Software License Agreement
This Software License Agreement (the “Agreement”) is between The OpenNMS Group, Inc., a North Carolina corporation (“OpenNMS”), and you as a licensee of the OpenNMS Meridian software.
IMPORTANT—READ CAREFULLY: BY DOWNLOADING, INSTALLING, OR USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THE ENTITY TO THIS AGREEMENT, IN WHICH CASE “YOU” WILL MEAN THE ENTITY YOU REPRESENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MUST NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE.
1.1. “Affiliate” means, with respect to a party at a given time, an entity that then is directly or indirectly controlled by, is under common control with, or controls that party, and here “control” means an ownership, voting or similar interest representing fifty percent (50%) or more of the total interests then outstanding of that entity.
1.2. “Configuration Data” means custom events, notices, data collection, workflows, and reports produced by OpenNMS for use with the Software.
1.3. “Documentation” means all documentation provided to you by OpenNMS with the Software, including end user manuals, operation instructions, installation guides, release notes, and help files.
1.4. “Free and Open Source Software” or “FOSS” means software licensed under the terms of a license identified as a free software license by the Free Software Foundation and as an open source license by the Open Source Initiative.
1.5. “Intellectual Property Rights” means all worldwide intellectual property rights, including without limitation, copyrights, trademarks, service marks, trade secrets, know how, inventions, patents, patent applications, moral rights and all other proprietary rights, whether registered or unregistered.
1.6. “License” means a license granted under Section 2 (License Grant).
1.7. “Order” means a purchase order, online order, or other ordering document issued by you to OpenNMS, or a reseller authorized by OpenNMS, that references and incorporates this Agreement and is accepted by OpenNMS as set forth in Section 8 (Orders).
1.8. “Service Provider” means a third party delivering information technology services to you pursuant to a written contract with you.
1.9. “Software” means the OpenNMS Meridian software, including both source code and object code copies of the software, as well as any Updates to the Software made available by OpenNMS during your Subscription Term.
1.10. “Subscription” means access to Updates from OpenNMS for a single instance of the Software, for a given Subscription Term.
1.11. “Subscription Term” means the duration of a Subscription, as specified in an Order.
1.12. “Updates” means (a) all updates to the Software and Documentation made available by OpenNMS, including new features, bug fixes, security updates, and performance enhancements, and (b) all new Configuration Data made available by OpenNMS for use with the Software.
2. LICENSE GRANT.
2.1. General License Grant. OpenNMS grants to you a non-exclusive, perpetual, non-transferable (except as set forth in Section 15.1 (Transfer; Assignment)) license to deploy, operate, copy, and modify the Software and Documentation solely for your internal business operations. Your License shall commence upon either the date of your Order or the date upon which OpenNMS delivers the Software to you, whichever is later.
2.2. Service Providers. Your License authorizes you to permit your Service Providers to deploy, access, use, modify, and operate the Software on your behalf for the sole purpose of delivering services to you, provided that you will be fully responsible for your Service Providers’ compliance with terms and conditions of this Agreement and any breach of this Agreement by a Service Provider shall be deemed to be a breach by you.
2.3. Configuration Data. Except during the Return Period as described in Section 7.2 (Configuration Data Confidential), your use of the Configuration Data is unrestricted.
3. LICENSE RESTRICTIONS.
3.1. No Services to Third Parties. You may not, and may not allow any Service Provider or other third party to, operate the Software in an application services provider, service bureau, or similar capacity for third parties, except that you may use the Software to deliver hosted services to your Affiliates.
3.2. No Sublicensing. You may not sublicense Software or Documentation to an Affiliate or any third party, except as expressly permitted in Section 15.1 (Transfer; Assignment).
3.3. Preservation of Notices. You may not remove any copyright or other proprietary notices on or in any copies of Software.
