Internet Security Systems, Inc. Software License Agreement
THIS SOFTWARE IS LICENSED, NOT SOLD. BY INSTALLING THIS SOFTWARE, YOU AGREE TO ALL OF THE PROVISIONS OF THIS SOFTWARE LICENSE AGREEMENT (“LICENSE”). IF YOU ARE NOT WILLING TO BE BOUND BY THIS LICENSE, RETURN ALL COPIES OF THE SOFTWARE AND LICENSE KEYS TO ISS WITHIN FIFTEEN (15) DAYS OF RECEIPT FOR A FULL REFUND OF ANY PAID LICENSE FEE. IF THE SOFTWARE WAS OBTAINED BY DOWNLOAD, YOU MAY CERTIFY DESTRUCTION OF ALL COPIES AND LICENSE KEYS IN LIEU OF RETURN.
1.License - Upon payment of the applicable fees, Internet Security Systems, Inc. (“ISS”) grants to you as the only end user (“Licensee”) a nonexclusive and nontransferable, limited license for the accompanying ISS software product in machine-readable form and the related documentation (“Software”) for use only on the specific network configuration, for the number of devices, and for the time period (“Term”) that are specified in Licensee’s purchase order, as accepted by ISS, and the invoice and license key furnished by ISS. ISS limits use of Software based upon the number and type of devices upon which it may be installed, used, gather data from, or report on, depending upon the specific Software licensed. A device includes any network addressable device connected to Licensee’s network, including remotely, including but not limited to personal computers, workstations, servers, routers, hubs and printers. Licensee may reproduce, install and use the Software on multiple devices, provided that the total number and type are authorized in Licensee’s purchase order, as accepted by ISS, and the invoice and license key furnished by ISS. Licensee may make a reasonable number of backup copies of the Software solely for archival and disaster recovery purposes.
2.Covenants - ISS reserves all intellectual property rights in the Software. Licensee agrees: (a) the Software is owned by ISS and/or its licensors, is a valuable trade secret of ISS, and is protected by copyright laws and international treaty provisions; (b) to take all reasonable precautions to protect the Software from unauthorized access, disclosure, copying or use; (c) not to modify, adapt, translate, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of the Software; (d) not to use ISS trademarks; (e) to reproduce all of ISS’ and its licensors’ copyright notices on any copies of the Software; and
(f)not to transfer, lease, assign, sublicense, or distribute the Software or make it available for timesharing, service bureau, or on-line use.
3.Support and Maintenance - During the term for which Licensee has paid the applicable support and maintenance fees, ISS will, upon request, provide software maintenance and support services that it makes generally available under its then current Maintenance and Support Policy. Support and maintenance include telephone support and electronic delivery to Licensee of error corrections and updates to the Software (but NOT new releases or products that substantially increase functionality and are marketed separately) and documentation as described in ISS’ then current Maintenance & Support Policy.
4.Limited Warranty - The commencement date of this limited warranty is the date on which ISS furnishes to Licensee the license key for the Software. For a period of ninety (90) days after the commencement date or for the Term (whichever is less), ISS warrants that the Licensed Software will conform to material operational specifications described in its then current documentation. However, this limited warranty shall not apply unless (i) the Software is installed, implemented, and operated in accordance with all written instructions and documentation supplied by ISS, (ii) Licensee notifies ISS in writing of any nonconformity within the warranty period, and (iii) Licensee has promptly and properly installed all corrections, new versions, and updates made available by ISS to Licensee. Furthermore, this limited warranty shall not apply to nonconformities arising from any of the following: (i) misuse of the Software, (ii) modification of the Software,
(iii)failure by Licensee to utilize compatible computer and networking hardware and software, or (iv) interaction with software or firmware not provided by ISS. If Licensee timely notifies ISS in writing of any such nonconformity, then ISS shall repair or replace the Software or, if ISS determines that repair or replacement is impractical, ISS may terminate the applicable licenses and refund the applicable license fees, as the sole and exclusive remedies of Licensee for such nonconformity. THIS WARRANTY GIVES LICENSEE SPECIFIC LEGAL RIGHTS, AND LICENSEE MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM
JURISDICTION TO JURISDICTION. ISS DOES NOT WARRANT THAT THE SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL SOFTWARE ERRORS WILL BE CORRECTED. LICENSEE UNDERSTANDS AND AGREES THAT LICENSED SOFTWARE IS NO GUARANTEE AGAINST INTRUSIONS, VIRUSES, TROJAN HORSES, WORMS, TIME BOMBS, CANCELBOTS OR OTHER SIMILAR HARMFUL OR DELETERIOUS PROGRAMMING ROUTINES AFFECTING LICENSEE’S NETWORK, OR THAT ALL SECURITY THREATS AND VULNERABILITIES WILL BE DETECTED OR THAT THE PERFORMANCE OF THE LICENSED SOFTWARE WILL RENDER LICENSEE’S SYSTEMS INVULNERABLE TO SECURITY BREACHES. THE REMEDIES SET OUT IN THIS SECTION 4 ARE THE SOLE AND EXCLUSIVE REMEDIES FOR BREACH OF THIS LIMITED WARRANTY.
