NetIQ®
Access Manager 4.2
NetIQ
End
User License
Agreement
PLEASE
READ THIS AGREEMENT CAREFULLY. BY
INSTALLING, DOWNLOADING OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO THE TERMS
OF THIS AGREEMENT. IF YOU DO NOT AGREE
WITH THESE TERMS, YOU ARE NOT PERMITTED TO DOWNLOAD, INSTALL OR USE THE
SOFTWARE AND YOU SHOULD NOTIFY THE PARTY FROM WHICH YOU PURCHASED THE SOFTWARE TO
OBTAIN A REFUND. THE
SOFTWARE MAY NOT BE SOLD, TRANSFERRED, OR FURTHER DISTRIBUTED EXCEPT AS
AUTHORIZED BY LICENSOR.
This End
User License Agreement (“Agreement”) is a legal agreement between You (an entity or a person) and NetIQ Corporation (“Licensor”). The software product identified in the title
of this Agreement for which You have acquired
licenses, any media and accompanying documentation (collectively the
“Software”) is protected by the copyright laws and treaties of the United
States (“U.S.”) and other countries and is subject to the terms of this
Agreement. If the laws of Your country of origin require contracts to be in the local
language to be enforceable, such local language version may be obtained from Licensor
upon written request and shall be deemed to govern Your purchase of licenses to
the Software. Any update, mobile
application, module or adapter or support release to the Software that You may
download or receive that is not accompanied by a license agreement is Software
and governed by this Agreement. If the
Software is an update or support release, then You must
have validly licensed the version and quantity of the Software being updated or
supported in order to install or use the update or support release.
LICENSED
USE
Commercial Software.
DEFINITIONS:
"Instance" means the initial copy of
the Software necessary for execution of the Software and each additional copy
(or partial copy) of the Software stored or loaded in memory or virtual memory.
"User"
means a user object in a single directory tree (or other class of object that
contains data representing a person, such as objects containing credit card
information or PIN numbers) that has (a) access or use rights to any portion of
the Software, or (b) access or use rights to products (devices, hardware, or
software) being managed by the Software, regardless of whether the user object
is assigned to a person or device. User objects (or other classes of objects)
representing the same person that are linked to each other within a single tree
and/or linked across multiple trees count as only one User.
"Access
Gateway Software" means the gateway software that performs access
management services to protected web applications, including role based
authorization, web single sign-on and data encryption.
"Identity
Server" means the server software that performs authentication,
federation, role definition and policy distribution.
LICENSE GRANT.
The Software licensing models are
typically associated with a “per” phrase stating the counting basis for the
Software (for example, “Per User” or “Per Managed Identity” or “Per FTES”, each
referred to hereafter as a “Managed Object”). Such phrases may appear in a
variety of sources such as the Documentation, the Purchase Documentation, or product use rights and restrictions as set forth in a Product Use Rights Appendix attached to this
Agreement (in total, “Sources”).
You may install, use and execute the
component(s) of the Software for that number and type of Managed Objects for
which You have paid Licensor a license fee.
The manner of calculating the type and number of Managed Objects for
which You need a license for the Software shall be
determined by Licensor based on Your configuration and operation of the
Software and interpreted with reference to the Sources, unless otherwise agreed
in a fully executed agreement between You and Licensor.
The following licenses apply to Your use
of the Software depending on whether You have purchased licenses to the
Software under a User license model or an Instance license model. For evaluation rights, please see the
Evaluation Software paragraph below.
User Model.
You must acquire a user license for each User. Each person who accesses
or uses the Software must have at least one user object uniquely assigned to
that person and access the Software through the user object.
Instance Model. The Access Gateway component of the Software and the Identity Server
component of the Software are licensed separately. Use of each requires purchase of the
applicable quantity of Access Manager instance
licenses.
Access
Gateway. You must
acquire an Access Manager instance license for each
Instance of the Access Gateway Software.
Identity
Server. You must
acquire an Access Manager instance license for each
Instance of the Identity Server Software.
NetIQ Access Manager Appliance. If You
deploy the Software as an appliance, then You will have installed an Instance
of the Access Gateway Software as well as an Instance of the Identify Server
Software. Consequently, You must acquire two (2) Access Manager Instance licenses
for each appliance.
