Cybersecurity Readiness. Accelerated.
SOFTWARE SUBSCRIPTION SERVICE (SaaS) AGREEMENT
This Software Subscription Service (SaaS) Agreement (the "Agreement")sets forth the obligations and conditions between you ("Client")and CyberRx ("Provider"), relating to your use of thesoftware and services defined herein. Please read this Agreementcarefully. Your use of the Software and Services is expresslyconditioned on your acceptance of this Agreement.
BY CLICKING THE "I AGREE" ICON BELOW, AND/OR BY USING THESERVICES, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THISAGREEMENT. IF YOU DO NOT AGREE TO ANY TERM OF THIS AGREEMENT, DO NOTUSE THE SERVICES AND EXIT IMMEDIATLEY BY CLICKING "I DO NOT AGREE"ICON BELOW.
Provider is the owner of certain proprietary computer software known as CyberRx (hereinafter the "Software") that is used to assess Client's cybersecurity capabilities, to determine Client's levels of rigor and sophistication in cybersecurity risk management practices and to measure levels of preparedness and resilience based on data entered by the Client.
Provider provides and sells subscriptions to allow access and use of the Software via https://cyber-rx.com/app or other websites that may be used from time to time (the "Services").
Client desires to use the Services for only Client's internal business purposes.
Provider is willing to provide access to the Services for to the Client and authorized users defined herein for Client's internal business use pursuant to the terms and conditions set forth herein.
Provider and Client acknowledge and agree that this Agreement shall be effective and in force immediately upon the date that Client clicks the "I Agree" icon below (the "Effective Date")
NOW THEREFORE, in consideration for the mutual promises containedherein and other good and valuable consideration, the parties agreeas follows:
1.0 Software Subscription.
1.1 Provider grants to Client and Client accepts from Provider, alimited, non-exclusive, non-transferable right to access and use andpermit Authorized Users to access and use the Services solely forClient's internal business use. Authorized Usersare Client'semployees and contractors working on behalf of Client. The Servicesshall not be used by Client or by Authorized Users for, or on behalfof, third parties that are not authorized under this Agreement. Client shall use its best efforts to ensure that the Authorized Usersuse the Services in accordance with the terms and conditions of thisAgreement. Client acknowledges that its right to use the Serviceswill be web-based only pursuant to the terms of this Agreement andthe Software will not be installed on any servers or other computerequipment owned or controlled by Client or otherwise provided toClient.
1.3 ClientResponsibilities. Clientshall: (a) be responsible for all Subscription Users' compliancewith the Agreement, (b) be solely responsible for the accuracy,integrity, and legality of client data and the means by which itacquires and uses such Client Data, (c) use the Provider software andservices in accordance with applicable laws, rules, regulations(including, without limitation, export, data protection and privacylaws, rules and regulations) and any Provider software and servicedocumentation, and (d) notify Provider immediately of anyunauthorized use of, or access to, the Provider's software andservices.
1.4 Restrictions.Client shall not, directly or indirectly: (a) sublicense, resell,rent, lease, distribute, market, commercialize or otherwise transferrights or usage to the Provider's software and services or anymodified version or derivative work of the Software or servicescreated by or for Client (b) provide the Provider Software andServices, or any modified version or derivative work of the ProviderSoftware and Services created by or for Client on a timesharing,service bureau, service provider or other similar basis, (c) removeor alter any copyright, trademark or proprietary notice in theProvider Software and Services, (d) reverse engineer, decompile, ordisassemble the Provider Software and Services, (e) copy any features, functions or graphics of the Provider Software and Servicesfor any purpose other than what is expressly authorized in thisAgreement.
1.5 Reservation of Rights. All rights not expressly granted toClient are reserved by Provider
2.0 Intellectual Property Rights.
2.1 Client acknowledges that all right, title, and interest in and tothe Services and the Software, together with its codes, algorithms,sequences, derivative works, organization, structure, interfaces, anydocumentation, data, trade names, trademarks, or other relatedmaterials (collectively, the "Provider IP"), is, and at all timesshall remain, the sole and exclusive property of Provider. TheProvider IP contains trade secrets and proprietary information ownedby Provider and is protected by United States copyright laws andother laws relating to intellectual property. Except the right touse the Services, as expressly provided herein, this Agreement doesnot grant to Client any rights to, or in, patents, copyrights,database rights, trade secrets, trade names, trademarks (whetherregistered or unregistered) or any other rights or licenses withrespect to the Services or the Software.
2.2 Client shall not attempt, or directly or indirectly allow anyAuthorized User or other third party to attempt to copy, modify,duplicate, create derivative works from, frame, mirror, republish,reverse compile, disassemble, reverse engineer, download, transmit ordistribute all or any portion of the Services and/or Software in anyform or media or by any means.
