READ THIS LICENSE AGREEMENT BEFORE INSTALLING THESE PROGRAMS. THIS LICENSE AGREEMENT IS A LEGAL CONTRACT BETWEEN YOU AND TUXCARE (“TUXCARE”) GOVERNING YOUR USE OF ANY PROGRAMS DOWNLOADED, INSTALLED OR USED BY YOU (THE “PROGRAMS”). TUXCARE IS UNWILLING TO LICENSE THE PROGRAMS EXCEPT ON THE TERMS CONTAINED IN THIS LICENSE AGREEMENT. THE ACT OF DOWNLOADING, INSTALLING OR USING THE PROGRAMS SHALL CONSTITUTE AN ACCEPTANCE BY YOU OF THE TERMS OF THIS LICENSE AGREEMENT. IF YOU DO NOT WISH TO AGREE TO THE TERMS OF THIS LICENSE AGREEMENT, PROMPTLY EXIT THE INSTALLATION NOW AND REMOVE IT FROM YOUR SYSTEM.
THIS LICENSE AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF TUXCARE’S OBLIGATIONS AND RESPONSIBILITIES TO YOU AS LICENSEE, AND SUPERSEDES ANY OTHER PROPOSAL, REPRESENTATION, OR OTHER COMMUNICATION BY OR ON BEHALF OF TUXCARE RELATING TO THE SUBJECT.
- GRANT OF LICENSE
TuxCare hereby grants to you, and you accept, a limited, nonexclusive license to use the Programs in machine-readable, object code form only, and the user manuals accompanying the Programs (the “Documentation”), only as authorized in this Agreement. For purposes of this Agreement, the “Programs” include any updates, enhancements, modifications, revisions, or additions to the Programs made by TuxCare and made available to end-users. Notwithstanding the foregoing, TuxCare shall be under no obligation to provide any updates, enhancements, modifications, revisions, or additions to the Programs. You may use one copy of the Programs only on systems, including servers, work stations, virtual machines, blades, nodes or disk partitions, for which you have purchased Subscription Services from TuxCare or its resellers. For purposes of this Agreement, “use” of the Programs means loading the Programs into the temporary or permanent memory of a computer. Installation of the Programs on a network server solely for distribution to other computers is not “use” of the Programs, and is permitted, as long as you have purchased Subscription Services for the systems being accessed by the Programs. Your installation or use of the Programs grants TuxCare limited access to your system information for the sole purpose of Cybersecurity analysis and reporting. Such access and information collected includes reviewing installed packages and applications, the names, sizes, and attributes of files, the server or system uptime, load, and running processes.
You agree that on TuxCare’s request you will certify in writing your compliance with the terms of this agreement, including you use of the Programs only on or in connection with the number of systems licensed. You further agree that TuxCare may during normal business hours and with reasonable prior notice, request and gain access to your premises for the limited purpose of conducting an inspection to determine and verify your compliance with this Agreement. The inspection will be conducted no more than once per year and in a manner not intended to disrupt your business and will be restricted in scope and duration to that reasonably necessary to achieve its purpose.
