This Aura Asset Intelligence Sandbox SOFTWARE LICENCE & EVALUATION AGREEMENT (the “Agreement”) is made between Discovered Intelligence Inc., a corporation duly incorporated under the laws of Canada, and having its registered office at 2421 Huron Park Place, Mississauga, Ontario, Canada, L5C 4J9 (“Company”) and the company or entity you represent and on whose behalf you have entered into this Agreement (“Customer”) and comprises the following terms and conditions.
This Agreement takes effect and will become binding when you, on behalf of Customer, log into the Aura Asset Intelligence Hosted Environment (“Effective Date”). You represent that you have the legal authority to bind Customer.
Company has developed the computer software described in Schedule “A” hereto (the “Software”), related user and administration tools and configuration data (the “Tools”), and the related user and administration documentation (the “Documentation”) (collectively, the Software, the Tools and the Documentation constitute, the “Work”).
Customer wishes to license the use of the Work for the sole purpose of evaluation, and Company has agreed to license such use, pursuant to the terms of this Agreement.
The Parties hereto agree and understand as follows:
1. Definitions. In this Agreement, the following terms shall have the meanings set out below:
1.1. “Affiliate” means, with respect to any Person, any other Person who directly or indirectly controls, is controlled by, or is under direct or indirect common control with, such Person, and includes any Person in like relation to an Affiliate. A Person shall be deemed to control a Person if such Person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise; and the term “controlled” and “controlling” shall have a similar meaning.
1.2. “Agreement” means this Software Licence And Evaluation Agreement including the recitals hereto and all schedules attached hereto, as the same may be amended from time to time in accordance with the provisions hereof.
1.3. “Authorized User” means an employee or contractor of Customer authorized by Customer to use the Software under this Agreement.
1.4. “Business Day” means any day, 9:00 a.m. to 5:00 p.m., which is not a Saturday, Sunday, statutory or civic holiday in Toronto, Ontario, Canada.
1.5. “Confidential Information” means any and all business, technical and financial data and information of either Party, including the Work, proprietary and trade secrets, technology and accounting records to which access is obtained hereunder by the other Party, and any materials provided by Company to Customer, provided, however, that Confidential Information shall not include any data or information which:
(i) was previously known to the receiving party if the receiving party can prove such prior knowledge and the receiving party did not learn such information from a person whom the receiving party knew was under a duty to the disclosing party not to disclose the information,
(ii) is or becomes publicly available without breach of this Agreement,
(iii) the receiving party receives from an independent third party who is not under an obligation not to disclose it,
(iv) is independently developed by the receiving party as evidenced by documentation dated prior to the time of disclosure by the disclosing party, or
(v) is required to be disclosed pursuant to the order of a governmental agency, legislative body, or a court of competent jurisdiction, provided reasonable prior notice of the intended disclosure is provided to the other party.
1.6. “Documentation” means the Software user manuals and supporting documentation, including product description, user references, operation instructions, and release notes, whether in electronic format or printed, as may be provided to Customer together with the Software and the Tools and any upgrades, updates, fixes or Modifications from Company under this Agreement from time to time.
1.7. “Fixes” means corrections or changes to the Software to correct errors or otherwise make the Software materially conform to the applicable Documentation.
1.8. “including” means “including without limitation” and the term “including” shall not be construed to limit any general statement which it follows to the specific or similar items or matters immediately following it; and “includes” means “includes without limitation”.
1.9. “Intellectual Property Rights” includes all patents, inventions, trade-marks, service marks, registered designs, integrated circuit, topographies, including applications for any of the foregoing, as well as copyrights, design rights, know-how, confidential information, trade secrets, and any other similar rights in Canada and in any other country or jurisdiction.
1.10. “Customer Data” means non-public data of Customer, collected or received by Company under this Agreement for the purpose of performance of the obligations under this Agreement, utilizing such non-public data.
1.11. “Losses” means losses, damages, liabilities, deficiencies, judgments, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable legal fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
1.12. “Modifications” means any enhancements, changes, corrections, improvements, translations, revisions, developments, upgrades or updates thereto; and “Modify” shall mean the creation of any of the foregoing.
1.13. “Object Code” means the machine readable executable form of a computer software program.
1.14. “Parties” means each of Company and Customer and “Party” means either one of them.
1.15. “Person” includes an individual, corporation, partnership, joint venture, trust, unincorporated organization, any government agency, the Crown or any agency or instrumentality thereof or any other judicial entity recognized by law.
1.16. “Section” means and refers to the specified section of this Agreement.
