EVENTTRACKER SECURITY LLC END USER SOFTWARE LICENSE AGREEMENT NOTICE - THIS END USER LICENSE AGREEMENT (“EULA” OR “AGREEMENT”) IS A LEGAL DOCUMENT BETWEEN EVENTTRACKER SECURITY LLC. (“EVENTTRACKER” OR “LICENSOR’) AND THE LEGAL ENTITY THAT ACQUIRED THE EVENTTRACKER SOFTWARE FOR USE BY AN END USER (“YOU”, “YOUR”, “CUSTOMER” AND “LICENSEE”). READ THIS BEFORE INSTALLING, USING OR OTHERWISE ACCESSING EVENTTRACKER’S PROPRIETARY SOFTWARE, INCLUDING SOFTWARE AS A SERVICE, TRIAL OR EVALUATION AND ACCOMPANYING DOCUMENTATION (the “SOFTWARE”). THE SOFTWARE IS COPYRIGHTED AND IS LICENSED, NOT SOLD, TO YOU BY EVENTTRACKER. BY CLICKING ON THE “ACCEPT” (OR EQUIVALENT) BUTTON OR SIGNING BELOW, OPENING THE PACKAGE, DOWNLOADING, INSTALLING, USING OR OTHERWISE ACCESSING THE SOFTWARE, INDICATES THAT YOU HAVE READ, UNDERSTAND, ACCEPT, AGREE TO BE BOUND BY THE TERMS AND CONDITIONS, AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THE LEGAL ENTITY. IF AT ANY TIME YOU DO NOT ACCEPT THESE TERMS, YOU MUST IMMEDIATELY DELETE THE SOFTWARE AND CEASE USING OR ACCESSING THE SOFTWARE.
- License Grant
Subject to the terms of this Agreement, including payment of applicable fees, you have a non-exclusive and nontransferable right to use the Software for non-commercial (e.g. not for resale or rental or the like) or evaluation purposes, and only for the permitted number of servers, network devices or workstations as designated in the applicable Statement of Work (SOW), Work Order or Purchase Order (Hereinafter “Order”) and for the term designated in the applicable Order between EventTracker and Customer or between Customer and authorized EventTracker partners. All Orders shall incorporate this agreement by reference. The term Software shall include any updates, additions or modifications to the Software. In connection with the License, EventTracker also grants to Customer the right to use, print, and copy the accompanying on-line read-me and help files regarding the use and customization of the Software as reasonably necessary to make use of the Software in accordance with the License.
- Scope of Use
Your license is conditioned on the proper use of the Software. Any use of the Software in violation of permitted uses is in breach of this Agreement and is unlicensed. As designated in the applicable Order, Customer’s use of the Software shall not exceed the permitted number of servers, network devices or workstations. Customer may move the Software at any time to different servers, network devices or workstations so long as Customer completely removes the Software from the former servers, network devices or workstations, and the total number of computers or devices does not at any time exceed the permitted number of servers, network devices or workstations. Customer may only use Software: (i) for so long as Customer has fully paid, or remains current in the payment of applicable fees (if any, as in the case of an evaluation period); and (ii) for which Customer has received a license key (“License Key”). The Software is “in use” on a device when it is loaded into the temporary memory (i.e. RAM) or installed into the permanent memory (e.g. hard drive, CD-ROM or other storage device) of that device, except that a copy installed on a network server for the sole purpose of distribution to other devices is not “in use.”
- Access and Use
The Software is designed for use on-line in conjunction with your web browser and internet access. You are allowed only one account under this license, but you may access your EventTracker account on multiple computers.
- Evaluation License
In the event you obtained a trial or evaluation version of the Software, you will be awarded a license for the length of time as designated in the applicable order (“Trial Period”). You may use the Software for internal noncommercial purposes, solely to evaluate the suitability of the Software for your needs. Upon the expiration of the Trial Period, you must either purchase a license, or immediately cease using and/or accessing the Software and permanently delete the Software. If you do not purchase a license prior to the expiration of the Trial Period provisions of this Agreement, all rights and licenses shall terminate pursuant to Section 14.
- Consent to Use Data
You agree that EventTracker may collect and use technical data and related information, including but not limited to, technical information about your device, system and application software, and peripherals. EventTracker may use this information in a form that does not personally identify you, to operate, provide, improve, and develop the Software, and to prevent or investigate fraudulent or inappropriate use of the Software.
