BY DOWNLOADING, INSTALLING, COPYING, ACCESSING OR USING THE NOPSEC SOFTWARE, YOU AGREE TO THE TERMS OF THIS END USER LICENSE AGREEMENT. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON OR COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY OR LEGAL ENTITY TO THESE TERMS.
IF YOU DO NOT AGREE TO THESE TERMS:
DO NOT DOWNLOAD, INSTALL, COPY, ACCESS OR USE THE NOPSEC SOFTWARE.
- a) “NopSec” means NopSec, Inc. with offices located at 20 Jay Street Suite 902, Brooklyn, New York, 11201
- b) “Documentation” means explanatory materials in printed, electronic or online form accompanying the Software in English and other languages, if available.
- c) “Software” means the NopSec Software licensed from NopSec and purchased from NopSec.
- d) “EULA” means this NopSec End User License Agreement.
- e) “Subsidiary” means any entity controlled by you through greater than fifty per cent (50%) ownership of the voting securities.
- f) “Support” or “Technical Support” means the support services offered by NopSec for the support and maintenance of the Software in the NopSec Technical Support and Maintenance Terms.
- g) “Updates” have the meaning set forth in the NopSec Technical Support and Maintenance Terms.
- h) “Upgrade” has the meaning set forth in the NopSec Technical Support and Maintenance Terms.
- License Grant; Proprietary Rights
Subject to the terms and conditions of this EULA, NopSec hereby grants to you a non-exclusive, non- transferable right to use the Software (for the purpose of this EULA, to use the Software includes to download, install, and access the Software) solely for your own internal business operations. You are not granted rights to Updates and Upgrades unless you have purchased Support (or a service subscription granting rights to Updates and Upgrades).
The Software, including, without limitation, its object code and source code, whether or not provided to you, is strictly confidential to NopSec and its third party partners and licensors. NopSec (or its licensors) owns exclusively and reserves all – and you may not exercise any – right, title, and interest in and to the Software, including, without limitation, all intellectual property rights in and to the Software, except to the extent of the limited Software use license granted to you in this EULA. This EULA is not an agreement of sale, and no title, intellectual property rights, or ownership rights to the Software are transferred to you pursuant to this EULA. You acknowledge and agree that the Software and all ideas, methods, algorithms, formulae, processes, and concepts used in developing or incorporated into the Software, all future Updates and Upgrades, and all other improvements, revisions, corrections, bug-fixes, hot- fixes, patches, modifications, enhancements, releases, signature sets, upgrades, and policy and database updates and other updates in, of, or to the Software, all derivative works based upon any of the foregoing, and all copies of the foregoing are trade secrets and proprietary property of NopSec or its licensors, having great commercial value to NopSec and its licensors.
- Term and Termination
Term: The license is effective for a limited period of time (“Term”) in the event that such Term is set forth in a purchase order or other agreement, otherwise the licenses shall be perpetual.
Termination: Without prejudice to your payment obligations, you may terminate your license at any time by uninstalling the Software. NopSec may terminate your license in the event that you materially breach the terms of this EULA and you fail to cure such breach within thirty (30) days of receiving notice of such breach. Upon such termination, you shall promptly return or destroy all copies of the Software and Documentation to NopSec.
Subsidiaries; Managing Parties: You may permit use of the Software in accordance with the terms of this EULA by a subsidiary only for so long as such entity remains your subsidiary. You also may permit a third party with which you enter into a contract to manage your information technology resources (“Managing Party”), provided that (i) the Managing Party only uses the Software for your internal operations and not for the benefit of another third party or the Managing Party, (ii) the Managing Party agrees to comply with the terms and conditions of this EULA and (iii) you provide NopSec with written notice that a Managing Party will be using the Software on your behalf. You shall be responsible and fully liable for each subsidiary’s and Managing Party’s compliance with or breach of the terms of this EULA.
General Restrictions: You may not, and you may not cause or allow any third party to: (i) decompile, disassemble or reverse-engineer the Software; or create or recreate the source code for the Software; (ii) remove, erase, obscure, or tamper with any copyright or any other product identification or proprietary
rights notices, seal, or instructional label printed or stamped on, affixed to, or encoded or recorded in or on any Software or Documentation; or fail to preserve all copyright and other proprietary notices in all copies of the Software and Documentation made by you; (iii) lease, lend or use the Software for timesharing or service bureau purposes; sell, market, license, sublicense, distribute, or otherwise grant to any person or entity any right to use the Software except to the extent expressly permitted in this EULA; or use the Software to provide, alone or in combination with any other product or service, any product or service to any person or entity, whether on a fee basis or otherwise; (iv) modify, adapt, tamper with, translate, or create derivative works of the Software or the Documentation; combine or merge any part of the Software or Documentation with or into any other software or documentation; or refer to or otherwise use the Software as part of any effort to develop software (including, without limitation, any routine, script, code, or program) having any functional attributes, visual expressions, or other features similar to those of the Software or to compete with NopSec; or (v) except with NopSec’s prior written permission, publish any performance or benchmark tests or analysis relating to the Software.
