NetQ On-Premises End User License Agreement
NVIDIA NETQ END USER LICENSE AGREEMENT
NVIDIA NETQ software provides visibility, provisioning, troubleshooting, actionable insights, and operational intelligence about the health of Your network (“NETQ Software”).
These license terms form a legal agreement (“Agreement”) between You, either as an individual person or legal entity (each “You” or “Your”) and NVIDIA Corporation (“NVIDIA”), governing Your use of NETQ Software. Please read this Agreement carefully before clicking any form of “I Accept” button and before registering or using NETQ Software.
If You are entering into this Agreement on behalf of a company or other legal entity, You represent that You have the legal authority to bind the entity to this Agreement, in which case, “You” will mean the entity You represent. If You don’t have the required authority to accept this Agreement or if You do not agree to the terms of this Agreement, do not download, install, or otherwise use the NETQ Software.
1. LICENSE.
Subject to the terms of this Agreement and timely payment of the fee (if applicable), NVIDIA grants You a limited, non‐exclusive, non‐transferable, non‐sublicensable license, while You remain in compliance with these terms, to:
a. Install and use the NETQ Software for Your internal business use during the term of the Agreement, and
b. provision/monitor switches, DPUs and other networking products up to the number of licenses You purchased.
2. TAXES.
The fee (if applicable) does not include taxes. If NVIDIA is required to pay sales, use, property, value‐added or other taxes associated with delivery of the license in this Agreement, then such taxes shall be billed to and paid by You, unless NVIDIA receives a valid exemption or resale certificate. If You are not billed the applicable tax under the order, then it is Your responsibility to properly remit the tax directly to the applicable tax jurisdiction. Further, You acknowledge that the payments to NVIDIA under the license shall be made in full without reduction for withholding taxes, if applicable. This section shall not apply to taxes based on NVIDIA’s net income or payroll taxes.
3. AUTHORIZED USERS.
You may allow employees and contractors of Your entity (“Authorized Users”) to access and use NETQ Software from Your devices, provided that they use NETQ Software to support Your business and they agree to the terms and conditions set forth in this Agreement and that You are solely responsible for the use of NETQ Software and the compliance with the terms of this Agreement by Your Authorized Users. If You are an academic institution, You may allow users enrolled or employed by the academic institution to access and use NETQ Software from Your devices. If You become aware that Your Authorized Users do not follow the terms of this Agreement You agree to immediately take all steps to resolve the non‐compliance and prevent new occurrences.
4. PERFORMANCE.
A number of factors may affect Your use of NETQ Software, or may impede or interfere with Your ability to start or continue using NETQ SOFTWARE, and You understand that NVIDIA is not responsible for: (a) any factors or circumstances outside of NVIDIA’s reasonable control, including issues with Your device, telecommunications, firewall, Your service providers, or the public internet; (b) the type of servers and connectivity You have, the available bandwidth or the speed of Your internet connection; or (c) other reasonable technical reasons, errors, or bandwidth constraints.
5. LIMITATIONS.
a. You may not reverse engineer, decompile, disassemble, or remove copyright or other proprietary notices from any portion of NETQ Software.
b. Except as expressly provided in this Agreement, You may not copy, sell, rent, sublicense, transfer, distribute, modify, create derivative works of any portion of NETQ Software, including without limitation, in any publicly accessible software repositories. Without limiting the foregoing, You may not use NETQ Software as part of a product or service to any third party.
c. You may not misuse, disrupt or exploit NETQ Software for any unauthorized or illegal use or try to circumvent any technical limitations or access areas or download software or materials not intended for users (including using NETQ Software in any unauthorized way to access third‐party information or sites) or disturb the use and enjoyment of NETQ Software by other users.
d. You shall use NETQ Software exclusive for authorized and legal purposes consistent with applicable laws, regulations and the rights of others, including, but not limited to, export control laws, data privacy and security rules and regulations.
e. You may not disclose the results of any limitations, testing or benchmarking of NETQ Software to any third party.
f. You may not access or use NETQ Software in a way intended to avoid incurring fees or exceeding use limits or quotas.
