PLEASE SCROLL DOWN AND READ CAREFULLY ALL TERMS AND CONDITIONS CONTAINED IN THIS LICENSE AGREEMENT (COLLECTIVELY WITH AN APPROVED QUOTE (AS HEREINAFTER DEFINED) THIS "AGREEMENT") BEFORE USING THE SOFTWARE, HARDWARE AND/OR SERVICES DEFINED HEREIN AS THE "TECHNOLOGIES".
BY CLICKING ON THE "I ACCEPT" BUTTON BELOW, INSTALLING THE SOFTWARE AND/OR USING THE TECHNOLOGIES, YOU ACKNOWLEDGE AND AGREE THAT YOU: (I) HAVE READ ALL THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT; (II) UNDERSTAND ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT; (III) ACCEPT AND AGREE TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT; AND (IV) ACKNOWLEDGE AND AGREE THAT THE ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT ("E-SIGN") APPLIES TO THIS TRANSACTION AND ANY TRANSACTIONS BETWEEN THE PARTIES UNDERTAKEN HEREUNDER MAY BE UNDERTAKEN BY ELECTRONIC MEANS.
IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST CLICK ON THE "CANCEL" BUTTON BELOW TO DISENGAGE THE SOFTWARE INSTALLATION PROCESS, YOU MUST CONTACT NETBEEZ (AS DEFINED BELOW) IMMEDIATELY AND YOU MAY NOT INSTALL OR USE THE SOFTWARE AND OTHER TECHNOLOGIES. IF YOU HAVE ALREADY INSTALLED OR ARE USING THE SOFTWARE OR OTHER TECHNOLOGIES AND DO NOT AGREE WITH THE TERMS AND CONDITIONS IN THIS AGREEMENT, YOU MUST IMMEDIATELY UNINSTALL THE SOFTWARE, DISCONTINUE USE OF THE TECHNOLOGIES, CONTACT NETBEEZ IMMEDIATELY, AND COMPLY WITH THE TERMINATION PROVISIONS HEREOF.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY (OR OTHER ENTITY), YOU REPRESENT THAT YOU ARE AN EMPLOYEE OR AGENT OF SUCH COMPANY (OR OTHER ENTITY) AND YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH COMPANY (OR OTHER ENTITY).
This Agreement is entered between the individual or entity obtaining the Technologies (“you” or “Customer”), and NetBeez, Inc. (“NetBeez”) a Delaware corporation having its principal place of business at 5124B Penn Avenue, Pittsburgh, PA 15224.
Each of the above individually referred to as a “Party” and jointly as the “Parties”.
- NetBeez is the developer of software, hardware technologies and services related to network monitoring.
- You desire to obtain a paid license to use NetBeez’s software and hardware technologies and services and to agree to the terms and conditions of this Agreement in connection therewith.
NOW IT IS HEREBY AGREED AS FOLLOWS BY THE PARTIES WITH THE INTENT TO BE LEGALLY BOUND HEREBY:
“Approved Quote” means the NetBeez quote signed by Customer when requesting use of any Technologies that, when approved by NetBeez, specifies the number and type of Technologies ordered and which is automatically incorporated into and made a part of this Agreement by reference.
“Agent” (“Monitoring Agent” or “Agent”) is that portion of the Technologies that performs network and application tests and that reports availability and performance measurement data to the Server. An Agent may be delivered as an appliance that is an integrated Hardware and Software unit (a "Hardware Agent"), or as a virtual machine (a “Virtual Agent”).
“Documentation” means the user manuals and related explanatory written materials concerning the Technologies that are made available to the Customer.
“Hardware” means the physically tangible electro-mechanical system or subsystem, including without limitation a computer, and the associated physical equipment, power supply included, directly involved in the performance of data processing or communications functions. NetBeez does not manufacture Hardware but works with third party manufacturers to deliver its Technologies as an integrated hardware and software solution when requested. Without limiting the foregoing, the term "Hardware" includes a Hardware Agent as defined above.
“Server” is that portion of the Technologies where the user dashboard and other system components run.
“Services” means the network monitoring and related services to be rendered by NetBeez pursuant to this Agreement.
"Software” is the proprietary software incorporated into the Technologies and Documentation with respect thereto as well as any updates, derivatives, modifications and/or enhancements that are provided by NetBeez to Customer pursuant to this Agreement. Without limiting the foregoing, the term "Software" includes the code underlying any Servers and Monitoring Agents provided to Customer pursuant to this Agreement and expressly excludes "Third Party Software".
