Nessus Download Agreement

Accept the Terms of Use to Begin Your Download

TENABLE NETWORK SECURITY, INC.
NESSUS(r) 
SOFTWARE LICENSE AGREEMENT

This is a legal agreement ("Agreement") between Tenable Network Security, Inc., a Delaware corporation having offices at 7063 Columbia Gateway Drive, Suite 100, Columbia, MD 21046 ("Tenable"), and you, the party licensing Software ("You").  This Agreement covers Your permitted use of the Software.  BY CLICKING BELOW YOU INDICATE YOUR ACCEPTANCE OF THIS AGREEMENT AND YOU ACKNOWLEDGE THAT YOU HAVE READ ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, UNDERSTAND THEM, AND AGREE TO BE LEGALLY BOUND BY THEM.  If You do not agree with the terms of this Agreement, You may not use the Software, as such term is defined below.  The Software can only be provided to You by Tenable.  The term "Agreement" includes any exhibits to the document.  The Subscription Agreement set forth in Exhibit A, which governs the use of Inclusive Plugins, if any, and the HomeFeed or Commercial Subscriptions (as each of those terms is defined in Exhibit A), is incorporated by reference.

1. Grant of Software License.  
       (a) Grant.  Subject to the terms and conditions, and Your acceptance, of this Agreement, Tenable grants to You a perpetual, non-exclusive, non-transferable license in object code form only to use the Software (i) solely for Your internal operations and internal security purposes to seek and assess information technology vulnerabilities and misconfigurations for Your own networks; and (ii) provided that You have received all required consents, to provide services to third parties to seek and assess information technology vulnerabilities and misconfigurations on the third party's network.  Any rights in the Software not granted in this Agreement are expressly reserved by Tenable. 
       (b) Definition of Software.  
              (i) The term "Software" means (i) Nessus 4.x or higher that You download from any Tenable website, including <a href="http://www.nessus.org">www.nessus.org</a>, or obtain via Tenable authorized CD or any other Tenable authorized method; (ii) the associated user manuals and user documentation, if any, as well as any patches, updates, improvements, additions, enhancements and other modifications or revised versions of Nessus 4.x or higher that may be provided to You by Tenable from time to time that were developed by Tenable; and (iii) any Nessus daemons, command line interfaces, web server or Nessus XMLRPC interface, and/or any graphical user interfaces You obtain from Tenable that were developed by Tenable.  
              (ii) Any software that is not marked as copyrighted by Tenable are not Software as defined under this Agreement and are subject to other license terms as described in the documentation.  For the avoidance of doubt, any libraries licensed under LGPL, if any, are not considered "Software."  
       (c) Limitation on use of the Software.  You may only use the Software with Inclusive Plugins, if any, or in connection with the HomeFeed or Commercial Subscriptions.  Any other use of the Software is prohibited.
              (i) Inclusive Plugins.  You may use the Inclusive Plugins, if any, that are provided to You along with the Software in accordance with Exhibit A; provided however, that You do not add any other plugins or Plugins (as defined in Exhibit A) to the Software or register the Software with any source of plugins or Plugins, whether self-updating or manually, including Plugins or plugins obtained from Tenable.  This Section does not limit any other restrictions on the Plugins and all other terms and restrictions regarding the Plugins remain in full force.
              (ii) Subscriptions.  You may obtain a Subscription to receive Plugins and updates to the Plugins as further described in Exhibit A.  Tenable does not provide any support services in connection with the license to the Software, but support services are included as part of the Commercial Subscription offered by Tenable.

2. Term.
       This Agreement commences on the date on which You execute this Agreement or download, install or use the Software (whichever occurs first) (the "Effective Date") and continues until it is terminated according to the terms of this Agreement.

3. Intellectual Property.  
       This Agreement does not transfer to You any title to or any ownership right or interest in the Software.  You acknowledge that Tenable owns and retains all right, title and interest in and to the Software.  All enhancements, modifications and derivative works that Tenable or any Tenable-authorized third party makes to the Software or accompanying documentation, and all intellectual property rights therein, will be the property of Tenable.  Your rights with respect to the Software are limited to the right to use the Software pursuant to the terms and conditions in this Agreement. 

4. No Reverse Engineering, Other Restrictions.  
       You may not directly or indirectly: (i) sell, lease, redistribute or transfer any of the Software on a stand-alone basis; (ii) decompile, disassemble, reverse engineer, or otherwise attempt to derive, obtain or modify the source code of the Software; (iii) reproduce, modify, translate or create derivative works of all or any part of the Software; (iv) rent, lease or loan the Software in any form to any third party; (v) remove, alter or obscure any proprietary notice, labels, or marks on the Software; or (vi) sell, resell, loan or otherwise provide access to third parties to the Nessus XMLRPC interface, Nessus client interface, or Nessus communication interface shipped by Tenable and provided to You.  You may not sublicense any of the rights granted to You in this Agreement.  You may not distribute or otherwise provide Software to third parties unless authorized to do so in writing by Tenable.  You are responsible for all use of the Software and for compliance with this Agreement; any breach by You or any user using the Software on Your behalf shall be deemed to have been made by You.  You may not copy the documentation as You agree it is provided to You under copyright protection.  You may not use the Software if You are, or You work for, a competitor of Tenable's in the network security software industry.  For the avoidance of doubt, You may not include or redistribute the Software on physical or virtual appliances to perform on-site scans.  

5. Restrictions on Third Party Use and Access.
       You may permit a third party (a "Third Party") to (a) use the Software to perform security services for Your business or (b) administer the Software, each provided that: (i) any such Third Party use or administration is for Your sole benefit and on Your behalf; (ii) You acknowledge that You shall be legally responsible for the Third Party's use of the Software including any obligations arising from such use and any breach by the Third Party of the terms and conditions of the Agreement, including Section 6 (Confidentiality); (iii) usage by You and the Third Party, when taken together, does not at any time exceed the usage restrictions imposed under this Agreement. Upon sixty (60) days' notice, Tenable shall have the right to withdraw its consent to the use of any Third Party in its reasonable discretion.  You agree not to deliver or otherwise make available the Software, in whole or in part, to any party other than Tenable, except for purposes specifically related to Your use of the Software, without Tenable's prior written consent.  You agree to use Your commercially reasonable efforts and to take all reasonable steps to ensure that no unauthorized parties have or use the Software and that no unauthorized copy, publication, disclosure or distribution of the Software, in whole or in part, in any form is made by You or any third party.  You agree to notify Tenable of any unauthorized access to, or use, copying, publication, disclosure or distribution of the Software.  

