CyberSoft End User License AgreementIMPORTANT - READ CAREFULLY: This End User License Agreement ("License Agreement") is a legally enforceable agreement between you (either an individual or a single entity) ("you" or "LICENSEE") and CyberSoft Operating Corporation ("CyberSoft"), regarding the use of the Licensed Software (as defined below) included or supplied with or on, or incorporated into, this media and/or downloaded by or otherwise provided to you in electronic form or otherwise. By installing, copying or otherwise using the Licensed Software, you agree to be bound by the terms of this License Agreement. If you do not agree to the terms of this License Agreement, do not install, copy or use the Licensed Software; however, you may return it to CyberSoft or the third party distributor, dealer or supplier ("Distributor") from whom you purchased the Licensed Software for a full refund.
1.1. "Embedded Programs" means all third party software, modules, products, interfaces, data files and other files and programs provided by CyberSoft as part of or in connection with its proprietary software.
1.2. "Licensed Software" means (i) CyberSoft's proprietary software, which may include but is not limited to VFind Security Tool Kit Standard Edition (VSTK), VFind Security Tool Kit Professional (VSTKP), VFind Security Tool Kit for Cyber War (VSTKCW), Network Traffic Interceptor Cryptographic Module, Cryptographic Integrity Tool and Trojan Horse Detector (CITTHD), Wave Antivirus for MicroSoft WindowsTM (Wave) and/or other CyberSoft-branded products, as applicable, (ii) the Embedded Programs, (iii) the Updates, and (iv) all documentation, instructions, manuals, diagrams and other materials, in whatever medium or format, pertaining to the foregoing.
1.3. "System" means a single computer system with one or more cpu processors sharing a common motherboard or backplane (but in no event shall a network constitute a motherboard or backplane hereunder).
1.4. "Updates" means "bug" fixes and other updates, enhancements, upgrades or releases of the Licensed Software, but shall not include new products or modules unless otherwise determined by CyberSoft in its sole discretion.
2.1. Subject to the conditions herein, CyberSoft hereby grants to you, as LICENSEE, a non-transferable, non-exclusive, limited license to use the Licensed Software in machine-readable form on one System (the "License"); provided, however, that if the purchase order, invoice or other documentation pursuant to which you licensed the Licensed Software (the "Invoice"), if any, states that the License is a "seat license," the foregoing License shall entitle you to have only up to the maximum number of your employees or agents ("Users") set forth in the Invoice use the Licensed Software. The License granted herein is subject to all further restrictions as set forth in the Invoice. Unless the context otherwise requires, all references herein to "you" or "LICENSEE" shall include the Users, and LICENSEE shall be liable for all acts and omissions of the Users. No license, right or interest in any trademark, trade name or service mark of CyberSoft is granted under this License.
2.2. If the Invoice indicates certain equipment on which the Licensed Software may be used (the "Designated Equipment"), no license is granted for use of the Licensed Software on other than the Designated Equipment. In the event that, and only for so long as, the Designated Equipment is not operative, you may transfer to and use the Licensed Software on backup equipment at the "Designated Site," as set forth in the Invoice, or some other site, for so long as the Designated Equipment remains inoperative.
2.3. You may use the Licensed Software solely for your own internal use. Any other use of the Licensed Software (including without limitation timesharing, rental, facility management or service bureau usage) is strictly prohibited.
2.4. You may not sell, lease, assign, sublicense or otherwise transfer, in whole or in part, this License Agreement, the License, the Licensed Software and other CyberSoft-provided materials, or any licenses or rights granted hereunder, except as approved by CyberSoft in writing. Transfer to the United States Government as a designated end user when part of a turnkey system is expressly permitted, subject to Section 12 hereof on U.S. Government Restricted Rights.
2.5. The License granted hereunder is for the object code version of the Licensed Software only. You shall not, and shall not permit anyone under your direction or control to, reverse engineer, disassemble or de-compile the Licensed Software or attempt to do so. LICENSEE may not modify, adapt, translate or create derivative works of the Licensed Software without CyberSoft's express written consent. The Licensed Software is licensed as a single product. Embedded Programs may be used only for purposes of (i) running the Licensed Software, and (ii) extracting data on a read-only basis from the Licensed Software for use with other programs. Embedded Programs may not be used for purposes of application development, modification or customization, or running programs other than the Licensed Software.
