BY DOWNLOADING, INSTALLING, COPYING, ACCESSING OR USING THISSOFTWARE, YOU INDICATE THAT YOU UNDERSTAND AND ACCEPT ALL THE TERMS OF THIS ENDUSER LICENSE AGREEMENT (“AGREEMENT”).
IF YOU ARE ACCEPTING THESE TERMS ONBEHALF OF A COMPANY OR ANY OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THATYOU HAVE FULL AUTHORITY TO DO SO.
MINERVA IS WILLING TO LICENSETHE SOFTWARE AND DOCUMENTATION TO YOU ONLY UPON THE CONDITION THAT (A) YOU HAVEPURCHASED THE SOFTWARE FROM MINERVA OR A DISTRIBUTOR, SYSTEMS INTEGRATOR ORRESELLER AUTHORIZED BY MINERVA TO DISTRIBUTE / SELL MINVERA’S SOFTWARE ANDSERVICES TO END USERS IN YOUR TERRITORY (AN “AUTHORIZED PARTNER”) (B) YOUACCEPT ALL THE TERMS CONTAINED IN THIS AGREEMENT AND (C) YOU ARE IDENTIFIED ASTHE END USER IN THE APPLICABLE ORDER CONFIRMATION.
IF YOU ARE NOT THE END USER IDENTIFIED IN THEORDER CONFIRMATION, YOU HAVE NO LICENSE TO USE THE SOFTWARE.
IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD, INSTALL, COPY, ACCESS OR USE THE SOFTWARE.
UNLESS AND UNTIL YOU HAVE ENTERED INTO ASEPARATE LICENSE AGREEMENT WITH MINERVA, THIS AGREEMENT CONSTITUTES THE FINAL,COMPLETE, AND EXCLUSIVE AGREEMENT BETWEEN THE PARTIES REGARDING THE SOFTWAREAND DOCUMENTATION PROVIDED HEREUNDER, AND SUPERSEDES ALL PRIOR ORCONTEMPORANEOUS AGREEMENTS, UNDERSTANDINGS, AND COMMUNICATION, WHETHER WRITTENOR ORAL, WITH RESPECT TO SUCH SOFTWARE AND DOCUMENTATION.
1.1. "Affiliate" means any entity whichdirectly, or indirectly controls Minerva, is controlled by Minerva, or is undercommon control with Minerva.
1.2. “Device” means any kind of device capable of processing data andincludes any of the following types of computer devices: diskless workstations,personal computer workstations, networked computer workstations,homeworker/teleworker home-based systems, file and print servers, emailservers, Internet gateway devices, storage area network servers (SANS),terminal servers, mobile devices or portable workstations connected orconnecting to the server(s) or network.
1.3. “Documentation” means explanatory materials in printed, electronicor online form accompanying the Software in English and other languages, ifavailable.
1.4. "End User” (or "You/Your")" meansindividual(s) installing or using the Software on their own behalf or who arelegally using a copy of the Software; or, if the Software is being downloadedor installed on behalf of an organization, such as an employer, "You"further means the organization for which the Software is downloaded orinstalled. It is hereby represented that such organization has authorized theperson accepting this Agreement to do so on its behalf. For purposes hereof theterm "organization", without limitation, includes any partnership,limited liability company, corporation, association, joint stock company,trust, joint venture, labor organization, unincorporated organization, legalentity or governmental authority.
1.5. “Software” means the Minerva software specified in the applicableOrder Confirmation and any Updates or Upgrades, if any, provided to You under Minerva’ssupport services program. Notwithstandingthe foregoing, Minerva shall be under no obligation to provide any Updates or Upgradesto the Software under this Agreement.
1.6. “Licensed Configuration” means the permittedtype and quantity of Devices and platforms, as applicable, upon which You mayinstall and use the Software, as specified in an Order Confirmation, including forevaluation, beta-testing, production and/or non-production uses.
1.7. “License Term” means the time period for which Software andDocumentation is licensed for Your use. Unless otherwise specified in an Order Confirmation, the License Termfor Software is annual and commences upon the date on which the applicableOrder Confirmation is sent to You.