4. FOSS LICENSE OPTION.
4.1. After the expiration of the Return Period specified in Section 7.1 (Return for Full Refund), you may elect to have your use of the Software governed by the terms of version 3 of the GNU Affero General Public License (the “AGPLv3”) instead of the license described in Sections 2 (License Grant) and 3 (License Restrictions) of this Agreement.
5.1. Ownership. The Software and Documentation, all copies and portions thereof, and all improvements, enhancements, modifications and derivative works thereof, and all Intellectual Property Rights therein, are and shall remain the sole and exclusive property of OpenNMS and its licensors. Your rights to use the Software, Configuration Data, and Documentation shall be limited to those expressly granted in this Agreement and any applicable Order, and no other rights are implied. You are not authorized to use (and shall not permit any third party to use) the Software, Configuration Data, and Documentation or any portion thereof except as expressly authorized by this Agreement or the applicable Order. OpenNMS reserves all rights not expressly granted to you. OpenNMS does not transfer any ownership rights in any Software to you.
5.2. Third-Party FOSS. Notwithstanding anything herein to the contrary, third-party Free and Open Source Software incorporated into the Software is licensed to you under the applicable FOSS license terms, which can be found in the Software’s source code. Third-party FOSS components are identified in the LICENSE.md file accompanying the source. OpenNMS represents that the applicable FOSS licenses terms are consistent with the License.
5.3. OpenNMS Trademarks. “OpenNMS”, “Meridian”, “Compass” and the OpenNMS logo (the “OpenNMS Marks”) are trademarks of OpenNMS. Neither this Agreement nor any applicable FOSS license permits you to distribute the Software, modified or unmodified, using the OpenNMS Marks. If you choose, pursuant to Section 4 (FOSS License Option), to distribute the Software to any third party under the AGPLv3, you must first remove or replace any instance of the OpenNMS Marks that in any way suggest OpenNMS’s approval of or affiliation with your distribution of the Software. Notwithstanding the above, when you distribute the Software you must preserve any copyright and other proprietary notices referring to OpenNMS and its licensors, as required by Section 3.3 (Preservation of Notices) and any applicable FOSS licenses.
6. SUBSCRIPTION TO UPDATES.
6.1. Subscription Access. For each Subscription you purchase, you shall be authorized to access Updates for a single instance of the Software. If you are running multiple instances of the Software, for example on different physical or virtual servers, you must purchase a separate Subscription to access Updates from each of them.
6.2. Expiration. Upon expiration or termination of a Subscription Term, you shall no longer be permitted to access new Updates provided by OpenNMS to subscribers. However, your License to the Software shall persist.
6.3. Support. Except for Updates to which you are entitled under Section 6.1 (Subscription Access), this Agreement does not entitle you to receive support services for the Software from OpenNMS. If you have placed an Order for support services, those services shall be delivered according to the terms of a separate software support agreement.
7. EVALUATION AND RETURN PERIOD.
7.1. Return for Full Refund. For fifteen (15) days beginning on the date of your Order (the “Return Period”), you shall be entitled to return the Software to OpenNMS (or the authorized reseller from which you acquired the Software) and receive a full refund of the fees paid by you for the License. After the Return Period, you shall not be entitled to any refund from OpenNMS except as provided in Section 10.1 (Software Warranty).
7.2. Configuration Data Confidential. You agree that, during the Return Period, the Configuration Data shall be Confidential Information of OpenNMS subject to the protections described in Section 14 (Confidential Information) of this Agreement. If you do not return the Software as provided in Section 7.1 (Return for Full Refund) then, after the Return Period, the Configuration Data shall no longer be considered Confidential Information.
7.3. Effect of Return. Upon your return the Software according to the terms of Section 7.1 (Return for Full Refund), this Agreement shall terminate according to the terms of Section 13 (Termination).
8.1. All Orders are subject to this Agreement. No Orders are binding on OpenNMS until accepted by OpenNMS. An Order is deemed to be accepted upon OpenNMS’s issuance of a receipt to you after receiving your payment in full for the Order (the “Acceptance Date”).
