Last updated June 6, 2022
THIS API SPYDER END USER SOFTWARE-AS-A-SERVICE AGREEMENT GOVERNS YOUR USE OF OUR API SPYDER SERVICES. CEQUENCE PERMITS YOU TO PURCHASE, ACCESS, AND/OR USE API SPYDER SERVICES ONLY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
IF YOU REGISTER FOR A FREE TRIAL OF API SPYDER SERVICES OR OTHERWISE TRIAL, UNLESS OTHERWISE PROVIDED HEREIN.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, USING API SPYDER SERVICES, OR EXECUTING THIS AGREEMENT OR AN ORDER FORM THAT REFERENCES THIS AGREEMENT OR RELATES TO THE SERVICES, YOU AGREE TO THE TERMS OF THIS AGREEMENT, INCLUDING ALL TERMS INCORPORATED BY REFERENCE. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
You may not access API Spyder Services or request information from our API Spyder Services if you are a direct competitor of Cequence, except with our prior written consent. In addition, you may not access API Spyder Services for purposes of monitoring their availability, performance, or functionality, or for any other competitive purposes.
This Agreement was last updated as of the date above. It is effective between you and Cequence as of the earlier of: (a) the date you accept this Agreement or (b) the date you first access or otherwise use API Spyder Services.
1.1. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.2. “Agreement” means this API Spyder End User Software-as-a-Service Agreement.
1.3. “API” means an application programming interface.
1.4. “API Spyder Services” means Cequence’s software-as-a-service that makes its proprietary API Spyder software commercially available as a service offering, together with updates, new releases, and new versions, and any Documentation provided therewith.
1.5. “Applicable Data Privacy Laws” means the data privacy and security laws of the relevant jurisdiction, including but not limited to the European Union’s General Data Protection Regulation 2016/679 (“GDPR”) and the California Consumer Privacy Act (“CCPA”).
1.6. “Basic Support” means, with respect to Purchased Services, i) access to online help within the API Spyder software, ii) access to knowledgebase articles within Cequence’s support portal for API Spyder Services, and (iii) access to assistance from Cequence’s customer success team through one or more support tickets that Customer may create within Cequence’s support portal. For the avoidance of doubt, Cequence does not guarantee support ticket response or resolution times as part of Basic Support and does not commit to provide Basic Support in connection with free trials.
1.7. “Beta Services” means certain features, technologies, and services that are not generally available to customers, as updated from time to time.
1.8. “Cequence,” “we,” or “us” means Cequence Security, Inc.
1.9. “Customer,” “you” or “your” means the company, organization, or other legal entity that is entering into this Agreement with Cequence.
1.10. “Customer API Reports” means the reports, analyses, and other output generated by API Spyder Services through examination and analysis of your Customer External APIs.
1.11. “Customer External APIs” means, collectively, the APIs that Customer exposes to the public internet as part of its public-facing websites, web applications, or otherwise.
1.12. “Customer API Data” means the electronic data and information submitted by or for Customer to API Spyder Services or collected and processed by or for Customer as a result of your use of API Spyder Services.
1.13. “Documentation” means the documentation and API Spyder Service feature descriptions, whether online or otherwise and as updated from time to time, as provided by Cequence.
1.14. “Disruption Event” means either: (a) a User’s use of API Spyder Services which could disrupt: (i) API Spyder Services; (ii) other customers’ use of API Spyder Services; or (iii) any Cequence or third-party hosting infrastructure used to provide API Spyder Services; or (b) unauthorized third-party access to API Spyder Services.
1.15. “Generic Reports” means reports that may include Customer API Data and information contained in Customer API Reports in an anonymous, generic, de-identified format aggregated with similar data from other Cequence API Spyder Services customers.
1.16. “Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs, and trojan horses.
