OctoInsight Inc. End User License Agreement

This End-User License Agreement (“EULA”) is a legal agreement between you – as an individual, a single corporation or other single legal entity – (the “Licensee”) and OctoInsight Inc. (“OctoInsight” or “OI”) that describes your rights under license from OI to use the software and related services (the “software product”) as defined below in this agreement. This license is granted on the terms stated below and on condition the Licensee controls the system(s) on which the software is installed.

IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU MAY NOT INSTALL, COPY, DOWNLOAD, ACCESS OR OTHERWISE USE THE SOFTWARE PRODUCT. FURTHER, ANY INSTALLATION, COPYING, DOWNLOADING, ACCESS OR OTHER USE OR ATTEMPTED USE OF THE SOFTWARE PRODUCT BY YOU WILL BE DEEMED AS AN “ACT OF ACCEPTANCE” CONSTITUTING YOUR AGREEMENT TO BE BOUND BY THE TERMS OF THIS EULA.

Last Updated: March 6, 2017


Definition of Software Product

The software product that accompanies and is covered by this EULA includes computer software and its agent components (e.g., “OctoInsight Agent”) and may include associated media, printed materials, “online” or electronic documentation, and Internet-based services. The software product also includes any software updates, add-on components, web services and/or supplements not subject to a separate EULA or terms of use that OI may provide or make available to you after the date you obtain your initial copy of the software product.


Software Product License

The software product is licensed under certain marks or names (e.g. “OctoInsight”) dated 2016 or other year(s) of publication as shown in the software product. The software product is protected by intellectual property laws and treaties. The software product is licensed in object code form only and is the confidential and proprietary information of OI. The software product is made available for use only in accordance with the terms of this EULA. The software product is licensed, not sold.


Term of EULA

Except and until such time as this EULA may be modified or superseded by written agreement between you and OI, this EULA will remain in full force and effect for you and all others enabled through or by you to use the software product in accordance with this EULA.


EULA Updates and Changes

This webpage reflects the current terms of the EULA.


GRANT OF LICENSE

Subject to the limits and restrictions set forth in this EULA, OI grants you the following general rights to install and use the software product, provided that you comply with all terms and conditions of this EULA:

1. General License Grant

  1. OI grants to you as an individual, a personal, nonexclusive license to use the software for the purposes intended, provided that you are the only individual using the software.
  2. If you are an entity, OI grants to you a personal, nonexclusive license to use copies of the software up to the maximum number of copies, units and/or users set by the terms of your agreement with OI, provided that for each individual using the software within your organization, you have acquired a separate and valid license for each such individual.
  3. Willful evasion of maximum limit(s) on the number of copies, units and/or users of the software product set by the terms of your agreement with OI, will, without prior notice from OI, result in automatic and immediate termination of all of your licenses and render you liable for payment of special and other compensatory damages to OI for all unlicensed uses and/or users of the software product.

2. Documentation

You may make and use copies of any printed documentation, provided that such copies shall be used only for personal or organizational purposes and not republished or distributed (either in hard copy or electronic form) beyond your premises. If the software product contains documentation that is provided only in electronic form, you may print one copy of such electronic documentation.

3. Storage/Network Use/Backup

  1. You may also store or install a copy of the software on a storage device, such as a network server, used only to install or run the software on computers used by a licensed end user in accordance with Section 1.1. A single license for the software may not be shared or used concurrently by multiple end users.
  2. Backup Copy: After installation of one copy of the software product pursuant to this EULA, you may keep the original media on which the Software Product was provided by OI (or downloaded). A single (1) copy of the software product may be kept solely for secure backup or archival purposes. The location of the backup or archival copy must be promptly disclosed to OI at any time on written request. Except as expressly provided in this EULA, you may not otherwise make copies of the software product including accompanying printed materials.

4. License Distribution/Use/User Limits

  1. For purposes of determining whether maximum limit(s) on the number of copies, units and/or users of the software product set by the terms of your agreement with OI have been met or exceeded, license units are consumed by each copy installed or by each instance of creation of a software user profile, including files for each additional user monitored on a shared device or computer. Every specific user (who must be an individual named user however identified) for whom a copy of the software is installed will be counted as a license unit for the purpose of calculating your license usage/deployment limits as established under your agreement with OI.
  2. Any use of license units in excess of license usage limits established by your agreement with OI automatically incurs liability to pay the corresponding additional license fees at the rates then in effect, without prejudice to any other OI rights or entitlements to seek awards, damages, compensation or relief for unlicensed use of the software product.

