Grey Market Labs
END USER LICENSE AGREEMENT

BY BOTH PARTIES EXECUTING THIS AGREEMENT IN WRITING, THE ELIGIBLE ORDERING ACTIVITY UNDER GSA SCHEDULE CONTRACTS IDENTIFIED IN THE PURCHASE ORDER, STATEMENT OF WORK, OR SIMILAR DOCUMENT (“ORDERING ACTIVITY” OR “YOU”) AGREE TO THE TERMS OF THIS END USER LICENSE AGREEMENT. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON OR COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY OR LEGAL ENTITY TO THESE TERMS.

IF YOU DO NOT AGREE TO THESE TERMS:

  • DO NOT DOWNLOAD, INSTALL, COPY, ACCESS OR USE THIS SOFTWARE, AND
  • PROMPTLY RETURN THIS SOFTWARE AND PROOF OF ENTITLEMENT TO THE PARTY FROM WHOM YOU ACQUIRED THEM
  1. Definitions.
    1. “Authorized Partner” means any of Grey Market Labs’ distributors, resellers or other business partners that are authorized by Grey Market Labs in writing to sell Support or the Software license rights granted under this Agreement.
    2. “Cloud Services” means the cloud services that Grey Market Labs provides to Customer. Access to the Cloud Services requires either an active support agreement or an active subscription, as required by the specific offering.
    3. “Documentation” means explanatory materials in printed, electronic or online form accompanying the Software in English and other languages, if available.
    4. “High Risk System” means a device or system that requires extra safety functionalities such as fail-safe or fault tolerant performance features to maintain a safe state where it is reasonably foreseeable that failure of the device or system could lead directly to death, personal injury, or catastrophic property damage. A device or system with a fail-safe feature in the event of failure may revert to a safe condition rather than break down, may include a secondary system that comes into operation to prevent a malfunction, or may operate as a backup in the event of a malfunction. A device or system with a fault-tolerant feature in the event of failure may continue its intended operation, possibly at a reduced level, rather than failing completely. Without limitation, High Risk Systems may be required in critical infrastructure, industrial plants, manufacturing facilities, direct life support devices, aircraft, train, boat or vehicle navigation or communication systems, air traffic control, weapons systems, nuclear facilities, power plants, medical systems and facilities, and transportation facilities.
    5. “Grey Market Labs” means (i) Grey Market Labs, PBC, with offices located at 6446 Overbrook Street, Falls Church, VA, USA
    6. “Software” means the Grey Market Labs software program in object code format (i) licensed from Grey Market Labs and purchased from Grey Market Labs or its Authorized Partners, or (ii) embedded in or pre-loaded on Grey Market Labs-branded hardware equipment purchased from Grey Market Labs or its Authorized Partners, in each case including Upgrades and Updates that you install during the applicable Support period. Software may also include additional features or functionality that can be accessed with either a current subscription or active support contract to certain Cloud Services as required by the specific offering and subject to the Cloud Terms of Service.
    7. “Standard” means a technology specification created by a government sponsored group, an industry sponsored group, or any similar group or entity that creates technology specifications to be used by others. Examples of Standards include GSM, LTE, 5G, Wi-Fi, CDMA, MPEG, and HTML. Examples of groups that create Standards include IEEE, ITU, 3GPP, and ETSI.
    8. “Subsidiary” means any entity controlled by you through greater than fifty per cent (50%) ownership of the voting securities.
    9. “Support” or “Technical Support” means the support services offered by Grey Market Labs for the support and maintenance of the Software and the Grey Market Labs-branded hardware equipment as further specified in the Grey Market Labs Technical Support and Maintenance Terms.
    10. “Updates” are related to content of the Software and that are made generally available to Grey Market Labs’ customer base as a part of purchased Support and which are not separately priced or marketed by Grey Market Labs.
    11. “Upgrade” means any and all improvements in the Software that are made generally available to Grey Market Labs’ customer base as part of purchased Support and which are not separately priced or marketed by Grey Market Labs.
