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NetIQ(R) eDirectory(R) 8.8
NetIQ Modular Authentication Services (NMAS(tm))
NetIQ iManager, iMonitor, Certificate Server
End-User License Agreement
IMPORTANT - READ CAREFULLY:
THIS CONSTITUTES A LEGAL AGREEMENT ("AGREEMENT") BETWEEN YOU (EITHER
AN INDIVIDUAL OR A LEGAL ENTITY THAT WILL USE THE PRODUCT AND THAT
YOU REPRESENT AS AN EMPLOYEE OR AUTHORIZED AGENT) AND NETIQ WITH
RESPECT TO THE SOFTWARE IDENTIFIED HEREIN. BY INSTALLING, COPYING,
DOWNLOADING OR OTHERWISE ACCESSING THE SOFTWARE YOU AGREE TO BE
BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE
TERMS OF THIS AGREEMENT, NETIQ IS UNWILLING TO LICENSE THE SOFTWARE
TO YOU. IN SUCH EVENT, YOU MAY NOT USE OR COPY THE SOFTWARE, AND
YOU SHOULD PROMPTLY DESTROY ALL COPIES OF THE SOFTWARE AND
ACCOMPANYING DOCUMENTATION ("DOCUMENTATION"), OR NOTIFY NETIQ TO
OBTAIN INSTRUCTIONS ON RETURN OF THE UNUSED SOFTWARE IN ACCORDANCE
WITH ITS RETURN POLICIES.
THE SOFTWARE IS PROTECTED BY COPYRIGHT LAWS AND INTERNATIONAL
COPYRIGHT TREATIES, AS WELL AS OTHER INTELLECTUAL PROPERTY LAWS AND
TREATIES. THE SOFTWARE IS LICENSED, NOT SOLD.
1. GRANT. NetIQ Corporation ("NetIQ") hereby grants to You as
licensee, a nonexclusive, nontransferable license, without right of
sublicense, to install, use and execute the software identified in
the purchase documentation issued to You by NetIQ, together with any
updates and modifications to the foregoing, if any, provided to You
by NetIQ (collectively "Software"). The Software is licensed solely
in machine readable object code format and solely for Your internal
business use, in accordance with the terms of this Agreement, the
Purchase Documentation, the Documentation accompanying this
Software, and the applicable product use rights and restrictions
("Product Use Rights") as set forth in the Product Use Rights
Appendix which is hereby attached to this Agreement and incorporated
by reference.
2. EVALUATION USE. In the event that the Software is licensed only
for Evaluation Use, the terms of this paragraph shall apply. Your
license to use the Software commences on installation of the
Software and, unless You and NetIQ agree to a different period, will
terminate after a period of 30 days (the "Evaluation Period"). You
may use the Software for an unlimited number of users and servers
during the Evaluation Period. At the end of the Evaluation Period,
Your license to use the Evaluation version of the Software is
automatically terminated. You may not extend the time limits of the
Software in any manner. At the end of the Evaluation Period You
agree to de-install the Software and if required by NetIQ, return
all copies or partial copies of the Software or certify to NetIQ
that all copies or partial copies of the Software have been deleted
from Your computer libraries and/or storage devices and have been
destroyed. If You desire to continue Your use of the Software
beyond the Evaluation Period, You must contact NetIQ to acquire a
license to the Software for the applicable fee. EVALUATION SOFTWARE
IS PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTIES OR
REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED INCLUDING,
WITHOUT LIMITATION, ANY WARRANTIES OR REPRESENTATIONS OF TITLE OR
NON-INFRINGEMENT.
3. RESTRICTIONS. The rights granted herein are subject to the
restrictions in the Product Use Rights Appendix applicable to the
Software specified on Your Purchase Documentation and for which You
have paid NetIQ a fee and the following additional restrictions: (i)
You may not copy (except for back-up purposes), modify, port, adapt,
translate, localize, reverse engineer, de-compile, disassemble or
otherwise attempt to discover the source code of the Software,
except and only to the extent that it is expressly permitted by the
law in effect in the jurisdiction in which You are located
notwithstanding this limitation; (ii) You may not create derivative
works based on the Software; (iii) You may not remove any patent,
trademark, copyright, trade secret or other proprietary notices or
labels on the Software or Documentation; (iv) You may not transfer,
lease, assign, sublicense, pledge, rent, share or distribute the
Software or make it available for timesharing, service bureau or
on-line use, unless previously agreed to in writing by NetIQ; and
(v) You may not disclose the results of any performance, functional
or other evaluation or benchmarking of the Software to any third
party without the prior written permission of NetIQ.
