SOFTWARE TERMS AND CONDITIONS
This Software License Agreement (“Agreement”) sets forth the terms and conditions under which SecuritySnares, Inc. (“SecuritySnares”) will provide access to certain proprietary endpoint device management technology and software (the “Software”) to you. This Agreement supplements the Order (if applicable) executed between Company and SecuritySnares (“Order”). This Agreement sets forth the terms and conditions under which Company may Use (as defined herein) SecuritySnares’ Software.
THIS AGREEMENT GOVERNS YOUR USE OF THE PROPRIETARY SOFTWARE MADE AVAILABLE BY SECURITYSNARES AND YOUR USE OF THE RELATED SERVICES DELIVERED BY SECURITYSNARES. BY ACCEPTING THIS AGREEMENT WHEN EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. YOU WILL BE REFERRED TO AS “COMPANY” HEREIN. SecuritySnares reserveS the right, at ITS sole discretion, to change or modify portions of thIS AGREEMENT at any time. company’s continued use of the software OR services after the date any such changes become effective constitutes ITS acceptance of the new Terms.
1. LICENSE GRANT AND RIGHT OF USE
1.1. License Grant. Subject to all limitations and restrictions contained herein and the Order, SecuritySnares grants Company a subscription, software as a service (as further described in the applicable Order) (“Software”), nonexclusive, non-sublicensable, and non-transferable right to use the Software as intended and set forth in the SecuritySnares Documentation (“Use”). Upon termination or expiration of this Agreement for any reason, Company will cease, and will ensure the Company Personnel (defined below) cease, all use of the Software. SecuritySnares reserves all rights in the Software not expressly granted. For purposes of this Agreement “Company Personnel” means any employee or contractor of Company that has a Company-managed device using the Software. Notwithstanding the foregoing, Company remains fully liable to SecuritySnares for all breaches of this Agreement by Company Personnel and any other activity of Company Personnel with respect to the Software and this Agreement. Company agrees that its license of the Software is neither contingent on the delivery of any future functionality nor dependent on any comments made by SecuritySnares or its representatives regarding future functionality or features. For purposes of this Agreement, “Documentation” means any operator and user manuals, training materials, implementation guides, technical materials and other materials provided by SecuritySnares.
1.2. Company Restrictions. Except as expressly permitted under this Agreement, Company shall not transfer, license, assign, distribute, translate, reverse engineer, decompile, disassemble, or modify the Software or Confidential Information (as defined herein), duplicate the Software or Confidential Information or portions thereof, or allow any third party to do any of the foregoing. Further, Company shall not, and shall not permit the Company Personnel to, (i) directly or indirectly: sell, rent, lease, transfer, assign, or exploit the Software other than as expressly provided herein; (ii) copy any features, functions, or other attributes of the Software unless permitted herein or in the Documentation; or (iii) interfere with the integrity or performance of the Software. Neither Company nor any User shall provide to SecuritySnares any protected health information or any other personal information, without SecuritySnares’s prior written consent. Neither Company nor any Company Personnel may access or use the Software if any of them is a competitor of SecuritySnares or for the principal purpose of monitoring availability, performance or functionality.
1.3. Consent Rights. In order to enable Company and SecuritySnares to comply with data security rules and regulations applicable to Company’s use of the Software, Company hereby acknowledges and agrees that it shall be solely responsible for acquiring the consent of all Company Personnel who may interact with the Software and/or own or access a device that is covered by the Software. Such consent includes the right for the Software to acquire personally identifiable information, private or otherwise regulated data, including but not limited to IP address, to have certain information captured, maintained and tracked by the Software, and to have their device-related actions monitored, maintained, regulated and tracked by the Software. The Software shall not be downloaded on a device without the Company Personnel’s consent. Company shall not use the information other than as consented to by such Company Personnel. As of the Effective Date of the Order, the Company hereby covenants and agrees that it has obtained all consents as required hereunder and as required by law in order for SecuritySnares to provide the Software to Company, including without limitation the Software’s interaction with, and tracking of, Company Personnel and their data.
