End User License Agreement
Please read this legally binding End User License Agreement (“License Agreement”) between Salvador Technologies Ltd. (“ST”) and Licensee carefully. By selecting the accept option, breaking the seal on the software package, or installing, downloading, copying or otherwise using the Products, Licensee acknowledges that Licensee has read, understands, and agrees to be bound by the terms and conditions of this License Agreement, including without limitation the terms and conditions of documents and policies that are incorporated herein by reference.
If Licensee does not agree with the terms and conditions of this License Agreement, Licensee is not authorized to install or otherwise use the Products for any purpose whatsoever.
Where a reseller, service provider, consultant, contractor or other party downloads, installs, manages or otherwise uses the Products on Licensee’s behalf, such party will be deemed to be Licensee’s agent and (i) such party will be deemed to have accepted all of the terms and conditions of this License Agreement, and (ii) to the extent permitted by applicable law, Licensee shall be solely responsible for the acts or omissions of such party in relation to its management or use of the Products on Licensee’s behalf.
“Affiliates” means, with respect to each party, entities that control, are controlled by, or are under common control with such party. For the purposes of this definition, “control” means the beneficial ownership of more than fifty percent (50%) of the voting power or equity in an entity.
“Computer” means any device or computing environment that benefits from the Licensed Product (including without limitation, workstations, physical servers, virtual servers, personal computers, laptops, netbooks, tablets, smartphones, and environments connected to an email server, an internet proxy or a gateway device, or a database). The Licensed Product does not have to be physically installed on the computer environment to provide benefit, nor is there a requirement for the computing hardware to be owned by the Licensee. The term “Computer” as defined herein includes, without limitation, non-persistent deployments, electronic devices that are capable of retrieving data, and virtual machines.
“Documentation” means the formal Product documentation (whether electronic or printed) published by ST for each Product.
“Fee” means the fee payable for the Product and/or Maintenance subscription.
“Hardware” means a hardware product, together with any related components provided by ST (including but not limited to Cyber Recovery Unit (CRU) [insert description of the related hardware products]).
“Licensed Products” means all or each (as the context so allows) of those software program(s) accompanying or provided for use under the terms of this License Agreement, listed on the Order and/or that are installed on the Hardware provided to Licensee and/or installed on Licensee’s Computer in support for the Hardware, together with the Documentation and any of the Upgrades and Updates to those programs, but excluding any third party software as described in Section 9.
“Licensee” means the person or entity that has been granted license rights under this License Agreement, and “Licensee’s” means belonging to, pertaining to or engaged by Licensee, whether on a temporary basis or otherwise.
“Maintenance” means collectively Upgrades and/or Updates (where applicable to the Product) and standard technical support as further described in Section 4.
“Order” means the order confirmation or license certificate issued by ST that details the Product(s) licensed by Licensee and corresponding Product Term, License Entitlement and license credentials, and which forms part of this License Agreement.
“Outsourced Provider” means a third party to whom Licensee or Licensee’s Affiliates have outsourced their information technology functions.
“Partner” means a reseller, distributor or other independent third party from which Licensee validly obtains ST Products.
“Product” means the Licensed Product, media and/or Hardware, as applicable.
“Sanctions and Export Control Laws” means any law, regulation, statute, prohibition, or similar measure applicable to the Products and/or to either party relating to the adoption, application, implementation and enforcement of economic sanctions, export controls, trade embargoes or any other restrictive measures, including, but not limited to, those administered and enforced by the European Union, the United Kingdom, and the United States, or any other jurisdictions each of which shall be considered applicable to the Products.
“Server” means a Computer upon which the Licensed Product is installed and from which other Computers receive or retrieve data. If the data is solely generated by the Licensed Product, then the Computer is not considered a Server.
“Update” means an update to the library of rules and/or identities and/or other updates to the detection data or software (excluding Upgrades) made available to Licensee by ST at its sole discretion from time to time automatically or otherwise, but excluding any updates marketed and licensed by ST for a separate Fee.
“Upgrade” means any enhancement or improvement to the functionality of the Product, Product version or Product feature made available to Licensee by ST at its sole discretion from time to time automatically or otherwise, but excluding any software and/or upgrades marketed and licensed by ST for a separate Fee.
“User” means an employee, consultant or other individual who benefits from the Product licensed to Licensee.
2. INTELLECTUAL PROPERTY RIGHTS AND OWNERSHIP
The Products, including without limitation all know-how, concepts, logic and specifications, are proprietary to ST and its licensors and are protected throughout the world by copyright and other intellectual property rights. Licensee hereby agrees not to remove any product identification or notices of proprietary restrictions. Further, Licensee hereby acknowledges and agrees that the right, title and interest in the Products and in any modifications made by Licensee to the Products, as provided for below in this License Agreement, are the property of, and are retained by, ST and its licensors. No license, right or interest in ST’s logos or trademarks is granted to Licensee under this License Agreement. Licensed Products are licensed, not sold or given. Except as expressly stated in this License Agreement, no license or right is granted directly or by implication, inducement, estoppel, or otherwise.
3. RIGHTS AND RESTRICTIONS
3.1.1. This License Agreement is effective from the moment of acceptance as described in the first paragraph of this License Agreement and shall remain in force until the earlier of (i) expiry of the Product Term of all items licensed hereunder, or (ii) termination of this License Agreement in accordance with the terms and conditions herein.
