END-USER SOFTWARE LICENSE AGREEMENT FOR TRIAL VERSION OF NETWORK ICE SOFTWARE
(Intrusion Countermeasure Enhancements Products)
This Network ICE End-User Software License Agreement ("EUSLA") is a legal agreement between you, either an individual or a single entity, ("Licensee") and Network ICE Corporation, a California corporation with offices at 2121 South El Camino Blvd, Suite 1100, San Mateo, California, 94403 ("Network ICE") for the Network ICE software products ("PRODUCT"). By installing, copying, or otherwise using PRODUCT, Licensee agrees to be bound by the terms of this EUSLA. If Licensee does not agree to the terms of this EUSLA, do not install or use the PRODUCT.
1. DEFINITIONS.
a. PRODUCT means all components of BlackICE Defender supplied by Network ICE including, but not limited to, computer software, online electronic documentation, HTML files, help text, and PDF files, and may include associated media or printed materials.
b. LICENSE means the licensee to use the PRODUCT on a single computer running one of the following operating systems, Windows 95, Windows 98, or Windows NT Workstation as set forth in Section 2(b) below.
c. EFFECTIVE DATE means the date that the PRODUCT was delivered to Licensee, where the delivery consists of a CD-ROM containing the PRODUCT.
d. TERM means thirty (30) days after Licensee's installation of the PRODUCT.
2. RIGHTS AND LIMITATIONS.
a. Subject to the terms and condition of this EUSLA, Network ICE grants Licensee a non-exclusive, non-assignable license to use the PRODUCT from the EFFECTIVE DATE and for the duration of the TERM.
b. The PRODUCT may only be installed on computers that are used solely for Licensee's own personal or internal business. This EUSLA does not grant any rights to use or install the PRODUCT on computers used primarily to service or to benefit persons not having either an employment or contractual business relationship with Licensee, such as a web server servicing the public.
c. Notwithstanding anything else contained in this EUSLA, Network ICE retains (i) all title to, and, except as expressly and unambiguously licensed herein, all rights to the PRODUCT, and all related documentation and materials, (ii) all of their service marks, trademarks, trade names or any other designations, and (iii) all copyrights, patent rights, trade secret rights and other proprietary rights in the PRODUCT.
d. Licensee does not have any rights to use the PRODUCT on any operating system other than those explicitly sited in Section 1(b) and Section 2(a).
e. Network ICE shall have no obligation to provide any support for the PRODUCT.
f. Licensee acknowledges and agrees that the PRODUCT is a free trial version which will remain operable only for a period of thirty (30) days from the date of installation. Licensee further acknowledges and agrees that if Licensee wishes to continue using the PRODUCT after the TERM, Licensee will need to purchase a license for the use of the PRODUCT from Network ICE.
3. LICENSEE'S OBLIGATIONS.
Except as expressly and unambiguously provided herein and as conditions of Licensee's LICENSE hereunder, Licensee represents, warrants and agrees:
a. Not to reverse assemble, de-compile, or otherwise attempt to derive source code (or the underlying ideas, algorithms, structure or organization) from the PRODUCT or from any other information, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
b. To keep all copies of the PRODUCT in the possession of Licensee.
c. Not to sell, give, lend, give access to, or otherwise transfer the PRODUCT, or copies of the PRODUCT to anyone that is not an employee or consultant of Licensee, or to anyone that is not bound to all of the terms and conditions of this EUSLA.
d. Not to use the PRODUCT for timesharing, outsourcing, hosting or service bureau purposes or otherwise allow others, or third parties benefit from the use of the PRODUCT.
e. Not to remove from any copies of the PRODUCT any product identification, copyright or other notices.
f. Not to modify, incorporate into or with other software, or create a derivative work of any part of the PRODUCT.
g. Not to disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the PRODUCT.
4. Termination.
a. Without prejudice to any other rights, Network ICE may immediately terminate the LICENSE if Licensee fails to comply with any of the terms and conditions of this EUSLA. In such an event, Licensee must destroy all copies of the PRODUCT and all of its component parts.
b. All of the terms and conditions of this EUSLA shall survive termination with the exception of the LICENSE as defined in Sections 1(b) and Sections 2(a) and 2(d). Termination is not an exclusive remedy and all other remedies will be available to Network ICE whether or not the LICENSE is terminated.
5. GOVERNING LAW.
This EUSLA shall be deemed to have been made in, and shall be construed pursuant to the laws of the State of California and the United States, without regard to conflicts of laws provisions thereof and without regard to the United Nations Convention on Contracts for the International Sale of Goods. The sole jurisdiction and venue for any dispute regarding the terms of this EUSLA or any action relating to the subject matter hereof shall be the Superior Court of San Mateo County, California and the U.S. District Court for the District of California. The prevailing party in any action to enforce this EUSLA shall be entitled to recover reasonable costs and expenses, including, without limitation, reasonable attorneys' fees.
6. Export Limitations.
Licensee shall comply with all applicable export laws, restrictions, and regulations of any United States or foreign agency or authority. Licensee agree not to export or re-export, or allow the export or re-export of any product, technology, or information Licensee obtains or learns under this EUSLA (or any direct product thereof) from the country in which Licensee has installed and is using the PRODUCT in violation of any such laws, restrictions, or regulations. The PRODUCT is a "commercial item," "commercial computer software," and/or "commercial computer software documentation" as defined under U.S. law in FAR section 2.101, DFAR section 252.227-7014(a)(1) and DFAR section 252.227-7014(a)(1), or otherwise. Consistent with DFAR section 227.7202 and FAR Section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the PRODUCT by the U.S. government shall be governed solely by the terms of this EUSLA and shall be prohibited except to the extent expressly permitted in this EUSLA.
7. WARRANTY AND DISCLAIMER.
THE PRODUCT AND NETWORK ICE PROPRIETARY MATERIALS ARE PROVIDED TO LICENSEE AS A FREE TRIAL VERSION AND THEREFORE ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. FURTHER, NETWORK ICE DOES NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS THAT THE SOFTWARE WILL BE FREE FROM BUGS, THAT ITS USE WILL BE UNINTERRUPTED, OR REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE PRODUCT OR OTHER NETWORK ICE PROPRIETARY MATERIALS IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE. LICENSEE UNDERSTANDS THAT NETWORK ICE IS NOT RESPONSIBLE, AND WILL HAVE NO LIABILITY, FOR HARDWARE, SOFTWARE OR OTHER ITEMS OR ANY SERVICES PROVIDED BY ANY PERSON OTHER THAN NETWORK ICE.
8. NO LIABILITY FOR CONSEQUENTIAL DAMAGES.
To the maximum extent permitted by applicable law, in no event shall Network ICE or its suppliers, distributors and resellers be liable for any special, incidental, indirect, or consequential damages whatsoever (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or any other pecuniary loss) arising out of the use of or inability to use the PRODUCT, even if Network ICE has been advised of the possibility of such damages. Because some states and jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to Licensee.
9. CUSTOMER REMEDIES.
Network ICE's entire liability and Licensee's exclusive remedy under this Agreement shall not exceed One Hundred Dollars ($100).
