This end user license agreement (the “Agreement“) is made by and between Stealthbits Technologies LLC, (“Stealthbits“), a New Jersey limited liability company with a principal place of business at 200 Central Avenue, Hawthorne, NJ, 07506, and the entity on whose behalf the Software is used (“Licensee“) (each a “Party” and together the “Parties“). This Agreement, together with any documents incorporated herein by reference, sets forth all terms and conditions applicable to use of the Software by Licensee.
DEFINITIONS. All capitalized terms used herein shall have the definitions attributed to them in this section or elsewhere in this Agreement.
1.1.1 Trial Software. The term of the license for Trial Software is thirty (30) days from the Trial Software installation date (“Evaluation Period“). Licensee may use the Trial Software during the Evaluation Period solely for the purpose of evaluating whether to purchase a license to the Software. Licensee can only obtain one Evaluation Period per release of the Software unless Stealthbits, in its sole discretion, grants an extension of the Evaluation Period. There is no fee for Licensee’s use of the Software in accordance with this Agreement during the Evaluation Period, however, Licensee is responsible for any applicable shipping charges or taxes which may be incurred under this Agreement, and any fees which may be associated with usage beyond the scope permitted herein. Licensee acknowledges that it is downloading the Trial Software with the intent to purchase a license to use the Software upon completion of a successful Evaluation Period. Stealthbits sales representative may contact Licensee after the download to discuss Licensee’s purchase of a license.
1.1.2 Perpetual Software. The term of the license for Perpetual Software shall be perpetual, unless terminated in accordance with this Agreement or an amendment hereto.
1.1.3 Subscription Software. The term of the license for Subscription Software shall begin and end on the dates set forth in the Order, unless terminated or renewed in accordance with this Agreement or an amendment hereto. Any Subscription Software will automatically renew for subsequent terms of the same duration and at the same quantities, unless Licensee notifies Stealthbits in writing that it will not renew at least sixty (60) days in advance of the end date of the then-current term. Stealthbits will increase the fees for the Subscription Software by up to five (5) percent per year.
1.1.4 License Grant to Software. Subject to the terms and conditions of this Agreement and, when applicable, the Order, Stealthbits hereby grants to Licensee, and Licensee accepts from Stealthbits, a non-exclusive, non-transferable and non-sublicensable right to install, use, access, run, or otherwise interact with one copy of the Software for Licensee’s own internal business operations and in accordance with the Documentation. Without Stealthbits’ prior written consent otherwise, Licensee may make a reasonable number of additional copies of the Software (excluding Trial Software) solely for non-productive, archival purposes; provided that, the original productive and non-productive copies of the same license are not in use at the same time and each copy contains all titles, trademarks, copyrights and restricted rights notices as in the original, and is not provided to any third party. The Software is provided in binary code only. Nothing in this Agreement entitles Licensee to receive source code for the Software.
1.1.5 Upgrades. If Licensee downloads the Software as an upgrade to an existing software product from Stealthbits, Licensee agrees that the terms of this Agreement will apply to such software product, as upgraded and that these shall be the only terms and conditions applicable to such upgraded Software. Stealthbits may update the terms of this Agreement at any time in its sole discretion. Stealthbits will notify Licensee of any such updates and Licensee’s continued use of the Software after such notice will constitute Licensee’s agreement to the updated terms.
1.2 Restrictions. Licensee may not: (a) modify the Software or any portion thereof in any manner; (b) reverse engineer, decompile, disassemble, modify, adapt, rent, lease, loan or create derivative works based upon the Software or any part thereof; (c) use the Software as a managed service provider, application service provider, software as a service basis, or in any commercial time share arrangement, or in any other activity intended to directly produce revenue without the prior written consent of Stealthbits; (d) resell the Software licensed hereunder or use the Software to provide consulting or training services to third parties; (e) assign the Software to a third party for use in managing Licensee’s environment without the prior written consent of Stealthbits; or (f) install, use, or run the Software in any third party facility, or to enable others to do so. Licensee represents and warrants to Stealthbits that Licensee shall not, and shall not permit any other person to: (x) use the Software for purposes of (i) benchmarking or competitive analysis of the Software, (ii) developing, using or providing a competing software product or service, or (iii) any other purpose that is to Stealthbits’ detriment or commercial disadvantage; (y) copy the Software in whole or in part; and (z) use the Software in violation of any law, regulation or rule.