"Technologies" means, collectively, the Software, the Hardware and the Services made available by NetBeez to the Customer.
"Third Party Software" means software that has not been developed by NetBeez (including without limitation any third-party plug-in) and that is licensed under various open source programs pursuant to an end user license agreement that permits the end user to copy, modify and redistribute such software.
2. Grant of Licenses. Customer’s rights to the Technologies are limited to the licenses expressly granted to Customer in this Agreement. NetBeez reserves all rights not expressly granted in this Agreement.
a. Software License With Respect to Hardware Agents. To the extent Customer acquires, installs, executes, or uses Hardware Agents pursuant to this Agreement, and subject to Customer's compliance with all of the terms and conditions of this Agreement (including without limitation payment of all costs and fees set forth in this Agreement and applicable to Customer), NetBeez hereby grants Customer and such of Customer's employees and agents as are authorized by NetBeez in the applicable Approved Quote a limited, revocable, nonexclusive, non-transferable, non-refundable, and non-sublicensable license solely to install, execute, access and use (in the United States, its territories and any other country in which the same may be lawfully exported) one copy of the Software (including the Server) on any single computer, provided the Software is in use on only one computer at any time. Customer is subject to this Agreement, and deemed a Customer for all purposes hereunder, even if Customer has not paid all applicable costs and fees and/or has received an evaluation or trial copy of the Software. This license confers no title to, or ownership in, the Software and is not a sale of any rights in the Software.
b. Software License With Respect To Virtual Agents. To the extent Customer acquires, installs, executes, or uses Virtual Agents under this Agreement, and subject to Customer's compliance with all of the terms and conditions of this Agreement (including without limitation payment of all costs and fees set forth in this Agreement and applicable to Customer), NetBeez hereby grants Customer and such of Customer's employees and agents as are authorized by NetBeez in the applicable Approved Quote a limited, revocable, nonexclusive, non-transferable, non-refundable, and non-sublicensable license solely to install, execute and use (in the United States, its territories and any other country in which the same may be lawfully exported) the exact number of Agents set forth in the Approved Quote and the Software necessary to utilize such Agents. Customer is subject to this Agreement, and deemed a Customer for all purposes hereunder, even if Customer has not paid all applicable costs and fees and/or has received an evaluation or trial copy of the Software. This license confers no title to, or ownership in, the Software and is not a sale of any rights in the Software.
c. Copies of Software. Customer may copy the Software solely for back up and archival purposes (and specifically excluding usage on other computers), provided that the original and each copy is kept in Customer’s possession in a secure location and that Customer’s installation and use of the Software otherwise complies with the terms of this Agreement. Customer agrees to reproduce and prominently display all copyright notices in the original Software on all copies.
3. Third Party Software. Customer acknowledges and agrees that the Software contains Third Party Software. Below is a list of Third Party Software that the Software contains:
a. Server. The Server is installed on a GNU/Linux Ubuntu distribution and all trademarks and copyrights applicable thereto belong to Ubuntu as set forth in more detail at http://www.ubuntu.com/intellectual-property-policy.
b. Agent. The Agent is installed on a GNU/Linux Debian distribution and all trademarks and copyrights belong to Debian as set forth in more detail at http://www.debian.org/trademark. ANY THIRD PARTY SOFTWARE THAT IS PROVIDED WITH THE SOFTWARE IS INCLUDED FOR USE AT THE CUSTOMER'S OPTION. IF YOU CHOOSE TO USE SUCH THIRD PARTY SOFTWARE, SUCH USE SHALL BE GOVERNED BY SUCH THIRD PARTY'S LICENSE AGREEMENT AND YOU AGREE TO COMPLY WITH SUCH LICENSE AGREEMENT. NetBeez is not responsible and shall not have liability for any Third Party Software OR YOUR USE THEREOF.
4. Hardware Matters. To the extent Customer purchases one or more Hardware Agents pursuant to an Approved Quote, title to such Hardware Agents shall pass to Customer upon shipment and full payment . Customer hereby grants NetBeez a purchase money security interest in all such Hardware Agents purchased hereunder to secure Customer's payment obligations under this Agreement. To the extent Customer does not purchase Hardware Agents it obtains pursuant to this Agreement, NetBeez agrees to lease the same to Customer (for use by Customer's employees and agents that are authorized by NetBeez in the applicable Approved Quote) provided that Customer hereby agrees that NetBeez remains the owner of all rights, title and interest in and to the Hardware (including without limitation the Software with respect thereto). Customer acknowledges and agrees that Customer will not attempt to open the case of any Hardware Agent and will not try to access, modify or tamper with any Hardware Agent. No Hardware Agents acquired from NetBeez (or any other person or entity pursuant to this Agreement) may be transferred, leased, lent, rented, assigned, liened against or resold in any way without NetBeez's prior written consent. With respect to Hardware Agents that are leased to Customer hereunder, Customer: (a) agrees to use a reasonable standard of care to protect such Hardware Agents from damage, neglect, or misuse; (b) shall bear all risk of loss with respect to such Hardware Agents while it is in Customer's possession or the possession of those controlled by Customer; (c) shall reimburse NetBeez for any loss or damage thereto, reasonable wear and tear excepted; and (d) hereby grants NetBeez a security interest in and to such Hardware Agents.
5. Pricing; Rights, Title, and Interest to Technologies. The pricing with respect to Technologies procured by Customer hereunder shall be set forth in the applicable Approved Quote and Customer agrees to pay any fees and costs (including applicable taxes) under this Agreement as and when due. Except as otherwise set forth herein, NetBeez and its licensors remain the owner of all right, title, and interest in and to the Technologies and all associated intellectual property. Nothing contained herein shall be deemed to convey to Customer any title, right, or interest in and to such Technologies or any trademarks, service marks, or intellectual property rights of NetBeez or its licensors. The Technologies are protected by copyright laws in the United States and other countries as well as by international treaties.
6. Restrictions. Customer shall not, and shall not permit anyone else within its control, to: (i) use or possess the Technologies except as expressly allowed under the License Grant section; (ii) copy or reproduce in whole or in part the Software or the Documentation (except as provided herein) without the advance express written permission of NetBeez; (iii) remove any proprietary notices or labels on or otherwise incorporated into the Technologies; (iv) try to access the content and file system of a Server or an Agent where the Software is running; (v) modify or adapt the Technologies (including without limitation the Software) or incorporate or merge it or any component thereof into another program; (vi) reverse engineer, disassemble, decompile or make any attempt to discover the source code of the Technologies (including without limitation the Software); (vii) place the Software onto a server so that it is accessible via a public network such as the Internet, (viii) sublicense, rent, lease or lend any portion of the Technologies, or (ix) permit others to use the Technologies in addition to those authorized under this Agreement.
7. No Warranties. EXCEPT TO THE EXTENT SET FORTH IN THE APPLICABLE APPROVED QUOTE, THE TECHNOLOGIES ARE PROVIDED “AS IS” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, ACCURACY, AND EFFORT IS WITH THE CUSTOMER. EXCEPT TO THE EXTENT SET FORTH IN THE APPLICABLE APPROVED QUOTE, ALL WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, REGARDING THE TECHNOLOGIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, NON-INTERFERENCE WITH CUSTOMER’S QUIET ENJOYMENT, THAT THE TECHNOLOGIES WILL MEET CUSTOMER’S REQUIREMENTS, ARE ABLE TO OPERATE ON AN UNINTERRUPTED BASIS, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, ARE HEREBY EXPRESSLY DISCLAIMED. WITHOUT LIMITING THE FOREGOING, NETBEEZ DOES NOT WARRANT UNINTERRUPTED OR ERROR-FREE OPERATION OF THE TECHNOLOGIES.
8. Limitations of Liability; No Duty to Support, Maintain or Update. To the maximum extent permitted by applicable law, in no event shall NetBeez’s total cumulative liability in connection with this Agreement and the Technologies, whether in contract or tort or otherwise, exceed the amount of THE sums ACTUALLY paid by Customer to NetBeez in the twelve (12) months preceding the date the first claim arises hereunder.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL NETBEEZ, ITS AFFILIATES, THIRD PARTY LICENSORS, OR SUPPLIERS BE LIABLE TO CUSTOMER FOR ANY DAMAGES, INCLUDING ANY LOST PROFITS, LOST SAVINGS, OR INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING FROM THE USE OR THE INABILITY TO USE THE TECHNOLOGIES (EVEN IF WE OR AN AUTHORIZED DEALER OR DISTRIBUTOR HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES), OR FOR ANY CLAIM BY ANY OTHER PARTY.
Customer acknowledges that NetBeez would not enter into this Agreement without these limitations on its liability.
Customer also acknowledges that, except as otherwise set forth in the applicable Approved Quote, NetBeez has no duty to update, supplement, support, maintain or otherwise modify the Technologies at any time.
