End User License Agreement for Unisys Stealth Software
By clicking "Accept" or by downloading, installing, copying, accessing, or using the Software, you, the "Client", agree to this agreement. If you are an individual accepting these terms on behalf of an entity, the entity is the "Client" and you represent that you have the legal capacity to contract and you have the authority to enter, and you are entering, into this agreement on the Client's behalf. IF YOU DO NOT AGREE, DO NOT DOWNLOAD, INSTALL, COPY, ACCESS OR USE THE SOFTWARE OR CLICK "ACCEPT"; RETURN THE SOFTWARE (INCLUDING ANY OTHER ITEMS INCLUDED WITH THE SOFTWARE) TO THE SELLER, (WHETHER UNISYS OR A RESELLER), FOR A REFUND OF ANY LICENCE FEES PAID BY CLIENT FOR THE LICENSE OF THE SOFTWARE. IF CLIENT ACQUIRED A SUBSCRIPTION TO THE SOFTWARE IN A PUBLIC CLOUD OR SIMILAR HOSTED ENVIRONMENT (A "CLOUD-BASED STOREFRONT"), CLIENT MUST UNSUBSCRIBE AND NO REFUND WILL APPLY.
Terms and Conditions
Section 1 - Definitions
"License Plan(s)" are license plan descriptions and any separate license agreements applicable to the Software either supplied with the Software or published at https://public.support.unisys.com/common/ShowWebPage.aspx?id=8143&pla=ps&nav=ps
"Personal Data"means any information or set of information relating to a person that identifies the person or could reasonably be used to identify the person.
"Reseller" means any distributor, reseller, solution provider, system integrator, or hosting provider of a Cloud-based Storefront, in each instance authorized by Unisys to sell licenses or subscriptions for the Software. A Reseller includes any lower tier participants in the Reseller’s resale channel.
A "Schedule" is a document either incorporated in, or referenced by, this Agreement.
"Security Incident" means any unauthorized access, use, disclosure, destruction or loss of Personal Data within the possession or control of Unisys caused by Unisys failure to comply with the Section entitled Personal Data.
"Services" are services or work provided under this Agreement.
"Software" is the object code version of computer programs, image enablers, license or performance keys, any source code version that Unisys may provide, and any related documentation (including manuals and education materials but not maintenance materials or tools). Software includes maintenance releases, updates, and microcode that are not permanently fixed in equipment.
"Support Services" are the Unisys Services for the support of Unisys Software according to Unisys standard support plan descriptions, available at www.unisys.com/ms/terms-and-conditions/.
"Unisys" means the Unisys entity, whether Unisys Corporation or an affiliate, on whom Client placed the order for the Software or, if Client acquired the use of the Software through a Reseller, the Unisys entity on whom the Reseller’s corresponding order was placed.
"Unisys Software" is Software that bears a Unisys trademark.
"Unisys Services" are Services performed by or on behalf of Unisys.
Section 2 - Delivery
Unisys may deliver the Software on computer readable media or make the Software available for download or for use in a Cloud-based Storefront.
Section 3 – Client Responsibilities
Client has independently determined that the Software meets its requirements. Client will use the Software according to its instructions in the proper environment. Client will back up information and data stored or processed by the Software so Client can easily restore it if lost or damaged from any cause. Client will follow Unisys procedures and instructions for any applicable services. Client will install available error corrections and maintenance releases on a current basis. Client is responsible for any results produced by the Software, as well as compliance with all legal and regulatory requirements governing the Client’s operations. Client shall provide all information, data, software access or use and documentation ("Client Information") and access to the Software and sufficient computer time as reasonably required by Unisys to perform Services, subject only to Client's security rules. Client warrants to Unisys that it has the right to use, to disclose to Unisys and to allow Unisys to use all Client Information. Client will, at its own expense, indemnify and hold harmless Unisys against any loss or damage arising from any claim based on the absence of any of these rights. If Client uses the Software in a Cloud-based Storefront, Client will defend, indemnify and hold harmless Unisys against any claims, costs, damages, losses and liabilities arising out of or in any way connected with any product or service other than the Software and any Software-related services supplied by Unisys.
into the systems and network; and (ii) if access has been granted to named individuals through the issuance of Access Credentials, restrict access to such individuals, direct them not to share or transfer Access Credentials with anyone, and immediately notify Unisys or Client, as the case may be, if an individual authorized to access the systems and network is no longer an employee or no longer requires access to the systems and networks. Without limiting any of its other rights, Unisys and Client, each in its own right, may restrict, monitor, or terminate access to its systems and network at any time.