1.3 Government Users. The Software is a “commercial item”, as that term is defined at 48 C.F.R. 2.101), consisting of “commercial computer software” and “commercial computer software documentation”, as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (or an equivalent provision, e.g., in supplements of various U.S. government agencies, as applicable), all U.S. Government users acquire the Software with only those rights set forth herein. The manufacturer is Stealthbits Technologies LLC, 200 Central Avenue, Hawthorne, NJ 07506.
1.4 Export Law Assurances. Licensee shall not export or re-export, or allow the export or re-export of the Software or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or other applicable foreign agency or authority.
1.5 Locking Mechanism. Trial Software and Subscription Software include a locking mechanism that automatically will prevent Licensee’s use of such Software following the expiration of the applicable license term. Licensee may not disrupt, disable or interfere with the locking mechanism, and may not use such Software following the expiration of the applicable license term unless Licensee purchases a license, in the event of Trial Software, or a renewal license, in the event of Subscription Software, from Stealthbits.
1.6 Reservation of Rights. Stealthbits reserves all rights, implied or otherwise, which are not expressly granted to Licensee hereunder. The Software is licensed only, not sold, and Stealthbits retains all ownership of and all rights, title and interest in and to the Software including, without limitation, all intellectual property rights, excluding only any third-party components incorporated therein.
1.7 Third Party Components. The Software is distributed with certain third-party components licensed to Stealthbits pursuant to “open source” licenses, which such licenses require certain provisions to be included in any distribution of such third-party components. Licensee acknowledges those terms set forth in the text files accompanying the Software when Licensee uses the Software. Any such third-party software is provided with the rights set forth in the applicable license terms, and is provided “AS-IS” with no warranties. Such third-party license terms do not apply to the Software as a whole, and do not apply to the proprietary portions of the Software owned by Stealthbits.
2.1 Maintenance Services.
2.1.1 Scope of Maintenance Services. The scope of the Maintenance Services is as follows:
2.1.2 Maintenance Services Term. Stealthbits will make available the Maintenance Services beginning and ending on the dates set forth in the Order (the “Maintenance Services Term“); provided that, Stealthbits may deny Maintenance Services if it has not received the applicable fees.
2.1.3 Renewal. Each Maintenance Services Term will automatically renew for subsequent terms of the same duration, unless Licensee notifies Stealthbits in writing that it will not renew at least sixty (60) days in advance of the end date of the then-current term. Stealthbits will increase the fees for each renewal Maintenance Services Term by up to five (5) percent per year.
2.1.4 Non-Payment. Stealthbits may deny Maintenance Services during any Maintenance Services Term if it has not received all applicable fees.
2.1.5 Onboarding. When “Onboarding Services” is included in an Order, Stealthbits will provide remote guided onboarding assistance with Licensee’s initial installation of the Software as part of Maintenance Services.
2.2 JumpStart Services.
2.2.1 Scope of JumpStart Services. The scope of the JumpStart Services is set forth in the Jumpstart Services description available at www.netwrix.com/eula.html.
2.2.2 JumpStart Services Term. Stealthbits will commence and complete the JumpStart Services within a reasonable time considering the complexity and circumstances of the JumpStart Services (“JumpStart Services Term“). During the JumpStart Services Term, Licensee will make diligent efforts to schedule and complete the JumpStart Services, including, without limitation, having the proper personnel, equipment, and environment available in a timely manner.
