End User License Agreement And Limited Warranty

(Updated March 22, 2013)

THIS END USER LICENSE AGREEMENT (“AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN THE PERSON, COMPANY, OR ORGANIZATION THAT HAS LICENSED THE PROGRAM (“YOU” OR “CUSTOMER”) AND NETFORMX INC. AND ITS AFFILIATES (“NETFORMX”). PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE INSTALLING OR USING THE PROGRAM. BY INSTALLING, COPYING, DOWNLOADING, ACCESSING OR OTHERWISE USING THE PROGRAM, YOU ARE ACCEPTING AND AGREEING TO BECOME BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU ARE NOT WILLING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, OR DO NOT HAVE AUTHORITY TO BIND CUSTOMER TO THIS AGREEMENT, THEN DO NOT INSTALL, DOWNLOAD, ACCESS AND/OR USE THE PROGRAM AND PROMPTLY RETURN THE PROGRAM. UNLESS EXPRESSLY SPECIFIED OTHERWISE BY AN EXECUTED WRITTEN AGREEMENT BY AND BETWEEN YOU AND NETFORMX, THIS AGREEMENT REPRESENTS THE ENTIRE AGREEMENT CONCERNING THE PROGRAM BETWEEN YOU AND NETFORMX, AND IT SUPERSEDES AND OVERRIDES ANY PROPOSALS, REPRESENTATIONS, OR UNDERSTANDINGS BETWEEN THE PARTIES.

IMPORTANT: The Program is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Program is licensed, not sold.

1. DEFINITIONS. For purposes of this Agreement, the following definitions shall apply:
   • 1.1. “Affiliate” shall mean any entity that directly or indirectly controls, is controlled by, or is under common control by Netformx.
   • 1.2. “KnowledgeBase” shall mean the multi-vendor content library provided by Netformx and operable in conjunction with the Software.
   • 1.3. “License Delivery Date” shall mean, unless otherwise specified in a respective order, the date on which Netformx provided You with the Software Key(s) via electronic download or via any other means.
   • 1.4. “Program” means all software in object code form, licensed to You by Netformx under this Agreement (the “Software”), which may include associated media, user documentation (printed materials, and “online“ or electronic documentation), including without limitation any software modules, tools, executable files, add-ons, stencils, templates, filters, tutorials, help and other files, that comprise or accompany the Software. The Program shall be delivered via electronic download or any other means.
   • 1.5. “Software Key” means a serial number or any other code used to activate the Software.
   • 1.6. “Subscribed Services” shall mean, collectively the following services that may be provided by Netformx to its customers, at its sole discretion: (i) the support for the correction of errors in the software; (ii) the provision of Updates to You by Netformx; (iii) such other maintenance policies and hardware/software platform migration as may be mutually agreed by the Netformx and You in writing (if any); and (iv) access to the KnowledgeBase and to any updates thereto, which are electronically published and electronically made generally available by Netformx, from time to time. Subscribed Services are purchased and provided as a single service and cannot be purchased or provided independent of each other.
   • 1.7. “Update(s)” shall mean modifications, corrections, updates and enhancements to the Software, that Netformx, in its sole discretion, makes generally available as part of its Subscribed Services, from time to time, including those intended to correct an error in the Software, and that may or may not include additional features, level of performance and/or functionality for the Software. An Update may also include any new or modified related user documentation.
2. GRANT OF LICENSE.
   • 2.1. License Grant. Subject to the terms of this Agreement and full payment of the License Fee (as defined below), Netformx grants You the following limited, nonexclusive, nontransferable, fully paid license:
     • (a) To Use. Subject to this Section ‎2, to install, store, load (whether into temporary memory or into permanent memory), display, implement, and use the Software pursuant to the associated user documentation in accordance with the terms of this Agreement, including, without limitations, use limitations specified or referenced herein. You may permit a single authorized end user to use the Program only on Your single designated computer owned, leased, or in the event of the inoperability of that computer, on a backup computer You selected. This grant of License does not include nor does it permit: (i) sharing, installation or use concurrently on two or more computers, or use in a network without separate written authorization and the payment of additional license fees to Netformx; (ii) remote access to the Software across any network; and/or (iii) use for the sole benefit of any third party. You shall not have more than only one (1) installation of the Software on any single computer.