5. Time Limits

Depending on the terms of your agreement with OI, you may be required to pay fees for renewal time-based or service level limited license keys. For example, if you have purchased a three-year license subscription, the license key will expire after 3 years have elapsed and from that time on some or all of the software product functions in the copies you have installed may, in OI’s discretion, cease to operate or be restricted until such time as a new license key is supplied. OI is under no obligation to issue, renew or extend the limits of any license key if payment of the relevant fees has not been received.

6. Software License Transfer

You agree that once a license of the software is allocated to a named individual end user, that license may not be transferred to another named end user within the organization unless one of the following criteria are met:

  • every thirty (30) calendar day period beginning on the date of the first issuance of the licenses, up to 10% of the total number of purchased licenses may be transferred to other named end users; or
  • the domain (and therefore the security identifier or SID) of each named individual end user is changed permanently.

The software product and purchased licenses may not be transferred to another organization under any conditions.

7. Termination

Without prejudice to any other rights, OI may terminate this EULA if you fail to comply with the terms and conditions of this EULA (“breach”). If your breach is not capable of remedy, such termination notice may take immediate effect, otherwise, you will have fourteen (14) days in which to remedy the breach. In the event of such notice, you must destroy all copies of the software product and all of its component parts in your possession or control, and you must provide OI with written confirmation of compliance with this term signed by your duly authorized representative.


OTHER RIGHTS AND LIMITATIONS

8. Reservation of Rights

OI reserves all rights not expressly granted to you in this EULA. The software product is protected by copyright and other intellectual property laws and treaties. OI or its suppliers own the title, copyright, and other intellectual property rights in the software product. The software product is licensed, not sold.

9. Verification of Compliance

OI reserves the right to make reasonable requests for verification of your compliance with your obligations under this EULA. You agree that failure to respond to such a request will entitle OI to enter your business premises and to obtain copies of all records and information reasonably required to verify your compliance with your obligations under this EULA.

10. Limitations on Reverse Engineering/Decompilation/Disassembly

You agree not to reverse engineer, decompile, or disassemble the Software Product, except and only to the extent that such activity is expressly permitted by law notwithstanding this limitation.

11. Separation of Component Parts

The software product is licensed as a single product. Its component parts may not be separated for use with other service providers or for resale in any way unless expressly permitted by OI.

12. Patents and Trademarks

This EULA does not grant You any rights in connection with any patents, trademarks or service marks of OI, and you agree to respect OI’s rights at all times.

13. No Rental, Leasing or Commercial Hosting

You may not rent, lease, lend or provide commercial hosting services to third parties with the software product.

14. Use of Data

  1. Product Performance Data: You agree that OI may collect and use technical information gathered as part of the product support services provided to you, if any, related to the software product. OI may use this information solely to improve our products or to provide customized services or technologies to you and will not disclose this information in a form that personally identifies you.
  2. User Data: The software product enables the Licensee to identify and capture data (“User Data”) relating to individual users’ computers and devices. The Licensee hereby represents that it has secured any permission that may be required under applicable law to capture such user data. If the Licensee now or in the future intends to collect user data captured through the software product for uploading and storage in its servers, the Licensee hereby represents that it is authorized to do so. The Licensee further agrees to exert all reasonable efforts in its power to ensure that no misleading, abusive or unlawful use is made of the software product and the user data that it captures.
  3. Disclaimer: OI DISCLAIMS ALL LOSS AND DAMAGE AND LEGAL LIABILITY WHATSOEVER AND HOWSOEVER ARISING FROM THE WAY YOU USE THE SOFTWARE PRODUCT, THE SOFTWARE AGENT AND THE USER DATA.

15. Additional Software/Services

This EULA applies to updates, supplements, add-on components, or Internet-based services components, of the software product that OI may provide to you or make available to you after the date you obtain your initial copy of the software product, unless we provide other terms along with the update, supplement, add-on component, or Internet-based services component. OI reserves the right to discontinue any Internet-based services provided to you or made available to you through the use of the software product.

16. Upgrades/Downgrades

  1. Upgrades: To use software identified as an upgrade, you must first be licensed for the software product identified by OI as eligible for the upgrade. After upgrading, you may no longer use the software product that formed the basis for your upgrade eligibility.
  2. Downgrades: Instead of installing and using the software product, you may install and use one copy of an earlier version of the software product, provided that you completely remove such an earlier version and install the original software product within a reasonable time. Your use of such an earlier version shall be governed by this EULA, and your rights to use such an earlier version shall terminate when you install the software product.

