EULA - End User License Agreement
DeepMetrix® Corporation (DeepMetrix or Licensor) END-USER LICENSE AGREEMENT ("EULA") for LiveSTATS®.XSP 7.0 (LiveStats or LIVESTATS) IMPORTANT - PLEASE READ CAREFULLY BY OPENING THE SOFTWARE PACKAGING, COMPLETING THE SERIALIZATION PROCESS, INSTALLING, COPYING, OR OTHERWISE USING THIS LICENSED LIVESTATS SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS END-USER LICENSE AGREEMENT ("EULA"). THIS EULA IS A LEGAL AGREEMENT MADE BETWEEN YOU (YOU OR LICENSEE) AND DEEPMETRIX CORPORATION ("DEEPMETRIX OR LICENSOR). IT SPECIFIES THE TERMS, CONDITIONS AND RESTRICTIONS THAT APPLY TO YOUR USE OF THE ACCOMPANYING LIVESTATS. WHERE THE CONTEXT SO REQUIRES, THE TERM LIVESTATS SHALL BE DEEMED TO INCLUDE ANY ASSOCIATED MEDIA AND DOCUMENTATION. DEEPMETRIX IS A FEDERALLY INCORPORATED CANADIAN CORPORATION WITH ITS PRINCIPAL PLACE OF BUSINESS IN QUEBEC. LIVESTATS IS SOLELY FOR USE BY END USERS ACCORDING TO THE TERMS OF THIS EULA. YOU SHOULD CAREFULLY READ THE EULA BEFORE INSTALLING LIVESTATS. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU ARE NOT AUTHORIZED TO MAKE USE OF LIVESTATS. LIVESTATS MAY BE PROVIDED TO YOU IN A VARIETY OF FORMATS AND WILL NOT IN ALL INSTANCES BE FURNISHED ON STORAGE MEDIA - FOR EXAMPLE, YOU MAY HAVE DOWNLOADED A COPY OF LIVESTATS FROM THE DEEPMETRIX WEBSITE. THE EULA APPLIES TO ALL VERSIONS AND RELEASES OF LIVESTATS AND TO THE SERIAL NUMBER(S) (SERIALIZATION CODE(S)) OF LIVESTATS. ANY USE, REPRODUCTION, OR REDISTRIBUTION OF LIVESTATS NOT IN ACCORDANCE WITH THE TERMS OF THE EULA IS EXPRESSLY PROHIBITED. OPERATION OF LIVESTATS: LiveStats incorporates DeepMetrixs proprietary Web Analytics Server software. It has been designed to read website activity log files that have been written by supported HTTP servers via a TCP/IP network. LiveStats then interprets and archives the resulting statistical data. End-users may connect to LiveStats through the use of supported web browser software to generate reports for their web site(s). LiveStats consists of the following five functionality components that must be installed and configured in order for LiveStats to operate correctly: 1. The LiveStats Reporting Application (the LiveStats Reporting Application) is used to, generate reports for configured web sites, control user permissions, and to communicate with the DeepMetrix Servers. 2. LiveStats Data Analyzer (Data Analyzer) is used to gather the information needed to create reports, including log file information, RDNS and demographic data. 3. LiveStats supports using the Microsoft® SQL Server 2000 database server or the provided Microsoft® SQL Server 2000 Desktop Engine to archive LiveStats statistical data. Microsoft SQL Server 2000 database server is not bundled with LiveStats; it must be purchased separately from your vendor; it is your responsibility to ensure that it is installed and used in accordance with the licensing agreement(s) included in your Microsoft SQL Server 2000 software package. 4. LiveStats Services (Live Stats Services) are used to perform maintenance and automation, including report emailing, database packing, forecasting and averaging. 5. Migration Utility (Migration Utility) is used to bulk import virtual servers and virtual server settings into LiveStats. You acknowledge and agree that; * You will not modify, disassemble, or create derivative works based on the attributes communicated under this EULA nor will you publish, sell, distribute, or redirect the attributes in any format. * LiveStats contains technical restrictions and limitations, and operation is dependent on configuration parameters provided by you. * The ability of LiveStats to read and interpret log files correctly is largely dependent upon the ability of your web server(s) to write and format log files correctly. * Operation of LiveStats may be affected by Internet, local area network (LAN), and wide area network (WAN) network-related problems and that configuration changes may affect performance. * Insufficient hard disk space resulting from the operation of LiveStats or any other software sharing the same hard disk(s) will affect operation of LiveStats. * The inability to communicate with other servers such as, Microsoft® SQL Server 2000 database servers or Microsoft® SQL Server 2000 Desktop Engine or web server(s) may affect operation of LiveStats, and furthermore that configuration or reconfiguration of these servers may affect operation of LiveStats. PROTECTION AND OWNERSHIP This EULA does not entitle you to any intellectual property rights in LiveStats. Licensor retains all copyright and other intellectual property ownership in and to LiveStats, all printed materials, online or electronic documentation, and all copies and derivative works of LiveStats and materials. Copyright laws and international copyright treaties, as well as other intellectual property laws and treaties protect LiveStats. LiveStats is licensed, not sold and Licensor retains ownership of it and all copies provided under this EULA. You agree not to challenge Licensors rights in or otherwise attempt to assert any rights in LiveStats, except those provided under this EULA. GRANT OF LICENSE Licensor hereby grants you a nonexclusive, nonassignable, nonsublicensable and