Spotlight TM Services Agreement

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCEPTING THE RIGHT TO USE THESE SERVICES AND THE ASSOCIATED SOFTWARE ON A TRIAL BASIS. BY USING THESE SERVICES AND USING THE ASSOCIATED SOFTWARE ON A TRIAL BASIS, YOU INDICATE ACCEPTANCE OF AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT USE THESE SERVICES OR THE ASSOCIATED SOFTWARE.

This SpotlightTM Services Agreement (the “Agreement”) is made between Quest Software, Inc., with its principal place of business located at 5 Polaris Way, Aliso Viejo, California, 92656 (“Quest”) and you, the customer (”You”).

Definitions

  1. “Affiliate” means any legal entity controlling, controlled by, or under common control with a party to this Agreement, for so long as such control relationship exists.
  2. “Connection Software” means the Software that You install on Your computers to establish communication with the Trial Software (as defined below).
  3. “Data” means the information You add to, process, or store with the Software.
  4. “Documentation” means the operating and technical instructions made available to You as part of the Software.
  5. “Host” means the computer equipment on which the Trial Software is installed, which is owned and operated by Quest or its subcontractors.
  6. “Registration” means the process by which You obtained the right to the Trial (as defined below).
  7. “Software” means the object code version of any software that is provided to You as part of the Services, including the Trial Software and Connection Software and any Updates to them.
  8. “Trial Software” means the Software which is installed on one or more Hosts and which is made available to You as part of the Trial.
  9. “Support” means the email, and online services provided by Quest in connection with Your use of the Software, as further described in Section 2(c).
  10. “Trial” means the right to use the Services and Software as stated in Section 2 below for the Trial Period for the sole purpose of evaluating the Services and Software in anticipation of a possible purchase of a subscription to the Services.
  11. “Trial Period” means thirty (30) days from the time You agree to the terms of this Agreement.
  12. “Updates” means new versions of the Software.

Services

The Services are available to You during the Trial Period and consist of the following:

  1. Software Usage. You may (i) access, configure, and use the Trial Software solely to evaluate the Services in connection with the management of Your internal business operations; and (ii) install, configure, and use the Connection Software on Your computer equipment to the extent necessary for the Trial.
  2. Data Storage. You may store Data on the Host in connection with Your use of the Software during the Trial Period. Quest may periodically make back-up copies of the Data.
  3. Support and Updates. Quest will respond by email to Your requests regarding software errors and assistance with the installation and use of the Software.

Billing

The Software is provided at no charge.

Warranties

  1. Although Quest will make reasonable efforts for the Software to operate in substantial conformance with the applicable Documentation and to make the Services available to You during the Trial Period, the Services are provides as-is, with no warranties of any kind, express or implied.
  2. ALL WARRANTIES OR REMEDIES ARE EXCLUDED, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT, SATISFACTORY QUALITY, AND ANY WARRANTIES ARISING FROM USAGE OF TRADE OR COURSE OF DEALING OR PERFORMANCE.

Term and Termination

  1. The Agreement will be in effect through the end of the Trial Period and will terminate thereafter.
  2. You may terminate this Agreement at any time for any reason with ten days prior written notice to Quest.
  3. You and Quest may terminate the Agreement for the other party’s material breach of the Agreement which remains uncured for five (5) days following the breaching party’s receipt of written notice of the breach.
  4. At the end of the Trial Period, You must stop using the Services and Software and de-install any Connection Software that may be installed on Your equipment. Upon Your request following a termination of this Agreement, Quest shall return the Data to You. However, Quest shall delete all Your Data thirty (30) days following the effective date of any termination of this Agreement.

Your Obligations

  1. You must use and configure the Software only in a manner consistent with the Documentation and only for evaluation purposes.
  2. You must install Updates to the Connection Software within ten (10) days of receipt of Quest’s written notice of the release of such Updates
  3. You must ensure that only those personnel who are technically competent in the Software contact Quest for Support.
  4. You are solely responsible for collecting, inputting and updating all Data stored on the Host, and for ensuring that the Data does not (i) include anything that actually or potentially infringes or misappropriates the copyright, trade secret, trademark or other intellectual property right of any third party, or (ii) contain anything that is obscene, defamatory, harassing, offensive or malicious.