  2. License Grant; Proprietary Rights.
    1. Subject to the terms and conditions of this Agreement, Grey Market Labs hereby grants to you a non-exclusive, nontransferable right to use the Software (for the purpose of this Agreement, to use the Software includes to download, install, and access the Software) solely for your own internal business operations. You are not granted rights to Updates and Upgrades unless you have purchased Support (or a service subscription granting rights to Updates and Upgrades).
    2. The Software, including, without limitation, its object code and source code, whether or not provided to you, is strictly confidential to Grey Market Labs. Grey Market Labs (or its licensors) owns exclusively and reserves all – and you may not exercise any – right, title, and interest in and to the Software, including, without limitation, all intellectual property rights in and to the Software, except to the extent of the limited Software use license granted to you in this Agreement. This Agreement is not an agreement of sale, and no title, intellectual property rights, or ownership rights to the Software are transferred to you pursuant to this Agreement. You acknowledge and agree that the Software and all ideas, methods, algorithms, formulae, processes, and concepts used in developing or incorporated into the Software, all future Updates and Upgrades, and all other improvements, revisions, corrections, bug-fixes, hot- fixes, patches, modifications, enhancements, releases, upgrades, and policy and database updates and other updates in, of, or to the Software, and all copies of the foregoing are trade secrets and proprietary property of Grey Market Labs, having great commercial value to Grey Market Labs. Ownership of derivative works should be as set forth in the copyright statute, 17 U.S.C. § 103 and the FAR clause at 52.227-14, but at a minimum, the Ordering Activity shall receive unlimited rights to use such derivative works at no further cost.
    3. Reserved Rights. The Cloud Services are strictly confidential to Grey Market Labs. Grey Market Labs (or its licensors) owns exclusively and reserves all rights to the Cloud Services, and Customer may not exercise any, right, title, and interest in and to the Cloud Services, including, without limitation, all Intellectual Property Rights in and to the Cloud Services, except to the extent of the limited rights granted to Customer in this Agreement. This Agreement is not an agreement of sale, and no title, Intellectual Property Rights, or ownership rights to the Cloud Services are transferred to Customer under this Agreement. Customer acknowledges and agrees that the Cloud Services and all ideas, methods, algorithms, formulae, processes, and concepts used in developing or incorporated into the Cloud Services, and all other improvements, revisions, corrections, modifications, enhancements, releases, upgrades, and policy, database, and other updates in, of, or to the Cloud Services, and all derivative works based on any of the foregoing, and any copies of the foregoing are trade secrets and reserved to and proprietary property of Grey Market Labs
    4. Right to Use Customer Data. We will not sell our customer data to any third party, regardless of the level of anonymization or disaffiliation applied. Customer hereby grants Grey Market Labs a limited, non-exclusive, royalty-free, perpetual license to access and use the Customer Data as necessary for (1) Grey Market Labs to provide the Cloud Services and technical support to Customer during the applicable Subscription Period; (2) to maintain or improve the Cloud Services and other security related products; (3) for internal research for threat protection solutions, such as improved spam protection (unless Customer opts out of those uses through the options available in the console); (4) for administration of the Agreement
    5. Product Entitlement: The use of the Software depends on the licenses purchased (e.g. nodes, users, throughput) on the applicable date of your Purchase Agreement.
    6. Multiple Platforms/Bundles: If the Software supports multiple platforms or if you receive the Software bundled with other software, the total number of devices on which all versions of the Software is installed may not exceed your product entitlement. Certain Software licensed as part of a suite-based Grey Market Labs product may also require the purchase of a separate Grey Market Labs server license in order to use the Software on certain types of servers, in each case as specified in the Documentation.
    7. Term: The license is effective for a limited period of time (“Term”) in the event that such Term is set forth in the purchase agreement, otherwise the licenses shall be perpetual.
    8. Copies: You may not copy the Software.
    9. Subsidiaries; Managing Parties: You may permit use of the Software in accordance with the terms of this Agreement by a Subsidiary only for so long as such entity remains your Subsidiary. You also may permit a third party with which you enter into a contract to manage your information technology resources (“Managing Party”), provided that (i) the Managing Party only uses the Software for your internal operations and not for the benefit of another third party or the Managing Party, (ii) the Managing Party agrees to comply with the terms and conditions of this Agreement and (iii) you provide Grey Market Labs with written notice that a Managing Party will be using the Software on your behalf. You shall be responsible and fully liable for each Subsidiary’s and Managing Party’s compliance with or breach of the terms of this Agreement.
