diff options
Diffstat (limited to 'LICENSE.NESSUS')
| -rw-r--r-- | LICENSE.NESSUS | 1040 |
1 files changed, 0 insertions, 1040 deletions
diff --git a/LICENSE.NESSUS b/LICENSE.NESSUS deleted file mode 100644 index 548d9594d931..000000000000 --- a/LICENSE.NESSUS +++ /dev/null @@ -1,1040 +0,0 @@ -TENABLE NETWORK SECURITY, INC. -NESSUS -SOFTWARE LICENSE AGREEMENT - -This is a legal agreement ("Agreement") between -Tenable Network Security, Inc., a Delaware -corporation having offices at 7063 Columbia Gateway -Drive, Suite 100, Columbia, MD 21046 -("Tenable"), and you, the party licensing -Software and obtaining the feed services ("You"). - This Agreement covers your permitted use of the -Software and the Services. BY CLICKING BELOW YOU -INDICATE YOUR ACCEPTANCE OF THIS AGREEMENT AND -YOU ACKNOWLEDGE THAT YOU HAVE READ ALL OF THE -TERMS AND CONDITIONS OF THIS AGREEMENT, -UNDERSTAND THEM, AND AGREE TO BE LEGALLY BOUND BY -THEM. If You do not agree with the terms of this -Agreement, You may not use the Software, as such -term is defined below. The Software can only be -provided to You by Tenable. The term -"Agreement" includes any exhibits to the document. - - -1. Grant of Software License. -(a) Grant. Subject to the terms and conditions, -and your acceptance, of this Agreement, Tenable -grants to You a perpetual, non-exclusive, -non-transferable license (the "License") in -object code form only to use the Software (i) -solely for Your internal operations and internal -security purposes to seek and assess information -technology vulnerabilities events for Your own -networks; and (ii) to provide services to third -parties to seek and assess information technology -vulnerabilities events on the third party's -network. Any rights in the Software not granted -in this Agreement are expressly reserved by -Tenable. -(b) Definition of Software. -(i) The term "Software" means (i) Nessus 3.x that -You download from any Tenable website, including -www.nessus.org, or obtain via CD or any other -method; (ii) the associated user manuals and user -documentation, if any, as well as any patches, -updates, improvements, additions, enhancements -and other modifications or revised versions of -Nessus 3.x that may be provided to You by Tenable -from time to time that were developed by Tenable; -and (iii) any Nessus daemons, command line -interfaces, and/or any graphical user interfaces -You obtain from Tenable that were developed by -Tenable. -(ii) Any Software that is not marked as -copyrighted by Tenable are not Software as -defined under this Agreement and are subject to -other license terms. -(iii) Tenable has the right to, or the right to -license, the Software, including any libraries -licensed under LGPL. Contact Tenable for more -details. -(c) Maintenance and Support. Tenable will not -provide any maintenance or support services as -part of this Agreement unless You obtain a -"Direct Feed Subscription", as such term is -defined in Exhibit A, from Tenable. - -2. Subscriptions. -You may obtain a subscription to receive Plugins -(as such term is defined in Exhibit A) and -updates to the Plugins as further described in -Exhibit A, which is incorporated herein by -reference. - -3. Term. -This Agreement commences on the date on which You -execute this Agreement or download, install or -use the Software (whichever occurs first) (the -"Effective Date") and continues until it is -terminated according to the terms of this -Agreement. - -4. Intellectual Property. -This Agreement does not transfer to You any title -to or any ownership right or interest in the -Software. You acknowledge that Tenable owns and -retains all right, title and interest in and to -the Software. All enhancements, modifications -and derivative works that Tenable makes to the -Software or accompanying documentation, and all -intellectual property rights therein, will be the -property of Tenable. Your rights with respect to -the Software are limited to the right to use the -Software pursuant to the terms and conditions in -this Agreement. - -5. No Reverse Engineering, Other Restrictions. -You may not directly or indirectly: (i) sell, -lease, redistribute or transfer any of the -Software on a stand-alone basis; (ii) decompile, -disassemble, reverse engineer, or otherwise -attempt to derive, obtain or modify the source -code of the Software; (iii) reproduce, modify, -translate or create derivative works of all or -part any of the Software; (iv) rent, lease or -loan the Software in any form to any third party -or otherwise allow a third party to use the -Software; or (v) remove, alter or obscure any -proprietary notice, labels, or marks on the -Software. You may not sublicense any of the -rights granted to You in this Agreement. You may -not distribute or otherwise provide Software to -third parties. You are responsible for all use -of the Software and for compliance with this -Agreement; any breach by You or any user using -the Software on Your behalf shall be deemed to -have been made by You. - -6. Restrictions on Third Party Use and Access. - You agree not to deliver or otherwise -make available the Software, in whole or in part, -to any party other than Tenable, except for -purposes specifically related to Your use of the -Software without Tenable's prior written consent. -You agree to use Your best efforts and to take -all reasonable steps to ensure that no -unauthorized parties have access to the Software -and that no unauthorized copy, publication, -disclosure or distribution of the Software, in -whole or in part, in any form is made by You or -any third party. You agree to