3.1.2. Unless this License Agreement is terminated earlier, (i) the Product Term for fixed term subscription-based Licensed Products, Maintenance packages and support packages shall commence on the start date and end on the expiry date noted on the Order, and (ii) the Product Term for Products that are billed on an auto-renewing basis shall commence on the date of purchase and continue for the duration of the authorized payments (subject to any minimum subscription term that may be noted on the Order) (each the “Product Term”).
3.1.3. In consideration of the payment of the Fee by Licensee and receipt of the corresponding payment by ST, ST hereby grants to Licensee a non-exclusive, non-sublicensable, and non-transferable (except as otherwise provided in this License Agreement) right to use the Products for their respective Product Term subject to the terms and conditions contained within this License Agreement.
3.2. License Entitlement and Usage. The Products are licensed by User, Computer, Server or other applicable units. The Order specifies the number of applicable units that the Licensee has licensed for each Product (the “License Entitlement”). The Licensee’s actual usage and/or installations, including without limitation any usage or installations for failover purposes, may not exceed the License Entitlement at any time or under any circumstances. If Licensee wishes to increase its actual usage, Licensee must first purchase the corresponding additional License Entitlement.
3.3. Rights. Licensee is permitted to:
3.3.1. use the Products solely for Licensee’s and its Affiliates’ own internal information security purposes;
3.3.2. make a reasonable number of copies of the Licensed Products or any part thereof for backup or disaster recovery purposes provided that Licensee reproduces ST’s proprietary notices on any such backup copy of the Licensed Products. Such restriction shall not prevent Licensee from backing up or archiving Licensee’s data.
3.4. Restrictions. Licensee is not permitted to:
3.4.1. modify or translate the Products (i) except as necessary to configure the Licensed Products using the menus, filters, options and tools provided for such purposes and contained in the Product, and (ii) in relation to the Documentation, except as necessary to produce and adapt manuals and/or other documentation for Licensee’s internal business purposes;
3.4.2. reverse engineer, disassemble (including without limitation, removing the covering plates that bar access to the Hardware ports and/or accessing internal components of the Hardware) or decompile the Products or any portion thereof or otherwise attempt to derive or determine the source code or the logic therein, or create derivative works based on the Products, or authorize any third party to do any of the foregoing, except to the extent that such restriction is prohibited by applicable law;
3.4.3. except to the extent expressly stated otherwise in this License Agreement, use Products for which Licensee has not paid and ST has not received the applicable Fees;
3.4.4. sub-license, rent, sell, lease, distribute, transfer, transmit, embed, provide access to, or otherwise use the Products for the benefit of third parties as part of a service bureau or managed-service arrangement, cloud services offering, bundled product or otherwise, except as expressly provided under this License Agreement and/or unless Licensee enters into a separate agreement with ST for such purposes;
3.4.5. use the Products other than in the course of business and for Licensee’s own internal information security purposes unless and to the extent that such Products have been expressly licensed for employee personal use according to Section 14.5;
3.4.6. transfer Licensed Products to any third party without the prior written consent of ST; and/or
3.4.7. use the Products in or in association with safety critical applications where the failure of the Products to perform can reasonably be expected to result in a physical injury, or in loss of property, or loss of life. Any such use is entirely at Licensee’s own risk, and Licensee agrees to hold ST harmless from and hereby releases ST from any and all claims or losses relating to such unauthorized use.
3.5. Permitted Third Party Usage. Licensee may permit its Affiliates and Outsourced Providers to use the Products provided that: (i) Licensee shall provide prior written notice to ST, (ii) the Affiliates and Outsourced Providers shall only use and/or operate the Products, in accordance with the license rights granted herein, on behalf of Licensee and its Affiliates, (iii) the actual usage of the Products by Licensee, Licensee’s Affiliates and Outsourced Providers in aggregate shall not exceed the License Entitlement purchased by the Licensee, (iv) Licensee shall ensure that its Affiliates and the Outsourced Providers are aware of and comply with the terms and conditions of this License Agreement; and, (v) Licensee shall be responsible for, and hold ST harmless from, the acts and omissions of its Affiliates and Outsourced Providers relating to use of the Products.
3.6. Licensee acknowledges and agrees that it has not based its purchasing decision on the future availability of any new products and/or additional features, components or versions of the Products, nor on any oral or written comments made by ST regarding future functionality or features.
3.7. Licensee is solely responsible for its compliance with the applicable terms and conditions of any third-party agreements, including without limitation payment of any third party fees, for hardware, software, connectivity and any other third party products and services.
4. MAINTENANCE AND SUPPORT
4.1. Unless otherwise stated in the Order, Maintenance is included for the duration of the Product Term.
4.2. Maintenance includes standard/base level remote technical support provided from 8:00 AM to 5:00 PM (17:00) Israel Standard Time, Sunday through Thursday, excluding holidays. Upon ST’s receipt of a support request, ST will use commercially reasonable efforts to answer questions and provide standard error corrections to known problems. Unless otherwise authorized by ST in writing, technical support is provided for the latest version of the relevant Product. ST may, but is not obliged to, continue supporting old or discontinued Product versions.
4.3. Support does not include training sessions on the features and functionality of the Products or training in computer skills considered prerequisite to an individual’s ability to use personal computers, the Internet/World Wide Web and online software.
