1. GRANT OF LICENSE. This Agreement grants You the following rights provided that You comply with all terms and conditions hereof.
1.1. License. Netrounds grants You a non-exclusive and non-transferable license, with no right to grant any sublicense, to install, utilize, access, activate, or view, solely during the period of time that the Software is licensed to You (“License Term”), (i) the Software, and (ii) each Update made available as part of Support & Maintenance Services contracted for such Software license. Each Update, if any, shall be subject to the same terms and conditions as the Software to which such Update pertains.
1.2. Open Source Software. The Software may use or include components licensed under an open source license approved by the Open Source Initiative (“Open Source Components”). These are available on an “as is” basis and subject to their individual license terms. Upon written request, Netrounds will identify the Open Source Components and the licenses that apply to them. To the extent there is conflict between the license terms covering the Open Source Components and this Agreement, the terms of such licenses will apply in lieu of the terms of this Agreement. To the extent the terms of the licenses applicable to Open-Source Components prohibit any of the restrictions in this Agreement with respect to such Open-Source Component, such restrictions will not apply to such Open-Source Component. To the extent the terms of the licenses applicable to Open-Source Components require Netrounds to make an offer to provide source code for those portions publicly available (such as the GNU General Public License or the GNU Lesser Public License) in connection with the Software, such offer is hereby made for a period of up to three years from the date of distribution, and You may exercise it by contacting email@example.com.
1.3. Standalone Third Party Software. If Netrounds makes third party software available for You to use without being embedded in Netrounds proprietary Software, such third party software is subject to the accompanying license(s), if any, of its respective owner(s).
1.4. Non-Commercial License. When You have purchased a non-production license including but not limited to trial, demonstration, education, or Your internal testing and lab purposes (“Non-commercial Purposes”), Netrounds grants You a non-exclusive and non-transferable, limited license to use, for Your Non-commercial Purposes, the Software and the associated Documentation. Non-Commercial Purpose licenses may not be used for business purposes or production use. In no event shall Netrounds have any obligation to continue or to renew any Software license (including, without limitation, the generation of any license key) for Software licensed for Non-commercial Purposes.
1.4.1. Should You, as agreed in writing between You and Netrounds or another Approved Source, install the Software for Non-commercial Purposes, the license for the Software will terminate two (2) months after You have downloaded the Software unless some other period is agreed in writing between Netrounds or such other Approved Source and You.
1.5. Documentation. Netrounds grants You a non-exclusive and non-transferable license, with no right to grant any sublicense, the right to copy, display and use the Documentation in connection with Your use of the Software. “Documentation” means written information published by Netrounds (whether contained in Netrounds issued user or technical manuals, training materials, specifications or otherwise) pertaining to the Software and made available by an Approved Source with the Software in any manner (including on CD-Rom or on-line).
1.6. Integration Work. Unless otherwise agreed in writing and signed by an authorized representative of Netrounds, any customer specific integration or solution created for You by Netrounds (i.e. report, form, dashboard, integration or other solution not affecting the source code of the Software), is licensed to You for the same License Term as the Software.
1.7. Use of the Software & General Limitations. You have the right to install the Software as defined in the Netrounds quotation and/or order acknowledgement issued by Netrounds or another Authorized Source.
1.7.1. As more specifically set forth in Article 6 (“Intellectual Property Rights and Title”), (a) this is a license, not a transfer of title, to the Software and Documentation, and Netrounds retains ownership of all copies of the Software and Documentation, and (b) You acknowledge that the Software and Documentation is copyright protected by Netrounds or its licensors and contains trade secrets of Netrounds or its suppliers or licensors, including but not limited to the specific internal design and structure of individual programs and associated interface information.
