End User License Agreement of Exein Solutions
PLEASE CAREFULLY READ THIS END USER LICENSE AGREEMENT (“EULA”) BEFORE ACCESSING OR USING ANY EXEIN SOLUTIONS. THIS EULA IS ENTERED INTO BY AND BETWEEN EXEIN AND USER. IF YOU ARE ACCEPTING ON BEHALF OF YOUR EMPLOYER OR ANOTHER ENTITY, YOU REPRESENT AND WARRANT THAT: (I) YOU HAVE FULL LEGAL AUTHORITY TO BIND YOUR EMPLOYER, OR THE APPLICABLE ENTITY, TO THIS EULA; (II) YOU HAVE READ AND UNDERSTAND THIS EULA; AND (III) YOU AGREE, ON BEHALF OF THE PARTY THAT YOU REPRESENT, TO THIS EULA. ACCEPTANCE OF THIS EULA IS REQUIRED AS A CONDITION TO PROCEEDING WITH ACCESS AND/OR USE OF ANY EXEIN SOLUTION. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS EULA OR IF YOU DO NOT HAVE THE LEGAL AUTHORITY TO BIND YOUR EMPLOYER OR THE APPLICABLE ENTITY, DO NOT ACCESS AND/OR USE ANY EXEIN SOLUTION.
1. Foreword and Definitions
1.1 This EULA governs the User’s access and use of Exein’s Solutions incorporated into the Devices provided to the User by an Exein Customer. Exein and the User are hereinafter also referred to as the “Parties” and each a “Party”.
1.2 Terms with a capital letter in this EULA shall have the meaning set out below:
“Exein’s Customer” or “Customer”: means the natural or legal person who (directly or through its representative) lawfully acquires, from Exein or an Exein reseller, the right to incorporate the Software into its Devices for the purpose of making it available to End Users;
“Device Data” shall have the meaning indicated in Section 5;
“Device” means an electronic device (so-called “IOT” connected device, or other) into which one of the Exein Solutions has been incorporated;
“Exein”: Exein S.p.A. with registered office in Piazzale Flaminio 19, Rome;
“Monitoring Phase”: shall have the meanings indicated in Section 2.2;
“Exein’s Resources”: means all of Exein’s software and hardware resources (including physical or cloud servers), used to provide the Services to Customers and Users;
“Exein Solutions” or “Solutions”: means the software solutions developed by Exein and aimed at improving the security and resilience of software components permanently embedded in a Device, including the “Exein Runtime” and “Exein Analyzer” Solutions and any other present or future Solutions developed by Exein in the above context;
“User” or “End User”: means the natural or legal person who holds the Device in which an Exein Solution is incorporated.
2. Description of Exein Solutions
2.1 The Solutions operate in “Software-as-a-Service” (or “SaaS”) mode and provide for an exchange of information on an ongoing basis between the Device and Exein’s Resources. Activation of the Solutions is subject to certain technical prerequisites of the Devices (e.g. operating system and integrated circuit architecture), made available to the Customer by Exein and updated by Exein from time to time. The User shall provide suitable connectivity services to enable the full and efficient operation of the Devices.
2.2 During the so-called Monitoring Phase, the Solutions monitor the performance and behaviour of the Device in real time. The Solutions perform security detection and provide response capabilities based on the activity observed, both by enforcing static security policies and by detecting anomalies via artificial intelligence.
3. Acceptance, Subject Matter of the EULA and Updates
3.1 The EULA constitutes a legally binding contract between Exein and the User. The User’s acceptance of the EULA is deemed to have occurred at the time the User starts using a Device. In any case, this EULA is always available for consultation at the following link: exein.io/eula.
3.2 Exein reserves the right to update and modify the EULA or the features of the Solutions at any time. Such update may be justified for various reasons, including, but not limited to, Exein’s need to evolve and improve its products or services, the need to update for technical or security reasons, the need to adapt to new regulations or IT security standards or other business needs.
