Subscription Agreement

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This subscription agreement (this “Agreement”) sets forth the legally binding terms for use of the SaaS, whether such SaaS is purchased directly from SecZetta or indirectly through a SecZetta Authorized Partner (as defined herein).  This Agreement is by and between SecZetta, Inc., having its principal place of business at 1082 Davol Street, Suite 102, Fall River, MA 02720 (“SecZetta”) and the company or entity on whose behalf you are accepting this Agreement (“Customer”).  You represent that you have the authority to bind Customer to the terms of this Agreement. By agreeing to the terms of this Agreement, by activating, accessing, or using any part of the SaaS, or by executing an Order Form that references this Agreement, Customer expressly agrees to and consents to be bound by all of the terms of this Agreement.  If Customer does not agree to any of the terms of this Agreement, Customer is prohibited from activating, accessing, or using the SaaS or executing an Order Form that references this Agreement.  The effective date of this Agreement is the subscription start date set forth on an Order Form or, if earlier, the date on which Customer activates, accesses, or uses the SaaS (the “Effective Date”).   Collectively, SecZetta and Customer may be referred to as the “parties” or in the singular as a “party.”

For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

1.Definitions.

“Affiliate” means, with respect to SecZetta or Customer, any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Confidential Information” means all confidential and proprietary information of a party (the “Disclosing Party”) disclosed or made available to the other party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information or the circumstances of disclosure. Confidential Information may include, but is not limited to, this Agreement and all Order Forms (including pricing), each party’s technical and business information, security information, finances, product road maps, and third-party audit reports and attestations.

“Customer Data” means all electronic data submitted by or on behalf of Customer to the SaaS.

“Documentation” means the written documentation, user guides, or specifications provided by SecZetta to Customer or as may be made generally available for the SaaS from time to time.

“Malicious Code” means viruses, worms, time bombs, Trojan horses and other malicious code, files, scripts, agents or programs.

“Managed Identities” means individuals (including non-human devices, such as applications or services) that are actively utilized or managed by the SaaS, including those individuals that are designated by Customer as “Active” within the SaaS’s profile data store. The number of licensed Managed Identities are set forth in the applicable Order Form.

“Non-SecZetta Application” means a web-based, offline, mobile, or other software application functionality that is provided by Customer or a third party and interoperates with the SaaS. Non-SecZetta Applications are explicitly excluded from the definition of “SaaS”.

“Order Form” means an ordering document for Customer’s purchases from SecZetta that is executed by both parties.

“Professional Services” means any professional services in relation to onboarding or otherwise that SecZetta may provide to Customer, as further described in a statement of work and/or Order Form. Professional Services are explicitly excluded from the definition of “SaaS”.

“SaaS” means the generally available software-as-a-service product offerings provided by SecZetta to Customer as set forth in an Order Form, that are hosted by SecZetta or its third-party hosting providers.

“Support Services” means the support services provided by SecZetta for the SaaS.

“User” means individuals who are authorized by Customer to use the SaaS.

2.      Provision and Use of the SaaS.

2.1.  Subscription Right of Access and Use.  Subject to the terms and conditions of this Agreement and each applicable Order Form, SecZetta grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable right, during the applicable subscription term, to access and use the SaaS in accordance with the Documentation, solely for Customer’s internal business purposes. Customer agrees that its purchase of the SaaS is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written statements made with respect to future functionality or features.

2.2.  Support Services.  During any applicable subscription term, SecZetta will provide Support Services to Customer in accordance with SecZetta’s then-current support policy.

2.3.  Use Guidelines and Restrictions.  Customer is responsible for all activities conducted under its and its Users’ logins to the SaaS. Customer shall use the SaaS in compliance with this Agreement, any applicable Order Form(s), the Documentation and all applicable laws and shall not: (i) copy, rent, sell, lease, distribute, pledge, assign, or otherwise transfer, or encumber rights to the SaaS, or any part thereof, or make it available to anyone other than its Users or otherwise commercially exploit the SaaS; (ii) send or store in the SaaS any personal health data, credit card data, personal financial data or other such sensitive data which may be, without limitation, subject to the Health Insurance Portability and Accountability Act, Gramm-Leach-Bliley Act, or the Payment Card Industry Data Security Standards; (iii) send or store malicious code or infringing or unlawful material in connection with the SaaS; (iv) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the SaaS or the data contained therein; (v) modify, copy or create derivative works based on the SaaS, or any portion thereof; (vi) access the SaaS for the purpose of building a competitive product or service or copying its features or user interface.

