Master Subscription Agreement
This Master Subscription Agreement and the Purchase Order (together, the “Agreement”) govern the use by the entity set forth in the attached Purchase Order (the “Customer”) of Cynamics’ proprietary online platform, which provides Customers with a network visibility and cybersecurity threat detection and response solution, accessible on a Software as a Service basis, including through the use of an API, Email and Short Message Service (SMS) alert notifications and Cynamics website (the “Solution”).
Whereas, Customer desires to receive a right to access and use the Solution; and
Whereas, Cynamics agrees to provide to Customer access to use the Solution in consideration for the Fees and in accordance with the terms and conditions set forth in this Agreement.
Now, Therefore, the parties agree as follows:
Software as a Service.
1.1. Subject to the terms and conditions of the Agreement, Cynamics grants to Customer a non-exclusive, non-sublicensable, non-transferable and limited right throughout the applicable subscription period (i) to use and access the Solution solely for Customer’s internal business use and for Customer’s own operations and (ii) to use and further disseminate the Output Data for any reasonable business purpose.
1.2. “Output Data” means the reports, notifications and other information that the Service may generate, provide or make available to Customer, whether through the Service’s website, an API, Email, SMS notification, output file, or otherwise.
Intellectual Property Rights.
2.1. Cynamics retains all right, title, and interest in and to the Solution, including without limitation all software used to provide the Solution and all logos and trademarks reproduced through the Solution, and this Agreement does not grant Customer any intellectual property rights in the Solution or any of its components. The Solution is made available for use and access and is not sold or licensed.
2.2. Except for Customer’s limited access to use the Solution and the Output Data according to the terms of this Agreement, this Agreement does not grant Customer or assigns to Customer, any license, right, title, or interest in or to the Solution or the intellectual property rights associated with it. All rights, title and interest, including copyrights, patents, trademarks, trade names, trade secrets and other intellectual property rights, and any goodwill associated therewith, in and to the Solution or any part thereof, and any work product or deliverable created within the scope of the services rendered pursuant thereto including computer code, graphic design, layout and the user interfaces of the Solution, but excluding data Cynamics processes or is exposed to in the course of providing the service relating to the Solution, as well as the Output Data, are and will remain at all times, owned by, or licensed, to Cynamics.
Restrictions on Use.
3.1. Except as relevant law may otherwise require to be permitted, Customer may not modify, make derivative works of, disassemble, de-compile or reverse engineer any part of the Solution, or otherwise attempt to discover its underlying code, structure, implementation or algorithms. Customer shall not directly or indirectly take any action to contest Cynamics’ intellectual property rights or infringe them in any way.
3.2. Customer may not use the Solution in order to develop, or create, or permit others to develop or create, a product or service similar or competitive to the Solution.
3.3. Except for the Output Data, Customer may not offer the Solution to third parties, including by reselling, licensing, renting, leasing, transferring, lending, timesharing, assigning or redistributing the Solution or any part thereof. Customer shall not permit any unauthorized person to access or use the Solution.
3.4. Customer may not perform or attempt to perform any of the following in connection with the Solution: (i) Breaching the security of the Solution, identifying, probing or scanning any security vulnerabilities in the Solution; (ii) Accessing data not intended for Customer, or accessing an account Customer is not authorized to access; (iii) Interfering with, circumventing, manipulating, overloading, impairing or disrupting the operation, or the functionality of the Solution; (iv) Working around any technical limitations in the Solution; (v) Using any tool to enable features or functionalities that are otherwise disabled, inaccessible or undocumented in the Solution; (vi) Collecting or processing information or data about the Solution’s subscribers; (vii) Sending any virus, worm, Trojan horse or other malicious or harmful code or attachment; (viii) Using robots, crawlers and similar applications to scrape, harvest, collect or compile content from or through the Solution.
3.5. Customer may not use the Solution for any activity that constitutes, or encourages conduct that would constitute, a criminal offense, give rise to civil liability or otherwise violate any applicable law.
3.6. Cynamics may employ measures to detect and prevent fraudulent or abusive use of the Solution, as well as misuse of the Solution. Cynamics may suspend or terminate Customer’s account on and access to the Solution, without prior notice, if Cynamics, in its sole discretion, believes that Customer has engaged in fraudulent or abusive use, or misuse, of the Solution.