non-transferable right to; 1. Install and use multiple copies of the executable version (no source code) of the LiveStats Reporting Application provided they are all installed on the same local area network (LAN) and sufficient LiveStats licenses are available to operate each installation, Licensor hereby further grants you the right to use LiveStats to generate reports for your Customers web site(s). Customer is defined as a private individual or company whose website you host. You agree that you will only use LiveStats to provide website analytics to your hosted Customers; any other use is expressly prohibited. This EULA does not grant you any right to receive any other DeepMetrix software, service or solution, or enhancement or update. The rights provided hereunder are personal to you. Accordingly, you may not assign or transfer this EULA or the use of LiveStats. RESTRICTIONS * You agree not to use LiveStats except as expressly permitted under this EULA. * You agree not to use LiveStats to create website statistics or website analytics service(s) for any Customer(s) whose web site(s) you do not host. * You agree not to disclose, modify, adapt, translate, disassemble, decompile, or reverse engineer LiveStats, or otherwise attempt to discover the source code of LiveStats. * You agree not to permit others to use LiveStats; modify, translate, reverse engineer, de-compile, disassemble, or create derivative works based on LiveStats; copy LiveStats; rent, lease, transfer or otherwise transfer rights to LiveStats; or remove any proprietary notices or labels on LiveStats. * You acknowledge that LiveStats contains information deemed confidential or otherwise proprietary to Licensor, and you agree to handle LiveStats with at least the same degree of care employed with respect to your own confidential or proprietary information. * You shall pay all applicable taxes related to the licensing of LiveStats. If necessary, you shall provide Licensor written evidence of your exemption from otherwise applicable taxes. TRIAL VERSION In the event that LiveStats is a trial version, the terms of this section shall also apply. Licensor uses a trial system that restricts LiveStats to a limited working time (30 days). The Trial Version will expire 30 days after installation of your assigned Serialization Code and disable itself, upon which action your right to make use of LiveStats will terminate. The method of restriction for the trial system is a trade secret of Licensor and may not be published, disclosed or otherwise revealed. You agree that Licensor is not obligated in any way to reveal or publish the components, files, code or methods used to enforce the trial period. You further agree that you will not do anything to circumvent or defeat the features designed to stop operation of LiveStats after the time when license expires. A trial version of LiveStats may be converted to a Full Version upon installation of a purchased Serialization Code purchased from DeepMetrix Inc.. Thereafter, the following terms applicable to the Full Version shall apply. FULL VERSION In the event that LiveStats is a full version, the terms of this section shall also apply. You will be assigned a Serialization Code. Installation of the full version of LiveStats requires that you enter a valid Serialization Code into LiveStats. Upon entry of your valid Serialization Code LiveStats is authorized to read log files and generate reports for the specific number of virtual domains or virtual servers that you have paid DeepMetrix to report; these may be located on any computer(s) on your network. Without a Serialization Code LiveStats will not operate. You agree not to publish, disclose or otherwise reveal the Serialization Code. You agree not to enter any Serialization Code into more than one (1) installation of LiveStats. BACKUP OF LIVESTATS You may make one (1) copy of LiveStats solely for backup purposes. If you receive your first copy of LiveStats electronically, and a second copy on media, the second copy may be used for archival purposes only. If you make backup copies of LiveStats, the original copy of LiveStats and all backup copies that you make may not leave your control and are owned by DeepMetrix. LIMITATIONS AND DISCLAIMERS THE WARRANTY AND REMEDY SET FORTH BELOW ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES AND REMEDIES, ORAL OR WRITTEN, EXPRESSED OR IMPLIED. No reseller, dealer, agent or employee of Licensor is authorized to modify or add to the following warranties and remedies. * Licensor warrants LiveStats media to be free from defects in materials under normal use for a sixty (60) day period from the date of delivery to you as evidenced by your purchase receipt. * If you discover physical defects in the software media, Licensor will at its option either replace the software media at no charge to you or refund the license fee paid to the Licensor specifically for use of LiveStats (the License Fee) provided you return LiveStats with proof of payment to Licensor during the said 60-day period. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY STATED ABOVE, LIVESTATS IS LICENSED AS IS AND YOU, THE LICENSEE, ASSUME THE ENTIRE RISK AS TO ITS QUALITY AND PERFORMANCE. LICENSOR: * MAKES NO REPRESENTATION OR WARRANTY NOR ARE THERE ANY CONDITIONS, EITHER EXPRESSED OR IMPLIED, OF ANY KIND WITH RESPECT TO LIVESTATS, ITS OPERATION, INFRASTRUCTURE INTEGRATION (NETWORK COMMUNICATION OR TCP/IP TRANSACTION) OR ABILITY TO OPERATE OR COMMUNICATE ON AN ERROR-FREE BASIS; * HEREBY EXPRESSLY DISCLAIMS ANY AND ALL EXPRESSED AND IMPLIED REPRESENTATIONS, WARRANTIES AND CONDITIONS, INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABLE QUALITY, PERFORMANCE, FITNESS FOR ANY PARTICULAR PURPOSE, SUITABILITY FOR ANY PARTICULAR PURPOSE, OR THAT THE OPERATION OF LIVESTATS WILL BE FREE FROM ERRORS OR UNINTERRUPTED; AND * DOES NOT WARRANT THE ACCURACY OF THE REPORTS GENERATED. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS EULA AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR LIVESTATS. SOME JURISDICTIONS DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU. EXCLUSIVE REMEDY LICENSORS CUMULATIVE LIABILITY TO YOU OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS EULA SHALL NOT EXCEED THE LICENSE FEE PAID TO LICENSOR FOR USE OF LIVESTATS. IN NO EVENT WILL LICENSOR BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR LOST PROFITS ARISING OUT OF THE USE OR INABILITY TO USE LIVESTATS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN PARTICULAR, AND WITHOUT LIMITATION, LICENSOR SHALL HAVE NO LIABILITY FOR ANY DATA STORED OR PROCESSED WITH LIVESTATS, INCLUDING THE COSTS OF RECOVERING SUCH DATA. LICENSORS ENTIRE LIABILITY UNDER THIS EULA SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR LIVESTATS. EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES LICENSOR WILL NOT BE LIABLE TO LICENSEE OR ANY THIRD-PARTY CLAIMANT FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXCLUSION CONTAINED IN THIS PARAGRAPH SHALL APPLY REGARDLESS OF THE FAILURE OF THE EXCLUSIVE REMEDY PROVIDED IN THE FOREGOING PARAGRAPH. Export Control You agree that you will not export, ship, transmit, or re-export LiveStats to any country, person, entity or end user subject to U.S.A. or Canadian export restrictions. Audit Rights Licensor and/or its authorized representatives may, upon fifteen (15) days advance notice and at its expense, conduct an annual audit, during your normal business hours, of your use of LiveStats and documentation to verify compliance with this EULA. You shall provide Licensor with access to records, hardware and employees in order to perform the audit. "Documentation" means explanatory and informational materials concerning LiveStats, in printed or electronic format, which Licensor has released for distribution to end users with LiveStats, including without limitation, manuals, descriptions, user and/or installation instructions, diagrams, printouts, listings, flowcharts and training materials, contained on visual media such as paper or photographic film, or on other physical storage media in machine-readable form. Licensor and/or its authorized representatives may make copies and extracts of any of such information and materials, or require you to provide copies thereof at Licensors expense, and you shall afford all facilities for such audits and inspections and furnish Licensor and/or its authorized representatives with such information (including access to your personnel) as it or they may from time to time request with reference to such audits and inspections, and shall otherwise fully co-operate with such audits and inspections. Licensor may immediately terminate this EULA should such either audit method reveal that you have violated the terms of this EULA. In addition to any other obligations you may have to Licensor upon termination, you agree that you will, upon demand, fully reimburse Licensor for all amounts incurred by it in conducting such audit as well as amounts incurred in relation to termination of this EULA and that you will also pay to Licensor any amounts otherwise due under this EULA for any usage beyond the scope of this EULA. Resellers If Licensee acquired LiveStats through an authorized Licensor reseller (Reseller), Licensee acknowledges that (i) payment and delivery terms for LiveStats must be established separately and independently between the Licensee and the Reseller; (ii) this EULA constitutes the entire agreement between the Licensee and Licensor regarding the license rights for LiveStats as described above and is controlling; (iii) the terms and conditions of any purchase order or any other agreement between the Licensee and the Reseller are not binding on Licensor; (iv) the Reseller is not Licensors agent and is not authorized to alter, amend or modify the terms of this EULA or to otherwise grant any license or other rights relating in any way to LiveStats; and (v) Licensees non-payment of any amount due to a Reseller under this EULA shall constitute a basis for Licensors termination of this EULA. Licensee further acknowledges that Licensor makes no representation or warranty with regard to any services provided by any Reseller, or any actions or failures to act by any Reseller. Maintenance and Support If you purchased a DeepMetrix Service Agreement separately or included within an LiveStats Initial Purchase the Maintenance and Support terms defined therein shall apply, otherwise you are entitled to no-charge email and telephone