LICENSE AGREEMENT FOR STRESSTIMULUS, Stimulus Technology's SOFTWARE (October 2013)
IMPORTANT: CAREFULLY READ THE FOLLOWING LICENSE AGREEMENT ("AGREEMENT"). YOU ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT BY CLICKING THE OPTION LABELED "I accept this License Agreement" THAT IS DISPLAYED BELOW. IF YOU DO NOT AGREE TO THIS AGREEMENT, CLICK THE BUTTON LABELED "CANCEL" AND THE SOFTWARE WILL NOT BE INSTALLED. THE TERMS OF THIS AGREEMENT ALSO APPLY TO ANY Stimulus Technology SOFTWARE UPDATES, SUPPLEMENTS, INTERNET-BASED SERVICES, AND SUPPORT SERVICES FOR THIS SOFTWARE, UNLESS OTHER TERMS ACCOMPANY THOSE ITEMS.
1. DEFINITIONS
1.1 "CUSTOMER" or "You" means the person or company who is being licensed to use the Software.
1.2 "Stimulus Technology" means Stimulus Technology, a New Jersey LLC.
1.3 "Software" means a Software Application and a Software Components, which works in conjunction with 3-rd party applications, providing performance testing functionality by executing load tests, and all of their editions, collectively called StresStimulus. Software also includes any corresponding Documentation.
1.4 "Documentation" means instructional information built in the Software, and can also include any help files, instructions, manuals, specifications, materials and media content provided by Stimulus Technology in printed, electronic or on-line format, whether via its website or support forum web site, which describes the use of the Software and either accompany the Software or are provided at any time.
1.5 "Virtual User" (VU) is the process that simulates the behavior of a real user of the system to test.
1.6 "Product Receipt" means a receipt, invoice, an email from Stimulus Technology or its payment processor(s) to CUSTOMER or a combination of thereof, associated with the completed purchase transaction of the Software license or Software subscription, containing any of the following information: product name, Stimulus Technology's stock-keeping unit (SKU) number, License Type(s), purchased price, amount of purchased licenses, serial number (Activation Key), capped number of VU or license duration for time-limited license. Stimulus Technology or its payment processor(s) may send an email to CUSTOMER with a web link to CUSTOMER'S Product Receipt available on-line.
1.7 "Trial Notification" means an email from Stimulus Technology notifying CUSTOMER about granting an Extended Trial License of the Software. The Trial Notification email contains an Activation Key issued for the trial license duration.
1.8 "Software-Operated Computer" is a computer or computer device, compatible with the Software, where the Software is installed and operated from time to time. A Software Operated Computer can operate as a Controller or as a Load Agent.
1.9 "Controller" means the Software or its component, operating on a single Software-Operated Computer initiating a test.
1.10 "Load Agent" means the Software or its component operating on a Software-Operated Computer for load simulation and receiving instructions from a Controller, which is operated on a different Software-Operated Computer.
1.11 "Unattended Computer Device" is a virtual machine (VM), cloud-based server or service, unattended, remotely-controlled, or other computer-based device that can utilize the Software without immediate human presents and interaction.
1.12 "Cloud Computer Device" is a virtual machine or a service, such as Amazon Web Services or Microsoft Azure, provided by a cloud service provider, which is capable of operating the Software.
1.13 "Single-Machine Use" is a method of using the Software by emulating all VUs on a Controller without using Load Agent(s).
1.14 "Distributed Testing Use" is a method of using the Software on a Controller, allocating VUs to one or several Load Agents.
1.15 "Computer under CUSTOMER'S Control" is a physical computer or computer device, Unattended Computer Device or Cloud Computer Device that CUSTOMER owns, rents or leases and to which CUSTOMER is the primary user.
1.16 "Internal Use" is the use of the Software solely in CUSTOMER'S own business operations for performance testing applications, which are directly owned or licensed by CUSTOMER, when the Software is installed on the Computer under CUSTOMER'S Control operated from a location other than CUSTOMER'S client or other third-party office.
