This agreement (the "Agreement") sets forth the terms and conditions for licensing and use of SysInfo version 7 and all subsequent versions called 7.X.X software (the "Software") from MagniComp, LLC ("MagniComp") to you, and by clicking the "I accept" button or installing or using the Software indicates that you have read and understand this Agreement and accept its terms and conditions. MagniComp reserves the right to change the terms, conditions and pricing relating to the future licensure of its products, software and other intellectual property rights from time to time. This Agreement applies to both the full and evaluation versions of the Software. Do not use the Software until you have carefully read and agree to be bound by all of terms and conditions of this Agreement. Technical support services or training and implementation services for the Software may be available either directly from MagniComp or through an authorized reseller for an additional fee and pursuant to a separate services agreement. Visit the MagniComp Web site at URL www.magnicomp.com/support for details.
As used herein, "Software" is defined as the machine-readable, object code version of the MagniComp computer program with which this software license agreement is included and any product updates and product upgrades thereto, as well as any associated media and printed materials, which may include online or electronic documentation. Software may include active server pages, html/dmtl, XML, Java script files and VB Script files in both machine-readable object code and human-readable source code format. Software does not include any third party programs you license through MagniComp.
"Server" means a computer that provides services to other computers; examples include file servers, database servers, web servers and application servers.
"Node" means a computer, workstation, desktop, laptop, Server or other device connected to and accessible through a network.
"System" means the same thing as a Node.
"Network Server" means a Server that provides access to files over any kind of network connection.
"Client" means a computer used to access a Server.
"Storage System" means a Network Attached Storage (NAS) or Storage Area Network (SAN) system which provides storage access via a network to one or more Client, Server, or Node computers.
"Concurrent Use" means access, directly or indirectly, by two or more licensed users of the Software executing on a Server.
"Order" means the MagniComp quote or proposal form signed by you and MagniComp or, if you have purchased a license through an authorized reseller of the Software, the ordering document you executed between you and the reseller.
"Right-To-Use" means a license for 1 Node to use the Software or add-on feature of Software.
"CPU" means a physical Central Processing Unit (CPU) chip commonly found in computers including Node and Client computers.
Subject to the terms of this Agreement (including, without limitation, the payment of applicable license fees), you may use the Software pursuant to the terms of the particular license(s) you have acquired as defined below. Unless otherwise expressly authorized by MagniComp, MagniComp grants to you, and you accept, the non-exclusive, non-sublicenseable, non-transferable limited right to use the Software on a single Node and only in accordance with the following terms:
· Node Licenses: If you purchased a Right-To-Use license from MagniComp or through an authorized reseller, you must acquire a separate Software Right-To-Use (RTU) license for each Node on which the Software is installed locally or is executable from a Network Server. Each RTU license must be the type appropriate for each Node based on the physical number of CPUs in each Node. RTU licenses are available for 1 to 4 CPU Nodes, 5 to 8 CPU Nodes, 9 to 16 CPU Nodes, and 17 or more CPU Nodes.
· Storage System Professional: If you have purchased the "Storage System Professional" feature from MagniComp or through an authorized reseller, you are entitled to use this feature to access one Storage System for each one "Storage System Professional Right-To-Use (RTU)" which you purchased. You may use this feature on as many Node computers as you wish.
· Evaluation Licenses: If you have received an evaluation version of the Software you may only use the Software for your internal trial or demonstration purposes. You may print one copy of any online user documentation provided in connection with your evaluation copy. The evaluation Software may have limited functionality and contains a time out feature that will cause the Software to be disabled and non-functional after the end of the use period, thirty (30) days from installation, or as otherwise designated by MagniComp in its sole discretion. BY YOUR USE OF THE EVALUATION VERSION OF THE SOFTWARE YOU UNDERSTAND AND AGREE THAT OPERATION OF THE SOFTWARE WILL TERMINATE UPON EXPIRATION OF THE DESIGNATED TIME PERIOD. IF SO, YOU WILL NOT BE ABLE TO CONTINUE TO ACCESS AND/OR USE THE SOFTWARE OR ANY DATA YOU HAVE ENTERED INTO SUCH SOFTWARE UNLESS YOU OBTAIN AN UPDATED EVALUATION VERSION FROM MAGNICOMP OR PURCHASE A LICENSE FOR THE FULL VERSION OF THE SOFTWARE.
· Educational Licenses: If you are a full-time, accredited, non-profit educational institution as approved by MagniComp, you may use the Software free of charge on all your institution computers.
