1.1 This Agreement governs all: (a) software applications that RiskIQ provides remote access to and use of (“SaaS Services”); (b)any managed security services (“MSS”); and (c) any implementation or other custom services related to the SaaS Services or otherwise (“Professional Services”) as set forth in one or more Order Forms or statements of work.. The SaaS Services, MSS and Professional Services are referred to herein collectively as the “Services.”
1.2 RiskIQ authorized channel partners ("Channel Partner") may issue Orders that reference this Agreement and specifically incorporate this Agreement by reference.
1.3 Capitalized terms not defined elsewhere in this Agreement shall have the meaning given to them in Section 12 below.
2. GRANT OF RIGHTS; RESTRICTIONS; RESPONSIBILITIES.
2.1 License. Subject to the terms and conditions of this Agreement, RiskIQ hereby grants to Customer a worldwide, fee-bearing, non-exclusive, non-transferable, non-sublicensable, non-assignable (except as permitted herein), license to access and use the SaaS Services during the Subscription Term solely for Customer’s internal business purposes.
2.2 Restrictions. Except as expressly set forth in this Agreement, Customer shall not directly or indirectly do any of the following: (a) copy, modify, alter, translate or make derivative works based on the Services; (b) license, sublicense, sell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third-party, including on or in connection with any service bureau, software-as-a-service, managed security service or any other similar technology or service; (c) interfere with or disrupt the integrity or performance of the Services or the data contained therein; (d) not submit any personal information or Confidential Information of Customer to the SaaS Services; (e) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile any Service or access it to; or (f) use any of the Services for the purpose of: (i) infringing the Intellectual Property Rights of any third party or any rights of publicity or privacy; (ii) building a similar or competitive product or service; or (iii) violation of any applicable law, statute, ordinance or regulation.
2.3 Reports. During the Subscription Term, Customer may use the Services to access Reports and may download and/or export such Reports, provided that Customer does not (a) remove, modify, or obscure any copyright or other proprietary notices included on the Reports or (b) share, disclose, or otherwise provide the Reports (in whole or in part) to any third-party (other than Customer’s Affiliates), without the prior written approval of RiskIQ.
2.4 Authorized Users; User IDs. This Section 2.4 applies to Order Forms that contain a reference to “Authorized User(s).” Access to and use of each SaaS Service are limited solely to Authorized Users and cannot be shared or used by more than one user but may be reassigned to new Authorized Users replacing former Authorized Users who no longer require use of the SaaS Service. Additional Authorized Users may be added pursuant to the applicable Order (with the additional fees being pro-rated for the remainder of the then-current term) and the term of additional Authorized Users shall be coterminous with the expiration of the subscription term in effect at the time the additional Authorized Users are added.
2.5 Additional Functionality and Features; Third-Party Content. Customer acknowledges and agrees thatits license is not contingent upon the delivery of any future functionality or features nor is it dependent upon any oral or written public comments made by RiskIQ with respect to future functionality or features.. As a convenience to Customer, the Services may make available links to third-party content, information, products or services (collectively, “Third-Party Content”). Any acquisition, access or use by Customer of such Third-Party Content and any exchange of data between Customer and any Third-Party Content is solely between Customer and the applicable third-party RiskIQ is not responsible for any Third-Party Content.
2.6 Support and Security. RiskIQ will provide reasonable support for the SaaS Services, through telephone, e-mail or other online mechanisms, at no additional charge. RiskIQ maintains industry standard physical, technical, and administrative safeguards in order to protect the Services and Customer Data.
3. PROPRIETARY RIGHTS.
3.1 Reservation of Rights. As between the Parties to this Agreement, subject to the limited rights expressly granted hereunder,,RiskIQ owns and retains all right, title and interest in and to the RiskIQ Property. No rights are granted to Customer except as expressly set forth herein.
3.2 Customer Data. As between the parties to this Agreement, Customer owns and retains all right, title and interest in and to Customer Data and all intellectual property rights therein. Customer hereby grants RiskIQ a non-exclusive, non-transferable, worldwide right to use Customer Data as necessary for the limited purpose of performing the Services.