4.4. ST reserves the right in its discretion to limit the number of Users who may contact ST technical support.
4.5. Custom or sample code, files or scripts (“Fixes”) provided by ST as part of the provision of technical support that do not form part of its standard commercial offering may only be used (i) in conjunction with the Product for which such Fixes were developed, and (ii) during the relevant Product Term.
5. WARRANTIES FOR LICENSED PRODUCTS; INDEMNITY
5.1. ST warrants to Licensee only that for a period of ninety (90) days from the date of purchase (the "Licensed Products Warranty Period"): (i) the Licensed Products will perform substantially in accordance with the Documentation provided that they are operated in accordance with the Documentation on the designated operating system(s); and (ii) the Documentation will adequately describe the operation of the Licensed Products in all material respects.
5.2. If Licensee notifies ST in writing of a breach of warranty under Section 5.1 during the Licensed Products Warranty Period, ST’s entire liability and Licensee’s sole remedy shall be at ST’s option: (i) to correct, repair or replace the Licensed Product (limited to one replacement) and/or Documentation within a reasonable time, or (ii) to terminate the License Agreement as to the affected Licensed Product, and the corresponding License Entitlement, and authorize a pro rata refund of the Fee following return of the relevant Licensed Product (and all copies thereof) accompanied by proof of purchase. Any replacement Licensed Products shall be warranted for the remainder of the original Licensed Products Warranty Period.
5.3. The warranty in Section 5.1 shall not apply if (i) the Licensed Product has not been used in accordance with the terms and conditions of this License Agreement and the Documentation, (ii) the issue has been caused by failure of the Licensee to apply Updates, Upgrades or any other action or instruction recommended by ST, (iii) the issue has been caused by the act or omission of, or by any materials supplied by, the Licensee or any third party, or (iv) the issue results from any cause outside of ST’s reasonable control.
5.4.Subject to Sections 5.5 through 5.7, ST shall (a) defend, indemnify, and hold Licensee harmless from any third party claim, action, suit or proceeding alleging that Licensee’s use or possession of the Product in accordance with the terms and conditions of this License Agreement infringes such third party’s patent, trademark or copyright (“Claim”); and (b) reimburse Licensee’s reasonable attorney’s fees and costs actually incurred and any damages finally awarded or agreed to by ST in a monetary settlement. ST shall have sole control of the defense of the Claim and all associated settlement negotiations. ST may require Licensee to join and co-operate with the defense and/or settlement of the Claim at ST’s cost.
5.5. If a Claim is made or appears likely to be made, ST, in its sole discretion, may: (i) procure a license so that Licensee’s use and possession of the Licensed Product in accordance with the terms and conditions of this License Agreement does not infringe any third party patents, trademarks or copyrights; (ii) modify or replace the Product with a functionally equivalent Product so that it no longer infringes the third party’s patents, trademarks or copyrights; or (iii) terminate the license to use the Product upon notice to Licensee and provide a pro rata refund of Fees paid for such Product that relates to the period after the date of termination in the case of subscription term Products.
5.6. Exclusions. ST shall have no liability or responsibility to indemnify, defend, and hold Licensee harmless under Section 5.4 if: (i) Licensee fails to notify ST in writing within ten (10) days of Licensee being notified of any such Claim, (ii) Licensee does not, at the written request of ST, promptly cease to use or possess the Product that is the subject of the Claim, (iii) Licensee, without ST’s prior written consent, acknowledges the validity of the Claim or takes any action that might impair the ability of ST to contest the Claim, (iv) the infringement arises due to modification of the Product by anyone other than ST, use of the Product other than in accordance with the Documentation, or use of the Product with any hardware, software or other component not provided by ST, and the infringement would not have arisen without such use or modification, or (v) the Claim is raised based on use or possession in a country that is not a party to the World Intellectual Property Organization (WIPO) treaties on patents, trademarks and copyrights.
5.7. SECTIONS 5.4, 5.5 AND 5.6 SET OUT LICENSEE’S SOLE AND EXCLUSIVE REMEDY AND ST’S SOLE OBLIGATION AND LIABILITY IN THE EVENT THAT THE PRODUCTS INFRINGE OR ARE ALLEGED TO INFRINGE THE PATENTS, TRADEMARKS, COPYRIGHTS OR OTHER INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. LICENSEE WILL IN ANY EVENT MITIGATE LICENSEE’S LOSSES AS FAR AS POSSIBLE.
6. DISCLAIMER OF WARRANTIES
6.1. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTIONS 5.1 AND 14.2.5, ST AND ITS THIRD-PARTY LICENSORS AND SUPPLIERS AND THE CONTRIBUTORS OF CERTAIN INCLUDED SOFTWARE MAKE NO WARRANTIES, CONDITIONS, UNDERTAKINGS OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, IN RELATION TO THE PRODUCT OR ANY THIRD PARTY SOFTWARE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, UNINTERRUPTED USE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ARISING FROM COURSE OF DEALING, USAGE OR TRADE.
6.2. WITHOUT LIMITATION TO THE FOREGOING, ST DOES NOT WARRANT OR REPRESENT THAT (I) THE PRODUCT WILL MEET LICENSEE’S REQUIREMENTS, (II) THE OPERATION OF THE PRODUCT WILL BE ERROR FREE OR UNINTERRUPTED, (III) DEFECTS IN THE PRODUCT WILL BE CORRECTED, (IV) THE PRODUCTS WILL DETECT, CORRECTLY IDENTIFY AND/OR DISINFECT ALL THREATS, APPLICATIONS (WHETHER MALICIOUS OR OTHERWISE) OR OTHER COMPONENTS, (V) LICENSEE IS ENTITLED TO BLOCK ANY THIRD PARTY APPLICATIONS, OR (VI) THAT LICENSEE IS ENTITLED TO ENCRYPT OR DECRYPT ANY THIRD PARTY INFORMATION.
