BEFORE YOU ("LICENSEE") INSTALL OR ACCESS OR OTHERWISE USE ANY OF THE PHAROS SOFTWARE CONTAINED IN THIS PACKAGE ("SOFTWARE") OR CLICK ON THE "END USER LICENSEE ACCEPT" BUTTON AT THE END OF THIS DOCUMENT, CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THE SCHEDULES (THE "AGREEMENT"). BY INSTALLING OR OTHERWISE USING OR ACCESSING ANY OF THE SOFTWARE CONTAINED ON THIS DISK OR BY CLICKING ON THE END USER LICENSEE ACCEPT BUTTON, YOU ARE CONSENTING TO BE BOUND BY, AND ARE BECOMING A PARTY TO, THIS AGREEMENT.
1.1. "Documentation" means the user manuals and technical manuals in electronic and printed form instructing the Licensee in the use of the Software and the applicable platforms on which the Software will operate. Documentation is available in English only.
1.2. "Installation" means the first use of the License Key.
1.3. "License Key" means the encrypted character string or file that Pharos shall transmit to Licensee via electronic mail or other mutually acceptable means and that enables the use of the Software for a fixed period of time.
1.4. "Primary Server" means the central server where the Software is installed for which Licensee has paid the Total Price. This server provides central configuration and reporting services.
1.5. “Secondary Server” means a server, other than the Primary Server, where the Software is installed. This server connects to the Primary Server.
1.6. "Workstations" means the end user workstation, laptop, or tablet where the Software is installed or the mobile device where the Software is used for which Licensee has paid the Total Price.
1.7. "Software Support Services" means the Software Support Services set out in Schedule 1 ("Support").
1.8. "Total Price" means the current price of the Software as determined by the data held within the License Key plus the annual support, upgrade, and annual license renewal fee and any installation charges due to Pharos or its agents.
1.9. "Renewal Fee" means the annual support, upgrade, and annual license renewal fee due to Pharos or its agents.
1.10. “Software” means the Pharos and third party software including any upgrades, modified versions, updates, additions, and copies thereof.
2.1. Grant of License. Subject to the terms and conditions of the Agreement, Pharos grants to Licensee a non-exclusive, non-transferable license to use the object code version of Software, including any Documentation, on the Primary Server, Secondary Server(s), and Workstation(s) within the limits specified in the License Key. Licensee may make a reasonable number of copies of the Software for backup or archival purposes only, so long as Pharos' copyright notices are reproduced on each copy. Notwithstanding the preceding, any reproduction or distribution of the Software or the Documentation other than in accordance with the express terms of this Agreement is prohibited by law. Licensee may not modify, lease, rent, sub-license or loan the Software.
2.2. Backup Servers. Subject to the terms and conditions of this Agreement, Pharos will allow the Licensee to utilize the License Key granted in Section 2.1 to establish a supported backup infrastructure. The Licensee Key may only be active in either the production or backup environment at any given time.
2.3. Restrictions On Use. The Software in source code form remains confidential and a proprietary trade secret of Pharos and/or its suppliers and Licensee may not reverse engineer, decipher, decompile, disassemble or create derivative works from the Software. The Software and Documentation shall be used only by Licensee for its internal business use.
2.4. Secure Database. If the Software included in this package is the Pharos Blueprint Enterprise Software product and/or the Pharos Blueprint Assessment Software product, then it contains certain models and costing data (the "Restricted Data") supplied to Pharos by a data supplier (the "Data Supplier") and the Licensee agrees as follows with respect to such Restricted Data:
2.4.1. THE RESTRICTED DATA IS BASED ON INFORMATION BELIEVED TO BE RELIABLE, BUT THE ACCURACY AND COMPLETENESS OF THE RESTRICTED DATA ARE NOT GUARANTEED, AND NEITHER PHAROS NOR ITS DATA SUPPLIER SHALL BE LIABLE FOR ANY ERRORS OR OMISSIONS WHATSOEVER.
