STANDARD TERMS AND CONDITIONS
IMPORTANT: BY DOWNLOADING OR INSTALLING SOFTWARE, YOU ARE INDICATING YOUR ASSENT
TO THE TERMS OF THIS LICENSE AGREEMENT. IF YOU DO NOT AGREE WITH ALL OF THE
FOLLOWING TERMS, DO NOT DOWNLOAD OR INSTALL SOFTWARE OR DISCONTINUE USE
IMMEDIATELY AND DESTROY ALL COPIES.
PLEASE READ FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE PROCEEDING. THIS
LICENSE AGREEMENT ("AGREEMENT") CONTAINS WARRANTY AND LIABILITY DISCLAIMERS.
In consideration of the mutual promises and upon the terms and conditions set
forth below, the parties agree as follows:
1.1. Andrisoft Software. "WANGUARD"/"WANSIGHT" shall mean the Andrisoft software
and any embedded runtime programs of Andrisoft licensors, including all copies
in whole or part, backups, related documentation and user manuals, information
relating to the software programs, printed listing of code, and any patches,
bug fixes, workarounds, upgrades, enhancements and updates subsequently provided
by Andrisoft pursuant to the terms of this Agreement.
1.2. Materials. "Materials" shall mean Andrisoft materials distributed to, or
available for online access by, Licensee pursuant to Section 8 of this Agreement
for implementation purposes, including without limitation custom handouts.
1.3. Server Cluster. "Server Cluster" shall mean one or more independent servers
managed as a single system in order to balance application load across the
servers at the company/institution location designated on the signature cover
1.4. Services. "Services" shall mean those Andrisoft services elected to be
received by Licensee and provided by Andrisoft pursuant to the terms of this
1.5. User. "Users" shall mean those persons authorized to use the Andrisoft
Software, designated by Licensee in the Andrisoft Purchase Order and for whom a
license fee has been paid. If the Software is installed on a network system, or
on a computer connected to a file server or other system that physically allows
shared access to the Software, Licensee agrees to prevent use of the Software by
more than one user. Software is limited to those rights expressly set out herein
and may only be used by the number of users indicated by the number of issued
licenses, except as otherwise expressly permitted in this Agreement.
1.6 Update. A product update is defined as a fix or enhancement to a product. In
software terms, an update (or patch) meant correct bugs (or problems) within the
software that makes it perform less than optimal. Updates are generally
downloadable and free.
1.7 Upgrade. A product upgrade is the purchase of a new version in a product
family. If you have a previous version in a product family, then you may receive
a discounted price when you purchase an upgrade.
2. GRANT OF LICENCE
2.1. License Grant. Subject to the terms and conditions of this Agreement,
Andrisoft hereby grants to Licensee a nonexclusive, nontransferable,
non-assignable license under Andrisoft's intellectual property rights to use
the Andrisoft Software for Licensee's internal business purposes in connection
with the number of servers for which license fees have been paid pursuant to
the Purchase Order from Andrisoft. Licensee shall use its good faith reasonable
efforts to notify Users of the existence of this license Agreement and the
license restrictions. This is a license agreement and not an agreement for sale
(The Software enclosed is licensed, not sold.). All rights not specifically
granted shall be reserved to Andrisoft.
2.2. Delivery updates and upgrades. Andrisoft shall deliver electronically to
Licensee a copy of the Software and related documentation, if any, or provide
access to the Software via Internet (download from web page
http://www.andrisoft.com/) after the date on which the parties sign the
applicable License Agreement. Andrisoft shall also make available to Licensee
either by electronic download or via the Internet one copy of updates, if any,
made generally available by Andrisoft to other Licensees at no charge. If this
copy of the Software is an update or upgrade from an earlier version of the
Software, it is provided to you on a license exchange basis. You agree by your
installation and use of this copy of the Software to voluntarily terminate your
earlier Agreement and that you will not continue to use the earlier version of
the Software or transfer it to another person or entity. Updates or upgrades
may be licensed to you under additional or different terms, if so specified in
2.3. Compliance. Once every year, Licensee shall provide Andrisoft
with a written statement, certified by an authorized representative of
Licensee, listing the number of servers within the designated Server Cluster
that is using the Andrisoft Software, and stating that the use of the Andrisoft
Software has been reviewed and that each copy of the Andrisoft Software is being
used solely pursuant to the provisions of this Agreement. Andrisoft will have
the right to conduct and/or direct an independent accounting firm to conduct,
during normal business hours, an audit of the appropriate records of Licensee to
verify the number of copies of the Andrisoft Software in use, the computer
systems on which such copies are installed.
