3D-SECURE END USER LICENSE AGREEMENT
THIS 3D-SECURE END USER LICENSE AGREEMENT (THIS "AGREEMENT") IS BETWEEN /N SOFTWARE AND YOU. BY CLICKING ON THE "I AGREE" BUTTON, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO ALL OF THE TERMS AND CONDITIONS SET FORTH BELOW. IF YOU DO NOT AGREE TO ANY OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, /N SOFTWARE IS UNWILLING TO LICENSE THE SOFTWARE TO YOU, AND YOU MUST NOT INSTALL THE SOFTWARE. THE "EFFECTIVE DATE" OF THIS AGREEMENT IS THE DATE UPON WHICH YOU CLICK THE "I AGREE" BUTTON. For the purpose of this Agreement, you and, if applicable, such company (or other entity) constitutes "you", "your" or "Licensee" and "/N SOFTWARE", "us", "our" or "we" refers to /N SOFTWARE inc.,101 Europa Drive, Suite 100, Chapel Hill, NC 27517, and its Affiliates, the owner and provider of the Software. Unless defined elsewhere in this Agreement, terms in initial capital letters have the meanings set forth in Section 11.
1. LICENSE RIGHTS.
1.1 License Rights. We provide the Software according to the specific License Model purchased by Licensee for the Software as stated in the Order Form and set out in Section 12. If no License Model is specified in the Order Form, the License Model for which we have been paid Fees by you will apply. For the avoidance of doubt, if a License Model as set out in Section 12 is not indicated on your Order Form then it does not apply to your purchase. The license grant covers any updates, upgrades or new releases, if any are provided to you by us and any copies you are permitted to make hereunder and any available Documentation. Any references to a "sale" or a "purchase" of the Software in this or any other document means "license" in accordance with the terms contained in this Agreement. You may make a reasonable number of backup copies of the Software and Documentation for internal, Non-Commercial, Non-Production use. Unless stated otherwise, all titles, trademarks and copyright and restricted notices in the Software must be reproduced in any copies you are permitted to make hereunder.
1.2 Service Providers. We acknowledge and agree that the Software may, subject to the terms of this Agreement, be used by your service provider(s), including cloud hosting providers, independent contractors and consultants ("Service Provider(s)") solely for the purposes of providing services for your benefit and solely for the duration of such services. The rights accorded to the Service Provider shall be those permitted in this Agreement and no duplication of the quantities of Software licenses purchased is permitted. You are fully responsible for the Service Provider's use of the Software in accordance with the terms of this Agreement and any Service Provider's breach of this Agreement.
1.3 Delivery and Acceptance. The Software provided hereunder will be delivered electronically. We provide trial licenses of the Software for testing and pre-acceptance before purchase and therefore, delivery is deemed complete and accepted when the Software is made available to you.
1.4 Compliance. We, or our designee, has the right, with at least ten (10) business days' prior written notice and not more than once every twelve (12) months, to conduct an audit during your normal business hours to verify your compliance with this Agreement. You agree to complete any request for information within ten (10) business days of the request in a form and format reasonably satisfactory to us. You warrant to us that all information provided in the course of the audit is true, accurate and complete. You agree to immediately remit to us any shortfall in payment disclosed by such software audit including any late charges. In lieu of such audit, and upon written request at any time, you will certify your compliance with the terms of this Agreement in writing, signed by an officer or senior executive.
2. PREMIUM SUPPORT. Upon payment of fees and if indicated on the Order Form, we will provide you with the Premium Support services for the Software, valid at the Effective Date of this Agreement and available at https://www.nsoftware.com/support/. Details of the Premium Support services may be modified from time to time, but we warrant to you that no such modification will materially degrade the Premium Support services.
3. FINANCIAL TERMS. You agree to pay us the fees indicated in the Order Form. Fees are exclusive of any taxes. You acknowledge and agree all Order Forms are non-cancelable and all fees are non-refundable. In the event that your credit card is declined for any reason, all fees are still due and owing to us and you will promptly provide us with another credit card for payment purposes. Fees are owed and are to be paid in exchange for the rights granted and services made available hereunder and not based on your actual use of the Software or Premium Support. All invoices for the Software or Premium Support are due and payable within thirty (30) days of receipt. If we don't receive timely payment, we reserve the right to charge a late fee equal to the lesser of one and half percent (1.5%) compounded monthly of the amount due or the maximum amount allowed by law in addition to our cost of collection. You are responsible for all applicable taxes including, without limitation, federal, state and local sales, use, goods and services, value-added, export or import or equivalent "indirect" taxes and duties on your purchase of the Software or Premium Support as provided herein.
