Ping Castle SAS

End User License Agreement

Updated August 1, 2024

 

PLEASE READ THIS AGREEMENT CAREFULLY. YOU MUST REVIEW AND EITHER ACCEPT OR REJECT THE TERMS OF THIS EULA BEFORE DOWNLOADING, INSTALLING OR USING THE SOFTWARE. BY CLICKING THE “I ACCEPT” BUTTON, DOWNLOADING, INSTALLING OR OTHERWISE USING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ ALL OF THE TERMS AND CONDITIONS OF THIS EULA, UNDERSTAND THEM, AND AGREE TO BE LEGALLY BOUND BY THEM. THIS AGREEMENT IS ENFORCEABLE AGAINST YOU AND THE ENTITY ON WHOSE BEHALF THE SOFTWARE IS USED (FOR EXAMPLE, IF APPLICABLE, YOUR EMPLOYER). If Licensee downloads the Software as an upgrade to an existing software product from Ping Castle, Licensee agrees that the terms of this Agreement will apply to such software product, as upgraded and that these shall be the only terms and conditions applicable to such upgraded Software. Ping Castle may update the terms of this Agreement at any time in its sole discretion. Ping Castle will notify Licensee of any such updates and Licensee’s continued use of the Software after such notice will constitute Licensee’s agreement to the updated terms. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT CLICK THE “I ACCEPT” BUTTON, DOWNLOAD, INSTALL OR USE THE SOFTWARE.

This end user license agreement (the “Agreement“) is made by and between Ping Castle SAS, (“Ping Castle“), a French société par actions simplifiée, and the entity on whose behalf the Software is used (“Licensee”) (each a “Party” and together the “Parties”). This Agreement, together with any documents incorporated herein by reference, sets forth all terms and conditions applicable to use of the Software by Licensee.

DEFINITIONS. All capitalized terms used herein shall have the definitions attributed to them in this section or elsewhere in this Agreement.

      • A. “Affiliate” means an entity controlled by, under common control with, or controlling a Party, with “control” meaning an ownership interest greater than fifty percent.
      • B. “Software” means the Ping Castle proprietary licensed computer software program(s) downloaded and/or installed, pursuant to this Agreement, and the Documentation. The term Software includes Trial Software and Subscription Software.
      • C. “Beta Software” means a version of Software prior to a generally available commercial release which Ping Castle makes available to Licensee for purposes of Ping Castle’s development and testing in advance of a generally available commercial release.
      • D. “Trial Software” means Software downloaded for temporary evaluation purposes. The term “Trial Software” includes Beta Software.
      • E. “Subscription Software” means Software licensed with time limits, other than Trial Software, pursuant to an Order.
      • F. “Documentation” means the technical documentation provided with the Software or otherwise made available to Licensee by Ping Castle at https://www.pingcastle.com/documentation/, excluding links to any information or data at a different URL.
      • G. “Services” means the Ping Castle proprietary services provided remotely in relation to the Software pursuant to an Order. The term “Services” includes Maintenance Services.
      • H. “Maintenance Services” means any remote maintenance and support services provided to Licensee.
      • I. “Quote” means any quote issued by Ping Castle for Software or Maintenance Services.
      • J. “Order” means any order for Software or Services, including a signed Quote or other document in accordance with a Quote, or as otherwise indicated in this Agreement.

    SECTION 1. SOFTWARE.

    1.1 Software.

    1.1.1 Trial Software. The term of the license for Trial Software is thirty (30) days from the Trial Software installation date (“Evaluation Period“). Licensee may use the Trial Software during the Evaluation Period solely for the purpose of evaluating whether to purchase a license to the Software. Licensee can only obtain one Evaluation Period per release of the Software unless Ping Castle, in its sole discretion, grants an extension of the Evaluation Period. There is no fee for Licensee’s use of the Software in accordance with this Agreement during the Evaluation Period, however, Licensee is responsible for any applicable shipping charges or taxes which may be incurred under this Agreement, and any fees which may be associated with usage beyond the scope permitted herein. Ping Castle sales representative may contact Licensee after the download to discuss Licensee’s purchase of a license.

