IMPORTANT – READ CAREFULLY.
CyberSafe Limited a company incorporated in England and Wales (registration number 03245350)(“CyberSafe”) and located in England, or its licensors, own the intellectual property rights in the Software and Documentation (as defined below) (“Product”). It is unlawful to load, install or copy this software onto a Computer, or use the Documentation, without accepting this license. CyberSafe is willing to license this Product to You only on condition that You accept all the terms and conditions contained in this license agreement.
How to Accept or Reject the License Terms
This license agreement is shown: 1) on the CyberSafe website, whilst downloading the Product, and requires acceptance before the download will start; 2) whilst you are installing the Product, and will require acceptance before the installation will continue; and 3) after the Product has been installed, in a file (with file name starting with “LICENSE-AGREEMENT” followed by the Product name and version details) installed onto the Computer. In all cases, you have the option to accept or reject the terms, using the procedure explained below:
To Accept:
If You are reading this agreement on the CyberSafe website, You will find a button at the bottom of the page, clearly labelled with “I accept the terms in the license agreement”, which You should press to indicate Your acceptance of the terms.
If this agreement is displayed whilst You are installing the Product, You will be given an option to accept the terms, or You will be asked if You accept, before the installation will continue.
If You are reading this agreement from the file stored onto a Computer, You do not need to take any specific action to accept the terms.
By accepting the terms in the agreement, or by downloading the Product, or by installing and/or using the Product after it is downloaded, You indicate acceptance of this license and the limited warranty and limitation of liability set out in this license. You are (i) representing that You are not a minor and have full legal capacity and have the authority to bind yourself and if applicable, Your employer, to the terms of this agreement; and (ii) consenting on behalf of Yourself and/or as an authorised representative of Your employer. If you are not so authorised, nor deemed in law to have such authority, You assume sole personal liability for the obligations set out in this license. You should therefore read this license carefully before accepting the license terms, downloading, installing and/or using the Product.
To Reject:
If you are reading this agreement on the CyberSafe website, please close this web page and do not download, install and/or use the Product.
If this agreement is displayed whilst You are installing the Product, You will be given an option to “not accept” the terms, and the attempt to install the Product will then be automatically cancelled.
If You are reading this license agreement from the file installed onto a Computer, you should not use the Product that is already installed, and you should immediately uninstall it.
In any case, You should destroy any unlicensed copies of the Product which might be in Your possession and/or control. If you have purchased the Product and do not agree with these license terms You should within 30 days of such purchase, return the Product to CyberSafe or Your supplier with proof of purchase for a full refund of license fees and, if applicable any maintenance and support fees.
Definitions, Software Permissions and Restrictions
“Computer” means an electronic programmable device for the storage and processing of information;
“Documentation” means the relevant Installation, Configuration, and/or User Guides for the Software, usually provided in PDF or printed form;
“Order Document” means the order documentation, including a Licensee purchase order, in a format acceptable to CyberSafe, under which the Software was ordered;
“Software” means the relevant version of the CyberSafe software program for which You have paid the license fees or which You are evaluating in accordance with Section 14 below;
“You“, “Your” or “Yourself” means the entity licensing the Software as set out in the Order Document;
“Use” means the installation of the Software in conformity with this Agreement and the relevant Documentation.
This Agreement is between You (either an individual or single entity) (“Licensee“) and CyberSafe, and applies to the object code copy of the Software (which may contain client, server and toolkit components) and any other subsequent CyberSafe Software or update thereof, unless such Software or update is expressly governed by a separate software license agreement signed by You and CyberSafe.
1. License
Subject to the terms of this Agreement and payment of all fees, if relevant, CyberSafe grants Licensee a non-sub-licensable, non-transferable, non-exclusive, right to install, load, utilise, store and display the Product in accordance with CyberSafe’s Documentation for such Product up to the maximum licensed number of copies, solely on the Platform and/or Operating System indicated in the Documentation and set out in a relevant Order Document solely for internal business purposes at the designated location. Licensee may only make one copy of the Product for back up purposes only, except as otherwise indicated below for Redistributable Software. Each person that uses or accesses the Software shall be deemed a “User”.
If a Product is identified on the CyberSafe price list as a “tool kit”, then CyberSafe grants Licensee the right to reproduce and distribute, in unmodified object code form only, the portion of the “libraries” (or any subset thereof) expressly designated in the end-user Documentation for such tool kit as redistributable (the “Redistributable Software“), but only in conjunction with and as a part of a software application developed by Licensee using such tool kit which adds significant, substantial and primary functionality to the libraries (the bundled Redistributable Software and Licensee software application are hereinafter referred to as the “User Application“) and only to that number of end users of such User Application equal to the Maximum Licensed Users for any CyberSafe Client or Run Time Library Product purchased by Licensee.
