COMM-LICENSE

END-USER LICENSE AGREEMENT

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IMPORTANT: THIS SOFTWARE END-USER LICENSE AGREEMENT ("EULA") IS A LEGAL AGREEMENT (“Agreement”) BETWEEN YOU (THE CUSTOMER, EITHER AS AN INDIVIDUAL OR, IF PURCHASED OR OTHERWISE ACQUIRED BY OR FOR AN ENTITY, AS AN ENTITY) AND GoReplay LLC. READ IT CAREFULLY BEFORE COMPLETING THE INSTALLATION PROCESS AND USING GOREPLAY PRO AND RELATED SOFTWARE COMPONENTS (“SOFTWARE”). IT PROVIDES A LICENSE TO USE THE SOFTWARE AND CONTAINS WARRANTY INFORMATION AND LIABILITY DISCLAIMERS. BY INSTALLING AND USING THE SOFTWARE, YOU ARE CONFIRMING YOUR ACCEPTANCE OF THE SOFTWARE AND AGREEING TO BECOME BOUND BY THE TERMS OF THIS AGREEMENT.

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In order to use the Software under this Agreement, you must receive a “Source URL” at the time of purchase, in accordance with the scope of use and other terms specified for each type of Software and as set forth in this Section 1 of this Agreement. 

1. License Grant

1.1 General Use. This Agreement grants you a non-exclusive, non-transferable, limited license to the use rights for the Software, without the right to grant sublicenses, subject to the terms and conditions in this Agreement. The Software is licensed, not sold.

1.2 Unlimited Organization License. If you purchased an Organization License (included with the GoReplay Pro Software), you may install the Software on an unlimited number of Hosts. “Host” means any physical or virtual machine which is controlled by you. You may concurrently run the software on an unlimited number of Hosts.

1.3 Appliance License. If you purchased an Appliance License, you may distribute the Software in any applications, frameworks, or elements (collectively referred to as an “Application” or “Applications”) that you develop using the Software in accordance with this EULA, provided that such distribution does not violate the restrictions set forth in section 3 of this EULA. You must not remove, obscure or interfere with any copyright, acknowledgment, attribution, trademark, warning or disclaimer statement affixed to, incorporated in or otherwise applied in connection with the Software. You are required to ensure that the Software is not reused by or with any applications other than those with which you distribute it as permitted herein. For example, if You install the Software on a customer’s server, that customer is not permitted to use the Software independently of your Application. You must inform GoReplay LLC of your knowledge of any infringing use of the Software by any of your customers. You are liable for compliance by those third parties with the terms and conditions of this EULA. You will not owe GoReplay LLC any royalties for your distribution of the Software in accordance with this EULA.

1.4 Archive Copies. You are entitled to make a reasonable amount of copies of the Software for archival purposes. Each copy must reproduce all copyright and other proprietary rights notices on or in the Software Product.

1.5 Electronic Delivery. All Software and license documentation shall be delivered by electronic means unless otherwise specified on the applicable invoice or at the time of purchase. Software shall be deemed delivered when it is made available for download by you (“Delivery”).        

2. Modifications. GoReplay LLC shall provide you with source code so that you can create Modifications of the original software. “Modification” means: (a) any addition to or deletion from the contents of a file included in the original Software or previous Modifications created by You, or (b) any new file that contains any part of the original Software or previous Modifications. While you retain all rights to any original work authored by you as part of the Modifications, We continue to own all copyright and other intellectual property rights in the Software.

3. Restricted Uses. 

3.1 You shall not (and shall not allow any third party to): (a) decompile, disassemble, or otherwise reverse engineer the Software or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Software by any means whatsoever (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions); (b) distribute, sell, sublicense, rent, lease or use the Software for time sharing, hosting, service provider or like purposes, except as expressly permitted under this Agreement; (c) redistribute the Software or Modifications other than by including the Software or a portion thereof within your own product, which must have substantially different functionality than the Software or Modifications and must not allow any third party to use the Software or Modifications, or any portions thereof, for software development or application development purposes; (d) redistribute the Software as part of a product, "appliance" or "virtual server"; (e) redistribute the Software on any server which is not directly under your control; (f) remove any product identification, proprietary, copyright or other notices contained in the Software; (g) modify any part of the Software, create a derivative work of any part of the Software (except as permitted in Section 4), or incorporate the Software, except to the extent expressly authorized in writing by GoReplay LLC; (h) publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Software; (i) utilize any equipment, device, software, or other means designed to circumvent or remove any form of Source URL or copy protection used by GoReplay LLC in connection with the Software, or use the Software together with any authorization code, Source URL, serial number, or other copy protection device not supplied by GoReplay LLC; (j) use the Software to develop a product which is competitive with any GoReplay LLC product offerings; or (k) use unauthorized Source URLS or keycode(s) or distribute or publish Source URLs or keycode(s), except as may be expressly permitted by GoReplay LLC in writing. If your unique Source URL is ever published, GoReplay LLC reserves the right to terminate your access without notice.

