NetScout Systems, Inc. End User License Agreement NETSCOUT SYSTEMS, INC., ON BEHALF OF ITSELF AND ITS SUBSIDIARIES AND AFFILIATES, ("NETSCOUT") WILL LICENSE PRODUCTS TO YOU ONLY IF YOU ACCEPT THIS END USER LICENSE AGREEMENT ("AGREEMENT"). CAREFULLY READ THIS AGREEMENT BEFORE USING THE PRODUCTS. By clicking the "I accept" button below or by installing or using the Software, you have indicated that you understand this Agreement and accept all of its terms. If you do not accept all the terms of this Agreement, click on the button that indicates that you do not accept the terms of this Agreement and do not install the Software. Some third party materials and software may be included in the Products and subject to other terms found in the applicable documentation, or "Read Me" or "About" files. By using the Software, you agree to comply with such terms. Definitions "APIs" mean the software application interfaces and workflow methods made generally available by NetScout in certain Products to enable integration, implementation, and interoperability with third party hardware and software. "Documentation" means any installation guides, reference guides, operation manuals and release notes provided with the Product in printed, electronic, or online form. "Enterprise" means an entity that has been assigned a Maintenance account number. In the event an entity has multiple Maintenance account numbers, each Maintenance account is a separate Enterprise and requires a separate Enterprise License. “Enterprise License” means the Software identified in the Quotation as an Enterprise License. "Hardware" means hardware products generally available on NetScout's price list. “Maintenance” means technical support services for the Products that NetScout makes available upon purchase in accordance with NetScout’s then-current support services terms. "Product" means Software and Hardware provided by NetScout or NetScout's authorized reseller or distributor. "Quotation" means the document under which NetScout or NetScout's authorized reseller or distributor offers for sale and license its Products, Maintenance, and associated services. "Software" means NetScout proprietary programs in object code and the firmware contained on the Hardware. The term Software does not include APIs. "Software Development Kit" or "SDK" means the NetScout API, together with applicable documentation, any sample code, and any sample applications provided with the API. 1. License Grant. Subject to the terms set forth in this Agreement, NetScout grants you a limited, non-exclusive, non-transferable license to use the Software and the Documentation for your own internal business purposes. Such usage is limited to the number of licenses for which you paid the applicable license fee and is subject to the limitations set forth in the Documentation. You may make a copy of the Software for archival or backup purposes only ("Copy"). The Copy may not be used to implement a fault tolerant environment, redundant environment, or contingency environment. If you are purchasing an Enterprise License, the foregoing license grant is hereby extended to allow you to install, copy, and use an Enterprise License throughout your Enterprise for your internal use only, subject to the terms and limitations set forth in this Agreement and the Documentation. Notwithstanding anything to the contrary in the foregoing, in cases of authorized resale under a Reseller Agreement, with respect to Resellers the above Enterprise License is limited to allow Reseller to sublicense the Enterprise License to one end user customer on the license terms set forth herein. 2. License Restrictions. (a) Without limiting this Agreement, NetScout retains all right, title, and interest in and to the Software, including without limitation the Enterprise License, and all corrections, modifications, enhancements, updates, upgrades, Documentation, and Copies, and all patents, copyrights, trade secrets, trademarks, and other intellectual property rights therein. NetScout retains all rights to the intellectual property associated with the Hardware except as expressly granted in this Agreement, and the above Software restrictions will apply to Hardware to the extent applicable. The Software, Documentation, and Copies are protected under copyright laws, and any permitted Copies must include all copyright, government-restricted rights, and other proprietary notices or legends included on the Software when it was shipped or first provided to you. Without limiting the generality of the foregoing, you, your employees, and your consultants will not and will not authorize or permit any third party to: i. copy or reproduce any part of the Software or Documentation except in loading the Software into a single computer, or making a Copy as permitted above; ii. transfer the Software without NetScout’s prior written authorization. Transfers will only be permitted for products with no more than minimal differences in price, features and functionality and provided that the transfer does not increase the number of licensed copies; iii. sell, market, distribute, sublicense, lease, provide timeshares, rent, or grant other rights in the Software to others or permit third parties to access the