CUSTOMER LICENSE AGREEMENT ("Agreement")
Using the Software (defined below) establishes a binding agreement between Tripwire, Inc. (“Tripwire”) and you as the person or entity licensing the Software (“Customer”); provided that you acquired Tripwire Software from Westinghouse.
1. ORDERS, FEES AND PAYMENT.
1.1 This Agreement allows Customer to license software products (“Software”) and to purchase support and maintenance for the Software (“Support”) through Westinghouse. The Software is governed exclusively by the terms of this Agreement, and applicable product-specific terms at www.tripwire.com/terms. Westinghouse does not have the right to modify this Agreement or to make additional representations, commitments or warranties binding on Tripwire. Notwithstanding any reference to “purchase” in this Agreement or order, Software is licensed, not sold.
2. OWNERSHIP; GRANT OF LICENSE.
2.1 Software, including all releases provided as part of Support, copies and documentation, is copyrighted, trade secret and Confidential Information of Tripwire or its licensors, who maintain exclusive title to all Software and retain all rights not expressly granted by this Agreement. Tripwire grants to Customer, subject to Customer’s compliance with the Agreement terms including but not limited to payment of applicable license fees, a nontransferable, nonexclusive license to use Software solely: (a) in machine-readable, object or executable code form; (b) as specified in the order; and (c) for Customer’s internal business purposes. Each order for Software will identify the Software, license unit of measure, and any time period restriction, if applicable. Such limitations may be technically implemented through the use of authorization codes, license keys, or similar devices.
2.2 Customer agrees that purchases under this Agreement are not contingent on the delivery of any future functionality or features, and are not dependent on any oral or written comments made by Tripwire or its representatives regarding future functionality or features. Customer may choose, but is not required, to provide suggestions, data or other information to Tripwire regarding possible improvements in the operation, functionality or use of Software, in the course of receiving Support, evaluating Software or otherwise. Any inventions, product improvements, modifications or developments made by Tripwire are Tripwire’s exclusive property.
2.3 Customer shall not loan, rent, lease, distribute, or otherwise transfer Software without Tripwire’s prior written consent, except as part of a permanent transfer of the Software as permitted by this Agreement. Customer may copy Software only as reasonably necessary to support the authorized use, as long as the number of licenses in use does not exceed the number of licenses purchased by Customer. Each copy must include all notices embedded in Software as received from Tripwire. All copies remain the property of Tripwire or its licensors. Customer shall not: (a) use the Software or allow its use for developing, enhancing or marketing any product that is competitive with the Software; or (b) disclose to any third party the results of or information pertaining to any testing of the Products against a third party’s products for the purpose of competitive comparison.
2.4 Except as otherwise permitted for interoperability as required by applicable law, Customer shall not reverse-assemble, reverse-compile, reverse-engineer or in any way derive source code from Software. If Customer wishes to exercise any rights to reverse-engineer to ensure interoperability in accordance with applicable law, Customer shall first provide Tripwire with written notice and all reasonably requested information to [email protected]. Tripwire shall assess the claim, and may offer alternatives that reduce any adverse impact on Tripwire’s intellectual property or other rights.
2.5 Customer may allow third party consultants or contractors (“Authorized Third Parties”) to access and use the Software on Customer’s behalf as long as: (a) the use is solely for Customer’s internal business operations; (b) each Authorized Third Party is under written confidentiality obligations with Customer protecting Tripwire’s intellectual property and Confidential Information with terms no less stringent than this Agreement; (c) Customer ensures that the Authorized Third Party’s use of the Software complies with the terms of this Agreement; and (d) on completion of the Authorized Third Party’s services requiring use of the Software, Customer ensures that the Software are immediately and completely uninstalled from Authorized Third Party’s equipment and/or premises, as applicable.
2.6 Customer may move the Software: (a) from one node (i.e. authorized hardware) to another without charge; and (b) from one site to another site. No transfer under this section shall increase the license scope or number of nodes in use by Customer. Except as provided herein, Customer shall not sublicense, assign or otherwise transfer the Software without Tripwire’s prior written consent. Any attempted transfer without Tripwire’s prior written consent shall be a material breach of this Agreement and may, at Tripwire’s option, result in the immediate termination of the licenses and this Agreement.
2.7 All Software is commercial off-the-shelf computer software. Pursuant to US FAR 48 CFR 12.212 and DFAR 48 CFR 227.7202, use, duplication and disclosure of the Software by or for the U.S. Government or a U.S. Government subcontractor is subject solely to the terms of this Agreement, except for terms that are contrary to applicable mandatory federal laws. Unless otherwise agreed to in writing by authorized personnel of Tripwire and Customer, no term or condition required in any U.S. Government contract or related subcontract shall be part of an Order or binding upon Tripwire.
