Report: Digital Espionage and Innovation: Unpacking AgentTesla

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End User License Agreement

IMPORTANT

Notice to User (“Licensee”, “You” or “Your”): THIS AGREEMENT GOVERNS USE BY LICENSEES OF THE FIDELIS SOFTWARE DESCRIBED HEREIN. LICENSEE AGREES THAT THIS AGREEMENT SERVES AS ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY LICENSEE. BEFORE CLICKING ON THE “ACCEPT” BUTTON, ENTERING “YES” IN RESPONSE TO THE ELECTRONIC LICENSE ACCEPTANCE INQUIRY, INSTALLING, DOWNLOADING, COPYING, ACCESSING, OR USING THE SOFTWARE, PLEASE READ THIS END USER SOFTWARE LICENSE AGREEMENT (“AGREEMENT”). ANY OF THE AFOREMENTIONED ACTIONS OR USING THE SOFTWARE INDICATE AN ACCEPTANCE OF AND LEGALLY BINDS YOU TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON OR A COMPANY OR OTHER LEGAL ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY, OR LEGAL ENTITY TO THESE TERMS. THIS AGREEMENT IS ENFORCEABLE AGAINST ANY PERSON OR ENTITY THAT USES THE SOFTWARE AND ANY PERSON OR ENTITY (E.G., CONSULTANT OR CONTRACTOR) THAT USES THE SOFTWARE ON ANOTHER PERSON’S OR ENTITY’S BEHALF. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN CLICK THE “CANCEL” BUTTON, OR DO NOT INSTALL, DOWNLOAD, COPY, ACCESS, OR USE THE SOFTWARE AND YOU WILL NOT HAVE ANY LICENSE TO ANY PART OF THE SOFTWARE.

THIS AGREEMENT SHALL APPLY ONLY TO THE PRODUCT TO WHICH LICENSEE HAS OBTAINED A VALID LICENSE REGARDLESS OF WHETHER OTHER PRODUCT IS REFERRED TO OR DESCRIBED HEREIN.

I. DEFINITIONS

  1. “Product” means the Fidelis-provided Hardware, if any, along with the Software and the corresponding Documentation.
  2. “Software” means Fidelis’ software licensed to you subject to the terms and conditions contained herein and also includes any modifications, Updates, or upgrades to it. It also includes all third-party software provided by Fidelis.
  3. “Hardware” means the physical or virtual machine (whether provided by You or by Fidelis) on which the Software is first installed and which meets the specifications set forth in the Documentation.
  4. “Documentation” means the user guides and manuals for installation and use of the Product regardless of format.
  5. “Endpoint” means any computer, phone, or device that is owned by you and running any Fidelis Endpoint software.
  6. “Software Update” means any error corrections, fixes, patches, new versions, new releases, modifications, functional improvements or replacement of the Software made available to You at Fidelis’ sole discretion under an active maintenance and support contract between You and Fidelis in connection with the Product.

II. LICENSE

  1. Upon payment of the applicable fees for the Product, subject to the terms and conditions of this Agreement, Fidelis grants to You a personal, non-exclusive and non-transferable license for the term agreed or as otherwise set forth in writing by Fidelis (“Agreed Order”), to use the Software and related Documentation in object code form on the Hardware, solely for Your internal business purposes.
  2. If the Product contains third party software, such software shall only be used in conjunction with the Product under the terms of this Agreement, unless third party terms have been specified on the Documentation. If there is any third party technology governing the use of third party software, such third party technology shall be used in accordance with the terms of third party license agreement.
  3. WARM SPARES: In the event that Products provided to You were identified in the Agreed Order as “warm spares” or by a similar designation, the license granted in Section II a above is further restricted by the condition that You will not use such “warm spare” except as a replacement of an identical malfunctioning Product properly licensed by You . In no event shall You use simultaneously both Products i.e. a “warm spare” and the Product that it is being replaced.
  4. LAB PRODUCTS: In the event that Products provided to You were identified in the Agreed Order as “lab product” or by a similar designation, the license granted in Section II a above is further restricted by the condition that You will not use such “lab product” except in a non-production environment for demonstration purposes only. In no event shall You use a “lab product” in a production environment of any kind.