Section 4 – Confidential Information
Confidential Information is Software, diagnostics, support materials, documentation, and any other information and materials confidential to Unisys, its licensors, or Client. All materials containing Confidential Information will be marked "Proprietary", "Confidential", or in a manner that gives notice of its confidential nature. Software and the results of any evaluation of Unisys Software or Unisys Services are Unisys Confidential Information even if not marked. Confidential Information may not be copied nor shared with other persons or entities except for the subcontractors, agents, advisors and service providers of the recipient under substantially similar confidentiality obligations, in each case as essential for authorized use and performance or administration of this Agreement. Recipient agrees to reproduce all notices on any copies. If Confidential Information is disclosed in intangible form, the discloser will identify the confidential nature of the information before disclosure and will provide a written description of that Confidential Information to the recipient within 20 days of the disclosure. The recipient will use reasonable measures to protect Confidential Information provided by the discloser from unauthorized use or disclosure. Ownership of Confidential Information will remain with the discloser.
The obligations in this Section do not apply to Confidential Information: (i) already known to the recipient at the time of disclosure; (ii) independently generated by the recipient and not derived from the Confidential Information supplied by the discloser; (iii) publicly known or available, except where the knowledge or availability is the result of unauthorized disclosure by the recipient of the Confidential Information; (iv) rightfully disclosed to the recipient without a similar restriction by another; or (v) required to be disclosed by the recipient by law, regulation, court order, or other legal process, provided the recipient provides, to the extent possible, reasonable advance notice to the discloser. When this Agreement or a license ends, or upon request, the recipient agrees to return or destroy Confidential Information received under the Agreement or license, including all copies made, and all writings, descriptions and summaries involving or based on the discloser’s Confidential Information. These confidentiality duties continue after this Agreement ends or a license under this Agreement ends.
Support, diagnostic, analytical or other tools, software, documentation, diagrams, specifications, schematics, processes, templates, and blueprints (collectively, "Tools") that Unisys pre-loads on or embeds in Unisys Software or uses, stores, or provides to Client to assist Unisys deliver Services are Unisys Confidential Information and will be used only by Unisys personnel. Unisys may remove these Tools at will and Client gives Unisys permission and access to Client's site to do so.
Section 5 – Personal Data
Personal Data may be provided to oraccessed by Unisys under this Agreement.Client and Unisys will comply with their respective obligations underapplicable data protection and privacy laws and regulations.Client warrants that the processing of Personal Data in connection with this Agreement will not place Unisys or its subcontractors in breach of any data protection and privacy laws or regulations, and that Clienthas obtained all necessary consents and permissions to permit such processing. Unisys will implement and maintain commercially reasonable administrative, technical and physical safeguards to protect Personal Data processed by Unisys from unauthorized access, disclosure, or use, and accidental or unlawful destruction, loss, or alteration. Unisys will not process Personal Data for any purpose other than to provide Services to Client. Unisys may transfer Personal Data outside of the country of origin as required for the Services and disclose Personal Data to another if the disclosure is (1) required by law, regulation, or judicial or government order, (2) requested by individuals exercising their rights to access, amend, transfer, or delete their Personal Data; (3) requested by a competent government authority; (4) made pursuant to Client direction, or (5) made to another that either (a) performs services on behalf of Client or Unisys and the disclosure is made in order to perform the Services, or (b) performs clerical, administrative, technical, or security-related services for Unisys and such disclosure is incidental to the performance of such services, and (c) agrees to maintain the confidentiality of disclosed Personal Data consistent with this Agreement. Client and Unisys recognize that it is possible for data to be collected from users of the Service that is not Personal Data (e.g., "hits," "clickstream data," and the like). Any such data entered by or collected from users of the Services, to the extent relating specifically to Client or its customers, prospective customers, employees or recruits ("Usage Data"), will be deemed Client’s Confidential Information; however, Client grants Unisys a license to use Usage Data to provide Services to Client and Client grants Unisys a perpetual, non-exclusive, worldwide, transferable, irrevocable license to use and allow others to use anonymized Usage Data for any purpose including to provide Services to others. Unisys shall retain Personal Data only for so long as necessary to provide the Services in accordance with this Agreement. Unisys will, as soon as reasonably practicable, return in the format then stored, or, if Client so elects, destroy (and in the case of such destruction, certify, on reasonable notice, that such destruction has taken place) Personal Data upon Client’s request or the termination of this Agreement. In the event of a Security Incident, Unisys shall (1) promptly notify Client, (2) investigate and take reasonable steps to mitigate any harmful effects of the Security Incident, (3) reasonably cooperate with Client, and (4) take any remedial actions required bylaw.
