EULA - End User License Agreement
Quest Software, Inc.
Software License Agreement
PLEASE READ THIS SOFTWARE LICENSE AGREEMENT CAREFULLY. BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE YOU INDICATE ACCEPTANCE OF AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE. THIS AGREEMENT DOES NOT SUPERSEDE ANY OTHER WRITTEN AGREEMENT BETWEEN YOU AND QUEST SOFTWARE, INC.
This agreement (the "Agreement") is made between Quest Software, Inc., ("Quest") and you, the customer ("Licensee"). The terms and conditions of this Agreement are intended by the parties as a final expression of their agreement with respect to the subject matter hereof and may not be contradicted by evidence of any prior or contemporaneous agreement unless such agreement is signed by both parties. In the absence of such an agreement, this Agreement shall constitute the complete and exclusive statement of the terms and conditions and no extrinsic evidence whatsoever may be introduced in any judicial proceeding that may involve the Agreement. This Agreement may not be modified except by a writing executed by both parties hereto.
SECTION 1. GENERAL PROVISIONS.
The provisions of this Section 1 shall apply to any and all Software, as defined below.
1.1 Software and Documentation. For the purpose of this Agreement, the licensed computer software program(s) downloaded and/or installed pursuant to this Agreement will be referred to as the "Software". "Documentation" for purposes of this Agreement shall mean the published and generally available user manuals and documentation that Quest delivers with the Software.
1.2 Restrictions. Quest reserves any and all rights, implied or otherwise, which are not expressly granted to Licensee hereunder, and retains all rights, title and interest in and to the Software. Licensee may not reverse engineer, decompile, disassemble, modify, adapt, rent, lease, loan, create or prepare derivative works of, create a patent based on, or attempt to discover or modify in any way the underlying source code of the Software or any part thereof. Licensee may not use the Software as a managed service provider, as an application service provider, to perform consulting or training services for a third party, in any commercial time share arrangement, in connection with the operation of any nuclear facilities, or in combination or conjunction with any third party product not properly licensed by Licensee. Licensee may not resell the Software licensed hereunder or use the Software for competitive analysis purposes. Licensee may not assign the Software to a third party for use in managing Licensees environment without the prior written consent of Quest. Licensee may not use the Software in combination or conjunction with any third party product not properly licensed by Licensee.
1.3 Export Law Assurances. Licensee acknowledges and agrees that the Software is subject to the export control laws and regulations of the United States ("Export Controls"), including the Export Administration Regulations ("EAR"), and sanctions regimes of the U.S. Department of Treasury, Office of Foreign Asset Control, and agrees to comply with the Export Controls. Licensee further agrees that (i) Licensee is not an entity restricted or prohibited by the Export Controls; (ii) the Software will not be exported, re-exported or otherwise transferred to any country subject to a United States trade embargo (currently Cuba, Iran, North Korea, Sudan, and Syria), or to a national or resident thereof; and (iii) the Software will not be exported, re-exported, or transferred to an end-user engaged in activities related to the design, development, production, or use of nuclear materials, nuclear facilities, nuclear weapons, missiles or chemical or biological weapons.
1.4 Limitation of Liability and Damages. IN NO EVENT WILL QUEST, ITS SUBSIDIARIES OR ANY OF THE LICENSORS, DIRECTORS, OFFICERS, EMPLOYEES OR AFFILIATES OF ANY OF THE FOREGOING BE LIABLE TO LICENSEE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND DATA AND THE LIKE), WHETHER FORESEEABLE OR UNFORESEEABLE, OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES, REGARDLESS OF THE BASIS OF THE CLAIM AND EVEN IF QUEST OR A QUEST REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. QUESTS CUMULATIVE LIABILITY FOR DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO QUEST FOR THE SOFTWARE THAT CAUSED THE DAMAGES. NO ACTION MAY BE BROUGHT AGAINST QUEST LATER THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION OCCURRED.
1.5 Nondisclosure. "Confidential Information" means the Agreement, Software, source code, object code, information regarding the functionality and performance of the Software, Software benchmark tests, Software license keys, trade secrets, know-how and any proprietary tools, proprietary knowledge or proprietary methodologies disclosed by one party (the "Disclosing Party") to the other party (the "Receiving Party") and not generally available to the public. The Receiving Party shall observe complete confidentiality with respect to the Confidential Information, and shall use commercially reasonable efforts and take all reasonable steps to protect the Confidential Information from any use, reproduction, publication, disclosure, or distribution except as specifically authorized by this Agreement. The Receiving Party shall promptly notify the Disclosing Party of any known unauthorized use or disclosure of the Confidential Information and will cooperate with the Disclosing Party in any litigation brought by the Disclosing Party against third parties to protect its proprietary rights.
1.6 Assignment. Licensee may not assign or transfer its rights or obligations under this Agreement without prior written approval by Quest and any purported assignment or transfer without Quests consent shall be null and void.
1.7 Injunctive Relief. Licensee hereby expressly agrees that Quest, in addition to any other rights or remedies which Quest may possess, shall be entitled to injunctive and other equitable relief without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
1.8 Software Supplied to the Government. The Software is a "commercial item" under FAR 12.201. Consistent with FAR section 12.212 and DFARS section 227.7202, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Software or Documentation by the U.S. government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted herein.
