BreakingPoint Cloud

ISG SAAS TERMS OF SERVICE
1.	ACCEPTANCE OF TERMS 
These ISG SaaS Terms of Service (“Terms”) are a legal agreement between Keysight Technologies, Inc., a Delaware corporation (“Keysight”) and you (“Licensee”). These Terms govern Licensee’s use of https://store.ixiacom.com/(“Website”) and the purchase, access, and use of Ixia Solution Group (“ISG”) branded software-as-a-service(s) (“SaaS”), including BreakingPoint Cloud, CloudLens, and Hawkeye Express, that Keysight makes available for Licensee’s use through a network connection (“Service”).  
BY ACCESSING OR USING ANY PART OF THE WEBSITE OR SERVICE, INCLUDING, WITHOUT LIMITATION, LINKING TO THE WEBSITE, LICENSEE AGREES THAT LICENSEE HAS READ, UNDERSTANDS AND AGREES TO BE BOUND BY THESE TERMS. IF THERE ARE ADDITIONAL POSTED GUIDELINES OR POLICIES APPLICABLE TO THE WEBSITE OR SERVICE (INCLUDING, WITHOUT LIMITATION, THE PRIVACY POLICY AND APPLICABLE SERVICE SUPPORTING DOCUMENTATION), LICENSEE IS REQUIRED TO FOLLOW THOSE AS WELL. THOSE POLICIES AND GUIDELINES ARE INCORPORATED BY REFERENCE INTO THESE TERMS. ANY CHANGES, ADDITIONS, OR DELETIONS THAT LICENSEE MAKES TO THESE TERMS ARE NOT ACCEPTABLE, AND KEYSIGHT MAY REFUSE ACCESS TO THE WEBSITE OR SERVICE FOR NONCOMPLIANCE WITH ANY PART OF THESE TERMS. 
2.	SERVICE
(a)	Software. In order to use the Service, Licensee may need to download and install the Service software (“Software”). If Licensee downloads Software, Licensee will need to accept the applicable end user license agreement (found at www.keysight.com/view/eula) (“EULA”) for the Software (the terms and conditions of such EULA are incorporated herein by reference). Licensee will need dedicated access to the Internet and Licensee will need to set up, at no cost to Licensee, a valid Keysight subscription user account (“Account”). Licensee is responsible for providing and maintaining all necessary equipment and Internet service (at Licensee’s sole cost) to use the Service and the Account. The quality and speed of Licensee’s hardware and Internet connection will affect Licensee’s use of the Service and Licensee’s Account. 
(b)	Service Description. The Service replicates network traffic and provides Licensee with the ability to analyze or simulate such traffic for performance and security purposes in both physical and cloud environments. In furtherance thereof, the Service may collect data about the system on which it is running and the current system and network utilization (including, without limitation, CPU type, amount of RAM, operating system, Linux kernels, Amazon Web Services tags, CPU utilization, RAM utilization, and network utilization). By using the Service, Licensee consents to Keysight collecting, transmitting, and processing such data (whether or not such data may be construed as personally identifiable information or personal data). Licensee may opt-out of such collection, transmittal or processing by not using the Service.  
3.	USE OF WEBSITE AND SERVICE
(a)	Privacy. Licensee agrees to the terms of Keysight’s Privacy Statement (www.keysight.com/go/privacy), which is incorporated by reference into these Terms.
(b)	Registration Data. Licensee must provide accurate, current, and complete information required to create an Account (including, without limitation, a name, address and valid unique email address), as well as at other points as may be required in the course of accessing the Website or using the Service (“Registration Data”). Further, Licensee shall maintain and update Licensee’s Registration Data as required to keep it accurate, current, and complete. Keysight may terminate Licensee’s rights to any part of or all of the Service if any information Licensee provides is false, inaccurate or incomplete. Licensee agrees that Keysight may store and use the Registration Data Licensee provides for use in maintaining Licensee’s Account and in billing fees.
