SPIRION LICENSE AGREEMENT

Copyright © 2001-2017 Spirion, LLC

NOTICE TO ALL USERS: CAREFULLY READ THE FOLLOWING LEGAL AGREEMENT (“AGREEMENT”), FOR THE LICENSE OF SOFTWARE PRODUCED BY SPIRION, LLC (“SPIRION” OR “LICENSOR”).  THIS AGREEMENT SETS FORTH THE TERMS AND CONDITIONS UNDER WHICH SPIRION WILL LICENSE THE LICENSED PRODUCTS TO YOU, YOUR EMPLOYEES, CONTRACTORS OR AGENTS (“LICENSEE” OR “YOU”), PLACES LIMITS ON HOW YOU MAY USE THE SOFTWARE, AND MAY LIMIT OTHER LEGAL RIGHTS.  BY CLICKING THE ACCEPT BUTTON OR INSTALLING THE SOFTWARE, YOU CONSENT TO BE BOUND BY AND BECOME A PARTY TO THIS AGREEMENT.

IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT DOWNLOAD OR INSTALL THE SOFTWARE. IF YOU HAVE ALREADY DONE SO, IMMEDIATELY DELETE AND UNINSTALL THE APPLICATION AND REMOVE ALL OF ITS BINARY, DATA, AND OUTPUT FILES FROM YOUR COMPUTER.

1 Definitions: In addition to terms defined elsewhere in this Agreement, the following capitalized terms used in this Agreement shall have the meanings specified below, whenever applicable to this License:

1.1 Administrative Definitions

Addenda” or “Addendum” has the meaning set forth in Section 3, Integration and Superiority of Addenda, below.

License Date” means the date first appearing in this Agreement, or if no date exists, the date on which this Agreement was otherwise executed.

Authorized Technical Contact” means a representative of the Licensee who is authorized to receive communication from Licensor regarding the Licensed Products or this Agreement.

Employee” or “Knowledge Worker” means an employee, authorized contractor, or servant of the Licensee whose job functions require the individual to access or store data on one or more Devices.

Per-Employee” means the method of licensing and calculating fees wherein the Licensee may use the Licensed Products to search or manage the data of the specific number of Employees defined in an Addendum, irrespective of the number of Devices upon which that data is stored. For purposes of this License, the number of Employees is equal to the Licensee’s adjusted full-time employee (FTE) count (“Adjusted FTE Count”) as follows: 1 full-time Knowledge Worker = 1 FTE; 1 part-time Knowledge Worker (faculty or staff) = one half FTE. The Adjusted FTE Count shall be re-computed no more than once annually prior to the anniversary of the License Date, for the purpose of calculating applicable Fees.

Per-Device” means the method of licensing and calculating fees wherein the Licensee may use the Licensed Products to search or manage the data stored on the specific number of Devices defined in the Addenda.

Lifetime License” means the method of licensing and calculating fees wherein the Licensee may perpetually use the licensed general release of the Licensed Products, not including any Updates or Upgrades, subject to the terms of this Agreement. See Section 4.1 for Updates and Upgrades terms.

Subscription License” means the method of licensing and calculating fees wherein the Licensee may use the Licensed Products, including any Updates and Upgrades released during the subscription period defined in the Addenda, in exchange for the Subscription Fee (described below).

Limited-Execution License” means the method of licensing and calculating fees wherein the Licensee may use the Licensed Products only until such time as the Software has been executed the certain number of times defined in the Addenda.

Sameness Rule” means that if the License is issued on a Per-Device basis, then the License may only be internally transferred to a replacement Device whose business function(s) and storage size(s) are identical or substantially similar to the licensed Device’s business function and storage size, if the original Device was retired or destroyed. If the License is issued on a Per-Employee basis, then the License may only be transferred to a new Employee whose job responsibilities are identical or substantially similar to the original authorized Employee’s job responsibilities, if the original employee was severed from the company or assigned disparate job responsibilities.  Provided, however, that in no case shall more than 33% of the licenses be transferred in any calendar year.  The following examples illustrate how the Sameness Rule works:

  • A company may not transfer Device or Employee Licenses to a different department. This transfer violates the Sameness Rule because neither the Employees’ job descriptions nor the Devices are the same as the Authorized Employees or Devices in the original department.
  • An IT manager may not temporarily install a single Per-Device-licensed copy of the Software on multiple Devices, even if the manager later uninstalls the Software. This transfer violates the Sameness Rule because the license extends only to a single Device.
  • A company which regularly replaces old computers on a three-year cycle may transfer the Software to replacement computers because the new computers have an identical or substantially similar business function to the original authorized computers, and the original authorized computers were retired.
  • After an Employee terminates employment from a company, the company may use a Per-Employee-licensed copy of the Software to search the data of a replacement Employee with the same or substantially similar job responsibilities.
  • A venture capital firm may not purchase Device or Employee licenses and transfer them from an old acquired company to a new acquired company. This transfer violates the Sameness Rule because neither the new Employees nor the new Devices are the same.
  • However, a company which is acquired may maintain its Per-Employee or Per-Device License if the company maintains its Employees or Devices.

