FiveRuns Manage subscription agreement

Please read carefully prior to using this software.

This Subscription Agreement (the "Agreement") is between FiveRuns, Inc. ("FiveRuns") and the user ("Customer" or “you”) of the FiveRuns products and services set forth herein. This agreement governs the use of the Software and Services and any upgrades and updates to the Software, regardless of the delivery mechanism. The Software is a collective work under U.S. Copyright Law. Read the terms of this Agreement carefully. By downloading, installing, implementing or using the Software, you agree to the terms and conditions of this Agreement. You agree that this Agreement is enforceable as any written agreement negotiated and signed by you and FiveRuns. If you are accessing Software electronically, indicate your acceptance of these terms by selecting the “Accept” (or equivalent) button.

IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, CLICK ON THE "CANCEL" BUTTON AND/OR DO NOT INSTALL THE SOFTWARE. YOU AGREE TO BE BOUND BY THE TERMS OF THE “SALES QUOTE FORM” AS AGREED TO BY THE PARTIES AND WHICH SHALL BE INCORPORATED HEREIN BY REFERENCE. THE SOFTWARE MAY BE PROVIDED TO YOU ON A FREE OR TRIAL BASIS AT THE SOLE DISCRETION OF FIVERUNS. PERSONAL INFORMATION YOU PROVIDE TO FIVERUNS IS GOVERNED BY THE FIVERUNS PRIVACY POLICY AT: http://www.fiveruns.com/privacy

Definitions

Component: is software code, in either source or object form, which is individually authored and has its own applicable license.
Documentation: means the written materials related to the Software and provided by FiveRuns to Customer.
EULA: means an end user license agreement.
Event Management: means management of events, including asynchronous events, and the processing of notifications or alerting based on the criticality of the events.
Performance and Availability Monitoring: means monitoring of the performance aspects of hardware, platform and application software, and network components (including availability) and providing ways to tune these system to meet performance targets.
Proxy Server: means the FiveRuns proxy server.
Server Code: means the Software provided by FiveRuns to Customer to enable the use of the Services.
Service Effective Date: means the service effective date listed in the Sales Quote Form.
Services: means the Event Management, Performance and Availability Monitoring and Updates.
Software: means the Components, Trademarks and associated Documentation which comprise any FiveRuns Software Product.
Supported Platform: means hardware or a platform that functions with the Software and components contemplated for use with the Software. Information regarding the FiveRuns supportability status of hardware systems and components, as revised from time to time, can be found at http://www.fiveruns.com.
System: means the combination of the hardware, either physical or virtual, and the operating system required to make the hardware functional.
Update: means a release of the Software that FiveRuns officially makes available to Customers containing substantially only error corrections, minor new features, functionality and/or performance enhancements.