Licensee agrees that any other use or distribution of the Redistributable Software is subject to Licensee entering into a separate software license agreement with terms and conditions governing such use or redistribution. Licensee may not distribute any portion of any Product, which is not designated as Redistributable Software.
2. License Restrictions
Licensee will not, and will not instruct or allow any third party to: (i) decompile, disassemble, or otherwise reverse engineer the Software (except and only to the extent that applicable statutory laws prohibit certain reverse engineering restrictions) or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Software by any means whatsoever (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions); (ii) distribute, sell, sublicense, rent, lease or use the Software (or any portion thereof) for time sharing, hosting, service provider or other computer services to third parties or otherwise make the functionality of the Software available to third parties; (iii) remove or in any manner alter any product identification, proprietary, trademark, copyright or other notices contained in the Software; (iv) modify any part of the Software, create a derivative work of any part of the Software or incorporate the Software into other software, except to the extent expressly authorised in this Agreement or by CyberSafe in writing; (v) publicly disseminate performance information or analysis (including, without limitation, benchmarks and performance tests) from any source relating to the Software; (vi) use or copy the Software, in whole or in part, except as expressly allowed under the License Section.
3. Proprietary Rights
As between the parties, CyberSafe and/or its third party licensors, retain all right, title and interest, including but not limited to all rights of copyright, trademark, trade secret, patent, or other intellectual property right, in the Product and copies thereof. Licensee agrees not to remove, destroy or alter any proprietary notices contained in or on the master copy of the Product, and to reproduce such notices exactly in or on each copy of the Product generated, including any copyright, trademark or patent notices.
If Licensee uses or distributes the Redistributable Software, Licensee agrees to: (i) not modify or alter the Redistributable Software in any way; (ii) distribute the Redistributable Software in object code only; (iii) not use CyberSafe’s name, logo, trademarks, or other designations of goodwill to market any User Application; (iv) indemnify, hold harmless, and defend CyberSafe from and against any claims or lawsuits, including attorneys’ fees, that arise or result from the use or distribution of any User Application; (v) not permit further distribution of the Redistributable Software (except as incorporated into any User Application) by any end user of such User Application or other party; and (vi) not incorporate the Redistributable Software in any User Application which is a design tool or other application which provides substantially similar functionality as the Product.
4. Fees and Payment
Save where the Product is subject to evaluation in accordance with Section 14 herein, Licensee shall pay CyberSafe the license fee as set forth in CyberSafe’s price list or as otherwise agreed to by the parties for the number of licensed copies. All payments made to CyberSafe shall be made within thirty (30) days of CyberSafe invoice date, or according to other payment terms, that may have been agreed in writing. Any payments not made to CyberSafe by the date due will bear a late payment fee of 1.5% per month, or, if lower, the maximum rate allowed by law. In addition, Licensee will pay all freight, taxes (excluding those based upon CyberSafe’s UK income), duties, withholdings and the like.
5. Term/Termination
This Agreement shall be in effect until terminated in accordance with this Section. This Agreement and all licenses may be terminated by CyberSafe: i) immediately upon serving written notice to Licensee for a breach of Section 1, 2, 3 or 14 of this license; and/or ii) in the event of a material or persistent breach by Licensee, where such breach is capable of being cured, remains uncured for fourteen (14) days from the date of notice of such breach. On payment of all fees, Licensee may terminate this Agreement upon written notice to CyberSafe. Upon termination of this License for any reason, Licensee shall immediately cease all use of all relevant Product and return or destroy (at CyberSafe’s option) all copies of such Product and certify in writing to CyberSafe such destruction. Except as otherwise expressly provided herein, the terms and conditions of this Agreement shall survive termination. Save as where otherwise indicated, termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, in equity or otherwise.
If You are using the Product for an Evaluation, or Proof of Concept, this license will terminate on the date specified in the license key file provided to You, unless otherwise renewed by CyberSafe (by providing you with an new license key file) or terminated earlier in accordance with provisions of this Agreement.
6. Limited Warranty, Exclusion and Disclaimer
CyberSafe warrants to Licensee that for a period of ninety (90) days from delivery (by download or otherwise) of the Software (the “Warranty Period”) the Software will operate substantially in accordance with the Documentation. CyberSafe does not warrant that the functions of the Software will meet Licensee requirements or that operation of the Software will be uninterrupted or error free. Licensee must inform CyberSafe in writing during the Warranty Period if the Software does not operate as warranted and provide to CyberSafe such information and materials as CyberSafe may reasonably request to document and reproduce such problem and to verify whether any proposed solution corrects such problem. Following the receipt of such information and materials, if CyberSafe determines, in its sole discretion, that the Software does not operate as warranted, then CyberSafe will at its election, either: (a) modify the Software so that it operates as warranted; (b) replace the Software with other software offering substantially similar functionality; or, (c) if neither (a) nor (b) is commercially feasible, refund the license fee paid to CyberSafe and any applicable maintenance fees for the Software.