1.17. “Software” means the specific computer software, whether as Object Code or as Source Code, or both, as specified in Schedule A, and any upgrades, updates, fixes or Modifications.
1.18. “Source Code” means the human readable form of a computer software program, whether or not directly executable by a computer processor.
1.19. “Update” means a revision to the Software that improves the functionality of the Software, and may contain new features or enhancements, which is not an Upgrade. Updates are issued as build releases.
1.20. “Upgrade” means a subsequent version of the Software that Company designates as a new release and makes generally commercially available. Upgrades are issued as major or minor releases.
1.21. “Use” means to install, execute, run, display, store, copy, and host the Work.
1.22. “Work” means the Software, the Tools and the Documentation.
2. Grant of Licence.
2.1. Rights Granted. Subject to the terms and conditions of this Agreement, Company hereby grants and Customer hereby accepts, a personal, non-transferable, non-exclusive licence (the “Licence”) to Use the Software, the Tools and the Documentation strictly and solely for the purpose of evaluating the Software and for no other purpose whatsoever, under the price, terms, and conditions specified in this Agreement and in Schedule “A”, only as authorized hereunder, during the Evaluation Period.
2.2. Rights Reserved. Any rights not expressly granted herein shall be reserved for Company. Title to the Software and all copies thereof which Customer is permitted to make hereunder shall at all times remain with Company and all Intellectual Property Rights of whatever nature with respect thereto shall be and remain the exclusive property of Company.
3. Use and Restrictions. Except as otherwise provided in Section 2 above, Customer shall not:
(1) copy the Software, the Tools or the Documentation for whatever purpose;
(2) market, distribute, export, translate, transmit, merge, Modify, transfer, adapt, loan, rent, lease, assign, share, sublicense or make available to any other Person, the Work, in any way, in whole or in part;
(3) provide the benefit of the use of the Work, in whole or in part, to any Person and in any manner, including but not limited to via a service bureau, time sharing or, application service provider services;
(4) disclose, sublicense, lease, rent, or transfer the Software, in whole or in part, to any other Person;
(5) remove, modify, cover or obscure any copyright, trade-mark, licence notices, any names or other identifying marks, or other proprietary notices or legends appearing on or in the Work, any authorized copies of the Work, or any portion thereof; and
(6) otherwise use the Work except as authorized herein.
Customer agrees to take all reasonable precautions to prevent third parties from using the Work in any way that would constitute a breach of this Agreement including, without limitation, such precautions as Customer would otherwise take to protect its own proprietary software or hardware or information.
4. Delivery of Work. All Software, Tools, and Documentation will be delivered electronically to Customer or provided to Customer over the Internet at a location specified by Company.
5. Technical Support. Company agrees to provide Customer and its Authorized Users with technical support as specified in Company’s Support Terms, attached hereto as Schedule “B” and incorporated by reference herein. The support will be provided during the Evaluation Period and will terminate upon termination thereof.
6. Grant Access. To receive Remote Support and for Company to perform installation of the Work, Customer acknowledges and agrees that it may be requested to provide access to Customer’s system or computer. Customer may grant or decline to grant such access or determine the level of access granted to Company, in order to receive the Remote Support. Customer acknowledges and agrees that such access will be granted at Customer’s own risk.
7. Access to Customer Data. Not applicable.
8. Loss of Customer Data. Customer acknowledges and agrees that Company shall have no liability for any loss of, or damage to, the Customer Data. Customer, and not Company, shall be solely responsible for the accuracy, quality and security of Customer Data and for maintaining any required backup of all such data. Customer shall be responsible for ensuring the security and integrity of Customer’s (and its service provider’s) data, computers, networks and systems (including with respect to protecting against viruses and malware).
9. Protective measures. Not applicable.
10. Delivery of Support. To receive technical support, Customer acknowledges that it may be requested to attend online meetings and conduct screensharing sessions as required.
11. Updates and Upgrades. During the Evaluation Period, Company may make available, but will have no obligation of making available, Updates and Upgrades of the Software to Customer from time to time, when Company deems such Updates and Upgrades necessary or desirable.
12. Fees and Payment Terms. Not applicable
13. Proprietary Rights. Customer acknowledges and agrees that at all times the Work is proprietary to Company and that Customer does not own any rights, including any Intellectual Property Rights, in the Work (including without limitation any Modifications thereto and all related written materials, logos, trademarks, trade names, copyright, patents, trade secret and moral rights, registered or unregistered). No title to the Intellectual Property Rights in the Work is transferred from Company to Customer by this Agreement. Customer further acknowledges that the Work contains trade secrets of Company and that the Work is protected by Canadian and international copyright and other intellectual property laws and treaties.
