EULA - Lumension
Contents
1. AND SERVICES ARE PROVIDED ON AN AS IS AND WITH ALL FAULTS AND THE RELATED SERVICES ON AN AS AVAILABLE BASIS LUMENSION EXPRESSLY DISCLAIMS ALL WARRANTIES REPRESENTATIONS AND CONDITIONS OF ANY KIND WHETHER EXPRESS OR IMPLIED INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES REPRESENTATIONS AND CONDITIONS OF MERCHANTABILITY FITNESS FOR A PARTICULAR PURPOSE AND NON INFRINGEMENT b LUMENSION MAKES NO WARRANTY EITHER EXPRESS OR IMPLIED THAT i THE SOFTWARE WILL MEET YOUR REQUIREMENTS ii THE SERVICES RELATED TO THE SOFTWARE WILL BE UNINTERRUPTED TIMELY SECURE OR ERROR FREE iii THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SOFTWARE WILL BE ACCURATE OR RELIABLE iv THE QUALITY OF ANY PRODUCTS SERVICES INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SOFTWARE WILL MEET YOUR EXPECTATIONS OR v ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED c ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SOFTWARE EVEN IF OBTAINED FROM LUMENSION IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL d NO ADVICE OR INFORMATION WHETHER ORAL OR WRITTEN OBTAINED BY YOU FROM LUMENSION OR THROUGH OR FROM THE SOFTWARE SHALL CREATE ANY WARRANTY To the extent any warranties may arise by operation of law Lumension disclaims all warranties of any kind if2. h Lumension IT Secured Success Optimized END USER LICENSE AGREEMENT LICENSE OR EULA COVERING LUMENSION APPLICATION INSPECTOR THIS SOFTWARE PRODUCT IS PROVIDED AS IS AND WITHOUT WARRANTY IMPORTANT READ CAREFULLY Note This EULA applies to all purchase orders and agreements executed between Lumension Security and its resellers distributors end users customers and or any party that uses sells distributes Lumension Application Inspector software utility including its derivative and successor products and related Documentation and Services collectively the Software Unless explicitly stated otherwise any new features that augment or enhance the Software including the release of new versions of the Software are subject to this EULA unless Lumension expressly agrees otherwise in writing This License is a legal agreement between You and Lumension for the Software referenced above If You do not agree to the terms of this License promptly return the unused Software to the place from which You obtained it Except as may be expressly modified by a separate signed license agreement Your rights and obligations with respect to the Use of the Software are as follows 1 DEFINITIONS Client Software means a software product that runs on a Node Cloud Service means the secure hosted location controlled by Lumension which stores the master hash library repository Documentation
3. Node based on information received from the Client Software Third Party Patch Content means the third party software content including updates drivers and other patches that Lumension consolidates organizes and makes accessible to You through Your Use of the Software Use means the loading utilization storage or display of the Product by You or one of Your authorized users 2 LICENSES AND RESTRICTIONS 2 1 License Grant Lumension hereby grants to You free of charge to You a non exclusive royalty free License to the Software without right of sublicense except as set forth in Section 8 1 below that permits You to install and Use the object code version of the Software for Your internal business purposes relating to analysis of Your software and computer systems for the duration of the Subscription Term You may Use solely with the Software any third party products or modules supplied by Lumension for use with the Software Your license is also subject to the Product Use Rights associated with the Software see Attachment 1 hereto This license is non transferable except as set forth below 2 2 Subscription Term Your Subscription Term for the Software shall be for one 1 month from the date You first install the Software The Subscription Term will automatically renew thereafter on a month to month basis unless either a You notify Lumension in writing of non renewal b Lumension notifies you via email of non
4. TELLECTUAL PROPERTY RIGHTS Lumension represents that the Product including methods processes or techniques utilized therein is owned by proprietary to and constitutes valuable a trade secret of Lumension and its licensors and is protected by United States copyright law foreign laws and international treaties You agree to take no actions that impair or infringe Lumension s intellectual property rights in the Product You agree not to remove efface or obscure any copyright notices other proprietary markings or confidentiality legends placed upon or contained within the Product In addition You agree that Lumension owns all right title Lumension Coverage Tool Utility EULA and PUR rev 29 October 2010 v 1 0 Page 3 of 9 and interest in and to any enhancements or improvements to the Product developed independently by Lumension or in concert with other parties whether prior to or after the date of this EULA For purposes of this EULA intellectual property rights include all patents copyrights trade secrets trade dress trademarks know how and show how whether or not legal protection has been sought or granted 6 DISCLAIMER OF WARRANTIES LIABILITY LIMITATIONS 6 1 Disclaimer of Warranties Representations and Conditions You expressly understand and agree that a YOUR USE OF THE SOFTWARE IS AT YOUR SOLE RISK THE SOFTWARE IS PROVIDED AT NO COST TO YOU ACCORDINGLY THE SOFTWARE AND ALL RELATED DOCUMENTATION SUPPORT MAINTENANCE
