Prelude Research, Inc. sells licenses to the Prelude Operator software for lawful and ethical security testing purposes. Prelude Operator is meant for use by an extremely technical and skilled end user, and it is up to you to ensure the software meets your needs and behaves in a safe manner for your use cases. All users acknowledge that Prelude disclaims all liability for damages caused by use of Prelude Operator, even if Prelude has been advised of such potential damages. Please make sure you read through, understand and agree with these terms before you download Prelude Operator.
This copy of Prelude Operator, whether in a free ("Community License"), paid ("Professional License") or trial ("Enterprise License") version, ("Prelude Operator", the "Software Product" or the "Software") and accompanying documentation is provided as a limited license and not sold. This Software Product is protected by copyright laws and treaties, as well as laws and treaties related to other forms of intellectual property. Prelude Research, Inc. or its subsidiaries, affiliates, and suppliers (collectively "Prelude") own all intellectual property rights in the Software Product. The Licensee's ("you" or "your") limited license to download, use, copy, or change the Software Product is subject to these rights and to all the terms and conditions of this End User License Agreement (the "Agreement").
YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT BY EXECUTING THIS AGREEMENT AND DOWNLOADING THE SOFTWARE. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT. YOU MUST AGREE TO ALL OF THE TERMS OF THIS AGREEMENT BEFORE YOU WILL BE ALLOWED TO DOWNLOAD THE SOFTWARE PRODUCT.
You do not have an active license to use the Software Product unless and until you have (i) agreed to accept the terms and conditions set forth in this Agreement; and (ii) for the Professional License only, paid the requested license fee or service fee. Prelude reserves the right to introduce or increase license fees or service fees for any version of the Software Product, including a higher price for new initial licenses, for renewals and for monthly charges. You understand that Prelude may modify or discontinue offering the Software Product at any time. This Agreement does not give you any rights not expressly and unambiguously granted herein. You shall not, nor permit anyone else to, directly or indirectly: (i) copy, modify, or distribute the Software Product or license key; (ii) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or structure, sequence and organization of Software Product, in whole or in part (except that this restriction shall not apply to transfers of source code expressly permitted by Prelude or the limited extent restrictions on reverse engineering are prohibited by applicable law); (iii) assign, rent, lease, or use the Software Product for timesharing or service bureau purposes, or otherwise use the Software Product for any commercial purpose; or (iv) create any derivative works from or sublicense any rights in the Software Product. You shall maintain and not remove or obscure any proprietary notices on the Software Product, and shall reproduce such notices exactly on all permitted copies of the Software Product.
Prelude Operator License Term
The License Term is the period in which the you are authorized to use the Software Product. This period is specified when the Software Product is ordered. For each available version of Prelude Operator, the default license is as follows:
Software ProductNumber of UsersLicense TermCommunity LicenseOne UserIndefinite (unless otherwise revoked under the terms of this Agreement)Professional LicenseOne UserOne Month, with automatic renewals (unless you cancel your paid subscription or unless otherwise revoked under the terms of this Agreement)
If not specifically designated otherwise, Prelude Operator is licensed under the default license. Prelude hereby grants to the Licensee, during the License Term only, a non-exclusive, non- transferable license to use Prelude Operator solely for ethical security testing purposes. Licensee shall ensure that only the maximum number of authorized Users use the Software for each license key. No other Users are licensed to use the Software. Termination of the Professional License subscription will result in a downgrade to an unpaid Community License, unless termination is initiated by Prelude for violations of this Agreement by the Licensee.
Prelude Enterprise Trial License
A trial version of Prelude Enterprise Software is available for evaluation purposes only. Subject to the terms and conditions of this Agreement, Prelude hereby grants to one user, during the trial term only, a non-exclusive, non-transferable license to use Prelude Operator solely for evaluation purposes. The default trial term is 30 days. Prelude may authorize additional users or grant a longer trial term by request. Trial licenses are not guaranteed Updates or support and may be revoked by Prelude at any time for any reason.
During the License Term only, Prelude grants the right to use, as part of the Software, software updates as they are made generally available to Prelude's end user customers ("Updates"). Prelude decides the frequency and contents of Updates. During the License Term, Users shall also be entitled to receive Updates to the Software Product that add additional methods for security testing. Users are encouraged to install Prelude Operator Updates and use them to maximize the effectiveness of the Software Product. Without the prior written consent of Prelude, Users shall not distribute any information regarding the Software or the Updates or any related derivative works to any third parties, including but not limited to, anti-virus vendors.
Prelude offers email support for the Software during the License Term only. Prelude shall not be obligated to support third-party products or dependencies used by or with the Software.
Restrictions on Transfer
Neither party shall assign, subcontract or otherwise transfer any or all of its rights or obligations hereunder without the prior written consent of the other party; provided that Prelude may assign its rights and obligations under this Agreement without prior written notice or consent, to an affiliate or in conjunction with the sale or other transfer of all or substantially all of the business.