Section 6 – License
Unisys either licenses Software directly or distributes Software. In either case, Client does not obtain ownership of Software. If Unisys licenses or distributes any Software with a separate license agreement, that separate license agreement is incorporated in this Agreement by reference and will apply to that Software. In the case of Software licensed under an open source license agreement, nothing in this Agreement shall be read to add additional conditions or restrictions, or affect any rights or obligations Client may have, pursuant to any such open source license. Otherwise, the following license terms will apply:
Licenses begin upon Unisys shipment of the Software on computer readable media or when the Software is made available for download or use or, in the case of renewals or extensions, upon the renewal or extension. Unisys licenses each copy of the Software and documentation to Client on a personal, non-exclusive and non-transferable basis for Client's internal use according to this Agreement on a single machine unless the ordered License Plan provides otherwise. The License Plan for the Software may specify additional limitations, such as on the number of users or concurrent users. Client may use the Software temporarily on a backup machine provided the Software is used on only one (1) machine at a time (where applicable) and Client removes the Software from the backup machine promptly after each temporary use. For Software installed by Unisys, Client grants Unisys the right to accept any click wrap software license on its behalf. 8205 9387-001 Page 3 of 5 (EULA 07/2017)
CLIENT SHALL NOT USE THE SOFTWARE IN CONNECTION WITH ANY SYSTEM WHERE MALFUNCTION CAN REASONABLY BE EXPECTED TO RESULT IN PERSONAL INJURY, DEATH, OR DAMAGE TO TANGIBLE PROPERTY OR TO THE ENVIRONMENT. WITHOUT LIMITING THE FOREGOING, THE SOFTWARE SHALL NOT BE USED IN CONNECTION WITH ANY LIFE SUPPORT OR PATIENT CARE SYSTEM, NUCLEAR FACILITY, AIRCRAFT OPERATION, AIR TRAFFIC CONTROL, OR OTHER APPLICATION REPRESENTING A SIMILAR DEGREE OF HAZARD. CLIENT AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS UNISYS AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AFFILIATES FROM ANY CLAIMS OR LOSSES RESULTING FROM ANY OF THE FOREGOING USES OF THE SOFTWARE.
Client will not copy Software except for a reasonable number of copies necessary to exercise the rights granted, which must bear all the legends and notices of the original item. Client will not create, copy, deduce or attempt to create, copy, deduce (by reverse engineering, disassembling or otherwise) the source code, internal structure, design architecture or organization of the Software, except and only to the extent expressly permitted by applicable law. Client shall not, nor shall Client encourage or permit others to, interfere with or alter any initialization system, or license authentication techniques. Upon notice to Client, Unisys may audit Client's use of the Software to determine Client's compliance with this license provided Unisys complies with Client's customary security rules and does not unreasonably interfere with Client's permitted use, and in such event, Client agrees to provide relevant information and reasonable facilities. Unisys may require Client to update the Software and Client shall replace the Software with the copy containing the updates upon receipt. Any updates provided by Unisys shall be Software under this Agreement.
SOFTWARE LICENSES END 60 MONTHS AFTER THE START OF THE LICENSE UNLESS THE ORDERED LICENSE PLAN OR DESCRIPTION PROVIDES OTHERWISE.
