NETSCOUT Systems, Inc. End User License Agreement
Last updated: April 2022
READ CAREFULLY: LICENSOR (NETSCOUT SYSTEMS, INC.) LICENSES THIS PROGRAM, TOOL, PLUG-IN, ADD-ON, APPLICATION, LIBRARY, DATA, SOLUTION, SERVICE, OR OTHER ITEM OR MATERIAL (THE "CONTENT") TO YOU UPON THE CONDITIONS THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS END USER LICENSE AGREEMENT ("AGREEMENT") and that you are a qualified user (see section 1 below). By downloading, installing, accessing, or using the Content, you agree to this agreement and represent you are a qualified user. If you are entering into this agreement on behalf of Customer, you represent that you have the authority to bind Customer. If you do not agree to this agreement, if you are not a qualified user, or if you are not authorized to accept the agreement on behalf of the Customer, do not download, install, access, or use any of the content.
- Qualified User. You are permitted to use the Content only in conjunction with (i) the specific Licensor software product or service that the Content was designed to operate with as identified in materials distributed with the Content ("NETSCOUT Software"), and (ii) the specific third party product or service that the Content was designed to operate with as identified in materials distributed with the Content ("Third Party Application"). Therefore, you may use the Content only if you are an authorized user of both the NETSCOUT Software and the Third Party Application (a “Qualified User”). This Agreement applies only to the Content and does not modify or alter the terms of the license agreement delivered with the NETSCOUT Software or the Third Party Application. Licensor is not responsible for examining or evaluating the content or accuracy of any Third Party Application, and shall not be liable for any Third Party Application. To the extent you choose to use such Third Party Application, you are solely responsible for compliance with any applicable laws and agreements which govern the use of the Third Party Application.
- License and Restrictions. Subject to the terms and conditions of this Agreement, Licensor grants to you a nonexclusive, worldwide, and nontransferable license to download and use the Content for your internal business purposes in connection with the NETSCOUT Software and the Third Party Application, and make a reasonable number of copies for backup purposes. Content is licensed, not sold, to you. You may not transfer, redistribute, or sublicense the Content. You may not copy (except as permitted by this Agreement), reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Content, any updates, or any part thereof (except as and only to the extent that any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-sourced components included with the Content). Licensor owns the Content and reserves all rights in and to the Content not expressly granted to you under this Agreement.
- Support. Unless stated otherwise in the materials distributed with the Content, Licensor has no obligation to provide support or updates for the Content.
- Feedback. You agree that any feedback, ideas, modifications, suggestions, improvements, and the like made by you (“Feedback”) is given voluntarily, and Licensor may disclose or use Feedback for any purposes whatsoever without any obligation to you.
- Termination. This Agreement is effective until terminated by you or Licensor. Your rights under this Agreement will terminate automatically if you fail to comply with any of its terms.
- No Warranty. THE CONTENT IS FURNISHED ON AN "AS IS" BASIS, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND LICENSOR HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE CONTENT, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND OF NONINFRINGEMENT OF THIRD-PARTY RIGHTS. LICENSOR SPECIFICALLY DOES NOT WARRANT THAT THE CONTENT WILL MEET YOUR REQUIREMENTS; WILL OPERATE IN ALL THE COMBINATIONS WHICH MAY BE SELECTED FOR USE BY YOU; THAT THE OPERATION OF THE CONTENT WILL BE ERROR-FREE OR UNINTERRUPTED, ACCURATE, USEFUL, RELIABLE, OR COMPLETE; OR THAT ALL ERRORS OR DEFECTS IN THE CONTENT WILL BE CORRECTED. YOU USE THE CONTENT AT YOUR OWN RISK.
- Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, UNDER NO CIRCUMSTANCES WILL NETSCOUT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES, FOR LOSS OF PROFITS, USE, REVENUE, OR DATA OR FOR BUSINESS INTERRUPTION (REGARDLESS OF THE LEGAL THEORY FOR SEEKING SUCH DAMAGES OR OTHER LIABILITY) ARISING OUT OF OR IN CONNECTION WITH USE OF THE CONTENT, WHETHER OR NOT LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL LICENSOR’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF ONE HUNDRED DOLLARS ($100.00). THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- Export. You may not use or otherwise export or re-export the Content except as authorized by United States law and the laws of the jurisdiction in which the Content was obtained. In particular, but without limitation, the Content may not be exported or re-exported (a) into any U.S.-embargoed countries or (b) to anyone on the U.S. Treasury Department's Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List. By using the Content, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the Content for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons.
- Confidentiality. The Content and any material provided with it is NETSCOUT Confidential Information. You will: (i) protect the Confidential Information using the same degree of care (but no less than reasonable care) that you use to protect your confidential information of a similar nature, (ii) limit use of the Confidential Information for purposes consistent with this Agreement, and (iii) limit access to the Confidential Information to your employees, contractors, and agents who have a bona fide need to access the Confidential Information for purposes consistent with this Agreement and who are subject to confidentiality obligations no less stringent than those herein.
- General. You are responsible for complying with all laws, rules, and regulations applicable to your access and use of the Content. This Agreement is governed by and construed in accordance with the laws of the Commonwealth of Massachusetts (and, to the extent controlling, the federal laws of the United States, without reference to the conflicts-of-laws rules thereof). The UN Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act shall not apply to this Agreement. This Agreement constitutes the entire agreement between Licensor and you with respect to the Content and may not be modified except by a written instrument executed by you and an authorized representative of Licensor.