NetResults Tracker Standard Edition (NRT-SE) Software License Agreement

Product

NetResults Tracker Standard Edition (NRT-SE)

Software License Agreement

THIS LICENSE AGREEMENT STATES THE TERMS AND CONDITIONS UPON WHICH NETRESULTS CORPORATION (“NETRESULTS”) OFFERS TO LICENSE THE NetResults Tracker Standard Edition (NRT-SE) SOFTWARE AND ITS USER DOCUMENTATION (COLLECTIVELY, THE “SOFTWARE”).

The Software is licensed, not sold, to you for use only under the terms of this License Agreement and NetResults and its licensors reserve all rights not expressly granted to you.

The type of license being offered to you depends on whether or not NetResults has sent you an encrypted code that NetResults identifies as a “Registered License Key”. If so, the license you can obtain by accepting this license agreement is a Registered License. If not, the license you can obtain by accepting this license agreement is an Evaluation License.

1. LICENSE:

(a) Whether you are being offered an Evaluation License or a Registered License, if you accept:

You may install and use the Software on a single computer for your internal use only.
You may make one copy of the Software in machine readable or printed form for backup purposes, which copy automatically becomes the property of NetResults, and is subject to this License Agreement.
All rights and licenses granted to you will be nonexclusive.

(b) If you are being offered and accept an Evaluation License, you also will have the following additional rights and be subject to the following additional restrictions:

You may provide web browser access to the Software over a network to no more than fifteen (15) persons altogether.
You may provide web browser or other access to the Software only to your employees and consultants, provided that no one may be provided access to a copy of the Software or the server upon which the Software runs without agreeing in writing to comply with the terms of this License Agreement.
You may not allow access to the Software to any person or entity who is your actual or potential customer or an actual or potential competitor of NetResults.
Unless you ask for and receive an extension in writing from NetResults, all of your rights to use and provide access to the Software will expire fifteen (15) days after you first receive the Software.

(c) If you are being offered and accept a Registered License:

In using the Software you will need to create user accounts and specify one person as the user for each user account that you create (a “Designated User”). You will have the right to provide web browser access to the Software only to Designated Users. (If you change the Designated User for a user account, then you will have the right to provide web browser access to the newly specified user, but not to the person previously specified as the user.)
The maximum number of user accounts you may set up and the maximum number of Designated Users to which you may provide web browser access to the Software at any one time (“Concurrent Designated Users”) is based on the order or orders which you placed that resulted in NetResults sending you one or more Registered License Key(s).
The information sent with each Registered License Key includes a user account type (“static” or “floating”), a maximum number of Concurrent Designated Users of such type, and the date on which the Registered License Key was generated. Only one Registered License Key for each user account type is valid. If NetResults sends more than one Registered License Key for the same user account type (for instance, if you place a subsequent order to add more users or if a mistake was made in the order processing), then only the most recently generated Registered License Key is valid.
If the user account type of a valid Registered License Key sent to you by NetResults is “static”, then the maximum number of static Designated Users authorized by your Registered License is equal to the maximum number of Concurrent Designated Users specified with the Registered License Key, you may set up one static user account for each such authorized Designated User, and the maximum number of Concurrent Designated Users associated with static user accounts is that specified with the Registered License Key. If you do not have a valid Registered License Key sent to you by NetResults which specifies a user account type of “static”, then you may not set up or provide web browser access to any static user accounts.
If the user account type of a valid Registered License Key sent to you by NetResults is “floating”, then the maximum number of floating Designated Users authorized by your Registered License is equal to ten (10) times the maximum number of Concurrent Designated Users specified with the Registered License Key, you may set up one floating user account for each such authorized Designated User, and the maximum number of Concurrent Designated Users associated with floating user accounts is that specified with the Registered License Key. If you do not have a valid Registered License Key sent to you by NetResults which specifies a user account type of “floating”, then you may not set up or provide web browser access to any floating user accounts.
For example, if NetResults sent you a static Registered License Key for three (3) Concurrent Designated Users and a floating Registered License Key for five (5) Concurrent Designated Users, then you could set up no more than three (3) static user accounts and fifty (50) floating user accounts, and at any one time you would have the right to provide web browser access to the Software to all three (3) static user accounts and to not more than five (5) floating user accounts.
You may specify your employees, consultants, customers and prospective customers as Designated Users, provided that no one may be provided access to a copy of the Software or the server upon which the Software runs without agreeing in writing to comply with the terms of this License Agreement.

