EULA Fidelis Cybersecurity (End User License Agreement)

Important
Be sure to carefully read and understand all the terms and conditions set forth in this Agreement (“Agreement”)prior to opening, installing, or using this Product (as defined below). This Product contains software and other proprietary material that is subject to this Agreement. By installing and using the Product with which this Agreement was provided, the user creates a binding legal agreement between Fidelis Cybersecurity, Inc. (“Fidelis”) and the entity that is the end user of the Product (“Customer”). By installing and using the Product, you represent that you have been authorized to accept and acknowledge your acceptance of these terms on behalf of the Customer, and have read, understand and agree to be bound by the terms and conditions of this Agreement. If you are not so authorized or do not agree to these terms, then Fidelis refuses to permit access to, license of, or the installation and use of the Product, and any installation or use of the Product shall constitute a violation of applicable intellectual property laws and conventions.



Defintions
a. “Product” means the Fidelis-provided hardware (“Hardware”) to which this document applies, together with the object code copy 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: (i) Fidelis’ proprietary software (and any included third-party software) made available for use 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, and/or (ii) Fidelis’ proprietary Endpoint software (along with any included third-party software), which is made available for use on Customer-owned endpoint devices.
b. “Business Partner” means Customers of Fidelis via Trusted Advisor or MSSP Agreements.
c. “Claim” means any third-party claim, suit or proceeding.
d. “Confidential Information” means contain proprietary and confidential information of Fidelis. It 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.
e. “Documentation” means the user guides and manuals for installation and use of the Product. regardless of format.
f. “Endpoint” means any computer, phone or device that is owned by the Customer and running any Fidelis Endpoint software.
g. “Feeds” means certain dynamic information updates related to security threats.
h. “Software Update” means any error corrections, fixes, patches, new versions, new releases, modifications, functional improvements or replacement of the Software made available to Customer at Fidelis’ sole discretion under an active maintenance and support contract between Customer and Fidelis in connection with the Product.
i. “Submissions” means submissions to the Fidelis cloud-based malware detection and analysis capability.



License
a. Upon payment of the applicable fees for the Product, subject to the terms and conditions of this Agreement, Fidelis grants to Customer a personal, non-exclusive and non-transferable license to use the Software and related Documentation in object code form for use on the Hardware, solely for Customer’s internal business purposes and, and as set forth in the Customer’s purchase order as accepted by Fidelis and for which Customer has paid to Fidelis the required license fees (the “Purchase Order”). If, per the Purchase Order, the Software was licensed for a limited term, the term of the license granted herein will be as set forth in the applicable Purchase Order.
b. The Product may contain third-party software. Unless expressly provided for, any third-party software may only be used in conjunction with the Product under the terms of this Agreement. The application package documentation that accompanies such third-party software may also indicate certain third-party technology that may be appropriate or necessary for use with such third-party software, or Fidelis or its licensors may notify Customer as to such third-party technology. Any such third-party technology is licensed to Customer only for use with the relevant application package under the terms of the third-party license agreement specified in the application package documentation or as otherwise notified by Fidelis or its licensor, and not under the terms of this Agreement.

License Restrictions
a. Customer shall not: (i) copy all or part of the Product or use the Product (including the Documentation) except as specified in this Agreement; (ii) modify, alter, adapt, enhance, improve, revise, correct errors in, or create derivative works of the Software or any part thereof, (iii) cause or permit the reverse engineering, de-encryption, disassembly or de-compilation of the Product or otherwise attempt to create the source code from the Software or gain access to trade secrets or confidential information of Fidelis or its licensors; (iv) remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Software or Documentation; (v) rent, lease, sell, assign, transfer, distribute or sublicense the Software or any part thereof or permit access to the Software by third parties or use the Software for service bureau or time-sharing purposes; (vi) use the Product for competitive analysis or permit publication or distribution of functionality or performance testing of the Product without express written consent of Fidelis; (vii) remove, disable, circumvent or otherwise create or implement any workaround to any technological copy protection or other security features designed to prevent unauthorized use of the Software; or (viii) other than as installed on Endpoints, use the Software on any third-party equipment, except on virtual hardware approved by Fidelis; (ix) permit any third party to do any of the foregoing.
b. Notwithstanding the foregoing limitations, Fidelis authorizes Customer to make as many archival copies of the Software and Documentation as Customer reasonably requires solely for its internal use, provided such archival copies are not used for production purposes.
c. 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, at Customer’s expense. Fidelis shall be permitted to report the audit results to its licensors as applicable in relation to use of software licensed by such licensors.
d. Business Partners shall register Fidelis sensors (proprietary components that monitor network environment for activities that may indicate advanced threat malware and data theft) with Fidelis as such sensors are deployed.  Registry shall include the name of the corporate entity deploying the sensor and the physical location of such sensor.

