CYB3R-X

 

MSSP AGREEMENT

Managed Security Services Provider Agreement

This Managed Security CLIENT Agreement (this “Agreement”) is made and entered into as of the date that CLIENT checks and agrees with the Terms and Conditions on the sign up page (the “Effective Date“), by and between CYB3R-X, a California Corporation, (“CYB3R-X”), and CLIENT (the “CLIENT”). CYB3R-X and CLIENT shall be referred to, collectively, as the “Parties” and each, a “Party“.

WHEREAS, CYB3R-X IS MANAGING A THREAT DETECTION, PREVENTION AND RESPONSE PLATFORM (THE “SERVICES”); AND

WHEREAS, CYB3R-X and CLIENT wish to enter into this Agreement whereby CYB3R-X will grant CLIENT a non-exclusive license to use CYB3R-X’s Services in CLIENT’s internal business purposes and outsourced Managed IT Services (the “Managed Security Services”), subject to the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the terms, conditions and covenants herein contained, the parties hereto agree as follows:

 

1. Preamble and Annexes

 

1.1 The preamble to this Agreement and the exhibits attached hereto constitute integral parts hereof. In the event of any inconsistency or discrepancy between the provisions of this Agreement and the provisions of the exhibits, the provisions of this Agreement shall prevail.

1.2 The headings of this Agreement have been inserted for convenience only and are to be ignored in any interpretation of the provisions hereof.

2. Appointment

 

2.1 Subject to the terms and conditions of this Agreement, CYB3R-X hereby grants CLIENT, during the term of this Agreement, a non-exclusive, non-transferable, limited license to use the Services for internal business purposes and also to deliver Managed Security Services and/or allow End Users to access and use the Services as part of a Managed Security Services, from CLIENT, in accordance with the terms and conditions of this Agreement. CLIENT’s appointment under this Section 2.1 only grants CLIENT the right to use the Services, and does not transfer any right, title or interest to any of the Services to CLIENT or its End Users.

For purposes hereof, the term “End User” shall mean a third-party entity which has purchased Managed Security Services from the CLIENT for the End User’s personal or internal business purposes only and not for further distribution or resale.

2.2 The Services shall be provided as part of the Managed Security Services pursuant to a written Software- as-a-Service subscription agreement (the “SaaS Agreement”) to be entered into solely between CLIENT and End User CYB3R-X shall not be a party to the SaaS Agreement, nor bound by its terms. CLIENT shall ensure that no SaaS Agreement will be inconsistent with any of the terms and conditions of this Agreement (such as, but not limited to, those provisions herein governing license rights, ownership rights, confidentiality, warranties, and liability). Without derogating from the generality of the foregoing, each SaaS Agreement must: (a) expressly state that the CYB3R-X licensing terms (or any other licensing terms purporting to be between CYB3R-X and the End User) are inapplicable and shall not bind or benefit CYB3R-X or End User; (b) include any license restrictions herein (or the substantive equivalent thereof) and state that CYB3R-X is an intended third-party beneficiary thereunder with the right to enforce such license restrictions against End User.

2.3 Subject to and in accordance with the provisions contained herein, CLIENT shall assume full responsibility for the execution of all terms of any agreement executed between CLIENT and any End User, including all installation, warranty and support obligations with respect to the Services.

2.4 CYB3R-X’s responsibility shall apply only to CLIENT and shall not be extended, expressly or by implication, to any other person or entity, including the End Users. CLIENT shall ensure in contracting with the End Users the effectiveness of this Section 2.4, disclaiming the liability and responsibility of CYB3R-X other than towards CLIENT.

3. CLIENT’s Responsibilities

 

3.1 During the term of this Agreement, CLIENT will, at CLIENT’s own cost and expense keep accurate records of all matters related to its performance of this Agreement; and, upon CYB3R-X’s request, provide CYB3R-X any information as CYB3R-X may reasonably require for supervisory and/or informational purposes.

3.2 CLIENT will hold itself out as an independent CLIENT of CYB3R-X that has no power to legally bind CYB3R-X.

3.3 CLIENT shall be fully responsible to obtain and provide for itself, at its cost, with any and all licenses, permits, certificates and all other documentation and information required for the promotion and sale of Services.

4. Enhancements

 

4.1 During the term of this Agreement, CYB3R-X may, in its sole discretion, develop new enhancements, modifications and versions of the Services, including new functions and bug fixes, as CYB3R-X may deem necessary. All such enhancements, modifications and versions shall be included within the definition of “Services” for purposes of this Agreement and therefore within the scope of this Agreement.

4.2 Subject to the terms hereof (including payment of all applicable fees), CYB3R-X agrees to provide CLIENT with any updates, new releases or new versions of the Services as such updates, new releases or new versions become available.

5. Term and Termination

 

5.1 The term of this Agreement shall commence on the Effective Date and shall continue for a period of 1 (one) year thereafter (the “Initial Term”), unless previously terminated pursuant to this After the Initial Term, this Agreement shall be automatically renewed for successive extension terms of 1 (one) year each (the “Extension Term(s)”, and together with the Initial Term, the “Term”), unless either Party notifies the other in writing, at least 30 (thirty) days prior to the end of the Initial Term or any Extension Term, of its decision not to renew this Agreement as aforesaid.

5.2 Notwithstanding anything to the contrary herein, and without derogating from any other right or remedy available to the Parties hereunder or at law, either Party shall be entitled to terminate this Agreement immediately upon written notice to the other Party, in the event that the other Party: (i) enters into liquidation or bankruptcy proceedings, whether voluntary or compulsory, makes a general arrangement with its creditors, or ceases to conduct its business in the ordinary course; or (ii) fails to fulfill any of its obligations or undertakings herein and does not rectify such failure within 14 (fourteen) days after receiving a written demand to do so.