14. Remedy in Event of Breach of Licence. Customer acknowledges and agrees that the Software is of an extraordinary and unique character and that the injury which would be suffered by Company in the event of a breach by Customer of any of its obligations hereunder would be irreparable and otherwise of a character which could not be fully compensated for solely by recovery of monetary damages. Accordingly, Customer agrees that, without in any way limiting the other rights or remedies of Company, Company shall be entitled to apply to obtain equitable relief, restraining order, injunction, decree, or remedy, as may be appropriate to restrain any breach or threatened breach of this Licence.
15. U.S. Government restricted rights. If the Software is acquired by or for the U.S. Government, then it is provided by Company with Restricted Rights. Use, duplication, or disclosure by the U.S. Government is subject to the restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 and 52.227.7202 or subparagraphs (c)(1) and (2) of the Commercial Computer Software – Restricted Rights at 48 CFR 52.227-19, and/or similar successor clauses in the FAR or the DOD or NASA FAR Supplement, as applicable and as amended, unpublished rights reserved.
16. Export Control. Customer acknowledges that the Software may not be exported except as authorized by the laws of the jurisdiction in which the Software was obtained and further agrees that it will not export or move any Software to another country without the prior written consent of Company.
17. Confidentiality. The party (“Receiving Party”) who receives Confidential Information from the other party (“Disclosing Party”) shall use reasonable efforts (and, in any event, that are no less than the efforts used to protect its own Confidential Information of a similar nature) to protect from disclosure the Confidential Information of Disclosing Party. Receiving Party shall divulge such Confidential Information only to its employees, agents, contractors or subcontractors who require access to it for the purposes of this Agreement or as otherwise provided in this Agreement and shall ensure that its employees, agents, contractors and subcontractors observe these conditions. Receiving Party agrees to indemnify Disclosing Party for all Losses incurred by Disclosing Party as a result of a failure of Receiving Party to comply with its obligations under this Section 17 provided that Disclosing Party has given prompt notice of any such breach.
18. Injunctive Relief. Without limiting any other rights or remedies available to Company in law or in equity, Customer acknowledges and agrees with Company that the breach by it of any of the provisions of this Agreement, including the confidentiality obligations under Section 17, would cause serious and irreparable harm to Company which could not adequately be compensated for in damages and, in the event of a breach by Customer of any of such provisions, Customer hereby consents to an injunction being sought against it restraining it from any further breach of such provision of the Agreement.
19. Company’s Limited Representations and Warranties.
19.1. Company warrants that it has the authority to enter into this Agreement and has the right to grant all of the licence rights herein.
19.2. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SOFTWARE AND THE TOOLS ARE PROVIDED “AS IS” AND “WHERE IS” AND THE WARRANTIES SET FORTH IN THIS SECTION 19 ARE IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, OR FROM A COURSE OF DEALING OR USAGE OF TRADE, INCLUDING WARRANTIES AS TO MERCHANTABILITY, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. COMPANY DOES NOT WARRANT THAT THE FUNCTIONALITY OF THE SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS, NOR THAT THE SOFTWARE WILL RUN UNINTERRUPTED OR ERROR FREE. COMPANY IS NOT RESPONSIBLE FOR THE RESULTS OF CUSTOMER’S USE OF THE SOFTWARE OR FOR ANY ACTION TAKEN BY CUSTOMER OR THIRD PARTIES ON THE BASIS THEREOF
20. Limitation of Liability. The Parties agree that the limitation of liability provisions of this Agreement reflect an informed voluntary allocation of the risks (known and unknown) that may exist in connection with the licensing of the Software and the Tools hereunder by Company, and that such voluntary risk allocation represents a material part of the Agreement reached between Company and Customer. Should Company be in breach of any obligation, Customer agrees that Customer’s remedies will be limited to those set forth in this Agreement.
