KITECYBER END USER LICENSE AND SERVICES AGREEMENT
IMPORTANT: PLEASE READ THESE TERMS BEFORE ORDERING, INSTALLING, CONFIGURING AND/OR USING THE KITECYBER SOFTWARE OR SAAS OFFERINGS. THIS DOCUMENT DESCRIBES THE RELATIONSHIP BETWEEN THE APPLICABLE KITECYBER ENTITY AS DETERMINED IN ACCORDANCE WITH THIS DOCUMENT (“KITECYBER”) AND YOU (EACH OF KITECYBER AND YOU, A “PARTY” AND, COLLECTIVELY, THE “PARTIES”). THIS DOCUMENT ALSO MAKES REFERENCE TO ONE OR MORE ADDITIONAL DOCUMENTS WHICH ARE INCORPORATED INTO THIS DOCUMENT BY REFERENCE (“SUPPLEMENTAL TERMS”) (COLLECTIVELY WITH THIS DOCUMENT, THE “AGREEMENT”). THIS AGREEMENT WILL BECOME EFFECTIVE ON THE DATE YOU ACCEPT THE TERMS OF THIS AGREEMENT (THE “EFFECTIVE DATE”). BY INSTALLING, CONFIGURING, AND/OR USING THE SOFTWARE OR SAAS OFFERING IN ANY WAY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THE ENTITY OR INDIVIDUAL IDENTIFIED AS THE CUSTOMER (“YOU” OR “YOUR”) TO THIS AGREEMENT, AND ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY THE TERMS OF AND BECOME A PARTY TO THIS AGREEMENT WITH KITECYBER. KITECYBER DOES NOT AGREE TO ANY OTHER TERMS, INCLUDING WITHOUT LIMITATION ANY TERMS ON YOUR PURCHASE ORDERS OR INVOICES. IF YOU HAVE ENTERED INTO A SEPARATE WRITTEN AGREEMENT WITH KITECYBER REGARDING THE SOFTWARE OR SAAS OFFERING (“SEPARATE AGREEMENT”), THE TERMS OF SUCH SEPARATE AGREEMENT SHALL CONTINUE IN FULL FORCE AND EFFECT, AND THIS AGREEMENT SHALL NOT APPLY. NOTWITHSTANDING, THIS AGREEMENT WILL REPLACE AND NEGATE ANY SUCH SEPARATE AGREEMENT IN ITS ENTIRETY
All references to “Kitecyber” shall mean the entity identified below in the same geographic region as you:
Cerebral Systems, Inc., a Delaware corporation, in USA
1. DEFINITIONS. Certain capitalized terms shall have the meanings set forth below in this Agreement.
a. “Affiliate” means any legal entity that controls, is controlled by or is under common control with you or Kitecyber (as applicable); where ‘control’ refers to ownership of more than fifty percent (50%) of voting securities.
b. “Analyst” means an individual employed by you or who otherwise provides services (whether as an independent contractor or otherwise) to you, who has login access to manage and use the Software.
c. “Asset” means (i) any Device or other asset which has an Operating System, whether physical or virtual, that is tracked by or input into Kitecyber’s asset management Software; or (ii) every physical and virtual object (including but not limited to network devices, applications, databases, objects in the cloud, IoT, or mobile devices which are typically identified by a unique IP or MAC address, web application software and databases) that is registered, managed, and discovered by Kitecyber’s risk management Software as measured by overall instances which you and/or your Affiliates use.
d. “Beta” means a version of the Software that is still in its testing phase and has not yet been released commercially.
e. “Confidential Information” means (i) any non-public information disclosed by one Party to the other Party, either directly or indirectly, whether communicated in writing, orally or by inspection of tangible objects (including, without limitation, pricing, trade secrets, product plans, products, services, customers, Software, designs, inventions, processes, drawings, engineering, marketing or financial information), which is designated as “Confidential,” “Proprietary” or some similar designation; and (ii) this Agreement, any and all non-public information relating to any Software and any associated training, Documentation, and other related materials, regardless of whether or not such materials are marked as “Confidential,” “Proprietary” or some similar designation.
f. “Device” means each electronic device using the Software including without limitation (a) a physical device such as a computer, handheld device, workstation, console, server, or any other electronic device; (b) a virtual machine, such as an operating environment that may be running concurrently with another operating environment on a single physical device; or (c) an electronic or virtual mailbox (e.g., a mailbox for email).
g. “Connection” means anytime a Device is managed by the Software or Devices to which services are provisioned or furnished by the Software.
h. “Documentation” means, collectively, the official product operation instructions, release notes and user manuals provided by Kitecyber for the Software, in electronic or written form, that Kitecyber has made publicly available.
i. “Enrolling” or “Enrolled” means the act of manually (for example, by explicit user or administrative action) or automatically making a Device known to the Software, such that the Software subsequently has knowledge of the Device and establishes an initial management connection with the Device;
j. “Invoice” means the relevant Kitecyber or Reseller quotation, order and/or invoice.