2.4.2. Licensee agrees that it will use the Restricted Data solely in accordance with the Documentation and will not use it except for internal business purposes. Licensee agrees that the Data Supplier may enforce all restrictions and terms in its agreement with Pharos related to the Restricted Data and the protection of such Restricted Data.
3. Ownership. Licensee acknowledges that the Software and the Documentation, is the sole and exclusive property of Pharos and its licensors. Pharos' and its third party licensor’s ownership are protected by United States copyright laws, trade secret laws and international treaty provisions. Licensee may not remove any copyright, trademark, or other proprietary or product identification notices from the Software.
4. Payment and License Keys.
4.1. Payment. Licensee shall pay Pharos the Total Price of the Software.
4.2. License Key. Licensee acknowledges that the Software is not functional without the possession of a License Key unique to the Licensee. Pharos may provide Licensee with a temporary License Key prior to receipt of payment. Upon receipt of full payment, Pharos shall deliver to Licensee a License Key. Such License Key shall enable Licensee to use the Software within the limits specified in the License Key for the term of the license ("Initial Term").
4.3. Renewal of Term. Upon expiration of the Initial Term, the Software will cease to function without a new License Key. In order to purchase a new License Key and to receive an additional term of Support Services (as defined in Section 6 ("Software Support")), Licensee may contact Pharos. Pharos shall inform Licensee of the then-current Renewal Fee. Upon receipt of Licensee's payment of the Renewal Fee, Pharos shall transmit via electronic mail a License Key for the subsequent term.
5. Operation. Licensee shall supply hardware of sufficient capacity and configuration to maintain high levels of response time in the Software. If the Software requires Microsoft Office, licensee is responsible for procuring the appropriate Microsoft Office license to enable its use of the Software within the limits of the License Key.
6. Software Support. Pharos, or one of its authorized support centers, shall provide support for the Software ("Support Services") during the Initial Term, and any renewal term, in accordance with Schedule 1 ("Support").
7. Third Party Beneficiary. Licensee acknowledges and agrees that a third party licensor is the owner of certain proprietary information and intellectual property rights included in the Software and the Documentation. Such third party licensors are third party beneficiaries entitled to enforce Pharos’ rights and your obligations hereunder and to seek appropriate legal and equitable remedies, including but not limited to, damages and injunctive relief, for your breach of such obligations.
8. Trademarks. Any trademarks appearing herein are either registered trademarks or trademarks of their respective owners in the United States and/or other countries.
9. Warranty and Disclaimer
9.1. Limited Warranty. This warranty is extended only to the Licensee. For a period of ninety (90) days from Installation ("Warranty Period"), Pharos warrants that the Software will perform substantially in accordance with the accompanying Documentation. In the event that the Software does not perform substantially in accordance with the Documentation ("Error"), then Licensee shall provide Pharos with written notice within ten (10) days of the expiration of the Warranty Period. Upon receipt of such notice, Pharos' sole obligation and entire liability and Licensee's sole and exclusive remedy shall be at Pharos' option, i) to refund the Total Price paid for the Software or (ii) to provide a correction for the Error. This Limited Warranty is void if failure of the Software has resulted from accident, abuse, or misapplication or the occurrence of any of the exclusions to Support Services, as set forth in Schedule 1 ("Support").
9.2. Third Party Supplied Products / Hardware Warranty
9.2.1. Pharos (subject to clause 9.2.9) warrants that the hardware, device(s) or component(s), conforms to the product specifications and requirements.
9.2.2. Pharos (subject to clause 9.2.9) warrants that the hardware, device(s) or component(s), will be free from defects, in workmanship, for a period of twelve (12) months from the date of delivery.
9.2.3. Pharos (subject to clause 9.2.9) warrants that the hardware, device(s) or component(s), are free from defects in materials for a period of twelve (12) months or the warranty of the component manufacturer, whichever is the lesser, from the date of delivery. In respect of materials sourced by Pharos from an outside manufacturer, Pharos liability under its warranty for defective materials will be limited to the rights which Pharos has under that manufacturer’s warranties.
