End User License Agreement

GENERAL. The programs, documentation, libraries and run-time source code (collectively the "Software") are licensed, not sold, under the terms of this License. The Software is furnished under worldwide floating license agreement. This product may only be used by the maximum number of users specified by the license, at one time. A user is identified by a login account on a particular computer system. A single user is allowed to run any number of licensed executables simultaneously. Each host operating system is licensed separately. The Unlimited License may be used by any number of users on any supported platform. Executable images built with BullseyeCoverage and the BullseyeCoverage run-time library may be used by any number of users at a time. The purchaser may make one backup copy of the Software for safekeeping. Do not reproduce any part of this publication, by any means, without the consent of Bullseye Testing Technology. By using the Software, you accept the terms of this agreement.

USERS: Users are employees, contractual workers or third parties working for or with the Licensee or the Licensees affiliates, divisions or subsidiaries which have been authorized by the Licensee to use the Software. A continuous integration system counts as one user.

TERM. Your license is perpetual and non-revocable.

TRANSFERABILITY. Your license is fully transferable.

WARRANTY. Bullseye Testing Technology provides the Software as-is, with no warranties as to the merchantability or fitness for any particular purpose. Bullseye Testing Technology disclaims all other representations, warranties and conditions, either express or implied, outside this agreement.

Notwithstanding the foregoing, Bullseye Testing Technology warrants that, for a period of ninety (90) days from delivery, the Software will perform substantially in accordance with its documentation. As Licensee's exclusive remedy for breach of this warranty, Bullseye Testing Technology shall, at no charge, use commercially reasonable efforts to repair or replace the non-conforming Software, and if it is unable to do so within a reasonable time, shall refund the fees paid by Licensee for the Software.

ANTI-VIRUS WARRANTY. Bullseye Testing Technology represents and warrants that the Software does not contain any code, programming instruction or set of instructions that is intentionally constructed with the ability to damage, interfere with or otherwise adversely affect computer programs, data files, or hardware without the consent and intent of the computer user and the Software does not contain any virus or computer code designed to disable, damage, impair, or erase the Software or other software or data.

LIMITATION OF LIABILITY. Neither you nor Bullseye Testing Technology shall be liable for any special, incidental, indirect, punitive or consequential damages of any kind, or any damages however caused and on any theory of liability (whether in contract, tort, strict liability or otherwise), to the extent permitted by applicable law. The only type of damages that can be recovered against either party arising from or related to this agreement including without limitation in relation to the provision, use, performance or non-performance of the Software or any portion thereof, shall be the parties' direct damages. In no event shall the aggregate liability of either party exceed the amount paid by you for the product that gave rise to the claim, and Bullseye Testing Technology shall only be liable for damages incurred during the period of the failure.

Notwithstanding the foregoing, the limitations and exclusions of liability set forth in this section shall not apply to: (i) Bullseye Testing Technology's indemnification obligations under the Intellectual Property Indemnity section; (ii) damages arising from a party's breach of its confidentiality obligations; (iii) a breach of the Anti-Virus Warranty; or (iv) damages arising from a party's gross negligence, willful misconduct, or fraud.

INTELLECTUAL PROPERTY INDEMNITY

Bullseye Testing Technology shall indemnify, defend and hold Licensee harmless from any claim by a third party that the Software infringes any patent, trade secret, copyright or other intellectual property right of that third party, provided: (i) Bullseye Testing Technology is promptly notified of the claim; (ii) Bullseye Testing Technology receives reasonable cooperation from Licensee in protecting its rights related thereto; and (iii) Bullseye Testing Technology has the opportunity to assume sole control over the defense and all negotiations for a settlement or compromise. Provided that Bullseye Testing Technology complies with its obligations herein, Bullseye Testing Technology will not be responsible for any settlement it does not approve in writing. The foregoing obligation of Bullseye Testing Technology does not apply with respect to Software or portions or components thereof: (i) not supplied by Bullseye Testing Technology; (ii) used in a manner not expressly authorized by this Agreement if the alleged infringement relates to such use (iii) made in whole or in part in accordance with Licensee's specifications; (iv) modified by Licensee, if the alleged infringement relates to such modification; (v) combined with other products (hardware or software), processes or materials not approved by Bullseye Testing Technology where the alleged infringement would not exist but for such combination; or (vi) where Licensee continues the allegedly infringing activity after being notified thereof and provided with modifications that would have avoided the alleged infringement.
In the event the Software is held by a court of competent jurisdiction to constitute an infringement and use of the Software is enjoined or in order to settle any infringement claim, Bullseye Testing Technology shall, at its sole option, either: (i) procure for Licensee the right to continue use of the Software; (ii) provide a modification to the Software so that its use becomes non-infringing; or (iii) replace the Software with software which is substantially similar in functionality and performance. If none of the foregoing alternatives is reasonably available to Bullseye Testing Technology, Bullseye Testing Technology shall refund the residual value of the License fees paid by Licensee for the infringing Software, depreciated using a straight line method of depreciation over a seven (7) year period from the date of delivery of the Software to Licensee. This section states Bullseye Testing Technology's sole liability and Licensee's exclusive remedy for infringement claims.

SOURCE CODE LICENSE GRANT. Bullseye Testing Technology licenses to Licensee the worldwide, nonexclusive, nontransferable, and perpetual right, but not the obligation, to use, copy and modify the distributed run-time source code to enable the Software to support running on additional platforms, and to compile the run-time source code into object code for such purpose. Bullseye Testing Technology retains ownership of the Software including all intellectual property rights therein. Licensee owns all right, title and interest, including all intellectual property rights therein, in and to those modifications made by Licensee, subject to Bullseye Testing Technology's ownership of the unmodified run-time source Code.

CONFIDENTIALITY. You agree to maintain the Software in strict confidence and not to disclose or provide access thereto to any person except to your employees with a need for access to exercise the license rights conferred hereby.

ENTIRE AGREEMENT. This agreement is the entire agreement for the Software and support services.