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SOFTWARE LICENSE FOR BRIGHTWORK® SOFTWARE FROM AIMWARE
By downloading, installing or using this Software, you agree to these terms and conditions. If you do not agree to the terms and conditions set forth below, do not download, install, access or use the Software. If you have already obtained this Software and do not agree to these terms, you should immediately return the software unused and uninstalled for a full refund.
For the purposes of this EULA, if Licensee takes delivery of the Software in North America, the Licensor shall be Aimware, Inc., and if Licensee takes delivery of the Software anywhere else in the world the Licensor shall be Aimware, Ltd. In either case, the licensor of the Software shall be referred to herein as “Aimware.”
1. License Grant. Subject to this EULA, Aimware grants to Licensee the non-exclusive and non-transferable license to install, use and operate the Software for Licensee’s own internal business use at Licensee’s place of business or at a secure location managed by a secure and reliable hosting vendor. Licensee may provide access to the Software for up to the maximum number of servers and/or the maximum number of Users as defined by the BrightWork proposal or the BrightWork Price List for the Software license that the Licensee has purchased. As used in this Agreement a “User” is a Named Person accessing the Software or using the Software in any way. As used in this Agreement, a “Server” is a single machine where a single instance of the BrightWork Software resides. Licensee is responsible for the acts or omissions of all persons that Licensee permits to use the Software. If the Licensee has purchased the BrightWork Reporter Software Product, the use specifically excludes the Project Management functionality, provided by BrightWork. Aimware may contact Licensee on a periodic basis to confirm that the number of Named Users accessing the Software under the direction of the Licensee does not exceed the number of Named User Licenses purchased by Licensee. Licensee is required to respond to these requests in a timely manner with an accurate count of Named Users.
2. Limited Warranty. Aimware warrants that the Software will perform substantially in accordance with the accompanying materials for a period of 30 days from the date of receipt (the “Limited Warranty”). Any supplements, updates or upgrades to the Software, including without limitation, any provided to Licensee pursuant to Support Services (as defined below) after the expiration of the 30 day period are not covered by any warranty or condition, express, implied or statutory. The Limited Warranty is void if failure of the Software has resulted from accident, abuse, misapplication, abnormal use or a virus. THE LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES BY AIMWARE. EXCEPT AS EXPRESSLY STATED HEREIN, AIMWARE DISCLAIMS ALL THE EXPRESS AND IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABLE QUALITY OR MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
3. Exclusive Remedy. Aimware's entire liability and Licensee’s exclusive remedy for any breach of the foregoing warranty shall be, at Aimware's option from time to time exercised subject to applicable law, (a) return of any licensee fees paid by Licensee for the Software, and/or (b) repair or replacement of the Software that does not meet the Limited Warranty. Any replacement Software will be warranted for the remainder of the original warranty period or ten (10) days, whichever is longer.
4. Limitations and Reservation of Rights. Licensee may not reverse engineer, decompile, or disassemble the Software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. This EULA does not grant Licensee any rights in connection with any trademarks or service marks of Aimware. Licensee may not rent, lease, or lend the Software to third parties.
5. Intellectual Property Rights. All title and intellectual property rights in and to the Software are reserved. The Software is protected by applicable copyright or other intellectual property laws and treaties. The Software is licensed, not sold.
6. Damage Exclusion. Aimware shall not be liable for any incidental, special, punitive or consequential damages, including, without limitation, lost revenue, lost profits or lost or inaccurate data under any circumstances. Under no circumstance may Aimware and its licensors, dealers, distributors or resellers be liable in the aggregate for more than the licensee fee paid for this Software.
7. Support and Maintenance. Licensee is required to purchase support and maintenance (“Support Services”) covering the one-year period following the date upon which Licensee receives the Software, including any software key required for use. Thereafter, Licensee may, at its option renew Support Services on an annual basis; provided, that Licensee pays the Support Fee (as defined below) for the applicable period. The terms set forth in Sections 9 to 12 shall apply to all Support Services.
8. Definitions Relevant to Support. Capitalized terms used herein shall have the meanings set forth below:
- “Error” is defective Software distribution media and/or a Software function or operation that is materially inconsistent with the functionality stated in the accompanying documentation.
- “Release” means a revision, enhancement, or new version of the Software or accompanying documentation designed to correct an Error or change, enhance or improve the Software.
- “Designated Support Provider” means a third party appointed by Aimware to provide Support Services. If Licensee purchased its Software license from a reseller, such reseller shall be automatically deemed Licensee’s Designated Support Provider and Licensee will direct its requests for Support Services from such reseller, unless Licensee receives written notice to the contrary.
- “Support Contact” means the authorized individual(s) registered with Aimware’s Technical Support Team with whom Aimware may communicate when providing Support Services. The Support Contact may be Licensee (if an individual) or an employee or a consultant of Licensee. The Support Contact shall be generally knowledgeable about the technical aspects of the use of the Software and the operating environment.
9. Software Error Correction Services Provided. Support Services provided under this EULA are as follows:
- Correction of Errors. Aimware will use reasonable efforts to correct reproducible Errors in the Software when reported to Aimware in accordance with reporting procedures that Aimware may issue from time to time. Aimware may modify the Software, may provide a “work-around” consisting of programming and operating instructions, may edit or alter the Software or may take other corrective steps. Aimware may respond to reported Errors by e-mail, phone, mail or fax. An e-mail or mail response may include Software patches or replacement programs, at Aimware’s discretion. You may obtain services to respond to Errors by (i) submitting written requests for assistance regarding Software Errors to Aimware by fax, mail or e-mail or (ii) telephoning Aimware’s Technical Support Team; provided, that Aimware may require that the request also be in writing or in e-mail form.
