” means a Customer employee, Customer contractor (who provides services to Customer such that
access to the Service is required).
means, Company’s proprietary data and information provided to Customer in connection
with Customer’s use of the Service, including, without limitation, reports, evaluations
and/or security scores regarding Monitored Organizations that are accessible through the Service.
means, Customer’s proprietary data and information input into and/or stored by the Service
or provided by Customer to Company in connection with the Service, including, without limitation,
user names and login credentials.
” means the standard user documentation for the Service that Company makes generally available
to its customers.
” shall have the meaning set forth in Section 5.1.
Intellectual Property Rights
” means patent rights (including, without limitation, patent applications and disclosures),
copyrights, trade secrets, moral rights, know-how, and any other intellectual property rights
recognized in any country or jurisdiction in the world.
” means any organization tracked or monitored by the Service.
” means the document on which Customer orders access to the Service submitted physically or
virtually through Company’s site.
” means the online services provided by Company, as further described in an Order Form.
” means any Company or third-party software used by Company to provide the Service.
” shall have the meaning set forth in Section 8.1.
means data regarding usage of the Service collected by or provided to Company, including, without
limitation, log data, Node and/or Monitored Organization counts, number of accounts, and usage
statistics collected by the Service or otherwise provided by Customer and/or Authorized Users
to the Company relating to the Service.
2. Service License
2.1 Right to Use
. Subject to Customer’s compliance with the terms and conditions of this Agreement (including,
without limitation, payment of the applicable fees in accordance with Section 5.1), commencing
on the launch date set forth in the Order Form and continuing through the remainder of Term,
Company will provide Customer access to the Service as further specified in the signed Order
Form, solely for Customer’s internal business purposes and limited to the number of Authorized
Users, Nodes and/or Monitored Organizations set out in the Order Form, as applicable.
Customer shall not attempt to interfere with or disrupt the Service or the Software or attempt
to gain access to any systems or networks that connect thereto (except as required to access
and use the Service). Customer shall not allow access to or use of the Service by anyone other
than Authorized Users. Customer will not: (a) copy or modify any portion of the Service
or the Software, (b) distribute, transfer, sublicense, lease, lend or rent any portion of
the Service or the Software to any third party, (c) use or deploy the Service on any Node and/or
Monitored Organization in excess of those for which the Customer has paid the relevant Fees,
(d) alter or remove any proprietary notices in the Service or the Software, or (e) use the Service
for any unlawful purpose, (f) disclose to any third party or publish the results of any testing
on the Service. Customer acknowledges and agrees that portions of the Service and the Software
constitute or contain trade secrets of Company and its licensors. Accordingly, Customer
agrees not to disassemble, decompile or reverse engineer the Service or the Software, or permit
or authorize a third party to do so, except to the extent such restrictions are prohibited by
2.3 Limited Rights
. Customer’s rights in the Service will be limited to those expressly granted in this
Agreement. Company reserves all rights and licenses in and to the Service not expressly
granted to Customer under this Agreement.
3. Customer Obligation
3.1 Cooperation and Assistance
. As a condition to Company’s obligations hereunder, Customer shall at all times: (a)
provide Company with good faith cooperation and assistance and make available such information,
facilities, personnel and equipment as may be reasonably required by Company in order to provide
the Service; (b) provide such personnel assistance and other Customer personnel, as may be reasonably
requested by Company from time to time; and (c) carry out in a timely manner all other Customer
responsibilities set forth in this Agreement.
3.2 Marketing Support
. Customer grants to the Company a non-exclusive, non-transferable (except as permitted herein),
limited license to use the Customer name, trademarks and logos (collectively the “
”): (i) on the Company websites and (ii) in presentations given to potential customers. Company
will obtain Customer’s prior written approval for use of the Customer Marks in any marketing
materials other than the foregoing. The Company will use its commercially reasonable efforts
to cooperate with the Customer in monitoring use of the Customer Marks. All goodwill developed
from the use of the Customer Marks shall be solely for the benefit of Customer. Customer retains
the right to revoke Marketing Support with written notice to Company.