(c)	User Account and Security. Licensee is solely responsible for maintaining the confidentiality and security of its Account. Licensee should not reveal its Account information to anyone else or use anyone else’s Account. Licensee is entirely responsible for all activities that occur on or through its Account, and Licensee agrees to immediately notify Keysight of any unauthorized use of Licensee’s Account or any other breach of security. Keysight shall not be responsible for any losses arising out of the unauthorized use of Licensee’s Account. Licensee also agrees not to access the Service by any means other than through the Software or Website. Licensee shall not access or attempt to access an Account that Licensee is not authorized to access. Violations of system or network security may result in civil and/or criminal liability.
(d)	General Compliance with Laws. Licensee agrees to comply with all local, state, federal, and national laws, statutes, ordinances, and regulations that may apply to Licensee’s use of the Website and Service. Without limiting the generality of the foregoing, Licensee agrees that any user of the Website or Service through the Account will be aged 13 years or older.
	
(e)	Enforcement of these Terms. Keysight reserves the right to take any steps or course of action it believes are reasonably necessary or appropriate to enforce and/or verify compliance with any part of these Terms (including, but not limited to, Keysight’s right to cooperate with any legal process relating to Licensee’s use of the Website and/or Service, and/or a third party claim that Licensee’s use of the Website and/or Service is unlawful and/or infringes such third party’s rights). Licensee agrees that Keysight has the right, without liability to Licensee, to disclose any Registration Data and/or Account information to law enforcement authorities, government officials, and/or a third party, as Keysight believes is reasonably necessary or appropriate to enforce and/or verify compliance with any part of these Terms (including, but not limited to, Keysight’s right to cooperate with any legal process relating to Licensee’s use of the Website or Service, and/or a third party claim that Licensee’s use of the Website or Service is unlawful and/or infringes such third party’s rights).
(f)	Restrictions. Licensee may not cause harm to the Website, Service or other users thereof. Specifically, but not by way of limitation, Licensee may not: (a) interfere with the Website or Service by using viruses or any other programs or technology designed to disrupt or damage any software or hardware; (b) modify, create derivative works from, reverse engineer, decompile or disassemble any technology used to provide the Website, Service or Software; (c) rent, lease, loan, sell or distribute works based on the Website, Service or Software; (d) interfere with, or disrupt the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming; (e) use a robot, spider or other device or process to monitor the activity on or copy pages from the Website, except in the operation or use of an internet “search engine”, hit counters or similar technology; (f) impersonate another person or entity; (g) engage in any activity that interferes with another user’s ability to use or enjoy the Website or Service; (h) provide links to the Website other than links to the Website home page; or (i) assist or encourage any third-party in engaging in any activity prohibited by these Terms.
4.	FEES AND PAYMENT
(a) Fees. Fees for the Service will be based on the pricing published on the Website as of the subscription or purchase date, unless otherwise set forth in a written quote. Fees set forth in a written quote are valid for period indicated on the quotation. 
(b) Payment. LICENSEE IS RESPONSIBLE FOR THE TIMELY PAYMENT OF ALL FEES FOR THE SERVICE. All fees will be billed to the address Licensee designates on Licensee’s Account. If Licensee wants to designate a different address, Licensee must change the same by logging into Licensee’s Account and updating Licensee’s Account information. Fees are subject to change at time of any renewal. Depending on Licensee’s Service subscription, Keysight may bill Licensee: (i) in advance; (ii) at the time of purchase; (iii) shortly after purchase; or (iv) on a recurring time- or usage-based basis. Any amount not paid when due will bear the lower of the interest rate of 1.5% per month or maximum rate permitted by applicable law.
