End user agreement for N-central Network & Systems Management
Global End User License Agreement for N-central Software 8.0
NOTICE TO END USER: BY OPENING THE PRODUCT PACKAGE YOU HAVE ACCEPTED THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT. IN ORDER TO INSTALL THE SOFTWARE YOU MUST ACKNOWLEDGE YOUR ACCEPTANCE BY CLICKING THE ICON.
The purpose of this Global End User License Agreement ("License Agreement") is to set forth the terms and conditions under which you (the "End User") may use the software (defined below). If End User is a person with principal residence in the Americas (meaning North, South, and Central America), or an entity with principal place of business in the Americas, "N-able" shall mean N-able Technologies, Inc., a corporation organized pursuant to the laws of Ontario, with principal place of business at 450 March Road, 4th Floor, Ottawa, ON. "Principal residence" or "Principal place of business" shall mean the address N-able has of record for End User. For purposes of this License Agreement, N-able Affiliated Companies shall mean any person, branch, or entity controlled, directly or indirectly, by N-able Technologies, Inc., whether now existing or formed in the future. All references to "N-able" shall include the N-able Affiliated Companies.
THIS LICENSE AGREEMENT SETS FORTH THE TERMS AND CONDITIONS OF THE LICENSE FOR THE SOFTWARE. SOME THIRD-PARTY MATERIALS INCLUDED IN THE SOFTWARE MAY BE SUBJECT TO OTHER TERMS AND CONDITIONS INCLUDED IN A SEPARATE LICENSE AGREEMENT OR MATERIALS WHICH ACCOMPANY SUCH SOFTWARE.
The following definitions are applicable to this License Agreement:
"SOFTWARE" refers to the software program and all other materials, regardless of the PRODUCT MEDIA which embodies it and whether received contemporaneously with this License Agreement or thereafter, including fixes, updates, supplements, XTensions software, add-on components, validation codes, QLA and license files, if any, unless N-able provides other terms along with such software; "End User" means the individual or entity who purchased the SOFTWARE and who is entering into this License Agreement; "INSTALL" means to copy the SOFTWARE to a hard disk drive or similar storage device; "PRODUCT MEDIA" refers to the medium in which or on which the SOFTWARE is embodied or contained, whether on a disk(s), CD-ROM(s), digital file(s), or pursuant to technology now known or hereinafter developed; QLA refers to the multi-user license administration technology described in Section 3;
"USE" means to access, install, run, display, download, copy or otherwise benefit from using the functionality of the SOFTWARE; "N-able" means the entity granting this license to End User under the terms and conditions of this License Agreement.
1 Software license grant:
End User is granted a non-exclusive, non-transferable License to USE the SOFTWARE and documentation subject to the restrictions and terms set forth in this License Agreement. End Users who have purchased a Single-User License may INSTALL and USE the SOFTWARE on two desktop computers for non-concurrent use only. End Users who have purchased a multi-user License may INSTALL the SOFTWARE on the number of desktop computers they choose for their own use and allow USE of the SOFTWARE subject and pursuant to Section 3 (regarding the license administrator technology, QLA). End User is prohibited from sharing the SOFTWARE with a third party who is not subject to the terms of this Agreement. If this product does not contain license administration technology, then End Users who have purchased a multi-user License may INSTALL the SOFTWARE on the number of desktop computers and allow USE of the SOFTWARE by the number of users for which End User is licensed. Documentation received in electronic form may only be used and accessed by the number of users for which End User is licensed. Otherwise, documentation may not be copied, accessed by multiple users or distributed without N-able's written consent. End Users with multi-user licenses must install QLA as described in Section 3. QLA may be installed on a server and used over a network; provided, however, that End User may only access its Purchased Licenses and the permitted number of Auxiliary Licenses pursuant to Section 3. Other than as stated herein, End User may not INSTALL or USE the SOFTWARE on a distributed or multi-user computer system, such as a local area or wide area network, intranet, the Internet, or multi-user accessible computer, or any other computer or electronic device now known or hereinafter developed ("Device"); the SOFTWARE must be USED on a local hard drive only. The limitations/restrictions on USE contained herein apply to any indirect connections made through "multiplexing" or other hardware or software which pools or aggregates connections. A license for the SOFTWARE may not be shared or used concurrently. End User may not permit any Device to USE the SOFTWARE or the SOFTWARE'S User interface unless the Device has a separate license for the SOFTWARE. There are technological measures in the Software that are designed to prevent unlicensed or illegal use of the Software. You agree that we may use those measures. End User may make a single copy of the SOFTWARE as an archive copy, provided that it includes all notices and markings, including copyright, trademark, and other proprietary notices as on the original, and which may not be in USE at any time, unless the original is damaged beyond USE, and must remain in the possession and control of End User. Should the End User download or otherwise receive a digital copy of the SOFTWARE and/or documentation, and then be provided with the SOFTWARE and/or documentation in tangible media form, such as a CD-ROM, the End User acknowledges that use of the SOFTWARE and documentation is still subject to the foregoing restrictions. SOFTWARE which is "Not for Resale" or "NFR" as indicated on the product packaging, the product media and/or the serial number may not be resold, or otherwise transferred for value. If the SOFTWARE is for educational institutions or students, End user must meet N-able's qualifications for USE of such SOFTWARE.
