End user agreement for Capsa Network Analyzer Free Edition
Copyright (c) 2001 - 2010 Colasoft Co., Ltd. All rights reserved.
IMPROTANT: THIS LICENSE AGREEMENT SHALL ONLY APPLY TO COUNTRIES AND REGIONS OTHER THAN THE CHINA MAINLAND.
This License Agreement is a legal contract between you (either as an individual or as an entity) and Colasoft Co., Ltd. ("COLASOFT") for the Colasoft Capsa and related add-ons ("SOFTWARE PRODUCT").
You should carefully read the following terms and conditions before using the Software Product. Installation or use of the SOFTWARE PRODUCT indicates your acceptance of this License Agreement.
NOTICE: THE SOFTWARE MAY CONTAIN A “TIME OUT” FEATURE THAT WILL RENDER THE SOFTWARE INOPERATIVE AT THE END OF THE TERM (AS DEFINED BELOW).
END USER SOFTWARE LICENSE AGREEMENT
a. Free Edition
If the SOFTWARE PRODUCT is marked as a free version for the final user (FREE), it provided you without charge, including without limitation Software (i) known as Colasoft Capsa Free, Colasoft Ping Tool, Colasoft Packet Builder, Colasoft Packet Player, Colasoft MAC Scanner Free, (ii) provided for evaluation or non-profit purposes, or (iii) marked or otherwise designated as a “beta” version of a software product.
b. Not-For-Resale Copies
If the SOFTWARE PRODUCT is marked as a Not-For-Resale (NFR) copy, you may not sell or transfer the usage license of the SOFTWARE PRODUCT for any kind of payment. An NFR copy of the SOFTWARE PRODUCT may only be used for purposes of demonstration the SOFTWARE PRODUCT's resources. With an NFR version of the SOFTWARE PRODUCT you may not make or distribute additional copies.
c. Beta Edition
If the SOFTWARE PRODUCT is marked as a beta version for the final user (BETA), the component of the SOFTWARE constitutes pre-release code and may be changed substantially before commercial release. You may not use such component in a live operating environment where it may be relied upon to perform in the same manner as a commercially released product or with data that has not been sufficiently backed up. You must delete all copies of the beta version after expiring the time limit.
d. Initial Term means the period beginning on the date you downloaded or otherwise acquired the Software and continuing for the term specified by the Applicable Conditions.
e. Renewal Term has the meaning ascribed to it by Section 4.a of this Agreement.
f. Term means the Initial Term together with all Renewal Terms.
2. License Types
a. Single Seat License.
A Single Seat License grants you the right to install and use the SOFTWARE PRODUCT on one single computer and provide access for an unlimited number of individuals. You may NOT install and use the SOFTWARE PRODUCT on a computer other than the first computer you installed the SOFTWARE PRODUCT on. For running this SOFTWARE PRODUCT on additional computers requires additional licenses.
b. 5 Seat License.
A 5 Seat License grants you the right to install and use the SOFTWARE PRODUCT on five computers and provide access for an unlimited number of individuals with one single license key. You may NOT install and use the SOFTWARE PRODUCT on a computer other than the first five computers you installed the SOFTWARE PRODUCT on. For running this SOFTWARE PRODUCT on additional computers requires additional licenses.
c. Site License.
A Site License grants you the right to install and use the SOFTWARE PRODUCT on an unlimited number of computers and provide access for unlimited individuals with one single license key at a single organization location. To use the SOFTWARE PRODUCT in remote locations, such as branch offices, requires separate licenses.
d. Global License.
A Global License grants you the right to install and use the SOFTWARE PRODUCT on an unlimited number of computers and provide access for unlimited individuals with one single license key at any organization location worldwide.
3. License Grant; Related Provisions.
a. Grant of License
Colasoft subject to the terms and conditions of this Agreement, hereby grants to you a non-exclusive and non-transferable license during the applicable Term to use the Software only in executable or object code form, and solely for Authorized Purposes in accordance with the Applicable Conditions. Without limiting the foregoing, if you received the Software in combination with a personal computer, network appliance or other hardware product, your license authorizes you to use the Software solely in conjunction with the applicable unit of hardware.
ANY USE OF THE SOFTWARE OTHER THAN AS EXPRESSLY AUTHORIZED BY THIS SECTION 3, OR ANY RESALE OR FURTHER DISTRIBUTION OF THE SOFTWARE, CONSTITUTES A MATERIAL BREACH OF THIS AGREEMENT AND MAY VIOLATE APPLICABLE COPYRIGHT LAWS.
b. Limitations on use.