1.17. “Order Form” means a purchase order, quote, online subscription, or other ordering document specifying the Services to be provided hereunder that is entered into between (a) Customer and (b) Cequence or any of Cequence’s Affiliates or Resellers, including any addenda and supplements thereto. For the avoidance of doubt, Customer’s subscription confirmation on the Cequence website shall be considered an “Order Form” for purposes hereof.
1.18. “Personal Information” means information relating to an identified or identifiable natural person.
1.20. “Purchased Services” means API Spyder Services that Customer purchases under an Order Form, as distinguished from those provided pursuant to a free trial.
1.21. “Reseller” means one of Cequence’s preferred partner resellers through whom Customer purchases the Services.
1.22. “Subscription Term” means the period of time during which Users are permitted to use the Services hereunder, as specified in the applicable Order Form and including all renewals or extensions thereof.
1.23. “Suspend” or “Suspension” means the immediate disabling of access to the Services, or components of the Services, as applicable, to prevent further use of the Services.
1.24. “User” means an individual who is authorized by Customer to use one or more API Spyder Services and to whom Customer (or Cequence at your request) has supplied a user identification and password. Users may include, for example, your employees, consultants, contractors, and agents.
2. FREE TRIAL. If Customer registers on the Cequence website for a free trial or otherwise utilizes the functionality of API Spyder Services for free, Cequence will make one or more API Spyder Services available to Customer on a trial basis, free of charge, until the earlier of (a) the end of the free trial period for which Customer registered to use the applicable API Spyder Service(s), or (b) the start date of any Purchased Service subscriptions ordered by Customer for such API Spyder Service(s). CUSTOMER API DATA ON CEQUENCE SYSTEMS OR IN OUR POSSESSION OR CONTROL AND ANY CUSTOMER API REPORTS GENERATED BY THE API SPYDER SERVICES DURING YOUR FREE TRIAL MAY BE PERMANENTLY LOST OR DELETED AT THE END OF THE FREE TRIAL PERIOD UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME API SPYDER SERVICES AS THOSE COVERED BY THE TRIAL OR PURCHASES UPGRADED API SPYDER SERVICES BEFORE THE END OF THE TRIAL PERIOD. CEQUENCE WILL HAVE NO LIABILITY FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH A FREE TRIAL. NOTWITHSTANDING SECTION 8 (REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES, AND DISCLAIMERS), DURING THE FREE TRIAL API SPYDER SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY. Please review the Documentation during the trial period so that you become familiar with the features and functions of API Spyder Services before you make your purchase.
3. CEQUENCE RESPONSIBILITIES
3.1. Provision of Purchased Services. Cequence will (a) make the Purchased Services available to Customer pursuant to this Agreement and the applicable Order Form, and (b) use commercially reasonable efforts to provide Basic Support for the Purchased Services to Customer at no additional charge. Notwithstanding the foregoing, the Purchased Services may not be available due to: (i) planned downtime (of which Cequence shall give advanced electronic notice through the Services or otherwise and which Cequence shall schedule to the extent practicable during the weekend hours), and (ii) circumstances beyond our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, pandemic, epidemic, quarantine restriction, strike or other labor problem, Internet service provider failure or delay, the failure or delay of software applications and services not provided by Cequence, or for denial of service attack. Cequence reserves the right to make changes to its API Spyder Services at any time and from time to time, provided, however, that Cequence will not materially decrease the functionality of your Purchased Services during a Subscription Term. Customer’s sole and exclusive remedy for any alleged failure by Cequence to provide Basic Support for the Purchased Services with commercially reasonable skill, care and diligence shall be re-performance of the applicable Basic Support.
3.2. Protection of Customer API Data and Customer API Reports. Cequence will maintain industry-standard administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of API Spyder Services and the Customer API Data and Customer API Reports. Those safeguards will include, but will not be limited to, safeguards to ensure the security of the information technology systems used to provide API Spyder Services, maintaining and testing (at least annually) an incident management program, and measures for preventing inappropriate access, use, modification or disclosure of Customer API Data or Customer API Reports by Cequence personnel. Cequence will promptly inform Customer following discovery of any breach of security, confidentiality, and/or integrity of API Spyder Services, Customer API Data, Customer API Reports affecting Customer.
