License Agreement

Nuts About Nets, LLC

NetStress Network Benchmarking Software
END USER LICENSE AGREEMENT

Except where otherwise noted, all of the documentation and software included in the NetStress package is copyrighted by Nuts About Nets, LLC.

IMPORTANT-READ CAREFULLY:
This Nuts About Nets, LLC End-User License Agreement ("EULA") is a legal agreement between you (either an individual or a single entity) and Nuts About Nets, LLC for the NetStress Network Benchmarking software product identified above, which includes computer software and may include associated media, printed materials, additional computer software applications, and "online" or electronic documentation ("SOFTWARE PRODUCT").

By downloading, installing, copying, running, executing, or otherwise using any portion of the SOFTWARE PRODUCT, you agree to be bound by the terms of this EULA. If you do not agree to be bound to the terms of this EULA, then please do not download, install, accept (for example, and not by way of limitation, by checking the "I DO NOT ACCEPT" box in connection with this EULA at the beginning of the software download, installation, and/or initial execution process), or permit others to download, install, copy, run, execute, or otherwise use the SOFTWARE PRODUCT.

SOFTWARE PRODUCT LICENSE

The SOFTWARE PRODUCT is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The SOFTWARE PRODUCT is licensed, not sold.

1. GRANT OF LICENSE. This EULA grants you the following rights:

a. SOFTWARE PRODUCT. You may install and use an unlimited number of copies of the SOFTWARE PRODUCT on computers, including workstations, terminals or other digital electronic devices ("COMPUTERS"), provided the software is used with a wireless network adapter provided to you by Nuts About Nets, LLC.

b. No Sale. You acknowledge and agree that this copy of the SOFTWARE PRODUCT has been licensed to you pursuant to the terms and conditions of this EULA and that such copy of the SOFTWARE PRODUCT has not been sold to you. In addition, you acknowledge that this copy of the SOFTWARE PRODUCT is not subject to the "first sale" doctrine as that term is defined in United States Copyright laws.

c. Restrictions. You agree (i) not to copy, transfer, assign, rent, resell, distribute or use the SOFTWARE PRODUCT other than as expressly authorized in this EULA, (ii) not to remove any copyright notice, trademark notice, and/or other proprietary legend or indication of confidentiality set forth on or contained in the SOFTWARE PRODUCT, and (iii) to refrain from using the SOFTWARE PRODUCT for any other purpose other than as expressly authorized in this EULA.

2. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS.

a. Limitations on Reverse Engineering, Decompilation, and Disassembly. You may not reverse engineer, decompile, recompile, precompile, disassemble, hack, port, or otherwise attempt to discover the source code to the SOFTWARE PRODUCT.

b. Support Services. Nuts About Nets, LLC may provide you with support services related to the SOFTWARE PRODUCT ("Support Services"). Any supplemental software code provided to you as part of the Support Services shall be considered part of the SOFTWARE PRODUCT and subject to the terms and conditions of this EULA.

c. Software Transfer. You may permanently transfer all of your rights under this EULA, provided you retain no copies, you transfer all of the SOFTWARE PRODUCT (including all component parts, the media and printed materials, any upgrades, and this EULA) and the recipient agrees to the terms of this EULA. If the SOFTWARE PRODUCT is an upgrade, any transfer must include all prior versions of the SOFTWARE PRODUCT.

d. Termination. Without prejudice to any other rights, Nuts About Nets, LLC may terminate this EULA if you fail to comply with the terms and conditions of this EULA. In such event, you must destroy all copies of the SOFTWARE PRODUCT and all of its component parts.

3. INTELLECTUAL PROPERTY RIGHTS.

All title and intellectual property rights in and to the SOFTWARE PRODUCT, and any copies you are permitted to make herein are owned by Nuts About Nets, LLC. Furthermore, you agree that Nuts About Nets, LLC owns all right, title, interest, and intellectual property rights in and to the SOFTWARE PRODUCT and in all patents, trademarks, trade names, inventions, copyrights, know how and trade secrets, and any related applications or extensions, relating to the design, manufacture, operation or service of the SOFTWARE PRODUCT.

4. EXPORT RESTRICTIONS.

You acknowledge that the SOFTWARE PRODUCT is subject to United States export jurisdiction. You agree to comply with all applicable international and national laws that apply to the Software Product and/or to the export of technical data, including the United States Export Administration Regulations, as well as end-user, end-use, and destination restrictions issued by the United States and other governments. You agree that you will not export or re-export the SOFTWARE PRODUCT (or portions thereof) to any country, person or entity subject to U.S. export restrictions. You specifically agree not to export or re-export the SOFTWARE PRODUCT (or portions thereof): (i) to any country subject to a U.S. embargo or trade restriction; (ii) to any person or entity who you know or have reason to know will utilize the SOFTWARE PRODUCT (or portion thereof) in the production of nuclear, chemical or biological weapons; or (iii) to any person or entity who has been denied export privileges by the U.S. government.

