PEACH FUZZER EULA

END-USER LICENSE AGREEMENT: PEACH FUZZER™

End-User License Agreement:

 

IMPORTANT: CAREFULLY READ THIS END USER LICENSE AGREEMENT BEFORE ACCESSING OR USING THE SOFTWARE, DEFINITION FILES OR FEATURES.  BY ACCESSING OR USING THE SOFTWARE, DEFINITION FILES 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 customer, individual or entity, set forth on the applicable Customer Invoice (“Customer”), governing the Customer’s license to and use of the Software, Definition Files and Features, as well as the Customer’s license to create and use Customer Peach Pits.

 

 

  • Customer Invoice” means that certain final invoice issued by the Company to the Customer that identifies the specific License(s) to products and services of the Company that the Customer has subscribed for.

 

  • Definition File(s)” means any Peach Pit files, development tools, and software programs developed by the Company and provided in the Peach Pit library subject to a current Peach Pit License.

 

  • Features” mean the features and Software capabilities made available to Customer under a paid and active Peach Fuzzer License for use of the Software, and includes development tools, software programs, documentation, the applicable Peach Pit License (as identified on the applicable Customer Invoice), 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).

 

  • Library” or “File Library” means any and all versions of the support file library containing Peach Pits and developed by the Company.

 

  • Licenses” mean, collectively, the Peach Fuzzer License, the Peach Pit License and the Developer License granted hereunder.

 

  • License Fees” means the amounts due and owing to Company by Customer as set forth on the applicable Customer Invoice.

 

  • “Overage License Fees” means the amounts due and owing to Company by Customer as set forth on the applicable Customer Invoice for additional blocks of 100,000 Test Case instances of the Peach Fuzzer License and Peach Pit License.

 

  • Per Seat” refers to each separate, single, individually identified Developer expressly designated by Customer under the Developer License, as reflected on the Customer Invoice.

 

  • Software” refers to the Peach Fuzzer™ software and associated software components, including development tools, software programs, documentation, and accompanying features available under Customer’s applicable Peach Fuzzer 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.

 

  • Territory” means that certain geographical territory identified on the applicable Customer Invoice.

 

  • Test Case” means, with respect to Customer’s use of the Software, running one instance of the Software with a single instance of a Definition File or Customer Peach Pit to fuzz test the same, single target internally within the Customer’s network.

 

  1. GRANT OF PEACH FUZZER 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, to use and run one instance of the Peach Fuzzer Software, including accompanying Features and updates, on one internal Customer computer or virtual machine, on a per-Test Case basis, solely within the Territory and for the Term, and subject to the terms and conditions of this Agreement (the “Peach Fuzzer License”).

 

  1. GRANT OF PEACH PIT LICENSE. Subject to Customer’s timely payment of all applicable License Fees, and 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 for each of the named or designated users, to use and run one instance of each of those certain Definition Files identified on the Customer Invoice on one internal Customer computer or virtual machine on a per-Test Case basis, solely within the Territory and for the Term, and subject to the terms and conditions of this Agreement (the “Peach Pit License”).

 

  1. GRANT OF DEVELOPER & DERAVITIVE LICENSES.

 

  • Subject to Customer’s timely payment of all applicable License Fees, and full and continued compliance with this Agreement, including the terms of Section 12 below, the Company hereby grants to the Customer a limited, revocable, non-exclusive, non-transferable, non-assignable, non-exclusive license for each of the named or designated developers (each, a “Developer”), on a Per Seat basis, to develop and create customized Definition Files and Software extensions that are functionally compatible with and used solely in connection with the Software and Features (each a “Customer Peach Pit”) on one internal Customer computer or virtual machine (Per Seat), solely within the Territory and for the Term, and subject to the terms and conditions of this Agreement (the “Developer License”).

 

(b) Subject to Customer’s timely payment of all applicable License Fees, and full and continued compliance with this Agreement, including the terms of Section 12 below, in connection with the Developer License, the Company hereby grants to the Customer a limited, revocable, non-exclusive, non-transferable, non-assignable, non-exclusive license for the named Developer(s), on a Per Seat basis, to adapt, modify and create derivatives of any Company Definition Files for which Customer has a valid Peach Pit License (each a “Customer Peach Pit”) on one internal Customer computer or virtual machine (Per Seat), solely within the Territory and for the Term, and subject to the terms and conditions of this Agreement (the “Derivative License”).

