CAREFULLY READ THE FOLLOWING LEGAL AGREEMENT. USE OR INSTALLATION OF ANY PRODUCTS CONSTITUTES ACCEPTANCE BY YOU OF THE TERMS IN THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT START THE INSTALLATION PROCESS OR USE THE PRODUCTS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU SHOULD IMMEDIATELY, AND IN NO EVENT LATER THAN FIVE (5) CALENDAR DAYS AFTER YOUR RECEIPT OR ACCESS TO ANY PRODUCTS, SOFTWARE OR SERVICES IMMEDIATELY NOTIFY CALYPTIX IN WRITING AT LEGALNOTICE@CALYPTIX.COM OF REQUESTED CHANGES TO THIS AGREEMENT.
This End User License Agreement (“Agreement” or “EULA”) is between CALYPTIX SECURITY CORPORATION ("Calyptix," "we," "us," "our") and you ("you", "your"), and provides for terms and conditions regarding your license and use of certain Calyptix products and services, which includes all software, firmware, subscriptions, threat feeds, updates, enhancements, associated media, printed materials and online documentation provided to you, directly or indirectly, by Calyptix, including any such software installed on a computer, virtual machine, an AccessEnforcer® unit or other system and any updates or enhancements thereto or services or support provided in connection therewith (collectively, the "Products"). By accepting delivery, use, installation of the Products or the deployment, use or installation of the Products within your network by your IT professional, you also accept and agree to be bound by these terms and conditions. If you do not agree to be bound by the terms of this Agreement, you should not open, activate or use the Products or permit the Products to be deployed, activated or used in your network. You may return the Products to us for a refund from us of any amounts you have paid to us, subject to our current return policy (which we may change from time to time in our sole discretion). To the extent you have paid our authorized distribution, sales or service agent (a “Calyptix Partner”), you may seek a refund from your Calyptix Partner of the amounts you have paid in connection with the Products, subject to its current return policy, if any (which it may change from time to time in its sole discretion). The Products delivered to you whether directly by Calyptix or on behalf of Calyptix by a Calyptix Partner, have been licensed by us to you under the terms set forth in this Agreement as a single product. In no circumstance have the Products, or any part of the Products, been sold to you. The terms of this Agreement are subject to change at any time without notice, solely within our discretion.
1. Applicability. This Agreement shall apply to the use of the Products as specified upon an invoice or other written or electronic document provided herewith by Calyptix either to you or your Calyptix Partner who has deployed the Products on your behalf. This Agreement shall continue in force in perpetuity. Notwithstanding the duration of this Agreement, the license granted by us to you to use the Products pursuant to paragraph 2 below shall expire upon the expiration of the period specified from us to you or your Calyptix Partner, as applicable (the "Term"). You agree to be responsible for ensuring compliance with the terms of this Agreement, by any officer, director, employee, agent, subcontractor or other representative which may have access to the Products provided to you, including such access through any remote management functionality.
2. Subscription & License Grant. Subject to payment to us of the applicable license, other fees and taxes and to the other terms of this Agreement by you or your Calyptix Partner (as applicable), Calyptix hereby grants to you a non-exclusive, non-transferable limited license in such of our intellectual property as embodied by the Products and associated sublicenses in the intellectual property of others licensed to us and embodied by the Products, sufficient to permit you to use the Products for their intended purpose, on the computer on which the Products are provided to you by us, directly or indirectly through a Calyptix Partner. You may not make any other copies of the Products or use the Products on any other computers, servers or other devices. Such licenses and sublicenses shall be valid for the Term and shall terminate upon expiration of such Term unless renewed pursuant to paragraph 4. Nothing in this Agreement shall be construed as a license in any trademark, service mark, trade dress, or similar form of intellectual property and nothing in this Agreement shall be construed as intending to avoid patent or copyright exhaustion, to the extent that such exhaustion shall apply to this transaction. In the event such computer provided by us, directly or indirectly, to you to operate the Products is damaged in any manner (and regardless of the cause of such damage), we or your Calyptix Partner may replace such computer pursuant to our then current hardware replacement policy, which may include a reasonable fee for such replacement (including service, postage and handling).
