This Client End User License Agreement ("EULA”), version 01 Jun 2018 , is a legal and enforceable agreement between you, a natural person or legal entity, acting by and through, its officers, employees, and third party consultants (“You”), and OPSWAT, Inc. (“OPSWAT”) for using client software (“Client”) provided by OPSWAT and its suppliers, together with associated media, printed materials and "online" or electronic documentation.
By installing, copying, or otherwise using Client, You agree to be bound by the EULA. If You do not agree to the EULA, do not install or otherwise use the Client.
The Client may include the capability to route information to one or more (i) OPSWAT Server software products (“Server”) You deployed, or (ii) to one or more cloud services (“Hosted Service”) OPSWAT maintains. Unless you configure your Server to have the Client route information to it, Your default use of the Client may include routing information by the Client to the Hosted Service which may include upload by the Client to the Hosted Service of:
files (or hash values thereof) from the device on which the Client is installed or otherwise being used, and/or;
hash values of the remote Internet Protocol (“IP”) addresses to which the device (on which the Client is installed or otherwise being used) is connected, and/or;
Information about the device on which the Client is installed or otherwise being run and the operating system and software applications installed on the device at time of upload.
All rights, title, and interest in, and to, the Client are the exclusive property of OPSWAT or OPSWAT suppliers (excluding third party brand names the Server identifies), and is protected by copyright, trademark, patent, and other intellectual property laws and treaties. Nothing in this EULA should be construed as conferring to You, by implication or otherwise, any additional rights to the property of OPSWAT or OPSWAT suppliers beyond the express, limited rights specified in this EULA.
The Client is licensed, not sold. You have certain rights to use the Client after Your acceptance of this EULA. This EULA governs any releases, revisions, or enhancements to the Client that OPSWAT makes available to You.
You can stop using Client at any time by following standard removal instructions of operating systems which support installation or otherwise running of the Client
OPSWAT grants to You a nonexclusive, nontransferable, revocable and limited license to access and use the Client solely for Your internal purposes.
If You are using the Client with a Hosted Service or Server, unless You have entered into a paid license subscription transaction with OPSWAT as evidence by an OPSWAT payment confirmation, license key or license certificate (each a “Proof of Entitlement”) OPSWAT reserves the right, in its sole discretion, to:
Suspend or end of life the Client, with or without cause, and with or without notice.
Make unscheduled deployments of updates or enhancements to Client or Hosted Service with which the Client communicates. You acknowledge and understand that during such deployments, certain functionality of Client or Hosted Service may be unavailable and outages may occur.
Use information routed by the Client to Hosted Service to:
a. Improve the Client and/or Hosted Service
b. Publicly display analysis of information uploaded by the Client to the Hosted Service
c. Share uploaded files with cybersecurity suppliers if such suppliers’ intellectual property is used by the Hosted Service to analyze uploaded files.
You may not:
Reverse-engineer, decompile, disassemble, modify, translate, or make any attempt to discover the Client source code or create derivative works from the Client.
Use the Client in any manner not authorized by this EULA;
Withhold, for any reason, any portion of any fees due OPSWAT as a result of You purchasing a paid subscription to an OPSWAT Server product or Hosted Service, including but not limited to, taxes imposed upon You by any taxing authority or an obligation to calculate OPSWAT’s income or other tax obligation to any taxing authority.
OPSWAT reserves all rights not expressly granted to You. Without prejudice to any other rights, OPSWAT may terminate this EULA if You fail to comply with the EULA terms and conditions.
OPSWAT warrants that it owns or has obtained all necessary rights from its suppliers to Client and its components.
Disclaimer of Warranties
To the maximum extent permitted by applicable law, OPSWAT and its suppliers expressly disclaim any warranty for the Client. The Client and any related documentation are provided "as is" without warranty of any kind, either express or implied, including, without limitation, the implied warranties of merchantability or fitness for a particular purpose. The entire risk arising out of use or performance of the Client remains with You.
Notwithstanding the above Disclaimer of Warranties, if You enter into a paid license subscription transaction as evidenced by Proof of Entitlement, We will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging the Client infringes or misappropriates such third party’s United States patent (a “Claim”), and will indemnify You from damages, attorney fees, and litigation costs finally awarded against You by a court of competent jurisdiction as a result of, or for amounts paid by You under a Claim settlement approved by Us in writing. If We receive information about an infringement or misappropriation claim related to the Client, We may in Our discretion and at no cost to You (i) modify the Client so it is no longer claimed to infringe or misappropriate, (ii) obtain a license for Your continued use of the Client in accordance with the Terms, or (iii) terminate Your subscription for Client upon 30 days’ written notice and refund You prepaid fees covering the remainder of the term of the terminated subscriptions. Notwithstanding the foregoing, We shall have no indemnification obligations with respect to any action arising out of Client or any part thereof, in combination with software or other products not supplied by Us or the use Client other than in accordance with these Terms. Our indemnification obligations shall be subject you (i) notifying Us within ten (10) days of receiving notice of any threat or claim in writing of such action; (ii) giving Us exclusive control and authority over the defense or settlement of such action; (iii) not entering into any settlement or compromise of any such action without Our prior written consent; and (iv) providing reasonable assistance requested by Us.