     • (b) To Copy. Subject to this Section ‎2, upon loading the Program into Your computer, You may retain the Program for backup purposes. You may make one copy of the Program in machine-readable form for backup purposes only. The backup copy must include all copyright information contained on the original. Except as authorized under this Section ‎2, no copies of the Program or any portions thereof may be made by You or any person under Your authority or control. Your rights in the Program are limited to those expressly granted in this Section ‎
   • 2.2. License Restrictions.
     • (a) Limitations on Use. You may not, or permit anyone to, copy, reverse engineer, decompile, disassemble, translate, modify, make derivative work of, or authorize others to perform any of these acts in connection with the Programs. You agree that You will not assign, sublicense, pledge, lease, rent, disclose, publish, sell, market, or transfer the Programs, share your rights under this Agreement or use the Program and/or its outputs unlawfully or in any manner not expressly authorized by this Agreement.
     • (b) Registration. You must register each installation of the Software in the name of a specific end user with Netformx via Netformx’s website (www.netformx.com) to enable and continue the use of it. If (i) the Software was not registered with Netformx pursuant to this Section ‎2.2‎(b), (ii) updates were not timely installed as per Netformx’s instructions, or (iii) any due payments were not made in full and in a timely manner, its features, functionality or any of its capabilities may become unavailable to You.
     • (c) You are responsible for maintaining the confidentiality of Your user credentials, password and Software Key. It is strictly prohibited to share Your user credentials, password or Software Key with any other person, it is Your sole responsibility to protect Your user credentials, password and Software Key and to refrain from sharing such with any other person. You understand and agree that you are liable for any activity performed by any person using this site under Your Software or Your user credentials.
     • (d) You will not delete or in any manner alter the copyright, trademark, or other proprietary rights notices of Netformx, if any, appearing on or in the Program, screen outputs and prints generated with the Program as delivered to You. You will reproduce such notices on all copies of the Program you make pursuant to this Agreement
3. SUBSCRIBED SERVICES.
   • 3.1. Subscribed Services. Subject to the full payment of the fees and subject to the terms and conditions set forth in this Agreement, the Subscribed Services are provided to You along with each Program for twelve (12) consecutive months commencing on the License Delivery Date (the “Initial Subscribed Services Term”). If Netformx, in its sole discretion, continues to provide such Subscribed Services, the Subscribed Services may be annually renewed by You subject to payment of the applicable fee in accordance with Section ‎3.3 herein. Failure to renew annual Subscribed Services upon termination or expiration of the Initial Subscribed Services Term or any subsequent Subscribed Services term may result in You having to purchase a new license in order to receive future versions of software and associated ongoing Subscribed Services.
   • 3.2. Scope of Subscribed Services. The Subscribed Services are provided under Netformx Subscribed Services Policy located on https://www.netformx.com/users/agreements-and-policies/license-agreement/ as may be amended from time to time by Netformx, at its sole discretion, without providing any prior notice to You. Netformx will not materially reduce the level of Subscribed Services provided for the period for which the applicable fees have been actually paid by You. Notwithstanding the foregoing, Netformx or any relevant third party licensor, may, at their sole discretion, reduce, remove or add any and all content contained in the KnowledgeBase or any other content library provided to You as part of the Subscribed Services or the Program, without providing any notice to You.
   • 3.3. Subscribed Services Renewal. At the end of the Initial Subscribed Services Term, or any subsequent Subscribed Services term, You may renew participation in Subscribed Services (to the extent Netformx still offers such Subscribed Services to its customers and in the scope of services provided by Netformx at such time) for additional annual term(s) provided that(a) You are current on all payments due to Netformx, (b) You pay Netformx, or its Affiliate (as instructed by Netformx, at its sole discretion), the renewal fee for the respective Subscribed Services term, according to Netformx’s then-current pricing and (c) the Subscribed Services term preceding such renewal was not terminated or has expired prior to the renewal.