Ownership and Proprietary Notices
a. As between Customer and Fidelis, all rights, title and interest in the Software, including any and all copyrights, patent rights, trade secrets, trademarks, service marks, trade names, trade secrets, know-how and any other statutory or common law intellectual property or other proprietary rights related to the Product, including the design, manufacture, operation or service of the Product, are owned by Fidelis or its licensors. Customer shall obtain no rights in the Software except those limited, non-exclusive rights expressly granted under this Agreement.
b. 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.
c. Except as set forth herein, or as may be permitted in writing by Fidelis, Customer shall not provide access to, transmit or otherwise make available, the Software and the Documentation or any part or any copy thereof to any third party; provided, however, that Customer may permit its employees, agents and contractors that are not Fidelis competitors having a need-to-know for purposes of operating or maintaining the Software or Hardware to access or use of the Software on behalf of Customer upon such employees’, agents’ and contractors’ agreement to access or use the Software in accordance with the limitations set forth in this Agreement, and subject to a non-disclosure agreement which is at least as protective as the obligations set forth herein. Customer will take appropriate action, by instruction, agreement, or otherwise, with the persons permitted access to the Software and related Documentation to enable Customer to satisfy its obligations under this Agreement

Maintenance and Support
a. Subject to payment by Customer of the fees as set forth in the Customer’s Purchase Order as accepted by Fidelis (or that of an authorized third party purchasing such services from Fidelis for delivery to Customer), Fidelis will provide maintenance and support for the Product to the extent available and as set forth in the Maintenance and Support Agreement at the time the Purchase Order is accepted by Fidelis. The current version of the Maintenance and Support Agreement is available online at https://www.fidelissecurity.com/contracts/maintenance_and_support_agreement. In the absence of a separate purchase of support in accordance with the foregoing, Fidelis has no obligation to provide Software Updates or technical support under this Agreement.
b. As a part of maintenance and support services, for certain Products, Fidelis may make Feeds available to Customer for use in connection with the Products. Customer will have the option whether to configure the Product to accept the Feeds. Customer acknowledges that certain statistical and/or aggregate 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.
c. Customer acknowledges that Submissions will become the property of Fidelis. Customer agrees to allow Fidelis to use Submissions and information about Submissions without limitation.



Confidentiality
Customer acknowledges that the Product and the Documentation contain Confidential Information. Customer hereby agrees that Customer shall at no time use such Confidential Information except 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.



Term and Termination
This Agreement shall remain effective until terminated in accordance herewith. Customer may terminate this Agreement by destroying and/or returning to Fidelis all copies of the Product. This Agreement and any rights granted to Customer will terminate immediately if Customer fails to comply with the terms of this Agreement. Upon termination or expiration of this Agreement, the licenses granted hereunder shall terminate effective immediately and Customer shall promptly cease all use of the Product, destroy and/or return to Fidelis all copies of the Product, return, at Customer’s expense, any Confidential Information (including all print copies thereof) in Customer’s possession or control, destroy all electronic copies of the Confidential Information, and certify that Customer has complied with the foregoing requirements.

