Nessus-EULA
TENABLE NETWORK SECURITY, INC.
NESSUS
SOFTWARE LICENSE AGREEMENT
This is a legal agreement ("Agreement") between Tenable Network Security, Inc., a Delaware
corporation having offices at 8830 Stanford Boulevard, Suite 312, Columbia, MD 21045 ("Tenable"),
and you, the party licensing Software and obtaining the feed services ("You"). This Agreement
covers your permitted use of the Software and the Services. BY CLICKING BELOW YOU INDICATE YOUR
ACCEPTANCE OF THIS AGREEMENT AND YOU ACKNOWLEDGE THAT YOU HAVE READ ALL OF THE TERMS AND CONDITIONS
OF THIS AGREEMENT, UNDERSTAND THEM, AND AGREE TO BE LEGALLY BOUND BY THEM. If You do not agree
with the terms of this Agreement, You may not use the Software, as such term is defined below. The
Software can only be provided to You by Tenable. The term "Agreement" includes any exhibits to
the document.
1. Grant of Software License.
(a) Grant. Subject to the terms and conditions, and your acceptance, of this Agreement, Tenable
grants to You a perpetual, non-exclusive, non-transferable license (the "License") in object code
form only to use the Software (i) solely for Your internal operations and internal security
purposes to seek and assess information technology vulnerabilities events for Your own networks;
and (ii) to provide services to third parties to seek and assess information technology
vulnerabilities events on the third party's network. Any rights in the Software not granted in
this Agreement are expressly reserved by Tenable.
(b) Definition of Software.
(i) The term "Software" means (i) Nessus 3.x that You download from any Tenable website, including
www.nessus.org, or obtain via CD or any other method; (ii) the associated user manuals and user
documentation, if any, as well as any patches, updates, improvements, additions, enhancements and
other modifications or revised versions of Nessus 3.x that may be provided to You by Tenable from
time to time that were developed by Tenable; and (iii) any Nessus daemons, command line interfaces,
and/or any graphical user interfaces You obtain from Tenable that were developed by Tenable.
(ii) Any Software that is not marked as copyrighted by Tenable are not Software as defined under
this Agreement and are subject to other license terms.
(iii) Tenable has the right to, or the right to license, the Software, including any libraries
licensed under LGPL. Contact Tenable for more details.
(c) Maintenance and Support. Tenable will not provide any maintenance or support services as part
of this Agreement unless You obtain a "Direct Feed Subscription", as such term is defined in
Exhibit A, from Tenable.
2. Subscriptions.
You may obtain a subscription to receive Plugins (as such term is defined in Exhibit A) and updates
to the Plugins as further described in Exhibit A, which is incorporated herein by reference.
3. Term.
This Agreement commences on the date on which You execute this Agreement or download, install or
use the Software (whichever occurs first) (the "Effective Date") and continues until it is
terminated according to the terms of this Agreement.
4. Intellectual Property.
This Agreement does not transfer to You any title to or any ownership right or interest in the
Software. You acknowledge that Tenable owns and retains all right, title and interest in and to
the Software. All enhancements, modifications and derivative works that Tenable makes to the
Software or accompanying documentation, and all intellectual property rights therein, will be the
property of Tenable. Your rights with respect to the Software are limited to the right to use the
Software pursuant to the terms and conditions in this Agreement.
5. No Reverse Engineering, Other Restrictions.
You may not directly or indirectly: (i) sell, lease, redistribute or transfer any of the Software
on a stand-alone basis; (ii) decompile, disassemble, reverse engineer, or otherwise attempt to
derive, obtain or modify the source code of the Software; (iii) reproduce, modify, translate or
create derivative works of all or part any of the Software; (iv) rent, lease or loan the Software
in any form to any third party or otherwise allow a third party to use the Software; or (v) remove,
alter or obscure any proprietary notice, labels, or marks on the Software. You may not sublicense
any of the rights granted to You in this Agreement. You may not distribute or otherwise provide
Software to third parties. You are responsible for all use of the Software and for compliance with
this Agreement; any breach by You or any user using the Software on Your behalf shall be deemed to
have been made by You.
6. Restrictions on Third Party Use and Access.
You agree not to deliver or otherwise make available the Software, in whole or in part, to any
party other than Tenable, except for purposes specifically related to Your use of the Software
without Tenable's prior written consent. You agree to use Your best efforts and to take all
reasonable steps to ensure that no unauthorized parties have access to the Software and that no
unauthorized copy, publication, disclosure or distribution of the Software, in whole or in part, in
any form is made by You or any third party. You agree to notify Tenable of any unauthorized access
to, or use, copying, publication, disclosure or distribution of, the Software. You acknowledge
that the Software contains valuable confidential information and trade secrets of Tenable or its
affiliates and their licensors or suppliers, and that unauthorized access to, or use, copying,
publication, disclosure or distribution of, the Software is harmful to Tenable or its affiliates
and their licensors or suppliers.