You may not, and shall not permit any third party to, (i) duplicate the Software for any purpose other than as reasonably necessary to use the same as contemplated by this Agreement and for off-line archival and disaster recovery purposes, (ii) install the Software on more computers than authorized by the Applicable Conditions, (iii) except as expressly authorized by Colasoft, use any serial number supplied by Colasoft (each, a “Serial Number”) in connection with Software on more than one (1) computer at any time, (iv) disclose any Serial Number to any party other than Colasoft or, as required to obtain support services in respect of the Software, Colasofts' designated representatives, (v) publish the Software or any Serial Number or use the same other than for Authorized Purposes, (vi) except as expressly authorized by law, reverse engineer, disassemble, decompile, translate, reconstruct, transform or extract the Software or any portion of the Software (including without limitation any related malware signatures and malware detection routines), (vii) except as expressly authorized by law, change, modify or otherwise alter the Software (including without limitation any related malware signatures and malware detection routines), (viii) transfer, pledge, rent, share or sublicense the Software other than in connection with the sale, lease, rental or other transfer of the computer on which it is installed in compliance with the Applicable Conditions, (ix) grant any third party access to or use of the Software on a service bureau, timesharing, maintenance service or application service provider or other similar basis, or (x) defeat or circumvent, attempt to defeat or circumvent, or authorize or assist any third party in defeating or circumventing controls on the installation or use of copies of the Software.
Colasoft, from time to time during the Term, may provide updates to the Software and/or the malware signatures included therein (each, an “Update”). Updates will be deemed Software for all purposes under this Agreement. You acknowledge that you must routinely download and permit installation of Updates in order to obtain maximum benefit from the Software.
In no event shall Colasoft be obligated to provide you with Updates following the expiration or termination of the Term, and Colasoft in its sole discretion may terminate Updates for any version of the Software other than the most current version, or Updates supporting use of Software in connection with versions of any third party operating systems, email programs, protocols and other software other than the most current version.
Colasoft welcomes your feedbacks concerning the Software, including notice that you have experienced a Software error, crash or other malfunction and suggestions for additional or different features and functions. Please send us your comments and suggestions using the web form located at www.colasoft.com/feedback/.
Colasoft shall have no obligation to respond or act on to any such comments or suggestions, but you grant Colasoft a perpetual, irrevocable, fully paid-up, royalty-free, worldwide right and license under your intellectual property rights (if any) to implement your comments and suggestions in the Software and other products and services offered by Colasoft, its Partners, and their respective licensors, licensees, successors and assigns.
e. Testing, Benchmarking.
You shall not, and shall not permit any third party to test or benchmark nor externally disclose or publish testing or benchmark results for any Colasoft Software without Colasofts' prior written approvement. Requests for authorization for testing or benchmarking can be directed through contact at firstname.lastname@example.org.
4. Renewals, Termination.
Colasoft, prior to the conclusion of the Initial Term or the then-current Renewal Term, may offer you the opportunity to extend the licenses granted by this Agreement at Colasofts' then-current renewal price. You may accept any such offer by following the directions and paying the renewal price set forth in the offer, at which time the term of the Agreement will be extended for the applicable period (each, a “Renewal Term”).
Colasoft, in addition to such other rights may be available at law or equity, shall be entitled to terminate the license granted by this Agreement without liability (i) for convenience on five (5) days' prior notice, provided that Colasoft, in its sole discretion, shall either refund to you the license fees you paid in respect of the then-current initial term or renewal term, prorated over the applicable term, or grant license for substantially similar product for the remainder of the Term, or (ii) for cause at any time without notice if you commit a material breach of this Agreement.
The SOFTWARE PRODUCT and Documentation are copyrighted by COLASOFT and are protected by international copyright laws. You agree not to remove any trademarks or copyright notices from the SOFTWARE PRODUCT and Documentation.
Colasoft reserves all rights in the Software not expressly granted by this Agreement. All copyrights, trademarks and other conceivable intellectual property rights in and to the Software (including, but not limited to, malware signatures and other data files, images appearing in the Software and screen displays as well as any and all documentation relating to the Software) are owned by Colasoft or its licensors, and are protected by United States and foreign copyright laws, international treaties and other applicable laws. Any copy of the Software you are allowed to make pursuant to this Agreement must contain the entire copyright and other notices included with the original copy of the Software.
a. General. Colasoft warrants that, on delivery of the Software and for a period of thirty (30) days thereafter, that the medium (if any) on which the Software is delivered will be free of material defects, and that the Software will perform substantially in accordance with the applicable specifications. The foregoing warranty applies only to the Software as originally delivered, and does not apply to Updates. Your sole and exclusive remedy for breach of this Warranty is replacement of the defective media or Software or, at Colasofts' option, return of the Software for a full refund. In order to exercise your rights under this Section 6, you must uninstall and destroy all copies of the Software you may have made (including all archival copies), and contact at email@example.com with your refund request.
