End user agreement for AdventNet Agent Toolkit C Edition
PLEASE READ THE FOLLOWING LICENSE AGREEMENT CAREFULLY. ANY USE OF SOFTWARE DOWNLOADED OR ORDERED FROM ADVENTNET IS PERMITTED ONLY UNDER LICENSE WITH ADVENTNET. BY DOWNLOADING THIS SOFTWARE YOU AGREE TO BE BOUND BY THE TERMS OF THIS LICENSE AGREEMENT. INDICATE YOUR ACCEPTANCE OF THE TERMS OF THIS AGREEMENT BY CLICKING ON THE "I AGREE WITH THE LICENSING TERMS" BUTTON.
This Agreement ("Agreement") is made by and between AdventNet, Inc., (hereinafter "AdventNet") and any person (collectively "you", "your" or "I") who completes the download form for use of the AdventNet Software ("Software").
1. LICENSE TERMS.
This Software can be downloaded for Evaluation, Development or Production use upon the following terms:
1(a) Evaluation Use:The terms of this section 1(a) are applicable to you if you are an Evaluation Use Customer. Subject to the terms of this Agreement, AdventNet grants to you a non-exclusive, non-transferable, Evaluation license for trial and evaluation of the Software, in binary object code form, for a period of Thirty (30) days from the date of download. You may use any third party software products or modules supplied by AdventNet solely with the Software, unless the licensing terms of the third party software products or modules specify otherwise. You may not disclose the results of software performance benchmarks to any third party without AdventNet's prior written consent.
This license begins upon downloading and ends Thirty (30) days thereafter ("Evaluation Period"). When the license expires you must stop using the Software. You are forbidden from using the Software for any other use or otherwise offering it for resale under the terms of this section 1(a). AdventNet retains all rights not specifically granted to you herein.
1(b) Development Use: The terms of this section 1(b) are applicable to you if you are a Development Use Customer. Subject to the terms of this Agreement, AdventNet grants to you a non-exclusive, non-transferable, fee-bearing license solely for Development use of the Software, in object code form, for the number of users, the number of CPUs and at the sites, all as specified on your Purchase Order. You may use any third party software products or modules supplied by AdventNet solely with the Software, unless the licensing terms of the third party software products or modules specify otherwise. You may not disclose the results of software performance benchmarks to any third party without AdventNet's prior written consent. Additional restrictions with respect to the third party software, if any, will be delivered to you along with your license key.
You are forbidden from using the Software for any other use or otherwise offering it for resale under the terms of this section 1(b). If you integrate the Software into an application and intend to resell the resulting integrated application you must contact us to obtain the appropriate distribution license. AdventNet retains all rights not specifically granted to you herein.
1(c) Production Use: The terms of this section 1 (c) are applicable to you if you are a Production Use Customer. Subject to the terms of this Agreement, AdventNet grants to you a non-exclusive, non-transferable, fee-bearing license solely for the Production use of the Software, in object code form, for the number of users, the number of CPUs and at the sites, all as specified on your Purchase Order. You may use any third party software products or modules supplied by AdventNet solely with the Software, unless the licensing terms of the third party software products or modules specify otherwise. You may not disclose the results of software performance benchmarks to any third party without AdventNet's prior written consent. Additional restrictions with respect to the third party software, if any, will be delivered to you along with your license key.
If you integrate the Software into an application and intend to resell the resulting integrated application you must contact us to obtain the appropriate distribution license. AdventNet retains all rights not specifically granted to you herein.
1(d) If you are a Development Use Customer or a Production Use Customer, in addition to sections 1(b) and 1(c) above, the following terms are also applicable to you. You may make a reasonable number of copies of the Software and related Documentation (provided that all Copyright and other Proprietary notices of AdventNet and its licensors are reproduced), solely for archival and emergency back-up purposes, and disaster recovery testing purposes. If you would like to alter the number of Users, or number or identity of Sites and Servers indicated on your Purchase Order, you must contact AdventNet in writing for our approval; you may be subject to additional fees.
2. LICENSE FEES.
2.1 In consideration of the applicable license(s) granted pursuant to sections 1(b) or 1 (c), you agree to pay AdventNet the applicable License fee(s) within thirty (30) days of issuance of AdventNet's Invoice. All charges and fees provided for in this Agreement are exclusive of and do not include any taxes, duties or similar charges imposed by any Government ("Taxes"). You agree to pay or reimburse AdventNet for all such Taxes (other than taxes on the net income of AdventNet).