2.3 Ownershipof Client Data; License. Asbetween Client and Provider, Client owns all Intellectual PropertyRights in and to the Client Data and grants to Provider anon-exclusive license to use, copy and make derivative works of theData.
2.4 Suggestions. Provider shall have a royalty-free, worldwide, transferable,sublicensable, irrevocable, perpetual license to use, copy, modify,or distribute, including by incorporating into any product or serviceowned by Provider, any suggestions, enhancement requests,recommendations or other feedback provided by Client relating to thesoftware and services provided by Provider
2.5 The provisions of paragraph 2 shall survive termination of thisAgreement.
3.0 Subscription Fee.
3.1 Client shall pay to Provider the subscription fee (the"Subscription Fee") in the amount and for the duration thatClient has entered and agreed to pursuant to the sign up page forthis Agreement.
3.2 The Subscription Fee for the first Subscription Period (eithermonth or year, as applicable) of the term of this Agreement shall bepaid on the Effective Date. The Subscription Fee for all subsequentSubscription Periods of the term of this Agreement shall be paid toProvider on the first day of each subsequent Subscription Period,pursuant to subsection d, below.
3.3 The amount of the Subscription Fee does not include anyapplicable taxes. Client is responsible for any and all applicabletaxes.
3.4 Client shall provide a valid credit card, ACH payment systeminformation, bank account information authorized for automatic billpaying, or other acceptable method of payment to Provider and shalltake all necessary steps to authorize automatic payment of theSubscription Fee. By agreeing to this Agreement, Client herebyauthorizes Provider to automatically charge said method of paymentfor all Subscription Periods during the term of this Agreement. If,for any reason, automatic payment shall be denied, then Client shallpay the applicable Subscription Fee, together with a $50.00 late fee,to Provider within five (5) days of notice from Provider.
3.5 Any additional payment terms between Provider and Client shallbe agreed to in writing and set forth in an invoice, billingagreement, or other written document.
4.0 Accessibility/Performance. Provider shall usecommercially reasonable efforts to make the Services available on a24x7 basis (twenty-four hours per day, seven days per week) duringthe Term, except for: (i) scheduled system back-up or other on-goingmaintenance as required and scheduled in advance by Provider, or (ii)for any unforeseen cause beyond Provider's reasonable control,including but not limited to internet service provider orcommunications network failures, denial of service attacks or similarattacks, or any force majeure events set forth in this Agreement. Provider will monitor performance indicators on the systems andnetwork infrastructure (its own and that of third party suppliers) inorder to gauge the overall performance of its hosting services, andwill take reasonable steps to address systems and networkinfrastructure as required to maintain satisfactory performance ofthe Software. Provider further reserves the right to monitor andreasonably restrict Client's ability to use the Services if Clientis using excessive computing resources which are impacting theperformance of the Services for other subscribers. Provider agrees tonotify Client in cases where it restricts such use and use good faithefforts to determine an appropriate alternative or workaroundsolution.
5.0 Maintenance and Support. Provider shall maintain theSoftware and/or Services and provide all patches and fixes to theSoftware and/or Services at no additional cost. Provided, however,said maintenance shall not include any major releases of new versionsof the Software, additional functionality, or custom programming,which Provider, at its discretion, may provide at an additional costas otherwise agreed between the parties.
6.0 Term. The Term of this Agreement shall commence on theEffective Date and shall continue until terminated as providedherein. Client shall elect whether the term will consist of annualor monthly periods (each a "Subscription Period"). The Agreementshall automatically renew for subsequent Subscription Periods unlesseither party provides written notice of its election not to renewthis Agreement at least fifteen (15) days prior to end of thethen-current Subscription Period or otherwise terminates thisAgreement pursuant to the terms of this Agreement. Upon terminationof this Agreement for any reason, all rights and subscriptionsgranted to Client shall immediately terminate, and the Client shallcease using the Services and shall prohibit Authorized Users fromusing the Services.
7.0 Default. Client shall be in default of this Agreement ifClient fails to make any payment when due and fails to cure saiddefault within five (5) days after receipt of written notice thereoffrom Provider. In addition to the monetary breach described in theprevious sentence, either party will be in default of this Agreementif the party is in material breach of this Agreement and fails tocure such breach within fifteen (15) days after receipt of writtennotice thereof from the non-breaching party. If a party is indefault, the non-breaching party may terminate this Agreement or seekany other remedies available at law or in equity, except as otherwiseprovided in this Agreement. In the event Client breaches or attemptsto breach any of the provisions of this Agreement, Provider shallhave the right, in addition to such other remedies that may beavailable, to injunctive relief enjoining such breach or attempt tobreach, Client hereby acknowledging the inadequacy of any remedy atlaw.
