SAS Talon Master Subscription and Services Terms

  1. Software License. SAS grants Customer a nonexclusive, nonassignable and nontransferable license to use the Software listed in the SAS Talon Subscription and Services Order Agreement (“Order Agreement”) and any related on-line documentation made available by SAS with the Software [“Documentation”) for the Committed Subscription period set forth in the Order Agreement. Customer may use the Documentation solely in support of its licensed usage of the Software. Except to the extent allowed by law, Customer may not use the Software or Documentation or allow any other person or entity to use the Software or Documentation (a) for the purpose of bringing an intellectual property infringement claim against SAS; (b) in a service provider or time-sharing arrangement; (c) for the purpose of creating a commercial offering or product competing with an offering or product from SAS or (d) for the benefit of any person or entity whose use may result in the creation of a commercial offering or product competing with an offering or product from SAS.
  2. Work Product License. SAS grants Customer a nonexclusive, nontransferable, non-assignable, royalty-free license to use the any documentation or computer code delivered by SAS in connection with Services performed with respect to the Software (collectively, “Work Product”) for as long as Customer maintains a license to the Software. Ownership of the Work Product, including any intellectual property embodied therein, and any techniques, skills, concepts or know-how that are utilized or developed while performing the Services remains with SAS.
  3. Defined Terms; Precedence. All initially capitalized terms not defined herein will be as defined in the Order Agreement. In the event of a conflict between these Master Terms and the Order Agreement, the Order Agreement will prevail.
  4. Title; Source Code. Title to the Software and Documentation and any Work Product remain with SAS and its licensors at all times. Source code from which the Software object code is derived (“Source Code”) is not being provided and is a trade secret of SAS and SAS’ licensors to which access is not authorized. Neither Customer nor any other User may reverse engineer, reverse assemble or decompile the Software or in any way attempt to recreate the Source Code, except and only to the extent applicable laws specifically prohibit such restriction.
  5. Copying. Customer may copy the Software only for disaster recovery and back-up purposes. All copies remain the property of SAS. The identical copyright notices and any other proprietary rights notices found on the original Software media must be reproduced on all copies of the Software.
  6. Product Authorization Code. The “Product Authorization Code” is a component of the Software that enables the Software to operate for the applicable subscription period. At each new subscription period, Customer must apply a new Product Authorization Code to enable the Software to operate. SAS is not required to provide the Product Authorization Code if Customer is in breach of the Agreement and SAS is not responsible for any resulting Software interruption. Customer may allow only Users to access the Product Authorization Code. The Product Authorization Code is SAS’ confidential and proprietary information.
  7. Technical Support. SAS will use reasonable efforts, either by telephone or electronically, to help Customer solve specific problems with installation or use of the Software as described at, which may be updated from time to time. It may not be possible for SAS to solve all problems or correct all errors in the Software. Customer agrees to use reasonable efforts to install new releases, updates and corrective code that SAS makes available. During ongoing Software development, SAS may add, change or delete individual components or functionality in new releases. If Customer chooses not to install the most current release of the Software, the level of technical support may diminish over time. SAS’ obligations in this section are subject to the following: Customer shall: (a) when requesting technical support, notify SAS of any modifications to the Software not made by SAS, or at the direction of SAS; and (b) establish technical contacts with knowledge about the Software and Customer’s use of the Software who will be qualified to provide SAS with information necessary for SAS to diagnose and remedy any problems with the Software. Failure to comply with these terms may result in longer response and resolution times.
  8. Customer Obligations. Customer will (a) ensure that all data and software used with the Software is adequately duplicated, documented, and protected; (b) inform all parties authorized to use the Software of the relevant terms of this Agreement and be responsible for their adherence to such terms (c) keep records of where the Software is installed and used and the extent of usage of the Software relative to the applicable pricing metrics and usage rights and provide a copy of such records to SAS upon request and (d) notify SAS of changes to operating systems or any factor affecting the applicable pricing metric or any applicable usage rights.
  9. Warranties and Disclaimers. SAS warrants it has the right to license the Software and Documentation and Work Product. Customer’s exclusive remedy for SAS’ breach of this warranty is set forth in the Indemnification section. SAS warrants that each commercially available release of the Software will substantially conform to its Documentation. As Customer’s exclusive remedy for breach of this warranty, SAS, at its option, will: (a) repair the Software; (b) replace the Software; or (c) terminate the Software license and refund the fees paid for the Software at issue during the then-current annual subscription period. SAS warrants that the Services will be performed by skilled personnel. As Customer’s exclusive remedy for breach of this warranty, SAS will refund to Customer the fees for the Services at issue. SAS AND ITS THIRD PARTY LICENSORS DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ARISING AS A RESULT OF CUSTOM OR USAGE IN THE TRADE OR BY COURSE OF DEALING. SAS DOES NOT WARRANT OR REPRESENT THAT CUSTOMER’S USE OF THE SOFTWARE OR SERVICES WILL RESULT IN CUSTOMER’S COMPLIANCE, FULFILLMENT OR CONFORMITY WITH THE LAWS, RULES, REGULATIONS, REQUIREMENTS OR GUIDELINES OF ANY GOVERNMENTAL AGENCY.
