Software Deployment

Effective (last revised) 7/8/2010
DELL KACE 
APPDEPLOY & DELL KACE FREE TOOLS END USER LICENSE AGREEMENT
NOTICE -- THIS IS A LEGALLY BINDING CONTRACT.  READ ALL OF THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT (THIS "AGREEMENT") BEFORE USING THE SOFTWARE.  FOR A PRINTABLE VERSION OF THIS AGREEMENT, SEE THE FOLLOWING URL: HTTP://WWW.DELLKACE.COM/LICENSE/APPDEPLOY_EULA
AS STATED HEREIN, ALL APPDEPLOY AND FREE SOFTWARE TOOLS ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. USE OF THE SOFTWARE ACCOMPANYING THIS AGREEMENT INDICATES LICENSEE'S ACCEPTANCE OF THESE TERMS AND CONDITIONS.  IF LICENSEE DOES NOT ACCEPT THIS AGREEMENT IN ITS ENTIRETY, LICENSEE MUST NOT USE THE SOFTWARE.
LICENSEE MAY NOT USE, COPY, MODIFY, DISCLOSE OR TRANSFER THE SOFTWARE OR DOCUMENTATION, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT.
1. Definitions.  
1.1 “Confidential Information” shall mean any oral, written, graphic or machine-readable information disclosed by Licensor that is (i) identified herein as confidential; (ii) designated in writing to be confidential or proprietary; or (iii) should be reasonably understood to be confidential.
1.2 "Documentation" shall mean any on-line read me, help files, or other related explanatory materials that accompany the Software.  
1.3 “Licensee” shall mean the corporate or government entity or entities on whose behalf you are accepting this Agreement and who is afforded all rights and bound by all terms under the Agreement.  If you are not accepting this Agreement on behalf of a corporate or government entity, Licensee shall mean you as an individual.  
1.4 “Licensor” shall mean Dell Products LP or Dell Global B.V. (“Dell”)
1.5 “Software” shall mean the AppDeploy or other computer program made available by Dell KACE, in object code format, including without limitation firmware.  The term “Software” shall also include any updates, upgrades or other new features, functionality or enhancements to the Software made available to Licensee.
1.5 "Third Party Software" shall mean copyrighted software of Licensor's suppliers as identified in associated documentation or other printed materials which are obtained under a license from such suppliers.
2. General.
2.1 This Agreement shall apply to all Software and Documentation made available by Licensor to Licensee.  
2.2 By using the Software or Documentation you accept this Agreement and you agree that you are an authorized representative of the Licensee entity, if any, with the authority to bind the Licensee entity to the terms hereof. 
2.3 Licensee’s use of the Software is expressly limited to the terms and conditions of this Agreement.  Any additional or different terms or conditions in any communication by Licensee are hereby rejected and shall be null and void.  Any failure by Licensor to object to any additional or different provisions proposed by Licensee shall not constitute a waiver of these terms and conditions, nor constitute acceptance of any such provisions.  This Agreement shall be applicable whether or not it is attached to or enclosed with the Software.  
3. License.  
3.1 General.  The Software and Documentation are licensed, not sold, to Licensee by Licensor.  Subject to the terms and conditions of this Agreement, Licensee is hereby granted a non-exclusive, non-sublicensable and nontransferable right, except as expressly provided herein, to use the Software (in object code form only) and Documentation solely in accordance with the Documentation for internal purposes.  Licensee agrees to use its best efforts to prevent and protect the contents of the Software and Documentation from unauthorized disclosure or use.  Licensor and its licensors reserve all rights, including but not limited to ownership and intellectual property rights, not expressly granted to Licensee.  Licensor’s licensors are the intended third party beneficiaries of this Agreement and have the express right to rely upon and directly enforce the terms set forth herein.  There are no implied licenses granted by Licensor under this Agreement.  Except as specified above, Licensee shall have no rights to the Software.
3.2 Distribution and Copy of Software.  Subject to the terms and conditions of this Agreement, Licensee may copy, reproduce, and distribute the Software and Documentation on the same terms and conditions as provided in this Agreement, provided that the Licensee receives no payment, consideration or other financial benefit in exchange for the copy, distribution, or sharing of the Software and Documentation.
