IMPORTANT: READ THIS AGREEMENT CAREFULLY BEFORE YOU INSTALL, COPY, DOWNLOAD OR USE THE SOFTWARE ACCOMPANYING THIS PACKAGE
This AppPerfect Software License Agreement "ASLA" is a legal agreement between "You" (either an individual or a single entity) and AppPerfect Corporation (referred herein as "AppPerfect") for the AppPerfect software products and printed and/or electronic documentation accompanying this ASLA (collectively referred herein as "SOFTWARE").
By installing, copying, downloading or using the SOFTWARE, You agree to be bound by the terms of this ASLA. If You do not agree with all the terms of this ASLA, AppPerfect is unwilling to license the SOFTWARE to You. In such an event, You may not install, copy, download or use the SOFTWARE and You must return to AppPerfect the complete SOFTWARE package, including the disks and printed materials or if you downloaded the SOFTWARE, notify AppPerfect in writing that You have de-installed the SOFTWARE within thirty (30) days of receipt for a refund of the purchase price.
1.1 Grant. Subject to the terms and conditions of this ASLA, AppPerfect hereby grants to You a limited, non-exclusive, non-transferable license to use the SOFTWARE for the authorized use for which You have paid AppPerfect a license fee. This SOFTWARE is licensed for use, not sold. AppPerfect and its suppliers retain all rights in the SOFTWARE.
1.2 Mechanism: The AppPerfect Java Unit Test, AppPerfect Java Code Test, AppPerfect Java Profiler, AppPerfect Web Test, AppPerfect Load Test and AppPerfect App Test products are licensed for installation on a single client machine and for use by a single user. The AppPerfect Test Manager and AppPerfect Agentless Monitor Server is licensed for the machines on which it is installed. AppPerfect Agentless Monitor is licensed for each device (as defined by the SOFTWARE ) that is monitored.
1.3 Term. The license granted herein begins upon installation, copying, downloading or use of the SOFTWARE and continues in perpetuity unless sooner terminated. Without prejudice to any other rights, AppPerfect may terminate this ASLA if You fail to comply with the terms and conditions of this ASLA.
1.4 No Copies. Except as expressly allowed by the terms of this license, You shall not copy or modify any portion of the SOFTWARE other than that You may make one (1) copy of the computer program portion of the SOFTWARE solely for archival purposes.
1.5 Other Limitations. You shall not rent, lease, loan, sell or otherwise distribute the SOFTWARE or use the SOFTWARE as an application service provider, as a service bureau, or in a fee-generating service provided to third parties. You shall not reverse engineer, decompile or otherwise attempt to derive the source code for the SOFTWARE.
2.1 Title and Ownership. All titles, ownership rights, and copyrights and other intellectual property rights in the SOFTWARE shall remain in AppPerfect and/or its suppliers. You acknowledge such ownership and intellectual property rights and will not take any action to jeopardize, limit or interfere in any manner with AppPerfect's or its suppliers' ownership of or rights with respect to the SOFTWARE. The SOFTWARE is protected by copyright and other intellectual property laws and by international treaties. Nothing in this license shall be construed as a grant in or a transfer of any proprietary rights. This SOFTWARE is licensed for user, not sold.
2.2 Proprietary Information. You agree that the SOFTWARE and all computer code, inventions, algorithms, know-how and ideas embodied in or by the SOFTWARE and all other business, technical and financial information You obtain from AppPerfect, whether designated confidential or not (hereinafter referred to as "Proprietary Information") are the confidential property of AppPerfect. You also agree that any expression of AppPerfect's findings, analyses, conclusions, opinions, recommendations, ideas, techniques, know-how, designs, programs, enhancements, SOFTWARE, and other technical information provided to You by AppPerfect in the course of performing consulting, training, maintenance or other services related to the SOFTWARE are the Proprietary Information of AppPerfect and are licensed to You, pursuant to this ASLA.
