NetAlly End User License Agreement
LINKRUNNER LLC DBA NETALLY, ON BEHALF OF ITSELF AND ITS SUBSIDIARIES AND AFFILIATES (COLLECTIVELY, “NETALLY”), WILL LICENSE PRODUCTS TO YOU ONLY IF YOU ACCEPT THIS END USER LICENSE AGREEMENT (“AGREEMENT”). CAREFULLY READ THIS AGREEMENT BEFORE USING THE PRODUCTS. By installing or using the Product(s), you indicate that you understand this Agreement and accept and agree to comply with all of its terms. If you do not accept all of the terms of this Agreement, then DO NOT INSTALL OR USE THE PRODUCTS.
“APIs” means the software application interfaces and workflow methods made generally available by Licensor in certain Products to enable integration, implementation, and interoperability with third party hardware and software.
“Customer Data” means information that you upload or use in conjunction with your use of the Products
“Documentation” means any installation guides, reference guides, operation manuals and release notes provided with the Product in printed, electronic, or online form.
“Evaluation Product” means software contains a license key which disables the Software after 30 days, or other term as agreed to by the parties, and which will render the Evaluation Product unusable.
“Hardware” means hardware products generally available on Licensor’s price list.
“Licensor” means either NetAlly or the NetAlly affiliate from whom you are receiving the Product or Services, either directly or via an authorized Licensor reseller.
“Maintenance” means maintenance and support services for the Products that Licensor makes available upon purchase in accordance with Licensor’s then-current terms located at https://www.netally.com/terms-and-conditions.
“Product” means Software and/or Hardware.
“Quotation” means the document under which Licensor offers for sale and license its Products, Maintenance, and other services.
“Software” means Licensor proprietary programs in object code and the firmware contained on the Hardware identified in an applicable Quotation. In the event you purchase Maintenance, Software includes any updates, maintenance releases, enhancements, corrections, bug fixes, and modifications made to the Software that are provided to Licensor customers generally as part of Maintenance.
“Services” means Maintenance as well as any other services offered by Licensor from time to time.
Subject to payment of the applicable license fee and the terms set forth in this Agreement, the Documentation and the limits specified in the applicable Quotation,
(a) Software License: Licensor grants you a limited, non-exclusive, non-transferable license to use the Software and the Documentation for your own internal business purposes
(b) Hardware Sale: Subject to the terms and conditions of this Agreement, Licensor sells to Customer the Hardware specified in an applicable Quotation;
(c) Documentation: Licensor grants you a license to copy and use the Documentation solely for your own internal business purposes;
(d) Evaluation License: Licensor hereby grants you a temporary, revocable, non-exclusive, non-transferable license to use the Evaluation Product set forth in the applicable Licensor Evaluation Request Form solely for internal testing, evaluation, or demonstration purposes. If you choose not to purchase a license for the Evaluation Product, the Evaluation Product must be removed from your system(s) and all permitted copies of such Evaluation Product immediately destroyed. A Return Materials Authorization number (“RMA #”) for any Hardware Evaluation Product must be obtained prior to return of such Product. Upon completion of the evaluation period and before you ship Hardware Evaluation Products to Licensor you must comply with Section 14.
(e). Pre-Released Products. Pre-Released Product. If the Product you have received with this license is not yet commercially available (“Pre-Released Product”), then Licensor grants you a temporary, revocable, non-exclusive, non-transferable license to use the Pre-Released Product and the associated Documentation, if any, as provided to you by Licensor solely for internal evaluation purposes. Licensor may terminate your right to use the Pre-Released Product at any time at Licensor’s discretion. Your Use of the Pre-Released Product is limited to 30 days unless otherwise agreed to in writing by Licensor. You acknowledge and agree that (i) Licensor has not promised or guaranteed to you that the Pre-Released Product will be announced or made available to anyone in the future; (ii) Licensor has no express or implied obligation to you to announce or introduce the Pre-Released Product; (iii) Licensor may not introduce a product similar to or compatible with the Pre-Released Product; and (iv) any use of the Pre-Released Product or any product associated with the Pre-Released Product is entirely at your own risk. During the term of this Agreement, if requested by Licensor, you will provide feedback to Licensor regarding use of the Pre-Released Product,. You will not disclose any features or functions of any Pre-Released Product until Licensor makes the Pre-Released Product publicly available.
(f) API License. Licensor grants you a limited, non-exclusive, non-transferable license to use the API, together with applicable documentation, any sample code, and any sample applications provided with the API, solely in connection with the Products for your internal business purposes; provided that you may not use the API in connection with developing a product or service that competes with Products.
(g) License Restrictions. Except as required by law, you will not, and will not cause or permit others to, derive the source code of the Software, or reverse engineer, disassemble, or de-compile the Products. You may not (i) create derivative works of the Software, (ii) lend, rent, lease, assign, sublicense, and/or make available through timesharing or service bureau the Software, or (iii) transfer the Software or provide third party access to the Software.
(i) Ownership. NetAlly and its third-party licensors (such third-party licensors, the “Suppliers”) retain all right, title, and interest in and to the Products, Third Party Technology and/or APIs. You retain all right, title and interest in and to the Customer Data.
3.1. Term. This Agreement shall continue unless terminated pursuant to this Section 3; provided that the applicable subscription term for any licenses purchased hereunder shall continue for the period of time specified in the applicable Quotation.
3.2. Termination. Either party may terminate this Agreement immediately upon providing written notice of breach to the other Party, if such other Party materially breaches any of its obligations hereunder but fails to cure such breach within a period of thirty (30) days following receipt of such written notice.
