This End User License Agreement (“EULA”) sets forth the exclusive terms and conditions under which SecurityAdvisor Technologies, Inc. (“Licensor”) grants a limited license to the end user (“Licensee”) of the Licensor’s software and related data media and documentation (collectively, the “Software”) in conjunction with Licensee’s subscription to Licensor’s cloud-based service under which the Software is downloaded for Licensee’s use (the “Service”). The Licensee’s use of the Software constitutes acceptance of the terms and conditions of this EULA. Any conflicting term or condition, including those that may be embedded in any purchase order, order acknowledgment, invoice or other forms used by the parties, shall be of no force or effect unless agreed to in a writing by Licensor. The SecurityAdvisor client software is only distributed as Enterprise software under business-to-business agreements to satisfy the needs of client organizations, and the software must only be installed on computers with the consent of the computer’s users’ or within the context of an employment agreement.
All right title and interest in and to the Software and all modifications and derivatives thereof, including all patent, copyright, trade secret and other intellectual property rights therein resides and will reside in Licensor and its licensors as applicable (the “Software IP”).
Subject to the terms and condition of this EULA and in consideration for the payment of the applicable fees included in the Order Forms, as part of a subscription, Licensor hereby grants Licensee a limited, nonexclusive, nontransferable license under the Software IP to utilize the Software solely in conjunction with the Service during the term specified in the Order Form issued by Licensor or its authorized reseller to Licensee (the “Order Form” and, together with this EULA, the “Agreement”). The Software may not be decompiled, disassembled, decoded, reverse engineered, or modified, nor may it be disclosed, distributed or made available to third parties. Licensor may upon written notice terminate this grant if the forgoing restrictions are violated or the fees specified in the Order Form are not paid when due. Licensee acknowledges that any violation of the foregoing restrictions will cause Licensor irreparable harm entitling Licensor to injunctive relief without posting bond or other security.
Upon expiration or termination of the Agreement for any reason, or at the expiration of an order term where the order term was not renewed, (a) all subscriptions and rights granted hereunder shall cease; (b) Licensee shall immediately (i) cease (and shall cause its employees and any authorized user to immediately cease) all use of the Software, Services, client support and documentation.
Licensee agrees to pay or reimburse all fees and expenses reasonably incurred by Licensor in enforcing the Agreement and collecting any amounts due under the Agreement, including, but not limited to, all reasonable attorneys’ fees and all expenses associated therewith, including costs of collection.
If any of the Software is being licensed under the terms of a proposal or agreement with the U.S. Government or on the U.S. Government’s behalf, the Software is commercial computer software and both the Software and the documentation are developed exclusively at private expense, and (a) if acquired by or on behalf of a civilian agency, shall be subject to the commercial computer software license terms set forth in this Agreement as specified in 48 C.F.R 12.212 of the Federal Acquisition Regulation and its successors; or (b) if acquired by or on behalf of units of the Department of Defense, shall be subject to the commercial computer software license terms set forth in this Agreement as specified in 48 C.F.R 227.7202 of the Defense Federal Acquisition Regulation Supplement and its successors.
LICENSEE ACKNOWLEDGES AND AGREES THAT IT IS RESPONSIBLE FOR OBTAINING AND MAINTAINING ALL TELEPHONE, COMPUTER AND OTHER EQUIPMENT NEEDED TO ACCESS AND USE THE SOFTWARE. LICENSEE ACKNOWLEDGES AND AGREES THAT THE SOFTWARE AND ANY CUSTOMER SUPPORT ARE TOOLS TO ASSIST LICENSEE IN IDENTIFYING SECURITY THREATS. LICENSEE IS SOLELY RESPONSIBLE AND LIABLE FOR VERIFYING THE ACCURACY AND ADEQUACY OF ANY OUTPUT FROM THE SOFTWARE OR THE INFORMATION CONTAINED IN ANY REPORT, AND FOR ANY RELIANCE OR DECISION THEREON
The license granted hereunder is subject to Licensee’s timely payment of fees as specified in the Order Form issued by Licensor or by Licensor’s authorized reseller. All fees are (i) based on the subscription ordered and not actual usage, and (ii) payment obligations are non-cancellable and non-refundable. Unless agreed to otherwise in an Order Form, Licensor will issue an invoice for all fees due under the Agreement annually in advance and, upon renewal, the fees shall be due and payable to Licensor at least thirty (30) days prior to the anniversary of the effective date. Licensee agrees to pay undisputed invoices within thirty (30) days after the date of the invoice, unless otherwise specified in an Order Form. Late payments will bear interest at the rate of 1.5% per month or, if less, the highest rate permitted by law.
Licensee is required to pay any and all transaction taxes, regardless of how or who imposed on, which are taxes that arise as a result of the EULA except for taxes imposed on Licensor’s net income. These transaction taxes may include, but are not limited to, local, state, provincial, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value added taxes, consumption taxes, goods and services taxes, GST/HST, excise, sales, use or similar taxes and any withholding taxes (together “Taxes”). All amounts paid pursuant to this EULA are payable in full and without reduction for Taxes. If Licensor has a legal obligation to pay or collect Taxes for which Licensee is responsible under this section, the appropriate amount shall be invoiced to and paid by Licensee, unless Licensee provides Licensor with a valid tax exemption certificate authorized by the appropriate taxing authority. If Licensee is required by a governmental taxing authority to withhold an amount from any payment due hereunder and pay such amount to the governmental authority, the prices will be grossed-up so that the net payment equals the original price.
At the expiration of each order term as specified in the Order Form, the order term for a subscription shall automatically renew for an additional twelve (12) month period unless either party notifies the other party of its intention not to renew at least sixty (60) days prior to the end of the applicable order term. In the event of any renewal Licensor’s then-current fees and policies shall apply but in no event shall the increase be greater than four percent (4%) of the applicable fee charged for the applicable solution or service as calculated during each year of the applicable order term.
