SiteScope License Agreement

By clicking "I agree" and/or by installing, copying, or otherwise using the SiteScope software program of Mercury Interactive Corporation and/or its Affiliates ("MIC"), or of its licensors, provided hereunder ("Licensed Program"), You agree to be bound by the terms of this SiteScope License Agreement ("Agreement"). If You do not agree to the terms of this Agreement, do not install any evaluation or other copies of the Licensed Program, immediately cease all use of any evaluation or other installed copies of the Licensed Program, and remove from Your system computers and destroy any and all such copies and any associated documentation downloaded by You or provided from MIC ("Documentation").

MIC, or its licensors, owns all intellectual property rights in and to the Licensed Program and Documentation, including patent, copyright, trade secret, trademark and other proprietary rights. Your rights are limited to those expressly granted in this Agreement. This Agreement grants You a nontransferable and non-exclusive license to use, solely for Your internal business purposes, the Documentation and the object code version of the Licensed Program for a perpetual or limited term, as applicable, up to the number of Points, as defined below and paid for by You, and identified in the invoice for the Licensed Program, under the terms and conditions set forth herein. The Licensed Program may contain a device or key that limits usage to that which has been paid for by You, and that effectuates the conditions of use of a particular Licensed Program as set forth herein.

You may:

• make copies of the Licensed Program as needed to use the license granted hereunder for up to the authorized number of licensed Points, as defined below and paid for by you, and for backup and/or archival purposes;
• install the downloaded Licensed Program and permitted copies in the country in which Your order for the license to the Points is placed, on computers operated by You and located on premises operated by You ("Sites");
• use the downloaded Licensed Program and permitted copies to execute Monitoring Instances, as defined below, only up to the number of Points paid for by You. Points are the numerical tracking system representing the total number of Monitoring Instances You are authorized to execute, regardless of the number of units of the Licensed Program You use for such monitoring. A Monitoring Instance is a unique system command, a unique network protocol command, or a unique application availability metric, established and defined through use of the Licensed Program that queries a server, other computer or application for status information.
• evaluate the SiteScope Licensed Program for 10 days from the date of download. All such evaluation usage shall be in accordance with the terms of this Agreement. If You decide not to purchase a license to the evaluated SiteScope Licensed Program at the expiration of the 10 day evaluation period, You shall immediately cease all use of such Licensed Program and remove all installed copies. You shall not be entitled any further evaluation of any such evaluated Licensed Program and you may not download SiteScope for any further purpose without purchasing a license. If You decide to purchase a license to an evaluated SiteScope Licensed Program at the expiration of the 10 day evaluation period, and pay the applicable license fees, this Agreement shall govern all use under the license; and
• copy and use the Documentation as reasonably necessary in connection with Your license to the Licensed Program.

You may not (except as provided above):

• modify, adapt, decompile, disassemble, or reverse engineer any Licensed Program, except to the extent that the foregoing restriction is expressly prohibited by applicable law;
• create derivative works based on a Licensed Program;
• make copies of a Licensed Program;
• allow any third party to access or use the Licensed Program or Documentation, except for third party consultants under an obligation to You to use the Licensed Program in accordance with the terms of this Agreement at a Site;
• sublicense to any third party a Licensed Program or the Documentation, or any part thereof;
• use the Licensed Program or Documentation to provide services to any third party, including an affiliate or subsidiary, including but not limited to installation, integration, support, testing or monitoring of hardware, software and/or any networking solution;
• use any Licensed Program as an add-in product to any third party product without the prior written consent of MIC, except to the extent that the foregoing restriction is expressly provided by applicable law;
• use, evaluate or view the Licensed Program or Documentation for the purpose of designing, modifying, or otherwise creating any software program, or any portion thereof, which performs functions similar to the functions performed by the Licensed Program;
• provide externally or to third parties any oral or written communication that describes or summarizes the features, functions or performance characteristics of the Licensed Program and Documentation, or that compares the Licensed Program with any other similar product of Yours or any third party;
• disclose, reproduce, summarize, distribute or use the Licensed Program or Documentation except as necessary to exercise the license granted hereunder; or
• without the prior written consent of MIC, transfer or assign Your rights under this Agreement, including an assignment by operation of law.