III. LICENSE RESTRICTIONS

  1. You shall not: (i) copy all or part of the Product or use the Product (including the Documentation) except as specified in this Agreement or the relevant Documentation; (ii) modify, alter, adapt, enhance, improve, revise, correct errors in, or create derivative works of the Product or any part thereof, (iii) cause or permit the reverse engineering, de-encryption, disassembly or de-compilation of the Product or otherwise attempt to access the source code from the Software or gain access to trade secrets or confidential information of Fidelis or its licensors; (iv) remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Productor Documentation; (v) rent, lease, sell, assign, transfer, distribute or sublicense the Productor any part thereof or permit access to the Product by third parties or use the Product for service bureau or time-sharing purposes; (vi) use the Product for competitive analysis or permit publication or distribution of functionality or performance testing of the Product without express written consent of Fidelis; (vii) remove, disable, circumvent or otherwise create or implement any workaround to any technological copy protection or other security features designed to prevent unauthorized use of the Product; or (viii) other than as installed on Endpoints, any use of the Software on any third party equipment, except on virtual Hardware approved by Fidelis; (ix) permit any third party to do any of the foregoing.
  2. No Unbundling. The Product may include various applications, utilities and components, may support multiple platforms and languages or may be provided to Licensee on multiple media or in multiple copies. Licensee is not required to use all component parts of the Product or Software, but Licensee shall not unbundle the component parts of the Product. Licensee shall not unbundle or repackage the Product for distribution, transfer or other disposition.
  3. Export Rules. Licensee acknowledges that the Product is subject to the U.S. Export Administration Regulations and other export laws, restrictions, and regulations (collectively, the “Export Laws”) and that Licensee will comply with the Export Laws. Licensee will not ship, transfer, export, or reexport the Product, directly or indirectly, to: (a) any countries that are subject to US export restrictions (currently including, but not necessarily limited to, Cuba, Iran, North Korea, Sudan, and Syria) (each, an “Embargoed Country”), (b) any end user whom Licensee knows or has reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons, or rocket systems, space launch vehicles, and sounding rockets, or unmanned air vehicle systems (each, a “Prohibited Use”), or (c) any end user who has been prohibited from participating in the U.S. export transactions by any federal agency of the U.S. government (each, a “Sanctioned Party”). In addition, Licensee is responsible for complying with any local laws in its jurisdiction which may impact Licensee’s right to import, export or use the Product. Licensee represents and warrants that (i) it is not a citizen of, or located within, an Embargoed Country, (ii) it will not use the Product for a Prohibited Use, and (iii) it is not a Sanctioned Party. All rights to use the Product are granted on condition that such rights are forfeited if Licensee fails to comply with the terms of this Agreement.
  4. THE LICENSEE ACKNOWLEDGES THAT THEY UNDERSTAND THAT THE SOFTWARE IS NOT DESIGNED OR LICENSED FOR USE IN APPLICATIONS IN HAZARDOUS ENVIRONMENTS SUCH AS OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR CONTROL OR LIFE CRITICAL APPLICATIONS. FIDELIS EXPRESSLY DISCLAIMS ANY LIABILITY RESULTING FROM THE USE OF THE SOFTWARE IN ANY SUCH APPLICATIONS AND ACCEPTS NO LIABILITY IN RESPECT OF ANY ACTIONS OR CLAIMS BASED ON THE USE OF THE SOFTWARE IN ANY SUCH APPLICATIONS BY YOU. FOR THE PURPOSE OF THIS PARAGRAPH THE TERM “LIFE CRITICAL APPLICATION” MEANS AN APPLICATION IN WHICH THE FUNCTIONING OR MALFUNCTIONING OF THE SOFTWARE MAY RESULT DIRECTLY OR INDIRECTLY IN PHYSICAL INJURY OR LOSS OF HUMAN LIFE.
  5. Notwithstanding the foregoing limitations, Fidelis authorizes You to make a single archival copies of the Software and Documentation as is reasonably required solely for the internal use, provided such archival copies are not used for production purposes.
  6. Upon reasonable advance notice, Fidelis or its licensors may take such steps as are reasonably necessary to audit Your compliance with this Agreement. You shall provide reasonable assistance and access to information in the course of such audit, at Your expense. Fidelis shall be permitted to report the audit results to its licensors as applicable in relation to use of software licensed by such licensors.