2.2 If you are outside the United States, you agree that the amounts to be remitted to AdventNet are the actual amounts due without withholding taxes or other assessments by authorities anywhere in the foreign location, which withholding taxes or assessments you agree to pay. You will promptly furnish AdventNet with certificates evidencing payment of such amounts.
3. ANNUAL MAINTENANCE AND SUPPORT.
You must purchase annual Maintenance and Support from AdventNet in order to qualify for the Maintenance and Support Services described in this Section. AdventNet will invoice you 15 days prior to the end of every year during which a valid maintenance and support fee has been paid by you, unless you have specifically informed AdventNet in writing to cancel your maintenance, forty-five (45) days prior to the end of such year.
3.1 Maintenance and Support Services.Maintenance and Support means that AdventNet will provide: (a) Software updates, (b) online access to technical documentation, and (c) email support for problem resolution, including (i) clarification of functions and features; (ii) clarification of documentation; (iii) technical support and guidance in the operation of the Software; and (iv) software error analysis and correction.
Upgrades or major releases are not included as part of Annual Maintenance and Support contract. AdventNet will use commercially reasonable efforts to provide error corrections or work-arounds for then most severe errors as soon as possible and based upon AdventNet classification of the severity of the error. Expanded support or technical assistance is available per request at an additional charge in accordance with AdventNet's then-current policy.
Maintenance and Support will be provided only with respect to versions of the Software that, in accordance with AdventNet policy, are then being supported by AdventNet.
3.2 Your Responsibilities.You agree to provide AdventNet with reasonable access to your personnel and equipment, if necessary during normal business hours in order to provide Maintenance and Support. You agree to document and promptly report all errors or malfunctions of the Software to AdventNet.
Any amounts not paid when due (including License Fees and Maintenance and Support Fees) will be subject to interest at the lesser of 1.5% per month or the highest amount permissible under applicable law.
5. LIMITED WARRANTY/LIMITATIONS ON LIABILITY.
5.1 Limited Warranty for Certain Uses. With respect to the Software licensed under sections 1(b) or 1(c) (i.e., Development Use or Production Use, respectively and not Evaluation Use) AdventNet warrants that the Software will perform in substantial accordance with its documentation for a period of thirty (30) days from the date you receive the Software. If during this time period the Software does not perform as warranted, AdventNet shall, at its option, undertake to (a) correct the Software, (b) replace such Software free of charge or, if neither (a) nor (b) is commercially practicable, terminate this agreement and refund to you the License Fee. This warranty will not apply if the Software has not been properly installed, used outside the scope of the applicable license, modified, altered or operated in an unwarranted environment.
THE FOREGOING IS ADVENTNET'S SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY FOR BREACH OF THIS WARRANTY.
5.2 No Other Warranties. EXCEPT AS PROVIDED IN SECTION 5.1, THE SOFTWARE IS PROVIDED "AS-IS"; ADVENTNET MAKES NO REPRESENTATION OR WARRANTIES, EXPRESS OR IMPLIED WITH RESPECT TO THE SOFTWARE, INCLUDING WITHOUT LIMITATION WARRANTIES OF FITNESS FOR A PARTICULAR USE OR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, OR THAT THE SOFTWARE WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE, AND ADVENTNET HEREBY DISCLAIMS ALL SUCH REPRESENTATIONS AND WARRANTIES. ADVENTNET MAKES NO REPRESENTATION ABOUT THE SUITABILITY OF THE SOFTWARE OR ABOUT THE ACCURACY OF ANY CONTENT OR INFORMATION MADE ACCESSIBLE BY THE SOFTWARE.
