Emerald User License Agreement (EULA)

TERMS & CONDITIONS For LICENSED EMERALD SOFTWARE

EMERALD ASSOCIATES INCORPORATED. (hereinafter EMERALD) and the LICENSEE, agree as follows:

1. Definitions

LICENSEE - refers to the individual or entity that has executed these General Terms.
SOFTWARE - refers to:
1. The computer program(s) owned or distributed by EMERALD that Licensee has ordered,
2. Program Documentation, and
3. Any program updates acquired through technical support.
AUTHORIZED END-USER - shall mean any person who has access to the SOFTWARE and is employed by or a contractor for, LICENSEE.
SUBSCRIPTION TERM – shall mean that EMERALD grants LICENSEE a non-exclusive, non-transferable right for multiple individual(s) to use the SOFTWARE for the extent of the terms of the agreement:
- Standalone - 12 months minimum
- Standard – 24 months minimum
- Professional – 24 months minimum
- Corporate – 24 months minimum

Applies to: P6-Loader, P6-QA, P6-Calculator, P6-Visio Loader, OPC-Integrator

NAMED USER LICENSE – shall mean EMERALD grants LICENSEE a non-exclusive, non-transferable right for only the designated named individual(s) to use the SOFTWARE which is installed on a single server or on multiple servers, regardless of whether the individual is actively using the programs at any given time. The sharing of this license between individuals is not permitted.

Applies to: TAPS, CAPPS, Emerald BI-GanttView

SERVER LICENSE – shall mean that EMERALD grants LICENSEE a non-exclusive, non-transferable right for multiple individual(s) to use the SOFTWARE installed on a particular server, and that the number of servers that the SOFTWARE is installed on may not exceed the number of servers licensed. In the case of a virtual machine environment, one virtual machine shall be considered a server.

Applies to: PCM-Unifier Migrator, Emerald Cloud API

DATABASE LICENSE – shall mean that EMERALD grants LICENSEE a non-exclusive, non-transferable right for multiple individual(s) to use the SOFTWARE to access a particular Database Schema (in the case of Oracle DBMS) or Database (in the case of Microsoft SQL Server DBMS). In the case of Oracle Primavera Contract Management, a DATABASE LICENSE can be linked to one PCM “Group”.

Applies to: PCM-Loader, PCM-Archiver, PCM-Add-ons, P6-Timesheet-Optimizer, P6-Auditor, EP-datawarehouse/P6-Reporter, Unifier-Archiver

PROJECT LICENSE - shall mean that EMERALD grants LICENSEE a non-exclusive, non-transferable right for multiple individual(s) to use the SOFTWARE on a number of allotted PROJECT XER or PROJECT XML files within Primavera P6.

Applies to: P6-Scrubber

2. Grants

Subject to the provisions contained herein, EMERALD grants to LICENSEE a non-exclusive license for the use of the SOFTWARE by LICENSEE for the SUBSCRIPTION TERM, as specified in the applicable Order.
Method of shipment of SOFTWARE to LICENSEE is electronic (e.g., website provided for download purposes). Other methods requested are at the discretion of EMERALD and may be subject to additional costs.
If LICENSEE orders additional licenses of SOFTWARE from EMERALD, these licenses shall be considered to be included in the definition of SOFTWARE and are thereby subject to all provisions of this License Agreement.
EMERALD retains all title, ownership, intellectual property rights, and copyrights to the SOFTWARE, including the media upon which the SOFTWARE is provided under this Agreement. The SOFTWARE is licensed, not sold, to LICENSEE.

3. Maintenance

For so long as this License Agreement is in effect, and LICENSEE is not in default, EMERALD shall provide SOFTWARE maintenance beginning the date LICENSEE executes this agreement, and provided the LICENSEE payment of prescribed fees is up-to-date.
Maintenance includes enhancements, upgrades and improvements to the SOFTWARE, when and if developed, and reasonable efforts to correct errors or deficiencies in the SOFTWARE. Maintenance further includes reasonable technical assistance via the internet or telephone to LICENSEE’S designated support representative. LICENSEE agrees that the determination of the extent of technical support required shall rest exclusively with EMERALD. EMERALD is not required to correct every error or problem LICENSEE may have with the SOFTWARE.
EMERALD agrees to provide maintenance for the latest release of SOFTWARE version only. It is the LICENSEE’S responsibility to keep up on the most recent SOFTWARE release. SOFTWARE patches and upgrades will not be provided if LICENSEE is in default or the subscription term has ended. Any provision of maintenance under such circumstances does not constitute an obligation on EMERALD’S part to do so in the future, nor discharge LICENSEE from any obligations to make payments.
LICENSEE is required to accept all patches, bug fixes, updates, maintenance, and service packs (collectively, “Maintenance”) necessary for the proper function and security of the SOFTWARE. EMERALD is not responsible for performance or security issues encountered with the SOFTWARE that result from LICENSEE’S failure to accept the application of Maintenance that is necessary for the proper function and security of the SOFTWARE.

