NETWORK VISIBILITY SOFTWARE END USER LICENSE AGREEMENT
This KEYSIGHT SOFTWARE END USER LICENSE AGREEMENT (this
"Agreement") is a legal agreement between you (a business entity and not an
individual) ("Licensee") and Keysight regarding Keysight's Ixia-branded
software product(s) identified in the related Keysight invoice, including all
associated media (collectively, the "SOFTWARE," as further defined below). By
checking and/or clicking the "I Accept" or similar box or button at the
beginning of the SOFTWARE download and/or installation process, and/or by
installing the SOFTWARE or having the SOFTWARE installed (for example, and not
by way of limitation, by permitting Keysight to install the SOFTWARE on
hardware owned, controlled, or operated by Licensee), and/or by using the
SOFTWARE or equipment containing the SOFTWARE, and/or by downloading the
SOFTWARE and/or by activating the SOFTWARE with any associated license key, as
applicable, you are binding the business entity that you represent (i.e.,
Licensee) to the terms and conditions of this Agreement.
If Licensee does not
agree to be bound by the terms of this Agreement, Licensee may not use the
SOFTWARE in any way, and Licensee (either itself or through any of its
employees) must not check and/or click any "I Accept" or similar box or button
associated with this Agreement during the SOFTWARE installation, activation,
and/or download process, as applicable, and must promptly return the SOFTWARE
(including, without limitation, any software media), unused, to Keysight. 1.
CERTAIN DEFINITIONS
(a) "Server Software" is software that is intended for use
on an Keysight Ixia-branded Hardware Chassis or other Keysight-approved
hardware product, and that provides certain services on that product.
(b)
"Client Software" is software that is intended for use on a computer
workstation, and that allows an end user to access and utilize the services of
Server Software.
(c) "License Management Software" is software that provides
certain software license management services on a computer server.
(d) "Open
Source Software" is any software or software component, module, or package that
contains, or is derived in any manner (in whole or in part) from, any software
that is distributed as free software, open source software, or under similar
licensing or distribution models, including, without limitation, software
licensed or distributed under any of the following licenses or distribution
models, or licenses or distribution models similar to any of the following: (i)
GNU's General Public License (GPL) or Lesser/Library GPL (LGPL); (ii) the
Artistic License (e.g., PERL); (iii) the Mozilla Public License; (iv) the
Netscape Public License; (v) the Sun Community Source License (SCSL); (vi) the
Sun Industry Standards License (SISL); (vii) the BSD License; and (viii) the
Apache License.
2. GRANT OF LICENSE
Subject to the terms, conditions, and
restrictions in this Agreement, Keysight grants to Licensee a limited,
non-exclusive, non-transferable, and non-sublicensable license to (i) install
and use the Server Software, the Client Software the License Management
Software, and the Open Source Software (collectively, and together with any
copies thereof made in accordance with this Agreement, the "SOFTWARE") for
which Licensee has paid or will pay to Keysight any required license fees, in
object code form only, and (ii) use the provided end user documentation,
whether printed or electronic (together with any copies thereof made in
accordance with this Agreement, the "Documentation"), in support of Licensee's
use of the SOFTWARE. The license(s) granted above are subject to the following
terms and conditions, as well as all other terms and conditions in this
Agreement and in the applicable Keysight invoice: (a) Server Software. Any
Server Software included in the SOFTWARE may be installed and/or used only on
the particular Keysight Ixia-branded Hardware Chassis or other
Keysight-approved hardware product for which such Server Software is
designated.
(b) Client Software. Except as otherwise provided in the
applicable Keysight invoice, any Client Software included in the SOFTWARE may
be installed and/or used on an unlimited number of computer workstations. Such
use is subject to any further restrictions in the applicable Keysight invoice,
including but not limited to any restrictions limiting the number of Client
Software copies that can concurrently access and utilize the services of a
particular copy of Server Software.
(c) License Management Software. Any
License Management Software included in the SOFTWARE may be installed and/or
used only on the number of designated servers corresponding with the total
number of licenses specified in the applicable Keysight invoice.
