USE OF THIS SOFTWARE AND SERVICE IS SUBJECT TO LICENSE RESTRICTIONS. CAREFULLY READ THIS AGREEMENT BEFORE USING THE SOFTWARE OR SERVICE. USE OF THE SOFTWARE OR SERVICE INDICATES COMPLETE AND UNCONDITIONAL ACCEPTANCE OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT.
END-USER LICENSE AGREEMENT ("Agreement")
This is a legal agreement concerning the use of the PureCloud Software and Service between the entity acquiring the license (“Customer”), and Tripwire, Inc. (“Tripwire”). If you are using the Software as an employee, the legal entity that employs you is the “Customer.” Your employer may have already accepted a version of the terms and conditions in this Agreement by signing a license agreement. In all other circumstances, you are binding your employer and yourself personally as an employee, to this Agreement by using the Software or Service. Unless a license agreement has been signed by Customer and an authorized representative of Tripwire, this Agreement and the applicable quotation contain the parties' entire understanding relating to the subject matter and supersede all prior or contemporaneous agreements. IF YOU DO NOT, OR THE CUSTOMER DOES NOT, AGREE TO THESE TERMS AND CONDITIONS, IMMEDIATELY STOP USING THE SOFTWARE AND SERVICE, AND DESTROY AND CERTIFY DESTRUCTION OF THE SOFTWARE AND ALL ACCOMPANYING ITEMS, AND RECEIVE A FULL REFUND OF ANY LICENSE FEE PAID.
1. ORDERS, FEES AND PAYMENT.
1.1 To the extent Customer (or upon agreement by Tripwire, Customer’s appointed third party buying agent) requests and Tripwire accepts an order for PureCloud, each such order will constitute a contract between Customer and Tripwire, which shall be governed solely and exclusively by the terms and conditions of this Agreement, any applicable addenda and the applicable quotation (collectively the “Order”), whether or not these documents are referenced in the Customer’s order. Any additional or conflicting terms and conditions appearing in the Customer’s order will not be effective unless agreed in writing by both parties’ authorized representatives.
1.2 All license fees are non-refundable, except as expressly provided in this Agreement. Any past due invoices will be subject to interest charges in the amount of one and one-half percent per month or the applicable legal rate currently in effect, whichever is lower. Prices do not include freight, insurance, customs duties, taxes or other similar charges, which Tripwire will invoice separately. Unless provided with a certificate of exemption, Tripwire will invoice Customer for all applicable taxes. Notwithstanding anything to the contrary, if Customer appoints a third party buying agent to place purchase orders and/or make payments on Customer’s behalf, Customer shall be liable for payment under such orders in the event of default by the third party buying agent.
1.3 Any products delivered electronically shall be deemed delivered when made available to Customer for download, and any products delivered in tangible media are delivered FOB Origin. Tripwire’s delivery of Software by electronic means is subject to Customer’s provision of both a primary and an alternate e-mail address.
2. OWNERSHIP; GRANT OF LICENSE.
2.1 The PureCloud software (“Software”) downloaded or accessed by Customer through the PureCloud service (“Service”) under this Agreement, including any upgrades, updates, modifications, revisions, copies, and documentation is copyrighted, trade secret and confidential information of Tripwire or its licensors, who maintain exclusive title to all Software and Services and retain all rights not expressly granted by this Agreement. The Software is licensed and not sold.
2.2 Tripwire grants to Customer, during the subscription term and subject to Customer’s compliance with the terms and conditions of this Agreement including but not limited to payment of applicable license fees, a nontransferable, nonexclusive license to use Software and Service solely as specified in the Order for Customer’s internal business purposes to scan Internet Protocol addresses (“IPs”) owned by Customer. The Software and Services are licensed based on the number of users and number of IPs scanned for a limited subscription term. Customer shall not use the Software or Services in excess of the number of licensed users and IPs. The Service includes Tripwire’s then-current standard support as described at https://secure.tripwire.com/customers/_files/TW_Support_Guidelines.pdf during the subscription term. Customer may copy Software only as reasonably necessary to support the authorized use. Each copy must include all notices and legends embedded in Software and affixed to its medium and container as received from Tripwire. All copies shall remain the property of Tripwire or its licensors. Customer shall maintain a record of the number and primary location of all copies of Software, including copies merged with other software, and shall make those records available to Tripwire on request.
