CITRIX® LICENSE AGREEMENT
CITRIX® LICENSE AGREEMENT
This is a legal agreement (“AGREEMENT”) between you, the Licensed User, and Citrix Systems, Inc., Citrix Systems International GmbH, or Citrix Systems Asia Pacific Pty Ltd. Your location of receipt of this product or feature release (both hereinafter “PRODUCT”) or technical support (hereinafter “SUPPORT”) determines the providing entity hereunder (the applicable entity is hereinafter referred to as “CITRIX”). Citrix Systems, Inc., a Delaware corporation, licenses this PRODUCT in the Americas and Japan and provides SUPPORT in the Americas. Citrix Systems International GmbH, a Swiss company wholly owned by Citrix Systems, Inc., licenses this PRODUCT and provides SUPPORT in Europe, the Middle East, and Africa, and licenses the PRODUCT in Asia and the Pacific (excluding Japan). Citrix Systems Asia Pacific Pty Ltd. provides SUPPORT in Asia and the Pacific (excluding Japan). Citrix Systems Japan KK provides SUPPORT in Japan. BY INSTALLING AND/OR USING THE PRODUCT, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT INSTALL AND/OR USE THE PRODUCT.
1. GRANT OF LICENSE.
Definitions. “Open Source Software” means the operating system software of the PRODUCT distributed by Citrix under an open source licensing model (e.g., the GNU General Public License, BSD or a license similar to those approved by the Open Source Initiative). Notwithstanding anything set forth in this AGREEMENT, Customer’s use of Open Source Code shall in all ways be governed by the open source license indicated as applicable to the code at http://www.citrix.com/buy/licensing/open-source.html. “Citrix NetScaler Gateway VPX” means the virtual appliance object code and any other object code of the PRODUCT that is not Open Source Software and that is licensed pursuant to this AGREEMENT; and “SOFTWARE” means the PRODUCT and accompanying user documentation.
Grant. Citrix NetScaler Gateway VPX provides services on a virtual machine as specified in the user documentation. This PRODUCT is activated by licenses (“Licenses”). Except as set forth herein, this PRODUCT is licensed for a specific quantity of virtual machines. If you received this PRODUCT as a component of XenDesktop VDI or Enterprise Edition, your Licenses are limited to use on virtual machine(s) running Citrix NetScaler Gateway VPX in support of XenDesktop, but exclude use of SmartAccess Client and Endpoint analysis. If you received this PRODUCT as a component of XenApp timely manner. CITRIX is not required to provide any SUPPORT relating to problems arising out of: (i) your customization to the operating system or environment that adversely affects the SOFTWARE; (ii) any alterations of or additions to the SOFTWARE performed by parties other than CITRIX; (iii) use of the SOFTWARE on a processor and peripherals other than the processor and peripherals for which such SOFTWARE was designed and licensed for use on; or (iv) SOFTWARE that has reached End-of-Life. In situations where CITRIX cannot provide a satisfactory resolution to your critical problem through normal SUPPORT methods, CITRIX may engage its product development team to create a private fix. Private fixes are designed to address your specific situation and may not be distributed by you outside your organization without written consent from CITRIX. CITRIX retains all right, title, and interest in and to all private fixes. Any hotfixes or private fixes are not SOFTWARE under the terms of this AGREEMENT and they are not covered by the Limited Warranty or Infringement Indemnification applicable to SOFTWARE, to the extent permitted by applicable law. With respect to infrastructure assessments or other consulting services, all intellectual property rights in all reports, preexisting works and derivative works of such preexisting works, as well as installation scripts and other deliverables and developments made, conceived, created, discovered, invented, or reduced to practice in the performance of the assessment or other consulting services are and shall remain the sole and absolute property of CITRIX, subject to a worldwide, nonexclusive License to you for internal use.