(d) Open
Source Software. Licensee hereby acknowledges that the SOFTWARE may utilize or
include Open Source Software that must be licensed under the specific license
terms applicable to that Open Source Software ("Open Source License"). Open
Source License terms are available at
https://support.ixiacom.com/support-services/warranty-license-agreements or in
other materials provided by Keysight. Notwithstanding anything to the contrary
in this Agreement, to the extent that any such Open Source License requires
that the corresponding Open Source Software be licensed to Licensee under terms
that are different than the terms set forth in this Agreement, then such Open
Source Software is licensed under the terms of that Open Source License and the
other terms and conditions in this Agreement shall not apply with respect to
that Open Source Software. Licensee (i) acknowledges that any such Open Source
License is solely between Licensee and the applicable licensor of the Open
Source Software and (ii) agrees to comply with the terms of any such Open
Source License. Any Open Source License associated with Open Source Software
applies only to that Open Source Software and not the other software included
in the SOFTWARE.
(e) Updates and Releases. To the extent that, the Limited
Warranty and Technical Support Agreement (the "Limited Warranty Agreement"),
Keysight or an affiliate provides Licensee with any revised, modified, or
replacement SOFTWARE, or additional or supplemental SOFTWARE, or any updates,
releases, error corrections, or bug fixes related to the SOFTWARE, the same
shall become part of the "SOFTWARE" licensed hereunder when delivered to
Licensee and shall be subject to all of the terms and conditions contained
herein. With respect to any technical information Licensee provides to
Keysight or an affiliate in connection with the license(s) granted to Licensee
hereunder, Keysight may use such information for any purpose without
restriction, including, without limitation, for product support and
development. Keysight will not use such technical information in a form that
identifies Licensee.
(f) Media; License Keys. Licensee may receive the
SOFTWARE in more than one medium, or Licensee may receive copies of the
SOFTWARE that are compatible with operating systems not specified on the
applicable invoice. Regardless, Licensee may use the SOFTWARE only as expressly
permitted in this Agreement. Licensee acknowledges and agrees that
installation and/or use of certain SOFTWARE may be subject to activation by
license key.
(g) Copies. Except as is otherwise expressly provided in this
Agreement, Licensee may make only one copy of the SOFTWARE, and may use that
copy only for backup and archival purposes. Licensee may copy the
Documentation to the limited extent reasonably necessary to facilitate
Licensee's use of the SOFTWARE in accordance with this Agreement.
(h)
Reservation of Rights. Keysight reserves all rights not expressly granted
herein.
3. TITLE; COPYRIGHT; PATENTS; NO SALE
(a) Ownership. Certain of the
SOFTWARE may contain or be based upon software and/or other materials licensed
to Keysight by third party licensors. Licensee acknowledges and agrees that
the SOFTWARE (including but not limited to any proprietary protocols
implemented therein) constitutes valuable trade secrets of Keysight, its
affiliates, and/or its licensors (as applicable). Licensee further
acknowledges and agrees that Keysight, its affiliates, and/or its licensors (as
applicable) own all rights, title, and interest in and to the SOFTWARE and the
Documentation (including, without limitation, any all copies, extracts, and
associated media thereof, all concepts, logic, protocols, and specifications
related thereto, and all images, "applets," photographs, animations, video,
audio, and/or text incorporated therein), as well as all patents, trademarks,
trade names, inventions, copyrights, know-how, trade secrets, and other
intellectual and industrial property rights, and any related applications or
extensions, relating thereto or relating to the design, manufacture, operation,
or service of the SOFTWARE.
(b) Copyright; Copies. Licensee acknowledges and
agrees that the SOFTWARE and the Documentation is protected by United States
copyright laws and international treaty provisions. Licensee must treat the
SOFTWARE and the Documentation like any other copyrighted material and may only
make copies as expressly permitted herein.
(c) Licensed Not Sold. Licensee
acknowledges and agrees that the SOFTWARE and the Documentation has been
licensed to Licensee pursuant to the terms and conditions of this Agreement and
that neither the SOFTWARE nor the Documentation has been sold to Licensee.
4.
RESTRICTIONS AND LIMITATIONS
(a) General Use Restrictions. Licensee shall not
use, copy, merge, or transfer copies of the SOFTWARE or the Documentation
except as may be expressly and specifically authorized in this Agreement.
Licensee shall not knowingly take any action that would cause the SOFTWARE or
the Documentation to be placed in the public domain.
(b) No Reverse
Engineering; No Modification. Licensee may not, under any circumstances,
reverse engineer, decompile, disassemble, or otherwise attempt to discover,
reconstruct, or identify the source code for the SOFTWARE or any user interface
techniques, algorithms, logic, protocols, or specifications included,
incorporated, or implemented therein. Furthermore, Licensee may not, under any
circumstances and except as expressly authorized by Keysight in the
Documentation, modify, port, translate, or create derivative works of the
SOFTWARE or the Documentation.