Limited Warranty and Warranty Disclaimers
a. Fidelis warrants that for a period of ninety (90) days from shipment of the Product to Customer, the Product will perform substantially in accordance with its applicable Documentation. This warranty does not apply if the Software has been al:tered, except by Fidelis, or has not been installed, operated, repaired, or maintained in accordance with instructions supplied by Fidelis. This limited warranty extends only to Customer as the original licensee of the Software and may be enforced solely by Customer.
b. Customer’s sole and exclusive remedy and the entire liability of Fidelis and its suppliers under this limited warranty will be, at Fidelis’ option, repair or replacement of the Product or the component thereof that is not in compliance with the warranty, or a refund of that portion of the purchase price allocable thereto by Fidelis, provided that Fidelis shall have received from Customer during the applicable warranty period written notice of the alleged warranty breach.
c. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, THE PRODUCT IS PROVIDED AS IS, AND FIDELIS DISCLAIMS ALL WARRANTIES REGARDING THE PRODUCT, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TIMELINESS, ACCURACY, COMPLETENESS, RESULTS, AND IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. FIDELIS DOES NOT WARRANT THAT THE PRODUCT WILL MEET CUSTOMER REQUIREMENTS, THAT THE OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED OR FREE FROM ALL DEFECTS OR ERRORS, OR THAT THE PRODUCT WILL WORK IN COMBINATION WITH ANY HARDWARE OR SOFTWARE PROVIDED BY THIRD PARTIES. THERE IS NO WARRANTY AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE PRODUCT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY FIDELIS, ITS EMPLOYEES, DISTRIBUTORS OR RESELLERS SHALL CR:EATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF FIDELIS’ LIABILITY HEREUNDER. FIDELIS DOES NOT WARRANT OR GUARANTEE THE SECURITY OF CUSTOMER’S COMPUTER SYSTEMS OR DATA, OR THAT CUSTOMER’S COMPUTER SYSTEMS ARE IMMUNE FROM HARMFUL OR UNAUTHORIZED EXTRUSIONS, INTRUSIONS, OR ANY OTHER SECURITY EXPOSURES.



Limitation of Liability
a. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL FIDELIS, ITS LICENSORS, RESELLERS OR DISTRIBUTORS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, MULTIPLE OR PUNITIVE DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF GOODWILL, LOST OR DAMAGED DATA, LOSS OF SOFTWARE, DOWNTIME OR COSTS OF SUBSTITUTE PRODUCTS) ARISING FROM THE LICENSE, DELIVERY AND/OR USE OF THE SOFTWARE OR ANY OTHER ACT OR OMISSION OF FIDELIS IN CONNECTION WITH THIS AGREEMENT REGARDLESS OF THE FORM OF AC:TION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF FIDELIS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
b. IN NO EVENT WILL FIDELIS BE LIABLE FOR DAMAGES HEREUNDER IN EXCESS OFAGGREGATEAMOUNTS ACTUALLY RECEIVED BY FIDELIS IN CONNECTION WITH THIS AGREEMENT. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
c. THE LIMITATIONS IN THIS SECTION SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.



Infringement Claims
Subject to the exclusions set forth below in this section, Fidelis will defend, at its expense with counsel of its choice, any Claim brought against Customer alleging that the Products, in the form delivered by Fidelis to Customer, infringe a United States copyright or trade secret of such third party and will pay directly or indemnify Customer for all damages and costs finally awarded against Customer regarding such Claim or amounts agreed to in a monetary settlement of such Claim, provided in each case that Customer: (a) notifies Fidelis promptly of the Claim; (b) cooperates fully with Fidelis in the defense of such Claim; and (c) gives Fidelis sole and exclusive control over the defense and settlement of such Claim. If Customer’s further distribution of the Products as authorized hereunder is enjoined or if Fidelis believes it is commercially practicable to do so, Fidelis may, at its sole election and expense: (i) obtain for Customer the right to continue using the Products; (ii) replace the Products with non-infringing, functionally equivalent Products; (iii) modify the Products so they become non-infringing, or (iv) terminate this Agreement and all licenses granted hereunder and refund Customer a pro-rated portion of any prepaid license fees, amortized on a straight-line basis over three years from the license purchase date. Fidelis, its resellers or distributors hold no liability hereunder with respect to any claim: (i) relating to software contained with the Product or provided by Fidelis that is proprietary to a third party, (ii) that is based upon or results from the combination of Products with equipment, devices, firmware or software not furnished by Fidelis, where the alleged infringement relates to such combination; (iii) that results from any modification of Products after delivery (other than by Fidelis); (iv) attributable to changes or customizations to the Products made at Customer’s direction, or (v) occurring after failure by Customer to install or have installed changes or revisions or up:dates in accordance with Fidelis’ instructions, where such changes or revisions would have cured the infringement. This Section states the exclusive remedy of Customer and liability of Fidelis, its distributors and resellers with respect to claims of infringement of any intellectual property rights.