Last updated March 25, 2021.
CAREFULLY READ THIS END USER LICENSE AGREEMENT (THIS “EULA”) BEFORE INSTALLING (IF NOT PRE- INSTALLED) OR USING THE SOFTWARE. THE AFFIRMATIVE ACT OF YOU OR THE ENTITY THAT YO U REPRESENT (“YOU” OR “LICENSEE”) INSTALLING OR USING THE SOFTWARE OR EXECUTING ORDERING DOCUMENTS WITH CIPHERCLOUD, INC. (“CIPHERCLOUD”) MEANS YOU ACCEPT THE SOFTWARE, AND YO U AGREE TO BE BOUND BY THIS EULA. IF YOU ARE ENTERING INTO THIS EULA ON BEHALF OF ANOTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS EULA AND MAY NOT USE THE SOFTWARE OR SERVICES. YOU MAY HAVE A WRITTEN AND SIGNED AGREEMENT DIRECTLY WITH CIPHERCLOUD (E.G. MASTER LICENSE AGREEMENT) THAT SUPPLEMENTS OR SUPERSEDES ALL OR PORTIONS OF THIS EULA.
1.1 “Confidential Information” means any and all information related to a party’s business (including software, source code and specifications, trade secrets, technical information, business forecasts and strategies, personnel information and proprietary information of third parties provided to the other party in confidence) that is labeled or identified as “confidential” or “proprietary”; and if disclosed orally or otherwise in intangible form, is confirmed as such in writing within thirty (30) days of such dis closure; or otherwise is of such a type or disclosed in such a way that a reasonable person would understand that the information disclosed is confidential or proprietary. Without limiting the foregoing, all Software and Documentation shall be deemed the “Confidential Information” of CipherCloud.
1.2 “Documentation” means CipherCloud’s published user and administration manuals and other documentation for the Software that are furnished to Licensee by CipherCloud.
1.3 “Server” means a production capacity computer system that is either physical or virtual regardless of the number of CPU’s or cores.
1.4 “Software” means the CipherCloud proprietary software product(s) as licensed to Licensee in object code format.
2.1 Grant. Subject to the terms and conditions of this EULA and payment of all fees and any applicable user/use limitations, CipherCloud hereby grants to Licensee a nonexclusive, non-sublicensable, nontransferable, revocable license to: (i) install one (1) instance of the Software, in object code form only, on a Server under the sole control of Licensee; (ii) use, perform and dis play the installed copy of the Software in accordance with the Documentation for Licensee’s internal purposes only; and (iii) make one (1) backup copy of the Software.
2.2 Restrictions. Licensee acknowledges and agrees that the Software and its structure, organization, and source code constitute valuable trade secrets and Confidential Information of CipherCloud and its suppliers. Licensee agrees not to: (i) modify, adapt, alter, translate, or create derivative works from the Software; (ii) merge the Software with any other software; (iii) distribute, sublicense, lease, rent, loan, or otherwise transfer the Software to any third party; (iv) use the Software other than as described in the Documentation; (v) use the Software on or with any system for which it was not intended (as described in the Documentation); (vi) use the Software in any time-sharing, outsourcing, service bureau, hosting, application service provider or managed service provider environment; (vii) disclose to any third party any benchmarking or comparative study or analysis involving the Software (“Benchmarking”) or any other information related thereto; (viii) use the Software or any Benchmarking in connection with the development of products that compete with the Software. Licensee shall not remove, alter, or obscure in any way all proprietary rights notices (including copyright, patent, and trademark notices and symbols) of CipherCloud or its suppliers contained on or within the copies of the Software furnished by CipherCloud to Licensee. Licensee shall not disassemble, reverse engineer, analyze, decompile, modify, convert or translate the Software or apply any procedure or process to the Software in order to ascertain, derive and/or appropriate for any reason or purpose the source code for the Software or any Confidential Information, trade secret information or process or software contained in the Software, except as otherwise expressly permitted by applicable law that may not lawfully be excluded by agreement between the parties.
2.3 Owners hip. As between Licensee and CipherCloud, except for the nonexclusive licenses expressly granted to Licensee in Section 2.1, CipherCloud and its suppliers retain all right, title and interest in and to the Software. There are no implied licenses in this EULA, and all rights not expressly granted hereunder are reserved to CipherCloud and its suppliers.
2.4 Updates and Support Services. Updates and/or support services are not necessarily provided with the Software, and may require additional payment or include additional terms and conditions. However, to the extent that an update to the Software is provided, such update shall be deemed “Software” provided subject to this Agreement. If support services are provided, CipherCloud reserves the right to change the scope or duration of such services at any time, and to access, freely use and distribute data collected from Licensee through such services.