2.4.  Users.  Customer will at all times be responsible for all actions taken under a User’s account and for any breach of this Agreement by its Users. Customer will promptly notify SecZetta of any suspected or alleged unauthorized access to or use of the SaaS. Any use of the SaaS in breach of this Agreement by Customer or its Users that in SecZetta’s reasonable judgment threatens the security, integrity or availability of the SaaS may result in immediate suspension of Customer’s access to the SaaS; provided that SecZetta will use best efforts to provide Customer with notice and an opportunity to remedy the violation or threat.

2.5.   Managed Identities.  Customer may only grant access to the SaaS to those who have been assigned unique access credentials and may only use the SaaS up to the number of Managed Identities subscribed to pursuant to an Order Form. In the event that Customer’s number of Managed Identities exceeds the limitations set forth on an Order Form, Customer shall be responsible for applicable overage fees. SecZetta reserves the right to conduct an annual audit and review of the number of Managed Identities and Customer agrees to cooperate and provide SecZetta with access to all systems to conduct such audit and review.

2.6.  Order Forms; Partner Orders.  Customer may place orders under this Agreement by executing Order Forms. Order Forms may specify further details for Users and licensing metrics for the SaaS. Pursuant to a separate agreement between Customer and an authorized reseller or partner of SecZetta (“Authorized Partner”), Customer may purchase from the Authorized Partner certain products or services to be delivered by SecZetta. In the event that Customer is purchasing through an Authorized Partner under an agreement between the Authorized Partner and Customer (the “Partner Agreement”), this Agreement will apply with regards to the terms and conditions under which such products or services will be provided to and used by Customer, with the exception of terms for price, payment and other order specific terms set forth in the Partner Agreement. Notwithstanding anything to the contrary, the Partner Agreement is between Customer and the Authorized Partner and is not binding on SecZetta and in the event of a conflict between this Agreement and a Partner Agreement, this Agreement shall govern as between SecZetta and Customer.

2.7.  Professional Services.  Customer and SecZetta may enter into statements of work and/or Order Forms that describe specific Professional Services to be performed by SecZetta. SecZetta warrants that it will provide all Professional Services in a good, professional and workmanlike manner consistent with applicable industry standards. Where applicable, while onsite at a Customer premises for Professional Services, SecZetta personnel will comply with reasonable Customer rules and regulations regarding any onsite visits that are made known to SecZetta.

3.       Fees and Payment.

3.1.   Fees.  Customer will pay all fees set forth on all Order Form(s) hereunder. Except as otherwise specified herein, payment obligations are non-cancelable, and fees paid are non-refundable. Stated fees are based on the scope of the Product subscriptions purchased as set forth on an Order Form and not actual usage. Payment obligations are non-cancelable, and except as otherwise stated herein fees paid are non-refundable. In the event that Customer exceeds any licensing metrics (such as Managed Identities) set forth on an Order Form, overage charges shall apply based on SecZetta’s then-current rates and Customer shall remit such charges to SecZetta.

3.2.   Invoicing; Payment.  Unless otherwise specified on an Order Form, all fees are invoiced in U.S. dollars and are invoiced annually in advance at the start of the subscription term and on each anniversary date thereafter. All invoices issued by SecZetta will be due and payable within thirty (30) days of the date of the invoice. Fees set forth on Order Forms exclude all applicable sales, use, and other taxes. Any fees that are not paid when due are subject to interest at 1.5% per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid.  In the event of any dispute of an invoice, Customer shall notify SecZetta in writing within thirty (30) days of receipt of the invoice of the disputed amount and the reason for the dispute, and the parties agree to first attempt to negotiate promptly and in good faith a reasonable settlement of the disputed amount. SecZetta reserves the right to suspend the SaaS in the event that Customer is delinquent on any undisputed (in good faith) late payment obligations for more than thirty (30) days following written notice of such late payment.