4. FEES AND PAYMENT; TAXES; AUDIT.
4.1 Fees and Payment. Unless otherwise stated in an Order, Customer shall pay to RiskIQ in U.S. Dollars, and invoices are due net thirty (30) days after the invoice date. Except as expressly provided in this Agreement, all fees are non-cancelable and non-refundable. In addition to any other rights it may have, RiskIQ shall have the right to terminate this Agreement upon Customer’s failure to make any payment due hereunder by the due date, provided that RiskIQ gives Customer notice of non-payment and ten (10) days opportunity from the date of the notice to cure. Interest will accrue on past due amounts at the rate of 1.5% per month (or any lower legal maximum).
If Customer purchased Services through a Channel Partner, then such payment terms negotiated by Customer with such Channel Partner shall control (as to payments between Customer and such Channel Partner) and Sections 4.1 and 4.2 herein shall be of no force or effect.
4.2 Taxes. All fees stated exclude, and Customer is responsible for payment of, any sales, use, value added, excise, property withholding or similar tax and any related tariffs, and similar charges, except taxes based on RiskIQ’s net income. Customer will, and hereby agrees to, promptly reimburse RiskIQ for any and all taxes or duties that RiskIQ may be required to pay in connection with this Agreement upon receipt of RiskIQ’s invoice therefor.
4.3 Audit. Customer agrees that RiskIQ shall have the right at its expense, no more than one time in any twelve (12) month period, to audit Customer’s use of the Services to ensure compliance with this Agreement if conducted during normal business hours, given ten (10) days advance notice, and if reasonable in scope. If not in material compliance with the license granted herein, Customer agrees to promptly reimburse RiskIQ for any reasonable expenses associated with conducting the audit in addition to any overdue payments.
5. WARRANTIES; DISCLAIMERS AND EXCLUSIONS.
5.1 Mutual Warranties. Each Party represents and warrants that: (a) it has the legal authority to enter into this Agreement, to grant the rights granted by it under this Agreement and to perform its obligations under this Agreement; (b) it is duly organized and in good standing under the laws of the jurisdiction of its incorporation or formation; and (c) this Agreement is duly authorized by the executing Party.
5.2 Services Warranty. RiskIQ warrants to Customer that, during the Subscription Term: (a) it will provide the Services in a professional manner consistent with generally accepted industry standards reasonably applicable to the provision of the Services; (b) the SaaS Services, when used in accordance with their Documentation, will perform and provide functionality substantially in accordance with such Documentation; and (c) the functionality of the SaaS Services will not be materially decreased during the applicable Subscription Term. RiskIQ’s sole liability, and Customer’s sole and exclusive remedy, for any breach of the foregoing warranties will be, in RiskIQ’s sole discretion and at no charge to Customer: (i) to use commercially reasonable efforts to provide Customer with an error correction or work-around that corrects the reported non-conformity or, if RiskIQ determines such remedies to be impracticable, (ii) to allow Customer to terminate and receive as its sole remedy any prepaid fees for the remainder of any then current Subscription Term after the effective date of termination.
5.3 Disclaimer and Exclusions. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 5, THE SERVICES AND THE REPORTS ARE PROVIDED “AS IS” AND RISKIQ DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY; OF FITNESS FOR A PARTICULAR PURPOSE; OR ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS AND RISKIQ IS NOT RESPONSIBLE FOR ANY DELAYS, FAILURES OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS AND CUSTOMER IS RESPONSIBLE FOR OBTAINING AND MAINTAINING ANY EQUIPMENT AND/OR ANCILLARY SERVICES NEEDED TO ACCESS OR CONNECT TO THE SERVICES.