Managed Identity Model
If You have a “per managed
identity” license, the following terms and conditions apply to Your use of the
Software:
A "per managed identity" license is
required for every active “identity” managed by or connecting through the
licensed product. A Managed Identity means user and/or custom objects
(including either or both human and/or non-human objects but not including
group objects) collected within the Software from all user or identity sources. For purposes hereof, an “identity” means user
and/or custom objects including either or both human and/or non-human objects.
Inactive identities (not accessed in >120 days and marked as
"disabled") do not require licenses.
Duplicated identities within the Software will each require a managed
identity license.
FTES Model
If you have a “per FTES” license, the following
terms and conditions apply to your use of the Software:
FTES means full time equivalent staff. You must purchase an FTES License for every
full time and part time staff, faculty and administration, regardless of role
and anticipated use of the Software.
Students, alumni and parents do not require a license but use of the
Software by such groups shall be limited to use for academic purposes
only. The number of FTES shall be
calculated as the sum of your most recently reported number of (a) full-time
equivalent staff (counted as one FTES for licensing purposes) and (b) part-time
staff (counted as ˝ FTES for licensing purposes). The FTES calculation for each
category of full and part time staff must be demonstrated through a verifiable
means that may include use of an audited annual report, an organization’s human
resource system, or the government website, government report, or other
published report provided by Customer that shows accurate information. NetIQ may also verify Your
reported FTES count by accessing http://nces.ed.gov/globallocator/ or other government and non-profit databases.
SLES® Appliance License. If the Software is
deployed as an appliance and includes the SUSE® Linux Enterprise
Server product (SLES), then You are subject to the following restriction with
respect to use of SLES. Notwithstanding
the license rights in the license agreement accompanying the copy of SLES You
received with the Software, You agree to use SLES solely for the purpose of
running the Access Manager Software.
SLES includes components that are open source packages accompanied by
separate license terms. Your license
rights with respect to individual components accompanied by separate license
terms are defined by those terms; nothing in this Agreement shall restrict,
limit, or otherwise affect any rights or obligations You may have, or
conditions to which You may be subject, under such license terms.
eDirectory™ Software License. The quantity of licenses for the eDirectory software included with Your
lawfully acquired user licenses of the Access Manager Software is equal to the
greater of (1) the quantity of User licenses You have lawfully acquired for the
Access Manager Software, or (2) 250,000 Users per company/entity. If You have licensed the Software on an Instance model, then
You may use an equivalent number of Instance licenses of the eDirectory software, but Your use of eDirectory
software is limited to use only with the Software. The foregoing eDirectory licenses are not upgradeable and are otherwise
subject to the license agreement accompanying the eDirectory
software.
JAVA
Oracle requires that You agree to the
following for Java SE Platform Products. Use of the commercial features for any
commercial or production purpose requires a separate license from Oracle.
"Commercial features" means those features identified in Table 1-1
(Commercial Features in Java SE Product Editions) of the Java SE documentation
accessible at
www.oracle.com/technetwork/java/javase/documentation/index.html
NetIQ Audit 2.0 Software License. Your use of the Audit Software included with
Access Manager is limited to use solely in connection with Access Manager. Any other use of the Audit Software requires
the purchase of the applicable Audit Software licenses.
Staging Software License
Provided that You are
in compliance with the terms of this Agreement, You are authorized to use the
Software in Your internal, non-production environment solely for testing
purposes in a quantity equal to that of Your Instance or User commercial licenses.
Evaluation
Software. If the Software is an evaluation version or
is provided to You for evaluation purposes, then, unless otherwise approved in
writing by an authorized representative of Licensor, Your license to use the
Software is limited solely for internal evaluation purposes in non-production
use and in accordance with the terms of the evaluation offering under which You
received the Software, and expires 90 days from installation (or such other
period as may be indicated within the Software). Upon expiration of the evaluation period, You
must discontinue use of the Software, return to an original state any actions
performed by the Software, and delete the Software entirely from Your system
and You may not download the Software again unless approved in writing by an
authorized representative of Licensor.
The Software may contain an automatic disabling mechanism that prevents
its use after a certain period of time.
RESTRICTIONS
License Restrictions. Licensor reserves all rights not expressly
granted to You.
The Software is licensed for Your internal use
only. Except as this Agreement expressly
allows, You may not (1) copy (except for back-up purposes), modify, alter, create
derivative works, reverse engineer, decompile, or disassemble the Software
except and only to the extent expressly permitted by applicable law; (2) transfer,
assign, pledge, rent, timeshare, host or lease the Software, or sublicense any
of Your license grants or rights under
this Agreement; in whole or in part, without prior written permission of Licensor;
(3) remove any patent, trademark, copyright, trade secret or other proprietary
notices or labels on the Software or its documentation; or (4) disclose the
results of any performance, functional or other evaluation or benchmarking of
the Software to any third party without the prior written permission of Licensor.