1.2 Product, Edition, and Module Definitions

Software” means the certain executable computer software program(s), designated by various Software Edition trade names, and all Updates and Upgrades (as defined below) produced by Spirion, which perform sensitive data management and loss prevention, or other related services. “Software” shall not mean the Software’s source code.

Module” means a set of functions designed to perform specific tasks within the Software, which may be licensed separately or as part of a Software Edition.  No Modules are included as a part of your license unless specifically stated herein or in an Addendum hereto.  Modules may include, by way of example and not limitation, the Enterprise Console, Website Search Module, Database Search Module, Exchange Search Module, Lotus Notes Search Module, and OCR Image Search Module.

Supported Platforms” means the Windows operating system (Windows XP with Service Pack 3 and newer) and the Macintosh operating system (Mac OS X 10.4 and newer on Intel hardware).

Licensed Product(s)” means the licensed Software, Software Module(s) and associated Software documentation (“Documentation”).

Website” means the domain “spirion.com,” its subdomains, related domains, or any successor URL or domain, and all webpages therein.

Update” means a change in the Software denoted by a fractional increase in the Software version number (for example from 7.0 to 7.1 or 7.1.0 to 7.1.1). An Update may be comprised of revisions, enhancements, corrections, bug fixes, additional features, adaptations of existing features, or removal of deprecated features or functions from the Software; or revisions to the Documentation including user guides or other printed or online material applicable to the Software.

Upgrade” means a new general release of the Software denoted by a whole number change in the version, for example from 6.x to 7.0.

1.3 Device and Technical Definitions

Device” means an electronic computing device—owned or leased by Licensee—which is capable of executing the Software program. A Device may have no more than four (4) Internal Drives, zero (0) External Drives, and two (2) Temporary Storage Devices connected to it over time as part of that Device’s normal business function.  Devices may include but are not limited to desktop or laptop computers, workstations, servers, Logical Hosts, and Physical Hosts.  “Device” also means an External Drive, even if the External Drive is incapable of executing the Software program.

Physical Host” means a physical Device or server—owned or leased by Licensee—which provides services to other programs, Devices, or users on the Physical Host or over a computer network.

Logical Host” means a virtual Device or server which provides services to other programs, Devices, or users on a Physical Host or over a computer network. A Logical Host is instantiated on a Physical Host in such a way that it may share the Physical Host’s computing or storage resources with other Logical Hosts. A single Physical Host may run a large number of Logical Hosts, each Logical Host operating as a separate Device on a computer network.

Server-Class Device” means a Physical Host unless more than one Logical Host exists on a Physical Host, in which case “Server-Class Device” means a Logical Host.

Non-Server-Class Device” means any Device other than a Server-Class Device, including but not limited to workstations, laptops, desktops or other Device.

Drive” means a piece of electronic equipment—owned or leased by Licensee—which is capable of storing digital information that persists while the power to the equipment is turned off.

Internal Drive” means a Drive physically located inside a Device which is not easily disconnected from the Device.

External Drive” means a Drive which is capable of storing more than 32 Gigabytes (GB) of digital information, which may be easily connected to or removed from a Device. By way of example and not limitation, External Drives include external, network, removable, cloud, or temporary hard drives; or any Device or Temporary Storage Drive with more than 32 GB of digital storage capability, which may be easily connected to or removed from another Device.

Temporary Storage Drive” means a Drive which is capable of storing not more than 32 GB of digital information, which may be easily connected to or removed from a Device. Temporary Storage Drives include, without limitation: Thumb drives, smart phones, MP3 players, or similar electronic equipment with not more than 32 GB of storage capacity.

2 General Terms of License

2.1 Ownership: The Licensed Products are protected by United States copyright laws and international treaty provisions. The software is licensed, not sold. This Agreement only gives Licensee some rights to use the software. Spirion and its suppliers own and retain all right, title and interest in and to the Licensed Products, including all copyrights, patents, trade secret rights, trademarks and other intellectual property rights therein.  Specific third-party license terms applying to portions of the Licensed Products are set forth at the following URL:  http://www.spirion.com/us/Company/ThirdPartyLicensing and are hereby incorporated by reference. Licensee’s possession, installation, or use of the Licensed Products does not transfer to Licensee any title to the intellectual property in the Licensed Products, and Licensee shall not acquire any rights to the Licensed Products except for the use of the Licensed Products as expressly set forth in this Agreement.  All copies of the Licensed Products must contain the same proprietary notices that appear on and in the Licensed Products. All rights not expressly set forth hereunder are reserved by Spirion.

2.2 Scope of License: Licensor grants to Licensee a personal, non-exclusive, non-transferable, limited-scope, License to use the Licensed Products specified in the Addenda, or otherwise licensed by operation of this Agreement.  

2.2.1 The functionality of the Licensed Products depends upon the licensed Edition of the Software and Modules, as defined at the Edition Function URL on the License Date, and as revised from time to time.

