(Updated: September 17, 2020)
- Whereas, the Licensor develops, markets, and licenses the Platform Software (as defined below), designed to allow the detection and analysis of cyber attacks, and
- Whereas, the Licensee wishes to obtain, and the Licensor wishes to grant to Licensee, a license to install, access and / or use the Platform Software, in accordance with the terms and conditions of this Agreement,
- Now therefore, the parties agree to enter into this Agreement, under the following terms and conditions:
1.1 “Agreement” means the License and Services Agreement between Licensor and Licensee, consisting of (i) the registration done by the Licensee (as defined below), (ii) any executed, attached Quotations, and (iii) these General Terms and Conditions (as hereinafter defined).
1.2 “Confidential Information” means any non-public information, data, materials, intellectual property rights, trade secrets, patents, copyrights, designs, techniques, plans or know-how, whether or not marked or designated as confidential at any time, of either Party and in any form of media, including, but not limited to, documentary form, oral form, visual form or written form, or machine-readable or other electronic form, presentation or demonstration form, or computer generated, and regardless of the manner in which furnished and disclosed by or on behalf of one Party (“Discloser”) to the other Party (“Recipient”) under the Agreement. Licensor’s Confidential Information will automatically include, but is not limited to, (i) the terms and conditions of the Agreement, information relating to Licensor’s past, present, and future research and products (including the Software Platform), related documentation or any part thereof, problems and defects discovered, workarounds, corrections, resolutions, performance capabilities, assets, liabilities, operations, methods, policies, strategies, services, customers or customer lists, agreements, developments, inventions, processes, hardware configuration information, marketing, technical, non-technical, business, financial and other information and any derivatives and modifications thereof; (ii) all notes, memoranda, analyses, compilations, studies, surveys, reports, test results, formulas, forecasts, interpretations, transactions and data relating to employees, consultants, directors, officers and shareholders and other documentation of the Recipient, based on, relating to, derived from, and/or incorporating, in whole or in part, Confidential Information; and (iii) the existence of this Agreement and its terms, the fact that the Parties are in discussions on the matter and its status and terms thereof. It is understood and agreed that the Discloser will not furnish to the Recipient any source code, information subject to export controls or “personally identifiable financial information” within the meaning of applicable law, or other non-public personal information of any natural person, except as the Parties may expressly agree in a written supplement hereto.
The Confidential Information does not include information that the Recipient can prove by Recipient’s contemporaneous written records and files: (i) is lawfully in the possession of or known to the Recipient prior to the time of disclosure, without violation of any obligation of confidentiality; (ii) prior to or after the time of disclosure is or becomes publicly known other than as a result of any improper inaction or action of the Recipient; (iii) is lawfully made available to the Recipient by a third party without restriction on disclosure and without breach of a nondisclosure obligation; (iv) is developed independently by the Recipient without use of any Confidential Information of the Discloser; (v) is made available to third parties by the Discloser without restriction on the disclosure of such information; or (vi) is approved by the Discloser for release in writing.
1.3 “Contract Fee” means the Subscription Fees for the use of the Software Platform, and any Professional Services Fees, as applicable, during the applicable Subscription Period. The Contract Fees are detailed in the applicable Quotation.
1.4 “Documentation” means any and all documentation and material relating to the Software Platform, in any form, provided by Licensor to Licensee under the Agreement, including through any of Licensor’s then-current online platforms, for use together with the Software Platform, but does not include any material maintained by Licensor as marketing material however distributed.
1.5 “Endpoint” means a computing device supported by a PSafe Sensor, including, but not limited to, a desktop, server, laptop, workstation, mobile device, and virtual desktop. “Active Endpoint” means a unique Endpoint registered by the Software Platform as active during a monthly billing cycle, even if such Endpoint was activated and deactivated during the same billing cycle or active during only part of the billing cycle.
1.6 “General Terms and Conditions” means this “License and Services Agreement – General Terms and Conditions”, as incorporated by reference in the Quotation and/or any additional Quotations executed and delivered by the Parties.
1.7 “Licensee Sites” means the physical locations at which the computing devices (including, but not limited to, desktop, portable, mobile, “internet of things “ and other connected devices, as applicable to the Software Platform) of Licensee and its employees, independent contractors, agents or other representatives, are permitted to be used under the Agreement, consistent with the number of Endpoints allowed.
1.8 “Licensor Package” means the Software Platform, any Documentation, and/or any Confidential Information of Licensor and of providers of any third-party software included in the Software Platform.
1.10 “Professional Services” means those professional services (including security services that may be provided by Licensor), if any, specified in a separate work proposal (each one, a “Work Proposal”) entered into by the Parties that accompany a Quotation, as applicable to the services to be provided, and the Agreement, and subject to the terms and conditions of each of them. The services that constitute the Professional Services are external to the services provided as part of the Software Platform.
1.11 “Professional Service Fees” has the meaning set forth in Section 6.2.
1.12 “Prohibited Person” means any individual or entity that is (i) on the U.S. Department of Commerce’s Denied Persons List, Entity List, Unverified List or affiliated lists, (ii) on the OFAC Specially Designated Nationals and Blocked Persons List (“SDN List”), (iii) on the U.S. Department of State’s Debarred List or Nonproliferation List, (iv) located, resident, or organized in jurisdictions subject to U.S. and other applicable territorial sanctions (collectively “Prohibited Jurisdictions”; as of the date of the General Terms and Conditions included in the Agreement, such jurisdictions include, without limitation, Cuba, Iran, Iraq, Lebanon, Libya, North Korea, Sudan, Syria, and the region of Crimea), or (v) otherwise the targets of any Export Controls and Economic Sanctions Laws.
1.13 “PSafe Sensor” means a component provided by Licensor subject to the Agreement that collects data on the events and operations that occur at each Endpoint.
1.14 “Quotation” means the value of the Subscription plan offered by the Licensor or a Reseller, as applicable, to the Licensee related to the use of the Software Platform, as described in Section 5.1 of this document.
1.15 “Renewal” or “renewal” in reference to a Subscription Period means any one or more Subscription Periods beginning after the initial Subscription Period, on the terms and subject to the conditions, specified in the Quotation.
1.16 “Reseller” means an individual or entity authorized by Licensor to sell Subscriptions to the Software Platform to Licensees.
1.17 “Services Start Date” means the start date for Professional Services specified in a Work Proposal, subject to the terms and conditions of this Agreement.
1.18 “Software Platform” means the edition and version of Licensor’s commercially available software specified in the applicable Quotation (or if a version is not specified, the current version of such software on the date of the General Terms and Conditions included in the Agreement) and includes new versions that may be provided to Licensee by Licensor under the Agreement. The Software Platform may include certain software associated with that version and installed on client computers (i.e., computers that are not normally accessible on the network by other users), and/or servers and/or cloud-based services hosted by or on behalf from PSafe, including, but not limited to, the web-based user interface and PSafe Sensor software on licensed Endpoints.
