Version 1.0.
The accompanying executable code version of the Zenoss Core™
monitoring platform is made available to you pursuant to version 2 of
the GNU General Public License (the “GPL”). Without limiting your
rights under the GPL, the Zenoss Core™ monitoring platform and related
documentation (collectively, the “Product”) are subject to the terms
and conditions of this Zenoss Core™ End User License Agreement (the
“Agreement”) and our Privacy Policy.
BY CLICKING THE "ACCEPT" BUTTON, OR BY INSTALLING OR USING THE
ZENOSS CORE™ MONITORING PLATFORM, YOU CONSENT TO BE BOUND BY THE
AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS
AGREEMENT, DO NOT CHECK THE “ACCEPT" BOX, AND DO NOT INSTALL OR USE ANY
PART OF THE ZENOSS CORE MONITORING PLATFORM.
During the Product installation process, and at later times, you
may be given the option of installing additional components from
third-party software providers. The installation and use of those
third-party components may be governed by additional license
agreements.
1. Scope of Agreement; GPL License. This Agreement governs the
Product and any software upgrades provided by Zenoss, Inc. (“Zenoss”)
that replace and/or supplement the original Product, unless those
upgrades are accompanied by a separate license, in which case the terms
of that license will govern. The accompanying executable code version
of the Zenoss Core™ monitoring platform is made available to you
pursuant to the GPL, and nothing in this Agreement will be construed to
limit any rights granted under the GPL.
2. Reservation of Trademark and Other Rights. Subject to the
foregoing, Zenoss, for itself and on behalf of its licensors, hereby
reserves all trademark and all other intellectual property rights in
the Product. For example, Zenoss™ and the Zenoss™ logo are trademarks
of Zenoss in the United States and other countries, and this Agreement
does not grant any right to use any of those marks or any of the other
trademarks, service marks or logos of Zenoss or its licensors. The GPL
is a copyright license which permits you to copy, modify and distribute
code which makes up the Zenoss Core™ monitoring platform, but does not
include an implied or express trademark license. You may not remove or
alter any copyright or other proprietary notice in or on the Product.
3. Termination. If you breach this Agreement your right to use the
Product will terminate immediately and without notice, but all
provisions of this Agreement except the License Grant (Section 1) will
survive termination and continue in effect. Upon termination, you must
destroy all copies of the Product.
4. Disclaimer of Warranty. TO THE FULLEST EXTENT PERMITTED BY LAW,
THE PRODUCT IS PROVIDED ON AN "AS IS" BASIS, WITH ALL FAULTS. YOUR USE
OF THE PRODUCT IS AT YOUR OWN RISK. ZENOSS DISCLAIMS ALL WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING (WITHOUT LIMITATION) WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT,
SYSTEM INTEGRATION, NON-INTERFERENCE AND ACCURACY OF INFORMATIONAL
CONTENT. ZENOSS DISCLAIMS LIABILITY FOR ANY DIRECT, INDIRECT,
INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER
DAMAGES, OR LOST PROFITS, THAT MAY RESULT, DIRECTLY OR INDIRECTLY, FROM
YOUR USE OF THE PRODUCT, INCLUDING (WITHOUT LIMITATION) ANY DAMAGE TO
COMPUTER SYSTEMS, HARDWARE OR SOFTWARE, LOSS OF DATA, OR ANY OTHER
PERFORMANCE FAILURES, OR ANY ERRORS, BUGS, VIRUSES OR OTHER DEFECTS
THAT RESULT FROM OR ARE ASSOCIATED WITH USE OF THE PRODUCT. YOU BEAR
THE ENTIRE RISK AS TO SELECTING THE PRODUCT FOR YOUR PURPOSES AND AS TO
THE QUALITY AND PERFORMANCE OF THE PRODUCT. THIS LIMITATION WILL APPLY
NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. SOME
JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED
WARRANTIES, SO THIS DISCLAIMER MAY NOT APPLY TO YOU.
5. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW,
IN NO EVENT WILL ZENOSS, ITS CONTRACTORS OR ITS LICENSORS BE LIABLE TO
YOU OR ANY OTHER PARTY FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL
OR EXEMPLARY DAMAGES, REGARDLESS OF THE BASIS OR NATURE OF THE CLAIM
(CONTRACT, TORT OR OTHERWISE), ARISING OUT OF OR IN ANY WAY RELATING TO
THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE PRODUCT, INCLUDING
(WITHOUT LIMITATION) ANY LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF
DATA, COMPUTER FAILURE OR MALFUNCTION, OR OTHERWISE, EVEN IF ZENOSS,
ITS CONTRACTORS OR ITS LICENSORS WERE EXPRESSLY ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS MAY NOT ALLOW THE
EXCLUSION OR LIMITATION OF LIABILITY FOR CERTAIN INCIDENTAL OR
CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY
TO YOU.
