Product License Agreement
The parties to this agreement are you (the end-user) and Brandefense Inc. (“Brandefense”). CAREFULLY READ THE FOLLOWING LEGAL AGREEMENT (THE OR THIS “AGREEMENT” OR “EULA”). USE OF BRANDEFENSE PRODUCT(S) AND ANY UPDATES THERETO, SOFTWARE AND FIRMWARE INCLUDED THEREIN BY BRANDEFENSE, AND STAND-ALONE SOFTWARE PRODUCTS SOLD BY BRANDEFENSE (TOGETHER, THE “PRODUCTS” and/or “SOFTWARE”) CONSTITUTES ACCEPTANCE BY YOU OF THE TERMS IN THIS AGREEMENT, AS AMENDED OR UPDATED FROM TIME TO TIME IN BRANDEFENSE’S DISCRETION BY BRANDEFENSE PUBLISHING AN AMENDED OR UPDATED VERSION. BRANDEFENSE SHALL NOT BE BOUND BY ANY ADDITIONAL AND/OR CONFLICTING PROVISIONS IN ANY ORDER, RELEASE, ACCEPTANCE OR OTHER WRITTEN CORRESPONDENCE OR OTHER WRITTEN OR VERBAL COMMUNICATION UNLESS EXPRESSLY AGREED TO IN A WRITING SIGNED BY THE AUTHORIZED REPRESENTATIVE OF BRANDEFENSE. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT 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 OF THE PRODUCT, NOTIFY BRANDEFENSE AT firstname.lastname@example.org OF REQUESTED EULA CHANGES.
1. License Grant
This is a license agreement between you and Brandefense, not a sales agreement. The term “Software”, as used throughout this Agreement, includes all Brandefense and third party firmware and software provided to you with, or incorporated into, Brandefense appliances and any stand-alone software provided to you by Brandefense, and the term “Software” includes any accompanying documentation, any updates and enhancements of the software or firmware provided to you by Brandefense, at its option. Brandefense grants to you a non-transferable (except as provided in section 5 (“Transfer”), non-exclusive, revocable (in the event of your failure to comply with these terms, in the event of termination, or in the event Brandefense is not properly paid for the applicable Product) license to use the Software solely for your internal business purposes, in accordance with the terms set forth in this Agreement and subject to any further restrictions in Brandefense documentation (including license term restrictions), and solely on the Brandefense appliance unless and except set forth in the published documentation otherwise. You agree that, except for the limited, specific license rights granted in this section 1, you receive no license rights to the Software.
2. Limitation on Use.
You are prohibited from and may not attempt to, and, if you are a corporation, you are responsible to prevent your employees and contractors from attempting to: (a) modify, translate, reverse engineer, decompile, disassemble, create derivative works based on, sublicense, or distribute the Software; (b) rent or lease any rights in the Software in any form to any third party or make the Software available or accessible to third parties in any other manner ; (c) transfer assign or sublicense right to any other person or entity (except as provided in section 5): (d) remove any proprietary notice, labels, or marks on the Software, Products, and containers; (e) use the Software to determine, or disclose the results of, any benchmarking or performance measurements; (f) interfere with a platform for use of the Software; (g) use the Software on a device not owned and controlled by you; (h) use automated means to access online portions of the platform for the Software; (i) use the Software for thirdparty training, commercial time-sharing or service bureau use or (except as expressly set forth in this Agreement) use the Software to provide services to third parties, (j) share non-public features or content of the software with any third party; (k) access the software in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the software, or to copy any ideas, features, functions or graphics of the software; or, (l) engage in web scraping or data scraping on or related to the software, including without limitation, collection of information through any software that simulates human activity or any bot or web crawler.
3. Proprietary Rights
All rights (including copyrights, trade secret, patent and other intellectual property rights), title, interest in and to the Software and any Product, and any copy thereof remain with Brandefense. You acknowledge that no title or other intellectual property rights in the Software or other Products is transferred to you and you will not acquire any rights to the Software or other Products except for the specific limited license as expressly set forth in section 1 (“License Grant”) above. You expressly agree and acknowledge that Brandefense owns, retains, and shall retain all intellectual property rights in and to, and you have no intellectual property rights in and to, the Products and the Software other than the License Grant. You agree to keep confidential all Brandefense confidential information and only to use such information for the purposes for which Brandefense disclosed it.
4. Term and Termination
The term of the license is the shorter of (a) the term as set forth in the ordering documents, other Brandefense documentation, or per Brandefense practices or policies (such as with evaluation or beta licenses or subscription or other term licenses) and (b) for the duration of Brandefense’s copyright in the Software. Brandefense may terminate this Agreement, and the licenses and other rights herein, immediately without notice if you breach or fail to comply with any of the terms and conditions of this Agreement or for other reasons as stated in Brandefense’s other documentation. You agree that, upon such termination, you will cease using the Software and any Product, you will not claim any compensation and either destroy all copies of the Brandefense documentation or return all materials to Brandefense.