2.4. Copies. Licensee may make additional copies of the Software only to the
extent reasonably necessary (i) for Licensee's internal business purposes in
connection with number of servers for which license fees have been paid; and
(ii) for archival and back-up purposes. Software is copyrighted by Andrisoft and
retains title and ownership of the Software, and all copies of the Software. You
agree to hold the Software in confidence and to take reasonable steps to prevent
2.5. License Fee. In consideration of the license granted in this Agreement,
Licensee agrees to pay Andrisoft the license fee specified in the Purchase Order
from Andrisoft according to the payment terms. In consideration of any license
term extensions, Licensee agrees to pay Andrisoft the applicable additional
license fees also on such payment terms.
3. LICENSE RESTRICTIONS
3.1. Restrictions. Licensee shall not modify, adapt, translate, reverse
engineer, decompile, disassemble, or create derivative works based on the
Andrisoft Software, except to the extent expressly permitted by applicable law
and to the extent the parties shall not be permitted by that applicable law to
exclude or limit such rights. Information relating to the Andrisoft Software
necessary to enable the production of interoperable software shall be available
from Andrisoft on request. Licensee may only use the embedded runtime programs
of Andrisoft's licensors with and as a part of the Andrisoft Software and is
prohibited from using such embedded runtime programs for application development
purposes or otherwise outside the scope defined in Section 2.1 of this
Agreement. The Licensee shall not publish, sell or offer for sale the Andrisoft
Software, nor may any part of the Andrisoft Software be made accessible on any
computer network external to the Licensee's network, nor may the Licensee offer
to sell or sell commercial services utilizing the Andrisoft Software. The
Licensee shall take all reasonable precautions to prevent third parties from
using the Andrisoft Software in any way that would constitute a breach of this
Agreement including, without limitation, such precautions, as Licensee would
otherwise take to protect its own proprietary software or hardware or
3.2. Third Parties. Licensee shall not (i) host the Andrisoft Software for
access by any non-User; (ii) rent, lease, sublicense, transfer, resell for
profit or otherwise distribute the Andrisoft Software to any third party; (iii)
offer the Andrisoft Software in connection with timesharing, facility
management, or service bureau usage; or (iv) use the Andrisoft Software to
develop or modify applications or perform other programming tasks on behalf
of Licensee or any third party; (v) licensee may not provide or make available
by any means the license key to any third party and undertake to take such a
steps as are necessary in order to protect the license key against unauthorized
use; (vi) licensee allow Andrisoft and its distributors to employ technical
means in order to check the conformity of your use of the software to the terms
of this license. Should a multiple use of the license key be detected, Andrisoft
is entitled to damages for the prejudice suffered and may terminate your use of
the software without any compensation.
4. INTELLECTUAL PROPERTY RIGHTS
4.1. Ownership. This agreement gives you limited rights to use the software. The
Andrisoft Software is owned by Licensor and is protected by copyright. Licensee
acknowledges that the Andrisoft Software, and all trade secret, copyright,
patent, trademark, trade name and other intellectual and proprietary rights
therein, are and at all times shall remain the valuable property of Andrisoft
and its licensors, or their respective successors or assignees. All rights not
specifically granted in this Agreement, including Local, Federal and
International Copyrights, are reserved by Andrisoft and its suppliers. The
structure, organization and code of the software are valuable trade secrets and
confidential information of Andrisoft.
4.2. Proprietary Markings. Licensee agrees to respect and not to alter, remove
or conceal any copyright, trademark, government restricted rights, trade name
or other proprietary marking that may appear on the Andrisoft Software.
5. WARRANTY AND DISCLAIMER
5.1. Warranty. Andrisoft warrants that the current version of the Andrisoft
Software shall operate substantially in accordance with the current User's
manual generally released by Andrisoft to its Licensees, provided the Licensee
uses the Andrisoft Software in accordance with the manual and does not modify or
otherwise alter the Andrisoft Software, when used with the specified hardware
configuration and under recommended conditions.
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANDRISOFT, ITS DEALERS,
DISTRIBUTORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE
THE SCOPE OF THIS WARRANTY.
(USA ONLY) SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE
ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL
RIGHTS AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.
This software and accompanying written documentation are licensed "as is". In no
event and under no circumstances will Andrisoft, or its officers, employees,
agents, subcontractors or affiliates be liable to you for any consequential,
incidental, special, or indirect damages (including, but not limited to, damages
for loss of business profits, business interruption, loss of business
information, and the like) arising out of the use of or inability to use the
software or accompanying documentation.