4. OWNERSHIP. As between the parties, all right, title, and interest in the Software, Documentation, our Confidential Information (as defined below), and any other materials furnished or made available hereunder, including any copies made by you, corrections, bug fixes, enhancements, updates, upgrades, new releases or other modifications and derivatives, including custom modifications, to the Software and all other deliverables, modifications, enhancements, and derivative works thereof, and all Intellectual Property Rights therein are and remain our property. No implied licenses are granted hereunder. We reserve all rights not expressly granted hereunder. As between the parties, the Application and your Confidential Information (as defined below) and all Intellectual Property Rights therein are and remain your property.
6. CONFIDENTIALITY. "Confidential Information" means any non-public information that is designated "confidential" or that a reasonable person should understand is confidential, including, but not limited to, the terms of this Agreement, the Software, or related performance test results derived by you, including but not limited to benchmark test results. Neither party will disclose Confidential Information to any third party without the disclosing party's prior consent. Confidential Information may only be disclosed to individuals that need to know such information, and on the condition that the individual is subject to a written agreement to protect information with terms as protective as this Agreement. For the purposes of this section, the definition of /N SOFTWARE and Licensee includes Affiliates of either party. Confidential Information remains the sole property of the disclosing party; except for rights explicitly granted in this Agreement, the receiving party does not acquire any rights to such Confidential Information. The duty to protect Confidential Information does not apply to information that is shown to be: (a) available to the public other than by a breach of a confidentiality obligation; (b) rightfully received from a third party not in breach of a confidentiality obligation; (c) independently developed by one party without use of the Confidential Information of the other; (d) known to the recipient at the time of disclosure (other than under a separate confidentiality obligation); (e) produced in compliance with applicable law or court order, provided the other party is given reasonable advance notice of the obligation to produce Confidential Information (to the extent legally permitted) and reasonable assistance, at the disclosing party's cost, if the disclosing party wishes to contest the disclosure. Money damages may not be a sufficient remedy for a breach of confidentiality. If either party breaches the confidentiality obligations, the non-breaching party may seek injunctive or other equitable relief without the necessity of posting a bond even if otherwise normally required. Such injunctive or equitable relief is in addition to all other rights and remedies available at law or in equity. You agree that if you provide us with any suggestions, comments, or other feedback about our Confidential Information ("Feedback") such Feedback is given voluntarily. You also agree that even if you designate such Feedback as confidential, unless the parties enter into a separate subsequent written agreement, the Feedback shall not be confidential and we shall be free to use, disclose, reproduce, license, or otherwise distribute the Feedback in our sole discretion without any obligations or restrictions of any kind, including without limitation, your Intellectual Property Rights.
7. WARRANTY; DISCLAIMER. You represent and warrant that: (a) all users authorized by you will abide by the terms of this Agreement; and (b) you will comply with all applicable laws, regulations, rules, orders and other requirements, now or hereafter in effect, of any applicable governmental authority, in your performance of this Agreement. Notwithstanding any terms to the contrary in this Agreement, you will remain responsible for acts or omissions of all users authorized by you to the same extent as if such acts or omissions were undertaken by you. THE SOFTWARE AND PREMIUM SUPPORT ARE PROVIDED ON AN "AS IS" OR "AS AVAILABLE" BASIS WITHOUT ANY REPRESENTATIONS, WARRANTIES, COVENANTS OR CONDITIONS OF ANY KIND. WE DO NOT WARRANT THAT SOFTWARE OR PREMIUM SUPPORT WILL BE FREE FROM ALL BUGS, ERRORS, OR OMISSIONS. WE DISCLAIM ANY AND ALL OTHER WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE SOFTWARE OR PREMIUM SUPPORT WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY AND ALL (I) WARRANTIES OF MERCHANTABILITY, (II) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT WE KNOW, HAVE REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE), AND (III) WARRANTIES OF NONINFRINGEMENT OR CONDITION OF TITLE. YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE NOT RELIED ON ANY WARRANTIES.
8. LIMITATION OF LIABILITY. EXCEPT FOR ANY ACTS OF FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT, IN NO EVENT WILL WE BE LIABLE TO YOU OR ANY THIRD PARTY CLAIMING THROUGH YOU FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, ANY INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SOFTWARE OR PREMIUM SUPPORT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OR ARE OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR ANY ACTS OF FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT, IN NO EVENT WILL OUR TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AGGREGATE OF THE AMOUNTS PAID OR PAYABLE BY YOU TO US, IF ANY, UNDER THIS AGREEMENT IN THE TWELVE MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION.
