This WhiteHat Security, Inc. (“WhiteHat”) End User License Agreement (“EULA”) applies to any plugins that you will receive from WhiteHat directly or through its authorized reseller to connect WhiteHat Services to third-party services (“Plugin”). For the purpose of this EULA, “Services” shall mean WhiteHat’s application and API security testing, vulnerability management and benchmarking, and related services (including associated software and access to WhiteHat’s hosted software application). This EULA is solely between WhiteHat and you; the third party to whose services the Plugin may allow connection is not a party to this EULA. Separate license terms apply to your use of such third-party services. If you are accepting this EULA on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Evaluation Terms, and, in such event, “you” and “your” will refer to that company or other legal entity.
YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ, UNDERSTOOD AND AGREED TO THE TERMS AND CONDITIONS OF THIS EULA. IF YOU DO NOT AGREE WITH ALL THE TERMS, CONDITIONS AND LIMITATIONS OF THIS EULA, YOU ARE NOT AUTHORIZED TO RECEIVE THE PLUGIN. WRITTEN APPROVAL IS NOT A PREREQUISITE TO THE VALIDITY OR ENFORCEABILITY OF THIS EULA AND NO SOLICITATION OF ANY SUCH WRITTEN APPROVAL BY OR ON BEHALF OF WHITEHAT SHALL BE CONSTRUED AS AN INFERENCE TO THE CONTRARY. WHITEHAT’S ACCEPTANCE IS EXPRESSLY CONDITIONAL ON YOUR ASSENT TO THIS EULA TO THE EXCLUSION OF ALL OTHER TERMS; IF THESE TERMS ARE CONSIDERED AN OFFER BY WHITEHAT, ACCEPTANCE IS EXPRESSLY LIMITED TO THIS EULA.
- Limited License. Subject to all of the terms and conditions of this EULA, WhiteHat grants to you a non-transferable, non-sublicensable, non-exclusive limited license to use the Plugin: (i) in object code form for your own internal use of the Plugin, (ii) solely in connection with, and during your active subscription to, the Services, and (iii) only in accordance with the technical specification documentation generally made available with the Plugin (“Documentation”).
- Relation to Service Subscription. Although your license hereunder is limited to use in connection with and during your active subscription to the Services, the representations, warranties, and obligations of WhiteHat under the agreements for such subscriptions, and any related agreements, are not applicable to the Plugin or to any aspect of the Services used or accessed by making use of the Plugin, notwithstanding anything to the contrary stated in such subscription agreement, including any requirement that any amendment thereto be effectuated only by certain means that your acceptance of this EULA may be deemed to not constitute.
- Free, Open-Source and Other Third-Party Software. The Plugin includes software modules licensed from third parties including under the terms and conditions of certain free and/or open-source software licenses (“3P Licenses”). To the extent such 3P Licenses expressly supersede the terms of this EULA, the 3P Licenses govern your use of the software modules licensed to WhiteHat under those 3P Licenses.
- Restrictions and Unauthorized Use. You shall not (and shall not authorize any third party to): (a) decompile, disassemble, or otherwise reverse-engineer the Plugin or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Plugin by any means whatsoever; (b) sell, sublicense, rent, loan, lease, distribute, market, or commercialize the Plugin for any purpose, including timesharing or service bureau purposes; (c) remove any product identification, proprietary, copyright or other notices contained in the Plugin; (d) modify or create a derivative work of any part of the Plugin, or incorporate the Plugin into or with other products or software not contemplated by this EULA or the Documentation (e) use the Plugin for any competitive purpose or publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Plugin, or (f) except for back-up purposes, copy or otherwise reproduce the Plugin.
- Ownership. Notwithstanding anything to the contrary contained herein, except for the limited license rights expressly provided herein, WhiteHat and its licensors have and will retain all rights, title and interest (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Plugin and all copies, modifications and derivative works thereof. You acknowledge that you are obtaining only a limited license right to the Plugin and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights are being conveyed to you under this EULA or otherwise.
- Support. Any updates or support services for the Plugin will be provided as a part of the support services procured by you for the Services.
- Confidentiality. You acknowledge that you may obtain information relating to the Plugin or WhiteHat that has not been released to the public, including, but not limited to, code, technology, know-how, ideas, algorithms, testing procedures, structure, interfaces, specifications, documentation, bugs, problem reports, analysis and performance information, and other technical, business, product, and data (“Confidential Information”). You shall not disclose Confidential Information to any third party or use Confidential Information for any purpose other than the use of the Plugin as licensed under this EULA.
- Warranty Disclaimer. EXCEPT FOR ANY EXPRESS LIMITED WARRANTY OFFERED BY WHITEHAT FOR WHICH YOUR REMEDY IS LIMITED TO REPAIR, REPLACEMENT OR REFUND, THE PLUGIN IS PROVIDED “AS IS” AND WHITEHAT MAKES NO WARRANTIES TO ANY PERSON OR ENTITY WITH RESPECT TO THE PLUGIN AND DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
- Limitation of Damages and Remedies. IN NO EVENT SHALL WHITEHAT OR ITS LICENSORS BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH YOUR USE OF THE PLUGIN, THIRD-PARTY USE OF THE PLUGIN ENABLED BY YOU, OR YOUR OR THIRD-PARTY USE OF ANY DATA OR SOFTWARE ENABLED BY YOU VIA THE PLUGIN. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE TOTAL LIABILITY OF WHITEHAT ARISING OUT OF THIS EULA, INCLUDING BUT NOT LIMITED TO DAMAGES OR LIABILITY ARISING OUT OF CONTRACT, TORT, BREACH OF WARRANTY, INFRINGEMENT OR OTHERWISE, SHALL NOT IN ANY EVENT EXCEED THE FEES PAID BY YOU WITH RESPECT TO THE PLUGIN OR ONE HUNDRED DOLLARS (US$100.00), WHICHEVER IS LESS. WHITEHAT SHALL NOT BE LIABLE FOR LOSS, INACCURACY, INCOMPLETENESS, OR RELEASE OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, SYSTEM DOWNTIME, GOODWILL, PROFITS OR OTHER BUSINESS LOSS, REGARDLESS OF LEGAL THEORY, EVEN IF WHITEHAT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PARTIES AGREE THAT THE LIMITATIONS OF THIS SECTION ARE ESSENTIAL AND THAT WHITEHAT WOULD NOT PERMIT YOU TO USE THE PLUGIN ABSENT THE TERMS OF THIS SECTION. THIS SECTION SHALL SURVIVE AND APPLY EVEN IF ANY REMEDY SPECIFIED IN THIS EULA SHALL BE FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
- Export Compliance. You acknowledge that the Plugin may be subject to export restrictions by the United States government and import restrictions by certain foreign governments. You shall not and shall not authorize any third-party to remove or export from the United States or allow the export or re-export of any part of the Plugin or any direct product thereof: (i) into (or to a national or resident of) any embargoed or terrorist-supporting country; (ii) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (iii) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (iv) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. You agree to the foregoing and warrant that you are not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list. The Plugin is further restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology, or for terrorist activity, without the prior permission of the United States government.
- Government End Users. If you are an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Plugin, or any related Documentation, is restricted by a license agreement or by the terms of this EULA in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Plugin was developed fully at private expense. All other use is prohibited.
- Term, Termination and Survival. The term of this EULA and any license granted hereunder will begin on the date you make use of the Plugin and end on the termination of expiration of your subscription to the Services. Upon any termination of this EULA, you must discontinue use of the Plugin. The terms set forth in this section and the sections entitled Restrictions, Ownership, Confidentiality, Warranty Disclaimer, Limitation of Damages and Remedies and Export Compliance shall survive any termination of this EULA.
- Miscellaneous. Neither this EULA nor the licenses granted hereunder are assignable or transferable by Licensee (and any attempt to do so shall be void). WhiteHat may freely assign, delegate, license and/or transfer this EULA, in whole or in part, without consent. This EULA shall be deemed to have been made in, and shall be construed pursuant to the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act. Subject to the foregoing, the provisions hereof are for the benefit of the parties only and not for any other person or entity. Any notice, report, approval, authorization, agreement or consent required or permitted hereunder shall be in writing; notices shall be sent to the address the applicable party has or may provide by written notice or, if there is no such address, the most recent address the party giving notice can locate using reasonable efforts. No failure or delay in exercising any right hereunder will operate as a waiver thereof, nor will any partial exercise of any right or power hereunder preclude further exercise. If any provision shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this EULA shall otherwise remain in full force and effect and enforceable. This is the complete and exclusive statement of the mutual understanding of the parties with respect to the license granted herein and supersedes and cancels all previous written and oral agreements and communications relating to such license and any waivers or amendments shall be effective only if executed in writing by WhiteHat; however, any pre-printed or standard terms of any purchase order, confirmation, or similar form, unless signed by WhiteHat after the effectiveness hereof, shall have no force or effect. The substantially prevailing party in any action to enforce this agreement will be entitled to recover its attorney’s fees and costs in connection with such action.