NETLAB+ VE SOFTWARE LICENSE AGREEMENT
NETLAB+ VE SOFTWARE LICENSE AGREEMENT
This Software License Agreement (this "Agreement") governs your use of software provided by Network Development Group, Inc. ("NDG") or an NDG reseller. This Agreement is a binding, legal agreement between NDG and the Institution that you are employed by ("Licensee").
You (the individual accepting this Agreement on behalf of Licensee) represent and warrant that you are fully authorized to enter into this Agreement and bind Licensee to its obligations hereunder. CAREFULLY READ ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT PRIOR TO ACQUIRING AND USING NDG'S SOFTWARE. By accepting the terms of this Agreement, and/or by installing or using the Software, Licensee agrees to be bound by this Agreement.
If Licensee does not agree to be bound by the terms of this Agreement, then NDG does not grant Licensee a license to install or use the Software and, if Licensee previously paid for the Software and has not used the Software, Licensee may obtain a refund in accordance with the refund policy of either: (a) the reseller of the Software from whom Licensee purchased it or (b) NDG, if Licensee obtained the Software directly from NDG.
The official language of this Agreement is English. If this Agreement is translated into a language other than English and there is a conflict of terms between the English and the other language, the English version will control.
1. DEFINITIONS. The following terms shall have the meanings set forth below:
1.1. "Affiliated Institution" means an Institution that is working with Licensee through a contractual affiliation, grant arrangement, or other consortium or legal association. NDG reserves the right in its reasonable discretion to determine whether an Institution qualifies as an Affiliated Institution under this Agreement.
1.2. "Authorized User" means an employee, contractor, or learner of Licensee or an Affiliated Institutions who has been validly authorized to use the Software.
1.3. "Content" means instructional content (such as lab topologies, courses, curricula, and lab exercises) used, or designed for use, with the Software.
1.4. "Current Release" means the latest version of the Software offered by NDG generally, including all Updates and Enhancements to it.
1.5. "Defect" means a failure of the Software to conform to the functional specifications set forth in the current published Documentation, as reasonably determined by NDG.
1.6. "Designated Location" means the address of Licensee where the Virtual Appliance is authorized to be installed, as identified in the Order.
1.7. "Designated Operating Environment" means the Virtual Appliance and other hardware and third-party software required for use of the Software, configured in accordance with the specifications and connectivity requirements made available by NDG to Licensee. The Designated Operating Environment is described in further detail on NDG's website, as may be updated from time to time.
1.8. "Documentation" means the manuals and other instructional documents made available to Licensee in connection with the Software and which are generally made available to NDG's licensees.
1.9. "Effective Date" means the date on which an Order has been accepted and agreed to by both parties.
1.10. "Enhancements" means improvements or additions added by NDG to the Software and NDG Content after the date of this Agreement and generally made available by NDG to its Licensees on Maintenance and Support. Enhancements do not include new functionality or major enhancements separately priced by NDG.
1.11. "Institution" means any one of the following: (a) an accredited, degree-granting higher education institution offering 2- or 4-year college degree programs, including a technical school offering accredited 2- or 4-year degrees, (b) a high school; (c) a public education school system; (d) a government organization, to the extent providing academic programs; and (e) a non-profit or NGO, to the extent providing academic programs.
1.12. "Licensee Scripts" means scripts, software and code created using the API by Licensee, a Licensee contractor, or an Authorized User.
1.13. "Maintenance and Support" means the Maintenance and Support services provided by NDG under the terms of this Agreement, including the Addendum.
1.14. "Order" means a web-based, electronic or printed order for the Software and/or related services submitted by Licensee to NDG or an authorized NDG reseller. All Orders must be accepted by NDG or such reseller, and are subject to the terms of this Agreement.
1.15. "Pod" means an identified collection of physical equipment or virtual machines that are networked together and can be scheduled for access through the Software.
1.16. "Software" means the NDG proprietary NETLAB+ Virtual Edition software product installed on the Virtual Appliance, and all Updates and Enhancements to it, as well as any customized versions of Software developed by NDG for Licensee pursuant to this Agreement.
1.17. "Supported Equipment" means the servers, switches, routers, and other physical equipment and virtual machines specified by NDG on NDG's website, as updated from time to time, as being supported by the Software.
1.18. "Third Party Products" means the third party software products and content used in the Designated Operating Environment and described on NDG's website, as updated from time to time. Third Party Products include both: (a) third-party software and content installed in and made available by NDG as part of the Virtual Appliance ("NDG-Supplied Third Party Products"), and (b) third-party software and content acquired by Licensee and installed as part of the Virtual Appliance or Designated Operating Environment ("Licensee-Supplied Third Party Products")
1.19. "Updates" means Software changes made by NDG to correct Defects in the Software delivered hereunder.
1.20. "Virtual Appliance" means the NDG-supplied virtual server on which the Software has been installed.