b. Free Software. THE PROVISIONS OF THIS SECTION 6.b APPLY IN PLACE OF SECTION 6.a WITH RESPECT TO FREE SOFTWARE. ALL FREE SOFTWARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS, WITHOUT WARRANTY AND WITHOUT SUPPORT OR OTHER SERVICES BY COLASOFT.
c. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED BY SECTION 6.a OF THIS AGREEMENT, COLASOFT DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE SOFTWARE, MEDIA AND ANY OTHER SUBJECT MATTER OF THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY, THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTY OF NONINFRINGEMENT. COLASOFT DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT THE SOFTWARE WILL PROVIDE 100% PROTECTION. Some jurisdictions do not allow limitations on certain implied warranties, so the above limitations may not apply to you. You may have other rights that vary from jurisdiction to jurisdiction.
d. Hazardous Environments. You acknowledge that the Software is not designed or licensed for use in hazardous environments, including without limitation operation of nuclear facilities, aircraft navigation systems, aircraft communication systems, air traffic control, life support or weapons systems and any other environment in which bodily injury or death could result from failure of or inability to use the Software. Without limiting the provisions of Sections 6.b and 6.c of this Agreement, Colasoft and its licensors hereby disclaim any express or implied warranties of fitness for such uses.
7. Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL COLASOFT OR ITS SUPPLIERS OR RESELLERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES WHATSOEVER, WITHOUT REGARD TO CAUSE OR THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, DAMAGES INCURRED FOR LOSS OF BUSINESS PROFITS OR REVENUE, LOSS OF PRIVACY, LOSS OF USE OF ANY COMPUTER OR SOFTWARE INCLUDING THE SOFTWARE, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT OR THE SOFTWARE PROVIDED HEREUNDER, EVEN IF COLASOFT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL COLASOFTS' LIABILITY RELATED THE SOFTWARE EXCEED THE LESSER OF THE FEES YOU ACTUALLY PAID FOR THE SOFTWARE AND COLASOFTS' SUGGESTED RETAIL PRICE FOR THE SOFTWARE AS OF THE DATE YOU RECEIVED IT (OR, WITH RESPECT TO FREE SOFTWARE). THE FOREGOING LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
8. Privacy and Security.
a. Notice. Colasoft may deliver any notice to you via pop-up window, dialog box or other means, even though you may not receive the notice unless and until you launch the Software. Any such notice will be deemed delivered on the date Colasoft first makes it available through the Software, irrespective of when you actually receive it.
b. Complete Agreement. This Agreement constitutes the complete Agreement between the parties and supersedes all previous communications and representations or agreements, either oral or written, with respect to the subject matter hereof.
c. Amendments, Waiver. This Agreement may be modified or changed in whole or in part in any manner other than by an Agreement in writing duly signed by both parties hereto or by a further electronic agreement presented by Colasoft and accepted by you. Colasofts' failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right.
d. Distribution. The FREE/BETA version of the SOFTWARE may be distributed freely in its original unmodified and unregistered form. The distribution must include all files of its original distribution. Distributors may not charge any money for distributing this version. Anyone distributing the SOFTWARE for any kind of remuneration must first contact Colasoft for authorization. Colasoft does not grant you the right to give away, sell, license or otherwise distribute the full version or Not-For-Resale copies of the SOFTWARE.
e. Severability. The parties desire and intend that all of the provisions of this Agreement be enforceable to the fullest extent permitted by law. If any provision of this Agreement or the application thereof to any person or circumstances is, to any extent, construed to be illegal, invalid or unenforceable, in whole or in part, then such provision will be construed in a manner to permit its enforceability under applicable law to the fullest extent permitted by law. In any case, the remaining terms of this Agreement or the application thereof to any person or circumstance, other than those that have been held illegal, invalid or unenforceable, will remain in full force and effect.
f. Governing Law. This Agreement will be governed by the laws of the People's Republic of China.
g. Export Controls. You acknowledge that portions of the Software may be of China Mainland. You agree to comply with all applicable China and international laws governing export and reexport of the Software, including the China Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by China and other governments.
h. No Third Party Beneficiaries. This Agreement is intended solely for the benefit of you and Colasoft. No person not a party to this Agreement may bring a cause of action pursuant to this as a third party beneficiary hereof.
i. Language. This Agreement was originally prepared in the English language. Although Colasoft may provide one or more translations for your convenience, the English version will control in the case of any conflict or discrepancy.