1.17 "External Use" is the use of the Software by CUSTOMER to provide services to CUSTOMER'S clients or any other third party on either a fee or gratis basis.
1.18 External Applications are approved versions of 3-rd party applications that can work in conjunction with Software and provide additional functionality.
1.19 "Machine Code" is an identifier of a Software-Operated Computer determined by the Software. Machine code is displayed in the "License" window, embedded into the Software.
2. LICENSE GRANTS
2.1 Upon CUSTOMER'S acceptance of this Agreement, Stimulus Technology grants CUSTOMER a non-exclusive, non-transferable (except as provided in Section 8), limited license to install and use the Software on Software-Operated Computers. CUSTOMER may install and use the Software as permitted by the granted License Type described in this Agreement. The granted License Type is specified in the Product Receipt, Trial Notification or in the "License" window embedded into the Software.
2.2 License Types
By the Scope:
2.2.1 Per-machine License: Under the terms of a Per-machine License, the Software is licensed for use on one Software-Operated Computer at a time to which the Per-machine License is "bound". Unless the Product Receipt specifies "Site" in the purchased item, the License Type is a Per-machine License.
2.2.2 Site License: Under the terms of a Site License, the Software may be used on one private network on an unlimited number of Software-Operated Computer at the same time. All such computers must have Internet access to the Stimulus Technology licensing server.
By the Software Edition:
2.2.3 Pro Edition License: If the Product Receipt specifies "Pro" in the purchased item, the License Type is a Pro Edition License. The Pro Edition License is combined with other License Types to grant the Single-Machine Use and the Internal Use. Distributed Testing Use and External Use is not permitted under the Pro Edition License.
2.2.4 Enterprise Edition License: If the Product Receipt specifies "Enterprise" or "Ent" in the purchased item, the License Type is an Enterprise Edition License. The Enterprise Edition License is combined with other License Types to grant the Single-Machine Use, Distributed Testing Use and Internal Use. External Use is not permitted under the Enterprise Edition License.
2.2.5 Service Provider Edition License: If the Product Receipt specifies "Service Provider", the License Type is a Service Provider Edition License. The Service Provider Edition License is combined with other License Types to grant the Single-Machine Use, Distributed Testing Use, Internal Use and External Use.
By the load generation level:
2.2.6 Virtual User License:
(a). If combined with the Pro Edition License, the Virtual User License, allows simulating VUs on a single Controller, wherein the number of simulated VUs shall not exceed the licensed capped number of VUs that is also specified in the Product Receipt.
(b). If combined with the Enterprise Edition License or the Service Provider Edition License, the Virtual User License allows simultaneously simulating VUs by the Controller and one or several Load Agents wherein the combined number of simulated VUs, shall not exceed the licensed capped number of VUs that is also specified in the Product Receipt.
The Virtual User License is combined with other License Types to limit the term of the license grant.
By the Term:
2.2.7 Permanent License: If the Product Receipt specifies "Permanent" or "Full" in the purchased item, then the License Type is a Permanent License. The Permanent License is combined with other License Types to grant a perpetual license that begins on the date, specified in the Product Receipt.
2.2.8 Time-limited License: If the Product Receipt specifies that it is a "Pass" in the purchased item, then the License Type is a Time-limited License. The Time-limited License is combined with other License Types to limit the term of the license grant. The term of the Time-limited License begins on the date, specified in the Product Receipt and continues only for the term specified in the Product Receipt. CUSTOMER will not be entitled to a refund of amount paid for the license to use the Software, or any other amounts for any reason. Software with a Time-limited License may contain a device that limits Software usage in accordance with the license.
