USER LICENCE AGREEMENT/SOFTWARE TERMS AND CONDITIONS JANUARY 2022
REPLACES ALL PREVIOUS LICENCE AGREEMENTS. BY DOWNLOADING, INSTALLING, COPYING, ACCESSING OR USING THIS SOFTWARE, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON OR COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY OR LEGAL ENTITY TO THESE TERMS.
IF YOU DO NOT AGREE TO THESE TERMS: DO NOT DOWNLOAD, INSTALL, COPY, AND ACCESS OR USE THE SOFTWARE, AND PROMPTLY RETURN THE SOFTWARE AND PROOF OF ENTITLEMENT TO THE PARTY FROM WHOM YOU ACQUIRED THEM.
- a) “Authorised Partner” means any of Wovex Limited distributors, resellers or other business partners. b) “Grant” means a confirmation notice letter, quote, invoice issued electronically by Wovex Limited to you, confirming Software and Support purchased by you, including the applicable product entitlement, as defined in the Product Entitlement Definitions c) “Documentation” means explanatory materials in printed, electronic or online form accompanying the Software in English and other languages, if available. d) Wovex Limited means Wovex Limited registered in the United Kingdom (e) “Licence Device” means any kind of device capable of processing data and includes any of the following types of computer devices: diskless workstations, personal computer workstations, networked computer workstations, homeworker/teleworker home-based systems, file and print servers, email servers, Internet gateway devices, storage area network servers (SANS), terminal servers or portable workstations connected or connecting to the server(s) or network. f) “Software” means each Wovex Limited software program in object code format licensed by Wovex Limited and purchased from Wovex Limited or its Authorised partners, including Upgrades. g) “Subsidiary” refers to any entity controlled by you through greater than fifty per cent (50%) ownership of the voting securities. h) “Support” or “Technical Support” means the support services offered by Wovex Limited for the support and maintenance of the Software i) “Updates” are related to content and include without limitation all signature sets, policy updates, database updates for the Software which are made generally available to Wovex Limited customer base as a part of purchased Support and which are not separately priced or marketed by Wovex Limited j) “Upgrade” means any and all improvements in the Software which are made generally available to Wovex Limited customer base as part of purchased Support and which are not separately priced or marketed by Wovex Limited. k) Demonstration licence is a single licence agreement sold under specific licence terms set out in (8).
- Licence “Grant”. Subject to the terms and conditions of this Agreement, Wovex Limited hereby grants to you a non-exclusive, non-transferable right to use the Software (for the purpose of this Agreement, use of the Software means to access, install, download, listed in the Grant solely for your own internal business operations. You acknowledge that the Software and all related information are proprietary to Wovex Limited. You are not granted rights to Updates and Upgrades unless you have purchased Support or a service subscription. 3) Copy and Use terms. a) Product entitlement: The use of the Software depends on the licences purchased. If the Software supports multiple platforms or if you receive the Software bundled with other software, the total number of devices on which all versions of the Software is installed may not exceed your product entitlement. c) Term: The licence is effective for a limited period of time (“Term”) in the event that such Term is set forth in the Grant; d) General Restrictions: You may not, nor allow any third party to: (i) decompile, disassemble or reverse-engineer the Software, except to the extent expressly permitted by applicable law, without Wovex Limited’s prior written consent; (ii) remove any product identification or proprietary rights notices of the Software or Documentation; (iii) lease, lend or use the Software for timesharing or service bureau purposes; (iv) modify or create derivative works of the Software, (v) except with Wovex Limited’s prior written permission, publish any performance or benchmark tests or analysis relating to the Software or (vi) otherwise use or copy the Software except as expressly provided herein.