1.7.2. Except as otherwise expressly provided under this Agreement, You specifically agree not to:
22.214.171.124. make error corrections to or otherwise modify or adapt the Software or create derivative works based upon the Software, or permit third parties to do the same;
126.96.36.199. reverse engineer or decompile, decrypt, disassemble or otherwise reduce the Software to human-readable form, except to the extent that Netrounds is legally required to permit such specific activity pursuant to any applicable open source license. If the law requires Netrounds to provide interface information to You to adapt the Software, Netrounds, at its option, may either (a) provide the information to You subject to Your acceptance of non-disclosure or use limitation terms as Netrounds may reasonably require, or (b) perform that adaptation itself at a reasonable charge for services. If multiple Software products are licensed together as a single license, such Software is licensed to be used as a bundle and no component of the bundle may be used on a standalone basis or in combination with another standalone product;
188.8.131.52. Make copies of the Software, either physical or virtual, other than to the extent necessary solely for back-up purposes and re-installation;
184.108.40.206. publish any results of benchmark tests run on the Software without the prior written consent of Netrounds;
220.127.116.11. disclose, provide, or otherwise make available trade secrets contained within the Software and Documentation in any form to any third party without the prior written consent of Netrounds. You shall implement reasonable security measures to protect such trade secrets;
18.104.22.168. provide, disclose, divulge, make available to, sell, transfer, assign, sublease, rent, lend, license, sublicense, distribute or permit use of the Software or otherwise transfer in whole or in part the Software to another party without Netrounds’ prior written consent; or
22.214.171.124. create, develop, license, install, use, or deploy any third party software or services to circumvent, enable, modify or provide access, permissions or rights which violate the technical restrictions of the Software, any additional licensing terms provided by Netrounds via product documentation, notification and/or policy change.
2.1. Delivery. Except where You have elected to purchase the Software pre-installed on a Netrounds Appliance sold to You by an Approved Source, all Software will be delivered to you electronically. You may be required to submit a license request in order for Netrounds to authorize Your use of the Software with the quantity of Software applications You have purchased.
2.3. Notice to Users. You shall inform all users of the Software of the terms and conditions of this Agreement.
2.4. Audit Rights. Netrounds is entitled to examine Your use of the Software in order to audit the accuracy of the number of copies of Software used, the use of the Software, the number of streams or users licensed (if applicable) and compliance with copyright, confidentiality and similar restrictions contained in this Agreement. Any person performing such audit shall protect Your confidential information (in accordance with the terms of confidentiality set forth in the Terms and Conditions) and abide by Your reasonable security procedures. In the event an audit discloses non-compliance with this Agreement, You shall promptly pay to Netrounds the appropriate license fees, plus the reasonable cost of conducting the audit.
3. LICENSE FEE
3.1. Payment of License Fee. The right to install and make use of the Software is subject to Your payment of a license fee as agreed between You and Netrounds or between You and another Approved Source (the “License Fee”). The License Fee shall be invoiced upon delivery of the Software to You. The License Fee and any fees for Support & Maintenance Services, and applicable taxes, will be invoiced and paid in accordance with the Netrounds Terms and Conditions.
3.2. Payment in Advance. The License Fee and fees for Support & Maintenance Services shall be paid in advance of the License Term (as defined in section 1.1) or Support & Maintenance Services term.
4. Support & Maintenance Services
4.1. “Support & Maintenance Services” means responding to technical support problems with the Software, providing workarounds, error corrections, bug fixes and Updates to the Software and updates to the Documentation. Support & Maintenance Services for Software provided directly by Netrounds are subject to the terms and conditions of this Agreement, the Terms and Conditions, and applicable Maintenance & Support Service Documentation.
4.2. Subscription Software. If the Software is licensed on a subscription term basis, then during the subscription License Term, Netrounds shall provide Support & Maintenance Services for that Software at no additional charge.
4.3. Perpetual License Software. If the Software is licensed under a perpetual license term, Support & Maintenance Services are available for purchase separately and, if purchased, must be purchased for all licensed Software and at the same level of service. You must have an active Support & Maintenance Services contract to receive Updates.
4.5. Disclaimer. Netrounds does not give any warranties whatsoever that, after Your installation of such Update, that any integration of the Software with Your applications will continue to function as prior to such Update. Consequently, it is Your responsibility before implementing any such Update of the Software to test, validate and change the functionality in any integration in order to enable it to function after Updates of the Software are implemented.