4. Use. 
4.1 Limitation on Use:  Except as expressly provided herein, Licensee may not, directly or indirectly, (i) rent, sell, lease, assign, sublicense, transfer or otherwise disclose or distribute to others; (ii) duplicate, reproduce or copy; (iii) disclose, divulge or otherwise make available to any third party; (iv) use except as authorized in this Agreement; or (v) decompile, disassemble, or otherwise analyze for reverse engineering purposes, the Software or Documentation, including all trade secrets and Confidential Information therein.  Licensee may not modify or translate the Software or Documentation without the prior written consent of Licensor.  Licensee may not release the results of any performance or functional evaluation of any of the Software to any third party without prior written approval of Licensor for each such release.  Licensee may not remove, alter, cover or obfuscate any copyright notices, trademark notices or other proprietary rights notices placed or embedded on or in the Software.  Licensee may not cause or permit any third party to do any of the foregoing.
4.2 Third Party Software.  Licensee acknowledges that the Software may contain Third Party Software which is obtained under a license from Licensor's suppliers.  All third party licensors and suppliers retain all right, title and interest in and to such Third Party Software and all copies thereof, including all copyright and other intellectual property rights.  Licensee's use of any Third Party Software shall be subject to and Licensee shall comply with the applicable restrictions and other terms and conditions set forth in such Third Party Software documentation or printed materials, including without limitation an end user license agreement.  By using the Product, Licensee further agrees that Licensee: 
(a) only receives a limited, non-exclusive, non-transferable license to run one copy of the object code version of the Third Party Software on one machine or instrument solely as integrated with, and for running and extracting data from the Software.
(b) may only use the Third Party Software for its internal business purposes and may not act as a service bureau or otherwise commercially provide Third Party Software to others.  
(c) may not copy the Third Party Software onto any public or distributed network; use it as a general SQL server, as a stand alone application or with applications other than the Software under this license; or change any proprietary rights notices which appear in the Software or the Third Party Software.
5. Ownership of Software and Documentation.  Licensee acknowledges and agrees that the Software belongs to Licensor or its licensors.  Licensee agrees that it neither owns nor hereby acquires any claim or right of ownership to the Software and Documentation or to any related patents, copyrights, trademarks or other intellectual property.  Licensor and its licensors retain all right, title and interest in and to all copies of the Documentation and the Software at all times, regardless of the form or media in or on which the original or other copies may subsequently exist.  This license is not a sale of the original or any subsequent copy. All content accessed through the Software is the property of the applicable content owner and may be protected by applicable copyright law. This license gives Licensee no rights to such content.  All suggestions or feedback provided by Licensee or its employees or agents to Licensor with respect to the Software shall be Licensor’s property and deemed Confidential Information of Licensor.  Licensee agrees to deliver to Licensor all test results relating to Products delivered for evaluation purposes promptly upon the request of Licensor.
6. No Support.  Licensor does not guarantee to provide any support for Licensee's use of the Software. 
7. Copyright and Copying.  The Software and the Documentation are copyrighted by Licensor and its licensors.  Licensee may not make any copies of the Software (or this Agreement) except for its own personal use or as otherwise expressly provided herein.  Any and all other copies of the Software and any copy of the Documentation made by Licensee are in violation of this license. 
8. Confidentiality. 
8.1 Confidentiality.  Licensee agrees to: (a) refrain from using Confidential Information except as necessary to exercise its rights herein and (b) use best efforts to preserve and protect the confidentiality of the Confidential Information.  Notwithstanding the foregoing, Confidential Information shall not include information: (i) already publicly known; (ii) otherwise known to Licensee through no wrongful conduct; or (iii) to the extent required to be disclosed by law or court order.  Licensee acknowledges that the Software embodies and contains valuable trade secrets and Confidential Information owned by Licensor, including but not limited to source code. 
8.2 Third Parties.  Third party contractors on Licensee’s site that enter into nondisclosure and use restriction obligations at least as restrictive as those contained herein and otherwise comply with the terms and conditions hereof may use the Software solely to the extent expressly allowed herein.
9. Term and Termination.  This Agreement is effective until terminated.  For evaluation products, either party may terminate this Agreement at any time by delivering notice of its desire to terminate this Agreement to the other party.  Immediately upon the receipt or the sending of such notice, Licensee shall return or destroy all copies of the Software and Documentation in Licensee's possession, custody or control and Licensee shall certify to Licensor in writing that such return or destruction has occurred.  This Agreement automatically terminates if Licensee fails to comply with its terms and conditions.  The following sections of this Agreement survive any expiration or termination hereof: 1 and 5 - 17.