   • 3.4. Consent To Use of Data. If Netformx provides Subscribed Services to You, You agree that Netformx may collect, use, store and transmit technical and related information that identifies Your computer (including the Internet Protocol Address), operating system, Subscribed Services’ usage and Software usage, that may be gathered periodically to facilitate the provision of the Subscribed Services (including, without limitation, provision of Updates), dynamically served content, support and other services to You, including online services. Netformx may also use this information combined with personal information for marketing purposes and to improve its products and services. Netformx may also share that data with its third party service providers in a form that does not personally identify You. IF YOU DO NOT WANT NETFORMX TO COLLECT, USE, STORE, TRANSMIT OR DISPLAY THE DATA DESCRIBED IN THIS SECTION, YOU MAY ELECT TO OPT-OUT AT ANYTIME THROUGH THE SOFTWARE. Such data and all other data provided to Netformx and/or collected by Netformx in connection with Your installation and use of the Program and Subscribed Services, are collected, used, stored and transmitted in accordance with Netformx’s Privacy Statement located at https://www.netformx.com/users/agreements-and-policies/privacy-policy. To the extent that anything in this Section conflicts with the terms of Netformx’s Privacy Statement, the terms of the Privacy Statement shall prevail.
   • 3.5. Marketing. Netformx has the right to name You as a customer in marketing materials for the purpose of promoting Netformx, the Software, the Subscribed Services or any other related services or products of Netformx.
4. NETFORMX DISCOVERY™.
   • 4.1. Netformx Discovery™ is a network discovery tool that includes network assessment and reporting capabilities, as further generally described in http://www1.netformx.com/discovery.
   • 4.2. You are fully aware that by activating Netformx Discovery™ on Your or any third party’s network (the “Scanned Network”), Netformx Discovery™ may access such Scanned Network and may collect any data relating to the Scanned Network, including, without limitation, IP addresses, information regarding the Scanned Network’s devices, equipment, hardware and systems, configuration data, topology, software and application, etc. (the “Collected Data”), and may submit a report containing all such Collected Data to Cisco Discovery Services portal (the “CDS”) for analysis.
   • 4.3. You are further aware that the reports containing the Collected Data are retained by Cisco Systems, Inc. (or any of its affiliates; hereinafter “Cisco”) and not by Netformx, and You acknowledge that Netformx and/or any of its affiliates, employees, distributors, dealers or agents, shall not be liable for any use or disclosure of such reports or any related information by Cisco or any third party. You may change the general settings of the submission and to change the type of Collected Data being submitted to CDS, by checking or un-checking the applicable boxes under the field entitled “Request Details” in the dialog box entitled “Submit Network Assessment Request (Cisco Equipment)”, which will pop up prior to submission of the Collected Data to CDS.
   • 4.4. You assume sole and absolute responsibility for obtaining any and all consents, approvals, permits or otherwise, whether required under applicable law or otherwise, from the owner of the Scanned Network and the individuals and/or entities, whose information may be accessed and disclosed as a result of activating Netformx Discovery™ on a certain Scanned Network. You further confirm that You will activate Netformx Discovery™ and use its outputs in compliance with: (i) applicable law, (ii) the applicable authorizations obtained by You from the owner of the applicable Scanned Network and Collected Data, and (iii) this Agreement. Without derogating from the generality of Section ‎13 herein, You will indemnify and hold Netformx, its officers, directors, agents, subsidiaries, joint ventures and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to, or arising out of, Your failure to comply with this Section ‎4.4.
5. NETFORMX CLOUD SERVICE.
   • 5.1. Netformx may grant You access to its hosted storage solution, which is hosted by a third party providing hosting services (the “Cloud Service”) for online storage, sharing and processing of (i) files, materials, data, text, audio, video, images or other content and information submitted by You and others; and (ii) reports and other outputs generated by the Software (collectively, “Cloud Content”). You shall have the ability to upload and backup projects, access multiple project versions, and view drawings and specific reports and other Cloud Content, including Bill of Materials (BOMs). All Cloud Content stored in the Cloud Service can be viewed on a variety of mobile devices such as smartphones and tablets.
   • 5.2. To obtain access to the Cloud Service, You may be required to obtain an account with Netformx, by completing a registration form and designating a user ID and password. The provisions of Section ‎2.2(c) shall apply on such user credentials provided to you hereunder.
   • 5.3. You will:(a) be solely responsible for the nature, quality and accuracy of the Cloud Content; (b) ensure that the Cloud Content (including the storage or transmission thereof) complies with this Agreement and any and all applicable laws, and regulations; (c) promptly handle and resolve any notices and claims relating to the Cloud Content, including any notices sent to You by any person claiming that any Cloud Content violates any person’s rights, such as take-down notices pursuant to the Digital Millennium Copyright Act of 1998 (the “DMCA”) and any other notices; and (d) maintain appropriate security, protection and backup copies of the Cloud Content, which may include, Your use of additional encryption technology to protect the Cloud Content from unauthorized access. Netformx will have no liability of any kind as a result of the deletion of, correction of, destruction of, damage to, loss of or failure to store or encrypt any Cloud Content.
