Terms of Subscription Service | NETSCOUT

Terms of Subscription Service

Last Updated: March 16, 2016

Welcome to the network test, analysis and performance monitoring services of NetScout Systems, Inc. (“NETSCOUT”, “we”, or “us”). These terms govern your use of NETSCOUT’ proprietary software and any related service, website, application, plug-in, component, functionality, or programs (collectively the “Service”). Please read these Terms of Subscription Service (“Agreement”) carefully, as they contain the legal terms and conditions that govern your use of and access to the Service.

THIS AGREEMENT IS MADE BY AND BETWEEN NETSCOUT AND YOU. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH COMPANY OR ENTITY TO THE TERMS OF THIS AGREEMENT, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO THE COMPANY OR ENTITY WHICH YOU REPRESENT, ITS AFFILIATES, AND EACH OF THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND REPRESENTATIVES.

NETSCOUT reserves the right to update and change this Agreement from time to time by posting an updated version of such terms at http://enterprise.netscout.com/TermsOfSubscriptionService. If you continue to use or access the Service after the posted effective date, you hereby agree to the updated Terms of Subscription Service. Unless NETSCOUT otherwise indicates, your use of any new features, changes, and enhancements to the current Service, including the release of new features and resources, shall be subject to the then-current Terms of Subscription Service.

Account Terms

  • You must provide your legal full name, a valid email address, and any other information requested during the account signup process in order to obtain an account. You must ensure that all account information remains complete and accurate.
  • You must be a human. Accounts registered by “bots” or other automated methods are not permitted.
  • You may not be a direct or indirect competitor to NETSCOUT.
  • You are responsible for maintaining the security of your account and password, and are responsible for all activities conducted using your account and password. NETSCOUT cannot and will not be liable for any loss or damage from your failure to comply with this security obligation.
  • You may use the Service only in accordance with the use parameters of your account’s plan (“Plan Level”), including any user, test, or device limitations, and you agree not to attempt to circumvent such limitations.
  • You shall not use the Service or any associated documentation for any purpose at any location or in any manner not specifically authorized by this Agreement.
  • You shall not create or recreate the source code for software incorporated into the Service, or re-engineer, reverse engineer, decompile or disassemble any part of the Service.
  • You shall not modify, adapt, translate or create derivative works based upon the Service or any associated documentation, or combine or merge any part of the Service or any associated documentation with or into any other software or documentation.
  • You shall not sell, market, license, sublicense, distribute or otherwise grant to any third party the right to use the Service or any associated documentation, whether on your behalf or otherwise, except as expressly permitted under this Agreement.
  • You shall not use the Service to conduct any type of service bureau or time-sharing operation or to provide remote processing or similar services to any third party.

Payment and Pricing Terms

Payment & pricing terms and Plan Level for the Service are set forth on NETSCOUT’ Subscription Service Plan & Pricing information page available at http:/enterprise.netscout.com/SubscriptionServicePlanPricing, which are incorporated by reference into these Terms of Subscription Service.

NETSCOUT Sales and Use Tax Policy Statement

We have prepared this sales tax policy statement to explain to you when and why we collect sales tax on your purchases.

Important Notice: Even if we do not collect sales tax from you, you may owe sales tax on your purchase. Unless you live in Alaska, Delaware, Montana, New Hampshire, or Oregon, your state most likely requires purchasers to report and pay tax on all purchases that are not taxed at the time of sale. The tax may be reported and paid on your individual income tax return or by filing a consumer use tax return. For more information, please visit your state's department of revenue website.

NETSCOUT Collects Sales Tax in states where we have physical presence (or nexus), including Colorado. NETSCOUT also collects sales tax in Alabama, Arizona, California, Connecticut, Florida, Georgia, Illinois, Indiana, Kansas, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nevada, New Jersey, New York, North Carolina, Ohio, Pennsylvania, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, West Virginia, and Wisconsin.

NETSCOUT Does Not Collect Sales Tax in any state NOT listed above because NETSCOUT is not required to collect sales or use tax in these states.

For Our Tax-Exempt Customers: NETSCOUT DOES NOT COLLECT SALES TAX if we have your exemption certificate on file.

Cancellation and Termination

  • You will continue to be billed for the Service until NETSCOUT terminates your account in accordance with this Agreement or you properly cancel your account. You are solely responsible for properly canceling your account. You can cancel your account by browsing to your account settings, selecting the subscription tab, and clicking "Cancel My Account."
  • You may cancel the Service at any time. If you cancel the Service before the end of your current paid up unit of purchase as defined in the applicable payment & pricing term referenced above, your cancellation will take effect upon completion of the billing cycle or exhaustion of the unit of purchase for which you have already paid.
  • NETSCOUT, in its sole discretion, has the right to suspend or terminate your account and refuse any and all current or future use of the Service, or any other NETSCOUT service, for any reason at any time. Such termination of the Service will result in the suspension or deletion of your Account or your access to your Account. NETSCOUT reserves the right to refuse service to anyone for any reason at any time. NETSCOUT will return any unused pre-payments in cases where paid account termination was not caused by violation of this Agreement.

