OpenText Software and Support Use and Delivery Terms

These terms govern the delivery, access to and use of, Software and Support Services.

1.0 Definitions

Affiliate: Any entity controlled by, controlling, or under common control with a party to the Software license agreement. Control exists through ownership, directly or indirectly, of a majority of the outstanding equity capital and of the voting interests of the subject entity. If an entity ceases to meet these criteria, it will cease to be an Affiliate.
Documentation: User guides, operating manuals, and release notes in effect as of the date of delivery of the applicable Software, made generally available by OpenText.
EULA: These Software Use and Delivery Terms.
Licensee: The end user organization which has obtained the Software Licenses and Support Services for use in its internal business operations, and not for resale or distribution.
License Documents: This EULA including any addenda, the License Model Schedule, Documentation, the document entitled Third Party Notifications (as applicable) available at www.opentext.com/agreements, and any other documents or special terms provided by OpenText setting out permitted uses of the Software.
License Model: The description of the conditions, limitations and restrictions and additional specific terms, metrics and options associated with the Software License which govern the use of the Software, as set out in the applicable License Model Schedule.
License Model Schedule: For each individual Software License, the document(s) describing the License Model applicable to the licensed Software, and entitled “License Model Schedule” or “Additional License Authorizations” or something similar and which is posted at http://www.opentext.com/agreements in effect on the date Licensee purchases Software Licenses.
OpenText: Open Text Corporation or one of its Affiliates.
Partner: An authorized OpenText partner.
Software: The OpenText software products, Documentation, and Support Software licensed to Licensee, including all copies made by Licensee and may, where the meaning so implies, refer to all of the Software or portions thereof.
Software License: A license for the Software granted to the Licensee.
Support Handbook: The then current version of the document describing the software support and maintenance services for the applicable, whether one of the Software Maintenance Program Handbooks or the Business Support Agreement or another support handbook or their successor versions and which is indicated as being the relevant support services description on www.opentext.com/agreements.
Support Services: The software maintenance and support services described in the Support Handbook.
Support Services Term: Each twelve (12) month period beginning on the date the Software is delivered by OpenText to Licensee (which may be accomplished by making the Software available by electronic download) or the anniversary thereof.
Support Software: All maintenance and support software, updates, upgrades, patches, fixes, modifications, ported versions, or new versions of the Software provided to Licensee as part of Support Services, together with all related Documentation provided to Licensee pursuant to such program.
Third Party Software: Software products owned and licensed directly by third parties other than OpenText, to the Licensee.

2.0 Ownership of the Software

2.1 Ownership

None of the Software is being sold. All ownership, intellectual property, and other rights and interests in the Software remain solely with Open Text Corporation, its Affiliates or its licensors. The source code of the Software is a trade secret of Open Text Corporation, its Affiliates or its licensors, and is their confidential information. Licensee shall hold the Software in strict confidence, not to disclose it to third parties other than as permitted under this EULA and not to use it for any purposes other than as expressly permitted hereunder.

3.0 License Grant

3.1 Grant of License

Except as otherwise stated in the License Documents and subject to payment of the Software License fees in full, Licensee is granted a non-transferable (save as provided herein), worldwide, nonexclusive, perpetual (unless stated to be a time limited term), internal business use license (unless otherwise stated in the License Model Schedule) to download, install and execute the Software in object code only, subject to the License Models, restrictions, conditions and limitations stated in the License Documents, and to the quantities for which OpenText has granted Software Licenses and been paid for. OpenText reserves all rights not expressly granted to Licensee by OpenText in a written document.

3.2 Applicable License Models

The License Model will be stated in an order document. If Licensee is not notified of the correct License Model, then the License Model for which OpenText has been paid Software License fees will apply.

3.3 Allocation of Licenses to Affiliates

Unless prohibited under the applicable License Document, the Licensee may allocate Software Licenses to its Affiliates, provided: (a) the Licensee remains responsible for the Affiliate's compliance with the License Documents; and (b) the Licensee is liable for any breach of the License Documents by an Affiliate.

4.0 Authorized Copies

4.1 Software and Documentation

Licensee may make as many copies of the Software necessary for it to use the Software as licensed. Each copy of the Software made by Licensee must contain the same copyright and other notices that appear on the original copy. Licensee will not modify the Documentation. Documentation may: (a) only be used to support Licensee's use of the Software; (b) not be republished or redistributed to any unauthorized third party; and (c) not be distributed or used to conduct training for which Licensee, or any other party, receives a fee. Licensee will not copy any system schema reference document related to the Software.

5.0 Restrictions

5.1 General Restrictions

Except as provided in the License Documents, Licensee will not and will not permit any other party to: (a) assign, transfer, give, distribute, reproduce, transmit, sell, lease, license, sublicense, publicly display or perform, redistribute or encumber the Software by any means to any party; (b) rent, loan or use the Software for service bureau or time-sharing purposes, or permit other individuals or entities to create Internet "links" to the Software or "frame" or "mirror" the Software on any other server or wireless or Internet-based device, or in any other way allow third parties to access, use, and/or exploit the Software; (c) use the Software, in whole or in part, to create a competitive offering; (d) charge a fee to any party for access to or use of the Software; (e) use the Software in a manner inconsistent with the License Documents.