Unisys reserves any rights not expressly granted.
Section 7 – Software Warranties
Unisys warrants that Unisys Software will conform substantially to the then-current published functional specifications for 90 days from shipment or when made available for use or download. Unisys will make reasonable efforts to provide a workaround or correction for material errors in Unisys Software that prevent its use in a production environment that Client reports in writing to Unisys during this warranty period. This warranty does not extend to non-conformities resulting from accident, misuse, disaster, or alterations, modifications or services not provided or authorized by Unisys. The warranty does not apply to Unisys Software licensed on an "AS IS, WITH ALL FAULTS" basis nor to Unisys Software licensed to Client under a renewal, extension, or subsequent license.
Section 8 – Services Warranties
Unisys shall perform the Unisys Services in a competent and workmanlike manner using individuals of suitable training and skills.
Section 9 – No Other Warranties
Unisys makes no other warranties. Non-Unisys Software and non-Unisys Services are provided "AS IS, WITH ALL FAULTS" and without Unisys warranty. Client agrees to look solely to warranties and remedies provided by the respective manufacturer, supplier, or publisher of non-Unisys Software and non-Unisys Services, if any. Except as specifically described in the Limitation of Liability, Client agrees that Unisys will have no liability for any non-Unisys Software or non-Unisys Services, even if Unisys recommended, approved, or directly or indirectly supplied these items to Client. TO THE EXTENT PERMITTED BY LAW, UNISYS DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SOFTWARE IS NOT ERROR-FREE. UNISYS DOES NOT WARRANT UNISYS WILL CORRECT ALL SOFTWARE ERRORS. UNISYS DOES NOT WARRANT THAT THE FUNCTIONS OF THE SOFTWARE WILL MEET CLIENT’S REQUIREMENTS OR THAT THE SOFTWARE WILL OPERATE IN COMBINATIONS SELECTED FOR USE BY CLIENT.
BAD ACTORS CONTINUE TO DEVELOP NEW TECHNIQUES TO INTRUDE IN NETWORKS, ATTACK NETWORKS, OR TO CREATE OR EXPLOIT SECURITY RISKS OF NETWORKS. UNISYS DOES NOT WARRANT THAT THE SOFTWARE OR ANY OF ITS SECURITY FEATURES OR ANY EQUIPMENT, SYSTEM OR NETWORK ON WHICH, OR IN CONNECTION WITH WHICH THE SOFTWARE IS USED, WILL BE FREE OF VULNERABILITY TO INTRUSIONS, ATTACKS, OR SECURITY RISKS. Unisys warranties extend solely to Client. The following language relates only to Software subject to U.S. federal or state consumer warranty laws: If the disclaimer of implied warranties does not apply to Client, Unisys limits the length of these warranties to the applicable Unisys warranty period. Some states do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to Client. This warranty gives Client specific legal rights, and Client may have other rights, which vary from state to state.
Section 10 – Limitation of Liability
CLIENT'S SOLE AND EXCLUSIVE REMEDIES FOR DAMAGES FROM ANY CAUSE RELATED TO OR ARISING OUT OF THIS AGREEMENT REGARDLESS OF THE LEGAL THEORY, WHETHER BASED ON NEGLIGENCE, BREACH OF CONTRACT, WARRANTY OR OTHER LEGAL THEORY, WILL BE THOSE PROVIDED IN THIS AGREEMENT.
IN NO EVENT SHALL UNISYS, ITS SUPPLIERS, OR SUBCONTRACTORS BE LIABLE FOR (I) INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES; (II) LOST PROFITS, LOSS OF USE OR LOSS OF REVENUE (WHETHER DIRECT OR INDIRECT); (III) DAMAGE TO OR LOSS OF DATA; OR (IV) LOSS OF GOODWILL OR OTHER DIMINUTION IN THE VALUE OF THE CLIENT'S BUSINESS, IN ALL CASES EVEN IF KNOWN OR FORESEEABLE.
