End User License Agreement
End User License Agreement
November 3, 2022
PLEASE READ THIS END USER LICENSE AGREEMENT CAREFULLY. NETSYNC NETWORK SOLUTIONS (“NETSYNC”) IS WILLING TO LICENSE THIS SOFTWARE (DEFINED BELOW) TO YOU ONLY UPON THE CONDITION THAT YOU PURCHASED THE SOFTWARE FROM AN APPROVED SOURCE AND THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS END USER LICENSE AGREEMENT PLUS ANY SUPPLEMENTAL LICENSE AGREEMENT ACCOMPANYING THE SOFTWARE OR MADE AVAILABLE AT THE TIME OF YOUR ORDER (COLLECTIVELY THE “AGREEMENT”). BY DOWNLOADING, INSTALLING, OR USING THE SOFTWARE, YOU AND THE ENTITY YOU REPRESENT (COLLECTIVELY REFERRED TO AS “CUSTOMER”) ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THE AGREEMENT, THEN DO NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE. THE AGREEMENT GOVERNS CUSTOMER’S USE OF THE SOFTWARE, EXCEPT TO THE EXTENT: (A) THERE IS A SEPARATE SIGNED CONTRACT BETWEEN CUSTOMER AND NETSYNC GOVERNING CUSTOMER’S USE OF THE SOFTWARE, OR (B) THE SOFTWARE INCLUDES A SEPARATE “CLICK-ACCEPT” LICENSE AGREEMENT OR THIRD PARTY LICENSE AGREEMENT AS PART OF THE INSTALLATION OR DOWNLOAD PROCESS GOVERNING CUSTOMER’S USE OF THE SOFTWARE. TO THE EXTENT OF A CONFLICT BETWEEN THE PROVISIONS OF THE FOREGOING DOCUMENTS, THE ORDER OF PRECEDENCE WILL BE (1) THE SIGNED CONTRACT, (2) THE CLICK-ACCEPT AGREEMENT OR THIRD PARTY LICENSE AGREEMENT, AND (3) THE AGREEMENT.
License
Conditioned upon compliance with the terms and conditions of the Agreement, Netsync grants to Customer a nonexclusive and nontransferable license to use for Customer’s internal business purposes the Software and the Documentation. This license is expressly conditioned on Customer’s having purchased the Software and Documentation from, and paid the required license fees to, an Approved Source. If Customer did not purchase the Software and Documentation from, or pay the required license fees to, an Approved Source, Customer may not use Software or Documentation for any purpose. An “Approved Source” means either Netsync or a third party authorized by Netsync to distribute or resell the Software within Customer’s territory to end users. “Software” means the computer programs, in object code format, as provided to Customer by an Approved Source, and any upgrades, updates, bug fixes or modified versions thereto (collectively, “Upgrades”), and any of the same which has been relicensed under the Netsync software transfer and re-licensing policy (as may be amended by Netsync from time to time), or backup copies of any of the foregoing. “Documentation” means written information (whether contained in user or technical manuals, training materials, specifications or otherwise) pertaining to the Software and made available by an Approved Source with the Software in any manner (including on CD-Rom, or on-line).
In order to use the Software, Customer may be required to input a registration number or product authorization key and register Customer’s copy of the Software to obtain the necessary license key or license file. Customer’s license to use the Software will be limited to, and Customer will not use the Software in excess of, a single hardware chassis or card or such other limitations as are set forth in the applicable Supplemental License Agreement or in the applicable purchase order which has been accepted by an Approved Source and for which Customer has paid to an Approved Source the required license fee (the “Purchase Order”). No other licenses are granted by implication, estoppel or otherwise. For evaluation or beta copies for which Netsync does not charge a license fee, the above requirement to pay license fees does not apply.
General Limitations
The Software and Documentation are licensed, not sold. Netsync retains ownership of all copies of the Software and Documentation. Customer acknowledges that the Software and Documentation contain trade secrets of Netsync or its suppliers or licensors. Except as otherwise expressly provided under the Agreement, Customer will have no right, and Customer specifically agrees not to:
(i) transfer, rent, lease, sell, redistribute or assign or sublicense its license rights to any other person or entity (other than in compliance with any Netsync relicensing/transfer policy then in force). Customer acknowledges that any attempted transfer, assignment, sublicense or use will be void);
(ii) make error corrections to or otherwise modify or adapt the Software or create derivative works based upon the Software, or permit third parties to do the same;
(iii) reverse engineer or decompile, decrypt, disassemble or otherwise reduce the Software to human-readable form, except to the extent otherwise expressly permitted under applicable law notwithstanding this restriction or except to the extent that Netsync is legally required to permit such specific activity pursuant to any applicable open source license;
(iv) publish any results of benchmark tests run on the Software;
(v) use or permit the Software to be used to perform services for third parties, whether on a service bureau or time sharing basis or otherwise, without the express written authorization of Netsync; or
(vi) disclose, provide, or otherwise make available trade secrets contained within the Software and Documentation in any form to any third party without the prior written consent of Netsync. Customer will implement reasonable security measures to protect such trade secrets.
