This Early Access Software License Agreement (the "Agreement") governs Your use of The OpenNMS Group, Inc. and its affiliates (“OpenNMS”) Early Access Release (“EAR”) cloud-based network monitoring tools. You must agree to the terms of this Agreement to use or access the EAR. By clicking on the ‘Yes’ or ‘I accept’ button (or any other button or mechanism designed to acknowledge Your agreement to the terms contained herein), or by downloading, accessing, or installing the early access software, You are consenting to be bound by this Agreement.
If You agree to these terms on behalf of a business, You represent and warrant that You have the power and authority to bind that business to this Agreement, and Your agreement to these terms will be treated as an agreement of the business. In that event, "You" and "Your" refer herein to that business. If You are unwilling or unable to enter into this agreement, or You do not have the right, power, and authority to act on behalf of and bind Your business, do not install, download, access, or otherwise use the EAR.
1.1. "Early Access Release" means the early release version of the OpenNMS product, service, technology identified on the software download page or landing page or invitation message (the "Cover Page"), whether labeled as alpha, beta, pre-release, preview or otherwise, provided to You by OpenNMS under this Agreement. EAR may include any enhancements, updates, upgrades, derivatives or bug fixes to such product, service or technology and any documentation, add-ons, templates, sample data sets or hardware devices as provided by OpenNMS.
1.2. "Data" means Your own data and information uploaded or submitted or transmitted by You in connection with Your use of the EAR (other than Feedback) and the specific file or output generated from the EAR, if any, based upon Your own data and information.
1.3. "Feedback" means all suggestions, comments, opinions, code, input, ideas, reports, information, know-how or other feedback provided by You (whether in oral, electronic, or written form) to OpenNMS in connection with Your use of the EAR. Feedback does not include any data, results or output created or generated by You using the EAR, unless submitted or communicated by You to OpenNMS.
1.4. "Internal Purposes" means internal business use with Your systems, networks, devices, and data for the purposes of internal testing and evaluation of the EAR to provide Feedback to OpenNMS regarding the EAR. Such use does not include use of Your systems, networks, or devices as part of services You provide for a third party's benefit. The EAR should not be used in production environments and any such use will be at Your risk alone.
2. Early Access Release License
Subject to Your compliance with the terms and conditions of this Agreement, OpenNMS grants You a nonexclusive, non-sub licensable, nontransferable, revocable, limited license during the term of the Agreement to use of the EAR at Your principal office in a secure location, only in connection with and solely for the Internal Purposes. You will access the EAR via a secure account issued to you by OpenNMS. You will not share this account with any other person and will use commercially reasonable efforts to maintain the security of this account. You will notify OpenNMS immediately if you reasonably believe that the security has been compromised and you will work with OpenNMS to address any such security issue.
3. License Restrictions
Except as expressly authorized in this Agreement or by OpenNMS, You will not, and will not permit any third party to: (i) access or use the EAR for any other purposes than the Internal Purposes (including for any competitive analysis, commercial, professional, or other for-profit purposes); (ii) copy any part of the EAR (except as required to run the EAR and for reasonable backup purposes); (iii) modify, adapt, or create derivative works of the EAR; (iv) rent, lease, loan, resell, transfer, sublicense or distribute the EAR to any third party; (v) use or offer any functionality of the EAR on a service provider, service bureau, hosted, software as a service, or time sharing basis; (vi) decompile, disassemble or reverse-engineer the EAR or otherwise attempt to derive the EAR source code, algorithms, methods or techniques used or embodied in the EAR; (vii) disclose to any third party the results of any benchmark tests or other evaluation of the EAR, or (viii) remove, alter, obscure, cover or change any trademark, copyright or other proprietary notices, labels, or markings from or on the EAR; (ix) interfere with or disrupt servers or networks connected to any website through which the EAR provided; or (x) use the EAR to collect or store personal data about any person or entity that is in any way a violation of any applicable law or that person’s rights. Any consultant, contractor, or agent hired to perform services for You may operate the EAR on Your behalf under these terms and conditions (e.g., such individual must obtain their own secure account from OpenNMS), provided that: (a) You are responsible for ensuring that any such third party agrees to abide by and fully comply with the terms of this Agreement on the same basis as applicable to You; (b) such use is only in connection with Your Internal Purposes; (c) such use does not represent or constitute an increase in the scope of the licenses provided hereunder; and (d) You remain fully liable for any and all acts or omissions by such third parties related to this Agreement. Any violation of this Section will be a material breach of this Agreement subject to immediate termination of this Agreement for which no notice from OpenNMS will be required.