2.2.9 Subscription License: If the Product Receipt specifies "Subscription" in the purchased item, then the License Type is a Subscription License. The Subscription License is combined with other License Types to limit the term of the license grant. The term of the Subscription License begins on the date of the subscription, specified in the Product Receipt. The license fee will be billed at the beginning of each renewal term specified in the Product Receipt, unless and until CUSTOMER cancels subscription License or fails to pay associated fees when due. License fee specified in the product receipt is subject to change upon Stimulus Technology's 30-day prior written notice. The revised License Fee shall not take effect until the beginning of the next renewal term. If CUSTOMER disagrees with the revised License Fee, CUSTOMER shall cancel the subscription before the beginning of the next renewal term. CUSTOMER will not be entitled to a refund of amount paid for the license, or any other amounts for any reason. Software with a Subscription License may contain a device that limits Software usage in accordance with the license.
Free Licenses:
2.2.10 Initial Trial License: Initial Trial License is automatically granted for 30 days upon the first installation of the Software on a Software-Operated Computer (Initial Trial Period).
2.2.11 Extended Trial License: Extended Trial License grants an Additional Trial Periods or removes some of the Software limitations, as indicated in the corresponding Trial Notification.
2.2.12 Initial Trial License and Extended Trial License(s) (Trial Licenses) may be used only to evaluate the Software. The Software operated under the Trial Licenses may have limited features. The use of the Software operated under the Trial License in commercial environment is permitted. The Trial License will terminate after termination of the Initial Trial Period and any Additional Trial Periods. After the termination of the Trial License, the Software can be operated on the same machine under the Freeware License provided a full compliance with the license type it operates under.
2.2.13 Non-Commercial License: A Non-Commercial License may be used only for non-commercial purposes as provided in the paragraph 3.2.5. The Software operated under the Non-Commercial License may have limited features. The Non-Commercial License is perpetual, however is not eligible for the product support.
2.2.14 Freeware License: If the "License" window, embedded into the Software specifies "Freeware" in the License Type field, the License Type is Freeware License. Under the terms of a Freeware license, an individual who accepted this Agreement is licensed to use one copy of the Software with limited features on Software-Operated Computers. The Freeware user may use the Freeware License for commercial purposes, but only during the periods when neither the freeware user nor the company where the freeware user works, is licensing or subscribing to any paid license type of the Software. The Freeware license is perpetual, however is not eligible for the product support.
2.3 Additional Licensing Requirements
2.3.1 Virtualization Technology: The Software may be installed using the Software installer or otherwise by copying a disk image into a virtual or emulated hardware system, as long as the use of the Software meets the terms of the License Type, and these virtual machines are operated on hardware owned or leased by CUSTOMER. Virtualization technology may not be used to circumvent other licensing terms and restrictions.
2.3.2 Unattended Computer Devices are counted as physical computers emulating VUs. Each Unattended Computer Device that operates the Software must be properly licensed to use the Software with one of the License Types described herein.
2.3.3 AUDIT. If Stimulus Technology has any reason to believe that CUSTOMER is in violation of this Agreement, whether based on the evidence resulting from the use pursuant Section 7 of this Agreement, or not, Stimulus Technology at its own choice may (a) request the Software Use Certificate (Certificate) from the CUSTOMER in writing; and / or (b) engage an independent professional auditor that will audit CUSTOMER'S use of the Software for compliance with the terms of this Agreement by issuing CUSTOMER a written notice (Notice).
CUSTOMER agrees to provide Stimulus Technology with a written certification, within 15 days from receipt of the Request, duly executed by an authorized person (i) certifying that the Software is being utilized pursuant to the provisions of this Agreement and the relevant Product Receipt and (ii) for every Software-Operated Computer, provide its location, Activation Key if any, Machine Code, computer name and a description of whether the computer is a physical computer, virtual computer or a Cloud Computer Device . CUSTOMER also agrees upon a 15-day written Notice to grant the auditor reasonable access during normal working hours to CUSTOMER'S facility in order to audit the use of the Software and ensure compliance with this Agreement.
If the Audit or review of the certificate reveals that CUSTOMER has underpaid fees to Stimulus Technology, CUSTOMER agrees to pay such underpaid fees within 30 days of receiving the notice from Stimulus Technology about such underpayment. If the underpaid fees exceed 10% of the license fees initially paid, then CUSTOMER shall reimburse Stimulus Technology for all reasonable expenses related to such audit in addition to any other liabilities CUSTOMER may incur as a result of such non-compliance.