Support Services. Cynamics shall provide to Customer support services in accordance with the following provisions:
4.1. Subject to proper and timely payment to Cynamics and the Customer’s compliance with the terms and conditions of the Agreement, during the Term, Cynamics shall provide the Customer with technical support for technical questions, problems and inquiries regarding the Service (the “Support Requests”), during Cynamics’ business days and hours.
4.2. Cynamics will attempt to respond to Support Requests within 24 hours of filing of such request by the Customer via email@example.com.
4.3. For the purpose of provision of technical support for Support Requests, Customer will cooperate, and work closely with Cynamics, to reproduce malfunctions, including conducting diagnostic or troubleshooting activities, as Cynamics may reasonably request.
5.1. Each party may have access to certain non-public proprietary, confidential information or data of the other party, regardless of the manner in which it is furnished, which given the totality of the circumstances, a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive (together, the “Confidential Information“). Confidential Information shall exclude any information that (i) is now or subsequently becomes generally available in the public domain through no fault or breach on the part of receiving party; (ii) the receiving party can demonstrate in its records to have had rightfully in its possession prior to disclosure of the Confidential Information by the disclosing party; (iii) receiving party rightfully obtains from a third party who has the right to transfer or disclose it, without default or breach of this Agreement; (iv) the receiving party can demonstrate in its records to have independently developed, without breach of this Agreement or any use of or reference to the Confidential Information. The receiving party agrees: (a) not to disclose the disclosing party’s Confidential Information to any third parties other than to its, directors, officers, employees, advisors or consultants (collectively, the “Representatives“) on a strict “need to know” basis only and provided that such Representatives are bound by written agreements to comply with the confidentiality obligations as protective as those contained herein; (b) not to use or reproduce any of the disclosing party’s Confidential Information for any purposes except to carry out its rights and responsibilities under this Agreement; (c) to keep the disclosing party’s Confidential Information confidential using at least the same degree of care it uses to protect its own confidential information, which shall in any event not be less than a reasonable degree of care. Notwithstanding the foregoing, if receiving party is required by legal process or any applicable law, rule or regulation, to disclose any of disclosing party’s Confidential Information, then prior to such disclosure, receiving party will give prompt written notice to disclosing party so that it may seek a protective order or other appropriate relief.
5.2. Login to the web-based interface through which Customer may access and use the functionality and features of the Solution is authenticated with a password, which Customer is to periodically change. Customer must maintain the confidentiality of its account login details.
6.1. Customer acknowledges and agrees that communications meta-data (i.e., not the content of transmitted data), that is indicative of anomalies and potential threats in Customer’s network, will be used to provide the Solution to the Customer, to conduct administrative and technical activities necessary to provide the Solution to the Customer, and to improve Cynamics’ and the Solution’s ability to detect malicious behavior and cybersecurity risks.
6.2. Customer acknowledges and agrees that Cynamics will process, handle and use (by itself or using trusted third party service providers such as cloud service providers) the Feedback in order to provide the Solution, as well as value-added services, to Customer and other customers, to enhance the Solution, to develop new products and services, for research and testing and for any other purpose Cynamics determines. Customer will not be entitled to any remuneration from Cynamics, for its use of such Feedback.
Warranties. Each party represents and warrants that (i) this Agreement and accompanying Purchase Orders issued pursuant to the Agreement, constitute a legal, valid and binding obligation of them, enforceable against them in accordance with the terms of this Agreement, and (ii) its execution and delivery of the Agreement and its performance hereunder will not violate any applicable law, rule or regulation.
8.1. Cynamics will defend and indemnify Customer, its directors, officers, employees, agents and subcontractors, from and against any and all costs, liabilities, damages, losses and expenses (including, without limitation, reasonable legal fees) (collectively, “Losses”) finally awarded or settled against Customer pursuant to a third party claim arising out of an allegation that the Solution infringes any intellectual property right of such third party, in each case except to the extent such Losses are caused by the gross negligence or intentional misconduct of the Customer. Customer shall provide Cynamics with: (i) prompt written notice of the claim subject to the indemnification; (ii) the right to control and direct the investigation, defense and settlement of such claim; and (iii) reasonable cooperation in connection with such investigation, defense and settlement. Cynamics shall have no obligation to defend or indemnify Customer against any claim related to (i) any modification of the Solution by anybody other than Cynamics, or (ii) the use of the Solution in combination with other hardware, data or programs not specified by Cynamics.
