NETSAS ENIGMA NMS SOFTWARE LICENSE AGREEMENT
Note: If you are a competitor in the network monitoring software field, you are not authorized to download, install, evaluate, or use this software for any purpose.
PLEASE READ THIS SOFTWARE LICENSE AGREEMENT CAREFULLY BEFORE DOWNLOADING OR USING THE SOFTWARE.
BY OPENING THE PACKAGE, DOWNLOADING THE PRODUCT, OR USING THE EQUIPMENT THAT CONTAINS THIS PRODUCT, YOU ARE CONSENTING TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, PLEASE STOP USING OR DOWNLOADING THE PRODUCT AND DESTORY ALL COPIES OF THIS SOFTWARE.
NETSAS PTY LTD, Inc. (“NETSAS”) and its suppliers grant to Customer (“Customer”) a nonexclusive and non-transferable license to use the NETSAS ENIGMA NMS software (“Software” or “Product”) in object code form solely on a single central processing unit owned or leased by Customer or otherwise embedded in equipment provided by NETSAS.
Customer may make one (1) archival copy of the Software provided Customer affixes to such copy all copyright, confidentiality, and proprietary notices that appear on the original.
EXCEPT AS EXPRESSLY AUTHORIZED ABOVE, CUSTOMER SHALL NOT: COPY, IN WHOLE OR IN PART, SOFTWARE OR DOCUMENTATION; MODIFY THE SOFTWARE; REVERSE COMPILE OR REVERSE ASSEMBLE ALL OR ANY PORTION OF THE SOFTWARE; OR RENT, LEASE, DISTRIBUTE, SELL, OR CREATE DERIVATIVE WORKS OF THE SOFTWARE.
Customer agrees that aspects of the licensed materials, including the specific design and structure of individual programs, database schema, constitute trade secrets and/or copyrighted material of NETSAS. Customer agrees not to disclose, provide, or otherwise make available such trade secrets or copyrighted material in any form to any third party without the prior written consent of NETSAS. Customer agrees to implement reasonable security measures to protect such trade secrets and copyrighted material. Title to Software and documentation shall remain solely with NETSAS.
LIMITED WARRANTY. This limited warranty extends only to Customer as the original licensee and to ENIGMA NMS Product only. If product is purchased as Software only, this limited warranty does not cover software components, which ENIGMA NMS Product relies on and which have been installed by Customer. They include Operating System (CentOS) and database engine (MySQL). If ENIGMA NMS has been purchased as appliance, all software components installed on appliance are covered by this agreement. This limited warranty explicitly requires that CentOS system updates are TURNED OFF as they can adversely affect the overall product functionality, stability and performance. In no event does NETSAS warrant that the Software is error free or that Customer will be able to operate the Software without problems or interruptions.
This warranty does not apply if the software (a) has been altered, except by NETSAS, (b) has not been installed, operated, repaired, or maintained in accordance with instructions supplied by NETSAS, (c) has been subjected to abnormal physical or electrical stress, misuse, negligence, or accident, or (d) is used in ultra hazardous activities.
DISCLAIMER. EXCEPT AS SPECIFIED IN THIS WARRANTY, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW.
IN NO EVENT WILL NETSAS OR ITS SUPPLIERS BE LIABLE FOR ANY LOST REVENUE, PROFIT, OR DATA, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE EVEN IF NETSAS OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event shall NETSAS’s or its suppliers’ liability to Customer, whether in contract, tort (including negligence), or otherwise, exceed the price paid by Customer. The foregoing limitations shall apply even if the above-stated warranty fails of its essential purpose. SOME STATES DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES.
The above warranty DOES NOT apply to any beta software, any software made available for testing or demonstration purposes, any temporary software modules or any software for which NETSAS does not receive a license fee. All such software products are provided AS IS without any warranty whatsoever.
This License is effective until terminated. Customer may terminate this License at any time by destroying all copies of Software including any documentation. This License will terminate immediately without notice from NETSAS if Customer fails to comply with any provision of this License. Upon termination, Customer must destroy all copies of Software.