5. are s object code on any computer screen for any purposes or to make any memory dumps of the Software s object code You shall not cause or permit the disassembly reverse compilation or other decoding of the Software or otherwise attempt to obtain derive or modify the source code or architecture of the Software If notwithstanding the foregoing applicable law grants You the right to decompile the Software to the extent necessary to obtain information to achieve interoperability with an independently created computer program You may exercise such right if Lumension shall fail upon Your prior written request to provide the relevant interoperability information within a reasonable amount of time Any such decompilation or disassembly is subject to Lumension s existing intellectual property rights including without limitation Lumension s copyrights You agree to notify Lumension in writing of any such decompilation or disassembly within ten 10 business days of such decompilation or disassembly You agree to cooperate with requests by Lumension to verify that any decompilation or disassembly made by You was absolutely necessary and for a legitimate purpose Lumension Coverage Tool Utility EULA and PUR rev 29 October 2010 v 1 0 Page 2 of 9 2 5 Performance and Usage Information The Software is configured to automatically report back information including without limitation anonymized computer environment information installed software i
6. eractions with other software You acknowledge that bugs may arise or crashes may occur when the Software is used in your particular hardware or in conjunction with other software You therefore accept the responsibility of satisfying yourself that the Software is suitable for use on your hardware and with your other software This includes reasonable testing of the Software on your hardware prior to any mission critical use of your hardware You acknowledge that You have read the User s Manual for the Software prior to installing the Software and agreeing to this Agreement Lumension has taken commercially reasonable precautions to ensure that the Software operates functionally and without harm to other systems However this is a beta demo product and full testing has not been completed As a result significant errors including without limitation system incompatibility and system security compromises may occur Use the Software at your own risk You agree that you must evaluate and bear all risks associated with the use of the Software In addition and without limiting any of the foregoing under no circumstances will Lumension be liable in any way for the Software or any use of the Software including but not limited to for any errors or omissions in any content or for any loss or damage of any kind incurred as a result of the use of or reliance upon the Software or any content posted transmitted or otherwise made available via the Softwa
7. f the FAR or in the case of NASA in Clause 18 52 227 86 d of the NASA Supplement to the FAR 8 8 Export Controls You shall not export ship transmit or re export the Product or Documentation to any country for which a license is required under the export control laws of the United States and the administrative regulations issued thereunder without first obtaining the required license You shall not Use the Product or Third Party Patch Content or allow the transfer transmission export or re export of any portion thereof in violation of any export control laws or regulations administered by the U S Commerce Department Office of Foreign Assets Control or any other government agency 8 9 Relationship of the Parties Nothing contained in this License shall be construed as creating any agency partnership or other form of joint enterprise between the parties The relationship between the parties shall at all times be that of independent contractors Neither party shall have authority to contract for or bind the other in any manner whatsoever Lumension Coverage Tool Utility EULA and PUR rev 29 October 2010 v 1 0 Page 7 of 9 Attachment 1 Product Use Rights h Lumension IT Secured Success Optimized PRODUCT USE RIGHTS LUMENSION APPLICATION INSPECTOR This document states the terms and conditions upon which Lumension Security Inc Lumension or the Company allows the user You to use its Application In
8. ghts not expressly granted to You The Software is owned by Lumension and is protected by European Union United States and international intellectual property including copyright laws including without limitation the Luxembourg law dated March 29 1972 concerning copyright You may not remove any copyright patent or other proprietary rights notices from any copy of the Software or any copy of the written materials if any accompanying the Software 3 Updates Upgrades Supplements or Corrections Lumension is under no obligation to provide any updates upgrades supplements or corrections to the Software collectively Updates Lumension is under no obligation to provide technical support bug fixes replacements or conversions of the Software or to otherwise maintain the Software In the event that Lumension does provide to You one or more Updates this Agreement shall apply to such Updates unless Lumension provides other terms along with such Update 4 Persons Obligated This document is binding on You as well as your employees employers contractors and agents and your successors and assigns to the extent assignment is permitted by this document Lumension Coverage Tool Utility EULA and PUR rev 29 October 2010 v 1 0 Page 8 of 9 5 One Archival Copy You may make one 1 archival copy of the machine readable portion of the Software for backup purposes only provided that You reproduce on the copy all copyright pa
