PLEASE READ THIS AGREEMENT CAREFULLY. YOU MUST REVIEW AND EITHER ACCEPT OR REJECT THE TERMS OF THIS EULA BEFORE INSTALLING OR USING THE SOFTWARE. BY CLICKING THE “I ACCEPT” BUTTON, INSTALLING OR OTHERWISE USING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ ALL OF THE TERMS AND CONDITIONS OF THIS EULA, UNDERSTAND THEM, AND AGREE TO BE LEGALLY BOUND BY THEM. THIS AGREEMENT IS ENFORCEABLE AGAINST YOU AND ANY LEGAL ENTITY THAT OBTAINED THE SOFTWARE AND ON WHOSE BEHALF IT IS USED: FOR EXAMPLE, IF APPLICABLE, YOUR EMPLOYER. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE.
This software license agreement (the "Agreement") is made between Netwrix Corporation, ("Netwrix") and you ("Licensee"). If you are installing or using this Software on behalf of a company, you are representing that you have authority to download the Software, and to bind the company to these terms, and the company is the “Licensee”.
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 Netwrix proprietary 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". The term “Software” includes software being licensed on a trial basis, and software for which Licensee has agreed to a full license, as applicable. If you download the Software as an upgrade to an existing software product from Netwrix, you agree that the terms of this Agreement will apply to such software product, as upgraded and that these shall be the only terms and conditions applicable to such upgraded Software. The Software is provided in binary code only. Nothing in this Agreement entitles Licensee to receive source code for the Software.
1.2 Restrictions. Netwrix reserves all rights, implied or otherwise, which are not expressly granted to Licensee hereunder. This is a license only, and Netwrix retains all ownership of and all rights, title and interest in and to the Software, including, without limitation, all intellectual property rights, excluding only any third party components incorporated therein. Licensee may not modify the Software or any portion thereof in any manner. Licensee may not reverse engineer, decompile, disassemble, modify, adapt, rent, lease, loan or create derivative works based upon the Software or any part thereof. Except for managed service providers approved by Netwrix and expressly granted license rights by Netwrix pursuant to a separate agreement (an “Authorized MSP”), Licensee may not use the Software as a managed service provider, application service provider, software as a service basis, or in any commercial time share arrangement, or in any other activity intended to directly produce revenue without the prior written consent of Netwrix. 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. Licensee agrees not to install, use, or run the Software in any third party facility, or to enable others to do so. Licensee represents and warrants to Netwrix that Licensee shall not, and shall not permit any other person to: (a) use the Software for purposes of (i) benchmarking or competitive analysis of the Software, (ii) developing, using or providing a competing software product or service; or (iii) any other purpose that is to Netwrix’s detriment or commercial disadvantage; (b) copy the Software in whole or in part; and (c) use the Software in violation of any law, regulation or rule.
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 LICENSORS, ITS AFFILIATES, SUBSIDIARIES, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AFFILIATES BE LIABLE TO LICENSEE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY PUNITIVE, 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 FEES PAID BY LICENSEE TO NETWRIX DURING THE THREE MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR THE SOFTWARE OR ANY SERVICES (EXCLUDING APPLICABLE TAXES AND PAYMENT FEES) THAT CAUSED THE DAMAGES. TO THE EXTENT THAT APPLICABLE LAW DOES NOT PERMIT THE EXCLUSION OR LIMITATION OF LIABILITY AS SET FORTH HEREIN NETWRIX'S LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW. LICENSEE AGREES THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE SOFTWARE OR ANY SERVICES BROUGHT BY LICENSEE MUST BE FILED WITHIN NO LATER THAN SIX (6) MONTHS AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR SUCH CLAIM WILL BE FOREVER BARRED.
1.5 Nondisclosure. "Confidential Information" means the Software, source code, object code, trade secrets, know-how and any proprietary tools, proprietary knowledge or proprietary methodologies of Netwrix not generally available to the public, to which the Licensee may gain access or knowledge as a result of this Agreement. The Licensee shall keep such Confidential Information confidential, 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 Licensee shall promptly notify Netwrix of any known unauthorized use or disclosure of the Confidential Information and will cooperate with Netwrix in any litigation brought by Netwrix against third parties to protect its proprietary rights. If Licensee becomes a paying customer of Netwrix, Licensee agrees that Netwrix can disclose the fact that Licensee is a paying customer of Netwrix, including information identifying which Netwrix Software product Licensee licensed (as provided in Section 4.6 below).