9.2.4. The warranty period (subject to clause 9.2.9) commences with the initial shipment date. If a device is replaced under warranty, the new device’s warranty is still based on the original shipment date of the replaced device. After the warranty period, the customer will be liable for all repair, replacement and shipping costs.
9.2.5. Pharos will complete warranty service within a period of time deemed reasonable by Pharos. For “Repair Work”, as contrasted with warranty service work, Pharos (subject to clause 9.2.9) warrants that the repaired hardware, device(s) or component(s), will be free from all defects in workmanship on the repair exclusively for 4 weeks from the delivery date.
9.2.6. Pharos total liability for defective and damaged hardware (devices or components) is limited at Pharos’ option to either:
126.96.36.199. Repair (if possible) the defective or damaged hardware (devices or components); or
188.8.131.52. Replace the defective or damaged hardware (devices or components).
9.2.7. Repair or Replace: The Warranty is provided on a return to base basis. Pharos shall determine the most appropriate course of action limited to repairing or replacing such hardware, device(s) or component(s). Replacement units or parts may include remanufactured or refurbished parts or components. The responsible party for the costs of removal from site, freight to and from site, and reinstallation and transportation costs to and from the site, is determined under the Pharos Return Merchandise Authorization (RMA) Policy and Procedures, and the following conditions;
184.108.40.206. Manufacturing and/or Design defect: Where the fault is determined to be a manufacturing and/or a Design fault, within the warranty period, Pharos will bear the full cost including repair, shipping, duty, and insurance.
220.127.116.11. Licensee-caused fault: Where the fault is determined to be a licensee fault, Pharos will repair or replace the defective components(s) upon receipt of a Purchase Order for the repair or replacement as appropriate and for shipping, duty, and insurance.
18.104.22.168. No fault found: Where no fault or defect is found, Pharos will return the component(s) to the licensee and bill for shipping, duty, and insurance.
9.2.8. Pharos (subject to clause 9.2.9) warrants that the repaired hardware, device(s) or component(s), will be free from all defects in materials but in respect of materials sourced by Pharos from an outside manufacturer, Pharos liability under its warranty for defective materials will be limited to the rights which Pharos has under that manufacturer’s warranties.
9.2.9. The warranty will be void, no warranty will be given, and Pharos will not be liable, in the sole opinion of Pharos, under the following conditions:
22.214.171.124. Where the hardware's (devices or components) warranty sticker is tampered or broken.
126.96.36.199. Where the hardware (devices or components) is reworked or tampered by parties other than Pharos or its suppliers.
188.8.131.52. Where the end-customer (reseller and / or end-user) has altered or modified, or has subjected the hardware (devices or components) to any misuse, abuse, unusual or non-recommended use, servicing, or handling.
184.108.40.206. Where the design of the hardware (devices or components) does not allow components in the product to perform to their standard performance specifications.
220.127.116.11. For loss caused by any factors beyond Pharos control.
18.104.22.168. For failure to deliver the hardware (devices or components) by any specified dates.
22.214.171.124. For any indirect or consequential loss of any kind, causes external to the product such as electric power fluctuations or failure, damage by accident, damage due to shipment, misuse, misapplication, neglect, fire, water, lightning, lack of proper maintenance, unauthorized product modification, act of nature, normal wear and tear, any other cause which does not relate to a product defect, or failure to follow supplied documentations.
126.96.36.199. For any materials supplied by the customer (reseller and / or end-user) for use by Pharos in the work.
9.2.10. The licensee (reseller and / or end-user) will indemnify Pharos for any damages, loss or expenses incurred by Pharos as a result of any faults in any materials which have either been supplied by the customer (reseller and / or end-user) or have been supplied by suppliers nominated by the customer (reseller and / or end-user).
9.2.11. Custom hardware orders (i.e. non-standard) are non-cancellable and non-returnable. Product returns for standard hardware products are subject to a 25% restocking fee. The returned hardware product must be unopened, unused and received by Pharos within 14 days of the original delivery date. Licensee is responsible for any freight, duty and insurance for the product while in transit back to Pharos.