6.1 RiskIQ's Indemnity. RiskIQ shall defend, indemnify, and hold Customer harmless from and against any and all losses, damages and costs (including reasonable attorneys’ fees) incurred in connection with any third-party claim, action, suit, or proceeding (each a “Claim”) made or brought against Customer arising out of or related to any claim that the Services, when used in accordance with this Agreement and Documentation, infringes any valid patent, copyright, or trademark of a third-party. RiskIQ shall have no indemnification obligation whatsoever that arises out of or is related to any claims arising from the combination or use of the Services with any other software, products, hardware, materials, and/or processes not provided by RiskIQ and/or Customer’s failure to adhere to and comply with all Documentation and other specifications and instructions; and/or Customer’s modification of the Services, or any other unauthorized or unapproved use of the Services. If a Service becomes, or in RiskIQ’s opinion may become, subject to a Claim, RiskIQ shall at its option and at its own expense: (a) procure for Customer the right to continue using the Service; (b) replace or modify the Service with a functionally equivalent non-infringing Service; or (c) modify the Service so it becomes non-infringing while remaining functionally equivalent. If RiskIQ, in its sole discretion, determines that (a)-(c) are not commercially reasonable, RiskIQ may terminate the license for the infringing Service and refund a pro-rated portion of the fees paid by Customer under this Agreement for its use of the Service but which use has not yet been furnished by RiskIQ as of the date of such termination. If Customer is paying a Channel Partner, then such refund shall be sought from the Channel Partner. THIS SECTION 6.1 SETS FORTH RISKIQ’S SOLE LIABILITY, AND CUSTOMER’S EXCLUSIVE REMEDY, FOR INTELLECTUAL PROPERTY INFRINGEMENT.
6.2 Customer's Indemnity. Customer shall defend, indemnify, and hold RiskIQ and its Affiliates harmless from and against any and all losses, damages and costs (including reasonable attorneys’ fees) incurred in connection with any claim, action, suit, or proceeding made or brought against RiskIQ and/or its Affiliates arising out of or related to: (a) Customer’s use of the Services (including without limitation, any data transmitted to, by, or through the Services) or the results obtained therefrom that is beyond the scope of, or otherwise fails to conform to, this Agreement; or (b) RiskIQ’s compliance with any specifications or directions provided by or on behalf of Customer. Notwithstanding the foregoing, Customer may not settle any claim unless it unconditionally releases RiskIQ of all liability and does not include an admission of fault, liability, or wrongdoing by RiskIQ without RiskIQ’s prior written consent. RiskIQ shall have the right to participate in such defense with counsel of its own choosing at its expense.
6.3 Indemnification Procedures. The indemnified Party will: (a) promptly give written notice of the Claim to the indemnifying Party; (b) give the indemnifying Party sole control of the defense and settlement of the Claim; and (c) provide reasonable assistance to the indemnifying Party (at the indemnifying Party’s expense).
7. LIMITATIONS OF LIABILITY.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, TO THE EXTENT PERMITTED BY APPLICABLE LAW, FOR ANY CAUSE RELATED TO OR ARISING OUT OF THIS AGREEMENT, WHETHER IN AN ACTION BASED ON A CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR ANY OTHER LEGAL OR EQUITABLE THEORY, HOWEVER ARISING, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR (A) ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES; (B) DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS; OR (C) DAMAGES IN AN AMOUNT THAT EXCEEDS THE AMOUNTS PAID OR PAYABLE TO RISKIQ BY THE CUSTOMER (OR, IF APPLICABLE, THE CHANNEL PARTNER) UNDER THIS AGREEMENT FOR THE SERVICE THAT IS THE SUBJECT OF THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE FIRST EVENT WHICH GIVES RISE TO SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES WERE FORESEEABLE AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
FURTHER, NOTWITHSTANDING THE FOREGOING PARAGRAPH, THIS SECTION 7 DOES NOT APPLY TO: (I) CUSTOMER’S BREACH OF SECTIONS 2.2 (RESTRICTIONS) OR 10 (COMPLIANCE WITH LAWS AND EXPORT CONTROL) OR DELIBERATE EXPLOITATION A VULNERABILITY DISCOVERED IN THE SERVICES; (II) OBILGATIONS UNDER SECTIONS 6 (INDEMNITY) OR 9 (CONFIDENTIALITY); (III) LIABILITIES ARISING FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; OR (IV) CUSTOMER’S OBLIGATION TO PAY AMOUNTS OWED FOR THE SERVICES PROVIDED HEREUNDER.