The only right granted to End User is the right to use the software and accompanying documentation in accordance with this License Agreement. The SOFTWARE is licensed not sold. The SOFTWARE is protected by copyright and other intellectual property laws and treaties. N-able and its licensors own the title, copyright, and other intellectual property rights in the SOFTWARE. All rights not expressly granted to End User in this License Agreement are specifically reserved to N-able. End User does not receive or acquire any right, title, or interest to the SOFTWARE, or to any applicable patents, trademarks, copyrights, or trade secrets. End User may not remove or alter any proprietary notices, labels, or trademarks on the SOFTWARE or accompanying documentation. End User may not modify, translate, copy, reproduce, reverse engineer, disassemble, decompile, decrypt or otherwise derive source code from the SOFTWARE, any portion thereof or accompanying documentation, or use it as a basis for the preparation of other software programs or derivative works, or use it in any manner that infringes the intellectual property or other rights of N-able or any other party. The SOFTWARE and accompanying documentation may not be transmitted or accessed electronically, including via the Internet or any Device, rented, loaned, leased, sold, distributed, made available, directly or indirectly, for use by any other person or entity not covered by this License Agreement, used to provide commercial hosting or application service provider services or otherwise transferred, transmitted, or used without authorization under this License Agreement.
3 License administration technology:
This product may contain license administration technology ("QLA"). End Users with multi-user Licenses must install QLA. QLA is license administration technology which also allows the End User with multiple licenses the convenience to exceed the number of licenses which are legally licensed to End User ("Purchased Licenses") by a number which is specified by End User and agreed to by N-able ("Auxiliary Licenses"); provided, however, that End User pays the license fees which correspond to the number of Auxiliary Licenses which End User utilizes. End User acknowledges that QLA utilizes a secured communications link between End User and N-able, via the Internet or technology which may hereinafter become available, through which license files are made available to End User and information concerning End User's usage may be transmitted to N-able. End User may elect not to use Auxiliary Licenses in which case End User's rights are limited to Purchased Licenses. Use of Auxiliary Licenses is subject to N-able's consent and sole discretion. End User agrees that its use of Auxiliary Licenses shall be subject to the terms of this License Agreement. Upon the request of End User and with the consent of N-able, Auxiliary Licenses are made available to End User on a temporary basis subject to payment of applicable license fees. Once payment is received, N-able will make available to End User a new license file to reflect the revised number of Purchased Licenses. End User agrees to pay N-able for all Auxiliary Licenses which End User utilizes. Failure to pay or other violations of this Agreement may result in suspension or revocation, in N-able's sole discretion, with or without notice, of End User's ability to utilize current and future Auxiliary Licenses, in addition to all other rights and remedies available to N-able in law or equity. Auxiliary Licenses may contain technology designed to render them inoperable after a certain period of time. The inoperability of Auxiliary Licenses or the denial, suspension or revocation of End User's ability to utilize Auxiliary Licenses does not in itself affect End User's right to Purchased Licenses. Section 4 (regarding termination of this License Agreement) shall continue to apply.
