FORESCOUT TECHNOLOGIES, INC.
NOT FOR RESALE LICENSE AGREEMENT
This Not For Resale (“NFR”) License Agreement (“Agreement”) is a legal agreement between you (“Partner”), the entity on whose behalf Partner is authorized to enter thisAgreement and all of Partner’s Affiliates that may use the Products, and Forescout Technologies, Inc. and each of its subsidiaries, including Forescout Technologies BV (formerly
SecurityMatters BV) and Forescout Technologies Americas Inc. (formerly SecurityMatters Americas Inc.) (collectively, “Forescout”). If Partner does not agree to the terms andconditions of this Agreement, Partner must promptly return the Products and any accompanying items (including printed materials and binders or other containers) to the placefrom which Partner obtained them. If Partner purchases the Products for use by any of its Affiliate(s), Partner will ensure that such Affiliate(s) comply with the terms andconditions of this Agreement. Partner’s standard terms and conditions of sale, purchase order or other documents are for Partner’s convenience only and any terms set forth
therein that are inconsistent with or add to the terms and conditions set forth in this Agreement shall not be binding on Forescout unless otherwise agreed by the parties inwriting, and are hereby rejected.
1.

DEFINITIONS.

“Affiliate” means an entity that controls (i.e. parent), is controlled by (i.e. subsidiary),or under common control with (i.e. sister) a party to this Agreement.
“Affiliate Products” means eyeInspect (formerly SilentDefense) or any other productoffered by a Forescout Affiliate.
“Distributor” means a company that purchases Products for distribution to Resellers
and, subject to prior written approval by Forescout, directly to End Users, subject tothe terms of this Forescout Distribution Agreement.
“Documentation” means the written technical documentation and specifications
applicable to any given Product, excluding marketing collateral, such as datasheets
and solution briefs.
“Graphical User Interface” or “GUI” means the software program which provides theinterface for Partner to operate the Products.
“Hardware” means the Forescout branded hardware appliance or any other third
party hardware provided for evaluation purposes.
“Order” means the applicable ordering document, acceptable to Forescout, executedby Partner that refers to this Agreement, and that describes in greater detail Partner’sorder‐specific information, including, quantity, charges, billing information, pricing,payment, shipping information and the Products, Professional Services and Support
Service ordered.
“Partner” means Distributor, Reseller, or Technology Partner.
“Product” means the Hardware and the Software that Partner has ordered, andForescout has agreed to provide, as indicated on the applicable Order, including
without limitation the Affiliate Products.
“Reseller” means a company or value‐added reseller that purchases Products and/or
Services for resale to End Users subject to the terms of their Forescout Indirect
Reseller Agreement.
“Software” means the proprietary software program(s) developed by or licensed to,Forescout, made available in object code form, as more fully described within theDocumentation, as well as any modifications, error corrections, bug fixes, or otherupdates thereto. “Software” also includes the proprietary GUI, and associatedDocumentation developed by Forescout.
“Support Service” means the ActiveCare support policy set forth at
http://www.forescout.com/activecare‐maintenance‐and‐support‐policy/, or withregard to the Affiliate Products, the support policy set forth athttps://www.forescout.com/wp‐content/uploads/2019/03/securitymatters‐
technical‐support‐policy.pdf“Technology Partner” means a company or Forescout technology and/or alliancepartner that desires to achieve product interoperability between Forescout Products
and their products subject to the terms of a current and active form of technology
partner agreement with Forescout.
“Territory” means the geographic territory in which Partner has been authorized tomarket and/or sell Products pursuant to Partner’s separate Reseller, Distributor orTechnology Partner agreement with Forescout.
2.

GRANT OF LICENSE; RESERVATION OF RIGHTS.