(1) IN NO EVENT SHALL EITHER PARTY, THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS OR AFFILIATES, BE LIABLE FOR ANY CLAIM FOR: (A) ANY AMOUNTS REPRESENTING LOSS OF PROFITS OR REVENUES HOWSOEVER ARISING; (B) SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE OR DATA) EVEN IF ADVISED OF THE POSSIBILITY OF SAME; (C) DAMAGES OR EXPENSES ARISING FROM CHANGES IN OPERATING CHARACTERISTICS OF HARDWARE OR SOFTWARE WHICH ARE MADE AFTER THE USE OR MODIFICATION OF THE SOFTWARE; (D) DAMAGES OR EXPENSES ARISING FROM CORRUPTION OF ANY DATA OF CUSTOMER WHEN THE USE OF THE SOFTWARE IS NOT WITHIN THE CONTEMPLATION OF THIS AGREEMENT; OR (E) DAMAGES ARISING FROM THE USE OF THE SOFTWARE WITH OTHER SOFTWARE. BOTH PARTIES SHALL INDEMNIFY, DEFEND, AND HOLD HARMLESS OTHER PARTY IN RESPECT OF ALL CLAIMS OR DAMAGES EXCLUDED HEREUNDER.
(2) THE MAXIMUM AGGREGATE LIABILITY OF COMPANY, ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, DISTRIBUTORS, AND RE-SELLERS, UNDER THIS LICENCE FOR ALL LOSSES, DAMAGES, EXPENSES, OR INJURIES, WHETHER UNDER CONTRACT, TORT (INCLUDING WITHOUT LIMITATION, NEGLIGENCE, AND STRICT LIABILITY), BY STATUTE, OTHER LEGAL THEORY, OR OTHERWISE, HOWSOEVER ARISING, AND CUSTOMER’S SOLE REMEDY, SHALL BE LIMITED TO AN AWARD FOR DIRECT, PROVABLE DAMAGES NOT TO EXCEED THE AMOUNT OF THE FEES PAID BY CUSTOMER HEREUNDER, REGARDLESS OF A BREACH OF ANY FUNDAMENTAL TERM OR A FINDING THAT THE REMEDIES PROVIDED HEREIN FAILED WITH RESPECT TO THEIR ESSENTIAL PURPOSE. NO ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND THIS LICENCE MAY BE COMMENCED BY CUSTOMER MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION ARISES.
(3) CUSTOMER AGREES TO INDEMNIFY, DEFEND, AND HOLD HARMLESS COMPANY, ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, DISTRIBUTORS, AND RE-SELLERS, FROM AND AGAINST ANY AND ALL LOSSES, COSTS, EXPENSES, CLAIMS, OR DAMAGES ARISING OUT OF ANY CLAIM, SUIT, ACTION, OR JUDGMENT BROUGHT AGAINST COMPANY BY A THIRD PARTY ARISING OUT OF OR RELATED TO THE USE BY CUSTOMER OF THE SOFTWARE IN A MANNER NOT AUTHORIZED BY THIS AGREEMENT OR IN ANY MANNER FOR WHICH THE SOFTWARE WAS NOT DESIGNED OR WHERE THE SOFTWARE HAS BEEN MODIFIED EITHER BY CUSTOMER OR FOR CUSTOMER BY A THIRD PARTY NOT AUTHORIZED BY COMPANY.
21. Term and Termination.
(1) The term of this Agreement shall commence from the date of hosted environment access provisioning, for a period (the “Evaluation Period”) as agreed upon with the Customer.
(2) Company shall have the right on notice to Customer to terminate this Agreement by giving Customer a ten (10) days written notice.
(3) Notwithstanding Section 2 and this Section 21, Company may forthwith terminate this Agreement and the Licence if Customer is in breach of any of Sections 2, 3, 12, 17 and 25 of this Agreement. Company shall provide written notice of such termination as soon as practicable but written notice shall not be a necessary prerequisite to such termination.
(4) Upon the termination of this Agreement, the Licence is terminated. All of Customer’s rights hereunder shall immediately cease. Customer shall immediately refrain from further Use of the Work;
Nothing in this Section 21 shall limit either Party’s rights or remedies available at law, in equity or otherwise. The termination of this Agreement and/or the Licence shall not prejudice or affect the accrued rights or claims of Company nor shall it release Customer from any of the restrictions of this Agreement concerning use, possession, copying, or disclosure of the Work and the Confidential Information of Company, all of which shall survive termination.
22. Survival. The provisions of Sections 1, 2.2, 3, 12, 13, 14, 15, 16, 17, 18, 20, 21, 22, 25, 26 and 29 herein shall survive the termination of this Agreement.
23. Force Majeure. Neither party shall be liable to the other party for non-performance or delay in performance caused by anything beyond reasonable control, including without limitation, acts of God, acts or omissions of the other party, acts of government, war, strikes, lockouts, embargoes, failure of communications networks, or denial of service/access attacks.