2. LICENSE GRANT
2.1. License to Software. Subject to the terms of this Agreement, including payment of all applicable fees by Licensee, NDG hereby grants to Licensee a perpetual, non-exclusive, non- transferable license to use in object code form only the Software and Documentation on a single Virtual Appliance in the Designated Location. The Software is licensed for use only in connection with: (a) the number of simultaneous active Pods as specified in the Order, and (b) the Designated Operating Environment and Supported Equipment. Licensee may make a reasonable number of backup copies of the Software and Virtual Appliance, so long as only one instance of the Software is in use at any one time. For the purpose of this Section, the term "simultaneous active Pods" means the number of Pods that are available for scheduling and use during a given lab reservation hour.
2.2. License Term. Subject to Licensee’s payment of the applicable license fee, the foregoing license is a perpetual license, and Licensee does NOT need to pay annual Maintenance and Support fees in order to continue to use the Software. The license term shall commence on the Effective Date. For clarity, if Licensee does not remain on Maintenance and Support, then Licensee will not receive Updates to the Software and associated Content. Section 3.1 of the Addendum provides additional information regarding the consequences of Maintenance and Support lapse.
2.3. Third Party ProductsThe Virtual Appliance includes certain NDG- Supplied Third Party Products which are provided by NDG at no charge along with the Software. Licensee agrees to comply with the license terms and conditions of third party vendors of such NDG-Supplied Third Party Products. An applicable list of the NDG-Supplied Third Party Products and the license terms and conditions, and as applicable details concerning how Licensee can obtain the NDG-Supplied Third Party Products on their own, can be found by visiting NDG's website and clicking on the "Legal Notices" section.
2.4. Authorized Users and Affiliated Institutions. Licensee, Affiliated Institutions, and their Authorized Users shall have the right to access and use the Software only: (a) in executable form as installed at the Designated Location and in the Designated Operating Environment; and (b) for their own internal use. Licensee may allow use of the Software by no more than the maximum number of permitted Affiliated Institutions as specified in the Order. Upon request, Licensee will inform NDG of its Affiliated Institutions. Licensee may recover its reasonable, direct costs (but not profit) from Authorized Users and/or Affiliated Institutions, but may not otherwise operate as a hosted service center or outsourcer for the Software. Licensee is fully responsible for all Authorized Users' and Affiliated Institutions' use of the Software and compliance with this Agreement. Without limiting the foregoing, Licensee is fully responsible for ensuring that Affiliated Institutions meet the requirements regarding Content set forth in Section 5 below. If Licensee becomes aware that any Authorized User or Affiliated Institution is in violation of any terms of this Agreement, then Licensee will: (i) immediately inform the Authorized User, the Affiliated Institution as applicable, and NDG of the violation, and (ii) cooperate with NDG in remedying and stopping such violation.
2.5. License Restrictions. Licensee shall not:
- copy, modify, assign, sublicense, sell or rent the Software or any interest therein (in the event Licensee grants a security interest in the Software, the secured party has no right to use or transfer the Software and/or any services);
- reverse engineer, disassemble, decompile or reverse compile the Software (the foregoing restriction includes but is not limited to review of data structures or similar materials produced by the Software);
- in any way change the operating system associated with the Software;
- disclose, publish or describe any identified security vulnerabilities or issues, or the results of any testing or benchmark tests, associated with the Software or of to any third party without NDG’s prior written consent; or
- modify or delete any data associated with the Software, including without limitation by decrypting or attempting to decrypt any encrypted data (except through the Software interfaces provided by NDG).
Any rights not expressly granted herein are hereby expressly reserved to NDG.
2.6. Changes. Licensee may change the Designated Location to a new address within the same organization by providing written notice to NDG. No changes to the Virtual Appliance shall be made by Licensee without written consent and direction of NDG. In particular, Licensee may not access or change the Virtual Appliance operating system or software, or change its system configuration, except as provided by the standard Software user interfaces.
2.7. Software Communications to NDG. Licensee understands and agrees that, in order to facilitate quality control, whenever an error event is generated in connection with Licensee's use of the Software, a notification may be electronically sent by Licensee to NDG. In addition, the Software may include product activation and other technology designed to prevent unauthorized use and copying. This technology may cause the Software and associated hardware to automatically connect to the Internet on a regular basis, may rely on license keys, and may prevent uses of the Software that are not permitted. Licensee consents to transmission of Software usage information to NDG and to NDG’s use of license keys and other technology designed to prevent unauthorized use and copying, and Licensee agrees not to circumvent or attempt to circumvent any such anti-copying mechanisms.
2.8. Connectivity Requirements. Licensee agrees that in order for the Software to function and for NDG to provide Maintenance and Support, including Updates and Enhancements to the Software and updated NDG-Supplied Content, Licensee will provide NDG with access to components in Licensee’s Designated Operating Environment and authorizes NDG to perform changes to such components as needed. To facilitate this access, Licensee will meet the connectivity requirements set out in NDG's website and documentation, as modified from time to time.
2.9. Backups. Licensee is solely responsible for maintaining timely backups of the Virtual Appliance and all associated third-party software components. NDG shall have no responsibility for loss of or damage to Licensee's data.