Modifications to the Service and Prices

  • NETSCOUT reserves the right to modify or discontinue the Service (or any part thereof) at any time, and from time to time, temporarily or permanently, and without notice.
  • Prices of all Services Plan Levels, including but not limited to monthly subscription plan fees to the Service, are subject to change upon 30 days’ notice from NETSCOUT. Such notice may be provided at any time by posting the changes to the NETSCOUT site (enterprise.netscout.com) or the Service itself. If you do not agree to such pricing change, you may cancel your account during such 30-day period. By continuing to use the Service after the effective date of such pricing change, you hereby agree to such pricing change.
  • NETSCOUT shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Service.

Software Licenses, Copyrights and Content Ownership

You have a non-exclusive right to use software, including NETSCOUT’ agents, pulse and tool firmware, and downloaded software in whatever form, that is furnished to you in connection with the Service. You agree to abide by the terms of this agreement in your use of such Software. This grant of license does not include the right to copy, modify, rent, lease, sell, transfer or distribute the software or any portion thereof. You may not reverse engineer, decompile, or disassemble the software.

You acknowledge that such software may use a network to send and receive data, and that your service providers may bill you airtime, data or usage fees for which you are solely responsible.

NETSCOUT hereby grants You a limited, non-exclusive, non-transferable right to access and use the Service as set forth herein. NETSCOUT grants no other rights or licenses to You with respect to the Service.

The Service (including all of its software and technology components and any enhancements and improvements thereto), together with all intellectual property rights therein, are the exclusive property of NETSCOUT and its suppliers. All data and information derived from your use of the Service, excluding Client-Provided Data and Derived Data (as such terms are defined below), are the sole property of NETSCOUT. The look and feel of the Service is copyright ©2013 NETSCOUT. All rights reserved. You may not duplicate, copy, or reuse any portion of the HTML/CSS or visual design elements of the Service without express written permission from NETSCOUT. Other trademarks, service marks, and trade names that may appear on the Site are the property of their respective owners.

As between NETSCOUT and You, You own and retain all right, title, and interest in and to: (i) all graphics, images, files, data and other information transmitted by you to the Service or NETSCOUT in connection with your use of the Service (“Client-Provided Data”); and (ii) any information or data derived from such Client-Provided Data, including but not limited to data about the performance of your network, network applications, system data about the environment in which your network applications are operating, data about transactions in your network, and other similar data related to your network’s performance (“Derived Data”). You hereby grant to NETSCOUT a worldwide, royalty-free, non-exclusive license to use Derived Data and Client-Provided Data for purposes of operating, maintaining, improving and extending the Service, offering you other products and services of NETSCOUT or informing you of special offers which may be of interest to you. You further grant NETSCOUT a worldwide, royalty-free, perpetual, irrevocable, non-exclusive license to use and share such data with third parties in an aggregated and non-identifiable form for any purpose that NETSCOUT deems reasonable. For more information about the data we collect, use and disclose, please see our Privacy Policy at http://enterprise.netscout.com/Privacy.

Service Level Commitment

NETSCOUT is committed to providing our customers with a great experience with our products and services. NETSCOUT subscription services are provided using the software-as-a-service (SaaS) model. In this model, the software you use to measure performance or extend tool capabilities is often comprised of two components: The NETSCOUT Probe, which is a small software module or hardware probe that is deployed on your sites or the NETSCOUT Tool that you use to perform network analyses; and the Service which is a set of software programs that collect, store, correlate and present the metric data sent from the Probe or Tool in your application to the Service. We endeavor to make the Service available at all times with the exception of maintenance windows that occur periodically throughout the month.

NETSCOUT may suspend Your access to and use of the System (or any portion thereof) in connection with (i) any unanticipated or unscheduled outages, system failures or other interruption, (ii) scheduled maintenance of or modifications to the System, (iii) a denial of service attack or other attack on the System, or other event which NETSCOUT determines, in its sole discretion, may create a risk to the System, to You or any other NETSCOUT customer if access to the System was not suspended, and (iv) NETSCOUT’s compliance with Laws (each, an “Outage”). In no event shall NETSCOUT be liable for any damage, liability or loss of any kind incurred by You in connection with an Outage. NETSCOUT will use commercially reasonable efforts to update You with respect to the resumption of Your access to the System in the event of an Outage by posting updates on its website.