5.3 Additionally, and without derogating from any other right or remedy available to CYB3R-X hereunder or at law, CYB3R-X shall be entitled to terminate this Agreement immediately, upon providing the CLIENT with a written notice to that effect, for any reason.

5.4 The following shall apply with respect to the expiration or termination of this Agreement, howsoever arising:

5.4.1 In no event shall any termination of this Agreement, in itself, affect any rights or obligations accrued or existing at the time of such termination or arising out of such termination, nor shall CLIENT be entitled to any compensation for loss of goodwill, customers, profits, expenses or for any other loss or damage arising as a result of the expiration or termination of this Agreement howsoever arising.

5.4.2 CLIENT shall immediately cease all use of the Services and all rights afforded hereunder to the CLIENT shall expire, ipso facto, upon such termination or expiration.

6. Prices and Terms of Payment

6.1 For the Services purchased hereunder by CLIENT from CYB3R-X, CLIENT shall pay to CYB3R-X such prices under such payments terms as shall be agreed by CLIENT and CYB3R-X on a case-by-case basis (which in certain cases, may include per-payment or advances), and agreed upon and set forth in a separate purchase order. Unless agreed otherwise in writing, on a case-by-case basis, all payments by CLIENT shall be made to CYB3R-X within 10 days from the date of the invoice issued by CYB3R-X.

6.2 CLIENT shall have the discretion to determine the final sale price of the Managed Security Services to the End Users.

6.3 Any amounts due to CYB3R-X which are not paid on their due date shall bear interest from said due date until the date of actual payment, at the monthly rate of 1.5% (one and a half percent).

6.4 CLIENT shall have sole responsibility for establishing and collecting all fees and charges to End Users for the sale of the Services.

6.5 Unless otherwise stated, CYB3R-X’s fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added tax. CLIENT is responsible for paying all taxes associated with its purchases hereunder, excluding taxes based on CYB3R-X’s net CLIENT may withhold from payment under this Agreement any income or taxes or other governmental charges that are required to be withheld under applicable laws provided that CLIENT shall reasonably assist CYB3R-X in obtaining any relevant exemptions from such deductions.

7. Support and Maintenance

CLIENT shall provide the End Users with support and maintenance services. It is hereby clarified that under no circumstances shall CYB3R-X be obligated to directly support any End User.

8. Reporting Obligations of CLIENT

CLIENT shall promptly bring to CYB3R-X’s attention any information received by it or that otherwise comes to its knowledge which is likely to be of interest to CYB3R-X in connection with the Services or their use, including improper use of the Services, competition, infringements of CYB3R-X’s intellectual property rights, complaints with respect to the Services, etc.

9. Limitation of Liability and Indemnification

9.1 The Parties hereby acknowledge that each party shall bear their own risk of profit or loss and that neither party assumes such, in part or in whole, for the other. Neither party shall guarantee the revenues of the other, nor will any party be protected from loss. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED ON AN “AS IS” BASES, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR CYB3R-X DOES NOT WARRANT THAT THE SERVICE WILL MEET SERVICE PROVIDER’S REQUIREMENTS OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CYB3R-X HAS NOT MADE AND HEREBY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SERVICES, EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES AS TO NONINFRINGEMENT, QUALITY, SUITABILITY, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, SATISFACTORY QUALITY, THAT ANY DATA STORED AS PART OF THE SERVICES WILL BE SECURE OR OTHERWISE NOT LOST OR DAMAGED, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.

CLIENT UNDERSTANDS THAT USE OF THE SERVICES DOES NOT CONSTITUTE ANY GUARANTEE OR ASSURANCE THAT SECURITY OF END USERS SYSTEMS, NETWORKS AND ASSETS CANNOT BE BREACHED OR ARE NOT AT RISK.

9.2 IN NO EVENT SHALL CYB3R-X OR ANYONE ON ITS BEHALF BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY OF THE FOLLOWING :

A. INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND;

B. LOSS OF BUSINESS OR PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION;

C. THE COST OF PROCURING SUBSTITUTE GOODS OR SERVICES; AND/OR

D. LOSS OR DAMAGES TO DATA, REPUTATION OR GOODWILL

ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND THE SERVICES REGARDLESS OF THE CAUSE AND WHETHER ARISING IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF CYB3R-X HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, UNDER NO CIRCUMSTANCES WILL CYB3R-X’S TOTAL AND AGGREGATE LIABILITY FROM ALL CAUSES OF ACTION OF ANY KIND, INCLUDING WITHOUT LIMITATION CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, BREACH OF WARRANTY, OR OTHERWISE, ARISING OUT OF OR RELATED TO THIS AGREEMENT, EXCEED THE FEES ACTUALLY PAID BY CLIENT TO CYB3R-X HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING SUCH CLAIM.

9.3 Without derogating from the above, CLIENT will defend and indemnify CYB3R-X against and hold CYB3R-X harmless from, any and all claims, damages, and expenses (including reasonable attorneys’ fees and costs of litigation) pursuant to a third party claim arising from any improper acts, or omissions by CLIENT and/or any breach relating to its activities in connection with this Agreement; arising from the infringement of intellectual property rights while Service Provider provides the Managed Security Services; and/or arising from CLIENT’s misrepresentations relating to CYB3R-X and/or the Services. CLIENT shall be solely responsible for any claims, warranties, or representations made by CLIENT or CLIENT’s employees or agents including without limitations, any that differ from the warranty provided by CYB3R-X in this Agreement and/or in the documentation provided as part of the Services.