5.2. Sole Remedy. In the event the Andrisoft Software fails to perform as
warranted above and Licensee advises Andrisoft in writing of a reproducible
error, Andrisoft shall use commercially reasonable efforts to correct any
defect in the Andrisoft Software. If the software is faulty and Andrisoft is
unable to correct a defect the end user can demand, according to choice,
replacement of the program or cancellation of the License Agreement. The end
user must inform the Andrisoft of any obvious defect in writing within 30
calendar days of delivery. If this deadline is missed guarantee rights due
to the defect concerned are excluded.
This Section 5.2 sets forth Licensee's sole remedy, and Andrisoft's sole
obligation, relating to performance of the Andrisoft Software and for breach of
the warranty in Section 5.1. Andrisoft shall have no responsibility if the
Software has been altered in any way, if the media has been damaged by accident,
abuse or misapplication, or if the failure arises out of use of the Software
with other than a recommended hardware and software configuration.
5.3. Disclaimer. EXCEPT FOR THE WARRANTY IN SECTION 5.1, 5.2 THE ANDRISOFT
SOFTWARE AND THE SERVICES ARE PROVIDED WITHOUT WARRANTY OF ANY KIND, INCLUDING
WITHOUT LIMITATION, ALL WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL,
INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, AGAINST
INFRINGEMENT, TITLE OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTY
ARISING BY STATUTE OR OTHERWISE IN LAW, OR FROM A COURSE OF DEALING OR USAGE OF
TRADE. ANDRISOFT SPECIFICALLY DOES NOT WARRANT THAT THE ANDRISOFT SOFTWARE
SHALL MEET ALL OF LICENSEE'S REQUIREMENTS OR SHALL OPERATE IN ALL THE
COMBINATIONS WHICH MAY BE SELECTED FOR USE BY LICENSEE; THAT THE OPERATION OF
THE ANDRISOFT SOFTWARE SHALL BE ERROR-FREE OR UNINTERRUPTED; OR THAT ALL ERRORS
OR DEFECTS IN THE ANDRISOFT SOFTWARE SHALL BE CORRECTED. SOME JURISDICTIONS DO
NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO THAT THE ABOVE EXCLUSIONS MAY
NOT APPLY TO LICENSEE. THIS WARRANTY GIVES LICENSEE SPECIFIC LEGAL RIGHTS.
LICENSEE MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
6. LICENSE KEYS
6.1. License Keys. Licensee acknowledges that the Software needs to be activated
by identification codes. Licensee shall receive their license key through e-mail
or Andrisoft website using the unique license number provided to Licensee. The
license key can also be used to make updates and/or upgrades to Andrisoft
Software when they become available. You agree to hold the License Key in
confidence and to take reasonable steps to prevent disclosure.
7. LIMITATION OF LIABILITY
7.1. Limitation of Liability. It is expressly agreed that each party is maximum
liability for damages to the other party hereunder, regardless of the form of
legal action, whether in contract or in tort, including negligence, shall in no
event exceed the actual payments received by Andrisoft for the Andrisoft
Software or the Services that caused such damage or shall be directly related
to the cause of action, except that no such limitation on damages shall apply
to losses due to Licensee's breach of the license or license restrictions.
ANDRISOFT TOTAL LIABILITY TO YOU FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER
WILL BE LIMITED TO THE AMOUNT PAID BY YOU FOR THE SOFTWARE THAT CAUSED SUCH
Licensor provides the Software on an "as is" basis. Licensee uses it at its own
risk, and Licensor, its officers, employees, distributors, directors,
subcontractors and agents are not liable for any errors or omissions in its
content or delivery, or for any form of loss or damage (including but not
limited to any consequential, indirect, incidental, special, or exemplary
damages (including lost profits) even if known to Licensor) that may result from
its use. Licensor explicitly disclaims all warranties, including warranties of
merchantability, fitness for a particular purpose, or non- infringement.
Licensor bears no responsibility for supplying assistance for repair of the
7.2. No Consequential Damages. IN NO EVENT SHALL EITHER PARTY (DISTRIBUTORS,
SUBCONTRACTORS, SUPPLIERS, EMPLOYEES) OR ANDRISOFT'S LICENSORS BE LIABLE UNDER
THIS AGREEMENT FOR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES,
INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF BUSINESS OR BUSINESS
INTERUPTION, LOSS OF REVENUE, LOSS OF USE OR LOSS OF DATA, EVEN IF ADVISED OF
THE POSSIBILITY THEREOF, OR, IF REASONABLY FORESEEABLE, INCURRED BY THE OTHER
PARTY OR CLAIMED AGAINST THE OTHER PARTY BY ANY OTHER PARTY, EXCEPT THAT NO SUCH
LIMITATION ON CONSEQUENTIAL DAMAGES SHALL APPLY IN THE EVENT OF A BREACH BY
LICENSEE OF THE LICENSE OR LICENSE RESTRICTIONS.