Confidentiality

From time to time NETSCOUT may share Confidential Information (as defined below) with you. You agree that you will not use or disclose to any third party any Confidential Information of NETSCOUT except as expressly permitted by this Agreement or as authorized by written consent. You will use the same level of care to safeguard such Confidential Information that you use to protect your own information of a similar nature, but in no event will you use less than a reasonable degree of care to protect NETSCOUT’ Confidential Information. Nothing herein shall prevent you from disclosing Confidential Information to your parent and/or subsidiary companies. Upon termination or expiration of this Agreement, you shall, as directed by NETSCOUT, return or destroy all Confidential Information on all media and retain no copies.

“Confidential Information” means non-public information of NETSCOUT and includes (but is not limited to) business methods, business plans, concepts, test results (including the results of any evaluation of the Service), technical, financial, commercial or other proprietary information, pricing, or information or data that is confidential and proprietary to a third party and is in the possession or control of NETSCOUT. Confidential Information does not include information that: (a) is in the public domain and generally available to the general public without any restriction or license, but specifically excluding personally identifiable information; or (b) becomes publicly available through no act or omission of you; (c) is disclosed to a third party by the owning party without restrictions on disclosure; (d) is rightfully acquired by you from sources without restriction and without breaching this Agreement; (e) is independently developed by you without reference to the Confidential Information; or (f) is required to be disclosed by any authority having jurisdiction so long as NETSCOUT is provided advance notice of such disclosure by you.

Notwithstanding anything to the contrary in this Agreement, You may grant access to the Service to a third party contractor, provided that You maintain agreements with such third party contractor that adequately protect the confidentiality and intellectual property rights of NETSCOUT in the Service, and disclaim any liability or responsibility of NETSCOUT or its suppliers with respect to such third parties.

Export Regulations and Government Rights

You agree to comply strictly with all U.S. export control laws, including the U.S. Export Administration Act and Export Administration Regulations (“EAR”). You will not use the Service to export or re-export any technical data or software to any country identified as a terrorist supporting country, any location subject to comprehensive U.S. export control restrictions or embargo,  or to any person or entity on the U.S. Department of Commerce Denied Persons List or Entity List or on the U.S. Department of Treasury's lists of Specially Designated Nationals, Specially Designated Narcotics Traffickers or Specially Designated Terrorists, or Foreign Sanctions Evaders (together, “Denied Parties”). Access to the Service: a) from the any country identified as a terrorist supporting country, or any other location subject to comprehensive U.S. export control restrictions or embargo  or b) by Denied Parties is strictly prohibited. You are solely responsible for compliance related to the manner in which you choose to use the Service. If you are using the Service on behalf of the U.S. Government, it is classified as “Commercial Computer Software” and “Commercial Computer Software Documentation” developed at private expense, contains confidential information and trade secrets of NETSCOUT and its licensors, and is subject to “Restricted Rights” as that term is defined in the Federal Acquisition Regulations (“FARs”). If your order cites a US Government contract number or is certified under DPAS, Federal Acquisition Regulation (FAR) and DFAR Clauses are incorporated by FAR Part 12, Commercial Items, where applicable and as may be required by government statute, regulation and/or contract. Contractor/Manufacturer is: NetScout Systems, Inc.

Representations, Warranties & Disclaimers

You represent and warrant that: (i) You own all right, title, and interest in or are the licensee with a right to use and/or access all applications and/or content You provide to NETSCOUT to perform the Service and all of the content accessed by NETSCOUT to perform the Service (collectively, “Content”); (ii) You have the right to grant NETSCOUT the access rights and licenses set forth herein and had obtained or will obtain prior to NETSCOUT’ performance of the Service all rights, authorizations or permissions required for NETSCOUT to perform the Service; (iii) that you shall not use the Service, or allow use of the Service, for any unlawful purpose; and (iv) You shall comply with all applicable acceptable use policies provided by NETSCOUT in writing from time to time.

THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND NETSCOUT EXPRESSLY DISCLAIMS ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT REGARDING THE SERVICE OR THE RESULTS TO BE OBTAINED FROM ITS USE. WITHOUT LIMITING THE FOREGOING, NETSCOUT DOES NOT WARRANT THAT THE SERVICE WILL MEET YOUR SPECIFIC REQUIREMENTS, THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE COMPLETE, ACCURATE, OR RELIABLE, THAT THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, OR THAT ANY ERRORS IN THE SERVICE WILL BE CORRECTED.

Limitation of Liability

YOU EXPRESSLY UNDERSTAND AND AGREE THAT NETSCOUT SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF NETSCOUT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), INCLUDING ANY SUCH DAMAGES RESULTING FROM THE USE OR THE INABILITY TO USE THE SERVICE; THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; TERMINATION OF YOUR ACCOUNT; OR ANY OTHER MATTER RELATING TO THE SERVICE.

