MSP END USER LICENSE AGREEMENT
FIREMON, LLC (HEREINAFTER “FIREMON) PROVIDES THE LICENSE TO YOU (“END USER”) TO PERMIT YOUR LIMITED USE OF FIREMON SOFTWARE BEING PROVIDED VIA YOUR MANAGED SERVICES PROVIDER “MSP” SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS MSP END USER LICENSE AGREEMENT (THE “AGREEMENT”) AND ON THE CONDITION THAT END USER ACCEPTS AND COMPLIES WITH THEM. IF YOU LACK AUTHORITY OR DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, FIREMON WILL NOT AND DOES NOT CONSENT TO THE USE OF THE SOFTWARE BY MSP FOR THE BENEFIT OF END USER.
1. GRANT OF RIGHTS. Subject to the terms and conditions of this Agreement, FireMon hereby grants End User a limited, non-exclusive and non-transferable right and license to and use the Software as provided by MSP for the applicable License Term.
1.1 Limitations. The Software furnished under this Agreement is licensed, not sold, to MSP with the right to provide managed services to End User in accordance with this Agreement. End User shall (and shall ensure any user of the Software shall): (i) not make any unauthorized modifications to or copies of the Software; (ii) not violate any quantity or type restrictions on the licenses as set forth in the applicable Purchase Order; (iii) refrain from taking any steps, including, without limitation, copying, decompiling, reverse engineering, reverse assembly or reverse compilation, to derive or to seek to derive a source code equivalent of the Software provided in object code format; (iv) not remove or obscure, all proprietary notices, if any, on all permitted copies of the Software; (v) not redistribute, rent, lease, license, sublicense, assign, lend, or otherwise transfer the Software or End User’s rights under this Agreement to any party; and ; (vi) not use the Software in a managed services or outsourced environment to support third parties regardless of who owns the network and /or security devices (e.g. firewalls, routers, load balancers, security management devices; and/or (vii) protect the contents of the Software as Confidential Information of FireMon and prevent any unauthorized disclosure or use.
1.2 Revocability. In the event End User materially breaches the terms of this Agreement, in addition to exercising any other available legal remedy available to FireMon, FireMon may, wihtout liability or penalty, terminate any and all rights granted to MSP to provide managed services to End USer utilizing the Software.
2. SERVICES. FireMon will not provide services directly to End Users. End Users may not contact FireMon for services or assistance. All requests should be directed to MSP.
3. OWNERSHIP. Except for the rights expressly granted hereunder to End User, FireMon retains all right, title and interest in and to all Intellectual Property Rights in the (i) Software as well as any modifications, upgrades, updates, or enhancements made thereto whether permitted or not under this Agreement (ii) any materials, information or work product arising out of or in connection with the Services. Any rights not expressly granted to End User by this Agreement are hereby expressly reserved by FireMon. End User further agrees that the licensing of the Software does not constitute a royalty for any tax purposes.
4. WARRANTIES; DISCLAIMER.
4.1 FireMon hereby warrants and represents that FireMon owns or otherwise has the right to license the Software.
4.2 THE FOREGOING WARRANTIES ARE LIMITED WARRANTIES AND ARE THE ONLY WARRANTIES MADE BY FIREMON. WITH THE EXCEPTION OF THE FOREGOING WARRANTIES, THE SOFTWARE IS PROVIDED “AS IS.” FIREMON EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, QUIET ENJOYMENT, AND WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. FIREMON DOES NOT WARRANT AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS THAT THE SOFTWARE OR SERVICES WILL MEET END USER’S REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE AND/OR ITS USE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS IN THE SOFTWARE OR SERVICES, IF ANY, WILL BE CORRECTED.
5. LIMITATION OF LIABILITY.
5.1 IN NO EVENT SHALL FIREMON HAVE ANY LIABILITY TO END USER FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND OR NATURE WHATSOEVER, (INCLUDING BUT NOT LIMITED TO THOSE ARISING FROM LOST REVENUE, LOST PROFITS, BUSINESS INTERUPTION AND/OR DATA LOSS) WHETHER ARISING UNDER CONTRACT, WARRANTY, OR TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR ANY OTHER THEORY OF LIABILITY, EVEN IF THE POSSIBILITY OF DAMAGES WAS DISCLOSED TO FIREMON OR COULD HAVE BEEN REASONABLY FORESEEN BY FIREMON
5.2 END USER HEREBY AGREES THAT IT WILL NOT FILE ANY CLAIMS OR ASSERT ANY CAUSE OF ACTION DIRECT AGAINST FIREMON ARISING OUT OF, RELATING TO OR RESULRING FROM THIS AGREEMENT (“CLAIMS”). ANY AND CLAIMS WILL BE RESOLVED BY AND BETWEEN MSP AND END USER.
6. TERMINATION.
6.1 FireMon may terminate this Agreement for a material breach by End User of its obligations under this agreement if such breach is not cured within thirty (30) days of receiving written notice to MSP.