1.8. “Minerva” means Minerva Labs Ltd., an Israel company, with officeslocated at Imber 14 Petah Tikva 4951148, and any of its Affiliates.
1.9. “Order Confirmation” means a confirmation notice letter issuedelectronically by Minerva to You, confirming Software and support (ifapplicable) purchased by You, including the applicable Licensed Configurationand also containing download details.
1.10.“Subsidiary” refers to any entity controlled by You through greaterthan fifty percent (50%) ownership of the voting securities.
1.11.“Updates” are bug-fixes and error corrections and other updates relatedto content, , policy updates, database updates for the Software which are madegenerally available to Minerva’s customer base and which are not separatelypriced or marketed by Minerva.
1.12.“Upgrade” means any and all improvements in the Software which are madegenerally available to Minerva’s customer base and which are not separatelypriced or marketed by Minerva.
2.1. Grantof License. Subject to the terms and conditions ofthis Agreement, Minerva hereby grants You a limited, non-exclusive, non-transferableright during the applicable License Term (i) to download, install and use theSoftware in the Licensed Configuration set forth in the applicable OrderConfirmation solely on Devices owned or controlled by You, in executable formonly, and (ii) to download and use the Documentation in connection suchSoftware; in each case solely for Your own internal business operations. Youmay copythe Software (in executable form only) and the Documentation as reasonablynecessary to exercise the license rights granted in subsection, includingmaking a reasonable number of copies for backup and archival purposes.
2.2. Multiple Platforms. If the Softwaresupports multiple platforms, the total number of Devices on which all versionsof the Software are installed may not exceed the quantity specified in YourOrder Confirmation. In the event Your usageof the Software exceeds the limits specified in Your Order Confirmation, Minervamay, at its option and without prejudice to any other remedy available to it, invoiceYou for the overage at Minerva’s then-current rates, and You shall make paymentwithin Minerva’s established timeframes for payment
2.3. Subsidiaries. You may permit useof the Software and Documentation in accordance with the terms of thisAgreement only for so long as such entity remains Your Subsidiary. You shall beresponsible and fully liable for each Subsidiary’s compliance with or breach ofthe terms of this Agreement.
2.4. General Restrictions. You may not, nor mayYou allow any third party to: (i) decompile, disassemble or reverse-engineerthe Software, except to the extent expressly permitted by applicable law,without Minerva’s prior written consent; (ii) remove any product identificationor proprietary rights notices of the Software or Documentation; (iii) lease,lend or use the Software for timesharing or service bureau purposes; (iv)modify or create derivative works of the Software or Documentation; or (v) useor copy the Software or Documentation except as expressly provided herein.
2.5. Limited Rights. The Software and Documentation are“commercial items” (FAR 2.101), consisting of “commercial computer software”and “commercial computer software documentation” (FAR 12.212 andDFARS 227.7202). If the Software and Documentation are beingacquired by or on behalf of the U.S. Government, then, as provided in FAR12.212 and DFARS 227.7202-1 through 227.7202-4, as applicable, the U.S.Government’s rights in the Software and Documentation will be only thosespecified in this Agreement. Your rights in the Software andDocumentation will be limited to those expressly granted in this Agreement. Minerva reserves all rights and licenses inand to the Software and Documentation not expressly granted to You under this Agreement.
2.6. Usage Data. You will ensure that the Software, asoperating on Your Devices, will have external network access to enable the managementapplication portion of the Software to collect and send certain data to Minervaregarding Your usage of the Software, including the number of agents deployedand anonymized event data (“Usage Data”). You agree not to disable or otherwise disruptsuch collection or transmission of Usage Data. In the event Usage Data is not reliably reaching Minerva, You willpromptly assist Minerva to troubleshoot and remediate the issue to enable the suchcollection and transmission of Usage Data. You agree that Minerva may use the Usage Data to troubleshoot andmonitor the Software and to enhance, improve, and develop current and futureSoftware and services and to verify Your compliance with this Agreement. Without limiting the generality of theforegoing, Minerva may, at its expense, upon reasonable prior written notice, auditYour compliance with the terms of this Agreement no more than once per year.Minerva will conduct such audit during standard business hours in a manner thatdoes not unreasonably interfere with the conduct of Your business.