3. LICENSE RESTRICTIONS
Except to the extent contrary to applicable law the following license restrictions shall apply:
3.1 General Restrictions
3.1.1 CUSTOMER may not sell, rent, lease, lend or sublicense the Software. CUSTOMER may not permit a third party to use the Software for any reason. CUSTOMER may not permit the use of the Software on a "service bureau" basis.
3.1.2 CUSTOMER may not alter the contents of a hard drive or computer system to (a) enable the use of the Software for a period in excess of the period permitted by the existing time-limited license, (b) increase the capped number of granted VUs or (c) disable the device(s) limiting some of the Software functions.
3.1.3 CUSTOMER may not reverse engineer, decompile, disassemble or alter the Software or any of its part, except and only to the extent that mandatory applicable law expressly permits, despite this limitation. CUSTOMER may not create derivative works based upon the Software.
3.1.4 CUSTOMER may not use the Software to create any product that directly or indirectly competes with the Software.
3.1.5 Software Components can normally operate in conjunction with External Applications. This Agreement does not grant CUSTOMER any rights to use External Applications. CUSTOMER should obtain the license to use External Applications prior to using the Software.
3.1.6 CUSTOMER may make one copy of the Software, provided such copy is not installed or used other than for backup archival purposes.
3.1.7 THE SOFTWARE IS NOT DESIGNED OR INTENDED FOR USE IN ONLINE CONTROL OF AIRCRAFT, AIR TRAFFIC, AIRCRAFT NAVIGATION OR AIRCRAFT COMMUNICATIONS, OR IN THE DESIGN, CONSTRUCTION, OPERATION OR MAINTENANCE OF ANY NUCLEAR FACILITY. CUSTOMER SHALL NOT USE THE SOFTWARE FOR SUCH PURPOSES.
3.1.8. Stimulus Technology is not responsible for typographic errors in the Software or Product Receipt.
3.2 Restrictions for License Types
3.2.1 Per-machine License restrictions: CUSTOMER shall not use or activate the Software operated under the Per-machine License on more than one Software-Operated Computer at a time. Use of the Software on a different Software-Operated Computer is permitted only after proper license deactivation, approved by Stimulus Technology. CUSTOMER shall not use the Software on the computer where the license was deactivated. Notwithstanding the foregoing, CUSTOMER may use an unlimited number of Load Agents receiving instructions from a single controller executing Software operated under the Enterprise Edition License or Service Provider License.
3.2.2 Pro Edition License restrictions. Under the Pro Edition License CUSTOMER shall (a) not install or use the Software on any computer except a Computer under CUSTOMER'S Control; and (b) not use the Software in a manner that constitutes "External Use" or "Distributed Testing Use".
3.2.3 Enterprise Edition License restrictions. Under the Enterprise Edition License, CUSTOMER shall (a) not install or use the Software on any computing device except a Computer under CUSTOMER'S Control; and (b) not use the Software in a manner that constitutes "External Use".
3.2.4 Trial Licenses restrictions. CUSTOMER shall not: (a) use the Software for any other purpose other than the sole purpose of determining whether to purchase a license to the Software; (b) request and use the Trial License of the Software after CUSTOMER has licensed or subscribed to any paid license type of the Software; (c) request a trial from a "Cloud Computer Device". If CUSTOMER is an individual working for a Company, CUSTOMER shall not (a) request the Trial License of the Software under more than one username or email address; (b) use the Trial License of the Software at CUSTOMER'S work at the Company after the Company licensed or subscribed to any paid license type of the Software.
3.2.5 Non-Commercial License restrictions. Non-Commercial License is allowed only in the Software versions 2.5 and earlier. CUSTOMER shall not use the Software operated under the Non-Commercial License for any other purpose other than, personal or nonprofit use.