- Audit Rights
Customer will maintain accurate records of its use of the Software during the term of this Agreement. Customer grants to EventTracker, or its independent accountants and auditors, the right to examine its books, records, networks, systems, devices, and accounts during Customer’s normal business hours to verify compliance with the License. In the event such audit discloses that the permitted number of servers, network devices or workstations is exceeded, or that Customer is otherwise in breach of this Agreement, Customer shall promptly pay to EventTracker the appropriate License fee for the additional devices, plus the cost of the audit if the underpayment totals more than five percent (5%) of the total License fee actually owed. At EventTracker’s option, EventTracker may immediately terminate this Agreement for failure to pay the required License fee and/or any other breach of this Agreement.
- Third-Party Software/Open Source (“Open Source Software”)
The Software incorporates and uses third-party and open source software (“Open Source Software”). Customer acknowledges that its use of such Open Source Software is required for effective use of the Software and such use shall be governed by third-party’s license agreement. EventTracker is not responsible for any third-party’s software and shall have no liability for Customer’s use of such third-party software. Nothing in this Agreement limits Customer’s rights under, or grants Customer’s rights that supersede, the terms and conditions of any applicable Customer license for the Open Source Software. However, the disclaimer of warranty and limitation of damages provisions in this Agreement will apply to all Software in this distribution. If required by any license for Open Source Software, EventTracker makes such Open Source Software, and EventTracker’s modifications to that Open Source Software, available by written request at the notice address specified below.
- Intellectual Property Ownership
You agree that the Software belongs to EventTracker. You agree that you neither own nor acquire any claim or right of ownership to the Software or to any related patents, copyrights, trademarks or other intellectual property. EventTracker retains all right, title and interest in the Software at all times, regardless of the form or media in or on which the original or other copies may subsequently exist. This license is not a sale of the original or any subsequent copy of the Software. All content accessed through the Software is the property of the applicable content owner and may be protected by applicable copyright law. This license gives you no rights to such content.
Customer agrees that the Software, including the specific design and structure of individual programs, constitute trade secrets, intellectual property, and/or copyrighted material of EventTracker. Customer agrees not to disclose, provide or otherwise make available such trade secrets, intellectual property, proprietary rights, or copyrighted material in any form to any third-party without the prior written consent of EventTracker. Customer agrees to implement reasonable security measures to protect such trade secrets, intellectual property, proprietary rights, and copyrighted materials. Customer also may not release the results of any performance or functional evaluation of any program of the Software to any third-party without prior written approval of EventTracker for each such release. Customer may not use EventTracker’s name or other trademarks or refer to EventTracker or EventTracker’s products or services directly or indirectly in any papers, articles, advertisements, promotions, sales presentations, news releases or releases to any third-party without the prior written approval of EventTracker for each such use. EventTracker may identify Customer by name and associated logo as a client on EventTracker’s website and in other marketing materials and press releases.
- Maintenance and Support
EventTracker will not provide any maintenance or support services under this Agreement. You acknowledge that EventTracker has no express or implied obligation to release updates, modifications, or additions to the Software. EventTracker may offer support services which will be offered under the terms and conditions of the applicable Order.
- Software as a Service
When using Software that is hosted by EventTracker (“Service”)
- you agree: (1) to protect your account from all unauthorized account access, including appropriately safeguarding your password; (2) to be solely responsible for the management of all data accessed by you; and (3) that EventTracker is not liable for any damages relating to lost or damaged data;
- you agree not to: (1) use the Service in a way that violates any applicable laws or regulations; (2) distribute viruses or other harmful or malicious computer code; (3) engage in any conduct that disrupts or impedes the Service; (4) engage in “screen scraping,” “database scraping,” “data mining” or any other activity with the purpose of obtaining lists of users or other information from the Service or that uses web “bots” or similar data gathering or extraction methods;
- EventTracker can suspend your access to the Service if, in its sole discretion, EventTracker believes: (1) there is risk to the security or privacy of your account; (2) there is a threat to the security or integrity of EventTracker’s network or the Service; and (3) suspension of Service is needed to protect the rights, property or safety of EventTracker, its users or the public or is required by law.
- Software Warranty
For ninety (90) days after the Effective Date (“Software Warranty Period”), EventTracker warrants that the Software, when used in accordance with the instructions provided with the Software, shall operate as described in all material aspects of its intended use. EventTracker does not warrant that Customer’s use of the Software will be error-free or uninterrupted. EventTracker, at its own expense and as its sole obligation and Customer’s exclusive remedy for any breach of this warranty, shall: (a) correct any reproducible error in the Software reported to EventTracker by Customer in writing during the Software Warranty Period; or (b) refund fees paid for the defective Software, if EventTracker determines that it is unable to correct the error or replace the Software, in which case this Agreement and Customer’s right to use the Software shall terminate.
