MonitorIT 10.3.3

EULA - End User License Agreement

END-USER SOFTWARE LICENSE AGREEMENT (EULA)
IMPORTANT PLEASE READ CAREFULLY

THIS IS A SOFTWARE LICENSE AGREEMENT ('AGREEMENT'). PLEASE READ IT CAREFULLY AS IT GOVERNS YOUR USE OF THE SOFTWARE AND ACCOMPANYING DOCUMENTATION ('DOCUMENTATION') (COLLECTIVELY, THE 'SOFTWARE'). BY CLICKING ON THE 'ACCEPT' BUTTON, USING THE SOFTWARE, OR SIGNING A GOLIATH ENROLLMENT FORM, YOU CONSENT TO BE BOUND BY AND BECOME A PARTY TO THIS AGREEMENT ON BEHALF OF YOURSELF PERSONALLY OR THE ENTITY BY WHICH YOU ARE EMPLOYED AND/OR REPRESENT ('YOU'). YOU WARRANT THAT YOU HAVE ADEQUATE LEGAL POWER AND CAPACITY TO ENTER INTO THIS AGREEMENT AND ARE AUTHORIZED TO BIND THE ENTITY BY WHICH YOU ARE EMPLOYED OR WHICH YOU REPRESENT. IF YOU DO NOT AGREE WITH ALL OF THESE TERMS OR DO NOT UNDERSTAND THESE TERMS, YOU MUST CLICK THE 'DO NOT ACCEPT' BUTTON, YOU MUST NOT SIGN THE PRECEDING GOLIATH ENROLLMENT FORM, AND YOU MUST PROMPTLY RETURN THE SOFTWARE WITHOUT USING OR INSTALLING THE SOFTWARE (TOGETHER WITH ALL DOCUMENTATION) FOR A FULL REFUND. REFUNDS SHALL BE AVAILABLE TO YOU FOR A PERIOD OF SEVEN BUSINESS DAYS FROM THE DATE OF DELIVERY OF THE SOFTWARE (THE DATE THE SOFTWARE IS MADE AVAILABLE FOR DOWNLOADING OR THE DATE ANY SOFTWARE ON TANGIBLE MEDIA IS SHIPPED).

1. LICENSE. Subject to your payment of the applicable License Fees, Goliath grants to you, solely for your own internal business purposes, a non-exclusive, non-sublicensable license to use the Software, in object code form, in the territory as authorized by Goliath, subject to any product-specific use limitations as may be listed in the Goliath product price list, order form, or Documentation. If you are current in your payment of the License Fees, you may be entitled to the Limited Warranty set forth in Section 6 below. This Agreement will also govern any updates that may be provided to you that replace and/or supplement the original Software, unless such updates are accompanied by a separate agreement, in which case the terms of that agreement shall govern.

2. COPYRIGHT, TRADEMARK AND OWNERSHIP. The Software is owned by Goliath and its licensors and is protected by United States and Canadian copyright laws and international treaty provisions. You acknowledge and agree that except for your limited right to use the Software as granted in Section 1 above, Goliath and its licensors have and shall retain the entire right, title and interest in and to all intellectual property rights arising from or relating to the Software and all copies thereof, partial or complete, and whether or not merged into other materials. You shall not use the trademarks, service marks, logos, brand source distinctions and trade names of Goliath without Goliath's prior written consent.

3. COPY AND OTHER RESTRICTIONS. Except to the extent permitted by applicable law, you shall not copy the Software except to make one copy of the Software exclusively for inactive backup or archival purposes. You may copy the Documentation for your own internal business purposes. You shall not modify, reverse engineer, de-compile or disassemble the Software, or create derivative works based upon the Software, including for reasons or error correction or interoperability. During the warranty period, at your request or as may be required by applicable law, Goliath will make commercially reasonable efforts to make available to you certain interface specifications to provide interoperability with the Software. You shall not use the Software in a timesharing arrangement nor encumber, rent, lease, transmit, distribute or transfer the Software (including without limitation any licenses or rights therein) to any third party for any purpose without Goliath's prior written consent. Any use or transfer of Software is subject to your compliance with all applicable export laws and restrictions, including without limitation those laws of the United States. You shall not remove any product identification, copyright notices or other notices or proprietary restrictions from the Software. Results of benchmark or other performance tests run on the Software and the object and source code of the Software shall not be disclosed by you to any third party without Goliath's prior written consent. Any license key number or 'K Number' provided to you for the download or other access to the Software is for your use only, and may not be disclosed to any other party without Goliath's written consent. Upon reasonable notice to you, Goliath shall have the right to inspect your use of the Software and audit your relevant records to verify your compliance with the terms of this Agreement. The Software contains valuable trade secrets and proprietary know-how that belongs to Goliath and its licensors and it is made available to you in strict confidence. ANY USE OR DISCLOSURE OF THE SOFTWARE OR OF ITS ALGORITHMS, PROTOCOLS OR INTERFACES OTHER THAN IN STRICT ACCORDANCE WITH THIS AGREEMENT IS PROHIBITED AND MAY BE ACTIONABLE AS A VIOLATION OF GOLIATH'S OR ITS LICENSORS' PROPRIETARY RIGHTS.