You acknowledge and agree that:

• payment terms are net thirty (30) days from invoice date;
• You shall pay MIC for all sales, use and excise taxes and any other tax assessments on the Licensed Programs You order, exclusive of taxes based on MIC net income;
• any copy of the Licensed Program or Documentation, including any partial copy, is the property of MIC or its licensors, and You will include on each such copy all copyright, trademark and other proprietary rights notices included on the originals;
• the Licensed Program and Documentation contain valuable proprietary information and trade secrets of MIC and You shall protect the secrecy of, and avoid disclosure and unauthorized use of, the Licensed Program and Documentation, using at least those measures that You take to protect Your own most highly confidential information;
You shall comply with all applicable export control laws and regulations with respect to the Licensed Program and Documentation provided hereunder;
• any violation or threatened violation of this Agreement may cause irreparable injury to MIC for which injunctive relief would be appropriate, in addition to all legal remedies; and
• upon any violation of any of the provisions of this Agreement or the expiration of the term of Your license, Your rights to use the Licensed Program and Documentation shall automatically terminate and You shall be obligated to return to MIC or destroy all copies of the Licensed Program and Documentation.

LIMITED WARRANTY. MIC warrants that for a period of ninety (90) days from the date of delivery ("Warranty Period"), the Licensed Program will operate substantially in accordance with the Documentation. MIC does not warrant that the functions contained in the Licensed Program will meet Your requirements or that operation of the Licensed Program will be uninterrupted or error free. You must inform MIC in writing during the Warranty Period if the Licensed Program does not operate as warranted and provide to MIC such information and materials as MIC may reasonably request to document and reproduce such problem and to verify whether any proposed solution corrects such problem. Following the receipt of such information and materials, if MIC determines that the Licensed Program does not operate as warranted, then MIC will at its election, either: (a) modify the Licensed Program so that it does operate as warranted; (b) replace the Licensed Program with other software offering substantially similar functionality; or, (c) if neither (a) nor (b) are commercially practicable, refund the license fee paid to MIC for the Licensed Program.

EXCLUSIONS. MIC will have no responsibility, warranty or other obligations whatsoever if You: (a) use the Licensed Program in a manner inconsistent with the Documentation or this Agreement; (b) modify the Licensed Program; or (c) cause a failure of the Licensed Program through accident, abuse or misapplication.

NO OTHER WARRANTIES. TO THE FULLEST EXTENT ALLOWED BY LAW, THE WARRANTIES AND REMEDIES PROVIDED IN THE LIMITED WARRANTY SECTION ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OF INFORMATION GENERATED, SATISFACTORY QUALITY, AND NON-INFRINGEMENT, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. THESE DISCLAIMERS OF WARRANTY CONSTITUTE AN ESSENTIAL PART OF THIS AGREEMENT.

INTELLECTUAL PROPERTY INDEMNITY. Subject to the Intellectual Property Indemnity Limitations Section below, MIC will defend, at its own expense, any claim, suit or proceeding brought against You to the extent it is based upon a claim that any Licensed Program ("Indemnified Product") obtained pursuant to this Agreement infringes upon any patent, or copyright, or misappropriates a trade secret of any third party ("Claim"). You shall: (1) promptly notify MIC in writing of any such Claim; (2) give MIC full information and assistance in connection therewith; and (3) give MIC the sole right to control the defense of any such Claim and the sole right to settle or compromise any such Claim. MIC will pay all damages, costs, and expenses finally awarded to third parties against You in such action or agreed to in settlement by MIC. If a Licensed Program is, or in MIC's opinion might be, held to infringe or misappropriate as set forth above, MIC may, at its option and expense replace or modify such Licensed Program with a program substantially similar in functionality so as to avoid infringement or misappropriation, or procure the right for You to continue the use of such Licensed Program. If neither of such alternatives are, in MIC's opinion, commercially reasonable, such Licensed Program shall be returned to MIC, and MIC shall refund the fees paid by You to MIC for such Licensed Program, as limited by the next sentence. The refund for a Licensed Program that has a perpetual license shall be based on a five year straight line depreciation, and the refund for term licenses shall be the prorated unused portion of prepaid fees for such term licenses. TO THE FULL EXTENT PERMITTED BY LAW, THE FOREGOING STATES THE ENTIRE LIABILITY OF MIC TO YOU CONCERNING INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS, INCLUDING BUT NOT LIMITED TO PATENT, COPYRIGHT, TRADEMARK, AND TRADE SECRET RIGHTS, AND IS IN LIEU OF AND REPLACES ANY AND ALL OTHER EXPRESS, IMPLIED OR STATUTORY WARRANTIES OR CONDITIONS REGARDING INFRINGEMENT OR MISAPPROPRIATION.

INTELLECTUAL PROPERTY INDEMNITY LIMITATIONS. MIC will have no liability for, and no obligation to defend You against any claim of infringement to the extent such claim is based on: (a) use of an Indemnified Product outside the scope of this Agreement; (b) use of a superseded or altered release of an Indemnified Product; (c) the combination, operation, or use of an Indemnified Product with software, hardware or other materials not specified in the Documentation; (d) any modification of the Indemnified Product not made or authorized in writing by MIC; or (e) Your use of the Indemnified Product after MIC's notice to You that it shall cease use of the Indemnified Product due to such claim. The above exclusions apply to the extent that the infringement would have been avoided but for such improper use.