2.6. LICENSEE may not copy the Licensed Software or any part thereof, except for inactive backup and archival purposes only, and must include on all copies of the Licensed Software all copyright, government restricted rights and other proprietary notices or legends included on or in the Licensed Software as provided to LICENSEE.
2.7. Notwithstanding anything to the contrary herein, LICENSEE's access to and use of the Embedded Programs shall be and remain subject to all terms, conditions and licenses imposed by the manufacturers and/or third party licensors of such Embedded Programs, and LICENSEE shall comply with same.
2.8. LICENSEE shall be solely responsible for ensuring that performance of its obligations and exercise of its rights (including without limitation its use of the Licensed Software) under this License Agreement comply with all applicable federal, state, local and international laws, rules, regulations and orders (collectively, "Laws"), including without limitation all present and future laws and regulations relating to protection of intellectual property and privacy.
If CyberSoft delivers the Licensed Software on tangible media (i.e., diskette, CD-ROM, etc.), (i) CyberSoft shall deliver the Licensed Software to a common carrier, (ii) LICENSEE assumes all risk of loss or damage upon delivery of the Licensed Software by CyberSoft to the common carrier, and (iii) acceptance shall occur upon delivery of the Licensed Software by CyberSoft to the common carrier. In all other cases, acceptance shall occur immediately upon installation of the Licensed Software by LICENSEE. LICENSEE shall be solely responsible for installation of the Licensed Software.
4.1. For a period of twelve (12) months following your acceptance of the Licensed Software, CyberSoft will provide you the following maintenance and support services related to the Licensed Software ("Support Services") free of charge: (i) Updates, and (ii) reasonable access by telephone and/or the Internet to CyberSoft's technical staff during CyberSoft's regular business hours, up to a maximum of two (2) hours per month. LICENSEE should contact the Distributor from which it licensed the Licensed Software, if any, for support before contacting CyberSoft.
4.2. Notwithstanding the provisions of Section 4.1 hereof, CyberSoft reserves the right to charge LICENSEE for Support Services in connection with Wave, if at any time in the future CyberSoft determines, in its sole discretion, to charge Wave licensees generally for such services.
4.3. LICENSEE shall be solely responsible for providing all necessary hardware and software to run the Licensed Software. All telephone and connection arrangements and charges from LICENSEE's facility to CyberSoft shall be LICENSEE's responsibility.
4.4. Except as otherwise provided in Section 8.1 hereof with respect to the Updates, all Support Services are provided on an "as is", "where is" basis, and CyberSoft makes no warranties with respect to such Support Services. Licensees desiring extended Support Services and/or warranties with respect thereto may enter into a Software Maintenance Agreement with CyberSoft, subject to CyberSoft's approval in its sole discretion, for such services and/or warranties at an additional cost.
4.5. CyberSoft may, in its sole discretion, require LICENSEE to purchase and/or install certain Updates within a specified time period after their release, and may modify, suspend or terminate the Support Services, in whole or in part, upon LICENSEE's failure to timely do so, without liability or obligation to LICENSEE. Nothing herein shall be construed as requiring CyberSoft to support more than the most recent release of the Licensed Software.
4.6. Any technical information you provide to CyberSoft as part of the Support Services may be used by CyberSoft for product support and development; provided, however, that CyberSoft will not use such technical information in a form that personally identifies you. By providing utility or other programs created by or for you to operate in conjunction with the Licensed Software, you grant CyberSoft a perpetual, non-exclusive, irrevocable, worldwide, transferable, royal-free, fully paid-up license (with right to sublicense) to use, reproduce, distribute, display, perform, create derivative works of, and modify the source code and executable code versions of such programs.
5.1. The effective date of this License shall be the date of the initial use of the Licensed Software and its term is perpetual, subject to the termination provisions of this Section 5.