5.3 Limitations on Liability.
5.3(a) With Respect to Evaluation Use Customers. EVALUATION USE SOFTWARE IS PROVIDE GRATUITOUSLY AND, THEREFORE, ADVENTNET AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR ANY DAMAGES (INCLUDING DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL AND SPECIAL DAMAGES) UNDER ANY THEORY OF LIABILITY (INCLUDING TORT CONTRACT, OR ANY OTHER THEORY) WHETHER SUFFERED BY YOU OR ANY OTHER USER OF THE SOFTWARE, OR ANY THIRD PARTY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
5.3(b) With Respect to Development Use Customers and Production Use Customers. WITH RESPECT TO SOFTWARE PROVIDED UNDER THE TERMS OF A DEVELOPMENT USE LICENSE OR PRODUCTION USE LICENSE, ADVENTNET AND ITS SUPPLIERS SHALL NOT BE LIABLE, UNDER ANY THEORY OF LIABILITY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), CONTRACT, OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES ARISING OUT OF YOUR USE OF THE SOFTWARE, OR THE USE OF THE SOFTWARE BY ANY END USER, USER, DISTRIBUTOR, OR ANY THIRD PARTY, OR IN ANY OTHER WAY ARISING OUT OF THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, OR COST OF COVER. ADVENTNET'S CUMULATIVE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT OF LICENSE FEES PAID BY YOU TO ADVENTNET HEREUNDER FOR THE SOFTWARE GIVING RISE TO SUCH LIABILITY.
Some States do not permit disclaimers of certain warranties or limitations on certain types of liability under certain circumstances; consequently some of the foregoing disclaimers and limitations may not be applicable to you, in whole or in part.
6. SOFTWARE CHANGES.
AdventNet reserves the right at any time not to release or to discontinue release of any Software and to alter prices, features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of the Software.
All ownership rights, Title and Intellectual Property rights in and to the Software and Documentation shall remain the sole and exclusive property of AdventNet and/or its Licensors. You agree to abide by the copyright law and all other applicable laws of the United States. You acknowledge that the Software contains valuable confidential information and trade secrets of AdventNet and/or its Licensors; therefore you agree not to modify the software, or attempt to decipher, decompile, disassemble or reverse engineer the Software or assist or encourage any third party in doing so.
8.1 AdventNet agrees to indemnify and defend you from and against any and all claims, actions or proceedings, arising out of any claim that the Software infringes or violates any U.S. patent, copyright or trade secret right of any third party; so long as you provide: (i) prompt written notice to AdventNet of such claim; (ii) cooperate with AdventNet in the defense and/or settlement thereof, at AdventNet's expense; and, (iii) allow AdventNet to control the defense and all related settlement negotiations.
8.2 If it is, or if in the reasonable opinion of AdventNet it is probable that it will be, determined by a court of competent jurisdiction that such Software or the sale or use thereof infringes any patent, copyright, trade secret or trademark of a third party or if AdventNet is enjoined from distributing such Software, then AdventNet, at its sole option and expense, may: (i) procure for you the rights and to the same extent as those granted under this Agreement; (ii) replace such Software with other software, which complies with the specification of the Software; or, (iii) modify the Software, to avoid infringement while continuing to have the Software meet the Specification or (iv) terminate this Agreement and return to you your license fee, less an amount commensurate with your period of use of the Software, as amortized over a three year period.
8.3 You agree that this Section 8 represents AdventNet's sole obligation to you and shall be your sole and exclusive remedy pursuant to this Agreement for intellectual property infringement.
8.4 Limitations. AdventNet shall have no indemnity obligation for claims of infringement to the extent resulting or alleged to result from: (i) any combination, operation, or use of any Software with any programs or equipment not supplied by AdventNet; (ii) any modification of the Software by a party other than AdventNet; and (iii) your failure, within a reasonable time frame, to implement any replacement or modification of Software provided by AdventNet.
9. TERM AND TERMINATION.
9.1 This Agreement will take effect upon submission of your download form for the Software, and will remain in force until terminated in accordance with this Agreement. This Agreement may be terminated by you upon thirty (30) days' prior written notice to AdventNet or by destroying or returning to us all copies and partial copies of the Software and Documentation under your control; provided that no such termination will entitle you to a refund of any portion of the License Fee. AdventNet may, by written notice to you, terminate this Agreement immediately if any of the following events ("Termination Events") occur: (a) you fail to pay any amount due AdventNet within thirty (30) days after AdventNet gives you written notice of such nonpayment; or (b) you are in material breach of any non-monetary provision of this Agreement, which breach, if capable of being cured, is not cured within thirty (30) days after AdventNet gives you written notice thereof.
9.2 Termination of this Agreement will not affect the provisions relating to the payment of amounts due, or provisions limiting or disclaiming AdventNet's liability, which provisions will survive termination of this Agreement.
9.3 Within thirty (30) days after the date of termination or discontinuance of this Agreement for any reason whatsoever, you shall destroy the Software and all copies, in whole or in part, all Documentation relating thereto, and any other Confidential Information in its possession that is in tangible form.