Neither party will be liable for delays or failures of performance under this Agreement to the extent caused by natural disasters, acts of war or terrorism, labor conditions, governmental actions, Internet disturbance, acts of God and similar causes beyond the party’s reasonable control (“Force Majeure Event”).

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, NETSCOUT’S LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATING TO THE SERVICE (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION) WILL AT ALL TIMES BE LIMITED TO THE GREATER OF FIFTY U.S. DOLLARS (U.S. $50) OR THE AMOUNTS YOU PAID TO NETSCOUT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM.

General Conditions

  • Your use of the Service is at your sole risk, and NETSCOUT makes no representations that the Service will accurately diagnose or correct problems with your network or applications.
  • Technical support is only provided to users that have paid for a Plan Level or Gold Support, and no technical support is available for any free Plan Levels. Technical Support shall be provided in accordance with the terms and conditions set forth in the NETSCOUT Subscription Service Support FAQ, available at http://enterprise.netscout.com/SubscriptionServiceSupportFAQ.
  • You understand that NETSCOUT uses third party vendors and hosting partners to provide the necessary hardware, software, networking, and related technology required to run the Service. NETSCOUT is not responsible for any failures attributable to third parties.
  • You must not modify, adapt or hack the Service or modify another website so as to falsely imply that it is associated with the Service, NETSCOUT, or any other NETSCOUT service.
  • You agree not to reproduce, duplicate, copy, sell, resell, or exploit any portion of the Service, use of the Service, or access to the Service without the express written permission by NETSCOUT.
  • You understand that the technical processing and transmission of the Service may be transferred unencrypted over a network, and assume all risks related thereto. NETSCOUT shall not be liable to you for any liabilities arising from the operation of the Service over the Internet or other network.
  • You must not transmit any worms or viruses or any code of a destructive nature. You must not use the Service in an unlawful manner or for an unlawful purpose. Use of the Service in a manner that, in NETSCOUT’ reasonable discretion, directly or indirectly produces or threatens to produce a negative effect on the Service or network or that interferes with the use of the Service by other customers, including, without limitation, overloading servers or causing portions of the network to be blocked.
  • If the amount of data collected in providing your Service significantly exceeds the average amount of data collected (as determined solely by NETSCOUT) of other NETSCOUT’ customers at your subscription level, we reserve the right to immediately disable your account or throttle your Service until you can reduce your bandwidth consumption.

Indemnification

You agree to indemnify and hold NETSCOUT harmless from any claims, demands, liabilities, losses, damages, costs and expenses (including, without limitation, reasonable attorneys' fees) arising from or relating to (i) your breach of any warranties, representations and agreements set forth in this Agreement, including, without limitation, your unauthorized or improper use of the Service; (ii) any third part claim that NETSCOUT’ provision of the Service to You or in connection with performing the Service for You is not authorized or a claim that NETSCOUT has infringed upon any third party’s intellectual property rights in the Content.

Relationship

You agree that we are free to use any of the comments, information or ideas contained in any content or communication you submit to us or the Service, without notice, compensation or acknowledgement to you, for any purpose whatsoever, including but not limited to advertising and marketing, modifying the Service and developing products and services.

You agree that the comments, information, ideas or other content you submit fully comply with this Agreement, including that your submissions are original with you and accurate and do not violate the rights of any third party or applicable law or ordinance. If it is determined that you have violated any of these terms you may be barred from accessing the Service and we may pursue any remedies available to us. You acknowledge and agree that the relationship between you and NETSCOUT is not a confidential, fiduciary, or other special relationship.

You acknowledge and agree that NETSCOUT and its designees may create on their own or obtain many submissions that may be similar or identical to content you submit. You hereby waive any and all claims you may have had, may have, and/or may have in the future, that the content accepted, reviewed and/or used by NETSCOUT and its designees may be similar to your content.

Miscellaneous

This Agreement shall be governed by the laws of the State of Washington without giving effect to any conflicts of laws principles that may require the application of the law of a different jurisdiction. For any dispute or proceeding arising from or relating to this Agreement, you agree to submit to the jurisdiction of, and agree that venue is proper in, the state or federal courts located in Seattle, Washington. The failure of NETSCOUT to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. The indemnification obligations hereunder shall survive any termination of this Agreement. This Agreement constitutes the entire agreement between you and NETSCOUT and governs your use of the Service, superseding any prior agreements between you and NETSCOUT regarding the Service (including, but not limited to, any prior versions of this Agreement).

These Terms of Subscription Service were last updated on 16, March 2016. You can review the most current version of the Terms of Subscription Service at any time at http://enterprise.netscout.com/TermsOfSubscriptionService.