Ipswitch License Agreement

READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE LOADING, AND/OR OTHERWISE USING THE SOFTWARE. THE TERMS OF USE OF THE SOFTWARE ARE DESCRIBED IN THE IPSWITCH LICENSE AGREEMENT OR LICENSE AND MAINTENANCE AGREEMENT FOR THE SOFTWARE WHICH MUST BE EXECUTED BETWEEN YOU (OR YOUR COMPANY OR INSTITUTION) AND IPSWITCH, INC. IF NO SUCH AGREEMENT HAS BEEN EXECUTED, THEN THIS AGREEMENT REPRESENTS THE ENTIRE AGREEMENT CONCERNING THE SOFTWARE BETWEEN YOU AND IPSWITCH, AND IT SUPERSEDES ANY PRIOR PROPOSAL OR UNDERSTANDING BETWEEN YOU AND IPSWITCH. BY DOWNLOADING OR INSTALLING THE SOFTWARE, AND/OR USING THE SOFTWARE, YOU ARE ACCEPTING AND AGREEING TO THE TERMS OF THIS AGREEMENT, AND ARE THEREBY CREATING A CONTRACTUAL AGREEMENT BETWEEN YOU AND IPSWITCH. IF YOU ARE NOT WILLING TO BE BOUND BY THE TERMS OF THIS AGREEMENT, YOU SHOULD NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE, AND PROMPTLY RETURN THE SOFTWARE AND ASSOCIATED DOCUMENTATION.

1. LICENSE GRANT

Ipswitch grants to you, and you accept, a non-exclusive and non-transferable license to use software program(s) provided by Ipswitch, and the accompanying user documentation ("Documentation"), (collectively, the "Software") as purchased by you only as authorized in this Agreement. You may not assign, transfer, rent, or sublicense the Software (any violation of the foregoing will result in automatic termination of the license without any right of refund). The Software consists of proprietary products of Ipswitch or its third party suppliers, and the proprietary rights that protect such property may include, but are not limited to, U.S. and international copyrights, trademarks, patents, and trade secret laws of general applicability. All right, title and interest in and to the Software are and shall remain with Ipswitch or its third party suppliers, as applicable. This Agreement does not convey to you any interest in or title to the Software, but only a limited right of use revocable in accordance with its terms.

You may use the Software on a specific number of computers, as identified at the time of purchase. Each instance of a Virtual Machine (VM) and each instance of a session in an environment where multiple users share computer resources are considered one computer. For Software in which more than one feature set (e.g. “standard”, “premium”) is available, you may solely use one specific feature set. If you desire a different feature set, you must purchase an upgrade. Feature sets are defined in the Documentation and identified at the time of purchase.

For Software in which more than one level (e.g. “100 users”, “300 devices”) is available, you may solely use one specific level. If you desire a different level, you must purchase an upgrade. Levels are defined in the Documentation and identified at the time of purchase.

For Software provided to you for an evaluation period, you may use the Software until the completion of the evaluation period.

For Software provided to you as a subscription, you may use the Software until the completion of the subscription period.

For Software acquired by you under a perpetual license, you may use the Software indefinitely.

For Software in which more than one network environment (e.g. “internally owned and operated”, “externally owned and operated”) is available, you may solely use the Software in an internally or externally owned and operated network. If you desire to monitor an internal or external network environment that you do not own, you must purchase a separate license.

For Software which includes dynamic content (e.g. anti-virus and anti-spam definitions), said content is sold on a subscription basis and remains current as long as you maintain an active subscription with Ipswitch.

For Software designated as Software Development Kits (SDK), you may create, reproduce and distribute solutions, plug-ins or other derivative works (collectively “applications”) solely to end users who have a valid and current license for the associated Software. For SDK Software designated as “Internal Use”, you must further restrict distribution solely to end users in your organization.

If you purchase an upgrade or if you downgrade or otherwise change the status of a license, it is considered a change to your existing license rather than a new license, and you relinquish all rights to the version of the product that was upgraded or changed.

2. CONSENT TO USE OF DATA

You agree that Ipswitch and its subsidiaries may collect and use technical and related information, including but not limited to technical information about your computer, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services to you (if any), and to verify compliance with the terms of this License.

3. INSTALLATION AND RESTRICTIONS

You assume responsibility for selection of the Software to achieve your intended results and for the installation, use, and valid operation of the Software. You agree at all times to maintain records specifically identifying the Software and the personal computers on which the Software is being used and to make such records available for inspection by Ipswitch during normal business hours.

You may make copies of the software media solely for backup, disaster recovery, or archival purposes, which copies shall contain Ipswitch’s copyright and other proprietary notices. You may not modify, translate, adapt, decompile, disassemble, decrypt, extract, or otherwise reverse engineer or attempt to discover the confidential source code and techniques incorporated in the Software. You may not create derivative software based on any trade secret or proprietary information of Ipswitch.