2.1. License. Provided Partner is in compliance with the terms and conditions
contained herein, Forescout hereby grants Partner a nonexclusive, limited license, forNot for Resale License Agreement 08.28.2019
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the earlier of (i) the term of Partner’s Reseller, Distributor or form of technology
partner agreement with Forescout, as applicable; or (ii) the term set forth in the Order(the “License Term”), to use the Products solely to demonstrate, market, and evaluate
Products to End Users and prospective End Users in the Territory, or for development
purposes with regard to Technology Partners. Partner may not use the Products forany other purpose, including without limitation to sell the Products to any End Useror other third party, except Distributors may sell the Products to Distributor’sResellers for the purposes hereunder and so long as Distributor binds such Resellers
to this Agreement in form satisfactory to Forescout in its sole discretion. Unlessotherwise agreed by the parties in writing, Partner may (i) use one (1) copy of the
Software solely as installed on the Hardware or downloaded electronically; (ii)download and use as many copies of the GUI and the Documentation as necessary tosupport Partner’s use of the Products. Partner is allowed to make a reasonable
number of copies of the Products for backup purposes only, provided that Forescout’s
proprietary notices are contained in such copies.
2.2. Reservation of Rights. Except for the limited license set forth herein, Forescout,
and/or its licensors, own all title and proprietary rights, including without restriction
all intellectual property rights in and to the Software and Documentation, all copies
thereof, and any modifications or derivatives made by Partner to the Software inviolation of this Agreement, all of which contain valuable trade secrets of Forescout
and/or its licensors. The use license described herein is not a sale of the Software or
any copy of it, nor is it a waiver of the rights of Forescout under U.S. copyright laws or
any other federal, state, or other applicable laws.
2.3. Restrictions. This license is subject to a maximum endpoint count or throughput
capacity per sensor, as applicable, and any other licensing restrictions set forth in theDocumentation and Order. Additionally, the license is solely for Partner’s marketing,demonstration, and evaluation use (and development use with regard to Technology
Partners) and does not include the right to sublicense the Software. Partner may not
use the Software for rental, timesharing, subscription service, hosting or outsourcing
or to sublicense, rent, lease or make the Software available to any third party. Partner
acknowledges that the Software in source code form remains a confidential trade
secret of Forescout and/or its licensors, and Partner may not reverse engineer,
decipher, decompile, modify or disassemble the Software or the Hardware orotherwise attempt to derive the source code of the Software (except as authorized
by law), extract the Software from the Hardware, incorporate the Software in whole
or in part in any other software or product, or modify the Software, develop derivative
works of the Software or allow others to do so, or to attempt to do any of theforegoing, without the express prior written consent of Forescout. Partner may not
reproduce the Software or remove any copyright, trademark, proprietary rights,
disclaimer or warning notices placed on, included in or embedded in any part of the
Hardware or the Software. Partner will not, and will not permit any third party to,disclose the results of any benchmark, functionality or performance tests run on the
Software to any competitors of Forescout.
3. THIRD PARTY PRODUCTS AND APPLICATIONS. Partner acknowledges that it
may be able to use the Products to interoperate with products and applications
developed and sold independently by third party vendors. Forescout does notwarrant, and this Agreement does not cover, any third party vendor products orapplications, even if they are designated by Forescout as "certified," "approved,"“recommended” or are otherwise provided by a third party that is a member of aForescout partner program. Any purchase or use by Partner of any third party vendor
product is solely between Partner and such vendor, and Partner agrees that Forescout
has no liability or obligation to Partner for those products or applications, the results
or use thereof, or the effect that the use thereof has on the operation of the Products.

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4.

PRICE, PAYMENT AND SHIPMENT.