2. PAYMENT
2.1. Fees. Company shall pay SecuritySnares the fees indicated in an applicable Order. Unless otherwise provided in an Order, all fees shall be paid to SecuritySnares within thirty (30) days of the date of invoice provided by SecuritySnares to Company. If payment is not received when due, SecuritySnares reserves the right to, in addition to taking any other action at law or equity, to (i) charge interest on past due amounts at one and a half percent (1.5%) or the highest interest rate allowed by law, whichever is less, and to charge all expenses of recovery (including reasonable attorneys’ fees), (ii) suspend Company’s access to and use of the Software until overdue amounts are paid in full, including any interest assessed on the overdue amounts, and (iii) terminate this Agreement, the Order and access to the Software.
2.2. Taxes. The license, service fees, and other amounts required to be paid hereunder do not include any amount for taxes or levy (including interest and penalties). Company shall reimburse SecuritySnares and hold SecuritySnares harmless for all sales, use, VAT, excise, property or other taxes or levies which SecuritySnares is required to collect or remit to applicable tax authorities. This provision does not apply to SecuritySnares’s income or franchise taxes, or any taxes for which Company is exempt, provided Company has furnished SecuritySnares with a valid tax exemption certificate.
2.3. Increase in Fees. The Software license fee is assessed based on the number of devices that the Company has that are covered by the Software. The number of devices will be calculated on the Order Effective Date and on the first day of each Renewal Term. In the event there is an increase of more than five percent (5%) in the number of devices covered by Company’s use of the Software, the Software License Fee shall be proportionally adjusted for the then-current Term. Any additional fee for such additional devices shall be added to the Software License Fee due and payable to SecuritySnares in accordance with the terms of this Order Form. For purposes of this Agreement, “devices” means network or device endpoints where the Software is deployed. Each Renewal Term is subject to a 5% increase in Annual Fees.
3. SERVICES.
3.1. Company will provide SecuritySnares with reasonably necessary cooperation, data and information to integrate the Software into Company’s infrastructure. SecuritySnares shall use commercially reasonable efforts to provide corrections to reported problems that (i) prevent the Software from conforming in material respects to its specifications in the Documentation, and (ii) are replicated and diagnosed by SecuritySnares as defects in the Software (“Maintenance Services”). SecuritySnares will also provide Software support in accordance with SecuritySnares’s standard service levels. SecuritySnares shall not be obligated to provide Maintenance Services for any software other than the generally available Software delivered to Company pursuant to this Agreement.
3.2. SecuritySnares shall have the right to use third parties, including employees of SecuritySnares’s affiliates and subsidiaries (“Subcontractors”) in performance of its obligations and services hereunder, including any Maintenance Services and any activities to improve the Software. For purposes of this Section, all references to SecuritySnares or its employees shall be deemed to include such Subcontractors.
4. OWNERSHIP
4.1. Reservation of Rights. By signing the Order, Company irrevocably acknowledges that, subject to the licenses granted herein, Company has no ownership interest in the Software or SecuritySnares materials, including Documentation, provided to Company. SecuritySnares shall own all right, title, and interest in such Software and SecuritySnares materials, including Documentation, subject to any limitations associated with intellectual property rights of third parties. SecuritySnares reserves all rights not specifically granted herein. Any result or creation derived from Use of the Software is SecuritySnares’s property. Company agrees that no proprietary materials created in connection with this Agreement are “works made for hire” as that term is used in connection with the U.S. Copyright Act. To the extent that, by operation of law, Company owns any intellectual property rights in such proprietary materials, Company hereby irrevocably assigns and transfers to SecuritySnares all rights, title and interest in such proprietary materials. Notwithstanding any other term of this Agreement, SecuritySnares shall have a paid-up, royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use and exploit any ideas, suggestions, enhancement requests, recommendations or feedback provided by Company or any Users relating to the Software.