1.19 “Specifications” means the functional specifications of the Software Platform and the technical requirements specified in the Documentation.
1.20 “Start Date” means the date specified for the start of a Subscription by the Licensee in relation to the use of the Software Platform.
1.21 “Subscription” means the license granted by the Licensor to the Licensee to use the Software Platform during each Subscription Period.
1.22 “Subscription Period” means the period of time, from the Start Date, contracted by the Licensee through a Subscription to use the Software Platform and receive Support and Maintenance. Depending on Licensee’s election at the Start Date, Subscription Periods are either monthly or annual, with billing as described in Section 5.2 below.
1.23 “Work Proposal” has the meaning established in the definition of Professional Services.
1.24 “Support and Maintenance” means the support and maintenance services to be provided by Licensor to Licensee with respect to the Software Platform during the relevant Subscription Period, to be performed in accordance with the specified terms in the Exhibit A.
1.25 “Subscription Fee” means the fee payable per Active Endpoint in accordance with Section 5 per the Subscription pursuant to Section 2 for the use of the Software Platform during each Subscription Period.
1.27 “User” means Licensee’s (or, as applicable, Licensee’s wholly-owned subsidiaries’) employees, independent contractors, agents, or other representatives whose Endpoints have been authorized for PSafe Sensor data collection in accordance with the terms of this Agreement.
2. Subscription, License and Services
2.1. Subject to the terms and conditions of the Agreement, including, without limitation, payment of the applicable Contract Fees:
(a) In consideration of the payment of the Subscription Fee applicable for a Subscription Period, the Licensor grants to Licensee, and Licensee hereby accepts, a personal, non-exclusive, non-transferable (except as permitted here) and non-sublicensable license, valid during each Subscription Period, to:
(i) install and use the Software Platform (including the PSafe Sensors) exclusively for Licensee’s internal cybersecurity purposes, in accordance with the Agreement and Documentation;
(ii) grant Licensee’s Users the right to access and use the Software Platform (including the PSafe Sensors) under the Agreement.
Licensee and its Users shall be authorized to install the PSafe Sensors on devices, and allow the use of the Software Platform by its wholly-owned subsidiaries which qualify hereunder for such installation and use of such PSafe Sensors, provided that all limitations and waivers of liability and disclaimers of warrant hereunder shall apply to such implantation and use.
The Subscription granted here for each Subscription Period will be fully effective at the start, and for the duration, of each Subscription Period, provided that such Subscription shall terminate upon the termination or expiration of the Agreement in accordance with Section 13.
(b) Licensor agrees to provide, under the terms and conditions set forth herein, Support and Maintenance in relation to the Software Platform.
(c) Licensor agrees to provide, under the terms and conditions set forth herein, such Professional Services as Licensee may acquire, as specified in one or more executed Quotations and the related Work Proposal(s).
2.2 Licensor may offer the use of the Software Platform and related services for a limited period of time without charge (a “Free Trial”). In such cases, the grant of license shall follow the terms set forth in 2.1 above, except that (i) no Contract Fees (including Subscription Fees) will be due from Licensee in consideration for the Free Trial period, (ii) Licensor shall have no obligation to provide Support and Maintenance to Licensee or Licensee’s Users during the Free Trial period, and (iii) the license shall expire automatically at the end of the Free Trial period unless the Licensee purchases a Subscription.
(a) Unless otherwise specified in writing between the Licensee and Licensor, the Free Trial period shall be thirty (30) calendar days (as counted from the day that the Licensee first registers an account for the Free Trial).
(b) Licensor shall have the right to suspend performance under the Agreement including Licensee’s access to the Software Platform, if (i) Licensee violates any applicable clause of this License Contract during the Free Trial period or (ii) if Licensee does not purchase a Subscription before the Free Trial period ends.
(c) If Licensee does not purchase a Subscription within sixty (60) days of the end of the Free Trial period, Licensor shall have the right to cancel Licensee’s account (and to delete it and all associated data). To return to use the service following an account cancellation, Licensee will be required to register a new account and to purchase a Subscription (any such new account will not be entitled to a Free Trial period).
3.1 Except as otherwise specifically authorized by the Agreement, Licensee will not: (i) copy, modify, sublicense, sell, distribute, transfer, tamper with, reverse engineer, disassemble or decompile the Licensor Package or any part thereof or otherwise attempt to derive or obtain the source code of the Software Platform or any part thereof; (ii) modify, improve or make derivative works incorporating the Software Platform or any part thereof, nor use the Software Platform or any part thereof as part of a service bureau, or provide commercial timesharing rental or other sharing arrangements to third parties; (iii) remove and/or change any copyright notices, trademark, logo or other proprietary or restrictive notice (hereinafter, collectively “Proprietary Notices“) or legend affixed to, contained or included in, the Licensor Package (and Licensee will reproduce and copy all such Proprietary Notices on all copies of the Licensor Package or any part thereof, made in accordance with and subject to the terms of the Agreement); and/or (iv) disclose the results to any third party of any testing or benchmarking of the Software Platform.
3.2 In making use of the Software Platform, Licensee and its authorized Users shall comply with all applicable laws, including data protection and privacy laws and export control laws. Licensee shall cooperate with what Licensor reasonably requests to confirm such compliance by Licensee and its authorized Users.
3.3 Certain technology and software components of the Licensor Package may be subject to U.S. and other applicable Export Controls and Economic Sanctions Laws. Licensee will comply strictly with all Export Controls and Economic Sanctions Laws, as they relate to such technology and software, including access to and use of the Licensor Package. In addition, Licensee represents and warrants that Licensee and its Users are not Prohibited Persons. In addition, Licensee will not, and will cause its Users to not, provide access to any portion of the Licensor Package to any Prohibited Person, including any government or organization or individual located, resident, or organized in the Prohibited Jurisdictions, or to any entity or individual with knowledge or reason to know that any part of the Licensor Package will be used for the proliferation of nuclear, chemical or biological weapons, or for missile development purposes.
3.4 The licensee must not use the Software Platform in any application that involves risk of death, personal injury, or severe property or environmental damage, or any life support applications, devices or systems, except as explicitly approved by the Licensor’s Chief Executive Officer.
4.1. All title, right and interest in the Software Platform and developments and derivatives thereof (regardless of whether such developments and derivatives have been made in accordance with any request and/or Feedback by Licensee), the related Documentation, Specifications and Licensor’s Confidential information, including all patents, trademarks, trade names, logos, copyrights, inventions, technology, design, schematics, know how, trade secrets and any other intellectual property rights relating to the Software Platform, the Documentation, specifications and Licensor’s Confidential Information, are the exclusive property of the Licensor. Nothing in the Agreement shall constitute a waiver of Licensor’s rights under any law or be in any way interpreted or construed as such.