6. Confidentiality.  
       As used in this Agreement, "Confidential Information" means any and all information and material that:  (i) gives of Tenable some competitive business advantage or the opportunity of obtaining such advantage or is otherwise confidential or a trade secret; (ii) is marked "Confidential," "Restricted," or "Confidential Information" or other similar marking; (iii) is known by You to be confidential or proprietary; or (iv) from all the relevant circumstances, should reasonably be assumed by You to be confidential or proprietary.  Confidential Information includes Tenable's proprietary portions of the Software.  Confidential Information does not include any information that You can prove: (a) was already known to You without restrictions at the time of its disclosure by Tenable; (b) after its disclosure by Tenable, is made known to You without restrictions by a third party having the right to do so; (c) is or becomes publicly known without violation of this Agreement; or (d) is independently developed by You without reference to the Confidential Information.  Confidential Information will remain the property of Tenable, and You will not be deemed by virtue of this Agreement or any access to the Confidential Information to have acquired any right, title or interest in or to the Confidential Information.  You may not copy any Confidential Information without Tenable's prior written permission.  You may not remove any copyright, trademark, proprietary rights or other notices included in or affixed to any Confidential Information.  Other than using the Software in accordance with the terms of this Agreement, You may not use the Confidential Information for Your or a third party's benefit, competitive development or any other purpose.  You agree: (I) to hold the Confidential Information in strict confidence; (II) to limit disclosure of the Confidential Information to Your own employees having a need to know the Confidential Information for the purposes of this Agreement or those of any Third Party, as specified in Section 5; (III) not to disclose any Confidential Information to any third party other than to a Third Party as specified in Section 5; (IV) to use the Confidential Information solely and exclusively in accordance with the terms of this Agreement in order to carry out Your obligations and exercise Your rights under this Agreement; (V) to afford the Confidential Information at least the same level of protection against unauthorized disclosure or use as You normally uses to protect Your own information of a similar character, but in no event less than reasonable care; and (VI) to notify Tenable promptly of any unauthorized use or disclosure of the Confidential Information and to cooperate with and assist Tenable in every reasonable way to stop or minimize such unauthorized use or disclosure.  You agree that if a court of competent jurisdiction determines that You have breached, or attempted or threatened to breach, Your confidentiality obligations to Tenable or Tenable's proprietary rights, Tenable will suffer irreparable harm and that monetary damages will be inadequate to compensate Tenable for such breach.  Accordingly, Tenable, in addition to and not in lieu of any other rights, remedies or damages available to it at law or in equity, shall be entitled to seek appropriate injunctive relief and other measures restraining further attempted or threatened breaches of such obligations without requirement to post any bond.  Tenable does not offer support under this Agreement.  Accordingly, Tenable is not willing to accept any confidential information or any personal information from You under this Agreement.

7. Warranty and Disclaimer.  
       (a) Software.  Tenable warrants that, for a period of thirty (30) days from the Effective Date (the "Warranty Period"), the unmodified Software will, under normal use, substantially perform the functions described in its technical documentation.  If there is a breach of this warranty, then Tenable's sole obligation, and Your exclusive remedy, will be for Tenable, at its option, to correct the performance of the Software at no charge so that it substantially performs the functions described in its technical documentation or to replace the Software.  You acknowledge that, because the license for the Software is at no charge, the remedies described in the preceding sentence are sufficient and cannot fail of their essential purpose.  
       (b) Disclaimer.  EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 7(a), TENABLE DOES NOT MAKE  ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, INTEGRATION, PERFORMANCE AND ACCURACY, AND ANY IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION, OR MODIFICATION UNDER APPLICABLE LAW.  TENABLE MAKES NO WARRANTY THAT THE SOFTWARE WILL OPERATE ERROR-FREE, FREE OF ANY SECURITY DEFECTS OR IN AN UNINTERRUPTED MANNER. 

8. Exclusion of Damages. 
       UNDER NO CIRCUMSTANCES WILL TENABLE BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT, MISREPRESENTATION AND OTHER CONTRACT OR TORT CLAIMS; LOST PROFITS; OR ANY DAMAGES RESULTING FROM LOSS OF DATA, SECURITY BREACH, PROPERTY DAMAGE, LOSS OF REVENUE, LOSS OF BUSINESS OR LOST SAVINGS), ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE PERFORMANCE OF THE SOFTWARE OR OF ANY OTHER OBLIGATIONS RELATING TO THIS AGREEMENT, WHETHER OR NOT TENABLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  YOU ARE SOLELY RESPONSIBLE AND LIABLE FOR VERIFYING THE SECURITY, ACCURACY AND ADEQUACY OF ANY OUTPUT FROM THE SOFTWARE, AND FOR ANY RELIANCE THEREON. 

9. Additional Provisions Regarding Liability.  
       The limitations of liability set forth in Section 8 will survive and apply notwithstanding the failure of any limited or exclusive remedy for breach of warranty set forth in this Agreement.  The parties agree that the foregoing limitations will not be read so as to limit any liability to an extent that would not be permitted under applicable law and specifically will not limit any liability for gross negligence, intentional tortious or unlawful conduct or damages for strict liability that may not be limited by law.

10. Indemnification.  
       Each of the parties acknowledges and agrees that by entering into and performing its obligations under this Agreement, Tenable will not assume and should not be exposed to the business and operational risks associated with Your business.  You acknowledge that Your use of the Software is only a portion of Your overall security solution and that Tenable is not responsible for Your overall security solution.  The parties acknowledge that the use of the Software may affect the operation of Your network during vulnerability scanning.  Tenable shall not be liable to You for any impairment of the operation of Your network arising from Your use of the Software during such scanning.  As between You and Tenable, You are (and Tenable is not) responsible for the success or failure of such security solution.  You agree that You will, at Your expense, indemnify, defend and hold Tenable harmless in all claims and actions that seek compensation of any kind for injury or death to persons and/or for damage to property, and that arise out of or relate to Your security solutions or Your use of the Software or the solutions You provide to a third party through Your use of the Software.  You also agree to pay all settlements, costs, damages, legal fees and expenses finally awarded in all such claims and actions. If You are a governmental entity that is prohibited by applicable law from providing this type of indemnification, this Section 10 will not apply.

11. Legal Compliance; Restricted Rights.  
       The Software is provided solely for lawful purposes and use.  You are solely responsible for, and agree to perform Your obligations in a manner that complies with all applicable national, federal, state and local laws, statutes, ordinances, regulations, codes and other types of government authority (including those governing export control, unfair competition, anti-discrimination, false advertising, privacy and data protection, and publicity and those identifying and requiring permits, licenses, approvals, and other consents) ("Laws").  If a charge is made that You are not complying with any such Laws, You will promptly notify Tenable of such charges in writing.  Without limiting the foregoing, You agree to comply with all U.S. export Laws and applicable export Laws of Your locality (if You are not in the United States), to ensure that no information or technical data provided pursuant to this Agreement is exported or re-exported directly or indirectly in violation of Law or without first obtaining all required authorizations or licenses.  You will, at Your sole cost and expense, obtain and maintain in effect all permits, licenses, approvals and other consents related to Your obligations under this Agreement.  You agree, at Your expense, to comply with all foreign exchange and other Laws applicable to You.  Unless You are prohibited by law from doing so, You will defend, indemnify, and hold Tenable harmless from any breach of this Section 11.

