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Toad^® for MySQL Freeware is a tool that improves the productivity of developers and administrators by providing an easy-to-use development environment. With Toad, developers and database administrators can use a familiar, proven tool to manage MySQL databases. Quest Software has an established track record for proven solutions that simplify, automate and improve the quality of application and database development. You can rely on Quest to provide you with an intuitive, graphical tool with all the features required to satisfy your growing MySQL needs.
Toad for MySQL is an official Quest Software Inc. Freeware Product.
Quest is now proud to present the freeware community the freeware for Toad for MySQL.
This license does not entitle Licensee to receive from Quest hard-copy documentation, technical support, telephone assistance, or enhancements or updates to the product.
Quest Software, Inc.

Transaction Product Agreement

Quest Software, Inc.
Transaction Product Agreement
Rev 2009-9-28

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS PRODUCT. BY DOWNLOADING, 
INSTALLING OR USING THIS PRODUCT, YOU INDICATE ACCEPTANCE OF AND AGREE TO THE TERMS
AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS 
OF THIS AGREEMENT, DO NOT DOWNLOAD, INSTALL OR USE THIS PRODUCT. THIS AGREEMENT 
DOES NOT SUPERSEDE ANY OTHER WRITTEN AGREEMENT BETWEEN YOU AND QUEST.  

This Transaction Product Agreement (the “Agreement”) is made between Quest Software, 
Inc., with its principal place of business located at 5 Polaris Way, Aliso Viejo, 
California, 92656 (“Quest”) and you, the customer (”Customer”). 

1. Definitions. Capitalized terms not defined in context shall have the meanings 
assigned to them below: 

(a) “Affiliate” means any legal entity controlling, controlled by, or under common 
control with a party to this Agreement, for so long as such control relationship exists.

(b) “Documentation” means the user manuals and documentation that Quest delivers 
with the Software, and all copies of the foregoing.

(c) “Hardware” means the hardware products purchased by Customer under this Agreement.

(d) “License Type” means the model by which the Software is licensed (e.g., by server, 
by mailbox, by managed user) as may be indicated in the applicable Order.

(e) “Partner” means a reseller or distributor that is under contract with Quest or 
another Partner and is authorized via the contract to resell the Products and/or 
Maintenance Services. 

(f) “Product Guide” means the document located at http://www.quest.com/productguide 
that contains the Product Terms. 

(g) “Product Terms” means the usage rights and other terms associated with each License 
Type or individual Product. The Product Terms for Software identified in an Order that 
is issued to Quest shall be as stated in the Order, or, if no Product Terms are stated 
in the Order, then the Product Terms for such Software shall be as stated in the 
Product Guide as of the date of the Order. The Product Terms for Software ordered from 
a Partner shall be as stated in the Product Guide as of the date of the Order.

(h) “Products” means the Software licenses and/or Hardware purchased by Customer under 
this Agreement.

(i) “Order” means the document by which Customer orders the Product(s) or, if Customer 
orders the Product(s) from Quest’s eStore (https://estore.quest.com), the process by 
which Customer orders the Product(s). Orders executed by Customer and Quest shall be 
governed solely by the terms of this Agreement and the applicable Order. Orders placed 
with Quest by Customer purchase order only and all Orders placed through a Partner shall
be governed solely by the terms of this Agreement. Any conflicting or additional terms 
in or accompanying an Order will not be binding on Quest unless Quest accepts such terms 
in writing. Each Order shall be the Customer’s irrevocable commitment to purchase and pay 
for the Products and/or Maintenance Services stated in the Order. 

(j) “Software” means the object code version of the software that is delivered pursuant 
to an Order as well as any corrections, enhancements, and upgrades to such software that 
Quest may provide to Customer pursuant to this Agreement, and all copies of the foregoing. 

2. Software License.  

(a) Internal Use License. Subject to the terms of this Agreement, Quest grants to 
Customer, and Customer accepts from Quest, a perpetual (unless otherwise set forth in 
an Order), non-exclusive, non-transferable (except as otherwise set forth herein) and 
non-sublicensable license to (i) install, execute, access, run, or otherwise use the 
quantities of each item of Software identified in the applicable Order within the 
parameters of the Product Terms associated with the applicable Product and License Type, 
(ii) make a reasonable number of additional copies of the Software to be used solely for 
non-productive archival or passive disaster recovery purposes, so long as neither the 
original and a copy nor two copies of the same Software are used at the same time, and 
(iii) make and use copies of the Documentation as reasonably necessary to support 
Customer’s authorized users in their use of the Software (collectively, “License”). 
Except for MSP Licenses (as defined below), each License shall be used by Customer 
solely to manage its own internal business operations as well as the business operations 
of its Affiliates. 

