End-User License Agreement (EULA)

This is a legal agreement between any User of Lynx Products, including without limitation the undersigned user (“You”), and Lynx for the Product(s) on the Order to which this EULA relates.  If You do not agree to the terms of this License, promptly return the unused Product(s) to the place from which You obtained it.  Except as may be modified by a separate printed or signed license agreement between you and Lynx, Your rights and obligations with respect to the Use of Lynx’s Products are as follows:

  • 1. DEFINITIONS
    • 1.1 “Client Software” means a software Product that runs on a Node.
    • 1.2 “Documentation” means all published written materials relating to the operation, use and installation of the Product (or updates thereto) including, but not limited to, the user documentation listed below and any other help screens, user manuals, release notes and online help files. Documentation covered under this Agreement shall include but not be limited to the user documentation for the following Lynx Products:
      • Lynx Risk Manager®
    • 1.3 “Error” means a significant failure of the Product to operate in accordance with the Documentation.
    • 1.4 “Hardware” means any physical computer or computer part or component product supplied by Lynx.
    • 1.5 “License Term” means the duration of the software license term for the Product as set forth in the Order (typically either a 12-, 24- or 36-month “Subscription Term” for a subscription Product license, or, if designated as “perpetual” in the Order, a License Term that is perpetual in length).
    • 1.6 “Maintenance” means Product updates, upgrades, Error fixes and other enhancements, and content made available by Lynx to its end users for customers with Subscription Term licenses or that have purchased Maintenance services, excluding those that Lynx offers for purchase as an upgrade or separate Product or feature offering.  Maintenance also includes Support, as defined below. Maintenance is non-transferable and may not be assigned by You without Lynx’s express prior written consent, and any attempt to do so without permission shall be void.
    • 1.7 “Node” means an individual physical or virtual computer device that interacts with Your computer network or that accesses or stores corporate data. By way of example only, Nodes can be computers, workstations, terminals, servers, mobile or cellular phones, smart phones, tablets, or various other network appliances, such as routers, switches, and hubs. Notwithstanding the foregoing, (a) a “Subject” as defined in the Documentation for Lynx Risk Manager software Product is deemed a “Node” with respect to such software for purposes of this EULA; and (b) with respect to thin client Products, Services and solutions, the required Node count is equivalent to the number of users with access to the service.
    • 1.8 “Open Source Component” means a component of a Product that is subject to so-called “open source” software licenses, which include without limitation any software licenses approved as open source licenses by the Open Source Initiative or any substantially similar licenses, including without limitation any license that, as a condition of distribution of the software licensed under such license, requires a distributor to make the Open Source Component available to its end users in source code format.
    • 1.9 “Order” means any ordering document (such as a counter-signed proposal) for the purchase of any Lynx Products and/or Services that incorporates the terms of this document by reference, including without limitation Statements of Work (or SOWs) for some Services.
    • 1.10 “Product” means (i) the software programs described in the Order and any updates, upgrades, fixes and other enhancements provided to You by Lynx, and (ii) the associated program Documentation. The term Product, as used in this License, does not mean Third Party Content or Open Source Components, subject to the provisions in Article 7.
    • 1.11 “Server” means a physical or virtual computer system that provides services to Nodes.
    • 1.12 “Server Software” means a software Product that provides services to each licensed Node based on information received from the Client Software.
    • 1.13 “Services” means any installation, implementation, training, or other consulting services (collectively, “Professional Services”), as well as any Maintenance and Support, that are provided to You by Lynx under this License. “Services” does not include, and this EULA does not govern, any custom development work by Lynx or resulting work product; any such work must be addressed in a separate written agreement.
    • 1.14 “Support” means Product support provided by Lynx at the level, if any, that You have purchased, as described on Lynx’s support website (currently located at LynxGRC.com/support-terms). Standard-level Support is included with all Maintenance purchases and with all Subscription Term Product licenses. Support is non-transferable and may not be assigned by You without Lynx’s express prior written consent, and any attempt to do so without permission shall be void.
    • 1.15 “Third Party Content” means the third party software content, including without limitation updates, drivers and patches, that, if applicable to Your purchases, Lynx consolidates, organizes and makes accessible to You through Your Use of the Product, subject to the provisions in Article 7.
    • 1.16 “Use” means the loading, utilization, storage or display of the Product by You or one of Your authorized Users.
    • 1.17 “User” means all end users of the Product(s) licensed to You under this EULA.
    • 1.18 “LCP” means a Licensed Content Pack, which is a controls framework that is under a separate copyright and license agreement with the authoring vendor.
  • 2. LICENSES
    • 2.1 License Grants. Lynx hereby grants You a non-exclusive, non-transferable (except as set forth in Section 9.1 below) License to the Product(s), without right of sub-license, to Use the object code version of the Product, solely for Your internal business purposes relating to endpoint protection and policy compliance reporting for Your software and computer systems, for the duration of the License Term, and solely as described in the applicable restrictions referenced in Section 3 below. You may Use any third-party Product modules or products supplied by Lynx solely with the Product. Your license is subject to and conditioned upon the quantities, durations, applicable configurations and additional limitations set forth in the Order and in Section 3 below, the terms in Section 3 and 5 of this Agreement, and any additional terms, conditions or schedules referenced by the Order or the Product installation. In the event Lynx discovers that You are Using a Product that You have not paid for, in excess of the agreed usage quantities or durations, or in a manner not licensed to You herein, Lynx reserves the right to charge You for such Use, at then current prices, and You agree to pay in full for Your past, present and continued Use of all Products.
