End User License Agreement (“EULA”) For FireScope Software Products
READ CAREFULLY: This EULA is between Client and FireScope, Inc. or the FireScope, Inc. subsidiary specified in Client Order (“FSI”). FireScope Inc. is a Delaware corporation with its principal place of business at 412 Olive Ave., Suite 603, Huntington Beach, CA 92648. This EULA is part of a package that includes software products downloaded or delivered on one or more virtual or physical appliance machines or devices. This EULA covers Client’s permitted download, installation and use of the software and any hardware or device and FSI’s provision of any related services.
1. DEFINITIONS. As used in this EULA, the following apply:
“Affiliate(s)” means an entity or legal person that directly or indirectly controls Client or is controlled by or under common control with Client.
“Ancillary Program(s)” means the third-party software programs (e.g., MySQL, Apache) that are provided to Client at no charge for use with the FireScope Software which programs are further described in FireScope’s Documentation.
“Appliance” means the Software packaged to run as a virtual machine (including in cloud computing environments) or on a single piece of physical hardware with one or more CPUs.
“Authorized Use Limitation” means the maximum use permitted as specified in the Order.
“Client” means any legal person (e.g., individual, company, entity or organization including a government, agency or political subdivision thereof) any Affiliates and any of Client’s employees, contractors or representatives that Client authorizes to use the Software as permitted herein.
“Configuration Item (CI)” means each network addressable infrastructure asset that falls within the scope of monitoring or discovery of FireScope solutions, including but not limited to (i) a physical device such as a computer, workstation, console, server, or any other electronic device; or (ii) a virtual machine, such as an operating environment that may be running concurrently with another operating environment on a single physical device. A more detailed definition of a CI is found at firescope.com/eula/ci-definition/.
“Documentation” means the current on-line help, guides, and manuals published by FireScope and made generally available by FireScope for the Software in hard copy or machine-readable form supplied by FSI to Client that describes the functionality of the Appliance and/or the Software licensed hereunder.
“FireScope Software” means any FSI proprietary software products provided by FSI and any Updates excluding any Ancillary Programs.
“FSI Materials” shall mean any enhancements and improvements to the FireScope Software and any tangible or intangible materials provided to Client by FSI or through its contractors in the course of performing Services other than Maintenance Services under this EULA.
“Maintenance Services” shall mean the services provided in accordance with FireScope’s then- current FireScope Software Maintenance and Support Services Policy (“M&S Policy”) found at firescope.com/eula/ms/; provided however, that FireScope’s right to modify its M&S Policy is subject to ninety (90) days advance written notice to Client and any modifications cannot materially decrease the level of support provided to Client on an overall basis.
“Hardware” means any physical appliance or other hardware referenced in an Order. “Order” means the invoice, order form or applicable purchase agreement.
“SaaS Hosting Services” shall mean the services provided in accordance with FireScope’s SaaS Hosting Services terms found at firescope.com/eula/SaaSHostingTerms.
“Services” shall mean all services provided by FSI under this EULA, including Maintenance and Support Services.
“Software” means collectively the FireScope Software and any FSI Materials and Ancillary Programs. “Suppliers” means third parties who have supplied FSI with software or materials that FSI has incorporated into the Software.
“Updates” means bug fixes, patches, maintenance releases, enhancements, and improvements that may be provided by FSI from time to time under the M&S Policy.
2. CLIENT PAYMENT OBLIGATIONS. Client agrees to pay all undisputed amounts due as are specified in a correctly rendered invoice. Client is responsible for paying any applicable shipping charges and any applicable taxes, duties, levies, or regulatory fees FSI is required to pay or charge Client. Unless otherwise indicated in an Order, all invoices are payable thirty (30) days from the date of invoice and FireScope shall be reimbursed for reasonable and necessary travel and living expenses incurred in connection with delivering Training Services, Technical Account Manager Services or Professional Services at a Client’s site in accordance with Client’s travel, lodging and meal standards.
3. TITLE AND RISK OF LOSS. Title and risk of loss to any Hardware or any other physical materials purchased is transferred to Client when the Hardware or other physical materials are delivered to FSI’s designated carrier for shipment. Nothing in this Section shall be deemed to transfer title to, or provide Client with any rights in, the Software or Documentation, except as specifically provided in this EULA.