12. Termination.
       (a) You may terminate this Agreement at any time by destroying or returning to Tenable the Software, together with all copies, modifications and merged portions of the Software in any form.
       (b) This Agreement and Your license to use the Software shall terminate automatically if You fail to comply with any term or condition of this Agreement. 
       (c) Immediately upon termination of this Agreement, You shall destroy or return to Tenable the Software, together with all copies, modifications and merged portions of the Software in any form, and shall certify to Tenable in writing that through Your commercially reasonable efforts and to Your knowledge all such materials have been destroyed or returned to Tenable and removed from host computers on which Software resided. The removal and deletion provisions of this Section do not apply to copies of the Software that are made pursuant to Your reasonable back-up and archival policies (under which back-up tapes that will be overwritten in due course may contain copies of the Software), provided that (i) such copies are only retained by You in the course of Your back-up procedures, (ii) such copies will be deleted within a reasonable period of time in the normal course of overwriting under the back-up process, and (iii) such copies never be used to exceed the license restrictions under this Agreement.
       (d) Any provision of this Agreement that imposes or contemplates continuing obligations on a party, including Sections 3, 4, 5, 6, 8, 9, 11, 12, 13, 16, and 20 will survive the expiration or termination of this Agreement.  

13. Governing Law and Dispute Resolution.  
       (a) This Agreement shall be governed in all respects by the laws of the State of Maryland, USA, without regard to choice-of-law rules or principles.  If You are a governmental entity that cannot legally agree to be governed by the laws of the State of Maryland, this Section 13(a) will be deemed to refer to the laws of the Your state rather than to the State of Maryland.
       (b) You and Tenable submit to the exclusive jurisdiction of the courts of Howard County, Maryland and the United States District Court for Maryland, Baltimore Division, for any question or dispute arising out of or relating to this Agreement.  Due to the high costs and time involved in commercial litigation before a jury, the parties waive all right to a jury trial with respect to any and all issues in any action or proceeding arising out of or related to this Agreement.  If You are a governmental entity that cannot legally submit to the exclusive jurisdiction of the courts of Howard County, Maryland, this Section 13(b) will be deemed to be deleted.
       (c) The Software is licensed subject to Tenable's standard commercial agreement; Software licensed for use by the United States government is provided with "Restricted Rights" only as defined in 48 C.F.R. 52.227-14 and 48 C.F.R. 252.227-7014 if the commercial terms are deemed not to apply.
       (d) You expressly agree with Tenable that this Agreement shall not be governed by the U.N. Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. No aspect or provision of the Uniform Computer Information Transactions Act, as implemented under Maryland law, shall apply to this Agreement.

14. Notices.  
       Any notices or other communication required or permitted to be made or given by either party pursuant to this Agreement will be in writing, in English, and will be deemed to have been duly given when delivered if delivered personally or sent by recognized overnight express courier, to the address specified herein or such other address as a party may specify in writing.  Tenable may also provide notices to You via an email address You have provided to Tenable.  All notices to Tenable shall be sent to the attention of the Legal Department, at Tenable Network Security, 7063 Columbia Gateway Drive, Suite 100, Columbia, MD 21046. 

15. Transfer and Assignment. 
       You may not rent, lease, lend, sublicense or otherwise provide the Software to any third party.  You may not assign or otherwise transfer this Agreement without Tenable's prior written consent.  You may use the Software to provide services to third parties only as expressly provided in this Agreement.

16. Publicity.
       You agree not to use Tenable's company name or any trademarks, logos, service marks or other intellectual property, or refer to Tenable or any of its employees, in any form of advertising, publicity or release without the prior written approval of Tenable, which it may withhold in its sole discretion.  Unless Tenable agrees otherwise, You agree that Tenable may use Your customer name in advertising or for other publicity purposes, and may place Your logo on Tenable's web site and marketing materials to indicate Your status as a customer; provided that Tenable will comply with reasonable guidelines provided by You for use of such logos and trademarks. 

17. Language.  
       The language of this Agreement is English and all notices, invoices and related documents given under this Agreement must be in English to be effective.  No translation, if any, of this Agreement or any notice will be of any effect in the interpretation of this Agreement or in determining the intent of the parties.   

18. Third Parties.  
       This Agreement is not intended nor will it be interpreted to confer any benefit, right or privilege in any person or entity not a party to this Agreement.  Any party who is not a party to this Agreement has no right under any Law to enforce any term of this Agreement.

19. Trademarks. 
       Nessus, ProfessionalFeed, HomeFeed and Tenable Network Security, Inc. are registered trademarks of Tenable.  Tenable's logos, including the "eye" logo, are also trademarks of Tenable.  Tenable does not grant to You, either expressly or by implication, any license or permission under this Agreement to use any of the Tenable marks (including trademarks, service marks, trade names, trade dress, symbols, logos, designs, domain names, slogans and other source identifiers). 

20. General.  
       This Agreement constitutes the entire agreement between the parties, and supersedes all other prior or contemporaneous communications between the parties (whether written or oral) relating to the subject matter of this Agreement, provided, however, that this Agreement will not supersede (and will be subject to) any written agreements signed by both Tenable and You that contain license terms for Tenable Software and that specifically provide that such agreements are intended to supersede license agreements that may be included in subsequent orders of Software.  Tenable will provide a reasonable replacement for damaged or lost Software for You at no charge.  No supplement, modification or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement.  The provisions of this Agreement will be deemed severable, and the unenforceability of any one or more provisions will not affect the enforceability of any other provisions.  In addition, if any provision of this Agreement, for any reason, is declared to be unenforceable, the parties will substitute an enforceable provision that, to the maximum extent possible under applicable law, preserves the original intentions and economic positions of the parties.  No failure or delay by a party in exercising any right, power or remedy will operate as a waiver of that right, power or remedy, and no waiver will be effective unless it is in writing and signed by the waiving party.  If a party waives any right, power or remedy, the waiver will not waive any successive or other right, power or remedy the party may have under this Agreement.  Any provision of this Agreement that imposes or contemplates continuing obligations on a party will survive the expiration or termination of this Agreement.  "Including" and its derivatives (such as "include" and "includes") mean including without limitation; this term is as defined, whether or not capitalized in this Agreement.


Tenable Network Security Confidential and Proprietary
Nessus 5.x Software License Agreement v6 03.21.13
       


EXHIBIT A
TENABLE NETWORK SECURITY, INC.
SUBSCRIPTION AGREEMENT

This is a legal agreement ("Subscription Agreement") between Tenable Network Security, Inc., a Delaware corporation having offices at 7063 Columbia Gateway Drive, Suite 100, Columbia, MD 21046 ("Tenable"), and you ("You"), the party downloading the Plugins  through Tenable's Subscription service or using Inclusive Plugins, if any, provided with Nessus Software (as each capitalized term is defined below).  This Subscription Agreement covers Your permitted use of the Plugins.  BY CLICKING BELOW YOU INDICATE YOUR ACCEPTANCE OF THIS SUBSCRIPTION AGREEMENT AND YOU ACKNOWLEDGE THAT YOU HAVE READ ALL OF THE TERMS AND CONDITIONS OF THIS SUBSCRIPTION AGREEMENT, UNDERSTAND THEM, AND AGREE TO BE LEGALLY BOUND BY THEM.  If You do not agree with the terms of this Subscription Agreement, You may not use the Plugins as defined below.  The Plugins may only be provided to You by Tenable. 