(c) Prepaid Credit.  Keysight may sell to Licensee one or more credits (each, a “KeyCoin”) that Licensee may use to pay for Licensee’s subsequent use of one or more features or aspects of the Service that are identified by Keysight from time to time (each, an “Approved Feature”). Each KeyCoin will be valid for one calendar year from the date of purchase (the “Lifetime”), and will expire and be forfeited with no refund or return of funds due to Licensee if such KeyCoin is not used to prepay for an Approved Feature prior to the end of the last day of that period. (As an example only, if a KeyCoin is purchased on October 1, 2017, that KeyCoin will expire and be forfeited if not used to prepay for an Approved Feature prior to the end of the day on October 1, 2018.) Keysight shall provide to Licensee a summary of any unexpired KeyCoin(s) following Licensee’s written request for such summary. However, Keysight shall have no obligation to provide Licensee any notice or warning regarding any anticipated expiration of a KeyCoin, and failure to receive any such notice shall not operate to bar a KeyCoin from expiring. KeyCoins may only be used by the Licensee and are not transferable or sublicensable. KeyCoins may not be used for the benefit of any third party or to pay for an Approved Feature that will be used by a third party. Keysight may immediately cancel and refuse to honor any KeyCoin if Licensee transfers or attempts to transfer such KeyCoin, or if Licensee uses or attempts to use such KeyCoin in violation of these Terms of Service. In the event of any such cancellation, Keysight shall have no obligation to refund to Licensee any amounts paid for the corresponding KeyCoin(s). All KeyCoins are non-refundable once purchased, and shall have no cash value once purchased. No applicable tax is charged for the purchase of KeyCoins; however, Licensee will be responsible for applicable taxes on the purchase and use of the Approved Feature and/or Service. 
(d) Electronic Signatures and Contracts. Licensee’s use of the Service includes the ability to enter into agreements and/or to complete transactions electronically. LICENSEE ACKNOWLEDGES THAT ITS ELECTRONIC SUBMISSIONS CONSTITUTE ITS AGREEMENT AND INTENT TO BE BOUND BY AND TO PAY FOR SUCH AGREEMENTS AND TRANSACTIONS. 
(e) Taxes. Prices are exclusive of any applicable sales, value added, or similar taxes imposed by any government authority (collectively, “Taxes”). Licensee shall be responsible for payment of all Taxes (including any interest or penalties), if any, levied on or deducted from any amounts payable to Keysight pursuant to these Terms. Licensee shall provide necessary documents to evidence that payments made under these Terms qualify for the benefit of a reduced rate of withholding tax under an applicable tax treaty.
5.	INTELLECTUAL PROPERTY 
(a)	Ownership. The Website and Service contain proprietary information and material that is owned by Keysight and/or its affiliates, licensors and suppliers (as applicable), and is protected by applicable intellectual property and other laws, including, but not limited to, copyright laws, and therefore Licensee shall not use such proprietary information or materials in any way whatsoever except for use of the Service in compliance with the provisions of these Terms and use of the Software in compliance with the EULA. No portion or content of the Website or Service may be reproduced in any form or by any means, except as expressly permitted hereunder. Licensee shall not attempt to register any copyrights, register any trademarks or service marks, or apply for any patent or other intellectual property protection for the Website, Service, or any portion thereof.
(b)	Removal of Content. Notwithstanding any other provision of these Terms, Keysight and its licensors reserve the right to change, suspend, remove, or disable access to any content or materials comprising a part of the Website or Service at any time without notice. In no event shall Keysight be liable for such change, suspension, removal or disabling. Keysight may also impose limits on the use of or access to certain features or portions of the Website or Service, in any case and without notice or liability.
(c)	Trademarks. Names, logos, designs, look and feel, titles, words and phrases used on the Website or Software are owned by Keysight or its licensors or other entities. Licensee is granted no right or license with respect to any of the aforesaid.
(d)	Reservation of Rights. Except for the rights expressly granted to Licensee in these Terms and in the EULA, all intellectual property and other rights, title and interest in the Website, Service and Software are reserved and retained by Keysight and/or its affiliates, licensors and suppliers (as applicable). Licensee does not acquire any ownership interest or ownership rights whatsoever in the Website, Service or Software as a result of accessing, downloading, installing and/or using them.