3.3. Beta Services. From time to time, Cequence may invite Customer to try Beta Services at no charge. Customer may accept or decline any such trial in its sole discretion. Beta Services will be clearly designated as beta, pilot, limited release, 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 “API Spyder Services” 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 date that a version of the Beta Services becomes generally available. Cequence may discontinue Beta Services at any time in its sole discretion and may never make them generally available. CEQUENCE WILL HAVE NO LIABILITY FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH A BETA SERVICE. NOTWITHSTANDING SECTION 8 (REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES, AND DISCLAIMERS), BETA SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
4. USE OF SERVICES
4.1. Subscriptions. Unless otherwise provided in the applicable Order Form, (a) API Spyder Services are purchased as subscriptions, (b) subscriptions may be upgraded during a Subscription Term, with the fees for such upgraded subscription(s) to be prorated for the portion of that Subscription Term remaining at the time the mid-term subscriptions are added, and (c) any upgraded subscriptions will terminate on the same date as the Subscription Term, subject to any automatic renewals that may apply as set forth below in Section 11.2 below.
4.2. Usage Limits. API Spyder Services are in some cases subject to domain-based usage limits specified in the applicable Order Form(s). If Customer exceeds its then-current contractual usage limit as set forth in the relevant Order Form, Customer may incur additional fees for excess usage if it does not reduce its overuse within ten (10) days after notice from Cequence. If Customer fails to reduce its overuse within such ten (10) day period, (i) Customer shall remit payment in accordance with Section 5 (Fees and Payment) and (ii) Customer’s then-current contractual usage limit will automatically be increased to the minimum higher usage tier that corresponds to excess usage for the remainder of the Subscription Term and thereafter (if applicable).
4.3. Customer Responsibilities. Customer will (a) be responsible for Users’ compliance with this Agreement and for all activities that occur through Users’ use of API Spyder Services, (b) be responsible for the accuracy, quality and legality of Customer API Data, including any obtaining all required consents or rights required to use Customer API Data, (and c) to prevent unauthorized access to or use of API Spyder Services (including not sharing any User passwords), and notify Cequence promptly of any such unauthorized access or use.
4.4. Usage Restrictions. Customer will not (a) use any API Spyder Service to crawl or analyze any API, website, web domain, or web application that is not owned and controlled by Customer, (b) make any API Spyder Service available to, or use any API Spyder Service for the benefit of, anyone other than Customer or Users, including any part, feature, function or output of an API Spyder Service, (c) sell, resell, license, sublicense, distribute, rent or lease any API Spyder Service or any part, feature, function or output thereof (e.g., reports, screenshots), or include any API Spyder Service in a service bureau or outsourcing offering, (d) use an API Spyder Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (e) use an API Spyder Service to store or transmit Malicious Code, (f) use an API Spyder Service in violation of this Agreement, applicable laws or government regulations, or form otherwise fraudulent or malicious purposes, (g) interfere with or disrupt the integrity or performance of any API Spyder Service or third-party data contained therein, (h) attempt to gain unauthorized access to any API Spyder Service or its related systems or networks, (i) use or permit direct or indirect access to or use of any API Spyder Service in a way that circumvents a contractual usage limit, (j) publish, display, or copy (provided that Customer and its Users can copy as reasonably necessary to its and their rights under this Agreement and in connection with ordinary course back-up and disaster recovery procedures) an API Spyder Service or any part, feature, function, output, or user interface thereof (this includes a prohibition on any publication of ratings, scores, reports or components thereof), (k) remove any legal, copyright, trademark or other proprietary rights notices contained in or on materials Customer receives or accesses through API Spyder Services; (l) frame or mirror any part of any API Spyder Service, other than framing on your own intranets or otherwise for your own internal business purposes or as permitted in this Agreement, (m) access any API Spyder Service in order to build a competitive product or service or use an API Spyder Service in a way that competes with products or services offered by Cequence, or (n) copy, adapt, reformat, reverse-engineer, disassemble, decompile, download, translate or otherwise modify any API Spyder Service or Cequence’s website, through automated or other means.