IV. OWNERSHIP AND PROPRIETARY NOTICES

  1. As between Youand Fidelis, all rights, title and interest in the Product, including any and all copyrights, patent rights, trade secrets, trademarks, service marks, trade names, trade secrets, know- how and any other statutory or common law intellectual property or other proprietary rights related to the Product, including the design, manufacture, operation or service of the Product, are owned by Fidelis or its licensors. You shall obtain no rights in the Product except those limited, non- exclusive rights expressly granted under this Agreement.
  2. All third party licensors and suppliers retain all right, title and interest in third party software and all copies thereof, including all copyright and other intellectual property rights.
  3. You shall not remove or alter any trademark, logo, copyright, confidentiality or other proprietary notices, legends, symbols or labels on the Software or any copies thereof.

V. MAINTENANCE AND SUPPORT

  1. Subject to payment of additional support fees, Fidelis will provide maintenance and support for the Software as described under “Maintenance and Support Agreement” at http://www.fidelissecurity.com/contracts/maintenance_and_support_agreement.html. For avoidance of doubt, Fidelis has no liability and provides no support for Hardware.
  2. As a part of maintenance and support services, for certain Products, Fidelis may make available to You certain dynamic information related to security threats (“Feeds”) for use in connection with the Products. You will have the option to configure the Product to accept these feeds or not. In connection with accepting Feeds and except as provided in Section V(c) below. You also acknowledge that certain statistical and/or aggregate information (“Information”) related to use of the Feeds will be provided to Fidelis by the Product in an automated manner. By using the Product configured in the manner that allows delivery of Feeds, except in accordance with Section V(c) below, You acknowledges that such Information will be provided to Fidelis and consent to the same.
  3. Not withstanding the foregoing, if You purchase a “No Feedback” license or an “Air Gap” license pursuant to a valid Agreed Order, You may opt out of providing Information while accepting Feeds.
  4. You acknowledge that submissions to the Fidelis cloud-based malware detection and analysis capability (“Submissions”) will be sent to Fidelis’ malware analysis partner for analysis and will become the property of Fidelis and Fidelis’ malware analysis partner. You agree to allow Fidelis and Fidelis’ malware analysis partner to use and share Submissions and information about Submissions without limitation, except that Submissions marked as Private will not be voluntarily shared with third parties.

VI. CONFIDENTIALITY

You acknowledge that the Product and the Documentation contain proprietary and confidential information of Fidelis (“Confidential Information”). Confidential Information does not include (i) information already known to or independently developed by You; (ii) information in the public domain through no wrongful act of You; or (iii) information You received from a third party who is free to disclose it. With respect to the Confidential Information, You hereby agrees that You shall at no time use such Confidential Information except in connection with the exercise of its license rights or disclose it to any person or entity, and shall use at least the same degree of care in safeguarding the Confidential Information as You uses in safeguarding Your own confidential information, but in no event less than a reasonable standard of care. You shall immediately notify Fidelis of any inappropriate use or disclosure of Confidential Information. You acknowledge that violations of the provisions of this Section shall cause irreparable harm to Fidelis not adequately compensable by monetary damages. In addition to other relief, You agree that Fidelis shall be entitled to injunctive relief to prevent any actual or threatened violation of such provisions.

VII. TERM AND TERMINATION

This Agreement shall remain effective until the end of the term stipulated in the Agreed Order or terminated in accordance herewith. This Agreement and any rights granted to You will terminate immediately if You fail to comply with the terms of this Agreement. Upon termination or expiration of this Agreement, the licenses granted hereunder shall terminate effective immediately and You shall promptly cease all use of the Product, destroy and/or return to Fidelis all copies of the Product, return, at Your expense, any Confidential Information (including all print copies thereof) in Your possession or control, destroy all electronic copies of the Confidential Information, and certify that You has complied with the foregoing requirements.