    10. General Restrictions: You may not, and you may not cause or allow any third party to: (i) decompile, disassemble or reverse-engineer the Software; or create or recreate the source code for the Software; (ii) remove, erase, obscure, or tamper with any copyright or any other product identification or proprietary rights notices, seal, or instructional label printed or stamped on, affixed to, or encoded or recorded in or on any Software or Documentation; or fail to preserve all copyright and other proprietary notices in all copies of the Software and Documentation made by you; (iii) lease, lend or use the Software for timesharing or service bureau purposes; sell, market, license, sublicense, distribute, or otherwise grant to any person or entity any right to use the Software except to the extent expressly permitted in this Agreement; or use the Software to provide, alone or in combination with any other product or service, any product or service to any person or entity, whether on a fee basis or otherwise; (iv) modify, adapt, tamper with, translate, or create derivative works of the Software or the Documentation; combine or merge any part of the Software or Documentation with or into any other software or documentation; or refer to or otherwise use the Software as part of any effort to develop software (including, without limitation, any routine, script, code, or program) having any functional attributes, visual expressions, or other features similar to those of the Software or to compete with Grey Market Labs; (v) except with Grey Market Labs’ prior written permission, publish any performance or benchmark tests or analysis relating to the Software; or (vi) attempt to do any of the foregoing. You may not run or operate the Software in a cloud, Internet-based computing, or similar on-demand computing environment unless your purchase agreement specifically provides such.
    11. Right to Access and Use Cloud Services. Subject to the terms of this Agreement, Grey Market Labs grants Customer a nonexclusive, nontransferable, worldwide right to access and use the Cloud Services during the applicable Subscription Period, and solely for Customer’s internal business use. The scope of permitted use of the Cloud Services depends upon the product entitlement specified in the applicable Purchase Order or purchase agreement (e.g., number of users). Customer must have an active subscription to the Cloud Services, or have an active Support agreement for the Cloud Services, as applicable, to continue to receive access to the Cloud Services. Unless otherwise specified by Grey Market L, Cloud Services that are designed to be accessed through software provided by Grey Market Labs may be accessed only through the software. Any software provided in connection with the Cloud Services must be uninstalled and destroyed at the end of the applicable Subscription Period.
    12. Managing Parties. If Customer enters into a contract in which a third party manages Customer’s information technology resources (“Managing Party”), Customer may enable the Managing Party to use the Cloud Services on Customer’s behalf, provided that: (a) the Managing Party only uses the Cloud Services for Customer’s internal operations; (b) the Managing Party agrees to be bound by the terms of this Agreement; (c) Customer provides Grey Market Labs with written notice that a Managing Party will be using the Cloud Services on Customer’s behalf; and (d) Customer remains responsible for all use of the Cloud Services by the Managing Party.
    13. User Subscriptions. User-based subscriptions may not be shared or used by more than one individual User but may be reassigned to new Users who are replacing former Users that have been terminated or otherwise no longer use the Cloud Services.
  3. CUSTOMER OBLIGATIONS.
    1. Customer Access. Customer is responsible for all activity occurring under Customer’s Cloud Services and Support accounts. Customer will provide Grey Market Labs with all information and assistance required to supply the Cloud Services or enable Customer’s use of the Cloud Services. Customer will immediately notify Grey Market Labs of any: (1) unauthorized account use or other suspected security breach; or (2) unauthorized use, copying or distribution of Cloud Services, Documentation or Customer Data.
    2. Customer Data. Customer must obtain all necessary rights and permissions from Users to provide the data to the Cloud Services and Grey Market Labs as contemplated herein. Customer represents and warrants that: (1) Customer has the legal rights and applicable consents to provide Customer Data to Grey Market Labs, (2) Customer will comply with all applicable laws for processing and transferring Customer Data to Grey Market Labs and (3) Customer retains adequate back-ups of Customer Data. Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data. The Cloud Services rely on Customer Data as supplied by Customer, and Grey Market Labs is not liable for the content of Customer Data. Grey Market Labs does not assume any duty or obligation to correct or modify Customer Data. Except as provided herein, Customer retains all right, title and interest in and to Customer Data.
