IXCHARIOT "ENDPOINT" SOFTWARE END USER LICENSE AGREEMENT
This KEYSIGHT SOFTWARE END USER LICENSE AGREEMENT (this "Agreement") is a legal agreement between you and Keysight regarding the IxChariot "Endpoint" software that accompanies this Agreement (the "SOFTWARE", as further defined below). By clicking the "I Accept" or similar box or button, installing the SOFTWARE, having the SOFTWARE installed, or activating the SOFTWARE with any associated license key, as applicable, you are binding yourself and, if applicable, the business entity that you represent (you and, if applicable, such entity, "Licensee") to the terms and conditions of this Agreement. If Licensee does not agree to be bound by the terms of this Agreement, Licensee may not use, install, or activate the SOFTWARE in any way and must delete all copies of the SOFTWARE from its computer systems.
1. GRANT OF LICENSE
(a) License Grant.
Subject to the terms, conditions and restrictions in this Agreement, Keysight grants to Licensee a limited, revocable, non-exclusive, non-transferable, and non-sublicenseable license to (i) use an unlimited number of copies of the SOFTWARE, in object code form only, for its internal purposes as an end user, but only in connection with Licensee's permitted use of IxChariot "Console" software, and (ii) use the provided documentation, whether printed, online, or electronic (the "Documentation"), in support of Licensee's permitted use of the SOFTWARE. Keysight reserves all rights not expressly granted herein, and Licensee will acquire no such rights, whether by estoppel, operation of law, or otherwise.
If Keysight provides Licensee with any revised, modified, or replacement SOFTWARE, or additional or supplemental SOFTWARE, or any updates, releases, error corrections, or bug fixes related to the SOFTWARE, the same shall become part of the "SOFTWARE" licensed hereunder when delivered to Licensee and shall be subject to all of the terms and conditions contained herein. With respect to any technical information Licensee provides to Keysight or its licensees in connection with the license granted to Licensee hereunder, Keysight and its licensees may use such information for any purpose without restriction, including, without limitation, for product support and development.
2. TITLE; NO SALE
Licensee acknowledges and agrees that Keysight and/or its affiliates, licensors, and/or suppliers (as applicable) own all rights, title, and interest in and to the SOFTWARE and the Documentation (including, without limitation, any copies, extracts, or associated media thereof, and any images, applets, photographs, animations, video, audio, and/or text incorporated into the SOFTWARE), as well as all patents, trademarks, trade names, inventions, copyrights, know-how, and trade secrets, and any related applications or extensions, relating to the design, manufacture, operation, or service of the SOFTWARE, and/or relating to the Documentation.
Without limitation of Keysight's other rights, Licensee acknowledges and agrees that the SOFTWARE and the Documentation are protected by United States copyright laws and international treaty provisions.
(c) Licensed Not Sold.
Licensee acknowledges and agrees that the SOFTWARE and the Documentation have been licensed to Licensee pursuant to the terms and conditions of this Agreement and that neither the SOFTWARE nor the Documentation have been sold to Licensee.
3. RESTRICTIONS AND LIMITATIONS
(a) General Restrictions.
Licensee shall not use, copy, merge, or transfer copies of the SOFTWARE or the Documentation except as may be expressly and specifically authorized in this Agreement. To the maximum extent permitted under applicable law, Licensee may not, under any circumstances, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of the SOFTWARE. Licensee may not, and agrees that it will not, transfer, assign, rent, lease, lend, resell, or in any way distribute or transfer any rights in this Agreement, the SOFTWARE, or the Documentation to third parties, including (without limitation) by operation of law, without Keysight's prior written approval and subject to written agreement by the recipient to the terms of this Agreement.
(b) Export Restrictions; Compliance with Laws.
Licensee agrees that Licensee will not, directly or indirectly, export or transmit the SOFTWARE or the Documentation to any country to which such export or transmission is restricted by any applicable law, regulation, or statute, without the prior written consent, if required, of the Bureau of Export Administration of the U.S. Department of Commerce or such other governmental entity as may have jurisdiction over such export or transmission. Licensee agrees to comply with and conform to all applicable laws, regulations, ordinances, and executive orders relating to Licensee's use of the SOFTWARE and the Documentation.
4. USE AUDIT
Keysight shall have the right, upon reasonable notice, to conduct or direct (or both) an independent accounting firm to conduct, during normal business hours on Licensee's premises under Licensee's supervision, an audit to verify Licensee's compliance with the terms and conditions of this Agreement.
5. TERM AND TERMINATION
This Agreement and the license(s) granted herein will remain effective until terminated. Licensee may terminate this Agreement and the license(s) granted herein by ceasing use of the SOFTWARE and the Documentation. The license(s) granted to Licensee under this Agreement will also automatically terminate if Licensee fails to comply with any term or condition of this Agreement.
(b) Licensee Obligations Upon Termination or Expiration.
Licensee agrees, upon any termination or expiration of this Agreement, to cease use of and to destroy or return to Keysight, all copies of the SOFTWARE and the Documentation. Sections 2(a), 2(b), 3, 4, 5, 6(b), 6(c), 7, 8, 9, 10, and 11 of this Agreement shall survive any expiration or termination of this Agreement and continue in full force and effect.
6. LIMITED WARRANTY; DISCLAIMER; LIMITATION OF LIABILITY
(a) Limited Warranty.
If Licensee licenses IxChariot "Console" software from Keysight and that software is covered by Keysight's limited warranty, then the SOFTWARE and the Documentation shall also be covered by that limited warranty (as if the SOFTWARE and the Documentation constitute such IxChariot "Console" software and its related documentation), but only until such time as that limited warranty is no longer effective with respect to such IxChariot "Console" software.
(b) DISCLAIMER OF WARRANTIES.
EXCEPT AS EXPRESSLY PROVIDED IN SECTION 6(a) ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE AND THE DOCUMENTATION ARE PROVIDED "AS IS", AND KEYSIGHT AND ITS SUPPLIERS, LICENSORS, AND DISTRIBUTORS DO NOT MAKE AND SPECIFICALLY DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES OF EVERY KIND RELATING TO THE SOFTWARE, THE DOCUMENTATION, AND/OR USE OF THE SOFTWARE OR THE DOCUMENTATION (INCLUDING, WITHOUT LIMITATION, ACTUAL AND IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT), AS WELL AS ANY WARRANTIES THAT THE SOFTWARE (OR ANY ELEMENTS THEREOF) WILL ACHIEVE A PARTICULAR RESULT, OR WILL BE UNINTERRUPTED OR ERROR-FREE.
(c) LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL KEYSIGHT, ITS SUPPLIERS, LICENSORS, OR DISTRIBUTORS BE LIABLE UNDER ANY THEORY OF LIABILITY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING FROM LOSS OF PROFITS, REVENUE, DATA, OR USE, OR FROM INTERRUPTED COMMUNICATIONS OR DAMAGED DATA, OR FROM ANY DEFECT OR ERROR, OR IN CONNECTION WITH LICENSEE'S ACQUISITION OF SUBSTITUTE GOODS OR SERVICES OR MALFUNCTION OF THE SOFTWARE, OR ANY SUCH DAMAGES ARISING FROM BREACH OF CONTRACT OR WARRANTY OR FROM NEGLIGENCE OR STRICT LIABILITY) IN CONNECTION WITH THIS AGREEMENT, THE SOFTWARE, THE DOCUMENTATION, AND/OR ANY USE OF THE SOFTWARE OR THE DOCUMENTATION, EVEN IF KEYSIGHT OR ANY OTHER PERSON HAS BEEN ADVISED OR SHOULD KNOW OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, KEYSIGHT'S MAXIMUM AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT, THE SOFTWARE, THE DOCUMENTATION, AND/OR USE OF THE SOFTWARE OR THE DOCUMENTATION SHALL NOT EXCEED THE TOTAL AMOUNT OF ANY LICENSE FEES AND/OR MAINTENANCE FEES PAID BY LICENSEE FOR THE IXCHARIOT "CONSOLE" SOFTWARE USED IN CONNECTION WITH THE SOFTWARE.
(d) ADDITIONAL STATEMENTS.
ADDITIONAL STATEMENTS BY AGENTS, LICENSEES, EMPLOYEES, RESELLERS, OR DISTRIBUTORS OF KEYSIGHT DO NOT CONSTITUTE WARRANTIES BY KEYSIGHT, DO NOT BIND KEYSIGHT, AND MAY NOT BE RELIED UPON.
(e) Responsibilities of Licensee.
As a licensee of the SOFTWARE, Licensee is solely responsible for the proper installation and operation of the SOFTWARE in accordance with the instructions and specifications set forth in the Documentation. Keysight and its distributors shall have no responsibility or liability to Licensee for improper installation or operation of the SOFTWARE.
(f) FAILURE OF ESSENTIAL PURPOSE.
THE TERMS OF THIS SECTION 6 WILL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE.
(g) STATE LAW RIGHTS.
LICENSEE MAY HAVE OTHER RIGHTS WHICH MAY VARY FROM STATE TO STATE OR IN OTHER JURISDICTIONS. BECAUSE SOME STATES OR JURISDICTIONS MAY NOT ALLOW LIMITATIONS ON THE DURATION OF IMPLIED WARRANTIES, OR LIMITATIONS ON OR EXCLUSIONS OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO LICENSEE DEPENDING ON ITS STATE OF RESIDENCE. LICENSEE SHOULD SEEK INDEPENDENT LEGAL ADVICE REGARDING SUCH RIGHTS.
Licensee hereby agrees to indemnify and hold harmless Keysight and its distributors from and against any and all claims, losses, or damages (including but not limited to reasonable attorneys' and experts' fees) attributable to (a) Licensee's use or misuse of the SOFTWARE or the Documentation, or (b) any failure by Licensee to comply with any term, condition, or restriction in this Agreement.