4. CONFIDENTIAL INFORMATION.
4.1 "Confidential Information" means: (a) byte code or source code provided by Tripwire; (b) any authorization keys and passwords delivered in order to operate the Software; (c) Documentation, product road maps and development plans, and pricing information; (d) any Tripwire business, technical or training information that, if disclosed in writing, is marked "confidential" or "proprietary" at the time of disclosure, or, if disclosed orally, is identified as "confidential" or "proprietary" at the time of disclosure; and (e) the specific business terms and pricing set forth in any Order or this Agreement. Confidential Information does not include information that: (i) is or becomes generally known or available to the public through no act or omission of Customer; (ii) is rightfully known to or received by Customer prior to receiving such information from Tripwire or its representatives without restriction as to use or disclosure; or (iii) is independently developed by Customer without use of Confidential Information and without a breach of this Agreement. The existence of this Agreement and the nature of the business relationship between the parties are not Confidential Information.
4.2 Customer will not use Confidential Information except as necessary to exercise the rights granted under this Agreement or to evaluate opportunities to license additional Tripwire product offerings. Customer will not disclose Confidential Information to any person or entity except to employees or Authorized Third Parties whose job performance requires access and who are under confidentiality obligations. The foregoing obligations will not restrict Customer’s disclosure of Confidential Information to the extent required by an order or requirement of a court, administrative agency, or other governmental body, provided that Customer gives reasonable notice to Tripwire to contest such order or requirement. Customer shall give Tripwire written notice of any unauthorized disclosure or use of the Software as soon as Customer learns or becomes aware of the unauthorized disclosure or use.
5. NO WARRANTY.
5.1 TRIPWIRE OFFERS NO WARRANTIES WITH RESPECT TO SOFTWARE, WHICH IS PROVIDED “AS IS.”NEITHER TRIPWIRE NOR ITS LICENSORS OFFER ANY WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SOFTWARE OR OTHER MATERIAL PROVIDED UNDER THIS AGREEMENT. TRIPWIRE OFFERS NO WARRANTY THAT THE SOFTWARE WILL DETECT OR PROTECT AGAINST ALL THREATS OR BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES. TRIPWIRE AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, TERMS, CONDITIONS, AND REPRESENTATIONS: (A) OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY, AND (B) ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE. No oral or written information or advice given by Tripwire or Tripwire’s authorized representatives shall create a warranty or other obligations on behalf of Tripwire.
5.2 Customer assumes full responsibility for selecting the Software to achieve its intended results, and the use of, and results obtained from the Software.
6.1 Tripwire will defend or settle any action brought against Customer and pay all costs, damages and reasonable attorneys’ fees that are finally awarded against Customer or are included in a settlement to which Tripwire is a party, to the extent those amounts are based upon a claim arising during a Support term, that the Software directly infringes any copyright or misappropriates any trade secret or infringes any U.S. patent. Customer agrees that as conditions to Tripwire’s obligations under this Section 6, Customer must: (a) notify Tripwire promptly in writing of the action; (b) provide Tripwire all reasonable information and assistance to settle or defend the action at Tripwire’s request and expense; and (c) grant Tripwire sole authority and control of the defense or settlement of the action. Tripwire will not be responsible for any compromise made or expense incurred without its prior written consent.
6.2 If a claim is made under Subsection 6.1, Tripwire shall at its expense either: (a) replace or modify the Software so that it becomes non-infringing; (b) procure for Customer the right to continue using the Software; or (c) if neither 6.2(a) nor 6.2(b) is commercially reasonable, require the return of the Software or, if obtained electronically, require a certification from Customer that the Software has been destroyed, and refund to Customer any purchase price or license fee paid, less an allowance for use based on a five year straight line depreciation method beginning on the Delivery of the Software.
6.3 Tripwire is not liable for claims based on: (a) combination of Software with any product not furnished by Tripwire; (b) modification of Software other than by Tripwire; (c) modifications made by Tripwire in conformance with Customer’s specifications; (d) use of other than a current unaltered release of Software; (e) any Beta Code; or (f) Software not used in accordance with this Agreement.
6.4. THIS SECTION 6 SETS FORTH TRIPWIRE’S SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND. EXCEPT AS SET FORTH ABOVE, TRIPWIRE AND ITS LICENSORS DISCLAIM ALL IMPLIED OBLIGATIONS WITH RESPECT TO INTELLECTUAL PROPERTY INDEMNIFICATION.
7. LIMITATION OF LIABILITY.
7.1 Tripwire’s liability shall not be limited or excluded in relation to: (a) death or personal injury caused by its negligence or intentional misconduct (or that of its employees or agents); (b) fraudulent misrepresentation; or (c) any other liability that cannot under applicable law be limited or excluded.
