Freemium License Agreement

PLEASE SCROLL DOWN AND READ CAREFULLY ALL TERMS AND CONDITIONS CONTAINED IN THIS LICENSE AGREEMENT (THIS “AGREEMENT”) BEFORE USING THE SOFTWARE, AND/OR SERVICES DEFINED HEREIN AS THE “TECHNOLOGIES”.

BY CLICKING ON THE “I ACCEPT” BUTTON BELOW, ACCESSING THE SOFTWARE AND/OR USING THE TECHNOLOGIES, YOU ACKNOWLEDGE AND AGREE THAT YOU: (I) HAVE READ ALL THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT; (II) UNDERSTAND ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT; (III) ACCEPT AND AGREE TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT; AND (IV) ACKNOWLEDGE AND AGREE THAT THE ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT (“E-SIGN”) APPLIES TO THIS TRANSACTION AND ANY TRANSACTIONS BETWEEN THE PARTIES UNDERTAKEN HEREUNDER MAY BE UNDERTAKEN BY ELECTRONIC MEANS.

IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST CLICK ON THE “CANCEL” BUTTON BELOW, YOU MUST CONTACT NETBEEZ (AS DEFINED BELOW) IMMEDIATELY AND YOU MAY NOT USE THE TECHNOLOGIES. IF YOU ARE USING THE TECHNOLOGIES AND DO NOT AGREE WITH THE TERMS AND CONDITIONS IN THIS AGREEMENT, YOU MUST IMMEDIATELY DISCONTINUE USE OF THE TECHNOLOGIES, CONTACT NETBEEZ IMMEDIATELY, AND COMPLY WITH THE TERMINATION PROVISIONS HEREOF.

IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY (OR OTHER ENTITY), YOU REPRESENT THAT YOU ARE AN EMPLOYEE OR AGENT OF SUCH COMPANY (OR OTHER ENTITY) AND YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH COMPANY (OR OTHER ENTITY).

This Agreement is entered between the individual or entity obtaining the Technologies (“you” or “Customer”), and NetBeez, Inc. (“NetBeez”) a Delaware corporation having its principal place of business at 5750 Baum Boulevard, Suite 301, Pittsburgh, PA 15206.

Each of the above individually referred to as a “Party” and jointly as the “Parties”.

NOW IT IS HEREBY AGREED AS FOLLOWS BY THE PARTIES WITH THE INTENT TO BE LEGALLY BOUND HEREBY:

  1. Definitions

“Documentation” means the user manuals and related explanatory written materials concerning the Technologies that are made available to the Customer.

“Server” is that portion of the Technologies where the user dashboard and other system components run.

“Services” means the network monitoring and related services to be rendered by NetBeez pursuant to this Agreement.

“Software” is the proprietary software incorporated into the Technologies and Documentation with respect thereto as well as any updates, derivatives, modifications and/or enhancements that are made available by NetBeez to Customer pursuant to this Agreement. Without limiting the foregoing, the term “Software” includes the code underlying any Servers and Virtual Agents mad available to and accessed by Customer pursuant to this Agreement and expressly excludes “Third Party Software” and “Cloud Services.”

“Technologies” means, collectively, the Software and the Services made available by NetBeez to the Customer.

“Third Party Software” means software that has not been developed by NetBeez (including without limitation any third-party plug-in) and that is licensed under various open source programs pursuant to an end user license agreement that permits the end user to copy, modify and redistribute such software.

“Virtual Agents” is that portion of the Technologies that performs network and application tests and that reports availability and performance measurement data to the Server.