Restrictions

  1. Except to the extent expressly permitted by applicable law, and to the extent that Quest is not permitted by that applicable law to exclude or limit the following rights, You may not reverse engineer, decompile, disassemble, or attempt to discover or modify in any way the underlying source code of the Software. In addition, You may not (i) modify, translate, localize, adapt, rent, lease, loan, create or prepare derivative works of, or create a patent based on the Software or any part thereof, or (ii) resell the Software or Services or use the Software or Services in any commercial time share arrangement, in connection with the operation of any nuclear facilities, or for purposes which are competitive to Quest.
  2. The rights granted in Section 2 are the only rights granted to You with respect to the Services and Software. Quest reserves any and all rights, implied or otherwise, which are not expressly granted to You. You understand and agree that (i) the Software and Services are protected by copyright and other intellectual property laws and treaties, (ii) Quest and/or its suppliers own the title, copyright, and other intellectual property rights in the Software and Services, (iii) the use of the Software is being provided as a service and the Software is not being sold, and (iv) this Agreement does not grant You any rights to Quest’s trademarks or service marks.

Nondisclosure

“Confidential Information” means information or materials disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) that are not generally available to the public and which, due to their character and nature, a reasonable person under like circumstances would treat as confidential. Confidential Information includes, without limitation, this Agreement, the Software, the Services, personal data, source code, object code, information regarding the functionality and performance of the Software, benchmark test results regarding the Software, Software usage keys, trade secrets, financial information, marketing information, customer information, know-how, proprietary tools, proprietary knowledge or proprietary methodologies. Additionally, Confidential Information shall include “Individually Identifiable Health Information” (as that term is defined in 45 CFR § 164.501) or “Nonpublic Personal Information” (as that term is defined in Title V of the Gramm-Leach-Bliley Act of 1999) that Quest may come into contact with while performing the Activities.

Confidential Information shall not include information or materials that (a) were, as of the effective date of this Agreement generally known to the public; (b) become generally known to the public after the effective date of this Agreement other than as a result of the act or omission of the Receiving Party; (c) were known to the Receiving Party without an obligation of confidentiality prior to that party receiving the same from the Disclosing Party; (d) the Receiving Party lawfully received from a third party without that third party’s breach of agreement or obligation of trust; or (e) are or were independently developed by the Receiving Party without access to or use of the Disclosing Party’s Confidential Information. Additionally, it shall not be a breach of this Section for the Receiving Party to disclose the Confidential Information as may be required by operation of law or legal process, provided that the Receiving Party provides prior notice of such disclosure to the Disclosing Party unless expressly prohibited from doing so by a court, arbitration panel or other legal authority of competent jurisdiction.

The Receiving Party shall not (1) make Confidential Information available to any Affiliates, directors, officers, employees, consultants or representatives (collectively, the “Representatives”) who do not have a “need to know” in order to carry out the purposes of this Agreement; (2) otherwise disclose any Confidential Information to any third party without the written consent of the Disclosing Party; or (3) use Confidential Information for any purpose other than as contemplated by this Agreement. The Receiving Party shall inform its Representatives of the confidential nature of the Confidential Information and the requirements regarding restrictions on disclosure and use as set forth in this Section and shall disclose Confidential Information only to its Representatives who are legally bound to protect the Confidential Information under terms at least as restrictive as those provided herein. The Receiving Party agrees to protect Confidential Information from unauthorized use or disclosure by exercising at least the same degree of care it uses to protect its own similar information, but in no event less than a reasonable degree of care. The Receiving Party shall be liable for any disclosure or other breach in violation of this Agreement by any of its Representatives. The Receiving Party shall promptly notify the Disclosing Party of any known unauthorized use or disclosure of the Confidential Information and will cooperate with the Disclosing Party in any litigation brought by the Disclosing Party against third parties to protect its proprietary rights.

Personal Data

You hereby acknowledge and agree that Quest’s performance of this Agreement may require Quest to process, transmit and/or store Your personal data or the personal data of Your employees and Affiliates. By submitting personal data to Quest, You agree that Quest and its Affiliates may process, transmit and/or store personal data in any of the countries in which Quest and its Affiliates conduct business. You acknowledge that such offices may be located in countries outside of the European Economic Area. Quest agrees that it will transfer personal data only to the extent necessary for, and for the sole purpose of, enabling Quest to perform its obligations to You under this Agreement, and hereby affirms that Quest currently abides by the safe harbor framework as set forth by the U.S. Department of Commerce regarding the collection, use and retention of data from the European Union.