3.3  Taxes.  Customer will be responsible for, and will promptly pay, all taxes and duties of any kind (including but not limited to sales, use and withholding taxes), if any, associated with this Agreement or Customer’s receipt or use of the SaaS, except for taxes based on SecZetta’s net income, employees or property.  If SecZetta is required to collect or pay any tax for which Customer is responsible, SecZetta will invoice Customer and Customer will pay such taxes and duties directly to SecZetta unless Customer provides SecZetta with a valid tax exemption certificate authorized by the appropriate taxing authority.

4.      Intellectual Property.

4.1.  Customer Data.  As between SecZetta and Customer, Customer owns all Customer Data. Customer grants to SecZetta, its Affiliates and applicable contractors and/or service providers a limited-term license to host, copy, transmit and display Customer Data, as reasonably necessary for SecZetta to provide the SaaS. Customer shall at all times remain responsible for the accuracy, quality and legality of Customer Data and the means by which Customer acquired Customer Data.

4.2.  Ownership.  Except for the limited rights expressly granted under this Agreement, SecZetta and its licensors retain all right, title, and interest in and to the SaaS, Documentation, and Professional Services (and any enhancements, modifications or derivative works thereof for each of the SaaS, Documentation, and Professional Services), including all related intellectual property rights inherent therein. No rights are granted to Customer hereunder other than as expressly set forth herein.

4.3. Feedback.  SecZetta shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the SaaS any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its Users relating to the operation of the SaaS. Customer shall have no obligation to provide feedback or suggestions, and SecZetta shall have no obligation to use feedback or suggestions.

4.4.   Usage Data.  SecZetta owns the statistical usage data derived from the operation of the SaaS (“Usage Data”). Nothing herein shall be construed as prohibiting SecZetta from utilizing the Usage Data, provided that any such Usage Data shall be aggregated and de-identified so that it will not disclose the identity of Customer or any User(s) to any third party.

5.      Confidentiality.

5.1.  Protection of Confidential Information.  The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission.  The Receiving Party may disclose Confidential Information to its Affiliates and service providers on a need-to-know basis, and such Affiliates and service providers may use such Confidential Information, in each case only for the purposes of fulfilling Receiving Party’s obligations under this Agreement.  The Receiving Party shall be liable to the Disclosing Party for all actions and omissions of its Affiliates and service providers with respect to such information as if such actions and omissions were those of the Receiving Party hereunder. The Receiving Party agrees to protect the confidentiality of the Confidential Information of the Disclosing Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care), and promptly notify the Disclosing Party upon discovery of any unauthorized access or acquisition of Confidential Information and reasonably cooperate with the Disclosing Party’s efforts to prevent, investigate and remediate the breach of confidentiality.

5.2.  Limitations.  Receiving Party will not have any obligations under this Agreement with respect to any portion of the Confidential Information that: (a) is now or later becomes generally known (other than as a result of a breach of this Agreement); (b) is independently developed by or for Receiving Party as evidenced by written records; (c) Receiving Party lawfully obtains from any third party who has lawfully obtained such information; or (d) was in Receiving Party’s possession free of any obligation of confidence at the time of the Disclosing Party’s communication thereof to Receiving Party as evidenced by written records.  If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.

5.3.  Retention of Confidential Information.  Upon a party’s written request, the other party will erase, delete or destroy all copies of Confidential Information of the other party whether or not modified or merged into other materials, and certify in writing to the other party that such party has fully complied with these requirements.  A party may retain archived copies of Confidential Information as required by applicable law or its data retention policies, provided that all such copies remain subject to the restrictions herein for so long as they are retained.

5.4.  Remedies.  If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief, it being specifically acknowledged by the Parties that any other available remedies are inadequate.

