BY INSTALLING THIS SOFTWARE YOU AGREE TO ALL OF THE PROVISIONS OF THIS LICENSE. IF YOU ARE NOT WILLING TO BE BOUND BY THIS LICENSE, RETURN ALL COPIES OF THE SOFTWARE TO ISS WITHIN (15) DAYS OF RECEIPT FOR A FULL REFUND OF ANY PAID LICENSE FEE.
1. License. Internet Security Systems, Inc. ("ISS") grants to you as the only end user ("Licensee") upon payment of the applicable fees a nonexclusive and non-transferable license for the accompanying ISS software product in machine readable form and the related documentation ("Software") for the time period specified with the accompanying key file configured by ISS ("Term") and for use only with respect to the specific network configuration that is specified with the accompanying key file configured by ISS. The Software must not be used on networks or devices which have not been specifically licensed by ISS and specified in the key file. Except for backup, do not install the Software on more than one storage device at the same time.
2. Restrictions. The Software is owned by ISS and/or its licensors, is a valuable trade secret of ISS and is protected by United States Copyright Law and International Treaty provisions. You agree not to copy, modify, adapt, translate, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software, except as expressly permitted by the law in effect in the jurisdiction in which you are located. You may not use ISS trademarks. You may not transfer, lease, assign, sublicense, or distribute the Software or make it available for timesharing, service bureau or on-line use. ISS reserves all intellectual property rights in the Software.
3. Support and Maintenance. ISS will provide software maintenance and support services during the term for which you have paid the applicable current support and maintenance fees through telephonic support, preparation and delivery to you of error corrections and updates to the Software (but NOT new releases or products that substantially increase functionality) and documentation as described in our then current Maintenance Services Policy Statement.
4. Limited Warranty. For a period of ninety (90) days after your receipt of the Software or the Term of this Agreement (whichever is less), ISS warrants that the Licensed Software will perform in accordance with material operational specifications described in the documentation supplied and amended by ISS. Provided, however, that this limited warranty shall not apply unless (i) the Software is installed, implemented, and operated in accordance with all written instructions and documentation supplied by ISS on equipment recommended by ISS, (ii) Licensee notifies ISS in writing of any nonconformity within ten (10) days of the appearance thereof, and (iii) Licensee has promptly and properly installed all corrections, new versions and updates made available by ISS to Licensee. This limited warranty shall not apply to nonconformities arising from any of the following: (i) misuse of the Software, (ii) modification of the Software, (iii) failure by Licensee to utilize compatible computer and networking hardware and software, or (iv) interaction with software or firmware not provided. If Licensee timely notifies ISS in writing of any such nonconformity then ISS shall repair or replace the Software as the sole and exclusive remedy of Licensee for such nonconformity. THIS WARRANTY GIVES LICENSEE SPECIFIC LEGAL RIGHTS, AND LICENSEE MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. ISS DOES NOT WARRANTY THAT THE SOFTWARE WILL MEET LICENSEE'S REQUIREMENTS, THAT THE SOFTWARE WILL OPERATE IN THE CONFIGURATION WHICH LICENSEE MAY SELECT FOR USE, THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL SOFTWARE ERRORS WILL BE CORRECTED. THE REMEDIES SET OUT IN THIS SECTION 4 ARE THE SOLE AND EXCLUSIVE REMEDIES FOR BREACH OF THIS LIMITED WARRANTY.
5. Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY PROVIDED ABOVE, ISS HEREBY DISCLAIMS ALL WARRANTIES, BOTH EXPRESS AND IMPLIED, INCLUDING IMPLIED WARRANTIES RESPECTING MERCHANTABILITY, TITLE, INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. SOME STATES DO NOT ALLOW DISCLAIMERS OF IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. LICENSEE EXPRESSLY ACKNOWLEDGES THAT NO REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS LICENSE HAVE BEEN MADE RESPECTING THE GOODS OR SERVICES TO BE PROVIDED
HEREUNDER, AND THAT LICENSEE HAS NOT RELIED ON ANY REPRESENTATION NOT EXPRESSLY SET OUT IN THIS LICENSE.
6. Proprietary Rights. ISS represents and warrants that ISS has the authority to licensee the rights to the Software that are granted herein. ISS shall defend and indemnify Licensee from any award of costs and damages against Licensee for any actions based on infringement of any U.S. copyright, trade secret, or patent known to ISS as a result of the use or distribution of a current, unmodified version of the Software; but only if ISS is promptly notified in writing of any such suit or claim, and only if Licensee permits ISS to defend, compromise, or settle same, and only if Licensee provides all available information and reasonable assistance. The foregoing is the exclusive remedy of Licensee and states the entire liability of ISS with respect to infringement and misappropriation by the Software.
7. Limitation of Liability. Licensee acknowledges that some of the Software is designed to test the security of computer networks and may disclose or create problems in the operation of the systems tested. Licensee accepts the risk of such possibility and hereby waives all rights, remedies, and causes of action against ISS and releases ISS from all liabilities arising therefrom. ISS' ENTIRE LIABILITY FOR MONETARY DAMAGES ARISING OUT OF THIS LICENSE SHALL BE LIMITED TO THE AMOUNT OF THE LICENSE FEES ACTUALLY PAID BY LICENSEE UNDER THIS LICENSE PRORATED OVER A THREE-YEAR TERM FROM THE DATE LICENSEE RECEIVED THE SOFTWARE. IN NO EVENT SHALL ISS BE LIABLE TO LICENSEE UNDER ANY THEORY INCLUDING CONTRACT AND TORT (INCLUDING NEGLIGENCE AND STRICT PRODUCTS LIABILITY) FOR ANY INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES, DAMAGES FOR LOSS OF DATA, LOSS OF USE OR COMPUTER HARDWARE MALFUNCTION, EVEN IF ISS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. No action, regardless of form, arising out of or relating to this License may be brought by either party more than one (1) year after the cause of action has accrued.
8. Termination. Licensee may terminate this License at any time by destroying all copies of the Software and associated documentation. This License will terminate and expire immediately, without prior written notice from ISS, at the end of the Term or earlier if Licensee fails to comply with any provisions of this License. Upon termination or expiration of the Term, you must cease all use of the Software and destroy all copies of the Software and associated documentation.
9. General Provisions. This License will be governed by the substantive laws of the State of Georgia, USA, excluding the application of its conflicts of law rules. This License will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. If any part of this License is found void and unenforceable, it will not affect the validity of the balance of the License, which shall remain valid and enforceable according to its terms. Licensee will not ship, transfer or export the Software into any country or use the Software in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations. This License may only be modified in writing signed by an authorized officer of ISS.
10. U.S. GOVERNMENT RESTRICTED RIGHTS. The Software and documentation are provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraph (c)(1) and(2) of the Commercial Computer Software-Restricted Rights at 48 CFR 52.227-19 of FAR, or Clause 18-52.227-86(d) of NASA Supplement to the FAR, as applicable. Contractor/manufacturer is Internet Security Systems, Inc., 6600 Peachtree-Dunwoody Road NE,
300 Embassy Row, Suite 500, Atlanta, GA. 30328.
11. U.S. Export Controls. Licensee will not ship, transfer or export the Software into any country or use the Software in any manner prohibited by the United States Export Administration Regulations or any other export laws, restrictions or regulations. Licensee understands that the foregoing obligations are U.S. legal requirements and agrees that they shall survive any term or termination of this product.
12. Authority. Because the Software is designed to test the security of computer network systems and may disclose or create problems in the operation of the systems tested, Licensee and the persons signing and/or acting for Licensee represent and warrant that: (a) they are fully authorized by the Licensee and the owners of the computer network for which the Software is licensed to enter into this License Agreement and to obtain and operate the Software in order to test that computer network; and
(b) the Licensee and the owners of that computer network understand and accept