(c) Rental; Leasing. Licensee may not, and
agrees that it will not, transfer, assign, rent, lease, lend, resell, or in any
way distribute or transfer any rights in this Agreement, the SOFTWARE, or the
Documentation to third parties, including by operation of law, without
Keysight's prior written approval and subject to written agreement by the
recipient to the terms of this Agreement.
(d) Export Restrictions; Compliance
with Laws. Licensee agrees that Licensee will not, directly or indirectly,
export or transmit the SOFTWARE or the Documentation to any country to which
such export or transmission is restricted by any applicable U.S. regulation or
statute, without the prior written consent, if required, of the Bureau of
Export Administration of the U.S. Department of Commerce or such other
governmental entity as may have jurisdiction over such export or transmission.
Licensee agrees to comply with and conform to all applicable laws, regulations,
ordinances, and executive orders relating to Licensee's use of the SOFTWARE and
the Documentation.
5. USE AUDIT
Keysight shall have the right, upon
reasonable notice, to conduct and/or have an independent accounting firm to
conduct, during normal business hours on Licensee's premises under Licensee's
reasonable supervision, an audit to verify Licensee's compliance with the terms
of this Agreement. 6. TERM AND TERMINATION
(a) General. Except as provided
below with respect to evaluation and limited term licenses, this Agreement and
the license(s) granted herein will remain effective until terminated. Licensee
may terminate this Agreement and the license(s) granted herein by ceasing all
use of the SOFTWARE and the Documentation, and returning all copies of the
SOFTWARE and the Documentation to Keysight. The license(s) granted to Licensee
under this Agreement will automatically terminate if Licensee fails to comply
with any term or condition of this Agreement.
(b) Evaluation and Term
Licenses. If the SOFTWARE has been licensed to Licensee for evaluation
purposes, then the term of this Agreement will continue only until the end of
the designated evaluation period. If the SOFTWARE has been licensed to
Licensee for a limited period as specified in the applicable invoice or
otherwise, then the term of this Agreement will continue only until the end of
that period. SOFTWARE that is subject to any evaluation or limited term
license may contain code that can disable most or all of the features of such
SOFTWARE upon expiration of such evaluation or limited term license, and unless
Licensee has paid to Keysight the applicable license fee for any additional
licenses, Licensee shall have no rights to use the SOFTWARE or the
Documentation upon expiration of any such license.
(c) Licensee Obligations
Upon Termination or Expiration. Licensee agrees, upon any termination or
expiration of this Agreement, to cease use of, and to destroy or return to
Keysight, all copies of the SOFTWARE and any related Documentation. Sections
1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, and 13 of this Agreement shall survive any
expiration or termination of this Agreement for any reason and continue in full
force and effect.
7. LIMITED WARRANTY; DISCLAIMER; LIMITATION OF LIABILITY
(a) DISCLAIMER OF WARRANTY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,
AND EXCEPT AS EXPRESSLY SET FORTH HEREIN OR IN THE LIMITED WARRANTY AGREEMENT,
THE SOFTWARE AND THE DOCUMENTATION IS PROVIDED "AS IS", AND KEYSIGHT AND ITS
SUPPLIERS AND LICENSORS DO NOT MAKE AND SPECIFICALLY DISCLAIM ALL EXPRESS AND
IMPLIED WARRANTIES OF EVERY KIND RELATING TO THE SOFTWARE, THE DOCUMENTATION,
AND/OR USE OF THE SOFTWARE OR THE DOCUMENTATION (INCLUDING, WITHOUT LIMITATION,
ACTUAL AND IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE, AND NON-INFRINGEMENT), AS WELL AS ANY WARRANTIES THAT THE SOFTWARE,
THE DOCUMENTATION, OR ANY ELEMENTS THEREOF WILL ACHIEVE A PARTICULAR RESULT, OR
WILL BE UNINTERRUPTED OR ERROR-FREE.