5. Quotations, Contract Fees, Payment Terms, Taxes and Late Payments
5.1 For each component of the Software Platform that Licensee wishes to license and/or Support and Maintenance and/or Professional Services that Licensee wishes to acquire during the Subscription Period, the Licensor or Reseller, as applicable, shall present to Licensee an initial Quotation (which may consist of separate initial Quotations for individual products and services to be covered under the Agreement), which will specify, among other things:
(i) the Software Platform to be licensed;
(ii) the start date and duration of the initial Subscription Period, as well as any automatic renewal Subscription Periods;
(iii) any Professional Services to be purchased by Licensee;
(iv) the Subscription Fees and any other Contract Fees due for the initial Subscription Period and for any other period(s) identified therein;
(v) if other than set forth in the following paragraph of this Section 5.1, the Contract Fees due during any renewal Subscription Period and any other fees due during such Renewal Subscription Period.
Unless otherwise specified in the related Quotation:
(i) the initial Subscription Period ending on the Subscription’s end date stated in the applicable Quotation will be followed by renewal Subscription Periods of equal length that will start automatically on expiration of the previous Subscription Period, unless the Agreement is terminated in accordance with the General Terms and Conditions prior to the beginning of such ensuing renewal Subscription Period, subject in all cases to Sections 5 and 13 of these General Terms and Conditions;
(ii) the Subscription Fee in relation to the license of each component of the Software Platform during each renewal Subscription Period will be equal to the corresponding Subscription Fee in effect at the end of the immediately preceding Subscription Period, readjusted annually, or in the shortest period legally allowed, by the IGP-M (or substantially similar index, as determined by Licensor from time to time, for countries other than Brazil); and
(iii) the Professional Services Fees for any Professional Services contracted during a previous Subscription Period that are to be delivered during one or more subsequent renewal Subscription Periods, will be equal, in each of those subsequent renewal Subscription Periods, to the corresponding Professional Services Fees in effect at the end of the respective preceding Subscription Period, readjusted annually, or in the shortest period legally allowed, by the IGP-M (or substantially similar index, as determined by Licensor from time to time, for countries other than Brazil).
Payment of Subscription Fees and other Contract Fees and amounts due hereunder shall be as specified in Section 5.2 unless otherwise set forth in the applicable Quotation.
Upon confirmation by the Parties of the terms set out in a Quotation, such Quotation shall be duly executed, physically or by electronic means acceptable to Licensor, by each respective Party and such Quotation, together with the General Terms and Conditions (or the End User Agreement, in the case of a Quotation issued by a Reseller) and other documents, as applicable, specified in the definition of Agreement hereunder, shall constitute the Agreement as of the Start Date stated in such Quotation.
A Quotation will be considered “active” if the term initiated thereby has not expired or been terminated in accordance with Section 13 of these General Terms and Conditions. Any additional products or services to be acquired by Licensee after the initial Quotation, and any changes, modifications, or additions to an active Subscription, will be (i) specified in a new Quotation or (ii) automatically implemented by Licensor if limited to Licensee’s movement between Subscription Fee tiers based on number of active Endpoints.
Each Quotation will expressly incorporate by reference the General Terms and Conditions or the End User Agreement, as the case may be.
5.2 Licensee shall pay the applicable Subscription Fees and other Contract Fees for the Software Platform covered under the Agreement in accordance with the following payment terms:
(a) For both annual and monthly Subscription Periods, billing for Subscription Fees will be performed on an approximate monthly basis calculated from the Licensee’s Start Date:
(i) for Start Dates between the 1st and 28th day of the month, billing for the period will occur on the same day of the next calendar month (for example, if the Licensee’s Start Date is September 15, 2020, the invoice for the billing period will be issued on October 15, 2020);
(ii) for Start Dates between the 29th and 31st day of a month, billing for the period will occur on the first day of the second calendar month after the Start Date (for example, if the Licensee’s Start Date is September 30, 2020, the invoice for the billing period will be issued on November 01, 2020).
(b) The total Subscription Fees invoiced and due for a billing period will be the greater of:
(i) Licensee’s total number of Active Endpoints during such billing period multiplied by the full applicable Subscription Fee (per Licensee’s then-current Subscription plan); or
(ii) a minimum amount (the “Minimum Subscription Fees”) calculated on the basis of ten (10) Active Endpoints multiplied by the full applicable Subscription Fee (per Licensee’s then-current Subscription plan), even if Licensee does not have that many Endpoints active during such billing period.
(c) Licensor or Reseller, as applicable, will issue to Licensee one or more invoices (with reference to the Licensee’s Quotation number) for all amounts due under the Agreement. Licensor or Reseller, as applicable, will send invoices electronically by email to Licensee, or according to other instructions supplied by Licensee. The full amount of Subscription Fees and other Contract Fees provided for hereunder (including all Subscription Fees and Contract Fees applicable to any automatic renewal Subscription Periods) is recognized as fully earned by Licensor’s entrance into the Agreement, as the agreed consideration for granting the Subscription (including for any automatic renewal periods), and for any other agreement committing Licensor to provide services as purchased by Licensee from the Services Start Date, even if a Subscription Fee or other Contract Fee is specified as payable in installments during a Subscription Period or pursuant to separate invoices (such installment payment and separate billing methodology is for Licensee’s convenience only).
(d) Payment of invoices received by Licensee will be in accordance with the contracted terms. Licensee agrees to pay the full amount thereof, without deduction, offset, setoff, counterclaim or reduction, recoupment, or other charge.
(e) Payment will be made by credit card (or, as an option only for customers in Brazil, bank payment slip). In the case of payment by credit card, Licensee hereby authorizes, on issuance of the invoice, the recurring debit of the amounts due on Licensee’s registered credit card. Specific to bank payment slips for Brazilian customers, the due date will be seven (7) calendar days after the date the invoice is issued, unless otherwise set forth on the payment slip.
5.3 With respect to the amounts due to Licensor that are not paid by Licensee by the due date required by the Agreement, a fine of 2% (two percent) and interest of 1% (one percent), or the maximum rate allowed by applicable law (if lower), will be charged per month from the due date until the date of actual payment.
5.4 Without limiting any other right or remedy available to Licensor, in the event of any payment due from Licensee to Licensor (including, but not limited to Subscription Fees and Professional Service Fees) that is more than eight (08) days late, counted from the due date, Licensor shall have the right to suspend performance under the Agreement including Licensee’s access to the Software Platform, until all payments are made current. In the event of any payment due from Licensee to Licensor that is more than sixty (60) days late, Licensor shall have the right to cancel Licensee’s account (and to delete it and all associated data). To return to use the service following an account cancellation, Licensee will be required to register a new account and to purchase a Subscription (any such new account will not be entitled to a Free Trial period).
6. Support, Maintenance and Professional Services
6.1 The Licensor will use commercially reasonable efforts to provide Support and Maintenance to the Licensee during the Subscription Period pursuant to the terms of Exhibit A, which may be amended from time to time in accordance with the terms hereof.
