1. Read the following terms and conditions carefully before installing this product on your network or personal computer. This product license agreement is a legal agreement between you (either on behalf of yourself as an individual or on behalf of an entity as its authorized representative) on the one hand, and Kemp Technologies Inc. and its subsidiaries and affiliates (collectively referred to as 'Kemp') on the other hand, for the hardware and/or software products entitled ‘Kemp 360 Central®', ‘Kemp 360 Vision®’, ‘LoadMaster®’, ‘LoadMaster® MT’, ‘LoadMaster® GEO’, ‘LoadMaster® for Bare Metal’ and ‘Virtual LoadMaster®' which includes physical hardware and/or computer software and any associated media, printed materials, and/or 'online' or electronic documentation (together called the 'Product'). Please read this agreement carefully and print out a copy for your records. This agreement supersedes previous versions.
By installing, copying, or otherwise using the Product, you acknowledge that you have read this product license agreement and agree to be bound by its terms. The Product is licensed, not sold, to you for use only under the terms of this agreement. If you do not agree to the terms of this product license agreement, do not install or use the Product and delete all copies in your possession.
2. Kemp grants you a non-exclusive, non-transferable license to use the Product in accordance with the license key provided by Kemp in the territory in which you acquired the Product for your own personal or commercial use, but retains all property rights in the Product and all copies thereof. All other rights are expressly reserved by Kemp. You may: (i) use the Product on any supported system configuration, provided each instance of the Product is licensed for use; and (ii) permanently transfer the Product and its documentation to another user provided you retain no copies and the recipient agrees to the terms of this Agreement. You may not transfer, distribute, rent, sub-license, or lease the Product or documentation, except as provided herein; or alter, modify, or adapt the Product or documentation, or any portions thereof.
3. You acknowledge that the Product in source code form remains a confidential trade secret and property of Kemp. You agree not to modify or attempt to reverse engineer, decompile, or disassemble the Product, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
4. OWNERSHIP: All rights, title and interest and intellectual property rights in and to the Product (including but not limited to any titles, computer code, concepts, screen images, text and 'applets,' incorporated into the Product), the accompanying printed materials, and any copies of the Software, are owned by Kemp or its licensors. This Agreement grants you no rights to use such content other than as part of the Product. You agree that no title to the intellectual property in the Product, Subscription Services (as defined), or license keys is transferred to you. Title, ownership, rights, and intellectual property rights in and to the Product, Subscription Services, and license keys shall remain in Kemp and/or Kemp's licensors. The Product, Subscription Services and license keys are protected by intellectual property laws of the United States and other countries and by international treaties.
5. This Agreement is effective upon your installation of the Product and shall continue until revoked by Kemp or until you breach any term hereof.
6. LICENSE RESTRICTIONS: You acknowledge that the foregoing license extends only to your use of the features and functionality of the Product as described in the documentation accompanying the version of the Software downloaded or Product obtained by you (the "Documentation"), and you agree not to reconfigure or modify the Product in order to enable features or functionality different than those described in such Documentation or available in other Kemp products without notifying Kemp and paying the applicable Product upgrade fee. You may not: (i) reverse engineer, decompile, or disassemble the Product; (ii) modify, or create derivative works based upon, the Product in whole or in part; (iii) distribute copies of the Product; (iv) remove any proprietary notices or labels on the Product; or (v) resell, lease, rent, transfer, sublicense, or otherwise transfer rights to the Product. Any use in violation of this Section shall immediately terminate your license to the Product.
7. GENERAL: Kemp does not guarantee that use of the Product will be uninterrupted and error free. You acknowledge that performance of the Product may be affected by any number of factors, including without limitation, technical failure of the Product, the acts or omissions of third parties and other causes reasonably beyond the control of Kemp. Certain features of the Product may not be forward-compatible with future versions of the Product and use of such features with future versions of the Product may require purchase of the applicable future version of the Product.
8. DISCLAIMER: Kemp disclaims any and all other warranties, whether express, implied, or statutory, including, but without limitation, the implied warranties of noninfringement of third party rights, merchantability or fitness for a particular purpose. This warranty disclaimer affects your legal rights, and you may also have other rights which vary from jurisdiction to jurisdiction. Some jurisdictions do not allow exclusions of implied warranties or limitations on how long an implied warranty lasts, so the above exclusion may not apply to you.
9. Limitation on Liability. Except for bodily injury of a person, in no event will Kemp be liable to you or any third party for any damages arising out of the subject matter of this agreement, the product or any services under any contract, negligence, strict liability or other theory, for any indirect, special, incidental, or consequential damages (including lost profits), or for loss of or corruption of data, or for cost of procurement of substitute goods or technology, irrespective of whether Kemp has been advised of the possibility of such damages. Kemp's maximum liability for damages shall be limited to the license fees received by Kemp under this license for the particular product(s) which caused the damages. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to You.
10. TERMINATION: This Agreement shall terminate automatically if you fail to comply with the terms of this Agreement. No notice shall be required from Kemp to affect such termination. You may also terminate this Agreement at any time by notifying Kemp in writing of termination. Upon any termination of this Agreement, you must uninstall and destroy all copies of the Product.
11.1 COMPLIANCE WITH EXPORT CONTROL LAWS: End User agrees to comply with all applicable export and reexport control laws and regulations, including the Export Administration Regulations ("EAR") maintained by the United States Department of Commerce. Specifically, each party covenants that it shall not - directly or indirectly - sell, export, reexport, transfer, divert, or otherwise dispose of any software, source code, or technology (including products derived from or based on such technology) received from the other party under this Agreement to any country (or any individual national thereof) subject to antiterrorism controls or U.S. embargo, or to any other person, entity, or destination prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations.