9. RECORDS AND AUDIT.
9.1. During any Subscription Term and for two (2) years thereafter, you shall maintain accurate records of your Subscription use sufficient to show compliance with the terms of this Agreement. During this period, OpenNMS will have the right to audit your Subscription use to confirm compliance. That audit is subject to reasonable notice by OpenNMS and will not unreasonably interfere with your business activities. OpenNMS may conduct at most one (1) audit in any twelve (12) month period, and only during normal business hours. You will reasonably cooperate with OpenNMS and any third party auditor and will, without prejudice to other rights of OpenNMS, address any non-compliance identified by the audit by promptly paying additional Subscription fees. You will promptly reimburse OpenNMS for all reasonable costs of the audit if the audit reveals either underpayment of more than five (5%) percent of the Subscription fees payable by you for the period audited, or that you have materially failed to maintain accurate records of Subscription use.
10.1. Software Warranty. OpenNMS warrants to you that the Software will, for a period of ninety (90) days following delivery (the “Warranty Period”), substantially conform to the applicable Documentation, provided that the Software: (a) has been properly installed and used at all times in accordance with the applicable Documentation; and (b) has not been modified or added to by person other than OpenNMS or its authorized representative. OpenNMS will, at its own expense and as its sole obligation and your exclusive remedy for any breach of this warranty, either replace that Software or correct any reproducible error in that Software reported to OpenNMS by you in writing during the Warranty Period. If OpenNMS determines that it is unable to correct the error or replace the Software, OpenNMS will refund to you the amount paid by you for that Software, in which case the License for that Software will terminate.
10.2. Software Disclaimer of Warranty. OTHER THAN THE WARRANTY ABOVE, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OPENNMS AND ITS LICENSORS MAKE NO OTHER EXPRESS WARRANTIES UNDER THIS AGREEMENT, AND DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE. OPENNMS AND ITS LICENSORS DO NOT WARRANT THAT THE SOFTWARE WILL OPERATE UNINTERRUPTED OR THAT IT WILL BE FREE FROM DEFECTS OR THAT IT WILL MEET YOUR REQUIREMENTS.
11.1. Defense and Indemnification. Subject to the remainder of this Section 11 (Indemnification) and to Section 12 (Limitation of Liability), OpenNMS shall defend you against any third party claim that the Software infringes any patent, trademark or copyright, or misappropriates a trade secret (but only to the extent that the misappropriation is not a result of your actions) under the laws of the United States (an “Infringement Claim”) and indemnify you from the resulting costs and damages finally awarded against you to such third party by a court of competent jurisdiction or agreed to in settlement. The foregoing obligations are applicable only if you: (i) promptly notify OpenNMS in writing of the Infringement Claim; (ii) allow OpenNMS sole control over the defense for the claim and any settlement negotiations; and (iii) reasonably cooperate in response to OpenNMS requests for assistance. You may not settle or compromise any Infringement Claim without the prior written consent of OpenNMS.
11.2. Remedies. If the alleged infringing Software becomes, or in OpenNMS’s opinion be likely to become, the subject of an Infringement Claim, OpenNMS will, at OpenNMS’s option and expense, do one of the following: (a) procure the rights necessary for you to make continued use of the affected Software; (b) replace or modify the affected Software to make it non-infringing; or (c) terminate the License to the affected Software and discontinue the related support services, and, upon your certified deletion of the affected Software, refund the fees paid by you for the License to the affected Software, less straight-line depreciation over a three (3) year useful life beginning on the date such Software was delivered. Nothing in this Section 11.2 (Remedies) shall limit OpenNMS’s obligation under Section 11.1 (Defense and Indemnification) to defend and indemnify you, provided that you promptly replace the allegedly infringing Software with alternative Software provided to you by OpenNMS or, alternatively, discontinue using the allegedly infringing Software upon receiving OpenNMS’s notice terminating the affected License.