6.2 If Licensee wishes to receive Professional Services, Licensee may request same from the Licensor in writing, and: (a) the Professional Services shall be charged according to the agreed Professional Services fees specified in the applicable Quotation (which may be an additional Quotation or an amendment or supplement to an existing Quotation) (the “Professional Services Fees”); (b) The Parties will enter into a Work Proposal (attached to and incorporated by reference in a Quotation) specifying the Professional Services to be performed and the Work Proposal Start Date; and (c) Licensee shall reasonably cooperate, at Licensee’s expense, with Licensor in the performance of the Professional Services and provide Licensor (as well as procure for Licensor the right to access and use), at Licensee’s expense, all information, materials, facilities, assistance and equipment in its possession that are reasonably requested by Licensor in the performance thereof.
For any Work Proposal to be valid, the Quotation to which such Work Proposal is attached must be previously approved in writing by both Parties. Prior to the commencement of the Professional Services specified in the Work Proposal, all Contract Fees due for payment by Licensee prior to the start date of the related Work Proposal, in accordance with the payment terms specified herein and in any Quotation, will have been paid in full. Professional Service Fees will be payable as invoiced by Licensor to Licensee and will constitute a part of the Contract Fees payable hereunder. To the extent of any conflict between the Work Proposal and the General Terms and conditions included in the Agreement, such General Terms and Conditions will prevail, unless and to the extent the Work Proposal expressly states otherwise.
6.3 The Licensor shall have the right, at its discretion, to cause any one or more of its subsidiaries or affiliates to perform any Support and Maintenance and/or Professional Services required hereunder, which performance shall be in accordance with and subject to the terms and provisions of the Agreement, and will be accepted here by Licensee as if it were done by Licensor.
7. Subscription Compliance Verification; Data Acquisition and Use
7.1 Licensor reserves the right to access and inspect electronically (which may be conducted by its representatives, including internal or external auditors) Licensee’s Software Platform installation, including, without limitation, Endpoint installation, and Licensee’s books, documents , facilities, computers, papers and records related to the Software Platform and the Agreement, to verify Licensee’s compliance with the provisions of the Agreement and to ensure that Licensee does not exceed the number of Endpoint installations that are commensurate with the Subscription Fees paid to Licensor during the relevant Subscription Period. Licensee agrees to permit the access contemplated in this Section 7.1. Licensor will be entitled to exercise its rights under this Section 7.1 once annually during the term of the Agreement upon ten (10) business days’ notice to Licensee (provided that Licensor may exercise such rights more often at its discretion, upon two (2) business days’ notice, while the Licensee is in default under the Agreement), and once annually for a period of five (5) years after the expiration or termination of the Agreement. Any inspection will be performed during Licensee’s normal business hours so as not to unreasonably interfere with Licensee’s business activities. If an inspection reveals that Licensee has underpaid fees due to Licensor, Licensor will invoice Licensee for such underpaid amounts based on Subscription Fees and other fees in effect at the time such audit or inspection is completed, plus late fees as specified above in Section 5.3, and Licensee will make prompt payment of such amounts. If such an inspection established that the Subscription Fees or other Contract Fees were underpaid, then Licensee also will pay the reasonable expenses associated with such inspection, together with the amount of the undue payment (and the interest on payment under Section 5.3).
8. Confidential Information
8.1 Recipient agrees not to use any Confidential Information except for the purposes of exercising the Recipient’s rights granted and performing the Recipient’s obligations under the Agreement. Unless expressly authorized by the Discloser, Recipient will not disclose any Confidential Information, except to its employees, directors, officers and consultants on a need-to-know basis and who are bound in writing by confidentiality obligations no less restrictive than those contained in the Agreement, provided that the Recipient will be responsible for any breach of confidentiality obligations by any of its employees, directors and consultants. Neither Party will disclose any of the terms of the Agreement to any third party without the other Party’s prior consent; provided, however, that Licensor may disclose (a) the Confidential Information of Discloser (i) in confidence to its accountants, lawyers , financial advisors, and actual and potential investors, or financing parties, bound by non-confidentiality obligations less restrictive than those contained in the Agreement, (ii) in connection with the enforcement of the Agreement or rights under the Agreement, or (iii) in confidence, in connection with an actual or proposed merger, acquisition, or similar transaction, exclusively for use in the due diligence investigation in connection with such transaction and (b) any Confidential Information of Licensor in its sole discretion.
8.2 Disclosure may also be made if required by applicable law or legal, governmental or other competent authority, provided that in such case the Discloser shall be notified sufficiently in advance of such requirement so that it may seek a protection order (or equivalent) with respect to such disclosure. Disclosure may also be made to arbitrators in any dispute resolution process under Section 15.7, and the Discloser may seek a protective undertaking from such arbitrators.
8.3 Recipient agrees that it will take all reasonable measures to protect the secrecy of and prevent the disclosure or use of Confidential Information not authorized under the Agreement, employing at least the highest degree of care it uses to protect its own confidential information of a nature similar, but in no event less than a reasonable degree of care. Recipient agrees to notify the Discloser in writing of any misuse or misappropriation of Confidential Information that may come to its attention.
8.4 Recipient acknowledges and agrees that monetary damages would be inadequate to compensate Discloser for any violation by the Recipient, or any of the Recipient’s employees or consultants, of the provisions under this Section 8, and that, in addition to any other remedy that may be available at law, in equity or otherwise, Discloser shall have the right to enforce the Agreement and any of its provisions, seeking an injunction, specific performance and/or other equitable relief without being required to post a bond or other security or to provide proof of actual damages or the inability to establish damages.
8.5 Licensee may, from time to time provide suggestions, comments, complaints, or other feedback (“Feedback”) with respect to the Licensor Package, Professional Services, Confidential Information provided by Licensor and/or other products or services Licensor. Licensee agrees that all Feedback is and will be given entirely voluntarily. Feedback, even if designated as confidential by the Licensee, will not, without a separate written agreement, create any obligation of confidentiality for or upon Licensor. Licensee hereby grants Licensor a worldwide, irrevocable, non-exclusive, royalty-free, fully paid, perpetual, sub-licensable and transferable license to use, disclose, reproduce, distribute, publicly display, exploit and prepare derivative works of the Feedback or any part thereof, and Licensee waives any moral rights in the Feedback, to the extent permitted by law.
9. Licensee’s Consent to Collect Personal Data
10. Warranties and Disclaimer
10.1 Licensor warrants only that during the Subscription Period, the Software Platform will perform, in all material respects, in accordance with the Specifications. Licensee’s exclusive remedy and Licensor’s entire liability under this limited warranty will be, as determined by Licensor, for Licensor (i) to replace the non-compliant component of the Software Platform free of charge, (ii) repair free of charge, in accordance with Licensor’s Support and Maintenance obligations specified in Exhibit A, the non-conforming component of the Software Platform so that it performs, in all material respects, in accordance with the Specifications; or (iii) reimburse Licensee on a pro-rata basis the Subscription Fees (for the grant of the license to the Software Platform hereunder for the applicable Subscription Period) paid in respect of non-conforming component of the Software Platform, which payment, if elected by Licensor, shall be Licensee’s only and exclusive remedy and Licensor’s exclusive and exclusive liability in relation to such non-conformity.