To the extent required by applicable law, and at Customer’s written request, Netsync will provide Customer with the interface information needed to achieve interoperability between the Software and another independently created program, on payment of Netsync’s applicable fee, if any. Customer will observe strict obligations of confidentiality with respect to such information and will use such information in compliance with any applicable terms and conditions upon which Netsync makes such information available.
Software, Upgrades and Additional Copies
NOTWITHSTANDING ANY OTHER PROVISION OF THE AGREEMENT: (1) CUSTOMER HAS NO LICENSE OR RIGHT TO MAKE OR USE ANY ADDITIONAL COPIES OR UPGRADES UNLESS CUSTOMER, AT THE TIME OF MAKING OR ACQUIRING SUCH COPY OR UPGRADE, ALREADY HOLDS A VALID LICENSE TO THE ORIGINAL SOFTWARE AND HAS PAID THE APPLICABLE FEE TO AN APPROVED SOURCE FOR THE UPGRADE OR ADDITIONAL COPIES; AND (2) THE MAKING AND USE OF ADDITIONAL COPIES IS LIMITED TO NECESSARY BACKUP PURPOSES ONLY.
Proprietary Notices
Customer agrees to maintain and reproduce all copyright, proprietary, and other notices on all copies, in any form, of the Software in the same form and manner that such copyright and other proprietary notices are included on the Software. Except as expressly authorized in the Agreement, Customer will not make any copies or duplicates of any Software without the prior written permission of Netsync.
Term and Termination
The Agreement and the license granted herein will remain effective until terminated. Customer’s rights under the Agreement will terminate immediately without notice from Netsync if Customer fails to comply with any provision of the Agreement. Upon termination, Customer will destroy all copies of Software and Documentation in its possession or control. Any terms of the Agreement that expressly survive termination or expiration, or by their nature ought to survive termination or expiration, will survive, including but not limited to provisions regarding Customer’s confidentiality obligations, disclaimers, exclusions and limitation of liability, indemnification, effect of termination, records maintenance and audit, controlling law and jurisdiction, notices and other provisions of interpretation and enforcement.
Records and Audit
Customer will maintain books, records and accounts reflecting Customer’s use of Software and Documentation, and Customer grants to Netsync and its independent accountants the right to examine Customer’s books, records and accounts during Customer’s normal business hours to verify compliance with this Agreement. In the event such audit discloses non-compliance with this Agreement, Customer will promptly pay to Netsync the appropriate license fees, plus the reasonable cost of conducting the audit.
Export, Re-Export, Transfer and Use Controls
The Software, Documentation and technology or direct products thereof supplied by Netsync under the Agreement (“Software and Technology”) are subject to export controls under the laws and regulations of the United States (“U.S.”) and any other applicable countries’ laws and regulations. Customer will comply with such laws and regulations governing export, re-export, import, transfer and use of Software and Technology and will obtain all required U.S. and local authorizations, permits, or licenses. Netsync and Customer each agree to provide the other information, support documents, and assistance as may reasonably be required by the other in connection with securing authorizations or licenses.
U.S. Government End User Purchasers
The Software and Documentation qualify as “commercial items,” as that term is defined at Federal Acquisition Regulation (“FAR”) (48 C.F.R.) 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in FAR 12.212. Consistent with FAR 12.212 and DoD FAR Supp. 227.7202-1 through 227.7202-4, and notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which the Agreement may be incorporated, Customer may provide to a government end user or, if the Agreement is direct, the government end user will acquire, the Software and Documentation with only those rights set forth in the Agreement. Use of either the Software or Documentation or both constitutes agreement by the government that the Software and Documentation are “commercial computer software” and “commercial computer software documentation,” and constitutes acceptance of the rights and restrictions herein.
Identified Components; Additional Terms
The Software may contain or be delivered with one or more components, which may include third-party components, identified by Netsync in the Documentation, readme.txt file, or third-party click-to-accept, or on the web or elsewhere (the “Identified Component(s)”) as being subject to different license agreement terms, disclaimers of warranties, limited warranties or other terms and conditions (collectively, “Additional Terms”) than those set forth herein. Customer agrees to the applicable Additional Terms for any such Identified Component(s).
Limited Warranty
Subject to the limitations and conditions set forth herein, Netsync warrants that commencing from the date of delivery to Customer, and continuing for a period of ninety (90) days: (a) the media on which the Software is furnished (if not delivered electronically) will be free of defects in materials and workmanship under normal use; and (b) the Software substantially conforms to the Documentation. Except for the foregoing, the Software is provided “AS IS”. This limited warranty extends only to the Software purchased from an Approved Source by the first registered end user. Customer’s sole and exclusive remedy and the entire liability of Netsync and its suppliers under this limited warranty will be (i) replacement of defective media and/or (ii) at Netsync’s option, repair, replacement, or refund of the purchase price of the Software, in both cases subject to the condition that any error or defect constituting a breach of this limited warranty is reported to the Approved Source supplying the Software to Customer, within the warranty period. Netsync or the Approved Source supplying the Software to Customer may, at its option, require return of the Software and/or Documentation as a condition to the remedy. In no event does Netsync warrant that the Software is error free or that Customer will be able to operate the Software without problems or interruptions. In addition, due to the continual development of new techniques for intruding upon and attacking networks, Netsync does not warrant that the Software or any equipment, system or network on which the Software is used will be free of vulnerability to intrusion or attack.
