NComputing vSpace Management Center End User License Agreement
Contents
1. EULA then such rights in the applicable Open Source Software license shall take precedence over the rights and restrictions granted in this EULA but solely with respect to such Open Source Software and solely to the extent of such inconsistency You acknowledge that the Open Source Software license is solely between you and the applicable licensor of the Open Source Software You shall comply with the terms of all applicable Open Source Software licenses 8 REGISTRATION AND VALIDATION a NComputing requires that each Management Center License Key be registered and validated online Validation of your Management Center License Key in the manner described during its installation and setup with the applicable key code is required in order for the Management Software to manage Client Devices Validation verifies that the Management Center License Keys have been activated and are properly licensed and is necessary to use certain features of the Management Software b The Management Software and Management Center License Keys may from time to time also require re validation in order to confirm that such Management Center License Keys are still properly licensed During the registration and validation processes the Management Software will send information relating to the Management Software Management Center License Key s Client Devices and Licensed Server s to NComputing This information includes but is not limited to the version and2. key code of the Management Center License Keys the Internet protocol address of the Licensed Server s and other information provided by the end user of the Management Software If during the validation process the Management Software and or Management Center License Key s are found not to be properly licensed or registered the functionality of the Management Software may be affected For example you may need to reactivate the Management Center License Key s or receive reminders to obtain and activate proper and valid Management Center License Keys and you may not be able to use or continue to use some or all of the features of the Management Software or obtain certain updates to the Management Software from NComputing 9 UPDATE SERVICES NComputing may make use of Internet based services in the Management Software the Update Services to deliver to you Updates as defined below and or notifications in connection with the Management Software NComputing reserves the right to change its method of delivering the Update Services at any time You must not interfere in any way with the Update Services NComputing shall not be responsible for any errors in the Management Software or the Management Center License Keys that would have been fixed by Updates to the Management Software that NComputing attempted to provide but that were not applied because of interference with the Update Services a From time to time NCo
3. of control or a sale of all or substantially all of NComputing s stocks or assets Subject to the foregoing this EULA shall bind and inure to the benefit of each party s successors and permitted assigns NO WAIVER Any waiver of any right or remedy by NComputing is not valid and effective unless and to the extent that it is express and in writing that states such right and remedy to be waived Selection by NComputing of a specific remedy does not constitute and shall not be interpreted to 20 21 constitute a waiver of any other remedy of NComputing and NComputing s failure to select a specific remedy does not constitute and shall not be interpreted to constitute a waiver of such remedy SEVERABILITY Should any section or portion thereof of this EULA be held invalid by reason of any law existing now or in the future in any jurisdiction by any court of competent authority or by a legally enforceable directive of any governmental body such section or portion thereof shall be validly reformed so as to approximate the intent of the parties as nearly as possible and if unreformable shall be deemed divisible and deleted with respect to such jurisdiction this EULA shall not otherwise be affected INTEGRATION This EULA constitutes the entire understanding of the parties and revokes and supersedes all prior agreements oral or written between the parties and is intended as a final expression of their agreement regarding the sub
