NETVISOR LICENSE AGREEMENT (NLA)

PVSR “Standard Edition”

 

 

Please read this NETvisor License Agreement (“NLA”) carefully before clicking “I Agree”. By clicking              “I Agree”, downloading or using PVSR, you are agreeing to be bound by the terms and conditions of this NLA.  If you do not agree to the terms of this NLA, do not click “I Agree” and do not download or use PVSR.

 

This NLA is concluded by and between NETvisor (“NETvisor”), located at 56 Petzval Jozsef utca, H-1119 Budapest, Hungary, as Licensor, and the party accepting this NLA, as Licensee (hereinafter referred to as “Licensee”).

 

 

1.      Definitions

 

“PVSR” refers to the PVSR software in machine-readable object code form and the relevant Documentation owned or distributed by NETvisor.

 

„Delivery” shall mean the download of the PVSR and the Documentation by Licensee from the pvsr.net website.

 

“Documentation” shall mean the Administrative Guide, the User Guide and the Installation Guide generally distributed with PVSR.

 

“Technical Support Services (TSS)” shall mean the support services described in NETvisor’s Support Agreement. Unless expressly stated otherwise the annual TSS fee is 20% of the license fees.

 

“Updates” shall mean error corrections and maintenance updates of the Programs that NETvisor furnishes to its customers who have purchased Technical Support Services.

 

“Current Release” shall mean the latest version (subsequent release) of PVSR, which is generally made available to NETvisor’s customers at no additional license fee. Current releases are provided if and when available and NETvisor is under no obligation to develop any future programs or functionality.

 

 

2.      License Granted

 

Upon payment of the license fee NETvisor shall grant Licensee an irrevocable, non-exclusive, non-assignable license to use PVSR and the Documentation solely for Licensee’s internal business operations and subject to the terms of this NLA.

 

Licensee may allow its agents and contractors to use PVSR for the above purpose, subject to the terms of this NLA. Licensee is responsible for their compliance with this NLA. Licensee may not assign, sublicense, or otherwise transfer this license to any other entity without Licensor’s prior written consent. Licensor reserves the right, in its sole and absolute discretion, to require the payment of a transfer fee and the imposition of any additional or different license terms.

 

Licensee may copy PVSR solely for back-up purposes.  Licensee may copy Documentation for its own internal use and at its own expense.  Licensee shall reproduce and apply any and all copyright notices and trade secret legends included on or in PVSR or the Documentation to any copies, whether in whole or in part, that it makes of the PVSR or the Documentation, in whatever form.

 

 

 

 

3.      Intellectual Property Rights

 

The PVSR and the Documentation shall be the sole and exclusive property of NETvisor. All intellectual property rights, any and all right, title and interest, including, but not limited to, copyrights and patent rights, in and to PVSR and Documentation and any works of authorship shall be retained by NETvisor.

 

4.      Restrictions

Licensee may run only one copy of PVSR in its network and cannot exceed the use of 200 license points (for details re. license points, please see Documentation). Licensee may not assign, sublicense, or otherwise transfer this license to any other entity without Licensor’s prior written consent. Licensee acknowledges and accepts that NETvisor may – either by remote access or otherwise – check and verify whether Licensee complies with the terms of this NLA, including the restrictions set forth herein.

 

Licensee may copy PVSR solely for back-up purposes.  Licensee may copy Documentation for its own internal use and at its own expense.  Licensee shall reproduce and apply any and all copyright notices and trade secret legends included on or in PVSR or the Documentation to any copies, whether in whole or in part, that it makes of PVSR or the Documentation, in whatever form.

 

Licensee may not, and may not cause or permit others to:

 

• remove or modify any program or services markings or any notice of NETvisor’s or its licensors’ proprietary rights;
• make PVSR or the Documentation available in any manner to any third party;
• modify, make derivative works of, disassemble, reverse compile, reverse engineer, reproduce, distribute, republish PVSR or the Documentation or access or use PVSR in order to build or support, and/or assist a third party in building or supporting, products or services competitive to NETvisor;
• perform or disclose results of any benchmark tests or performance tests of the services PVSR without NETvisor’s prior written consent;
• license, sell, rent, lease, transfer, assign, distribute, host, outsource, disclose, permit timesharing or service bureau use or make PVSR available to any third party.

 

 

5.      Modifications

NETvisor reserves the right to modify, suspend or discontinue, temporarily or permanently, PVSR or any service to which it connects, at any time, for any or no reason, with or without notice and without any liability to Licensee.

6.      Third Party Software

 

Licensee understands and acknowledges that the proper operation of PVSR may require the use of certain software developed or marketed by third parties (“Third-Party Software”), for which Licensee must obtain license separately from the respective license owner or, if available, through NETvisor at its own expense.

 

 

7.      Fees and Payment

 

In consideration of the license granted hereunder, Licensee shall pay NETvisor a license fee set forth in ………..