4. LICENSE GRANT. FSI hereby grants to Client a worldwide, non-exclusive, non-transferable license to use the Software and any Hardware provided for the term and up to the number of CIs or other units of measure specified in the applicable Order for Client’s internal IT or other business operations subject to the following terms:
a) For each Software license key Client is delivered, Client may use the Software up to the Authorized Use Limitation; and copy the Software for back-up and archival purposes, provided any copy must contain all of the original Software’s proprietary notices.
b) Client agrees that Client will only install a Software license key obtained directly from FSI or its authorized reseller.
c) Any Software pre-installed on any Hardware may only be used by Client with such Hardware with the exception of agents that run on remote servers meant to inter-operate with the Software in accordance with the Documentation.
d) Client may not commercially redistribute, bundle, or package any Software downloaded or obtained from FSI without the prior written consent of FSI.
e) Client may not use any Software downloaded or obtained from FSI in the production of a commercial computer software or hardware product without the prior written consent of FSI.
f) Client may not copy the Software onto any public or distributed network that allows access or use of the Software by the public or third parties. FireScope Software may be delivered to Client pre- installed on Hardware or on a recorded or fixed media or may be made available to Client via download from a web site designated by FSI. Client shall own the magnetic or other physical media upon which the FireScope Software is originally or subsequently recorded or fixed but FSI or its Suppliers shall retain all title, copyright and other intellectual proprietary rights in, and ownership of, the Software regardless of the media upon which the original or any copy may be recorded or fixed. Any rights in Software not granted herein are expressly reserved by FSI or its Suppliers.
5. ANCILLARY PROGRAMS. FireScope represents and warrants that it has the full right and license to distribute the Ancillary Programs packaged with the FireScope Software. Client may run one copy of each Ancillary Program for each Appliance for use solely in conjunction with and as integrated with the FireScope Software for the purposes of installing or operating the Software. Client may not run or use the Ancillary Programs on a stand-alone basis. If any special warranty or other license terms apply to an Ancillary Program (“Ancillary Program License”), such terms will be set forth in the Documentation and Client acknowledges that this EULA does not in any way supplement or detract from the Ancillary Program License. Any open source Ancillary Programs will be identified in the Documentation and will be accompanied by any required code, license terms and conditions for use, copying, distributing and modifying and/or written offer to provide any required corresponding code.
6. NO REVERSE ENGINEERING, OTHER RESTRICTIONS. Except to the extent allowed under the applicable law or any Ancillary Program License, Client shall not directly or indirectly: (i) modify, translate, reverse engineer (except to the limited extent permitted by law), decompile, disassemble, create derivative works based on, sublicense, or distribute any of the Software; (ii) rent or lease any rights in any of the Software in any form to any person; or (iii) use any Software for the benefit of any third parties (e.g., in an ASP, outsourcing or service bureau relationship).
7. CONFIDENTIALITY. As used herein, “Confidential Information” means any non-public technical or business information of either party, including without limitation, any information, relating to techniques, algorithms, software, know-how, current and future products and services, research, engineering, designs, financial information, procurement requirements, manufacturing, customer lists, business forecasts, marketing plans and information, and any other information which is of a confidential nature that is disclosed to the other party during the term of this EULA. Each party will take all reasonable measures to maintain the confidentiality of the other party’s Confidential Information. Each party will limit the disclosure of the Confidential Information of the other party to its employees and representatives with a bona fide need to access such Confidential Information. If Client Confidential Information is incorporated by Client, FSI or a third party into Client’s particular configuration of the Software, Client shall retain all ownership or intellectual property rights that Client may have in and to such Confidential Information.
8.1 SOFTWARE AND HARDWARE WARRANTY. FSI warrants that, for a period of one (1) year from the date the Software is first made available to Client for download or delivered on a fixed media (the “Software Warranty Period”), the unmodified Software originally ordered by Client will substantially perform in all material respects according to the functions described in its Documentation when operated in accordance with the Documentation. FSI warrants that for a period of one (1) year from delivery (the “Hardware Warranty Period”) the unmodified hardware portions of the Hardware will, under normal use, conform in all material respects to product specifications current when the Hardware is shipped and be free of material defects in materials and workmanship. FSI’s sole obligation and liability, and Client’s sole and exclusive remedy shall be for FSI to use commercially reasonable efforts to remedy the problem, or to replace the defective product, provided that FSI is notified in writing of all warranty problems during the applicable warranty period. If FSI is unable to make the affected Software or hardware operate as warranted within a reasonable time considering the severity of the error and its impact on Client, Client will be entitled to recover all applicable license fees paid by Client.
