License agreement

License Agreement
-----------------

Installation and Use of nGenius InfiniStream / nGenius Collector Requires
Acceptance of the Following License Agreement:

 

NetScout Systems, Inc.
End User License Agreement

NETSCOUT SYSTEMS, INC., ON BEHALF OF ITSELF AND ITS SUBSIDIARIES AND
AFFILIATES (COLLECTIVELY, "NETSCOUT"), WILL LICENSE PRODUCTS TO YOU ONLY IF
YOU ACCEPT THIS END USER LICENSE AGREEMENT ("AGREEMENT"). CAREFULLY READ THIS
AGREEMENT BEFORE USING THE PRODUCTS.  By clicking the "I accept" button below,
or by installing or using the Software, you indicate that you understand this
Agreement and accept and agree to comply with all of its terms.  If you do not
accept all of the terms of this Agreement, then DO NOT INSTALL THE SOFTWARE.
Definitions
"Documentation" means any installation guides, reference guides, operation
manuals and release notes provided with the Product in printed, electronic, or
online form.
"Hardware" means hardware products generally available on Licensor's price
list.
"Licensor" means either NetScout Systems, Inc. or the NetScout affiliate from
whom you are receiving the Product or Services, either directly or via an
authorized Licensor reseller.
"Maintenance" means technical support services for the Products that Licensor
makes available upon purchase in accordance with Licensor's then-current technical support services terms as applicable.
"Product" means Software and Hardware.
"Quotation" means the document under which Licensor offers for sale and
license its Products, Maintenance, and other services.
"Software" means Licensor proprietary programs in object code and the firmware
contained on the Hardware generally available on Licensor's price list. In the
event you purchase Maintenance, Software includes any updates (maintenance
releases, enhancements, corrections, bug fixes, and modifications made to the
Software that are provided to Licensor customers generally as part of
Maintenance pursuant to a valid Maintenance contract).  The term Software does
not include APIs (defined in Section 13.c).
"Services" means Maintenance as well as any other services offered by Licensor
from time to time.
1.      License Grant.  Subject to payment of the applicable license fee and the
terms set forth in this Agreement, the Documentation and the applicable
Quotation, Licensor grants you a limited, non-exclusive, non-transferable
license to use the Software and the Documentation for your own internal
business purposes.  Such use is limited to the number of licenses for which
you paid the applicable license fee.  You may make one copy of the Software
for archival or backup purposes only ("Copy") as well as copies of the
Documentation for internal use only.  The Copy may not be used to implement
fault tolerant, redundant, or contingency environments.  Proprietary rights notices on Software and Documentation must be reproduced and applied to any
Copy.
2.      License Restrictions.
(a) NetScout and its third-party licensors (such third-party licensors, the
"Suppliers") retain all right, title, and interest in and to the Software and
all copies.  No title to the Software, or to any intellectual property or
other rights, is transferred to you other than as specified in this Agreement.
No right, title or interest in or to any trademarks, service marks, or trade
names of Licensor or its Suppliers is granted by this Agreement.  Software is
copyrighted and contains proprietary information and trade secrets belonging
to Licensor and its Suppliers.
Except as required by law, you will not, and will not cause or permit others
to, derive the source code of the Software, or reverse engineer, disassemble,
or de-compile the Software. You may not (i) create derivative works of the
Software, (ii) lend, rent, lease, assign, sublicense, and/or make available
through timesharing the Software, or (iii) without Licensor's prior written
authorization, transfer the Software or provide third party access to the
Software.  Transfers will only be permitted for products with no more than
minimal differences in price, features, and functionality and provided that
the transfer does not increase the number of licensed copies. Any violation of
these restrictions will be cause for immediate termination by Licensor of this
Agreement and any licenses granted. (b) If you move the Product from one location to another ("Product
Relocation"), you do so at your own risk, loss and expense. You are
responsible for obtaining all necessary licenses to export, re-export or
import the Product. You will indemnify, defend and hold Licensor harmless from
and against any and all claims, demands, suits, actions, damages, liabilities,
fines, penalties, losses, and expenses including without limitation attorneys'
fees and disbursements and court costs (collectively, "Claims") arising from
Product Relocation.  Failure to notify Licensor of Product Relocation may
result in an inability for Licensor to perform its warranty obligations or
Maintenance in accordance with its Maintenance terms, and Licensor shall not
be liable for any claims resulting from Product Relocation.
(c)  If you purchase only Software and use such Software on or with hardware
that does not meet the technical specifications set forth in the applicable
Software-only Product Documentation, then: (i) Licensor will not warrant the
performance of or results obtained by using the Software-only Product and
Licensor disclaims all liability with respect to the foregoing, (ii) you
assume the risk as to the results and performance of the Software-only
Product, and (iii) you hereby acknowledge and agree that your rights and
Licensor's obligations with respect to Maintenance and warranty are waived.
(d)  The Product may contain third-party technology. Such third-party
technology and documentation ("Third-Party Materials") is licensed for use
with the Product only.  If the Product contains Third-Party Materials, or if