2.2.2 Unless applicable law gives Licensee more rights despite this limitation, Licensee may use the software only as expressly permitted in this Agreement.  In doing so, Licensee must comply with any technical limitations in the Software that only allows Licensee to use it in certain ways.

2.2.3 Licensee may search only the data on specific Devices (if licensed Per-Device), or the data of a specific number of Employees (if licensed Per-Employee) authorized by this Agreement, on Devices owned or leased by Licensee (“Authorized Devices”).

2.2.4 Unless otherwise specified, the License is non-transferable, except in accordance with the Sameness Rule

2.2.5 If the Software is licensed as a suite or bundle with more than one specified Software product, this license applies to all such specified Software products, subject to any restrictions or usage terms specified on the applicable price list, product packaging, or Addenda that apply to any of such Software products individually.

2.2.6 Licensee may not permit third parties to benefit from the use or functionality of the Software via a timesharing, service bureau, or other arrangement. Licensee may not distribute, license, sublicense, rent, lease, loan or resell the Software.

2.2.7 Licensee may not reverse engineer, decompile, or disassemble the Software.

2.2.8 Licensee may not modify or create derivative works based upon the Software in whole or in part.   Notwithstanding, Licensee may copy the Documentation and create derivative works from the Documentation solely for Licensee’s internal use and to facilitate Licensee’s use of the Licensed Products.

2.2.9 Licensee may not remove any proprietary notices or labels on the Software without first receiving written permission from Licensor.

2.3 Updates and Upgrades: Licensor may, from time to time, provide Updates and Upgrades. Except as set forth elsewhere in this Agreement, Spirion reserves the right to change its products in its sole discretion. Licensor may add new Software functionality, modify existing functionality, but shall not materially reduce Software functionality without prior notification to Licensee.

Spirion has no obligation to modify the Software, provide Updates or Upgrades to the Software, provide Support (except as explicitly stated herein) for the Software, assist in installing the Software, change the Software to run on an unsupported platform or make any other changes to the Software except as set forth herein. Notwithstanding the foregoing, Spirion agrees to provide Updates to the Software to ensure ongoing compatibility with new releases of Supported Platforms within 120 days of general availability of such new releases, provided your license permits you to receive Updates.

Spirion agrees to notify Licensee’s Authorized Technical Contacts within ten (10) business days following the release of Updates or Upgrades to the Software. Licensee may choose not to install an Update or Upgrade. However, failure to install any Update or Upgrade may permanently inhibit Licensee from installing future Updates or Upgrades and/or receiving Support.

2.4 Support: Provided your License permits you to receive maintenance and support services (“Support”), Spirion shall offer Support on the then current general release of the Software, as well as the most recent Update to the prior general release.  Support shall include the following:

  • Email or Website service ticket support service from 9:00 AM – 5:00 PM (Eastern Time), Monday through Friday except public holidays.  Directions for submitting support requests can be found at http://support.spirion.com
  • Spirion’s efforts to correct reproducible Defects in the then current release of the Software. “Defect” means the failure of the software to substantially conform to the user manuals and Documentation, when such failure can be reproduced and documented by Spirion.
  • Support shall not include on-site services.

With sixty (60) days’ advance written notice, Spirion may change its Support policy from time to time provided that Support features and services are not reduced or limited from those set forth herein in any material way.

2.5 Payment: Licensee agrees to pay Spirion all applicable Fees set forth in the Addenda. Payment is due net thirty (30) days’ following the date of Spirion’s invoice.  Invoices which remain unpaid at least thirty (30) days are subject to a late fee in the amount of one percent (1%) of the arrearage, plus interest on the unpaid balance at five percent (5%) per annum until paid.

Spirion agrees to invoice Licensee for the annual renewal of maintenance and Support at least thirty days in advance of the anniversary of the License Date.  Licensee shall signify its desire to renew Maintenance and Support for an additional one-year term by paying said renewal invoice net thirty (30) days following its receipt.

2.6 Audit Rights: No more than once annually and with no less than ten (10) business days’ advance written notice, Spirion may audit Licensee’s written records regarding Licensee’s use of the Software to verify compliance with the terms of this Agreement.

2.7 Validation of License: Spirion utilizes license keys or activation codes (“Activation Code”) to activate Licenses and grant access to certain features in the Software.  When Licensee installs the Software on a Device, the Software may from time to time automatically communicate the Activation Code to Spirion’s servers to verify that the software is validly licensed.  If the software is not validly licensed, Spirion shall attempt to contact Licensee to resolve the issue.  The validation process of the Software does not transmit personally identifying information, and is used only for the purpose of validating the License.

Spirion reserves the right to remotely disable the Software if it reasonably and in good faith suspect gross abuse or fraud on the License, and has attempted to notify Licensee, and the Licensee has not cured the abuse or fraud within thirty (30) days.

2.8 Product Enhancement Program: The Software may, from time to time, automatically send non-identified feedback about usage habits, Software performance, bugs, etc. to Spirion servers.  This information is used by Spirion to improve the Software, and not to identify you.  Instructions for opting out of the Product Enhancement Program may be found in the Documentation.