End User agrees that all Purchased Licenses, are subject to the terms of this License Agreement. N-able assumes no liability arising from End User's use of or inability to use QLA, Auxiliary Licenses, or license files.
Any failure to comply with the terms and conditions of this License Agreement shall result in automatic termination of this license. Upon termination of this License Agreement for any reason, End User must destroy all copies and cease use of the SOFTWARE and accompanying documentation.
5 Consolidation of licenses:
Consolidation of multiple single-user licenses, multiple multi-user licenses, or a combination of both under one consolidated multi-user license may be possible under certain circumstances and in N-able's sole discretion. Consolidated license are subject to the restrictions on multi-user licenses contained herein. If the serial number of any single-user or multi-user SOFTWARE is covered by or merged into a new consolidated license, then the right of End User to use that single-user or multi-user Software under this License Agreement is replaced, terminated, and superseded by the right of End User to use the consolidated Software. End User then no longer has the right to use any single-user or multi-user SOFTWARE having a serial number covered by the consolidated license.
6 Communication of License Agreement:
End User agrees to communicate the terms and restrictions contained in this License Agreement to all persons under his or her employment, direction, or control who have access to the software or accompanying documentation.
7 Unauthorized use and compliance:
End User shall take reasonable efforts to prevent use of the Software by any person or entity other than End User. End User shall use all reasonable efforts to see that employees, agents, assigns, or other persons under the direction or control of End User who have access to the software or accompanying documentation abide by the terms and conditions of this License Agreement. End User agrees to notify N-able immediately in writing of any unauthorized use.
8 Limited warranty:
N-able warrants that the PRODUCTMEDIA will be free from defects for 90 days after purchase of the SOFTWARE. The sole and exclusive remedy for a defect in the PRODUCT MEDIA is for End User to notify N-able of the defect in writing within the respective warranty period, to return the PRODUCT MEDIA to N-able, and follow any other reasonable procedures that N-able may establish. N-able's sole obligation shall be to provide End User with a performing copy of the PRODUCTMEDIA within a reasonable time after receiving notification of the defect or to refund the purchase price and terminate this License Agreement, at N-able's option. The foregoing warranty does not apply if End User mishandles, alters, or improperly uses or stores the PRODUCTMEDIA.
9 Disclaimer of other warranties:
THE LIMITED WARRANTY SET FORTH IN SECTION 8 IS IN LIEU OF ANY OTHER WARRANTIES OR CONDITIONS OF ANY KIND, INCLUDING ANY WARRANTIES OR CONDITIONS PROVIDED BY DISTRIBUTORS OR RETAILERS OF THE SOFTWARE. EXCEPT AS SET FORTH IN SECTION 8,THE SOFTWARE IS PROVIDED "AS IS" WITH ALL FAULTS. ALL OTHER WARRANTIES AND CONDITIONS WHETHER EXPRESS, IMPLIED, STATUTORY, OR COLLATERAL, ARE DISCLAIMED (TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
LAW, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE), INCLUDING, WITHOUT LIMITATION, NON-INFRINGEMENT, COMPATIBILITY, CONDITION OF TITLE, CORRESPONDENCE TO DESIRED DESCRIPTION, THAT THE SOFTWARE IS ERROR-FREE OR WILL OPERATE UNINTERRUPTED, OR THAT ERRORS CAN OR WILL BE CORRECTED. IF AN IMPLIED WARRANTY OR CONDITION IS CREATED BY END USER'S STATE/JURISDICTION AND FEDERAL OR STATE/PROVINCIAL LAW PROHIBITS DISCLAIMER OF IT, END USER ALSO HAS AN IMPLIED WARRANTY OR CONDITION, BUT ONLY AS TO DEFECTS DISCOVERED DURING THE PERIOD OF THE LIMITED WARRANTY (90 DAYS) IN SECTION 8. AS TO DEFECTS DISCOVERED AFTER THE 90 DAY PERIOD, THERE IS NO WARRANTY OR CONDITION OF ANY KIND. N-able AND ITS LICENSORS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF RELIABILITY, AVAILABILITY, OR THAT THE SOFTWARE WILL BE UPDATED OR UPGRADED, OR ACCURACY OR COMPLETENESS OF RESPONSES, OF RESULTS OF WORKMANLIKE EFFORT, OF LACK OF VIRUSES, AND LACK OF NEGLIGENCE, ALL WITH REGARD TO THE SOFTWARE, AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES (IF ANY), INFORMATION, SOFTWARE AND RELATED CONTENT THROUGH THE SOFTWARE OR OTHERWISE ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE. Some jurisdictions, states, or provinces do not allow limitations on implied warranties, so the above limitation may not apply to particular End Users.