6. Data Security and Data Privacy.

6.1.  Data Security and Data Privacy. SecZetta agrees to maintain commercially reasonable data security policies, procedures and controls that include appropriate administrative, technical, and physical safeguards. Each party agrees to comply with the requirements of all applicable state, national and international laws and regulations and all applicable industry standards regarding the security, protection and confidentiality of personally identifiable information with respect to the use of or provision of the SaaS. SecZetta reserves the right to suspend the SaaS provided to Customer if SecZetta reasonably determines that Customer’s use of the SaaS poses any security or vulnerability risk or is a reasonable threat to the technical security or technical integrity of the SaaS, provided that SecZetta will promptly recommence performance upon cessation of the threat. Notwithstanding any provision to the contrary in the Agreement, Customer acknowledges and agrees that use of the SaaS to transmit, process or store highly sensitive personal data such as social security numbers, passport or government assigned identification numbers, financial account numbers, payment card or other cardholder data, health or medical information, or any information that reveals racial or ethnic origin, political opinions, religious beliefs, or genetic or biometric data, is unnecessary for use of the SaaS and therefore Customer shall be solely responsible for the transmission and processing of any such data, all of which is solely at Customer’s own risk.

7. Warranties.

7.1  General. Each party represents and warrants that it has the legal power and authority to enter into this Agreement.

7.2.   Performance Warranty. SecZetta warrants that the SaaS will perform materially in accordance with the applicable Documentation. The foregoing only applies if the applicable SaaS has been utilized by Customer in accordance with the Documentation, this Agreement and any applicable Order Form(s). SecZetta will, at its own expense and as its sole obligation and Customer’s exclusive remedy for any breach of this warranty, use commercially reasonable efforts to correct the non-performing SaaS, and in the event that SecZetta is unable to correct the SaaS, Customer shall be entitled to terminate the non-conforming SaaS and receive a refund of any prepaid, unused fees for such non-conforming SaaS.

7.3.  Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS SECTION 7, SECZETTA MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, WHETHER, EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE PRODUCTS AND SECZETTA EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.  SECZETTA DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT THE OPERATION AND RESULTS OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SERVICE WILL BE CORRECTED.  NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SECZETTA OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY HEREIN. SECZETTA MAKES NO WARRANTY REGARDING ANY NON-SECZETTA APPLICATION WITH WHICH THE SERVICE MAY INTEROPERATE.

 

8. Indemnification.

8.1  Indemnification by SecZetta. Subject to the terms of this Agreement, SecZetta will defend Customer from any and all claims, demands, suits or proceedings brought against Customer by a third party alleging that the SaaS, as provided by SecZetta to Customer under this Agreement, infringes any patent, copyright, or trademark or misappropriates any trade secret of any third party under United States law (each, an “Infringement Claim”). SecZetta will indemnify Customer for all damages, costs, reasonable attorneys’ fees finally awarded by a court of competent jurisdiction, or paid to a third party in accordance with a settlement agreement signed by SecZetta, in connection with an Infringement Claim. In the event of an Infringement Claim, SecZetta may, at its option: (i) obtain the right to permit Customer to continue using the SaaS, (ii) modify or replace the relevant portion(s) of the SaaS with a non-infringing alternative having substantially equivalent performance, or (iii) terminate this Agreement as to the infringing SaaS and provide a refund of any prepaid, unused fees for the infringing SaaS. Notwithstanding the foregoing, SecZetta will have no liability for any Infringement Claim of any kind to the extent that it results from: (a) modifications to the SaaS made by a party other than SecZetta, (b) the combination of the SaaS with other products, processes or technologies (where the infringement would have been avoided but for such combination), or (c) Customer’s use of the SaaS other than in accordance with the Documentation, this Agreement and any applicable Order Form (where the infringement would have been avoided but for such improper usage). This Section 8.1 states SecZetta’s entire liability and the Customer’s exclusive remedy for any claims of infringement.