6.3. LICENSEE FURTHER ACKNOWLEDGES AND AGREES THAT LICENSEE SHALL BE SOLELY RESPONSIBLE FOR PROPER BACK-UP OF ALL OF ITS DATA AND THAT LICENSEE SHALL TAKE APPROPRIATE MEASURES TO PROTECT SUCH DATA. ST AND ITS THIRD-PARTY LICENSORS ASSUME NO LIABILITY OR RESPONSIBILITY WHATSOEVER IF DATA IS LOST OR CORRUPTED.
7. LIMITATION OF LIABILITY
7.1. LICENSEE USES THE PRODUCT AT LICENSEE’S OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ST OR ANY OF ITS THIRD-PARTY LICENSORS AND SUPPLIERS OR THE CONTRIBUTORS OF INCLUDED SOFTWARE BE LIABLE TO LICENSEE FOR, OR TO THOSE CLAIMING THROUGH LICENSEE FOR, ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGE OR LOSS OF ANY KIND INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF CONTRACTS, BUSINESS INTERRUPTIONS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF OR CORRUPTION OF DATA HOWEVER CAUSED AND WHETHER ARISING UNDER CONTRACT OR TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), AND INCLUDING WITHOUT LIMITATION ANY LOSS OR DAMAGE RELATED TO ANY THIRD PARTY SOFTWARE EVEN IF ST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS IN THIS SECTION SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY.
7.2. IF ANY LIMITATION, EXCLUSION, DISCLAIMER OR OTHER PROVISION CONTAINED IN THIS LICENSE AGREEMENT IS HELD TO BE INVALID FOR ANY REASON BY A COURT OF COMPETENT JURISDICTION AND ST BECOMES LIABLE THEREBY FOR LOSS OR DAMAGE THAT MAY LAWFULLY BE LIMITED, SUCH LIABILITY WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR OTHERWISE, WILL NOT EXCEED THE LESSER OF (I) THE FEE PAID BY LICENSEE AND (II) ST’S LIST PRICE FOR THE PRODUCT.
7.3. IN NO EVENT SHALL ST’S AGGREGATE LIABILITY TO LICENSEE ARISING OUT OF OR IN CONNECTION WITH THIS LICENSE AGREEMENT, FROM ALL CAUSES OF ACTION AND THEORIES OF LIABILITY (INCLUDING WITHOUT LIMITATION NEGLIGENCE), EXCEED THE LESSER OF (I) THE FEE PAID BY LICENSEE AND (II) ST’S LIST PRICE FOR THE PRODUCT.
7.4. ST DOES NOT LIMIT OR EXCLUDE ITS LIABILITY FOR (I) DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE, (II) FRAUDULENT MISREPRESENTATION, OR (III) ANY OTHER LIABILITY TO THE EXTENT THAT SUCH LIABILITY CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW.
8. PRODUCT CHANGES
8.1. Subject to Sections 4 and 10, and in ST’s sole discretion, Licensee may receive software Updates, and may be required to install or allow installation of software Updates as a condition of continued use of Licensed Products. Licensee acknowledges and agrees that ST may vary, Update or discontinue Products, Product versions, Product features, Product support, Product Maintenance, and support for third party products (including without limitation operating systems and platforms) from time to time for reasons including but not limited to changes in demand or enhancing security and technology. Licensee consents to receive Updates or Upgrades to the Licensed Products automatically through the Internet without obtaining further consent each time. ST is not responsible if an Update or Upgrade affects how a Licensed Product works if this is caused by Licensee’s own equipment or device not supporting the Update or Upgrade.
8.2. ST will provide a reasonable amount of advance notice of any planned Product discontinuation of a core Product feature, Licensee’s license to a Product, Product Maintenance, or Product support, or support for third party products (a “Discontinuation”) to Licensee, including without limitation by emailing the date(s) of each planned Discontinuation.
8.3.Unless otherwise required by applicable law, ST will not provide a refund of Fees paid for a Product or service that is subject to a Discontinuation. ST may, at its sole discretion, substitute a Product, service, or management platform subject to a Discontinuation with a Product, service, or management platform with substantially equivalent functionality. ST recommends Licensees always use the latest version of a Product and/or third-party product, as the case may be.
9. THIRD PARTY SOFTWARE
The Products may operate or interface with software or other technology that is licensed to ST from third parties. Licensee agrees that (a) it will use such third party software in accordance with this License Agreement, (b) no third party licensor makes any warranties, conditions, undertakings or representations of any kind, either express or implied, to Licensee concerning such third party software or the Products themselves, (c) no third party licensor will have any obligation or liability to Licensee as a result of this License Agreement or Licensee's use of such third party software, (d) the third party licensor is a beneficiary of this License Agreement and accordingly may enforce the terms and conditions herein to the extent necessary to protect its rights in relation to the third party software, and (e) such third party software may be licensed under license terms that grant Licensee additional rights or contain additional restrictions in relation to such materials, beyond those set forth in this License Agreement, and such additional license rights and restrictions are described or linked to in the applicable Documentation, the relevant ST webpage, or within the Product itself. For the avoidance of any doubt, such additional rights and/or restrictions apply to the third-party software on a standalone basis; nothing in such third party licenses shall affect Licensee’s use of the Licensed Products in accordance with the terms and conditions of this License Agreement.