3 Integration and Superiority of Addenda: Licensor may from time to time issue quotes and terms for additional licenses, or amendments to existing licenses.  Each quote or purchase order executed by the Parties on or after the License Date shall be incorporated into this Agreement and considered an addendum hereto (“Addenda”).  Additional terms in an Addendum shall only be applicable to that specific Addendum, and shall not govern or be applicable to any other Addendum, unless expressly stated therein.  In the event of any conflict between the terms of this Agreement and the terms of an Addendum, the terms of the Addendum shall govern. Any licenses granted by Licensor prior to the License Date shall be subject to and governed by this Agreement.

4 License-Specific Terms: The following terms in this Section apply to the Licensed Products, based upon the License purchased by Licensee.

4.1 Specific Terms for Lifetime Licenses: The terms and conditions in this Subsection shall apply only to Lifetime Licenses.

4.1.1 Lifetime License Fee: Subject to the terms and conditions of this Agreement, payment of the one-time fee for the Licensed Products (“Software Fee”) shall entitle the Licensee to a non-exclusive, non-transferable, fully paid-up perpetual license for Licensee to use the Licensed Products to search all Authorized Devices as set forth more completely herein and in the attached Addenda.

4.1.2 Maintenance Fee: Subject to the terms and conditions of this Agreement, payment of the annually recurring fee for Updates, Upgrades, and Support (“Maintenance Fee”) shall entitle the Licensee to a non-exclusive, non-transferable, fully paid-up license for Licensee to download, install, and use any Updates and Upgrades issued by Spirion during the term covered by the Maintenance Fee. Payment of the Maintenance Fee shall also entitle Licensee to Support during the term covered by the Maintenance Fee.

Licensee’s initial annual Maintenance Fee is set forth in the applicable Addenda. Licensor shall notify Licensee of annual increases to the Maintenance Fee at least thirty (30) days prior to the due date of an invoice.  Failure to pay the Maintenance Fee at the beginning of the maintenance term shall terminate all rights to receive new Updates, Upgrades, and Support.

4.2 Specific Terms for Subscription Licenses: The terms and conditions in this Subsection shall apply only to Subscription Licenses.

4.2.1 Subscription License Fees: Subject to the terms and conditions of this Agreement, payment of the term-recurring fee for subscription to the Licensed Products (“Subscription Fee”) shall entitle the Licensee to a non-exclusive, non-transferable license for Licensee to use the Licensed Products to search all Authorized Devices as set forth more completely herein and in the attached Addenda, for the term of the subscription. The term of the subscription shall be one year, unless otherwise agreed in an applicable Addendum.

Payment of the Subscription Fee shall also entitle the Licensee to Support, and a non-transferable license for Licensee to download, install, and use any Updates and Updates issued by Spirion, during the term of the subscription. Failure to pay the Subscription Fee at the beginning of each subscription term shall terminate the License and all rights to receive Updates, Upgrades, and Support.

4.3 Specific Terms for the Limited-Execution License: The terms and conditions in this Subsection shall apply only to the Limited-Execution License.

4.3.1 Limited-Execution License Fees: Subject to the terms and conditions of this Agreement, payment of the one-time fee for a Limited-Execution License (“Subscription Fee”) shall entitle the Licensee to a non-exclusive, non-transferable license for Licensee to use the Licensed Products to search all Authorized Devices as set forth more completely herein and in the Addenda, only until such time as the Software has been executed the certain number of times defined in the Addenda (“Allowed Searches”).

Payment of the Subscription Fee shall not entitle the Licensee to Updates, Upgrades or Support.

5 Termination of License: This Agreement shall remain in effect until terminated in accordance with its terms.  Either Party shall have the right to terminate this Agreement in the event the other Party commits a material breach of any provision of this Agreement (“Event of Default”) which remains uncured after thirty (30) days’ written notice, or in accordance with any other provisions of this Agreement expressly giving rise to a right of termination.

5.1 Consequences of termination for Event of Default: Upon termination of this Agreement resulting from an uncured Event of Default on the part of Licensor, Licensor agrees to refund to Licensee any unused Maintenance or Subscription Fees (as applicable), pro-rated on a 12-month term.

Upon termination of this Agreement resulting from an uncured Event of Default on the part of Licensee, Licensee agrees to remove and destroy all copies of the Software installed on all Devices, and remove and destroy all copies of the Documentation in the possession of Licensee.  Licensee agrees further to direct all Employees with a copy of the Software installed on an authorized personally owned Device, if any, to remove and destroy such Software and remove and destroy all copies of the Documentation in such Employees’ possession.

5.2 Consequences of natural expiration of non-Lifetime Licenses: Upon the expiration of any License, other than a Lifetime License, for a cause other than an uncured Event of Default (“natural expiration”), the Software may automatically cease to operate correctly. At the natural expiration of a Subscription License, Licensee agrees to remove and destroy all copies of the Software installed on all Devices and remove and destroy all copies of the Documentation in the possession of Licensee.  Licensee agrees further to direct all employees with a copy of the Software installed on a personally owned Device, if any, to remove and destroy such Software and remove and destroy all copies of the Documentation in such employees’ possession.