4.1. Price and Payment. The Product’s purchase price, including any licensing fees
and any related charges shall be included in the applicable Order. All invoices shall bepayable by Partner within thirty (30) days of the date of each invoice. Forescout shallsubject all past due payments of undisputed amounts to interest accruing thereafterat the lesser of 1.5% per month or the highest lawful rate.
4.2. Taxes. Pricing for Products and any Forescout services ordered hereunder is
exclusive of all taxes, including sales, use, personal property, value‐added, excise,
customs fees, import duties, stamp duties and any other similar taxes and duties,
including penalties and interest, imposed by any United States federal, state,provincial or local government entity or any non‐US government entity.
Partner
agrees to pay all such taxes due in respect of the Products or services which will be
added to the total amount invoiced to Partner, unless Partner furnishes Forescout
with a valid resale or exemption certificate. If Partner is required by law to make any
deduction or to withhold from any amount payable to Forescout hereunder, then theamount payable by Partner upon which the deduction or withholding is based shallbe increased to the extent necessary to ensure that, after such deduction orwithholding, Forescout receives and retains, free from liability for such deduction orwithholding, a net amount equal to the amount Forescout would have received andretained in the absence of such required deduction or withholding. In the event that
Forescout is required to or does pay any taxes for which Partner is responsible,
Partner, upon being advised of these payments, will immediately repay the amountthereof to Forescout.
4.3. Shipment. For shipments in the United States, Products will be shipped FOB
Origin. For international shipments, Partner will take delivery of Products by methodof FCA Origin (Incoterms® 2010). In each case, Products are deemed accepted andtitle to Hardware transfers at shipping point. Partner will provide shipping carrier,method, and account number, contacts, phone numbers, emails, and freight
forwarder/broker of record information. If an export license is required, Forescout
shall obtain exporting license/authorization and fulfill reporting requirements of suchlicenses (except for restricted countries under applicable U.S. law). In respect of U.S.
Origin goods, Forescout is responsible for providing the forwarding agent with the
U.S. electronic export information filing in the Automated Export System (“AES”). The
forwarding agent shall be acting as Forescout’s agent for the limited purpose of filingthe U.S. electronic export information in the AES. Partner will ensure that theforwarding agent is provided accurate and complete information and documents
reflecting the filing in the AES. Any import licenses required by territory destinations
are Partner’s responsibility. All Products will be packaged for shipment in accordancewith the packaging regulations in force in the territory. Partner will provide any special
packaging requirements to Forescout for review and preparation prior to shipment.
Shipment will be made to Partner’s identified facilities or freight forwarder. Partner
will be responsible for all costs related to shipping, freight, insurance, taxes, andcustoms charges. Shipping charges will be collected on delivery or, if prepaid byForescout, will be subsequently invoiced to Partner. Partner is obligated to obtain
insurance against damage to the goods being shipped.
4.4. No Returns or Exchanges. Except for returns expressly permitted in in thisAgreement), Forescout shall not accept any returns or exchanges of Products once
the Products have been shipped.
5. SUPPORT. Partner is required to purchase Support Service for the term of the
Product license(s) granted hereunder. Partner’s purchase price for the applicable
Support Service shall be set forth on the applicable Order.
6. WARRANTY DISCLAIMER. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED FOR IN
THIS AGREEMENT, PARTNER ACKNOWLEDGES AND AGREES THAT THE PRODUCT IS
FOR THE LIMITED PURPOSES SET FORTH HEREIN, NOT‐FOR‐RESALE PURPOSES ONLY,AND IS PROVIDED “AS IS.” FORESCOUT AND ITS SUPPLIERS MAKE NO WARRANTIESIN CONNECTION WITH THE PRODUCTS (EXPRESS IMPLIED, STATUTORY OR
OTHERWISE). FORESCOUT AND ITS SUPPLIERS SPECIFICALLY DISCLAIM ALL IMPLIEDWARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A
PARTICULAR PURPOSE, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE
PRACTICE.
7.

LIMITATION OF LIABILITY.