VIII. LIMITED WARRANTY AND WARRANTY DISCLAIMERS

  1. Fidelis warrants that for a period of ninety (90) days from shipment of the Product to You, the Product will perform substantially in accordance with its applicable Documentation. This warranty does not apply if the Software has been altered, except by Fidelis, or has not been installed, operated, repaired, or maintained in accordance with instructions supplied by Fidelis. This limited warranty extends only to You as the original licensee of the Software and may be enforced solely by You.
  2. Your sole and exclusive remedy and the entire liability of Fidelis and its suppliers under this limited warranty will be, at Fidelis’ option, repair or replacement of the Product or the component thereof that is not in compliance with the warranty, or a refund of that portion of the purchase price allocable thereto by Fidelis, provided that Fidelis shall have received from You during the applicable warranty period written notice of the alleged warranty breach.
  3. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, THE PRODUCT IS PROVIDED AS IS, AND FIDELIS DISCLAIMS ALL WARRANTIES REGARDING THE PRODUCT, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TIMELINESS, ACCURACY, COMPLETENESS, RESULTS, AND IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. FIDELIS DOES NOT WARRANT THAT (I) THE PRODUCT WILL MEET YOURREQUIREMENTS, (II)THE OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED OR FREE FROM ALL DEFECTS OR ERRORS, (III) THE PRODUCT WILL WORK IN COMBINATION WITH ANY HARDWARE OR SOFTWARE PROVIDED BY THIRD PARTIES (IV) ANY ERRORS OR DEFECTS IN THE PRODUCT WILL BE CORRECTED. THERE IS NO WARRANTY AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE PRODUCT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY FIDELIS, ITS EMPLOYEES, DISTRIBUTORS OR RESELLERS SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF FIDELIS’ LIABILITY HEREUNDER. FIDELIS DOES NOT WARRANT OR GUARANTEE THE SECURITY OF YOURCOMPUTER SYSTEMS OR DATA, OR THAT YOURCOMPUTER SYSTEMS ARE IMMUNE FROM HARMFUL OR UNAUTHORIZED EXTRUSIONS, INTRUSIONS, OR ANY OTHER SECURITY EXPOSURES. FIDELIS SPECIFICALLY DISCLAIMS ANY LIABILITY WITH REGARD TO ANY ACTIONS RESULTING FROM YOUR USE OF THE SOFTWARE. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH USE OF THE SOFTWARE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM USE OF THE SOFTWARE. FIDELIS ASSUMES NO LIABILITY FOR ANY COMPUTER VIRUS OR SIMILAR CODE THAT IS DOWNLOADED TO YOUR COMPUTER AS A RESULT OF YOUR USE OF THE SOFTWARE.

FIDELIS DOES NOT CONTROL, ENDORSE OR ACCEPT RESPONSIBILITY FOR ANY MATERIALS OR SERVICES OFFERED BY OTHER THIRD PARTIES. FIDELIS MAKES NO OTHER REPRESENTATIONS OR WARRANTIES WHATSOEVER, AND SHALL NOT BE LIABLE FOR, OTHER THIRD PARTIES, THEIR MATERIALS OR SERVICES. ANY DEALINGS THAT YOU MAY HAVE WITH SUCH THIRD PARTIES ARE AT YOUR OWN RISK.

FIDELIS WILL NOT BE LIABLE FOR ANY LOSS THAT YOU MAY INCUR AS A RESULT OF A THIRD PARTY USING YOUR PASSWORD OR ACCOUNT OR ACCOUNT INFORMATION IN CONNECTION WITH THE SOFTWARE, EITHER WITH OR WITHOUT YOUR KNOWLEDGE.

THE FOREGOING EXCLUSIONS IN THIS SECTION VIII APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION.

IX. LIMITATION OF LIABILITY

  1. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL FIDELIS, ITS LICENSORS, RESELLERS OR DISTRIBUTORS BE LIABLE TO YOUOR ANY THIRD PARTY FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, MULTIPLE OR PUNITIVE DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF GOODWILL, LOST OR DAMAGED DATA, LOSS OF SOFTWARE, DOWNTIME OR COSTS OF SUBSTITUTE PRODUCTS) ARISING FROM THE LICENSE, DELIVERY AND/OR USE OF THE PRODUCT, HARDWARE AND/OR SOFTWARE OR ANY OTHER ACT OR OMISSION OF FIDELIS IN CONNECTION WITH THIS AGREEMENT REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF FIDELIS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  2. FIDELIS’ AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO THE LESSER OF EITHER FIVE HUNDRED UNITED STATES DOLLARS ($500) OR THE AGGREGATE AMOUNT PAID BY YOU FOR THE SOFTWARE IN THE TWELVE (12) MONTHS PRECEDING THE OCCURRENCE OF THE CAUSE OF ACTION.
  3. THE LIMITATIONS IN THIS SECTION SHALL APPLY EVEN IF FIDELIS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOT WITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

