End-User License Agreement:
IMPORTANT: CAREFULLY READ THIS END USER LICENSE AGREEMENT BEFORE ACCESSING OR USING THE SOFTWARE OR FEATURES. BY ACCESSING OR USING THE SOFTWARE OR FEATURES, YOU AUTOMATICALLY ACKNOWLEDGE, ACCEPT AND AGREE TO ALL THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT ACCESS OR OTHERWISE USE THE SOFTWARE AND ACCOMPANYING FEATURES.
THIS END-USER LICENSE AGREEMENT (the “Agreement”) is a legally binding and enforceable agreement between Peach Fuzzer, LLC, a Washington limited liability company (“Company”) and the end-user of the Software (“Customer”), governing the Customer’s license to and use of the Software and Features.
- “Features” mean the features and Software capabilities made available to Customer under a paid and active Peach API Security License for use of the Software and Features, and includes software programs, documentation, public forum access, basic support services and support materials.
- “Internal Networks” refer to the Customer’s internal networks and cloud service providers (internal use only).
- “Licenses” means the “Peach API Security License” granted hereunder.
- “License Fees” means the amounts due and owing to Company from time to time by Customer as established or otherwise set forth in writing at the time Customer subscribes for or renews the Peach API Security License granted hereunder. The License Fees may be as established or set forth on an applicable customer invoice, or established through a third-party platform, such as the Amazon Web Services (“AWS”) Marketplace or similar third-party intermediary, reseller or sublicensor, as applicable.
- “Software” refers to the Peach API Security™ software and associated software components, including software programs, documentation, and accompanying features available under Customer’s applicable License.
- “Support Services” refer to basic support services consisting of email helpdesk support available Mon-Fri (non-U.S. Holidays) from 9am-5pm PST for deployment and bug fixes.
- “Support Materials” refer to documentation, tools, information, and materials provided by the Company under the subscription for Support Services.
- GRANT OF PEACH API SECURITY LICENSE. Subject to Customer’s timely payment of all applicable License Fees, and Customer’s full and continued compliance with this Agreement, the Company hereby grants to the Customer a limited, revocable, non-exclusive, non-transferrable, non-assignable, non-exclusive license, on a per-concurrency basis, to use and run one instance of the Peach API Security Software, including accompanying Features and updates, on one internal Customer computer or virtual machine, solely for the applicable Term, and subject to the terms and conditions of this Agreement (the “Peach API Security License”).
- TERMS AND CONDITIONS OF LICENSES. The following terms and conditions apply to all Licenses granted hereunder.
- The Peach API Security License Fee structure allows the Customer to purchase a subscription to the Software (a single instance on a per concurrency basis), for a specific Term, for an up front set price, either as set forth on an applicable customer invoice (for direct subscriptions), or established through a third-party platform, such as the AWS Marketplace or similar third-party intermediary, distributor, reseller or sublicensor, as applicable. Customer’s continued use of the Software beyond the applicable set Term shall constitute an automatic voluntary renewal of the subscription by Customer, and shall be pursuant to and governed by the terms and conditions of the applicable customer invoice, or established through a third-party platform, such as the AWS Marketplace or similar third-party intermediary, distributor, reseller or sublicensor, as applicable.
- No Sale. The Customer’s access to and use of the Software and Features is pursuant to the applicable Licenses described in this Agreement. The Customer acknowledges and agrees that their access to and use of the Software and Features does not constitute any form of sale. No conduct, acts or omissions of either Customer or the Company shall be construed as altering the terms or conditions of any Licenses granted herein, or creating any form of transfer or sale. The Company expressly reserves all rights, title and interest in and to the Software, Features, and all related functionality.
- Features and Updates. The Licenses shall extend to any updates, modifications and additional functionality provided by the Company during the Term, or any renewal or extension thereof.
