Last Updated: October 2023
THESE END USER LICENSE TERMS AND CONDITIONS (the “Agreement“) CONSTITUTE A BINDING AGREEMENT BETWEEN THE PENTERA ENTITY (“Company“) AND THE END USER CUSTOMER ENTITY (“User“), EACH AS SPECIFIED IN THE ORDER FORM TO WHICH THIS AGREEMENT RELATES, WHICH ORDER FORM, ONCE ACCEPTED BY COMPANY, IS HEREBY INCORPORATED INTO, AND MADE A PART OF, THIS AGREEMENT BY REFERENCE. Company and User may be collectively referred to herein as the “Parties“, and each individually as a “Party“.
IF USER HAS AN EXISTING AGREEMENT IN EFFECT WITH COMPANY FOR THE LICENSE OF SOFTWARE OR SOFTWARE SERVICES (AN “EXISTING AGREEMENT“), THEN THE PARTIES AGREE THAT THE ORDER FORM SHALL BE GOVERNED BY, AND DEEMED INCORPORATED INTO AND MADE A PART OF, THE EXISTING AGREEMENT (AND NOT THIS AGREEMENT), IN WHICH CASE, THE FOLLOWING TERMS AND CONDITIONS SHALL NOT APPLY.
“Affiliates” means, with respect to either Party, any entity that, directly or indirectly, controls, is controlled by, or is under common control with a party to this Agreement, where control means the power to direct the affairs or management of such entity, whether through the ownership of more than fifty percent (50%) of the voting securities, by contract, as trustee or executor.
“Channel Partner” means a Company authorized distributor, reseller, or other channel partner for the Software.
“Consulting Services” means consulting and/or advisory services provided by Company pursuant to an Order Form.
“Documentation” means technical documentation (manuals and other policies and instructions relating to the use and operation of the Software), not including marketing materials, furnished or made available by Company in conjunction with the Software. References herein to the Software shall (unless the context requires otherwise) be deemed to include the Documentation.
“End Point” means a unique host or device (either physical or virtual) of the User that is scanned by the Software when in operation.
“IPR” means any and all rights, titles, and interests (under any jurisdiction or treaty, whether protectable or not, and whether registered or unregistered) in and to inventions, works of authorship, databases, designs, know-how, technology, and other intellectual property, and includes, but is not limited to, patents, copyrights and similar authorship rights, personal rights (such as moral rights, rights of privacy, and publicity rights), topography and semiconductor mask work rights, data and database rights, trade secret rights and similar rights in confidential information and other non-public information, design rights, industrial property rights, trademark, service mark, trade name, trade dress and similar branding rights, as well as: (i) all applications, registrations, renewals, reexaminations, extensions, continuations, continuations-in-part, provisionals, substitutions, divisions or reissues of or for the foregoing; and (ii) all goodwill associated with the foregoing.
“Order Form” means any order form, or similar document entered into by the Parties from time to time by which User may order a License to the Software, Support and/or Consulting Services in accordance with this Agreement. Each Order Form is hereby incorporated by reference into, and shall be subject to, this Agreement.
“Services” means Support and/or Consulting Services.
“Software” means the Company’s automated self-learning penetration testing software, specified in the Order Form. The term “Software” includes subsequent Updates and Upgrades made available by Company hereunder.
“Support” means Company’s standard technical support of the Software. Unless otherwise specified in an Order Form, Company shall provide up to 3 (three) hours of Support Services each month at no additional charge.
“Updates” means modifications, revisions, or enhancements (such as a bug fix or patch) to the Software (excluding Upgrades), as typically represented by the number to the right of the decimal point (e.g. Version 1.X).
“Upgrades” means new releases and new versions of the Software, as typically represented by the number to the left of the decimal point (e.g. Version X.0).
Subject to this Agreement, Company grants to User a personal, limited, non-exclusive, non-transferable, non-assignable and non-sublicensable license, during the term of the license set forth in the Order Form, to install and use the Software solely for its internal end-use on such number of End Points specified in the Order Form, in each case where such End Point is owned, leased or otherwise substantially controlled by User (the “License”). Any rights not explicitly granted in this Agreement are hereby reserved.
The License shall be subject to whatever other volumes, location, timing, feature, or similar limitations or conditions as specified in the Order Form.
User Affiliate shall have the right to purchase the Software under this Agreement covering its own needs by executing an Order Form. In such case, the Affiliate executing such Order Form shall be deemed the User pursuant to this Agreement and shall be solely responsible and liable for its actions or omissions under this Agreement.
