- 1. Definitions
- 2. Interpretation
- 3. Installation
- 4. License
- 5. Obligations
- 6. Performance Information and confidentiality
- 7. Fees
- 8. Restrictions
- 9. Term and Termination
- 10. Software quality, support and maintenance Service
- 11. Intellectual Property
- 12. Disclaimer of Warranty
- 13. LIMITATION OF LIABILITY
- 14. Indemnity
- 15. Governing Law and Venue
- 16. Assignment
- 17. Subcontracting
- 18. Complete Terms and Severability
- 19. No waiver
- 20. Changes to the Agreement
CyArx Subscription License
THIS LICENSE AGREEMENT (THE “AGREEMENT”) GOVERNS THE USE OF CYARX PROPRIETARY SECURITY SOFTWARE (THE “SOFTWARE”).
THIS AGREEMENT CONSTITUTES A BINDING CONTRACT BETWEEN CYARX, INC. AND/OR CYARX TECH LTD., AS APPLICABLE (“WE”, “US”, “OUR” OR “CYARX”), AND YOU – A LEGAL ENTITY (A COMPANY, A PARTNERSHIP, OR ANY OTHER LEGAL ENTITY, HEREINAFTER: “ORGANIZATION”), IDENTIFIED IN THE PROPOSAL (AS DEFINED BELOW).
- 1.1“Feedback” means information or content concerning enhancements, changes or additions to the Software requested, desired or suggested by the Organization.
- 1.2“Fees” means the license fees and other applicable fees set forth in the Proposal.
- 1.3“Intellectual Property Rights” means all rights, titles and interests evidenced by or embodied in (i) all inventions (regardless of patentability), all patents and patent applications; (ii) all trademarks, trade dress, trade names and service names, whether registered or not; (iii) all copyrightable works, author’s moral rights, performance rights and database rights; (iv) all trade secrets; (v) all mask works and integrated circuit designs; (vi) all utility designs and industrial designs; and (vii) all other intangible proprietary right and other similar proprietary, in whatever form or medium, in any jurisdiction worldwide.
- 1.4“Marks” means trademarks, trade names, and logos, whether registered or not.
- 1.5“Output Data” means the reports, alerts, notices and other types of information and data that the Software may generate.
- 1.6“Performance Information” means the Output Data and any information about the Organization’s use of the Software, including the Software’s performance, compatibility, interoperability, bugs, errors and malfunctions, the architecture and layout of the Related Systems and the Software’s functions and processes as carried out with respect to the Related Systems.
- 1.7“Proposal” means the proposal or price quote issued by Reseller or CyArx (as applicable), specifying, among others, the Organization’s details and the Fees applicable to this Agreement. Such Proposal is incorporated by reference to this Agreement, and constitutes an integral part of it.
- 1.8“Related Systems” means the Organization’s IT systems that are directly or indirectly connected with or monitored by the Software.
- 1.9“Reseller” means the individual or legal entity duly authorized by CyArx to market, promote and distribute the Software to you.
- 1.10“Service” means the maintenance and support services set forth in subsections 10.3-10.4.
- 1.11“Term” means the duration of this Agreement, as specified in subsection 9.1.
- 1.12“User” means any Organization employee or such other individual using or accessing the Software for or on behalf of the Organization.
- The term “including”, means including, but not limited to, and without limitation, to the generality of the preceding phrase. All examples in the Agreement and all “i.e.” and “such as” notations, indicate an illustration, by way of example only, of the preceding phrase, without limiting its generality.
- Subject to the Organization’s compliance with all of its obligations under the Agreement, CyArx will endeavor to perform the initial integration, deployment, installation and configuration of the Software, at the Organization’s site or premises, according to the Organization’s particular IT architecture and layout and in accordance with the deployment scheme indicated in the Proposal.
- License. Subject to the terms of this Agreement, the Organization’s payment of the applicable Fees and the scope of license set forth in the Proposal, CyArx hereby grants the Organization a limited, non-exclusive, non-transferable, and non-sublicense-able license, to use the Software during the Term, within the Organization’s internal IT activities.