10. EXPORT CONTROL, ANTI-BRIBERY AND COMPLIANCE WITH APPLICABLE LAWS
10.1. Licensee is solely responsible for ensuring that the Products are used, accessed, disclosed and/or transported only in accordance with Sanctions and Export Control Laws.
10.2. Licensee certifies that Licensee or Users, or any party that owns or controls or is owned or controlled by Licensee or Users, are not (i) ordinarily resident in, located in, or organized under the laws of any country or region subject to economic or financial sanctions or trade embargoes imposed, administered, or enforced by the European Union, the United Kingdom, or the United States; (ii) an individual or entity on the Consolidated List of Persons, Groups, and Entities Subject to European Union Financial Sanctions; the U.S. Department of the Treasury's List of Specially Designated Nationals and Blocked Persons or Foreign Sanctions Evaders List; the U.S. Department of Commerce's Denied Persons List or Entity List; or any other sanctions or restricted persons lists maintained by the European Union, the United Kingdom, or the United States; or (iii) otherwise the target or subject of any Sanctions and Export Control Laws. Licensee further certifies that it will not, directly or indirectly, export, re-export, transfer, or otherwise make available (a) the Products, or (b) any data, information, software programs and/or materials resulting from the Products (or direct product thereof) to any country, region, or person described in this Section or in violation of, or for purposes prohibited by, Sanctions and Export Control Laws, including for proliferation-related end uses.
10.3. Licensee agrees that ST shall have no obligation to provide any Updates, Upgrades or services related to the Products where ST believes the provision of such Updates, Upgrades or services could violate Sanctions and Export Control Laws.
10.4. Each party warrants that in entering into this License Agreement neither the party nor any of its officers, employees, agents, representatives, contractors, intermediaries or any other person or entity acting on its behalf has taken or will take any action, directly or indirectly, that contravenes (i) the United Kingdom Bribery Act 2010, or (ii) the United States Foreign Corrupt Practices Act 1977, or (iii) any other applicable anti-bribery laws or regulations anywhere in the world.
10.5. Licensee warrants that its use and possession of the Products is and will continue to be in accordance with all other applicable laws and regulations. In particular but without limitation, Licensee acknowledges and agrees that it may be necessary under applicable law for Licensee to inform and/or obtain consent from individuals before it intercepts, accesses, monitors, logs, stores, transfers, exports, blocks access to, and/or deletes their communications. Licensee is solely responsible for compliance with such laws.
10.6. ANY BREACH OR SUSPECTED BREACH OF THIS SECTION 10 BY LICENSEE SHALL BE A MATERIAL BREACH INCAPABLE OF REMEDY AND ENTITLES ST TO TERMINATE THIS LICENSE AGREEMENT IMMEDIATELY WITH OR WITHOUT NOTICE TO LICENSEE. In addition, Licensee agrees (to the extent permitted by applicable law, and without waiver of Licensee’s constitutional, statutory, or other immunities, if any) to indemnify and hold ST harmless from and against any claim, proceeding, loss, liability, cost or damage suffered or incurred by ST resulting from or related to Licensee’s violation of this Section 10.
11.1. This License Agreement and Licensee’s rights under it will terminate immediately if: (i) Licensee fails to pay the Fee to ST or the Partner (as applicable) in accordance with the agreed payment terms; or (ii) ST does not receive payment from the relevant Partner for the Products and packages provided to Licensee, or (iii) Licensee breaches any of the terms and conditions of this License Agreement; or (iv) if Licensee becomes insolvent.
11.2. Subject to Section 11.5, Licensee may terminate the license for the applicable Licensed Product(s) at any time by uninstalling and/or returning or destroying (if so requested by ST) the relevant Product and Documentation and all copies thereof.
11.3. Within one (1) month after the date of termination of this License Agreement or the applicable Product Term, upon ST’ request, Licensee will supply ST with written certification of the destruction of all partial and complete copies of the applicable Licensed Product and Documentation. In the case of encryption Products, Licensee shall decrypt all encrypted drives and data prior to uninstalling and destroying the Product.
11.4.Licensee’s right to use and access the Products will automatically terminate on expiry of the applicable Product Term or this License Agreement (whichever is the earlier) unless and until Licensee renews Licensee’s license for the Products.
11.5. Except as expressly set forth herein, all Fees paid or payable are non-refundable to the maximum extent permitted by law.
12. CONFIDENTIALITY AND DATA PROTECTION
12.1. ST and the Licensee may receive or have access to confidential information under or in relation to this License Agreement that is secret and valuable to the other party and its licensors. A recipient is not entitled to use, communicate or disclose the other party’s confidential information to a third party without the disclosing party’s prior, written consent. The recipient will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care).