3.2.6 Freeware License restrictions. Stimulus Technology grants the Freeware Licenses pursuant to paragraph 2.2.14 only to those individuals and small organizations which are not budgeted for purchasing license(s) of commercial performance testing tools. If CUSTOMER uses the Freeware License for commercial purposes, CUSTOMER may do so only during the periods when neither CUSTOMER nor the company where CUSTOMER works, if CUSTOMER is an individual, is licensing or subscribing to any paid version of the Software.
3.2.7 Restrictions to use Software on Cloud Computer Device: CUSTOMER shall not use the Software on a Cloud Computer Device except Software licensed under the Enterprise Edition License and Service Provider Edition License.
4. CUSTOMER'S RESPONSIBILITIES
4.1 CUSTOMER is responsible for (a) installing, managing, and operating the Software and (b) any interfacing between the Software and all other software and database(s) used by CUSTOMER.
4.2 The Software is distributed only electronically without providing Software on CD or DVD or other non-transitory computer-readable media. Stimulus Technology makes available for download from its website only the latest version of the Software and is not obligated to provide previous versions of the Software. CUSTOMER is responsible for downloading the Software before or at the time of initiating licensing the Software and retaining its backup copy.
4.3 Under the Permanent License, Time-limited License, Subscription License and Extended Trial License CUSTOMER is responsible for (a) activating the Software installed on a Software-operated Computer prior its use with an Activation Key issued to CUSTOMER by Stimulus Technology; (b) deactivating a copy of the Software prior to moving license to a different Software-operated Computer. The activation and deactivation process requires Internet connectivity between the Software-operated Computer and the Stimulus Technology-operated licensing server.
4.4 The Software is intended to be used only in a testing environment, and not in production. Data used directly or indirectly by the Software and the entire tested environment (including but not limited to web servers and database) must have been saved in a backup. Any use in any other environment is at CUSTOMER'S own risks, and Stimulus Technology disclaims any obligation, liability or warranty arising out of such unauthorized use.
4.5 CUSTOMER shall comply with all export and import laws, rules, and regulations related to CUSTOMER'S implementation, license, and/or use of Software.
4.6 Any taxes imposed by a government with jurisdiction over CUSTOMER, including sales, use, or other taxes or charges arising from any payments made or to be made by CUSTOMER to Stimulus Technology under this Agreement, are the responsibility of and shall be paid by CUSTOMER or, if Stimulus Technology is required to pay the same, shall be reimbursed by CUSTOMER to Stimulus Technology.
5. UPGRADES
If this copy of the Software is an upgrade from an earlier version of the Software, it is provided to CUSTOMER on a license exchange basis. CUSTOMER agrees by CUSTOMER'S installation and use of such copy of the Software to voluntarily terminate the earlier Agreement and that CUSTOMER will not transfer the earlier version of the Software to another person or entity. Stimulus Technology reserves the right to require CUSTOMER to agree to revised terms of the Agreement in any future Software upgrades as a condition a CUSTOMER receiving such upgrades.
6. SUPPORT SERVICES
6.1 Stimulus Technology may provide CUSTOMER with support services related to the Software as described in the Documentation. As a part of these support services, Stimulus Technology may make available bug lists, planned feature lists, and other supplemental informational materials. Stimulus Technology MAKES NO WARRANTY OF ANY KIND FOR THESE MATERIALS AND ASSUMES NO LIABILITY WHATSOEVER FOR DAMAGES RESULTING FROM ANY USE OF THESE MATERIALS. FURTHERMORE, CUSTOMER MAY NOT USE ANY MATERIALS PROVIDED IN THIS WAY TO SUPPORT ANY CLAIM MADE AGAINST Stimulus Technology.
6.2 With respect to any technical information CUSTOMER provides to Stimulus Technology as part of the support services, Stimulus Technology may use such information for its business purposes without restriction, including for product support and development.
6.3 Freeware licenses are not eligible for product support services. Freeware users may access support materials and discussion groups via the Stimulus Technology's website at www.stresstimulus.com.