8.1 In addition to, and in no way limiting the requirements relatingto the Provider IP as set forth in Section 2 of this Agreement,Client shall use its reasonable efforts (but in no case less than theefforts used to protects its own proprietary information of a similarnature) to protect all proprietary, confidential, and/or non-publicinformation pertaining to or in any way connected to the Software,the Services, the Provider's financial, professional and/or otherbusiness affairs, and this Agreement (the "ConfidentialInformation").
8.2 Client shall not disclose or publicize the ConfidentialInformation without the Provider's prior written consent.
8.3 Client shall use their reasonable efforts (but in no case lessthan the efforts used to protects its own proprietary information ofa similar nature) not to disclose and not to use the ConfidentialInformation for their own benefit or for the benefit of any otherperson, third-party, firm or corporation in a manner inconsistentwith the purpose of this Agreement.
8.4 The terms of confidentiality and non-disclosure contained hereinshall expire five (5) years from the date of the termination of thisAgreement.
8.5 The restrictions on disclosure shall not apply to informationwhich was: (i) generally available to the public at the time ofdisclosure, or later available to the public other than through faultof the Client; (ii) already known to the Client prior to disclosurepursuant to this Agreement; (iii) obtained at any time lawfully froma third-party under circumstances permitting its use or disclosure toothers; or (iv) required by law or court order to be disclosed.
9.0 Limited Warranty. Provider warrants that it has thepower and authority to grant the subscription for the Servicesgranted to Client hereunder. EXCEPT FOR THE WARRANTY SET FORTHHEREIN, THE SERVICES ARE PROVIDED "AS IS," AND PROVIDER DISCLAIMSANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUTLIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABLITY OR FITNESS FOR APARTICULAR PURPOSE.
10.0 Limitation of Remedy and Liability. Client representsthat it accepts sole and complete responsibility for: (a) theselection of the Services to achieve Client's intended results; (b)use of the Services; (c) the results obtained from Services; and (d)the terms of any contracts between Client and Authorized Users. Provider does not warrant that the Client's use of the Serviceswill be uninterrupted or error-free. Client shall not assert anyclaims against Provider based upon theories of negligence, grossnegligence, strict liability, fraud, or misrepresentation, and Clientshall defend Provider from any demand or claim, and indemnify andhold Provider harmless from any and all losses, costs, expenses, ordamages, including reasonable attorneys' fees, directly orindirectly resulting from Client's use of the Services, anAuthorized User's use of the Services, and/or any agreement betweenthe Client and an Authorize User based on or in any way related tothe Services. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, INNO EVENT SHALL PROVIDER
BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL,PUNITIVE, EXEMPLARY OR DAMAGES WHATSOEVER (INCLUDING, WITHOUTLIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESSINTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARYLOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES,WHETHER BASED UPON CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICTLIABILITY OR OTHERWISE, EVEN IF PROVIDER HAS BEEN ADVISED OF THEPOSSIBILITY OF SUCH DAMAGES. In any event, under no circumstancesshall Provider be liable for any loss, costs, expenses, or damages toClient in an amount exceeding the Subscription Fee actually paid toProvider by Client for the previous twelve (12) months.
10.1 No Third-Party Beneficiaries. There are no third party beneficiaries to this Agreement.
11.1 By Provider. Providershall defend Client from any third party action, suit or proceedingbrought or made against Client alleging that the Software orCompany's use of the Software infringes any United States patent orUnited States federally registered copyright and Provider shall payany expenses incurred by Client(including reasonable attorneys'fees) and any final judgment entered against Client in any suchproceeding or agreed to in settlement, provided that (a) Provider ispromptly notified in writing of such action, suit or proceeding, (b)Provider or its designee is given sole control of such defense andall related settlement negotiations, and (c) Client gives allinformation and assistance reasonably requested by Provider or suchdesignee. If any such action, suit or proceeding is brought orthreatened, or if Provider believes any such action, suit orproceeding is imminent, Provider may, at its option, (i) procure forClient the right to use the Software, or (ii) replace the Softwarewith other suitable products that provide substantially similarfunctionality. In the event Provider determines that Clientwill require rights from a third party to use the Software andProvider is unable to procure such rights for Client or replace theSoftware with products that provide substantially similarfunctionality, and in lieu of the foregoing indemnity, Provider shallhave the option of refunding a pro-rata portion of the then-currentFee(s) paid by Client for the Software or the affected part thereof. Provider shall have no liability under this Section 8 or otherwise tothe extent a claim or suit is based upon (a) use of the Software incombination with software or hardware not provided by Provider ifinfringement would have been avoided in the absence of suchcombination, (b) modifications to the Software not made by Provider,if infringement would have been avoided by the absence of suchmodifications, (c) use of any version other than a current release ofthe Software, if infringement would have been avoided by use of acurrent release, or (d) any action or omission of Client for whichClient is obligated to indemnify Provider as provided for herein.