This Agreement commences on the Effective Date and, unless terminated in accordance herewith, shall continue in full force and effect until all Order Forms have expired. Unless otherwise agreed in an Order Form, the License shall automatically renew upon the lapse of the Initial Term as defined under the Order Form, each time for successive periods identical to the Initial Term or one year (whichever is longer) (each, an “Additional Term”, and together with the Initial Term, the “Term”) unless earlier terminated by either party by written notice to the other delivered at least sixty (60) days prior to the end of the Initial Term or any Additional Term, as the case may be. Except if otherwise specified in an Order Form, in case of auto-renewal, the fees for the Software purchased under the initial Order Form may be increased during each Additional Term by up to 7% (seven percent) of the applicable fees in the immediately preceding term.
As a condition to the License, User shall not do (or encourage or permit to be done) any of the following License restrictions (in whole or in part): (a) copy, “frame” or “mirror” the Software; (b) sell, assign, transfer, lease, rent, sublicense, or otherwise distribute or make available the Software to any third party (such as offering it as part of a time-sharing, outsourcing or service bureau environment); (c) publicly perform, display or communicate the Software; (d) modify, alter, adapt, arrange, or translate the Software; (e) decompile, disassemble, decrypt, reverse engineer, extract, or otherwise attempt to discover the source code or non-literal aspects (such as the underlying structure, sequence, organization, file formats, non-public APIs, ideas, or algorithms) of, the Software; (f) remove, alter, or conceal any copyright, trademark, or other proprietary rights notices displayed on or in the Software; (g) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the Software; (h) make a derivative work of the Software, or use it to develop any service or product that is the same as (or substantially similar to) it; (i) store or transmit any robot, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the Software; (j) employ any hardware, software, device, or technique to pool connections or reduce the number of VMs, devices or users that directly access or use the Software (sometimes referred to as ‘virtualisation’, ‘multiplexing’ or ‘pooling’) in order to circumvent any limitations or conditions on the scope of the Subscription; or (k) forge or manipulate identifiers in order to disguise the origin of any data or content inputted or uploaded to, or transmitted through, the Software by User.
To the extent that User is given the right, under any law applicable to User, to receive information and/or materials for purposes of making the Software interoperable with other software, User shall request from Company (in a writing containing reasonably detailed information to allow Company to assess the request) access to such information and/or materials, and if Company accepts such request (in its sole and absolute discretion), Company may impose additional conditions (for example, a fee) on such access and use.
In the event User is purchasing the Software and/or any related Services through a Channel Partner, then: (a) the “Order Form” shall be the order signed between the Channel Partner and Company (the “Company-Channel Partner Order“), and the License scope shall be determined with reference to the Company-Channel Partner Order, and Company shall have no responsibility or liability for any discrepancy between the License scope under such Company-Channel Partner Order on the one hand, and the order issued by User to Channel Partner (the “User-Channel Partner Order“) on the other hand; (b) User will pay the applicable amounts to the Channel Partner, as agreed between User and the Channel Partner, and the Company shall receive the fees from the Channel Partner, as agreed in the Company-Channel Partner Order; (c) Company may suspend or terminate User’s License if Company does not receive the fees; (d) in the event that User is entitled to a refund under the terms and conditions of this Agreement, then Company will refund any applicable fees to the Channel Partner, and the Channel Partner alone will be responsible for refunding the appropriate amounts to User, Under no circumstances shall Company be required to refund more than it actually received from the Channel Partner; and (e) the Channel Partner is not authorized to make any promises or commitments on Company’ behalf, and Company is not bound by any obligations to User other than as set forth in this Agreement.
Company warrants to User that, for three (3) months following the delivery of the Software to the User (the “Warranty Period“), the Software shall substantially conform to its Documentation, under normal use and circumstances, without unauthorized modifications, and where operated according to the Documentation (the “Warranty”). Company’s entire liability, and User’s sole remedy, for breach of the Warranty shall be, at Company’s option, either: (i) termination of this Agreement and a pro rata return to User of any prepaid License fees for the Software covering the unutilized remainder of the License term; or (ii) correction of any defects necessary to materially conform to the Warranty; provided that (i) User makes any Warranty claim in writing within the Warranty Period, and (ii) Company determines that the defect is not due to any misuse, abuse, neglect, negligence, or unauthorized repair or modification of the Software. Any correction provided as part of the foregoing remedy shall not re-commence the Warranty Period and is warranted for the remainder of the Warranty Period, as then in effect. For the avoidance of doubt, Company shall have no obligations under the Warranty if the User violates the terms of this Agreement, or fails to promptly notify the Company of any such violation.