   • 5.4. The Cloud Service is provided from the United States. By using and accessing the Cloud Service, You understand and consent to the storage and processing of the Cloud Content and any other personal information in the United States. Netformx reserves the right to store and process personal information outside of the United States, and will use commercially reasonable efforts to provide You with at least 30 days notice of any such changes in the processing location.
   • 5.5. Netformx reserves the right, to temporarily suspend or terminate Your access to the Cloud Service at any time in its sole discretion, with or without cause, and with or without notice, without incurring liability of any kind. In addition, Netformx may add or remove functionalities or features to the Cloud Service, and may suspend or stop providing any feature or the Cloud Service altogether.
   • 5.6. Except for material that Netformx licenses to You, Netformx does not claim ownership of any Cloud Content that is transmitted, stored, or processed in your account(s) as part of the Cloud Service. Netformx also does not control, verify, or endorse the Cloud Content that You and others make available on the Cloud Service. You represent and warrant that:(a) You have all the rights in the Cloud Content necessary for You to use the Cloud Service and, (b) the storage, use or transmission of the Cloud Content does not violate any law or this Agreement.
   • 5.7. The Cloud Service is currently provided free of charge to You. However, Netformx reserves the right, at any time, to start charging for the provision of the Cloud Services. In such case, Netformx will notify You in advance of the applicable fees and payment terms for the Cloud Service, and Your access to the Cloud Service shall be subject to the payment of such fees.
   • 5.8. WHILE NETFORMX MAKES REASONABLE EFFORTS TO ENSURE THAT THE CLOUD CONTENT SUBMITTED BY YOU TO THE CLOUD SERVICE WILL BE SECURE, NETFORMX DOES NOT GUARANTEE THAT THE CLOUD SERVICE WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, “WORMS”, “TROJAN HORSES” OR OTHER HARMFUL COMPONENTS, OR FROM INTERFERENCE, HACKING OR OTHER SECURITY INTRUSIONS. YOU SHOULD BE SURE TO BACK UP YOUR OWN SYSTEM PERIODICALLY TO ENSURE THAT ALL CLOUD CONTENT IS AVAILABLE TO YOU IN THE EVENT OF ANY LOSS OR DAMAGE.
   • 5.9. NETFORMX PROVIDES THE CLOUD SERVICE “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE”. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NETFORMX MAKES NO (AND SPECIFICALLY DISCLAIMS ALL) REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT THE CLOUD SERVICE WILL BE AVAILABLE AT ALL TIMES, UNINTERRUPTED, ERROR-FREE OR FREE OF HARMFUL COMPONENTS, OR ANY IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ANY WARRANTY ARISING OUT OF ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. YOU EXPRESSLY AGREE THAT YOUR USE OF THIS CLOUD SERVICE IS AT YOUR SOLE RISK.
   • 5.10. Please note that the Cloud Service is currently in its BETA version and undergoing BETA testing. You understand and agree that such Cloud Service may still contain software bugs, suffer disruptions and not operate as intended or designated. Your use of the Cloud Service at this stage signifies Your understanding of, and agreement to, participate in the Cloud Service BETA testing.
   • 5.11. Netformx does not tolerate Cloud Content that appears to infringe any copyright or other intellectual property rights or otherwise violates this Agreement and will respond to notices of alleged copyright infringement that comply with the DMCA and are properly provided to Netformx. Netformx does not pre-screen Cloud Content, however, Netformx shall have the right to remove Cloud Content that it becomes aware of and determines to be harmful, offensive or otherwise in violation of the Agreement and to terminate repeat infringers, all as determined in Netformx Terms and Conditions located at: https://www.netformx.com/users/agreements-and-policies/terms-of-use.
