BEFORE USING APPDYNAMICS LITE, NODETIME, APPDYNAMICS PRO ON A LIMITED 15-DAY TRIAL BASIS OR ANY OTHER PRODUCTS THAT MAY BE MADE AVAILABLE BY APPDYNAMICS ON AN EVALUATION OR EARLY ACCESS BASIS (AS APPLICABLE, WHETHER DOWNLOADED OR AVAILABLE ONLINE, THE “SOFTWARE”), PLEASE READ THIS EVALUATION END USER LICENSE AGREEMENT (THIS “EVALUATION EULA”), WHICH CONSTITUTES A BINDING AND EXECUTED WRITTEN AGREEMENT BETWEEN THE COMPANY OF WHICH YOU ARE A DULY AUTHORIZED EMPLOYEE OR AGENT AS THE PARTY ACCESSING THE SOFTWARE (“END USER”) AND APPDYNAMICS, INC. (“APPDYNAMICS”).
PLEASE NOTE: IF YOU HAVE AN EXISTING, SEPARATE AGREEMENT WITH APPDYNAMICS WITH RESPECT TO ANY APPDYNAMICS’ PRODUCTS OR SERVICES, THIS EVALUATION EULA DOES NOT SUPERSEDE SUCH AGREEMENT WITH RESPECT TO THOSE PRODUCTS OR SERVICES.
1. Access to Software; Term.
(a) Subject to the terms and conditions of this Evaluation EULA, AppDynamics hereby grants End User, during the Term (as defined below), a non-exclusive, non-transferable, non-sublicenseable, limited right to use and/or access the Software for its internal business purposes only, solely in accordance with the License Key (as defined below) provided to End User. End User may use the number and type of licenses authorized in writing by AppDynamics or indicated on AppDynamics’ website prior to End User’s downloading the Software, which will be enabled by End User’s specific license key provided by AppDynamics to End User for the Software (“License Key”). AppDynamics has the right to immediately terminate this Agreement if AppDynamics determines that the License Key has caused an error in permitting access to any component of the Software, even if such error is not due to End User’s act or omission. This Evaluation EULA does not entitle End User to any technical support with respect to the Software, but any such support provided by AppDynamics in its sole discretion shall be subject to this Evaluation EULA.
(b) The “Term” (unless earlier terminated in accordance with this Evaluation EULA) is either (a) if End User is using AppDynamics Lite, that period of time from End User’s download of AppDynamics Lite until End User receives written notice of termination of this Evaluation EULA from AppDynamics, or (b) if End User is using AppDynamics Pro on a limited 15-day trial basis, that period of time from End User’s download of AppDynamics Pro until 15 days after such download, or (c) with respect to any other product, until the expiration of the period of time authorized by AppDynamics in writing and as enabled by the applicable License Key.
(a) End User shall not: (i) sublicense, sell, resell, transfer, assign, distribute, share, lease, rent, make any external commercial use of, outsource, use on a timeshare or service bureau, or use in its own application service provider or managed service provider environment, or otherwise generate income from the Software; (ii) copy the Software (other than as necessary for installation) (iii) copy the Software onto any public or distributed network, except for an internal and secure cloud computing environment; (iv) use the Software if End User is a competitor of AppDynamics, (v) use any portion of the Software as a general SQL server, as a stand-alone application or with applications other than the Software as provided; (vi) cause or permit the decompiling, disassembly, or reverse engineering of any portion of the Software, or attempt to discover or permit the discovery of any source code or other operational mechanisms of the Software; (vii) modify, adapt, translate or create derivative works, nor allow any of those actions to occur, based on all or any part of the Software; (viii) use any portion of any downloadable Software as a general SQL server, as a stand alone application or with applications other than the Software as provided; (ix) modify any proprietary rights notices which appear in the Software or components thereof; (x) disclose any Software to a third party, including without limitation, any competitor of AppDynamics, or use or permit the use of any Software for any competitive purpose; (xi) use any Software in violation of any applicable laws and regulations or outside of the license scope set forth in Section 1, or (xii) export or re-export any Software or technical data or any copy, portions or direct product thereof (a) in violation of any such laws and regulations, (b) without all required authorization into Cuba, Libya, North Korea, Iran, Iraq, or Rwanda or any other Group D:1 or E:2 country (or to a national or resident thereof); specified in the then current Supplement No. 1 to part 740 of the U.S. Export Administration Regulations (or any successor supplement or regulations) or (c) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders. End User shall, at its own expense, obtain all necessary customs, import, or other governmental authorizations and approvals. End User agrees to indemnify and hold AppDynamics and its affiliates and their officers, employees, directors and agents harmless from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to End User’s use of the Software or End User’s violation of this Evaluation EULA.