    1.1.2 Subscription Software. The term of the license for Subscription Software shall begin and end on the dates set forth in the Order (the “Subscription Term”), unless terminated in accordance with this Agreement or an amendment hereto. Any Subscription Software will automatically renew for subsequent terms of the same duration as the initial Subscription Term and at the same quantities in use at the end of the then-current Subscription Term, unless Licensee notifies Ping Castle in writing that it will not renew at least sixty (60) days in advance of the end date of the then-current term. Ping Castle reserves the right to increase fees for each renewal, which increases will be communicated to Licensee prior to expiration of the then-current term. In the event a Subscription Term expires without renewing automatically or being otherwise renewed by Licensee, then Licensee must pay a fee equal to ten percent (10%) multiplied by the fees applicable to the last year of the most recent Subscription Term in order to reinstate its use of the Subscription Software (the “Subscription Reinstatement Fee”). For the avoidance of doubt, the Subscription Reinstatement Fee is in addition to fees for use of the Subscription Software itself.

    1.1.3 License Grant to Software. Subject to the terms and conditions of this Agreement and, when applicable, the Order, Ping Castle hereby grants to Licensee, and Licensee accepts from Ping Castle, a non-exclusive, non-transferable and non-sublicensable right to install, use, access, run, or otherwise interact with one copy of the Software for Licensee’s and its Affiliates own internal business operations and in accordance with the Documentation. Licensee may make a reasonable number of additional copies of the Software (excluding Trial Software) solely for non-productive, archival purposes; provided that, the original productive and non-productive copies of the same license are not in use at the same time and each copy contains all titles, trademarks, copyrights and restricted rights notices as in the original, and is not provided to any third party. The Software is provided in binary code only. Nothing in this Agreement entitles Licensee to receive source code for the Software. Licensee is responsible for its Affiliates’ compliance with this Agreement and any breach of this Agreement by its Affiliates, and Licensee accepts full liability for all acts and omissions of its Affiliates as if such act or omission was that of Licensee.

    1.2 Restrictions. Licensee may not: (a) modify the Software or any portion thereof in any manner; (b) reverse engineer, decompile, disassemble, modify, adapt, rent, lease, loan or create derivative works based upon the Software or any part thereof; (c) use the Software as a managed service provider, application service provider, software as a service basis, or in any commercial time share arrangement, or in any other activity intended to directly produce revenue without the prior written consent of Ping Castle; (d) resell the Software licensed hereunder or use the Software to provide consulting or training services to third parties; (e) assign the Software to a third party for use in managing Licensee’s environment without the prior written consent of Ping Castle; or (f) install, use, or run the Software in any third party facility, or to enable others to do so (provided that, Licensee may install, use, or run the Software in a third party data center on servers (physical or virtual) that it owns, leases, or otherwise controls). Licensee represents and warrants to Ping Castle that Licensee shall not, and shall not permit any other person to: (x) use the Software for purposes of (i) benchmarking or competitive analysis of the Software, (ii) developing, using or providing a competing software product or service, or (iii) any other purpose that is to Ping Castle’s detriment or commercial disadvantage; (y) copy the Software in whole or in part; and (z) use the Software in violation of any law, regulation or rule.

    1.3 U.S. Government Users. The Software is a “commercial item”, 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. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (or an equivalent provision, e.g., in supplements of various U.S. government agencies, as applicable), all U.S. Government users acquire the Software with only those rights set forth herein. The manufacturer is Ping Castle SAS, 1 Place Boieldieu, 75002 Paris, France.

    1.4 Export Law Assurances. Licensee shall not export or re-export, or allow the export or re-export of the Software or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of France, the United States, or other applicable foreign agency or authority.

    1.5 Locking Mechanism. Trial Software and Subscription Software include a locking mechanism that automatically will prevent Licensee’s use of such Software following the expiration of the applicable license term. Licensee may not disrupt, disable or interfere with the locking mechanism, and may not use such Software following the expiration of the applicable license term unless Licensee purchases a license, in the event of Trial Software, or a renewal license, in the event of Subscription Software, from Ping Castle.