Hosting Restrictions. In the event that You desire to have a third
party manage, host (either remotely or virtually) or use the Software on Your
behalf, You shall (1) first enter into a valid and binding agreement with such
third party that contains terms and conditions to protect Licensor’s rights in
the Software that are no less prohibitive and/or restrictive than those
contained in this Agreement, including, without limitation, the Verification
section below; (2) prohibit use by such third party except for the sole benefit
of You; and (3) be solely responsible to Licensor for any and all breaches of
the above terms and conditions by such third party.
Suite Licenses. If Your license to
use the Software is for a suite of products, then for each license only one
user may use the products in the suite.
The suite license does not allow use of individual products in the suite
by multiple users if licensed on a user basis or multiple devices if licensed
on a device or server basis.
Upgrade Software. This section applies to You
if You have purchased the Software based upon upgrade pricing or otherwise
received an upgrade or update to the Software.
“Original Product” means the product from which You
are upgrading. You are authorized to use
the Software only if You are the authorized user of
the Original Product and You may use the Software to replace Your licensed unit
count of the Original Product on a one-for-one basis, not exceeding the
authorized licensed unit count for the Original Software. This Agreement shall replace
and govern any license agreement for the surviving units of Original
Product. This Agreement is specific to
the Software (by product and version) that it accompanies, and You may not
re-allocate Your Software licensed unit count to another product or version
except under express written permission from Licensor.
Maintenance and Support. Licensor has no obligation to provide support
unless You purchase an offering that expressly
includes support services. If You make such a purchase and no separate agreement
specifically applies to the support services, then the terms of this Agreement
will govern the provision of such support services (“Services”). For more information on Licensor's current
support offerings, see https://www.NetIQ.com/support.
OWNERSHIP
No title to or ownership of the Software is
transferred to You.
Licensor and/or its third party licensors retain all right, title and
interest in and to all intellectual property rights in the Software and
Services, including any adaptations or copies thereof. The Software is not sold to You, You acquire
only a conditional license to use the Software.
Title, ownership rights and intellectual property rights in and to the
content accessed through the Software are the property of the applicable
content owner and may be protected by applicable copyright or other law. This Agreement gives You
no rights to such content.
LIMITED
WARRANTY
For ninety (90) days from Your
date of purchase, Licensor warrants that the Software will substantially
conform to its accompanying documentation.
If You report the nonconformity to Licensor
within ninety (90) days from the date of purchase, Licensor will at its sole
discretion either resolve the nonconformity or refund the license fees You paid
for the Software. Any unauthorized use
or modification to the Software voids this warranty. THE FOREGOING WARRANTY IS YOUR SOLE AND
EXCLUSIVE REMEDY AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED. The foregoing warranty does not
apply to Software provided free of charge.
SUCH SOFTWARE IS PROVIDED “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND.
Services. Licensor
warrants that any Services purchased will be supplied in a professional manner
in accordance with generally accepted industry standards. This warranty will be effective for thirty (30)
days following delivery of the Services.
Upon any breach of this warranty, Licensor’s only obligation is to
either correct the Services so that they comply with this warranty or at its
option refund the amount You paid to Licensor for the
portion of the Services that fail to comply with this warranty. You agree to take appropriate measures to
isolate and back up Your systems.
THE SOFTWARE IS NOT DESIGNED, MANUFACTURED OR
INTENDED FOR USE OR DISTRIBUTION WITH ON-LINE CONTROL EQUIPMENT IN HAZARDOUS
ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF
NUCLEAR FACILITIES, AIRCRAFT NAVIGATION, COMMUNICATION, OR CONTROL SYSTEMS,
DIRECT LIFE SUPPORT MACHINES, WEAPONS SYSTEMS, OR OTHER USES IN WHICH FAILURE
OF THE SOFTWARE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE
PHYSICAL OR ENVIRONMENTAL DAMAGE.
Non-Licensor Products. The Software may include or be bundled with
hardware or other software programs or services licensed or sold by an entity
other than Licensor. LICENSOR DOES NOT
WARRANT NON-LICENSOR PRODUCTS OR SERVICES.
