YOU MUST CAREFULLY READ THE TERMS AND CONDITIONS OF THIS CLICK WRAP EVALUATION AGREEMENT (INCLUDING ALL ATTACHMENTS AND/OR ADDENDA HERETO, THIS “AGREEMENT”) BEFORE INSTALLING OR USING THE SYSTEM (AS DEFINED BELOW). BY CLICKING “SUBMIT” OR “I AGREE” AND/OR INSTALLING OR USING THE SYSTEM, YOU ACKNOWLEDGE YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN DO NOT CLICK “SUBMIT” OR “I AGREE” AND DO NOT INSTALL OR USE THE SYSTEM. IF YOU ARE A LANCOPE-AUTHORIZED RESELLER (“RESELLER”), YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN END-USER ORGANIZATION (“END-USER”), AND ALL REFERENCES TO “EVALUATOR”, “YOU” OR “YOUR” IN THIS AGREEMENT WILL MEAN COLLECTIVELY THE RESELLER AND THE INDIVIDUAL END USER OF THE SYSTEM. ALL REFERENCES TO “LANCOPE” WILL MEAN LANCOPE, INC., A DELAWARE CORPORATION. EVALUATOR ACKNOWLEDGES THAT THIS AGREEMENT WILL BE DEEMED EFFECTIVE UPON YOUR CLICKING “SUBMIT” OR “I AGREE” (THE “EFFECTIVE DATE”), AND THAT SUCH SUBMISSION WILL CONSTITUTE THE PARTIES’ AGREEMENT TO CONDUCT TRANSACTIONS VIA ELECTRONIC MEANS AND YOUR ELECTRONIC SIGNATURE TO THIS AGREEMENT.
- 1. Purpose. In accordance with the terms and conditions set forth in this Agreement, the Evaluator wishes to evaluate certain Lancope hardware, software, and/or data, as applicable, products and related documentation provided under this Agreement (collectively, the “System”) solely for the purposes of determining whether such System meets the End-User’s business requirements.
- 2. Grant of License; Intellectual Property Rights.
2.1 License of Software. Subject to the terms and conditions of this Agreement, Lancope grants to the Evaluator a limited, non-exclusive and non-transferable license (with no right to sublicense) during the Term (as defined below) to (i) use one (1) of each System, any computer software included within the System in object code form only, solely as incorporated in the specific Systems provided to Evaluator (“Software”), and/or data or information accessible by and through the Systems provided to Evaluator, and (ii) to use any printed or electronic documentation which Lancope provides or makes available regarding the System, solely for the Evaluator’s internal use for the purposes set forth in Section 1 above. Any use of the System by a person other than Evaluator and its employees who are directly involved in the discussions, analysis, evaluation and/or performance of the System requires an additional license from Lancope. The foregoing license shall be further limited to the extent of any usage restrictions in effect from time to time, including, without limitation, maximum flow records per second or other metrics, determined by Lancope, as described in the applicable documentation (“System Limitations”).
2.2 Ownership of Intellectual Property. Evaluator acknowledges that the System is protected by intellectual property rights that are owned or licensed by Lancope including, without limitation, all copyrights, trademarks, patents, trade secrets and other proprietary rights as well as all subsequent modifications, updates and enhancements thereto, whether made by Lancope or the Evaluator. Evaluator’s rights are solely as set forth in Section 2.1 hereto and do not include any rights of ownership in the System. Evaluator will not disclose any confidential or proprietary information of Lancope, and will not, nor permit any third party to, (i) copy, transfer, sell, modify, decompile, reverse engineer, or disassemble the Software or the System in any manner whatsoever, or otherwise determine or attempt to determine the source code (or the underlying ideas, algorithms, structure or organization) of any object code contained in the Software, (ii) create, set-up or design any hardware, software or product with the intent, or resulting effect, of circumventing the intended limitations, uses and configurations of the System (including, without limitation, the System Limitations), (iii) prepare any works based on, or derived from, the System, (iv) use the System in, or use the System to provide, a computer service business, rental or commercial timesharing arrangement, any software-as-a-service offering, service bureau, or as part of an application services provider, cloud computing or other service offering, or (v) permit any person, other than employees of the Evaluator who are directly involved in the discussions, analysis, evaluation and/or performance of the System for the purposes set forth in this Agreement, to access or use the System, except as permitted herein. Except as expressly set forth herein, Evaluator will not market, sublicense, distribute, reproduce, rent or lease any Software or data. Evaluator may not remove, alter or use Lancope’s trademarks or other intellectual property rights notices affixed to or included in the System. Lancope retains all right, title and interest in and to the System including, but not limited to, all rights under patent law, copyright law, moral rights law, trade secret law, trademark law, unfair competition law or other similar law, subject to the limited license granted hereby. No express or implied license or right of any kind is granted to Evaluator regarding the System except as set forth in Section 2.1 above. All rights not expressly granted in this Section 2 are reserved by Lancope. The Evaluator may not use the System for any other purpose, including, without limitation, for production or commercial use by the Evaluator or for product development purposes. This Section 2, other than the license grant, will survive any termination of this Agreement.