7.1. TO THE MAXIMUM EXTENT PERMITTED BY LAW, FORESCOUT, ITS LICENSORS,
AFFLIATES, AGENTS, AND SUPPLIERS SHALL NOT BE LIABLE FOR ANY INDIRECT,Not for Resale License Agreement 08.28.2019
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INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDINGWITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST DATA OR LOSS OF USE,
OR PROCUREMENT OF REPLACEMENT GOODS, HOWEVER INCURRED BY PARTNER OR
ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF SUCH
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.2. IN NO EVENT SHALL FORESCOUT'S AGGREGATE LIABILITY FOR DIRECT DAMAGESARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED FIVE THOUSANDDOLLARS ($5,000).
THE LIMITATIONS OF THIS SECTION 7 SHALL APPLY NOTWITHSTANDING ANY FAILURE
OF ESSENTIAL PURPOSE.
8. CONFIDENTIALITY. Partner acknowledges that the Software, and all documents
provided with the Hardware contain Forescout’s confidential trade secret information(“Confidential Information”). Confidential Information will also include any
information disclosed by a party (“Disclosing Party”) to the other party (“Receiving
Party”) in connection with Partner’s use of the Products, provided that suchinformation should be reasonably understood by the Receiving Party as being
confidential or proprietary. The Receiving Party will keep the Confidential Informationin confidence, in the same manner as the Receiving Party maintains its own
confidential information, and in no event with less than a reasonable degree of care.
The Receiving Party will use the Confidential Information only for the purpose
described in this Agreement. The Receiving Party will limit the disclosure ofConfidential Information solely to those employees and consultants having a need‐
to‐know, provided that each such employee and consultant is under a written
confidentiality agreement containing confidentiality obligations no less protective
than those contained in this Agreement. The Receiving Party will make no written or
electronic copies of the Confidential Information, except as reasonably necessary to
perform its obligations under this Agreement. The Receiving Party may disclose theConfidential Information to the extent required by a court of law or government
regulatory body, but first the Receiving Party will give the Disclosing Party prompt
notice to allow the Disclosing Party reasonable opportunity to obtain a protective
order against such disclosure. Notwithstanding the foregoing, Confidential
Information shall not include information that (i) is or becomes a part of the publicdomain through no act or omission by the Receiving Party; (ii) was in the Receiving
Party’s lawful possession prior to the disclosure and had not been obtained by the
Receiving Party either directly or indirectly from the Disclosing Party without aconfidentiality obligation; (iii) is lawfully disclosed to the Receiving Party by a third
party without restriction on disclosure; or (iv) is independently developed by the
Receiving Party without use of or reference to Confidential Information.
9.

COMPLIANCE WITH LAWS.

9.1. General. Each party will comply fully with all international and national laws andregulations that apply to the Products and to Partner’s use thereof including but notlimited to all import and export laws and regulations.
9.2. Partner will indemnify, to the fullest extent permitted by law, Forescout fromand against any fines or penalties that may arise as a result of its breach of this Section
9.
10. U.S. GOVERNMENT RESTRICTED RIGHTS. This Section 10 applies only if Partner
is an agency or other part of the U.S. Government (“Government End User”).
Forescout licenses its Software and Documentation to users within the U.S.
Government and any contractor thereof only under the terms of Forescout’s standard
federal licensing agreement for commercial end use. If Partner is a Government End
User, Forescout hereby identifies the Software and Documentation, and, to the extent
applicable, Partner will identify the Software and Documentation in all proposals andagreements with any Government End User or any contractor thereof, as follows: (i)For acquisition by or on behalf of civilian agencies, as necessary to obtain protection
as “commercial computer software” and related documentation in accordance withthe terms of the party’s standard software license agreement, as specified in 48 C.F.R.
12.212 of the Federal Acquisition Regulations (“FAR”) and its successors; (ii) For
acquisition by or on behalf of units of the U.S. Department of Defense, as necessary
to obtain protection as “commercial computer software” and “commercial computer
software documentation” in accordance with the terms of the party’s standard
software license agreement, as specified in 48 C.F.R. 227.7202. To the extent
applicable and notwithstanding any other FAR or other contractual clause to thecontrary in any agreement into which this Agreement may be incorporated, Partner
may provide to a Government End User or, if Partner is a Government End User, such2