2.3 Non-Disclosure. You agree to keep the Proprietary Information in a secure place, under access and use restrictions designed to prevent disclosure of the Proprietary Information to unauthorized persons and to instruct Your personnel to keep the Proprietary Information confidential.
2.4 Breach. You agree that any disclosure of the Proprietary Information to a Third Party other than in accordance with the terms of this ASLA constitutes a material breach of this ASLA and will terminate the license granted by this ASLA.
2.5 Injunctive Relief. You further agree that You will be liable for all damages to AppPerfect that result from any wrongful disclosure of the Proprietary Information to any Third Party or any breach of this ASLA. You acknowledge that such wrongful disclosure or breach could cause irreparable injury that cannot be compensated by monetary damages and that injunctive or other equitable relief may be appropriate.
You understand and agree that AppPerfect may provide updates to the SOFTWARE from time to time but AppPerfect shall have no obligation to provide maintenance or updates to You for SOFTWARE licensed under this ASLA.
4.1 THE SOFTWARE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, APPPERFECT FURTHER DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE PRODUCT AND DOCUMENTATION REMAINS WITH YOU, THE LICENSEE.
4.2 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL APPPERFECT OR ITS SUPPLIERS BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT IMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT OR DOCUMENTATION, EVEN IF APPPERFECT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
5.1 Basis for Termination. AppPerfect may terminate this ASLA if You commit a material breach of this ASLA
5.2 Obligations Upon Termination. Upon termination of this ASLA, You will immediately destroy or return to AppPerfect all SOFTWARE and Proprietary Information in Your possession.
5.3 Effect of Termination. The following provisions shall survive termination of this ASLA: 2, 4, 5.2, 5.3, and 6.
6.1 Severability. If any provision of this ASLA is found by any court of competent jurisdiction to be invalid, then the remaining provisions shall nevertheless remain in full force and effect.
6.2 Choice of Law and Venue. This ASLA shall be governed by and construed under the laws of the State of California without regard to conflicts of laws or provisions thereof, and without regard to the United Nations Convention on Contracts for the International Sale of Goods. You agree that the federal and state courts within Santa Clara County, California shall have exclusive jurisdiction to adjudicate any dispute arising out of this ASLA.
6.3 Complete Agreement. This ASLA is the complete and exclusive statement of the mutual understanding of the parties and that it supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this ASLA. AppPerfect disclaims all preprinted terms of any purchase order or other written instrument submitted by You.
6.4 No Modification. You agree that this ASLA can be modified only by a written agreement duly executed by persons authorized to execute agreements on behalf of the parties hereto.
6.5 No Waiver. You agree that any failure or delay to exercise or any partial exercise of any right, power, or privilege hereunder by AppPerfect shall not operate as a waiver.
6.6 Attorneys' Fees. If any legal action is necessary to enforce the terms of this ASLA, the prevailing party shall be entitled to reasonable attorneys' fees and costs in addition to any other relief to which that party may be entitled.
6.7 Export Laws. You shall comply with all then current export laws and regulations of the U.S. Government and the government of the country in which You receive delivery of the SOFTWARE, which pertain to the SOFTWARE. You may not install the SOFTWARE outside of the country to which the SOFTWARE was initially shipped.
The SOFTWARE, including related documentation, is provided with Restricted Rights. The use, duplication or disclosure by the U.S. Government is subject to restrictions as set forth in this ASLA, and in the applicable provisions of subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause DFARS 252.227-7013, or subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights at 48 CFR 52.227-19. The manufacturer is AppPerfect Corporation, 333 Cobalt Way, Suite 103, Sunnyvale, CA 94085.
Should you have any questions concerning this ASLA, or if You desire to contact AppPerfect for any reason, please write:
AppPerfect Corporation, 333 Cobalt Way, Suite 103, Sunnyvale, CA 94085
This AppPerfect software contains certain third party software as listed below which are acknowledged here. These are open source software for which you may obtain source and binaries from the URL listed next to the software.