1.9 Survival. Sections 1.2, 1.4, 1.5, 1.10, 1.12, 1.13, and 3.4 shall survive termination of this Agreement for any reason whatsoever.
1.10 Warranties. THE LIMITED WARRANTIES AS DESCRIBED IN SECTION 2.2 AND SECTION 3.3 OF THIS AGREEMENT ARE THE ONLY WARRANTIES PROVIDED BY QUEST AND ITS LICENSORS, WHO EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS, STATUTORY OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, INTERFERENCE WITH QUIET ENJOYMENT, SATISFACTORY QUALITY, ACCURACY, AND FITNESS FOR A PARTICULAR PURPOSE.
1.11 Termination. This Agreement or an individual license granted hereunder may be terminated (a) by mutual agreement of Quest and Licensee, (b) by Licensee, upon thirty (30) days prior written notice to Quest, and (c) by Quest, if Licensee or its Affiliate breaches this Agreement and fails to cure such breach to Quests reasonable satisfaction within thirty (30) days following receipt of Quests notice thereof. Upon any termination of this Agreement or a license granted hereunder, Licensee shall immediately cease use of the applicable Software and certify in writing to Quest within thirty (30) days after termination that Licensee has destroyed or returned to Quest such Software and all copies thereof. Termination of this Agreement or a license granted hereunder shall not limit either party from pursuing any remedies available to it, including injunctive relief, or relieve Licensee of its obligation to pay all fees that have accrued or have become payable by Licensee hereunder.
1.12 Payment and Taxes. Licensee shall make all payments in full within thirty (30) days from the date of the applicable invoice. Any amounts payable by Licensee that remain unpaid after the due date shall be subject to a late charge equal to 1.5% of the invoice amount per month from the due date until such amount is paid, or the maximum rate permitted by law if less. The fees listed may not include taxes; if Quest is required to pay sales, use, property, value-added or other taxes based on the Software or services provided under this Agreement or on Licensees use of Software or services, then such taxes shall be billed to and paid by Licensee. This section does not apply to taxes based on Quests income.
1.13 General. This Agreement will be construed under the laws of the State of California, without giving effect to any conflict of laws principles that would require the application of laws of a different state. The U.N. Convention of Contracts for the Sale of International Goods shall not apply. In the event there is a dispute concerning the subject matter of this Agreement, the proper venue shall be the County of Orange, State of California, United States of America. Each party hereby waives opposition to jurisdiction in such court. Service of process can be done in accordance with the governing law of the Agreement. Performance of any obligation required by a party hereunder may be waived only by a written waiver signed by the other party, which waiver shall be effective only with respect to the specific obligation described therein. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, that provision will be enforced to the maximum extent permissible and the remaining provisions of this Agreement will remain in full force and effect. Shipping, if any, shall be FOB Shipping Point.
SECTION 2. TRIAL EVALUATION TERMS AND CONDITIONS.
The provisions of this Section 2 shall apply to Software downloaded for temporary and/or trial use.
2.1 License. Subject to the terms and conditions of this Agreement and the scope of use restrictions associated with the licenses granted by Quest, including but not limited to the licensing terms included in the Licensing Guide posted at www.quest.com/licensingguide, Quest hereby grants to Licensee and Licensee hereby accepts from Quest a non-perpetual, non-exclusive, non-transferable, and non-sublicensable license to install, execute, access, run, or otherwise interact with the Software within the scope of the license granted solely for Licensees own internal evaluation and for no other purpose for an evaluation period of seven (7) days from the download date (the "Evaluation Period").
(a) Nothing in this Agreement entitles Licensee to receive source code for any part of the Software.
(b) Licensees opportunity for a free evaluation of the Software is limited to one Evaluation Period per release of the Software.
(c) There is no fee for Licensees use of the Software in accordance with this Agreement during the Evaluation Period, however, Licensee is responsible for any applicable shipping charges or taxes which may be incurred under this Agreement, and any fees which may be associated with usage beyond the scope permitted herein.
(d) Licensee acknowledges that it is downloading the Software with the intent to purchase a perpetual license to use the Software upon completion of a successful evaluation of such. A Quest sales representative may contact Licensee after the download to discuss Licensees purchase of a perpetual license.
2.2 AS-IS Warranty. Licensee and Quest agree that the SOFTWARE is provided AS IS AND UNSUPPORTED, and that QUEST makes no warranty as to the SOFTWARE, express STATUTORY or implied, including but not limited to THE implied warranties of merchantability, TITLE, NON-INFRINGEMENT, INTERFERENCE WITH QUIET ENJOYMENT, SATISFACTORY QUALITY, ACCURACY, and fitness for a particular purpose.
SECTION 3. FULL LICENSE TERMS AND CONDITIONS.
The provisions of this Section 3 shall apply to Software licensed with no time limits.