2.10. Prior Netlab+ Customers. Notwithstanding any earlier termination of Licensee's right to use a previously-acquired license of Netlab+ ("Prior Netlab+ License"), except for any termination of the Prior Netlab+ License due to Licensee’s breach, Licensee may continue to use its Prior Netlab+ License for a period of up to one (1) year from the Effective Date.
3. API TERMS AND RESTRICTIONS
3.1. Introduction. NDG provides an application programming interface ("API") as part of the Software. The API allows Licensee to create scripts and programs to automate certain tasks performed through the Software and to enable certain integrations.
3.2. Limits on Usage. NDG may from time to time set and update limits on Licensee’s usage of the API, including without limitation limits on API calls and requests and access to data (the "API Limits"). The API Limits will be described on the NDG website. Licensee agrees to comply with all API Limits, and further agrees that it will not use the API in a manner that constitutes excessive or abusive usage, or otherwise is in breach with the terms of this Agreement. Without limiting the foregoing, Licensee agrees not to use the API in a manner that provides a cloud-based service for third parties that competes with the Software and services provided by NDG, or that provides API functionality to third parties. Licensee will not circumvent or attempt to circumvent any API Limits.
3.3. Monitoring. NDG reserves the right to monitor Licensee's API usage to verify Licensee's compliance with the terms of this Section 3 and to improve NDG's products and services. Licensee agrees not to interfere with any such monitoring.
3.4. Updates. NDG may update the API from time to time without notice to Licensee. Licensee acknowledges and agrees that such updates may cause issues with any scripts or programs written with earlier versions of the API, and that it is Licensee's sole responsibility to update any such scripts or programs. NDG does not guarantee backwards compatibility when it updates the API.
3.5. Liability for API Usage. Licensee is solely liable and responsible for Licensee's and Authorized Users' use of Licensee Scripts. NDG has no liability or responsibility for mistakes or actions caused by Licensee Scripts, and/or any errors, misuse or unintended use associated with Licensee's or any Authorized User's use of the API or Licensee Scripts.
4. IMPLEMENTATION; DESIGNATED OPERATING ENVIRONMENT
4.1. Implementation. The Virtual Appliance is provided to Licensee by means of a download from NDG’s website. Except to the extent specified in the Order, Licensee will be solely responsible for setting up the Software and setting up and maintaining the Designated Operating Environment, including without limitation procuring, paying for, and maintaining all Licensee-Supplied Third Party Products.
4.2. Restrictions. Licensee agrees not to access, attempt to access, modify or attempt to modify the underlying operating system or operating system command line interface (shell) of the Virtual Appliance.
4.3. Designated Operating Environment Disclaimers. NDG uses diligent efforts to ensure that the Software and Virtual Appliance work with the other parts of the Designated Operating Environment and the Supported Equipment. However, NDG does not provide any warranties or compatibility guarantees, expressed or implied, for any part of the Designated Operating Environment, the Supported Equipment, or any other third party hardware, service, system or software. Standard equipment recommendations from NDG are based on the models and specifications that have been tested by NDG and/or other NDG licensees. Only NDG’s standard equipment recommendations in the Designated Operating Environment are supported, even if NDG offers opinion or speculation about other proposed third party hardware or software. Certain third party software (such as VMware virtualization products) may have additional hardware requirements. Licensee is solely responsible for checking with the vendor to review third party software and hardware requirements and compatibility. Other site-specific capacity requirements, including memory, CPU, and storage may factor into Licensee’s equipment requirements. Licensee acknowledges that NDG has no control or responsibility for changes to Supported Equipment made by the manufacturers of or providers of support for such Supported Equipment, including but not limited to changes to Supported Equipment software interfaces and device drivers, and that NDG may remove any equipment from the list of Supported Equipment at any time, with or without notice.
5. CONTENT
5.1. NDG-Supplied Content. NDG may include with the Software its own and/or third-party Content ("NDG-Supplied Content"). In addition, the Software may have configuration options that allow Licensee to indicate that Licensee has the right to certain third-party Content (e.g., by participating in a program provided by a third-party information technology vendor). If Licensee indicates to NDG by making the appropriate configuration selections in the Software or in any other manner that it is entitled to receive Content from one or more information technology vendors, Licensee represents and warrants that it has the appropriate business partnership or other contractual relationship with such information technology vendor(s) that give Licensee the right to receive such Content. Licensee will notify NDG by e-mail to support@netdevgroup.com if its right to receive any such third-party Content is terminated or changes. NDG may, but is under no requirement to, verify that Licensee has the rights to receive selected third-party Content. In its discretion, NDG may make certain NDG-Supplied Content available to Licensee only upon payment of an additional fee. NDG reserves the right to require Licensee to agree to additional terms and conditions associated with the use of NDG-Supplied Content. In addition to the limitations in this Section 5.1, Licensee agrees that its use of NDG-Supplied Content is limited strictly to use in conjunction with the Software and Virtual Appliance. In no event shall Licensee use, copy, transfer or distribute NDG-Supplied Content outside of the Software or Virtual Appliance.