1. Grant of Plugins License.  
       (a) Definition of Plugins.  The term "Plugins" means any plugins (and related updates) that are marked as copyrighted by Tenable.  Any plugins or components that are not marked as copyrighted by Tenable are not Plugins as defined under this Subscription Agreement and are subject to other license terms.  The term "Inclusive Plugins" means any Plugin that You obtained directly from <a href="http://www.nessus.org">www.nessus.org</a>, <a href="http://www.tenable.com">www.tenable.com</a>, <a href="http://www.tenablesecurity.com">www.tenablesecurity.com</a> or any authorized sources as listed on Tenable's website (<a href="http://www.tenable.com">www.tenable.com</a>), including as part of a download of Nessus vulnerability scanner software.  
       (b) Grant.  You may receive a license under this Subscription Agreement either under Section 1(b)(i) or under Section 1(b)(ii).  These two options are mutually exclusive; You may only accept a license to use Plugins under a Subscription (as defined below) or a license to use the Inclusive Plugins, if any.  If You subscribe to a Subscription, any prior license You may have had to use the Inclusive Plugins, if any, is terminated.
              (i) Use of Subscription Plugins.  Subject to the terms and conditions as described in Section 2, and Your acceptance, of this Subscription Agreement, Tenable grants to You for the Term (as defined below) a non-exclusive, non-transferable license in object code form only to use the Plugins as permitted under the subscription described in Section 2 below for which You are eligible and have subscribed (the "Subscription").  You agree to use the Plugins only in conjunction with Nessus vulnerability scanner programs obtained directly from <a href="http://www.nessus.org">www.nessus.org</a>, <a href="http://www.tenable.com">www.tenable.com</a>, <a href="http://www.tenablesecurity.com">www.tenablesecurity.com</a> or any authorized sources as listed on Tenable's website (<a href="http://www.tenable.com">www.tenable.com</a>) and registered with Tenable ("Registered Scanners") and for which You have paid the applicable fee, if any.  If You obtained Nessus from other unauthorized sources, You are not eligible for and may not use a Subscription.  The Subscription includes vulnerability detection programs not developed by Tenable or its licensors and which are licensed to You under separate agreements.  The terms and conditions of this Subscription Agreement do not apply to such vulnerability detection programs.
              (ii) Use of Inclusive Plugins.  Subject to Your acceptance of this Subscription Agreement, Tenable grants to You for the Term a non-exclusive, non-transferable license in object code form only to use the Inclusive Plugins, if any.  You may use the Inclusive Plugins for personal or commercial use.  You may not use the Inclusive Plugins with the HomeFeed or Commercial Subscription.  You may not add any other plugins or Plugins to the Inclusive Plugins or register with any source of plugins or Plugins (including Tenable), whether such source is self-updating or manual.  You agree to use the Plugins only in conjunction with Nessus vulnerability scanner programs obtained directly from <a href="http://www.nessus.org">www.nessus.org</a>, <a href="http://www.tenable.com">www.tenable.com</a>, <a href="http://www.tenablesecurity.com">www.tenablesecurity.com</a> or any authorized sources as listed on Tenable's website (<a href="http://www.tenable.com">www.tenable.com</a>).
       (c) Reservation of Rights.  Any rights in or to the Plugins (including rights of use) not expressly granted in this Subscription Agreement are reserved by Tenable.  This Subscription Agreement does not transfer to You any title to or any ownership right or interest in the Plugins.  You acknowledge that Tenable owns and retains all right, title and interest in and to the Plugins.  All enhancements, modifications and derivative works that Tenable makes to the Plugins or accompanying documentation, and all intellectual property rights therein, will be the property of Tenable.  

2. Subscriptions.  
       (a) HomeFeed Subscription (Non-Commercial Use Only).  The HomeFeed Subscription is a non-commercial subscription that permits You to use the Plugins in conjunction with Registered Scanners for Your personal use solely to detect vulnerabilities only on Your own personal system (or for Your own personal network) that You use for non-commercial purposes or on the personal system (or for the personal network) of another natural person in a non-commercial arrangement.  You are not eligible to subscribe to the HomeFeed Subscription if You are a corporation, a governmental entity or any other form of organization.  You may not subscribe to the HomeFeed Subscription to use the Plugins on a computer owned by Your employer or otherwise use the Plugins for the benefit of or to perform any services for any corporation, governmental entity or any other form of organization. 
       (b) Commercial Subscriptions (Commercial Use).  A "Commercial Subscription" permits You to use the Plugins in conjunction with Registered Scanners to detect vulnerabilities only on Your system or network or on the system or network of a third party for which You perform scanning services, auditing services, incident response services, quality assurance and other lab testing, vulnerability assessment services or other security consulting services; provided that You have paid the applicable annual Subscription fee for each Registered Scanner in conjunction with which You will use the Plugins.  You will receive the Commercial Subscription and email support if You use this Commercial Subscription with the Supported commercial version of Nessus (for clarification, a commercial version of Nessus means Nessus version 3 or higher that was developed, copyrighted and distributed by Tenable or authorized distributor of Tenable and not released as open source or licensed under the GPL).  The term "Supported" means the list of Operating System distribution(s) included in the Plugin FAQ or Nessus FAQ found on any Tenable website, including <a href="http://www.nessus.org">www.nessus.org</a>.  For the ProfessionalFeed Subscription, You agree to pay the applicable subscription fee to Tenable for each system on which You have installed a Registered Scanner.  
       (c) Training Organizations.  Notwithstanding the prohibition on commercial use in Section 2(a), if You are a training organization, You may copy, build images and redistribute Tenable's Nessus and Tenable HomeFeed Subscription Plugins to students in and for the classroom setting only.  Upon completion of the class, the student's right to use the Plugins provided by the HomeFeed Subscription is terminated and any students wishing to use the HomeFeed Subscription or Commercial Subscription (as applicable in accordance with this Subscription Agreement) must register for, and pay any applicable fees associated with, their own Subscription.  You may not use the HomeFeed Subscription granted to You for training purposes to secure Your or any third party's networks or in any other way except for classroom training in a non-production environment.  Tenable may terminate a free Subscription under this Section 2(c) at it sole discretion at any time.
       (d) Evaluations.  Upon Your request and subsequent approval by Tenable, You may receive access to evaluate a Commercial Subscription.  Such evaluation may be an on-demand evaluation where You may use the HomeFeed Subscription commercially, which provides access to network vulnerability checks provided in a Commercial Subscription.  You may also request a full-evaluation of a Commercial Subscription by contacting <a href="mailto:subscriptions@tenable.com">subscriptions@tenable.com</a>, which includes additional features specific to the Commercial Subscriptions.  Unless otherwise agreed to by Tenable, an evaluation is valid for seven (7) days and will only be provided once.  You must subscribe to a Commercial Subscription to continue to use the Software commercially after such time.  You may not use an evaluation subscription in a production capacity, to scan third party networks, or to provide a service to Your customers.  
       (e) Custom Nessus Plugin Development and Distribution.  Tenable Network Security encourages users of the Subscriptions to write and develop new Nessus plugins; however, You must subscribe to a Subscription in order to add plugins to Your Nessus scanner.
              (i) If You feel custom plugins developed by You or Your organization will benefit the Nessus HomeFeed and Commercial Subscription subscribers, You should consider submitting them to Tenable so that the plugins can be tested and distributed as part of the Subscription.  Tenable may accept or reject plugin submissions based on code quality, relevance, performance and other factors.  Submitted plugins may include copyright information about the authors, and Tenable will continue to include the copyright information in the plugin.  Submitted plugins may not include any licensing terms, usage agreements or distribution clauses that would interfere with Tenable making the plugin available to subscribers to a Subscription, or would limit Tenable's right to modify the plugin if, for example, changes may be useful to improve its accuracy, performance, network impact or other parameters.
              (ii) Custom Plugins. You may use the Tenable ".inc" files provided with the Subscription, as well as the built-in NASL functions to write custom plugins for Your internal use and internal redistribution, provided, however, that they may not be privately or publicly distributed, whether for free or for a fee.
              (iii) Plugin writers should also be aware that many of the APIs available in the NASL language and various ".inc" libraries, may be used to write custom plugins, but such plugins may only be distributed within Your organization and may not be distributed publicly, whether for free or for a fee.  For example, custom plugins that specifically make use of authenticated logins remote systems via Secure Shell or Windows Domain, that use the libraries included in the Subscriptions or that have previously been distributed by Tenable, including the Registered Feed, may not be publicly distributed.  To ensure that Your custom plugins do not make use of a library that prohibits public distribution, You should audit them to see which libraries are being invoked and then read each corresponding license.