  10. Exclusions of Damages; Limitation of Liability. SAS and its licensors are not liable for (i) special, incidental, indirect, consequential, punitive, or reliance damages (arising in contract, tort or otherwise), or (ii) any claim against Customer by a third party, even if SAS or its licensors have been informed of the possibility of such damages. SAS’ licensors are not liable for any direct damages. THE TOTAL AMOUNT CUSTOMER MAY RECOVER FOR ALL CLAIMS RELATING TO THE AGREEMENT IS LIMITED IN THE AGGREGATE TO THE SUSCRIPTION FEES CUSTOMER HAS PAID FOR THE SOFTWARE AT ISSUE DURING THE APPLICABLE ANNUAL SUBSCRIPTION PERIOD OR FOR THE SERVICES FEES AT ISSUE. This section does not apply to the Indemnification section or to either party’s violation of the other’s intellectual property rights. The limitations in this section will apply even if any of the remedies provided in the Warranties and Disclaimers section fail of their essential purpose. Some jurisdictions do not allow limitations of liability or exclusions for incidental or consequential damages so certain provisions of this section may not apply to Customer; but do apply to the greatest extent permitted by applicable law.
  11. Indemnification. Provided Customer uses the Software and Work Product in accordance with the terms and conditions of this Agreement and complies with this section, SAS will defend and indemnify Customer with respect to any claim made against Customer for copyright, patent, trade secret or other intellectual property rights violation relating to the Software or Work Product or (b) bodily injury, death or damage to tangible property, excluding loss of or damage to software or data, arising solely from actions for which SAS is legally responsible. Customer agrees to promptly notify SAS in writing of any such claim, to allow SAS to control the litigation or settlement of any such claim and to cooperate with SAS in its investigation, defense and settlement. SAS will indemnify Customer by paying for the costs and attorneys’ fees Customer incurs at SAS’ direction and any judgment finally awarded against Customer or settlement approved by SAS. Customer may participate at Customer's own expense. If such claim in (a) above is made or, in SAS' opinion, is likely to be made, then SAS, at its option, may: (i) modify the Software or Work Product; (ii) obtain rights for Customer to continue using the Software or Work Product; or (iii) terminate Customer’s license to use the Software or Work Product and refund any subscription fees paid by Customer for the Software during the then-current annual subscription period or for the Work Product at issue. Customer agrees to abide by SAS' decision and, if appropriate, use a different version of the Software or Work Product or stop using the Software or Work Product. This indemnification obligation does not apply to the extent: (1) a claim is based on Customer’s combination of the Software or Work Product with other software or materials or Customer’s modification to the Software or Work Product; or (2) as of the date the claim arose, Customer had not installed and/or begun using the latest version of, or update to, the Software as instructed by SAS prior to such date; or (3) a claim is based on Customer’s unique specifications for the Work Product.
  12. Confidential Information. Each party acknowledges that it may have access to certain confidential information of the other party concerning the other party's business, plans, customers, technology, products, know-how and other information held in confidence by the other party (individually or collectively, "Confidential Information"). In no event will Customer provide to SAS any personally-identifiable information or source code by any electronic media or means, including via email and/or over the Internet, unless and until such transmission is approved in writing by SAS’ Privacy Officer. SAS will not be liable for any damages arising out of the disclosure of personally identifiable data that is transmitted by Customer to SAS in violation of this requirement. The receiving party (“Recipient”) will only use the disclosing party’s (“Discloser”) Confidential Information received in connection with the Agreement. Recipient will not disclose Discloser’s Confidential Information to any third parties unless Discloser gives Recipient its advance written authorization to do so. Recipient’s obligations of confidentiality hereunder will continue for a period of five (5) years from the date of initial disclosure.
  13. Customer Materials. “Customer Materials” means any materials that Customer provides to SAS or directs SAS to obtain. Customer Materials are not Work Product. Customer or its licensor will maintain ownership of the Customer Materials, but grants SAS a nonexclusive, nontransferable, royalty-free right to use the Customer Materials. Customer warrants that: (a) it has the right to grant to SAS the right to use the Customer Materials; and (b) Customer’s use of the Customer Materials complies with all applicable license terms, terms of use and other usage terms as set forth by the providers of such materials. The exclusive remedy for breach of these warranties is for Customer to indemnify SAS for any claim made against SAS arising from or relating to the Customer Materials.
  14. Termination; Expiration. SAS or Customer may terminate this Agreement for a breach of this Agreement if not cured within fifteen (15) days of receipt of the non-breaching party’s written notice. SAS may terminate the Agreement immediately for any violation by Customer of SAS’ intellectual property rights. Obligations in this Agreement that by their nature are continuing will survive termination or expiration. Upon termination or non-renewal of the subscription, Customer agrees to delete and destroy the Software, along with any related Documentation.
  15. General.
    • 15.1 Subcontracting. SAS may subcontract all or part of the Services. SAS will remain responsible for the performance of the Services by each such subcontractor to the same extent as if SAS were performing such Services. SAS and its employees or subcontractors are acting as employees or agents of an independent contractor and not as employees or agents of Customer.
    • 15.2 Severability. If a court of competent jurisdiction finds any part of this Agreement unenforceable, that part will be excluded, but the remainder of this Agreement will remain in full force and effect.
    • 15.3 No Waiver. Failure to require compliance with a part of this Agreement is not a waiver of that part. Nothing in this Agreement waives any remedy SAS may have under this Agreement at law, in equity, or otherwise.
    • 15.4 Non-assignment. Customer may not assign this Agreement or any of its rights or obligations hereunder without SAS’ written permission. Any purported assignment in violation of this subsection is void and constitutes a material breach of this Agreement.
    • 15.5 Audit. Upon fifteen (15) business days’ notice to Customer, SAS will have the right to conduct an on-site audit during Customer’s normal business hours to verify compliance with the terms and conditions of this Agreement. If the audit reveals that Customer owes additional subscription fees, Customer will pay the amounts owed and SAS’ reasonable expenses in conducting the audit.
    • 15.6 Injunctive Relief. Breach of SAS' or SAS’ licensors’ intellectual property rights will lead to damages not adequately remedied by an award of money; therefore, SAS may protect those intellectual property rights through temporary restraining orders or injunctions, without the obligation of posting bond.

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