2. RESTRICTIONS:

You acknowledge that the Software is the proprietary product of NetResults or its licensors and is protected by copyright and other intellectual property laws. You acquire only the limited right to use the Software described in this License Agreement and do not acquire any other rights, express or implied, in the Software. NetResults, or its licensors, shall at all times retain all rights, title and interest, including intellectual property rights, in the Software and media. Unauthorized copying or the removal of any product identification, copyright notice, or other notice from the Software is expressly prohibited. You may be held legally responsible for any copyright infringement or other violation of proprietary rights which is caused or encouraged by your failure to abide by the terms of this License Agreement. You do not have the right to modify or alter in any manner the Software. You may not market, distribute, sell, transfer, sublicense, assign or otherwise convey the Software or copies of the Software to others. You may not transfer or assign any license key received from NetResults, or disclose any information pertaining to such license key, to others. You may not cause or permit decompilation, reverse engineering or disassembly or otherwise reduce the Software to a human perceivable form. Regardless of its origin, you may not disseminate performance information or analysis, including, without limitation, benchmarks, relating to the Software. You have no right to receive or view source code of the Software. You may not use the Software for renting, leasing, loaning, commercial timesharing or service bureau use.

3. AUDIT:

NetResults may, at any time during the term of this License Agreement and with reasonable prior written notice, request and gain access to your premises and computer systems for the limited purpose of conducting an audit to determine and verify that you are in compliance with these terms and conditions. You will promptly grant such access and reasonably cooperate with NetResults in the audit. The audit will be restricted in scope, manner and duration to that reasonably necessary to achieve its purpose and not unreasonably disrupt your operations. If the audit reveals that you have exceeded any limit on user accounts or concurrent use established by this License Agreement or your order(s), you will be liable for promptly paying the license fees required to increase the number of static Concurrent Designated Users and floating Concurrent Designated Users authorized by your Registered License so that all such excess user accounts and concurrent use would in the future be permitted. The license fees to be paid to authorize additional static Concurrent Designated Users and floating Concurrent Designated Users will be as set forth at URL: https://www.netresultstracker.com/purchase/orders/packaged/order_licenses.aspx at the time of such audit. In addition, if the audit reveals that you are violating the terms of this License Agreement, then you will be liable for the costs of the audit. An audit shall be conducted no more frequently than annually unless any audit shows that you are in material non-compliance with the terms and conditions hereof, in which case audits may be conducted quarterly until you have been determined to be in compliance for four consecutive quarters.

4. LIMITED WARRANTY:

If you are being offered and accept an Evaluation License, YOU ACKNOWLEDGE THAT THE SOFTWARE IS PROVIDED WITHOUT CHARGE SOLELY FOR EVALUATION PURPOSES, AND IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. YOU ACKNOWLEDGE THAT THE SOFTWARE IS PROVIDED TO YOU WITHOUT CHARGE AND THAT THE LIMITATIONS HEREIN ARE REASONABLE AND APPROPRIATE IN LIGHT OF SUCH FACT.
If you are being offered and accept a Registered License, NetResults warrants that for a period of 30 days from the date hereof, the Software will substantially perform the functions described in its user documentation when properly installed and operated on NetResults-supported computer configurations. If you have a claim within the scope of the limited warranty set forth in this Section 4(b) and you provide NetResults written notice within a reasonable time that describes the claim with sufficient detail, NetResults will investigate such claim within a reasonable time. If NetResults’ investigation confirms the existence of an error, NetResults will use reasonable efforts to take one of the following actions, at NetResults’ option: (i) correct the error, (ii) replace the Software media, (iii) make an update generally commercially available, or (iv) work out a reasonable alternative. A reasonable alternative includes, but is not limited to, a temporary method of circumventing the error. THESE ARE YOUR SOLE AND EXCLUSIVE REMEDIES FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN THIS SECTION 4(b). The limited warranty set forth in this Section 4(b) shall not apply and is void if: (i) the failure of the Software to perform the functions described in its user documentation has resulted from accident, abuse or misuse, including, without limitation, use in a manner other than as set forth in its user documentation; (ii) you are using a superseded or altered release of the Software; or (iii) the Software has been used in combination with or operated with third party products or data not approved by NetResults for use with the Software.
OTHER THAN THE REGISTERED LICENSE EXPRESS WARRANTY SET FORTH IN SECTION 4(b) ABOVE, THE SOFTWARE IS PROVIDED WITH ALL FAULTS, AND YOU BEAR THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT. NETRESULTS AND ITS LICENSORS DISCLAIM ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THERE IS NO WARRANTY AGAINST INFRINGEMENT OF THIRD PARTY RIGHTS. NETRESULTS DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY NETRESULTS OR ITS DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. THESE DISCLAIMERS OF WARRANTY ARE FULLY APPLICABLE EVEN IF NETRESULTS MAY HAVE BEEN ADVISED OR MAY OTHERWISE BE AWARE OF ANY NORMAL, ORDINARY OR PARTICULAR USES TO WHICH THE SOFTWARE IS TO BE SUBJECTED.

