NetWrix End user license agreement
Software License Agreement
PLEASE READ THIS SOFTWARE LICENSE AGREEMENT CAREFULLY. BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE YOU INDICATE ACCEPTANCE OF AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE. THIS AGREEMENT DOES NOT SUPERSEDE ANY OTHER WRITTEN AGREEMENT BETWEEN YOU AND NETWRIX, INC.
This agreement (the "Agreement") is made between NetWrix Corporation ("NetWrix") and you, the customer ("Licensee"). The terms and conditions of this Agreement are intended by the parties as a final expression of their agreement with respect to the subject matter hereof and may not be contradicted by evidence of any prior or contemporaneous agreement unless such agreement is signed by both parties. In the absence of such an agreement, this Agreement shall constitute the complete and exclusive statement of the terms and conditions and no extrinsic evidence whatsoever may be introduced in any judicial proceeding that may involve the Agreement. This Agreement may not be modified except by a writing executed by both parties hereto.
SECTION 1. GENERAL PROVISIONS.
The provisions of this Section 1 shall apply to any and all Software, as defined below.
1.1 Software. For the purpose of this Agreement, the licensed computer software program(s) downloaded and/or installed pursuant to this Agreement and the supporting documentation for such will be referred to as the "Software".
1.2 Restrictions. NetWrix reserves any and all rights, implied or otherwise, which are not expressly granted to Licensee hereunder, and retains all rights, title and interest in and to the Software. Licensee agrees that it has no right whatsoever to modify the Software or any portion thereof in any manner. Licensee shall not reverse engineer, decompile, disassemble, modify, adapt, rent, lease, loan or create derivative works based upon the Software or any part thereof. Licensee may not use the Software as a managed service provider, application service provider, in any commercial time share arrangement, or in any other activity intended to directly produce revenue. Licensee may not resell the Software licensed hereunder nor use the software to provide consulting or training services to third parties. Licensee shall not assign the Software to a third party for use in managing Licensee's environment without the prior written consent of NetWrix.
1.3 Export Law Assurances. Licensee shall not export or re-export, or allow the export or re-export of the Software or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
1.4 Limitation of Remedies and Damages. IN NO EVENT WILL NETWRIX, ITS SUBSIDIARIES OR ANY OF THE LICENSORS, DIRECTORS, OFFICERS, EMPLOYEES OR AFFILIATES OF ANY OF THE FOREGOING BE LIABLE TO LICENSEE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND DATA AND THE LIKE), WHETHER FORESEEABLE OR UNFORESEEABLE, OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES, REGARDLESS OF THE BASIS OF THE CLAIM AND EVEN IF NETWRIX OR A NETWRIX REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. NETWRIX'S CUMULATIVE LIABILITY FOR DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO NETWRIX FOR THE SOFTWARE (EXCLUDING APPLICABLE TAXES AND PAYMENT FEES) THAT CAUSED THE DAMAGES. NO ACTION MAY BE BROUGHT AGAINST NETWRIX LATER THAN ONE (1) MONTH FROM THE TERMINATION OF THIS AGREEMENT.
1.5 Nondisclosure. "Confidential Information" means the Agreement, Software, source code, object code, trade secrets, know-how and any proprietary tools, proprietary knowledge or proprietary methodologies disclosed by one party (the "Disclosing Party") to the other party (the "Receiving Party") and not generally available to the public, which the Receiving Party may gain access to or knowledge of as a result of this Agreement. The Receiving Party shall observe complete confidentiality with respect to the Confidential Information, and shall use commercially reasonable efforts and take all reasonable steps to protect the Confidential Information from any use, reproduction, publication, disclosure, or distribution except as specifically authorized by this Agreement. The Receiving Party shall promptly notify the Disclosing Party of any known unauthorized use or disclosure of the Confidential Information and will cooperate with the Disclosing Party in any litigation brought by the Disclosing Party against third parties to protect its proprietary rights.
