PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SOFTWARE. BY DOWNLOADING, INSTALLING OR USING THIS SOFTWARE, 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 SOFTWARE.

 

This End User License 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)   "Computer" means an electronic device that accepts information in digital or similar form and manipulates it for a specific result based on a sequence of instructions.

 

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

 

(d)   "End User Software" means Software that is installed onto Computers or workstations where end users work.

 

(e)   "Order" means (i) a written order, schedule or quotation that is signed by Quest and Customer for the Software, or (ii) an order confirmation or registration confirmation that is sent from Quest to Customer following the purchase or registration of the Software by Customer.

 

(f)    "Permitted Number" means one (1), unless otherwise identified in an Order.

 

(g)   "Server Software" means Software that is installed onto any server Computer, such as a terminal service, Citrix server or other remote desktop or ICA application hosting Computer server.

 

(h)   "Software" means the object code version of the Software that is delivered pursuant to an Order, all Updates, and all copies of the foregoing.

 

(i)    "Updates" means corrections, enhancements and updates to the Software that Quest provides to Customer pursuant to this Agreement.

 

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) download, install, execute, access, run, or otherwise use the Software up to the Permitted Number of Computers, (ii) make a reasonable number of additional copies of the Software to be used solely for non-productive archival or passive disaster recovery purposes, provided such copies are kept in a secure location and are not used for production purposes unless the primary copy of the  Software is not being used for production purposes, 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"). Each License may be used by either (a) Customer solely to manage its own internal business operations, or (b) by a user of Customer's information technology services (each, a "Client") for the sole purpose of utilizing such services. Each License shall only be used by Customer in the country in which the Software is initially delivered to Customer. Customer agrees to be liable to Quest for the acts and omissions of Clients with respect to the Software. Additional license terms for the Software may be set forth in the Product Guide located at www.quest.com/productguide, which is hereby incorporated by reference.

 

(b)    Evaluation License. If the Software is obtained from Quest for evaluation purposes, Customer shall be granted a non-production License to use an evaluation version of the Software and the associated Documentation solely for Customer's own internal evaluation purposes for an evaluation period of up to fourteen (14) days from the date of delivery of the Software (the "Evaluation Period"). There is no fee for Customer's use of the evaluation 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 Maintenance Services for evaluation Licenses.

 

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 Software, Documentation or any part thereof. In addition, Customer may not (i) modify, translate, localize, adapt, create or prepare derivative works of, or create a patent based on the Software, Documentation or any part thereof, (ii) use the Software 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, or (iii) use any license keys or other license access devices not provided by Quest, including but not limited to "pirate keys", to install or access the Software. 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 Software 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 Software in accordance with the applicable open source licenses.

 

4.     Assignment and Transfer.

 

(a)   Assignment. Except as otherwise set forth in this Section, Customer may not, in whole or part, assign any part of this Agreement, the Software, the Licenses granted under this Agreement or any other rights provided hereunder without the prior written consent of Quest.  Any attempted assignment by Customer that is not permitted by this Agreement shall be null and void.

 

(b)   Transfer. Customer understands and agrees that, except as otherwise set forth herein or as otherwise agreed upon by the parties, (i) the Software is licensed as a one-time installation license for use on the Computer where the software is originally registered, (ii) Customer may not transfer, resell, rent, lease, loan or sublicense the Software or Documentation, or any part thereof, and (iii) Customer may not authorize all or any portion of the Software to be copied onto another Computer other than the original Computer where it was installed and registered. Notwithstanding the foregoing, (a) Server Software can be installed onto an unlimited number of terminal services, Citrix servers or other remote desktop or ICA compatible servers, (b) Server Software for RDP, ICA applications can be transferred, for no additional cost, onto an unlimited number of terminal services, Citrix servers or other remote desktop or ICA compatible servers, and (c) no more than one time during each active Maintenance Period, provided Customer has paid the applicable Maintenance Services fees for the Software, Customer may transfer the End User Software from one Computer to another by following the process set forth at https://support.quest.com/LicenseKey.aspx and complying with the requirement to remove and disable the End User Software on the original Computer prior to installing the End User Software and new license file on the new Computer; provided, however, that the transfer of End User Software is only permissible in circumstances where the original Computer on which the End User Software was installed and registered is upgraded to a new Computer, becomes un-operable due to a hardware failure, or is replaced following the termination or expiration of its lease.

 

5.     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 Software is 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 Software, (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.

 

6.     Payment and Taxes. Customer agrees to pay to Quest the fees specified in each Order, including any applicable shipping fees. For Orders placed online, Customer will be required to pay for the Software and/or Maintenance Services at the time of purchase. For any other Order, Customer will be invoiced promptly following delivery of the Software 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. Any amounts payable by Customer that are not paid in accordance with this Section 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 stated in an Order and/or maintenance renewal invoice may not include taxes. If Quest is required to pay sales, use, property, value-added or other taxes based on the Software or Maintenance Services provided under this Agreement or on Customer's use of the Software 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.

 

7.     Termination.  This Agreement or Licenses granted hereunder may be terminated (i) by mutual agreement of Quest and Customer, (ii) by Quest, if Customer or a Client 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 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 "Restrictions," "Payment and Taxes," "Termination," "Disclaimer of Warranty," "Infringement," "Limitation of Liability," "Nondisclosure," "Compliance Verification," and "General" Sections of this Agreement.

