VDOO™ EVALUATION TERMS AND CONDITIONS
Version: 1.0Version: 1.0
Last Updated: June 8, 2020
BY CLICKING “I AGREE” OR “ACCEPT” (OR OTHER SIMILAR BUTTON), OR BY OTHERWISE DOWNLOADING, ACCESSING AND/OR USING ANY PART OF THE SOFTWARE (DEFINED BELOW), YOU ("Customer") ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREED TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS SOFTWARE EVALUATION AGREEMENT ("Agreement"), THE DATE OF SUCH OCCURRENCE BEING THE "Effective Date".
THIS AGREEMENT CONSTITUTES A BINDING AGREEMENT BETWEEN THE CUSTOMER AND VDOO Connected Trust Ltd., AN ISRAELI COMPANY WITH A PLACE OF BUSINESS AT 156 Menachem Begin, Tel-Aviv, Israel ("VDOO"), AND GOVERNS THE CUSTOMER'S USE OF THE SOFTWARE ON A LIMITED INTERNAL EVALUATION BASIS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO BIND SUCH ENTITY TO THIS AGREEMENT AND IN SUCH CASE ALL REFERENCES TO “CUSTOMER” HEREINAFTER SHALL INCLUDE AND APPLY TO SUCH ENTITY. IF YOU DO NOT AGREE WITH ANY OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE ANY PART OF THE SOFTWARE.
BY ACCEPTING THIS AGREEMENT, YOU REPRESENT THAT YOU ARE AT LEAST 18 YEARS OF AGE.
"Authorized Number of Scans" means the number of the Firmware scans that Customer is authorized to perform hereunder. The number of scans shall be as follows: (a) if Customer is entering into this Agreement via a registration page or web form on the VDOO website, one (1) scan; and (b) in all other cases, as expressly communicated to Customer in writing by the applicable VDOO sales representative.
"Evaluation Period" means a period of days commencing upon the Effective Date. The number of days shall be as follows: (a) if Customer is entering into this Agreement via a registration page or web form on the VDOO website, seven (7) days; and (b) in all other cases, as expressly communicated to Customer in writing by the applicable VDOO sales representative.
"Firmware" means a Product's firmware.
"Products" means Customer-owned hardware devices (as may be limited by the registration page or web form on the VDOO website and/or by VDOO from time to time).
"Software" means such features and functionalities of VDOO's Vision™ software platform (in object code form only) that VDOO makes available to the Customer (as determined in VDOO's sole discretion).
2. EVALUATION LICENSE
2.1. License. Subject to the terms and conditions of this Agreement, VDOO grants Customer a limited, non-exclusive, non-assignable, non-transferable, and non-sublicensable right and license, during the Term, to access and use the Software to conduct a scan of the Firmware (up to the Authorized Number of Scans) for Customer's internal end-use evaluation of the Software (collectively, the "License"). For the avoidance of doubt, but without limitation, the License does not include the right to install the Software's ERA™ runtime agent module. Hosting of the Software's dashboard module, if applicable (and therefore, of any Customer Data) is by a third party hosting provider engaged by VDOO. Any distributed portion of the Software will be delivered electronically, and be deemed accepted upon delivery.
