Endace Software End User Licence Agreement

IMPORTANT - READ CAREFULLY
This document is a legal agreement (“Licence”) between you (either an individual or an entity) and Endace Measurement Systems Limited, a New Zealand company ("Endace") for the Software (as defined below).

WARNING!  DO NOT INSTALL, COPY, READ, STUDY, OR OTHERWISE MAKE USE OF THE SOFTWARE OR THE PRODUCT (AS DEFINED BELOW) UNTIL YOU HAVE READ AND ACCEPTED ALL THE TERMS OF THIS LICENCE.    BY INSTALLING, COPYING, READING, STUDYING OR OTHERWISE MAKING USE OF THE SOFTWARE OR THE PRODUCT, YOU AGREE TO BE BOUND BY THE TERMS OF THIS LICENSE.  IF YOU DO NOT ACCEPT ALL THE TERMS OF THIS LICENCE DO NOT INSTALL, COPY, READ, STUDY OR OTHERWISE MAKE USE OF THE SOFTWARE.  

If the Software has been obtained for use by a company, you must not install, copy, read, study or otherwise make use of the Software unless you are authorised to bind the company to the terms of this Licence.  Where a company is to be bound by this Licence, references to “you” and “your” in this Licence are references to the company.

Included with the Software may be software that is not licensed by Endace, but is “open source” or “free”, (including but not limited to software licensed under the BSD or GNU General Public License).  “Open source” or “free” software included with the Software is not subject to this Licence – please refer to the documentation accompanying or included with that software.

1. Definitions:
(a) “Appliance” means the Endace-manufactured network appliances (including but not limited to the NinjaProbe range);
(b) “Applied Watch Software” means the Applied Watch Command Centre or sub-component thereof;  
(c) “DAG Cards” means the Endace-manufactured network cards;
(d) “Intellectual Property” means copyright, patents, designs, trade marks, trade names, goodwill rights, trade secrets, confidential information, know-how and any other intellectual proprietary right or form of intellectual property;
(e) “Platform” means the Endace-manufactured network platforms (including but not limited to the NinjaBox range);  
(f) “Products” means either an Appliance, Platform, DAG Card or combination thereof; and
(g) “Software” means the Endace owned software (including the Applied Watch Software) and firmware contained within a Product, or within an electronic install package supplied in connection with a Product or supplied on its own (as applicable), including without limitation all associated media, printed materials and online or electronic documentation.   

2. Licence:
Endace and/or its suppliers (“Owners”) are the owners of the copyright and other intellectual property rights in the Software.  On your acceptance of this Licence and payment of the applicable licence fees (if any), Endace grants you a non-exclusive, non-transferable licence to use the Software upon the terms and conditions contained in this Licence and in accordance with its documentation.

You do not receive title to the Software or any intellectual property or proprietary rights whatsoever. 

Access to the Software may be controlled by a licence key which shall enable Endace to activate or disable the Software in accordance with the terms contained herein. 

3. Permitted Uses (Appliances):
In relation to the Software contained within an Appliance:
(a) The Software is licensed with the Appliance as a single integrated product and may only be used with the Appliance.  If the Software is not accompanied by the Appliance, you may not use the Software;   
(b) Unless otherwise expressly provided, you may use the Software solely as embedded in and for execution on the Appliance for internal business purposes;
(c) This license may not be shared, transferred to or used concurrently on different computers or appliances; and  

4. Permitted Uses (DAG Cards and Platforms)
In relation to the Software contained within a DAG Card or Platform:
(a) You may load, install and use the Software for your internal business purposes; 
(b) You may make one copy of the Software for archive or back-up purposes only;  
(c) Where you have been supplied with the source code for the Software or any part of the Software, you may translate, adapt, vary, modify, or make derivative works from that source code for your own internal use;  and
(d) Where you develop software utilising a documented Endace Application Programming Interface (Endace API) included with the Software, you may publish or otherwise distribute , in conjunction with your software, access methods to that Endace API, but only to the extent necessary for your software to operate in conjunction with the Software (or with other Products or Software), and only if you ensure that each person who receives a copy of the software utilizing access methods to the Endace API (or any part thereof) is made aware that (i) the Owners are the owners of all copyright and other intellectual property rights in the Endace API; (ii) the recipient may only install, copy, use, modify, distribute or otherwise deal with the Endace API (or any part thereof) on the terms set out in this Licence; and (iii) Endace and the Owners provide no warranties and accept no liability in respect of the Endace API.

5. Permitted Uses (Applied Watch Software)
In relation to Applied Watch Software supplied on its own:
(a) You may load, install and use the Software for your internal business purposes;  
(b) Applied Watch Software is licensed on a per-user basis.  You may install the number of licences, as specified on your order; and   
(c) In addition, if the Applied Watch Software is provided embedded on either (i) an Appliance, your use of the Software is limited as specified in clause 3 or (ii) a Platform, your use of the Software is limited as specified in clause 4.    