9. TERM AND TERMINATION GENERALLY. Except as otherwise stated herein, this Agreement will remain in effect until terminated. The term for any Software starts on the Effective Date of the Order Form and continues as indicated on the Order Form ("Term"). Except as otherwise specified in the applicable Order Form, subscription terms are for twelve (12) months from the Effective Date ("Subscription Term") and upon your payment of renewal fees will renew for successive twelve (12) month periods, starting the day following the expiration of the previous Subscription Term, unless and until terminated by either party in accordance herewith or unless either party provides written notice of nonrenewal to the other party at least 30 days prior to the end of the then-current Subscription Term. We may increase pricing applicable to the renewal of any then-current Subscription Term by providing you with notice thereof, including by email, at least thirty (30) days prior to the end of such Term. Unless otherwise indicated on an Order Form, you may terminate this Agreement or any Order Form at any time without cause. However, we will not provide refunds if the Agreement or an Order Form is terminated without cause. Without limiting other remedies it may have, either party may terminate this Agreement or any Order Form immediately on notice if (i) the other party materially breaches the Agreement or an Order Form, and fails to cure the breach within thirty (30) days after receipt of notice of the breach; or (ii) the other party becomes insolvent. Upon termination and in addition to the terms set forth in the License Models section below, the following will apply: (a) All amounts due under any unpaid invoices will become due and payable immediately; and (b) If we are in breach, you will receive a prorated refund for any fees paid in advance. We may suspend your use of the Software and Premium Support as applicable without terminating this Agreement during any period of material breach. We will give you reasonable notice and a chance to cure the breach before suspending your use of the Software and Premium Support. Suspension will only be to the extent reasonably necessary until the breach is cured. The parties' rights and obligations under this section, the applicable terms in the section entitled "License Models" and sections entitled "Financial Terms", "Ownership", "Confidentiality", "Warranty; Disclaimer", "Limitation of Liability", and "General" survive the termination of this Agreement and/or an Order Form.
11. DEFINITIONS: (a) Affiliates means entities, regardless of corporate status, controlled by, controlling or under common control with a party, respectively, or officers, directors, shareholders, employees or agents of any of the foregoing. (b) Application means any application, program or other software that you develop using the Software. An Application must represent a significant functional and value enhancement to the Software. (c) Authorized User means one named person, employee, contractor or temporary worker authorized by you to use the Software for personal use or while performing duties within the scope of their employment or assignment. (d) Commercial means any use or handling of the Software by any person or entity for financial reasons, whether or not profitable. (e) Core means a core of a CPU made up of an independent processor combined onto a single integrated circuit or silicon chip, in both virtualized and/or non-virtualized environments, and regardless of whether used in a Production or Non-Production environment. (f) Developer means any named identifiable individual person, not necessarily named at the time of a license grant, regardless of whether or not the individual is actively using the Software at any given time, designated by you to do any of the following: (1) build, compile, assemble, test or otherwise cause to be executed any application programs that rely on the Software as a component; (2) use or execute any Software programs for development, testing, or support purposes; (3) package or otherwise prepare Software components for redistribution as part of another program or application; or (4) have possession of any Software resources or files for any purposes other than archiving. (g) Development Workstation means a physical computer owned or controlled by you that is accessed and used for software development and testing purposes by only one (1) Developer and with respect to use of the Software does not participate in a shared development environment meaning software development occurring in a network or computer infrastructure shared by multiple people; and/or software development occurring on a computer that is not dedicated to use only by your Developer. A Development Workstation may, for your Developer's sole use, host one or more virtual machines containing the Software. (h) Instance means a loaded operating system running either on a physical computer or within a virtual environment or an equivalent environment. Each virtual environment on a physical computer is deemed an instance. (i) Machine means an attended or remotely controlled desktop, workstation or computer where the Software is loaded, that is operated by no more than one person at a time. (j) Non-Commercial means any use of the Software which (1) is not undertaken for profit; (2) is not intended to produce software, works, services, or data for commercial use; or (3) is neither conducted, or funded, by a person or an entity engaged in the commercial use, application, development or exploitation of works similar to the Software. (k) Non-Production means a non-operational environment into which the Software may be installed, which is not processing live data, which is not running any of your operations and which has not been deployed to permit any users to access live data. Non-Production environments include development, quality assurance and test environments. (l) Order Form means any written order, whether in physical or electronic format, for Software or Premium Support, including any document issued by you requesting Software or Premium Support ("Purchase Order"), on-line orders, or other form of an ordering document delivered to or made available to us through a medium or channel approved by us, which is subject to, and incorporates by reference this Agreement or other terms negotiated by the parties. (m) Production means an operational environment into which the Software has been installed, which is processing live data and which has been deployed so that the intended users of the environment are able to access the live data. Production environments include disaster recovery, failover, and high availability environments. (n) Server means a physical or virtual machine, which may be limited by a certain number of Cores as set forth in an Order Form, which has a server operating system and/or where more than one person can simultaneously use the computer either by direct or remote access. (o) Software means our proprietary secure software as indicated on an Order Form.