6. Export Control. This license is subject to all applicable export
restrictions. You must comply with all export and import laws and
restrictions and regulations of any United States or foreign agency or
authority relating to the Product and its use. Without limiting the
generality of the foregoing, you agree that the Product is not being
and will not be acquired for, shipped, transferred, or re-exported,
directly or indirectly, to proscribed or embargoed countries or their
nationals, nor will it be used for nuclear activities, chemical or
biological weapons, or missile projects unless authorized by the U.S.
government. Proscribed countries are set forth in U.S. Export
Administration Regulations. You certify that you are not on the U.S.
Department of Commerce 's Denied Persons List.
7. U.S. Government End Users. The Product is a "commercial item,"
as that term is defined in 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 (Sept. 1995) and 48 C.F.R.
227.7202 (June 1995). Consistent with 48 C.F.R. 12.212, 48 C.F.R.
27.405(b)(2) (June 1998) and 48 C.F.R. 227.7202, all U.S. Government
End Users acquire the Product with only those rights as set forth
herein.
8. Miscellaneous.
(a) This Agreement shall be deemed to have been consented to in,
and shall be governed by the laws of, the State of Maryland, U.S.A.,
excluding its conflict of law provisions. This Agreement shall not be
governed by the United Nations Convention on Contracts for the
International Sale of Goods or any adopted version of the Uniform
Computer Information Transactions Act.
(b) In the event that either party initiates an action in
connection with this Agreement or any other dispute between the parties
(a “Dispute”), the exclusive jurisdiction of such Dispute shall be in a
state court located in Anne Arundel County, Maryland, U.S.A or a
federal court located in Maryland, U.S.A.
(c) Notwithstanding Section 8(b), if you are located in a country
that does not have a bilateral or multilateral ruling enforcement
treaty with the U.S.A., the Dispute shall be exclusively and finally
resolved by arbitration conducted in Annapolis, Maryland, U.S.A., in
the English language by a sole arbitrator ("Arbitrator") in accordance
with the International Arbitration Rules of the American Arbitration
Association ("AAA"). The Arbitrator shall be appointed by agreement of
the parties; if the parties fail to agree upon the Arbitrator within
fourteen (14) days of notice of arbitration provided by either party,
the AAA shall appoint the Arbitrator. The Arbitrator, and every person
named on all lists of potential arbitrators, shall be a neutral and
impartial lawyer with excellent academic and professional credentials
(i) who has practiced law for at least ten (10) years, with experience
in the field of software development and intellectual property law, and
(ii) who has had experience, and is generally available to serve, as an
arbitrator. The Arbitrator shall be bound by the provisions of this
Agreement and base the award on applicable law and judicial precedent.
Upon rendering a decision, the Arbitrator shall state in writing the
basis for the decision, including the findings of fact and conclusions
of law upon which the decision is based. The Arbitrator shall not grant
any remedy or relief that a court could not grant under applicable law.
The Arbitrator's decision shall be final and binding upon the parties,
and shall not be subject to appeal. Judgment on the award or any other
final or interim decision rendered by the Arbitrator may be entered,
registered or filed for enforcement in any court having jurisdiction
thereof. The arbitrator shall have the right to issue equitable relief,
including (without limitation) preliminary injunctive relief.
(d) Notwithstanding anything to the contrary in this Section 8, e
ither party may enforce any judgment rendered in accordance with
Section 8(b) or (c) in any court of competent jurisdiction, and Zenoss
may seek injunctive or other equitable relief in any jurisdiction in
order to protect its intellectual property rights.
(e) If any part of this Agreement is held invalid or unenforceable,
that part shall be deemed to be restated so as to be enforceable to the
maximum extent permissible under law, and the remaining portions will
remain in full force and effect.
(f) A waiver by either party of any term or condition of this
Agreement or any breach thereof, in any one instance, will not waive
such term or condition or any subsequent breach thereof.
(g) Except as required by law, the controlling language of this
Agreement is English, and any Dispute brought under this Agreement
shall be conducted in the English language. In addition, if you are
located in Quebec, Canada, the following clause applies: The parties
hereby confirm that they have requested that this Agreement be drafted
in English. Les parties contractantes confirment qu’elles ont exige
quele present contrat et tous les documents associes soient rediges en
anglais.
(h) You may assign your rights under this Agreement to any party
that consents to, and agrees to be bound by, its terms; Zenoss Inc. may
assign its rights under this Agreement without condition.
(i) Zenoss and you enter into this Agreement as, and shall remain,
independent contractors with respect to one another. Nothing in this
Agreement shall create a partnership, joint venture, agency, or
employment relationship between the parties. This Agreement will be
binding upon and will inure to the benefit of the parties, their
successors and permitted assigns.
(j) This Agreement constitutes the entire agreement between Zenoss
and you concerning the subject matter hereof; it may be modified only
by a written amendment signed by an authorized executive of Zenoss. To
the extent of any conflict or inconsistency between this Agreement and
any invoice, purchase order or other document submitted by you to
Zenoss, this Agreement will control. Zenoss’ acceptance of any document
shall not be construed as an acceptance of any provision which is in
any way in conflict or inconsistent with, or in addition to, this
Agreement, unless such provision is separately and specifically
accepted in writing by an authorized officer of Zenoss.
9. Print a Copy of this Agreement. Zenoss advises you to print a copy of this Agreement on the date that you consent to the Agreement.
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