EXCEPT AS OTHERWISE PROVIDED HEREIN, THE SOFTWARE AND ALL SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”. COMPANY DOES NOT MAKE ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION REGARDING THE EFFECTIVENESS, USEFULNESS, RELIABILITY, COMPLETENESS, OR QUALITY OF THE FOREGOING (SUCH AS ACCURACY OF THE INFORMATION ACCESSED BY THE SOFTWARE OR THE SOFTWARE’S OUTPUT), OR AS REGARDS COMPLIANCE WITH ANY LAWS OR REGULATIONS. COMPANY EXCLUDES AND DISCLAIMS ALL OTHER WARRANTIES, CONDITIONS AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION ANY IMPLIED CONDITIONS OR WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET POSSESSION, NON-INFRINGEMENT, OR QUALITY OF SERVICE, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR USAGE OF TRADE. USER IS SOLELY RESPONSIBLE FOR ADEQUATE PROTECTION AND BACKUP OF ALL DATA AND EQUIPMENT USED BY USER.
Company (and/or its licensors and suppliers, as the case may be) is and shall be the sole and exclusive owner of (and is hereby irrevocably assigned) all right, title, and interest (including without limitation all IPR) in and to: (a) the Software; (b) the Documentation; (c) any improvements, modifications, and derivatives thereof/to, regardless of inventorship or authorship; (d) any non-User-identifying information, data, reporting, suggestions, analyses, and/or intelligence relating to the operation, support, and/or User’s use, of the Software (such as metadata, aggregated data, analytics , etc.); and (e) any feedback, suggestions, or ideas for or about the Software.
The Software is protected by various IPR, and its copies are licensed (not sold) to User by Company pursuant to this Agreement.
Company will defend User from and against any third party demand or claim against the User alleging that the User’s use of the Software in accordance with this Agreement infringes such third party’s IPR (a “Claim“); provided the User: (1) promptly notifies Company in writing of such Claim, and gives Company reasonable information and assistance at Company’s expense; (2) grants to Company the sole and exclusive control of the defense and settlement of the Claim; and (3) refrains from admitting any liability under the Claim, or otherwise compromising the defense in whole or in part. Subject to the foregoing conditions, Company shall indemnify and hold harmless the User for any amounts finally awarded against the User by conclusive court ruling of a competent court (or otherwise agreed in settlement) under the Claim.
Company shall have no liability under this Section to the extent such Claim arises from: (a) User’s use of the Software outside the scope of the License or the intended use identified in the Documentation; or (b) User’s modification of the Software, or combination of the Software with third party products or services not supplied by Company; or (c) compliance with any design, specification, or instruction provided by User.
This Section represents Company’s entire liability, and User’s sole remedy, for any and all Claims.
Should the Software (in whole or in part) become, or in Company’s opinion be likely to become, the subject of a Claim, then User permits Company, at Company’s option and expense, to either: (x) obtain for User the right to continue using the Software (or part thereof); or (y) replace or modify the Software (or part thereof) so that its use hereunder becomes non-infringing; provided, however, that if (x) and (y) are not, in Company’s opinion, commercially feasible, Company may terminate the Agreement upon written notice to User, and issue a pro rata refund for the Software License fees paid by User, based on the remaining period of the Agreement.
By virtue of this Agreement, either Party (the “Recipient”) may, directly or indirectly, have access to certain non-public or proprietary information and material of the other Party (the “Discloser”), whether in tangible or intangible form (“Confidential Information”). For the avoidance of doubt, disclosures by, to, or between the Parties’ respective corporate affiliates, shall be subject to and governed by this Agreement. For the avoidance of doubt, the following shall be Confidential Information of the Company: (i) all information related to Company and/or the Software; (ii) all Documentation; and (iii) the terms of the Order Form. Confidential Information does not include information which: (A) the Recipient can demonstrate by tangible evidence is or becomes generally publicly available through no fault of the Recipient and/or anyone acting on its behalf; (B) is information independently developed by the Recipient without use or reliance on Confidential Information of the Discloser; and/or (C) is rightfully in the Recipient’s possession (without confidentiality obligation) at the time of disclosure hereunder. The Recipient shall, at all times maintain, protect the Confidential Information with the same degree of care that User uses to protect its own proprietary information but not less than reasonable care.
Recipient shall use the Discloser’s Confidential Information solely for the purposes of Recipient performing under this Agreement. Recipient shall not disclose the Discloser’s Confidential Information to any third party, except to its employees, legal advisers, and other personnel who have a need to know such Confidential Information in order for Recipient to exercise its rights or perform its obligations under this Agreement; provided, however, that such personnel are subject to substantially similar written confidentiality undertakings as contained herein. The Recipient shall be primarily responsible for the acts and omissions of such personnel. In the event Recipient is required to disclose Discloser’s Confidential Information pursuant to any law, regulation, or governmental or judicial order, Recipient will (a) promptly notify Discloser in writing of such law, regulation or order, (b) reasonably cooperate with Discloser in opposing such disclosure, (c) only disclose to the extent required by such law, regulation or order (as the case may be).
User represents and warrants that it is authorized to grant Company and/or the Software the right to access and use the information necessary to perform the Software’s function. User shall comply with all applicable laws relating information necessary for the Company and/or the Software to perform the obligations under the Agreement, including data protection and privacy laws and regulations, and it will indemnify, defend and hold harmless Company and/or anyone on its behalf from and against any claim, suit, proceeding brought against Company arising out of or relating to the use of the Software and the information in breach of such laws or regulations.
EXCEPT FOR EITHER PARTY’S BREACH OF THE OTHER PARTY’S IPR (SUCH AS A BREACH UNDER SECTION 3 (LICENSE RESTRICTIONS) AND/OR SECTION 8 (CONFIDENTIAL INFORMATION),
(A) IN NO EVENT WILL EITHER PARTY OR ITS DIRECTORS, OFFICERS OR AFFILIATES BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT OR ANY ORDER FORM, FOR ANY: (i) CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES; (ii) LOSS OF PROFITS, LOSS OF BUSINESS, BUSINESS INTERRUPTION, LOSS OF REVENUE, LOSS OF ANTICIPATED SAVINGS, LOSS OF CONTRACTS, OR LOSS OF THE USE OF MONEY; (iii) LOSS OF (OR DAMAGE TO) GOODWILL, REPUTATION, DATA, USE, OR INFORMATION SYSTEMS; AND/OR (iv) THE COSTS OF PROCURING SUBSTITUTE GOODS OR SERVICES; AND
(B) COMPANY’S (AND ITS AFFILIATES) AGGREGATE LIABILITY UNDER, OR OTHERWISE IN IN CONNECTION WITH, THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY USER AND RECEIVED BY COMPANY FOR THE PARTICULAR SOFTWARE OR SERVICE TO WHICH THE LIABILITY RELATES, IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE GIVING RISE TO LIABILITY.
THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION SHALL APPLY: (i) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; (ii) EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (iii) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (iv) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY (INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, TORT, BREACH OF STATUTORY DUTY, STRICT LIABILITY, MISREPRESENTATION, RESTITUTION, OR OTHERWISE).
Except for payment obligations, neither Party is liable for any failure or delay in performance due to any cause beyond its reasonable control.
Each Party may terminate this Agreement immediately upon written notice to the other Party: (a) if the other Party commits a material breach of this Agreement and, if curable, fails to cure that breach within thirty (30) days after receipt of written notice specifying the material breach; and/or (b) if the other Party is declared bankrupt by a judicial decision, or, in the event an involuntary bankruptcy action is filed against such other Party, it has not taken, within sixty (60) days from service of such action to such Party, any possible action under applicable law for such filed action to be dismissed. In the event User is fifteen (15) days or more overdue on any payment under this Agreement, Company may suspend access to the Software and/or terminate this Agreement immediately upon written notice to User.
Upon termination of this Agreement for any reason, User will: (i) uninstall all copies of the Software, and discontinue any and all use thereof; (ii) as directed, permanently erase, destroy and/or return to Company the Software, Documentation and all copies thereof (and deliver to Company certification that User has complied with the foregoing); and (iii) promptly pay any outstanding amounts due. Termination of this Agreement shall not affect any right, remedy, obligation or liability that accrued as of the effective date of termination. Any provision hereunder that by its nature ought to survive termination of this Agreement, shall survive termination, including without limitation Sections 2, 3, 5, 6, 7, 8, 9, 10, 13 and 14.
User agrees that Company may refer to User as a customer of Company, including by displaying User’s name and logo on Company’s website and other marketing materials.
The Pentera entity entering into the Agreement shall be the entity stated in the Order Form. The law that will govern the Agreement and that will apply in the event of any dispute or lawsuit arising out of or in connection with the Agreement, including any question regarding its existence, validity or termination, and the competent courts that have exclusive jurisdiction over any such dispute or lawsuit, depends on the Pentera entity stated in the Order Form, as follows:
|Pentera entity entering into this Agreement||Pentera entity address||Governing Law||Courts with exclusive jurisdiction|
|Pentera Security Inc.||200 Summit Drive, Burlington, Massachusetts, 01803, USA||New York, USA||New York City, New York, USA|
|Pentera Security GmbH||Chilehaus A, Fischertwiete 2, 20095 Hamburg, Germany||England and Wales||London, England|
|Pentera Security UK Ltd.||35 Ballards Lane, London N3 1XW, United Kingdom||England and Wales||London, England|
|Pentera Security SG Pte. Ltd.||DUO Tower, 3 Fraser Street Level 08, Singapore 189352, Singapore||England and Wales||London, England|
|Pentera Security Ltd.||94 Em Hamoshavot road, Petah Tikva,4970602, Israel||Israel||Tel Aviv-Jaffa, Israel|
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
Assignment. Neither Party may assign this Agreement in whole or in part without the prior written consent of the other Party, which consent shall not be unreasonably withheld, and any unauthorized assignment shall be null and void. Notwithstanding the foregoing, each Party may, upon written notice, assign this Agreement in whole to: (a) a corporate affiliate; or (b) a successor in connection with a merger, consolidation, or acquisition of all or substantially all of the assigning Party’s assets. Subject to the foregoing, this Agreement binds and benefits each Party and its respective successors and assigns. Moreover, Company may subcontract its performance hereunder to its corporate affiliates. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, then: (a) the remaining provisions of this Agreement shall remain in full force and effect; and (b) the Parties hereto agree that the court making such determination shall have the power to limit the provision, to delete specific words or phrases, or to replace the provision with a provision that is legal, valid and enforceable and that most closely approximates the original legal intent and economic impact of such provision, and this Agreement shall be enforceable as so modified in respect of such jurisdiction. In the event such court does not exercise the power granted to it as aforesaid, then such provision will be ineffective solely as to such jurisdiction (and only to the extent and for the duration of such illegality, invalidity or unenforceability), and will be substituted (in respect of such jurisdiction) with a valid, legal and enforceable provision that most closely approximates the original legal intent and economic impact of such provision. Entire Agreement; Modification. This Agreement (and its annexes) represents the entire agreement of the Parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous oral or written understandings and statements by the Parties with respect to such subject matter. In entering into this Agreement, neither Party is relying on any representation or statement not expressly specified in this Agreement. Any language or provisions contained in the Parties’ electronic communications, ordering documents, packaging or specifications, or contained in any of the parties’ “shrinkwrap,” “clickwrap,” “browsewrap” agreements, whether or not different from, or in addition to, the terms of this Agreement, shall be void and of no effect. This Agreement may only be amended by a written instrument duly signed by each Party. The section and subsection headings used in this Agreement are for convenience only. This Agreement may be executed in one or more counterparts. Relationship. The relationship of the Parties is solely that of independent contractors, and neither Party nor its employees are the servants, agents, or employees of the other. Nothing in this Agreement shall be construed to create a relationship of employer and employee, principal and agent, joint venture, partnership, association, or otherwise between the Parties. Waiver; Remedies. No failure or delay on the part of either Party in exercising any right or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of any such right or remedy preclude any other or further exercise thereof, or the exercise of any other right or remedy. Any waiver granted hereunder must be in writing, duly signed by the waiving Party, and will be valid only in the specific instance in which given. Except as may be expressly provided otherwise in this Agreement, no right or remedy conferred upon or reserved by either Party under this Agreement is intended to be, or will be deemed, exclusive of any other right or remedy under this Agreement, at law, or in equity, but will be cumulative of such other rights and remedies. Export Control. User shall not transfer, export, re-export, import, re-import or divert the Software or Documentation (in whole or part) in violation of any export or re-export control laws and regulations (such as the United States’ ITAR, EAR, and OFAC regulations), as well as any applicable import and use restrictions, all as then in effect, and shall not transfer, export, re-export, import, re-import or divert the Software or Documentation (in whole or part) to Lebanon, Syria, Iran, Iraq, Sudan, Yemen, Cuba, or North Korea (or other countries specifically designated in writing by Company from time to time). Notices. All notices required or permitted under this Agreement shall be made in writing and shall be sent by personal delivery, reputable overnight courier service (e.g., FedEx, UPS, DHL, etc.) or by registered or certified mail, return receipt requested, addressed to the other party at the address set forth above. The date of such notice shall be deemed to be the day it is delivered, if delivered personally or by courier, or five (5) days after date of dispatch, if mailed.