5.2. Content Disclaimer. All NDG-Supplied Content is provided "AS-IS", without warranty of any kind, NDG DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO NDG- SUPPLIED CONTENT, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
5.3. Licensee Content. Licensee may prepare and upload its own Content and/or content associated with Licensee-Supplied Third Party Products (collectively, "Licensee Content") for use with the Software. Licensee represents and warrants that Licensee Content does not infringe or violate the intellectual property or any other rights of any third party. Licensee or its suppliers retain sole rights in and to its Licensee Content. NDG does not obtain any rights to use any Licensee Content under this Agreement (except in connection with providing Maintenance and Support services hereunder).
5.4. Blocking of Content. NDG may restrict Licensee from access to Content to which NDG in its sole discretion determines Licensee does not have authorization.
6. MAINTENANCE AND SUPPORT
Maintenance and Support services will be provided to Licensee as set out in the Maintenance and Support Addendum to this Agreement. The initial Maintenance and Support term begins on the date of download of the Software and continues for an initial annual term. Thereafter, Maintenance and Support shall automatically renew for subsequent annual renewal terms, unless either party provides the other party with at least sixty (60) days prior written notice of its intent not to renew Maintenance and Support. NDG shall have no obligation to maintain and support the Software if Licensee is in breach of this Agreement, including but not limited to breach of Licensee’s obligations relating to access to the Virtual Appliance operating system in Section 4.2 above.
7. OWNERSHIP
7.1. NDG Intellectual Property. As between NDG and Licensee, NDG shall exclusively own all Software, the Documentation, the NDG-developed Content, and all associated data models, algorithms, processes, screen formats, reporting formats, and other material and information, including all associated patents, copyrights, trademarks, service marks, trade secrets and other intellectual property related to the foregoing (collectively "NDG Intellectual Property"); provided however, that the NDG Intellectual Property shall not include any materials delivered to NDG by Licensee. Except as expressly set forth in this Agreement, Licensee obtains no ownership or other rights in or to the NDG Intellectual Property. Title shall not pass for the Software to Licensee or any other third party on account of this Agreement. Licensee may not share administrator-level documentation with any third party, including without limitation any Affiliated Institutions.
7.2. NDG Trademarks. Licensee acknowledges and agrees that NDG and its licensors’ trademarks, brand names and copyright notices will be included on the Software, Content and Documentation. Licensee agrees not to remove, modify, obscure or hide any trademarks, brand names or any other proprietary rights notices included on the Software and Documentation.
7.3. Public Software. Licensee will not, without NDG’s express prior written consent, (i) incorporate, combine, or distribute any Software or any derivative thereof with any Public Software (as defined below), or (ii) use any Public Software in the operation of the Software, each of (i) and (ii) in such a way that would cause the Software or any derivative thereof to be subject to all or part of the license obligations or other intellectual property related terms with respect to such Public Software, including the obligations that the Software or any derivative thereof be disclosed or distributed as source code, be licensed for the purpose of making derivatives of such software, or be redistributed free of charge, contrary to the terms and conditions of this Agreement. As used in this subsection, "Public Software" means any software that contains, or is derived in whole or in part from any software distributed publicly as source code, commonly referred to as open source software, including software licensed under the GNU General Public License, or GPL.
7.4. Feedback. NDG may use any feedback regarding any suggested improvements related to the Software provided by Licensee for any purpose, including without limitation to modify, supplement, or improve the Software and Content, without payment or compensation to Licensee and with or without attribution.
8. PAYMENTS
8.1. Fees. In consideration of the license granted and services provided under this Agreement, Licensee shall pay NDG or NDG’s reseller the fee(s) set forth in the Order. The initial fee is due prior to delivery of the Software. Fees for renewal service terms are due prior to the date of renewal. NDG agrees to provide notice online of Licensee’s date of renewal. Upon request, NDG or NDG’s reseller will provide Licensee with an invoice for the Order; provided that the delivery of such invoice will not change the due dates for fees due for renewal terms. If Licensee does not pay within the time frame set out above, then NDG may, at its option, do either or both of the following: (a) suspend providing support, maintenance and any other agreed services to Licensee; and (b)charge a prorated renewal cost.
8.2. Taxes. Licensee understands and agrees that amounts for taxes have not been included in any Fees and Licensee agrees to pay all present or future sales, excise, use, value-added or other similar taxes or duties (not including taxes or duties on the income of NDG) levied or based on payments made pursuant to this Agreement. If Licensee is a tax-exempt entity, Licensee will provide appropriate documentation to NDG.
9. TERMINATION
9.1. Termination for Default. Upon breach of any of the terms of this Agreement by Licensee, including without limitation failure to pay license fees due, NDG may terminate this Agreement upon notice to Licensee, and upon such termination NDG may use electronic means to disable the Software. NDG may also terminate or suspend this Agreement and/or Licensee’s rights hereunder if an internet system status check (made daily or on some other regular basis as determined by NDG) between Licensee’s Designated Operating Environment and NDG is not successful.
