LICENSE

END-USER LICENSE AGREEMENT

IMPORTANT-READ CAREFULLY: This End-User License Agreement ("EULA") is a legal agreement between you (either an individual or a single entity) and Infobyte LLC ("Infobyte"). for the Software and Services identified above, which includes computer software and may include associated media, printed materials, and "online" or electronic documentation ("Product"). An amendment or addendum to this EULA may accompany the Product. YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA BY INSTALLING, COPYING, OR OTHERWISE USING THE PRODUCT. IF YOU DO NOT AGREE, DO NOT INSTALL OR USE THE PRODUCT.

1. DEFINITIONS 

1.1 “Content Updates” means content used by certain Infobyte Software which is updated from time to time, including but not limited to updated plugins for vulnerability assessment, management and penetration testing. 

1.2 “Documentation” means the published and generally available user manuals and written materials Infobyte delivers or makes available with the Software. 
1.3 “License Term” shall mean the period in which Customer is authorized to utilize the Software. Each License Term shall be listed on the applicable Product Order Form and shall commence on the date Customer is delivered the Software. If the Product Order Form fails to specify a specific License Term for the use of the Software then it shall be deemed a perpetual License Term. 

1.4 “Faraday® Products” shall mean Infobyte’s proprietary penetration testing products currently marketed under the names Faraday® Professional, Faraday® Corporate, Faraday® Cloud Professional, Faraday® Cloud Standard and Faraday® Cloud Corporate. 

1.5 “Product Order Form” means either Infobyte’s online registration form or other ordering document entered into by Customer and Infobyte which identifies the Software, services, or any hardware ordered by Customer from Infobyte, sets forth the price to be paid for such Software, services, or hardware and sets forth the number of Users who may access and use the Software; the number of IP addresses that may be scanned by the Software; or the number of installs or scans of the Software. 

1.6 “Services” means Infobyte’s maintenance and support services (as described in Section 11.1) 

1.7 “Software" means those Infobyte Faraday Products listed on the applicable Product Order Form and all updates, enhancements, bug fixes and new releases thereto that Infobyte elects in its discretion to make available to Customer. 

1.8 “User” means those specific individual named users who are granted access to the Software by Customer. For the sake of clarity, Users shall include full and part-time employees, contractors, agents, or other workers of Customer; provided, however each individual person shall count as only one User. Once a User has been deactivated by the Software’s administrator (even if as a result of employee turnover) such User license may be transferred to another person.

2. SOFTWARE LICENSES

2.1. License to Faraday Products. To the extent that Customer has licensed any of Infobyte LLC’s proprietary Faraday Products then the following license terms, as applicable, shall apply

Subject to the terms and conditions of this Agreement, Infobyte LLC hereby grants to Customer, during the applicable License Term only, a non-exclusive, non-transferable license to use such Software (in object code form only) solely for network penetration testing purposes, solely in accordance with any restrictions on use set forth on the Product Order Form and only in accordance with the applicable Documentation. Customer shall ensure that its use of the Software does not exceed the number of Users, machines, seats and/or other restrictions set forth on the Product Order Form (all as more fully described on such Product Order Form).

2.2 Delivery and Copies. Delivery shall be deemed to have been made upon Infobyte LLC providing Customer with instructions to download the Software
from a Infobyte LLC designated download site. Notwithstanding anything to the contrary herein, Customer may make a reasonable number of copies of the Software for the sole purpose of backing-up and archiving the Software. Each copy of the Software is subject to all of the terms and conditions of this
Agreement and must contain the same titles, trademarks, and copyright notices as the original. To the extent that Infobyte LLC provides any hardware to Customer (either sold or provided as part of an evaluation), then all shipments are FOB Infobyte LLC’s designated shipping facility.

2.3 Restrictions. All Software provided is licensed, not sold. The restrictions contained in this Agreement represent conditions of Customer’s
license. Customer may not use the Software for the purposes of conducting any comparative analysis, evaluations or product benchmarks with respect to the
Software without Infobyte LLC’s prior written approval. Customer recognizes and agrees that there is no adequate remedy at law for a breach of this Section 2.3 and that such breach would irreparably harm Infobyte LLC for which monetary damages would not be an adequate remedy and that Infobyte LLC is entitled to equitable relief in addition to any other remedies.

* Reservation of Rights. Infobyte LLC. reserves all rights not expressly granted to you in this EULA. 