4. Restricted Use

LICENSEE shall use the SOFTWARE under this License Agreement only on computers which are:
1. owned or leased by LICENSEE and
2. controlled by LICENSEE.
In the event that LICENSEE has their SOFTWARE hosted by a third party, express permission must be given by EMERALD prior to installation and LICENSEE shall ensure that the third party respects all conditions of this License Agreement.
The number of AUTHORIZED END-USERS of the SOFTWARE shall not exceed the number of copies of SOFTWARE specified in the original order and subsequent additional orders (which number may be modified in the future, by mutual agreement between the parties).
LICENSEE agrees to use the SOFTWARE only as indicated hereunder for its own business purposes, and not for commercial sublicensing, timesharing, rental, service bureau, or related uses, or provided to another party as part of a “Software as a Service” SaaS model.
LICENSEE agrees not to create, attempt to create, or permit to or help others to create source code from the SOFTWARE furnished pursuant to this License Agreement. LICENSEE agrees that it will not reverse engineer or decompile the SOFTWARE for any purpose whatsoever.
LICENSEE shall warn and advise each AUTHORIZED END-USER that receives a copy of the SOFTWARE that:
1. the user is not permitted to copy the SOFTWARE,
2. the SOFTWARE cannot be transferred except as permitted herein, and
3. LICENSEE must at all times have positive knowledge of the precise location of each copy of the SOFTWARE.
LICENSEE does not acquire under this Agreement any right or license to use the Services in excess of the scope and/or duration of the Services stated in LICENSEE’S order. Upon the end of the Services ordered, LICENSEE’S right to access and use the Services will terminate.
LICENSEE is responsible for identifying and authenticating all Users, for approving access by such Users to the SOFTWARE or ‘Software as a Service’, for controlling against unauthorized access by Users, and for maintaining the confidentiality of usernames, passwords, and account information. By federating or otherwise associating LICENSEE and LICENSEE’S Users’ usernames, passwords, and accounts with EMERALD or Oracle, LICENSEE accepts responsibility for the confidentiality and timely and proper termination of user records in LICENSEE’S local (intranet) identity infrastructure or on LICENSEE’S local computers. EMERALD is not responsible for any harm caused by LICENSEE’S Users, including individuals who were not authorized to have access to the SOFTWARE but who were able to gain access because usernames, passwords or accounts, were not terminated on a timely basis in LICENSEE’S local identity management infrastructure or LICENSEE’S local computers. LICENSEE is responsible for all activities that occur under LICENSEE’S and LICENSEE’S Users’ usernames, passwords, or accounts, or as a result of LICENSEE’S or LICENSEE’S Users’ access to the Services, and agrees to notify EMERALD immediately of any unauthorized use. LICENSEE agrees to make every reasonable effort to prevent unauthorized third parties from accessing the SOFTWARE.
LICENSEE shall not use or permit use of the SOFTWARE, including by uploading, emailing, posting, publishing, or otherwise transmitting any material, including LICENSEE’S Content, LICENSEE’S Applications, and Third Party Content, for any purpose that may (a) menace or harass any person or cause damage or injury to any person or property, (b) involve the publication of any material that is false, defamatory, harassing, or obscene, (c) violate privacy rights or promote bigotry, racism, hatred, or harm, (d) constitute unsolicited bulk e-mail, “junk mail”, “spam”, or chain letters; (e) constitute an infringement of intellectual property or other proprietary rights, or (f) otherwise violate applicable laws, ordinances, or regulations. In addition to any other rights afforded to EMERALD under this Agreement, EMERALD reserves the right, but has no obligation, to take remedial action if any material violates the restrictions in the foregoing sentence, including the removal or disablement of access to such material. EMERALD shall have no liability to LICENSEE in the event that EMERALD takes such action. LICENSEE shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and ownership of all of LICENSEE’S Content and LICENSEE’S Applications. LICENSEE agrees to defend and indemnify EMERALD against any claim arising out of a violation of LICENSEE’S obligations under this section.