5.2 Further Restrictions

Licensee will not disclose results of any benchmark or other performance, evaluation, or test run on or related to the Software. Licensee acknowledges that the Software is not fault-tolerant and not designed, manufactured, or intended for use or resale as online control equipment in hazardous environments requiring fail-safe performance and consequently will not use the Software for (w) the on-line control of aircraft, air traffic, aircraft navigation, or aircraft communications; (x) in the design, construction, operation or maintenance of any nuclear facility; (y) medical or surgical applications; or (z) any other application in which failure could cause personal injury or death. Except as expressly permitted under applicable law, Licensee will not modify, adapt, translate, reverse engineer, decompile, disassemble, decrypt, port, emulate the functionality, reverse compile, reverse assemble, or otherwise reduce or attempt to discover any source code or underlying structures, ideas, or algorithms of the Software or any confidential information or trade secret.

5.3 Derivative Works / Improvements

Licensee is prohibited from using the Software to create any change, translation, adaptation, arrangement, addition, modification, extension, upgrade, update, improvement, (including patentable improvements), new version, or other derivative work of or to the Software. Notwithstanding the foregoing, if any of the Software is provided to the Licensee in source code format (or any other format that can be modified), the Licensee may modify such portion of the Software for the sole purpose of using the Software in accordance with this EULA and OpenText will solely own all modified portions and Licensee will irrevocably assign to OpenText in perpetuity all worldwide intellectual property and any other proprietary rights in and to any modifications of the Software.

5.4 Interfacing and Interactive Software

Licensee may not permit any software products not licensed by OpenText to interface or interact with the Software, unless accomplished through the use of application program interfaces provided by OpenText.

6.0 Delivery of Software

6.1 Risk of Loss and Shipping Terms

The Software is deemed delivered on the earlier of (a) when it is made available by OpenText for electronic download, or (b) when OpenText delivers the Software on physical media (physical media or hardware containing or enabling the Software). Title to the physical media and all risk of loss for the physical media will pass when delivered by OpenText to the shipping dock of the OpenText shipping facility, at which delivery point the Software shall be deemed to have been delivered and accepted.

7.0 OpenText Support and Maintenance

7.1 OpenText Support and Maintenance Program

All Support Software and Support Services are governed by this EULA and the then-current version of the applicable Support Handbook.

7.2 Support Services Exclusions

OpenText shall have no responsibility to provide Support Services with respect to any problem with the Software caused by: (a) any software, device, or other product not supplied by OpenText; (b) neglect, misuse, alteration, or modification, to the Software other than by OpenText; (c) use of the Software for a purpose other than the purpose for which it was designed; (d) use of the Software on a computer platform other than the platform authorized by OpenText (which may be specified in the Documentation accompanying the Software); or (e) failure of Licensee to install any Support Software provided by OpenText.

8.0 Audits and Noncompliance

8.1 Audit

During the term of the Software Licenses and for 24 months after, Licensee will maintain electronic and other records sufficient for OpenText to confirm that Licensee has complied with this EULA. Licensee will promptly and accurately complete and return (no more than 30 days) any self-audit questionnaires, along with a certification by an authorized representative of Licensee confirming that Licensee's responses to the questionnaire accurately and fully reflect Licensee's usage of the Software. Furthermore OpenText or its nominee may once per year audit Licensee's records and computer systems (including servers, databases, and all other applicable software and hardware) to ensure Licensee has complied with this EULA. Licensee shall cooperate with OpenText's audit team and promptly and accurately respond to, database queries, location information, system reports, and other reports requested by OpenText and provide a certification by an authorized representative of Licensee confirming that information provided by Licensee accurately reflects Licensee's usage of the Software.

8.2 Conduct

Audits will be conducted during regular business hours and will not interfere unreasonably with Licensee's business. OpenText will provide Licensee prior notice of each audit. Such audit shall be scheduled as soon as reasonably possible but in no event more than 7 days subsequent to the notice. Licensee will allow OpenText to make copies of relevant Licensee records. OpenText will comply with all applicable data protection regulations.

8.3 Noncompliance

If Licensee is not in compliance with the Software Licenses, Licensee will be deemed to have acquired additional Software Licenses to bring Licensee into compliance, and Licensee must immediately pay: (a) the applicable Software License fees, and (b) Support Services fees for: (i) the period Licensee was not in compliance with the Software License; and (ii) the first year Support Services fees on any additional Software Licenses. If Licensee has failed to comply with the License Documents, Licensee will reimburse all reasonable costs incurred by OpenText in performing the audit. Compliance with the License Documents is the sole responsibility of Licensee.