 

  1. TERMS AND CONDITIONS OF LICENSES. The following terms and conditions apply to all Licenses granted hereunder.

 

  • The Pre-Paid License Fee Structure allows the Customer to purchase a set number of single instances (on a per Test Case basis) of the Peach Fuzzer License and Peach Pit License (as applicable) as well as the Developer License (as applicable), up front, for a set price, as set forth on the applicable Customer Invoice. The Customer’s use of the Peach Fuzzer License and Peach Pit License shall be limited to that specific number of Test Cases set forth on the applicable Customer Invoice. All Licenses shall be paid for by Customer in advance. Subject to Section 5(b) below, Customer may exceed the number of authorized Test Cases for the Peach Fuzzer License and/or Peach Pit License, without first contacting the Company and arranging for the renewal, extension or grant of new and additional Licenses, by simply continuing to use the Licenses granted herein in excess of the number of authorized number of Test-Cases set forth on the applicable Customer Invoice.

 

  • Overages; True Up. In the event the Customer has exhausted the number of Test-Cases under the Licenses granted hereunder for which the Customer has paid the applicable License Fees (as established by reference to the applicable Customer Invoice), and the Customer continues to use the Licenses granted herein, such continued use shall constitute a voluntary election by Customer to purchase an additional number of single instances of the Peach Fuzzer License and Peach Pit License (as applicable), on a per Test Case basis, each in minimum blocks of 100,000 Test Cases only, and pay the additional Overage License Fees therefor on a quarterly basis in arrears based on the actual use. The Customer’s use of the Peach Fuzzer License and Peach Pit License shall be monitored (electronically via third-party) quarterly, and at the end of each calendar quarter, the Company will invoice the Customer for the Overage License Fees due based on the actual number of Customer Test Cases occurring during that quarter. By way of example, once the Customer goes over their initial allotment of Test Cases, even by a single Test Case, they will automatically be charged the Overage License Fee for an additional minimum block of 100,000 Test Cases. The “True-Up Period” shall be the 45 day period following each calendar quarter, during which the Company shall determine the actual number of Customer Test Cases that occurred during that quarter beyond that which was authorized in exchange for the Pre-Paid License Fees, and the Company shall calculate the Overage License Fees due thereon. The Company shall send an invoice to the Customer for such Overage License Fees, and the Customer shall pay to Company those Overage Licenses Fees pursuant to the terms of the applicable Customer Invoice.

 

  • No Sale. The Customer’s access to and use of the Software, Definition Files 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, Definition Files 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, Definition Files, 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. The Licenses shall also permit Customer to access certain Definition Files and certain tools within the applicable Library and other features available under such Library.

 

  • No Use for Professional Services. The Licenses granted herein permit Customer to utilize the Software and Definition Files, Customer Peach Pits (together with their respective Features) for the limited purpose of fuzz testing to one client, per single internal Customer Test Case, at a time. Customer is expressly prohibited from using the Software, Definition Files or Customer Peach Pits in connection with services offered to any third-party, and from offering any form of SaaS (Software as a Service) services to any third party utilizing any Licenses granted hereunder.

 

  • Peach Pit Definition Files. Unless stated otherwise in the “Read-Me” files associated with the Definition Files, which may include specific rights and restrictions with respect to such Definition Files, Customer may display, copy, and distribute any of the Definition Files.  However, Customer may not distribute the Definition Files on a stand-alone basis (i.e., circumstances in which Definition Files constitute the primary value of the product being distributed).  Definition Files may not be used in the production of libelous, defamatory, fraudulent, lewd, obscene, or pornographic material, or any material that infringes upon any third-party intellectual property rights, or in any otherwise unlawful manner. Customer may not claim any proprietary rights in the Definition Files or derivative works thereof.

 

  • 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 Fuzzer License. The total number of Test Cases or instances of access and use of the Software on such Computer file server(s) may not exceed the number of Test-Cases authorized under the Licenses then-maintained by the Customer.  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 and Definition Files, 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, Definition Files or their respective 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 Developers 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.

 

  1. RESTRICTIONS ON USE. The following terms and conditions apply to both the Peach Fuzzer License, and the Peach Pit License.