2.2. License Restrictions. As a condition to the License, Customer shall not do (or permit or encourage to be done) any of the following (in whole or in part): (a) copy, "frame" or "mirror" the Software; (b) sell, assign, transfer, lease, rent, sublicense, or otherwise distribute or make available the Software to any third party (such as offering it as part of a time-sharing, outsourcing or service bureau environment); (c) publicly perform, display or communicate the Software; (d) modify, alter, adapt, arrange, or translate the Software; (e) decompile, disassemble, decrypt, reverse engineer, extract, or otherwise attempt to discover the source code or non-literal aspects (such as the underlying structure, sequence, organization, file formats, non-public APIs, ideas, or algorithms) of, the Software; (f) remove, alter, or conceal any copyright, trademark, or other proprietary rights notices displayed on or in the Software; (g) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the Software; (h) make a derivative work of the Software, or use it to develop any service or product that is the same as (or substantially similar to) it; (i) store or transmit any robot, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the Software; (j) employ any hardware, software, device, or technique to pool connections or reduce the number of nodes, Products or users that directly access or use the Software (sometimes referred to as 'virtualization', 'multiplexing' or 'pooling') in order to circumvent any limitations or conditions on the scope of the License; (k) forge or manipulate identifiers in order to disguise the origin of any data or content inputted or uploaded to, or transmitted through, the Software by Customer; or (l) take any action that imposes or may impose (as determined in VDOO's reasonable discretion) an unreasonable or disproportionately large load on the servers, network, bandwidth, or other cloud infrastructure which operate or support the Software, or otherwise systematically abuse or disrupt the integrity of such servers, network, bandwidth, or infrastructure.
2.3. Specific Limitations. The License shall also be subject to whatever functionality limitations, or use or consumption limitations, as may be specified on the registration page, on VDOO's website, and/or by VDOO from time to time.
2.4. General. For the avoidance of doubt, the Software (and any copies of the Software) are only licensed under this Agreement. Customer is granted no other right in or to the Software, whether by implied license, estoppel, patent exhaustion, operation of law, or otherwise. Customer represents and warrants that all information submitted in the registration process is complete and accurate, and Customer is solely responsible and liable for ensuring the security of its account credentials and access.
2.5. Feedback. Customer shall use its best efforts to provide VDOO with detailed Feedback (defined below), and to cooperate with VDOO in further exploring and refining such Feedback. Customer warrants that Feedback will not infringe any third party's intellectual property (or other proprietary) rights or any applicable law. "Feedback" means ideas, suggestions, or similar feedback about performance of the Software and/or for improving the Software. VDOO and VDOO Affiliates (defined below) shall be entitled, during this Agreement and in perpetuity thereafter, to use, copy, make, publicly display and perform, make derivative works of, distribute, sell, and otherwise commercially exploit Feedback, for any purpose and in any media (now known or later developer), without any restriction or obligation whatsoever.
3. TERM AND TERMINATION
3.1. Term. This Agreement commences on the Effective Date and will remain in full force and effect until expiration of the Evaluation Period, unless terminated earlier in accordance herewith (the "Term").
3.2. Termination. Each party may terminate this Agreement immediately upon written notice (email acceptable) to the other party, if the other party breaches any provision of this Agreement. Moreover, VDOO may terminate this Agreement for convenience upon two (2) days' prior written notice (email acceptable) to Customer.
3.3. Effect of Termination; Survival. Upon termination of this Agreement, the License will automatically terminate, and Customer shall immediately cease all access to and use of the Software, as well as permanently erase any distributed copies of the Software within Customer's possession or control (and, if technically feasible, authorizes VDOO to do so in the event Customer fails to promptly do so). Termination of this Agreement (as applicable) shall not affect any right, remedy, obligation or liability that accrued as of the effective date of termination. Any provision in this Agreement that is stated (or by its nature ought) to survive expiration or termination, shall survive, as will Sections 4 (Ownership) through 8 (General) inclusive.
4.1. Software. Customer hereby acknowledges that the Software is or may be protected by laws, treaties, and conventions governing intellectual property rights. Any rights not expressly granted herein are hereby reserved by VDOO and its licensors and suppliers. VDOO (and/or its licensors, as applicable) is, and shall be, the sole and exclusive owner of all right, title, and interest (including without limitation all intellectual property rights) in and to: (a) the Software; (b) any and all improvements, derivative works, and/or modifications of/to the Software, regardless of inventorship or authorship; and (c) any non-Customer-identifying information, data, analyses, and/or intelligence relating to the operation, support, and/or Customer’s use, of the Software (such as metadata, aggregated data, and analytics). Customer shall make, and hereby irrevocably makes, all assignments necessary or reasonably requested by VDOO to ensure and/or provide VDOO (or a VDOO Affiliate) the ownership rights set forth in this paragraph.