3. Managed Services Program. If the Products have been provided to you through a Calyptix Partner in connection with, and/or as a part of, other network or computer management services (an “MSP Program”), the terms of this EULA set forth herein shall supplement and take precedence over any other agreement with respect to the Products or Calyptix. To the extent of any inconsistency with any other agreement, this EULA shall control. In connection with any such MSP Program, you hereby acknowledge and agree that (i) Calyptix has been engaged on behalf of your Calyptix Partner to provide you certain network security services via the Products, (ii) Calyptix provides the Products as an independent contractor and is in no way a partner or joint venture of any Calyptix Partner, (iii) the entire agreement between you and Calyptix consists of this EULA; (iv) that Calyptix is not in any way, directly or indirectly, a party to nor do we have any liability under any agreement between you and your Calyptix Partner. The services to be delivered to you by Calyptix shall consist solely of the network security services and functions that are deliverable directly through the Products (the “MSP Services”). In connection with the delivery by us of the MSP Services, you acknowledge and agree that your Calyptix Partner may also provide you additional services, such as network monitoring, desk top maintenance, remediation and repair, for which we shall not have any responsibility or liability. Your Calyptix Partner shall be responsible for installing and activating the Products on your premises. Once the Products have been installed, the responsibility of Calyptix shall be limited to regular remote maintenance of the Products. You acknowledge and agree that such MSP Services do not require Calyptix to provide you or Calyptix Partner any of the following: onsite support, network monitoring, network traffic analysis, malware removal, malware remediation, incident response or other similar services or support.
4. Renewal. The Term of the license under paragraph 2 will be renewed automatically upon expiration of the initial Term unless written notification of intent to cancel by you or your Calyptix Partner is received by Calyptix no later than the current expiration date of the license. In connection with such renewal, we will send you or your Calyptix partner an invoice for such renewal at the then current renewal price in effect. Cancellations by you or your Calyptix Partner must be in writing and received by us no later than the day before the intended cancellation date. In no event will refunds be issued for time remaining on any prepaid license, subscriptions or support (including any renewal periods). With certain Products offer by Calyptix, including monthly license terms and the MSP Program, you agree to be responsible for and pay all applicable fees until you deliver the applicable hardware to us at your sole expense in good repair (ordinary wear and tear resulting from proper use thereof alone excepted), and if Calyptix, for any reason, does not receive the hardware immediately upon the expiration of the Term, you agree to pay to Calyptix the replacement cost of such hardware at full retail price or such other termination fee as Calyptix may set from time to time. IN THE EVENT YOU FAIL TO PAY TO US THE APPLICABLE RENEWAL PRICE, THE PRODUCTS SHALL NO LONGER BE AVAILABLE FOR YOUR USE, THE LICENSE SHALL TERMINATE AND THE ASSOCIATED COMPUTER WHICH HAS BEEN PROVIDED TO YOU SHALL CEASE TO OPERATE SUCH PRODUCTS. YOU AGREE THAT CALYPTIX SHALL NOT HAVE ANY LIABILITY OR RESPONSIBILITY TO YOU FOR ANY SUCH TERMINATION OF THE USE OF THE PRODUCTS.
5. Price. You agree that (i) you or your Calyptix Partner shall pay to Calyptix all fees and other amounts due hereunder in connection with any Products (as such Products and fees may change from time to time), (ii) you will be responsible for and pay all sales, use, property, ad valorem and other taxes, whether national, state, local or otherwise, however designated, which are levied or imposed by reason of the transactions contemplated by the MSP Program or with respect to the Products, and (iii) you shall be responsible for and pay any and all charges, fees, expenses due to any third parties, including your Calyptix Partner, in connection with the delivery, installation, and configuration of the Products, including but not limited to shipping and handling, taxes, technical support, installation and configuration services, and the like.