(e)	Feedback. All feedback, comments, suggestions, ideas, and other submissions that Licensee discloses, submits or offers to Keysight in connection with Licensee’s use of the Website or Service, including, without limitation, all data generated through the use of the Service (collectively, “Feedback”) will become Keysight’s exclusive property. Such disclosure, submission or offer of any Feedback shall constitute an assignment to Keysight of all worldwide right, title and interest in all intellectual property and other rights whatsoever in and to the Feedback and a waiver of any claim based on moral rights, unfair competition, breach of implied contract, breach of confidentiality, and any other legal theory relating to Feedback. Keysight is not and will not be under any obligation: (i) to maintain any Feedback in confidence; (ii) to pay to Licensee or any third party any compensation for any Feedback; or (iii) to respond to any Feedback. Licensee is and shall remain solely responsible for the content of any Feedback Licensee makes.
6.	TERM AND TERMINATION  
(a) Term. These Terms shall be effective from the date when Keysight accepts Licensee’s order for the Service or upon Licensee’s use of the Service and, unless terminated pursuant to this Section 6, shall continue for the period specified in Licensee’s order or so long as Licensee timely pays fees due for Licensee’s use of the Service. 
(b)	Termination by Keysight. If Licensee fails, or Keysight suspects that Licensee has failed, to comply with any of the provisions of these Terms, including, but not limited to, failure to make payment of fees due, failure to provide Keysight with accurate and complete Registration Data, failure to safeguard Licensee’s Account information, violation of the any usage rules included or referenced in these Terms, or infringement or other violation of a third party’s rights, Keysight, at its sole discretion, without notice to Licensee may: (a) terminate these Terms and/or Licensee’s Account, in which event Licensee will remain liable for all amounts due under its Account up to and including the date of termination; and/or (b) terminate the EULA; and/or (c) preclude access to the Service (or any part thereof).
(c)	Effect of Termination. If these Terms are terminated, Keysight may, in its sole discretion, delete any web sites, files, graphics or other content or materials relating to Licensee’s use of the Services on Keysight’s servers or otherwise in Keysight’s possession and Keysight will have no liability to Licensee or any third party for doing so or for failing to do so. Following termination, Licensee will not be permitted to use the Service. If Licensee’s Account or Licensee’s access to the Service is terminated, Keysight reserves the right to exercise whatever means Keysight deems necessary to prevent unauthorized access to the Service, including, but not limited to, technological barriers, IP mapping and direct contact with Licensee’s Internet Service Provider. If these Terms are terminated, Licensee must immediately pay Keysight any fees owed. Regardless of whether Licensee has the right to access or use the Website or the Service, the provisions of these Terms, except any license grants given to Licensee, will survive indefinitely.
(d)	Third Party Sites. The Website may contain links to third-party websites, advertisers, or services that are not owned or controlled by Keysight. Licensee acknowledges that Keysight has no control over, assumes no responsibility for, and does not recommend or endorse, the content, privacy policies, or practices of any third-party websites or services. If Licensee accesses a third-party website from the Website, Licensee does so at its own risk, and Licensee understands that these Terms do not apply to Licensee’s use of such websites. Licensee expressly releases Keysight from any and all liability arising from Licensee’s use of any third-party website or services or third-party owned content.
