OESIS Endpoint Assessment Tool Terms of Service

These Terms of Service (“TOS”) is a legal and enforceable TOS between you (“Customer”), Customer being either an individual or a single legal entity, and OPSWAT, Inc. (“OPSWAT”) for OESIS Endpoint Assessment Tool further described in this TOS. In the absence of a separate written TOS between Customer and OPSWAT that, by its terms, explicitly modifies or replaces this TOS, Customer by using OESIS Endpoint Assessment Tool, agrees to be bound by the terms of this TOS. If Customer does not agree to the terms of this TOS, Customer agrees not use OESIS Endpoint Assessment Tool.
1. DEFINITIONS

1.1 'Admin User' shall mean an employee or contractor of Customer creating a OESIS Endpoint Assessment Tool account covered by this TOS, and other users with whom this user shares access credentials to the GEARS. An Admin User may also be an End User (defined below).

1.2 'Device'means a computing device capable of running a GEARS Client (defined below).

1.3 'End Users' shall mean users having a Device on which the GEARS Client is deployed.

1.4 'OESIS Endpoint Assessment Tool' means OPSWAT technologies made available through the OESIS Endpoint Assessment Tool Management Interface (defined below) and GEARS Client (defined below), including any feature enhancements, updates, upgrades, patches, error fixes and other new releases made generally available by OPSWAT, and associated documentation, as generally described at https://gears.opswat.com.

1.5 'OESIS Endpoint Assessment Tool Management Interface' means the password-protected cloud-based interface from which Admin Users can deploy GEARS Clients to End Users configure policies, alert settings and remediation actions.

1.6 'GEARS Client' means endpoint software agents for supported operating systems that gather information from End User Devices and report this information to the OESIS Endpoint Assessment Tool Management Interface, and implement remediation actions configured by Admin Users on End User Devices.
2. OESIS ENDPOINT ASSESSMENT TOOL LICENSE GRANTS

2.1License Grant. OPSWAT hereby grants to Customer a nonexclusive license, during the term of this TOS, to have Admin Users use the OESIS Endpoint Assessment Tool Management Interface and End Users use GEARS Clients. Customer understands and agrees that in the absence of a separate written agreement covering paid usage of OESIS Endpoint Assessment Tool by Customer, certain features of OESIS Endpoint Assessment Tool may not be available to Customer.

2.2Reservation of Rights. Except for the express rights granted in this TOS, all right, title, and interest in and to OESIS Endpoint Assessment Tool shall remain with OPSWAT. Customer is granted no rights in the OESIS Endpoint Assessment Tool other than those rights expressly set forth in this TOS. Without limitation Customer acknowledges that Customer and its Admin Users and End-Users are prohibited from reverse engineering, reverse compiling, disassembling or modifying OESIS Endpoint Assessment Tool or the OPSWAT technologies on which OESIS Endpoint Assessment Tool is based. Nothing herein shall be construed as granting Customer any rights in or access to the source code for OESIS Endpoint Assessment Tool.
3. INFORMATION GATHERED AND STORED

3.1 Information Gathered and Stored. Customer understands, acknowledges, and agrees that OESIS Endpoint Assessment Tool gathers and stores certain information on the servers used to administer and maintain OESIS Endpoint Assessment Tool. Such information will include the following information from:

(i) Admin Users creating OESIS Endpoint Assessment Tool Accounts:

User Name provided by the Admin User
Password provided by the Admin User
Email Address provided by the Admin User
Phone Number provided by the Admin User
Company Name provided by the Admin User
Title provided by the Admin User
Configuration settings chosen by the Admin User, and:

(ii) Devices running the GEARS Client deployed by Admin User:

User Name of End User logged onto the Device
Name of the Device (i.e., the Host Name)
MAC Address of the Device
IP Address currently assigned to the Device by its Internet Service Provider
Supported endpoint applications installed on a Device and the state information of these endpoint applications
When configured by the Admin User and if available, threats detected by the antivirus application installed on the Device, location of the threat and action taken by the installed antivirus
When configured by the Admin User, threats detected by remotely installed antivirus engines of files uploaded from the Device for analysis and the results of the analysis

Customer agrees and acknowledges that the above-listed information is necessary for OESIS Endpoint Assessment Tool to perform, as designed. Customer further agrees and acknowledges that OPSWAT may aggregate and use the following GEARS Client information in OPSWAT Market Share reports published at http://www.opswat.com/about/media/reports:

Probable countries/nations associated with IP Addresses assigned to Devices to by their Internet Service Providers
Supported endpoint applications installed on a Devices and the state information of these endpoint applications

4. DISCLAIMER OF WARRANTIES

OESIS ENDPOINT ASSESSMENT TOOL AND ALL ASSOCIATED SOFTWARE, SERVICES AND OTHER ITEMS RELATED THERETO ARE PROVIDED ON AN 'AS IS' BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS TOS, OPSWAT EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION (I) ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (II) ANY REPRESENTATION OR WARRANTY REGARDING THE CAPABILITY, PERFORMANCE OR FUNCTIONALITY OF ANY FEATURES PROVIDED THROUGH OESIS ENDPOINT ASSESSMENT TOOL, INCLUDING WITHOUT LIMITATION THE ACCURACY, COMPLETENESS, RELIABILITY, TIMELINESS, OR COMPATIBILITY THEREOF, OR (III) ANY WARRANTY THAT MAY ARISE BY USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE. CUSTOMER ACKNOWLEDGES THAT IT HAS RELIED ON NO REPRESENTATIONS OR WARRANTIES OF ANY PERSON OTHER THAN AS EXPRESSLY SET FORTH IN THIS TOS.

