CA Wily Customer Experience Manager
Contents
1. environment or further or additional use of the CA Software for disaster recovery backup or archival purposes shall be subject to payment by Customer of the applicable fees to CA b modify unbundle or create derivative works of the CA Software c rent sell lease assign transfer or sublicense the CA Software or use the CA Software to provide hosting service bureau on demand or outsourcing services for the benefit of a third party d remove any proprietary notices labels or marks on or in any copy of the CA Software or Documentation or any CA Software or materials in which the CA Software or Documentation or portions thereof are embedded e use the CA Software in any manner that exceeds or is broader than the uses licensed to Customer or f reverse assemble decompile reverse engineer or otherwise translate the CA Software except to the extent specifically permitted by applicable law without the possibility of contractual waiver All rights not specifically granted hereunder are expressly reserved 7 General Terms 7 1 Export Rules Customer agrees that the CA Software is subject to export controls of the United States of America and import controls of any other country in which the CA Software may be used Customer agrees to export re export or import CA Software only in compliance with such laws and controls 7 2 Applicable Law Both Customer and CA consent to the application of the same laws as are applicable to the contra2. CA Europe Sarl may terminate the present License SPD as well as revoke the license hereby granted in the event of a breach by Customer and or Customer s Authorized End Users of this License SPD and or the agreement under which Customer has purchased the CA Software and or applicable Maintenance 8 Third Party Information and Terms If the CA Software contains third party software components and the third party licensor requires incorporation of specific license terms and conditions for such software into this CA license those third party software components and their specific terms and conditions which are incorporated by this reference are set forth in the Third Party Terms document located at https support ca com prodinfo tpterms 4 V2 1 EMEA License SPD_CA Wily Customer Experience Manager_Poland ENG_20110401
3. LIMITATIONS SO TO THAT EXTENT THE FOREGOING LIMITATION MAY NOT APPLY TO CUSTOMER If Customer claims under this warranty section Customer is not entitled or eligible to seek for the same warranty remedies from any other party under any another warranty provision 7 5 Ownership and Proprietary Information Title to ownership of and all rights in the intellectual property including but not limited to patents copyrights trademarks and trade secrets in the CA Software and Documentation any derivative works thereof and any goodwill accruing from the use of such CA Software and Documentation belong exclusively to and shall remain with CA and or its licensors Customer shall not make available or disclose such intellectual property to any third parties except as expressly permitted by this License SPD and shall take appropriate action including by instruction or agreement with Customer s employees who are permitted access to such information to satisfy Customer s obligations hereunder 3 V2 1 EMEA License SPD_CA Wily Customer Experience Manager_Poland ENG_20110401 technologies 7 6 Assignment Customer may not assign the License SPD the use of any CA Software or Customer s rights and obligations under the License SPD without the prior written consent of CA The License SPD shall be binding on the parties and all of their respective successors and assigns CA may assign the License SPD by written notice to Customer 7 7 Termination
4. QUENTIAL OR UNFORESEEABLE LOSS DAMAGE OR EXPENSE LOSS OF PROFITS LOSS OF BUSINESS LOSS OF OPPORTUNITY LOSS OR CORRUPTION OF DATA HOWEVER ARISING EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES BEING INCURRED 7 3 3 The parties agree the limitations and exclusions herein are fair and reasonable in all the circumstances of the Agreement 7 4 Warranty 7 4 1 CA warrants to Customer that a it has the authority to grant Customer the rights and licenses mentioned herein and b for the period of 30 days after delivery of the CA Software and subject to the CA Software being used in an operating environment stated in the Documentation as supported by CA the CA Software will materially conform to the specifications in the Documentation for such CA Software If it is established that CA has breached the warranty in subsection b above CA s only obligation and Customer s exclusive remedy shall be for CA to at its option 1 use reasonable efforts to cure the defect in the CA Software 2 replace the CA Software with CA Software that materially conforms to the specifications in the Documentation or 3 terminate the CA Software license and arrange a pro rata refund of the fees that Customer has paid Any refund of fees paid in accordance with the warranty provisions herein will terminate the license of the affected CA Software 7 4 2 This warranty and the remedies offered are applicable only if i the reported error or defect i
5. anty coverage on the Wily Hardware is provided by the third party warranty provider and not CA Customer must acquire at least one license per CPU MSU or IFL in order to purchase a CA Wily Transaction Impact Monitor TIM or CA Wily Transaction Event amp Statistics Server TESS Both a TIM and a TESS are required for any production installation CA Wily Solutions for Lab Environments Wily LAB is a single appliance that contains TIM and TESS capabilities but is not supported for a production environment The Wily LAB system includes one CPU license for CA Software at no additional charge 6 Licensing terms 1 V2 1 EMEA License SPD_CA Wily Customer Experience Manager_Poland ENG_20110401 technologies 6 1 License grant The license granted to Customer is a limited non exclusive non transferable and territory wide license The Territory is specified in the applicable order form in the section entitled Territory Customer s use of the license shall extend to use by Customer and Customer s Authorized End Users Authorized End Users means Customer and Customer s Affiliate s employees and independent contractors but excluding any outsourcer facilities management providers or application service provider Use of the CA Software by Authorized End Users shall at all times remain Customer s responsibility and liability Customer may use the CA Software for the operation of Customer s Affiliate s int