8.1. Services. In connection with the implementation and use of the Andrisoft
Software by Licensee, Andrisoft will provide Services to Licensee or Customer
at the rates and conditions specified in the Andrisoft Service Support
8.2. Reimbursement. Customer shall pay or reimburse to Andrisoft all reasonable
travel, accommodation and other out-of-pocket expenses incurred by Andrisoft,
its employees, subcontractors and consultants in connection with Andrisoft's
provision of Services under this Agreement.
8.3. Rights as to Materials and Services. The Materials may not be reproduced or
distributed without the express written consent of Andrisoft. Customer
acknowledges that the Materials, and all copyright and other intellectual and
proprietary rights therein, are and at all times shall remain the valuable
property of Andrisoft and its licensors, or their respective successors or
assignees. Customer agrees to respect and not to alter, remove or conceal any
copyright, trademark, trade name or other proprietary marking that may appear on
the Materials. In addition, Customer may not record by any means the words or
actions of any Andrisoft representative while providing Services without the
express written consent of Andrisoft.
8.4. Ownership of Intellectual Property. Andrisoft will own and Customer hereby
assigns to Andrisoft all right, title, and interest in the copyright, patent,
mask works and all other intellectual property rights that may be conceived,
reduced to practice, created or developed by Andrisoft in the performance of
Services under this Agreement.
8.5. Future Activities. Customer acknowledges that Andrisoft and its employees,
consultants or subcontractors may from time to time perform services for others
or incorporate functionality in its Andrisoft Software that are similar or
identical to Services performed for or a deliverable created for Customer under
this Agreement. So long as no Confidential Information of Licensee is disclosed,
Andrisoft shall not be restricted in any way from developing or providing to
others software, forms, materials, methodologies, modifications or services
which are similar or identical to Services performed for, or deliverables
created for, Customer hereunder, or be restricted in its use of personnel
providing Services hereunder.
8.6. Payment for Services. Services will be billed upon delivery, and all
invoices for Services and expenses will be payable upon receipt. Andrisoft
reserves the right to discontinue the provision of any and all Services if
payment is not received in accordance with the Purchase Order from Andrisoft or
the applicable Schedules hereto.
8.7. Compensation Upon Termination of Services. In the event of any termination
of Services prior to completion, payment shall immediately be due for
performance rendered up to the effective date of such termination, including
9.1. Termination. This Agreement shall be effective from the Effective Date and
shall continue for one year, unless earlier terminated in accordance with the
provisions of this Section 10. This Agreement may be renewed for additional
one-year terms on the mutual agreement of the parties; upon payment of the
applicable license fee for each renewal, Andrisoft shall provide Licensee a
license key. Licensee may terminate the License Agreement at any time by
destroying all copies of the software.
9.2. General. Upon any breach by Licensee of Sections 2.1 or 3, Andrisoft shall
have the right, upon notice, to immediately terminate this Agreement and the
licenses granted hereunder. Upon any material breach or default of this
Agreement by either party, the other party shall have the right to terminate
this Agreement and the licenses granted hereunder effective on thirty (30) days'
notice; such termination shall become automatically effective unless the
breaching or defaulting party shall have cured any material breach or default
prior to the expiration of the thirty (30) days' period.
9.3. Consequences. In the event of termination of this Agreement for any reason,
Licensee shall promptly (i) discontinue all use of the Andrisoft Software; (ii)
erase or destroy any Andrisoft Software contained in the computer memory or
data storage apparatus under the control of Licensee; (iii) return to Andrisoft
or destroy all copies of the Andrisoft Software provided by Andrisoft in
Licensee's possession; and (iv) certify in writing to Andrisoft, within thirty
(30) days of termination of this Agreement that Licensee has complied with
9.4. Survival. Sections 1, 3, 4, 7, 8, 9.3, 10.3, 11 and 12 hereof shall survive
expiration or any termination of this Agreement.
10. CONFIDENTIAL INFORMATION
10.1. Confidential Information. Each party acknowledges that it shall have
access to certain confidential information of the other party, including without
limitation, the Andrisoft Software, the Services and the Materials
("Confidential Information"). Each party agrees that it shall use such
Confidential Information only in the performance of this Agreement, shall not
disclose such Confidential Information to any third party (except as required by
law or to that party's attorneys, accountants or other fiduciary advisers as
reasonably necessary), and shall take reasonable precautions to protect the
confidentiality of such Confidential Information of the other. Such reasonable
precautions shall include, but not be limited to, disclosing Confidential
Information only to those employees who have a need to have access solely for
the performance of this Agreement and taking appropriate measures by instruction
and agreement prior to disclosure to such employees to assure against
unauthorized use or disclosure.