6 Public Announcements: Spirion may identify Licensee by name and/or logo to the public as a customer of Spirion, and describe in a customer case study the services and solutions delivered by Spirion to you. Spirion may also issue one or more press releases containing an announcement of the execution and delivery of this Agreement and/or the implementation of the Software by you. Nothing contained in this Section shall be construed as an obligation by Licensee to disclose any of Licensee’s proprietary or confidential information to any third party.

7 Compliance with Laws and Standards: Laws, standards, regulations, and best practices regarding privacy and data security change on a regular basis.  LICENSEE ACKNOWLEDGES THAT USING THE SOFTWARE, EVEN AS DIRECTED, DOES NOT GUARANTEE COMPLIANCE WITH ANY PARTICULAR LAW, REGULATION, STANDARD, OR BEST PRACTICE, EACH OF WHICH SPIRION EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT OF THE LAW. Seller shall not be liable under any theory for Licensee’s violation or breach of any law, regulation or standard, even if such violation or breach involved Licensee’s use of the Software.  Further, Licensee expressly acknowledges that use of the Licensed Products as directed does not transfer Licensee’s confidential or regulated information to Licensor, nor put Licensor in control or possession of the same. Licensee agrees to not share regulated or confidential information with Licensor.

Both Parties agree to comply with all federal, state and local laws and regulations applicable to this Agreement, the performance of this Agreement, or use of the Licensed Products.

8 Nature of Relationship

8.1 No Partnership: Nothing contained herein shall be deemed to create any association, partnership, joint venture or similar relationship between the Parties.

8.2 No Authority to Act on Other Party’s Behalf: Neither Party shall have the authority to bind, commit the other Party, make financial commitments on behalf of the other Party, nor shall either Party have the authority to incur any financial obligations in the other Party’s name without the express written approval of the other Party.  Neither Party shall have the authority to make public statements on behalf of the other Party, unless agreed by both Parties. Any attempt to do so shall be considered a material breach of this Agreement.  Neither Party nor any employee or subcontractor employed by either Party shall act, appear to act, or be deemed for any purpose whatsoever to be an agent, employee, servant or representative of the other Party.

9 Third Party Beneficiaries: Licensee and Licensor are the only parties to this Agreement. There are no third party beneficiaries.

10 Warranty and Disclaimer: Spirion warrants that Spirion has full legal right to enter into this agreement and that neither the services and/or products to be supplied hereunder, nor any work product to be provided hereunder, will violate or infringe the rights of any person, including any contract right or any patent, copyright, trade secret or other property right.  Spirion further warrants that the software, if installed and operated in accordance with the documentation, will perform substantially in conformance with the documentation.   TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SPIRION DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  EXCEPT AS SET FORTH ELSEWHERE IN THIS AGREEMENT, LICENSEE ASSUMES RESPONSIBILITY FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE SOFTWARE.  WITHOUT LIMITING THE FOREGOING PROVISIONS, SPIRION MAKES NO WARRANTY THAT THE SOFTWARE WILL BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THE SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS. SOME STATES AND JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO LICENSEE.

11 Limitation of Liability: UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, SHALL SPIRION OR ITS SUPPLIERS BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES.  IN NO EVENT WILL SPIRION BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE FEES ACTUALLY PAID BY LICENSEE, EVEN IF SPIRION SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR EVEN IF SUCH DAMAGES ARE THE RESULT OF SPIRION’S GOOD FAITH ACTIONS.  THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT THAT APPLICABLE LAW PROHIBITS SUCH LIMITATION. FURTHERMORE, SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.

12 Indemnification 

12.1 By Spirion: Spirion shall indemnify, defend and hold Licensee harmless from and against any claims, losses, damages, liabilities, costs and expenses (including reasonable attorneys’ and professionals’ fees and court costs) arising out of or in conjunction with any claim, suit or proceeding brought against Licensee, which alleges that the Licensed Products, as delivered and used in accordance with the terms and conditions of this Agreement and the Documentation, infringe any patent, copyright, trade secret, trademark or any other intellectual property right of any third party.   Licensee agrees to notify Spirion of any such claim promptly in writing, tender the defense to Spirion and to allow Spirion to manage, control, and/or settle the proceedings. Licensee agrees to cooperate fully with Spirion during such proceedings. Spirion shall defend and settle at its sole expense all proceedings arising out of the foregoing.

 

In the event of an infringement claim or should Spirion have reasonable concerns about infringement or potential infringement, Spirion may, at Spirion’s option, replace, in whole or in part, the Licensed Products of concern (the “Affected Licensed Products”) with a substantially compatible and functionally equivalent computer program or programs, modify the Affected Licensed Products to avoid the infringement and/or obtain such license(s) as it deems appropriate.  Licensee agrees to promptly install any such replacement version(s) used on Authorized Devices and discontinue use of the superseded version(s).  Licensee further agrees to promptly direct all employees with Software installed on a personally owned Device to promptly install any such replacement version(s) and discontinue the use of the superseded version(s) on such personally owned Devices. If Spirion reasonably determines that other alternatives are not available at a cost that Spirion deems acceptable, Spirion may, at its option, terminate the license to the Licensed Product on thirty (30) days’ notice, in which case, Spirion will refund the initial Software Fee for the Affected Licensed Products adjusted and reduced on a five (5) year straight-line depreciation basis over the period from the License Date to the termination date and refund any unused Maintenance or Subscription Fees pro-rated on a 12-month term.