    • 2.2 Renewal. Each Maintenance contract, Premium Support contract and Subscription Term Product license will automatically renew for consecutive one-year periods at Lynx’s then current list price unless one party hereto provides the other party with written notice of non-renewal at least 30 days prior to the expiration of a given Maintenance period, Premium Support period or Subscription Term or unless otherwise agreed to by the parties in writing.  If You allow Maintenance or any subscription Services to lapse, You may be required to pay annual fees for all such missed Services, retroactive to the date of the lapse, in order to reinstate such Services.
    • 2.3 Your Responsibilities. You acknowledge that You have read the Documentation for the Product prior to installing the Product and agreeing to this License. You shall ensure that: (i) the Product is Used in a manner consistent with the Documentation; (ii) the Product is properly installed and configured (if You have not retained Lynx to install the Product); (iii) any integrating programs not provided by Lynx, as well as all data communication links, are properly installed; (iv) adequate back-up and disaster recovery plans are established and maintained with the frequency and reliability specific to Your needs and requirements; and (v) adequate physical and network security systems are established and maintained. You assume full responsibility for the selection of the Product to achieve your intended results, and for the installation, use and results obtained from the Product. You also assume the entire risk as it applies to the quality and performance of the Product, including without limitation the risk that a malicious attack could circumvent the protection that the Product is designed to provide. Should the Product prove defective, Lynx will honor all obligations affirmatively assumed by Lynx herein; otherwise, You (and not Lynx) assume the entire cost of all necessary servicing, repair or correction. You shall abide by Lynx’s Privacy Policy (currently located at LynxGRC.com/privacy-policy).
    • 2.4 Audit Rights. You shall keep and maintain complete, accurate and detailed records regarding Your obligations under this License, including the number of Nodes or Servers on which the Product is loaded or resides or which the Product is used to protect. You shall maintain such records throughout the applicable License Term (including any renewal) and for 12 months thereafter. If requested, You shall certify in writing that You are using the Product for the permitted number of Nodes or Servers at site(s) listed in the applicable Order. Lynx’s internal or external auditors shall have the right, at Lynx’s expense, to inspect and audit Your records for the purpose of verifying compliance with the terms and conditions of this License including the amounts due hereunder, the use of the Product, and verification of the number of Nodes or Servers. Lynx shall not perform an audit more than once annually, and will send You a written notice of intent to audit no less than 30 days prior to the audit. The audit will be conducted during regular business hours at times convenient to You. If such audit reveals a discrepancy between the amounts owed and the fees actually paid, You will be invoiced or credited for any amounts owed by You, as applicable. In addition, if the audit determines that You have underpaid by more than 10% through no fault of Lynx, You shall pay to Lynx a penalty in the amount of 10% of such underpaid amount and reimburse Lynx for its actual audit costs.
  • 3. License Restrictions
    • 3.1 Types of Licenses. You shall abide by the following applicable restrictions, based on the license type indicated in the Order.
      • 3.1.1 Evaluation License. If an evaluation license (or “eval”) is indicated on the Order, this License is limited to the evaluation version of the Product, in object code form, and for non-transferrable internal non-commercial evaluation and trial purposes only. The License Term of an evaluation license begins upon downloading and ends 30 days thereafter or extends for such longer period as Lynx has agreed to in the Order.  Except as stated in this paragraph, and in Section 6.10, all other terms and conditions of this License shall apply to evaluation licenses of the Product.
      • 3.1.2 Client/Server License. If a per-Node license (i.e., a license for Client Software) or per-Server license (i.e., a license for Server Software) is indicated on the Order, You may make and use as many copies of the applicable version of the Product(s) as the number of Nodes or Servers, as applicable, indicated on the Order.
      • 3.1.3 Enterprise License. If an enterprise license is indicated on the Order, You may use the Product(s) solely for your own computing needs, and not on behalf of any other entity or affiliate, unless indicated in the Order.
      • 3.1.4 Default License Terms. If no particular type of license is indicated in the Order, the number of licenses will be deemed a per-Node license.  If a license is not described as an Enterprise License in the Order, the license will be deemed a per-Node license. If no number of licenses is indicated in the Order for a per-Node license or per-Server license, the number of licenses will be determined by dividing the License Fee by Lynx’s then-standard per-Node or per-Server, as applicable, commercial pricing for the applicable Product.  If the License Term is not stated to be perpetual in the Order and no Subscription Term length is indicated, the License Term will be deemed a one-year Subscription Term.