4. U.S. GOVERNMENT RESTRICTED RIGHTS. If you are a United States Government entity, the Software covered by this Agreement is 'commercial computer software' as defined by current Federal Acquisition Regulation ('FAR'), Department of Defense Federal Acquisition Regulation Supplement ('DFAR'), or other applicable Agency regulation provisions. For 'commercial computer software,' the license grant in Section 1 shall apply. If the Software is other than 'commercial computer software,' then you shall receive no greater than Restricted Rights, as defined in the currently applicable version of the FAR, DFAR, or other applicable Agency regulation. In the event that alternative regulatory rights allocation provisions are available to the parties to this Agreement, the provision which provides you with the narrowest rights allocation permitted by law and regulation shall apply. The manufacturer of the Software (excluding Third Party Products) is Goliath Technologies 1100 East Hector Street, Suite 206, Conshohocken, PA 19428
5. TERMINATION. Goliath shall have the right to terminate this Agreement and your right to use the Software and Documentation immediately upon your breach of this Agreement. Upon termination, the license in Section 1 shall terminate and you shall cease using the Software and Documentation and shall return to Goliath all copies of the Software and Documentation, however, all other provisions shall survive and continue in effect. Termination of this Agreement shall not limit Goliath from pursuing any other remedies available to it, including, but not limited to, injunctive relief, nor shall termination relieve you of your obligations to pay Goliath all License Fees and other sums accrued prior to the effective date of termination.

6. EXPRESS LIMITED WARRANTY. Goliath warrants that the Software (excluding Third Party Products), when properly installed and used, shall substantially conform in all material respects to the published specifications set forth in the Documentation for a period of ninety (90) days from the date of delivery of the Software ('Express Limited Warranty'). Your sole remedy in the event of non-conformity of the Software shall be, at Goliath's option, repair or replacement of the defective Software or a refund of the License Fees paid for the affected Software if you inform Goliath of the non-conformity within the warranty period. Goliath shall not be responsible for any defects in the Software resulting from modifications to, improper use of, or causes external to the Software, including, but not limited to, use of the Software in conjunction with another vendor's product including, but not limited to, Third Party Products. THE EXPRESS LIMITED WARRANTY SET FORTH ABOVE CONSTITUTES THE ONLY WARRANTY PROVIDED TO YOU BY GOLIATH WITH RESPECT TO THE SOFTWARE OR ANY THIRD PARTY PRODUCTS. GOLIATH MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED (EITHER IN FACT, STATUTORY OR BY OPERATION OF LAW) WITH RESPECT TO THE SOFTWARE, INCLUDING, BUT NOT LIMITED TO, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. No Goliath agent, Supplier (as defined below) or other party is authorized to modify this Express Limited Warranty or to make any additional warranties without Goliath's prior express written consent.

7. TECHNICAL SUPPORT SERVICES. Subject to your compliance with this Agreement and the payment of applicable service fees, additional technical support and subscription update coverage may be obtained by you for the Software in accordance with Goliath's then-current technical support plans and procedures, a description of which you may access on Goliath's website at: http://www.GoliathTechnologies.com

8. LIMITATION OF LIABILITY AND EXCLUSION OF CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL GOLIATH AND ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION OR DELIVERY OF THE SOFTWARE TO YOU (COLLECTIVELY, THE 'SUPPLIERS') HAVE TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SOFTWARE, THE DOCUMENTATION, ANY SOFTWARE LICENSE OR SERVICE (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT, MISREPRESENTATION, INFRINGEMENT OR OTHER CONTRACT OR TORT CLAIMS) IN EXCESS OF THE AMOUNT OF DAMAGES ACTUALLY INCURRED BY YOU UP TO THE AMOUNT OF THE TOTAL FEES PAID BY YOU FOR LICENSES DURING THE MOST RECENT 12 MONTH PERIOD. UNDER NO CIRCUMSTANCES SHALL GOLIATH OR THE SUPPLIERS BE LIABLE TO YOU, END USERS OR ANY OTHER ENTITY OR THIRD PARTY FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, RELIANCE OR COVER DAMAGES (INCLUDING LOST PROFITS, LOST SAVINGS AND STATUTORY DAMAGES) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, EVEN IF GOLIATH OR SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The foregoing limitations allocate the risks between Goliath and you and shall apply notwithstanding any failure of essential purpose of any limited remedy.