k. “Operating System” means an identifiable piece of software that runs on a physical or virtual device which controls the functions of the device and is discoverable and/or manageable over a network.
l. “Kitecyber Platform” means any SaaS software, User device software, marketed and sold by Kitecyber.
m. “Professional Services” means any of Kitecyber’s deployment, consulting, training, and education services to be performed by Kitecyber or its subcontractors to the extent identified in a statement of work signed by both Parties referencing this Agreement.
n. “Registered Device” means a Device that has been Enrolled. A Device shall be considered a Registered Device from the time of its Enrolling, until the time the Device is explicitly marked as “removed” (also referred to as “retired”, “wiped” or “deleted”).
o. “Reseller” means an Kitecyber authorized reseller or distributor.
p. “SaaS Offering” means Kitecyber’s provision of the Software under a Subscription License and as a hosted service under this Agreement.
q. “Software” means the object code form of the Kitecyber proprietary software product(s) made available by Kitecyber under this Agreement, as a SaaS Offering, and includes any accompanying components, binary files that run on endpoint devices, files, modules, audio-visual content, activation keys, Documentation, Updates, and Upgrades to which you are entitled hereunder.
r. “Support and Maintenance Services” means those technical support and maintenance services for the Software made available by Kitecyber under this Agreement.
s. “Updates” means any updates, minor enhancements, corrections, bug fixes, patches or functions added to or removed from the Software but shall not include any new software or functionality that Kitecyber markets and sells separately.
t. “Upgrades” means major releases of a product that replace a prior version of that product.
u. “User” means an individual employed by or who otherwise provides services (whether as an independent contractor or otherwise) to you who is supported with or uses the Software.
v. “Version” means one or more releases of the Software with a common release naming convention.
2. GRANT OF LICENSE.
a. Software License. Subject to the terms and conditions of this Agreement and in accordance with the applicable Documentation and the License Type, License Model, Version and quantities of licenses purchased and paid for by you, Kitecyber hereby grants you (as applicable) (i) a limited right to access and use the SaaS Offering, (ii) a non-exclusive, non-transferable, non-sublicensable license (except as set forth within this Agreement) to use the Software
Users shall use and/or access the Software solely on behalf of and for the benefit of you or your applicable Affiliates and in accordance with the license purchased and the terms of this Agreement. You shall be responsible for all acts and omissions committed by any Users and any actions by such Users that would be a breach of this Agreement, if taken by you, shall be deemed a breach of this Agreement. you agree that your purchase of the Software is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Kitecyber with respect to future functionality or features.
Kitecyber provides the Software under Subscription License only.
• “Subscription License”. A time-limited license to use the Software that expires at the end of a specified period. Software licensed under a Subscription License may contain disabling code to automatically disable itself upon the expiration of the subscription term.
Within the License Types, Kitecyber offers:
• “User-Based”. Under the User-Based model, the Software may be used by a specific User on any 3 User’s Devices, unless otherwise limited in the Invoice. You may not transfer a license from one User to another User more than once every thirty (30) days. A license is required for each User.
b. Entitlement. The Invoice shall set forth the License Type, License Model, and the means of provisioning of the Software which you are purchasing.
c. Evaluation, Community or Beta. If the Software is offered to you as an evaluation, trial, Beta, then you are granted a limited, non-exclusive, non-sublicensable, non-transferable license to use such licenses solely on a trial use basis to, notwithstanding any contrary provision in this agreement, use the software only for internal demonstration, test or evaluation purposes in a non-production environment (except as otherwise allowed for herein or permitted by Kitecyber in writing), and for the period specified on the software license key (if not indicated, this period will be forty-five (45) days from delivery) following which, unless the software automatically disables itself, you are required to immediately remove and destroy all copies of the software, including all backup copies. You acknowledge that Kitecyber is not obligated to permit further use of the Software past the expiration date and that you have no right to Support and Maintenance Services with any such evaluation licenses. Notwithstanding anything to the contrary, a community edition license may be used in a production environment, but you agree and understand that you assume all risks and liabilities for any such usage in a production environment. NOTWITHSTANDING ANY CONTRARY PROVISION IN THIS AGREEMENT THE EVALUATION, TRIAL, BETA, OR COMMUNITY EDITION SOFTWARE IS PROVIDED “AS-IS” WITHOUT SUPPORT OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. Save for death and personal injury caused by Kitecyber’S negligence, Kitecyber shall have no liability of any kind in any circumstances whatsoever to you in respect of ANY SUCH EVALUATION, TRIAL, BETA, OR COMMUNITY EDITION Software. In particular, Kitecyber shall have no liability in any circumstances whatSOever for any data loss or corruption and you agree that you have sole responsibility for protecting your data during your use of and access to the software.
3. SAAS OFFERINGS.
a. SaaS Offering Supplemental Terms.