EventTracker reserves the right to change the terms of service under this EULA from time to time at its sole discretion. Your use of EventTracker software will be subject to the most current terms of service available at the time of usage. Any changes will be posted at: http://www.eventtracker.com/eula.
- Term and Termination
This Agreement is effective upon your installing, accessing or using the Software. This Agreement shall continue in effect in accordance with the terms of the applicable Order. This license automatically terminates if you fail to comply with its terms and conditions. This Agreement and the license herein will terminate immediately without notice from EventTracker if Customer fails to comply with any provision of this Agreement or if Customer takes any action in derogation of the rights of EventTracker. EventTracker may terminate this Agreement should any Software become, or in EventTracker’s reasonable opinion is likely to become, the subject of a claim of intellectual property infringement or trade secret misappropriation. EventTracker may also terminate this Agreement upon its failure to receive from or on behalf of Customer, timely payment in full of all fees in the applicable Order.
- This Agreement and the license will terminate at the end of the Trial Period if obtained for evaluation purposes.
- Upon any termination of this Agreement, Customer will cease all use of, and destroy (or permanently erase), all copies of the Software. The following Sections of this Agreement shall survive termination: Audit Rights, Third Party/Open Source, Intellectual Property Ownership, Confidentiality, Term and Termination, Disclaimers, High Risk Use, Damages Limitation, Indemnity, Export Controls, U.S. Government Restricted Rights, Waiver, Cumulative Remedies, Severability, Applicable Law.
THE SOFTWARE IS NOT REPRESENTED AS BEING COMPLIANT WITH ANY FEDERAL OR STATE LAW AND LICENSOR ACCEPTS NO RESPONSIBILITY OR LIABILITY FOR THE MATERIAL BEING DEEMED INCONSISTENT WITH ANY STATUTE, RULE, REGULATION, OR ANY OTHER LEGAL GUIDANCE. NOTHING IN THE MATERIAL SHALL BE CONSTRUED AS A CERTIFICATION OR ACCREDITATION AS TO CYBER-SECURITY STANDARDS. THE LICENSOR EXPRESSLY DISCLAIMS ANY REPRESENTATIONS MADE BY THE LICENSEE AS TO THE SOFTWARE MEETING ANY FEDERAL REQUIREMENTS. THE EXPRESS WARRANTIES HEREIN ARE THE ONLY WARRANTIES APPLICABLE TO THE SOFTWARE. EVENTTRACKER AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SOFTWARE, HARDWARE AND SUPPORT SERVICES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE (INCLUDING TRIAL PERIOD), TRADE PRACTICE OR COURSE OF PERFORMANCE WHICH ARE HEREBY DISCLAIMED. EXCEPT FOR THE EXPRESS WARRANTIES STATED HEREIN, THE SOFTWARE, SUPPORT SERVICES AND HARDWARE ARE PROVIDED “AS IS” WITH ALL FAULTS AND DEFICIENCIES. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY EVENTTRACKER OR ITS AUTHORIZED REPRESENTATIVE(S) SHALL CREATE A WARRANTY.
- Services Provided Through Partner, Managed Service Provider or Reseller
If Customer acquired the Software through a Partner, Managed Service Provider or Reseller (“Partner/MSP/Reseller”), Customer acknowledges that: (i) payment and delivery terms for the Software must be established separately and independently between the Customer and the Partner/MSP/Reseller; (ii) this EULA constitutes the entire Agreement between the Customer and EventTracker regarding the rights and use of the Software as described above and is controlling; (iii) the terms and conditions of any Order or any other agreement between the Customer and the Partner/MSP/Reseller are not binding on EventTracker; (iv) the Partner/MSP/Reseller is not authorized to alter, amend or modify the terms of this EULA or to otherwise grant any license or other rights relating in any way to the Software. Customer further acknowledges that EventTracker makes no representation or warranty with regard to any services provided by any Partner/MSP/Reseller, or any actions or failures to act by any Reseller and accepts no liability whatsoever for services provided by Partner/MSP/Reseller.