8.2. If such a claim regarding infringement of intellectual property rights of a third party is made, or in Cynamics’ reasonable opinion any element of the Solution is likely to become the subject of such a claim, Cynamics may at its expense, either secure the right for Customer to continue using the Solution, modify it so that it is not infringing, or replace it with a substitute which is functionally equivalent. If none of the foregoing options is available on terms which are reasonable, at Cynamics’ discretion, Cynamics may terminate the Customer’s subscription and refund all prepaid but unused Fees paid thereunder for the affected portion of the Solution.
8.3. Customer will defend and indemnify Cynamics, its directors, officers, employees, and subcontractors, from, and against, any Losses finally awarded or settled against Cynamics pursuant to a third party claim to the extent caused by (a) Customer’s breach of any provision or representation in this Agreement, or (b) data entered into the Solution by the Customer, including but not limited to allegations that any processing of such data by Cynamics under the terms hereof violates any applicable law or regulation, or infringes the privacy or intellectual property rights of a third party, in each case except to the extent such Losses are caused by the gross negligence or intentional misconduct of Cynamics. Cynamics shall provide Customer with: (i) prompt written notice of the claim subject to the indemnification; and (ii) reasonable cooperation in connection with such investigation, defense and settlement.
Disclaimer of Warranties.
9.1. Although Cynamics uses skill and efforts to develop the Solution and have the Solution operate properly and provide accurate Output Data, as a service that relies on back-end software, computer algorithms and third party networks and continuous internet connectivity, Cynamics does not guarantee, makes no representation, and provides no warranty about the reliability, effectiveness, accuracy or completeness of the Solution or Output Data, the expected business results, outcome or yields or any other operational benefits from utilizing the Solution. Customer is solely and exclusively responsible for all actions it may take in relation to the Output Data. If Cynamics receives notice of any failure or malfunction, or if it becomes aware of them by itself, Cynamics will attempt to regain the Solution’s availability as soon as practicable. However, such incidents will not be considered a breach of this Agreement.
9.2. CYNAMICS PROVIDES SERVICES, THE USAGE OF THE SOLUTION AND THE OUTPUT DATA TO CUSTOMER, ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE OR ACCURACY. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, CYNAMICS DOES NOT WARRANT THAT (I) THE SOLUTION, THE OUTPUT DATA OR ANY SERVICES RELATED THERETO WILL BE DELIVERED OR PERFORMED ERROR-FREE OR WITHOUT INTERRUPTION, (II) THE SOLUTION WILL OPERATE IN COMBINATION WITH CUSTOMER’S CONTENT OR ITS APPLICATIONS, OR WITH ANY OTHER SOFTWARE, HARDWARE, SYSTEMS, OR DATA, (III) CUSTOMER’S CONTENT AND APPLICATIONS WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED, OR (IV) THE SOLUTION WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATION.
Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY, ITS RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, SUB-CONTRACTORS AND AGENTS BE LIABLE FOR LOST PROFITS, LOSS OF USE, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR THE INDEMNITY OBLIGATIONS UNDER SECTION 8 OR FOR WILLFUL MISCONDUCT, EACH PARTY’S MAXIMUM AGGREGATE LIABILITY UNDER, ARISING OUT OF OR RELATING TO THIS AGREEMENT FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) SHALL NOT EXCEED THE FEES PAID BY CUSTOMER TO CYNAMICS DURING THE 12 MONTHS PERIOD PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM.
Consideration; Tax. Customer shall pay Cynamics the fee set forth in each Purchase Order (the “Fee“). Unless stated otherwise in the Purchase Order the Fees shall be due and payable in advance and shall be paid by wire transfer or credit card in accordance with the instructions of Cynamics against a valid tax invoice. Cynamics may suspend or discontinue Customer’s access to the Solution in the case of failure to pay the Fees on the date due. Any amounts payable to Cynamics by Customer that remain unpaid after the due date shall be subject to a late charge equal to 1.5% of the invoice amount per month from the due date until such amount is paid. Customer shall pay all collection fees, including legal expenses, with respect to the collection of late payments. All payments under this Agreement are non-refundable. All amounts payable to Cynamics are exclusive of all taxes, levies or similar governmental charges, however designated, except for taxes based on the net income of Cynamics. If under applicable law taxes are required to be withheld, Customer shall pay Cynamics an amount such that the net amount after withholding of taxes shall equal the amount that would have been otherwise payable under this Agreement.