  1. License Grant. Subject the terms and conditions of this Agreement, during the term of this Agreement, NetBeez grants Customer a limited, revocable, nonexclusive, non-transferable, non-sublicensable license to access and use the Technologies in the United States, and its territories and any other country in which the same may be lawfully used). Customer’s rights to the Technologies are limited to the licenses expressly granted to Customer in this Agreement. NetBeez reserves all rights not expressly granted in this Agreement. Customer acknowledges and agrees that NetBeez has the right to modify the Technologies at any time for any reason without notice to Customer. NetBeez may audit and track Customer’s access and use of the Technologies, as well as the Customer’s configuration.
  1. Third Party Providers. Customer acknowledges and agrees that the Technologies contain Third Party Software. NEITHER NetBeez NOR THE THIRD PARTY SOFTWARE PROVIDERS ARE responsible and shall have NO liability AS A RESULT OF CUSTOMER’S USE OF THE Third Party Software. Customer acknowledges that the Services and Technologies will be available pursuant to a hosted solution (“Cloud Services”) provided by third-party on-demand cloud services providers (“Cloud Providers”). NEITHER NETBEEZ NOR THE CLOUD PROVIDERS SHALL BE RESPONSIBLE AND SHALL HAVE NO LIABILITY FOR AVAILABILITY OR LACK OF AVAILABILITY OF THE TECHNOLOGIES OR SERVICES. NEITHER NETBEEZ NOR ITS CLOUD PROVIDERS WILL BE LIABLE FOR ANY DAMAGES RELATED TO ANY DOWNTIME, OUTAGES, LOSS OF DATA, OR UNAUTHORIZED ACCESS TO CUSTOMER’S DATA.
  1. Rights, Title, and Interest to Technologies. Except as otherwise set forth herein, NetBeez and its licensors remain the owner of all right, title, and interest in and to the Technologies and all associated intellectual property. Nothing contained herein shall be deemed to convey to Customer any title, right, or interest in and to such Technologies or any trademarks, service marks, or intellectual property rights of NetBeez or its licensors. The Technologies are protected by copyright laws in the United States and other countries as well as by international treaties.
    1. Use 

5.a Responsibility. Customer will: (i) be responsible for any necessary hardware, software and connectivity required to access the World Wide Web and use the Technologies, including without limitation, any fees associated with establishing and maintaining such access; (ii) prevent unauthorized access to or use of the Technologies; and (iii) use the Technologies only in accordance with the Documentation in a manner consistent with all applicable laws and regulations.

5.b Restrictions. Customer shall not, and shall not permit anyone else within its control, to: (i) use or possess the Technologies except as expressly allowed under the License Grant section; (ii) copy or reproduce in whole or in part the Technologies or the Documentation without the advance express written permission of NetBeez; (iii) remove any proprietary notices or labels on or otherwise incorporated into the Technologies; (iv) try to access the content and file system of the Server where the Software is running; (v) modify or adapt the Technologies (including without limitation the Software) or incorporate or merge it or any component thereof into another program; (vi) reverse engineer, disassemble, decompile or make any attempt to discover the source code of the Technologies (including without limitation the Software); (vii) place the Software onto a server so that it is accessible via a public network such as the Internet, (viii) sublicense, rent, lease or lend any portion of the Technologies, or (ix) permit others to use the Technologies in addition to those authorized under this Agreement.

  1. No Warranties. THE TECHNOLOGIES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, ACCURACY, AND EFFORT IS WITH THE CUSTOMER. ALL WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, REGARDING THE TECHNOLOGIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, AVAILABILITY, NON-INTERFERENCE WITH CUSTOMER’S QUIET ENJOYMENT, THAT THE TECHNOLOGIES WILL MEET CUSTOMER’S REQUIREMENTS, ARE ABLE TO OPERATE ON AN UNINTERRUPTED BASIS, SECURE AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, ARE HEREBY EXPRESSLY DISCLAIMED. WITHOUT LIMITING THE FOREGOING, NETBEEZ DOES NOT WARRANT UNINTERRUPTED OR ERROR-FREE OPERATION OF THE TECHNOLOGIES. FURTHER, CUSTOMER ACKNOWLEDGES THAT NETBEEZ SHALL NOT BE RESPONSIBLE FOR AND DOES NOT CONTROL THE CLOUD PROVIDER SERVERS. CUSTOMER UNDERSTAND AND ACKNOWLEDGES THAT NEITHER NETBEEZ NOR THE CLOUD PROVIDERS SHALL BE RESPONSIBLE FOR ANY DATA, INFORMATION OR OTHER MATERIAL PLACED ON SUCH SERVERS. NEITHER NETBEEZ NOR THE CLOUD PROVIDERS ARE RESPONSIBLE FOR ANY LOSS OF DATA OR HARM DONE TO CUSTOMER’S COMPUTER, SYSTEMS OR OTHER EQUIPMENT ARISING OUT OF OR RELATING TO CUSTOMER’S USE OF THE TECHNOLOGIES. CUSTOMER UNDERSTANDS AND AGREES THAT USE OF THE TECHNOLOGIES IS AT CUSTOMER’S OWN RISK AND DISCRETION.
    1. Limitations of Liability; No Duty to Support, Maintain or Update. To the maximum extent permitted by applicable law, in no event shall NetBeez’s total cumulative liability in connection with this Agreement and the Technologies, whether in contract or tort or otherwise, exceed ONE HUNDRED DOLLARS ($100).

