2017 CYPHORT, INC. END USER LICENSE AGREEMENT
IMPORTANT – PLEASE READ CAREFULLY THE TERMS OF THIS END USER LICENSE AGREEMENT (“AGREEMENT”). THIS AGREEMENT IS A LEGAL AGREEMENT BETWEEN CYPHORT, INC. (“CYPHORT”) AND YOU AND/OR THE ENTITY THAT YOU REPRESENT (YOU OR ANY SUCH ENTITY, “LICENSEE”). BY CLICKING ON THE “YES” OR “I AGREE” BUTTON, (1) YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT AND (2) YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT AND TO BIND LICENSEE TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL TERMS AND CONDITIONS OF THIS AGREEMENT, OR IF YOU DO NOT HAVE SUCH AUTHORITY, YOU SHOULD CLICK ON THE “NO” BUTTON TO DISCONTINUE THE DOWNLOAD OR INSTALLATION OF THE SOFTWARE AND REFRAIN FROM USING THE PRODUCT.
NOTE: YOUR COMPANY OR ORGANIZATION MAY HAVE A SIGNED WRITTEN AGREEMENT DIRECTLY WITH CYPHORT (E.G., AN ENTERPRISE OR MASTER LICENSE AGREEMENT) THAT SUPPLEMENTS OR SUPERSEDES ALL OR PORTIONS OF THIS END USER LICENSE AGREEMENT.
1.1 “Documentation” means the standard end-user technical documentation and specifications that Cyphort provides with the Product.
1.2 “Hardware” means the hardware components of the Product, if any.
1.3 “Intellectual Property Rights” means copyrights, trademarks, service marks, trade secrets, patents, patent applications, moral rights, contractual rights of non-disclosure or any other intellectual property or proprietary rights, however arising, throughout the world.
1.4 “Product” shall mean the Cyphort Advanced Threat Defense Platform or any other product provided by Cyphort to Licensee in conjunction with this Agreement, as specified in the applicable ordering document.
1.5 “Software” means the software and content components of the Product and any Update thereto if and when such Updates are made available by Cyphort, and excludes any Open Source Components (as defined in Section 2.4).
1.6 “Update” means an update of the Software that Cyphort makes generally available at no additional charge to customers that receive Support, including, if and when available, bug fixes, patches, maintenance releases, new point releases, and new major version releases. Updates include only the Software licensed by Licensee hereunder, and do not include any new options, new or future product, or any upgrade in features, functionality or performance of the Software that Cyphort licenses separately from the Software, or offers only for an additional fee.
1.7 “Usage Level” means the maximum authorized bandwidth purchased by Licensee to use the Product based on Licensee’s subscription.
2. LICENSE GRANT; SERVICES.
2.1 Software License. For the duration of this Agreement and subject to its terms and conditions, Cyphort grants to Licensee a nontransferable, nonexclusive license (without the right to sublicense) to install and use the Software, in executable object code format only, solely to the extent necessary to operate the Product in accordance with the Documentation and limited to Licensee’s Usage Level.
2.2 Hosting Company. Licensee may enter into a relationship with a reputable third party hosting company (“Hosting Company”) to host or outsource the Product(s) at the Hosting Company’s secure location in the United States, provided that the Hosting Company executes an agreement with Licensee that is at least as protective of Cyphort’s rights, title and defenses as this Agreement (including confidentiality provisions), and agrees to use the Product(s) for the exclusive purpose of providing the hosting or outsourcing service solely for Licensee’s use in accordance with this Agreement. Licensee and the Hosting Company will be responsible for complying with the terms and conditions of this Agreement and all laws and regulations in whatever jurisdiction pertaining to their activities under this Agreement. Any such Hosting Company will not be a party to, or third party beneficiary of this Agreement.
2.3 Restrictions on Use. Licensee shall not, and shall not permit any other person to: (a) use the Software except as expressly allowed herein; (b) adapt, alter, publicly display, publicly perform, translate, create derivative works of or otherwise modify the Software; (c) transfer, copy or use the Software, or any portion thereof, to or on any other product or device for any purpose; (d) sublicense, lease, rent, loan, distribute or otherwise transfer the Software to any third party (other than a Hosting Company under Section 2.2); (e) reverse engineer, decompile, disassemble or otherwise attempt to derive the source code for the Software; (f) remove, alter or obscure any proprietary notices on the Software or Documentation; or (g) allow third parties to access or use the Software, including as part of a service provider, outsourcing, or time-sharing arrangement (other than a Hosting Company under Section 2.2).