    3. System Administrator. As needed, Customer will provide Grey Market Labs contact information for Customer’s system administrator, who is authorized to provide the information required to configure and manage the Cloud Services (“System Administrator”). Depending on the Cloud Services purchased, Grey Market Labs may provide Customer with a confidential access code to the administration tool, which may only be accessed by the System Administrator.
    4. Updated Information. Customer agrees to provide current and complete account Users’ information as necessary for Grey Market Labs to manage Customer’s account.
    5. Customer agrees that Grey Market Labs may rely on all information provided to Grey Market Labs by the Customer.
  4. Technical Support and Maintenance.
    1. The Grey Market Labs support is provided for the purchased subscription period. After the subscription period has expired, you have no further rights to receive any Support including Upgrades, Updates and telephone support. Grey Market Labs may change the Support offered at any time, effective as of the commencement of any renewal period. You will secure any and all privacy-related rights and permissions from individual persons as may be required by regulation, statute, or other law or your internal policies or guidelines in order to disclose to Grey Market Labs, in connection with Grey Market Labs’ performance of Support or otherwise under this Agreement, applicable personally identifiable information, data, and material.
  5. Limited Warranty and Disclaimer.
    1. Limited Warranty: Grey Market Labs warrants that, for a period of sixty (60) days from the purchase date (“Warranty Period”), the Software licensed hereunder will perform substantially in accordance with the Documentation (the “Limited Warranty”).
    2. Exclusive Remedy: In case of any breach of the above Limited Warranty, as your exclusive remedy and Grey Market Labs’ entire obligation and liability Grey Market Labs will (i) repair or replace the Software or (ii) if such repair or replacement would in Grey Market Labs’ opinion be commercially unreasonable, upon Grey Market Labs’ receipt of your written representation and promise that you have removed all instances of the Software and will not use the Software, refund the price paid by you for the applicable Software, excluding any third party costs incurred through the use of that Software.
    3. Exclusion of Warranty: THE ABOVE LIMITED WARRANTY WILL NOT APPLY IF: (i) THE SOFTWARE IS NOT USED IN ACCORDANCE WITH THIS AGREEMENT OR THE DOCUMENTATION, (ii) THE SOFTWARE OR ANY PART THEREOF HAS BEEN MODIFIED BY ANY ENTITY OTHER THAN Grey Market Labs OR (iii) A MALFUNCTION IN THE SOFTWARE HAS BEEN CAUSED BY ANY EQUIPMENT OR SOFTWARE NOT SUPPLIED BY Grey Market Labs.
    4. Disclaimer: EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE, THE SOFTWARE IS PROVIDED “AS IS” AND Grey Market Labs MAKES NO REPRESENTATIONS OR WARRANTIES, AND Grey Market Labs DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS, ORAL OR WRITTEN, EXPRESS OR IMPLIED, ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN TRADE, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR SYSTEMS INTEGRATION. WITHOUT LIMITING THE FOREGOING, Grey Market Labs MAKES NO WARRANTY, REPRESENTATION, OR GUARANTEE AS TO THE SOFTWARE’S USE OR PERFORMANCE AND DOES NOT WARRANT, REPRESENT, OR GUARANTEE THAT THE OPERATION OF THE SOFTWARE WILL BE FAILSAFE, UNINTERRUPTED, OR FREE FROM ERRORS OR DEFECTS OR THAT THE SOFTWARE WILL PROTECT AGAINST ALL POSSIBLE THREATS.
