END USER LICENSE AGREEMENT
IMPORTANT NOTICE: This End User License Agreement (“Agreement”) is a binding legal contract between you (either an individual or a legal entity) (“you”) and Invary (“Invary”). By downloading, installing, accessing, or using the accompanying Software (as defined below), you will be bound by the terms of this Agreement. If you do not agree to the terms of this Agreement, Invary is not willing to grant you any right to use or access the Software. In such event, you may not download, install, access, use, or copy the Software. You represent that you are lawfully able to enter into contracts and are of the legal age of majority in the jurisdiction in which you reside. In addition, if this agreement is being agreed to by a company or other legal entity, then the person agreeing to this agreement on behalf of that company or entity represents and warrants that he or she is authorized and lawfully able to bind that company or entity to this agreement. You should print and retain a copy of this agreement for your records.
- Grant of License. During the term of this Agreement, Invary grants you a revocable, perpetual, non-transferable, non-sublicensable, personal, nonexclusive license to use the object code version of the software, any updates or bug fixes (“Software”), and any accompanying documentation for your internal use only solely in connection with the Invary Runtime Integrity Service (the “Services”). The Software is licensed, not sold. Except for the limited license granted above, Invary and its licensors retain all right, title, and interest in the Software, all copies thereof, and all proprietary rights in the Software, including copyrights, patents, trademarks, and trade secret rights.
- Restrictions. The license granted to you in this Agreement is restricted as follows:.
a) Limitations on Copying and Distribution. You may not copy or distribute the Software except to the extent that copying is necessary to use the Software for purposes setforth herein.
b) Limitations on Reverse Engineering and Modification. Except to the extent expressly permitted by applicable law and only after consultation with Invary, you may not reverse engineer, decompile, disassemble, modify, or create works derivative of the Software.
c) Sublicense, Rental, and Third Party Use. You may not assign, sublicense, rent, timeshare, loan, lease, or otherwise transfer the Software, or directly or indirectly permit any third party to use or copy the Software.
d) Proprietary Notices. You may not remove any proprietary notices (e.g., copyright and trademark notices) from the Software or any accompanying documentation. You must reproduce the copyright and all other proprietary notices displayed on the Software and documentation on each permitted backup or archival copy.
e) Use in Accordance with Documentation. All use of the Software shall be in accordance with its then-current documentation.
f) Compliance with Applicable Law. You will be solely responsible for ensuring your use of the Software is in compliance with all applicable foreign, federal, state, and local laws, rules, and regulations.
- Third Party Software. To the extent any software licensed from third parties, including open source software, (collectively, “Third Party Software”) is provided with or incorporated into the Software, you will comply with the terms and conditions of the applicable third party licenses associated with the Third Party Software, in addition to the terms and restrictions contained in this Agreement. All relevant licenses for the Third Party Software are available upon request. Your use of the Software shall be deemed your acceptance of the third party licenses. Invary shall use reasonable efforts to support the Third Party Software to the same extent as the Software. INVARY MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD PARTY SOFTWARE. ALL THIRD PARTY SOFTWARE IS PROVIDED “AS-IS,” WITHOUT WARRANTIES OF ANY KIND. IN NO EVENT WILL INVARY BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE THIRD PARTY SOFTWARE, EVEN IF INVARY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
- Term and Termination. Unless provided otherwise in an accompanying order document, this Agreement will commence on the earlier of the date you first download, install, access, or use the Software (the “Effective Date”) and continue in effect until it is terminated by either party, at any time, upon written notice to the other party or by deleting the Software (the “Term”). Upon termination of this Agreement, the license granted in Section 1 will automatically terminate and you will have no further right to possess or use the Software.
- Services. The Software uses your data and that of others for the benefit of all customers, to help you and others protect themselves against suspicious and potentially destructive activities. The Software and Services are designed to detect, prevent, respond to, and determine system integrity by collecting and analyzing Service Data, which includes machine event data, executed scripts, code, system files, log files, dll files, login data, binary files, tasks, resource information, commands, protocol identifiers, URLs, network data, and/or other executable code and metadata. You, rather than Invary, determine which types of data, whether personal data or not, exist on its systems. Accordingly, your endpoint environment is unique in configurations and naming conventions, and the machine event data could potentially include personal data. Invary uses the data to: (a) analyze, characterize, attribute, warn of, and/or respond to threats against you and other customers, (b) analyze trends and performance, (c) improve the functionality of, and develop, Invary’s products and services, and enhance cybersecurity; and (d) permit you to leverage other applications that use the data, but for all of the foregoing, in a way that does not identify you or your personal data to other customers.