- 5.1To facilitate CyArx’s performance of its obligations under the Agreement and the proper provision of the Service, the Organization shall provide CyArx and its staff Performance Information as requested by CyArx and shall facilitate CyArx’s remote access to the Software deployed at the Organization’s site or premises. To the extent that the Organization fails to provide the foregoing, CyArx shall be excused from the performance of its obligations hereunder, insofar as such performance is frustrated by the Organization’s failure to so provide the foregoing.
- 5.2The Organization assumes sole and exclusive responsibility: (i) for all acts or omissions, that the Organization or others on its behalf engage in, in response to the Output Data; (ii) to thoroughly review the Output Data frequently, check for any alerts or warnings issued by the Software, address the findings specified in the Output Data and determine what actions are appropriate in light thereof; and (iii) to carry out such actions as the Organization deems appropriate as a result of the Output Data. CyArx has no responsibility or liability, regarding the Organization’s reliance upon, or use of, the Output Data, the Organization’s actions or omissions in connection with the Output Data, or any consequences resulting therefrom.
- 5.3The Organization acknowledges that given the nature of the Software, the use, operation and performance of the Software relies on the availability and proper configuration of the Related Systems. The Organization acknowledges and agrees that in order to use the Software, the Organization has to acquire and properly manage and configure such Related Systems, at its own responsibility, cost and expense.
- 5.4The Organization shall ensure that all Users fully comply with the substantive terms of this Agreement relating to the Software. The Organization shall be liable to CyArx for all acts and omissions of Users in connection with the Software, as though the Organization itself had performed those acts or omissions.
6. Performance Information and confidentiality
- 6.1The Organization shall ensure that during the Term, the Organization and its representatives (including Users) will work in close cooperation with CyArx to provide and share Performance Information at its disposal. The Organization acknowledges and agrees that during the Term, CyArx and its affiliates in the CyArx corporate group, may remotely access the Software, and review and retrieve Performance Information.
- 6.2The Organization acknowledges and agrees that CyArx and its affiliates in the CyArx corporate group, may use the Performance Information for the following purposes:
- 6.2.1To perform and enforce this Agreement, collect Fees, and conduct administrative activities necessary to maintain and provide the Software and the Service to the Organization;
- 6.2.2If CyArx or and its affiliates in the CyArx corporate group are required or reasonably believes it is required, by law, to share or disclose the Performance Information, provided that, to the extent legally permitted, CyArx will give the Organization prompt notice of the requirement prior to such disclosure; and
- 6.2.3Any other commercial purpose CyArx deems appropriate (including research, development, testing, and enhancing the Software and CyArx’s products and services), provided that CyArx and its affiliates in the CyArx corporate group do not use the Performance Information in any manner that would disclose to any third party, the identity of the Organization as the origin of the Performance Information, other than as required by law.
- 6.3Subject to the foregoing, CyArx and its affiliates in the CyArx corporate group will take precautions to maintain the confidentiality of the Performance Information, in a manner no less protective than CyArx uses to protect its own assets, but in no event less than reasonable care. CyArx and its affiliates in the CyArx corporate group will not use or disclose the Performance Information except as described above or otherwise subject to the express, prior, written permission of the Organization. Personnel of CyArx’s and its affiliates in the CyArx corporate group will access the Performance Information on a strict ‘need to know’ basis, subject to the terms herein.
- 6.4The Organization represents and warrants that it has obtained all permissions and consents, as may be necessary under any agreement or applicable law or, in order to allow CyArx and its affiliates in the CyArx corporate group to use the Performance Information in the manners specified above.
- 6.5The Organization acknowledges that all technical and non-technical information and materials regarding the Software, its functionality, capabilities, structure, design and all other details related thereto, as well the details of this engagement and its performance, all constitute proprietary confidential information of CyArx and its affiliates in the CyArx corporate group. The Organization will treat all such information as confidential in a manner no less protective than it uses to protect its own similar assets, but in no event less than reasonable care. The Organization will not disclose such Confidential Information, or have them disclosed, directly or indirectly to any third party without CyArx’s prior written consent. Subsection 6.2.2 above will apply, mutatis mutandis, to the Organization, if the Organization is required, or reasonably believe that it is required, by law, to share or disclose CyArx’s confidential information.
