IMPORTANT-READ CAREFULLY: BY DOWNLOADING, INSTALLING, OR USING THE SOFTWARE, YOU AND THE BUSINESS ENTITY YOU REPRESENT(COLLECTIVELY, "You" or "Licensee") AGREE TO BE BOUND BY THE TERMS OF THIS END USER LICENSE AGREEMENT ("EULA"). IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU MUST NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE.
This End User License Agreement (the "EULA") is hereby entered into and agreed upon by You and the business entity you represent(collectively, “You” or "Licensee") and Device42, Inc. and its Affiliates, directors, officers, agents, employees, and its suppliers and licensors (collectively "device42") for the Software.
EVALUATION LICENSE: If you are licensing the Software for evaluation purposes, your use of the Software is only permitted for the period limited by the Software License Key. Notwithstanding any other provision in this EULA, an Evaluation License of the Software is provided "AS-IS" without support or warranty of any kind, expressed or implied.
1.1 "Documentation" means, collectively, the operation instructions, release notes, user manuals and/or help files for the Software in electronic or written form.
1.2 "Software" means software products that are licensed to Licensee under this Agreement, including, but not limited to, device42 virtual appliance, any related components purchased or provided with the Software, Documentation, and any maintenance releases thereto. The term
“Software” includes the Open Source Software and the APIs except where the context or this Agreement indicates otherwise.
1.3 "Software License Key" means a valid license key issued to License to activate and use the Software.
1.4 "Open Source Software" means various software components including open source software, that may be part of the Software.
2. General Use.
2.1 Open source Software and/or Components.Portions of the Software provided to Licensee contain open source software or publicly available content under separate license and copyright requirements which can be found at http://www.device42.com/open_source_license.txt. Nothing in this Agreement limits an end user’s rights under, or grants the Licensee rights that supersede, the terms of any applicable Open Source Program end user license agreement.
2.2 Application Programming Interface (APIs) The APIs are provided for Licensee's use solely for the purpose of creating programs or scripts that communicate with device42 Software. Licensee’s use of such programs or scripts is "AS-IS" without support or warranty of any kind, expressed or implied.
3. GRANT OF LICENSE.Upon payment of the fees applicable under this Agreement, device42 hereby grants to Licensee a one-year, non-exclusive, nontransferable license to use the Software and any related documentation ("Documentation"), subject to the following terms:
For each Software license key that Licensee purchases, Licensee may: (i) use the Software on any single Server; and (ii) copy the Software for back-up and archival purposes, provided any copy must contain all of the original Software's proprietary notices.
The Software is "in use" on a Server when it is loaded into temporary memory or installed in permanent memory (Hard Drive, CD-ROM or other storage device). Licensee agrees to use Licensee's best efforts to prevent and protect the contents of the Software and Documentation from unauthorized use or disclosure. Licensee agrees to only install a Software license key obtained directly from device42.
Licensee is responsible for ensuring that all individuals who access the Software through Licensee are familiar with the terms of this Agreement and for use by such individuals in compliance with these terms.
4. LICENSE RESTRICTIONS.
4.1 Licensee may not: (i) permit other individuals to use the Software or Documentation except under the terms listed above; (ii) modify, translate, reverse engineer, decompile, disassemble (except to the extent that this restriction is expressly prohibited by law) or create derivative works based upon the Software or Documentation; (iii) copy the Software or Documentation (except for back-up or archival purposes); (iv) rent, lease, transfer, or otherwise grant rights to the Software or Documentation except to the extent expressly permitted under this Agreement; (v) remove any proprietary notices or labels on the Software or Documentation; or (vi) break out of the virtual machine console menu or gain access to the shell via any other means in order to execute commands from the command line.
Any violation of such license restrictions or other violation of this Agreement shall be grounds for immediate termination of Licensee's license to the Software.
4.2 Export Restrictions. Licensee represents that it is not a national or resident of any country subject to U.S. export restrictions.Licensee agree that it will not export or re-export, or allow the export or re-export of, the Software or any technology or information contained therein, or any direct product thereof, to any country, person, entity or end user subject to U.S. export restrictions.Licensee represents that neither the U.S. Bureau of Export Administration nor any other federal agency has suspended, revoked or denied Licensee’s export privileges.Licensee agree to comply with all applicable export laws, restrictions, and regulations of any United States or foreign agency or authority. Licensee agree not to export or re-export, or allow the export or re-export of, the Software or any technology or information contained therein, or any direct product thereof, from the country in which Licensee has installed and is using the Software in violation of any such laws, restrictions, or regulations.