7. Confidentiality.
As used in this Agreement, "Confidential Information" means any and all information and material
that: (i) gives of Tenable some competitive business advantage or the opportunity of obtaining
such advantage or is otherwise confidential or a trade secret; (ii) is marked "Confidential,"
"Restricted," or "Confidential Information" or other similar marking; (iii) is known by You to be
confidential or proprietary; or (iv) from all the relevant circumstances, should reasonably be
assumed by You to be confidential or proprietary. Confidential Information includes the Software.
Confidential Information does not include any information that You can prove: (a) was already known
to You without restrictions at the time of its disclosure by Tenable; (b) after its disclosure by
Tenable, is made known to You without restrictions by a third party having the right to do so; (c)
is or becomes publicly known without violation of this Agreement; or (d) is independently developed
by You without reference to the Confidential Information. Confidential Information will remain the
property of Tenable, and You will not be deemed by virtue of this Agreement or any access to the
Confidential Information to have acquired any right, title or interest in or to the Confidential
Information. You may not copy any Confidential Information without Tenable's prior written
permission. You may not remove any copyright, trademark, proprietary rights or other notices
included in or affixed to any Confidential Information. You may not use the Confidential
Information for Your or a third party's benefit, competitive development or any other purpose. You
agree: (I) to hold the Confidential Information in strict confidence; (II) to limit disclosure of
the Confidential Information to Your own employees having a need to know the Confidential
Information for the purposes of this Agreement; (III) not to disclose any Confidential Information
to any third party; (IV) to use the Confidential Information solely and exclusively in accordance
with the terms of this Agreement in order to carry out Your obligations and exercise Your rights
under this Agreement; (V) to afford the Confidential Information at least the same level of
protection against unauthorized disclosure or use as You normally uses to protect Your own
information of a similar character, but in no event less than reasonable care; and (VI) to notify
Tenable promptly of any unauthorized use or disclosure of the Confidential Information and to
cooperate with and assist Tenable in every reasonable way to stop or minimize such unauthorized use
or disclosure. You agree that if a court of competent jurisdiction determines that You have
breached, or attempted or threatened to breach, Your confidentiality obligations to Tenable or
Tenable's proprietary rights, money damages, Tenable will suffer irreparable harm and that monetary
damages will be inadequate to compensate Tenable for such breach. Accordingly, Tenable, in
addition to and not in lieu of any other rights, remedies or damages available to it at law or in
equity, shall be entitled to seek appropriate injunctive relief and other measures restraining
further attempted or threatened breaches of such obligations without requirement to post any bond.
8. Warranty and Disclaimer.
(a) Software. Tenable warrants that, for a period of thirty (30) days from the Effective Date (the
"Warranty Period"), the unmodified Software will, under normal use, substantially perform the
functions described in its technical documentation. If there has been a breach of this warranty,
then Tenable's sole obligation, and Your exclusive remedy, will be for Tenable, at its option, to
correct the performance of the Software at no charge so that it substantially performs the
functions described in its technical documentation or to replace the Software. You acknowledge
that, because the license for the Software is at no charge, the remedies described in the preceding
sentence are sufficient and can not fail of their essential purpose.
(b) Disclaimer. EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 8(a), TENABLE DOES NOT MAKE ANY
WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTIES OF TITLE,
NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, INTEGRATION, PERFORMANCE AND
ACCURACY, AND ANY IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE
OR USAGE OF TRADE, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION,
RESTRICTION, OR MODIFICATION UNDER APPLICABLE LAW. TENABLE MAKES NO WARRANTY THAT THE SOFTWARE
WILL OPERATE ERROR-FREE, FREE OF ANY SECURITY DEFECTS OR IN AN UNINTERRUPTED MANNER.
9. Exclusion Damages.
UNDER NO CIRCUMSTANCES WILL TENABLE BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR DIRECT
(INCLUDING FOR NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT, MISREPRESENTATION AND OTHER
CONTRACT OR TORT CLAIMS), INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE
DAMAGES (INCLUDING NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT, MISREPRESENTATION AND OTHER
CONTRACT OR TORT CLAIMS; LOST PROFITS; OR ANY DAMAGES RESULTING FROM LOSS OF DATA, SECURITY BREACH,
PROPERTY DAMAGE, LOSS OF REVENUE, LOSS OF BUSINESS OR LOST SAVINGS), ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT, THE PERFORMANCE OF THE SOFTWARE OR OF ANY OTHER OBLIGATIONS
RELATING TO THIS AGREEMENT, WHETHER OR NOT TENABLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. YOU ARE SOLELY RESPONSIBLE AND LIABLE FOR VERIFYING THE SECURITY, ACCURACY AND ADEQUACY
OF ANY OUTPUT FROM THE SOFTWARE, AND FOR ANY RELIANCE THEREON.
10. Additional Provisions Regarding Liability.
The parties agree that the foregoing limitations will not be read so as to limit any liability to
an extent that would not be permitted under applicable law and specifically will not limit any
liability for gross negligence, intentional tortious or unlawful conduct or damages for strict
liability that may not be limited by law.
11. Indemnification.
Each of the parties acknowledges and agrees that by entering into and performing its obligations
under this Agreement, Tenable will not assume and should not be exposed to the business and
operational risks associated with Your business. You acknowledge that Your use of the Software is
only a portion of Your overall security solution and that Tenable is not responsible for Your
overall security solution. As between You and Tenable, You are (and Tenable is not) responsible
for the success or failure of such security solution. Accordingly, You agree that you will, at
your expense, indemnify, defend and hold Tenable harmless in all claims and actions that seek
compensation of any kind for injury or death to persons and/or for damage to property, and that
arise out of or relate to Your security solutions or Your use of the Software or the solutions You
provide to a third party through Your use of the Software. You also agree to pay all settlements,
costs, damages, legal fees and expenses finally awarded in all such claims and actions.
12. Legal Compliance; Restricted Rights.
The Software are provided solely for lawful purposes and use. You are solely responsible for, and
agree to perform your obligations in a manner that complies with all applicable national, regional
and local laws, statutes, ordinances, regulations, codes and other types of government authority
(including those governing export control, unfair competition, anti-discrimination, false
advertising, privacy and data protection, and publicity and those identifying and procuring
required permits, licenses, approvals, and other consents) ("Laws"). If a charge is made that You
are not complying with any such Laws, You will promptly notify Tenable of such charges in writing.
Without limiting the foregoing, You agree to comply with all U.S. export Laws and applicable export
Laws of Your locality (if You are not in the United States), to ensure that no information or
technical data provided pursuant to this Agreement is exported or re-exported directly or
indirectly in violation of Law or without first obtaining all required authorizations or licenses.
You will, at Your sole cost and expense, obtain and maintain in effect all permits, licenses,
approvals and other consents related to Your obligations under this Agreement. You agree, at Your
expense, to comply with all foreign exchange and other Laws applicable to You. The Software is
licensed subject to Tenable's standard commercial agreement; Software licensed for use by the
United States government is provided with "Restricted Rights" only as defined in 48 C.F.R.
_52.227-14 and 48 C.F.R. _252.227-7014 if the commercial terms are deemed not to apply.
13. Termination.
(a) You may terminate this Agreement at any time by destroying or returning to Tenable the
Software, together with all copies, modifications and merged portions of the Software in any form.
(b) This Agreement and Your License to use the Software shall terminate automatically if You fail
to comply with any term or condition of this Agreement. Immediately after termination of this
Agreement, You shall destroy or return to Tenable the Software, together with all copies,
modifications and merged portions of the Software in any form, and shall certify to Tenable in
writing that through Your best efforts and to the best of your knowledge all such materials have
been destroyed or returned to Tenable and removed from host computers on which Software resided.
14. Governing Law.
This Agreement shall be governed in all respects by the laws of the State of Maryland, USA, without
regard to choice-of-law rules or principles. You expressly agree with Tenable that this Agreement
shall not be governed by the U.N. Convention on Contracts for the International Sale of Goods, the
application of which is expressly excluded.
15. Dispute Resolution.
You and Tenable submit to the exclusive jurisdiction of the courts of Howard County, Maryland and
the United States District Court for Maryland, Baltimore Division, for any question or dispute
arising out of or relating to this Agreement. Due to the high costs and time involved in
commercial litigation before a jury, the parties waive all right to a jury trial with respect to
any and all issues in any action or proceeding arising out of or related to this Agreement.
16. Notices.
Any notices or other communication required or permitted to be made or given by either Party
pursuant to this Agreement will be in writing, in English, and will be deemed to have been duly
given when delivered if delivered personally or sent by recognized overnight express courier, to
the address specified herein or such other address as Tenable may specify in writing. All notices
to Tenable shall be sent to the attention of the Legal Department (unless otherwise specified by
Tenable).
