1.1. Documentation means the documentation for the Software generally supplied by Gravwell to assist its customers in their use of the Software.
1.2. Maintenance and Support Term means the period in which Customer is entitled to receive support services from Gravwell, The length of the Maintenance and Support Term shall be listed on the applicable Order Form and shall commence on the date of delivery of the Software. Application Extensions or new functional modules are not included in maintenance and support and may be subject to additional fees.
1.3. Order Form means Gravwell’s order form or other ordering document signed or referenced by Customer or its authorized reseller which identifies the specific Software and/or Services ordered, the Volume Limitations, and the price agreed upon by the parties.
1.4. Services means Gravwell’s professional services (as described in Section 10.2) herein.
1.5. Software means those Gravwell products listed on the applicable Order Form.
1.6. Software Term means the period in which Customer is authorized to utilize the Software. Each Software Term shall be listed on the applicable Order Form.
2.1. License to products
3.1. If Customer is purchasing the Software through a Gravwell authorized reseller, then the fees shall be as set forth between Customer and reseller and the applicable fees shall be paid directly to the reseller and Section 3.2 shall not apply.
3.2. Customer agrees to pay the fees, charges, and other amounts in accordance with the Order Form from the date of invoice. All fees are nonrefundable, unless otherwise stated herein. Customer shall be responsible for remitting all taxes levied on any transaction under this Agreement, including, without limitation, all federal, state, and local sales taxes, levies and assessments, and local withholding taxes in Customer’s jurisdiction, if any, excluding, however, any taxes based on Gravwell's income. In the event Customer is required to withhold taxes from its payment or withholding taxes are subsequently required to be paid to a local taxing jurisdiction, Customer is obligated to pay such tax, and Gravwell as applicable, will receive the Order Form payment amount as agreed to net of any such taxes. Customer shall provide to Gravwell written evidence that such withholding tax payment was made.
4.1. Software warranty Gravwell warrants that for a period of ninety days following the initial delivery of any Software to Customer the Software will conform, in all material respects, with the applicable Documentation. For a breach of the above warranty, Gravwell will, at no additional cost to Customer, use commercially reasonable efforts to provide remedial services necessary to enable the Software to conform to the warranty. Customer will provide Gravwell with a reasonable opportunity to remedy any breach and reasonable assistance in remedying any defects. If Gravwell is unable to restore such functionality, Customer shall be entitled to terminate the applicable Order Form and receive a pro rata refund of the fees paid. The remedies set out in this subsection are Customer’s sole remedies for breach of the above warranty. Headings or titles in the Documentation are for information only and do not imply any warranties.
4.2. Disclaimer Gravwell DOES NOT REPRESENT THAT THE SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE, OR WILL MEET CUSTOMER’S REQUIREMENTS. EXCEPT FOR THE WARRANTY ABOVE, Gravwell MAKES NO OTHER WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. Gravwell MAKES NO WARRANTY THAT ALL SECURITY RISKS OR THREATS WILL BE DETECTED BY USE OF THE SOFTWARE OR THAT FALSE POSITIVES WILL NOT BE FOUND.
6.1. Volume Limitations. Customer understands and acknowledges that the Software may track its usage and data ingestion rates for license validation purposes. Full information on what data we track and how it is used is available in the Gravwell Transparency and Data Use
7.1. Confidential Information. “Confidential Information” means information provided by one party to the other party which is designated in writing as confidential or proprietary, as well as information which a reasonable person familiar with the disclosing party’s business and the industry in which it operates would know is of a confidential or proprietary nature. A party will not disclose the other party’s Confidential Information to any third party without the prior written consent of the other party, nor make use of any of the other party’s Confidential Information except in its performance under this Agreement. Each party accepts responsibility for the actions of its agents or employees and shall protect the other party’s Confidential Information in the same manner as it protects its own Confidential Information, but in no event with less than reasonable care. The parties expressly agree that the terms and pricing of this Agreement are Confidential Information. A receiving party shall promptly notify the disclosing party upon becoming aware of a breach or threatened breach hereunder and shall cooperate with any reasonable request of the disclosing party in enforcing its rights.
