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1 TENABLE NETWORK SECURITY, INC.
2 NessusClient
3 SOFTWARE LICENSE AGREEMENT
6 This is a legal agreement ("Agreement") between Tenable Network
7 Security, Inc., a Delaware corporation having offices at
8 7063 Columbia Gateway Drive, Suite 100, Columbia, MD 21046
9 ("Tenable"), and you, the party licensing Software and obtaining
10 the feed services ("You"). This Agreement covers your permitted
11 use of the Software and the Services. BY CLICKING
12 BELOW YOU INDICATE YOUR ACCEPTANCE OF THIS AGREEMENT AND YOU
13 ACKNOWLEDGE THAT YOU HAVE READ
14 ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, UNDERSTAND
15 THEM, AND AGREE TO BE LEGALLY
16 BOUND BY THEM. If You do not agree with the terms of this
17 Agreement, You may not use the Software, as such term is
18 defined below. The Software can only be provided to You by
19 Tenable. The term "Agreement" includes any exhibits to the
20 document.
21 1. Grant of Software License.
22 (a) Grant. Subject to the terms and conditions, and your
23 acceptance, of this Agreement, Tenable
24 grants to You a perpetual, non-exclusive, non-transferable
25 license (the "License") in object
26 code form only to use the Software (i) solely for Your internal
27 operations and internal security
28 purposes to seek and assess information technology
29 vulnerabilities events for Your own
30 networks; and (ii) to provide services to third parties to seek
31 and assess information technology
32 vulnerabilities events on the third party's network. Any rights
33 in the Software not granted in this
34 Agreement are expressly reserved by Tenable.
35 (b) Definition of Software. The term "Software" means (i)
36 NessusClient that You download from any
37 Tenable website, including www.nessus.org, or obtain via CD or
38 any other method; (ii) the
39 associated user manuals and user documentation, if any, as well
40 as any patches, updates,
41 improvements, additions, enhancements and other modifications or
42 revised versions of NessusClient
43 that may be provided to You by Tenable from time to time that
44 were developed by Tenable
45 (c) Maintenance and Support. Tenable will not provide any
46 maintenance or support services as
47 part of this Agreement.
49 2. Term.
50 This Agreement commences on the date on which You execute this
51 Agreement or download, install or use the
52 Software (whichever occurs first) (the "Effective Date") and
53 continues until it is terminated according to the terms of this
54 Agreement.
55 3. Intellectual Property.
56 This Agreement does not transfer to You any title to or any
57 ownership right or interest in the Software. You
58 acknowledge that Tenable owns and retains all right, title and
59 interest in and to the Software. All enhancements,
60 modifications and derivative works that Tenable makes to the
61 Software or accompanying documentation, and all intellectual
62 property rights therein, will be the property of Tenable. Your
63 rights with respect to the Software are limited to the right to
64 use
65 the Software pursuant to the terms and conditions in this
66 Agreement.
67 4. Other Restrictions.
68 You may not directly or indirectly: (i) sell, lease,
69 redistribute or transfer any of the Software on a stand-alone
70 basis;
71 (ii) attempt to derive, obtain or modify the source code of the
72 Software; (iii) reproduce, modify, translate or create
73 derivative
74 works of all or part any of the Software; (iv) rent, lease or
75 loan the Software in any form to any third party or otherwise
76 allow a
77 third party to use the Software; or (v) remove, alter or obscure
78 any proprietary notice, labels, or marks on the Software. You
79 may not sublicense any of the rights granted to You in this
80 Agreement. You may not distribute or otherwise provide Software
81 to third parties. You are responsible for all use of the
82 Software and for compliance with this Agreement; any breach by
83 You
84 or any user using the Software on Your behalf shall be deemed to
85 have been made by You
87 5. Restrictions on Third Party Use and Access.