THE TOTAL AGGREGATE LIABILITY OF UNISYS, ITS SUPPLIERS, AND SUBCONTRACTORS WILL NOT EXCEED THE GREATER OF $5,000 USD OR THE CHARGES PAID TO UNISYS FOR THE SOFTWARE OR SERVICE THAT IS THE SUBJECT OF THE CLAIM DURING THE 12 MONTHS BEFORE THE CLAIM; EXCEPT THAT FOR DEFECTIVE NON-UNISYS SOFTWARE, UNISYS MAXIMUM LIABILITY IS A REFUND OF THE AMOUNT PAID FOR THE NON-UNISYS SOFTWARE (NOT INCLUDING ANY AMOUNTS PAID FOR RELATED SERVICES) RETURNED TO UNISYS WITHIN 90 DAYS AFTER RECIEPT BY CLIENT.
Section 11 – Ideas
Any ideas, concepts, know-how, data processing techniques, software, documentation, diagrams, specifications, schematics, processes, templates, tools or blueprints developed (alone or jointly with Client) by Unisys personnel will be and remain the property of Unisys. To the extent Unisys incorporates any of the foregoing in the Unisys Software licensed to Client, any Software modification, customization or enhancement is licensed on the same terms as the underlying Software. 8205 9387-001 Page 4 of 5 (EULA 07/2017)
Section 12 – Termination
THIS AGREEMENT AND THE LICENSE FOR ANY UNISYS SOFTWARE ENDS UPON CLIENT’S BREACH OF THIS AGREEMENT. Any terms of this Agreement that by their nature extend after the end of the Agreement will remain in effect until fulfilled. The rights or duties relating to protection of Confidential Information, indemnities, and compliance with import and export regulations will survive termination of this Agreement.
Section 13 – Dispute Resolution
Any controversy or claim arising out of or relating to this Agreement, or the breach of this Agreement, shall be settled by arbitration, which will be mandatory and binding for Unisys and Client. Arbitration shall be conducted before a single arbitrator and, if Client is not a US person or entity, administered by the International Centre for Dispute Resolution in accordance with the provisions of its International Arbitration Rules or, if Client is a US person or entity, administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules. The arbitrator will have no authority to award punitive damages. The place of arbitration shall be New York, New York, USA. The language of the arbitration shall be English. The costs of the arbitration will be borne equally by Unisys and Client. Unisys will bear its internal expenses and its attorney’s fees and expenses and Client will bear its internal expenses and its attorney’s fees and expenses.
Nothing in this section will preclude, delay, or affect recourse to a court of competent jurisdiction by: (i) Unisys or Client to compel arbitration or enforce an arbitration award; (ii) Unisys or Client to seek temporary equitable relief; (iii) Unisys or Client to recover specific property; or, (iv) Unisys for a suspected violation of Unisys’ intellectual property rights.
No arbitration or any legal action, regardless of its form, related to or arising out of this Agreement, may be brought more than two (2) years after the cause of action first accrued, except for any action by Unisys for a suspected violation of Unisys’ intellectual property rights.
Section 14 – No Third Party Beneficiaries
No person other than Unisys or Client (including any employee, officer, agent, representative or sub -contractor of Unisys or Client) shall have the right (whether under statute or otherwise) to enforce any term of this Agreement that expressly or by implication confers a benefit on that person unless Unisys and Client give their advance written agreement, which agreement must refer to this paragraph, or unless the applicable Unisys License Plan expressly confers a benefit on that person. Even if a person other than Unisys or Client (including any employee, officer, agent, representative or sub-contractor of either party) has a right to enforce any term of this Agreement despite the immediately preceding sentence, Unisys and Client may vary or cancel this Agreement by agreement without the consent of the person.
