END USER LICENSE AGREEMENT (“EULA”) FOR MERIDIAN SOFTWARE
1. Software. The term “Software” includes all Meridian Project Systems, Inc. doing business as Meridian Systems (“Meridian®”) and third party (“Supplier”) software provided with this license, and includes any accompanying documentation (the “Documentation”). The term “Software” also includes any updates of the Software provided to Licensee by Meridian at its option. Subject to the terms of this Agreement, Meridian grants to Licensee, and Licensee accepts, a personal, non-exclusive, and nontransferable (except as set forth below) license to use the object code version of the Software in accordance with the Documentation.
2. License Types/Grants/Use.
(i). Authorized User shall mean a collective reference to Self-Hosted Users and Meridian Managed and SaaS Hosted Users.
(ii). Hosted User Information shall refer to personally identifying information, such as the user’s name, provided by Hosted Users to Meridian hosted applications. Hosted User Information shall not mean or be interpreted to be Project Content; and
(iii). Meridian Content shall mean proprietary information, materials, databases and other content owned by or licensed to Meridian, whether or not proprietary, which are made available to each self-hosted user through Meridian self-hosted Software or to each hosted user through Meridian SaaS.
(iv). Meridian Hosted Software applications shall mean Meridian’s software applications known as Proliance® or Prolog® made available over the Internet by Meridian through ProjectTalk, Prolog – Managed Host, Prolog Sky, Proliance ASP, or Proliance – Managed Host, in object code form only.
(v). Meridian Self-Hosted Software applications shall mean Meridian’s software application known as Prolog®, Proliance® or Encompass®, in object code form only, that has been purchased by Licensee.
(vi). Project Content shall mean any content originally provided by Licensee, or an authorized user, to Meridian Hosted Applications, or Meridian Self-Hosted software in the course of its normal use and operation. Project Content does not include Hosted User Information.
(vii). Self-Hosted User shall mean Licensee or Licensee’s employee, consultant, or independent contractor who has received a valid Site Key from Meridian provided that for each individual using the Meridian Self-Hosted Software a separate and valid license for each such individual has been purchased.
B. Named Users License(s):
(i). Licensee may use the Software provided that a separate and valid license has been purchased specifically for each user under this Agreement. Each user constitutes a Named User. A Named User can be changed by Licensee provided that the original Named User ceases using or having access to the Software and the substitute Named User accepts all the terms and conditions of this Agreement. No more than one (1) person shall be a Named User or permitted to use the Software under the same license at the same time. Named User License(s) prohibit the use of concurrent, shared or multiple uses of an individual Software license.
(ii). License Granted - Named User License (s) – Self- Hosted. Subject to the terms and conditions of this Agreement, Meridian grants to Licensee a worldwide, non‑exclusive, non-transferable and non-assignable license for Self-Hosted users solely to (i) access and execute Meridian self-hosted Software only using a Site Key, and only for Licensee’s internal business operations at the Site; and (ii) input, upload, download and modify the Meridian Content available through Meridian Self-Hosted Software in connection with the normal course of the operation of Meridian Self-Hosted Software. This license does not include the right to grant sublicenses or to make derivative works of Meridian Self-Hosted Software.
(iii). License Granted - Named User License (s) – Hosted (Software as a Service “SaaS” and Managed Host). Subject to the terms and conditions of this Agreement, Meridian grants to Licensee a worldwide, non-exclusive, non-transferable and non-assignable right to permit Managed Host and SaaS Users solely to (i) access and use Meridian Software from the Host Site, only using a password and only for Licensee’s internal business purposes; (ii) access Meridian Hosted applications and the Meridian Content as both are located on Meridian’s server; (iii) establish, maintain, administer and modify the Project Content.
(iv). For Managed Host and SaaS applications, Licensee hereby grants Meridian, a non-exclusive, non-transferable, royalty free license to reproduce, display and use the Project Content for Meridian to fulfill its duties hereunder. Except as provided in this Section, Licensee shall at all times retain whatever ownership rights Licensee has in the Project Content, including, without limitation, Intellectual Property Rights.
C. Concurrent User License(s):
(i). The application as a shared resource that is based on the number of simultaneous users authorized to access the program at any one point in time which is managed by the software’s application license manager. For example, in a five-user concurrent use license, after five users are logged on to the program, the sixth user is prohibited. When any one of the first five logs out, the next person can log in.
(ii). License Granted – Self Hosted. Subject to the terms and conditions of this Agreement, Meridian grants to Licensee a worldwide, non‑exclusive, non-transferable and non-assignable license for Self-Hosted users solely to (i) access and execute Meridian Self-Hosted Software only using a Site Key, and only for Licensee’s internal business operations at the Site; and (ii) input, upload, download and modify the Meridian Content available through Meridian Self-Hosted Software in connection with the normal course of the operation of Meridian Self-Hosted Software. This license does not include the right to grant sublicenses or to make derivative works of Meridian Self-Hosted Software.