You agree to hold the EAR (including all intellectual property rights therein, such as any patents, inventions, copyrights, design rights, trade secrets and know-how) and any related information ("Confidential Information"), whether in oral or written form, confidential. Confidential Information may include information relating to features, functionalities, improvements, code, pricing, business strategies, product roadmaps, development plans, marketing materials, data sets, customer lists or other proprietary third-party information. You will hold such Confidential Information in strict confidence and not use or disclose the Confidential Information, in whole or in part, except as expressly permitted in this Agreement. You may disclose Confidential Information to Your employees, but only to the extent they have a need to know to test the EAR and You have advised them that such information is Confidential. You agree to instruct any such employees in advance who will have access to the EAR that they must comply with the restrictions set forth in this Agreement. You will have no obligation to maintain the confidentiality of any information which: (a) is or becomes publicly available without breach of this Agreement; (b) is rightfully received by You from a third party without an obligation of confidentiality and without breach of this Agreement; (c) is developed independently by You without access to or use of the Confidential Information; or (d) has been approved for release by written authorization of the party that owns the Confidential Information. You will notify immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this Agreement by You or Your personnel and will cooperate with OpenNMS in every reasonable way to help OpenNMS regain possession of the Confidential Information and prevent its further unauthorized use or disclosure. You acknowledge that any breach of its obligations under this Agreement with respect to the proprietary rights or Confidential Information will cause OpenNMS irreparable injury for which there are inadequate remedies at law, and therefore, OpenNMS will be entitled to equitable relief in addition to all other remedies provided by this Agreement or available at law or in equity.
5. Term And Termination
This Agreement will be effective from the earlier of (a) the date it is accepted by You and (b) the date on which You first installed, downloaded, or accessed the EAR and will continue until terminated. This Agreement may be terminated at any time by either party, with or without cause, effective upon notice of termination. This Agreement will terminate automatically upon the end of the EAR project as identified by OpenNMS or upon commercial release (if any) of the EAR, whichever is earlier. This is time-sensitive software, so it will stop functioning on the termination date. Upon termination, You will immediately cease all use of the EAR, or upon request by OpenNMS, return to OpenNMS any material provided to You pursuant to this Agreement or in conjunction with your access or use of the EAR and other Confidential Information that are in Your possession or control (“EAR Material”). Upon OpenNMS’ request, You will certify in writing that You have returned or destroyed all copies of the EAR Material. Sections 1, 3, 4, 6, 7, 8, 9, 10, 11, 15, and 16 will survive termination of this Agreement.
OpenNMS, its suppliers and/or its licensors own all worldwide right, title and interest in and to the EAR, including all worldwide patent rights (including patent applications and disclosures); copyright rights (including copyrights, copyright registration and copy rights with respect to computer software, software design, software code, software architecture, firmware, programming tools, graphic user interfaces, reports, dashboard, business rules, use cases, screens, alerts, notifications, drawings, specifications and databases); moral rights; trade secrets and other rights with respect to confidential or proprietary information; know-how; other rights with respect to inventions, discoveries, ideas, improvements, techniques, formulae, algorithms, processes, schematics, testing procedures, technical information and other technology; and any other intellectual and industrial property rights, whether or not subject to registration or protection; and all rights under any license or other arrangement with respect to the foregoing. Except as expressly stated in this Agreement, OpenNMS does not grant You any intellectual property rights in the EAR, and all right, title, and interest in and to all copies of the EAR not expressly granted remain with OpenNMS, its suppliers and/or its licensors. The EAR is copyrighted and protected by the laws of the United States and other countries, and international treaty provisions. You acknowledge that the EAR is licensed and not sold. Your use of the EAR and any activity done pursuant to this Agreement is not intended to jointly create any intellectual property; if any intellectual property is inadvertently jointly developed, You hereby grant OpenNMS full ownership and usage rights that are worldwide, irrevocable, royalty-free, sublicensable, transferrable and perpetual and You agree to provide OpenNMS all reasonable support to document, establish and perfect such rights.