Limitation of Liability

IN NO EVENT WILL Quest OF ITS AFFILIATES, SUBCONTRACTORS, OR ITS LICENSORS, DIRECTORS, OFFICERS, EMPLOYEES OR AFFILIATES BE LIABLE TO YOU WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY DIRECT, 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 THE LIKE), WHETHER FORESEEABLE OR UNFORESEEABLE, OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES, ARISING UNDER THIS AGREEMENT, REGARDLESS OF THE BASIS OF THE CLAIM AND EVEN IF Quest HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

Infringement Claims

Quest will at its own expense defend or settle any claim, suit, action, or proceeding brought against You by a third party to the extent it is based on an allegation that the Software or Services provided hereunder directly infringes any United States patent, copyright, trademark, trade secret or other proprietary right (a “Claim”). Additionally, Quest shall pay any judgments finally awarded against Your under a Claim or any amounts assessed against You in any settlements of a Claim, and Your reasonable administrative costs or expenses, including without limitation reasonable attorneys’ fees that You necessarily incur in responding to the Claim. Quest’s obligations under this Section 11 are conditioned upon You (i) giving prompt written notice of the Claim to Quest; (ii) permitting Quest to retain sole control of the investigation, defense or settlement of the Claim, and (iii) providing Quest with such cooperation and assistance as Quest may reasonably request from time to time in connection with the investigation, defense or settlement of the Claim.

Quest shall have no obligation hereunder to defend You against any Claim (a) resulting from use of the Software or Services other than as authorized in this Agreement, (b) resulting from a modification of the Software or Services other than by Quest, or (c) to the extent the Claim arises from or is based on the use of the Software or Services with other products, services, or data not supplied by Quest if the infringement would not have occurred but for such use. This Section 11 states the entire liability of Quest, and Your sole and exclusive remedy, with respect to a Claim.

Export

The Services and Software are subject to the export control laws, rules, regulations, restrictions and national security controls of the United States and other applicable foreign agencies (the "Export Controls"). You hereby agree that Your use of the Services and the Software will comply with the Export Controls at all times during the Term.

Assignment

You shall not assign this Agreement (by operation of law or otherwise) without prior written consent of Quest and any purported attempt to do so will be null and void.

General

  1. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any conflict of laws principles that would require the application of laws of a different state. The parties agree that neither the United Nations Convention on Contracts for the International Sale of Goods, nor the Uniform Computer Information Transaction Act (UCITA) shall apply to this Agreement, regardless of the states in which the parties do business or are incorporated. Any action seeking enforcement of this Agreement or any provision hereof shall be brought exclusively in the state or federal courts located in the County of Orange, State of California, United States of America. Each party hereby agrees to submit to the jurisdiction of such courts.
  2. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, such provision will be enforced to the maximum extent permissible and the remaining provisions of this Agreement will remain in full force and effect. Notwithstanding the foregoing, the terms of this Agreement that limit, disclaim, or exclude warranties, remedies or damages are intended by the parties to be independent and remain in effect despite the failure or unenforceability of an agreed remedy. The parties have relied on the limitations and exclusions set forth in this Agreement in determining whether to enter into it.
  3. All notices, requests, demands or communications required or permitted hereunder, including but not limited to billing contact information, shall be in writing, delivered personally, sent by facsimile or e-mail, or mailed by first class mail, postage prepaid, addressed to the legal department of the respective party or to such other address as shall be specified in writing by either of the parties to the other in accordance with this Section. All notices, requests, demands or communications shall be deemed effective upon personal delivery or four (4) days following deposit in the U.S. mail in accordance with this paragraph.
  4. Quest may include You in its listing of customers and, upon Your written consent, announce Your selection of Quest in its marketing communications.
  5. Performance of any obligation required by a party hereunder may be waived only by a written waiver signed by an authorized representative of the other party, which waiver shall be effective only with respect to the specific obligation described therein. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
  6. Each party acknowledges and agrees that in the event of a material breach of this Agreement, the non-breaching party shall be entitled to seek immediate injunctive relief, without limiting its other rights and remedies.
  7. Each party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, acts of war, epidemics, communication line failures, and power failures. Nothing in the foregoing shall be deemed to relieve You of Your obligation to pay fees owed under this Agreement.
  8. Quest Inc. is a federal contractor and Affirmative Action employer (M/F/D/V) as required by the Equal Opportunity clause C.F.R. § 60-741.5(a).
  9. Headings in this Agreement are for convenience only and do not affect the meaning or interpretation of this Agreement. This Agreement will not be construed either in favor of or against one party or the other, but rather in accordance with its fair meaning. When the term “including” is used in this Agreement it will be construed in each case to mean “including, but not limited to.”
  10. Quest shall, at its own expense, comply with all federal and state laws, and statutes and regulations applicable to businesses which provide onsite consulting and training services for commercial software products.
  11. Each party is acting as an independent contractor under this Agreement and nothing contained herein shall be construed to create or imply any agency, joint venture, partnership, principal-agent or employment relationship between the parties. Neither party's employees, agents, or consultants will be considered under any circumstances to be employees, agents or consultants of the other party.

This Agreement and the applicable Registration contains the entire agreement between the parties regarding the subject matter hereof and supersedes any and all other agreements and communications, written or oral, expressed or implied.

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