5. LIMITATION OF LIABILITY:

IN NO EVENT WILL NETRESULTS OR ITS LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES UNDER THIS LICENSE AGREEMENT, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR DATA USE OR OTHER PECUNIARY LOSS ARISING OUT OF THE USE OR INABILITY TO USE SOFTWARE, EVEN IF NETRESULTS, ITS LICENSORS, OR AN AUTHORIZED NETRESULTS REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. NETRESULTS WILL HAVE NO LIABILITY FOR DAMAGES IN CONNECTION WITH AN EVALUATION LICENSE AND NETRESULTS’ LIABILITY FOR DAMAGES FOR A REGISTERED LICENSE SHALL IN NO EVENT EXCEED THE FEES PAID BY YOU FOR THE REGISTERED LICENSE.

6. PAYMENT:

The license fee payable for a Registered License will be determined as follows. If you submitted your order online, the license fee will be the amount displayed on the online order form (URL: https://www.netresultstracker.com/purchase/orders/packaged/order_licenses.aspx). If you submitted your order to NetResults by telephone, the license fee will be the amount quoted to you during that call. If you submitted your order to NetResults by any other means (for example, by completing a form and providing that form to NetResults by fax or otherwise), the license fee will be determined in accordance with the pricing information set forth at URL: http://www.netresultstracker.com/purchase/orders/packaged/order_licenses.aspx at the time NetResults receives your order unless you are timely accepting a written quotation from NetResults, in which case the quotation will establish the license fee. In all events, the license fee is due with your order or in accordance with any terms shown on a written quotation timely accepted by you or an invoice sent to you by NetResults. NetResults may assess late charges for late payments equal to the lesser of: (i) one percent (1%) per month or (ii) the maximum amount permitted by applicable law. All license fees are non-refundable. You will be responsible for all taxes, duties and other governmental fees except taxes based on the net income of NetResults.

7. EXPORT CONTROL:

You acknowledge that the laws and regulations of the United States restrict the export and re-export of the Software. You agree that you will not export or re-export the Software or media in any form without first obtaining the appropriate United States and foreign government approval.

8. U.S. GOVERNMENT END USERS:

The Software is a “commercial item,” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 and is provided to the U.S. Government only as a commercial end item. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202, all U.S. Government end users’ rights with respect to the Software are limited to those rights set forth herein.

9. TERMINATION:

This License Agreement is effective until terminated in accordance with this Section 9. The License Agreement, and all rights granted hereunder, will terminate automatically (i) if you fail to cure any material breach of this License Agreement within ten (10) days after such breach first occurs (or immediately in the case of a breach of Section 2); (ii) fifteen (15) days after receipt of the Software (or any later time specified in an extension from NetResults) if you have an Evaluation License; (iii) upon the institution by or against you of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of your debts; (iv) upon any assignment for the benefit of your creditors; or (v) upon your dissolution. Upon termination you shall immediately cease all use of the Software and return or destroy all copies of the Software and so certify to NetResults. Except for the rights granted to you in Section 1 hereof and except as otherwise expressly provided herein, the terms of the License Agreement shall survive termination. Termination is not an exclusive remedy, and all other remedies will be available whether or not this License Agreement is terminated.

10. GENERAL:

This License Agreement shall be governed and interpreted in accordance with the laws of the State of California without regard to conflicts of laws provisions thereof. If any provision of this License Agreement shall be held to be unenforceable, such provision shall be enforced to the maximum extent possible under governing law and the remaining provisions shall remain in full force and effect. You may not sublicense, assign or transfer this License Agreement or any rights or obligations hereunder, and any attempt to do so is void. A sale or other disposition of all or substantially all of your assets, or a merger, consolidation, reorganization or similar transaction that results in your equity owners immediately prior to such transaction holding less than fifty percent (50%) of the ownership interests of the surviving or successor entity, shall be deemed an assignment. This License Agreement contains the final, complete and exclusive agreement between the parties with respect to the subject matter hereof and supersedes all prior orders, agreements or understandings (oral or written); provided, however, that if you are being offered and accept a Registered License, then the agreement between the parties also includes the following additional terms but no others: (i) the maximum numbers of authorized static Concurrent Designated Users and authorized floating Concurrent Designated Users established by your order(s) and (ii) the license fee established as provided in Section 6 above. Failure or delay in enforcing any right or provision of this License Agreement shall not be deemed a waiver of such provision or right with respect to any subsequent breach or a continuance of any existing breach. IN ANY LEGAL ACTION RELATING TO THIS LICENSE AGREEMENT, EACH PARTY AGREES (A) TO THE EXERCISE OF JURISDICTION OVER IT BY A STATE OR FEDERAL COURT IN SANTA CLARA OR SAN MATEO COUNTY, CALIFORNIA AND (B) THAT IF SUCH PARTY INSTITUTES AN ACTION, IT SHALL BE INSTITUTED IN ONE OF THE COUNTIES SPECIFIED IN SUBSECTION (A) ABOVE.