13 Notice: Any notice or other communication to be given pursuant to this Agreement shall be in writing and shall be effective either when delivered personally to the Party for whom intended, or five days following mailing by first class mail postage prepaid or one business day following sending by overnight courier service, addressed to such Party at the address set forth at the outset of this Agreement, or to the address below.  Either Party may designate different contact information by written notice in accordance with this Section.

If to Spirion:

Spirion, LLC
1776 Broadway, Suite 803
New York, NY 10019
Fax: (646) 863-8302
sales [at] spirion.com

General communications between the Parties concerning the day to day performance of this Agreement may be by mail, facsimile, e-mail, Website Support ticket service, hand delivery or other appropriate means.

14 Headings and Rules of Construction: Section headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement. Whenever used herein, the singular includes the plural and the plural includes the singular. The use of any gender, tense or conjugation includes all genders, tenses and conjugations.

15 United States Government: The Licensed Products are deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.72 et. seq. and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the Software and accompanying Documentation by the United States Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.

16 Export Controls: Export Controls. Neither the Software nor the Documentation and underlying information or technology may be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria or any other country to which the United States has embargoed goods; (ii) to anyone on the United States Treasury Department’s list of Specially Designated Nations or the United States Commerce Department’s Table of Denial Orders or (iii) to any country or organization prohibited by any agency of the government of the United States.  By downloading or using the Software you are agreeing to the foregoing and you are certifying that you are not located in, under the control of, or a national or resident of any such country or on any such list. IN ADDITION, YOU SHOULD BE AWARE OF THE FOLLOWING: EXPORT OF THE SOFTWARE MAY BE SUBJECT TO COMPLIANCE WITH THE RULES AND REGULATIONS PROMULGATED FROM TIME TO TIME BY THE BUREAU OF EXPORT ADMINISTRATION, UNITED STATES DEPARTMENT OF COMMERCE, WHICH RESTRICT THE EXPORT AND RE-EXPORT OF CERTAIN PRODUCTS AND TECHNICAL DATA.  IF THE EXPORT OF THE SOFTWARE IS CONTROLLED UNDER SUCH RULES AND REGULATIONS, THEN THE SOFTWARE SHALL NOT BE EXPORTED OR RE-EXPORTED, DIRECTLY OR INDIRECTLY, (A) WITHOUT ALL EXPORT OR RE-EXPORT LICENSES AND UNITED STATES OR OTHER GOVERNMENTAL APPROVALS REQUIRED BY ANY APPLICABLE LAWS, OR (B) IN VIOLATION OF ANY APPLICABLE PROHIBITION AGAINST THE EXPORT OR RE-EXPORT OF ANY PART OF THE SOFTWARE.  SOME COUNTRIES HAVE RESTRICTIONS ON THE USE OF ENCRYPTION WITHIN THEIR BORDERS, OR THE IMPORT OR EXPORT OF ENCRYPTION EVEN IF FOR ONLY TEMPORARY PERSONAL OR BUSINESS USE. YOU ACKNOWLEDGE THAT THE IMPLEMENTATION AND ENFORCEMENT OF THESE LAWS IS NOT ALWAYS CONSISTENT AS TO SPECIFIC COUNTRIES.  ALTHOUGH THE FOLLOWING COUNTRIES ARE NOT AN EXHAUSTIVE LIST THERE MAY EXIST RESTRICTIONS ON THE EXPORTATION TO, OR IMPORTATION OF, ENCRYPTION BY: BELGIUM, CHINA (INCLUDING HONG KONG), FRANCE, INDIA, INDONESIA, ISRAEL, RUSSIA, SAUDI ARABIA, SINGAPORE, AND SOUTH KOREA. YOU ACKNOWLEDGE IT IS YOUR ULTIMATE RESPONSIBILITY TO COMPLY WITH ANY AND ALL GOVERNMENT EXPORT AND OTHER APPLICABLE LAWS AND THAT SPIRION HAS NO FURTHER RESPONSIBILITY AFTER THE INITIAL SALE TO YOU WITHIN THE ORIGINAL COUNTRY OF SALE.

17 High-Risk Activities: The Software uses search algorithms to find data but is not guaranteed to find every occurrence of data searched.  The Software is not fault-tolerant and is not designed or intended for use in hazardous environments requiring fail-safe performance, including without limitation, in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, direct life-support machines, machinery which might cause harm to a person or any other application in which the failure of the Software could lead directly to death, personal injury, or severe physical or property damage (collectively, “High-Risk Activities”). SPIRION EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH-RISK ACTIVITIES.