8. TERM AND TERMINATION.
8.1 Term. The term of this Agreement shall commence upon the Effective Date and shall continue for as long as there is an Order in effect. If no Order is in effect, either Party may terminate this Agreement without cause upon thirty (30) days’ written notice to the other Party.
8.2 Termination for Breach. Either Party may terminate this Agreement or an Order in the event the other Party: (a) materially breaches the terms of this Agreement or an Order, if such breach or default continues uncured for 30 days after written notice (except in the event of non-payment, for which the cure period shall be 10 days in accordance with Section 4.1 or if such breach is non-curable); or (b) becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon any termination by Customer due to RiskIQ’s breach, RiskIQ shall refund to Customer any prepaid fees for the remainder of any then current Subscription Term after the effective date of termination. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to RiskIQ prior to the effective date of termination. If Customer is paying a Channel Partner, then such refund shall be sought from the Channel Partner.
8.3 Effect of Termination. Upon any expiration or termination of this Agreement, Customer will immediately cease any and all use of and access to the Services and the Documentation and delete (or, at RiskIQ’s request, return) any and all copies of the Documentation, any User IDs, passwords or access codes and any other Confidential Information of RiskIQ in its possession. Upon request by Customer made within 30 days of the effective date of termination, RiskIQ will make available to Customer a file of Reports for download. After such 30 day period, RiskIQ shall have no obligation to maintain or provide any Reports generated by, or delivered to, Customer.
8.4 Survival. Sections 2.2, 3, 4 (only as to amounts due and owing), 5.3, 6-9, 11 and 12 will survive the termination of this Agreement.
9.1 Confidential Information. Each Party (as a “Discloser”) may disclose to the other Party (as a “Recipient”) certain proprietary or confidential information during the term of this Agreement. A Party’s “Confidential Information” means any confidential or proprietary information of a Party that is disclosed to the other Party and that is designated in writing (by legend or otherwise) as confidential or if a reasonable person would understand such information to be confidential given the nature of the information or the circumstances of disclosure. RiskIQ Confidential Information also includes, without further designation: (a) RiskIQ Property; and (b) the terms of this Agreement including all pricing under this Agreement.
9.2 Confidential Treatment. At all times Recipient shall: (a) use the same standard of care to protect the Confidential Information as it uses to protect its own confidential information of a similar nature, but not less than a commercially reasonable standard of care; (b) not use Confidential Information other than as necessary to perform its obligations under this Agreement; (c) not disclose, distribute, or disseminate Confidential Information to any third-party without the Discloser’s consent; and (d) only disclose Confidential Information to its Affiliates, or to any of Recipient's or its Affiliates' employees, officers, directors, agents, attorneys, accountants or advisors (collectively, "Representatives") on a “need to know” basis, provided that each Representative is bound by obligations of confidentiality and restrictions against disclosure at least as restrictive as those contained herein. Upon the written request of Discloser, Recipient shall return or destroy (and certify such destruction in a signed writing) all Confidential Information of Discloser, including all copies thereof and materials incorporating such Confidential Information, whether in physical or electronic form. Each Party may retain a copy of the other Party’s Confidential Information solely for archival purposes. To the extent that it is impracticable to return or destroy any Confidential Information, and with respect to any copies retained for archival purposes, Recipient shall continue to maintain the Confidential Information in accordance with this Agreement. The confidentiality obligations set forth in this Agreement shall survive the termination of this Agreement and remain in full force and effect until such Confidential Information, through no act or omission of Recipient, ceases to be Confidential Information as defined hereunder.