Disclaimer of Warranties and Limitation of Liability
THE SOFTWARE PRODUCT IS BEING PROVIDED "AS IS" AND UNLESS OTHERWISE EXPLICITLY AGREED TO IN WRITING BY PRELUDE, PRELUDE MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, IN FACT OR IN LAW, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OTHER THAN AS SET FORTH IN THIS AGREEMENT OR IN THE LIMITED WARRANTY DOCUMENTS PROVIDED WITH THE SOFTWARE PRODUCT.
YOU WARRANT THAT THE SOFTWARE PRODUCT WILL BE USED BY AN EXTREMELY TECHNICAL AND SKILLED USER AND WILL BE USED IN A SAFE AND ETHICAL MANNER.
Prelude makes no warranty that the Software Product will meet your requirements or operate under your specific conditions of use. Prelude makes no warranty that operation of the Software Product will be secure, error free, or free from interruption. YOU MUST DETERMINE WHETHER THE SOFTWARE PRODUCT SUFFICIENTLY MEETS YOUR REQUIREMENTS FOR SECURITY AND UNINTERRUPTABILITY. YOU BEAR SOLE RESPONSIBILITY AND ALL LIABILITY FOR ANY LOSS INCURRED DUE TO FAILURE OF THE SOFTWARE PRODUCT TO MEET YOUR REQUIREMENTS. PRELUDE WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE FOR THE LOSS OF DATA ON ANY COMPUTER OR INFORMATION STORAGE DEVICE.
UNDER NO CIRCUMSTANCES SHALL PRELUDE, OR ITS DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE TO YOU OR ANY OTHER PARTY FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING LOST REVENUES OR PROFITS OR LOSS OF BUSINESS) RESULTING FROM THIS AGREEMENT, OR FROM THE FURNISHING, PERFORMANCE, INSTALLATION, OR USE OF THE SOFTWARE PRODUCT, WHETHER DUE TO A BREACH OF CONTRACT, BREACH OF WARRANTY, OR TORT (INCLUDING NEGLIGENCE) OF YOU OR ANY OTHER PARTY, EVEN IF PRELUDE IS ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH DAMAGES, AND ANY DAMAGES RELATING TO THE SOFTWARE PRODUCT SHALL BE LIMITED TO THE AMOUNT PAID AND PAYABLE FOR THE SOFTWARE PRODUCT LICENSES IN THE PREVIOUS TWELVE MONTH PERIOD. TO THE EXTENT THAT THE APPLICABLE JURISDICTION LIMITS PRELUDE'S ABILITY TO DISCLAIM ANY IMPLIED WARRANTIES, THIS DISCLAIMER SHALL BE EFFECTIVE TO THE MAXIMUM EXTENT PERMITTED. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO LIMIT PRELUDE’S LIABILITY FOR DIRECT DAMAGES RESULTING FROM MISAPPROPRIATION OR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
You will indemnify and hold harmless Prelude and its affiliates, employees, and agents from and against any and all liabilities, losses, damages, costs, and other expenses (including attorneys’ and expert witnesses’ costs and fees) arising from or relating to any breach of any representation, warranty, covenant, or obligation in this Agreement or any intentional misconduct or negligence by you. In the event of any third-party claim, demand, suit, or action (a "Claim"), for which Prelude (or any of its affiliates, employees, or agents) is or may be entitled to indemnification hereunder, Prelude may, at its option, require you to defend such Claim at Licensee's sole expense. You may not agree to settle any such Claim without Prelude’s express prior written consent.
Governing Law and Jurisdiction
The Agreement and Services will be governed by New York law except for its conflicts of law principles. All claims arising out of or related to this Agreement or the Services must be litigated exclusively in the Federal or State courts of New York County (Manhattan Borough), New York, and the parties consent to venue and personal jurisdiction there.
If any provision of this Agreement shall be held to be invalid or unenforceable, the remainder of this Agreement shall remain in full force and effect. To the extent any express or implied restrictions are not permitted by applicable laws, these express or implied restrictions shall remain in force and effect to the maximum extent permitted by such applicable laws.
Licenses subject to this Agreement will be forfeited if you fail to comply with any of the terms of this Agreement or are in breach of this Agreement. You may terminate this Agreement at any time, with or without cause, upon seven (7) days’ written notice to Prelude, provided however, that except for material breach of this Agreement by Prelude, no refunds of fees shall be permitted.
You acknowledge that you are responsible for complying with all applicable laws and regulations associated with your access and use of Prelude products, including, without limitation, all applicable U.S. export control and economic sanctions laws, including the Export Administration Regulations ("EAR"), International Traffic in Arms Regulations ("ITAR") and Office of Foreign Asset Control Regulations ("OFAC"). You represent and warrant that you are not and will not be listed on any export control and economic sanctions lists, including those promulgated pursuant to the EAR, ITAR and OFAC, or on any other export exclusion list of any other U.S. or non-U.S. governmental agency. You warrant that you will not, and that none of your End Users shall export Prelude products to: (1) destinations requiring a license, (2) persons or entities requiring a license, or (3) end-users and end-uses requiring a license, unless such license has been obtained pursuant to applicable provisions of the EAR, ITAR and/or OFAC regulations.
