RISC NETWORKS, LLC END USER AGREEMENT
This END USER AGREEMENT (this “Agreement“) is made by and between RISC Networks, LLC (“RISC Networks“) and the company, organization or other legal entity on whose behalf this Agreement is accepted (“End User“) in connection with the use of a hardware appliance or virtual appliance supplied by RISC Networks (the “Appliance“), which is used solely to collect certain data and information relating to End User’s computer network (the “Network Data“), which Network Data is utilized by RISC Networks to perform such professional, technical and/or consulting services (collectively, the “Services“) and deliver such reports, deliverables and/or other work product (collectively, the “Work Product“) as may be agreed from time to time between End User and/or a service provider retained by End User, on one hand, and RISC Networks or its duly authorized resellers, representatives or agents, on the other hand. The Services and Work Product are generally delivered by RISC Networks through a website portal (the “Portal“) and this Agreement may be presented to End User and End User may be required to confirm and ratify this Agreement as a condition to access to such Portal.
A. RISC Networks uses two forms of the Appliance to collect the network Data. The Appliance may be provided as a hardware device (the “Hardware Appliance”) containing a software interface. Alternately, the Appliance may be a self-contained operating system utilizing End User’s network hardware in a virtualized data center (the “Virtual Appliance”), consisting of a virtualized data center operating system. Both the Hardware Appliance and Software Appliance may contain Open Source Software (the “OSS”). The OSS is owned by third parties. The OSS is not subject to the terms and conditions of this Agreement. Each item of OSS is licensed under the terms of the end user license that accompanies such OSS, and End User’s use of the OSS is subject to End User’s acceptance of such licenses. Nothing in this Agreement limits the End User’s rights under, or grants the End User rights that supersede the terms and conditions of any applicable end user license for the OSS. If required by any license for particular OSS, RISC Networks shall make available the source code of such OSS, and RISC Networks’ modifications to that OSS, to End User by written request to RISC Networks via email to [firstname.lastname@example.org, or via postal mail to [RISC Networks, LLC 81 Broadway, Suite C, Asheville, NC 28801_]. The text of each OSS license may be accessed by requesting or downloading the respective OSS package from http://www.riscnetworks.com/resources/oss.
B. To the extent that the activation of the applicable Appliance has triggered the presentment of this Agreement, then by selecting “ACCEPT” below and continuing with the set-up process, the individual completing the process agrees on behalf of End User to be bound by the terms of this Agreement. To the extent that End User’s attempt to access the Portal has triggered the presentment of this Agreement, then by selecting “ACCEPT” below and accessing the Portal, End User ratifies and agrees to be bound by the terms of this Agreement. If End User does not agree to the terms of this Agreement, End User must not continue with the setup or use of the Appliance or the Portal in any manner. IF END USER IS NOT WILLING TO BE BOUND BY THIS AGREEMENT, END USER MAY RETURN THE APPLIANCE AND ALL RELATED MATERIALS TO RISC NETWORKS UNUSED, WITH A CERTIFICATE STATING THAT ALL SUCH MATERIALS HAVE BEEN RETURNED WITHOUT ANY USE.
1. GRANT OF RIGHTS
1.1 Bailment. In the case of delivery of a Hardware Appliance by RISC Networks, then subject to End User’s acceptance of this Agreement, RISC Networks grants to End User a non-transferable limited right to maintain and operate the Hardware Appliance on End User’s premises to collect the Network Data to allow RISC Networks to perform the Services and deliver the Work Product. Such Hardware Appliance is leased, not sold, and shall be returned by End User to RISC Networks (or RISC Networks’ duly authorized reseller, representative or agent), in the same condition as originally provided (ordinary wear and tear excepted), upon completion of the collection of data and information necessary for the performance of the Services.
1.2 Usage Rights. In the case of delivery of a Virtual Appliance by RISC Networks, then subject to End User’s acceptance of this Agreement, RISC Networks grants to End User a non-exclusive, non-transferable limited right to activate and use the Virtual Appliance solely in connection with End User’s computer network to collect the Network Data to allow RISC Networks to perform the Services and deliver the Work Product. All rights are reserved by RISC Networks. Upon completion of the collection of the Network Data, the End User will deactivate and cease use of the Virtual Appliance and return the media upon which the Virtual Appliance was provided.