- High Risk Us
CUSTOMER SHALL NOT USE THE SOFTWARE IN ANY APPLICATION OR SITUATION WHERE A SOFTWARE FAILURE COULD LEAD TO DEATH OR SERIOUS BODILY INJURY OF ANY PERSON, OR TO SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE (“HIGH RISK ACTIVITIES”). EVENTTRACKER AND ITS LICENSORS SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES, AND EVENTTRACKER AND ITS LICENSORS SHALL HAVE NO LIABILITY OF ANY NATURE AS A RESULT OF ANY SUCH USE OF THE SOFTWARE.
- Damages Limitation
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL EVENTTRACKER, ITS AUTHORIZED DISTRIBUTORS, OR ITS SUPPLIERS BE LIABLE FOR ANY LOST REVENUE, PROFIT, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR DATA, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF EVENTTRACKER, ITS AUTHORIZED DISTRIBUTORS, OR ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE LIABILITY OF EVENTTRACKER, ITS AUTHORIZED DISTRIBUTORS, OR ITS SUPPLIERS, TO CUSTOMER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE LICENSE FEE ACTUALLY PAID BY CUSTOMER TO EVENTTRACKER. IF THE LICENSE IS BEING USED FOR EVALUATION OR LABORATORY PURPOSES, IN NO EVENT SHALL EVENTTTRACKER HAVE ANY LIABILITY WHATSOEVER TO THE CUSTOMER. THESE LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED WARRANTY FAILS OF ITS ESSENTIAL PURPOSE.
You agree to indemnify and hold EventTracker and its affiliates, officers, agents, employees, co-branders or other partners, harmless from any claim or demand, including reasonable attorney’s fees, made by any third-party due to or arising out of the use of EventTracker software, your violation of this EULA or your violation of any rights of another person or entity.
- Export Controls
All Software, Documentation, documents, technical data, and any other materials delivered under this Agreement are subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Customer agrees to comply strictly with all such laws and regulations and acknowledges that it has the responsibility to obtain licenses to export, re-export, or import as may be required after delivery to Customer. The Software and the underlying information and technology may not be downloaded or otherwise exported or reexported (i) into (or to a national or resident of) North Korea, Iran, Syria or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading or using the Software, you are agreeing to the foregoing and you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
- U.S. Government Restricted Rights
The Licensed Application and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. If the Software is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractors or subcontractor (at any tier), then the Government’s rights in the Software and Documentation will be only as set forth in this Agreement.
- Force Majeure
EventTracker shall not be liable for any delay or omission in the performance of any obligation under this EULA, where the delay or omission is due to any cause or condition which is beyond its reasonable control, including, but not limited to, strikes or other formal or informal labor disputes or claims, acts of God, acts of government, war, terrorist acts, riots, embargoes, communication failures or inability to obtain supplies.
The waiver by EventTracker of a breach or default in any of the provisions of this EULA shall not be construed as a waiver of any subsequent breach of the same or other provisions; nor shall any delay or omission on the part of either you or EventTracker serve to eliminate or excuse or avail itself of any right, power or privilege that it has or may have hereunder, or operate as a waiver of any breach or default.
- Section Headings
The section headings in this EULA are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or intent of any such section, nor in any way affect this EULA.
- Cumulative Remedies
Except as otherwise provided herein, the remedies provided under this EULA are cumulative and shall not exclude any other remedies to which you or EventTracker may be fully entitled.
- Entire Agreement and Severability
This Agreement constitutes the entire agreement. No modification or waiver of this Agreement shall be binding unless it is in writing and signed by both parties. To the extent that any law, statute, treaty or regulation by its terms, as determined by a court, tribunal, arbiter or other governmental authority of competent jurisdiction, conflicts with the terms of this EULA, the conflicting terms shall be superseded only to the extent necessary by the terms required of such law, statute, treaty or regulation. If any provision of this EULA shall otherwise be unlawful, void or for any reason unenforceable, then that provision shall be enforced to the maximum extent permissible so as to affect the intent of EventTracker under this EULA. In either case, the remainder of this EULA shall continue in full force. This Agreement supersedes any and all prior agreements between Licensor and Licensee regarding Licensee’s right to use the Software.
- Applicable Law
This license will be governed by the laws of the State of Maryland, without reference to conflicts of laws principles. The United Nations Convention on Contracts for the Sale of Goods does not apply to this license.
If you have any questions, you may contact:
EventTracker Security LLC.
8815 Centre Park Drive Columbia MD 21045
Phone: (410) 953-6776 Fax: (410) 953-6780
Copyright 2019 EventTracker Security LLC. All Rights Reserved. Software License Agreement. Revised 2019.