Fidelis Network Trial – User Agreement

Be sure (“Agreement”) prior contains and using agreement between Fidelis Product (“Customer”). By installing and using authorized and have shall constitute Definitions
“Product” means the Fidelis-provided hardware (“Hardware”) to which this document applies, together with the object copy code of Fidelis’ proprietary software, and any included third-party software, provided by Fidelis as part of the Hardware, and all software updates (collectively the “Software”), along with the accompanying Documentation. The Product to which this agreement applies may also be Fidelis’ proprietary software (and any included third party software) made available for us on a virtual hardware machine, in which case both “Product” and “Software”, as used herein, shall be deemed to be such software, and “Hardware” shall be deemed to refer to a virtual machine meeting the specifications set forth in the Documentation. Additionally the Product to which this Agreement applies may also be Fidelis’ proprietary Endpoint software along with any included third-party software which is made available for use on Customer owned endpoint devices.
“Documentation” means the user guides and manuals for installation and use of the Product regardless of format.
“Endpoint” means any device that is owned or operated by the Customer and running any Fidelis Endpoint software.
License

Subject to the terms and conditions of the Agreement, Fidelis grants Customer a non-exclusive, non-transferable, revocable license during the term of this Agreement to (a) use Products for evaluation purposes as described in this Agreement only, (b) internally use, perform, and display the software provided by Fidelis as part of Products (“Software”) for evaluation purposes; and (c) internally reproduce and use the documentation materials accompanying Products and Software (“Documentation”) in support of Customer’s evaluation of Software and Products. As used herein, “Licensed Materials” means Products, Software, and Documentation, collectively.

Limitations

Customer will not, and will not permit others to: (a) reproduce all or part of Software or Documentation; (b) duplicate, modify, alter, adapt, enhance, improve, revise, or summarize Software or any part thereof, (c) use Licensed Materials for any purpose or in any manner other than as expressly provided in this Agreement; (d) modify, translate, or create derivative works of, or decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code form or structure of, Licensed Materials, except as expressly permitted by applicable law; (e) assign, share, timeshare, sell, rent, lease, sublicense, distribute, grant a security interest in, or otherwise transfer Licensed Materials, or Customer’s limited right to use same; or (f) remove, alter, or obscure any proprietary notices or labels on Licensed Materials.

Upon reasonable advance notice, Fidelis or its licensors may take such steps as are reasonably necessary to audit Customer’s compliance with this Agreement. Customer shall provide reasonable assistance and access to information in the course of such audit, as Customer’s expense. Fidelis shall be permitted to report the audit results to its licensors as applicable in relation to use of software license by such licensors.

Responsibility for Products.

Customer acknowledges that it is a bailee of, and acquires no ownership interest in Products. Customer acknowledges that at the end of the Evaluation Period, Customer will return the Products in the same condition (subject to ordinary wear) as when delivered to Customer at the Customer’s cost via overnight courier. Customer further acknowledges 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.

Support.

During the Evaluation Period, upon request, Fidelis will provide Customer 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 term of this Agreement.

Feeds.

Fidelis may make available to Customer certain dynamic information related to security threats (“Feeds”) for use in connection with the Products. In connection with accepting Feeds Customer also acknowledges 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. The Product is configured to permit Customer to view the information that is provided.

Customer acknowledges that submissions to the Fidelis cloud-based malware detection and analysis capability (“Submissions”) will be sent to Fidelis’ for analysis and will become the property of Fidelis. Customer agrees to allow Fidelis to use and share Submissions and information about Submissions without limitation. All Submissions sent from Fidelis XPS systems will be marked as Private by default.

Ownership and Proprietary Notices.

As between Customer and Fidelis, all rights, title and interest in the Software are owned exclusively by Fidelis or its licensors. Customer shall not obtain any rights whatsoever in the Software except those limited, non-exclusive rights expressly granted under this Agreement.

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.

Customer shall not remove or alter any trademark, logo, copyright, confidentiality or other proprietary notices, legends, symbols or labels on the Software, Product or any copies thereof.

Confidentiality.

Customer acknowledges 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 Customer; (ii) information in the public domain through no wrongful act of Customer; or (iii) information Customer received from a third party who is free to disclose it. With respect to the Confidential Information, Customer hereby agrees that Customer shall at no time use such Confidential information exception 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 Customer uses in safeguarding Customer’s own confidential information, but in no event less than a reasonable standard of care. Customer shall immediately notify Fidelis of any inappropriate use or disclosure of Confidential information. Customer acknowledges 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, Customer agrees that Fidelis shall be entitled to injunctive relief to prevent any actual or threatened violation of such provisions.