All notices shall be sent to:
Tenable Network Security
8830 Stanford Boulevard, Suite 312
Columbia, MD 21045
Attn: Legal Department
17. Transfer and Assignment.
You may not rent, lease, lend, sublicense or otherwise provide the Software to any third party. You
may not assign or otherwise transfer this Agreement without Tenable's prior written consent. You
may use the Software to provide services to third parties as expressly provided in this Agreement.
18. Publicity.
You will not use Tenable's company name or any trademarks, logos, service marks or other
intellectual property, or refer to Tenable or any of its employees, in any form of advertising,
publicity or release without the prior written approval of Tenable, which Tenable may withhold in
its sole discretion.
19. Language.
The language of this Agreement is English and all notices given under this Agreement must be in
English to be effective. No translation, if any, of this Agreement or any notice will be of any
effect in the interpretation of this Agreement or in determining the intent of the parties. The
parties have expressly agreed that all invoices and related documents be drafted in English.
20. Third Parties.
This Agreement is not intended nor will it be interpreted to confer any benefit, right or privilege
in any person or entity not a party to this Agreement. Any party who is not a party to this
Agreement has no right under any Law to enforce any term of this Agreement.
21. Trademarks.
Nessus is a trademark of Tenable. Tenable does not grant to You, either expressly or by
implication, any license or permission under this Agreement to use any of the Tenable marks
(including trademarks, service marks, trade names, trade dress, symbols, logos, designs, domain
names, slogans and other source identifiers) (collectively, the "Marks").
22. General.
This Agreement constitutes the entire agreement between the parties, and supersedes all other prior
or contemporaneous communications between the parties (whether written or oral) relating to the
subject matter of this Agreement. No supplement, modification or amendment of this Agreement shall
be binding, unless executed in writing by a duly authorized representative of each party to this
Agreement. The provisions of this Agreement will be deemed severable, and the unenforceability of
any one or more provisions will not affect the enforceability of any other provisions. In
addition, if any provision of this Agreement, for any reason, is declared to be unenforceable, the
parties will substitute an enforceable provision that, to the maximum extent possible under
applicable law, preserves the original intentions and economic positions of the parties. No
failure or delay by a party in exercising any right, power or remedy will operate as a waiver of
that right, power or remedy, and no waiver will be effective unless it is in writing and signed by
the waiving party. If a party waives any right, power or remedy, the waiver will not waive any
successive or other right, power or remedy the party may have under this Agreement. Any provision
of this Agreement that imposes or contemplates continuing obligations on a party will survive the
expiration or termination of this Agreement. "Including" and its derivatives (such as "include"
and "includes") mean including without limitation; this term is as defined, whether or not
capitalized in this Agreement.
EXHIBIT A
TENABLE NETWORK SECURITY, INC.
SUBSCRIPTION AGREEMENT
This is a legal agreement ("Subscription Agreement") between Tenable Network Security, Inc., a
Delaware corporation having offices at 8830 Stanford Boulevard, Suite 312, Columbia, MD 21045
("Tenable"), and you, the party downloading the Plugins as defined below ("You"), through Tenable's
Subscription service as defined below. This Subscription Agreement covers your permitted use of
the Plugins. BY CLICKING BELOW YOU INDICATE YOUR ACCEPTANCE OF THIS SUBSCRIPTION AGREEMENT AND YOU
ACKNOWLEDGE THAT YOU HAVE READ ALL OF THE TERMS AND CONDITIONS OF THIS SUBSCRIPTION AGREEMENT,
UNDERSTAND THEM, AND AGREE TO BE LEGALLY BOUND BY THEM. If You do not agree with the terms of this
Subscription Agreement, You may not use the Plugins as defined below. The Plugins can only be
provided to You by Tenable.
1) Grant of Plugins License.
i) Grant. Subject to the terms and conditions, and your acceptance, of this Subscription
Agreement, Tenable grants to You a perpetual, non-exclusive, non-transferable license (the
"License") in object code form only to use the Plugins (a) solely for Your internal operations and
internal security purposes to seek and assess information technology vulnerabilities events for
Your own networks; and (b) to provide services to third parties to seek and assess information
technology vulnerabilities events on the third party's network. Any rights in the Plugins not
granted in this Subscription Agreement are expressly reserved by Tenable.
ii) Definition of Plugins. The term "Plugins" means (i) any plugins (and related updates) that are
marked as copyrighted by Tenable. Any plugins or components that are not marked as copyrighted by
Tenable are not Plugins as defined under this Subscription Agreement and are subject to other
license terms.
iii) Use. You agree to use the Plugins only in conjunction with Nessus or NeWT vulnerability
scanner programs obtained directly from www.nessus.org or www.tenablesecurity.com and registered
with Tenable ("Registered Scanners") and for which You have paid the applicable fee, if any. Your
use of the Plugins will be in accordance with one of the Subscriptions described in Section 2
below.