5.Warranty Disclaimer - EXCEPT FOR THE LIMITED WARRANTY PROVIDED ABOVE, THE SOFTWARE IS PROVIDED “AS IS” AND ISS HEREBY
DISCLAIMS ALL WARRANTIES, BOTH EXPRESS AND IMPLIED, INCLUDING IMPLIED WARRANTIES RESPECTING MERCHANTABILITY, TITLE, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. SOME JURISDICTIONS DO NOT ALLOW DISCLAIMERS OF IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO LICENSEE. LICENSEE EXPRESSLY ACKNOWLEDGES THAT NO REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS LICENSE HAVE BEEN MADE REGARDING THE GOODS OR SERVICES TO BE PROVIDED HEREUNDER, AND THAT LICENSEE HAS NOT RELIED ON ANY REPRESENTATION NOT EXPRESSLY SET OUT IN THIS LICENSE.
6.Proprietary Rights - ISS represents and warrants that ISS has the authority to license the rights to the Software that are granted herein. ISS shall defend and indemnify Licensee from any final award of costs and damages against Licensee for any actions based on infringement of any U.S. copyright, trade secret, or patent as a result of the use or distribution of a current, unmodified version of the Software; but only if ISS is promptly notified in writing of any such suit or claim, and only if Licensee permits ISS to defend, compromise, or settle same, and only if Licensee provides all available information and reasonable assistance. The foregoing is the exclusive remedy of Licensee and states the entire liability of ISS with respect to claims of infringement or misappropriation relating to the Software.
7.Limitation of Liability - Licensee acknowledges that some of the Software is designed to test the security of computer networks and may disclose or create problems in the operation of the systems tested. Licensee accepts the risk of such possibility and hereby waives all rights, remedies, and causes of action against ISS and releases ISS from all liabilities arising therefrom. ISS’ ENTIRE LIABILITY FOR MONETARY DAMAGES ARISING OUT OF THIS LICENSE
SHALL BE LIMITED TO THE AMOUNT OF THE LICENSE FEES ACTUALLY PAID BY LICENSEE UNDER THIS LICENSE, PRORATED OVER A THREE- YEAR TERM FROM THE DATE LICENSEE RECEIVED THE SOFTWARE. IN NO EVENT SHALL ISS BE LIABLE TO LICENSEE UNDER ANY THEORY INCLUDING CONTRACT AND TORT (INCLUDING NEGLIGENCE AND STRICT PRODUCTS LIABILITY) FOR ANY SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, DAMAGES FOR LOST PROFITS, LOSS OF DATA, LOSS OF USE, OR COMPUTER HARDWARE MALFUNCTION, EVEN IF ISS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.Termination - Licensee may terminate this License at any time by notifying ISS in writing. All rights granted under this License will terminate immediately, without prior written notice from ISS, at the end of the term of the license, if not perpetual. If Licensee fails to comply with any provisions of this License, ISS may immediately terminate this License if such default has not been cured within ten (10) days following written notice of default to Licensee. Upon termination or expiration of the License, Licensee shall cease all use of the Software and destroy all copies of the Software and associated documentation. Termination of this License shall not relieve Licensee of its obligation to pay all fees incurred prior to such termination and shall not limit either party from pursuing any other remedies available to it.
9.General Provisions - This License, together with the identification of the Software, pricing and payment terms stated in the applicable Licensee purchase order as accepted by ISS and ISS invoice and license key, constitute the entire agreement between the parties respecting its subject matter. Standard and other additional terms or conditions contained in any purchase order or similar document are hereby expressly rejected and shall have no force or effect. This License will be governed by the substantive laws of the State of Georgia, USA, excluding the application of its conflicts of law rules. This License will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If any part of this License is found void or unenforceable, it will not affect the validity of the balance of the License, which shall remain valid and enforceable according to its terms. This License may only be modified in writing signed by an authorized officer of ISS.
10.Notice to United States Government End Users - Licensee acknowledges that any Software furnished under this License is commercial computer software developed at private expense and is provided with RESTRICTED RIGHTS. Any use, modification, reproduction, display, release, duplication or disclosure of this commercial computer software by the United States Government or its agencies is subject to the terms, conditions and restrictions of this License in accordance with the United States Federal Acquisition Regulations at 48 C.F.R. Section 12.212 and Subsection 227.7202-3 or applicable subsequent regulations. Contractor/ manufacturer is Internet Security Systems, Inc., 6303 Barfield Road, Atlanta, GA 30328, USA.
11.Export and Import Controls; Use Restrictions - Licensee will not transfer, export, or reexport the Software, any related technology, or any direct product of either except in full compliance with the export controls administered by the United States and other countries and any applicable import and use restrictions. Licensee agrees that it will not export or reexport such items to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Denied Persons List or Entity List, or to any country to which the United States has embargoed goods, or for use with chemical or biological weapons, sensitive nuclear end-uses, or missiles. Licensee represents and warrants that it is not located in, under control of, or a national or resident of any such country or on any such list. Many ISS software products include encryption and export outside of the United States or Canada is strictly controlled by U.S. laws and regulations. Please contact ISS’ Customer Operations for export classification information relating to the Software (customer_ops@iss.net). Licensee understands that the foregoing obligations are U.S. legal requirements and agrees that they shall survive any term or termination of this License.
12.Authority - Because the Software is designed to test or monitor the security of computer network systems and may disclose or create problems in the operation of the systems tested, Licensee and the persons acting for Licensee represent and warrant that: (a) they are fully authorized by the Licensee and the owners of the computer network for which the Software is licensed to enter into this License and to obtain and operate the Software in order to test and monitor that computer network; (b) the Licensee and the owners of that computer network understand and accept the risks involved; and (c) the Licensee shall procure and use the Software in accordance with all applicable laws, regulations and rules.
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