3.1 License. Subject to the terms and conditions of this Agreement and the scope of use restrictions associated with the licenses granted by Quest, including but not limited to the licensing terms included in the Licensing Guide posted at www.quest.com/licensingguide, and in consideration for Licensees payment of the applicable license fees, Quest hereby grants to Licensee, and Licensee hereby accepts from Quest, a perpetual, non-exclusive, non-transferable and non-sublicensable license to (i) install, execute, access, run, or otherwise interact with the Software within the scope of license granted solely for Licensees own internal business operations; (ii) make a reasonable number of additional copies of the Software solely for non-productive archival purposes, so long as neither the original and a copy nor two copies of the same license are in use at the same time; and (iii) make copies of the Documentation as reasonably necessary to support its authorized users in their use of the Software. Each copy must contain all titles, trademarks, and copyrights and restricted rights notices as in the original. Nothing in this Agreement entitles Licensee to receive source code for any part of the Software.
3.2 Maintenance. During any Maintenance Period and for the applicable fees, Quest shall make available to Licensee the Maintenance Services as listed in this Section 3.2. The Maintenance Period is a twelve (12) month period. The first Maintenance Period begins on the date of the first invoice for the Software and ends twelve (12) months thereafter. Each Maintenance Period shall automatically renew for another twelve (12) months unless the renewal has been cancelled by either party giving written notice at least sixty (60) days prior to the first day of the renewal Maintenance Period. Maintenance fees shall be due in advance of renewal. The procedure for reinstating Maintenance Services after they have lapsed is posted at http://support.quest.com/Maintenance_Service.asp.
Maintenance Services consist of the following:
(a) Quest shall make available to Licensee new versions and releases of the Software, including Software corrections, enhancements and upgrades, if and when Quest makes them generally available without charge as part of Maintenance Services for the Software.
(b) Quest shall respond to unlimited communications from Licensee that report Software failures not previously reported to Quest by Licensee.
(c) Quest shall respond to unlimited communications from Licensees Technical Coordinators that request consultation on the operational/technical aspects of the Software; provided that Quest shall have the right to limit such responses if Quest determines, in its sole reasonable discretion, that on-site consultation at Quests then-current rate is required.
(d) Licensee shall have access to Quests Support Web site: 'SupportLink' at http://support.quest.com.
(e) Maintenance Services for the Shareplex Software are available 24X7. For all other Software, Maintenance Services are available during standard support hours (Business Hours) as indicated on SupportLink. Extended support may also be available for other Software.
(f) For all Software, Quests Maintenance Services shall be available via the Web, email, or telephone.
(g) During Business Hours, Quest will respond within one (1) hour to a call from Licensee which reports a critical Software condition (a "Severity Level 1 Problem"). Licensee must use commercially reasonable efforts to provide Quest with the necessary remote access to facilitate the identification and resolution of a Severity Level 1 Problem. Quests ability to identify and resolve a Level 1 Problem may be delayed without such remote access.
(h) The initial Maintenance Period for Software developed by an entity which Quest has acquired or merged with may, during the first year following the effective date of the acquisition or merger, be governed by terms other than those in this Section 3.2 (a) (g). The applicable different terms, if any, shall be stated on Quests Support Web site: SupportLink at http://support.quest.com.
3.3 Limited Warranty. Quest warrants that for a period of thirty (30) days from the initial date of delivery (i) the media provided by Quest, if any, on which the Software is recorded will be free from material defects in materials and workmanship under normal use, and (ii) the operation of the Software, as provided by Quest, will substantially conform to the Documentation applicable to such Software.
THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF, AND QUEST HEREBY DISCLAIMS, ALL OTHER WARRANTIES, WHETHER EXPRESS, STATUTORY OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, INTERFERENCE WITH QUIET ENJOYMENT, SATISFACTORY QUALITY, ACCURACY, AND FITNESS FOR A PARTICULAR PURPOSE.
Licensee must report in writing any breach of the foregoing warranties to Quest during the warranty period. Licensees exclusive remedy, and Quests sole obligation, for any such breach of warranty shall be for Quest to replace defective media or to correct or provide a workaround for reproducible errors that cause a breach of the warranty within a reasonable time considering the severity of the error and its effect on Licensee, or, at Quests option, refund the license fees paid for the nonconforming Software upon return of such Software to Quest and termination of the related license hereunder.
3.4. Usage Verification. At Quest's request, but not more frequently than annually, Licensee shall furnish Quest with a document signed by Licensee's authorized representative verifying Licensee's usage of the Software. Licensee will permit Quest to review Licensee's deployment and use of the Software for compliance with the terms and conditions of this Agreement at Quest's expense. Any such reviews shall be scheduled at least fifteen (15) days in advance, shall be conducted during normal business hours at Licensee's facilities, and shall not unreasonably interfere with Licensee's business activities. If Licensee's use of the Software is found to be greater than contracted for, Licensee will be invoiced for the additional licenses or license upgrades (based on the applicable units of measure, e.g., servers, server tiers or users) and the unpaid license fees shall be payable in accordance with this Agreement. Additionally, if the unpaid fees exceed five percent (5%) of the license fees paid for the subject Software, then Licensee shall also pay Quest's reasonable costs of conducting the audit.