End User License Agreement and Warranty (EULA) | NETSCOUT

NETSCOUT End User License Agreement (EULA) and Warranty

BY USING THIS PRODUCT IN ANY MANNER, YOU ARE AGREEING TO ACCEPT THE FOLLOWING TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THESE CONDITIONS, DO NOT DOWNLOAD OR USE THE SOFTWARE OR PRODUCT. THE TERMS OF AN END USER LICENSE AGREEMENT ACCOMPANYING PARTICULAR SOFTWARE FILE UPON INSTALLATION OR DOWNLOAD OF THE SOFTWARE, IF ANY, SHALL SUPERSEDE THE TERMS PRESENTED HERE.

For purposes of this EULA, the following definitions will apply:

“Agreement” means this EULA or the terms of an End User License Agreement accompanying a particular Software file.

NETSCOUT means NETSCOUT SYSTEMS, INC.

“Documentation” means any installation guides, reference guides, operation manuals and release notes provided with the Product in printed, electronic, or online form.

“Software” means any software on NETSCOUT then-current price list or otherwise made available including (i) software provided on a stand-alone basis, (ii) software provided on or with any Hardware, (iii) any upgrades, updates, patches, enhancements, or fixes to any of the foregoing made available by NETSCOUT and provided to customers having purchased support and maintenance services on the Software (“Updates”).

“Hardware” means hardware products generally available on NETSCOUT then-current price list.

“Product” means, collectively, the Hardware and/or Software and all Documentation associated therewith.

“You” and “Your” means the commercial entity authorized by NETSCOUT to utilize the Product.

1. GRANT OF LICENSE

NETSCOUT grants You a non-exclusive right to use the Product subject to the terms and conditions set forth in this End User License Agreement. You acknowledge and agree that the Product may use a network to send and receive data, and that Your service providers may bill You airtime, data or usage fees and that You are solely responsible for such charges.

2. TITLE, COPYRIGHT AND TRADEMARK

NETSCOUT retains all right, title, and interest in and to the Software, including without limitation the all Updates, Documentation, and permitted copies, and all patents, copyrights, trade secrets, trademarks, and other intellectual property rights therein. NETSCOUT retains all rights to the intellectual property associated with the Hardware except as expressly granted in this Agreement. The Software and Documentation are protected under copyright laws; any permitted copies must include all copyright, government-restricted rights, and other proprietary notices or legends included on the Software when it was shipped or first provided to You.

3. RESTRICTIONS

This grant of license does not include the right to copy other than for archival purposes, modify, rent, lease, sell, transfer or distribute the Product or any portion thereof. You may not reverse engineer, decompile, or disassemble the Product.

This grant of license allows use of Product on a single computer or smart device at a time for use with only the MAC address/Unique identifier for Wi-Fi/Ethernet/specialized adapter for which it was uniquely licensed, if a license key binding to the MAC address/ Unique identifier for Wi-Fi/Ethernet/specialized adapter was required during installation.

This Product is controlled by the U.S. Department of Commerce Bureau of Industry and Security. You may not sell, transfer, export, or re-export the Product, directly or indirectly, to anyone in any country in which such sale, transfer, export, or re-export is restricted by U.S. law or regulation, or any other government having jurisdiction. You specifically certify that You are not a national of a country under U.S. Government sanctions, or a person who is included on any U.S. Government restricted parties lists.

4. TERM

This license is effective upon Your acceptance of the Agreement or first use of the Product and shall remain in effect until terminated by (a) written notification to NETSCOUT or (b) a failure on Your part to comply with the Agreement. Upon termination of the Agreement, You shall return to NETSCOUT or destroy all copies of the Product and associated written materials.

5. OTHER AGREEMENTS

The Software may contain third party technology.  NETSCOUT licenses such third party technology and documentation (“Third Party Materials”) for use with the Software only.  In the event the Software contains Third Party Materials, or in the event You have the option to use the Software in conjunction with Third Party Materials (as identified by NETSCOUT in the applicable Documentation), then such Third Party Materials are provided or accessible subject to a third-party license.  You agree to abide by the terms of said licenses and to obtain any additional licenses that may be required to use the Third Party Materials, including but not limited to patent licenses. Your use of the Third Party Materials in conjunction with the Software in a manner consistent with the terms of the Agreement is permitted, however, You may have broader rights under the applicable Third Party Materials license and nothing in the Agreement is intended to impose further restrictions on Your use of such Third Party Materials. You agree to indemnify, defend and hold NETSCOUT harmless against any action arising from failure to obtain, or breach of, such Third Party Material licenses. To the extent the Software includes Third Party Materials licensed to NETSCOUT by third parties, those third parties are third party beneficiaries of, and may enforce, the applicable provisions of this Agreement.

