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SL CORPORATION – END USER LICENSE AGREEMENT

RTView® Enterprise Monitor, RTView® Cloud, RTView Core®, and RTView® DataServer

Please read the following agreement and accept the Terms and Conditions before downloading your software.

SL CORPORATION SOFTWARE LICENSE AGREEMENT

PLEASE CAREFULLY READ THIS LICENSE AND THEN CLICK ON THE BUTTON ON THE PREVIOUS PAGE TO INDICATE WHETHER YOU ACCEPT, OR DO NOT ACCEPT, THE TERMS OF THIS LICENSE FROM SL CORPORATION. YOU MUST ACCEPT THE TERMS OF THIS LICENSE BEFORE YOU DOWNLOAD, INSTALL OR OTHERWISE USE THE SOFTWARE. IF YOU DO NOT ACCEPT THE TERMS OF THIS LICENSE, YOU ARE NOT AUTHORIZED TO DOWNLOAD, INSTALL OR USE THIS SOFTWARE.

The purpose of this End User License Agreement (“EULA”) is to provide for a license governing the evaluation and/or purchased license of certain Software from Sherrill-Lubinski Corporation (“SL”) by the purchasing company (“Customer”). If this EULA covers the evaluation of the Software, Customer is granted limited rights as specified herein and Customer acknowledges that the license key delivered to it will be temporary in nature, is to be used solely for evaluation purposes and will expire unless license(s) are purchased from SL and the key is replaced. Under this EULA, the Customer agrees to the following conditions:

I. DEFINITIONS

“Cloud Products” means the proprietary SL web-based products and services that may be set forth on an Order Form or identified during the online registration process, as further described in the Documentation (but excluding Third Party Products or infrastructure); and any Maintenance and Support releases of the Cloud Products that may be made available to Customer during the relevant Subscription Term.

“Customer Apps” means the separate integrations, applications or program code that Customer creates through the permitted and contemplated use of the Software or Cloud Products (but expressly excludes Software, Cloud Products, Materials, Documentation, and all derivative works thereof, as well as deliverables and other results of Services).

“Customer Data” means Customer’s electronic data other than Log Data.

“Documentation” means the user guides and technical specification documentation generally made available by SL to its subscription customers with regard to the Software.

“Evaluation Product” means the Software and/or Cloud Products obtained under this EULA for evaluation purposes or other limited, temporary use as authorized by SL.

“Maintenance and Support” means the applicable Maintenance and Support services as provided for in a given Order Form.

“Log Data” means metadata about services in the cloud, logs, audit trail events and metrics.

“Materials” means any materials provided by SL to Customer in connection with the provision of Services under an Order Form.

“Order Form” means a SL standard ordering document referencing this Agreement and reflecting the Software licenses, Services, and Maintenance and Support (as applicable), purchased by Customer.

“Services” means professional consulting services purchased by Customer in the applicable Order Form and relating to assistance with Software or Cloud Products installation, deployment, or usage; or development or delivery of additional related software or technology.

“Software” means (i) the proprietary SL software products that are deployed on premise or available as a service and that are specified in a mutually executed Order Form or identified in the online registration process; and (ii) all related Documentation for and any Maintenance and Support releases of the same Software (but excluding Third Party Products).

“Subscription” means the Customer’s right to access and use the relevant Software or Cloud Products and Maintenance and Support on a subscription basis, as and to the extent listed on a mutually executed Order Form. In the event that an Order Form designates a right to use Software on a perpetual basis, then such Subscription shall be equivalent to a perpetual software license. In all events, Cloud Products are not offered on a perpetual basis. For Evaluation Products, the Subscription Period shall be equivalent to the evaluation period set forth in Section 2.

“Third Party Products” means online applications and offline software products that are provided by entities or individuals other than SL and that interoperate with the Software or Cloud Products.

II. LICENSE GRANT

2.1          Rights Granted

  1. Evaluation License. If Customer licenses an Evaluation Product, Customer’s use of the Evaluation Product is only permitted for the period limited by the license key provided with the Evaluation Product or otherwise stated by SL in writing. If no evaluation period is identified by the license key or in writing, then the evaluation license is valid for thirty (30) days from the date the Evaluation Product is made available to Customer. Customer will be invoiced for the list price of the Evaluation Product if Customer fails to return or stop using it by the end of the evaluation period. In all events the Evaluation Product is licensed “AS-IS” without support or warranty of any kind, expressed or implied. SL does not assume any liability arising from any use of the Evaluation Product. Customer may not publish any results of benchmark tests run on the Evaluation Product without first obtaining written approval from SL. Customer authorizes SL to use any feedback or ideas Customer provides SL in connection with Customer’s use of the Evaluation Product.
  2. Software License. Subject to the terms and conditions of this EULA and Order Form (if applicable), if and to the extent that Customer has licensed Software SL grants to Customer a non-exclusive, non-transferable, non-sublicensable, limited license to use the Software, as follows:

(i) to use the Software solely for Customer’s internal business purposes, either as specified in the Order Form if this EULA is purchased, or solely for evaluation if this EULA covers Evaluation Products, and as specified in the Documentation. Customer may not sell, license, assign, rent, lease or transfer the Software.