7.2. Exclusions. Information will not be deemed Confidential Information if such information: (i) is known prior to receipt from the disclosing party, without any obligation of confidentiality; (ii) becomes known to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise publicly available, except through a breach of this Agreement; or (iv) is independently developed by the receiving party without use of the disclosing party’s Confidential Information. The receiving party may disclose Confidential Information pursuant to the requirements of applicable law, legal process or government regulation, provided that, unless prohibited from doing so by law enforcement or court order, the receiving party gives the disclosing party reasonable prior written notice, and such disclosure is otherwise limited to the required disclosure
8.1. The Software Term will automatically renew for an additional one year term unless (i) otherwise indicated on the Order Form or (ii) either party provides the other with written notice of its election not to renew at least 30 days prior to the anniversary date. Any renewal will be invoiced at the prevailing list price rate for the tier applicable at the time of renewal unless otherwise indicated on the Order Form. In connection with any renewal term, Gravwell reserves the right to change the rates, applicable charges and usage policies and to introduce new charges, for any subsequent Subscription Term upon providing Customer written notice thereof (which may be provided by e-mail) at least 60 days prior to the end of the applicable term.
8.2. This Agreement or an Order Form may be terminated: (i) by either party if the other party is adjudicated as bankrupt, or if a petition in bankruptcy is filed against the other party and such petition is not discharged within sixty days of such filing; or (ii) by either party if the other party materially breaches this Agreement or the Order Form and fails to cure such breach to such party’s reasonable satisfaction within thirty days following receipt of written notice thereof. Customer’s license to use the Software shall terminate upon the expiration of the applicable Software Term. Upon any termination of this Agreement or an Order Form by Gravwell, all applicable licenses are revoked and Customer shall immediately cease use of the applicable Software and certify in writing to Gravwell within thirty days that Customer has destroyed or returned to Gravwell such Software and all copies thereof. Termination of this Agreement or a license granted hereunder shall not relieve Customer of its obligation to pay all fees that have accrued, have been paid, or have become payable by Customer hereunder. All provisions of this Agreement which by their nature are intended to survive the termination of this Agreement shall survive such termination.
11.1. Miscellaneous. (a) This Agreement shall be construed in accordance with and governed for all purposes by the laws of the State of California (for customers located in North America), or England & Wales (for customers located outside of North America), each excluding its respective choice of law provisions and each party consents and submits to the jurisdiction and forum of the state and federal courts in the State of California (for customers located in North America) or London, England (for customers located outside of North America) for all questions and controversies arising out of this Agreement and waives all objections to venue and personal jurisdiction in these forums for such disputes; (b) this Agreement, along with the accompanying Order Form(s) constitute the entire agreement and understanding of the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and undertakings, both written and oral; (c) this Agreement and each Order Form may not be modified except by a writing signed by each of the parties; (d) in case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provisions of this Agreement, but rather this Agreement shall be construed as if such invalid, illegal, or other unenforceable provision had never been contained herein; (e) Customer shall not assign its rights or obligations hereunder without Gravwell’s advance written consent; (f) subject to the foregoing subsection (e), this Agreement shall be binding upon and shall enure to the benefit of the parties hereto and their successors and permitted assigns; (g) no waiver of any right or remedy hereunder with respect to any occurrence or event on one occasion shall be deemed a waiver of such right or remedy with respect to such occurrence or event on any other occasion; (h) nothing in this Agreement, express or implied, is intended to or shall confer upon any other person any right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement, including but not limited to any of Customer’s own clients, customers, or employees; (i) the headings to the sections of this Agreement are for ease of reference only and shall not affect the interpretation or construction of this Agreement; and (j) terms in an Order Form have precedence over conflicting terms in this Agreement, but have applicability only to that particular Order Form; and (k) this Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
11.2. Personal Data. To the extent that Gravwell processes personal data about any individual in the course of providing the Software or Service, Customer agrees to Gravwell’s Data Processing Addendum, located at {Data Transparency/Use}
11.3. Injunctive Relief. Notwithstanding any other provision of this Agreement, both parties acknowledge that any breach of this Agreement may cause the other party irreparable and immediate damage for which remedies other than injunctive relief may be inadequate. Therefore, the parties agree that, in addition to any other remedy to which a party may be entitled hereunder, at law or equity, each party shall be entitled to seek an injunction to restrain such use in addition to other appropriate remedies available under applicable law.