(b) MSP License. If an MSP License is specifically identified in an Order, Customer 
shall be granted a License to use the Software identified in the Order and the 
associated Documentation as a managed service provider (“MSP”) to provide software 
and systems management services, including, without limitation, application, operating 
system, and database implementation, performance tuning, and maintenance services 
(“Management Services”), for the benefit of a single named client (“Client”), pursuant 
to the terms of this Agreement and the MSP Use Terms in the Product Guide. 

(c) Evaluation License. If an Order indicates that Software is to be used for evaluation 
purposes or if the Software is otherwise obtained from Quest for evaluation purposes, 
Customer shall be granted a non-production License to use such Software and the 
associated Documentation solely for Customer’s own internal evaluation purposes for an 
evaluation period of up to thirty (30) days from the date of delivery of the Software, 
plus any extensions granted by Quest in writing (the "Evaluation Period"). There is no 
fee for Customer’s use of the Software for non-production evaluation purposes during the 
Evaluation Period, however, Customer is responsible for any applicable shipping charges 
or taxes which may be incurred, and any fees which may be associated with usage beyond 
the scope permitted herein. Customer’s opportunity for a free evaluation of the Software 
is limited to one Evaluation Period per release of the Software. Notwithstanding anything 
otherwise set forth in this Agreement, Customer understands and agrees that evaluation 
Software is provided “AS IS” and that Quest does not provide a Warranty or Maintenance 
Services for evaluation Licenses.

(d) Third Party Use. If Customer contracts with a third party who performs Software 
implementation, configuration, consulting or outsourcing services (“Service Provider”), 
the Service Provider may use the Software and Documentation Licensed by Customer 
hereunder solely for purposes of providing such services to Customer, provided that 
(i) Customer ensures that the Service Provider uses the Software and Documentation in 
accordance with the terms of this Agreement, (ii) the use of the Software and 
Documentation by the Service Provider will not violate the terms of the export 
restrictions set forth herein, and (iii) the Service Provider is not a Quest competitor. 
Customer shall be jointly and severally liable to Quest for the acts and omissions of 
its Service Providers in connection with their permitted use of the Software and 
Documentation. 

(e) Freeware. If a freeware version of Quest software (“Freeware”) is downloaded by 
Customer from http:///a Quest website, the terms of such use shall be governed by the 
applicable Freeware definition provided at: www.quest.com/productguide. 

3. Restrictions. Except to the extent expressly permitted by applicable law, and to 
the extent that Quest is not permitted by such applicable law to exclude or limit the 
following rights, Customer may not reverse engineer, decompile, disassemble, or attempt 
to discover or modify in any way the underlying source code of the Products, 
Documentation or any part thereof. In addition, Customer may not (i) modify, translate, 
localize, adapt, rent, lease, loan, create or prepare derivative works of, or create a 
patent based on the Products, Documentation or any part thereof, or (ii) resell the 
Products or Documentation or use the Products or Documentation in any commercial time 
share arrangement, in connection with the operation of any nuclear facilities, or for 
purposes which are competitive to Quest. Each permitted copy of the Software and 
Documentation made by Customer hereunder must contain all titles, trademarks, 
copyrights and restricted rights notices as in the original. Customer understands and 
agrees that the Products may work in conjunction with third party products and Customer 
agrees to be responsible for ensuring that it is properly licensed to use such third 
party products. Notwithstanding anything otherwise set forth in this Agreement, the 
terms and restrictions set forth herein shall not prevent or restrict Customer from 
exercising additional or different rights to any open source software that may be 
contained in or provided with the Products in accordance with the applicable open 
source licenses.

4. Reservation of Rights and Ownership. Quest reserves any and all rights, implied 
or otherwise, which are not expressly granted to Customer in this Agreement. Customer 
understands and agrees that (i) the Products are protected by copyright and other 
intellectual property laws and treaties, (ii) Quest and/or its suppliers own the title, 
copyright, and other intellectual property rights in the Products, (iii) the Software 
is licensed, and not sold, and (iv) this Agreement does not grant Customer any rights 
to Quest’s trademarks or service marks. 