2.4 Open Source Components. The Product may be distributed with or contain or use certain components distributed under open source, freeware, shareware, or similar licensing or distribution models (“Open Source Components”) and are not subject to some or all of the terms and conditions ofSections 2.1 (Software License) and 2.2 (Restrictions on Use).
2.5 Global Security Services. For such period as Licensee is an authorized subscriber, Cyphort shall provide the threat detection, monitoring and updating services ordered by Licensee as specified in the applicable ordering document (“Services”). The Software includes certain configurable system settings that enable Cyphort to receive malware metadata and diagnostics of the Product. Licensee may disable such feature.
2.6 Support. For such period as Licensee is an authorized subscriber, Cyphort shall provide support and maintenance services for the Product, as set forth in the applicable ordering document and at www.cyphort.com/support (“Support”).
2.7 Licenses Required For Third-Party Software. The Product may require Licensee to run multiple instances of third-party operating systems and/or application programs. Licensee is responsible for obtaining and complying with any licenses necessary to run any such third-party operating systems and/or application programs that are not provided on the Hardware.
2.8 Termination. This Agreement shall commence on the date of first delivery of the Product or, if earlier, the effective date specified in the applicable ordering document, and shall continue for the duration specified in the applicable ordering document unless sooner terminated as set forth below. Either party may terminate this Agreement immediately upon written notice if the other party materially breaches this Agreement and fails to correct the breach within thirty (30) days of written notice from the terminating party specifying the breach. Upon any expiration or termination, all licenses granted to Licensee in this Agreement will terminate and Licensee (and if applicable, the Hosting Company) shall (i)immediately cease using the applicable Software and Documentation, and (ii)certify to Cyphort within fifteen (15) days after termination that Licensee has destroyed, or has returned to Cyphort, such Software and Documentation, and all copies thereof. Termination of this Agreement shall not relieve Licensee of its obligation to pay all fees contracted by Licensee. The following sections shall survive termination or expiration of this Agreement: 1, 2.8, 4, 5, 6, 7, 8, 9 and 10.
3. FEES, AUDIT AND DELIVERY.
3.1 Fees and Payment. Licensee shall pay all fees set forth in the applicable ordering document net thirty (30) days from the date of invoice. Fees for Product(s) will be invoiced at time of first delivery. All other fees will be invoiced in advance. All fees are nonrefundable. Licensee will be responsible for all taxes resulting from the purchases other than taxes on Cyphort’s net income.
3.2 Audit. Cyphort may, at its expense no more than once per year, audit Licensee’s use of the Software. Any such audit shall not unreasonably interfere with Licensee’s business activities. If an audit reveals that Licensee has paid Cyphort a lower amount than corresponds to Licensee’s total Usage Level (both authorized and unauthorized), Cyphort reserves the right to invoice Licensee for the difference, based on the current list price in effect at the time the audit is completed. If the underpayment exceeds 10% of the total license fees that the Licensee should have paid during the period of such unauthorized use (fees paid for authorized use plus additional fees invoiced as a result of the audit), Cyphort reserves the right to require Licensee to pay Cyphort’s reasonable costs of conducting the audit.
3.3 Delivery. Unless otherwise specified in the applicable ordering document, delivery of any Product containing Hardware shall occur FOB Cyphort’s point of shipment to a common carrier whereupon risk of loss to the Product shall pass to Licensee. Licensee shall be responsible for all freight, handling and insurance charges. Title to the Hardware will pass from Cyphort to Licensee at the time of full payment by Licensee to Cyphort. Delivery of Product containing only Software shall be by download by Licensee from a secure website provided by Cyphort and shall be deemed complete on the date that Cyphort gives Licensee the request for information sufficient to enable Cyphort to provide access to the download site for the Software.
4. PROPRIETARY RIGHTS.
The Software is licensed and not sold to Licensee. Cyphort and its suppliers exclusively own all Intellectual Property Rights in and to the Software, and any modifications, improvements, enhancements, customizations, Updates, or derivative works thereof. No title or ownership or any Intellectual Property Rights passes under this Agreement, and all rights not expressly granted to Licensee in this Agreement are reserved. Cyphort shall be free to use or incorporate any feedback or other suggestions about the Product(s) without any compensation, obligation or attribution.