5.2. This License will terminate automatically upon your failure to comply with any term of this License Agreement. Upon termination of this License, you shall discontinue all use of the Licensed Software. In such event, the License and rights granted hereunder shall expire and you shall have no further rights or access to the Licensed Software.
5.3. CyberSoft may terminate provision of the Support Services at any time, without notice to you, if it ceases to provide such services to its licensees generally.
6.1. In consideration of the License and other rights granted by CyberSoft hereunder, you agree to pay the license fee specified in the Invoice and/or otherwise imposed by CyberSoft or any Distributor in connection herewith ("License Fees"). Unless otherwise provided in the Invoice, LICENSEE shall pay all License Fees within thirty (30) days after the date of CyberSoft's or Distributor's invoice therefor.
6.2. All payments shall be made in U.S. currency. Any sum not paid by LICENSEE when due shall bear interest until paid at a rate of 1.5% per month (18% per annum), or the maximum rate permitted by law, whichever is less. LICENSEE shall be responsible for the costs, including without limitation, reasonable attorneys' fees and court costs, incurred by CyberSoft in connection with CyberSoft's collection of any past-due amounts under this License Agreement.
6.3. All payments required under Section 6.1 or otherwise under this License are exclusive of taxes and you agree to bear and be responsible for the payment of all such taxes (except for taxes based upon CyberSoft's income) including, but not limited to, all sales, use, rental receipt, personal property, import and value-added or other taxes which may be levied or assessed in connection with this License.
7.1. CyberSoft, Inc. is the owner of all patents, copyrights, trademarks, trade secrets and other proprietary rights relating to the Licensed Software, and CyberSoft is the licensee of all such proprietary rights. The Licensed Software is protected under the copyright laws of the United States and equivalent or similar international laws and treaties, including without limitation, the Berne Convention. CyberSoft and its licensors may utilize all ideas, suggestions, feedback, improvements, data, reports or the like that LICENSEE provides to CyberSoft with respect to the Licensed Software without any obligation to LICENSEE.
7.2. Although copyrighted, the Licensed Software (and Embedded Programs) is unpublished and contains proprietary and confidential information of CyberSoft and its licensors. LICENSEE agrees to maintain the Licensed Software (including Embedded Programs) in confidence and to use a reasonable degree of care to protect the confidentiality of the Licensed Software (and the Embedded Programs).
8.1. CyberSoft warrants the media on which the Licensed Software is provided, if any, to be free from defects in materials and workmanship for ninety (90) days after delivery. Defective media may be returned for replacement without charge during the ninety (90) day warranty period unless the media have been damaged by accident or misuse. In addition, CyberSoft warrants, for ninety (90) days after acceptance, that the unaltered Licensed Software substantially conforms to the documentation that accompanies it (CyberSoft expressly reserves the right to provide the documentation on the same media as the Licensed Software). Any implied warranties not effectively disclaimed pursuant to Section 8.3 hereof are limited to the duration of the express warranties stated in this Section 8.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, THE WARRANTIES SET FORTH IN THIS SECTION 8.1 DO NOT APPLY WITH RESPECT TO FREE, DEMONSTRATION OR ILLEGALLY OBTAINED COPIES OF THE LICENSED SOFTWARE.
8.2. CyberSoft's entire liability and your exclusive remedy for breach of the foregoing warranties shall be, at the option of CyberSoft, either return of the price paid for such nonconforming portion of the Licensed Software or repair or replacement of the Licensed Software (or the part thereof that does not meet the warranty), when returned to CyberSoft. Your Invoice must accompany any warranty claim. This limited warranty is void if failure of the Licensed Software has resulted from accident, misuse or misapplication. Any replacement software will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer. Outside of the United States, neither these remedies nor any Support Services offered by CyberSoft are available without proof of purchase from an authorized international source.
8.3. THE EXPRESS LIMITED WARRANTIES SET FORTH IN SECTION 8.1 ARE IN LIEU OF AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CYBERSOFT, ITS DISTRIBUTORS AND LICENSORS SPECIFICALLY DISCLAIM, ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH REGARD TO THE LICENSED SOFTWARE AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES. Without limiting the generality of the foregoing, none of CyberSoft, its Distributors or licensors warrant that: (i) operation of any of the Licensed Software shall be uninterrupted or error free, (ii) that functions contained in the Licensed Software shall operate in combinations which may be selected for use by LICENSEE or meet LICENSEE's requirements, or (iii) that the Licensed Software will detect all viruses, Trojan horses, worms or other software routines or hardware components designed to permit unauthorized access to or to disable, erase or otherwise harm any software, hardware or data, if applicable.