 

8.     Export. Customer acknowledges and agrees that the Software is 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 Software 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 the Software is prohibited by the Export Controls;

and (ii) Customer will not export, re-export or otherwise transfer the Software 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 Software 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.

9.   Maintenance Services. During any Maintenance Period and for the applicable fees, Quest shall make Maintenance Services available to Customer. "Maintenance Services" may include the following (as selected by Customer at the time of purchase or renewal): (i) responding to questions from Customer regarding the operational/technical aspects of the Software, (ii) responding to Software failures reported by Customer, and (iii) making Updates available to Customer if and when Quest makes such Updates generally available without charge to all other customers as part of Maintenance Services. Maintenance Services will be available during the hours of 8:00 a.m. to 5:00 p.m. Mountain Time, Monday through Friday, excluding legal holidays and other days when Quest offices are closed. Maintenance Services may be provided by email, through an online support forum, or via telephone. Quest will provide assistance in configuring and installing the Software, however Quest is not obligated to offer technical assistance involving products other than the Software. Quest will attempt to provide Maintenance Services in a timely manner; however Quest offers no guarantee whatsoever regarding the timeliness or results of Maintenance Services.

 

If Maintenance Services are selected by Customer, the first Maintenance Period will begin on the date of the Order and will continue for the period set forth in the 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") at the rates communicated to Customer by Quest, 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. Maintenance fees shall be due in advance of a Renewal Maintenance Period. Cancellation of Maintenance Services will not terminate Customer's rights to continue to use the Software.

 

10.  Disclaimer of Warranty. CUSTOMER UNDERSTANDS AND AGRESS THAT THE SOFTWARE AND MAINTENANCE SERVICES ARE MADE AVAILABLE BY QUEST AND ITS SUPPLIERS ON AN "AS IS" BASIS, WITHOUT ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND. QUEST AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES AND REPRESENTATION, WHETHER EXPRESS OR IMPLIED, REGARDING THE SOFTWARE AND THE MAINTENANCE SERVICES PROVIDED HEREUNDER, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IF IDENTIFIED IN AN ORDER, A LIMITED RIGHT OF RETURN MAY BE PROVIDED WITH THE SOFTWARE.

 

11.  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 (1) obtain for Customer the right to continue using the Software, (2) replace the Software with a functionally equivalent non-infringing product, (3) modify the Software so that it is non-infringing, or (4) 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.

 

12.  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 indirect, incidental, special or consequeNTIAL loss or damage of any kind, including but not limited toloss 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, 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 THE "software LICENSE," RESTRICTIONS," "export" OR "NONDISCLOSURE" SECTIONS OF THIS AGREEMENT, OR ANY OTHER VIOLATION OF THE OTHER PARTY'S INTELLECTUAL PROPERTY RIGHTS; (B) QUEST's express obligations under THE "INFRINGEMENT" SECTION OF THIS  AGREEMENT; (C) QUEST'S COSTS OF COLLECTING DELINQUENT AMOUNTS WHICH ARE NOT THE SUBJECT OF A GOOD FAITH DISPUTE; 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 SOFTWARE OR maintenance SERVICES THAT ARE THE SUBJECT OF THE breach. FOR MAINTENANCE SERVICES OR SOFTWARE SUBJECT TO RECURRING FEES, THE LIABILITY SHALL NOT EXCEED THE AMOUNT paid and/OR OWED (as applicable) FOR SUCH MAINTENANCE SERVICE OR SOFTWARE during the TWELVE (12) MONTHS PRECEDING THE breach.

 

Quest's Affiliates and suppliers shall be beneficiaries of this "Limitation of Liability" section; otherwise, no third party beneficiaries exist under this Agreement. Quest expressly excludes any and all liability to Customer's Clients and to any other third party.

 

13.  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 Software (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 Software, benchmark test results regarding the Software, 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.

 

14.   Compliance Verification. At Quest's request, but not more frequently than once per year, Customer shall provide a written report to Quest signed by an authorized representative listing Customer's then current deployment of the Software (the "Report"). The Report shall contain data sufficient to verify Customer's deployment of the Software within the quantities and maintenance release to which it is entitled. Customer will permit Quest to review Customer's deployment and use of the Software 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 deployment of the Software is found to be greater than contracted for Customer will be invoiced for the additional deployment 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 Software, 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.

 

15.  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)   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.

 

(c)   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. In addition, when Customer is a U.S. government entity, the language in Subsection 11 (ii) of this Agreement and Section 15 (h) of this Agreement shall not be applicable.

 

(d)   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 (i) shall only be for the sole purpose of, and only to the extent necessary for Quest to perform its obligations under this Agreement and (iii) may take place in any of the countries in which Quest and its Affiliates conduct business, including  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.

 

(e)   Notices. All notices provided hereunder shall be in writing and 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.

 

(f)    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.

 

(g)   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.

 

(h)   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.

 

(i)    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.

 

(j)    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).

 

(k)   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."

 

(l)    Legal Fees.  If any legal action is brought to enforce any rights or obligations under this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees, court costs and other collection expenses, in addition to any other relief it may be awarded.

 

(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 Software shall be FOB Shipping Point.