(b) LIMITATION OF LIABILITY. TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL KEYSIGHT OR ITS
LICENSORS BE LIABLE IN CONNECTION WITH THIS AGREEMENT, THE SOFTWARE, THE
DOCUMENTATION, AND/OR ANY USE OF THE SOFTWARE OR THE DOCUMENTATION, UNDER ANY
THEORY OF LIABILITY, FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL,
PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION,
DAMAGES ARISING FROM LOSS OF PROFITS, REVENUE, DATA, OR USE, OR FROM
INTERRUPTED COMMUNICATIONS OR DAMAGED DATA, OR FROM ANY DEFECT OR ERROR, OR IN
CONNECTION WITH LICENSEE'S ACQUISITION OF SUBSTITUTE GOODS OR SERVICES OR
MALFUNCTION OF THE SOFTWARE OR THE DOCUMENTATION, OR ANY SUCH DAMAGES ARISING
FROM BREACH OF CONTRACT OR WARRANTY OR FROM NEGLIGENCE OR STRICT LIABILITY,
EVEN IF KEYSIGHT OR ANY OF ITS LICENSORS OR ANY OTHER PERSON HAS BEEN ADVISED
OR SHOULD KNOW OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE
FAILURE OF ANY REMEDY TO ACHIEVE ITS INTENDED PURPOSE. FUTHER, IN NO EVENT
SHALL KEYSIGHT'S MAXIMUM, AGGREGATE LIABILITY IN CONNECTION WITH THIS
AGREEMENT, THE SOFTWARE, THE DOCUMENTATION, AND/OR ANY USE OF THE SOFTWARE OR
THE DOCUMENTATION EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY LICENSEE FOR THE
SOFTWARE.
(c) KEYSIGHT LIMITED AND EXTENDED WARRANTIES. THE SOFTWARE IS
LICENSED HEREUNDER SUBJECT TO ALL OF THE "OTHER LIMITATIONS" SET FORTH IN THE
LIMITED WARRANTY AGREEMENT.
(d) Responsibilities of Licensee. As a licensee
of the SOFTWARE, Licensee is solely responsible for the proper installation and
operation of the SOFTWARE in accordance with the instructions and
specifications set forth in the Documentation. Keysight shall have no
responsibility or liability to Licensee, under the Limited Warranty Agreement
or otherwise, for improper installation or operation of the SOFTWARE. Any
output or execution errors resulting from improper installation or operation of
the SOFTWARE shall not be deemed "defects" for purposes of the Limited Warranty
Agreement.
8. INDEMNITY
Licensee hereby agrees to indemnify, protect, defend,
and hold Keysight harmless from and against any and all claims, losses, and
damages, including without limitation, reasonable attorneys' and experts' fees
and disbursements, which may at any time be asserted against Keysight by any
party for (a) Licensee's failure to perform or comply with any of the
covenants, agreements, terms, provisions, or conditions contained in this
Agreement, or (b) Licensee's use or misuse of the SOFTWARE or the
Documentation. 9. NON-DISCLOSURE
Licensee shall take all reasonable steps
necessary to ensure that the SOFTWARE, the Documentation, and any related
Keysight information, or any portion thereof, is not made available or
disclosed by Licensee (or by any of its employees, representatives, or agents)
to any person other than as may be necessary to Licensee's employees,
representatives, and agents to use the same as expressly permitted herein.
Licensee agrees that all of its employees, representatives, and agents having
access to the SOFTWARE and/or the Documentation shall observe and perform the
terms of this Section. 10. U.S. GOVERNMENT RESTRICTED RIGHTS
(a) Commercial
Software. The SOFTWARE and its accompanying Documentation are deemed to be
"commercial computer software" and "commercial computer software
documentation," respectively, for purposes of Federal Acquisition Regulations
("FAR") 12.212 and the Defense FAR Supplement ("DFARS") 227.7202-1, 227.7202-3,
and 227.7202-4, and the restrictions set forth in such regulations, and this
Agreement shall be deemed to be the license described in such regulations. Any
use, modification, reproduction, release, performance, display, or disclosure
of the SOFTWARE or its accompanying Documentation by any agency, department, or
entity of the United States Government (the "Government") shall be governed
solely by the terms of this Agreement and is prohibited except to the extent
expressly permitted by the terms of this Agreement. The SOFTWARE and its
accompanying Documentation are also deemed to be "restricted computer software"
for purposes of FAR 52.227-14(g)(3) (Alternate III (June 1987)) and FAR
52.227-19, which clauses are incorporated herein by reference subject to the
express restrictions and prohibitions set forth above.