 

you have the option to use the Product in conjunction with Third-Party
Materials (as identified by the Documentation), then such Third-Party
Materials are provided or accessible subject to the applicable third-party
terms contained either in an electronic file located in the Software, or in a
document, application CD or appendix to the Product Documentation. You agree
to abide by the terms of said licenses and to obtain any additional licenses
that may be required to use the Third-Party Materials, including but not
limited to patent licenses. Your use of Third- Party Materials in conjunction
with the Product and in a manner consistent with the terms of this Agreement
is permitted, provided, however, that you may have broader rights under the
applicable Third-Party Materials license and nothing in this Agreement is
intended to impose further restrictions on your use of such Third-Party
Materials. You agree to indemnify, defend and hold Licensor harmless from and
against any and all Claims arising from failure to obtain, or breach of,
Third-Party Materials licenses. To the extent Products include Third-Party
Materials licensed to Licensor by third parties, those third parties are third
party beneficiaries of, and may enforce, the applicable provisions of this
Agreement as well as the Third-Party Materials terms and conditions.
(e) If you are using the Product to perform network management and monitoring
services for third parties ("Managed Services"), the following terms apply,
unless you have a signed agreement with NetScout, in which case the terms of
the signed agreement will govern your use of the Product in support of your

 

Managed Services activity.  Title to the Hardware and licenses to Software
remain with you and may not be resold or sublicensed to your Managed Services
customer. You are hereby granted the right to use the Software for monitoring
and managing the networks of your Managed Services customers.  In addition to
needing a Software license for use of the Software in support of your internal
business operations, you will need to purchase a separate Software license for
deployment and use of the Software by each of your Managed Services customers.
You will maintain Maintenance for Products associated with your Managed
Services on behalf of your customers.  You will not replace or make repairs or
modifications (collectively, "Repairs") to the Hardware or any of its
components.  Notwithstanding anything to the contrary in Section 2(b),
transfers of Products from an identified location to a different location will
require Licensor's prior written consent, and you will notify Licensor of the
name and new address of your Managed Services customer associated with such
transfer.  You will indemnify, defend, and hold Licensor harmless from and
against any and all Claims, incurred by Licensor arising from (i) Repairs made
by you or any third party, (ii) misrepresentations made by you to your Managed
Services customer related to the Products or Maintenance, (iii) your
performance of Managed Services, (iv) use of Products in violation of
applicable country export restrictions, or (v) your infringement of Licensor
or its Suppliers' intellectual property rights.  You may permit your Managed
Services customer access to Products located on premises owned or under the

 

control of such customer, provided that (vi) the customer accesses such
Products for its own internal business purposes, (vii) the customer executes a
written confidentiality agreement with you that incorporates terms at least as
protective of the Products and Services as provided in this Agreement, and
(viii) you remain responsible for breach of such confidentiality agreement or
any of the terms and conditions of this Agreement by your Managed Services
customers.
(f)  If you use the services of a third party to perform network management
and monitoring services on your behalf (such third party an "Outsourcer" and
such services, "Outsourcing Services"), then the following terms apply.
Subject to the terms of this Agreement, (i) Outsourcer may access the Products
and Maintenance solely for purposes of performing Outsourcing Services, (ii)
Outsourcer must use the Products and Maintenance in accordance with the terms
of this Agreement, (iii) you remain liable for and will indemnify, defend, and
hold harmless NetScout from and against any and all Claims associated with (1)
all actions, demands, and suits brought against Licensor arising from
Outsourcer's use of the Products and Maintenance in a manner not permitted
hereunder or in the Documentation, or repairs to the Hardware or replacements
or modifications to components thereto, or (2) breach of the license grant,
license restrictions, Licensor's intellectual property rights, or
confidentiality obligations hereunder by you or Outsourcer, (iv) Outsourcer
executes a written confidentiality agreement with you that incorporates terms