1.3 Restrictions. End User shall not sell, lease, assign, license or otherwise transfer the Appliance, in whole or in part, to any third party and shall use the Appliance only for the purposes described herein. End User will not, and will not attempt to, misuse, crack, hack, reverse engineer, disassemble, decompile or compile, seek unauthorized access to, or circumvent technological safeguards for, the Appliance or any component of the Appliance, except and only to the extent that such activity is permitted by applicable law notwithstanding this provision.
1.4 Automatic Software Updates. RISC Networks may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Appliance or the Portal (“Updates”). Updates may be automatically installed by RISC Networks without providing End User with any additional notice. End User hereby consents to the automatic installation of the Updates. If End User does not want such Updates, End User’s sole remedy is to stop using the Services. If End User does not cease using the Services, End User will receive the Updates automatically. In no event shall automatic installation of the Updates constitute a breach of this Agreement by RISC Networks.
2. WARRANTY DISCLAIMER
EXCEPT AS MAY BE EXPRESSLY SET FORTH IN SPECIFIC WARRANTY DOCUMENTS EXECUTED BY RISC NETWORKS AND DELIVERED TO END USER OR A SEPARATE AGREEMENT ENTERED INTO BETWEEN RISC NETWORKS AND END USER, RISC NETWORKS EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF WORKMANLIKE QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS OTHER REPRESENTATIONS MADE TO END USER, WITH RESPECT TO THE APPLIANCE, SERVICES OR WORK PRODUCT AND THE FOREGOING ARE ALL PROVIDED “AS IS,” WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH END USER. RISC NETWORKS DOES NOT WARRANT, AND NO RISC NETWORKS REPRESENTATIVE IS AUTHORIZED TO WARRANT THE RESULTS OBTAINED USING THE APPLIANCE, SERVICES OR WORK PRODUCT OR THAT THE FOREGOING WILL MEET END USER’S REQUIREMENTS.
3. INDEMNIFICATION AND LIABILITY
3.1 Indemnification. Notwithstanding any agreement to the contrary, End User, and any third party executing this Agreement for the purpose of deploying the Services and/or making available the Appliance to an End User, hereby executing this Agreement on behalf of each End User to which the Services are deployed and/or the Appliance is made available (each a “Third Party Agent”) hereby indemnify and shall defend and hold harmless RISC Networks and its affiliates, distributors, service providers, licensors and vendors and their respective managers, members, officers, directors, shareholders, employees, representatives and agents from and against any and all liability, damage, loss, cost or expense, including reasonable attorneys’ fees and expenses, arising out of or in connection with: (a) any breach of this Agreement by End User or Third Party Agent; (b) any negligent, wrongful or intentional acts or omissions on the part of End User or Third Party Agent or the employees, agents or other representatives of End User and Third Party Agent; or (c) any and all claims by third parties arising out of the performance and/or non-performance of services by RISC Networks pursuant to this Agreement. For the sake of clarity only, for the purposes of this Section 3, this Agreement shall be binding on Third Party Agent for each and every End User to which Third Party Agent provides the Service or makes available the Appliance.
RISC agrees to defend, indemnify and hold harmless End User and its affiliates from and against any and Third Party Claims asserting that the Appliance or the Service infringes that third party’s intellectual property or proprietary rights, except to the extent that such claim relates to the combination of the Service with any other services not provided by RISC. “Third Party Claim” shall mean any suit, action, cause of action, proceeding or claim asserted by a third party, together with all losses, liabilities, damages finally awarded in connection therewith and all costs and expenses (including attorney’s fees and court costs) incurred in connection therewith.”