assistance from 9am to 5pm Eastern Time, Monday through Friday, except on statutory holidays for a period of thirty (30) days from the day LiveStats is purchased; Support is provided on a priority basis; Licensor shall not be responsible for any telephone, internet and email costs incurred by Licensee nor shall Licensor be responsible to Licensee for its inability to provide services where such inability arises from or is due to circumstances beyond Licensors control - such circumstances include power or telephony interruptions, adverse weather conditions, acts of God, and labor disputes. Licensor is not responsible; * To provide support or assistance for Microsoft® SQL Server 2000; * To provide support or assistance for add-ons or utilities such as but not limited to Microsoft SQL Server Profiler, Microsoft SQL Server Query Analyzer, or Microsoft Enterprise Manager; * For problems that may result when applying Microsoft SQL Server Service Packs or for problems that may result from inadequate, improper or incomplete Microsoft SQL Server database back-ups prior to applying Microsoft SQL Server Service Packs; * For problems that may arise as a result of inadequate, improper or incomplete Microsoft SQL Server database back-ups; * For providing support or assistance regarding how to move Microsoft SQL Server databases from one computer hard disk to another, resulting from problems such as but not limited to inadequate hard drive space or insufficient hard drive speed; * For disclosing the Microsoft SQL Server database schema used by LiveStats; * For providing assistance or support regarding how to access Microsoft SQL Server databases other than for LiveStats; * To provide any person other than Microsoft Certified DBA or equivalently qualified technologist(s) assistance or support on how to use LiveStats with Microsoft® SQL Server 2000 even if the Licensee is otherwise eligible for support. Payment You are responsible for making full and timely payment for LiveStats. You shall pay all of Licensors reasonable fees, costs and expenses (including reasonable lawyers fees) if legal action is required to collect outstanding balances. Communication By registering or downloading this product, you make the registered e-mail address available to receive information about Licensor and our products. To remove yourself from this mailing list, please email email@example.com . Publicity Provided that neither party releases, discloses, or makes publicly available any Confidential Information of the other party, Licensor and Customer may refer generally to the existence of this Agreement. Licensor, at its discretion may list Customer on the deepmetrix.com website. You may communicate your choice to remain anonymous in writing or by telephone, fax or email. Termination * Your right to use LiveStats continues until this EULA is terminated. * This EULA will automatically terminate if you fail to comply with the material terms of this EULA. * You may terminate this EULA at any time by destroying all of your copies of LiveStats. * Upon any termination, you agree to remove LiveStats from your computers, destroy all copies of LiveStats, and, upon request from Licensor, certify in writing your compliance herewith. * Your obligation to pay accrued charges and fees shall survive any termination of this EULA. General If any of the terms, or portions thereof, of this EULA are invalid or unenforceable under any applicable statute or rule of law, the court shall reform the EULA to include an enforceable term as close to the intent of the original term as possible; all other terms shall remain unchanged. This EULA constitutes the entire agreement between you the Licensee and Licensor relating to the subject matter hereof, and any additions to, or modifications of, this EULA shall be binding upon the parties only if the same shall be in writing and duly executed by you and by a duly authorized officer of Licensor. The terms and conditions of any corresponding purchase order or other order confirmation form relating to DeepMetrix are only binding on Licensor if such terms and conditions are agreed to in writing in accordance with the prior sentence and in a document other than the purchase order or other order confirmation form. This EULA shall be deemed to have been made in and shall be governed by and construed in accordance with the laws of Ontario and the federal laws applicable therein and the parties hereto submit to the jurisdiction of the courts of such province, provided, however, that nothing in this subsection shall limit the right of Licensor to bring proceedings against you elsewhere. The waiver or failure of either party to exercise in any respect any right provided for in this EULA shall not be deemed a waiver of any further or future right under this EULA. This EULA shall inure to the benefit of, and is freely assignable to, Licensors successors and assignees of rights in DeepMetrix Referenced Trademarks Microsoft and Windows are either registered trademarks or trademarks of Microsoft Corporation in the United States and/or other countries. DeepMetrix and LiveStats are either registered trademarks or trademarks of DeepMetrix Inc. in Canada, and the United States and/or other countries.