END USER SOFTWARE LICENSE
IMPORTANT – READ BEFORE INSTALLING OR OPERATING THIS APPLICATION
LICENSEE AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT BY INSTALLING, HAVING INSTALLED, COPYING, OR OTHERWISE USING THE APPLICATION. IF LICENSEE DOES NOT AGREE, DO NOT INSTALL OR USE THE APPLICATION.
1. Scope. This license agreement (“License”) applies to the software product (“Software”) included in this application (“Application”). This License is a legal agreement between F5 Networks, Inc. (“F5”) and the single entity (“Licensee”) that has acquired the Software. The Software may incorporate certain third party software programs subject to the terms and restrictions of the applicable licenses identified herein.
2. License Grant. Subject to the terms of this License, F5 grants to Licensee a perpetual, non-exclusive, non-transferable license to use the Software for which Licensee has paid the required license fees in object code form for Licensee’s internal business purposes. Other than as specifically described herein, no right or license is granted to any of F5’s trademarks, patents, copyrights, or other intellectual property rights and F5 retains all rights not granted herein. The Software may incorporate certain third party software, which is used subject to licenses from the respective owners. The third party software, if any, is identified in the Software release notes for the Software version available at http://askf5.com. The protections given to F5 under this License also apply to the suppliers of this third party software.
(a) The Software, documentation and the associated copyrights and other intellectual property rights are owned by F5 or its licensors and are protected by law and international treaties. Licensee may not copy or translate the documentation provided with the Software or available online at http://askf5.com (“Documentation”) without F5’s prior, written consent. Licensee may install, use, access, display and run the Software only in the manner in which it has been licensed as indicated herein and in the applicable purchase order, quote or the license file for such Application or Software, including but not limited to any restrictions on number of protected applications, number or type of licensed devices, number of authorized copies or instances, number of users, bandwidth, non-production use or database restrictions. Licensee agrees that it will not defeat, circumvent or disable any mechanism in the Software used to limit license duration or access to non-licensed functionality or capacity, and that any such attempt will be a material breach of this Agreement. F5 reserves the right to audit Licensee’s use of the Software or authorize others to conduct such an audit on its behalf and to disable any application or functionality that has not been specifically licensed, in addition to any other rights and remedies available to F5.
(b) Certain portions of the Software may include third party software modules as identified in the applicable Software release notes, if applicable, including but not limited to, MySQL licensed from MySQL AB and JavaTM licensed from Sun Microsystems, and are subject to additional limitations imposed by those third parties (“Restricted Third Party Software”). Certain portions of the Software may also include geographical or other data (“Data”). Licensee agrees that it will only use such Restricted Third Party Software or Data in conjunction with the Application and not as standalone software. Licensee will not (i) copy the Restricted Third Party Software or Data onto any public or distributed network; (ii) use the Restricted Third Party Software or Data separately to operate in or as a time-sharing, outsourcing, service bureau, application service provider or managed service provider environment; (iii) use the Restricted Third Party Software or Data as a general server, as a standalone application or with applications other than the Software under this license; (iv) change any proprietary rights notices which appear in the Restricted Third Party Software or Data; or (v) modify the Restricted Third Party Software or Data.
(c) Licensee may not copy (except to make one archival copy for backup and disaster recover purposes), modify, sell, sub-license, rent or transfer the Software, Data or any associated Documentation to any third party. Licensee may not disassemble, reverse compile or reverse engineer the Software or any Data incorporated in the Software or encourage others to do so except as required by law for interoperability purposes, and then only after Licensee has given Supplier an opportunity to provide information or software necessary to resolve such interoperability issues.
4. Export Control. The Software may incorporate cryptographic software. Licensee agrees to comply with the Export Administration Act, the Export Control Act, all regulations promulgated under such Acts, and all other US government regulations relating to the export of technical data and equipment and products produced therefrom which are applicable to Licensee. In countries other than the US, Licensee agrees to comply with the local regulations regarding importing, exporting or using the applicable technology. Licensee agrees it will not export or re-export the Software to any country, person, or entity subject to U.S. export restrictions.
5. Notice to U.S. Government End Users. The Software and Documentation qualify as “commercial items,” as that term is defined at Federal Acquisition Regulation (“FAR”) (48 C.F.R.) 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in FAR 12.212. Consistent with FAR 12.212 and DoD FAR Supp. 227.7202-1 through 227.7202-4, and notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which this End User License Agreement may be incorporated, Licensee may provide to Government end user or, if this Agreement is direct, Government end user will acquire, the Software and Documentation with only those rights set forth in this End User License Agreement. Use of either the Software or Documentation or both constitutes agreement by the Government that the Software and Documentation are “commercial computer software” and “commercial computer software documentation” and constitutes acceptance of the rights and restrictions herein.