Exclusion: CyberSafe shall have no responsibility, warranty or other obligations whatsoever if Licensee (or any third party acting on their behalf) uses the Software: (a) in a manner inconsistent with the Documentation or this Agreement; or (b) modifies the Software; or (c) cause a failure of the Software through accident, abuse or misapplication.
NO OTHER WARRANTIES: TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, THE WARRANTIES AND REMEDIES PROVIDED IN THE LIMITED WARRANTY SECTION ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OF INFORMATION GENERATED, SATISFACTORY QUALITY, AND NON-INFRINGEMENT, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. THESE DISCLAIMERS OF WARRANTY CONSTITUTE AN ESSENTIAL PART OF THIS AGREEMENT.
7. Intellectual Property Indemnity
Subject to the Limitations Section set forth below, CyberSafe will defend, at its own expense, any claim, suit or proceeding brought against Licensee to the extent it is based upon a claim that the Software (“Indemnified Product”) obtained pursuant to this Agreement infringes upon any patent, or copyright, or misappropriates a trade secret of any third party (“Claim”). Licensee shall: (a) promptly notify CyberSafe in writing of any such Claim; (b) give CyberSafe full information and assistance in connection therewith; and (c) give CyberSafe the sole right to control the defence of any such Claim and the sole right to settle or compromise any such Claim. CyberSafe shall pay all damages, costs, and expenses finally awarded to third parties against Licensee in such action by a court of competent authority or agreed to in settlement by CyberSafe. If the Indemnified Product is, or in CyberSafe’s reasonable opinion might be, held to infringe or misappropriate as set forth above, CyberSafe may, at its option and expense replace or modify such Indemnified Product with a program substantially similar in functionality so as to avoid infringement or misappropriation, or procure the right for Licensee to continue the use of such Indemnified Product. If neither of such alternatives is, in CyberSafe’s opinion, commercially reasonable, such Indemnified Product shall be returned to CyberSafe, and CyberSafe shall refund the license fees paid by Licensee to CyberSafe for such Indemnified Product, as limited by the next sentence. The refund for a perpetual Software license shall be based on five year straight line depreciation. TO THE FULL EXTENT PERMITTED BY LAW, THE FOREGOING STATES THE ENTIRE LIABILITY OF CYBERSAFE TO LICENSEE CONCERNING INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS, INCLUDING BUT NOT LIMITED TO PATENT, COPYRIGHT, TRADEMARK, AND TRADE SECRET RIGHTS, AND IS IN LIEU OF AND REPLACES ANY AND ALL OTHER EXPRESS, IMPLIED OR STATUTORY WARRANTIES OR CONDITIONS REGARDING INFRINGEMENT OR MISAPPROPRIATION.
Limitations: CyberSafe shall have no liability for, and no obligation to defend Licensee against any claim of infringement to the extent such claim is based on: (a) use of an Indemnified Product outside the scope of this Agreement; (b) use of a superseded or altered release of an Indemnified Product; (c) the combination, operation, or use of an Indemnified Product with software, hardware or other materials not specified in the Documentation; (d) any modification of the Indemnified Product not made or authorised in writing by CyberSafe; or (e) Licensee’s use of the Indemnified Product after CyberSafe’s notice to Licensee stating that it shall cease use of the Indemnified Product due to such Claim. The above exclusions apply to the extent that the infringement would have been avoided but for such improper use.
In the event of an infringement suit or action against CyberSafe that is based on any use or modification of the Indemnified Product by Licensee that is described in whole or part in any of the exceptions to CyberSafe’s indemnity as set forth above, Licensee will defend, hold harmless and indemnify CyberSafe from and against any such action or claim, and will pay all damages, costs, liabilities and losses incurred by CyberSafe.
8. Limitation of Liability
Neither Licensee nor CyberSafe (nor any of CyberSafe’s licensors) shall be liable for any loss of use, lost data, failure of security mechanisms, interruption of business or any indirect, special, incidental or consequential damages of any kind (including damages and lost profits), regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise, even if informed of the possibility of such damages in advance. This Section shall not apply to Licensee with respect to any claims arising under Section 2 (Restrictions), 3 (Proprietary Rights), or Section 9 (Confidential Information and Export) or Section 15 (Bribery Act).