9.3. DISCLAIMER. OTHER THAN THE WARRANTIES SET FORTH IN SECTIONS 9.1 and 9.2 ABOVE, ALL OTHER WARRANTIES ARE DISCLAIMED, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF A THIRD PARTY'S RIGHTS, OR THAT SOFTWARE WILL MEET ANY REQUIREMENTS OR NEED OR THAT THE USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. If a disclaimer of implied warranties is not permitted by law, the duration of any such implied warranty is limited to ninety (90) days from Installation. Some jurisdictions do not allow the exclusion, or limitation of, implied warranties, so such limitations or exclusions may not apply to Licensee.
10. Limited Liability. IN NO EVENT SHALL PHAROS BE LIABLE TO LICENSEE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS, LOSS OF USE OR INTERRUPTION OF BUSINESS), OR FOR LEGAL FEES, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EVEN IF PHAROS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL PHAROS' AGGREGATE LIABILITY TO LICENSEE EXCEED THE AMOUNT PAID BY LICENSEE.
11. Confidentiality. Licensee agrees to be bound by the terms and conditions for use of the "Confidential Information" as set forth in Schedule 2 ("Confidential Information").
12. General Provisions.
12.1. Choice of Law. This Agreement will be governed by and construed according to the laws of the State of New York, without regard to its conflicts of laws provision. The parties expressly exclude the application of the United Nations Convention on Contracts for the Sale of Goods to this Agreement.
12.2. Assignment. Pharos may assign this Agreement. Licensee may not assign this Agreement, or otherwise delegate any of its obligations under this Agreement, without Pharos' prior written consent.
12.3. Amendments. This Agreement shall not be revoked, rescinded or modified as to any of its terms and conditions except by written Agreement between the parties hereto.
12.4. Waiver. No right under this Agreement shall be deemed to be waived except by notice in writing signed by each party. No waiver by a party will prejudice its rights in respect of any subsequent breach of this Agreement by another party. No failure by a party to enforce any clause of this Agreement or any forbearance, delay or indulgence granted by that party to another party will be construed as a waiver of its rights under this Agreement.
12.5. Severability. If any provision of this Agreement is held invalid, unenforceable or illegal for any reason, this Agreement shall remain otherwise in full force apart from such provision, which shall be deemed deleted.
12.6. Export Control. Licensee acknowledges that the laws and regulations of the United States may restrict the export and re-export of certain commodities and technical data, including the Software and Documentation. Licensee agrees that it will not export or re-export the Software and Documentation in any form without the appropriate United States and foreign governmental licenses.
12.7. Notices. Notices under this Agreement may be delivered to Pharos, by hand, by registered mail or by facsimile to the addresses specified at the beginning of this Agreement. Notice will be deemed given: i) in the case of hand delivery or registered mail, upon written acknowledgment of receipt by an officer or other duly authorized employee, agent or representative of the receiving party or (ii) in the case of facsimile, upon completion of transmission, provided that the sender has no knowledge of the transmission not being received or being corrupted.
12.8. Entire Agreement. This matter constitutes the entire agreement between the parties for the subject matter referred to herein and supersedes all prior or simultaneous representations, discussions, negotiations, and agreements, whether written or oral.
1. SUPPORT SERVICES Pharos' Support Services shall consist of the following:
1.1. The Documentation in electronic form.
1.2. Support from technical personnel comprising of telephone / facsimile / electronic mail consultation concerning, operation, use, and maintenance of the Software. Technical support is available in English only. For an additional fee, the consultation may be performed at Licensee's site, identified at time of purchase or via phone on a mutually convenient date, subject to Pharos then-standard fees for such on-site professional services.
1.3. Pharos may, at its option, provide a temporary correction or work-around and later provide a permanent correction or a Software update.
1.4. Pharos will use commercially reasonable efforts to ensure that the Software will operate with those PCL and Postscript print drivers certified by Pharos and used by Licensee's various applications.