You may make a reasonable number of back up copies of the object code of the Software. for archival purposes only. You must reproduce all copyright and other proprietary or restricted rights notices in the original Software on all authorized copies. You may not copy any of the books or printed materials provided in connection with the Software. Except as expressly provided herein, making additional copies of the Software, or enabling others to use your registration code(s) or serial number(s), if any, is strictly prohibited. It is also prohibited to install the Software on computers used by individuals who have not purchased the appropriate licenses for the Software from MagniComp; or to duplicate the Software by any other means including electronic transmission. The Software contains MagniComp trade secrets and may contain active server pages, html/dmtl, XML, Java script files and VB Script files in human-readable source code format, both of which you may not disclose, and you agree to take reasonable steps to protect the Software from unauthorized copying, use or disclosure. You may not decompile, reverse engineer, disassemble, create derivative works based on the Software, or otherwise reduce the Software to human-perceivable form or disable any licensing, anti-piracy or other control features of the Software. Except to the extent expressly permitted herein, you may not: permit other individuals to Use the Software; permit Concurrent Use of the Software; rent, resell, distribute, sublicense (including offering to or using the Software on behalf of third parties on an applications service provider, service bureau, outsourcing, subscription, time-sharing or other similar basis), lease, grant a security interest in, or otherwise transfer or assign any rights to the Software; or remove any proprietary notices or labels on the Software. Except as expressly authorized by MagniComp, you may not combine or integrate the Software with or into any other software programs or services.
You acknowledge and agree that MagniComp owns all right, title, and interest in and to the Software and related Documentation and all copyrights, patents, trademarks, service marks, trade secrets, and other intellectual property rights relating thereto. You further acknowledge and agree that, except for the limited licenses expressly granted herein, nothing in the Agreement affects any transfer of any such rights, title or interest in or to the foregoing from MagniComp to You. You shall reimburse MagniComp for any and all expenses that MagniComp may incur (including interest, attorneys' fees and other legal expenses) in connection with MagniComp's efforts to enforce its rights against you with respect to the Software or any of MagniComp's intellectual property rights in the event MagniComp prevails in such enforcement efforts.
Your use of any third party's products, services or content accessed through the Software shall be governed by any agreement entered between you and such third party, and MagniComp shall have no liability relating thereto. Additionally, unless otherwise expressly provided, any support or services for any third party programs must be separately contracted for by you with the applicable vendor and are not covered by the Agreement. Any non-MagniComp materials ("Third-Party Content") you access via the Software (on-line or otherwise) is the property of the applicable owner and may be protected by applicable copyright law. This Agreement grants you no rights to Third-Party Content.
Unless otherwise expressly provided, you shall pay MagniComp any fees and expenses for the use of the Software in U.S. currency in the amounts specified within thirty days of the date of MagniComp's invoice. If you fail to timely pay any amount due under the Agreement, you, upon demand, shall pay, in addition, interest at the rate of 1 1/2% per month, but not to exceed the maximum allowed by law, on such delinquent amount from the due date thereof until the date of payment. In addition to any fees owed pursuant to the Agreement, you shall reimburse MagniComp for the following costs and expenses: (i) shipping and transportation charges for all shipments of software, documentation and supplies; and (ii) all taxes and duties of any kind (including but not limited to sales, use and withholding taxes), if any, associated with the Agreement or your receipt or use of the Software, except for taxes based on MagniComp's net income. In the event that MagniComp is required to collect or pay any tax for which you are responsible, you will pay such tax directly to MagniComp. If you pay any withholding taxes that are required to be paid under applicable law, you will furnish MagniComp with written documentation of all such tax payments, including receipts. You shall reimburse MagniComp for any and all expenses that MagniComp may incur (including interest, attorneys' fees and any expenses) in connection with MagniComp's efforts to collect any amounts due MagniComp hereunder.
EXCEPT AS PROVIDED ABOVE, THIS SOFTWARE AND ANY RELATED SERVICES OR CONTENT ACCESSIBLE THROUGH THE SOFTWARE ARE PROVIDED "AS-IS," AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MAGNICOMP DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, REGARDING THIS SOFTWARE, THE PHYSICAL MEDIA ON WHICH IT RESIDES, THE RELATED MATERIALS AND ANY SUCH SERVICES OR CONTENT, INCLUDING THEIR FITNESS FOR A PARTICULAR PURPOSE, THEIR QUALITY, THEIR SECURITY, THEIR MERCHANTABILITY, OR THEIR NONINFRINGEMENT. MAGNICOMP DOES NOT WARRANT THAT THE SOFTWARE OR ANY RELATED SERVICES OR CONTENT IS FREE FROM BUGS, VIRUSES, ERRORS, OR OTHER PROGRAM LIMITATIONS NOR DOES MAGNICOMP WARRANT ACCESS TO THE INTERNET OR TO ANY OTHER SERVICE OR CONTENT THROUGH THE SOFTWARE OR CONTINUED ACCESS TO THE EVALUATION VERSION OF THE SOFTWARE OR TO THE DATA ENTERED INTO THE EVALUATION VERSION OF THE SOFTWARE AFTER THE EXPIRATION OF THE TIME OUT FEATURE. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. IN THAT EVENT, TO THE EXTENT YOUR JURISDICTION PERMITS SUCH LIMITATIONS, ANY IMPLIED REPRESENTATIONS, WARRANTIES, AND/OR TERMS OR CONDITIONS ARE LIMITED IN DURATION TO SIXTY (60) DAYS FROM THE DATE YOU PURCHASED THE SOFTWARE OR TO THE SHORTEST PERIOD PERMITTED BY APPLICABLE LAW, IF LONGER.THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS AS WELL, WHICH VARY FROM STATE TO STATE.
THE ENTIRE LIABILITY OF MAGNICOMP AND ITS REPRESENTATIVES (AS DEFINED BELOW) FOR ANY REASON SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE SOFTWARE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MAGNICOMP AND ITS SUBSIDIARIES, AFFILIATES, LICENSORS, PARTICIPATING FINANCIAL INSTITUTIONS, THIRD-PARTY CONTENT OR SERVICE PROVIDERS, DISTRIBUTORS, DEALERS OR SUPPLIERS ("REPRESENTATIVES") ARE NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO: DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS OR INVESTMENT, LOSS OF DATA, OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF MAGNICOMP OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME STATES MAY NOT ALLOW THE LIMITATION AND/OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN MAGNICOMP AND YOU. MAGNICOMP WOULD NOT BE ABLE TO HAVE PROVIDED THIS SOFTWARE OR SERVICES WITHOUT SUCH LIMITATIONS. YOU AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR BACKING UP YOUR DATA AND FILES, AND YOU HEREBY RELEASE MAGNICOMP FROM ANY LIABILITY OR DAMAGES ARISING OUT OF, OR RELATED TO, THE LOSS OF ANY SUCH DATA OR FILES. MAGNICOMP HAS NO LIABILITY FOR THE PERFORMANCE OF THIRD PARTIES INCLUDING ITS INDEPENDENT AGENTS, DISTRIBTORS, RESELLERS AND SERVICE PROVIDERS THAT PROVIDE SALES, TECHNICAL SUPPORT AND OTHER SERVICES RELATING TO THE SOFTWARE.
VIRUSES
MagniComp warrants that, to the best of its knowledge, the Software when physically delivered under this Agreement does not contain programming code or instruction(s) constructed with the ability to damage, interfere with, or otherwise adversely affect computer programs, data files, or hardware (collectively “Viruses”). MagniComp also warrants that it has exercised its best efforts to assure that Viruses have not been introduced into the Software while the Software was in its possession. Further, MagniComp warrants that the Software, other than the evaluation version, shall not contain any disabling code that will activate on a predetermined date or that can be remotely activated by MagniComp without Licensee’s prior written consent. In the event that it is determined that such a Virus or disabling code exists, MagniComp shall, at Licensee’s option, immediately replace any portion(s) of the Software that cannot be corrected or cured within a reasonable period of time or shall immediately reestablish the affected portion(s) of the Software to be functionally equivalent to their performance prior to the introduction of the Virus or disabling code.
MAGNICOMP INDEMNIFICATION
Licensee shall indemnify, defend, and hold MagniComp harmless from and against any and all demands, claims, or suits by any third party and any and all costs, damages, penalties, and expenses, including reasonable attorney fees, arising out of or in connection with the use of the Software by Licensee, its employees, agents, or invitees, except to the extent any such demand, claim, or suit arises out of or in connection with MagniComp’s breach of its obligations hereunder.
You acknowledge and agree that the Software is subject to restrictions and controls imposed by the U.S. Export Administration Act of 1979, as amended, and the Export Administration Regulations there under and the U.S. Foreign Corrupt Trade Practices Act (the "Acts"). You agree and certify that neither the Software nor any direct product thereof are being or will be used for any purpose prohibited by the Acts. You further agree and certify that neither the Software nor any direct product thereof will be exported to (i) countries which are currently subject to U.S. trade embargoes, (ii) persons or entities on the U.S. "Denied Persons List", "Specially Designated Nationals List" and "Entities List," or, (iii) otherwise in breach of United States laws and regulations related to exports and to all administrative acts of the US Government pursuant to such laws and regulations. By downloading or installing or using the Software, you agree to the foregoing and represent and warrant that you are not located in, under the control of, or a national or resident of any country or on a list in breach of this Section. In addition, you are responsible for complying with any local laws in your jurisdiction which may impact your right to import, export or use the Software, and you represent that you have complied with any regulations or registration procedures required by applicable law to make this license enforceable.
The Software is a "commercial item," as that term is defined at 48 C.F.R. 2.101 (OCT 1995), consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (SEPT 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995), all U.S. Government End Users acquire the Software with only those rights set forth herein.
Your license under this Agreement is effective until terminated. You may terminate this license at any time such as by destroying the Software and all copies thereof. MagniComp may terminate this license and Agreement immediately and without notice to you if you breach any of the provisions of this Agreement. In addition to the foregoing, if you have received an evaluation version of the Software, you agree that MagniComp may modify the license terms or terminate the license at any time for any reason at its sole discretion. Upon any such termination, you must pay MagniComp for all unpaid fees and expenses, discontinue all use of the Software, and immediately destroy the Software together with all copies, and uninstall the Software from any computers on which you have installed the Software. The provisions of this Agreement (other than your license to use the Software) shall survive the termination of the license, or any termination or expiration of this Agreement.
This Agreement constitutes the entire agreement between you and MagniComp with reference to this transaction and your licensing of the Software, and there are no other prior or contemporaneous understandings, promises, representations, or descriptions relating to the subject matter hereof. The terms of the Agreement shall only be modified in a writing signed by an authorized officer or employee of each party. Except as otherwise expressly agreed to by MagniComp, any additional or different terms in your communications, such as in preprinted terms and conditions on purchase orders, are hereby deemed to be material alterations and notice of objection and rejection of them is hereby given. This Agreement does not limit any rights that MagniComp may have under trade secret, copyright, patent, trademark or other laws.
This Agreement shall be interpreted in accordance with the laws of the State of California (without reference to choice of law principles and any legal proceeding arising hereunder will occur in Santa Clara, California. In the event of any dispute involving this Agreement, the parties consent to the exclusive jurisdiction and venue in either the state or federal courts in the State of California, and each party hereby waives its right to a jury trial in any litigation. Regardless of where you purchased your license, the application to this Agreement of the United Nations Convention on Contracts for the International Sale of Goods is hereby expressly excluded.
If any provision of this Agreement is invalid or unenforceable under applicable law, then it is, to that extent, deemed omitted and the remaining provisions will continue in full force and effect. No decision, action or inaction by MagniComp shall be construed to be a waiver of any rights or remedies available to it. The Agreement (and each warranty contained herein) is made and entered into for the sole protection and benefit of the parties hereto, and no other person or entity shall be a direct or indirect beneficiary of, or shall have any direct or indirect cause of action or claim in connection with the Agreement. This Agreement is deemed to have been entered into in the State of California, and shall be construed as to its fair meaning and not strictly for or against either party.
You may not assign, sublicense, delegate or transfer all or any portion of its rights or responsibilities under this Agreement, by operation of law or otherwise, without MagniComp's prior written consent. Any attempts to do so shall be void and constitute a material breach of the Agreement. MagniComp may freely assign, sublicense, delegate or transfer all or any portion of its rights or responsibilities under the Agreement by operation of law or otherwise. Any assignment of this Agreement by MagniComp in connection with a sale of its business shall relieve MagniComp from any further liability hereunder. All the terms and provisions of the Agreement shall be binding upon and inure to the benefit of the parties, their successors and permitted assigns.
Any notice to be given hereunder will be in writing and given by facsimile, postpaid registered or certified mail return receipt requested, or electronic mail. The date of receipt shall be deemed the date on which such notice is given. Notice to you will be directed to the contact information set forth in the Order. Notice to MagniComp will be directed to MagniComp LLC, 5818 Vitero Way, San Jose, CA 95138, Attn: Legal, Phone: (408) 270-0606, Fax: (408) 516-9923.
Last Updated: 6/20/2006