24. Notices. Any notice required or permitted to be given by one Party to the other under this Agreement must be in writing and be personally delivered, sent by courier, by facsimile, e-mail of a PDF document or by prepaid registered mail. A Party may change its address by notice to the other Party. Notice that is mailed will be deemed to have been received five (5) Business Days after date of mailing. Notices personally delivered, sent by courier, by e-mail of a PDF document (with confirmation of transmission) or by facsimile will be deemed to be received on the next Business Day. Such notices must be sent to the respective parties at the following addresses (or at such other address for a party as shall be specified in a notice given in accordance with this Section 24):
(a) If to Company:
Discovered Intelligence Inc.
2421 Huron Park Place
(b) If to Customer:
The e-mail address provided by you when registering for Aura Asset Intelligence Sandbox access
25. Assignment. Company may assign this Agreement or any of its rights or obligations hereunder, in whole or in part, and upon such assignment shall be released from all obligations hereunder. Customer shall not assign this Agreement or any of its rights or obligations hereunder, in whole or in part, without the prior written consent of Company, which consent may be arbitrarily withheld. Upon transfer, Customer may not retain any copy or copies of the Work.
26. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of Ontario and federal laws of Canada applicable therein and shall be treated, in all respects, as an Ontario contract. The Parties submit to the jurisdiction of the courts of Ontario. The Parties hereby expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods and the International Sale of Goods Act (Ontario), as amended, replaced or re-enacted from time to time.
27. Language. The Parties have required that this Agreement and all documents relating thereto be drawn-up in English. Les parties ont demandé que cette convention ainsi que tous les documents qui s’y rattachent soient rédigés en anglais.
28. Amendment. This Agreement may not be modified unless agreed to in writing by both Parties. Any consent by a Party to, or waiver of a breach by the other, whether express or implied, shall not constitute a consent to or waiver of or excuse for any other different or subsequent breach unless such waiver or consent is in writing and signed by the Party claimed to have waived or consented. Except as otherwise provided herein, no term or provision hereof shall be deemed waived and no breach excused.
29. Severability. Any provision of this Agreement which is held to be invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective only to the extent of such invalidity or unenforceability and shall be severed from the balance of this Agreement without invalidating or affecting the remaining provisions of this Agreement in that or any other jurisdiction, which remaining provisions shall continue in full force and effect.
30. Number and Gender. Words importing the singular include the plural and vice versa; and words importing gender include all genders.
31. Headings. The section headings in this Agreement are inserted for convenience of reference only and shall not be considered in the interpretation of this Agreement.
32. Entire Agreement. This Agreement, together with all schedules hereto, constitutes the entire agreement and understanding between the Parties with respect to the matters dealt with herein and shall enure to the benefit of and be binding upon each of the Parties and their respective successors and permitted assigns. All previous agreements, understandings, and representations, whether written or oral, between the parties have been superseded by this Agreement.
1. Software. The Software licensed under this Agreement is identified as:
Licensed Products and Product Description:
A. Name of Licensed Products and Product Description.
The Software licensed under this Agreement is identified as Aura Asset Intelligence™.
The software product licensed under this agreement is described as:
Aura delivers powerful, continuous Cyber Asset Attack Surface Management (CAASM) using Splunk®. Gain a complete and accurate understanding of your assets and associations over time, accelerate and enrich your security investigations, and track real-time endpoint compliance to quickly identify gaps in your security controls.
B. Description of Documentation to be Provided.
Documentation will be made available via an online customer support portal https://docs.assetintelligence.app
C. Form in which Licensed Products Will Be Delivered.
All Software, Tools, and Documentation will be provided to Customer over the Internet at a location specified by Company.
D. Acceptance Criteria for Licensed Products.
The application is running without error and all key features and components (i.e. searches, reports, dashboards) functioning correctly.
The following shall apply to technical support provided under this Agreement.
1. Obtaining Technical Support. Technical support will be provided over Internet (which may include e-mail, website message system, or other electronic messaging methods). To access and receive Remote Support, send your request to Company using one of the following:
· E-mail: email@example.com
· Support Portal: https://support.discoveredintelligence.ca
A representative of Company will contact you upon receipt of the request. Average response time will be within two (2) Business Days of receipt of request.
2. Limitation of Support Services. Support will be provided only for use of the current version of the Software.
3. Scope of Support Services. Technical support services are provided to resolve or to assist Authorized Users with only the following technical issues:
· Correction/reporting of non-execution or malfunctioning of the Software
· Correction/reporting of non-conformance of the Software with the Documentation
· Answering basic user questions from the Authorized Users
· Providing guidance and direction around specific features and functionality relating to the Software