Free Trial Software License
IMPORTANT – PLEASE READ CAREFULLY BEFORE INSTALLING, DOWNLOADING AND/OR USING THE SOFTWARE.
THIS IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR A SINGLE ENTITY) AND NETFORT WHICH SETS OUT THE TERMS AND CONDITIONS GOVERNING YOUR USE OF THE SOFTWARE. IT CONTAINS IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS AS WELL AS WARRANTY AND LIABILITY LIMITATIONS ATTACHED TO THE SOFTWARE AND YOUR USE OF IT. BY INSTALLING, DOWNLOADING AND/OR USING THE SOFTWARE YOU ACCEPT AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY, ORGANIZATION OR ANY OTHER ENTITY, YOUR AGREEMENT TO THE TERMS AND CONDITIIONS SET FORTH HEREIN SHALL BE DEEMED TO BIND THAT COMPANY, ORGANIZATION OR ENTITY AND YOU REPRESENT AND WARRANT TO NETFORT THAT YOU HAVE ALL NECESSARY AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE COMPANY, ORGANIZATION OR ENTITY WHICH YOU PURPORT TO BIND.
IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS OR IF YOU DO NOT HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT, DO NOT INSTALL, DOWNLOAD AND/OR USE THE SOFTWARE.
TERMS: It is hereby agreed as follows:
1. DEFINITIONS AND INTERPRETATION.
1.1 DEFINITIONS. In this Agreement, the following expressions shall have the following meanings:
1.1.1 “Agreement” means this Software License Agreement, its recitals and schedules.
1.1.2 “Affiliate” means any corporation or entity controlling, controlled or under common control with, by or of a Party. For the purposes of this definition of Affiliate, “control” means the direct or indirect ownership of more than 50% of the issued voting shares, or other voting rights of the subject entity to elect directors, or if not meeting the preceding criteria, any corporation or entity owned or controlled by or owning or controlling at the maximum control or ownership right permitted in the country where such entity exists.
1.1.3 “Authorised Reseller” means a third party expressly authorized and appointed in writing by or for NetFort from time to time to market, sell, distribute and/or supply the Software to a given licensee and/or in a given territory or field of application.
1.1.4 “Business Day” means a day (other than a Saturday or Sunday) on which clearing banks are generally open for business in Ireland other than open for the purposes of twenty-four (24) hour on-line banking.
1.1.5 “Computer” means the hardware, if the hardware is a single computer system whether physical or virtual, or shall mean the computer system with which the hardware operates, if the hardware is a computer system component.
1.1.6 “Confidential Information” means confidential, proprietary or other commercially sensitive information obtained by one Party from the other Party pursuant to this Agreement which is expressly marked as confidential or which is manifestly of a confidential nature or which is confirmed in writing to be confidential within thirty (30) days of its disclosure, including, but not limited to, information relating to a Party’s business affairs, customers, products or services, product specifications, products in development, investigative studies and/or trials, research and development activities, reports and findings, consultations, methodologies, proposals, systems, programs, source and object code, processes, techniques, strategies, improvements, discoveries, innovations, inventions, trade secrets, technical drawings, know-how, formulae, concepts not reduced to material form, designs, plans and models, financial and marketing information and knowledge, business plans and information regarding the affairs of a Party generally, arrangements and agreements with third parties and/or any other information designated by the Disclosing Party to be confidential, whether given orally, in writing or in any other form and/or through any medium.
1.1.7 “Control” or “Controlled” means with respect to a particular item of information, material or Intellectual Property Right, that NetFort owns or has a license to such item of information, material or Intellectual Property Right and has the ability to grant access to and/or license such item for use as provided for herein.
1.1.8 “Disclosing Party” means a Party that discloses Confidential Information to the Receiving Party.
1.1.9 “Documentation” means the operational manual(s), user instruction manual(s), technical literature and/or supporting documentation supplied by NetFort, in printed or electronic form, in relation to the Software.
1.1.10 “Effective Date” means the earlier of (a) the date the Order for the Software is accepted by NetFort or (b) the date You install or first use the Software pursuant to such Order.