88 You agree not to deliver or otherwise make available the
89 Software, in whole or in part, to any party other than
90 Tenable, except for purposes specifically related to Your use of
91 the Software without Tenable's prior written consent. You
92 agree to use Your best efforts and to take all reasonable steps
93 to ensure that no unauthorized parties have access to the
94 Software and that no unauthorized copy, publication, disclosure
95 or distribution of the Software, in whole or in part, in any
96 form is made by You or any third party. You agree to notify
97 Tenable of any unauthorized access to, or use, copying,
98 publication, disclosure or distribution of, the Software. You
99 acknowledge that the Software contains valuable confidential
100 information and trade secrets of Tenable or its affiliates and
101 their licensors or suppliers, and that unauthorized access to,
102 or
103 use, copying, publication, disclosure or distribution of, the
104 Software is harmful to Tenable or its affiliates and their
105 licensors or
106 suppliers.
108 6. Warranty and Disclaimer and limitation of liability
109 THE LICENSED MATERIALS ARE LICENSED "AS IS" AND NEITHER TENABLE
110 NOR ITS AFFILIATES MAKE ANY
111 WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, WITH RESPECT TO
112 THE LICENSED MATERIALS, INCLUDING
113 ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
114 PARTICULAR PURPOSE, WHICH ARE EXPRESSLY
115 DISCLAIMED, AND ANY STATEMENTS OR REPRESENTATIONS TO THE
116 CONTRARY MADE BY ANY PARTY OTHER THAN
117 TENABLE ARE VOID. ONLY TO THE EXTENT SUCH EXCLUSION OF ANY
118 IMPLIED WARRANTY IS NOT PERMITTED BY
119 APPLICABLE LAW, THE DURATION OF SUCH IMPLIED WARRANTY IS LIMITED
120 TO THIRTY (30) DAYS OR, IF LONGER, THE
121 MINIMUM DURATION PERMITTED BY APPLICABLE LAW. YOU ASSUME ALL
122 RISK
123 AS TO THE QUALITY, FUNCTION AND PERFORMANCE OF THE LICENSED
124 MATERIALS, IN NO EVENT WILL
125 TENABLE OR ANY OTHER PARTY THAT HAS BEEN INVOLVED IN THE
126 CREATION, PRODUCTION OR DELIVERY OF THE
127 LICENSED MATERIALS BE LIABLE FOR SPECIAL, DIRECT, INDIRECT,
128 RELIANCE, INCIDENTAL, CONSEQUENTIAL OR
129 OTHER DAMAGES, INCLUDING LOSS OF BUSINESS OR PROFITS, LOSS OF OR
130 DAMAGE TO DATA, INFORMATION OR
131 SOFTWARE, OR INABILITY TO USE THE LICENSED MATERIALS, TO ANY
132 PARTY EVEN IF TENABLE OR SUCH OTHER PARTY
133 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
134 Some states may not allow the exclusion or limitation of
135 incidental or consequential damages, so the above
136 limitations and exclusions may not apply to You.
137 7. Exclusion Damages.
138 UNDER NO CIRCUMSTANCES WILL TENABLE BE LIABLE TO YOU OR ANY
139 OTHER PERSON OR ENTITY FOR
140 DIRECT (INCLUDING FOR NEGLIGENCE, STRICT LIABILITY, BREACH OF
141 CONTRACT, MISREPRESENTATION AND OTHER
142 CONTRACT OR TORT CLAIMS), INDIRECT, INCIDENTAL, CONSEQUENTIAL,
143 SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES
144 (INCLUDING NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT,
145 MISREPRESENTATION AND OTHER CONTRACT
146 OR TORT CLAIMS; LOST PROFITS; OR ANY DAMAGES RESULTING FROM LOSS
147 OF DATA, SECURITY BREACH, PROPERTY
148 DAMAGE, LOSS OF REVENUE, LOSS OF BUSINESS OR LOST SAVINGS),
149 ARISING OUT OF OR IN CONNECTION WITH THIS
150 AGREEMENT, THE PERFORMANCE OF THE SOFTWARE OR OF ANY OTHER
151 OBLIGATIONS RELATING TO THIS
152 AGREEMENT, WHETHER OR NOT TENABLE HAS BEEN ADVISED OF THE
153 POSSIBILITY OF SUCH DAMAGES. YOU ARE
154 SOLELY RESPONSIBLE AND LIABLE FOR VERIFYING THE SECURITY,
155 ACCURACY AND ADEQUACY OF ANY OUTPUT FROM
156 THE SOFTWARE, AND FOR ANY RELIANCE THEREON.
157 8. Additional Provisions Regarding Liability.
158 The parties agree that the foregoing limitations will not be
159 read so as to limit any liability to an extent that would not
160 be permitted under applicable law and specifically will not
161 limit any liability for gross negligence, intentional tortious
162 or
163 unlawful conduct or damages for strict liability that may not be
164 limited by law.
165 9. Indemnification.
166 Each of the parties acknowledges and agrees that by entering
167 into and performing its obligations under this
168 Agreement, Tenable will not assume and should not be exposed to
169 the business and operational risks associated with Your
170 business. Accordingly, You agree that you will, at your
171 expense, indemnify, defend and hold Tenable harmless in all
172 claims
173 and actions that seek compensation of any kind for injury or
174 death to persons and/or for damage to property, and that arise
175 out of or relate to Your use of the Software or the solutions
176 You provide to a third party through Your use of the Software.
177 You also agree to pay all settlements, costs, damages, legal
178 fees and expenses finally awarded in all such claims and
179 actions.
180 10. Legal Compliance; Restricted Rights.
181 The Software are provided solely for lawful purposes and use.
182 You are solely responsible for, and agree to
183 perform your obligations in a manner that complies with all
184 applicable national, regional and local laws, statutes,
185 ordinances, regulations, codes and other types of government
186 authority (including those governing export control, unfair
187 competition, anti-discrimination, false advertising, privacy and
188 data protection, and publicity and those identifying and
189 procuring required permits, licenses, approvals, and other
190 consents) ("Laws"). If a charge is made that You are not
191 complying with any such Laws, You will promptly notify Tenable
192 of such charges in writing. Without limiting the foregoing,
193 You agree to comply with all U.S. export Laws and applicable
194 export Laws of Your locality (if You are not in the United
195 States), to ensure that no information or technical data
196 provided pursuant to this Agreement is exported or re-exported
197 directly or indirectly in violation of Law or without first
198 obtaining all required authorizations or licenses. You will, at
199 Your sole
200 cost and expense, obtain and maintain in effect all permits,
201 licenses, approvals and other consents related to Your
202 obligations under this Agreement. You agree, at Your expense,
203 to comply with all foreign exchange and other Laws
204 applicable to You. The Software is licensed subject to
205 Tenable's standard commercial agreement; Software licensed for
206 use
207 by the United States government is provided with "Restricted
208 Rights" only as defined in 48 C.F.R. ¤52.227-14 and 48 C.F.R.
209 ¤252.227-7014 if the commercial terms are deemed not to apply.
210 11. Termination.
211 (a) You may terminate this Agreement at any time by
212 destroying or returning to Tenable the
213 Software, together with all copies, modifications and merged
214 portions of the Software in any
215 form.
216 (b) This Agreement and Your License to use the Software
217 shall terminate automatically if You fail to
218 comply with any term or condition of this Agreement. Immediately
219 after termination of this
220 Agreement, You shall destroy or return to Tenable the Software,
221 together with all copies,
222 modifications and merged portions of the Software in any form,
223 and shall certify to Tenable in
224 writing that through Your best efforts and to the best of your
225 knowledge all such materials have
226 been destroyed or returned to Tenable and removed from host
227 computers on which Software
228 resided.
229 12. Governing Law.
230 This Agreement shall be governed in all respects by the laws of
231 the State of Maryland, USA, without regard to
232 choice-of-law rules or principles. You expressly agree with
233 Tenable that this Agreement shall not be governed by the U.N.
234 Convention on Contracts for the International Sale of Goods, the
235 application of which is expressly excluded.
236 13. Dispute Resolution.
237 You and Tenable submit to the exclusive jurisdiction of the
238 courts of Howard County, Maryland and the United
239 States District Court for Maryland, Baltimore Division, for any
240 question or dispute arising out of or relating to this
241 Agreement.
242 Due to the high costs and time involved in commercial litigation
243 before a jury, the parties waive all right to a jury trial with
244 respect to any and all issues in any action or proceeding
245 arising out of or related to this Agreement.
246 14. Notices.
247 Any notices or other communication required or permitted to be
248 made or given by either Party pursuant to this
249 Agreement will be in writing, in English, and will be deemed to
250 have been duly given when delivered if delivered personally
251 or sent by recognized overnight express courier, to the address
252 specified herein or such other address as Tenable may
253 specify in writing. All notices to Tenable shall be sent to the
254 attention of the Legal Department (unless otherwise specified by
255 Tenable).
256 All notices shall be sent to:
257 Tenable Network Security
258 7063 Columbia Gateway Drive, Suite 100
259 Columbia, MD 21046
260 Attn: Legal Department
261 15. Transfer and Assignment.
262 You may not rent, lease, lend, sublicense or otherwise provide
263 the Software to any third party. You may not assign
264 or otherwise transfer this Agreement without Tenable's prior
265 written consent. You may use the Software to provide services
266 to third parties as expressly provided in this Agreement.
267 16. Publicity.
268 You will not use Tenable's company name or any trademarks,
269 logos, service marks or other intellectual property,
270 or refer to Tenable or any of its employees, in any form of
271 advertising, publicity or release without the prior written
272 approval
273 of Tenable, which Tenable may withhold in its sole discretion.
274 17. Language.
275 The language of this Agreement is English and all notices given
276 under this Agreement must be in English to be
277 effective. No translation, if any, of this Agreement or any
278 notice will be of any effect in the interpretation of this
279 Agreement or
280 in determining the intent of the parties. The parties have
281 expressly agreed that all invoices and related documents be
282 drafted in English.
283 18. Third Parties.
284 This Agreement is not intended nor will it be interpreted to
285 confer any benefit, right or privilege in any person or
286 entity not a party to this Agreement. Any party who is not a
287 party to this Agreement has no right under any Law to enforce
288 any term of this Agreement.
289 19. General.
290 This Agreement constitutes the entire agreement between the
291 parties, and supersedes all other prior or
292 contemporaneous communications between the parties (whether
293 written or oral) relating to the subject matter of this
294 Agreement. No supplement, modification or amendment of this
295 Agreement shall be binding, unless executed in writing by a
296 duly authorized representative of each party to this Agreement.
297 The provisions of this Agreement will be deemed severable,
298 and the unenforceability of any one or more provisions will not
299 affect the enforceability of any other provisions. In addition,
300 if
301 any provision of this Agreement, for any reason, is declared to
302 be unenforceable, the parties will substitute an enforceable
303 provision that, to the maximum extent possible under applicable
304 law, preserves the original intentions and economic
305 positions of the parties. No failure or delay by a party in
306 exercising any right, power or remedy will operate as a waiver
307 of
308 that right, power or remedy, and no waiver will be effective
309 unless it is in writing and signed by the waiving party. If a
310 party
311 waives any right, power or remedy, the waiver will not waive any
312 successive or other right, power or remedy the party may
313 have under this Agreement. Any provision of this Agreement that
314 imposes or contemplates continuing obligations on a party
315 will survive the expiration or termination of this Agreement.
316 "Including" and its derivatives (such as "include" and
317 "includes")
318 mean including without limitation; this term is as defined,
319 whether or not capitalized in this Agreement.