7. SOFTWARE ACTIVATION, UPDATES AND LICENSE METERING
7.1 Software Activation: Software may use CUSTOMER'S internal network and Internet connection for the purpose of transmitting and receiving license-related data at the time of installation, activation or update to the Stimulus Technology-operated licensing server and validating the authenticity of the license-related data in order to protect Stimulus Technology against unlicensed or illegal use of the Software and to improve customer service. Activation is based on the exchange of license related data between the CUSTOMER'S Software-Operated Computer and the Stimulus Technology-operated licensing server. CUSTOMER agrees that Stimulus Technology may use these measures and CUSTOMER agrees to follow any applicable requirements.
7.2 Update Notification Service: Stimulus Technology may provide a free update notification service with the Software. An update notification service may use CUSTOMER'S internal network and Internet connection for the purpose of transmitting license-related data to a Stimulus Technology-operated update notification server at appropriate intervals and determine if there is any update available for the Software and notify CUSTOMER of its availability.
7.3 License Metering: Stimulus Technology may use license metering software to help CUSTOMER avoid any unintentional violation of this Agreement. The license metering software may use CUSTOMER'S internal network and Internet connection for license metering between installed versions of the Software. All license metering information transferred to the Stimulus Technology-operated licensing server during the use of the Software will be secured and kept by Stimulus Technology confidential to any third party. STIMULUS TECHNOLOGY DOES NOT RECEIVE ANY INFORMATION ABOUT THE SUBSTANCE OF THE CUSTOMER USE OF THE SOFTWARE OR SYSTEMS THAT ARE BEING TESTED.
8. ASSIGNMENT
Notwithstanding the foregoing, either party may assign this Agreement together with the Software license to a Subsidiary or in connection with a sale of all or substantially all of its assets or stock, provided that (a) each assignee or successor party agrees in writing delivered to the non-assigning party to be bound by all terms and conditions of this Agreement, except that CUSTOMER may not assign this Agreement or the license to a competitor of Stimulus Technology; (b) CUSTOMER retains no copies, including backups and copies stored on a computer; (c) the receiving party secures a personalized license from Stimulus Technology.
9. OWNERSHIP
The SOFTWARE is licensed, not sold. This agreement gives CUSTOMER limited license to use the Software. Except as expressly provided in this Agreement, Stimulus Technology retains all right, title and interest, including all copyright and intellectual property rights, in and to, the Software and all copies thereof. All rights not specifically granted in this Agreement, are reserved by Stimulus Technology.
10. LIMITED WARRANTY AND DISCLAIMER
10.1 Except as provided in paragraph 10.2 and 10.3, Stimulus Technology warrants that, for a period of thirty (30) days following CUSTOMER's acquiring its license, as evidenced by a copy of the Product Receipt ("Warranty Period"), the Software will perform in substantial conformance with the Documentation, when operated with a certified operating system with a recommended hardware configuration. Notwithstanding the foregoing, the Limited Warranty does not apply to any use problem caused by (i) a third party system(s) or component(s) that is not compatible with the Software or not certified by Stimulus Technology; (ii) unauthorized by Stimulus Technology modification(s) of the Software; (iii) hardware; (iv) misuse of the Software.
10.2 EXCEPT AS SET FORTH IN THE FOREGOING LIMITED WARRANTY WITH RESPECT TO SOFTWARE, STIMULUS TECHNOLOGY DISCLAIM ALL OTHER WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALSO, THERE IS NO WARRANTY OF NON-INFRINGEMENT AND TITLE. STIMULUS TECHNOLOGY DOES NOT WARRANT THAT THE SOFTWARE IS ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION OR WILL MEET ALL THE NEEDS AND REQUIREMENTS THAT CUSTOMER HAS ANTICIPATED OR WHICH HAVE MOTIVATED CUSTOMER TO LICENSE THE SOFTWARE. FURTHERMORE, CUSTOMER ACKNOWLEDGES THAT CUSTOMER EVALUATED THE SOFTWARE BY USING THE SOFTWARE DURING THE TRIAL PERIOD AND /OR RECEIVED ANY AND ALL INFORMATION ABOUT THE SOFTWARE AND IS WELL INFORMED ABOUT AND ACCEPTS THE SOFTWARE LIMITATIONS, EXCEPT THE POSSIBLE DEFECTS.