3.3. Effect of Termination. Upon any termination of this Agreement: (a) all licenses granted hereunder shall immediately terminate, (b) you will either return the Software, Documentation, and Copies or, with Licensor’s prior consent, destroy the Software, Documentation, and Copies, and (c) the following sections shall survive: 1, 2(e), 2(g), 3.3, 4, 5(d), 5(e), 6 and 10.
“Confidential Information” shall mean any and all non-public technical, financial, commercial or other confidential or proprietary information, Services, Product roadmaps, pricing, software code, Documentation, techniques and systems, and any and all results of benchmark testing run on the Products. Neither party will disclose Confidential Information to any third party except to the extent such disclosure is necessary for the performance of this Agreement, or it can be documented that any such Confidential Information is in the public domain and generally available to the general public without any restriction. Each party will use the same degree of care to protect Confidential Information as you use to protect your own confidential information but in no event less than reasonable care.
(a) Hardware. Licensor warrants that the Hardware will be free from material defects for a period of twelve (12) months following the date of shipment of the Hardware (“Hardware Warranty Period”).
(b) Software. Licensor warrants that the Software will conform to the Documentation for a period of ninety (90) days following the date when first made available to you for download (“Software Warranty Period”).
(c) Remedy. If during the Software Warranty Period or Hardware Warranty Period, a nonconformity is reported to Licensor, Licensor, at its option, will use commercially reasonable efforts to repair or replace the non-conforming Software or Hardware. This remedy is your sole and exclusive remedy, and Licensor’s sole liability for a breach of warranty contained in this Section 5.
(d) Warranty Exclusions. The warranties set forth in Section 5 do not apply to any failure of the Software or Hardware caused by (i) your failure to follow Licensor’s installation, operation, or maintenance instructions, procedures, or Documentation; (ii) your mishandling, misuse, negligence, or improper installation, de-installation, storage, servicing, or operation of the Product; (iii) modifications or repairs not authorized by Licensor; (iv) use of the Products in combination with equipment or software not supplied by Licensor or authorized in the Documentation; and (v) power failures or surges, fire, flood, accident, actions of third parties, or other events outside Licensor’s reasonable control. Licensor cannot and does not warrant the performance or results that may be obtained by using the Products, nor does Licensor warrant that the Products are appropriate for your purposes or error-free.
(e) Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES STATED IN THIS SECTION 5, LICENSOR DISCLAIMS ALL WARRANTIES ON MERCHANDISE SUPPLIED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
IN NO EVENT WILL LICENSOR OR ITS LICENSORS OR SUPPLIERS BE LIABLE FOR SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF USE, LOSS OF DATA, BUSINESS INTERRUPTION, OR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF. IN NO EVENT WILL THE CUMULATIVE LIABILITY OF LICENSOR EXCEED THE AMOUNTS PAID OR PAYABLE TO LICENSOR FOR THE APPLICABLE PRODUCT OR SERVICE THAT GAVE RISE TO SUCH CLAIM.
You will comply, at your own expense, with all laws, regulations, rules, and ordinances of any governmental body, department, or agency that apply to or result from your obligations under this Agreement. You hereby represent and warrant that neither the Products, nor any related technical information, data, documents, and materials, nor any derivatives, will be exported, re-exported, diverted, transferred, or disclosed, directly or indirectly, to any country or to any national or resident thereof, except as authorized and permitted by all applicable laws and regulations. You will cooperate with Licensor in executing documents or licenses necessary to comply with these laws and regulations and with any related audit or inspection.
This Agreement and the Quotation(s) constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all prior agreements, arrangements, and understandings between the parties regarding such subject matter, except where the parties have a signed master purchase agreement or similar contract (“Contract”), in which case such Contract will govern. Any conflicting or additional terms in your purchase orders or other documentation are expressly rejected. This Agreement may be modified only in writing, signed by authorized representatives of both parties. No course of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. No failure of either party to exercise any power or right hereunder or to insist upon strict compliance with the terms of this Agreement, and no custom or practice of the parties at variance with the terms hereof, will constitute a waiver of either party’s right to demand compliance with the terms of this Agreement. If any of the provisions of this Agreement are determined to be invalid, illegal, or unenforceable, such provisions will be severed from this Agreement, and the remainder of this Agreement will be valid and enforceable to the extent permitted by applicable law, provided that the intent of the parties is not materially impaired. The parties will use their best efforts to replace the invalid or unenforceable provision by a provision that, to the extent permitted by law, achieves the purposes intended under the invalid or unenforceable provision.
Agreement will be governed by the laws of the State of Delaware without regard to choice of law rules, and User Partner hereby submits to the jurisdiction of the federal and state courts located in the State of Colorado and the applicable laws and rules governing service of process. The parties agree that the United Nations Convention on International Sale of Goods Acts will not apply to this Agreement. Except for the obligation to make payments, non-performance of either party will be excused to the extent that performance is rendered impossible by strike, fire, flood, acts of God, governmental acts or orders or restrictions, act of terrorism, war, or any other reason where failure to perform is beyond the reasonable control of the non-performing party and not due to its fault or negligence. Licensor may conduct, during normal business hours, an audit of your use of the Software, including any Third-Party Materials contained therein, as well as applicable records and computers, to verify your compliance with the terms and conditions of this Agreement. Licensor may provide the results of any such audit to Suppliers of Third-Party Materials. You will not directly or indirectly sell, transfer, assign, or delegate in whole or in part this Agreement, or any rights, duties, obligations or liabilities under this Agreement, to any third party, including to any affiliated entity, without the prior written consent of Licensor. Any attempted assignment in violation of the foregoing shall be null and void.