Software, without the written consent of NetScout; iv. use the Software or any portions thereof for which you have not paid the applicable fee; or v. modify, develop, port, translate, localize, reverse engineer, de-compile, disassemble, or create derivative works based on the Software, except to the extent expressly permitted by applicable law and solely to extent the parties shall not be permitted by that applicable law to exclude or limit such rights. (b) In the event you are purchasing an Enterprise License and if you use the Enterprise License Software on or with hardware that does not meet the technical specifications set forth in the Documentation, then: (i) NetScout will not warrant the performance or results obtained by using the Enterprise License Software and NetScout disclaims all liability with respect to the foregoing, (ii) you assume the risk as to the results and performance of the Enterprise License Software, and (iii) your rights and NetScout’s obligations with respect to Maintenance, warranty, and indemnification for the Software are waived. The Enterprise License is strictly limited to the NetScout Software identified in a Quotation as an Enterprise License and does not apply to any other NetScout Software. An Enterprise License may not be deployed for government entities, for which the scope of the license must be separately determined in each case. (c) For the avoidance of doubt, Resellers must purchase separate Enterprise Licenses for each end user customer. The license terms of this Agreement applicable to end user customers are hereby included as part of the obligations in the Reseller Agreement regarding flow down or pass-through terms to end user customers. Further, Reseller will not remove this Agreement from the Documentation included with the Product. For service providers and managed services providers (collectively, "Service Provider"), the Enterprise License may be used for Service Provider's internal business purposes only, including for monitoring and managing Service Provider's own networks. Separate Enterprise Licenses must be purchased for deployment and use for each end user customer of such Service Provider. 3. Evaluation Copies NetScout may distribute Product for evaluation ("Evaluation Product"). While the Evaluation Product is identical to the commercial Product, the Evaluation Product may not be used for production purposes, and, for Software, contains a license key that disables the Software after 30 days, or other term as agreed to by the parties, and which will render the Evaluation Product unusable. If, after using the Evaluation Product, you wish to continue such use, you must purchase the Product. Upon payment of the applicable fee, Product that can be used for production purposes will be provided to you, along with the Documentation. NetScout does not offer Maintenance on Evaluation Products. 4. License Term. The license is effective until terminated. You may terminate the license at any time by destroying the Software, Documentation, and Copies, and providing written certification to NetScout that all of the foregoing have been destroyed. The license will also terminate if you or your employees or consultants fail to comply with any terms of this Agreement. You agree that upon such termination you will either return the Software, Documentation, and Copies or, with NetScout's prior consent, destroy the Software, Documentation, and Copies. 5. Confidentiality. The Product contains valuable trade secrets of NetScout and constitutes confidential information of NetScout and its licensors. You agree to protect the confidentiality of the Product with the same degree of care by which you protect your own such confidential information, but no less than reasonable care. Accordingly, you will not provide access to or disclose the Product or Copy to any third party without the prior written consent of a duly authorized U.S. NetScout corporate officer. 6. Limited Warranty. NetScout warrants that the media on which the Software is recorded will be free from defects in materials and workmanship under normal use and service for a period of 90 days from the original date of shipment of the Software ("Media Warranty Period"). NetScout warrants that the Software for a period of 90 days ("Software Warranty Period") and the Hardware for a period of 12 months ("Hardware Warranty Period"), in either case from its original date of shipment or when first provided to you, will substantially conform to the Documentation. If, during (a) the Media Warranty Period, a defect in the media occurs and is reported to NetScout, the media may be returned to NetScout, and NetScout will replace the media without charge to you, or (b) the Software Warranty Period or Hardware Warranty Period, a failure of the Software or Hardware to conform as warranted occurs and is reported to NetScout, NetScout, at its option, will use commercially reasonable efforts to repair or replace the non-conforming Software or Hardware. The foregoing warranties will apply provided you give NetScout prompt written notice of the material defect or nonconformity within the warranty period specified above and return the defective media or non-conforming Software or Hardware to NetScout. 