2.3 Data Feeds. Evaluator acknowledges that it may be entitled to certain data or information accessible by and through the System. In the event the System includes access to such data or information, Evaluator acknowledges acceptance of the additional terms and conditions set forth on the Data Feed Addendum attached hereto.
3. Fees. Except as otherwise agreed to in writing by the parties, there will be no charge by Lancope for evaluation by the Evaluator of the System and the limited license granted under this Agreement. The Evaluator shall be solely responsible for all of the Evaluator’s costs associated with the implementation and evaluation of the System, whether direct or indirect, known or unknown, for hardware, software, data or any other infrastructure, or for employee and/or consulting time and expense, incurred before, during and/or after the implementation of the System.
4. Delivery and Installation. The System may be made available electronically, in which case delivery shall occur at the time the System is made available to Evaluator (as determined by Lancope’s records) or the System may be physically delivered, in which case delivery shall occur at the time the System is physically delivered to Evaluator (as determined by Lancope’s records). Evaluator will be responsible for installation and set-up of the System.
5. Maintenance and Support. Lancope does not provide maintenance, support or other services under this Agreement and Lancope has no obligation to support, maintain, correct any errors in or deliver any updates or upgrades to the System, Software, data, and/or documentation.
6. Disclaimer of Warranties. THE SYSTEM (INCLUDING ALL SOFTWARE, DATA, DOCUMENTATION, CONFIDENTIAL INFORMATION, FUNCTIONS, MATERIALS AND INFORMATION MADE AVAILABLE THEREON OR ACCESSED BY MEANS THEREOF) ARE PROVIDED BY LANCOPE “AS IS”. LANCOPE MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING WITHOUT LIMITATION, THE SYSTEM, SOFTWARE, DATA, DOCUMENTATION, THE DESIGN OR CONDITION OF THE PROGRAMMING, OR ANY OUTPUT BASED ON USE OF THE SYSTEM. NO WARRANTY IS MADE REGARDING THE RESULTS OF THE SYSTEM, SOFTWARE, OR DATA, OR THAT USE OR AVAILABILITY OF THE SYSTEM, SOFTWARE, OR DATA WILL BE UNINTERRUPTED, OR THAT ANY ERRORS OR DEFECTS IN THE SYSTEM, SOFTWARE, OR DATA WILL BE CORRECTED, OR THAT THE SYSTEM WILL MEET EVALUATOR’S REQUIREMENTS. LANCOPE SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF NON-INFRINGEMENT, TITLE, AVAILABILITY, ACCURACY, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7. LIMITATION OF LIABILITY. IN NO EVENT WILL LANCOPE OR ANY LANCOPE REPRESENTATIVE, OFFICER, DIRECTOR, SHAREHOLDER OR EMPLOYEE BE LIABLE FOR LOSS OR CORRUPTION OF DATA, LOSS OF PROFITS, BUSINESS INTERRUPTIONS OR FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR INCIDENTAL DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, WHETHER ARISING OUT OF THE USE OF OR INABILITY TO USE THE SYSTEM, EVEN IF LANCOPE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. Non-Disclosure. A party (the “Disclosing Party”) may disclose to the other party (the “Recipient”) certain Confidential Information (as defined below) during the Term of this Agreement. The Recipient shall hold in confidence and not disclose (including without limitation distribute, transmit or transfer) or use for any purpose, the Disclosing Party’s Confidential Information or any portion thereof. “Confidential Information” means information of or provided by a party that is confidential or proprietary, including, without limitation, business plans, product plans, designs, algorithms, inventions (whether or not patentable) costs, prices, finances, marketing and advertising plans, software, data, information regarding customers, executives and employees and a trade secret as defined by applicable law. The Recipient shall only disclose the Disclosing Party’s Confidential Information to the Recipient’s employees and agents or professional advisors, to the extent such persons have a need to know such information, for the purposes described in this Agreement, and further provided that each such employee or agent or professional advisor has been obligated in writing to Recipient to treat Confidential Information in accordance with obligations at least as protective as the provisions of this Agreement. The obligations in this Section 8 shall not apply if and to the extent that Recipient can evidence that: (i) Recipient has received the prior written approval of an authorized representative of Disclosing Party, in each instance, to use or disclose the information in a manner not already expressly authorized by the terms of this Agreement; (ii) the information communicated was already known to Recipient, without obligation to keep it confidential, at the time of its receipt directly or indirectly from Disclosing Party; (iii) the information communicated was received by Recipient in good faith from a third party lawfully in possession thereof and having no obligation to keep such information confidential; (iv) the information is independently developed by the Recipient without access to the Confidential Information; (v) the information communicated was publicly known at the time of its receipt by Recipient or has become publicly known other than by a breach of this Agreement or other action by Recipient; (vi) the information is disclosed by Recipient pursuant to a requirement of a governmental agency or by operation of law; provided however, that, with respect to clause (vi), Recipient shall first notify Disclosing Party prior to disclosure in order to give Disclosing Party a reasonable opportunity to seek an appropriate protective order and/or waive compliance with the terms of this Section 8 and shall disclose only that part of the Confidential Information which Recipient is required to disclose. In the event the parties have entered into a separate Non-Disclosure Agreement (“NDA”) regarding the restrictions on disclosure of each party’s Confidential Information, and any terms of such NDA conflict with the terms of this Agreement, the terms of this Agreement shall prevail.