1.6 Assignment. Licensee may not assign or transfer its rights or obligations under this Agreement without prior written approval by NetWrix and any purported assignment or transfer without NetWrix's consent shall be null and void.
1.7 Injunctive Relief. Licensee hereby expressly agrees that NetWrix, in addition to any other rights or remedies which NetWrix may possess, shall be entitled to injunctive and other equitable relief without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
1.8 Software Supplied to the Government. The Software is a "commercial item" under FAR 2.201. Consistent with FAR section 12.212 and DFARS section 227.7202, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Software or Documentation by the U.S. government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted herein.
1.9 Survival. Sections 1.2, 1.4, 1.5, 1.10, 1.12 and 3.4 shall survive termination of this Agreement for any reason whatsoever.
1.10 Warranties. THE LIMITED WARRANTIES AS DESCRIBED IN SECTION 2.2 AND SECTION 3.3 OF THIS AGREEMENT ARE THE ONLY WARRANTIES PROVIDED BY NETWRIX AND ITS LICENSORS, WHO EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO THE SOFTWARE AND ACCOMPANYING WRITTEN MATERIALS.
1.11 Termination. This Agreement or an individual license granted hereunder may be terminated (a) by mutual agreement of NetWrix and Licensee, (b) by Licensee, upon thirty (30) days prior written notice to NetWrix, and (c) by NetWrix, if Licensee or its Affiliate breaches this Agreement and fails to cure such breach to NetWrix's reasonable satisfaction within thirty (30) days following receipt of NetWrix's notice thereof. Upon any termination of this Agreement or a license granted hereunder, Licensee shall immediately cease use of the applicable Software and certify in writing to NetWrix within thirty (30) days after termination that Licensee has destroyed or returned to NetWrix such Software and all copies thereof. Termination of this Agreement shall not limit either party from pursuing any remedies available to it, including injunctive relief, or relieve Licensee of its obligation to pay all fees that have accrued or have become payable by Licensee hereunder.
1.12 General. This Agreement will be construed under the laws of the U.N. Convention of Contracts for the Sale of International Goods. Service of process can be done in accordance with the governing law of the Agreement. Performance of any obligation required by a party hereunder may be waived only by a written waiver signed by the other party, which waiver shall be effective only with respect to the specific obligation described therein. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, that provision will be enforced to the maximum extent permissible, and the remaining provisions of this Agreement will remain in full force and effect.
SECTION 2. TRIAL EVALUATION TERMS AND CONDITIONS.
The provisions of this Section 2 shall apply to Software downloaded for temporary and/or trial use.
2.1 License. Subject to the terms and conditions of this Agreement, the Software is licensed, not sold to Licensee by NetWrix for an evaluation period of seven (20) days from the Software installation date ("Evaluation Period").
(A). Licensee may use the Software for its own internal evaluation and for no other purpose.
(B). Licensee's opportunity for a free evaluation of the Software is limited to one Evaluation Period per release of the Software.
(C). There is no fee for Licensee's use of the Software in accordance with this Agreement during the Evaluation Period, however, Licensee is responsible for any applicable shipping charges or taxes which may be incurred under this Agreement, and any fees which may be associated with usage beyond the scope permitted herein.
(D). Licensee acknowledges that it is downloading the Software with the intent to purchase a perpetual license to use the Software upon completion of a successful evaluation of such. NetWrix sales representative may contact Licensee after the download to discuss Licensee's purchase of a perpetual license.
2.2 "AS-IS" Warranty. NetWrix warrants that it or its licensors retain(s) all intellectual property rights in the Software and any accompanying written materials provided by NetWrix, including but not limited to copyright, and that it has the legal right to grant Licensee the License granted under this Agreement. LICENSEE AND NETWRIX AGREE THAT THE SOFTWARE IS PROVIDED "AS IS" AND UNSUPPORTED, AND THAT NETWRIX MAKES NO WARRANTY AS TO THE SOFTWARE, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
SECTION 3. "FULL" LICENSE TERMS AND CONDITIONS.