12. LICENSE MODELS
As noted in the Order Form, during the applicable term and in consideration of your payment of the applicable fees, and subject to the terms, conditions and restrictions set forth in this Agreement:
12.1 Trial License
12.1.1 License Grant. We grant you a free-of-charge, non-assignable, non-sublicensable, non-exclusive, worldwide right and license for one (1) Authorized User to install and use one (1) copy of the Software solely for internal Non-Production purposes to evaluate the Software and build a prototype to determine whether to purchase a license to the Software.
12.1.2 Specific Restrictions. You may not download more than one (1) copy of the Software unless otherwise authorized by us. You may not use the Software for any other purpose. Unless you pay the applicable fee for the Software, the Software may become inoperable and, in any event, your right to use Software automatically expires at the end of the Trial Period. We may terminate your license to the trial version of the Software upon written notice at any time for any reason and without liability of any kind. If you subsequently license a non-trial version of the Software, your license to the trial version of the Software shall immediately terminate.
12.1.3 Term; Termination. You may only use the Software for thirty (30) days from the Effective Date, unless otherwise authorized by us ("Trial Period").
12.2 3-D Secure Server - Server License
12.2.1 License Grant. We grant you a non-assignable, non-sublicensable, non-exclusive, worldwide right and license to install, use, access and deploy the Software at runtime on the number of on-premise Server(s) as listed in the Order Form for Commercial purposes.
12.2.2 Specific Restrictions. (A) The total count of Server(s) where the Software is installed must not exceed the number of licenses purchased on the applicable Order Form. (B) For the purpose of this license grant, Licensee may activate a Server License on a Development Workstation, but not vice-versa, and in such event, the defined term "Server" as used herein is then deemed to include the term "Development Workstation." (C) The allocation of Server Licenses is permanent and cannot be shared or exchanged between Servers. Notwithstanding the above, and no more frequently than twice per year with our consent, Server Licenses may be re-allocated to another Server in the event the assigned Server is no longer functional, or the hardware or OS is being upgraded.
12.2.3 Term; Termination. The term of the 3-D Secure Server - Server License shall be for a Subscription Term not to exceed twelve (12) months unless otherwise stated in the applicable Order Form. Upon expiration or termination of the Subscription Term by you or by us for any reason, including but not limited to non-payment of renewal Subscription License Fees, the 3-D Secure Server - Server License grant will immediately terminate and you will cease using and uninstall the Software.
12.3 3-D Secure Server - Development Workstation License
12.3.1 License Grant. We grant you a non-assignable, non-sublicensable, non-exclusive, worldwide right and license to install the Software on the number of Development Workstations indicated in the Order Form in order to internally use the Software to create, develop and test Applications.
12.3.2 Specific Restrictions. The allocation of Development Workstation Licenses is permanent and cannot be shared or exchanged between Development Workstations. Notwithstanding the above, and no more frequently than twice per year with our consent, Development Workstation Licenses may be re-allocated to another Development Workstation in the event the assigned Development Workstation is no longer functional, or the hardware or OS is being upgraded.
12.3.3 Term; Termination. The term of the 3-D Secure Server - Development Workstation License shall be for a Subscription Term not to exceed twelve (12) months unless otherwise stated in the applicable Order Form. Upon expiration or termination of the Subscription Term by you or us for any reason, including but not limited to non-payment of renewal Subscription License Fees, the 3-D Secure Server - Development Workstation License grant will immediately terminate and you will cease using and uninstall the Software.
12.4 3-D Secure Server - Cloud License
12.4.1 License Grant. We grant you a non-assignable, non-sublicensable, non-exclusive, worldwide right and license to install, use, access and deploy at runtime the Software on devices that you own, lease or otherwise control (including for such purpose the hardware of a third party hosting provider that hosts the Software for your benefit, such as Amazon Web Services) for the number of Instances indicated in the Order Form for Commercial purposes.
12.4.2 Specific Restrictions. The total count of Instances must not exceed the number of licenses purchased on the applicable Order Form. For the purposes of this license grant, Licensee may activate a Cloud License on a Development Workstation, but not vice-versa, and in such event, the defined term "Instance" as used herein is then deemed to include the term "Development Workstation."