6. Restrictions:
(a) You must not use the Software or make copies of it except as permitted in this Licence.
(b) Except as expressly set out in clauses 3-5 (as applicable), you must not translate, adapt, vary, modify, or make derivative works from, the Software or any part of it.
(c) Other than as permitted under law, you may not disassemble, decompile or reverse engineer any part of the Software supplied to you as compiled code, except that it is permissible to incidentally decompile the Software if it is essential to do so to achieve interoperability of the Software with another computer program (“the Purpose”) provided that you keep any information obtain during decompilation confidential and do not use that information in any way except for the Purpose.
(d) You must not remove or obliterate from the Software Endace’s copyright notice.
(e) Except as expressly set out in clause 3-5 (as applicable), you must not sell, assign, lease, rent, loan or sub-licence your rights under this Licence, or provide the Software or otherwise make it available in whole or in part in any form to any person, without prior written consent from Endace.
(f) You must not use the Software for immoral, illegal or for any other purpose which may be determined threatening, abusive or harmful including but not limited to the creation or transmission of any virus, worms, trojan horse or any other destructive or contaminating program or the illegal interception of communications.
(g) You must not disclose to any person any information which would enable that person to do any of the prohibited acts above.

7. You Must Also:
(a) ensure that every person who will use the Software is notified of this Licence and its terms prior to such use;
(b) supervise and control use of the Software in accordance with the terms of this Licence; and
(c) take reasonable measures to ensure the security of the Software.

8. Duration:
This Licence is for indefinite term, provided that:
(a) this Licence will immediately and automatically terminate if you breach any of its provisions, in which case you must immediately destroy the Software and all your copies; and
(b) you may terminate this Licence by uninstalling the Software and all your copies, destroying same and notifying Endace in writing of termination.

9. No Warranties:
ENDACE AND THE OWNERS PROVIDE THE SOFTWARE “AS IS” AND MAKE NO WARRANTIES IN RESPECT OF THE SOFTWARE, EITHER EXPRESS OR IMPLIED.  TO THE EXTENT PERMISSIBLE BY LAW, ALL CONDITIONS AND WARRANTIES (STATUTORY, EXPRESS OR IMPLIED) ARE EXCLUDED INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.

Without limiting the generality of the preceding sentence, Endace makes no warranties that (i) future versions of the Software, if any, will contain features similar to or the same as the Software; or (ii) operation of the Software will be uninterrupted or error-free.

10. Exclusion of Liability:
OTHER THAN FOR (I) NEGLIGENT ACTS OR OMISSIONS CAUSING DEATH OR PERSONAL INJURY TO ANY PERSON, OR (II) FRAUD, FOR WHICH LIABILITY IS NOT LIMITED:
A. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LIABILITY FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGE OR LOSS OF BUSINESS, DATA OR PROFITS HOWEVER ARISING IS EXPRESSLY EXCLUDED; AND
B. ENDACE’S AND THE OWNERS’ MAXIMUM JOINT LIABILITY SHALL BE LIMITED TO THE LICENCE FEE (IF ANY) PAID BY YOU FOR THE SOFTWARE PLUS, WHERE YOU HAVE ACQUIRED THE SOFTWARE AS PART OF THE PURCHASE OF A PRODUCT, THE PURCHASE PRICE OF THAT PRODUCT.

11. Legal and Regulatory approvals:
You agree that it is your responsibility to obtain any legal or regulatory approvals required for installation and/or use of the Software.  

12. Intellectual Property:
You acknowledge that all copyright, trade marks, patents and other intellectual property in or relating to the Software and any derivative works thereof, including but not limited to all code, images, photographs, animations, video, audio, music, text and data incorporated in the Software are owned by Endace and/or the Owners.  

13. Indemnity:
You shall defend, indemnify and hold harmless Endace and the Owners against any losses, damages, suits and other liabilities arising in whole or in part out of your acts or omissions in connection with this agreement and your use of the Software and any derivative works, including without limitation:  (1) injuries to persons, including death or disease; (2) damage to property; and (3) your failure to comply with applicable law. 

14. Benefit of Agreement:
This Licence is for the benefit of and is enforceable by the Owners.

15. Export:
You must adhere to any applicable export control laws and regulations and shall not export or re-export any Products or technical data received or the direct product of such technical data except in compliance with the applicable export control laws and regulations.

16. General:
(a) This license represents the whole of the contract and understanding between the parties; and replaces all prior agreements and understandings between the parties, whether written, oral or both, with respect to its subject matter.
(b) No addition or modification (including without limitation no additional warranty or representation) will be binding on either party unless made in writing and signed by both parties.
(c) Failure or neglect of Endace to enforce any provision of this Licence at any time shall not be construed or deemed to be a waiver of its rights and shall not in any way affect the validity of this Licence or any of its provisions nor prejudice Endace’s right to take subsequent action.
(d) In the event that any provision of this Licence is deemed by any competent authority having jurisdiction to be invalid, unlawful or unenforceable to any extent, that provision shall to that extent only be severed from the remaining provisions which shall continue to be valid.
(e) You agree that this Licence shall be construed in accordance with New Zealand law and that New Zealand courts shall have non-exclusive jurisdiction over any disputes relating to this Licence.

EDM       Endace End User Licence Agreement 071113