3.2 Limitations on Liability. IN NO EVENT WILL RISC NETWORKS OR ITS AFFILIATES, DISTRIBUTORS, SERVICE PROVIDERS, LICENSORS AND VENDORS AND THEIR RESPECTIVE MANAGERS, MEMBERS, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, REPRESENTATIVES AND AGENTS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES (INCLUDING LOSS OF USE, DATA, ANTICIPATED SAVINGS, BUSINESS OR PROFITS, COSTS OF COVER) ARISING OUT OF OR IN CONNECTION WITH THE SERVICES TO BE PERFORMED PURSUANT TO THIS AGREEMENT, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. END USER AGREES AND ACKNOWLEDGES THAT THE AGGREGATE LIABILITY OF RISC NETWORKS OR ITS AFFILIATES, DISTRIBUTORS, SERVICE PROVIDERS, LICENSORS AND VENDORS AND THEIR RESPECTIVE MANAGERS, MEMBERS, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, REPRESENTATIVES AND AGENTS TO END USER IN CONNECTION WITH ANY AND ALL CLAIMS ARISING FROM THIS AGREEMENT, THE APPLIANCE, THE WORK PRODUCT OR THE SERVICES IS ABSOLUTELY AND UNCONDITIONALLY LIMITED TO THE AMOUNT OF FEES ACTUALLY PAID BY END USER TO RISC NETWORKS FOR THE SERVICES AND WORK PRODUCT DIRECTLY RESPONSIBLE THEREFOR. Each limitation on liability set forth in this Agreement is independent of any other limitation, and if such limitation fails of its essential purpose or is otherwise held to be unenforceable, the validity of any other limitation shall not be affected. The parties have entered into this Agreement and RISC Networks has made the Appliance available to End User in reliance upon the limitations of liability and the disclaimer of warranties set forth herein; the same form an essential basis of the bargain between the parties.
4. INTELLECTUAL PROPERTY RIGHTS AND CONFIDENTIALITY
4.1 Intellectual Property Rights. End User hereby recognizes that, as between RISC Networks and End User, RISC Networks retains all right, title and interest in all forms of intellectual property rights and protections arising out of or related to the Appliance, Confidential Information, Services, Work Product (excluding any Network Data incorporated therein) and/or otherwise relating to RISC Networks’ business or activities (“RISC Intellectual Property”), including all right, title and interest in and to any and all: (i) letters patents, provisional patents, design patents, PCT filings and other rights to inventions or designs (including registered and unregistered designs and design rights, whether pending application or not); (ii) trade secret and equivalent rights in confidential or proprietary information and know-how; (iii) copyrights, mask works, moral rights, or other rights in works of authorship; (iv) rights regarding trade names, logos, domain names, URLs, trademarks, service marks and other proprietary indicia or addresses and all goodwill associated therewith; (v) any similar, corresponding or equivalent rights relating to intangible intellectual property; and (vi) all applications, registrations, issuances, divisions, continuations, renewals, reissuances and extensions of the foregoing. RISC Networks s hall be free to use without restriction or compensation any suggestions or ideas for any enhancements, improvements or modifications to the RISC Intellectual Property provided by End User to RISC Networks or its resellers, representatives or agents and End User hereby assigns to RISC Networks all rights it may possess or acquire to such RISC Networks or any enhancements, improvements or modifications thereto. The parties acknowledge and agree that, upon completion of the Services and payment in full therefor by End User to RISC Networks or its duly authorized reseller, representative or agent, End User only shall have the non-exclusive license and right to utilize the Work Product for its internal business purposes.
4.2 Network Data. End User acknowledges that RISC Networks will collect the Network Data in the course of its performance of the Services. As between RISC Networks and End User, End User will retain ownership of all Network Data (including any Network Data incorporated into Work Product). End User authorizes RISC Networks to use the Network Data to perform the Services and prepare and provide the Work Product. In addition, End User agrees that any data or information that RISC Networks collects which relates to End User’s information technology systems and which has been anonymized such that it is not traceable to End User, may be used by RISC Networks without restriction or compensation. The preceding sentence applies only to the “IT HealthCheck” Service and not to the Cloudscape Service or any other Service, where there is no data retention by RISC Networks beyond the scope of the subscription.