4.2. Data. Company shall own all data that is accessed by the Software including, but not limited to, any Company files or device data (“Company Data”). Company represents and warrants it has acquired all rights and consents to disclose Company Data to SecuritySnares, including without limitation, for the uses set forth herein. Company hereby grants to SecuritySnares a perpetual, non-exclusive, worldwide, sublicensable, transferable license to use the Company Data for the purposes of: (i) providing the Software to Company; (ii) improving the Software; and (iii) SecuritySnares’s internal business purposes. Nothing in this Agreement shall preclude SecuritySnares from using in any manner or for any purpose it deems necessary, the know-how, techniques, or procedures acquired or used by SecuritySnares in the performance of services hereunder. SecuritySnares owns and shall continue to own all right, title and interest in and to all aggregate or anonymized data and any statistical information, benchmarking, comparison, and other analytics or analyses created or developed by SecuritySnares from performance and usage data generated through Company’s or any User’s use of the Software (collectively, “Aggregate Data”). Aggregate Data will be reasonably de-identified by SecuritySnares.
5. CONFIDENTIALITY
5.1. Definition. “Confidential Information” includes all confidential or proprietary information disclosed by either party, on or after the Order Effective Date, and generally not publicly known, whether tangible or intangible and in whatever form or medium provided, as well as any information generated by a party that contains, reflects, or is derived from such information.
5.2. Confidentiality of Software. Company may use SecuritySnares’s Confidential Information solely in connection with the Software and pursuant to the terms of this Agreement. All Confidential Information in tangible form shall be marked as “Confidential” or the like or, if intangible (e.g. orally disclosed), shall be designated as being confidential at the time of disclosure and shall be confirmed as such in writing within thirty (30) days of the initial disclosure. Notwithstanding the foregoing, the following is deemed SecuritySnares Confidential Information with or without such marking or written confirmation: (i) the Software and other related materials furnished by SecuritySnares; (ii) the oral and visual information relating to the Software; and the terms and conditions of this Agreement.
5.3. Exceptions. Without granting any right or license, the obligations of the parties hereunder shall not apply to any material or information that: (i) is or becomes a part of the public domain through no act or omission by the receiving party; (ii) is independently developed by the other party without use of the disclosing party’s Confidential Information; (iii) is rightfully obtained from a third party without any obligation of confidentiality; or (iv) is already known by the receiving party without any obligation of confidentiality prior to obtaining the Confidential Information from the disclosing party. In addition, neither party shall be liable for disclosure of Confidential Information if made in response to a valid order of a court or authorized agency of government, provided that notice is promptly given to the disclosing party so that the disclosing party may seek a protective order and engage in other efforts to minimize the required disclosure. The parties shall cooperate fully in seeking such protective order and in engaging in such other efforts.
5.4. Ownership of Confidential Information. Nothing in this Agreement shall be construed to convey any title or ownership rights to the Software or other Confidential Information to Company or to any patent, copyright, trademark, or trade secret embodied therein, or to grant any other right, title, or ownership interest to the SecuritySnares Confidential Information. Neither party shall, in whole or in part, sell, lease, license, assign, transfer, or disclose the Confidential Information to any third party and shall not copy, reproduce or distribute the Confidential Information except as expressly permitted in this Agreement. Each party shall take every reasonable precaution, but no less than those precautions used to protect its own Confidential Information, to prevent the theft, disclosure, and the unauthorized copying, reproduction or distribution of the Confidential Information.
5.5. Non-Disclosure. Each party agrees at all times to keep strictly confidential all Confidential Information belonging to the other party. Each party agrees to restrict access to the other party’s Confidential Information only to those employees or Subcontractors who (i) require access in the course of their assigned duties and responsibilities; and (ii) have agreed in writing to be bound by provisions no less restrictive than those set forth in this Section. Neither party shall export, disseminate or otherwise transfer, in writing, orally and/or electronically, the other party’s Confidential Information or the Software outside of the United States.
5.6. Injunctive Relief. Each party acknowledges that any unauthorized disclosure or use of the Confidential Information would cause the other party imminent irreparable injury and that such party shall be entitled to seek, in addition to any other remedies available at law or in equity, temporary, preliminary, and permanent injunctive relief in the event the other party does not fulfill its obligations under this Section.
6. REPRESENTATIONS; WARRANTY
6.1. Authorized Representative. Company and SecuritySnares warrant that each has the right to enter into this Agreement and that the Agreement shall be executed by an authorized representative of each entity.
