NetBrain Personal Edition 4.1

EULA - End User License Agreement

NetBrain Workstation Personal Edition Plus - End User License Agreement (EULA)

Licensor:

NetBrain Technologies Inc.

23 Third Avenue

Burlington, MA 01803 USA
* * * PLEASE READ CAREFULLY * * *

This End User License Agreement ("EULA") is a legally binding agreement between you and NetBrain Technologies, Inc., a Delaware corporation ("NetBrain"). By clicking the “I AGREE” button, you acknowledge that (1) you are authorized to enter into this EULA, and are doing so, and (2) you have read and understand and agree that you shall be bound by the terms and conditions of this EULA and the limited warranty and limitation of liability set out in it. In addition, by downloading, installing, copying or otherwise using, for any purpose, the NetBrain Workstation Personal Edition software ( "Software"), you are agreeing to be bound by the terms and conditions of this EULA.

NetBrain Personal Edition Plus is Not Free software. It is made available, free of charge, to individual network professionals under the following terms:

• The Software may only be used for learning and educational purposes, for you to obtain network knowledge in strictly non-commercial settings. USING THE SOFTWARE FOR COMMERCIAL PURPOSES OR REVERSE-ENGINEERING THE SOFTWARE IS STRICTLY PROHIBITED.

• You are required to renew this EULA annually.

• You agree, as a condition to this license, to contribute to a visual learning community established at www.network-diagram.com by joining discussions and contributing network learning materials.

IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, (1) CLICK ON THE “Cancel” BUTTON BELOW AND INSTALLATION WILL TERMINATE; (2) do not download, install, copy or use the Software, and (3) Delete these materials from your computer.

1. GRANT OF LIMITED LICENSE

a) This Software is made available to you at no charge for a maximum term of one (1) year solely for personal, non-commercial use, such as learning network skills or preparing for network certification. This license is not perpetual, and requires annual renewal. NetBrain reserves the right to reject your renewal or terminate your right to use the Software at any time, for any reason.

b) You will accumulate points by actively contributing to the visual learning community according to rules set forth at www.network-diagram.com. You will be able to apply these points to renew your license to use the Software.

c) You can use the Software on an enterprise (commercial) network that is under your control, for demonstration and trial purposes only for the first month after you have downloaded this Software. After that, you may not install the Software on any non-personal network and may not use the Software for any commercial purposes. You may not exercise any of the rights granted to you in this EULA for commercial advantage or private monetary compensation.

d) This Software is restricted to one copy per user and one user per copy. You may not use multiple email addresses to obtain multiple copies of software, unless the previous email address is no longer valid.

e) You acknowledge and agree that you may only use the Software and its associated written materials (“Documentation”) (i) pursuant to the terms of this EULA and (ii) in a manner that complies with all applicable laws in the jurisdictions in which you use the Software and Documentation, including, but not limited to, applicable restrictions concerning copyright and other intellectual property rights.

f) You agree that you will not reverse engineer, de-compile or disassemble any portion of the Software. Furthermore, you hereby agree not to create derivative works based on the Software. The agreement against creating derivative works includes, but is not limited to, using components of or the entire installation of the Software in another software package, whether or not meant for distribution to third parties.

2. OWNERSHIP OF THE SOFTWARE

You agree and acknowledge that NetBrain transfers no ownership interest in any Software, or in the intellectual property (including but not limited to copyright) in any Software or in any Software copy, to you under this EULA or otherwise, and that NetBrain and its licensors, as applicable, reserve all rights not expressly granted to you in this EULA.

3. COPYRIGHT

The Software and all rights, without limitation including proprietary rights therein, are owned by NetBrain and are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Software is licensed, not sold. You acknowledge that no title to the intellectual property in the Software is transferred to you. You further acknowledge that title and full ownership rights to the Software will remain the exclusive property of NetBrain and you will not acquire any rights to the Software except as expressly set forth in this license. You agree that any copies of the Software will contain the same proprietary notices which appear on and in the Software.

4. AGREEMENT TERM & TERMINATION

This EULA will automatically terminate if you fail to comply with any term hereof. No notice shall be required from NetBrain to effect such termination. This EULA will also immediately terminate upon notice of termination from NetBrain for any reason or no reason at all. Upon any termination of this EULA, you shall immediately discontinue use of the Software, or certify destruction of, all full or partial copies of the Software, documentation and related materials provided by NetBrain.

