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AuditExpress EULA

BY CLICKING THE “ACCEPT” BUTTON AT THE END OF THIS EULA, OR BY INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE (AS DEFINED BELOW), YOU AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS EULA. IF YOU DO NOT AGREE WITH THE TERMS OF THIS EULA, CLICK THE “DO NOT ACCEPT” BUTTON AND DO NOT INSTALL OR USE THE SOFTWARE. PROMPTLY RETURN THE SOFTWARE IN AN UNDAMAGED CONDITION TO YOUR SUPPLIER WITHIN 30 DAYS OF YOUR FIRST RECEIPT OF THE SOFTWARE, AND YOUR LICENSE FEE WILL BE REFUNDED.

1. SOFTWARE AND DOCUMENTATION. “Software” means the computer programs accompanying or provided under this EULA, together with the associated media, corresponding Documentation, technical configurations, and technical data. “Documentation” means the end user manual and other documentation (including print and online), if any, provided to you with the Software.

2. LICENSE GRANT. Provided you comply with all terms and conditions of this EULA, Altiris grants you a non-exclusive, non-transferable license to use the Software in object code only in accordance with the License Type licensed to you. The Software is licensed solely for internal use within your organization; any other use, including for third parties or for commercial purposes, is expressly prohibited. A “Fulfillment Confirmation” in the form of a product or package label or a confirmation e-mail will be sent to you and will identify the Software licensed to you under this EULA and the License Type. This license is perpetual unless expressly stated otherwise in this EULA or in the Fulfillment Confirmation. Software designated as “for clients” or for “desktops” may not be used to manage or audit a Server. “Server” means a computing device whose primary function is to provide services to another computing device (e.g., domain services, printing services, email services, terminal services, application services, file services, web hosting, etc.). With respect to your internal use of the Software as permitted above in this Section 2, you may permit third party consultants and contractors (such as your third-party supplier(s) of information services) (“authorized users”) to use the Software, provided that (i) all such use is in accordance with the terms and conditions of this EULA, and (2) you assume full responsibility and liability for any use of the Software by such third parties in excess of the licensed number of Nodes or otherwise in violation of this EULA.

3. COPIES. You may make copies of the Software provided that any such copy: (i) is created as an essential step in the utilization of the Software as licensed under this EULA, or (ii) is only for archival purposes to back-up the Software. All trademark, copyright, and proprietary rights notices must be faithfully reproduced and included by you on such copies. You may not make any other copies of the Software.

4. OTHER RESTRICTIONS. Altiris reserves all rights not expressly granted to you in this EULA. Without limiting the generality of the foregoing, you shall not nor shall you permit any other party to: (i) disassemble, de-compile, reverse engineer, or translate any part of the Software, or otherwise attempt to reconstruct or discover the source of this Software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation, or (ii) modify or create derivative works based upon the Software, or (iii) externally distribute, sublicense, resell, encumber, or otherwise transfer this Software, or (iv) rent, lease, lend, or use the Software for timesharing or bureau use, or (v) remove any proprietary notices or labels on the Software, (vi) allow a third party to copy, access, or use the Software (except as expressly provided in Section 2 of this EULA), or (vii) disclose the results of any benchmark test of the Software to a third party without the prior written approval of Altiris, or (viii) take any actions that would cause the Software to become subject to any open source or quasi-open source license agreement.

5. OWNERSHIP. You acknowledge that all title and intellectual property in and to the Software (including its media and all copies of the Software) are owned by Altiris or its licensor(s), if any. The Software is protected by U.S. and international laws, including without limitation copyright and trademark law and international treaty provisions. The Software is licensed to you, not sold.

6. COPYRIGHTS; TRADE SECRETS. You acknowledge and agree that the structure, sequence, and organization of the Software (including but not limited to any technical configurations, technical data, images, photographs, animations, video, audio, music, and text) are proprietary to and are the valuable trade secrets of Altiris and its licensors. You agree to hold such trade secrets in confidence. Unless explicitly set forth in a written agreement executed between Altiris and you, you may not remove from the Software or alter any of the trademarks, trade names, logos, patent or copyright notices or markings, or add any other notices or markings to the Software.

7. EVALUATION LICENSE. This Section applies to you if the Software is licensed to you for evaluation or demonstration purposes. You are permitted to use the Software in object form only for evaluation or demonstration purposes only. The Software may contain an automatic disabling mechanism. Your right to use the Software under an Evaluation License is limited to the following periods of time for the following Software products: (a) Security Expressions – 30 days; (b) Audit Express – 15 days; (c) CISP – 10 days. If no period of use is specified, then your right to use the Software shall terminate thirty (30) days from receipt of the Software, at which time you must return or destroy the Software.