Subscription
Upon acceptance of this Agreement, FiveRuns will provide Customer a subscription for the Services listed for the number of Systems as set forth in the “Sales Quote Form”.
Services
Customer agrees to provide FiveRuns with all reasonable information and materials requested by FiveRuns and/or reasonable access to Customer’s computer systems for use in replicating, diagnosing and correcting problems with the Software as reported by Customer. Customer acknowledges that Services provided by FiveRuns may be dependent on Customer installing necessary Updates to the Software. FiveRuns will provide Customer with the following Services only for Supported Platforms as listed at http://www.fiveruns.com:
1. Updates to the Software, including changes and corrections to the Software and Documentation and improvements in functionality, but shall not include any functionality that FiveRuns provides separately, and
2. Web-based support, consisting of information on the Software through FiveRuns’ web site.
Service Conditions
Subject to the terms and conditions of this Agreement, FiveRuns grants to Customer a non-exclusive, non-transferable license to access the data and Services offered by FiveRuns, solely for Customer’s own internal purposes and not for resale to any third-party. The Services may be used only for the Systems authorized by this Agreement and only for the benefit of Customer. An entitlement for one System may not be used for another system concurrently. Unauthorized use of the Services will be a material breach of this Agreement and will result in an immediate termination of this Agreement.
License
FiveRuns hereby grants to Customer a personal, perpetual, royalty free license to the Server Code solely for the purpose of installing the Server Code to enable Customer to receive the Services as provided in this Agreement. Customer may not modify, copy, make derivative works of, distribute, reverse engineer, decompile or export the Server Code. Customer shall not remove, obscure or deface any copyright, trademark or other notice contained on any part of the Services.
Term and Termination
1. The term of this agreement shall commence on the Service Effective Date and continue for the term specified in the Sales Quote Form.
2. This Agreement be terminated by either party upon thirty (30) days written notice if the other party has breached any material provision of this Agreement unless the other Party has fully cured such breach within such thirty (30) day period.
Fees
Customer shall pay FiveRuns the fees specified in Sales Quote Form (the “Fees”) for the Software within thirty (30) days of the invoice date. All Fees paid hereunder are nonrefundable and are stated and must be paid in U.S. dollars unless otherwise specified. All amounts payable under this Agreement are exclusive of taxes and duties. Customer will pay all taxes and duties assessed by any authority in connection with this Agreement. Any payment not received within thirty (30) days of invoice date will accrue interest at a rate of one and one half percent (1.5%) per month.
Reporting and Audit
During the Term of this Agreement, Customer agrees that:
1. Customer will immediately report to FiveRuns the number of Systems that exceeds the number of Systems specified in the Sales Quote Form (“Additional Systems”). FiveRuns will invoice Customer for Additional Systems and Customer will pay Fees for Additional Systems in accordance with the terms of this Agreement.
2. Upon payment of Fees for Additional Systems, the number of Additional Systems shall be added to the Systems specified in the Attachment, and become subject to the terms of this Agreement.
3. Failure to report Additional Systems, and/or pay Fees for Additional Systems will be deemed a material breach of this Agreement by Customer.
Customer Contact
Customer must appoint one individual as its designated technical contact for the receipt of Services. The Contact shall be a system administrator level or have higher technical capability.
Software Delivery
All of the software programs provided by means of the Services (the “Software Programs”) are individually written and copyrighted, and are subject to individual EULAs that are applicable to the Software Programs. These EULAs are located in the source code to the Software Programs. Customer agrees that it is subject to each such EULA.
Intellectual Property Rights
1. The Software and each of its components, including the source code, documentation, appearance, structure and organization are owned by FiveRuns and other third-parties and are protected under copyright and other laws. Title to the Software and any Component, or to any copy, modification, or merged portion shall remain with the aforementioned, subject to the applicable license. The “FiveRuns” trademark are registered trademarks of FiveRuns in the U.S. and other countries. This agreement does not permit Customer to distribute the Software using FiveRuns’ trademarks.
2. In connection with the Services provided hereunder, FiveRuns will collect and maintain data specific to the Customer’s business (“Data”). All Data is the sole property of Customer, unless otherwise assigned to a third party. Customer grants to FiveRuns a non-exclusive license to use the Data solely in connection FiveRuns’ providing the Services to Customer.
Publicity
Customer agrees that FiveRuns may include the name, logo and success stories of Customer on FiveRuns’ website, press releases, promotional and sales literature, and advertising materials.
Confidentiality