- No Use for Professional Services. The Licenses granted herein permit Customer to utilize the Software and Features as part of their continuous integration system for the limited purpose of testing to one web API at a time. Customer may purchase multiple instances of the Software (on a per-concurrency basis), but it otherwise restricted to one single concurrency of the Software. Customer is expressly prohibited from offering any form of SaaS (Software as a Service) services to any third party utilizing any Licenses granted hereunder.
- Server Use. Customer may install the Software on computer file server(s) within Customer’s Internal Network only for use of the Software initiated from a single computer or virtual machine within the same Internal Network, pursuant to the Peach API Security License, or the Customer may access the Software from a cloud-based third-party provider such as the AWS Marketplace or similar third-party intermediary, distributor, reseller or sublicensor. By way of example, the foregoing does not permit the Customer to install or access (either directly or through commands, data or instructions) the software: (i) from or to a computer not part of the Internal Network or a network under its control, (ii) from services available to the public, or (iii) to transfer to any individual or entity to use, download, copy or otherwise benefit from the functionality of the Software unless licensed to do so by the Company.
- Backup Copy. Customer may make a reasonable number of backup copies of the Software, provided the backup copies are not installed or used for other than archival purposes, and are not used in any way that violates the applicable License.
- Source Code; Confidential; Trade secret. In the event that in connection with any of the Licenses granted herein, Company shares or otherwise discloses to the Customer any source code with respect to the Software or Features, the Customer agrees that the Company source code is strictly confidential, and that Customer shall not use or otherwise disclose the source code for any purpose other than in strict compliance with the Licenses granted, and shall otherwise keep the Source Code strictly confidential. Customer agrees that this obligation of non-disclosure, non-use and confidentiality is perpetual, material and survives termination of this Agreement. Customer has or will have an appropriate agreement with each of Customer’s employees sufficient to comply with all of the terms of this Agreement and that Customer will disclose source code only to those employees who have an absolute need to know. Customer shall use the same degree of care as Customer uses to protect its own most highly protected confidential information and trade secrets, but no less than a reasonable degree of care, to protect the secrecy of and avoid any unauthorized disclosure or use of Confidential Information. Customer shall not make any copies of any source code unless Company previously approves the same in writing. The Customer expressly agrees that the Company’s source code contains intellectual property that the Company from which the Company derives independent financial benefit, and has taken significant and reasonable measures to keep secret, and as a result constitutes a trade secret pursuant to the Uniform Trade Secrets Act, as adopted in Washington, RCW 19.108, et seq. (“UTSA”), and that any use of the Confidential Information by Customer in violation of any portion of this Agreement would constitute a misappropriation under the UTSA, for which Company would be entitled to immediate injunctive relief. In addition to any other remedies the Company may have, any breach of this provision or unauthorized use or replication of the source code will result in the automatic termination of all Licenses granted herein, and all amounts paid by Customer to the Company shall become non-refundable. Customer agrees that the terms and conditions of this provision are reasonable and necessary for the Company to protect its trade secrets.
- RESTRICTIONS ON USE. The following terms and conditions apply to the Peach API Security License.
- Copyright and Trademark Notices. All copies of Software, Features and other items made available by the Company or in the Customer’s possession or control must contain the same copyright, trademark, patent, and other proprietary notices that appear therein, as applicable.
- No Modifications; Derivatives. Customer shall not modify, adapt or translate the Software support components, or other such components or Features, or make any derivative works thereof.
- No Reverse Engineering. Customer hereby agrees that it shall NOT reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of any Software, Features or their respective component parts provided by the Company except to the extent that Customer may be expressly permitted under applicable law to decompile only in order to achieve interoperability with authorized software.
- No Unbundling. The Software and Features provided by the Company may include various applications, utilities and component parts, may support multiple platforms and languages, and may be provided to the Customer on multiple media or in multiple copies. Notwithstanding the foregoing, any Software and Features provided to Customer constitutes a single, unified product to be used as a single, unified product on internal computers as permitted by this Agreement. Customer is not required to use all component parts of the Software. Customer is not permitted to unbundle the component parts of the Software for use on different computers without express permission. Customer shall NOT unbundle or repackage for resale any Software, Features or their respective component parts, including any additional functionality provided with future updates, support services, or otherwise made available.
