This is a legal, enforceable contract between You and Vali, and (a) by executing a license agreement or other License Instrument, or (b) where no signature box is available, by clicking the “I Agree” or “Yes” button, or otherwise indicating Your consent to the License Terms electronically or by accessing, installing or using the Vali Solutions, You expressly agree to be bound by this TOU Agreement. An individual accepting the terms of this TOU Agreement on behalf of a company or other legal entity represents and warrants that he or she has the full authority to bind the company or legal entity to this agreement. If You do not have such authority, or if You do not agree to this TOU Agreement, You may not subscribe to the Solutions and may not access, install or use the Solutions.
Where no signature block is available and You consent electronically or through access, installation or use of the Solutions, Vali may amend this TOU Agreement from time to time in its sole discretion, in which case the new TOU Agreement will supersede prior versions. Your continued use of the Solutions following the posting of updated TOU Agreement means that Customer accepts and agrees to the changes.
Unless otherwise defined herein, capitalized terms will have the meaning given in the Definitions section of this TOU Agreement and such capitalized terms may be used in the singular or in the plural, as the context requires.
“Affiliate” means any entity that a party directly or indirectly controls (e.g., subsidiary) or is controlled by (e.g., parent), or with which it is under common control (e.g., sibling).
“Documentation” means the user documentation Vali provides with its Solutions.
“Endpoint” means any physical or virtual device, such as, a computer, server, laptop, desktop computer, mobile, cellular, container or virtual machine image.
“Enhancements” means any updates, patches, bug fixes and versions to the Solutions made by Vali and provided to You.
“Internal Use” means access or use solely for Your own internal information security purposes. By way of example and not limitation, Internal Use does not include access or use: (i) for the benefit of any person or entity other than You, or (ii) in any event, for the development of any product or service. Internal Use is limited to access and use by Your employees or Your Third-Party Providers for Your benefit.
“License Instrument” means a written agreement between You and Vali, or a purchase order or other ordering document accepted by Vali or a Vali-authorized reseller that defines Your license rights to the Licensed Software ordered by You and identifies the following: the products and product-related services ordered, the quantity ordered based on Vali’s applicable license metrics (e.g., number of Endpoints, size of company, etc), price and subscription/order term. A License Instrument may be for either a paid subscription or an evaluation license.
“Licensed Software” means the Vali Solution, accompanying this TOU Agreement or Vali Solution that You or a Third-Party Provider have installed on Your Endpoints, including any Enhancements thereto, and any Documentation included in, or provided for use with, such software. Software may also accompany or be accessed through Vali’s cloud offerings.
“Solution” means Vali’s platform including its malware protection, detection and remediation solutions, endpoint detection and response solutions, device discovery and control solutions, and other solutions offered by Vali over time, directly or through a Vali-authorized partner, together with the software underlying such products and services and any Enhancements.
“Third-Party Provider” means any individual or entity (other than a Vali Competitor) that: (i) has access or use of the Licensed Software either under this TOU Agreement solely on behalf of You and for Your Internal Use, or (b) under a separate valid agreement with Vali, (ii) has an agreement to provide You information security services, and (iii) is subject to confidentiality obligations covering Vali’s Confidential Information. A non-exhaustive list of examples of Third-Party Providers are managed services providers, consultants or consulting firms providing incident response services, or franchisors.
“Vali Competitor” means a person or entity in the business of developing, distributing, or commercializing Internet security products or services substantially similar to or competitive with Vali’s products or services.
2. LICENSE GRANT.
Subject to Your compliance with the terms and conditions of this TOU Agreement, Vali grants You the following rights: (i) a non-exclusive, non-transferable (except as stated otherwise in Section 14.1) license to use the Licensed Software solely for Your Internal Use up to the quantities and subject to any other restrictions specified in the applicable License Instrument; and (ii) the right to make a single uninstalled copy of the Licensed Software for archival purposes which You may use and install for disaster-recovery purposes (i.e. where the primary installation of the Licensed Software becomes unavailable for use).
Subject to Section 11, your rights to use the Licensed Software granted under this TOU Agreement shall end on the applicable end date as indicated on the applicable License Instrument and You shall cease use of the Licensed Software as of such applicable end date.
