End User License Agreement & Limited Warranty

IMPORTANT: PLEASE READ THIS END USER LICENSE AGREEMENT CAREFULLY. DOWNLOADING, INSTALLING OR USING TOWERIQ INC. (“TOWERIQ”) OR TOWERIQ-SUPPLIED SOFTWARE CONSTITUTES ACCEPTANCE OF THIS AGREEMENT.

TOWERIQ IS WILLING TO LICENSE THE SOFTWARE TO YOU ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS LICENSE AGREEMENT.  BY DOWNLOADING OR INSTALLING THE SOFTWARE, OR USING THE EQUIPMENT THAT CONTAINS THIS SOFTWARE, YOU ARE BINDING YOURSELF AND THE BUSINESS ENTITY THAT YOU REPRESENT (COLLECTIVELY, “CUSTOMER”) TO THIS AGREEMENT.  IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN TOWERIQ IS UNWILLING TO LICENSE THE SOFTWARE TO YOU AND (A) DO NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE, AND (B) YOU MAY RETURN THE SOFTWARE FOR A FULL REFUND, OR, IF THE SOFTWARE IS SUPPLIED AS PART OF ANOTHER PRODUCT, YOU MAY RETURN THE ENTIRE PRODUCT FOR A FULL REFUND.  YOUR RIGHT TO RETURN AND REFUND EXPIRES 30 DAYS AFTER PURCHASE FROM TOWERIQ OR AN AUTHORIZED TOWERIQ RESELLER, AND APPLIES ONLY IF YOU ARE THE ORIGINAL END USER PURCHASER.

The following terms of this End User License Agreement (“Agreement”) govern Customer’s access and use of the Software, except to the extent (a) there is a separate signed agreement between Customer and TowerIQ governing Customer’s use of the Software or (b) the Software includes a separate “click-accept” license agreement as part of the installation and/or download process. To the extent of a conflict between the provisions of the foregoing documents, the order of precedence shall be (1) the signed agreement, (2) the click-accept agreement, and (3) this End User License Agreement.

License.  Conditioned upon compliance with the terms and conditions of this Agreement, TowerIQ Systems, Inc. or its subsidiary licensing the Software instead of TowerIQ Systems, Inc. (“TowerIQ”), grants to Customer a nonexclusive and transferable license (meaning the license is only transferable with the TowerIQ product on which it is installed) to use for Customer’s internal business purposes the Software, in object code format only, and the Documentation for which Customer has paid the required license fees.  “Documentation” means written information (whether contained in user or technical manuals, training materials, specifications or otherwise) specifically pertaining to the Software and made available by TowerIQ with the Software in any manner (including on CD-Rom, or on-line).

Customer’s license to use the Software shall be limited to, and Customer shall not use the Software in excess of, a single hardware chassis or site(s), as set forth in the applicable Purchase Order which has been accepted by TowerIQ and for which Customer has paid to TowerIQ the required license fee.

Unless otherwise expressly provided in the Documentation, Customer shall use the Software solely as embedded in, for execution on, or (where the applicable documentation permits installation on non-TowerIQ equipment) for communication with TowerIQ equipment owned or leased by Customer and used for Customer’s internal business purposes.

General Limitations.  This is a license, not a transfer of title, to the Software and Documentation, and TowerIQ retains ownership of all copies of the Software and Documentation.  Customer acknowledges that the Software and Documentation contain trade secrets of TowerIQ, its suppliers or licensors, including but not limited to the specific internal design and structure of individual programs and associated interface information.  Accordingly, except as otherwise expressly provided under this Agreement, Customer shall have no right, and Customer specifically agrees not to:

(i)    transfer, assign or sublicense its license rights to any other person or entity separate from the TowerIQ product, or use the Software on unauthorized or secondhand TowerIQ equipment, and Customer acknowledges that any attempted transfer, assignment, sublicense or use shall be void;

(ii)    make error corrections to or otherwise modify or adapt the Software or create derivative works based upon the Software, or permit third parties to do the same;

(iii)    reverse engineer or decompile, decrypt, disassemble or otherwise reduce the Software to human-readable form, except to the extent otherwise expressly permitted under applicable law notwithstanding this restriction;

(iv)    use or permit the Software to be used to perform services for third parties, whether on a service bureau or time sharing basis or otherwise, without the express written authorization of TowerIQ; or

(v)    disclose, provide, or otherwise make available trade secrets contained within the Software and Documentation in any form to any third party without the prior written consent of TowerIQ. Customer shall implement reasonable security measures to protect such trade secrets.