g. You shall not use NETQ Software with any system or application where the use or failure of such system or application can reasonably be expected to threaten or result in personal injury, death, or catastrophic loss including, without limitation, use in connection with any avionics, navigation, military, medical, or life support or other life critical application (“Critical Applications”). You acknowledge that NVIDIA does not design, test, manufacture or certify NETQ Software for use in the context of a Critical Application and NVIDIA shall not be liable to You or any third party, in whole or in part, for any claims or damages arising from such use.
h. By accepting this Agreement or installing NETQ Software You agree to indemnify, defend and hold NVIDIA harmless including its affiliates and their respective officers, directors, employees and agents, from and against any claims, disputes, demands, liabilities, damages, losses, costs and expenses arising out of or in any way connected with: (a) breach of the terms of this Agreement by You and Your Authorized Users; or (b) You or Your Authorized Users’ infringement or misappropriate of any third party’s intellectual property right or any other violation of any applicable law.
6. PRE-RELEASE AND FEATURES.
NETQ Software features or certain versions may be identified as alpha, beta, preview or otherwise in pre‐release, may not be fully functional, may contain errors or design flaws, and may have reduced or different security, privacy, accessibility, availability, and reliability standards relative to commercially provided NVIDIA software, materials and services. Use of a pre‐release version may result in unexpected results, such as loss of use or loss of content. You may use a pre‐release features or version at Your risk and stop at Your convenience.
7. OWNERSHIP.
The NETQ Software, the modifications thereto and the respective intellectual property rights therein, are owned by NVIDIA or its licensors and are licensed to You as described in this Agreement. Except as expressly provided herein, no license or right is granted to You directly or indirectly by implication, estoppel or otherwise. You agree to cooperate with NVIDIA and provide reasonably requested information to verify Your compliance with these terms.
8. FEEDBACK.
You may, but are not obligated to, provide suggestions, requests, fixes, modifications, enhancements, or other feedback regarding NetQ (collectively, “Feedback”). Feedback, even if designated as confidential by You, will not create any confidentiality obligation for NVIDIA or its affiliates. If You provide Feedback, You hereby grant NVIDIA, its affiliates and its designees a non‐exclusive, perpetual, irrevocable, sublicensable, worldwide, royalty‐free, fully paid‐up and transferable license, under Your intellectual property rights, to publicly perform, publicly display, reproduce, use, make, have made, sell, offer for sale, distribute (through multiple tiers of distribution), import, create derivative works of and otherwise commercialize and exploit the Feedback at NVIDIA’s discretion. You will not give Feedback (i) that You have reason to believe is subject to any restriction that impairs the exercise of the grant stated in this section, such as third‐party intellectual property rights; or (ii) subject to license terms which seek to require any product incorporating or developed using such Feedback, or other intellectual property of NVIDIA or its affiliates, to be licensed to or otherwise shared with any third party.
9. UPDATES AND SUPPORT.
Except as expressly indicated in an order, NVIDIA is under no obligation to provide support for the SOFTWARE or to provide any maintenance, updates, upgrades, or other revisions to the SOFTWARE. Unless revisions are provided with their separate governing terms, they are deemed part of the SOFTWARE licensed to You as provided in this Agreement. Additionally, NVIDIA may change, discontinue, or deprecate any part or all of NETQ Software, change or remove features, functionality, or content available. Your continued use of NETQ Software is deemed acceptance of such changes.
10. AUTHORIZED USE.
You are responsible for maintaining Your login information secured for Your use only, and for the activities under Your account. You agree to immediately notify NVIDIA at: NETQSecurity@nvidia.com of any known or suspected security incidents and/or unauthorized use of Your account.
11. THIRD-PARTY SOFTWARE.
NETQ Software may come bundled with, or otherwise include or be distributed with, third‐party software licensed by NVIDIA supplier and/or open source software provided under open source license. Use of third‐party software is subject to the third‐party license terms, or else You may use the third‐party software provided under this Agreement as‐is with NETQ. Copyright to third party software is held by the copyright holders indicated in the third‐ party license terms. If and to the extent there is a conflict between the terms in this Agreement and the third‐party license terms, the third‐party terms control only to the extent necessary to resolve the conflict.
