Terms of Use
CRYTICA SECURITY, INC.
END USER LICENSE AGREEMENT
This End User License Agreement (this “Agreement”) is between Crytica Security, Inc., a Delaware corporation (the “Company”)) and the applicable customer (“Customer” or “you”) that has licensed the Software (as defined below) directly from the Company or through an authorized reseller (“Reseller”). Any references to a “Party” in this Agreement will mean Customer and the Company, as applicable. By installing, copying, or otherwise using the Software, or by purchasing a license to the Software, you agree to all of the terms and conditions of this Agreement. If you use the Software on behalf of a company or other entity, then “you” or “Customer” includes both you and that entity, and you represent and warrant that (a) you are an authorized representative of the entity with the authority to bind the entity to this Agreement, and (b) you agree to this Agreement on the entity’s behalf. The Parties agree as follows:
1. Definitions.
(a) “Authorized Devices” means the number of devices set forth on the applicable Order Form(s). Customer may increase the number of Authorized Devices subject to this Agreement by providing written notice to the Company. Any increase in the number of Authorized Devices will be subject to an additional fee in accordance with the price list set forth on the Order Form.
(b) “Device Owner” means the owner or lessor of Authorized Devices.
(c) “Documentation” means Company’s user manuals, handbooks, and installation guides, as applicable, relating to the Software made available by Company to Customer from time to time.
(d) “Order Form” means the order form, purchase order, subscription confirmation, or other ordering document that Customer completes or accepts when obtaining a license to the Software, whether directly from Company or through an authorized Reseller. Each Order Form, regardless of source, will be deemed part of this Agreement and subject to its terms and conditions.
(e) “Software” means the software offerings licensed by Customer as identified on the relevant Order Form, together with any updates, modifications and improvements of any of the foregoing that are furnished by Company under this Agreement.
(f) “Updates” means any updates, bug fixes, patches, or other error corrections to the Software that Company generally makes available free of charge to all licensees of the Software.
2. License.
(a) License Grant. Subject to and conditioned on Customer’s payment of Fees and compliance with the terms and conditions of this Agreement, Company hereby grants Customer a non-exclusive, non-sublicensable, and non-transferable license during the Term to: (i) use the Software in accordance with the Documentation in up to the number of Authorized Devices set forth in the applicable Order Form; and (ii) copy and use the Documentation solely for Customer’s internal business purposes in connection with Customer’s use of the Software. The total number of Authorized Devices will not exceed the number set forth in the Order Form, except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the license fees payable hereunder.
(b) Use Restrictions. Customer shall not use the Software or Documentation for any purposes beyond the scope of the license granted in this Agreement. Without limiting the foregoing and except as otherwise expressly set forth in this Agreement, Customer shall not at any time, directly or indirectly: (i) copy, modify, or create derivative works of the Software or the Documentation, in whole or in part; (ii) rent, lease, lend, sell, resell, sublicense, assign, distribute, publish, transfer, or otherwise make available or share the Software or the Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Software, in whole or in part; (iv) remove any proprietary notices from the Software or the Documentation; (v) permit any third party to use or access the Software (except for Authorized Devices as permitted herein); (vi) access the Software in order to build a competitive product or services; (vii) transmit unlawful, infringing or harmful data or code to or from; (viii) use the Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; or (ix) otherwise use the Software except as expressly permitted hereunder.
(c) Reservation of Rights. Company reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Software.
(d) Usage Data. Company reserves the right to monitor Customer’s use of the Software and to review and analyze usage patterns, detection metrics, Software effectiveness, and other related data regarding the Software (“Usage Data”). During and after the term of this Agreement, Company may aggregate, deidentify, or anonymize the Usage Data (“Deidentified Usage Data”) and may use such Deidentified Usage Data for its own research and development purposes, for white papers, for marketing, and other business purposes. During and after the term of this Agreement, Company may also collect and use Deidentified Usage Data, to analyze and improve the Software and for distribution in general benchmarking data and industry reports, provided that any reported user data is aggregated and anonymized such that no personally identifying information of Customer or its users is revealed.