    5. High Risk Systems Terms: THE SOFTWARE MAY FAIL AND IS NOT DESIGNED, DEVELOPED, TESTED, OR INTENDED TO BE RELIABLE IN THE CONTEXT OF HIGH RISK SYSTEMS. WITHOUT LIMITING ANYTHING ELSE, Grey Market Labs HAS NO RESPONSIBILITY FOR, AND YOU WILL INDEMNIFY AND HOLD HARMLESS Grey Market Labs FROM, ALL CLAIMS, SUITS, DEMANDS, AND PROCEEDINGS ALLEGING, CLAIMING, SEEKING, OR ASSERTING, ANY LIABILITY, LOSS, OBLIGATION, RISK, COST, DAMAGE, AWARD, PENALTY, SETTLEMENT, JUDGMENT, FINE, OR EXPENSES (INCLUDING ATTORNEYS FEES) ARISING FROM OR IN CONNECTION WITH YOUR USE OF THE SOFTWARE ON OR IN A HIGH RISK SYSTEM, INCLUDING, WITHOUT LIMITATION, THOSE THAT (i) COULD HAVE BEEN PREVENTED BY DEPLOYMENT OF FAILSAFE OR FAULT-TOLERANT FEATURES TO THE HIGH RISK SYSTEM, (ii) ARE BASED ON A CLAIM, ALLEGATION, OR ASSERTION THAT THE FUNCTIONING OF THE HIGH RISK SYSTEM DEPENDS OR DEPENDED ON THE FUNCTIONING OF THE SOFTWARE OR THAT THE FAILURE OF THE SOFTWARE CAUSED A HIGH RISK SYSTEM TO FAIL.
  6. Limitation of Remedies and Damages.
    1. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT , CONTRACT OR OTHERWISE, SHALL EITHER PARTY BE LIABLE TO THE OTHER UNDER THIS AGREEMENT OR IN CONNECTION WITH ITS SUBJECT MATTER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL, OR EXTRA-CONTRACTUAL DAMAGES OF ANY KIND, LOSS OF GOODWILL, LOSS OF PERSONNEL SALARIES, LOST PROFITS OR REVENUE, DAMAGES DUE TO WORK STOPPAGE AND/OR COMPUTER FAILURE OR MALFUNCTION, AND/OR COSTS OF PROCURING SUBSTITUTE SOFTWARE OR SERVICES, WHETHER OR NOT FORESEEABLE, EVEN IF THE EXCLUSIVE REMEDIES PROVIDED BY THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE AND EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OR PROBABILITY OF SUCH DAMAGES.
    2. REGARDLESS OF WHETHER THE CLAIM FOR SUCH DAMAGES IS BASED IN CONTRACT, TORT AND/OR ANY OTHER LEGAL THEORY, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY FOR DIRECT DAMAGES UNDER THIS AGREEMENT OR IN CONNECTION WITH ITS SUBJECT MATTER EXCEED THE AMOUNT OF TOTAL FEES PAID OR PAYABLE BY YOU FOR THE SOFTWARE GIVING RISE TO SUCH CLAIM.
    3. No provision of this Agreement shall exclude or limit in any way (i) the liability of either party for death or personal injury caused by negligence or (ii) your liability for excess usage of and/or any breach of Grey Market Labs’ intellectual property rights in the Software, or (iv) fraud.
    4. THE LIMITATION OF LIABILITY IN THIS SECTION IS BASED ON THE FACT THAT END USERS USE THEIR COMPUTERS FOR DIFFERENT PURPOSES. THEREFORE, ONLY YOU CAN IMPLEMENT BACK-UP PLANS AND SAFEGUARDS APPROPRIATE TO YOUR NEEDS IN THE EVENT THAT AN ERROR IN THE SOFTWARE CAUSES COMPUTER PROBLEMS AND RELATED DATA LOSSES. FOR THESE BUSINESS REASONS, YOU AGREE TO THE LIMITATIONS OF LIABILITY IN THIS SECTION AND ACKNOWLEDGE THAT WITHOUT YOUR AGREEMENT TO THIS PROVISION, THE FEE CHARGED FOR THE SOFTWARE WOULD BE HIGHER.
  7. Intellectual Property Indemnity.
    1. Indemnity: Grey Market Labs will indemnify, and, at its election, have the right to intervene to defend, you against claims asserted against you in a suit or action if: (i) the claim is for direct patent infringement or direct copyright infringement, or for Grey Market Labs’ trade secret misappropriation and (ii) the claim is (A)asserted against the Software, alone and not in combination with anything or (B) a combination of the Software.
