Effective date: 5 March 2021
This End-User License Agreement (“EULA”) is a legal agreement between you (either as an individual or as a legal entity) and Puma Security, LLC (“Licensor”) for the Licensor’s Puma Scan Professional Edition software that accompanies this EULA, which may also include associated media, printed materials, and “online” or electronic documentation (collectively the “Software”). “Software” shall also include all related documentation, and updates and upgrades that replace or supplement the Software and are not distributed with a separate license.
BY CLICKING THE INSTALL OR ACCEPT BUTTON BELOW, OR BY DOWNLOADING, INSTALLING OR OTHERWISE USING THE SOFTWARE YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS EULA, THEN DO NOT CLICK THE INSTALL BUTTON, ACCEPT BUTTON, INSTALL, DOWNLOAD, OR USE THE SOFTWARE. IF YOU CLICK THE ACCEPT BUTTON OR INSTALL, DOWNLOAD OR USE THE SOFTWARE, THE TERMS AND CONDITIONS OF THIS EULA ARE FULLY ACCEPTED BY YOU. If you agree to these terms on behalf of an organization, you hereby represent to Licensor that you are authorized to accept these terms on its behalf.
IF YOU DO NOT ACCEPT THE TERMS OF THIS EULA, CLICK THE “DECLINE” OR “CANCEL” BUTTON AND DO NOT INSTALL, DOWNLOAD OR USE THE SOFTWARE.
GRANT OF LICENSE AND FEES. Licensor grants you the following rights provided that you comply with all terms and conditions of this EULA:
(a) Grant. During the Term, as defined herein, Licensor hereby grants you a non-exclusive, non-transferable license, without rights to sublicense, to use the object code of the Software solely for your internal business purposes, provided such purpose is in accordance with the permitted uses of the Software as set forth in this EULA and the purpose for which the Software was designed as set forth in the applicable documentation for the Software, and to the extent permitted by your payment of applicable license fees. You may use the documentation accompanying the Software in connection with permitted uses of the Software.
(b) Installation and Use. If you have purchased the End User Edition of the Software (the “Desktop Software”), then you may install, use, access, display and run one copy of the Software on up to three (3) computers, such as a workstation, terminal or other device (“Workstation Computer”). Each Workstation Computer must be owned by you, a single named user associated with a single person. If you have purchased the Server Edition based version of the Software (the “Server Software”), then you may install and run one copy of the Server Software on a single build server or servers as indicated on the website to access, display, or use the Server Software. If you have purchased the Azure DevOps Standard Edition based version of the Software (the “Azure DevOps Standard”), then you may install and run the Software in up to twenty (20) Azure DevOps Build Pipelines. If you have purchased the Azure DevOps Unlimited Edition based version of the Software (the “Azure DevOps Unlimited”), then you may install and run the Software in an unlimited number of Azure DevOps Build Pipelines within a single Azure DevOps Organization.
(c) Copies. You may download the number of copies allowed by the Software’s digital rights management from an authorized source. However, you may use only one copy of the Software on up to three (3) Workstation Computers (with respect to the Desktop Software), one (1) server (with respect to the Server Software), twenty (20) build pipelines (with respect to the Azure DevOps Standard Software) or unlimited build pipelines in a single Azure DevOps organization (with respect to the Azure DevOps Unlimited Software) at any given time. You may not make a copy of the Desktop Software available on a network where it could be used by multiple users at the same time. You may not make the Software available over a network where it could be downloaded by multiple users. You may make a single copy of the Software for back-up purposes, provided such copy is not installed or used on any computer. At the time of registration of the Software, you may only register and put in use the most current version of the Software.