4.3 Confidentiality. For purposes of this Agreement, “Confidential Information” means any information (whether the information is in oral, visual or written form or is recorded in any other medium) that relates to RISC Networks, its business, the Appliance, the RISC Intellectual Property or the Services and that: (i) is disclosed to End User by or on behalf of RISC Networks; or (ii) is otherwise acquired by End User directly or indirectly from RISC Networks; or (iii) is generated by End User solely or jointly with others in the course of RISC Networks’ performance under this Agreement; provided, however, that information shall not be deemed Confidential Information after it becomes generally available to the public other than because of a breach by End User of this Agreement. By way of example and not limitation, Confidential Information includes all trade secrets, formulas, designs, patterns, computer data or programs, know-how, data, existing and prospective customer, vendor, and supplier lists and files, agreements and contracts, documents, methods of conducting business, financial and accounting statements and records, business plans, budgets and projections, prospective customer proposals, price lists and other pricing materials and information, technical information, marketing materials and concepts, methods for developing and maintaining business relationships with customers and prospective customers. End User agrees to observe complete confidentiality with respect to the Confidential Information; not to disclose, or permit any third party or entity access to, the Confidential Information (or any portion thereof) without prior written permission of RISC Networks; and to ensure that any employees or any third parties who receive access to the Confidential Information in accordance with this Agreement are obligated to protect, and do protect, such Confidential Information in accordance with this Agreement. Notwithstanding the foregoing, End User may disclose the Confidential Information to the extent required pursuant to any judicial or governmental order, provided that End User gives RISC Networks sufficient prior notice to contest such order and cooperates with RISC Networks so as to enable RISC Networks to seek a protective order or otherwise prevent or restrict such disclosure. In addition, End User shall not use any of the Confidential Information except as explicitly contemplated in this Agreement. Upon the request of RISC Networks at any time, End User shall promptly destroy or deliver to RISC Networks all copies of materials containing Confidential Information and will not retain copies, extracts or other reproductions in any medium in whole or in part of any such Confidential Information, and such destruction or delivery shall be promptly certified to RISC Networks by an authorized officer of End User supervising such destruction.
4.4 Remedies for Breach or Threatened Breach. End User acknowledges and agrees that End User’s failure (threatened or actual) to observe any of the terms of this Agreement relating to RISC Networks’ Intellectual Property Rights or the Confidential Information would cause irreparable harm to RISC Networks that cannot be adequately compensated by monetary damages. End User agrees that, in addition to any other remedies available to RISC Networks at law or in equity, RISC Networks may seek injunctive or other equitable relief against End User for the failure (either threatened or actual) to observe such obligations. End User further agrees that it will not assert as a defense or object to such injunction on the basis that there is an adequate remedy at law. Such remedy shall not be deemed to be the exclusive remedy for End User’s breach or threatened breach of this Agreement, but shall be in addition to all other remedies, at law or at equity, available to RISC Networks.
5. GENERAL PROVISIONS
5.1 Entire Agreement. This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter herein and merges all prior discussions between them, provided that any written document executed by an officer or RISC Networks relating to the Services may contain additional provisions and agreements that shall be applicable to such Services. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing signed by the party to be charged.
5.2 Governing Law. This Agreement shall be governed by and construed under the laws of the State of Illinois, without giving effect to its principles of conflicts of law. End User and RISC Networks each hereby irrevocably submit to the exclusive jurisdiction of the federal and state courts located in Chicago, Illinois, over any claim, controversy, action or proceeding relating hereto and each parties hereby irrevocably waive the defense of an inconvenient forum to the maintenance of any such action or proceeding; provided that RISC Networks notwithstanding the foregoing may bring an action for equitable remedies under Section 4.4 in any court of competent jurisdiction.
5.3 Force Majeure. RISC Networks shall not be liable for failure to perform its contractual obligations, if such failure results from an act of god, governmental act, fire, explosion, accident, industrial dispute, or any other cause beyond RISC Networks’ reasonable control.
5.4 Assignment. End User shall not by contract, operation of law, or otherwise assign this Agreement (in whole or part), or delegate performance of any of its obligations under this Agreement without RISC Networks’ prior written consent. Any such assignment or delegation without RISC Networks’ prior written consent shall be void at RISC Networks’ option. RISC Networks reserves the right to assign any portion of this Agreement with written notice to End User. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns.