(e) Updates. Company may make available to Customer updates and upgrades to the Software as such updates and upgrades are generally made available to Company’s other customers. However, Customer acknowledges and agrees that purchases of Software are not contingent on the delivery of any future functionality or features.
3. Customer Responsibilities. Customer is responsible and liable for all uses of the Software and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Device Owners, and any act or omission by Device Owners that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer.
4. Patch Management. The Software may identify and respond to changes in Customer’s operating environment, including those resulting from third-party patches or updates. These notifications are part of the Software’s standard functionality. To the extent Customer maintains a patch management system or equivalent mechanism to track authorized changes, the Software is capable of incorporating such signals to reduce unnecessary notifications. In the absence of such input, the Software may notify Customer of any detected changes regardless of origin. For clarity, the generation of alerts due to changes not flagged or otherwise communicated through Customer’s patch management processes shall not constitute a defect in the Software or be considered a material breach of this Agreement.
5. Fees and Payment.
(a) Fees. Customer shall pay the fees (“Fees”) set forth on the applicable Order Form. If the Order Form was issued by a Reseller, then Customer shall pay all Fees directly to the Reseller in accordance with the terms of the Order Form, and Company shall have no obligation to invoice Customer or collect payment. If the Order Form was issued by Company, then Customer shall pay all Fees to Company in US dollars on or before the due date set forth in the Order Form, without offset or deduction. If Customer fails to make any payment to Company when due, in addition to all other remedies that may be available: (i) Company may charge interest on the past due amount at the rate of 1.5% per month or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Company for all reasonable costs incurred by Company in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for 15 days following written notice thereof, Company may suspend access to the Software until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other person by reason of such suspension. Customer shall remain responsible for all amounts due under the Order Form during any suspension period.
(b) Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Company’s income.
6. Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure, as shown by documentary evidence; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party without reference to the other Party’s Confidential Information, as shown by documentary evidence. The receiving Party shall: (1) take all actions that are necessary or reasonable to safeguard the secrecy and confidentiality of, and proprietary rights to, the Confidential Information disclosed or provided by the other Party; (2) shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder; and (3) shall not use disclosing Party’s Confidential Information except to perform its obligations under this Agreement. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
7. Intellectual Property Ownership; Feedback.
(a) Customer acknowledges that, as between Customer and Company, Company owns all right, title, and interest, including all intellectual property rights, in and to the Software and Documentation, including any modifications or updates thereto, and any Feedback submitted by Customer. Customer does not acquire any other rights, express or implied, in the Software and the Documentation other than those rights expressly granted under this Agreement. Customer acknowledges that the Software and the Documentation embody Company’s Confidential Information and that they are protected by copyright and other intellectual property laws.
(b) Feedback. If Customer or any Device Owner sends or transmits any communications or materials to Company suggesting or recommending changes to the Software or Documentation, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Company is free to use such Feedback for any purpose. Customer hereby assigns to Company on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Company is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Company is not required to use any Feedback. The Feedback is the sole and exclusive property of Company.
8. Limited Warranties and Warranty Disclaimer.
(a) Each Party hereby represents and warrants that: (i) it has all requisite power and authority to execute this Agreement and to perform its obligations hereunder; (ii) the execution, delivery, and performance of this Agreement shall not conflict with its charter or bylaws, or any agreement, order, or judgment by which it is bound and (iii) it has obtained all necessary permits and consents for the performance of its obligations hereunder.
(b) Company warrants that: (i) the Software will perform materially as described in the Documentation; and (ii) any services performed by the Company will be performed in a professional and workmanlike manner. The warranties set forth in Section 8(b) do not apply and become null and void if Customer breaches any provision of this Agreement, or if Customer, any Device Owner, or any other person provided access to the Software by Customer or any Device Owner: (i) installs or uses the Software on or in connection with any hardware or software not specified in the Documentation or expressly authorized by Company in writing; (ii) modifies or damages the Software; or (iii) misuses the Software, including any use of the Software other than as specified in the Documentation or expressly authorized by Company in writing.