9. Term and Termination. This Agreement shall begin on the Effective Date and, unless earlier terminated, shall continue for thirty (30) days after the Effective Date or such longer period as may be specified in writing by Lancope (the “Term”). Notwithstanding the foregoing, Lancope reserves the right to immediately terminate this Agreement by notice to the Evaluator. Upon any termination or expiration of this Agreement, Lancope may automatically suspend or terminate the functionality of the System, and the Evaluator will (i) immediately cease all use of the System; (ii) promptly uninstall and delete any Software directly loaded on Evaluator’s hardware and return any Hardware portions of the System to Lancope, as applicable; and (iii) promptly return, or to the extent that return is not reasonably practicable due to the nature of the material, destroy the Software and all Confidential Information and other data, documentation and information related to the System in the possession or control of the Evaluator. Upon Lancope’s request Evaluator will promptly certify in writing such return and/or destruction. If the Evaluator does not notify Lancope in writing prior to the expiration of the Term of this Agreement of its intention not to license and purchase the System, or if the parties have not otherwise agreed in writing prior to the expiration of the Term of this Agreement to negotiate in good faith and to enter into a written System License and Purchase Agreement for the System, the terms and conditions of Lancope’s then-current shrink wrap or click wrap license agreement (the “License Agreement”), contained within and delivered with the System, shall bind the parties effective immediately upon the expiration of the Term of this Agreement; provided, however, that Lancope will use commercially reasonable efforts to notify Evaluator of the same, and Evaluator may terminate such License Agreement within thirty (30) days after the effectiveness thereof upon written notice to Lancope. Notwithstanding the foregoing, the Evaluator’s obligations under this Agreement with regard to (i) Confidential Information that are trade secrets remain in effect for so long as such information remains a trade secret under applicable law, and (ii) Confidential Information (excluding trade secrets) remain in effect for three (3) years after the Effective Date of this Agreement.
10. Indemnification. Evaluator shall indemnify, defend and hold harmless Lancope and its affiliates (and their respective officers, directors, employees and agents) from and against any and all claims, lawsuits, investigations or demands (and any and all loss, liability, damage, cost and expense arising therefrom, including amounts paid in settlement and reasonable attorneys’ fees) (“Claims”) to the extent such Claims result from, arise out of or are related to this Agreement or Evaluator’s possession or use of the System, provided that such Claims were not caused solely by the fault of Lancope. This indemnity shall survive the termination of this Agreement. Evaluator agrees to provide the foregoing indemnification in consideration of Lancope providing the System to Evaluator at no charge.
11.1 Assignment. Neither this Agreement, nor any license or other rights granted hereunder, may be assigned by the Evaluator without the prior written consent of Lancope. Lancope may assign its rights and obligations under this Agreement to any party including, without limitation, in whole or in part, to any affiliate, without the prior written approval of or notice to Evaluator.
11.2 Governing Law. This Agreement and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto will be governed, construed and interpreted in accordance with the laws of the State of Georgia, U.S.A., without reference to conflicts of laws principles. Evaluator submits and agrees to the personal jurisdiction of the state and federal courts located in Atlanta, Georgia, U.S.A. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement or any services, software or goods provided in connection with this Agreement.
11.3 Notices. All notices required to be given hereunder shall be given in writing and shall be delivered either by hand or by certified mail with proper postage affixed thereto to the parties at the addresses set forth in the first paragraph of this Agreement with respect to Lancope, or on the signature page, with respect to Evaluator, or to such other addresses as may be designated by the parties in conformity with the requirements of this Section 11.3.