3.3 The updates will be published by Exein on the following page on its website exein.io/eula with the indication of the User’s right to terminate this EULA within thirty (30) days, solely in case the modification of the Solutions has a significant negative impact on the User’s access to or use of the Solutions. The User will be notified of the presence of any updates via the Device with a notice of at least thirty (30) days before the update is effective. The User acknowledges that it is the sole responsibility of Exein’s Customer to set up the notifications on the Device in order to inform the User. Exein shall not be held responsible for any failure in terms of communication and information to the User which fall within the responsibility of Exein’s Customer.
3.4 By continuing to use the Solutions after the effective date of the updates to the EULA, the User accepts the change communicated by Exein.
4. User’s Obligations
4.1 The User will not use the Solutions, or any technical documents or other ancillary elements thereof, to
(a) disrupt, damage or restrict one or more Solutions, the servers or the network connected to the Solutions or violate the security measures, procedures, policies or rules of the network connected to the Solutions;
(b) intentionally or unintentionally violate any applicable local, state, national, or international law, or any rule, guidance, or regulations having the force of law (“Laws”), including without limitation the Laws applicable [in Italy,] in the country where the User is located or other Laws in any way applicable to the activities performed by the User;
(c) perform the following acts on the Solutions or any part thereof (including, but not limited to, the graphics): copying, decompiling, attempting to derive the source code, decoding, modifying, creating derivative software (except to the extent that such acts may not be prohibited under software copyright law);
(d) grant to any third party, under sub-license or otherwise, the right to use the Solutions.
4.2 The User shall not authorise any third party to perform actions that are not permitted under Section 4.1. In the event that the User, by virtue of its agreements with the Customer, allows a third party to use the Device, the User shall be responsible for compliance with this EULA by the third party authorised by it and will indemnify and hold harmless Exein with respect to any breach or alleged breach thereof[, also pursuant to Art. 1381 of the Italian Civil Code]. In the event of use of the Device by a third party, the latter shall in turn be considered a User within the meaning of Section 3.1.
4.3 In the event of violation or suspected violation by the User of this EULA, Exein shall be entitled to terminate this EULA and/or suspend access to any Solution with or without notice.
5. Intellectual Property
5.1 Subject to the terms and conditions of this EULA, Exein hereby grants to the User a personal, worldwide, royalty-free, non-exclusive, non-transferable, non-assignable, non-sublicensable license to use the Exein Solutions as incorporated into the Device by an Exein Customer.
5.2 The Solutions and the technology and software underlying the Solutions or distributed in connection therewith are proprietary material of Exein and its licensors (collectively, the “Exein Technology”), and are subject to protection by intellectual property rights, including copyright. This EULA creates no rights of ownership in the Exein Technology in favor of Customer or End User. Exein owns, and shall own, all right, title and interest (including all copyrights, patents, trademarks, trade names, trade secrets and other intellectual and proprietary rights) in the Exein Technology (and all components thereof), and all improvements, ideas, know-how, developments or derivatives related to any of the foregoing. End User agrees not to copy, modify, create a derivative work of, reverse engineer, reverse assemble, or otherwise attempt to discover any source code, or sell, assign, sublicense, or otherwise transfer any right in any Exein Technology. Any rights not expressly granted herein are reserved by Exein.
5.3 The User acknowledges and agrees that, if provided for in the agreements in place between Exein and the Customer, system data present on the Devices, collected, collated and organised by the Solutions during the Monitoring Phase and sent to Exein’s systems (the “Device Data”) may be used to enable the continuous improvement of the same system and of the Solutions through the analysis of such Device Data. Device Data will not include personal data.
6. Processing of Personal Data and IT Security
Exein shall process any personal data collected in compliance with the applicable data protection legislation (EU Regulation 2016/679 “GDPR”), the Italian Privacy Code (Legislative Decree 196/2003) and any other legislation applicable from time to time. By way of clarification, the use of the Solutions by Users does not entail the collection of their personal data.
7. Disclaimers
7.1 USER’S USE OF THE SOLUTIONS IS AT USER’S SOLE RISK. THE SOLUTIONS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXEIN EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
7.2 EXEIN MAKES NO WARRANTY THAT (A) THE SOLUTIONS WILL MEET THE USER’S REQUIREMENTS; (B) THE SOLUTIONS WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SOLUTIONS WILL BE ACCURATE OR RELIABLE; OR (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SOLUTIONS WILL MEET YOUR EXPECTATIONS.
7.3 EXEIN CANNOT AND DOES NOT GUARANTEE THE IMMUNITY OF DEVICES FROM EXTERNAL THREATS SUCH AS MALWARE, VIRUSES OR OTHER FORMS OF CYBER ATTACKS.
7.4 Without prejudice to the indications provided by Exein to the Customer on the technical prerequisites of the Devices, the assessment of the compatibility of the Devices with the Solutions and the suitability of the latter for the Customer’s and Users’ needs, including specific needs related, for example, to the business sector of the Customer and/or Users, to any peculiarities of the Devices and to any requirements in terms of compliance with sector regulations applicable to the Customer and/or Users, shall be the Customer’s responsibility. The Customer shall also be responsible for the activation and configuration of such Devices and shall be liable for any damage caused to the Devices and/or Users in the event of incorrect performance of its obligations.
8. Limitation of Liability
8.1 USER EXPRESSLY UNDERSTANDS AND AGREES THAT EXEIN WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING DAMAGES FOR LOSS OF GOODWILL, USE, OR DATA OR OTHER INTANGIBLE LOSSES (EVEN IF EXEIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, RESULTING FROM: (A) THE USE OR THE INABILITY TO USE ANY SOLUTIONS; (B) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (C) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OR THROUGH ANY SOLUTIONS; OR (D) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL THE COMPANY PARTIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION EXCEED THE AMOUNT PAID BY THE USER TO THE CUSTOMER AS LICENSE FEE FOR THE USE OF THE SOLUTIONS IN THE 12 (TWELVE) MONTHS PRECEDING THE ALLEGED DAMAGING EVENT OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
9. Export
User will comply strictly with all applicable laws and regulations, including but not limited to the U.S. Foreign Corrupt Practices Act and all applicable export laws, restrictions, and regulations of any United States or foreign agency or authority and agrees not to export or re-export, or allow the export or re-export of any product, technology or information it obtains or learns pursuant to this EULA (or any direct product thereof) in violation of any such laws, restrictions or regulations. User acknowledges that it has the responsibility to obtain and maintain all governmental approvals, consents, licenses, authorizations, declarations, filings and registrations as may be necessary or advisable for the performance of the terms and conditions of this EULA, including export licenses and fair trade approvals.
10. Duration, Termination and Withdrawal
10.1 The contractual relationship between Exein and the User begins when the User starts using the Device on which an Exein Solution is installed, which is deemed acceptance of the EULA pursuant to Section 3. and lasts until the moment of the uninstallation of the Solution from the Device or the decommissioning of the Device, which may occur at any time at the discretion of the User and/or the Customer, without prejudice to the respect of the User’s obligations towards the Customer and without prejudice to Exein’s right to terminate the contract in the event of a breach of the User’s obligations under Section 4.3.
10.2 Exein may also decide in the future to permanently discontinue one or more of its Solutions. In such a case, Exein shall give Customers reasonable notice of its intention to discontinue providing the Solutions in question, and in any case shall post a notice to that effect on its website exein.io/eula. The termination of the Solutions licensed under this EULA shall result in the termination of the same.
11. Applicable Law and Jurisdiction
11.1 For Users residing in Europe:
[The law applicable to this EULA, its interpretation and any dispute relating thereto shall be Italian law, excluding the provisions on conflict of laws. Any dispute relating to this Contract shall be deferred to the exclusive jurisdiction of the Court of Rome. Pursuant to Article 1341 of the Italian Civil Code, the User expressly declares his or her acceptance of the provisions of Sections 7 (Exein’s liability), 10 (Duration, termination and withdrawal), and 11 (Applicable law and jurisdiction).]
11.1 For Users residing outside of Europe:
The law applicable to this EULA, its interpretation and any dispute relating thereto shall be the laws of the State of California, USA, excluding the provisions on conflict of laws. With respect to any dispute relating to this EULA, User and Exein submit to the personal and exclusive jurisdiction of the state and federal courts located within the County of San Francisco, California, USA.