- 7.1In consideration of the rights granted to you under this Agreement, you will pay all applicable Fees, for each subscription period during the Term, in accordance with the levels, schemes, amounts and payment terms set forth in this Agreement and the Proposal, or as otherwise separately conveyed to you in writing by CyArx or the Reseller. If you have concluded the transaction directly with CyArx, then you shall remit all such Fees to CyArx. If you have concluded the transaction with the Reseller, then you shall remit all such Fees to the Reseller. All Fees are quoted in US Dollars, unless expressly stated otherwise.
- 7.2The applicable periodic subscription Fees are due on the first business day of each subscription period, unless otherwise specified in the Proposal or otherwise agreed upon in writing between you and CyArx or the Reseller (as applicable).
- 7.3The Organization will remit payment of Fees by wire transfer according to the wire details conveyed to the Organization or by any other means of payment CyArx or the Reseller (as applicable) determines from time to time.
- 7.4All Fees payable pursuant to this Agreement and the Proposal are exclusive of taxes or other governmental charges, wire fees, or transaction charges. The Organization is responsible for the payment of all such applicable taxes or charges and will remit grossed-up payments, to include all such taxes, fees and transaction charges. In the event that CyArx or the Reseller (as applicable) is legally obligated to collect or deduct taxes, they are entitled to fully invoice the Organization for the corresponding tax. As soon as possible following a request by CyArx or the Reseller (as applicable), the Organization will provide the taxation documentation necessary for processing the Fees.
- 7.5All Fees paid by the Organization are non-refundable. The Organization is responsible for paying all applicable Fees, whether or not it has actively used the Software or the Service.
- 7.6Without derogating from any other rights and remedies available to CyArx or the Reseller (as applicable) under the applicable law, Fees overdue for more than thirty (30) days will accrue interest at the rate of one and a half percent (1.5%) per month or part thereof, compounded monthly on the linked capital from the due date until the date of actual payment. The Organization agrees to reimburse CyArx or the Reseller (as applicable) for all legal costs and attorney fees CyArx or the Reseller (as applicable) incurs in the course of collecting overdue Fees.
- 7.7Failure to settle any overdue fee within sixty (60) calendar days of its original due date will constitute a material breach of the Agreement.
- 7.8The Organization may not withhold or set-off any payment from any Fees due to CyArx or the Reseller (as applicable).
- 8.1The Organization may not use, or have others use, or provide to third parties, the Software or any part thereof including by reselling, licensing, renting, leasing, transferring, lending, timesharing, assigning or redistributing the Software or any part thereof.
- 8.2The Organization may not modify, make derivative works of, disassemble, de-compile or reverse engineer any part of the Software.
- 8.3The Organization may not use the Software in order to develop, or create, or permit others to develop or create, a similar or competitive product or Software.
- 8.4The Organization may not perform or attempt to perform any of the following: (i) breaching the security of the Software, or identifying any security vulnerabilities thereof; (ii) interfering with, circumventing, manipulating, impairing or disrupting the operation, or the functionality of the Software; (iii) working around or circumventing any technical limitations in the Software; or (iv) using any tool to enable features or functionalities that are otherwise disabled, inaccessible or undocumented in the Software.
- 8.5THE ORGANIZATION MAY NOT USE THE SOFTWARE FOR ANY ACTIVITY THAT CONSTITUTES, OR ENCOURAGES CONDUCT THAT WOULD CONSTITUTE, A CRIMINAL OFFENSE, GIVE RISE TO CIVIL LIABILITY OR OTHERWISE VIOLATE ANY APPLICABLE LAW.
