KEMP Technologies SOFTWARE LICENSE AGREEMENT
1. READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE INSTALLING THIS SOFTWARE ON YOUR PERSONAL COMPUTER. THIS SOFTWARE LICENSE AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU (EITHER ON BEHALF OF YOURSELF AS AN INDIVIDUAL OR ON BEHALF OF AN ENTITY AS ITS AUTHORIZED REPRESENTATIVE) ON THE ONE HAND, AND KEMP Technologies, INC. AND ITS SUBSIDIARIES AND AFFILIATES (COLLECTIVELY REFERRED TO AS 'KEMP') ON THE OTHER HAND, FOR THE SOFTWARE PRODUCT ENTITLED 'LoadMaster,' WHICH INCLUDES COMPUTER SOFTWARE AND ANY ASSOCIATED MEDIA, PRINTED MATERIALS, AND/OR 'ONLINE' OR ELECTRONIC DOCUMENTATION (TOGETHER CALLED THE 'SOFTWARE'). PLEASE READ THIS AGREEMENT CAREFULLY AND PRINT OUT A COPY FOR YOUR RECORDS. THIS AGREEMENT SUPERSEDES PREVIOUS VERSIONS.
BY INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS SOFTWARE LICENSE AGREEMENT AND AGREE TO BE BOUND BY ITS TERMS. THE SOFTWARE IS LICENSED, NOT SOLD, TO YOU FOR USE ONLY UNDER THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS SOFTWARE LICENSE AGREEMENT, DO NOT INSTALL OR USE THE SOFTWARE AND DELETE ALL COPIES IN YOUR POSSESSION.
2. KEMP grants you a 30-day,non-exclusive, non-transferable license to use one copy of the Software in the country in which you acquired the Software for your own personal or commercial use, but retains all property rights in the Software and all copies thereof. All other rights are expressly reserved by KEMP. You may: (i) use the Software on any supported computer configuration, provided the Software is used on only one (1) such computer; and (ii) permanently transfer the Software and its documentation to another user provided you retain no copies and the recipient agrees to the terms of this Agreement. You may not transfer, distribute, rent, sub-license, or lease the Software or documentation, except as provided herein; or alter, modify, or adapt the Product or documentation, or any portions thereof.
3. You acknowledge that the Software in source code form remains a confidential trade secret of KEMP. You agree not to modify or attempt to reverse engineer, decompile, or disassemble the Software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
4. OWNERSHIP: All right, title and interest and intellectual property rights in and to the Software (including but not limited to any titles, computer code, concepts, screen images, text and 'applets,' incorporated into the Software), the accompanying printed materials, and any copies of the Software, are owned by KEMP or its licensors. This Agreement grants you no rights to use such content other than as part of the Software.
5. This Agreement is effective upon your installation of the Software and shall continue until revoked by KEMP or until you breach any term hereof; upon termination you agree to destroy and/or delete all copies of the Software in your possession.
6. LICENSE RESTRICTIONS: You acknowledge that the foregoing license extends only to your use of the features and functionality of the Software as described in the documentation accompanying the version of the Software downloaded by you (the "Documentation"), and you agree not to reconfigure or modify the Software in order to enable features or functionality different than those described in such Documentation or available in other KEMP products without notifying KEMP and paying the applicable Software upgrade fee. You may not: (i) reverse engineer, decompile, or disassemble the Software; (ii) modify, or create derivative
works based upon, the Software in whole or in part; (iii) distribute copies of the Software; (iv) remove any proprietary notices or labels on the Software; or (v) resell, lease, rent, transfer, sublicense, or otherwise transfer rights to the Software. Any use in violation of this Section shall immediately terminate your license to the Software.
7. TITLE: You agree that no title to the intellectual property in the Software, Subscription Services (as defined), or license keys is transferred to you. Title, ownership, rights, and intellectual property rights in and to the Software, Subscription Services, and license keys shall remain in KEMP and/or KEMP's licensors. The Software, Subscription Services and license keys are protected by intellectual property laws of the United States and other countries and by international treaties.
8. GENERAL: The Software is provided to you at minimal charge. KEMP does not guarantee that use of the Software will be uninterrupted or error-free. You acknowledge that performance of the Software may be affected by any number of factors, including without limitation, technical failure of the Software, the acts or omissions of third parties and other causes reasonably beyond the control of KEMP. Certain features of the Software may not be forward-compatible with future versions of the Software and use of such features with future versions of the Software may require purchase of the applicable future version of the Software.
9. AS IS SALE: YOU AGREE THAT KEMP AND ITS LICENSORS HAVE MADE NO EXPRESS WARRANTIES, ORAL OR WRITTEN, TO YOU REGARDING THE SOFTWARE AND THAT THE SOFTWARE IS BEING PROVIDED TO YOU "AS IS" WITHOUT WARRANTY OF ANY KIND. YOU ACKNOWLEDGE THAT THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE IS WITH YOU. SHOULD THE SOFTWARE PROVE DEFECTIVE, YOU (AND NOT KEMP, THE RETAILER, OR ANY DISTRIBUTOR) ASSUME THE ENTIRE COST OF ALL NECESSARY REPAIRS.