2.3 Customer shall not use Software or Service, or allow its use, for the purpose of developing, enhancing or marketing any product that is competitive with Software or Service, or disclose to any third party the results of or information pertaining to any benchmark. Except as otherwise permitted for purposes of interoperability as specified by applicable and mandatory local law, Customer shall not reverse-assemble, reverse-compile, reverse-engineer or in any way derive any source code from Software. If Customer wishes to exercise any rights to reverse-engineer to ensure interoperability in accordance with applicable law, Customer must first provide Tripwire with written notice and all reasonably requested information to TW-Contracts@tripwire.com within 30 days and permit Tripwire to assess the claim and, at Tripwire’s sole discretion, to make an offer to provide alternatives that reduce any adverse impact on Tripwire’s intellectual property or other rights.
2.4 Customer shall not use the Software or Service for any purpose other than as permitted hereunder. Customer may not loan, rent, lease, distribute, or otherwise transfer Software. Customer shall not make Software or Service available in any form to any person other than Customer’s employees and on-site contractors, whose job performance requires access and who are under obligations of confidentiality. Customer shall take appropriate action to protect the confidentiality of Software and ensure that any person permitted access does not disclose or use it except as permitted by this Agreement. Customer shall not use the Software or Service for the benefit of a third party. Customer shall give Tripwire written notice of any unauthorized disclosure or use of the Software or Service as soon as Customer learns or becomes aware of such unauthorized disclosure or use.
2.5 Customer shall not sublicense, assign or otherwise transfer Software, this Agreement or the rights under it, whether by operation of law or otherwise (“attempted transfer”), without Tripwire’s prior written consent. Any attempted transfer without Tripwire’s prior written consent shall be a material breach of this Agreement and may, at Tripwire’s option, result in the immediate termination of this Agreement and licenses granted under this Agreement. The terms of this Agreement, including without limitation the licensing and assignment provisions, shall be binding upon Customer’s permitted successors in interest and assigns.
2.6 All Software is commercial computer software within the meaning of the applicable acquisition regulations. Accordingly, pursuant to US FAR 48 CFR 12.212 and DFAR 48 CFR 227.7202, use, duplication and disclosure of the Software by or for the U.S. Government or a U.S. Government subcontractor is subject solely to the terms and conditions set forth in this Agreement, except for provisions which are contrary to applicable mandatory federal laws.
2.7 Customer agrees that Orders under this Agreement are not contingent on the delivery of any future functionality or features, and are not dependent on any oral or written comments made by Tripwire regarding future functionality or features. Customer may choose to, but is not required to, provide suggestions, data, or other information to Tripwire regarding possible improvements in the operation, functionality or use of Software, whether in the course of receiving services, evaluating Software or otherwise, and any inventions, product improvements, modifications or developments made by Tripwire, at its sole discretion, will be the exclusive property of Tripwire.
2.8 The Software contains software and copyrighted information of third parties. Third party software licenses are located in third party license directory, accessible through the Software and Service. If any third party license requires that Tripwire provide Customer with rights to use, copy or modify a software program that are broader than the rights granted in this Agreement, then such rights shall take precedence over the rights and conditions in this Agreement with regard to those components. Customer’s use of third party components in conjunction with the Software in accordance with this Agreement is permitted under all such licenses.
3. TRIPWIRE COLLECTION AND USE OF AGGREGATED DATA
The Software and Service automatically collects data about vulnerabilities found and the environment (operating system, applications and devices) scanned (“Collected Data”). Tripwire may use the Collected Data on an aggregated, anonymized basis only to analyze, publish and report on industry trends. Tripwire shall not disclose the Collected Data in any manner in which the Collected Data could be attributed to Customer or Customer’s use of the Software or Services.
4. CONFIDENTIAL INFORMATION
4.1 "Confidential Information" means: (a) code provided by Tripwire and Collected Data collected by Tripwire; (b) any authorization keys and passwords delivered in order to operate the Software or Service; (c) documentation, product road maps and development plans, and product pricing information; and (d) any other business, technical or training information of a party that, if disclosed in writing, is marked "confidential" or "proprietary" at the time of disclosure, or, if disclosed orally, is identified as "confidential" or "proprietary" at the time of disclosure. Confidential Information does not include information that: (i) is or becomes generally known or available to the public through no act or omission of the recipient; (ii) is rightfully known to or received by the recipient prior to receiving such information from the disclosing party without restriction as to use or disclosure; or (iii) is independently developed by the recipient without use of Confidential Information and without a breach of this Agreement. The existence of this Agreement and the nature of the business relationship between the parties are not Confidential Information.