17. Intellectual Property Rights

All title and intellectual property rights in and to the software product (including but not limited to any images, photographs, animations, video, audio, music, file formats and text incorporated into the software product), the accompanying printed materials, and any copies of the software product are owned by OI. All title and intellectual property rights in and to the content that is not contained in the software product, but may be accessed through use of the software product, is the property of the respective content owners and may be protected by applicable copyright or other intellectual property laws and treaties. This EULA grants you no rights to use such content.


LIMITED WARRANTY

18. Warranty

  1. OI warrants that the software product will perform substantially in accordance with the performance capabilities described in accompanying documentation materials for a period of ninety (90) days from the date of receipt.
  2. Limited Warranty: AS TO ANY DEFECTS DISCOVERED AFTER THE NINETY (90) DAY PERIOD, THERE IS NO WARRANTY OR CONDITION OF ANY KIND UNLESS THE APPLICABLE LAW OF A STATE OR JURISDICTION REQUIRES A LONGER WARRANTY PERIOD OR SETS NO LIMIT ON THE DURATION OF AN IMPLIED WARRANTY OR CONDITION. IN ANY SUCH CASE THE WARRANTY PERIOD WILL BE THE MINIMUM PRESCRIBED BY THE APPLICABLE LAW.
  3. Any supplements or updates to the software product, including without limitation, any service packs or hot fixes provided to you after the expiration of the ninety (90) day limited warranty period are not covered by any warranty or condition, express, implied or statutory, except to the extent that local law requires.

DISCLAIMER

19. Disclaimer of Warranties

THE LIMITED WARRANTY THAT APPEARS ABOVE IN SECTION 18 IS THE ONLY EXPRESS WARRANTY MADE TO YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OI AND ITS SUPPLIERS PROVIDE THE SOFTWARE AND SUPPORT SERVICES (IF ANY) AS IS AND WITH ALL FAULTS, AND HEREBY DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY (IF ANY) IMPLIED WARRANTIES, DUTIES OR CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF RELIABILITY OR AVAILABILITY, OF ACCURACY OR COMPLETENESS OF RESPONSES, OF RESULTS, OF WORKMANLIKE EFFORT, OF LACK OF VIRUSES, AND OF LACK OF NEGLIGENCE, ALL WITH REGARD TO THE SOFTWARE, AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATION, SOFTWARE, AND RELATED CONTENT THROUGH THE SOFTWARE OR OTHERWISE ARISING OUT OF THE USE OF THE SOFTWARE. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT WITH REGARD TO THE SOFTWARE.


REMEDIES AND EXCLUSIONS

20. Limitation of Liability and Remedies

NOTWITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED HEREIN AND ALL DIRECT OR GENERAL DAMAGES IN CONTRACT OR ANYTHING ELSE), THE ENTIRE LIABILITY OF OI AND ANY OF ITS SUPPLIERS UNDER ANY PROVISION OF THIS EULA AND YOUR EXCLUSIVE REMEDY HEREUNDER SHALL BE LIMITED TO THE GREATER OF THE ACTUAL DAMAGES YOU INCUR IN REASONABLE RELIANCE ON THE SOFTWARE UP TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE OR US$5.00. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.

21. Exclusion of Incidental, Consequential and Certain Other Damages

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL OI OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATION, SOFTWARE, AND RELATED CONTENT THROUGH THE SOFTWARE OR OTHERWISE ARISING OUT OF THE USE OF THE SOFTWARE, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS EULA, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF OI OR ANY SUPPLIER, AND EVEN IF OI OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.


MISCELLANEOUS PROVISIONS

22. Export Controls

You acknowledge that the software is subject to US export jurisdiction and may, therefore, be subject to US export controls or restrictions. You agree to comply with all applicable international and national laws that apply to the software, including the US Export Administration Regulations, as well as end-user, end-use, and destination restrictions issued by the US and other governments.

23. Applicable Law

If you acquired this software in the United States, this EULA is governed by the laws of the State of Delaware. If you acquired this software in any other country, then local law may apply.

24. Entire Agreement; Severability

This EULA (including any addendum or amendment to this EULA which is included with the software product) is the entire agreement between you and OI relating to the software product and the support services (if any) and it supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the software product or any other subject matter covered by this EULA. To the extent the terms of any OI policies or programs for support services conflict with the terms of this EULA, the terms of this EULA shall control. If any provision of this EULA is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect.

25. Further Information

For questions concerning any of the provisions of this Agreement or for any other reason, please e-mail us at [email protected].