6. INTELLECTUAL PROPERTY RIGHTS.
   The foregoing license pursuant to Section ‎2 gives You a limited license to use the Program. You acknowledge and agree that all right, title and interest, including, without limitation, all copyrights, trademarks, trade names, logos and service marks, trade secrets and know how patents, licenses, designs and algorithms, utility models, and all improvements thereto, and any other intellectual property rights, in and to, the Software and the user documentation (including but not limited to any images, photographs, animations, video, audio, music, text, and “applets” incorporated into the Program) and any copies of the Program are the property of Netformx (or of its third party licensors). All rights not specifically granted to You under this Agreement, including, without limitations, all copyrights, trademarks, trade names, logos and service marks, trade secrets and know how patents, licenses, designs and algorithms, utility models, and all improvements thereto, and any other intellectual property rights are reserved by Netformx and its licensors.
7. FUTURE UPDATES.
   You agree that You have not relied on the future availability of any software or of any Updates, other than as licensed hereunder. It is clarified, that the limited warranty pursuant to Section ‎12 herein shall apply ONLY if You downloaded and installed the relevant Updates that were available to You. It is further clarified that nothing herein shall oblige Netformx to send You any Updates nor to produce any such Updates.
8. EVALUATION OF PROGRAMS.
   Netformx may, at its option, grant You licenses of certain Programs and/or services on a temporary basis for purposes of evaluation (an “Evaluation Program”) for an agreed upon period of time at no cost to You. Netformx may terminate the Evaluation Program at any time, for any reason or for no reason, by providing a notice to You, and You agree You shall return or destroy all Programs and other materials subject to the evaluation at the completion of the evaluation period unless You choose to purchase such Program(s) and/or Services pursuant to their respective license agreement. Notwithstanding anything in this Agreement to the contrary, Sections ‎3, ‎9 through ‎10 and ‎12.1 through ‎12.6, hereto shall not apply to Evaluation Program. An Evaluation Program shall be governed by a specific agreement by Netformx and you (if any).
9. PAYMENT TERMS.
   • 9.1. Payment Terms. Unless explicitly set forth in this Agreement, all fees and other amounts due under this Agreement are non-cancelable and non-refundable. Unless otherwise agreed to by the parties in writing, You shall pay all fees or amounts within 30 days of the date of the invoice. A late fee shall be charged on any overdue amounts and any other fees and expenses not paid as provided under this Agreement at the rate of one and one percent (1%) per month, or the highest rate allowable under applicable law, whichever is less, commencing with the date payment was due.
   • 9.2. Taxes. The fees and all other amounts due as specified in this Agreement are net amounts to be received by Netformx, exclusive of all taxes, duties, and assessments, including without limitation all sales, property, import duty, withholding, VAT, excise, ad valorem, use taxes and other taxes based on the Program licenses granted or Subscribed Services provided under this Agreement (collectively, the “Taxes”), and are not subject to offset or reduction because of any Taxes incurred by You or otherwise due as a result of this Agreement. You shall be responsible for and shall pay directly, any and all Taxes relating to the performance of this Agreement, provided that this Section ‎9.2 shall not apply to taxes based solely on Netformx’ income.
10. TERM AND TERMINATION.
    • 10.1. Program License Term. Each license for the Program granted under this Agreement shall commence on the License Delivery Date and shall remain in effect unless such license is terminated pursuant to Section ‎10.3 below.
    • 10.2. Term of Subscribed Services. The term of the Subscribed Services shall commence on the License Delivery Date and shall remain in effect in accordance with Section ‎3 above, unless terminated earlier in accordance with Section 10.3 below.
    • 10.3. Termination for Material Breach. Netformx may terminate this Agreement upon written notice if You materially breach this Agreement and fail to cure such breach within thirty (30) days following delivery of written notice by Netformx specifying the breach. Termination of this Agreement shall not result in the termination of any fully paid Program, which You shall have a continued right to use. Notwithstanding the foregoing, Netformx may terminate this Agreement, including a fully-paid Program in the event that You breached (i) any provision of Sections ‎2 and ‎6 above; or (ii) any of Netformx’s intellectual property rights. No termination under this Section 10 shall relieve You of Your obligation to pay all fees and payments that have accrued or are otherwise owed by You under any order.
    • 10.4. Notwithstanding the foregoing, Netformx may immediately terminate this Agreement and related Subscribed Services and Programs (i) on the institution by or against You of insolvency, receivership or bankruptcy proceedings, which have not been cancelled within forty five (45) days following such institution; (ii) on You making an assignment for the benefit of creditors, or (c) on Your insolvency or ceasing to do business, except in case of an internal reorganization.