2) Subscriptions.
i) General. The Registered Feed Subscription and Direct Feed Subscription include vulnerability
detection programs not developed by Tenable or its licensors, which are licensed to You under
separate agreements. The terms and conditions of this Subscription Agreement do not apply to such
vulnerability detection programs.
ii) Registered Feed Subscription. The Registered Feed Subscription permits You to use the Plugins
in conjunction with Registered Scanners to detect vulnerabilities only on your system or network or
on the system or network of a third party for which you perform scanning services, auditing
services, incident response services, vulnerability assessment services or other security
consulting services.
iii) Direct Feed Subscription. The Direct Feed Subscription permits You to use the Plugins in
conjunction with Registered Scanners to detect vulnerabilities only on your system or network or on
the system or network of a third party for which you perform scanning services, auditing services,
incident response services, vulnerability assessment services or other security consulting
services; provided that You have paid the applicable annual subscription fee for each Registered
Scanner in conjunction with which You will use the Plugins. You will receive the Direct Feed
Subscription and email support if you use this Direct Feed Subscription with the Supported
commercial version of Nessus (for clarification, a commercial version of Nessus means Nessus
version 3 or better which was developed, copyrighted and distributed by Tenable and not released as
open source or licensed under the GPL). The term "Supported" means the list of Operating System
distribution(s) included in the Plugin FAQ or Nessus FAQ found on any Tenable website, including
www.nessus.org. For the Direct Feed Subscription, You agree to pay a subscription fee to Tenable
for each system on which you have installed a Registered Scanner.
3) Term.
This Subscription Agreement commences on the date on which You execute this Subscription Agreement
or download, install or use the Plugins (whichever occurs first) (the "Effective Date") and
continues until it is terminated according to the terms of this Subscription Agreement.
4) Intellectual Property.
This Subscription Agreement does not transfer to You any title to or any ownership right or
interest in the Plugins. You acknowledge that Tenable owns and retains all right, title and
interest in and to the Plugins. All enhancements, modifications and derivative works that Tenable
makes to the Plugins or accompanying documentation, and all intellectual property rights therein,
will be the property of Tenable. Your rights with respect to the Plugins are limited to the right
to use the Plugins pursuant to the terms and conditions in this Subscription Agreement.
5) No Reverse Engineering, Other Restrictions.
You may not directly or indirectly: (i) sell, lease, redistribute or transfer any of the Plugins on
a stand-alone basis; (ii) decompile, disassemble, reverse engineer, or otherwise attempt to derive,
obtain or modify the source code of the Plugins; (iii) reproduce, modify, translate or create
derivative works of all or part any of the Plugins; (iv) rent, lease or loan the Plugins in any
form to any third party or otherwise allow a third party to use the Plugins; or (v) remove, alter
or obscure any proprietary notice, labels, or marks on the Plugins. You may not sublicense any of
the rights granted to You in this Subscription Agreement. You may not distribute or otherwise
provide Plugins to third parties. You are responsible for all use of the Plugins and for
compliance with this Subscription Agreement; any breach by You or any user using the Plugins on
Your behalf shall be deemed to have been made by You.
6) Restrictions on Third Party Use and Access.
You agree not to deliver or otherwise make available the Plugins, in whole or in part, to any
party other than Tenable, except for purposes specifically related to Your use of the Plugins
without Tenable's prior written consent. You agree to use Your best efforts and to take all
reasonable steps to ensure that no unauthorized parties have access to the Plugins and that no
unauthorized copy, publication, disclosure or distribution of the Plugins, in whole or in part, in
any form is made by You or any third party. You agree to notify Tenable of any unauthorized access
to, or use, copying, publication, disclosure or distribution of the Plugins. You acknowledge that
the Plugins contains valuable confidential information and trade secrets of Tenable or its
affiliates and their licensors or suppliers, and that unauthorized access to, or use, copying,
publication, disclosure or distribution of the Plugins is harmful to Tenable or its affiliates and
their licensors or suppliers.
7) Confidentiality.