X. INFRINGEMENT CLAIMS

Subject to the exclusions set forth below in this Agreement, Fidelis will defend, at its expense with counsel of its choice, any third party claim, suit or proceeding (“Claim”) brought against You alleging that the Products, in the form delivered by Fidelis to You, infringe a United States copyright or trade secret of such third party and will pay directly or indemnify You for all damages and costs finally awarded against You regarding such Claim or amounts agreed to in a monetary settlement of such Claim provided in each case that You (a) notifies Fidelis promptly of the Claim; (b) cooperates fully with Fidelis in the defense of such Claim; and (c) gives Fidelis sole and exclusive control over the defense and settlement of such Claim. If Your further distribution of the Products as authorized hereunder is enjoined or if Fidelis believes it is commercially practicable to do so, Fidelis may, at its sole election and expense: (i) obtain for You the right to continue using the Products; (ii) replace the Products with non- infringing, functionally equivalent Products; (iii) modify the Products so they become non- infringing, or (iv) terminate this Agreement and all licenses granted hereunder and refund You a pro-rated portion of any prepaid license fees, amortized on a straight line basis over three years from the license purchase date. Fidelis, its resellers or distributors hold no liability hereunder with respect to any claim: (i) relating to software contained with the Product or provided by Fidelis that is proprietary to a third party, (ii) that is based upon or results from the combination of Products with equipment, devices, firmware or software not furnished by Fidelis, where the alleged infringement relates to such combination (iii) that results from any modification of Products after delivery (other than by Fidelis); (iv) attributable to changes or customizations to the Products made at Your direction, or (v) occurring after failure by You to install or have installed changes or revisions or updates in accordance with Fidelis’ instructions, where such changes or revisions would have cured the infringement. This Section states the exclusive remedy for You and liability of Fidelis, its distributors and resellers with respect to claims of infringement of any intellectual property rights.

The Licensee acknowledges and agrees that this License is applicable only to the SOFTWARE, and does not grant the Licensee the right to use any other intellectual property of any third party, other than the third party software provided by Fidelis. The Licensee acknowledges and agrees that it is solely responsible for obtaining any such rights, and that Fidelis is not granting any such rights, either implicitly or explicitly. Licensee shall indemnify and hold Fidelis and its respective successors, officers, directors, employees, and agents harmless from and against any and all actions, claims, losses, damages, liabilities, awards, costs, and expenses (including legal fees) resulting from or arising out of: (i) any breach or claimed breach of the foregoing; or (ii) the Licensee’s unauthorized use of or infringement of any patent, copyright, trademark, trade secret or other intellectual property right of any third party.

XI. COMPLIANCE WITH LAWS

You shall comply, at its sole expense, with all applicable Federal, State and local laws, regulations and rules relating to its use of the Product, including without limitation privacy, security and employment laws. Youagrees to indemnify, defend and hold harmless Fidelis and its shareholders, directors, officers, employees, legal representatives, agents and affiliated companies from and against any losses, costs, or damages (including reasonable attorneys’ fees and litigation costs) resulting from or in connection with (i) Yourfailure to comply with law, (ii) Yourbreach of any individual’s right to privacy or publicity, (iii) any misuse by Youof information collected through use of the Product, and (iv) Youruse or misuse of the Product.