To the extent required by law, and at Customer's written request, TowerIQ shall provide Customer with the interface information needed to achieve interoperability between the Software and another independently created program, on payment of TowerIQ's applicable fee, if any.  Customer shall observe strict obligations of confidentiality with respect to such information and shall use such information in compliance with any applicable terms and conditions upon which TowerIQ makes such information available.

Software, Upgrades and Additional Copies.  For purposes of this Agreement, “Software” shall include (and the terms and conditions of this Agreement shall apply to) computer programs, including firmware, as provided to Customer by TowerIQ or an authorized TowerIQ reseller, and any upgrades, updates, bug fixes or modified versions thereto (collectively, “Upgrades”) or backup copies of the Software licensed or provided to Customer by TowerIQ or an authorized TowerIQ reseller.  NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT:  (1) CUSTOMER HAS NO LICENSE OR RIGHT TO USE ANY ADDITIONAL COPIES OR UPGRADES, WHICH FOR THE PURPOSES OF THIS AGREEMENT SHALL INCLUDE UPDATES, BUG FIXES OR MODIFIED VERSIONS OF THE SOFTWARE, UNLESS CUSTOMER, AT THE TIME OF ACQUIRING SUCH COPY OR UPGRADE, ALREADY HOLDS A VALID LICENSE TO THE ORIGINAL SOFTWARE AND HAS PAID THE APPLICABLE FEE FOR THE UPGRADE OR ADDITIONAL COPIES; (2) USE OF UPGRADES IS LIMITED TO TOWERIQ EQUIPMENT FOR WHICH CUSTOMER IS THE ORIGINAL END USER PURCHASER OR LESSEE OR WHO OTHERWISE HOLDS A VALID LICENSE TO USE THE SOFTWARE WHICH IS BEING UPGRADED; AND (3) THE MAKING AND USE OF ADDITIONAL COPIES IS LIMITED TO NECESSARY BACKUP PURPOSES ONLY.

Proprietary Notices.  Customer agrees to maintain and reproduce all copyright and other proprietary notices on all copies, in any form, of the Software in the same form and manner that such copyright and other proprietary notices are included on the Software.  Except as expressly authorized in this Agreement, Customer shall not make any copies or duplicates of any Software without the prior written permission of TowerIQ.

Term and Termination.  This Agreement and the license granted herein shall remain effective until terminated. Customer may terminate this Agreement and the license at any time by destroying all copies of Software and any Documentation.  Customer’s rights under this Agreement will terminate immediately without notice from TowerIQ if Customer fails to comply with any provision of this Agreement.  Upon termination, Customer shall destroy all copies of Software and Documentation in its possession or control.  All confidentiality obligations of Customer and all limitations of liability and disclaimers and restrictions of warranty shall survive termination of this Agreement.  In addition, the provisions of the sections titled “U.S. Government End User Purchasers” and “General Terms Applicable to the Limited Warranty Statement and End User License” shall survive termination of this Agreement.

Export, Re-Export, Transfer & Use Controls.  The Software, Documentation and technology or direct products thereof (hereafter referred to as Software and Technology), supplied by TowerIQ under this Agreement are subject to export controls under the laws and regulations of the United States (U.S.). Customer shall comply with such laws and regulations governing export, re-export, transfer and use of TowerIQ Software and Technology and will obtain all required U.S. and local authorizations, permits, or licenses. TowerIQ and Customer each agree to provide the other information, support documents, and assistance as may reasonably be required by the other in connection with securing authorizations or licenses. Customer’s obligations under this clause shall survive the expiration or termination of this Agreement.

TowerIQ Limited Warranty for Software.  Subject to the limitations and conditions set forth herein, TowerIQ warrants that commencing from the date of shipment to the original enduser (but in case of resale by an authorized TowerIQ reseller, commencing not more than ninety (90) days after original shipment by TowerIQ), and continuing for a period of the longer of (a) one (1) year or (b) the software warranty period (if any) set forth in the warranty card accompanying the product of which the Software is a part (the “Product”) (if any): (a) the media on which the Software is furnished will be free of defects in materials and workmanship under normal use; and (b) the Software substantially conforms to the Documentation.   The date of shipment of a Product by TowerIQ is set forth on the packaging material in which the Product is shipped.   Except for the foregoing, the Software is provided AS IS. This limited warranty extends only to the Customer who is the original licensee. Customer's sole and exclusive remedy and the entire liability of TowerIQ and its suppliers and licensors under this limited warranty will be (i) replacement of defective media and/or (ii) at TowerIQ’s option, repair, replacement, or refund of the purchase price of the Software, in both cases subject to the condition that any error or defect constituting a breach of this limited warranty is reported to TowerIQ or the party supplying the software to Customer, if different than TowerIQ, within the warranty period.  TowerIQ or the party supplying the Software to Customer may, at its option, require return of the Product as a condition to the remedy.  In no event does TowerIQ warrant that the Software is error free or that Customer will be able to operate the Software without problems or interruptions.  In addition, due to the continual development of new techniques for intruding upon and attacking networks, TowerIQ does not warrant that the Software or any equipment, system or network on which the Software is used will be free of vulnerability to intrusion or attack.