10.2 Licensor warrants that all Professional Services (as applicable) will be performed in a professional and workmanlike manner.
10.3 The warranties specified in Sections 10.1 and 10.2 above do not cover liability or repair for damages, defects or service failures that are caused by (1) actions with respect to the Software Platform by any non-Licensor personnel which were not approved by Licensor, (2) alteration or repair or modification of the Software Platform, without Licensor’s prior written approval, (3) the combination or integration of the Software Platform with other products, including, but not limited to, any of Licensee’s systems, except in accordance with the Specifications, (4) failure of Licensee or its Users to install the latest version of the Software Platform, (5) failure to follow Licensor’s installation, operation or maintenance instructions, (6) use of Software platform in violation of Specifications or Licensor’s instructions, or subjection of the Software Platform to misuse, neglect, accident or abuse, (7) negligence or willful misconduct by Licensee or Users, or (8) any factor beyond Licensor’s control.
10.4 THE WARRANTY SET FORTH IN THIS SECTION CONSTITUTES THE ONLY WARRANTY WITH REGARD TO THE LICENSOR PACKAGE, SUPPORT AND MAINTENANCE OBLIGATIONS, AND PROFESSIONAL SERVICES. LICENSOR MAKES AND LICENSEE RECEIVES NO OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, OR STATUATORY WITH REPSECT TO THE LICENSOR PACKAGE, SUPPORT AND MAINTENANCE OBLIGATIONS, AND PROFESSIONAL SERVICES. Licensor expressly disclaims any and all promises, representations and warranties, express, implied, or statutory, including, without limitation, warranties of non-infringement, title, merchantability, fitness for a particular purpose, error-free operation, or non-intrusion due to hacking or other similar means of unauthorized access, to the fullest extent permitted by applicable law.
11. LIMITATIONS ON LIABILITY
In no event will Licensor be liable for any incidental, indirect, punitive, exemplary, special or consequential damages, or for the costs of procurement of substitute products or services, lost profits, loss of business or business opportunities, loss of goodwill, reputational damages, work stoppage, business interruption, or revenues of any kind, or for lost data, damage to other software, computer failure or malfunction or downtime. LICENSOR’S TOTAL AND CUMULATIVE LIABILITY FOR ALL CLAIMS UNDER THE AGREEEMENT, OR FOR BREACH OF THE AGREEMENT, INCLUDING WITHOUT LIMITATION THOSE RELATING TO THE LICENSOR PACKAGE, SUPPORT AND MAINTENANCE AND PROFESSIONAL SERVICES, HOWEVER CAUSED AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, SHALL IN NO EVENT EXCEED 100% OF THE AGGREGATE AMOUNT RECEIVED BY LICENSOR FROM LICENSEE UNDER THE AGREEMENT AS SUBSCRIPTION FEES DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. The limitations set forth in this Section 11 shall apply even if Licensor and its related parties have been advised of the possibility of such damages, and notwithstanding any failure of essential purpose of any limited remedy.
12.1 Licensor agrees to defend Licensee from and against any claim or suit initiated by a third party alleging that the Software Platform infringes a third party’s patent rights (a “Claim“), and to pay Licensee for all damages, costs and expenses (including reasonable attorneys’ fees) finally awarded against it by a court of competent jurisdiction or in a settlement agreement entered into in accordance with the provisions of the Agreement in connection thereto; provided that (1) Licensee will have given the Licensor, as soon as possible, written notice of such Claim; (2) Licensee will reasonably cooperate with Licensor in the defense and settlement thereof at Licensor’s expense; and (3) Licensor will have sole control of the defense of such Claim and the settlement or compromise thereof.
12.2 Licensor’s obligations specified in Section 12.1 above will not apply to the extent that the infringement arises: (i) from the use of the Software Platform for a purpose for which it was not intended, (ii) as a result of the use of the Software Platform not in compliance with its Documentation, (iii) from the combination or integration of the Software Platform with other products, including, but not limited to, any systems of the Licensee, except in accordance with the Specifications, (iv) in connection with any modified version of the Software Platform, (v) in connection with the use of a version of the Software Platform that is more than one version prior to the then-current version (if use of the then-current version would not have caused the infringement) or (vi) from use of the Licensor Package or any portion thereof by a User not authorized for such use hereunder.
12.3 In the event that an injunction is obtained or is likely to be obtained against Licensor’s use or distribution of the Software Platform arising from a Claim, or if Licensor anticipates that there is a likelihood of a Claim, Licensor may, in its sole discretion, (a) procure for Licensee the right to continue using the Software Platform; or (b) replace or modify the Software Platform so that it no longer infringes, provided the utility or performance of the Software Platform is not materially and adversely affected by such replacement or modification, or (c) where Licensor determines, in its sole discretion, that neither option under foregoing clauses (a) or (b) is commercially feasible, to terminate the Agreement and call back the Software Platform, and/or to reimburse Licensee for a pro-rata portion of any pre-paid, unused Subscription Fees paid under the Agreement.
12.4 The remedies set forth in this Section 12 establish Licensor’s entire obligation and Licensee’s exclusive and entire remedy with respect to the infringement, claims of infringement of any intellectual property rights and other claims, including, but not limited to, Claims for the Platform Software and/or the Licensor Package or Professional Services purchased under the Agreement.
13. Term and Termination
13.1 The term of the Agreement will begin on the Start Date (or the start date of the Free Trial, as applicable) and continue in full force and effect, provided that there is an active Subscription Period (including any Renewal Subscription Period) under the terms of any Quotation, subject to early termination as provided in this Section 13. Any renewal subscription period or renewal subscription periods specified in a Quotation will be subject to Section 5.1 of this agreement. Any Renewal Subscription Period that is not specified in a Quotation as an automatic renewal can only occur with the mutual written consent of both Parties through a signed Quotation.
13.2 Unless otherwise set forth in the applicable Quotation, either Party may terminate the Agreement as follows:
(a) In the case of a monthly Subscription Period, by written notice at any time, given that the Licensee agrees to pay all fees due (per Section 5.2) for the complete billing period in which notice was given (and shall maintain the right to use the Software Platform through the end of the billing period in which notice was given).
(b) In the case of an annual Subscription Period or any annual Renewal Subscription Period, to avoid automatic renewal, upon at least thirty (30) days’ written notice before the end of the applicable Subscription Period. For the avoidance of doubt, after giving notice, Licensee remains responsible for all Contract Fees through the end of the then-current annual Subscription Period (or annual Renewal Subscription Period).