1.1.11 “Export Control Regulations” means any United Nations trade sanctions or Irish or EU or other applicable legislation or regulation, from time to time in force, which imposes arms embargoes or controls the export of goods, technology or software, including weapons of mass destruction and arms, military, paramilitary and security equipment and dual-use items (items design for civil use but which can be used for military purposes) and certain drugs and chemicals.
1.1.12 “Intellectual Property Rights” means patents, trade marks, service marks, registered designs, drawings, utility models, design rights, business ideas, concepts, inventions, discoveries, breeders’ rights, copyright (including the copyright in software in any code), database rights, know-how, trade secrets and other confidential information, technology, business or trade names, goodwill and all other rights of a similar or corresponding nature in any part of the world, whether registered or not capable of registration or not, and including all applications and the right to apply for any of the foregoing rights.
1.1.13 “Invoice” with regard to an Order, means the invoice issued by NetFort (and/or its Authorised Reseller) for the Software.
1.1.14 “License” shall mean the license defined in clause 2.1.
1.1.15 “License Fee” means the fee payable by You to NetFort for the Software as set out in the Invoice.
1.1.16 “Maintenance Release” means a release of the Software by NetFort which corrects faults, add functionality to or otherwise amends or updates the Software, but which does not constitute a New Version.
1.1.17 “Modification” means any Maintenance Release as may be issued by NetFort from time to time and/or in response to any valid warranty claim under this Agreement.
1.1.18 “NetFort” means NetFort Technologies Limited, a limited liability company incorporated in Ireland under number 357304 and having its registered office address at Clochmor House, Boleybeg, Barna, Co. Galway, Ireland, its Affiliates and/or assigns.
1.1.19 “New Version” any new version of the Software which from time to time is publicly marketed and offered for sale by NetFort (and/or its Authorised Resellers) in the ordinary course of business, being a version which contains such significant differences from the previous version as to be generally acceptable in the marketplace as constituting a new product.
1.1.20 “Open Source License” shall mean the license to an Open Source Program as is more fully described in clauses 8.3 and 8.4.
1.1.21 “Open Source Programs” shall mean the open source code software programs as are more fully described in clause 8.3.
1.1.22 “Order” means the order placed by You with NetFort (and/or its Authorised Resellers) for the Software, including any purchase order for the Software.
1.1.23 “Party” means NetFort or You and the expression “Parties” means both NetFort and You.
1.1.24 “Permitted Purpose” means the right to install, download, run and/or use the Software and/or Documentation (as the context requires) for Your internal purposes to the extent permitted by and in accordance with the Scope of Use and the terms of this Agreement.
1.1.25 “Receiving Party” means a Party that receives Confidential Information from the Disclosing Party.
1.1.26 “Scope of Use” means the scope of use of the Software under this Agreement as described in the Invoice, which shall include without limitation the permitted number of users, fees due and license duration.
1.1.27 “Software” means the software product (in object code form) as is more fully described in the Invoice including such updates, upgrades, enhancements (if any) on or to such software product and/or Modifications as may be supplied or made available to You by or for NetFort pursuant to this Agreement.
1.1.28 “Term” shall have the meaning defined in clause 2.2.
1.1.29 “Third Party Material” means any material, information, documentation, media, content, software or component which is owned and/or controlled by a third party and which is from time to time provided for use with, incorporated in and/or accessed through the Software.
1.1.30 “You” means the individual person who orders, installs and/or uses the Software, or the single entity or company on whose behalf the Software is ordered, installed and/or used, pursuant to this Agreement, as is more fully described in the Invoice; and the expression “Your” shall be construed accordingly.
1.1.31 “Warranty Period” shall mean the warranty period for the Software as defined in clause 11.1.