9. ld responsible for any delay or failure in performance of its obligations hereunder to the extent such delay or failure is caused by fire flood strike civil governmental or military authority acts of God acts of terrorism acts of war or other similar causes beyond its reasonable control and without the fault or negligence of the delayed or non performing party or its agents Lumension Coverage Tool Utility EULA and PUR rev 29 October 2010 v 1 0 Page 6 of 9 8 5 Waiver Severability The failure of either party in any one or more instances to enforce any of the terms of this License shall not be construed as a waiver of future enforcement of that or any other term If any provision of this License shall for any reason be held illegal or unenforceable in whole or in part the parties shall endeavor in good faith to agree to such amendments that will preserve as far as possible the intentions expressed in this License If the parties fail to agree on such an amendment such invalid term condition or provision will be severed from the remaining terms conditions and provisions which will continue to be valid and enforceable to the fullest extent permitted by law 8 6 Governing Law Statute of Limitations The validity and performance of this License shall be governed by and construed in accordance with the laws of the U S State of Arizona excluding that body of law applicable to choice of law and excluding the United Nations Convention
10. material obligation required under this License Lumension may in addition to all other remedies available at law or in equity terminate this License upon written notice to You Lumension Coverage Tool Utility EULA and PUR rev 29 October 2010 v 1 0 Page 5 of 9 7 2 Effect of Termination In the event this License expires or is terminated for any reason You shall immediately discontinue Use of and promptly and in any event within seven 7 days return to Lumension or certify the destruction of the relevant Product and Documentation including all copies thereof In addition any and all Maintenance Services provided by Lumension shall also immediately terminate Sections 2 4 2 5 4 5 6 7 and 8 and all provisions regarding the protection of Lumension s intellectual property rights shall survive any termination of this License 8 GENERAL PROVISIONS 8 1 Assignment Lumension s rights and duties under this License are fully assignable This License may not be assigned by You without the prior written consent of Lumension and any attempt to do so without permission shall be void provided however You may assign and transfer Your complete rights and obligations hereunder without the consent of Lumension to any corporation that is Your wholly owned subsidiary or parent or that survives a merger in which You participate or to any corporation or other person or business entity that acquires all or substantially all of Your assets p
11. means all end user written materials relating to the operation use and installation of the Software or updates thereto including but not limited to user manuals release notes program specifications and online help files regarding use of the Software Error means a deviation between the Software and the Documentation that causes the Software to fail to conform with the stated functionality Maintenance means i Product updates upgrades Error fixes and other enhancements that Lumension from time to time may make available to its end users and ii Standard Support for certain Lumension Products not the Software provided by Lumension during normal support hours Node means an individual computer workstation terminal server or other system on Your computer network Nodes can be computers or various other network appliances such as routers switches and hubs Product means for the purposes of this EULA only the Software The Product consists of Client Software components and Server Software components the functions of which are described more fully in the Documentation The term Product as used in this License does not mean Third Party Patch Content Server means a physical or virtual computer system that provides services to Nodes Lumension Coverage Tool Utility EULA and PUR rev 29 October 2010 v 1 0 Page 1 of 9 Server Software means a software product that provides services to each licensed
12. nformation executable file information and information about Your Software configuration settings arising in connection with use of the Software without notice to you This data is sent to us to help diagnose performance issues with and improve the Software as well as to enhance Your Use of the Software The Software may also report back anonymous information about Your Use of its features which is used for legitimate business purposes including to determine which Software features are most popular and useful to its users and demographics about your location State or Country operating system versions used etc All such information reported back by the Software shall be anonymous to ensure that your identity and or ownership of Software cannot be determined by analysis of the data stored by the Cloud Service 3 DELIVERY AND SUPPORT 3 1 Delivery Support In order to Use the Software You must obtain from Lumension by providing Lumension with information required by it the password and information necessary in order to download the Software from Lumension s website Lumension may at its sole option provide You with Maintenance and or Support for the Software 3 2 End User Responsibilities You will be responsible for ensuring i that the Product is Used with an operating system and computing environment consistent with current specifications set forth in the Documentation ii that the Product is properly installed and configured iii