(ii) if this EULA covers a purchased license and not just Evaluation Products, to use the Software to generate, develop and use Customer Apps, provided that Customer Apps shall be subject to the Order Form of this EULA as such Order Form apply to the Software, including, but not limited to, the licensing and usage restrictions in this EULA.

(iii) to use the Documentation provided with the Software in support of Customer’s authorized use of the Software.

  1. Cloud Products License. Subject to the terms and conditions of this EULA and Order Form (if applicable), if and to the extent that Customer has licensed Cloud Products, SL will make the Cloud Products available to Customer pursuant to this EULA and applicable Order Forms during the Subscription Term. Customer agrees that Customer’s purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by SL regarding future functionality or features. Subject to the terms and conditions of this EULA and applicable Order Form(s), SL grants Customer a limited, worldwide, non-assignable and non-exclusive license during the relevant Subscription Term to access and use the Cloud Products. The foregoing access license is for the sole purpose of enabling Customer to use and enjoy the benefit of the Cloud Products as provided by SL, in the manner permitted by this EULA. In order to access and use the Cloud Products, Customer must have each of the following: a computing device, operating system, web browser, and Internet connection that SL supports at the time the relevant Cloud Products are accessed.
  2. Customer may not distribute and sublicense any Software (including as may be bundled with a Customer App) without having executed SL’s “Value Added Distributor Agreement,” “OEM Agreement,” or “Distributor Agreement” in conjunction with SL.
  3. The Software may be copied in whole or in part for backup purposes only if this EULA covers the purchase and not just the evaluation of the Software. Customer shall reproduce SL’s copyright and proprietary notices on such backup copy. Customer shall not sell, license, or otherwise transfer to any third party any part of the Software whether or not embodied in other programs.
  4. In the event the RTView Builder is included in the rights licensed under this EULA, its use shall be limited to customization of the Software licensed in the Order Form agreed to in writing between SL and Customer and may not be used for customization of any other software or for any other purpose.
  5. Customer agrees not to cause or permit the reverse engineering, disassembly or decompilation of the Software.

2.2          Ownership.

  1. Software and Cloud Products. Notwithstanding anything to the contrary contained herein, except for the limited license rights expressly provided under a fully paid Subscription, SL and its suppliers have and will retain all right, title and interest in and to the Software and the Cloud Products (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) and all copies, modifications and derivative works thereof. Customer acknowledges that it is obtaining only a limited license right to access and use (as the case may be) the Software or Cloud Products and that irrespective of any use of the words “purchase,” “sale,” or like terms hereunder no ownership rights are being conveyed to Customer under this EULA or otherwise. In addition, SL will have a royalty-free, worldwide, irrevocable, perpetual license to use for any purpose any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the Software or Cloud Products.
  2. Services Work Product. Customer shall have a license right to use or access any work product delivered as part of the Services, solely for its internal business purposes and solely in connection with (as the case may be) the Software or Cloud Products regarding which the Services were commissioned. Other than the limited license described in the prior sentence, SL shall retain all right, title and interest in and to any such Services work product and results and any derivative, enhancement or modification thereof.
  3. Materials. Customer agrees and acknowledges that Customer is not obtaining any intellectual property or other rights in or to the Materials, other than the rights of use specifically granted in this EULA. Customer will be entitled to retain and use all Materials provided to Customer solely in connection with Customer’s permitted use of (as the case may be) the Software or Cloud Products, but without any other license to exercise any of the intellectual property rights therein, all of which are hereby strictly reserved to SL. In particular and without limitation, Materials may not be copied electronically or otherwise whether or not for archival purposes, modified including translated, re-distributed, disclosed to third parties, lent, hired out, made available to the public, sold, offered for sale, shared, or transferred in any other way. All SL trademarks, trade names, logos and notices present on the Materials will be preserved and not deliberately defaced, modified or obliterated except by normal wear and tear. Customer shall not use any SL trademarks without SL’s express written authorization.
  4. Customer Apps; Customer Data and Log Data. Subject to all of SL’s rights under Section 2.2(A)-(C), Customer shall own all right, title and interest in and to the Customer Apps. In addition, Customer retains all right, title and interest in and to the Customer Data and Log Data. Notwithstanding the foregoing, SL may freely use the Log Data as part of its efforts to improve and analyze the performance of the Software and the Cloud Products, solely on a generic, aggregate basis along with SL’s use of similar data from all of its customers.