(iii). License(s) Granted – Hosted (Software as a Service “SaaS” and Managed Host) Subject to the terms and conditions of this Agreement, Meridian grants to Licensee a worldwide, non-exclusive, non-transferable and non-assignable right to permit SaaS and Hosted Users to (i) access and use Meridian Software from the Host Site, only using a password and only for Licensee’s internal business purposes; (ii) access Meridian Hosted applications and the Meridian Content as both are located on Meridian’s server; (iii) establish, maintain, administer and modify the Project Content. For Managed Host and SaaS applications, Licensee hereby grants Meridian, a non-exclusive, non-transferable, royalty free license to reproduce, display and use the Project Content for Meridian to fulfill its duties hereunder. Except as provided in this Section, Licensee shall at all times retain whatever ownership rights Licensee has in the Project Content, including, without limitation, Intellectual Property Rights.
3. Limitations on Use.
(a) Licensees may not copy, rent, lease, sell, sublicense, assign, loan, time-share or otherwise transfer or distribute copies of the Software or the Documentation, except as expressly set forth in Section 2 ("License Types/Grants/Use"). Licensee may physically transfer the Software from one computer to another provided that Licensee does not retain any copies of the Software in excess of the licenses purchased, including any copies stored on a computer. Licensee may permanently transfer this license to another user, but only if Licensee transfers or destroys all copies of the Software, and the recipient agrees in writing to be bound by all of the terms of this Agreement.
(b) Licensee agrees that it will not decompile, disassemble, or otherwise reverse engineer the Software, and Licensee will use its best efforts to prevent Licensee’s employees and contractors from doing so, except to the extent that such restriction is expressly prohibited by applicable law. Licensee may not modify, adapt, create a derivative work, merge, or translate the Software without the prior written consent of Meridian.
(d) If the Software purchased includes Supplier software which integrates a full or partial copy of third party software into the Software, the Supplier software may only be used with the Meridian product with which it was provided and accessing data that is not created or used by the Meridian product is not permitted.
(e) Licensee may make two (2) copies of the Software for backup or archival purposes only, so long as Meridian’s and its Suppliers’ copyright notices are reproduced on such copies.
4. Intellectual Property Rights. Licensee acknowledges that Meridian or its Suppliers retain exclusive ownership of all copyrights, trademarks, patents and/or other intellectual property rights in and to the Software. Licensee is not granted any rights in the Software other than the license rights expressly set forth in Section 2 ("License Types/Grants/Use").
5. Term and Termination. The term of perpetual software licenses is for the duration of any copyright in the Software. The term of flex software licenses is for the duration as stated in the Sales Agreement. This license automatically terminates if Licensee fails to comply with any of the terms and conditions of this Agreement. Licensee agrees that, upon such termination, Licensee will either destroy (or permanently erase) all copies of the Software, or return the original Software to Meridian. Licensee may terminate this license at any time by destroying the Software and any permitted copies. Sections 3, 4, 5, 6, 7, 8, 9, 12, 13and 14 shall survive any termination of the license or this Agreement.
6. Limited Warranty and Limited Remedy – Self-Hosted Software. Meridian warrants to the original end user purchaser only that the Software as delivered at the time of purchase will substantially conform to the Documentation, and that the original media and Documentation are free from defects in material and workmanship under normal use for a period of time from the Licensee’s original purchase date thereof (the “Limited Warranty Period”), provided the Software is used in accordance with the Documentation and with compatible computer hardware and operating systems. The Limited Warranty Period for Prolog® Software and Encompass® Software is ninety (90) calendar days and for Proliance® Software the Limited Warranty Period is one hundred and eighty (180) calendar days. This limited warranty is void if failure of the Software has resulted from accident, abuse, or misapplication. Meridian’s entire liability and Licensee’s sole and exclusive remedy shall be, at Meridian’s option, either to (a) correct or help Licensee work around or avoid a reproducible Error or (b) replace defective media or Documentation. An “Error” is a defect in the Software that causes it not to perform substantially in accordance with the limited warranty set forth above. Any replacement Software will be warranted for the remainder of the original warranty period only.
7. No Liability of Suppliers. Licensee acknowledges that its rights under this Agreement, in the nature of warranty or otherwise, are solely against Meridian. NO SUPPLIER MAKES ANY WARRANTY, ASSUMES ANY LIABILITY, OR UNDERTAKES TO FURNISH TO LICENSEE ANY SUPPORT OR INFORMATION CONCERNING THE SOFTWARE OR ANY PORTION OF THE SOFTWARE. Licensee hereby releases all Suppliers from any claims, damages or losses arising from the use of the Software, regardless of the form of action.