4.5.2. To the extent Customer provides personal information to Cequence, Customer represents that it has complied with all Applicable Data Privacy Laws concerning its collection and disclosure of such information, and that it is not relying upon Cequence to discharge any of customer’s obligations or responsibilities under Applicable Data Privacy laws.
4.5.3. With respect to the personal information that it receives from Customer or Users, Cequence represents that it has and will independently comply with all obligations imposed by Applicable Data Privacy upon controllers, that it will not consider itself to be a joint controller with Customer, and that it will not rely upon Customer to perform any of Cequence’s obligations as a controller.
4.6. Suspension. If Cequence becomes aware of a User’s violation of this Agreement, then Cequence may specifically request that Customer Suspend that User’s use of API Spyder Services. If Customer fails to comply with our request to Suspend a User’s use of API Spyder Services, then Cequence may Suspend that User’s use of API Spyder Services. The duration of any Suspension by Cequence will be until the applicable User has cured the breach that caused the Suspension. Notwithstanding the foregoing, if there is a Disruption Event, then Cequence may automatically Suspend the offending use. In such event, Cequence will use commercially reasonable efforts to minimize the extent of the Suspension amount of time required to prevent or terminate the Disruption Event. If Cequence Suspends a User’s use of the Services for any reason without prior notice to Customer, then at your request, Cequence will provide Customer with the reason for the Suspension as soon as is reasonably possible.
5. FEES AND PAYMENT FOR PURCHASED API SPYDER SERVICES
5.1. Reseller Purchases. If Customer purchases API Spyder Services through a Reseller, all payment-related terms (including, but not limited to, pricing, invoicing, billing, payment methods, and late payment charges) will be set forth in Customer’s agreement directly with such Reseller and such payment-related terms will supersede any conflicting terms set forth in this Section 5. Cequence may suspend or terminate your access to the Services in the event of non-payment of the applicable fees to Cequence by the Reseller due to your non-payment, or Customer’s uncured breach of this Agreement. Notwithstanding anything to the contrary, the agreement between Customer and a Reseller: (i) shall not modify any of the terms set forth herein other than Sections those portions of Section 5 related to billing and payments, and (ii) is not binding on Cequence.
5.2. Fees. Customer will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form, (i) fees are based on the API Spyder Service purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable except as set forth in Section 11.4 below, and (iii) where Cequence offers multiple pricing tiers, once an Order Form has been completed and executed fees cannot be reduced during a Subscription Term by downgrading to a lower pricing tier.
5.3. Invoicing and Payment. Fees shall be invoiced in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. Unless otherwise stated in the Order Form, invoiced charges are due upon receipt of such invoice and payable net thirty (30) from the invoice date. Any payments not made within thirty (30) days of the receipt of such invoice shall accrue interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower. Customer is responsible for providing complete and accurate billing and contact information to Cequence and notifying Cequence of any changes to such information. Customer acknowledges and agrees that Cequence may engage third-party payment processors to process online payments made by Customer hereunder, and that such payment processors will be provided your payment information in order to help us process your payment.
5.4. Overdue Charges. If any undisputed invoiced amount is not received by Cequence thirty (30) days after the invoice date, then without limiting our rights or remedies (a) Cequence may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 5.3 (Invoicing and Payment), and/or (b) Cequence may require Customer to pay all reasonable collections or legal fees incurred by Cequence in order to collect payment of the corresponding undisputed invoiced amount.
5.5. Suspension of Service and Acceleration. If any amount owing by Customer under this or any other agreement for Purchased Services is thirty (30) or more days overdue, Cequence may, without limiting other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Services to Customer until such amounts are paid in full. Cequence will give Customer at least 10 days’ prior notice, in accordance with Section 12.1 , before Suspending Services to Customer pursuant to the foregoing.
5.6. Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If Cequence has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 5.6, Cequence will invoice Customer and Customer will pay that amount unless Customer provides Cequence with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Cequence is solely responsible for taxes assessable against Cequence based on our income, property, and employees.
5.7. Future Functionality. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Cequence regarding future functionality or features.
6. PROPRIETARY RIGHTS AND LICENSES
6.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, Cequence reserves all of its right, title, and interest in and to the Services and any proprietary materials of Cequence contained therein, including all intellectual property rights therein and thereto, and Customer acquires no rights with respect to API Spyder Services, by implication or otherwise, except for those expressly granted in this Agreement. Customer reserves all of Customer’s rights, title and interest in Customer API Data and Customer API Reports, provided that Cequence may use Customer API Data and Customer API Reports to create Generic Reports and as provided in Section 6.2 below. No rights are granted to Customer hereunder other than as expressly set forth herein.
6.3. License by Customer to Use Feedback. Customer grants to Cequence a worldwide, perpetual, irrevocable, transferable, royalty-free license to use and incorporate into API Spyder Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users relating to the operation of API Spyder Services, provided that Cequence shall not identify Customer as the source of such feedback.
7.1. Definition of Confidential Information. “Confidential Information” means all information and materials disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Cequence Confidential Information includes the API Spyder Services and any proprietary materials provided through the API Spyder Services; Customer Confidential Information includes Customer API Reports and other output generated for Customer by API Spyder Services; and Confidential Information of each party includes any proprietary pricing Customer might receive as a quote, offer, or in an Order Form, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party as shown by documents and other competent evidence in the Receiving Party’s possession.
7.2. Protection of Confidential Information. The Receiving Party will (i) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care), (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, disclose Confidential Information of the Disclosing Party only to those of its employees, officers, advisors, contractors, and agents and its Affiliates’ employees, officers, advisors, contractors, and agents who need that access for purposes consistent with this Agreement and who are subject to confidentiality obligations consistent with this Agreement. Receiving Party is fully responsible for the compliance of its employees, officers, advisors, contractors, and agents and its Affiliates’ employees, officers, advisors, contractors, and agents with the terms of this Section 7. Notwithstanding the above, Cequence shall be permitted to use Customer API Data and Customer API Reports as set forth in Section 6.2, subject to the limitations set forth therein.
7.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law or by the order of a court or similar judicial or administrative body to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
8. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES, AND DISCLAIMERS
8.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so. Customer further represents that the individual entering into this Agreement has the right, power, and authority to enter into this Agreement on behalf of Customer.
8.2. Cequence Warranties. Cequence warrants that: (a) the Purchased Services will perform materially in accordance with the specifications set forth in the Documentation and (b) Cequence has used commercially reasonable efforts to detect and prevent the introduction of Malicious Code into API Spyder Services. For any breach of the above warranties, Customer’s exclusive remedy and Cequence’s sole obligation is those described in Sections 11.3 (Termination) and 11.4 (Refund or Payment upon Termination).
8.3. Mutual Warranties. Each party warrants that it will comply with all laws and regulations applicable to its provision or use of API Spyder Services, as applicable (including applicable security breach notification law).
8.4. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
9. MUTUAL INDEMNIFICATION
9.1. Indemnification by Cequence. Subject to Sections 9.2 and 9.3, Cequence will (i) defend and/or settle at its own expense any action brought against Customer by a third party, to the extent that such action is based on a claim that a Purchased Service infringes such third party’s U.S. patents or Berne Convention copyrights, and (ii) indemnify Customer for those costs and damages finally awarded against Customer in any such action that are attributable to such claim, or those costs and damages agreed to in a monetary settlement of such claim. The foregoing obligations are conditioned on Customer: (a) promptly providing Cequence with written notice of any claim; (b) giving Cequence sole control of the defense thereof and any related settlement negotiations; and (c) cooperating and, at Cequence’s request and expense, assisting in such defense. Customer may, at its expense, participate in such defense if it chooses. Cequence will not reimburse Customer for any expenses incurred by Customer without the prior written approval of Cequence.