3. FEES AND PAYMENT TERMS. Customer shall pay Infobyte LLC the fees, charges and other amounts specified on the Product Order Form in accordance with the payment terms set forth on the Product Order Form. Overdue balances are subject to a service charge equal to the lesser of 1.5% per month or the maximum legal interest rate allowed by law. Customer shall be responsible for all shipping costs, including any applicable duties, and taxes levied on any transaction under this Agreement, including, without limitation, all federal, state, and local sales taxes, levies and assessments and local withholding taxes in Customer’s jurisdiction, if any, excluding, however, any taxes based on Infobyte LLC's income.

In the event Customer is required to withhold taxes from its payment to Infobyte LLC or withholding taxes are subsequently required to be paid to a local taxing jurisdiction, Customer is obligated to pay such tax, and Infobyte LLC will receive the full payment, net of any such taxes, as agreed on the applicable
Product Order Form. Customer shall also pay all reasonable travel and out-of-pocket expenses incurred by Infobyte LLC in connection with any Services
rendered provided such expenses have been pre-approved in advance by Customer.

4.   CONTENTS UPDATES. For so long as Customer subscribes to Infobyte LLC’s maintenance and support services for the Software, Customer is granted the right to use, as part of the Software, such Content Updates as and when they are made generally available to Infobyte LLC’s end user customers who are covered by Infobyte LLC’s maintenance and support services for such Software. This Agreement does not otherwise permit Customer to obtain and use Content Updates.

5.   LIMITATION ON REVERSE ENGINEERING, DECOMPILATION, AND DISASSEMBLY. You may not modify, alter, decompile, disassemble, reverse engineer or emulate the functionality, reverse compile or otherwise reduce to human readable form, or create derivative works of the Software without the prior written consent of Infobyte LLC.

6.   TERMINATION. Without prejudice to any other rights, Infobyte LLC. may cancel this EULA if you do not abide by the terms and conditions of this EULA, in which case you must destroy all copies of the Product and all of its component parts. 

7.   CONSENT TO USE OF DATA. You agree that Infobyte LLC. and its affiliates may collect and use technical information you provide as a part of support services related to the Product. Infobyte LLC. agrees not to use this information in a form that personally identifies you. 

8.   NOT FOR RESALE SOFTWARE. Product identified as "Not for Resale" or "NFR," may not be resold, transferred or used for any purpose other than demonstration, test or evaluation. 

9.  LIMITED WARRANTY FOR SOFTWARE PRODUCTS. Infobyte LLC. warrants that the Product will perform substantially in accordance with the accompanying materials for a period of ninety days from the date of receipt. If an implied warranty or condition is created by your state/jurisdiction and federal or state/provincial law prohibits disclaimer of it, you also have an implied warranty or condition, BUT ONLY AS TO DEFECTS DISCOVERED DURING THE PERIOD OF THIS LIMITED WARRANTY (THIRTY DAYS). AS TO ANY DEFECTS DISCOVERED AFTER THE THIRTY (30) DAY PERIOD, THERE IS NO WARRANTY OR CONDITION OF ANY KIND. Some states/jurisdictions do not allow limitations on how long an implied warranty or condition lasts, so the above limitation may not apply to you. Any supplements or updates to the Product, including without limitation, any (if any) service packs or hot fixes provided to you after the expiration of the ninety day Limited Warranty period are not covered by any warranty or condition, express, implied or statutory. LIMITATION ON REMEDIES; NO CONSEQUENTIAL OR OTHER DAMAGES. Your exclusive remedy for any breach of this Limited Warranty is as set forth below. Except for any refund elected by Infobyte LLC., YOU ARE NOT ENTITLED TO ANY DAMAGES, INCLUDING BUT NOT LIMITED TO CONSEQUENTIAL DAMAGES, if the Product does not meet Infobyte LLC.'s Limited Warranty, and, to the maximum extent allowed by applicable law, even if any remedy fails of its essential purpose. The terms of Section 13 below ("Exclusion of Incidental, Consequential and Certain Other Damages") are also incorporated into this Limited Warranty. Some states/jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. This Limited Warranty gives you specific legal rights. You may have others which vary from state/jurisdiction to state/jurisdiction. YOUR EXCLUSIVE REMEDY. Infobyte LLC.'s and its suppliers' entire liability and your exclusive remedy shall be, at Infobyte LLC.'s option from time to time exercised subject to applicable law, (a) return of the price paid (if any) for the Product, or (b) repair or replacement of the Product, that does not meet this Limited Warranty and that is returned to Infobyte LLC. with a copy of your receipt. You will receive the remedy elected by Infobyte LLC. without charge, except that you are responsible for any expenses you may incur (e.g. cost of shipping the Product to Infobyte LLC.). This Limited Warranty is void if failure of the Product has resulted from accident, abuse, misapplication, abnormal use or a virus. Any replacement Product will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer. Outside the United States or Canada, neither these remedies nor any product support services offered by Infobyte LLC. are available without proof of purchase from an authorized international source. To exercise your remedy, contact Infobyte LLC.