2.2.3 Completion. The JumpStart Services will be considered fully delivered and completed upon the earlier of: (i) signature by Licensee acknowledging completion of the JumpStart Services, or (ii) five attempts by Stealthbits via email to contact Licensee following completion of the JumpStart Services to which Licensee has been unresponsive. Notwithstanding the foregoing, the right to use the JumpStart Services will expire ninety (90) calendar days following purchase of the JumpStart Services.
2.3 Professional Services.
2.3.1 Scope and Term of Professional Services. The scope and term of the Professional Services will be set forth in an Order and, when applicable, a statement of work (“SOW“) agreed by Stealthbits and Licensee prior to commencement of the Professional Services. SOWs will be for a fixed price (“Fixed Price Project“) or as otherwise agreed between Stealthbits and Licensee in the SOW. Each SOW for a Fixed Price Project will state the applicable fees and payment milestones (if any).
2.3.2 Professional Services Deliverables. “Deliverables” means any work product, whether in written, oral, electronic or other form, created by Stealthbits pursuant to a SOW. When applicable, Stealthbits grants to Licensee an irrevocable, perpetual, non-exclusive, worldwide, royalty-free, paid-up right and license to use the Deliverables as reasonably necessary to enable the full benefit of the Professional Services in relation to the Software. Licensee acknowledges that Licensee has no rights or license to use the Deliverables other than as stated in the foregoing sentence, and Licensee agrees not to use the Deliverables in any other manner.
2.4 Other Services. For the avoidance of doubt, the Parties will enter into a separate agreement for any services other than Maintenance Services, JumpStart Services, and Professional Services.
2.5 Intellectual Property. Licensee acknowledges that all right, title and interest in any intellectual property rights created as a part of the Maintenance Services, JumpStart Services, and Professional Services, including without limitation any Deliverables, shall be owned by Stealthbits or its licensors, as applicable. Notwithstanding the foregoing, Licensee retains any right, title, and interest in any Licensee confidential information shared with Stealthbits as part of the Maintenance Services, JumpStart Services, or Professional Services, as applicable.
3.1 Confidentiality. “Confidential Information” means the Software, source code, object code, trade secrets, know-how and any proprietary tools, proprietary knowledge or proprietary methodologies of Stealthbits not generally available to the public, to which the Licensee may gain access or knowledge as a result of this Agreement. The Licensee shall keep such Confidential Information confidential, and shall use commercially reasonable efforts and take all reasonable steps to protect the Confidential Information from any use, reproduction, publication, disclosure, or distribution except as specifically authorized by this Agreement. The Licensee shall promptly notify Stealthbits of any known unauthorized use, reproduction, publication, disclosure, or distribution of the Confidential Information and will cooperate with Stealthbits in any litigation brought by Stealthbits against third parties to protect its proprietary rights.
3.2 Advertising. Licensee agrees that Stealthbits can publicly advertise that Licensee is a paying customer of Stealthbits and the Software which Licensee is using. Advertising may include, without limitation, use of Licensee’s name, logo, number of employees and other non-confidential information related to Licensee’s use of Stealthbits’ products in connection with advertising via Internet, magazines, newspapers, TV, case studies, success stories, press releases, marketing materials, exhibits and other electronic and physical media.
3.3 Suggestions. To the extent Licensee provides or otherwise communicates any suggestions, enhancement requests, recommendations or otherwise provides feedback on the Software or Services (collectively, “Comments“), Licensee hereby grants Stealthbits a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual, unrestricted license to use and/or incorporate the Comments and all underlying ideas contained in the Comments into the Software or Services (or other product or service offerings) and create any derivative works thereof.