(b) End User shall notify AppDynamics immediately of any unauthorized use of any password or account or any other known or suspected breach of security or misuse of the Software. End User is responsible for use of the Software by any and all employees, contractors, or other users that it allows to access the Software.
(a) Scope and Restrictions. "Confidential Information" means all information of a party ("Disclosing Party") disclosed to the other party ("Receiving Party") that is designated in writing or identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential due to the nature of the information disclosed and the circumstances surrounding the disclosure. This Evaluation EULA, any technical or other documentation relating to the Software, logins, passwords and other access codes and any and all information regarding AppDynamics’ business, products and services are the Confidential Information of AppDynamics. The Receiving Party will: (i) not use the Disclosing Party’s Confidential Information for any purpose outside of this Agreement; (ii) not disclose such Confidential Information to any person or entity, other than its (a) employees who have a “need to know” for the Receiving Party to exercise its rights or perform its obligations hereunder and (b) professional advisers, and actual or prospective investors, provided that such employees, investors, acquirers and professional advisers are bound by agreements or, in the case of professional advisers, ethical duties respecting such Confidential Information in accordance with the terms of this Section 3; and (iii) use reasonable measures to protect the confidentiality of such Confidential Information. If the Receiving Party is required by applicable law or court order to make any disclosure of such Confidential Information, it will first give written notice of such requirement to the Disclosing Party, and permit the Disclosing Party to intervene in any relevant proceedings to protect its interests in its Confidential Information, and provide full cooperation to the Disclosing Party in seeking to obtain such protection. Further, this Section 3 will not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt; (ii) is or has become public knowledge or publicly available through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information.
(b) Equitable Relief. The Receiving Party acknowledges that unauthorized disclosure of Confidential Information could cause substantial harm to the Disclosing Party for which damages alone might not be a sufficient remedy and, therefore, that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law or equity.
4. Proprietary Rights. AppDynamics and its suppliers own and shall retain all intellectual property and other proprietary rights in and to the Software. End User acknowledges that the licenses granted under this Evaluation EULA do not provide End User with title to or ownership of the Software. To the extent the Software is shipped to End User, certain “free” or “open source” based software (“FOSS Software”) is shipped with the Software but is not considered part of the Software hereunder. A list of such FOSS Software and their download locations are set forth on the webpage located at www.appdynamics.com/open-source. End User’s use of such FOSS Software is subject to the terms of the licenses set forth on such webpage. Further, if End User provides AppDynamics any feedback, ideas, concepts or suggestions about the Software or AppDynamics’ business, technology or Confidential Information (“Feedback”), End User grants AppDynamics, without charge, the fully paid-up, irrevocable right and license to use, share, commercialize and otherwise fully exercise and exploit such Feedback and all related rights (and to allow others to do so) in any way.
5. Fees: To the extent the Software or any portion thereof is made available for any fee (for example, subscriptions to Nodetime), End User will be required to select a payment plan and provide AppDynamics information regarding End User’s credit card or other payment instrument. End User represents and warrants to AppDynamics that such information is true and that End User is authorized to use the payment instrument. End User will promptly update its account information with any changes (for example, a change in billing address or credit card expiration date) that may occur. End User agrees to pay AppDynamics the amount that is specified in the payment plan in accordance with the terms of such plan and this Evaluation EULA. If use of the Software requires payment of any fees, then End User hereby authorizes AppDynamics to bill End User’s payment instrument in advance on a periodic basis in accordance with the terms of the applicable payment plan until this Evaluation EULA is terminated or expires, and End User further agrees to pay any charges so incurred. If End User disputes any charges End User must let AppDynamics know within thirty (30) days after the date that AppDynamics charges End User. AppDynamics reserve the right to change AppDynamics’ prices at the end of End User’s applicable subscription term. If AppDynamics does change prices, AppDynamics will update the prices on the AppDynamics’ website or provide notice by email to End User, at AppDynamics’ option, before the change is to take effect. End User’s continued use of the Software after the price change becomes effective constitutes End User’s agreement to pay the changed amount. AppDynamics may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by AppDynamics thirty (30) days after the date of the invoice, or use of the Software may be terminated. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. End User’s who pay any fees for the Software shall be responsible for all taxes associated with such use of the Software, other than U.S. taxes based on AppDynamics’ net income.