- a) Installation and usage rights; You may copy and use images, shapes and templates provided with the software and identified for such use in models that you create. Unless otherwise specified in a licence unique to a model you may distribute your models. b) Hardware or software you use to pool connections or reduce the number of devices or users that directly access or use the software (sometimes referred to as “multiplexing” or “pooling”) does not reduce the number of licences you need. In such case, one Software licence per assigned user is required (“named user licence”). The software may not be shared, installed or used concurrently on different computers. c) Trial and Conversion. The software may be licenced on a trial basis. Your rights to use trial software are limited to the trial period. The trial software and length of the trial period are set forth during the activation process, and the trial version may contain a subset of the features and functions of the full version. You may have the option to convert your trial rights to subscription or perpetual rights. After the expiration of any trial period without conversion the features of the trial software will stop running. d) Subscription Software. If you licenced the software on a subscription basis, your rights to use the software are limited to the subscription period. You may have the option to extend your subscription or convert to a perpetual licence. e) Before you use the software under a licence, you must assign that licence to one device. That device is the “licensed device”. A hardware partition or blade is considered to be a separate device. You may install and use one copy of the software on the licensed device. If you retire the licensed device due to hardware failure, you may reassign the licence sooner by informing Wovex Limited within 30 days of the reassignment f) the licence agreement covering the demonstration licence is set out in (8)
- Limited Warranty and Disclaimer. a) Limited Warranty: Wovex Limited warrants that, for a period of sixty (60) days from the purchase date (“Warranty Period”), the Software licensed hereunder (including Upgrades provided within the Warranty Period for the remainder of the Warranty Period) will perform substantially in accordance with the Documentation. b) Exclusive Remedy: In case of any breach of the above limited warranty, Wovex Limited will (a) repair or replace the Software or (b) if such repair or replacement would in Wovex Limited’s opinion be commercially unreasonable, refund the price paid by you for the applicable Software. c) Exclusion of Warranty: The above Limited Warranty will not apply if: (i) the Software is not used in accordance with this Agreement or the Documentation, (ii) the Software or any part thereof has been modified by any entity other than Wovex Limited or (iii) a malfunction in the Software has been caused by any equipment or software not supplied by Wovex Limited.
- Limitation of Remedies and Damages. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT OR OTHERWISE, SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, DAMAGES FOR LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF PERSONNEL SALARIES, WORK STOPPAGE AND/OR COMPUTER FAILURE OR MALFUNCTION AND/OR COSTS OF PROCURING SUBSTITUTE SOFTWARE OR SERVICES. Regardless of whether the claim for such damages is based in contract, tort and/or any other legal theory, in no event shall either party’s aggregate liability to the other party for direct damages exceed the lesser of: a) the amount of total fees paid or payable by you for the Software giving rise to such claim during the 12 months immediately preceding the event giving rise to such claim or b) the applicable Wovex Limited list price, at the date of the purchase, for the Software giving rise to such claim ordered by you during the 12 months immediately preceding the event giving rise to such claim, even if the other party has been advised of the possibility of such damages. No provision of this Agreement shall exclude or limit in any way (i) the liability of either party for death or personal injury caused by negligence or (ii) your liability for excess usage of and/or any breach of Wovex Limited’s intellectual property rights in the Software.
- Intellectual Property Indemnity. a) Third-party claims: Wovex Limited shall defend and hold you harmless from any claim by a third party that the Software infringes, whether a patent, copyright or trade secret of that third party, provided that: (i) Wovex Limited is notified promptly, and in any event no later than within 14 days of your receipt of notice of the claim, (ii) Wovex Limited receives the required level of reasonable cooperation from you in order to perform Wovex Limited’s obligations hereunder and (iii) Wovex Limited has sole control over the defence and all negotiations for a settlement or compromise of the claim. The foregoing obligation of Wovex Limited does not apply with respect to Software or portions or components thereof that are: (i) not supplied by Wovex Limited, (ii) used in a manner not expressly authorised by this Agreement or the relevant Documentation, (iii) made in accordance with your specifications, (iv) modified by anyone other than Wovex Limited, if the alleged infringement relates to such modification, (v) combined with other products, processes or materials where the alleged infringement would not exist but for such combination or (vi) where you continue the allegedly infringing activity after being notified thereof and provided with modifications that would have avoided the alleged infringement. b) Remedy and Liability: In the event that the Software is held by a court of competent jurisdiction to constitute an infringement or use of the Software is enjoined, Wovex Limited shall, at its sole discretion, do one of the following: (i) procure for you the right to continue use of the Software, (ii) provide a modification to the Software so that its use becomes non-infringing, (iii) replace the Software with software that is substantially similar in functionality and performance or (iv), if none of the foregoing alternatives is reasonably available to Wovex Limited, Wovex Limited shall refund the residual value of the purchase price paid by you for the infringing Software, depreciated using a straight-line method of depreciation over a three (3) year period from the date of delivery of the Software to you.