3. Disclaimer of Warranties.
3.1. YOU ACKNOWLEDGE, ACCEPT AND AGREE THAT NO SOFTWARE ISERROR-FREE AND YOU ARE ADVISED TO BACK UP YOUR DEVICES AND DATA WITH THE FREQUENCY AND RELIABILITY SUITABLE FOR YOU.
3.2. YOU FURTHER ACKNOWLEDGE THAT THE SOFTWARE AND DOCUMENTATION IS PROVIDED "AS IS" AND THAT MINERVA MAKES NO REPRESENTATION AND GIVES NO WARRANTY AS TO ITS USE OR PERFORMANCE. EXCEPT FOR ANY WARRANTY, CONDITION,REPRESENTATION OR TERM TO THE EXTENT OF WHICH CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW. MINERVA MAKES NO WARRANTY, CONDITION, REPRESENTATION, OR TERM(EXPRESSED OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE) AS TO ANY MATTER INCLUDING, WITHOUT LIMITATION, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANT ABILITY, SATISFACTORY QUALITY, INTEGRATION, OR APPLICABILITY FOR A PARTICULAR PURPOSE. YOU ASSUME ALL FAULTS, AND THE ENTIRE RISK AS TO PERFORMANCE AND RESPONSIBILITY FOR SELECTING THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE SOFTWARE. WITHOUT LIMITING THE FOREGOING PROVISIONS, MINERVA MAKES NO REPRESENTATION AND GIVES NO WARRANTY THAT THE SOFTWARE WILL BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THE SOFTWARE WILL MEET ANY OR ALL OF YOUR REQUIREMENTS WHETHER OR NOT DISCLOSED TO MINERVA.
3.3. SOME COUNTRIES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF EXPRESS OR IMPLIED WARRANTIES, SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU. IN THAT EVENT, SUCH EXPRESS OR IMPLIED WARRANTIES SHALL BE LIMITED IN DURATION TO THE WARRANTY PERIOD (OR THE MINIMUM PERIOD REQUIRED BY THE APPLICABLE LAW).
4. Exclusion and Limitation of Liability.
4.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (A) IN NO EVENT WILL MINERVA BE LIABLE TO YOU FOR ANYSPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE,DATA, BUSINESS OR PROFITS) OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS ORSERVICES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE ORPERFORMANCE OF THE SOFTWARE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASEDUPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OROTHERWISE, AND WHETHER OR NOT MINERVA HAS BEEN ADVISED OF THE POSSIBILITY OFSUCH LOSS OR DAMAGE; AND (B) MINERVA’S TOTAL CUMULATIVE LIABILITY TO YOU FROMALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY WILL BE LIMITED TO ANDWILL NOT EXCEED THE FEES PAID TO MINERVA FOR THE PARTICULAR SOFTWARE GIVINGRISE TO THE LIABILITY DURING THE THEN CURRENT LICENSE TERM.
OUAGREE THAT THE LIMITATIONS SET FORTH IN SECTION 3 AND SECTION 4 FORM ANESSENTIAL BASIS OF THE BARGAIN WITH MINERVA AND SHALL SURVIVE AND APPLY EVEN IFANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITSESSENTIAL PURPOSE.
5. Intellectual Property Ownership.
You agree that the Software and the authorship, systems, ideas, methods of operation, Documentation and other information contained in the Software are proprietary intellectual property and/or the valuable trade secrets of Minervaand that Minerva is protected by civil and criminal law, and by the law ofcopyright, trade secret, trademark and patent laws of the State of Israel, TheEuropean Union and the United States of America, as well as other countries andinternational treaties. Minerva owns and retains all right, title, and interestin and to the Software and Documentation, including without limitation anyerror corrections, enhancements, Updates, Upgrades or other modifications to theSoftware, whether made by Minerva or any third party, and all copyrights,patents, trade secret rights, trademarks, and other intellectual propertyrights therein. Your possession, installation or use of the Software andDocumentation does not transfer to You any title to the intellectual property rightstherein, and You will not acquire any rights to the Software or Documentationexcept as expressly set forth in this Agreement. All copies of the Software andDocumentation made hereunder must contain the same proprietary noticesappearing thereon.