Per your SaaS offering you agree and are subject to the terms and conditions contained in this Agreement and Kitecyber’s then current Supplemental Terms for the SaaS Offering accompanying this document.
4. RESTRICTIONS. The Software is licensed, not sold. you may not use the Software for any purpose beyond the scope of the licenses granted in this Agreement, and all other rights are reserved by Kitecyber or its suppliers. Without limiting the generality of the foregoing and except as expressly permitted in this Agreement, you will not and will not permit any User or third party to: (a) authorize or permit access to or use of the Software by persons other than Users or Analysts; (b) assign, sublicense, distribute, sell, lease, rent, novate or otherwise transfer or convey the Software, or Documentation to any third party without Kitecyber’s prior written consent, except as set forth in the assignment provision in this Agreement; (c) disclose the software license key to the Software to any third party; (d) use the Software in violation of any applicable law or regulation or to support or facilitate any illegal activity (e) pledge as security or otherwise encumber the rights granted under this Agreement; (f) modify, adapt or create any derivative works of the Software (or any component thereof) or the Documentation; (g) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any component of the Software except and only to the extent: (i) that applicable law expressly permits such actions despite this limitation; or (ii) such actions are required to debug changes to any third party open source software libraries linked to by the Software; (h) use the Software as a service provider or application service provider for third parties; (i) circumvent or attempt to circumvent any technical restrictions in the Software; (j) remove, alter or obscure any proprietary notices or legends from the Software or any copies thereof; (k) violate Kitecyber’s Acceptable Use Policy (accompanying document); (l) employ or authorize a competitor of Kitecyber to use or view the Software or Documentation without the prior written consent of Kitecyber; (m) perform any “mirroring” or “framing” of any part of the Software, or create internet links to the Software which include log-in information, user names, passwords, and/or secure cookies without Kitecyber’s prior written consent; (n) use the Software for purposes of product evaluation, benchmarking, or other comparative analysis intended for publication without Kitecyber’s prior written consent or (m) detach or separate any libraries, files, modules or other components embedded within the Software even if any such library, file, module or other component is separately licensable, or use any such modules, files or other components separately from the Software (except to the extent that a documented feature of the Software product is implemented by doing so).
To the extent that any applicable mandatory laws give you the right to perform any of the aforementioned activities without the consent of Kitecyber to gain certain information about the software, you hereby agree that, before you exercise any such rights, you shall first request such information from Kitecyber in writing detailing the purpose for which you need the information. Only if and after Kitecyber, at its sole discretion, denies your request, shall you exercise your statutory rights.
5. TITLE. Kitecyber and its licensors (if any) retain all rights, title, and interest, including all patent, copyright, trade secret, trademark, moral rights, and other intellectual property rights, in and to the Software and Kitecyber expressly reserves all rights not expressly granted under this Agreement. You hereby agree that the title and ownership to any intellectual property rights under this Agreement shall not transfer and/or pass to you.
6. SUPPORT AND MAINTENANCE SERVICES.
Standard Support and Maintenance Services, Updates and Upgrades are included in the price of the Software if it is purchased as a Subscription License or a SaaS Offering. You may purchase or upgrade Support and Maintenance Services for the Software separately. Except as set forth herein, you have no rights to any updates or upgrades unless you purchase Support and Maintenance Services for the Software. If you purchase Support and Maintenance Services for the Software, you are required to purchase and maintain such Support and Maintenance Services for all licenses of the Software.
7. PAYMENT. You agree to pay, without setoff or deduction, the amounts set forth in the Invoice. Fees for any Support and Maintenance Services shall be paid in advance of the relevant term covered. Renewal fees are due on or before the annual renewal date. Fees for the Software purchased as a Subscription License or a SaaS Offering shall be paid for either i) as a lump sum for the entire Initial Term or Renewal Term at the time of purchase, or ii) according to the annual payment schedule for each year of the Initial Term or Renewal Term set forth in the Invoice.
Kitecyber will provide the Professional Services as set forth on the applicable quote. Professional Services shall be delivered on either (a) a prepaid basis which will be invoiced upon receipt of a purchase order, or (b) a time and materials basis which will be invoiced monthly as the Professional Services are performed. In the event the Professional Services are performed on-site (and are not included in the price of the outcome-based, prepaid Professional Services package), Kitecyber will quote and invoice you a fixed daily rate to cover all of Kitecyber’s travel and accommodation expenses. All charges are non-refundable unless specifically stated otherwise in the relevant SOW.
Unless otherwise agreed, all such fees shall be due and payable within thirty (30) days from the date of the Invoice in U.S. Dollars, Euros, or British Pound Sterling, depending on the local currency of the contracting Kitecyber entity or Reseller, or as otherwise indicated in the Invoice. A hard copy purchase order number and VAT ID (where applicable) must be provided with all orders.