1.5. Modifications to the Software to enable it to operate with future hot fix releases of the Windows Operating System and Microsoft SQL Server database per the applicable Pharos product documentation for the installed version of the Software.
1.6. Software and Documentation updates, at no charge, in electronic form. Such updates may include enhancements to the functionality of the Software and documentation, but exclude new products or modules.
2. SUPPORT AVAILABILITY
2.1. Unless otherwise agreed between the parties Support Services are available as follows: Monday through Friday 8 a.m. through 9 p.m. EST excluding Pharos' company holidays and national holidays (collectively "Support Hours").
2.2. Licensee may contact their Pharos Authorized Support Center (Reseller) for support. Direct requests for support to Pharos may be subject to additional charges. Pharos Support may be contacted via electronic mail at the following address email@example.com. Alternatively, Pharos may be reached by calling +1 (877) 848-0397 (North America) or +54 (9) 523-0737 (New Zealand/Australia) or +1 (585) 939-7099 (Rest of the World).
2.3. Pharos, or its authorized support provider, shall use commercially reasonable efforts to resolve the support request within a reasonable time.
3. EXCLUSIONS TO THE SUPPORT SERVICES Pharos' support obligations do not extend to the provision of support under the following conditions.
3.1. The Software was used on a machine other than the Server or in contravention of this Agreement.
3.2. The Software was used with another software product without the knowledge and consent of Pharos.
3.3. The Software was used contrary to the Documentation or to instructions provided by Pharos or an authorized support center.
3.4. The Software was corrupted by a computer virus or hacker activity.
3.5. The Software was modified without the knowledge and consent of Pharos.
3.6. The Software was used in conjunction with printers using print languages other than those confirmed as being supported by Pharos, as referenced in the Documentation.
3.7. Licensee is not using the most recent release of Microsoft SQL-Server or Microsoft Operating System supported by the Software or the Software itself is not the latest release. In all cases any Service Packs shall be applied. At the sole discretion of Pharos, corrections or workarounds may be made available for earlier releases.
3.8. The development of changes to the functionality of the Software requested by Licensee.
3.9. The development or supply of additional modules to run in conjunction with the Software.
1. Definition of Confidential Information. "Confidential Information" as used in this Agreement shall mean any and all technical and non-technical information including patent, copyright, trade secret, and proprietary information, techniques, sketches, drawings, models, inventions, know-how, processes, apparatus, equipment, algorithms, hardware, software programs, software, and formulae related to the current, future and proposed products and services of Pharos, and includes, without limitation, its respective information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing manufacturing, customer lists, business forecasts, sales and merchandising and marketing plans and information. "Confidential Information" also includes proprietary or confidential information of any third party who may disclose such information to Pharos or Licensee in the course of Pharos's business.
2. Nondisclosure and Nonuse Obligations. Licensee agrees that it will not make use of, disseminate, or in any way disclose Confidential Information to any person, firm or business, except to the extent necessary for negotiations, discussions, and consultations with personnel or authorized representatives of Pharos and any purpose Pharos may hereafter authorize in writing. Licensee agrees that it shall treat all Confidential Information of Pharos with at least the same degree of care as it accords to its own Confidential Information of like nature and Licensee represents that it exercises at least reasonable care to protect its own Confidential Information. If Licensee is not an individual, Licensee agrees that it shall disclose Confidential Information of Pharos only to those of its employees who need to know such information and certifies that such employees have previously signed an agreement at least as protective of Pharos' rights as this Agreement. Licensee will immediately give notice to Pharos of any unauthorized use or disclosure of the Confidential Information. Licensee agrees to assist Pharos in remedying any such unauthorized use or disclosure of the Confidential Information. Additionally, Licensee shall comply with any more specific and/or protective requirements for protection of Confidential Information set forth in this Agreement.
