End User License Agreement
Before obtaining a license key, or using Uptime Infrastructure Monitor, please read the following End User License Agreement for Uptime Infrastructure Monitor. The Uptime Infrastructure Monitor End User License Agreement defines the rights, permissions, and limitations that you agree to by choosing Uptime Infrastructure Monitor.
NOTICE TO USER
This End User License Agreement (the "Agreement") is a legal contract between you, as either an individual or a business entity, and Uptime Software Inc. ("Uptime").
PLEASE READ THIS CONTRACT CAREFULLY BEFORE DOWNLOADING UPTIME'S PROPRIETARY SOFTWARE (the "SOFTWARE") OR OBTAINING A LICENSE KEY TO THE SOFTWARE OR USING THE SOFTWARE. BY CLICKING ON THE "I ACCEPT" BUTTON AND BY DOWNLOADING THE SOFTWARE OR OBTAINING A LICENSE KEY TO THE SOFTWARE YOU REPRESENT AND WARRANT THAT YOU ARE EITHER THE REPRESENTATIVE OF THE COMPANY WITH THE AUTHORITY TO ENTER INTO THIS AGREEMENT AND TO BIND THE COMPANY OR YOU ARE AN INDIVIDUAL OVER THE AGE OF 18 AND THAT YOU HAVE READ THIS AGREEMENT, THAT YOU UNDERSTAND IT, AND THAT YOU ACCEPT AND AGREE TO BE BOUND BY ITS TERMS. IF YOU ARE UNWILLING TO BE BOUND BY THE TERMS OF THIS AGREEMENT YOU SHOULD CLICK THE "I DO NOT ACCEPT" BUTTON BELOW, TERMINATE THE DOWNLOAD PROCESS AND REFRAIN FROM ACCESSING OR USING THE SOFTWARE. THIS AGREEMENT REPRESENTS THE ENTIRE AGREEMENT BETWEEN YOU AND UPTIME CONCERNING THE SOFTWARE AND THIS AGREEMENT SUPERSEDES AND REPLACES ANY PRIOR PROPOSAL, REPRESENTATION, COMMUNICATION, ADVERTISEMENT OR UNDERSTANDING YOU MAY HAVE HAD WITH UPTIME RELATING TO THE SOFTWARE.
1.1. Grant of License.
Uptime hereby grants to you and you accept, a limited, non-exclusive license to use the Software in machine-readable, object code form only and the user manuals accompanying the Software (the "Documentation"), only as authorized in this Agreement. For purposes of this Agreement, the "Software" includes any updates, enhancements, modifications, revisions or additions to the Software or Software license keys made by Uptime and made available to end users through Uptime's web site. Notwithstanding the foregoing, Uptime shall be under no obligation to provide any updates, enhancements, modifications, revisions, or additions to the Software, including Software license keys, to users who do not purchase Uptime Software support.
1.2. Scope of Use
You may use the Software activated by a license key on a single server designated by you as the monitoring station. If you have multiple license keys for the Software each key will be activated on a designated server. For purposes of this Agreement, "use" of the Software means loading the Software into the temporary or permanent memory of a computer. The Software may not be used on or distributed to a greater number of servers than you have license keys. There is no restriction on the number of users who may access the designated servers and use the Software.
1.3. Copies and Modifications
You may not reverse engineer, decompile, disassemble or otherwise translate the Software or attempt to derive the source code of the Software or any license keys you have obtained. You may not modify or adapt the Software or any license keys that you have obtained in any way. You may make one (1) copy of the Software, the Documentation and any license keys that you have obtained, solely for backup or archival purposes. Any such copies of the Software, Documentation or license keys shall include any copyright or other proprietary notices that were included on such materials when you first received them. Except as authorized in this Section 1.3, no copies of the Software, Documentation or license keys, or any part thereof, may be made by you or any person under your authority or control.
1.4. Assignment of Rights
The license granted under this Agreement is personal to you. You are not permitted to grant access to, distribute, sell, transfer, publish, disclose, display, sublicense, lease, rent or lend your rights in the Software, Documentation or license keys as granted by this Agreement for any purpose or in any manner.