8.2. Indemnification by Customer. Subject to the terms of this Agreement, Customer will defend SecZetta from any and all claims brought against SecZetta by a third party alleging a violation of a third party’s rights arising from Customer’s provision or use of the Customer Data. Customer will indemnify SecZetta for all damages, costs, reasonable attorneys’ fees finally awarded by a court of competent jurisdiction or paid to a third party in accordance with a settlement agreement signed by Customer, in connection with such claims.

8.3.  Procedure. The party seeking indemnity under this Section 8 is required to comply with the following in order to be entitled to the defense and indemnification obligations of the other party: the indemnified party must (i) promptly notify the indemnifying party in writing of the claim or allegation, setting forth in reasonable detail the facts and circumstances surrounding the claim; (ii) give the indemnifying party sole control of the defense thereof and any related settlement negotiations, including not making any admission of liability or take any other action that limits the ability of the indemnifying party to defend the claim; and (iii) cooperate and, at the indemnifying party’s request and expense, assisting in such defense.

 

9. Limitation of Liability.

9.1.  Limitation of Liability. NEITHER PARTY’S CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL EXCEED THE TOTAL AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER THIS AGREEMENT.

9.2.  Disclaimer of Consequential Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR (i) ERROR OR INTERRUPTION OF USE, LOSS OR INACCURACY OR CORRUPTION OF DATA, (ii) COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, RIGHTS, OR TECHNOLOGY (iii) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR (iv) LOSS OF REVENUES AND LOSS OF PROFITS, HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9.3.  Limitations. The limitations set forth in Section 9.1 shall not apply to: (i) the obligations set forth in Section 8 (Indemnification), (ii) violation or misappropriation of a party’s intellectual property rights, (iii) damages arising from a breach by Customer of Section 2.3 (Use Guidelines and Restrictions), and (iv) damages arising from either party’s gross negligence or willful misconduct.

 

10. Term and Termination.

10.1.  Term. This Agreement commences on the Effective Date and continues for as long as the subscription term set forth in any related Order Form (and any subsequent Order Forms), unless earlier terminated as set forth herein. Subscription term(s) are as set forth on each applicable Order Form and will automatically renew for successive one-year periods at then-current prices, or as otherwise set forth on the Order Form, unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the end of the then-current subscription term.

10.2  Termination for Cause. Either party may terminate this Agreement for cause: (i) upon thirty (30) days written notice of a material breach of this Agreement by the other party if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

10.3.  Effects of Termination. Upon termination of this Agreement for any reason, all rights and subscriptions granted to Customer (including all Order Forms) will immediately terminate and Customer must promptly discontinue use of the SaaS.  Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to SecZetta prior to the effective date of termination.  Upon any termination for cause by Customer, SecZetta shall refund Customer any unused, prepaid fees covering the remainder of the subscription term after the date of termination.  If this Agreement is terminated by SecZetta for cause, Customer shall remain responsible for any payments set forth on any outstanding Order Forms, regardless of whether such amounts have been invoiced or are payable at the time of such termination.

10.4.  Survival. Any provisions that are by their nature intended to survive termination of this Agreement will continue to survive following termination.

 

11. General.

11.1  Insurance. Throughout the term of this Agreement, SecZetta shall, at its own cost, maintain commercially reasonable insurance coverage. SecZetta will provide evidence of such insurance to Customer upon reasonable written reques

11.2.  Governing Law; Attorneys’ Fees. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the Commonwealth of Massachusetts, without giving effect to any conflicts of laws principles that require the application of the law of a different state.  Each party hereby consents to the exclusive and personal jurisdiction and venue in the state and federal courts serving the Commonwealth of Massachusetts. The Parties expressly disclaim the applicability of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. The parties irrevocably waive any right to a trial by jury. The English language version of this Agreement shall govern in lieu of any translation. In any action to enforce this Agreement the prevailing party will be entitled to costs and attorneys’ fees.

11.3.  Relationship of the Parties. The parties shall be independent contractors under this Agreement, and nothing herein shall constitute either party as the employer, employee, agent, or representative of the other party, or both parties as joint venturers or partners for any purpose. There are no third-party beneficiaries under this Agreement.

