DEFINITIONS:
- a. “Acceptance” means you have indicated that you acknowledge and agree to the terms and conditions of this Agreement by clicking “Accept” or such other similar prompt or tab.
- b. “Agreement” means this EULA.
- c. “End User Support” means commercially reasonable assistance to end users for technical issues relating to the operation of the Software and questions relating to the Software.
- d. “EULA” means this Opengear End User License Agreement.
- e. “Maintenance” means bug fixes, updates, and patches to the Software.
- f. “Nodes” means any endpoint that connects to Lighthouse, including Nodes licensed or provided by Opengear or its suppliers. Nodes may be a hardware appliance from Opengear or a third party hardware appliance, such as, for example, a Cisco 2900.
- g. “Opengear” means Opengear, Inc.
- h. “Software” means software, products, Nodes, and/or equipment offered and/or provided by Opengear to its prospective and current customers as an installed and/or downloaded licensed software, and/or licensed infrastructure related thereto. The Software includes any media, printed materials, and “online” or electronic documentation, data, or information provided by Opengear associated therewith or resulting from the use thereof. The Software also includes Opengear proprietary software and/or proprietary software licensed to Opengear by its licensors.
- i. “License” means the right, subject to the terms of this Agreement, to have (i) the Software installed, downloaded, accessed, used, or copied on your systems; and (ii) use and access of the Software by you and your authorized employees during the License period.
This EULA is a legal agreement between you (either an individual or a single entity) and Opengear for your License to the Software subject to the terms set forth in this Agreement. You are required to Accept this EULA as a condition of the License. If you do not Accept this EULA, you may not download, copy, access, install, or otherwise use the Software. Products, materials, data, information, services, or software with separate end user license agreements that may be provided along with the Software are licensed to you under the terms of those separate end user license agreements.
LICENSE GRANT
Subject to the terms and conditions of this EULA, Opengear grants you a nonexclusive and non-transferable right, without the right to sublicense, to install and use the Software on a single physical or virtual CPU, and to install and use the Software on a second physical or virtual CPU to serve as an idle stand-by, provided that,
(1) you may not rent, lease, sell, sublicense, or lend the Software to a third party or an unauthorized user;
(2) you may not reverse engineer, decompile, disassemble or modify the Software, except and only to the extent that such activity is expressly required by applicable law notwithstanding this limitation;
(3) you may not transfer rights granted to you under this EULA without the express written consent of Opengear as determined in its sole discretion, provided that you transfer at the same time all copies of the Software to the same approved transferee or destroy such materials not transferred, and the transferee agrees to this EULA;
(4) if you have not obtained and installed a Software License Key from an Opengear authorized reseller or Opengear, you are permitted to use the Software solely for evaluation or demonstration purposes however your right to use the Software shall terminate thirty (30) days after your installation of the Software, at which time you must return or destroy the Software; and
(5) if you have installed a Software License Key you may not use the Software to concurrently manage more than the number of Nodes specified in the related customer purchase order.
Your License is contingent upon your payment in full of all applicable fees for the License and use of the Software or components thereof to Opengear’s authorized reseller. To receive and/or activate your Software License Key, you must pay your License fees to Opengear or such reseller.
In connection with the License to the Software and subject to your payment to Opengear or its authorized reseller of the fees for such License, Opengear or its authorized reseller will provide you with End User Support. End User Support does not include assistance or support relating to issues caused by third party software, equipment, or service providers. Opengear will provide you with Maintenance services. End User Support and Maintenance is included in the applicable License fees, and contingent upon your payment to Opengear or its authorized reseller of all such applicable License fees, for the License to the Software and/or each of the components thereof, including Nodes.
No license is granted hereunder in or to any of the Software’s proprietary source code, materials, equipment, Software, or Software components. The License rights granted hereunder are the exclusive rights granted to you with respect to the Software. Without limiting the generality of the foregoing sentence, nothing in this Agreement grants you any rights or licenses to patents, copyrights, trade secrets, trademarks or any other intellectual property rights or other rights with respect to the Software. You may make a reasonable number of copies of the electronic documentation accompanying the Software for each Software License you purchase, provided, however, that you must reproduce and include any and all copyright notices and any other proprietary rights notices appearing on the electronic documentation in connection with such copies. Opengear reserves all rights not expressly granted herein.
INTELLECTUAL PROPERTY RIGHTS
The Software is protected by copyright laws, international copyright treaties, and other intellectual property laws and treaties. Opengear or its applicable suppliers and licensors retain all ownership of, and intellectual property rights in (including, without limitation, copyrights) and to the Software, Software components, and all copies, improvements, modifications, and derivative works thereof, provided however, that
(1) certain components of the Software, including SDT Connector, are components licensed under the GNU General Public License Version 2, which Opengear supports. Opengear will provide source code for any of the components of the Software licensed by Opengear under the GNU General Public License upon request solely for your internal review; and
(2) the SDT Connector includes code from JSch, a pure Java implementation of SSH2 which is licensed under BSD style license. Copies of these licenses are detailed on the Opengear web site.
EXPORT RESTRICTIONS
You agree that you will not, in violation of any applicable laws or regulations of the United States or other jurisdiction, export or re-export the Software, any part thereof, or any process or service that is the direct product of, related to, or provided by Opengear in connection with, the Software.
U.S. GOVERNMENT RESTRICTED RIGHTS
The Software and related documentation are provided with Restricted Rights. Use, duplication, or disclosure by the Government is subject to restrictions set forth in subparagraph (c) (1) (ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c) (1) and (2) of the Commercial Computer Software – Restricted Rights at 48 C.F.R. 52.227-19, as applicable, or any successor regulations.