11.2 U.S. GOVERNMENT RIGHTS: The Product under this Agreement is commercial computer product as that term is described in 48 C.F.R. 252.227-7014(a)(1). If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer product and/or commercial computer product documentation subject to the terms of this Agreement as specified in 48 C.F.R. 12.212 (Computer Product) and 12.211 (Technical Data) of the Federal Acquisition Regulations ("FAR") and its successors. If acquired by or on behalf of any agency within the Department of Defense ("DOD"), the U.S. Government acquires this commercial computer product and/or commercial computer product documentation subject to the terms of this Agreement as specified in 48 C.F.R. 227.7202-3 of the DOD FAR Supplement ("DFAR") and its successors.
11.3 GOVERNING LAW: This Agreement will be governed by the laws of the State of New York. The United Nations Convention on Contracts for the International Sale of Goods is specifically disclaimed.
11.4 ENTIRE AGREEMENT: You agree that this is the entire agreement between you and Kemp, and that it supersedes any prior agreement, whether written or oral, and all other communications between Kemp and you relating to the subject matter of this Agreement. Kemp will notify the End User of any amendments, modifications or supplements Kemp makes to this Agreement.
11.5 RESERVATION OF RIGHTS: All rights not expressly granted in this Agreement are reserved by Kemp.
12. INJUNCTION. Because Kemp would be irreparably damaged if the terms of this License Agreement were not specifically enforced, you agree that Kemp shall be entitled, without bond, other security or proof of damages, to appropriate equitable remedies with respect to breaches of this Agreement, in addition to such other remedies as Kemp may otherwise have under applicable laws.
13. INDEMNITY. At Kemp's request, you agree to defend, indemnify and hold harmless Kemp, its subsidiaries, affiliates, contractors, officers, directors, employees, agents, licensors, licensees, distributors, developers, content providers, and other users of the Product, from all damages, losses, liabilities, claims and expenses, including attorneys' fees, arising directly or indirectly from your acts and omissions to act in using the Product pursuant to the terms of this License Agreement or any breach of this License Agreement by you. Kemp reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you hereunder, and in such event, you shall have no further obligation to provide indemnification for such matter.
14. TERMINATION. Without prejudice to any other rights of Kemp, this License Agreement and your right to use the Product may automatically terminate without notice from Kemp if you fail to comply with any provision of this Agreement or any terms and conditions associated with the Product. In such event, you must destroy or delete all copies of this Product and all of its component parts.
15. GENERAL PROVISIONS. You may not use, copy, modify, sublicense, rent, sell, assign or transfer the rights or obligations granted to you in this Agreement, except as expressly provided in this Agreement. Any assignment in violation of this Agreement is void, except that you may transfer your Product to another person provided that person accepts the terms of this License Agreement. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable, and such decision shall not affect the enforceability of: (i) such provision under other circumstances, or (ii) the remaining provisions hereof under all circumstances. Kemp's failure to enforce at any time any of the provisions of this Agreement shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the right of any party to enforce each and every such provision thereafter. The express waiver by Kemp of any provision, condition or requirement of this Agreement shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement. Notwithstanding anything else in this Agreement, no default, delay or failure to perform on the part of Kemp shall be considered a breach of this Agreement if such default, delay or failure to perform is shown to be due to causes beyond the reasonable control of Kemp. This Agreement represents the complete agreement concerning this License Agreement between you and Kemp.
16. ONLY APPLICABLE TO “Free LoadMaster” – The “Free LoadMaster” is a derivative of the LoadMaster product line with unique end user requirements.
i) The Free LoadMaster may be deployed in a production environment exclusively under the condition that no direct revenue is derived from its use.
ii) The Free LoadMaster will only continue to operate when able to Call Home to an internet-located Kemp server to provide non-personally identifiable data about the appliance configuration including usage statistics, enabled features and general configuration. Kemp expressly disclaims any liability for non-performance in the event that Call Home communication is disrupted. For more information on Call Home visit www.kemptechnologies.com/callhome.
17. Support Subscription Grant. Subject to the terms and conditions of this Agreement Kemp hereby grants Customer a non-exclusive, non-transferable, non-assignable, limited right to use Kemp’s Support Subscription services during the applicable Subscription Term for personal or commercial use but retains all property rights of the services delivered. All other rights are expressly reserved by Kemp. Your Support Subscription definition associated with your product are dictated by your agreement made with Kemp. Detailed definitions of Kemp Support Subscription options are available at https://kemptechnologies.com/subscription/loadmaster-licensing/.
18. ONLY APPLICABLE TO “Kemp 360 Vision®” - Upgrade Authorization. As part of the Kemp 360 Vision® Service it will be necessary to upgrade the Product on a periodic basis. Allowing Kemp to make these upgrades is controlled by the customer as an option on the user interface. If the customer determines that they would prefer to be in control of the upgrades they will need to allocate time for their designated employees to make these upgrades when requested by Kemp.
19. ONLY APPLICABLE TO “Kemp 360 Vision®” - Use of Data. As part of the Kemp 360 Vision® Service, the Product will gather statistical information and log entries from the devices, servers configured within the Products interface. The Product will transmit information to and from your Product to provide the Kemp 360 Vision® Services.