Terms and Conditions (“Agreement”)

1. DEFINITIONS

“AlienVault USM” means the object code copy of the Alienvault USM software developed by AlienVault, including Updates thereof.

“Derivative Works” means a revision, enhancement, modification, translation, abridgment, condensation or expansion of Software or any other form in which such Software may be recast, transferred or adapted, which, if used without the consent of AlienVault, would constitute a copyright infringement.

“Documentation” means the user manuals and any other materials in any form or medium made generally available by AlienVault or its Partners to the users of the Software, regarding the proper installation and use of the Software.

“Partners” means distributors and resellers authorized by AlienVault or its distributors to re-sell the Software, or an AlienVault authorized co-branded version of the Software.

“Software” means the AlienVault USM or any other AlienVault software product, the Documentation, and all third-party software that AlienVault may have purchased or licensed from third parties and delivered to the Customer as part of the Software, as well as any future Updates provided by AlienVault or its Partners.

“Updates” means all subsequent releases and versions of the Software that AlienVault makes generally available to customers.

2. INTELLECTUAL PROPERTY RIGHTS

Ownership. Title to the Software, Documentation, Updates and all patents, copyrights, trade secrets and other worldwide proprietary and intellectual property rights in or related thereto are and will remain the exclusive property of AlienVault and its licensors. Customer may not remove any titles, trademarks or trade names, copyright notices, legends, or other proprietary markings in or on the Software or Documentation and will not acquire any rights in the Software or Documentation, except the limited license specified in this Agreement. AlienVault and its licensors own all rights in any copy, translation, modification, adaptation or Derivative Works of the Software, including any improvement or development thereof. AlienVault retains all rights not expressly granted to Customer in this Agreement. Customer shall promptly notify AlienVault in writing upon discovery of any unauthorized use of the Software or Documentation or infringement of AlienVault’s proprietary rights in the Software or Documentation.

3. LICENSE GRANT

A. Software License. Customer is granted a non-exclusive, non-transferable, non-assignable, non-sublicensable, restricted license to install and use one production copy of the Software in accordance with the relevant Documentation. The Software and Documentation may not be distributed to any third parties. The license granted herein is subject to the specific restrictions and limitations set forth herein, and/or any additional licensing restrictions and limitations specified in the Documentation, or by notification and/or policy change posted at www.alienvault.com.

Customer may use the Software for internal business purposes only in relation to its own computer systems and any computer systems or facilities owned or managed exclusively by or for Customer. Customer may not use the Software for providing hosted or service bureau services to the general public or any third-party entities that are not managed facilities for which Customer provides integral IT services.

B. Restrictions on Use. Customer shall not (i) allow third parties or develop methods for third parties to use the Software; (ii) sell, rent, lease, use collectively, record, license, sublicense, share, distribute, publicly communicate, transfer or exploit in any other manner the Software or Documentation, unless otherwise expressly provided for in this Exhibit; (iii) except as provided by applicable law, decompile, disassemble, or reverse engineer the Software, in whole or in part, and Customer shall not attempt to obtain in any other manner any Software source code, and shall not carry out any action to the detriment of AlienVault’s intellectual property rights or those of its suppliers; (iv) make copies, execute, publish, or reproduce Software or Documentation, unless expressly authorized in this Exhibit (and all copies must maintain AlienVault’s copyright notices); (v) develop any Derivative Works or any type of software program based on Software, the Documentation, or any other Confidential Information of AlienVault; (vi) make available, reveal, disclose, offer, or allow the use of Software by third parties, without the prior written consent of AlienVault; (vii) alter or modify the Software without the prior written consent of AlienVault; (viii) reject, avoid, elude, remove, deactivate, or evade, in any way, any protection mechanism of the Software, including without limitation any mechanism used to restrict or control Software functions; (ix) provide or offer access to any third parties to any restricted online access keys or authentication passwords provided by AlienVault for downloading Software; or (x) disclose to any third party any benchmarking or comparative study involving the Software or Documentation.

4. DISCLAIMERS

The Software is not designed, manufactured, or intended for use in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, direct life-support machines, or any other application in which the failure of the Software could lead directly to death, personal injury, or severe physical or property or environmental damage (collectively, “High Risk Activities”). AlienVault and its suppliers expressly disclaim any express or implied warranty with respect to any High Risk Activities.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. ALIENVAULT DOES NOT WARRANT THAT THE SOFTWARE, OR SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR FREE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALIENVAULT DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

5. LIMITATION OF LIABILITY

IN NO EVENT, WHETHER IN TORT, CONTRACT, OR OTHERWISE, SHALL ALIENVAULT OR ITS LICENSORS, PARTNERS, OR SUPPLIERS BE LIABLE TO CUSTOMER OR ANY THIRD PARTIES UNDER THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, COSTS, LOSSES OR EXPENSE, (INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OR INTERRUPTION OF USE, LOSS OF DATA, DAMAGE TO NETWORKS, EQUIPMENT, OR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR TECHNOLOGY), OR ANY AMOUNTS IN EXCESS OF THE ORIGINAL AMOUNTS PAID TO ALIENVAULT. THE FOREGOING LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

6. CONFIDENTIALITY, CUSTOMER INFORMATION, AND COMMUNICATIONS

A. Confidentiality. Customer acknowledges and agrees that the Software incorporates confidential and proprietary information developed or acquired by AlienVault including, but not limited to, technical and non-technical data, formulas, patterns, compilations, devices, methods, techniques, drawings and processes related to the Software, which constitutes the valuable intellectual property of AlienVault and its suppliers.