Notwithstanding any other provision of this Agreement, Licensee’s or CyberSafe’s (and its licensors) entire liability to the other in connection with or relating to this Agreement, whether in contract, tort or otherwise, shall not exceed the amounts actually paid or payable by Licensee to CyberSafe under this Agreement. This Section shall not apply to Licensee with respect to any claims arising under Section 2 (Restrictions), 3 (Proprietary Rights), Section 9 (Confidential Information and Export) or Section 15 (Bribery Act).
Neither party excludes or limits liability to the other party for death or personal injury caused by its negligence.
The parties agree that the limitations specified in this Section 8 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose. The parties acknowledge and agree that CyberSafe has set its prices and entered into this Agreement in reliance upon the limitations of liability specified herein, which allocate the risk between Licensee and CyberSafe and form a basis of the bargain between the parties.
9. Confidentiality and Export
Licensee acknowledges and agree: i) the Product contain valuable proprietary information and trade secrets of CyberSafe and Licensee shall protect the secrecy of, and avoid disclosure and unauthorised use of the Product, using at least those measures that Licensee takes to protect their own confidential information, but in no event shall such measures be less than reasonable; and ii) that they shall comply with all applicable export control laws and regulations with respect to the Product.
Export: Licensee acknowledges that the Software contains encryption technology that is subject to export restrictions applied by the Export Control Organisation (ECO) on behalf of the Government of the United Kingdom (“U.K.”) and import restrictions by certain foreign Governments. Licensee will not and will not allow any third party to remove or export from the U.K. or allow the export or re-export of any part of the Software or any direct product thereof: (i) into any country that the U.K. Government or any agency thereof restricts export or re-export to such countries; or (ii) into any country to which such export or re-export is restricted or prohibited, or as to which the U.K. Government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (iii) otherwise in violation of any export or import restrictions, laws or regulations of any foreign Government, agency or authority. Licensee agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any prohibited country or on any prohibited party list. After CyberSafe has shipped (exported) the Software to Licensee, it is the responsibility of Licensee to comply with the Cryptographic Software Export Regulations of the Government in the country which the Software was exported to by CyberSafe.
Licensee confirms that all of the following conditions apply:
a) The software being downloaded using this page on the CyberSafe website is for use be Licensee only (unless Licensee is a CyberSafe reseller), in the country of Licensee, and will not be re-exported.
b) The software will not be used for purposes associated with chemical, biological or nuclear weapons or missiles capable of delivering such weapons, nor will it be resold (if Licensee is a CyberSafe reseller) if Licensee knows or suspects they are intended or likely to be used for such purpose.
c) The software will not be re-exported or otherwise re-sold or transferred to a destination subject to UN, EU or OSCE embargo where that act would be in breach of the terms of that embargo. An up-to-date list of applicable destinations subject to arms embargoes can be found on the export control pages of the Businesslink website listed under the link to “Current Export Restrictions”.
d) Licensee confirms that the software, will not be used in any nuclear explosive activity or unsafe guarded nuclear fuel cycle.
10. Audits
Licensee shall keep complete and accurate records indicating the Product, the number of copies used, and the exact locations of each copy of each Product. CyberSafe and its authorised representatives shall have the right to audit Licensee a maximum of once a year to determine whether Licensee is using the Product in accordance with the terms and conditions of this Agreement. Licensee agrees to cooperate in any such audit, provided it is conducted during Licensee’s normal business hours and CyberSafe notifies Licensee five (5) business days in advance of its desire to conduct any such audit, and to pay CyberSafe any monies that as a result of such audit are determined to be due under this Agreement, including but not limited to CyberSafe’s then-current license fee for each of the unreported or unauthorised copies.
11. Maintenance
CyberSafe agrees to provide Licensee with the level of Maintenance and Support specified and paid for by Licensee in the applicable Order(s) in accordance with Exhibit A (Maintenance and Support) a copy of which can be provided to Licensee by CyberSafe upon request.
12. Government Rights
If Licensee is a U.S. government entity, it acknowledges that the software and accompanying documentation licensed in this Agreement are “commercial items”, “commercial computer software” and “commercial computer software documentation” as defined in FAR section 2.101, and DFAR sections 252.227-7014(a)(1) and (5) respectively. Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.
13. Miscellaneous
This Agreement and the licenses granted hereunder may not be assigned by either party without the prior written consent of the other party (and any attempt to do so shall be void); provided, however, CyberSafe may assign this Agreement to any of its parent, affiliates or subsidiaries, or to an entity acquiring fifty per cent or more of its stock, assets or business.