4. SOFTWARE. If You receive Your first copy of the Software
electronically, and a second copy on physical media, the second copy
may be used for archival purposes only. This Agreement does not
grant You any right to receive, or any license to, any enhancement
or update of the Software, or any other NetIQ software.
5. TITLE. The Software and Documentation are confidential and
proprietary information of NetIQ and/or its suppliers. Title,
ownership rights, and intellectual property rights in and to the
foregoing shall remain with NetIQ and/or its suppliers. The
Software and Documentation are protected by the copyright laws of
the United States and international copyright treaties. Title,
ownership rights, and intellectual property rights in and to the
content accessed through the Software are the property of the
applicable content owner and may be protected by applicable
copyright or other law. This license gives You no rights to such
content. This license does not convey to You an interest in or to
the Software, but only grants You a limited right of use, which may
be revocable in accordance with the terms of this Agreement.
6. DISCLAIMER OF WARRANTIES. THE SOFTWARE IS PROVIDED TO YOU AS IS
AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY NETIQ
OR ITS SUPPLIERS, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH
RESPECT TO THE SOFTWARE, INCLUDING WARRANTIES OR CONDITIONS OF
TITLE, QUALITY, PERFORMANCE, NONINFRINGEMENT, MERCHANTABILITY, OR
FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES
CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE.
NETIQ AND ITS SUPPLIERS DO NOT WARRANT THAT THE SOFTWARE WILL MEET
YOUR NEEDS OR BE FREE FROM ERRORS, OR THAT THE OPERATIONS OF THE
SOFTWARE WILL BE UNINTERRUPTED. NETIQ AND ITS SUPPLIERS DO NOT
WARRANT THE ACCURACY OF THE REPORTS GENERATED. THE FOREGOING
EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT
AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE
PRODUCTS. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED
WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU.
7. LIMITED WARRANTY ON PHYSICAL MEDIA. NetIQ guarantees DVDs and CD
ROMs provided as physical media of Software is free of physical
defects for ninety (90) days from date of Your purchase. Your only
remedy of such defects is to return and exchange such physical
media. NetIQ is not responsible for defects caused by accidents,
inappropriate or illegal use of the media.
8. LIMITATION OF LIABILITY. NetIQ and its suppliers' cumulative
liability to You or any other party for any loss or damages
resulting from any claims, demands, or actions arising out of or
relating to this Agreement shall not exceed the license fee paid to
NetIQ for use of the Software.
9. EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES. NETIQ AND ITS
SUPPLIERS WILL NOT BE LIABLE TO YOU OR ANY THIRD-PARTY CLAIMANT FOR
ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL
DAMAGES, WHETHER BASED ON CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR
OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION,
OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY
FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS OR
EXCLUSIONS IN THIS PARAGRAPH MAY NOT APPLY TO YOU.
10. PROVISO. EACH OF THE DISCLAIMERS, LIMITATIONS AND EXCLUSIONS
CONTAINED IN THE ABOVE PARAGRAPHS HEADED "DISCLAIMER OF WARRANTIES",
"LIMITATION OF LIABILITY" AND "EXCLUSION OF CONSEQUENTIAL AND OTHER
DAMAGES" APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
11. SPECIAL PROVISIONS REGARDING OPEN SOURCE AND THIRD PARTY
SOFTWARE. The software may contain or be distributed with third
party software covered by an open source software license ("Open
Source Software") or other third party software ("Third Party
Software") covered by a different license. If Open Source Software
is included the terms and conditions of this license do not apply to
the Open Source Software. If Third Party Software is included the
terms and conditions of this license may not apply to Third Party
Software. Information concerning the inclusion of the Open Source
Software and Third Party Software not covered by this license, if
any, and the notices, license terms and disclaimers applicable to
such software is contained in the About Box and/or
ThirdPartySoftware.txt file or available on written request to NetIQ.