3.2 UNDER NO CIRCUMSTANCES MAY YOU USE THE SOFTWARE AS PART OF A PRODUCT OR SERVICE THAT PROVIDES SIMILAR FUNCTIONALITY TO THE SOFTWARE ITSELF.

The Open Source version of the Software (“LGPL Version”) is licensed
under the terms of the GNU Lesser General Public License versions 3.0
(“LGPL”) and not under this EULA. 

4. Ownership. Notwithstanding anything to the contrary contained herein, except for the limited license rights expressly provided herein, GoReplay LLC and its suppliers have and will retain all rights, title and interest (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Software and all copies, modifications and derivative works thereof (including any changes which incorporate any of your ideas, feedback or suggestions). You acknowledge that you are obtaining only a limited license right to the Software, and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights are being conveyed to you under this Agreement or otherwise. 

5. Fees and Payment. The Software license fees will be due and payable in full as set forth in the applicable invoice or at the time of purchase. If the Software does not function properly within two weeks of purchase, please contact us within those two weeks for a refund. You shall be responsible for all taxes, withholdings, duties and levies arising from the order (excluding taxes based on the net income of GoReplay LLC). 

6. Support, Maintenance and Services. Subject to the terms and conditions of this Agreement, as set forth in your invoice, and as set forth on the GoReplay Pro support page (https://github.com/buger/goreplay/wiki/Pro-Support), support and maintenance services may be included with the purchase of your license subscription.

7. Term of Agreement. 

7.1 Term. This Agreement is effective as of the Delivery of the Software and expires at such time as all license and service subscriptions hereunder have expired in accordance with their own terms (the “Term”). For clarification, the term of your license under this Agreement may be perpetual, limited for Evaluation Version, or designated as a fixed-term license in the Invoice, and shall be specified at your time of purchase. Either party may terminate this Agreement (including all related Invoices) if the other party: (a) fails to cure any material breach of this Agreement within thirty (30) days after written notice of such breach, provided that GoReplay LLC may terminate this Agreement immediately upon any breach of Section 3 or if you exceed any other restrictions contained in Section 1, unless otherwise specified in this agreement; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days)). Termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.        

7.2 Termination. Upon any termination of this Agreement, you shall cease any and all use of any Software and destroy all copies thereof. 

7.3 Expiration of License. Upon the expiration of any term under this Agreement, (a) all Software updates and services pursuant to the license shall cease, (b) you may only continue to run existing installations of the Software, (c) you may not install the Software on any additional Hosts, and (d) any new installation of the Software shall require the purchase of a new license subscription from GoReplay LLC.

8. Disclaimer of Warranties. The Software is provided "as is," with all faults, defects and errors, and without warranty of any kind. GoReplay LLC does not warrant that the Software will be free of bugs, errors, viruses or other defects, and GoReplay LLC shall have no liability of any kind for the use of or inability to use the Software, the Software content or any associated service, and you acknowledge that it is not technically practicable for GoReplay LLC to do so. 
To the maximum extent permitted by applicable law, GoReplay LLC disclaims all warranties, express, implied, arising by law or otherwise, regarding the Software, the Software content and their respective performance or suitability for your intended use, including without limitation any implied warranty of merchantability, fitness for a particular purpose.
Notwithstanding the foregoing, GoReplay LLC represents and warrants that it either owns the entire right to, title to, interest in, or has the right to license, the Software, and your proper use of the same will not violate any intellectual property or proprietary rights of another.

9. Limitation of Liability. 

In no event will either party be liable for any direct, indirect, consequential, incidental, special, exemplary, or punitive damages or liabilities whatsoever arising from or relating to the Software, the Software content or this Agreement, whether based on contract, tort (including negligence), strict liability or other theory, even if such party has been advised of the possibility of such damages.