9.2. Infringement Remedy. If a Purchased Service becomes, or in Cequence’s opinion is likely to become, the subject of an infringement claim that Cequence is required to defend pursuant to Section 9.1, Cequence may (at its option and expense) either (i) procure for Customer the right to continue using the affected Purchased Service, or (ii) modify the non-conforming Purchased Service so that it becomes non-infringing. In the event Cequence is unable to do that which is specified in subsections (i) or (ii), Cequence may terminate Customer’s subscription to the Purchased Service and issue a pro-rated refund of any prepaid fees associated with the remainder of the Subscription Term. SECTIONS 9.1 AND 9.2 STATE CEQUENCE’S ENTIRE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR CLAIMS AND ACTIONS RELATED TO INFRINGEMENT, MISAPPROPRIATION OR VIOLATION OF ANY INTELLECTUAL PROPERTY OR OTHER PROPRIETARY RIGHTS.
9.3. Exclusions to Cequence Indemnification Obligations. Notwithstanding the foregoing, Cequence will have no obligation under this Section 9 or otherwise with respect to any infringement claim to the extent based upon: (i) any use of API Spyder Services not in accordance with this Agreement or the Documentation; (ii) any modification of API Spyder Services by any person or entity other than Cequence; (iii) any use of an API Spyder Service in combination with other products, software or data not provided by Cequence (other than Customer API Data); (iv) any intellectual property owned or licensed by Customer (other than Purchased Services); or (v) open source software.
9.4. Indemnification by Customer. Customer will defend and/or settle at its own expense any action brought against Cequence by a third party arising from or relating to: (i) any use of API Spyder Services to crawl or analyze any API, website, web domain, or web application that is not owned and controlled by Customer; (ii) any Customer API Data or use thereof as contemplated hereunder that infringes any intellectual property or privacy rights; (iii) any use of API Spyder Services not in accordance with this Agreement or the Documentation; or (iv) any modification of API Spyder Services by any person or entity other than Cequence. Further, Customer will indemnify Cequence for those costs and damages finally awarded against Cequence in any such action that are attributable to such claim, or those costs and damages agreed to in a monetary settlement of such claim. The foregoing obligations are conditioned on Cequence: (a) promptly providing Customer with written notice of any claim; (b) giving Customer sole control of the defense thereof and any related settlement negotiations; and (c) cooperating and, at Customer’s request and expense, assisting in such defense.
9.3. Exclusive Remedy. This Section 9 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 9.
10. LIMITATION OF LIABILITY
10.1. Limitation of Liability. EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9 AND CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 5, NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT OR SERIES OF RELATED INCIDENTS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT OR SERIES OF RELATED INCIDENTS, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
10.2. Exclusion of Consequential and Related Damages. EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS OR GOODWILL), WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
11. TERM AND TERMINATION
11.1. Term of Agreement. This Agreement commences on the Effective Date set forth on the signature page and continues for so long as Cequence is providing Services.
11.2. Term of Purchased Subscriptions; AUTO-RENEWAL OF SUBSCRIPTION TERM. The Subscription Term shall be, and shall renew, as specified in the applicable Order Form. If no such term or renewal period is specified, Subscriptions will have an initial term of one year and will automatically renew for additional periods equal to the expiring Subscription Term or one (1) year (whichever is shorter), unless either party gives the other notice of non-renewal at least sixty (60) days before the end of the relevant Subscription Term in accordance with Section 12.1.