As used in this Subscription Agreement, "Confidential Information" means any and all information
and material that: (i) gives of Tenable some competitive business advantage or the opportunity of
obtaining such advantage or is otherwise confidential or a trade secret; (ii) is marked
"Confidential," "Restricted," or "Confidential Information" or other similar marking; (iii) is
known by You to be confidential or proprietary; or (iv) from all the relevant circumstances, should
reasonably be assumed by You to be confidential or proprietary. Confidential Information includes
the Plugins and Subscriptions. Confidential Information does not include any information that You
can prove: (a) was already known to You without restrictions at the time of its disclosure by
Tenable; (b) after its disclosure by Tenable, is made known to You without restrictions by a third
party having the right to do so; (c) is or becomes publicly known without violation of this
Subscription Agreement; or (d) is independently developed by You without reference to the
Confidential Information. Confidential Information will remain the property of Tenable, and You
will not be deemed by virtue of this Subscription Agreement or any access to the Confidential
Information to have acquired any right, title or interest in or to the Confidential Information.
You may not copy any Confidential Information without Tenable's prior written permission. You may
not remove any copyright, trademark, proprietary rights or other notices included in or affixed to
any Confidential Information. You may not use the Confidential Information for Your or a third
party's benefit, competitive development or any other purpose. You agree: (I) to hold the
Confidential Information in strict confidence; (II) to limit disclosure of the Confidential
Information to Your own employees having a need to know the Confidential Information for the
purposes of this Subscription Agreement; (III) not to disclose any Confidential Information to any
third party; (IV) to use the Confidential Information solely and exclusively in accordance with the
terms of this Subscription Agreement in order to carry out Your obligations and exercise Your
rights under this Subscription Agreement; (V) to afford the Confidential Information at least the
same level of protection against unauthorized disclosure or use as You normally uses to protect
Your own information of a similar character, but in no event less than reasonable care; and (VI) to
notify Tenable promptly of any unauthorized use or disclosure of the Confidential Information and
to cooperate with and assist Tenable in every reasonable way to stop or minimize such unauthorized
use or disclosure. You agree that if a court of competent jurisdiction determines that You have
breached, or attempted or threatened to breach, Your confidentiality obligations to Tenable or
Tenable's proprietary rights, money damages, Tenable will suffer irreparable harm and that monetary
damages will be inadequate to compensate Tenable for such breach. Accordingly, Tenable, in
addition to and not in lieu of any other rights, remedies or damages available to it at law or in
equity, shall be entitled to seek appropriate injunctive relief and other measures restraining
further attempted or threatened breaches of such obligations without requirement to post any bond.
8) Disclaimer of Warranties.
YOU EXPRESSLY AGREE THAT USE OF THE PLUGINS AND THE SUBSCRIPTIONS ARE AT YOUR SOLE RISK. THE
SUBSCRIPTONS ARE AVAILABLE STRICTLY ON AN "AS IS" AND "AS AVAILABLE" BASIS. TENABLE DOES NOT MAKE
ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTIES OF
TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, INTEGRATION,
PERFORMANCE AND ACCURACY, AND ANY IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING,
COURSE OF PERFORMANCE OR USAGE OF TRADE, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND
INCAPABLE OF EXCLUSION, RESTRICTION, OR MODIFICATION UNDER APPLICABLE LAW. TENABLE MAKES NO
WARRANTY THAT THE PLUGINS OR SUBSCRIPTIONS WILL OPERATE ERROR-FREE, FREE OF ANY SECURITY DEFECTS OR
IN AN UNINTERRUPTED MANNER.
9) Limitation of Liability.
IF YOU SHOULD BECOME ENTITLED TO CLAIM DAMAGES FROM TENABLE (INCLUDING FOR NEGLIGENCE, STRICT
LIABILITY, BREACH OF CONTRACT, MISREPRESENTATION AND OTHER CONTRACT OR TORT CLAIMS) TENABLE WILL BE
LIABLE ONLY FOR THE AMOUNT OF YOUR ACTUAL DIRECT DAMAGES, NOT TO EXCEED (IN THE AGGREGATE FOR ALL
CLAIMS) THE FEES, IF ANY, YOU PAID TO TENABLE
10) Exclusion of Other Damages.
UNDER NO CIRCUMSTANCES WILL TENABLE BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY
INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING NEGLIGENCE,
STRICT LIABILITY, BREACH OF CONTRACT, MISREPRESENTATION AND OTHER CONTRACT OR TORT CLAIMS; LOST
PROFITS; OR ANY DAMAGES RESULTING FROM LOSS OF DATA, SECURITY BREACH, PROPERTY DAMAGE, LOSS OF
REVENUE, LOSS OF BUSINESS OR LOST SAVINGS), ARISING OUT OF OR IN CONNECTION WITH THIS SUBSCRIPTION
AGREEMENT, THE PERFORMANCE OF THE PLUGINS OR SUBSCRIPTIONS OR OF ANY OTHER OBLIGATIONS RELATING TO
THIS SUBSCRIPTION AGREEMENT, WHETHER OR NOT TENABLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. YOU ARE SOLELY RESPONSIBLE AND LIABLE FOR VERIFYING THE SECURITY, ACCURACY AND ADEQUACY
OF ANY OUTPUT FROM THE PLUGINS AND SUBSCRIPTIONS, AND FOR ANY RELIANCE THEREON.