OESIS ENDPOINT ASSESSMENT TOOL MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. OPSWAT IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS
5. INDEMNIFICATION

Customer will indemnify, defend, and hold harmless OPSWAT from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys' fees) arising out of a third party claim regarding Customer's use or misuse of OESIS Endpoint Assessment Tool.
6. WAIVER OF CONSEQUENTIAL DAMAGES AND LIMITATION OF LIABILITY

6.1 WAIVER OF CONSEQUENTIAL DAMAGES. IN NO EVENT WILL OPSWAT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, STATUTORY, PUNITIVE, INDIRECT OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS AND LOST SAVINGS, HOWEVER CAUSED, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, TORT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE, WHETHER OR NOT OPSWAT WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. THE FOREGOING LIMITATION SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED WARRANTY SET FORTH IN THIS TOS.

6.2 LIMITATION OF LIABILITY. OPSWAT (INCLUDING FOR THE PURPOSES OF THIS SECTION THEIR RESPECTIVE DIRECTORS, OFFICERS, AGENTS, EMPLOYEES, CONTRACTORS, AND LICENSORS) SHALL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATED TO THE USE, MISUSE OR INABILITY TO USE THE SERVICES OR ANY OPSWAT PRODCUT (INCLUDING BUT NOT LIMITED TO LOSS OF USE OR GOODWILL, INTERRUPTION OF BUSINESS, LOSS OF PROFITS OR REVENUE, AND COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES), REGARDLESS OF THE FORM OF ACTION WHETHER, IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF CUSTOMER OR SUCH OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL OPSWAT LIABILITY TO CUSTOMER OR ANY THIRD PARTY ARISING FROM OR RELATING TO THIS TOS EXCEED THE AMOUNT PAID (AND THEN OWED) BY CUSTOMER TO OPSWAT UNDER THIS TOS WITHIN THE THREE MONTHS PRECEDING THE DATE THE LOSS AROSE. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THIS LIMIT.
7. TERM AND TERMINATION

Customer can stop using OESIS Endpoint Assessment Tool any time. OPSWAT reserves the right to suspend or end the OESIS Endpoint Assessment Tool at any time, with or without cause, and with or without notice. For example, OPSWAT may suspend or terminate Customer use if Customer is not complying with these TOS, or use OESIS Endpoint Assessment Tool in any way that would cause OPSWAT legal liability or disrupt others’ use of the OESIS Endpoint Assessment Tool.
8. MODIFICATIONS

OPSWAT may revise features of OESIS Endpoint Assessment Tool and these TOS from time to time and the most current version will always be posted on the OESIS Endpoint Assessment Tool website. If a revision to OESIS Endpoint Assessment Tool features or these TOS are, in OPSWAT’s sole discretion, material OPSWAT may notify Customer (for example via email to the email address associated with Customer’s account). By continuing to access or use OESIS Endpoint Assessment Tool after revisions become effective, Customer agree to be bound by the revised Terms. If Customer does not agree to the new terms, please stop using the OESIS Endpoint Assessment Tool.
9. THIRD PARTY SUPPLIERS

Components of OESIS Endpoint Assessment Tool may include software or other code distributed under license from third party suppliers. Customer acknowledges that such third party suppliers disclaim and make no representation or warranty with respect to the Software or any portion thereof and assume no liability for any claim that may arise with respect to the OESIS Endpoint Assessment Tool or Customer’s use or inability to use the same.
10. GENERAL PROVISIONS

10.1 Choice of Law; Venue. This TOS will be governed by and construed according to the laws of the State of California, excluding California’s choice of law principles. In the event of any dispute or claim arising out of this EULA, You hereby submit to exclusive venue in, and the exclusive jurisdiction of, the federal and state courts, as applicable, located in San Francisco, California (except that a party may enforce a judgment in any court of competent jurisdiction).

10.2 Waiver. No waiver will be implied from conduct or failure to enforce rights. No waiver will be effective unless in writing signed by the party against whom the waiver is asserted, and such waiver shall only be effective as to the particular act identified in the written waiver.

10.3 Severability. If any part of this TOS is found invalid or unenforceable (the “Invalid Clause”), that part will be enforced to the maximum extent permitted by law, and the remainder of this TOS will be enforced to the extent such enforcement, when viewed in light of the full or partial exclusion of the Invalid Clause, is consistent with the parties’ intent.

10.4 Relationship of Parties. The parties to this TOS are independent contractors. There is no relationship of agency, partnership, joint venture, employment or franchise between the parties. Neither party has the authority to bind the other or to incur any obligation on its behalf. Neither party shall have, nor shall it represent that it has, any power, right or authority to bind the other party, or to assume or create any obligation or responsibility, express or implied, on behalf of the other party or in the other party’s name, except as herein expressly permitted.

10.5 Freedom of Action. This TOS shall not be construed to prohibit or restrict either party from, without breach of the party’s obligations hereunder, developing, making, having made, using, leasing, licensing, buying, selling or otherwise disposing of or dealing with in any manner any products or services whatsoever, now or in the future.

10.6 Entire TOS. This TOS represents the entire TOS between the parties relating to its subject matter and supersedes all prior representations, discussions, negotiations and TOSs, whether written or oral. Questions concerning these TOS should be directed to sales@opswat.com.