11. VERIFICATION.
    In order to protect the Program from unauthorized use and in order to confirm Your compliance with the license grant and its restrictions as set forth in this Agreement, (i) the Software contains validation procedures which may transmit identifying information to Netformx, and (ii) upon thirty (30) days written notice and no more than once per year, Netformx may audit Your use of the Programs at Netformx’s expense. You agree to cooperate with such audit and to provide reasonable assistance and access to information necessary to conduct the audit, and that Netformx shall not be responsible for expenses You may incur in the course of cooperating with such audit. In case that the either the verification procedures or the audit reveals that You have underpaid fees to Netformx, it will invoice You and You agree to pay within thirty (30) days of delivery of such invoice any fees, as detailed in such invoice. If You do not pay, Netformx may, in its sole discretion, without prejudice of its right to collect the full payment of the applicable fees and any other remedies pursuant to applicable law, forthwith terminate your Program licenses and/or Subscribed Services (as applicable), and You will not have any claim and/or demand in connection with such termination.
12. LIMITED WARRANTY.
    • 12.1. Software Warranty. Netformx warrants for sixty (60) days from the License Delivery Date (the “Warranty Period”), that the Software will perform substantially in accordance with the associated documentation.
    • 12.2. Media Warranty. Netformx warrants for the Warranty Period, that media upon which Netformx delivers Programs to You (if at all) will be free of defects in materials and workmanship under normal use consistent with the documentations.
    • 12.3. Scope of Warranty. Netformx shall have no obligation with respect to Software and/or media, if any of their failure to meet this warranty results from(a) not being properly installed, used, updated, or maintained; (b) modification by You; or (c) use or combination with products not validated in writing by Netformx. NO WARRANTY IS EITHER EXPRESS OR IMPLIED WITH RESPECT TO THE USE OF THE ASSOCIATED DOCUMENTATION.
    • 12.4. Services Warranty. Netformx warrants for the term of performance of Subscribed Services by Netformx pursuant to this Agreement that such Subscribed Services shall be performed in a manner consistent with the generally accepted industry standards, in a professional and workmanlike manner, and in accordance with this Agreement and the Subscribed Services Policy.
    • 12.5. Anti-Virus Warranty. Netformx warrants that to the best of its knowledge, after employing reasonable technical means to detect computer viruses, the Software delivered by Netformx to You does not contain any harmful virus or computer software code, routines or devices (other than as set forth in the documentation, or this Agreement) designed to disable, damage, impair, erase, or deactivate the Software or other software or data. Netformx does not warrant that use of the Program will be completely accurate, error-free, or uninterrupted.
    • 12.6. Remedies. For any breach of the foregoing Warranty, Netformx’s sole obligation, at its sole option and expense, shall be to (a) substantially correct the errors causing the breach, or (b) repair or replace the Software or re-perform the Subscribed Services (as applicable), or (c) if Netformx is unable to do so in a commercially reasonable manner (as determined by Netformx), to refund (i) a portion of the applicable paid fees paid by You for such defective Program(s), pro rata, based upon a thirty six (36) month use period, in exchange for, and upon their return to Netformx, provided, however that the refund amount shall not, in any case exceed an amount equal to twelve (12) months use period, with respect to the Software Warranty; and (ii) the prorated portion of the fees for unused Subscribed Services (if applicable) paid for the Subscribed Services, along with all materials provided hereunder, with respect to the Services Warranty related to Subscribed Services. Netformx will have no responsibility to replace or refund the fees of any medium damaged by accident, abuse or misapplication. You agree that the foregoing constitutes Your sole and exclusive remedy and Netformx’s entire liability for breach by Netformx of any warranties made under this Agreement. Following the expiration of the Warranty Period, You understand and acknowledge that the cost of replacement or repair of the Software will be at the market rate and labor will be billable by Netformx at its then prevailing rate. Repair or replacement of the Software does not extend the Warranty Period.
    • 12.7. Content. The Program may include reference to products, services, trademarks or hyperlinks of Your (to the extent provided) or any other third parties. No such reference(s) shall constitute or imply an endorsement or recommendation by Netformx. Netformx makes no guarantees concerning the accuracy, reliability, currency, or quality of the content, including third party content, displayed through or while using the Program and/or the Subscribed Services. NETFORMX SHALL NOT BE LIABLE FOR THE PERFORMANCE OF SOFTWARE AND HARDWARE OWNED BY ANY THIRD PARTIES OR FOR SERVICES AND INFORMATION PROVIDED, MAINTAINED OR CONTROLLED BY THIRD PARTIES, INCLUDING BUT NOT LIMITED TO COMPILATIONS OF SUCH INFORMATION IN THE PROGRAM, SUBSCRIBED SERVICES OR KNOWLEDGEBASE.