11.3. Exclusions. Notwithstanding the foregoing, OpenNMS will have no obligation under this Section 11 (Indemnification) or otherwise with respect to any claim based on: (a) a combination of Software with non-OpenNMS products; (b) use for a purpose or in a manner for which the Software was not designed; (c) use of any older version of the Software when use of a newer OpenNMS version would have avoided the infringement; (d) any modification to the Software made without OpenNMS’s express written approval; or (f) any Software provided on a no-charge, beta, or evaluation basis. THIS SECTION 11 (INDEMNIFICATION) STATES YOUR SOLE AND EXCLUSIVE REMEDY AND OPENNMS’S ENTIRE LIABILITY FOR ANY INFRINGEMENT CLAIMS OR ACTIONS.
12. LIMITATION OF LIABILITY.
12.1. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL OPENNMS AND ITS LICENSORS BE LIABLE FOR ANY LOST PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, BUSINESS INTERRUPTION, LOSS OF DATA, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE PRECEDING LIMITATION MAY NOT APPLY TO YOU.
12.2. Liability Cap. THE LIABILITY OF OPENNMS AND ITS LICENSORS UNDER THIS AGREEMENT WILL NOT, IN ANY EVENT, REGARDLESS OF WHETHER THE CLAIM IS BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EXCEED THE GREATER OF THE LICENSE FEES YOU PAID FOR THE SOFTWARE GIVING RISE TO THE CLAIM OR $5,000. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER OPENNMS OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
13.1. Agreement Term. The term of this Agreement begins upon the Acceptance Date and continues until this Agreement is terminated in accordance with this Section 13 (Termination).
13.2. Termination for Breach. OpenNMS may terminate this Agreement effective immediately upon written notice to you if: (a) you fail to pay any portion of the fees under an applicable Order within ten (10) days after receiving written notice from OpenNMS that payment is past due; or (b) you breach any other provision of this Agreement and fail to cure within thirty (30) days after receipt of OpenNMS’s written notice thereof.
13.3. Termination for Insolvency. OpenNMS may terminate this Agreement effective immediately upon written notice to you if you: (a) terminate or suspend your business; (b) become insolvent, admit in writing your inability to pay your debts as they mature, make an assignment for the benefit of creditors; or become subject to control of a trustee, receiver or similar authority; or (c) become subject to any bankruptcy or insolvency proceeding.
13.4. Effect of Termination. Upon OpenNMS’s termination of this Agreement, your License to the Software will immediately cease and you must cease all use of the Software and return, or if requested by OpenNMS, destroy, any related OpenNMS Confidential Information in your possession or control and certify in writing to OpenNMS that you have fully complied with these requirements. Any provision will survive any termination or expiration if by its nature and context it is intended to survive, including Sections 1 (Definitions), 3 (License Restrictions), 5 (Ownership), 7.2 (Configuration Data Confidential), 9 (Records and Audit), 10.2 (Software Disclaimer of Warranty), 12 (Limitation of Liability), 13 (Termination), 14 (Confidential Information) and 15 (General).
14. CONFIDENTIAL INFORMATION.
14.1. Definition. “Confidential Information” means information or materials provided by one party (“Disclosing Party”) to the other party (“Recipient”) which are in tangible form and labeled “confidential” or the like, as well as any information which a reasonable person knew or should have known to be confidential. The following information shall be considered Confidential Information whether or not marked or identified as such: (a) Configuration Data (during the Return Period only); (b) information regarding OpenNMS’s pricing, product roadmaps or strategic marketing plans; and (c) non-public materials relating to the Software.
14.2. Protection. Recipient may use Confidential Information of Disclosing Party: (a) to exercise its rights and perform its obligations under this Agreement; or (b) in connection with the parties’ ongoing business relationship. Recipient will not use any Confidential Information of Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of Disclosing Party only to the employees or contractors of Recipient who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than Recipient’s duty hereunder. Recipient will protect Confidential Information from unauthorized use, access, or disclosure in the same manner as Recipient protects its own confidential or proprietary information of a similar nature but with no less than reasonable care.