5. Hardware. In the event Customer acquires Hardware under this Agreement, title to 
such Hardware shall pass to Customer upon shipment (unless such Hardware is rented, 
leased or loaned to Customer). 

6. Payment. Customer agrees to pay to Quest (or, if applicable, the Partner) the 
fees specified in each Order, including any applicable shipping fees. Customer will 
be invoiced promptly following delivery of the Products or prior to the commencement 
of any Renewal Maintenance Period and Customer shall make all payments due to Quest 
in full within thirty (30) days from the date of each invoice or such other period 
(if any) stated in an Order signed by Quest. Any amounts payable to Quest by Customer 
that remain unpaid after the due date shall be subject to a late charge of 1.5% of the 
invoice amount per month from the due date until such amount is paid, or the maximum 
rate permitted by law if less.   

7. Taxes. The fees stated in an Order may not include taxes. If Quest is required to 
pay sales, use, property, value-added or other taxes based on the Products or Maintenance 
Services provided under this Agreement or on Customer’s use of Products or Maintenance 
Services, then such taxes shall be billed to and paid by Customer. This Section does 
not apply to taxes based on Quest’s income.

8. Termination. This Agreement and/or the License(s) granted hereunder may be 
terminated (i) by mutual agreement of Quest and Customer, (ii) by Quest, if 
Customer or a Service Provider commits a material breach of this Agreement and 
fails to cure such breach to Quest’s reasonable satisfaction within thirty (30) 
days following receipt of Quest’s notice thereof, or (iii) by Customer for any 
reason upon thirty (30) days written notice to Quest. Upon termination of this 
Agreement or expiration or termination of a License for any reason, all rights 
granted to Customer for the applicable License(s) shall immediately cease and 
Customer shall immediately: (i) cease using the applicable Software and 
Documentation, (ii) return the applicable Software to Quest together with all 
Documentation and other materials associated with the Software and all copies 
of any of the foregoing, or destroy such items, (iii) cease using the Maintenance 
Services associated with the applicable License(s), (iv) pay Quest or the applicable 
Partner all amounts due and payable up to the date of termination, and (v) give 
Quest a written certification that Customer has complied with all of the foregoing 
obligations. Termination of this Agreement or a License shall be without prejudice 
to any other remedies that the terminating party may have under law, subject to the 
limitations and exclusions set forth in this Agreement. Any provision of this Agreement 
that requires or contemplates execution after termination of this Agreement or 
expiration of a License is enforceable against the other party and their respective 
successors and assignees notwithstanding termination or expiration, including, without 
limitation, the “Payment,” “Taxes,” “Termination,” “Warranty Disclaimer,” “Infringement,” 
"Limitation of Liability," "Nondisclosure," “Usage Verification,” and “General” Sections 
of this Agreement.

9. Export. Customer acknowledges and agrees that the Products are subject to the 
export control laws, rules, regulations, restrictions and national security controls 
of the United States and other applicable foreign agencies (the "Export Controls"), 
and agrees not to export or re-export, or allow the export or re-export of the Products 
or any copy, portion or direct product of the foregoing in violation of the Export 
Controls. Customer hereby represents that (i) Customer is not an entity or person to 
which shipment of Products is prohibited by the Export Controls; and (ii) Customer will 
not export, re-export or otherwise transfer the Products to (a) any country subject to a 
United States trade embargo, (b) a national or resident of any country subject to a 
United States trade embargo, (c) any person or entity to which shipment of Products 
is prohibited by the Export Controls, or (d) anyone who is engaged in activities 
related to the design, development, production, or use of nuclear materials, nuclear 
facilities, nuclear weapons, missiles or chemical or biological weapons. 