10. Confidentiality

10.1 CLIENT recognizes and agrees that any and all information with respect to CYB3R-X, its business, activities, operations, products and technology, revealed or exposed to it by CYB3R-X, or which comes to CLIENT’s knowledge over the course of its activities hereunder, including without limitation any knowhow, technical data, engineering and technical information, financial and commercial information, customer lists, etc. (“Confidential Information”) is of a confidential and proprietary nature and shall remain at all times the property of CYB3R-X. CLIENT agrees and undertakes, during the Term of this Agreement and at all times hereafter, to keep in strict confidence and not disclose, reproduce, distribute, or transmit any Confidential Information or allow same to be disclosed to any third party, or to make any use of Confidential Information other than for the purposes of this Agreement. Service Provider will take all reasonable precautions necessary to safeguard the confidentiality of such Confidential Information. Service Provider will implement reasonable security measures to protect such Confidential Information at a level no less restrictive than used to protect its own confidential information.

10.2 Upon the first to occur of CYB3R-X’s request, or the termination or expiration of this Agreement, CLIENT shall return to CYB3R-X any and all documents and other tangible materials containing Confidential Information, and shall erase or destroy any computer or data files containing such Confidential Information, such that no copies or samples of Confidential Information shall remain with CLIENT.

10.3 The provisions of this Section 10 shall continue in full force and effect notwithstanding the termination or expiration of this Agreement howsoever arising.

11. Proprietary Rights

11.1 CLIENT acknowledges and agrees that CYB3R-X owns all rights, title and interest in or to: (i) the Services and in the underlying software including but not limited to all updates, enhancements, modifications, new releases and new versions; and (iii) any intellectual property rights, patents, know- how, trade secrets, copyright and other proprietary rights, whether registered or not, owned and/or otherwise used by CYB3R-X and all goodwill related thereto with respect to the Services (the “IP Rights”). CLIENT acknowledges and agrees that: (i) the IP Rights may not be exploited, reproduced or used by the CLIENT except as expressly permitted in this Agreement; and (ii) the CLIENT shall not have or acquire any right, title or interest in, or otherwise become entitled to, any IP Rights, including without limitation by taking delivery of, making payment for, distributing or selling or otherwise using the Services or performing its obligations under this Agreement.

11.2 CLIENT undertakes not to, and to not permit any third party to, copy, duplicate, produce, manufacture, improve, modify, or alter the Services or any part thereof in any manner whatsoever, or to assist, directly or indirectly, any other entity in such In addition, CLIENT shall not, and shall not permit any third party to reverse engineer the Services, or otherwise attempt to reconstruct or discover any underlying ideas or any portion thereof by any means whatsoever. In the event CLIENT obtains knowledge that a third party is attempting or may attempt to take any of the foregoing actions prohibited by this Section 11.2, CLIENT shall so notify CYB3R-X in writing immediately.

11.3 The provisions of this Section 11 shall continue in full force and effect notwithstanding the termination or expiration of this Agreement howsoever arising.

12. The Parties’ Relationship – Independent Contractors

CYB3R-X and CLIENT are independent contractors, and nothing in this agreement shall be construed to create a partnership, joint venture, agency, or employment relationship between the parties hereto. Neither party shall have the power or authority to enter into agreements or obligations of any kind on behalf of the other and shall have no power or authority to bind or obligate the other in any manner. In addition, neither party shall, at any time, represent or lead any third party to believe that it has the power or authority to bind the other.

13. Assignment & Sub-Contractors

13.1 CLIENT shall not transfer, assign or pledge in any manner whatsoever any of its rights or obligations under this Agreement, without CYB3R-X’s prior written consent, which consent shall not be unreasonably withheld.

13.2 Without derogating from the aforesaid, CLIENT may not appoint any sub-distributors, CLIENTs or agents for the distribution, marketing and selling of the Services without the prior written consent of CYB3R-X. Such consent, to the extent given, shall not relieve CLIENT from any of its undertakings herein and CLIENT shall remain liable for any breach of the provisions hereof by any person or entity acting on its behalf.

13.3 CYB3R-X may assign this Agreement or any of its rights hereunder in its own discretion without CLIENT consent or permission.

14. Miscellaneous

14.1 Entire Agreement. This Agreement together with the exhibits hereto contains the entire agreement between the Parties hereto with respect to the subject matter hereof, and supersedes all prior agreements, arrangements and understandings, written or oral, relating to the subject matter hereof, if any.

14.2 Severability. In the event that any condition, stipulation or provision hereunder is held, by a court of competent jurisdiction or other authority, to be invalid, illegal or unenforceable, for any reason whatsoever, all the remaining conditions, stipulations and provisions contained herein shall remain in full force and effect and shall be binding on the Parties without any change except where such result would be unjustified under the Upon such determination that any term or other provision is invalid, illegal or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

14.3 Publicity. It is agreed that CYB3R-X may identify CLIENT as a user or distributor of CYB3R-X’s services in advertisements and promotional literature.

14.4 Non-Disparagement. CLIENT will not disparage CYB3R-X or CYB3R-X’s performance or otherwise take any action which could reasonably be expected to adversely affect CYB3R-X’s personal or professional reputation. Similarly, CYB3R-X will not disparage CLIENT or any of its directors, partners, officers, agents or Executives or otherwise take any action which could reasonably be expected to adversely affect the personal or professional reputation of CLIENT or any of its directors, officers, agents or employees.