- Technical Support and Maintenance
NopSec shall provide you with any Technical Support for the Software you have purchased in accordance with the terms and conditions of NopSec’s Technical Support and Maintenance Terms After any support or service subscription period has expired, you have no further rights to receive any Support including Upgrades, Updates and telephone support. NopSec may change the Support offered at any time, effective as of the commencement of any renewal period. You will secure any and all privacy-related rights and permissions from individual persons as may be required by regulation, statute, or other law or your internal policies or guidelines in order to disclose to NopSec, in connection with NopSec’s performance of Support or otherwise under this EULA, applicable personally identifiable information, data, and material.
- Limited Warranty and Disclaimer
Limited Warranty: NopSec warrants that, for a period of sixty (60) days from the purchase date (“Warranty Period”), the Software licensed hereunder will perform substantially in accordance with the Documentation (the “Limited Warranty”).
Exclusive Remedy: In case of any breach of the above Limited Warranty, as your exclusive remedy and NopSec’s entire obligation and liability NopSec will (i) repair or replace the Software or (ii) if such repair or replacement would in NopSec’s opinion be commercially unreasonable, upon NopSec’s receipt of your written representation and promise that you have removed all instances of the Software and will not use the Software, refund the price paid by you for the applicable Software.
Exclusion of Warranty: THE ABOVE LIMITED WARRANTY WILL NOT APPLY IF: (i) THE SOFTWARE IS NOT USED IN ACCORDANCE WITH THIS EULA OR THE DOCUMENTATION, (ii) THE SOFTWARE OR ANY PART THEREOF HAS BEEN MODIFIED BY ANY ENTITY OTHER THAN NOPSEC OR ITS LICENSORS OR (iii) A MALFUNCTION IN THE SOFTWARE HAS BEEN CAUSED BY ANY EQUIPMENT OR SOFTWARE NOT SUPPLIED BY NOPSEC.
Disclaimer: EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE, THE SOFTWARE IS PROVIDED “AS IS” AND NOPSEC MAKES NO REPRESENTATIONS OR WARRANTIES, AND NOPSEC DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS, ORAL
OR WRITTEN, EXPRESS OR IMPLIED, ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN TRADE, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR SYSTEMS INTEGRATION. WITHOUT LIMITING THE FOREGOING, NOPSEC MAKES NO WARRANTY, REPRESENTATION, OR GUARANTEE AS TO THE SOFTWARE’S USE OR PERFORMANCE AND DOES NOT WARRANT, REPRESENT, OR GUARANTEE THAT THE OPERATION OF THE SOFTWARE WILL BE FAIL- SAFE, UNINTERRUPTED, OR FREE FROM ERRORS OR DEFECTS OR THAT THE SOFTWARE WILL PROTECT AGAINST ALL POSSIBLE THREATS.
High Risk Systems Terms: THE SOFTWARE MAY FAIL AND IS NOT DESIGNED, DEVELOPED, TESTED, OR INTENDED TO BE RELIABLE IN THE CONTEXT OF HIGH RISK SYSTEMS. WITHOUT LIMITING ANYTHING ELSE, DIGITWARE HAS NO RESPONSIBILITY FOR, AND YOU WILL INDEMNIFY AND HOLD HARMLESS NOPSEC FROM, ALL CLAIMS, SUITS, DEMANDS, AND PROCEEDINGS ALLEGING, CLAIMING, SEEKING, OR ASSERTING, ANY LIABILITY, LOSS, OBLIGATION, RISK, COST, DAMAGE, AWARD, PENALTY, SETTLEMENT, JUDGMENT, FINE, OR EXPENSES (INCLUDING ATTORNEYS FEES) ARISING FROM OR IN CONNECTION WITH YOUR USE OF THE SOFTWARE ON OR IN A HIGH RISK SYSTEM, INCLUDING, WITHOUT LIMITATION, THOSE THAT (i) COULD HAVE BEEN PREVENTED BY DEPLOYMENT OF FAIL- SAFE OR FAULT-TOLERANT FEATURES TO THE HIGH RISK SYSTEM, (ii) ARE BASED ON A CLAIM, ALLEGATION, OR ASSERTION THAT THE FUNCTIONING OF THE HIGH RISK SYSTEM DEPENDS OR DEPENDED ON THE FUNCTIONING OF THE SOFTWARE OR THAT THE FAILURE OF THE SOFTWARE CAUSED A HIGH RISK SYSTEM TO FAIL.
