law without the possibility of contractual
waiver or limitation, Ricoh Parties’ total aggregate liability under this
Agreement and in relation to the Software and anything which Ricoh has done or
not done in connection with this Agreement (and whether the liability arises
because of breach of contract, negligence or for any other reason) shall be
limited to the greater of the total amounts paid and payable by you for the use
of the Software or $100 US Dollars.
5.3 Notwithstanding the
foregoing, Ricoh Parties’ liability for: (a) death or personal injury caused by
the negligence of Ricoh Parties’ or their agents or employees; (B) fraudulent
misrepresentation, or (C) any other liability that cannot be excluded or
limited by mandatory applicable law; is not excluded or limited by this
Agreement, even if any other term of this Agreement would otherwise suggest
that this might be the case.
5.4 TO THE EXTENT PROHIBITED BY APPLICABLE
LAW, AS DEFINED IN SECTION 10.3, SOME OR ALL OF THE ABOVE LIMITATIONS OR
EXCLUSIONS MAY NOT APPLY TO YOU.
6. Intellectual Property Rights; Third
Party Programs.
6.1 You acknowledge that all intellectual
property rights, title, and interest in the Software and Documentation
throughout the world are owned by Ricoh or its third party licensors, that
rights in the Software are licensed (not sold) to you, and that you have no
rights in, or to, the Software, Documentation or anything else supplied to you
under this Agreement other than limited License provided by this Agreement.
Further, no right, title or interest to any trademark, service mark or trade
names of Ricoh is granted by this Agreement. Without
limiting the foregoing, Ricoh and/or its licensors retain all right, title, and
interest in and to its or their intellectual property rights, including
but not limited to: (a) all software code (source and
object), functionality, technology, system or network architecture and user
interfaces and all modifications thereto; (b) all ideas, trade secrets, inventions,
patents, copyrights and other intellectual property rights with respect to the
Software; (c) all evaluations, comments, ideas and suggestions made by you
regarding the Software, whether or not those are incorporated into subsequent
versions, and (d) any modifications or derivative works developed from Ricoh’s
or its licensors’ intellectual property rights. You agree to treat,
protect and maintain Ricoh’s intellectual property rights as strictly
confidential.
6.2 You acknowledge that the
Software may contain software programs, code or
libraries owned by third parties and/or licensed pursuant to one or more open
source software licenses (“Third Party Programs”). You may use such Third Party Programs only as
integrated or contained in the Software; provided that all intellectual
property rights in such Third Party Programs remain owned by their respective
licensors. Where the license agreement
or terms of use for such Third Party Programs (the “Third Party Licenses”) are
contained in the installation instructions, text or “readme” files, or other
download or installation media that Ricoh provides to you in connection with
the Software, your use of the Third Party Programs shall be subject to and you
agree to comply with such Third Party Licenses.
Except as otherwise set forth in a Third Party License, the restrictions
and requirements in this Agreement shall apply to your use of all Third Party
Programs.
6.3 Only when expressly permitted by
applicable law without the possibility of contractual waiver or required by a
Third Party License, Ricoh waives the prohibition in Section 2.1 hereof against
reverse engineering or decompiling, but only as to the respective Third Party
Program for the limited purpose required by the applicable license or law and
not to create any software which is substantially similar to the Software. Except as expressly set out in this Agreement
or by Ricoh, you acknowledge that you have no right to have access to the
Software in source code form, in unlocked coding or otherwise in human readable
form with comments.
6.4 Notwithstanding anything herein to the
contrary, all Third Party Programs are furnished by Ricoh without support, “as
is” and without any warranties of any kind, express or implied, and the use of
such Third Party Programs is at Licensee’s sole risk. IN NO EVENT SHALL RICOH BE LIABLE FOR SUCH
THIRD PARTY PROGRAMS AND RICOH SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED
WARRANTIES (INCLUDING ANY WARRANTY OF NON-INFRINGEMENT) AND DISCLAIMS LIABILITY
INCLUDING ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL LOSS OR DAMAGE, INCLUDING
WITHOUT LIMITATION, ANY LOST PROFITS OR SAVINGS, AND ANY LOSS OR DAMAGE CAUSED
BY ANY THIRD PARTY PROGRAMS.
