GROUNDWORK OPEN SOURCE, INC.
GROUNDWORK MONITOR CORE
PRODUCT LICENSE AGREEMENT
BEFORE YOU CLICK ON THE "I AGREE" BUTTON AT THE END OF THIS DOCUMENT OR USE THE
GROUNDWORK MONITOR CORE PRODUCT (THE "PRODUCT") MADE AVAILABLE TO YOU BY GROUNDWORK
OPEN SOURCE, INC. ("GW") OR ITS RESELLERS, CAREFULLY READ ALL THE FOLLOWING TERMS AND
CONDITIONS OF THIS AGREEMENT (THE "AGREEMENT"). IF YOU ARE USING THE PRODUCT FOR THE FIRST
TIME, AND YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE "I DON'T AGREE"
BUTTON AND DO NOT USE THE PRODUCT. IF YOU ARE THE FIRST MEMBER OF YOUR ORGANIZATION TO
ACCEPT THE TERMS OF THIS AGREEMENT, YOU WARRANT AND REPRESENT TO GW THAT YOU ARE DULY
AUTHORIZED TO AGREE TO THE TERMS OF THIS AGREEMENT ON BEHALF OF YOUR ORGANIZATION AND TO
BIND YOUR ORGANIZATION TO ITS TERMS. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY
WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU.
BY CLICKING ON THE "I AGREE" BUTTON OR USING THE PRODUCT (A) YOU ARE CONSENTING TO BE BOUND
BY AND ARE BECOMING A PARTY TO THIS AGREEMENT AND, (B) IF AN ORGANIZATION OF WHICH YOU ARE A
MEMBER HAS PREVIOUSLY ACCEPTED THE TERMS OF THIS AGREEMENT ELECTRONICALLY OR IN WRITING
FOR THE LICENSE, AND USE OF PRODUCT AND/OR RELATED SERVICES, AND YOU ARE USING ANY PART OF
THE PRODUCT AS A MEMBER OF SUCH ORGANIZATION, YOU ARE ACKNOWLEDGING THAT YOU ARE BOUND
BY THE TERMS OF THIS AGREEMENT AND ARE ALSO AGREEING THAT THE LICENSE, AND USE OF THE
PRODUCT AND RELATED SERVICES SHALL BE SUBJECT TO THE TERMS OF THIS AGREEMENT. AS USED IN
THIS AGREEMENT THE TERM "LICENSEE" REFERS TO YOUR ORGANIZATION AND INCLUDES YOU
PERSONALLY AS A MEMBER OF SUCH ORGANIZATION.
THIS AGREEMENT SHALL BE EFFECTIVE AS OF THE DATE IT IS FIRST ACCEPTED OR THE PRODUCT OR
RELATED SERVICES ARE USED BY THE Licensee. USE OF ANY PRODUCT OR SERVICES BY YOU OR THE
Licensee WHILE THIS AGREEMENT IS IN EFFECT SHALL CONSTITUTE ACCEPTANCE OF THE TERMS OF THIS
AGREEMENT BY YOU AND YOUR ORGANIZATION AS APPLICABLE TO THE PURCHASE, LICENSE, AND USE OF
ALL OR ANY PART OF SUCH PRODUCT AND RELATED SERVICES.
TERMS AND CONDITIONS
1. LICENSES
1.1.1 Unless otherwise agreed by the parties in writing, the Product shall be delivered via electronic download.
Subject to the terms and conditions of this Agreement, GW hereby grants to Licensee a limited, nonexclusive, personal,
non-sublicenseable and non-transferable license under GW's intellectual property rights to install the Product solely for its
internal use, solely in the manner specified in the Documentation and solely on the computer or device to which the
Product is downloaded. "Documentation" shall mean any specification and use documentation made available by GW to
its end user customers generally with regard to the Product.
1.1.2 Licensee may make one (1) copy of the Product and the Documentation for archival and backup
purposes, provided that Licensee will reproduce on or in such copy any copyright, trademark, trade name, or other
proprietary marking that may appear on or in the Product copied.
1.1.3 The Product includes proprietary information owned by GW or its third party licensors and the Software
and the Documentation are provided to Licensee solely under license and not by sale. GW and its third party licensors
will continue to own their respective interests and intellectual property rights in the Product.