(d) Fees. You will pay the license fees set forth on the Licensor’s website (“Software Fees”) in accordance with these terms. All Software Fees are non-refundable, save for refunds due under clause 15.3, or refunds that may be due as a result of Licensor’s material breach, willful abandonment, or willful default of the term set forth herein. If this EULA is terminated as a result of Licensor’s material breach, willful abandonment, or willful default, Licensor shall refund the pro rata portion of any fee that may have been paid by you applicable to that portion of the Term falling beyond the effective date of termination. Licensor reserves the right to change the Software Fees for any Renewal Term, as defined below, provided that Licensor shall provide you with notice of any such change at least sixty (60) days prior to the commencement of the applicable Renewal Term. Unless otherwise agreed to by the parties, you will pay the Software Fees in accordance with your selection at the time you purchase the Software from the Licensor website. If you choose to pay the Software Fees by credit or debit card, you will provide Licensor with accurate and complete billing information including, legal name, address, telephone number, and credit card or debit card billing information. If such information is false or fraudulent, Licensor reserves the right to terminate your use of the Software in addition to seeking any other legal remedies. Licensor is not responsible for any charges or expenses resulting from charges billed by Licensor. Each charge will be considered valid unless disputed by you in writing thirty (30) days after the billing date. No adjustments will be made for disputed charges made more than thirty (30) days after the billing date. If you choose to pay the Software Fees through an invoice, all Software Fees will be due within thirty (30) days of the invoice date.
(e) Taxes. Software Fees exclude, and you will make all payments of the Software Fees to Licensor free and clear of, all applicable sales, use, and other taxes and all applicable export and import fees, customs duties and similar charges. Licensee will be responsible for, and will indemnify and hold harmless Licensor from, payment of all such taxes (other than taxes based on Licensor’s net income), fees, duties, and charges, and any related penalties and interest, arising from the payment of the Fees or the delivery or license of the Software to Licensee.
TRIAL LICENSES.
(a) General. If available, the Software may be activated with no-cost evaluation Software License Key(s).
(b) Evaluation License. If you activate the Software with an evaluation Software License Key (“Evaluation Product”) you may use the Evaluation Product for thirty (30) days (or such other period as agreed in writing by Licensor) (the “Trial Period”) only to evaluate the suitability of the Evaluation Product for licensing on a for-fee basis.
(c) Trial Periods. If the Software was provided to you at no charge on a trial or evaluation basis, then the Software may be used only for the Trial Period, unless you purchase a further license to the Software at the end of the Trial Period.
(d) No Support. Licensor has no duty to provide support to you during your use of the Evaluation Product.
RESERVATION OF RIGHTS AND OWNERSHIP. The Software is licensed, and not sold, to you for use only under the terms of this EULA. The Software is protected by copyright and other intellectual property laws and treaties. Licensor or its suppliers own the title, copyright, and other intellectual property rights in the Software. Except as expressly licensed to you herein, Licensor and its suppliers reserve all right, title and interest in the Software and all associated copyrights, trademarks, and other intellectual property rights therein. The EULA is limited to the intellectual property rights of Licensor and its suppliers in the Software and does not include any rights to other intellectual property.
LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION, AND DISASSEMBLY. You may not reverse engineer, decompile, or disassemble the Software by any means whatsoever, or alter, modify, enhance, or create a derivative work of the Software. You may not remove, alter, or obscure any product identification, copyright, or other intellectual property notices in the software.
NO RENTAL/COMMERCIAL HOSTING. You may not rent, lease, lend or provide hosting services with the Software for third parties. You may not use the Software to provide commercial services to third-parties.
CONSENT TO USE OF DATA. You agree that Licensor and its affiliates may collect and use Technical Information gathered as part of the product support services provided to you, if any, related to the Software. Technical Information is information about your operating environment, user/product interactions, and sessions. This includes information such as your systems architecture, OS and product versions, page loads and views, errors, and number of active and licensed users. Licensor may use this information to improve its products or to provide customized services or technologies to you and will not disclose this information in a form that personally identifies you. Licensor and its affiliates also collect License Usage Data. License Usage Data is information that allows Licensor to identify your account entitlements, such as license consumption, capacity, or type in Licensor’s systems through an assigned license ID. Licensor uses this information to validate accounts and automate license verification. You agree that Licensor may use these measures and you agree to follow any applicable requirements. Licensor may provide you with the ability to opt-in to additional services provided by third party vendors. By opting into these services, you agree that Licensor may provide your Technical Information and other data to such third party vendors as necessary for providing the services to you. Any and all further information regarding your data and its processing shall apply from the Puma Security Privacy Policy available on Licensor’s website [https://pumasecurity.io/privacy/]. By accepting this EULA, you agree and provide consent to accept such Puma Security Privacy Policy. Third party vendors may also have their own privacy policies, copies of which are available at [https://pumasecurity.io/privacy/#third-party-integrations]. By opting into the additional services, you agree and provide consent to such third party privacy policies.