3. Term.
       This Subscription Agreement commences on the date on which You execute this Subscription Agreement or download, install or use the Plugins (whichever occurs first) (the "Effective Date") and continues for the following period (the "Term"):  (i) if You subscribe to the HomeFeed Subscription or are using the Inclusive Plugins, if any, until it is terminated according to the terms of this Subscription Agreement; or (ii) if You subscribe to a Commercial Subscription, a period of one (1) year until midnight before the anniversary of the Effective Date, unless terminated earlier according to the terms of this Subscription Agreement.  If You subscribe to a Commercial Subscription, You may extend the Term for additional one (1) year periods so long as You continue to pay the applicable subscription Fees in accordance with this Subscription Agreement. 

4. No Reverse Engineering, Other Restrictions.  
       Except as expressly permitted in this Subscription Agreement, You may not directly or indirectly: (i) sell, lease, redistribute or transfer any of the Plugins on a stand-alone basis; (ii) decompile, disassemble, reverse engineer, or otherwise attempt to derive, obtain or modify the source code of the Plugins; (iii) reproduce, modify, translate or create derivative works of all or any part of the Plugins; (iv) rent, lease or loan the Plugins in any form to any third party; (v) remove, alter or obscure any proprietary notice, labels, or marks on the Plugins, or (vi) sell, resell, loan or otherwise provide access to third parties to the Nessus XMLRPC interface, Nessus client interface, or Nessus communication interface shipped by Tenable and provided to You.  You may not sublicense any of the rights granted to You in this Subscription Agreement.  You may not distribute or otherwise provide Plugins to third parties.  You are responsible for all use of the Plugins and for compliance with this Subscription Agreement; any breach by You or any user using the Plugins on Your behalf shall be deemed to have been made by You.  You may not use the Plugins if You are, or You work for, a competitor of Tenable's in the network security software industry.  For the avoidance of doubt, You may not include or redistribute the Plugins on physical or virtual appliances to perform on-site scans.  

5. Restrictions on Third Party Use and Access.
	You may permit a third party (a "Third Party") to use the Plugins to perform security services for Your business, provided that: (i) any such Third Party use or administration is for Your sole benefit and on Your behalf; (ii) You acknowledge that You shall be legally responsible for the Third Party's use of the Plugins including any obligations arising from such use and any breach by the Third Party of the terms and conditions of the Subscription Agreement, including Section 6 (Confidentiality); and (iii) usage by You and the Third Party, when taken together, does not at any time exceed the usage restrictions imposed under this Subscription Agreement. Upon sixty (60) days' notice, Tenable shall have the right to withdraw its consent to the use of any Third Party in its reasonable discretion.  You agree not to deliver or otherwise make available the Plugins, in whole or in part, to any party other than Tenable, except for purposes specifically related to Your use of the Plugins without Tenable's prior written consent. You agree to use Your commercially reasonable efforts and to take all reasonable steps to ensure that no unauthorized parties have access to or use the Plugins and that no unauthorized copy, publication, disclosure or distribution of the Plugins, in whole or in part, in any form is made by You or any third party.  You agree to notify Tenable of any unauthorized access to, or use, copying, publication, disclosure or distribution of the Plugins.  You acknowledge that the Plugins contain valuable Confidential Information and trade secrets of Tenable or its affiliates and their licensors or suppliers.