5. Payments

All base subscription fee payments to EMERALD are due prior to the usage period. For monthly subscriptions, this is prior to the beginning of the next usage month, for yearly subscriptions this is prior to the beginning of the next usage year. The start date is calculated from the date the LICENSEE has executed this agreement.
For additional usage charges over and above the base subscription fee, the LICENSEE will be charged directly on a pre-approved credit card or via invoice. Invoices must be paid within 30 days of receipt to ensure no lapse in service due to lack of payment.
It is the LICENSEE’S responsibility to ensure payments are made on time.
If this License Agreement is renewed, LICENSEE agrees to continue to pay EMERALD the monthly or yearly subscription and/or maintenance fee as applicable.
If LICENSEE requires a purchase order to renew the license agreement before payment can be made, LICENSEE agrees to issue such purchase order no less than thirty (30) days prior to the due date.
All payments are exclusive of any tariffs, duties, or taxes imposed or levied by any government or governmental agency. LICENSEE shall be liable for payment of all such taxes, however designated or levied based on LICENSEE’S possession or use of the SOFTWARE.

6. Term and Termination

This License Agreement shall become effective upon signing by LICENSEE and acceptance by EMERALD. The length of the subscription is the term agreed upon in the order covered under this EULA. Monthly subscription fees must be paid by LICENSEE prior to next usage period for uninterrupted usage and ongoing access to SOFTWARE maintenance and technical support. Use of SOFTWARE, SERVER LICENSE, DATABASE LICENSE, PROJECT LICENSE, or any other items covered under The License Agreement by LICENSEE prior to signing and acceptance of The License Agreement will imply acceptance of The License Agreement.
EMERALD may terminate this License Agreement upon written notice if LICENSEE violates any of the provisions of this License Agreement and fails to correct the violation within ten (10) calendar days following a written notice specifying the breach. In the event of termination under this section, LICENSEE shall immediately stop using the SOFTWARE and certify to EMERALD that all copies of the SOFTWARE in LICENSEE’S possession have been destroyed.
LICENSEE may terminate this License Agreement at any time. If LICENSEE terminates this License Agreement for any reason, other than a breach by EMERALD, prior to the completion of the subscription term, all payments made by LICENSEE to EMERALD are non-refundable. LICENSEE is responsible to pay the termination penalty fee corresponding to the specific package covered under this License Agreement.
Upon termination of this License Agreement after the subscription term is completed, or upon non-renewal of this License Agreement, for any reason other than a breach by EMERALD, there shall be no refund of any payments, and LICENSEE shall pay promptly any additional usage fees that may be due. LICENSEE will no longer be allowed to utilize the SOFTWARE, and all copies of SOFTWARE in LICENSEE’S possession must be destroyed.
Upon non-renewal of this License Agreement, except for termination under section 6.b or termination prior to the completion of the SUBSCRIPTION TERM, LICENSEE will no longer be allowed to utilize the SOFTWARE, and all copies of SOFTWARE in LICENSEE’S possession must be destroyed.
Except for actions for nonpayment or breach of EMERALD’S proprietary rights, no action, regardless of form, arising out of, or relating to, this Agreement may be brought by either party more than two years after the cause of action has accrued.

7. Limited Warranties

THIS SOFTWARE IS LICENSED “AS IS” WITHOUT WARRANTY AS TO ITS PERFORMANCE. THERE ARE NO WARRANTIES EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL SUCH WARRANTIES ARE EXPRESSLY DISCLAIMED. IN NO EVENT SHALL EMERALD BE RESPONSIBLE FOR ANY INDIRECT OR CONSEQUENTIAL DAMAGES OR LOST PROFITS, EVEN IF EMERALD HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. EXCEPT ASFOR A BREACH OF EMERALD'S OBLIGATIONS SET FORTH IN SECTION 7.b, EMERALD’S MAXIMUM LIABILITY ARISING OUT OF, OR RELATING TO, THIS LICENSE AGREEMENT SHALL NOT EXCEED THE TOTAL FEES PAID HEREUNDER AS SET FORTH IN THE INITIAL, OR ANY ADDITIONAL, SOFTWARE ORDER.
EMERALD may include in the SOFTWARE pre-existing materials that are owned or licensable by EMERALD or a third party. EMERALD agrees to defend, or settle at its option, any action against LICENSEE arising from a claim that the SOFTWARE infringes any copyright or trademark or any third party patent provided that: i) EMERALD is promptly notified of such action and is given control over the defense or settlement thereof; ii) the SOFTWARE has not been modified by LICENSEE; and iii) the charge of infringement has not arisen from the use of the SOFTWARE in combination with other hardware or SOFTWARE components not expressly approved for such use by EMERALD, where it is the combination that is charged to infringe. EMERALD shall, at its option and expense, secure for LICENSEE the right to continue using the SOFTWARE, or replace or modify the SOFTWARE so that it becomes non-infringing, or grant LICENSEE a credit minus a reasonable depreciation for the use of the SOFTWARE, but in no event shall such credit be greater than the license fee paid hereunder.