9. Term and Termination. This Agreement takes effect upon Customer’s use of any portion of the Technologies and remains effective until terminated. In those instances where Customer purchases Hardware Agents and corresponding Software and Services, this Agreement may not be terminated except that this Agreement shall automatically terminate in the event that Customer breaches one or more terms hereof. In those instances where Customer leases Hardware Agents and/or Virtual Agents and corresponding Software, this Agreement: (i) may be terminated by Customer at the end of the then-current one-year term of this Agreement, by Customer providing notice to NetBeez at least thirty (30) days prior to the end of such one-year term that such Customer has elected to cease leasing the Hardware Agents and/or Virtual Agents and corresponding Software; (ii) may be terminated by NetBeez for any reason or no reason upon no less than thirty (30) days' prior written notice to Customer; and (iii) shall automatically terminate upon Customer's breach hereof. In the event that a Customer who leases Hardware Agents and/or Virtual Agents and corresponding Software does not provide NetBeez with at least thirty (30) days prior written notice of its intent to terminate this Agreement at the end of the then-current one-year term, the term of this Agreement shall automatically renew for one-year periods thereafter. Upon termination of this Agreement all licensed rights granted in this Agreement will immediately and automatically cease to exist. Customer agrees on termination of this license to destroy all copies of the Software and Documentation in Customer’s possession and return any Hardware Agents that are leased to Customer hereunder.
10. Confidentiality. The Technologies contain trade secrets and proprietary know-how that belong exclusively to NetBeez and it is being made available to Customer in strict confidence. ANY USE OR DISCLOSURE OF THE TECHNOLOGIES OR OF ITS ALGORITHMS, SOURCE CODE, PROTOCOLS OR INTERFACES, OTHER THAN IN STRICT ACCORDANCE WITH THIS LICENSE AGREEMENT, MAY BE ACTIONABLE AS A VIOLATION OF NETBEEZ’S TRADE SECRET RIGHTS.
11. Export and Compliance with Laws. Customer agrees that the Software will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations. Customer will defend, indemnify, and hold harmless NetBeez from and against any violation of such laws or regulations by Customer or any of its agents, officers, directors, or employees. In carrying out its respective obligations under the Agreement, each Party shall comply with all applicable laws and regulations of the local country and of any other applicable country.
12. Notices. This license agreement may be modified only in writing signed or digitally accepted by Customer and NetBeez.
13. Choice of Law; Exclusive Venue and Jurisdiction. This Agreement shall be interpreted, enforced and governed by the laws of Pennsylvania, excluding its choice of law provisions. Any disputes arising under or relating to this Agreement shall be heard in the Court of Common Pleas of Allegheny County, Pennsylvania or the United States District Court for the Western District of Pennsylvania. Each Party hereby consents to the jurisdiction of said courts and waives any objections that it has or may have at any time to the exclusive jurisdiction of such courts, the laying of venue in such courts or the convenience of the forum.
14. Severability. If, at any time, any clause or provision in this Agreement is or becomes unenforceable or invalid in any respect under the law of any jurisdiction, neither legality, validity or enforceability of the remaining provisions hereof nor the legality, validity or enforceability of such provision under the law of any other jurisdiction shall in any way be affected or impaired thereby. The award shall be final and binding on the Parties.
15. Force Majeure. Neither Party hereto shall be liable for any breach of its obligations hereunder resulting from causes beyond its reasonable control, including but not limited to, acts of government, strike, act of terrorism, natural disasters, fire and explosions, failure or diminishment of power or telecommunications or data networks or services (an “Event of Force Majeure”) to the extent that such breach is due to an Event of Force Majeure. Each of the Parties agrees to give notice forthwith to the other Party promptly after becoming aware of an Event of Force Majeure such notice to contain details of the circumstances giving rise to the Event of Force Majeure. If a default due to an Event of Force Majeure continues for more than four (4) weeks, then the Party not in default shall be entitled to terminate this Agreement. Neither party shall have any liability to other in respect of the termination of this Agreement as a result of an Event of Force Majeure.
16. Hold Harmless. Customer agrees to indemnify, defend and hold harmless NetBeez (and its officers, directors, agents, and employees) from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) arising out of or in connection with any claim arising from or relating to any action taken or not taken by Customer or Customer's officers, directors, agents, or employees, and all claims with respect to the Technologies. Without limiting the foregoing, Customer specifically agrees to indemnify, defend and hold harmless NetBeez (and its officers, directors, agents, and employees) from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) arising out of or in connection with any claim by a third party or by Customer with respect to network outages reported, not reported or misreported by virtue of use of the Technologies and damage to network systems attributable thereto.