5. TERM AND TERMINATION
5.1. Term. This Agreement enters into force when You download the Software, and shall continue in full force until terminated or until You discontinue all use of the Software and destroy all copies of the Software in Your possession and control (the “Term”).
5.2. Termination by You. You may terminate this Agreement by giving Netrounds written notice prior to the end of the then-current subscription license term or prior to the end of the term for Support & Maintenance Services for perpetual licenses. In the event that You do not provide such notice, and Netrounds does not terminate this Agreement pursuant to Article 5.3, this Agreement will automatically renew for successive terms equal in length to the original Term.
5.3. Termination by Netrounds. Netrounds has the right to terminate this Agreement by giving You at least thirty (30) days written notice prior to the termination.
5.3.1. Netrounds has the right to terminate Your rights under this Agreement immediately and without notice if You breach any provision of this Agreement and fail to cure such breach within ten (10) days following written notice from Netrounds.
5.4. Effect of Termination. In the event of termination, You must destroy all copies of the Software and Documentation in Your possession or control.
5.4.1. In addition, You must remove all copies of the Software, including all backup copies, from any servers and all devices and terminals on which it is installed. Before such removal You have the right to extract Your data and Your solutions from the Software database tables to another database or medium.
5.4.2. Termination of this Agreement for any reason will not affect the applicability of any of the terms of this Agreement with respect to Your past use of the Software. The terms of confidentiality, limitations of liability, disclaimers and restrictions of warranty set forth in this Agreement and in the Terms and Conditions shall survive termination of this Agreement.
6. INTELLECTUAL PROPERTY RIGHTS & TITLE
6.1. No Transfer of Title. Nothing in this Agreement transfers to You any title or ownership in or to the Software or Documentation or the underlying intellectual property.
6.2. Ownership. Except as expressly provided in this Agreement, all title and intellectual property rights in and to the Software and Documentation, and all related copyrights, trade secrets, patents, trademarks and any other intellectual and industrial property and proprietary rights, including registrations, applications, renewals and extensions of such rights and any copies You are permitted to make herein, are owned by Netrounds or its suppliers.
6.3. Confidential Information. Confidential Information disclosed by Netrounds or by You in furtherance of this Agreement will be governed by the Terms & Conditions.
7. LIMITED WARRANTY
7.1. Warranty. Netrounds warrants that commencing upon the Warranty Start Date and continuing for a period of ninety (90) days the Software will function in all material respects in accordance with the Documentation (the “Limited Warranty”). You must notify Netrounds within 90 days of the Warranty Start Date of a defect in the Software covered by this warranty.
7.2. The “Warranty Start Date” will be a) for Software pre-installed on the Netrounds Appliance, the date the Netrounds Appliance is shipped to You (in accordance with the terms of shipment agreed by You and an Approved Source); b) for all other Software available electronically, the date the Software is available for download as indicated in the email notification confirming availability of the Software for download or confirmation from the Netrounds Control Center that the Software is available for Your download.
7.3. Applicability. This Limited Warranty extends only to the Software purchased from an Approved Source by You and provided that You are the first registered end user. Neither these remedies nor any Support & Maintenance Services offered by Netrounds are available without proof of purchase from Netrounds directly or another Approved Source.
7.4. Disclaimer. Except for the foregoing, the Software is provided “AS IS” and no other warranties are expressed or implied, including but not limited to any implied warranties of merchantability or fitness for a particular purpose. Netrounds does not warrant the Software or any portion thereof is error free. In no event does Netrounds warrant that the Software is error free or that You will be able to operate the Software without problems or interruptions. The Limited Warranty set forth in Article 7 is the only express warranty made to You and is provided in lieu of any other express warranties (if any) created by any documentation or packaging or otherwise. Except for the Limited Warranty and to the maximum extent permitted by applicable law, Netrounds and its partners provide the Software on an as is basis with all faults and hereby disclaims all other warranties and conditions, either express, implied or statutory, including, but not limited to, any (if any) implied warranties or conditions of merchantability, of fitness for a particular purpose, of lack of viruses, of accuracy or completeness of responses, of results, and of lack of negligence or lack of workmanlike effort, all with regard to the Software and the provision of or failure to provide Support services. Further, there is no warranty or condition of title or non-infringement with regard to the Software.
7.5. Exclusion. Netrounds shall not be responsible for any third party’s unauthorized access to or alteration of any of your transmissions or data, any material or data sent or received using the Software or the Netrounds Control Center, any interruption, defect, delay in operation or transmission, computer virus, communication line failure, destruction, or use of record. This Limited Warranty does not apply if the Software or any other equipment upon which the Software is authorized to be used (i) has been altered, except by Netrounds or its authorized representative, (ii) has not been installed, operated, repaired, or maintained in accordance with Documentation, (iii) has been subjected to abnormal physical or electrical stress, abnormal environmental conditions, misuse, negligence, or accident; or (iv) is licensed for beta, evaluation, testing or demonstration purposes.
7.5.1. In addition, due to the continual development of new techniques for intruding upon and attacking networks, Netrounds does not warrant that the Software or any equipment, system or network on which the Software is used will be free of vulnerability to intrusion or attack.
7.6. No Warranty for Non-Commercial Purposes. To the fullest extent not prohibited by law, Software licensed for any Non-commercial Purpose is furnished “AS IS” WITH ALL FAULTS AND WITHOUT EXPRESS OR IMPLIED WARRANTIES, CONDITIONS, OR REMEDIES. The Software warranty also does not apply to (i) any temporary Software modules; (ii) any Software that Netrounds solely provides on an “AS IS” basis, i.e., for the avoidance of doubt, without the Limited Warranty; (iii) any Software for which an Approved Source does not receive a License Fee; and (iv) Software supplied by any third party which is not an Approved Source.
7.7. Exclusive Remedy. Your sole and exclusive remedy and the entire liability of Netrounds and its suppliers under this Limited Warranty will be (i) replacement of defective media and/or (ii) at Netrounds’ option, repair or replacement of the Software. These warranty remedies are subject to the condition that any error or defect constituting a breach of this Limited Warranty is reported to the Approved Source supplying the Software to You within the applicable warranty period.
8. Limitation of LIABILITY
8.1. Limitations. NETROUNDS’ LIABILITY ARISING OUT OF THESE TERMS AND CONDITIONS AND/OR LICENSING OF THE SOFTWARE SHALL BE LIMITED TO THE GREATER OF (i) $100,000 OR (ii) THE AMOUNTS PAID AND PAYABLE BY THE CUSTOMER FOR THE LICENSES TO THE SOFTWARE FOR THE TWELVE (12) MONTH PERIOD PRIOR TO THE OCCURRENCE OF THE EVENT(S) WHICH GAVE RISE TO SUCH LIABILITY, UP TO A MAXIMUM OF $2,000,000 IN AGGREGATE ARISING OUT OF THIS AGREEMENT. IN NO EVENT SHALL NETROUNDS HAVE ANY LIABILITY FOR ANY LOST PROFITS, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THESE TERMS AND CONDITIONS, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM THE USE OF SOFTWARE LICENSED HEREUNDER, OR THE FAILURE OF THE SOFTWARE TO PERFORM, OR FOR ANY OTHER REASON. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
8.2. Cumulative. This limitation of liability for Software is cumulative and not per incident (i.e. the existence of two or more claims will not enlarge this limit).
8.3. Subject to Applicable Law. Nothing in this Agreement shall limit the liability of Netrounds to You which cannot be excluded under applicable law.
8.4. Reasonable Allocation of Risk. You acknowledge and agree that Netrounds has set its prices and entered into this Agreement in reliance upon the Disclaimers of Warranty and the Limitations of Liability set forth herein, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the parties.
9.1. Netrounds’ Obligations. Netrounds shall indemnify and defend any suit brought against You to the extent that it is based upon a claim that Software sold to You infringes any third-party United States patent, copyright, trademark, or trade secret (“IP Claims”) and will pay all damages and costs that a court finally awards against You as a result of such claim; provided, that You: (a) within thirty (30) days of becoming aware of such claim: (i) gives Netrounds written notice of such claim, and (ii) furnishes Netrounds with a copy of each communication, notice or other document relating to the claim; (b) gives Netrounds complete control of the defense and settlement of such claim; and (c) gives all reasonable information and assistance in the defense or settlement of such claim at Your expense.