11.4.  Notices. All notices under this Agreement shall be in writing and may be sent by electronic mail.  Notices shall be deemed to have been given upon the second business day after sending by email.  Notices to SecZetta shall be sent to legal@seczetta.com.  Notices to Customer, unless otherwise indicated by Customer, may be sent to the individual that executed this Agreement on behalf of Customer and/or an administrator by email, or at the address listed in the signature block of this Agreement.

11.5.  Assignment. Neither the rights nor the obligations arising under this Agreement are assignable or transferable by Customer or SecZetta without the other party’s prior written consent which shall not be unreasonably withheld or delayed, and any such attempted assignment or transfer shall be void and without effect. Notwithstanding the foregoing, either party may freely assign this Agreement in its entirety (including all Order Forms), upon notice and without the consent of the other party, to its successor in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, provided that all fees owed and due have been paid and the assignee agrees to be bound by all the terms of this Agreement.

11.6.  Publicity. Either party may include the other’s name and logo in customer or vendor lists on such party’s website and marketing collateral.

11.7.  Force Majeure. Neither party will be liable for any failure in performance due to circumstances beyond such party’s reasonable control, including without limitation, acts of God; acts of government; flood; fire; earthquakes; civil unrest; acts of terror, strikes or other labor problems (other than those involving such party’s employees), computer, telecommunications, internet service provider or hosting facility failures or delays involving hardware, software or power systems not within such party’s possession or reasonable control, and denial of service attacks. For the avoidance of doubt, a force majeure event shall not include (a) financial distress, (b) changes in the market prices or conditions, or (c) a party’s financial inability to perform its obligations hereunder.

11.8.  Export; Anti-Bribery. Each party represents that it is not named on any U.S. government list of persons or entities with which U.S. persons are prohibited from transacting, nor owned or controlled by or acting on behalf of any such persons or entities, and Customer will not access or use the SaaS in any manner that would cause any party to violate any U.S. or international embargo, export control law, or prohibition. Both parties agree to fully comply with the provisions of the United States Foreign Corrupt Practices Act (“FCPA”) and/or the Organization for Economic Cooperation and Development (“OECD”) prohibiting foreign bribery and improper payments.  SecZetta agrees not to provide, and Customer agrees that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any SecZetta employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If either party learns of any violation of the foregoing, such party will use reasonable efforts to promptly notify the other party.

11.9.  Government End User. If Customer is a U.S. government entity or if this Agreement otherwise becomes subject to the Federal Acquisition Regulations (FAR), Customer acknowledges that elements of the SaaS constitute software and documentation and are provided as “Commercial Items” as defined in 48 C.F.R. 2.101 and are being licensed to U.S. government Customer as commercial computer software subject to restricted rights described in 48 C.F.R. 2.101, 12.211 and 12.212. If acquired by or on behalf of any agency within the Department of Defense (“DOD”), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of the Agreement as specified in 48 C.F.R. 227.7202-3 of the DOD FAR Supplement (“DFARS”) and its successors. This U.S. Government End User Section 11.9 is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses government rights in computer software or technical data.

11.10.  Headings; Severability; Waiver. Headings used in this Agreement are provided for convenience only and will not in any way affect the meaning or interpretation of each section. If any provision of this Agreement is held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Any failure to enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision.

11.11.  Entire Agreement. This Agreement, including all referenced hyperlinks, attached schedules and exhibits, together with the Order Form(s) constitutes the final agreement between the parties, and is the complete and exclusive expression of the parties’ agreement pertaining to the subject matter hereof. Any and all prior or contemporaneous written or oral agreements existing between the parties hereto, including any non-disclosure agreement(s), and related to the subject matter hereof are expressly superseded by this Agreement. The parties agree that any term or condition stated in Customer’s purchase order or in any other Customer order documentation is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form between SecZetta and Customer and (2) this Agreement. No modification, amendment or waiver of any provision of this Agreement will be effective unless in writing and signed by both parties.

 

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