10. Maintenance. During any Maintenance Period and for the applicable fees, Quest shall 
make available to Customer the Maintenance Services for the Software as defined in this 
Section. The first Maintenance Period begins on the date of delivery of the Software 
following an Order and ends twelve (12) months thereafter unless otherwise set forth 
in the applicable Order (the “Initial Maintenance Period”). Following the Initial 
Maintenance Period, Maintenance Services shall automatically renew for additional terms 
of twelve (12) months (each, a “Renewal Maintenance Period”) unless the renewal has been 
cancelled by either party giving written notice to the other at least sixty (60) days 
prior to the first day of the applicable Renewal Maintenance Period. Cancellation of 
Maintenance Services will not terminate Customer’s rights to continue to use the 
Software.Maintenance fees shall be due in advance of a Renewal Maintenance Period and 
shall be subject to the payment requirements set forth in this Agreement. The procedure 
for reinstating Maintenance Services after it has lapsed is posted at 
http://support.quest.com/Maintenance_Service.asp. Except as otherwise stated in the 
Product Guide, “Maintenance Services” shall be available via the Internet, e-mail, or 
telephone and shall mean the following: 

(a) Quest shall make available to Customer new versions and releases of the Software, 
including Software corrections, enhancements and upgrades, if and when Quest makes 
them generally available without charge as part of Maintenance Services. 

(b) Quest shall respond to unlimited communications from Customer that report Software 
failures not previously reported to Quest by Customer. Nothing in the foregoing shall 
operate to limit or restrict follow up communication by Customer regarding Software 
failures. 
                 
(c) Quest shall respond to requests from Customer’s technical coordinators for assistance 
with the operational/technical aspects of the Software; provided that Quest shall have 
the right to limit such responses if Quest determines, in its sole reasonable discretion, 
that on-site consulting services  would be more appropriate to address the scope and 
nature of the requests. Any such onsite consultation would be pursuant to a services 
agreement as agreed upon by the parties.
 
(d) Customer shall have access to Quest’s Support Web site at http://support.quest.com 
(“SupportLink”).

(e) Maintenance Services are available during standard support hours (“Business Hours”) 
as indicated on SupportLink. In addition, Customer may purchase Business Critical 
Support (i.e. 24x7 Severity Level 1 support) for certain Software. The list of Software 
for which Business Critical Support is available and/or required is set forth on 
SupportLink.   

(f) During Business Hours, Quest will respond within one (1) hour to a call from Customer 
which reports a critical Software condition (a “Severity Level 1 Problem”). Customer must 
use commercially reasonable efforts to provide Quest with the necessary remote access to 
facilitate the identification and resolution of a Severity Level 1 Problem. Quest’s 
ability to identify and resolve a Severity Level 1 Problem may be delayed without such 
remote access. 

(g) The Maintenance Services for those Software products that Quest has obtained through 
an acquisition or merger may, for a period of time following the effective date of the 
acquisition or merger, be governed by terms other than those in this Section 10. The 
applicable different terms, if any, shall be stated on SupportLink.

11. Warranties.  

(a) Software Warranty. Quest warrants that, for a period of thirty (30) days following 
the initial delivery of Software pursuant to an Order (the “Warranty Period”), (i) the 
media provided by Quest, if any, on which the Software is recorded will be free from 
material defects in materials and workmanship under normal use, (ii) the operation of 
the Software, as provided by Quest, will substantially conform to the Documentation 
applicable to such Software, and (iii) the Software as delivered by Quest does not 
contain any viruses, worms, Trojan Horses, or other malicious or destructive code 
designed by Quest to allow unauthorized intrusion upon, disabling of, or erasure of 
the Software (however, the Software may contain a key limiting use of the Software 
to within the scope of License granted, and license keys issued by Quest for temporary 
use are time-sensitive) (the “Warranties”). Customer must give written notice to Quest 
of any breach of the Warranties no later than five days following the expiration of the 
Warranty Period.  

Customer’s exclusive remedies, and Quest’s sole obligations, for any such breach of these 
Warranties shall be as follows: (a) for the warranty in subsection (i), Quest shall, at 
its expense, replace any defective media; (b) for the warranty in subsection (ii), Quest 
shall correct or provide a workaround for reproducible errors in the Software that cause 
a breach of the warranty within a reasonable time considering the severity of the error 
and its effect on Customer, or, at Quest’s option, refund the license fees paid for the 
nonconforming Software upon return of such Software to Quest and termination of the 
related License(s) hereunder; and (c) for the warranty in subsection (iii), Quest shall 
provide a copy of the Software that is in conformance with such warranty. The foregoing 
Warranties shall not apply to any non-conformance (i) that Quest cannot recreate after 
exercising commercially reasonable efforts to attempt to do so; (ii) caused by misuse 
of the Software or by using the Software in a manner that is inconsistent with this 
Agreement or the Documentation; or (iii) arising from the modification of the Software 
by anyone other than Quest. 

