MODSECURITY CONSOLE BASED END-USER LICENSE AGREEMENT
Important: READ CAREFULLY BEFORE ACCEPTING OR DOWNLOADING, ACCESSING, INSTALLING OR USING
MODSECURITY CONSOLE INCLUDES A COMPUTER PROGRAM AND RELATED DOCUMENTATION (COLLECTIVELY, .SOFTWARE.) THAT BELONG TO BREACH SECURITY INC. (.BREACH SECURITY.), THE USE OF WHICH IS SUBJECT TO THIS END-USER LICENSE AGREEMENT (.AGREEMENT.). CLICKING ON THE .I ACCEPT. BUTTON, OR DOWNLOADING, ACCESSING, INSTALLING OR USING THE SOFTWARE CONSTITUTES ACCEPTANCE BY YOU (.YOU. MEANS YOU OR THE BUSINESS ENTITY ON WHOSE BEHALF YOU DOWNLOAD, ACCESS, USE OR INSTALL THE SOFTWARE, AS APPLICABLE) TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ACCEPT BY CLICKING THE .I ACCEPT. BUTTON, THE SYSTEM RECEIVING YOUR RESPONSE IS NOT CAPABLE OF INTERPRETING OR REACTING TO ANY TERMS OR INPUT SUBMITTED OR TRANSMITTED BY YOU OTHER THAN ACCEPTANCE OR REJECTION. IF YOU DO NOT AGREE (OR CANNOT COMPLY WITH) ALL OF THE TERMS OF THIS AGREEMENT THEN YOU ARE NOT AUTHORIZED TO USE THE SOFTWARE AND YOU MUST CLICK THE ..CANCEL. BUTTON AND/OR MUST NOT DOWNLOAD, INSTALL, ACCESS OR USE THE SOFTWARE. WRITTEN APPROVAL IS NOT A PREREQUISITE TO THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT.
1. License Grant. Subject to the terms and conditions of this Agreement, Breach Security grants You a limited, non-transferable, non-sublicensable, non-exclusive license to install and use the Software (in object code form only) as contemplated in the applicable documentation and the applicable invoice for the Software. You are not granted any rights or licenses in the Software other than those rights expressly granted in this Agreement. Notwithstanding anything to the contrary in this Agreement or otherwise, if Breach Security grants you only an evaluation license in the applicable invoice, Your license is limited to the installation and use of the Software as specifically set forth in the invoice solely for Your individual use for evaluation purposes, for a period of thirty (30) days, and such evaluation license will terminate automatically thereafter.
2. Permitted Uses. Unless otherwise provided in an invoice from Breach Security, You may only install and use the Software on a single computer You may only use the Software with up to three (3) ModSecurity sensors. You may not use the Software with more than three (3) ModSecurity sensors If You are explicitly granted an enterprise license by Breach Security in an invoice, You may install and use the Software on an enterprise-wide basis without limitation on the number of Sensors utilized at Your enterprise.s geographic location. You may not install or use the Software on more computers than you have been licensed to use by Breach Security. All uses of the Software must be in accordance with the documentation provided for the Software. The Software is licensed only to You and may not be transferred to any other person or entity without Breach Security.s prior written authorization. Any authorized transferee of the Software shall be bound in writing by the terms and conditions of this Agreement. In no event may You transfer, assign, rent, lease, sell, or otherwise dispose of the Software on a temporary or permanent basis except as expressly provided herein. This Agreement will automatically terminate in the event of any violation of this Agreement by You.
3. Ownership.
3.1 Ownership. Breach Security and its licensors retain all title to and, except as expressly and unambiguously licensed herein, all rights and interest in (i) the Software, all copies and derivative works thereof (by whomever produced), and (ii) all copyright rights, patent rights, trade secret rights and all other intellectual property and proprietary rights anywhere in the world in the Software. The Software is licensed to You and is not sold.
3.2 Open Source Components. Certain components of the Software (which are identified by Breach Security in the documentation) are not owned by Breach Security and are being distributed to You under the terms of other licenses. Each such component has its own copyright and applicable license conditions, and You must review the licenses within the documentation to understand your rights under them. If Breach Security does not include the source code versions of such software in its materials, You may request that Breach Security provide a machine-readable copy of the source code for certain ones of the components pursuant to the terms of their respective licenses. Your use of the Software is subject to the licenses disclosed in the documentation. All such components incorporated into the Software are distributed on an .as is. basis WITHOUT WARRANTY OF ANY KIND, and are subject to the further disclaimers in their applicable documentation.
4. Restrictions and Cooperation. You shall not (and shall not allow any third party to): (i) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code, or underlying ideas or algorithms of the Software except to debug modifications made pursuant to section 6 of the LGPL (see http://www.gnu.org/licenses/lgpl and except to the extent expressly permitted under applicable law; (ii) provide, lease, lend, use for timesharing or otherwise use or allow others to use the Software to or for the benefit of third parties; (iii) except as specified in the applicable user documentation and the LGPL, modify, incorporate into or with other hardware or software, or create a derivative work of any part of the Software; (iv) disseminate performance information or analysis from any source relating to the Software; or (v) remove any product identification, copyright notice or other proprietary legend from the Software. You agree to cooperate with Breach Security and its licensors in connection with their efforts to protect their copyright and other legal rights in the Software. Breach Security may, from time to time, implement additional security measures for the Software, and You agree to cooperate with such measures and be responsible for installing upgrades that include such measures.
5. Further Obligations. You shall defend, indemnify and hold Breach Security harmless from and against any and all claims, damages, liabilities, costs and expenses (including, without limitation, attorneys. fees) arising out of Your breach of Your obligations under this Agreement.