9. Term and Termination
- 9.1This Agreement commences on the start date indicated in the Proposal, and, unless terminated in accordance with the provisions of this section 9 shall remain in full force and effect for an initial subscription period of one year from such start date. Thereafter, the Agreement shall renew automatically for successive one year subscription periods each time, unless a party notifies the other party in writing of its desire not to renew the Agreement at least forty-five (45) days prior to the start of the renewable period.
- 9.2Either party may terminate this Agreement: (a) immediately upon written notice to the other party, if the other party materially breaches this Agreement; (b) upon a fifteen (15) day, prior, written notice of breach, to the other party, if the other party non-materially breaches this Agreement, and failed to cure the breach, within the prior notice period.
- 9.3Upon termination of this Agreement for any reason whatsoever, the Organization must: (a) cease any and all use of the Software and cause all other Users of the Organization to cease any and all use of the Software; (b) permanently uninstall the Software from all computers and other devices in its possession or control; and (c) permanently delete all other copies of the Software in its possession or control. The foregoing (a)-(c) shall not apply if the Parties have executed a separate written agreement, prior to the end of the Term, which grants the Organization a license to continue using the Software after the Term.
- 9.4Termination of this Agreement by CyArx will be, in addition to, and not in lieu of, any equitable or other remedies available to CyArx.
- 9.5Any provision of this Agreement, that by its nature ought to survive the termination of this Agreement, including sections 6, 9, 11 and 12 – 1, will so survive and continue to bind in full force and effect following such termination.
10. Software quality, support and maintenance Service
- 10.1CyArx will use reasonable efforts to have the Software operate properly. However, as software that relies on third party networks, Related Systems, infrastructure, hardware and other software, CyArx does not guarantee that the Software will operate in an uninterrupted or error-free manner, or that it will always be available, free from errors or omissions, malfunctions, bugs or failures, including, but not limited to, hardware failures, software failures and communication failures. If CyArx receives notice of any failure or malfunction, or if CyArx identifies them by itself, CyArx will endeavor to regain the Software’s full functionality as soon as practicable, pursuant to the provisions of this section. However, such incidents will not be considered a breach of this Agreement.
- 10.2The Organization acknowledges that CyArx may, upon coordination with the Organization, suspend the operation of the Software, for periodic maintenance purposes.
- 10.3During the Term, and subject to the terms and conditions of this Agreement and your full payment of all applicable Fees, we, either directly or with the assistance of the Reseller or other third party, will provide you technical support for questions, problems and inquiries regarding the Software, pursuant to the SLA separately provided to the Organization by CyArx.
- 10.4During the Term, and subject to the terms and conditions of this Agreement and your full payment of all applicable Fees, we either directly or with the assistance of the Reseller or other third party, will provide you with such updates to the Software (which may add to, improve or enhance features and capabilities of the then-current version of the Software), to the extent that we issue such updates on ‘general release’ to all customers. We, in our discretion, will determine the frequency and scope of such updates.
11. Intellectual Property
- 11.1The Software is a proprietary product of CyArx or its licensors, protected under copyright laws and international copyright treaties, patent law, trade secret law and other intellectual property rights of general applicability.
- 11.2All rights, title and interest, including copyrights, trademarks, trade names, trade secrets and other intellectual property rights, and any goodwill associated therewith, in and to the Software and any part thereof, including computer code, graphic design, layout and the user interfaces of the Software, and all derivatives, improvements and variations thereof, whether or not based on or resulting from Feedback, are and will remain at all times, exclusively owned by, or licensed, to CyArx. Other than the limited use rights expressly granted herein, no other right, title, interest or license in or to any of the foregoing elements regarding the Software, are granted, sold, transferred, assigned or shared with the Organization.
- 11.3The Software may use or include open source software components (“OSS”). To the extent so stipulated by the license that governs each OSS (“OSS License”), each such OSS is subject to its respective OSS License, not this Agreement, and is licensed to you directly by its respective licensor, not sublicensed by us. If, and to the extent, an OSS License requires that this Agreement effectively impose, or incorporate by reference, certain disclaimers, provisions, prohibitions or restrictions, then such disclaimers, provisions, prohibitions or restrictions shall be deemed to be imposed, or incorporated by reference into this Agreement, as required, and shall supersede any conflicting provision of this Agreement, solely with respect to the corresponding OSS which is governed by such OSS License
- 11.4You grant CyArx permission to use your Marks on CyArx’s website and in its marketing materials and marketing communications, to indicate that are (or were) CyArx’s customer.
