SOFTWARE AS A SERVICE AGREEMENT
PLEASE CAREFULLY READ THIS AGREEMENT (“AGREEMENT”) BEFORE CLICKING “I ACCEPT” OR IN ANY WAY USING THE APPLICATION AND SERVICES AND PLEASE BE ADVISED THAT BY USING THE APPLICATION AND SERVICES YOU EXPLICITLY AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT USE THE SERVICE AND CLICK ON THE “CANCEL” BUTTON.
- License Grant. Subject to your compliance with the terms and conditions of this Agreement, SecuriThings, Inc. (“SecuriThings“, “We“, “Us“) hereby grants to you a limited, revocable, non-exclusive, non-transferable and non-sublicensable (except as set forth herein) license to (i) install SecuriThings’ proprietary IoT device agents (the “Agents“) on such number of IoT devices, all as set forth in a Purchase Order signed by you and our reseller (the “Purchase Order“), including on IoT devices of your clients, for the purpose of monitoring the behavior such IoT devices (the “IoT Device“) to detect abnormal and malicious usage (the “Security Event”); (ii) use the technical specifications, user-guides, manuals, tutorials and other documentation provided by Us about the Technology (the “Documentation“) in connection with your authorized use of the Technology hereunder; and (iii) access SecuriThings’ online platform by your employees that have been allocated separate Login Details (as defined below) to view reports on the behavior of the IoT Devices (the “Reports”) as analyzed and recorded by SecuriThings’ Real-time behavioral monitoring solution (the “Platform”, and together with the Agents and the Documentation, collectively the “Technology”) (the “Authorized Users”) and use such Reports for your internal purposes only. Each Purchase Order incorporates by reference the terms of this Agreement unless explicitly noted otherwise in the Purchase Order. You agree that you may only install the Agents on IoT Devices that are supported by the Technology as notified by SecuriThings from time to time.
- Use Restrictions. You shall not yourself, or through any other party: (i) sell, lease, sublicense or distribute the Technology, or any part thereof, or otherwise transfer the Technology or allow any third party to use the Technology in any manner, except as explicitly set forth in this Agreement; (ii) use or permit the use of Agents on more than such number of IoT Devices agreed upon in a Purchase Order; (iii) reverse engineer, decompile, disassemble or otherwise reduce to human-perceivable form the Technology’s source code; (iv) modify, revise, enhance, make derivative works of or alter the Technology; (v) copy or allow copies of the Technology to be made, except with respect to Agents and only to the extent necessary for installation on such number IoT devices as set forth in a Purchase Order; (vi) remove, deface, obscure or otherwise modify any copyright or other proprietary notices included on or in the Technology; (vii) develop methods to enable unauthorized parties to use the Technology, or to develop any other Technology containing any of the concepts and ideas contained in the Technology; (viii) work around any technical limitations in the Technology, or use any tool to enable features or functionalities that are otherwise disabled in the Technology; (ix) collect, harvest, obtain or process information about the Technology itself, or about other users of the Technology other than as set forth in this Agreement; (x) perform any form of scraping, probing, robotic navigating, bulk extracting or hacking of the Technology; (xi) breach or attempt to breach the security of the Technology or identify any security vulnerabilities in the Technology; (xii) use the Technology for any unlawful purpose, or one that could associate SecuriThings with any improper or inappropriate purpose (including infringement or misappropriation of any third party intellectual property, privacy, or publicity right); and/or (xiii) represent that you possesses any proprietary interest in the Technology.
- Authorized Users. In order to access and use the Platform, each respective Authorized User will be provided a unique user name and password (“Login Details”) to login and access the Platform. You must not allow anyone other than the respective Authorized User to access and use the Authorized User’s Login Details and you shall ensure that the Authorized Users shall comply with the above restriction. You shall: (i) keep, and ensure that each Authorized User keeps, all Login Details secure at all times; (ii) remain solely liable for the activity that occurs on or in connection with any use of the Platform through the Login Details; (iii) ensure that the Login Details for each Authorized User are only used by that Authorized User, and that multiple people may not share the same Login Details; and (iv) promptly notify SecuriThings in writing if you become aware of any unauthorized access or use of Login Details or the Platform.