    • 12.8. Disclaimers. EXCEPT FOR THE WARRANTIES SET FORTH ABOVE, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PROGRAM IS LICENSED “AS IS” AND NETFORMX (AND ITS THIRD PARTY LICENSORS) DISCLAIM ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY NETFORMX, ITS EMPLOYEES, DISTRIBUTORS, DEALERS OR AGENTS SHALL INCREASE THE SCOPE OF THE ABOVE WARRANTIES OR CREATE ANY NEW WARRANTIES.
13. LIMITATION OF LIABILITY; INDEMNITY.
    • 13.1. Your use of the Program, including without limitation, use of any outputs of the Program, is at Your sole discretion and risk and You assume any and all liability in connection with such use. You will indemnify and hold Netformx, its officers, directors, agents, subsidiaries, joint ventures and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of: (i) Your breach of this Agreement, (ii) Your violation of any law or the rights of a third party, including, without limitation, privacy rights and intellectual property rights; or (iii) Your use of the Program and/or its outputs, including, without limitation, the Collected Data and any reports or other materials containing the Collected Data.
    • 13.2 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY OR ITS EMPLOYEES, DISTRIBUTORS, DEALERS OR AGENTS BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES, EMPLOYEES, DISTRIBUTORS, DEALERS OR AGENTS PARTY FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING FROM THIS AGREEMENT, THE USE OF THE PROGRAM, WHETHER RESULTING FROM TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, PRODUCT LIABILITY, OR OTHER FORM OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. NETFORMX ITS AFFILIATES, AND THEIR RESPECTIVE EMPLOYEES’, DISTRIBUTORS’, DEALERS’ AND AGENTS’ AGGREGATE TOTAL LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE LICENSE FEE PAID TO NETFORMX UNDER THIS AGREEMENT, IN THE TWELVE (12) MONTHS PERIOD IMMEDIATELY PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. You expressly assume all responsibility for any damages, lost data, lost profits and other consequential damages that may result in any way out of this Agreement, including without limitation, use of the Program. You expressly agree that the fees payable to Netformx hereunder have been negotiated and agreed to by Netformx based in part upon the foregoing limitation of liability.
14. NOTICE TO U.S. GOVERNMENT END USERS.
    • 14.1. For contracts with agencies of the Department of Defense, the Government’s rights in: (1) commercial computer software and commercial computer software documentation shall be governed, pursuant to 48 C.F.R. 227.7201 through 227.7202-4, by Netformx’s standard commercial license(s) for the respective product(s); (2) software and software documentation other than commercial computer software and commercial computer software documentation shall be governed by 48 C.F.R. 252.227-7014; (3) technical data for commercial items other than software or software documentation shall be governed by 48 C.F.R. 252.227-7015(b); and (4) technical data for non-commercial items other than software or software documentation shall be governed by 48 C.F.R. 252.227-7013.
    • 14.2. For contracts with U.S. Government agencies other than the Department of Defense agencies, the Government’s rights in: (1) commercial computer software and commercial computer software documentation shall be governed, pursuant to 48 C.F.R. 2.101 and 12.212, by Netformx’s standard commercial license(s) for the respective product(s); (2) software and software documentation other than commercial computer software and commercial computer software documentation shall be governed by 48 C.F.R. 52.227-14, Alternative III; and (3) technical data other than software and software documentation shall be governed by 48 C.F.R. 52.227-14 including, where applicable Alternatives I or II.
15. MISCELLANEOUS.
    • 15.1. Governing Law and Exclusive Jurisdiction. This Agreement shall be governed and construed in accordance with the laws of the State of California without regard to conflict of laws principles. You agree to the exclusive jurisdiction of the courts located in Santa Clara County, California, USA for all disputes relating to or arising out of this Agreement, including issues relating to the Program and/or the Subscribed Services.
