Bomgar Corporation Discovery Tool EULA 6.2
Effective July 1, 2018
IMPORTANT – PLEASE REVIEW CAREFULLY THE FOLLOWING TERMS AND CONDITIONS OF THIS DISCOVERY TOOL END USER LICENSE AGREEMENT (“EULA”). THIS EULA IS ENTERED INTO BETWEEN BEYOND TRUST AND LICENSEE AS OF THE EFFECTIVE DATE. LICENSEE HEREBY ENTERS INTO AND ACCEPTS THIS EULA AND THE TERMS AND CONDITIONS HEREOF. LICENSEE REPRESENTS THAT HE OR SHE IS AT LEAST 18 YEARS OF AGE.
In consideration of the mutual covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:
1. Definitions. Except as may otherwise be defined herein, the following terms are defined for the purposes of this EULA and any Order Form as follows:
“Beyond Trust” means Beyond Trust Corporation, a Delaware corporation.
“Confidential Information” means information that is of value to Beyond Trust and is treated as confidential, including, but not limited to, pricing, volume discounts, future business plans, patterns, devices, methods, techniques, know-how, drawings, processes, financial data, financial plans, product plans and information regarding actual or potential customers or suppliers.
“Documentation” means the written or electronic documents, help files, and other textual matter that describes the specifications, functionality, and limitations, which are included with the Software.
“Effective Date” means the earlier of the following: the date Licensee first installs or downloads the Software.
“EULA” means this Beyond Trust Discovery Tool End User License Agreement.
“License” means the rights granted in Section 2 below.
“Licensee” means the legal entity or individual that has downloaded the Software from Beyond Trust.
“Software” means the package of computer programs licensed to Licensee known as the Discovery Tool.
“Third Party Software” means Software that is owned and licensed by parties other than Beyond Trust and that is either integrated with or made part of the Software, or otherwise necessary for the operation of the Software.
2.1 Subject to the terms, conditions, and limitations set forth in this EULA, Beyond Trust hereby grants to Licensee a limited, revocable, non-exclusive, non-transferable, non-sublicenseable, non-proprietary object code license to use the Software for Licensee’s internal purposes. The License granted hereunder does not include any other rights except as expressly specified herein. Any use or copying of the Software or Documentation not expressly authorized hereunder is prohibited and a breach of this EULA.
2.2 Licensee shall not, and shall not allow third parties to, directly or indirectly (i) use any Confidential Information to create any software or documentation that is similar to any of the Software or Documentation; (ii) encumber, transfer, rent, lease, time-share or use the Software in any service bureau arrangement or for the benefit of any third party; or (iii) copy, distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify the Software.
2.3 All Third Party Software is licensed to Licensee in accordance with a separate license agreement(s) included with the Software or listed in the Documentation.
3. Term; Termination.
3.1 Term. Subject to satisfaction of all of Licensee’s obligations hereunder or unless sooner terminated in accordance with this EULA, the term of the License shall be perpetual.
3.2 In addition to any other rights of termination set forth herein, this EULA and the License granted hereunder shall terminate upon thirty (30) days after written notice from Beyond Trust to Licensee or immediately upon notice to Licensee by Beyond Trust of Licensee’s breach of this EULA.
3.3 In addition to any other remedies Beyond Trust may have at law or in equity, upon termination of the License, Licensee shall within five (5) days return to Beyond Trust the Software, Documentation, Confidential Information, and all copies thereof, or upon request by Beyond Trust, in its sole discretion, destroy the same and certify in writing by an officer of Licensee that same have been destroyed together with the manner, date, and time of such destruction.
3.4 Termination shall not release Licensee, and Licensee shall remain liable to Beyond Trust for all amounts incurred and/or due and payable as of the effective date of termination.
3.5 The provisions of Sections 5, 6, 7, and 8 (and all other provisions which by their nature would extend beyond the term of this EULA) shall survive the termination of this EULA.
4. Fees and Payments. There is no charge for the License during the limited term of this EULA.
5. Title and Prohibited Actions.
5.1 All right, title, and interest in and to the Software and the Documentation, including, without limitation, the media on which the same are furnished to Licensee, are and shall remain the sole and exclusive property of Beyond Trust; provided, however, that Beyond Trustclaims no right in the Third Party Software or Documentation, and the same is owned exclusively by the licensors of same. Licensee acknowledges that no right, title, or interest in or to the Software, or the Documentation is granted pursuant to this EULA, and no such assertion shall be made by Licensee.