- PROTECTION OF PROPRIETARY RIGHTS. CONFIDENTIALITY
You acknowledge that the Programs and each of their components are owned by TuxCare and others, and are protected under copyright law and other laws as applicable. Title to the Programs, or to any copy, modification, or merged portion thereof shall remain with their respective owners, subject to the applicable license. You may commercially redistribute the Programs only if, you have entered into a separate agreement with TuxCare authorizing such commercial redistribution or TuxCare has otherwise granted you permission, in writing. You agree not to remove any confidential or proprietary legends from the Programs. You acknowledge that, in the event of your breach of any of the provisions of this Section 2, TuxCare will not have an adequate remedy in money or damages. TuxCare shall therefore be entitled to obtain an injunction against such breach from any court of competent jurisdiction immediately upon request. TuxCare’s right to obtain injunctive relief shall not limit its right to seek further remedies. This Section 2 shall survive termination for any reason. Your obligations hereunder shall remain in effect for as long as you continue to possess or use the Programs, or any proprietary interests therein. You further agree not to, and you will not permit others to, (a) license, sell, rent, lease, assign, distribute, transmit, host, outsource, disclose or otherwise commercially exploit the Programs, (b) copy or use the Programs for any purpose other than as permitted in this License Agreement, (c) remove or alter any trademark, logo, copyright or, patent marking(s), other proprietary notices, legends, symbols or labels in the Programs, or (d) modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Programs, including, but not limited to, its license keys, to the fullest extent of the law. You further agree not to, and you will not permit others to, (a) license, sell, rent, lease, assign, distribute, transmit, host, outsource, disclose or otherwise commercially exploit the Programs, (b) copy or use the Programs for any purpose other than as permitted in this License Agreement, (c) remove or alter any trademark, logo, copyright or, patent marking(s), other proprietary notices, legends, symbols or labels in the Programs, or (d) modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Programs, including, but not limited to, its license keys, to the fullest extent of the law. “Confidential Information” shall mean the Programs, any intellectual property of TuxCare or any other information that characterizes as confidential at the time of its disclosure either in writing or orally, except for information which you can demonstrate: (a) is previously rightfully known to you without restriction on disclosure; or (b) is or becomes, from no act or failure to act on your part, generally known in the relevant industry or public domain. You shall use your best efforts to preserve and protect the confidentiality of the Confidential Information at all times, both during the term hereof and for a period of at least 3 years after termination of this License Agreement, provided, however, that any source code or trade secrets you receive shall be held in confidence in perpetuity. You shall not disclose, disseminate or otherwise publish or communicate Confidential Information to any person, firm, corporation or other third party without the prior written consent of TuxCare. You shall not use any Confidential Information other than in the as expressly required to use the Programs in accordance with its standard use and in accordance with all Product Information. You are required to notify TuxCare in writing immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this License Agreement, and to cooperate with TuxCare in every reasonable way to regain possession of Confidential Information and prevent any further unauthorized use. If you are legally compelled to disclose any of the Confidential Information, then, prior to such disclosure, you will (i) immediately notify TuxCare prior to such disclosure to allow TuxCare an opportunity to contest the disclosure, (ii) assert the privileged and confidential nature of the Confidential Information, and (iii) cooperate fully with TuxCare in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. In the event such protection is not obtained, you shall disclose the Confidential Information only to the extent necessary to comply with the applicable legal requirements.
- LIMITED WARRANTY; EXCLUSIVE REMEDIES.
Limited Warranty: TuxCare warrants that (i) the media on which the Programs are furnished will be free from defects in materials and manufacture under normal use of a period of 30 days from the date of delivery to you; and (ii) TuxCare is the owner or authorized licensee of the Programs, or has the rights to license the Programs to you. No person other than TuxCare, in writing, is authorized to make any representation or warranty to you regarding the Programs. Exclusive Remedy: In the event of a breach of the limited warranty above, your exclusive remedy relative to the Programs shall be for TuxCare, at TuxCare’s option, to either: (i) replace the Programs that does not meet the limited warranty; or (ii) refund to you the Programs license fees (and no other fees) paid by you, during the 12 month period immediately preceding the breach of the limited warranty, for the Programs which fails to comply with the limited warranties.
- DISCLAIMER; LIMITATION ON LIABILITY
Disclaimer: THE LIMITED WARRANTY ABOVE IS THE SOLE WARRANTY MADE BY TUXCARE. TUXCARE MAKES NO OTHER WARRANTY OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED. ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARE EXPRESSLY DISCLAIMED AND EXCLUDED BY TUXCARE.
Limitation on Consequential Damages: IN NO EVENT SHALL TUXCARE BE LIABLE TO YOU, AS LICENSEE, OR ANY OTHER PERSON FOR ANY INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING DAMAGES FOR BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR SIMILAR LOSSES) EVEN IF TUXCARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TUXCARE SHALL HAVE NO LIABILITY OF ANY KIND RELATED TO YOUR DATA, INCLUDING, BUT NOT LIMITED TO, THE LOSS OR DAMAGE THEREOF.