4. DESCRIPTION OF OTHER RIGHTS, LIMITATIONS, AND OBLIGATIONS. Unless expressly permitted by applicable law, you may not transfer, rent, timeshare, or lease the SOFTWARE. If you purchased Licenses for the SOFTWARE to replace other CITRIX Licenses for other CITRIX SOFTWARE and such replacement is a condition of the transaction, you agree to destroy those other CITRIX Licenses and retain no copies after installation of the new Licenses and SOFTWARE. You shall provide the serial numbers of such replaced Licenses and corresponding replacement Licenses to the reseller, and upon request, directly to CITRIX for license tracking purposes. In the event you make a transfer of the SOFTWARE permitted by law, you must uninstall the SOFTWARE and Licenses, transfer them to the transferee and retain no copies. The transferee must accept the terms of this AGREEMENT upon installation. All warranty, Subscription Advantage, SUPPORT and infringement indemnification rights will terminate upon such transfer and such programs will not be available to the transferee. You must comply with applicable export laws with respect to such a transfer. In any event, you may not modify, translate, reverse engineer, decompile, disassemble, create derivative works based on, or copy the SOFTWARE, except as specifically licensed herein or to the extent such foregoing restriction is expressly prohibited by applicable law. You may not remove any proprietary notices, labels, or marks on any SOFTWARE. To the extent permitted by applicable law, you agree to allow CITRIX to audit your compliance with the terms of this AGREEMENT upon prior written notice during normal business hours. Notwithstanding the foregoing, this AGREEMENT shall not prevent or restrict you from exercising additional or different rights to any free, open source code, documentation and materials contained in or provided with the SOFTWARE in accordance with the applicable free, open source license for such code, documentation, and materials.
YOU MAY NOT USE, COPY, MODIFY, OR TRANSFER THE SOFTWARE OR ANY COPY IN WHOLE OR IN PART, OR GRANT ANY RIGHTS IN THE SOFTWARE OR ACCOMPANYING DOCUMENTATION, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT. ALL RIGHTS NOT EXPRESSLY GRANTED ARE RESERVED BY CITRIX OR ITS SUPPLIERS.
You hereby agree, that to the extent that any applicable mandatory laws (such as, for example, national laws implementing EC Directive 91/250 on the Legal Protection of Computer Programs) give you the right to perform any of the aforementioned activities without the consent of CITRIX to gain certain information about the SOFTWARE, before you exercise any such rights, you shall first request such information from CITRIX in writing detailing the purpose for which you need the information. Only if and after CITRIX, at its sole discretion, partly or completely denies your request, shall you exercise your statutory rights.
5. INFRINGEMENT INDEMNIFICATION. CITRIX shall indemnify and defend, or at its option, settle any claim, suit, or proceeding brought against you based on an allegation that the Citrix NetScaler Gateway VPX (excluding VPX Express) infringes upon any patent or copyright of any third party (“Infringement Claim”), provided you promptly notify CITRIX in writing of your notification or discovery of an Infringement Claim such that CITRIX is not prejudiced by any delay in such notification. CITRIX will have sole control over the defense or settlement of any Infringement Claim and you will provide reasonable assistance in the defense of the same. Following notice of an Infringement Claim or if CITRIX believes such a claim is likely, CITRIX may at its sole expense and option: (i) procure for you the right to continue to use the alleged infringing Citrix NetScaler Gateway VPX; (ii) replace or modify the Citrix NetScaler Gateway VPX to make it non-infringing; or (iii) accept return of the SOFTWARE and provide you with a refund as appropriate. CITRIX assumes no liability for any Infringement Claims or allegations of infringement based on: (i) your use of any Citrix NetScaler Gateway VPX after notice that you should cease use of the same due to an Infringement Claim; (ii) any modification of the Citrix NetScaler Gateway VPX by you or at your direction; or (iii) your combination of Citrix NetScaler Gateway VPX with other programs, data, hardware, or other materials, if such Infringement Claim would have been avoided by the use of the Citrix NetScaler Gateway VPX alone. THE FOREGOING STATES YOUR EXCLUSIVE REMEDY WITH RESPECT TO ANY INFRINGEMENT CLAIM AND DOES NOT COVER OPEN SOURCE SOFTWARE.