5.2 Licensee acknowledges that the Software and Documentation are works copyrighted under United States federal copyright law and protected by other intellectual property rights and embody valuable confidential and secret information of Beyond Trust or their Third Party licensors, the development of which required the expenditure of considerable time and money. Except as expressly provided in a Third Party License EULA or by law, Licensee shall not in any manner or under any circumstances use, copy, modify, enhance, merge, reverse engineer, reverse assemble, decompile, or in any way alter the Software or Documentation or any copy, adaptation, transcription, or merged portion thereof or otherwise attempt to derive Source Code therefrom. Licensee shall not permit or allow any person to remove any proprietary or other legend or restrictive notice contained or included in any material provided by Beyond Trust, and Licensee shall not permit or allow any person to reproduce or copy any such material except as specifically provided in this EULA. Licensee agrees to maintain any and all of Beyond Trust's copyright, trademark, and other notices on the Software and Documentation and shall reproduce such notices on any and all copies, in whole or in part, thereof (which copies may only be made as expressly permitted herein). Licensee will not take any action that jeopardizes Beyond Trust's proprietary rights or acquire any right in the Software or the Confidential Information. Beyond Trust will own all rights in any copy, translation, modification, adaptation, or derivation of the Software or other items of Confidential Information, including any improvement or development thereof.
6. Disclaimers and Limitation of Liability. 6.1 LICENSEE IS SOLELY RESPONSIBLE FOR ITS USE OF THE SOFTWARE AND SHALL AT ALL TIMES USE THE SOFTWARE IN COMPLIANCE WITH ALL APPLICABLE LAWS. THE SOFTWARE AND DOCUMENTATION ARE PROVIDED TO LICENSEE ON AN "AS IS" AND “AS AVAILABLE” BASIS ONLY, AND BEYOND TRUST MAKES NO PROMISES, REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESSED OR IMPLIED, REGARDING OR RELATING TO THE SAME, OR TO ANY OTHER MATERIAL FURNISHED OR PROVIDED TO LICENSEE PURSUANT TO THIS EULA OR OTHERWISE. TO THE MAXIMUM EXTENT ALLOWED BY LAW, BEYOND TRUST SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT WITH RESPECT TO SOFTWARE AND SERVICES OR THE USE THEREOF. BEYOND TRUST DOES NOT WARRANT OR REPRESENT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ANY DEFECTS IN THE SOFTWARE OR DOCUMENTATION ARE CORRECTABLE OR WILL BE CORRECTED. BEYOND TRUST SHALL HAVE NO RESPONSIBILITIES OR LIABILITY FOR INCORRECT DATA OR INFORMATION INPUT INTO THE SOFTWARE OR FOR ERRORS IN OUTPUT, CALCULATIONS, OR RESULTS CAUSED BY THE SAME OR THIRD PARTY SOFTWARE. BEYOND TRUST DOES NOT WARRANT THAT THERE ARE NO DISCREPANCIES BETWEEN THE SOFTWARE AND DOCUMENTATION.
6.2 IN NO EVENT SHALL BEYOND TRUST, AND/OR BEYOND TRUST’S OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, AGENTS, DISTRIBUTORS, MARKETING PARTNERS, RESELLERS, PARENT, AFFILIATES OR SUBSIDIARIES (COLLECTIVELY THE “BEYOND TRUST”) BE LIABLE FOR ANY LOSS OF DATA, COSTS OF SUBSTITUTE GOOD OR SERVICES, LOSS OF PROFITS OR INCIDENTAL, SPECIAL, DIRECT, INDIRECT, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING IN CONNECTION WITH THIS EULA, OR THE USE OR INABILITY TO USE ANY SOFTWARE OR DOCUMENTATION, BASED ON ANY THEORY OF CONTRACT, WARRANTY, TORT, STRICT LIABILITY, NEGLIGENCE, OR OTHERWISE, EVEN IF BEYOND TRUST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6.3 BEYOND TRUST PARTIES’ CUMULATIVE LIABILITY TO LICENSEE FOR ALL CLAIMS RELATING TO THE SOFTWARE OR OTHERWISE RELATING TO THIS EULA, SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES (AS APPLICABLE) PAID TO BEYOND TRUST HEREUNDER WITH RESPECT TO SOFTWARE GIVING RISE TO THE CLAIM.
6.4 THE BEYOND TRUST PARTIES SHALL NOT BE LIABLE FOR CLAIMS BROUGHT MORE THAN ONE YEAR AFTER THE FACTS GIVING RISE TO SUCH CLAIMS WERE FIRST DISCOVERABLE.