- Documentation. You may use the Documentation for your internal business purposes only and solely in connection with its use of the Technology. You may print or copy the Documentation as needed for its own internal business purposes provided that all copyright notices are included therein. The Documentation shall be considered the Confidential Information of SecuriThings.
- Services; Updates
- Training and Support Services. SecuriThings will provide initial training (via online video), technical support for questions, problems and inquiries regarding the Technology, in accordance with SecuriThings standard training program.
- Managed Services. SecuriThings will assist you in (i) creating and tailoring Platform alerts to specific security events detected by the Technology; (ii) creating flexible focused rule-based policies for mitigation of security threats; and (iii) creating a redemption plan for security threats detected by the Platform. Such services will be provided by SecuriThings in coordination with you as mutually agreed by the parties.
- Updates. SecuriThings may remotely send and automatically install updates, upgrades, code modifications, enhancements, bug fixes, improvements, and any other form of code or settings changes in, or to, all or part of the Technology (each an “Automated Update”).
- Ownership and Intellectual Property
- Ownership of Technology. All rights, title and interest in and to the Technology, including, patents, copyrights, trademarks, trade names, service marks, trade secrets and other intellectual property rights, and any goodwill associated therewith, are solely owned by or licensed to SecuriThings, including any derivative works, enhancements, improvements, modifications, revisions, extensions and updates of the Technology. The Technology is licensed and not sold under this Agreement. Nothing in this Agreement shall constitute a waiver of SecuriThings’ intellectual property rights under any law, or be in any way construed or interpreted as such. Other than the rights explicitly granted in this Agreement, you shall have no other rights, express or implied, in the Technology. SecuriThings reserves all rights not expressly granted herein to the Technology.
- Feedback. To the extent you provide SecuriThings suggestions, comments or feedback (whether orally or in writing) with respect to the Technology (the “Feedback”), you acknowledge that any and all rights, including intellectual property rights in such Feedback shall belong exclusively to SecuriThings and that such shall be considered SecuriThings’ Confidential Information. You hereby irrevocably transfer and assign to SecuriThings all intellectual property rights in such Feedback and waives any and all moral rights that you may have in respect thereto. It is further understood that use of Feedback, if any, may be made by SecuriThings at its sole discretion, and that SecuriThings in no way shall be obliged to make use of any kind of the Feedback or part thereof.
- Warranty Disclaimer
- DISCLAIMER . EXCEPT AS EXPLICITY SET FORTH IN THIS AGREEMENT: (I) THE TECHNOLOGY, SERVICES AND REPORTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, (II) SECURITHINGS HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, REPRESENTATIONS AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING BY STATUTE OR FROM A COURSE OF DEALING OR USAGE OF TRADE. SECURITHINGS DOES NOT WARRANT THAT THE TECHNOLOGY WILL OPERATE UNINTERRUPTED OR ERROR-FREE, OR THAT IT WILL ALWAYS BE AVAILABLE, FREE FROM ERRORS OR OMISSIONS, MALFUNCTIONS, BUGS OR FAILURES, INCLUDING HARDWARE FAILURES, SOFTWARE FAILURES AND SOFTWARE COMMUNICATION FAILURES. SECURITHINGS SHALL NOT BE HELD RESPONSIBLE FOR, ANY CONSEQUENCES TO YOU OR ANY THIRD PARTY THAT MAY RESULT FROM TECHNICAL PROBLEMS INCLUDING WITHOUT LIMITATION IN CONNECTION WITH THE INTERNET (SUCH AS SLOW CONNECTIONS, TRAFFIC CONGESTION OR OVERLOAD OF OUR OR OTHER SERVERS), IOT DEVICES OR ANY TELECOMMUNICATIONS OR INTERNET PROTOCOLS OR PROVIDERS. YOUR USE OF AND RELIANCE UPON THE TECHNOLOGY AND REPORTS ARE AT YOUR SOLE DISCRETION AND RISK
- Reports and Licensee Data . You acknowledge that the quality and accuracy of the Reports are based and dependent upon the accuracy, completeness, quality and suitability of the Licensee Data that it applies to or processes through the Technology.