The parties may use confidential information solely in accordance with this Agreement and will take all reasonable precautions necessary to safeguard the confidentiality of such information. The parties will hold in confidence and not disclose, reproduce, distribute or transmit the confidential information, directly or indirectly, in any form, by any means, or for any purpose, except to those of its employees, agents, consultants or subcontractors who require access for Customer’s authorized use of the Software in accordance with the terms of this Agreement. Customer will implement reasonable security measures to protect such confidential information at a level no less restrictive than used to protect its own confidential information.

The parties shall not be restricted under this Section 6 with respect to confidential information that the receiving party affirmatively establishes that (i) has or becomes generally available to the public other than as a result of an act or omission of the receiving party or any of its employees, agents, subcontractors or consultants, (ii) was in the possession of the receiving party before receiving the information, (iii) is independently developed by the receiving party without use of the confidential information, or (iv) is required to be disclosed by law, court order or other legal process, provided that the receiving party shall first provide the disclosing party with prompt written notice thereof.

Customer acknowledges that (i) any use or threatened use of the Software in a manner inconsistent with this Agreement, or (ii) any other misuse of the confidential information of AlienVault will cause immediate irreparable harm to AlienVault for which there may be no adequate remedy at law. Accordingly, Customer agrees that AlienVault shall be entitled to seek injunctive relief in the event of any such breach or threatened breach by Customer. Nothing contained herein shall limit AlienVault’s right to any remedies at law.

B. Customer Information. AlienVault may use any technical information Customer provides to AlienVault for any of AlienVault’s reasonable business purposes, including product support and development. Customer acknowledges that the Software may include a monitoring capability that sends anonymous statistics about performance, device utilization and network size remotely to AlienVault. AlienVault will not use technical information in a form that personally identifies the Customer.

C. Notices. AlienVault may send Customer required legal notices and other communications about the Software, including special offers and pricing or other similar information, customer surveys or other requests for feedback (“Communications”). AlienVault will send Communications via in-product notices or email to registered email addresses of named contacts, or will post Communications on its Website. Customer may notify AlienVault of its desire not to receive any such Communications by writing to [email protected]ult.com.

7. TERM AND TERMINATION

This Agreement and the licenses granted hereunder shall remain in effect for so long as Customer continues to pay for the Software, unless earlier terminated as set forth herein. AlienVault may terminate this Agreement and the licenses granted hereunder at any time. Except as expressly provided herein, Sections 1, 2, 4, 5, 6, 7 and 9 of this Agreement shall survive termination.

8. INDEMNIFICATION

AlienVault shall indem­nify and hold harmless Customer and its officers, employees, agents and representatives and defend any action brought against same with respect to any third-party claim, demand or cause of action, including reasonable attorney’s fees, to the extent that it is based upon a claim that the Software infringes or violates any United States patents, copyrights, trade secrets, or other proprietary rights of a third-party. Customer may, at its own expense, assist in such defense if it so chooses, provided that AlienVault shall control such defense and all negotiations relating to the settlement of any such claim. Customer shall prompt­ly provide AlienVault with written notice of any claim which Customer believes falls within the scope of this Section 8. In the event that the Software or any portion thereof is held to constitute an infringement and its use is enjoined, AlienVault may, at its sole option and expense, (i) modify the infringing Software so that it is non-infringing, (ii) procure for Customer the right to continue to use the infringing Software, or (iii) replace said Software with suit­able, non-infringing software. Notwithstanding the foregoing, AlienVault will have no obligation for any claims to the extent such claims result from (i) modifications or alterations of the Software made by or for Customer or any other party that were not provided by AlienVault or authorized by AlienVault in writing; (ii) use outside the scope of the license granted hereunder, (iii) use of a superseded or previous version of the Software if infringement would have been avoided by the use of a newer version which AlienVault made available to Customer, or (iv) use of the Software in combination with any other software, hardware or products not supplied by AlienVault. This indemnity obligation is subject to the limitation of liability.

9. GENERAL

A. Assignment. Neither party may assign this Agreement or any right or obligation hereunder without the other party’s prior written consent. However, AlienVault may assign this Agreement in the event of a merger or consolidation or the purchase of all or substantially all of its assets. This Agreement will be binding upon and inure to the benefit of the permitted successors and assigns of each party.

B. Force Majeure. AlienVault will not be held responsible for any failure, delay or interruption caused by circumstances outside of its control, such as network failure, network connection failure, earthquake, flooding, strikes, embargos or acts of government. If such event giving rise to Force Majeure lasts for more than 30 days, then either party may terminate this Agreement without such termination giving rise to any liability or right to any refund.

C. Amendments. Except as expressly stated herein, the terms of this Agreement may not be modified except by a written agreement signed by both parties. AlienVault reserves the right to update this Agreement on an on-going basis.

D. Severability. If any provision of this Agreement is held illegal or unenforceable by any court of competent jurisdiction, such provision shall be deemed severed from the remaining provisions of this Agreement and shall not affect or impair the validity or enforceability of the remaining provisions of this Agreement.

E. Waiver. No failure of either party to exercise or enforce any of its rights under this Agreement will act as a waiver of those rights.

F. Jurisdiction. The validity, interpretation and enforcement of this Agreement will be governed by and construed in accordance with the laws of the United States and of the State of California without giving effect to the conflicts of law provisions thereof or the United Nations Convention on Contracts for the International Sale of Goods. Customer hereby irrevocably consents to jurisdiction of both the state and federal courts located in San Francisco County, California.

G. Relationship of the Parties. Each party will be and act as an independent contractor and not as an agent or partner of, or joint venturer with the other party, and neither party will by virtue of this Exhibit have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.

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