F5 NETWORKS BETA PRODUCT END USER SOFTWARE LICENSE

 

IMPORTANT – READ BEFORE INSTALLING OR OPERATING THIS PRODUCT. THIS LICENSE IS FOR THE USE OF A BETA PRODUCT VERSION AND AS SUCH IT MAY CONTAIN KNOWN OR UNKNOWN BUGS OR ERRORS AND THE PRODUCT IS PROVIDED WITHOUT WARRANTY.

               

This Beta Product Evaluation License Agreement ("Agreement") is made between F5 Networks, Inc., 401 Elliott Avenue West, Seattle, WA 98119 ("F5") and You. ("Licensee"). The terms and conditions contained herein shall apply to use of the F5 Beta version of the product BIG-IP Edge Client, ("Product") (including all embedded software or software modules delivered with or as the Product [the "Software"]) and accompanying Product documentation ("Documentation"). BY CLICKING "I ACCEPT" BELOW AND/OR USING THE PRODUCT, YOU AGREE TO BE BOUND BY THIS LICENSE. IF YOU ARE ACCEPTING ON BEHALF OF A COMPANY, YOU REPRESENT THAT YOU ARE AUTHORIZED TO BIND THE COMPANY TO THIS LICENSE. WHETHER YOU ARE ACTING ON YOUR OWN BEHALF, OR REPRESENTING A COMPANY, YOU MUST BE OF MAJORITY AGE AND BE OTHERWISE COMPETENT TO ENTER INTO CONTRACTS. IF YOU DO NOT MEET THESE CRITERIA OR YOU DO NOT AGREE TO ANY OF THE TERMS OF THIS LICENSE, CLICK ON THE "I REJECT" BUTTON BELOW AND DO NOT INSTALL OR USE THE PRODUCT.

1. LICENSE GRANT.
F5 hereby grants and Licensee hereby accepts a non-exclusive, nontransferable right to install and use the Product, subject to the restrictions herein, for its internal evaluation and testing purposes only in a non-production environment. Other than as specifically described herein, no right or license is granted to Licensee to any of F5's trademarks, patents, copyrights, or other intellectual property rights.

2. TITLE.
The Product, documentation and the associated copyrights and other intellectual property rights are owned by F5 or its licensors and are protected by law and international treaties.F5 retains title to the Product and Documentation delivered under this Agreement, as well as any changes, modifications or corrections to the Product or Documentation. Except for the license grant provided in Section 1, no right, title, or interest in the Product is granted or conveyed to Licensee by implication or otherwise. The Product incorporates certain third party software, which is used subject to licenses from the respective owners. The protections given to F5 under this License also apply to the suppliers of this third party software, who are intended third party beneficiaries of this License.

3. OBLIGATIONS OF LICENSEE.

3.1 Licensee may not copy, modify, translate, disassemble, de-compile, reverse engineer, or create derivative works of the software component of the Product or Documentation. Licensee shall not allow others to perform any of the actions listed above with respect to the Product or Documentation.

3.2 The Software, documentation and the associated copyrights and other intellectual property rights are owned by F5 or its licensors and are protected by law and international treaties. Licensee may not copy or translate the documentation provided with the Software or available online at http://askf5.com (“Documentation”) without F5’s prior, written consent. Licensee may install, use, access, display and run the Software only in the manner in which it has been licensed as indicated herein and in the applicable purchase order, quote or the license file for such Application or Software, including but not limited to any restrictions on number of protected applications, number or type of licensed devices, number of authorized copies or instances, number of users, bandwidth, non-production use or database restrictions. Licensee agrees that it will not defeat, circumvent or disable any mechanism in the Software used to limit license duration or access to non-licensed functionality or capacity, and that any such attempt will be a material breach of this Agreement. F5 reserves the right to audit Licensee’s use of the Software or authorize others to conduct such an audit on its behalf and to disable any application or functionality that has not been specifically licensed, in addition to any other rights and remedies available to F5.

3.3 Licensee shall not disclose the results of any benchmark tests of the Product or Data to any third party without F5's prior written consent.

3.4 Licensee may not sublicense the Product or rent, lease, barter, sell, or otherwise transfer the Product or Documentation. Licensee shall not use any information in any way related to or acquired by use of the Product for the prospective economic advantage of any third party.

3.5 Certain portions of the Software include third party software and are subject to additional limitations imposed by those third parties ("Restricted Third Party Software"). Certain portions of the Software may also include geographical or other data ("Data"). Licensee agrees that it will only use such Restricted Third Party Software or Data in conjunction with the Product and not as standalone software. Licensee will not (i) copy the Restricted Third Party Software or Data onto any public or distributed network; (ii) use the Restricted Third Party Software or Data separately to operate in or as a time-sharing, outsourcing, service bureau, application service provider or managed service provider environment; (iii) use the Restricted Third Party Software or Data as a general server, as a standalone application or with applications other than the Software under this license; (iv) change any proprietary rights notices which appear in the Restricted Third Party Software or Data; or (v) modify the Restricted Third Party Software or Data.