- No Transfers Permitted. Customer will not rent, lease, sell, sublicense, assign, distribute, encumber or otherwise transfer any Software or Features, in any form, or authorize or make copies available to another individual or entity.
- Updates. The Company may, from time to time in its sole discretion, release updates to the Software and Features on a periodic basis. Updates will be sent via appropriate channels to Customer provided that Customer has current, valid and applicable Licenses. Failure to maintain the applicable valid Licenses will result in not receiving updates. The Company will not be liable for incidents that occur as a result of failure to update Software in accordance with its policies.
- SUPPORT. Licenses shall also include basic support services consisting of email helpdesk support available Mon-Fri (non-U.S. Holidays) from 9am-5pm PST for deployment and bug fixes. Customer may purchase additional support services. Access helpdesk support by emailing email@example.com.
- TERM. The term of this Agreement (the “Term”) shall take effect immediately on the date Customer purchases valid Licenses for the Software (such date, the “Effective Date”) and continue for the period identified in the applicable Customer Invoice or otherwise established through a third-party platform, such as the AWS Marketplace or similar third-party intermediary, reseller or sublicensor, as applicable (in each case, the “Initial License Term”), and automatically renew annually thereafter upon the Customer’s continued use of the Software after the expiration of the Initial License Term (each a “Renewal License-Term”) in accordance with the applicable terms and conditions of the Customer’s subscription.
(a) By the Company. The Company may terminate this Agreement upon 30 days notice of breach by Customer and opportunity to cure, provided, however, that the Company may terminate this Agreement immediately upon material breach or for breach for infringement, improper use of the Software or non-payment.
(b) By the Customer. The Customer may terminate this Agreement upon the material breach by the Company, where the Customer has provided the Company with thirty (30) days’ written notice of such breach, identifying with specificity the nature and known information regarding such breach, with opportunity to cure.
(c) Effect of Termination. Upon Termination, the following procedures shall apply (i) all Licenses and subscriptions granted under this Agreement shall be automatically revoked and terminated; and (ii) certain covenants set forth in Section 20(h) of this Agreement will survive, but shall not imply or create any continued license or right to use the Software or Features or services after the date of termination.
(d) No Refunds. All amounts paid pursuant hereto are non-refundable. In the event of early termination of this Agreement as a result of Customer breach or default, Customer acknowledges that no refunds or other amounts prorated will be issued or refunded to Customer. Notwithstanding the foregoing, in event of early termination of this Agreement by the Customer due to the uncured material breach of this Agreement by the Company, Company shall pay to Customer a refund of the fees paid hereunder prorated for any actual pro-rata period of non-use of the Software remaining in the then-applicable Term.
- INTELLECTUAL PROPERTY. The Software and its respective updates and Features provided under this Agreement are proprietary, and the Company exclusively owns all rights, title and interest in the same, including without limitation, any copyrights, patent rights, trademark rights and other intellectual property rights. Furthermore, the structure, organization and code of the Software and its respective updates and Features, constitute designated valuable trade secrets and confidential proprietary information of the Company. The Software and its respective updates and Features provided hereunder, are protected by United States Copyright and related proprietary laws, including but not limited to the intellectual property laws of the United States and other countries, and international treaty provisions. Except as expressly stated herein, this Agreement does not grant Customer any intellectual property rights, interest, or title to or in the Software or its respective updates and Features. The Company hereby exclusively reserves all rights not expressly granted herein.