5. WARRANTIES; DISCLAIMER.
Cyphort warrants that the Software, will operate substantially in accordance with this Agreement and the Documentation for ninety (90) days from the earlier of the date of delivery of the Product, or, the date of first delivery of the Software, as applicable. Licensee’s exclusive remedy and Cyphort’s sole liability for breach of this warranty is that Cyphort shall, at its own expense, use commercially reasonable efforts to correct or replace the Software. This warranty will only apply if (a) the Product is properly installed and used at all times and in accordance with the instructions for use; and (b) no modification, alteration or addition has been made to the Software by any person other than Cyphort or its authorized agents. EXCEPT FOR THE EXPRESS WARRANTIES ABOVE, CYPHORT AND ITS SUPPLIERS HEREBY DISCLAIM ALL OTHER WARRANTIES FOR THE PRODUCT, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. LICENSEE AGREES THAT NEITHER CYPHORT NOR ITS SUPPLIERS MAKES ANY WARRANTY THAT THE PRODUCT WILL BE ERROR FREE OR OPERATE WITHOUT INTERRUPTION. EXCEPT AS STATED ABOVE, CYPHORT AND ITS SUPPLIERS PROVIDE THE PRODUCT (INCLUDING ANY SOFTWARE) ON AN “AS IS” BASIS. Without limiting the generality of the foregoing, neither Cyphort nor its suppliers make any warranty that the Software identifies all known viruses, or that the Software will not occasionally erroneously report a virus in a title not infected by that virus. Cyphort provides no warranties with respect to Hardware or Open Source Components. Licensee shall have the benefit of any third party warranties, service agreements and infringement indemnities contained in the purchase agreements or licenses applicable to the Hardware or Open Source Components.
6. LIMITATION OF LIABILITY.
EXCEPT FOR CYPHORT’S INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 7 BELOW, NEITHER CYPHORT NOR ANY OF ITS SUPPLIERS SHALL BE LIABLE FOR ANY INDIRECT INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL THEORY, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION, EVEN IF CYPHORT KNOWS OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR CYPHORT’S INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 7 BELOW, REGARDLESS OF THE CAUSE OF ACTION OR THE FORM OF ACTION, CYPHORT’S TOTAL AGGREGATE CUMULATIVE LIABILITY FOR DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT RELATING TO A PARTICULAR PRODUCT THEREON SHALL NOT EXCEED THE PRICE PAID FOR SUCH PRODUCT. THIS SECTION SHALL APPLY EVEN IF AN EXCLUSIVE REMEDY OF LICENSEE HEREUNDER HAS FAILED OF ITS ESSENTIAL PURPOSE.
Cyphort shall defend at its own expense any claims, demands or suits (“Claims”) brought against Licensee by a third party alleging that the Software infringes upon any third party U.S. copyright or U.S. patent registered or issued as of the date of Product delivery or, the date of first delivery of the Software. Cyphort shall pay those costs and damages finally awarded against Licensee in connection with such Claims, or those costs and damages agreed to in a monetary settlement of such action provided that Licensee: (i) notifies Cyphort promptly in writing of the Claims; (ii) gives Cyphort sole control of the defense and settlement negotiations; and (iii) cooperates and, at Cyphort’s request and expense, assists in such defense. This Section 7 states Cyphort’s entire liability and licensee’s sole and exclusive remedy for any Claims. If the Software becomes, or in Cyphort’s opinion is likely to become, the subject of an infringement claim, then Cyphort may (at its option and expense) either: (a) procure for Licensee the right to continue using the Product; (b) replace or modify the Software so that it becomes non-infringing; or (c) terminate Licensee’s licenses to use the Software and refund a portion of any price Licensee paid for such Software prorated over a three year period from the date of purchase. Cyphort shall have no obligation hereunder arising from: (1) any use of the Product not in accordance with this Agreement (2) any use of any version of the Software other than the most current version made available to Licensee; (3) use of the Product in combination with other products or software not provided by Cyphort; (4) any modification of the Product by any person other than Cyphort or its authorized agents; or (5) any Open Source Components.