If you fail to make a payment when due, you agree that Kitecyber may charge interest at the lesser of a rate of one and one-half percent (1.5%) per month or the maximum rate allowed by law, which interest will accumulate on the outstanding balance on a daily basis until paid in full. You agree to reimburse Kitecyber for all reasonable costs, including legal fees and related costs, Kitecyber incurs in collecting any late payments and interest. Kitecyber will be entitled to terminate all licenses, and services provided hereunder upon thirty (30) days prior written notice to you if you fail to pay any required fees when due. If you fail to pay undisputed amounts in accordance with the terms and conditions of this Agreement for any SaaS Offering, Kitecyber shall have the right, in addition to any of its other rights or remedies, to suspend your access to the SaaS Offering, without liability to you until such amounts are paid in full.
Except as expressly provided otherwise in this Agreement, all payments by you (whether to Kitecyber or a Reseller) are nonrefundable and not available for credit for the purchase of other Software.
If you dispute any fees, taxes, or other charges billed by a reseller or Kitecyber under this agreement, you must notify Kitecyber, in writing, of the disputed amount and any relevant information regarding the circumstances of the dispute. Kitecyber shall acknowledge receipt of the disputed information in writing to you. All Parties agree to work cooperatively to resolve any such disputed amounts. If you fail to provide Kitecyber with a notice of such a disputed amount within twenty (20) business days following receipt of the Invoice for such disputed charge, then such amount is deemed undisputed and due.
All prices exclude value-added tax, sales tax, and any other applicable tax, unless expressly stated otherwise. In the event that any withholding, sales, value-added, use or other taxes or government fees, assessments or charges are payable because of this Agreement, then you agree to pay all such taxes, fees, assessments, and charges in addition to all other payments. If Kitecyber is required to make any such payments, you agree to reimburse Kitecyber for such payments promptly upon notice.
If you are purchasing the Software, Support and Maintenance Services and/or Professional Services through a Reseller, then the payment terms and associated payment obligations herein do not apply to you to the extent of such purchase(s), instead your payment terms and obligations with the Reseller would apply to any such purchase(s).
8. CONFIDENTIALITY. Each Party shall keep confidential, and not disclose to any third party (except each Party’s respective employees or staff members or as maybe required by law or any legal or regulatory authority) any Confidential Information which may be provided in connection with this Agreement. Information communicated orally will be considered to be Confidential Information if such information is identified as Confidential Information at the time of its disclosure, or if such information by its nature should reasonably be understood by the receiving Party to be confidential.
Notwithstanding anything to the contrary, Confidential Information will not include any information that: (a) was publicly known prior to the time of disclosure by the disclosing Party; (b) becomes publicly known after disclosure by the disclosing party to the receiving Party through no action or inaction of the receiving Party; (c) is already in the possession of the receiving Party at the time of disclosure by the disclosing Party (as shown by the receiving Party’s files and records) prior to the time of disclosure; (d) is obtained by the receiving Party from a third party without a breach of such third party’s obligations of confidentiality; or (e) is independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information (as shown by documents and other competent evidence in the receiving Party’s possession).
Notwithstanding the obligations set forth above, the receiving Party may disclose the Confidential Information of the disclosing Party to the limited extent such disclosure is required by law (this includes (i) an order of any court of competent jurisdiction or any regulatory, judicial, governmental or similar body or any taxation authority of competent jurisdiction; (ii) the rules of any listing authority or stock exchange on which its shares are listed; or (iii) the laws or regulations of any country to which its affairs are subject) to be disclosed by the receiving Party, provided that the receiving Party will promptly give the disclosing Party written notice of such requirement prior to any disclosure so that the disclosing Party may have sufficient time to seek a protective order or other appropriate relief.
Each Party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other Party. Without limiting the foregoing, each Party shall take at least those measures that it takes to protect its own most highly confidential information and shall ensure that its employees, consultants, contractors, or agents who have access to Confidential Information of the other Party have signed a non-use and non-disclosure agreement in content similar to the provisions hereof, prior to any disclosure of Confidential Information to such employees, consultants, contractors, or agents. The receiving Party shall remain liable for any non-compliance of such employee, consultant, contractor, or agent with the terms of this Agreement. Notwithstanding the foregoing, if you purchase the products and services under this Agreement from a Reseller, each Party may disclose the terms of this Agreement and any Invoice to such Reseller, subject to conditions of confidentiality.