12. TERM AND TERMINATION.
12.1 This Agreement will continue to apply until terminated by either You or NVIDIA as described below.
12.2. Your NetQ Software license ends at the earlier of the expiration or termination of the license term or this Agreement. Each service ends at the earlier of the expiration or termination of the service term or this Agreement, or upon the expiration or termination of the associated license and no credit or refund will be provided for any service fees paid.
12.3. NVIDIA may, at any time, terminate this Agreement if: (a) You are in breach of the terms and conditions of this Agreement and such breach is not cured within thirty (30) days following notice from NVIDIA (or immediately if You violate NVIDIA’s intellectual property rights) or (b) if You commence or participate in any legal proceeding against NVIDIA with respect to NETQ or (c) if You fail to pay the applicable fees or (d) if NVIDIA reasonably suspects or determines that You and/or any Authorized User do not comply with any applicable laws and regulations.
12.4. Upon any expiration or termination of this Agreement, Your NetQ license or service, any amounts owed to NVIDIA become immediately due and payable and You agree to promptly discontinue using the NETQ. You may download Your data within fourteen (14) days and following this period, NVIDIA has no obligation to retain any data and may delete Your content and any other materials from NETQ at any time.
12.5. All provisions of this Agreement which by their nature should survive the termination of the Agreement will survive termination, including, without limitation, Sections 4, 6 and 10-14.
13. DATA COLLECTION.
You hereby acknowledge and agree that NETQ Software collects the following data for the following purposes. NVIDIA does not access to the data collected through NETQ Software unless You decide to share this data with NVIDIA, for instance, for debugging purposes.
a. Email address and organization name for login purpose.
b. Configuration and operating system data to properly configure and optimize and debug Your data center network.
c. Metrics, logs, settings, telemetry, configurations, performance to allow You, at Your choice, to monitor systems, applications, and services on Your systems; and
d. If You select to use our services, NVIDIA may collect metrics, logs, settings, telemetry (such as WJH) and configurations to improve NVIDIA products and services to You and to other NVIDIA customers.
You should review the NVIDIA Privacy Policy, located at https://www.nvidia.com/en-us/about-nvidia/privacy-policy/, which explains NVIDIA’s policy for collecting and using personal data, as well as visit the NVIDIA Privacy Center, located at https://www.nvidia.com/en-us/privacy-center/.
14. NO WARRANTIES.
NETQ SOFTWARE IS PROVIDED BY NVIDIA “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS.” NVIDIA EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND OR NATURE RELATING TO OR ARISING FROM ANY SOFTWARE LICENSED UNDER THIS AGREEMENT, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON‐INFRINGEMENT. NO WARRANTY IS MADE ON THE BASIS OF TRADE USAGE, COURSE OF DEALING OR COURSE OF TRADE. WITHOUT LIMITING THE FOREGOING, NVIDIA DOES NOT WARRANT THAT ACCESS TO NETQ SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE; THAT NETQ SOFTWARE WILL MEET YOUR REQUIREMENTS; THAT NETQ SOFTWARE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT ANY CERTAIN CONTENT WILL BE AVAILABLE.
15. LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NVIDIA AND ITS AFFILIATES SHALL NOT BE LIABLE FOR ANY (I) SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR (II) DAMAGES FOR (A) LOST PROFITS, LOSS OF USE, LOSS OF DATA OR LOSS OF GOODWILL, OR (B) THE COSTS OF PROCURING SUBSTITUTE PRODUCTS, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE USE OR THE PERFORMANCE OF NETQ SOFTWARE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER CAUSE OF ACTION OR THEORY OF LIABILITY. IN NO EVENT WILL NVIDIA’S AND ITS AFFILIATES TOTAL CUMULATIVE LIABILITY UNDER OR ARISING OUT OF THIS AGREEMENT EXCEED US$10.00. THE NATURE OF THE LIABILITY OR THE NUMBER OF CLAIMS OR SUITS SHALL NOT ENLARGE OR EXTEND THIS LIMIT. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER NVIDIA OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
The exclusions and limitations of liability in this Agreement form an essential basis of the bargain between the parties, and, absent any such exclusions or limitations of liability, the terms, including the economic terms, would be substantially different.