- Limited Warranty; Disclaimer. All Software and Services are provided to you as a beta product and provided “AS IS” without warranty of any kind and will not create any obligation for Invary to continue to develop, productize, support, repair, offer for sale, or in any other way continue to provide or develop any such feature, product, Software, or Service. You agree that your use is not contingent on the delivery of any future functionality or features, or dependent on any oral or written statements made by Invary regarding future functionality or features. YOU ACKNOWLEDGE, UNDERSTAND, AND AGREE THAT INVARY DOES NOT GUARANTEE OR WARRANT THAT IT WILL FIND, LOCATE, OR DISCOVER ANY OR ALL SYSTEM THREATS, VULNERABILITIES, MALWARE, AND MALICIOUS SOFTWARE, OR GUARANTEE A FINDING OF SYSTEM INTEGRITY AND YOU WILL NOT HOLD INVARY RESPONSIBLE THEREFOR. EXCEPT AS PROVIDED IN THIS SECTION, THE SOFTWARE AND SERVICES ARE PROVIDED ON AN “AS AVAILABLE,” “AS IS” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, INVARY AND ITS SUPPLIERS AND VENDORS DISCLAIM ALL OTHER WARRANTIES WITH RESPECT TO THE SOFTWARE, SERVICES, AND OTHER SERVICES HEREUNDER, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, QUIET ENJOYMENT, QUALITY OF INFORMATION, AND FITNESS FOR A PARTICULAR PURPOSE. INVARY DOES NOT WARRANT THAT THE SOFTWARE, SERVICES, OR OTHER SERVICES HEREUNDER WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY INVARY OR ANY OF ITS PERSONNEL OR AGENTS SHALL CREATE ANY ADDITIONAL INVARY WARRANTIES OR IN ANY WAY INCREASE THE SCOPE OF INVARY’S OBLIGATIONS HEREUNDER. YOU AGREE THAT IT IS YOUR RESPONSIBILITY TO ENSURE SAFE INSTALLATION AND USE OF THE SOFTWARE AND SERVICES.
- Your Warranty. You represents and warrants that: (a) you own or have a right of use from all third parties, and control, directly or indirectly, all of the software, hardware and computer systems (collectively, “Systems”) where the Software may be installed or that will be the subject of, or investigated as part of the Services, (b) to the extent required under any federal, state, or local U.S. or non-US laws (e.g., Computer Fraud and Abuse Act, 18 U.S.C. § 1030 et seq., Title III, 18 U.S.C. 2510 et seq., and the Electronic Communications Privacy Act, 18 U.S.C. § 2701 et seq.) you have authorized Invary to access the Systems and process and transmit data via or as part of the Services in accordance with this Agreement and as necessary to provide and perform the Services, (c) you have a lawful basis in having Invary investigate the Systems, process your data, including any personal data; (d) that you are and will at all relevant times remain duly and effectively authorized to instruct Invary to carry out the Services, and (e) you have made all necessary disclosures, obtained all necessary consents and government authorizations required under applicable law to permit the processing and international transfer of your data and any personal data from you to Invary.
- Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT FOR INFRINGEMENT OR MISAPPROPRIATION BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, NEITHER PARTY IN NO EVENT SHALL INVARY OR ITS LICENSORS, SUPPLIERS, AND VENDORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, DIRECT, OR INDIRECT DAMAGES, WHICH SHALL INCLUDE, WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURY, LOST PROFITS, LOST DATA, AND BUSINESS INTERRUPTION, ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE OR ANY SERVICES OR OTHER SERVICES, EVEN IF INVARY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, THE ENTIRE AGGREGATE LIABILITY OF INVARY AND ITS LICENSORS, SUPPLIERS, AND VENDORS UNDER THIS AGREEMENT FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) SHALL BE LIMITED TO FEES PAID BY YOU, IF ANY, DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY.