6. Infringement Claims.
6.1. Third-party Claims: Minerva shall defendor settle any claim brought against You by a third party during the applicableLicense Term to the extent it is based upon a claim that the Software, asprovided by Minerva to You under this Agreement and used within the scope ofthis Agreement, infringes, a patent, copyright or trade secret of that thirdparty, and will pay any costs, damages and reasonable attorneys’ feesattributable to such claim that are awarded against You, or payable insettlement, provided that: (i) Minerva is notified promptly, and in any eventno later than within 14 days of Your receipt of notice of the claim, (ii)Minerva receives the required level of reasonable cooperation from You in orderto perform Minerva’s obligations hereunder and (iii) Minerva has sole controlover the defense and all negotiations for settlement or compromise of theclaim. Notwithstanding the terms of this Section 6, Minerva will have noliability for any claim to the extent that it is based on Software or portionsor components there-of that are: (i) not supplied by Minerva, (ii) used in amanner not expressly authorized by this Agreement or any relevantDocumentation, (iii) made in accordance with Your specifications, (iv) modifiedby anyone other than Minerva, if the alleged infringement relates to suchmodification, (v) combined with other products, processes or materials wherethe alleged infringement would not exist but for such combination or (vi) whereYou continue the allegedly infringing activity after being notified thereof andprovided with modifications that would have avoided the alleged infringement.
6.2. Injunctions. In the event that theSoftware is held by a court of competent jurisdiction to constitute aninfringement or use of the Software is enjoined, Minerva shall, at its solediscretion, do one of the following: (i) procure for You the right to continueuse of the Software, (ii) provide a modification to the Software so that itsuse becomes non-infringing, (iii) replace the Software with software that issubstantially similar in functionality and performance or (iv), if none of theforegoing alternatives is reasonably available to Minerva, Minerva shall refundthe residual value of the purchase price paid by You for the infringingSoftware, depreciated using a straight-line method of depreciation over a three(3) year period from the beginning of the License Term for the applicable Software.This Section 6 states Minerva’s sole liability and Your exclusive remedy forintellectual property infringement claims.
7.1. You and Minerva (eachshall be referred to hereunder as "Party"),hereto acknowledge that due to its relationship with the other Party, a Party mayhave access to information and materials concerning the other Party’s business,technology, and/or products that are confidential and of substantial value tosaid Party, the value of which could be impaired if disclosed to third parties(“Confidential Information”).Confidential information, written or otherwise must at the time of disclosurebe identified and labeled as Confidential Information belonging to the disclosingParty or under thecircumstances of disclosure, or due to the nature of the information, beinformation of a type that a person exercising reasonable business judgmentwould understand such information to be confidential.When disclosed orally, Confidential Information must also be identified as suchin writing within 15 days after disclosure. Each Party agrees that it will notuse in any way for its own account or the account of any third party, suchConfidential Information, except as authorized under this Agreement, and willprotect Confidentiality of such Information at least to the same extent as itprotects its own Confidential Information and to the same extent that areasonable parties would protect such Confidential Information. Neither Partymay use the other Party’s Confidential Information except to perform its dutiesor exercise its rights under this Agreement.
7.2. The ConfidentialInformation restrictions will not apply to Confidential Information that is (i)already known to the receiving Party, (ii) becomes publicly available throughno wrongful act of the receiving Party, (iii) independently developed by thereceiving Party without benefit of the disclosing Party’s ConfidentialInformation, (iv) has been rightfully received from a third party not underobligation of confidentiality or (v) is required to be disclosed by law,provided the Party compelled to disclose the Confidential Information providesthe Party owning the Confidential Information with prior written notice ofdisclosure adequate for the owning Party to take reasonable action to preventsuch disclosure, where reasonably possible.
7.3. Unless otherwiseagreed to by both Parties, upon termination of this Agreement, each Party willreturn the other Party’s Confidential Information.
7.4. All ConfidentialInformation is and shall remain the property of the disclosing Party. BothParties acknowledge that all Confidential Information is the sole property ofthe disclosing Party, that the disclosing Party is the rightful owner of suchand has the right to use such Confidential Information, and that the receivingParty shall not acquire any proprietary interest in the disclosing Party'sConfidential Information. No license or conveyance of any such rights to thereceiving Party is granted or implied under this Agreement.
Without prejudice to Yourpayment obligations, You may terminate Your license at any time by uninstallingthe Software. Minerva may terminate Your license if You materially breach theterms of this Agreement and You fail to cure such breach within 30 days ofreceiving notice of such breach. Upon any termination of your licenses underthis Agreement, You shall promptly return or destroy all copies of theSoftware, Documentation and Confidential Information, all support or anyadditional related services, if purchased by You, will be terminated, and youshall not be entitled to a refund. Any terms of this Agreement which by theirnature should survive the termination of this Agreement shall survive suchtermination. Without derogating from the generality of the forgoing, theprovisions of Section 7 shall remain in full force and effect and shall survivethe termination of this Agreement.
9. Open-Source Software. TheSoftware may contain or be provided with components subject to the terms andconditions of open source software licenses (“Open-Source Software”). A list of Open-Source Software can be foundat www.minerva-labs.com/documentation/third-party-software. The terms and conditions set forth in thisAgreement shall not apply to, and Minerva disclaims all liability with respectto, the Open Source Software.
11. Export Controls. You acknowledge that the Software issubject to Israeli and, when applicable, US export regulations. You herebyagree to comply with all export and import laws and regulations applicable inthe jurisdictions to or from which the Software will be imported and/orexported. You shall not export the Software to any individual, entity orcountry in which it is prohibited by applicable law or regulation. You areresponsible, at Your own expense, for any local government permits, licenses orapprovals required for importing and/or exporting the Software.
12. Governing Law; Actions. This Agreement will begoverned by and construed in accordance with the laws of (i) the State of Delaware,if You are domiciled in North America, or (ii) the State of Israel, if You arenot domiciled in North America, in each case excluding that body of laws knownas conflicts of law, and any legal action or proceeding arising under thisAgreement in accordance with (i) or (ii) above shall be brought exclusively inthe federal or state courts located in the City and County of San Francisco, Californiaor Tel-Aviv, Israel, respectively, and the parties hereby irrevocably consentto the personal jurisdiction and venue therein. The parties expressly agree that the United Nations Convention onContracts for the International Sale of Goods will not apply. However, You agree that Minerva may seekequitable relief in any court of competent jurisdiction in order to protect itsproprietary rights in the Software or Documentation.
13. General. You may not assign this Agreement, in wholeor in part, by operation of law or otherwise, without Minerva’s express priorwritten consent. Any attempt to assignthis Agreement without such consent, will be null and of no effect. Minerva may assign this Agreement withoutYour consent to an Affiliate or to a successor or acquirer in connection with amerger or acquisition, including a stock sale or a sale of substantially allassets to which this Agreement relates. Subject to the foregoing, this Agreement will bind and inure to thebenefit of each Party's successors and permitted assigns. Except as expressly set forth in thisAgreement, the exercise by either Party of any of its remedies under thisAgreement will be without prejudice to its other remedies under this Agreementor otherwise. Any waiver, modification or amendment of any provision of thisAgreement will be effective only if in writing and signed by duly authorizedrepresentatives of both Parties. Withoutlimiting the foregoing, any terms and conditions contained in any purchaseorder or other communication from You that are inconsistent with or in additionto the terms and conditions of this Agreement will be deemed stricken, unlessexpressly agreed to in writing by Minerva. No provision hereof shall be deemed waived unless such waiver shall bemade in writing and signed by Minerva. If any provision of this Agreement isheld invalid, that provision will be enforced to the maximum extent permissibleto give effect to the intent of the Parties and the other provisions of thisAgreement will remain in full force and effect. All notices, requests, demands and determinations to Minerva under thisAgreement (other than routine operational communications) shall be sent to:Imber 14 Petah Tikva 4951148, and any of its Affiliates. If You have anyquestions regarding this Agreement, You may contact Minerva at [email protected]