- LIMITED WARRANTY. The Company only warrants that the Software and its respective updates and Features as provided will be free from material defects in material and manufacture for a period of thirty (30) days from the date of delivery to Customer, and that the Software will possess substantially similar characteristics and functionality as listed on the Company’s website and datasheets as of the date of this Agreement. The Company does not warrant that the functions contained in the Software or its respective updates and Features, will meet Customer’s requirements or that the operation thereof will be uninterrupted or entirely error free, appear or perform precisely as described, or comply with regulatory requirements. The Customer acknowledges and agrees that the functionality of the Software and its respective updates and Features depends greatly on the Customer’s use, input, web API, customer development process and Internal Network, and that Customer error may impact the performance and results thereof. This warranty extends only and directly to the Customer that purchased valid Licenses from the Company or through an authorized third-party platform, such as the AWS Marketplace or similar third-party intermediary, distributor, reseller or sublicensor. All warranty claims must be made, along with proof of subscription to the Company’s Customer Support within thirty (30) days from the date of delivery to Customer.
- DISCLAIMER OF WARRANTY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LIMITED WARRANTIES IN SECTION 11 ARE EXCLUSIVE. the Company PROVIDES THE SOFTWARE, UPDATES AND ACCOMPANYING FEATURES, AND ACCESS TO ANY WEBSITES, ONLINE SERVICES, AND CERTIFICATE AUTHORITY SERVICES “AS-IS” AND “WITH ALL FAULTS and defects” AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF every and ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF PERFORMANCE, SECURITY, NON-INFRINGEMENT, INTEGRATION, MERCHANTABILITY, SATISFACTORY QUALITY, OR FITNESS FOR ANY PARTICULAR PURPOSE.
- LIMITATION OF LIABILITY. If any OF the Software, or its respective updates and Features do not perform substantially in accordance with the limited warranty, OR IN THE EVENT THE COMPANY BREACHES THIS AGREEMENT, the entire liability of the Company and Customer’s exclusive remedy will be limited to, at the Company’s option, EITHER (A) replacement of the Software, and respective updates and Features or (B) refund of any license fees paid by Customer to the Company therefor. IN NO EVENT WILL the Company OR ITS LICENSORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING LOSS OF USE, DATA, OR PROFITS) WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF the Company HAS OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Except with respect to the company’s limited indemnification obligation under section 14(b) BELOW, the Company’S AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT OF LICENSE FEES PAID, IF ANY, IN THE THEN APPLICABLE TERM.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO CUSTOMER, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO CUSTOMER, AND CUSTOMER MIGHT HAVE ADDITIONAL RIGHTS.
- MUTUAL INDEMNIFICATION.
(a) By Customer. CUSTOMER AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS the Company, TOGETHER WITH ITS OWNERS, MEMBERS, MANAGERS, OFFICERS, DIRECTORS, SHAREHOLDERS, AGENTS, EMPLOYEES, CONTRACTORS, INSURERS, SUCCESSORS, ASSIGNS AND LICENSORS FROM ANY CLAIMS, CAUSES OF ACTION, DISPUTES, CONTROVERSIES, LOSSES, COSTS, DAMAGES, EXPENSES, OR LIABILITIES, INCLUDING ATTORNEYS’ FEES, COURT COSTS, AND LITIGATION EXPENSES RELATED THERETO, ARISING OUT OF OR IN CONNECTION WITH THE customer’s USE of the SOFTWARE, UPDATES OR FEATURES IN connection with, directly or indirectly, CUSTOMER’s ACTIONS OR OMISSIONS RESULTING IN INFRINGEMENT, NEGLIGENCE, TORTIOUS ACTION, VIOLATIONS OF LAW, VIOLATIONS OF THIS AGREEMENT, IMPROPER PURPOSES, INTENTIONAL MISCONDUCT, DAMAGE OR HARM to third parties.