 

at least as protective of Licensor's Confidential Information, as provided
herein, (v) you provide written notification to NetScout of the proposed
transaction and identification of the proposed Outsourcer and the affected
Products and Maintenance, and (vi) if the Products are relocated to a data
processing facility of Outsourcer, the installation and operation of the
Products will be strictly limited to computer processors exclusively dedicated
for your  sole access, use and benefit.  Any violation of the foregoing will
be cause for immediate termination by NetScout of this Agreement and any
licenses granted as a result.  In any event, you will remain responsible for
all payment and other obligations which will remain in full force.
3.      License Term.  The license is effective until terminated.  You may
terminate the license at any time by destroying the Software, Documentation,
and Copies, and providing written certification to Licensor that all of the
foregoing has been destroyed. The license will also terminate if you or your
employees or third-party agents fail to comply with any terms of this
Agreement. Upon such termination, you will either return the Software,
Documentation, and Copies or, with Licensor's prior consent, destroy the
Software, Documentation, and Copies.
4.      Confidentiality.  The Product (including Copies and Unsupported Products,
defined in Sections 1 and 13, respectively) contains valuable trade secrets of
NetScout and constitutes Confidential Information of NetScout and its
licensors.  Additionally, "Confidential Information" includes non-public

 

NetScout technical, financial, commercial or other confidential or proprietary
information, Services, Product roadmaps, pricing, software code,
Documentation, techniques and systems. You will not disclose Confidential
Information to any third party except to the extent such disclosure is
necessary for performance of this Agreement, or it can be documented that any
such Confidential Information is in the public domain and generally available
to the general public without any restriction.  You will use the same degree
of care to protect Confidential Information as you use to protect your own
confidential information but in no event less than reasonable care.
Accordingly, you will not provide access to or disclose Confidential
Information to any third party without the prior written consent of a duly
authorized U.S. NetScout corporate officer.  In addition, you may not disclose
or otherwise publish the results of any benchmark tests run on the Products to
any third party without NetScout's prior written approval.  Confidential
Information will, at all times, remain the property of NetScout.
5.      Warranty.
(a)     Limited Warranty.  Licensor warrants that the media on which the Software
is recorded will be free from defects in materials and workmanship under
normal use and service for a period of 90 days from the original date of
shipment of the Software ("Media Warranty Period").  Licensor warrants that
the Software for a period of 90 days ("Software Warranty Period") and the
Hardware for a period of 12 months ("Hardware Warranty Period"), in either

 

case from its original date of shipment or, in the case of Software, when
first made available to you for download, will substantially conform to the
Documentation. If, during (i) the Media Warranty Period, a defect in the media
occurs and is reported to Licensor, the media may be returned to Licensor, and
Licensor will replace the media without charge to you, or (ii) the Software
Warranty Period or Hardware Warranty Period, a failure of the Software or
Hardware to conform as warranted occurs and is reported to Licensor, Licensor,
at its option, will use commercially reasonable efforts to repair or replace
the non-conforming Software or Hardware. The foregoing warranties will apply
provided you give Licensor prompt written notice of any such defect or
nonconformity within the warranty period specified above and return the
defective media or non-conforming Software or Hardware, as the case may be, to
Licensor in accordance with Licensor's return process.
(b)     Warranty Exclusions.  The warranty set forth in Section 5 does not apply
to any failure of the Software or Hardware caused by (i) your failure to
follow Licensor's installation, operation, or Maintenance instructions,
procedures, or Documentation; (ii) your mishandling, misuse, negligence, or
improper installation, de-installation, storage, servicing, or operation of
the Product; (iii) modifications or repairs not authorized by Licensor in
writing; (iv) use of the Products in combination with equipment or software
not supplied by Licensor or authorized in the Documentation; and (v) power
failures or surges, fire, flood, accident, actions of third parties, or other