4. EMENTS YOU ACKNOWLEDGE AND AGREE THAT PERFORMANCE OF THE MANAGEMENT SOFTWARE MAY VARY DEPENDING ON THE LICENSED SERVER CLIENT DEVICE THE SOFTWARE PROGRAMS RUNNING ON THE FOREGOING INCLUDING THE MANAGEMENT SOFTWARE AND THE BANDWIDTH AND CONFIGURATION OF THE NETWORK CONNECTING THEM LIMITATION OF LIABILITY EXCEPT TO THE EXTENT THAT LIABILITY MAY NOT BY LAW BE LIMITED OR EXCLUDED IN NO EVENT WILL NCOMPUTING OR ITS SUPPLIERS BE LIABLE FOR LOSS OR CORRUPTION OF DATA LOST PROFITS OR LOSS OF CONTRACTS COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR OTHER SPECIAL INCIDENTAL PUNITIVE CONSEQUENTIAL OR INDIRECT DAMAGES ARISING FROM THE SUPPLY OR USE OF THE MANAGEMENT SOFTWARE HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY INCLUDING WITHOUT LIMITATION NEGLIGENCE THIS LIMITATION WILL APPLY EVEN IF NCOMPUTING OR AN AUTHORIZED DISTRIBUTOR OF NCOMPUTING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN NO EVENT SHALL NCOMPUTING S OR ITS SUPPLIERS LIABILITY EXCEED THE AMOUNT PAID BY YOU FOR THE AFFECTED 15 16 17 18 19 MANAGEMENT SOFTWARE YOU ACKNOWLEDGE AND AGREE THAT THIS PROVSION REFLECTS A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES COMPLIANCE WITH LAW You agree to use the Management Software solely in accordance with and within the limits permitted by applicable laws rules regulations and orders You acknowledge and agree that th
5. END USER LICENSE AGREEMENT FOR VSPACE MANAGEMENT CENTER IMPORTANT READ THIS CAREFULLY THIS IS A LEGAL AGREEMENT BETWEEN YOU AND NCOMPUTING INC NCOMPUTING YOU MUST CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT EULA IN ITS ENTIRETY BEFORE INSTALLING OR USING THE NCOMPUTING VSPACE MANAGEMENT CENTER SOFTWARE IN ANY WAY BY CLICKING ON THE ACCEPT BUTTON PRESENTED IN CONNECTION WITH THIS EULA OR BY INSTALLING OR USING THE NCOMPUTING VSPACE MANAGEMENT CENTER SOFTWARE YOU ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS EULA IF YOU ARE AN INDIVIDUAL AGREEING TO THE TERMS OF THIS EULA ON BEHALF OF AN ENTITY SUCH AS YOUR EMPLOYER YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ENTITY TO THE TERMS OF THIS EULA IF YOU DO NOT HAVE SUCH AUTHORITY OR IF YOU DO NOT AGREE WITH THE TERMS OF THIS EULA THEN PLEASE EXIT THIS PAGE WITHOUT CLICKING ON THE ACCEPT BUTTON DO NOT INSTALL OR USE THE NCOMPUTING VSPACE MANAGEMENT CENTER SOFTWARE AND IMMEDIATELY DELETE THE NCOMPUTING VSPACE MANAGEMENT CENTER SOFTWARE FROM THE COMPUTER ON WHICH IT WAS COPIED OR DOWNLOADED BY DOING SO YOU FOREGO ANY IMPLIED OR STATED RIGHTS TO INSTALL OR USE THE NCOMPUTING VSPACE MANAGEMENT CENTER SOFTWARE 1 OVERVIEW The terms and conditions set forth in this EULA apply to the NComputing vSpace Management Center software the Management Software This E
6. M EXTENT PERMITTED BY APPLICABLE LAW THE WARRANTIES EXPRESSLY STATED HEREIN ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES WHETHER IMPLIED STATUTORY OR OTHERWISE INCLUDING THE WARRANTIES OF MERCHANTABILITY NON INFRINGEMENT TITLE FITNESS FOR A PARTICULAR PURPOSE OR SATISFACTORY QUALITY WHICH NCOMPUTING SPECIFICALLY DISCLAIMS FOR ITSELF AND ON BEHALF OF ITS SUPPLIERS TOGETHER WITH ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE IN TRADE NO ADVICE OR INFORMATION WHETHER ORAL OR WRITTEN OBTAINED FROM NCOMPUTING OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES SO THE DISCLAIMER OF IMPLIED WARRANTIES ABOVE MAY NOT APPLY TO YOU IN WHICH CASE THE DURATION OF ANY SUCH IMPLIED WARRANTIES SHALL BE LIMITED TO NINETY 90 DAYS FROM THE DATE YOU PURCHASED THE MANAGEMENT SOFTWARE PROVIDED HOWEVER THAT IN SUCH CASE NCOMPUTING S OR ITS SUPPLIERS SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR BREACH OF SUCH IMPLIED WARRANTIES SHALL IN ANY CASE BE AT NCOMPUTING S OPTION i TO REPAIR OR REPLACE THE MANAGEMENT SOFTWARE TO CONFORM IT TO SUCH APPLICABLE WARRANTY OR ii TO TERMINATE THIS EULA AND RETURN THE AMOUNT PAID BY YOU FOR THE AFFECTED MANAGEMENT SOFTWARE NCOMPUTING DOES NOT WARRANT THAT THE OPERATION OF THE MANAGEMENT SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT THE MANAGEMENT SOFTWARE WILL MEET YOUR SPECIFIC REQUIR
7. R OF WARRANTIES NComputing warrants that the Management Software and any Updates thereto will perform substantially in accordance with the applicable user documentation for a period of ninety 90 days from the date of your purchase of the Management Software the Limited Warranty NComputing s and its suppliers sole liability and your exclusive remedy for any breach of this Limited Warranty or for breach of any other warranty related to the performance of the Management Software shall be at NComputing s option i to terminate this EULA and return the amount paid by you for the affected Management Software or ii to repair or replace the Management Software to make it perform substantially in accordance with the Limited Warranty This Limited Warranty shall not apply i if you make any unauthorized modifications to the Management Software or misuse abuse of the Management Software ii if you 14 use the Management Software for purposes other than its intended use or ii if you violate any terms and conditions of this EULA NComputing and its suppliers make no warranties and provide no remedies in connection with any defects discovered after the ninety day Limited Warranty period EXCEPT FOR THE LIMITED WARRANTY PROVIDED ABOVE THE MANAGEMENT SOFTWARE INCLUDING WITHOUT LIMITATION ANY OPEN SOURCE SOFTWARE INCORPORATED THEREIN OR PROVIDED THEREWITH AND ANY ACCOMPANYING DOCUMENTATION ARE PROVIDED AS IS TO THE MAXIMU