    2. Exclusions: Notwithstanding anything else in this Agreement, Grey Market Labs has no obligation to indemnify or defend you for claims asserted, in whole or in part, against: (i) technology or designs that you gave to Grey Market Labs; (ii) modifications or programming to Software that were made by anyone other than Grey Market Labs; or (iii) the Software’s alleged implementation of some or all of a Standard.
    3. Conditions: As a condition of Grey Market Labs’ obligations under this Section 7, you must provide to Grey Market Labs: (i) prompt written notice of the claim and your agreement to give Grey Market Labs control over the defense and settlement of the claim; and (ii) your full and timely cooperation.
    4. Grey Market Labs’ Consent: Grey Market Labs will not be responsible for any cost, expense, or compromise that you make or incur without Grey Market Labs’ prior written consent.
    5. Remedies: Grey Market Labs may, at its sole discretion and at is expense: (i) procure for you the right to continue using the Software; (ii) replace the Software with a non-infringing Software; (iii) modify the Software so that it becomes non-infringing; or (iv) upon your return of the Software to Grey Market Labs, and/or removal of the Software from your systems, refund the residual value of the purchase price paid by you for the infringing Software, depreciated using a straight-line method of depreciation over a three (3) year period from the date of delivery of the Software to you.
    6. Personal Indemnity: The foregoing indemnity is personal to you. You may not transfer or to anyone, including your customers.
    7. Exclusive Remedy: The indemnity section states Grey Market Labs’ entire obligation and your exclusive remedy for claims of patent or copyright infringement, or trade secret misappropriation, made in whole or part against the Software.
    8. Nothing contained herein shall be construed in derogation of the U.S. Department of Justice’s right to defend any claim or suit brought against the U.S. pursuant to its jurisdictional statute 28 U.S.C. § 516.
  8. Termination.
    1. When the End User is an instrumentality of the U.S., recourse against the United States for any alleged breach of this Agreement must be brought as a dispute under the contract Disputes Clause (Contract Disputes Act). During any dispute under the Disputes Clause, Grey Market Labs shall proceed diligently with performance of this Agreement, pending final resolution of any request for relief, claim, appeal, or action arising under the Agreement, and comply with any decision of the Contracting Officer. Upon such termination, you shall promptly return or destroy all copies of the Software and Documentation.
  9. Additional Terms.
    1. Evaluation Software: If the Software has been identified by Grey Market Labs as “Evaluation” Software, then the provisions of this section apply and shall supersede any other conflicting term of this Agreement. Your royalty-free, nontransferable, limited license to use the Evaluation Software, for evaluation purposes only, is limited to thirty (30) days unless otherwise agreed to in writing by Grey Market Labs. The Evaluation Software may contain errors or other problems that could cause system or other failures and data loss. Consequently, Evaluation Software is provided to you “AS IS” and Grey Market Labs disclaims any warranty or liability obligations to you of any kind. Support is not available for Evaluation Software. Any information about the Evaluation Software gathered from its use shall be used solely for evaluation purposes and shall not be provided to any third parties. The restrictions described in Section 3(g) apply. If you fail to destroy the Evaluation Software after the evaluation period has expired, Grey Market Labs may, at its discretion, invoice you in an amount equal to the Grey Market Labs List Price for the Software and you shall pay such invoice upon receipt. WHERE LEGAL LIABILITY CANNOT BE EXCLUDED, BUT MAY BE LIMITED, Grey Market Labs’ LIABILITY AND THAT OF ITS SUPPLIERS AND AUTHORIZED PARTNERS UNDER THIS AGREEMENT RELATED TO EVALUATION SOFTWARE, OR IN CONNECTION WITH EVALUATION SOFTWARE, SHALL BE LIMITED TO THE SUM OF FIFTY (50) U.S. DOLLARS OR THE EQUIVALENT IN LOCAL CURRENCY IN TOTAL.