9.2. Rights and Duties Upon Termination. Upon termination by NDG for Licensee's default, all amounts under this Agreement shall become immediately due and payable. Upon termination of this Agreement, Licensee’s rights to the Software shall cease, and Licensee shall discontinue all use of the Software and Documentation in Licensee’s possession and/or control and destroy or return to NDG all copies of the Software and Documentation.
10. WARRANTIES AND DISCLAIMERS
10.1. Limited NDG Warranty and Disclaimers. NDG warrants for a period of sixty (60) days from the Effective Date that the Software shall operate without material Defects. Licensee’s sole remedy under this warranty shall be to receive Maintenance and Support services as described herein. THIS LIMITED EXPRESS WARRANTY SPECIFIED ABOVE IS THE ONLY WARRANTY MADE BY NDG AND NDG DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR AGAINST INFRINGEMENT. NDG DOES NOT WARRANT THAT ENHANCEMENTS AND/OR NEW RELEASES WILL BE COMPATIBLE WITH ANY RELEASE OTHER THAN THE MOST CURRENT RELEASE, NOR DOES NDG WARRANT THAT ENHANCEMENTS AND/OR NEW RELEASES WILL BE COMPATIBLE WITH CUSTOMIZED SOFTWARE. NDG does not warrant that the Software will be error-free or uninterrupted, or that the Software will meet Licensee’s requirements. NDG will make reasonable efforts to support use of the Software with new versions and releases of currently supported Third Party Products, but cannot guarantee that the Software will work with any such new versions and releases.
10.2. Negation of Warranties. The above warranty shall be negated by (a) Licensee's modification of the Software or Documentation, or use of the Software in a manner not permitted by this Agreement, (b) Licensee's use of the Software in conjunction with third party software or hardware not provided by NDG, (c) installation or use of the Software in an environment other than the Designated Operating Environment or access to or attempted access to or modification or attempted modification of the related underlying operating system, or (d) failure to install corrective code or the current version of the Software, including Updates and Enhancements to it. 10.3. Remedies. Remedies for the breach of warranty obligations hereunder shall be limited to replacement or repair of such non-conforming Software or portion thereof. THE FOREGOING SHALL BE LICENSEE'S SOLE AND EXCLUSIVE REMEDY FOR ANY MALFUNCTION OR DEFECT IN THE SOFTWARE.
10.4. Licensee Warranty. Licensee warrants that: (a) it is an Institution in good standing; (b) it has all right and authority to enter into and perform under this Agreement; and (c) the entering into and performance of this Agreement will not violate any other agreements or laws applicable to Licensee, including without limitation third-party software license agreements. Licensee further warrants that it has had full opportunity to review the Software, its functions, requirements, and related security matters prior to entering into this Agreement, and that it has satisfied itself that the Software and related security matters will meet Licensee’s requirements. NDG will have no requirement to change the Software or its security policies and procedures during the term of this Agreement due to Licensee’s requirements.
10.5. Licensee Data. Licensee agrees that Licensee is solely responsible for maintaining the privacy and security of any personally identifiable information and other Licensee data that may be stored on the Virtual Appliance or any other Licensee systems, and that Licensee will comply with all applicable privacy laws associated with such data.
10.6. LIMITATION OF LIABILITY. NDG'S AND ITS LICENSORS' AGGREGATE AND TOTAL LIABILITY UNDER THIS AGREEMENT FOR ALL CLAIMS SHALL BE LIMITED TO DIRECT DAMAGES AND SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY LICENSEE TO NDG DURING THE 12 MONTHS PRIOR TO THE DATE ON WHICH THE CLAIM AROSE. IN NO EVENT SHALL NDG AND ITS LICENSORS BE LIABLE FOR INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING FROM THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST SAVINGS, AND LOSS OF DATA, EVEN IF NDG HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES. ANY CLAIM AGAINST NDG ARISING UNDER THIS AGREEMENT MUST BE BROUGHT BY LICENSEE AND NOT BY ANY THIRD PARTY, AND MUST BE BROUGHT WITHIN ONE (1) YEAR AFTER THE EVENT GIVING RISE TO THE CAUSE OF ACTION HAS OCCURRED. THE LIMITATIONS OF LIABILITY HEREIN SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW AND REGARDLESS OF WHETHER ANY REMEDY HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
10.7. Disclaimers Related to Internet Access. The Software, when used with certain Supported Equipment, may have optional functionality to allow Authorized Users (including without limitation remote Authorized Users) to access and use the Internet. If Licensee chooses to use such optional functionality, Licensee agrees that it is solely responsible for configuring and managing the firewalls and software that is provided with the Supported Equipment, including without limitation all security features and policies associated with the Supported Equipment firewalls. In addition, Licensee specifically agrees to log all Internet usage by Authorized Users made through the Supported Equipment lab environment, following logging instructions and advice provided by the vendor of the Supported Equipment, subject to all applicable laws. Licensee acknowledges that Licensee may not be able to track Internet usage by MAC address, so it is vital that Licensee set up logging appropriately. Licensee agrees that Licensee is fully responsible for, and that NDG will have no liability or responsibility for: (a) any Internet use by any users of the Supported Equipment or any additional lab environments that you set up through the Software, and (b) monitoring, securing and logging Internet activity occurring through the Supported Equipment lab training environment.