4.2 Neither party will use Confidential Information of the other party except as expressly permitted under the terms of this Agreement, or to evaluate opportunities to license additional Tripwire product offerings. The foregoing obligations will not restrict the recipient’s disclosure of Confidential Information pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the recipient gives the disclosing party reasonable notice to contest such order or requirement.
5. LIMITED WARRANTY
5.1 During the warranty period, Tripwire warrants that the Software and Service, when properly installed, will substantially conform to the functional specifications set forth in the applicable user manual. The warranty period is 90 days from the start of a subscription term. Customer must notify Tripwire in writing during the subscription term of any warranty claim. This warranty applies only to the initial subscription term and does not renew with any expansion of licensed use or subscription renewal. This warranty shall be voided if the Software has been subject to misuse, modification or improper installation. TRIPWIRE OFFERS NO WARRANTY THAT THE SOFTWARE WILL DETECT OR PROTECT AGAINST ALL THREATS OR BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES. TRIPWIRE’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY SHALL BE, AT TRIPWIRE’S OPTION, EITHER (A) MODIFICATION OR REPLACEMENT OF THE SOFTWARE OR SERVICE THAT DOES NOT MEET THIS LIMITED WARRANTY, OR (B) TERMINATION OF THE SUBSCRIPTION AND A REFUND OF THE UNAMORTIZED PORTION OF THE LICENSE FEES PAID TO TRIPWIRE. TRIPWIRE OFFERS NO WARRANTIES WITH RESPECT TO SOFTWARE OR SERVICES WHICH ARE OFFERED AT NO CHARGE.
5.2 THE WARRANTIES SET FORTH IN THIS SECTION 5 ARE EXCLUSIVE. NEITHER TRIPWIRE NOR ITS LICENSORS OFFER ANY OTHER WARRANTIES, TERMS OR CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO SOFTWARE, SERVICES OR OTHER MATERIAL PROVIDED UNDER THIS AGREEMENT. TRIPWIRE AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, TERMS, CONDITIONS, AND REPRESENTATIONS OF (A) MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON- INFRINGEMENT OF INTELLECTUAL PROPERTY, AND (B) THOSE ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE. No oral or written information or advice given by Tripwire or Tripwire’s authorized representatives shall create a warranty or other obligations on behalf of Tripwire.
6. CUSTOMER OBLIGATIONS
Customer shall assume sole responsibility for selecting the Software and Service to achieve its intended results, and for the installation of, use of, and results obtained from the Software and Service. Customer is solely responsible for compliance with all laws, rules and regulations applicable to Customer’s use of the Software and Service. Without limiting the foregoing, Customer shall comply with all applicable international and national laws that apply to the Software and Services, including, but not limited to, the U.S. Export Administration Regulations, economic sanctions regulations administered by the Office of Foreign Assets Control, as well as end-user, end-use, and destination restrictions issued by U.S. and other governments, which prohibit export or diversion of certain products, and information about the products to certain countries and certain persons.
7.1 Tripwire will defend or settle any action brought against Customer by paying all costs, damages and reasonable attorneys’ fees that are finally awarded against Customer to the extent those amounts are based upon a claim that the Software or Service directly infringes any copyright or misappropriates any trade secret or infringes any U.S. patent. Customer agrees that as conditions to Tripwire’s obligations under this Section 7, Customer must: (a) notify Tripwire promptly in writing of the action; (b) provide Tripwire all reasonable information and assistance to settle or defend the action; and (c) grant Tripwire sole authority and control of the defense or settlement of the action.
7.2 If a claim is made under Subsection 7.1, Tripwire may at its option and expense: (a) replace or modify Software or Service so that it becomes non-infringing; or (b) procure for Customer the right to continue using Software or Service; or (c) terminate the subscription and require the return of Software or, if obtained electronically, require a certification from Customer that the Software has been destroyed, and refund to Customer the license fee paid for the infringing Software or Service within the twelve month period immediately preceding the termination.
7.3 Tripwire has no liability to Customer if the claim is based upon: (a) the combination of Software or Service with any product not furnished by Tripwire; (b) the modification of Software other than by Tripwire or modifications made by Tripwire in conformance with Customer’s specifications; (c) the use of other than a current unaltered release of Software; (d) any Software or Service provided at no charge; (e) any Software provided by Tripwire’s licensors who do not provide such indemnification to Tripwire’s customers; or (f) Software or Service not used in accordance with this Agreement. Tripwire will not be responsible for any compromise made or expense incurred without its prior written consent.
