This End User License Agreement (“EULA”) sets forth the exclusive terms and conditions under which Discern Security, Inc. (“Licensor”) grants a limited license to the end user (“Licensee”) of the Licensor’s software and related data media and documentation (collectively, the “Software”) in conjunction with Licensee’s subscription to Licensor’s cloud-based service under which the Software is downloaded for Licensee’s use (the “Service”). The Licensee’s use of the Software constitutes acceptance of the terms and conditions of this EULA. Any conflicting term or condition, including those that may be embedded in any purchase order, order acknowledgment, invoice or other forms used by the parties, shall be of no force or effect unless agreed to in a writing by the party against which any such term or condition is asserted. The Discern Security client software is only distributed as Enterprise software under business to business agreements to satisfy the needs of client organizations, and that the software must only be installed on computers with the consent of the computer’s users’ or within the context of an employment agreement.
All right title and interest in and to the Software and all modifications and derivatives thereof, including all patent, copyright, trade secret and other intellectual property rights therein resides and will reside in Licensor and its licensors as applicable (the “Software IP”).
Licensor hereby grants Licensee a nonexclusive, nontransferable license under the Software IP to utilize the Software solely in conjunction with the Service during the term specified in the subscription quotation issued by Licensor or its authorized reseller to Licensee (the “Quotation”). The Software may not be decompiled, disassembled, decoded, reverse engineered, or modified, nor may it be disclosed, distributed or made available to third parties. Licensor may upon written notice terminate this grant if the forgoing restrictions are violated or the fees specified in the Quotation are not paid when due. Licensee acknowledges that any violation of the foregoing restrictions will cause Licensor irreparable harm entitling Licensor to injunctive relief without posting bond or other security.
The license granted hereunder is subject to Licensee’s timely payment of fees as specified in the Quotation issued by Licensor or by Licensor’s authorized reseller. Fees are due within 60 days of the date of the PO. Licensee is required to pay any and all transaction taxes, regardless of how or who imposed on, which are taxes that arise as a result of the EULA except for taxes imposed on Licensor’s net income. The transaction taxes refers to the Goods and Services Tax payable on the services rendered by the Licensor (hereon in referred to as “Taxes”). All amounts paid pursuant to this EULA are payable in full and without reduction for Taxes. If Licensor has a legal obligation to pay or collect Taxes for which Licensee is responsible under this section, the appropriate amount shall be invoiced to and paid by Licensee, unless Licensee provides Licensor with a valid tax exemption certificate authorized by the appropriate taxing authority. If Licensee is required by a governmental taxing authority to withhold an amount from any payment due hereunder and pay such amount to the governmental authority, the prices will be grossed-up so that the net payment equals the original price.
Licensor shall have the right to request Licensee’s records in order to verify Licensee’s compliance with its obligations and restrictions under this EULA, including inspecting the console and ensuring it is at or below the licensed user count. Licensee will comply with success requests (Limited to a maximum of one per year) within 30 days. Licensee shall promptly pay the difference if such verification reveals an underpayment
The Software is warranted to conform to and perform in accordance with the description contained in the Quotation for a period of this Agreement from the distribution of the Software to Licensee, provided that Licensee notifies Licensor in writing of the nature of any claimed defect during this period and Licensor is able to reproduce and verify the defect, in which case, as Licensee’s sole remedy, Licensor will make commercially reasonable efforts to eliminate or work around the defect, failing which Licensor will refund the fees paid by Licensee for the Service involving the defective Software
LICENSOR MAKES NO OTHER WARRANTIES RELATING TO THE SOFTWARE OR SERVICE, EXPRESS OR IMPLIED, AND EXPRESSLY EXCLUDES ANY WARRANTY OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, OR MERCHANTABILITY.
Licensor will indemnify Licensee and, at Licensor’s election, defend Licensee against a third-party claim asserted against Company in a suit or action if the claim is for direct patent infringement, for direct copyright infringement, or for Licensor’s trade secret misappropriation, and the claim is asserted against the Software alone and not in combination with anything else, or solely a combination of Licensor’s Products. To qualify for such defense and payment, Licensee must: (i) give Licensor prompt written notice of any such claim, and (ii) allow Licensor to control, and fully cooperate with Licensor in, the defense and all related settlement negotiations. Upon notice of an alleged infringement, or if, in Licensor’s opinion, such a claim is likely, Licensor shall have the right, at its option, to obtain the right to continue the distribution of Products, substitute other products or services with similar operating capabilities and/or performance, or modify the Product so that it is no longer infringing or subject to a third party claim. In the event that none of the above options are commercially practicable in Licensee’s sole discretion, Licensor may terminate this EULA and all accompanying licenses. In the event of such termination, Licensee may as its sole and exclusive remedy obtain a refund from Discern Security of the fees paid for Service subscriptions prorated for the remainder of any pre-paid subscription term unused by the Licensee. This Section states Licensor’s entire liability for intellectual property misappropriation or infringement. Licensor shall not be responsible for any claim of infringement that arises from
(i) unauthorized modifications to the Software, (ii) use of the Software in a manner or in combination with software, firmware or hardware not provided by Licensor to the extent such claim would not have occurred except for such modifications or use; (iii) use of other than the latest available version of the Software made available to Licensee; or (iv) any use of the Software not in accordance with this Agreement or the applicable documentation or specifications.
IN NO EVENT WILL LICENSOR BE LIABLE TO LICENSEE FOR ANY AMOUNT IN EXCESS OF THE FEES PAID BY LICENSEE FOR THE SERVICE GIVING RISE TO SUCH LIABILITY IN THE SIX MONTHS PRIOR TO THE CLAIM. Licensor will not be liable for the cost of procuring substitute or alternative software or services and neither party will be liable to the other party for any special, indirect, incidental or consequential damages, under contract, tort, statute or other legal theory, even if such party is aware of the likelihood of such damages occurring. This Section shall not, however, apply to Licensee’s violation of the restrictions above under Grant of License or to Licensor’s obligations above under IP Indemnity.
This EULA and the Quotation incorporating this EULA constitutes the complete and binding contract between Licensor and Licensee regarding the Service and the licensing of the Software thereunder. It may be modified only in a written instrument signed on behalf of both parties
This EULA and any Quotation incorporating this EULA shall be governed and interpreted in accordance with the laws of the State of California without application of its conflicts of law principles. The United Nations Convention on the International Sale of Goods will apply to the extent that it establishes the terms and conditions of this EULA and the Quotation incorporating this EULA as the exclusive provisions of the contract between the parties relating to procurement of licensing rights to the Software
All disputes arising under or related to this EULA and any quotation incorporating this EULA shall be resolved under the exclusive jurisdiction of the courts located within the county of Santa Clara, California and judgment on the arbitration award may be entered in any court having jurisdiction. However, either party may at any time bring an action for injunctive relief in any court having jurisdiction.