10. THE FARADAY SOFTWARE IS PROVIDED TO THE USER ''AS IS.'' FARADAY SOFTWARE DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED.  FURTHERMORE, FARADAY SOFTWARE DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE OR ANY DOCUMENTATION PROVIDED THEREWITH IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY FARADAY SOFTWARE OR A FARADAY SOFTWARE AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY.

11.  DISCLAIMER OF WARRANTIES. The Limited Warranty that appears above is the only express warranty made to you and is provided in lieu of any other express warranties (if any) created by any documentation or packaging. Except for the Limited Warranty and to the maximum extent permitted by applicable law, Infobyte LLC. and its suppliers provide the Product and support services (if any) AS IS AND WITH ALL FAULTS, and hereby disclaim all other warranties and conditions, either express, implied or statutory, including, but not limited to, any (if any) implied warranties, duties or conditions of merchantability, of fitness for a particular purpose, of accuracy or completeness of responses, of results, of workmanlike effort, of lack of viruses, and of lack of negligence, all with regard to the Product, and the provision of or failure to provide support services. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT WITH REGARD TO THE PRODUCT.

12.  EXCLUSION OF INCIDENTAL, CONSEQUENTIAL AND CERTAIN OTHER DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL INFOBYTE LLC. OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE PRODUCT, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS EULA, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF INFOBYTE LLC. OR ANY SUPPLIER, AND EVEN IF INFOBYTE LLC. OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

13.  LIMITATION OF LIABILITY AND REMEDIES.
Notwithstanding any damages that you might incur for any reason whatsoever (including, without limitation, all damages referenced above and all direct or general damages), the entire liability of Infobyte LLC. and any of its suppliers under any provision of this EULA and your exclusive remedy for all of the foregoing (except for any remedy of repair or replacement elected by Infobyte LLC. with respect to any breach of the Limited Warranty) shall be limited to the greater of the amount actually paid by you for the Product or U.S.$5.00. The foregoing limitations, exclusions and disclaimers (including Sections 11, 12 and 13 above) shall apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose. 

14. ENTIRE AGREEMENT. This EULA (including any addendum or amendment to this EULA which is included with the Product) are the entire agreement between you and Infobyte LLC. relating to the Product and the support services (if any) and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Product or any other subject matter covered by this EULA. To the extent the terms of any Infobyte LLC. policies or programs for support services conflict with the terms of this EULA, the terms of this EULA shall control. 

15. Maintenance and Support Services. Infobyte LLC offers multiple maintenance and support programs for the Software. The maintenance and support program selected by Customer shall be as set forth on the applicable Product Order Form and shall be further subject to Infobyte LLC’s maintenance and support policies.

16. Export. Customer acknowledges that the export, re-export, deemed export, and import of the Software and Documentation is subject to certain laws, rules, Executive Orders, directives, arrangements, and regulations (“laws”) of the United States and of other countries. These laws apply to Customer. Customer will not violate these laws. Without limitation, Customer agrees that the Software, Documentation, or any direct or indirect product thereof, must not be exported, re-exported, transferred by download or otherwise, directly or indirectly into (i) Cuba, Iran, Northern Sudan, North Korea, Syria, or into any other country embargoed by the United States, or to (ii) anyone on the United States Treasury Department’s list of Specially Designated Nationals or the United States Commerce Department’s Table of Denial Orders, or to (iii) any end user or for any end use in violation of any United States Executive Order, policy, embargo, or laws, without first obtaining the required licenses or authorizations from the United States
Government. Customer will not allow the Software, related Documentation, or the underlying technology to be used for any purpose prohibited by United States laws, including, without limitation, for the development, design, manufacture, proliferation, or production of nuclear, chemical, biological or any weapons of mass destruction. Further, Customer represents that it is not a national, resident, or under the control of the government of Cuba, Iran, Northern Sudan, North Korea, Syria, or any country to which the United States has prohibited export of the Software or Documentation and that it is not listed on the United States Department of Treasury lists of Specially Designated Nationals, Specially Designated Terrorists, Specially Designated Narcotic Traffickers, or on the United States Department of Commerce Table of Denial Orders. 

Customer acknowledges that an export license from the Bureau of Industry and Security is required to provide the Software or Documentation to any "government end-user" in any country that is not listed as a Supplement No. 3, Favorable Treatment Country, in accordance with 740.17(b)(2) of the Export Administration Regulations which identifies certain categories of encryption products that are "restricted" for purposes of License Exception ENC. Customer shall indemnify, hold harmless, and defend Infobyte, including the payment of all reasonable attorney’s fees and court costs, against any claims or losses related to Customer’s failure to conform to any and all of these requirements and obligations contained in Section 16.

17. Government Restricted Rights. This Section 17 applies to all acquisitions of the Software by or for the federal government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the federal government. The
Software was developed at private expense and is Commercial Computer Software, as defined in Section 12.212 of the Federal Acquisition Regulation (48 CFR 12.212 (October 1995)) and Sections 227.7202-1 and 227.7202-3 of the Defense Federal Acquisition Regulation Supplement (48 CFR 227.7202-1, 227.7202-3 (June 1995)). Accordingly, any use, duplication or disclosure by the Government or any of its authorized users is subject to restrictions as set forth in this standard license agreement for the Software. If for any reason, Sections 12.212, 227.7202-1 or 227.7202-3 are deemed not applicable, then the Government's rights to use, duplicate or disclose the Software are limited to "Restricted Rights" as defined in 48 CFR Section 52.227-19(c)(1) and (2) (June 1987), or DFARS 252.227-7014(a)(14) (June 1995), as applicable. If this Agreement fails to meet the government's needs or is inconsistent in any respect with Federal law, the government agrees to return the Software, unused, to Infobyte. Manufacturer is Infobyte LLC, 2699 S. Bayshore Dr #300, Miami, FL 33133.

18. Data Privacy. To the extent that Infobyte processes personal data about any living individual (“Data”) in the course of providing the Services, it
will do so only as a data processor acting on behalf of Customer (as data controller) and in accordance with the requirements of this Agreement. Infobyte will process the Data in accordance with Customer’s lawful instructions and will not (i) assume any responsibility for determining the purposes for which and the manner in which the Data is processed or (ii) process the Data for its own purposes (other than for aggregated, analytical purposes which the Customer hereby authorizes). Infobyte will have in place and maintain throughout the term of this Agreement appropriate technical and organizational measures to protect the Data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, and against all other unlawful forms of processing. In this Section, the terms “controller”, “processor” and “personal data” will bear the meanings given to them in European Union Data Protection Directive 95/46/EC. 

19. Publicity. Customer acknowledges that Infobyte may use Customer’s name and logo for the purposes of identifying Customer as a customer of Infobyte products and/or services, including in Infobyte’s quarterly press releases highlighting new customer engagements.

20. The Product is protected by copyright and other intellectual property laws and treaties. Infobyte LLC. or its suppliers own the title, copyright, and other intellectual property rights in the Product. The Product is licensed, not sold.

21. Infobyte LLC. reserves the right, at any time and from time to time, to update, revise, supplement, and otherwise modify this Agreement and to impose new or additional rules, policies, terms, or conditions on your use of the Service. Such updates, revisions, supplements, modifications, and additional rules, policies, terms, and conditions (collectively referred to in this Agreement as "Additional Terms") will be effective immediately and incorporated into this Agreement. Your continued use of the Faraday® Products following will be deemed to constitute your acceptance of any and all such Additional Terms. All Additional Terms are hereby incorporated into this Agreement by this reference.

22. Faraday is copyright © 2013-2016 of Infobyte LLC.  All rights reserved. Faraday® is a registered trademark of Infobyte LLC in the US, Europe and other countries. Faraday® and the Faraday® logo are registered trademarks of Infobyte LLC in the US, Europe and other countries. All other trademarks and service marks are the property of their respective owners.
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This license does not apply to the following components and any component which may not be included in the following file: 'doc/LIBRARY_LICENSE'