End User License Agreement
-WAPPLES User Agreement-
Please read the terms below carefully prior to use. Through installing, accessing, or using this software product, you agree to be bound by these terms and conditions. If you are accepting these terms on behalf of another person, or a company or other legal entity, you represent and warrant that you have full authority to bind that person, company, or legal entity to these terms.
This End User License Agreement (hereinafter referred to as “Agreement”) is entered into by and between Penta Security (defined below) and you (either an individual or single entity) for the product developed, sold, and distributed by Penta Security.
If you do not agree to these terms,
(a) do not install, access or use the software product, and;
(b) promptly return the product with proof of purchase to the party from whom you acquired it.
2.1 "Penta Security" means Penta Security Systems Inc., a limited company incorporated in South Korea having its registered office at Hanjin Shipping Bldg., 20th Fl. 25-11 Yeouido-dong, Youngdeungpo-gu, Seoul, South Korea.
2.2 “Product” means Penta Security’s web application firewall product, WAPPLES, consisting of appliance hardware itself, together with any related components, software programs, and related Documentation. Related components and documentation are defined in the 'WAPPLES Installation Guide."
2.3 “Documentation” means any documentation which accompanies the Product (regarding its update, software, and hardware).
2.4 “License” means the right granted under the Agreement to authorized users to use the software product developed by Penta Security. License in this Agreement only means WAPPLES license.
2.5 “Customer” means licensee who is the user (either an individual or a single entity) of Penta Security's products under this Agreement.
The Customer will have no right and will not, nor will it authorize or assist others to:
(a) remove or tamper with any copyright or other proprietary notices contained in or relating to the Product, or any portion thereof, without Penta Security’s prior written approval;
(b) modify or makes copies of the Product, or translate or port the software into any other computer or human language;
(c) copy the Documentation;
(d) modify, copy, translate, dismantle, reassemble, decompile, disassemble, reverse engineer, or repackage all or any component of the Product, or otherwise attempt to discover any portion of the source or trade secrets related to the Product;
(e) perform public demonstration of the Product, or use the Product on time sharing basis without Penta Security’s prior written consent;
(f) remove, alter, distort, cover, or modify any notice of copyright, trademark, or other proprietary right appearing in or on any item included with the Product or its packaging;
(g) register, attempt to register, or assist anyone to register, directly or indirectly, the trademarks or any copyright or other proprietary rights associated with the Product in any country other than in the name of Penta Security;
(h) sell, lease, license, sublicense, rent, assign, distribute or otherwise transfer the Product or any of the Customer’s rights therein;
(i) disclose, without Penta Security’s prior written consent, performance or capacity statistics or the results of any benchmark test performed on Product;
(j) modify or create derivative works based on or utilizing the software of Penta Security.
5.1 Penta Security represents and warrants that the Product will perform substantially in accordance with the Documentation for a period of sixty (60) days from the receipt of the software, and for a period of one (1) year from the receipt of the hardware for a limited hardware warranty (hereinafter referred to as the “Warranty Period”).
The Customer’s sole and exclusive remedy for breach of this warranty shall be to notify Penta Security within the Warranty Period, detailing the nonconformance, and to provide Penta Security with a reasonable opportunity to correct or replace the defective Product. If Penta Security fails to remedy such a breach, the Customer shall be entitled to terminate this Agreement (including the license), and Penta Security shall pay the Customer an amount equal to the License Fee paid to Penta Security. This payment shall be the Customer’s sole and exclusive remedy, and Penta Security’s sole and exclusive liability. This limited warranty shall be void if Penta Security determines that the Product has been used other than in accordance with the Documentation, abused, modified, altered, or otherwise subjected to damage from accident or acts of nature. The Customer agrees to comply with Penta Security’s reasonable instructions with respect to the alleged defective Product, which may include exchange or return of the defective Product at Penta Security’s sole expense.