9.3 Exceptions. The obligations of Recipient set forth in this Section 9 shall not apply to Confidential Information to the extent such information: (a) is already rightfully known by Recipient without restriction on disclosure prior to receipt from Discloser; (b) is or becomes publicly known through no act or fault of Recipient; (c) is rightfully received by Recipient from a third-party without a restriction on disclosure or use; (d) is developed completely independently from Discloser’s Confidential Information; or (e) disclosures of Confidential Information required by a valid order issued by a court or governmental agency of competent jurisdiction (a “Legal Order”), provided that, prior to making any such disclosure in connection with a Legal Order, the Recipient shall use commercially reasonable efforts to (i) provide Discloser with prompt written notice of such, if legally permissible, so that Discloser may seek, at its sole cost and expense, a protective order or other remedy, (ii) reasonable assistance, at Discloser’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure and (iii) only that portion of the Confidential Information which, on the advice of the Recipient’s legal counsel, is required to be disclosed by such Legal Order. Any Confidential Information disclosed pursuant to a Legal Order shall otherwise remain confidential and subject to the restrictions on the use or disclosure in this Agreement. Either Party may disclose this Agreement to legal and business advisors acting under a duty of confidentiality and to any potential merger or acquisition candidate so long as it secures confidential treatment of such information.
10. COMPLIANCE WITH LAWS AND EXPORT CONTROL.
Customer agrees to comply with U.S., foreign, and international laws and regulations, including without limitation the U.S. Foreign Corrupt Practices Act, U.K. Bribery Act, other anti-corruption laws, U.S. Export Administration and Treasury Department's Office of Foreign Assets Control regulations, and other anti-boycott and import regulations. Customer represents and warrants that it is neither a Prohibited Person nor owned or controlled by a Prohibited Person. “Prohibited Persons” shall mean a person or entity appearing on the lists published by the U.S. Department of Commerce, the U.S. Department of State, the U.S. Department of Treasury or any other list that may be published by the U.S. Government, as amended from time to time, that is prohibited from acquiring ownership or control of items under this Agreement, or with which RiskIQ is prohibited from doing business.
11.1 Governing Law. This Agreement (and any claim, suit, action or proceeding arising hereunder, whether in contract, tort or otherwise (“Legal Claim”) shall be governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule. Any Legal Claim shall be instituted exclusively in the federal courts of the United States located in San Francisco County or the courts of the State of California for the City and County of San Francisco or the United States District Court for the Northern District of California, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such Legal Claim and waives any objection based on improper venue or forum non conveniens. The prevailing Party in any action to enforce this Agreement will be entitled to recover its reasonable attorneys’ and experts’ fees and costs in connection with such action. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
11.2 Relationship of the Parties. The Parties acknowledge that: (a) they are acting as independent contractors; (b) each Party is solely responsible for its actions or inactions; (c) the parties shall not be deemed to be agents of each other; and (d) no joint venture, franchise, partnership, agency, or other relationship shall be created or implied by this Agreement. There are no third-party beneficiaries to this Agreement.
11.3 Entire Agreement; Interpretation. This Agreement (together with all exhibits, Orders and any other documents that either incorporate this Agreement by reference or are incorporated herein by reference) constitutes the sole and entire agreement between the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. In the event of any conflict between the provisions of this Agreement and any Order, the terms of such Order shall prevail to the extent of any inconsistency with respect to the matter(s) set forth in such Order. This Agreement will not be construed in favor of or against any Party by reason of the extent to which any Party participated in the preparation of the Agreement. Headings and captions are for convenience only and are not to be used in the interpretation of the Agreement. The parties agree that any term or condition stated in Customer’s purchase order or in any other instrument issued by Customer is void to the extent such term or condition conflicts, is inconsistent or causes ambiguity with any term or condition herein.
11.4 Modification; No Waiver. This Agreement may only be amended, modified or supplemented by an agreement in writing clearly understood by both parties to be an amendment and signed by each Party hereto. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. No failure or delay by either Party in exercising any right under this Agreement will constitute a waiver of that right.