- 11.5The Organization will not be entitled to any remuneration from us, for our use of the Performance Information or the Feedback.
12. Disclaimer of Warranty
- THE SOFTWARE AND THE SERVICE ARE PROVIDED TO THE ORGANIZATION “AS IS”. CYARX DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE AND THE SERVICE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, NON-INFRINGEMENT, TITLE, COMPATIBILITY, PERFORMANCE, SECURITY, ACCURACY, OR COMPLETENESS OR CORRECTNESS OF THE OUTPUT DATA. WITHOUT LIMITING THE FOREGOING, CYARX SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES THAT THE SOFTWARE, THE SERVICE, OR THE OUTPUT DATA WILL MEET THE ORGANIZATION’S REQUIREMENTS OR FULFILL ITS NEEDS. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING STATEMENTS REGARDING CAPACITY OR SUITABILITY FOR USE OR PERFORMANCE OF THE SOFTWARE OR THE SERVICE, WHETHER MADE BY CYARX’S EMPLOYEES OR OTHERWISE, SHALL BE DEEMED TO BE A WARRANTY BY CYARX FOR ANY PURPOSE, OR GIVE RISE TO ANY LIABILITY OF CYARX WHATSOEVER.
13. LIMITATION OF LIABILITY
- 13.1EXCEPT FOR BREACH OF CYARX’S CONFIDENTIALITY OBLIGATIONS PURSUANT TO SECTION 6 ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CYARX AND ITS AFFILIATES CORPORATE GROUP COMPANIES, INCLUDING THEIR EMPLOYEES, DIRECTORS, SHAREHOLDERS, ADVISORS, AND ANYONE ACTING ON THEIR BEHALF, WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, STATUTORY OR PUNITIVE DAMAGES, OR ANY OTHER DAMAGE OR LOSS (INCLUDING LOSS OF PROFIT AND LOSS OF DATA), COSTS, EXPENSES AND PAYMENTS, EITHER IN TORT, CONTRACT, OR IN ANY OTHER FORM OR THEORY OF LIABILITY, ARISING FROM, OR IN CONNECTION, WITH THIS AGREEMENT, THE SOFTWARE OR THE SERVICE, INCLUDING ANY USE OF, OR THE INABILITY TO USE THE SOFTWARE; ANY THIRD PARTY HARMFUL ACTS ADVERSELY IMPACTING THE ORGANIZATION’S IT SYSTEMS; ANY DAMAGE TO OR LOSS OF DATA; ANY RELIANCE UPON THE OUTPUT DATA; ANY ERROR, INCOMPLETENESS, INCORRECTNESS OR INACCURACY OF THE OUTPUT DATA, OR INABILITY TO PROPERLY RECOVER DATA; OR ANY OTHER FAILURE, ERROR, OR BREAKDOWN IN THE FUNCTION OF THE SOFTWARE.
- 13.2THE TOTAL AND AGGREGATED LIABILITY OF CYARX AND ITS AFFILIATES CORPORATE GROUP COMPANIES, INCLUDING THEIR EMPLOYEES, DIRECTORS, SHAREHOLDERS, ADVISORS, AND ANYONE ACTING ON THEIR BEHALF, TO THE ORGANIZATION FOR ANY AND ALL DAMAGES WHATSOEVER ARISING FROM, OR IN CONNECTION, WITH THIS AGREEMENT, THE SOFTWARE OR THE SERVICE, SHALL BE LIMITED TO THE FEES THAT THE ORGANIZATION ACTUALLY PAID TO CYARX OR THE RESELLER (AS APPLICABLE) DURING THE 12 MONTHS PRECEDING THE EVENT PURPORTEDLY GIVING RISE TO THE DAMAGE.
