PLEASE READ THIS AGREEMENT CAREFULLY BEFORE PURCHASING OR USING NAGIOS SOFTWARE. BY PURCHASING OR USING NAGIOS ENTERPRISES' SOFTWARE, YOU SIGNIFY YOUR ASSENT TO THIS AGREEMENT. IF YOU ARE ACTING ON BEHALF OF AN ENTITY, THEN YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THAT ENTITY. IF YOU DO NO ACCEPT THE TERMS OF THIS AGREEMENT, THEN YOU MUST NOT PURCHASE OR USE NAGIOS SOFTWARE.
This Software License Terms and Conditions Agreement ("Agreement") is a legal agreement between Nagios Enterprises, LLC ("Nagios Enterprises") and the purchaser or user of Nagios Software ("Customer"). The effective date of this Agreement ("Effective Date") is the earlier of the date that Customer signs or accepts this Agreement or the date that Customer purchases or begins using Nagios Software.
1 DEFINITIONS
For the purposes of this Agreement, the following terms shall have the following meanings:
1.1 Nagios Software. All commercial and proprietary software programs, configurations, scripts, images, and intellectual property contained in Nagios Enterprises' commercial products and developed by, owned by, or licensed to Nagios Enterprises, with the exclusion of Third Party Software.
1.2 Third Party Software. Any software programs, configurations, scripts, images, and intellectual property contained in or distributed with Nagios Enterprises' products, with the exclusion of Nagios Software, made available in source code, object code form, or other format. Licenses for each Third Party Software component is subject to a separate license that accompanies, is embedded in, or is referenced by such component.
1.3 Licensed System. Configurations and installations of Nagios Software on computer hardware, computer systems, operating systems, embedded devices, and virtual appliances for which Customer has paid all applicable License Fees, and has agreed to be bound to the terms of this Agreement.
1.4 Derivative Product. Any product or service that results from the incorporation of, modification of, or integration with Nagios Software, whereby Nagios Software or the functionality of any part of Nagios Software becomes an integral part of the resulting product or service.
1.5 Permitted Use. The use of Nagios Software on Licensed Systems by Customer for internal business purposes only, without use in a Derivative Product, as a hosted service, or in any product or service intended for resale.
1.6 Support Plan. An annual, renewable phone or email support service subscription to which the Customer may optionally subscribe for Nagios Software by entering into a separate agreement with Nagios Enterprises.
1.7 Support Services. Technical support services provided to Customer under the terms of a Support Plan.
1.8 Software Update. Any enhancement to the current version of the Nagios Software that Nagios Enterprises generally releases or generally makes available to Nagios Enterprises' other customers. A Software Update is any new version of the Nagios Software denoted by a change in the version number (e.g. 2009R1 to 2009R2). Customer is responsible for acquiring, at their own cost, any updated or additional hardware, network resources, and software necessary to implement or use any Software Update.
1.9 License Fee. The then-current list price for the applicable Nagios Software purchased. All License Fees are due in advance of Permitted Use.
2 LICENSE GRANT
Subject to the terms of this Agreement and full payment of License Fees as set forth in Section 4 of this Agreement, Nagios Enterprises hereby grants Customer a perpetual, non-exclusive, non-transferable, non-assignable, non-sublicensable right to use the Nagios Software for Permitted Use on the Licensed Systems.
3 EXCEPTIONS TO LICENSE
3.1 Unless expressly provided by mutual agreement of Nagios Enterprises and Customer in writing, Nagios Software does not include support which is necessitated as a result of the following causes:
3.1.1 accident, neglect, misuse, abuse or default of or by the Customer, Customer's employees or agents, or any third party; or
3.1.2 any fault in attachments or associated products, components, hardware, or software (whether or not supplied by Nagios Enterprises or its affiliates) which do not form part of the supported system covered by this Agreement and/or under a relevant Support Plan; or
3.1.3 Customer's failure to abide by Section 5 of this Agreement; or
3.1.4 Customer's failure to install the most recent Software Update made available to Customer, which Nagios Enterprises affirms to Customer resolves the failure reported by Customer; or
3.1.5 any fault in the Nagios Software caused by the failure of any products or components not supplied by Nagios Enterprises or its affiliates; or
3.1.6 any fault in Nagios Software which has been modified or damaged in any manner by any person of entity other than Nagios Enterprises; or
3.1.7 an act of God, lightning, fire, flood, war, act of violence or any similar occurrence.