    1.6 Reservation of Rights. Ping Castle reserves all rights, implied or otherwise, which are not expressly granted to Licensee hereunder. The Software is licensed only, not sold, and Ping Castle retains all ownership of and all rights, title and interest in and to the Software including, without limitation, all intellectual property rights, excluding only any third-party components incorporated therein.

    SECTION 2. SERVICES.

    2.1 Maintenance Services.

    2.1.1 Scope of Maintenance Services. The scope of the Maintenance Services is as follows: Ping Castle shall make available to Licensee via web download new versions and releases of the Software, including Software corrections, enhancements and updates, if and when Ping Castle makes them generally available without charge to licensees of the Software.

    2.1.2 Maintenance Services Term. Ping Castle will make available the Maintenance Services beginning and ending on the dates set forth in the Order (the “Maintenance Services Term”); provided that, Ping Castle may deny Maintenance Services if it has not received the applicable fees.

    SECTION 3. CONFIDENTIALITY AND PRIVACY.

    3.1 Confidentiality. “Confidential Information” means information not generally available to the public disclosed by a Party (“Disclosing Party”) as a result of this Agreement, to which the other Party (“Receiving Party”) gains access to or knowledge of. Ping Castle’s Confidential Information includes the Software (in source code and/or object code form) and test results regarding the functionality and performance of the Software (whether such tests are conducted by or on behalf of Ping Castle or Licensee), trade secrets, know-how and any proprietary tools, proprietary knowledge or proprietary methodologies of Ping Castle and/or its Affiliates. Licensee’s Confidential Information includes information marked “confidential” when disclosed by Licensee to Ping Castle or other information disclosed by Licensee which a reasonable person would understand to be confidential under the circumstances of disclosure. The Receiving Party shall hold Confidential Information of the Disclosing Party in trust and confidence, and shall use commercially reasonable efforts to avoid use, reproduction, publication, disclosure, or distribution except as specifically authorized by this Agreement or as reasonably required for performance of its obligations under this Agreement. The obligations of either party under this Agreement will not apply to information that the Receiving Party can demonstrate, at the time of disclosure or when made available by Disclosing Party, (i) was already in its possession without restriction as to confidentiality, (ii)  was already available to the public or after disclosure becomes available to the public through no breach of agreement by Receiving Party, or (iii) has been received from a third party without restriction on disclosure and without known breach of agreement. If Receiving Party is required to disclose Confidential Information of the Disclosing Party by law, regulation or order of a court of competent jurisdiction or other governmental authority, then the Receiving Party shall furnish prompt written notice of such required disclosure and reasonably cooperate with the Disclosing Party, at the Disclosing Party’s cost and expense, in any effort made by the Disclosing Party to seek a protective order or other appropriate protection of its Confidential Information. In the event that such order or protection is not obtained, the Receiving Party may furnish only that portion of the Confidential Information which, on the written advice of the Receiving Party’s counsel, is legally required to be disclosed and, upon the Disclosing Party’s request, use its commercially reasonable efforts to obtain assurances that confidential treatment will be accorded to such information.

    3.2 Suggestions. To the extent Licensee provides or otherwise communicates any suggestions, enhancement requests, recommendations or otherwise provides feedback on the Software or Services (collectively, “Comments”), Licensee hereby grants Ping Castle a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual, unrestricted license to use and/or incorporate the Comments and all underlying ideas contained in the Comments into the Software or Services (or other product or service offerings) and create any derivative works thereof.

    SECTION 4. WARRANTIES.

    4.1 “AS-IS” Warranty for Trial Software. LICENSEE AND PING CASTLE AGREE THAT THE TRIAL SOFTWARE IS PROVIDED “AS IS” AND UNSUPPORTED, AND THAT PING CASTLE MAKES NO WARRANTY AS TO THE TRIAL SOFTWARE, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.

