Infocyte HUNT End User License Agreement


This End User License Agreement (“EULA”) is between Infocyte and the individual or legal entity that has placed an order for the Infocyte HUNT Platform (“you” or “your”).  You may not use the Platform unless and until you have consented to be bound by all of the terms, conditions and restrictions of, and have become a party to, this EULA, either by signing this EULA if Infocyte or its authorized reseller has presented the EULA for signature, or by signing another document that incorporates this EULA by reference.  If the individual consenting to this EULA does so on behalf of a legal entity, then the individual represents and warrants to Infocyte that he or she has the authority to legally bind that entity to this EULA.  The Platform license stated below extends only to the entity that is a party to this EULA and not to that entity’s affiliates.

Capitalized terms used in this EULA are defined in the Section where they are first used or are defined in Section 21 (Definitions) below. 

1.       Platform.  The “Platform” is Infocyte’s generally available commercial release of Infocyte HUNT comprised of: (i) the on-premises HUNT and survey module software to be deployed on your network, (ii) the Infocyte-hosted Incyte Cloud Service, and (iii) Documentation, collectively, as it may be updated by Infocyte.  You may use the Platform for the Subscription Term defined in your Order, subject to the terms, conditions, and restrictions stated in this EULA.  Your “Subscription” includes the rights (i) to use the Platform for the Subscription Term and (ii) to receive Support.

2.       Subscription Term.  You may use the Platform for the Subscription Term. The initial Subscription Term is stated in the Order.  The Subscription Term begins on the day that Infocyte makes the Platform accessible to you by providing you with access codes and other information that enables you to download the HUNT software and remotely access the Incyte Cloud service.  Orders do not automatically renew.  If you have not purchased a Subscription renewal before the expiration of a Subscription Term, the Order expires and Infocyte has no further obligation to provide the Subscription.  If you add Endpoints to your Subscription during a Subscription Term, the Subscription Term for the additional Endpoints is co-terminous with the then-current initial or renewal Subscription Term of the original Subscription Order.  If your Subscription is renewed, the additional Endpoints will be included with the renewal, unless otherwise agreed in writing.

3.       Payment.  In consideration for the rights granted under your Subscription, you agree to pay all fees specified in your Order within 30 days of signing your Order, or as otherwise specified in your Order.

4.       Support.  Support includes assistance to you in connection with your use of the Platform, and updates to the Platform software to fix bugs, correct errors, or enhance functionality that Infocyte releases on a generally available commercial basis to all subscribers of a Platform product without additional charge.  Infocyte Support plans are limited to correcting errors, bugs or other issues with the Platform and do not extend to any Third Party Products or technologies you use with the Platform, any issues arising from modifications to the Platform not made or authorized by Infocyte, or the use of the Platform other than as authorized by this EULA.  If you request Support that is not covered by your Support plan, Infocyte may invoice you at its then-current time and materials rates in connection with the request, provided that Infocyte informs you that you will incur charges promptly on learning that the request is not covered by your Support plan.

5.       Incyte Cloud Service. The Incyte Cloud Service element of the Platform will generally be available to you 24 hours per day, 7 days per week, except that Infocyte may disable access to the Incyte Cloud Service as necessary to perform maintenance.  Infocyte will use commercially reasonable efforts to perform maintenance after 5:00 p.m. and before 6:00 a.m. or after 5:00 p.m. Friday and before 6:00 a.m. Monday, United States Central time (GMT-6).  Infocyte will provide you with notice of maintenance start and completion via the customer portal or an email.

6.       Contact Person.  You must designate an employee or agent to act as the contact person for receiving and managing all communications between us related to your use of the Platform.  You may change your contact person upon written notice to Infocyte.

7.       Security. Infocyte will provide you with information necessary to access and use the Platform.  You must use reasonable care to protect the confidentiality of your access information, and you are solely responsible for any use of the Platform that is enabled by means of your access information, even if the use is unauthorized.  You must notify Infocyte immediately if you believe the confidentiality of your access information has been compromised.  Infocyte will maintain reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the Platform.  On your request, Infocyte will provide you with a description of its security measures for the Platform (the “Security Documentation”).  You acknowledge that the Security Documentation is sensitive confidential information of Infocyte and agree that you will not disclose the Security Documentation to any third party or use the Security Documentation for any purpose other than evaluating the security of the Platform.  You, and not Infocyte, are responsible for deciding if Infocyte’s security measures meet your requirements in light of your business goals and any laws or regulations applicable to your business.  You agree that Infocyte is not responsible for any harm you may suffer as a result of a security incident arising from your use of the Platform unless the incident resulted from Infocyte’s failure to properly implement and maintain the security measures described in its Security Documentation.