11.4 Injunctive Relief. Evaluator acknowledges and agrees that remedies at law may be inadequate to provide Lancope with full compensation in the event of Evaluator’s material breach of the license or any confidentiality obligations contained herein or any intellectual property rights of Lancope, that such breach will cause immediate and irreparable harm to Lancope, and that Lancope will therefore be entitled to seek injunctive relief in the event of any such material breach or threatened material breach. Nothing contained herein shall be construed as limiting Lancope’s right to any other remedies at law, including without limitation the recovery of damages for breach of this Agreement.
11.5 United States Government Restricted Rights. The Software and documentation (including data therein or thereon created or provided by Lancope) are “commercial computer software,” “commercial computer software documentation” and “technical data” as such terms are defined and used in FAR §§ 12.211, 12.212(a), DFARS §§ 227.7202-1(a), 227.7202-3 and their successor regulations. Except as expressly set forth herein, the United States Government’s rights to and interests in such Software or documentation (including data therein or thereon created or provided by Lancope) are limited by the terms of this Agreement.
11.6 Compliance with Anti-Corruption Laws. Evaluator shall comply with all laws relating to the conduct of business practices which prohibit any gratuities or inducements. Without limiting the foregoing, Evaluator acknowledges that Lancope is subject to certain United States laws, including but not limited to the Foreign Corrupt Practices Act of 1977 and any amendments thereto, which apply to activities carried out on Evaluator’s behalf outside the United States. Evaluator agrees neither to take nor omit to take any action if such act or omission might cause Lancope to be in violation of any such laws.
11.7 Export Controls. Evaluator acknowledges and agrees that the System and technical data received from Lancope may be subject to export or import controls, and agrees to comply with International Traffic in Arms Regulation, U.S. Export Administration Regulations and other applicable laws, regulations, rulings and executive orders on exportation and importation. By downloading, installing and/or using any part of the System, Evaluator further agrees that the System (and any technical information related to Lancope’s products) shall not be exported or re-exported (i) to any prohibited countries; (ii) to citizens and residents of such prohibited countries; or (iii) in violation of this Agreement. By downloading, installing and/or using any part of the System, Evaluator represents, warrants and covenants that it is not, and will not be, on any list of a government or regulatory body or agency prohibiting or limiting the export of the System to Evaluator under this Agreement. Evaluator shall monitor such lists and maintain compliance with this Section. If at any time Lancope reasonably determines that the export control or any other laws of any country or state are or become insufficient to protect Lancope’s commercial, intellectual or other proprietary rights to and interests in the System, Lancope may restrict or terminate the Evaluator’s rights to use the System or Confidential Information of Lancope in that country or state. Evaluator shall take all actions reasonably necessary to enforce this restriction or termination and to protect Lancope’s rights.
11.8 Costs. If any action at law or in equity (including arbitration) is necessary to enforce or interpret the terms of this Agreement, the prevailing party will be entitled to reasonable attorneys’ fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.
11.9 Entire Agreement. This Agreement, any NDA and any registration information provided by Evaluator, constitute the entire agreement, and, except to the extent provided in Section 11.10 (Priority), supersede all other agreements, oral or written, between the parties pertaining to the subject matter hereof and thereof. In no event shall any pre-printed or other terms contained in Evaluator’s purchase orders or other submitted documents be part of this Agreement or the relationship between Lancope and Evaluator related to any System. No amendment or modification of this Agreement shall be valid or binding upon the parties unless it is in writing and signed by both parties hereto.
11.10 Priority. In the event this Agreement conflicts with any of the terms of a written Evaluation Agreement signed by both parties in respect of the same System evaluation, the terms of such written Evaluation Agreement shall prevail. The terms of any License Agreement made effective with respect to the System shall supersede the terms of this Agreement.
BY CLICKING “SUBMIT” OR “I AGREE” AND/OR OTHERWISE PROCEEDING WITH THE ORDER, INSTALLATION AND/OR USE OF THE SYSTEM, YOU ACKNOWLEDGE ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND CONSENT TO PROVIDING YOUR ELECTRONIC SIGNATURE HEREOF, WHICH YOU HEREBY PERSONALLY WARRANT IS AUTHORIZED BY EVALUATOR FOR SUCH PURPOSE. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT THEN DO NOT CLICK “SUBMIT” OR “I AGREE” AND DO NOT ORDER, DOWNLOAD, INSTALL, OR USE THE SYSTEM.
Notwithstanding anything to the contrary in the Click Wrap Evaluation Agreement (the “Agreement”), Evaluator acknowledges its acceptance of, and agrees to, the following terms and conditions to the extent of certain information and data regarding sources of electronic threats to the security or integrity of information technology systems (“Data”) provided through Lancope’s Stealthwatch® product (“Stealthwatch”):