10.3 STIMULUS TECHNOLOGY PROVIDES NO REMEDIES OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, FOR THE SOFTWARE OPERATED UNDER THE TRIAL LICENSE, NON-COMMERCIAL LICENSE, FREEWARE LICENSE OR ANY PRE-RELEASE VERSIONS OF THE SOFTWARE (FREE SOFTWARE). THE FREE SOFTWARE IS PROVIDED "AS IS".
10.4 NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY STIMULUS TECHNOLOGY, ITS DEALERS, DISTRIBUTORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN.
10.5 THIS WARRANTY GIVES CUSTOMER SPECIFIC LEGAL RIGHTS. CUSTOMER MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
11. EXCLUSIVE REMEDY
CUSTOMER'S sole and exclusive remedy under the preceding is to return the Software to the place CUSTOMER acquired it, with a copy of Product Receipt and a written description of the Software non-compliance with the Limited Warranty (" Noncompliance Report "). Provided that the Noncompliance Report is received by Stimulus Technology within the Warranty Period, Stimulus Technology will use reasonable commercial efforts to supply CUSTOMER with a replacement copy of the Software that substantially conforms to the Documentation, provide a replacement for defective media, or refund the purchase price of the Software to CUSTOMER, at its option. THIS REMEDY IS THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO CUSTOMER FOR ANY REASON AND FOR ANY CAUSE OF ACTION WHATSOEVER IN CONNECTION WITH OR RELATING TO THIS AGREEMENT, SOFTWARE OR ANY TRANSACTION INVOLVING SOFTWARE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE AND BREACH OF WARRANTY.
12. TERMINATION
12.1. Upon the occurrence of any material breach of this Agreement or if CUSTOMER fails to pay any applicable fees due within fifteen (15) days after receipt of written notice of non-payment, Stimulus Technology, at its option, shall be entitled to suspend or terminate this Agreement without refund.
12.2. CUSTOMER agrees that, in the event of any termination of the Agreement CUSTOMER shall, within fifteen (15) days from the date CUSTOMER receives written notification of such termination, purge all copies of the Software and Documentation from all computers and storage media on which CUSTOMER has maintained them, destroy all copies of the Software and Documentation provided to or made by CUSTOMER under this Agreement, and promptly certify in writing to Stimulus Technology that the same have been purged and destroyed.
12.3. Survival. Termination of this Agreement shall not relieve either party of any payment or other obligation under this Agreement. All provisions of this Agreement which by their nature are intended to survive the termination of this Agreement (including the provisions of Article 1 and all Articles in sections 4 through 15) shall survive such termination.
13. LIMITATION OF LIABILITY
13.1 IN NO EVENT WILL Stimulus Technology OR ITS SUPPLIERS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION OR THE LIKE), ARISING OUT OF THE USE OF, OR INABILITY TO USE OF THE SOFTWARE, EVEN IF ALLEGED DAMAGES WERE CAUSED BY BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, OR EVEN IF Stimulus Technology HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13.2 Stimulus Technology's LIABILITY UNDER THIS AGREEMENT FOR DAMAGES OF ANY KIND WILL NOT, IN ANY EVENT, EXCEED THE LICENSE FEES PAID BY CUSTOMER TO Stimulus Technology UNDER THIS AGREEMENT FOR THE SOFTWARE THAT CAUSED SUCH DAMAGE.