2. Intellectual Property and Confidentiality
2.1. Use Reporting, License Violations and Remedies
Uptime reserves the right to gather data on key usage including license key numbers, server IP addresses, domain counts and other information deemed relevant to ensure that its products are being used in accordance with the terms of this Agreement. Uptime expressly prohibits simultaneous, multiple installations of its licensed products and domain count overrides without its prior written approval. Any unauthorized use shall be considered by Uptime to be a violation of this Agreement. Uptime reserves the right to remedy violations immediately upon discovery, by charging the then-current list price of unauthorized keys to the end user or by any other means necessary. You agree not to block, electronically or otherwise, the transmission of data required for compliance with this Agreement. Any blocking of data required for compliance under this Agreement is considered to be violation of this Agreement and will result in immediate termination of this Agreement pursuant to Section 4.
2.2. License Automatic Update and Expiration
Your license may include an expiration date that can result in the termination of the license. For permanent license keys, the license updates will be available to you upon payment of the appropriate, then-current Uptime license fees. You must contact Uptime to take the appropriate steps to obtain the permanent key. If your license key is stolen or if you suspect any improper or illegal usage of your license outside of your control you should promptly notify Uptime of such occurrence. A replacement license will be issued to you and the suspect license will be allowed to expire. For your convenience Uptime provides license expiration warnings in the product interface should there be any issues that would cause the license to expire. It is your responsibility to contact Uptime regarding any potential expiration. Uptime is not liable for any damages or costs incurred in connection with an expiring license.
2.3. Proprietary Rights to Software and Trade Marks
You acknowledge that the Software and the Documentation are proprietary to Uptime and the Software and Documentation are protected under Canadian copyright law and international treaties. You further acknowledge and agree that, as between you and Uptime, Uptime owns and shall continue to own all right, title and interest in and to the Software and Documentation including associated intellectual property rights under copyright, trade secret, patent or trade mark laws. This Agreement does not grant you any ownership interest in or to the Software or the Documentation but only a limited right of use that is revocable in accordance with the terms of this Agreement. Any and all trade marks or service marks that Uptime uses in connection with the Software or with services rendered by Uptime are marks owned by Uptime. This Agreement does not grant you any right, license or interest in such marks and you shall not assert any right, license or interest in such marks or any words or designs that are confusingly similar to such marks.
You shall permit only authorized users who possess rightfully obtained license keys to use the Software or to view the Documentation. Except as expressly authorized by this Agreement you shall not make the Software, Documentation or any license key available to any third party. You will use your best efforts to co-operate with and assist Uptime in identifying and preventing any unauthorized use, copying or disclosure of the Software, Documentation or any part thereof.
3. License Fees
The Software will be available to you for use upon your receipt of one or more license keys. Upon acceptance of this Agreement you may obtain one or more temporary license keys and permanent license keys using the procedure set forth on Uptime's web site including, but not limited to, payment of Uptime's license fees. The license fees paid by you are paid in consideration of the license granted under this Agreement. Uptime does not refund license fees. By accepting this Agreement you fully understand that once license fee payment is made to Uptime you will have no recourse for receiving a refund of any part of the fees.
4. Term and Termination
This Agreement is effective upon your acceptance of the Agreement or upon your downloading, accessing and using the Software, even if you have not expressly accepted this Agreement. This Agreement shall continue in effect until terminated. Without prejudice to any other rights, this Agreement will terminate automatically if you fail to comply with any of the limitations or other requirements described herein. If you have a temporary key and fail to pay the applicable license fees for continuation of use the key will expire. You may terminate this License Agreement at any time by: (i) providing written notice of your decision to terminate the Agreement to Uptime; and, (ii) either returning the Software, Documentation, all copies thereof and all license keys that you have obtained to Uptime or destroying all such materials and providing written verification of such destruction to Uptime. Uptime reserves the right to physically verify that the Software has been removed. Uptime may terminate this License Agreement if you breach any term of the Agreement by giving you written notice of your breach and Uptime’s decision to terminate the Agreement. Upon termination by Uptime you agree to either return the Software, Documentation and all copies thereof and all license keys that you have obtained to Uptime or to destroy all such materials and provide written verification of such destruction to Uptime.