18 Confidentiality: Confidential information (“Confidential Information”) means information marked or otherwise identified in writing by a Party as proprietary or confidential and/or that a reasonable person would understand to be proprietary or confidential. It includes non-public information regarding either Party’s products, features, marketing and promotions, information on employees, customers, alumni, students, systems and business practices.  Confidential Information does not include (i) information which the recipient developed independently; (ii) information which the recipient knew before receiving it under the relevant agreement; or (iii) information which is or subsequently becomes publicly available or is received from another source, in either case other than by a breach of an obligation of confidentiality.  

Each Party agrees to hold the other Party’s Confidential Information in confidence. Each Party will exercise its best efforts to safeguard each other’s Confidential Information.  Such precautions will be at least as great as those that either Party takes to protect its own Confidential Information, but in no event less than a reasonable degree of protection.  Each Party will disclose the other Party’s Confidential Information to its employees consultants or agents only on a need-to-know basis and subject to the confidentiality obligations imposed here.  When Confidential Information is no longer necessary to perform any obligation under the Agreement, it will be, at the option of the disclosing Party, returned to its owner or destroyed.

Neither Party will use the other’s Confidential Information except in furtherance of this business relationship or disclose the other’s Confidential Information except (i) to obtain advice from legal or financial consultants, or (ii) if compelled by law, in which case the disclosing Party will use its best efforts to give the other Party notice of the requirement so that the disclosure can be contested or limited. Neither Party may disclose the specific terms of this Agreement (including but not limited to purchase price and discounts) without obtaining the prior written consent from the other Party.

The provisions of this Section shall survive termination of this Agreement.

19 Suggestions and Feedback: Either Party may from time to time provide suggestions, comments or other feedback to the other Party with respect to Licensed Products, Confidential Information, or any other subject (“Feedback”).  Both Parties agree that all Feedback is and shall be entirely voluntary and shall not, absent separate agreement, create any confidentiality obligation for the receiving Party.  Feedback may or may not be clearly designated as such and, except as otherwise provided herein, each Party shall be free to disclose, use, or commercially exploit such Feedback as it sees fit, entirely without obligation of any kind to the other Party. Licensee obtains no intellectual property rights, title, or interest in the Licensed Products, Upgrades or Updates, even if such intellectual property incorporates Feedback from Licensee. The foregoing shall not, however, affect either Party’s obligations hereunder with respect to Confidential Information of the other Party.

20 Jurisdiction and Governing Law: This Agreement shall be exclusively construed and interpreted in accordance with the laws of the State of New York, excluding conflict of laws provisions.  No rules, regulations, laws or statutes of any kind or nature of any other city, county, state or other jurisdiction shall be given any force or effect.  The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal and the exclusive jurisdiction of the courts (both federal and state) located in New York County in the State of New York for any action or proceeding initiated by you or any other person or entity.  This includes all actions and proceedings of every kind and nature, even if they did not arise out of this Agreement.  Service of a Summons and Complaint upon you by U.S. Mail, Federal Express at the address stated above or by e-mail shall be the equivalent as if you were personally served with said documents in the State of New York.

21 Dispute Resolution: YOU HEREBY AGREE TO WAIVE ALL RIGHTS OF EVERY KIND AND NATURE FOR TRIAL BY JURY FOR ALL CLAIMS, COUNTERCLAIMS, CROSS-CLAIMS AND FOR ALL OTHER ACTIONS, CASES AND PROCEEDINGS.  IT IS AGREED AND UNDERSTOOD THAT UNDER NO CIRCUMSTANCES WILL ANY CASE BE TRIED BEFORE A JURY FOR ANY REASON WHATSOEVER.

You agree that if you bring any action or proceeding against Spirion you shall do so only in the United States District Court for the Southern District of New York, unless said court does not have subject matter jurisdiction, in which case you shall bring any such action or proceeding only in the Supreme Court of the State of New York, County of New York.  The provisions of this paragraph shall apply to all matters and controversies of every type and nature, including, but not limited to, anything that occurred or pertains to anything prior to the execution of the Agreement or any other agreement, during the term of any agreement, after the term of any agreement and for all matters whether or not related to any agreement between the Parties.  If Spirion initiates litigation or incurs any legal fees as a result of any action that you take or fail to take or if you breach any term, condition or covenant of this Agreement or any other agreement, you shall be responsible for all of Spirion’s costs, expenses and legal fees of every kind and nature.  You agree not to initiate, agree, be part of or in any way participate in any class actions against Spirion, to the full extent permissible by law.  If you are made a part of a class action you agree to immediately opt out and/or withdraw from being part of the class action.  If you do not take corrective action, you agree that you will pay all of your or any other person or entity’s costs, expenses and attorneys’ fees to do so.  You agree not to initiate, agree, be part of or in any way participate in any with any other person, business or entity against Spirion as a plaintiff or in any other capacity in any lawsuit, complaint to any agency or in any other proceeding.  If you violate the terms of the previous sentence you agree to immediately take corrective action to come into compliance with those terms.  If you do not take immediately corrective action, you agree that you will pay all of you or any other person or entity’s costs, expenses and attorneys’ fees to do so.  There may be state laws which conflict with these provisions, in which case such state law shall prevail.

