END-USER LICENSE AGREEMENT FOR SCOM 2012 MAINTENANCE MODE SCHEDULER SOFTWARE
IMPORTANT—READ CAREFULLY: This End-User License Agreement (“EULA”) is a legal agreement between you (a single entity) and SCOM2K7 for the SCOM 2012 Maintenance Mode Scheduler software that accompanies this EULA, which includes associated media and SCOM2K7 software services (“Software”). An amendment or addendum to this EULA may accompany the Software. YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA BY INSTALLING, COPYING, OR USING THE SOFTWARE. IF YOU DO NOT AGREE, DO NOT INSTALL, COPY, OR USE THE SOFTWARE.
1. GRANT OF LICENSE. SCOM2K7 grants you the following rights provided that you comply with all terms and conditions of this EULA:
1.1 Installation and use
If you are using the Software under the control of License, you may:
(a) Install the Software on one Server, one Failover Server, and one Test Server at multiple locations.
(b) Use the Software by an unlimited number of concurrent users as long as each user is employed by a single Organization and working at one of the official offices/branches.
(c) Use of software is limited to number of Agents in SCOM Management Group as specified by the license. This includes Windows and Unix/Linux managed Agents.
SCOM 2012 Maintenance Mode Scheduler
If Licensee purchases the License directly from SCOM2K7, registration is automatic.
You agree that SCOM2K7 may audit your use of the Software for compliance with these terms at any time, upon reasonable notice. In the event such audit reveals any use of the Software by you other than in full compliance with the terms of this Agreement, you shall reimburse SCOM2K7 for all reasonable expenses related to such audit in addition to any liabilities you may occur as a result of such non-compliance.
2. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS
2.1 Software Activation.
SOME SOFTWARE PRODUCTS MAY INCLUDE TECHNOLOGICAL MEASURES THAT ARE DESIGNED TO PREVENT UNLICENSED USE OF THE SOFTWARE. You may not be able to exercise your rights to the Software under this EULA after a finite number of product launches unless you activate your copy of the Software in the manner described during the launch sequence. You may also need to reactivate the Software if you modify your computer hardware or alter the Software. SCOM2K7 will use those measures to confirm you have a legally licensed copy of the Software. If you are not using a licensed copy of the Software, you are not allowed to install the Software or future Software updates. SCOM2K7 will not collect any personally identifiable information from your device during this process.
3. RESERVATION OF RIGHTS AND OWNERSHIP. SCOM2K7 reserves all rights not expressly granted to you in this EULA. The Software is protected by copyright and other intellectual property laws and treaties. SCOM2K7 or its suppliers own the title, copyright, and other intellectual property rights in the Software. The Software is licensed, not sold. This EULA does not grant you any rights to trademarks or service marks of SCOM2K7.
4. LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION, AND DISASSEMBLY. You may not reverse engineer, decompile, or disassemble the Software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
5. CONSENT TO USE OF DATA. You agree that SCOM2K7 and its affiliates may collect and use technical information gathered as part of the product support services provided to you, if any, related to the Software.
SCOM2K7 may use this information solely to improve our products or to provide customized services or technologies to you and will not disclose this information in a form that personally identifies you.
8. ADDITIONAL SOFTWARE/SERVICES. This EULA applies to updates, supplements, add-on components, or Internet-based services components, of the Software that SCOM2K7 may provide to you or make available to you after the date you obtain your initial copy of the Software, unless they are accompanied by separate terms.
SCOM2K7 reserves the right to discontinue Internet-based services provided to you or made available to you through the use of the Software.
9. UPGRADES. To use Software identified as an upgrade, you must first be licensed for the software identified by SCOM2K7 as eligible for the upgrade. After installing the upgrade, you may no longer use the original software that formed the basis for your upgrade eligibility, except as part of the upgraded software.
10. NOT FOR RESALE SOFTWARE. Software identified as “Not for Resale” or “NFR,” may not be sold or otherwise transferred for value, or used for any purpose other than demonstration, test or evaluation.
11. EXPORT RESTRICTIONS. You acknowledge that the Software is subject to U.S. export jurisdiction. You agree to comply with all applicable international and national laws that apply to the Software, including the U.S. Export Administration Regulations, as well as end-user, end-use, and destination restrictions issued by U.S. and other governments.
12. SEPARATION OF COMPONENTS. The Software is licensed as a single product. Its component parts may not be separated for use on more than one device.
13. SOFTWARE TRANSFER. Internal. You may transfer your copy of the Software to a different device. After the transfer, you must completely remove the Software from the former device. Transfer to Third Party. If you are the person who initially licensed the Software, you may make a one-time permanent transfer of this EULA, Software and Certificate of Authenticity (if applicable) to another end user, provided that you do not retain any copies of the Software. This transfer must include all of the Software (including all component parts, the media and printed materials, any upgrades, this EULA, and, if applicable, the Certificate of Authenticity). The transfer may not be an indirect transfer, such as a
consignment. Prior to the transfer, the end user receiving the Software must agree to all the EULA terms.