3.2 Unless expressly provided by mutual agreement of Nagios Enterprises and Customer in writing and/or by the terms of a Support Plan, Support Services do not include:
3.2.1 the support of non-Supported Software ("Other Software"), Third Party Software and non-Supported Systems ("Other Systems"), even though they may have been supplied by Nagios Enterprises or its affiliates; or
3.2.2 customization or integration of new version or updates of the Nagios Software; or
3.2.3 the support of any modified of customized version of the Nagios Software; or
3.2.4 the support of any attachments or associated products which do not form part of the Nagios Software and Licensed Systems.
4 PAYMENT
4.1 Fees and Expenses. License Fees are stated in United States Dollars, must be paid in United States Dollars, and are exclusive of out-of-pocket expenses. Customer will reimburse Nagios Enterprises for reasonable expenses incurred in connection with the performance of additional services involving travel. Unless otherwise stated in this Agreement, any renewal of this Agreement will be at the same price per Licensed System paid during the initial term. The parties agree that the terms of this Agreement will govern future purchases by Customer of additional units of any or all of the Licensed Systems listed herein. Unless otherwise agreed by the parties in writing, during the term of this Agreement, such additional units can be purchased and renewed at the rates set forth herein, exclusive of expenses, if any.
4.2 Invoices. If Customer is paying by credit card, Customer authorizes Nagios Enterprises to bill Customer's credit card for the License Fees for the Initial Term and for the amount due at the time of renewal. If Nagios Enterprises has approved Customer to be invoiced, Nagios Enterprises will invoice Customer for the Fees at the time of execution of this Agreement and upon the submission of any future purchase order. Any and all payments made by Customer pursuant to this Agreement are non-refundable. Customer will make payment within thirty (30) days of the date of the invoice; provided, however, that License Fees for Nagios Software are due prior to the delivery of such Nagios Software. Nagios Enterprises reserves the right to suspend or cancel performance of all or part of the Licensed Systems and/or change its credit terms if actual payment has not been received within sixty (60) days of the invoice date.
4.3 Taxes. All Support Fees are exclusive of any Taxes. Customer will pay to Nagios Enterprises an amount equal to any Taxes arising from or relating to this Agreement, including without limitation, sales, service, use or value added taxes, which are paid by or are payable by Nagios Enterprises. "Taxes" means any form of taxation, levy, duty, customs fee, charge, contribution or impost of whatever nature and by whatever authority imposed (including without limitation any fine, penalty, surcharge or interest), excluding, however, any taxes based solely on the net income of Nagios Enterprises. If Customer is required under any applicable law or regulation, domestic or foreign, to withhold or deduct any portion of the payments due to Nagios Enterprises, then the sum payable to Nagios Enterprises will be increased by the amount necessary so that Nagios Enterprises receives an amount equal to the sum it would have received had Customer made no withholdings or deductions.
5 INTELLECTUAL PROPERTY
5.1 Ownership. Notwithstanding anything to the contrary in this Agreement, and except for the limited license rights expressly provided herein, Customer acknowledges that Nagios Enterprises and is suppliers have and will retain all rights, title and interest in and to the Nagios Software, Derivative Products, and all copies, modifications, and derivative works of the Nagios Software, including, without limitation, all patent, copyright, trademark, trade secret, trade dress, and other intellectual property rights. Customer acknowledges that it is obtaining only a limited license right to the Nagios Software and that no ownership rights are being conveyed to Customer under this Agreement or notice. Customer agrees not to register or attempt to register, directly or indirectly and intellectual property rights of Nagios Enterprises or its suppliers.
5.2 Build Exceptions. Notwithstanding anything to the contrary in this Agreement, Nagios Enterprises grants Customer the right to build, develop, produce, sell, and distribute addons and extensions for Nagios Software (each a "Nagios Addon") that utilize, interface with, or make use of the Nagios Software APIs, so long as each Nagios Addon is designed to operate, and functionally operates, as an integral part of the Nagios Software.