TRANSFER. During active support periods, you may move the Software to a different Workstation Computer; such transfer may require you to contact Licensor to effectuate such transfer. After the transfer, you must completely remove the Software from the former Workstation Computer. NOTWITHSTANDING THE FOREGOING, YOU MAY NOT TRANSFER EVALUATION PRODUCTS OR PRE-RELEASE COPIES OF THE SOFTWARE. YOU MAY NOT SUBLICENSE, RENT OR LEASE YOUR RIGHTS IN THE SOFTWARE OR AUTHORIZE ANY PORTION OF THE SOFTWARE TO BE COPIED EXCEPT AS MAY BE EXPRESSLY PERMITTED IN THIS EULA.
TERM AND TERMINATION. This EULA is effective for one (1) year following your acceptance of this EULA (the “Initial Term”). Thereafter, this EULA will automatically renew for additional one (1) year periods (each a “Renewal Term”) unless a party provides at least thirty (30) days’ notice of its intent to not renew. The Initial Term and each Renewal Term are referred to collectively as the “Term”. Your rights under this EULA will terminate immediately and automatically if you fail to comply with any of the terms and conditions of this EULA.
You may terminate this EULA by written notice in the event of a material breach of this EULA by Licensor that is not cured within fifteen (15) days of receipt of the notice. In the event that Licensor undergoes a Change of Control, you may thereafter terminate this EULA immediately upon written notice to Licensor. Change of Control means a sale of fifty (50) percent or more of Licensor’s shares, a sale of substantially all the assets of Licensor, or a change in the majority of the board members/directors of Licensor.
Promptly upon termination, you must cease all use of the Software, destroy all copies of the Software in your possession or control, and, upon request of Licensor, certify such destruction. Licensor’s termination of this EULA will not limit any of Licensor’s other rights or remedies at law or in equity. Each party agrees that all Confidential Information of the other party, including any copies thereof, shall be returned to the disclosing party upon request or destroyed within ten (10) business days of the termination of this EULA, and, upon request of the other party, certify such destruction.
ADDITIONAL SOFTWARE/SERVICES. This EULA applies to updates, supplements, add-on components, or Internet-based services components, of the Software that Licensor may provide to you or make available to you after the date you obtain your initial copy of the Software, unless we provide other terms along with the update, supplement, add-on component, or Internet-based services component. Licensor reserves the right to discontinue any Internet-based services provided to you or made available to you through the use of the Software.
ACKNOWLEDGEMENT OF THIRD-PARTY PRODUCTS. You hereby acknowledge that the Software might contain Third Party Products that require additional notices or are subject to additional terms and conditions. “Third Party Product” means application software products provided by third party vendors, including operating system and application software with which the Software interfaces and which provides certain functionality essential to the operation of the Software.
10.1 Third Party Product Terms. If Licensor does include Third Party Product(s) in the Software:
(a) Licensor shall post any additional notices and terms and conditions on Licensor’s website at [https://pumasecurity.io/privacy/#third-party-integrations],
(b) those terms and conditions are hereby incorporated into this EULA; and
(c) even if such Third Party Products are governed by other agreements, the disclaimer (Section 14), limitation of liability and remedies (Section 17), and exclusions of damages (Section 16) below also apply to the extent allowed by applicable law.
10.2 Conflicting Terms. If there are any conflicts between this EULA and the additional terms or conditions governing Third Party Products, those additional terms and conditions will control in connection with the Third Party Products.
BUG FIXES. Licensor may, at its own discretion, from time to time provide fixes to know bugs and other issues with the Software (each an “Update”). You retain the sole responsibility for downloading and installing any such Update and you further acknowledge that Licensor has no obligation to provide any such Update.
