SD ELEMENTS END USER LICENSE AGREEMENT

(JULY 2017)

This End User License Agreement (this "Agreement") is a legal contract between you, as either an individual or an Entity (as defined below), and Security Compass Ltd., Infotek Solutions Inc. dba Security Compass, or its affiliates (collectively "Security Compass").

READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE OBTAINING A LICENSE KEY, OR OTHERWISE ACCESSING OR USING SD ELEMENTS, SECURITY COMPASS’ PROPRIETARY SOFTWARE AS A SERVICE, ACCOMPANIED BY THIS AGREEMENT (THE "SOFTWARE").

THIS SOFTWARE IS COPYRIGHTED AND IT IS LICENSED TO YOU UNDER THIS AGREEMENT, NOT SOLD TO YOU. BY OBTAINING A LICENSE KEY, OR OTHERWISE ACCESSING OR USING THIS SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, YOU UNDERSTAND IT, AND THAT YOU ACCEPT AND AGREE TO BE BOUND BY ITS TERMS.

IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF A COMPANY, ORGANIZATION, OR OTHER LEGAL ENTITY (AN "ENTITY"), YOU REPRESENT AND WARRANT THAT YOU HAVE FULL POWER AND AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS, AND REFERENCES TO "YOU" OR "YOUR" HEREIN REFER TO BOTH YOU, THE INDIVIDUAL END USER, AND THE ENTITY ON WHOSE BEHALF YOU ARE ACCEPTING THIS AGREEMENT.

THIS AGREEMENT, ALONG WITH THE SUPPLEMENTAL TERMS (AS DEFINED BELOW) REPRESENTS THE ENTIRE AGREEMENT BETWEEN YOU AND SECURITY COMPASS CONCERNING THE SOFTWARE, AND THIS AGREEMENT SUPERSEDES AND REPLACES ANY PRIOR PROPOSAL, REPRESENTATION, OR UNDERSTANDING YOU MAY HAVE HAD WITH SECURITY COMPASS RELATING TO THE SOFTWARE, WHETHER ORALLY OR IN WRITING.

IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU SHOULD CLICK THE "DISAGREE" OR SIMILAR BUTTON, AND IMMEDIATELY CEASE AND REFRAIN FROM ACCESSING OR USING THE SOFTWARE.

