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IMUNIFY360 / IMUNIFY AV / IMUNIFY QUICKPATCH LICENSE AGREEMENT
READ THIS LICENSE AGREEMENT BEFORE INSTALLING THESE PROGRAMS. THIS LICENSE
AGREEMENT IS A LEGAL CONTRACT BETWEEN YOU AND CLOUD LINUX INC. ("CLOUD LINUX")
GOVERNING YOUR USE OF ANY CLOUD LINUX PROGRAMS DOWNLOADED, INSTALLED OR USED BY
YOU (THE "PROGRAMS"). CLOUD LINUX IS UNWILLING TO LICENSE THE PROGRAMS EXCEPT
ON THE TERMS CONTAINED IN THIS LICENSE AGREEMENT. THE ACT OF DOWNLOADING,
INSTALLING OR USING THE PROGRAMS SHALL CONSTITUTE AN ACCEPTANCE BY YOU OF
THE TERMS OF THIS LICENSE AGREEMENT. IF YOU DO NOT WISH TO AGREE TO THE TERMS
OF THIS LICENSE AGREEMENT, PROMPTLY EXIT THE INSTALLATION NOW AND REMOVE IT
FROM YOUR SYSTEM.
THIS LICENSE AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF CLOUD
LINUX'S OBLIGATIONS AND RESPONSIBILITIES TO YOU AS LICENSEE, AND SUPERSEDES
ANY OTHER PROPOSAL, REPRESENTATION, OR OTHER COMMUNICATION BY OR ON BEHALF
OF CLOUD LINUX RELATING TO THE SUBJECT.
1. GRANT OF LICENSE. Cloud Linux hereby grants to you, and you accept,
a limited, nonexclusive license to use the Programs in machine-readable,
object code form only, and the user manuals accompanying the Programs (the
"Documentation"), only as authorized in this Agreement. For purposes of this
Agreement, the "Programs" include any updates, enhancements, modifications,
revisions, or additions to the Programs made by Cloud Linux and made available
to end-users. Notwithstanding the foregoing, Cloud Linux shall be under no
obligation to provide any updates, enhancements, modifications, revisions,
or additions to the Programs. You may use one copy of the Programs only on
systems, including servers, work stations, virtual machines, blades, nodes
or disk partitions, for which you have purchased Subscription Services from
Cloud Linux or its resellers. For purposes of this Agreement, "use" of the
Programs means loading the Programs into the temporary or permanent memory
of a computer. Installation of the Programs on a network server solely for
distribution to other computers is not "use" of the Programs, and is permitted,
as long as you have purchased Subscription Services for the systems being
accessed by the Programs. Your installation or use of the Programs grants
Cloud Linux limited access to your system information for the sole purpose
of security analysis and reporting. Such access and information collected
includes reviewing installed packages and applications, the names, sizes,
and attributes of files, source and destination IP addresses, target ports,
security rule IDs triggered, domains on the server, headers, URIs and hashes of
URIs, http post data, the server or system uptime, load, and running processes
(the 'SysInfo'). Cloud Linux's use of SysInfo, including usage for providing
improved security, may include steps to anonymize or pseudo anonymize any
personal data (including IP address). Cloud Linux may implement strategies,
in its sole determination, to adhere to any personal information laws or rules.
Cloud Linux will provide You the ability to opt out of Cloud Linux collecting
certain SysInfo. However, a decision to opt-out may impact your ability to
obtain all of the benefits of those users who opt-in to sharing the SysInfo
with Cloud Linux.
Cloud Linux may collect email addresses and names of server administrators
for the sole purpose of notifying server administrators regarding security
incidents, misconfigurations and updated features related to those servers
2. PROTECTION OF PROPRIETARY RIGHTS; CONFIDENTIALITY. You acknowledge that
the Programs and each of their components are owned by Cloud Linux and others,
and are protected under copyright law and other laws as applicable. Title to
the Programs, or to any copy, modification, or merged portion thereof shall
remain with their respective owners, subject to the applicable license. You
may commercially redistribute the Programs only if, you have entered into a
separate agreement with Cloud Linux authorizing such commercial redistribution
or Cloud Linux has otherwise granted you permission, in writing. You agree
not to remove any confidential or proprietary legends from the Programs.