SUPPORT AND SUBSCRIPTION SERVICES NOT INCLUDED. Licensor will not provide any support services under this EULA unless you have separately purchased support services as described on the Licensor website. Specific terms and conditions for any such separately purchased support can be found on the Licensor website. This EULA does not give you any rights to any customization or upgrades to the Software or to any extensions or enhancements to the Software developed by Licensor at any time in the future. Any supplemental software code or related materials that Licensor provides to you as part of any support services are to be considered part of the Software and are subject to the terms and conditions of this EULA.
EXPORT RESTRICTIONS. You acknowledge that the Software is subject to U.S. export jurisdiction. You agree to comply with all applicable international and national laws that apply to the Software, including the U.S. Export Administration Regulations, as well as end-user, end-use, and destination restrictions issued by U.S. and other governments. The Export Control Classification Number (ECCN) for the software is EAR99.
DISCLAIMER OF WARRANTIES. THE SOFTWARE IS PROVIDED TO YOU “AS IS” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE INCLUDING ANY WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. LICENSOR BEARS NO LIABILITY FOR ANY DAMAGES RESULTING FROM USE (OR ATTEMPTED USE) OF THE SOFTWARE THROUGH AND AFTER THE TERM, YOU ACKNOWLEDGES THAT YOU HAVE NOT RELIED ON ANY WARRANTIES OTHER AND THAT LICENSOR DOES NOT WARRANT THAT THE USE OR OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.
INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.
15.1 Indemnification Against Liability for Infringement. Licensor shall indemnify you against all liabilities, claims and legal costs (including reasonable attorney fees) paid to or for the benefit of a third party arising from any third party claim or suit alleging that the Software infringes: (i) any copyright; (ii) the trade secret or trademark rights of any third party; or (iii) any U.S. patent existing on the date the Software in question is delivered to you. You shall promptly notify Licensor in writing of any such third party claim. No failure to so notify Licensor shall relieve Licensor of its obligations under this Agreement except to the extent that Licensor can demonstrate damages attributable to such failure. Licensor shall be entitled to have sole control over the defense and settlement of such claim; provided that (i) you shall be entitled to participate in the defense of such claim and to employ counsel at your own expense to assist in the handling of such claim, and (ii) Licensor shall obtain the prior written approval from you before entering into any settlement of such claim or ceasing to defend against such claim if such settlement or cessation would cause injunctive or other equitable relief to be imposed against you.
15.2 Limitations on Indemnification. Licensor shall have no liability for, and shall not indemnify you against, any infringement claim resulting from: (i) modification of any Software; (ii) combination of any Software with hardware, software or other intellectual property provided by anyone other than Licensor; (iii) use of a superseded or altered release of some or all of the Software or any modification thereof furnished under this EULA including, but not limited to, your failure to use corrections, fixes, or enhancements made available by Licensor; or (iv) use of any Software in any manner not expressly contemplated hereunder.
15.3 Repair or Replacement of Infringing Software. In the event of a third-party infringement claim, Licensor shall, at its sole election and expense: (i) procure for you the right to continue to use the Software pursuant to this EULA; (ii) replace or modify the Software to make it non-infringing while still complying with the terms of this EULA; or (iii) if none of the above options is reasonably available, terminate this Agreement and refund the Software Fees paid for infringing Software applicable to that portion of the Term falling beyond the effective date of termination.
15.4 Applicability to Third Party Products. LICENSOR MAKES NO REPRESENTATIONS OR WARRANTIES AND PROVIDES NO INDEMNIFICATION OR REPLACEMENT COVENANTS OF ANY KIND WITH RESPECT TO THIRD PARTY PRODUCTS. Licensor’s sole responsibility as to Third Party Products is to pass through any intellectual property warranties, indemnification and replacement provisions that Licensor receives from the vendors or suppliers of such Third Party Products and which Licensor is allowed to pass on.