 

Unless otherwise specified, all fees under this NLA are due and payable within 30 days from the date of invoice. Licensee agrees to pay any sales, value-added or other similar taxes, which NETvisor must pay based on the PVSR and Technical Support Services Licensee ordered.

 

All amounts not paid within 30 days of the invoice date shall bear interest at the rate of one and one-half percent (1.5%) per month based on the amounts due, from the date due until paid. The amount of interest shall be added to the unpaid amount due until paid. All payments shall be made in Hungarian Forints.

 

Failure by Licensee to pay any amounts when due shall constitute sufficient cause for NETvisor to suspend or terminate this NLA, including any licenses hereunder.  Licensee agrees to pay all costs, including reasonable attorneys’ fees that occur with regards to the collection of overdue and unpaid amounts.

 

8.      Technical Support

 

NETvisor provides annual Technical Support Services for PVSR. If ordered, annual Technical Support Services (including first year and all subsequent years) is provided under NETvisor’s technical support policies in effect at the time the services are provided.

 

Technical Support Services are effective upon the effective date of the order confirmation for such services.  The Technical Support Services term shall be one year. Technical Support Services may be renewed by the Licensee after the first year and, in such case, the provision of the Technical Support Services shall continue for an additional one-year term pursuant to the terms and conditions of the Technical Support Services Agreement. If Licensee does not order and pay for Technical Support Services, Licensee shall not be entitled to any Updates, technical assistance including hot-line support or other support services and may not update any unsupported PVSR with new versions thereof. The fees applicable for the TSS renewal shall be as specified in the order confirmation or based on NETvisor’s separate offer for such TSS.

 

NETvisor reserves the right to desupport PVSR. Licensee will be notified in advance if/when PVSR is being desupported.  Such desupport notices shall be sent to the Licensee in writing and shall contain the desupport date, information about migration paths for certain features. The desupport notices are subject to change.

 

NETvisor may, from time to time, and at its sole discretion decide to release a Current Release. NETvisor may cease to provide Updates or otherwise maintain or service the prior version 365 days after such release.

9.      IPR Infringement Indemnification

 

In the event any suit is brought against Licensee based on a claim that PVSR or its Documentation infringes any copyright, trade secret, patent or other property rights of any third party, Licensee’s exclusive remedy and NETvisor’s only obligation shall be, at its sole option, to

 

• replace the alleged infringing material with non-infringing materials,
• procure the right for Licensee to continue to use PVSR and the Documentation, or
• defend Licensee at NETvisor’s expense against a claim of infringement, or
• terminate the license for PVSR

 

Licensee shall promptly notify NETvisor of any claimed infringement and shall fully co-operate with and assist NETvisor in fulfilling NETvisor’s obligations hereunder. NETvisor shall have the right to control any legal actions for a claim NETvisor elects to defend.

 

NETvisor shall have no liability for any claim of patent, trade secret or copyright infringement based on or arising in connection with the use or combination of the PVSR with software not provided by NETvisor, or with any maintenance, modification or attempted modification of PVSR made by anyone other than NETvisor.

 

This section provides Licensee’s exclusive remedy for any infringement claims or damages.

 

 

 

10.   Limitation of Liability

 

Neither Party shall be liable for and indirect, incidental or consequential damages, or any loss of profits, revenue, data, or data use PVSR WHETHER OR NOT SUCH DAMAGES WERE FORESEEABLE. Except with respect to the exclusive infringement indemnification above, the Parties’ maximum liability under this NLA for direct damages shall be limited to the fees Licensee paid NETvisor under this NLA. IF such damages result from Licensee’s use of PVSR or the documentation, such liability shall be limited to the fees Licensee paid NETvisor for PVSR and THE deficient DOCUMENTATION giving rise to the liability. In no event shall the Parties’ liability arising out of or in connection with this NLA exceed the total value of this NLA.

 

 

11.   Representations and Warranties

 

NETvisor represents and warrants that it has all right, title and interest in and to PVSR and that PVSR does not infringe, and that no claim has been made by any party that PVSR infringes any patent, copyright, trade secret or similar proprietary right of any third party. Further, NETvisor represents that it has the authority to enter into this NLA and to grant the license as provided herein and that this NLA does not violate any other material agreements between NETvisor and any third parties.

 

NETvisor warrants that PVSR will operate in all material respects as described in the applicable program Documentation for one year after delivery.

 

NETvisor DOES NOT WARRANT THAT PVSR WILL PERFORM ERROR-FREE OR UNINTERRUPTED OR THAT NETvisor WILL CORRECT ALL PROGRAM ERRORS or that PVSR will operate in the combination Licensee selects for use, or operate in combination with other software.