Government Restricted Rights
This section applies to all acquisitions of the Software Product by or for the federal government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the federal government. The Software Product was developed at private expense and is Commercial Computer Software, as defined in Section 12.212 of the Federal Acquisition Regulation (48 CFR 12.212 (October 1995)) and Sections 227.7202-1 and 227.7202-3 of the Defense Federal Acquisition Regulation Supplement (48 CFR 227.7202-1, 227.7202-3 (June 1995)). If for any reason, Sections 12.212, 227.7202-1 or 227.7202-3 are deemed not applicable, then the Government's rights to use, duplicate or disclose the Software are limited to "Restricted Rights" as defined in 48 CFR Section 52.227-19(c)(1) and (2) (June 1987), or DFARS 252.227-7014(a)(14) (June 1995), as applicable.
Nondisclosure of Confidential Information
Confidential Information" means all non-public, confidential or proprietary information, in whatever form or medium, by one party to the other party or its affiliates, or to any of such party’s or its affiliates’ employees officers, directors, partners, members, shareholders, agents, attorneys, accountants, contractors or advisors, and shall include, but not be limited to, the Software licensed by Prelude to you, information relating to a party’s business concepts, non-public or personal information about customers, merchandising methods, ideas, processes, formulas, data programs, know-how, improvements, discoveries, business plans, financial information and compilations, developments, designs, inventions, techniques, marketing plans, strategies, forecasts, potential new product information, budgets, technology, projections, pricing strategies, costs, customer and supplier information, consumer personally identifiable information and all other information defined as a "trade secret" under the laws of the applicable jurisdictions.
Each party agrees that the party receiving Confidential Information ("Receiving Party") shall hold in strictest confidence the Confidential Information of the party disclosing the Confidential Information ("Disclosing Party") and shall not directly or indirectly disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Disclosing Party, without the prior written consent of the Disclosing Party, except the Receiving Party may disclose Confidential Information on a need-to-know basis, to affiliates, subsidiaries, employees, agents, contractors or representatives of the Receiving Party who are informed by the Receiving Party of the confidential nature of the Confidential Information and the obligations of the Receiving Party under this agreement or in accordance with a judicial or other governmental order, but only if the Receiving Party promptly notifies the Disclosing Party of the order and complies with any applicable protective or similar order. The Receiving Party will cause its affiliates, subsidiaries, employees, agents, contractors or representatives to comply with the provisions of this section and shall remain liable for any breaches of confidentiality by such affiliates, subsidiaries, employees, agents, contractors or representatives.
Prelude and you agree that the Receiving Party will promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information, or any other breach of this Agreement; and assist the Disclosing Party in every reasonable way to retrieve any Confidential Information that was used or disclosed by the Receiving Party or an employee, agent and representative of the Receiving Party without the Disclosing Party’s specific prior written authorization and to mitigate the harm caused by the unauthorized use or disclosure.
Prelude and you agree that the Receiving Party will not be in breach of this section by using or disclosing Confidential Information if the Receiving Party demonstrates that the information used or disclosed (a) is generally available to the public other than as a result of a disclosure by the Receiving Party or an employee, agent and representative of the Receiving Party; (b) was received by the Receiving Party from a third party without any limitations on use or disclosure; or (c) was independently developed by the Receiving Party without use of the Confidential Information.
Prelude and you agree that upon the request of the Disclosing Party, the Receiving Party will (a) promptly return to the Disclosing Party all materials furnished by the Disclosing Party containing Confidential Information, together with all copies and summaries of Confidential Information in the possession or under the control of the Receiving Party, and provide written certification that all such Confidential Information has been returned to the Disclosing Party, or (b) promptly destroy all materials furnished by the Disclosing Party containing Confidential Information, together with all copies and summaries of Confidential Information in the possession or under the control of the Receiving Party, and provide written certification that all such Confidential Information has been destroyed by the Receiving Party.
Prelude and you acknowledge and agree that the remedies available at law for any breach of this Agreement will, by their nature, be inadequate. Accordingly, each Party may obtain injunctive relief or other equitable relief to restrain a breach or threatened breach of this Agreement or to specifically enforce this Agreement, without proving that any monetary damages have been sustained.
This agreement does not create or imply any relationship in agency or partnership between you and Prelude.
This Agreement and the terms and conditions contained in this Agreement apply and are binding upon your successors and assignees.
We reserve the right to modify this Agreement at any time by providing such revised Agreement to you or by publishing the revised Agreement. Your continued use of the Products shall constitute your acceptance to be bound by the terms and conditions of the revised Agreement.
The failure of you or Prelude to enforce any right or provision of this Agreement will not be deemed a waiver of such right or provision. In the event that any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect.
Effective Date: June 6, 2022