5. NO OTHER WARRANTIES

THE SOFTWARE PRODUCT IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. NETBRAIN DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE SOFTWARE, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OF THIRD PARTY RIGHTS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, OR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS 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.

6. SEVERABILITY

In the event of invalidity of any provision of this license, the parties agree that such invalidity shall not affect the validity of the remaining portions of this license.

7. LIMITATION OF LIABILITY

IN NO EVENT WILL NETBRAIN BE LIABLE TO YOU FOR ANY SPECIAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION THE COST OF INSURANCE COVERAGE OR PREMIUM INCREASES, DAMAGES ARISING FROM LOSS OF DATA, USE, LOST PROFITS, OPPORTUNITY OR GOODWILL, PROPERTY DAMAGE, OR OTHER PECUNIARY LOSS), WHETHER OR NOT NETBRAIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, HOWEVER CAUSED AND ON ANY THEORY OR LIABILITY ARISING OUT OF THIS LICENSE AGREEMENT. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. NETBRAIN'S DIRECT LIABILITY FOR BREACH OF CONTRACT ARISING OUT OF THIS SOFTWARE LICENSE AGREEMENT AND/OR YOUR USE OR POSSESSION OF PARTICULAR SOFTWARE, INCLUDING WITHOUT LIMITATION ANY AND ALL CLAIMS COMBINED, WILL NOT EXCEED THE AMOUNT OF ANY LICENSE FEE PAID BY YOU.

8. GOVERNING LAW

This EULA will be governed by and interpreted in accordance with the laws of the Commonwealth of Massachusetts.

9. CONFIDENTIALITY

(a) By virtue of this EULA, you will have access to information that is confidential to NetBrain ("Confidential Information"). Confidential Information will include: all technical and business information, including without limitation the Software and any Software Updates provided by NetBrain, planning, pricing and offerings for products and services; other product information including but not limited to configuration and packaging details; and all information identified elsewhere in this EULA as Confidential Information. NetBrain’s Confidential Information will not include information that: (i) is or becomes generally known to the public through no act or omission by you; (ii) was in your lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (iii) is lawfully disclosed to you by a third party without restriction on disclosure; or (iv) is independently developed by you without use of or reference NetBrain's Confidential Information.

(b) The parties agree to hold each other's Confidential Information in confidence during the term of this EULA and for a period of three (3) years after termination of this EULA. Notwithstanding the foregoing, Customer will keep the Software(s) confidential indefinitely after termination of this EULA. You agree, unless required by law, not to make NetBrain’s Confidential Information available in any form to any third party for any purpose except to the extent necessary to exercise its rights under this EULA and to treat NetBrain’s Confidential Information with the same degree of care with which you would treat your own confidential information of a like nature, and in no case with less than a reasonable degree of care.

(c) It shall not be a breach of this section if Confidential Information is disclosed pursuant to subpoena or other compulsory judicial or administrative process, provided the party served with such process promptly notifies the other party and provides reasonable assistance so that the other party may seek a protective order against public disclosure.

(d) You agree to limit the disclosure of Confidential Information to those who have a need to know such Confidential Information, such as your attorney, and you agree to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by others in violation of the terms of this EULA.

(e) You agree not to use NetBrain's Confidential Information for any purpose other than the performance of this EULA. Each party shall not disclose the terms of this EULA or the ongoing business relationship initiated by this EULA except as required by law or governmental regulation without the other party's prior written consent, except that each party may disclose the terms of this EULA on a confidential basis to its accountants, attorneys, parent organizations and financial advisors and lenders.

10. EXPORT REGULATIONS. You acknowledge that the Software and all related technical information, documents, and materials may be subject to export controls under the U.S. Export Administration Regulations and, to the extent applicable, you shall (a) comply with all requirements set forth in such regulations, and (b) cooperate fully with each other in any official or unofficial audit or inspection that relates to such export requirements.

11. GENERAL PROVISION

This is the entire agreement between you and NetBrain, which supersedes any prior agreement or understanding, whether written, or oral, relating to the subject matter of this license. If any part of this EULA is found void and unenforceable, it will not affect the validity of the balance of the agreement, which shall remain valid and enforceable according to its terms. NetBrain, on its sole discretion, may modify this EULA in writing at any time.