4. TERM AND TERMINATION.

4.1 The term of this Agreement shall be for 30 days from license activation (the “Evaluation Period”). F5 may extend the Evaluation Period upon written notice to Licensee.

4.2 This agreement will terminate automatically upon the initial commercial release of a generally available version of the Product. Upon termination of this license, the Product will no longer be supported by F5 and Licensee should discontinue use immediately. Any further use of the Product shall be at Licensee’s own personal risk.

4.3 Sections 3, 5, and 7 in their entirety shall survive any termination of this Agreement.

5. CONFIDENTIAL INFORMATION.

5.1 Licensee acknowledges that the Product contains valuable trade secrets and confidential information owned by F5. Licensee will not use, or disclose to any third party, either during the term or after the termination of this Agreement, any source or object codes, technical data, or information reasonably understood to be private and provided by F5 in order to further this Agreement ("Confidential Information") unless it is required to do so by law or court order, in which event Licensee will provide F5 with prompt written notice of such requirement and reasonably cooperate with F5 in seeking a protective order or other relief.

5.2 The obligation of the License not to disclose Confidential Information will not apply to information which was (i) already in the possession of Licensee without an obligation of confidentiality; (ii) hereafter rightfully furnished to Licensee by a third party without a breach of any separate nondisclosure obligation; (iii) publicly available without breach of this agreement (i.e. information in the public domain); (iv) released for disclosure by Licensee with written consent of F5; or (v) independently developed by Licensee without reliance on or reference to any Confidential Information.

5.3 Within ten (10) days after the termination of this Agreement, if requested, Licensee shall return all originals and copies of any Confidential Information originally disclosed by F5 which has been fixed in any tangible medium of expression. If return of a digital copy is impractical, Licensee may destroy the digital copy and immediately send written certification of such destruction to F5.

5.4 Licensee will use the same degree of care to protect F5's Confidential Information from unauthorized dissemination and disclosure as Licensee uses to protect its own like confidential information. Licensee will always use at least a reasonable degree of care in protecting F5's Confidential Information.

5.5 In the event of a breach of this Section, money damages may not be an adequate remedy, and, therefore, in addition to all other remedies to which it may be entitled, F5 will be entitled to seek equitable remedies including a temporary and permanent injunction without the necessity of posting a bond or other security.

6. DISCLAIMER OF WARRANTIES.
LICENSEE ACCEPTS THE PRODUCT AND DATA "AS IS" WITH NO EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF ANY KIND, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, AS TO TITLE OR NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. F5 NEITHER ASSUMES, NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR IT, ANY OTHER LIABILITY IN CONNECTION WITH THE PRODUCT, DATA, OR ANY OTHER INFORMATION, INCLUDING, WITHOUT LIMITATION, LIABILITY ARISING OUT OF THE DELIVERY, INSTALLATION, SUPPORT, OR USE OF THE PRODUCT, INFORMATION, OR DATA. F5 DOES NOT WARRANT THE RESULTS OF ANY PROGRAM OR SERVICE OR THAT ANY ERRORS IN THE PRODUCT WILL BE CORRECTED, OR THAT THE PRODUCT WILL MEET LICENSEE'S REQUIREMENTS OR EXPECTATIONS. F5 CANNOT GUARANTEE AND DOES NOT WARRANT THE ACCURACY OF THE DATA DELIVERED TO LICENSEE OR THAT DATA IS TRANSMITTED TO LICENSEE WITHOUT INTERRUPTION OR DELAY.

7. LIMITATION OF LIABILITY.
IN NO EVENT SHALL F5 BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUE, DATA, OR MACHINE USE, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE PRODUCT OR DOCUMENTATION, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR ANY INFORMATION PROVIDED, REGARDLESS OF THE NATURE OF THE ACTION OR UNDERLYING LEGAL THEORY, EVEN IF F5 AND/OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THE TRANSACTIONS UNDER THIS AGREEMENT MAY BE BROUGHT BY LICENSEE MORE THAN ONE YEAR AFTER THE END OF THE EVALUATION PERIOD.