notify Tenable of -any unauthorized access to, or use, copying, -publication, disclosure or distribution of, the -Software. You acknowledge that the Software -contains valuable confidential information and -trade secrets of Tenable or its affiliates and -their licensors or suppliers, and that -unauthorized access to, or use, copying, -publication, disclosure or distribution of, the -Software is harmful to Tenable or its affiliates -and their licensors or suppliers. - -7. Confidentiality. -As used in this Agreement, "Confidential -Information" means any and all information and -material that: (i) gives of Tenable some -competitive business advantage or the opportunity -of obtaining such advantage or is otherwise -confidential or a trade secret; (ii) is marked -"Confidential," "Restricted," or "Confidential -Information" or other similar marking; (iii) is -known by You to be confidential or proprietary; -or (iv) from all the relevant circumstances, -should reasonably be assumed by You to be -confidential or proprietary. Confidential -Information includes the Software. Confidential -Information does not include any information that -You can prove: (a) was already known to You -without restrictions at the time of its -disclosure by Tenable; (b) after its disclosure -by Tenable, is made known to You without -restrictions by a third party having the right to -do so; (c) is or becomes publicly known without -violation of this Agreement; or (d) is -independently developed by You without reference -to the Confidential Information. Confidential -Information will remain the property of Tenable, -and You will not be deemed by virtue of this -Agreement or any access to the Confidential -Information to have acquired any right, title or -interest in or to the Confidential Information. -You may not copy any Confidential Information -without Tenable's prior written permission. You -may not remove any copyright, trademark, -proprietary rights or other notices included in -or affixed to any Confidential Information. You -may not use the Confidential Information for Your -or a third party's benefit, competitive -development or any other purpose. You agree: (I) -to hold the Confidential Information in strict -confidence; (II) to limit disclosure of the -Confidential Information to Your own employees -having a need to know the Confidential -Information for the purposes of this Agreement; -(III) not to disclose any Confidential -Information to any third party; (IV) to use the -Confidential Information solely and exclusively -in accordance with the terms of this Agreement in -order to carry out Your obligations and exercise -Your rights under this Agreement; (V) to afford -the Confidential Information at least the same -level of protection against unauthorized -disclosure or use as You normally uses to protect -Your own information of a similar character, but -in no event less than reasonable care; and (VI) -to notify Tenable promptly of any unauthorized -use or disclosure of the Confidential Information -and to cooperate with and assist Tenable in every -reasonable way to stop or minimize such -unauthorized use or disclosure. You agree that -if a court of competent jurisdiction determines -that You have breached, or attempted or -threatened to breach, Your confidentiality -obligations to Tenable or Tenable's proprietary -rights, money damages, Tenable will suffer -irreparable harm and that monetary damages will -be inadequate to compensate Tenable for such -breach. Accordingly, Tenable, in addition to and -not in lieu of any other rights, remedies or -damages available to it at law or in equity, -shall be entitled to seek appropriate injunctive -relief and other measures restraining further -attempted or threatened breaches of such -obligations without requirement to post any bond. - -8. Warranty and Disclaimer. -(a) Software. Tenable warrants that, for a -period of thirty (30) days from the Effective -Date (the "Warranty Period"), the unmodified -Software will, under normal use, substantially -perform the functions described in its technical -documentation. If there has been a breach of -this warranty, then Tenable's sole obligation, -and Your exclusive remedy, will be for Tenable, -at its option, to correct the performance of the -Software at no charge so that it substantially -performs the functions described in its technical -documentation or to replace the Software. You -acknowledge that, because the license for the -Software is at no charge, the remedies described -in the preceding sentence are sufficient and can -not fail of their essential purpose. -(b) Disclaimer. EXCEPT AS SPECIFICALLY SET FORTH -IN SECTION 8(a), TENABLE DOES NOT MAKE ANY -WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, -OR STATUTORY, INCLUDING ANY WARRANTIES OF TITLE, -NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A -PARTICULAR PURPOSE, INTEGRATION, PERFORMANCE AND -ACCURACY, AND ANY IMPLIED WARRANTIES ARISING FROM -STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE -OR USAGE OF TRADE, OTHER THAN THOSE WARRANTIES -WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, -RESTRICTION, OR MODIFICATION UNDER APPLICABLE -LAW. TENABLE MAKES NO WARRANTY THAT THE SOFTWARE -WILL OPERATE ERROR-FREE, FREE OF ANY SECURITY -DEFECTS OR IN AN UNINTERRUPTED MANNER. - -9. Exclusion Damages. -UNDER NO CIRCUMSTANCES WILL TENABLE BE LIABLE TO -YOU OR ANY OTHER PERSON OR ENTITY FOR DIRECT -(INCLUDING FOR NEGLIGENCE, STRICT LIABILITY, -BREACH OF CONTRACT, MISREPRESENTATION AND OTHER -CONTRACT OR TORT CLAIMS), INDIRECT, INCIDENTAL, -CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE -DAMAGES (INCLUDING NEGLIGENCE, STRICT LIABILITY, -BREACH OF CONTRACT, MISREPRESENTATION AND OTHER -CONTRACT OR TORT CLAIMS; LOST PROFITS; OR ANY -DAMAGES RESULTING FROM LOSS OF DATA, SECURITY -BREACH, PROPERTY DAMAGE, LOSS OF REVENUE, LOSS OF -BUSINESS OR LOST SAVINGS), ARISING OUT OF OR IN -CONNECTION WITH THIS AGREEMENT, THE PERFORMANCE -OF THE SOFTWARE OR OF ANY OTHER OBLIGATIONS -RELATING TO THIS AGREEMENT, WHETHER OR NOT -TENABLE HAS BEEN ADVISED OF THE POSSIBILITY OF -SUCH DAMAGES. YOU ARE SOLELY RESPONSIBLE AND -LIABLE FOR VERIFYING THE SECURITY, ACCURACY AND -ADEQUACY OF ANY OUTPUT FROM THE SOFTWARE, AND FOR -ANY RELIANCE THEREON. - -10. Additional Provisions Regarding Liability. -The parties agree that the foregoing limitations -will not be read so as to limit any liability to -an extent that would not be permitted under -applicable law and specifically will not limit -any liability for gross negligence, intentional -tortious or unlawful conduct or damages for -strict liability that may not be limited by law. - -11. Indemnification. -Each of the parties acknowledges and agrees that -by entering into and performing its obligations -under this Agreement, Tenable will not assume and -should not be exposed to the business and -operational risks associated with Your business. -You acknowledge that Your use of the Software is -only a portion of Your overall security solution -and that Tenable is not responsible for Your -overall security solution. As between You and -Tenable, You are (and Tenable is not) responsible -for the success or failure of such security -solution. Accordingly, You agree that you will, -at your expense, indemnify, defend and hold -Tenable harmless in all claims and actions that -seek compensation of any kind for injury or death -to persons and/or for damage to property, and -that arise out of or relate to Your security -solutions or Your use of the Software or the -solutions You provide to a third party through -Your use of the Software. You also agree to pay -all settlements, costs, damages, legal fees and -expenses finally awarded in all such claims and -actions. - -12. Legal Compliance; Restricted Rights. -The Software are provided solely for lawful -purposes and use. You are solely responsible -for, and agree to perform your obligations in a -manner that complies with all applicable -national, regional and local laws, statutes, -ordinances, regulations, codes and other types of -government authority (including those governing -export control, unfair competition, -anti-discrimination, false advertising, privacy -and data protection, and publicity and those -identifying and procuring required permits, -licenses, approvals, and other consents) -("Laws"). If a charge is made that You are not -complying with any such Laws, You will promptly -notify Tenable of such charges in writing. -Without limiting the foregoing, You agree to -comply with all U.S. export Laws and applicable -export Laws of Your locality (if You are not in -the United States), to ensure that no information -or technical data provided pursuant to this -Agreement is exported or re-exported directly or -indirectly in violation of Law or without first -obtaining all required authorizations or -licenses. You will, at Your sole cost and -expense, obtain and maintain in effect all -permits, licenses, approvals and other consents -related to Your obligations under this Agreement. - You agree, at Your expense, to comply with all -foreign exchange and other Laws applicable to -You. The Software is licensed subject to -Tenable's standard commercial agreement; Software -licensed for use by the United States government -is provided with "Restricted Rights" only as -defined in 48 C.F.R. _52.227-14 and 48 C.F.R. -_252.227-7014 if the commercial terms are deemed -not to apply. - -13. Termination. -(a) You may terminate this Agreement at any time -by destroying or returning to Tenable the -Software, together with all copies, modifications -and merged portions of the Software in any form. -(b) This Agreement and Your License to use the -Software shall terminate automatically if You -fail to comply with any term or condition of this -Agreement. Immediately after termination of this -Agreement, You shall destroy or return to Tenable -the Software, together with all copies, -modifications and merged portions of the Software -in any form, and shall certify to Tenable in -writing that through Your best efforts and to the -best of your knowledge all such materials have -been destroyed or returned to Tenable and removed -from host computers on which Software resided. - -14. Governing Law. -This Agreement shall be governed in all respects -by the laws of the State of Maryland, USA, -without regard to choice-of-law rules or -principles. You expressly agree with Tenable -that this Agreement shall not be governed by the -U.N. Convention on Contracts for the -International Sale of Goods, the application of -which is expressly excluded. - -15. Dispute Resolution. -You and Tenable submit to the exclusive -jurisdiction of the courts of Howard County, -Maryland and the United States District Court for -Maryland, Baltimore Division, for any question or -dispute arising out of or relating to this -Agreement. Due to the high costs and time -involved in commercial litigation before a jury, -the parties waive all right to a jury trial with -respect to any and all issues in any action or -proceeding arising out of or related to this -Agreement. - -16. Notices. -Any notices or other communication required or -permitted to be made or given by either