12. TERMINATION. Your license to use the Software continues until
terminated. This license will terminate automatically if You fail
to comply with any term hereof. No notice shall be required from
NetIQ to effect such termination. You may also terminate this
Agreement at any time by notifying NetIQ in writing of termination.
On termination, You must destroy all copies of the Software and
remove and uninstall all files an copies of the Software from your
information technology systems. Your obligation to pay accrued
charges and fees shall survive any termination of this Agreement.
13. COMMUNICATION. By registering or downloading this product, You
make the registered e-mail address available to receive information
about NetIQ and our products. To remove Yourself from this mailing
list, please visit: http://www.netiq.com/Account/lists.asp
14. PAYMENT. You are responsible for making full and timely payment
for the Software license. You shall pay all of NetIQ's reasonable
fees, costs and expenses (including reasonable attorneys' fees) if
legal action is required to collect outstanding balances.
15. ASSIGNMENT. Neither this Agreement nor any rights granted
hereunder may be sold, leased, assigned, or otherwise transferred,
in whole or in part, by You, whether voluntary or by operation of
law. Any such attempted assignment shall be void and of no effect
without the prior written consent of NetIQ.
16. ENTIRE AGREEMENT. This Agreement represents the complete
agreement concerning this license and supersedes (i) all prior
agreements and representations with respect to its subject matter;
and (ii) prevails over any conflicting or additional terms of any
order, acknowledgment, or similar communication between the parties.
It may be amended only by a writing executed by both parties.
17. SEVERABILITY. If any provision of this Agreement is held to be
unenforceable for any reason, such provision shall be reformed only
to the extent necessary to make it enforceable.
18. WAIVER. The waiver by either party of any default or breach of
this Agreement shall not constitute a waiver of any other or
subsequent default or breach.
19. GOVERNING LAW/JURISDICTION. This Agreement shall be governed by
and construed under Washington law as such law applies to
agreements between Washington residents entered into and to be
performed within Washington, except as governed by Federal law. If
any term of this Agreement is inconsistent with any provision of the
Uniform Computer Information Transactions Act ("UCITA"), as UCITA
may be enacted in the state whose law applies, such term shall be
enforced to the full extent allowed by law.
20. VERIFICATION. Licensor has the right to verify Your compliance
with this Agreement. You agree to:
A. Implement internal safeguards to prevent any unauthorized
copying, distribution, installation, or use of, or access to, the
Software and associated maintenance;
B. Keep records sufficient to certify Your compliance with this
Agreement (including any Product Use Rights Appendix), and, upon
request of Licensor, provide and certify metrics and/or reports
based upon such records and account for both numbers of copies (by
product and version) and network architectures as they may
reasonably relate to Your licensing and deployment of the Software
and associated maintenance; and
C. Allow a Licensor representative or an independent auditor to
inspect and audit Your computers and records, during Your normal
business hours, for compliance with the licensing terms for
Licensor's software products or associated maintenance. Upon
Licensor's and auditor's presentation of their signed written
confidentiality statement form to safeguard Your confidential
information, You shall fully cooperate with such audit and provide
any necessary assistance and access to records and computers. If an
audit reveals that You have or at any time have had unlicensed
installation, use of, or access to the Software, You will within 30
days purchase sufficient licenses and/or subscriptions and
associated maintenance to cover the volume and time period of any
shortfall without benefit of any otherwise applicable discount. If
a material license shortfall of 5% or more is found, You must
reimburse Licensor for the costs incurred in the audit.
21. EXPORT LAW ASSURANCES. You are responsible for complying with
all trade regulations and laws both foreign and domestic. You
acknowledge that this Software may only be exported or re-exported
in accordance with U.S. Government Export Administration
Regulations. Without authorization from the U.S. Government, You
may not export or re-export the Software (i) to any prohibited
country, person, entity, or end-user as specified by U.S. export
controls or (ii) for use in the design, development or production of
nuclear, chemical, or biological weapons, or missile technology, or
any other prohibited use. You warrant and represent that neither
the Bureau of Export Administration of the U.S. Commerce Department
not any other U.S. Government entity or agency has suspended,
revoked or denied, in whole or in part, Your export privileges. For
current information on U.S. export requirements and restrictions
visit www.bis.doc.gov/.