(b) Hardware Warranty. Hardware shall be warranted in accordance with the warranty 
document delivered with the Hardware and/or included on the hardware manufacturers’ 
website. In the event Customer acquires Hardware that is delivered with a third party 
warranty (“Third Party Warranty”), Customer will rely solely on the applicable third 
party for all Third Party Warranty obligations. 

(c) Warranty Disclaimer. THE EXPRESS WARRANTIES AND REMEDIES SET FORTH IN THIS SECTION 
ARE THE ONLY WARRANTIES AND REMEDIES PROVIDED BY QUEST HEREUNDER. TO THE MAXIMUM EXTENT 
PERMITTED BY APPLICABLE LAW, ALL OTHER WARRANTIES OR REMEDIES ARE EXCLUDED, WHETHER 
EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, 
FITNESS FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT, SATISFACTORY QUALITY, AND ANY 
WARRANTIES ARISING FROM USAGE OF TRADE OR COURSE OF DEALING OR PERFORMANCE. QUEST DOES 
NOT WARRANT UNINTERRUPTED OR ERROR-FREE OPERATION OF THE PRODUCTS.

12. Infringement. Quest will at its own expense defend or settle any claim, suit, 
action, or proceeding brought against Customer by a third party to the extent it is 
based on an allegation that the Software directly infringes any patent, copyright, 
trademark, or other proprietary right enforceable in the country in which the Software 
is delivered to Customer, or misappropriates a trade secret in such country (a “Claim”).  
Additionally, Quest shall pay any judgments finally awarded against Customer under a 
Claim or any amounts assessed against Customer in any settlements of a Claim, and 
reasonable administrative costs or expenses, including without limitation reasonable 
attorneys’ fees, necessarily incurred by Customer in responding to the Claim. Quest’s 
obligations under this Section are conditioned upon Customer (i) giving prompt written 
notice of the Claim to Quest; (ii) permitting Quest to retain sole control of the 
investigation, defense or settlement of the Claim, and (iii) providing Quest with such 
cooperation and assistance as Quest may reasonably request from time to time in 
connection with the investigation, defense or settlement of the Claim. Quest shall 
have no obligation hereunder to defend Customer against any Claim (a) resulting from 
use of the Software other than as authorized in this Agreement, (b) resulting from 
a modification of the Software other than by Quest, or (c) based on Customer’s use 
of the Software after Quest recommends discontinuation because of possible or actual 
infringement, (d) based on Customer’s use of a superseded or altered release of 
Software if the infringement would have been avoided by use of a current or unaltered 
release of the Software made available to Customer, or (e) to the extent the Claim 
arises from or is based on the use of the Software with other products, services, 
or data not supplied by Quest if the infringement would not have occurred but for 
such use. If Customer’s use of the Software is enjoined as a result of a Claim, 
Quest shall, at its expense and option either (i) obtain for Customer the right to 
continue using the Software, (ii) replace the Software with a functionally equivalent 
non-infringing product, (iii) modify the Software so that it is non-infringing, or 
(iv) accept the return of the infringing Software and refund the license fee paid for 
the infringing Software, pro-rated over a sixty (60) month period from the date of 
delivery of the Software following an  Order . This Section states the entire liability 
of Quest, and Customer’s sole and exclusive remedy, with respect to a Claim. 