12.4.3 Term; Termination. The term of the 3-D Secure Server - Cloud License shall be for a Subscription Term not to exceed twelve (12) months unless otherwise stated in the applicable Order Form. Upon expiration or termination of the Subscription Term by you or by us for any reason, including but not limited to non-payment of renewal Subscription License Fees, the 3-D Secure Server - Cloud License grant will immediately terminate and you will cease using and uninstall the Software.
12.5 3-D Secure Server - Enterprise License
12.5.1 License Grant. We grant you non-assignable, non-sublicensable, non-exclusive, worldwide right and license to internally install and use an unlimited number of copies of the Software by an unlimited number of users, on an unlimited number of computers, servers and networks within the possession and control of Licensee solely for use within Licensee's enterprise.
12.5.2 Term; Termination. The term of the 3-D Secure Server - Enterprise License shall be for a Subscription Term not to exceed twelve (12) months unless otherwise stated in the applicable Order Form. Upon expiration or termination of the Subscription Term by you or by us for any reason, including but not limited to non-payment of renewal Subscription License Fees, the 3-D Secure Server - Enterprise License grant will immediately terminate and you will cease using and uninstall the Software.
12.6 3-D Secure Mobile SDK - OEM White Label Distribution
12.6.1 License Grant. We grant you a non-assignable, non-exclusive, royalty-free, worldwide right and license to distribute and sublicense the 3-D Secure Mobile SDK as part of your application development toolkit with your branding to an unlimited number of developers, including your customer's developers for the development of mobile applications which are designed to exclusively connect to your payment services. The mobile applications that you or your customer's developers create can be deployed to an unlimited number of end users.
12.6.2 Specific Restrictions. You are fully responsible for your customer's developer's use of the 3-D Secure Mobile SDK in accordance with the terms of this Agreement and your customer's developer's breach of this Agreement.
12.6.3 Term; Termination. The term of the 3-D Secure Mobile SDK - OEM White Label Distribution license shall be for a Subscription Term not to exceed twelve (12) months unless otherwise stated in the applicable Order Form. Upon expiration or termination of the Subscription Term by you or by us for any reason, including but not limited to non-payment of renewal Subscription License Fees, you and any of your customer's developers using the 3-D Secure Mobile SDK shall immediately cease development and deployment of mobile applications containing the 3-D Secure Mobile SDK to any end user mobile devices. Existing licenses of mobile applications containing the 3-D Secure Mobile SDK which have been deployed to end users will survive the termination or expiration of this Agreement and continue to be validly licensed on those mobile devices where originally deployed.
12.7 3-D Secure Mobile SDK - OEM Private Label Distribution
12.7.1 License Grant. We grant you a non-assignable, non-exclusive, non-sublicenseable, royalty-free, worldwide right and license to use the 3-D Secure Mobile SDK to develop an unlimited number of mobile applications for your own use and the right for an unlimited number of your customer's developers to use the 3-D Secure Mobile SDK (provisioned by /N SOFTWARE) to develop mobile applications which connect solely with your services. The mobile applications that you or your customer's developers create can be deployed to an unlimited number of end users. For the avoidance of doubt, /N SOFTWARE will provision the 3-D Secure Mobile SDK license directly to your customer's developers.
12.7.2 Specific Restrictions. (i) The 3-D Secure Mobile SDK shall not be packaged as part of your application development toolkit and must be downloaded and installed from the /N SOFTWARE website. /N SOFTWARE reserves the right to verify eligibility of third party developers to use the 3-D Secure Mobile SDK in conjunction with your application development toolkit and we shall not unreasonably withhold or delay access to the 3-D Secure Mobile SDK once eligibility has been verified; (ii) Any mobile application(s) developed using the 3-D Secure Mobile SDK must be designed to exclusively connect to your payment services; and (iii) You are fully responsible for your customer's developer's use of the 3-D Secure Mobile SDK in accordance with the terms of this Agreement and your customer's developer's breach of this Agreement.
12.7.3 Term; Termination. The term of the 3-D Secure Mobile SDK - OEM Private Label Distribution license shall be for a Subscription Term not to exceed twelve (12) months unless otherwise stated in the applicable Order Form. Upon expiration or termination of the Subscription Term by you or by us for any reason, including but not limited to non-payment of renewal Subscription License Fees, you and any of your customer's developers using the 3-D Secure Mobile SDK shall immediately cease development and deployment of mobile applications containing the 3-D Secure Mobile SDK to any end user mobile devices. Existing licenses of mobile applications containing the 3-D Secure Mobile SDK which have been deployed to end users will survive the termination or expiration of this agreement and continue to be validly licensed on those mobile devices where originally deployed.
Last Revised 08/03/2020