6. Confidentiality.  
       The following terms apply to the HomeFeed Subscription and to the use of the Inclusive Plugins, if any:
       As used in this Subscription Agreement, "Confidential Information" means any and all information and material that: (i) gives of Tenable some competitive business advantage or the opportunity of obtaining such advantage or is otherwise confidential or a trade secret; (ii) is marked "Confidential," "Restricted," or "Confidential Information" or other similar marking; (iii) is known by You to be confidential or proprietary; or (iv) from all the relevant circumstances, should reasonably be assumed by You to be confidential or proprietary. Confidential Information includes the Plugins and Subscriptions.  Confidential Information does not include any information that You can prove: (a) was already known to You without restrictions at the time of its disclosure by Tenable; (b) after its disclosure by Tenable, is made known to You without restrictions by a third party having the right to do so; (c) is or becomes publicly known without violation of this Subscription Agreement; or (d) is independently developed by You without reference to the Confidential Information.  Confidential Information will remain the property of Tenable, and You will not be deemed by virtue of this Subscription Agreement or any access to the Confidential Information to have acquired any right, title or interest in or to the Confidential Information.  You may not copy any Confidential Information without Tenable's prior written permission.  You may not remove any copyright, trademark, proprietary rights or other notices included in or affixed to any Confidential Information.  Other than using the Plugins in accordance with the terms of this Subscription Agreement, You may not use the Confidential Information for Your or a third party's benefit, competitive development or any other purpose.  You agree: (I) to hold the Confidential Information in strict confidence; (II) to limit disclosure of the Confidential Information to Your own employees having a need to know the Confidential Information for the purposes of this Subscription Agreement or those of any Third Party, as specified in Section 5; (III) not to disclose any Confidential Information to any third party except to a Third Party in accordance with Section 5; (IV) to use the Confidential Information solely and exclusively in accordance with the terms of this Subscription Agreement in order to carry out Your obligations and exercise Your rights under this Subscription Agreement; (V) to afford the Confidential Information at least the same level of protection against unauthorized disclosure or use as You normally uses to protect Your own information of a similar character, but in no event less than reasonable care; and (VI) to notify Tenable promptly of any unauthorized use or disclosure of the Confidential Information and to cooperate with and assist Tenable in every reasonable way to stop or minimize such unauthorized use or disclosure.  You agree that if a court of competent jurisdiction determines that You have breached, or attempted or threatened to breach, Your confidentiality obligations to Tenable or Tenable's proprietary rights, Tenable will suffer irreparable harm and that monetary damages will be inadequate to compensate Tenable for such breach.  Accordingly, Tenable, in addition to and not in lieu of any other rights, remedies or damages available to it at law or in equity, shall be entitled to seek appropriate injunctive relief and other measures restraining further attempted or threatened breaches of such obligations without requirement to post any bond. 
       The following terms apply to a Commercial Subscription only:
       (a) As used in this Subscription Agreement, "Confidential Information" means any and all information and material of a party that: (i) gives the party some competitive business advantage or the opportunity of obtaining such advantage or is otherwise confidential or a trade secret; (ii) is marked "Confidential," "Restricted," or "Confidential Information" or other similar marking; (iii) is known by the party receiving it under this Subscription Agreement (the "Receiving Party") to be confidential or proprietary; or (iv) from all the relevant circumstances, a reasonable person would understand to be confidential or proprietary.  Tenable's Confidential Information includes the Plugins and Subscriptions.  Confidential Information does not include any information that the Receiving Party can prove: (a) was already known to the Receiving Party without restrictions at the time of its disclosure by the other party (the "Furnishing Party"); (b) after its disclosure by the Furnishing Party, is made known to the Receiving Party without restrictions by a third party having the right to do so; (c) is or becomes publicly known without violation of this Subscription Agreement; or (d) is independently developed by the Receiving Party without reference to the Confidential Information. Confidential Information will remain the property of the Furnishing Party, and the Receiving Party will not be deemed by virtue of this Subscription Agreement or any access to the Confidential Information to have acquired any right, title or interest in or to the Confidential Information.  The Receiving Party may not copy any Confidential Information without the Furnishing Party's prior written permission.  The Receiving Party may not remove any copyright, trademark, proprietary rights or other notices included in or affixed to any Confidential Information.  Other than using the Plugins in accordance with the terms of this Subscription Agreement, the Receiving Party may not use the Confidential Information for the Receiving Party or a third party's benefit, competitive development or any other purpose.  The Receiving Party agrees: (I) to hold the Confidential Information in strict confidence; (II) to limit disclosure of the Confidential Information to the Receiving Party's own employees having a need to know the Confidential Information for the purposes of this Subscription Agreement or those of any Third Party, as specified in Section 5; (III) not to disclose any Confidential Information to any third party except to a Third Party in accordance with Section 5; (IV) to use the Confidential Information solely and exclusively in accordance with the terms of this Subscription Agreement in order to carry out the Receiving Party's obligations and exercise the Receiving Party's rights under this Subscription Agreement; (V) to afford the Confidential Information at least the same level of protection against unauthorized disclosure or use as the Receiving Party normally uses to protect the Receiving Party's own information of a similar character, but in no event less than reasonable care; and (VI) to notify the Furnishing Party promptly of any unauthorized use or disclosure of the Confidential Information and to cooperate with and assist Tenable in every reasonable way to stop or minimize such unauthorized use or disclosure.  The Receiving Party agrees that if a court of competent jurisdiction determines that the Receiving Party has breached, or attempted or threatened to breach, the Receiving Party's confidentiality obligations to the Furnishing Party or its proprietary rights, money damages, the Furnishing Party will suffer irreparable harm and that monetary damages will be inadequate to compensate Tenable for such breach.  Accordingly, the Furnishing Party, in addition to and not in lieu of any other rights, remedies or damages available to it at law or in equity, shall be entitled to seek appropriate injunctive relief and other measures restraining further attempted or threatened breaches of such obligations without requirement to post any bond.
       (b) You acknowledge that Tenable does not require any personally identifiable information, (beyond name, phone number and email) from You in order for Tenable to provide the Commercial Subscription or any support in connection with the use of the Plugins.  However, If You disclose any information that is "Nonpublic Personal Information", as defined in Title V of the Gramm-Leach-Bliley Act of 1999, or any successor federal statute, and the rules and regulations thereunder, all as may be amended or supplemented from time to time ("GLB") or "Protected Health Information ('PHI')", as defined in the Health Insurance Portability and Accountability Act of 1996, or any successor federal statute, and the rules and regulations thereunder, all as may be amended or supplemented from time to time ("HIPAA"), for which You have separate obligations, You will notify Tenable immediately.  Upon such written notification, Tenable will take steps to return or destroy the Nonpublic Personal Information or PHI as quickly as reasonably possible and will protect such information in accordance with Your reasonable instructions prior to returning or destroying it.  This should not be read as to alleviate any requirement on You to keep such information confidential and Tenable does not assume any liability with respect to Your disclosure whether willful or accidental.

7. Disclaimer of Warranties.  
	YOU EXPRESSLY AGREE THAT USE OF THE PLUGINS (WHETHER AS PART OF THE INCLUSIVE PLUGINS, IF ANY, OR A SUBSCRIPTION) IS AT YOUR SOLE RISK.  THE PLUGINS ARE AVAILABLE STRICTLY ON AN "AS IS" AND "AS AVAILABLE" BASIS.  TENABLE DOES NOT MAKE ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, INTEGRATION, PERFORMANCE AND ACCURACY, AND ANY IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION, OR MODIFICATION UNDER APPLICABLE LAW.  TENABLE MAKES NO WARRANTY THAT THE PLUGINS WILL OPERATE ERROR-FREE, FREE OF ANY SECURITY DEFECTS OR IN AN UNINTERRUPTED MANNER. 

8. Limitation of Liability.
       IF YOU SHOULD BECOME ENTITLED TO CLAIM DAMAGES FROM TENABLE (INCLUDING FOR NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT, MISREPRESENTATION AND OTHER CONTRACT OR TORT CLAIMS) TENABLE WILL BE LIABLE ONLY FOR THE AMOUNT OF YOUR ACTUAL DIRECT DAMAGES, NOT TO EXCEED (IN THE AGGREGATE FOR ALL CLAIMS) THE FEES, IF ANY, YOU PAID TO TENABLE.

9. Exclusion of Other Damages. 
	UNDER NO CIRCUMSTANCES WILL TENABLE BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT, MISREPRESENTATION AND OTHER CONTRACT OR TORT CLAIMS; LOST PROFITS; OR ANY DAMAGES RESULTING FROM LOSS OF DATA, SECURITY BREACH, PROPERTY DAMAGE, LOSS OF REVENUE, LOSS OF BUSINESS OR LOST SAVINGS), ARISING OUT OF OR IN CONNECTION WITH THIS SUBSCRIPTION AGREEMENT OR THE PERFORMANCE OF THE PLUGINS OR OF ANY OTHER OBLIGATIONS RELATING TO THIS SUBSCRIPTION AGREEMENT, WHETHER OR NOT TENABLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  YOU ARE SOLELY RESPONSIBLE AND LIABLE FOR VERIFYING THE SECURITY, ACCURACY AND ADEQUACY OF ANY OUTPUT FROM THE PLUGINS AND SUBSCRIPTIONS, AND FOR ANY RELIANCE THEREON. 