10. UNITED STATES GOVERNMENT RIGHTS.
The Software provided under this Agreement is commercial computer software developed exclusively at private expense, and in all respects are proprietary data belonging solely to AdventNet.
10.1 Department of Defense End Users: If the Software is acquired by or on behalf of agencies or units of the Department of Defense (DOD), then, pursuant to DoD FAR Supplement Section 227.7202 and its successors (48 C.F.R. 227.7202) the Government's right to use, reproduce or disclose the Software and any accompanying documentation acquired under this Agreement is subject to the restrictions of this Agreement.
10.2 Civilian Agency End Users: If the Software is acquired by or on behalf of civilian agencies of the United States Government, then, pursuant to FAR Section 12.212 and its successors (48 C.F.R. 12.212), the Government's right to use, reproduce or disclose the Software acquired under this Agreement is subject to the restrictions of this Agreement.
11. LEGAL COMPLIANCE.
You may not download or otherwise export or re-export the Software or any underlying information or technology except in full compliance with all United States and other applicable laws and regulations. In particular, but without limitation, none of the Software or underlying information or technology may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Iran, Iraq, Libya, North Korea, Syria, or Sudan, or (ii) to anyone on the US Treasury Department's list of Specially Designated Nationals or the US Commerce Department's Table of Deny Orders. By licensing the Software, you are agreeing to the foregoing and you are representing and warranting that you are not located in, under control of, or a national or resident of any such country or on any such list.
12. NON-ASSIGNMENT/BINDING AGREEMENT.
Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by you, in whole or in part, whether voluntary or by operation of law without the prior written consent of AdventNet. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.
13.1 If any term, condition, or provision in this Agreement is found to be invalid, unlawful or unenforceable to any extent, the remaining terms, conditions and provisions will continue to be valid and enforceable to the fullest extent permitted by law.
13.2 This Agreement (including any addenda hereto signed by both parties) represents the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter.
13.3 This Agreement may not be amended, except in writing, signed by both parties. [No terms, provisions or conditions of any purchase order, acknowledgment or other business form that you may use in connection with the acquisition or licensing of the Software will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of AdventNet to object to such terms, provisions or conditions.
13.4 This License shall be governed by and construed in accordance with the laws of the State of California as applied to agreements made, entered into and performed entirely in California, by California residents. You agree that any dispute regarding this License will be heard in the state or federal courts having jurisdiction in San Francisco County, California, and you agree that you shall be subject to the personal jurisdiction of such courts.
13.5 Use of AdventNet, Inc. software constitutes an acceptance of the terms of this agreement. If you do not agree to be bound by these provisions, you are required to destroy all copies of AdventNet software from your equipment immediately.
The following terms shall have the following meanings:
"Application" means any use of any of the published Application Programming Interfaces (APIs) documented or referenced in the Documentation, whether such use is from a 3rd-party browser (including but not limited to Netscape Navigator or Microsoft Internet Explorer), or from another software program designed or modified to use APIs provided with the Software.
"Development Use" means use of the Software by a Development Use Customer to design, develop and/or test new Applications.
"Documentation" means the technical publications prepared and delivered to you by AdventNet or provided to you on the AdventNet web site relating to use of the Software, such as reference, user, installation, systems administrator and technical guides.
"Production Use" means using the Software in an Application for internal business purposes only. Production Use does not include the right to reproduce the Software for sublicensing, resale, or distribution to any party other than a User, including without limitation, distributing the Software as part of a VAR, OEM, distributor or reseller arrangement.
"Server" means a single computer processor capable of executing the Software.
"Site" means the specific, physical location of a Server, as set forth on your download form.
"Software" means those items of software, in object code format only, proprietary to AdventNet and/or its suppliers, that you have ordered from AdventNet pursuant to your download form and under the terms of this Agreement.
"Updates" mean a Minor Release identified by the change in the digit to the right of the first and subsequent decimal places reading from left to right in an AdventNet product release number. For instance, in AdventNet Product Release X.a and X.b.c - a, b, and c are Updates or Minor Releases.
"Upgrades" mean a Major Release identified by the change in the digit to the left of the first decimal place reading from left to right in an AdventNet product release number. For instance, in AdventNet Product Release X.a and Y.a - X and Y are Upgrades or Major Releases.