5.2 EXCEPT AS EXPRESSLY PROVIDED IN SECTION 5.1, THE PRODUCT IS PROVIDED BY PENTA SECURITY TO THE CUSTOMER “AS IS,” AND PENTA SECURITY AND ITS SUPPLIERS, IF ANY, MAKE NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED. PENTA SECURITY DOES NOT WARRANT THAT THE PRODUCT WILL MEET THE CUSTOMER’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, OR BE ERROR-FREE. EXCEPT AS SET FORTH IN SECTION 5.1, THE CUSTOMER WILL BEAR ALL RISKS RELATING TO THE QUALITY AND PERFORMANCE OF THE PRODUCT, AND SHALL ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION UNRELATED TO SUPPORT SERVICES OR PROFESSIONAL SERVICES PROVIDED HEREIN.
5.3 Unless and to the extent that technical support services are purchased by the Customer from Penta Security, the Customer is solely responsible for the proper configuration of all hardware, as well as other equipment, databases, and other software used with the Product.
6.1 Subject to section 4.2 below, Penta Security will defend, indemnify, and hold harmless the Customer from and against any and all claims or actions (hereinafter referred to as “Claim”) brought or made by a third party against the Customer, and from all damages, costs, claims and expenses (including reasonable attorneys’ fees) arising in connection therewith. Penta Security shall pay any settlements agreed to by Penta Security or judgments awarded against the Customer in favor of a third party resulting from such Claim, to the extent based upon any Claim that the Software and/or Product infringes upon any valid international patent, copyright, or trade secret, provided that the Customer: (a) as promptly as reasonably possible notifies Penta Security in writing of any such Claim; (b) gives Penta Security full authority and control of the settlement and defense of the Claim; and (c) fully cooperates to the extent reasonably possible with Penta Security in the defense of such Claims, including providing adequate assistance and information at Penta Security’s expense.
6.2 Penta Security will have no obligation to the Customer to the extent that any Claim arises from:
(a) any modification to the Product by anyone other than people acknowledged by Penta Security;
(b) modifications made by Penta Security at the Customer’s request;
(c) use of the Product other than as specified in this Agreement or in the applicable Documentation;
(d) use of prior versions of the Product after an update has been provided by Penta Security to the Customer; or
(e) use of the Product in combination with third-party software, hardware, or data.
6.3 If a claim arises, or in Penta Security’s opinion is likely to arise, Penta Security may at its own expense obtain for the Customer the right to continue using the Product, modify the Product to make it non-infringing, or substitute another Product of substantially similar capability and functionality at no additional cost. If none of these options are reasonably available to Penta Security, Penta Security or the Customer may terminate this Agreement, and Penta Security shall refund to the Customer the license fee paid for the infringing Product, less a reasonable charge for the Customer’s use of the Product prior to such termination, based on a 3-year straight line depreciation.
THIS SECTION 6 STATES THE ENTIRE OBLIGATION OF PENTA SECURITY AND THE EXCLUSIVE REMEDIES OF THE CUSTOMER WITH RESPECT TO ANY CLAIMS OF INFRINGEMENT OR PROPRIETARY RIGHTS VIOLATIONS.
7.1 IN NO EVENT SHALL PENTA SECURITY OR THE CUSTOMER BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, EXEMPLARY, INDIRECT, SPECIAL, OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS), OR BE LIABLE TO ANY THIRD PARTY FOR ANY DAMAGES WHATSOEVER, EVEN IF SUCH PARTY HAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.2 Except as set forth in section 6, or for a breach of section 8, neither Penta Security’s nor the Customer’s entire liability under this Agreement for any damages from any cause whatsoever, regardless of form or action, whether in contract, negligence, or otherwise, shall in any event exceed an amount equal to all amounts paid by the Customer pursuant to this Agreement.
(a) publicly available through authorized disclosure,
(b) known by the receiving party at the time of disclosure as evidenced in writing,
(c) rightfully obtained from a third party who has the right to disclose it, or
(d) which is required by law, government order or request to be disclosed
Notwithstanding any of the above, the Customer acknowledges and agrees that the Product shall be deemed to constitute confidential information of Penta Security. Upon any termination of this Agreement, each party shall return to the other party all confidential information of the other party, and all copies thereof in the possession, custody, or control of the party, unless otherwise expressly provided in this Agreement.
9.1 This Agreement shall become effective (hereinafter referred to as the “Effective Date”) on the first date on which the Customer uses the Product and shall continue in effect until terminated as provided herein. Either party may terminate this Agreement by giving the other party written notice of such termination upon the other party’s breach of any material term (subject to the breaching party’s right to remedy this breach within 30 days of receipt of such notice), the other party’s insolvency, making an assignment for the benefit of creditor, receivership, or the institution of any similar proceedings by or against the other party.
9.2 Upon termination of this Agreement, the license granted to the Customer under this Agreement will revert to Penta Security and the Customer will cease all use of the Product. Within ten (10) business days of termination, the Customer will destroy or deliver to Penta Security all copies of the Product or any portion thereof in the Customer’s possession or under the Customer’s control, and an officer of the Customer will certify to Penta Security such destruction or delivery. The Customer’s failure to comply with the obligations of this section will constitute an unauthorized use of the Product, entitling Penta Security to equitable relief as provided in this Agreement, and other legal and equitable remedies. All sections of this Agreement, which by their nature should survive termination, shall survive any expiration or termination of this Agreement.
12.1 This Agreement constitutes the entire agreement of the parties, and supersedes any prior or contemporaneous agreements between the parties, with respect to the subject of this Agreement. Except as otherwise expressly provided herein, this Agreement may be modified only by a document signed by an authorized representative of each party.
12.2 It is the intent of the Customer and Penta Security that any dispute arising under this Agreement be resolved informally and as promptly as possible through good faith negotiation between the parties. Either party may initiate negotiation proceedings by written notice to the other party, setting forth the particulars of the dispute. The representatives for the parties shall communicate in good faith no later than 10 business days after receipt of such notice, to define the scope of, and a method to remedy the dispute. If such proceedings do not resolve the dispute (which may be so concluded by either party at any time), then authorized representatives of the Customer and Penta Security shall personally confer, within 21 days from the date on which one such representative contacts the other, in a bona fide attempt to resolve the matter.
12.3 This Agreement shall be governed by and construed in accordance with the laws of the country in which the Customer is located, exclusive of its conflict of law principles. Any dispute arising under or relating to this Agreement will be resolved in the applicable courts in Seoul, South Korea, and the parties hereby expressly consent to jurisdiction therein.
12.4 The prevailing party of the litigation proceedings shall be awarded reasonable attorneys’ fees, expert witness costs and expenses, as well as all other reasonable costs and expenses incurred directly or indirectly in connection with the proceedings, unless the court determines otherwise.
12.5 Nothing contained in this Agreement is intended or is to be construed to create a partnership, joint venture, or agency relationship. If any provision of this Agreement shall be declared invalid, illegal, or unenforceable, all remaining provisions shall continue in full force and effect.
12.6 Nothing in this Agreement shall be construed to limit or delay either Penta Security’s or the Customer’s ability to seek immediate relief under the law or in equity for any breach by the other, including a breach by the Customer of the license. No waiver of any rights herein shall be deemed to be a waiver of the same or other right on any other occasion.
15. Rent. The Customer may not rent, loan (free or for payment), hire out or sublicense the Product or any derivative work without prior notice to Penta Security, and neither of the parties may rent or lease this Agreement without the express written consent of the other party. The details are specified in a separate document.
16. Provision of Services to Third Parties. The Customer may not provide services to third parties using the Product without prior notice to Penta Security, and neither of the parties may provide this Agreement to third parties without the express written consent of the other party. The details are specified in a separate document.
17. Consent to Use of Data. The Customer agrees that Penta Security may collect, possess and use technical and diagnostic information, statistics of detection logs, and related information including but not limited to the information about the Product’s hardware, system and software, detection logs, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support, statistics report publication, and other services related to the Product provided by Penta Security's Intelligent Customer Support (ICS) system. Penta Security may use this information, as long as it is in a form that does not personally identify the Customer, to improve its products or to provide services or technologies to the Customer.