US GOVERNMENT RESTRICTED RIGHTS. The Licensed Program and Documentation are "commercial item(s)," as that term is defined at 48 C.F.R 2.101 (Oct. 1995), consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R 12.212 (Sept. 1995). Consistent with 48 CFR 12.212 and 48 C.F.R 227.7202-1 through 227.7202-4 (June 1995) (or an equivalent provision, e.g., in supplements of various U.S. government agencies, as applicable), all U.S. Government users acquire the Licensed Program and Documentation with only those rights set forth herein.

LIMITATION OF LIABILITY. EXCEPT FOR MIC'S OBLIGATIONS UNDER "INTELLECTUAL PROPERTY INDEMNITY", ANY DAMAGES ARISING FROM A BREACH OF THE CONFIDENTIALITY OBLIGATIONS OR THE LICENSE GRANT AND RESTRICTIONS FOR THE LICENSED PROGRAMS, TO THE FULLEST EXTENT ALLOWED BY LAW, THE PARTIES EXCLUDE ANY LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, FOR INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

EXCEPT FOR MIC'S OBLIGATIONS UNDER "INTELLECTUAL PROPERTY INDEMNITY" MIC'S MAXIMUM LIABILITY TO YOU FOR DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, WILL NOT EXCEED THE AMOUNTS PAID BY YOU FOR THE PARTICULAR LICENSED PROGRAMS GIVING RISE TO THE CAUSE OF ACTION.THESE DISCLAIMERS AND LIMITATIONS OF LIABILITY WILL NOT BE AFFECTED IF ANY REMEDY PROVIDED HEREIN FAILS OF ITS ESSSENTIAL PURPOSE.

LICENSE RESTRICTIONS APPLICABLE TO TESTING OF MICROSOFT PRODUCTS. Any Licensed Program used to test Microsoft products is licensed for use solely as an internal testing tool for purposes of testing web sites owned or leased by You. If, as part of internal testing, You use the such Licensed Program to perform competitive analysis and/or benchmark testing on any third party software on sites owned or leased by You, the results of such testing shall be used only for Your internal purposes and shall not be disclosed to any third party without the prior written consent of MIC and the owner of such third-party software.

AUDIT RIGHTS. You shall maintain complete and accurate books and records relating to compliance with the license to the Licensed Program. MIC shall have the right at its own expense (except upon discovery of material noncompliance), during Your normal business hours and upon reasonable written notice, to audit your computers, books and records to verify your compliance with the terms of this Agreement.

SURVIVABILITY. The following shall survive expiration or termination of this Agreement: License and Confidentiality Restrictions, Intellectual Property Indemnity Limitations, Limitation of Liability, Audit Rights, and General Provisions. Any perpetual licenses shall also continue to be subject to the License Grant, and No Other Warranties.

GENERAL PROVISIONS. This Agreement represents the complete agreement concerning this license, supersedes all prior agreements, and may be amended only by a writing executed by duly authorized representatives of both parties. The provisions of any order document used by You shall be of no affect (notwithstanding any provisions in such order document to the contrary), except for license, term, and Site selection, as well as pricing and ship-to information. This Agreement is governed by, and is to be interpreted in accordance with the laws of the State of California, excluding its conflict of law rules. The United Nations Convention on Contracts for the International Sale of Goods is expressly disclaimed. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid under any applicable statute, rule or law, the parties agree that such invalidity shall not affect the validity of the remaining provisions of this Agreement, and further agree to substitute for the invalid provision a valid provision which most closely approximates the intent and economic effect of the invalid provision. Any terms in Your order document which are inconsistent with the terms of this Agreement are not accepted by MIC and the terms of this Agreement will prevail. Headings used in this Agreement are provided for convenience only, and shall not in any way affect the meaning or interpretation hereof. A waiver of a breach or default under this Agreement shall not be a waiver of any other breach or default. Failure of either party to enforce compliance with any term or condition of this Agreement shall not constitute a waiver of such term or condition unless accompanied by a clear written statement that such term or condition is waived. MIC will not be responsible for any failure to perform due to "force majeure" causes beyond its reasonable control including, but not limited to, acts of God, riots, embargoes, terrorist acts, acts of civil or military authorities, disruptions in the flow of data to or from networks, denial of or delays in processing of export license applications, accidents, strikes, fuel crises or power outages.

Mercury Interactive, the Mercury Interactive logo, and all other trademarks which identify the Licensed Program are the trademarks, and in some jurisdictions may be registered trademarks, of Mercury Interactive or its affiliates. All other company, brand and product names are the trademarks of their respective holders

© 2003 Mercury Interactive Corporation. All rights reserved.