Foglight Network Management System 6.0.20375

EULA - End User License Agreement

The following terms (the “Freeware Terms”) shall apply to Customer''s use of the freeware version of Foglight Network Management System (the “Freeware”). The terms outlined herein shall supersede any conflicting terms set forth in the agreement that is delivered with the Freeware (the “Agreement”). Capitalized terms not defined herein shall have the same meaning as those set forth in the Agreement.

Freeware License. Subject to the term and conditions of the Agreement and these Freeware Terms, Quest hereby grants to Customer, and Customer hereby accepts from Quest, a non-exclusive and non-transferable license to use the Freeware, in executable object code form only, for personal or internal business purposes only, for the duration specified by Quest. Quest may change the scope of use restrictions set forth herein at any time in its sole discretion.

Freeware Restrictions. The following restrictions shall apply to Customer''s use of the Freeware:

1. Only one individual in a given company is permitted to download of the Freeware. In the event the Freeware is downloaded by more than one individual in a company, each additional download may be subject to a license fee to be charged by Quest. By downloading the Freeware, Customer acknowledges and agrees that it has taken steps to ensure that the Freeware has not been previously downloaded by another individual in its company and/or agrees to pay the license fee that may be charged for an additional download of the Freeware.

2. Customer may use the Freeware at no cost to monitor up to 100 Devices. This number may be modified by Quest at any time in its sole discretion. For purposes of these Freeware Terms, a “Device” shall be defined as any asset or object (physical or virtual) attached to a network that has at least one IP address.

3. Customer may use the Freeware at no cost for up to 60 days after installation. This period may be modified by Quest at any time in its sole discretion. At the end of this period, Customer must contact Quest via phone or email to discuss options for continuing use of the Freeware. In the event the Freeware usage period is not extended, Customer must discontinue use of the Freeware and remove it from its systems.

4. Customer is not eligible to receive no cost updates, upgrades, corrections, enhancements, or new features for the Freeware (collectively, “Updates"). In the event Quest develops Updates, Quest reserves the right to charge a fee for such Updates at its sole discretion.

5. Technical support for the Freeware is only available via the Foglight NMS online community located at http://communities.quest.com/community/foglight/nms.

Collection of Information. Customer is hereby notified that the Freeware will collect certain information from the Customer and transmit such information back to Quest. Such information may include, without limitation, the number of Devices being monitored, statistics relating to how often the Freeware and tools are started and completed, the duration of use of the Freeware, performance metrics relating to the Freeware, and Freeware configuration settings. In addition, Customer is hereby notified that (1) the Freeware may require a registration process whereby machine specific identifiers (that have been encrypted and are unique but anonymous) such as the username and email address for the user are transmitted to Quest''s licensing server to allow Quest to generate a unique key that is bound to the specific computer on which the Freeware may be used, (2) the Freeware may communicate with Quest''s patching server and allow Customer to download patches when they are available, (3) the Freeware may provide a ‘Feedback'' facility that allows Customer to send suggestions and ideas for improving the Freeware, (4) the Freeware may include a mechanism to transmit information to Quest regarding unhandled exceptions, and (5) the Freeware may make connections to Quest servers to verify license validity. By using the Freeware, Customer hereby consents to the collection of such information by the Freeware, the transmission of such information to Quest, and the use of such information by Quest for any internal business purpose without restriction.

Disclaimer of Warranty. THE FREEWARE IS PROVIDED FREE ON AN "AS IS" AND UNSUPPORTED BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES THAT IT IS FREE OF DEFECTS, VIRUS FREE, ABLE TO OPERATE ON AN UNINTERRUPTED BASIS, MERCHANTABLE, FIT FOR A PARTICULAR PURPOSE OR NON-INFRINGING. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THE AGREEMENT. NO USE OF THE FREEWARE IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.

Fees and Taxes. There is no fee for Customer''s use of the Freeware in accordance with the Agreement, however, Customer is responsible for any applicable shipping charges or taxes which may be incurred under the Agreement, and any fees which may be associated with usage beyond the scope permitted herein.

Limitation of Liability and Damages. IN NO EVENT WILL QUEST, ITS SUBSIDIARIES OR ANY OF THE LICENSORS, DIRECTORS, OFFICERS, EMPLOYEES OR AFFILIATES OF ANY OF THE FOREGOING BE LIABLE TO CUSTOMER UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND DATA AND THE LIKE), WHETHER FORESEEABLE OR UNFORESEEABLE, OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES, REGARDLESS OF THE BASIS OF THE CLAIM AND EVEN IF QUEST OR A QUEST REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. QUEST''S CUMULATIVE LIABILITY FOR DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO $50.00.