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Terms and Conditions

Existing Subscribers, and Partners, with effective Subscription and Services Agreements executed after 15th October 2014 (20140914UTC) will be subject to the terms and conditions of this Agreement and for any additional product purchased via the ShadowNMS (or subsidiary services) on-line shopping cart.

This Subscription and Services Agreement is between ShadowNMS, a product name for a service provided by Shadowcat Systems Limited and the Subscriber who executes this Agreement. This Agreement shall govern the Subscriber’s initial purchase on the Effective Date as well as any future purchases made by the Subscriber with reference to this Agreement. The Agreement permits Subscriber to purchase Subscriptions, Extensions and Services from Shadowcat Systems under the ShadowNMS name. This agreement sets forth the basic terms and conditions under which the Products are delivered. ShadowNMS’s Subscription and Services Agreement is conditioned on the Subscriber’s acceptance without modification of the terms, conditions, and notices contained herein. Subscriber Permitted Use of Shadowcat Systems' Products constitutes Subscriber agreement to all such terms, conditions, and notices.

A device and benchmark limit applies to the product being purchased you may not exceed the monitored device limit granted to you under the Subscription purchased. You are responsible for the security of your passwords and for any use of your account. You must immediately notify us of any unauthorised use by contacting us via email. Since the Agreement is a term contract, the Subscription and Services Agreement is effective as of the date when the subscription purchase transaction is accepted by Shadowcat Systems for on-line purchases, or the Effective Date when purchased using a written customer invoice.

Definitions

“Device” an autonomous computing device, including but not limited to, a server, virtual machine, workstation, desktop or laptop, storage device, network device or a standalone environmental sensor or security device that is monitored by the Software. The number of devices to be monitored is not affected by the manner in which monitoring data is collected.

"Benchmark" is a single polling method performed on a device. The system will always perform an ICMP request, which we call the 'Heart Beat" to establish that a device exists and report this as the initial benchmark (though this is not considered part of your total number of Benchmarks). Any device registered for use must be able to accept and return an ICMP request as designated under the appropriate RFCs. See: RFC792 and Wikipedia: ICMP.*

*ICMP is the standard manner in which to verify the availability of a device, it is commonly referred to as a ping. It is possible that you may wish to 'turn off' the ICMP request. Or you may have disabled it as part of administrative practices. This is allowed, though we consider it not common practice, we can work with you in these situations to ensure that we monitor without the basic Heart Beat.

“Documentation” means any technical specification documentation generally made available.

“Start Date” means the date when the subscription purchase transaction is accepted for on-line purchases, or the Effective Date as indicated on the customer invoice.

“Open Source Software” means any software made publicly available in source code or object code form, in each case subject to a separate license that accompanies such code. Any Open Source Software that is delivered to Subscriber as part of the service includes the license agreement associated with such Open Source Software. The terms and conditions governing Subscriber’s use of the Open Source Software are set forth in the respective license for such Open Source Software and not in this Agreement. All source code for Open Source software will be shipped via a link to the latest download (tarball or repo) so that the most current stable and development releases can be obtained.

“Permitted Use” means use by Subscriber for internal business purposes. In the case of hosted service resale and service rollout a separate Partner agreement will be used.

"Product" shall refer to an item of software, process or electronically transmitted data that is either: (i) created by Shadowcat Systems, its subsidiaries and partners, for the use of in its services; (ii) created by a third party and used under an appropriate licence; (iii) an electronically transmitted system for remote interaction such as a website etc.

“Professional Services” means the professional consulting services to be provided by Shadowcat Systems to a subscriber or partner under a Shadowcat Systems Statement of Work and/or a contract for consultation, support or development.

“SOW” refers to a Statement of Work. A Statement of Work is a written document of work to be undertaken by Shadowcat Systems in their professional capacity as consultants, service partners or developers. It is a written agreement usually containing an itemised task list, milestones, deliverable material, costs and associated processes. A Statement of Work will be signed by both parties, or will be accompanied by a signed Contract of Professional Services.

“Subscription” means a grant to Use the Service Products for a specified term.

“Support Services” means technical assistance services for Shadowcat Systems services.

