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The Toad for SQL Server Freeware version may be used for a maximum of five (5) users within Licensee's organization. For more than five (5) users within an organization, please contact Quest to purchase licenses of Commercial version of Toad for SQL Server. This license does not entitle Licensee to receive hard-copy documentation, technical support, telephone assistance, or enhancements or updates to the Product from Quest Software.
Quest Software, Inc.

Transaction Product Agreement

Quest Software, Inc.
Transaction Product Agreement

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

This agreement (the “Agreement”) is made between Quest Software, Inc., (“Quest”) and you, the customer (“Licensee”).  The terms and conditions of this Agreement are 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.  This Agreement may not be modified except by a writing executed by both parties hereto.

1. 	Software.  For the purpose of this Agreement, Software is defined as the machine-readable object code version of the licensed computer software program(s) downloaded and/or installed pursuant to this Agreement and, if Quest provides such with the Software, the published and generally available user manuals and documentation.

2.	License.	  Quest grants Licensee a non-exclusive and non-transferable perpetual license to use for personal or internal business purposes the executable code version of the Software. Notwithstanding the foregoing, Quest may change the scope of use restrictions under this Section 2 at any time.  This license does not entitle Licensee to receive from Quest hard-copy documentation, technical support, telephone assistance, or enhancements or updates to the Software.

3.	Restrictions.  Quest reserves any and all rights, implied or otherwise, which are not expressly granted to Licensee hereunder, and retains all rights, title and interest in and to the Software.  Licensee agrees that it has no right whatsoever to modify the Software or any portion thereof in any manner.  Licensee shall not reverse engineer, decompile, disassemble, modify, adapt, rent, lease, loan, create or prepare derivative works based upon the Software or any part thereof.  Licensee may not use the Software as a managed service provider, as an application service provider, to perform consulting or training services for a third party, or in any commercial time share arrangement.  Licensee may not resell the Software. Licensee shall not assign the Software to a third party for use in managing Licensee’s environment without the prior written consent of Quest.

4.	Assignment.  Licensee may not assign or transfer its rights or obligations under this Agreement without prior written approval by Quest.  Any purported assignment or transfer without Quest’s consent shall be null and void.

5.	 Termination.  This Agreement or an individual license granted hereunder may be terminated (a) by mutual agreement of Quest and Licensee, (b) by Licensee, upon thirty (30) days prior written notice to Quest, and (c) by Quest, if Licensee or its Affiliate breaches this Agreement and fails to cure such breach to Quest’s reasonable satisfaction within thirty (30) days following receipt of Quest’s notice thereof. Upon any termination of this Agreement or a license granted hereunder, Licensee shall immediately cease use of the applicable Software and certify in writing to Quest within thirty (30) days after termination that Licensee has destroyed or returned to Quest such Software and all copies thereof.   Termination of this Agreement or a license granted hereunder shall not limit either party from pursuing any remedies available to it, including injunctive relief, or relieve Licensee of its obligation to pay all fees that have accrued or have become payable by Licensee hereunder.  Sections 3, 5, 7, 8, 9, 11, and 13 shall survive termination of this Agreement for any reason whatsoever.

6.	Export Law Assurances.  Except to the extent expressly permitted by applicable law, and to the extent that Quest is not permitted by that applicable law to exclude or limit the following rights, Licensee 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, Licensee 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 Licensee hereunder must contain all titles, trademarks, copyrights and restricted rights notices as in the original. Licensee understands and agrees that the Products may work in conjunction with third party products and Licensee 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 Licensee 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.

7.	Disclaimer of Warranty.	THE SOFTWARE IS PROVIDED FREE OF CHARGE, AND, THEREFORE, ON AN "AS IS" AND UNSUPPORTED BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES THAT IT IS FREE OF DEFECTS, VIRUS FREE, ABLE TO OPERATE ON AN UNINTERRUPTED BASIS, MERCHANTABLE, FIT FOR A PARTICULAR PURPOSE OR NON-INFRINGING. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NO USE OF THE SOFTWARE IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.

8.	Limitation of Liability and Damages.  IN NO EVENT WILL QUEST, ITS SUBSIDIARIES OR ANY OF THE LICENSORS, DIRECTORS, OFFICERS, EMPLOYEES OR AFFILIATES OF ANY OF THE FOREGOING BE LIABLE TO LICENSEE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND DATA AND THE LIKE), WHETHER FORESEEABLE OR UNFORESEEABLE, OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES, REGARDLESS OF THE BASIS OF THE CLAIM AND EVEN IF QUEST OR A QUEST REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.  QUEST’S CUMULATIVE LIABILITY FOR DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN $500.  NO ACTION MAY BE BROUGHT AGAINST QUEST LATER THAN ONE (1) YEAR FROM THE TERMINATION OF THIS AGREEMENT.

9.	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 Licensee hereunder, information regarding the functionality and performance of the Products, benchmark test results regarding the Products, and any Software license keys provided to Licensee. 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.

	10.	Injunctive Relief. Licensee hereby expressly agrees that Quest, in addition to any other rights or remedies which Quest may possess, shall be entitled to injunctive and other equitable relief without having to post bond or other security to prevent a material breach or continuing material breach of this Agreement.
11.	Usage Verification.  At Quest's request, but not more frequently than once per year, Licensee shall furnish Quest with a document signed by an authorized representative verifying Licensee's installations and usage of the Products. Licensee will permit Quest to review Licensee'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 Licensee's facilities, and shall not unreasonably interfere with Licensee's business activities.  If Licensee's use of the Products is found to be greater than contracted for Licensee 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 Licensee 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.

12.	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.

13.	General.	This Agreement will be construed under the laws of the State of California, except for that body of law dealing with conflicts of law and the U.N. Convention of Contracts for the Sale of International Goods, which shall not apply.  In the event there is a dispute concerning the subject matter of this Agreement, the proper venue shall be the County of Orange, State of California, United States of America.  Each party hereby waives opposition to jurisdiction in such court.  Service of process can be done in accordance with the governing law of the Agreement. Performance of any obligation required by a party hereunder may be waived only by a written waiver signed by the other party, which waiver shall be effective only with respect to the specific obligation described therein.  If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, that provision will be enforced to the maximum extent permissible and the remaining provisions of this Agreement will remain in full force and effect.
I AGREE Please do not look at the file date to determine if an update with a new expiration date has been posted. Posts will be made to the TOADSS Yahoo Groups when updates are made available.
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