Where terms or conditions of the Agreement conflict with terms or conditions of other agreements, unless otherwise specifically stated, the Agreement supersedes other agreements.

6. LIMITED WARRANTY AND LIMITATION OF LIABILITY

Each NETSCOUT Hardware product is warranted to be free from defects in material and workmanship under normal use during the applicable warranty period. The warranty period for Hardware is one year and begins on the date of purchase. The warranty period for parts and accessories is 90 days from date of purchase. Ni-Cad, Ni-MH and Li-Ion batteries, cables or other peripherals are all considered parts or accessories. The warranty extends only to the original buyer or end user customer of a NETSCOUT authorized reseller, and does not apply to any Product which, in NETSCOUT’ opinion, has been misused, abused, altered, neglected, contaminated, or damaged by accident or abnormal conditions of operation or handling. NETSCOUT warrants that Software will operate substantially in accordance with its functional specifications as set forth in the Documentation and that it has been properly recorded on non-defective media.  The warranty period for Software is 90 days from the date of purchase. NETSCOUT does not warrant that Software will be error free or operate without interruption.

NETSCOUT authorized resellers shall extend this warranty on new and unused Products to end-user customers only but have no authority to extend a greater or different warranty or warranty period on behalf of NETSCOUT.  Warranty support is available only if Product is purchased through a NETSCOUT authorized sales outlet or if You have paid the applicable international price.  To the extent permitted by law, NETSCOUT reserves the right to invoice You for repair/replacement when a Product purchased in one country is submitted for repair in another country.

NETSCOUT warranty obligation is limited, at NETSCOUT option, to repair, or replacement of a defective Product which is returned to a NETSCOUT authorized service center within the warranty period.

To obtain warranty service, contact Your nearest NETSCOUT authorized service center to obtain return authorization information, then send the Product to that service center, with a description of the difficulty, postage and insurance prepaid (FOB destination).  NETSCOUT assumes no risk for damage in transit.  Following warranty repair, the Product will be returned to You, transportation prepaid (FOB destination).  If NETSCOUT determines that failure was caused by neglect, misuse, contamination, alteration, accident or abnormal condition of operation or handling, or normal wear and tear of mechanical components, NETSCOUT will provide an estimate of repair costs and obtain authorization before commencing the work.  Following repair, the Product will be returned transportation prepaid and You will be billed for the repair and return transportation charges (FOB Shipping point).

THIS WARRANTY IS YOUR SOLE AND EXCLUSIVE REMEDY AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  NETSCOUT SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOSSES, INCLUDING LOSS OF DATA, ARISING FROM ANY CAUSE OR THEORY.

Since some countries or states do not allow limitation of the term of an implied warranty, or exclusion or limitation of incidental or consequential damages, the limitations and exclusions of this warranty may not apply in those countries or states.  If any provision of this Warranty is held invalid or unenforceable by a court or other decision-maker of competent jurisdiction, such holding will not affect the validity or enforceability of any other provision.

7. NO OTHER WARRANTIES

NETSCOUT DISCLAIMS THE WARRANTY OF NON-FRINGEMENT AND ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SOFTWARE AND THE ACCOMPANYING WRITTEN MATERIALS. In no event shall NETSCOUT be liable for any damages whatsoever (including, without limitation, indirect, consequential, or incidental damages, damages for loss of business profits, business interruption, loss of business information, or other pecuniary loss) arising out of the use of or inability to use this Product, even if NETSCOUT has been advised of the possibility of such damages.

8. APPLICABLE LAW

This Agreement will be governed by the laws of the Commonwealth of Massachusetts without regard to choice of law rules, and you hereby submit to the jurisdiction of the federal and state courts located in said Commonwealth and the applicable service of process. The parties agree that the United Nations Convention on International Sale of Goods Acts will not apply to this Agreement.

9. U.S. GOVERNMENT RESTRICTED RIGHTS.

The Software and documentation are provided with restricted rights. Use, duplication, or disclosure by the United States Government is subject to restrictions as set forth in subparagraphs (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights at 48 CFR 52.227-19, as applicable.

Manufacturer is Netscout Systems, Inc. 310 Littleton Road, Westford, Massachusetts 01886

Main Phone:  978-614-4000 / Main Fax: 978-614-4004