14.5 Notices. All written notices to be given by one Party to the other hereunder shall be in writing and shall be sent to the Parties’ respective addresses indicated in the preamble, or to such other e-mail address, post address or facsimile number as a Party may thereafter notify the other Party in Notices addressed as aforesaid will be deemed delivered to the addressee upon the earlier of their actual receipt or: (i) on the next business day following the day of delivery or transmission, if delivered by hand or transmitted by e-mail or facsimile, and confirmed by return e-mail receipt confirmation or written facsimile transmission report if transmitted by e-mail or facsimile; or (ii) within five (5) business days after being posted, if sent by registered mail, postage prepaid.

14.6 Amendments. This Agreement may be amended, modified, superseded, renewed or extended, only by a written instrument executed by both Parties hereto.

14.7 Interpretation. The captions and titles in this Agreement are intended solely for convenience and will have no significance in the construction or interpretation of this Agreement. All references to a “Section” of this Agreement shall be deemed to include all subSections which form a part of such Section.

14.8 Waiver. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. No waiver by any Party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

14.9 Governing Law and Forum. The validity, performance and construction of this Agreement shall be governed by and interpreted in accordance with the internal laws of the State of California. The parties hereby irrevocably consent to the exclusive jurisdiction of the competent courts in the County of Orange, California, USA, England to adjudicate all disputes arising from or in connection with this Agreement, to the exclusion of any other court; however, CYB3R-X shall retain the right to institute proceedings, including interlocutory and/or injunctive relief, in any other territory.

14.10 United Nations Convention on Sale of Goods. The Parties agree that the 1980 – United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

14.11 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

EULA

End User License Agreement

  1. LICENSE GRANT / PURCHASE ORDERS

During the Term (as defined in Section 2.1) and subject to the terms and conditions of this Agreement (as defined below), Cynet shall provide to Customer (as defined in the applicable Purchase Order) a limited, non-exclusive, non-transferable license to use and access (i) the Cynet 360 solution (the “Services”) for Customer applications, hardware, firmware, computer systems (virtual or standalone), data, user accounts, network environment (the “Systems”) (as that term is defined in Section 3.1) set forth in a Purchase Order, (ii) any online information, product descriptions, technical specifications, manuals and materials made available to the Customer, relating to the use of the Services (the “Documentation”), or (iii) any training materials and handouts provided to Customer, including, but not limited to, documents, data, drawings, models, code, applications and reports, and associated software and materials, including any modifications or improvements thereof, that may include third party materials licensed to Cynet (the “Materials”), each as described in an applicable Purchase Order. For the purposes of this Agreement, a “Purchase Order” shall be a duly executed quote with corresponding purchase order, statement of work, order form or Purchase Order, etc. A Purchase Order is an integral part of this Agreement. The license grant in this Section 1 for the Materials is provided solely for Customer’s internal use to further expand and improve the knowledge base of its employees who have a need to know such information, and expressly prohibits use of the Materials for production or commercial purposes.

Unless otherwise specified in the Purchase Order, the terms of this General Terms of Contract for Services will govern the Purchase Order (together herein referred to as the “Agreement”). This Agreement shall take precedence over any other agreements, contracts or general terms that Customer may have entered into with Cynet.

  1. TERM AND TERMINATION
  • This Agreement shall commence upon the Effective Date and shall continue for one (1) year, or such longer period of time as set forth in such Purchase Order (the “Initial Term”). Unless otherwise specified in the Purchase Order, this Agreement shall automatically renew for additional, successive one (1) year terms unless either party notifies the other party in writing of its intent not to renew the Agreement at least thirty (30) days prior to the end of the then current term. The Initial Term and each renewal pursuant to this Section 2.1 shall together be referred to herein as the “Term”.
  • Either party may terminate this Agreement immediately if the other party fails to cure a material breach within thirty (30) days after receipt of written notice thereof.
  • Effect of Termination. Following the termination or non-renewal of this Agreement, Cynet will cease providing the Services and will ensure that all data from the Customer is deleted from the system. Upon termination or non-renewal, Customer shall pay all undisputed charges within thirty days of Customer’s receipt of invoice.
  1. SERVICE LEVEL AGREEMENT
  • Cynet Requirements. The Cynet SOC is a 24/7/365 off-site secured location comprised of experiences security specialists. SOC personnel are trained to actively engage Customers whose Cynet 360 installation has detected a threat within the Customer’s organization.
  • The Cynet SOC commits to use reasonable commercial efforts to provide to the Customer the following:
    • The Cynet SOC will be operational 24/7/365 days a year.
    • Cynet SOC staff will monitor for alerts from the Customer’s Cynet 360 installation. SOC staff will contact the Customer’s points of contact via approved communication channels, based on the Alert Severity Matrix below.
    • Cynet SOC staff will be available to the Customer to provide recommended remediation steps for the detected threat
    • The SOC service will be in accordance with the CyOps SLA, available on the customer portal
  • Customer Requirements. The Customer’s responsibilities and/or requirements in support of this Agreement include:
    • Provide Cynet with points of contact in the event of a threat detection
    • Reasonable availability of customer representatives when the SOC has detected a security incident
  • Cynet shall not be responsible for any failure or deficiency of Services availability to the extent caused by or associated with: (i) a Force Majeure Event (as defined in Section 11.8); (ii) regularly scheduled or emergency maintenance and upgrades (including, but not limited to the system upgrades described in Section 3.2 above); (iii) any causes attributable to Customer or its contractors, (iv) software or hardware not provided or controlled by Cynet; and (v) outages elsewhere on the Internet, including but not limited to interruptions at any Customer or third party data center or internet service provider that hinder Customer’s access to the Services.
  1. PROPRIETARY RIGHTS
  • Customer hereby grants Cynet the right to access, monitor, and assess the Customer Systems for the purpose of performing the Services on behalf of Customer. Customer acknowledges and agrees that Cynet’s access and performance of Services, is not subject to any “Terms of Use” or other terms or conditions that may be posted on, linked or otherwise provided with the Customer Systems. Customer represents that it is either the owner of the all Systems or has the authority to permit Cynet to provide the Services for the Systems. Customer shall provide Cynet adequate written evidence thereof upon Cynet’s request. In the event any of the Systems are owned by a third party, Customer shall indemnify Cynet for any claims against Cynet that arise from Cynet accessing such Systems to provide the Services.
  • Customer shall not: (a) copy or otherwise reproduce, whether in whole or in part, the Services (or software associated therewith), Documentation, Training or Training Materials; (b) modify or create any derivative work of the Services (or software associated therewith), Documentation, Training or Training Materials; (c) sell, rent, loan, license, sublicense, distribute, assign or otherwise transfer the Services (or software associated therewith), Documentation, Training or Training Materials; (d) cause or permit the disassembly, decompilation or reverse engineering of the Services (or software associated therewith), Documentation, Training or Training Materials or otherwise attempt to gain access to the source code of the Services (or software associated therewith); or (e) cause or permit any third party to do any of the foregoing.
  • Reservation of Rights. Each party reserves all rights not expressly granted in this Agreement and no licenses are granted by either party to the other party under this Agreement except as expressly stated in this paragraph, whether by implication, estoppel or otherwise. Cynet or its licensors own and retain all right, title and interest (including all intellectual property rights) in and to the Services, Documentation, and associated software, including any modifications or improvements thereof. Subject to the terms of the Agreement, Customer shall own all right, title and interest to all data reports that contain the results of the monitoring and discovery performed by the Services (the “Reports”).
  1. CUSTOMER RESPONSIBILITIES