 

• FOR ANY BREACH OF THE ABOVE WARRANTIES, Licensee’s EXCLUSIVE REMEDY, AND NETvisor’s ENTIRE LIABILITY, SHALL BE THE CORRECTION OF ERRORS THAT CAUSE BREACH OF THE WARRANTY.
• IF NETvisor CANNOT SUBSTANTIALLY CORRECT SUCH BREACH IN A COMMERCIALLY REASONABLE MANNER, Licensee MAY terminate the LICENSE AND RECOVER THE FEES PAID TO NETvisor FOR THE PVSR LICENSE AND ANY UNUSED, PREPAID TECHNICAL SUPPORT Service FEES Licensee HAVE PAID FOR THE PVSR LICENSE.

 

TO THE EXTENT PERMITTED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND IN LIEU of ANY OTHER WARRANTIES. Licensee must notify NETvisor in writing of any program warranty deficiencies within one year after delivery.

 

NETvisor shall have no warranty obligations hereunder in case:

 

• PVSR is altered or modified or is merged with other software by Licensee or any third party; or
• all or any part of PVSR is installed on any computer equipment other than the ones stated in the Documentation or used with any operating systems for which PVSR is not designed.

 

 

12.   Term and Termination

 

This NLA shall become valid as of the acceptance thereof by Licensee and shall remain in force for an unlimited period of time unless otherwise terminated earlier.

 

If Licensee breaches a term of this NLA and fails to correct the breach within 30 days after NETvisor notifies Licensee of such breach, NETvisor may terminate this NLA and Licensee’s use of PVSR and Technical Support Services. If NETvisor terminates this NLA as specified above Licensee must pay within 30 days all amounts, which have accrued prior to the end of this NLA, as well as all sums remaining unpaid for PVSR and Technical Support Services ordered.

 

Upon termination of this NLA, Licensee shall cease all use of PVSR and delete PVSR and the Documentation from Licensee’s computer.

 

 

13.   NON-DISCLOSURE

 

By virtue of this NLA, Licensee may have access to information that is confidential to NETvisor, including, but not limited to, PVSR and the Documentation and any information related thereto. Confidential Information shall not include information which:

 

• is or becomes a part of the public domain through no act or omission of the other party; or
• was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; or
• is lawfully disclosed to the other party by a third party without restriction on disclosure; or
• is independently developed by the other party.

 

Licensee agrees both during the term of this NLA and for a period of three years after termination of this NLA and of the license granted hereunder, to hold the Confidential Information in confidence.  Licensee agrees not to make the Confidential Information available in any form to any unauthorized third parties.  Licensee agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of the provisions of this NLA.

 

Licensee acknowledges and accepts that for purposes of product enhancement NETvisor may collect technical or other data (e.g. devices types monitored and their quantity, software version, specifications). NETvisor will not disclose such data to any third parties.

 

 

14.    Audit

 

NETvisor shall have the right to audit Licensee’s computer systems, books and records, at their place of keeping, for the purpose of determining whether Licensee has complied with the terms of this NLA.  NETvisor shall have the right to conduct such audit upon ten (10) days’ advance written notice no more often than twice each year. Licensee agrees to co-operate with NETvisor’s audit and provide NETvisor with reasonable assistance and access to information. Further, Licensee agrees to pay within 30 days of written notification any underpaid fees. If Licensee does not pay, NETvisor can terminate Licensee’s support, licenses and this NLA.

 

 

15.   Survival

 

The provisions of paragraphs 9 (IPR Infringement Indemnification), 10 (Limitation of Liability), 11 (Representations and Warranties), 13 (Non-disclosure) shall survive the expiration of this NLA.

 

 

16.    Governing Law and Venue

This NLA as well as all the terms not provisioned therein shall be interpreted and governed by the laws of Hungary. Parties agree to submit any disputes or disagreements to the exclusive jurisdiction of, and venue in, the ordinary courts in Budapest, Hungary.

 

 

17.   Miscellaneous

 

Severability.  If any provision or provisions of this NLA shall be held to be invalid, illegal or unenforceable, the validity and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

 

Assignments.  This NLA may not be assigned by Licensee without the express written consent of NETvisor.

 

Relationship between the Parties.  NETvisor is an independent company; nothing in this NLA shall be construed to create a partnership, joint venture, or agency relationship between the parties.  Each party will be solely responsible for payment of all compensation owed to its employees, as well as employment related taxes.

 

Entire Agreement.  This NLA contains the entire agreement between the parties with respect to the subject matter hereof and no statement or promise made by either party which is not contained herein shall be binding upon such party.

 

No Waiver.  The failure of either party at any time to enforce any provision of this NLA shall in no way affect its right thereafter to require complete performance by the other party, nor shall waiver of any breach of any provision be taken or held to be a waiver of any subsequent breach of any such provision or be a waiver of the provision itself.  Any waivers to be effective must be in writing.

 

Force Majeure. Neither Licensee nor NETvisor shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); other event outside the reasonable control of the obligated party.  Both parties shall use reasonable efforts to mitigate the effect of a force majeure event.  If such event continues for more than 90 days, either Licensee or NETvisor may cancel this NLA upon written notice.  This section does not exclude either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or Licensee’s obligation to pay for PVSR or Technical Support Services delivered.