16. GENERAL.
16.1. Assignment. This Agreement shall not be transferred or assigned including by merger, consolidation, dissolution, or operation of law without NVIDIA prior written approval. Any attempted assignment not approved by NVIDIA in writing shall be void and of no effect. NVIDIA may assign, delegate, or transfer this Agreement and its rights and obligations, and if to a non‐affiliate You will be notified.
16.2. Audit. During the term of the Agreement and for a period of three (3) years thereafter, You will maintain complete and accurate information regarding Your activities under the Agreement and NVIDIA or an independent auditor will have the right to audit You during regular business hours to validate and confirm Your information and compliance with the terms of the Agreement. Audits will be conducted no more frequently than annually unless non‐compliance was previously found. If an audit reveals an underpayment, You will promptly remit the full amount of such underpayment to NVIDIA including interest that will accrue (without the requirement of a notice) at the lower of 1.5% per month or the highest rate permissible by law. If the underpaid amount exceeds five percent (5%) of the amounts payable to NVIDIA during the audited period or if the audit reveals a material non‐conformance with the terms of the Agreement, then You will reimburse NVIDIA’s reasonable audit costs.
16.3. Governing Law and Jurisdiction. This Agreement will be governed in all respects by the laws of the United States and the laws of the State of Delaware, without regard to conflict of laws principles or the United Nations Convention on Contracts for the International Sale of Goods. The state and federal courts residing in Santa Clara County, California will have exclusive jurisdiction over any dispute or claim arising out of or related to this Agreement, and the parties irrevocably consent to personal jurisdiction and venue in those courts; except that, either party may apply for injunctive remedies or an equivalent type of urgent legal relief in any jurisdiction.
16.4. Severability. If any court of competent jurisdiction determines that any provision of this Agreement is illegal, invalid or unenforceable, such provision will be construed as limited to the extent necessary to be consistent with and fully enforceable under the law and the remaining provisions will remain in full force and effect. Unless otherwise specified, remedies are cumulative.
16.5. Relationship of the Parties. Each party acknowledges and agrees that the other is an independent contractor in the performance of this Agreement.
16.6. US Government Restricted Rights. NETQ Software has been developed entirely at private expense and is “commercial items” consisting of “commercial computer software” and “commercial computer software documentation” provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the U.S. Government or a U.S. Government subcontractor is subject to the restrictions in this Agreement pursuant to DFARS 227.7202‐3(a) or as set forth in subparagraphs (b)(1) and (2) of the Commercial Computer Software ‐ Restricted Rights clause at FAR 52.227‐19, as applicable. Contractor/manufacturer is NVIDIA, 2788 San Tomas Expressway, Santa Clara, CA 95051.
16.7. Trade Compliance. You agree to comply with all applicable export, import, trade and economic sanctions laws and regulations, including U.S. Export Administration Regulations and Office of Foreign Assets Control regulations. These laws include restrictions on destinations, end‐users and end‐use.
16.8. Notices. Any notice delivered by NVIDIA to You under this Agreement will be delivered via mail, email, or fax. You agree that any notices that NVIDIA sends You electronically will satisfy any legal communication requirements. Please direct Your legal notices or other correspondence to NVIDIA Corporation, 2788 San Tomas Expressway, Santa Clara, California 95051, United States of America, Attention: General Counsel and to legalnotices@nvidia.com
16.9. Entire Agreement. This Agreement and any exhibits incorporated into this Agreement constitute the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior negotiations, conversations, or discussions between the parties relating to this subject matter. Any additional and/or conflicting terms on documents issued by You are null, void, and invalid. Any amendment or waiver under this Agreement shall be in writing and signed by representatives of both parties.
(v. July 28, 2023)