These Supplemental Terms for Load Test Products set forth additional terms that, except as otherwise agreed in writing between Dynatrace and Client, apply to Client’s use of the Load Test Products, and supplement the Agreement and Product Schedule to which these Supplemental Terms are attached. The Agreement is amended as follows. In the event of a conflict between these Supplemental Terms and the Agreement, these Supplemental Terms shall control.
1. SCOPE OF SUBSCRIPTION SERVICES; RESTRICTIONS.
Client shall have the right to use the Subscription Services ordered and made available to Client by Dynatrace hereunder. “Subscription Services” shall be defined as the hosted services, electronic reports, scripting, analyses, documentation or Auxiliary Programs provided by Dynatrace under this Agreement which are necessary to deploy the service as specified on the applicable Product Schedule. “Auxiliary Program” means any software, agent or equipment that Dynatrace makes available to Client as part of the Subscription Services for purposes of facilitating access to, operation of, and/or use with, the Subscription Services. Client shall (i) be responsible for their users' compliance with this Agreement and all the results of their use of the Subscription Services, and (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Subscription Services, and notify Dynatrace promptly of any such unauthorized access or use. Client shall not (a) make the Subscription Services available for use, access, display, searching or retrieval by, or on behalf of, any third party; (b) make the Subscription Services available in any "public" area or accessible on the World Wide Web; (c) violate any applicable privacy laws, (d) sell, resell, sublicense, assign, rent or lease the Subscription Services except as otherwise permitted under this Agreement, (e) copy, modify, reproduce, adapt, translate or otherwise create derivative works of the Subscription Services or any documentation related thereto, (f) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of or gain unauthorized access to the Subscription Services or any part thereof, (f) use the Subscription Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store, transmit, or gather material in violation of third-party privacy rights, (g) intentionally interfere with or disrupt the integrity or performance of the Subscription Services or third-party data contained therein, (h) use the Subscription Services to distribute any viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs, (i) use the Subscription Services to send spam messages. Dynatrace retains the right to use measurement data generated by the Subscription Services (the “Measurement Data”) in an aggregate and anonymous manner, compile statistical and performance information related to the provision and operation of the Subscription Services, and make such information publicly available. Subscription Services and Measurement Data are for the internal business use solely of the Client and may not be copied, distributed or commercially exploited. Dynatrace may monitor Client usage of the Subscription Services. Client agrees not to infiltrate, damage, destroy, delay, interrupt, gain unlawful access to or engage in unlawful usage of the Subscription Services.
2. INTELLECTUAL PROPERTY.
Client acknowledges and agrees that all ownership and proprietary rights to the Subscription Services, Auxiliary Programs and the contents thereof and all related intellectual property are and shall remain the property exclusively of Dynatrace or its licensors, as applicable. Dynatrace retains full rights of ownership and use in: (a) any programs, products, materials or methodologies or materials of Dynatrace created and/or developed by Dynatrace prior to or independently of the Subscription Services contemplated herein (“Pre-existing Works”); and (b) all materials, methodologies, processes, techniques, ideas, concepts, trade secrets, and know-how, which may be created or developed in connection with the Subscription Services and are modifications and/or derivatives of Dynatrace’s Pre-existing Works. Client acknowledges that the Load Test Products, including related trade secrets, marks and copyrights, are and shall remain the sole and exclusive property of Dynatrace’s applicable licensor as owner, and Client is only receiving a limited right to use the Load Test Products as set forth in the Agreement and Product Schedule as amended herein.
3. LIMITATION OF LIABILITY.
THE ENTIRE LIABILITY OF DYNATRACE OR ITS LICENSORS OR SUPPLIERS TO CLIENT FOR ANY CLAIM WHATSOEVER SHALL BE LIMITED TO THE CONSIDERATION PAID TO DYNATRACE BY CLIENT FOR THE SERVICES GIVING RISE TO THE CLAIM OVER THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD.
4. LIMITATION OF DAMAGES.
IN NO EVENT WILL DYNATRACE OR ITS LICENSORS OR SUPPLIERS BE LIABLE FOR ANY DAMAGES FOR LOSS OF USE, LOSS OF DATA, LOST PROFITS, BUSINESS LOSS OR ANY INCIDENTAL, INDIRECT, SPECIAL, ECONOMIC OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, AND UNDER ANY THEORY OF LIABILITY, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.