 

events outside Licensor's reasonable control.  Licensor cannot and does not
warrant the performance or results that may be obtained by using the Products,
nor does Licensor warrant that the Products are appropriate for your purposes
or error-free.
THE WARRANTY SET FORTH IN SECTION 5 IS YOUR SOLE AND EXCLUSIVE REMEDY AND
LICENSOR'S ENTIRE LIABILITY FOR DEFECTIVE MEDIA OR NON-CONFORMING PRODUCTS AND
IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, AND NONINFRINGEMENT.
6.      Liability Limit.  TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL
LICENSOR OR ITS LICENSORS OR SUPPLIERS BE LIABLE FOR SPECIAL, INDIRECT,
PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO,
LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF USE, LOSS OF DATA, BUSINESS
INTERRUPTION, OR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, EVEN
IF ADVISED OF THE POSSIBILITY THEREOF.  TO THE MAXIMUM EXTENT PERMITTED BY
LAW, IN NO EVENT WILL THE CUMULATIVE LIABILITY OF LICENSOR EXCEED THE AMOUNTS
PAID OR PAYABLE TO LICENSOR FOR THE APPLICABLE PRODUCT OR SERVICE THAT GAVE
RISE TO SUCH CLAIM.
THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT ARE CUMULATIVE AND
ARE INTENDED AND ACKNOWLEDGED BY YOU TO BENEFIT LICENSOR AND ITS SUPPLIERS.
Licensor is acting on behalf of its Suppliers for the purpose of disclaiming,
excluding and/or limiting obligations, warranties and liability as provided in

 

this Agreement.
7.  Audit Rights.  Licensor may conduct, during normal business hours, an
audit of your use of the Software, including any Third-Party Materials
contained therein, as well as applicable records and computers, to verify your
compliance with the terms and conditions of this Agreement.  Licensor may
provide the results of any such audit to Suppliers of Third-Party Materials.
8.      Export Controls.  You will comply, at your own expense, with all laws,
regulations, rules, and ordinances of any governmental body, department, or
agency that apply to or result from your obligations under this Agreement.
You hereby represent and warrant that neither the Products, nor any related
technical information, data, documents, and materials, nor any derivatives,
will be exported, re-exported, diverted, transferred, or disclosed, directly
or indirectly, to any country or to any national or resident thereof, except
as authorized and permitted by all applicable laws and regulations. You will
cooperate with Licensor in executing documents or licenses necessary to comply
with these laws and regulations and with any related audit or inspection.
Certain Products contain encryption and therefore may be subject to import and
use restrictions in other countries.  You are responsible for complying with
the import, export, and use restrictions of other applicable countries,
including those that relate to Products that contain, use, or perform
encryption.  You shall indemnify, defend, and hold Licensor harmless from and
against any and all Claims arising from your failure to comply with this

 

Section 8.
9.      Survival.  The following sections will survive any termination of this
Agreement:  2 (License Restrictions), 4 (Confidentiality), 6 (Liability
Limit), 7 (Audit Rights), 8 (Export Controls), 10 (Assignment), 11 (U.S.
Government Restricted Rights), 12 (High Risk Activities), and 14 (Personal
Data and EU Export Compliance).
10.     Assignment.  You will not directly or indirectly sell, transfer, assign,
or delegate in whole or in part this Agreement, or any rights, duties,
obligations or liabilities under this Agreement, to any third party, including
to any affiliated entity, without the prior written consent of Licensor.
11.     U.S. Government Restricted Rights.  If You are licensing Software and
Documentation on behalf of the U.S. Government or by a U.S. Government prime
contractor or subcontractor (at any tier), it is classified as "Commercial
Computer Product" and "Commercial Computer Documentation" developed at private
expense, contains confidential information and trade secrets of NetScout and
its Suppliers, and is subject to "Restricted Rights" as that term is defined
in the Federal Acquisition Regulations. The Government's rights in the
Software and Documentation shall be only those set forth in this Agreement.
12.     High Risk Activities.  The Product is not fault-tolerant and is not
designed or intended for use in hazardous environments requiring fail-safe
performance, including without limitation in the operation of nuclear
facilities, aircraft navigation or aircraft communication systems, air traffic