14. MARKETING
CUSTOMER agrees to be identified as a customer of Stimulus Technology and agree that Stimulus Technology may refer to CUSTOMER by name, trade name and trademark, if applicable, and may briefly describe CUSTOMER'S business in Stimulus Technology's marketing materials and web sites. CUSTOMER hereby grants Stimulus Technology a license to use CUSTOMER'S name and any of CUSTOMER'S trade names and trademarks solely in connection with the rights granted to Stimulus Technology pursuant to this marketing Section. However, if CUSTOMER has an objection to Stimulus Technology referring to it as a customer, please notify us and we will cease such references.
15. MISCELLANEOUS
15.1 Governing Law and Jurisdiction: This Agreement shall be governed by, construed, interpreted and enforced in accordance with the laws of the State of New York (the "State"), without giving effect to the principles of conflict of laws thereof. If any action is brought to enforce this Agreement, venue for such action shall be in the courts of the State or the courts of the United States District Court serving the City of New York. If Stimulus Technology is the prevailing party in any action brought in connection with this Agreement, Stimulus Technology shall be entitled to recover its reasonable costs and legal expenses for such action. The Parties hereby irrevocably waive any objection which either may now or hereafter have to the laying of venue of any actions or proceedings arising out of or in connection with this Agreement brought in the courts referred to in the preceding sentence and hereby further irrevocably waive and agree not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum. In each case this Agreement shall be construed and enforced without regard to the United Nations Convention on the International Sale of Goods. If this Software was acquired outside the United States, then CUSTOMER agrees and ascend to the adherence to all applicable international treaties regarding copyright and intellectual property rights which shall also apply. In addition, CUSTOMER agrees that any local laws to the benefit and protection of Stimulus Technology's ownership of, and interest in, its intellectual property and rights of recovery for damages thereto will also apply.
15.2 Force Majeure and outages: Neither party will incur any liability to¬ the other party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of the parties. Such events, occurrences, or causes will include, without limitation, acts of God, strikes, lockouts, riots, acts of war, earthquakes, fire, explosions and power or Internet outages.
15.3 Entire Agreement: This Agreement constitutes the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written, including all previous agreements, related to the prior versions of the Software, between the parties with respect to said subject matter.
15.4 Modifications. The terms and conditions of the Agreement are subject to change by Stimulus Technology in the subsequent Software versions without notice. CUSTOMER acknowledges that CUSTOMER'S installation of the subsequent Software versions and acceptance of the corresponding versions of the agreement constitutes acceptance of any and all of the modified terms and conditions. If CUSTOMER does not accept any of the modified terms and conditions, CUSTOMER shall not install or use the subsequent Software versions.
15.5 Waiver: Any waiver of the provisions of this Agreement or of a party's rights or remedies under this Agreement must be in writing to be effective. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time will not be construed and will not be deemed to be a waiver of such party's rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such party's right to take subsequent action. Except as expressly stated in this Agreement, no exercise or enforcement by either party of any right or remedy under this Agreement will preclude the enforcement by such party of any other right or remedy under this Agreement or that such party is entitled by law to enforce.
15.6 Severability: If any term, condition, or provision in this Agreement is found to be invalid, unlawful or unenforceable to any extent, the parties shall endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in this Agreement. If the parties fail to agree on such an amendment, such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.
15.7 Trademarks: Stimulus Technology and other trademarks contained in the Software are trademarks or registered trademarks of Stimulus Technology in the United States and/or other countries. Third party trademarks, trade names, product names and logos may be the trademarks or registered trademarks of their respective owners. CUSTOMER may not remove or alter any trademark, trade names, product names, logo, copyright or other proprietary notices, legends, symbols or labels in the Software. This Agreement does not authorize CUSTOMER to use Stimulus Technology's or its licensors' names or any of their respective trademarks.
Should CUSTOMER have any questions concerning this Agreement, please contact us by telephone: +1 (732) 637-8100, email: sales@stresstimulus.com or mail: Stimulus Technology, PO BOX 360, MARLBORO, NJ 07746, USA
License Agreement for StresStimulus, Stimulus Technology's Software; Last updated: October 10, 2013