You acknowledge that, in the event of your breach of any of the provisions
of this Section 2, Cloud Linux will not have an adequate remedy in money
or damages. Cloud Linux shall therefore be entitled to obtain an injunction
against such breach from any court of competent jurisdiction immediately upon
request. Cloud Linux's right to obtain injunctive relief shall not limit its
right to seek further remedies. This Section 2 shall survive termination for
any reason. Your obligations hereunder shall remain in effect for as long
as you continue to possess or use the Programs, or any proprietary interests
therein. You further agree not to, and you will not permit others to, (a)
license, sell, rent, lease, assign, distribute, transmit, host, outsource,
disclose or otherwise commercially exploit the Programs, (b) copy or use the
Programs for any purpose other than as permitted in this License Agreement,
(c) remove or alter any trademark, logo, copyright or, patent marking(s),
other proprietary notices, legends, symbols or labels in the Programs, or
(d) modify, make derivative works of, disassemble, reverse compile or reverse
engineer any part of the Programs, including, but not limited to, its license
keys, to the fullest extent of the law. All Programs are and remain the
confidential information of, and a trade secret of, Cloud Linux. The Programs
does not include any rights to the underlying source code of the Programs,
but only a right to use the object/binary code as set forth and restricted
herein. You shall not rent, sell, lease, license, sublicense, assign, transfer,
publish, disclose, distribute, display, or transcribe in any fashion any of
the Programs to others or for any use other than as provided by this EULA,
and any such attempted rental, selling, leasing, licensing, sublicensing,
assignment, transfer, publishing, disclosure, distribution, display or
transcription shall be null and void. “Confidential Information” shall
mean the Programs, any intellectual property of Cloud Linux or any other
information that characterizes as confidential at the time of its disclosure
either in writing or orally, except for information which you can demonstrate:
(a) is previously rightfully known to you without restriction on disclosure;
or (b) is or becomes, from no act or failure to act on your part, generally
known in the relevant industry or public domain. You shall use your best
efforts to preserve and protect the confidentiality of the Confidential
Information at all times, both during the term hereof and for a period of at
least 3 years after termination of this License Agreement, provided, however,
that any source code or trade secrets you receive shall be held in confidence
in perpetuity. You shall not disclose, disseminate or otherwise publish
or communicate Confidential Information to any person, firm, corporation or
other third party without the prior written consent of Cloud Linux. You shall
not use any Confidential Information other than in the as expressly required
to use the Programs in accordance with its standard use and in accordance
with all Product Information. You are required to notify Cloud Linux in
writing immediately upon discovery of any unauthorized use or disclosure of
Confidential Information or any other breach of this License Agreement, and
to cooperate with Cloud Linux in every reasonable way to regain possession of
Confidential Information and prevent any further unauthorized use. If you are
legally compelled to disclose any of the Confidential Information, then, prior
to such disclosure, you will (i) immediately notify Cloud Linux prior to such
disclosure to allow Cloud Linux an opportunity to contest the disclosure, (ii)
assert the privileged and confidential nature of the Confidential Information,
and (iii) cooperate fully with Cloud Linux in protecting against any such
disclosure and/or obtaining a protective order narrowing the scope of such
disclosure and/or use of the Confidential Information. In the event such
protection is not obtained, you shall disclose the Confidential Information
only to the extent necessary to comply with the applicable legal requirements.
3. LIMITED WARRANTY; EXCLUSIVE REMEDIES. Limited Warranty: Cloud Linux
warrants that (i) the media on which the Programs are furnished will be free
from defects in materials and manufacture under normal use of a period of
30 days from the date of delivery to you; and (ii) Cloud Linux is the owner
or authorized licensee of the Programs, or has the rights to license the
Programs to you. No person other than Cloud Linux, in writing, is authorized
to make any representation or warranty to you regarding the Programs.
Exclusive Remedy: In the event of a breach of the limited warranty above,
your exclusive remedy relative to the Programs shall be for Cloud Linux,
at Cloud Linux’s option, to either: (i) replace the Programs that does not
meet the limited warranty; or (ii) refund to you the Programs license fees
(and no other fees) paid by you, during the 12 month period immediately
preceding the breach of the limited warranty, for the Programs which fails
to comply with the limited warranties.