22. FORCE MAJEURE. NetIQ and its suppliers shall not be liable in
any respect for failures to perform hereunder due wholly or
substantially to the elements, acts of God, labor disputes, acts of
terrorism, acts of civil or military authority, fires, floods,
epidemics, quarantine restrictions, armed hostilities, riots and
other unavoidable events beyond the control of NetIQ or its
suppliers, and the time for performance of obligations hereunder by
NetIQ or its suppliers subject to such event shall be extended for
the duration of such event.
23. U.S. GOVERNMENT RESTRICTED RIGHTS. By accepting delivery of
or installing or using the Software, the U.S. Government or its
prime contractor or subcontractor (at any tier) hereby agrees that
notwithstanding anything to the contrary, and to the maximum extent
possible under federal law : (a) the acquisition of such Software is
governed by FAR Part 12 or DFAR 227.7202-4, as applicable and to the
extent such provisions are consistent with this Agreement; (b) such
Software qualifies as "commercial computer software" under the
applicable procurement regulations; (c) any modifications provided
by NetIQ in connection with such Software are either minor
derivative modifications or are of a type generally available in the
commercial marketplace; and (d) the U.S. Government will be bound by
the commercial terms and conditions and restricted rights contained
in this Agreement, and no other license terms shall be incorporated
into this Agreement except by mutual written consent.
IF YOU ARE A LICENSEE IN EUROPE, THE MIDDLE EAST OR AFRICA,
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE
FOLLOWING TERMS APPLY TO YOU:
A. NetIQ under this Agreement is NetIQ Europe Limited with its
registered offices at Building 2, 2nd Floor, Parkmore East Business
Park, Galway, Republic of Ireland. All references to "NetIQ", the
licensor of NetIQ software, or NetIQ Corporation (or a subsidiary of
NetIQ Corporation) shall refer to NetIQ Europe Limited.
B. If the laws of the country in which You are located require that
contracts be in the local language in order to be enforceable, the
version of this Agreement that shall govern is the translated
version of this Agreement in the local language that is produced by
NetIQ within a reasonable time following Your written request to
NetIQ.
C. Section 5 (Title) shall not apply and instead the following shall
apply:
"TITLE. NetIQ and its licensors own all the underlying intellectual
property rights in and to the Software and Documentation. The
Software and Documentation are NetIQ's confidential protected by the
copyright laws of the United States and international copyright
treaties. Title, ownership rights, and intellectual property rights
in and to the content accessed through the Software are the property
of the applicable content owner and may be protected by applicable
copyright or other law. This license gives You no rights to such
content. This license does not convey to You an interest in or to
the Software, but only grants You a limited right of use, which may
be revocable in accordance with the terms of this Agreement."
D. The limitations of liability in this Agreement shall not exclude
or limit NetIQ's liability for: (1) death or personal injury caused
by its negligence or the negligence of its employees, agents or
subcontracts, (2) breach of any implied terms as to title or quiet
enjoyment of any Software supplied pursuant to this Agreement, or
(3) fraudulent misrepresentation.
E. Section 12 (Termination) above shall not apply and instead the
following shall apply:
"TERMINATION. Your license to use the Software continues unless
terminated as provided in this Section. This license will terminate
automatically if You fail to comply with any term hereof. No notice
shall be required from NetIQ to effect such termination. On
termination, You shall destroy all copies of the Software. Your
obligation to pay accrued charges and fees shall survive any
termination of this Agreement."
F. Section 13 (Communication) above shall not apply.
G. Section 19 (Governing Law) above shall not apply and instead the
following shall apply:
"GOVERNING LAW. The Agreement is governed by the laws of the
Republic of Ireland. You hereby agree that for the benefit of
NetIQ, and without prejudice to the right of NetIQ to take
proceedings in relation hereto before any other court of competent
jurisdiction, that the courts of Ireland shall have exclusive
jurisdiction to hear and determine any suit, action or proceedings
that might arise out of or in connection with this Agreement and for
such purposes You irrevocably submit to the jurisdiction of such
courts. Any arbitration provision above shall not apply."