Section 15 – Other Provisions
Client and Unisys agree that the language of this Agreement shall be English. Neither Unisys nor Client will be liable for failure to fulfill its obligations when due to causes beyond its reasonable control, excluding payment of monies due. Any failure or delay in exercising any right or remedy will not be a waiver. Each provision of this Agreement is severable. THE LOCAL LAW OF THE STATE OF NEW YORK, USA, WILL GOVERN THIS AGREEMENT, WITHOUT REGARD TO CONFLICTS OF LAWS PROVISIONS. This Agreement may only be modified by a writing signed by a duly authorized representative of Unisys. Unisys may change a Schedule (for example and not limitation to change license plans and descriptions or to change support service plans) at any time and for any reason, by posting the changed Schedule at a Unisys website, with or without notice to Client. Client may not assign or transfer Client's rights or obligations under this Agreement without the prior written consent of Unisys. Unisys may subcontract Services to third parties. Client shall comply with all laws and regulations of each applicable jurisdiction, including laws and regulations related to the use, disclosure, transfer, import, export or re-export of the Software and related products and services. Technology included in the Software is subject to limitations on encryption technology imposed by the United States and other governments. Information about the United States government limitations may be found at http://www.bis.doc.gov. Client agrees not to export or re-export the Software contrary to applicable United States export law (including without limitation the Export Administration Regulations ("EAR"), Office of Foreign Asset Control ("OFAC") regulations and any other applicable regulations). Client shall not transfer, import, export, or re-export the Software, directly or indirectly (i) to a United States embargoed country; nor (ii) to any person or entity on a denial list published by the United States government. Client shall not use, nor permit others to use, the Software for any end use prohibited by United States law or other applicable law including use in the design, development, production, stockpiling, or use of nuclear devices, missiles, chemical or biological weapons, or other weapons of mass destruction. Client represents and warrants that Client is not: subject to any sanctions by the United States government or listed on any denial list published by the United States government, or a national or entity of, (or located in), a country subject to a United States embargo such as the countries listed in Country Group E of Supplement No. 1 to Part 740 of the EAR or Part 746 of the EAR, or both. If Client acquires a subscription or license to the Software in a Cloud Based Storefront; Client shall not transfer the Software, including any part or copies of the Software or any executable files derived from the Software, out of the public cloud of the provider of the Cloud Based Storefront; and, Client shall not spoof, defeat, circumvent, or disable any copy protection mechanism or execution/run-time protection mechanism of, or related to, the Software including any mechanism(s) to limit the Software’s location or execution, or both, solely to the public cloud of the provider of the Cloud Based Storefront. All notices from Client under this Agreement shall be addressed to the office that services Client, with a copy to the Unisys Law Department, 801 Lakeview Drive, Suite 100, Blue Bell, PA 19422.
Section 16 – U.S. Federal Government Terms
(This Section applies only if Client is a U.S. Federal Government end user.) THE SOFTWARE AND ANY ACCOMPANYING DOCUMENTATION ARE COMMERCIAL ITEMS THAT HAVE BEEN DEVELOPED ENTIRELY AT PRIVATE EXPENSE. THEY ARE DELIVERED AND LICENSED AS COMMERCIAL COMPUTER SOFTWARE AND COMMERCIAL SOFTWARE DOCUMENTATION WITHIN THE MEANING OF THE APPLICABLE U.S. FEDERAL ACQUISITION REGULATION(S). THE LICENSE CONTAINED IN THIS AGREEMENT PRESCRIBES EXCLUSIVELY THE GOVERNMENT’S USE AND DISCLOSURE OF THE SOFTWARE AND DOCUMENTATION.
To the extent any provisions of this Agreement are invalid or unenforceable as applied to contracts with the U.S. Federal Government, applicable laws or regulations apply, including U.S. Federal Government acquisition regulations (e.g., FAR, DFARS), the Contract Disputes Act of 1978, and 28 U.S.C. §516. All other provisions of the Agreement remain in effect. 8205 9387-001 Page 5 of 5 (EULA 07/2017)
Section 17 – Entire Agreement
If Client purchased a license for the Software from a Unisys entity directly under a separate agreement then that separate agreement shall apply to the Software and this Agreement will not apply; otherwise, this Agreement, including the Schedules, is the entire agreement between Client and Unisys for the Software that is the subject of this Agreement and supersedes all prior related proposals, agreements, and all other communications between Client and Unisys for these matters. Unisys rejects any terms in any purchase order or other document issued by Client to Unisys or Reseller that are additional to or different from the terms of this Agreement. Client agrees that any additional or different terms shall have no force or effect. To the extent any provision of this Agreement is contrary to applicable law, unenforceable under applicable law, or declared invalid then the provision shall be deemed severed and shall have no effect; the remaining provisions will continue to have effect.