QCHECK SOFTWARE
Grant of License. NetIQ Corporation is licensing (not selling) the enclosed Qcheck software (the "Software") to you in object code form. NetIQ grants you the non-exclusive, non-transferable right to do the following: (a) install the Software on an unlimited number of computers; (b) use and operate the Software on an unlimited number of computers, each operating on a compatible platform; (c) make multiple copies of the Software for the purposes contemplated above, as well as for backup and archival purposes; and (d) use any accompanying documentation (the "Documentation") during the term of this Agreement in support of your use of the Software. You are further permitted to reproduce and distribute the Software in object code format; provided, however, that you agree to reproduce all copyright and other notices contained within the Software. You acknowledge that the Software contains a "pop-up" click-wrap license and agree that you will not omit, delete, alter, or disable such license on any copies of the Software made by you under this Agreement.
Protection of Software. You agree to take all reasonable steps to protect the Software and Documentation from unauthorized copying or use. The Software and Documentation represent and contain certain copyrighted materials, as well as trade secrets and other valuable proprietary information of NetIQ and/or its licensors. The source code and embodied proprietary information and trade secrets are not licensed to you, and any modification, addition or deletion is strictly prohibited. You agree not to disassemble, decompile, or otherwise reverse engineer the Software, or examine network flows or related flow methodology employed by the Software, in order to discover the source code or other proprietary information and trade secrets contained in the Software.
Ownership. NetIQ and its licensors own all rights of authorship, including copyright and all patent rights, in and to the Software and the Documentation. NetIQ continues to own the copy of the Software contained in this package and all other copies that you are authorized by this Agreement to make (all such authorized copies being expressly included in the term "Software," as used in this Agreement). You shall own only the magnetic or other physical media on which the Software is recorded. NetIQ and/or its licensors reserve all rights, including copyright and patent rights, not expressly granted to you in this Agreement.
Term. This Agreement will terminate automatically if you fail to comply with any term or condition of this Agreement. You agree, upon any such termination by NetIQ, to destroy all copies of the Software and Documentation.
DISCLAIMER OF WARRANTY
THE SOFTWARE IS PROVIDED "AS IS." NETIQ DOES NOT WARRANT THAT THE SOFTWARE OR DOCUMENTATION WILL SATISFY YOUR REQUIREMENTS OR THAT THE SOFTWARE OR ITS DOCUMENTATION ARE FREE OF ERRORS OR DEFECTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED.
NETIQ SPECIFICALLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS, EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF CONDITION OR MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALL OTHER IMPLIED TERMS ARE EXCLUDED.
YOU ACKNOWLEDGE AND AGREE THAT YOU SHALL BEAR THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE. NETIQ SHALL NOT BE LIABLE FOR ANY CLAIM OR RIGHT TO RECOVER ANY DAMAGES, INCLUDING BUT NOT LIMITED TO, LOST PROFITS, LOSS OF DATA OR LOSS OF USE OF THE SOFTWARE OR ANY OTHER KIND OF SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF NETIQ HAS BEEN EXPLICITLY INFORMED ABOUT THE POSSIBILITY OF SUCH DAMAGES.
THE ABOVE LIMITATION MAY NOT APPLY TO YOU BECAUSE YOUR STATE MAY NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS.
GENERAL PROVISIONS
Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina, except as to copyright and trademark matters governed by United States Laws and International Treaties. This Agreement shall inure to the benefit of NetIQ Corporation, its successors and assigns. This Agreement is deemed entered into in Wake County, North Carolina.
Entire Agreement. This Agreement sets forth the entire understanding between you and NetIQ with respect to the subject matter hereof. This Agreement may be amended only in writing signed by NetIQ and by you. Nothing contained in any purchase order, acknowledgment, invoice or other form submitted by you in connection with the license of the Software shall amend or affect the provisions of this Agreement. NO VENDOR, DISTRIBUTOR, DEALER, RETAILER, SALES PERSON OR OTHER PERSON IS AUTHORIZED TO MODIFY THIS AGREEMENT OR TO MAKE ANY WARRANTY, REPRESENTATION OR PROMISE WHICH IS DIFFERENT THAN, OR IN ADDITION TO, THE REPRESENTATIONS OR PROMISES OF THIS AGREEMENT.