H. You acknowledge and agree that the benefits of certain provisions
of this Agreement are expressed to be for NetIQ Europe Limited and
NetIQ Corporation. You further acknowledge that each and any of the
foregoing shall be entitled in its or their own right to require by
You the due performance of each such provision as aforesaid and to
this end, that NetIQ Europe Limited is entering into this Agreement
not only in its own right, but also as trustee and agent for NetIQ
Corporation.
THE FOLLOWING APPENDIX IS INCORPORATED INTO THIS AGREEMENT BY
REFERENCE.
NETIQ PRODUCT USE RIGHTS APPENDIX
COMMON TERMS - All Products
DEFINITIONS: As used in this appendix, "Software" means a specific
NetIQ software product for which You have Purchase Documentation
issued to You by NetIQ or NetIQ's agent. Unless defined in this
appendix, capitalized terms have the meaning given in the parent
Agreement.
STANDARD TERMS: Use the Software family headers and the product
and license type tags below to locate the Product Use Rights terms
applicable to the Software. Your usage of the Software must be
consistent with such terms and with the unit count on Your purchase
documentation. Product use rights terms below for other license
types or products do not apply to You.
LIMITED USE RESTRICTIONS: Notwithstanding the standard terms
below, Your rights may be limited by restrictions which were part of
Your Software license acquisition. If such restrictions apply to
Your license, then You must apply the restrictions in the broadest
possible manner in interpreting Your product and license type rights
below.
DEFINITIONS:
"User" means a user object in a single directory tree (or other
class of object that contains data representing a person, such as
objects containing credit card information or PIN numbers) that has
(a) access or use rights to any portion of the Software, or (b)
access or use rights to products (devices, hardware, or software)
being managed by the Software, regardless of whether the user object
is assigned to a person or device. User objects (or other classes of
objects) representing the same person that are linked to each other
within a single tree and/or linked across multiple trees count as
only one User.
You must acquire a user license for each User. Each person who
accesses or uses the Software must have at least one user object
uniquely assigned to that person and access the Software through the
user object. Provided that You comply with the above requirements,
You are authorized to use an unlimited number of copies of the
Software.
LICENSES:
NetIQ eDirectory. You must acquire a user license for each User.
Each person who accesses or uses the Software must have at least one
user object uniquely assigned to that person and access the Software
through the user object. Provided that You comply with the above
requirements, You are authorized to use an unlimited number of
copies of the Software. Each user license for eDirectory includes a
user license for NMAS.
NetIQ eDirectory Developer License. As a convenience to developers
developing products that interoperate with NetIQ eDirectory, the 30
day limit on the evaluation period is removed. This modification
applies solely to Your use of the NetIQ eDirectory 8.8 product for
development and testing purposes.
NMAS License. You must acquire a user license for each User. Each
person who accesses or uses the Software must have at least one user
object uniquely assigned to that person and access the Software
through the user object. Provided that You comply with the above
requirements, You are authorized to use an unlimited number of
copies of the Software.
NetIQ iMonitor, NetIQ iManager, NetIQ Certificate Server. You are
authorized to install and use the Software identified in this
paragraph internally within Your organization in connection with
Your lawful use of eDirectory.
Novell(R) Internet Cryptographic Infrastructure (NICI). You are
authorized to install and use NICI internally within Your
organization in connection with Your lawful use of eDirectory and
subject to the Novell, Inc Software License Agreement applicable to
NICI.
Staging License. Provided that You are in compliance with the terms
of this Agreement, You are authorized to use the Software in Your
internal, non-production environment solely for testing purposes in
a quantity equal to that of Your User commercial licenses.
END OF PRODUCT USE RIGHTS APPENDIX
NetIQ, NMAS and eDirectory are either trademarks or registered
trademarks of NetIQ Corporation in certain jurisdictions. Novell
is a registered trademark of Novell, Inc. in the United States and
other countries.
NetIQ Corporation
1233 West Loop South
Houston, TX 77027
U.S.A.
(081613)