8. LICENSEE ACKNOWLEDGEMENT.
LICENSEE ACKNOWLEDGES THAT THE PRODUCT IS A BETA PRODUCT AND MAY CONTAIN KNOWN OR UNKNOWN BUGS, DEFECTS AND ERRORS, MAY NOT FUNCTION AS INTENDED, AND MAY CREATE UNFORESEEABLE EVENTS. LICENSEE FURTHER ACKNOWLEDGES THAT THE PRODUCT IS INTENDED TO BE USED ONLY IN A TESTING ENVIRONMENT AND NOT FOR PRODUCTION PURPOSES. F5 WILL HAVE NO OLBIGATION TO CORRECT ANY BUGS, DEFECTS OR ERRORS IN THE PRODUCT OR TO OTHERWISE SUPPORT OR MAINTAIN THE PRODUCT.

9. ASSIGNMENT.
This Agreement is not transferable or assignable by Licensee, in whole or in part, whether voluntarily or by merger, consolidation, sale, or otherwise by operation of law, without F5's prior written consent. Subject to the foregoing, this Agreement and each and every provision hereof shall be binding upon and shall inure to the benefit of the parties and their respective permitted successors and assigns.

10. EXPORT CONTROLS.
This Agreement is not transferable or assignable by Licensee, in whole or in part, whether voluntarily or by merger, consolidation, sale, or otherwise by operation of law, without F5's prior written consent. Subject to the foregoing, this Agreement and each and every provision hereof shall be binding upon and shall inure to the benefit of the parties and their respective permitted successors and assigns.

11. NOTICES.
Any notice or other communication required or permitted under this Agreement shall be in writing and delivered in person, mailed or delivered by recognized courier service, properly addressed and stamped with the required postage, to the intended recipient at its address specified on the first page of this Agreement and shall be deemed effective upon receipt. Either party may from time to time change its address by giving the other party notice of the change in accordance with this section.

12. NO WAIVER OF CONDITIONS.
The failure of either party to insist upon strict performance of any of the terms and conditions hereunder, or waiver by either party in the exercise of any of its remedies, shall not constitute a subsequent waiver of such terms and conditions or a waiver of any default or remedy.

13. GENERAL.

13.1 The laws of the State of Washington shall govern this Agreement, without reference to its conflicts of law rules. Both parties hereby consent to venue and jurisdiction of the state and federal courts of King County, Washington. The provisions of the U.N. Convention for the International Sale of Goods and the Uniform Computer Information Transactions Act, in whatever form adopted, will not apply and the parties specifically opt out of the application of such laws.

13.2 In the event that any provision hereof is found invalid or unenforceable pursuant to judicial decree or decision, such provision shall be deemed to apply to the maximum extent permitted by law and the remainder of this Agreement shall remain valid and enforceable according to its terms.

13.3 This Agreement may be executed in counterparts, each of which shall be an original and all of which together shall constitute one and the same instrument.

14. COMPLETE AGREEMENT.
This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior proposals, negotiations, communications, and agreements, oral or written, between the parties with respect to the subject matter hereof. Except as otherwise provided herein, additional or conflicting terms contained in any standardized form or correspondence are expressly unenforceable under this Agreement unless such terms and conditions are contained in a duly executed amendment to this Agreement. Unless otherwise provided, this Agreement may be changed only by formal written amendment by the authorized representatives of the parties.

15. U.S. GOVERNMENT END USERS..
The Product and any related documentation qualify as "commercial items," as that term is defined at Federal Acquisition Regulation ("FAR") (48 C.F.R.) 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in FAR 12.212. Consistent with FAR 12.212 and DoD FAR Supp. 227.7202-1 through 227.7202-4, and notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which this License may be incorporated, Licensee may provide to a Government end user or, if this Agreement is direct, Government end user will acquire, the Product and documentation with only those rights set forth in this License. Use of either the Product or documentation or both constitutes agreement by the Government that the Product and associated documentation are "commercial computer software" and "commercial computer software documentation" and constitutes acceptance of the rights and restrictions herein

16. ACKNOWLEDGEMENTS.
The Software includes Data and software developed by third parties subject to separate licenses. Please refer to the Acknowledgement section found in the Software Documentation available at http://support.f5.com

17. OPEN SOURCE PORTIONS..
Certain portions of the Software ("Open Source Components") are licensed under the terms of applicable open source licenses, such as the BSD license, Apache license, the Lesser GNU General Public License, the GNU General Public License or any other such license. Information identifying the Open Source Components, and the licenses that apply to them, is available in the Software documentation available at http://askf5.com. Your use of each Open Source Component is subject to the terms of each applicable license. Any other software code that is not part of the Open Source Components is subject to the restrictions set forth elsewhere in this License. Furthermore, those portions of the Software that are part of the Open Source Components are subject to the remaining terms and conditions of the License to the extent that those terms are not inconsistent with the terms of the applicable licenses of the Open Source Components.