As of: 1 March, 2021
THIS END USER AGREEMENT (THE “AGREEMENT“) IS A LEGAL AGREEMENT BETWEEN YOU, EITHER AS AN INDIVIDUAL, COMPANY OR OTHER LEGAL ENTITY (“YOU“) AND O.I.J. ORCHESTRA GROUP LTD., (TOGETHER WITH ITS AFFILIATES, THE “COMPANY“). PLEASE READ THIS AGREEMENT CAREFULLY BEFORE INSTALLING THE “HARMONY PURPLE” SOFTWARE. ANY USE OF THE “HARMONY PURPLE” SOFTWARE INCLUDING ANY REVISIONS, MODIFICATIONS, ENHANCEMENTS, UPDATES AND/OR UPGRADES THERETO (HEREINAFTER “SOFTWARE”) SUPPLIED BY THE COMPANY ARE AND SHALL BE, SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT (AS MAY BE AMENDED FROM TIME TO TIME BY PROVIDING YOU A WRITTEN NOTICE), UNLESS YOU AND THE COMPANY HAVE EXECUTED A SEPARATE AGREEMENT IN WRITING, SIGNED BY BOTH YOU AND THE COMPANY WHICH EXPRESSLY SUPERSEDES THIS AGREEMENT.
BY DOWNLOADING, INSTALLING, OPERATING OR OTHERWISE USING THE SOFTWARE, YOU ARE EXPRESSLY AND EXPLICITLY ACCEPTING THIS AGREEMENT AND AGREEING TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THIS AGREEMENT OR ARE NOT WILLING TO BE BOUND BY IT, DO NOT DOWNLOAD, INSTALL, OPERATE OR OTHERWISE USE THE SOFTWARE AND YOU MUST PROMPTLY UNINSTALL THE SOFTWARE, AND ANY PART THEREOF, FROM YOUR SYSTEM.
- LICENSE GRANT AND RESTRICTIONS.
1.1. The Software. The commercial Software is proprietary software provided to you in binary executable form for the regular and standard purposes the Software was designed for, all in accordance with the terms set forth in this Agreement. The term “Software” includes the Software and its binary code, compilation of data, or visual display resulting from the operation of the Software (including any updated and upgrades thereof), and any associated materials, equipment, systems, specifications and documentation as they may be amended, adjusted, changed and upgraded.
1.2. Right to Use. Subject to the terms and conditions of this Agreement, the Company hereby grants to you, and you accept, a limited, worldwide, non-exclusive, non-sublicensable, non-transferable and revocable right to use the Software solely in binary executable form and solely for your internal business purposes, all in accordance with the terms set forth in this Agreement and in accordance with the Software’s documentations. You may not make any commercial use of the Software, nor grant any third party any right to use the Software, whether or not for consideration. All other rights in the Software are expressly reserved by the Company. The conditions of this Agreement apply to any update, upgrade and additional component added to the software originally provided to you. In the case that these include a separate licensing agreement, its conditions will be in addition to the conditions of this Agreement, unless a separate agreement mutually executed by the parties specifies explicitly that its conditions prevail over this Agreement.
1.3. Prohibited Uses. Except as specifically permitted herein, without the prior written consent of the Company, you agree not to, directly or indirectly: (i) use, modify, incorporate into or with other software, or create a derivative work of any part of the Software; (ii) sell, resell, license (or sub-license), lease, assign, transfer, pledge, or share your rights under this Agreement with or to anyone else; (iii) copy, distribute, publish or reproduce the Software; (iv) disclose, publish or otherwise make publicly available the results of any benchmarking of the Software, or use such results for your own competing software development activities; (v) modify, disassemble, decompile, reverse engineer, revise or enhance the Software or attempt to reconstruct or discover any source code or underlying ideas or algorithms of the Software, except to the extent that such activities are expressly permitted by applicable law in the jurisdiction of use notwithstanding this prohibition; (vi) remove or otherwise alter any of the Company’ trademarks, logos, copyrights, notices or other proprietary notices or indicia, if any, fixed or attached to the Software as delivered to you; (vii) ship, transfer or export the Software into any country, or make available or use the Software in any manner which is in violation of applicable export control laws, restrictions or regulations, and /or (viii) develop any other product containing any of the concepts or ideas contained in the Software. (ix) Use of “false-positive injunction” capability is only permitted on your internal-organizational computer networks and systems and you are not in any way or form permitted to use the false-positive injunction in any third party computer network, system or component.
1.4. Lawful use. The Software should be installed in accordance with the instructions set forth in the Software’s documentation. You represent and warrant that: (i) you shall only use the Software in a manner that complies with all applicable laws in the jurisdiction in which you uses it, including, but not limited to, applicable restrictions concerning the protection of privacy and intellectual property rights; and (ii) you have and will retain all rights, permissions and licenses necessary to enter and perform your obligations hereunder. The Software is provided on a per-IP address basis and per-virtual machine basis and limited to the number of IP addresses and virtual machines as specified in a separate agreement between you and the Company or its resellers or distributors.