Limitation on Liability:THE CUMULATIVE LIABILITY OF TUXCARE TO YOU FOR ALL CLAIMS RELATED TO THE PROGRAMS AND THIS LICENSE AGREEMENT, INCLUDING ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL LICENSE FEES (AND NO OTHER FEES) PAID TO TUXCARE FOR THE PROGRAMS DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INITIAL EVENT GIVING RISE TO THE CLAIM. All limitations on liability, damages and claims are intended to apply without regard to whether other provisions of this License Agreement have been breached or have proven ineffective.
The license granted herein is effective until terminated. The license will automatically terminate, without notice, if you fail to comply with any provision of this License Agreement. Upon termination of this License Agreement, all rights granted to you pursuant to this License Agreement will terminate and revert to TuxCare. This license may be terminated at any time, for any reason, by TuxCare. TuxCare’s maximum liability for any such termination is to refund to you any prepaid fees.
- PERSONAL INFORMATION CONTROL
You agree to comply with all applicable laws, regulations, rulings and orders of the EU, US and other countries (including but not limited to the EU’s GDPR) in which you have operations relating to the protection, use, and distribution of personal information of your users or visitors on any devices which have the Program installed or stored. Further, you shall indemnify TuxCare for any and all claims resulting from your violation of any such laws, regulations, rulings, or orders.
- EXPORT CONTROL
You agree to comply with all applicable laws, regulations, rulings and executive orders of the United States relating to the exportation or importation of any copies of the Programs (including but not limited to the export and destination control regulations of the Commerce and Treasury Department) and with all applicable foreign laws relating to the use, importation, licensing or distribution of copies of the Programs. You acknowledge that TuxCare is subject to economic sanctions laws (“Economic Sanctions Laws”), including but not limited to those enforced by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), the European Union, and the United Kingdom. Accordingly, You shall comply with all Economic Sanctions Laws, including, but not limited to, those of the United States, the European Union, and the United Kingdom. You shall not provide access to the TuxCare Products to any individuals identified on OFAC’s list of Specially Designated Nationals (“SDN List”), the UK’s HM Treasury’s Consolidated List of Sanctions Targets, or the EU’s Consolidated List of Persons, Groups, and Entities Subject to EU Financial Sanctions (collectively “Sanctioned Parties”). You shall not take any action which would place TuxCare in a position of non-compliance with any such Economic Sanctions Laws. Furthermore, You represent and warrants that (i) you have not in the past been, and will not be in the future, be connected with any Sanctioned Parties, (ii) shall provide such information regarding any individual or entity which you do business within any location covered by Economic Sanction Laws upon request of TuxCare, and (iii) shall promptly advise TuxCare of any activities which increases the risk of your’s non-compliance with this Section 7 or TuxCare’ compliance with Economic Sanctions Laws. You agree to indemnify and hold TuxCare harmless from any loss, damages, liability or expenses incurred by TuxCare as a result of your failure to comply with any export regulations or restrictions or otherwise fails to comply with this Section 7.
This License Agreement shall be governed by and construed in accordance with the laws of the State of Delaware and the United States, without regard to any conflict of laws provisions. The rights and obligations of the parties to this License Agreement shall not be governed by the United Nations Convention on the International Sale of Goods.No modification of this License Agreement shall be binding unless it is in writing and is signed by an authorized representative of the party against whom enforcement of the modification is sought; or in the event of TuxCare updating this License Agreement; you agreeing to the modified terms through use of a click through process. Any notices required or permitted under this License Agreement shall be in writing and delivered in person or sent by registered or certified mail, return receipt requested, with proper postage affixed. In the event that any term of this License Agreement is or becomes or is declared to be invalid or void by any court or tribunal of competent jurisdiction, such term shall be null and void and shall be deemed severed from this License Agreement, and all the remaining terms of this License Agreement shall remain in full force and effect.