    • 15.2. No Assignments. You may not sell, lease, assign, or otherwise transfer, in whole or in part, your rights under this Agreement without the express written consent of Netformx, provided, however, that such consent shall not be unreasonably withheld if you assign this Agreement to an Affiliate in connection with a merger, acquisition, or sale of all or substantially all of our assets. Netformx may assign this Agreement, without obtaining Your approval, to any of its Affiliates or to any acquirer of all or substantially all of such its share capital, business assets whether by merger, acquisition or otherwise. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.
    • 15.3. Entire Agreement. This Agreement constitutes the final and complete understanding between the parties, and replaces and supersedes all previous oral or written agreements, understandings, or arrangements, including, without limitation, previous versions of End User License Agreement(s) for licenses of Programs that were previously licensed by You, between the parties with respect to the subject matter contained in this Agreement. In case of contradiction between the provisions of this Agreement and any other written agreement between the parties hereto, the provisions of this Agreement shall prevail, unless explicitly stated otherwise in a written agreement signed by both parties.
    • 15.4. Modifications. Netformx may amend this Agreement at any time by providing You a reasonable notice, including without limitation by posting an amended version of this Agreement: (i) on any of the Software screens and/or through the Subscribed Services updater, to which You will have access in case You maintain a valid subscription to the Subscribed Services; and (ii) on its website at https://www.netformx.com/users/agreements-and-policies/license-agreement , in such case, You shall have the sole responsibility to review such amended version of Agreement. The amended terms and conditions of this Agreement shall bind You upon their effective date.
    • 15.5. Unenforceable Terms shall not Affect the Enforceability of the Remaining Terms. Should any term of this Agreement be declared void or unenforceable by any court of competent jurisdiction, such declaration shall have no effect on the remaining terms hereof.
    • 15.6. Export Restrictions. You agree to comply with all applicable foreign, federal, state and local laws and regulations governing Your use of the Program and the Subscribed Service. Without limiting the foregoing, in the event that this Agreement permits export of the Program and/or Subscribed Service outside the U.S., You shall be solely responsible for compliance with all applicable U.S. export laws, rules, and regulations. The Program and the Subscribed Service are subject to the U.S. Export Administration Regulations and may be subject to other applicable laws, and may not be exported or re-exported to certain countries (As of the date of last version of this Agreement, Cuba, Iran, Libya, North Korea, Sudan and Syria) or to persons or entities prohibited from receiving U.S. exports (including those (a) on the Bureau of Industry and Security Denied Parties List or Entity List, (b) on the Office of Foreign Assets Control list of Specially Designated Nationals and Blocked Persons, and (c) involved with missile technology or nuclear, chemical or biological weapons).
    • 15.7. Failure to Enforce Does Not Constitute Waiver. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
    • 15.8. Third Parties. The Program contains third party components. The restrictive terms as well as the liability limitations set forth herein that are applicable to the Program also apply to all third party’s components. The third parties do not provide any warranties to You hereunder. The third parties are beneficiaries of the terms of this Agreement, and You consent to the third parties enforcing their rights arising under this Agreement directly against You.
    • 15.9. Other Licenses. The Program contains certain third party source codes, which are subject to such restrictive terms and conditions of use as are stipulated in their applicable license agreements, all as further detailed in (“Third Party Source Code List”). You shall have the sole responsibility to review the Third Party Source Code List, which may be updated by Netformx from time to time, at its sole discretion.The following Third Party Source Codes are included in the Program: “DotNetZip” class library which is subject to a public license available at https://dotnetzip.codeplex.com/license.
    • 15.10. Finance Contracts. If You have financed Your acquisition of the License granted under this Agreement and/or Your right to receive services from Netformx in connection with the Program pursuant to a contract (“Finance Contract”) with a third party (“Finance Company”), You agree that a payment event of default under such Finance Contract constitutes a default under this Agreement and that if such default is not cured within the cure period set forth in such Finance Contract, we may suspend and or terminate, in part or in whole, Your license and Your right to receive such Subscribed Services. You further agree that we may, and hereby do, assign such right to such Finance Company.
    • 15.11. Survival. Any rights or remedies of Netformx respecting payment of money by You and the provisions of Sections ‎1, ‎4.4, ‎5, 12.7, ‎12.8, ‎13 and ‎15 and in case that the license for the Program was not terminated, Section 2 (in addition to the other Sections specified in this Section), shall survive the termination of this Agreement. Notwithstanding the foregoing, in case of failure by You to pay and due fees, Section 9 shall survive until the full payment of such due fees, without prejudice to any other right to which Netformx is entitled in such circumstances.