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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.

Freeware License Agreement

Quest Software, Inc.
Software License Agreement- Freeware

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.  The license granted by this Agreement may be used by no more than five (5) users.

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.	Payment and Taxes.  Licensee shall make any payments due to Quest in full within thirty (30) days from the date of the applicable invoice.  Any amounts payable by Licensee that remain unpaid after the due date shall be subject to a late charge equal to 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.   The fees listed may not include taxes; if Quest is required to pay sales, use, property, value-added or other taxes based on the Software or services provided under this Agreement or on Licensee’s use of Software or services, then such taxes shall be billed to and paid by Licensee.  This section does not apply to taxes based on Quest’s income.

6.	 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, 6, 8, 9, 10, 12, and 14 shall survive termination of this Agreement for any reason whatsoever.

7.	Export Law Assurances.  Licensee agrees to comply with all applicable export control laws, rules, regulations, restrictions and national security controls of the United States and other applicable foreign agencies (“Export Controls”) in connection with its use of the Software and agrees not export or re-export, or allow the export or re-export of the Software or any copy, portion or direct product of the foregoing, without first obtaining all consents or authorizations which may be required by the Export Controls. Licensee further agrees that (i) Licensee is not an entity restricted or prohibited by the Export Controls, (ii) the Software will not be used by any person restricted or prohibited by the Export Controls, and (iii) the Software will not be used or exported into (or to a national or resident of) Cuba, North Korea, Iran, Sudan, and Syria, or any other country to which the United States has embargoed goods and services.

8.	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.

9.	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.

10.	Nondisclosure. “Confidential Information” shall be defined to include Software, source code, object code, documentation and any proprietary tools, knowledge or methodologies disclosed by Quest to Licensee under or relating to this Agreement. Licensee shall observe complete confidentiality with respect to the Confidential Information, and shall use its best efforts and take all reasonable steps to protect the Confidential Information from any use, reproduction, publication, disclosure, or distribution except as specifically authorized by this Agreement.  Licensee shall promptly notify Quest of any known unauthorized use or disclosure of the Confidential Information and will cooperate with Quest in any litigation brought by Quest against third parties to protect its proprietary rights.

	11.	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.
12.	Usage Verification.	At Quest's request, but not more frequently than annually, Licensee shall furnish Quest with a document signed by Licensee's authorized representative verifying Licensee's usage of the Software. Licensee will permit Quest to review Licensee's deployment and use of the Software for compliance with the terms and conditions of this Agreement at Quest's expense.  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 Software is found to be greater than contracted for, Licensee will be invoiced for the additional licenses or license upgrades (based on the applicable units of measure, e.g., servers, server tiers or users) and the unpaid license fees shall be payable in accordance with this Agreement.  Additionally, if the unpaid fees exceed five percent (5%) of the license fees paid for the subject Software, then Licensee shall also pay Quest's reasonable costs of conducting the audit.

13.	Software Supplied to the 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.

14.	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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