3. TERM AND TERMINATION. This EULA shall enter into effect upon its acceptance as set forth above and continue in full force and effect until revoked by CipherCloud or earlier terminated by either party as expressly permitted by this EULA. Each party shall have the right to terminate this EULA immediately upon written notice if: (i) Licensee discontinues use of the Software; or (ii) the other party breaches a material term of this EULA and fails to cure such breach within thirty (30) days after written notice of breach by the non-breaching party. Notwithstanding the foregoing, CipherCloud shall have the right to terminate this EULA immediately upon written notice if Licensee breaches Section 2. Upon the expiration or any termination of this EULA, all licenses granted hereunder s hall immediately terminate and Licensee shall return or destroy all copies of the Software, Documentation and any other Confidential Information.
4. DISCLAIMER OF WARRANTY. CIPHERCLOUD AND ITS SUPPLIERS PROVIDE THE SOFTWARE AND DOCUMENTATION “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE AND DOCUMENTATION IS WITH LICENSEE. SHOULD THE SOFTWARE OR DOCUMENTATION PROVE DEFECTIVE, LICENSEE ASSUMES THE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.
5. LIMITATION OF LIABILITY. IN NO EVENT W ILL CIPHERCLOUD OR ITS SUPPLIERS BE LIABLE FOR ANY LOST DATA, LOST PROFITS, SECURITY BREACH OR GOVERNMENTAL FINE DUE TO RELIANCE ON THE SOFTWARE OR SUPPORT SERVICES, OR CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, ARISING FROM OR RELATING TO THIS EULA, EVEN IF A PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL CIPHERCLOUD’S OR ITS SUPPLIERS’ TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THIS EULA, WHETHER IN CONTRACT OR TORT OR OTHERWISE, EXCEED A SUM EQUAL TO THE TOTAL OF ALL FEES PAID BY LICENSEE TO CIPHERCLOUD DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT FIRST GIVING RISE TO LIABILITY. THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM.
6. EXPORT CONTROL. Licensee represents and warrants that it shall comply with all laws and regulations applicable to Licensee with respect to the license and use of the Software. Licensee further acknowledges and agrees that the Software licensed under this Agreement may be subject to restrictions and controls imposed by the United States Export Administration Act and the regulations thereunder. Licensee agrees to comply with all applicable export and reexport control laws and regulations, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (“ITAR”) maintained by the Department of State. Specifically, Licensee covenants that it shall not, directly or indirectly, sell, export, reexport, transfer, divert, or otherwise dis pose of any Software or technology (including products derived from or based on such technology) received from CipherCloud under this Agreement to any destination, entity, or person prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations. These prohibitions include, but are not limited to the following: (i) the Software cannot be exported or re -exported to any countries embargoes by the United States (currently including Cuba, Iran, North Korea, Sudan or Syria) which includes nationals of these countries employed by Licensee; (ii) the Software cannot be exported or re -exported for military us e in country group ‘b’ prior to valid ‘export license’ or valid ‘license exception’; (iii) engineers cannot have access to CipherCloud’s proprietary encryption source code; and (iv) the Software cannot be used for any prohibited end uses including any ‘nuclear, biological or chemical weapon related activities’. Licensee agrees to notify CipherCloud of any suspicious activities by any employee related to the Software. Licensee agrees to indemnify, to the fullest extent permitted by law, CipherCloud from and against any fines or penalties that may arise as a res ult of Licensee’s breach of this provision. This export control clause shall survive termination or cancellation of this Agreement.
7. ANTICORRUPTION LAWS. Licensee acknowledges that it is familiar with and understands the provisions of the U.S. Foreign Corrupt Practices Act (the “FCPA”) and the U.K. Bribery Act of 2010 (“UKBA”) and agrees to comply with its terms as well as any provisions of local law or CipherCloud’s corporate policies and procedures related thereto. Licensee further understands the provisions relating to the FCPA and UKBA’s prohibitions regarding the payment or giving of anything of value, including but not limited to payments, gifts, travel, entertainment and meals, either directly or indirectly, to an official of a foreign government or political party for the purpose of influencing an act or decision in his or her official capacity or inducing the official to use his or her party’s influence with that government, to obtain or retain business involving the Software. Licensee agrees to not violate or knowingly let anyone violate the FCPA or UKBA, and Licensee agrees that no payment it makes will constitute a bribe, influence payment, kickback, rebate, or other payment that violates the FCPA, the UKBA, or any other applicable anticorruption or antibribery law.
8. U.S. GOVERNMENT RESTRICTED RIGHTS. The Software and Documentation are “commercial items”, “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the Software and Documentation by the United States Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement. The Software was developed fully at private expense.