13.3 Notwithstanding anything contained herein to the contrary, either Party may terminate the Agreement by written notice to the other Party if the other Party breaches any material obligation hereunder (other than payment obligation of Licensee), which breach remains uncured for a period of thirty (30) days after receipt by the breaching Party of written notification of the breach. Licensee’s breach of any payment obligation hereunder constitutes a default on the date the payment is due. In addition, the Licensor may immediately terminate this Agreement if Licensee violates the provisions of Sections 3, 4 or 8. In any such case, no Contract Fees paid hereunder, or payable in connection with any automatic renewal periods, shall be subject to refund or credit in whole or in part in connection with any such termination, nor will such termination relieve Licensee from its obligations to make all payments due hereunder (including the total amount of the Contract Fees for any automatic renewal Subscription Periods determined in accordance with Section 5 hereof without regard to such earlier termination) without deduction, offset, setoff, counterclaim or reduction, recoupment or other charge.
13.4 In addition to the foregoing, either Party may immediately terminate the Agreement by written notice to the other if (i) the other party ceases to do business or becomes insolvent, (ii) upon institution by the other Party of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of debt, (iii) on the institution of such proceedings against the other Party, which are not dismissed or otherwise resolved in favor of such Party within sixty (60) days thereafter, or (iv) upon the other Party making a general assignment for the benefit of creditors. In any event, no Contract Fees paid hereunder, or payable in connection with any automatic renewal periods, will be subject to a refund or credit in whole or in part in connection with any such termination, nor relieve Licensee of its obligations to make all payments due hereunder (including the total amount of the Contract Fees for any automatic renewal Subscription Periods determined in accordance with Section 5 hereof without regard to such earlier termination) without deduction, offset, setoff, counterclaim or reduction, recoupment, or other charge.
13.5 Upon the termination or expiration of the Agreement for any reason (i) Licensee immediately will cease to use the Software Platform and will delete the Licensor Package from Licensee’s systems, (ii) all rights of Licensee hereunder immediately will terminate and the Licensor will have no liability to Licensee in connection herewith, (iii) Licensee will pay all amounts due to Licensor but unpaid hereunder (including with respect to automatic renewal Subscription Periods determined in accordance with Section 5 of this document without regard to such earlier termination), and (iv) Licensee will return to Licensor (or certify destroyed) all Confidential Information, at Licensee’s expense.
13.6 The Sections 1 (Definitions), 3 (Restrictions), 4 (title), 5 (Quotations, Contract Fees, Payment Terms, Taxes and Late Payments), 7 (Subscription Compliance Verification), 8 (Confidential Information), 10.3 (Warranties and Disclaimer), 11 (Limitations on Liability), 12 (Indemnification), 13.4-13.5 (Term and Termination) and 15 (Miscellaneous), and all payment obligations incurred prior to termination or expiration of the Agreement (including payment obligations with respect to automatic renewal Subscription Periods determined in accordance with Section 5 hereof without considering such earlier termination), will survive such termination or expiration.
14. Disclaimer of Liability
14.1 The Software Platform is made available “as is” and claims regarding failures in the performance of presumed functions will not be accepted. Additionally, PSafe, its affiliates, licensors and partners expressly disclaim all warranties, representations and conditions of any kind, whether express or implied, including but not limited to (i) the uninterrupted, timely, secure, error-free functioning of the Software Platform in a manner that meets Licensee’s expectations, requirements or needs; (ii) the possibility of verification or correction, by PSafe, of any eventual defects related to the Software Platform; (iii) the adequacy of the Software Platform for a particular purpose of any kind; (iv) PSafe’s provisioning of updates, improvements or new versions of the Software Platform; (v) the technical capacity of the Software Platform to communicate operationally with other software or hardware; (vi) the absence of infringements of any third-party rights; and (vii) the integrity and/or loss of any data, including personal data; such that all downloads, installations and use of the Licensor Package and Software Platform is at Licensee’s sole discretion and risk. However, PSafe shall commit to undertake, at its sole discretion, reasonable commercial efforts to correct any errors that may occur in the main functions of the Software Platform.
14.2 PSAFE, ITS AFFILIATES, LICENSORS AND OTHER PARTNERS DO NOT WARRANT THAT: (1) THE PROGRAMS OR SERVICES WILL MEET YOUR REQUIREMENTS; (2) THE USE OF THE PROGRAMS OR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PROGRAMS OR SERVICES WILL BE ACCURATE OR RELIABLE. In addition, considering that by using the Software Platform, Licensee may have access to materials hosted/stored by its Users, Licensee declares that it is aware that it is impossible for PSafe to monitor such materials, and therefore agrees and warrants that the access to such materials will be at its own and exclusive risk, including accepting sole responsibility for any losses and/or damages caused by possible incompatibilities, alterations, errors, file deletions, malfunctions and/or problems that may occur on its devices, hardware, software, systems, applications, files, functionality, code strings and other programs, including, but not limited to, antivirus programs and storage programs or services, as a result of use of the Software Platform or any modifications thereto by the Licensee.
14.3 Therefore, PSafe disclaims any and all liability for any damages, whether direct, consequential, indirect or similar, loss of goodwill, reputational damages, or loss of revenues, even if PSafe previously has been advised of the possibility of such damages as a result of Licensee’s actions or omissions.
14.4 Furthermore, in no event or circumstance shall PSafe be responsible for any error or malfunction caused by external elements to the Software Platform, including hardware or software, or be liable for any damage greater than any amount paid, where applicable, by the Licensee for the use of the Software Platform, even if the PSafe previously had been advised of the possibility of such damages. PSafe will also not undertake or be liable in cases where the Software Platform has been used in a manner other than that specified by PSafe, or in any other abusive, negligent or inappropriate manner (including, without limitation, its use outside the recommended environment) or by third parties other than Licensee, who will be responsible for any use by third parties and all resulting consequences.
14.5 PSafe is not responsible for and will not be responsible for any person, entity or third party in general, for any loss or loss presumably caused by the use or inability to use the Software Platform, directly or indirectly, including (without limitation) work interruptions, capital losses, indirect damages, and/or predicted revenue losses as a result of using the Software Platform.
14.6 The Software Platform may provide, or third parties may provide, search results or other links to other World Wide Web sites or other resources. As PSafe has no control over such sites and resources, the User acknowledges and agrees that PSafe is not responsible for the availability of such external sites or resources and does not endorse and is not responsible for any content, advertising, products, or other materials present or available from such sites or resources. The User acknowledges and agrees that PSafe will not be responsible, directly or indirectly, for any loss or damage eventually or allegedly caused by, or in connection with the use of, or reliance on, such content, goods or services available on, or through, such sites or resources, nor for the collection of User data or information by such sites or resources.
14.7 Passwords and Identity Management. The Licensee is solely responsible for the security of its passwords, PINs, patterns and/or fingerprints (“Password”) and for keeping safe its account with the Software Platform. Each user should keep safe his Passwords and/or encryption keys for his account on the Software Platform, under penalty of losing access to his Account. The Licensee is solely responsible for any activity that occurs on its account, including the possible use by third parties. In the event of any unauthorized use or access of the Licensee’s account, the same must be reported immediately to PSafe, which is not responsible and will not be responsible for any loss caused by unauthorized access and/or use of Licensee’s account. However, Licensee may be liable for any loss that PSafe and/or others may suffer as a result of unauthorized access and/or use of Licensee’s account. PSAFE DOES NOT HAVE ACCESS TO PASSWORDS AND CANNOT RECOVER ANY CRYPTOGRAPHIC DATA IF THE USER FORGETS THE ACCESS PASSWORD FOR ANY ACCESS AND/OR MANAGEMENT FUNCTION OF THE SOFTWARE PLATFORM.
14.8 Beta Products. THE BETA PRODUCTS (AND THE SERVICES OFFERED THROUGH SUCH BETA PRODUCTS) REPRESENT A PRE-RELEASE “BETA” VERSION OF SUCH PROGRAM THAT IS BEING MADE AVAILABLE BY PSAFE SOLELY FOR TESTING AND EVALUATION. THE BETA PRODUCTS ARE MADE AVAILABLE “AS IS” WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND PSAFE EXPRESSLY DISCLAIMS ALL SUCH WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SUCH BETA PRODUCTS ARE ACCESSED AT YOUR OWN RISK AND MAY BE MODIFIED OR DISCONTINUED AT PSAFE’S SOLE DISCRETION. You acknowledge and agree that: (a) a Beta Product is in development, not complete, and has not been commercially released for use; (b) a Beta Product may not be fully functional, and it is expected that a Beta Product may contain errors, design flaws or other problems, including problems that may adversely impact the operation of your existing Products and/or device(s); (c) a Beta Product may not be reliable during the time you are participating as a tester; (d) a Beta Product and its use may result in unexpected results, loss of data, or other unpredictable damage or loss to you; (e) PSafe is under no obligation to release a commercial version of a Beta Product; (f) PSafe has the right to unilaterally abandon development of a Beta Product at any time and without any obligation or liability to you or any third party. With respect to Beta Products, at the end of the applicable Beta test period, your use of the applicable Beta Product will expire, and any further use of that specific Beta Product is prohibited unless you upgrade to a commercial release by PSafe of a generally-available version of the specific Beta Product (if and to the extent made available by PSafe) and pay any applicable fees.
15.1 Notices. All notices and other communications that are delivered, required or permitted to be given under this Agreement (“Notices”) will be in writing (which may be in email form), will reference the Agreement, and will be addressed to the address of the Party (whether physical or in an email form) as set forth in this Agreement or corresponding Licensee account data, or to any other address that a Party provides as required by this Section 15.1. A Notice will be deemed given when (i) delivered personally; (ii) sent by facsimile or confirmed email, (iii) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one (1) day after deposit with a commercial overnight carrier for overnight delivery with written verification of the receipt.
15.2 Force Majeure. Neither Party will be responsible for any failure to perform its obligations (other than payment obligations) under the Agreement attributable in whole or in part to any cause beyond its reasonable control, including, but not limited to, acts of God, government actions, war, epidemics, pandemics, civil disturbance, insurrection, riots, terrorism, sabotage, labor shortages or disputes, failure or delay in delivery by suppliers or subcontractors, transportation difficulties, shortage of energy, raw materials or equipment, or the other Party’s fault or negligence or any other force majeure event (“Force Majeure”).
15.3 Authorization; Assignment. Each party represents that it has the full power and authority to enter into the Agreement and to convey the rights herein conveyed. Each party further represents that entering into the Agreement will not constitute a breach of any binding document of incorporation, agreement, contract, understanding and/or obligation of such Party. In addition, each of Licensee and Licensor represents that it is acting on its own behalf, and not as an agent for or on behalf of any third party, in entering into the Agreement, and further agrees that it cannot assign its rights or obligations under the Agreement otherwise than as provided under the Agreement, without the prior written consent of the other Party, except that Licensor will be entitled and authorized to assign, transfer or otherwise dispose from time to time: (a) all its rights and obligations in the event of (i) a merger (in which Licensor is not the surviving entity) or (ii) sale of all or substantially all of its shares or its assets, (b) any or all of its rights and obligations to a wholly-owned subsidiary of the Licensor, or (c) any or all of its rights to payments (and on a non-exclusive basis, its audit, indemnity and informational rights) hereunder. Licensee shall follow the reasonable instructions of Licensor with respect to the payment and performance of the rights assigned to any such assignees or transferees, and will deliver such documentation and confirmations and cooperate with Licensor as is reasonable requested in connection with the implementation thereof. Any assignment or transfer of the Agreement made in contravention of the terms hereof will be null and void. Subject to the foregoing, the Agreement shall be binding on and inure to the benefit of the Parties’ respective successors and permitted assigns.
15.4 No Third-Party Beneficiaries. The Agreement is intended solely for the benefit of the Parties. In no event will any third party have any rights in relation to the Agreement or any right to enforce the terms hereof, subject to Section 15.3.
15.5 Publicity. Notwithstanding Section 8 above, Licensor may state on its website, and may state in Licensor’s sales and investment and financing-oriented presentations, the fact that Licensee is a customer of Licensor for the Software Platform, and may use the Licensee’s registered trademark on Licensor’s Site.
15.6 Headings; No Additional Commitments; Amendment; Waiver.
(a) Any headings are for convenience only and will not be used in interpreting and construction of the Agreement.
(b) The Agreement (including, for the avoidance of doubt, the General Terms and Conditions, each Quotation, and any Work Proposal) constitutes the entire agreement between the Parties concerning the subject matter hereof and supersedes any previous agreements, understandings and arrangements relating to the license of the Software Platform to Licensee. Except as expressly set forth in the Agreement, Licensor has no obligation or commitment to provide Licensee or any of its users with any software, any service, any update, revision or new release of any software included in the Licensor Package, or any written materials not be contained in the documentation included in the Licensor Package.
(c) The Agreement may not be modified, amended, altered or supplemented except by a written agreement executed by both Parties; provided that no amendment will be required in connection with the start of any automatic renewal Subscription Period specified in any Quotation, and provided further that these General Terms and Conditions may be modified in any respect by Licensor subject to thirty (30) days’ advance notice of such modification and in the event that Licensee does not deliver a written objection to such proposed modification within that period, such modification shall be deemed to have been adopted by the Parties effective from and after the date of such notice to Licensee.
(d) If any of the provisions of the Agreement, or any parts thereof, are held to be invalid under any applicable law, the invalid part or provision will be replaced by a provision that accomplishes, as far as possible, the original purpose of such part or provision in a valid manner, and the balance of the Agreement will remain in full force and effect. Neither Party, by the mere lapse of time, without giving written notice thereof, will be deemed to have waived any breach by the other Party of any terms or provisions of the Agreement; and the waiver by either Party of any breach will not be construed as a waiver of subsequent breaches or a continuous waiver of such breach.
15.7 Governing Law and Venue; Dispute Resolution.
This Agreement is governed by the laws of the Federative Republic of Brazil, under the jurisdiction of the Central Court of the City of Rio de Janeiro, renouncing any other jurisdiction and without giving effect to any principles of conflicts of laws thereof, except that for all matters relating to its interpretation and enforcement, the Parties agree that an action, dispute, claim or controversy of any kind or in any way related to the Agreement (“Dispute“) must be resolved quickly, amicably, within ten (10) business days (which can be extended by mutual agreement) after the delivery of a written notice from one Party to the other, and, if it is not possible to reach a resolution, such dispute shall be settled through an online mediation platform as chosen and indicated by Licensor.
The Parties do not intend these procedures to supplant the routine handling of inquiries and requests, as applicable, for Support and Maintenance through informal contact with customer service representatives or other designated employees of the Parties. Throughout the dispute settlement process, each party will continue to fulfill its obligations under the Agreement unless it is terminated in accordance with its terms.
15.8 Independence of the Parties. The Parties at all times will be independent contractors with respect to each other and neither Party will purport to bind the other. No partnership, joint venture, agency, employer-employee relationship, or any other relationship between the Parties hereto is contemplated or created hereby.
15.9 U.S. Government Restricted Rights. Licensor provides the Software Platform, including the related software and technology, for end use of the federal government as “Commercial Item”, as that term is defined at 48 CFR §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation” as these terms are used in 48 CFR §12.212 or 48 CFR §227.7202. Consistent with 48 CFR §12.212 or 48 CFR §227.7202-1 through 227.7202-4, as applicable, the Software Platform and License Package, including the related software and technology, are provided to the end user with only those rights set forth under the terms and conditions of this Agreement. If a government agency has a need for rights not conveyed under these terms, it must negotiate with Licensor to determine if there are acceptable terms for the transfer of such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
15.10 Licensee acknowledges and accepts that PSafe may use legal procedures if Licensee does not comply with the conditions of this Agreement. PSafe reserves the right to automatically terminate this Agreement without prior notice if Licensee fails to comply with any term or condition set forth herein.
15.11 PSafe expressly retains all other rights it may have that are not granted herein to Licensee.
THESE GENERAL TERMS AND CONDITIONS ARE INCORPORATED BY REFERENCE IN ONE OR MORE QUOTATIONS EXECUTED BY THE PARTIES. BY EXECUTING A SUBCRIPTION VIA ANY SUCH QUOTATION, THE LICENSEE ACKNOWLEDGES AND AGREES TO BE BOUND BY THESE GENERAL TERMS AND CONDITIONS.
List of Attachments
Exhibit A: Support and Maintenance
Exhibit A – Support and Maintenance
“Error” means any failure of the Software Platform to conform to any material in relation to the Specifications.
“Error Correction” means a modification or addition that, when made or added to the Software Platform, brings the Software Platform into material compliance with the Specifications, or a procedure or routine that, when observed in the regular operation of the Software Platform, avoids the practical adverse effect of such non-compliance.
“Incident” means a real-time interaction with a Licensor support representative.
“Solution” means a temporary corrective action to restore the applicable Software Platform to operation or to lessen or avoid the effect of the Error; provided that such Solution does not materially impact Licensee’s normal operating status.
2. Scope of Support
Subject to the payment of the relevant Subscription Fees under the Quotation, during any Subscription Period, Licensor will provide the following support for the Software Platform for five named Licensee contacts:
Error Correction. Licensor will use commercially reasonable efforts to correct verifiable and reproducible errors reported to Licensor in accordance with Licensor’s standard reporting procedures, as will be in effect and notified from time to time. The Error Correction, when completed, may be provided in the form of a written Solution, consisting of sufficient programming and operation instructions to implement the Error Correction.
Email support. Licensor will maintain an email response system that allows Licensee via email to report problems and seek assistance in using the Software Platform. Currently, email support is only available to named contacts who wish to open an Incident via email@example.com. Licensor’s support representatives will respond to these questions using commercially reasonable efforts.
Updates. Licensor may, from time to time, issue updates to the Software Platform containing Error Corrections. Licensor will provide reasonable documentation to assist Licensee’s installation and operation of each new update. Because updates may be cumulative, application of an update may depend on all previous applicable updates.
Licensor will use commercially reasonable diligence to enforce a system of response time standards, based on the severity of the incidents / errors as follows:
|1 – Critical||Software Platform is down or there is a critical impact on Licensee’s business operation due to Error(s) in the Software Platform.|
|2 – Serious||Use of the Software Platform is severely degraded or significant aspects of the Licensee’s business operation are being negatively impacted by the Error(s) in the Software Platform.|
|3 – Low Impact||Error or loss of functionality in the Software Platform that results in a minor impact to Licensee’s business operation.|
|4 – Informational||No Error in the Software Platform. Licensee requires assistance with regard to the Software Platform’s technology, product capabilities, installation, and/or configuration.|
|Severity Level||Response Time||Error Correction Goal|
|1 – Critical||< 1 hour||7 business days|
|2 – Serious||< 4 hours||30 business days|
|3 – Low Impact||Within two (2) business days||Next major update|
|4 – Informational||As soon as practicable||As soon as practicable|
Licensor is not required to provide support when the relevant error or problem arises as a result of:
a. the misuse, improper use, or damage of the Software Platform or use thereof in an environment that is not in accordance with the Documentation;
b. any modifications to the Software Platform not made or authorized by Licensor;
c. the combination of the Software Platform with other programs or equipment not approved by Licensor;
d. any accident or disaster affecting the Software Platform, including fire, flood, lightning or vandalism, or any other event that is not under Licensor’s control; or
e. Errors in any version of the Software Platform other than the most recent version, provided that Licensor continues to support the last two immediately superseded versions.
Licensor will maintain trained personnel capable of providing the support set forth in the Agreement.
If the Documentation does not provide adequate or correct instructions in order to allow Licensee to make proper use of any feature or function of the Software Platform, then Licensee will so notify Licensor, who will correct the defect and provide Licensee with appropriate amendments to the Documentation.
6. Licensee’s Cooperation
Licensee must promptly notify Licensor after discovering any Error. In addition, after discovering an Error, Licensee agrees, if requested by Licensor, to submit to Licensor a listing of output and any other data that Licensor may require to reproduce the Error and the operating conditions under which the Error occurred or was discovered. In addition, Licensee is responsible for procuring, installing, and maintaining all equipment, telephone lines, communication interfaces, devices, and other hardware necessary to operate the Software Platform and to obtain maintenance and support services from Licensor. Licensor will not be responsible for delays caused by events or circumstances beyond its reasonable control.