8.2 SERVICES WARRANTY. FSI warrants for ninety (90) days from the performance of any Services by FSI hereunder that such Services will be performed (i) in a professional and workmanlike manner and (ii) substantially in accordance with the relevant Statement of Work or the agreed-upon agreement applicable to such Services, as applicable. Notwithstanding the foregoing, FSI Materials are distributed “AS IS.” Client must report in writing any breach of the Services Warranty to FSI during the warranty period. Client’s sole and exclusive remedy and FSI’s entire liability for such a breach shall be the re-performance of the Services; provided, however, that if FSI is unable to perform the non-conforming Services as warranted, then Client shall be entitled to recover the fees paid to FSI for such nonconforming Services.
8.3 MEDIA AND ANTI-VIRUS WARRANTY. FSI warrants for ninety (90) days from the date of receipt that the media upon which FSI delivers the Software will be free of defects in materials and workmanship under normal use. FSI further warrants that to the best of its knowledge after employing reasonable technical means to detect computer viruses, the Software as provided by FSI does not contain any virus or computer software code, routines or devices designed to disable, damage, impair, or erase the Software or other programs or data. If this warranty is breached, Client’s sole and exclusive remedy and FSI’s sole liability shall be to replace the media.
8.4 INTELLECTUAL PROPERTY WARRANTY. FSI warrants that (i) all intellectual property rights in the FireScope Software belong to it and (ii) it has full right and license to distribute the Ancillary Programs delivered with the FireScope Software (iii) it has the right to enter into this EULA and to grant Client a license to use the Software as contemplated by this EULA.
8.5 DISCLAIMER. EXCEPT AS EXPRESSLY WARRANTED IN THIS SECTION OF THIS AGREEMENT, THE SOFTWARE, DOCUMENTATION OR SERVICES PROVIDED BY FSI ARE PROVIDED “AS IS” AND “WITH ALL FAULTS,” AND FSI EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY. FSI does not warrant that the Software or any other information or materials provided under this EULA will meet Client’s requirements or that the operation thereof will be uninterrupted or error-free, or that all errors will be corrected.
9. LIMITATION OF LIABILITY. IN NO EVENT WILL FSI’S AGGREGATE LIABILITY ARISING FROM OR RELATED TO THIS EULA, OR THE USE OF THE SOFTWARE, EXCEED THE AMOUNT OF FEES CLIENT PAID TO FSI FOR THE SOFTWARE THAT GIVES RISE TO SUCH LIABILITY. UNLESS OTHERWISE EXPRESSLY STATED HEREUNDER, UNDER NO CIRCUMSTANCES SHALL FSI OR ANY OF ITS SUPPLIERS BE LIABLE FOR ANY OF THE FOLLOWING: LOSS OR DAMAGE TO ANY SYSTEMS, RECORDS OR DATA; OR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR COVER DAMAGES (INCLUDING LOST PROFITS), IN EACH CASE EVEN IF FSI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. INTELLECTUAL PROPERTY INFRINGEMENT. If a third party makes a claim against Client that the FireScope Software or FSI Materials infringe any patent, copyright, trade secret, trademark or other intellectual property rights (“IP Claim”); FSI will defend, indemnify and hold Client harmless against the IP Claim and pay all costs, damages, and expenses (including reasonable legal fees) incurred by or awarded against Client arising out of or in connection with any such IP Claim; provided that: (i) Client notify FSI as soon as reasonably practicable in writing of a potential claim of which Client have notice; (ii) FSI shall at its own expense assume sole control of the defense of such claim and all related settlement negotiations; and (iii) Client provide FSI, at FSI’s reasonable request and expense, with reasonable assistance, information, and authority necessary to perform FSI’s obligations under this Section. Notwithstanding the foregoing, FSI shall have no liability for any claim of infringement based on (a) the use of a superseded release of FireScope Software or superseded version of FSI Materials if the infringement would have been avoided by the use of a current release of the FireScope Software or FSI Materials which FSI provided to Client, (b) the unauthorized modification of FireScope Software or FSI Material by anyone other than FSI, its subsidiaries or agents, or (c) the use of the FireScope Software or FSI Materials other than in accordance with the Documentation and this EULA. If, due to an IP Claim or the threat of an IP Claim, (i) the FireScope Software or FSI Materials are held, or in FSI’s reasonable judgment may be held to infringe, or (ii) Client is enjoined from using the FireScope Software or FSI Materials, or in FSI’s reasonable judgment Client may receive such an order, FSI shall at its expense, (a) replace or modify the affected FireScope Software or FSI Materials to be non- infringing; (b) obtain for Client a license on comparable terms as those reflected in this EULA to continue using the affected FireScope Software or FSI Materials; or (c) if FSI cannot reasonably obtain the remedies in (a) or (b), terminate the license for the infringing FireScope Software or FSI Materials and refund all license fees paid by Client under this EULA for the FireScope Software or FSI Materials upon return by Client. This Section states FSI’s entire liability and Client’s exclusive remedy for any claim of infringement.
11. TERM AND TERMINATION
11.1 Term. The term of the software license shall be specified in the Order. In the event the parties agree to a perpetual license or a subscription license, the term of the license under this EULA shall commence on the applicable delivery date of the Software and shall remain in effect for the specified term unless terminated as provided in this Section. For the avoidance of doubt, if the parties agree to a 3-year subscription term in an Order, the subscription term shall commence on the applicable delivery date of the Software and shall remain in effect for 36 months from commencement of the license in accordance unless is terminated as provided in this Section.
11.2 Termination by Client for Material Breach. Client may terminate this EULA, or the licenses granted hereunder or Maintenance Services on written notice if FSI materially breaches this EULA and fails to cure such breach within sixty (60) days following receipt of written notice specifying the breach in detail. Notwithstanding the foregoing, in the event Client terminates this EULA pursuant to this Section as a result of a material breach by FSI of this EULA, the licenses purchased under this EULA shall continue beyond such termination for the term specified in the Order; provided, however, that (i) Client has satisfied Client payment and other obligations in full under this EULA; and (ii) such use shall be on an “AS IS” basis, without warranties or Maintenance Services of any kind. For the avoidance of doubt, in the event of a material uncured breach by FSI of its obligations under its M&S Policy, Client shall be entitled to a pro rata refund of the prepaid fees for Maintenance Services.
11.3 Effect of Termination. Termination of this EULA or the licenses granted here under shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Client of Client’s obligation to pay all fees that have accrued or are otherwise owed by Client. In event of a termination of this EULA, Client must return any Hardware and confirm that Client has destroyed all copies of the Software.
12. LEGAL COMPLIANCE. Each party shall be responsible for, and agrees to comply with, all applicable laws, statutes, ordinances, and regulations.
13. GOVERNING LAW. This EULA shall be governed in all respects by the laws of as provided below without regard to choose-of-law rules or principles. Any dispute that may arise in connection with the interpretation or implementation of this EULA shall be submitted to a court of competent jurisdiction located as provided below. Client expressly agrees with FSI that this EULA shall not be governed by the U.N. Convention on Contracts for the International Sale of Goods.
Location of Client Contracting Entity Governing Law Jurisdiction
North America California California
Europe, Middle East and Africa United Kingdom London
Asia Pacific and Japan NSW Australia Sydney
China Hong Kong Hong Kong
14. NOTICES. Any notices shall be personally delivered or sent by certified or registered mail, return receipt requested, or by overnight express courier, to the address specified herein or such other address as the party may specify in writing. Such notices will be effective upon receipt, which may be shown by confirmation of delivery.
15. DATA RIGHTS. FSI may collect and track information about Client including but not limited to Client’s IP address, the type of hardware Client uses and the type of browser Client employs. FSI reserves the right to use and analyze such information within the scope of FSI’s internal activities. FSI may use such data for the purposes of responding to Client requests for information and for contacting Client. FSI may identify Client organization’s usage of the Software including using Client organization’s name and logo
16. ASSIGNMENT. Client may not assign or otherwise transfer this EULA without FSI’s prior written consent. Notwithstanding the foregoing, either party may assign this EULA without the consent of the other party if a majority of its outstanding share ownership is sold to a third party, or if it sells all or substantially all of its assets or if there is otherwise a change of control. This EULA shall be binding upon and inure to the benefit of the parties’ successors and permitted assigns.
17. GENERAL. This EULA is the parties’ complete agreement regarding its subject matter, superseding any prior oral or written communications. Under no circumstances will the terms of any purchase order issued by Client control or otherwise negate the terms set forth in this EULA. Amendments or changes to this EULA must be in mutually executed writings to be effective. The exchange of a fully executed Order (in counterparts or otherwise) by fax or email in a PDF format shall be sufficient to bind the parties to the terms and conditions of such agreement. If any provision of this EULA is held to be unenforceable, that shall not affect the enforceability of the remaining provisions. The parties are independent contractors for all purposes under this EULA