- Without prejudice to your payment obligations, you may terminate your licence at any time by uninstalling the Software. Wovex Limited may terminate your licence in the event that you materially breach the terms of this Agreement and you fail to cure such breach within thirty (30) days of receiving notice of such breach. Upon such termination, you shall promptly return or destroy all copies of the Software and Documentation and pay any contractual payment obligations in full within 30 days.
- Demonstration Licence: If the Software has been purchased as “Demonstration Licence”, then the provisions of this section apply and shall supersede any other conflicting term of this agreement. a) The demonstration licence is for demonstration purpose only. b) The Demonstration licence may only be licenced to one person and one Licence Device and may not be transferred to another Licence Device c) The licence may not be passed on, sold, loaned or in any way transfer the licence to a third party. d) Any information gathered from the demonstration licence use shall be used solely by the licensee. e) The licensee may not through demonstration, use application, market, inform or suggest the licence as their proprietary product. f) A licensee of a demonstration must have a liability to a value no less than five million pounds. General Restrictions for a demonstration licence: You may not, nor allow any third party to: (i) decompile, disassemble or reverse-engineer the Software, except to the extent expressly permitted by applicable law, without Wovex Limited’s prior written consent; (ii) remove any product identification or proprietary rights notices of the Software or Documentation; (iii) lease, lend or use the Software for timesharing or service bureau purposes; (iv) modify or create derivative works of the Software, (v) except with Wovex Limited’s prior written permission, publish any performance or benchmark tests or analysis relating to the Software WHERE LEGAL LIABILITY CANNOT BE EXCLUDED, BUT MAY BE LIMITED, WOVEX LIMITED’S LIABILITY AND THAT OF ITS SUPPLIERS AND AUTHORISED PARTNERS FOR DEMONSTRATION LICENCES SHALL BE LIMITED TO THE SUM OF FIFTY (50) POUNDS STERLING OR THE EQUIVALENT IN LOCAL CURRENCY IN TOTAL.
- Privacy and Collection of Personal or System Information. a) The Software, Support or service subscription may employ applications and tools to collect personally identifiable, sensitive or other information about you and users (e.g., including, without limitation, your and users’ name, address, e-mail address and payment details), their computers, files stored on their computers, or their computers’ interactions with other computers (e.g., including, without limitation, information regarding network, licenses used, hardware type, model, hard disk size, CPU type, disk type, RAM size, 32 or 64 bit architecture, operating system types, versions, locale, BIOS version, BIOS model, total scanners deployed, database size, system telemetry, device ID, IP address, location, content, Wovex Limited products installed, Wovex Limited components, processes and services information, frequency and details of update of Wovex Limited components, information about third-party products installed, extracts of logs created by Wovex Limited, usage patterns of Wovex Limited products and specific features, etc.) (Collectively, “Data”). b) The collection of this Data may be necessary to provide you and users with the relevant Software, Support or service subscription functionalities as ordered (e.g., including, without limitation, detecting and reporting threats and vulnerabilities on your and users’ computer network), enable Wovex Limited to improve our Software, Support or service subscription (e.g., including, without limitation, content synchronization, device tracking, troubleshooting, etc.) and to further or improve overall security for you and users. You may be required to uninstall the Software or disable Support or its service subscription to stop further Data collection that supports these functions. c) By entering into this Agreement, or using the Software, Support or service subscription, you and users agree to the Wovex Limited Privacy Policy and to the collection, processing, copying, backup, storage, transfer and use of this Data by Wovex Limited and its service providers, in, from and to the United States, Europe, or other countries or jurisdictions potentially outside of your or user’s own as part of the Software, Support or service subscription. You are solely responsible for securing any privacy-related rights and permissions from your users as may be required by local law or by your internal policies. Wovex Limited will only collect, process, copy, backup, store, transfer and use personally identifiable information in accordance with the Wovex Limited privacy policy.
