Quest Software, Inc.
Software License Agreement
PLEASE READ THIS SOFTWARE LICENSE AGREEMENT CAREFULLY. BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE YOU INDICATE ACCEPTANCE OF AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE. THIS AGREEMENT DOES NOT SUPERCEDE ANY OTHER WRITTEN AGREEMENT BETWEEN YOU AND QUEST SOFTWARE.
This agreement (the "Agreement") is made between Quest Software, Inc., ("Quest") and you, the customer ("Licensee"). The terms and conditions of this Agreement are intended by the parties as a final expression of their agreement with respect to the subject matter hereof and may not be contradicted by evidence of any prior or contemporaneous agreement unless such agreement is signed by both parties. In the absence of such an agreement, this Agreement shall constitute the complete and exclusive statement of the terms and conditions. This Agreement may not be modified except by a writing executed by both parties hereto.
1. Software. For the purpose of this Agreement, the licensed Big Brother computer software program(s) downloaded and/or installed and the supporting documentation for such will be referred to as the "Software."
2. License Grant. Subject to the terms and conditions of this Agreement, the Software is licensed, not sold to Licensee by Quest. This license does not entitle Licensee to receive from Quest hard-copy documentation, upgrades, technical support, or telephone assistance. The "License" granted hereunder is perpetual, non-exclusive, and non-sublicensable, and is further described as follows:
(a). Non-Commercial Use. For a thirty (30) day evaluation period, Licensee may use the Software for its own internal evaluation purposes at no charge. Upon expiration of the evaluation period, Licensee shall be entitled to continue use of the Software for non commercial purposes only. Quest may terminate this agreement 30 days after publishing a notice of termination online at http://bb4.com/.
(b). Commercial Use. Upon expiration of the evaluation period, and only upon Licensee's purchase of a commercial license or licenses may Licensee use the Software for Commercial Purposes. "Commercial Purposes" include any activity engaged in for the purpose of directly generating revenue or in support of an activity which generates revenue. A license to use the Software for Commercial Purposes allows Licensee to:
Use the number of copies of the Software licensed. "Use" shall mean Licensee may install, use, access, run, or otherwise interact with the Software in accordance with the applicable documentation and the license grant specified by Quest.
Make one copy (in machine-readable form only) of each copy of the Software licensed hereunder. Such copy may be used solely for archival purposes and must contain an unmodified reproduction of all copyright and other proprietary notices that are on the original copy.
3. Restrictions. Quest reserves any rights not expressly granted to Licensee and retains title and full ownership rights in the licensed Software, all copies thereof, and all documentation related thereto under the copyright laws of the United States or any other jurisdiction or under any federal, state, or foreign laws. The Licensee agrees to take all steps which are reasonably necessary to protect the Licensor's ownership rights to the licensed Software in the conduct of the Licensee's licensed activity with the licensed Software, and will not take any action to jeopardize, limit or interfere in any manner with such rights. Licensee shall not modify or create any derivative works of the licensed Software or documentation, including translation or localization; redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer rights to the licensed Software. Licensee shall not remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the licensed Software.
4. Export Law Assurances. Licensee shall not export or re-export, or allow the export or re-export of the Software or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
5. Limitation of Remedies and Damages. IN NO EVENT WILL QUEST, ITS SUBSIDIARIES OR ANY OF THE LICENSORS, DIRECTORS, OFFICERS, EMPLOYEES OR AFFILIATES OF ANY OF THE FOREGOING BE LIABLE TO LICENSEE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE), WHETHER FORESEEABLE OR UNFORESEEABLE, OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES, REGARDLESS OF THE BASIS OF THE CLAIM AND EVEN IF QUEST OR A QUEST REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. QUEST'S CUMULATIVE LIABILITY FOR DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE AMOUNT OF MONEY PAID TO QUEST FOR THE SOFTWARE THAT CAUSED THE DAMAGES. NO ACTION MAY BE BROUGHT AGAINST QUEST LATER THAN ONE YEAR FROM THE TERMINATION OF THIS AGREEMENT.
6. Nondisclosure. "Confidential Information" shall be defined to include any proprietary tools, proprietary knowledge or proprietary methodologies disclosed by Quest to Licensee under or relating to the software licensed under this Agreement. Licensee shall observe complete confidentiality with respect to the Confidential Information, and shall use its best efforts and take all reasonable steps to protect the Confidential Information from any use, reproduction, publication, disclosure, or distribution except as specifically authorized by this Agreement. Licensee shall promptly notify Quest of any known unauthorized use or disclosure of the Confidential Information and will cooperate with Quest in any litigation brought by Quest against third parties to protect its proprietary rights.
7. Assignment. Licensee may not assign or transfer its rights and obligations under this Agreement without prior written approval by Quest and any purported assignment or transfer without Quest's consent shall be null and void.
8. Injunctive Relief. Licensee hereby expressly agrees that Quest, in addition to any other rights or remedies which Quest may possess, shall be entitled to injunctive and other equitable relief without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
9. Software Supplied to the Government. The Software is a "commercial item," "commercial computer software" and/or "commercial computer software documentation." Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Software by the U.S. government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted herein.
10. Survival. Sections 3, 4, 5, 6, 8, 10, 11, 12 and 13 shall survive termination of this Agreement for any reason whatsoever.
11. "AS-IS" Warranty. Quest warrants that it or its licensors retain(s) all intellectual property rights in the Software and any accompanying written materials provided by Quest, including but not limited to copyright, and that it has the legal right to grant Licensee the License granted under this Agreement. LICENSEE AND QUEST AGREE THAT THE SOFTWARE IS PROVIDED "AS IS" AND UNSUPPORTED, AND THAT QUEST MAKES NO WARRANTY AS TO THE SOFTWARE, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
12. Term and Termination. This Agreement is effective for the term of the license grant unless sooner terminated, (i) under Section 2(a) herein; (ii) through mutual agreement by the parties; or (iii) by Licensee's material breach of the Agreement; provided, however, Licensee shall have ten (10) days from written notice to cure any such breach if curable. Upon any termination Licensee must immediately destroy the Software and all accompanying written materials and all copies thereof (including copies stored in computer memory) and shall so certify to Quest in writing.
13. General. This Agreement will be construed under the laws of the State of California, except for that body of law dealing with conflicts of law and the U.N. Convention of Contracts for the Sale of International Goods, which shall not apply. In the event there is a dispute concerning the subject matter of this Agreement, the proper venue shall be the County of Orange, State of California, United States of America. Each party hereby waives opposition to jurisdiction in such court. Service of process can be done in accordance with the governing law of the Agreement. Performance of any obligation required by a party hereunder may be waived only by a written waiver signed by the other party, which waiver shall be effective only with respect to the specific obligation described therein. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, that provision will be enforced to the maximum extent permissible, and the remaining provisions of this Agreement will remain in full force and effect.
Questions? Comments ?
Contact:
Quest Software, Inc.
E-mail: info@bb4.com
Tel: +1 (514) 996-INET
Fax: +1 (514) 996-0326
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