7. Termination.
7.1 If the Confirmation of Permitted Usage
expressly provides for a fixed term License, the License is terminated at the
end of the fixed term unless the parties agree in writing to renew it.
7.2 Except as provided in Section 7.1, the
term of this License is perpetual and it is effective until terminated. At Ricoh’s option and upon notice to you,
this Agreement will terminate immediately if you fail to pay any fees or
charges specified in your Confirmation of Permitted Usage or fail to comply
with any of the material terms and conditions of this Agreement.
7.3 Upon expiration of the term (if
applicable) or termination of this Agreement, you must immediately stop using
the Software and, at Ricoh’s option, delete, destroy or return the Software and
all of its copies, and confirm to Ricoh when this has been done. Any terms of
this Agreement that by their nature extend beyond the termination of this
Agreement shall survive.
8. U.S. Government Restricted Rights.
8.1 If you are licensing the Software or its
accompanying Documentation for or on behalf of the U.S. Government, then in accordance with 48 CFR
227.7201 through 227.7202-4 (for Department of Defense (DoD) acquisitions) and
with 48 CFR 2.101 and 12.212 (for non-DoD acquisitions), it is
classified as “Commercial Computer Software” and “Commercial Computer Software
Documentation” and is being licensed to U.S. Government end users (i) only as
Commercial items and (ii) with only those rights as are granted to all other
end users pursuant to the terms and conditions hereof.
9. Contact Information.
9.1 Unless otherwise prohibited by applicable
law without the possibility of contractual waiver or limitation, you agree to allow Ricoh to store and use your
contact information, including names, phone numbers, and e-mail addresses,
anywhere it does business. Such information will be processed and used in
connection with our business relationship, and may be provided to contractors,
resellers authorized by Ricoh, and assignees of Ricoh for uses consistent with
their collective business activities, including communicating with you (for
example, for processing orders, for providing services, for promotions, and for
market research). You acknowledge that
your contact information will be stored at data centers, which may, or may not
be located in the country where you are located, and you consent to the
processing and storage of your contact information in such location (including
storage at data centers outside the European Economic Area, even if you are
located within the EEA). Under protection
of confidentiality agreements, Ricoh may transfer your contact information to
third party processors to help Ricoh provide services and manage its
relationship with you, including purchase and order fulfillment, credit card
processing, providing marketing assistance and providing other customer
services. You agree that in the event we undergo re-organisation or are sold to
a third party, Ricoh may transfer the contact information to that re-organised
entity or third party.
10. General.
10.1 Ricoh may transfer, assign, sub-contract or
otherwise dispose of this Agreement, or any of its rights or obligations
arising under it, at any time during the term of the Agreement. Neither this Agreement nor the license to use the Software
may be assigned or otherwise transferred by you except to (i) a wholly owned
subsidiary or (ii) an affiliate that is controlled by or under common control
with you and which, in either case, expressly agrees in writing to assume all
obligations under this Agreement. No
such permitted assignment shall release the original licensee from liability
hereunder.
10.2 You agree to comply with all applicable
export and import laws and regulations applicable to the jurisdiction in which
the Software was obtained and in which it is used. Without limiting the
foregoing, in connection with use of the Software, you shall comply with all
export laws and regulation applicable to goods of United States origin
including those that prohibit the Software from being exported or re-exported
(a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury
Department’s list of Specially Designated Nationals or the U.S. Department of
Commerce Denied Person’s List or Entity List.
By using the Software, you represent and warrant that you are not
located in any such country or on any such list. You also agree that you will not use the
Software for any purposes prohibited by United States law, including, without
limitation, the development, design, manufacture or production of missiles,
nuclear, chemical or biological weapons.