Disclaimer and Limitation of Damages
IN NO EVENT WILL A PARTY BE LIABLE TO THE OTHER FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, STATUTORY, PUNITIVE, INDIRECT OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS AND LOST SAVINGS, HOWEVER CAUSED, WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE, EVEN IF A PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY’S TOTAL LIABILITY TO THE OTHER PARTY ARISING FROM OR IN RELATION TO THE EULA, WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE SHALL BE LIMITED TO THE TOTAL AMOUNTS PAID BY YOU TO OPSWAT TO LICENSE THE CLIENT, UPON WHICH THE DAMAGES WERE BASED, DURING THE TWELVE (12) MONTH PERIOD PRIOR TO ACCRUAL OF THE CAUSE OF ACTION. IN NO EVENT WILL A PARTY BE LIABLE FOR COSTS TO PROCURE SUBSTITUTE GOODS. THIS SECTION SURVIVES TERMINATION. THE FOREGOING DISCLAIMERS AND LIMITATIONS APPLY REGARDLESS OF WHETHER YOU ACCEPT THE CLIENT EULA, OPSWAT SERVER PRODUCT EULA, OR OPSWAT HOSTED SERVICE TERMS OF SERVICE.
U.S. Government Restricted Rights
The Client, consistent with FAR 12.211 and 12.212 (and the successor to such Sections, if any), shall be deemed commercial computer software. Manufacturer is OPSWAT, Inc. 398 Kansas Street, San Francisco, CA 94103, United States of America.
This EULA shall not be construed by OPSWAT or any third party to assert any obligation upon the Government of the United States to indemnify the OPSWAT or any person or entity for damages, costs, fees, or any other loss or liability that would create an Anti-Deficiency Act violation (31 U.S.C. 1341).
In the event You export the Client from the country in which You first received it, You shall comply with all applicable import, export and re-export laws, including but not limited to, regulations of the Office of Export Administration of the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control regulations of the European Union.
You agree the Client shall not be used, and none of the underlying information, software, or technology be transferred or otherwise exported or re-exported to countries as to which the United States and/or the European Union maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Client, You represent and warrant that You are not located in, or are under the control of, or a national or resident of, an Embargoed Country or Designated National.
OPSWAT makes no representation the Client is appropriate or available for use in locations outside the United States.
You agree to indemnify and hold OPSWAT harmless from and against claims, losses, costs, or liability, arising in connection with Your breach of this Section.
This EULA and Proof of Entitlement, if any, OPSWAT delivers to You constitute the entire agreement between You and OPSWAT and (a) supersedes all prior or contemporaneous communications, both written and oral; and (b) prevails over conflicting or additional terms of any quote, order, acknowledgment, or similar communications between the parties.
This EULA terminates upon Your breach of any term contained in the EULA and You shall cease use of and destroy all copies of the Client. The disclaimers of warranties and damages and limitations on liability shall survive termination.
This EULA may only be modified by the Proof of Entitlement that accompanies this EULA or by a written document signed by You and OPSWAT.
Should You have questions concerning this EULA, or if desire to contact OPSWAT, write to OPSWAT Customer Service, P.O. Box 77878, San Francisco, CA 94107-7878.
If any provision of this Agreement is found unlawful, void or unenforceable, then that provision shall be severed from this EULA and will not affect the validity and enforceability of any of the remaining provisions.
Failure to enforce a right or provision of the EULA will not be deemed a waiver of such right or provision.
The EULA is governed by and construed according to the laws of the State of California, excluding California’s choice of law principles. In the event of a dispute or claim arising out of the EULA, the parties submit to exclusive venue in, and the exclusive jurisdiction of, the federal and state courts, as applicable, located in San Francisco, California (except that a party may enforce a judgment in any court of competent jurisdiction).
Attribution and Additional Rights
The Client You licensed may include files or data from OPSWAT’s suppliers which grant You additional rights specific to the files these suppliers provide OPSWAT, when used separately from the Client. Attribution of such suppliers and material terms of additional rights available to You may be found at 3rd Party EULA.
OPSWAT, the OPSWAT logo, Metadefender, MetaAccess and Metascan are trademarks or registered trademarks of OPSWAT, Inc. Trademarks not owned by OPSWAT are owned by their respective owners.
(C) 2002-2018 OPSWAT Inc. All rights reserved.