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U.S. End User Licensing Agreement (EULA)
IMPORTANT—DO NOT INSTALL OR USE THE SOFTWARE THAT ACCOMPANIES THIS LICENSE UNTIL YOU HAVE READ AND ACCEPTED ALL OF THE LICENSE TERMS BELOW.
PERMISSION TO INSTALL AND USE THE SOFTWARE IS CONDITIONAL UPON THE PURCHASER OF THE LICENSE FOR THE SOFTWARE (THE “END USER”) AGREEING TO THESE LICENSE TERMS. INSTALLATION OR USE OF THE SOFTWARE BY THE END USER WILL BE DEEMED TO BE ACCEPTANCE OF THESE LICENSE TERMS. YOU REPRESENT AND WARRANT TO QLIKTECH INC. (“QLIKTECH”) THAT YOU ARE AUTHORIZED TO ENTER INTO THIS AGREEMENT AND ACCEPT THESE TERMS ON BEHALF OF THE END USER. ACCEPTANCE WILL BIND THE END USER TO THESE LICENSE TERMS IN A LEGALLY ENFORCEABLE CONTRACT WITH QLIKTECH. IF THE END USER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT (WHICH INCLUDE THE LICENSE AND WARRANTY PROVISIONS SET FORTH BELOW), OR YOU DO NOT HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE END USER, PRESS THE “NO” BUTTON TO EXIT THIS INSTALLATION PROCEDURE.
NOTE: THE INSTALLATION OF THIS SOFTWARE WILL INSTALL FILES NECESSARY TO OPERATE THE SOFTWARE ONTO THE END USER’S COMPUTER. OTHER SYSTEM FILES, SUCH AS DYNAMIC LINK LIBRARY (.DLLS) FILES, MAY BE INSTALLED OR UPDATED AND WINDOWS REGISTRY ENTRIES WILL BE MADE. UNINSTALLING THE PROGRAM WILL NOT REMOVE ALL OF THE INSTALLED FILES OR REGISTRY ENTRIES. AS WITH ALL INSTALLATIONS, IT IS RECOMMENDED THAT THE END USER BACK UP ITS HARD DRIVE BEFORE INSTALLING THIS PROGRAM.
Grant of License for Authorized Users
Subject to the terms and conditions of this Software End User License Agreement (the “EULA”) and the payment of all applicable license fees, QlikTech grants to the End User a limited, non-exclusive and non-transferable license to install and use, for internal purposes only, the software programs with which this license is distributed (the “Software”), including any printed documentation or documentation files published by QlikTech and accompanying the Software (the “Documentation”), on a single server (if the Software is server based) which may be accessed only by the number of users licensed by QlikTech, or a single personal computer (if the Software is PC based) (the “License”).
The End User may also store or install one (1) backup copy of the Software for archival and disaster recovery purposes. One (1) License for the Software may not be shared for use on different computers or servers. If a serial number, password, license key or other security device is provided to the End User for use with the Software, the End User may not share or transfer such security device with or to any other user of the Software or any other third party. Any other use of the Software by any third party, except as provided in this EULA, is strictly forbidden and is a breach of this EULA.
If the Software is licensed to the End User by one of QlikTech’s authorized OEM partners or its authorized representatives for use in connection with such OEM partner’s proprietary host software applications or services (i.e. a limited “Powered by QlikView” license), then the End User’s permitted use of the Software will be restricted to such host application or service and its data structures, and the End User may not use the Software apart therefrom on a stand-alone basis or in connection with other software applications or services.
Any maintenance of the Software (i.e. technical support and updates), will be provided in accordance with a separate written maintenance agreement entered into between the End User and either QlikTech or one of QlikTech’s authorized resellers or other representatives authorized by QlikTech to provide maintenance services for the Software.
During the term of this EULA and for a period of one year thereafter, QlikTech may, at any time during the End User’s normal business hours and upon reasonable advance notice, conduct an audit at the End User’s premises to ascertain whether the End User’s use of the Software is in compliance with the provisions of this EULA. The End User shall reasonably assist QlikTech in the conduct of such audit and shall grant QlikTech reasonable access to the End User’s premises and computer equipment for that purpose. In the event that such audit reveals any use of the Software by the End User other than in material compliance with this EULA and/or any other agreement between QlikTech and the End User, the End User shall reimburse QlikTech for all reasonable costs and expenses related to such audit in addition to any additional license fees and maintenance fees owed to QlikTech as a result of such non-compliance.