Customer acknowledges and agrees that (i) it is Customer’s sole responsibility (at its discretion) to update and maintain the Systems, including without limitation, fixing any security vulnerability revealed by the Services and Reports, (ii) the Reports and Services are not guaranteed by Cynet to identify and/or contain any and/or all vulnerabilities, incidents, issues of concern, indicators of compromise, malware, risk to confidentiality of information, Advanced Persistent Threats, or activity and (iii) it is Customer’s sole responsibility to test, vet and confirm that any remedial measures contained in the Reports are appropriate for Customer’s purposes. Customer further acknowledges and agrees that Customer’s use of the Services does not render or guarantee that the Systems will be invulnerable or free from unauthorized access, use, or disclosure of information. Customer further acknowledges and agrees that Customer’s use of the Services starts on the Effective Date and the Customer is responsible for providing all configuration data (host names, user accounts, etc.) needed to perform the Services. Failure to provide configuration data does not release Customer from any responsibility in the Agreement. Customer acknowledges and agrees that Customer’s and its users’ use of the Services may be 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 for its access and use of the Services, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing. Cynet 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 services.

  1. PAYMENT TERMS

Cynet will invoice the Customer for the fees set forth in an applicable Purchase Order immediately following the effective date of such Purchase Order and Customer shall pay the fees within the agreed period as set forth on such Purchase Order.

If Customer is purchasing the Services through an authorized distributor, MSSP or reseller of Cynet (“Partner”), then: (a) instead of paying Cynet, Customer will pay the applicable amounts to the Partner, as agreed between Customer and the Partner, and Cynet may suspend or terminate Customer’s Services if Cynet does not receive the corresponding payment from the Partner; (b) Customer’s Services and related order details will be as stated in the Purchase Order placed with Cynet by the Partner on Customer’s behalf, and Partner is responsible for the accuracy of any such Purchase Order as communicated to Cynet.

  1. LIMITATION OF LIABILITY

IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR ANY LOST OPPORTUNITY, DATA OR PROFITS, OR THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF THIS AGREEMENT, OR ANY EXHIBIT, PURCHASE ORDER, SCHEDULE OR ADDENDUM THERETO, UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY (INCLUDING NEGLIGENCE OR OTHER TORT), WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY HEREUNDER FOR ANY CAUSE OF ACTION OR THEORY OF LIABILITY EXCEED THE AMOUNTS PAID BY CUSTOMER TO CYNET HEREUNDER DURING THE PRECEDING TWELVE (12) MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. THESE LIMITATIONS ARE AN ESSENTIAL BASIS OF THE BARGAIN AND SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY.