9.2. Remedy. Should the Software become, or in Netrounds’ opinion, likely become the subject of an IP Claim, Netrounds, at its option, may either: (a) procure for You the right to continue using the Software, or (b) replace or modify the Software to make it non-infringing provided material functionality is maintained. If, in Netrounds’ sole opinion, neither of the foregoing alternatives is commercially reasonable, Netrounds will grant You a refund of the purchase price of the relevant Software depreciated on a five-year straight-line basis provided that You, at Netrounds’ option, either returns the Software to Netrounds or certifies destruction of the Software.
9.3. Exclusions. Netrounds shall have no obligation or liability from and You shall indemnify Netrounds against, any claim of infringement which is based, in whole or in part, upon (a) the combination, operation or use of the Software with any hardware, software or service supplied by a party other than Netrounds; (b) any alteration or modification of the Software which is not pre-approved by Netrounds in writing; (c) any non-Netrounds branded hardware, software, or service; (d) any specifications, designs or instructions provided to Netrounds by or on behalf of You; (e) Your failure to promptly implement an update or modification to the Software (e.g., install a Supported Release) provided by Netrounds; or (f) use of the Software in a manner other than which it was designed or in a manner other than as specified by Netrounds. Netrounds shall not be obligated or responsible for any settlement entered into or damages arising from admissions by You without Netrounds’ prior written consent.
9.4. THE INFRINGEMENT INDEMNITY SET FORTH IN THIS SECTION STATES NETROUNDS’ ENTIRE LIABILITY AND OBLIGATION AND YOUR SOLE REMEDY FOR ANY CLAIM OF INFRINGEMENT OF THIRD PARTY PATENT, COPYRIGHT, TRADEMARK, TRADE SECRET.
10.1. Modifications. Netrounds has the right to modify this Agreement at any time by posting the changes to the terms and conditions page of its website. Netrounds may also notify You by sending You an e-mail that either (i) specifies the changes in the e-mail, or (ii) links to Netrounds ́ website that specifies the changes, and the change(s) will become effective in accordance and in the timeframe described in that e-mail or on the website. You are obligated to keep Your e-mail address correct and current by updating it by sending an email to firstname.lastname@example.org and acknowledge that this is the method of communication that Netrounds will use for this notification purpose. Failure to keep Your e-mail address correct and current may result in email not reaching You, but You will still be bound by any changes if You continue to use the Software.
10.2. Back-up. You are solely responsible for, and Netrounds strongly recommends, maintaining appropriate back-ups of the content and data that You access or store through the Software.
10.3. How to Contact Netrounds. Should You have any questions concerning this Agreement or want to contact Netrounds for any reason, see contact details on Netrounds ́ website: www.netrounds.com.
10.4. No Waiver. No waiver of any of the provisions of this Agreement is binding unless it is in writing and signed by both parties. The failure of either party to insist on the strict enforcement of any provision of this Agreement does not constitute a waiver of any provision and all terms shall remain in full force and effect.
10.5. Binding Effect. This Agreement will be binding upon and inure to the benefit of the parties, and their successors and assigns; provided, however, that You may not assign or otherwise transfer this Agreement, the Software or any of Your interest herein without the prior, express written consent thereto by Netrounds. Netrounds may assign its rights and obligations set forth in this Agreement to another person or entity. Further, Netrounds may designate any of its affiliates to invoice any portion of the License Fee without assigning any other rights under this Agreement, including the right to the Software, to such affiliate.
10.6. Severability. No provision of this Agreement which may be deemed illegal, invalid or unenforceable will in any way invalidate any other provisions of this Agreement, all of which will remain in full force and effect.