11.5 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect. If any invalid, unenforceable or illegal provision of this Agreement would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
11.6 Assignment. Neither Party shall assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the other Party’s prior written consent, which shall not be unreasonably withheld or delayed. Notwithstanding the foregoing: (a) RiskIQ may subcontract or delegate its obligations hereunder to an Affiliate; and (b) either Party may assign this Agreement in its entirety, without the consent of the other Party, to its successor in interest in connection with a merger (by operation of law or otherwise), reorganization or sale of all or substantially all assets or equity; provided that the assignee: (i) is not a direct competitor of the non-assigning Party; (ii) is capable of fully performing the obligations of the assignor under this Agreement; and (iii) agrees to be bound by the terms of this Agreement. No delegation or other transfer will relieve a Party of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this provision is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
11.7 Force Majeure. Except for a Party’s payment obligations, neither Party shall be in default hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to, without limitation, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, loss and destruction of property or any other circumstances or causes beyond a Party’s reasonable control.
11.8 Notices. Notices to be given or submitted by either Party to the other Party pursuant to this Agreement shall be in writing and directed to the address below (or as otherwise provided to the other Party in writing) and shall be deemed to have been given: (a) when delivered by hand (with written confirmation of receipt); or (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested) or by certified or registered mail, return receipt requested, postage prepaid.
|For RiskIQ:||For Customer:|
|22 Battery Street||To the address as set forth in the Order.|
|San Francisco CA, 94111 USA|
|Attn: General Counsel|
11.9 Remedies. Notwithstanding any other remedy available to the Parties under this Agreement, Customer’s breach of Sections 2.2 or either Party’s breach of Section 9 may result in irreparable harm to the other Party, and therefore, upon any such breach or any threat thereof, the other Party is entitled to seek temporary, preliminary and permanent injunctive relief without the requirement of posting a bond or proving actual damages, in addition to whatever remedies such Party might have at law. If either (a) Customer’s account is thirty (30) days or more overdue; or (b) Customer is in material breach of its obligations as set forth in Sections 2.2-2.4 or 10 hereof, in addition to any of its other rights or remedies, RiskIQ reserves the right to suspend the Services provided to Customer, without liability to Customer, until such amounts are paid in full, including any late payment fee, or until such material breach is cured to RiskIQ’s reasonable satisfaction. Customer will continue to be charged during any period of suspension described herein.
11.10 Publicity. Neither Party shall issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or otherwise use the other Party's trademarks, service marks, trade names, or logos, in each case, without the prior written consent of the other Party, provided, however, that RiskIQ may include Customer's name and/or other indicia in its lists of RiskIQ’s customers in its website and/or other marketing materials.
11.11 Government Users. All RiskIQ Property constitute “Commercial Computer Software” and “Commercial Computer Software Documentation.” Therefore, in accordance with Section 12.212 of the Federal Acquisition Regulation (FAR) and Sections 227.7202-1 through 227.7202-4 of the Defense Federal Acquisition Regulation Supplement (DFARS), any use, duplication or disclosure of any RiskIQ Property by the U.S. Government or any of its agencies will be governed by, and is subject to, all of the terms, conditions, restrictions, and limitations set forth in this Agreement. Use of any or all RiskIQ Property constitutes agreement by the Government that any RiskIQ Property are "commercial computer software" and "commercial computer software documentation," and constitutes acceptance of the rights and restrictions set forth in the Agreement. If for any reason any RiskIQ Property are not considered commercial or the terms of this Agreement are otherwise deemed not applicable, such RiskIQ Property shall be deemed to have been provided with “Restricted Rights” as defined in FAR 52.227-14(a) and FAR 52.227-14(g)(4) (Alt III), or DFARS 252.227-7014(a)(15) and DFARS 252.227-7014(b)(3), as applicable.