1.2 INTERPRETATION. In this Agreement:
1.2.1 the singular includes the plural and vice versa, and unless the context or subject otherwise requires, references to words in one gender include references to the other gender;
1.2.2 a person shall be construed as a reference to any individual, firm or company, corporation, governmental entity or agency of a state or any association or partnership (whether or not having separate legal personality) or two or more of the foregoing;
1.2.3 a person includes that person’s legal personal representative, permitted assigns and successors;
1.2.4 any agreement document or instrument is to the same as amended, novated, modified, supplemented or replaced from time to time;
1.2.5 ‘writing’ shall include a reference to any electronic mode of representing or reproducing words in visible form (other than and excluding text messages by telephone and/or public communications via social media);
1.2.6 unless the context otherwise requires, reference to a recital, article, paragraph, provision, clause or schedule is to a recital, article, paragraph, provision, clause or schedule of or to this Agreement;
1.2.7 the headings in this Agreement are inserted for convenience only and do not affect its construction;
1.2.8 the expressions “include”, “includes”, “including”, “in particular” and similar expressions shall be construed without limitation; and
1.2.9 references in this Agreement to any statute or statutory provision shall include any statute or statutory provision which amends, extends, consolidates or replaces the same and shall include any orders, regulations, instruments or other subordinate legislation made under the relevant statute.
2. GRANT OF LICENSE.
2.1 LICENSE. In consideration of the License Fee and the performance by You of Your obligations under this Agreement, NetFort hereby grants to You for the Term a non-exclusive, non-transferable, license to use the Software and Documentation, and all Intellectual Property Rights in and to the Software and Documentation, for the Permitted Purpose, subject to the terms and conditions of this Agreement (the “License”).
2.2 DURATION. This Agreement and the License granted herein shall commence on the Effective Date and continue in full force and effect for the period specified in the Scope of Use (whether perpetual or for a fixed term), unless and until terminated pursuant to clause 7 (Termination) (the “Term”).
2.3 SCOPE OF USE. Use of the Software other than as specified in the Scope of Use shall only be permitted with NetFort’s prior written consent. Any change requests to the Scope of Use, including for the avoidance of doubt changes to the territory, equipment or computer systems on which the Software is permitted to be used as referred to in the Scope of Use, must be referred to NetFort in advance for approval. You acknowledge that NetFort’s applicable upgrade or other additional fees may be payable in respect of any change to the Scope of Use as may be approved by NetFort from time to time and at its discretion.
2.4 SINGLE COMPUTER. Subject to the Scope of Use, You may use the Software for the Permitted Purpose on any single Computer and copy the Software for back-up and archival purposes only, provided at all times and in every case that all such copies contain all of the original Software’s proprietary and copyright notices.
2.5 USE. The Software is “in use” on a Computer when it is loaded into temporary memory or installed in permanent memory (Hard Drive or other storage device). You agree to use Your best efforts to prevent and protect the contents of the Software and Documentation from unauthorized use or disclosure.
3. LICENSE RESTRICTIONS.
3.1 RESTRICTIONS ON USE. Subject to the terms of this Agreement:
- You shall not remove, obscure, move or alter any copyright or proprietary notices, labels or trade marks on the Software or the Documentation and shall reproduce such notices, labels and trade marks on any copies of the Software or Documentation or part thereof it may make in the form in which they appear on the original. Copies of the Software are only permitted to be made for Your lawful use and You shall record the number and location of all copies of the Software and take all reasonable measures to prevent unauthorized copying.
- You have no right (and shall not permit any third party) to modify, translate, reverse engineer, decompile, disassemble (except to the extent that this restriction is expressly prohibited by law), reduce any part of the Software to human-readable form or create derivative works based upon the Software or Documentation. The interface information necessary to achieve interoperability of the Software with independently created computer programs may be provided by NetFort on request on payment of NetFort’s reasonable fee for such provision.
- You have no right to (and shall not permit any third party to) rent, lease, lend, distribute, market, sell or transfer the Software or Documentation.
- Save as otherwise provided, You shall not, and shall not permit any third party to, copy the Software or Documentation (other than for back-up or archival purposes).
- In relation to assignment and sub-licensing:
- You have no right to sub-license, or to assign the benefit or burden of this License in whole or in part, or to allow the Software to become the subject of any charge or lien or encumbrance without the prior written consent of NetFort.