- Audit; Wovex Limited may, at its expense, upon reasonable prior written notice to you and during standard business hours, audit you with respect to your compliance with the terms of this Agreement no more than once per year. You understand and acknowledge that Wovex Limited utilizes a number of methods to verify and support software use by its customers. These methods may include technological features of the Software that prevent unauthorised use and provide Software deployment verification. Upon reasonable request, you will provide a system-generated report verifying your Software deployment, such request to occur no more than two (2) times per year. Wovex Limited will not unreasonably interfere with the conduct of your business. 13) Export Controls. You acknowledge that the Software is subject to US and, European Union export regulations. You shall comply with applicable export and import laws and regulations for the jurisdiction in which the Software will be imported and/or exported. You shall not export the Software to any individual, entity or country prohibited by applicable law or regulation. You are responsible, at your own expense, for any local government permits, licenses or approvals required for importing and/or exporting the Software.
- Governing Law. This Agreement will be governed by and construed in accordance with the substantive laws in force: (a) in the State of New York, if you purchased the Software in the United States, Mexico, Central America, South America or the Caribbean, (b) in the United Kingdom, if you purchased the Software in Canada, Europe, Middle East, Africa, Asia (other than Japan) or the region commonly referred to as Oceania and (c) in Japan, if you purchased the Software in Japan. If you purchased the Software in any other country, then the substantive laws of the United Kingdom shall apply, unless another local law is required to be applied. This Agreement will not be governed by the conflict of laws rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. The Uniform Computer Information Transactions Act as enacted shall not apply, The United States District Court for the Southern District of New York, when New York law applies, the courts for the United Kingdom when the law of the United Kingdom applies, the courts of Japan when Japanese law applies, shall each have non-exclusive jurisdiction over all disputes relating to this Agreement. 15) Confidentiality Each Party hereto acknowledges that by reason of its relationship with the other party hereunder, it may have access to confidential information and materials concerning the other party’s business, technology, and/or products that is confidential and of substantial value to the other Party, which value could be impaired if such information were disclosed to third parties (“Confidential Information”). Written or other tangible Confidential Information must at the time of disclosure be identified and labelled as Confidential Information belonging to the disclosing Party. When disclosed orally or visually, Confidential Information must be identified as confidential at the time of the disclosure, with subsequent confirmation in writing within fifteen (15) days after disclosure. Each Party agrees that it will not use in any way for its own account or the account of any third party, such Confidential Information, except as authorised under this Agreement, and will protect Confidential Information at least to the same extent as it protects its own Confidential Information and to the same extent that a reasonable person would protect such Confidential Information. Neither Party may use the other Party’s Confidential Information except to perform its duties under this Agreement. The Confidential Information restrictions will not apply to Confidential Information that is (i) already known to the receiving Party, (ii) becomes publicly available through no wrongful act of the receiving Party, (iii) independently developed by the receiving Party without benefit of the disclosing Party’s Confidential Information, (iv) has been rightfully received from a third party not under obligation of confidentiality or (v) is required to be disclosed by law, provided the Party compelled to disclose the Confidential Information provides the Party owning the Confidential Information with prior written notice of disclosure adequate for the owning Party to take reasonable action to prevent such disclosure, where reasonably possible. Unless otherwise agreed to by both Parties, upon termination of this Agreement or an applicable Addendum, each Party will return the other Party’s Confidential Information
- a) Except for actions for non-payment or breach of Wovex Limited’s proprietary rights in the Software and Documentation, no action, regardless of form, arising out of this Agreement may be brought by either party more than 10 years after a party knew or should have known of the claim. b) Any terms of this Agreement which by their nature should survive the termination of this Agreement shall survive such termination. c) This Agreement, including all documents incorporated by reference, represents the entire agreement between the parties and expressly supersedes and cancels any other communication, representation or advertising whether oral or written, on the subjects herein. If you issue an order to an Authorised partner or to Wovex Limited and the terms and conditions of the order conflict with the terms and conditions of a) this Agreement or b) the Grant, then the terms and conditions specified in this Agreement and in the Grant shall control. This Agreement may not be modified except by a written addendum issued by a duly authorised representative of Wovex Limited. No provision hereof shall be deemed waived unless such waiver shall be in writing and signed by Wovex Limited. If any provision of this Agreement is held invalid, the remainder of this Agreement shall continue in full force and effect.
WOVEX Limited 2022