10. Additional Provisions Regarding Liability.  
       The limitations of liability set forth above will survive and apply notwithstanding the failure of any limited or exclusive remedy for breach of warranty set forth in this Subscription Agreement.  The parties agree that the foregoing limitations will not be read so as to limit any liability to an extent that would not be permitted under applicable law and specifically will not limit any liability for gross negligence, intentional tortious or unlawful conduct or damages for strict liability that may not be limited by law.

11. Indemnification.  
       (a) Each of the parties acknowledges and agrees that by entering into and performing its obligations under this Subscription Agreement, Tenable will not assume and should not be exposed to the business and operational risks associated with Your use of the Plugins.  You acknowledge that Your use of the Plugins is only a portion of Your overall security solution and that Tenable is not responsible for Your overall security solution.  The parties acknowledge that the use of the Plugins may affect the operation of Your network during vulnerability scanning.  Tenable shall not be liable to You for any impairment of the operation of Your network arising from Your use of the Plugins during such scanning.  As between You and Tenable, You are (and Tenable is not) responsible for the success or failure of such security solution.  Accordingly, You agree that You will, at Your expense, indemnify, defend and hold Tenable harmless in all claims and actions that seek compensation of any kind for injury or death to persons and/or for damage to property that arise out of or relate to Your security solutions or Your use of the Plugins, or the solutions You provide to a third party through Your use of the Plugins.  You also agree to pay all settlements, costs, damages, legal fees and expenses finally awarded in all such claims and actions. If You are a governmental entity that is prohibited by applicable law from providing this type of indemnification, this Section 11 will not apply.
       The following provision applies only to the Commercial Subscriptions:
       (b) Tenable will, at its sole cost and expense, defend (or at its option, settle) and indemnify You and Your subsidiaries and affiliates, and their officers, directors, employees, representatives and agents, from and against any and all third party claims brought against You based upon a claim that use of the Plugins in accordance with this Subscription Agreement infringes such third party's United States patent, copyright or trademark or misappropriates any trade secret, and will pay all settlements entered into and damages finally awarded (including reasonable attorneys' fees) to the extent based on such claim or action, provided that You give Tenable (a) prompt notice of such action or claim; (b) the right to control and direct the investigation, defense, and/or settlement of such action or claim; and (c) reasonable cooperation.  If Your use of any Plugins is, or in Tenable's opinion is likely to be, the subject of an infringement claim, or if required by settlement, Tenable may, in it sole discretion and expense, (a) substitute for the Plugins substantially functionally similar non-infringing software; (b) procure for You the right to continue using the Plugins, (c) remove the Plugins in question from the Subscription and provide You with a pro rata refund based upon the total number of Plugins removed relative to the total number of Plugins; or (d) terminate this Subscription Agreement, accept return of the Plugins and refund to You the Fee for the Commercial Subscription for the current one (1) year Term.  Tenable has no liability with respect to patent, copyright or trademark infringement or trade secret misappropriation arising out of: (i) modifications of the Plugins; (ii) Your use of the Plugins in combination with software other than the Registered Scanner; (iii) Your failure to use any new or corrected versions of the Plugins made available by Tenable; or (iv) Your use of the Plugins in a manner not permitted by this Agreement.  This Section 11(a) sets forth Tenable's sole liability and Your sole and exclusive remedy with respect to any claim of intellectual property infringement by the Plugins.

12. Your Payment Obligations.
       If You obtain a Commercial Subscription, You agree to pay any and all amounts due or incurred by You as specified in the invoice for the Commercial Subscription (the "Fees").  The invoice may be issued by Tenable or one of its authorized distributors, as applicable.  Payment is due upon delivery of an invoice unless other terms have been negotiated.  You agree to pay directly or reimburse Tenable (or the authorized distributor, as applicable) for any taxes (including, sales or excise taxes, value added taxes, landing fees, import duties and the like), however designated and whether foreign or domestic, arising out of this Subscription Agreement, imposed on the Plugins or the use thereof, or Tenable's performance under this Subscription Agreement.  You agree to pay invoices under this Subscription Agreement without deducting any present or future taxes, withholdings or other charges except those deductions it is legally required to make.  If You are legally required to make any deductions, You agree to pay such amounts as are necessary to make the net amounts remaining after such deductions equal to the stated amount due under this Subscription Agreement.  The payments or reimbursements will be in such amounts as are sufficient to relieve Tenable (or the authorized distributor, as applicable) from owing any further taxes, either directly or on the basis of the payments made under this Subscription Agreement.  Notwithstanding the foregoing, Tenable will be solely responsible for its income tax obligations and all employer reporting and payment obligations with respect to its personnel.  You agree to pay any interest and penalties imposed by any taxing authorities to the extent such interest and penalties are applicable to taxes not paid at Your request or as a result of reliance by Tenable (or the authorized distributor, as applicable) on Your representations.  If a certificate of exemption or similar document or proceeding is necessary in order to exempt any transaction from a tax, You will obtain such certificate or document.  

13. Legal Compliance; Restricted Rights.  
       The Plugins are provided solely for lawful purposes and use.  You are solely responsible for, and agree to perform Your obligations in a manner that complies with all applicable national, federal, state and local laws, statutes, ordinances, regulations, codes and other types of government authority (including those governing export control, unfair competition, anti-discrimination, false advertising, privacy and data protection, and publicity and those identifying and requiring permits, licenses, approvals, and other consents) ("Laws").  If a charge is made that You are not complying with any such Laws, You will promptly notify Tenable of such charges in writing.  Without limiting the foregoing, You agree to comply with all U.S. export Laws and applicable export Laws of Your locality (if You are not in the United States), to ensure that no information or technical data provided pursuant to this Subscription Agreement is exported or re-exported directly or indirectly in violation of Law or without first obtaining all required authorizations or licenses.  You will, at Your sole cost and expense, obtain and maintain in effect all permits, licenses, approvals and other consents related to Your obligations under this Subscription Agreement.  You agree, at Your expense, to comply with all foreign exchange and other Laws applicable to You.  Unless You are prohibited by law from doing so, You will defend, indemnify, and hold Tenable harmless from any breach of this Section 13.