8.       Platform License and Restrictions.  You may use the Platform to assess the number of Endpoints for which you have purchased a Subscription.  You may use the Platform only for your internal business purposes and not as part of a services offering to any third parties.  You may use software provided to you as part of the Platform only in its executable form.  You may not transfer or sublicense the Platform to, or make the Platform available for use by, any person except your employees and your permitted contractors as described in Section 17 (Assignment, Contractors).  You may deploy as many survey modules as reasonably incident to your licensed use, and you may make a reasonable number of backup or archival copies of the analytics engine, but you may not otherwise copy the Platform.  The survey modules are designed to be self-deleting, but in the event a survey-module does not self-delete, you must delete the module on completion of the assessment for which the module was deployed.  You may not use the Platform in connection with any activity where the failure of the Platform might result in death, personal injury or severe physical or environmental damage, such as controlling aircraft or other modes of human mass transportation, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles, and weaponry systems.  Your license is worldwide, subject to applicable export laws.  Your license is non-exclusive.  You may not modify the Platform or create any derivative works of the Platform.  You may not reverse engineer, disassemble or de-compile the Platform except as permitted by applicable law notwithstanding this restriction, and then on advance written notice to Infocyte of at least 30 days.  You may not publish any benchmark or other performance test results regarding the Platform.  You may not remove any copyright, trademark, or other proprietary notices that appear on or with the Platform.  The Platform may include software that is licensed under open source licenses.  License terms, notices, attributions and other information about the open source elements of the Platform are available in the licensing file distributed with the Platform.  If there is a conflict between this EULA and any open source license for software included in the Platform, the open source license will control.  

9.       Third Party Products.  Any Third Party Products provided by Infocyte are subject to the terms of the license and other agreement terms of the third party provided to you by Infocyte or accompanying the Third Party Product.  Specifically, but without limitation, all operating system, virtualization and other general systems software is a Third Party Product subject to separate licensing terms, conditions and restrictions of the third party providers.  For example, your use of Windows Server software or other Microsoft software is subject to the Microsoft Corporation’s license terms.  You may be required to accept the end user license and other terms of the third party providers as a condition to your use of the Third Party Products.

10.   Records and Verification.  You must keep complete and accurate records regarding your use of the Platform, and you may not delete or obscure any information regarding the use of the Platform that is generated by the Platform.   On Infocyte’s request, you will provide reasonable information to evidence your use of the Services in compliance with this EULA and each Order, certified as “true, complete and correct” by your chief financial officer.   In addition, Infocyte may perform an audit of your records, either onsite, or by means of remote access, on ten days advance written notice, provided that the audit must be conducted during normal business hours and may not unreasonably interfere with your normal business operations.

11.   Evaluation.  If you are authorized to use the Platform on a “test,” “evaluation,” “lab,” “Not For Resale,” “proof of concept,” “temporary” or similar basis, then you may use the Platform for the period stated in the written authorization for such use, or if no term is stated, 30 days from the day the Platform is first made available to you (the “Evaluation Period”).  Your access to the Platform may automatically terminate at the end of the Evaluation Period.  If you do not purchase a production Subscription at the end of the Evaluation Period, you must destroy all Results generated as part of the evaluation.  During the Evaluation Period, you may use the Platform only for the purpose of evaluating the Platform for the purchase of a production Subscription.  Infocyte has no obligation to provide any Support or other services during the Evaluation Period, but may do so at its option.   Any Support or other professional services provided during the Evaluation Period are provided “AS IS” with no representation or warranty whatsoever. 

12.   Malware Risk.  Your use of the Platform may reveal Malware on your systems, and the Platform may recover and retain a copy in an inert state for evidence retention.  The removal or transfer of Malware may introduce additional risks to your network.  You assume all risk and responsibility for the possession, handling and use of Malware identified by, or exported from, the Platform.