    2. Beta Software: If the Software that you have received has been identified by Grey Market Labs as “Beta” Software, then the provisions of Section 9(a) above shall apply accordingly. Grey Market Labs has no obligation to you to further develop or publicly release the Beta Software. Support is not available for Beta Software. If requested by Grey Market Labs, you will provide feedback to Grey Market Labs regarding testing and use of the Beta Software, including error or bug reports. You agree to grant Grey Market Labs a perpetual, non-exclusive, royalty-free, worldwide license to use, copy, distribute and make derivative works and incorporate the feedback into any Grey Market Labs product at Grey Market Labs’ sole discretion. Upon receipt of a later unreleased version of the Beta Software or release by Grey Market Labs of a publicly released commercial version of the Beta Software, you agree to return or destroy all earlier Beta Software received from Grey Market Labs.
    3. “Free” or “Open-Source” Software: The Software may include components (including, without limitation, programs, applications, tools, utilities, libraries, and other programming code) that are made available from third parties under a free or open source software licensing model (“FOSS Code”). FOSS Code components included with the Software are redistributed by Grey Market Labs under the terms of the applicable FOSS Code license for such component; your receipt of FOSS Code components from Grey Market Labs under this Agreement neither enlarges nor curtails your rights or obligations defined by the FOSS Code license applicable to the FOSS Code component. Copies of the FOSS Code licenses for FOSS Code components included with Software are included with or referenced in the Software’s Documentation.
  10. Notice to U.S. Government End Users.
    1. The Software and accompanying Documentation are deemed to be “commercial computer software” and “commercial computer software documentation”, respectively, pursuant to and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the Software and accompanying Documentation by the United States Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.
  11. Privacy and Collection of Personal or System Information.
    1. The Software, Support or service subscription may employ applications and tools to collect personally identifiable, sensitive or other information about you and users (e.g., including, without limitation, your and users’ name, address, e-mail address and payment details), their computers, files stored on their computers, or their computers’ interactions with other computers (e.g., including, without limitation, information regarding network, licenses used, hardware type, model, hard disk size, CPU type, disk type, RAM size, 32 or 64 bit architecture, operating system types, versions, locale, BIOS version, BIOS model, total scanners deployed, database size, system telemetry, device ID, IP address, location, content, Grey Market Labs products installed, Grey Market Labs components, processes and services information, frequency and details of update of Grey Market Labs components, information about third party products installed, extracts of logs created by Grey Market Labs, usage patterns of Grey Market Labs products and specific features, etc.) (collectively, “Data”).
    2. The collection of this Data may be necessary to provide you and users with the relevant Software, Support or service subscription functionalities as ordered (e.g., including, without limitation, detecting and reporting threats and vulnerabilities on your and users’ computer network), to enable Grey Market Labs to improve our Software, Support or service subscription (e.g., including, without limitation, content synchronization, device tracking, troubleshooting, etc.), and to further or improve overall security for you and users. You may be required to uninstall the Software or disable Support or its service subscription to stop further Data collection that supports these functions.
  12. Audit.
    1. Upon thirty (30) days’ prior notice Grey Market Labs may request, and you must provide, a Software-facilitated system-generated report (the “System Report”) verifying your Software deployment. You acknowledge that the System Report is based on technological features of the Software that provide Software deployment verification. If the Software does not contain technological features that provide Software deployment verification, you will prepare and provide to Grey Market Labs within the thirty (30)-day period an accurate Software deployment verification report for the Software. Grey Market Labs will only request the System Report (or your prepared Software deployment verification report) one time per year and will not unreasonably interfere with the conduct of your business. However, if a System Report or your prepared Software deployment verification report identifies that you are out of compliance with the license terms of this Agreement, you will be required to purchase the additional licenses associated with the licenses and/or support and an out-of-compliance fee may also be assessed.
    2. Within thirty (30) days’ of conclusion of a license term, Customer must provide System Report confirming removal of any Grey Market Labs software or technology. If a System Report or your prepared Software deployment verification report identifies that you are out of compliance with the license terms of this Agreement, you will be required to purchase the additional licenses and pay fees for the period of unauthorized Software usage associated with the licenses and/or support.