11. INDEMNIFICATION
11.1. By NDG. NDG shall indemnify, defend and hold harmless Licensee against any loss, damage or expense actually awarded against Licensee as a result of claims, actions, or proceedings brought by any third party alleging infringement by the Software or Documentation of any United States of America copyright, trademark, patent, or other proprietary rights, and against its reasonable attorneys' fees and any money damages or costs awarded in respect of any such claim(s) and any suit raising any such claim(s); provided, however, that Licensee shall have given NDG prompt written notice of such claim and cooperates with NDG in the defense of the claim. NDG shall have sole control of the defense of such claim, suit, demand, or action and the settlement or compromise thereof. Further, NDG shall have no liability for any infringement action or claim that is based upon or arises from: (a) failure of Licensee to install corrective code or the most current version of the Software; or (b) code and/or design specifications furnished by Licensee or its agent; or (c) any combination of the Software or Documentation with items not supplied by NDG or required for use of the Software; or (d) any modification of the Software or Documentation by Licensee. This Section sets forth the exclusive remedy of Licensee against NDG with respect to any action or claim of infringement under this Agreement.
11.2. By Licensee. Subject to Section 11.3 below, Licensee shall indemnify, defend and hold harmless NDG against any loss, damage or expense incurred by NDG as a result of claims, actions, or proceedings brought by any third party arising from (a) Licensee's, or its agents' or employees' breach of the terms of this Agreement; (b) acts of negligence or willful misconduct by any employee, or agent, of Licensee; (c) failure of Licensee to install corrective code or the most current version of the Software; (d) code and/or design specifications furnished by Licensee or its agent; and (e) Licensee-Supplied Third Party Products and Licensee Content.
11.3. No Waiver of Immunity Acts. Notwithstanding anything to the contrary in this Section or otherwise in this Agreement, NDG agrees that Licensee is not waiving under this Agreement any of its protections, rights and defenses under applicable tort claims and governmental immunity acts ("Immunity Acts"), including without limitation provisions in such acts regarding limitation of available damages. The applicability of any obligation of Licensee in this Agreement to indemnify, defend or hold NDG harmless is subject to the provisions of any applicable Immunity Acts. However, if the Immunity Acts limit the ability of Licensee to indemnify, defend or hold harmless NDG, Licensee shall remain fully responsible for the matters covered in Sections 11.2(a) through 11.2(e) to the greatest extent allowed by applicable law.
12. CONFIDENTIAL INFORMATION
12.1. Confidential Information. Licensee understands and agrees that the Software, Documentation and business plans and processes of NDG, along with any other information disclosed by NDG to Licensee that would reasonably be considered confidential, constitute trade secrets and confidential information of NDG ("NDG Confidential Information"). Likewise, NDG understands and agrees that information regarding Authorized Users along with any other information disclosed by Licensee to NDG that would reasonably be considered confidential, constitutes confidential information of Licensee ("Licensee Confidential Information"). Notwithstanding the foregoing, Confidential Information does not include information that: (a) is or becomes publicly known or available without breach of this Agreement; (b) is received by a receiving party from a third party without breach of any obligation of confidentiality; (c) was previously known by the receiving party as shown by its written records; or (d) is independently developed by a party without reference to the Confidential Information of the other party.
12.2. Confidentiality Obligations. Except as expressly provided herein, neither party shall disclose to or allow a third party to access or use the other party’s Confidential Information, or use such Confidential Information except as expressly allowed in this Agreement or as required by law; provided that if a party is required by law to disclose any of the other party’s Confidential Information, then, unless prohibited by law, the receiving party will provide the disclosing party with notice of such requirement and allow the disclosing party to attempt to limit the scope of any required disclosure in order to protect the disclosing party’s Confidential Information.
12.3. Security. NDG agrees to use reasonable administrative, technical, and physical procedures and mechanisms to maintain the security of and to prevent unauthorized access to Licensee’s Confidential Information.
12.4. Analysis of Data. Licensee agrees that NDG may from time to time: (a) derive and compile certain aggregate and analytical data related to Licensee's use of the Software and the services provided hereunder (the "Aggregate Data"), which shall not contain any information that could identify a specific user, (b) combine such Aggregate Data with data from other customers; and (c) use the Aggregate Data for developing and improving NDG’s products and services, and for other purposes.
12.5. Use of Licensee Name. Licensee acknowledges and agrees that, unless Licensee has expressly acquired in the Order the ability to restrict NDG's rights under this Section, NDG may use Licensee’s name in a list of clients and testimonials on the NDG web site and other marketing materials.