    • 3.2 Limitations. All rights relating to the Product that are not expressly granted to You in this EULA or in an Order are expressly reserved to Lynx. The Product is owned by Lynx, and is protected by United States, European Union and other international intellectual property (including copyright) laws. You do not own, and Lynx retains title to, any copies of the Products. You shall not, and shall not permit any third party to, Use, copy, modify, display, rent, lease, loan, transfer, distribute, download, merge, make any translation or derivative work or otherwise deal with the Product, except as expressly provided in this License. You may not remove any copyright, patent or other proprietary rights notices from any copy of the Product or any copy of the written materials, if any, accompanying the Product. Except to the extent that such a restriction is unenforceable under applicable law, You shall not cause or permit the disassembly, reverse compilation or other decoding of the Product, or otherwise attempt to obtain, derive or modify the source code or architecture of the Product. You shall not, and shall not permit any third party to, publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Product.
    • 3.3 Service Provider Use of the Product. You may not, and shall not permit any third party to, Use the Product to provide directly resulting business services to third parties on a “service bureau” or similar basis except to the extent the Order expressly provides for and defines a service provider license for the Product.
    • 3.4 Archival Copy. You may make a reasonable number of archival copies of the machine-readable portion of the Product for backup purposes only, provided that You reproduce on such archival copies all copyright, patent and other proprietary rights notices included on the originals of the Product. Such archival copies shall be used by You solely in support of Your use of the Product.
    • 3.5 Licensed Content Packs. The control frameworks under a LCP are not owned or maintained Lynx in any way. Lynx products ability to function with LCPs is considered a technological capability, and not an authorization to use a LCP unless specifically purchased, and licensed by the authoring vendor.
  • 4. DELIVERY, PROFESSIONAL SERVICES, MAINTENANCE AND SUPPORT
    • 4.1 Delivery. Promptly following execution of Your Order, Lynx will deliver to You the necessary password and information to enable You to download from Lynx’s website the Product and Documentation.
    • 4.2 Professional Services. To the extent Professional Services are included in the Order, Lynx shall assist You in the installation and implementation of the Product, provide online or remote training materials or services to Your employees or consultants in the Use of the Product, or provide other specified Professional Services, in each case pursuant to the provisions set forth in the Order and in exchange for the payments described in the Order. Descriptions of Lynx’s current Professional Services offerings can be found on its website, most notably LynxGRC.com/solutions. Any development of new software shall be governed by a separate professional services agreement, rather than the Order or this License. Lynx hereby grants You a license to use all deliverables resulting from Professional Services, subject to the terms of this License, and you hereby agree that Lynx retains sole and exclusive right, title and interest in and to any such deliverables.
      • 4.2.1 Postponing and Rescheduling Professional Services. You may postpone or reschedule part or all of Your purchased, scheduled Professional Services 10 or more business days before the date for which such Professional Services are scheduled at no additional expense. If Lynx receives Your notice of postponement or rescheduling less than 10 business days before the date for which such Professional Services are scheduled, You shall reimburse Lynx for all expenses reasonably incurred, which Lynx may debit against any amounts You have prepaid for such Professional Services if You do not timely pay such amounts.
      • 4.2.2 Unused Professional Services. In the event You do not use some or all of Your prepaid Professional Services, You may use the associated prepaid amount toward any other purchase made directly from Lynx. Any prepaid amount for Professional Services that remains unused as of 12 months after your purchase thereof (i.e., the effective date on the applicable Order) automatically will expire, and Lynx shall have no obligation to You with respect to such expired prepaid amounts.
      • 4.2.3 Reimbursable Travel and Living Expenses. Unless otherwise noted on the applicable Order, travel and living expenses (“T&E”) are not included in the total price shown on the Order; if T&E is indicated as reimbursable on the Order, it will be billed separately and in addition to the fees for Services set forth on such Order. In such event, You shall reimburse Lynx for all T&E incurred pursuant to Lynx’s standard policies related to any Services performed under such Order. Lynx will bill T&E on a monthly basis.
      • 4.2.4. Services Acceptance Process. Upon completion of the Services, Lynx will request Your acceptance of the Services:
        1. If You provide Lynx written notice (email acceptable) that You accept the Services, then the associated fees shall become due pursuant to subsection (d) below.
        2. If You find the Services have not been properly completed, You must promptly provide Lynx a written notice (email acceptable) stating the basis for Your objection. Lynx will review Your objection and, if Lynx agrees with Your assessment, will correct its performance and ask again for Your acceptance. If Lynx reasonably believes the Services have been properly completed despite Your objection, then the associated fees shall become due pursuant to subsection (d) below.
        3. If You neither accept nor object to the Services in writing (email acceptable) within seven days after Lynx’s request for acceptance, You agree that You will be deemed to have accepted the Services as of that date, and the associated fees shall become due pursuant to subsection (d) below.
        4. With respect to amounts becoming due under the terms of this Section: (i) if applicable, Lynx will apply the associated amounts that You have pre-paid; or (ii) if You have previously been invoiced, such invoice shall become due; or (iii) Lynx promptly will invoice You for the associated, fees, which will be payable in 30 days or, if applicable, in accordance with your agreed payment terms,
    • 4.3 Maintenance and Support. Lynx shall provide You with Maintenance and Support (which is a component of all Maintenance purchases and all Subscription Term Product licenses, and may be upgraded to Premium Support at additional cost) as specified in the Order. Otherwise, Lynx is under no obligation to provide any updates, upgrades, supplements or corrections, technical support, bug fixes, replacements or conversions of the Product, or to otherwise maintain the Product. Details concerning Support are provided on the support section of Lynx’s website, currently located at LynxGRC.com/support-terms. In the event You do not purchase Support and Maintenance services from Lynx initially and do not maintain Support and Maintenance services consistently thereafter, you may be prohibited from purchasing Support and/or Maintenance services from Lynx at a later date, or Lynx may require You to bring Your Support and Maintenance obligations current prior to providing any such services to You, at the sole discretion of Lynx.