- NetFort may sub-license, assign, charge or otherwise transfer any of its rights or obligations under this Agreement, provided it gives written notice to you of any sub-license, assignment, charge or other transfer.
3.2 ACCESS AND INSPECTION. At all reasonable times and upon reasonable advance notice, You shall permit NetFort (and/or its nominated representatives) to inspect and have access to any premises, and the computer equipment located there, at which the Software or Documentation are being used or kept and any related records, reports or information kept by or for You pursuant to this Agreement for the purposes of ensuring Your compliance with terms of the License and Your obligations under this Agreement.
3.3 NETFORT NAME. You may not delete, remove, obscure, move or alter any icon, image, trade mark or text that represents NetFort, its company name and/or products. All representations of the company name “NetFort” (whether in word or figurative form) must remain as originally distributed regardless of the presence or absence of a trade mark, copyright, or other intellectual property symbol or notice requirement.
3.4 EXPORT RESTRICTIONS. The Software (including encryption software) and Documentation (including any technical data) delivered to You under this Agreement are subject to certain Export Control Regulations. You shall abide by all Export Control Regulations applicable to the Software and Documentation and You shall not use, nor shall any of Your employees, directors, officers, consultants, contractors or representatives use, the Software and/or Documentation in any way which would directly or indirectly violate or compromise compliance with any Export Control Regulations. You confirm that the Software is solely for Your own use within the country of license and is not intended for re-export. You specifically agree not to export, re-export, or transfer the Software or Documentation to any person or entity who You know or have reason to know will utilize the Software or Documentation or any portion thereof in the design, development, production or use of nuclear, chemical or biological materials, facilities, or weapons or in any other way which would directly or indirectly violate or compromise compliance with any Export Control Regulations.
3.5 COMPLIANCE WITH APPLICABLE LAWS. You agree that You shall only use the Software and Documentation in a manner that complies with all applicable laws and regulations, including, but not limited to, all applicable data protection legislation, copyright and other intellectual property laws.
3.6 USE BY NETWORK MONITORING SERVICES PROVIDERS. NetFort strictly prohibits the use of the Software to sell or provide network monitoring services to users who are not individually licensed by NetFort except as described herein:
- If You represent a Web Hosting company (also referred to as managed service providers, internet service providers, or xSPs), You may use the Software to test and report the applications, servers and equipment resources You use to provide hosting services to Your customers;
- If You operate a data centre or provide infrastructure services, You may use the Software to test and report applications, servers and equipment whether such Resources are owned by You or Your customers.
If You are an IT consultant, IT solution provider, or facilities management provider, who deploy or maintains networks, security solutions, communications solutions, hardware, software components, upgrades, etc., You are required to individually license each of Your customers to the extent permitted by this Agreement or expressly agreed in writing by NetFort.
4. LICENSE FEE
4.1 PAYMENTS. You agree to pay all License Fees due to NetFort (or a duly Authorised Reseller as may be nominated by NetFort) monthly in advance on or before the first day of the month in question or as set out on the Invoice. Unless otherwise agreed by NetFort and specified on the Invoice, all amounts invoiced hereunder shall be due and payable in Euro within thirty (30) days of the date of invoice.
4.2 TAX. All sums payable under this Agreement are exclusive of Value Added Tax and any other sales or similar taxes, customs duties or similar charges, for which You shall be additionally liable (unless a valid exemption applies).
4.3 NON-CANCELLABLE FEES. The License Fees due under this Agreement are non- cancellable (except in respect of future License Fees to the extent this Agreement is terminated by NetFort pursuant to clause 7.2(i) without cause), and any and all License Fees paid under this Agreement shall be non-refundable.
4.4 NO SET-OFF OR DEDUCTIONS. All amounts payable under this Agreement shall be paid in full without set-off, deduction or other withholding of any amount that may be due to You. Should You be required by any law or regulation to make any deduction on account of tax or otherwise on any sum payable under this Agreement, the sum payable shall be increased by the amount of such tax to ensure that NetFort receives a sum equal to amount to be paid under this Agreement.