    4.2 Limited Software Warranty for Subscription Software. Ping Castle warrants that for a period of thirty (30) days from the date Ping Castle issues Licensee’s license keys for the Software: (i) the media provided by Ping Castle, if any, on which the Software (excluding Trial Software) is recorded will be free from material defects in materials and workmanship under normal use, and (ii) the Software (excluding Trial Software), as provided by Ping Castle, will substantially conform to the specifications in the Documentation applicable to such Software (collectively, the “Software Warranties”). Licensee must report in writing any breach of the Software Warranties to Ping Castle during the warranty period, and Licensee’s exclusive remedy, and Ping Castle’s sole obligation, for any such breach of warranty shall be for Ping Castle to either replace defective media and to correct or provide a workaround for reproducible errors that cause a breach of the Software Warranties within a reasonable time considering the severity of the error and its effect on Licensee or, at Ping Castle’s option, refund the license fees paid for the nonconforming Software upon return of such Software to Ping Castle and termination of the related license hereunder. The Software Warranties will not apply to the extent arising from: (a) modification of the Software; (b) use of the Software other than in accordance with the Documentation or in violation of this Agreement; (c) the combination of the Software with other elements not supplied by Ping Castle; or (d) Licensee’s failure to apply an update made available by Ping Castle as part of Maintenance Services or otherwise recommended by Ping Castle, which would have resolved the breach of Software Warranties.

    4.3 Disclaimer of Other Warranties. THE LIMITED WARRANTIES AS DESCRIBED IN THIS SECTION 4 ARE THE ONLY WARRANTIES PROVIDED TO LICENSEE. PING CASTLE AND ITS LICENSORS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO THE SOFTWARE, ANY ACCOMPANYING WRITTEN MATERIALS, AND ANY SERVICES.

    SECTION 5. REMEDIES.

    5.1 Limitation of Remedies and Damages. IN NO EVENT WILL PING CASTLE, ITS LICENSORS, ITS AFFILIATES, SUBSIDIARIES, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AFFILIATES BE LIABLE TO LICENSEE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY PUNITIVE, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND DATA AND THE LIKE), WHETHER FORESEEABLE OR UNFORESEEABLE, OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES, REGARDLESS OF THE BASIS OF THE CLAIM AND EVEN IF PING CASTLE OR A PING CASTLE REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. PING CASTLE’S CUMULATIVE LIABILITY FOR DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO NO GREATER THAN THE FEES PAID BY LICENSEE TO PING CASTLE DURING THE THREE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR THE SOFTWARE OR ANY SERVICES (EXCLUDING APPLICABLE TAXES AND PAYMENT FEES) THAT CAUSED THE DAMAGES. TO THE EXTENT THAT APPLICABLE LAW DOES NOT PERMIT THE EXCLUSION OR LIMITATION OF LIABILITY AS SET FORTH HEREIN PING CASTLE’S LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW. LICENSEE AGREES THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY (EXCEPT WHERE PROHIBITED BY STATUTE OR LAW), ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE SOFTWARE OR ANY SERVICES BROUGHT BY LICENSEE MUST BE FILED WITHIN NO LATER THAN SIX (6) MONTHS AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR SUCH CLAIM WILL BE FOREVER BARRED.

    5.2 Injunctive Relief. Licensee hereby expressly agrees that a remedy at law for any breach or attempted breach of the provisions of this Agreement may be inadequate and Ping Castle, in addition to any other rights or remedies, shall be entitled to seek injunctive and other equitable relief in the event of any such breach or attempted breach without having to: (i) post bond or other security to prevent a breach or continuing breach of this Agreement, or (ii) prove actual damages.

    5.3 WAIVER OF JURY TRIAL. LICENSEE HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THE SOFTWARE, THE SERVICES OR THIS AGREEMENT.

    SECTION 6. GENERAL.

    6.1 Partners. An Order may be submitted by Licensee or an authorized reseller or distributor of Ping Castle (each a “Partner”). When an Order is submitted by a Partner, Licensee will have a separate agreement with the Partner regarding Licensee’s payment obligations to the Partner and the Partner will have a separate agreement with Ping Castle regarding the Partner’s payment obligations to Ping Castle.