(b) Certain Technical
Data. Any technical data provided that is not covered by the above provisions
is deemed to be "technical information related to commercial computer software
or commercial computer software documentation" for purposes of FAR 12.212 and
the restrictions set forth therein, and is deemed to be "technical data or
information related or pertaining to commercial items or processes" developed
at private expense for purposes of DFARS 227.7102-1 and 227.7102-2 and the
restrictions set forth therein, and this Agreement shall be deemed to be the
license described in such regulations. Any use, modification, reproduction,
release, performance, display, or disclosure of such technical data by the
Government shall be governed solely by the terms of this Agreement and is
prohibited except to the extent expressly permitted by the terms of this
Agreement. Such technical data is also deemed to be "limited rights data" as
defined in FAR 52.227-14(a) (Alternate I (June 1987)) and for purposes of FAR
52.227-14(g)(2) (Alternate II (June 1987)), which clauses are incorporated
herein by reference subject to the express restrictions and prohibitions set
forth above. Such technical data shall also be deemed to be "technical data"
for purposes of DFARS 252.2277015, which clause is incorporated herein by
reference subject to the express restrictions and prohibitions set forth above.
(c) Third Party Acceptance of Restrictions. Licensee shall not provide the
SOFTWARE, its accompanying Documentation, or the technical data to any party,
including the Government, unless such third party accepts the same restrictions
as are set forth in this Section 10. Licensee is responsible for ensuring that
the proper notice is given to all such third parties and that the SOFTWARE, its
accompanying Documentation, and the technical data are properly marked with the
required legends. Nothing in this Section 10(c) shall be deemed to modify the
restrictions on transfer or disclosure set forth elsewhere in this Agreement.
11. GOVERNING LAW; ENFORCEMENT
(a) Governing Law. This Agreement and the
rights and obligations of the parties hereunder shall be governed by the laws
of the State of California, without reference to conflicts of laws principles;
provided, however, that if this product was acquired outside the United States,
then certain local laws may apply. IN ADDITION, THIS AGREEMENT WILL NOT BE
GOVERNED OR INTERPRETED IN ANY WAY BY REFERRING TO ANY LAW BASED ON THE UNIFORM
COMPUTER INFORMATION TRANSACTIONS ACT (UCITA), EVEN IF THAT LAW HAS BEEN
ADOPTED IN CALIFORNIA, AND THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE
INTERNATIONAL SALE OF GOODS IS HEREBY EXCLUDED.
(b) Equitable Relief.
Licensee acknowledges that any actual or threatened breach of the provisions of
this Agreement will constitute immediate, irreparable harm to Keysight and its
licensors (as applicable) for which monetary damages would be an inadequate
remedy; that injunctive relief is an appropriate remedy for any such breach or
threatened breach; and that, in such event, Keysight (and/or its licensors, as
applicable) will be entitled to immediate injunctive relief without the
requirement of posting bond.
12. INVALIDITY OF PROVISIONS
If any provision in
this Agreement is invalid or unenforceable, such provision shall be construed,
limited, or altered, as necessary, to eliminate the invalidity or
unenforceability and all other provisions of this Agreement shall remain in
effect.
13. MISCELLANEOUS
(a) This Agreement and the Limited Warranty
Agreement set forth the entire agreement between Keysight and Licensee with
respect to the SOFTWARE, the Documentation, and Licensee's use thereof. No
provision of this Agreement or of the Limited Warranty Agreement may be waived,
modified, or superseded except by a written instrument signed by each of
Keysight and Licensee. Both parties hereby acknowledge and agree that any and
all licensors of Keysight (and any and all licensors of Keysight's licensors)
shall be direct and intended third party beneficiaries of this Agreement
(including, without limitation, the provisions regarding intellectual property
ownership, and the disclaimers of warranties and limitations on liability, as
set forth herein), with the right to directly enforce same. No failure or
delay in exercising any right or remedy shall operate as a waiver of any such
(or any other) right or remedy. The language of this Agreement shall be
construed as a whole, according to its fair meaning and intent, and not
strictly for or against either party, regardless of who drafted or was
principally responsible for drafting this Agreement or any specific term or
conditions hereof. This Agreement shall bind and inure to the benefit of the
parties and their successors and permitted assigns. Both parties are acting as
independent contractors with respect to the activities hereunder. In the event
of any legal proceeding between the parties arising out of or related to this
Agreement, the prevailing party shall be entitled to recover, in addition to
any other relief awarded or granted, its costs and expenses (including but not
limited to reasonable attorneys' and expert witness' fees) incurred in any such
proceeding.
Third Party License file.
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