(b) By Company. THE COMPANY AGREES TO INDEMNIFY AND HOLD HARMLESS the CUSTOMER FROM ANY CLAIMS, CAUSES OF ACTION, DISPUTES, CONTROVERSIES, LOSSES, COSTS, DAMAGES, EXPENSES, OR LIABILITIES, INCLUDING ATTORNEYS’ FEES, COURT COSTS, AND LITIGATION EXPENSES RELATED THERETO, ARISING OUT OF OR IN CONNECTION WITH THIRD-PARTY CLAIMS OF INFRINGEMENT BASED ON THE customer’s proper USE of the SOFTWARE OR FEATURES under this agreement WHERE AND ONLY TO THE EXTENT THE ALLEGED INFRINGEMENT CLAIM DIRECTLY RELATES TO THE SOFTWARE OR FEATURES, AS PROVIDED BY THE COMPANY, AND NOT TO ANY MODIFICATIONS, ADAPTATIONS, DERIVATIVES OR EXTENSIONS MADE BY CUSTOMER, WHETHER IN COMPLIANCE WITH OR IN VIOLATION OF THIS AGREEMENT, OR RELATED TO ANY CUSTOMER NEGLIGENCE, MISUSE, MISCONDUCT, OR RELATING TO CUSTOMER’S OWN SOFTWARE OR INTELLECTUAL PROPERTY.
- COMPLIANCE WITH LICENSES. Customer hereby agrees that, no more than once every 12 months, the Company or its authorized representative shall, upon 10 days’ prior notice to Customer, and subject to an appropriate non-disclosure agreement and other reasonable safeguards to protect Customer’s Confidential Information, have the right to inspect and audit end-user records, systems and facilities to verify that use of any and all of the Software or its respective updates and Features is in conformity with Customer’s then-valid Licenses. If verification discloses that use is not in conformity with the Customer’s then-valid License, the Customer shall be required to immediately obtain the necessary valid Licenses to bring its use into conformity and pay all applicable fees on a retroactive and going-forward basis through the remainder of the Term. The Parties agree that this right to conduct an inspection and audit may be performed by the Company, any applicable third-party intermediary, distributor, reseller or sublicensor, or by a neutral third-party auditor, at the Company’s sole expense. In the event the audit reveals that Customer’s use is not in conformity with the Customer’s then-valid License, the costs of the audit shall be reimbursed in full by Customer.
- EXPORT RESTRICTIONS. Use of the Software and its respective updates and Features is subject to United States’ export laws and regulations. Customer must comply with all domestic and international export laws and regulations that apply. All rights of Customer are forfeited, and all Licenses granted herein are automatically revoked and terminated if Customer violates the terms of any applicable law or regulation or the terms of this Agreement.
- U.S. GOVERNMENT LICENSE RIGHTS. The Software and Features were developed entirely at private expense, and is commercial computer software within the meaning of the applicable acquisition regulations. Pursuant to US FAR 48 CFR 12.212 and DFAR 48 CFR 227.7202, use, duplication and disclosure of the Software and its respective updates and Features by or for the U.S. Government or a U.S. Government subcontractor is subject solely to the terms and conditions set forth in this Agreement, except for provisions which are contrary to applicable mandatory federal laws.
- LIMITED CUSTOMER TRADEMARK LICENSE. Customer hereby grants to the Company a limited, nonexclusive, non-assignable, non-transferrable, non-sublicensable, royalty-free, fully-paid, worldwide license to use Customer’s regular trade names, trademarks, titles and logos (collectively, the “Licensed Marks”) on the Company’s website, portfolio, and in the advertising, promotion and sale of the Company’s various products and services, using the Licensed Marks only to identify that Customer is a valued client of the Company. The Company’s use of the Licensed Marks shall be in good taste, good faith, and shall be consistent with the Customer’s deliveries of specimens of the Licensed Marks, if any. Company shall not make or permit alteration, modification or improper use of the Licensed Marks. Company will not use Customer’s Licensed Marks to imply partnerships, joint ventures or in any way that might result in confusion as to the separate and distinct identities of Company and Customer. Customer shall have the right to inspect and correct Company’s use the Licensed Marks to be consistent with the terms and conditions of this Agreement. The Company recognizes and acknowledges Customer’s ownership and title to the Licensed Marks and the goodwill related thereto and agrees that any goodwill which accrues because of Company’s use of such marks shall be and remain the property of Customer. Company further agrees not to contest or take any action in opposition to any trademark, servicemark, tradename or logo of Customer or to use, employ or attempt to register any mark or tradename which is substantially similar to any mark or name of Customer.