5. Remedies and Indemnification
If you learn of any actual or threatened infringement or piracy of the Software or, if any infringement or piracy claim is made against you by a third party in connection with your use of the Software, you shall notify Uptime in writing of the infringement, piracy or claim as soon as is reasonably possible. Uptime shall, in its sole discretion, determine what action, if any, to take with respect to the foregoing and shall assume the defense or bear the expenses of any such action (except to the extent, if any, to which such dispute or costs arise from your negligence, wilful misconduct or modification of the Software). In the event that the use of the Software in accordance with the provisions of this Agreement is declared by a court of competent jurisdiction to infringe the rights of any third party, as your sole remedy, Uptime, at its option may: (i) procure for you the right to use the Software; or, (ii) modify the Software to render it non-infringing.
You will, at your expense, indemnify and hold Uptime and all its officers, directors and employees, harmless from and against any and all claims, actions, liabilities, losses, damages, judgments, grants, costs and expenses, including reasonable lawyers fees (collectively "Claims") arising out of any use of the Software by you, any party related to you or any party acting upon your authorization in a manner that is not expressly authorized by this Agreement.
THE SOFTWARE, DOCUMENTATION AND ANY (IF ANY) SUPPORT SERVICES ARE LICENSED "AS IS" AND UPTIME AND ITS SUPPLIERS DISCLAIM ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, UPTIME EXPRESSLY DOES NOT WARRANT THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. YOU ASSUME RESPONSIBILITY FOR SELECTING THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS AND FOR THE RESULTS OBTAINED FROM YOUR USE OF THE SOFTWARE. YOU SHALL BEAR THE ENTIRE RISK AS TO THE QUALITY AND THE PERFORMANCE OF THE SOFTWARE.
7. Limitation of Liability
UPTIME'S CUMULATIVE LIABILITY TO YOU OR ANY PARTY RELATED TO YOU FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, UPTIME'S INTELLECTUAL PROPERTY INDEMNIFICATION OBLIGATIONS SHALL BE LIMITED TO THE AMOUNT OF LICENSE FEES PAID TO UPTIME BY YOU UNDER THIS AGREEMENT. BUT, IN NO EVENT SHALL SUCH LIABILITY EXCEED CDN. $2,000.00 IN THE AGGREGATE FOR ALL OCCURRENCES. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNITY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS. IN NO EVENT SHALL UPTIME BE LIABLE TO YOU OR ANY PARTY RELATED TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OR LOST PROFITS EVEN IF UPTIME HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
8. General Terms
8.1. Governing Law and Choice of Forum
This Agreement shall be governed by and interpreted in accordance with the laws of the Province of Ontario, Canada, without regard to the conflicts of law rules thereof. Any claim or dispute arising in connection with this Agreement shall be resolved in the federal or provincial courts situated with the City of Toronto, Ontario. To the maximum extent permitted by law, you hereby consent to the jurisdiction and venue of such courts and waive any objections to the jurisdiction or venue of such courts. To the extent any terms and conditions on a purchase order or other ordering document submitted to Uptime by you conflicts with the terms of this Agreement, the terms of this Agreement shall control and notwithstanding any term of your order which states to the contrary.
If any term or provision of this Agreement is declared void or unenforceable in a particular situation by any judicial or administrative authority this declaration shall not affect the validity or the enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation.
Sections 2, 5, 6, 7 and 8 of this Agreement and all subsections thereof shall survive the termination of this Agreement regardless of the cause for termination and shall remain valid and binding indefinitely.
The Article and Section headings contained in this Agreement are incorporated for reference purposes only and shall not affect the meaning or interpretation of this Agreement.
8.5. No Waiver
The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
You shall, in addition to the license fees required under this Agreement, pay all applicable sales, use, transfer or other taxes and all duties, whether national, provincial or local, however, designated, that are levied or imposed by reason of the transaction contemplated under this Agreement exclusing income taxes on the net profits of Uptime. You shall reimburse Uptime for the amount of any such taxes or duties paid or incurred directly by Uptime as a result of this transaction.