8. ULA supersedes all other licensing terms for the Management Software Updates to the Management Software provided by NComputing through Internet based services or other means are also subject to this EULA unless other terms accompanying those updates explicitly supersede or amend this EULA Installing and using the Management Software does not enable you to manage Client Devices as defined below without purchase of Management Center License Keys as defined below as further described herein 2 DEFINITIONS For the purposes of this EULA The following terms shall have the following meanings a Client Device means an NComputing client device that is managed by the Management Software b Licensed Server means a physical or virtual machine on which the Management Software is installed for the management of one or more Client Devices c Management Center License Key means a license key that you must purchase from NComputing or one of its authorized resellers and install via a key code on the Licensed Server Such Management Center License Key enables the Management Software installed on the Licensed Server to manage Client Devices that have established management connections to the Management Software over one or more networks d Open Source Software means any software or software component module or package that contains or is derived in any manner in whole or in part from any software that is distributed as f
9. e Management Software may be subject to the jurisdiction of the U S Export Administration Regulations the EAR Title 15 of the U S Code of Federal Regulations Part 730 et seq and U S trade embargo regulations Title 31 of the U S Code of Federal Regulations Part 500 et seq You warrant represent and covenant that any Management Software any documentation therefore or any part thereof will not be a re exported sold or otherwise transferred by you to countries outside of the United States of America in violation of the EAR or any other U S law or b made available by you to any person or country outside the United States of America or to any person that you know or have reason to suspect will cause any Management Software such documentation or any part or information thereof to be made available outside the United States of America in violation of the EAR or any other U S law or c re exported sold or otherwise transferred to or made available by you to persons or countries within the United States if such a re exportation sale transfer or making available would violate the EAR or any U S law GOVERNMENT RIGHTS The Management Software and any other NComputing software covered under this EULA are commercial items as that term is defined at 48 C F R 2 101 consisting of commercial computer software and commercial computer software documentation as such terms are used in 48 C F R 12 212 Consiste
10. ject matter of this EULA other than any document expressly incorporated herein by reference It shall not be modified or amended except in writing signed by the parties hereto and specifically referring to this EULA YOU HEREBY ACKNOWLEDGE THAT YOU HAVE READ THIS EULA UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS
11. mputing may at its own discretion create updates and or patches hereinafter collectively referred to as Updates to the Management Software Updates may include support for and compatibility with operating system updates or service packs bug fixes and incremental improvements Updates do NOT include major upgrades to the Management Software which may contain major feature additions support for previously unsupported operating systems or support for new hardware products such major upgrades constitute new software for which NComputing may charge additional fees and which may or may not be made available via the Update Services If available you may obtain Updates at no additional charge within one 1 year after the date of your purchase of the applicable Management Center License Key s provided that you have properly registered such Management Center License Key s After one year from the date of your purchase NComputing may make further updates available to you for an additional fee per its Support and Subscription SnS Terms and Conditions You may obtain Updates only from NComputing or its authorized sources The Management Software is designed to be compatible with currently supported operating systems and server hardware Notwithstanding the foregoing NComputing does not warrant 10 11 12 13 and or represent that the Management Software will be compatible with any operating systems applications hardware o