OpenNMS, in its sole discretion, may or may not respond to Your Feedback or promise to address all Your Feedback in the development of future features or functionalities of the EAR or any related or subsequent versions of such EAR. In the event OpenNMS uses Your Feedback, You hereby grant OpenNMS all proprietary rights and ownership interest in that Feedback, including any copyrights or invention rights. For any such rights retained, for any reason, You grant OpenNMS an unrestricted, perpetual, worldwide, exclusive, transferable, irrevocable, sub licensable, royalty-free, fully paid-up license to use, copy, modify, create derivative works of, make, have made, distribute (through multiple tiers of distribution), publicly perform or display, import, export, sell, offer to sell, rent, or license copies of the Feedback as part of or in connection with any OpenNMS product, service, technology, content, material, specification or documentation. You warrant that, to the best of your knowledge, the Feedback does not infringe any copyright or trade secret of any third party, and that You have no knowledge of any patent of any third party that may be infringed by the Feedback (including any implementation thereof recommended by You). You further warrant that Your Feedback is not subject to any license terms that would purport to require OpenNMS to comply with any additional obligations with respect to any OpenNMS product or service that incorporates Your Feedback.
You hereby grant OpenNMS a perpetual, irrevocable, non-exclusive, royalty-free, paid-up, worldwide, sub licensable license to use, access, transmit, host, store, and display the Data solely for the purpose of providing and improving the EAR. OpenNMS (or its sub licensees) may exercise such license for purposes of providing, maintaining, repairing, administering, and improving the EAR or in developing new products or services, including rights to extract, compile, aggregate, synthesize, use, and otherwise analyze all or any portion of the Data. You represent, warrant, and agree that the Data and other materials You provide or make available to OpenNMS will include only information relevant to the EAR and the use thereof and will not include any personally identifiable information or any protected health data. You acknowledge and agree that You are solely responsible for all Data You upload or submit using the EAR and for Your conduct while using the EAR. You acknowledge and agree that: (a) You will evaluate and bear all risks associated with the use of any Data; (b) You are responsible for protecting and backing up the Data; (c) You are responsible for protecting the confidentiality of any Data; and (d) under no circumstances will OpenNMS be liable in any way for any Data, including, but not limited to, any errors or omissions in any Data, or any loss or damages or any kind incurred as a result of Your use, deletion, modification, or correction of any Data. OpenNMS has no responsibility to store, protect, remove, or delete any Data for You and will have no liability for the deletion of or failure to store any Data.
9. Warranty Disclaimer
THE EAR IS PROVIDED AS IS. OPENNMS DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, QUIET ENJOYMENT AND WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE OR BY STATUTE OR IN LAW. OPENNMS SPECIFICALLY DOES NOT WARRANT THAT THE EARLY ACCESS SOFTWARE WILL MEET YOUR REQUIREMENTS, THE OPERATION OR OUTPUT OF THE EARLY ACCESS SOFTWARE WILL BE ERROR-FREE, ACCURATE, RELIABLE, COMPLETE OR UNINTERRUPTED. OPENNMS IS NOT OBLIGATED TO SUPPORT, UPDATE OR UPGRADE THE EAR.
10. No Reliance
OpenNMS has no obligations about any forward-looking statements made in connection with or while providing the EAR. Forward-looking statements are statements regarding future OpenNMS events, product offerings, product performance, customer uses or the expected financial performance of OpenNMS. Any such statements reflect current expectations and estimates based on factors currently known and that actual events or results could differ materially. OpenNMS does not assume any obligation to update any forward-looking statements made during the EAR project. In addition, any information about our roadmap outlines our general product direction and is subject to change at any time without notice. It is for informational purposes only and will not be incorporated into this Agreement or any contract or other commitment. OpenNMS undertakes no obligation either to develop the features or functionality described in the forward-looking statement or to include any such feature or functionality in a future release, including those You are reviewing as a part of this EAR. You expressly acknowledge that the EAR has not been fully tested and may contain defects or deficiencies which may not be corrected by OpenNMS, that the EAR may undergo significant changes prior to release of the corresponding generally available final version.