Disclaimer of Warranties, Limitation of Liability.

Licensed Materials are provided “as is,” with all faults, with the entire risk of satisfactory performance with Customer and without representation or warranty of any kind, express or implied, including, but not limited to, the implied warranties of merchantability, noninfringement and fitness for a particular purpose. To the extent permitted by applicable law, Fidelis shall not be liable for any claims, losses or damages of any kind, whether direct, indirect, incidental, special or consequential, suffered by any person including Customer, arising from the use of Licensed Materials. Further, and without limitation to the foregoing, Fidelis shall not be liable for any claims, losses or damages of any kind, whether direct, indirect, incidental, special or consequential, suffered by any person including Customer, to the extent it would not have arisen but for Customer’s failure to comply with the terms of this Agreement, including but not limited to, those of Section 3 above, and Customer agrees to indemnify, defend and hold harmless Fidelis from and against any such liability. In no event shall Fidelis’s total aggregate liability arising out of or in connection with this Agreement exceed one hundred U.S. dollars (U.S. $100.00). This limitation in this Section shall not, under any circumstances, be deemed to have failed its essential purpose.

Term.

The term of this Agreement shall commence on Start Date and expire upon the earlier of: (a) End Date, (b) Customer’s return of Products to Fidelis, or (c) written notification at any time with 24 hours written notice (d) Customer’s purchase of Product(s) under a mutually acceptable purchase agreement. If Customer breaches any term of this Agreement, Fidelis may immediately terminate this Agreement effective upon written notice to Customer. Upon expiration or termination of this Agreement, the licenses granted hereunder shall terminate effective immediately and Customer shall promptly (1) discontinue use of Licensed Materials and any Fidelis Confidential Information, (2) return, at Customer’s expense, Licensed Materials and Confidential Information (including all print copies thereof) in Customer’s possession or control, (3) destroy all electronic copies of Confidential Information, and (4) certify that Customer has complied with the foregoing requirements.

Compliance with Laws.

Customer shall comply, at its sole expense, with all applicable Federal, State, and local laws, regulations and rules relating to is use of the Product, including without limitation privacy, security and employment laws. Customer agrees 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) Customer’s failure to comply with law, (ii) Customer’s breach of any individual’s right to privacy or publicity, (iii) any misuse by Customer of information collected through use of the Product, and (iv) Customer’s use or misuse of the Product.

General.

Independent Contractors.

The relationship between Fidelis and Customer 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.

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, as applicable) and continue in full force and effect.

Assignment.

Customer may not assign any of its 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.

Governing Law and Jurisdiction.

This Agreement is governed by the laws of the State of New York, 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 Uniformed Computer Information Transactions Act does not apply to this Agreement.

Waiver.

A waiver of any breach or default under this Agreement shall not constitute a waiver of any right for subsequent breach or default.

Language.

The original of this Agreement has been written in English. The parties hereto waive any statue, law, or regulation that might provide an alternative law or forum to have this Agreement written in any language other than English.

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.<

Headings.

Headings in this Agreement are included for reference only and shall not constitute a part of this Agreement for any other purpose.

Entire Agreement.

This Agreement sets forth the entire agreement and understanding between Fidelis and Customer regarding the subject matter hereof an supersedes any prior or contemporaneous representations, advertisements, statements, proposals, negotiations, discussions, understandings, or agreements regarding the same subject matter. This Agreement may not be modified or amended except by a single writing signed by both Fidelis and Customer.

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.

Export.

Customer hereby acknowledges that the Product is subject to export controls under the laws and regulations of the United States. Customer agrees to comply with all laws and regulations governing the use, export, re-export, and transfer of the Product and will obtain all U.S. and local authorizations, permits, or agreements required. Customer agrees not to distribute or supply the Product or any part thereof or any direct product thereof to any person or entity if Customer has reason to believe that such person or entity intends to export, re-export, or otherwise take the same to, or use the same in, prohibited or embargoed countries. Customer shall obtain, at its own expense, any non-United States government consents, authorizations, approvals, filings, registrations, permit or licenses required for Customer to exercise its rights and to discharge its obligations under this Agreement. Customer shall indemnify, defend and hold harmless Fidelis from any and all damages, costs, and expenses, including reasonable attorneys’ fees, resulting to Fidelis from Customer’s failure to comply with the foregoing.