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End User License Agreement
LoadGen B.V. (“LGN”) is willing to license certain software on condition that you (the “End User”) accept all of the terms and conditions of this End-User License Agreement (the “Agreement”). If the End User is an employee or agent of a company and is entering into this Agreement to obtain the software for use by the company for its own business purposes, the End User hereby agrees that the End User enters into this Agreement on behalf of the company and that the End User has the authority to bind the company to the terms and conditions of this Agreement.
The End User may download from LGN’s website certain evaluation versions of the Software (defined below) without any financial consideration to LGN (“Trial Software”). The End User shall have a license to use such Trial Software for evaluation purposes only. The Trial Software shall be provided to the End User “as is” and the End User’s use shall be entirely at its own risk. The trial period shall be 21 days following the registration of the Trial Software. After this period, the Trial Software shall automatically be disabled.
Notwithstanding Section 4 (“License as upgrade of previously licensed product”), Section 7 (“Term and termination”) and Section 11 (“Indemnification”), the terms and conditions of this Agreement shall govern the End User’s use of the Trial Software.
After the trial period, the End User must purchase a new version of the Software, which may be downloaded from LGN’s website. The End User is not permitted to use the Trial Software for more than one period of 21 days.
The Agreement is subject to the general terms of LGN, which you may inspect on the website of LGN (www.loadgen.com). The general terms shall be sent to you upon your request.
1. LICENSE AND RESTRICTIONS
Subject to the terms and conditions of this Agreement, LGN hereby grants to the End User a non-exclusive, non-transferable license, without the right to sublicense, to install, use, perform and display the LGN microcomputer software products in the server and client configurations as specified (collectively, the “Software”), including the standard form of end-user manuals and documentation (“Documentation”), solely in object code format for the End User’s internal business purposes.
(b) Installation and use
Server Software. “Server Software” shall mean software designed to be run on a server that may be connected at any point in time to a number of computers operating remotely (“LoadBots”) and on one (1) site. The End User may install and use one (1) copy of the Server Software. The Server Software may only be used to support the number of virtual user logins the End User has obtained from LGN, as enforced by login limitations incorporated into the Software. Virtual user logins are available for license from LGN, including additional user license packs that increase the number of authorized logins. Any attempt to override or circumvent these software-enforced login limitations shall constitute a breach of this Agreement.
End-User Software. For LoadBot Software designed to be run on a workstation or server (the “End-User Software”), the End User may install the End-User Software on an unlimited number of computers, provided that the End User has virtual user logins for all such computers. All computers used in connection with the End-User Software must be owned or leased by the End User.
(c) Restrictions. Except as expressly provided in this Agreement, the End User may not:
use, copy, display, perform, modify or create derivative works of the Software or the Documentation in whole or in part, or merge the Software with other software;
translate, reverse-engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Software, except in the event such restrictions are prohibited by law;
rent, lease, loan, sublicense, distribute or otherwise transfer the Software or the Documentation to any third party;
remove any proprietary or intellectual property notices, labels, or marks on the Software or the Documentation.
The End User shall keep a written record of the location of the Software. The End User shall be responsible for obtaining all third-party licenses for non-LGN hardware and software products necessary for the operation of the Software.
The End User shall be responsible for all license fees associated with the Software payable to LGN or LGN’s distributors or resellers. Nothing contained in any purchase order, order acknowledgment form, order confirmation form, task order, invoice, delivery order, or similar documents submitted by the End User to LGN or LGN’s distributors shall in any way modify or add to the terms and conditions contained in this Agreement.
On LGN’s written request, not more frequently than once annually (unless LGN has reasonable grounds to believe that the End User is not acting in compliance with this Agreement), the End User shall furnish LGN with a signed certification verifying that the Software is being used in accordance with the provisions of this Agreement, and, at LGN’s expense, LGN may conduct an audit of the End User’s use of the Software. Any such audit shall be conducted during regular business hours at the End User’s facilities and shall not unreasonably interfere with the End User’s business activities. If an audit reveals that the End User has underpaid fees for any LGN products (or services), in addition to other remedies provided for herein, the End User shall be invoiced for such underpaid fees. If the underpaid fees exceed five percent (5%) of the license fees paid, then the End User shall also pay LGN reasonable costs for the conducting of the audit and shall owe interest on the deficiency at an annual rate equal to the lesser of:
twenty percent (20%) or
the maximum interest rate permitted under applicable law.
4. LICENSE AS UPGRADE OF PREVIOUSLY LICENSED PRODUCT
If you purchased this software product as an upgrade at the applicable upgrade price, then you must have previously purchased a prior version of this software product at the applicable product (not upgrade) price. If you have not purchased a prior version at the applicable product price, then please contact the vendor from whom you purchased the upgrade, or, if you are unable to contact your vendor, contact LGN, to make payment for the difference between the upgrade price and the product price within thirty (30) days of the date you purchased the upgrade. If you do not make the appropriate payment to your vendor or LGN within thirty (30) days, this EULA shall automatically terminate and you must comply with the termination provisions below.
LGN and its respective licensors shall retain all right, title, and interest to or residing in all Software subject to this Agreement, including without limitation all existing and future worldwide patents, patent applications, trademarks, trade names, service marks, inventions, copyrights, know-how, trade secrets and other proprietary rights. The Software shall be licensed, not sold, to the End User, and LGN shall reserve all rights not expressly granted to the End User.
6. SUPPORT, TRAINING AND CONSULTING SERVICES
The End User acknowledges that nothing under this Agreement obligates LGN to perform, provide or render any services of any kind, including, but not limited to, support, training, or consulting services.