6. LIMITED WARRANTY AND DISCLAIMER. CITRIX warrants that for a period of ninety (90) days from the date of delivery of the SOFTWARE to you, the PRODUCT (excluding VPX Express) will perform substantially in accordance with the CITRIX PRODUCT documentation published by CITRIX and included with the PRODUCT. CITRIX and its suppliers’ entire liability and your exclusive remedy under this warranty (which is subject to you returning the SOFTWARE to CITRIX or an authorized reseller) will be, at the sole option of CITRIX and subject to applicable law, to replace the media and/or SOFTWARE or to refund the purchase price and terminate this AGREEMENT. CITRIX will provide the SUPPORT requested by you in a professional and workmanlike manner, but CITRIX cannot guarantee that every question or problem raised by you will be resolved or resolved in a certain amount of time.
TO THE EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT FOR THE ABOVE LIMITED WARRANTY FOR SOFTWARE, CITRIX AND ITS SUPPLIERS MAKE AND YOU RECEIVE NO WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE; AND CITRIX AND ITS SUPPLIERS SPECIFICALLY DISCLAIM WITH RESPECT TO SOFTWARE, UPDATES, SUBSCRIPTION ADVANTAGE, AND SUPPORT ANY CONDITIONS OF QUALITY, AVAILABILITY, RELIABILITY, SECURITY, LACK OF VIRUSES, BUGS, OR ERRORS, AND ANY IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. THE SOFTWARE IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE OR DISTRIBUTION WITH ANY EQUIPMENT THE FAILURE OF WHICH COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. YOU ASSUME THE RESPONSIBILITY FOR THE SELECTION OF THE SOFTWARE AND HARDWARE TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE SOFTWARE AND HARDWARE.
7. PROPRIETARY RIGHTS. No title to or ownership of the Citrix NetScaler Gateway VPX is transferred to you. CITRIX and/or its licensors own and retain all title and ownership of all intellectual property rights in and to the Citrix NetScaler Gateway VPX, including any adaptations or copies. You acquire only a limited License to use the Citrix NetScaler Gateway VPX.
8. EXPORT RESTRICTION. You agree that you will not export, re-export, or import the SOFTWARE in any form without the appropriate government licenses. You understand that under no circumstances may the SOFTWARE be exported to any country subject to U.S. embargo or to U.S.-designated denied persons or prohibited entities or U.S. specially designated nationals.
9. LIMITATION OF LIABILITY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT NEITHER CITRIX NOR ITS AFFILIATES, SUPPLIERS, OR AUTHORIZED DISTRIBUTORS SHALL BE LIABLE FOR ANY LOSS OF DATA OR PRIVACY, LOSS OF INCOME, LOSS OF OPPORTUNITY OR PROFITS, COST OF RECOVERY, LOSS ARISING FROM YOUR USE OF THE SOFTWARE OR SUPPORT, OR DAMAGE ARISING FROM YOUR USE OF THIRD PARTY SOFTWARE OR HARDWARE OR ANY OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT; OR THE USE OF THE SOFTWARE OR SUPPORT, REFERENCE MATERIALS, OR ACCOMPANYING DOCUMENTATION; OR YOUR EXPORTATION, REEXPORTATION, OR IMPORTATION OF THE SOFTWARE, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY. THIS LIMITATION WILL APPLY EVEN IF CITRIX, ITS AFFILIATES, SUPPLIERS, OR AUTHORIZED DISTRIBUTORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE LIABILITY OF CITRIX, ITS AFFILIATES, SUPPLIERS, OR AUTHORIZED DISTRIBUTORS EXCEED THE AMOUNT PAID FOR THE SOFTWARE OR SUPPORT AT ISSUE. YOU ACKNOWLEDGE THAT THE LICENSE OR SUPPORT FEE REFLECTS THIS ALLOCATION OF RISK. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. For purposes of this AGREEMENT, the term “CITRIX AFFILIATE” shall mean any legal entity fifty percent (50%) or more of the voting interests in which are owned directly or indirectly by Citrix Systems, Inc. Affiliates, suppliers, and authorized distributors are intended to be third party beneficiaries of this AGREEMENT.