13. MISCELLANEOUS
13.1. Governing Law.
- If Licensee is located in the United States of America, then the terms of this Section 13.1(a) shall apply. This Agreement shall be governed by and construed in accordance with the substantive laws of the state of Licensee’s principal place of operations, without regard to its conflicts of laws principles and excluding application of the United Nations Convention On Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. Each party agrees to non-exclusive jurisdiction and venue for any claim brought under or related to the subject matter of this Agreement in a court of competent jurisdiction in Wake County and Durham County, North Carolina, United States of America.
- If Licensee is located outside of the United States of America, then the terms of this Section 13.1(b) shall apply. This Agreement shall be governed by and construed in accordance with the substantive laws of the State of North Carolina, the United States of America covering contracts made and to be performed in that State, without regard to its conflicts of laws principles and excluding application of the United Nations Convention On Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. Each party agrees that any claim or dispute under or related to the subject matter of this Agreement shall be settled by binding arbitration before a single arbitrator pursuant to the Commercial Arbitration Rules of the American Arbitration Association. The arbitration will take place in Raleigh, North Carolina. The award of the arbitrator shall be enforceable in any court of law having jurisdiction. Nothing in the foregoing shall prevent either party from bringing a claim for temporary injunctive relief in a court of competent jurisdiction.
13.2. Force Majeure. Neither party shall be liable to the other by reason of any failure of performance hereunder (except failure to pay) if such failure arises out of causes beyond such party's reasonable control, despite the reasonable efforts and without the fault or negligence of such party. Any party experiencing such an event shall give as prompt notice as possible under the circumstances.
13.3. Severability. If any provision of this Agreement is held to be unenforceable, then both parties shall be relieved of all obligations arising under such provision, but only to the extent that such provision is unenforceable, and this Agreement shall be deemed amended by modifying such provision to the extent necessary to make it enforceable while preserving its intent or, if that is not possible, by substituting another provision that is enforceable and achieves the same objective and economic result. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH PROVISION OF THIS AGREEMENT WHICH PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, INDEMNIFICATION OR EXCLUSION OF DAMAGES OR OTHER REMEDIES IS INTENDED TO BE ENFORCED AS SUCH. FURTHER, IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE EVENT ANY REMEDY UNDER THIS AGREEMENT IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES OR OTHER REMEDIES SHALL REMAIN IN EFFECT.
13.4. Waiver. No delay or omission by either party to exercise any right or power it has under this Agreement shall impair or be construed as a waiver of such right or power. A waiver by either party of any covenant or breach shall not be construed to be a waiver of any succeeding breach or of any other covenant. All waivers must be in writing and signed by the party waiving its rights.
13.5. No Third Party Beneficiaries. The parties agree that this Agreement is for the benefit of the parties hereto and is not intended to confer any legal rights or benefits on any third party and that there are no third party beneficiaries to this Agreement or any part or specific provision of this Agreement.
13.6. Compliance with Laws. Licensee shall comply with all applicable federal, state, foreign and local laws, statutes, rules and regulations, including without limitation all applicable export, re- export, and import laws. Without limiting the foregoing, Licensee shall ensure that neither the Software, nor any direct product thereof, is exported or imported, directly or indirectly, in violation of applicable laws. Failure to comply with this provision shall constitute a material default under this Agreement entitling the non-breaching party to terminate this Agreement. Licensee acknowledges that the Software includes encryption functionality and that Licensee is responsible for determining the export and import rules associated with such encryption. NDG may in its discretion, but is not required to, not allow delivery of the Software to locations, organizations or individuals if NDG believes in good faith such delivery would be in violation of export or import laws or regulations; provided that the foregoing shall not limit or modify Licensee’s responsibility to comply with laws under this Section.
13.7. Entire Agreement. This Agreement, including all of its attachments, each of which is incorporated into this Agreement, is the entire agreement between the parties with respect to its subject matter. No purchase order terms or other terms provided by Licensee to NDG will apply or form any part of this Agreement. This Agreement may amended only by the mutual written agreement of the parties, which may include Licensee’s electronic acceptance of a new form of NDG Licensee Agreement that is included with a new Software version, Update or Enhancement.
13.8. Survival of Provisions. Sections 1, 5, 7, 10, 11, 12, and 13 and all accrued and unpaid obligations arising hereunder shall survive the termination hereof.
13.9. Audit. Upon reasonable prior written notice and during normal business hours and no more than once in a twelve month period, NDG, its agents or representatives, shall have the right at its own expense to visit the premises of Licensee, including all Designated Locations, if applicable, and any applicable books and records of Licensee for the purpose of conducting an audit to determine compliance with the terms of this Agreement. Further, NDG may remotely check compliance with the terms of this Agreement by accessing and reviewing the Software. Licensee will provide reasonable assistance and access to information in the course of such audit. Should NDG find that Licensee is not in compliance, Licensee shall, in addition to paying additional damages as may be due, be responsible for the costs of the audit and all related expenses. In addition, and without limiting the foregoing, Licensees agrees to have an authorized officer or manager document and certify that Licensee’s use of the Software conforms to this Agreement within 14 calendar days after NDG's request.