14.3. Exceptions. Recipient’s obligations under Section 14.2 (Protection) with respect to any Confidential Information will terminate if Recipient can show by written records that such information: (a) was already known to Recipient at the time of disclosure by Disclosing Party; (b) was disclosed to Recipient by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of Recipient has become, generally available to the public; or (d) was independently developed by Recipient without access to, or use of, Disclosing Party’s Information. In addition, Recipient will be allowed to disclose Confidential Information to the extent that such disclosure is required by law or by the order of a court of similar judicial or administrative body, provided that Recipient notifies Disclosing Party of such required disclosure promptly and in writing and cooperates with Disclosing Party, at Disclosing Party’s request and expense, in any lawful action to contest or limit the scope of such required disclosure.
15.1. Transfers; Assignment. Except to the extent transfer may not legally be restricted, You will not assign this Agreement, any Order, or any right or obligation herein or delegate any performance without OpenNMS’s prior written consent, which consent will not be unreasonably withheld. Any other attempted assignment or transfer by you will be void. OpenNMS may use its Affiliates or other sufficiently qualified subcontractors to provide services to you, provided that OpenNMS remains responsible to you for the performance of the services.
15.2. Notices. Any notice delivered by OpenNMS to you under this Agreement will be delivered via mail, email or fax.
15.3. Waiver. Failure to enforce a provision of this Agreement will not constitute a waiver.
15.4. Severability. If any part of this Agreement is held unenforceable, the validity of all remaining parts will not be affected.
15.5. Compliance with Laws; Export Control; Government Regulations. Each party shall comply with all laws applicable to the actions contemplated by this Agreement. You acknowledge that the Software is of United States origin, is provided subject to the U.S. Export Administration Regulations, may be subject to the export control laws of the applicable territory, and that diversion contrary to applicable export control laws is prohibited. You represent that (1) you are not, and are not acting on behalf of, (a) any person who is a citizen, national, or resident of, or who is controlled by the government of any country to which the United States has prohibited export transactions; or (b) any person or entity listed on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons, or the U.S. Commerce Department Denied Persons List or Entity List; and (2) you will not permit the Software to be used for any purposes prohibited by law, including any prohibited development, design, manufacture or production of missiles or nuclear, chemical or biological weapons. The Software and Documentation are deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFARS Section 227.7202 and FAR Section 12.212(b), as applicable. Any use, modification, reproduction, release, performing, displaying or disclosing of the Software and documentation by or for the U.S. Government shall be governed solely by the terms and conditions of this Agreement.
15.6. Governing Law. This Agreement is governed by the laws of the State of North Carolina (excluding its conflict of law rules) and the federal laws of the United States. To the extent permitted by law, the state and federal courts located in Chatham County, North Carolina will be the exclusive jurisdiction for disputes arising out of or in connection with this Agreement. The U.N. Convention on Contracts for the International Sale of Goods does not apply.
15.7. No Third-Party Beneficiaries. Other than as expressly set out in this Agreement, this Agreement does not create any rights for any person who is not a party to it, and no person who is not a party to this Agreement may enforce any of its terms or rely on any exclusion or limitation contained in it.
15.8. Order of Precedence. In the event of conflict or inconsistency between this Agreement and an Order, the terms of this Agreement shall supersede and control over any conflicting or additional terms and conditions of the Order, or of any acknowledgement or confirmation or other document issued by you.
15.9. Entire Agreement. This Agreement, including accepted Orders and any amendments hereto, constitute the entire agreement of the parties with respect to the subject matter of this Agreement and supersede all previous or contemporaneous communications, representations, proposals, commitments, understandings and agreements, whether written or oral, between the parties regarding the subject matter hereof. This Agreement may be amended only in writing signed by authorized representatives of both parties.
15.10. Contact Information. Please direct legal notices or other correspondence to The OpenNMS Group, Inc., PO Box 208, 220 Chatham Business Drive, Pittsboro, NC 27312, United States.