- Exclusions. Applicable law may not allow the exclusion of certain warranties, so to that extent such exclusions may not apply.
- LIMITATION OF LIABILITY
EXCEPT FOR A BREACH OF SECTIONS 2.2, AND 7: (I) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, EXEMPLARY, STATUTORY, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF BUSINESS, LOSS OF REPUTATION, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, INABILITY TO USE THE PLATFORM OR RELIANCE UPON THE REPORTS, WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (II) SECURITHINGS’ ENTIRE LIABILITY ARISING FROM THIS AGREEMENT WILL NOT EXCEED THE AMOUNT PAID BY YOU TO SECURITHINGS HEREUNDER DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT PURPORTEDLY GIVING RISE TO THE LIABILITY.
- SecuriThings Indemnity. SecuriThings shall, at its expense, defend and hold you harmless from and against any action, claim, suit or proceeding (“Claim”) and shall indemnify you for all costs, liabilities, damages and reasonable attorney’s fees finally awarded against you by a court of competent jurisdiction or paid by you in settlement of such Claim, solely to the extent such Claim arises from a third party claim alleging that the Technology, when used as permitted by SecuriThings and in conformity with the Documentation, infringes any valid copyright, patents, trademarks or trade secrets of a third party, provided such amounts awarded must actually be paid and any settlement of any such Claim has been agreed to by SecuriThings. SecuriThings’ indemnity obligation shall not extend to Claim based on: (i) an unauthorized modification or use of the Technology made by any third party other than SecuriThings, where the Technology, without such modification or unauthorized use, would not be infringing; (ii) the combination of non-infringing items with any items not supplied by SecuriThings, where the Technology, without such combination, would not be infringing; (iii) your use of any version which is not the latest available version of the Technology; (iv) any use of the Technology, outside the scope of the license granted herein, or contrary to the provisions of this Agreement; or (v) the Reports.
- Indemnification Procedure. The foregoing indemnification obligations are dependent upon the party seeking indemnification (“Indemnitee”) providing the indemnifying party (“Indemnitor”) with (i) prompt written notice of any indemnifiable claim; (ii) all reasonable assistance and cooperation in the defense of such indemnifiable claim and any related settlement negotiations, at the Indemnitor’s expense; and (iii) exclusive control over the defense of such indemnifiable claim and any related settlement negotiations. Indemnitee will not settle or compromise any such claim without the Indemnitor’s prior written consent, which will not be unreasonably withheld or delayed. The Indemnitee will have the right, at its own expense, to participate in the defense (and related settlement negotiations) of any indemnifiable claim with counsel of its own selection. If the Technology or part thereof becomes, or in SecuriThings’ opinion may become, subject to any claim of infringement as set forth above and its use is thereby enjoined, SecuriThings’ sole liability shall be, at SecuriThings’ option, to either: (a) procure for you the right to continue using the Technology; (b) replace or modify the Technology, so that it is non-infringing; or (c) terminate this Agreement and reimburse you with any amount pre-paid by you for the remaining unused period of the license, upon the return or destruction (and certification of destruction) of the Technology. This Section states SecuriThings’ entire liability, and your exclusive remedy, for claims of alleged or actual infringement.
