License Terms

LICENSE TERMS

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THE FOLLOWING TERMS GOVERN YOUR USE OF ALL SOFTWARE AND RELATED SERVICES PROVIDED BY OR FOR VIGILENT CORPORATION (“VIGILENT”) UNLESS SUPERSEDED BY A SEPARATE SIGNED WRITTEN AGREEMENT WITH VIGILENT.  BY DOWNLOADING OR USING THE SOFTWARE YOU OFFER TO AGREE TO THESE TERMS.  IF YOU DISAGREE WITH THESE TERMS, YOU MUST PROMPTLY DESTROY ALL COPIES AND STOP USE.  BY ALLOWING ACCESS OR USE OF THE SOFTWARE, VIGILENT ACCEPTS THIS OFFER.  YOU ARE CALLED “CUSTOMER” BELOW. 

 

Grant.  ALL SOFTWARE IS LICENSED NOT SOLD.  Subject to these terms and conditions and payment of the applicable fees, VIGILENT grants to Customer a nonexclusive and nontransferable license to use the Software referred to in VIGILENT’s approved order documentation, (either printed or electronic, the “Order Form”), including related end user documentation, in object code form only; subject to the following limitations:

(i) Customer will use the Software only with the equipment and system and at the location specified on the Order Form;

(ii) Customer will not transfer, assign, sublicense or distribute the Software or these rights to any other person; any attempts to do so are void;

(iii) Customer will not modify the Software or create derivative works based upon the Software, nor permit or encourage others to do so; and

(iv) Customer will not benchmark, decompile, decrypt, reverse engineer, disassemble or otherwise reduce the Software to human-readable form, nor permit or encourage others to do so, except as mandated by applicable law after notice to VIGILENT.

 

Title to the Software will remain solely with VIGILENT or its suppliers.  The term of the license will be fully paid up or any other time period specified on the Order Form.  Licenses issued for a specific time period and support and maintenance services will be renewed on these same conditions upon invoicing by VIGILENT or its authorized resellers and Customer’s timely payment.  In the event that Customer licenses or uses more services than are permitted by the Order Form(s), Customer agrees to pay for such additional licenses or services upon invoicing at the then applicable rates. CUSTOMER AGREES THAT THE SOFTWARE AND SERVICES MUST NOT BE RELIED UPON FOR THE TRANSMISSION OF DATA RELATING TO EMERGENCY OR LIFE THREATENING SITUATIONS OR WHERE FAILURE COULD LEAD TO DEATH, BODILY HARM, OR ENVIRONMENTAL DAMAGE.  Customer can elect to terminate this license by destroying all copies of the Software and related documentation.  VIGILENT can elect to terminate this license early only if Customer materially breaches the terms of this license (including related payment and non transfer obligations) and fails to correct the breach after reasonable notice not exceeding ninety days.  Customer will ensure that its personnel complies with these terms.

 

Supplements and Copies.  Software includes any upgrades, updates, bug fixes or modified versions (collectively, “Supplements”), related documentation and backup copies of the Software licensed or provided to Customer by VIGILENT directly or indirectly pursuant to  any separate support and maintenance terms and for which Customer has paid applicable fees.  Customer may make a reasonable number of archival or backup copies of the Software.  Upon termination Customer shall return or destroy all copies of the Software and certify same to VIGILENT upon request. 

 

Limited Warranty.  VIGILENT warrants that during the Warranty Period the Software will substantially conform to the specifications set forth in VIGILENT’s relevant user documentation. The “Warranty Period” begins on the date VIGILENT makes the Software available for electronic download by Customer or otherwise installs the Software per the Order Form and ends ninety days later.  This limited warranty extends only to Customer as the original licensee.  Customer's sole and exclusive remedy and the entire liability of VIGILENT and its suppliers under this limited warranty will be, at VIGILENT's option, repair or replacement of the Software (pursuant to Vigilent’s stanard support and maintencance terms) or refund of the applicable fees paid, if the problem is reported to VIGILENT or its designee during the Warranty Period. This warranty does not apply if the Software: (a) is licensed for beta, evaluation, testing or demonstration purposes; (b) has been altered, except by VIGILENT; (c) has not been installed, operated, repaired, or maintained in accordance with the relevant documentation (without fault of VIGILENT); or (d) has been used in conjunction with Customer or third party software, accessories, products, services or ancillary or peripheral equipment and the problem is the result of such use and not of the Software itself.  Except as expressly granted in this Agreement, the Software and all related services are provided AS IS without any implied warranty.  VIGILENT EXCLUDES ALL TERMS, CONDITIONS AND WARRANTIES IMPLIED INTO THIS LICENSE BY LAW, STATUTE OR OTHERWISE.  THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICIULAR PURPOSE, MERCHANTIBILITY AND NONINFRINGEMENT ARE EXPRESSLY DISCLAIMED.  TO THE EXTENT AN IMPLIED TERM, CONDITION OR WARRANTY CANNOT BE EXCLUDED OR DISCLAIMED, THEN IT IS LIMITED IN DURATION TO THE WARRANTY PERIOD.  VIGILENT does not warrant that the Software is error free or that Customer will be able to operate the Software without interruption. 