14. TERMINATION. Without prejudice to any other rights, SCOM2K7 may terminate this EULA if you fail to comply with the terms and conditions of this EULA. In such event, you must destroy all copies of the Software and all of its component parts.
15. LIMITED WARRANTY FOR SOFTWARE ACQUIRED IN THE US AND CANADA. SCOM2K7 warrants that the Software will perform substantially in accordance with the accompanying materials for a period of ninety (90) days from the date of receipt. If an implied warranty or condition is created by your state/jurisdiction and federal or state/provincial law prohibits disclaimer of it, you also have an implied warranty or condition, BUT
ONLY AS TO DEFECTS DISCOVERED DURING THE PERIOD OF THIS LIMITED WARRANTY (NINETY DAYS). AS TO ANY DEFECTS DISCOVERED AFTER THE NINETY DAY PERIOD, THERE IS NO WARRANTY OR CONDITION OF ANY KIND. Some states/jurisdictions do not allow limitations on how long an implied warranty or condition lasts, so the above limitation may not apply to you.
Any supplements or updates to the Software, including without limitation, any (if any) service packs or hot fixes provided to you after the expiration of the ninety day Limited Warranty period are not covered by any warranty or condition, express, implied or statutory. LIMITATION ON REMEDIES; NO CONSEQUENTIAL OR OTHER DAMAGES. Your exclusive remedy for any breach of this Limited Warranty is as set forth below. Except for any refund elected by SCOM2K7, YOU ARE
NOT ENTITLED TO ANY DAMAGES, INCLUDING BUT NOT LIMITED TO CONSEQUENTIAL
DAMAGES, if the Software does not meet SCOM2K7’s Limited Warranty, and, to the maximum extent allowed by applicable law, even if any remedy fails of its essential purpose. The terms of Section 18 (“Exclusion of Incidental, Consequential and Certain Other Damages”) are also incorporated into this Limited Warranty. Some states/jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. This Limited Warranty gives you specific legal rights. You may have other rights which vary from state/jurisdiction to state/jurisdiction. YOUR EXCLUSIVE REMEDY.
SCOM2K7’s and its suppliers’ entire liability and your exclusive remedy for any breach of this Limited Warranty or for any other breach of this EULA or for any other liability relating to the Software shall be, at SCOM2K7’s option from time to time exercised subject to applicable law, (a) return of the amount paid (if any) for the
Software, or (b) repair or replacement of the Software, that does not meet this Limited Warranty and that is returned to SCOM2K7 with a copy of your receipt. You will receive the remedy elected by SCOM2K7 without charge, except that you are responsible for any expenses you may incur (e.g. cost of shipping the Software to SCOM2K7). This Limited Warranty is void if failure of the Software has resulted from accident, abuse, misapplication, abnormal use or a virus. Any replacement Software will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer, and SCOM2K7 will use commercially reasonable efforts to provide your remedy within a commercially reasonable time of your compliance with SCOM2K7’s warranty remedy procedures. Outside the United
States or Canada, neither these remedies nor any product support services offered by SCOM2K7 are available without proof of purchase from an authorized international source.
16. DISCLAIMER OF WARRANTIES. The Limited Warranty that appears above is the only express warranty made to you and is provided in lieu of any other express warranties or similar obligations (if any) created by any advertising, documentation, packaging, or other communications. Except for the Limited Warranty and to the maximum extent permitted by applicable law, SCOM2K7 and its suppliers provide the Software and support services (if any) AS IS AND WITH ALL FAULTS, and hereby disclaim all other warranties and conditions, whether express, implied or statutory, including, but not limited to, any (if any) implied warranties, duties or conditions of merchantability, of fitness for a particular purpose, of reliability or availability, of accuracy or completeness of responses, of results, of workmanlike effort, of lack of viruses, and of lack of negligence, all with regard to the Software, and the provision of or failure to provide support or other services, information, software, and related content through the Software or otherwise arising out of the use of the Software. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, AND CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT WITH REGARD TO THE SOFTWARE.
17. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SCOM2K7 OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATON, SOFTWARE, AND RELATED CONTENT THROUGH THE SOFTWARE OR OTHERWISE ARISING OUT OF THE USE OF THE SOFTWARE, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS EULA, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF SCOM2K7 OR ANY SUPPLIER, AND EVEN IF SCOM2K7 OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
18. LIMITATION OF LIABILITY AND REMEDIES. Notwithstanding any damages that you might incur for any reason whatsoever (including, without limitation, all damages referenced herein and all direct or general damages in contract or anything else), the entire liability of SCOM2K7 and any of its suppliers under any provision of this EULA and your exclusive remedy hereunder (except for any remedy of repair or replacement elected by SCOM2K7 with respect to any breach of the Limited Warranty) shall be limited to the greater of the actual damages you incur in reasonable reliance on the Software up to the amount actually paid by you for the Software or US$99.00. The foregoing limitations, exclusions and disclaimers (including Sections 16, 17 and 18) shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
19. U.S. GOVERNMENT LICENSE RIGHTS. All Software provided to the U.S. Government pursuant to
solicitations issued on or after December 1, 1995 is provided with the commercial license rights and restrictions described elsewhere herein. All Software provided to the U.S. Government pursuant to
solicitations issued prior to December 1, 1995 is provided with “Restricted Rights” as provided for in FAR, 48 CFR 52.227-14 (JUNE 1987) or DFAR, 48 CFR 252.227-7013 (OCT 1988), as applicable.