Restrictions
This warranty does not apply if the Software or any other equipment upon which the Software is authorized to be used (a) has been altered, except by Netsync or its authorized representative; (b) has not been installed, operated, repaired, or maintained in accordance with instructions supplied by Netsync; (c) has been subjected to abnormal physical or electrical stress, abnormal environmental conditions, misuse, negligence, or accident; or (d) is licensed for beta, evaluation, testing or demonstration purposes. The Software warranty also does not apply to (e) any temporary Software modules; (f) any Software that Netsync expressly provides on an “AS IS” basis; (g) any Software for which an Approved Source does not receive a license fee; and (h) Software supplied by any third party which is not an Approved Source.
DISCLAIMER OF WARRANTY
EXCEPT AS SPECIFIED IN THIS WARRANTY SECTION, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SATISFACTORY QUALITY, NON-INTERFERENCE, ACCURACY OF INFORMATIONAL CONTENT, OR ARISING FROM A COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW AND ARE EXPRESSLY DISCLAIMED BY NETSYNC, ITS SUPPLIERS AND LICENSORS. TO THE EXTENT THAT ANY OF THE SAME CANNOT BE EXCLUDED, SUCH IMPLIED CONDITION, REPRESENTATION AND/OR WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD REFERRED TO IN THE “LIMITED WARRANTY” SECTION ABOVE. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, THE ABOVE LIMITATION MAY NOT APPLY IN SUCH STATES. THIS WARRANTY GIVES CUSTOMER SPECIFIC LEGAL RIGHTS, AND CUSTOMER MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION. THIS DISCLAIMER AND EXCLUSION WILL APPLY EVEN IF THE EXPRESS WARRANTY SET FORTH ABOVE FAILS OF ITS ESSENTIAL PURPOSE.
LIMITATIONS OF LIABILITY
IN NO EVENT WILL NETSYNC OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER, RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, OR ANY DAMAGES RELATING TO OR ARISING FROM LOST PROFITS, LOST REVENUE, LOST OR DAMAGED DATA, BUSINESS INTERRUPTION, LOSS OF CAPITAL, OR LOST GOODWILL, REGARDLESS OF WHETHER NETSYNC OR ITS AFFILIATES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR IF SUCH DAMAGE COULD HAVE BEEN REASONABLY FORESEEN. THE MAXIMUM AGGREGATE LIABILITY OF NETSYNC TO CUSTOMER ARISING OUT OF THIS AGREEMENT WILL NOT EXCEED THE PRICE PAID BY CUSTOMER TO ANY APPROVED SOURCE FOR THE SOFTWARE THAT GAVE RISE TO THE CLAIMS.
THE LIMITATIONS OF LIABILITY SET FORTH ABOVE APPLY REGARDLESS OF WHETHER THE LIABILITY IS BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTIES, OR ANY OTHER LEGAL THEORY, AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY.
NOTHING IN THE AGREEMENT WILL LIMIT THE LIABILITY OF NETSYNC OR ITS AFFILIATES FOR PERSONAL INJURY OR DEATH CAUSED BY THEIR NEGLIGENCE, FOR FRAUDULENT MISREPRESENTATION, OR FOR ANY OTHER LIABILITY WHICH CANNOT BE EXCLUDED UNDER APPLICABLE LAW.
BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO CUSTOMER.
CUSTOMER ACKNOWLEDGES AND AGREES THAT NETSYNC HAS SET ITS PRICES AND ENTERED INTO THE AGREEMENT IN RELIANCE UPON THE DISCLAIMERS OF WARRANTY AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE SAME REFLECT AN ALLOCATION OF RISK BETWEEN THE PARTIES (INCLUDING THE RISK THAT A CONTRACT REMEDY MAY FAIL OF ITS ESSENTIAL PURPOSE AND CAUSE CONSEQUENTIAL LOSS), AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
Controlling Law, Jurisdiction
The Agreement (including the warranties herein) are controlled by and construed under the laws of the State of Texas, United States of America, notwithstanding any conflicts of law provisions, and the state and federal courts of Texas will have exclusive jurisdiction over any claim arising under the Agreement.
Miscellaneous
The parties specifically disclaim the application of the UN Convention on Contracts for the International Sale of Goods. If any portion hereof is found to be void or unenforceable, the remaining provisions of the Agreement will remain in full force and effect. Except as expressly provided herein, the Agreement constitutes the entire agreement between the parties with respect to the license of the Software and Documentation and supersedes any conflicting or additional terms contained in any Purchase Order or elsewhere, all of which terms are excluded.