7. TERM AND TERMINATION
The Agreement shall become effective when the End User agrees to the terms and conditions of this Agreement by opening, installing, using, accessing or manipulating the Software, and this Agreement shall terminate immediately upon notice to the End User if the End User materially breaches any term or condition of this Agreement. The End User agrees upon termination to promptly return to LGN or destroy, at the End User’s expense and at LGN’s option, all Software and Documentation and any copies thereof and to deliver to LGN a certification signed by a corporate officer to the effect that the End User has ceased use of the Software and returned or destroyed, as requested, all of the Software and Documentation and copies thereof. The provisions of Section 3 (“Audit”), Section 5 (“Ownership”), Section 10 (“Limitation of liability”) and Section 14 (“General”) shall survive the expiration or termination of this Agreement.
The Software shall be provided “as is” and LGN and its licensors disclaim any and all warranties or conditions of any kind, whether express, implied, statutory or otherwise, including any implied warranties of merchantability, title, fitness for a particular purpose, and non-infringement, for any Software provided under this Agreement. LGN does not warrant that the Software shall be uninterrupted, error-free, virus-free or secure. No oral or written information or advice given by LGN, its employees, distributors, dealers, or agents shall increase the scope of the above warranties or create any new warranties.
9. HIGH-RISK ACTIVITIES
The End User acknowledges and agrees that the Software is not intended for use with any high-risk or strict-liability activity, including, without limitation, air or space travel, technical building or structural design, power plant design or operation, life support or emergency medical operations or uses, and that LGN makes no warranty and shall have no liability arising from any use of the Software in any high-risk or strict-liability activities.
10. LIMITATION OF LIABILITY
In no event shall LGN, its licensors, employees, or agents be liable for any consequential, indirect, exemplary, special or incidental damages, including any lost data and lost profits, arising from or relating to this Agreement, irrespective of whether LGN has been advised of the possibility of such damage. The total cumulative liability of LGN, its licensors, employees and agents in connection with this Agreement and the Software, whether in contract or tort or otherwise, shall not exceed the total amount received by LGN from the End User for this Agreement. These limitations shall apply notwithstanding any failure of essential purpose of any limited remedy provided herein.
(a) By LGN. LGN shall defend at its own expense, or at LGN’s option, to settle any claim, suit or proceeding brought by a third party against the End User to the extent the action is based on a claim that the Software wilfully infringes upon any patent or copyright or violates the trade secret rights of such third party (“Infringement Claims”). The foregoing obligations are conditioned on the End User providing written notice to LGN as soon as required for LGN to take action considered appropriate, but at a minimum within seven (7) days of notification or discovery of an Infringement Claim, the End User giving LGN sole control over the defense or settlement of any Infringement Claim, and the End User cooperating and, at LGN’s request and expense, assisting in such defense. If the Software becomes, or in LGN’s opinion is likely to become, the subject of an Infringement Claim, LGN may at its sole expense and option:
procure for the End User the right to continue to use the alleged infringing Software;
replace or modify the appropriate Software to make it non-infringing; or
accept return of the Software and refund payments made by the End User less a reasonable allowance for the period of time the End User has used the Software. Notwithstanding the foregoing, LGN shall have no liability for any Infringement Claims or allegations of infringement based on:
a. the End User’s use of any product after LGN’s notice that the End User should cease use of such product due to an Infringement Claim or allegation of infringement;
b. any modification of the Software by the End User or at its direction;
c. the End User’s combination of Software with non-LGN programs, data, hardware, or other materials, if such Infringement Claim would have been avoided by the use of the Software without such combination; or
d. any trademark infringement involving any marking or branding not applied by LGN. This Section 10 states LGN’s entire liability and the End User’s sole and exclusive remedy for Infringement Claims and actions.
(b) By the End User. The End User agrees to indemnify and hold harmless LGN, its licensors, employees and agents, from and against any third-party claims, demands, damages, losses and expenses (including, without limitation, attorneys’ fees) irrespective of the nature of the arisen debate. This disclaimer shall not apply in the event of claims and demands made by any third party considering the infringement by LGN of rights of intellectual property.
12. COMPLIANCE WITH LAWS
The Software and related technology may be subject to export or import regulations. The End User agrees to strictly comply with all such laws and regulations and acknowledges that the End User has the responsibility to obtain such licenses to export, re-export or import as may be required.
This Agreement shall be governed, construed and enforced in accordance with the laws of the Netherlands, without reference to conflict of laws principles. In the event of disputes, parties shall at first try to settle their differences by mutual consideration. If parties are not able to settle their differences after mutual debate, any dispute arising out of or in connection with this Agreement shall be referred to and finally settled by the competent court in The Hague.
The End User may not assign or transfer its rights or obligations arising under this Agreement to any third party, including any group enterprise, parent companies, subsidiaries and affiliated companies of the End User, and any such attempted assignment or transfer shall be void and without effect.
It is prohibited for the End User to alter, copy or duplicate the LGN Software. The End User is not permitted to use the Software for any other purpose than that for which it is intended. All rights of intellectual property or similar rights shall remain the possession of LGN. The End User shall respect the rights of intellectual property of LGN. It is prohibited for the End User to sublicense the Software purchased from LGN.
This Agreement may not be modified except upon mutual written agreement of both parties. The waiver by either party of a breach of any provision of this Agreement shall not operate or be interpreted as a waiver of any other or subsequent breach.
If any provision of this Agreement is deemed unenforceable, such provision shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions shall continue in full force and effect. This Agreement, including the general terms of LGN, sets forth the entire understanding of the parties and supersedes any and all prior oral and written agreements or understandings between the parties regarding the subject matter of this Agreement.
14. NOTICE TO USERS
The End User shall inform all users of the Software of the terms and conditions of this Agreement.
The End User has read, understands and agrees to the terms and conditions of this Agreement and is duly authorized to execute this Agreement on behalf of the End User.