The validity of this Agreement its interpretation, the respective rights and obligations of the parties and all other matters arising in any way out of it or its expiration or earlier termination for any reason shall be determined by the substantive law, excluding the private international law rules, of England and Wales and will be submitted to the exclusive jurisdiction of the English courts. Any violation or threatened violation of this Agreement may cause irreparable injury to CyberSafe for which CyberSafe may apply for injunctive relief, in addition to all legal remedies. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
This Agreement represents the complete agreement concerning this license, supersedes all prior agreements, and may be amended only in writing and executed by duly authorised representatives of both parties. Save in respect to quantity and price, the provisions of any order document issued by Licensee shall be of no effect (notwithstanding any provisions in such order document to the contrary). If any provision of this Agreement is held by a court of competent jurisdiction to be invalid under any applicable statute, rule or law, the parties agree that such invalidity shall not affect the validity of the remaining provisions of this Agreement, and further agree to substitute for the invalid provision a valid provision which most closely approximates the intent and economic effect of the invalid provision. Headings used in this Agreement are provided for convenience only, and shall not in any way affect the meaning or interpretation hereof. A waiver of a breach or default under this Agreement shall not be a waiver of any other breach or default. Failure of either party to enforce compliance with any term or condition of this Agreement shall not constitute a waiver of such term or condition unless accompanied by a clear written statement that such term or condition is waived. Save in respect to Licensee’s obligation to pay CyberSafe’s invoice’s as and when they fall due, neither party shall not be responsible for any failure to perform due to “force majeure” causes beyond its reasonable control including, but not limited to, acts of God, riots, embargoes, terrorist acts, acts of civil or military authorities, disruptions in the flow of data to or from networks, denial of or delays in processing of export license applications, accidents, strikes, fuel crises or power outages.
14. Evaluation of Products
If the Software is being installed for evaluation purposes (“Evaluation Product”), the Software may be installed for a period not exceeding that agreed by CyberSafe and will terminate on the date specified in the license key file provided to You by CyberSafe unless terminated earlier in accordance with provisions of this Agreement. (the “Evaluation Period”) and may only be used for non-commercial use in a non-production environment. Conditioned on Licensee’s compliance with the terms and conditions of this Agreement, CyberSafe grants to Licensee, during the Evaluation Period, a cost-free, personal, non-sub-licensable, non-transferable, non-assignable and nonexclusive, revocable license to use the Evaluation Product, solely at the designated location agreed in writing by CyberSafe and solely for Licensee’s internal evaluation of the Product. Licensee may only grant access to the Evaluation Product to employees, contractors, agents or consultants who have entered into a confidentiality agreement with Licensee no less protective of CyberSafe’s proprietary rights than this Agreement.
Upon the expiration or termination of the Evaluation Period, (i) all licenses granted hereunder for such evaluation will cease, and either (ii) Licensee will discuss licensing the Product with CyberSafe, with a view to purchasing licenses, or (iii) Licensee will immediately return the Evaluation Product to CyberSafe and destroy or erase any intangible copies of the Evaluation Product, and certify in a writing signed by an officer of Licensee and delivered to CyberSafe that all such copies of have been returned, destroyed or erased.
Additional Evaluation Terms: Notwithstanding anything to the contrary as contained in this Agreement, Licensee acknowledges and agrees that the Evaluation Product is provided for evaluation “AS-IS” and CyberSafe its licensors and suppliers make no representations or warranties of any kind, express or implied, with respect to the Evaluation Product, including, without limitation, any implied warranties of merchantability, quality, title, fitness for a particular purpose, informational content, system integration, enjoyment, non-infringement or any other warranties arising out of course of dealing, usage or trade and CyberSafe accept no liability with respect to any use of the Evaluation Product.
15. Bribery Act
15.1 For the purpose of this Section 15 the meaning of adequate procedures and foreign public official shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act), sections 6(5) and 6(6) of that Act and section 8 of that Act respectively.
15.2 Both parties shall: i) comply with all applicable laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010; ii) not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK; iii) have and shall maintain in place throughout the term of this Agreement its own policies and procedures, including but not limited to adequate procedures under the Bribery Act 2010; iv) promptly report to the other party any request or demand for any undue financial or other advantage of any kind received in connection with the performance of this Agreement; v) warrant that they have no foreign public officials as officers, employees or direct or indirect owners at the Effective Date of this Agreement and agree to immediately notify the other party if during the validity of this Agreement a foreign public official becomes an officer or employee or acquires a direct or indirect interest.
15.3 Either party shall, upon the reasonable written request of the other party provide such supporting evidence of compliance with this Section 15 as may be reasonably required.
Revision: 1.7