4. LICENSE RESTRICTIONS.
You may not, without Vali’s prior written consent, conduct, cause or permit the: (i) use, copying, modification, rental, lease, sublease, sublicense, or transfer of the Licensed Software except as expressly provided in this TOU Agreement; (ii) alteration or modification of the Licensed Software or the creation of any derivative works based on the Licensed Software; (iii) reverse engineering, disassembly, or decompiling of the Licensed Software (except that You may decompile the Licensed Software for the purposes of interoperability only to the extent permitted by and subject to strict compliance under applicable law); (iv) removal or alteration any notice of proprietary right appearing on the Licensed Software; (v) use of the Licensed Software in connection with service bureau, facility management, timeshare, service provider or like activity whereby You operate or use the Licensed Software for the benefit of a third party; (vi) use of the Licensed Software by any party other than You; (vii) use of a later version of the Licensed Software other than the version that accompanies this TOU Agreement unless You have separately acquired the right to use such later version through a License Instrument; nor (viii) use of the Licensed Software above the quantity and use level that have been licensed to You under this TOU Agreement or the applicable License Instrument.
Further, your rights to use the Licensed Software do not include any rights to, and you shall not: (i) employ or authorize a Vali Competitor to use the Licensed Software or the Documentation, or to provide management, hosting, or support for the Licensed Software; (ii) use the Licensed Software to circumvent the security of another party’s network/information, develop malware, unauthorized surreptitious surveillance, data modification, data exfiltration, data ransom or data destruction; (iii) conduct any stress tests, competitive benchmarking or analysis on, or publish any performance data of, the Licensed Software (provided, that this does not prevent You from comparing Licensed Software to other products for legitimate purchase evaluation decisions and Your Internal Use); or (v) cause, encourage or assist any third party to do any of the foregoing. You agree to use the Licensed Software in accordance with applicable laws, rules and regulations and acknowledge that You are solely responsible for determining whether a particular use of the Licensed Software is compliant with such laws. Vali Competitors or any other party with interests or intentions adverse to Vali may not access, install or use the Licensed Software.
The Licensed Software is the proprietary property of Vali or its licensors and is protected by copyright law. Vali and its licensors retain any and all rights, title and interest in and to the Licensed Software, including in all copies, improvements, enhancements, modifications and derivative works of the Licensed Software. The Licensed Software is made available for use and is licensed, not sold. Your rights to use the Licensed Software shall be limited to those expressly granted in this TOU Agreement. All rights not expressly granted to You are retained by Vali and/or its licensors. Any feedback or suggestions that You provide to Vali regarding any its products or services may be used by Vali for any purpose without acknowledgement or compensation.
6. NO WARRANTY.
6.1 WARRANTY DISCLAIMER. THE LICENSED SOFTWARE IS PROVIDED “AS-IS” AND WITHOUT WARRANTY OF ANY KIND. VALI AND ITS AFFILIATES DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, VALI AND ITS AFFILIATES AND SUPPLIERS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT WITH RESPECT TO THE LICENSED SOFTWARE. THERE IS NO WARRANTY THAT THE LICENSED SOFTWARE OR ANY OTHER VALI OFFERINGS WILL BE ERROR FREE, OR THAT THEY WILL OPERATE WITHOUT INTERRUPTION OR WILL FULFILL ANY OF YOUR PARTICULAR PURPOSES OR NEEDS. THE LICENSED SOFTWARE IS NOT FAULT-TOLERANT AND ARE NOT DESIGNED OR INTENDED FOR USE IN ANY HAZARDOUS ENVIRONMENT REQUIRING FAIL-SAFE PERFORMANCE OR OPERATION. THE LICENSED SOFTWARE IS NOT FOR USE IN THE OPERATION OF AIRCRAFT NAVIGATION, NUCLEAR FACILITIES, COMMUNICATION SYSTEMS, WEAPONS SYSTEMS, DIRECT OR INDIRECT LIFE-SUPPORT SYSTEMS, AIR TRAFFIC CONTROL, OR ANY APPLICATION OR INSTALLATION WHERE FAILURE COULD RESULT IN DEATH, SEVERE PHYSICAL INJURY, OR PROPERTY DAMAGE. YOU AGREE THAT IT IS YOUR RESPONSIBILITY TO ENSURE SAFE USE OF THE LICENSED SOFTWARE IN SUCH APPLICATIONS AND INSTALLATIONS. VALI DOES NOT WARRANT ANY THIRD-PARTY PRODUCTS OR SERVICES.
6.2 NO GUARANTEE. YOU ACKNOWLEDGE, UNDERSTAND, AND AGREE THAT VALI DOES NOT GUARANTEE OR WARRANT THAT IT WILL FIND, LOCATE, DISCOVER, PREVENT OR WARN OF, ALL OF YOUR OR YOUR AFFILIATES’ SYSTEM THREATS, VULNERABILITIES, MALWARE, AND MALICIOUS SOFTWARE, AND YOU AND YOUR AFFILIATES WILL NOT HOLD VALI RESPONSIBLE THEREFOR.
7. LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL VALI OR ITS LICENSORS, RESELLERS, SUPPLIERS OR AGENTS BE LIABLE TO YOU FOR (i) ANY COSTS OF PROCUREMENT OF SUBSTITUTE OR REPLACEMENT GOODS AND SERVICES, LOSS OF PROFITS, LOSS OF USE, LOSS OF OR CORRUPTION TO DATA, BUSINESS INTERRUPTION, LOSS OF PRODUCTION, LOSS OF REVENUES, LOSS OF CONTRACTS, LOSS OF GOODWILL, OR ANTICIPATED SAVINGS OR WASTED MANAGEMENT AND STAFF TIME; OR (ii) ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES WHETHER ARISING DIRECTLY OR INDIRECTLY OUT OF THIS TOU AGREEMENT, EVEN IF VALI OR ITS LICENSORS, RESELLERS, SUPPLIERS OR AGENTS HAS BEEN ADVISED SUCH DAMAGES MIGHT OCCUR. IN NO CASE SHALL VALI’S LIABILITY EXCEED THE FEES YOU PAID FOR THE LICENSED SOFTWARE GIVING RISE TO THE CLAIM. NOTHING IN THIS AGREEMENT SHALL OPERATE SO AS TO EXCLUDE OR LIMIT VALI’S LIABILITY TO YOU FOR DEATH OR PERSONAL INJURY ARISING OUT OF NEGLIGENCE OR FOR ANY OTHER LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED BY LAW. THE DISCLAIMERS AND LIMITATIONS SET FORTH ABOVE WILL APPLY REGARDLESS OF WHETHER OR NOT YOU ACCEPT THE LICENSED SOFTWARE, CONTENT UPDATES OR UPGRADES.
Unless otherwise specified in the applicable License Instrument, Vali has no obligation under this TOU Agreement to provide maintenance/support for the Licensed Software. Any maintenance/support purchased for the Licensed Software is subject to Vali’s then-current maintenance/support policies.
9. U.S. GOVERNMENT RESTRICTED RIGHTS.
The Licensed Software is deemed to be commercial computer software as defined in FAR 12.212 and subject to restricted rights as defined in FAR Section 52.227-19 “Commercial Computer Licensed Software – Restricted Rights” and DFARS 227.7202, “Rights in Commercial Computer Licensed Software or Commercial Computer Licensed Software Documentation”, as applicable, and any successor regulations. Any use, modification, reproduction release, performance, display or disclosure of the Licensed Software by the U.S. Government shall be solely in accordance with the terms of this TOU Agreement.
10. EXPORT REGULATION.
You acknowledge that the Licensed Software and related technical data and services (collectively “Controlled Technology”) are subject to the import and export laws of the United States, specifically the U.S. Export Administration Regulations (EAR), and the laws of any country where Controlled Technology is imported or re-exported. You agree to comply with all relevant laws and will not to export any Controlled Technology in contravention to U.S. law nor to any prohibited country, entity, or person for which an export license or other governmental approval is required. All Vali products, including the Controlled Technology are prohibited for export or re-export to Cuba, North Korea, Iran, Syria and Sudan and to any country subject to relevant trade sanctions. You hereby agree that You will not export or sell any Controlled Technology for use in connection with chemical, biological, or nuclear weapons, or missiles, drones or space launch vehicles capable of delivering such weapons.
This TOU Agreement shall terminate upon Your breach of any term contained herein. Upon termination, You shall immediately stop using and destroy all copies of the Licensed Software.
Any legal or communication required or permitted to be given hereunder must be in writing, signed or authorized by the party giving notice, and may be delivered by hand, deposited with an overnight courier, sent by confirmed email or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party as identified in the License Instrument or at such other address as may hereafter be furnished in writing by either party to the other party. Such notice will be deemed to have been given as of the date it is delivered. Notice is effective on the earlier of 5 days from being deposited for delivery or the date on the confirmed email or courier receipt.
The following provisions of this TOU Agreement survive termination of this TOU Agreement: Definitions, License Restrictions and any other restrictions on use of intellectual property, Ownership/Title/Feedback, Warranty Disclaimer, No Guarantee, Limitation of Liability, U.S. Government Restricted Rights, Export Regulation, Survival, and General.
14. PRIVACY; DATA PROTECTION.
From time to time, the Licensed Software may collect certain information from the device on which it is installed, which may include:
(i) Information regarding installation of the Licensed Software. This information indicates to Vali whether installation of the Licensed Software was successfully completed and is collected by Vali for the purpose of evaluating and improving Vali’s product installation success rate. This information will not be correlated with any personally identifiable information.