 

control, weapons systems, direct life-support machines, or any other
application in which the failure of the Product could lead directly to death,
personal injury, or severe physical or property damage (collectively, "High
Risk Activities"). Licensor expressly disclaims any express or implied
warranty of fitness for High Risk Activities.
13.  Additional Terms and Limitations for Unsupported Products.
(a) Evaluation Products. If you have received a temporary right to use the
Product for testing, evaluation, or demonstration purposes ("Evaluation
Product"), then, subject to the terms of this Agreement and Documentation,
Licensor hereby grants you a temporary, revocable, non-exclusive,
non-transferable license to use the Evaluation Product set forth in the
applicable Licensor Evaluation Request Form or other Licensor documentation
solely for testing, evaluation, or demonstration purposes.
Evaluation Product that is Software contains a license key which disables the
Software after 30 days, or other term as agreed to by the parties, and which
will render the Evaluation Product unusable.
If, upon conclusion of the evaluation period, you wish to continue to use the
Evaluation Product, you must purchase such Product. If you choose not to
purchase the Evaluation Product, any installed Software-only Evaluation
Product must be removed from your system(s) and all permitted copies of such
Evaluation Product immediately destroyed.  A Return Materials Authorization
number ("RMA #") for any Hardware Evaluation Product must be obtained prior to

 

return of such Product.  Upon completion of the evaluation period and before
you ship Hardware Evaluation Products to Licensor you must comply with Section
14.
(b) Pre-Released Product.  If the Product you have received with this license
is not yet commercially available ("Pre-Released Product"), then Licensor
grants you a temporary, revocable, non-exclusive, non-transferable license to
use the Pre-Released Product and the associated Documentation, if any, as
provided to you by Licensor solely for internal (i) laboratory, (ii)
demonstration, and (iii) evaluation purposes.  If you have been provided the
Pre-Released Product pursuant to a separate written agreement, your use of the
Pre-Released Product is also governed by such agreement. Licensor may
terminate your right to use the Pre-Released Product at any time at Licensor's
discretion.
Your Use of the Pre-Released Product is limited to 30 days unless otherwise
agreed to in writing by Licensor.
You acknowledge and agree that (iv) Licensor has not promised or guaranteed to
you that the Pre-Released Product will be announced or made available to
anyone in the future; (v) Licensor has no express or implied obligation to you
to announce or introduce the Pre-Released Product; (vi) Licensor may not
introduce a product similar to or compatible with the Pre-Released Product;
and (vii) any use of the Pre-Released Product or any product associated with
the Pre-Released Product is entirely at your own risk.

 

During the term of this Agreement, if requested by Licensor, you will (viii)
provide feedback to Licensor regarding use of the Pre-Released Product,
including error or bug reports, (ix) promptly report to NetScout any problems
that may arise in evaluating and using the Pre-Released Product, (x) prepare a
report evaluating the Pre-Released Product as part of a test plan or
describing problems encountered and any resolutions developed for those
problems, and (xi) provide VPN or on site access to the Pre-Released Product
as necessary.  Additionally, during the term of your use of the Pre-Released
Product, you may provide Licensor with certain electronic data capture or
survey files ("Project Files"). You hereby grant to Licensor a worldwide,
nonexclusive, nontransferable, non-assignable, perpetual right and license to
reproduce, use, display, modify, manipulate and analyze the Project Files for
the purposes of enabling Licensor to support, maintain, develop, test and
enhance Products and Services. By providing Project Files to Licensor, you
represent and warrant to Licensor that you have sufficient rights to the
Project Files to grant such rights to Licensor.
If it becomes necessary for you to withdraw from the Pre-Released Product
testing for a particular Pre-Released Product, you will withdraw, at your own
cost, according to the following procedure:  You will de-install the
Pre-Released Software and return to Licensor all materials provided by
Licensor to you as part of the Pre-Released Product process, including any and
all temporary server platform(s) or Hardware provided, if any.  Upon receipt