7. Confidential Information. Licensee, on its own behalf and on behalf of its employees, officers, directors, agents, and affiliates, during the term of this EULA and thereafter, covenants and agrees that it will not use, disclose, divulge, disseminate or otherwise make available to any third party any Confidential Information or otherwise make use of any Confidential Information, without the prior written consent of Beyond Trust except as expressly allowed herein. Licensee shall use the highest commercially reasonable degree of care to protect the Confidential Information, including ensuring that its employees or consultants with access to such Confidential Information have agreed in writing not to disclose or use the Confidential Information. Licensee shall bear the responsibility for any breaches of confidentiality by its employees and consultants. Within fifteen (15) days after request by Beyond Trust, Licensee shall return to Beyond Trust all originals and copies of any Confidential Information and all information, records and materials developed therefrom by Licensee, or, upon request by Beyond Trust, in its sole discretion, destroy the same and certify in writing that same have been destroyed together with the manner, date, and time of such destruction. Nothing herein shall prevent Licensee from disclosing all or part of the Confidential Information as necessary pursuant to the lawful requirement of a court or governmental agency or when disclosure is required by operation of law; provided that prior to any such disclosure, Licensee shall use reasonable efforts to (i) promptly notify Beyond Trust in writing of such requirement to disclose, and (ii) cooperate fully with Beyond Trust in protecting against any such disclosure or obtaining a protective order. Licensee recognizes and acknowledges that the use or disclosure of Confidential Information in a manner inconsistent with the provisions of this EULA shall cause Beyond Trust immeasurable damage for which adequate remedy at law may not be available. Beyond Trust shall therefore be entitled to obtain injunctive and other equitable relief for the breach or threatened breach of this section, without the requirement to post bond; provided that if the court requires a bond, the amount shall not exceed $1,000. The rights under this section shall be cumulative of all other rights of Beyond Trust. The foregoing obligations shall not apply if and to the extent that Licensee establishes that: (i) the information communicated was already known to Licensee , without obligation to keep it confidential, at the time of its receipt directly or indirectly from Beyond Trust; (ii) the information communicated was received by Licensee in good faith from a third party lawfully in possession thereof and having no obligation to keep such information confidential; (iii) the information is independently developed by Licensee without use of any Confidential Information received from Beyond Trust; or (iv) the information communicated was publicly known at the time of its receipt by Licensee or has become publicly known other than by a breach of this EULA or other action by Licensee.
8. General Provisions.
8.1 Independent Parties. This EULA does not in any way create or constitute a relationship of employment, partnership, or a joint venture between the parties.
8.2 Assignment. Licensee’s rights and obligations under this EULA may not be assigned or transferred (including by operation of law) without the prior written consent of Beyond Trust and any unauthorized assignment or transfer shall be null and void. Beyond Trust may assign the EULA or any of its rights and obligations under the EULA to an affiliate or third party, which assignment shall become automatically effective upon assignment. In the case of any permitted assignment or transfer of under this EULA, this EULA or the relevant provisions shall be binding upon, and inure to the benefit of, the parties and their respective successors, executors, heirs, representatives, administrators and permitted assigns. In the event Beyond Trust permits Licensee to assign this EULA or a License granted hereunder, then the transferee must accept the terms and conditions of this EULA, and Licensee ’s license to use the Software shall automatically terminate upon transfer.
8.3 Remedies. All remedies set forth in this EULA shall be cumulative and in addition to and not in lieu of any other remedies available to either Party at law, in equity or otherwise, and may be enforced concurrently or from time to time.
8.4 Force Majeure. Licensee agrees that Beyond Trust shall not be liable for any losses and damage, including consequential damages, detention, or delay or failure to perform any services resulting from causes beyond the reasonable control of Beyond Trust including, but not limited to, acts of God, acts or omissions on the part of Licensee, delays in transportation, failure to obtain supplies not caused by the negligence of Beyond Trust, changes in governmental regulations, war, or civil disturbance.
8.5 Export Controls. Licensee shall comply fully with all export and import laws, regulations, orders, and policies of the U.S., or any other applicable jurisdiction. Licensee shall only export or re-export the Software and Documentation, directly or indirectly, in accordance with U.S. Export Administration Regulations, as amended. Licensee acknowledges and agrees it is solely responsible for compliance with any and all import and export restrictions, and other applicable laws, in the U.S. or any other applicable jurisdiction. Licensee represents that neither the United States Bureau of Industry and Security nor any other federal agency has suspended, revoked or denied Licensee ’s export privileges, and Licensee will not use or transfer the Software for end use relating to any nuclear, chemical or biological weapons, or missile technology unless authorized by the U.S. Government by regulation or specific license.