12.2. The Licensed Products (including any Updates or Upgrades) may (if applicable): (i) cause Licensee’s device to automatically communicate with ST’s servers to deliver the functionality described in the product description or through new features as they are introduced, and to record usage metrics; (ii) affect preferences or data stored on Licensee’s device; and (iii) collect personal information as set out in our Privacy Notice (the “Privacy Notice”). Licensee acknowledges and agrees that ST may directly and remotely communicate with the Products in order to provide Maintenance and technical support, and to collect the following types of information: (i) Products, Product versions, Product features and operating systems being used by Licensee, (ii) processing times taken by the Product, (iii) Licensee’s customer identification code and company name, and (iv) IP and/or MAC address and/or ID of the machine that returns the above listed information. Certain Products may require the collection of additional information as detailed in the Privacy Notice.
12.3. The information collected under Section 12.2 may be used for the purposes of (i) providing the Products and performing this License Agreement, (ii) verifying Licensee’s compliance with the License Entitlement, (iii) evaluating and improving the performance of the Products, (iv) preparing statistical analysis (such as malware infection rates and the usage of Products), (v) planning development roadmaps and product lifecycle strategies, (vi) issuing alerts and notices to Licensee about incidents and product lifecycle changes that affect the Products being used by Licensee.
12.4. ST may also require identification information for the Licensee, including, but not limited to, Licensee’s contact details and (where applicable) payment information for the purposes of (i) providing technical support, (ii) billing, (iii) verifying Licensee’s credentials and License Entitlement, (iv) issuing license expiry and renewal notices, (v) carrying out compliance checks for export and sanction control purposes, and (vi) providing account management. Licensee agrees to provide complete and accurate identification information to ST promptly upon ST’s request.
12.5. If the Licensee elects to send malware samples or any other materials to ST for review, the Licensee shall remove any regulated personally identifiable information, health information, and payment card data prior to submission.
13.1. Any Partner from whom Licensee may have purchased the Product is not appointed by ST as its servant or agent. No such person has any authority, either express or implied, to enter into any contract or provide any representation, warranty or guarantee to Licensee or any third party or to translate or modify this License Agreement in any way on behalf of ST or otherwise to bind ST in any way whatsoever.
13.2. Licensee has no obligation to provide ST with ideas, suggestions, concepts, or proposals relating to ST’s products or business (“Feedback”). However, if Licensee provides Feedback to ST, Licensee grants ST a non-exclusive, perpetual, irrevocable, worldwide, sub-licensable, transferable, royalty-free right and license to store, make, use, sell, market, have made, offer to sell, import, reproduce, publicly display, transmit, distribute, modify, publicly perform, and otherwise exploit such Feedback, in whole or in part, for any purpose, including combining the Feedback with other materials and/or products and making derivative works of or alterations to the Feedback in any manner or format whatsoever, without any reference, obligation, or remuneration to Licensee. All Feedback shall be deemed non-confidential to Licensee. Licensee shall not provide to ST any Feedback it has reason to believe is or may be subject to the intellectual property claims or rights of a third party.
13.3.(i) Self-Audits. To help manage Licensee’s use of the Products and Licensee’s compliance with this License Agreement, Licensee agrees to perform a self-audit upon ten (10) working days’ prior written notice from ST, calculating the number of Users, Computers, Servers or other applicable units benefiting from the Products. If Licensee’s self-audit reveals that Licensee’s actual usage exceeds the License Entitlement, Licensee shall procure the additional licenses required from ST or its preferred Partner. (ii) Formal Audits. If Licensee does not perform a self-audit upon request from ST, or if ST has reason to doubt the results of such self-audit, upon prior written notice to Licensee, Licensee shall permit ST or an independent certified accountant appointed by ST to access Licensee’s premises and inspect Licensee’s books of account and records at any time during normal business hours for the purpose of inspecting, auditing, verifying or monitoring the manner and performance of Licensee’s obligations under this License Agreement, including without limitation the payment of all applicable license fees. Any such audit shall minimize the disruption to Licensee’s business operations. ST shall not be able to exercise this right more than once in each calendar year. If an audit reveals that Licensee has underpaid fees to ST, Licensee shall be invoiced for and shall pay to ST or the Partner (as applicable) within thirty (30) days of the date of invoice an amount equal to the shortfall between the fees due and those paid by Licensee. If the amount of the underpayment exceeds five percent (5%) of the fees due or the audit reveals a violation of any license restrictions pursuant to this License Agreement then, without prejudice to ST’s other rights and remedies, Licensee shall also pay ST’s reasonable costs of conducting the audit.
13.4. ST may in its sole discretion assign, novate, subcontract or otherwise transfer any of its rights or obligations hereunder.
13.5. ST may amend the terms and conditions of this License Agreement and/or any documents and policies referenced herein at any time by notice to Licensee, including without limitation by posting revised terms and conditions on its website and/or the location of such document or policy. Such amended terms and conditions shall be binding upon Licensee with effect from the date of such change. For the avoidance of doubt, such amended terms and conditions shall supersede any prior version of the License Agreement that may have been embedded in or packaged with the Product itself.
13.6. Failure by either party to enforce any particular term or condition of this License Agreement shall not be construed as a waiver of any of its rights under it.
13.7. The illegality, invalidity or unenforceability of any part of this License Agreement will not affect the legality, validity or enforceability of the remainder.
13.8. If Licensee and ST have signed a separate written agreement covering the licensing and use of the Products, the terms and conditions of such signed agreement shall take precedence over any conflicting terms and conditions of this License Agreement. Otherwise this License Agreement, the Order and the documents and policies referenced herein constitute the entire agreement between the parties relating to the licensing and use of the Products and supersede any other oral or written communications, agreements or representations with respect to the Products, except for any oral or written communications, agreements or representations made fraudulently.
