This Click-Through Agreement (the “Agreement”) contains the terms and conditions upon which Ziften Technologies, Inc., a Delaware corporation (“Ziften”), grants to you (“Licensee”) a limited license to evaluate the software Licensee downloads pursuant to a link provided following acceptance of this Agreement (“Software”). Please read this Agreement carefully. By clicking “I AGREE”, you acknowledge that you have read and accept the terms and conditions of this Agreement in its entirety.
IF YOU ARE ENTERING INTO THIS AGREEMENT WITHIN THE SCOPE OF YOUR EMPLOYMENT OR IN CONNECTION WITH YOUR ENGAGEMENT AS AN INDEPENDENT CONTRACTOR, THEN THE TERM “LICENSEE” INCLUDES YOUR EMPLOYER OR PRINCIPAL CONTRACTOR, AS APPLICABLE, AND YOU WARRANT AND REPRESENT TO ZIFTEN THAT YOU ARE AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH EMPLOYER’S OR PRINCIPAL CONTRACTOR’S BEHALF. IF YOU DO NOT HAVE SUCH AUTHORITY, YOU MUST NOT AGREE TO THESE TERMS, YOU MUST NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE.
SECTION 1: LICENSE GRANT
1.1 Ziften hereby grants to Licensee, and Licensee hereby accepts, a non-exclusive, non-transferable, limited license (without the right to grant sub-licenses) to download, install, and evaluate at Licensee’s facility a single copy of the Software, together with the associated documentation, tutorials, samples, and tools (collectively, the “Program”), subject to the terms and conditions of this Agreement. Licensee may deploy the Software on no more than 100 end points, unless otherwise agreed in writing by Ziften. The license granted in this Section 1.1 is granted with respect to the version of the Software in existence at the time Licensee downloads the Software, and Licensee is not granted a license to, and Licensee is not permitted to, download or use any other version of the Software under the terms of this or any other evaluation agreement. Licensee’s use of any subsequent version of the Software is only permitted under a separately executed, full version license or subscription agreement.
1.2 The Program is designed for use only with the Ziften for Splunk software application, which must be separately licensed by Licensee. All use of the Ziften for Splunk software is subject to and governed by separate license terms and conditions, which terms and conditions Licensee would be required to agree to prior to use of such software.
SECTION 2: LIMITED USE; PROPRIETARY RIGHTS
2.1. The Program is furnished to Licensee for the sole purpose of enabling Licensee to evaluate the Program. Licensee shall use the Program solely for such purpose, and shall not, without the prior written approval of Ziften, use or allow any third party to use the Program for any other purpose. Without limiting the generality of the foregoing, Licensee shall not utilize the Program in connection with the development or maintenance of any product or application or permit any third party to do so.
2.2. This Agreement conveys to Licensee only a limited license to evaluate the Program during the Term, fully revocable in accordance with the provisions of this Agreement. Except for the limited license granted herein, Licensee does not receive and shall not assert any right, title, or interest in or to the Program.
2.3. Ziften claims and reserves to itself and its licensors all rights and benefits in the Program afforded under applicable US and international copyright laws and conventions.
2.4. Licensee shall devote its best efforts, consistent with the practices and procedures under which it protects its own most valuable proprietary information and materials, to protect the Program against any unauthorized or unlawful use or copying. Licensee may use the Software only for Licensee’s own internal business purposes. Unless otherwise expressly permitted in this Agreement, Licensee shall not: (i) use the Software to process, or permit the Software to process, data for any third party; (ii) use the Software in operation of a service bureau; or (iii) permit any third parties to use the Software. Licensee shall not, and shall not permit any part of the Software to be reproduced, modified, translated, decompiled, disassembled, adapted, reverse engineered, distributed, displayed, published, transferred, or otherwise used, in any form or by any means. If there is unauthorized use by anyone who obtained access to the Software directly or indirectly through Licensee, Licensee will take all steps reasonably necessary to terminate the unauthorized use. Licensee will cooperate and assist with any actions taken by Ziften to prevent or terminate unauthorized use of the Software.
2.5. Licensee shall make no copies of the Program except for those necessary to fulfill the purpose of this Agreement.
2.6. Upon the earlier of termination of the Agreement or Licensee’s permanent cessation of use of the Program, Licensee shall, unless otherwise agreed in writing by Ziften, completely destroy all copies of all or any part of the Program in any form, whether electronic, printed, or otherwise, and provide written confirmation of same to Ziften.