    • 4.4 Product Support Lifecycle Policy. Each Lynx Product is subject to and offered strictly pursuant to the terms of the Lynx Product Support Lifecycle Policy (the “Lifecycle Policy”), currently located at LynxGRC.com/lrm/Lifecycle-Policy. Lynx may revise the Lifecycle Policy from time to time at its sole discretion by posting an updated Lifecycle Policy online.
  • 5. PAYMENTS AND TAXES
    • 5.1 Fees; Suspension of Access for Nonpayment. The fees for Product licenses and Services are set forth in the Order. Unless otherwise provided in the Order, fees and any other amounts payable under this License shall be paid in U.S. Dollars (or other currency as defined in the Order) 30 days from Your receipt of Lynx’s invoice. Late payments shall be subject to a late fee of 1.5% per month, or the maximum charge permitted by law, whichever is less. In addition to charging late fees, Lynx reserves the right to suspend Your access to the Product and/or Services while any fee is past due and remains unpaid. Lynx will not be liable to You or any third parties due to exercise of this right while Your payment remains past due. All Orders are non-cancellable and all fees paid by You are non-refundable unless otherwise expressly stated in this License or in the Order.
    • 5.2 Taxes. You shall pay all, or if Lynx is legally obligated to pay then you shall reimburse Lynx for, all personal property, sales, use, value-added, withholding and similar taxes (other than taxes on Lynx’s net income) arising from the transactions described in this License. Where Your purchase of Products or Services is exempt from sales or other taxes, You shall provide Lynx with the appropriate exemption certificate.
  • 6. WARRANTIES, LIABILITY LIMITATIONS AND INDEMNIFICATION
    • 6.1 Limited Product Warranties. Lynx warrants to You that the Product will perform in all material respects as set forth in the Documentation. The foregoing warranty will commence upon delivery of the Product, or commencement of the license as indicated in the Order.  Such warranty will continue (a) for the duration of the Subscription Term, where the License Term is based on a Subscription Term, or (b) for a period of 90 days, if the License Term is perpetual.  Lynx does not warrant that the Product will operate in combination with other software products selected by You, that the Product will operate uninterrupted or free of non-material Errors, that its Products identify all known viruses and malicious code, that its Products will not occasionally erroneously report a virus in a title not infected by that virus, nor that any Product will detect or protect against all possible threats. As Lynx’s sole obligation for breach of the foregoing warranty, Lynx will modify or replace the Product, at no additional charge, to correct any reproducible Error that causes the Product not to perform in all material respects as set forth in the Documentation, provided that You report the malfunction to Lynx during the applicable warranty period. With respect only to material Errors that occur and that You report to Lynx during the first 90 days of the warranty period described above, in the event that Lynx is unable after reasonable efforts to correct any such material Error, You may at Your option terminate this License with respect to the non-conforming Product and, upon return of the Product to Lynx, Lynx shall provide to You a refund of the unused fees paid by You for the Product, prorated over the current Subscription Term where the License Term is based on a Subscription Term, or over a presumed five-year useful life of the Product where the License Term is perpetual. Lynx further warrants that the Product as provided by Lynx will have been screened using customary procedures in the industry for malicious code, programs, or other internal components (e.g., computer worms) and for viruses; Lynx will promptly modify or replace, at no additional charge, any portions of the Product that fail any of these warranties. The Product is not fault-tolerant and is not designed or intended for use in hazardous environments or high risk applications requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the Product could lead directly to death, personal injury, or severe physical, property or environmental damage (“High Risk Activities”). Lynx and its suppliers specifically disclaim any express or implied warranty of fitness for High Risk Activities.
    • 6.2 Limited Services Warranties. Lynx warrants that all Services provided hereunder will be performed in a workmanlike manner, in conformity with the professional standards for comparable services in the industry. In the event of breach of the foregoing warranty, Lynx will re-perform the deficient Services and correct the breach at no additional cost to You.
    • 6.3 Limited Hardware Warranty. Lynx warrants to You that for one year from the date of shipment to You of any Hardware, the Hardware will be free from defects in material and workmanship under normal use and will substantially conform to its specifications.  Any software Product accompanying the Hardware is warranted as set forth elsewhere in this EULA. If, under normal and proper use, a defect or non-conformity appears in warranted Hardware during the applicable warranty period and You promptly notify Lynx in writing of such defect or non-conformance and follow Lynx’s instructions regarding return of such Hardware, then Lynx will, at its option, either (a) repair, replace or correct the same in accordance with Lynx’s maintenance and support services policies or (b) provide a refund of the purchase price against return of the Hardware. This paragraph sets forth Your sole remedies and Lynx’s entire liability for breach of warranties stated in this Limited Hardware Warranty section. No written or oral statement made about any Hardware by an employee or agent of Lynx will be effective to extend or change the warranty for the Hardware. The Hardware is not fault-tolerant and is not designed, manufactured or intended for use or resale as online control equipment in hazardous environments or high risk applications regarding fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the Hardware could lead directly to death, personal injury, or severe physical, property or environmental damage (“High Risk Activities“). Lynx and its suppliers specifically disclaim any express or implied warranty of fitness for High Risk Activities.
