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NetFort End User License Agreement – Free Software

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 EULA. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, DO NOT INSTALL, DOWNLOAD AND/OR USE ANY OF THE SOFTWARE.

TERMS:

1. DEFINITIONS.

1.1 “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.

1.2 “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.

1.3 “Effective Date” means the date that You install the Software.

1.4 “EULA” means this End User License Agreement and any valid amendments thereto.

1.5 “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.

1.6 “License” shall mean the license defined in clause 2.1.

1.7 “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 assigns.

1.8 “Open Source License” shall mean the license to an Open Source Program as is more fully described in clauses 5.3 and 5.4.

1.9 “Open Source Programs” shall mean the open source code software programs as are more fully described in clause 5.3.

1.10 “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 only, with no right to grant sub-licenses and subject to the provisions of clause 3 (License Restrictions).

1.11 “Software” means the software product (in object code form), supplied or made available to You by NetFort pursuant to this EULA, together with such updates, upgrades, modifications or enhancements (if any) on or to such software product as may be supplied or made available from time to time by NetFort, at NetFort’s sole discretion.

1.12 “Term” shall have the meaning defined in clause 2.2.

1.13 “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.

1.13 “You” means the individual person who installs and/or uses the Software, or the single entity or company on whose behalf the Software is installed and/or used, pursuant to this EULA; and the expression “Your” shall be construed accordingly

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2. GRANT OF LICENSE.

2.1 LICENSE. Subject to the terms of this EULA, NetFort hereby grants to You for the Term a non-exclusive, royalty-free, non-transferable, personal license to use the Software and Documentation, and all intellectual property rights in and to the Software and Documentation, for the Permitted Purpose (the “License”).

2.2 DURATION. This EULA and the License granted herein shall commence on the Effective Date and continue in full force and effect unless and until terminated pursuant to clause 4 (Termination) (the “Term”).

2.3 SINGLE COMPUTER. 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 any and all such copies contain all of the original Software’s proprietary and copyright notices.

2.4 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 PROHIBITED USE. You may not: (i) use the Software and/or Documentation for any purpose other than the Permitted Purpose; (ii) modify, translate, reverse engineer, decompile, disassemble (except to the extent that this restriction is expressly prohibited by law) or create derivative works based upon the Software or Documentation; (iii) copy the Software or Documentation (except for back-up or archival purposes); (iv) rent, lease, lend, distribute, market, sell or transfer the Software or Documentation; or (v) remove, obscure, move or alter any proprietary or copyright notices, labels or trade marks on the Software or Documentation.

3.2 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.

3.3 EXPORT RESTRICTIONS. The Software (including encryption software) and Documentation (including any technical data) delivered to You under this EULA 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 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.

3.4 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.

3.5 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: 1. 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; or 2. 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 EULA or expressly agreed in writing by NetFort.

4. TERMINATION.

4.1 FOR NON-COMPLIANCE. Without prejudice to its rights and remedies, NetFort may terminate this EULA, and the License granted herein, if You fail to comply with any term or condition of this EULA. In the event of such termination, You must return, uninstall or destroy all copies of the Software and Documentation, at NetFort’s option and instruction.

4.2 ADDITIONAL TERMINATION RIGHTS. NetFort may terminate this EULA 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.

4.3 EFFECT OF EXPIRATION OR TERMINATION. Upon the expiration or termination of this EULA, all rights and licenses granted to You shall immediately terminate and You shall immediately cease using the Software and Documentation. Termination shall be without prejudice to the rights of either party that have accrued prior to termination. Terms of this EULA which are either expressed so as to survive expiry or termination of this EULA 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 5 (Intellectual Property Rights), 7 (No Warranty), 8 (Limitation of Liability), 9 (Indemnity) and 10 (Miscellaneous), shall survive the expiration or termination of this EULA.

4.4 NOTICES. Notices and other communications under or in connection with this EULA 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.

5. INTELLECTUAL PROPERTY RIGHTS.

5.1 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 EULA. For clarity, the NETFORT and LANGUARDIAN names and logos are trade marks of NetFort.

5.2 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 EULA gives You no rights to such Third Party Material, including use of the same.

5.3 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.

5.4 INFORMATION. The relevant Open Source Licenses, and the licenses applicable to the Third Party Material, can be located at http://www.netfort.com/support/third-party-software. 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 EULA 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.

5.5 RESERVED RIGHTS. All rights not expressly granted under this EULA are reserved by NetFort, its licensors and suppliers.

6. DATA RIGHTS.

6.1 YOUR DATA. Subject to clause 5 (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.

6.2 CONSENT TO COLLECT AND USE DATA. You agree that NetFort may collect, track and use non-personally identifiable information about You, including but not limited to Your IP address, the type of hardware You use, and the type of browser You employ, to assist with the necessary operation and function of the Software. NetFort reserves the right to compile, save, and use within the scope of NetFort activities and to analyse any and all of Your data (registration data and use history). NetFort’s use of any such data shall be for internal purposes only, including without limitation for the purposes of responding to Your requests for information, for contacting You, or providing You maintenance and support, as applicable. NetFort may provide aggregated statistics about Your use of the Software to third parties, but such information will be aggregated so that it does not identify a particular individual or company. For more information about NetFort’s privacy policies and practices, please refer to our Privacy Policy.

7. NO WARRANTY.

YOUR USE OF THE SOFTWARE IS AT YOUR SOLE RISK. WHILST NETFORT TAKES ALL REASONABLE MEASURES TO ENSURE THE ACCURACY, COMPLETENESS, RELIABILITY, AVAILABILITY AND SECURITY OF THE SOFTWARE, NETFORT DOES NOT WARRANT THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT THE USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. 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.

8. LIMITATION OF LIABILITY.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL NETFORT, ITS LICENSORS OR SUPPLIERS BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS OR LOST SAVINGS) HOWSOEVER ARISING OUT OF OR IN CONNECTION WITH THIS EULA AND/OR THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF NETFORT, ITS LICENSORS OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9. INDEMNITY.

9.1 YOUR RESPONSIBILITY. You agree that You are solely responsible for Your use of the Software and Documentation under this EULA, for any breach of Your obligations under this EULA and the consequences howsoever arising from any such breach.

9.2 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 to the extent arising out of or in connection with Your use of the Software and/or Documentation or Your violation of this EULA.

10. MISCELLANEOUS.

10.1 NO ASSIGNMENT. This EULA 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 EULA and/or the License, without the prior written consent of NetFort.

10.2 SEVERABILITY. All of the terms and provisions of this EULA 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.

10.3 NO WAIVER. No failure or delay on the part of NetFort to exercise any right or remedy under this EULA 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.

10.4 NO AGENCY. The relation between NetFort and You 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 has the authority to make any commitments on behalf of NetFort.

10.5 ENTIRE AGREEMENT. This EULA 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. This EULA may not be modified except by an instrument in writing issued by a duly authorised representative of NetFort.

10.6 LAW. This EULA is governed by the laws of Ireland without regard to any conflict of laws provisions. The parties hereto hereby consent to the exclusive jurisdiction of the courts of Ireland but nothing in this EULA 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 and/or (b) any other breach (or attempted breach) of this EULA.

Copyright © 2013 NetFort Technologies Limited. All Rights Reserved.

Revised: September 2013