9. INDEMNIFICATION. You shall indemnify and hold Goliath and the Suppliers harmless from and against any and all claims, losses, costs, damages and expenses (including reasonable legal expenses), resulting from or arising out of: (a) your breach of this Agreement; (b) your unauthorized use of the Software; (c) your activities after Goliath has notified you that such activities may result in the infringement of the intellectual property rights of any third party; (d) your use of the Software other than as set forth in the Documentation or other written instructions supplied by Goliath with respect to the use, operation, or combination of the Software on or with third party programs, Third Party Products, data, equipment, or documentation; or (e) any claim that the Software or the use thereof infringes upon, misappropriates or violates any patents, copyrights, trade secret rights or other proprietary rights of a third party if such claim results from or relates to: (i) a modification of the Software which modification is not authorized in writing by Goliath, (ii) in whole or in part results from or relates to the combination of the Software with software, hardware or equipment not provided by Goliath if the Software alone would not be the subject of such claim; or (iii) your use of the Software other than as set forth in the Documentation or other written instructions supplied by Goliath.

10. GOVERNING LAW; COMPLETE AGREEMENT. THIS AGREEMENT CONSTITUTES THE COMPLETE AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE SOFTWARE AND IS GOVERNED BY THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA, UNITED STATES OF AMERICA, WITHOUT GIVING EFFECT TO PRINCIPLES GOVERNING CONFLICTS OF LAW. IT SHALL NOT BE GOVERNED BY THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS OR THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT, THE APPLICATION OF WHICH IS EXPRESSLY EXCLUDED. You agree to submit to the exclusive jurisdiction of the United States District Court for the Eastern District Pennsylvania, sitting in Philadelphia, or if such Court does not take jurisdiction, to the Superior Court of The Commonwealth of Pennsylvania, sitting in Philadelphia, for any actions, suits or proceedings arising out of or relating to this Agreement, waive the right to a jury trial with respect to any action or claim arising out of or relating to this Agreement and waive any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement in such courts. The original of this Agreement has been written in English. The parties hereto waive any status, law, or regulation that might provide an alternative law or forum or to have this Agreement written in any language other than English. Except as explicitly stated in this Agreement, any fees paid for the Software and/or related services are nonrefundable. The terms of this Agreement supersede the terms of any purchase order, order letter or other document issued or signed by you to authorize your license of the Software. Any preprinted terms on or attached to any purchase order or similar document produced by you shall be null and void. Notwithstanding the foregoing, the terms of any end-user license agreement executed by both you and Goliath covering this Software shall supersede the terms of this Agreement. If any provision of this Agreement is held to be unenforceable, such provision shall be limited, modified or severed as necessary to eliminate its unenforceability, and all other provisions shall remain unaffected. You shall not assign this Agreement nor any license granted hereunder without the prior written consent of Goliath.

11. CUSTOMER DATA. The information Goliath requires from you ('Customer') under this Agreement relate to commercial company entity information and usage only, such as for order processing and the provision of technical support services. Customer shall limit the information submitted and transmitted to Goliath to commercial company information as provided herein. The parties acknowledge and agree that Goliath, its subsidiaries and affiliates may transfer, process, disclose and store Customer Data (as defined below) provided by Customer to Goliath pursuant to this Agreement wherever Goliath does business globally and in the United States, including without limitation in connection with Goliath's processing or performance of Customer's orders for Goliath's goods or services pursuant to this Agreement. Customer hereby warrants and undertakes to Goliath that it shall procure all requisite consents from and provide all requisite information to any party in respect of whom Customer Data is or may be processed, transferred or stored by Goliath and otherwise take all requisite actions to procure Customer's full compliance with all applicable data protection legislation in respect of the processing of such Customer Data. To the extent that Customer is made aware that any affected party objects to the proposed use or transfer of its Customer Data, Customer shall promptly notify Goliath and provide Goliath with such assistance as it may reasonably require to give effect to such party's request. 'Customer Data' means any personal data as defined in EU Directive 95/46/EC relating to Customer or its employees, consultants, contractors, and/or customers as obtained by Goliath in the course of or pursuant to this Agreement

12. THIRD PARTY PRODUCTS. Goliath may provide third party products to you including, but not limited to, Open Source Software (collectively, 'Third Party Products'). Notwithstanding any language to the contrary in this Agreement, all such Third Party Products are provided to you "AS IS" and without any warranty of any kind. Third Party Products provided by Goliath are specified in the Documentation and are licensed to you under the terms of the license agreements referenced in the Documentation and not under the terms of this Agreement. For purposes of this Agreement, 'Open Source Software' means any software, programming, or other intellectual property that is subject to: (i) the GNU General Public License, GNU Lesser General Public License or any similar license, including, but not limited to, those licenses listed at www.opensource.org or (ii) any agreement with terms requiring any intellectual property owned or licensed by Goliath to be: (a) disclosed or distributed in source code or object code form; (b) licensed for the purpose of making derivative works; or (c) redistributable.
GOLIATH TECHNOLOGIES