7.2 SUBJECT TO SECTION 7.1, NEITHER TRIPWIRE NOR ITS LICENSORS SHALL BE LIABLE FOR: (A) LOSS OF PROFITS; (B) LOSS OF DATA; (C) LOSS OF REVENUE; (D) LOSS OF USE; OR (E) PUNITIVE, EXEMPLARY, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF TRIPWIRE OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.3 SUBJECT TO SECTION 7.1, NEITHER TRIPWIRE’S NOR ITS LICENSORS’ LIABILITY UNDER THIS AGREEMENT SHALL EXCEED IN AGGREGATE, AN AMOUNT EQUAL TO THE AMOUNT PAID OR PAYABLE BY CUSTOMER IN THE 12 MONTHS PRIOR TO THE CLAIM FOR THE SOFTWARE GIVING RISE TO THE CLAIM.
7.5 Tripwire’s Software is developed for general use in a variety of information management environments. They are not designed to directly control the operation of nuclear facilities or for use in a situation in which use or failure of the Product or Services could lead to death or serious bodily injury of any person, or severe physical or environmental damage (“High Risk Activities”). Examples of High Risk Activities include, without limitation, the design or operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, or direct life-support systems. If Customer uses Tripwire Software in High Risk Activities Customer shall be solely responsible for taking all appropriate fail-safe, backup, redundancy and other measures to ensure the safe use of such Software. Notwithstanding anything to the contrary in this Section 8, TRIPWIRE DISCLAIMS ANY LIABILITY FOR ANY DAMAGES CAUSED BY USE OF THE SOFTWARE IN HIGH RISK ACTIVITIES.
8. TERM AND TERMINATION.
8.1 Term and Termination of Licenses. If a Software license or subscription was provided for a limited term (“Term Based License”), such Term Based License will automatically terminate on expiration of the term. Perpetual Software licenses will continue indefinitely under the terms of this Agreement, unless such licenses are terminated pursuant to this Section 8.1. Termination of Support does not automatically terminate any license. Either party may terminate any license or subscription granted hereunder with 30 days’ written notice to the other party if the other party is in material breach of the license or subscription (including non-payment) and fails to cure the breach within the 30-day notice period. In addition, Customer may terminate any license or subscription granted hereunder at any time by written notice to Tripwire. If a license or subscription is terminated, Customer shall stop all use of the affected Software, and shall certify the destruction of all copies of Software that had been subject to the terminated license or subscription, at Tripwire’s written request.
8.2 Effect of Termination. Termination of any license, subscription, or Support will not affect Customer’s obligation to pay for licenses granted or Support provided prior to the termination, which amounts shall immediately be payable at the date of termination. The following sections will survive any termination of this Agreement: 2 (Ownership, Grant of License), 4 (Confidential Information), 5 (No Warranty), 6.4 (Infringement), 7 (Limitation of Liability), 8 (Term and Termination), 9 (Additional Terms).
9. ADDITIONAL TERMS.
9.1 Export. Customer shall comply with all international and national laws that apply to the Software, including U.S. Export Administration Regulations, economic sanctions regulations administered by the Office of Foreign Assets Control, as well as similar restrictions issued by U.S. and other governments, which prohibit the provision of Software to specified destinations, end-users and end uses. Customer specifically represents and warrants that it will not export, re-export, sell, supply or transfer the Software in violation of local laws or to any country or person to which the United States has embargoed or restricted the provision of the Software, including, but not limited to, Cuba, Iran, North Korea, Sudan (North) or Syria, nationals of those countries, or to any other embargoed or restricted destination or person.
9.2 Review of License Usage. On Tripwire's written request, Customer will furnish to Tripwire a certification signed by an officer indicating whether the Software is being used in accordance with this Agreement.
9.3 Third Party Code. The Software contains or is accompanied by certain third party software components (“Third-Party Code”) identified at www.tripwire.com/terms (“Third-Party Notices”). The Third Party Notices may include important licensing and liability disclaimers from the Third-Party Code licensors. Customer’s use of Third-Party Code in conjunction with the Software in accordance with this Agreement is permitted under all such Third-Party Notices. Customer acknowledges that Section 6.1 of this Agreement does not apply to the Third-Party Code.
9.4 Governing Law; Venue. This Agreement shall be governed by and construed under the laws of the State of Delaware, USA, excluding choice of laws rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
9.5 Assignment. Any assignment or transfer of this Agreement by the Customer is prohibited without the prior written consent of Tripwire, and any attempted transfer or assignment without such consent shall be void and without force or effect. The terms of this Agreement shall be binding on permitted successors in interest and assigns.
9.6 Force Majeure. Neither party shall be liable for default or delay in performing its obligations due to causes beyond its reasonable control, as long as such causes continue and the party continues to use commercially reasonable efforts to resume performance. If any such default or delay extends for more than 60 days, the other party shall have the right, without obligation or liability, to cancel any Order or portion thereof affected by such default or delay.
9.7 Severability; Modification; Notice; Waiver. If a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect. This Agreement may only be modified in writing by authorized representatives of the parties. All notices required or authorized under this Agreement must be in writing and shall be sent, as applicable, to the other party’s legal department at the address set forth above, or to such other notice address as the parties specify in writing. Waiver of terms or excuse of breach must be in writing and shall not constitute subsequent consent, waiver or excuse.