If for any reason End User is not completely satisfied with any Software licensed hereunder, End User may request a refund of any license fees and Maintenance fees paid in respect of that particular Software, by notifying QlikTech’s President in writing within thirty (30) days from the Delivery Date, which notice must provide the following: (a) End User name and contact information; (b) Delivery Date; and (c) the reason for the request for a refund. No refund under this 30-day money back guarantee is available after thirty (30) days from the Delivery Date of the relevant Software. No refund is available under this clause for consulting services, such as installation, training or application development services. Upon payment of any refund, End User acknowledges and agrees that the license for that Software will be deemed to have automatically terminated, and End User must return such Software to QlikTech or establish to QlikTech’s satisfaction that it has destroyed or de-installed such Software. Following refund, any further use of such Software will be unauthorized and will constitute a material breach of this EULA and an infringement of QlikTech’s intellectual property rights. For purposes of this EULA, the term “Delivery Date” means: (a) if the End User purchases the license for the Software directly from QlikTech, the date the Software is made available for download by End User from QlikTech’s website and QlikTech delivers to End User the license keys therefor; or (b) if the End User purchases the license for the Software through one of QlikTech’s authorized resellers, the date the Software is made available for download from QlikTech’s website and QlikTech delivers the license keys therefor to the reseller.
The End User has no ownership rights in the Software. The Software, Documentation and the intellectual property rights associated therewith are and will remain at all times the sole and exclusive property of QlikTech and its affiliates and the End User has no right, title or interest in or to the Software, Documentation or the intellectual property associated therewith, except as expressly set forth in this EULA. This EULA does not grant the End User any rights in the trade marks or service marks of QlikTech, all of which remain the exclusive property of QlikTech and its affiliates. The End User may not alter or remove trade marks, service marks or other markings from the Software, Documentation or their associated packaging. Upon QlikTech’s request, the End User agrees, at QlikTech’s expense, to take such actions as QlikTech may reasonably request to perfect QlikTech’s ownership in the Software.
The Software and Documentation contain material that is protected by copyright laws and international treaty provisions. Accordingly, the End User may not make copies of the same, except that the End User may (a) make a copy of the Software as permitted above solely for archival or disaster recovery purposes, and (b) transfer the Software from digital media to hard disks provided that the Software is used only as specified in this EULA. The End User may not copy the Documentation. Also, the End User shall maintain at all times all copyright notices provided on the Software, Documentation and associated packaging and any copies thereof. The End User shall ensure that any permitted copy of the Software is produced only for the End User’s own benefit, that it is clearly marked on the copy that such copy is subject to copyright and confidentiality, and that a written list is maintained of the number of copies and place of storage. Copies of the Software constitute QlikTech’s property. All the terms and conditions of this EULA shall also apply to such copies.
Other Restrictions and Assignment
This EULA grants the End User the right to use the Software for internal purposes only. The End User may not use the Software to operate a subscription service, service bureau, Software as a Service (SaaS) model, or other similar access fee-based services for the benefit of any third party without the prior express written consent of QlikTech. The End User must protect the Software and Documentation in a manner consistent with QlikTech’s rights expressed in this EULA. The End User may not sublicense, modify, distribute, or create derivative works based on the Software or any part thereof. The End User may not reverse engineer, decompile, disassemble, translate, or adapt the Software, nor shall the End User attempt to create the source code from the object code of the Software.
The End User acknowledges and agrees that the intellectual property associated with the Software and the Documentation, and any other nonpublic information of a technical or commercial nature concerning QlikTech, the Software and the Documentation disclosed to the End User in connection with this EULA constitute QlikTech's proprietary information and trade secrets, and the End User agrees to hold such information in strict confidence.
The End User shall have no right to transfer or assign the License or the End User’s rights or obligations under this EULA in whole or in part, and any attempted transfer or assignment shall be null and void. The foregoing notwithstanding, upon prior written approval by QlikTech, the End User may assign, or otherwise transfer this EULA to any affiliate. For purposes of this EULA, the term “affiliate” means any entity which controls, is controlled by, or is under common control with the End User, where “control” means the legal, beneficial or equitable ownership of at least a majority of the aggregate of all voting equity interests in such entity.