Licensor shall have the right to request Licensee’s records (a “success request”) in order to verify Licensee’s compliance with its obligations and restrictions under this EULA, including inspecting the console and ensuring it is at or below the licensed user count. Licensee will comply with success requests (Limited to a maximum of one per year) within 30 days. Licensee shall promptly pay the difference if such verification reveals an underpayment.
The Software is warranted to conform to and perform in accordance with the description contained in the Order Form, provided that Licensee notifies Licensor in writing of the nature of any claimed defect during this period and Licensor is able to reproduce and verify the defect, in which case, as Licensee’s sole remedy, Licensor will make commercially reasonable efforts to eliminate or work around the defect, failing which Licensor may terminate the subscription and will refund a prorated amount of any pre-paid subscription fees paid by Licensee for the Service involving the defective Software from the date of termination. Licensor will use commercially reasonable efforts to make the Software available to the Internet for access by Licensee 99.0% of the available time, excluding any outages on account of or caused by client downtime, any maintenance updates of the Software or any event of force majeure.
LICENSEE ACKNOWLEDGES AND AGREES THAT EXCEPT FOR THE ABOVE EXPRESS LIMITED WARRANTY, LICENSOR MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE THAT THE SOFTWARE, SERVICES, CUSTOMER SUPPORT OR PROFESSIONAL SERVICES (AS APPLICABLE) ARE ACCURATE, MEET LICENSEE’S NEEDS, ARE BETTER THAN ANY COMPETING PRODUCTS OR SERVICES OR ARE THE BEST SOLUTION AVAILABLE TO LICENSEE OR WILL IDENTIFY ALL POTENTIAL THREATS. LICENSOR MAKES NO OTHER WARRANTIES EXPRESS OR IMPLIED, AND EXPRESSLY EXCLUDES ANY WARRANTY OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE.
Licensor will indemnify Licensee and, at Licensor’s election, defend Licensee against any third-party claims asserted against Licensee in a suit or action if the U.S. claim is for direct patent infringement, for direct copyright infringement, or for Licensor’s trade secret misappropriation, and the claim is asserted against the Software alone and not in combination with anything else, or solely a combination of Licensor’s Products. To qualify for such defense and payment, Licensee must: (i) give Licensor prompt written notice of any such claim, and (ii) allow Licensor to control, and fully cooperate with Licensor in, the defense and all related settlement negotiations. Upon notice of an alleged infringement, or if, in Licensor’s opinion, such a claim is likely, Licensor shall have the right, at its option, to obtain the right to continue the distribution of Products, substitute other products or services with similar operating capabilities and/or performance, or modify the Product so that it is no longer infringing or subject to a third-party claim. In the event that none of the above options are commercially practicable in Licensee’s sole discretion, Licensor may terminate this EULA and all accompanying licenses. In the event of such termination, Licensee may as its sole and exclusive remedy obtain a refund from SecurityAdvisor of the fees paid for Service subscriptions prorated for the remainder of any pre-paid subscription term unused by the Licensee. This Section states Licensor’s entire liability for intellectual property misappropriation or infringement. Licensor shall not be responsible for any claim of infringement that arises from
(i) unauthorized modifications to the Software, (ii) use of the Software in a manner or in combination with software, firmware or hardware not provided by Licensor to the extent such claim would not have occurred except for such modifications or use; (iii) use of other than the latest available version of the Software made available to Licensee; or (iv) any use of the Software not in accordance with this EULA or the applicable documentation or specifications.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN NO EVENT WILL EITHER PART BE LIABLE TO THE OTHER, ITS RESPECTIVE AFFILIATES, OR ANY OF ITS RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS, FOR ANY AMOUNT IN EXCESS OF THE FEES PAID BY LICENSEE FOR THE SERVICE GIVING RISE TO SUCH LIABILITY IN THE TWELVE-MONTH PERIOD PRECEDING THE OCCURRENCE OF THE LAST EVENT GIVING RISE TO LIABILITY. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY IN THE AGGREGATE AND WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS EULA HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. Licensor will not be liable for the cost of procuring substitute or alternative software or services and neither party will be liable to the other party for any special, indirect, incidental or consequential damages of any kind, under contract, tort, statute or other legal theory, even if such party is aware of the likelihood of such damages occurring. This section shall not, however, apply to Licensee’s violation of the restrictions above under Grant of License or to Licensor’s obligations above under IP Indemnity.
Licensee acknowledges and agrees that the disclaimers, exclusions and limitations of liability set forth in this Section and in Section 7 (Warranty) form an essential basis of the Agreement, and that, absent any of such disclaimers, exclusions or limitations of liability, the terms of the Agreement, including, without limitation, the economic terms, would be substantially different.
The failure of either party to perform any obligation otherwise due (other than the obligation to pay any fee) as a result of an event of force majeure is excused for so long as said cause exists.
This EULA and the Order Form incorporating this EULA constitutes the complete and binding contract between Licensor and Licensee regarding the Service and the licensing of the Software thereunder. It may be modified only in a written instrument signed on behalf of both parties
The Agreement shall be governed and interpreted in accordance with the laws of the State of California without application of its conflicts of law principles. The Licensor acknowledges and agrees that in no event will the United Nations Convention on the International Sale of Goods will not apply to the extent that it establishes the terms and conditions of the Agreement as the exclusive provisions of the contract between the parties relating to procurement of licensing rights to the Software.
All disputes arising under or related to the Agreement shall be resolved under the exclusive jurisdiction of the courts located within the county of Santa Clara, California and judgment on the court award may be entered in any court having jurisdiction. However, either party may at any time bring an action for injunctive relief in any court having jurisdiction.
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