9. INDEMNIFICATION.
a. Defense of Infringement Claims. Kitecyber will, at its expense, either defend you from or settle any claim, proceeding, or suit brought by a third party against you alleging that your use of the Software infringes or misappropriate any patent, copyright, trade secret, trademark, or other intellectual property right (“Infringement Claim”). You must (i) give Kitecyber prompt written notice of the Infringement Claim; (ii) grant Kitecyber full and complete control over the defense and settlement of the Infringement Claim; (iii) provide assistance in connection with the defense and settlement of the Infringement Claim as Kitecyber may reasonably request; (iv) comply with any settlement or court order made in connection with the Infringement Claim; and (v) not make any admission of liability, agreement or compromise in relation to the Infringement Claim nor defend or settle any Infringement Claim without Kitecyber’s prior written consent. you may participate in the defense of the Infringement Claim at your own expense and with counsel of your own choosing, subject to Kitecyber’s sole control over the defense and settlement of the Infringement Claim as provided above.
b. Indemnification of Infringement Claims. Kitecyber will indemnify you and your Affiliates from and pay: (i) all damages, costs, and reasonable attorneys’ fees finally awarded against you and your affiliates in any Infringement Claim; (ii) all out-of-pocket costs, including reasonable attorneys’ fees incurred by you in connection with the defense of an Infringement Claim (other than attorneys’ fees and costs incurred without Kitecyber’s consent after Kitecyber has accepted defense of the Infringement Claim and expenses incurred pursuant to the last sentence of the prior section); and (iii) all amounts that Kitecyber agrees to pay to any third party to settle any Infringement Claim.
c. Exclusions from Obligations. Kitecyber has no obligation to indemnify you for any Infringement Claim to the extent that it arises out of or is based upon (i) your use of the Software in combination with third-party products or services not authorized by Kitecyber or the Documentation; (ii) any aspect of the Software configured specifically for you to comply with designs, requirements, or specifications required by or provided by or on your behalf; (iii) use of the Software by you, any User, any Analyst, or any third party outside the scope of the rights granted in this Agreement; (iv) failure of you, any User, any Analyst, or any third party to use the Software in accordance with the Documentation or any instructions provided by Kitecyber; (v) failure of you to use the most recent version of the Software (including any Updates or Upgrades provided to you by Kitecyber) if use of the most recent version of the Software is required to avoid the Infringement Claim; or (vi) any unauthorized modification of the Software or SaaS Offering.
d. Infringement Remedies. In the defense or settlement of any Infringement Claim, Kitecyber may, at its sole option and expense: (i) procure for you a license to continue using the Software or SaaS Offering; (ii) replace or modify the allegedly infringing technology to avoid the infringement; or (iii) if the foregoing options are not commercially feasible in Kitecyber’s sole judgment, refund any prepaid, unused SaaS Offering fees as of the date of termination or Software license fees depreciated on a straight line basis over thirty-six (36) months. The foregoing states Kitecyber’s sole and exclusive liability, and your sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third-party intellectual property right by the Software or SaaS Offering.
e. Kitecyber Indemnitees. you agree to hold harmless, indemnify, or at your option, settle, any third party claim, suit or proceeding brought against Kitecyber, its Affiliates and their respective employees, officers and directors (“Kitecyber Indemnitee(s)”) arising out of (i) your unauthorized use of the Software and related services; (ii); Kitecyber’s compliance with your designs, specifications or instructions; (iii) your unauthorized modification of the Software or SaaS Offering; and (iv) your instructions or your failure to comply with the obligations as set forth in Section 15(c) of this Agreement and the DPA, and you shall pay all third party costs and damages awarded in judgment of such claim or agreed to in settlement of such claim between you and such third party; provided that Kitecyber Indemnitee(s): (a) provide you with prompt notification of the claim, such that you are not prejudiced by any delay in such notification; and (b) provide reasonable assistance in connection with the defense or settlement, at your expense.
10. LIMITED WARRANTY AND DISCLAIMER.
a. Limited Warranty. Kitecyber warrants that: (i) for a period of ninety (90) days from the date of purchase, the Software will perform substantially in accordance with the Documentation, (ii) for the duration of the applicable subscription term to the SaaS Offering, the SaaS Offering will perform substantially in accordance with the Documentation, and (iii) the Support and Maintenance Services and Professional Services will be provided in a professional and workmanlike manner. If the Support and Maintenance Services or Professional Services are not provided in a workmanlike manner, you have a period of thirty (30) days from delivery to provide written notice of your warranty claim. This limited warranty will not apply unless: (i) the Software has been properly installed and used at all times in accordance with the Documentation; (ii) no unauthorized modification, deletion or addition has been made to the Software, SaaS Offering, Support and Maintenance Services, or Professional Services; and (iii) Kitecyber receives written notice of the non-conformity within the warranty period. Kitecyber disclaims all warranty claims and any liability that may arise if and to the extent that the warranty claims and liability are caused by the acts of a third party that has provided support services, consulting services and/or professional services of any kind without Kitecyber’s approval. Kitecyber will use commercially reasonable efforts to deliver the Software to you free from any viruses and malicious programs or programming devices designed to modify, delete, damage, disable or provide unauthorized access to the software or your data.