. Customer shall ensure that all Authorized Users comply with the terms and conditions of this
Agreement. Customer shall promptly notify Company of any suspected or alleged violation
of the terms and conditions of this Agreement and shall cooperate with Company with respect to:
(a) investigation by Company of any suspected or alleged violation of this Agreement and (b)
any action by Company to enforce the terms and conditions of this Agreement. Company may
suspend or terminate any Authorized User’s access to the Service upon notice to Customer
in the event that Company reasonably determines that such Authorized User has violated the terms
and conditions of this Agreement or any other agreement between Company and such Authorized User
pursuant to which such Authorized User is permitted to access and use the Service. Customer
will at all times be responsible for all actions taken by or on behalf of an Authorized User,
whether such action was authorized by an Authorized User. Customer shall be liable for
any violation of the terms and conditions of this Agreement by any Authorized User.
3.4 Telecommunications and Internet Services
. Customer acknowledges and agrees that Customer’s and its Authorized Users’ use
of the Service is dependent upon access to telecommunications and Internet services. Customer
shall be solely responsible for acquiring and maintaining all telecommunications and Internet
services and other hardware and software required to access and use the Service, including, without
limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing.
Company shall not be responsible for any loss or corruption of data, lost communications,
or any other loss or damage of any kind arising from any such telecommunications and Internet
Customer may submit Order Forms to Company to purchase access to the Service. No Order
Form will be deemed accepted by Company unless and until Company accepts such Order Form
in writing. Any terms and conditions contained in any Order Form that are inconsistent
with or in addition to the terms and conditions of this
Agreement will be deemed stricken from such Order Form, unless expressly agreed to in writing
. Company will deliver the Service to Customer by permitting Customer to access Service through
delivery of login credentials.
5. Fees; Expenses; Taxes
5.1 Fees and Expenses
. Customer will pay Company the fees for the Service as specified in an accepted Order Form
(“Fees”). Fees are quoted and payable in United States dollars, and fees paid are
non-refundable. Unless otherwise stated in an Order Form, Fees for the Service are due and payable
on an monthly basis at the beginning of each month
5.2 Payment Terms
. Unless otherwise specified in an Order Form, all Fees for access to the Service in any month
will be due and payable on the day of purchase and on the same day each month, thereafter.
If your subscription began on a day not contained in a subsequent month (e.g., your service began
on January 30, and there is no February 30), UpGuard will process your payment on or near the
last day of such month.
Customer will provide Company with a credit card number or other financial account number, the expiration
date of the credit card (if applicable), and Customer’s billing contact information (“Payment
Information”) to permit Company to charge Customer’s payment method (the “Payment
Method”). Customer expressly authorizes Company (or its third-party payment processor)
to charge the Payment Method the applicable Fees. Customer will, upon Company’s request,
supply any additional information necessary to complete such transaction, (such information is
included within the definition of Payment Information). Customer represents and warrants that
it has the legal right to use the Payment Method represented by any such Payment Information.
Customer hereby authorize Company to provide the Payment Information to third parties to charge
the Payment Method the applicable Fees (plus any applicable taxes and other charges). Any payment
due under this Agreement not received by Company within ten (10) days of the due date will incur
interest at a rate of 1.5% per month, or the maximum rate allowed by law, whichever is lower.
. All fees payable under this Agreement are net amounts and are payable in full, without deduction
for taxes or duties of any kind. 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)
associated with this Agreement or Customer’s receipt or use of the Service and Maintenance
Services, except for taxes based on Company’s net income. In the event that Company
is required to collect any tax for which Customer is responsible, Customer will pay such tax
directly to Company. If Customer pays any withholding taxes that are required to be paid
under applicable law, Customer will furnish Company with written documentation of all such tax
payments, including receipts.
” means any business or technical information disclosed by one party to the other party that:
(i) if disclosed in writing, is marked “confidential” or “proprietary”
at the time of disclosure; (ii) if disclosed orally, is identified as “confidential”
or “proprietary” at the time of disclosure, and is summarized in a writing sent by
the disclosing party to the receiving party within thirty (30) days after any such disclosure;
or (iii) under the circumstances, a person exercising reasonable business judgment would understand
to be confidential or proprietary. For clarity, (a) Customer Data is considered to be Confidential
Information of Customer, (b) Company Data and the Service are Company’s Confidential Information,
and (c) the terms of this Agreement constitute Confidential Information of both parties.
. The obligations and restrictions set forth in
will not apply to any information that: (i) is or becomes generally known to the public
through no fault of or breach of this Agreement by the receiving party; (ii) is rightfully
known by the receiving party at the time of disclosure; (iii) is independently developed
by the receiving party without use of the disclosing party’s Confidential Information;
or (iv) the receiving party rightfully obtains from a third party who has the right to disclose
such information without breach of any confidentiality obligation to the disclosing party.
6.3 Use and Nondisclosure
. A receiving party will not use the disclosing party’s Confidential Information except
as necessary for the performance or enforcement of this Agreement and will not disclose such
Confidential Information to any third party except to those of its employees and subcontractors
who have a bona fide need to know such Confidential Information for the performance or enforcement
of this Agreement;
that each such employee and subcontractor is bound by a written agreement that contains use
and disclosure restrictions consistent with the terms set forth in this Section. Each receiving
party will protect the disclosing party’s Confidential Information from unauthorized use
and disclosure using efforts equivalent to the efforts that the receiving Party ordinarily uses
with respect to its own confidential information and in no event less than a reasonable standard
of care. The provisions of this
will remain in effect during the term of this Agreement and for a period of three (3) years
after the expiration or termination of this Agreement, provided that, as to any Confidential
Information that the Disclosing Party maintains as a trade secret, the Receiving Party’s
obligations under this
will remain in effect for as long such Confidential Information remains a trade secret.
6.4 Permitted Disclosures
. The provisions of this
will not restrict either party from disclosing Confidential Information pursuant to the order
or requirement of a court, administrative agency, or other governmental body;
that the party required to make such a disclosure gives reasonable notice to the other party
to enable it to contest such order or requirement or limit the scope of such request. The
party responding to such an order or requirement will only disclose that information that is
expressly required. Either party may disclose the terms and conditions of this Agreement to such
party’s advisors, accountants, attorneys, investors (and prospective investors), and prospective
acquirers as have a reasonable need to know such information, provided that any such third parties
will, before they may access such information, either (a) execute a binding agreement to keep
such information confidential or (b) be subject to a professional obligation to maintain the
confidentiality of such information.
7.1 Service and Company Data
. As between Company and Customer, the Service and the Company Data, and all Intellectual Property
Rights therein or relating thereto, are and shall remain the exclusive property of Company or
7.2 Customer Data
. Company acknowledges that, as between Customer and Company, Customer owns all worldwide right,
title and interest in and to all Customer Data and Company will not obtain any ownership rights
in such data. Customer hereby grants to Company a royalty free, non-exclusive, revocable
license during the Term to use the Customer Data (i) to provide the Service and Maintenance Services
to Customer; and (ii) to improve the Service and Services.
7.3 Usage Data
. Customer acknowledges and agrees that Company may collect or receive Usage Data in connection with
Customer’s use of the Software and/or Service.
Customer acknowledges and agrees that Company may collect or receive Usage Data in connection with
Customer’s use of the Service and that such Usage Data is and will remain the sole and
exclusive property of Company. Company may use the Usage Data for its business purposes, including,
without limitation, to improve and market Company’s products and services, provided that
such data is not distributed or otherwise conveyed in a context that could reasonably identify
Customer as its source.