4.1 “AS-IS” Warranty for Trial Software. LICENSEE AND STEALTHBITS AGREE THAT THE TRIAL SOFTWARE IS PROVIDED “AS IS” AND UNSUPPORTED, AND THAT STEALTHBITS MAKES NO WARRANTY AS TO THE TRIAL SOFTWARE, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
4.2 Limited Software Warranty for Subscription Software and Perpetual Software. Stealthbits warrants that for a period of thirty (30) days from the date Stealthbits issues Licensee’s license keys for the Software: (i) the media provided by Stealthbits, if any, on which the Software (excluding Trial Software) is recorded will be free from material defects in materials and workmanship under normal use, and (ii) the Software (excluding Trial Software), as provided by Stealthbits, will substantially conform to the specifications in the Documentation applicable to such Software (collectively, the “Software Warranties“). Licensee must report in writing any breach of the Software Warranties to Stealthbits during the warranty period, and Licensee’s exclusive remedy, and Stealthbits’ sole obligation, for any such breach of warranty shall be for Stealthbits to either replace defective media and to correct or provide a workaround for reproducible errors that cause a breach of the Software Warranties within a reasonable time considering the severity of the error and its effect on Licensee or, at Stealthbits’ option, refund the license fees paid for the nonconforming Software upon return of such Software to Stealthbits and termination of the related license hereunder.
4.3 Limited Services Warranty for JumpStart Services and Professional Services. Stealthbits warrants that it will perform the JumpStart Services and Professional Services: (i) in a professional, diligent, and technically correct manner; and (ii) in substantial conformance with the applicable services scope for JumpStart Services, set forth in this Agreement, or for Professional Services, set forth in the SOW (collectively, the “Services Warranties“). Licensee must report in writing any breach of the Services Warranties to Stealthbits within thirty (30) days following the performance of nonconforming JumpStart Services or within ninety (90) days following the performance of nonconforming Professional Services, as applicable, and Licensee’s exclusive remedy, and Stealthbits’ sole obligation, for any breach of the Services Warranties, shall be for Stealthbits to re-perform the nonconforming portion of the JumpStart Services or Professional Services, as applicable, or, at Stealthbits’ option, refund the fees paid for the nonconforming portion of the JumpStart Services or Professional Services, as applicable. Notwithstanding the foregoing, Stealthbits shall have no obligation for breach of the Services Warranties to the extent arising out of Licensee’s modification of Deliverables or use of Deliverables in violation of this Agreement or the SOW.
4.4 Disclaimer of Other Warranties. THE LIMITED WARRANTIES AS DESCRIBED IN THIS SECTION 4 ARE THE ONLY WARRANTIES PROVIDED TO LICENSEE. STEALTHBITS AND ITS LICENSORS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO THE SOFTWARE, ANY ACCOMPANYING WRITTEN MATERIALS, AND ANY SERVICES.
5.1 Limitation of Remedies and Damages. IN NO EVENT WILL STEALTHBITS, ITS LICENSORS, ITS AFFILIATES, SUBSIDIARIES, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AFFILIATES BE LIABLE TO LICENSEE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY PUNITIVE, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND DATA AND THE LIKE), WHETHER FORESEEABLE OR UNFORESEEABLE, OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES, REGARDLESS OF THE BASIS OF THE CLAIM AND EVEN IF STEALTHBITS OR A STEALTHBITS REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. STEALTHBITS’ CUMULATIVE LIABILITY FOR DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE FEES PAID BY LICENSEE TO STEALTHBITS DURING THE THREE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR THE SOFTWARE OR ANY SERVICES (EXCLUDING APPLICABLE TAXES AND PAYMENT FEES) THAT CAUSED THE DAMAGES. TO THE EXTENT THAT APPLICABLE LAW DOES NOT PERMIT THE EXCLUSION OR LIMITATION OF LIABILITY AS SET FORTH HEREIN STEALTHBITS’ LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW. LICENSEE AGREES THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE SOFTWARE OR ANY SERVICES BROUGHT BY LICENSEE MUST BE FILED WITHIN NO LATER THAN SIX (6) MONTHS AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR SUCH CLAIM WILL BE FOREVER BARRED.