13. Limitation of Liability. EXCEPT FOR (A) ANY BREACH OF THE "RESTRICTIONS" OR 
"NONDISCLOSURE" SECTIONS OF THIS AGREEMENT, (B) AMOUNTS CONTAINED IN JUDGMENTS OR 
SETTLEMENTS WHICH QUEST IS LIABLE TO PAY ON BEHALF OF CUSTOMER UNDER THE “INFRINGEMENT” 
SECTION OF THIS AGREEMENT, OR (C)  ANY LIABILITY TO THE EXTENT LIABILITY MAY NOT BE 
EXCLUDED OR LIMITED AS A MATTER OF LAW, IN NO EVENT SHALL QUEST, ITS AFFILIATES, OR 
SUPPLIERS, OR CUSTOMER BE LIABLE FOR  ANY LOSS OF REVENUE, LOSS OF ACTUAL OR ANTICIPATED 
PROFITS, LOSS OF BUSINESS, LOSS OF CONTRACTS, LOSS OF GOODWILL OR REPUTATION, LOSS OF 
ANTICIPATED SAVINGS, LOSS OF, DAMAGE TO OR CORRUPTION OF DATA, OR FOR ANY INDIRECT, 
INCIDENTAL, SPECIAL OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND, IN EACH CASE HOWSOEVER 
ARISING, WHETHER SUCH LOSS OR DAMAGE WAS FORESEEABLE OR IN THE CONTEMPLATION OF THE 
PARTIES AND WHETHER ARISING IN OR FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), 
BREACH OF STATUTORY DUTY, OR OTHERWISE.EXCEPT FOR (A) ANY BREACH OF CUSTOMER’S PAYMENT 
OBLIGATIONS; (B) ANY BREACH OF THE "SOFTWARE LICENSE," RESTRICTIONS," “EXPORT” OR 
"NONDISCLOSURE" SECTIONS OF THIS AGREEMENT, OR ANY OTHER VIOLATION OF THE OTHER PARTY’S 
INTELLECTUAL PROPERTY RIGHTS; (C) QUEST’S EXPRESS OBLIGATIONS UNDER THE “INFRINGEMENT” 
SECTION OF THIS  AGREEMENT; OR (D) ANY LIABILITY TO THE EXTENT LIABILITY MAY NOT BE 
EXCLUDED OR LIMITED AS A MATTER OF LAW, THE MAXIMUM AGGREGATE AND CUMULATIVE LIABILITY 
OF QUEST, ITS AFFILIATES AND SUPPLIERS, AND CUSTOMER UNDER THIS AGREEMENT, WHETHER 
ARISING IN OR FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY 
DUTY, OR OTHERWISE, SHALL NOT EXCEED THE FEES PAID AND/OR OWED (AS APPLICABLE) BY 
CUSTOMER FOR THE PRODUCTS OR MAINTENANCE SERVICES THAT ARE THE SUBJECT OF THE CLAIM. 
FOR MAINTENANCE SERVICES OR A PRODUCT SUBJECT TO RECURRING FEES, THE LIABILITY SHALL 
NOT EXCEED THE AMOUNT PAID AND/OR OWED (AS APPLICABLE) FOR SUCH MAINTENANCE SERVICE 
OR PRODUCT DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.

Quest’s Affiliates and suppliers shall be beneficiaries of this “Limitation of 
Liability" section and Customer’s Service Providers are entitled to the rights 
granted under the "Third Party Use" section of this Agreement; otherwise, no third 
party beneficiaries exist under this Agreement. Quest expressly excludes any and 
all liability to Customer’s Service Providers, Clients and to any other third party.