6. Change of products; substitution. You acknowledge that the Products are the subject of ongoing revision, upgrade, and refinement, and that following acceptance by you of the terms of this Agreement and delivery or deployment of the Products, the Products may be changed slightly or substantially as part of the development process. You agree that we may substitute any related variant of the Products, whether a revision, upgrade, refinement, or new creation, of the same or superior quality, for the Products in existence on the effective date of this Agreement, in our sole discretion.
7. Upgrades and End of Life. From time to time, we may release upgrades, updates, and other changes to the Products, which will be provided to you upon such terms as we designate at the time of such release. In addition, we may designate certain Products “End of Life” or subject to certain specified requirements after which such time any license hereunder shall terminate and such Products shall no longer be available for use.
8. Information Collection & Ownership of Data. (i) Purpose. The purpose of this section is to address the analysis, collection, use, and ownership of data in connection with your use of the Products. You and we recognize that aggregation and analysis of data from multiple networks can facilitate more effective security for all participants, with the aim of lowering costs, accelerating protection and enhancing security. Except as you or your representatives may configure the functionality of the Products for your use (e.g. email spam quarantine, web filter, etc.), the Products are not designed to capture or retain any personal or private information. The Products are designed for you to secure your network and data transmitted from, to or within your network by controlling, inspecting and analyzing data and related traffic from associated systems, programs, processes and devices operating within or with your network (collectively, the “Approved Activities”). You represent and agree that you have all necessary right, title and authority (1) to lawfully deploy and use the Products for the Approved Activities and (2) to grant to us the licenses set forth below. (ii) Data Ownership and Use. You and we recognize and agree that use of the Products for the Approved Activities will use and generate data and information directly from your network that consists of data owned by you (“Your Data”) as well as data owned or licensed from third parties by Calyptix (“Our Data”). For example, the Products deployed on your network generate log data of events detectable by the Products with respect to network and application traffic, security events, system events and the like, and such log events consist of various characteristics or indicators including, but not limited to, date, time, source and destination IPs, source and destination ports, URLs, user names, domains, hash values for files and other data, sender domain and email addresses, email subject lines, OS fingerprints, applications, protocols, packet count, byte count, traffic direction, file names, security flags, commands (e.g. GET, POST, etc.), configuration settings and changes, and other event indicators or characteristics (collectively, “Event Logs”). The Products will also detect, block, quarantine or flag suspicious, unwanted or malicious traffic and related data activity, including as may be derived from the use of Our Data, and such resulting data consists of malware indicators, including but not limited to, URLs, domains, IP addresses, executable and other files, hash values, file names, email, attachments, strings, processes, programs, related configuration adjustments, and other data or indicators (collectively, “Malware Indicators”). Event Logs and Malware Indicators derived directly from your network are helpful for you to manage and secure your network. Except for the licenses granted by you to Calyptix herein for the Event Logs and Malware Indicators, Your Data is your property. Notwithstanding the foregoing, between you and Calyptix, Calyptix shall retain all rights and title in and to any Indicators of Compromise that Calyptix develops or uses, including with respect to the deployment or use of the Products or other services. “Indicators of Compromise” means any specifications of anomalies, configurations, or other conditions that Calyptix is capable of identifying within an information technology infrastructure or otherwise via the Products, professional services, support or otherwise. (iii) Calyptix Safeguards. In connection with the permitted use, collection, or analysis by Calyptix of your Event Logs or Malware Indicators, Calyptix agrees to undertake the following commercially reasonable measures (the “Calyptix Safeguards”): (1) Calyptix agrees to undertake commercially reasonable measures as to ensure that your Event Logs and Malware Indicators do not contain your confidential information, (2) Calyptix agrees to undertake commercially