(c) If any Software fails to comply with the warranty in Section 8(b), and such failure is not excluded from warranty, Company shall, subject to Customer’s promptly notifying Company in writing of such failure, at Company’s sole option, either: (i) repair or replace the Software, provided that Customer provides Company with all information Company reasonably requests to resolve the reported failure, including sufficient information to enable the Company to recreate such failure; or (ii) refund unused and prepaid Fees for such Software, subject to Customer’s ceasing all use of and, if requested by Company, returning to Company all copies of the Software. The remedies set forth in this Section 8(c) are Customer’s sole remedies and Company’s sole liability under the limited warranties set forth in Section 8(b).
(d) EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN SECTION 8(B), THE SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS” AND COMPANY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN SECTION 8(B), COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE SOFTWARE AND DOCUMENTATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, WILL DETECT ALL MALWARE, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
9. Indemnification.
(a) Company Indemnification.
(i) Company shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, and costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Software or Documentation, or any use of the Software or Documentation in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights, provided that Customer promptly notifies Company in writing of the claim, cooperates with Company, and allows Company sole authority to control the defense and settlement of such claim.
(ii) If such a claim is made or appears possible, Customer agrees to permit Company, at Company’s sole discretion, to (A) modify or replace the Software or Documentation, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Company determines that none of these alternatives is reasonably available, Company may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.
(iii) This Section 9(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Software in combination with data, software, hardware, equipment, or technology not provided by Company or authorized by Company in writing; (B) modifications to the Software not made by Company; or (C) use of the Software in a manner not authorized by this Agreement.
(b) Customer Indemnification. Customer shall indemnify, hold harmless, and, at Company’s option, defend Company from and against any Losses resulting from any Third-Party Claim based on Customer’s, or any Device Owner’s: (i) negligence or willful misconduct; (ii) use of the Software or Documentation in a manner not authorized or contemplated by this Agreement; (iii) use of the Software in combination with data, software, hardware, equipment, or technology not provided by Company or authorized by Company in writing; or (iv) modifications to the Software not made by Company, provided that Customer may not settle any Third-Party Claim against Company unless such settlement completely and forever releases Company from all liability with respect to such Third-Party Claim or unless Company consents to such settlement, and further provided that Company will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
(c) Sole Remedy. THIS SECTION 9 SETS FORTH CUSTOMER’S SOLE REMEDIES AND COMPANY’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SOFTWARE OR DOCUMENTATION INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. THIS SECTION 9 IS SUBJECT TO THE LIMITATION OF LIABILITY SET FORTH IN SECTION 10.
10. Limitations of Liability. EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS OR FOR BREACHES OF SECTION 6 (CONFIDENTIAL INFORMATION), IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (b) LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (c) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO COMPANY UNDER THIS AGREEMENT IN THE 12 PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
11. Term and Termination.
(a) Term. The initial term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement, will continue for one year from the Effective Date (the “Initial Term”). This Agreement will automatically renew for successive one-year terms unless either party gives the other party written notice of non-renewal at least 60 days prior to the end of the then-current term each, a “Renewal Term” and together with the Initial Term, the “Term”). If Customer obtained the Software through a Reseller, any renewal and renewal pricing will be established by the agreement with the Reseller; if purchased directly from Company, renewal pricing will be at Company’s then-current rates.
(b) Termination.
(i) Either Party may terminate this Agreement if the other Party (i) is in material breach of this Agreement, which breach is not cured within thirty (30) days after written notice of such breach, (ii) files for or is adjudicated bankrupt or suffers any other analogous event, or (iii) upon 90 days written notice to the other Party.
