Terms and Conditions of Use
IMPORTANT - PLEASE READ THESE TERMS AND CONDITIONS
CAREFULLY WHEN YOU (HEREAFTER, "YOU" OR "YOUR") ARE ORDERING OR ACCESSING THE
LISTED SERVICES AND/OR SOFTWARE FROM DYNATRACE SOFTWARE, INC. (“DYNATRACE”).
These terms and conditions ("Terms") govern the use and licensing by DYNATRACE
of the following DYNATRACE related software: DYNATRACE AJAX EDITION (the
"Software"). BY COMPLETING THE ELECTRONIC ACCEPTANCE PROCESS, CLICKING THE
"SUBMIT" OR "ACCEPT" BUTTONS, SIGNING, USING ANY OF THE PRODUCTS OR OTHERWISE
INDICATING YOUR ACCEPTANCE OF THESE TERMS, YOU REPRESENT AND WARRANT THAT YOU:
(I) ARE AUTHORIZED TO SIGN FOR AND BIND YOURSELF AND ANY OTHER PARTY ON WHOSE
BEHALF YOU USE THE SERVICE AND/OR SOFTWARE (THE "CONTRACTING PARTY") AND (II)
AGREE FOR YOURSELF AND THE CONTRACTING PARTY TO BE BOUND BY ALL OF THESE TERMS
(INCLUDING THE DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY SECTIONS SET
FORTH BELOW) TO THE EXCLUSION OF ANY OTHER RIGHTS AND OBLIGATIONS, SUCH AS ANY
RIGHTS, OBLIGATIONS OR OTHER TERMS LISTED ON A PURCHASER ORDER OR THE LIKE YOU
OR THE CONTRACTING PARTY MAY PROVIDE LMI AND YOU AGREE THAT ANY SUCH RIGHTS,
OBLIGATIONS OR OTHER TERMS LISTED ON SUCH PURCHASE ORDER OR THE LIKE ARE HEREBY
NULL AND VOID. DYNATRACE reserves the right, exercised in its sole discretion,
to change, modify, add, or delete portions of these Terms at any time in
accordance with the procedures set forth below in the section labeled
"Modifications".
Grant of License. Subject to the following terms and conditions, dynaTrace grants to you a
non-exclusive license to use the Software in a non-production environment, i.e.
for software development and software testing purposes only.
You may make a copy of the Software, but only for backup, archival, or disaster
recovery purposes. On any copy you
make of the Software, you must reproduce and include all dynaTrace copyright or
other proprietary rights. The Software is intended and offered only for lawful
use by individuals or organizations with the legal capacity and authority under
applicable law to enter into a contract for such products.
Ownership.
dynaTrace retains all title, ownership and intellectual property rights to the
Software, including, but not limited to, any copies (including partial copies),
translations, compilations, derivative works, updates and upgrades thereto. The
Software is dynaTrace’s confidential proprietary information and contains
valuable trade secrets of dynaTrace and its licensors. You agree not to disclose
it or make it available to anyone without dynaTrace written authorization. You
will exercise no less than reasonable care to protect the Software from
unauthorized disclosure.
Restrictions. You may not use the Software for any
unlawful purpose. Without limiting the generality of the foregoing:
(a) The Software may not be used in
violation of U.S. export control laws or the export or import regulations of
other countries. You agree to comply strictly with all such laws and regulations
and acknowledge that you have the responsibility to obtain licenses to export,
re-export, or import as may be required. You assume sole responsibility for all
related costs and for the violation of any applicable export law or regulation.
(b) You may not use the Software if you are a citizen, national, or resident of,
or are under control of, the government of Cuba, Iran, Sudan, Libya, North
Korea, Syria, or any other country to which the United States has prohibited
export. You will not download or otherwise export or re-export the Software,
directly or indirectly, to the above-mentioned countries nor to citizens,
nationals or residents of those countries, or in violation of other export
regulations.
(c) You agree to indemnify, defend, and hold harmless dynaTrace, its officers,
directors, employees and its suppliers from any and all loss, cost, liability,
and expense arising from or related to your violation of these terms. You agree to reimburse dynaTrace for
any costs or fees related to its enforcement of this Agreement, including
without limitation the expert fees and attorney fees regularly charged by the
experts and legal counsel chosen by dynaTrace.