If you are a Brandefense contracted and authorized reseller or distributor of Products, you may transfer (not rent or lease unless specifically agreed to in writing by Brandefense) the Software to one end user according to Brandefense authorized reseller or distributor policy and related documents, provided that: (i) you ensure that your customer and the end user receives a copy of this Agreement, is bound by its terms and conditions, and, by selling the Product or Software, you hereby agree to enforce the terms in this Agreement against such end user, (ii) you at all times comply with all applicable United States laws and regulations, and (iii) you agree to refund any fees paid to you by an end user who purchased Product(s) from you but does not agree to the terms contained in this Agreement and therefore wishes to return the Product(s) as provided for in this Agreement. Further, if you are a non-authorized reseller of Products and Services, you are not authorized to sell Product(s), Software or Services, but, regardless, by selling Product(s), Software or Services, you hereby agree you are bound by the restrictions and obligations herein and are bound to: (i) ensure that your customer and the end user receive a copy of this Agreement and are bound in full by all restrictions and obligations herein (ii) enforce the restrictions and obligations in this Agreement against such customer and/or end user, (iii) comply with all applicable United States laws and regulations and all other applicable laws, and (iv) refund any fees paid to you by a customer and/or end user who purchased Product(s) from you but does not agree to the restrictions and obligations contained in this Agreement and therefore wishes to return the Product(s) as provided for in this Agreement. Notwithstanding anything to the contrary, distributors, resellers and other Brandefense partners (a) are not agents of Brandefense and (b) are not authorized to bind Brandefense in any way. Brandefense’s license, warranty, and support is only available for Software that you have been granted directly by an authorized Brandefense channel partner. Licenses not purchased from an authorized Brandefense channel partner are not eligible, will not be supported, and may be blocked from registration.
6. Disclaimer of Other Warranties and Restrictions
THE PRODUCT AND SOFTWARE ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY OF ANY KIND INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY, IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, OR WARRANTY FOR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. BRANDEFENSE DISCLAIMS LIABILITY REGARDING YOUR WEB BROWSER’S REQUIREMENTS OR ANY THIRD-PARTY DEVICE OR APPLIANCE USED TO OPERATE THE SOFTWARE.
7. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW AND NOTWITHSTANDING ANYTHING TO THE CONTRARY, BRANDEFENSE IS NOT LIABLE UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, INFRINGEMENT OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY LOSS OF USE OF THE PRODUCT OR SERVICE OR ANY DAMAGES OF ANY KIND WHATSOEVER, WHETHER DIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, LOSS OF PROFIT, LOSS OF OPPORTUNITY, LOSS OR DAMAGE RELATED TO USE OF THE PRODUCT OR SERVICE IN CONNECTION WITH HIGH RISK ACTIVITIES, DEINSTALLATION AND INSTALLATION FEES AND COSTS, DAMAGE TO PERSONAL OR REAL PROPERTY, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, COMPUTER SECURITY BREACH, COMPUTER VIRUS INFECTION, LOSS OF INFORMATION OR DATA CONTAINED IN, STORED ON, IN NO EVENT SHALL ANY END-USER REMEDIES UNDER THIS EULA AND ANY SUPPORT AGREEMENT EXCEED THE AMOUNT PAID TO BRANDEFENSE FOR THE SPECIFIC APPLICABLE DEFECTIVE OR NON-CONFORMING PRODUCT AT ISSUE.
8. Limitation of Damages
UNLESS OTHERWISE RESTRICTED BY APPLICABLE LAW OR STATED OTHERWISE BY BRANDEFENSE, BRANDEFENSE IS NOT LIABLE FOR ANY DAMAGES, INCLUDING ANY SPECIAL, INDIRECT OR INCIDENTAL DAMAGES, IN CONNECTION WITH THE USE OF THIS SITE UNDER ANY CIRCUMSTANCES. BRANDEFENSE RECOMMENDS ONLY THE APPLICATIONS FOR THE SOFTWARE SPECIFIED IN COMPANY LITERATURE. THE SOFTWARE IS GUARANTEED ONLY ACCORDING TO THE TERMS AND CONDITIONS OF THE SALE, IF GUARANTEED IN WRITING FORM BY BRANDEFENSE. END-USER SPECIFICALLY ACKNOWLEDGES AND ACCEPTS THAT BRANDEFENSE SHALL NOT BE LIABLE FOR THE MINOR, ANTI-COMPETITIVE, INSULATIVE OR ILLEGAL BEHAVIOUR OF ANY END-USER. IF END-USER IS NOT SATISFIED WITH ANY BRANDEFENSE MATERIAL OR TERMS AND CONDITIONS; THE ONE AND ONLY SOLUTION WILL BE TO STOP USING THE SOFTWARE.