ANY SUCH PRODUCTS OR SERVICES ARE PROVIDED ON AN “AS IS” BASIS. WARRANTY SERVICE IF ANY FOR NON-LICENSOR
PRODUCTS IS PROVIDED BY THE PRODUCT LICENSOR IN ACCORDANCE WITH THE APPLICABLE
LICENSOR WARRANTY.
EXCEPT AS OTHERWISE RESTRICTED BY LAW, LICENSOR
DISCLAIMS AND EXCLUDES ANY AND ALL IMPLIED WARRANTIES INCLUDING ANY WARRANTIES
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT
NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE
OR TRADE USAGE. LICENSOR MAKES NO
WARRANTY, REPRESENTATION OR PROMISE NOT EXPRESSLY SET FORTH IN THIS LIMITED
WARRANTY. LICENSOR DOES NOT WARRANT THAT
THE SOFTWARE OR SERVICES WILL SATISFY YOUR REQUIREMENTS, BE COMPATIBLE WITH ALL
OPERATING SYSTEMS, OR THAT THE OPERATION OF THE SOFTWARE OR SERVICES WILL BE
UNINTERRUPTED OR ERROR-FREE. THE
FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT
AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE PRODUCTS. Some jurisdictions do not allow certain
disclaimers and limitations of warranties, so portions of the above limitations
may not apply to You.
This limited warranty gives You specific rights
and You may also have other rights which vary by state or jurisdiction.
LIMITATION
OF LIABILITY
Consequential Losses. NEITHER LICENSOR NOR ANY OF ITS THIRD PARTY LICENSORS,
SUBSIDIARIES, OR EMPLOYEES WILL IN ANY CASE BE LIABLE FOR ANY SPECIAL,
INCIDENTAL, CONSEQUENTIAL, INDIRECT, TORT, ECONOMIC OR PUNITIVE DAMAGES,
WHETHER BASED ON CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER TORT, BREACH
OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, INCLUDING WITHOUT LIMITATION
LOSS OF PROFITS, BUSINESS OR DATA, EVEN IF ADVISED OF THE POSSIBILITY OF THOSE
DAMAGES.
Direct Damages. IN NO EVENT WILL LICENSOR'S AGGREGATE
LIABILITY FOR DIRECT DAMAGES TO PROPERTY OR PERSON (WHETHER IN ONE INSTANCE OR
A SERIES OF INSTANCES) EXCEED 1.25 TIMES THE AMOUNT PAID BY YOU FOR THE
SOFTWARE OR SERVICES OUT OF WHICH SUCH CLAIM AROSE (OR $50 (U.S.) IF YOU
RECEIVED THE SOFTWARE FREE OF CHARGE).
The above exclusions and limitations will not apply to claims relating
to death or personal injury caused by the negligence of Licensor or its
employees, agents or contractors. In
those jurisdictions that do not allow the exclusion or limitation of damages,
including, without limitation, damages for breach of any implied terms as to
title or quiet enjoyment of any Software obtained pursuant to this Agreement or
for fraudulent misrepresentation, Licensor's liability shall be limited or
excluded to the maximum extent allowed within those jurisdictions.
GENERAL TERMS
Term. This Agreement becomes effective on the date You legally acquire the Software and will automatically
terminate if You breach any of its terms.
If the Software is provided to You on a
subscription basis, then Your right to possess or use the Software will
terminate at the end of the applicable subscription period. Upon termination of this Agreement or any
applicable subscription period, You must destroy the
original and all copies of the Software or return them to Licensor and delete
the Software from Your systems.
Verification. Licensor has the right to verify Your
compliance with this Agreement. You agree to:
(1) Implement internal safeguards
to prevent any unauthorized copying, distribution, installation, use of, or
access to, the Software; (2) Keep
records sufficient to certify Your compliance with this Agreement (including
its Product Use Rights Appendix, if any), and, upon request of Licensor,
provide and certify metrics and/or reports based upon such records and account
for both numbers of copies (by product and version) and network architectures
as they may reasonably relate to Your licensing and deployment of the Software;
and (3)
Allow a Licensor representative or an independent auditor
("Auditor") to inspect and audit Your, or Your contractor’s,
computers and records, during Your normal business hours, for compliance with
the licensing terms for Licensor’s software products. Upon Licensor’s and Auditor’s
presentation of their signed written confidentiality statement form to
safeguard Your confidential information, You shall
fully cooperate with such audit and provide any necessary assistance and access
to records and computers. If an audit reveals that You have or at any time have
had unlicensed installation, use of, or access to the Software, You will,
within 30 days, purchase sufficient licenses and associated maintenance to
cover the volume and time period of any shortfall without benefit of any otherwise
applicable discount. If a material
license shortfall of 5% or more is found, You must
reimburse Licensor for the costs incurred in the audit.