 

of a later, unreleased version of the Pre-Released Product or release by
Licensor of a publicly released commercial version of the Pre-Released
Product, whether as a stand-alone product or as part of a larger product, you
agree to return or destroy, within 10 days, all copies of earlier Pre-Released
Product received from Licensor and to comply with the terms of the applicable
End User License Agreement for any such later versions of the Product.  You
will not disclose any features or functions of any Pre-Released Product until
Licensor makes the Pre-Released Product publicly available.
(c) APIs.  "APIs" means the software application interfaces and workflow
methods made generally available by Licensor in certain Products to enable
integration, implementation, and interoperability with third party hardware
and software.  If Licensor makes APIs for a given Product generally available,
then the following terms will apply.  You may use the API, together with
applicable documentation, any sample code, and any sample applications
provided with the API and that may be included as part of a Software
Development Kit ("SDK") to design, develop, and test software programs.  You
may (i) make a single copy of the SDK for back-up purposes only (ii) copy the
runtime components of the SDK ("Runtime Component") into software code created
through your use of the SDK, and (iii) reproduce and distribute such Runtime
Component solely as a component of your software code.  You may not use the
SDK to develop, or incorporate the Runtime Component in, a product or service
that competes with Products or Services. Licensor's ownership rights in

 

Section 2 apply to any output such as the Runtime Component.  The inclusion of
the Runtime Components in your original code created through your use of the
SDK in no way alters Licensor's ownership rights in the Runtime Component.
Licensor may develop software programs substantially similar or identical to
those developed by you through your use of the SDK and reserves the right to
sell and distribute those software programs.
(d) Unsupported Products.  If the Product you have received with this license
is or includes (i) Evaluation Products, (ii) Pre-Released Products, or (iii)
SDKs (collectively, "Unsupported Products"), then you will pay for repair of
damages to, or the list price of, the Unsupported Products, as applicable, due
to theft, or loss of or damage to Unsupported Products from the time you
receive such Products until Licensor receives the Unsupported Products back
upon conclusion of your applicable use.  To the extent that any provision in
this Section is in conflict with any other term in this Agreement, this
Section will supersede such other term(s) with respect to the Unsupported
Products, but only to the extent necessary to resolve the conflict.
Unsupported Products are provided to you "AS-IS" and Licensor disclaims any
warranty or liability obligations to you of any kind.  Maintenance is not
available for the Unsupported Products. Licensor may change, suspend, or
discontinue any aspect of the Unsupported Products at any time, including the
availability of any Unsupported Product, and impose limits on certain features
and services or restrict your access to parts or all of Pre-Released and SDK

 

Products.  Licensor's ownership rights and the restrictions in Section 2,
apply to Unsupported Products.
To the maximum extent permitted by applicable law, you hereby (iv) release
Licensor and its subsidiaries, affiliates, officers, agents, licensors, and
employees (collectively, "Indemnitees") from liability for Claims, and waive
all Claims against Indemnitees, arising from or in any way related to your use
of the Unsupported Products; and (v) agree to hold harmless, indemnify and
defend Indemnitees from and against any and all Claims arising from or related
to your use of the Unsupported Products.
14.  Personal Data and EU Export Compliance.  You are responsible for taking
precautions and safeguards necessary to protect your data and systems from
loss.  Prior to giving Licensor access to the Products, Evaluation Products,
or Pre-released Products, including for RMA purposes in connection with
Maintenance or return of any Evaluation Products or Pre-released Products, you
must remove: (a) personal data and information, including without limitation,
personal health information or personally identifiable information
(collectively, "Personal Data") (as such is defined under applicable local
law, regulation or directive), and confidential or proprietary information,
and (b) removable media such as floppy disks, CDs, or PC Cards.  In addition,
you are responsible for backing up your data on the Products, Evaluation
Products, and Pre-Released Products and in the networks and systems in which
they are deployed. You are responsible for the safeguarding of your Personal

 