XII. GENERAL

  1. Independent Contractors. The relationship between Fidelis and You established by this Agreement is that of independent contractors, and nothing contained in this Agreement shall be construed as creating a partnership, joint venture or agency relationship, or as granting a franchise.
  2. Survival. Any provision of this Agreement which contemplates performance or observance subsequent to any termination or expiration of this Agreement (in whole or in part) shall survive any termination or expiration of this Agreement (in whole or in part, as applicable) and continue in full force and effect.
  3. Assignment. You may not assign any of Your rights or obligations under this Agreement without the prior written consent of Fidelis. Fidelis may assign, delegate and/or otherwise transfer this Agreement or its rights and obligations to any person or entity. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
  4. Governing Law and Jurisdiction. This Agreement is governed by the laws of the State of Florida, without reference to its conflict of law principles and without regard to the U.N. Convention on Contracts for the International Sale of Goods. The Uniform Computer Information Transactions Act does not apply to this Agreement.
  5. Waiver. A waiver of any breach or default under this Agreement shall not constitute a waiver of any other right for subsequent breach or default.
  6. Language. The original of this Agreement has been written in English. The parties hereto waive any statute, law, or regulation that might provide an alternative law or forum or to have this Agreement written in any language other than English.
  7. Severability. The provisions of this Agreement are declared to be severable. If any provision of this Agreement is held to be excessively broad as to scope, activity, subject or otherwise so as to be unenforceable at law, such provision shall be constructed by limiting or reducing it so as to be enforceable to the maximum extent compatible with the applicable law as it shall then appear.
  8. Headings. Headings in this Agreement are included for reference only and shall not constitute a part of this Agreement for any other purpose.
  9. Government End Users. This provision applies whenever the You is the U.S. federal government. In such cases, the terms and conditions of this provision shall pertain to the Your use and disclosure of the Software and Documentation, and shall supersede any conflicting contractual terms or conditions. (i) The Software and Documentation is commercial computer software and documentation within the meaning of the applicable acquisition regulations (e.g., Federal Acquisition Regulation (“FAR”) 2.101 or Department of Defense FAR Supplement 227.7202-3). (ii) Sections II(b),VI, VII, X, XI, XII(d), and XII(l) shall not apply to the U.S. federal government, but shall continue to apply to prime contractors and subcontractors of the U.S. federal government. (iii) Disputes with the U.S. federal government shall be subject to resolution pursuant to the Contract Disputes Act of 1978, as amended. All other provisions of this Agreement remain in effect as written.
  10. Entire Agreement. This Agreement sets forth the entire agreement and understanding between Fidelis and You regarding the subject matter hereof and supersedes any prior or contemporaneous representations, advertisements, statements, proposals, negotiations, discussions, understandings, or agreements regarding the same subject matter. Youagrees that any Agreed Order submitted is for administrative purposes only and that in the event of a conflict between this Agreement supersedes all other terms and conditions, representations, discussions, undertakings, communications or advertising whether in written or oral form including any additional clip wrap agreements or purchase orders. This Agreement may not be modified or amended except in writing signed by both Fidelis and You.
  11. Third Party Beneficiary. Each of Fidelis’ licensors of third party software made available as part of the Product is a third party beneficiary of this Agreement, entitled to all rights of Fidelis hereunder.

XIII. EVALUATION PRODUCT

In the event that Products provided to You were provided free of charge as evaluation equipment, the following additional terms will apply:

  1. License. The license granted in this Agreement is a revocable license, for a term only of an evaluation period beginning on the date the Product is first accessed by You and ending 30 days thereafter (“Evaluation Period”), and the rights granted under the license are limited to the right to use the Products (including Software and Documentation) for evaluation purposes only (subject to all other terms and conditions as set forth in this Agreement).
  2. Responsibility for Products. You acknowledge that at the end of the Evaluation Period, You will return the Products in the same condition (subject to ordinary wear) as when delivered to You at the Your cost via overnight courier. You further acknowledge that it is responsible for taking such action, prior to returning Products to Fidelis, as is necessary to remove from the Products any data retained in their non-volatile storage sub-systems (hard disks). Fidelis shall have no responsibility for any data that has not been removed from the Products prior to their return to Fidelis.
  3. Support. During the Evaluation Period, upon request, Fidelis will provide You with the contact information for a Fidelis pre-sales engineer for technical support in the installation and use of the Software and the Products, and will use commercially reasonable efforts to respond to and resolve reported problems with the Software and the Products. Notwithstanding the foregoing, Fidelis will have no obligation to resolve any reported problems or bugs during the Evaluation Period.

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