2.3          Reference. Upon finalization of this EULA for purchase, not merely evaluation, SL may reference Customer as a customer and may use Customer’s logo on the SL web site and on the SL customer list.

2.4          Third Party Products. Under this Agreement, SL provides only the Software, the Cloud Products, and Services and Maintenance and Support with respect to each of the Software and Cloud Products. SL does not provide any warranty on, and does not provide Maintenance and Support on, the Customer Apps. As a non-exclusive example, in order for Customer effectively to use Customer Apps, Customer may need to license, modify and install Third Party Products. SL may provide Customer with links and instructions for obtaining Third Party Products or provide access to them (e.g., through SL cloud connectors), but it is Customer’s sole responsibility to properly license and install any required Third Party Products from the relevant third party providers. To the extent that SL offers certain Third Party Products bundled and offered for Customer’s convenience (such as Java or Apache Tomcat), such Third Party Products will be identified as such in the Documentation and will be licensed directly from such third party providers to Customer under the terms of its applicable license agreements. SL will have no liability with respect to any Third Party Products, whether or not they are “certified” by SL.

2.5          After initial deployment of the Software within the Customer’s organization, Customer may not transfer the Software among computers or locations without SL’s consent and the execution of SL’s standard “Transfer Agreement,” except as otherwise set forth in the Order Form.

2.6          Transfer and Assignment. Customer may not assign this EULA, in whole or in part, to a legal entity separate from Customer without the prior written consent of SL. Any authorized transferee or assignee of the Software or this EULA shall be bound by and subject to all of the Order Form and provisions of this EULA. Any attempted assignment, transfer, sublicense, encumbrance or security interest in breach of this clause shall be void and of no effect.

2.7          Verification. At SL’s written request, not more frequently than once annually, Customer shall furnish SL with a signed certification verifying that the Software is being used pursuant to the provisions of this EULA and certifying such other verification information and details as SL may request. SL may audit Customer’s use of the Software. Any such audit shall be conducted during regular business hours at Customer’s facilities and shall not unreasonably interfere with Customer’s business activities. If an audit reveals that Customer has underpaid fees to SL, Customer shall be invoiced for such underpaid fees. Such audits shall be at SL’s expense unless fees have been underpaid by 10% or more, in which case Customer shall pay for all expenses associated with the audit and all adjustments in fees due. Audits shall be conducted no more than once annually.

2.8          Customer Indemnity. Customer will defend and indemnify SL against any loss, claim, damage or similar cost arising from Customer’s breach of this Agreement or use of the Software or Customer Apps, including without limitation legal expenses and court costs; provided that:

(a) SL notifies Customer in writing of the claim; and

(b) SL provides Customer with the assistance, information, and authority necessary to perform Customer’s obligations under this Section. In addition, Customer will reimburse SL’s reasonable out-of-pocket expenses incurred in providing such assistance.

III. CONFIDENTIALITY

By virtue of this Agreement, the parties may have access to information that is confidential, proprietary or a trade secret of the other party (“Confidential Information”). A party’s Confidential Information shall not include information that:

(a) is or becomes a part of the public domain through no act or omission of the other party;

(b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party;

(c) is lawfully disclosed to the other party by a third party without restriction on disclosure; or

(d) is independently developed by the other party. Unless the parties have entered into a separate written confidentiality agreement, the parties agree to hold each other’s Confidential Information in confidence as described in this Agreement. The parties agree, unless required by law, not to make each other’s Confidential Information available in any form to any third party for any purpose other than the implementation of this Agreement. Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of the Order Form of this Agreement.

IV. TERM AND TERMINATION

4.1          Term. If Customer enters into this EULA in connection with a purchased license of Software and/or Cloud Products, this EULA shall continue for the Subscription Term, or perpetually, as identified in the Order Form unless terminated under this Article IV. If the Customer enters into this EULA for use of Evaluation Products but does not purchase the Software, this EULA and the use of the Software shall automatically terminate upon expiration of the evaluation period as set forth in Section 2.1 unless Customer requests and SL agrees, in writing, to extend the term of this EULA to a period of time mutually agreed upon between the parties.

4.2          Termination by Customer. Customer may terminate any license under this EULA at any time upon at least 30 days prior written notice to SL; however, termination shall not relieve Customer’s obligations specified in Section 4.4.

4.3          Termination by SL. SL may terminate this EULA, in whole or in part, 30 days after written notice if Customer materially breaches this EULA, the breach is remediable, and Customer fails to correct the breach within such 30-day period.