  1. CONFIDENTIALITY
  • Definition of Confidential Information. By virtue of this Agreement, the parties may have access to each other’s Confidential Information. The party disclosing Confidential Information (as defined below) hereunder is referred to herein as the “Disclosing Party”. The party receiving such Confidential Information is referred to herein as the “Receiving Party”. “Confidential Information,” as used in this Agreement, means any written, machine-reproducible and/or visual materials that are clearly labeled as proprietary, confidential, or with words of similar meaning, and all information that is orally or visually disclosed, if not expressly designated, if it is identified as proprietary or confidential at the time of its disclosure or in a writing provided to the receiving party within thirty (30) days after disclosure. Confidential Information does not include information that: (a) is now, or hereafter becomes, through no act or failure to act on the part of the receiving party, generally known or available to the public; (b) was acquired by the receiving party before receiving such information from the disclosing party and without restriction as to use or disclosure; (c) is hereafter rightfully furnished to the receiving party by a third party, without restriction as to use or disclosure; or (d) is information which the receiving party can document was independently developed by the receiving party without use of the disclosing party’s Confidential Information.
  • Use of Confidential Information. Neither party shall disclose any of the other party’s Confidential Information to any third party or use such Confidential Information for any purpose other than to (i) perform its obligations or exercise its rights under this Agreement; or (ii) as otherwise required by law. Each party shall use the same measures to protect the Confidential Information of the other party as it uses with respect to its own confidential information of like importance, but in no event shall it use less than reasonable care, including, instructing its employees, vendors, agents, consultants and independent contractors of the foregoing and requiring them to be bound by appropriate confidentiality agreements. If a party is required to disclose by law the Confidential Information of the other party, the Disclosing Party shall provide the other party with prompt notice of such request(s) so that it may seek an appropriate protective order and/or waive compliance with the provisions of this Agreement. Cynet reserves the right to disclose the terms and conditions of this Agreement, provided the recipient agrees to maintain the confidentiality of the information disclosed at a standard not less than required herein, (a) to accountants, banks and financing sources and their advisors for the purpose of securing financing; and (b) in connection with an actual or proposed merger or acquisition or similar transaction. Upon termination or expiration of this Agreement the receiving party will promptly return to the disclosing party or destroy, at the disclosing party’s option, all tangible items containing or consisting of the disclosing party’s Confidential Information, if return or destruction is feasible. If return or destruction of the disclosing party’s Confidential Information is not feasible, the receiving party’s obligation to continue to maintain the confidentiality of the Confidential Information continues for as long as the receiving party has the Confidential Information. Notwithstanding the foregoing, the parties’ obligation to continue to maintain the confidentiality of the Confidential Information does not terminate or expire.
  1. LIMITED WARRANTIES
  • Conformance with Documentation. Cynet warrants that the Services will substantially conform in all material respects in accordance with the Documentation. Customer will provide prompt written notice of any non-conformity and provide Cynet a reasonable opportunity, not to exceed thirty (30) days, to remedy such non-conformity. Cynet may modify the Documentation in its sole discretion, provided the functionality or security threshold of the Services will not be materially degraded during the Term.
  • Service Availability. Cynet warrants that the Services will meet the requirements set forth in Section 3.1.
  • No Viruses. Cynet warrants that the Services do not contain any computer code that is intended to (i) disrupt, disable, harm, or otherwise impede in any manner, the operation of Customer’s software, firmware, hardware, computer systems or network (sometimes referred to as “viruses” or “worms”), (ii) permit unauthorized access to Customer’s network and computer systems (sometimes referred to as “traps”, “access codes” or “trap door” devices), or any other similar harmful, malicious or hidden procedures, routines or mechanisms which could cause such programs to cease functioning or to damage or corrupt data, storage media, programs, equipment or communications, or otherwise interfere with Customer’s operations.
  • Warranty Disclaimer. EXCEPT AS PROVIDED IN THIS SECTION 9, CYNET PROVIDES THE SERVICES “AS IS” AND MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICES, TRAINING, REPORTS, DOCUMENTATION, TRAINING MATERIALS OR ANY OTHER RELATED DATA, AND SPECIFICALLY DISCLAIMS ANY WARRANTY OF AVAILABILITY, ACCURACY, RELIABILITY, USEFULNESS, ANY IMPLIED WARRANTY OF MERCHANTABILITY, NONINFRINGEMENT, TITLE OR FITNESS FOR A PARTICULAR PURPOSE AND ANY CONDITION OR WARRANTY ARISING FROM COURSE OF PERFORMANCE, DEALING OR USAGE OF TRADE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY. THE FACT THAT AN ORGANIZATION OR WEBSITE IS REFERRED TO IN THE TRAINING OR TRAINING MATERIALS AS A CITATION AND/OR AS A POTENTIAL SOURCE FOR FURTHER INFORMATION DOES NOT MEAN THAT CYNET ENDORSES THE INFORMATION SUCH ORGANIZATION OR WEBSITE MAY PROVIDE OR THE RECOMMENDATIONS IT MAY MAKE.
  1. INTELLECTUAL PROPERTY INDEMNIFICATION
  • Subject to the terms of this Section 10, Cynet shall, at its sole cost and expense, defend (or at its sole option settle), indemnify and hold harmless Customer and the directors, officers, employees and agents of the foregoing (“Customer Indemnitees”) from and against any third party claim that the Services, when used in accordance with this Agreement, infringe any United States patent, copyright or trademark of a third party (a “Claim”).
  • Cynet’s obligations of indemnification shall be subject to the following: (a) Customer shall notify Cynet of any such Claim promptly after it obtains knowledge of such Claim, (b) Customer shall provide Cynet with reasonable assistance, information, and cooperation in defending the lawsuit or proceeding, at Cynet’s sole cost and expense, (c) Customer shall give Cynet full control and sole authority over the defense and settlement of such Claim, provided settlement fully releases the Customer Indemnitees and is solely for monetary damages and does not admit any liability on behalf of the Customer. Notwithstanding the following, Customer may join in defense and settlement discussions directly or through counsel of Customer’s choice at Customer’s own cost and expense.
  • Following notice of a Claim or upon any facts which in Cynet’s sole opinion are likely to give rise to such Claim, Cynet shall in its sole discretion and at its sole option elect to (a) procure for Customer the right to continue to use the Services, at no additional cost to Customer or Customer Indemnitees, (b) replace the Services so that it becomes non-infringing but functionally equivalent, (c) modify the Services to avoid the alleged infringement but in a manner so that it remains functionally equivalent, or (d) terminate this Agreement and provide a refund to Customer of all amounts prepaid by Customer to Cynet for Services that have not yet been provided.
  • Notwithstanding anything contrary contained herein, Cynet shall have no obligation to indemnify, defend or hold harmless the Customer hereunder to the extent a Claim is caused by or results from: (a) Customer’s combination or use of the Services with software, services or products developed by Customer or other third parties, unless specifically contemplated by this Agreement, (b) modification of the Services by anyone other than Cynet or its agents without Cynet’s express approval, (c) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (d) Customer’s use of the Services in a manner not contemplated by this Agreement, the Documentation or the Training Materials, or (e) Customer’s negligence, recklessness or intentional misconduct or its failure to abide by all laws, rules, regulations or orders applicable to the Services.
  1. GENERAL
  • Entire Agreement. This Agreement constitutes the entire understanding and agreement of the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, representations and understandings between the parties regarding the subject matter hereof, including any terms contained in any purchase order or invoice issued by either party in connection with any transaction covered by this Agreement are null and void. Where there is a conflict between a Purchase Order and this Agreement, the terms contained in a Purchase Order will take precedence relating to the matter for which there was a conflict. All headings herein are not to be considered in the construction or interpretation of any provision of this Agreement.
  • Amendment and Waiver. Any term or provision of this Agreement may be amended in writing by both parties to this Agreement. The observance of any term of this Agreement may be waived only by a writing signed by both parties.
  • If any provision of this Agreement is found to be invalid or unenforceable, such provision shall be severed from the Agreement and the remainder of this Agreement shall be interpreted so as best to reasonably affect the intent of the parties hereto.
  • Independent Contractors. The parties are independent contractors, and 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 consent.
  • Governing Law and Jurisdiction. For any Customer who is a US entity, this Agreement shall be governed by the laws of the State of New York, without reference to its conflict of laws principles and the parties consent to exclusive jurisdiction and venue in and for New York, New York. For all other Customers, this Agreement shall be governed by the laws of the State of Israel, without reference to its conflict of laws principles and the parties consent to exclusive jurisdiction and venue in and for Tel Aviv, Israel.
  • Injunctive Relief. Each party reserves the right to seek injunctive relief due to the other party’s actual or threatened breach of this Agreement.
  • Force Majeure. Neither party shall be responsible for any non-performance or delay (except for delay in payment) attributable in whole or in part to any cause beyond its reasonable control (a “Force Majeure Event”), including but not limited to acts of God, government actions including changes in applicable law, war, civil disturbance, sabotage, terrorist acts, failure or delay in provision of services by subcontractors or the other party’s fault or negligence.
  • Neither party may assign this Agreement without the prior written consent of the other party, except that either party may assign this Agreement to any successor to substantially all of its business or assets to which this Agreement relates, upon written notice to the other party, provided that in such case the other party may terminate this Agreement within thirty (30) days of receipt of the notice of assignment. This Agreement shall inure to the benefit of and be binding on the respective successors and assigns of the parties.
  • Any notice required under this Agreement shall be in writing and shall be delivered by hand or by overnight express mail to the contact name and address set forth on a Purchase Order, or as otherwise described in this Agreement.
  • The following provisions shall survive the termination or expiration of this Agreement: Sections 4.2, 4.3, 6, 7, 8, 9, 10 and 11.
  • Counterparts and Electronic Signatures. This Agreement and any Purchase Orders may be executed in one or more counterparts, each of which shall constitute one and the same instrument. For the purpose of executing this Agreement and all Purchase Orders under this Agreement, the parties hereto agree that .pdf signatures sent via email shall serve as original signatures.