Data and confidential and proprietary information, and Licensor is not
responsible for any such information or its removal; lost or corrupted data;
or damaged or lost removable media.
You may submit Personal Data to Licensor, and Licensor may have access to
Personal Data in the course of providing services.  Licensor will not review,
share, distribute, or refer to any such Personal Data, except as provided in
this Agreement or any contract between Licensor and you, or as may be required
by law.  Licensor will take appropriate procedural, technical and
organizational measures to protect against unlawful or unauthorized use of the
Personal Data and against accidental loss or destruction of, or damage to,
Personal Data.  Licensor may access Personal Data only for the purposes of
providing the services, preventing or addressing service or technical
problems, at your request in connection with services, as expressly permitted
by the Agreement, or as may be required by law.
In the course of performing services, Licensor may transfer Personal Data to
the United States. If you have information originating from the European
Union, NetScout's Data Processing Addendum located at
https://www.netscout.com/legal/privacy-policy ("DPA") will govern the
transfer, access and use of the Personal Data and is incorporated herein by
reference.  If you would like a signed hard copy of the DPA for your files,
you may download, sign and return the DPA to legalservices@netscout.com.
15.  Incidental Use of Aggregate/Anonymous Data.

 

You may provide to Licensor data and network traffic information including,
but not limited to, configuration data, IP addresses, payload data (which
includes the content of the message), screenshots, data dumps, and trace and
log files ("Customer Data").  Licensor may use Customer Data to provide
services as well as for purposes compatible with providing services including,
but not limited to, error analysis and correction, and product and services
adjustment, configuration, improvement, and development.  In addition,
Licensor may: (a) compile statistical and other information related to the
performance, operation and use of the Products and/or Services, and (b) use
and share data from the Products and/or Services, including Personal Data and
Customer Data, in aggregated form to create statistical analysis and for
research and development purposes (hereafter "Product and Service Analyses").
  Licensor retains all intellectual property rights in Product and Service
Analyses. Customer retains all intellectual property rights in the Customer
Data.
NetScout's Privacy Policy located at
http://www.netscout.com/legal/privacy-policy/ applies to Licensor's
collection, use, disclosure, transfer or other processing of your Personal
Data, as applicable, and the terms of such Policy are incorporated herein by
this reference.
16. General. This Agreement and the Quotation(s) issued by Licensor constitute
the entire agreement between the parties with respect to the subject matter

 

hereof and supersede all prior agreements, arrangements, and understandings
between the parties regarding such subject matter, except where the parties
have a signed master purchase agreement or similar contract ("Contract"), in
which case such Contract will govern.  Any conflicting or additional terms in
your purchase orders or other documentation are expressly rejected. This
Agreement may be modified only in writing, signed by authorized
representatives of both parties.  No course of dealing between the parties
will be used to modify, interpret, supplement, or alter the terms of this
Agreement.  No failure of either party to exercise any power or right
hereunder or to insist upon strict compliance with the terms of this
Agreement, and no custom or practice of the parties at variance with the terms
hereof, will constitute a waiver of either party's right to demand compliance
with the terms of this Agreement.  If any of the provisions of this Agreement
are determined to be invalid, illegal, or unenforceable, such provisions will
be severed from this Agreement, and the remainder of this Agreement will be
valid and enforceable to the extent permitted by applicable law, provided that
the intent of the parties is not materially impaired.  The parties will use
their best efforts to replace the invalid or unenforceable provision by a
provision that, to the extent permitted by law, achieves the purposes intended
under the invalid or unenforceable provision. This Agreement is governed by
the laws of the Commonwealth of Massachusetts without regard to choice of law
rules, and you hereby submit to the jurisdiction of the federal and state

 

courts located in said Commonwealth and the applicable service of process.
The parties agree that the United Nations Convention on International Sale of
Goods Acts will not apply to this Agreement.  Except for the obligation to
make payments, non-performance of either party will be excused to the extent
that performance is rendered impossible by strike, fire, flood, acts of God,
governmental acts or orders or restrictions, act of terrorism, war, or any
other reason where failure to perform is beyond the reasonable control of the
non-performing party and not due to its fault or negligence.

NetScout Systems, Inc., 310 Littleton Road, Westford, Massachusetts 01886
Main Phone:  978-614-4000 / Main Fax: 978-614-4004

P/N 293-1070 Rev. O
Rev. 08Mar2018F End User License Agreement