8. ACTIVATION KEY. The use of the Software may require an “activation key” from Altiris or its authorized reseller. The activation key may be a printable digital key, a non-printable file, or any other mechanism used by Altiris for license activation purposes. You agree that you will not (i) attempt to “hack,” “crack,” or otherwise override this activation key or (ii) re-use this activation key in any way which causes your use of the Software to exceed your licensed number of Nodes.

9. UPDATES. Except as otherwise expressly provided herein, this EULA will govern any Software updates and upgrades that may be provided to you in accordance with Altiris’ then-current maintenance and support policies (including Altiris’ Annual Upgrade Protection program or “AUP” program), unless such updates and upgrades are provided under separate license agreement. You may use such updates or upgrades only in conjunction with your then-existing Software licensed under this EULA. The Software and all updates and upgrades are licensed as a single product and such updates and upgrades may not be separated from the Software to exceed the scope of your original license. Any other software that may be provided with the Software that is associated with a separate end-user license agreement is licensed to you under the terms of that separate license agreement.

10. LIMITED WARRANTY. If (a) the Software does not substantially conform to its specifications in the Documentation, the physical media accompanying the Software is defective, or if you are dissatisfied with the Software for any reason, and (b) if the Software (including all accompanying media, Documentation, packaging, and materials) is returned by you within thirty (30) days of first receipt, then your license fee for the Software will be refunded to you. Upon return, this EULA shall terminate and you must immediately cease all use of the Software and remove and erase or cause to be removed and erased all copies of any Software from all computers and storage media and devices within your possession or control or the possession or control of authorized users under Section 2 of this EULA. At Altiris’ request, you will certify in writing to Altiris that you have complied with this Section. In the event that the Software is licensed to you for evaluation or demonstration purposes, there shall be no refund because such licenses are free. In the event you purchase a license to the Software during or after an evaluation license for such Software, then Altiris shall have no obligation to refund any license fees paid by you for the license to the Software (i.e., the 30 day evaluation period is your thirty day limited warranty period). THIS LIMITED WARRANTY SHALL NOT APPLY TO SOFTWARE UPDATES AND UPGRADES; ALL UPDATES AND UPGRADES ARE LICENSED “AS IS,” WITHOUT WARRANTY OF ANY KIND.

11. NO OTHER WARRANTIES. EXCEPT AS EXPRESSLY WARRANTED ABOVE IN SECTION 10, THE SOFTWARE IS PROVIDED “AS IS,” WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. ANY EXPRESS WARRANTY MADE OUTSIDE OF THIS EULA IS EXCLUDED AND SUPERCEDED. NEITHER ALTIRIS NOR ITS LICENSORS REPRESENT OR WARRANT THAT THE SOFTWARE WILL SATISFY YOUR REQUIREMENTS OR THAT IT IS WITHOUT DEFECT OR ERROR OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR FREE. Some jurisdictions do not allow certain disclaimers or limitations of warranties, so some of these may not apply to you.

12. NON-ALTIRIS PRODUCTS. ALTIRIS DOES NOT WARRANT NON-ALTIRIS PRODUCTS. ANY SUCH PRODUCTS ARE PROVIDED ON AN “AS-IS” BASIS. ANY WARRANTY SERVICE FOR NON-ALTIRIS PRODUCTS WILL BE PROVIDED BY THE PRODUCT MANUFACTURER IN ACCORDANCE WITH ANY APPLICABLE MANUFACTURER’S WARRANTY. To the extent that the Software enables you to access (on-line or otherwise) materials not supplied by Altiris ("Content"), you should be aware that such Content is the property of the applicable Content owner and may be protected by applicable copyright law. This Agreement grants you no rights to Content.

13. BUSINESS OBJECTS PRODUCTS. You acknowledge that the Software may contain the software products of Business Objects, S.A., or one of its subsidiaries (“Business Objects”). You agree that you will not nor will you permit any other party to: (i) modify, disassemble, decompile, translate, adapt, or reverse-engineer the Business Objects software products or the report file (.RPT) format, (ii) distribute the Business Objects software products to any third party, (iii) use the Business Objects software products to create for distribution a product that is generally competitive with Business Objects’ product offerings, (iv) use the Business Objects software products to create for distribution a product that converts the report file (.RPT) format to an alternative report file format used by any general-purpose report writing, data analysis, or report delivery product that is not the property of Business Objects, or (v) use any Business Objects software product on a rental or timesharing basis or to operate a service bureau facility for the benefit of third parties. You agree that you will use any Business Objects software product only in conjunction with the Altiris Software product provided therewith and the data specifically related to the Altiris Software product. If the Altiris Software product requires the use of a data mart or data warehouse, the Business Objects software product may be used with the data mart or data warehouse only to access data created or processed by the Altiris Software product. YOU AGREE THAT BUSINESS OBJECTS AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF THIRD PARTY RIGHTS. BUSINESS OBJECTS AND ITS SUPPLIERS SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, COVER, OR OTHER DAMAGES IN CONNECTION WITH THE SOFTWARE OR ARISING UNDER THIS EULA.