6. anty support available to CA customers can be found at _http www support ca com 5 Licensing Model When the Authorized Use Limitation is MSUs zAAPs or zlIPs i the MSUs shall be calculated by totaling the MSU capacity for all logical partitions or LPARs that run an application monitored by the CA Software ii the zAAPs shall be calculated by totaling the number of zAAP engines attached to such LPARs and iii the zlIPs shall be calculated by totaling the number of zIIP engines attached to such LPARs An LPAR means the division of a computer s processors memory and storage into multiple sets of resources so that each set of resources is operated independently with its own physical or virtual operating system instance and applications When the Authorized Use Limitation is IFLs the IFLs shall be calculated by totaling the number of IFL engines that run an application monitored by the CA Software Wily Hardware means the hardware server platform that is sold to you on your order form for purposes of operating the CA Software Once you have paid the fees applicable to such Wily Hardware title to the Wily Hardware shall pass to you Risk of loss passes to you upon shipment of the Wily Hardware A third party warranty services plan is included with your Wily Hardware purchase For further information on this third party warranty services plan please consult your local CA account representative Any warr
7. ct through which Customer purchased the license of the CA Software to govern interpret and enforce this License SPD without regard to conflict of law principles The United Nations Convention on Contracts for the International Sale of Goods will not apply to this License SPD 7 3 Limitation of Liability 7 3 1 CA s liability arising out of this Agreement shall be limited to the real damage and shall not exceed the total amount of fees paid by the CA partner for the CA Software that caused the damage or gave rise to claim unless such damage was caused by the willful default of CA or in cases of death or bodily injury or injury of health caused by gross negligence or willful default of CA or the grossly negligent 2 V2 1 EMEA License SPD_CA Wily Customer Experience Manager_Poland ENG_20110401 technologies or willful default of CA s legal representatives or persons whom CA delegates the performance of its contractual obligations In cases of claims based on product liability CA s liability shall be regulated by applicable law In case of a concurrence of claims based on contract and tort CA s liability based on tort is excluded to the maximum extent permitted under the applicable law 7 3 2 THE REMEDIES PROVIDED IN THE AGREEMENT ARE THE EXCLUSIVE REMEDIES OF THE PARTIES IN NO EVENT SHALL CA BE LIABLE TO CUSTOMER OR ANY OTHER PARTY WHETHER IN CONTRACT OR TORT OR OTHERWISE FOR ANY INCIDENTAL INDIRECT PUNITIVE EXEMPLARY SPECIAL CONSE
8. ernal data processing where an Affiliate shall mean any entity for which Customer holds greater than a fifty percent 50 interest or by force of law or contract but only for so long as Customer maintains that interest Customer may transfer such CA Software to new hardware site or location within the Territory upon prior written notice to CA and such transfer might be subject to the payment of additional fees to the local CA entity from which Customer has purchased the CA Software 6 2 Type of license The type of license Customer receives is designated in the order form for the CA Software and may include Perpetual License A perpetual license to use the CA Software Subscription License A license to use the CA Software for a specific length of time as set forth in the applicable order form When the license expires at the end of the applicable term Customer all Affiliates and Authorized End Users must stop using the CA Software if Customer has not obtained a new license 6 3 Use Prohibitions Except as expressly authorized by this License SPD Customer may not a copy reproduce distribute or disclose the CA Software provided that Customer may make a reasonable number of copies of the CA Software for bona fide cold standby disaster recovery backup and archival purposes and may use such copy for reasonable testing and in the event of a bona fide disaster recovery event Maintaining copies of the CA Software in a hot standby
9. s reasonably reproducible by CA ii Customer reports the alleged breach with reasonable specificity in writing within thirty 30 days from its occurrence iii Customer provides CA with reasonable assistance in the diagnosis and remedy of the applicable breach iv Customer has installed and is using all updates patches and fixes made available by CA for the affected CA Software v Customer has complied in all material respects with the terms and conditions of this License SPD and has materially complied with the Documentation for the affected CA Software and vi the error or defect is due solely to an error or omission on the part of CA its agents affiliates or employees 7 4 3 THESE WARRANTIES ARE CUSTOMER S EXCLUSIVE WARRANTIES AND REPLACE ALL OTHER WARRANTIES OR CONDITIONS EXPRESS OR IMPLIED INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF SATISFACTORY QUALITY NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE CA DOES NOT WARRANT THAT THE CA SOFTWARE WILL MEET CUSTOMER S REQUIREMENTS OR THAT USE OF THE CA SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN EXPRESS OR IMPLIED WARRANTIES SO THE ABOVE EXCLUSION MAY NOT APPLY TO CUSTOMER IF PERMITTED BY APPLICABLE LAW SUCH WARRANTIES ARE LIMITED IN DURATION TO THE WARRANTY PERIOD SPECIFIED FOR THE SUBJECT CA SOFTWARE NO WARRANTIES OF ANY KIND APPLY AFTER THAT PERIOD SOME STATES OR JURISDICTIONS DO NOT ALLOW SUCH
10. technologies Specific Program Document License SPD 1 CA Europe s a r l CA licenses to Customer the CA software program s listed below under the following terms and conditions By using the CA Software Customer confirms that Customer has read and agreed to these terms Customer means the legal entity being granted the license to the CA Software under this License SPD also referred to as Client Customer or Licensee CA Software means the program s licensed under this License SPD and any fixes patches updates upgrades or other software provided to Customer as part of Maintenance Maintenance means the maintenance and support services provided to Customer by the entity from which Customer has purchased the CA Software 2 Program Name CA Wily Customer Experience Manager 3 CA Wily CEM 4 Specified Operating Environment The CA Software s specifications and specified operating environment information may be found in the Documentation accompanying the CA Software if available e g a user manual user guide or readme txt or notice txt file Documentation means a with respect to CA Software only standard specifications user documentation and technical manuals and guides provided with the CA Software some or all of which may be in English only and b with respect to Maintenance and warranty support CA s external policies covering the scope and nature of Maintenance and warr
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