14. Nondisclosure. “Confidential Information” means information or materials disclosed 
by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) that 
are not generally available to the public and which, due to their character and nature, 
a reasonable person under like circumstances would treat as confidential, including, 
without limitation, the Disclosing Party’s personal data, financial information, 
marketing information, trade secrets, know-how, proprietary tools, proprietary 
knowledge and proprietary methodologies. Confidential Information of Quest further 
includes this Agreement, the Products (in source code and/or object code form), 
the pricing and discounting offered by Quest to Customer hereunder, information 
regarding the functionality and performance of the Products, benchmark test results 
regarding the Products, and any Software license keys provided to Customer. 
Additionally, Confidential Information shall include “Individually Identifiable 
Health Information” (as that term is defined in 45 CFR § 164.501) or “Nonpublic 
Personal Information” (as that term is defined in Title V of the Gramm-Leach-Bliley 
Act of 1999) that Quest may come into contact with under this Agreement. Confidential 
Information shall not include information or materials that (a) were, on the date 
of disclosure, generally known to the public; (b) become generally known to the 
public other than as a result of the act or omission of the Receiving Party; 
(c) were known to the Receiving Party without an obligation of confidentiality 
prior to that party receiving the same from the Disclosing Party; (d) the Receiving 
Party lawfully received from a third party without that third party’s breach of 
agreement or obligation of trust; or (e) are or were independently developed by 
the Receiving Party without access to or use of the Disclosing Party’s 
Confidential Information. Additionally, it shall not be a breach of this Section 
for the Receiving Party to disclose the Disclosing Party’s Confidential Information 
as may be required by operation of law or legal process, provided that the Receiving 
Party provides prior notice of such disclosure to the Disclosing Party unless 
expressly prohibited from doing so by a court, arbitration panel or other legal 
authority of competent jurisdiction. The Receiving Party shall not (1) make the 
Disclosing Party’s Confidential Information available to any Affiliates, directors, 
officers, employees, consultants or representatives (collectively, the 
“Representatives”) who do not have a “need to know” in order to carry out the 
purposes of this Agreement; (2) otherwise disclose the Disclosing Party’s Confidential 
Information to any third party without the written consent of the Disclosing Party; 
or (3) use the Disclosing Party’s Confidential Information for any purpose other 
than as contemplated by this Agreement. The Receiving Party shall inform its 
Representatives of the confidential nature of the Disclosing Party’s Confidential 
Information and the requirements regarding restrictions on disclosure and use as 
set forth in this Section and shall disclose the Disclosing Party’s Confidential 
Information only to its Representatives who are legally bound to protect the 
Confidential Information under terms at least as restrictive as those provided 
herein. The Receiving Party agrees to protect the Disclosing Party’s Confidential 
Information from unauthorized use or disclosure by exercising at least the same 
degree of care it uses to protect its own similar information, but in no event 
less than a reasonable degree of care. The Receiving Party shall be liable to the 
Disclosing Party for any disclosure or other breach in violation of this Agreement 
by any of its Representatives. The Receiving Party shall promptly notify the 
Disclosing Party of any known unauthorized use or disclosure of the Disclosing 
Party’s Confidential Information and will cooperate with the Disclosing Party 
in any litigation brought by the Disclosing Party against third parties to 
protect its proprietary rights.

15. Usage Verification. At Quest's request, but not more frequently than once per year, 
Customer shall furnish Quest with a document signed by an authorized representative 
verifying Customer's installations and usage of the Products. Customer will permit 
Quest to review Customer's deployment and use of the Products for compliance with the 
terms and conditions of this Agreement. Any such reviews shall be scheduled at least 
fifteen (15) days in advance, shall be conducted during normal business hours at 
Customer's facilities, and shall not unreasonably interfere with Customer's business 
activities.  If Customer's use of the Products is found to be greater than contracted for 
Customer will be invoiced for the additional use and the unpaid fees shall be payable in 
accordance with this Agreement. Additionally, if the unpaid fees exceed five percent 
(5%) of the fees paid for the subject Products, then Customer shall also pay Quest's 
reasonable costs of conducting the audit. This Section shall not limit or restrict 
any other rights  or remedies of Quest that are otherwise set forth in this Agreement 
or available at law.

16. General.  

(a) Governing Law and Venue. This Agreement shall be governed by and construed in 
accordance with the laws of the State of California, without giving effect to any 
conflict of laws principles that would require the application of laws of a different 
state. The parties agree that neither the United Nations Convention on Contracts for 
the International Sale of Goods, nor the Uniform Computer Information Transaction Act 
(UCITA) shall apply to this Agreement, regardless of the states in which the parties 
do business or are incorporated.  Any action seeking enforcement of this Agreement or 
any provision hereof shall be brought exclusively in the state or federal courts 
located in the County of Orange, State of California, United States of America. Each 
party hereby agrees to submit to the jurisdiction of such courts. 

(b) Assignment. Except as otherwise set forth herein, Customer shall not, in whole 
or part, assign or transfer any part of this Agreement or any rights hereunder 
without the prior written consent of Quest. Any attempted transfer or assignment by 
Customer that is not permitted by this Agreement shall be null and void.  

(c) Severability. If any provision of this Agreement shall be held by a court of 
competent jurisdiction to be contrary to law, such provision will be enforced to the 
maximum extent permissible and the remaining provisions of this Agreement will remain 
in full force and effect. Notwithstanding the foregoing, the terms of this Agreement 
that limit, disclaim, or exclude warranties, remedies or damages are intended by the 
parties to be independent and remain in effect despite the failure or unenforceability 
of an agreed remedy. The parties have relied on the limitations and exclusions set 
forth in this Agreement in determining whether to enter into it.