15.5 EXCEPT AS OTHERWISE PROVIDED HEREIN, SECTIONS 15.1 THROUGH 15.4 STATE LICENSOR’S AND ITS THIRD PARTY SUPPLIERS’ ENTIRE LIABILITY AND CLIENT’S EXCLUSIVE REMEDY FOR CLAIMS OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL LICENSOR OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATION, SOFTWARE, AND RELATED CONTENT THROUGH THE SOFTWARE OR OTHERWISE ARISING OUT OF THE USE OF THE SOFTWARE, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS EULA, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF LICENSOR OR ANY SUPPLIER, AND EVEN IF LICENSOR OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
LIMITATION OF LIABILITY AND REMEDIES. Notwithstanding any damages that you might incur for any reason whatsoever (including, without limitation, all damages referenced herein and all direct or general damages in contract or anything else), the entire liability of Licensor and any of its suppliers under any provision of this EULA and your exclusive remedy hereunder (except for any remedy of repair or replacement elected by Licensor) shall be limited to actual, direct damages up to the amount actually paid by you for the Software. The foregoing limitations, exclusions and disclaimers (including Sections 14, 15, 16, and 17) shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
U.S. GOVERNMENT LICENSE RIGHTS. All Software provided to the U.S. Government is provided with the commercial license rights and restrictions described elsewhere herein. All Software provided to the U.S. Government is provided with “Restricted Rights” as provided for in FAR, 48 CFR 52.227 -14 (JUNE 1987) or DFAR, 48 CFR 252.227-7013 (OCT 1988), as applicable.
APPLICABLE LAW. This EULA will be governed by the laws of the State of Iowa, of the United States of America, without regard to its choice of law principles, as applied to agreements entered into and to be performed entirely in the State of Iowa between Iowa residents. Unless expressly waived by Licensor in writing for the particular instance or contrary to local law, the sole and exclusive jurisdiction and venue for actions related to the subject matter hereof shall be the Iowa state and federal courts having within their jurisdiction in Polk County. Both parties consent to the jurisdiction of such courts and agree that process may be served in the manner provided herein for giving of notices or otherwise as allowed by Iowa or federal law. The parties agree that the UN Convention on Contracts for the International Sale of Goods shall not apply to this EULA nor to any dispute or transaction arising out of this EULA.
ENTIRE AGREEMENT; SEVERABILITY. This Agreement sets forth Licensor’s entire liability and your exclusive remedy with respect to the Software and supersedes the terms of any purchase orders and any other communications or advertising with respect to the Software. You acknowledge that this Agreement is a complete statement of the agreement between you and Licensor with respect to the Software, and that there are no other prior or contemporaneous understandings, promises, representations, or descriptions with respect to the Software. No amendment to or modification of this EULA will be binding unless made in writing and signed by Licensor. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of any other right hereunder. If any provision of this EULA is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect the invalid, unenforceable or illegal provision shall be amended to achieve as closely as possible the effect of the original term.
INJUNCTIVE RELIEF. You agree that a breach of this EULA adversely affecting Licensor’s proprietary rights in the Software may cause irreparable injury to Licensor for which monetary damages would not be an adequate remedy and Licensor shall be entitled to seek equitable relief in addition to any remedies it may have hereunder or at law.
CONFIDENTIAL INFORMATION. You acknowledge and agree that the Software and all information emanating from the Software and Licensor’s business in any form are valuable trade secrets of Licensor and “Confidential Information.” You agree that you will not, during or after the term of this Agreement, permit the duplication, use, or disclosure of any such Confidential Information to any person (other than your employees, agents or representatives), unless such duplication, use or disclosure is specifically authorized by Licensor in writing prior to any disclosure.
You shall use reasonable diligence, and in no event less than that degree of care that you use in respect to your own confidential information of like nature, to prevent the unauthorized disclosure or reproduction of the Confidential Information. Without limiting the generality of the foregoing, to the extent that this Agreement permits the copying of Confidential Information, all such copies shall bear the same confidentiality notices, legends, and intellectual property rights designations that appear in the original versions and party shall keep detailed records of the location of all Confidential Information.
SURVIVAL. The provisions of this Section 23 and Sections 3, 4, 6, 8, 9, 10, 13, 14, 16, 17, 19, 20, 21 and 22 shall survive termination or expiration of this Agreement for any reason.