7.	DISCLAIMER; LIMITATION OF LIABILITY
(a)	KEYSIGHT DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT LICENSEE’S USE OF THE WEBSITE OR SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, AND LICENSEE AGREES THAT FROM TIME TO TIME KEYSIGHT MAY SUSPEND, LIMIT, OR REMOVE THE WEBSITE OR SERVICE FOR INDEFINITE PERIODS OF TIME, OR CANCEL THE SERVICE AT ANY TIME, WITHOUT NOTICE TO LICENSEE. FURTHER, KEYSIGHT MAKES NO REPRESENTATION OR WARRANTY TO LICENSEE THAT: (A) THE WEBSITE OR SERVICE WILL MEET LICENSEE’S NEEDS OR REQUIREMENTS; (B) THE WEBSITE OR SERVICE WILL BE SECURE; (C) THE QUALITY OF THE WEBSITE OR SERVICE WILL MEET LICENSEE’S EXPECTATIONS; OR (D) THE WEBSITE, SERVICE OR SOFTWARE WILL BE COMPATIBLE WITH LICENSEE’S COMPUTER SYSTEM.
(b)	TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT AS EXPRESSLY SET FORTH HEREIN, (i) THE WEBSITE AND THE SERVICE ARE PROVIDED “AS IS”, (ii) LICENSEE’S USE OF, OR INABILITY TO USE, THE WEBSITE AND/OR SERVICE IS AT LICENSEE’S SOLE RISK, AND (iii) KEYSIGHT AND ITS SUPPLIERS, DISTRIBUTORS AND LICENSORS DO NOT MAKE AND SPECIFICALLY DISCLAIM, ALL EXPRESS AND IMPLIED WARRANTIES OF EVERY KIND RELATING TO THE WEBSITE AND SERVICE AND/OR THEIR USE (INCLUDING, WITHOUT LIMITATION,  ACTUAL AND IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT), AS WELL AS ANY WARRANTIES THAT THE WEBSITE OR SERVICE (OR ANY ELEMENTS THEREOF) WILL ACHIEVE A PARTICULAR RESULT, OR WILL BE UNINTERRUPTED OR ERROR-FREE.
(c)	TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL KEYSIGHT, ITS SUPPLIERS, DISTRIBUTORS OR LICENSORS BE LIABLE UNDER ANY THEORY OF LIABILITY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING FROM LOSS OF PROFITS, REVENUE, DATA, OR USE, OR FROM INTERRUPTED COMMUNICATIONS OR DAMAGED DATA, OR FROM ANY DEFECT OR ERROR, OR IN CONNECTION WITH LICENSEE’S ACQUISITION OF SUBSTITUTE GOODS OR SERVICES OR MALFUNCTION OF THE WEBSITE, SOFTWARE OR SERVICE, OR ANY SUCH DAMAGES ARISING FROM BREACH OF CONTRACT OR WARRANTY OR FROM NEGLIGENCE OR STRICT LIABILITY) IN CONNECTION WITH THESE TERMS, THE WEBSITE, SERVICE, SOFTWARE, AND/OR ANY USE OF ANY OF THE FOREGOING EVEN IF KEYSIGHT OR ANY OF ITS SUPPLIERS, DISTRIBUTORS OR LICENSORS OR ANY OTHER PERSON HAS BEEN ADVISED OR SHOULD KNOW OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY REMEDY TO ACHIEVE ITS INTENDED PURPOSE. FURTHER, IN NO EVENT SHALL KEYSIGHT’S MAXIMUM, AGGREGATE LIABILITY IN CONNECTION WITH THESE TERMS, THE WEBSITE, SERVICE, SOFTWARE, AND/OR ANY USE OF ANY OF THE FOREGOING EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY LICENSEE FOR THE SERVICE IN THE IMMEDIATELY PRECEDING 12 MONTHS.
(d)	KEYSIGHT WILL USE REASONABLE AND APPROPRIATE EFFORTS TO PROTECT INFORMATION SUBMITTED BY LICENSEE IN CONNECTION WITH THE SERVICE, BUT LICENSEE ACKNOWLEDGES AND AGREES THAT ITS SUBMISSION OF SUCH INFORMATION IS AT ITS SOLE RISK, AND KEYSIGHT HEREBY DISCLAIMS ANY AND ALL LIABILITY TO LICENSEE FOR ANY LOSS OR LIABILITY RELATING TO SUCH INFORMATION IN ANY WAY.