(d) Use by U.S. Government. The Software is a “commercial item” under FAR 12.201. 
Consistent with FAR section 12.212 and DFARS section 227.7202, any use, modification, 
reproduction, release, performance, display, disclosure or distribution of the Software 
or Documentation by the U.S. government shall be governed solely by the terms of this 
Agreement and shall be prohibited except to the extent expressly permitted herein.

(e) Personal Data. Customer hereby acknowledges and agrees that Quest’s performance 
of this Agreement may require Quest to process or store personal data of Customer, 
its employees and Affiliates and to transmit such data internally within Quest or to 
Quest Affiliates.  Such processing, storage, and transmission shall only be to the 
extent necessary for, and for the sole purpose of, enabling Quest to perform its 
obligations under this Agreement and may take place in any of the countries in which 
Quest and its Affiliates conduct business, which may include  countries outside of 
the European Economic Area. Quest hereby affirms to Customer that Quest Software, Inc. 
currently abides by the safe harbor framework as set forth by the U.S. Department of 
Commerce regarding the collection, use and retention of data from the European Union.

(f) Notices. All notices provided hereunder shall be in writing, delivered personally, 
sent by facsimile or e-mail, or mailed by first class mail, postage prepaid, addressed 
to the legal department of the respective party or to such other address as may be 
specified in an Order or in writing by either of the parties to the other in accordance 
with this Section.  All notices, requests, demands or communications shall be deemed 
effective upon personal delivery or four (4) days following deposit in the mail in 
accordance with this paragraph.

(g) Disclosure of Customer Status. Quest may include Customer in its listing of customers 
and, upon written consent by Customer, announce Customer's selection of Quest in its 
marketing communications. 

(h) Waiver. Performance of any obligation required by a party hereunder may be waived 
only by a written waiver signed by an authorized representative of the other party, 
which waiver shall be effective only with respect to the specific obligation described 
therein. Any waiver or failure to enforce any provision of this Agreement on one occasion 
will not be deemed a waiver of any other provision or of such provision on any other occasion.

(i) Injunctive Relief. Each party acknowledges and agrees that in the event of a 
material breach of this Agreement, including but not limited to a breach of the 
“Software License," “Restrictions” or "Nondisclosure" Sections of this Agreement,
the non-breaching party shall be entitled to seek immediate injunctive relief, 
without limiting its other rights and remedies.

(j) Force Majeure. Each party will be excused from performance for any period during 
which, and to the extent that, it is prevented from performing any obligation or service 
as a result of causes beyond its reasonable control, and without its fault or negligence, 
including without limitation, acts of God, strikes, lockouts, riots, acts of war, epidemics, 
communication line failures, and power failures. Nothing in the foregoing shall be deemed 
to relieve Customer or its Affiliates of its obligation to pay fees owed under this Agreement.

(k) Equal Opportunity. Quest Software Inc. is a federal contractor and Affirmative Action 
employer (M/F/D/V) as required by the Equal Opportunity clause C.F.R. § 60-741.5(a).

(l) Headings. Headings in this Agreement are for convenience only and do not affect the 
meaning or interpretation of this Agreement. This Agreement will not be construed either 
in favor of or against one party or the other, but rather in accordance with its fair 
meaning. When the term “including” is used in this Agreement it will be construed in 
each case to mean “including, but not limited to.”

(m) Entire Agreement. This Agreement is intended by the parties as a final 
expression of their agreement with respect to the subject matter hereof and may not 
be contradicted by evidence of any prior or contemporaneous agreement unless such 
agreement is signed by both parties. In the absence of such an agreement, this 
Agreement shall constitute the complete and exclusive statement of the terms and 
conditions and no extrinsic evidence whatsoever may be introduced in any judicial 
proceeding that may involve the Agreement. In the event of a conflict between the 
terms of this Agreement and the terms contained in an Order, the terms in the Order 
shall only control if the Order is signed by both Quest and Customer; otherwise, 
the terms of this Agreement shall control. Neither this Agreement, nor an Order, 
may be modified or amended except by a writing executed by a duly authorized 
representative of each party.  No other act, document, usage or custom shall be 
deemed to amend or modify this Agreement or an Order. Delivery of Products shall 
be FOB Shipping Point.
I AGREE