  1. Definitions.
    1. "Confidential Information" means information relating to or disclosed in the course of, or in connection with, this Agreement, which is, or should be reasonably understood to be, confidential or proprietary to the party disclosing such information (the "Disclosing Party"). "Confidential Information" includes, but is not limited to, the material terms of this Agreement, information about customers or subscribers, technical processes and formulas, source codes, product designs, sales, cost and other unpublished financial information, product and business plans, projections and marketing data. "Confidential Information" shall not include information (a) already lawfully known to or independently developed by the party receiving such information (the "Receiving Party") without use of the Disclosing Party’s Confidential Information, (b) disclosed in published materials, (c) generally known to the public without disclosure by the Receiving Party in breach of this Agreement; or (d) lawfully obtained from any third party not bound by a confidentiality agreement or other obligation of secrecy.
    2. "Documentation" means Security Compass user or technical manuals, training materials, specifications or other documentation applicable to the Software and made available to you.
    3. "Supplemental Terms" means any document(s) issued by Security Compass to you, including but not limited to an order form or an order confirmation, which specifies the Evaluation Period, License Limit and any applicable license fees.
  2. Software License.
    1. Rights Granted. Subject to the terms and conditions of this Agreement and the payment of all applicable license fees, Security Compass grants you a non-exclusive, non-assignable, non-sub-licensable, limited license to use the Software and the Documentation solely for evaluation purposes, or other limited, temporary use as authorized by Security Compass, and in accordance with the License Limit (as defined in Section 2.1 of Schedule A) and the Documentation (the "License"). Your right to use the Software begins on the date the Software is made available to you, and continues until the end of the term specified by Security Compass in the Supplemental Terms or otherwise in writing, unless otherwise terminated in accordance with this Agreement (the "Evaluation Period"). Security Compass reserves the right to terminate your access to the Software at any time. Any source code provided to you by Security Compass is subject to the terms of this Agreement. Any access to the Software (i) for the benefit of any other person or entity, or (ii) by any person, business, corporation, government organization or any other entity other than the users authorized by Security Compass is strictly forbidden and is a violation of this Agreement.
    2. Usage. The License shall be subject to Security Compass’ per-application usage and pricing terms and conditions as set out in Schedule A to this Agreement.
  3. Intellectual Property Rights. Security Compass or its licensors retain ownership of all intellectual property rights in and to the Software, including any modifications, translations, or derivatives thereof, even if unauthorized, and all applicable rights in patents, copyrights, trade secrets, and trademarks. The Software is valuable, proprietary, and unique, and you agree to be bound by and observe the proprietary nature thereof. The Software contains material that is protected by patent, copyright, and trade secret laws. Your rights to use the Software are limited to those expressly granted by this Agreement. All rights not granted to you in this Agreement are reserved to Security Compass. No ownership of the Software passes to you. Security Compass may make changes to the Software at any time without notice. You may not remove any proprietary notice of Security Compass or any third party from the Software.
  4. Protection and Restrictions.
    1. You agree to take all reasonable steps to safeguard access to the Software to ensure that no unauthorized person has access thereto and that no unauthorized copy, publication, disclosure, or distribution, in whole or in part, in any form is made.
    2. You acknowledge that the Software contains valuable, confidential information and trade secrets and that unauthorized use and/or copying is harmful to Security Compass. You also understand and agree that the copying or modifying of the Documentation provided with or as part of the Software is strictly prohibited. Any third-party software included in the Software may not be used independently from the Software.
    3. You will not, and will not allow a third party to, directly or indirectly: sell, sublicense, transfer, assign, publish, display, disclose, rent, lease, timeshare, modify, loan, distribute, market, commercialize, or create derivative works based on the Software or any part thereof, incorporate the Software into or with other products, or use the Software for timesharing or service bureau purposes.
    4. You will not reverse engineer, decompile, translate, adapt, or disassemble the Software, nor will you attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Software by any means whatsoever (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions, and then only with prior written notice to Security Compass).
    5. You represent and warrant that you will comply with all laws, rules and regulations which apply to your use of the Software.
    6. Security Compass may freely use its ideas, concepts, know-how, and techniques that it develops during the course of providing the Software under this Agreement, subject to Security Compass’ confidentiality obligations set forth herein, and provided that such ideas, concepts, know-how, or techniques do not violate any of your patent, trademark, copyright, or trade secret right.
  5. Software as a Service. The Software is hosted by Security Compass ("Software as a Service" or "Service").
    1. You agree to: (1) protect your password, applicable devices and account from unauthorized use; and (2) be solely responsible for creating backup files of all data accessed by or use through the Service. You agree that Security Compass is not liable for any damages relating to lost, corrupted or damaged data.
    2. You agree not to: (1) use the Service in a way that violates any applicable laws and regulations; (2) distribute viruses or other harmful or malicious computer code via the Service; (3) engage in any conduct that disrupts or impedes the Service; (4) engage in "screen scraping", "data mining", "database scraping" or any other activity with the purpose of obtaining unauthorized lists of users or other unauthorized information from the Service or that uses web "bots" or similar data gathering or extraction methods.
    3. Without restricting any other rights of Security Compass under this Agreement, Security Compass can suspend your access to the Service if, in its sole discretion, Security Compass believes: (1) there is risk to the security or privacy of your account; (2) there is a threat to the security or integrity of Security Compass’ network or the Service; (3) suspension is needed to protect the rights, property or safety of Security Compass, its users or the public or is required by law.