11. Limitation Of Liability
IN NO EVENT WILL OPENNMS BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING LOSS OF USE, DATA, OR PROFITS, BUSINESS INTERRUPTION, OR COSTS OF PROCURING SUBSTITUTE EARLY ACCESS SOFTWARE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE EARLY ACCESS SOFTWARE, WHETHER SUCH LIABILITY ARISES FROM CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT OPENNMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE PARTIES HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY REMEDY IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. WITHOUT LIMITING THE FOREGOING, OPENNMS WILL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY BUSINESS INTERRUPTION OR LOSS OF DATA ARISING FROM THE AUTOMATIC TERMINATION OF THE LICENSE RIGHTS GRANTED HEREIN AND ANY ASSOCIATED CESSATION OF THE EARLY ACCESS SOFTWARE FUNCTIONS OR ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME FOR ANY REASON OR ANY DELETION, CORRUPTION OR DAMAGE OF DATA ON OR THROUGH THE EARLY ACCESS SOFTWARE. OPENNMS'S TOTAL CUMULATIVE LIABILITY TO YOU, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED ONE HUNDRED DOLLARS ($100.00). BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
You will comply fully with all relevant export laws and regulations of the United States and any other country ("Export Laws") where You use any of the EAR. You represent and warrant that You are not (a) located in, or a resident or a national of, a restricted country; or (b) on any of the relevant U.S. Government Lists of prohibited persons, including but not limited to the Treasury Department’s List of Specially Designated Nationals and the Commerce Department’s List of Denied Persons or Entity List. You further represent and warrant that You will not export, re-export, ship, transfer the EAR to any restricted countries or restricted end users or use the EAR in any restricted countries or for any purposes prohibited by the Export Laws, including, but not limited to, nuclear, chemical, missile or biological weapons related end uses. You understand that the requirements and restrictions of the Export Laws may vary depending on the specific EAR and may change over time, and that, to determine the precise controls applicable to the EAR, it is necessary to refer to the U.S. Export Administration Regulations and the U.S. Department of Treasury, Office of Foreign Assets Control Regulations.
14. Government End User Rights
You acknowledge that all EAR and Confidential Information were developed entirely at private expense and that no part of the EAR or Confidential Information was first produced in the performance of a Government contract. You agree that the EAR and any derivatives thereof are "commercial items" as defined in 48 C.F.R. 2.101, and if You are a U.S. Government agency or instrumentality or if You are providing all or any part of the EAR or any derivatives thereof to the U.S. Government, such use, duplication, reproduction, release, modification, disclosure or transfer of this commercial product and data, is restricted in accordance with 48 C.F.R. ß12.211, 48 C.F.R. ß12.212, 48 C.F.R. ß227.7102-2, and 48 C.F.R. ß227.7202, as applicable. Consistent with 48 C.F.R. ß12.211, 48 C.F.R. ß12.212, 48 C.F.R. ß227.7102-1 through 48 C.F.R. ß227.7102-3, and 48 C.F.R. ßß227.7202-1 through 227.7202-4, as applicable, the EAR is licensed to U.S. Government end users (i) only as Commercial Items and (ii) with only those rights as are granted to all other users pursuant to this Agreement and any related agreement(s), as applicable. Accordingly, You will have no rights in the EAR except as expressly agreed in writing by You and OpenNMS.
15. Choice Of Law And Disputes
For other than the U.S. Government as a party, this Agreement will be governed by and construed in accordance with the laws of the State of North Carolina, as if performed wholly within the state and without giving effect to the principles of conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Raleigh, North Carolina and the parties hereby consent to personal jurisdiction and venue therein.
All notices required or permitted under this Agreement hereto will be in writing and delivered in person, by email, by overnight delivery service, or by registered or certified mail, and in each instance will be deemed given upon receipt. You may not assign, delegate, or transfer this Agreement, in whole or in part, by agreement, operation of law or otherwise. You acknowledge that OpenNMS may assign, subcontract or delegate any of its rights or obligations under this Agreement. Any attempt to assign this Agreement other than as permitted herein will be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties’ permitted successors and assigns. This Agreement along with any additional terms incorporated herein by reference constitute the complete and exclusive understanding and agreement between the parties relating only to the subject matter of the EAR and Confidential Information and will supersede all prior or contemporaneous agreements, communications, and understandings, written or oral, relating to such subject matter. This Agreement is limited to the use of EAR and Confidential Information and as such, this Agreement is separate from and will have no effect on any other agreement You may have with OpenNMS. Any waiver, modification, or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of both parties. All rights and remedies, whether conferred hereunder or by any other instrument or law, will be cumulative and may be exercised singularly or concurrently. The failure by either party to enforce any provisions of this Agreement will not constitute a waiver of any other right hereunder or of any subsequent enforcement of that or any other provisions. The terms and conditions stated herein are declared to be severable. If a court of competent jurisdiction holds any provision of this Agreement invalid or unenforceable, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed to be enforceable to the maximum extent permissible by law.