2. OWNERSHIP. The Software and the related documentation are licensed and not sold. The Company and its licensors are and shall retain all right, interest and ownership in and to the Software and the related documentation, including without limitation in and to any and 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. This Agreement does not convey to you an interest in or to the Software but only a limited revocable right to use the Software in accordance with the terms of this Agreement. Nothing in this Agreement constitutes a waiver of the Company’ intellectual property rights under any law. If you contact the Company with feedback data (e.g., questions, comments, suggestions or the like) regarding the Software (collectively, “Feedback”), such Feedback shall be deemed non-confidential, and the Company shall have a non-exclusive, royalty free, worldwide and perpetual license to use or incorporate such Feedback into the Software and/or other current or future products or services of the Company (without your approval and without further compensation to you). The Company may collect, disclose, publish and use in any other manner data and anonymous information which derives from the use of the Software (i.e., non-identifiable information, aggregated and analytics information, vulnerability data) (“Analytics Information“)) without referencing to you in any manner, in order to provide and improve the Company’ programs and services and for any legitimate business purpose. The Company is and shall remain the sole owner of the Analytics Information.
3.THIRD PARTY COMPONENTS. The Software is based on software which is developed and owned by The Company and/or its licensors. The Software may use or include third party software, files and components that are subject to open source and third party license terms (“Third Party Components“). Your right to use such Third Party Components as part of, or in connection with, the Software is subject to any applicable acknowledgements and license terms accompanying such Third Party Components, contained therein or related thereto. If there is a conflict between the licensing terms of such Third Party Components and this Agreement, the licensing terms of the Third Party Components shall prevail in connection with the related Third Party Components. Such Third Party Components are provided on an “AS IS” basis without any warranty of any kind and shall be subject to any and all limitations and conditions required by such third parties. Under no circumstances shall the Software or any portion thereof (except for the Third Party Components contained therein) be deemed to be “open source” or “publicly available” software. A list of Third Party Components is available in the Software or its documentation (the “About Box“) and will be updated from time to time. The licenses of certain Third Party Components may require the provision of the source code of these Third Party Components. With respect to any licenses of Third Party Components that require the provision of the open source code of these Components, the Company will provide you and any third party, during a period set forth by each such license, for a charge of no more than the Company’ cost of physically performing source distribution, a complete machine-readable copy of the corresponding source code, on a medium customarily used for software interchange. For that purpose, you should contact the Company at: firstname.lastname@example.org
4. REFERENCE CUSTOMER. You agree that the Company may identify you as a user of the Software and use your trademark and/or logo (i) in sales presentations, promotional/marketing materials, and press releases, and (ii) in order to develop a brief customer profile for use by the Company on the Company’ website and other promotional channels for promotional purposes.
5. LIMITED WARRANTY, EXCLUSIONS AND DISCLAIMERS.
5.1. Each party represents and warrants to the other (i) that this Agreement has been duly executed and delivered by a duly authorized official and constitutes a valid and binding agreement enforceable against such party in accordance with its terms, (ii) that the execution, delivery and performance of this Agreement shall not conflict with or result in a breach of any other agreement to which it is a party.
5.2. The Company represents and warrants that, under normal authorized use the Software shall substantially perform in conformance with its documentation. As your sole and exclusive remedy and The Company’ sole liability for breach of this warranty, The Company shall repair or replace the Software.
5.3. The warranty set forth shall not apply if the failure of the Software results from or is otherwise attributable to: (i) repair, maintenance or modification of the Software by persons other than the Company’ authorized third party; (ii) accident, negligence, abuse or misuse of the Software; (iii) use of the Software other than in accordance with the Software’s manuals, specifications or documentation; or (iv) the combination of the Software with equipment or software not authorized or provided by the Company or otherwise approved by the Company in the Software’s manuals, specifications or documentation.
5.4. OTHER THAN AS EXPLICITLY STATED UNDER THIS AGREEMENT TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE AND THE DOCUMENTATIONS ARE PROVIDED ON AN “AS IS” BASIS AND ITS USE IS ENTIRELY AT YOUR OWN RISK. THE COMPANY DOES NOT WARRANT THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT THE SOFTWARE’S OPERATION WILL BE SECURE, UNINTERRUPTED, ERROR-FREE, FREE OF VIRUSES, BUGS, WORMS, OTHER HARMFUL COMPONENTS OR OTHER PROGRAM LIMITATIONS. TO THE EXTENT ALLOWED BY LAW, THE COMPANY EXPRESSLY DISCLAIMS ALL EXPRESS WARRANTIES AND ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INTERFERENCE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. THE COMPANY AGREES TO IMPLEMENT REASONABLE MEASURES, BUT NO LESS THAN INDUSTRY STANDARD SECURITY MEASURES, TO REVEAL WHETHER YOUR COMPUTER SYSTEMS ARE VULNERABLE TO THIRD PARTY SECURITY ATTACKS. HOWEVER, THE COMPANY DOES NOT GUARANTEE THAT USE OF THE SOFTWARE WILL 100% ENSURE THAT YOUR COMPUTER SYSTEMS ARE NOT VULNERABLE TO THIRD PARTY SECURITY ATTACKS. IN ADDITION, DUE TO THE CONTINUAL DEVELOPMENT OF NEW TECHNIQUES FOR INTRUDING UPON AND ATTACKING NETWORKS, COMPANY DOES NOT WARRANT THAT THE SOFTWARE OR ANY EQUIPMENT OR SYSTEM SUPPLIED BY THE COMPANY WITH THE SOFTWARE (IF ANY), WILL BE FREE OF VULNERABILITY TO INTRUSION OR ATTACK. USE OF THE FALSE-POSITIVE INJUNCTION FUNCTION MAY CAUSE CERTAIN DAMAGE TO YOUR COMPUTER NETWORKS AND SYSTEMS AND IS ENTIRELY AT YOUR OWN RISK.
6. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW THE COMPANY, ITS LICENSORS, AFFILIATES, DISTRIBUTORS AND RESELLERS SHALL NOT BE LIABLE WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, TO YOU OR ANY THIRD PARTY FOR ANY LOSS OR DAMAGE, INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING BUT NOT LIMITED TO, ANY LOSS OR DAMAGE TO BUSINESS EARNINGS, LOST PROFITS OR GOODWILL AND LOST OR DAMAGED DATA OR DOCUMENTATION), SUFFERED BY ANY PERSON, ARISING FROM, RELATED WITH, AND/OR CONNECTED TO, ANY USE OF OR INABILITY TO USE THE SOFTWARE, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING AND TO THE MAXIMUM EXTENT LEGALLY PERMISSIBLE, THE COMPANY’S, ITS LICENSORS’, AFFILIATES’ DISTRIBUTORS’ AND RESELLERS’ TOTAL AGGREGATE LIABILITY FOR ALL DAMAGES OR LOSSES WHATSOEVER ARISING HEREUNDER OR IN CONNECTION WITH YOUR USE OR INABILITY TO USE THE SOFTWARE SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO THE COMPANY UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. INASMUCH AS SOME JURISDICTIONS DO NOT ALLOW EXCLUSIONS OR LIMITATIONS AS SET FORTH HEREIN, THE FULL EXTENT OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY.
7. TERM AND TERMINATION. This Agreement is effective upon downloading, installing, operating or otherwise using the Software. This Agreement will remain in force until terminated in accordance with this Agreement. The Company may terminate this Agreement for convenience, by providing you with at least thirty (30) days prior written notice of cancellation. Upon termination or expiration of this Agreement: (i) the license granted under this Agreement shall expire and you shall discontinue all further use of the Software; (ii) you shall immediately remove the Software from all hard drives, networks and other storage media and destroy all copies of the Software in your possession or under its control and certify such destruction in a written notice to the Company made within seven (7) days of the Company request; and (iii) any sums paid by you until the date of termination are non-refundable and you shall not be relieved of its duty to discharge in full all due sums owed by you to the Company under this Agreement, which sums shall become immediately due and payable on the date of termination or expiration the Agreement. Sections 1.3. 2, 3, 4, 5, 6, 7 and 8 shall survive any termination of this Agreement. Termination of this Agreement shall not limit the Company from pursuing any other remedies available to it under the applicable law.
8. PRODUCT FUNCTIONALITY. The Software performs automated vulnerability prioritization. You can see real time results of the tests on your management console available using our Software or using service provider appointed by you (MSSP). As the Software is installed on premise, all information recorded kept at your own virtual appliance and at your control. The Company has taken reasonable measures to encrypt and secure the Software and its results, however it is your responsibility to secure your own network. You can also choose to delete logs. The scope of the automated test is defined by you. You can choose to scan or not scan certain IP-based devices as well as schedule the scan to a desired date and time. Being a continuous system, you can see real time results of the Software’s findings in the management console 24/7. To minimize adverse effects you should provide credentials, this will enable Harmony Purple to use “white box” methods that reduce the bandwidth required to extract system data. Harmony Purple deletes scanning information from all IP-based devices after the scan is over, no viruses or malicious software is left in the network. Use of the false-positive injunction may involve penetration to your systems and may potentially cause harm to your computer networks and systems.
9. MISCELLANEOUS. This Agreement represents the complete agreement concerning the licenses granted herein and the subject matter hereof and may be amended only by a written agreement executed by both parties. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. If any provision of this Agreement is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable. You may not assign its rights or obligations under this Agreement without the prior written consent of The Company. The Company may assign or transfer its rights and/or obligations under this Agreement without restriction or notification. This Agreement shall be governed by and construed under the laws of the State of Israel without reference to principles and laws relating to the conflict of laws. The competent courts of the District of Tel-Aviv, Israel shall have the exclusive jurisdiction with respect to any dispute and action arising under or in relation to this Agreement. This Agreement does not, and shall not be construed to create any relationship, partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the parties hereto. This Agreement may be executed manually, electronically, in facsimile counterparts, each of which counterpart, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same agreement.
I HAVE READ AND UNDERSTOOD THIS AGREEMENT AND AGREE TO BE BOUND BY ALL OF ITS TERMS AND CONDITIONS.