12. nstances for a Management Center License Key has exceeded five 5 then you must first contact NComputing Technical Support to enable re use of that Management Center License Key You may then install the Management Software and the Management Center License Key s on the upgraded or new Licensed Server and then activate the Management Center License Key s via the key codes provided to you by NComputing during registration process You may reassign a Management Server License Key in this manner no more than five 5 times after the initial five 5 installation instances for that Management Server License Key have been used 7 THIRD PARTY SOFTWARE You hereby acknowledge that the Management Software may contain Open Source Software All Open Source Software contained in or provided with the Management Software is identified online along with the applicable Open Source Software licenses at http www ncomputing com support open source vSpaceManagementCenter Copyrights and other proprietary rights to such Open Source Software are held by the copyright holders identified in the applicable Open Source Software licenses and all Open Source Software is distributed to you under the applicable Open Source Software licenses To the extent any such Open Source Software license requires that NComputing provide You such rights to copy modify distribute or otherwise use any Open Source Software that are inconsistent with the limited rights granted to You in this
13. nt that such activities may not be prohibited under applicable law or e make more copies of the Management Software or Management Center License Keys than expressly permitted in this EULA e publish the Management Software or Management Center License Keys for others to copy or e rent lease distribute lend sublicense modify or create derivative works based on the Management Software or any part thereof or grant to any third party any rights in the Management Software and its accompanying documentation or any modifications of any of the foregoing without the prior written consent of NComputing 5 OWNERSHIP The Management Software is licensed not sold NComputing reserves all rights not expressly granted herein All intellectual property rights in and to the Management Software including without limitation all patents copyrights trademark trade secret and other proprietary rights of any kind remain solely the property of NComputing or its licensors 6 REINSTALLATION OR TRANSFER OF MANAGEMENT CENTER LICENSE KEY S You may reassign the Management Center License Key s from one Licensed Server to an upgraded or repaired version of the same Licensed Server e g in the event of an operating system re installation or to a new Licensed Server provided that you first uninstall and delete the Management Software and Management Center License Key s from the original Licensed Server In either case if your total number of installed i
14. nt with 48 C F R 12 212 and 48 C F R 227 7202 1 through 227 7202 4 all U S Government end users acquire the Management Software and any other NComputing software and documentation covered under this EULA with only those rights set forth herein JURISDICTION AND DISPUTES This EULA will be governed by the laws of the State of California without regard to its conflicts of law provisions The 1980 U N Convention on Contracts for the International Sale of Goods shall not apply to this EULA All disputes hereunder shall be resolved in the courts subject to the exclusive jurisdiction of the state and federal courts located in Santa Clara County California The parties hereto consent to the jurisdiction of such courts agree to accept service of process by mail and waive any jurisdictional or venue defenses otherwise available ASSIGNMENT You may not transfer assign or delegate any of your rights or obligations under this EULA in whole or in part whether voluntarily by operation of law by merger or sale of all or substantially all of your stock or assets or otherwise without the prior written consent of NComputing Any purported transfer assignment or delegation by You without such prior written consent shall be null and void NComputing has the right to transfer assign or delegate any of its rights or obligations under this EULA to one or more third parties without Your consent including through reorganization reincorporation merger change
15. r software or any updates or upgrades thereto If you upgrade your operating system applications hardware or software NComputing will not be liable for any problems that may occur as a result of an incompatibility between the Management Software and any such upgraded hardware or software product f You may not use these Update Services in any way that could harm them or impair anyone else s use of the Management Software and or the Update Services You may not use these Update Services to try to gain unauthorized access to the Management Software any Licensed Server s or Client Device s or any service data or network REQUIREMENTS FOR ADDITIONAL SOFTWARE LICENSES Additional third party licenses may be required for some operating systems and software applications to be used with the Management Software Check each of your end user license agreements for the foregoing to determine if such additional licenses are required NComputing is under no obligation to advise consult or otherwise provide guidance to you regarding any third party software licensing You shall indemnify and hold NComputing and its distributors harmless from any and all claims damages costs liabilities etc arising from your improper or unauthorized use of the Management Software and or any third party software DATA USE RIGHTS You acknowledge and agree that NComputing may collect and use any information generated by the Management Software including but not limited
