Terms and Service Agreement
SUSE Subscription Offering Terms and Conditions
- Acceptance. By accessing the benefits of a Subscription Offering or by clicking the relevant checkbox (or similar action) while accessing SUSE Customer Center, you (“You”) accept this agreement (“Agreement”) with SUSE LLC (“SUSE”). IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF A COMPANY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THE COMPANY TO THIS AGREEMENT, AND THAT YOU HAVE READ AND UNDERSTOOD THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU OR THE COMPANY DOES NOT AGREE WITH THE TERMS OF THIS AGREEMENT, YOU SHOULD NOT ACCEPT IT. If you are accepting this Agreement on behalf of your company, then the terms “you” and “your” refer to your company whenever used below. If You have previously accepted a different version of this agreement, this Agreement supersedes that agreement. “Subscription Offering” means a SUSE offering You acquire for a “SUSE Product” (e.g., subscription services available with SUSE Linux Enterprise Server (“SLES”) products, whether designated as Basic, Standard, or Priority Subscription) and may include Subscriptions for non-SUSE products. A “SUSE Product” is a software product that you acquire directly or indirectly from SUSE for which Subscription Offerings are made available.
- Authority. You represent that You are the licensee and have rightfully acquired licenses for all software covered by each Subscription Offering. If You are not using the SUSE Product or Subscription Offering as an end user and You have a separately executed agreement with SUSE (e.g., You are an OEM, VAR, etc.), the terms and conditions herein shall not apply to You.
- End User License Agreements. Software You receive as part of a Subscription Offering for a SUSE Product (e.g., an update), if not accompanied by its own license terms, is subject to the end user license agreement accompanying the SUSE Product.
- Subscription Offering Types. A description of the different types of Subscription Offerings is available at https://www.suse.com/support/programs/subscriptions/
- Subscription Offering. 5.1 Unit of Measure. In general, unless specified otherwise in the end user license agreement for the applicable SUSE Product or other written agreement between the parties, the unit of measure for a Subscription Offering is the metric specified in Exhibit A (“Unit”). 5.2 Coverage Requirement. When You acquire a Subscription Offering for a SUSE Product, You must acquire sufficient Subscription Offerings in the applicable Unit to cover all acquired, installed, or deployed SUSE Products (including variants or components thereof). By way of example, if the Unit is per device on which the SUSE Product is installed, then You must acquire a Subscription Offering for each such device. 5.3 No Mixing of SUSE Subscription Offerings. Subscription Offerings may only be applied to the exact SUSE Product for which the Subscription Offering was acquired (by way of example and not limitation, You cannot apply Subscription Offering benefits for the x86 platform version of SUSE® Linux Enterprise Server (SLES) to the z System platform version of SLES, nor may you apply Subscription Offerings benefits for SLES to SLES for SAP Applications). With respect to Subscription Offerings for such an exact SUSE Product, You may concurrently benefit from Standard Subscription Offerings and from Priority Subscription Offerings. However, under no circumstances are You permitted to concurrently benefit from a Basic Subscription Offering and a Standard and/or Priority Subscription Offering. SUSE’s Basic Subscription Offerings are no longer offered since May 1st 2015 for SUSE Linux Enterprise Server for x86 and/or x86-64 and from April 1st 2016 for SUSE Linux Enterprise Server for POWER. Notwithstanding the foregoing restriction on concurrently benefiting from a Basic Subscription Offering and a Standard and/or Priority Subscription Offering, if You have Basic Subscription Offerings for SUSE Linux Enterprise Server for x86 and/or x86-64 which expire after May 1st 2015 or Basic Subscription Offerings for SUSE Linux Enterprise Server for POWER which expire after April 1st 2016, You may continue to benefit from those Basic Subscription Offerings until they expire even if this means concurrently benefiting with Standard and/or Priority Subscription Offerings. These Basic Subscription Offerings cannot be renewed. 5.4 Evaluation Offerings. SUSE may offer limited Subscription Offerings for evaluation purposes. These Subscription Offerings are time limited for sixty (60) days unless otherwise agreed to between You and SUSE. You agree not to use such Subscription Offerings in any production environment or for commercial use.