12. CERTAIN DEFINITIONS.
12.1 “Affiliate” means as to any Person, means any other Person that, directly or indirectly through one or more intermediaries, is in control of, is controlled by, or is under common control with, such Person. For purposes of this definition: (a) "control" of a Person means the power, directly or indirectly, either to (i) vote 50% or more of the securities having ordinary voting power for the election of directors (or persons performing similar functions) of such Person or (ii) direct or cause the direction of the management and policies of such Person, whether by contract or otherwise; and (b) “Person” means any individual, corporation, limited liability company, trust, joint venture, association, company, limited or general partnership, unincorporated organization, governmental authority or other entity, provided however, “Affiliate” shall not include any Person (defined below) engaged, directly or indirectly (including through any partnership, limited liability company, corporation, joint venture or similar arrangement (whether now existing or formed hereafter) in cybersecurity.
12.2 "Aggregate Data” means any de-identified data compiled or produced in the Services that cannot be used to identify, or be specifically attributable to, Customer or any individual, which may be used by RiskIQ for improving its products and services.
12.3 “Authorized Users” means the number of Customer’s employees, representatives, agents, consultants or contractors designated on an Order Form who are authorized to use the Service(s) and have been supplied with user identifications and passwords by, or on behalf of, Customer.
12.4 “Customer Data” means: (a) Customer’s user login information for accessing the Services, including name, email, username, and passwords, (b) any event or inventory configurations provided by Customer and (c) the Reports.
12.5 “Documentation” means the user manuals, help guides and/or other technical documentation provided by RiskIQ with the Services as updated from time to time and as made generally available to RiskIQ’s customers.
12.6 "Feedback" means, collectively, any and all suggestions, enhancements, recommendations or other feedback provided by Customer relating to the Services or other RiskIQ Property (including, without limitation, with respect to modifications or other changes to the Services or other RiskIQ Property).
12.7 "Intellectual Property" means any intellectual property or other proprietary rights, including but not limited to sales methodologies and processes, training protocols and similar methods and processes, algorithms, APIs, databases, data collections, inventions (whether or not patentable), know-how, logos, marks (including brand names, product names and slogans), network configurations and architectures, proprietary information, software, software code in any form, including source code and executable or object code), subroutines, techniques, user interfaces, URLs, web sites, works of authorship and other forms of technology.
12.8 "Intellectual Property Rights" means all rights of the following types, which may exist or be created under the laws of any jurisdiction in the world: (a) rights associated with works of authorship, including exclusive exploitation rights, copy rights and moral rights; (b) trademark, service mark and trade name rights and similar rights; (c) trade secret rights; (d) patent and industrial property rights; (e) other proprietary rights in Intellectual Property; and (f) rights in or relating to registrations, renewals, extensions, reversions, combinations, continuations, continuations-in-part, divisions, reexaminations and reissues of, and applications for, any of the rights referred to in clauses “(a)” through “(e)” above.
12.9 "Orders" means, collectively, any and all Order Forms and/or statements of works.
12.10 "Order Form" means: (a) any order form that references this Agreement executed by RiskIQ and Customer; or (b) a purchase order issued by Customer that is accepted by RiskIQ, in each case, by which the Customer purchases SaaS Services, MSS or Professional Services from RiskIQ. No Order Form shall be binding on RiskIQ unless accepted in writing by RiskIQ.
12.11 “Reports” means all reports exported by Customer and/or Authorized Users from the authorized use of the Services but shall not include any underlying information, data or any Aggregate Data included in any report, including but not limited to projects within RiskIQ’s PassiveTotal application.
12.12 "RiskIQ Property" means: (a) the Services, the Documentation, Aggregate Data and all other Intellectual Property contained, embodied or incorporated in, or provided by RiskIQ in connection with, the Services; and (b) all Intellectual Property that may be developed, conceived or invented by RiskIQ during its performance under this Agreement, including any and all Feedback.
RiskIQ MSA [v5.0] (Last Updated: 31 January 2020)
Confidential & Proprietary. © RiskIQ, Inc. All rights reserved