PLEASE READ THIS SOFTWARE LICENSE AGREEMENT CAREFULLY BEFORE DOWNLOADING, INSTALLING OR USING QACAFE OR QACAFE-SUPPLIED SOFTWARE.
BY DOWNLOADING OR INSTALLING THE SOFTWARE YOU ARE CONSENTING TO BE BOUND BY THIS LICENSE. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS LICENSE, THEN DO NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE.
The following terms govern your use of the Software except to the extent a particular program (a) is the subject of a separate written agreement with QA Cafe or (b) includes a separate “click-on” 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 written agreement, (2) the click-on agreement, and (3) this Software License.
License. Subject to the terms and conditions of and except as otherwise provided in this Agreement, QA Cafe and its suppliers grant to Customer (“Customer”) a nonexclusive and nontransferable license to use a single instance of CloudShark for which Customer has paid the required license fees (the “Software”) for internal business purposes only. In addition, the foregoing license shall also be subject to the following limitations, as applicable:
Customer’s use of the Software shall be limited to use on a single instance or use on such greater number of instances as Customer may have paid QA Cafe the required license fee. Only a single instance of Software may be executing on a single computer at a time. Multiple instances of the Software on a single computer require additional licenses for each instance. CloudShark Enterprise licenses are either perpetual or subscription based. Subscription based licenses require ongoing recurring subscription payments, otherwise the software may become inactive.
NOTE: For demo copies for which QA Cafe does not charge a license fee, the above requirement to pay a license fee does not apply.
General Limitations. 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 use the Software on unauthorized systems, and any such attempted transfer, assignment or sublicense shall be void;
(ii) decompile, decrypt, reverse engineer, or disassemble the Software to gain access to trade secrets or confidential information in the Software.
(iii) make copies of the Software, except as permitted in this agreement.
Upgrades and Additional Copies. For purposes of this Agreement, “Software” shall include (and the terms and conditions of this Agreement shall apply to) any upgrades, updates, bug fixes or modified versions (collectively, “Upgrades”) or backup copies of the Software licensed or provided to Customer by QA Cafe or an authorized distributor for which Customer has paid the applicable license fees. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT: (1) CUSTOMER HAS NO LICENSE OR RIGHT TO USE ANY SUCH ADDITIONAL COPIES OR UPGRADES 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; (2) USE OF UPGRADES IS LIMITED TO QA CAFE SOFTWARE 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) USE OF ADDITIONAL COPIES IS LIMITED TO 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 or any Software without the prior written permission of QA Cafe. Customer may make such backup copies of the Software as may be necessary for Customer’s lawful use, provided Customer affixes to such copies all copyright, confidentiality, and proprietary notices that appear on the original.
Protection of Information. Customer agrees that aspects of the Software and associated documentation, including the specific design and structure of individual programs, constitute trade secrets and/or copyrighted material of QA Cafe. Customer shall not disclose, provide, or otherwise make available such trade secrets or copyrighted material in any form to any third party without the prior written consent of QA Cafe. Customer shall implement reasonable security measures to protect such trade secrets and copyrighted material. Title to Software and documentation shall remain solely with QA Cafe.
Term and Termination. This License is effective until terminated or until the applicable license or subscription term. Customer may terminate this License at any time by destroying all copies of Software including any documentation. Customer’s rights under this License will terminate immediately without notice from QA Cafe if Customer fails to comply with any provision of this License. Upon termination, Customer must destroy all copies of Software in its possession or control.
Export. Software, including technical data, may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Customer agrees to comply strictly with all such regulations and acknowledges that it has the responsibility to obtain licenses to export, re-export, or import Software.
Limited Warranty. The warranty applies to the Software, the use of which is hereby licensed. QA Cafe warrants for one year from the date of delivery that the media on which the Software is supplied will be free from any defects described in the Documentation, when used on the supported hardware and system software listed on this Software package, provided such hardware and system software is in good working order.
If you use this Software on anything but the supported hardware and system software, you do so at your own risk. QA Cafe does not give any warranty (express or implied) that the Software will work under those conditions.
EXCEPT FOR THE PRIOR EXPRESS LIMITED WARRANTIES, QA CAFE MAKES, AND YOU RECEIVE, NO WARRANTIES, EXPRESS, IMPLIED STATUTORY OR IN ANY COMMUNICATION WITH YOU AND COMPANY SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. QA CAFE DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE.
Some states do not allow the exclusion of implied warranties so the above exclusion may not apply to you. This warranty gives you specific legal rights. You may also have other rights which vary from state to state.
Restrictions. This warranty does not apply if the Product (a) has been altered, except by QA Cafe, (b) has not been installed, operated, repaired, or maintained in accordance with instructions supplied by QA Cafe, (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 QA Cafe does not receive a payment of 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, NONINFRINGEMENT, SATISFACTORY QUALITY OR ARISING FROM A COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE WARRANTY PERIOD. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU 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.
LIMITATION OF LIABILITY
IN NO EVENT WILL QA CAFE BE LIABLE FOR ANY DAMAGES, INCLUDING LOSS OF DATA, LOST PROFITS, COST OF COVER OR OTHER SPECIAL INCIDENTAL CONSEQUENTIAL OR INDIRECT DAMAGES ARISING FROM THE USE OF THE SOFTWARE OR ACCOMPANYING DOCUMENTATION, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY. THIS LIMITATION WILL APPLY EVEN IF COMPANY OR ANY AUTHORIZED DEALER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. YOU ACKNOWLEDGE THAT THE LICENSE FEE REFLECTS THIS ALLOCATION OF RISK. SOME STATES DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
If Customer has entered into a contract directly with QA Cafe for supply of the Products subject to this warranty, the terms of that contract shall supersede any terms of this Warranty or the Software License, which are inconsistent with that contract.