16. re that only allow you to use it in certain ways The Management Software must be used with one or more Management Center License Keys that are installed via a key code on a Licensed Server Each unique Management Center License Key may be installed on up to five 5 Licensed Servers and may not be copied reproduced or duplicated onto other systems Each Management Center License Key installed on a Licensed Server entitles a fixed number of Client Devices to be managed concurrently by the Management Software Additional Management Center License Keys added to a Licensed Server will automatically sum to enable extending the number of Client Devices that can be concurrently managed Furthermore you may not e use the Management Software on any devices or products other than those that you or your business organization own or have a valid legal right to use e use the Management Software on any devices other than Licensed Servers e modify translate reverse engineer decompile disassemble or otherwise attempt i to defeat avoid bypass remove deactivate or otherwise circumvent any software protection mechanisms in the Management Software including without limitation any such mechanism used to restrict or control the functionality of the Management Software or ii to derive the source code or the underlying ideas algorithms structure or organization from the Management Software except that the foregoing limitation does not apply to the exte
17. ree software open source software or similar licensing or distribution models including without limitation software licensed or distributed under any of the following licenses or distribution models or licenses or distribution models similar to any of the following a GNU s General Public License GPL or Lesser Library GPL LGPL b the Artistic License e g PERL c the Mozilla Public License d the BSD License and e the Apache License e You or you means the company entity or individual who enters into this EULA and has rightfully acquired the Management Software and the accompanying Management Center License Key s INSTALLATION AND USE LICENSE Subject to the terms and conditions set forth in this EULA and conditional upon your compliance therewith NComputing grants You a limited non exclusive license to i download install and use the Management Software on a Licensed Server on which one or more Management Center License Key has been installed solely to manage Client Devices and ii make copies of the Management Software as reasonably necessary to exercise the foregoing rights provided that You reproduce unaltered all proprietary notices on or in any such copies LICENSE RESTRICTIONS Unless applicable law gives You more rights despite the limitations in this EULA You may use the Management Software only as expressly permitted herein You must comply with any technical limitations in the Management Softwa
18. to error reports connection logs and other reports related to the Management Software and its usage and maintenance to improve NComputing s software and services NComputing may also share such information with third parties such as other hardware and software vendors who may use it to improve their own products and services TERM AND TERMINATION This EULA will remain in effect until terminated Unauthorized copying of the Management Software or failure to comply with the terms of this EULA will result in automatic termination of this EULA and all licenses granted herein and will make available to NComputing other legal remedies This EULA and all licenses granted herein will automatically terminate if You go into liquidation suffer or make any winding up petition make an arrangement with Your creditors or suffer or file any similar action in any jurisdiction in consequence of debt This EULA and all licenses granted herein may also be terminated by NComputing as set forth in Section 13 below Upon any termination of this EULA You shall cease all use of and destroy all of your copies of the Management Software Notwithstanding the expiration or termination of this EULA it is acknowledged that those rights and obligations that by their nature are intended to survive such expiration or termination will survive including without limitation the disclaimers of warranties and limitations of liability provided herein LIMITED WARRANTY DISCLAIME
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