4.5 LATE PAYMENTS. If You fail to pay any amount as and when it falls due under this Agreement, NetFort, without prejudice to its other rights and remedies, reserves the right to claim interest under the European Communities Late Payments in Commercial Transactions Regulations 2012 (S.I. No. 580 of 2012).
5.1 Delivery of the Software and/or Documentation shall take place electronically and/or by such method and at such times as may be set out in the Invoice.
6. SUPPORT AND MAINTENANCE.
6.1. FOR PERPETUAL LICENSES ONLY. Where the License granted to You herein is perpetual in duration (and described as such in the Scope of Use), NetFort shall for the first twelve (12) month period of the currency of such License provide You with such technical support, upgrades and/or Modifications as may be reasonably necessary from time to time for the use of the Software and/or Documentation under this Agreement and at no additional charge to You. For clarity, this clause 6.1 shall not place any obligation on NetFort to develop, make available or deliver any New Version and the development, availability and/or delivery of any such New Version shall be at NetFort’s sole discretion and subject to such terms (including such license fees) as NetFort may prescribe from time to time.
6.2 OTHER SUPPORT AND MAINTENANCE. Except to the extent expressly provided herein, any other or additional support and maintenance in relation to the Software and/or Documentation shall be charged at NetFort’s usual rates and subject to agreement on terms.
7.1 BREACH; BANKRUPTCY. Either Party may terminate this Agreement at any time immediately upon notice in writing to the other if the other:
- commits a breach of this Agreement which it fails to remedy within thirty (30) days of receiving notice requiring it to do so;
- ceases to do business, becomes unable to pay its debts, becomes or is deemed insolvent, has a receiver, manager, administrator, administrative receiver or similar officer appointed in respect of the whole or any part of its assets or business, makes any composition or arrangement with its creditors, takes or suffers any similar action in consequence of debt or an order or resolution is made for its dissolution or liquidation, enters into liquidation whether compulsorily or voluntarily.
7.2 ADDITIONAL TERMINATION RIGHTS. NetFort may terminate this Agreement and the License granted herein (i) at any time upon giving thirty (30) days’ notice in writing to You and (ii) forthwith on notice in writing in the event of a merger, acquisition or other change of control.
7.3 EFFECT OF TERMINATION. Termination shall be without prejudice to the rights of either Party that have accrued prior to termination. Upon termination for any reason:
- all rights and licenses granted to You under this Agreement shall cease;
- You shall cease all activities authorised by this Agreement;
- You shall immediately pay to NetFort any and all sums due under this Agreement; and
- within thirty (30) days of such termination, You shall destroy or return to NetFort (at NetFort’s option) all copies of the Software then in Your possession, custody or control and, in the case of destruction, certify to NetFort that You have done so.
7.4 SURVIVAL. Terms of this Agreement which are either expressed so as to survive expiry or termination of this Agreement or from their nature or context it is contemplated that they are to survive expiration or termination, shall remain in full force and effect. For clarity, the provisions of clauses 1(Definitions and Interpretation), 7.5 (Notices), 8 (Intellectual Property Rights), 9 (Data Rights), 10 (Confidential Information), 11 (Warranty), 12 (Limitation of Liability), 13 (Infringement and Indemnity) and 15 (Miscellaneous) shall survive the expiration or termination of this Agreement.
7.5 NOTICES. Notices and other communications under or in connection with this Agreement may be given in writing by hand, by registered or ordinary pre-paid post or by e-mail. Any such notice, if so given, shall be deemed to have been served: (a) if sent by hand, when delivered; (b) if sent by post, one (1) Business Day after posting; and (c) if sent by e-mail, (i) upon transmission, delivery confirmed, or (ii) one (1) Business Day after transmission where no delivery failure report is received.