- 13.3NOTWITHSTANDING THE FOREGOING, CYARX’S SOLE LIABILITY AND THE ORGANIZATION’S EXCLUSIVE REMEDY, FOR ANY CLAIMS REGARDING THE SOFTWARE’S PERFORMANCE, AVAILABILITY, ERRORS OR MALFUNCTIONS, IS THE PERFORMANCE OF CYARX’S SERVICE OBLIGATIONS.
- The Organization shall indemnify and hold harmless CyArx and anyone acting on CyArx’s behalf, from, and against, any damages, loss, costs, expenses and payments, including reasonable attorney’s fees and legal expenses, resulting from any complaint, claim, allegation or demand arising from or in connection with: (a) your breach of this Agreement; or (b) your use of the Software, or your violation or infringement of any other person’s rights committed by using the Software – in either case, provided that the complaint, claim, allegation or demand would have been avoided but for the use you made of the Software.
15. Governing Law and Venue
- Regardless of the Organization’s jurisdiction of incorporation, the jurisdiction where the Organization engages in business or where the Organization or Users access or use the Software from, this Agreement and the Organization’s and Users’ use of the Software will be exclusively governed by and construed in accordance with the laws of the State of New York, excluding any otherwise applicable rules of conflict of laws. Any dispute, controversy or claim which may arise out of or in connection with this Agreement or the Software, shall be submitted to the sole and exclusive jurisdiction of the New York State Courts located in New York County, and the federal district court for the Southern District of New York. Subject to the following sentence, the Organization and CyArx, each hereby expressly consent to the exclusive personal jurisdiction and venue of such courts, and waive any objections related thereto including objections on the grounds of improper venue, lack of personal jurisdiction or forum non conveniens. Notwithstanding the foregoing CyArx may: (a) lodge a claim against the Organization pursuant to the indemnity clause above, in any court adjudicating a third party claim against CyArx; and ; and (b) seek interim or preliminary relief in any court with competent jurisdiction.
- The Organization may not assign the Agreement without CyArx’s prior written consent, which shall not be unreasonably withheld. Any purported assignment without CyArx’s prior written consent is void. CyArx may assign and delegate this Agreement in its entirety, including all right, duties, liabilities, performance and obligations herein, upon notice to the Organization and without obtaining the Organization’s specific consent, to a third-party, upon a merger, acquisition, change of control or the sale of all or substantially all of CyArx’s equity or assets. By virtue of such assignment, the assignee assumes CyArx’s stead, including all right, duties, liabilities, performance and obligations, and CyArx shall be irrevocably released from the same.
- CyArx may subcontract or delegate the performance of its obligations under the Agreement, the exercise of its rights under the Agreement, or the provision of the Service (or any part thereof), to any third party of its choosing provided, including affiliated companies in the CyArx corporate group, provided however, that CyArx remains liable to the Organization for the performance of its obligations under the Agreement. The Organization acknowledges and agrees that the technical means by which CyArx supplies the Software or the Service is at CyArx’s sole discretion.
18. Complete Terms and Severability
- This Agreement constitutes the entire and complete agreement between the Organization and CyArx concerning the subject matter herein. This Agreement supersedes all prior oral or written statements, understandings, negotiations and representations with respect to the subject matter herein. If any provision of this Agreement is held invalid or unenforceable, that provision shall be construed in a manner consistent with the applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining provisions will remain in full force and effect. This Agreement may be modified or amended only in writing, signed by the duly authorized representatives of both parties.
19. No waiver
- Neither party will, by mere lapse of time, without giving express notice thereof, be deemed to have waived any breach, by the other party, of any terms or provisions of this Agreement. The waiver, by either party, of any such breach, will not be construed as a waiver of subsequent breaches or as a continuing waiver of such breach.
20. Changes to the Agreement
- From time to time, we may change the Agreement, by providing you notice of such changes and seeking your consent to them. In any event, we will seek your consent to any increase in the applicable Fees, before we bill you for a newly priced subscription Fee. If you do not consent to the amended Agreement or new subscription Fees, we may terminate this Agreement as set out in section 9.1.