Party -pursuant to this Agreement will be in writing, in -English, and will be deemed to have been duly -given when delivered if delivered personally or -sent by recognized overnight express courier, to -the address specified herein or such other -address as Tenable may specify in writing. All -notices to Tenable shall be sent to the attention -of the Legal Department (unless otherwise -specified by Tenable). -All notices shall be sent to: -Tenable Network Security -7063 Columbia Gateway Drive, Suite 100 -Columbia, MD 21046 -Attn: Legal Department - -17. Transfer and Assignment. -You may not rent, lease, lend, sublicense or -otherwise provide the Software to any third -party. You may not assign or otherwise transfer -this Agreement without Tenable's prior written -consent. You may use the Software to provide -services to third parties as expressly provided -in this Agreement. - -18. Publicity. -You will not use Tenable's company name or any -trademarks, logos, service marks or other -intellectual property, or refer to Tenable or any -of its employees, in any form of advertising, -publicity or release without the prior written -approval of Tenable, which Tenable may withhold -in its sole discretion. - -19. Language. -The language of this Agreement is English and all -notices given under this Agreement must be in -English to be effective. No translation, if any, -of this Agreement or any notice will be of any -effect in the interpretation of this Agreement or -in determining the intent of the parties. The -parties have expressly agreed that all invoices -and related documents be drafted in English. - -20. Third Parties. -This Agreement is not intended nor will it be -interpreted to confer any benefit, right or -privilege in any person or entity not a party to -this Agreement. Any party who is not a party to -this Agreement has no right under any Law to -enforce any term of this Agreement. - -21. Trademarks. -Nessus is a trademark of Tenable. Tenable does -not grant to You, either expressly or by -implication, any license or permission under this -Agreement to use any of the Tenable marks -(including trademarks, service marks, trade -names, trade dress, symbols, logos, designs, -domain names, slogans and other source -identifiers) (collectively, the "Marks"). - -22. General. -This Agreement constitutes the entire agreement -between the parties, and supersedes all other -prior or contemporaneous communications between -the parties (whether written or oral) relating to -the subject matter of this Agreement. No -supplement, modification or amendment of this -Agreement shall be binding, unless executed in -writing by a duly authorized representative of -each party to this Agreement. The provisions of -this Agreement will be deemed severable, and the -unenforceability of any one or more provisions -will not affect the enforceability of any other -provisions. In addition, if any provision of -this Agreement, for any reason, is declared to be -unenforceable, the parties will substitute an -enforceable provision that, to the maximum extent -possible under applicable law, preserves the -original intentions and economic positions of the -parties. No failure or delay by a party in -exercising any right, power or remedy will -operate as a waiver of that right, power or -remedy, and no waiver will be effective unless it -is in writing and signed by the waiving party. -If a party waives any right, power or remedy, the -waiver will not waive any successive or other -right, power or remedy the party may have under -this Agreement. Any provision of this Agreement -that imposes or contemplates continuing -obligations on a party will survive the -expiration or termination of this Agreement. -"Including" and its derivatives (such as -"include" and "includes") mean including without -limitation; this term is as defined, whether or -not capitalized in this Agreement. -EXHIBIT A -TENABLE NETWORK SECURITY, INC. -SUBSCRIPTION AGREEMENT - -This is a legal agreement ("Subscription -Agreement") between Tenable Network Security, -Inc., a Delaware corporation having offices at -7063 Columbia Gateway Drive, Suite 100, Columbia, MD -21046 ("Tenable"), and you, the party downloading -the Plugins as defined below ("You"), through -Tenable's Subscription service as defined below. -This Subscription Agreement covers your permitted -use of the Plugins. BY CLICKING BELOW YOU -INDICATE YOUR ACCEPTANCE OF THIS SUBSCRIPTION -AGREEMENT AND YOU ACKNOWLEDGE THAT YOU HAVE READ -ALL OF THE TERMS AND CONDITIONS OF THIS -SUBSCRIPTION AGREEMENT, UNDERSTAND THEM, AND -AGREE TO BE LEGALLY BOUND BY THEM. If You do not -agree with the terms of this Subscription -Agreement, You may not use the Plugins as defined -below. The Plugins can only be provided to You -by Tenable. - -1) Grant of Plugins License. -i) Grant. Subject to the terms and conditions, -and your acceptance, of this Subscription -Agreement, Tenable grants to You a perpetual, -non-exclusive, non-transferable license (the -"License") in object code form only to use the -Plugins (a) solely for Your internal operations -and internal security purposes to seek and assess -information technology vulnerabilities events for -Your own networks; and (b) to provide services to -third parties to seek and assess information -technology vulnerabilities events on the third -party's network. Any rights in the Plugins not -granted in this Subscription Agreement are -expressly reserved by Tenable. -ii) Definition of Plugins. The term "Plugins" -means (i) any plugins (and related updates) that -are marked as copyrighted by Tenable. Any -plugins or components that are not marked as -copyrighted by Tenable are not Plugins as defined -under this Subscription Agreement and are subject -to other license terms. -iii) Use. You agree to use the Plugins only in -conjunction with Nessus or NeWT vulnerability -scanner programs obtained directly from -www.nessus.org or www.tenablesecurity.com and -registered with Tenable ("Registered Scanners") -and for which You have paid the applicable fee, -if any. Your use of the Plugins will be in -accordance with one of the Subscriptions -described in Section 2 below. - -2) Subscriptions. -i) General. The Registered Feed Subscription and -Direct Feed Subscription include vulnerability -detection programs not developed by Tenable or -its licensors, which are licensed to You under -separate agreements. The terms and conditions of -this Subscription Agreement do not apply to such -vulnerability detection programs. -ii) Registered Feed Subscription. The Registered -Feed Subscription permits You to use the Plugins -in conjunction with Registered Scanners to detect -vulnerabilities only on your system or network or -on the system or network of a third party for -which you perform scanning services, auditing -services, incident response services, -vulnerability assessment services or other -security consulting services. -iii) Direct Feed Subscription. The Direct Feed -Subscription permits You to use the Plugins in -conjunction with Registered Scanners to detect -vulnerabilities only on your system or network or -on the system or network of a third party for -which you perform scanning services, auditing -services, incident response services, -vulnerability assessment services or other -security consulting services; provided that You -have paid the applicable annual subscription fee -for each Registered Scanner in conjunction with -which You will use the Plugins. You will receive -the Direct Feed Subscription and email support if -you use this Direct Feed Subscription with the -Supported commercial version of Nessus (for -clarification, a commercial version of Nessus -means Nessus version 3 or better which was -developed, copyrighted and distributed by Tenable -and not released as open source or licensed under -the GPL). The term "Supported" means the list of -Operating System distribution(s) included in the -Plugin FAQ or Nessus FAQ found on any Tenable -website, including www.nessus.org. For the -Direct Feed Subscription, You agree to pay a -subscription fee to Tenable for each system on -which you have installed a Registered Scanner. - -3) Term. -This Subscription Agreement commences on the date -on which You execute this Subscription Agreement -or download, install or use the Plugins -(whichever occurs first) (the "Effective Date") -and continues until it is terminated according to -the terms of this Subscription Agreement. - -4) Intellectual Property. -This Subscription Agreement does not transfer to -You any title to or any ownership right or -interest in the Plugins. You acknowledge that -Tenable owns and retains all right, title and -interest in and to the Plugins. All -enhancements, modifications and derivative works -that Tenable makes to the Plugins or accompanying -documentation, and all intellectual property -rights therein, will be the property of Tenable. -Your rights with respect to the Plugins are -limited to the right to use the Plugins pursuant -to the terms and conditions in this Subscription -Agreement. - -5) No Reverse Engineering, Other Restrictions. -You may not directly or indirectly: (i) sell, -lease, redistribute or transfer any of the -Plugins on a stand-alone basis; (ii) decompile, -disassemble, reverse engineer, or otherwise -attempt to derive, obtain or modify the source -code of the Plugins; (iii) reproduce, modify, -translate or create derivative works of all or -part any of the Plugins; (iv) rent, lease or loan -the Plugins in any form to any third party or -otherwise allow a third party to use the Plugins; -or (v) remove, alter or obscure any proprietary -notice, labels, or marks on the Plugins. You may -not sublicense any of the rights granted to You -in this Subscription Agreement. You may not -distribute or otherwise provide Plugins to third -parties. You are responsible for all use of the -Plugins and for compliance with this Subscription -Agreement; any breach by You or any user using -the Plugins on Your behalf shall be deemed to -have been made by You. - -6) Restrictions on Third Party Use and Access. - You agree not to deliver or otherwise -make available the Plugins, in whole or in part, -to any party other than Tenable, except for -purposes specifically related to Your use of the -Plugins without Tenable's prior written consent. -You agree to use Your best efforts and to take -all reasonable steps to ensure that no -unauthorized parties have access to the Plugins -and that no unauthorized copy, publication, -disclosure or distribution of the Plugins, in -whole or in part, in any form is made by You or -any third party. You agree to notify Tenable of -any unauthorized access to, or use, copying, -publication, disclosure or distribution of the -Plugins. You acknowledge that the Plugins -contains valuable confidential information and -trade secrets of Tenable or its affiliates and -their licensors or suppliers, and that -unauthorized access to, or use, copying, -publication, disclosure or distribution of the -Plugins is harmful to Tenable or its affiliates -and their licensors or suppliers. - -7) Confidentiality. -As used in this Subscription Agreement, -"Confidential Information" means any and all -information and material that: (i) gives of -Tenable some competitive business advantage or -the opportunity of obtaining such advantage or is -otherwise confidential or a trade secret; (ii) is -marked "Confidential," "Restricted," or -"Confidential Information" or other similar -marking; (iii) is known by You to be confidential -or proprietary; or (iv) from all the relevant -circumstances, should reasonably be assumed by -You to be confidential or proprietary. -Confidential Information includes the Plugins and -Subscriptions. Confidential Information does not -include any information that You can prove: (a) -was already known to You without restrictions at -the time of its disclosure by Tenable; (b) after -its disclosure by Tenable, is made known to You -without restrictions by a third party having the -right to do so; (c) is or becomes publicly known -without violation of this Subscription Agreement; -or (d) is independently developed by You without -reference to the Confidential Information. -Confidential Information will remain the property -of Tenable, and You will not be deemed by virtue -of this Subscription Agreement or any access to -the Confidential Information to have acquired any -right, title or interest in or to the -Confidential Information. You may not copy any -Confidential Information without Tenable's prior -written permission. You may not remove any -copyright, trademark, proprietary rights or other -notices included in or affixed to any -Confidential Information. You may not use the -Confidential Information for Your or a third -party's benefit, competitive development or any -other purpose. You agree: (I) to hold the -Confidential Information in strict confidence; -(II) to limit disclosure of the Confidential -Information to Your own employees having a need -to know the Confidential Information for the -purposes of this Subscription Agreement; (III) -not to disclose any Confidential Information to -any third party; (IV) to use the Confidential -Information solely and exclusively in accordance -with the terms of this Subscription Agreement in -order to carry out Your obligations and exercise -Your rights under this Subscription Agreement; -(V) to afford the Confidential Information at -least the same level of protection against -unauthorized disclosure or use as You normally -uses to protect Your own information of a similar -character, but in no event less than reasonable -care; and (VI) to notify Tenable promptly of any -unauthorized use or disclosure of the -Confidential Information and to cooperate with -and assist Tenable in every reasonable way to -stop or minimize such unauthorized use or -disclosure. You agree that if a court of -competent jurisdiction determines that You have -breached, or attempted or threatened to breach, -Your confidentiality obligations to Tenable or -Tenable's proprietary rights, money damages, -Tenable will suffer irreparable harm and that -monetary damages will be inadequate to compensate -Tenable for such breach. Accordingly, Tenable, -in addition to and not in lieu of any other -rights, remedies or damages available to it at -law or in equity, shall be entitled to seek -appropriate injunctive relief and other measures -restraining further attempted or threatened -breaches of such obligations without requirement -to post any bond. - -8) Disclaimer of Warranties. - YOU EXPRESSLY AGREE THAT USE OF THE -PLUGINS AND THE SUBSCRIPTIONS ARE AT YOUR SOLE -RISK. THE SUBSCRIPTONS ARE AVAILABLE STRICTLY ON -AN "AS IS" AND "AS AVAILABLE" BASIS. TENABLE -DOES NOT MAKE ANY WARRANTIES OF ANY KIND, WHETHER -EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY -WARRANTIES OF TITLE, NON-INFRINGEMENT, -MERCHANTABILITY, FITNESS FOR A PARTICULAR -PURPOSE, INTEGRATION, PERFORMANCE AND ACCURACY, -AND ANY IMPLIED WARRANTIES ARISING FROM STATUTE, -COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE -OF TRADE, OTHER THAN THOSE WARRANTIES WHICH ARE -IMPLIED BY AND INCAPABLE OF EXCLUSION, -RESTRICTION, OR MODIFICATION UNDER APPLICABLE -LAW. TENABLE MAKES NO WARRANTY THAT THE PLUGINS -OR SUBSCRIPTIONS WILL OPERATE ERROR-FREE, FREE OF -ANY SECURITY DEFECTS OR IN AN UNINTERRUPTED -MANNER. - -9) Limitation of Liability. -IF YOU SHOULD BECOME ENTITLED TO CLAIM DAMAGES -FROM TENABLE (INCLUDING FOR NEGLIGENCE, STRICT -LIABILITY, BREACH OF CONTRACT, MISREPRESENTATION -AND OTHER CONTRACT OR TORT CLAIMS) TENABLE WILL -BE LIABLE ONLY FOR THE AMOUNT OF YOUR ACTUAL -DIRECT DAMAGES, NOT TO EXCEED (IN THE AGGREGATE -FOR ALL CLAIMS) THE FEES, IF ANY, YOU PAID TO -TENABLE - -10) Exclusion of Other Damages. - UNDER NO CIRCUMSTANCES WILL TENABLE BE -LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR -ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, -EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING -NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT, -MISREPRESENTATION AND OTHER CONTRACT OR TORT -CLAIMS; LOST PROFITS; OR ANY DAMAGES RESULTING -FROM LOSS OF DATA, SECURITY BREACH, PROPERTY -DAMAGE, LOSS OF REVENUE, LOSS OF BUSINESS OR LOST -SAVINGS), ARISING OUT OF OR IN CONNECTION WITH -THIS SUBSCRIPTION AGREEMENT, THE PERFORMANCE OF -THE PLUGINS OR SUBSCRIPTIONS OR OF ANY OTHER -OBLIGATIONS RELATING TO THIS SUBSCRIPTION -AGREEMENT, WHETHER OR NOT TENABLE HAS BEEN -ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU -ARE SOLELY RESPONSIBLE AND LIABLE FOR VERIFYING -THE SECURITY, ACCURACY AND ADEQUACY OF ANY OUTPUT -FROM THE PLUGINS AND SUBSCRIPTIONS, AND FOR ANY -RELIANCE THEREON. - -11) Additional Provisions Regarding Liability. -The parties agree that the foregoing limitations -will not be read so as to limit any liability to -an extent that would not be permitted under -applicable law and specifically will not limit -any liability for gross negligence, intentional -tortious or unlawful conduct or damages for -strict liability that may not be limited by law. - -12) Indemnification. -Each of the parties acknowledges and agrees that -by entering into and performing its obligations -under this Subscription Agreement, Tenable will -not assume and should not be exposed to the -business and operational risks associated with -Your business. You acknowledge that Your use of -the Plugins and Subscriptions is only a portion -of Your overall security solution and that -Tenable is not responsible for Your overall -security solution. As between You and Tenable, -You are (and Tenable is not) responsible for the -success or failure of such security solution. -Accordingly, You agree that you will, at your -expense, indemnify, defend and hold Tenable -harmless in all claims and actions that seek -compensation of any kind for injury or death to -persons and/or for damage to property, and that -arise out of or relate to Your security solutions -or Your use of the Plugins and Subscriptions, or -the solutions You provide to a third party -through Your use of the Plugins and -Subscriptions. You also agree to pay all -settlements, costs, damages, legal fees and -expenses finally awarded in all such claims and -actions. - -13) Your Payment Obligations. -If You obtain a Direct Feed Subscription, You -agree to pay any and all amounts due or incurred -by You as specified in the invoice provided by -Tenable in consideration for Your obtaining such -Direct Feed Subscription (the "Fees"). Payment -is due within thirty (30) days of the date of -invoice. You agree to pay directly or reimburse -Tenable for any taxes (including, sales or excise -taxes, value added taxes, landing fees, import -duties and the like), however designated and -whether foreign or domestic, arising out of this -Agreement, imposed on the Plugins or the use -thereof, or Tenable's performance under this -Agreement. You agree to pay Tenable's invoices -without deducting any present or future taxes, -withholdings or other charges except those -deductions it is legally required to make. If -You are legally required to make any deductions, -You agree to pay Tenable such amounts as are -necessary to make the net amounts remaining after -such deductions equal to the stated amount due -under this Agreement. The payments or -reimbursements will be in such amounts as are -sufficient to relieve Tenable from owing any -further taxes, either directly or on the basis of -the payments made under this Agreement. -Notwithstanding the foregoing, Tenable will be -solely responsible for its income tax obligations -and all employer reporting and payment -obligations with respect to its personnel. You -agree to pay any interest and penalties imposed -by any taxing authorities to the extent such -interest and penalties are applicable to taxes -not paid at Your request or as a result of -reliance by Tenable on Your representations. If -a certificate of exemption or similar document or -proceeding is necessary in order to exempt any -transaction from a tax, You will obtain such -certificate or document. -14) Legal Compliance; Restricted Rights. -The Plugins and Subscriptions are provided solely -for lawful purposes and use. You are solely -responsible for, and agree to perform your -obligations in a manner that complies with all -applicable national, regional and local laws, -statutes, ordinances, regulations, codes and -other types of government authority (including -those governing export control, unfair -competition, anti-discrimination, false -advertising, privacy and data protection, and -publicity and those identifying and procuring -required permits, licenses, approvals, and other -consents) ("Laws"). If a charge is made that You -are not complying with any such Laws, You will -promptly notify Tenable of such charges in -writing. Without limiting the foregoing, You -agree to comply with all U.S. export Laws and -applicable export Laws of Your locality (if You -are not in the United States), to ensure that no -information or technical data provided pursuant -to this Subscription Agreement is exported or -re-exported directly or indirectly in violation -of Law or without first obtaining all required -authorizations or licenses. You will, at Your -sole cost and expense, obtain and maintain in -effect all permits, licenses, approvals and other -consents related to Your obligations under this -Subscription Agreement. You agree, at Your -expense, to comply with all foreign exchange and -other Laws applicable to You. The Plugins is -licensed subject to Tenable's standard commercial -agreement; Plugins licensed for use by the United -States government is provided with "Restricted -Rights" only as defined in 48 C.F.R. _52.227-14 -and 48 C.F.R. _252.227-7014 if the commercial -terms are deemed not to apply. - -15) Termination. -i) You may terminate this Subscription Agreement -at any time by destroying or returning to Tenable -the Plugins, together with all copies, -modifications and merged portions of the Plugins -in any form. -ii) This Subscription Agreement and Your License -to use the Plugins and Subscriptions shall -terminate automatically if You fail to comply -with any term or condition of this Subscription -Agreement or if the Nessus Software License -Agreement between You and Tenable terminates. -Immediately after termination of this -Subscription Agreement, You shall destroy or -return to Tenable the Plugins, together with all -copies, modifications and merged portions of the -Plugins in any form, and shall certify to Tenable -in writing that through Your best efforts and to -the best of your knowledge all such materials -have been destroyed or returned to Tenable and -removed from host computers on which Plugins -resided. - -16) Governing Law. -This Subscription Agreement shall be governed in -all respects by the laws of the State of -Maryland, USA, without regard to choice-of-law -rules or principles. You expressly agree with -Tenable that this Subscription Agreement shall -not be governed by the U.N. Convention on -Contracts for the International Sale of Goods, -the application of which is expressly excluded. - -17) Dispute Resolution. -You and Tenable submit to the exclusive -jurisdiction of the courts of Howard County, -Maryland and the United States District Court for -Maryland, Baltimore Division, for any question or -dispute arising out of or relating to this -Subscription Agreement. Due to the high costs -and time involved in commercial litigation before -a jury, the parties waive all right to a jury -trial with respect to any and all issues in any -action or proceeding arising out of or related to -this Subscription Agreement. - -18) Notices. -Any notices or other communication required or -permitted to be made or given by either Party -pursuant to this Subscription Agreement will be -in writing, in English, and will be deemed to -have been duly given when delivered if delivered -personally or sent by recognized overnight -express courier, to the address specified herein -or such other address as Tenable may specify in -writing. All notices to Tenable shall be sent to -the attention of the Legal Department (unless -otherwise specified by Tenable). -All notices shall be sent to: -Tenable Network Security -7063 Columbia Gateway Drive, Suite 100 -Columbia, MD 21046 -Attn: Legal Department - -19) Transfer and Assignment. -You may not rent, lease, lend, sublicense or -otherwise provide the Plugins to any third party. -You may not assign or otherwise transfer this -Subscription Agreement without Tenable's prior -written consent. You may use the Plugins and -Subscriptions to provide services to third -parties as expressly provided in this -Subscription Agreement. - -20) Publicity. -You will not use Tenable's company name or any -trademarks, logos, service marks or other -intellectual property, or refer to Tenable or any -of its employees, in any form of advertising, -publicity or release without the prior written -approval of Tenable, which Tenable may withhold -in its sole discretion. - -21) Language. -The language of this Subscription Agreement is -English and all notices given under this -Subscription Agreement must be in English to be -effective. No translation, if any, of this -Subscription Agreement or any notice will be of -any effect in the interpretation of this -Subscription Agreement or in determining the -intent of the parties. The parties have -expressly agreed that all invoices and related -documents be drafted in English. - -22) Third Parties. -This Subscription Agreement is not intended nor -will it be interpreted to confer any benefit, -right or privilege in any person or entity not a -party to this Subscription Agreement. Any party -who is not a party to this Subscription Agreement -has no right under any Law to enforce any term of -this Subscription Agreement. - -23) Trademarks. -Nessus is a trademark of Tenable. Tenable does -not grant to You, either expressly or by -implication, any license or permission under this -Subscription Agreement to use any of the Tenable -marks (including trademarks, service marks, trade -names, trade dress, symbols, logos, designs, -domain names, slogans and other source -identifiers) (collectively, the "Marks"). - -24) General. -This Subscription Agreement constitutes the -entire agreement between the parties, and -supersedes all other prior or contemporaneous -communications between the parties (whether -written or oral) relating to the subject matter -of this Subscription Agreement. No supplement, -modification or amendment of this Subscription -Agreement shall be binding, unless executed in -writing by a duly authorized representative of -each party to this Subscription Agreement. The -provisions of this Subscription Agreement will be -deemed severable, and the unenforceability of any -one or more provisions will not affect the -enforceability of any other provisions. In -addition, if any provision of this Subscription -Agreement, for any reason, is declared to be -unenforceable, the parties will substitute an -enforceable provision that, to the maximum extent -possible under applicable law, preserves the -original intentions and economic positions of the -parties. No failure or delay by a party in -exercising any right, power or remedy will -operate as a waiver of that right, power or -remedy, and no waiver will be effective unless it -is in writing and signed by the waiving party. -If a party waives any right, power or remedy, the -waiver will not waive any successive or other -right, power or remedy the party may have under -this Subscription Agreement. Any provision of -this Subscription Agreement that imposes or -contemplates continuing obligations on a party -will survive the expiration or termination of -this Subscription Agreement. "Including" and its -derivatives (such as "include" and "includes") -mean including without limitation; this term is -as defined, whether or not capitalized in this -Subscription Agreement. |