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL NETBEEZ, ITS AFFILIATES, THIRD PARTY LICENSORS, CLOUD PROVIDERS OR SUPPLIERS BE LIABLE TO CUSTOMER FOR ANY DAMAGES, INCLUDING ANY LOST PROFITS, LOST SAVINGS, OR INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING FROM THE USE OR THE INABILITY TO USE THE TECHNOLOGIES (EVEN IF WE OR AN AUTHORIZED DEALER OR DISTRIBUTOR HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES), OR FOR ANY CLAIM BY ANY OTHER PARTY.

Customer acknowledges that NetBeez would not enter into this Agreement without these limitations on its liability.

Customer also acknowledges that NetBeez has no duty to update, supplement, support, maintain or otherwise modify the Technologies at any time.

  1. Term and Termination. This Agreement takes effect upon Customer’s use of any portion of the Technologies and remains effective until terminated. This Agreement may be terminated by Customer or NetBeez at any time with or without cause by either party providing the other party written notice. This Agreement shall automatically terminate upon Customer’s breach hereof. Upon termination of this Agreement all licensed rights granted in this Agreement will immediately and automatically cease to exist. Customer agrees on termination of this Agreement to destroy all Documentation in Customer’s possession. We reserve the right to terminate instances that have been inactive or unconfigured for more than 30 days.
  1. Confidentiality. The Technologies contain trade secrets and proprietary know-how that belong exclusively to NetBeez and it is being made available to Customer in strict confidence. ANY USE OR DISCLOSURE OF THE TECHNOLOGIES OR OF ITS ALGORITHMS, SOURCE CODE, PROTOCOLS OR INTERFACES, OTHER THAN IN STRICT ACCORDANCE WITH THIS LICENSE AGREEMENT, MAY BE ACTIONABLE AS A VIOLATION OF NETBEEZ’S TRADE SECRET RIGHTS. 
  1. Export and Compliance with Laws. Customer agrees that the Technologies will not be used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations. Customer will defend, indemnify, and hold harmless NetBeez from and against any violation of such laws or regulations by Customer or any of its agents, officers, directors, or employees. In carrying out its respective obligations under the Agreement, each Party shall comply with all applicable laws and regulations of the local country and of any other applicable country.
  1. Notices. All notices required under this Agreement to NetBeez shall be provided in writing to the address indicated in the preamble to this Agreement. All notices to the Customer shall be providd to the most recent address provided to NetBeez by Customer.
  1. Choice of Law; Exclusive Venue and Jurisdiction. This Agreement shall be interpreted, enforced and governed by the laws of the Commonwealth of Pennsylvania, excluding its choice of law provisions. Any disputes arising under or relating to this Agreement shall be heard in the Court of Common Pleas of Allegheny County, Pennsylvania or the United States District Court for the Western District of Pennsylvania. Each Party hereby consents to the jurisdiction of said courts and waives any objections that it has or may have at any time to the exclusive jurisdiction of such courts, the laying of venue in such courts or the convenience of the forum.
  1. Severability. If, at any time, any clause or provision in this Agreement is or becomes unenforceable or invalid in any respect under the law of any jurisdiction, neither legality, validity or enforceability of the remaining provisions hereof nor the legality, validity or enforceability of such provision under the law of any other jurisdiction shall in any way be affected or impaired thereby. The award shall be final and binding on the Parties.
  1. Force Majeure. Neither Party hereto shall be liable for any breach of its obligations hereunder resulting from causes beyond its reasonable control, including but not limited to, acts of government, strike, act of terrorism, natural disasters, fire and explosions, failure or diminishment of power or telecommunications or data networks or services (an “Event of Force Majeure”) to the extent that such breach is due to an Event of Force Majeure. Each of the Parties agrees to give notice forthwith to the other Party promptly after becoming aware of an Event of Force Majeure such notice to contain details of the circumstances giving rise to the Event of Force Majeure. If a default due to an Event of Force Majeure continues for more than four (4) weeks, then the Party not in default shall be entitled to terminate this Agreement. Neither party shall have any liability to other in respect of the termination of this Agreement as a result of an Event of Force Majeure.