11.3. Termination. A party may terminate this Agreement or any Order Form (i) thirty (30) days after providing written notice to the other party of a material breach of its obligations under this Agreement or the relevant Order Form if such breach remains uncured at the expiration of such 30-day period, (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, or (iii) upon ten (10) days’ written notice to the other party if the other party is in material breach of this Agreement more than two (2) times notwithstanding any cure of such breaches.
11.4. Refund or Payment upon Termination. If this Agreement is terminated by Customer for material uncured breach in accordance with Section 11.3(i) or (iii), Cequence will refund Customer any prepaid fees covering the remainder of the Subscription Term of all Order Forms after the effective date of termination. If this Agreement is terminated by Cequence in accordance with Section 11.3, Customer will pay any unpaid fees covering the remainder of the Subscription Term of all Order Forms. In no event will termination relieve Customer of its obligation to pay any fees payable to Cequence for the Subscription Term period prior to the effective date of termination.
11.5. No Obligation to Retain Data. After the effective date of termination or expiration of this Agreement, Cequence will have no obligation to maintain or provide Customer API Data or Customer API Reports, and may, in its sole discretion, delete or destroy all copies of Customer API Data and Customer API Reports in our systems or otherwise in our possession or control, unless legally prohibited.
11.6. Surviving Provisions. The Sections that are intended by their nature to survive termination or expiration shall so survive any termination or expiration of this Agreement.
12. NOTICES, GOVERNING LAW AND JURISDICTION
12.1. Manner of Giving Notice. All notices, permissions, and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, or (iii) the first business day after sending by email (provided email shall not be sufficient for notices of an indemnifiable claim). Notices to Cequence shall be addressed to Cequence Security, Inc., Attn: General Counsel; 100 S. Murphy Avenue, Suite 300, Sunnyvale, CA 94086; with copy to firstname.lastname@example.org. Billing-related notices to Customer shall be addressed to the relevant billing contact designated by Customer. All other notices to Customer shall be addressed to the relevant API Spyder Services system administrator designated by Customer, in writing, by like notice.
12.2. Agreement to Governing Law and Jurisdiction. This Agreement will be governed by the laws of the State of California in the United States of America, as such laws apply to contracts between California residents negotiated, executed and performed entirely within California. The Uniform Computer Information Transactions Act (UCITA) and the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement must be brought exclusively in a federal court in the Northern District of California or in state court in Santa Clara County, California, and each party irrevocably submits to the exclusive personal jurisdiction and venue of any such court in any such action or proceeding.
13. GENERAL PROVISIONS
13.1. Entire Agreement and Order of Precedence. This Agreement, including any Order Forms, is the entire agreement between Customer and Cequence regarding Customer’s use of API Spyder Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter (including any non-disclosure agreement between Customer and Cequence where the sole purpose was to evaluate the subscription hereunder). No waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the waiver is to be asserted. No modification or amendment of any provision of this Agreement or an Order Form will be effective unless in writing and signed by the party against whom the waiver is to be asserted. The parties agree that any term or condition stated in any Customer purchase order or in any other order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation.
13.2. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent; provided, however, either party may assign this Agreement in its entirety (including all Order Forms hereunder), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets or equity securities.
13.3. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
13.4. Third-Party Beneficiaries. The parties do not intend to create any third-party beneficiaries of this Agreement, and nothing in this Agreement is intended, nor shall anything herein be construed to create any rights, legal or equitable, in any person other than the Parties to this Agreement.
13.5. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
13.6. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
13.7. Headings. Headings are used in this Agreement and all associated agreements are solely for convenience and shall not be deemed to affect in any manner the meaning or intent of the applicable agreement or any provision there/hereof.
13.8. Equitable Relief. Nothing in this Agreement will limit either party’s ability to seek equitable relief.
13.9. Force Majeure. Except for payment obligations, neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, an act of war or terrorism, riot, labor condition, governmental action, pandemic, epidemic, quarantine restriction, or internet or electronic communications failure) that was beyond the party’s reasonable control.