Third Party Software/Open Source. Nothing in this Agreement shall restrict,
limit or otherwise affect any rights or obligations You
may have, or conditions to which You may be subject, under any applicable open
source licenses to any open source code contained in the Software. The Software may include or be bundled with
other software programs licensed under different terms and/or licensed by a
licensor other than Licensor. Use of any
software programs accompanied by a separate license agreement is governed by
that separate license agreement. Any
third party software that may be provided with the Software is included for use
at Your option.
Transfer. This
Agreement and the associated licenses purchased for use of the Software may not
be transferred or assigned without the prior written approval of Licensor. Any such attempted transfer or assignment
shall be void and of no effect. Please
contact OrderManagement@netiq.com to request the transfer
of licenses and assignment of this Agreement.
Law. All matters arising out of or relating to the Agreement
will be governed by the substantive laws of the United States and the State of
Utah without regard to its choice of law provisions. Any suit, action or
proceeding arising out of or relating to the Agreement may only be brought
before a federal or state court of appropriate jurisdiction in Utah. If a
party initiates Agreement-related legal proceedings, the prevailing party will
be entitled to recover reasonable attorneys' fees. If, however, Your
country of principal residence is a member state of the European Union or the
European Free Trade Association, (1) the courts of Ireland shall have exclusive
jurisdiction over any action of law relating to this Agreement; and (2) where
the laws of such country of principal residence are required to be applied to
any such action of law the laws of that country shall apply. The application
of the United Nations Convention of Contracts for the International Sale of
Goods is expressly excluded.
Entire Agreement. This Agreement, together with any other
purchase documents or other agreement between You and Licensor, sets forth the
entire understanding and agreement between You and Licensor and may be amended
or modified only by a written agreement agreed to by You and an authorized
representative of Licensor. NO LICENSOR,
DISTRIBUTOR, DEALER, RETAILER, RESELLER, SALES PERSON, OR EMPLOYEE IS
AUTHORIZED TO MODIFY THIS AGREEMENT OR TO MAKE ANY REPRESENTATION OR PROMISE
THAT IS DIFFERENT FROM, OR IN ADDITION TO, THE TERMS OF THIS AGREEMENT.
Waiver. No
waiver of any right under this Agreement will be effective unless in writing,
signed by a duly authorized representative of the party to be bound. No waiver of any past or present right
arising from any breach or failure to perform will be deemed to be a waiver of
any future right arising under this Agreement.
Severability.
If any provision in this Agreement is invalid or unenforceable, that
provision will be construed, limited, modified or, if necessary, severed, to
the extent necessary, to eliminate its invalidity or unenforceability, and the
other provisions of this Agreement will remain unaffected.
Export Compliance. You acknowledge that Licensor’s products
and/or technology are subject to the U.S. Export Administration Regulations
(the “EAR”) and You agree to comply with the EAR. You will not export or re-export Licensor’s products,
directly or indirectly, to: (1) any countries that are subject to US export
restrictions; (2) any end user who You know or have reason to know will utilize
Licensor’s products in the design, development or production of nuclear, chemical
or biological weapons, or rocket systems, space launch vehicles, and sounding
rockets, or unmanned air vehicle systems; or (3) any end user who has been
prohibited from participating in the US export transactions by any federal
agency of the US government. By downloading or using the Software, You are
agreeing to the foregoing and You are representing and
warranting that You are not located in, under the control of, or a national or
resident of any such country or on any such list. In addition, You are responsible for complying with any local laws in
Your jurisdiction which may impact Your right to import, export or use Licensor’s
products. Please consult the Bureau of
Industry and Security web page www.bis.doc.gov before exporting items subject
to the EAR. Upon request, Licensor's International Trade Services Department
can provide information regarding applicable export restrictions for Licensor
products. Licensor assumes no responsibility for Your
failure to obtain any necessary export approvals.
U.S. Government Restricted Rights. Use, duplication, or disclosure of any
Deliverables by the U.S. Government is subject to the restrictions in FAR
52.227-14 (Dec 2007) Alternate III (Dec 2007), FAR 52.227-19 (Dec 2007), or
DFARS 252.227-7013(b)(3) (Nov 1995), or applicable
successor clauses.
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