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:

1. 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;
2. User agrees to make no copy of the Software except for backup purposes;
3. User agrees not to cause or permit the disassembly, reverse compilation, or reverse engineering of the Software;
4. 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;
5. 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
6. 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.