6. Termination. Upon expiration or termination of the Term for any reason, (i) End User shall cease any further use of the Software and destroy any copies of the Software or related documentation within End User’s possession or control and (ii) each Receiving Party will return or destroy, at the Disclosing Party’s option, the Disclosing Party’s Confidential Information in the Receiving Party’s possession or control. End User represents and warrants that is has not previously evaluated the Software, and will not attempt to, by any means, evaluate the Software again without payment. End User agrees that violation of this provision or this Evaluation EULA may subject End User to monetary penalties, including payment of all applicable fees as though the Software were licensed or accessed for payment. In addition to any other rights set forth herein, unless End User has purchased a subscription to Nodetime, AppDynamics may in its sole discretion restrict, suspend or terminate End User’s access to the Software, in whole or in part and without notice. If End User has purchased a subscription to Nodetime pursuant to this Evaluation EULA, then if either party fails to comply with any provision of this Evaluation EULA, and such breach has not been cured within thirty (30) days after receipt of written notice thereof, the non-breaching party may terminate this Evaluation EULA, except that AppDynamics may immediately terminate this Agreement upon End User’s breach of Section 2(a). Sections 2 through 10 of this Evaluation EULA will survive any expiration or termination hereof.
7. Disclaimer of Warranties. THE SOFTWARE IS BEING PROVIDED TO END USER WITHOUT CHARGE FOR EVALUATION PURPOSES ONLY, AND IS THEREFORE BEING PROVIDED “AS IS”. APPDYNAMICS EXPRESSLY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT THERETO, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR THE CONTINUOUS, UNINTERRUPTED, ERROR-FREE, VIRUS-FREE, OR SECURE ACCESS TO OR OPERATION OF THE PRODUCT, OR AS TO THE ACCURACY OR COMPLETENESS OF (OR LICENEE’S ABILITY TO RETAIN) ANY INFORMATION OR DATA ACCESSED OR USED IN CONNECTION WITH THE SOFTWARE.
8. Limitation of Liability. EXCEPT FOR LIABILITY ARISING OUT OF END USER’S BREACH OF SECTION 2(A) (RESTRICTIONS) OR SECTION 3 (CONFIDENTIALITY), IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR (I) ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOSS OF REVENUES OR PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR (II) ANY OTHER DAMAGES IN EXCESS OF ONE HUNDRED DOLLARS (US$100).
9. Data Collection. AppDynamics’ application server and machine agents collect metrics that relate to the performance, health and resource of an application, its components (transactions, code libraries) and related infrastructure (nodes, tiers), which service those components. In addition, AppDynamics may collect metrics on End Users’ activities, such as web pages visited, length of visit, and which features of the Software an End User uses. End User represents and warrants that it shall not configure the Software to collect any personally identifiable information or payment card information without AppDynamics’ prior written consent.
10. General Provisions. This Evaluation EULA shall be governed by and construed under the laws of the State of California, U.S.A. Failure by either Party to exercise any of its rights under, or to enforce any provision of, this Evaluation EULA will not be deemed a waiver or forfeiture of such rights or ability to enforce such provision. If any provision of this Evaluation EULA is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision will be amended to achieve as nearly as possible the same economic effect of the original provision and the remainder of this Evaluation EULA will remain in full force and effect. This Evaluation EULA represents the entire agreement between the parties and supersedes any previous or contemporaneous oral or written agreements or communications regarding the use of the Software. Any modification to this Evaluation EULA must be in writing and signed by a duly authorized agent of both parties. The rights and remedies of the parties hereunder will be deemed cumulative and not exclusive of any other right or remedy conferred by this Evaluation EULA or by law or equity. The captions and headings appearing in this Evaluation EULA are for reference only and will not be considered in construing this Evaluation EULA. No joint venture, partnership, employment, or agency relationship exists between the parties as a result of this Evaluation EULA or use of the Software. This Evaluation EULA may not be assigned by End User. AppDynamics may give notice to End User by electronic mail to End User’s e-mail address on record in End User’s account information, or by written communication sent by first class mail or pre-paid post to End User’s address on record in End User’s account information. End User may give notice to AppDynamics at any time by any letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to AppDynamics at the following address: AppDynamics, Inc., 303 Second Street, North Tower, Suite 450, San Francisco, CA 94107, Attn: Director of Legal. Notice to AppDynamics shall be deemed given when received by AppDynamics. For purposes hereof, “including” means “including without limitation”.