4.2. Customer Material. As between the parties, Customer is, and shall be, the sole and exclusive owner of all data and information (including without limitation the Firmware) inputted or uploaded to the Software by or on behalf of Customer ("Customer Material"). Customer shall not provide or make available to VDOO (or otherwise expose VDOO to) any Customer Material that includes or links to Sensitive Data. "Sensitive Data" means any (i) categories of data enumerated in Article 9(1) of the European Union's General Data Protection Regulation (Regulation 2016/679, aka the GDPR) or any successor law; (ii) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards ("PCI DSS"); (iii) Nonpublic Personal Information (NPI) (as defined by the Gramm-Leach-Bliley Act and its implementing rules and regulations) or Personal Health Information (PHI) data (as defined by the Health Insurance Portability and Accountability Act and its implementing rules and regulations); or (iv) any data similar to the foregoing that is protected under foreign or domestic laws. Customer represents and warrants that processing of Customer Material (including without limitation the Software's scanning of the Firmware) under this Agreement (whether by VDOO, a VDOO Affiliate, or the third party hosting provider) will not violate any law, proprietary right, or privacy right.
Each of VDOO (and a VDOO Affiliate) and Customer (the "Recipient") may have access under this Agreement to certain non-public or proprietary information or materials of the other party (the "Discloser"), whether in tangible or intangible form ("Confidential Information"). Without derogating from any other obligation in this Agreement, Customer will treat the Software as VDOO's Confidential Information. Confidential Information will not include information or material which Recipient can demonstrate: (a) was in the public domain at the time of disclosure by Discloser to Recipient hereunder; (b) became part of the public domain after disclosure by Discloser to Recipient hereunder, through no fault of Recipient; (c) was in the Recipient's possession at the time of disclosure by the Discloser hereunder, and was not subject to prior continuing obligations of confidentiality by Recipient to Discloser; (d) was rightfully disclosed to the Recipient by a third party having the lawful right to do so; and/or (e) was independently and rightfully developed by the Recipient without (direct or indirect) use of, or reliance upon, Discloser's Confidential Information. Recipient shall safeguard the Discloser's Confidential Information and use it solely for the purpose of Recipient performing its obligations and/or exercising its rights under this Agreement. Recipient shall not disclose or make available the Discloser's Confidential Information to any third party, except to its employees, that have a need to know such information and that are bound by obligations at least as protective as provided herein. Recipient will promptly notify Discloser in writing in the event of any actual or suspected unauthorized use or disclosure of the Discloser's Confidential Information. Each party acknowledges that in the event of a breach or threatened breach of this Section (Confidentiality) by the other party, the non-breaching party may suffer irreparable harm or damage for which monetary damages will be inadequate, and will, therefore, be entitled to injunctive relief and specific performance to enforce the obligations under this Section (Confidentiality) without the need to post a bond.
6. DISCLAIMER OF WARRANTIES
THE SOFTWARE, ALL SERVICES (SUCH AS SETUP SERVICES AND THIRD PARTY HOSTING SERVICES), AS WELL AS ANY OTHER ITEMS (SUCH AS REPORTS OR OTHER OUTPUT GENERATED BY THE SOFTWARE) PROVIDED OR MADE AVAILABLE BY VDOO AND/OR A VDOO AFFILIATE OR ITS LICENSOR, ARE PROVIDED AND MADE AVAILABLE ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION OF ANY KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY OF SERVICE, NON-INFRINGEMENT, QUIET POSSESSION, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR DEALING, OR USAGE OF TRADE, ALL OF WHICH ARE HEREBY DISCLAIMED BY VDOO AND ITS LICENSORS AND SUPPLIERS. NO REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION IS MADE THAT CUSTOMER'S USE OF THE SOFTWARE OR SAID OTHER ITEMS WILL MEET CUSTOMER'S REQUIRMENTS OR EXPECTATIONS, OR WILL BE INTERRUPTED, SECURE OR ERROR-FREE. VDOO WILL NOT BE RESPONSIBLE OR LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR FOR ISSUES RELATED TO PUBLIC NETWORKS OR HOSTING PROVIDERS.
