You, as the Customer, agree as follows:
1.1 "Application Software" shall mean the Server Environment Monitoring System Management software portion of the Licensed Software, in object code form only, and any other portions of the Licensed Software, in object code form only, provided by NTI.
1.2 "Designated Computer" shall mean the one (1) computer upon which Customer shall run the Licensed Software.
1.3 "Licensed Software" shall mean the Application Software plus any other software, in object code form only, supplied by NTI pursuant to this Agreement. The Licensed Software may include third party software, including but not limited to operating systems, licensed to NTI. If no operating system software is included in the software provided under this Agreement, you must make provision for any required operating system software licenses.
2.1 You are granted only a personal, non-transferable, nonexclusive license to use the Licensed Software only on the Designated Computer solely for the purpose of evaluating the Licensed Software. You may copy the Licensed Software into machine readable form for backup purposes in support of your use of the Licensed Software on the Designated Computer, limited to one copy. You may not reverse compile or disassemble the software. The Customer shall not modify or adapt the Licensed Software in any way. The Licensed Software, comprising proprietary trade secret information of NTI and/or its licensors, shall be held in confidence by you and protected from disclosure to third parties. No title to the intellectual property is transferred. You must reproduce and include all applicable copyright notices on any copy. Licensed Software may not be exported, distributed or used outside the United States or the country of your place of business where this package was originally shipped without the advanced written permission of NTI or its authorized affiliate.
2.2 NTI or NTI's licensors having a proprietary interest in the Licensed Software shall have the right to enforce such interests, including the right to terminate this Agreement in the event of a breach of its terms pertaining to such proprietary interests, without prejudice to any claim for damages or other claim in favor of NTI.
2.3 IF YOU TRANSFER POSSESSION OF ANY COPY OF THE LICENSED SOFTWARE TO ANOTHER PARTY WITHOUT WRITTEN CONSENT OF NTI, YOUR LICENSE IS AUTOMATICALLY TERMINATED. Any attempt otherwise to sublicense, assign or transfer any of the rights, duties or obligations hereunder is void.
2.4 If the Licensed Software is being acquired on behalf of the U.S. Government, Department of Defense, the Licensed Software is subject to "Restricted Rights", including the legend to be affixed to the software as set forth in DOD Supplement to the Federal Acquisition Regulations (DFAR's) paragraph 252 .227-7013(c)(1). If software is being acquired on behalf of any other U.S. Government entity, unit or agency, the Government's rights shall be as defined in paragraph 52.227-19(c)(2) of the Federal Acquisition Regulations (FAR's).
3.1 THE LICENSED SOFTWARE IS PROVIDED "AS IS", WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED, AS TO THE ADEQUACY OR ACCURACY OF THE LICENSED SOFTWARE. YOU UNDERSTAND THAT THE LICENSED SOFTWARE MAY CONTAIN DEFECTS OR ERRORS. NTI OR ITS CONTRIBUTORS DOES NOT WARRANT THAT THE LICENSED SOFTWARE WILL BE FREE FROM DEFECTS IN MATERIAL OR WORKMANSHIP, OR THAT OPERATION OF THE LICENSED SOFTWARE WILL BE ERROR FREE, OR THAT THE USE OF THE LICENSED SOFTWARE WILL NOT INFRINGE ANY PATENT, TRADE SECRET, OR COPYRIGHT OF ANY THIRD PARTY. NO IMPLIED OR STATUTORY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE SHALL APPLY.
3.2 It is understood that the provision of any Server Environment Monitoring System Management Software abilities within the Licensed Software does not obligate NTI to further provide such Server Environment Monitoring System Management Software abilities in subsequent production releases. Furthermore, the operation and user interfaces supported by the Licensed Software may change with subsequent production releases, and NTI assumes no liabilities for any resulting adoption to subsequent releases which may be required by you.