- Timing of Response. Aimware will use reasonable efforts to respond within one (1) business day after Aimware has received the request for assistance with any Error, and will seek to respond sooner to Errors that Aimware deems critical or serious.
- Electronic Access and Support. Aimware may, but is not obliged to, use reasonable efforts to address Software Errors by accessing Licensee’s system via Internet link; provided, that Licensee provides access to their installation of the Software.
- Subsequent Releases. Aimware shall use reasonable efforts to remove reported Errors from subsequent Releases of the Software.
- Telephone Hours. Telephone assistance under this EULA shall be available Mon – Fri 9am to 5pm Eastern Standard Time, excluding all US Federal and applicable state holidays.
- Help Desk Support. Licensee’s Support Contact may call Aimware’s Technical Support Team, which will be staffed by personnel qualified to render advice relating to the use of Software. The Aimware support personnel will provide reasonable assistance and advice to Licensee in utilizing the Software.
- New Releases. Aimware may, from time to time, issue new Releases of the Software generally to its licensees for the Software containing Error corrections, minor enhancements, and, in some instances, new functionality or major enhancements. As long as this EULA is in effect, Licensee is not in material breach, and Licensee has paid all Support Fees hereunder, Aimware will provide Licensee one copy of each such new release, without additional charge. Aimware will provide reasonable assistance to help Licensee install each new Release; provided, that such assistance, if provided at Licensee’s facility, shall be subject to such supplemental charges as Aimware may set from time to time. New Releases are subject to the terms and conditions of this EULA. Aimware is not otherwise obligated to provide maintenance or support at Licensee’s place of business.
- Provider of Support Services. Aimware may provide Support Services by itself or (wholly or in part) by means of a Designated Support Provider, at Aimware’s sole discretion. If Aimware so directs, Licensee will direct its requests for Support Services to a Designated Support Provider.
- Changes in Support Services. Aimware reserves the right to modify the Support Services by providing no less than 30 days written notice; provided, that Aimware may not materially reduce its level of Support Services for the current annual period for which Licensee has prepaid. Licensee shall not be entitled to Support Services if it fails to pay the applicable Support Fee.
10. Limitations of Software Maintenance.
- Software Versions. Aimware shall not be responsible for correcting Errors in any version of the Software other than the most recent Release of the Software, except that Aimware will use reasonable effort to continue to support any superseded Releases for a period of 12 months unless otherwise agreed to in writing by Aimware.
- Exclusions. The following are not subject to Support Services or any warranty by Aimware under this EULA:
- Software that has been altered or modified.
- All additional service or software provided by Aimware, including, but not limited to, applications design, custom programming, data conversions, lost data recovery, or purchase recommendations.
- Errors created by Licensee act or omission or due to any hardware malfunction.
- Errors that do not materially impair or affect the operation of the Software.
- Software used on a computer system other than that for which it is intended as stated in the applicable documentation.
11 Support Fees.
- Annual Fees. Licensee agrees to pay a fee for the Support Services that Aimware renders under this EULA (“Support Fee”). The Support Fee is payable in advance. The Support Fee is calculated based on the number of server licenses or individual licenses purchased to date. The Support Fee is subject to change upon 30 days prior written notice; provided, that the Support Fee in effective for the then current term of Licensee’s Support Services shall remain in effect and the revised Support Fee shall not take effect unless and until Licensee renews Support Services. Aimware has no obligation to provide Support Services if Licensee fails or declines to pay the Support Fee when due.
- Reinstatement of Support. If Licensee fails to pay the Support Fees, and Aimware’s obligations hereunder under this EULA are discharged, Aimware may, in its discretion, reinstate Support Services upon Licensee’s payment of the then applicable reinstatement fee and/or catch up fees.
12. Licensee Responsibilities. Licensee agrees to use the Help-Desk Support Services under this EULA only if the Software fails to work as set forth in the documentation or when the documentation is unclear. Licensee agrees to furnish descriptions of Errors in the form requested by Aimware’s Support Services staff. Licensee also agrees to assist Aimware’s efforts to duplicate a reported Error. Licensee agrees to make back-up copies of all data and to use reasonable anti-virus protections measures.
13. Customer Modifications. Any custom modifications or applications for the Software that Aimware may supply are provided “AS IS” and are not included within Support Services; provided, that all damage and remedy limitations and exclusions under this EULA will apply.
14. Termination of EULA.
- The Support Services portion of this EULA will remain in effect for the period of one (1) year from inception. Licensee may renew the Support Services under this EULA for additional one-year terms, by payment in advance, of the then prevailing Support Fee for all licenses purchased to date. Aimware may terminate the Support Services portion of this EULA upon 12 months prior written notice.
- Either party may terminate this EULA upon a material default by the other party not cured within 30 days of written notice. In such event, this EULA is terminated Licensee must discontinue all use of the Software and destroy all copies of the Software and its documentation.
15. Applicable Law. If the Licensor is Aimware, Inc., this EULA is governed by the laws of the Commonwealth of Massachusetts and applicable U.S. federal law and the state and federal courts located in Boston Massachusetts USA shall have exclusive jurisdiction and venue over any claim arising from this EULA, the Software, or the relationship of the parties. If the Licensor is Aimware, Ltd., this EULA is governed by the laws of Ireland and the courts located in Dublin, Ireland shall have exclusive jurisdiction and venue over any claim arising from this EULA, the Software, or the relationship of the parties. The parties hereby submit to the jurisdiction of the applicable courts, as specified above. Licensee agrees to comply with applicable US export control law.
16. Entire Agreement. This EULA (including any addendum or amendment to this EULA which is included with the Software) is the entire agreement between Licensee and Aimware relating to this subject matter and it supersedes all prior oral or written communications, agreements, proposals and representations, including without limitation, the terms of any Licensee order, conformation or other form document..