. Customer hereby grants to Company a royalty free, non-exclusive, irrevocable license to use
any suggestions or feedback that the Customer has provided to the Company relating to the Service
for its business purposes.
8. Term and Termination
. This Agreement shall commence on the Effective Date and shall continue on a month-to-month
basis unless either party notifies the other in writing of its intent not to renew at least thirty
(30) days prior to the effective date of termination.
8.2 Termination for Cause
. Either party may terminate this Agreement upon written notice if the other party materially
breaches this Agreement and fails to correct the breach within fifteen (15) days following written
notice specifying the breach; provided that the cure period for any breach with respect to payment
shall be five (5) business days.
8.3 Rights and Obligations Upon Expiration or Termination
. Upon expiration or termination of this Agreement, (i) Customer’s and Authorized Users’
right to access and use the Service shall immediately terminate, (ii) Customer and its Authorized
Users shall immediately cease all use of the Service, and (ii) each party shall return and make
no further use of any Confidential Information, materials, or other items (and all copies thereof)
belonging to the other party. Upon expiration or termination of this Agreement, Company shall
cease use of the Customer Marks (as defined in
; provided, however, that (a) Company shall have a reasonable time to remove the Customer Marks from
promotional materials, (b) Company shall be entitled to exhaust materials printed during the
Term that include the Customer Marks, and (c) Company shall not be required to remove any such
printed materials from circulation.
9.1 Warranties by both Parties
. Each party warrants that it has full power and authority to enter into and perform its obligations
under this Agreement, and the person entering into this Agreement on such party’s behalf
has been duly authorized and empowered to enter into this Agreement.
9.2 Service Warranty
. Company warrants to the Customer that the Servic`e will perform under normal use in all material
respects with the Documentation. Company’s sole obligation under the limited warranty set
forth in this Section 9.2 is to use its reasonable efforts to correct or replace any non-conforming
Service or, at Company’s sole discretion, to terminate this Agreement
. The warranties under Section 9.2 do not apply to any: (a) use of the Service not in accordance
with this Agreement, including Customer operation or use of the Service other than in accordance
with applicable Documentation or design or on hardware not recommended, supplied or approved
by Company; (b) modification, damage, misuse or other action of Customer or any third party;
or (c) combination of the Service with any goods, services or other items provided by Customer
or any third party.
. EXCEPT AS EXPRESSLY PROVIDED IN
, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION
WITH THIS AGREEMENT OR THE SERVICE. WITHOUT LIMITING THE FOREGOING, EXCEPT AS EXPRESSLY
, COMPANY DISCLAIMS ANY WARRANTY THAT THE SERVICE WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL
ERRORS WILL BE CORRECTED. COMPANY FURTHER DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT
TO SERVICE AS TO MERCHANTABILITY, ACCURACY OF ANY INFORMATION PROVIDED, FITNESS FOR A PARTICULAR
PURPOSE, OR NON-INFRINGEMENT. COMPANY FURTHER DISCLAIMS ANY AND ALL WARRANTIES ARISING
FROM COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN,
OBTAINED FROM COMPANY OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
10.1 Indemnification by Company
. Company shall defend any suit or action brought against Customer to the extent that it is
based upon a third party claim that the Service, as provided by Company to Customer pursuant
to this Agreement, infringes any U.S. patent or any copyright or misappropriates any trade secret,
and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim
that are awarded in final judgment against or paid in settlement by Customer. Company’s
obligations under this
are contingent upon: (a) Customer providing Company with prompt written notice of such claim;
(b) Customer providing reasonable cooperation to Company in the defense and settlement of
such claim; and (c) Company having sole authority to defend or settle such claim.
. If Customer’s use of the Service is, or in Company’s opinion is likely to be,
enjoined due to the type of claim specified in
, then Company may at its sole option and expense: (i) replace or modify the Service to make it non-infringing
and of equivalent functionality; (ii) procure for Customer the right to continue using the
Service under the terms of this Agreement; or (iii) if Company is unable to accomplish either
(i) or (ii) despite using its reasonable efforts, terminate Customer’s rights and Company’s
obligation under this Agreement with respect to such Service and refund to Customer a pro-rata
portion of the fees paid by the Customer relating to the period which Customer would have had
access to the Service.
. Notwithstanding the terms of
, Company will have no liability for any infringement or misappropriation claim of any kind to the
extent that it results from: (a) use of the Service not in accordance with this Agreement,
including Customer operation or use of the Service other than in accordance with applicable Documentation;
(b) modification, damage, misuse or other action of Customer or any third party; or (c) combination
of the Service with any goods, services or other items provided by Customer or any third party.
10.4 Sole Remedy
. THE FOREGOING STATES THE ENTIRE OBLIGATION OF COMPANY AND ITS LICENSORS WITH RESPECT TO ANY
ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE SERVICE.
10.5 Indemnification by Customer
. Customer shall defend Company, its officers, directors and employees (collectively, “
”), from and against any action or suit brought against a Company Indemnitee by a third party
in connection with Customer’s or an Authorized User’s use of the Service (other than
any claim for which Company is responsible under
including, but not limited to, a claim that the Customer Data or Customer’s use of the Service
in breach of this Agreement infringes or misappropriates any Intellectual Property Rights of
a third party, and will pay any costs, damages and reasonable attorneys’ fees attributable
to such claim that are awarded in final judgment against or paid in settlement by Company. Customer’s
obligations under this
are contingent upon: (a) Company providing Customer with prompt written notice of such claim;
(b) Company providing reasonable cooperation to Customer, at Customer’s expense, in
the defense and settlement of such claim; and (c) Customer having sole authority to defend or
settle such claim.
11. Limitation of Liability
EXCEPT FOR LIABILITY ARISING FROM A BREACH OF
, AND FOR THE PARTIES INDEMNIFICATION OBLIGATIONS IN
, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY
OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES FOR LOSS OF INCOME, DATA, PROFITS OR REVENUE, BUSINESS
INTERRUPTION, COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT SUCH PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS
BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY)
NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, EXCEPT FOR LIABILITY ARISING FROM A BREACH
, AND FOR THE PARTIES INDEMNIFICATION OBLIGATIONS IN
, IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY TO CUSTOMER AND ANY THIRD PARTY
IN CONNECTION WITH THIS AGREEMENT OR CUSTOMER’S ACCESS TO AND USE OF THE SERVICE AND THE
SERVICES EXCEED THE TOTAL FEES PAID BY CUSTOMER UNDER THIS AGREEMENT IN THE THREE (3) MONTH
PERIOD PRECEDING THE CLAIM OR ACTION, REGARDLESS OF THE FORM OR THEORY OF THE CLAIM OR ACTION.
The parties acknowledge that the limitations and exclusions contained in
and elsewhere in this Agreement have been the subject of negotiation between the parties
and represent the parties’ agreement based upon the perceived level of risk associated
with their respective obligations under this Agreement, and the payments made hereunder.
Without limiting the generality of the foregoing, the parties acknowledge and agree that
(a) the provisions hereof that limit liability, disclaim warranties or exclude consequential
damages or other damages or remedies will be severable and independent of any other provisions
and will be enforced as such, regardless of any breach hereunder, and (b) all limitations
of liability, disclaimers of warranties, and exclusions of consequential damages or other
damages or remedies will remain fully valid, effective and enforceable in accordance with
their respective terms, even under circumstances that cause an exclusive remedy to fail of
its essential purpose.
. The rights and obligations of Company and Customer contained in
(Fees, Expenses and Taxes),
(Rights and Obligations Upon Expiration or Termination),
(Limitation of Liability),
(General) shall survive any expiration or termination of this Agreement.
13.2 Governing Law
. This Agreement and all matters arising out of or relating to this Agreement shall be governed
by the laws of the State of California, without regard to its conflict of law provisions. Any
legal action or proceeding relating to this Agreement shall be brought exclusively in the state
or federal courts located in the Northern District of California in San Francisco County. Company
and Customer hereby agree to submit to the jurisdiction of, and agree that venue is proper in,
those courts in any such legal action or proceeding.
. The waiver by either party of any default or breach of this Agreement shall not constitute
a waiver of any other or subsequent default or breach.
. All notices, including notices of address change, required to be sent hereunder will be in
writing and will be sent to the addresses set forth above or delivered in person. The notices
will be deemed to have been given upon: (a) the date actually delivered in person; (b) the day
after the date sent by overnight courier; or (c) three (3) days following the date such notice
was mailed by first class mail. Notices may be confirmed by email or fax
. In the event any provision of this Agreement is held to be invalid or unenforceable, the
remaining provisions of this Agreement shall remain in full force and effect.
13.6 Force Majeure
. Neither party shall be liable hereunder by reason of any failure or delay in the performance
of its obligations hereunder (except for the payment of money) on account of events beyond the
reasonable control of such party, which may include without limitation denial-of-service attacks,
strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism,
governmental action, labor conditions, earthquakes, service provider defaults and material shortages
(each a “
Force Majeure Event
”). Upon the occurrence of a Force Majeure Event, the non-performing party will be excused
from any further performance of its obligations effected by the Force Majeure Event for so long
as the event continues and such party continues to use commercially reasonable efforts to resume
13.7 Compliance with Laws
. Each party agrees to comply with all applicable laws and regulations with respect to its
activities hereunder, including, but not limited to, any export laws and regulations of the United
13.8 Relationship Between the Parties
. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency
relationship between the parties. Neither party will have the power to bind the other or
to incur obligations on the other’s behalf without such other party’s prior written
. Customer may not assign or transfer this Agreement, in whole or in part, without Company’s
prior written consent. Company may freely assign or transfer this Agreement, in whole or
in part, by operation of law or otherwise. Any attempted assignment or transfer in violation
of this Section will be null and void. Subject to the foregoing restrictions, this Agreement
shall inure to the benefit of the successors and permitted assigns of the parties.
13.10 Entire Agreement
. This Agreement together with the exhibits hereto constitutes the complete and exclusive agreement
between the parties concerning its subject matter and supersedes all prior or contemporaneous
agreements or understandings, written or oral, concerning the subject matter of this Agreement.
This Agreement may not be modified or amended except in a writing signed by a duly authorized
representative of each party.
13.11 Non-Exclusive Remedies
. Except as set forth in
Sections 9.2, 9.3 and 10.4
, the exercise by either party of any remedy under this Agreement will be without prejudice to its
other remedies under this Agreement or otherwise.
13.12 Equitable Relief
. Each party acknowledges that a breach by the other party of any confidentiality or proprietary
rights provision of this Agreement may cause the non-breaching party irreparable damage, for
which the award of damages would not be adequate compensation. Consequently, the non-breaching
party may institute an action to enjoin the breaching party from any and all acts in violation
of those provisions, which remedy shall be cumulative and not exclusive, and a party may seek
the entry of an injunction enjoining any breach or threatened breach of those provisions, in
addition to any other relief to which the non-breaching party may be entitled at law or in equity.
13.13 No Third-Party Beneficiaries
. This Agreement is intended for the sole and exclusive benefit of the signatories and is not
intended to benefit any third party. Only the parties to this Agreement may enforce it.
13.14 Export Control
. Customer agrees to comply fully with all relevant export laws and regulations of the United
”) to ensure that neither the Service, nor any direct product thereof are: (a) exported or
re-exported directly or indirectly in violation of Export Laws; or (b) used for any purposes
prohibited by the Export Laws, including but not limited to nuclear, chemical, or biological
. This Agreement may be executed in counterparts, each of shall constitute an original, and all of
which shall constitute one and the same instrument.
. The headings in this Agreement are for the convenience of reference only and have no legal effect.
Company Confidential Information