(ii) Machine-generated data, such as metadata derived from tasks, file execution, commands, resources, network telemetry, executable binary files, macros, scripts, and processes, Vali uses such data to: (i) analyze, characterize, attribute, warn of, and/or respond to threats against You and other users, (ii) analyze trends and performance, (iii) improve the functionality of, and develop, Vali’s products and services, and enhance cybersecurity. Vali will not correlate this with any personally identifiable information.
(iii) Malware, spyware, virus, worm, Trojan horse, or other potentially malicious or harmful code or files, URLs, DNS data, network telemetry, commands, processes or techniques, metadata, or other information or data, in each case that is potentially related to unauthorized third parties associated therewith. Vali uses such data to: (i) analyze, characterize, attribute, warn of, and/or respond to threats against You and other users, (ii) analyze trends and performance, (iii) improve the functionality of, and develop, Vali’s products and services, and enhance cybersecurity. Vali will not correlate these files or information with any personally identifiable information.
(iv) Other information used for purposes of analyzing and improving the functionality of Vali’s products. This information will not be correlated with any personally identifiable information.
15.1. ASSIGNMENT. You may not assign the rights granted hereunder or this TOU Agreement, in whole or in part and whether by operation of contract, law or otherwise, without Vali’s prior express written consent.
15.2. COMPLIANCE WITH APPLICABLE LAW. You are solely responsible for Your compliance with, and You agree to comply with, all applicable laws, rules, and regulations in connection with Your use of the Licensed Software.
15.3. AUDIT. An auditor, selected by Vali and reasonably acceptable to You, may, upon reasonable notice and during normal business hours, but not more often than once each year, inspect Your records and deployment in order to confirm that Your use of the Licensed Software complies with this TOU Agreement and the applicable License Instrument. Vali shall bear the costs of any such audit, except where the audit demonstrates that the Manufacturer’s Suggested Reseller Price (MSRP) value of Your non-compliant usage exceeds five percent (5%) of the MSRP value of Your compliant deployments. In such case, in addition to purchasing appropriate licenses for any over-deployed Licensed Software, You shall reimburse Vali for the auditor’s reasonable actual fees for such audit.
15.4. GOVERNING LAW; SEVERABILITY; WAIVER. This Agreement shall be governed by and interpreted in accordance with the laws of the Commonwealth or Virginia, without regard to its choice of law provisions, and any action arising under or relating to the Agreement shall lie within the exclusive jurisdiction of the State and Federal Courts located in Albemarle County, Virginia. The Uniform Computer Information Transactions Act and the United Nations Convention on the International Sale of Goods shall not apply. Notwithstanding the foregoing, each party reserves the right to file a suit or action in any court of competent jurisdiction as such party deems necessary to protect its intellectual property rights and, in Vali’s case, to recoup any payments due. If any provision of this TOU Agreement is found partly or wholly illegal or unenforceable, such provision shall be enforced to the maximum extent permissible, and remaining provisions of this TOU Agreement shall remain in full force and effect. A waiver of any breach or default under this TOU Agreement shall not constitute a waiver of any other subsequent breach or default.
15.5. THIRD PARTY PROGRAMS. This Licensed Software may contain third party software programs (“Third Party Programs”) that are available under open source or free software licenses. This TOU Agreement does not alter any rights or obligations You may have under those open source or free software licenses. Notwithstanding anything to the contrary contained in such licenses, the disclaimer of warranties and the limitation of liability provisions in this TOU Agreement shall apply to such Third-Party Programs.
15.6 FORCE MAJEURE. Neither party shall be liable for, nor shall either party be considered in breach of these Terms due to, any failure to perform its obligations under these Terms (other than its payment obligations) as a result of a cause beyond its control, including but not limited to, act of God or a public enemy, act of any military, civil or regulatory authority, change in any law or regulation, fire, flood, earthquake, storm or other like event, disruption or outage of communications (including an upstream server block and Internet or other networked environment disruption or outage), power or other utility, labor problem, or any other cause, whether similar or dissimilar to any of the foregoing, which could not have been prevented with reasonable care. The party experiencing a force majeure event, shall use commercially reasonable efforts to provide notice of such to the other party.
15.7. ENTIRE AGREEMENT. This TOU Agreement and any related License Instrument are the complete and exclusive agreement between You and Vali relating to the Licensed Software and supersede any previous or contemporaneous oral or written communications, proposals, and representations with respect to its subject matter. This TOU Agreement prevails over any conflicting or additional terms of any purchase order, ordering document, acknowledgement or confirmation or other document issued by You, even if signed and returned.