10.2. Exclusions. Confidential Information shall not include information that:
(i) is rightfully received by the receiving party from a third party without an
obligation of confidentiality; (ii) is required to be disclosed by a judicial or
governmental order, in which case the receiving party shall promptly notify the
disclosing party and take reasonable steps to assist in contesting such order or
in protecting the disclosing party's rights prior to disclosure; or (iii) was
publicly known at the time of disclosure to receiving party or becomes publicly
known through no act or omission of the receiving party.
10.3. Return. Except to the extent Confidential Information shall be necessary
to perform the receiving party's obligations hereunder, the disclosing party may
at any time request that the receiving party return all or any Confidential
Information in its possession or under its control and not make or retain any
copies, summaries or notes.
11.1. Provision of Notice. Any notice that is required to be given hereunder
shall be in writing and delivered by courier service or mailed by pre-paid
registered mail addressed to the parties' respective addresses as provided on
the Signature Cover Page. Any such notice so delivered shall be deemed to have
been received by the addressee at the time and date when actually delivered or
in any event within ten (10) days after sending in the manner provided herein.
The addresses provided herein may be changed at any time on prior written
11.2. Assignment. Licensee shall not assign any rights or obligations arising
under this Agreement. This Agreement shall be binding on the successors and
assigns of Andrisoft.
11.3. Waiver. The failure of either party to enforce in any one or more
instances any of the terms and conditions of this Agreement shall not be
construed as a waiver of future performance of any such term or condition.
Waiver of any term or condition shall only be deemed to have been made if
expressed in writing by the party granting such waiver.
11.4. Severability. If any provision of this Agreement shall be held by a court
of law of competent jurisdiction to be illegal, invalid or unenforceable, that
provision shall be reformed, construed and enforced to the maximum extent
permissible, and the remaining provisions shall remain in full force and effect.
11.5. Governing Law. The parties to the Agreement agree that this Agreement will
be governed by, interpreted, and construed in accordance with the laws of
Romania. Each of the parties hereby irrevocably submits to the exclusive venue
and jurisdiction of any federal or state court sitting in Timisoara, Romania
in any action, suit or proceeding brought against it by the other party under
this Agreement. The UN Convention on Contracts for the International Sale of
Goods will not apply.
11.6. Entire Agreement. This Agreement consists of the Signature Cover Page, the
Standard Terms and Conditions, Service Support Agreement and Purchase Order from
Andrisoft which collectively constitute the entire understanding between the
parties, and supersede all prior discussions, representations, understandings or
agreements, whether oral or in writing, between the parties with respect to the
subject-matter of this Agreement. The subject matter of this Agreement is
limited to the rights expressly granted herein. The terms of this Agreement
shall have no force and effect with respect to any claim based on the use of the
Andrisoft Software outside the scope of the licenses and rights expressly
granted herein. The preprinted provisions of Licensee's Purchase Order for the
Andrisoft Software licensed hereunder shall not apply, and the provisions set
forth herein shall prevail. In the event of any conflict between the terms of
these Standard Terms and Conditions and those terms set forth on the Signature
Cover Page, the Standard Terms and Conditions, Purchase Order from Andrisoft and
Service Support Agreement, the terms of these Standard Terms and Conditions
shall prevail. Any modification or amendment to this Agreement including the
Purchase Order, the Signature Cover Page, the Standard Terms and Conditions and
the Service Support Agreement must be in writing and signed by authorized
representatives of both parties.
11.7. Independent Contractors. The parties to this Agreement are and shall
remain independent contractors. Nothing herein shall be construed to create a
partnership or joint venture between them, and neither shall have the power or
authority to bind or obligate the other in any manner not expressly set forth
The Licensee has read this Agreement and agrees to be bound by its terms, and
further agrees that it constitutes the complete and entire agreement of the
parties and supersedes all previous communications, oral or written, and all
other communications between them relating to the license and to the subject
matter hereof. No representations or statements of any kind made by either
party, which are not expressly stated herein, shall be binding on such party.
This Agreement, including any contract provided for herein, shall be governed by
and construed in accordance with the laws of Romania.
If any part or provision of this Agreement shall be invalid or unenforceable,
such invalidity or enforceability shall not affect the validity or
enforceability of any other part or provision of this Agreement that shall
remain in full force and effect. The Parties shall then endeavor to replace such
invalid or unenforceable provision with a clause that is closest to the contents
of such invalid or unenforceable provision.