5.5 Interpretation. The section headings appearing in this Agreement are for convenience of reference only and shall not be considered a part of this Agreement or in any way modify, amend, or affect the meaning or interpretation of this Agreement. Common nouns and pronouns shall be deemed to refer to the masculine, feminine, neuter, singular and plural, as the identity of the person may in the context require. The use of the words “include,” “including” or variations and correlatives thereof (as “such as” and “like”) in this Agreement shall be by way of example rather than by limitation. The provisions of this Agreement are solely for the benefit of the parties hereto and are not intended to confer upon any person except the parties hereto any rights or remedies hereunder and there are no third-party beneficiaries of this Agreement. If any provision of this Agreement is held to be invalid or unenforceable under the circumstances, such provision’s application in any other circumstances and the remaining provisions of this Agreement shall not be affected thereby.
5.6 U.S. Governmental Rights. If the Appliance is being provided to, or used on behalf of, the U.S. Government, the following provisions apply to this Agreement. If the Appliance is supplied or made available to the Department of Defense, any software component of the Appliance is classified as “Commercial Computer Software” and the U.S. Government is acquiring only “Restricted Rights” therein and any related documentation, as that term is defined in paragraph 252.227-7013(c)(1) of the Department of Defense Supplement to the Federal Acquisition Regulations (or any successor regulations). If the Appliance is supplied to any unit or agency of the U.S. Government other than the Department of Defense, the U.S. Government’s rights in any software component of the Appliance will be as defined in paragraph 52.227-19(c)(2) of the Federal Acquisition Regulations or, in the case of NASA, in paragraph 18.52.227-86(d) of the NASA Supplement to the Federal Acquisition Regulations (or any successor regulations).
RISC NETWORKS, LLC PROFESSIONAL SERVICES ADDENDUM
This END USER LICENSE AGREEMENT ADDENDUM (“Addendum”) is attached to and made a part of the RISC Networks End User Agreement (“End User Agreement”) which End User accepted, or will accept, as a part of End User’s use of the Services. To the extent that any provisions of this Addendum conflict with any provision that may be found in the original End User Agreement, the terms of this Addendum shall control. All terms used in this Addendum have the same meanings and are used in the same way as in the End User Agreement.
In addition to the Services described in the End User Agreement, RISC Networks also provides professional services in connection with End User’s use of the Services (the “Professional Services”). If End User purchased Professional Services from RISC Networks through a duly authorized reseller, RISC Networks shall provide the Professional Services to End User without involvement from the reseller or any other third-party. This Addendum specifies the terms of the provision of the Professional Services.
1. Generally. RISC Networks will provide the Professional Services as specified here to End User via remote means, on the date or dates mutually agreed between the End User and RISC. The Professional Services may include delivery of materials prepared for End User to assist in its use of the Services (the “Deliverables”).
2. Services and Work Product. The Professional Services shall be considered “Services” as defined in the End User Agreement and the Deliverables shall be considered to be “Work Product” as defined in the End User Agreement.
3. License to Deliverables. Notwithstanding the provisions of Section 4.1 of the End User Agreement, upon delivery of the Deliverables, End User shall have a perpetual, non-transferable, fully paid up license to use, copy, modify and prepare derivative works of the results of Professional Services and the Deliverables delivered to End User hereunder or have the foregoing done on End User’s behalf, solely for its internal business purposes, subject to any restrictions of any third-party materials embodied in the Deliverables and disclosed to End User and subject to any confidentiality limitations specified in Section 4.3 of the End User Agreement. All rights to any materials owned by End User or a third-party and incorporated into the Deliverables, shall remain with End User or the third-party. Other than as set forth expressly herein, all other rights in the Deliverables remain in RISC Networks. RISC Networks shall be free to use the concepts, techniques, and know-how used and developed hereunder relating to RISC Networks’ products and Services. RISC Networks shall be free to perform similar services and develop deliverables for itself or any third party that may be similar or which may be competitive with those produced hereunder.