b. Exclusive Remedy. Kitecyber and its Resellers’ entire liability and your exclusive remedy under this warranty will be, at the sole option of Kitecyber and subject to applicable law, (i) to repair or replace the Software, the SaaS Offering, Support and Maintenance Services and/or Professional Services to perform per the warranty within a reasonable time, (ii) to refund, on a prorated basis, the fees paid for the nonconforming SaaS Offering and terminate this Agreement and your right to use the SaaS Offering, or (iii) to refund the fees paid for the nonconforming Software, Support and Maintenance Services and/or Professional Services and terminate this Agreement and your right to use the Software (subject to you deleting all copies of the Software within your possession and control and certifying in writing to Kitecyber that you have done so).
c. Third Party Products and Services. As a convenience to you, Kitecyber resells certain products that are owned by third parties and are not licensed by Kitecyber (“Resale Products”). Resale Products are not included as part of the Software, are not required or necessary for use of the Software and will be identified on the Invoice as Resale Products. Any Resale Products provided by Kitecyber are provided pursuant to the terms of the applicable third-party agreement, and your use of any such Resale Products constitutes agreement to comply with the terms of the applicable third-party agreement. Kitecyber assumes no responsibility for, and specifically disclaims any liability or obligation with respect to, any Resale Products. All Resale Products are provided with the third party’s warranty and without any additional warranty of any kind, whether express or implied. If support and maintenance is offered for a specific Resale Product and you purchase directly from Kitecyber, Kitecyber shall distribute the applicable Resale Product error correction, update, upgrade, and other release provided to Kitecyber by the third-party licensor.
The Software may contain features designed to interface with applications or services provided or made available by third parties that are not In-Licensed Materials (“Third-Party Services”). In order to use a feature in connection with a Third-Party Service, you must have a subscription or license from the provider of the relevant Third-Party Service. If the Third-Party Services are no longer available or if the applicable third-party provider no longer allows the Third-Party Services to interface with the Software (for whatever reason), then such features will no longer be available or function in the Software and you will not be entitled to any refund, credit, or other compensation from Kitecyber or the provider of the applicable Third-Party Service. Kitecyber hereby disclaims all warranties, indemnities, obligations, and other liabilities in connection with any interface or integration with the Third-Party Service. Further, Kitecyber disclaims all warranties, indemnities, obligations, and other liabilities in connection with any Third-Party Service.
d. DISCLAIMER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT FOR THE ABOVE LIMITED WARRANTY, THE SOFTWARE, SAAS OFFERING, SUPPORT AND MAINTENANCE SERVICES, AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND “WITH ALL FAULTS” AND KITECYBER AND ITS LICENSORS MAKE NO WARRANTIES OR CONDITIONS OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF OPERABILITY, CONDITION, TITLE, NON-INFRINGEMENT, NON-INTERFERENCE, VALUE, ACCURACY OR QUALITY OF DATA, AS WELL AS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT. KITECYBER CANNOT GUARANTEE AND DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE OR PROVISION OF THE SAAS OFFERING WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS CAN BE CORRECTED. THE SOFTWARE AND SAAS OFFERING ARE NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE OR DISTRIBUTION WITH ANY EQUIPMENT, THE FAILURE OF WHICH COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
11. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES AGREE THAT NEITHER PARTY, ITS RESPECTIVE AFFILIATES OR ITS OR THEIR LICENSORS OR RESELLERS SHALL BE LIABLE FOR ANY LOSS OF INCOME, LOSS OF OPPORTUNITY OR PROFITS, LOSS OF GOODWILL, LOSS OF DATA OR FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES ARISING FROM USE OF THE SOFTWARE, UPDATES OR UPGRADES, THIRD PARTY SOFTWARE, SAAS OFFERING, OR OTHERWISE ARISING IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE DPA, THE SUPPORT AND MAINTENANCE SERVICES AND/OR PROFESSIONAL SERVICES, HOWSOEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE). TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY, ITS RESPECTIVE AFFILIATES OR ITS OR THEIR LICENSORS OR RESELLERS ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT PAID FOR THE AFFECTED SOFTWARE OR SAAS OFFERING, OR APPLICABLE SUPPORT AND MAINTENANCE SERVICE OR PROFESSIONAL SERVICE IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THIS LIMITATION WILL APPLY EVEN IF A PARTY, ITS AFFILIATES OR ITS OR THEIR LICENSORS OR RESELLERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE PARTIES ACKNOWLEDGE THAT THE FEES REFLECT THIS ALLOCATION OF RISK. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THE SOFTWARE IS NOT DESIGNED OR INTENDED FOR USE IN MISSION CRITICAL APPLICATIONS IN WHICH THE FAILURE OF THE SOFTWARE COULD CAUSE SUBSTANTIAL PROPERTY DAMAGE, PERSONAL INJURY, OR DEATH. KITECYBER DISCLAIMS ANY LIABILITY FOR USE OF THE SOFTWARE IN ANY SUCH MISSION CRITICAL APPLICATION(S). THE LIMITATIONS OF LIABILITY IN THIS SECTION DO NOT APPLY TO: (A) YOUR OBLIGATION TO PAY FEES PURSUANT TO SECTION 8 (PAYMENT); (B) ANY VIOLATION OF SECTION 4 (RESTRICTIONS); OR (C) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10 (INDEMNIFICATION).