1.1.4 Licensee shall not itself, or through any affiliate, agent, or third party: (a) decompile, disassemble, or
otherwise reverse engineer any Product, or attempt to reconstruct or discover any source code, underlying ideas,
algorithms, file formats or programming interfaces of any Product by any means whatsoever, except to the extent
applicable laws specifically prohibit such restrictions, (b) modify, adapt, translate, or create derivative works based upon
any Product (c) transfer, lease, loan, sublicense, sell, resell for profit, distribute, or otherwise grant any rights in any
Product in any form to any other party, (d) use any Product on a commercial time-sharing, rental, or service bureau basis,
or in any manner or for any purpose other than specified in the Documentation; (e) use the Product to collect and data
analyze systems which are not owned and operated by the Licensee; (f) use the Product to generate service revenues or
fees from any third party; or (g) disclose to any third party any underlying ideas or algorithms, performance information,
test results or analyses learned by Licensee or created by or for Licensee (including, without limitation, benchmarks)
relating to the Product. Licensee shall only have the rights with respect to the Product expressly set forth in this
Agreement; all other rights are expressly reserved to GW and its licensors.
1.1.5 Licensee acknowledges that the Product, and all trade secret, copyright, patent, trademark, trade name,
and other intellectual and proprietary rights in the Product, are and at all times shall remain the valuable property of GW
and its licensors, or their respective successors or assigns. Licensee agrees that, except as provided in this Section 5,
nothing contained in this Agreement shall be construed as granting or conferring by implication, estoppel, or otherwise,
any license or right under any patent, trademark, copyright, or other proprietary right, whether now existing or hereafter
obtained, and no such license or other right shall arise from this Agreement or from any acts or omissions in connection
with the execution of this Agreement or the performance of the obligations of the parties.
1.1.6 Licensee agrees (a) to respect and observe and not to alter, remove, or conceal any copyright,
trademark, trade name, or other proprietary marking that may appear on or in the Product, and (b) that Licensee is
responsible for itself obtaining any additional software, hardware, or technologies not provided by GW under this
Agreement and required to operate the Product, including but not limited to communications devices and Internet access
services. Licensee consents to the operation of the Product's communications features. Once Licensee installs the
Software, installation details will be sent in communications with GW's servers.
1.1.7 Licensee agrees to promptly notify GW of any violation of any of the terms of this Section by Licensee or
others of which it becomes aware.
1.1.8 Licensee shall not use the Product on more than 50 monitored devices.
1.2 Third Party Software. GW will redistribute certain Third Party Software to Licensee for Licensee's use with the
Product. As a condition of its use of the Third Party Software, Licensee agrees to familiarize itself with, and to comply with
and be responsible for observing, the conditions and restrictions required of software users by the owners of such Third
Party Software as referenced in a text file or notice file under the application install path. "Third Party Software" means
computer software owned by third parties, licensed to GW, and redistributed by GW to its customers as part of the
Product.
2. NO WARRANTY
The Product is provided "AS IS" and without any warranty whatsoever. GW DISCLAIMS ALL WARRANTIES RELATING
TO THE PRODUCT, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES AGAINST
INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
No GW agent or employee is authorized to make any modifications, extensions, or additions to this warranty.
3. LIMITATION OF LIABILITY
IN NO EVENT WILL GW BE LIABLE FOR ANY DAMAGES HEREUNDER, INCLUDING WITHOUT LIMITATION, ANY
LOST REVENUE, LOST PROFITS, OR CONSEQUENTIAL DAMAGES, INCLUDING ANY DAMAGES RELATING TO
COMPROMISE OF Licensee INFORMATION STORED IN THE PRODUCT, EVEN IF ADVISED OF THEIR
POSSIBILITY.
4. TERM; TERMINATION
The term of this Agreement shall continue indefinitely provided that GW may terminate this Agreement immediately upon
written or electronic notice to Licensee or by notification posted on GW's website at any time in GW's sole discretion.
Upon termination of this Agreement, Customer must destroy all copies of the Product in any form and cease all use of the
Product granted hereunder in accordance with the this Agreement. The terms in Sections 2 through 6 shall survive any
termination of this Agreement.