7. Warranty Limit. The warranty set forth in Section 6 does not apply to any failure of the Software or Hardware caused by (a) your failure to follow NetScout's installation, operation, or maintenance instructions, procedures, or Documentation; (b) your mishandling, misuse, negligence, or improper installation, de-installation, storage, servicing, or operation of the Product; (c) unauthorized modifications or repairs; (d) use of the Products in combination with equipment or software not supplied by NetScout or authorized in the Product Documentation; and (e) power failures or surges, fire, flood, accident, actions of third parties, or other events outside NetScout's reasonable control. NetScout cannot and does not warrant the performance or results that may be obtained by using the Products, nor does NetScout warrant that Products are appropriate for your purposes or error-free. EXCEPT AS OTHERWISE PROVIDED IN SECTION 6, THE WARRANTY SET FORTH IN SECTION 6 IS YOUR SOLE AND EXCLUSIVE REMEDY AND NETSCOUT'S ENTIRE LIABILITY FOR DEFECTIVE MEDIA OR NON-CONFORMING PRODUCTS AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. 8. Liability Limit. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT IN THE EVENT OF YOUR (a) INFRINGEMENT OF NETSCOUT'S INTELLECTUAL PROPERTY RIGHTS, OR (b) BREACH OF CONFIDENTIALITY, IN NO EVENT WILL EITHER PARTY OR ITS LICENSORS OR SUPPLIERS BE LIABLE FOR SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF USE, LOSS OF DATA, BUSINESS INTERRUPTION, OR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF. IN NO EVENT WILL THE CUMULATIVE LIABILITY OF NETSCOUT EXCEED THE AMOUNTS PAID TO NETSCOUT FOR THE APPLICABLE PRODUCT, MAINTENANCE, OR OTHER SERVICE THAT GAVE RISE TO SUCH CLAIM. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE FOREGOING, IN THE CASE OF SDKs AND EVALUATION PRODUCTS, NETSCOUT'S CUMULATIVE LIABILITY WILL NOT EXCEED ONE HUNDRED U.S. DOLLARS. THE FOREGOING LIMITS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT ARE CUMULATIVE AND ARE INTENDED AND ACKNOWLEDGED BY END USER TO BENEFIT NETSCOUT AND ITS THIRD PARTY SUPPLIERS. NETSCOUT'S LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM THE NEGLIGENCE OF NETSCOUT OR THAT OF ITS EMPLOYEES WHICH MAY NOT BY APPLICABLE LAW BE EXCLUDED IS NOT EXCLUDED BY THIS AGREEMENT BUT IS RATHER LIMITED TO THE MAXIMUM EXTENT PERMISSBLE BY APPLICABLE LAW. Some jurisdictions do not allow the exclusion or limitation of direct, incidental, or consequential damages, so the above limitations may not apply to you. 9. Audit Rights. NetScout may conduct, during normal business hours, an audit of your applicable records and computers to verify the number of copies of the Software in use and the host processors on which such copies are installed. 10. Compliance with Laws. You agree to comply, at your own expense, with all laws, regulations, rules, and ordinances of any governmental body, department, or agency that apply to or result from your obligations under this Agreement. To the extent that the Software is subject to U.S. export controls, you agree to comply fully, at your own expense, with all applicable U.S. laws and regulations governing the export, destination, ultimate end user, and other restrictions relating to the Software. 11. Survival. Sections 2 (a) and (b) and 5-16 will survive termination of this Agreement. 12. Assignment. You will not directly or indirectly sell, transfer, assign, or delegate in whole or in part this Agreement, or any rights, duties, obligations, or liabilities under this Agreement, to any third party, including to any affiliated entity, without the prior written consent of NetScout. 13. U. S. Government Restricted Rights. All NetScout Software, including the Documentation and technical data, sold or delivered pursuant to this Agreement for Government use are commercial as defined in Federal Acquisition Regulation ("FAR") 2.101 and any supplement and further is provided with RESTRICTED RIGHTS. All Software was fully developed at private expense. Use, duplication, release, modification, transfer, or disclosure (for purposes of this section, "Use") of the Software is restricted by the terms of this Agreement and further restricted in accordance with FAR 52.227-14 for civilian Government agency purposes and 252.227-7015 of the Defense Federal Acquisition Regulations Supplement ("DFARS") for military Government agency purposes, or the similar acquisition regulations of other applicable Government organizations, as applicable and amended. The Use of Software and the Product is restricted by the terms of this Agreement, in accordance with DFARS Section 227.7202 and FAR Section 12.212. All other Use is prohibited except as described herein. 14. High Risk Activities. The Product is not fault-tolerant and is not designed or intended for use in hazardous environments requiring fail-safe performance, including without limitation in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, direct life-support machines, or any other application in which the failure of the Product could lead directly to death, personal injury, or severe physical or property damage (collectively, "High Risk Activities"). NetScout expressly disclaims any express or implied warranty of fitness for High Risk Activities. 