12. TERM AND TERMINATION.
a. Term. The term of this Agreement will be the period specified in the Invoice, or if no period is specified, as otherwise agreed upon or until the Agreement is terminated (the “Initial Term”). At the end of the Initial Term, this Agreement will automatically renew for additional terms of one (1) year or as otherwise agreed to by the Parties (each a “Renewal Term”). Either Party may terminate this Agreement at the end of the Initial Term or any Renewal Term (as measured from the Effective Date) on ninety (90) days’ prior notice to the other Party.
b. Termination for Cause. Either Party may terminate this Agreement in the event that the other Party (i) materially breaches this Agreement and the breaching Party fails to remedy such breach (if such breach is capable of remedy) within thirty (30) days from the other Party’s written notice or (ii) becomes insolvent or bankrupt, is liquidated or is dissolved, or ceases substantially all of its business activities.
c. Early Termination. If you terminate the Agreement before the end of the Initial Term or Renewal Term for any reason other than a material breach of the Agreement by Kitecyber, the Kitecyber may assess and invoice you for all unpaid fees for the remainder of the Initial Term or Renewal Term. (“Termination Fees”). Additionally, Kitecyber may assess and invoice you for any upcoming renewal fees if you do not provide Kitecyber with written notice of your intent to terminate the Agreement at least ninety (90) days prior to the end of the Initial Term or a Renewal Term (“Renewal Fees”). You shall not be entitled to any refund or credit for any unused fees upon any such termination.
d. Effect of Termination. Upon termination of this Agreement, all rights granted herein will terminate and you must immediately remove and destroy all copies of the Software, including all backup copies. Any obligations to pay fees or expenses, including any applicable Termination Fees and/or Renewal Fees, incurred prior to or at the time of termination shall survive termination.
13. AUDIT.
a. SaaS Offering. As it relates to your purchase of a SaaS Offering, you agree Kitecyber has the right to continuously monitor your access and usage of the SaaS Offering. In the event Kitecyber discovers any access or usage that is not in compliance with this Agreement, Kitecyber may initiate a remote audit to determine the reason for the non-compliance. Without prejudice to any other rights and remedies, where such audit reveals any underpayment, you shall promptly pay Kitecyber at the then-current list price for the Subscription Licenses of the applicable SaaS Offering(s) needed to become compliant for (i) the current Subscription License term, and (ii) for the previous period of over usage.
c. If you fail to comply with Kitecyber’s requests in this Section 14, you will be in material breach of this Agreement and Kitecyber may reduce the functionality of the Software, restrict your access to the Software, or render the Software inoperative in addition to any other rights and remedies under this Agreement. you agree that Kitecyber’s right to review the Records and perform an audit under this Agreement will not require any amendments, addendum, or additional agreements.
14. GENERAL.
a. Applicable Laws. Each Party will comply with any statutes and regulations that apply to its performance under this Agreement, including but not limited to those applicable to the privacy and security of personal information, including trans-border data transfers and data breach notification requirements as required by law.
b. Data. In addition to any other provisions with respect to data use and handling included in this Agreement and any supplemental terms and conditions, Kitecyber uses and handles your data in accordance with its Privacy Policy located at https://www.kitecyber.com/privacy-policy/ .
c. Personal Data. Kitecyber’s processing of personal data is subject to its Data Processing Addendum found at https://www.kitecyber.com/terms-of-service/
d. Export Restriction. The Software may be subject to certain export and import control laws and regulations, including the United States Export Administration Act (and its associated regulations), and regulations of the United States Bureau of Industry and Security, the United Kingdom Department for Business, Innovation & Skills and other applicable agencies. you agree not to directly or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any country, jurisdiction or person to which export, re-export, or release is prohibited by applicable law. you shall comply with all applicable laws and complete all required undertakings (including obtaining any necessary export license or other governmental approval) prior to exporting, re-exporting, releasing, or otherwise making the Software available to Users outside your country of domicile. you represent that you and your affiliates are not on any denied persons or restricted party list or other list published by the U.S. Government of persons or entities to whom exports or re-exports of products subject to export controls are forbidden. You agree to promptly notify Kitecyber if at any time the representation in the foregoing sentence is no longer accurate.
f. Authorized Resellers. If you purchase the Software through a Reseller, you acknowledge that the Reseller and Kitecyber are independent of each other and that the Reseller does not have any authority to bind Kitecyber in any way, make any modifications to this Agreement or to make any warranties or representations on Kitecyber’s behalf and that Kitecyber has no liability whatsoever for any actions or omissions of any Reseller.