    3. All audits will be conducts in accordance with Government security requirements.
  13. Export Controls.
    1. You acknowledge that the Software is subject to U.S. and when applicable, European Union export regulations. You shall comply with applicable export and import laws and regulations for the jurisdiction in which the Software will be imported and/or exported. You shall not export the Software to any individual, entity or country prohibited by applicable law or regulation. You are responsible, at your own expense, for any local government permits, licenses or approvals required for importing and/or exporting the Software. If Grey Market Labs receives notice that you are or you become identified as a sanctioned or restricted party under applicable law, then Grey Market Labs will not be obligated to perform any of its obligations under this license if such performance would result in violation of the sanctions or restrictions.
  14. Governing Law.
    1. All disputes arising out of or relating to this Agreement or its subject matter will be governed by the substantive Federal laws of the United States. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. The Uniform Computer Information Transactions Act as enacted shall not apply.
  15. Confidentiality.
    1. Each party hereto acknowledges that by reason of its relationship with the other party hereunder, it may have access to confidential information and materials concerning the other party’s business, technology, and/or products that is confidential to the other party (“Confidential Information”). Each party’s Confidential Information is of substantial value to the party, which value could be impaired if such information was disclosed to third parties or used in violation of this Agreement. Written or other tangible Confidential Information must at the time of disclosure be identified and labeled as Confidential Information belonging to the disclosing party. When disclosed orally or visually, Confidential Information must be identified as confidential at the time of the disclosure, with subsequent confirmation in writing within fifteen (15) days after disclosure. Each party agrees that it will not use in any way for its own account or the account of any third party, such Confidential Information, except as authorized under this Agreement, and will protect Confidential Information at least to the same extent as it protects its own Confidential Information and to the same extent that a reasonable person would protect such Confidential Information. Neither party may use the other party’s Confidential Information except to perform its duties or exercise its rights under this Agreement. The Confidential Information restrictions will not apply to Confidential Information that is (i) already known to the receiving party at the time of access hereunder, (ii) becomes publicly available through no wrongful act of the receiving party, (iii) independently developed by the receiving party without benefit of the disclosing party’s Confidential Information, (iv) has been rightfully received from a third party not under obligation of confidentiality or (v) is required to be disclosed by law, provided the party compelled to disclose the Confidential Information provides the party owning the Confidential Information with prior written notice of disclosure adequate for the owning party to take reasonable action to prevent such disclosure, where reasonably possible. Unless otherwise agreed to by both parties, upon termination of this Agreement or an applicable Addendum, each party will return the other party’s Confidential Information. Grey Market Labs recognizes that Federal agencies are subject to the Freedom of Information Act, 5 U.S.C. 552, which requires that certain information be released, despite being characterized as “confidential” by the vendor.
  16. Miscellaneous.
    1. Except for actions for non-payment or breach of Grey Market Labs’ proprietary rights in the Software and Documentation, no action, regardless of form, arising out of this Agreement may be brought by either party more than six (6) years after a party knew or should have known of the claim.
    2. Any terms of this Agreement which by their nature should survive the termination of this Agreement shall survive such termination.
    3. The Anti-Assignment Act, 41 USC 6305, prohibits the assignment of Government contracts without the Government’s prior approval. Procedures for securing such approval are set forth in FAR 42.1204.
    4. This Agreement, including all documents incorporated by reference, together with the underlying GSA Schedule Contract, Schedule Pricelist, Purchase Order(s), represents the entire agreement between the parties and expressly supersedes and cancels any other communication, representation or advertising whether oral or written, on the subjects herein. If you issue an order to an Authorized Partner or to Grey Market Labs and the terms and conditions of the order conflict with the terms and conditions of a negotiated Purchase Order signed by both parties shall control. This Agreement may not be modified except by a written addendum issued by a duly authorized representative of Grey Market Labs. No provision hereof shall be deemed waived unless such waiver shall be in writing and signed by Grey Market Labs. If any provision of this Agreement is held invalid, unenforceable, invalid, or prohibited under law, then such provision will be deemed restated to reflect the original intention of the parties as nearly as possible in accordance with applicable law and the remainder of this Agreement shall continue in full force and effect.
    5. All notices, requests, demands and determinations for Grey Market Labs under this Agreement (other than routine operational communications) shall be sent to: the applicable entity address in Section 1(g) of this Agreement addressed to “Attention: Legal Department”.