14. EXCLUSION OF CERTAIN DAMAGES. TO THE FULL EXTENT PERMITTED BY LAW, NEITHER ALTIRIS NOR ITS LICENSORS SHALL IN ANY CASE BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, REVENUE, BUSINESS, OR DATA, COSTS OF COVER, OR EQUIPMENT DOWNTIME ARISING FROM OR RELATING TO THIS EULA OR THE USE OR INABILITY TO USE THE SOFTWARE, REGARDLESS OF THE FORM OF ACTION AND EVEN IF ALTIRIS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THIS DISCLAIMER OF LIABILITY WILL NOT BE AFFECTED IF ANY REMEDY PROVIDED HEREIN FAILS OF ITS ESSENTIAL PURPOSE. Some jurisdictions do not allow certain exclusions or limitations of liability, so some of these may not apply to you.

15. LIMITATION OF LIABILITY. THE AGGREGATE LIABILITY OF ALTIRIS OR ITS LICENSORS ARISING FROM OR RELATING TO THIS EULA OR THE USE OR INABILITY TO USE THE SOFTWARE (REGARDLESS OF THE FORM OF ACTION OR CLAIM, WHETHER CONTRACT, WARRANTY, TORT AND/OR OTHERWISE) SHALL NOT EXCEED THE AMOUNT OF ALL LICENSE FEES PAID BY YOU FOR THE SOFTWARE LICENSE(S) GRANTED HEREUNDER.

16. SOLE REMEDY AND ALLOCATION OF RISK. YOUR SOLE AND EXCLUSIVE REMEDY AND ALTIRIS’ SOLE AND EXCLUSIVE LIABILITY ARE SET FORTH IN THIS EULA. This EULA defines a mutually agreed-upon allocation of risk.

17. NOTICE. THE SOFTWARE IS NOT INTENDED OR LICENSED FOR USE IN ANY HAZARDOUS OR HIGH RISK ACTIVITY.

18. NO SUPPORT. Except as expressly required by applicable law, nothing in this EULA entitles you to any support, maintenance, or new versions of the Software. You may contact Altiris to determine the availability of support, maintenance, and new versions of the Software, and the fees, terms, and conditions that would apply.

19. TAXES. In the event that any withholding, sales, or use taxes, goods and services tax, or other taxes or government fees, assessments, or charges are payable because of this EULA, or any license of the Software, or because of any payment by you, then you shall pay such taxes, fees, assessments, and charges in addition to all other payments.

20. GOVERNING LAW, VENUE, AND ATTORNEYS’ FEES. This EULA shall be governed by the laws of the state of Utah and the United States of America without giving effect to conflict or choice of law principles, and any litigation between the parties arising under this EULA shall be conducted exclusively in Utah state courts or the federal district courts within Utah. The parties agree to exclude application of the “United Nations Convention on Contracts for the International Sale of Goods” to this EULA. In any action or suit to enforce any right or remedy under this EULA or to interpret any provision of this EULA, the prevailing party will be entitled to recover its fees and costs, including reasonable attorneys’ fees.

21. SEVERABILITY. If any provision in this EULA is invalid or unenforceable or contrary to applicable law, such provision shall be construed, limited, or altered, as necessary, to eliminate the invalidity or unenforceability or the conflict with applicable law, and all other provisions of this EULA shall remain in effect.

22. TERM AND TERMINATION. This EULA is effective until terminated. You may terminate this EULA by uninstalling and returning the Software to Altiris along with all Documentation and original media. The licenses granted herein shall automatically terminate without notice if you fail to comply with any material provision of this EULA. In such event, you must immediately uninstall and return the Software, including all Documentation and original media, to Altiris. This shall not limit or affect any remedy available to Altiris for your breach of this EULA.