1. FiveRuns and Customer mutually agree to use their best efforts to keep proprietary information received from the other confidential. Such material must be specifically and clearly marked as being confidential or proprietary. This Section shall not apply to any publicly available or independently developed information.
2. The Server Code and any physical media containing the Server Code and all intellectual property rights contained therein are the exclusive confidential property of FiveRuns and a valuable trade secret of FiveRuns. Upon termination of this Agreement, Customer immediately will destroy all copies of the Server Code in its possession, including the Server Code installed on the Proxy Server.
Data Rights
Customer acknowledges that FiveRuns’ Software contains functions for collecting information related to Customer’s use of the Software. Customer acknowledges and agrees that FiveRuns may collect and track non-personally identifiable information about Customer including but not limited to Customer’s IP address, the type of hardware Customer uses and the type of browser Customer employs. FiveRuns reserves the right to compile, save, use within the scope of FiveRuns’ activities, and analyze any and all of Customer’s data (registration data, and use history). FiveRuns intends to use such data for internal purposes only, including without limitation for the purposes of responding to Customer’s requests for information. FiveRuns may provide aggregated statistics about Customer’s use of the Software to third parties, but such information will be aggregated so that it does not identify a particular individual or company.
Non-solicitation
Customer will not solicit for employment or directly or indirectly induce the termination of employment of any of FiveRuns’ employees during the term of this Agreement and for the period of twelve (12) months following termination of this Agreement.
Limitation of Liability
In all events and circumstances FiveRuns’ total aggregate liability incurred in connection with this Agreement shall be limited to the Customer’s direct damages in an amount that does not exceed the amount Customer paid FiveRuns under this Agreement.
Disclaimer of Damages
Customer acknowledges and agrees that in no event whatsoever will FiveRuns have liability of any kind for any incidental, consequential, special, or punitive damages.
Warranty
FIVERUNS DOES NOT PROVIDE ANY WARRANTY WITH RESPECT TO THE SERVICES OR SOFTWARE PROVIDED UNDER THIS AGREEMENT. THE SERVICES AND ANY SOFTWARE ARE PROVIDED TO CUSTOMER "AS IS" AND WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON- INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. THIS IS THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY FIVERUNS (EXPRESS OR IMPLIED) WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT.
Indemnification
Customer will defend, indemnify and hold FiveRuns and its officers, directors, employees and agents, harmless from and against any third party claim arising out of the unauthorized use of the Services by Customer or its employees, representatives or agents.
Governing Law/Consent to Jurisdiction
The validity, interpretation and enforcement of this Agreement shall be governed by and construed in accordance with the laws of the State of Texas. Customer hereby consents to federal jurisdiction in either state or federal court in Texas
Export Responsibilities
FiveRuns may supply Customer with technical data that may be subject to export control restrictions. FiveRuns shall not be responsible for compliance by Customer with applicable export obligations or requirements for such technical data. Customer agrees to comply with all applicable export control restrictions.
Assignment
Customer may not assign this Agreement or delegate its obligations without prior written consent of FiveRuns, which shall not be unreasonably withheld. The consent of FiveRuns to any assignment of this Agreement shall not constitute FiveRuns’ consent to further assignment. Any attempt by Customer to assign any of the rights, duties, or obligations of this Agreement without such consent is void. This Agreement is assignable by FiveRuns at its discretion.
General
If any provision of this agreement is held to be unenforceable, that shall not affect the enforceability of the remaining provisions. This agreement shall be governed by the laws of the State of Texas and of the United States, without regard to any conflict of laws provisions, except that the United Nations Convention on the International Sale of Goods shall not apply.
Force Majeure
Neither party shall be liable for nonperformance or delays caused by acts of God, wars, riots, strikes, fires, floods, earthquakes, government restrictions or other causes beyond its control. In the event of the occurrence of any of the foregoing, the date of performance shall be deferred for a period of time equal to the time lost by reason of the delay. The affected party shall notify the other in writing of such events or circumstances promptly upon their occurrence.
Complete Agreement
This Agreement constitutes the complete contract between the parties and supersedes all prior or contemporaneous communications, agreements and understanding, written or oral, including without limitation, purchase orders, with respect to the subject matter hereof. This Agreement shall not be amended or modified except in a writing signed by authorized representatives of each party.
Survival
Any provision of this Agreement that may reasonably be expected to survive its termination, including but not limited to, Services Conditions, Software Delivery, Confidentiality, Limitation of Liability, Disclaimer of Damages and Warranty, shall survive the termination of this Agreement.