 

 

NDA

MUTUAL NON-DISCLOSURE AGREEMENT

 

Whereas the Parties wish to investigate each other’s business and/or products and/or technology solely for the purpose of evaluating potential cooperation (the “Purpose”); and

 

Whereas each of the Parties will need to be exposed to Confidential Information of the other Party, as defined below;

 

Now therefore, each of the Parties hereby declares, represents, warrants and undertakes towards the other Party as follows:

 

As used herein the term “Disclosing Party” shall refer to each of the Parties respectively, and any parent or subsidiaries thereof, with respect to any Confidential Information, as defined below, which such party has disclosed, and the term “Receiving Party”, shall refer to each of the Parties respectively, with respect to any Confidential Information, as defined below, which has been disclosed thereto.

 

  1. The term “Confidential Information” shall mean any and all information, whether or not marked ‘Confidential’, that the Receiving Party be presented with and/or exposed to concerning the Disclosing Party, its business, operations, technology and products, which may include, without limitation, any commercial, financial or technical information, information regarding technologies, know-how, inventions, developments, processes, methods, specifications, trade secrets, marketing, business plans, activities, business opportunities, names of suppliers, customers, strategic partners, sources, costs and/or any other private, confidential and/or proprietary information with regard to the Disclosing

 

  1. The Receiving Party shall maintain the Confidential Information in strict and absolute confidence at all times, and shall not, directly or indirectly, disclose, expose or make available the Confidential Information, in whole or in part, to any person or entity, except: (i) as may be expressly authorized in writing by the Disclosing Party; or

(ii) to a minimum required number of the Receiving Party’s employees, officers, directors, subcontractors and advisors, on a “need to know” basis as necessary solely for the Purpose, provided however that:(x) any such party to whom the Confidential Information is intended to be disclosed are bound by a confidentiality undertaking that requires the preservation of the confidentiality of the Confidential Information on terms no less stringent than the terms contained herein; and (y) the Receiving Party has advised each such employee or anyone acting on its behalf, before s/he/it receives access to Confidential Information, of his/her/its obligations under this Agreement. The Receiving Party shall take all necessary measures to safeguard the Confidential Information including at a minimum, those steps that it takes to protect its own information of a proprietary and confidential nature.

 

  1. The Receiving Party shall not use the Confidential Information other than solely for the Purpose, nor derive any other benefit therefrom. Any benefit derived from or relating to the Confidential Information shall belong solely to the Disclosing

 

  1. The Receiving Party shall not, nor suffer or permit any third party to, analyze, decompile, disassemble, reverse engineer (or the like), any tangible product or media which constitutes, contains, records or in any way documents or embodies Confidential Information, and shall not remove, overprint or deface any notice of confidentiality, copyright, trademark, logo, legend or other notices of ownership or confidentiality from any originals or copies of Confidential Information it obtains from the Disclosing

 

  1. The Receiving Party shall be responsible to the Disclosing Party for any disclosure or misuse of Confidential Information which results from a failure of any of its employees or any other persons acting on its behalf to comply with this

 

  1. The obligations of confidentiality and non-use set forth herein shall not extend to any portion of such information, which the Receiving Party can demonstrate through tangible evidence:
    • was lawfully and rightfully known to the Receiving Party without restrictions as to use or disclosure, prior to the disclosure by the Disclosing Party; or
    • was at the time of disclosure to the Receiving Party, or subsequently became through no fault of the Receiving Party, generally available to the public; or
    • was rightfully received by the Receiving Party from a third party having the right to make such disclosure and provided that such information is so provided to the Receiving Party without restrictions as to use or disclosure; or
    • was independently developed by the Receiving Party without reference to or use of the Confidential Information; or
    • is required to be disclosed pursuant to an order of a court of competent jurisdiction or by applicable law or regulation, provided however, that (a) such disclosure is made only to the extent and solely to the recipient legally required; and (b) the Receiving Party provides the Disclosing Party with adequate prior written notice of such legal requirement and, to the extent possible, with the opportunity to oppose the disclosure or obtain a protective

 

  1. The Receiving Party acknowledges and recognizes that all Confidential Information made available to or received by, the Receiving Party, and all right, title and interest therein, is and shall remain, at all times, the exclusive property of the Disclosing Party, and the furnishing of any Confidential Information pursuant to this Agreement shall not constitute the granting to the Receiving Party of any right or license to copy or use such information, nor derive any benefit therefrom, in any

 

  1. The Receiving Party shall, immediately upon written demand by the Disclosing Party, (i) return any and all documents and other tangible materials containing Confidential Information, and destroy any internal documents or computer files that contain Confidential Information, such that no Confidential Information shall remain with the Receiving Party and (ii) upon request of the Disclosing Party, certify in writing, that it has complied with the obligations set forth in this Section

 

  1. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. EACH PARTY MAKES NO WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR

  1. This Agreement imposes no obligation on either Party to proceed with any transaction between the parties hereto or to enter any business relationship whatsoever with each other nor does it create any obligation of the Disclosing Party to disclose any Confidential

 

  1. The undertakings contained herein shall survive the termination of any discussions and/or cooperation between the Parties. Notwithstanding, the undertakings to maintain the confidentiality of the Confidential Information shall remain in full force and effect as long as the Confidential Information has not clearly become generally available to the public through no fault, directly or indirectly, of the Receiving Party or of any third party owing an obligation of confidence to the Disclosing Party, or until the lapse of seven (7) years from the date of execution hereof, the earlier to occur, except said obligation with respect to the confidentiality of trade secrets which shall not

 

  1. The Receiving Party acknowledges that the Confidential Information is of a highly secret and confidential nature and that any unauthorized disclosure or use thereof may cause serious harm or damage to the Disclosing Party, and its shareholders and officers and diminish the value of their proprietary interests. Therefore, if the Receiving Party breaches any of its obligations hereunder, the Disclosing Party may be entitled to equitable relief to protect its interest therein, including but not limited to injunctive relief, as well as monetary

 

  1. In the event a provision of this Agreement shall be determined to be unenforceable, because it is invalid or in conflict with any law of any relevant jurisdiction, the validity of the remaining provisions shall not be affected, and the rights and obligations of the Parties shall be construed and enforced, as if the Agreement did not contain the particular provision(s) held to be unenforceable. In the event the extent and/or duration of one or more of the obligations hereunder exceeds and/or extends the duration allowed by law, such obligation shall be deemed to be the maximum extent or duration allowed by law.

 

  1. The failure by the Disclosing Party to require performance or to enforce any right shall in no manner affect the Disclosing Party’s right at a later time to enforce the same and in no way be construed to be a waiver of such right by the Disclosing

 

  1. This Agreement constitutes the entire agreement between the Parties with respect to the disclosure of Confidential Information and may not be amended or modified except in writing and duly executed by both Parties.

 

  1. Neither party may assign or otherwise transfer this Agreement without the prior written consent of the other party; however, either party may assign or transfer this Agreement in connection with a merger, acquisition, sale of substantially all its assets or other such corporate reorganization. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties hereto and their successors and

 

  1. This Agreement, its validity, performance and breach, shall be governed and construed in accordance with the laws of the State of California (excluding its body of law controlling conflicts of law). This Agreement, and any dispute or claim with respect hereto, shall be subject to the sole and exclusive jurisdiction and venue in the County of Orange, California, United States, to the absolute exclusion of any other courts and any other jurisdictions. Notwithstanding, the Disclosing Party shall retain the right to institute proceedings including interlocutory and/or injunctive relief in any relevant

 

  1. Each Party acknowledges that the other Party’s agreement to furnish it with its Confidential Information is based on and is a result of its execution