8.4. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL CYBERSOFT OR ITS DISTRIBUTORS OR LICENSORS BE LIABLE TO LICENSEE, USERS OR ANY THIRD PARTY FOR SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF INCOME, PROFITS, USE OF INFORMATION OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE LICENSED SOFTWARE OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF CYBERSOFT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CYBERSOFT'S AND ITS DISTRIBUTORS' AND LICENSORS' ENTIRE LIABILITY WITH RESPECT TO THE LICENSED SOFTWARE, THE SUPPORT SERVICES AND THIS LICENSE AGREEMENT SHALL BE LIMITED, IN THE AGGREGATE, TO THE LICENSE FEES ACTUALLY PAID BY LICENSEE FOR THE LICENSED SOFTWARE.
CONSUMER RIGHTS: FOR PERSONAL, FAMILY OR HOUSEHOLD USE OF THE LICENSED SOFTWARE, SOME STATES AND PROVINCES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THESE WARRANTIES GIVE YOU SPECIFIC LEGAL RIGHTS AND REMEDIES; YOU MAY ALSO HAVE OTHER RIGHTS AND REMEDIES WHICH ARISE FROM OPERATION OF LAW AND VARY FROM STATE TO STATE OR PROVINCE TO PROVINCE.
9.1. CyberSoft will defend, at its expense, any action brought against LICENSEE to the extent that it is based on a claim that the use of the Licensed Software within the scope of the License infringes any United States copyright or trademark. CyberSoft will indemnify LICENSEE from any costs, damages and fees incurred by LICENSEE which are attributable to such claim, provided that LICENSEE notifies CyberSoft promptly in writing of the claim. LICENSEE shall permit CyberSoft to defend, compromise or settle the claim and provide all available information, assistance and authority to enable CyberSoft to do so, provided CyberSoft reimburses LICENSEE for such activity. LICENSEE shall have no authority to settle any claim on behalf of CyberSoft.
9.2. Should the Licensed Software become or in CyberSoft's opinion, be likely to become the subject of a claim of infringement of a U.S. copyright or trademark, CyberSoft may (i) procure for LICENSEE, at no cost to LICENSEE, the right to continue to use the Licensed Software, (ii) replace or modify the Licensed Software, at no cost to LICENSEE, to make same non-infringing, or (iii) if the right to continue to use cannot be procured or the Licensed Software cannot be replaced or modified, terminate the License to use such Licensed Software, remove the Licensed Software, and where a specified License Fee was paid by LICENSEE, grant LICENSEE credit thereon as depreciated on a straight-line five (5) year basis.
9.3. CyberSoft shall have no liability for any claim of copyright or trademark infringement based on the (i) use of other than the then latest release of the Licensed Software from CyberSoft, if such infringement could have been avoided by the use of the latest release of the Licensed Software and such latest version had been made available to LICENSEE, or (ii) use or combination of the Licensed Software with software, hardware or other materials not provided by CyberSoft.
9.4. THIS SECTION 9 STATES THE ENTIRE LIABILITY OF CYBERSOFT AND ITS DISTRIBUTORS AND LICENSORS WITH RESPECT TO INFRINGEMENT BY THE LICENSED SOFTWARE OR ANY PART THEREOF AND NONE OF CYBERSOFT, ITS DISTRIBUTORS OR LICENSORS SHALL HAVE ANY ADDITIONAL LIABILITY WITH RESPECT TO ANY ALLEGED OR PROVEN INFRINGEMENT.
LICENSEE shall defend, indemnify and hold CyberSoft, its Distributors and licensors and their respective officers, directors, shareholders, employees, agents and representatives harmless from and against any losses, liabilities, damages, demands, penalties and expenses (including, without limitation, court costs and attorneys' fees) arising out of or in connection with (i) LICENSEE's or Users' use of the Licensed Software, or (ii) any breach by LICENSEE, its Users, employees, agents or contractors of any representation, warranty or covenant of LICENSEE hereunder.