11) Additional Provisions Regarding Liability.
The parties agree that the foregoing limitations will not be read so as to limit any liability to
an extent that would not be permitted under applicable law and specifically will not limit any
liability for gross negligence, intentional tortious or unlawful conduct or damages for strict
liability that may not be limited by law.
12) Indemnification.
Each of the parties acknowledges and agrees that by entering into and performing its obligations
under this Subscription Agreement, Tenable will not assume and should not be exposed to the
business and operational risks associated with Your business. You acknowledge that Your use of the
Plugins and Subscriptions is only a portion of Your overall security solution and that Tenable is
not responsible for Your overall security solution. As between You and Tenable, You are (and
Tenable is not) responsible for the success or failure of such security solution. Accordingly, You
agree that you will, at your expense, indemnify, defend and hold Tenable harmless in all claims and
actions that seek compensation of any kind for injury or death to persons and/or for damage to
property, and that arise out of or relate to Your security solutions or Your use of the Plugins and
Subscriptions, or the solutions You provide to a third party through Your use of the Plugins and
Subscriptions. You also agree to pay all settlements, costs, damages, legal fees and expenses
finally awarded in all such claims and actions.
13) Your Payment Obligations.
If You obtain a Direct Feed Subscription, You agree to pay any and all amounts due or incurred by
You as specified in the invoice provided by Tenable in consideration for Your obtaining such Direct
Feed Subscription (the "Fees"). Payment is due within thirty (30) days of the date of invoice.
You agree to pay directly or reimburse Tenable for any taxes (including, sales or excise taxes,
value added taxes, landing fees, import duties and the like), however designated and whether
foreign or domestic, arising out of this Agreement, imposed on the Plugins or the use thereof, or
Tenable's performance under this Agreement. You agree to pay Tenable's invoices without deducting
any present or future taxes, withholdings or other charges except those deductions it is legally
required to make. If You are legally required to make any deductions, You agree to pay Tenable
such amounts as are necessary to make the net amounts remaining after such deductions equal to the
stated amount due under this Agreement. The payments or reimbursements will be in such amounts as
are sufficient to relieve Tenable from owing any further taxes, either directly or on the basis of
the payments made under this Agreement. Notwithstanding the foregoing, Tenable will be solely
responsible for its income tax obligations and all employer reporting and payment obligations with
respect to its personnel. You agree to pay any interest and penalties imposed by any taxing
authorities to the extent such interest and penalties are applicable to taxes not paid at Your
request or as a result of reliance by Tenable on Your representations. If a certificate of
exemption or similar document or proceeding is necessary in order to exempt any transaction from a
tax, You will obtain such certificate or document.
14) Legal Compliance; Restricted Rights.
The Plugins and Subscriptions are provided solely for lawful purposes and use. You are solely
responsible for, and agree to perform your obligations in a manner that complies with all
applicable national, regional and local laws, statutes, ordinances, regulations, codes and other
types of government authority (including those governing export control, unfair competition,
anti-discrimination, false advertising, privacy and data protection, and publicity and those
identifying and procuring required permits, licenses, approvals, and other consents) ("Laws"). If
a charge is made that You are not complying with any such Laws, You will promptly notify Tenable of
such charges in writing. Without limiting the foregoing, You agree to comply with all U.S. export
Laws and applicable export Laws of Your locality (if You are not in the United States), to ensure
that no information or technical data provided pursuant to this Subscription Agreement is exported
or re-exported directly or indirectly in violation of Law or without first obtaining all required
authorizations or licenses. You will, at Your sole cost and expense, obtain and maintain in effect
all permits, licenses, approvals and other consents related to Your obligations under this
Subscription Agreement. You agree, at Your expense, to comply with all foreign exchange and other
Laws applicable to You. The Plugins is licensed subject to Tenable's standard commercial
agreement; Plugins licensed for use by the United States government is provided with "Restricted
Rights" only as defined in 48 C.F.R. _52.227-14 and 48 C.F.R. _252.227-7014 if the commercial terms
are deemed not to apply.
