CLICK-THROUGH LICENSE AGREEMENT
Version Date: 22-Sep-14
By clicking on the button labeled “I Agree,” you agree to the terms of this Click-Through License Agreement (this “Agreement”). This Agreement, effective as of the date you first click “I Agree” (the “Effective Date”), is by and between you (“Licensee,” which term includes your employer or contracting organization) and Promisec, LLC or one of its affiliated entities or authorized distributors (“Promisec”) for the use of the Promisec™ Integrity™ service (the “Service”) in accordance with these terms and conditions and any applicable ordering document (in each instance, an “Order,” specifying the pricing, usage limitations, and term commitments with respect to the Service). The terms of this Agreement also apply to any software (the “Software”) that Promisec may make available in connection with the Service.
- IDENTITY OF LICENSEE: In registering for access to the Service and Software, a person is required to provide his/her name and employer information, among other data. The employer (or other applicable principal entity) is the Licensee under this Agreement. The individual filling in the information represents and warrants to Promisec that he/she has authority to enter into this Agreement on behalf of Licensee.
- LIMITED LICENSE: Subject to payment of applicable Fees, and the terms and conditions of this Agreement, Promisec grants Licensee a limited, non-exclusive, non- transferable license to use the Service, the Software, and related documentation (“Documentation”) for the Licensee’s internal business purposes only, and further subject to the applicable limitations set forth in the Order. In addition, if the Service is used under a trial license, the license is royalty-free, and solely for internal evaluation purposes by Licensee. Licensee agrees to provide access to the Service, Software, and Documentation only to those who require such access in order to use the Service as permitted in this Agreement. The Service, Software, and Documentation shall not be copied or used for any purposes other than as specified in this Agreement, and shall not be transferred or accessed outside of Licensee’s home country set forth in the Order, electronically or otherwise. Except as provided herein, Promisec does not grant to Licensee any express or implied right under Promisec patents, copyrights, trademarks, or trade secret information. Licensee may not reverse engineer, decompile, disassemble, rent, lease, sublicense, or otherwise transfer the Service or Software or possession of any copy in whole or in part of the Software to another party.
- FEES: Licensee shall pay the fees for use of the Service and Software as specified in the applicable Order (together, the “Fees”), in the currency specified and to the account specified in Promisec’s invoice or the Order, as applicable. All Fees are non-cancellable and the sums paid nonrefundable, except as otherwise provided in this Agreement or the Order. Licensee shall pay interest on all outstanding sums from the date payment was due until the date of payment at a rate of 1.0% per month (or the highest rate allowed by law, if lower). If, at any time, Licensee has not paid all undisputed Fees then due, then Promisec shall have the right to suspend access to the Service. Fees are exclusive of all federal, state, local and foreign taxes, levies, assessments, and withholdings. Licensee agrees to bear and be responsible for the payment of all such taxes, levies and assessments imposed on Licensee or Promisec arising out of this Agreement, excluding only any tax based on Promisec’s net income. Any purchase order or other document issued by Licensee in connection with its purchase of a License (in each case, a “Purchase Order”) shall be placed pursuant to, and subject to, this Agreement. No Purchase Order shall be binding on Promisec except as to the applicable Fees. Any additional or inconsistent terms contained on all such Purchase Orders will be superseded by the terms of this Agreement.
- AUDIT. Licensee shall permit Promisec to audit Licensee’s use of the Service and Software at any premises owned or controlled by Licensee or its agents during regular business hours and upon no less than two (2) weeks’ notice. Licensee agrees to provide Promisec’s designated audit team, including any contractors, access to the relevant Licensee records and facilities and to permit copying of documents and data as reasonably required for auditing. Promisec will pay for any such audit unless the audit reveals a substantial material breach of any provision of this Agreement or an underpayment of Fees of more than 10%, in which case Licensee shall reimburse Promisec for such audit costs.
