PEACH FUZZER PROFESSIONAL EULA

END-USER LICENSE AGREEMENT: PEACH FUZZER™ PROFESSIONAL

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 (the “Company”) and the customer, individual or entity, set forth on the applicable Customer Invoice (the “Customer”), governing the Customer’s license to and use of the Software, Definition Files and Features.

 

  1.             DEFINITIONS.

 

(a)           “Customer Invoice” means that certain final invoice issued by the Company to the Customer that identifies the specific license to products and services of the Company that the Customer has purchased.

(b)           “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.

(c)           “Features” mean the features and Software capabilities made available to Customer under a paid and active Peach Fuzzer Professional 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.

(d)           “Internal Networks” refer to the Customer’s Internal Networks and cloud service providers (internal use only).

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

(f)            “Licenses” mean, collectively, the Peach Fuzzer Professional License and the Peach Pit License granted hereunder.

(g)           “License Fees” mean the amounts shown as due and owing as fees payable to the Company pursuant to the Customer Invoice for the Licenses requested by Customer.

(h)           “Per Concurrency” refers to the number of individual or single concurrent users that may access (or concurrent instances of access) and use the Software, Definition Files and Features within the Territory provided under the Peach Fuzzer Professional License and/or the Peach Pit License for the duration of the license Term, as set forth on the applicable Customer Invoice.

(i)             “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 Professional License.

(j)             “Support Services” refer to basic support services consisting of email helpdesk support available Mon-Fri (non-U.S. Holidays) from 10am-5pm PST for deployment and bug fixes.

(k)           “Support Materials” refer to documentation, tools, information and materials provided by the Company under the subscription for Support Services.

(l)             “Territory” means that certain geographical territory identified on the applicable Customer Invoice.

(m)          “Professional” means the Software, Features and Support Services as described at peachfuzzer.com/solutions/testsuites/.

  1.             GRANT OF PEACH FUZZER PROFESSIONAL LICENSE.  Subject to Customer’s timely payment of all applicable License Fees, and compliance with this Agreement, 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 users, on a Per Concurrency basis, to concurrently use and run one instance of the Peach Fuzzer Professional Software (including accompanying Features and updates) on one internal Customer computer or virtual machine (Per Concurrency), solely within the Territory and for the Term, and subject to the terms and conditions of this Agreement (the “Peach Fuzzer Professional License”).
  2.             GRANT OF PEACH PIT LICENSE. Subject to Customer’s timely payment of all applicable License Fees, and 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, on a Per Concurrency basis, to concurrently 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 (Per Concurrency), solely within the Territory and for the Term, and subject to the terms and conditions of this Agreement (the “Peach Pit License”).
  3.             TERMS AND CONDITIONS OF LICENSES.  The following terms and conditions apply to both Licenses granted hereunder.

(a)           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.  

(b)           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.

(c)           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 Job, at a time.  A single “Job” refers to 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. Customer is restricted to performing one single job Per Concurrency. Customer is expressly prohibited from offering any form of SaaS (Software as a Service) services to any third party utilizing any Licenses granted hereunder.

(d)           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’s intellectual property rights, or in any otherwise unlawful manner. Customer may not claim any proprietary rights in the Definition Files or derivative works thereof.

(e)           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 (Per Concurrence) within the same Internal Network, pursuant to the Peach Fuzzer Professional License. The total number of concurrent users or instances of access able to use the Software on such Computer file server(s) may not exceed the number of valid Per Concurrency Licenses 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.

(f)            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.

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

(a)           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.

(b)           No Modifications; Derivatives. Customer shall not extend, modify, adapt or translate the Software, Definition Files, Libraries, support components, or other such components or Features, or make any derivative works thereof.

(c)           No Reverse Engineering. 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

(d)           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 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 or its component parts, including any additional functionality provided with future updates, support services, or otherwise made available.

(e)           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.
  2.      SUPPORT & TRAINING.

(a)     Support Services.  The 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.

  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 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.
  2.      TERMINATION.

(a)     By the Company.  The Company may terminate this Agreement for any reason, upon 30-days’ written notice.  The Company may terminate this Agreement at any time upon material breach by the Customer, including breach for 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 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 event of early termination of this Agreement by either party, Customer acknowledges that no refunds or other amounts prorated will be issued or refunded to Customer.

  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.
  2.     INTELLECTUAL PROPERTY. 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 right, 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.
  3.     LIMITED WARRANTY. The Company only warrants that the Software, Definition Files, or their respective updates and Features as provided will be free from defects in material and manufacture for a period of thirty (30) days from the date of delivery to Customer. 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. 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.
  4.        DISCLAIMER OF WARRANTY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LIMITED WARRANTIES IN SECTION 12 ARE EXCLUSIVE. the Company PROVIDES THE SOFTWARE, DEFINITION FILES, UPDATES AND ACCOMPANYING FEATURES, AND ACCESS TO ANY WEBSITES, ONLINE SERVICES, AND CERTIFICATE AUTHORITY SERVICES “AS-IS” AND “WITH ALL FAULTS” AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF 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.
  5.     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 either, at the Company’s option, replacement of that applicable in the Software, Definition Files, or their respective updates and Features or 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 OR ITS LICENSORS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 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, TOGETEHR 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 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, 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 USE of the SOFTWARE, DEFINITION FILES OR FEATURES 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 IN VIOLATION OF THIS AGREEMENT, OR TO CUSTOMER SOFTWARE OR CUSTOMER 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, 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.
  2.     THIRD-PARTY ONLINE SERVICES. Software, Definition Files, or their respective updates and Features, or Support Services may rely upon or facilitate Customer 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.
  3.     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 this Agreement.
  4.     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 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.
  5.     MISCELLANEOUS.

(a)     Entire Agreement. This Agreement, together with the Customer Invoice, contains 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 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 Peach Fuzzer LLC 1122 E Pike St #1064, Seattle WA 98122. If you have any questions about this Agreement, or if you want to contact the Company for any reason, please direct all correspondence to: Peach Fuzzer LLC 1122 E Pike St #1064, Seattle WA 98122. Each party agrees to keep current all contact information.

(c)     Severabilty. If any term of these Terms 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 these Terms, 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 these Terms or its performance, including, but not limited to, any questions regarding the existence, validity or termination hereof. These Terms 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. These Terms are prepared and executed in the English language only and any translations of these Terms 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 these Terms, 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 these Terms or any arbitration shall be brought in the Superior Court of King County, Washington or the U.S. Federal 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 these Terms 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 these Terms 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 partnership, joint venture or other form of association.

(h)     Survival.  Upon termination of this Agreement for any reason, the provisions of Sections 1, 5, and 9 through 20 shall survive indefinitely.

BY ACCESSING OR USING THE SOFTWARE, DEFINITION FILES AND FEATURES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT.

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