The "Software" shall be defined as the software, hosted services, electronic reports, analyses, documentation or Auxiliary Programs provided by Ruxit under this Agreement which are necessary to deploy the licensed product. Client shall have the right to use the Software ordered and made available to Client by Ruxit hereunder for their internal use. "Auxiliary Program" means any software, agent or equipment that Ruxit makes available to Client as part of the Software for purposes of facilitating access to, operation of, and/or use with, the Software.
Client shall not: (a) reverse engineer, decompile, decode, decrypt, disassemble, or in any way derive source code from the Software; (b) modify, translate, adapt, alter, or create derivative works from the Software; (c) copy, distribute, publicly display, transmit, make available in any "public" area or accessible on the World Wide Web; (d) sublicense, sell, rent, or lease the Software; or (e) use the Software for the purposes of competing with Ruxit, including without limitation competitive intelligence or analysis.
Ruxit reserves the right to connect to Client's systems on which the Software is installed for the purpose of collecting billing, support and statistical information. Client shall not interfere with Ruxit in the collection of such information.
Client shall pay Ruxit the amounts set forth on any invoice resulting from this Agreement within thirty (30) days of the date of the invoice. Overdue invoices shall bear interest at 1.5% per month or such lower rate as shall be the then highest rate permitted by law. Client shall pay all applicable taxes due under this Agreement, except taxes based on Ruxit's net income unless Client provides Ruxit with a properly completed exemption certificate. All prices are exclusive of all taxes, duties, VAT, withholdings and other governmental assessments. Ruxit reserves the right to suspend Software, if Client fails to pay as provided herein.
Client acknowledges and agrees that all ownership and proprietary rights to the Software and the contents thereof and all related intellectual property are and shall remain the property exclusively of Ruxit. Ruxit retains full rights of ownership and use in: (a) any programs, products, materials or methodologies or materials of Ruxit created and/or developed by Ruxit prior to or independently of the Software contemplated herein ("Pre-existing Works"); and (b) all materials, methodologies, processes, techniques, ideas, concepts, trade secrets, and know-how, which may be created or developed in connection with the Software and are modifications and/or derivatives of Ruxit's Pre-existing Works.
Each party agrees: (a) that it will not disclose to any third party or use any confidential or proprietary information disclosed to it by the other party (collectively, "Confidential Information") except as expressly permitted in this Agreement; and (b) that it will take all commercially reasonable measures to maintain the confidentiality of all Confidential Information of the other party in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of similar importance. Confidential Information will not include information that: (i) is in or enters the public domain without breach of this Agreement; (ii) the receiving party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation; or (iii) the receiving party develops independently.
Client agrees that the Software: i) is Confidential Information; and ii) constitutes valuable assets and confidential trade secrets of Ruxit. Client therefore agrees to keep in confidence and protect the Service, including but not limited to screenshots, ideas, concepts, designs, specifications, computer programs and strategies from disclosure to third parties and restrict its use as provided in this Agreement.
The term ("Term") of the Licensed Software shall be specified as specified on the Ruxit website.
Ruxit warrants that the Software will function in substantial compliance with their specifications published by Ruxit (available at help.ruxit.com). Client acknowledges that changes by Client to its monitoring profile or corrupted, incomplete and/or interrupted data received by Ruxit from Client's site(s), may have a material impact on the accuracy, reliability and/or timeliness of Service results, and Ruxit shall not be responsible for any such factors beyond its reasonable control. THE ABOVE WARRANTIES ARE RUXIT'S ONLY WARRANTIES AND NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WILL APPLY.
Client represents and warrants that Client shall; (i) abide by all laws, rules and regulations; and (ii) be responsible for all content or materials originating from its Web site(s) (its "Content").
THE ENTIRE LIABILITY OF RUXIT AND CLIENT'S EXCLUSIVE REMEDY FOR DAMAGES FROM ANY CAUSE RELATED TO OR ARISING OUT OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE, WILL NOT EXCEED ANY FEES PAID, IF ANY, BY CLIENT UNDER THIS AGREEMENT FOR THE SOFTWARE GIVING RISE TO THE CLAIM OVER THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD.
IN NO EVENT WILL RUXIT BE LIABLE FOR: (I) INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES; OR (II) LOSS OF OR DAMAGE TO CLIENT'S DATA FROM ANY CAUSE, INCLUDING WITHOUT LIMITATION LOSS OF USE, REVENUES, PROFITS, SAVINGS, EVEN IF RUXIT KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
Each party (the "Indemnifying Party") shall indemnify, defend and hold harmless the other party and such other party's officers, directors, employees and agents (each, an "Indemnified Party") from and against any and all damages, liabilities, costs and expenses (including reasonable attorneys' fees) incurred by an Indemnifying Party's breach (i) of any obligation set forth in sections 2.0 (Scope of the Service; Restrictions) or 5.0 (Confidentiality).
This section shall only apply if the Software has been provided to Client for participation in the "Early Access Program" for a new release of Ruxit Managed. Client acknowledges that the Software are in a stage of "Early Adoption" and is provisioned for test purposes only. Therefore, Software shall only be installed on computers which are regularly used by the Client for test purposes and are the property of or are permanently owned by the Client ("Designated Computers"). The use of Software in a productive environment without any additional testing or adaptation to the specific requirements of an individual system environment may cause severe system failure.
The Early Access Program is provided AS IS, with no warranties, express or implied. Client agrees that due to the nature of the Early Access Program, Client may receive non-public technology, know-how and trade secrets, including, without limitation, ideas, concepts, designs, specifications, computer programs and strategies. Client agrees that the foregoing shall be treated as Confidential Information as specified in section 5.0 (Confidentiality).
Premium support for the Software is available on a subscription basis. Such support is provided AS IS, with no warranty, express or implied. Expert services are available on demand, on an hourly bases, at the Ruxit then-current rates.
Any attempt to assign this Agreement, without written consent, will be null and void.
Neither party will be responsible for any failure to perform due to causes beyond its reasonable control, including, but not limited to, acts of God, war, acts of terrorism, riot, failure of electrical, Internet, co-location or telecommunications service, acts of civil or military authorities, fire, floods, earthquakes, accidents, strikes, or fuel crises.
This Agreement will be governed by and construed in accordance with the laws of the State of Massachusetts without regard to its conflicts of law principles. If the entity selling the Service is a wholly owned affiliate of Dynatrace LLC, this Agreement will be governed by the laws of the country in which such affiliate is situated.
Any notice required by this Agreement must be given in writing and shall be deemed delivered upon receipt when delivered personally or upon confirmation of receipt following delivery by internationally recognized overnight courier service.
No failure or delay by any party in exercising any right, power, or remedy under this Agreement, except as specifically provided herein, shall operate as any waiver of any such right, power, or remedy.
If any provision of this Agreement is held by a court to be invalid or unenforceable for any reason, the remaining provisions will continue in full force and effect without being impaired or invalidated in any way.
Sections 5, 7, 8, 9, 10 and 13 shall survive expiration or termination of this Agreement.