“Updates” means (a) any major new releases, modifications or enhancements to the Products and (b) any code corrections, patches, updates and minor version releases of the Products which are released to Subscriber during the applicable Subscription Term.

“Virtual Service” and/or "Virtual Machine" and/or "Virtual Deployment" means a software product that integrates a pre-configured copy of the software that is deployed in the context of a virtual machine. A Virtual Service is not modifiable to something other than its initial function.

Payment

Subscriber agrees to pay Shadowcat Systems the total fee for the items ordered on-line or in each Invoice or with a contract and invoices made from a statement of work, consultancy or support contract. Payment terms are cash in Pounds Sterling (GBP) due upon execution of the Agreement for on-line purchases. Contractual services wil identify the method of payment and service, with credit terms agreed from an from the invoice date as applicable. Fees for Services ordered by Subscriber, if any, are due as set forth in the respective statements and contracts. All payments are non-refundable. Except for taxes based on the income of Shadowcat Systems the Subscriber shall be responsible for all taxes and payments (including interest and penalties for late payment) arising from the order. The Subscriber agrees to pay Shadowcat Systems the total fees. Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less. Shadowcat Systems cannot compensate or credit Subscription Fees not used during a Subscription Term.

The Subscription can be canceled for any reason during, or at the end of, your current Subscription term. Once the Subscription term expires, the right to use Products and any Support Services or Extensions under this Agreement are terminated.

Subscriber will be required to renew Subscriptions on-line unless approved.

The Subscriber must renew the Subscription through the payment of the Subscription fee to continue to use the Services and Updates. Otherwise the Subscriber must stop using the Software. Subscription renewals, or fees for an increase in the number of Subscriptions, are based on the standard list price at the time of renewal.

Support Services

Designated Contact. Based on Subscriber’s Subscription you must designate Support contacts who are permitted to access ShadowNMS' Technical Portal. Ticket based support will be given for all technical issues deemed by Shadowcat Systems to be the fault of the ShadowNMS system and/or underlying technical infrastructure. Support given for tickets raised for issues outside of technical issues in the ShadowNMS system and underlying infrastructure shall be charged at our Consultancy rates based on a statement of work delivered to the subscriber.

Subscriber is responsible for maintaining functional hardware, firmware or Third Party software necessary on their own devices being monitored.

The Subscriber must provide information that will allow Shadowcat Systems to reproduce the error reported. Shadowcat Systems shall use commercially reasonable efforts to correct reproducible Product errors with a level of effort commensurate with the severity of the error.

Limitations and Exclusions. Support does not apply to problems resulting from: (i) errors not attributable to the Shadowcat Systems Products (ii) defects in the Products due to accident, abuse or improper use by Subscriber; (iii) Devices that have been changed or modified beyond their initial configuration or function at the time of discovery

Professional Services

Professional Services to be Performed. Shadowcat Systems shall provide the Professional Services purchased in an applicable consultation agreement, contract and/or Statement of Work (SOW) that describes the work to be performed, fees, payment terms, and any applicable milestones, dependencies or other technical specifications. A Shadowcat Systems consultancy contract must be signed by both parties before the commence of work under such statements or agreements.

Indemnity for Professional Services. Shadowcat Systems warrants that it will perform Professional Services in a manner consistent with industry standards reasonably applicable to the performance of such services as detailed in the Shadowcat Systems Contract.

Agreements

Customer Reference. Subscriber agrees that Shadowcat Systems can use Subscriber’s company name and logo in connection with marketing and promotions for ShadowNMS, except when specified in writing that the Subscriber prefers to remain confidential.

Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors.

Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.

Term. This Agreement is effective as of the Effective Date and expires on the day that the term of the last Subscription for any product hereunder expires. Either party may terminate this Agreement (including all related invoices, contracts and SOWs) if the other party fails to cure any material breach of this Agreement within thirty (30) days after written notice of such breach.

Termination. Termination is not an exclusive remedy, and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise. Termination shall not relieve Subscriber’s obligation to pay all fees that have accrued or are otherwise owed by Subscriber, including any late payment fees.

Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which occur after the signing of this Agreement and which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster or refusal of a license by a government agency.