7. LIMITATION OF LIABILITY
7.1. IN NO EVENT WILL VDOO OR ANY VDOO AFFILIATE, OR THEIR LICENSORS, BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, FOR: (A) ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES; (B) ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF REVENUE, OR LOSS OF ANTICIPATED SAVINGS; (C) ANY LOSS OF, OR DAMAGE TO, DATA, REPUTATION, OR GOODWILL; AND/OR (D) THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES. THE COMBINED AGGREGATE LIABILITY OF VDOO AND ALL VDOO AFFILIATES UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT SHALL NOT EXCEED TEN U.S. DOLLARS (US$ 10).
7.2. THE FOREGOING EXCLUSIONS AND LIMITATION SHALL APPLY: (A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; (B) EVEN IF VDOO HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (C) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (D) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY, AND WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION, RESTITUTION, OR OTHERWISE.
8.1. Governing Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Israel, without regard to any conflicts of laws rules. The United Nations Convention on Contracts for the International Sale of Goods, as well as the Uniform Computer Information Transactions Act, shall not apply to this Agreement and are hereby disclaimed. Any claim, dispute, or controversy hereunder shall be subject to the exclusive jurisdiction and venue of the courts located in Tel Aviv, Israel, and each party hereby irrevocably submits to the personal jurisdiction of such courts and waives any jurisdictional, venue, or inconvenient forum objections to such courts. Notwithstanding the foregoing, VDOO may seek equitable relief in any court of competent jurisdiction. FURTHERMORE, THE PARTIES HEREBY IRREVOCABLY WAIVE THE RIGHT TO LITIGATE ANY DISPUTES BEFORE A JURY. EXCEPT TO PROTECT OR ENFORCE A PARTY'S INTELLECTUAL PROPERTY RIGHTS OR CONFIDENTIALITY OBLIGATIONS, NO ACTION, REGARDLESS OF FORM, UNDER THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE (1) YEAR AFTER TERMINATION OF THE AGREEMENT.
8.2. Entire Agreement. This Agreement represents the entire agreement between VDOO and Customer with respect to the subject matter hereof, and supersedes and replaces any and all prior and contemporaneous oral and/or written agreements, understandings and statements between Customer and VDOO with respect to such subject matter. Customer acknowledges and agrees that in entering into this Agreement it has not relied on any statement or representation (whether negligently or innocently made) not expressly set out in this Agreement, such as statements and explanations in any FAQs, summaries or explanatory guides regarding this Agreement, or other marketing material on the VDOO website.
8.3. Language of Agreement. The language of this Agreement is expressly agreed to be the English language. By entering into the Agreement Customer hereby irrevocably waives, to the maximum extent legally permitted, any law applicable to Customer requiring that the Agreement be localized to meet Customer's language (as well as any other localization requirements) or requiring an original (non-electronic) signature or delivery or retention of non-electronic records. This Agreement may be accepted by Customer electronically, and such electronic acceptance shall have the same force and effect as an original signature.
8.4. Amendments. VDOO reserves the right to unilaterally modify this Agreement at any time by posting the changed version at https://www.vdoo.com/eula VDOO shall provide notice of the changed version through a pop-up or banner within the Software, by sending an email to any address Customer may have used to register for the Software, or through other similar mechanisms.) Such changes will be effective after receipt of such notice from VDOO, and Customer's continued use of the Software thereafter shall constitute Customer's acceptance of such changes (accordingly if Customer objects to any of the changes, Customer's sole remedy is to cease all access and use of the Software). In the event of such changes, VDOO will also update the "Last Updated" date and "Version" number set forth above. Please check the above webpage regularly for any changes to this these terms and conditions.
8.5. Section Headings. Section headings herein are for convenience only, and shall not be used for interpretive purposes.