 

LIMITATION OF LIABILITY.   TO THE MAXIMUM EXTENT PERMITTED BY LAW AND ALWAYS SUBJECT TO (C) below: (A) VIGILENT, ITS RESELLERS AND ITS SUPPLIERS EXCLUDE AND DISCLAIM ANY LIABILITY TO CUSTOMER AND ANY USER FOR (i) ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND, AND (ii) ECONOMIC LOSS, WHICH SHALL INCLUDE LOSS OF PROFIT (WHETHER DIRECT OR INDIRECT), LOSS OF INCOME, DATA, REVENUE, BUSINESS INTERRUPTION OR COST OF SUBSTITUTE SOFTWARE OR SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE; (B) VIGILENT’s, ITS RESELLERS’ AND ITS SUPPLIERS’ aggregate liability to Customer and any USER in connection with this Agreement OR CUSTOMER’S ACCESS TO AND USE OF THE SOFTWARE WILL NOT exceed the total fees paid by Customer TO VIGILENT IN THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM OR ACTION AROSE; (C) NEITHER VIGILENT, ITS RESELERS NOR ITS SUPPLIERS EXCLUDE OR LIMIT THEIR LIABILITY IN RESPECT OF BODILY INJURY OR WRONGFUL DEATH ARISING FROM THEIR NEGLIGENCE, FRAUDULENT MISREPRESENTATION OR SUCH OTHER MISCONDUCT THAT CANNOT BE EXCLUDED BY APPLICABLE LAW.   despite any other provision of this agreement, TO THE MAXIMUM EXTENT PERMITTED BY LAW VIGILENT, ITS RESELLERS AND ITS SUPPLIERS SHALL HAVE NO LIABILTY DURING ANY evaluation, DEMONSTRATION, beta OR testing PERIOD, or with respect to BANDWIDTH DELIVERY OR THIRD PARTY HARDWARE, SOFTWARE AND SERVICES NOT PROVIDED BY VIGILENT. TO THE MAXIMUM EXTENT PERMITTED BY LAW, VIGILENT, ON BEHALF OF ITSELF, ITS RESELLERS AND ITS SUPPLIERS, DISCLAIMS ANY AND ALL LIABILITY FOR EVENTS OR DAMAGES OF ANY NATURE OR KIND RESULTING FROM MISUSE OF THE SOFTWARE.  NO RESELLER CAN ENLARGE VIGILENT’S OBLIGATIONS UNDER THIS AGREEMENT NOR RESTRICT THESE LIMITATIONS OF LIABILITY. THE FOREGOING LIMITATIONS ARE REASONABLE IN LIGHT OF THE COST OF ALTERNATIVES.

 

Export, Restricted Rights.  The Software, including technical data, may be subject to U.S. export control laws, including the U.S. Export Administration Act and related regulations, and may be subject to export or import regulations in other countries. Customer agrees to comply with all such regulations and acknowledges that it has the responsibility to obtain licenses to export, re-export, or import Software outside the USA.  The Software is provided with “Restricted Rights”. Use, duplication, or disclosure by the U.S. Government or any agency or instrumentality thereof is subject to restrictions as set forth in this Agreement and as provided in DFARs 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (OCT 1988), FAR 12.212(a) (1995), FAR 52.227-19, or FAR 52.227-14 (ALT III), as applicable. Vigilent Corporation 2001 Broadway, Oakland, CA 94612.