Government End User will acquire, the Software and Documentation with only thoserights set forth in this Agreement.
11. TERM AND TERMINATION.
11.1. Termination. Forescout may terminate this Agreement at any time if Partneris in breach of any of the material terms or conditions provided herein (includingPartner’s payment obligations), and such breach remains uncured more than thirty(30) days following receipt of Forescout’s written notice of such breach. In addition,
Forescout may terminate this Agreement immediately if Partner (i) no longer has avalid Partner agreement with Forescout as described herein and as determined inForescout’s sole discretion, or (ii) becomes the subject of a voluntary or involuntary
petition in bankruptcy or any proceeding relating to insolvency, receivership,
liquidation, or composition for the benefit of creditors.
11.2. Effect of Termination. Upon any termination of this Agreement, Partner shallimmediately cease using the Products, destroy the Products (and its accompanying
Documentation) or return the Products (and its accompanying Documentation) to
Forescout. Upon Forescout’s request, Partner shall provide Forescout a certificate ofdestruction evidencing compliance with the foregoing with respect to such Products.
Any Section or provision of this Agreement, that by its nature should reasonably
survive termination hereof, shall survive in accordance with their respective terms.
12. GENERAL
12.1. Independent Contractors. The relationship of Forescout and Partner is that ofindependent contractors. There is no relationship of agency, partnership, joint
venture, employment or franchise between the parties. Neither party has theauthority to bind the other or to incur any obligation on the other’s behalf or torepresent itself as the other’s agent or in any way that might result in confusion as tothe fact that the parties are separate and distinct entities.
12.2. Force Majeure. Neither party shall be liable for any loss, damage, or penalty
resulting from delays or failures in performance resulting from acts of God, material
shortages, or other causes beyond such party’s remedy or control.
12.3. Governing Law. This Agreement will be governed and construed under the lawsof the State of California without giving effect to any choice of law principles thatwould require the application of the laws of a different jurisdiction. Partner
irrevocably and unconditionally (i) consents to submit to the exclusive jurisdiction of
the state and federal courts located in Santa Clara County, California, USA (“Venue”)
for the resolution of any dispute between the parties concerning the Products orservices specified herein; (ii) agrees not to commence any such proceedings except insuch courts; and (iii) waives any objection to the laying of venue of any suchproceedings in the state or federal courts located in the Venue.
12.4. Notices. All notices under this Agreement are required to be sent either via
electronic delivery or by commercial overnight courier with written verification ofdelivery. All notices so given will be deemed received upon the date of receipt if byelectronic delivery or two (2) days after dispatch for courier deliveries. If to Partner,

all notices shall be sent to the address in the signature block below. If to Forescout,
all notices shall be sent to generalcounsel@forescout.com or to 190 W. Tasman Drive,
CA, 95134, USA; Attention: General Counsel.
12.5. Severability. If any provision of this Agreement is held invalid by the final
determination of any court or other tribunal of competent jurisdiction, such provision
shall be reformed only to the extent necessary to make it enforceable, and shall notaffect the enforceability of (i) such provision under other circumstances orjurisdictions, or (ii) any other provision under all circumstances or jurisdictions. The
invalid or unenforceable provision will be construed by such judicial body so as to be
enforceable to the maximum extent compatible with applicable law.
12.6. Headings. The headings used in this Agreement are for ease of reference only
and will not be used to interpret any aspect of this Agreement.
12.7. Assignment. Partner may not assign or transfer this Agreement, nor any rights
or obligations under this Agreement without the prior written consent of Forescout.
Any attempted assignment in violation of the foregoing shall be void and of no effect.
However, notwithstanding the foregoing, either party may assign this Agreement in
its entirety to (i) any entity under common control with that party; (ii) any successor
in interest to such party by way of merger or consolidation located in the UnitedStates; or (iii) a purchaser of all or substantially all of the assets of such party, provided
that the assignee agrees in writing to be bound by all of the terms and conditions of
this Agreement. This Agreement shall be binding on and inure to the benefit of thesuccessors and permitted assigns of the parties.
12.8. Entire Agreement. This Agreement constitutes the entire agreement between
Forescout and Partner with respect to the subject matter hereof, and supersedes all
prior agreements, understandings and negotiations, both written and oral, between
the parties with respect to such subject matter. No waiver, amendment or
modification of any provision of this Agreement shall be enforceable against
Forescout unless it is in writing and signed by Forescout. Except for the exclusive
remedies specified herein, each party will have all rights and remedies available to it
at law or in equity for the protection of its rights hereunder, including an injunction
enjoining the breach or threatened breach of this Agreement. This Agreement is notgoverned by the United Nations Convention of Contracts for the International Sale ofGoods or the Uniform Computer Information Transactions Act, the application of eachof which is hereby expressly excluded.
12.9. Counterparts. If applicable, this Agreement may be executed in two (2)counterparts, both of which taken together shall constitute one (1) single agreement
between the parties. The parties may execute this Agreement by electronic signature
which shall be deemed an original signature for all purposes. The parties agree that aversion of this Agreement transmitted by means of electronic message or electronic
record (electronic mail, electronic data interchange), once duly signed by theauthorized representatives of each party, shall constitute a binding agreement andshall have the same force and effect as a document bearing original signatures.

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