8. INTELLECTUAL PROPERTY RIGHTS.
8.1 OWNERSHIP. The Software and Documentation contains proprietary and confidential information that is protected by copyright and intellectual property laws and treaties. You expressly acknowledge that the Software and Documentation, and all Intellectual Property Rights in and to the Software and Documentation (including without limitation any images, photographs, animations, designs, drawings, logos, trade marks, trade names, trade secrets, inventions, video, audio, music, text, code and/or other copyright-protectable material incorporated into the Software, the accompanying printed materials, and any copies of the Software) are owned and/or Controlled by NetFort, its licensors and/or suppliers. You further acknowledge and agree that You shall have no rights in or to the Software and/or Documentation, or any Intellectual Property Rights in and to the Software and/or Documentation, other than the right to use them in accordance with the terms of this Agreement. For clarity, the NETFORT and LANGUARDIAN names and logos are trade marks of NetFort. You retain all ownership of and Intellectual Property Rights in and to Your data pursuant to clause 9.1.
8.2 THIRD PARTY MATERIAL. All title, rights and interest in and to Third Party Material (including any third party plug-in that may be provided for use with the Software) is the property of the respective owner of such Third Party Material and may be protected by applicable copyright or other intellectual property laws and treaties. NetFort makes no claim of ownership of and makes no warranties or representations of any kind in relation to such Third Party Material. NetFort shall have no liability whatsoever for Your use of or inability to use such Third Party Material. Except to the extent expressly provided herein, this Agreement gives You no rights to such Third Party Material, including use of the same.
8.3 OPEN SOURCE PROGRAMS. The Software and/or Third Party Material may from time to time include or contain open source code software programs (the “Open Source Programs”) and each Open Source Program is distributed under the terms and conditions of the open source license agreement (the “Open Source License”) applicable to such Open Source Program.
8.4 INFORMATION. Your use of such Open Source Programs and/or Third Party Material shall be governed by the terms and conditions of their respective licenses and nothing in this Agreement shall detract from, limit, supplement or supersede any term or condition of any such Open Source License or any license applicable to such Third Party Material.
8.5 RESERVED RIGHTS. All rights not expressly granted under this Agreement are reserved by NetFort, its licensors and suppliers.
9. DATA RIGHTS.
9.1 YOUR DATA. Subject to clause 8 (Intellectual Property Rights), NetFort agrees that the data and information generated solely by You and/or the Software from Your proprietary data and information shall be and remain Your sole property.
10. CONFIDENTIAL INFORMATION
10.1 OBLIGATIONS OF CONFIDENTIALITY AND NON-USE. The Receiving Party undertakes:
- to keep the Confidential Information confidential and to ensure that the Confidential Information is protected with security measures and a degree of care that would apply to its own confidential information of a similar type, but no less than reasonable care;
- not to disclose the Confidential Information supplied by the Disclosing Party to any third party, corporation or other person whatsoever without the written consent of the Disclosing Party; and
- not to copy, disseminate or use such Confidential Information except to the extent expressly authorised in writing by the Disclosing Party and/or by this Agreement.
10.2 EXCEPTIONS. The obligations of confidentiality and non-use set out under this clause 10 shall not apply to information which:
- is or comes into the public domain through no fault of the Receiving Party, its officers, employees, Affiliates, agents or contractors;
- is lawfully received by the Receiving Party from a third party free of any obligation of confidence at the time of its disclosure;
- is independently developed, as evidenced by their respective written records, by the Receiving Party, its officers, employees, Affiliates, agents or contractors;
- is required by law, by court or governmental order to be disclosed.
10.3 THESE TERMS. The existence and terms of this Agreement are confidential and may not be disclosed by either Party without the other Party’s prior written consent, such consent not to be unreasonably withheld.
10.4 DISCLOSURES REQUIRED BY LAW. If the Receiving Party is required by law, by court or governmental order to disclose any Confidential Information of the Disclosing Party, it shall provide notice to the Disclosing Party, to the greatest extent possible, prior to making such disclosure so as to allow the Disclosing Party time to undertake legal or other action, to prevent such disclosure or to otherwise obtain confidential treatment of such disclosure.