This License shall be governed by and construed in accordance with the laws of the State of Queensland, Australia, as if performed wholly within the state and without giving effect to the principles of conflict of law. If any portion hereof is found to be void or unenforceable, the remaining provisions of this License shall remain in full force and effect. This License constitutes the entire License between the parties with respect to the use of the Software.
Manufacturer is AUSTRALIAN COMPANY: NETSAS PTY LTD ABN 63 075 696 249, GITC Q-3900.
ATTENTION: USE OF THE SOFTWARE IS SUBJECT TO THE NETSAS SOFTWARE EVALUATION AGREEMENT BELOW. YOU MUST REVIEW THE AGREEMENT AND EITHER ACCEPT OR NOT ACCEPT THE AGREEMENT. IF YOU DO NOT ACCEPT THE AGREEMENT, YOU MAY NOT USE THE SOFTWARE.
This Software Evaluation Agreement (the “Agreement”) is entered into between Australian company NETSAS PTY LTD (“NETSAS” ) and the recipient of the Software (“User”), as of the date of receipt of the software (the “Effective Date”).
- Products. NETSAS shall provide the object code version of software products and related documentation of the enclosed NETSAS ENIGMA NMS software (collectively the “Products”), for the sole purpose of enabling User to internally test, evaluate, and use the Products and test results.
- License. NETSAS hereby licenses the Products, royalty-free, to User for the limited purpose described in section 1 above. User may make one backup or archival copy of the software portion of the Products.
- Restrictions on Use. No intellectual property license, and no other license of any kind is granted except for the limited right to use the Products as provided in section 1 above. User shall not reverse engineer, disassemble, or decompile the software portion of the Products. Except as provided in section 1, User shall not use the Products to produce, market, or support its own products.
- Delivery. The software shall be provided in object code form by Internet download.
- Term. The term of this Agreement (the “Term”) is 60 days after User’s installation of the Products or until purchase of and payment for an appropriate license to use the Software, whichever is earlier. Unless User purchases and pays for an appropriate license to use the Software, upon the expiration of the Term or any earlier termination of this Agreement, User shall promptly remove all copies of the software from its machines and return all tangible materials to NETSAS.
- Precedence. This Agreement governs the use of the Software and takes precedence over the NETSAS Software License Terms included with this software, until the purchase of and payment for an appropriate license to use for the enclosed software. Upon purchase of and payment for an appropriate License to Use the Software, the NETSAS Software License Terms shall govern the use of this Software.
- Support. The Products shall be supported during the Term as follows: No support is provided for evaluation versions. Please contact your local NETSAS reseller or NETSAS sales representative regarding installation or technical questions.
- Disclaimer of Warranties. User accepts the Products “AS IS”, with any errors or defects. NETSAS MAKES NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND WITH RESPECT TO THE PRODUCTS, AND SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
- Limitation of Liability. NETSAS shall not be responsible for any loss or damage to User, its customers, or any third parties caused by the Products or by NETSAS’s performances of the Agreement. NETSAS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, ARISING OUT OF THE PERFORMANCE OF THIS AGREEMENT.
- Alterations by User. User shall not alter the Products except with the prior written consent of NETSAS. Any alterations made or suggested for the Products by User shall be the exclusive property of NETSAS, together with all intellectual property and other rights therein; User shall execute any documents, and otherwise cooperate with NETSAS at NETSAS’s expense, as necessary to enable NETSAS to protect such rights.
- Assignment. User shall not assign or otherwise transfer any rights or obligations under this Agreement. Any attempted assignment or transfer shall be voidable at NETSAS’s option.
- Termination. In the event that User breaches this Agreement, NETSAS may terminate this Agreement immediately upon written notice to User. Further, either party may terminate this Agreement without cause on five days prior written notice. The rights and responsibilities of the parties pursuant to sections 3, 8, 9, 10 and 11 above shall survive the expiration of the Term or earlier termination of this Agreement.
- Entire Agreement. This Agreement contains the entire agreement of the parties relating to the subject matter hereof. Any representation, promise, or condition not explicitly set forth in this Agreement shall not be binding on either party. Any amendments to this Agreement shall be in writing and signed by the authorized representatives of each party.