4.3 Compliance with Applicable Laws. Licensee agrees that it will only use the Software and Documentation in a manner that complies with all applicable laws in the jurisdictions in which Licensee will use the Software and Documentation, including, but not limited to, applicable restrictions concerning copyright and other intellectual property rights.
4.4 Use by Services Providers.If Licensee is an IT consultant, IT solution provider, or facilities management provider, who deploys or maintains networks, security solutions, communications solutions, hardware, software components, upgrades, or the like to its customers, then such customers are required to individually license the device42 Software and each such customer must acknowledge an online version of this Agreement prior to gaining access to the Software.
5. Rights, Title, and Interest to Intellectual Property. Unless as conveyed herein, all rights, title, and interest in and to the Software, Documentation, and corresponding intellectual property shall remain in device42 or its suppliers or are publicly available. This Agreement does not grant Licensee any rights, title, or interest in or to any trademarks, service marks, or trade secrets of device42 or its suppliers. The Software and Documentation are protected by the copyright and intellectual property laws of the United States and international copyright and intellectual property laws and treaties. All rights not expressly granted under this Agreement are reserved by device42, its suppliers, or third parties.
6. Limited Warranties. Device42 warrants to Licensee that for a period of thirty (30) days following delivery of the Software to Licensee that the Software will perform substantially in conformance with the Documentation. Device42 does not warrant that the Software will meet all of Licensee’s requirements or that the use of the Software will be uninterrupted or error-free. The foregoing warranty applies only to failures in operation of the Software that are reproducible in standalone form and does not apply to: (i) a failure by Licensee to operate the Software within the systems requirements provided for the Software or Licensee’s use of the Software in combination with other products not provided or expressly approved by device 42; (ii) Software that is modified or altered by Licensee or any third party that is not authorized, in writing, by device42; (iii) Software that is operated in violation of this Agreement or other than in accordance with the Documentation; (iv) failures that are caused by other software or hardware products; or (v) Licensee’s failure or refusal to implement maintenance releases. To the maximum extent permitted under applicable law, as device42 and its supplier’s entire liability, and as Licensee’s exclusive remedy for any breach of the foregoing warranty, device42 will, at its sole option and expense, promptly repair or replace any Software that fails to meet this limited warranty or, if device42 is unable to repair or replace the Software, refund to Licensee the applicable license fees paid upon return, if applicable, of the nonconforming item to device42. The warranty is void if failure of the Software has resulted from accident, abuse, or misapplication. Any replacement Software will be warranted for 30 days. Device42 further warrants to Licensee that when and as delivered to Licensee, the Software will not contain any virus, Trojan horse, trap doors, disabling code or similar program or mechanism the effect of which is to disable, erase or otherwise harm or disclose any data or systems of Licensee.
EXCEPT AS EXPRESSLY STATED IN THIS SECTION, DEVICE42 IS PROVIDING AND LICENSING THE SOFTWARE TO LICENSEE “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
7. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR MORE THAN THE AMOUNT OF LICENSE FEES THAT LICENSEE HAS PAID TO DEVICE42 IN THE PRECEDING (12) TWELVE MONTHS OR BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST SAVINGS, BUSINESS INTERRUPTION, LOSS OF DATA, COSTS OF PROCUREMENT OF GOODS OR SERVICES OR OTHER SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE OR SOFTWARE PROGRAMS, EVEN IF SUCH PARTY OR A DEALER AUTHORIZED BY DEVICE42 HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS PARAGRAPH DOES NOT LIMIT LIABILITY FOR BODILY INJURY TO A PERSON OR TO EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT OR TO LICENSEE’S OBLIGATIONS UNDER SECTIONS 3 AND 4.
8. IP Indemnity. device42 shall defend Licensee against any third party claim that Licensee’s use of the Software in accordance with the terms of this Agreement infringes any U.S. copyright, trademark or patent, and device42 will indemnify Licensee against damages awarded on any such claim, provided that device42 is promptly notified of any and all threats, claims and proceedings against Licensee related thereto and given reasonable assistance (at device42’s expense) with, and sole control over, the defense and all negotiations for a settlement or compromise. device42 will not be responsible for any settlement it does not approve in writing. This Section sets forth Licensee’s sole and exclusive remedy and device42’s sole obligation with respect to claims of infringement. In the event that Licensee’s use of the Software is determined to infringe any third party’s intellectual property rights, device42 will, at its option, and at no cost to Licensee, either (a) procure for Licensee a license enabling Licensee to continue to use the Software, (b) replace the Software with substantially equivalent software, or (c) refund the fee paid by Licensee hereunder. The obligations of device42 under this Section 8 do not apply with respect to Software or portions or components thereof (1) intentionally omitted, (2) that are modified or altered by Licensee or any third party that is not authorized, in writing, by device42, (3) that are combined with other products, processes or materials to the extent that the alleged infringement is based on such combination, (4) to the extent that Licensee continued allegedly infringing activity after being notified thereof or of the availability of maintenance releases or other modifications that would have avoided the alleged infringement, or (5) where Licensee uses the Software in violation of this Agreement or other than in accordance with the Documentation.