Infringement of Third Party Intellectual Property Rights
QlikTech shall pay those costs and direct damages finally awarded against the End User in connection with any claim by a third party that the Software directly infringes any U.S. copyright or misappropriates any trade secret recognized as such under the Uniform Trade Secret law (or those costs and damages agreed to by QlikTech in a written monetary settlement) and the reasonable costs of defense incurred by the End User in connection therewith, including reasonable attorneys’ fees and court costs, provided that:
(a) the End User provides QlikTech with prompt written notice of any such action or claim;
(b) the End User will permit QlikTech to assume and control the defense and settlement of any such action or claim, at QlikTech’s expense;
(c) the End User will not prejudice the defense of the action or claim nor will the End User make any admission as to liability nor compromise or agree to any settlement of any such action or claim without the prior written consent of QlikTech; and
(d) the End User will provide QlikTech with such assistance, documents, authority and information as QlikTech may reasonably require in relation to the action or claim and defense or settlement thereof.
Notwithstanding the foregoing, QlikTech shall have no liability to the End User for any claim that:
(a) arises out of any unauthorized use, reproduction, or distribution of the Software;
(b) arises out of any modification or alteration of the Software by anyone other than QlikTech;
(c) arises out of the use of the Software in combination with any other software or equipment not approved in writing by QlikTech; or
(d) would have been avoided by use of the then-current Release of the Software or if the End User had followed QlikTech’s reasonable written instructions.
In addition, if the Software becomes, or in QlikTech’s opinion is likely to become, the subject of an infringement or misappropriation claim, QlikTech may, at its own expense and option, elect to either:
(a) procure the right for the End User to continue using the Software in accordance with the provisions of this EULA;
(b) make such alterations, modifications or adjustments to the Software so that the infringing Software or Documentation becomes non-infringing without incurring a material diminution in performance or function;
(c) replace the Software with a non-infringing substantially similar substitute; or
(d) if neither (a), (b) nor (c) can be achieved after the exercise of commercially reasonable efforts, terminate this License and refund to the End User: (i) all amounts paid by the End User to QlikTech as license fees with respect to the affected Software, less an amount equal to depreciation of such license fees calculated on a three-year straight-line basis from the date of license, and (ii) a pro rata portion of any prepaid maintenance fees for the then-current annual maintenance period.
If QlikTech modifies or replaces the Software, the End User shall have the same rights in respect thereof as it would have had under this EULA.
THIS SECTION STATES QLIKTECH’S ENTIRE LIABILITY, AND THE END USER’S SOLE REMEDIES, FOR ANY INFRINGEMENT OR ALLEGED INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS IN RELATION TO THE SOFTWARE AND THE DOCUMENTATION.
This warranty extends only to the original End User of this License, and no third party shall have the right to make any claim or assert any right hereunder.
QlikTech warrants that for a period of one hundred twenty (120) days from the Delivery Date (the “Warranty Period”): (a) the Software will perform substantially in accordance with the Documentation; and (b) the Software is properly recorded on the media or in the files to be downloaded. There is no warranty after expiration of the Warranty Period. This warranty is void if failure of the Software has resulted from accident, abuse, or misapplication or from the End User having modified the Software or used it for a purpose or in a context other than the purpose or context for which it was designed.
End User must report any alleged breach of the warranties contained in this Section to QlikTech in writing during the Warranty Period. End User’s exclusive remedy and QlikTech’s sole liability with regard to a breach of warranty shall be as follows: (A) with respect to any alleged breach of the warranty set forth in clause (a) above (performance), at QlikTech's option and expense, to either: (i) repair or replace the non-conforming Software; or (ii) return the license and maintenance fees paid to QlikTech (if any) with respect to the non-conforming Software; and (B) with respect to any alleged breach of the warranty set forth in clause (b) above (media), to replace the defective media.
If QlikTech elects to return the applicable license and maintenance fees paid for the non-conforming Software pursuant to clause (A)(ii) above: (1) End User shall promptly return the non-conforming Software to QlikTech or establish to QlikTech’s satisfaction that it has destroyed/uninstalled the applicable Software; and (2) the licenses granted to End User hereunder in respect of such non-conforming Software shall automatically terminate. If QlikTech elects to repair or replace the non-conforming Software pursuant to clause (A)(i), any repaired or replacement Software will be warranted for the remainder of the original Warranty Period or thirty (30) days from repair or replacement, whichever is longer.
QlikTech does not warrant that: (I) the Software will meet End User’s requirements; (II) the Software will operate in combination with other hardware or software, except as expressly specified in the Documentation; or (III) operation of the Software will be uninterrupted or error free.