9.0 Termination

9.1 Default

Licensee shall be in default upon the occurrence of any one of the following (each of which shall be referred to as a “Licensee Default”): (i) failure to pay fees or other charges when due; (ii) failure to perform any material term or condition of the EULA and such failure is not cured within 30 days of written notice or which is incapable of cure; (iii) ceasing the conduct of active business; (iv) if any proceedings under the applicable law bankruptcy code or other insolvency laws shall be instituted by or against Licensee, or if a receiver shall be appointed for any of its assets; or (v) if Licensee shall make an assignment for the benefit of creditors, or admit in writing its inability to pay debts as they come due. For material breaches relating to the rights granted or restrictions in clauses 2 (Ownership of the Software), 3 (License Grant), 4 (Authorized Copies) or 5 (Restrictions), no such cure period will be granted and such 30 day cure period will be deemed immediately expired.

9.2 Termination

Upon any Licensee Default, or upon expiration of a term license: (a) all Software Licenses will immediately terminate; (b) Licensee will immediately cease all use of the Software; and (c) Licensee must either deliver to OpenText or destroy all copies of Software, Documentation, and OpenText confidential information in Licensee's possession or control. Within 15 days after termination, an authorized representative of Licensee must certify in writing that all copies have been delivered to OpenText or destroyed. Any terms in this EULA which by their nature extend beyond termination or expiration will remain in effect until fulfilled.

9.3 Termination or suspension of Support Services

Without limiting OpenText's rights under clause 9.2, OpenText may, in its sole discretion, terminate or suspend Support Services if there is a Licensee Default or if fees owed to OpenText remain unpaid following a reminder.

10.0 Miscellaneous

10.1 Confidentiality

Licensee agrees, for the period of the Software Licenses and for three (3) years after such period, to hold the Software in strict confidence, not to disclose such confidential information to third parties (other than to Affiliates and to professional advisers who are bound by appropriate obligations of confidentiality) unless authorized to do so by OpenText, and not to use such confidential information for any purpose except as expressly permitted under this EULA. Licensee agrees to take reasonable steps to protect the Software to ensure that such confidential information is not disclosed, distributed or used in violation of the provisions of this Section. The foregoing prohibition on disclosure shall not apply to any information that: (a) is or becomes a part of the public domain through no act or omission of Licensee; (b) was in Licensee's lawful possession without confidentiality obligation prior to the disclosure and had not been obtained by Licensee either directly or indirectly from OpenText; or (c) is lawfully disclosed to Licensee by a third party without restriction on disclosure; or (d) is required to be disclosed by Licensee as a matter of law or by order of a court or by a regulatory body, provided that Licensee promptly notifies OpenText (where lawfully permitted to do so) so that OpenText may intervene to contest such disclosure requirement and/or seek an appropriate protective order or waive compliance with this Section.

10.2 Automated Verification

The Software may contain or require a license key to prevent unauthorized installation or to enforce limits of the Software License, and may contain devices or functionality to monitor Licensee's compliance with this EULA.

10.3 Developer Tools

OpenText is not responsible or liable for Licensee's development or use of additional software code or software products (“Licensee Software”) using software developer tools licensed by OpenText and Licensee will defend and indemnify OpenText against any claims, damages, costs, losses or expenses related to the development or use of the Licensee Software.

10.4 Assignment

Licensee may not assign, transfer, or sublicense any portion of its interests, rights, or obligations under this EULA by written agreement, merger, consolidation, change of control, operation of law, or otherwise, without the prior written consent of OpenText.

10.5 Force Majeure

Except for confidentiality obligations, or protection of intellectual property, neither party is responsible for any delay or failure in performance of this EULA to the extent due to causes beyond its reasonable control.

10.6 Export Laws

The Software, including Documentation, is subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Licensee will comply strictly with all regulations and has the responsibility to obtain any licenses required to export, re-export, or import Software or Documentation.

10.7 Attribution Notices

Licensee will not remove, modify, obscure, resize, or relocate any ownership, attribution, or branding notices from the Software.

10.8 Resale of Third Party Software

The use of any Third Party Software resold by OpenText or Partner to the Licensee will be governed by a license agreement between the Third Party Software owner and the Licensee.

10.9 US Government End Users-Restricted Rights Legend

If the Software is being licensed directly or indirectly on behalf of the United States government, the following applies. For civilian agencies and departments: the Software was developed at private expense and is "restricted computer software" submitted with restricted rights in accordance with subparagraphs (a) through (d) of the Commercial Computer Software-Restricted Rights clause of FAR 52.227-19 and its successors, and it is unpublished and all rights are reserved under the copyright laws of the United States. For units of the Department of Defense, the Software is “commercial computer software” and “commercial computer software documentation” under the Rights in Computer Software and Computer Software Documentation clause of DFAR 227.7202-3 (a) and its successors, and all use, duplication or disclosure is subject to the license and restrictions set forth in this EULA.

10.10 Order of Priority

In the event of an inconsistency between: any special terms provided by OpenText relating to the Software Licenses, this EULA (including any addenda), the License Model Schedule, Documentation, the document entitled Third Party Notifications available at www.opentext.com/agreements or any other documents provided by OpenText setting out permitted uses of the Software, the documents shall be interpreted in that order to the extent of the inconsistency.

10.11 Third Party Rights

OpenText shall be a third party beneficiary to this EULA and entitled to enforce the terms of this EULA against Licensee.

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