reasonable measures to safeguard the privacy and confidentiality of Your Data, (3) prior to disclosure of Your Data to any third party as permitted herein, other than a Calyptix Service Provider (as defined below), Calyptix agrees to de-identify or anonymize your Event Logs and Malware Indicators so that such permitted use would not reasonably be expected to enable such third party to identify you or your employees as the source of Your Data, (4) Calyptix agrees to provide you, upon written request, periodic access to view your recent Event Logs (to the extent practical and subject to such policies, requirements and additional fees as may be determined solely by Calyptix), and (5) to the extent Calyptix or any Calyptix Service Provider inadvertently obtains access to your confidential information, then Calyptix agrees to utilize, and cause such Calyptix Service Provider to utilize, commercially reasonable efforts to keep it confidential; provided, that you acknowledge and agree that Calyptix and such Calyptix Service Provider may disclose such information as may be required by law or legal process. (iv) Permitted Use. Subject to the Calyptix Safeguards, you grant to Calyptix a perpetual, irrevocable, worldwide, paid-up, non-exclusive license and right to access, collect, reproduce, modify, reformat, fix, create derivative works from, publish, distribute, sell, sub-license, transmit, publicly display and provide access to your Event Logs and Malware Indicators for any lawful purpose, including but not limited to the following: (1) participating and sharing with information sharing and analysis organizations and centers such as those proposed by U.S. Executive Order 13691 Promoting Private Sector Cybersecurity Information Sharing (see https://www.whitehouse.gov/the-pressoffice/ 2015/02/13/executive-order-promoting-private-sectorcybersecurity- information-shari); (2) delivery of technical support, network, traffic and other related monitoring services, compliance services or other professional or technical services to you; (3) testing, evaluating, improving, enhancing, and expanding operational features of the Products; (4) developing, testing or delivering new or expanded products or services for you or third parties; (5) enhancing network and related cyber security, sales and marketing activities of Calyptix and its affiliates, (6) sharing data that has been identified as potentially malicious, suspicious or unwanted content or indicators with worldwide affiliates, security partners, law enforcement and governmental agencies responsible for cyber security; and (7) any such other purposes as are reasonably anticipated to improve cyber security for our customers and the Internet in general. In connection with any such permitted use hereunder, you agree that Calyptix may conduct such activities, wholly or in-part, directly or indirectly with, by or through one or more third parties, so long as Calyptix reasonably determines any such third party (a “Calyptix Service Provider”) undertakes commercially reasonable measures to safeguard the privacy and confidentiality of Your Data. (v) Calyptix Data. Our Data includes, but is not limited to, (1) information from, used by or about the Products such as product usage, product operation and design, (2) Indicators of Compromise, (3) any methodologies, processes or practices for detection, analysis or review of malware or malicious, suspicious or unwanted traffic, (4) details, characteristics or indicators of malicious, suspicious or unwanted traffic or files, (5) any statistical or other data related to or derived from any of the foregoing, or (6) any derivative works created by or at our direction, including those from our permitted use of your Event Logs or Malware Indicators, or related to the performance or operation of the Products. Our Data shall be owned by Calyptix and accessible to you only through the Products only on such terms and by such methods as we may designate from time to time. We reserve all right, title, ownership, and other rights and interests to any intellectual property, moral rights, copyright, patent, trade secret and trademark rights, work product or derivative works under this agreement, related to the Products, our processes and methods (including any malware detection methodologies) or otherwise, including with respect to our collection, use or analysis of Our Data, your Event Logs, or your Malware Indicators.
9. DISCLAIMER OF WARRANTIES. CALYPTIX DOES NOT WARRANT THAT THE PRODUCTS OR MSP SERVICES ARE PROVIDED TO YOU ERROR FREE. THE PRODUCTS OR MSP SERVICES ARE PROVIDED TO YOU ON AN “AS-IS” BASIS NO WARRANTY, UNLESS WE SEPARATELY AGREE OTHERWISE IN WRITING. CALYPTIX DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY. CALYPTIX'S RESPONSIBILITY FOR WARRANTY CLAIMS IS LIMITED TO REPAIR AND REPLACEMENT AS SET FORTH IN CALYPTIX'S APPLICABLE HARDWARE WARRANTY STATEMENT IN EFFECT AS CALYPTIX MAY MODIFY FROM TIME TO TIME WITH OR WITHOUT NOTICE.