10. TERMINATION. This AGREEMENT is effective until terminated. You may terminate this AGREEMENT at any time by removing the SOFTWARE from your computers and destroying all copies and providing written notice to CITRIX with the serial numbers of the terminated licenses. CITRIX may terminate this AGREEMENT at any time for your breach of this AGREEMENT. Unauthorized copying of the SOFTWARE or the accompanying documentation or otherwise failing to comply with the license grant of this AGREEMENT will result in automatic termination of this AGREEMENT and will make available to CITRIX all other legal remedies. You agree and acknowledge that your material breach of this AGREEMENT shall cause CITRIX irreparable harm for which monetary damages alone would be inadequate and that, to the extent permitted by applicable law, CITRIX shall be entitled to injunctive or equitable relief without the need for posting a bond. Upon termination of this AGREEMENT, the License granted herein will terminate and you must immediately destroy the SOFTWARE and accompanying documentation, and all backup copies thereof.
11. U.S. GOVERNMENT END-USERS. If you are a U.S. Government agency, in accordance with Section 12.212 of the Federal Acquisition Regulation (48 CFR 12.212 (October 1995)) and Sections 227.7202-1 and 227.7202-3 of the Defense Federal Acquisition Regulation Supplement (48 CFR 227.7202-1, 227.7202-3 (June 1995)), you hereby acknowledge that the SOFTWARE constitutes “Commercial Computer Software” and that the use, duplication, and disclosure of the SOFTWARE by the U.S. Government or any of its agencies is governed by, and is subject to, all of the terms, conditions, restrictions, and limitations set forth in this standard commercial license AGREEMENT. In the event that, for any reason, Sections 12.212, 227.7202-1 or 227.7202-3 are deemed not applicable, you hereby acknowledge that the Government’s right to use, duplicate, or disclose the SOFTWARE are “Restricted Rights” as defined in 48 CFR Section 52.227-19(c)(1) and (2) (June 1987), or DFARS 252.227-7014(a)(14) (June 1995), as applicable. Manufacturer is Citrix Systems, Inc., 851 West Cypress Creek Road, Fort Lauderdale, Florida, 33309.
12. AUTHORIZED DISTRIBUTORS AND RESELLERS. CITRIX authorized distributors and resellers do not have the right to make modifications to this AGREEMENT or to make any additional representations, commitments, or warranties binding on CITRIX.
13. CHOICE OF LAW AND VENUE. If provider is Citrix Systems, Inc., or Citrix Systems Japan KK, this AGREEMENT will be governed by the laws of the State of Florida without reference to conflict of laws principles and excluding the United Nations Convention on Contracts for the International Sale of Goods, and in any dispute arising out of this AGREEMENT, you consent to the exclusive personal jurisdiction and venue in the State and Federal courts within Broward County, Florida. If provider is Citrix Systems International GmbH, this AGREEMENT will be governed by the laws of Switzerland without reference to the conflict of laws principles, and excluding the United Nations Convention on Contracts for the International Sale of Goods, and in any dispute arising out of this AGREEMENT, you consent to the exclusive personal jurisdiction and venue of the competent courts in the Canton of Zurich. If provider is Citrix Systems Asia Pacific Pty Ltd, this AGREEMENT will be governed by the laws of the State of New South Wales, Australia and excluding the United Nations Convention on Contracts for the International Sale of Goods, and in any dispute arising out of this AGREEMENT, you consent to the exclusive personal jurisdiction and venue of the competent courts sitting in the State of New South Wales. If any provision of this AGREEMENT is invalid or unenforceable under applicable law, it shall be to that extent deemed omitted and the remaining provisions will continue in full force and effect. To the extent a provision is deemed omitted, the parties agree to comply with the remaining terms of this AGREEMENT in a manner consistent with the original intent of the AGREEMENT.
14. HOW TO CONTACT CITRIX. Should you have any questions concerning this AGREEMENT or want to contact CITRIX for any reason, write to CITRIX at the following address: Citrix Systems, Inc., Customer Service, 851 West Cypress Creek Road, Ft. Lauderdale, Florida 33309; Citrix Systems International GmbH, Rheinweg 9, CH-8200 Schaffhausen, Switzerland; or Citrix Systems Asia Pacific Pty Ltd., Level 3, 1 Julius Ave., Riverside Corporate Park, North Ryde NSW 2113, Sydney, Australia.
15. TRADEMARKS. Citrix, XenServer, XenMobile, NetScaler, and VPX are trademarks and/or registered trademarks of Citrix Systems, Inc., in the U.S. and other countries.