4. DISCLAIMER; LIMITATION ON LIABILITY Disclaimer: THE LIMITED WARRANTY
ABOVE IS THE SOLE WARRANTY MADE BY CLOUD LINUX. CLOUD LINUX MAKES NO OTHER
WARRANTY OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED. ANY AND ALL WARRANTIES
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT
ARE EXPRESSLY DISCLAIMED AND EXCLUDED BY CLOUD LINUX. Limitation on
Consequential Damages: IN NO EVENT SHALL CLOUD LINUX BE LIABLE TO YOU, AS
LICENSEE, OR ANY OTHER PERSON FOR ANY INDIRECT, CONSEQUENTIAL OR INCIDENTAL
DAMAGES (INCLUDING DAMAGES FOR BUSINESS PROFITS, BUSINESS INTERRUPTION,
LOSS OF BUSINESS INFORMATION OR SIMILAR LOSSES) EVEN IF CLOUD LINUX HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CLOUD LINUX SHALL HAVE
NO LIABILITY OF ANY KIND RELATED TO YOUR DATA, INCLUDING, BUT NOT LIMITED
TO, THE LOSS OR DAMAGE THEREOF. Limitation on Liability: THE CUMULATIVE
LIABILITY OF CLOUD LINUX TO YOU FOR ALL CLAIMS RELATED TO THE PROGRAMS AND THIS
LICENSE AGREEMENT, INCLUDING ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT,
OR STRICT LIABILITY SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL LICENSE FEES
(AND NO OTHER FEES) PAID TO CLOUD LINUX FOR THE PROGRAMS DURING THE TWELVE
(12) MONTH PERIOD IMMEDIATELY PRECEDING THE INITIAL EVENT GIVING RISE TO
THE CLAIM. All limitations on liability, damages and claims are intended to
apply without regard to whether other provisions of this License Agreement
have been breached or have proven ineffective.
5. TERMINATION. The license granted herein is effective until terminated. The
license will automatically terminate, without notice, if you fail to comply
with any provision of this License Agreement. Upon termination of this License
Agreement, all rights granted to you pursuant to this License Agreement will
terminate and revert to Cloud Linux. This license may be terminated at any
time, for any reason, by Cloud Linux. Cloud Linux’s maximum liability for
any such termination is to refund to you any prepaid fees.
6. PERSONAL INFORMATION CONTROL. You agree to comply with all applicable laws,
regulations, rulings and orders of the EU, US and other countries (including
but not limited to the EU’s GDPR) in which you have operations relating
to the protection, use, and distribution of personal information of your
users or visitors on any devices which have the Program installed or stored.
Further, you shall indemnify Cloud Linux for any and all claims resulting
from your violation of any such laws, regulations, rulings, or orders.
7. EXPORT CONTROL. You agree to comply with all applicable laws, regulations,
rulings and executive orders of the United States relating to the exportation
or importation of any copies of the Programs (including but not limited to
the export and destination control regulations of the Commerce and Treasury
Department) and with all applicable foreign laws relating to the use,
importation, licensing or distribution of copies of the Programs. You
acknowledge that Cloud Linux is subject to economic sanctions laws (“Economic
Sanctions Laws”), including but not limited to those enforced by the
U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”),
the European Union, and the United Kingdom. Accordingly, You shall comply with
all Economic Sanctions Laws, including, but not limited to, those of the United
States, the European Union, and the United Kingdom. You shall not provide
access to the Cloud Linux Products to any individuals identified on OFAC’s list
of Specially Designated Nationals (“SDN List”), the UK’s HM Treasury’s
Consolidated List of Sanctions Targets, or the EU’s Consolidated List of
Persons, Groups, and Entities Subject to EU Financial Sanctions (collectively
“Sanctioned Parties”). You shall not take any action which would place Cloud
Linux in a position of non-compliance with any such Economic Sanctions
Laws. Furthermore, You represent and warrants that (i) you have not in the past
been, and will not be in the future, be connected with any Sanctioned Parties,
(ii) shall provide such information regarding any individual or entity which
you do business within any location covered by Economic Sanction Laws upon
request of Cloud Linux, and (iii) shall promptly advise Cloud Linux of any
activities which increases the risk of your’s non-compliance with this Section
7 or Cloud Linux’ compliance with Economic Sanctions Laws. You agree to
indemnify and hold Cloud Linux harmless from any loss, damages, liability or
expenses incurred by Cloud Linux as a result of your failure to comply with any
export regulations or restrictions or otherwise fails to comply with this
Section 7.
8. GENERAL. This License Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware and the United States,
without regard to any conflict of laws provisions. The rights and obligations
of the parties to this License Agreement shall not be governed by the United
Nations Convention on the International Sale of Goods. No modification of
this License Agreement shall be binding unless it is in writing and is signed
by an authorized representative of the party against whom enforcement of the
modification is sought; or in the event of Cloud Linux updating this License
Agreement; you agreeing to the modified terms through use of a click through
process. Any notices required or permitted under this License Agreement shall
be in writing and delivered in person or sent by registered or certified mail,
return receipt requested, with proper postage affixed. In the event that
any term of this License Agreement is or becomes or is declared to be invalid
or void by any court or tribunal of competent jurisdiction, such term shall
be null and void and shall be deemed severed from this License Agreement,
and all the remaining terms of this License Agreement shall remain in full
force and effect.
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