13. on Contracts for the International Sale of Goods if applicable Any legal action or proceeding relating to this License shall be instituted in a state or federal court in Maricopa County Arizona USA Lumension and You agree to submit to the exclusive jurisdiction of and agree that venue is proper in these courts in any such action or proceeding The prevailing party in any action to enforce this License will be entitled to recover its reasonable attorney s fees and costs in connection with such action You agree that regardless of any statute or law to the contrary any claim or cause of action arising out of or related to Use of the Software or related to this EULA must be filed within one 1 year after such claim or cause of action arose or be forever barred 8 7 Government End User If You are acquiring the Product or Services on behalf of any unit or agency of the United States Government then on behalf of the government You agree that i if supplied to a unit of the Department of Defense DOD the Product and Services are classified as Commercial Computer Software and the Government is acquiring only restricted rights as that term is defined in Clause 252 227 7013 c 1 7014 a 1 of the DFARS and ii if supplied to any unit or agency of the United States Government other than DOD the Government s rights in the Product and Services will be restricted to the extent allowed by law and as stated and defined in Clause 52 227 19 c 2 o
14. re Lumension accepis no responsibility or liability for any undesirable results of your use of the Software whatsoever 6 3 Limitation of Liability YOU EXPRESSLY UNDERSTAND AND AGREE THAT LUMENSION SHALL NOT BE LIABLE FOR ANY DIRECT INDIRECT INCIDENTAL SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS GOODWILL USE DATA OR OTHER INTANGIBLE LOSSES EVEN IF LUMENSION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES RESULTING FROM i THE USE OR THE INABILITY TO USE THE SOFTWARE OR RELATED SERVICES ii THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY SOFTWARE GOODS DATA INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SOFTWARE OR RELATED SERVICES iii UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA iv STATEMENTS OR CONDUCT OF ANY THIRD PARTY THROUGH THE SOFTWARE OR ON THE RELATED SERVICE OR v ANY OTHER MATTER RELATING TO THE SOFTWARE OR RELATED DOCUMENTATION SUPPORT MAINTENANCE OR SERVICES 6 4 Exclusions and Limitations SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES REPRESENTATIONS AND CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES ACCORDINGLY SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU 7 TERMINATION 7 1 Termination of License by Lumension If You default in performing any
15. renewal or c Lumension commences charging its customers for the Software as set forth on its website www lumension com in either case at least fifteen 15 days prior to the end of the Subscription Term in any of which events Your Subscription shall expire at the end of the current Subscription Term Notwithstanding any provision in this EULA to the contrary Your Subscription Term automatically shall terminate in the event Your license terminates pursuant to the terms of this EULA 2 3 Service Provider Use of the Product You may not Use the Software to provide patch or security management including device and application control or processing services to third parties or otherwise on a service bureau basis except to the extent Lumension has expressly agreed via a written service provider license for the Software 2 4 Limitations You shall not Use copy modify display rent lease loan transfer distribute download merge make any translation or derivative work or otherwise deal with the Software except as expressly provided in this License You acknowledge that the Software contains trade secrets and other proprietary information of Lumension You may not decompile disassemble or otherwise reverse engineer the Software or engage in any other activities to obtain underlying information that is not visible to the user in connection with normal use of the Software In particular You agree not to transmit the Software or display the Softw
16. rovided that 1 the assignee executes an undertaking to Lumension to comply in full with Your obligations hereunder 2 You retain no copies of and transfer to assignee all of the Product including all component parts the media and related Documentation any upgrades and this License and 3 such transfer does not violate export laws or regulations 8 2 Entire Agreement This License together with the attached Product Use Rights constitutes the entire license agreement between the parties with respect to the subject matter hereof and all prior agreements representations and statements with respect to such subject matter are superseded hereby and in the event that there is a conflict between the terms and conditions of this License and those of the attached Product Use Rights Agreement the terms and conditions of this License shall prevail The terms of this License may not be altered modified amended changed rescinded or discharged in whole or in part except by written agreement executed by duly authorized parties of You and Lumension No pre printed terms or provisions of any purchase order acknowledgement or other business form that You may use in connection with the acquisition or licensing of the Software will have any effect whatsoever including without limitation any effect on the rights duties or obligations of the parties or otherwise modify this License regardless of any failure of Lumension to object to such terms provision
17. s or conditions 8 3 Notices You agree to provide Lumension with a primary business contact email address to prompily provide Lumension with any changes to this email address and to accept emails or other electronic communications from Lumension at this email address You further agree that Lumension may provide any and all routine notices statements and other communications to You through this email address and in connection with such routine purposes notice shall be considered to have been given upon sender s printed confirmation of successful transmission by email Notwithstanding the foregoing any notice by either party related to any material provision of this EULA including but not limited to breach or termination of any Product license or Services must be sent by either i registered mail return receipt requested ii traceable commercial carrier iii confirmed facsimile or iv confirmed email meaning that the recipient must reply to confirm receipt of the notice email If addressed to Lumension notice shall be addressed to Lumension Security Inc 15880 North Greenway Hayden Loop Suite 100 Scottsdale Arizona 85260 Attn General Counsel email address legal lumension com and if to You a notice shall be forwarded to the address in Lumension s records relating to You Attn Legal Department Notices shall be effective when confirmed if required or otherwise when delivered 8 4 Force Majeure Neither party shall be he
18. spector software utility including its derivative and successor products and related Documentation and Services collectively the Software The Software is licensed not sold to You on a nonexclusive basis for use only under the terms of this document and Lumension s End User License Agreement Covering Lumension Application Inspector the EULA into which this document is hereby incorporated by reference Lumension may provide You an electronic file the license key This license key defines the Software the environment and the number of seats that are granted to You Except as otherwise provided in this document or the EULA this Software is licensed solely for use by You for your own internal purposes in partially managing allowable executables and or controlling access to I O devices on workstations servers or terminal servers as defined in the license key 1 User Documentation Covered Under These Use Rights Documentation covering these Product Use Rights shall include Lumension Application Inspector 2 Intellectual Property You own any disk s or other media on which the Software may be recorded or fixed but as between You and Lumension Lumension retains all title to and ownership of the Software including without limitation all copies thereof and all rights to patents copyrights trademarks trade secrets and other intellectual property rights inherent therein and or appurtenant thereto and reserves all ri
19. tent and other proprietary rights notices included on the originals of the Software Such archival copy shall be used by You solely in support of your use of the Software 6 Prohibition Against Merger or Integration You may not merge any portion of the Software into or integrate any portion of the Software with any other program 7 U S Government Restricted Rights The Software and related documentation are commercial computer software developed exclusively at private expense and are provided with restricted rights Use duplication or disclosure by the U S Government except the U S Department of Defense is subject to restrictions as set forth in 48 CFR 52 227 19 as amended or any successor regulations Use duplication or disclosure by the U S Department of Defense is subject to the terms of this Agreement as stated in DFARS 227 7202 Lumension Coverage Tool Utility EULA and PUR rev 29 October 2010 v 1 0 Page 9 of 9
20. the Software was altered or repackaged in any way by any party other than Lumension Lumension shall not be liable for the accuracy of any information provided by third party technical support personnel or any damages caused either directly or indirectly by acts taken or omissions made by You or any third party as a result of such technical support 6 2 Assumption of Risks Your Responsibilities You assume full responsibility for the selection of the Software to achieve your intended results and for the installation use and results obtained from the Software You also assume the entire risk as it applies to the quality and performance of the Software including without limitation that the risk that a buffer overflow attack could circumvent the protection that the Software is designed to provide Should the Software prove defective You and not Lumension assume the entire cost of all necessary servicing repair or correction In addition and without limiting the foregoing in Using the Software You will need to set up your PatchLink server to face the Internet Lumension assumes no responsibility and you remain solely responsible for server hardening and configuration as a result of setting up systems to utilize this tool Lumension Coverage Tool Utility EULA and PUR rev 29 October 2010 v 1 0 Page 4 of 9 The Software is complex computer software Performance of the Software may vary depending upon hardware configuration and int
21. the proper installation of any integrating programs as well as all data communication links iv the establishment of adequate back up and disaster recovery plans and v the establishment and maintenance of physical and network security systems Furthermore Lumension is not responsible for and You are solely responsible for any amounts You may be charged whether by your mobile communications carrier or any other third party for data or phone use or transfer as a result of Your Use of the Software or for any overruns You may experience with regard to Your phone or data plan with such carrier or other third party 4 PAYMENTS AND TAXES 4 1 Fees Suspension of Access for Nonpayment Lumension reserves the right to suspend Your access to Lumension s Product or services hosted on Lumension servers while any fee you owe to Lumension under any license or agreement is past due and remains unpaid however Lumension agrees that it will not exercise this access suspension remedy unless Lumension has previously provided You with three 3 e mail past due notices over a thirty 30 day period following the payment due date Lumension will not be liable to You or any third parties due to exercise of this right while Your payment remains past due 4 2 Taxes You shall pay all personal property sales use value added withholding and similar taxes other than taxes on Lumension s net income arising from the transactions described in this License 5 IN
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