10.5 DURATION. The obligations under this clause 10 shall apply for the Term and shall survive the expiry or termination of this Agreement howsoever occasioned.
11.1. LIMITED WARRANTY. NetFort warrants that the Software will perform in all material respects in accordance with the functions described in the Documentation when operated properly in accordance with the Scope of Use and in the manner specified in the Documentation for a period of ninety (90) days from the date of its delivery to You or installation, whichever occurs first (the “Warranty Period”).
11.2 ACKNOWLEDGMENT. You acknowledge that You have assessed for Yourself the suitability of the Software for Your requirements. NetFort does not warrant that the Software and/or the Documentation will be suitable for such requirements or that any use will be uninterrupted or error free. You agree that in entering this Agreement, You did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in this Agreement.
11.3 EXCLUSIVE REMEDY. NetFort’s entire liability and Your exclusive remedy in the event of a valid warranty claim under clause 11.1 will be limited, at NetFort’s option and subject to the exclusions set out in clause 11.4, to (a) the Modification or replacement of the Software within a reasonable time and at no charge to You, or (b) if NetFort is unable to repair or replace the affected Software within a reasonable time, to the refund of the License Fees paid by You, provided that You shall have notified NetFort in writing (in reasonable detail) of the defect or non-conforming Software during the Warranty Period.
11.4 EXCLUSIONS. The warranties in clause 11.1 shall not apply to the extent that:
- You make or cause to be made any modifications to the Software without NetFort’s consent;
- the defect or fault results from You, or anyone acting with Your authority, having amended the Software or used it outside the Scope of Use or for a purpose other than the purpose or context for which it was originally designed;
- the Software is bundled with or used in combination with any software not supplied by NetFort;
- the Software is used in an application for which it was not intended; or
- the Software is used other than as permitted under this Agreement.
11.5 DISCLAIMER OF WARRANTIES. NETFORT DOES NOT WARRANT THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT THE USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. EXCEPT TO THE EXTENT EXPRESSLY PROVIDED HEREIN, THE SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS” WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND OF FITNESS FOR A PARTICULAR PURPOSE AND NETFORT EXPRESSLY DISCLAIMS AND EXCLUDES ALL SUCH WARRANTIES TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
12. LIMITATION OF LIABILITY.
12.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS OR LOST SAVINGS OR FOR LOSS OF, OR DAMAGE TO, DATA) HOWSOEVER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND/OR THE USE OF OR INABILITY TO USE THE SOFTWARE AND/OR DOCUMENTATION, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NETFORT’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR YOUR ORDER, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNT OF THE LICENSE FEE ACTUALLY PAID BY YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT THAT GIVES RISE TO SUCH CLAIM.
12.2 Nothing in this Agreement shall exclude or in any way limit a Party’s liability for fraud, or for death and personal injury caused by its negligence, or any other liability to the extent that it cannot be excluded or limited as a matter of law.
13. INFRINGEMENT AND INDEMNITY.
13.1 INFRINGEMENT. NetFort shall, at its sole option and expense, defend You and indemnify You against damages, liabilities, costs and expenses to the extent arising from any claim made by a third party that the Software and/or Documentation furnished by NetFort infringes its Intellectual Property Rights; provided that You:
- promptly notify NetFort in writing, not later than ten (10) Business Days after You receive notice of the claim (or sooner if required by applicable law);
- give NetFort sole control of the proceedings, defence and settlement negotiations; and
- cooperate with NetFort and provide such information, authority and assistance as NetFort may require to defend or settle the claim.
If NetFort is of the opinion that the Software and/or Documentation may infringe a third party’s Intellectual Property Rights, NetFort may at its option:
- procure for You the right to continue using the Software and/or Documentation free from any liability for such infringement;
- modify or replace the Software and/or Documentation so as to avoid the infringement but providing You with substantially the same functionality; or
- terminate this Agreement immediately on written notice in respect of the affected Software and/or Documentation.