13.   Termination.  Your Subscription terminates automatically if you violate any Platform restrictions stated in Section 8 (Platform License and Restrictions).  In addition, Infocyte may terminate your Subscription on written notice if you are in violation of any term of an Order and the violation is not curable, or following 30 days from its notice of the violation if the violation is curable and has been cured by the end of the 30 days.  In addition to its termination rights, Infocyte may suspend your use of the Platform during any period that you are in breach of this EULA.  Infocyte will reinstate you access to the Platform when the grounds on which the suspension was based are cured unless Infocyte has previously given a notice of breach for purposes of termination. On termination of the EULA, you must uninstall all Platform elements from your systems and destroy or render them unusable.  On Infocyte’s request, you will certify in writing that you have complied with this Section.  Those terms of this EULA that are intended by their nature to survive expiration or termination of this EULA shall survive expiration or termination.

14.   Warranty and Warranty Disclaimers.

14.1 Warranties.  Infocyte warrants that (i) the Incyte Cloud Service elements of the Platform will be available to you without material interruption, except for scheduled or emergency maintenance; (ii) it will use commercially reasonable efforts to update the Incyte Cloud Service with new threat information as it becomes available; and (iii) its support personnel will use commercially reasonable efforts to resolve any Support issue within the target resolution times stated in the Support plan.  If the Platform or Services fail to conform to the applicable warranty, Infocyte’s sole obligation, and your sole and exclusive remedy, is: (i) if the failure is curable, Infocyte’s cure of the failure in a commercially prompt manner, or (ii) if the failure is not curable, Infocyte’s refund of the fees paid for the non-conforming part of the Services, or for your use of the Platform during the period of non-conformance, but in all events subject to Section 15 (Limitation of Liability).

14.2 Warranty Exclusions.  Infocyte’s warranty is void as to your use of the Platform other than as permitted by this EULA or in a manner not contemplated by the Documentation.  The warranty is void as to any version of the Platform if you have not implemented each Infocyte maintenance release for the analytics engine within 45 days of the date that the release is made available to you.  You acknowledge that Infocyte is not responsible for the security of your network generally, and that Infocyte does not represent or warrant that the Platform meets your particular security requirements or the requirements of any laws or regulations governing your operations.

14.3  Warranty Disclaimer.  Except as expressly stated in this Section, Infocyte makes no representation or warranty whatsoever regarding the Platform, and the Platform is provided AS IS.   Infocyte makes no representation or warranty whatsoever regarding any Third Party Products, and as between you and Infocyte any Third Party Products are provided AS IS.  Infocyte does not warrant that the Platform will be error free or uninterrupted, or that the Platform will identify all malware or other threats present on your network.  Infocyte disclaims any implied or statutory warranties, such as a warranty of merchantability, fitness for a particular purpose, and non-infringement, and disclaims any warranty that may arise from a course of dealing.  Any warranty that cannot be excluded under applicable law is limited in duration to 30 days from the event giving rise to the warranty.

15.   Limitation of Liability. To the maximum extent permitted by applicable law, (i) in no event shall Infocyte or its licensors, suppliers or affiliates have any liability for harm you suffer that could have been avoided by your reasonably prompt implementation of a software update, or for any consequential, exemplary, special, indirect, incidental or punitive damages, including any lost profit or lost savings (whether resulting from impaired or lost data, software or computer failure, support failure or any other cause, even if it has been advised of the possibility of such damages; and (ii) in any event and notwithstanding any other provision in this EULA to the contrary, the aggregate liability of Infocyte and any of its licensors, suppliers, or affiliates to you for any reason and upon any cause of action shall be limited to the amount paid for the Subscription or Services giving rise to the claim during the twelve (12) months preceding the day of the final event giving rise to the claim.  You acknowledge that Infocyte has set its prices and entered into this EULA and Orders in reliance on the limitations of remedies and liability stated in this EULA, and that these limitations reflect an agreed allocation of risk between the parties.  The limitations stated in this Section shall apply to any liability arising from any cause of action whatsoever, whether in contract, tort, commercial code, strict liability or otherwise, even if a limited remedy fails of its essential purpose. Nothing in this Section precludes a party from seeking specific enforcement, injunctive relief or other equitable remedy. If these limitations as written are not permitted by applicable law, they shall apply to the extent permitted by applicable law.

16.   Indemnification.  Infocyte shall defend and hold you harmless from any claim by a third party that the Platform infringes any United States patent, trade secret or copyright of that third party, provided that you (i) notify Infocyte promptly in writing of any such allegation or claim, (ii) reasonably cooperate with Infocyte to settle or defend such allegation or claim, and (iii) grant Infocyte sole authority and control of the defense or settlement of such allegation or claim.  Notwithstanding the foregoing, Infocyte shall have no obligations under this Section to the extent any infringement allegation or claim is based upon or arises out of (i) any modification or alteration to the Platform not approved in writing by Infocyte, (ii) any combination or use of the Platform with products or services not supplied by Infocyte or approved in writing by Infocyte in advance of such combination, or (iii) use of the Platform not in accordance with applicable Documentation provided by Infocyte or outside the scope of the rights granted under this EULA.

17.    Assignment, Contractors.  Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this EULA in its entirety (including all Orders, if signed by Infocyte), without the other party’s consent to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this EULA upon written notice. Subject to the foregoing, this EULA will bind and inure to the benefit of the parties, their respective successors and permitted assigns.  You may not allow any person to use the Platform other than: (i) your employees and individual contractors acting under your direct supervision, and (ii) the personnel of outsourcers who are performing an internal business function for you and on the condition that the outsourcer has expressly agreed that its use of the Platform is subject to this EULA.  You remain responsible for your contractors and outsourcers’ use of the Platform in violation of the terms of this EULA.  Infocyte may use subcontractors to perform its obligations under this EULA.

18.   Rights in Data.  You retain all right, title and interest in and to Your Data.  Infocyte will use Your Data solely for the purpose of providing the Services.  You acknowledge that the Platform collects a broad range of system information.  The Platform does not target the collection of data stored on or processed by means of the systems assessed, but may unavoidably capture this type of data.  Infocyte will not use this data for any purpose and will use reasonable means to protect the security of this data.  If Infocyte discovers that it has captured more than an incidental amount of this type of data, Infocyte will inform you and will destroy the data.  Infocyte has entered into an arrangement to share data with the Center for Education and Research in Information Security at the University of Texas, San Antonio, and may enter into arrangements with other cyber security research projects and initiatives (the “Cyber Security Projects”).  You authorize Infocyte to share your system data collected by Infocyte as part of the Services with the Cyber Security Projects, provided that Infocyte does not share any information that would identify you or any individual with the shared data, and Infocyte completely removes from the shared data any of Your Data that may have been collected as part of Infocyte’s data collection process.

19.   Rights in Intellectual Property.  Except for the license rights expressly stated in this EULA, Infocyte and its licensors retain all right, title and interest in and to the Platform and all related intellectual property, including all Infocyte trademarks.  Your license confers no title or ownership in the Platform and is not a sale of any rights in the Platform. If you provide any feedback, comments, or suggestions for the improvement of the Platform or any other Infocyte products or services (“Suggestions”), you hereby license the Suggestions and all related intellectual property to Infocyte on a non-exclusive, worldwide, fully paid, perpetual, irrevocable basis for Infocyte to use, disclose, modify, reproduce, license, distribute, commercialize and otherwise freely exploit without restriction of any kind, without right of accounting.  You acknowledge that data generated by your use of the Services is not Your Data, and that Infocyte may use this data for the purpose of improving its Platform and operations generally and as indicated in Section 18, so long as such use does not entail the disclosure of any information that would identify you or any individual in relation to the data.

20.    Export Compliance. The Platform may be subject to export laws and regulations of the United States and other jurisdictions. You may not permit users to access or use the Platform in a U.S.-embargoed country or in violation of any U.S. export law or regulation, or in a manner that causes Infocyte to be in violation of U.S. export laws, even if the use is permitted under the laws applicable to you or the user.  Each party represents that it is not on any restricted persons list maintained by the U.S., Canada, or any member of the European Union.  “Export laws” include the U.S. Export Administration Regulations (Title 15 of the U.S. Code of Federal Regulations Part 730 et seq.), International Traffic in Arms Regulations (Title 22 of the U.S. Code of Federal Regulations Parts 120-130), the economic sanctions rules and regulations implemented under statutory authority and/or President's Executive Orders and administered by the U.S. Treasury Department's Office of Foreign Assets Control (Title 31 of the U.S. Code of Federal Regulations Part 500 et seq.), the EU's restrictive measures as published on the website of the European External Action Service, and the applicable export laws of any other jurisdiction.

21.   DefinitionsInfocyte means Infocyte, Inc., a Delaware corporation; Documentation means the commercially available, general release version of materials describing the Platform or its use, whether in print or digital form.  Examples of Documentation are user manuals, administration guides, installation guides, training manuals, white papers, specifications, designs, test plans and test results, configuration guides, reference architectures, FAQs, and issues documentation.  Documentation does not include any advertising or marketing materials; Endpoint means a network endpoint, such as a workstation or server.  Virtual servers, virtual desktops and other logically distinct endpoints are each an “Endpoint;”  Malware means any virus, malware, spyware, ransomware, adware, or other code or information that is designed to interrupt the normal use of an information system, or destroy or corrupt any data, or covertly transmit information; Order means the written order signed and submitted by you to the Infocyte authorized reseller (or to Infocyte as applicable) and accepted by the reseller (or Infocyte as applicable) that lists the Platform subscription products and Support plan, fees, use limitations, and other transaction terms (which, in the event of any conflict with any term of this EULA, shall prevail over this EULA); Results means information or output that results from the use of the Platform, such as scan results, reports, and raw data, in any form, and on any media that they may be captured, recorded or communicated;  Services means any services that Infocyte has agreed to provide under this EULA;  Support has the meaning given in Section 4 (Support); Third Party Product(s) means any software, services, goods or other products or technology that are provided to you by a third party, or that are provided by Infocyte but are: (i) covered by an open source license, or (ii) identified by Infocyte with a brand name or logo that is not an Infocyte brand name or logo, or (iii) provided subject to your agreement to the third party’s legal terms and conditions; Your Data means the data stored on or processed by or through your information technology systems that are assessed by Infocyte as part of the Services, including (i) personally identifiable information, health information, financial data or other information regarding your customers, suppliers, insureds, and end users, (ii) your financial data, and (ii) your other business use data.

22.   General.  If you are a government agency, you acknowledge that the Platform and related software has been developed at private expense and is provided with RESTRICTED RIGHTS.  The parties confirm that this EULA is drafted in English only. Any notices under this EULA must be given in English. The use of the word “including” shall be read to mean “including, without limitation.” All references to monetary amounts shall mean United States Dollars unless otherwise indicated.  The term “parties,” either in lower- or upper-case form, refers to Infocyte and the person who accepts this EULA.  A reference to “day” shall mean a calendar day, unless expressly designated as a “business” day.  Any requirement in this EULA that a statement be written, in writing, or a like requirement is satisfied by an email or other digital form of writing unless expressly stated otherwise.  Nouns stated in the singular shall imply the plural as indicated by the context, and pronouns that are gender specific shall be read to refer to either gender.  The Section captions in this EULA are for convenience only; they are not part of this EULA and may not be used to interpret the terms of this EULA. In the event one or more of the terms of this EULA are adjudicated invalid, illegal, or unenforceable, the adjudicating body may either interpret this EULA as if such terms had not been included, or may reform such terms to the limited extent necessary to make them valid, legal or enforceable, consistent with the economic and legal incentives underlying the EULA. This EULA may be modified only by a written document that expressly refers to this EULA and is signed by the parties.  No right or remedy arising in connection with this EULA shall be waived by a course of dealing between the parties, or a party’s delay in exercising the right or remedy.  A party may waive a right or remedy only by signing a written document that expressly identifies the right or remedy waived.  Unless expressly stated in the waiver, a waiver of any right or remedy on one occasion will not be deemed a waiver of that right or remedy on any other occasion, or a waiver of any other right or remedy.  The pre-printed terms on the parties’ purchase orders or other business forms shall have no effect whatsoever.  There are no third-party beneficiaries to this EULA.  This EULA will be governed by the laws of Texas and United States of America, as applicable, and exclusive venue for an action arising under or in connection with this EULA shall be in Travis County, Texas.  To the extent permitted by applicable law, each party waives the right to a jury trial.

 

This EULA is the complete and exclusive agreement between you and Infocyte and supersedes and replaces in its entirety any prior or contemporaneous agreement or understanding, written or oral.