- USE OF SCANNING SERVICE AND SOFTWARE: The Service and Software are designed to permit access to and scanning of systems and sites identified by IP addresses (the “Scanned Sites”). By use of the Service and Software under this Agreement, Licensee represents and warrants that: (1) it is lawfully permitted to access and scan the Scanned Sites, and (2) the Service and Software will be used only for lawful internal business purposes of Licensee.
- INDEMNITY – SCANNED SITES: LICENSEE WILL INDEMNIFY AND HOLD HARMLESS PROMISEC, ITS AFFILIATES, AUTHORIZED RESELLERS, PARTNERS AND SPONSORS, AND THEIR OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS FROM AND AGAINST ANY THIRD-PARTY CLAIMS, SUITS, LIABILITIES, LOSSES, DAMAGES, JUDGMENTS, AWARDS, FINES, PENALTIES, COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES) INCURRED BY OR LEVIED AGAINST THEM RESULTING FROM OR BASED ON LICENSEE’S USE OF OR INABILITY TO USE THE SOFTWARE OR SERVICE, INCLUDING ANY CLAIM RESULTING FROM LICENSEE’S BREACH OF THE REPRESENTATIONS IN SECTION 5. IN ADDITION, LICENSEE ALSO ACKNOWLEDGES AND AGREES THAT THE SCANNING OF THE SCANNED SITES COULD RESULT IN THE DISRUPTION OF SERVICES OR FUNCTIONALITY AT SUCH SCANNED SITES. LICENSEE ACKNOWLEDGES AND AGREES THAT THE SERVICE AND SOFTWARE INVOLVES SUBSTANTIAL RISK AND AS A CONSEQUENCE, LICENSEE ASSUMES THE RISK FOR ALL DAMAGES, LOSSES AND EXPENSES RESULTING FROM LICENSEE’S USE OF THE SERVICE AND SOFTWARE.
- OWNERSHIP AND COPYRIGHT OF SOFTWARE: This License transfers no title to the Service, Software, or Documentation to Licensee. The Service, Software, Documentation and any copies thereof are proprietary and remain the property of Promisec and its licensors. The Service, Software, and Documentation are copyrighted and protected by international law. Licensee will not remove the copyright notice or any trademark or trademark notice from the Service, Software, or Documentation. Licensee will reproduce the copyright and trademark notice and any trademark on any copy or portion of the Service, Software, or Documentation. Licensee must prevent any unauthorized copying of the Service, Software, and Documentation. The Service, Software, and Documentation are Promisec’s confidential information and Licensee agrees to maintain the information in confidence and not disclose such information to third parties, using the same degree of care, but no less than reasonable care, as used to protect its own confidential information of like nature.
- TERMINATION: Except as otherwise provided in the Order, Promisec may terminate this Agreement, at any time, upon notice of termination to Licensee (for any reason or no reason whatsoever). Upon termination, Licensee must return to Promisec or destroy all copies of the Service, Software, and Documentation in its possession, custody, or control. After termination, Licensee may no longer access the Service.
- LIMITED APPLICABILITY FOR CUSTOMERS WITH SIGNED SERVICE AGREEMENTS WITH PROMISEC: If you have a separate signed service agreement (or master agreement containing applicable terms) providing for the use of the Service, then the terms of that agreement will take precedence over the terms of this Agreement in the event of any conflict.