13.9. If there are any inconsistencies between the English language version of this License Agreement and any translated version, the English language version shall prevail.
13.10. Subject to Section 9(d), a person who is not a party to this License Agreement has no right to enforce any term or condition of this License Agreement, and the parties to this License Agreement do not intend that any third party rights are created by this License Agreement.
13.11. Governing Law. This License Agreement, the relationship between Licensee and ST, and any dispute or claim arising out of or in connection with it, including without limitation non-contractual disputes or claims, shall be governed by and construed in accordance with the laws of the State of Israel notwithstanding its conflicts of law principles.
13.12. Jurisdiction. The courts located in Tel Aviv, Israel, shall have exclusive jurisdiction to determine any dispute or claim that may arise out of, under, or in connection with this License Agreement.
13.13. Nothing in Section 13.1 shall limit the right of ST to initiate proceedings against Licensee in any court of competent jurisdiction where deemed necessary by ST to (i) protect its intellectual property rights, (ii) protect its confidential information, and/or (iii) recover overdue payments.
13.14. Any notices required to be given to ST or any questions concerning this License Agreement should be addressed to _______@email@example.com.
13.15. The following Sections shall survive any termination or expiration of this License Agreement: 2, 6, 7, 10, 11.3, 12.1, 13, and 14.2.4.
13.16. Force Majeure. The failure of ST to comply with any provision of this License Agreement due to an act of God, hurricane, war, fire, riot, earthquake, pandemic, terrorism, and act of public enemy, actions of governmental authorities (excepting compliance with applicable codes and regulations) or other force majeure event will not be considered a breach of this License Agreement.
14. ADDITIONAL TERMS AND CONDITIONS.
The first part of this License Agreement includes general terms and conditions applicable to all Products. The additional terms and conditions in this Section 14 below apply only to the Products referenced in each section.
14.1. Direct Purchases from ST. This Section only applies if Licensee purchases Products from ST directly, rather than through a Partner:
14.1.1. All Products are delivered ICC Incoterms 2010 Ex Works from the applicable ST site. Accordingly, the Licensee is responsible for delivery costs, export clearances, import clearances, and insurance costs.
14.1.2. Fees shall be paid in full, in the currency and via the payment method specified on the invoice, within thirty (30) days of the date of such invoice.
14.1.3. Unless expressly stated otherwise, the Fee is exclusive of value added tax and any other federal, state, municipal or other governmental taxes, duties, licenses, fees, excises or tariffs.
14.1.4.Invoices may provide for interest to be paid on any sums not remitted by the due date.
14.2. Hardware Products. This Section only applies to Hardware Products:
14.2.1. In the event that Licensee fails to pay or ST does not receive the Fee for the Hardware, Licensee shall return the Hardware to the return location indicated by ST, securely and properly packaged, with carriage (and insurance at Licensee’s option) prepaid. If Licensee fails to return the Hardware to the indicated location promptly, upon written notice ST will be entitled to enter Licensee’s premises during normal business hours to repossess such Hardware.
14.2.2. Risk of loss passes to Licensee upon shipment of the Hardware to Licensee. Insurance, if any, covering the Hardware shall be Licensee’s sole responsibility.
14.2.3. Licensee acknowledges that the Hardware is sold hereunder solely as the medium for delivery and operation of the Licensed Products and, unless otherwise agreed by the parties in writing, ST at its option may provide Hardware that is either new or refurbished.
14.2.4. Licensee is solely responsible for complying with any applicable governmental regulations relating to waste, health and safety in connection with Licensee’s use, transport and/or disposal of the Hardware.
14.2.5. For a period of one (1) year term from the date of original purchase from ST or such other period as may be specifically noted in the Order, as applicable (the “Hardware Warranty Period”), and provided always that Licensee has a valid, fully paid up, unexpired license and Maintenance subscription for such Product, ST warrants to the original purchaser only that the Hardware shall be free of defects in materials and workmanship under normal use and service and substantially conform to the Documentation. If ST is notified in writing of a breach of the above warranty during the Hardware Warranty Period, ST’s entire liability and Licensee’s sole remedy shall be (at ST’s option) to correct, repair or replace the Hardware and/or Documentation as applicable within a reasonable time, or provide or authorize a refund of the Fee paid for such Hardware following the return of the Hardware accompanied by proof of purchase. Any items provided as replacement under the terms of this Section will be warranted for the remainder of the original Hardware Warranty Period. FOR THE AVOIDANCE OF ANY DOUBT, ST SHALL NOT BE RESPONSIBLE FOR MAINTAINING OR PROTECTING ANY CONFIGURATION SETTINGS OR DATA FOUND ON THE RETURNED HARDWARE OR COMPONENT PART THEREOF. FURTHERMORE, THE ABOVE HARDWARE WARRANTIES ARE NULL AND VOID IF ANY WARRANTY STICKERS ARE TAMPERED WITH OR ARE MISSING, OR IF THE HARDWARE WAS REPAIRED OR ALTERED BY PERSONNEL OTHER THAN THOSE AUTHORIZED BY ST.
14.3. ST Cloud Products (“Cloud Products”). This Section only applies to ST Cloud Products:
14.3.1. The Licensee shall not store or transmit any content through the Cloud Products that (i) is unlawful, pornographic, obscene, indecent, harassing, racially or ethnically offensive, harmful, threatening, discriminatory or defamatory, (ii) facilitates or promotes illegal activity, (iii) infringes any third party intellectual property rights, or (iv) is otherwise inappropriate (“Prohibited Content”).
14.3.2. The Licensee acknowledges that ST has no control over any content stored or transmitted by Licensee, does not monitor such content and accordingly acts as a mere conduit. ST reserves the right to remove content from the Cloud Products immediately without prior notice where it reasonably suspects that such content is Prohibited Content. The Licensee shall (to the extent permitted by applicable law, and without waiver of Licensee’s constitutional, statutory, or other immunities, if any) indemnify and hold ST harmless from and against all damages, losses and expenses arising as a result of any third party action or claim relating to Licensee’s content. Licensee is solely responsible for all activity occurring under Licensee’s Product, Cloud Product and support accounts, including the rights and privileges Licensee grants to Users and any activity undertaken or decision made by Users.
14.3.3. The Product or Cloud Product may enable access to or link third parties’ websites, platforms, content, products, services or information (“Third Party Services”). Third Party Services are not part of the Product or Cloud Product, and ST does not control and is not responsible for the Third Party Services. Licensee is solely responsible for: (a) obtaining and complying with any terms of access and use of the Third Party Services, including any separate fees or charges imposed by the provider of the Third Party Services; and (b) configuring the Third Party Services appropriately. ST disclaims all responsibility and liability arising from or related to Licensee’s access or use of the Third Party Services, including any impact on the Product capabilities as a result of the Licensee’s use of, or reliance upon, the Third Party Services.
14.3.4. The Cloud Products are not designed for the storage of regulated health or payment card data and Licensee may only store or transmit such information through Cloud Products if it has entered a separate written agreement with ST expressly permitting such purpose.
14.3.5. Prior to termination or expiry of the Product Term, Licensee must (i) remove all Product settings from its Servers and Computers, and (ii) remove all of its custom settings, software and data from the ST network. For certain Products, ST may download and return the data upon request and for a reasonable fee to be agreed in writing in advance. Subject to applicable laws, ST reserves the right to delete data that has not been removed after such termination or expiry date.
14.4. LICENSEE ACKNOWLEDGES AND AGREES THAT THE PRODUCT MAY REQUIRE THE COMPLETE ERASURE OF THE HARD DISK OF THE TARGET COMPUTER DURING INSTALLATION, INCLUDING WITHOUT LIMITATION THE OPERATING SYSTEM RESIDENT THEREON. BY INSTALLING THE AFOREMENTIONED PRODUCT, LICENSEE EXPRESSLY AGREES THAT IT SHALL ENSURE THAT THE COMPUTER ON WHICH SUCH PRODUCT IS TO BE INSTALLED DOES NOT CONTAIN ANY VALUABLE DATA, THE LOSS OF WHICH WOULD CAUSE DAMAGE TO LICENSEE, AND ST EXPRESSLY DISCLAIMS ANY LIABILITY FOR LOSSES OF ANY KIND RELATED TO LICENSEE’S FAILURE TO DO SO.
14.5. Employee Personal Use.
14.5.1. Employee personal use of Products is not permitted without the prior express written consent of ST. If ST agrees to permit personal use of any Product, such use is subject to the terms of this License Agreement, and must not cause Licensee’s total usage, including such personal use does not exceed the License Entitlement.
14.5.2. Licensee shall ensure that its employees are aware of and comply with the terms and conditions of this License Agreement, and, to the extent permitted by applicable law, Licensee shall be responsible for the acts and omissions of its employees relating to use of the Products.
14.6. Other important terms: (i) ST may transfer its rights and obligations under this License Agreement to another organization, and ST will always notify Licensee in writing if this happens, but this will not affect Licensee’s rights or ST's obligations under this License Agreement; (ii) Licensee may only transfer Licensee’s rights and obligations under this License Agreement to another person if ST agrees in writing; (iii) the contract formed by this License Agreement is between Licensee and ST. No other person shall have any rights to enforce any of its terms; (iv) each of the paragraphs of this License Agreement operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect; (v) if ST fails to insist that Licensee perform any of Licensee’s obligations under this License Agreement, or if ST does not enforce its rights against Licensee, or if ST delays in doing so, that will not mean that ST has waived its rights against Licensee and will not mean that Licensee does not have to comply with those obligations. If ST does waive a default by Licensee, ST will only do so in writing, and that will not mean that ST will automatically waive any later default by Licensee; (vi) ST may amend the terms and conditions of this License Agreement and/or any documents and policies referenced herein at any time by notice to Licensee. ST will use reasonable efforts to bring any such changes Licensee’s attention, including without limitation via in-Product informational notices. Such amended terms and conditions shall be binding upon Licensee within fifteen (15) calendar days, unless Licensee objects to such amended terms and conditions by terminating Licensee’s license in accordance with Section 11.2 or by notifying ST in writing and entering into a subsequent written agreement between ST and Licensee. Failure to terminate Licensee’s license within such period shall mean that Licensee expressly and unreservedly accepts all the amendments contained in the notice, which shall take effect immediately upon expiry of said fifteen (15) calendar day period. For the avoidance of doubt, such amended terms and conditions shall supersede any prior version of the License Agreement that may have been embedded in or packaged with the Product itself.