 

  • Copyright and Trademark Notices. All copies of Software, Definition Files, documentation, 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. Subject to the limited exceptions under a valid Developer License, Customer hereby agrees not to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of any Software, Definition Files, 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 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 or Definition Files 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 or Definition Files for use on different computers without express permission.  Customer shall not unbundle or repackage for resale any Software, Definition Files 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, Definition Files or any accompanying Features, in any form, or authorize or make copies available to another individual or entity.

 

  1. Updates. The Company may, from time to time in its sole discretion, release updates to the Software, Definition Files and Features on a periodic basis.  Updates will be sent via email 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.

 

  1. 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 support@peachfuzzer.com.

 

  1. 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 will continue for the greater of a period of one (1) year or the minimum license period identified in the applicable Customer Invoice (“Initial License-Term”), and subject to the terms and conditions of Section 5(b), automatically renew annually thereafter for consecutive one-year terms (each a “Renewal License-Term”) unless terminated by either party on thirty (30) days’ written notice prior to the end of the Term.

 

  1. TERMINATION.

 

(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 21(h) of this Agreement will survive, but shall not imply or create any continued license or right to use the Software, Definition Files or their respective accompanying 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 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.

 

  1. INTERNET CONNECTIVITY AND PRIVACY. Customer acknowledges and agrees that installed Software may cause the computer to automatically connect to the Internet to check for software updates available for automatic download to end-user’s computer and to notify the Company servers that software was successfully installed.  Only non-personal identifying information is transmitted to the Company when this happens.  Communication with the Company electronically, including through its websites, is governed by the Company Online Privacy Policy as it may be updated from time to time in the Company’s sole discretion, and which is incorporated herein by this reference.

 

  1. INTELLECTUAL PROPERTY.

 

(a)        Ownership by Company.  All Software, Definition Files, and their respective updates and Features provided under any Licenses in 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, Definition Files, and their respective updates and Features, constitute designated valuable trade secrets and confidential proprietary information of the Company.  Software Definition Files, and their respective updates and Features provided under the license, 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, Definition Files, or their respective updates and Features.  The Company hereby exclusively reserves all rights not expressly granted herein.

 

(b)           Customer Peach Pits; Developer Perpetual License.  All Customer Peach Pits developed solely and exclusively by Customer pursuant to the Developer License granted herein shall be and remain the exclusive property of Customer, provided, however, that such Customer Peach Pits cannot be used independently or without a valid Peach Fuzzer License, and where applicable, a valid Peach Pit License, and shall not be used for commercial purposes other than the limited purpose of fuzz testing to one single Test Case at a time.  All Customer Peach Pits developed by Customer jointly or in connection with the Company, whether pursuant to this Agreement, a non-disclosure or confidentiality agreement or otherwise, shall belong solely and exclusively to the Company with an irrevocable, non-exclusive, worldwide, royalty-free, fully-paid perpetual license granted to the Customer to use such Customer Peach Pits in compliance with this Agreement, provided, however, that such Customer Peach Pits cannot be used independently or without a valid Peach Fuzzer License, and where applicable, a valid Peach Pit License, and shall not be used for commercial purposes other than the limited purpose of fuzz testing to one single Test Case at a time.  Customer may not distribute the Customer Peach Pits on a stand-alone basis (i.e., circumstances in which Customer Peach Pits constitute the primary value of the product being distributed).  Customer Peach Pits may not be used in the production of libelous, defamatory, fraudulent, lewd, obscene, or pornographic material, or any material that infringes upon any third-party intellectual property rights, or in any otherwise unlawful manner.  Nothing herein shall prohibit the Company from independently developing new Definition Files that have the same, or similar functionality as any Customer Peach Pits, even where such new Definition Files might otherwise be deemed to infringe upon such Customer Peach Pit.  Notwithstanding the foregoing, any and all Customer Peach Pits that are developed by Customer pursuant to the Developer License granted herein that are, or extensions, modifications, improvements to, derivative works of, or in any way based upon Company Definition Files (collectively, “Customer Additions”) such Customer Peach Pits shall be automatically and irrevocably hereby licensed by Customer back to the Company on an irrevocable, non-exclusive, worldwide, royalty-free, fully-paid perpetual license to use (for any purpose), exploit, enjoy, modify, and make derivatives thereof (the “Additions License”).  Nothing herein, including Customer’s extensions, modifications, improvements to, derivative works of any Company Definition Files, shall grant Customer any rights, title or interest in or to any underlying Definition Files, including the use thereof outside of the Definition Files and/or outside of the Peach Pits License granted hereunder.