SECTION 3: TERM OF AGREEMENT; TERMINATION
3.1. The license granted in Section 1.1 shall commence upon Licensee’s acceptance of this Agreement and, unless otherwise agreed in writing by Ziften, shall expire thirty (30) days after that date unless sooner terminated as provided herein (the “Term”) at which time this Agreement shall also terminate. Ziften may terminate the license and this Agreement at any time in its discretion upon notice to Licensee. Ziften may use electronic means to enforce the time limitations on the license granted herein (e.g., time limited usage keys) meaning that the Software may cease to operate at any time following expiration of the license. Licensee will take no action designed to alter or circumvent such enforcement.
3.2. This Agreement and Licensee’s authorization to use the Program shall terminate automatically if Licensee fails to comply with any provision of this Agreement. No notice shall be required from Ziften to give effect to such termination.
3.3. Sections 1.2, 2.3-2.6, and 3–7 shall survive termination or expiration of this Agreement and shall remain binding upon the parties in perpetuity.
SECTION 4: NO WARRANTIES
4.1. ZIFTEN DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS, AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROGRAM AND ANY OTHER DATA, INFORMATION, OR OTHER MATERIAL FURNISHED TO LICENSEE HEREUNDER, INCLUDING, WITHOUT LIMITATION, THE CONDITION THEREOF; CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION; THE EXISTENCE OF ANY LATENT OR PATENT DEFECTS THEREIN; AND WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OR USE. ZIFTEN DOES NOT WARRANT OR GUARANTEE THAT THE SOFTWARE WILL OPERATE UNINTERRUPTED OR ERROR-FREE.
4.2. In no event shall Ziften be liable to Licensee or any third party for any loss of profits, business interruption, or loss of business information; any incidental, special, exemplary, or consequential damages; or any claims or demands brought against Licensee, even if Ziften has been advised of the possibility of such damages.
SECTION 5: CONFIDENTIALITY
5.1 Ziften Proprietary Information. The Software and all intellectual property rights related thereto, and any business, operational, or technical information provided to Licensee by Ziften hereunder (the “Ziften Proprietary Information”) constitute trade secrets and proprietary information of Ziften or its third-party licensors, and nothing in this Agreement shall be construed to convey any title or ownership rights to Licensee. Ziften shall own and retain all rights, title, and interest in and to the Ziften Proprietary Information and all modifications, enhancements, or other derivative works thereof, by whomever made, and all recommendations, suggestions, and feedback provided by Licensee with respect to the Software or Services. Licensee will use commercially reasonable efforts to safeguard the confidentiality of the Ziften Proprietary Information and any other information marked as confidential by Ziften, including those taken by Licensee to protect Licensee’s own confidential information. Licensee will not use or disclose, in whole or in part, any item of the Software, Ziften Proprietary Information, or any other information marked as confidential to any individual, entity, or other person, except as set forth herein or to those Licensee consultants who (i) require access for Licensee’s authorized use of the Ziften Proprietary Information, (ii) agree in writing to comply with the use and non-disclosure provisions no less restrictive than those set forth in this Agreement, and (iii) are not competitors of Ziften.
5.2 Relief. Licensee acknowledges that in the event it fails to fulfill its obligations under this Section, Ziften (including any third-party licensors) shall have the right to take all reasonable steps to protect their proprietary interests, including, but not limited to, seeking injunctive relief and any other remedies as may be available at law or in equity, without being required to post a bond.
SECTION 6: NOTICES
Any notice due or to be given hereunder to Ziften shall be in writing by U.S. mail or commercial delivery service such as Federal Express and delivered to Ziften at Ziften Technologies, Inc., 2700 Via Fortuna, Suite 410, Austin, Texas 78746.
SECTION 7: MISCELLANEOUS
7.1. The obligations of this Agreement are personal to Licensee. Licensee may not assign or transfer its rights or obligations under this Agreement, by operation of law or otherwise, without the prior written consent of Ziften. Any attempted assignment in violation of this Section 7.1 shall be void and of no effect.
7.2. This Agreement shall be governed in accordance with the laws of the State of Texas, without reference to or use of its rules governing the conflict of laws. Any dispute arising out of this Agreement shall be finally and exclusively settled in the state or federal courts located in Travis County in the State of Texas, and each party hereby agrees to such jurisdiction.
7.3. This Agreement constitutes the entire and exclusive agreement between the parties hereto with respect to the subject matter hereof, and may only be amended by a writing executed by both parties.
7.4 This Agreement will not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is hereby expressly excluded.
7.5. The use of the singular herein includes the plural and vice versa; the use of the neuter includes the masculine and the feminine.
7.6. Notwithstanding anything herein to the contrary, nothing in this Agreement shall be deemed or construed to confer any rights of third-party beneficiary on any person.