- Confidentiality. The parties agree to hold each other’s Confidential Information in strict confidence and not to make each other’s Confidential Information available in any form to any third party (other than their authorized agents) or to use each other’s Confidential Information for any purpose other than as specified in this Agreement. Each party agrees to take all reasonable steps to ensure that Confidential Information of the other party is not disclosed or distributed by its employees, agents, or consultants in violation of the provisions of this Agreement. “Confidential Information” shall mean, with respect to a party hereto, all information or material which (a) gives that party some competitive business advantage or the opportunity of obtaining such advantage or the disclosure of which could be detrimental to the interests of that party; or (b) from all the relevant circumstances should reasonably be assumed to be confidential. Invary’s Confidential Information includes, but is not limited to, the Software and all related documentation. Each party’s Confidential Information shall remain the sole and exclusive property of that party. Neither party shall have any obligation with respect to confidential information which: (m) is or becomes generally known to the public by any means other than a breach of the obligations of a receiving party; (n) was previously known to the receiving party or rightly received by the receiving party from a third party; or (o) is independently developed by the receiving party. Confidential Information does not include: (y) machine-generated data, such as metadata derived from tasks, file execution, commands, resources, network telemetry, executable binary files, macros, scripts, and processes, or (z) any malware, spyware, virus, worm, Trojan horse, or other potentially malicious or harmful code or files, URLs, DNS data, network telemetry, commands, processes or techniques, metadata, or other information or data, in each case that is potentially related to unauthorized third parties associated therewith, that for each of (y) and (z): (i) you provide to Invary in connection with this Agreement, or (ii) is collected or discovered while using the Software, excluding any such information or data that identifies you or to the extent it includes personal data (collectively “Service Data”). You may not use any Confidential Information or data disclosed by Invary in connection with this Agreement to contest the validity of any Invary intellectual property, including the Software. Any such use of Invary’s Confidential Information and data shall constitute a material, non-curable breach of this Agreement.
- Feedback. You may provide suggestions, comments, or other feedback (collectively, “Feedback”) to Invary with respect to its products and services, including the Software. Feedback is voluntary, and Invary is not required to hold it in confidence. Invary may use Feedback for any purpose without obligation of any kind. To the extent a license is required under your intellectual property rights to make use of the Feedback, you grant Invary an irrevocable, non-exclusive, perpetual, worldwide, royalty-free license to use the Feedback in connection with Invary’s business, including enhancement of the Software, and the provision of products and services to Invary’s customers.
- Governing Law. This Agreement is governed by and construed in accordance with the laws of the State of Kansas, as applied to agreements entered into and wholly performed within the State of Kansas between Kansas residents. Any action or proceeding brought by either party hereto shall be brought only in a state or federal court of competent jurisdiction located in the City of Lawrence, County of Douglas, Kansas, and the parties submit to the in personam jurisdiction of such courts for purposes of any action or proceeding.
- General. This Agreement constitutes the entire understanding and agreement between the parties with respect to the transactions contemplated in this Agreement and supersedes all prior or contemporaneous oral or written communications with respect to the subject matter of this Agreement, all of which are merged in this Agreement. This Agreement shall not be modified, amended, or in any way altered except by an instrument in writing signed by authorized representatives of both parties. If any provision of this Agreement is found invalid or unenforceable pursuant to judicial decree, the remainder of this Agreement shall remain valid and enforceable according to its terms. Any failure by Invary to strictly enforce any provision of this Agreement will not operate as a waiver of that provision or any subsequent breach of that provision. The following provisions shall survive any termination or expiration of this Agreement: Sections 2 (Restrictions), 4 (Term and Termination), 8 (Limitation of Liability), 9 (Confidentiality), 10 (Feedback), 11 (Governing Law), 12 (General), and 14 (U.S. Government Rights). Invary may assign any of its rights or obligations hereunder as it deems appropriate. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IF ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH HEREIN SHALL REMAIN IN EFFECT.
- Export. You may not export, directly or indirectly, the Software to any country for which the United States requires any export license or other governmental approval without first obtaining such license or approval. It shall be your responsibility to comply with such export laws, rules and regulations. You will defend, indemnify, and hold harmless Invary from and against any and all damages, fines, penalties, assessments, liabilities, costs and expenses (including attorneys’ fees and expenses) arising out of any claim the Software was exported or otherwise shipped or transported in violation of applicable laws, rules and regulations.
- U.S. Government Rights. The Software is commercial computer software as described in DFARS 252.227-7014(a)(1) and FAR 2.101. If acquired by or on behalf of any the Department of Defense or any component thereof, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in DFARS 227.7202-3, Rights in Commercial Computer Software or Commercial Computer Software Documentation. If acquired by or on behalf of any civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in FAR 12.212, Computer Software.