8. Disclaimer of Warranties. EXCEPT AS SPECIFICALLY PROVIDED ABOVE, THE SOFTWARE IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND. ALL OTHER WARRANTIES ARE DISCLAIMED, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR THAT THE SOFTWARE’S FUNCTIONS WILL MEET LICENSEE’S REQUIREMENTS OR THAT ITS OPERATION WILL BE UNINTERRUPTED OR ERROR FREE. EXCEPT AS SET FORTH IN THIS AGREEMENT, THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE IS WITH LICENSEE. If a disclaimer of implied warranties is not permitted by law, the duration of any such implied warranty is limited to the time period for the specific Software product purchased, as stated in Section 6 above “Limited Warranty and Limited Remedy” from the date of purchase by the original Licensee purchaser. Some jurisdictions do not allow the exclusion of implied warranties or limitations on how long an implied warranty may last, so such limitations or exclusions may not apply to Licensee. This limited warranty gives Licensee specific legal rights, and Licensee may also have other rights which vary from jurisdiction to jurisdiction.
9. Liability Exclusions and Limitations. IN NO EVENT SHALL MERIDIAN OR ANY SUPPLIER BE LIABLE 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, ARISING OUT OF THE USE OF THE SOFTWARE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF MERIDIAN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL MERIDIAN’S AGGREGATE LIABILITY HEREUNDER EXCEED THE LICENSE FEE PAID BY LICENSEE. This limitation shall apply notwithstanding any failure or inability to provide the limited remedies set forth above. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation(s) or exclusion(s) may not apply to Licensee.
10. Proprietary Rights-Contracts with Certain U.S. Government Agencies. If the Software is acquired under the terms of a Department of Defense or civilian agency contract, the Software is “commercial item” as that term is defined at 48 C.F.R. 2.101 (Oct. 1995), consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 of the Federal Acquisition Regulations and its successors and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995) of the DoD FAR Supplement and its successors. All U.S. Government end users acquire the Software with only those rights set forth in this Agreement.
12. Severability. Licensee acknowledges and agrees that each provision of this Agreement that provides for a disclaimer of warranties or an exclusion or limitation of damages represents an express allocation of risk, and is part of the consideration of this Agreement. Invalidity of any provision of this Agreement shall not affect the validity of the remaining provisions of this Agreement.
13. Audit Rights. Meridian, or a Meridian designated agent, (the “Auditor”) may upon five (5) business days written notice to Licensee, inspect any of Licensee’s facilities where the Software is used and audit records for the purpose of confirming Licensee’s compliance with the exercise of the licenses granted in Section 2 “License Types/Grants/Use”. All such audits will be conducted during reasonable business hours and in a manner that does not unreasonably interfere with Licensee’s business activities. The audit shall be performed at Meridian’s sole expense; provided however, that if, as a result of the Meridian audit, it is determined that Licensee is out of compliance by five percent (5%) of Licenses Granted and that Licensee owes Meridian additional fees, then Licensee shall bear the reasonable cost of Meridian’s audit and pay all past-due fees, in addition to such other remedies as Meridian may have under the terms and conditions between Licensee and Meridian.
14. Data Collection. Meridian may provide directly, or through qualified third parties, corrective and preventative technical support services under the terms of this Agreement. Licensee expressly consents to the provision and collection of certain Licensee information and data in connection with the services. The personal information Meridian collects will be used by Meridian, and its third party suppliers, to 1) provide the technical support service(s) or the transaction(s) Licensee has requested or authorized; 2) be used to request additional information on feedback that Licensee provides about the product or service that Licensee is using; 3) to provide critical updates and notifications regarding the pre-release software; or 4) to improve the product or service, i.e. fixing reported product issues. Licensee expressly consents to Meridian permitting certain third parties and consultants that it retains to perform services on its behalf to access Licensee’s information and data solely to perform the services for Licensee. The Licensee is responsible for providing any required notices and/or obtaining any required consents relating to collection and use of such data (including any such consent necessary for Meridian to provide these services). The Licensee is responsible for taking the steps necessary to ensure that the Licensee’s use of the services complies with applicable laws, regulations, and codes of practice. Licensee acknowledges that to the extent permitted by law, Meridian assumes no responsibility for storage of Licensee data or information.
15. General. This Agreement supersedes all prior written statements, proposals or agreements relative to its subject matter. It may be modified only by a writing executed by an authorized representative of Meridian. No Meridian dealer or sales representative is authorized to make any modifications, extensions or additions to this Agreement. This Agreement is governed by the laws of the State of California without application of its conflicts of law principles. The Superior Court of Sacramento County, California and/or the United States District Court for the Eastern District of California shall have jurisdiction and venue over all controversies in connection herewith. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
For any questions, contact:
1720 Prairie City Road, Suite 120
Folsom, California 95630
Toll-Free: (800) 850-2660
FAX: (916) 294-2001