EXCEPT FOR THE LIMITED WARRANTY PROVIDED ABOVE, THE SOFTWARE AND THE DOCUMENTATION ARE PROVIDED “AS IS”. ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT ARE HEREBY DISCLAIMED.
Limitation of Liability
IN NO EVENT SHALL QLIKTECH BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES OR LOSSES OF ANY KIND ARISING UNDER ANY THEORY OF LIABILITY (INCLUDING TORT), INCLUDING WITHOUT LIMITATION DAMAGES OR LOSSES FOR LOSS OF PROFITS, LOSS OF PRODUCTION OR EXPECTED SAVINGS, BUSINESS INTERRUPTION, LOSS OR CORRUPTION OF BUSINESS DATA OR INFORMATION, OR OTHER PECUNIARY LOSS, EVEN IF QLIKTECH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
EXCEPT FOR QLIKTECH’S INDEMNIFICATION OBLIGATIONS HEREUNDER AS REGARDS INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS, QLIKTECH’S MAXIMUM AGGREGATE LIABILITY UNDER THIS EULA (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL BE LIMITED TO DIRECT DAMAGES NOT TO EXCEED THE AMOUNT OF LICENSE FEES PAID BY THE END USER TO QLIKTECH FOR THE LICENSE TO WHICH A SPECIFIC CLAIM RELATES.
THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET FORTH IN THIS EULA SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
This EULA is effective until terminated. The End User may terminate this EULA for convenience at any time by uninstalling, destroying or returning to QlikTech all copies of the Software and Documentation in the End User’s possession or within its control; provided, however, that no such termination shall entitle End User to a refund of any license fees or prepaid maintenance fees paid in respect of the applicable Software. QlikTech may terminate this EULA immediately at any time by written notice to the End User if the End User has breached any of the terms of this EULA. Upon termination, the License(s) shall terminate and the End User agrees to promptly uninstall, destroy or return to QlikTech all copies of the Software and Documentation and to certify in writing that all known copies, including backup copies, have been uninstalled, destroyed or returned to QlikTech. All provisions relating to confidentiality, QlikTech’s ownership and proprietary rights, limitations of liability, disclaimers of warranties, waiver, governing law and arbitration shall survive the termination of this EULA.
End User agrees to comply fully with all relevant export laws and regulations, including but not limited to the U.S. Export Administration Regulations and regulations promulgated by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), as amended from time to time (collectively, the “Export Control Laws”). End User agrees not to export or reexport the Software to any parties located in Iran, Cuba, North Korea, Syria, Sudan or any other countries prohibited under U.S. embargoes or sanctions programs maintained by the OFAC or otherwise prohibited under the Export Control Laws.
This EULA may only be modified by a written document that has been signed by both the End User and QlikTech. If any provision of this EULA is held to be unenforceable, the parties shall substitute for the affected provision an enforceable provision which approximates the intent and economic effect of the affected provision. The failure by a party to exercise any right hereunder shall not operate as a waiver of such party’s right to exercise such right or any other right in the future.
This EULA constitutes the entire agreement between the parties with respect to the subject matter contained herein, and supersedes all previous agreements, representations, warranties, statements, negotiations, understandings and undertakings, whether verbal or written, pertaining to such subject matter. The End User hereby represents and acknowledges that in entering into this EULA, it did not rely on any representations or warranties other than those expressly set forth in this EULA.
This EULA is governed by and construed in accordance with the laws of the State of Delaware (excluding the U.N. Convention on Contracts for the International Sale of Goods) and any dispute, controversy or claim arising out of or in connection with this EULA, or the breach, termination or invalidity thereof, shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The place of arbitration shall be Philadelphia, Pennsylvania, U.S.A. The language to be used in the arbitral proceedings shall, unless otherwise agreed, be English.
The End User agrees that, if the Uniform Computer Information Transaction Act, any version thereof or a substantially similar law (collectively “UCITA”) is or has been enacted so as to be applicable to a party’s performance under this EULA, said statute shall not govern any aspect of this EULA, any license granted hereunder, nor any of the parties’ rights and obligations arising hereunder. The applicable law shall be the law as it existed prior to the enactment of UCITA.
All notices or other communications to QlikTech shall be addressed to: QlikTech Inc., 150 N. Radnor-Chester Road, Suite E 220, Radnor, PA 19087, U.S.A.