h. Governing Law. If the Agreement is with Kitecyber, Inc., it will be governed by the laws of the State of California without regard to conflict of laws principles and in any dispute arising out of or in connection with the Agreement you consent to the exclusive jurisdiction and venue in the State and Federal courts within Santa Clara County, California. Severability. If any provision of this Agreement is held to be unenforceable, void, or invalid under applicable law, such provision shall be deemed omitted and the remaining provisions will remain in full force.
i. Entire Agreement; English Language Agreement Controls. This Agreement, including without limitation the Supplemental Terms or DPA represent the complete and exclusive statement of the agreement between Kitecyber and you with respect to the Software, Support and Maintenance Services, and Professional Services, and supersedes all prior or contemporaneous oral or written communications and arrangements concerning the subject matter contained herein. Any printed or other terms and conditions on a purchase order or similar order document conflicting with, or purporting to add to, the terms and conditions of this Agreement or its exhibits and addenda will be of no force or effect. You agree that you shall have no remedies in respect of any statement, representation, assurance, or warranty (whether made innocently or negligently) that is not set out in this Agreement, or any document(s) expressly referred to herein. it. In the event of any inconsistency between this Agreement in English language and any translation of it into another language, the English language version of the Agreement shall control. Unless the Parties have a different agreement signed by both Parties, all use of the Software, SaaS Offering, Support and Maintenance Services, and Professional Services are subject to the terms of this Agreement.
k. No Waiver. No failure or delay to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other rights or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right shall preclude or restrict the further exercise of that or any other right or remedy. No statement or representation, other than by a Party’s authorized representative in a written waiver, shall constitute a waiver of any rights or remedies.
l. No Assignment. Except for a transfer of all or substantially all of a Party’s business and assets, whether by merger, sale of assets, sale of stock, or otherwise, neither Party shall assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement without the prior written consent of the other Party.
m. Force Majeure. Neither Party will incur any liability to the other Party for any loss or damage resulting from any delay or failure to perform any part of the Agreement if such failure or delay is caused by circumstances beyond the Parties’ reasonable control including, without limitation, flood, fire, acts of war, terrorism, earthquake, acts of God, and governmental acts, orders, or restrictions; however, inability to meet financial obligations is expressly excluded. Kitecyber shall not be liable for any failure of or delay in performing its obligations on account of your failure to perform your obligations under this Agreement.
n. Third Party Rights. A person who is not a party to the Agreement shall not have any rights under or in connection with it.
o. Variation. Any variation or amendment to the Agreement, except as provided for herein, shall only be binding when agreed in writing and signed by both Parties.
p. Counterparts. The Agreement may be executed in counterparts, each of which so executed will be deemed to be an original and such counterparts together will constitute one and the same agreement. The Agreement may be executed in person or electronically and delivered physically or electronically in Portable Document Format (“PDF”). The Parties agree that such electronic execution and delivery shall have the same force and effect as delivery of an original document with original signatures, and that each Party may use such facsimile, PDF, or e-signatures as evidence of the execution and delivery of this Agreement by all Parties to the same extent that an original signature could be used.
q. Survival. Sections 2, 3, 6, 7, 9, 10, 11, 12, 13, 14 and 15 shall survive the termination or expiration of this Agreement.
r. Referrals. You agree to make commercially reasonable efforts to work with Kitecyber in the event Kitecyber asks you to be part of Kitecyber’s reference or referral programs or to develop marketing materials about your experience as an Kitecyber customer. Specific activities, usage, rights and obligations will be covered in a separate written agreement for any such activities.
s. Contact Information. Please direct legal notices or other correspondence, if to Kitecyber, Inc., to 2010 EI Camino Real, Suite 821, Santa Clara, CA, 95050, Attention: Legal Department.
t. Intellectual Property and Trademark Usage. The Software and SaaS Offerings are protected by the U.S. and International Patents
u. In-Licensed Materials and Open Source. The Software may contain or may operate with software, services or other technology that is not owned by Kitecyber but has been licensed to Kitecyber by a third party and may be necessary for the full operation of the Software (“In-Licensed Materials”) or that is available under open source or free software licenses. The In-Licensed Materials may be subject to additional terms and conditions, as otherwise made available to you. Such terms and conditions are incorporated by reference herein. To the extent Kitecyber uses open-source software in the Software, the terms and restrictions in this Agreement shall not prevent or restrict you from exercising additional or different rights to such open-source software in accordance with the applicable open-source licenses.
v. Your Affiliates. Your Affiliates may purchase Kitecyber products and/or services under this Agreement by (i) executing a participation agreement with Kitecyber pursuant to which it agrees to be bound by the terms of this Agreement applicable to you, and (ii) passing an Kitecyber credit check, after which it may purchase Kitecyber products and/or services directly from Kitecyber or from a Reseller. For purposes of such purchase, references to “you” and “your ” shall be deemed to refer to your Affiliate making such purchase.w. Subcontractors. Kitecyber may engage third parties to perform obligations under this Agreement at Kitecyber’s discretion. However, Kitecyber is and will remain responsible under this Agreement for the performance of any such third parties.