- Benefits. Each Subscription Offering acquired by You is solely for Your internal use and direct benefit. For each Subscription Offering You are entitled to receive the materials and services, including technical support services as applicable, identified in this Agreement and on the SUSE web page that defines the Subscription Offering – https://www.suse.com/support/handbook/. Page 2 of 26 November 7th 2016
- Reporting. You acknowledge that the completeness and accuracy of the information You provide to SUSE may affect SUSE’s ability to provide Subscription Offering benefits. Any unauthorized use of Subscription Offering will be treated as a material breach of this Agreement. SUSE has the right to verify Your compliance with this Agreement. You agree to: (1) Implement internal safeguards to prevent any unauthorized copying, distribution, installation, use of, or access to, the SUSE Products including materials provided under this Agreement; (2) Keep records sufficient to certify Your compliance with this Agreement, and, upon request of SUSE, provide and certify metrics and/or reports based upon such records and account for both numbers of copies (by product and version) and network architectures as they may reasonably relate to Your use, licensing and deployment of the SUSE Product, Subscription Offerings and Units; and (3) Allow a SUSE representative or an independent auditor (“Auditor”) to inspect and audit Your, or Your contractor’s, computers and records during Your normal business hours for compliance with the terms of this Agreement. Upon SUSE’s and the Auditor’s presentation of their signed, written confidentiality statement form to safeguard Your confidential information, You shall fully cooperate with such audit and provide any necessary assistance and access to records and computers. If an audit reveals that You have or at any time have had unlicensed installation, use of, or access to the Software or Subscription Offerings, You will, within 30 days, purchase sufficient Subscription Offerings to cover any shortfall without benefit of any otherwise applicable discount and subject to fees reflecting the duration of the shortfall. If a shortfall of 5% or more is found, You must reimburse SUSE for the costs incurred in the audit.
- Product Support lifecycle and Application of Current Software. SUSE’s product support lifecycle provides support availability guidelines for SUSE Products and is described at: https://www.suse.com/support/policy.html. Subscription Offering benefits may be conditioned on You having applied the most current maintenance software available; for example, once a new Service Pack becomes available, support may be conditioned on You having applied that Service Pack. Similarly, support for Modules may be conditioned on You having updated to the most recent Module version made available by SUSE.
- Changes to this Agreement. From time to time SUSE may make changes to this Agreement including changes to Subscription Offering Units in Exhibit A. If You renew Your Subscription Offerings or You acquire new Subscription Offerings, You agree that the most recent Agreement (including changes to Subscription Offering Units in Exhibit A hereto) governs all of your SUSE Subscription Offerings and related SUSE Products.
- Warranty Disclaimer; Limitation of Liability; Reserved Rights. EXCEPT AS OTHERWISE RESTRICTED BY LAW, SUSE, ON BEHALF OF ITSELF AND ITS AFFILIATES, SUPPLIERS, DISTRIBUTORS, DEALERS, RETAILERS AND RESELLERS (COLLECTIVELY “THIRD PARTIES”) DISCLAIMS AND EXCLUDES ANY AND ALL IMPLIED WARRANTIES INCLUDING ANY WARRANTIES OF MERCHANT-ABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. SUSE AND THIRD PARTIES MAKE NO WARRANTY, REPRESENTATION OR PROMISE NOT EXPRESSLY SET FORTH IN THE END USER LICENSE AGREEMENT ACCOMPANYING THE SOFTWARE. NEITHER SUSE NOR THIRD PARTIES WARRANT THAT THE SOFTWARE OR SERVICES WILL SATISFY YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED. SUSE AND THIRD PARTIES RESERVE ALL RIGHTS NOT EXPRESSLY GRANTED HEREIN AND GRANT NO ADDITIONAL RIGHTS, LICENSES OR COVENANTS BY IMPLICATION, ESTOPPEL, OR OTHERWISE. NEITHER SUSE NOR ITS AFFILIATES, THIRD PARTIES, SUBSIDIARIES, OR EMPLOYEES WILL IN ANY CASE BE LIABLE FOR ANY OF THE FOLLOWING: (A) ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, TORT, ECONOMIC, OR PUNITIVE DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE OR SERVICES, INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, BUSINESS OR DATA, EVEN IF ADVISED OF THE POSSIBILITY OF THOSE DAMAGES; OR (B) AGGREGATE LIABILITY FOR DIRECT DAMAGES TO PROPERTY OR PERSON (WHETHER IN ONE INSTANCE OR A SERIES OF INSTANCES) EXCEEDING 1.25 TIMES THE AMOUNT PAID BY YOU FOR THE SOFTWARE OR SERVICES OUT OF WHICH SUCH CLAIM AROSE (OR $50 (U.S.) IF YOU RECEIVED THE SOFTWARE OR SERVICES FREE OF CHARGE)
- Law: Integration. All matters arising out of or relating to the Agreement will be governed by the substantive laws of the United States and the State of Utah without regard to its choice of law provisions. Any suit, action, or proceeding arising out of or relating to the Agreement may only be brought before a federal or state court of appropriate jurisdiction in Utah. If a party initiates Agreement-related legal proceedings, the prevailing party will be entitled to recover reasonable attorneys’ fees. If, however, Your country of principal residence is a member state of the European Union or the European Free Trade Association, (1) the courts of Ireland shall have exclusive jurisdiction over any action of law relating to this Agreement; and (2) where the laws of such country of principal residence are required to be applied to any such action of law, the laws of that country shall apply. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. This Agreement constitutes the entire agreement between You and SUSE and its Third Parties with respect to the Subscription Offerings. It may be modified only by a written agreement executed by both parties.
- Transfer. This Agreement may not be transferred or assigned without the prior written approval of SUSE; any other transfer or assignment or attempted transfer or assignment shall be null and void.