10. Limit of Liability. You agree that in the event that Calyptix or its suppliers or your Calyptix Partner shall be liable for damages in connection with the Products, MSP Services or other related products and services, such damages shall be limited to the lesser of amounts you or your Calyptix Partner have actually paid to Calyptix within the immediately preceding 12 months for the subject Products or MSP Services or $10,000, whether any such liability arises from claims in contract, tort or any other theory of liability. In no event shall Calyptix or its suppliers or your Calyptix Partner be responsible for incidental, special, consequential, or other indirect damages of any kind arising from your use of the Products, MSP Services or other related products and services, even if Calyptix or your Calyptix Partner has been advised of the possibility of such damages and regardless of the nature of the cause of action or theory asserted. You expressly assume the risk of physical damage or data loss associated with your use of the Products, MSP Services and related products and services, including without limitation any such loss which may arise by your allowing any other entity or individual to have access to the Products (including by way of remote management).
11. Modification; reverse engineering; unauthorized access. The Products contain confidential and proprietary information of Calyptix (including trade secrets subject to protections under applicable law) and, as such, are provided you and your representatives in a manner so as to be configurable for use in a computer network environment subject to access restrictions to protect such confidential and proprietary information. You agree that your modifications to the Products shall be limited to configuration options provided to you via the customer interface for those Products, if any, and no other. You agree that your "authorized access," as that term is defined in 18 U.S.C. § 1030 and elsewhere, to the Products is limited to any customer interface and passwords as provided by Calyptix, and that any attempt to gain unauthorized access or to exceed your authorized access may be prosecuted as a violation of Federal, state or other law. You agree not or attempt to (and will not allow others to) (1) in any manner reverse engineer, reverse compile, modify, translate, disassemble or otherwise attempt to derive or discover any source code, trade secrets, know-how in or underlying any of the Products or any portion thereof, including underlying ideas or algorithms or authorize, encourage or assist others to do any of the foregoing; (2) interfere with, modify, disrupt or disable features or functionality of the Products, including without limitation any such mechanism used to restrict or control the functionality, or defeat, avoid, bypass, remove, deactivate or otherwise circumvent any software protection or monitoring mechanisms of the Products; (3) sell, rent, lease, sublicense, distribute, redistribute, syndicate, create derivative works of, assign or otherwise transfer or provide access to, in whole or in part, the Products to any third party except as expressly permitted herein; (4) provide use of the Products on a service bureau, rental or managed services basis or permit other individuals or entities to create links to the Products or “frame” or “mirror” the Products on any other server, or wireless or Internet-based device, or otherwise make available to a third party, any token, key, password or other login credentials to the Products; or (5) use the Products for any illegal, unauthorized or other improper purposes. Without the express prior written consent of Calyptix, you agree not to (i) remove or obscure any proprietary notices on the Products, (ii) conduct any benchmarking or comparative study or analysis involving the Products (“Benchmarking”) for any reason or purpose except, to the limited extent absolutely necessary, to determine the suitability of Products to interoperate with your internal computer systems; (iii) disclose or publish to any third party any Benchmarking or any other information related thereto; or (iv) use the Products or any Benchmarking in connection with the development of products, services or subscriptions that compete with the Products. You agree to cause your representatives, including your Calyptix Partner, to abide by these terms.
12. Not for resale. The Products and any associated licenses or sublicenses are not for resale, sublicense, sublet, additional access, or other transfer except with the express written permission of Calyptix, provided, however, that you may transfer the Products together as a unit in connection with the sale of your business of all or substantially all of your assets. Any transfer of the Products not authorized under this paragraph shall immediately void all licenses and privileges, without compensation. Calyptix may assign or otherwise transfer its rights, privileges, and obligations under this Agreement without notice.
