BY DOWNLOADING, INSTALLING, OR USING THE ILLUMIO® ADAPTIVE SECURITY PLATFORM® SOFTWARE (“SOFTWARE”) OF ILLUMIO, INC. (“ILLUMIO”), YOU (THE INDIVIDUAL OR LEGAL ENTITY, HEREIN REFERED TO AS “YOU” OR “YOUR” OR “USER”) AGREE TO BE BOUND BY THIS END USER LICENSE AGREEMENT (“AGREEMENT”). IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MUST NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE AND YOU MUST DELETE THE SOFTWARE IMMEDIATELY. NOTWITHSTANDING THE FOREGOING, THIS AGREEMENT SHALL NOT APPLY AND SHALL NOT BIND ANY PARTY, IF YOU AND ILLUMIO HAVE ENTERED INTO A SEPARATE AGREEMENT FOR USE OF THE SOFTWARE AND SUCH AGREEMENT STATES THAT IT SHALL SUPERSEDE THIS AGREEMENT.
1. License. Subject to the terms and conditions of this Agreement, Illumio grants to you a limited, non-exclusive, non-transferable, non-sublicensable license to use the Software, in executable form only, for internal purposes and only on servers owned or controlled by you (the “License”). You may not, and may not permit or aid others to, translate, reverse engineer, decompile, disassemble, update, modify, reproduce, duplicate, copy, distribute or otherwise disseminate all or any part of the Software, or extract source code from the object code of the Software.
2. Proprietary Rights; Confidentiality. You acknowledge and agree that the Software is a proprietary product of Illumio, protected under copyright laws and international treaties. You further acknowledge and agree that all right, title and interest in and to the Software and any derivatives thereof are and shall remain with Illumio. All intellectual property rights (including, without limitation, copyrights, trade secrets, trademarks, etc.) evidenced by or embodied in and/or attached/connected/related to the Software, including any revisions, corrections, modifications, enhancements, updates and/or upgrades thereof (to the extent provided by Illumio) are and shall be owned solely by Illumio.
3. Term; Termination. The License is effective until terminated by you or Illumio. Your rights under license will terminate automatically without notice from Illumio if you fail to comply with any term(s) of this Agreement. Upon termination, you shall cease all use of the Software and destroy all copies, full or partial, of the Software.
4. Open Source. Notwithstanding anything herein to the contrary, Open Source Software (as defined below) is licensed to you under the license terms for such Open Source Software. The Open Source Software license terms are consistent with the License granted in this Agreement, and may contain additional rights benefiting you. The Open Source Software license terms shall take precedence over this Agreement to the extent that this Agreement imposes greater restrictions on you than the applicable Open Source Software license terms. To the extent the license for any Open Source Software requires Illumio to make available to you the corresponding source code and/or modifications (the "Source Files"), you may obtain a copy of the applicable Source Files by sending a written request, with your name and address to: Illumio, Inc., 920 De Guigne Avenue, Sunnyvale, California, United States of America. All requests should clearly specify: Open Source Files Request, Attention: Legal Department. This offer to obtain a copy of the Source Files is valid for three years from the date you acquired this Software. As used herein, “Open Source Software” means software components embedded in the Software and provided under separate license terms, which can be found in the Open Source Software disclosure file (or similar file) provided within the Software.
5. Compliance. The Software may be subject to United States export control regulations. Without prior authorization from the United States government, you shall not use the Software for, and shall not permit the Software to be used for, any purposes prohibited by United States law, including, without limitation, for any prohibited development, design, manufacture or production of missiles or nuclear, chemical or biological weapons. Without limiting the foregoing, You represent and warrant that: (a) You are not, and are not acting on behalf of, any person who is a citizen, national, or resident of, or who is controlled by the government of, Cuba, Iran, North Korea, Sudan, or Syria, or any other country to which the United States has prohibited export transactions; (b) You are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (c) You are not, and are not acting on behalf of, any person or entity listed on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons, or the U.S. Commerce Department Denied Persons List, Unverified List, or Entity List or any other U.S. Government list of prohibited or restricted parties unless authorized by license or regulation.
6. No Warranty. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND LICENSOR HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SOFTWARE, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. SHOULD THE SOFTWARE PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
7. Limitation of Liability. UNDER NO CIRCUMSTANCES WILL ILLUMIO BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, FOR LOSS OF PROFITS, USE, REVENUE, OR DATA OR FOR BUSINESS INTERRUPTION (REGARDLESS OF THE LEGAL THEORY FOR SEEKING SUCH DAMAGES OR OTHER LIABILITY) ARISING OUT OF OR IN CONNECTION WITH USE OF THE SOFTWARE, WHETHER OR NOT LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, THE LIABILITY OF ILLUMIO ARISING OUT OF OR RELATING TO THE SOFTWARE WILL NOT EXCEED THE AMOUNT PAID OR PAYABLE BY YOU (IF ANY) FOR SUCH SOFTWARE.
8. General. This Agreement shall be governed by and construed in accordance with the laws of the State of California, regardless of its conflict of laws rules. This Agreement constitutes the entire agreement between Illumio and You with respect to its subject matter and may not be modified except by a written instrument executed by You and an authorized representative of Illumio.