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 written consent shall be null and void.
1.7 Injunctive Relief. Licensee hereby expressly agrees that a remedy at law for any breach or attempted breach of the provisions of this Agreement may be inadequate, and Netwrix, in addition to any other rights or remedies, shall be entitled to seek injunctive and other equitable relief in the event of any such breach or attempted breach without (i) having to post bond or other security to prevent a breach or continuing breach of this Agreement, or (ii) having to prove actual damages.
1.8 GOVERNMENT USERS. The Software is a “commercial item”, as that term is defined at 48 C.F.R. 2.101), consisting of “commercial computer software” and “commercial computer software documentation”, as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (or an equivalent provision, e.g., in supplements of various U.S. government agencies, as applicable), all U.S. Government users acquire the Software with only those rights set forth herein. Manufacturer is Netwrix Corporation, 300 Spectrum Center Drive, Suite 200, Irvine, CA 92618.
1.9 Survival. Sections 1.2, 1.4, 1.5, 1.10, 1.12 - 1.14, 1.16 and 4.4 shall survive termination of this Agreement for any reason whatsoever.
1.10 Warranties. THE LIMITED WARRANTIES AS DESCRIBED IN SECTION 4.3, AND SECTION 5.2 WHEN APPLICABLE, OF THIS AGREEMENT ARE THE ONLY WARRANTIES PROVIDED TO LICENSEES WHO HAVE PURCHASED A FULL LICENSE MADE BY NETWRIX AND ITS LICENSORS. OTHERWISE, NETWRIX AND ITS LICENSORS EXPRESSLY DISCLAIM ALL 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, ANY ACCOMPANYING WRITTEN MATERIALS, AND ANY MAINTENANCE OR OTHER SERVICES.
1.11 Termination. This Agreement, the license granted hereunder, and any obligation to provide Maintenance Services may be terminated (a) by mutual agreement of Netwrix and Licensee, (b) by Licensee, upon thirty (30) days prior written notice to Netwrix and return or destruction of all copies of the Software in Licensee's possession and control, and (c) by Netwrix, if Licensee 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, Licensee shall immediately cease all 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 Netwrix 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 WAIVER OF JURY TRIAL. LICENSEE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THE SOFTWARE, THE SERVICES OR THIS AGREEMENT.
1.13 General. This Agreement is governed by the laws of the State of Ohio without regard to its conflicts of laws. Licensee irrevocably agrees that any legal action or proceeding arising out of or relating to this Agreement brought by it will be brought and determined in the federal courts for the District of Ohio, or if there is no federal jurisdiction, by the state courts of Ohio, and Licensee hereby irrevocably agrees to submit to the exclusive jurisdiction of the aforesaid courts, with regard to any such action or proceeding arising out of or relating to this Agreement or the Software. The U.N. Convention of Contracts for the Sale of International Goods will not apply. 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. Netwrix will not be liable for any delay or failure of performance, and no delay or failure of performance will constitute a default or give rise to any liability for damages if such delay or failure is caused by causes beyond Netwrix's control, including, without limitation, acts of God, war, terrorism, and civil disturbance.
1.14 Indemnification. Licensee agrees to indemnify and hold harmless Netwrix, its licensors and their respective officers, directors, affiliates, employees, principals, shareholders and agents from and against any and all claims, causes of action, demands, losses, damages, costs and expenses of any type (including attorney’s fees) arising out of or in connection with any breach of this Agreement by Licensee, or any wrongful or negligent act or omission by Licensee or its officers, employees or agents.
1.15 Third Party Components. The Software is distributed with certain third party components licensed to Netwrix pursuant to “open source” licenses. Certain provisions of such licenses are required to be included in any distribution of such third party components. Licensee is agreeing to those terms set out in the text files accompanying the Software when Licensee uses the Software (such licenses are incorporated by reference). A copy of such terms is available from Netwrix prior to downloading the Software at the following URL:
Any such third party software is provided with the rights set forth in the applicable license terms, and is provided “AS IS” with no warranties. Such third party license terms do not apply to the Software as a whole, and do not apply to the proprietary portions of the Software owned by Netwrix.
1.16 This AGREEMENT constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements between the parties, whether written or oral, relating to the same subject matter. Prior course of dealings, usages of the trade, and verbal agreements not reduced to writing and signed by Netwrix, to the extent that they alter or supplement these terms, shall not be binding on Netwrix. Any purchase order or other document issued by Licensee is for administrative convenience only and shall not be binding upon Netwrix. Performance will not constitute acceptance by Netwrix of contrary or supplemental terms and conditions. Any amendment to this AGREEMENT shall be binding upon Netwrix only if executed by Netwrix.
The provisions of this Section 2 together with the provisions of Sections 1 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 twenty (20) days from the Software installation date ("Evaluation Period").
2.2 "AS-IS" EVALUATION Warranty. LICENSEE AND NETWRIX AGREE THAT THE SOFTWARE PROVIDED UNDER THIS SECTION 2 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.
The provisions of this Section 3 together with the provisions of Section 1 shall apply to Software downloaded for beta testing.
3.1 Beta License. Subject to the terms and conditions of this Agreement, Netwrix hereby grants to Licensee, and Licensee accepts from Netwrix, a limited, nontransferable, non-exclusive license to use the Software solely for the purpose of testing the Software internally and evaluating the Software for the purpose of providing Feedback to Netwrix. The Software is licensed, not sold to Licensee by Netwrix, for a maximum beta testing period of ninety (90) days from the Software installation date ("Beta Test Period").
3.2 Feedback. Licensee agrees to provide to Netwrix reasonable suggestions, comments and feedback regarding beta Software, including but not limited to usability, bug reports and test results, with respect to Software testing (collectively, “Feedback”). Licensee grants to Netwrix, under Licensee’s intellectual property and proprietary rights, the following worldwide, non-exclusive, perpetual, irrevocable, royalty free, fully paid up rights: to make, use, copy, modify, create derivative works of, publicly perform or display, import, broadcast, transmit, distribute, license, sublicense, offer to sell, and sell, rent, lease or lend copies of the Feedback as part of any Netwrix product, technology, service, specification or other documentation. Further, you warrant that your Feedback is not subject to license terms that will require, or claim to require, that any Netwrix product, technology, or service that incorporates any Feedback (or any intellectual property therein) be licensed to or from any third party on specified terms. Due to the nature of the development work, Netwrix provides no assurance that any specific errors or discrepancies in the Software will be corrected.
3.3 Acknowledgements and Additional Liability Limitation and Warranty Disclaimer. Licensee acknowledges that all Software designated as beta Software may contain bugs, may not operate properly or perform all intended functions, may interfere with the functioning of other software applications, and may cause errors, data loss or other problems, and may not be upgraded to a production version. Accordingly, Licensee acknowledges and agrees that Software designated as beta Software is not production ready and should not be used in a live production environment. Licensee acknowledges that use of beta Software is voluntary. LICENSEE AND NETWRIX AGREE THAT THE BETA SOFTWARE PROVIDED UNDER THIS SECTION 3 IS PROVIDED "AS IS" AND UNSUPPORTED, AND THAT NETWRIX MAKES NO WARRANTY AS TO THE BETA SOFTWARE, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
The provisions of this Section 4 together with the provisions of Sections 1 shall apply to Software licensed with no time limits.
4.1 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 non-exclusive, non-transferable and non-sublicensable right to use one copy of the Software; provided that (i) Authorized MSPs shall be entitled to sublicense the Software solely in the provision of their services in accordance with their separate license agreement with Netwrix, and (ii) this Agreement shall in no way limit or amend the terms of such separate license between Netwrix and the Authorized MSP even if such Authorized MSP must click through this Agreement in the course of making the Software available to its end users. This license consists of the right for Licensee to install, use, access, run, or otherwise interact with the Software for Licensee's own internal business operations, and in accordance with the documentation provided with the Software or otherwise made available to Licensee (the “Documentation”). Licensee may also make a reasonable number of additional copies of the Software solely for non-productive archival purposes, provided 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, and is not provided to any third party. The term of the license shall be perpetual or for the term of the applicable subscription period, based upon the selection of Licensee at the time of purchase and the fees paid by Licensee. The term of other than perpetual licenses begin on the date of the purchase order.
Software licensed for less than a perpetual license includes a locking mechanism that automatically will prevent Licensee's use of the Software following the expiration of the applicable license term. Licensee may not disrupt, disable or interfere with the locking mechanism, and may not use the Software following the expiration of the applicable license term unless Licensee purchases a renewal or new full license from Netwrix.
4.2 Maintenance Services. During any Maintenance Period and contingent upon Licensee having paid all applicable fees, Netwrix shall provide Licensee the Maintenance Services listed in this Section 4.2. The "Maintenance Period" is a twelve (12) month period, commencing on the date of payment of the applicable fees and ending twelve (12) months thereafter. Each Maintenance Period may be renewed in twelve (12) month periods by Licensee giving written renewal notice unless renewal has been cancelled by either party giving written cancellation notice. Netwrix reserves the right to increase the fees each renewal Maintenance Period. Netwrix may deny maintenance services if it has not received the applicable fees.
Maintenance Services consist of the following during any Maintenance Period:
4.3 Limited Software Warranty for Full License. Netwrix warrants that for a period of thirty (30) days from the date of initial delivery or download, (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 Software, as provided by Netwrix, will substantially conform to the specifications in the Documentation applicable to the Software (collectively, the “Software Warranties”).
THE SOFTWARE WARRANTIES ARE EXCLUSIVE AND IN LIEU OF, AND NETWRIX HEREBY DISCLAIMS, ALL OTHER WARRANTIES RELATED TO THE SOFTWARE, 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 Software 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.
4.4. Usage Verification.
A. 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 this Agreement. 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.
4.6. Licensee agrees that Netwrix can publicly advertise the fact that Licensee is a paying customer of the product that Licensee is using. Advertising may include, without limitation, (i) use of Licensee's name, logo, number of employees and other non-confidential information related to Licensee's use of Netwrix's products in connection with (ii) advertising via Internet, magazines, newspapers, TV, case studies, success stories, press releases, marketing materials, exhibits and other electronic and physical media.
The provisions of this Section 5 apply to any and all Implementation Services, as defined below.
5.1. Implementation Services. “Implementation Services” means any implementation assistance services provided to Licensee including, without limitation, a Jumpstart or Health Check. The term “Implementation Services” does not include Maintenance Services. Prior to commencing Implementation Services, Netwrix and Licensee will mutually agree to the scope of the Implementation Services in a Statement of Work signed by the Licensee.
5.2. Limited Implementation Services Warranty. Netwrix warrants that it will perform the Implementation Services: (i) in a professional, diligent, and technically correct manner; and (ii) in substantial conformance with the applicable services description stated at https://www.netwrix.com/professional_services.html (collectively, the “Implementation Services Warranties”). Licensee must report in writing any breach of the Implementation Services Warranties to Netwrix within thirty (30) days following the performance of the nonconforming Implementation Services, and Licensee’s exclusive remedy, and Netwrix’s sole obligation, for any breach of the Implementation Services Warranties, shall be for Netwrix to re-perform the nonconforming portion of the Implementation Services or, at Netwrix’s option, refund the fees paid for the nonconforming portion of the Implementation Services.
5.3. Implementation Services Term. Netwrix will commence and complete the Implementation Services within a reasonable time considering the complexity and circumstances of the Implementation Services (“Implementation Services Term”). During the Implementation Services Term, Licensee will make diligent efforts to schedule and complete the Implementation Services, including, without limitation, having the proper personnel, equipment, and environment available in a timely manner.
5.4. Completion. The Implementation Services will be considered fully delivered and completed upon the earlier of: (i) signature by Licensee acknowledging completion of the Implementation Services, (ii) five (5) attempts by Netwrix via email to contact Licensee, to which Licensee has been unresponsive, following completion of the Implementation Services in Netwrix’s reasonable discretion, or (iii) ten (10) business days following completion of the Implementation Services in Netwrix’s reasonable discretion.
5.5. Intellectual Property. Licensee acknowledges that all right, titile and interest in any intellectual property rights created as a part of the Implementation Services shall be owned by Netwrix. Notwithstanding the foregoing, Licensee retains any right, title, and interest in any Licensee confidential information shared with Netwrix as part of the Implementation Services.