- Limitation of Remedies and Damages
NEITHER PARTY SHALL BE LIABLE TO THE OTHER UNDER THIS EULA OR IN CONNECTION WITH ITS SUBJECT MATTER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL, OR EXTRA-CONTRACTUAL DAMAGES OF ANY KIND, LOSS OF GOODWILL, LOSS OF PERSONNEL SALARIES, LOST PROFITS OR REVENUE, DAMAGES DUE TO WORK STOPPAGE AND/OR COMPUTER FAILURE OR MALFUNCTION, AND/OR COSTS OF PROCURING SUBSTITUTE SOFTWARE OR SERVICES, WHETHER OR NOT FORESEEABLE, EVEN IF THE EXCLUSIVE REMEDIES PROVIDED BY THIS EULA FAIL OF THEIR ESSENTIAL PURPOSE AND EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OR PROBABILITY OF SUCH DAMAGES.
REGARDLESS OF WHETHER THE CLAIM FOR SUCH DAMAGES IS BASED IN CONTRACT, TORT AND/OR ANY OTHER LEGAL THEORY, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY FOR DIRECT DAMAGES UNDER THIS EULA OR IN CONNECTION WITH ITS SUBJECT MATTER EXCEED THE AMOUNT OF TOTAL FEES PAID OR PAYABLE BY YOU FOR THE SOFTWARE GIVING RISE TO SUCH CLAIM DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. NO PROVISION OF THIS EULA SHALL EXCLUDE OR LIMIT IN ANY WAY (I) THE LIABILITY OF EITHER PARTY FOR DEATH OR PERSONAL INJURY CAUSED BY
NEGLIGENCE OR (II) YOUR LIABILITY FOR EXCESS USAGE OF AND/OR ANY BREACH OF NOPSEC OR ITS LICENSORS’ INTELLECTUAL PROPERTY RIGHTS IN THE SOFTWARE.
THE LIMITATION OF LIABILITY IN THIS SECTION IS BASED ON THE FACT THAT END USERS USE THEIR COMPUTERS FOR DIFFERENT PURPOSES. THEREFORE, ONLY YOU CAN IMPLEMENT BACK-UP PLANS AND SAFEGUARDS APPROPRIATE TO YOUR NEEDS IN THE EVENT THAT AN ERROR IN THE SOFTWARE CAUSES COMPUTER PROBLEMS AND RELATED DATA LOSSES. FOR THESE BUSINESS REASONS, YOU AGREE TO THE LIMITATIONS OF LIABILITY IN THIS SECTION AND ACKNOWLEDGE THAT WITHOUT YOUR AGREEMENT TO THIS PROVISION, THE FEE CHARGED FOR THE SOFTWARE WOULD BE HIGHER.
- Intellectual Property Indemnity
Indemnity: NopSec or its licensors will indemnify, and, at its election, defend, you against claims asserted against you in a suit or action if: (i) the claim is for direct patent infringement or direct copyright infringement, or for NopSec’s trade secret misappropriation and (ii) the claim is (A) asserted against the Software, alone and not in combination with anything or (B) a combination of the Software.
Exclusions: Notwithstanding anything else in this EULA, NopSec has no obligation to indemnify or defend you for claims asserted, in whole or in part, against:
- technology or designs that you gave to NopSec; or
- modifications or programming to Software that were made by anyone other than NopSec.
Conditions: As a condition of NopSec’s indemnity obligations, you must provide to NopSec: (i) prompt written notice of the claim and your agreement to give NopSec sole control over the defense and settlement of the claim; and (ii) your full and timely cooperation.
NopSec’s Consent: NopSec will not be responsible for any cost, expense, or compromise that you make or incur without NopSec’s prior written consent.
Remedies: NopSec may, at its sole discretion and at is expense: (i) procure for you the right to continue using the Software; (ii) replace the Software with a non-infringing Software; (iii) modify the Software so that it becomes non- infringing; or (iv) upon your return of the Software to NopSec, and/or removal of the Software from your systems, refund the residual value of the purchase price paid by you for the infringing Software, depreciated using a straight-line method of depreciation over a three (3) year period from the date of delivery of the Software to you.