  6. No Warranty. The Software is licensed "AS-IS" without maintenance, or warranty of any kind, expressed or implied. Security Compass expressly disclaims all warranties, conditions or other terms, whether express, implied or statutory, including without limitation, warranties, conditions or other terms regarding merchantability, fitness for a particular purpose, design, condition, capacity, performance, title, and non-infringement. Security Compass does not warrant that the Software will operate uninterrupted or error-free or that all errors will be corrected. In addition, Security Compass does not warrant that the Software or any equipment, system or network on which the Software is used will be free of vulnerability to intrusion or attack. Security Compass does not assume any liability arising from any use of the Software.
  7. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL SECURITY COMPASS, ITS AFFILIATES, ITS LICENSORS OR RESELLERS BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, ARISING OUT OF OR RELATED TO THIS AGREEMENT INCLUDING, BUT NOT LIMITED TO CLAIMS FOR INACCURACY, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, GOODWILL, OPPORTUNITY, REVENUE, PROFITS, OR USE OF THE PRODUCTS, INTERRUPTION IN USE OR AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS OR OTHER BUSINESS LOSS, PRIVACY, NEGLIGENCE, BREACH OF CONTRACT, TORT OR OTHERWISE AND THIRD PARTY CLAIMS, EVEN IF SECURITY COMPASS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL SECURITY COMPASS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, BASED ON ANY LEGAL THEORY, INCLUDING BUT NOT LIMITED TO CONTRACT, TORT, BREACH OF WARRANTY INFRINGEMENT OR OTHERWISE, EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY YOU TO SECURITY COMPASS FOR THE LICENSE. YOU AND SECURITY COMPASS AGREE THAT THE LIMITATIONS OF THIS SECTION ARE ESSENTIAL AND THAT SECURITY COMPASS WOULD NOT PERMIT YOU TO USE THE SOFTWARE ABSENT THE TERMS OF THIS SECTION. THIS SECTION SHALL SURVIVE AND APPLY EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT SHALL BE FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
  8. Time Limitation on Claims. Except for actions for nonpayment or breach of confidentiality or proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by you or Security Compass more than one (1) year after the cause of action has accrued.
  9. Audit. Your usage of the Software may be remotely audited by Security Compass at any time to ensure compliance with the terms of this Agreement.
  10. Term and Termination. his Agreement shall remain effective until terminated or until the expiration of the Evaluation Period. Security Compass reserves the right to immediately terminate this Agreement at any time in its sole discretion.
  11. Confidentiality. The Receiving Party hereby acknowledges that as a result of the performance of its obligations under this Agreement, it will obtain access to Confidential Information of the Disclosing Party. The Receiving Party shall not disclose any of the Disclosing Party’s Confidential Information or use such Confidential Information for any purpose other than to perform its obligations or exercise its rights under this Agreement. The Receiving Party shall use the same measures to protect the Confidential Information of the Disclosing Party as it uses with respect to its own confidential information of like importance, but in no event shall it use less than reasonable care, including, instructing its employees, vendors, agents, consultants and independent contractors of the foregoing and requiring them to be bound by appropriate confidentiality agreements. If the Receiving Party is required by law to disclose Confidential Information of the Disclosing Party, the Receiving Party shall use best efforts to give the Disclosing Party reasonable advance notice of such required disclosure where legally permissible, so that the Disclosing Party may seek a protective order or another appropriate remedy. If the Disclosing Party waives the Receiving Party’s compliance with this Agreement or fails to obtain a protective order or other appropriate remedy, the Receiving Party will disclose only that portion of the Confidential Information that is legally required to be disclosed. The Receiving Party agrees to return to the Disclosing Party, or destroy and certify in writing that it has destroyed, all material embodying Confidential Information of the Disclosing Party (in any form or medium and including, without limitation, all summaries, copies and excerpts of Confidential Information) at any such time as the Disclosing Party may so request.
  12. Export Compliance. Export laws and regulations of the United States, Canada and any other relevant local export laws and regulations apply to the Software. You agree that such export control laws govern your use of the Software (including technical data), and you agree to comply with all such export laws and regulations (including "deemed export" and "deemed re-export" regulations). You further agree that no data, information, software programs and/or materials resulting from the Software (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.
  13. Assignment. You will not assign or transfer, by operation of law or otherwise, any of your rights under this Agreement to any third party without Security Compass’ prior written consent. Any attempted assignment or transfer in violation of the foregoing will be void.
  14. Governing Law.
    1. United States. If you acquired the Software from Infotek Solutions Inc. dba Security Compass, this Agreement will be governed by the laws of the state of New Jersey, without regard to its conflicts of law provisions. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Each Party hereby consents to the exclusive jurisdiction and venue of the courts located in New Jersey, with regard to any legal action relating to this Agreement.
    2. Canada. If you acquired the Software from Security Compass Ltd., this Agreement will be governed by the laws of the province of Ontario, without regard to its conflicts of law provisions. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Each Party hereby consents to the jurisdiction and venue of the federal and provincial courts located in Toronto, Ontario, with regard to any legal action relating to this Agreement.
  15. Statistical Information. Security Compass may compile statistical information related to the performance of the Software, and may make such information publicly available, provided that such information does not incorporate your data and/or identify your Confidential Information or include your company’s name. Security Compass retains all intellectual property rights in such information.
  16. Survival. Notwithstanding anything to the contrary in this Agreement, provisions which by their nature and intent should survive expiration or termination of the Agreement, including, but not limited to sections 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15, 17 and 18 will survive the expiration or termination of this Agreement.
  17. Severability. If any term of this Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with a term consistent with the purpose and intent of this Agreement.
  18. Modification. Security Compass reserves the right to supplement, amend, or modify this Agreement at any time.

SCHEDULE A
PER-APPLICATION PRICING TERMS AND CONDITIONS

Additional or alternate terms and conditions that apply to SD Elements are provided below and form part of the Agreement.

  1. Definitions.
    1. "Active Application(s)" shall mean an Application being developed within the Software, which has not been archived, and for which at least one (1) Project has been created.
    2. "Application" shall have the meaning set out in Section 3.1 below.
    3. "Archived Application(s)" shall mean an Active Application which has been moved to an archive within the Software, whereupon it shall cease to be an Active Application.
    4. "Project" shall mean an instance, component or release of your software code base(s) being developed/managed within an Application.
    5. "Tier" shall mean the catalogue of associated usage levels with applicable pricing, as specified by Security Compass in the Supplemental Terms or otherwise in writing.
    6. All Capitalized terms not defined in this Schedule shall have the meanings assigned to such terms in the Agreement.
  2. License Metric
    1. The License granted to the Software shall entitle you to use the Software in the development of a maximum number of Applications as authorized by Security Compass in the Supplemental Terms or otherwise in writing (hereinafter the "License Limit").
    2. Active Applications shall apply towards the usage of the License Limit. Archiving an Active Application shall not free up the license for the Archived Application during the Evaluation Period.
  3. Application
    1. For the purpose of the Agreement, an "Application" is a set of software instructions (source code, bytecode), which compile and/or execute in a single run time environment within the Software, subject to any exception stated below:
      1. You may create an unlimited number of new releases as Projects within an Application. Such new releases shall not count as additional usage against the License Limit.
      2. Where you use the Software in the development of a web application, the browser space code and server side code may be considered different parts of the same Application where the technical profile of each code base is intended to produce a single list of requirements within the Software.
      3. Technologies that operate as independent Applications shall be considered separate Applications. This includes but is not limited to Java applets and browser plugins. The development of the same Application for different mobile operating systems shall be considered to be separate Applications, whereby each such Application shall apply as usage against the License Limit.
      4. Server side applications which include components that run in a different run time space may be considered the same Application where (i) a similar technology stack is utilized; and (ii) a single list of requirements is intended for all components.
      5. Where the Software is used to develop micro services architecture, all services shall be considered to be a single application for the purpose of licensing where (i) all services use a similar technology stack; and (ii) a single list of requirements is intended for all services.
  4. Usage reporting obligations and auditing
    1. The Software is licensed using Software as a Service deployment, and Security Compass reserves the right to audit your Application usage data at any time.
  5. Order of Precedence.
    1. In the event of any inconsistencies between the Agreement, This Schedule, and the Supplemental Terms, the order of precedence shall be as follows:
      1. The Supplemental Terms
      2. This Schedule A
      3. The Agreement.

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