8. Export Law Assurances

LICENSEE may not download or otherwise export or re-export the SOFTWARE or any direct product thereof or any technical data related thereto except in full compliance with all Canadian export control laws and other applicable laws and regulations.

9. General Provisions

LICENSEE and any LICENSEE Affiliate may order SOFTWARE hereunder by executing an Affiliate Participation Agreement.
LICENSEE agrees that this License Agreement and the SOFTWARE may not be assigned, sublicensed, or transferred without the prior written consent of EMERALD, which consent may be withheld at the sole discretion of EMERALD. Notwithstanding the foregoing, LICENSEE may, without such prior written consent, assign and delegate this License Agreement to (i) an affiliate (ii) a successor resulting from a sale of all or substantially all of its assets, or (iii) a successor resulting from a reorganization (including in bankruptcy) or merger with another entity
LICENSEE grants the SOFTWARE the ability to send EMERALD data on extract/upload records monthly for billing purposes.
LICENSEE grants EMERALD the right to audit the books and records of LICENSEE regarding relevant to the use of the SOFTWARE and the copies made, including the right to reserve a list showing each copy’s custodian and precise location upon written notice of five (5) days, and to physically conduct, provided that: (i) EMERALD provides at least ten (10) business days advanced notice of any such audit, (ii) such audit is conducted during normal business hours and without any unreasonable disruption to LICENSEE'S operations; and (iii) such an audit shall be conducted no more often than once per calendar year.
EMERALD shall not be liable for delays or non-performance of this License Agreement occasioned by strikes, fires, accidents, loss of internet connectivity, or other causes beyond the control of EMERALD.
This License Agreement supersedes all prior agreements, proposals, representations, and communications between the parties relating to the subject matter herein. This License Agreement shall also prevail over any purchase order submitted for the SOFTWARE.
The headings for each section are stated for convenience only and are not to be construed as limiting.
If a part of this License Agreement is held unenforceable or invalid or prohibited under law, it shall be struck from this License Agreement and shall not affect the enforceability of the other parts of this License Agreement.
Neither party shall have the right to use the trademark of the other Party, other party’s legal name, or trade name, or to refer to this License Agreement or the services performed hereunder directly or indirectly, in connection with any product, promotion or publication without the prior written approval of the other Party, as applicable. Consent to develop Project Case Study(ies) shall not be unreasonably withheld from EMERALD by LICENSEE and shall be provided in a reasonable timeframe.
Provisions that survive termination or expiration of this Agreement are those relating to limitation of liability, indemnification, payment, and others which by their nature are intended to survive.

10. Privacy Policy

EMERALD will not sell, rent, lend, exchange or give LICENSEE’S mail address, postal code or phone number to a third party without LICENSEE’S explicit permission. The information provided by the LICENSEE is protected and can’t be found by an outside party. EMERALD will use LICENSEE’S corporate information only as reasonably necessary to provide contracted services and to collect fees owed. EMERALD may also use LICENSEE’S data in order to improve LICENSEE’S user experience.
LICENSEE authorizes EMERALD upon request to use its name, business name, city, country information and comments in marketing documents or as testimonials on EMERALD’S website. At any time, LICENSEE can send a written notice to withdraw this authorization.
EMERALD will only disclose personal information to a third party if required by law as evidenced by a valid Court Order of competent jurisdiction or to a collection agency if needed.
EMERALD can share with its partners or third parties a generic, anonymous, aggregate of information about its users or website visitors. For example, it could provide statistical data about the number of users of a particular area. The transmitted information is for statistical usage and will not reveal in any way LICENSEE’S identity.

11. Applicable Laws

The rights and obligations of the parties under this License Agreement shall be governed by the laws of the Province of Alberta, Canada.

12. Language

The Parties to this Agreement have requested it be drafted in English. Les Parties à la présente entente ont expressément exigé qu’elle soit rédigée en Anglais.