5. CONFIDENTIALITY
Licensee shall: (a) not disclose the Confidential Information to any third party, (b) not use the Confidential Information in
any fashion except for purposes of performing this Agreement, and (c) take steps consistent with its protection of its own
confidential and proprietary information (but in no event exercise less than reasonable care) to prevent unauthorized
disclosure of the Confidential Information. "Confidential Information" means any confidential, trade secret or other
proprietary information of GW, including without limitation the Product, disclosed by GW to Licensee or discovered by
Licensee pertaining to GW or the Product hereunder, Confidential Information shall not include information that: (i) is
public knowledge at the time of disclosure, (ii) was known by the receiving party before disclosure by the disclosing party,
or becomes public knowledge or otherwise known to the receiving party after such disclosure, other than by breach of a
confidentiality obligation, or (iii) is independently developed by the receiving party by persons without access to
Confidential Information of the disclosing party. If portions of the Confidential Information are considered non-confidential
pursuant to subsections (i) through (iii) above, the remainder of the Confidential Information must still be held in
confidence by the receiving party in accordance with the terms of this Section.
6. GENERAL
6.1 Assignment. Licensee may not assign, delegate or otherwise transfer this Agreement or any of its licenses,
rights or duties under this Agreement, whether by operation of law or otherwise, without the prior written consent of GW.
Any attempt to transfer or assign this Agreement without such written consent will be null and void. GW may in its sole
discretion assign, delegate or otherwise transfer this Agreement at any time.
6.2 Severability. If any provision of this Agreement shall be held by a court of law of competent jurisdiction to be
illegal, invalid, or unenforceable, that provision shall be reformed, construed, and enforced to the maximum extent
permissible and the remaining provisions shall remain in full force and effect.
6.3 Governing Law and Jurisdiction. This Agreement shall be governed by and construed under the laws of the
State of California without regard to conflict of laws provisions. The federal and state courts sitting in the State of
California shall have exclusive jurisdiction and venue to adjudicate any dispute arising out of this Agreement. Each party
hereto expressly consents to the personal jurisdiction of the courts of the State of California.
6.4 Customer Reference. Subscriber Agrees that GW can use Subscriber's company name and logo in connection
with marketing and promotions for GW.
6.5 Entire Agreement. This Agreement, constitute the entire understanding between the parties, and supersede all
prior discussions, representations, understandings or agreements (including any pre-existing nondisclosure agreement,
except as to its surviving terms), whether oral or in writing, between the parties with respect to the subject matter of this
Agreement. The headings and captions used in this Agreement are for convenience only, and shall not affect the
interpretation of the provisions of this Agreement.
6.6 Export Control. Licensee agrees to comply with all applicable export and re-export control laws and regulations,
including the Export Administration Regulations ("EAR") maintained by the United States Department of Commerce.
Licensee agrees to indemnify GW, to the fullest extent permitted by law, from and against any fines or penalties that may
arise as a result of Licensee's breach of this provision. This export control clause shall survive termination of this
Agreement.
6.7 Use of Customer Name. GW may include Licensee's name or logo as an GW customer in a list of
representative customers. GW agrees to display the Licensee's name or logo in compliance with any publishing standards
defined by Licensee. Prior to developing and publicizing any profile, case study or similar document published on GW's
Web site or in hardcopy describing how GW's products are used by Licensee, GW agrees to obtain Licensee's specific
approval.
6.8 Independent Contractors. The relationship of GW and Licensee established by this Agreement is that of
independent contractors, and nothing contained in the Agreement will be construed to constitute the parties as partners,
joint venturers, co-owners, or otherwise as participants in a joint or common undertaking. For a period of one (1) year
following the completion of any Services performed for Licensee under this Agreement, Licensee shall not directly or
indirectly employ, solicit for employment or contract with any GW personnel performing such Services for Licensee under
this Agreement.
6.9 Audit. While this Agreement is in effect and for a period of one (1) year after it terminates, GW will have the right
not more often than twice during any calendar year, on reasonable notice to Licensee and during normal business hours,
to conduct an audit of Licensee's books, records, and supporting documentation that relate to any of Licensee's
obligations under this Agreement.