(a) Entire Agreement. This Agreement, together with the related Customer Invoices or applicable third-party intermediary, distributor, reseller or sublicensor agreements issued in connection herewith, collectively contain the final, complete and fully integrated agreement relating to its subject matter and supersedes all prior or contemporaneous agreements. In the event of a conflict between the terms of this Agreement and any third-party intermediary, distributor, reseller or sublicensor agreements issued in connection herewith, the terms and conditions of this Agreement shall prevail and govern. These terms and conditions are subject to change, modification and update by the Company from time to time in its sole discretion, and shall be deemed accepted upon use of the Software and its respective updates and Features by Customer following electronic notice to Customer of such changes.
(b) Notices. Any notice required by or in connection with this Agreement shall be in writing and shall be given to the appropriate party by personal delivery or by email, certified mail, postage prepaid, or recognized overnight delivery services to the contact provided in the Customer Invoice or at to firstname.lastname@example.org. If you have any questions about this Agreement, or if you want to contact the Company for any reason, please direct all correspondence to email@example.com. Each party agrees to keep current all contact information, and provide the other with notice of changes in writing.
(c) Severability. If any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, it shall first be modified to the minimum extent necessary to be enforceable under applicable law, and if not possible, then this Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included.
(d) Governing Law; Venue; Attorneys’ Fees. The parties shall attempt to promptly resolve through good faith negotiation any and all disputes arising out of or in connection with this Agreement or its performance, including, but not limited to, any questions regarding the existence, validity or termination hereof. This Agreements shall be governed in all respects by the laws of the State of Washington and the United States of America as such laws are applied to agreements entered into and to be performed entirely within the state of Washington without reference or regard to its conflicts of laws provisions. This Agreement is prepared and executed in the English language only and any translations of this Agreement to any other language shall have no effect. All proceedings related to these Terms will be conducted in the English language. In the event of any litigation or arbitration between the parties hereto arising out of this Agreement, the prevailing party shall be allowed all reasonable attorneys’ fees, court costs, arbitration fees and expenses incurred in such litigation or arbitration, including all such expenses incurred on appeal. All disputes arising under this Agreement or any arbitration shall be brought in the Superior Court of King County, Washington or the U.S. District Court for the Western District of Washington, and the parties consent to the exclusive jurisdiction of these courts.
(e) Assignment. Customer may not assign any rights under this Agreement without the prior written approval of the Company. The Company may assign this Agreement, including its rights and obligations hereunder, in whole or in part, by operation of law, or in the event of a merger, acquisition or similar transaction.
(f) Waiver. Failure or delay by either party to exercise or enforce any right conferred by this Agreement shall not be deemed to be a waiver of any such right. Further, a waiver, express or implied, by either party of any default by the other in the observance and performance of any of the conditions, covenants or duties set forth in this Agreement shall not constitute or be construed as a waiver of any subsequent or other default.
(g) Relationship of Parties. The relationship of the parties shall be that of independent licensor and licensee of software on an independent contractor basis, and nothing herein shall create any form of agency partnership, joint venture or other form of association.
(h) Survival. Upon termination of this Agreement for any reason, the provisions of Sections 1, 3, 4 and 8 through 20 shall survive indefinitely.
(i) Authority; Enforceability. If the Customer is a corporation, limited liability company, partnership, joint venture, trust or other business entity, then the individual signing this Agreement, signifying acceptance or manifesting assent to these terms and conditions or otherwise accessing the Software or its respective Features represents and warrants that they have sufficient authority to bind the Customer to this Agreement, and Customer hereby agrees that this Agreement shall be legally binding and enforceable against Customer in accordance with its terms.
The parties have executed this End-User License Agreement with express intent to be bound hereby.