 

Privacy. Use of the Software by Customer and support by VIGILENT does NOT requires any access to any Customer personally identifiable information and any exchange of such information is discouraged.  By submitting any personally identifiable information to VIGILENT or its designees (e.g., point of contact information)in connection with the use of the Software or its maintenance and support, Customer (i) consents to the collection, processing, transmission and disclosure of such information and related data by VIGILENT within its group of companies, service providers and authorized  resellers pursuant to this Agreement both within and outside the USA to the extent necessary for VIGILENT to perform its obligations and exercise its related rights and (ii) confirms its authority to do so (as the data controller). VIGILENT will not disclose such information without Customer’s prior written approval except (i) to VIGILENT’S personnel with a need to know the information; (ii) to affiliates, suppliers, subcontractors, vendors, and agents of VIGILENT who help VIGILENT perform its obligations (provided that they are contractually obligated to protect such information in the same manner); or (iii) as required by law. Without limiting the foregoing, VIGILENT will comply with applicable law with respect to any personally identifiable information provided by Customer (as a data processor).  Subject to the foregoing, VIGILENT can elect to provide users with appropriate self-help and best usage tips for the Software and services by email, unless Customer or the users direct VIGILENT not to do so.  VIGILENT will ensure that its personnel abides by these terms.

 

Protection of Information and Notices.  Customer agrees to maintain and reproduce all copyright and other proprietary notices on all copies of the Software.  Customer agrees that aspects of the Software, including the specific design and structure of individual programs and issues arising in connection with the support and maintenance terms, constitute trade secrets and/or copyrighted material of VIGILENT.  Customer shall not disclose, provide, or otherwise make available such trade secrets or copyrighted material in any form to any third party without the prior written consent of VIGILENT and shall implement reasonable security measures to protect such trade secrets and material.  The source code for portions of the Software may be available under a public license (the “Public License Files”). The Software documentation describes how Customer may obtain the Public License Files.  Any terms offered in this Agreement that apply to the Public License Files are offered solely by VIGILENT and not by the licensors of the Public License Files, and this Agreement is not intended to alter these licensors’ rights.  VIGILENT can use (i) Customer information to perform its obligations under this Agreement and (ii) anonymized, aggregated or abstracted Customer information obtained in connection with this Agreement for any other lawful purpose; each without further notice, attribution or compensation, provided that the foregoing use rights do not create any implied patent license. 

 

Support and Maintenance.  VIGILENT (directly or through authorized providers) will provide Customer with the same level of basic support and maintenance service that VIGILENT then provides to its other direct basic support and maintenance customers (also referred to as “Essential Support”) for the time period specified on the Order Form subject to payment of applicable fees.  The Order Form may also specify optional or extended levels of support. 

 

Miscellaneous.  Unless otherwise agreed in writing by VIGILENT, California USA law (excluding its choice of law provisions, the United Nations convention on contracts for the international sale of GOODs and the Uniform Computer Information Transaction Act and any adaptation of this act) govern this Agreement and any dispute related to it will be resolved in any court with jurisdiction located in the San Francisco Bay Area of California USA.  VIGILENT can elect equitable relief to specifically enforce provisions of this license or to enjoin specific violations given the likely inadequacy of damages. The prevailing party in any legal action related to this Agreement is entitled to recover its reasonable attorneys’ and experts’ charges.  Late payments bear interest at the rate of one percent per month or any lower legal maximum.  All invoices are due net thirty (30) days from the date of invoice and are payable in US dollars unless otherwise specified in the Order Form. Any taxes due related to the transaction (other than taxes on VIGILENT’s net income) are payable by Customer.  VIGILENT can elect to invoice electronically and may specify the form or manner of payment.  When Customer utilizes an authorized reseller, (i) Customer will separately document its financial terms with the authorized reseller, e.g., price and payment terms; (ii) the authorized reseller will contract with VIGILENT through use of the Order Form for resale and VIGILENT will look to the reseller for payment, but can elect to terminate applicable licenses/services in the event of nonpayment by any reseller that has been designated by Customer; and (iii) all other terms (e.g., use, support, etc.) will be governed by this Agreement, if VIGILENT accepts the order. This is the complete agreement of VIGILENT and Customer with respect to the Software and related services and its provisions may only be waived or modified in writing.  This license is written and will be construed in standard American English, even if translated into other languages or used in places relying on other languages.  C'est la volonté expresse des parties que la présente convention ainsi que les documents qui s'y rattachent soient rédigés en anglais american. The parties recognize that this license is intended for use in multiple jurisdictions.  Any ambiguities will be clarified in an equitable manner without regard to authorship and minor errors and misspelling will be corrected to give maximal effect to obvious intent. There are no intended third party beneficiaries of this Agreement.  At VIGILENT’s request, Customer will sign and return a copy of this Agreement.

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Rev. 20210101