“Confidential Information” means any and all information related to a party’s business that is labeled or identified as “confidential” or “proprietary”; or otherwise is of such a type or disclosed in such a way that a reasonable person would understand that the information disclosed is confidential or proprietary, including without limitation software, source code and specifications, trade secrets, development plans, content, technical information, business forecasts and strategies, and information regarding personnel, customers and suppliers. Without limiting the foregoing, the Product, Documentation, Support and Services are the “Confidential Information” of Cyphort. Each party agrees (i) to hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party by using the same degree of care, but no less than a reasonable degree of care, as the receiving party uses to protect its own Confidential Information of a like nature against unauthorized dissemination and use, (ii) not to disclose such Confidential Information to any third parties, except described herein and (iii) not to use any Confidential Information except for the purposes of this Agreement. Each party may disclose the other party’s Confidential Information to its responsible employees and contractors with a bona fide need to know, but only to the extent necessary to carry out the purposes of this Agreement, and only if such employees and contractors are subject to a nondisclosure agreement sufficient to protect the other party’s Confidential Information hereunder. The restrictions set forth in this section will not apply to any Confidential Information that the receiving party can demonstrate (a) was known to it prior to its disclosure by the disclosing party; (b) is or becomes publicly known through no wrongful act of the receiving party; (c) has been rightfully received from a third party authorized to make such disclosure without restriction; (d) is developed by the receiving party without reference to the disclosing party’s Confidential Information. The parties agree that a breach of this section may cause irreparable damage which money cannot satisfactorily remedy and therefore, the parties agree that in addition to any other remedies available at law or hereunder, the disclosing party will be entitled to seek injunctive relief for any threatened or actual disclosure by the receiving party.
9. U.S. GOVERNMENT END USERS.
The Product is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. The Software is provided to any federal, state or local government agency only subject to the terms and conditions of this Agreement and such additional terms as are agreed by the parties in a properly executed writing and that are consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4.
This Agreement will be governed by and construed under the laws of the State of California without regard to its conflict of laws provisions. The federal and state courts located in Santa Clara County, California will have exclusive jurisdiction to adjudicate any dispute arising out of this Agreement. All notices, under this Agreement must be delivered in writing by courier, by facsimile or by certified or registered mail (postage prepaid and return receipt requested) and shall be effective upon the earlier of receipt or three (3) business days after being deposited in the mail as required above. The parties hereto are independent contractors. Nothing in this Agreement shall be deemed to create an agency, employment, partnership, fiduciary or joint venture relationship between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent. Licensee may not assign or transfer this Agreement or its rights and obligations under this Agreement. Licensee agrees not to export the Product in violation of the laws and regulations of the United States or any other nation. Any delay in or failure of performance by either party under this Agreement, other than a failure to pay amounts when due, shall not be considered a breach of this Agreement and shall be excused to the extent caused by any occurrence beyond the reasonable control of such party. If any legal action is brought to enforce this Agreement, the prevailing party shall be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. This Agreement may be amended only by a written document signed by both parties. If any provision of this Agreement is held invalid or unenforceable, such provision shall be reformed to the extent necessary to make it valid and enforceable and the remaining provisions shall continue in full force and effect. This Agreement constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. Without limiting the generality of the foregoing, this Agreement will supersede the terms of Licensee’s form of purchase order, acknowledgment or other business forms notwithstanding Cyphort’s acceptance or acknowledgment of such business forms. This Agreement may not be modified or amended except in writing signed by a duly authorized representative of each party.
11. FREE TRIAL OR PROOF OF CONCEPT.
If Licensee has registered for a free trial or proof of concept, Cyphort will make one or more Products available to Licensee on a temporary basis free of charge until the earlier of (a) 30 days after Licensee registered for the trial or proof of concept of the Products or (b) the start date of Licensee’s paid license for the same Products, if any. Additional terms and conditions for the trial or proof of concept may appear on the registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. DURING THE FREE TRIAL OR PROOF OF CONCEPT, ANY DATA ENTERED INTO THE PRODUCTS AND ANY ANALYSES AND RESULTS OBTAINED IN THE COURSE OF LICENSEE’S USE OF THE PRODUCTS MAY BE PERMANENTLY LOST UNLESS LICENSEE PURCHASES THE SAME OR UPGRADED PRODUCTS AS THOSE COVERED BY THE TRIAL OR PROOF OF CONCEPT BEFORE THE END OF THE TRIAL PERIOD. NOTWITHSTANDING SECTION 5 (WARRANTIES; DISCLAIMER), DURING THE FREE TRIAL OR PROOF OF CONCEPT THE PRODUCTS ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY WHATSOEVER.
The EULA covering the use of the Apple® Mac® Mini, and OSX Mavericks can be found in Apple’s
Software Licensing agreement, which can be found on Apple’s web site at: