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|
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.
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