5.3 Confidentiality. Neither the Customer nor its employes or agents shall cause or allow the Nagios Software or any information or data identified as Nagios confidential, trade secret, or proprietary information to be disclosed to third parties, duplicated, or used except as expressly permitted in this Agreement. Customer shall take all reasonable steps, both during and after the term of this Agreement, to ensure that no authorized parties or persons will have access to Nagios Software and that no unauthorized copy, distribution or disclosure, whether in whole or in part, is made in any form.
5.4 Reverse Engineering. Portions of the Nagios Software may contain intellectual property which is licensed to or from Nagios Enterprises or its suppliers and may be protected by means of encryption, encoding, license management, obfuscation, or other means of intellectual property protection (collectively "Rights Licensing Mechanisms"). Customer acknowledges that it will not reverse engineering, attempt to reverse engineer, or disclose, in any manner, directly or indirectly, any portions of the Nagios Software protected by such Rights Licensing Mechanisms.
5.5 Marks and Notices. All copies of the Nagios Software, whether in altered or unaltered form, must include all trademarks, servicemarks, and copyright notices (collectively the "Visible Marks") - including size, location, color, and visibility characteristics of the Visible Marks - that appear in the unaltered, original copies of the Nagios Software.
5.6 Trademarks. No right, license, or permission to use any of Nagios Enterprises' trademarks, servicemarks, registered trademarks, or registered servicemarks (collectively the "Trade Names") is granted by this Agreement. Customer acknowledges and agrees that it will not use any Trade Names in any manner not explicitly granted by Nagios Enterprises.
5.7 Prior Incidents. Customer agrees and acknowledges that in the event that it, or any of its employees or agents, violated, or allegedly violated, any terms of this Section 5 of the Agreement prior to the Effective Date (each violation or alleged violation a "Pre-Term Incident"), any and all Pre-Term Incidents will be considered to be subject to, and actionable under, the terms of this Section 5 of the Agreement.
5.8 Remuneration. Customers agrees and acknowledges that in the event that it, or any of its employees or agents, violates or allegedly violates any terms of this Section 5 of the Agreement (each violation or alleged violation an "Actionable Breach"), Customer shall be held directly accountable and responsible to Nagios Enterprises for all damages, financial, and otherwise, for said Actionable Breach. Customer acknowledges and agrees to pay all attorney, prosecution, arbitration, and other fees incurred or realized by Nagios Enterprises, whether actual or estimated, in Nagios Enterprises' course of action against Customer for Actionable Breaches. Customer acknowledges that Nagios Enterprises, at its sole discretion, may choose to forgo or delay any action against Customer in relation to Customer's Actionable Breach. Customer acknowledges that such delays or foregoings on Nagios Enterprises' part shall have no ill effect on Nagios Enterprises' rights, or on further remedies from Customer for violation or alleged violation of one or more terms of this Section 5. This Section 5 of the Agreement shall survive the termination of this Agreement.
6 CUSTOMER'S OBLIGATIONS
6.1 During the continuance of this Agreement, the Customer shall:
6.1.1 Facilities.
6.1.1.a Provide Nagios Enterprises with full, safe and prompt access to the Nagios Software, Licensed Systems, and other Customer information, systems, and software ("Customer Information") as reasonably requested by Nagios Enterprises to enable Nagios Enterprises to carry out its obligations under this Agreement. Customer understands and agrees that the completeness and accuracy of and extent of access to the Customer Information provided to Nagios Enterprises may affect Nagios Enterprises' ability to provide Support Services. Customer will obtain any third party consents necessary to grant Nagios Enterprises access to Customer Information that is subject to proprietary right of, or controlled by, any third party. Customer may, for legitimate security concerns, deny Nagios Enterprises certain access to Customer Information and the Licensed Systems, provided, however, that Nagios Enterprises shall be relieved from performing Support Services which reasonably require such access.
6.1.1.b Make available to Nagios Enterprises, free of charge, all facilities and services reasonably required by Nagios Enterprises to enable Nagios Enterprises to provide the Support Services as defined under a separate agreement.
6.1.1.c Provide such telecommunication facilities as are reasonably required.
6.1.2 Use and Care.
6.1.2.a Save for discrete additions generally recognized as being compatible with the Nagios Software and Licensed Systems, not make any modifications to the Nagios Software or Licensed Systems without Nagios Enterprises' prior consent.