TowerIQ Limited Warranty for Hardware. Subject to the limitations and conditions set forth herein, TowerIQ warrants to the original purchaser (reseller) that the hardware portion of its product is free from any defects in materials or workmanship under normal use for a period of one (1) year from the date of purchase. During the warranty period, and upon proof of purchase, if the product fails due to faulty workmanship and/or materials, TowerIQ will, at its sole discretion, repair or replace the defective product or components. However, when repair or replacement is not practical, TowerIQ may, at its sole discretion elect to refund the original purchase price of the defective product. Any replacement may consist of a new or re-manufactured functionally equivalent product of equal value, and will be made solely at the discretion of TowerIQ. Repaired or replaced hardware is warranted only for the remainder of the original warranty period or 60 days from the date of replacement, whichever is longer, and is subject to the same exclusions and limitations as the original product. Unless expressly stated otherwise within this document, the purchaser is responsible for all shipping, labor, installation, and other costs associated with the repair and/or replacement. All hardware or part thereof that is replaced by TowerIQ, or for which the purchase price is refunded, shall become the property of TowerIQ upon replacement or refund.

Restrictions.
  This warranty does not apply if the Software, Product or any other equipment upon which the Software is authorized to be used (a) has been altered, except by TowerIQ or its authorized representative, (b) has not been installed, operated, repaired, or maintained in accordance with instructions supplied by TowerIQ, (c) has been subjected to abnormal physical or electrical stress, misuse, negligence, or accident; or (d) is licensed, for beta, evaluation, testing or demonstration purposes for which TowerIQ does not charge a purchase price or license fee.

DISCLAIMER OF WARRANTY.  EXCEPT AS SPECIFIED IN THIS WARRANTY, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SATISFACTORY QUALITY, NON-INTERFERENCE, ACCURACY OF INFORMATIONAL CONTENT, OR ARISING FROM A COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW AND ARE EXPRESSLY DISCLAIMED BY TOWERIQ, ITS SUPPLIERS AND LICENSORS.  TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD.  BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, THE ABOVE LIMITATION MAY NOT APPLY. THIS WARRANTY GIVES CUSTOMER SPECIFIC LEGAL RIGHTS, AND CUSTOMER MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION.  This disclaimer and exclusion shall apply even if the express warranty set forth above fails of its essential purpose.

General Terms Applicable to the Limited Warranty Statement and End User License Agreement

Disclaimer of Liabilities.  REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT WILL TOWERIQ OR ITS SUPPLIERS BE LIABLE FOR ANY LOST REVENUE, PROFIT, OR LOST OR DAMAGED DATA, BUSINESS INTERRUPTION, LOSS OF CAPITAL, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY OR WHETHER ARISING OUT OF THE USE OF OR INABILITY TO USE SOFTWARE OR OTHERWISE AND EVEN IF TOWERIQ OR ITS SUPPLIERS OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  In no event shall TowerIQ's or its suppliers' or licensors’ liability to Customer, whether in contract, tort (including negligence), breach of warranty, or otherwise, exceed the price paid by Customer for the Software that gave rise to the claim or if the Software is part of another Product, the price paid for such other Product.  BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

Customer agrees that the limitations of liability and disclaimers set forth herein will apply regardless of whether Customer has accepted the Software or any other product or service delivered by TowerIQ.  Customer acknowledges and agrees that TowerIQ has set its prices and entered into this Agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the parties.'

The Warranty and the End User License shall be governed by and construed in accordance with the laws of the State of New York, without reference to or application of choice of law rules or principles.  The United Nations Convention on the International Sale of Goods shall not apply. If any portion hereof is found to be void or unenforceable by any court of competent jurisdiction, the remaining provisions of the Agreement shall remain in full force and effect. Except as expressly provided herein, this Agreement constitutes the entire agreement between the parties with respect to the license of the Software and Documentation and supersedes any conflicting or additional terms contained in any purchase order or elsewhere, all of which terms are excluded.  This Agreement has been written in the English language, and the parties agree that the English version will govern.