6. Term and Termination. This Agreement will become effective on the date You click on the .I Accept. button below or otherwise download, access, install or use the Software for the first time, and will remain in force until terminated, unless You are using the Software under an evaluation license, in which case Your license will automatically expire after thirty (30) days. You may terminate this Agreement at any time, and Breach Security may terminate this Agreement if You breach any of the terms or conditions hereunder. You agree to destroy or return to Breach Security the original and all copies of the Software immediately upon any termination of this Agreement, and certify the same in writing if requested.
7. Confidentiality. You acknowledge that the Software contains valuable trade secrets of Breach Security and other information proprietary to Breach Security and its licensors. You shall: (i) keep confidential such trade secrets and proprietary information, including without limitation all information concerning ideas and algorithms related to the Software; (ii) disclose such information only to Your employees and agents to the extent required to use the Software under the terms of this Agreement; and (iii) bind Your employees, consultants, agents and other third parties in writing to maintain the confidentiality of such trade secrets and proprietary information and not use or disclose such information except as permitted in this Agreement.
8. Limited Warranty and Disclaimer.
8.1 Limited Warranty of Conformity. Breach Security warrants to You for a period of ninety (90) days from the date of Your receipt of the Software (the .Warranty Period.) that the Software as delivered will conform substantially to Breach Security.s then-current published functional specifications set forth in the documentation for the Software when installed and operated as contemplated in such documentation. In the event of any nonconformity, Breach Security (or its designee) may, in its sole discretion, either (i) remedy the nonconformity within a reasonable period after notice and verification thereof or (ii) refund the amount You paid for the Software and terminate this Agreement and the license granted herein; provided, however, that You must return the original and all copies of the Software to Breach Security or its authorized representative before You will be entitled to receive any such refund. Notwithstanding anything to the contrary, if You are using the Software under an evaluation license, Breach Security provides the Software .as is. with no warranties to You whatsoever. THIS SECTION 8.1 STATES YOUR SOLE REMEDY FOR A BREACH OF THE LIMITED WARRANTY OF THE SOFTWARE.
8.2 Disclaimer of Other Warranties. EXCEPT AS SET FORTH IN SECTION 8.1, THE SOFTWARE IS PROVIDED BY BREACH SECURITY AND ITS LICENSORS .AS IS. WITHOUT ANY WARRANTY OF ANY KIND INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NEITHER BREACH SECURITY NOR ITS LICENSORS WARRANT THAT THE SOFTWARE IS ERROR-FREE OR THAT IT WILL OPERATE WITHOUT INTERRUPTION. NEITHER BREACH SECURITY NOR ITS LICENSORS WARRANT, GUARANTEE OR MAKE ANY REPRESENTATION REGARDING THE USE, OR THE RESULTS OF THE USE OF THE SOFTWARE INCLUDING, WITHOUT LIMITATION, THE CORRECTNESS, ACCURACY OR RELIABILITY OF SUCH USE OR RESULTS. YOU ACKNOWLEDGE AND AGREE THAT BREACH SECURITY IS NOT RESPONSIBLE FOR AND WILL HAVE NO LIABILITY FOR HARDWARE, SOFTWARE, CONTENT OR OTHER ITEMS OR ANY SERVICES PROVIDED BY ANY PERSONS OTHER THAN BREACH SECURITY.
9. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, BREACH SECURITY AND ITS LICENSORS WILL NOT BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR: (I) ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE AMOUNTS YOU PAID FOR THE SOFTWARE; (II) ANY LOST DATA OR OTHER EXEMPLARY, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOSS OF DATA, OR ANY AND ALL LOST PROFITS, EVEN IF BREACH SECURITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (III) THE COST OF PROCURING SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY. THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION 9 SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
10. Export. You represent, warrant and agree that You will not, directly or indirectly, import, export, re-export or transmit the Software or any part thereof to any country in which such export, re-export or transmission is restricted by any applicable U.S. regulation or statute without the prior written consent of both Breach Security and, if required, of the Bureau of Export Administration of the U.S. Department of Commerce, or such other governmental entity as may have jurisdiction over such export or transmission.
11. Miscellaneous. A party.s failure to exercise or its delay in exercising any rights hereunder will not be deemed to be a waiver of such right. If any provision of this Agreement shall be held by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement shall be construed pursuant to the laws of the State of California and the United States without regard to conflicts of laws provisions thereof and without regard to the United Nations Convention on Contracts for the International Sale of Goods. You irrevocably submit to the jurisdiction of any state or federal court sitting in the State of California, County of San Diego, United States of America, and consent to venue in such forum with respect to any action or proceeding that relates to this Agreement. No amendment to or modification of this Agreement will be binding unless in writing and signed by a duly authorized officer of Breach Security. The provisions of Sections 3-9 and 11 will survive termination of this Agreement. This Agreement is in the English language only, which language shall be controlling and any revision of this Agreement in any other language will not be binding. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. NO VENDOR, DISTRIBUTOR, DEALER, RETAILER, SALES PERSON OR OTHER PERSON IS AUTHORIZED TO MODIFY THIS AGREEMENT OR TO MAKE ANY WARRANTY, REPRESENTATION OR PROMISE WHICH IS DIFFERENT THAN, OR IN ADDITION TO, THE REPRESENTATIONS OR PROMISES IN THIS AGREEMENT.
12. Breach Security Customer Contact. Please direct any questions concerning this Agreement to: Breach Security, Inc., 2011 Palomar Airport Road, Suite 200, Carlsbad, California 92011 USA. You may also reach us at http://www.breachsecurity.com.
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