6.2. Disclaimer of Warranties. Company acknowledges and agrees that it is not relying on any statement or warranty not expressly provided herein with respect to the Software or maintenance, or other services provided hereunder. Company acknowledges and agrees that any information from the Software is informational only and should not be Company’s sole basis for actions or omissions. Company is solely responsible for its use of the Software and ensuring the accuracy of any Company Data. EXCEPT AS OTHERWISE STATED IN THIS AGREEMENT, THE SOFTWARE IS PROVIDED “AS IS” AND SECURITYSNARES MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. FURTHER, SECURITYSNARES MAKES NO REPRESENTATIONS OR WARRANTIES THAT ANY INFORMATION THAT IS PROVIDED TO ANY USER OR END USER OF THE SOFTWARE WILL BE ACCURATE AND WITHOUT ERROR. SECURITYSNARES IS NOT LIABLE FOR ANY CYBER ATTACK, DATA LOSS OR OTHER DAMAGES THAT MAY OCCUR AS A RESULT OF COMPANY’S USE OF THE SOFTWARE.
6.3. No Modifications. Notwithstanding anything to the contrary in this Section, any and all warranties under this Agreement are VOID if Company has made changes to the Software or has permitted any changes to be made other than by or with the express, written approval of SecuritySnares.
7. INDEMNITY
Except to the extent caused by SecuritySnares’s gross negligence or intentional misconduct relating to the Software, Company shall indemnify defend and hold harmless, at its sole expense, SecuritySnares for any third party claim, demand, or suit (“Claim”), arising out of (i) Company’s or a User’s use of the Software; (ii) any Company Data, including any information scraped by the Software from Company’s website; and/or (iii) Company’s breach of this Agreement, including, but not limited to Company’s failure to obtain the necessary consents required by Section 1.3 above; and shall indemnify and hold SecuritySnares harmless from and against any and all damages, fines, penalties, costs, expenses and/or fees (including reasonable attorney’s fees) awarded or assessed against SecuritySnares in association with such Claim, or reached through a negotiated settlement of a Claim.
8. LIMITATION OF LIABILITY
8.1. Liability Cap. IN NO EVENT SHALL SECURITYSNARES BE LIABLE UNDER ANY THEORY OF LIABILITY, WHETHER IN AN EQUITABLE, LEGAL, OR COMMON LAW ACTION ARISING HEREUNDER FOR CONTRACT, STRICT LIABILITY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, FOR DAMAGES WHICH, IN THE AGGREGATE, EXCEED THE AMOUNT OF THE FEES PAID BY COMPANY FOR THE SOFTWARE IN THE SIX MONTHS PRIOR TO THE CLAIM AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
8.2. Disclaimer of Damages. IN NO EVENT SHALL SECURITYSNARES BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND AND HOWEVER CAUSED INCLUDING, BUT NOT LIMITED TO, BUSINESS INTERRUPTION, LOSS OR DATA, DATA ACCURACY, OR LOSS OF PROFITS, BUSINESS OPPORTUNITIES, OR GOODWILL EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
9. TERM AND TERMINATION
9.1. Renewal. The term of this Order and Company’s use of the Software shall commence on and be effective as of the Order Effective Date set forth above and continue for the period set forth above (the “Initial Term”). The Initial Term shall be renewed automatically for successive periods of equal duration (each such period, a “Renewal Term” and, together with the Initial Term, the “Term”) unless a party provides the other party with written notice, delivered at least forty-five (45) days before the end of the Initial Term or the then-current Renewal Term, as applicable, of its intent not to renew this Order for any subsequent Renewal Term.
9.2. Termination. This Agreement and any license created hereunder may be terminated by either party (i) on thirty (30) days written notice to the other party if the other party fails to perform any other material obligation required of it hereunder, and such failure is not cured within such thirty (30) day period; or (ii) by a party if the other party files a petition for bankruptcy or insolvency, has an involuntary petition filed against it, commences an action providing for relief under bankruptcy laws, files for the appointment of a receiver, or is adjudicated a bankrupt concern. Upon termination of this Agreement, neither Company nor any User shall access the Software and Company shall not circumvent any security mechanisms contained therein.