20. APPLICABLE LAW. If you acquired this Software in the United States, this EULA is governed by the laws of the State of Delaware. If you acquired this Software in Canada, unless expressly prohibited by local law, this EULA is governed by the laws in force in the Province of Ontario, Canada; and, in respect of any dispute which may arise hereunder; you consent to the jurisdiction of the federal and provincial courts sitting in Toronto, Ontario. If you acquired this Software in the European Union, Iceland, Norway, or Switzerland, then local law applies. If you acquired this Software in any other country, then local law may apply.
21. ENTIRE AGREEMENT; SEVERABILITY. This EULA (including any addendum or amendment to this EULA which is included with the Software) is the entire agreement between you and SCOM2K7 relating to the Software and the support services (if any) and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Software or any other subject matter covered by this EULA. To the extent the terms of any SCOM2K7 policies or programs for support services conflict with the terms of this EULA, the terms of this EULA shall control. If any provision of this EULA is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect.
The following SCOM2K7 GUARANTEE applies to you if you acquired this Software in any other country:
Statutory rights not affected – The following guarantee is not restricted to any territory and does not affect any statutory rights that you may have from your reseller or from SCOM2K7 if you acquired the Software directly from SCOM2K7. If you acquired the Software or any support services in Australia, New Zealand or Malaysia, please see the “Consumer rights” section below.
The guarantee – The Software is designed and offered as general-purpose software, not for any user’s particular purpose. You accept that no Software is error free and you are strongly advised to back-up your files regularly.
Provided that you have a valid license, SCOM2K7 guarantees that a) for a period of 90 days from the date of receipt of your license to use the Software or the shortest period permitted by applicable law it will perform substantially in accordance with the written materials that accompany the Software; and b) any support services provided by SCOM2K7 shall be substantially as described in applicable written materials provided to you by SCOM2K7 and SCOM2K7 support engineers will use reasonable efforts, care and skill to solve any problem issues.
In the event that the Software fails to comply with this guarantee, SCOM2K7 will either (a) repair or replace the Software or (b) return the price you paid. This guarantee is void if failure of the Software results from accident, abuse or misapplication. Any replacement Software will be guaranteed for the remainder of the original guarantee period or 30 days, whichever period is longer. You agree that the above guarantee is your sole guarantee in relation to the Software and any support services.
Exclusion of All Other Terms – To the maximum extent permitted by applicable law and subject to the guarantee above, SCOM2K7 disclaims all warranties, conditions and other terms, either express or implied (whether by statute, common law, collaterally or otherwise) including but not limited to implied warranties of satisfactory quality and fitness for particular purpose with respect to the Software and the
written materials that accompany the Software. Any implied warranties that cannot be excluded are limited to 90 days or to the shortest period permitted by applicable law, whichever is greater.
Limitation of Liability – To the maximum extent permitted by applicable law and except as provided in the SCOM2K7 Guarantee, SCOM2K7 and its suppliers shall not be liable for any damages whatsoever (including without limitation, damages for loss of business profits, business interruption, loss of business information or other pecuniary loss) arising out of the use or inability to use the Software, even if SCOM2K7 has been advised of the possibility of such damages. In any case SCOM2K7’s entire liability under any provision of this Agreement shall be limited to the amount actually paid by you for the Software. These limitations do not apply to any liabilities that cannot be excluded or limited by applicable laws. Consumer rights – Consumers in Australia, New Zealand or Malaysia may have the benefit of certain rights and remedies by reason of the Trade Practices Act and similar state and territory laws in Australia, the Consumer Guarantees Act in New Zealand and the Consumer
Protection Act in Malaysia in respect of which liability cannot lawfully be modified or excluded. If you acquired the Software in New Zealand for the purposes of a business, you confirm that the Consumer Guarantees Act does not apply. If you acquired the Software in Australia and if SCOM2K7 breaches a condition or warranty implied under any law which cannot lawfully be modified or excluded by this agreement then, to the extent permitted by law, SCOM2K7’s liability is limited, at SCOM2K7’s option, to: (i) in the case of the Software: a) repairing or replacing the Software; or b) the cost of such repair or replacement; and (ii) in the case of support services: a) re-supply of the services; or b) the cost of having the services supplied again.
Should you have any questions concerning this EULA, or if you desire to contact SCOM2K7 for any reason, please use the address information enclosed in this Software to contact the SCOM2K7 subsidiary serving your country or visit SCOM2K7 at http://www.scom2k7.com