3. Exclusions from Nondisclosure and Nonuse Obligations. Licensee's obligations under Paragraph 2 ("Nondisclosure and Nonuse Obligations") with respect to any portion of Confidential Information shall terminate when Licensee can document that: (a) it was in the public domain at or subsequent to the time it was communicated to Licensee by Pharos through no fault of Licensee; (b) it was rightfully in Licensee's possession, as proven by documents existing prior to disclosure of the Confidential Information to Licensee, free of any obligation of confidence at or subsequent to the time it was communicated to Licensee by Pharos; or (c) it was developed by employees or agents of Licensee who never had access to Confidential Information, independently of and without reference to any information communicated to Licensee by Pharos. If Licensee is required to disclose Confidential Information in response to a valid and binding order by a court or other governmental body, Licensee shall immediately notify Pharos in writing thereof and follow Pharos's instructions for protection of the Confidential Information.
4. Ownership of Confidential Information and Other Materials. All Confidential Information, and any Derivatives thereof whether created by Pharos or Licensee, remains the property of Pharos and no license or other rights to Confidential Information is granted or implied hereby. For purposes of this Agreement, "Derivatives" shall mean: i) for copyrightable or copyrighted material, any translation, abridgement, revision or other form in which an existing work may be recast, transformed or adapted; (ii) for patentable or patented material, any improvement thereon; and (iii) for material which is protected by trade secret, any new material derived from such existing trade secret material, including new material which may be protected by copyright, patent and/or trade secret. All materials (including, without limitation, documents, drawings, models, apparatus, sketches, design and lists) furnished to Licensee by Pharos, and which are designated to be the property of Pharos, shall remain the property of Pharos and shall be returned to Pharos promptly at Pharos's request, together with all copies thereof. All Confidential Information shall be deemed held in trust by Licensee, as trustee, for the benefit of Pharos as trustor.
5. No Commingling of Technology.
5.1. The term "Constrained Personnel" as used herein means Licensee's employees who have had actual exposure (including, without limitation, exposure by means of a printed listing or computer screen display) ("Actual Exposure") to any form of the Software.
5.2. The term "Constrained Project" as used herein means any Licensee project involving products, not based on technology licensed from Pharos, which are of a similar nature to or in any way competing with the Software products related thereto or arising therefrom.
5.3. Licensee hereby represents that as of its execution of this Agreement; it has no ongoing Constrained Projects and has had no Constrained Projects in process within the past two years except as specified on an attached exhibit hereto. Licensee shall give Pharos at least sixty (60) days prior written notice before commencing any Constrained Project. Licensee shall not commence any Constrained Project until the parties have agreed in writing on measures to be taken, in addition to those set forth in this Agreement, to protect Pharos's Software in light of such Constrained Project.
5.4. Licensee shall ensure that no employee shall have access to the Software who has participated in any way in a Constrained Project within the prior one-year period.
5.5. Licensee agrees promptly to implement, document and comply with a written plan approved in writing by Pharos in Pharos's sole discretion to ensure that i) Constrained Personnel are not employed in any Constrained Project, (ii) at such time as personnel become Constrained Personnel, such personnel affirm and covenant in writing that they will not at any subsequent time utilize, or facilitate the use of, the Software in any Constrained Project, (iii) at such time as personnel who were previously Constrained Personnel commence participation in any Constrained Project, such personnel affirm in writing that they remain subject to the obligations set forth in clause (ii) above and that, within the prior one year period, have not had Actual Exposure to any tangible form of the Software.
6. Disclosure of Third Party Information. Neither party shall communicate any information to the other in violation of the proprietary rights of any third party.
7. No Warranty. All Confidential Information is provided "AS IS" and without any warranty, express, implied or otherwise, regarding its accuracy or performance.
8. Remedies; Injunctive Relief. Licensee shall be liable to Pharos for all direct, indirect, consequential, incidental and punitive damages proximately caused by any breach of this Agreement by Licensee or its employees, together with disgorgement of any profits gained thereby. In addition, breach of any of the promises or agreements contained herein will result in irreparable and continuing damage to Pharos for which there may be no adequate remedy at law, and Pharos shall be entitled to injunctive relief and/or a decree for specific performance, and such other relief as may be proper (including monetary damages).