9.3. Other Remedies. Termination of this Agreement shall not limit SecuritySnares from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Company’s obligation to pay all fees that have accrued or are otherwise owed by Company under this Agreement.
10. MISCELLANEOUS
10.1. Compliance with Laws. Company agrees to comply with all applicable laws, regulations, and ordinances relating to its performance under this Agreement. The parties agree that the Agreement shall not be governed by the United Nations Convention on the International Sale of Goods or by UCITA, the application of which is expressly excluded. SecuritySnares’s Software, products, technology and services are subject to U.S. and local export control and sanctions laws. Company acknowledges and agrees to the applicability of and its compliance with those laws. Company agrees that it will not receive, use, transfer, export or re-export any Software in a way that would cause SecuritySnares to violate those laws. Company also agrees to obtain any required licenses or authorizations.
10.2. Assignment. This Agreement may not be assigned, in whole or in part, by Company to any third party without the prior written consent of SecuritySnares. Any such attempted assignment shall be null and void. SecuritySnares may freely assign this Agreement to any affiliate or third party, provided that such third party agrees to be bound by the terms hereof.
10.3. Survival. The provisions set forth in Sections 2, 5, 6.2, 7, 8, and 9 of this Agreement shall survive termination or expiration of this Agreement and any applicable license hereunder.
10.4. Notices. SecuritySnares may give notice by means of a notification on the Software, electronic mail to Company’s e-mail address in the Order or otherwise on file with SecuritySnares, or by written communication sent by first class mail or pre-paid post to Company’s address on file with SecuritySnares. Company may give notice to SecuritySnares at any time by letter sent by e-mail to legal@SecuritySnares.com or by letter delivered first class mail to SecuritySnares at the address set forth in the Order. All notices shall be deemed to have been given five days after mailing (if sent by first class mail) or twenty-four (24) hours after sending by e-mail. Any notice of material breach shall clearly define the breach including the specific contractual obligation that has been breached.
10.5. Force Majeure. SecuritySnares shall not be liable to Company for any delay or failure of SecuritySnares to perform its obligations hereunder if such delay or failure arises from any cause or causes beyond the reasonable control of SecuritySnares. Such causes shall include, but are not limited to, acts of God, floods, fires, loss of electricity or other utilities, or delays by Company in providing required resources or support or performing any other requirements hereunder.
10.6. Restricted Rights. Use of the Software by or for the United States Government is conditioned upon the Government agreeing that the Software is subject to Restricted Rights as provided under the provisions set forth in FAR 52.227-19. Company shall be responsible for assuring that this provision is included in all agreements with the United States Government and that the Software, when delivered to the Government, is correctly marked as required by applicable Government regulations governing such Restricted Rights as of such delivery.
10.7. Entire Agreement. This Agreement constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes all proposals and prior discussions and writings between the parties with respect thereto. Any signed copy of this Agreement made by reliable means (e.g., photocopy or facsimile) shall be considered an original.
10.8. No Waiver. No failure or delay in enforcing any right or exercising any remedy will be deemed a waiver of any right or remedy.
10.9. Severability and Reformation. Each provision of this Agreement is a separately enforceable provision. If any provision of this Agreement is determined to be or becomes unenforceable or illegal, such provision shall be reformed to the minimum extent necessary in order for this Agreement to remain in effect in accordance with its terms as modified by such reformation.
10.10. Choice of Law; Venue. THIS AGREEMENT SHALL BE GOVERNED AND INTERPRETED BY THE LAWS OF THE STATE OF MICHIGAN WITHOUT REGARD TO THE CONFLICTS OF LAW PROVISIONS OF ANY STATE OR JURISDICTION. THE PARTIES AGREE THAT ANY LITIGATION ARISING BETWEEN THE PARTIES IN RELATION TO THIS AGREEMENT SHALL BE INITIATED AND MAINTAINED IN THE STATE OR FEDERAL COURTS HAVING JURISDICTION OVER WASHTENAW COUNTY, MICHIGAN, AND THE PARTIES HEREBY IRREVOCABLY SUBMIT TO EXCLUSIVE JURISDICTION OVER VENUE OF SUCH COURTS.