BANDURA CYBER, INC.
TERMS OF SERVICE AGREEMENT
IMPORTANT: UNLESS OTHERWISE AGREED IN WRITING SIGNED BY BOTH PARTIES, THIS TERMS OF SERVICE AGREEMENT (THE “AGREEMENT”) GOVERNS ALL USE BY YOU AND THE BUSINESS ENTITY THAT YOU REPRESENT (COLLECTIVELY, “CUSTOMER”) OF THE BANDURA SOFTWARE AND THE BANDURA EQUIPMENT (THE “EQUIPMENT”) INCLUDING ALL SOFTWARE EMBEDDED IN THE EQUIPMENT AND ALL SOFTWARE (THE “SOFTWARE” AND TOGETHER WITH THE EQUIPMENT, THE “SOLUTION”) PROVIDED BY BANDURA CYBER, INC. (“BANDURA”) FOR USE IN CONNECTION WITH THE EQUIPMENT.
BANDURA IS WILLING TO PROVIDE THE SOLUTION TO CUSTOMER ONLY UPON THE TERMS CONTAINED IN THIS LICENSE AGREEMENT. BY REQUESTING AN EVALUATION OF THE SOLUTION, ACCEPTING A QUOTE FOR THE SOLUTION, SUBMITTING AN ORDER FOR THE SOLUTION, OR BY USING ANY PART OF THE SOLUTION, CUSTOMER IS BINDING ITSELF TO ALL TERMS OF THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN BANDURA IS UNWILLING TO LICENSE THE SOFTWARE OR PROVIDE THE EQUIPMENT TO IT AND (A) CUSTOMER MAY NOT USE THE SOFTWARE OR THE EQUIPMENT, AND (B) CUSTOMER MAY RETURN THE EQUIPMENT FOR A FULL REFUND. CUSTOMER’S RIGHT TO RETURN AND REFUND EXPIRES 30 DAYS AFTER PURCHASE FROM BANDURA OR AN AUTHORIZED BANDURA RESELLER, AND APPLIES ONLY IF CUSTOMER IS THE ORIGINAL END USER PURCHASER.
The following terms of Agreement govern Customer’s access and use of the Software.
License. Conditioned upon compliance with the terms and conditions of this Agreement, Bandura grants to Customer a nonexclusive and nontransferable license to use the Software and the Documentation for which Customer has paid any and all required license fees, as limited in time or scope by any Solution quotation, evaluation or order documents. “Documentation” means written information contained in user or technical manuals, training materials, and specifications specifically pertaining to the Software and made available by Bandura for use with the Software or the Equipment in any manner (including on CD-ROM, or on-line).
Customer’s license to use the Software shall be limited to, and Customer shall not use the Software except in connection with, the Equipment.
Unless otherwise expressly provided in the Documentation, Customer shall use the Software solely as embedded in the Equipment for Customer’s internal business purposes only.
General Limitations. This is a license, not a transfer of title, to the Software and Documentation. Unless otherwise stated in any other documentation agreed by the parties, title to Equipment shall pass to Customer upon delivery. Bandura retains ownership of all copies of the Software and Documentation. Customer acknowledges that the Software and Documentation contain trade secrets of Bandura, its suppliers or licensors, including but not limited to the specific internal design and structure of individual programs and associated interface information. Accordingly, except as otherwise expressly provided in this Agreement, Customer shall have no right, and Customer specifically agrees not to
- transfer, assign or sublicense its license rights to any other person or entity, or use the Software except in connection with the Equipment, and any attempted transfer, assignment, or sublicense shall be void;
- modify, adapt, alter, or otherwise change the Software or create derivative works based upon the Software, or permit third parties to do the same;
- reverse engineer or decompile, decrypt, disassemble or otherwise reduce the Software to human-readable form, except to the extent otherwise expressly permitted under applicable law notwithstanding this restriction;
- use or permit the Software to be used to perform services for third parties, whether on a service bureau or time sharing basis or otherwise, without the express written authorization of Bandura; or
- disclose, provide, or otherwise make available the Software or trade secrets contained within the Software and/or Documentation in any form to any third party without the prior written consent of Bandura. Customer shall implement reasonable security measures to protect the Software and such trade
Software, Upgrades and Additional Copies. For purposes of this Agreement, “Software” shall include (and the terms and conditions of this Agreement shall apply to) computer programs, including firmware, as provided to Customer by Bandura, or an authorized Bandura reseller, or embedded or installed in the Equipment, and any upgrades, updates, bug fixes or modified versions thereto (collectively, “Upgrades”) or backup copies of the Software licensed or provided to Customer by Bandura or an authorized Bandura reseller.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT: (1) CUSTOMER HAS NO LICENSE OR RIGHT TO USE ANY ADDITIONAL COPIES OR UPGRADES UNLESS CUSTOMER, AT THE TIME OF ACQUIRING SUCH COPY OR UPGRADE, ALREADY HOLDS A VALID LICENSE TO THE ORIGINAL SOFTWARE AND HAS PAID ANY AND ALL APPLICABLE FEE FOR THE UPGRADE OR ADDITIONAL COPIES; (2) USE OF UPGRADES IS LIMITED TO THE EQUIPMENT FOR WHICH CUSTOMER IS THE ORIGINAL END USER PURCHASER OR WHO OTHERWISE HOLDS A VALID LICENSE TO USE THE SOFTWARE WHICH IS BEING UPGRADED; AND (3) THE MAKING AND USE OF ADDITIONAL COPIES IS LIMITED TO NECESSARY BACKUP PURPOSES ONLY.
Proprietary Notices. Customer agrees to maintain and reproduce all copyright and other proprietary notices onallcopies,inanyform,oftheSoftwareinthesameformandmannerthatsuchcopyrightandotherproprietary notices are included on the Software. Except as expressly authorized in this Agreement, Customer shall not make any copies or duplicates of any Software without the prior written permission ofBandura.
Term, Automatic Renewal and Termination. This Agreement and the license granted herein shall remain effective for such period indicated in the quotation or order documents, provided that any fees therefor are paid by Customer. Unless otherwise expressly stated in quotation or order documents, and until terminated in writing by either party no less than 30 days prior to the end of the initial term or the end of any renewal term, the license granted herein shall automatically renew for successive one year periods, and the applicable annual fees therefor shall be due and payable by Customer. Customer’s rights under this Agreement will terminate immediately without notice from Bandura if Customer fails to comply with any provision of this Agreement. Upon termination, Customer shall destroy any and all copies of the Software, Upgrades and Documentation in its possession or control.
All confidentiality and indemnity obligations of Customer, all limitations of liability, all disclaimers and all restrictions of warranty contained in this Agreement shall survive termination of this Agreement.
Export Restrictions. The Equipment, Software and/or Documentation are subject to the export control laws and regulations of the United States, including, but not limited to, the U.S. Export Administration Act of 1979, as amended, and any successor U.S. legislation, and the Export Administration Regulations (“EAR”) administered by the U.S. Bureau of Industry and Security (“BIS”), in particular because the Equipment, Software and/or Documentation incorporate cryptographic functionality. Accordingly, Customer shall not export, reexport, transfer, or otherwise distribute or disseminate the Equipment, Software and/or Documentation without first obtaining any and all necessary licenses or approvals from BIS, including the issuance either to Bandura or Customer of a Commodity Classification and Automated Tracking System (CCATS) determination from BIS in accordance Section 740.17 or Section 742.15 of the EAR, and any other responsible U.S. Government agency. In particular, except as specifically authorized, Customer shall not export, reexport, transfer, or otherwise distribute or disseminate the Product (i) in or to any country then under U.S. embargo, currently Cuba, Iran, Sudan, Syria, and North Korea; (ii) to any entity or individual on the U.S. Treasury Department’s List of Specially Designated Nationals and Blocked Persons, or on the Entity List, Denied Persons List, or Unverified List, each if which is maintained by BIS; or (iii) for any end use prohibited pursuant to Part 744 of the EAR. Furthermore, Customer agrees not to export, reexport, transfer, or otherwise distribute or disseminate the product to any end user in a country other than the countries listed in Supplement No. 3 to Part 740. Customer will defend, indemnify, and hold BANDURA harmless from and against all fines, penalties, liabilities, damages, costs, and expenses incurred by BANDURA as a result of any violation of the U.S. export control laws and regulations.
U.S. Government End User Purchasers. The Software and the Documentation qualify as “commercial items,” as that term is defined at Federal Acquisition Regulation (“FAR”) (48 C.F.R.) 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in FAR 12.212. Consistent with FAR 12.212 and DoD FAR Supp. 227.7202-1 through 227.7202-4, and notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which this Software License Agreement may be incorporated, Customer may provide to Government end user or, if this Agreement is direct, Government end user will acquire, the Software and Documentation with only those rights set forth in this Software License Agreement. Use of either the Software or Documentation or both constitutes agreement by the Government that the Software and Documentation are “commercial computer software” and “commercial computer software documentation,” and constitutes acceptance of the rights and restrictions herein.
Warranty, Disclaimer and Limitation of Liabilities
BANDURA WARRANTS, DURING THE TERM OF ANY LICENSE OR SUBSCRIPTION FOR THE SOLUTION IN EFFECT PURSUANT TO THIS AGREEMENT, THAT THE SOFTWARE WILL OPERATE IN ACCORDANCE WITH THE DOCUMENTATION IN ALL MATERIAL RESPECTS. BANDURA’S SOLE OBLIGATION AND CUSTOMER’S SOLE REMEDY FOR ANY BREACH OF THE FOREGOING WARRANTY SHALL BE TO REPAIR THE SOFTWARE OR OTHERWISE MODIFY THE SOLUTION SO THAT THE SOFTWARE OPERATES IN ACCORDANCE WITH THE FOREGOING WARRANTY.
Bandura Cyber warrants that for a period of twelve (12) months from shipment (the “Hardware Warranty Period”) the unmodified hardware portions will, under normal use, be free of substantial defects in materials and workmanship provided, however, that this warranty does not cover any Hardware component failures caused by: (i) accident; unusual physical, electrical or electromagnetic stress; neglect; misuse; fluctuations in electrical power beyond the applicable specifications; failure of air conditioning or humidity control; or (ii) installation, alteration or repair of the products by anyone other than Bandura Cyber or other persons expressly authorized by Bandura Cyber.
BANDURA SPECIFICALLY DISCLAIMS AND DOES NOT AGREE TO ANY IMPLIED WARRANTY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTIBILITY, ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR OR ANY IMPLIED WARRANTY THAT THE HARDWARE OR SOFTWARE WILL NOT INFRINGE ANY PATENT, TRADEMARK, COPYRIGHT OR OTHER INTELLECTUAL PROPERTY RIGHTS.
EXCEPT FOR ANY REMEDY SET FORTH IN THIS LIMITED WARRANTY, IN NO EVENT WILL BANDURA OR ITS SUPPLIERS BE LIABLE TO YOU FOR ANY LOSS, DAMAGES, CLAIMS OR COSTS WHATSOEVER INCLUDING ANY CONSEQUENTIAL, INDIRECT OR INCIDENTAL DAMAGES, ANY LOST PROFITS OR LOST SAVINGS, ANY DAMAGES RESULTING FROM BUSINESS INTERRUPTION, PERSONAL INJURY OR FAILURE TO MEET ANY DUTY OF CARE, OR CLAIMS BY A THIRD PARTY, EVEN IF A BANDURA REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS. REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT WILL BANDURA OR ITS SUPPLIERS BE LIABLE FOR ANY LOST REVENUE, LOST PROFIT, OR LOST OR DAMAGED DATA, BUSINESS INTERRUPTION, LOSS OF CAPITAL, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY OR WHETHER ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE OR OTHERWISE AND EVEN IF BANDURA OR ITS SUPPLIERS OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT SHALL BANDURA’S OR ITS SUPPLIERS’ OR LICENSORS’ LIABILITY TO CUSTOMER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY, OR OTHERWISE, EXCEED THE PRICE PAID BY CUSTOMER DURING THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO LIABILITY.
THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
Customer agrees that the limitations of liability and disclaimers set forth herein will apply regardless of whether Customer has accepted the Equipment, the Software or any other product or service delivered by Bandura. Customer acknowledges and agrees that Bandura has set its prices and entered into this Agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the parties.
Miscellaneous. The Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virgina, without reference to or application of choice of law rules or principles.
If any portion hereof is found to be void or unenforceable, the remaining provisions of the Agreement shall remain in full force and effect.
Except as expressly provided herein, this Agreement constitutes the entire agreement between the parties with respect to the license of the Software and the Documentation and supersedes any conflicting or additional terms contained in any purchase order or elsewhere, all of which terms are excluded.
Any controversy or claim arising under or related to this Agreement shall be settled by arbitration in the Commonwealth of Virginia, United States of America in accordance with the arbitration rules of the American Arbitration Association before a single arbitrator and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Bandura and Customer shall each select an arbitrator, and those two selected arbitrators will select the single arbitrator to hear the controversy or claim.