If Ipswitch provides you with the Ipswitch WhatsUp Gold Database Schema (the “Database Schema”), the following terms shall apply. You may use the Database Schema only for the purpose of using and maintaining for your own internal use WhatsUp Gold software products for which you have a valid license from Ipswitch. Ipswitch may revise, modify or cease to provide the Database Schema or any part thereof from time to time without notice, and there is no assurance of backwards or forward compatibility of the Database Schema. You shall not use the Database Schema to develop any product or service or for any commercial purpose, including without limitation any product or service competitive with Ipswitch. You shall not copy, distribute or reproduce the Database Schema, and shall not modify, adapt, translate, prepare derivative works from, or decompile the Database Schema. Also, you shall not modify the WhatsUp Gold database in any way or change any data in the database. Ipswitch shall have no responsibility to provide you with any support services with respect to the Database Schema. You understand and agree that any change to the Database Schema or the WhatsUp Gold database may adversely affect the WhatsUp Gold software and/or the operation or performance thereof, for which Ipswitch shall have no responsibility. Your use of the Database Schema will be at your own risk and account. THE DATABASE SCHEMA IS PROVIDED “AS IS” WITH NO WARRANTIES WHATSOEVER. IPSWITCH DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR USE FOR A PARTICULAR PURPOSE. The Database Schema comprise trade secrets of Ipswitch, and you shall keep confidential the Database Schema and all copies thereof in your possession and shall limit access to the Database Schema to those of your staff who require such access in connection with your use of the Database Schema as permitted hereby. Ipswitch may terminate all of your rights with respect to the Database Schema at any time for any reason.

4. LICENSE FEES

The license fees paid by you are in consideration of the licenses granted under this Agreement. If the Software is under evaluation and no license fees have been paid, this Agreement will expire at the end of the evaluation period unless you have purchased a license key to enable subsequent activation. If the Software is provided on a subscription basis, this Agreement will expire at the end of the subscription period unless you have purchased a renewal subscription.

5. TERMINATION

This License Agreement is effective until terminated. You may terminate this License Agreement at any time. This License Agreement will also terminate if you fail to comply with any terms and conditions set forth elsewhere herein. You agree upon any termination to destroy the Software together with all copies, modifications and merged portions in any form, and certify in writing that you have done so.

6. LIMITED WARRANTY

For twenty one (21) days (the "Warranty Period") from your date of purchase, Ipswitch warrants for your benefit alone, that (i) the Software will substantially conform to the applicable Documentation and (ii) the media on which the Software is distributed and the Documentation (if any) are free from defects in materials and workmanship and, (iii) during the Warranty Period, the Software will operate substantially in accordance with the Documentation. If during the Warranty Period an error in the Software occurs, you may return the Software to Ipswitch for either repair or replacement, or if so elected by Ipswitch, refund of the license fee paid by you under this Agreement. For any breach of the foregoing warranty during the Warranty Period, your exclusive remedy and Ipswitch's entire liability will be as described in the previous sentence. THE FOREGOING ARE THE ONLY WARRANTIES PROVIDED BY IPSWITCH AND IPSWITCH DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

7. LIMITATION OF LIABILITY

Because computer software is inherently complex and may not be completely free of errors, it is your responsibility to verify your work and to make backup copies, and Ipswitch will not be responsible for your failure to do so. Ipswitch’s cumulative liability to you or any party for any loss or damages resulting from any claims, demands, or actions arising out of or relating to this Agreement shall not exceed the license fee paid to Ipswitch for the applicable Software.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL IPSWITCH BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, ECONOMIC, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE IPSWITCH PRODUCTS OR SERVICES, INCLUDING, WITHOUT LIMITATION, DAMAGES OR COSTS RELATING TO THE LOSS OF PROFITS, BUSINESS, GOODWILL, DATA, OR COMPUTER PROGRAMS, EVEN IF IPSWITCH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU.

8. U.S. GOVERNMENT RESTRICTED RIGHTS

If the Software is acquired on behalf of a unit or agency of the United States Government this provision applies.

For units of the Department of Defense (DoD), this Software is supplied only with "Restricted Rights" as that term is defined in the DoD Supplement to the Federal Acquisition Regulations, 52.227-7013(c)(1)(ii) and:

Use, duplication or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 52.227-7013. Contractor: IPSWITCH, Inc., 83 Hartwell Avenue, Lexington, MA 02421

Government personnel using this Software, other than under a DoD contract or GSA Schedule, are hereby on notice that use of this Software is subject to restricted rights, which are the same as, or similar to those specified above.

9. EXPORT COMPLIANCE

Exports of Ipswitch software fall under the jurisdiction of the U.S. Department of Commerce, Bureau of Industry and Security¹s Export Administration Regulations (EAR), 15 CFR 730-774. By installing this software, you hereby agree that any re-sale, re-export or transfer of this software will be in full compliance with the EAR and that you will not ship to sanctioned/embargoed countries or individuals/entities on a U.S. Government Agency Denied Persons List. Further, you agree that you will not use any Ipswitch software in the design, development, production, use, maintenance or repair of any article with defense or proliferation related end uses including but not limited to nuclear, chemical, biological or missile technology applications. Note that Export Control Classification numbers (ECCN¹s) for each Ipswitch product is available at http://www.ipswitch.com/company/export-compliance.aspx.

Should any term of this Agreement be declared void or unenforceable by any court of competent jurisdiction such declaration shall have no effect on the remaining terms hereof.

IPSWITCH, INC.
83 Hartwell Avenue
Lexington, MA 02421
(781) 676-5700
Fax: (781) 676-5710