FireScope Workbench 3.1.0

EULA - End User License Agreement

END USER LICENSE AGREEMENT ("EULA") READ CAREFULLY: This is EULA is a legal agreement between you and FireScope, Inc. ("FSI"), Delaware corporation having offices at 412 Olive Avenue, Suite 603, Huntington Beach, California 92648. This EULA covers your permitted download, installation and use of the Software (defined below). By clicking on the "accept" button, opening the package, downloading the Software, you are consenting to be bound by this EULA and agree to comply with its terms and conditions. If you do not agree to all of the terms and conditions of this EULA, click the "do not accept" button and the installation process will not continue. 1. DEFINITIONS. As used in this EULA, "Computer" means the hardware, if the hardware is a single computer system whether physical or virtual, or shall mean the computer system with which the hardware operates, if the hardware is a computer system component. "FREE SOFTWARE" means any Software designated by FSI as free. "FSI Software" means any FSI proprietary network security software products provided by FSI, any third party proprietary software, and any patches, updates, Improvements, additions and other modifications or revised versions that may be provided by FSI or its licensors from time to time, excluding any and all Open Source Programs. "Open Source Program" means the open source code software programs that are provided to you for use with the FSI Software. "Software" means collectively the FSI Software and the Open Source Program. "Documentation" means FSI' then current on-line help, guides, and manuals published by FSI and made generally available by FSI for the Software in hard copy or machine readable form supplied by FSI to you that describes the functionality of the Software licensed hereunder. "Services" shall mean all services provided by FSI under this EULA, including any applicable Maintenance and Support Services. "FSI Materials" shall mean any tangible or intangible materials provided to you by FSI in the course of performing Services other than Maintenance Services under this EULA. 2. YOUR PAYMENT OBLIGATIONS. If the Software is designated as FREE, you have no payment obligations, if the Software is not designated as FREE, you agree to pay all amounts due, including any late payment fees, as are specified in an invoice provided by FSI or its designated reseller (the "Reseller"). If any authority imposes a duty, tax or similar levy (other than taxes based on FSI' or its Reseller's income), you agree to pay, or to promptly reimburse FSI or its Reseller, as applicable, for all such amounts. You are also responsible for paying all shipping charges. Unless otherwise indicated in an invoice, all invoices are payable thirty (30) days from the date of invoice. Overdue amounts are subject to a late payment Interest charge, at the lower rate of (i) one percent (1%) per month, or (ii) the maximum legal rate. You agree to promptly pay or reimburse FSI or its Reseller, as applicable, for all costs and expenses, including all reasonable attorneys' fees, related to any breach of your obligations under this EULA. 3. GRANT OF SOFTWARE LICENSE FSI hereby grants to you a non-exclusive, non-transferable personal license to use the Software and any for your internal operations subject to the following terms: a) For each registered serial number and Software license key that you are delivered (or if you have downloaded the DataNow or Workbench software products), you may: (i) use the Software on any single Computer; and (ii) copy the Software for back-up and archival purposes, provided any copy must contain all of the original Software's proprietary notices within the United States and its territories or any other country to which this program can legally be exported. b) The Software is "in use" on a computer when it is loaded into temporary memory or installed in permanent memory (Hard Drive, CD-ROM or other storage device). You agree to use your best efforts to prevent and protect the contents of the Software and Documentation from unauthorized use or disclosure. You agree that you will register this Software and its Serial Number only with FSI and that you will only install a Software License Key obtained directly from FSI. You may not redistribute, bundle, or package any Software downloaded or obtained from FSI without the prior written consent of FSI. You may not use any Software downloaded or obtained from FSI in the production of a commercial computer software or hardware product without the prior written consent of FSI. You shall own the magnetic or other physical media upon which the FSI Software is originally or subsequently recorded or fixed, but FSI or FSI licensors retain all title, copyright and other intellectual proprietary rights in, and ownership of, the FSI Software regardless of the media upon which the original or any copy may be recorded or fixed. 4. OPEN SOURCE TERMS. You acknowledge that each Open Source Program is distributed under the Open Source Program license applicable to such Open Source Program, and only such license, and this EULA in no ways supplements or detracts from any term or conditions of such open source license agreement (the "Open Source License"). Notwithstanding anything to the contrary in this EULA, you agree and acknowledge that the rights attached to any Open Source Programs provided hereunder are separate from and do not depend on the Open Source Programs being part of, or used in connection with, the Software. 5. SCOPE OF USE. FSI strictly prohibits the use of the Software to sell or provide services to users who are not individually licensed by FSI except as described herein. - If you represent a Web Hosting company (also referred to as Managed Service Providers, Internet Service Providers, or xSPs), you may use the Software to test and report the applications, servers and equipment you use to provide hosting services to your customers; - If you operate a Data Center or provide Infrastructure Services, you may use the Software to test and report applications, servers and equipment whether such Resources are owned by you or your customers; - If you are an IT Consultant, IT Solution Provider, or Facilities Management Provider, who deploy or maintain networks, security solutions, communications solutions, hardware, software components, upgrades, etc, you are required to individually license each of your customers. Your use of the Software may not exceed the applicable use restrictions associated with the license fees paid or payable by you under this EULA. The scope of use of any Open Source License shall be governed by the applicable open source license agreement. 6. NO REVERSE ENGINEERING, OTHER RESTRICTIONS. Except to the extent allowed under the applicable Open Source License, you shall not directly or indirectly: (i) sell, lease, redistribute or transfer any of the Software; (ii) modify, translate, reverse engineer (except to the limited extent permitted by law), decompile, disassemble, create derivative works based on, sublicense, or distribute any of the Software; (iii) rent or lease any rights in any of the Software in any form to any person; (iv) use any Software for the benefit of any third parties (e.g., in an ASP, outsourcing or service bureau relationship) or in any way other than in its intended manner; (v) remove, alter or obscure any proprietary or copyright notice, labels, or marks on the Software; or (vi) disable or circumvent any access control or related security measure, process or procedure established with respect to the Software or any other part thereof. You are responsible for all use of the Software and for compliance with this EULA; any breach by you or any user shall be deemed to have been made by you. 8. INTELLECTUAL PROPERTY. Unless otherwise expressly stated herein, this EULA does not transfer to you any title or any ownership right or interest in the Software or in any other intellectual property rights of FSI . You acknowledge that the Software is owned by FSI and Its licensors, and that the Software contains, embodies and is based upon patented or patentable inventions, trade secrets, copyrights and other intellectual property rights owned by FSI and its licensors. Any rights in Software not granted herein are expressly reserved by FSI or its licensors. 7. MAINTENANCE AND SUPPORT SERVICES. Maintenance and Support Services may be purchased and provided to you under the terms and conditions set forth in the current FSI Maintenance and Support Services Policy posted on FSI website at http://support.firescope.com. FSI will provide all other Services, subject to availability, in accordance with FSI' standard Services schedule(s) in effect at the time such Services are ordered. You agree that either a purchase order or a Statement of Work detailing such Services executed by both parties and referencing this EULA shall be sufficient to authorize purchase of Services under this EULA. 8. CONFIDENTIALITY. As used herein, "Confidential Information" means any non-public technical or business Information of FSI (or its licensors), including without limitation, any information, relating to FSI techniques, algorithms, software, know-how, current and future products and services, research, engineering, designs, financial information, procurement requirements, manufacturing, customer lists, business forecasts, marketing plans and information, the terms and conditions of this EULA, and any other information of FSI (or its licensors) that is disclosed to you. You will take all reasonable measures to maintain the confidentiality of FSI' Confidential Information, but in no event less than the measures you use to protect your own confidential information. You will limit the disclosure of FSI' Confidential Information to your employees with a bona fide need to access such Confidential Information in order to exercise your rights and obligations under this EULA; provided that all such employees are bound by a written non-disclosure agreement that contains restrictions at least as protective as those set forth herein. You agree that FSI will suffer irreparable harm in the event that you breach any obligations under this Section and that monetary damages will be inadequate to compensate FSI for such breach. In the event of a breach or threatened breach of any of the provisions of this Section, FSI, in addition to and not in limitation of any other rights, remedies or damages available to it at law or in equity, shall be entitled to a temporary restraining order, preliminary injunction and/or permanent injunction in order to prevent or to restrain any such breach. 9. WARRANTIES The following warranties apply to the Software unless it is FREE SOFTWARE: 9.1 SOFTWARE WARRANTY. FSI warrants that, for a period of one (1) year from the date the Software is made available to you for download or delivered on a fixed media (the "Software Warranty Period"), the unmodified Software will substantially perform in all material respects the functions described in its Documentation when operated in accordance with the Documentation FSI' sole obligation and liability, and your sole and exclusive remedy shall be for FSI to use commercially reasonable efforts to remedy the problem, or to replace the defective product, provided that FSI is notified in writing of all warranty problems during the applicable warranty period. If FSI is unable to make the affected Software operate as warranted within a reasonable time considering the severity of the error and its impact on you, you will be entitled to recover the license fees paid by you. 9.2 ANTI-VIRUS WARRANTY. FSI warrants that to the best of its knowledge after employing reasonable technical means to detect computer viruses, the programs as provided by FSI do not contain any virus or computer software code, routines or devices designed to disable, damage, impair, or erase the programs or other software or data. If this warranty is breached, your sole and exclusive remedy and FSI' sole liability shall be to, at FSI' expense, immediately replace all copies of the affected programs in your possession. Limited media warranty. 9.3 LIMITED SERVICES WARRANTY. FSI warrants for ninety (90) days from the performance of any Services by FSI hereunder that such Services will be performed (i) in a professional and workmanlike manner and (ii) substantially in accordance with the relevant Statement of Work or the agreed-upon Requirements Document applicable to such Services, if applicable. Notwithstanding the foregoing, FSI Materials are distributed "AS IS." You must report in writing any breach of the Services Warranty to FSI during the warranty period. Your sole and exclusive remedy and FSI' entire liability for such a breach shall be the reperformance of the Services; provided, however, that if FSI is unable to perform the non-conforming Services as warranted, then you shall be entitled to recover the fees paid to FSI for such nonconforming Services. 9.4 MEDIA WARRANTY. FSI warrants for ninety (90) days from the date of receipt that the media upon which FSI delivers the programs will be free of defects in materials and workmanship under normal use. If this warranty is breached, your sole and exclusive remedy and FSI' sole liability shall be to replace the media. 9.5 DISCLAIMER. EXCEPT AS EXPRESSLY WARRANTED IN THIS SECTION OF THIS AGREEMENT, THE SOFTWARE, DOCUMENTATION, MATERIALS, DATA OR SERVICES PROVIDED BY FSI ARE PROVIDED "AS IS" AND "WITH ALL FAULTS", AND FSI EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF OPERABILITY, CONDITION, TITLE, NON-INFRINGEMENT, NON-INTERFERENCE, QUIET ENJOYMENT, VALUE, ACCURACY OF DATA, OR QUALITY, AS WELL AS ANY WARRANTIES OF MERCHANTABILITY, SYSTEM INTEGRATION, WORKMANSHIP, SUITABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT. No warranty is made by FSI on the basis of trade usage, course of dealing or course of trade. FSI does not warrant that the software or any other information, materials, documentation or technology provided under this agreement will meet your requirements or that the operation thereof will be uninterrupted or error-free, or that all errors will be corrected. You acknowledge that FSI' obligations under this agreement are for your benefit only. Notwithstanding anything to the contrary in this agreement, all open source programs are provided "AS IS" without any warranty whatsoever. 10. LIMITATION OF LIABILITY. IN NO EVENT WILL FSI' AGGREGATE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT, OR THE USE OF THE SOFTWARE, EXCEED THE AMOUNT OF FEES YOU PAID TO FSI OR ITS RESELLER FOR THE SOFTWARE THAT GIVES RISE TO SUCH LIABILITY. UNLESS OTHERWISE EXPRESSLY STATED HEREUNDER, UNDER NO CIRCUMSTANCES SHALL FSI OR ANY OF ITS SUPPLIERS OR LICENSORS BE LIABLE FOR ANY OF THE FOLLOWING: (I) THIRD PARTY CLAIMS; (II) LOSS OR DAMAGE TO ANY SYSTEMS, RECORDS OR DATA, OR LIABILITIES RELATED TO A VIOLATION OF AN INDIVIDUAL'S PRIVACY RIGHTS; OR (III) INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR COVER DAMAGES (INCLUDING LOST PROFITS AND LOST SAVINGS), IN EACH CASE EVEN IF FSI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU ARE SOLELY RESPONSIBLE AND LIABLE FOR VERIFYING THE SECURITY, ACCURACY AND ADEQUACY OF ANY OUTPUT FROM THE SOFTWARE, AND FOR ANY RELIANCE THEREON. 11. INTELLECTUAL PROPERTY INFRINGEMENT. If a third party makes a claim against you that the FSI Software or FSI Materials directly infringe any patent, copyright, trade secret or trademark ("IP Claim"); FSI will defend you against the IP Claim and pay all costs, damages and expenses (including reasonable legal fees) finally awarded against you by a court of competent jurisdiction or agreed to in a written settlement agreement signed by FSI arising out of such IP Claim; provided that: (i) you promptly notify FSI in writing no later than sixty (60) days after your receipt of notification of a potential claim; (ii) FSI may assume sole control of the defense of such claim and all related settlement negotiations; and (iii) you provide FSI, at FSI' request and expense, with the assistance, information and authority necessary to perform FSI' obligations under this Section. Notwithstanding the foregoing, FSI shall have no liability for any claim of infringement based on (a) the use of a superseded release of FSI Software or superseded version of FSI Materials if the infringement would have been avoided by the use of a current release of the Programs or current version of the FSI Materials which FSI provided to you, (b) the modification of FSI Software or FSI Material, or (c) the use of the FSI Software or FSI Materials other than in accordance with the Documentation and this EULA, (c) IP Claims regarding the use of FREE SOFTWARE. If, due to an IP Claim or the threat of an IP Claim, (i) the FSI Software or FSI Materials are held, or in FSI' reasonable judgment may be held to infringe, or (ii) you are enjoined from using the FSI Software or FSI Materials, or in FSI' reasonable judgment you may receive such an order, FSI shall in its reasonable judgment, and at its expense, (a) replace or modify the affected FSI Software or FSI Materials to be non-infringing; (b) obtain for you a license to continue using the affected FSI Software or FSI Materials; or (c) if FSI cannot reasonably obtain the remedies in (a) or (b), terminate the license for the infringing FSI Software or FSI Materials and refund the license fees paid for the FSI Software or FSI Materials upon return by you. This Section states FSI' entire liability and your exclusive remedy for any claim of infringement. 12. DATA RIGHTS. You should be aware that the Software contains functions for collecting information related to your use of the Software. FSI may also collect and track non-personally identifiable information about you including but not limited to your IP address, the type of hardware you use and the type of browser you employ. FSI reserves the right to compile, save, use within the scope of FSI' activities, and analyze any and all of your data (registration data, and use history). FSI intends to use such data for internal purposes only, including without limitation for the purposes of responding to your requests for information and for contacting you. FSI may provide aggregated statistics about your use of the Software to third parties, but such information will be aggregated so that it does not identify a particular individual or company. 13. LEGAL COMPLIANCE; RESTRICTED RIGHTS. You shall be responsible for, and agree to comply with, all applicable laws, statutes, ordinances, regulations and other types of government authority (including without limitation the laws and regulations governing export control, unfair competition, anti discrimination, false advertising, privacy and data protection, and publicity) ("Laws"). Without limiting the foregoing, you agree to comply with all U.S. export Laws and applicable export Laws of your locality (if you are not in the United States), and you further agree not to export any Software or other materials provided by FSI without first obtaining all required authorizations or licenses. The Software and Documentation are "commercial computer software" and "commercial computer software documentation", and pursuant to FAR 12.212 or DFARS 227.7202, and their successors, as applicable, use, reproduction and disclosure of the Software and the Documentation are governed by the terms of this EULA. 14. GOVERNING LAW. This EULA shall be governed in all respects by the laws of the State of California, USA, without regard to choice-of-law rules or principles. You expressly agree with FSI that this EULA shall not be governed by the U.N. Convention on Contracts for the International Sale of Goods. 15. NOTICES. Any notices under this EULA to FSI will be personally delivered or sent by certified or registered mail, return receipt requested, or by nationally recognized overnight express courier, to the address specified herein or such other address as FSI may specify in writing. Such notices will be effective upon receipt, which may be shown by confirmation of delivery. 15. ASSIGNMENT. You may not assign or otherwise transfer this EULA without FSI' prior written consent. Notwithstanding the foregoing, either party may assign this EULA without the consent of the other party if a majority of its outstanding voting capital stock is sold to a third party, or if it sells all or substantially all of its assets or if there is otherwise a change of control. This EULA shall be binding upon and inure to the benefit of the parties' successors and permitted assigns. 16. GENERAL. This EULA is the parties' complete agreement regarding its subject matter, superseding any prior oral or written communications. Under no circumstances will the terms of any purchase order issued by you control or otherwise negate the terms set forth in this EULA. Amendments or changes to this EULA must be in mutually executed writings to be effective. If any provision of this Agreement is held to be unenforceable, that shall not affect the enforceability of the remaining provisions The parties are independent contractors for all purposes under this EULA.