10. DISCLAIMER: KEMP DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NONINFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THIS WARRANTY DISCLAIMER AFFECTS YOUR LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION. SOME JURISDICTIONS DO NOT ALLOW EXCLUSIONS OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
11. Limitation on Liability. EXCEPT FOR BODILY INJURY OF A PERSON, IN NO EVENT WILL KEMP BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES ARISING OUT OF THE SUBJECT MATTER OF THIS AGREEMENT, THE PRODUCT OR ANY SERVICES UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS), OR FOR LOSS OF OR CORRUPTION OF DATA, OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR TECHNOLOGY, IRRESPECTIVE OF WHETHER KEMP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. KEMP'S MAXIMUM LIABILITY FOR DAMAGES SHALL BE LIMITED TO THE LICENSE FEES RECEIVED BY KEMP UNDER THIS LICENSE FOR THE PARTICULAR PRODUCT(S) WHICH CAUSED THE DAMAGES. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to You.
12. TERMINATION: This Agreement shall terminate automatically if you fail to comply with the terms of this Agreement. No notice shall be required from KEMP to effect such termination. You may also terminate this Agreement at any time by notifying KEMP in writing of termination. Upon any termination of this Agreement, you must uninstall and destroy all copies of the Software.
13.1 COMPLIANCE WITH EXPORT CONTROL LAWS: End User agrees to comply fully with all relevant export laws and regulations, including but not limited to the U.S. Export Administration Regulations and regulations promulgated by the U.S. Department of the Treasury’s Office of Foreign Assets Control ("OFAC"), as amended from time to time (collectively, the "Export Control Laws"). End User agrees not to export or reexport the Software to any parties located in Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria or any other countries prohibited under U.S. embargoes or sanctions programs maintained by the OFAC or otherwise prohibited under the Export Control Laws.
13.2 U.S. GOVERNMENT RIGHTS: The Software under this Agreement is commercial computer software as that term is described in 48 C.F.R. 252.227-7014(a)(1). If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data) of the Federal Acquisition Regulations ("FAR") and its successors. If acquired by or on behalf of any agency within the Department of Defense ("DOD"), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 227.7202-3 of the DOD FAR Supplement ("DFAR") and its successors.
13.3 GOVERNING LAW: This Agreement will be governed by the laws of the State of New York as they are applied to agreements between New York residents entered into and to be performed entirely within New York. The United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed.
13.4 ENTIRE AGREEMENT: You agree that this is the entire agreement between you and KEMP, and that it supersedes any prior agreement, whether written or oral, and all other communications between KEMP and you relating to the subject matter of this Agreement. This Agreement may be amended, modified or supplemented only by a writing that is signed by the authorized representatives of both parties.
13.5 RESERVATION OF RIGHTS: All rights not expressly granted in this Agreement are reserved by KEMP.
14. INJUNCTION. Because KEMP would be irreparably damaged if the terms of this License Agreement were not specifically enforced, you agree that KEMP shall be entitled, without bond, other security or proof of damages, to appropriate equitable remedies with respect to breaches of this Agreement, in addition to such other remedies as KEMP may otherwise have under applicable laws.
15. INDEMNITY. At KEMP's request, you agree to defend, indemnify and hold harmless KEMP, its subsidiaries, affiliates, contractors, officers, directors, employees, agents, licensors, licensees, distributors, developers, content providers, and other users of the Software, from all damages, losses, liabilities, claims and expenses, including attorneys' fees, arising directly or indirectly from your acts and omissions to act in using the Software pursuant to the terms of this License Agreement or any breach of this License Agreement by you. KEMP reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you hereunder, and in such event, you shall have no further obligation to provide indemnification for such matter.
16. TERMINATION. Without prejudice to any other rights of KEMP, this License Agreement and your right to use the Software may automatically terminate without notice from KEMP if you fail to comply with any provision of this Agreement or any terms and conditions associated with the Software. In such event, you must destroy all copies of this Software and all of its component parts.
17. GENERAL PROVISIONS. You may not use, copy, modify, sublicense, rent, sell, assign or transfer the rights or obligations granted to you in this Agreement, except as expressly provided in this Agreement. Any assignment in violation of this Agreement is void, except that you may transfer your Software to another person provided that person accepts the terms of this License Agreement. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable, and such decision shall not affect the enforceability of: (i) such provision under other circumstances, or (ii) the remaining provisions hereof under all circumstances. KEMP's failure to enforce at any time any of the provisions of this Agreement shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the right of any party to enforce each and every such provision thereafter. The express waiver by KEMP of any provision, condition or requirement of this Agreement shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement. Notwithstanding anything else in this Agreement, no default, delay or failure to perform on the part of KEMP shall be considered a breach of this Agreement if such default, delay or failure to perform is shown to be due to causes beyond the reasonable control of KEMP. This Agreement represents the complete agreement concerning this License Agreement between you and KEMP.