6.2 Survival. The provisions of Sections 1.1, 3-6, 8-12, and 16 shall survive the termination or expiration of this Agreement and shall remain in full force and effect.
7. EXPORT CONTROL. End User agrees that the Software will not be shipped, transferred, or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations, including without limitation the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List (collectively the “Export Laws”). In addition, End User represents and warrants that End User is not a citizen, or otherwise located within an embargoed nation (including without limitation Iran, Syria, Sudan, Cuba, and North Korea) and that End User is not otherwise prohibited under the Export Laws from receiving the Software. All rights to Use the Software are granted on condition that such rights are forfeited if End User fails to comply with the terms of this agreement.
8. PROPRIETARY NOTICES. No right is granted herein to use any identifying mark (such as, but not limited to, trade names, trademarks, trade devices, service marks or symbols, and abbreviations, contractions or simulations thereof) owned by, or used to identify any product or service of FireMon. End User agrees not to use FireMon’s name or refer to FireMon directly or indirectly in any way whatsoever without the written approval of FireMon.
9. CONFIDENTIALITY. The Software is confidential to FireMon. End User shall not (i) disclose FireMon confidential information, in whole or in part (including methods or concepts utilized therein), except to End User’s employees to whom such disclosure is necessary for purposes of this Agreement (ii) use FireMon confidential information except as expressly authorized by this Agreement. End User shall notify each employee to whom any such disclosure is made that such disclosure is made in confidence and shall be kept in confidence by such employee. If FireMon confidential information subject to this Agreement at any time becomes available without restriction to the general public by acts not attributable to End User or End User’s employees, End User’s obligations under this Section 9 shall not apply to such portion of information after such time. End User acknowledge that disclosure of information in violation of this Section 9 will cause irreparable harm to FireMon and that in such case FireMon shall have the right to injunctive or other preliminary relief without necessity of posting any bond. All obligations of End User under this Agreement which relate to confidentiality or which limit use of the Software shall survive and continue after any termination of this Agreement.
10. GOVERNING LAW; VENUE. This Agreement shall be deemed executed in, and shall be governed by and construed in accordance with, the laws of the State of Kansas, United States of America, excluding its conflict of law provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods. The sole and exclusive venue and jurisdiction for any and all claims or disputes arising under this Agreement or in connection with the Software shall be in Johnson County, Kansas. End User hereby irrevocably submits and consents to personal jurisdiction in the foregoing location.
11. MISCELLANEOUS.
11.1 This Agreement (including any documents expressly referenced herein, the terms of which are hereby incorporated by reference) sets forth the entire agreement and understanding between the parties pertaining to the subject matter hereof.11.2 If any provision of this Agreement is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable. In the event such provision cannot be reformed to make it enforceable, the remaining terms and provisions of this Agreement shall remain in full force and effect, and such unenforceable provision shall be deemed not to be part of this Agreement.
11.3 FireMon may assign this Agreement in connection with the sale, merger or disposition of its assets and/or business operations.
11.4 Except as specifically provided in a written waiver signed by a duly authorized representative of the party seeking enforcement, the failure to enforce or the waiver of any term of this Agreement shall not constitute the waiver of such term at any time or in any circumstances and shall not give rise to any restriction on or condition to the prompt, full and strict enforcement of the terms of this Agreement.
11.5 FireMon will not be liable to End User for failure to fulfill obligations hereunder if such failure is due to causes beyond its control, including, without limitation, acts of God, earthquake, fire, flood, embargo, catastrophe, sabotage, utility or transmission failures, governmental prohibitions or regulations, national emergencies, insurrections, riots or wars, or viruses which did not result from the acts or omissions of FireMon, its employees or agents, strikes, work stoppages or other labor difficulties.
12. NOTICES. All notices required or permitted to be given pursuant to this Agreement shall be given in writing, effective upon receipt and delivered personally, by electronic mail, by overnight courier, or by registered or certified United States mail, postage prepaid, addressed as follows:
To FireMon, LLC
8400 W 110th Street, Suite 500
Overland Park KS 66210
Email: [email protected]
To End User: At address provided on Purchase Order
13. DEFINITIONS.
13.1 “Software” means the FireMon proprietary software and documentation furnished to MSP to provide managed services to End User.
13.2 “Purchase Order” means the valid purchase order, sales order, statement of work, invoice, or other ordering document or process accepted between MSP and End user for the applicable Software and/or Services.
13.3 “License Term” means the duration for which the MSP, subject to compliance with terms of this Agreement may use the Software for the benefit of End User.
13.4 “Intellectual Property Rights” includes, without limitation, all intangible legal rights or interests evidenced by or embodied in: (i) any idea, design, concept, technique, invention, discovery or improvement, regardless of patentability, but including patents, patent applications, trade secrets, and know-how; (ii) any work of authorship, regardless of copyrightability, but including copyrights and any moral rights recognized by law; (iii) any trademark, trade name or service mark; and (iv) any other intellectual property, proprietary or similar rights, including all goodwill pertaining thereto and in each case, on a worldwide basis