6.1.2.b Ensure that Nagios Software and Licensed Systems are used in a proper manner, in accordance with the Nagios Software user manuals and by competent trained employees only or by persons under their supervision.
6.1.2.c Test all updates and modifications to the Nagios Software and Licensed Systems prior to implementing them in Customer's environment in accordance with best computing practices. NAGIOS ENTERPRISES WILL NOT BE RESPONSIBLE FOR LOSS OF OR DAMAGE TO DATA OR LOSS OF USE OF ANY OF THE CUSTOMER'S COMPUTER OR NETWORK SYSTEMS.
6.1.3 Notification and Information.
6.1.3.a Make available to Nagios Enterprises, free of charge, such information as may be necessary to enable Nagios Enterprises properly to conduct email and telephone diagnosis as part of the Support Service, and in addition, such programs, operating manuals and information to enable Nagios Enterprises properly to perform its obligations under this Agreement .
6.1.3.b Use its best endeavors to provide staff familiar with the Customer's programs and operations, which staff shall co-operate fully with Nagios Enterprises personnel operating the Support Service (the "Technicians") in the diagnosis of any malfunction of the Supported Software or Supported Systems.
6.1.3.c Keep full backups and copies of any of the Supported Software, Supported Systems, databases, configuration, and computer records in accordance with best computing practices before requesting Support Services from Nagios Enterprises. Customer acknowledges they are responsible for re-loading their own application software, computer data, and records after any such Support Services have been provided. It is the Customer's responsibility to backup data on the Supported Systems. NAGIOS ENTERPRISES WILL NOT BE RESPONSIBLE FOR LOSS OF OR DAMAGE TO DATA OR LOSS OF USE OF ANY OF THE CUSTOMER'S COMPUTER OR NETWORK SYSTEMS.
6.2 To receive Support Service, the Customer is responsible for complying with the following:
6.2.1 Conform to the Support Guidelines. Conform to any and all guidelines specified in the Support Guidelines, which may be updated from time to time. Customer is responsible for ensuring they are aware of and follow the latest Support Guidelines published on Nagios Enterprises' web site.
6.2.2 Prepare for the Support Request. The Customer can help the Support Team serve them better if the Customer has the following information when the Support Request is made: the Customer's customer number; and the current version of the Supported Software being used.
6.2.3 Explain the problem to the Support Team. The Customer should describe the problem the Customer is having with the Supported Software or Supported System. Let the Support Team know what errors occurred and when they occurred; what was being done when the errors occurred; and what steps have already been taken to solve the problem.
6.2.4 Cooperate with the Support Technician. Pay careful attention to the Support Technician and follow the Support Technician's directions.
6.2.5 If the Support Technician is unable to resolve the problem over the phone or via email, the Support Technician will recommend to the Customer the next course of action to be taken.
UNTIL THE CUSTOMER HAS COMPLIED WITH THE ABOVE PROCEDURES, NAGIOS ENTERPRISES CANNOT PROVIDE THE CUSTOMER WITH SERVICE.
7 TERM AND TERMINATION
7.1 Term. The term of this Agreement and the provision of Support Services hereunder begins on the Effective Date and continues for the period of one (1) year. Thereafter, the the term for the Support Services will renew for successive one (1) year terms, unless either party gives written notice to the other of its intention not to renew at least thirty (30) days before commencement of the next term.
7.2 Termination. If Customer or Nagios Enterprises materially breaches the terms of this Agreement, and such breach is not cured or remedied within thirty (30) days after written notice of the breach is given to the breaching party, then the other party, by giving written notice of termination to the breaching party, may terminate this Agreement; provided, however, that no cure period will be required for a breach of Section 11 hereof. Nagios Enterprises reserves the right to terminate this Agreement at any time within thirty (30) days after written notice to Customer. Without prejudice to any other right or remedy of Nagios Enterprises, in the event either party terminates this Agreement, Customer will pay Nagios Enterprises for all Nagios Software provided up to the effective date of termination.
7.3 Effect of Termination. If this Agreement is terminated for any reason, Sections 4, 5, 7.3, 9, 10.2, 11, 12, 13.2, 14, 15, and 16 of this Agreement will survive such termination.
continued, full license info:
https://www.nagios.com/legal/licenses/