11.4. Relationship of the Parties. Gravwell and Customer are independent contractors, and nothing in this Agreement shall be construed as making them partners or creating the relationships of principal and agent between them, for any purpose whatsoever. Neither party shall make any contracts, warranties or representations or assume or create any obligations, express or implied, in the other party’s name or on its behalf.
11.5. Force Majeure. Other than payment obligations hereunder, neither party will be liable for any inadequate performance to the extent caused by a condition that was beyond the party's reasonable control (including, but not limited to, natural disaster, act of war or terrorism, riot, global health crisis, acts of God, or government intervention), except for mere economic hardship, so long as the party continues to use commercially reasonable efforts to resume performance.
11.6. No Reliance. Customer represents that it has not relied on the availability of any future version of the Software or any future product or service in executing this Agreement or purchasing any Software hereunder.
11.7. Notices. Unless specified otherwise herein, (i) all notices must be in writing and addressed to the attention of the other party's legal department and primary point of contact, and (ii) notice will be deemed given: (a) when verified by written receipt if sent by personal courier, overnight courier, or when received if sent by mail without verification of receipt; or (b) when verified by automated receipt or electronic logs if sent by email. When sent by email, notices to Gravwell must be sent to legal@gravwell.io.
11.8. Publicity. Customer acknowledges that Gravwell may use Customer’s name and logo for the purpose of identifying Customer as a customer of Gravwell products and/or services. Gravwell will cease using Customer’s name and logo upon written request.
11.9. Compliance with Law. Each party agrees to comply with all applicable federal, state and local laws and regulations including but not limited to export law, and those governing the use of network scanners, vulnerability assessment software products, encryption devices, user monitoring, and related software in all jurisdictions in which systems are scanned, scanning is controlled, or users are monitored.
11.10. Export Control. The Software, including technical data / cryptographic software, may be subject to U.S. export controls and may be subject to import or export controls in other countries. You agree to strictly comply with all applicable import and export regulations. Specifically, You agree, to the extent required by U.S. Export Administration Regulations, that You shall not disclose or otherwise export or re-export the Licensed Software or any part thereof delivered under this EULA to any country (including a national or resident of such country) to which the U.S. has restricted or prohibited the export of goods or services. You represent and warrant that You are not (i) located in any country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist sponsoring" country, or (ii) listed on any U.S. Government list of prohibited or restricted parties including the Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's List or Entity List.
11.11. FOR U.S. GOVERNMENT END USERS: The Licensed Software was developed at private expense and each component thereof is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and FAR 52.227-19 Commercial Computer Software License. The Uniform Computer Information Transactions Act is excluded. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Licensed Software with only those limited rights set forth therein.
Publisher is Gravwell Inc, A Delaware Corporation.
11.12. INTELLECTUAL PROPERTY RIGHTS NOTICE. The Licensed Software and all
rights, without limitation including proprietary rights therein, are owned by
Gravwell, their licensors or affiliates and are protected by international treaty
provisions and all applicable national laws. The structure, organization, and
code of the Licensed Software are the valuable trade secrets and confidential
information of Gravwell, their licensors or affiliates. Except as expressly and
unambiguously provided herein, You do not possess, and Gravwell does not
grant to You, any express or implied rights (whether by implication, estoppels
or other legal theory) in or to any such intellectual property rights and all such
rights are retained by Gravwell, its licensors or affiliates. You must reproduce
and include the copyright notices with any permitted copies You make of the
Licensed Software.