14. Termination.
       (a) You may terminate this Subscription Agreement at any time by destroying or returning to Tenable the Plugins, together with all copies, modifications and merged portions of the Plugins in any form.
       (b) This Subscription Agreement and Your license to use the Plugins and Subscriptions shall terminate automatically if You fail to comply with any term or condition of this Subscription Agreement or if the Nessus Software License Agreement between You and Tenable terminates.  
       (c) Immediately upon the expiration or termination of this Subscription Agreement, You shall destroy or return to Tenable the Plugins, together with all copies, modifications and merged portions of the Plugins in any form, and shall certify to Tenable in writing that through Your commercially reasonable efforts and to Your knowledge all such materials have been destroyed or returned to Tenable and removed from all computers (whether physical or virtual) on which the Plugins resided.  Because it is not practical to separate the Plugins in the Subscription from the Inclusive Plugins, if any, provided with the Registered Scanner, Your license to the Registered Scanner terminates on the expiration of Your Subscription, with the addition of any plugin, or termination of this Subscription Agreement.  However, You may download the then-current version of the Registered Scanner and enter into a new license under the then-current terms. The removal and deletion provisions of this Section do not apply to copies of the Plugins that are made pursuant to Your reasonable back-up and archival policies (under which back-up tapes that will be overwritten in due course may contain copies of the Plugins), provided that (i) such copies are only retained by You in the course of Your back-up procedures, (ii) such copies will be deleted within a reasonable period of time in the normal course of overwriting under the back-up process, and (iii) such copies never be used to exceed the license restrictions under this Subscription Agreement.
       (d) Any provision of this Subscription Agreement that imposes or contemplates continuing obligations on a party, including Sections 1(c), 4, 5, 6, 8, 9, 10, 11(a), 13, 14, 15, 18 and 22 will survive the expiration or termination of this Subscription Agreement.

15. Governing Law and Dispute Resolution.  
       (a) This Subscription Agreement shall be governed in all respects by the laws of the State of Maryland, USA, without regard to choice-of-law rules or principles.  If You are a governmental entity that cannot legally agree to be governed by the laws of the State of Maryland, this Section 15(a) will be deemed to refer to the laws of the Your state rather than to the State of Maryland.
       (b) You and Tenable submit to the exclusive jurisdiction of the courts of Howard County, Maryland and the United States District Court for Maryland, Baltimore Division, for any question or dispute arising out of or relating to this Subscription Agreement.  Due to the high costs and time involved in commercial litigation before a jury, the parties waive all right to a jury trial with respect to any and all issues in any action or proceeding arising out of or related to this Subscription Agreement.  If You are a governmental entity that cannot legally submit to the exclusive jurisdiction of the courts of Howard County, Maryland, this Section 15(b) will be deemed to be deleted.
       (c) The Plugins are licensed subject to Tenable's standard commercial agreement; Plugins licensed for use by the United States government is provided with "Restricted Rights" only as defined in 48 C.F.R. 52.227-14 and 48 C.F.R. 252.227-7014 if the commercial terms are deemed not to apply.
       (d) You expressly agree with Tenable that this Subscription Agreement shall not be governed by the U.N. Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.  No aspect or provision of the Uniform Computer Information Transactions Act, as implemented under Maryland law, shall apply to this Subscription Agreement.

16. Notices.  
       Any notices or other communication required or permitted to be made or given by either party pursuant to this Subscription Agreement will be in writing, in English, and will be deemed to have been duly given when delivered if delivered personally or sent by recognized overnight express courier, to the address specified herein or such other address as a party may specify in writing.  Tenable may also provide notices to You via an email address You have provided to Tenable.  All notices to Tenable shall be sent to the attention of the Legal Department, at Tenable Network Security, 7063 Columbia Gateway Drive, Suite 100, Columbia, MD 21046. 

17. Transfer and Assignment. 
       You may not rent, lease, lend, sublicense or otherwise provide the Plugins to any third party. You may not assign or otherwise transfer this Subscription Agreement without Tenable's prior written consent.  You may use the Plugins and Subscriptions to provide services to third parties only as expressly provided in this Subscription Agreement.

18. Publicity.
       You agree not to use Tenable's company name or any trademarks, logos, service marks or other intellectual property, or refer to Tenable or any of its employees, in any form of advertising, publicity or release without the prior written approval of Tenable, which it may withhold in its sole discretion.  Unless Tenable agrees otherwise, You agree that Tenable may use Your customer name in advertising or for other publicity purposes, and may place Your logo on Tenable's web site and marketing materials to indicate Your status as a customer; provided that Tenable will comply with reasonable guidelines provided by You for use of such logos and trademarks. 

19. Language.  
       The language of this Subscription Agreement is English and all notices, invoices and related documents given under this Subscription Agreement must be in English to be effective.  No translation, if any, of this Subscription Agreement or any notice will be of any effect in the interpretation of this Subscription Agreement or in determining the intent of the parties.   

20. Third Parties.  
       This Subscription Agreement is not intended nor will it be interpreted to confer any benefit, right or privilege in any person or entity not a party to this Subscription Agreement.  Any party who is not a party to this Subscription Agreement has no right under any Law to enforce any term of this Subscription Agreement.

21. Trademarks. 
       Nessus, ProfessionalFeed, HomeFeed and Tenable Network Security, Inc. are registered trademarks of Tenable.  Tenable's logos, including the "eye" logo, are also trademarks of Tenable.  Tenable does not grant to You, either expressly or by implication, any license or permission under this Subscription Agreement to use any of the Tenable marks (including trademarks, service marks, trade names, trade dress, symbols, logos, designs, domain names, slogans and other source identifiers). 

22. General.  
       This Subscription Agreement constitutes the entire agreement between the parties, and supersedes all other prior or contemporaneous communications between the parties (whether written or oral) relating to the subject matter of this Subscription Agreement, provided, however, that this Subscription Agreement will not supersede (and will be subject to) any written agreements signed by both Tenable and You that contain subscription terms for Tenable Plugins and that specifically provide that such agreements are intended to supersede subscription agreements that may be included in subsequent orders of Plugins or Subscriptions.  Tenable will provide a reasonable replacement for damaged or lost Plugins for You at no charge.  No supplement, modification or amendment of this Subscription Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Subscription Agreement.  The provisions of this Subscription Agreement will be deemed severable, and the unenforceability of any one or more provisions will not affect the enforceability of any other provisions.  In addition, if any provision of this Subscription Agreement, for any reason, is declared to be unenforceable, the parties will substitute an enforceable provision that, to the maximum extent possible under applicable law, preserves the original intentions and economic positions of the parties.  No failure or delay by a party in exercising any right, power or remedy will operate as a waiver of that right, power or remedy, and no waiver will be effective unless it is in writing and signed by the waiving party.  If a party waives any right, power or remedy, the waiver will not waive any successive or other right, power or remedy the party may have under this Subscription Agreement.  Any provision of this Subscription Agreement that imposes or contemplates continuing obligations on a party will survive the expiration or termination of this Subscription Agreement.  "Including" and its derivatives (such as "include" and "includes") mean including without limitation; this term is as defined, whether or not capitalized in this Subscription Agreement.

Tenable Network Security Confidential and Proprietary
Subscription Agreement v6 03.21.13
This technology and/or software is licensed in accordance with the U.S. Department of Commerce, Export Administration Regulations (EAR). Diversion contrary to U.S. law is prohibited. No physical or computational access by nationals of tier 4 countries (Cuba, Iran, N. Korea, Sudan, or Syria) is permitted.
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