8.6. Assignment. VDOO may assign this Agreement (or any of its rights and obligations) without restriction or obligation. Customer may not assign this Agreement (or any of its rights and obligations) without VDOO's prior express written consent. Any prohibited assignment shall be null and void. At VDOO's sole discretion, any VDOO obligation hereunder may be performed (in whole or in part), and any VDOO right or remedy may be exercised (in whole or in part), by a corporate subsidiary, parent or affiliate of VDOO (each, a "VDOO Affiliate").
8.7. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, then: (a) the remaining provisions of this Agreement shall remain in full force and effect; and (b) the parties hereto agree that the court making such determination shall have the power to limit the provision, to delete specific words or phrases, or to replace the provision with a provision that is legal, valid and enforceable and that most closely approximates the original legal intent and economic impact of such provision, and this Agreement shall be enforceable as so modified in respect of such jurisdiction. In the event such court does not exercise the power granted to it as aforesaid, then such provision will be ineffective solely as to such jurisdiction (and only to the extent and for the duration of such illegality, invalidity or unenforceability), and will be substituted (in respect of such jurisdiction) with a valid, legal and enforceable provision that most closely approximates the original legal intent and economic impact of such provision.
8.8. Remedies and Waiver. Except as stated otherwise in this Agreement, no right or remedy conferred upon or reserved by any party under this Agreement is intended to be, or shall be deemed, exclusive of any other right or remedy under this Agreement, at law or in equity, but shall be cumulative of such other rights and remedies. No failure or delay on the part of any party hereto in exercising any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. Any waiver granted hereunder must be in writing, and shall be valid only in the specific instance in which given.
8.9. Relationship. The relationship of the parties is solely that of independent contractors. Nothing in this Agreement shall be deemed to create any employment, fiduciary, joint venture, agency or other relationship between the parties.
8.10. No Third Party Beneficiaries. Except as otherwise expressly provided in this Agreement (such as VDOO Affiliates), there shall be no third-party beneficiaries of or under this Agreement.
8.11. Force Majeure. VDOO shall not be responsible for any failure to perform any obligation or provide any service hereunder because of any (a) act of God, (b) war, riot or civil commotion, (c) governmental acts or directives, strikes, work stoppage, or equipment or facilities shortages, and/or (d) other similar cause beyond VDOO's reasonable control. For the avoidance of doubt, any problems relating to the hosting of the Software shall not be deemed within VDOO's reasonable control.
8.12. Publicity. The Customer agrees that VDOO may contact the Customer or any of its representatives for business purposes, including without limitation for purposes of product support and/or to send the Customer or any of its representatives marketing communications about VDOO, its products and services.
8.13. US Government Rights. The Software is "commercial computer software" and its documentation is "commercial computer software documentation," pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. If Customer is an agency, department, employee or other entity of the United States Government, then Customer's access to and use of the Software shall be subject solely to the terms and conditions of this Agreement.
8.14. Export Compliance. Customer represents and warrants that: (a) it is not a resident of (or will use the Software in) a country that the U.S. government has embargoed for use of the Software, nor is Customer named on the U.S. Treasury Department’s list of Specially Designated Nationals or any other applicable trade sanctioning regulations of any jurisdiction; and (b) its country of residence and/or incorporation (as applicable) is the same as the country specified in the contact and/or billing address provided to VDOO. In the event Customer breaches this Section (in whole or in part), or otherwise violates any Export Control Laws (defined below) in connection with the Software, Customer agrees to indemnify and hold harmless VDOO and all VDOO Affiliates (including ours and their respective directors, officers, and employees) for any fines and/or penalties imposed upon VDOO or a VDOO Affiliate (or such persons) as a result of such breach or violation. "Export Control Laws" means all applicable export and re-export control Laws applicable to Customer and/or VDOO, as well as the United States' Export Administration Regulations (EAR) maintained by the US Department of Commerce, trade and economic sanctions maintained by the US Treasury Department's Office of Foreign Assets Control, and the International Traffic in Arms Regulations (ITAR) maintained by the US Department of State.