23. U.S. GOVERNMENT END USERS. The Software is provided with Restricted Rights. Use, duplication, or disclosure by the United States Government is subject to restrictions applicable to commercial computer software as set forth in the Federal Acquisition Regulations (FAR) §52.227-14 (Jun 1987) Alternate III (June 1987), FAR § 52.227-19 (June 1987), or DFARS § 252.227-7013 (b)(3) (Nov 1995) or applicable successor provisions. Use of the Software by the U.S. Government constitutes acknowledgment of Altiris’ proprietary rights therein. Manufacturer is Altiris, Inc., 588 West 400 South, Lindon, Utah 84042.

24. EXPORT LAWS. You acknowledge that the Software is subject to applicable import and export regulations of the United States and of the countries in which you do business. It is your responsibility to comply with the United States and other countries’ government requirements as they may be amended from time to time. Without limiting the generality of the foregoing, and regardless of any disclosure made by you to Altiris regarding an ultimate destination of the Software, you shall not export, re-export, transfer, divert, or disclose (directly or indirectly) the Software or any portion thereof to any country in violation of U.S. export laws or regulations or any other law, regulation, or government order. Note that Software containing encryption may be subject to additional restrictions.

25. CONSTRUCTION. No rule of strict construction shall apply against or in favor of either party in the construction and interpretation of this EULA.

26. ASSIGNMENT. You may not assign, sublicense, or transfer this EULA, the Software, or any rights or obligations hereunder without prior written consent of Altiris. Any such attempted assignment, sublicense, or transfer will be null and void. Altiris may terminate this EULA in the event of any such attempted assignment, sublicense, or transfer.

27. ENTIRE AGREEMENT. This EULA sets forth the entire understanding and agreement between the parties relating to its subject matter and may be amended only in a writing signed by both parties. Any waiver of or promise not to enforce any right under this EULA shall not be enforceable unless evidenced by a writing signed by the party making said waiver or promise. ANY TERMS AND CONDITIONS OF ANY PURCHASE ORDER OR OTHER DOCUMENT SUBMITTED BY YOU IN CONNECTION WITH THE SOFTWARE THAT ARE IN ADDITION TO, DIFFERENT FROM, OR INCONSISTENT WITH THE TERMS AND CONDITIONS OF THIS EULA ARE NOT BINDING ON ALTIRIS AND ARE INEFFECTIVE. NO VENDOR, DISTRIBUTOR, DEALER, RETAILER, SALES PERSON, OR OTHER PERSON IS AUTHORIZED BY ALTIRIS TO MODIFY THIS EULA OR TO MAKE ANY WARRANTY, REPRESENTATION, OR PROMISE THAT IS DIFFERENT THAN OR IN ADDITION TO THE WARRANTIES, REPRESENTATIONS, OR PROMISES EXPRESSLY SET FORTH IN THIS EULA.

LICENSE TYPES

The License Type purchased by you determines the license rights granted to you under this EULA. The License Type will be specified in the Fulfillment Confirmation provided to you. Such License Types include but are not limited to the following:

Not for Resale Demonstration (“NFR”) License – An NFR License is a special, limited evaluation license that is provided to and solely for use by authorized Altiris channel and OEM partners to assist in demonstrating the Software to prospective customers. Altiris reserves the right to terminate this license at any time and at its sole discretion. Additionally, in the event that the partner relationship with Altiris expires or is terminated or the partner no longer uses the license as intended, the NFR License will immediately terminate.

Node License -- Under the terms of a Node License, you may use the Software to manage an aggregate number of Nodes within your organization not to exceed the sum of your licensed nodal count. A “Node” is any asset under management by the Software. An asset is: (a) a physical device such as a computer, PDA, or server, or (b) a virtual device, such as an operating environment that may be running concurrently with another operating environment on a single physical device (e.g., VMware*, Virtual PC*, Virtual Server*). A Node License will be deemed consumed for a particular Software product once an asset (as defined above) has been managed by a particular Software product. An asset has been managed by a particular Software product once the Software product has (i) been run locally on an asset, (ii) remotely interacted with and/or received a response from an asset, (iii) configured or changed a setting of or migrated settings to or from an asset, or (iv) otherwise performed any management functionality that such particular Software product has been designed to perform with respect to an asset. You must purchase a sufficient number of Node Licenses to cover all Node Licenses consumed by a particular Software product.

Evaluation License – An Evaluation License is a limited license that provides you an opportunity to try the Software before buying a full license. A temporary activation key will be issued to you for this license specifying the number of licensed Nodes and the evaluation period. The Software may only be used for evaluation purposes and not for commercial use. The Software is licensed to you only for the specified evaluation period, which will begin on the date that the Software is first downloaded by or delivered to you. If no period of use is specified, then your right to use the Software shall terminate thirty (30) days from receipt of the Software, at which time you must return or destroy the Software.