10 Software updates and upgrades:
At N-able's sole discretion, N-able may provide End User with updates and upgrades (to be referred to collectively as "Updates") to the SOFTWARE and retains the right to provide such Updates for a fee In order to Install and use an Update, End User must have a license from N-able to use the previous version. Upon Installation of the Update, End User may continue to use the previous version provided that the Update and the previous version are installed on the same computers, subject to the limitation set forth in Section 1 hereof. Upon installation of the Update, End User shall not transfer the previous version to a third party. Unless N-able provides other terms and conditions with an Update, the terms and conditions of this License Agreement shall continue to apply. End User may refuse to accept an Update. However, upon release of an Update, N-able may have no further obligation to support the previous version.
11 End User responsibility for the software and components:
End User is solely responsible for selection of the SOFTWARE and components to achieve End User's intended results or for particular applications and systems. N-able is not responsible for lost or stolen SOFTWARE.
12 Exclusion of damages/limitation of liability:
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT SHALL N-able OR ITS LICENSORS BE LIABLE TO END USER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, ANY LOST PROFITS, LOST TIME, LOST SAVINGS, LOST DATA, LOST CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY, INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, LOST FEES, OR EXPENSES OF ANY KIND AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATED TO THE INSTALLATION, USE OF OR INABILITY TO USE THE SOFTWARE, THE ACCOMPANYING DOCUMENTATION, OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES (IF ANY) IN ANY MANNER, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY. IN ANY EVENT, N-able'S LIABILITY RELATING TO THE SOFTWARE SHALL BE LIMITED TO THE MONEY PAID FOR THE SOFTWARE. These limitations will apply even if N-able or an authorized dealer has been advised of such possible damages. Some jurisdictions, states, or provinces do not allow the exclusion or limitation of incidental or consequential damages, so the limitation or exclusion included in this License Agreement may not apply to particular End Users. References to N-able in the foregoing Section shall include the N-able Affiliated Companies.
This License Agreement is intended to be interpreted in such a manner as to render it enforceable. In the event that any court, arbitration panel, or other competent authority determines that any provision of this License Agreement is not enforceable, such provision may be modified or limited in its effect to the extent necessary to cause it to be enforceable. If any provision cannot be so modified or limited, then such provision shall be severed, and the remainder of this License Agreement shall remain in full force and effect.
14. Dispute Resolution and Governing Law:
14.1 End Users in the United States - Arbitration. Any dispute, controversy, or claim arising out of or related to this License Agreement shall be settled by arbitration by a single neutral arbitrator who is a former state or federal judge. Unless the parties agree otherwise, the arbitration shall be conducted by Judicial Arbiter Group ("JAG") or any similar arbitration organization using retired state or federal judges if JAG is no longer in existence or is unable to conduct an arbitration in the venue selected by the parties. Venue shall be Denver, Colorado. The decision of the arbitrator shall be final, nonappealable and binding upon the parties, and it may be entered in any court of competent jurisdiction. The arbitrator shall be bound by the laws of the state of Colorado and all rules relating to the admissibility of evidence, including, without limitation, all relevant privileges and the attorney work product doctrine. The arbitrator shall have the power to grant equitable relief including attorney's fees and costs, where applicable under law and shall not be entitled to make an award of punitive damages. The obligation of the parties to submit any dispute arising under or related to this License Agreement to arbitration as provided in this Section shall survive the expiration or earlier termination of this License Agreement.