13. Service and support. Calyptix agrees to provide service and support for the Products upon such terms and conditions as may be the subject of a separate agreement or policy in effect on the effective date of this Agreement. Nothing in this Agreement shall be construed to require Calyptix to provide service or support by any particular method, upon any demand, within any time frame or standard of service, or upon any particular terms, except as separately provided.
14. Open-source software. You acknowledge that we may use open-source software in connection with the creation or operation of the Products or MSP Services. To the extent that we have used open-source software, we agree to adhere to the terms of the license for that software, and you will be provided with a copy of our license for that software with the delivery of the Products upon your request. Nothing in any such license shall be construed to vary the terms of this Agreement on any point not directly related to the open-source software provided. In certain cases, the license for open-source software may require that we provide you a complete copy of the source code to that software upon your request. In such case, we will gladly provide such source code for the applicable software in the form of a CD for a fee of $100.00. This fee is to pay for the time of a Calyptix engineer to create the CD, package it, and mail it. Please send us a check payable in USA funds and include the program name and along with postage prepaid return packaging of your choice.
15. Authorized Access; Indemnification. You agree that as part of the operation of the Products, it will be necessary for us to access communications traffic across your computer networks. You agree that our access is necessary to the proper operation of the Products, and you authorize us to have such access to your network and to communications residing thereon or proceeding there through as is necessary or useful to the operation, service, support, evaluation, testing and improvement of the Products. You represent to us that you have the requisite authority to grant us this access. You agree to indemnify us and hold us harmless for any access we gain through ordinary operations of the Products which you do not have the requisite authority to grant.
16. Export Controls. Software, including technical data, may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. You agree to comply strictly with all such regulations and applicable laws and acknowledge that you have the responsibility to obtain licenses to export, re-export, or import the Products; to the extent such licenses are necessary. By acceptance of this Agreement, you confirm that you are not a resident or citizen of any country currently embargoed by the U.S. A list of embargoed countries is available at the official site of the Office of Foreign Assets Control of the U.S. Department of Treasury at http://www.treas.gov/ofac/.
17. No return. Except as provided in our separate written return policy, if any, the Products are not returnable except with the consent of Calyptix, upon such terms as Calyptix may designate.
18. Notice. Notice under this Agreement shall be given to Calyptix as follows: Calyptix Security Corporation, 5701 Westpark Road, Suite 201, Charlotte, NC 28217, Attention: Legal Department; or at such other address as Calyptix may from time to time designate.
19. Miscellaneous. The failure of either party to enforce at any time or for any period of time the terms of this document shall not be construed as a waiver of such terms or the rights of such party thereafter to enforce each term contained herein. If any term or condition of this agreement is held void or unenforceable, it shall be severed, and every other provision shall be enforced as if the void or unenforceable term or condition had never been a part hereof. This Agreement constitutes the entire agreement of the parties on the subject matter to which it relates, and may only be modified (a) by a writing signed by both parties or (b) by Calyptix, at its discretion, by giving notice to you of the change in terms. In no event shall Calyptix be liable to you or any other person or entity for failure to deliver the Products or MSP Services where such failure is due to fire, strike, labor trouble, war, act of God, terrorism, cyber-terrorism, widespread Internet instability, inability to obtain Internet access, inability to obtain raw materials, laws or regulations of any governmental authority, incorrect, delayed or incomplete information provided to us. The section headings used herein are for convenience of reference only and do not form a part of these terms and conditions, and no construction or inference shall be derived therefrom.
If you do not accept Calyptix's offer set forth in this Agreement, contact: Calyptix Security Corporation, 5701 Westpark Drive, Suite 201, Charlotte, NC 28217. Telephone (704) 971-8989. Fax (704) 971- 8990. Address all questions about this Agreement to: legalnotice@calyptix.com.
May 3, 2016
© Calyptix Security Corporation