15. APIs and Software Development Kits. NetScout may make APIs generally available. You may use the SDK to design, develop, and test software programs; make a single copy of the SDK for back-up purposes only; copy the runtime components of the SDK ("Runtime Component") into software code created through your use of the SDK; and reproduce and distribute such Runtime Component solely as a component of your software code. In addition to the restrictions in Section 2, you may not use the SDK to develop a product or service that competes with products or services offered by NetScout, or incorporate the Runtime Component in a product that competes with the products offered by NetScout. NetScout's ownership rights in Section 2 apply to the SDK, including any output such as the Runtime Component, but do not include any original software code you may develop. The inclusion of the Runtime Components in your original code created through your use of the SDK in no way alters NetScout's ownership rights in the Runtime Component. NetScout may develop software programs substantially similar or identical to those developed by you through your use of the SDK and reserves the right to sell and distribute those software programs. NetScout does not offer Maintenance or any other support on the SDK and may change, suspend, or discontinue any aspect of the SDK at any time, including the availability of any SDK, and impose limits on certain features and services or restrict your access to parts or all of the SDK. NETSCOUT DOES NOT REPRESENT OR WARRANT THAT THE SDK IS FREE OF ERRORS, BUGS, OR INTERRUPTIONS OR IS RELIABLE, ACCURATE, OR COMPLETE. NETSCOUT HEREBY DISCLAIMS ALL LIABILITY FOR ANY CLAIMS, DAMAGE TO, OR OTHER IMPACT ON YOUR BUSINESS, EQUIPMENT, HARDWARE, SOFTWARE, DATA, OR OTHER INFORMATION OR MATERIALS RESULTING FROM, CAUSED BY, OR RELATED TO THE USE OF THE SDK. YOUR USE OF THE SDK IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THE USE OF ANY SDKs. THE SDK IS PROVIDED "AS IS" WITH NO WARRANTY, EXPRESS OR IMPLIED, AND NETSCOUT EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. To the maximum extent permitted by applicable law, you hereby (a) release and waive all claims against NetScout and its subsidiaries, affiliates, officers, agents, licensors, and employees (collectively "Indemnitees") from liability for claims, damages (actual and consequential), and expenses (including litigation costs and attorneys' fees) arising from or in any way related to your use of the SDK; and (b) agree to hold harmless and indemnify Indemnitees from and against any third party claims arising from or in any way related to your use of the SDK, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs, and attorneys' fees. 16. General. This Agreement and the Quotation(s) issued by NetScout constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements, arrangements, and understandings between the parties regarding such subject matter, except where the parties have a signed, written master purchase agreement or similar contract. Any conflicting or additional terms in your purchase orders or other documentation are expressly rejected. This Agreement may be modified only in writing, signed by authorized representatives of both parties. No use of trade or other regular practice or course of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. No failure of either party to exercise any power or right hereunder or to insist upon strict compliance with the terms of this Agreement, and no custom or practice of the parties at variance with the terms hereof, will constitute a waiver of either party's right to demand compliance with the terms of this Agreement. If any of the provisions of this Agreement are determined to be invalid, illegal, or unenforceable, such provisions will be severed from the Agreement, and the remainder of this Agreement will be valid and enforceable to the extent permitted by applicable law, provided that the intent of the parties is not materially impaired. The parties will use their best efforts to replace the invalid or unenforceable provision by a provision that, to the extent permitted by law, achieves the purposes intended under the invalid or unenforceable provision. This Agreement will be governed by the laws of the Commonwealth of Massachusetts without regard to choice of law rules, and you hereby submit to the jurisdiction of the federal and state courts located in said Commonwealth and the applicable service of process. The parties agree that the United Nations Convention on International Sale of Goods Acts will not apply to this Agreement. Except for the obligation to make payments, non-performance of either party will be excused to the extent that performance is rendered impossible by strike, fire, flood, acts of God, governmental acts or orders or restrictions, act of terrorism, war, or any other reason where failure to perform is beyond the reasonable control of the non-performing party and not due to its fault or negligence. NetScout Systems, Inc., 310 Littleton Road, Westford, Massachusetts 01886 Main Phone: 978-614-4000 / Main Fax: 978-614-4004 P/N 293-1070 Rev. H Copyright 2004-2008 NetScout Systems, Inc. All rights reserved. Rev.07/08 End User License Agreement