    6.2 Payment. Licensee or, when applicable, a Partner will pay Ping Castle for the Software and Services in accordance with the applicable Order. Any late payments will accrue an administrative fee of one and one-half percent (1.5%) of the outstanding balance per month or the maximum rate permitted by law. In the event Ping Castle engages a collection agency to collect any late payment, a collection fee of thirty percent (30%) of the outstanding balance plus any accrued administrative fees will be added.

    6.3 Termination. This Agreement, an Order, or a SOW may be terminated: (a) by mutual agreement of Ping Castle and Licensee; (b) by Licensee, upon thirty (30) days prior written notice to Ping Castle; or (c) by Ping Castle, if Licensee breaches this Agreement and fails to cure such breach to Ping Castle’s reasonable satisfaction within thirty (30) days following receipt of Ping Castle’s notice thereof. Upon any termination of this Agreement, Licensee shall immediately cease all use of the applicable Software, destroy all copies of the Software in Licensee’s possession and control, and certify in writing to Ping Castle within thirty (30) days after termination that Licensee has destroyed such Software and all copies thereof. Termination of this Agreement shall not limit Ping Castle from pursuing any remedies available to it, including injunctive relief, or relieve Licensee of its obligation to pay all fees that are identified in a Quote which Licensee has committed to with an Order or that have otherwise accrued or have become payable by Licensee under this Agreement, any Order, or any SOW.

    6.4 Survival. The provisions of this Agreement that by their nature are intended to survive termination or expiration of this Agreement shall survive any termination/expiration of the Agreement and remain in effect following such termination/expiration.

    6.5 Assignment. Ping Castle may assign or transfer its rights or obligations under this Agreement to an Affiliate. Licensee may not assign or transfer its rights or obligations under this Agreement without prior written consent by Ping Castle (which consent shall not be unreasonably withheld) and any purported assignment or transfer without Ping Castle’s written consent shall be null and void.

    6.6 Interpretation. This Agreement is governed by the laws of the State of Delaware without regard to its conflicts of laws and Licensee irrevocably agrees that any legal action or proceeding arising out of or relating to this Agreement brought by it will be brought and determined in the federal courts for the District of Delaware, or if there is no federal jurisdiction, by the state courts of Delaware, and Licensee hereby irrevocably agrees to submit to the exclusive jurisdiction of the aforesaid courts with regard to any such action or proceeding arising out of or relating to this Agreement or the Software. Notwithstanding the foregoing, if Licensee has a shipping address within the United Kingdom, the Republic of Ireland or another address within the European Union, this Agreement will be governed by and construed in accordance with the laws of England and Wales, without reference to the principles of conflicts of law, and the courts of England and Wales shall have exclusive jurisdiction to determine any dispute, legal action or proceeding arising out of or relating to this Agreement, including its subject matter and/or interpretation. The U.N. Convention of Contracts for the Sale of International Goods will not apply. Performance of any obligation required by a Party hereunder may be waived only by a written waiver signed by the other Party, which waiver shall be effective only with respect to the specific obligation described therein. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, that provision will be enforced to the maximum extent permissible, and the remaining provisions of this Agreement will remain in full force and effect. Ping Castle will not be liable for any delay or failure of performance, and no delay or failure of performance will constitute a default or give rise to any liability for damages if such delay or failure is caused by causes beyond Ping Castle’s control, including, without limitation, acts of God, war, terrorism, and civil disturbance.

    6.7 Entire Agreement. This Agreement, including any Order and SOW hereunder, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior agreements between the Parties, whether written or oral, relating to the same subject matter. Any contrary or supplemental terms or conditions on any purchase order or other document issued by Licensee is for administrative convenience only and shall not be binding upon Ping Castle, even if signed by Ping Castle. Performance will not constitute acceptance by Ping Castle of contrary or supplemental terms or conditions. Any amendment to this Agreement shall be binding upon the Parties only if such amendment references this Agreement and is executed by both Parties.