5.2 Indemnification. Licensee agrees to indemnify and hold harmless Stealthbits, its licensors and their respective officers, directors, affiliates, employees, principals, shareholders and agents from and against any and all claims, causes of action, demands, losses, damages, costs and expenses of any type (including attorney’s fees) arising out of or in connection with any breach of this Agreement by Licensee, or any wrongful or negligent act or omission by Licensee or its officers, employees or agents.
5.3 Injunctive Relief. Licensee hereby expressly agrees that a remedy at law for any breach or attempted breach of the provisions of this Agreement may be inadequate and Stealthbits, in addition to any other rights or remedies, shall be entitled to seek injunctive and other equitable relief in the event of any such breach or attempted breach without having to: (i) post bond or other security to prevent a breach or continuing breach of this Agreement, or (ii) prove actual damages.
5.4 WAIVER OF JURY TRIAL. LICENSEE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THE SOFTWARE, THE SERVICES OR THIS AGREEMENT.
6.1 Termination. This Agreement, an Order, or a SOW may be terminated: (a) by mutual agreement of Stealthbits and Licensee; (b) by Licensee, upon thirty (30) days prior written notice to Stealthbits; or (c) by Stealthbits, if Licensee breaches this Agreement and fails to cure such breach to Stealthbits’ reasonable satisfaction within thirty (30) days following receipt of Stealthbits’ notice thereof. Upon any termination of this Agreement, Licensee shall immediately cease all use of the applicable Software, destroy all copies of the Software in Licensee’s possession and control, and certify in writing to Stealthbits within thirty (30) days after termination that Licensee has destroyed such Software and all copies thereof. Termination of this Agreement shall not limit Stealthbits from pursuing any remedies available to it, including injunctive relief, or relieve Licensee of its obligation to pay all fees that have accrued or have become payable by Licensee under this Agreement, any Order, or any SOW.
6.2 Survival. The provisions of this Agreement that by their nature are intended to survive termination or expiration of this Agreement shall survive any termination/expiration of the Agreement and remain in effect following such termination/expiration.
6.3 Assignment. Licensee may not assign or transfer its rights or obligations under this Agreement without prior written approval by Stealthbits and any purported assignment or transfer without Stealthbits’ written consent shall be null and void.
6.4 Interpretation. This Agreement is governed by the laws of the State of Delaware without regard to its conflicts of laws. Licensee irrevocably agrees that any legal action or proceeding arising out of or relating to this Agreement brought by it will be brought and determined in the federal courts for the District of Delaware, or if there is no federal jurisdiction, by the state courts of Delaware, and Licensee hereby irrevocably agrees to submit to the exclusive jurisdiction of the aforesaid courts with regard to any such action or proceeding arising out of or relating to this Agreement or the Software. The U.N. Convention of Contracts for the Sale of International Goods will not apply. Performance of any obligation required by a Party hereunder may be waived only by a written waiver signed by the other Party, which waiver shall be effective only with respect to the specific obligation described therein. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, that provision will be enforced to the maximum extent permissible, and the remaining provisions of this Agreement will remain in full force and effect. Stealthbits will not be liable for any delay or failure of performance, and no delay or failure of performance will constitute a default or give rise to any liability for damages if such delay or failure is caused by causes beyond Stealthbits’ control, including, without limitation, acts of God, war, terrorism, and civil disturbance.
6.5 Entire Agreement. This Agreement, including any Order and SOW hereunder, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior agreements between the Parties, whether written or oral, relating to the same subject matter. Any contrary or supplemental terms or conditions on any purchase order or other document issued by Licensee is for administrative convenience only and shall not be binding upon Stealthbits, even if signed by Stealthbits. Performance will not constitute acceptance by Stealthbits of contrary or supplemental terms or conditions. Any amendment to this Agreement shall be binding upon Stealthbits only if such amendment references this Agreement and is executed by Stealthbits.