The provisions of this Section 3 shall apply to Software licensed with no time limits.
3.1 LICENSE. Subject to the terms and conditions of this Agreement, and in consideration for Licensee's payment of the applicable license fees, NetWrix hereby grants to Licensee, and Licensee accepts from NetWrix, a perpetual, non-exclusive, non-transferable and non-sublicensable right to use the Software. This license consists of the right for Licensee to install, use, access, run, or otherwise interact with the Software within the scope of license granted, for Licensee's own internal business operations, and in accordance with the related Documentation. Licensee may also make a reasonable number of additional copies of the Software solely for non-productive archival purposes, so long as neither the original and a copy nor two copies of the same license are in use at the same time, and so long as each copy contains all titles, trademarks, and copyrights and restricted rights notices as in the original. Nothing in this Agreement entitles Licensee to receive source code for any part of the Software.
3.2 Maintenance And Other Services. During any Maintenance Period and for the applicable fees, NetWrix shall provide Licensee the Maintenance Services as listed in this Section 3.2. The "Maintenance Period" is a twelve (12) month period. The first Maintenance Period begins on the date of purchasing of the Software and ends twelve (12) months thereafter. Each Maintenance Period shall automatically renew for another twelve (12) months unless the renewal has been cancelled by either party's giving written notice at least sixty (60) days prior to the first day of the renewal Maintenance Period. Maintenance fees shall be due in advance of renewal. NetWrix will provide other Services (other than Maintenance Services) subject to availability and under the terms and conditions, including service rates, as indicated on the applicable ordering document.
Maintenance Services consist of the following:
- NetWrix shall make available to Licensee new versions and releases of the Software, including Software corrections, enhancements and upgrades, if and when NetWrix makes them generally available without charge as part of Maintenance Services for the Software.
- NetWrix shall respond to unlimited communications from Licensee that report software failures not previously reported to NetWrix.
- NetWrix shall respond to a reasonable number of communications from Licensee that request consultation on the operational/technical aspects of the Software.
- Licensee shall have access to NetWrix Technical Support Web site at http:
- NetWrix's Maintenance Services shall be available via the Web or email. NetWrix will respond to inquiries within two (2) business days from receipt of the inquiry.
3.3 Limited Warranty. NetWrix warrants that for a period of thirty (30) days from the date of initial delivery (i) the media provided by NetWrix, if any, on which the Software is recorded will be free from material defects in materials and workmanship under normal use, and (ii) the operation of the Software, as provided by NetWrix, will substantially conform to the Documentation applicable to the Software.
THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF, AND NETWRIX HEREBY DISCLAIMS, ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
Licensee must report in writing any breach of the foregoing warranties to NetWrix during the warranty period, and Licensee's exclusive remedy, and NetWrix's sole obligation, for any such breach of warranty shall be for NetWrix to replace defective media and to correct or provide a workaround for reproducible errors that cause a breach of the warranty within a reasonable time considering the severity of the error and its effect on Licensee, or, at NetWrix's option, refund the license fees paid for the nonconforming Software upon return of such Software to NetWrix and termination of the related license hereunder.
3.4. Usage Verification. At NetWrix's request, but not more frequently than annually, Licensee shall furnish NetWrix with a document signed by Licensee's authorized representative verifying Licensee's usage of the Software. Licensee will permit NetWrix to review Licensee's deployment and use of the Software for compliance with the terms of the license agreement at NetWrix's expense. Any reviews shall be scheduled at least 15 days in advance, shall be conducted during normal business hours at Licensee's facilities, and shall not unreasonably interfere with Licensee's business activities. If Licensee's use of the Software is found to be greater than contracted for, Licensee will be invoiced for the additional licenses or license upgrades (based on the applicable units of measure, e.g., servers, server tiers or users) and the unpaid license fees shall be payable in accordance with this Agreement. Additionally, if the unpaid fees exceed 5% of the license fees paid for the subject Software, then Licensee shall also pay NetWrix's reasonable costs of conducting the audit.