4.4          Effect of Termination. Termination of this EULA shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Customer’s obligation to pay all fees that have accrued or are otherwise owed by Customer. Upon termination, Customer shall immediately cease using, and shall immediately return all copies of the applicable Software.

V. WARRANTIES, REMEDIES

5.1 Warranty and Disclaimers

  1. Performance Warranty. Except for Evaluation Products (as set forth in Section 2.1), SL warrants that unmodified Software and Cloud Products will perform the functions in material accordance with the Documentation when used in accordance with the Documentation. This warranty shall be valid for 30 days from the date of delivery of the Software.
  2. Disclaimers. SOFTWARE AND CLOUD PRODUCTS SUPPLIED UNDER THIS EULA ARE FURNISHED “AS IS”. SL DOES NOT WARRANT THAT THE SOFTWARE OR CLOUD PRODUCTS WILL MEET CUSTOMER’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION OR BE ERROR-FREE. SL DISCLAIMS WITHOUT LIMITATION ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN PARAGRAPH 5.1A. IF ANY RISK IS SUSPECTED FROM INSTALLATION OR USE OF THE SOFTWARE, THE LIABILITY IS ASSUMED ENTIRELY BY THE CUSTOMER. IN NO EVENT WILL SL BE LIABLE FOR DAMAGES TO PROPERTY OR ANY DAMAGES RESULTING FROM LOSS OF DATA, PROFITS OR OTHER PRODUCT USE OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS EULA OR CAUSED BY THE USE OF OR INABILITY TO USE THE SOFTWARE OR FOR ANY ERROR OR DEFECT IN THE SOFTWARE, CLOUD PRODUCTS OR DOCUMENTATION, EVEN IF SL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF SL’S LIABILITY WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR TORT INCLUDING NEGLIGENCE. SL’S LIABILITY FOR DAMAGES HEREUNDER SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER UNDER THIS EULA, AND IF SUCH DAMAGES RESULT FROM CUSTOMER’S USE OF SOFTWARE OR SERVICES, SUCH LIABILITY SHALL BE LIMITED TO FEES PAID FOR THE RELEVANT SOFTWARE OR SERVICES GIVING RISE TO THE LIABILITY. THE PROVISIONS OF THIS EULA ALLOCATE THE RISKS BETWEEN SL AND CUSTOMER. SL’S PRICING REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN.
  3. Exclusive Remedies. For breach of the warranty contained in Section 5.1A, Customer’s exclusive remedy, and SL’s entire liability, shall be the correction of Software errors that cause the non-conformity, or if SL is unable to make the Software operate as warranted within a reasonable period of time, Customer shall be entitled to terminate the EULA and recover the fees paid to SL under this EULA.

VI. GENERAL TERMS

6.1          Controlling Law. This EULA, and all matters arising out of or relating to this EULA, shall be governed by the laws of the State of California. Any legal action or proceeding relating to this EULA shall be instituted in a state or federal court in San Francisco County, California. SL and Customer agree to submit to the jurisdiction of, and agree that venue is proper in, these courts in any such legal action or proceeding. Customer hereby agrees that the United Nations Convention on Contracts for the International Sale of Goods (1980) is hereby excluded in its entirety from application to this EULA.

6.2          Export Administration. Customer agrees to comply fully with all relevant export laws and regulations of the United States (“Export Laws”) to ensure that the Software is not (1) exported, directly or indirectly, in violation of Export Laws; or (2) intended to be used for any purposes prohibited by the Export Laws, including, without limitation, nuclear, chemical, or biological weapons proliferation.

6.3          United States Government Rights. All technical data and the Software is commercial in nature and developed solely at private expense. The Software is delivered as Commercial Computer Software as defined in DFARS 252.227-7014 (June 1995) or as a commercial item as defined in FAR 2.101(a) and as such is provided with only such rights as are provided in this EULA, which is SL’s standard commercial license for the Software. Technical data is provided with limited rights only as provided in DFAR 252.227-7015 (Nov 1995) or FAR 52.227-14 (June 1987), whichever is applicable. Customer may not remove or deface any portion of any legend provided on the Software.

6.4          Entire Agreement. This EULA constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this EULA. This EULA may not be modified or amended except in a writing signed by a duly authorized representative of each party; no other act, document, usage or custom shall be deemed to amend or modify this EULA.

6.5          Conflict. In the event of any conflict between the provisions of this Agreement and the Order Form, the Order Form shall prevail.

6.6          Survival. The parties’ rights and obligations under Sections 2.8, 4.4, and VI shall survive termination or expiration of this Agreement.

The software you are about to download is subject to export control laws and regulations. By downloading this software, you agree that you will not knowingly, without prior written authorization from the competent government authorities, export or re-export – directly or indirectly – any software downloaded from this website to any prohibited destination, end-user, or end-use.h