15) Termination.
i) You may terminate this Subscription Agreement at any time by destroying or returning to Tenable
the Plugins, together with all copies, modifications and merged portions of the Plugins in any
form.
ii) This Subscription Agreement and Your License to use the Plugins and Subscriptions shall
terminate automatically if You fail to comply with any term or condition of this Subscription
Agreement or if the Nessus Software License Agreement between You and Tenable terminates.
Immediately after termination of this Subscription Agreement, You shall destroy or return to
Tenable the Plugins, together with all copies, modifications and merged portions of the Plugins in
any form, and shall certify to Tenable in writing that through Your best efforts and to the best of
your knowledge all such materials have been destroyed or returned to Tenable and removed from host
computers on which Plugins resided.
16) Governing Law.
This Subscription Agreement shall be governed in all respects by the laws of the State of Maryland,
USA, without regard to choice-of-law rules or principles. You expressly agree with Tenable that
this Subscription Agreement shall not be governed by the U.N. Convention on Contracts for the
International Sale of Goods, the application of which is expressly excluded.
17) Dispute Resolution.
You and Tenable submit to the exclusive jurisdiction of the courts of Howard County, Maryland and
the United States District Court for Maryland, Baltimore Division, for any question or dispute
arising out of or relating to this Subscription Agreement. Due to the high costs and time involved
in commercial litigation before a jury, the parties waive all right to a jury trial with respect to
any and all issues in any action or proceeding arising out of or related to this Subscription
Agreement.
18) Notices.
Any notices or other communication required or permitted to be made or given by either Party
pursuant to this Subscription Agreement will be in writing, in English, and will be deemed to have
been duly given when delivered if delivered personally or sent by recognized overnight express
courier, to the address specified herein or such other address as Tenable may specify in writing.
All notices to Tenable shall be sent to the attention of the Legal Department (unless otherwise
specified by Tenable).
All notices shall be sent to:
Tenable Network Security
8830 Stanford Boulevard, Suite 312
Columbia, MD 21045
Attn: Legal Department
19) Transfer and Assignment.
You may not rent, lease, lend, sublicense or otherwise provide the Plugins to any third party. You
may not assign or otherwise transfer this Subscription Agreement without Tenable's prior written
consent. You may use the Plugins and Subscriptions to provide services to third parties as
expressly provided in this Subscription Agreement.
20) Publicity.
You will not use Tenable's company name or any trademarks, logos, service marks or other
intellectual property, or refer to Tenable or any of its employees, in any form of advertising,
publicity or release without the prior written approval of Tenable, which Tenable may withhold in
its sole discretion.
21) Language.
The language of this Subscription Agreement is English and all notices given under this
Subscription Agreement must be in English to be effective. No translation, if any, of this
Subscription Agreement or any notice will be of any effect in the interpretation of this
Subscription Agreement or in determining the intent of the parties. The parties have expressly
agreed that all invoices and related documents be drafted in English.
22) Third Parties.
This Subscription Agreement is not intended nor will it be interpreted to confer any benefit, right
or privilege in any person or entity not a party to this Subscription Agreement. Any party who is
not a party to this Subscription Agreement has no right under any Law to enforce any term of this
Subscription Agreement.
23) Trademarks.
Nessus is a trademark of Tenable. Tenable does not grant to You, either expressly or by
implication, any license or permission under this Subscription Agreement to use any of the Tenable
marks (including trademarks, service marks, trade names, trade dress, symbols, logos, designs,
domain names, slogans and other source identifiers) (collectively, the "Marks").
24) General.
This Subscription Agreement constitutes the entire agreement between the parties, and supersedes
all other prior or contemporaneous communications between the parties (whether written or oral)
relating to the subject matter of this Subscription Agreement. No supplement, modification or
amendment of this Subscription Agreement shall be binding, unless executed in writing by a duly
authorized representative of each party to this Subscription Agreement. The provisions of this
Subscription Agreement will be deemed severable, and the unenforceability of any one or more
provisions will not affect the enforceability of any other provisions. In addition, if any
provision of this Subscription Agreement, for any reason, is declared to be unenforceable, the
parties will substitute an enforceable provision that, to the maximum extent possible under
applicable law, preserves the original intentions and economic positions of the parties. No
failure or delay by a party in exercising any right, power or remedy will operate as a waiver of
that right, power or remedy, and no waiver will be effective unless it is in writing and signed by
the waiving party. If a party waives any right, power or remedy, the waiver will not waive any
successive or other right, power or remedy the party may have under this Subscription Agreement.
Any provision of this Subscription Agreement that imposes or contemplates continuing obligations on
a party will survive the expiration or termination of this Subscription Agreement. "Including" and
its derivatives (such as "include" and "includes") mean including without limitation; this term is
as defined, whether or not capitalized in this Subscription Agreement.