10. Privacy and Data Exchange.  The Software regularly communicates with Licensor during the normal course of operation to obtain and provide updated data feeds.  Licensee agrees that Licensor may collect, store, aggregate, and analyze information about Licensee’s usage of the Software, including without limitation the Software’s features, database, and application server, and Licensee’s error logs, for internal use in order to provide product support and conduct product research. Licensee agrees that Licensor may collect, store, aggregate, analyze, and disclose to other Software users and to the general public the information automatically collected by Licensor about the Licensee’s use of the Software in anonymous, aggregate form, including without limitation information about applications, processes, services, and characteristics of Licensee’s user environment associated with using the Software.  Licensee further understands and agrees that any information Licensee chooses to manually disclose through AppDeploy may be used and disclosed in accord with the foregoing sentence.  Licensee agrees that all interactions with the AppDeploy.com and DellKACE.com website or any website owned or operated by Licensor are governed by the Dell Community Terms of Use, available at: http://en.community.dell.com/content/TOU.aspx.  
11. ACKNOWLEDGMENT BY LICENSEE; DISCLAIMER OF WARRANTIES. LICENSEE AND LICENSOR AGREE THAT THE SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS” AND THAT LICENSOR MAKES NO WARRANTY AS TO THE SOFTWARE OR DOCUMENTATION, INCLUDING WITHOUT LIMITATION UNINTERRUPTED USE, ACCURACY, AND DATA LOSS.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE (EVEN IF LICENSEE KNOWS OR SHOULD HAVE KNOW OF SUCH PURPOSE), RELATED TO THE SOFTWARE OR DOCUMENTATION, ITS USE OR ANY INABILITY TO USE IT, THE RESULTS OF ITS USE AND THIS AGREEMENT.  
12. LIMITATION OF LIABILITY.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY DAMAGES, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, INCIDENTAL DAMAGES EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  LICENSEE AGREES THAT IT SHALL HAVE THE SOLE RESPONSIBILITY FOR PROTECTING ITS DATA, BY PERIODIC BACKUP OR OTHERWISE, USED IN CONNECTION WITH THE SOFTWARE.
13. Modifications to the Agreement.  Licensor reserves the right to alter the terms in this Agreement at any time. If the alterations constitute a "material change" to the Agreement, Licensor will notify Licensee. What constitutes a "material change" will be determined at Licensor's sole discretion, in good faith and using common sense and reasonable judgment, but will only include those changes that materially affect Licensee's use of the Products or rights under this Agreement. Notice will be considered to have been delivered once sent.  Licensee agrees to review the latest version of the Agreement on Licensor's website periodically to remain aware of any non-material modifications to the Agreement about which Licensee is not alerted by Licensor.  The Agreement available on the web site will be dated so as to make clear what version is currently in force.  Any use of the Products after alteration of the Agreement will constitute acceptance by Licensee of such changes. Licensee's sole remedy should Licensee not agree with the altered terms shall be to cease Licensee's use of the Products and to comply with Licensee's termination obligations outlined in Section 9 of this Agreement.
14. No Assignment.  Except as expressly provided herein, Licensee may not assign or otherwise transfer in any way any of the rights and obligations arising out of this Agreement without the prior written consent of Licensor.
15. Applicable Law.  This license will be governed by the laws of the State of Texas, without reference to conflicts of laws principles.  The United Nations Convention on Contracts for the Sale of Goods does not apply to this license.  Any action brought hereunder shall be brought in the state or federal courts  located in Travis or Williamson County, Texas and both parties hereby consent to the exclusive personal jurisdiction and venue of such courts.
16. Export Controls.  The Software and Documentation and the underlying information and technology may not be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) any country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders.  By downloading or using the Software and/or Documentation, Licensee is agreeing to the foregoing and Licensee represents and warrants that it is not located in, under the control of, or a national or resident of any such country or on any such list and Licensee agrees to comply with all export laws and other applicable laws. 
17. U.S. Government End Users.  The Software and Documentation each were developed by private financing and constitute “Commercial Items,” as that term is defined at 48 C.F.R. §2.101.  The Software consists of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212. Consistent with 48 C.F.R. §12.212 and 48 C.F.R. §227.7202-1 through 227.7202-4, all U.S. Government End Users acquire only those rights in the Software and the Documentation that are specifically provided by this Agreement.  Consistent with 48 C.F.R. §12.211, all U.S. Government End Users acquire only technical data and the rights in that data customarily as specifically provided in this Agreement.
18. No Other Agreements.  This Agreement and the Dell Terms of Use, available at http://en.community.dell.com/content/TOU.aspx , both accepted upon clicking "I Accept," constitute the entire agreement between the parties with respect to the Software and the Documentation, and supersede any and all prior and contemporaneous written or oral agreements, promises, representations, warranties, and understandings of the parties regarding the same subject matter.