Personal Indemnity: The foregoing indemnity is personal to you. You may not transfer or to anyone, including your customers.
Exclusive Remedy: This indemnity section states NopSec’s entire obligation and your exclusive remedy for claims of patent or copyright infringement, or trade secret misappropriation, made in whole or part against the Software.
- Evaluation and Beta Software
Evaluation Software: If the Software, or any part thereof, has been identified by NopSec as “Evaluation” Software, then the provisions of this section apply and shall supersede any other conflicting term of this EULA. Your royalty-free, non- transferable, limited license to use the Evaluation Software, for evaluation purposes only, is limited to thirty (30) days unless otherwise agreed to in writing by NopSec. The Evaluation Software may contain errors or other problems that could cause system or other failures and data loss. Consequently, Evaluation Software is provided to you “AS IS” and NopSec disclaims any warranty or liability obligations to you of any kind. Support is not available for Evaluation Software. Any information about the Evaluation Software gathered from its use shall be used solely for evaluation purposes and shall not be provided to any third parties. If you fail to destroy the Evaluation Software after the evaluation period has expired, NopSec may, at its discretion, invoice you in an amount equal to the cost for the Software and you shall pay such invoice upon receipt. WHERE LEGAL LIABILITY CANNOT BE EXCLUDED, BUT MAY BE LIMITED, NOPSEC’S LIABILITY AND THAT OF ITS SUPPLIERS AND LICENSORS UNDER THIS EULA RELATED TO EVALUATION SOFTWARE, OR IN CONNECTION WITH EVALUATION SOFTWARE, SHALL BE LIMITED TO THE SUM OF FIFTY ($50.00) U.S. DOLLARS.
Beta Software: If the Software, or any part thereof, that you have received has been identified by NopSec as “Beta” Software, then the provisions above shall apply accordingly. NopSec shall have no obligation to you to further develop or publicly release the Beta Software. Support is not available for Beta Software. If requested by NopSec, you will provide feedback, in a manner reasonably requested by NopSec, to NopSec regarding testing and use of the Beta Software, including error or bug reports. You agree to grant NopSec a perpetual, non-exclusive, royalty-free, worldwide license to use, copy, distribute and make derivative works and incorporate the feedback into any NopSec product at NopSec’s sole discretion. Upon receipt of a later unreleased version of the Beta Software or release by NopSec or its licensors of a publicly released the commercial version of the Beta Software, you agree to return or destroy all earlier Beta Software received from NopSec.
- Notice to U.S. Government End Users
The Software and accompanying Documentation are deemed to be “commercial computer software” and “commercial computer software documentation”, respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the Software and accompanying Documentation by the United States Government shall be governed solely by the terms of this EULA and shall be prohibited except to the extent expressly permitted by the terms of this EULA.
- Privacy and Collection of Personal or System Information
The Software, Support or service subscription may employ applications and tools to collect personally identifiable, sensitive or other information about you and users (e.g., including, without limitation, your and users’ name, address, e-mail address and payment details), their computers, files stored on their computers, or their computers’ interactions with other computers (e.g., including, without limitation, information regarding network, licenses used, hardware type, model, hard disk size, CPU type, disk type, RAM size, 32 or 64 bit architecture, operating system types, versions, locale, BIOS version, BIOS model, total scanners deployed, database size, system telemetry, device ID, IP address, location, content, processes and services information, frequency, information about third party products installed, extracts of logs created by NopSec, usage patterns of NopSec products and specific features, etc.) (collectively, “Data”).
The collection of this Data may be necessary to provide you and users with the relevant Software, Support or service subscription functionalities as ordered (e.g., including, without limitation, detecting and reporting threats and vulnerabilities on your and users’ computer network), to enable NopSec or its licensors to improve the Software, Support or service subscription (e.g., including, without limitation, content synchronization, device tracking, troubleshooting, etc.), and to further or improve overall security for you and users. You may be required to uninstall the Software or disable Support or its service subscription to stop further Data collection that supports these functions.
Upon thirty (30) days’ prior notice NopSec may request, and you must provide, a Software-facilitated system-generated report (the “System Report”) verifying your Software deployment. You acknowledge that the System Report is based on technological features of the Software that provide Software deployment verification. If the Software does not contain technological features that provide Software deployment verification, you will prepare and provide to NopSec within the thirty (30) day period an accurate Software deployment verification report for the Software. NopSec will only request the System Report (or your prepared Software deployment verification report) one time per year and will not unreasonably interfere with the conduct of your business. However, if a System Report or your prepared Software deployment verification report identifies that you are out of compliance with the license terms of this EULA, you will be required to purchase additional licenses and pay any reinstatement fees associated with the licenses and/or support and an out-of-compliance fee may also be assessed.
