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NOTICE TO USER: PLEASE READ THIS END-USER LICENSE AGREEMENT (THE “EULA”) CAREFULLY.
THIS EULA IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR A SINGLE ENTITY) AND NETWORK AUTOMATION, INC. AND ITS SUPPLIERS AND RESELLERS FOR THE NETWORK AUTOMATION, INC. SOFTWARE PRODUCT IDENTIFIED ABOVE, WHICH INCLUDES COMPUTER SOFTWARE AND MAY INCLUDE ASSOCIATED MEDIA, PRINTED MATERIALS AND “ONLINE” OR ELECTRONIC DOCUMENTATION.
THE PERSON OR ENTITY WHO HAS PURCHASED THE LICENSE (THE “LICENSEE”) FOR THE AUTOMATE 9 (THE “PROFESSIONAL EDITION”), OR AUTOMATE 9 (THE “PREMIUM EDITION”) (THE PROFESSIONAL EDITION AND THE PREMIUM EDITION ARE COLLECTIVELY HEREINAFTER REFERRED TO AS THE “SOFTWARE”) MUST CAREFULLY READ AND ACCEPT ALL OF THE TERMS OF THIS EULA BEFORE OPENING THIS PACKAGE OR INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE. BY OPENING THIS PACKAGE AND USING, COPYING, OR DISTRIBUTING ALL OR ANY PORTION OF THE SOFTWARE LICENSEE ACCEPTS ALL THE TERMS AND CONDITIONS OF THIS EULA, INCLUDING, BUT NOT LIMITED TO, THE PARTICULAR LIMITATIONS ON: USE OF THE SOFTWARE, TRANSFERABILITY, WARRANTY AND LIABILITY. THE LICENSEE AGREES THAT THIS EULA IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY A LICENSEE AND THIS EULA IS ENFORCEABLE AGAINST THE LICENSEE AND ANY LEGAL ENTITY THAT OBTAINED THE SOFTWARE AND ON WHOSE BEHALF IT IS USED. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, DO NOT INSTALL OR USE THE SOFTWARE PRODUCT.
ANY QUESTIONS CONCERNING THIS EULA SHOULD BE REFERRED TO: NETWORK AUTOMATION, INC. (THE “LICENSOR”), 654 S. WESTERN AVENUE, LOS ANGELES, CALIFORNIA 90005 – TELEPHONE: (213) 738-1700.
1. License.
(a) Licensor hereby grants, and Licensee hereby accepts, a nontransferable, non-exclusive, limited scope license to use the Software, subject to the conditions and for the period specified herein.
(b) Licensee may install a copy of the Software on a single computer. An additional license is required if Licensee installs another copy of the Software on another computer.
(c) Licensee agrees to use the software for its own internal purposes only.
(d) Licensee may move the Software to a different computer as long as the Software is permanently removed from the initial computer.
(f) Licensee agrees not to use, copy, or modify the Software or any copy, modification, or merged portion, in whole or in part, except as expressly provided for in this EULA.
(g) Licensee agrees not to sublicense, assign, or transfer the license granted by this Agreement or the Software except as expressly provided herein, and agrees that any attempt to do so in any way other than expressly provided herein shall be null and void. Nothing in this section 1(g) shall preclude an entity Licensee from assigning the license granted herein to a successor entity.
(h) Licensee agrees to install the Software on no more than the maximum number of devices authorized by the License Agreement count purchased, where device is defined either as: (a) a physical device such as a computer, PDA, or server, or (b) a virtual device, such as an operating environment that may be running concurrently with another operating environment on a single physical device (e.g., VMware*, Virtual PC*, Virtual Server*).
2. Method of Acceptance. Licensee agrees that by opening the package or installing, copying, or otherwise using the software, Licensee is accepting the following terms and conditions (as set forth in this EULA) for use of the Software. Licensee further agrees that if he or she does not agree with any of the following terms and conditions, he or she shall return the unused Software along with proof of purchase to the place of purchase within thirty (30) days of the purchase for a full refund of the licensee fee paid.
3. Proprietary Rights. The Software and any accompanying documentation is owned and copyrighted by Licensor and is protected by United States copyright and trademark laws. This License is not a sale of the original Software or any copy. Licensee owns only the magnetic or other tangible physical media on which the Software is originally or subsequently recorded or fixed and does not have any ownership interest in the Software, improvements, or modifications to the Software or any accompanying documentation.
4. Consent to Use of Data. Licensee agrees that Licensor and its affiliates may collect and use purely technical information gathered as part of the support services provided to Licensee, if any, related to the Software. Licensor may use this information solely to improve Licensor’s products or to provide customized services or technologies to Licensee and will not disclose this information in a form that personally identifies Licensee.
5. Upgrades. If the Software is labeled as an upgrade, Licensee must be properly licensed to use a product identified by Network Automation, Inc. as being eligible for the upgrade in order to use the Software. Software labeled as an upgrade replaces and/or supplements the product that formed the basis for Licensee’s eligibility for the upgrade. Licensee may use the resulting upgraded product only in accordance with the terms of this EULA. If the Software is an upgrade of a component of a package of software programs that Licensee licensed as a single product, the Software may be used and transferred only as part of that single product package and may not be separated for use on more than one computer.
6. Dual-Media Software. Licensee may receive the Software in more than one medium. Regardless of the type or size of medium Licensee receives, Licensee may use only one medium that is appropriate for Licensee’s single computer. Licensee may not use or install the other medium on another computer. Licensee may not loan, rent, lease, or otherwise transfer the other medium to another user, except as part of the permanent transfer (as provided above) of the Software.
7. Termination of License. Without prejudice to any other rights, Licensor may terminate this EULA if Licensee fails to comply with the terms and conditions of this EULA. In such event, Licensee must destroy all copies of the Software and all of its component parts.
8. Limited Warranty. Licensor warrants that the Software will perform substantially in accordance with the accompanying documentation and the media on which the Software is distributed is properly recorded and free from defects in materials and workmanship under normal use for a period of thirty (30) days from the date of original purchase. This Limited Warranty does not apply to Software that has been altered, damaged, abused, misapplied, or used other than in accordance with this License and any instructions and documentation that accompany the Software. Licensor`s entire liability and Licensee`s exclusive remedy will be that Licensor will repair or replace a defective media returned within the warranty period or will, at Licensors` option, refund the money Licensee paid for the Software provided that the Software is returned within the warranty period along with a copy of the original purchase receipt. Any replacement Software will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer. Licensor does not warrant that the functions contained in the Software will meet the Licensee`s requirements, or that the operation of the software will be uninterrupted or error-free, or that defects in the Software will be corrected. Furthermore, Licensor does not warrant or make any representations regarding the use or the results of the use of the Software or its documentation in terms of their correctness, accuracy, reliability, or otherwise. No oral or written information or advice given by Licensor or its authorized representative shall create a warranty or in any way increase the scope of this warranty. Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply. In those jurisdictions which do not allow the exclusion of implied warranties, the licensee has an implied warranty of condition, but ONLY as to defects discovered during the period of this Limited Warranty (thirty (30) days). Any defects discovered after the thirty (30) day period is NOT covered by any warranty of condition of any kind.
THE ABOVE WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. THIS WARRANTY GIVES THE LICENSEE SPECIFIC LEGAL RIGHTS. LICENSEE MAY HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE.
9. Limitation of Liability.
IN NO EVENT SHALL LICENSOR`S LIABILITY RELATED TO ANY OF THE SOFTWARE EXCEED THE LICENSE FEES ACTUALLY PAID BY LICENSEE FOR THE SOFTWARE. THE EXCLUSIVE REMEDY FOR BREACH OF THIS LIMITED WARRANTY SHALL BE, AT LICENSOR’S OPTION, IN ITS SOLE DISCRETION, EITHER A RETURN OF THE AMOUNT PAID (IF ANY) FOR THE SOFTWARE, OR REPAIR OR REPLACEMENT OF THE SOFTWARE. EXCEPT FOR A RETURN OF THE PURCHASE PRICE UNDER THE CIRCUMSTANCES PROVIDED UNDER THE LIMITED WARRANTY, NEITHER LICENSOR NOR ITS SUPPLIERS SHALL IN ANY EVENT BE LIABLE FOR ANY DAMAGES WHATSOEVER ARISING OUT OF OR RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, AND DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT, WARRANTY, OR ANY OTHER LEGAL OR EQUITABLE GROUNDS. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO LICENSEE. HOWEVER, IN NO EVENT SHALL LICENSOR`S LIABILITY EXCEED THE PURCHASE PRICE FOR THE SOFTWARE.
10. Export Restrictions. Licensee acknowledges that the Software is subject to U.S. export jurisdiction. Licensee agrees to comply with all applicable international and national laws that apply to the Software, including the U.S. Export Administration Regulations, as well as end-user, end-use, and destination restrictions issued by U.S. and other governments.
11. Additional Software/Services. This EULA applies to updates, supplements, add-on components, or Internet-based services components, of the Software that Licensor may provide to Licensee or make available to Licensee after the date Licensee obtains the initial copy of the Software, unless Licensor provides other terms along with the update, supplement, add-on component, or Internet-based services component.
12. No Modification. Licensee may not modify, adapt, translate or create derivative works based upon the Software. Licensee may not reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code of the Software except to the extent Licensee may be expressly permitted under applicable law.
13. Intellectual Property Ownership, Copyright Protection. The Software and any authorized copies that Licensee makes are the intellectual property of and are owned by Licensor and its suppliers. The structure, organization and code of the Software are the valuable trade secrets and confidential information of Licensor and its suppliers. The Software is protected by law, including without limitation the copyright laws of the United States and other countries, and by international treaty provisions. Except as expressly stated herein, this EULA does not grant Licensee any intellectual property rights in the Software and all rights not expressly granted are reserved by Licensor and its suppliers.
14. Notice to U.S. Government End Users. The Software and Documentation are "Commercial Items," 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 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. U.S. Government end users shall not be entitled to use, modify, reproduce, release, perform, display, or disclose commercial Computer Software or Commercial Computer Software Documentation except as specified herein. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights at 48 C.F.R. 52.227-19, as applicable. Unpublished-rights reserved under the copyright laws of the United States.
15. Governing Law. If Licensee acquired this Software in the United States, this EULA shall be construed according to, and the rights of the parties shall be governed by, the law of the State of California. If Licensee acquired this Software in any other country outside the United States, then local law may apply.
16. Entire Agreement; Severability. This EULA (including any addendum or amendment to this EULA which is included with the Software) is the entire agreement between Licensee and Licensor relating to the Software and the support services (if any) and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Software or any other subject matter covered by this EULA. If any provision of this EULA is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect. Notwithstanding anything to the contrary, in the event that the Software is purchased by Licensee through the execution of Licensor’s Software Licensing and Services Agreement (the “SLA”) and there is a conflict between the terms of this EULA and the SLA, the terms of the SLA shall govern.
17. Licensee’s Acknowledgment.
LICENSEE ACKNOWLEDGES THAT HE OR SHE HAS READ THIS EULA, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. LICENSEE FURTHER AGREES THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE EULA BETWEEN LICENSEE AND LICENSOR AND THAT IT SUPERSEDES ANY PRIOR AGREEMENT, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN LICENSEE AND NETWORK AUTOMATION, INC. RELATING TO THE SUBJECT MATTER OF THIS EULA.