22 Waiver: No indulgence or forbearance by a Party shall be deemed to constitute a waiver of its rights to insist on performance in full and in a timely manner of all the terms and conditions hereof and any such waiver, in order to be binding upon a Party, must be express and in writing and signed by an authorized representative of such Party and then such waiver shall be effective only in the specific instance and for the specific purpose for which it is given.  No waiver of any term or condition of this Agreement by a Party shall be deemed to be a waiver by such Party of its rights to require full and timely compliance with the same term or condition thereafter, or with any other term or condition of this Agreement.

23 Assignment: Licensee agrees not to assign, or otherwise transfer this Agreement or such Party’s rights under it, or delegate its obligations, without Licensor’s prior written consent, and any attempt to do so is void. Notwithstanding, Licensee may assign this Agreement without prior written consent only to an entity which acquires all or substantially all of its assets, only if the assignment would not otherwise violate this agreement, including but not limited to the Sameness Rule. Any other attempt to assign is void, without written consent from Licensor. Licensor may assign this agreement without restriction, limitation, or notice to Licensee.

24 Force Majeure: Neither Party shall be responsible for any delay or failure of performance under this Agreement caused by events or circumstances beyond such Party’s control, which may not be overcome by due diligence.

25 Severability: Notwithstanding anything to the contrary herein, all provisions hereof are hereby limited to the extent mandated by any applicable law, regulation or decision.  If any one or more paragraphs, clauses or other portions hereof should ever be determined to be illegal, invalid or otherwise unenforceable by a court of competent jurisdiction, or to be illegal, invalid or invalidated or unenforceable by reason of any existing or later enacted law, regulation or statute, then to the extent it is within the jurisdiction illegal, invalid or unenforceable, it shall be limited or construed so as to be valid and enforceable or severed and deleted here from.  The remaining provisions hereof shall survive, remain in full force and effect, continue to be binding and shall not be affected except insofar as may be necessary to make sense hereof, and shall be interpreted to give effect to the intention of the Parties insofar as that is possible. The Parties confirm that it is their wish that this Agreement has been written in the English language only.

26 Survival: Those provisions of this Agreement which by their nature and context are intended to survive the termination or expiration of this Agreement shall so survive.

27 Counterparts: This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same agreement.

28 Remedies: The rights and remedies of Spirion provided in this Agreement shall be in addition to (and not in substitution for) any rights and remedies to which Spirion shall be entitled at law or equity.

29 Amendments or Modifications: This Agreement may not be modified except by a written addendum executed by duly authorized representatives of the Parties. The terms and conditions of this Agreement (including Addenda) shall supersede all conflicting pre-printed terms and conditions contained in any purchase order or other business form submitted hereafter by either party to the other.

30 Entire Agreement: This Agreement including all Addenda sets forth the entire agreement between the Parties concerning the subject matter hereof and supersedes all prior agreements, negotiations, discussions, arrangements and communications, whether oral or written, with respect to the subject matter hereof.

APPENDIX A: EDITION-SPECIFIC DEFAULT TERMS

Absent another Appendix specifying the terms of a purchase, the licensing terms and conditions in this Appendix shall apply only to the Software Editions listed below, in addition to the other terms of this Agreement.

Software Edition:  Sensitive Data Manager

– Licensed By:  Per-Employee, 1 Employee

– License Type:  Lifetime

– License Period:  1 year Maintenance.

Software Edition:  Spirion

– Licensed By:  Per-Employee, 1 Employee

– License Type:  Lifetime

– License Period:  1 year Maintenance.

Software Edition:  Identity Finder Enterprise DLP

– Licensed By:  Per-Employee, 1 Employee

– License Type:  Lifetime

– License Period:  1 year Maintenance.

Software Edition:  Data Discover

– Licensed By:  Per-Device, 1 Device.

– License Type:  Subscription License

– License Period:  1 year.

31 2 Default Enterprise Edition Terms

Absent another Appendix specifying the terms of a purchase, the following default terms shall apply:

31.1 2.1 General Terms and Limitations

For Data Discover, the License shall be issued on a Per-Device basis only, and shall extend only to the one (1) Device on which the Software was first installed. Payment of the one-year Subscription Fee is due prior to activation of the Software.

For Spirion, Sensitive Data Manager and Identity Finder Enterprise DLP, the License shall be issued on a Per-Employee basis only, and shall extend only to the one (1) Employee on whose Device the Software was first installed. Payment of the Software Fee is due prior to activation of the Software.

For each of the Editions licensed under this subsection, Licensor shall not issue an invoice.  The License does not entitle Licensee to notice or communication from Spirion on any matter, including but not limited to communication regarding Updates, Upgrades, invoices, validation, or other subject, even if otherwise required in this Agreement.

31.2 2.2 Limited Support

For Data Discover, Support is limited to email support and access to the online knowledge base at http://support.spirion.com.