5. DISCLAIMER OF WARRANTIES.

To the maximum extent permitted by applicable law, Nuts About Nets, LLC and its suppliers provide the SOFTWARE PRODUCT and any (if any) Support Services "AS IS AND WITH ALL FAULTS", and hereby disclaim all warranties and conditions, either express, implied or statutory, including, but not limited to, any (if any) implied warranties or conditions of merchantability, of fitness for a particular purpose, of non-infringement, of lack of viruses, of accuracy or completeness of responses, of results, of ability to achieve a particular result, of ability to execute uninterrupted or error-free, and of lack of negligence or lack of workmanlike effort, all with regard to the SOFTWARE PRODUCT, and the provision of or failure to provide Support Services. THE ENTIRE RISK AS TO THE QUALITY OF OR ARISING OUT OF USE OR PERFORMANCE OF THE SOFTWARE PRODUCT AND SUPPORT SERVICES, IF ANY, REMAINS WITH YOU.

Specifically, and without limiting the foregoing, you acknowledge that Nuts About Nets, LLC has not made any representations or warranties with respect to the SOFTWARE PRODUCT or the functionality thereof and has made no representations or warranties with respect thereto. In addition, you acknowledge that you have selected the SOFTWARE PRODUCT, and that Nuts About Nets, LLC makes no representations or warranties with respect to the fitness of the SOFTWARE PRODUCT for any purpose.

6. NO SUPPORT

Nothing in this EULA shall obligate Nuts About Nets, LLC to provide any support for the SOFTWARE PRODUCT. Nuts About Nets, LLC may, but shall be under no obligation to, correct any defects in the SOFTWARE PRODUCT and/or provide updates to You of the SOFTWARE PRODUCT. You shall promptly report to Nuts About Nets, LLC any defects You find in the SOFTWARE PRODUCT to aid Nuts About Nets, LLC in creating improved revisions of such items.

7. EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES.

To the maximum extent permitted by applicable law, in no event shall Nuts About Nets, LLC or its suppliers be liable under any theory of liability for any special, incidental, indirect, or consequential damages whatsoever (including, but not limited to, damages for loss of profits or confidential or other information, for business interruption, for personal injury, for loss of privacy, for failure to meet any duty including of good faith or of reasonable care, for negligence, and for any other pecuniary or other loss whatsoever) arising out of or in any way related to the use of or inability to use the SOFTWARE PRODUCT, the provision of or failure to provide support services, or otherwise under or in connection with any provision of this EULA, even in the event of the fault, tort (including negligence), strict liability, breach of contract or breach of warranty of Nuts About Nets, LLC or any supplier, and even if Nuts About Nets, LLC or any supplier has been advised or should know of the possibility of such damages.

8. LIMITATION OF LIABILITY AND REMEDIES.

Notwithstanding anything to the contrary contained in this EULA, and without limiting any other rights, remedies, limitations, or restrictions in this EULA or under law, Nuts About Nets, LLC will not be liable with respect to any subject matter of this EULA under any contract, negligence, strict liability, or other theory, at law or in equity, for any amounts aggregating in excess of amounts paid to it under this agreement in the twelve (12) month period before the cause of action arose.

9. INDEMNITY

You hereby agree to indemnify, protect, defend and hold Nuts About Nets, LLC harmless from and against any and all claims, losses and damages, including without limitation, reasonable attorneys' and experts' fees and disbursements, (a) which may at any time be asserted against Nuts About Nets, LLC by any party for Your failure to perform any of the covenants, agreements, terms, provisions or conditions contained in this EULA, (b) by any party by reason of Your use or misuse of the SOFTWARE PRODUCT, or (c) resulting from any failure by You to comply with any term or condition of this EULA. The provisions of this Section 10 shall survive the expiration or earlier termination of the EULA.

10. ENTIRE AGREEMENT.

This EULA (including any addendum or amendment to this EULA which is included with the SOFTWARE PRODUCT) is the entire agreement between you and Nuts About Nets, LLC relating to the SOFTWARE PRODUCT and the Support Services (if any or many) and it supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the SOFTWARE PRODUCT or any other subject matter covered by this EULA. To the extent the terms of any Nuts About Nets, LLC policies or programs for Support Services conflict with the terms of this EULA, the terms of this EULA shall control.

If any provision of this EULA shall be or become invalid, illegal, or unenforceable in any respect, the validity, legality, and enforce-ability of the remaining provisions contained herein shall not be affected thereby. No failure or delay in exercising any right or remedy shall operate as a waiver of any such (or any other) right or remedy. Any modification or waiver to this EULA must be in writing and signed by both parties. The language of this EULA shall be construed as a whole, according to its fair meaning and intent, and not strictly for or against either party, regardless of who drafted or was principally responsible for drafting this EULA or any specific term or conditions hereof.

Nothing in this EULA shall be deemed to create any type of agency, joint venture, or partnership relationship between the parties. Neither party shall have any right or authority to bind or obligate the other in any manner to any third party. In the event of any legal proceeding between the parties arising out of or related to this EULA, the prevailing party shall be entitled to recover, in addition to any other relief awarded or granted, its costs and expenses (including reasonable attorneys' and expert witness' fees) incurred in any such proceeding.

11. QUESTIONS?

Should you have any questions concerning this EULA please contact Nuts About Nets, LLC via email at [email protected] or by phone at 425.881.6506.

Copyright © 2010, Nuts About Nets, LLC