Patents. United States Patent Numbers 5,838,919, 5,881,237, 5,937,165 and 6,061,725. Other patents pending.
Government User. Rights in Data: If procured by, or provided to, the U.S. Government, use duplication, or disclosure of technical data is subject to restrictions as set forth in FAR 52.227-14(g)(2), Rights in Data-General (June 1987); and for computer software and computer software documentation, FAR 52.227-19, Commercial Computer Software-Restricted Rights (June 1987). However, if under DOD, use, duplication, or disclosure of technical data is subject to DFARS 252.227-7015(b), Technical Data-Commercial Items (June 1995); and for computer software and computer software documentation, as specified in the license under which the computer software was procured pursuant to DFARS 227.7202-3(a). Licensee shall not provide Software nor technical data to any third party, including the U.S. Government, unless such third party accepts the same restrictions. Licensee is responsible for ensuring that proper notice is given to all such third parties and that the Software and technical data are properly marked.
Export. Export of the Software and the Documentation outside of the United States is subject to the Export Administration Regulations of the Bureau of Export Affairs, United States Department of Commerce. In the event you desire to export the Software outside the United States, the Software shall at all times remain subject to the terms of this Agreement, and you agree to be responsible, at your own expense, for complying with all applicable regulations governing such export. NetIQ makes no warranty relating to the exportability of the Software to any particular country.
Country Specific Legal Terms. The following terms apply only to Software that is licensed for use in the referenced country, where the referenced country is also the Governing Law:
Australia. To the maximum extent permitted by applicable law, subject to any provision of this Agreement, the limited warranties given by NetIQ herein are exclusive and are in lieu of all other warranties and conditions whatsoever, whether express, implied or statutory. Notwithstanding any other provision herein, if anything arising out of or connected with this Agreement constitutes a supply of goods or services to a consumer, then you may have the benefit of certain rights or remedies pursuant to the Trade Practices Act and similar state and territory laws in Australia, in respect of which liability may not be excluded or restricted and nothing in this Agreement will have the effect of so excluding or restricting those rights or remedies. Insofar as such liability may not be excluded, then to the maximum extent permitted by law such liability is limited, at NetIQ's exclusive option, to either replacement of the Software or correction of defects in the Software. Nothing in this Agreement is intended to prejudice, or have the effect of prejudicing, any rights NetIQ may have under Australian law or of the States of Australia, which cannot legally be excluded or restricted and the terms of this Agreement must be read accordingly.
Austria, Germany, and Switzerland. The limitations and exclusions specified in this agreement will not apply to damages caused by NetIQ with intention or gross negligence. NetIQ is liable for assured characteristics.
Indonesia. To the extent necessary to implement the termination provisions of this Agreement, each of the parties hereby waives any right or obligation, it or the other party may have under applicable law or regulation, including without limitation Article 1266 of the Indonesian Civil Code, to request or obtain the approval, order decision or judgment of any court to terminate this Agreement.
Ireland. No statement in this Agreement shall affect the statutory rights of consumers.
Japan. In addition to NetIQ's express disclaimers of liability in the Agreement, NetIQ is not liable for damages which have arisen through special circumstances.
New Zealand. Where products or services are not acquired for the purposes of a business as defined in the Consumer Guarantees Act 1993, the limitations of liability in this Agreement are subject to the limitations in that Act.
United Kingdom. The limitation of liability in this Agreement will not apply to claims for death or personal injury or physical damage to your tangible property caused by the negligence of NetIQ or to any breach of NetIQ's obligations implied by Section 12 of the Sales of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act 1982.
Waiver. No waiver of any right under this Agreement shall be effective unless in writing, signed by a duly authorized representative of NetIQ. Failure to insist upon strict compliance with this Agreement shall not deem to be a waiver of any future right arising out of this Agreement.
Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, such provision shall be fully severable, and this Agreement shall be construed and enforced as if the illegal, invalid or unenforceable provision had never been a part of this Agreement.
If you have any questions concerning this Agreement, please contact:
NetIQ Corporation
1100 Perimeter Park Drive, Suite 104
Morrisville, North Carolina 27560
U.S.A.
Telephone: 919-469-0997
Facsimile: 919-469-5553
