SIERRAWARE END USER LICENSE AND SERVICES AGREEMENT
I. Acceptance of Terms. By Using the Software, You agree to be bound by the terms of the EULA. If you are entering this EULA on behalf of an entity, you represent that you have authority to bind that entity. If you do not have such authority or you do not agree to the terms of the EULA, neither you nor the entity may Use the Software.

II. License. Subject to payment of the applicable fees and compliance with this EULA, Sierraware grants a limited, non-exclusive and non-transferable license to Use object code versions of the Software and the Documentation solely for internal operations and in accordance with the Entitlement and the Documentation. The license is valid only if the registration is complete and accurate. The Software may contain open source software, subject to separate license terms made available with the Sierraware Software or Documentation. The Software is licensed for a specified term, the license is valid solely for the applicable term in the Entitlement. The right to Use the Software begins on the date the Software is made available for download or installation and continues until the end of the specified term, unless otherwise terminated in accordance with this Agreement.

III. Ownership. Sierraware retains ownership of all intellectual property rights in and to the Software, including copies, improvements, enhancements, derivative works and modifications thereof. Your rights to Use the Software are limited to those expressly granted by this EULA. No other rights with respect to the Software or any related intellectual property rights are granted or implied.

IV. Limitations and Restrictions: Licensee will not allow

    transfer, sublicense, or assign rights under this license to any other person or entity, unless expressly authorized by Sierraware in writing;
    modify, adapt or create derivative works of the Software or Documentation;
    reverse engineer, decompile, decrypt, disassemble or otherwise attempt to derive the source code for the Software;
    Use Software that is licensed for a specific device, whether physical or virtual, on another device, unless expressly authorized by Sierraware in writing;
    remove, modify, or conceal any product identification, copyright, proprietary, intellectual property notices or other marks on or within the Software;

V. Third Party Use of Software. Licensee may permit a third party to Use the Software, if such Use is in compliance with this EULA. Licensee is liable for any breach of this EULA by third party.

VI. Limited Warranty and Disclaimer

    Limited Warranty. Sierraware warrants that the Software will substantially conform to the applicable Documentation for the longer of (i) ninety (90) days following the date the Software is made available to You for your Use or (ii) as otherwise set forth at http://www.Sierraware.com/warranty. This warranty does not apply if the Software, Sierraware product or any other equipment upon which the Software is authorized to be used: (i) has been altered, except by Sierraware or its authorized representative, (ii) has not been installed, operated, repaired, or maintained in accordance with instructions supplied by Sierraware, (iii) has been subjected to abnormal physical or electrical stress, abnormal environmental conditions, misuse, negligence, or accident; (iv) is licensed for beta, evaluation, testing or demonstration purposes or other circumstances for which the Approved Source does not receive a payment of a purchase price or license fee; or (v) has not been provided by an Approved Source. Sierraware will use commercially reasonable efforts to deliver to You Software free from any viruses, programs, or programming devices designed to modify or damage your data.
    Exclusive Remedy. At Sierraware’s option and expense, Sierraware shall repair, replace, or cause the refund of the license fees paid for the non-conforming Software. This remedy is conditioned on You reporting the non-conformance in writing to Your Approved Source within the warranty period. The Approved Source may ask You to return the Software, the Sierraware product, and/or Documentation as a condition of this remedy. This Section is Your exclusive remedy under the warranty.
    Disclaimer. Except as expressly set forth above, Sierraware and its licensors provide Software “as is” and expressly disclaim all warranties, conditions or other terms, whether express, implied or statutory, including without limitation, warranties, conditions or other terms regarding merchantability, fitness for a particular purpose, design, condition, capacity, performance, title, and non-infringement. Sierraware does not warrant that the Software will operate uninterrupted or error-free or that all errors will be corrected. In addition, Sierraware does not warrant that the Software or any equipment, system or network on which the Software is used will be free of vulnerability to intrusion or attack.

VII. Limitations and Exclusions of Liability. In no event will Sierraware or its licensors be liable for the following, regardless of the theory of liability or whether arising out of the use or inability to use the Software or otherwise, even if a party been advised of the possibility of such damages: (a) indirect, incidental, exemplary, special or consequential damages; (b) loss or corruption of data or interrupted or loss of business; or (c) loss of revenue, profits, goodwill or anticipated sales or savings. All liability of Sierraware, its affiliates, officers, directors, employees, agents, suppliers and licensors collectively, to You, whether based in warranty, contract, tort (including negligence), or otherwise, shall not exceed the license fees paid by You to any Approved Source for the Software that gave rise to the claim. This limitation of liability for Software is cumulative and not per incident. Nothing in this Agreement limits or excludes any liability that cannot be limited or excluded under applicable law.

VIII. Upgrades and Additional Copies of Software. Notwithstanding any other provision of this EULA, You are not permitted to Use Upgrades unless You, at the time of acquiring such Upgrade:

    already hold a valid license to the original version of the Software, are in compliance with such license, and have paid the applicable fee for the Upgrade; and
    comply with updated written terms of Software License agreement and updated EULA.

IX. Audit. During the license term for the Software and for a period of three (3) years after its expiration or termination, You will take reasonable steps to maintain complete and accurate records of Your use of the Software sufficient to verify compliance with this EULA.

X. Term and Termination. This EULA shall remain effective until terminated or until the expiration of the applicable license or subscription term. You may terminate the EULA at any time by ceasing use of or destroying all copies of Software. This EULA will immediately terminate if You breach its terms, or if You fail to pay any portion of the applicable license fees and You fail to cure that payment breach within thirty (30) days of notice. Upon termination of this EULA, You shall destroy all copies of Software in Your possession or control.

XI. Transferability. You may only transfer or assign these license rights to another person or entity after receiving a written approval from Sierraware. Any attempted transfer or, assignment not in compliance shall be void and of no effect.

XII. Export. Sierraware Software, products, technology and services are subject to local and extraterritorial export control laws and regulations. User must comply with such laws and regulations governing use, export, re-export, and transfer of Software, products and technology and will obtain all required local and extraterritorial authorizations, permits or licenses.

XIII. Consequential Damages Waiver. LICENSEE AGREES SIERRAWARE WILL NOT BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST PROFITS) REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF SIERRAWARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES

XIV. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, U.S.A., notwithstanding any conflict of laws principles. The parties agree that the exclusive venue for any dispute arising under this Agreement shall be in the State Courts of the County of Santa Clara, California and the Federal Courts of the Northern District of California, and the parties hereby consent to the exclusive jurisdiction thereof. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.