10.7. Entire Agreement. This Agreement constitutes the entire understanding of the parties with respect to the license of the Software and Documentation. Save for as provided under Article 10.1 above, this Agreement may not be modified, changed, altered or amended except by an express written agreement signed by duly authorized representatives of the parties hereto.
10.8. Headings. The Article numbers and captions appearing in this Agreement are inserted only as a matter of convenience and are in no way intended to define, limit, construe or describe the scope or intent of such sections of this Agreement, or in any way affect this Agreement.
10.9. Compliance with Law etc. You will, at Your own expense, operate in full compliance with all laws, rules and regulations applicable to, and maintain in force all licenses and permits required for, Your performance under this Agreement. Netrounds shall be under no obligation to consummate any transaction it believes is in violation of this Article. In the event of any breach of Your obligations of this Article, Netrounds is entitled to terminate this Agreement with immediate effect.
10.10. Export Controls. You shall not re-export or transfer in country the Software or any portion of it, or any non-published materials or information furnished in connection with the Software or with Support & Maintenance Services without first obtaining all licenses, permits and authorizations under United States and any other applicable laws and regulations that export, re-export, transfer in country, use or importation of the Software. Without limiting the foregoing, You warrant, represent and agree that You do not intend and You will not (i) transport, deliver or transmit the Software to, or use the software in Cuba, Iran, North Korea, Sudan, Syria or the Crimean region; (iii) grant access to any Software to another person, entity or organization located in Cuba, Iran, North Korea, Sudan, Syria or the Crimean region; or (iv) transport, deliver or transmit the Software to a Sanctioned Party, as defined below (or grant any such Sanctioned Party access to the Software).
10.10.1. As used herein, “Sanctioned Party” means a party identified on the US Bureau of Industry and Security (BIS) Entity List, Denied Persons List, Unverified List or the US Office of Foreign Asset Control (OFAC) Specially Designated Nationals list (“SDN List”) (or a party 50% or more controlled by anyone such SDN List), or any other party on any component list of the Comprehensive Screening List (https://www.export.gov/article?id=Consolidated-Screening-List ).
10.10.2. You agree to provide Netrounds with information, support documents, and assistance as may reasonably be required by Netrounds in order for Netrounds to comply with law in accordance with Article 10.10.1 and/or in connection with securing authorizations or licenses.
10.11. Force Majeure. If Netrounds is prevented from performing or is unable to perform any of its obligations under this Agreement due to causes beyond the reasonable control of Netrounds, including fire, casualty, flood, war, terrorism, strike, lockout, riot, pandemic, or insurrection, then Netrounds’ performance will be excused.
11. DISPUTES AND GOVERNING LAW
11.1. Governing Law. This Agreement shall be exclusively interpreted and governed by the laws of the State of California without reference to conflict of law principles. Netrounds and You specifically agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply to this Agreement.
11.2. Venue. For any disputes arising out of or in connection with this Agreement, Netrounds and You consent to the personal and exclusive jurisdiction of, and venue in, the state and federal courts within Santa Clara County, California, except that Netrounds may seek equitable relief in any court of competent jurisdiction to protect its Confidential Information from misappropriation or disclosure by You. If the jurisdiction that You are incorporated in will not recognize and enforce the judgment of a California court, You agree that any controversy or claim arising out of or relating to this Agreement, or a breach thereof, shall be determined by arbitration administered by the International Centre for Dispute Resolution in accordance with its International Arbitration Rules. The number of arbitrators shall be three, the place of arbitration shall be Santa Clara County, California, U.S.A., and the language of the arbitration shall be English. Any award of the arbitral tribunal shall be final and binding on the Netrounds and You. The arbitral award may be enforced in any court of competent jurisdiction. Nothing in this clause shall preclude a Netrounds or You from seeking interim equitable relief or orders for interim evidence preservation in any court of competent jurisdiction to prevent irreparable injury to a claim, or to Netrounds in the event of an actual or possible breach of confidentiality, intellectual property, or proprietary rights provisions in this Agreement. Any such application to a court shall not be considered demonstrating an intention to act inconsistently in any way with the agreement to settle disputes by arbitration in accordance with the preceding clause.