 

(c)        Customer Representations and Warranties:  The Customer warrants that all Customer Peach Pits developed hereunder will not contain any computer code (i) designed to disrupt, disable, harm, or otherwise impede in any manner, including aesthetical disruptions or distortions, the operation thereof, or any other associated software, firmware, hardware, computer system or network (sometimes referred to as “viruses” or “worms”), (ii that would disable or impair in any way the operation thereof based on the elapsing of a period of time, the exceeding of an authorized number of users or copies, or the advancement to a particular date or other numeral (sometimes referred to as “time bombs”, “time locks”, or “drop dead” devices), or (iii) that would permit disablement or impairment (sometimes referred to as “traps”, “access codes” or “trap door” devices), or any other similar harmful, malicious or hidden procedures, routines or mechanisms that would cause the Software, Definition Files or related Functionality to cease functioning or to damage or corrupt data, storage, programs, equipment or communications, or otherwise interfere with operations.  The Customer further represents and warrants that the Customer’s use of the Software, together with any Definition Files, Features and Customer Peach Pits shall not infringe, violate or in any manner contravene, breach or constitute an unauthorized use or misappropriation of any patent, copyright, trademark, license or other property or proprietary right of any third party or constitute the unauthorized use or misappropriation of a trade secret.

 

  1. LIMITED WARRANTY. The Company only warrants that the Software, Definition Files, or their 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, Definition Files, or their 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, Definition Files, and their respective updates and Features depends greatly on the Customer’s use, input 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 an authorized distributor.  All warranty claims must be made, along with proof of purchase, to the Company’s Customer Support within thirty (30) days from the date of delivery to Customer.

 

  1. DISCLAIMER OF WARRANTY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LIMITED WARRANTIES IN SECTION 13 ARE EXCLUSIVE. the Company PROVIDES THE SOFTWARE, DEFINITION FILES, UPDATES AND ACCOMPANYING FEATURES, AND ACCESS TO ANY WEBSITES, ONLINE SERVICES, AND CERTIFICATE AUTHORITY SERVICES ON AN “AS-IS” BASIS 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.

 

  1. LIMITATION OF LIABILITY. If any OF the Software, Definition Files, or their 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, Definition Files, or their 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 16(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.

 

  1. 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, DEFINITION FILES, FEATURES OR any CUSTOMER PEACH PITS 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, DEFINITION FILES OR FEATURES under this agreement WHERE AND ONLY TO THE EXTENT THE ALLEGED INFRINGEMENT CLAIM DIRECTLY RELATES TO THE SOFTWARE, DEFINITION FILES 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.

  1. 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, Definition Files, or their 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 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 neutral third-party auditor shall be reimbursed in full by Customer.

 

  1. THIRD-PARTY ONLINE SERVICES. Software, Definition Files, or their respective updates and Features, or Support Services may rely upon or facilitate Customer’s access to websites maintained by the Company, or its affiliates or other third parties offering goods, content, information, software, and services (collectively, “Online Services”).  Customer’s access or use of Online Services is governed by the applicable terms of use, disclaimers, notices and privacy policies found on such sites or otherwise associated with such services, as they may be amended and updated from time to time.  The Company does not control or endorse Online Services offered by third parties and shall have no responsibility or liability therefor.  Any dealings between the Customer and any third party in connection with a website or Online Services, including delivery of and payment for goods and services and any other terms, conditions, warranties or representations associated with such dealings, are solely between Customer and such third party.

 

  1. EXPORT RESTRICTIONS. Use of the Software, Definition Files, or their 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.

 

  1. U.S. GOVERNMENT LICENSE RIGHTS. The Software, Definition Files, or their respective updates 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, Definition Files, or their respective updates and Features, together with any Customer Peach Pits, 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.
  2. 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 Cusomter or to use, employ or attempt to register any mark or tradename which is substantially similar to any mark or name of Customer.
  3. MISCELLANEOUS.

 

(a)        Entire Agreement. This Agreement, together with the related Customer Invoices 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. 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, Definition Files, or their 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 contact@peachfuzzer.com. If you have any questions about this Agreement , or if you want to contact the Company for any reason, please direct all correspondence to contact@peachfuzzer.com. Each party agrees to keep current all contact information.

            (c)        Severabilty. 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, 5, 6, and 10 through 22 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 Definition Files (or any of their 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.

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