- Confidential Information. Each party (the “Disclosing Party”) may from time to time during the Term, disclose to the other party (the “Receiving Party”) certain information regarding the Disclosing Party’s business, including technical, marketing, financial, employee, planning and other confidential or proprietary information (“Confidential Information”). The Disclosing Party will mark all Confidential Information in tangible form as “confidential” or “proprietary” or with a similar legend. The Disclosing Party will identify all Confidential Information disclosed orally as confidential at the time of disclosure. Notwithstanding the foregoing and regardless of whether so marked or identified, any information that the Receiving Party knew or should have known, under the circumstances, was considered confidential or proprietary by the Disclosing Party, will be considered Confidential Information of the Disclosing Party. For clarity, any information related to the Technology including the Reports shall be deemed as SecuriThings’ Confidential Information.
- Protection of Confidential Information. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a written duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder; and in any event the Receiving Party shall assume full responsibility for any breach of this Agreement caused by any such employees or contractors. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
- Exceptions. The Receiving Party’s obligations under this Section 8 with respect to any Confidential Information of the Disclosing Party shall not apply to and/or shall terminate if and when the Receiving Party can document that such information: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) was disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) was independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is: (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by law or by the order or a court of similar judicial or administrative body; provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
- Injunctive Relief. The parties acknowledge that unauthorized disclosure or use of Confidential Information may give rise to irreparable injury, which may not be adequately compensated by damages. As such, any breach or threatened breach of this Agreement by the receiving party shall entitle the Disclosing Party to seek specific performance or injunctive relief (as appropriate) as a remedy for any breach or threatened breach thereof, in addition to any other remedies available at law or in equity.
- Use of Data
Licensee Data. You shall retain all right, title and interest in and to any data collected from the IoT Devices and processed through the Technology (the “Licensee Data”), including all intellectual property rights therein. You acknowledge and agree that SecuriThings may use, store and retain the Licensee Data in connection with providing the Technology and the Services pursuant to this Agreement. You are solely responsible for the Licensee Data and the provision of the Licensee Data to SecuriThings hereunder, including, but not limited to: (a) compliance with all applicable laws, including, without limitation, providing notice of and disclosing your privacy policies and practices to data subjects and obtaining all necessary consents for SecuriThings’ use of the Licensee Data in connection with this Agreement; (b) any claims relating to the Licensee Data including claims that you or the Licensee Data infringe, misappropriate, or otherwise violate the rights of any third party; and (c) backing up and maintaining the Licensee Data. Upon termination of this Agreement for any reason, SecuriThings shall destroy and delete and Licensee Data in its possession at such time.
- Branding and Publicity
Each party may use the other party’s name, logo and trademark in its promotional and marketing materials, including customer lists, websites and other promotional activities subject to the prior written approval of the other party.
- Government Use
If you are part of an agency, department, or other entity of the United States Government (“Government”), the use, duplication, reproduction, release, modification, disclosure or transfer of the Technology may restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The Technology is a “commercial item”, “commercial computer Technology” and “commercial computer Technology documentation” as such terms are used in FAR Part 12.212, and DFARS Part 227.7202 and 252.7014(a) and their successors. In accordance with such provisions, any use of the Technology by the Government shall be governed solely by the terms of this Agreement.
- Export Laws
You agree to comply fully with all applicable export laws and regulations to ensure that neither the Technology nor any technical data related thereto are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations.
- Governing Law. This Agreement shall be governed by the laws of the State of New York, without reference to its conflict of laws rules. The parties agree that exclusive jurisdiction for any dispute arising out of or relating to this Agreement lies within the New York City, State of New York.
- Waiver. No waiver of rights arising under this Agreement shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. No failure or delay by either party in exercising any right, power or remedy under this Agreement shall operate as a waiver of any such right, power or remedy and/or prejudice any rights of such party.
- Entire Agreement. The parties have read this Agreement, and agree to be bound by its terms, and further agree that it constitutes the complete and entire agreement of the parties and supersedes all previous communications between them, oral or written, relating to the subject matter hereof. No representations or statements of any kind made by either party that are not expressly stated herein shall be binding on such party.