Term; Termination. This Agreement commences on the date of the Purchase Order and unless agreed otherwise in the applicable Purchase Order shall continue in effect for the subscription period set forth in the Purchase Order. Each party may terminate the Agreement by giving thirty (30) days written notice prior to the expiry of the applicable subscription period. If Customer has elected to use the Solution on a trial basis, if applicable and if made available by Cynamics, upon expiration of such trial period if Customer has not executed a Purchase Order this Agreement will terminate. In addition, each party may terminate this Agreement by giving written notice to the other party if: (i) the other party materially breached this Agreement and fails to cure the breach within twenty one (21) days after being given written notice thereof; (ii) the other party is judged bankrupt or insolvent, makes a general assignment for the benefit of its creditors, a trustee or receiver is appointed for such party or any petition by or on behalf of such party is filed under any bankruptcy or similar laws. Upon termination or expiration of this Agreement for any reason whatsoever, (i) Cynamics may terminate Customer’s account on the Service and delete data stored in its systems; (ii) Customer will immediately cease use of the Solution; and (iii) unless termination is due to a material breach by Cynamics, all payments will be accelerated and become due and payable. Sections 2, 3, 5, 8, 10, 12 and 16 shall survive any expiration or termination of this Agreement.
Insurance. Cynamics agrees to obtain and maintain the insurance coverages as set forth in Exhibit A.
Beta Services. From time to time, Cynamics may invite Customer to try at no charge certain services of Cynamics that are not generally available to its customers (the “Beta Services”). Customer may accept or decline any such trial in its sole discretion. Beta Services will be clearly designated as beta, pilot, limited release, early adopter, developer preview, non-production, evaluation or by a description of similar import. Beta Services are for evaluation purposes and not for production use, are not considered the “Solution” under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of 3 months from the trial start date or the date that a version of the Beta Services becomes generally available. Cynamics may discontinue Beta Services at any time in its sole discretion and may never make them generally available. Cynamics will have no liability for any harm or damage arising out of or in connection with a Beta Service.
Subcontracting. Cynamics may subcontract or delegate the performance of certain obligations hereunder to any third party of its choosing, provided however, that Cynamics remains liable to the Customer for the performance of its obligations under this Agreement, unless specific terms apply.
Force Majeure. Notwithstanding anything to the contrary contained herein, neither party shall be liable for any delays or failures in performance resulting from acts beyond its reasonable control including, without limitation, acts of God, acts of war or terrorism, shortage of supply, breakdowns or malfunctions, interruptions or malfunction of computer facilities, or loss of data due to power failures or mechanical difficulties with information storage or retrieval systems, labor difficulties or civil unrest. Both Parties will use reasonable efforts to mitigate the effects of such events.
Miscellaneous. This Agreement sets forth the entire understanding between the parties with respect to the subject matter herein, and supersedes all prior and contemporaneous written agreements and discussions concerning the subject matter of this Agreement. This Agreement may be modified or amended only in writing, signed by the duly authorized representatives of both parties. In the case of conflict between the Agreement and Purchase Order, the Purchase Order shall prevail. Customer agrees that Cynamics may disclose the fact that Customer is a client of Cynamics. The relationship between the Parties hereto is strictly that of independent contractors, and neither party is an agent, partner, joint venturer or employee of the other. While this Agreement is in effect, the Customer grants Cynamics the right to reference Customer’s company name and logo in marketing materials and on Cynamics’ website, subject to Customer’s consent which shall not be unreasonably withheld. The failure of either party to enforce at any time the provisions of this Agreement shall not be interpreted to be a waiver of such provisions or of the right of such party to enforce each and every such provision. This Agreement is governed by and construed in accordance with the laws of the State of Delaware, without regard to the principles of conflict of laws. Any disputes arising out of or in connection with the Agreement shall be brought exclusively before the competent courts of Delaware. If any provision of this Agreement is determined to be void or unenforceable by a court of competent jurisdiction, such clause shall be interpreted as necessary to give maximum force to the provisions thereof, and the validity and enforceability of the remainder of this Agreement shall not be affected. All notices given under this Agreement shall be in writing and shall be deemed to have been duly given: when delivered, if delivered by messenger during normal business hours of the recipient; when sent, if transmitted by facsimile transmission during normal business hours of the recipient; or on the third business day following posting, if posted by international air mail. Customer may not transfer or assign its rights or obligations under this Agreement to any third party. Any purported assignment contrary to this section shall be void.