ADDENDUM -- MAINTENANCE AND SUPPORT TERMS
1. MAINTENANCE AND SUPPORT
1.1. Error Reporting. Licensee may report Defects via NDG’s website, phone or e-mail. Licensee agrees to follow the support procedures set forth on NDG's website, which also contains NDG's standard support hours.
1.2. Operational Support. Licensee may also call or e-mail NDG with general questions on how to install or operate the Software. However, NDG’s obligation to provide this operational support is limited to the number of operational support hours as specified on NDG’s website.
1.3. Software Maintenance. NDG shall use commercially reasonable efforts to promptly address Defects reported by Licensee.
1.4. Updates and Enhancements. NDG shall supply Licensee with Updates and Enhancements that are released generally to other Licensees on maintenance and support. Enhancements shall be developed at NDG's sole discretion. Updates and Enhancements will not be provided unless payment of the Maintenance and Support fee is current.
1.5. On-Site Services. Maintenance and Support does not include any on-site services. On-site installation services are available for a separate fee from NDG and from authorized third-party installers. NOTE: NDG is not required to support or assist third-party installers who are not authorized by NDG. See NDG’s website for additional details.
1.6. Other Support Terms. Multi-year support terms and other installation, configuration and premium support services may be specified in the Order. All services provided are subject to the terms of this Agreement.
2. LIMITATIONS AND LICENSEE RESPONSIBILITIES
2.1. Licensee Issues. If Licensee notifies NDG of a problem and NDG determines that the problem is due to: (a) Licensee's incorrect or improper use of the Software; (b) failure to comply with the terms of this Addendum or the Agreement; (c) third-party hardware, software or Content issues; (d) connectivity or networking issues including bandwidth, third-party user or infrastructure-installed software, firewalls, and other Licensee or end user premise setup issues; or (e) Licensee Scripts, NDG shall have no obligation to take any action to correct the problem. At Licensee's request and at NDG's sole discretion, NDG may attempt to correct the problem, and Licensee shall pay NDG the then current time and materials rate for all services provided and all expenses of NDG associated with performance of those services, whether or not the problem is corrected.
2.2. Current Version. NDG's obligations under this Addendum shall apply only to the Current Release and the immediately prior release, and only to Licensee’s use of the Software in connection with the Supported Equipment.
2.3. Third Party Products. NDG, in order to assist Licensee, may assist in supporting the Designated Operating Environment, the Supported Equipment, and the Third Party Products, but is under no obligation to do so. Licensee understands and agrees that the Third Party Products may not be supported and/or maintained by the Third Party Product vendor. NDG may add or remove NDG-Supplied Third Party Products so long as the functionality of the Software is not materially adversely affected.
2.4. Modified Software. Maintenance and Support does not cover modified or customized Software, or Software used contrary to the terms of the Agreement. Without limiting the foregoing, Maintenance and Support does not cover problems caused in whole or in part by Licensee's, or its agents', access to, attempted access to, modification of or attempted modification of the Virtual Appliance operating system or operating system command line (shell).
2.5. Licensee Scripts. Nothing in this Addendum or this Agreement covers consulting, advise, assistance, support or maintenance for Licensee Scripts; the provision of such items will only be as mutually agreed by the parties.
2.6. Connectivity Requirements. NDG shall not be obligated to provide Maintenance and Support if the connectivity requirements described in Section 2.7 of the Agreement are not provided by Licensee.
2.7. Delay. NDG shall not be responsible for delays in performance or failure to perform under any provision of the Agreement or this Addendum to the extent such delays or failures result from Licensee's acts or omissions.
2.8. Licensee Assistance. Licensee shall perform tasks as requested by NDG to aid in the resolution of problems, and shall implement all reasonable workarounds to problems as directed by NDG.
2.9. Disclaimer. NDG shall not be responsible under this Addendum to provide Updates, Enhancements, or any other maintenance or support for Software if any of the events set out in Section 10.2 (a), (b), (c) and/or (d) of the Agreement have occurred.
2.10. Contact Persons. Licensee will designate no more than two (2) of its employees as "Contact Persons" to serve as the sole designated contacts for dealing with NDG on support questions. Before contacting NDG with a question, a Contact Person shall take reasonable steps to resolve the question. For example, the Contact Person shall recreate and verify the alleged problem and review the documentation before contacting NDG. Calls and e-mails for support services shall be initiated by Licensee to NDG only by a Contact Person. Licensee will notify NDG immediately if one or both of its Contact Persons changes.
3. OTHER TERMS
3.1. Lapse. In the event Licensee terminates Maintenance and Support and subsequently wishes to reinstate Maintenance and Support, Licensee must pay NDG for all (or, in NDG’s sole discretion, a specified portion of) intervening Maintenance and Support Fees associated with the lapse of Maintenance and Support.
3.2. Updates to Third-Party Systems. For the avoidance of doubt, NDG will not be required to provide any Updates or new code, or to provide any other services, that may be needed to enable the Software to work with different third-party software and systems than the third-party software and systems with which the Software was originally implemented.
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