(e)	KEYSIGHT DOES NOT REPRESENT OR GUARANTEE THAT THE WEBSITE OR SERVICE WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND KEYSIGHT DISCLAIMS ANY AND ALL LIABILITY RELATING THERETO. LICENSEE SHALL BE RESPONSIBLE FOR BACKING UP ITS OWN COMPUTER SYSTEM.
8.	INDEMNITY
Licensee hereby agrees to indemnify, protect, defend, and hold Keysight and its suppliers, licensors and distributors and its and their directors, officers, employees, professional advisors, agents and representatives, harmless from and against any and all claims, losses, and damages, including, without limitation, reasonable attorneys’ and experts’ fees and disbursements (collectively “Claims”), arising out of, resulting from or relating to (a) Licensee’s failure to perform any of the covenants, agreements, terms, provisions, or conditions contained in these Terms or (b) Licensee’s use or misuse of the Website or Service. If Licensee is required to indemnify any party under this Section, Licensee will have the right to control the defense, settlement, and resolution of the Claim at Licensee’s sole expense. However, Licensee may not settle or otherwise resolve any Claim without Keysight’s express written permission.
9.	CLAIMS LIMITATION
To the maximum extent permitted by law, Licensee expressly, knowingly and voluntarily agrees that any and all lawsuits, causes of action and/or claims against Keysight and/or its affiliates shall be forever waived, barred and released unless properly brought and filed in a court of competent jurisdiction within one (1) year from the date upon which said lawsuit, cause of action or claim accrued.
11. MISCELLANEOUS
(a)	Modifications. Keysight reserves the right, at any time and from time to time, to update, revise, change, supplement, and otherwise modify these Terms and to impose new or additional rules, policies, terms, and/or conditions on Licensee’s use of the Website or Service. Such updates, revisions, supplements, modifications, and additional rules, policies, terms, and conditions (collectively referred to in these Terms as “Additional Terms”) will be effective immediately upon their publication on the Website and are incorporated into these Terms. Licensee’s continued use of the Service or access of the Website after such publication shall be deemed to constitute Licensee’s acceptance of any and all such Additional Terms. All Additional Terms are hereby incorporated into these Terms by this reference. Further, Keysight reserves the right, at any time and from time to time, to change, alter, update, replace, expand, limit, terminate or otherwise modify the Website or Service without notice or liability to Licensee.
(b)	Notices. Keysight may send Licensee notice with respect to the Service or Licensee’s Account by sending an e-mail message to the e-mail address listed on Licensee’s Account as part of Licensee’s contact information, by sending a letter via postal mail to the contact address listed on Licensee’s Account, or by a posting on the Website. All such notices shall become effective immediately.
(c)	How to Contact Keysight. If Licensee needs to contact Keysight with respect to the Website, Service or these Terms, Licensee must refer to the technical support and contact information posted on the Website.  
(d)	Governing Law and Jurisdiction. These Terms and Licensee’s use of the Website and Service shall be governed by the laws of the State of California, without reference to conflicts of laws principles. Licensee’s use of the Website and Service may also be subject to other local, state, national, or international laws. 
(e)	Integration. These Terms (including, without limitation, the documents referenced herein) constitute the entire and integrated agreement between Licensee and Keysight with respect to Licensee’s use of the Website and Service and the subject matter hereof, and these Terms supersede and replace any and all prior and contemporaneous agreements between Licensee and Keysight with respect to the Website and Service and said subject matter. 
(f)	Severability. If any part of these Terms is held invalid or unenforceable by a court of competent jurisdiction, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. 
(g)	Waiver. Keysight’s failure to enforce any right, remedy or provisions in these Terms shall not constitute a waiver of such provision, or any other provision of these Terms. Keysight shall not be responsible for failures to fulfill any obligations due to causes beyond its control.