THIS END USER LICENSE AGREEMENT SUPERSEDES THE END USER LICENSE AGREEMENT INCORPORATED INTO THE SOFTWARE.
PLEASE READ THIS END USER LICENSE AGREEMENT ("AGREEMENT") CAREFULLY BEFORE USING THE SOFTWARE. SERENA SOFTWARE, INC. ("SERENA") IS WILLING TO LICENSE THE SOFTWARE TO YOU, AS AN INDIVIDUAL OR COMPANY THAT WILL BE USING THE SOFTWARE ("YOU" OR "YOUR") ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THIS AGREEMENT. THIS IS A LEGALLY ENFORCEABLE CONTRACT BETWEEN YOU AND SERENA. BY CLICKING THE "ACCEPT" OR "YES" BUTTON, OR OTHERWISE INDICATING ASSENT ELECTRONICALLY, OR BY INSTALLING THE SOFTWARE, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ALSO AGREE THAT IS IT ENFORCEABLE LIKE ANY WRITTEN AND NEGOTIATED AGREEMENT SIGNED BY YOU. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, CLICK THE "I DO NOT ACCEPT" OR "NO" BUTTON AND MAKE NO FURTHER USE OF THE SOFTWARE.
1.1 "Software" means Serena's software products in object code form.
1.2 "Territory" means the country or countries in which You have a license to use the Software, as specified in Your order for the Software; or, if no Territory is specified, the country from which Your order has been issued.
1.3 "User Documentation" means the user's guide, installation guides, or on-line documentation applicable to the Software.
2.0 GRANT OF LICENSE AND USE OF SOFTWARE
2.1 License Grant. Subject to the terms and conditions of this Agreement, Serena grants to You a perpetual, non-exclusive license to use the Software within the Territory, in accordance with the User Documentation.
2.2 Usage Rights. You may only use the Software and the User Documentation for Your internal business operations and to process Your data. You will not (a) permit any third parties or non-licensed entities to use the Software or the User Documentation; (b) process or permit to be processed any data that is not Your data; (c) use the Software in the operation of a service bureau; (d) sublicense, rent, or lease the Software or the User Documentation to a third party; or (e) perform, publish, or release to any third parties any benchmarks or other comparisons regarding the Software or User Documentation. You will not make simultaneous use of the Software on multiple, partitioned, or virtual computers without first procuring an appropriate number of licenses from Serena. You will not permit a third party outsourcer to use the Software to process data on Your behalf without Serena's prior written consent.
2.3 License Keys. You acknowledge that the Software may contain one or more license keys that will enable the functionality of the Software and third party software embedded in or distributed with the Software. You may only access and use the Software with license keys issued by Serena, and if Serena issues a new license key, You will not use the previous license key to enable the Software.
2.4 Archival Copies. You may make one copy of the Software for back-up and archival purposes only, and You may make a reasonable number of copies of the User Documentation for Your internal use. All copies of Software and User Documentation must include all copyright and similar proprietary notices appearing on or in the originals.
2.5 Third Party Terms. You acknowledge that software provided by third party vendors ("Third Party Software") may be embedded in or delivered with the Software. The terms of this Agreement and any other terms that Serena may specify will apply to such Third Party Software, and the Third Party Software vendors will be deemed third party beneficiaries under this Agreement. You may only use the Third Party Software with the Software, and You may not use the Third Party Software on a stand-alone basis or use or integrate it with any other software or device.
3.0 TITLE. Serena retains all right, title and interest in and to the Software and User Documentation and all copies, improvements, enhancements, modifications, and derivative works of the Software and User Documentation, including, without limitation, all patent, copyright, trade secret, trademarks and other intellectual property rights. You agree that You will not copy (except as expressly permitted herein), make modifications to, translate, disassemble, decompile, reverse engineer, otherwise decode or alter, or create derivative works based on the Software or User Documentation. Except as otherwise provided, Serena grants no express or implied rights under this license to any of Serena's patents, copyrights, trade secrets, trademarks or other intellectual property rights.
4.0 NO WARRANTY. THE SOFTWARE IS PROVIDED "AS IS". SERENA DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND STATUTORY WARRANTIES OF NON-INFRINGEMENT.
5.0 LIABILITY AND REMEDY. IN NO EVENT WILL SERENA OR ITS THIRD PARTY VENDORS BE LIABLE TO YOU FOR (A) ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR (B) LOSS OF DATA, LOSS OF PROFITS, BUSINESS INTERRUPTION, OR SIMILAR DAMAGES OR LOSS, EVEN IF SERENA AND ITS THIRD PARTY VENDORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS LIMITED BY APPLICABLE LAW, AND REGARDLESS OF THE BASIS FOR YOUR CLAIM, SERENA'S MAXIMUM LIABILITY UNDER THIS AGREEMENT WILL BE ONE HUNDRED DOLLARS ($100). THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
6.1 Entire Agreement. This Agreement will supersede any different, inconsistent, or preprinted terms and conditions in Your order form, purchase order, or other ordering document. This Agreement constitutes the entire agreement between us relating to the Software and User Documentation and will supersede all previous oral and written agreements between us with respect to the Software and User Documentation.
6.2 Assignment. You may not assign, sublicense, pledge or otherwise transfer any of Your rights to the Software or User Documentation without Serena's prior written consent.
6.3 Severability. If any provision of this Agreement is held to be illegal or otherwise unenforceable by a court, that provision will be severed and the remainder of the Agreement will remain in full force and effect.
6.4 Waiver. The waiver of any right or election of any remedy in one instance will not affect any rights or remedies in another instance. A waiver will be effective only if made in writing and signed by an authorized representative of the applicable party.
6.5 Export Restrictions. You acknowledges that the Software and User Documentation (collectively "Technical Data") are subject to United States export controls under the U. S. Export Administration Act, including the Export Administration Regulations, 15 C.F.R. Parts 730 et seq. (collectively, "Export Control Laws"). You agree to comply with all requirements of the Export Control Laws with respect to the Technical Data. Without limiting the foregoing, You will not (a) export, re-export, divert or transfer any such Technical Data, or any direct product thereof, to any destination, company, or person restricted or prohibited by Export Control Laws; (b) disclose any such Technical Data to any national of any country when such disclosure is restricted or prohibited by the Export Control Laws; or (c) export or re-export the Technical Data, directly or indirectly, for nuclear, missile, or chemical/biological weaponry end uses prohibited by the Export Control Laws.
6.6 U. S. Government Rights. The Software and User Documentation are deemed to be "commercial computer software" and "commercial computer software documentation" as defined in FAR Section 12.212 and DFARS Section 227.7202, as applicable. Any use, modification, reproduction, release, performance, display, or disclosure of the Software and User Documentation by the U.S. government will be solely in accordance with the terms of this Agreement
6.7 Governing Law; Jurisdiction; Dispute Resolution. This Agreement will be governed by and construed in accordance with the substantive laws of California, U. S. A. Any suits related to this Agreement shall be brought in the federal courts for the Northern District of California or the state courts in Santa Clara County, California. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The Uniform Computer Information Transactions Act, as adopted or amended from time to time, does not apply to this Agreement or the Software.
6.8 Amendment. This Agreement may only be modified by a written document signed by an authorized representative of Serena and by You.
6.9 Survival. Any terms of this Agreement which by their nature extend beyond the termination or expiration of this Agreement will remain in effect. Such terms will include, without limitation, all provisions herein relating to limitation of liability, third party terms, title and ownership of Software, and all general provisions.