9. Compliance with Laws and FCPA
You are advised that the Software may be subject to the United States Regulations; diversion contrary to United States law and regulation is prohibited. You agree to comply with all applicable international and national laws that apply to the Software as well as end user. You represent and warrant to Brandefense that you and your employees, consultants, agents and representatives will not use the Software and services to engage in, or support in any way, violations or abuses of human rights, including those involving censorship, surveillance, detention, or excessive use of force. You agree you and your employees will be responsible to comply in full with all laws and policies applicable to any and all dealings with Brandefense in general and its distributors, resellers and partners.
End-users must not misuse the Software. If you are a Brandefense contracted and authorized reseller or distributor of Products, you must ensure the end-users refrain from the followings: For example, end-users must not: (a) use Brandefense without, or in violation of, a written license or agreement with Brandefense; (b) copy, modify, host, stream, sublicense, or resell the Software; (c) enable or allow others to use the Software using with their account information; (d) offer, use, or permit the use of the Software in a computer services business, third-party outsourcing service, on a membership or subscription basis, on a service bureau basis, on a time-sharing basis, as a part of a hosted service, or on behalf of any third party; (e) use the Software to construct any kind of database or dataset; (f) access or attempt to access the Software by any means other than the interface we provide or authorize; circumvent any access or use restrictions put into place to prevent certain uses of the Software; (g) engage in behavior that violates anyone’s intellectual property rights. “Intellectual Property Rights” means copyright, moral rights, trademark, trade dress, patent, trade secret, unfair competition, right of privacy, right of publicity, and any other proprietary rights; (h) share any content that is unlawful, harmful, threatening, obscene, violent, abusive, tortious, defamatory, libelous, vulgar, lewd, profane, invasive of another’s privacy, hateful, or otherwise objectionable; (i) share any content that sexualizes minors or that is intended to facilitate inappropriate interactions with minors, other end-users, or the public; (j) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity; (k) attempt to disable, impair, or destroy the Software; (l) upload, transmit, store, or make available any content or code that contains any viruses, malicious code, malware, or any components designed to harm or limit the functionality of the Software; (m) disrupt, interfere with, or inhibit any other user from using the Software; (n) violate any applicable law.
11. U.S. Government End Users
The Software and accompanying documentation are deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to the applicable law. Any use, modification, reproduction, release, performance, display or disclosure of the Software and accompanying documentation by the United States Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement and its successors.
12. Tax Liability
You agree to be responsible for the payment of any taxes that may be imposed at any time on this transaction.
13. General Provisions
Except as specifically stated herein, you agree not to assign this Agreement or transfer any of the rights or obligations under this Agreement without the prior written consent of Brandefense. This Agreement shall be binding upon, and inure to the benefit of, the successors and permitted assigns of the parties. This Agreement and other Brandefense agreements may be amended or supplemented only by a writing that refers explicitly to the agreement signed on behalf of both parties, or, for this Agreement, as otherwise expressly provided in the lead-in above Section 1 above, provided, notwithstanding anything to the contrary and except for this Agreement which may be amended or updated as expressly provided in the lead-in above Section 1 above, for any amendment or other agreement to be binding on Brandefense, such amendment or other agreement must be signed by Brandefense. No waiver will be implied from conduct or failure to enforce rights nor effective unless in a writing signed on behalf of the party against whom the waiver is asserted. If any part of this Agreement is found unenforceable, that part will be enforced to the maximum extent permitted and the remainder shall continue in full force and effect. You acknowledge that you have read this Agreement, understand it, and agree to be bound by its terms and conditions. Notwithstanding anything to the contrary, this EULA constitutes the entire agreement between Brandefense and its end-users and supersedes any and all prior representations or conflicting provisions, such as limitations of liability, warranties, or otherwise in any and all purported end-user agreements, whether entered into now or in the future. In the event of a conflict between this EULA and another agreement, this EULA shall prevail unless the conflicting agreement expressly states that it replaces this EULA, expressly referring to this EULA, and is agreed to in writing by authorized representatives of the parties (which, in the case of Brandefense, is Brandefense’s Authorized Representative).
15. Governing Law
Any disputes arising out of this Agreement or Brandefense’s limited warranty shall be governed by the laws of the state of Delaware, without regard to the conflict of laws principles. In the event of any disputes arising out of this Agreement, the parties submit to the jurisdiction of the federal and state courts located in Delaware, as applicable, and agree that any controversy or claim arising out of or relating to this Agreement shall be determined in the federal and state courts located in Delaware, as applicable.
The End-User hereby accepts and undertakes that it should not use the Software if it does not accept any of these terms stated herein.