NetFort shall have no obligation to defend or indemnify You under this clause 13.1 if the claim arises from and/or is based on any modification to the Software and/or Documentation made by You or any combination of the Software by You with third party software, material or equipment or any other use of the Software and/or Documentation outside the Scope of Use or any breach or attempted breach by You of the terms of this Agreement. This clause 13.1 states the entire obligation and liability of NetFort and Your sole remedy in respect of any infringement or alleged infringement of any Intellectual Property Rights arising from Your acquisition, possession and/or use of the Software and/or Documentation. All other obligations of NetFort in relation to infringement or alleged infringement of the Intellectual Property Rights of any person which but for this clause would have effect are hereby excluded.
13.2 INDEMNITY. To the maximum extent permitted by applicable law, You agree to indemnify and keep indemnified NetFort, its licensors and suppliers from and against any and all claims, liabilities, proceedings, costs, damages, losses or expenses arising out of or in connection with Your use of the Software and/or Documentation or Your violation of this Agreement, except to the extent that any such claim, liability, proceedings, costs, damage, loss or expense arises from NetFort’s breach of this Agreement, gross negligence or wilful misconduct.
14. FORCE MAJEURE.
Neither Party shall be liable for any delay or failure to perform its obligations) under this Agreement to the extent and for so long as such delay or failure results from circumstances beyond its reasonable control (each, an “event of force majeure”) provided that Party notifies the other within two (2) Business Days of becoming aware of such event. If any event of force majeure continues for a period exceeding two months, NetFort shall have a right to terminate this Agreement immediately on written notice to You. For the avoidance of doubt, nothing in this clause 14 shall excuse You from any payment obligations under this Agreement.
15.1 NO ASSIGNMENT. This Agreement and the License granted herein is personal to You. Except to the extent expressly permitted by law, You may not assign, mortgage, charge or otherwise transfer any of Your rights or obligations under this Agreement and/or the License, without the prior written consent of NetFort.
15.2 SEVERABILITY. All of the terms and provisions of this Agreement are distinct and severable and if any term or provision is ruled invalid, void or unenforceable, in whole or in part by any court, such term or provision shall be interpreted to be enforceable to the maximum extent possible under applicable law and the remaining provisions shall stay in full force and effect.
15.3 NO WAIVER. No failure or delay by a Party to exercise any right or remedy under this Agreement shall be construed or operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy preclude the further exercise of such right or remedy.
15.4 NO AGENCY. The relation between the Parties is that of independent contractors. You shall not act or describe Yourself as the agent of NetFort, nor shall You make or represent that You have the authority to make any commitments on behalf of NetFort.
15.5 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the Parties and supersedes all prior or contemporaneous communications, agreements and understandings, written or oral, with respect to the subject matter hereof. For clarify, this Agreement shall prevail over any inconsistent terms or conditions contained or referred to, in the Order, confirmation of Order, acceptance of a quotation, or specification or other document supplied by You, or implied by trade, custom, practice or course of dealing.
15.6 AMENDMENTS. This Agreement may not be modified except by an instrument in writing signed by a duly authorised representative of each Party.
15.7 LAW. This Agreement is governed by the laws of Ireland without regard to any conflict of laws provisions. The Parties hereby consent to the exclusive jurisdiction of the courts of Ireland but nothing in this Agreement shall limit NetFort’s right to seek injunctive or other equitable relief at any time from any court of competent jurisdiction to prevent or restrain (a) an infringement of its Intellectual Property Rights; (b) the violation of any obligation of confidentiality under this Agreement and/or (c) any other breach (or attempted breach) of this Agreement.
15.8 CLICK THROUGH AGREEMENT. This Agreement may be executed and delivered by electronic “click wrapped” or “click through” agreements (wherein You agree by accepting the Agreement online and installing, downloading and/or using the Software), and the Parties expressly agree that such “click through” execution and delivery will have the same force and effect as delivery of an original document with original signatures, and that each Party may use such “click through” execution as evidence of the execution and delivery of this Agreement by all Parties to the same extent that an original signature could be used.
Copyright © 2013 NetFort Technologies Limited. All Rights Reserved.
Revised: September 2013