11.2 By Client. Clientshall defend Provider from any third party action, suit or proceedingbrought or made against Provider arising out of: (i) any breach ofthis Agreement by Client, its affiliates, employees agents,successors and assigns or Customers; or (ii) relating to or basedupon Client Data or the activities conducted by Client using theSoftware (other than the normal, ordinary, and intended uses of theSoftware), and Client shall pay any final judgment entered againstProvider in any such proceeding or agreed to in settlement.
12.1 Notice and Demands. Notice, demand, or othercommunication mandated to be given by this Agreement by either partyto the other shall be sufficiently given or delivered if it is sentby registered or certified mail, postage prepaid, return receiptrequested or delivered personally. Unless Provider is otherwisenotified in writing, the Client's address for notice purposes shallbe Client's address provided as part of Client's billinginformation.
12.2 Governing Law; Forum Selection. This Agreement shall begoverned exclusively by the laws of the State of Maryland, withoutregard to its conflicts of laws principles. Any action under orconcerning this Agreement shall be brought in the courts ofMontgomery County, Maryland or in the U.S. District Court forMaryland. The parties irrevocably agree and consent to personaljurisdiction in Maryland that said forums are convenient and havejurisdiction to hear and decide any such action.
12.3 AttorneysFees. In any action related tothis Agreement, if any party is successful in obtaining some or allof the relief it is seeking or in defending against the action and isa prevailing party, the other party shall pay, on demand, thesuccessful party's reasonable attorneys' fees and reasonablecosts
12.4 Compliance with Laws. Client shall use the Services inaccordance with any and all applicable local, state, and federallaws.
12.5 Data Usage. The Provider reserves the right to anonymizeany data entered into the application and to share the anonymizeddata with clients or public forums.
12.6 Headings. The paragraph headings in this Agreement arefor convenience only and they form no part of the Agreement and shallnot affect the interpretation thereof.
12.7 Severability. If any provision of this Agreement shallbe held illegal, void, or unenforceable, the remaining portions shallremain in full force and effect.
12.8 No Waiver. The delay or failure of either party toexercise any right under this Agreement or to take action against theother party in the event of any breach of this Agreement shall notconstitute a waiver of such right, or any other right, or of suchbreach, or any future breaches, under this Agreement.
12.9 Assignment. Client shall not assign or transfer thisAgreement without the express consent of Provider.
12.10 No Partnership or Agency. Nothing in this Agreement isintended to or shall operate to create a partnership between theparties, or authorize either party to act as an agent for the other,and neither party shall have the authority to act in the name or onbehalf of or otherwise bind the other in any way.
12.11 Force Majeure. Provider will not be held responsiblefor any delay or failure in performance of any part of this Agreementto the extent that such delay is caused by events or circumstancesbeyond the Provider's reasonable control, including but not limitedto fire, flood, storm, act of God, war, malicious damage, failure ofa utility service or transport or telecommunications network.
11.12 Complete Agreement. This Agreement constitutes theentire agreement between the parties with respect to the Services,and supersedes any and all prior or contemporaneous understandings oragreements whether written or oral. No amendment or modification ofthis Agreement will be binding unless reduced to a writing signed byduly authorized representatives of the parties and such writing makesspecific reference to this Agreement and its intention as anamendment hereto.
BY CLICKING "I AGREE" AND/OR BY USING THE SOFTWARE, YOUACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTOOD IT, ANDAGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER AGREETHAT THIS AGREEMENT SHALL BE SUPERIOR TO, AND SUPERCEDE ANYCONFLICTING OR INCONSISTENT TERMS CONTAINED IN ANY PURCHASE ORDERS,OTHER DOCUMENTS PROVIDED TO THE COMPANY BY YOU, OTHER DOCUMENTSPROVIDED TO YOU BY THE COMPANY, OR AGREEMENTS PREVIOUSLY ENTERED INTOBY THE PARTIES. IF YOU DO NOT AGREE TO THE TERM OF THIS AGREEMENT,DO NOT INSTALL OR USE THE SOFTWARE APPLICATION AND/OR THE DATA, ANDEXIT NOW BY CLICKING ON THE "I DO NOT AGREE" ICON BELOW.
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