10.3 The United Nations Convention on Contracts
for the International Sale of Goods does not apply to this Agreement. The governing law and jurisdiction for this
Agreement will depend upon where you purchased or obtained the Software, as
follows:
(a) if you purchased or obtained the Software
in the Americas, this Agreement shall be deemed made under the laws of the
State of New York, USA, excluding the choice of law and conflict of law
provisions, and any claim against Ricoh may be enforced or disputed only and
exclusively in the courts of the State of New York,
(b) if you purchased or obtained the Software
in Europe, the Middle East or Africa, this Agreement shall be deemed made under
the laws of the England, excluding the choice of law and conflict of law
provisions, and any claim against Ricoh may be enforced or disputed only and
exclusively in the courts of England, or
(c) if you purchased or obtained the Software
in the regions other than those provided in clauses (a) and (b) above, this
Agreement shall be deemed made under the laws of Japan, excluding the choice of
law and conflict of law provisions, and any claim against Ricoh may be enforced
or disputed only and exclusively in the courts of Tokyo, Japan.
To the extent permitted by local law,
the parties hereto waive any right they may have to trial by jury.
10.4 Should any provision of this Agreement be
held to be void, invalid, unenforceable or illegal by a court, the validity and
enforceability of the other provisions will not be affected thereby, it being
the intent of the parties that this Agreement shall be enforced to the full
extent allowable under applicable law.
Without limiting the foregoing, if any limitation or exclusion of
liability is held by a court or tribunal of competent jurisdiction to be
unenforceable as to a particular claim or cause of action, the parties intend
that it shall nonetheless apply to the maximum extent permitted by applicable
law to all other claims and causes of action.
10.5 Failure of Ricoh to enforce any provision
of this Agreement shall not be construed as a waiver of such provision or of
the right to enforce such provision.
10.6 You agree that this Agreement and any
document expressly referred to in it (including the Confirmation of Permitted
Usage) is the entire agreement between you and Ricoh concerning the Software
and Documentation and supersedes all proposals or prior agreements, verbal or
written, and any other communications between you and Ricoh relating to the
Software and Documentation.
10.7 No amendment to this Agreement shall be
effective unless signed by a duly authorized representative of both parties.
10.8 Ricoh will not be liable to you for any
breach of this Agreement which arises because of any circumstances which Ricoh
cannot reasonably be expected to control.
10.9 If the Software is supplied on a
demonstration, evaluation or similar not-for-resale (“NFR”) basis, you are
granted a limited, non-exclusive license to use a copy of the Software under
the terms of this Agreement for a limited time period only. BY YOUR USE OF THE NFR OR EVALUATION
SOFTWARE, YOU ACKNOWLEDGE AND AGREE THAT YOUR RIGHT TO USE THE SOFTWARE WILL
TERMINATE AFTER THE EVALUATION PERIOD AND THEREAFTER YOU WILL NOT BE ABLE TO USE
THE SOFTWARE UNTIL YOU PURCHASE A COMMERCIAL LICENSE. ALL NFR OR EVALUATION COPIES ARE LICENSED “AS
IS” WITH NO WARRANTIES OF ANY TYPE WHATSOEVER, AND NO SUPPORT AND MAINTENANCE.
10.10 No term of this Agreement is enforceable by a
person who is not a party to this Agreement, except that all of Ricoh
Affiliates are direct and intended third-party beneficiaries of this Agreement
and shall have the benefit of and the right to enforce all provisions of this
Agreement which benefit and are enforceable by Ricoh.
10.11 If there are discrepancies between the
English version of this Agreement and any other language versions of this
Agreement, the English version of this Agreement shall prevail unless otherwise required by local law
without the possibility of contractual waiver or limitation.
10.12 You acknowledge that
the unauthorized disclosure or use of the Software or any related Documentation
or of Ricoh’s intellectual property rights, or breach of your confidentiality
undertaking in violation of this Agreement would cause irreparable injury to
Ricoh for which remedies at law would be inadequate. Accordingly, Ricoh may seek immediate
injunctive or other equitable relief in a court of competent jurisdiction in
connection with any breach or alleged breach of the provisions of this
Agreement.
10.13 Nothing in this Agreement affects any
statutory rights of consumers under applicable law that cannot be waived or
limited by contract.
10.14 If any government or authority imposes a
duty, tax (other than income tax), levy or fee on this Agreement or the sale or
use of the Software itself that is not otherwise provided for in the
Confirmation of Permitted Usage, you agree to pay it when Ricoh invoices you.