- Export Controls
You acknowledge that the Software is subject to U.S. and when applicable, European Union export regulations. You shall comply with applicable export and import laws and regulations for the jurisdiction in which the Software will be imported and/or exported. You shall not export the Software to any individual, entity or country prohibited by applicable law or regulation. You are responsible, at your own expense, for any local government permits, licenses or approvals required for importing and/or exporting the Software. If NopSec receives notice that you are or you become identified as a sanctioned or restricted party under applicable law, then NopSec will not be obligated to perform any of its obligations under this EULA if such performance would result in violation of the sanctions or restrictions.
- Governing Law
All disputes arising out of or relating to this EULA or its subject matter will be governed by the substantive laws of the State of New York. This EULA will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. The Uniform Computer Information Transactions Act as enacted shall not apply. The United States District Court for the Southern District of New York shall have exclusive jurisdiction over all disputes arising out of or relating to this EULA or its subject matter.
Each party hereto acknowledges that by reason of its relationship with the other party hereunder, it may have access to confidential information and materials concerning the other party’s business, technology, and/or products that is confidential to the other party (“Confidential
Information”). Each party’s Confidential Information is of substantial value to the party, which value could be impaired if such information was disclosed to third parties or used in violation of this EULA. Written or other tangible Confidential Information must at the time of disclosure be identified and labeled as Confidential Information belonging to the disclosing party. When disclosed orally or visually, Confidential Information must be identified as confidential at the time of the disclosure, with subsequent confirmation in writing within fifteen (15) days after disclosure. Each party agrees that it will not use in any way for its own account or the account of any third party, such Confidential Information, except as authorized under this EULA, and will protect Confidential Information at least to the same extent as it protects its own Confidential Information and to the same extent that a reasonable person would protect such Confidential Information. Neither party may use the other party’s Confidential Information except to perform its duties or exercise its rights under this EULA. The Confidential Information restrictions will not apply to Confidential Information that is (i) already known to the receiving party at the time of access hereunder, (ii) becomes publicly available through no wrongful act of the receiving party, (iii) independently developed by the receiving party without benefit of the disclosing party’s Confidential Information, (iv) has been rightfully received from a third party not under obligation of confidentiality or (v) is required to be disclosed by law, provided the party compelled to disclose the Confidential Information provides the party owning the Confidential Information with prior written notice of disclosure adequate for the owning party to take reasonable action to prevent such disclosure, where reasonably possible. Unless otherwise agreed to by both parties, upon termination of this EULA or an applicable addendum to this EULA, each party will return the other party’s Confidential Information upon the expiration or earlier termination of the licenses granted under this EULA.
Except for actions for non-payment or breach of NopSec’s proprietary rights in the Software and Documentation, no action, regardless of form, arising out of this EULA may be brought by either party more than two (2) years after a party knew or should have known of the claim.
Any terms of this EULA, which by their nature should survive the termination of this EULA, shall survive such termination.
NopSec may assign this EULA, in whole or in part, at any time subject to your receiving prior written notice.
This EULA, including all documents incorporated by reference, represents the entire agreement between the parties and expressly supersedes and cancels any other communication, representation or advertising whether oral or written, on the subjects herein. If you issue an order to NopSec and the terms and conditions of the order conflict with the terms and conditions of (i) this EULA or (ii) a purchase order, then the terms and conditions specified in this EULA and in the purchase order shall control. No terms or conditions of any pre-printed or boilerplate purchase order of yours or other document of yours will govern the transactions
contemplated by this EULA. This EULA may not be modified except by a written addendum issued by a duly authorized representative of NopSec. No provision hereof shall be deemed waived unless such waiver shall be in writing and signed by NopSec. If any provision of this EULA is held invalid, unenforceable, or prohibited under law, then such provision will be deemed restated to reflect the original intention of the parties as nearly as possible in accordance with applicable law and the remainder of this EULA shall continue in full force and effect.
All notices, requests, demands and determinations for NopSec under this EULA (other than routine operational communications) shall be sent to:
NopSec, Inc. 20 Jay Street Suite 902 Brooklyn, New York 11201 Attention: Legal Notices
and to you at the address provided on the purchase order for the Software.