7.4. THIS SECTION 7 SETS FORTH TRIPWIRE’S SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND. EXCEPT AS SET FORTH ABOVE, TRIPWIRE AND ITS LICENSORS DISCLAIM ALL IMPLIED OBLIGATIONS WITH RESPECT TO INTELLECTUAL PROPERTY INDEMNIFICATION.
8. LIMITATION OF LIABILITY
8.1 Tripwire’s liability shall not be limited or excluded in relation to: (a) death or personal injury caused by its negligence or intentional misconduct (or that of its employees or agents); or (b) fraudulent misrepresentation; or (c) any other liability that cannot under applicable law be limited or excluded.
8.2 SUBJECT TO SECTION 8.1, IN NO EVENT SHALL TRIPWIRE OR ITS LICENSORS BE LIABLE FOR: (A) LOSS OF PROFITS; (B) LOSS OF DATA; (C) LOSS OF REVENUE; (D) LOSS OF USE; OR (E) PUNITIVE, EXEMPLARY, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF TRIPWIRE OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.3 SUBJECT TO SECTION 8.1, IN NO EVENT SHALL TRIPWIRE’S OR ITS LICENSORS’ LIABILITY UNDER THIS AGREEMENT EXCEED IN AGGREGATE, AN AMOUNT EQUAL TO THE AMOUNT PAID OR PAYABLE BY CUSTOMER FOR THE SOFTWARE OR SERVICE GIVING RISE TO THE CLAIM. IN THE CASE WHERE NO AMOUNT WAS PAID, TRIPWIRE AND ITS LICENSORS’ DAMAGES SHALL BE CAPPED AT $1,000 USD.
8.4 Customer acknowledges that the fees reflect the allocation of risk set forth in this Agreement and that Tripwire would not enter into this Agreement without these limitations on its liability. Some jurisdictions do not allow the exclusion or limitation of liability for incidental or consequential damages, so the above limitation may not apply to the extent prohibited by such local laws.
9. TERM, RENEWAL AND TERMINATION
9.1 This Agreement remains effective until expiration or termination. This Agreement, and all access and licenses to the Software and Services, shall automatically terminate at the end of the subscription term unless Customer has placed an Order for a renewal of the subscription term prior to expiration. The unit price for the first renewal period, if purchased, will not increase by more than 5% over the unit price for the initial subscription term. If the subscription term is not renewed by the expiration date of the initial term, pricing is subject to renegotiation. Either party may terminate this Agreement upon 30 days written notice if the other party is in material breach and fails to cure such breach within the 30 day notice period.
9.2 On expiration or termination of this Agreement or any license granted hereunder, Customer shall ensure that all use of the affected Software ceases, and shall return it to Tripwire or, if Customer obtained the Software electronically, certify the destruction of all copies of the Software used by Customer to Tripwire’s reasonable satisfaction. The provisions of sections 3-11 shall survive any expiration or termination of this Agreement.
10. REVIEW OF LICENSE USAGE
On Tripwire's written request, Customer will furnish to Tripwire: (a) a certification signed by an officer indicating whether the Software is being used in accordance with this Agreement; and (b) a copy of any usage reports generated from the Software or Service, if applicable. With prior written notice, Tripwire may engage an independent auditor to review Customer’s Software usage and related records during Customer’s normal business hours to confirm compliance with this Agreement (a “Review”). Customer will provide the auditor with access to the relevant records and facilities for the Review. If the Review reveals Customer has underpaid fees to Tripwire, then Customer will promptly pay Tripwire for actual usage based on Tripwire's then-current list price. Tripwire will bear the expense of the Review unless a material non-compliance is revealed. Tripwire will treat all information disclosed during the Review as confidential information and will only use or disclose such information as required by law or to enforce its rights under this Agreement.
11. GENERAL TERMS
11.1 This Agreement shall be governed by and construed under the laws of the State of Oregon, USA, excluding choice of laws rules. Any action or proceeding arising from or relating to this Agreement, must be brought in a federal court in the District of Oregon or in state court in Multnomah County, Oregon, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding; however, this provision shall not restrict Tripwire’s right to bring an action against Customer or its subsidiary in the jurisdiction where Customer’s or its subsidiary’s place of business is located. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
11.2 If a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect. This Agreement may only be modified in writing by authorized representatives of the parties. All notices required or authorized under this Agreement must be in writing and shall be sent, as applicable, to Customer’s address provided at the time of registration or to Tripwire at: Tripwire, Inc., Attn.: Legal Department, P.O. Box 2727, Portland, OR 97208-2727 USA. Waiver of terms or excuse of breach must be in writing and shall not constitute subsequent consent, waiver or excuse.