Licensee shall take all reasonable steps necessary to ensure that the SOFTWARE and the Documentation, or any portion thereof, is not made available or disclosed by Licensee (or by any of its employees, representatives, or agents) to any person other than as may be necessary to Licensee's employees, representatives, and agents to use the same as expressly permitted herein. Licensee agrees that all of its employees, representatives, and agents having access to the SOFTWARE or the Documentation shall observe and perform the terms of this Section.
9. U.S. GOVERNMENT RESTRICTED RIGHTS
(a) Commercial Software.
The SOFTWARE and its accompanying Documentation are deemed to be "commercial computer software" and "commercial computer software documentation", respectively, for purposes of Federal Acquisition Regulations ("FAR") 12.212 and the Defense FAR Supplement ("DFARS") 227.7202-1, 227.7202-3, and 227.7202-4, and the restrictions set forth in such regulations, and this Agreement shall be deemed to be the license described in such regulations. Any use, modification, reproduction, release, performance, display, or disclosure of the SOFTWARE or its accompanying Documentation by any agency, department, or entity of the United States Government (the "Government") shall be governed solely by the terms of this Agreement and is prohibited except to the extent expressly permitted by the terms of this Agreement. The SOFTWARE and its accompanying Documentation are also deemed to be "restricted computer software" for purposes of FAR 52.227-14(g)(3) (Alternate III (June 1987)) and FAR 52.227-19, which clauses are incorporated herein by reference subject to the express restrictions and prohibitions set forth above.
(b) Certain Technical Data.
Any technical data provided that is not covered by the above provisions is deemed to be "technical information related to commercial computer software or commercial computer software documentation" for purposes of FAR 12.212 and the restrictions set forth therein, and is deemed to be "technical data or information related or pertaining to commercial items or processes" developed at private expense for purposes of DFARS 227.7102- 1 and 227.7102-2 and the restrictions set forth therein, and this Agreement shall be deemed to be the license described in such regulations. Any use, modification, reproduction, release, performance, display, or disclosure of such technical data by the Government shall be governed solely by the terms of this Agreement and is prohibited except to the extent expressly permitted by the terms of this Agreement. Such technical data is also deemed to be "limited rights data" as defined in FAR 52.227-14(a) (Alternate I (June 1987)) and for purposes of FAR 52.227-14(g)(2) (Alternate II (June 1987)), which clauses are incorporated herein by reference subject to the express restrictions and prohibitions set forth above. Such technical data shall also be deemed to be "technical data" for purposes of DFARS 252.227-7015, which clause is incorporated herein by reference subject to the express restrictions and prohibitions set forth above.
(c) Third-Party Acceptance of Restrictions.
Licensee shall not provide the SOFTWARE, it's accompanying Documentation, or the technical data to any party, including the Government, unless such third party accepts the same restrictions as are set forth in this Section 9. Licensee is responsible for ensuring that the proper notice is given to all such third parties and that the SOFTWARE, its accompanying Documentation, and the technical data are properly marked with the required legends. Nothing in this Section 9(c) shall be deemed to modify the restrictions on transfer set forth elsewhere in this Agreement.
10. GOVERNING LAW
This Agreement and the rights and obligations of the parties hereunder shall be governed by the laws of the State of California, without reference to conflicts of laws principles provided, however, that if the Software was acquired outside the United States, then certain local laws may apply. In addition, this Agreement will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act (UCITA), even if that law has been adopted in California, and the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded.
This Agreement sets forth the entire agreement between Keysight and Licensee with respect to the SOFTWARE, the Documentation, and Licensee's use of the Software and the Documentation, and supersedes any prior or contemporaneous agreement regarding the subject matter hereof. No provision of this Agreement may be waived, modified, or superseded except by a written instrument signed by each of Keysight and Licensee. Any suppliers, licensors, and distributors of Keysight shall be direct and intended third-party beneficiaries of this Agreement, including without limitation the disclaimers of warranties and limitations on liability set forth herein. No failure or delay in exercising any right or remedy shall operate as a waiver of any such (or any other) right or remedy. The language of this Agreement shall be construed as a whole, according to its fair meaning and intent, and not strictly for or against either party, regardless of who drafted or was principally responsible for drafting this Agreement or any specific term or conditions hereof. This Agreement shall bind and inure to the benefit of the parties and their successors and permitted assigns. Both parties are acting as independent contractors with respect to the activities hereunder. In the event of any legal proceeding between the parties arising out of or related to this Agreement, the prevailing party shall be entitled to recover, in addition to any other relief awarded or granted, its costs and expenses (including reasonable attorneys' and expert witness' fees) incurred in any such proceeding. If any provision in this Agreement is invalid or unenforceable, such provision shall be construed, limited, or altered, as necessary, to eliminate the invalidity or unenforceability and all other provisions of this Agreement shall remain in effect.