TERM AND TERMINATION
This EULA, and each price provided by Opengear or its authorized reseller for the Software, License, and related products and services, or parts thereof, is effective for one (1) year from your Acceptance of this Agreement, except as otherwise set forth herein. This Agreement and such prices shall terminate after such period unless the parties agree in writing to renew the terms and conditions of this EULA and such pricing, as may be updated or amended from time to time upon such expiration. Each unique Lighthouse VM Software License and Node has an associated active term once installed, copied, downloaded, or utilized (whichever is earliest, as applicable). Prices for Nodes or any part of the Software provided by Opengear or its authorized reseller may increase upon expiration of their particular active term in the event you want to continue your License thereto. Each Node or part of the Software Licensed or added by you will be subject to particular prices or fees therefor. Opengear reserves the right to terminate Software support and Software Maintenance if the active License term applicable thereto has expired. You agree that Opengear has the right to immediately shut down the functionality, operation, and your use and access to the Software, or any applicable part thereof, upon the expiration of the applicable License term. To the extent Opengear provides you with a renewal message or notice electronically through the Software or otherwise in writing, you must contact Opengear or its authorized reseller to discuss renewing the License should you desire to do so, provided that Opengear still reserves the right to disconnect any Software upon expiration of the applicable License. Any renewal shall be subject to the renewed terms and conditions agreed upon by the parties. You agree that Opengear or its authorized resellers may increase pricing for any Licensed Software or parts thereof in connection with any such renewal. Opengear may terminate this EULA immediately if you fail to comply with or breach any term or condition of this EULA. In such event, Opengear, at its sole discretion, may shut down the functionality or operation of, or your use and access to, the Software or, in its sole discretion, provide you with written notice of advance or immediate termination. In the event of any termination, you must destroy all copies of the Software and return, or destroy at Opengear’s written direction, any materials, products, or information provided by Opengear in connection therewith. You may also terminate this EULA at any time by destroying the Software, provided, however, that any fees paid to Opengear prior to such termination shall be non-refundable.
GOVERNING LAW AND ATTORNEY’S FEES
This EULA is governed by the laws of the State of New Jersey, USA, excluding its conflict of law rules. All disputes arising in connection with this Agreement shall be resolved in the State of New Jersey. You agree that the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded in its entirety and does not apply to this EULA. If you acquired this Software in a country outside of the United States, that country’s laws may apply. In any action or suit to enforce any right or remedy under this EULA or to interpret any provision of this EULA, the prevailing party will be entitled to recover its costs, including reasonable attorneys’ fees. ENTIRE AGREEMENT. This EULA constitutes the entire agreement between you and Opengear with respect to the Software, and supersedes all other agreements or representations, whether written or oral. The terms of this EULA can only be modified by express written consent of both parties. If any part of this EULA is held to be unenforceable as written, it will be enforced to the maximum extent allowed by applicable law, and will not affect the enforceability of any other part. Should you have any questions concerning this EULA, or if you desire to contact Opengear for any reason, please contact the Opengear representative serving your company.
THE SOFTWARE IS NOT FAULT TOLERANT. YOU HAVE INDEPENDENTLY DETERMINED HOW TO USE THE SOFTWARE, AND OPENGEAR HAS RELIED UPON YOU TO CONDUCT SUFFICIENT TESTING TO DETERMINE THAT THE SOFTWARE IS SUITABLE FOR SUCH USE.
LIMITED WARRANTY
Opengear warrants the media containing the Software for a period of ninety (90) days from the date of original purchase from Opengear or its authorized retailer. Proof of date of purchase will be required. Any updates to the Software provided by Opengear (which may be provided by Opengear at its sole discretion) shall be governed by the terms of this EULA. In the event the product fails to perform as warranted, Opengear’s sole obligation shall be, at Opengear’s discretion, to refund the purchase price paid by you for the Software on the defective media, or to replace the Software on new media. Opengear makes no warranty or representation that its Software will meet your requirements, will work in combination with any hardware or application software products provided by third parties, that the operation of the software products will be uninterrupted or error free, or that all defects in the Software will be corrected.
EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS EULA, OPENGEAR DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. OTHER THAN AS STATED HEREIN, THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. ALSO, THERE IS NO WARRANTY AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE OR AGAINST INFRINGEMENT. IF YOU HAVE RECEIVED ANY WARRANTIES REGARDING THE DEVICE OR THE SOFTWARE, THOSE WARRANTIES DO NOT ORIGINATE FROM, AND ARE NOT BINDING ON, OPENGEAR.
NO LIABILITY FOR CERTAIN DAMAGES. EXCEPT AS PROHIBITED BY LAW, OPENGEAR SHALL HAVE NO LIABILITY FOR COSTS, LOSS, DAMAGES OR LOST OPPORTUNITY OF ANY TYPE WHATSOEVER, INCLUDING BUT NOT LIMITED TO, LOST OR ANTICIPATED PROFITS, LOSS OF USE, LOSS OF DATA, OR ANY INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, WHETHER UNDER CONTRACT, TORT, WARRANTY OR OTHERWISE ARISING FROM OR IN CONNECTION WITH THIS EULA OR THE USE OR PERFORMANCE OF THE SOFTWARE. IN NO EVENT SHALL OPENGEAR BE LIABLE FOR ANY AMOUNT IN EXCESS OF THE LICENSE FEE PAID TO OPENGEAR UNDER THIS EULA. SOME STATES AND COUNTRIES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU.