Recon Group End User License Agreement

READ THIS AGREEMENT BEFORE DOWNLOADING, INSTALLING, OR USING

You must carefully read and understand all the terms and conditions in this End User License Agreement (the “Agreement”) prior to opening, installing, or using the product and/or the proprietary materials with which this Agreement was provided (the “Software,” more particularly defined below). By clicking the “Accept” button below, or by completing the download and/or installation process which is displaying this Agreement (the “Installation”), or by using the Software, you are:

• Creating a binding legal agreement between yourself or the entity on whose behalf you are installing or using the Product (“Licensee”), and Recon Networks, LLC (“Recon”); and
• Representing that you have read and understood and have been authorized to accept the terms of the Agreement on behalf of the Licensee;
• Agreeing that Licensee will be bound by the terms and conditions of this Agreement.

If you are not authorized to agree, or do not agree to these terms, then Recon refuses to permit access to, license of, or the installation and use of the Software, and any installation or use of the Software shall constitute a violation of applicable intellectual property laws and conventions.

1. DEFINITIONS
   1. “Software” means the object code copy of Recon’s proprietary network packet reconstruction software, and any included third-party software, provided by Recon as part of the Installation, together with Software Updates and any accompanying Documentation.
   2. "Documentation" means the user guides and manuals for installation and use of the Software regardless of format.
   3. “Software Update” (or “Update”) means any error corrections, fixes, patches, new versions, new releases, modifications, functional improvements or replacement of the Software made available to Licensee at Recon’ discretion (if at all) during the term of a separate maintenance and support services contract between Recon and Licensee.
2. GRANT OF LICENSE
   1. Effective upon payment of the applicable license fees (if any) stated in the purchase order which Recon has accepted prior to making available this Installation (the “Order”) of the Software, and subject to the terms and conditions of this Agreement, Recon grants to Licensee a personal, non-exclusive and non-transferable license to use the Software and related Documentation in object code form for use on Licensee’s own local area or wide area network, solely for Licensee's internal business purposes and, and subject to any additional use rights or restrictions set forth in the Order.
   2. If the Order states that the Software is licensed for a limited term (a “Term License”), the duration of the license granted under this Agreement will be as stated in the Order.
   3. The Software may contain third party software. Any third party software is not licensed under this Agreement, and its use is subject to the separate license terms and conditions required by its licensors, as set forth in the Documentation or in the installation process (separate from this Installation) for such third party software. Such third party software may only be used in conjunction with Licensee’s use of the Software under the terms of this Agreement, except to the extent that a third party licensor may expressly permit in its separate license terms and conditions.
3. USE RESTRICTIONS
   1. Licensee agrees to abide by any restriction stated in the Order that may limit its use of the Software to a specific number of Software instances, or to a specific number or pool of named users, or to specific network domains or network nodes, or to specific systems or platforms.
   2. Licensee shall not: (i) copy all or part of the Software or use the Software (including the Documentation) except as specified in this Agreement; (ii) modify, alter, adapt, enhance, improve, revise, correct errors in, or create derivative works of the Software or any part thereof, (iii) cause or permit the reverse engineering, de-encryption, disassembly or de-compilation of the Software or otherwise attempt to create the source code from the Software or gain access to trade secrets or confidential information of Recon or its licensors; (iv) remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Software or Documentation; (v) rent, lease, sell, assign, transfer, distribute or sublicense the Software or any part thereof or permit access to the Software by third parties or use the Software for service bureau or time-sharing purposes or as an application service provider or in the form of software as a service; (vi) use the Software for competitive analysis or permit publication or distribution of functionality or performance testing of the Software without express prior written consent of Recon; (vii) remove, disable, circumvent or otherwise create or implement any workaround to any technological copy protection or other security features designed to prevent unauthorized use (including use beyond the end of a Term License) of the Software; or (viii) permit any third party to do any of the foregoing.
   3. Notwithstanding the restrictions in this Section, Licensee may make a reasonable number of backup copies of the Software and Documentation, to the extent Licensee may reasonably require for its internal use and as part of its disaster recovery planning, provided such archival copies are not used actively in production and that Licensee complies with any production except in the event of a disaster or fail over and/or backup instance limitations set forth in the Order.
4. RESERVATION OF RIGHTS
   1. As between Licensee and Recon, all rights, title and interest in the Software, including any and all copyrights, patent rights, trade secrets, trademarks, service marks, trade names, trade secrets, know-how and any other statutory or common law intellectual property or other proprietary rights related to the Software, existing anywhere in the world and whether or not registered or capable of registration, including the design, manufacture, operation or service of the Software, are owned by Recon or its licensors. Recon’s third party licensors retain all right, title and interest in the third party software, including all copyright and other intellectual property rights.
   2. The Software is licensed and not sold, and all license rights shall immediately and automatically terminate if this Agreement is terminated and all rights to the Software shall revert to Recon and its licensors. There are no implied licenses under this Agreement, and all rights in and to the Software not expressly granted to Reseller in this Agreement are reserved by Recon or its licensor.
   3. The Software and Documentation are “Commercial Item(s),”as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. If the Software is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), the Software and Documentation are licensed to U.S. Government end-users (a) only as Commercial Items and (b) with only those rights as are granted to all other end-users pursuant to the terms and conditions of this Agreement.
5. AGREEMENT EXCLUSIONSLicensee acknowledges and agrees that Recon has no obligation to provide any of following, except to the extent specifically procured by Licensee under separate agreement(s):
   1. Support and maintenance services (including any entitlement to Software Updates);
   2. Software implementation, installation, or configuration services;
   3. Software Training; nor
   4. Any other professional or consulting services.
6. CONFIDENTIALITY AND COMPLIANCE
   1. Licensee acknowledges that the Software and the Documentation contain proprietary and confidential information and trade secrets of Recon (“Confidential Information”). Confidential Information does not include (i) information already known to or independently developed by Licensee; (ii) information in the public domain through no wrongful act of Licensee; or (iii) information Licensee received from a third party who is free to disclose it.
   2. Licensee may use Confidential Information only as part of its expressly permitted use of the Software under this Agreement, and shall use at least the same degree of care in safeguarding the Confidential Information as Licensee uses in safeguarding Licensee’s own confidential information, but in no event less than a reasonable standard of care. Licensee shall immediately notify Recon of any inappropriate use or disclosure of Confidential Information. Licensee acknowledges that violations of the provisions of this Section shall cause irreparable harm to Recon which cannot be adequately compensated by monetary damages. In addition to any other legal remedies, Licensee agrees that Recon shall be entitled to injunctive relief to prevent any actual or threatened violation of this Agreement.
   3. Except as otherwise permitted in writing by Recon, Licensee shall not provide access to, transmit or otherwise make available, the Software and the Documentation or any part or any copy thereof to any third party, except for Licensee’s personnel (to include its agents and contractors who are not Recon competitors) having a need-to-know for purposes of operating or maintaining the Software. Licensee will ensure that any agents or contractors who are to access the Software on behalf of Licensee will, as a condition precedent to gaining access, agree in writing to be bound by the terms and restrictions of this Agreement (including confidentiality terms not less protective of Recon’s Confidential Information than this Section), and Recon shall be an expressly intended third party beneficiary of any such agreement.
   4. Licensee shall comply, at its sole expense, with all applicable Federal, State and local laws, regulations and rules relating to its use of the Software, including without limitation privacy and data protection laws. Licensee agrees to indemnify, defend and hold harmless Recon and its shareholders, directors, officers, employees, agents and affiliated companies from and against any losses, costs, or damages (including reasonable attorneys’ fees and litigation costs) resulting from or in connection with (i) Licensee’s failure to comply with applicable laws, (ii) Licensee’s breach of any individual’s right to privacy or publicity, (iii) any misuse by Licensee of information collected through use of the Software, and (iv) Licensee’s misuse of the Software. Upon commercially reasonable notice, Recon and/or its licensors may audit Licensee’s compliance with this Agreement. Licensee shall provide reasonable assistance and access to its systems, networks, and records in support of such audit.
7. TERM AND TERMINATIONThis Agreement shall remain effective until the expiration of the Term License, or until it is terminated by Recon or Licensee (as permitted hereunder), whichever is sooner. Licensee may terminate this Agreement by permanently destroying and/or returning to Recon all copies of the Software. This Agreement and any rights granted to Licensee will terminate immediately if Licensee fails to comply with the terms of this Agreement. Upon termination or expiration of this Agreement, the licenses granted hereunder shall terminate immediately, Licensee shall promptly cease all use of the Software, and Licensee shall permanently destroy and/or return to Recon all copies of the Software and any Confidential Information (including all print and electronic copies) in Licensee’s possession or control, and certify that it has complied with the foregoing requirements.
8. LIMITED WARRANTY – Why do we need to offer this? Can we offer this without warranty?
   1. THE SOFTWARE IS PROVIDED “AS IS” AND WITH ALL FAULTS, AND RECON DISCLAIMS ALL OTHER WARRANTIES REGARDING THE SOFTWARE, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TIMELINESS, ACCURACY, COMPLETENESS, RESULTS, AND IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. RECON DOES NOT WARRANT THAT THE SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR FREE FROM ALL DEFECTS OR ERRORS, OR THAT THE SOFTWARE WILL WORK IN COMBINATION WITH ANY HARDWARE OR SOFTWARE PROVIDED BY THIRD PARTIES OR IN ANY PARTICULAR NETWORK ENVIRONMENT. THERE IS NO WARRANTY OF QUIET ENJOYMENT, OR AS TO THE ACCURACY OR COMPLETENESS OF ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN (DIRECTLY OR THROUGH ITS AGENTS) BY RECON. RECON DOES NOT WARRANT OR GUARANTEE THE SECURITY OF LICENSEE’S COMPUTER SYSTEMS OR DATA OR NETWORK, OR THAT LICENSEE’S COMPUTER SYSTEMS OR NETWORKS ARE IMMUNE FROM HARMFUL OR UNAUTHORIZED EXTRUSIONS, INTRUSIONS, OR ANY OTHER SECURITY EXPOSURE OR INCIDENTS OR DISRUPTIONS.
9. LIMITATION OF LIABILITY
   1. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL RECON OR ITS LICENSORS OR AGENTS BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, MULTIPLE OR PUNITIVE DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF GOODWILL, LOST OR DAMAGED DATA, LOSS OF SOFTWARE, DOWNTIME OR COSTS OF SUBSTITUTE PRODUCTS) ARISING FROM THE LICENSE, DELIVERY AND/OR USE OF THE SOFTWARE OR ANY OTHER ACT OR OMISSION OF RECON IN CONNECTION WITH THIS AGREEMENT REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF RECON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
   2. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL RECON BE LIABLE FOR DAMAGES HEREUNDER IN EXCESS OF AGGREGATE LICENSE FEES (IF ANY) ACTUALLY RECEIVED BY RECON IN CONNECTION WITH THIS AGREEMENT. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER CLAIM OR INCIDENT. THE LIMITATIONS IN THIS SECTION SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
10. INFRINGEMENT CLAIMS
    1. Subject to the exclusions set forth below in this section, Recon will defend, at its expense with counsel of its choice, any third party claim, suit or proceeding (“Claim”) brought against Licensee alleging that the Software, in the form delivered by Recon to Licensee, infringe a United States copyright or trade secret of such third party and will pay directly or indemnify Licensee for all damages and costs finally awarded against Licensee regarding such Claim or amounts agreed to in a monetary settlement of such Claim, provided that Licensee shall have (i) notified Recon promptly of the Claim; (ii) cooperated fully with Recon in the defense of such Claim; and (iii) given Recon sole and exclusive control over the defense and settlement of such Claim.
    2. If Licensee’s use of the Software as contemplated in this Agreement is enjoined or if Recon believes it is commercially practicable to do so, Recon may, at its sole election and expense: (i) obtain for Licensee the right to continue using the Software; (ii) replace the Software with non- infringing, functionally equivalent Software; (iii) modify the Software to render it non- infringing, or (iv) terminate this Agreement and all licenses granted hereunder and refund Licensee a pro-rated portion of any prepaid license fees, amortized on a straight line basis over three years from the Installation date.
    3. Recon shall have no liability to Licensee with respect to any infringement claim: (i) relating to any third party software contained in or distributed together the Software, (ii) that is based upon or results from the combination of Software with equipment, devices, firmware or software not furnished by Recon, where the alleged infringement arises due to such combination, (iii) that results from any modification of Software after Installation (other than by Recon); (iv) attributable to changes or customizations to the Software made at Licensee’s direction, or (v) which would have been cured but for Licensee’s failure to install or have installed changes or revisions or updates in accordance with Recon’ instructions. This Section states the sole and exclusive remedy of Licensee and liability of Recon with respect to claims of infringement of any third party intellectual property rights.
11. NON-COMMERCIAL USEIf an Order describes the Software being provided to Licensee as for “Non-Commercial Use Only”
    1. The license granted in this Agreement is a revocable license. Notwithstanding Section 2, during the Evaluation Period, Licensee may use the Software and the Documentation only for evaluation or for personal purposes that are not related to licensee’s employment.
    2. The software may not be installed on hardware owned by licensee’s employer.
    3. The software may not be connected to a network that is owned or operated by licensee’s employer.
    4. In its discretion, Recon may (but shall be under no obligation to) provide installation or other technical support during the Evaluation Period. The provision of any such support shall not obligate Recon to continue providing any support, nor to resolve any problems relating to the Software.
    5. SOFTWARE PROVIDED FOR EVALUATION IS PROVIDED “AS-IS,” WITH ALL FAULTS, AND WITHOUT REPRESENTATIONS, WARRANTIES, INDEMNITIES OR ASSURANCES OF ANY KIND, AND LICENSEE ASSUMES THE ENTIRE RISK OF ITS USE.
12. MISCELLANEOUS
    1. Independent Contractors. Recon and Licensee are independent contractors, and nothing contained in this Agreement shall be construed as creating a partnership, joint venture or agency relationship.
    2. Assignment. Licensee may not assign any of Licensee’s rights or obligations under this Agreement without the prior written consent of Recon. Recon may assign, delegate and/or otherwise transfer this Agreement or its rights and obligations to any person or entity.
    3. Governing Law and Jurisdiction. This Agreement is governed by the internal laws of the Commonwealth of Virginia, without reference to its conflict of law principles. The Uniform Computer Information Transactions Act does not apply to this Agreement.
    4. Waiver. A waiver of any breach or default under this Agreement shall not constitute a waiver of any other right for subsequent breach or default.
    5. Severability. The provisions of this Agreement are intended to be severable, and the unenforceability of any one or more provisions shall not affect the enforceability of any other provisions.
    6. Entire Agreement. This Agreement sets forth the entire agreement and understanding between Recon and Licensee regarding the subject matter hereof and supersedes any prior or contemporaneous representations, advertisements, statements, proposals, negotiations, discussions, understandings, or agreements regarding its subject matter. In the event of a conflict between this Agreement and the Order, this Agreement shall prevail. This Agreement may not be modified or amended except by a single writing signed by both Recon and Licensee.
    7. Survival. Any provision of this Agreement which contemplates performance or observance subsequent to any termination or expiration of this Agreement shall survive any termination or expiration of this Agreement and continue in full force and effect.