- DISCLAIMERS AND LIMITATION OF LIABILITY: THE SERVICE, SOFTWARE, AND DOCUMENTATION ARE NOT REPRESENTED AS COMPLYING WITH ANY REGULATION, LAW OR REQUIREMENT, AND MAY CONTAIN DEFECTS. PROMISEC MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WHETHER OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. PROMISEC DOES NOT WARRANT THAT THE USE OF THE SERVICE, SOFTWARE, AND DOCUMENTATION OR ANY INFORMATION RELATING THERETO OR CONTAINED THEREIN WILL NOT INFRINGE ANY PATENT, COPYRIGHT, TRADE SECRET, OR TRADEMARK OF ANY THIRD PERSON OR PARTY. PROMISEC DOES NOT WARRANT IN ANY WAY THAT IT WILL ANNOUNCE ANY VERSION OF THE SOFTWARE, RELATED HARDWARE, DATA OR DOCUMENTATION AS A PRODUCT OR THAT THE SERVICE, SOFTWARE, OR DOCUMENTATION WILL BE MADE COMMERCIALLY AVAILABLE. THE SERVICE, SOFTWARE, AND DOCUMENTATION ARE LICENSED “AS IS” AND PROMISEC WILL NOT BE RESPONSIBLE FOR PROVIDING ANY MAINTENANCE, SUPPORT, UPDATES, OR REVISIONS FOR THE SOFTWARE. USE OF THE SOFTWARE IS AT LICENSEE’S OWN RISK. IN NO EVENT WILL PROMISEC BE LIABLE FOR ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE SERVICE, SOFTWARE, OR DOCUMENTATION INCLUDING WITHOUT LIMITATION, (i) SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES OR (ii) ANY BUSINESS PROFITS, INTERRUPTIONS, RE-RUN TIME, LOSS OF DATA, INACCURATE INPUT OR WORK DELAYS. THE PROVISIONS OF THIS SECTION 7 SHALL APPLY REGARDLESS OF THE TYPE OF ACTION, WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE.
- LIMITATION ON AMOUNT OF DAMAGES. IN NO EVENT SHALL THE TOTAL LIABILITY OF PROMISEC AND ITS OFFICERS, EMPLOYEES, SUPPLIERS, DIRECTORS, PARENTS, AFFILIATES OR SUBSIDIARIES EXCEED IN THE AGGREGATE (INDIVIDUALLY AND COLLECTIVELY) THE FEES PAID BY LICENSEE WITHIN THE 12 MONTHS PRIOR TO THE PARTICULAR TRANSACTION OR CIRCUMSTANCE GIVING RISE TO THE LIABILITY.
- EXPORT: The Service, Software, and Documentation may not be shipped, accessed, transferred or exported, directly or indirectly, to any country prohibited by the U.S. export control laws and regulations, or in contravention of such laws or regulations. In particular, Licensee may not download, export, or re-export any software or technical data received in connection with this Agreement, regardless of the manner in which received, (a) into, or to a national or resident of, any country to which the United States has embargoed goods, or (b) to anyone on the United States Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders. By using the Service and Software, Licensee represents and warrants that it is not located in, or under the control of, a national or resident of any such country or on any such list.
- U.S. GOVERNMENT USE: The Software made available under this Agreement is commercial computer software developed exclusively at private expense. Unless otherwise set forth in this Agreement, use, duplication, and disclosure by civilian agencies of the U.S. Government shall not exceed those minimum rights set forth in FAR 52.227-19(c) or successor regulations. Use, duplication, and disclosure by U.S. Department of Defense agencies is subject solely to the software license terms contained in this Agreement, as stated in DFARS 227.7202 or successor regulations. U.S. Government rights shall apply only to the specific agency and program for which the Software is obtained.
- GENERAL: This Agreement is governed by the laws of the Commonwealth of Massachusetts. Licensee agrees that it will be subject to personal jurisdiction in the Commonwealth of Massachusetts for any dispute arising out of or relating to this Agreement. The application of the United Nations Convention of Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act is expressly excluded. Any dispute between Licensee and Promisec regarding this Agreement will be subject to the exclusive jurisdiction of the state and federal courts in Middlesex and Suffolk Counties, in the Commonwealth of Massachusetts, USA. This Agreement constitutes the exclusive and entire Agreement with respect to Licensee’s use of the Service, Software, and Documentation. Each Party may at any time seek preliminary, interim, or permanent injunctive relief in connection with the performance of the Agreement or any matter arising hereunder from or before any Court having jurisdiction to grant such requested relief and without the need to post a bond. Assignment. Licensee may not assign this Agreement or any of its rights and obligations hereunder. Promisec may assign this Agreement and any of its rights and obligations hereunder. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties to it and their respective successors and permitted assigns.
BY CLICKING “I AGREE,” LICENSEE ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS.