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1 TENABLE NETWORK SECURITY, INC.
2 NESSUS
3 SOFTWARE LICENSE AGREEMENT
5 This is a legal agreement ("Agreement") between
6 Tenable Network Security, Inc., a Delaware
7 corporation having offices at 7063 Columbia Gateway
8 Drive, Suite 100, Columbia, MD 21046
9 ("Tenable"), and you, the party licensing
10 Software and obtaining the feed services ("You").
11 This Agreement covers your permitted use of the
12 Software and the Services. BY CLICKING BELOW YOU
13 INDICATE YOUR ACCEPTANCE OF THIS AGREEMENT AND
14 YOU ACKNOWLEDGE THAT YOU HAVE READ ALL OF THE
15 TERMS AND CONDITIONS OF THIS AGREEMENT,
16 UNDERSTAND THEM, AND AGREE TO BE LEGALLY BOUND BY
17 THEM. If You do not agree with the terms of this
18 Agreement, You may not use the Software, as such
19 term is defined below. The Software can only be
20 provided to You by Tenable. The term
21 "Agreement" includes any exhibits to the document.
24 1. Grant of Software License.
25 (a) Grant. Subject to the terms and conditions,
26 and your acceptance, of this Agreement, Tenable
27 grants to You a perpetual, non-exclusive,
28 non-transferable license (the "License") in
29 object code form only to use the Software (i)
30 solely for Your internal operations and internal
31 security purposes to seek and assess information
32 technology vulnerabilities events for Your own
33 networks; and (ii) to provide services to third
34 parties to seek and assess information technology
35 vulnerabilities events on the third party's
36 network. Any rights in the Software not granted
37 in this Agreement are expressly reserved by
38 Tenable.
39 (b) Definition of Software.
40 (i) The term "Software" means (i) Nessus 3.x that
41 You download from any Tenable website, including
42 www.nessus.org, or obtain via CD or any other
43 method; (ii) the associated user manuals and user
44 documentation, if any, as well as any patches,
45 updates, improvements, additions, enhancements
46 and other modifications or revised versions of
47 Nessus 3.x that may be provided to You by Tenable
48 from time to time that were developed by Tenable;
49 and (iii) any Nessus daemons, command line
50 interfaces, and/or any graphical user interfaces
51 You obtain from Tenable that were developed by
52 Tenable.
53 (ii) Any Software that is not marked as
54 copyrighted by Tenable are not Software as
55 defined under this Agreement and are subject to
56 other license terms.
57 (iii) Tenable has the right to, or the right to
58 license, the Software, including any libraries
59 licensed under LGPL. Contact Tenable for more
60 details.
61 (c) Maintenance and Support. Tenable will not
62 provide any maintenance or support services as
63 part of this Agreement unless You obtain a
64 "Direct Feed Subscription", as such term is
65 defined in Exhibit A, from Tenable.
67 2. Subscriptions.
68 You may obtain a subscription to receive Plugins
69 (as such term is defined in Exhibit A) and
70 updates to the Plugins as further described in
71 Exhibit A, which is incorporated herein by
72 reference.
74 3. Term.
75 This Agreement commences on the date on which You
76 execute this Agreement or download, install or
77 use the Software (whichever occurs first) (the
78 "Effective Date") and continues until it is
79 terminated according to the terms of this
80 Agreement.
82 4. Intellectual Property.
83 This Agreement does not transfer to You any title
84 to or any ownership right or interest in the
85 Software. You acknowledge that Tenable owns and
86 retains all right, title and interest in and to
87 the Software. All enhancements, modifications
88 and derivative works that Tenable makes to the
89 Software or accompanying documentation, and all
90 intellectual property rights therein, will be the
91 property of Tenable. Your rights with respect to
92 the Software are limited to the right to use the
93 Software pursuant to the terms and conditions in
94 this Agreement.
96 5. No Reverse Engineering, Other Restrictions.
97 You may not directly or indirectly: (i) sell,
98 lease, redistribute or transfer any of the
99 Software on a stand-alone basis; (ii) decompile,
100 disassemble, reverse engineer, or otherwise
101 attempt to derive, obtain or modify the source
102 code of the Software; (iii) reproduce, modify,
103 translate or create derivative works of all or
104 part any of the Software; (iv) rent, lease or
105 loan the Software in any form to any third party
106 or otherwise allow a third party to use the
107 Software; or (v) remove, alter or obscure any
108 proprietary notice, labels, or marks on the
109 Software. You may not sublicense any of the
110 rights granted to You in this Agreement. You may
111 not distribute or otherwise provide Software to
112 third parties. You are responsible for all use
113 of the Software and for compliance with this
114 Agreement; any breach by You or any user using
115 the Software on Your behalf shall be deemed to
116 have been made by You.
118 6. Restrictions on Third Party Use and Access.
119 You agree not to deliver or otherwise
120 make available the Software, in whole or in part,
121 to any party other than Tenable, except for
122 purposes specifically related to Your use of the
123 Software without Tenable's prior written consent.
124 You agree to use Your best efforts and to take
125 all reasonable steps to ensure that no
126 unauthorized parties have access to the Software
127 and that no unauthorized copy, publication,
128 disclosure or distribution of the Software, in
129 whole or in part, in any form is made by You or
130 any third party. You agree to notify Tenable of
131 any unauthorized access to, or use, copying,
132 publication, disclosure or distribution of, the
133 Software. You acknowledge that the Software
134 contains valuable confidential information and
135 trade secrets of Tenable or its affiliates and
136 their licensors or suppliers, and that
137 unauthorized access to, or use, copying,
138 publication, disclosure or distribution of, the
139 Software is harmful to Tenable or its affiliates
140 and their licensors or suppliers.
142 7. Confidentiality.
143 As used in this Agreement, "Confidential
144 Information" means any and all information and
145 material that: (i) gives of Tenable some
146 competitive business advantage or the opportunity
147 of obtaining such advantage or is otherwise
148 confidential or a trade secret; (ii) is marked
149 "Confidential," "Restricted," or "Confidential
150 Information" or other similar marking; (iii) is
151 known by You to be confidential or proprietary;
152 or (iv) from all the relevant circumstances,
153 should reasonably be assumed by You to be
154 confidential or proprietary. Confidential
155 Information includes the Software. Confidential
156 Information does not include any information that
157 You can prove: (a) was already known to You
158 without restrictions at the time of its
159 disclosure by Tenable; (b) after its disclosure
160 by Tenable, is made known to You without
161 restrictions by a third party having the right to
162 do so; (c) is or becomes publicly known without
163 violation of this Agreement; or (d) is
164 independently developed by You without reference
165 to the Confidential Information. Confidential
166 Information will remain the property of Tenable,
167 and You will not be deemed by virtue of this
168 Agreement or any access to the Confidential
169 Information to have acquired any right, title or
170 interest in or to the Confidential Information.
171 You may not copy any Confidential Information
172 without Tenable's prior written permission. You
173 may not remove any copyright, trademark,
174 proprietary rights or other notices included in
175 or affixed to any Confidential Information. You
176 may not use the Confidential Information for Your
177 or a third party's benefit, competitive
178 development or any other purpose. You agree: (I)
179 to hold the Confidential Information in strict
180 confidence; (II) to limit disclosure of the
181 Confidential Information to Your own employees
182 having a need to know the Confidential
183 Information for the purposes of this Agreement;
184 (III) not to disclose any Confidential
185 Information to any third party; (IV) to use the
186 Confidential Information solely and exclusively
187 in accordance with the terms of this Agreement in
188 order to carry out Your obligations and exercise
189 Your rights under this Agreement; (V) to afford
190 the Confidential Information at least the same
191 level of protection against unauthorized
192 disclosure or use as You normally uses to protect
193 Your own information of a similar character, but
194 in no event less than reasonable care; and (VI)
195 to notify Tenable promptly of any unauthorized
196 use or disclosure of the Confidential Information
197 and to cooperate with and assist Tenable in every
198 reasonable way to stop or minimize such
199 unauthorized use or disclosure. You agree that
200 if a court of competent jurisdiction determines
201 that You have breached, or attempted or
202 threatened to breach, Your confidentiality
203 obligations to Tenable or Tenable's proprietary
204 rights, money damages, Tenable will suffer
205 irreparable harm and that monetary damages will
206 be inadequate to compensate Tenable for such
207 breach. Accordingly, Tenable, in addition to and
208 not in lieu of any other rights, remedies or
209 damages available to it at law or in equity,
210 shall be entitled to seek appropriate injunctive
211 relief and other measures restraining further
212 attempted or threatened breaches of such
213 obligations without requirement to post any bond.
215 8. Warranty and Disclaimer.
216 (a) Software. Tenable warrants that, for a
217 period of thirty (30) days from the Effective
218 Date (the "Warranty Period"), the unmodified
219 Software will, under normal use, substantially
220 perform the functions described in its technical
221 documentation. If there has been a breach of
222 this warranty, then Tenable's sole obligation,
223 and Your exclusive remedy, will be for Tenable,
224 at its option, to correct the performance of the
225 Software at no charge so that it substantially
226 performs the functions described in its technical
227 documentation or to replace the Software. You
228 acknowledge that, because the license for the
229 Software is at no charge, the remedies described
230 in the preceding sentence are sufficient and can
231 not fail of their essential purpose.
232 (b) Disclaimer. EXCEPT AS SPECIFICALLY SET FORTH
233 IN SECTION 8(a), TENABLE DOES NOT MAKE ANY
234 WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED,
235 OR STATUTORY, INCLUDING ANY WARRANTIES OF TITLE,
236 NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A
237 PARTICULAR PURPOSE, INTEGRATION, PERFORMANCE AND
238 ACCURACY, AND ANY IMPLIED WARRANTIES ARISING FROM
239 STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE
240 OR USAGE OF TRADE, OTHER THAN THOSE WARRANTIES
241 WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION,
242 RESTRICTION, OR MODIFICATION UNDER APPLICABLE
243 LAW. TENABLE MAKES NO WARRANTY THAT THE SOFTWARE
244 WILL OPERATE ERROR-FREE, FREE OF ANY SECURITY
245 DEFECTS OR IN AN UNINTERRUPTED MANNER.
247 9. Exclusion Damages.
248 UNDER NO CIRCUMSTANCES WILL TENABLE BE LIABLE TO
249 YOU OR ANY OTHER PERSON OR ENTITY FOR DIRECT
250 (INCLUDING FOR NEGLIGENCE, STRICT LIABILITY,
251 BREACH OF CONTRACT, MISREPRESENTATION AND OTHER
252 CONTRACT OR TORT CLAIMS), INDIRECT, INCIDENTAL,
253 CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE
254 DAMAGES (INCLUDING NEGLIGENCE, STRICT LIABILITY,
255 BREACH OF CONTRACT, MISREPRESENTATION AND OTHER
256 CONTRACT OR TORT CLAIMS; LOST PROFITS; OR ANY
257 DAMAGES RESULTING FROM LOSS OF DATA, SECURITY
258 BREACH, PROPERTY DAMAGE, LOSS OF REVENUE, LOSS OF
259 BUSINESS OR LOST SAVINGS), ARISING OUT OF OR IN
260 CONNECTION WITH THIS AGREEMENT, THE PERFORMANCE
261 OF THE SOFTWARE OR OF ANY OTHER OBLIGATIONS
262 RELATING TO THIS AGREEMENT, WHETHER OR NOT
263 TENABLE HAS BEEN ADVISED OF THE POSSIBILITY OF
264 SUCH DAMAGES. YOU ARE SOLELY RESPONSIBLE AND
265 LIABLE FOR VERIFYING THE SECURITY, ACCURACY AND
266 ADEQUACY OF ANY OUTPUT FROM THE SOFTWARE, AND FOR
267 ANY RELIANCE THEREON.
269 10. Additional Provisions Regarding Liability.
270 The parties agree that the foregoing limitations
271 will not be read so as to limit any liability to
272 an extent that would not be permitted under
273 applicable law and specifically will not limit
274 any liability for gross negligence, intentional
275 tortious or unlawful conduct or damages for
276 strict liability that may not be limited by law.
278 11. Indemnification.
279 Each of the parties acknowledges and agrees that
280 by entering into and performing its obligations
281 under this Agreement, Tenable will not assume and
282 should not be exposed to the business and
283 operational risks associated with Your business.
284 You acknowledge that Your use of the Software is
285 only a portion of Your overall security solution
286 and that Tenable is not responsible for Your
287 overall security solution. As between You and
288 Tenable, You are (and Tenable is not) responsible
289 for the success or failure of such security
290 solution. Accordingly, You agree that you will,
291 at your expense, indemnify, defend and hold
292 Tenable harmless in all claims and actions that
293 seek compensation of any kind for injury or death
294 to persons and/or for damage to property, and
295 that arise out of or relate to Your security
296 solutions or Your use of the Software or the
297 solutions You provide to a third party through
298 Your use of the Software. You also agree to pay
299 all settlements, costs, damages, legal fees and
300 expenses finally awarded in all such claims and
301 actions.
303 12. Legal Compliance; Restricted Rights.
304 The Software are provided solely for lawful
305 purposes and use. You are solely responsible
306 for, and agree to perform your obligations in a
307 manner that complies with all applicable
308 national, regional and local laws, statutes,
309 ordinances, regulations, codes and other types of
310 government authority (including those governing
311 export control, unfair competition,
312 anti-discrimination, false advertising, privacy
313 and data protection, and publicity and those
314 identifying and procuring required permits,
315 licenses, approvals, and other consents)
316 ("Laws"). If a charge is made that You are not
317 complying with any such Laws, You will promptly
318 notify Tenable of such charges in writing.
319 Without limiting the foregoing, You agree to
320 comply with all U.S. export Laws and applicable
321 export Laws of Your locality (if You are not in
322 the United States), to ensure that no information
323 or technical data provided pursuant to this
324 Agreement is exported or re-exported directly or
325 indirectly in violation of Law or without first
326 obtaining all required authorizations or
327 licenses. You will, at Your sole cost and
328 expense, obtain and maintain in effect all
329 permits, licenses, approvals and other consents
330 related to Your obligations under this Agreement.
331 You agree, at Your expense, to comply with all
332 foreign exchange and other Laws applicable to
333 You. The Software is licensed subject to
334 Tenable's standard commercial agreement; Software
335 licensed for use by the United States government
336 is provided with "Restricted Rights" only as
337 defined in 48 C.F.R. _52.227-14 and 48 C.F.R.
338 _252.227-7014 if the commercial terms are deemed
339 not to apply.
341 13. Termination.
342 (a) You may terminate this Agreement at any time
343 by destroying or returning to Tenable the
344 Software, together with all copies, modifications
345 and merged portions of the Software in any form.
346 (b) This Agreement and Your License to use the
347 Software shall terminate automatically if You
348 fail to comply with any term or condition of this
349 Agreement. Immediately after termination of this
350 Agreement, You shall destroy or return to Tenable
351 the Software, together with all copies,
352 modifications and merged portions of the Software
353 in any form, and shall certify to Tenable in
354 writing that through Your best efforts and to the
355 best of your knowledge all such materials have
356 been destroyed or returned to Tenable and removed
357 from host computers on which Software resided.
359 14. Governing Law.
360 This Agreement shall be governed in all respects
361 by the laws of the State of Maryland, USA,
362 without regard to choice-of-law rules or
363 principles. You expressly agree with Tenable
364 that this Agreement shall not be governed by the
365 U.N. Convention on Contracts for the
366 International Sale of Goods, the application of
367 which is expressly excluded.
369 15. Dispute Resolution.
370 You and Tenable submit to the exclusive
371 jurisdiction of the courts of Howard County,
372 Maryland and the United States District Court for
373 Maryland, Baltimore Division, for any question or
374 dispute arising out of or relating to this
375 Agreement. Due to the high costs and time
376 involved in commercial litigation before a jury,
377 the parties waive all right to a jury trial with
378 respect to any and all issues in any action or
379 proceeding arising out of or related to this
380 Agreement.
382 16. Notices.
383 Any notices or other communication required or
384 permitted to be made or given by either Party
385 pursuant to this Agreement will be in writing, in
386 English, and will be deemed to have been duly
387 given when delivered if delivered personally or
388 sent by recognized overnight express courier, to
389 the address specified herein or such other
390 address as Tenable may specify in writing. All
391 notices to Tenable shall be sent to the attention
392 of the Legal Department (unless otherwise
393 specified by Tenable).
394 All notices shall be sent to:
395 Tenable Network Security
396 7063 Columbia Gateway Drive, Suite 100
397 Columbia, MD 21046
398 Attn: Legal Department
400 17. Transfer and Assignment.
401 You may not rent, lease, lend, sublicense or
402 otherwise provide the Software to any third
403 party. You may not assign or otherwise transfer
404 this Agreement without Tenable's prior written
405 consent. You may use the Software to provide
406 services to third parties as expressly provided
407 in this Agreement.
409 18. Publicity.
410 You will not use Tenable's company name or any
411 trademarks, logos, service marks or other
412 intellectual property, or refer to Tenable or any
413 of its employees, in any form of advertising,
414 publicity or release without the prior written
415 approval of Tenable, which Tenable may withhold
416 in its sole discretion.
418 19. Language.
419 The language of this Agreement is English and all
420 notices given under this Agreement must be in
421 English to be effective. No translation, if any,
422 of this Agreement or any notice will be of any
423 effect in the interpretation of this Agreement or
424 in determining the intent of the parties. The
425 parties have expressly agreed that all invoices
426 and related documents be drafted in English.
428 20. Third Parties.
429 This Agreement is not intended nor will it be
430 interpreted to confer any benefit, right or
431 privilege in any person or entity not a party to
432 this Agreement. Any party who is not a party to
433 this Agreement has no right under any Law to
434 enforce any term of this Agreement.
436 21. Trademarks.
437 Nessus is a trademark of Tenable. Tenable does
438 not grant to You, either expressly or by
439 implication, any license or permission under this
440 Agreement to use any of the Tenable marks
441 (including trademarks, service marks, trade
442 names, trade dress, symbols, logos, designs,
443 domain names, slogans and other source
444 identifiers) (collectively, the "Marks").
446 22. General.
447 This Agreement constitutes the entire agreement
448 between the parties, and supersedes all other
449 prior or contemporaneous communications between
450 the parties (whether written or oral) relating to
451 the subject matter of this Agreement. No
452 supplement, modification or amendment of this
453 Agreement shall be binding, unless executed in
454 writing by a duly authorized representative of
455 each party to this Agreement. The provisions of
456 this Agreement will be deemed severable, and the
457 unenforceability of any one or more provisions
458 will not affect the enforceability of any other
459 provisions. In addition, if any provision of
460 this Agreement, for any reason, is declared to be
461 unenforceable, the parties will substitute an
462 enforceable provision that, to the maximum extent
463 possible under applicable law, preserves the
464 original intentions and economic positions of the
465 parties. No failure or delay by a party in
466 exercising any right, power or remedy will
467 operate as a waiver of that right, power or
468 remedy, and no waiver will be effective unless it
469 is in writing and signed by the waiving party.
470 If a party waives any right, power or remedy, the
471 waiver will not waive any successive or other
472 right, power or remedy the party may have under
473 this Agreement. Any provision of this Agreement
474 that imposes or contemplates continuing
475 obligations on a party will survive the
476 expiration or termination of this Agreement.
477 "Including" and its derivatives (such as
478 "include" and "includes") mean including without
479 limitation; this term is as defined, whether or
480 not capitalized in this Agreement.
481 EXHIBIT A
482 TENABLE NETWORK SECURITY, INC.
483 SUBSCRIPTION AGREEMENT
485 This is a legal agreement ("Subscription
486 Agreement") between Tenable Network Security,
487 Inc., a Delaware corporation having offices at
488 7063 Columbia Gateway Drive, Suite 100, Columbia, MD
489 21046 ("Tenable"), and you, the party downloading
490 the Plugins as defined below ("You"), through
491 Tenable's Subscription service as defined below.
492 This Subscription Agreement covers your permitted
493 use of the Plugins. BY CLICKING BELOW YOU
494 INDICATE YOUR ACCEPTANCE OF THIS SUBSCRIPTION
495 AGREEMENT AND YOU ACKNOWLEDGE THAT YOU HAVE READ
496 ALL OF THE TERMS AND CONDITIONS OF THIS
497 SUBSCRIPTION AGREEMENT, UNDERSTAND THEM, AND
498 AGREE TO BE LEGALLY BOUND BY THEM. If You do not
499 agree with the terms of this Subscription
500 Agreement, You may not use the Plugins as defined
501 below. The Plugins can only be provided to You
502 by Tenable.
504 1) Grant of Plugins License.
505 i) Grant. Subject to the terms and conditions,
506 and your acceptance, of this Subscription
507 Agreement, Tenable grants to You a perpetual,
508 non-exclusive, non-transferable license (the
509 "License") in object code form only to use the
510 Plugins (a) solely for Your internal operations
511 and internal security purposes to seek and assess
512 information technology vulnerabilities events for
513 Your own networks; and (b) to provide services to
514 third parties to seek and assess information
515 technology vulnerabilities events on the third
516 party's network. Any rights in the Plugins not
517 granted in this Subscription Agreement are
518 expressly reserved by Tenable.
519 ii) Definition of Plugins. The term "Plugins"
520 means (i) any plugins (and related updates) that
521 are marked as copyrighted by Tenable. Any
522 plugins or components that are not marked as
523 copyrighted by Tenable are not Plugins as defined
524 under this Subscription Agreement and are subject
525 to other license terms.
526 iii) Use. You agree to use the Plugins only in
527 conjunction with Nessus or NeWT vulnerability
528 scanner programs obtained directly from
529 www.nessus.org or www.tenablesecurity.com and
530 registered with Tenable ("Registered Scanners")
531 and for which You have paid the applicable fee,
532 if any. Your use of the Plugins will be in
533 accordance with one of the Subscriptions
534 described in Section 2 below.
536 2) Subscriptions.
537 i) General. The Registered Feed Subscription and
538 Direct Feed Subscription include vulnerability
539 detection programs not developed by Tenable or
540 its licensors, which are licensed to You under
541 separate agreements. The terms and conditions of
542 this Subscription Agreement do not apply to such
543 vulnerability detection programs.
544 ii) Registered Feed Subscription. The Registered
545 Feed Subscription permits You to use the Plugins
546 in conjunction with Registered Scanners to detect
547 vulnerabilities only on your system or network or
548 on the system or network of a third party for
549 which you perform scanning services, auditing
550 services, incident response services,
551 vulnerability assessment services or other
552 security consulting services.
553 iii) Direct Feed Subscription. The Direct Feed
554 Subscription permits You to use the Plugins in
555 conjunction with Registered Scanners to detect
556 vulnerabilities only on your system or network or
557 on the system or network of a third party for
558 which you perform scanning services, auditing
559 services, incident response services,
560 vulnerability assessment services or other
561 security consulting services; provided that You
562 have paid the applicable annual subscription fee
563 for each Registered Scanner in conjunction with
564 which You will use the Plugins. You will receive
565 the Direct Feed Subscription and email support if
566 you use this Direct Feed Subscription with the
567 Supported commercial version of Nessus (for
568 clarification, a commercial version of Nessus
569 means Nessus version 3 or better which was
570 developed, copyrighted and distributed by Tenable
571 and not released as open source or licensed under
572 the GPL). The term "Supported" means the list of
573 Operating System distribution(s) included in the
574 Plugin FAQ or Nessus FAQ found on any Tenable
575 website, including www.nessus.org. For the
576 Direct Feed Subscription, You agree to pay a
577 subscription fee to Tenable for each system on
578 which you have installed a Registered Scanner.
580 3) Term.
581 This Subscription Agreement commences on the date
582 on which You execute this Subscription Agreement
583 or download, install or use the Plugins
584 (whichever occurs first) (the "Effective Date")
585 and continues until it is terminated according to
586 the terms of this Subscription Agreement.
588 4) Intellectual Property.
589 This Subscription Agreement does not transfer to
590 You any title to or any ownership right or
591 interest in the Plugins. You acknowledge that
592 Tenable owns and retains all right, title and
593 interest in and to the Plugins. All
594 enhancements, modifications and derivative works
595 that Tenable makes to the Plugins or accompanying
596 documentation, and all intellectual property
597 rights therein, will be the property of Tenable.
598 Your rights with respect to the Plugins are
599 limited to the right to use the Plugins pursuant
600 to the terms and conditions in this Subscription
601 Agreement.
603 5) No Reverse Engineering, Other Restrictions.
604 You may not directly or indirectly: (i) sell,
605 lease, redistribute or transfer any of the
606 Plugins on a stand-alone basis; (ii) decompile,
607 disassemble, reverse engineer, or otherwise
608 attempt to derive, obtain or modify the source
609 code of the Plugins; (iii) reproduce, modify,
610 translate or create derivative works of all or
611 part any of the Plugins; (iv) rent, lease or loan
612 the Plugins in any form to any third party or
613 otherwise allow a third party to use the Plugins;
614 or (v) remove, alter or obscure any proprietary
615 notice, labels, or marks on the Plugins. You may
616 not sublicense any of the rights granted to You
617 in this Subscription Agreement. You may not
618 distribute or otherwise provide Plugins to third
619 parties. You are responsible for all use of the
620 Plugins and for compliance with this Subscription
621 Agreement; any breach by You or any user using
622 the Plugins on Your behalf shall be deemed to
623 have been made by You.
625 6) Restrictions on Third Party Use and Access.
626 You agree not to deliver or otherwise
627 make available the Plugins, in whole or in part,
628 to any party other than Tenable, except for
629 purposes specifically related to Your use of the
630 Plugins without Tenable's prior written consent.
631 You agree to use Your best efforts and to take
632 all reasonable steps to ensure that no
633 unauthorized parties have access to the Plugins
634 and that no unauthorized copy, publication,
635 disclosure or distribution of the Plugins, in
636 whole or in part, in any form is made by You or
637 any third party. You agree to notify Tenable of
638 any unauthorized access to, or use, copying,
639 publication, disclosure or distribution of the
640 Plugins. You acknowledge that the Plugins
641 contains valuable confidential information and
642 trade secrets of Tenable or its affiliates and
643 their licensors or suppliers, and that
644 unauthorized access to, or use, copying,
645 publication, disclosure or distribution of the
646 Plugins is harmful to Tenable or its affiliates
647 and their licensors or suppliers.
649 7) Confidentiality.
650 As used in this Subscription Agreement,
651 "Confidential Information" means any and all
652 information and material that: (i) gives of
653 Tenable some competitive business advantage or
654 the opportunity of obtaining such advantage or is
655 otherwise confidential or a trade secret; (ii) is
656 marked "Confidential," "Restricted," or
657 "Confidential Information" or other similar
658 marking; (iii) is known by You to be confidential
659 or proprietary; or (iv) from all the relevant
660 circumstances, should reasonably be assumed by
661 You to be confidential or proprietary.
662 Confidential Information includes the Plugins and
663 Subscriptions. Confidential Information does not
664 include any information that You can prove: (a)
665 was already known to You without restrictions at
666 the time of its disclosure by Tenable; (b) after
667 its disclosure by Tenable, is made known to You
668 without restrictions by a third party having the
669 right to do so; (c) is or becomes publicly known
670 without violation of this Subscription Agreement;
671 or (d) is independently developed by You without
672 reference to the Confidential Information.
673 Confidential Information will remain the property
674 of Tenable, and You will not be deemed by virtue
675 of this Subscription Agreement or any access to
676 the Confidential Information to have acquired any
677 right, title or interest in or to the
678 Confidential Information. You may not copy any
679 Confidential Information without Tenable's prior
680 written permission. You may not remove any
681 copyright, trademark, proprietary rights or other
682 notices included in or affixed to any
683 Confidential Information. You may not use the
684 Confidential Information for Your or a third
685 party's benefit, competitive development or any
686 other purpose. You agree: (I) to hold the
687 Confidential Information in strict confidence;
688 (II) to limit disclosure of the Confidential
689 Information to Your own employees having a need
690 to know the Confidential Information for the
691 purposes of this Subscription Agreement; (III)
692 not to disclose any Confidential Information to
693 any third party; (IV) to use the Confidential
694 Information solely and exclusively in accordance
695 with the terms of this Subscription Agreement in
696 order to carry out Your obligations and exercise
697 Your rights under this Subscription Agreement;
698 (V) to afford the Confidential Information at
699 least the same level of protection against
700 unauthorized disclosure or use as You normally
701 uses to protect Your own information of a similar
702 character, but in no event less than reasonable
703 care; and (VI) to notify Tenable promptly of any
704 unauthorized use or disclosure of the
705 Confidential Information and to cooperate with
706 and assist Tenable in every reasonable way to
707 stop or minimize such unauthorized use or
708 disclosure. You agree that if a court of
709 competent jurisdiction determines that You have
710 breached, or attempted or threatened to breach,
711 Your confidentiality obligations to Tenable or
712 Tenable's proprietary rights, money damages,
713 Tenable will suffer irreparable harm and that
714 monetary damages will be inadequate to compensate
715 Tenable for such breach. Accordingly, Tenable,
716 in addition to and not in lieu of any other
717 rights, remedies or damages available to it at
718 law or in equity, shall be entitled to seek
719 appropriate injunctive relief and other measures
720 restraining further attempted or threatened
721 breaches of such obligations without requirement
722 to post any bond.
724 8) Disclaimer of Warranties.
725 YOU EXPRESSLY AGREE THAT USE OF THE
726 PLUGINS AND THE SUBSCRIPTIONS ARE AT YOUR SOLE
727 RISK. THE SUBSCRIPTONS ARE AVAILABLE STRICTLY ON
728 AN "AS IS" AND "AS AVAILABLE" BASIS. TENABLE
729 DOES NOT MAKE ANY WARRANTIES OF ANY KIND, WHETHER
730 EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY
731 WARRANTIES OF TITLE, NON-INFRINGEMENT,
732 MERCHANTABILITY, FITNESS FOR A PARTICULAR
733 PURPOSE, INTEGRATION, PERFORMANCE AND ACCURACY,
734 AND ANY IMPLIED WARRANTIES ARISING FROM STATUTE,
735 COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE
736 OF TRADE, OTHER THAN THOSE WARRANTIES WHICH ARE
737 IMPLIED BY AND INCAPABLE OF EXCLUSION,
738 RESTRICTION, OR MODIFICATION UNDER APPLICABLE
739 LAW. TENABLE MAKES NO WARRANTY THAT THE PLUGINS
740 OR SUBSCRIPTIONS WILL OPERATE ERROR-FREE, FREE OF
741 ANY SECURITY DEFECTS OR IN AN UNINTERRUPTED
742 MANNER.
744 9) Limitation of Liability.
745 IF YOU SHOULD BECOME ENTITLED TO CLAIM DAMAGES
746 FROM TENABLE (INCLUDING FOR NEGLIGENCE, STRICT
747 LIABILITY, BREACH OF CONTRACT, MISREPRESENTATION
748 AND OTHER CONTRACT OR TORT CLAIMS) TENABLE WILL
749 BE LIABLE ONLY FOR THE AMOUNT OF YOUR ACTUAL
750 DIRECT DAMAGES, NOT TO EXCEED (IN THE AGGREGATE
751 FOR ALL CLAIMS) THE FEES, IF ANY, YOU PAID TO
752 TENABLE
754 10) Exclusion of Other Damages.
755 UNDER NO CIRCUMSTANCES WILL TENABLE BE
756 LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR
757 ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL,
758 EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING
759 NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT,
760 MISREPRESENTATION AND OTHER CONTRACT OR TORT
761 CLAIMS; LOST PROFITS; OR ANY DAMAGES RESULTING
762 FROM LOSS OF DATA, SECURITY BREACH, PROPERTY
763 DAMAGE, LOSS OF REVENUE, LOSS OF BUSINESS OR LOST
764 SAVINGS), ARISING OUT OF OR IN CONNECTION WITH
765 THIS SUBSCRIPTION AGREEMENT, THE PERFORMANCE OF
766 THE PLUGINS OR SUBSCRIPTIONS OR OF ANY OTHER
767 OBLIGATIONS RELATING TO THIS SUBSCRIPTION
768 AGREEMENT, WHETHER OR NOT TENABLE HAS BEEN
769 ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU
770 ARE SOLELY RESPONSIBLE AND LIABLE FOR VERIFYING
771 THE SECURITY, ACCURACY AND ADEQUACY OF ANY OUTPUT
772 FROM THE PLUGINS AND SUBSCRIPTIONS, AND FOR ANY
773 RELIANCE THEREON.
775 11) Additional Provisions Regarding Liability.
776 The parties agree that the foregoing limitations
777 will not be read so as to limit any liability to
778 an extent that would not be permitted under
779 applicable law and specifically will not limit
780 any liability for gross negligence, intentional
781 tortious or unlawful conduct or damages for
782 strict liability that may not be limited by law.
784 12) Indemnification.
785 Each of the parties acknowledges and agrees that
786 by entering into and performing its obligations
787 under this Subscription Agreement, Tenable will
788 not assume and should not be exposed to the
789 business and operational risks associated with
790 Your business. You acknowledge that Your use of
791 the Plugins and Subscriptions is only a portion
792 of Your overall security solution and that
793 Tenable is not responsible for Your overall
794 security solution. As between You and Tenable,
795 You are (and Tenable is not) responsible for the
796 success or failure of such security solution.
797 Accordingly, You agree that you will, at your
798 expense, indemnify, defend and hold Tenable
799 harmless in all claims and actions that seek
800 compensation of any kind for injury or death to
801 persons and/or for damage to property, and that
802 arise out of or relate to Your security solutions
803 or Your use of the Plugins and Subscriptions, or
804 the solutions You provide to a third party
805 through Your use of the Plugins and
806 Subscriptions. You also agree to pay all
807 settlements, costs, damages, legal fees and
808 expenses finally awarded in all such claims and
809 actions.
811 13) Your Payment Obligations.
812 If You obtain a Direct Feed Subscription, You
813 agree to pay any and all amounts due or incurred
814 by You as specified in the invoice provided by
815 Tenable in consideration for Your obtaining such
816 Direct Feed Subscription (the "Fees"). Payment
817 is due within thirty (30) days of the date of
818 invoice. You agree to pay directly or reimburse
819 Tenable for any taxes (including, sales or excise
820 taxes, value added taxes, landing fees, import
821 duties and the like), however designated and
822 whether foreign or domestic, arising out of this
823 Agreement, imposed on the Plugins or the use
824 thereof, or Tenable's performance under this
825 Agreement. You agree to pay Tenable's invoices
826 without deducting any present or future taxes,
827 withholdings or other charges except those
828 deductions it is legally required to make. If
829 You are legally required to make any deductions,
830 You agree to pay Tenable such amounts as are
831 necessary to make the net amounts remaining after
832 such deductions equal to the stated amount due
833 under this Agreement. The payments or
834 reimbursements will be in such amounts as are
835 sufficient to relieve Tenable from owing any
836 further taxes, either directly or on the basis of
837 the payments made under this Agreement.
838 Notwithstanding the foregoing, Tenable will be
839 solely responsible for its income tax obligations
840 and all employer reporting and payment
841 obligations with respect to its personnel. You
842 agree to pay any interest and penalties imposed
843 by any taxing authorities to the extent such
844 interest and penalties are applicable to taxes
845 not paid at Your request or as a result of
846 reliance by Tenable on Your representations. If
847 a certificate of exemption or similar document or
848 proceeding is necessary in order to exempt any
849 transaction from a tax, You will obtain such
850 certificate or document.
851 14) Legal Compliance; Restricted Rights.
852 The Plugins and Subscriptions are provided solely
853 for lawful purposes and use. You are solely
854 responsible for, and agree to perform your
855 obligations in a manner that complies with all
856 applicable national, regional and local laws,
857 statutes, ordinances, regulations, codes and
858 other types of government authority (including
859 those governing export control, unfair
860 competition, anti-discrimination, false
861 advertising, privacy and data protection, and
862 publicity and those identifying and procuring
863 required permits, licenses, approvals, and other
864 consents) ("Laws"). If a charge is made that You
865 are not complying with any such Laws, You will
866 promptly notify Tenable of such charges in
867 writing. Without limiting the foregoing, You
868 agree to comply with all U.S. export Laws and
869 applicable export Laws of Your locality (if You
870 are not in the United States), to ensure that no
871 information or technical data provided pursuant
872 to this Subscription Agreement is exported or
873 re-exported directly or indirectly in violation
874 of Law or without first obtaining all required
875 authorizations or licenses. You will, at Your
876 sole cost and expense, obtain and maintain in
877 effect all permits, licenses, approvals and other
878 consents related to Your obligations under this
879 Subscription Agreement. You agree, at Your
880 expense, to comply with all foreign exchange and
881 other Laws applicable to You. The Plugins is
882 licensed subject to Tenable's standard commercial
883 agreement; Plugins licensed for use by the United
884 States government is provided with "Restricted
885 Rights" only as defined in 48 C.F.R. _52.227-14
886 and 48 C.F.R. _252.227-7014 if the commercial
887 terms are deemed not to apply.
889 15) Termination.
890 i) You may terminate this Subscription Agreement
891 at any time by destroying or returning to Tenable
892 the Plugins, together with all copies,
893 modifications and merged portions of the Plugins
894 in any form.
895 ii) This Subscription Agreement and Your License
896 to use the Plugins and Subscriptions shall
897 terminate automatically if You fail to comply
898 with any term or condition of this Subscription
899 Agreement or if the Nessus Software License
900 Agreement between You and Tenable terminates.
901 Immediately after termination of this
902 Subscription Agreement, You shall destroy or
903 return to Tenable the Plugins, together with all
904 copies, modifications and merged portions of the
905 Plugins in any form, and shall certify to Tenable
906 in writing that through Your best efforts and to
907 the best of your knowledge all such materials
908 have been destroyed or returned to Tenable and
909 removed from host computers on which Plugins
910 resided.
912 16) Governing Law.
913 This Subscription Agreement shall be governed in
914 all respects by the laws of the State of
915 Maryland, USA, without regard to choice-of-law
916 rules or principles. You expressly agree with
917 Tenable that this Subscription Agreement shall
918 not be governed by the U.N. Convention on
919 Contracts for the International Sale of Goods,
920 the application of which is expressly excluded.
922 17) Dispute Resolution.
923 You and Tenable submit to the exclusive
924 jurisdiction of the courts of Howard County,
925 Maryland and the United States District Court for
926 Maryland, Baltimore Division, for any question or
927 dispute arising out of or relating to this
928 Subscription Agreement. Due to the high costs
929 and time involved in commercial litigation before
930 a jury, the parties waive all right to a jury
931 trial with respect to any and all issues in any
932 action or proceeding arising out of or related to
933 this Subscription Agreement.
935 18) Notices.
936 Any notices or other communication required or
937 permitted to be made or given by either Party
938 pursuant to this Subscription Agreement will be
939 in writing, in English, and will be deemed to
940 have been duly given when delivered if delivered
941 personally or sent by recognized overnight
942 express courier, to the address specified herein
943 or such other address as Tenable may specify in
944 writing. All notices to Tenable shall be sent to
945 the attention of the Legal Department (unless
946 otherwise specified by Tenable).
947 All notices shall be sent to:
948 Tenable Network Security
949 7063 Columbia Gateway Drive, Suite 100
950 Columbia, MD 21046
951 Attn: Legal Department
953 19) Transfer and Assignment.
954 You may not rent, lease, lend, sublicense or
955 otherwise provide the Plugins to any third party.
956 You may not assign or otherwise transfer this
957 Subscription Agreement without Tenable's prior
958 written consent. You may use the Plugins and
959 Subscriptions to provide services to third
960 parties as expressly provided in this
961 Subscription Agreement.
963 20) Publicity.
964 You will not use Tenable's company name or any
965 trademarks, logos, service marks or other
966 intellectual property, or refer to Tenable or any
967 of its employees, in any form of advertising,
968 publicity or release without the prior written
969 approval of Tenable, which Tenable may withhold
970 in its sole discretion.
972 21) Language.
973 The language of this Subscription Agreement is
974 English and all notices given under this
975 Subscription Agreement must be in English to be
976 effective. No translation, if any, of this
977 Subscription Agreement or any notice will be of
978 any effect in the interpretation of this
979 Subscription Agreement or in determining the
980 intent of the parties. The parties have
981 expressly agreed that all invoices and related
982 documents be drafted in English.
984 22) Third Parties.
985 This Subscription Agreement is not intended nor
986 will it be interpreted to confer any benefit,
987 right or privilege in any person or entity not a
988 party to this Subscription Agreement. Any party
989 who is not a party to this Subscription Agreement
990 has no right under any Law to enforce any term of
991 this Subscription Agreement.
993 23) Trademarks.
994 Nessus is a trademark of Tenable. Tenable does
995 not grant to You, either expressly or by
996 implication, any license or permission under this
997 Subscription Agreement to use any of the Tenable
998 marks (including trademarks, service marks, trade
999 names, trade dress, symbols, logos, designs,
1000 domain names, slogans and other source
1001 identifiers) (collectively, the "Marks").
1003 24) General.
1004 This Subscription Agreement constitutes the
1005 entire agreement between the parties, and
1006 supersedes all other prior or contemporaneous
1007 communications between the parties (whether
1008 written or oral) relating to the subject matter
1009 of this Subscription Agreement. No supplement,
1010 modification or amendment of this Subscription
1011 Agreement shall be binding, unless executed in
1012 writing by a duly authorized representative of
1013 each party to this Subscription Agreement. The
1014 provisions of this Subscription Agreement will be
1015 deemed severable, and the unenforceability of any
1016 one or more provisions will not affect the
1017 enforceability of any other provisions. In
1018 addition, if any provision of this Subscription
1019 Agreement, for any reason, is declared to be
1020 unenforceable, the parties will substitute an
1021 enforceable provision that, to the maximum extent
1022 possible under applicable law, preserves the
1023 original intentions and economic positions of the
1024 parties. No failure or delay by a party in
1025 exercising any right, power or remedy will
1026 operate as a waiver of that right, power or
1027 remedy, and no waiver will be effective unless it
1028 is in writing and signed by the waiving party.
1029 If a party waives any right, power or remedy, the
1030 waiver will not waive any successive or other
1031 right, power or remedy the party may have under
1032 this Subscription Agreement. Any provision of
1033 this Subscription Agreement that imposes or
1034 contemplates continuing obligations on a party
1035 will survive the expiration or termination of
1036 this Subscription Agreement. "Including" and its
1037 derivatives (such as "include" and "includes")
1038 mean including without limitation; this term is
1039 as defined, whether or not capitalized in this
1040 Subscription Agreement.