8.6 Notices. All notices required to be given hereunder shall be given in writing and shall be delivered either by certified mail or courier addressed to the other party. All such communications shall be deemed received by the other party upon the earlier of actual receipt or actual delivery.
8.7 Severability. Should a court of competent jurisdiction hold that any provision of this EULA, or portion thereof, is void, invalid, or unenforceable for any reason, that court shall replace that provision with an enforceable one most closely resembling the court’s interpretation of the parties’ original intent. Should the court be unable or unwilling to do so, that provision shall be struck from this EULA and all remaining provisions shall continue in force. Each provision is separable and constitutes a separate and distinct covenant.
8.8 Governing Law; Venue, English Language. This EULA shall be construed in accordance with the laws of the United States and of the State of Delaware, applicable to contracts entered into and solely performed therein, without regard to that body of law pertaining to conflicts of law, and expressly excluding (i) the United Nations Convention on Contracts for the International Sale of Goods (ii) the 1974 Convention on the Limitation Period in the International Sale of Goods (the "1974 Convention"); and (iii) the Protocol amending the 1974 Convention, done at Vienna April 11, 1980. Except as necessary for Beyond Trust to obtain injunctive relief, Licensee irrevocably submits to the exclusive jurisdiction of the state and federal courts in the state of Delaware and irrevocably waives all defenses relating to this jurisdiction. The parties confirm that this EULA and all related documentation are and will be drafted in English.
8.9 Waiver. No waiver of any breach or default hereunder shall be considered valid unless in writing and signed by the party giving such waiver, and no such waiver shall be deemed a waiver of any subsequent breach or default of the same or similar nature.
8.10 No Third Party Beneficiaries. Nothing expressed or implied in this EULA is intended, or shall be construed, to confer upon or give any party other than the parties hereto and their respective corporate affiliates, executors, heirs, representatives, administrators, successors and assigns, any rights or remedies under or by reason of this EULA.
8.11 License to Government. If any Software or Documentation are acquired by or on behalf of a unit or agency of the United States Government (the "Government"), the Government agrees that such software or documentation is "commercial computer software" or "commercial computer software documentation" and that, absent a written agreement to the contrary, the Government's rights with respect to such software or documentation are limited by the terms of this EULA, pursuant to FAR § 12.212(a) and/or DFARS § 227.7202-1 (a), as applicable. Any technical data related to such software or documentation are "Limited Rights Data" pursuant to FAR § 52.227-19 with Alternate II, or, if applicable, are provided to the Government subject to DFARS § 252.227-7015. Any use, modification, reproduction, release, performing, displaying, or disclosing of the Software by the Government shall be governed solely by the terms of this EULA.
8.13 Integration and Amendment. This EULA and written documents referenced herein (including the Order Form) constitute the entire EULA of the parties superseding and extinguishing all prior agreements or understandings, representations or warranties, relating to the subject matter hereof. This EULA may not be modified, or amended except (i) by written agreement specifically referring to this EULA signed by the parties hereto; (ii) by Licensee ’s acceptance of a subsequent electronic agreement provided by Beyond Trust with respect to the Software; or (iii) ten (10) business days after Beyond Trust posts an amendment to this EULA to a webpage which Beyond Trust shall notify Licensee by email to Licensee ’s email address specified on the Order Form, unless Licensee notifies Beyond Trust in writing that Licensee does not accept such amendment, in which case this EULA shall immediately terminate. Licensee represents and acknowledges that, in entering into this EULA, it did not rely on any representations or warranties other than those explicitly set forth in this EULA. LICENSEE HEREBY AGREES THAT ANY VARYING OR ADDITIONAL TERMS CONTAINED IN ANY PURCHASE ORDER OR OTHER WRITTEN NOTIFICATION OR DOCUMENT ISSUED BY LICENSEE IN RELATION TO THE SOFTWARE LICENSED HEREUNDER SHALL BE OF NO FORCE OR EFFECT.
9.15 Construction. Every covenant, term and provision of this EULA shall be construed simply according to its fair meaning and not strictly for or against any party. Every reference to “including” means “including, without limitation.”
Beyond Trust Corporation Discovery Tool EULA 6.2