6. DISCLAIMER; LIMITATION OF REMEDY. THE SOFTWARE IS PROVIDED “AS IS”. F5 AND ITS THIRD PARTY LICENSORS DISCLAIM ANY AND ALL WARRANTIES AND GUARANTEES, EXPRESS, IMPLIED OR OTHERWISE, ARISING, WITH RESPECT TO THE SOFTWARE, DATA, SPECIFICATIONS, OR DOCUMENTATION DELIVERED HEREUNDER, INCLUDING BUT NOT LIMITED TO THE WARRANTY OF MERCHANTABILITY, THE WARRANTY OF NON-INFRINGEMENT AND THE WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. F5 MAKES NO WARRANTY CONCERNING THE COMPLETENESS OR ACCURACY OF THE DATA OR INFORMATION OBTAINED OR DERIVED THROUGH THE USE OF THE DATA INCLUDED IN THE SOFTWARE AND THE DATA IS PROVIDED “AS IS”. F5 HAS NOT AUTHORIZED ANYONE TO MAKE ANY REPRESENTATIONS OR WARRANTIES OTHER THAN AS PROVIDED ABOVE OR TO OTHERWISE MODIFY THE TERMS OF THIS LICENSE. THE COLLECTIVE LIABILITY OF F5 AND ITS THIRD PARTY LICENSORS UNDER THIS LICENSE WILL BE LIMITED TO THE AMOUNT PAID FOR THE APPLICATION. F5 AND ITS THIRD PARTY LICENSORS WILL NOT HAVE ANY OBLIGATION OR LIABILITY, WHETHER ARISING IN CONTRACT (INCLUDING WARRANTY), TORT (INCLUDING ACTIVE, PASSIVE OR IMPUTED NEGLIGENCE, STRICT LIABILITY OR APPLICATION LIABILITY), FAILURE OF ESSENTIAL PURPOSE, OR OTHERWISE FOR ANY PUNITIVE, EXEMPLARY, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF DATA, BUSINESS INTERRUPTION, LOSS OF REVENUE, LOSS OF BUSINESS OR OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE OR OTHER GOODS OR SERVICES FURNISHED TO LICENSEE BY F5, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY LAW, F5’S THIRD PARTY LICENSORS WILL NOT HAVE ANY LIABILITY FOR ANY DIRECT DAMAGES OF ANY KIND UNDER THIS LICENSE AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN THOSE JURISDICTIONS, SUCH INAPPLICABILITY WILL NOT AFFECT THE REMAINDER OF THE PROVISIONS IN THIS SECTION.
7. Termination. The license granted in Section 2 is effective until terminated and will automatically terminate if Licensee fails to comply with any of the terms and conditions set forth herein. Upon termination, Licensee will destroy the Software and documentation and all copies or portions thereof.
8. Miscellaneous. This License will be governed by the laws of the State of Washington, USA without regard to its choice of law rules. The provisions of the U.N. Convention for the International Sale of Goods and the Uniform Computer Information Transactions Act, in whatever form adopted, will not apply and the parties specifically opt out of the application of such laws. In the event of any dispute arising out of or relating to this Agreement, the parties shall seek to settle the dispute via direct discussions. If a dispute cannot be settled through direct discussions, the parties agree to first endeavor to settle the dispute via voluntary non-binding mediation, before resorting to arbitration. A mediator will be selected by voluntary agreement of both parties, or in the event both parties cannot agree on a mediator, a mediator will be selected in accordance with the rules of JAMS. The mediation shall be held in Seattle, Washington. Each party shall bear its own costs and expenses and an equal share of the administrative and other fees associated with the mediation. Any dispute that remains unresolved following mediation shall be settled by arbitration administered by the JAMS in accordance with its Comprehensive Arbitration Rules. The place of arbitration shall be Seattle, Washington. Judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitrator(s) shall award to the prevailing party, if any, as determined by the arbitrator(s), all of its costs and fees. "Costs and fees" mean all reasonable pre-award expenses of the arbitration, including the arbitrators' fees, administrative fees, travel expenses, out-of-pocket expenses such as copying and telephone, court costs, witness fees, and attorneys' fees. In rendering the award, the arbitrator(s) shall determine the rights and obligations of the parties according to the substantive and procedural laws of the State of Washington. The foregoing alternative dispute resolution provisions will not apply to claims or actions related to the infringement, misappropriation or violation of F5’s intellectual property rights or those of its third party licensors and such actions may be brought in any court of competent jurisdiction. Any provisions found to be unenforceable will not affect the enforceability of the other provisions contained herein, but will instead be replaced with a provision as similar in meaning to the original as possible. This License constitutes the entire agreement between the parties with regard to its subject matter. No modification will be binding unless in writing and signed by the parties.