    • 6.4 Conditions to Limited Warranties.The limited warranties in Section 6.1 are conditioned upon Your installation and Use of the Product in accordance with the terms of the Documentation, and shall not apply to the extent that an Error occurs because of and would not have occurred but for: (i) modifications or additions made to the Product by a party other than Lynx or its agents; (ii) Your failure to implement enhancements provided by Lynx to You; or (iii) Use of the Product in connection with any operating system, equipment or devices not meeting the minimum requirements set forth in the Documentation. The Product is complex computer software. Performance of the Product may vary depending upon hardware configuration and interactions with other software. You acknowledge that the Product as delivered will utilize Lynx standard/default settings and that it is Your sole responsibility to configure the Product to satisfy Your specific needs and requirements.  You acknowledge that bugs may arise or crashes may occur when the Product is used in your particular computer or in conjunction with other software. You therefore accept the responsibility of satisfying yourself that the Product is suitable for use on your computer and with your other software. This includes reasonable testing of the Product on your computer prior to any mission-critical use of your computer. You are responsible for the use of the Product by others. You accept responsibility for any losses and/or damages and costs arising from any incompatibility between the Product or updates thereof and any third-party software that You have installed on the same computer or network, as well as any other problems that may arise due to the interaction between or among programs, or for coinciding code strings. With respect to antivirus Products or components licensed from Lynx, You know and accept that due to the modifications that viruses cause in files they infect, it is possible that the disinfection process could produce unforeseen changes to these files. To the extent any warranties may arise by operation of law, Lynx disclaims all warranties of any kind if the Product was altered or repackaged in any way by any party other than Lynx. Lynx shall not be liable for the accuracy of any information provided by third-party technical support personnel, or any damages caused, either directly or indirectly, by acts taken or omissions made by You or any third-party as a result of such technical support.
    • 6.5 Disclaimer of Warranties. EXCEPT FOR THE LIMITED WARRANTIES DESCRIBED IN SECTIONS 6.1 AND 6.2, LYNX DISCLAIMS, ON ITS OWN BEHALF AND THAT OF ITS LICENSORS, ALL OTHER WARRANTIES CONCERNING THE PRODUCT AND SERVICES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY THAT MIGHT OTHERWISE ARISE PURSUANT TO THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT. LYNX DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE.
    • 6.6 Exclusive Remedies. YOUR REMEDIES AND LYNX’S LIABILITY UNDER THIS LICENSE ARE LIMITED TO THE REMEDIES AND LIABILITIES SET FORTH IN THIS SECTION 6. IF, NOTWITHSTANDING THE ABOVE, YOU ARE ENTITLED TO RECOVER DAMAGES FROM LYNX FOR ANY REASON, THEN THOSE DAMAGES SHALL BE LIMITED BY THE TERMS OF SECTION 6.7 BELOW.
    • 6.7 Limitation of Liability. EXCEPT FOR LIABILITY ARISING OUT OF ONE PARTY’S MISUSE OR MISAPPROPRIATION OF THE OTHER PARTY’S CONFIDENTIAL INFORMATION OR INTELLECTUAL PROPERTY:  (A) NEITHER PARTY SHALL UNDER ANY CIRCUMSTANCES BE LIABLE TO ANY PERSON OR ENTITY FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION COST OF COVER OR DAMAGES FOR LOSS OF GOODWILL, BUSINESS INTERRUPTION, LOST PROFITS, LOST DATA OR COMPUTER HARDWARE OR PRODUCT DAMAGE, FAILURE OR MALFUNCTION, WHETHER OR NOT SUCH PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER OR NOT ANY EXCLUSIVE REMEDIES HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSES; AND (B) NEITHER PARTY’S AGGREGATE LIABILITY UNDER THIS LICENSE SHALL EXCEED THE PRICE ACTUALLY PAID BY YOU IN REGARD TO THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST DATE ON WHICH SUCH CLAIM ARISES FOR THE SOFTWARE OR SERVICES THAT GAVE RISE TO THE CLAIM, WHETHER OR NOT YOUR EXCLUSIVE REMEDIES HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSES. LYNX SHALL NOT BE LIABLE FOR ANY DAMAGE TO YOUR DATA. YOU SHALL BE RESPONSIBLE FOR MAKING BACKUPS OF YOUR DATA. THESE LIMITS ALSO APPLY TO LYNX’S SUPPLIERS.
    • 6.8 Indemnification for Infringement. Lynx agrees to either defend or settle, at Lynx’s expense and discretion, any claim against You that Your authorized Use of the Product or Documentation under this License infringes or misappropriates any U.S. patent, copyright, or trade secret, and to indemnify and hold You harmless from any settlement or final judgment against You related to such infringement claim. If, in Lynx’s opinion, the Product is likely to become or does become the subject of such a claim of infringement or misappropriation of a patent, copyright, or trade secret, Lynx, at its election, may either: (i) promptly replace the Product with a substantially compatible and functionally equivalent non-infringing software product; (ii) promptly modify the Product to make it non-infringing and substantially compatible and functionally equivalent; (iii) promptly procure a right for You to continue using the Product; or (iv) if none of the first three options is commercially feasible in Lynx’s sole discretion, refund (x) with respect to Subscription Term-licensed Products, the unused portion (on a pro rata basis) of the fees paid by You with respect to the then current Subscription Term, or (y) with respect to perpetually licensed Products, a pro rata portion of the Product license fees paid by You, based on a presumed five-year useful life of the Product; and the license for such Product shall be terminated. If as a result of termination of a Product license under the prior sentence You are not reasonably able to continue making use of other related Products licensed under this License, You may cancel Your license to the other related Products in exchange for the same pro rata refund. You shall promptly notify Lynx of any infringement claims concerning Your Use of the Product, and shall not independently defend or respond to any such claim. You shall cooperate with Lynx in the defense of any such claims, at Lynx’s expense, as reasonably requested by Lynx. Lynx’s indemnification obligations under this paragraph shall not apply to an infringement claim that occurs because of and would not have occurred but for: (i) modifications made to the Product by a party other than Lynx or its agents; (ii) Your failure to implement an enhancement provided to You by Lynx within a reasonable time of being provided access to the enhancement by Lynx along with a notice that its implementation may be necessary to avoid an infringement; or (iii) Use of the Product in combination with programs, equipment or devices not of Lynx origin or design. THE REMEDIES SET FORTH IN THIS PARAGRAPH SHALL BE YOUR SOLE REMEDIES IN THE EVENT OF AN INFRINGEMENT OR MISAPPROPRIATION CLAIM RELATING TO THE PRODUCT.
    • 6.9 Documentation. LYNX MAKES NO REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE ACCURACY OR COMPLETENESS OF THE INFORMATION SET FORTH IN ANY DOCUMENTATION PROVIDED OR MADE AVAILABLE TO YOU BY LYNX. LYNX RESERVES THE RIGHT TO MODIFY THE INFORMATION DESCRIBED HEREIN AND IN ANY DOCUMENTATION AT ANY TIME WITHOUT NOTICE. THE INFORMATION PROVIDED IN THE DOCUMENTATION IS NOT WARRANTED OR GUARANTEED TO PRODUCE ANY PARTICULAR RESULT, AND THE ADVICE AND STRATEGIES CONTAINED THEREIN (IF ANY) MAY NOT BE SUITABLE FOR EVERY ORGANIZATION. NO WARRANTY MAY BE CREATED OR EXTENDED WITH RESPECT TO ANY DOCUMENTATION OR INFORMATION PROVIDED BY LYNX OR ANY SALES REPRESENTATIVES OR ANY SALES MATERIALS. LYNX SHALL NOT UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES OF ANY KIND ARISING OUT OF THE USE OF ANY DOCUMENTATION, EVEN IF INFORMED OF THE POSSIBILITY.
    • 6.10 Evaluation Licenses. Notwithstanding the other provisions of this Section 6, with respect to evaluation licenses the Product is provided “AS IS” and without any warranty of any kind, whatsoever, and without any Maintenance or Support obligations for Lynx. To the maximum extent permissible by applicable law, You agree to release, defend, indemnify and hold Lynx harmless from any claims and/or damages of any kind, by any party or entity, arising out of Your Use of the Product for evaluation purposes.
    • 6.11 Allocation of Risk. This Section 6 allocates the risks under the EULA between Lynx and You. Lynx’s pricing reflects this allocation of risk and the limitations herein.
  • 7. SPECIAL PROVISIONS RELATING TO THIRD PARTY SOFTWARE AND CONTENT AND OPEN SOURCE COMPONENTS
    • 7.1 Third Party Software. Any Lynx licensor whose software is embedded in the Products, and any Lynx supplier whose products or technology are embedded in (or services are accessed by) the Products, shall be a third party beneficiary with respect to this License, and such licensor or vendor shall have the right to enforce this License in its own name as if it were Lynx. In addition, certain third party software may be provided with the Products and is subject to the accompanying license(s), if any, of its respective owner(s). In order for You to use the Product in a manner that interoperates with any third party software, including without limitation operating systems and databases, You understand and agree that You shall ensure that You hold a valid license to use such third party software in such manner.
    • 7.2 Third Party Content. With respect to some Lynx Products, Lynx, acting as a facilitator, consolidates, organizes and makes accessible to You through Your Use of such Product certain Third Party Content. YOU ACKNOWLEDGE THAT LYNX IS NOT THE AUTHOR, OWNER OR LICENSOR OF ANY THIRD PARTY CONTENT, AND THAT LYNX MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, AS TO THE QUALITY, CAPABILITIES, OPERATIONS, PERFORMANCE OR SUITABILITY OF THIRD PARTY CONTENT. You warrant to Lynx that You have any and all third party licenses required for You, or Lynx acting on Your behalf, to obtain, distribute and install any Third Party Content on Your servers and Nodes using the Product and the Services provided by Lynx. You hereby agree to indemnify and hold Lynx harmless from any third party claim against Lynx or its agents arising from either Your failure to pay for or obtain any required licenses for the Third Party Content, or Your misrepresentation to Lynx concerning the status of Your licenses to receive Third Party Content.
    • 7.3 Open Source Code. Notwithstanding the license grant set forth in Section 2 above, You acknowledge that certain components of the Product may be Open Source Components. Lynx shall provide a list of Open Source Components for a particular version of the Product upon Your request. To the extent required by the licenses covering Open Source Components, the terms of such licenses will apply in lieu of the terms of this License. To the extent the terms of the licenses applicable to Open Source Components prohibit any of the restrictions in this EULA with respect to such Open Source Component, such restrictions will not apply to such Open Source Component. To the extent the terms of the licenses applicable to Open Source Components require Lynx to make an offer to provide source code in connection with the Product, such offer is hereby made. YOU ACKNOWLEDGE THAT LYNX IS NOT THE AUTHOR, OWNER OR LICENSOR OF ANY OPEN SOURCE COMPONENT, AND THAT LYNX MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, AS TO THE QUALITY, CAPABILITIES, OPERATIONS, PERFORMANCE OR SUITABILITY OF ANY OPEN SOURCE COMPONENT.
  • 8. TERMINATION
    • 8.1 Termination of License by Lynx. If You default in performing any material obligations required under this License, or in the event of any suspension effected pursuant to the terms of Section 5.1, Lynx may give written notice of its intention to terminate either the entire License or application of the License to the Product to which the default relates, describing in reasonable detail the default. If You fail to remedy such material default within 30 days following such written notice, Lynx may, in addition to all other remedies available at law or in equity, terminate this License and/or the relevant Product licenses.
    • 8.2 Termination of License by You. You may terminate this License at any time, provided, however, that You shall not be entitled to any refund or other remedy with respect to any such termination except as expressly provided in this License.
    • 8.3 Effect of Termination. In the event a Subscription Term license to a Product expires without renewal or this License is terminated for any reason, You shall immediately discontinue Use of and shall within 14 days return to Lynx or certify the destruction of the relevant Product(s) and Documentation, including all copies thereof. In addition, any and all Maintenance, Support and other Services provided by Lynx shall also immediately terminate. Sections 2.4, 3.2, 6.5, 6.6, 6.7, 6.8, 6.10, 9.6, 9.12, and Articles 5 and 7 and all provisions regarding the protection of intellectual property rights, shall survive any termination of this License.
  • 9. GENERAL PROVISIONS
    • 9.1 Assignment. Product licenses may not be assigned by You without the prior written consent of Lynx, and any attempt to do so without permission shall be void; provided, however, You may assign and transfer Your complete rights and obligations to all Product licenses, without the consent of Lynx, to any corporation that is Your wholly-owned subsidiary or parent, or that survives a merger in which You participate, or to any corporation or other person or business entity that acquires all or substantially all of Your assets; provided that: (i) the assignee executes an undertaking to Lynx to comply in full with Your obligations hereunder; (ii) You retain no copies of and transfer to assignee all of the Product (including as applicable all component parts, media and related Documentation, any upgrades, and this License); and (iii) such transfer does not violate export laws or regulations. Any assignment in violation of this paragraph is void. Maintenance and Support are non-transferable and may not be assigned by You without Lynx’s express prior written consent, and any attempt to do so without permission shall be void.
    • 9.2 Entire Agreement. To the extent You and Lynx have signed a written agreement covering Your Use of the Product and Services that expressly supersedes the terms of this License, the terms of that agreement take precedence over any conflicting terms and conditions within this License. Otherwise, this License and the related Order(s) constitute the entire agreement between the parties with respect to the subject matter hereof, and all prior agreements, representations, and statements with respect to such subject matter are superseded hereby.
    • 9.3 Amendments. Lynx may amend the terms and conditions of this License at any time by reasonable notice, including without limitation by posting revised terms on its website at LynxGRC.com/lrm/EULA, which amended terms and conditions shall be binding on You; otherwise, the terms of this License may not be altered, modified, amended, changed, rescinded or discharged in whole or in part, except by written agreement executed by an authorized signatory of Lynx.
    • 9.4 Effect of Additional Terms. No pre-printed terms or provisions of any purchase order, acknowledgement or other business form that You may use in connection with the acquisition or licensing of the Product will have any effect on the rights, duties or obligations of the parties, or otherwise modify, this License, regardless of any failure of Lynx to object to such terms, provisions, or conditions. In the event of a conflict between this License and an Order, this License will control absent an express written statement in the Order specifying an intent to override a specific provision of this License.
    • 9.5 Notices. You agree to provide Lynx with a primary business contact e-mail address, to promptly provide Lynx with any changes to this e-mail address, and to accept e-mails (or other electronic communications) from Lynx at this e-mail address. You further agree that Lynx may provide any and all routine notices, statements, and other communications to You through this e-mail address, and in connection with such routine purposes notice shall be considered to have been given upon sender’s confirmation of successful transmission by e-mail. Notwithstanding the foregoing, any notice by either party related to any material provision of this EULA, including, but not limited to, breach or termination of any Product license or Services must be either: (i) sent by registered mail, return receipt requested; (ii) sent by traceable overnight air courier; or (iii) sent by confirmed facsimile, with a hard copy mailed regular mail on the same date. If addressed to Lynx, notice shall be addressed to Lynx Technology Partners, Inc., 100 Church Street, 8th Floor, New York, NY 10007, Attn: General Counsel, and if to You, a notice shall be forwarded to the address set forth in the signature block, Attn: Legal Department. Either party may change its address for notice by written notice to the other party. Notices shall be effective when received, five days following mailing, or upon confirmed facsimile transmission, whichever is earliest.
    • 9.6 Confidentiality. You understand and agree that the Product may include, and Lynx may otherwise provide to You, confidential information that is valuable to Lynx and its licensors, which includes without limitation information marked by Lynx as confidential, otherwise identified as confidential, or treated by Lynx as confidential. Confidential information may include, but is not limited to, any code, technology, know-how, ideas, algorithms, testing procedures, structure, interfaces, specifications, documentation, bugs, problem reports, analysis and performance information, and other technical or business data. You are not entitled to use or disclose such confidential information except as expressly stated in this License. Lynx may disclose details of the License and Your Orders to third parties for publicity and promotional purposes, and You expressly give Lynx permission to publish Your company name and logo on lists of Lynx’s customers.
    • 9.7 Force Majeure. Neither party shall be held responsible for any delay or failure in performance of its obligations hereunder to the extent such delay or failure is caused by fire, flood, strike, civil, governmental or military authority, acts of God, acts of terrorism, acts of war, or other similar causes beyond its reasonable control and without the fault or negligence of the delayed or non-performing party or its agents.
    • 9.8 Waiver; Severability. The failure of either party, in any one or more instances, to enforce any of the terms of this License shall not be construed as a waiver of future enforcement of that or any other term. If any provision of this License shall for any reason be held illegal or unenforceable in whole or in part, the parties shall endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in this License. If the parties fail to agree on such an amendment, such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.
    • 9.9 Governing Law, Venue and Attorney Fees. The validity and performance of this License shall be governed by and construed in accordance with the laws of the U.S. State of New York, excluding that body of law applicable to choice of law. Any legal action or proceeding relating to this License shall be instituted in a state or federal court in the County of New York, New York. Lynx and You agree to submit to the exclusive jurisdiction of, and agree that venue is proper in, these courts in any such action or proceeding. The prevailing party in any action to enforce this License will be entitled to recover its attorney’s fees and costs in connection with such action. In the event that a court of competent jurisdiction finds that the New York courts cannot exercise personal jurisdiction over You, then You agree to submit to the jurisdiction of one of the following (the choice to be solely determined by Lynx): (i) the courts of the State of Pennsylvania; (ii) the courts of the State of Virginia; or (iii) the courts of the District of Columbia.
    • 9.10 Limitation of Actions. Any action in relation to an alleged breach of this License shall be commenced within one year of the date of the breach, without regard to the date the breach is discovered. Any action not brought within that one-year time period shall be barred, without regard to any other limitations period set forth by law or statute.
    • 9.11 Government End User. If You are acquiring the Product or Services on behalf of any unit or agency of the United States Government, then on behalf of the government You agree that: (i) if supplied to a unit of the Department of Defense (DOD), the Product and Services are classified as “Commercial Computer Software” and the Government is acquiring only “restricted rights” as that term is defined in Clause 252.227-7013(c)(1)/7014(a)(1) of the DFARS; and (ii) if supplied to any unit or agency of the United States Government other than DOD, the Government’s rights in the Product and Services will be restricted to the extent allowed by law and as stated and defined in Clause 52.227-19(c)(2) of the FAR or, in the case of NASA, in Clause 18-52.227-86(d) of the NASA Supplement to the FAR. The Product and Documentation were developed fully at private expense.
    • 9.12 Export Controls. You shall not, and shall not permit any third party to, export, ship, transmit or re-export the Product or Documentation, or any portion thereof, to any country, entity, or individual which is prohibited or restricted by any agency of the United States government. You shall not, and shall not permit any third party to, export, ship, transmit or re-export the Product or Documentation, or any portion thereof, to any country, entity, or individual for which a license is required under the export control laws of the United States and the administrative regulations issued thereunder, without first obtaining the required license. You shall not Use the Product or Third Party Content, or allow the transfer, transmission, export, or re-export of any portion thereof, in violation of any export control laws or regulations administered by the U.S. Commerce Department, Office of Foreign Assets Control, or any other government agency. The Product is further restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology.
    • 9.13 Relationship of the Parties. Nothing contained in this License shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties. The relationship between the parties shall at all times be that of independent contractors. Neither party shall have authority to contract for or bind the other in any manner whatsoever.
    • 9.14 Persons Obligated. This License is binding on You as well as your employees, contractors and agents, and your successors and assigns, to the extent assignment is permitted by this License