4. LIMITATION OF LIABILITY
4.1 IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE SHALL NTI OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PENAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFIT OR REVENUES, LOSS OF USE OF THE LICENSED SOFTWARE OR ANY PART THEREOF, OR ANY ASSOCIATED EQUIPMENT, DAMAGE TO ASSOCIATED EQUIPMENT, COST OF SEMSSITAL, COST OF SUBSTITUTE PRODUCTS, FACILITIES, SERVICES OR REPLACEMENT POWER, DOWN TIME COSTS, OR CLAIMS OF YOUR CUSTOMERS AND TRANSFEREES FOR SUCH DAMAGES EVEN IF NTI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
4.2 IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT OR WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NTI'S LIABILITY TO YOU FOR ANY LOSS OR DAMAGE ARISING OUT OF, OR RESULTING FROM THIS AGREEMENT, OR FROM ITS PERFORMANCE OR BREACH, OR FROM THE LICENSED SOFTWARE OR ANY PART THEREFORE, OR FROM ANY SERVICE FURNISHED HEREUNDER, EXCEED THE GREATER OF FIVE HUNDRED DOLLARS ($500.00) OR THE QUOTED CHARGES FOR THE LICENSED SOFTWARE. ANY SUCH LIABILITY SHALL TERMINATE ONE (1) YEAR AFTER THE DATE OF THIS AGREEMENT.
4.3 If NTI furnishes you with advice or other assistance which concerns Licensed Software or any portion thereof supplied hereunder or any system or equipment on which any such software may be installed and which is not required pursuant to this Agreement, the furnishing of such advice or assistance will not subject NTI to any liability, whether in contract, warranty, tort, (including negligence) or otherwise.
4.4 The products to be licensed or sold hereunder are not intended for use in any nuclear, chemical or weapons production facility or activity, or other activity where failure of the products could lead directly to death, personal injury or severe physical or environmental damage. If so used, NTI disclaims all liability for any damages arising as a result of the hazardous nature of the business in question, including but not limited to nuclear, chemical or environmental damage, injury or contamination, and you shall indemnify, hold harmless and defend NTI, its officers, directors, employees and agents against all such liability, whether based on contract, warranty, tort (including negligence), or any other legal theory, regardless of whether NTI had knowledge of the possibility of such damages.
5. TERM AND TERMINATION
5.1 You may terminate the license granted hereunder at any time by returning the Licensed Software together with all copies thereof and notifying NTI in writing that all use of the Licensed Software has ceased and that same has been returned.
5.2 NTI may terminate this Agreement or any license hereunder without prior notice if you fail to perform any obligation or undertaking to be performed by you under this Agreement or if you attempt to assign this Agreement without the prior written consent of NTI, or if NTI, in its sole discretion, notifies you it is terminating your use of the Licensed Software. Within twenty (20) days after any such termination of this Agreement, you shall certify in writing to NTI that all use of the Licensed Software has ceased, and that same has been returned or destroyed, in accordance with NTI's instructions.
5.3 Sections 4, 5 and 6 of this Agreement shall survive any expiration or termination and remain in effect. Termination of this Agreement or any license hereunder shall not relieve you of your obligation to pay any and all outstanding charges hereunder nor entitle you to any refund of such charges previously paid.
6.1 If you intend to export (or re export), directly or indirectly, the software products or technical information relating thereto supplied hereunder or any portion thereof, you should be aware that the prior authorization of the authorities of their or its country of origin may be required. In this case, you have the sole responsibility for securing any required export licenses in your own name.
7.1 This Agreement shall be governed by the laws of the State of Ohio, without regard to its conflict of law provisions. The provisions of the United Nations Convention on the International Sale of Goods shall not apply to this Agreement.
7.2 This Agreement is the complete and exclusive statement of the agreement between us and supersedes any proposal or prior agreement, oral or written, and any other communications between us relating to the subject matter of this Agreement. No change or amendment to this Agreement shall be effective unless agreed to by written instrument signed by a duly authorized representative of NTI.
8. Notification of Software Problems (i.e. Program bugs, errors, etc.)
8.1 From time to time this Company may inform Users of certain Software problems which this Company feels are especially important or critical. This Company will also provide detailed problem information to users who request it.
Should you have any questions concerning this Agreement, you may contact NTI by writing to:
NTI, 1275 Danner Drive, Aurora, Oh 44202-8054.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US AND SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN US RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT. FURTHER, NO CHANGE OR AMENDMENT TO THIS AGREEMENT SHALL BE EFFECTIVE UNLESS AGREED TO BY WRITTEN INSTRUMENT SIGNED BY A DULY AUTHORIZED REPRESENTATIVE OF NTI.
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