9. Licensee’s Indemnity. Licensee is responsible for the consequences of its use of the Software. Licensee agrees to defend, indemnify and hold harmless device42, and any of its directors, officers, employees, affiliates, suppliers or agents, from and against any and all claims, losses, damages, liabilities and other expenses (including reasonable attorneys' fees) based on any claim brought by a third party, arising from Licensee's use, modification or distribution of the Software except to the extent device42 is required to indemnify Licensee under Section 8, provided that Licensee is promptly notified of any and all threats, claims and proceedings against device42 related thereto and given reasonable assistance (at Licensee’s expense) with, and sole control over, the defense and all negotiations for a settlement or compromise. Licensee will not be responsible for any settlement it does not approve in writing.
10. Confidentiality. Device42 will not use any information provided by Licensee that is marked confidential or that a reasonable person would presume is confidential for any purpose other than to provide the Software and Maintenance under this Agreement. Further, device42 will restrict disclosure of such confidential information to employees or contractors of device42 who have a need to know such information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than device42’s duty hereunder.
11.0Support And Maintenance terms and conditions.
11.1Maintenance Services. device42 agrees to provide to Licensee, during the validity of the license and term of this Agreement, support and maintenance (collectively "Maintenance") as follows:
11.2.1 Support: device42 will provide email and online support to Licensee for current versions of the Software. Licensee agrees to provide adequate information to device42 to assist in the investigation and to confirm that any problems have been resolved. device42 does not provide guaranteed response time but will make good faith effort to answer emails and online support tickets within forty-eight (48) hours or less during weekdays, excluding holidays.
11.2.2 Maintenance: device42 will supply, at no additional charge, any improvements, upgrades, or modifications to the Software that device42 makes generally available. Any such improvements, upgrades, or modifications shall become part of the Software for all purposes of this Agreement.
11.2.3 Licensee acknowledges and agrees that the Maintenance to be provided by device42 hereunder is limited to the most current version of the Software.
11.3 Exclusions. device42's obligation to provide Support is contingent upon proper use of the Software and full compliance with this Agreement. Moreover, device42 shall be under no obligation to provide Support should such services be required due to (a) failure to operate the Software within the systems requirements provided for the Software or use of the Software in combination with other products not provided or expressly approved by device 42 (b) any modification or attempted modification of the Software by Licensee or any third party that is not authorized, in writing, by device42 (c) Licensee's failure or refusal to implement maintenance releases(d) Software that is operated in violation of this Agreement or other than in accordance with the Documentation or (e) failures that are caused by other software or hardware products.
12 Miscellaneous. If any provision of this Agreement is held to be unenforceable, that shall not affect the enforceability of the remaining provisions, and such provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect while most nearly adhering to the intent expressed herein. This Agreement shall be governed by the laws of the State of New York and of the United States, without regard to any conflict of laws provisions, except that the United Nations Convention on the International Sale of Goods shall not apply. Licensee hereby consents to jurisdiction of the courts of both the state or federal courts of Connecticut. Licensee may not assign, sublicense or otherwise transfer this Agreement or any of its rights hereunder without device42’s prior written consent except to a purchaser of substantially all of Licensee’s assets. The provisions of Sections 5, 7, 8, 9 and 10 shall survive the expiration or termination of this Agreement.
13.Complete Agreement. This Agreement constitutes the entire agreement between the Parties and supersedes all prior or contemporaneous communications, agreements and understandings, written or oral, with respect to the subject matter hereof including without limitation any purchase order issued in connection with this Agreement unless otherwise expressly agreed by device42 in such purchase order or other written document. This Agreement shall not be amended or modified except in a writing signed by authorized representatives of each party.
14.Restricted Rights. Software is provided to non-DOD agencies with RESTRICTED RIGHTS and its supporting documentation is provided with LIMITED RIGHTS. Use, duplication, or disclosure by the government is subject to the restrictions as set forth in subparagraph "C" of the Commercial Computer Software - Restricted Rights clause at FAR 52.227-19. In the event the sale is to a DOD agency, the government's rights in software, supporting documentation, and technical data are governed by the restrictions in the Technical Data Commercial Items clause at DFARS 252.227-7015 and DFARS 227.7202. Manufacturer is device42, 760 Chapel St, New Haven CT 06611.