9. CONFIDENTIALITY. Each party agrees: (i) to hold the other party’s Confidential Information in strict confidence; (ii) not to disclose such Confidential Information to any third parties, except as described below; and (iii) not to use any Confidential Information except for the purposes of this EULA. Each party may disclose the other party’s Confidential Information to its responsible employees and contractors with a bona fide need to know, but only to the extent necessary to carry out the purposes of this EULA, and only if such employees and contractors are subject to a nondisclosure agreement sufficient to protect the other party’s Confidential Information hereunder. The restrictions set forth in this section shall not apply to any Confidential Information that the receiving party can demonstrate: (a) was known to it prior to its disclosure by the disclosing party; (b) is or becomes publicly known through no wrongful act of the receiving party; (c) has been rightfully received from a third party authorized to make such disclosure without restriction; (d) is independently developed by the receiving party; (e) has been approved for release by the disclosing party’s prior written authorization; or (f) has been disclosed by court order or as otherwise required by law, provided that the party required to disclose the information provides prompt advance notice thereof, to the extent practicable, to enable the disclosing party to seek a protective order or otherwise prevent such disclosure. The parties agree that a breach of this section may cause irreparable damage which money cannot satisfactorily remedy and therefore, the parties agree that in addition to any other remedies available at law or hereunder, the disclosing party shall be entitled to seek injunctive relief for any threatened or actual dis closure by the receiving party.
10.1 Independent Contractors. The parties are and at all times s hall be and remain independent contractors as to each other, and at no time shall either party be deemed to be the agent or employee of the other. No joint venture, partnership, agency, or other relationship shall be created or implied as a res ult of this EULA. Furthermore, neither party shall have the authority to, and shall not purport to, enter into any contract or commitment on behalf of the other party.
10.2 Governing Law. This EULA, and any and all actions arising from or in any manner affecting the interpretation of this EULA, shall be governed by, and construed solely in accordance with, the laws of the State of California, without giving effect to any conflicts of laws principles that would require the application of the laws of a different jurisdiction. The parties consent to the exclusive juris diction and venue of the federal and state courts located in Santa Clara County, California for any action permitted by this section, any challenge to this section or judgment upon the award entered. The United Nations Convention on Contracts for the International Sale of Goods and Uniform Computer Information Transactions Act (UCITA), or any similar federal laws or regulations enacted, to the extent allowed by law shall not apply to this EULA.
10.3 Equitable Relief. Licensee acknowledges that CipherCloud would suffer immediate and irreparable harm for which monetary damages would be an inadequate remedy if Licensee were to breach its obligations under Sections 2.2 (Restrictions) or 2.3 (Owners hip). Licensee therefore expressly agrees that CipherCloud s hall be entitled to obtain equitable relief, including injunctive relief, from any court having juris diction, in order to protect rights and interests in connection with Section 2 of this EULA or in connection with any license restriction contained herein. Such remedy s hall be in addition to such other remedies as may be available at law or in equity.
10.4 Evaluation. Notwithstanding anything to the contrary herein, if Licensee is using the Software for evaluation purposes then such use may be subject to CipherCloud’s then current evaluation terms and conditions or other mutually agreed upon terms to govern such evaluation. In the absence of such separate terms and conditions, this EULA shall govern Licensee’s use of the Software.
10.5 Notices. All notices permitted or required by this EULA s hall be in writing and shall be delivered by personal delivery, national express courier with a tracking system, or by certified or registered mail, return receipt requested, and s hall be deemed given, respectively, on the date of personal delivery, five (5) days after deposit in the mail, or on the date of delivery by courier. Notices shall be addressed to “Legal” and sent to the addresses set forth in the Ordering Document(s). Either party may amend its address for notice upon written notice to the other.
10.6 Waivers; Amendment. No waiver of any terms or conditions of this EULA s hall be valid or binding on a party unless such party makes the waiver in hardcopy writing signed by an authorized representative of that party. The failure of one party to enforce any of the provisions of this EULA, or the failure to require at any time the performance of the other party of any of the provisions of this EULA, s hall in no way be cons trued to be a present or future waiver of such provisions, nor in any way affect the ability of a party to enforce each and every provision thereafter. This EULA may not be altered, amended, modified, or otherwise changed in any way except by a hardcopy written instrument signed by the authorized representatives of each party.
10.7 Severability. If any provision of this EULA is found or held to be invalid or unenforceable by any tribunal of competent
jurisdiction, then the meaning of such provision s hall be construed, to the extent feasible, so as to render the provision enforceable, and if no feasible interpretation would save such provision, it shall be severed from the remainder of this EULA, which shall remain in full force and effect.
10.8 Assignment. Customer may not assign this Agreement (whether expressly, by implication, or b y operation of law, including in connection with any merger or sale of assets or business), or delegate its performance under this Agreement (either in whole or in part), to any third party without obtaining CipherCloud’s prior written consent. CipherCloud may assign this Agreement or any rights granted herein. Any purported transfer, assignment, or delegation in violation of this Section shall be null and void when attempted and of no force or effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the successors and permitted assigns of CipherCloud and Customer.
10.9 Entire Agreement. This EULA may be executed in counterparts. Each party represents and warrants that the person signing this EULA on such party’s behalf has been duly authorized and empowered to enter into this EULA. This EULA shall take precedence over any conflicting or inconsistent terms and conditions accompanying any document submitted by Licensee to CipherCloud. Any pre-printed or standard terms of any purchase order, confirmation, or similar form, unless signed by CipherCloud after the effectiveness hereof, s hall have no force or effect. Licensee’s installment or us e of the Software constitutes a binding commitment on Licensee for all related payments and is non-cancellable.
(Rev March 2021_LO)