dynaTrace AJAX Edition
End-User License Agreement (EULA)
IMPORTANT
- READ THIS CAREFULLY:
BY DOWNLOADING, INSTALLING
OR USING THE SOFTWARE YOU INDICATE ACCEPTANCE OF AND AGREE TO THE TERMS
AND CONDITIONS OF END-USER LICENSE AGREEMENT (EULA) FOR DYNATRACE
AJAX EDITION. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS,
DO NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE.
The purpose of this End-User
License Agreement (“Agreement”) is to set forth the terms
and conditions under which dynaTrace software Inc. ("dynaTrace"),
at its sole discretion will provide to you ("User")
a copy of dynaTrace's product known as dynaTrace
AJAX Edition ("Software"). The terms, conditions
and covenants pertaining to the use of Software are as follows:
1. Grant of License.
dynaTrace grants to User, during
the term of this Agreement as specified in Section 2 below, the nontransferable,
nonexclusive right to use the Software. This right is subject to the
following additional specific agreements and covenants by User concerning
the use of the Software:
- User agrees that
the Software is for its own internal use only and that it shall not
sell or transfer any copies of the Software, shall not relicense, rent
or lease the Software, use the Software for third party training, use
the software for providing paid for service engagements, commercial
time-sharing or service bureau use, or otherwise make the Software available
to third parties;
- User agrees to make
no copy of the Software except for backup purposes;
- User agrees not
to cause or permit the disassembly, reverse compilation, or reverse
engineering of the Software;
- User agrees to not
integrate or embed the Software, in whole or in part, in any other software
without dynaTrace' prior written consent in writing;
- User hereby acknowledges
dynaTrace' copyright in the Software regardless of whether the copyright
notice appears on the Software or whether it has been filed with any
relevant copyright office, and User does not acquire any rights in the
Software, express or implied, other than those specified in this Agreement;
and
- User agrees and
confirms that it understands that, if and when the Software is made
commercially available by dynaTrace, the features, performance and configuration
of the Software shall be determined by dynaTrace at its sole discretion.
2. Term and Termination.
(a) User's right to use the
Software will terminate on termination of this Agreement by dynaTrace.
dynaTrace shall have the right, at its sole discretion, to terminate
this Agreement with or without cause upon written notice to User.
(b) Nothing in this Agreement
shall be deemed to require dynaTrace to make the Software commercially
available on any particular date nor does dynaTrace make any such representation
or warranty, express or implied, regarding any such commercially available
version. Nothing in this Agreement shall be deemed to convey to User
the rights to use a commercially released version of the Software or
any components thereof, if and when such are available. Use of such
commercial product shall be subject to a separate agreement between
dynaTrace and User.
(c) Upon termination of this
Agreement as provided above, User shall cease using and shall return
the Software, including all copies, or shall certify in writing that
the Software and all copies have been destroyed within ten (10) calendar
days of termination of the right to use the Software hereunder. dynaTrace’
warranty disclaimers set forth in Section "DISCLAIMERS" hereafter
and User’s non-disclosure obligations set forth in Section "Confidentiality"
below shall survive the termination of this Agreement.
3. DISCLAIMERS.
USER UNDERSTANDS THAT THE SOFTWARE
IS EXPERIMENTAL AND 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” FOR EVALUATION AND TESTING PURPOSES ONLY, AND OWING TO ITS EXPERIMENTAL
NATURE, USER IS ADVISED NOT TO RELY ON THE FEATURES OR PERFORMANCE OF
THE SOFTWARE FOR ANY REASON. USER AGREES 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.
USER FURTHER AGREES THAT DYNATRACE SHALL NOT BE HELD LIABLE FOR ANY
DAMAGES, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL,
SPECIAL OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOSS OF PROFITS, REVENUE,
DATA OR USE, INCURRED BY USER OR ANY THIRD PARTY, WHETHER IN AN ACTION
IN CONTRACT OR TORT, EVEN IF DYNATRACE HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. IN NO EVENT SHALL DYNATRACE’S LIABILITY FOR DAMAGES
HEREUNDER EXCEED THE AMOUNTS RECEIVED BY DYNATRACE AS A RESULT OF THIS
TRANSACTION OR USD 1'000 (ONE THOUSAND US DOLLARS), WHICHEVER IS THE
LOWER. THESE WARRANTY DISCLAIMERS SHALL SURVIVE THE TERMINATION OF THIS
AGREEMENT.
4. Support and Updates.
(a) dynaTrace shall have no
obligation to support or provide support services to User relating to
the Software. dynaTrace may, however, make such services available to
User at its sole discretion.
(b) 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
User which will be identified by a change in the Software version number,
but is under no obligation to do so. The provision by dynaTrace to User
of such updates, enhancements and/or modifications to the Software shall
be subject to all covenants and conditions of this Agreement, including,
but not limited to, the restrictions on User's use of the Software and
dynaTrace's disclaimer of warranties.
5. Miscellaneous.
(a) Governing Law. The
laws of the Commonwealth of Massachusettsshall govern this Agreement.
However, dynaTrace shall have the right to seek relief in any court
of competent jurisdiction in order to protect its proprietary rights
in the Software.
(b) Export Administration.
User agrees to comply fully with all relevant export laws and regulations
of the United States (“Export Laws”) to assure that neither the
Software or any direct product thereof are (1) exported, directly or
indirectly, in violation of Export Laws; or (2) are intended to be used
for any purpose prohibited by the Export Laws, including, without limitation,
nuclear, chemical or biological weapons proliferation.
(c) Entire Agreement.
This Agreement constitutes the complete agreement between the parties
and supersedes all prior or contemporaneous agreements or representations,
written or oral, concerning the subject matter of this Agreement. This
Agreement shall also supersede all terms of any unsigned or “shrink
wrap” license included in any package, media or electronic version
of Software provided under this Agreement.