In no event will GoReplay LLC liability exceed the Software license price as indicated in the invoice. The existence of more than one claim will not enlarge or extend this limit.

10. Remedies. Your exclusive remedy and GoReplay LLC’ entire liability for breach of this Agreement shall be limited, at GoReplay LLC’ sole and exclusive discretion, to (a) replacement of any defective software or documentation; or (b) refund of the license fee paid to GoReplay LLC, payable in accordance with GoReplay LLC' refund policy.

11. Acknowledgements.

11.1 Consent to the Use of Data. You agree that GoReplay LLC and its affiliates may collect and use technical information gathered as part of the product support services to be used in an anonymized manner. GoReplay LLC may use this information solely to improve products and services and will not disclose this information in a form that personally identifies you.

11.2 Verification. We or a certified auditor acting on our behalf, may, upon its reasonable request and at its expense, audit you with respect to the use of the Software, subject to your reasonable information security and confidentiality protections. Such audit may be conducted by mail, electronic means or through an in-person visit to your place of business. Any such in-person audit shall be conducted during regular business hours at your facilities and shall not unreasonably interfere with your business activities. We shall not remove, copy, or redistribute any electronic material during the course of an audit. If an audit reveals that you are using the Software in a way that is in material violation of the terms of the EULA, then you shall pay our reasonable costs of conducting the audit. In the case of a material violation, you agree to pay Us any amounts owing that are attributable to the unauthorized use. In the alternative, We reserve the right, at our sole option, to terminate the licenses for the Software.

11.3 Government End Users. If the Software and related documentation are supplied to or purchased by or on behalf of the United States Government, then the Software is deemed to be "commercial software" as that term is used in the Federal Acquisition Regulation system. Rights of the United States shall not exceed the minimum rights set forth in FAR 52.227-19 for "restricted computer software". All other terms and conditions of this Agreement apply.

12. Third Party Software.  Examples included in Software may provide links to third party libraries or code (collectively “Third Party Software”) to implement various functions. Third Party Software does not comprise part of the Software. In some cases, access to Third Party Software may be included along with the Software delivery as a convenience for demonstration purposes. Such source code and libraries may be included in the “…/examples” source tree delivered with the Software and do not comprise the Software. Licensee acknowledges (1) that some part of Third Party Software may require additional licensing of copyright and patents from the owners of such, and (2) that distribution of any of the Software referencing or including any portion of a Third Party Software may require appropriate licensing from such third parties.


13. Miscellaneous

13.1 Entire Agreement. This Agreement sets forth our entire agreement with respect to the Software and the subject matter hereof and supersedes all prior and contemporaneous understandings and agreements whether written or oral.

13.2 Amendment. GoReplay LLC reserves the right, in its sole discretion, to amend this Agreement from time. Amendments to this Agreement can be located at: https://github.com/buger/goreplay/blob/master/COMM-LICENSE.

13.3 Assignment. You may not assign this Agreement or any of its rights under this Agreement without the prior written consent of GoReplay LLC and any attempted assignment without such consent shall be void.

13.4 Export Compliance. Each party agrees to comply with all applicable laws and regulations, including laws, regulations, orders or other restrictions on export, re-export or redistribution of software.

13.5 Indemnification. You agree to defend, indemnify, and hold harmless GoReplay LLC from and against any lawsuits, claims, losses, damages, fines and expenses (including attorneys' fees and costs) arising out of your use of the Software or breach of this Agreement.

13.6 Governing Law. This Agreement is governed by the laws of the State of Oregon and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act, as currently enacted by any jurisdiction or as may be codified or amended from time to time by any jurisdiction. The jurisdiction and venue for actions related to the subject matter hereof shall be the state of Oregon and United States federal courts located in Portland, Oregon, and both parties hereby submit to the personal jurisdiction of such courts. 

13.7 Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action. 

13.8 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the remainder of this Agreement will remain in full force and effect.

13.9 Waiver. Failure or neglect by either party to enforce at any time any of the provisions of this licence Agreement shall not be construed or deemed to be a waiver of that party's rights under this Agreement.

13.10 Headings. The headings of sections and paragraphs of this Agreement are for convenience of reference only and are not intended to restrict, affect or be of any weight in the interpretation or construction of the provisions of such sections or paragraphs.

14. Contact Information. If you have any questions about this EULA, or if you want to contact GoReplay LLC for any reason, please direct correspondence to info@gortool.com