(ii) Suspension Right. Without limiting the foregoing termination rights, Company reserves the right to suspend access to the Software and the performance of any support services if any payment owing by Customer is more than ten (10) days overdue. Notwithstanding such suspension, Customer will remain obligated to make all subsequent payments to Company in accordance with the Order Form and this Agreement.
(iii) Effect of Termination. Upon expiration or earlier termination of this Agreement, the license granted by Company hereunder will also terminate and Customer shall cease using and delete, destroy, or return all copies of the Software and Documentation. Upon any termination for Customer’s material breach, Customer will pay any unpaid fees covering the remainder of the Term including any fees due and/or payable after the effective date of termination until the end of the then current Term. In no event will any termination relieve Customer of the obligation to pay any fees payable to Company for the period prior to the effective date of termination. The following provisions will survive the expiration or termination of these Agreement for any reason: Sections 2(b), 2(c), 2(e), and 5 through 12.
12. Miscellaneous.
(a) Entire Agreement. This Agreement supersedes all other communications, negotiations and prior oral or written statements regarding the subject matter of these terms and conditions. This Agreement may not be altered except by a written instrument signed by authorized legal representatives of both Parties. Any waiver of the provisions of this Agreement or of a Party’s rights or remedies under this Agreement must be in writing to be effective. In the event of a conflict between any Order Form and the Agreement, the Order Form will control, but only to the extent there is a conflict.
(b) Resellers. If you obtained the Software through a Reseller, your purchase relationship is with the Reseller, and Company is not responsible for the Reseller’s acts, omissions, statements, or other obligations.
(c) Notices. Customer is responsible for updating its contact information with Company, including providing Company with an up-to-date e-mail address for the provision of notice under the Agreement. In the event that the latest e-mail address provided to Company by Customer is not valid, or for any reason is not capable of delivering any notice required by the Agreement, Customer acknowledges and agrees that Company’s dispatch of an e-mail to such address will nonetheless constitute effective notice. Any notice provided to Company pursuant to the Agreement should be sent to the contact listed in the applicable Order Form.
(d) Force Majeure. Neither Party will be liable or deemed to be in default for any delay or failure in performance under this Agreement (except for payment obligations) resulting, directly or indirectly, from acts of God, civil or military authority, acts of the public enemy, war, riots, civil disturbances, insurrections, accidents, fire, explosions, earthquakes, floods, the elements, pandemics, epidemics, strikes, labor disputes or any causes beyond its reasonable control; provided, that the Party failing to perform in any such event will promptly resume or remedy, as the case may be, the performance of its obligations hereunder as soon as practicable.
(e) Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(f) Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
(g) Governing Law; Jurisdiction. This Agreement shall be governed by the laws of the State of Delaware, without regard to any conflicts of laws principles. The parties agree that the United Nations Convention for the International Sale of Goods does not apply to this Agreement. All disputes arising out of or relating to this Agreement will be submitted to the exclusive jurisdiction of the state or federal courts of competent jurisdiction located in Washoe County, Nevada, and each Party irrevocably consents to such personal jurisdiction and waives all objections to this venue. THE PARTIES HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM
BROUGHT BY EITHER OF THEM AGAINST THE OTHER ON ANY MATTERS WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT.
(h) Assignment. Customer may not assign this Agreement, directly or indirectly, by operation of law, change of control or otherwise, without the prior written consent Company. Company may freely assign this Agreement. Any purported assignment in violation of this section shall be null and void from the beginning. Subject to the foregoing, this Agreement will bind and inure to the benefit of any successors and permitted assigns.
(i) Export Regulation. The Software may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US.
(j) Injunctive Relief. Customer acknowledges that any breach or threatened breach of this Agreement would cause irreparable injury to Company and that monetary damages in such event would be inadequate compensation. Customer agrees that Company will be entitled in addition to monetary relief as may be recoverable by law, to seek temporary, preliminary, and/or permanent injunctive relief as may be necessary to restrain Customer from further breach, without posting bond.