LICENSEE shall comply with all export or re-export restrictions and regulations imposed by the government of the United States. Without limiting the generality of the foregoing and regardless of any disclosure made by LICENSEE to CyberSoft, its Distributors or licensors of an ultimate destination of the Licensed Software, LICENSEE shall not re-export or transfer, whether directly or indirectly, the Licensed Software or any system containing such Licensed Software, to anyone outside the United States of America without first obtaining a license from the U.S. Department of Commerce or any other agency or department of the United States Government, as required.
All CyberSoft products and documentation are commercial in nature. The Licensed Software is a "Commercial Item", as that term is defined in 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are defined in 48 C.F.R. §252.227-7014(a)(5) and 48 C.F.R. §252.227-7014(a)(1), and used in 48 C.F.R. §12.212 and 48 C.F.R. 227.7202, as applicable. Consistent with 48 C.F.R. §12.212 and 48 C.F.R. §227.7202-1 through 227.7202-4 and other relevant sections of the Code of Federal Regulations, as applicable, the Licensed Software is licensed to United States Government end users with only those rights as granted to all other end users, according to the terms and conditions contained in this License Agreement. Manufacturer is CyberSoft Operating Corporation, 1508 Butler Pike, Conshohocken, Pennsylvania 19428.
CyberSoft shall not be liable to LICENSEE for any failure or delay caused by events beyond CyberSoft's reasonable control, including, without limitation, acts or omissions of LICENSEE or its Users, acts of God, acts of government, acts of war or terrorism, sabotage, outages suffered by electric utilities, breakdown or damage to machinery, equipment or software, malfunctioning of software, corruption of data, unavailability of or interruption or delay in telecommunications or third party services, failure of third party software, labor disputes, accidents, shortages of labor, fuel, raw materials or equipment, or technical failures (including, without limitation, defects in any Embedded Software).
This License Agreement is made under and shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, United States of America. Any dispute arising out of or in connection with this License Agreement shall be adjudicated exclusively in the state or federal courts located in Montgomery County, Pennsylvania, and all parties irrevocably consent to personal jurisdiction and venue therein.
The terms of this License Agreement may not be amended except in a writing signed by you and an authorized representative of CyberSoft. For purposes of this Section 15, Peter V. Radatti, President or a person expressly designated by him in writing shall be an authorized representative of CyberSoft.
This License Agreement and the Invoice, if any, constitute the entire agreement between you and CyberSoft with respect to the subject matter hereof and supersede all prior agreements, oral or written, with respect to the matters contained herein or relating thereto. In the event of a conflict between the Invoice and this License Agreement, the terms of this License Agreement shall govern.
No failure or delay of CyberSoft to exercise any right, power or remedy, or partial exercise of any right, power or remedy, will preclude any future exercise of any such right, power or remedy. No express waiver or assent by CyberSoft to any default in any term or condition of this License Agreement shall constitute a waiver or assent to any succeeding default in the same or any other term or condition hereof.
This License Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their successors and permitted assigns. Except as otherwise expressly provided herein, the provisions of this License Agreement will not be construed as conferring any rights on any other persons.
If any provision of this License Agreement will be held illegal, unenforceable, or in conflict with any law of a federal, state, local or international government having jurisdiction over this License Agreement, the validity of the remaining portions or provisions hereof will not be affected thereby. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH PROVISION OF THIS LICENSE AGREEMENT WHICH PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, INDEMNIFICATION OR EXCLUSION OF DAMAGES OR OTHER REMEDY IS INTENDED TO BE ENFORCED AS SUCH. FURTHER, IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE EVENT ANY REMEDY UNDER THIS LICENSE AGREEMENT IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES OR OTHER REMEDIES SHALL REMAIN IN EFFECT.
All notices from you to CyberSoft must be in writing and sent by registered or certified mail, return receipt requested, or international equivalent, or by facsimile or electronic mail (receipt confirmed).
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