17. No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended or shall confer upon any person or entity other than the Parties any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement, except that any affiliate of NetBeez may enforce this Agreement and any of its clauses or provisions either directly for such affiliates’ benefit or the benefit of NetBeez.
18. Entire Agreement; Termination of Software, Hardware and Services Evaluation Agreement. This Agreement, including the Approved Quote and any exhibits and appendices hereto and thereto, constitute the entire understanding between the parties with respect to the subject matter thereof. In the event that the Parties have entered into prior agreements with respect to the Technologies (including without limitation any Software, Hardware and Services Evaluation Agreement), such agreements are hereby terminated and made of no further force or effect. There are no promises, terms, conditions, or obligations other than those contained herein and therein. In the event of any conflict between the provisions of the body of this Agreement and an Approved Quote, the provisions of the body of this Agreement shall govern.
19. Assignment. Customer shall not be entitled to assign or transfer all or any portion of its rights, benefits and obligations under this Agreement without the prior written consent of NetBeez.
20. Remedies; No Waiver. The Parties’ rights and remedies under this Agreement are cumulative. Customer acknowledges that the Technologies contain valuable trade secrets and proprietary information of NetBeez, that any actual or threatened breach of this Agreement will constitute immediate, irreparable harm to NetBeez for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. No failure to exercise, nor any delay in exercising, on the part of either Party, any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise thereof or the exercise of any other right or remedy.
21. Independent Contractors. In performing under this Agreement, each Party shall at all times and for all purposes, constitute an independent contractor and not an employee or agent of the other Party any of its affiliates.
22. Survival. Any provision of this Agreement that, in order to give proper effect to its intent, should survive termination, shall survive the termination of this Agreement.
23. Government Restricted Rights. The Software and Documentation are “commercial items,” as that term is used in 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, and, consistent with 48 C.F.R. § 12.212 and 48 C.F.R. Subpart 227.72, all U.S. government Customers and authorized users acquire the Software and Documentation with restricted rights and only those rights set forth in this Agreement. Use, duplication, reproduction, or disclosure by the U.S. government, including any department, agency or unit thereof, is subject to the restrictions applicable under of the Federal Acquisition Regulations and the Department of Defense Supplement thereto, if applicable, or any successor laws, rules or regulations. Licensor/manufacturer is: NetBeez, Inc., 5124B Penn Avenue, Pittsburgh, PA 15224.
24. Headings. The headings in this Agreement are for purposes of convenience only and will not limit or otherwise affect the terms or provisions hereof.
25. Publicity.NetBeez shall have the right to reference Customer as a customer without disclosing the terms of this Agreement. Except as required by law or otherwise set forth in this Agreement, all public announcements regarding the terms of this Agreement shall be coordinated between NetBeez and Customer by mutual agreement. Customer grants NetBeez a limited license to use Customer's Marks in accordance with Customer's Marks usage guidelines for the sole purpose of identifying Customer as a customer. The parties will not otherwise use or register (or make any filing with respect to) the other party’s Marks anywhere in the world. Neither party will contest anywhere in the world the use by or authorization by the other party of any of such party’s Marks. No other right or license with respect to any trademark, tradename, or other designation is granted under this Agreement.
26. Use of Dashboard Analytics Services. NetBeez uses third-party analytics services to help understand Customer’s usage of the Technologies. In particular, NetBeez provides a limited amount of Customer’s information (such as name, email address, actions within the dashboard, and associated timestamps) to Pendo.io and Intercom.io (collectively "Analytics Services") to collect data for analytics purposes when you visit and use the Technologies. Such Analytics Services analyze Customer’s use of the Technologies so that NetBeez can improve its services to Customer. NetBeez may also use Analytics Services as a medium for communications, either through email, or through messages within our product(s). As part of our service agreements, Analytics Services collect publicly available contact and social information related to Customer, such as email address, gender, company, job title, photos, website URLs, social network handles and physical addresses, to enhance Customer’s user experience. For more information on the privacy practices of Pendo.io, please visit https://www.pendo.io/data-privacy-security/, and for Intercom.io, please visit https://www.intercom.com/terms-and-policies/. If Customer would like to opt out of having this information collected by or submitted to Analytics Services, please contact NetBeez or setup outbound firewall rules that will block all traffic from the NetBeez server to Internet websites. By not opting out pursuant to the preceding sentence, Customer consents to the activities described in this Section and agrees to look solely to the Analytics Services in the event of any issue in connection with the activities of the Analytics Services.