  1. Hold Harmless. Customer agrees to indemnify, defend and hold harmless NetBeez and its providers (and their officers, directors, agents, and employees) from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with Customer’s use of the Technologies, including without limitation, arising out of or in connection with any claim by a third party or by Customer with respect to network outages reported, not reported or misreported by virtue of use of the Technologies and damage to network systems attributable thereto.
  1. No Third Party Beneficiaries. Except as specifically provided herein, nothing in this Agreement, express or implied, is intended or shall confer upon any person or entity other than the Parties any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement, except that any affiliate of NetBeez may enforce this Agreement and any of its clauses or provisions either directly for such affiliates’ benefit or the benefit of NetBeez.
  1. Entire Agreement. This Agreement, including any exhibits and appendices hereto and thereto, constitutes the entire understanding between the parties with respect to the subject matter thereof. In the event that the Parties have entered into prior agreements with respect to the Technologies such agreements are hereby terminated and made of no further force or effect. There are no promises, terms, conditions, or obligations other than those contained herein and therein. NetBeez may modify this Agreement, the Services or the Technologies at any time without notice to Customer.
  1. Assignment. Customer shall not be entitled to assign or transfer all or any portion of its rights, benefits and obligations under this Agreement without the prior written consent of NetBeez.
  1. Remedies; No Waiver. The Parties’ rights and remedies under this Agreement are cumulative. Customer acknowledges that the Technologies contain valuable trade secrets and proprietary information of NetBeez, that any actual or threatened breach of this Agreement will constitute immediate, irreparable harm to NetBeez for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. No failure to exercise, nor any delay in exercising, on the part of either Party, any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise thereof or the exercise of any other right or remedy.
  1. Independent Contractors. In performing under this Agreement, each Party shall at all times and for all purposes, constitute an independent contractor and not an employee or agent of the other Party any of its affiliates.
  1. Survival. Any provision of this Agreement that, in order to give proper effect to its intent, should survive termination, shall survive the termination of this Agreement.
  1. Government Restricted Rights. The Software and Documentation are “commercial items,” as that term is used in 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. § 12.212, and, consistent with 48 C.F.R. § 12.212 and 48 C.F.R. Subpart 227.72, all U.S. government Customers and authorized users acquire the Software and Documentation with restricted rights and only those rights set forth in this Agreement. Use, duplication, reproduction, or disclosure by the U.S. government, including any department, agency or unit thereof, is subject to the restrictions applicable under of the Federal Acquisition Regulations and the Department of Defense Supplement thereto, if applicable, or any successor laws, rules or regulations. Licensor/manufacturer is: NetBeez, Inc., 5750 Baum Boulevard, Suite 301, Pittsburgh, PA 15206.
  1. Headings. The headings in this Agreement are for purposes of convenience only and will not limit or otherwise affect the terms or provisions hereof.

 

Contact Information:

NetBeez, Inc.
5750 Baum Boulevard
Suite 301
Pittsburgh, PA 15206

Email: info@netbeez.net
© NetBeez, Inc. 2014-2017. All rights reserved.