You agree not to (and agree not to allow third parties to) (1) sublicense,
lease, rent, loan, transfer, or distribute the Software or any derivative
thereof to any third party, (2) modify, adapt, translate, or prepare derivative
works from the Software, (3) decompile, reverse engineer, disassemble or
otherwise attempt to derive source code from the Software, (4) decrypt data or
extract portions of the Software's files for use in other applications, or (5)
remove, obscure, or alter dynaTrace’s or any third party's trademarks or
copyright or other proprietary rights notices affixed to or contained within or
accessed in conjunction with or through the Software.
Termination. This Agreement is effective upon your
download of the Software, and remains effective until terminated. This license will terminate
immediately without notice from dynaTrace or judicial resolution if you fail to
comply with any provision of this Agreement.
Upon such termination you must destroy the Software, all accompanying
written materials and all copies thereof, and the sections entitled Limited
Warranty, Limitation of Remedies and Damages, and General will survive any
termination.
No Warranty. YOU UNDERSTAND THAT DYNATRACE DOES
NOT WARRANT THE SOFTWARE IN ANY WAY, INCLUDING BUT NOT LIMITED TO PERFORMANCE OR
FEATURES OF THE SOFTWARE. ALL WARRANTIES REGARDING THE SOFTWARE,
INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF FITNESS FOR A PARTICULAR
PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, OR ANY OTHER WARRANTY, WHETHER
EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED BY DYNATRACE.
THE SOFTWARE IS PROVIDED “AS IS”. YOU AGREE TO USE THE SOFTWARE WITH ALL DUE
CAUTION, AND TO TAKE EVERY PRECAUTION TO ENSURE THE INTEGRITY OF DATA, HARDWARE,
AND SOFTWARE IN THE SOFTWARE'S OPERATING ENVIRONMENT.
Limitation of Remedies and Damages.
Regardless of whether any remedy set forth herein fails of its essential
purpose, IN NO EVENT SHALL DYNATRACE OR ANY OF ITS AFFILIATES, OR THEIR
LICENSORS, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE TO YOU FOR ANY
DIRECT, CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR SIMILAR
DAMAGES WHATSOEVER (including, without limitation, damages for loss of business
profits, business interruption, loss of business information and the like),
whether foreseeable or unforeseeable, arising out of the use or inability to use
the Software or accompanying written materials, regardless of the basis of the
claim and even if dynaTrace has been advised of the possibility of such damage.
dynaTrace’s total liability to you, for any cause whatsoever, regardless of the
basis of the form of action, will be limited to $500.00.
U.S. Government Users. If you are a
U.S. Government user, then the Software is provided with "RESTRICTED RIGHTS" as
set forth in subparagraphs (c)(1) and (2) of the Commercial Computer
Software-Restricted Rights clause at FAR 52 227-19 or subparagraph (c)(1)(ii) of
the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013,
as applicable.
No Support.
dynaTrace may from time to time make available updates, enhancements
and/or modifications to the Software and may, at its sole discretion, provide
such updates to you, which will be identified by a change in the Software
version number; however, dynaTrace is under no obligation to do so. The
provision by dynaTrace to you of such updates, enhancements and/or modifications
to the Software shall be subject to all covenants and conditions of this
Agreement. dynaTrace has no obligation to support or provide support services to
you relating to the Software. dynaTrace may, however, make such services
available to you in dynaTrace’s sole discretion.
General.
This Agreement shall be governed by the laws of the Commonwealth of
Massachusetts, exclusive of its conflicts of laws provisions and without regard
to the United Nations Convention on Contracts for the International Sale of
Goods, and any suit under this Agreement shall exclusively be brought in a
federal or state court in Massachusetts.
Any action against dynaTrace under this Agreement must be commenced
within one year after such cause of action accrues.
The delay or failure of either party to exercise any right provided in the
Agreement shall not be deemed a waiver.
All notices must be in writing and shall be delivered by hand (effective
when received) or mailed by registered or certified mail (effective on the third
day following the date of mailing).
If for any reason a court of competent jurisdiction finds any provision or
portion of this Agreement to be unenforceable, the remainder of this Agreement
will continue in full force and effect.
This Agreement constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes and replaces all prior or
contemporaneous understandings or agreements, written or oral, regarding such
subject matter. Any amendment to any provision of this Agreement will be
effective only if in writing and signed by both parties.
You may not assign or transfer any of your rights or obligations under this
Agreement to a third party without the prior written consent of dynaTrace.
dynaTrace may freely assign this Agreement. Any attempted assignment or transfer
in violation of the foregoing will be void from the beginning.