CEQUENCE SaaS END USER LICENSE AGREEMENT
This End User License Agreement (the “Agreement”) is entered into as of the later of the dates on which both Cequence Security, Inc., a Delaware corporation, having its principal place of business at 5201 Great America Pkwy #240, Santa Clara, California, 95054 (“Cequence”), and the other party to this Agreement (“Customer”) execute the related Order Form pursuant to which they agree to be bound by the terms of this Agreement and the Order Form (the “Effective Date”).
RECITALS
A. Cequence wishes to provide to Customer the Software and related Support and Maintenance Services under the terms and conditions of this Agreement and additional terms in any Order Form.
B. To the extent there is any conflict between constituent parts of the Agreement, the order of precedence is (i) the Agreement and (ii) the Order Form.
C. Capitalized terms shall have the meanings described to them in Section 1, unless defined separately.
NOW, THEREFORE, in consideration of the terms, conditions and covenants set forth below, the parties agree as follows:
GENERAL TERMS
Personal Information You Provide
1. DEFINITIONS
Unless otherwise defined herein, Capitalized terms used in this Agreement shall have the meanings set forth in this Section 1.
1.1. “Affiliate” means any entity under the control of Customer where “control” means ownership of or the right to control greater than fifty percent (50%) of the voting securities of such entity.
1.2. “Agreement” means this the combined operative terms of the Base Agreement, and any Order Form that reference this Agreement, Exhibits attached hereto, and policies that are incorporated by reference herein.
1.3. “Cequence Privacy Policy” means Cequence’s privacy policy located at https://www.cequence.ai/privacy/ and incorporated by reference herein.
1.4. “Customer Data” means the data generated by the Customer’s Endpoint and collected by Products. Customer Data is considered Customer’s Confidential Information.
1.5. “Documentation” means the standard documentation for the Product as provided by Cequence upon Customer’s access to the Product, excluding any Cequence sales, marketing, or other materials that are not explicitly designated as official product documentation.
1.6. “End User License Agreement”, “SaaS End User License Agreement” or the “SaaS EULA” shall mean this Agreement, serving as the end user license agreement, including any Order Forms entered into in connection herewith.
1.7. “Endpoint” means any physical or virtual device, such as, a computer, server, laptop, desktop computer, mobile, cellular, container or virtual machine image.
1.8. “Evaluation Service” shall mean the use of the Product on a temporary basis for non-commercial evaluation.
1.9. “Hybrid” or “Hybrid Deployment” means a deployment model that utilizes both SaaS under the terms of this Agreement and on-premises software under that certain On-Premises EULA found at https://www.cequence.ai/legal/on-premises-end-user-license-agreement/, and defined therein. Under this model, certain components of the Cequence proprietary network security software are deployed within Customer ’s on-premises environment, while other components are hosted and provided as a service by Cequence. The Hybrid Deployment may include interoperability between on-premises software and SaaS components, as well as updates, upgrades, configurations, scripts, and integrations necessary for seamless operation across both environments.
1.10. “Intellectual Property” or “Intellectual Property Rights” means patent, copyright, trade secret, trademark, or other similar intellectual property rights of any kind or nature arising under the laws of any jurisdiction, including any so-called “moral rights.”
1.11. “Order Form” means an order form, sales quote, or purchase order that references this Agreement and is executed by or on behalf of a Customer (in the form of or substantially in the form of Exhibit B), that specifies which Software and related Support Services are to be provided by Cequence to Customer or, where applicable, to a third-party end user.
1.12. “Personal Data” means information provided by Customer to Cequence or collected by Cequence used to distinguish or trace a natural person’s identity, either alone or when combined with other personal or identifying information that is linked or linkable by Cequence to a specific natural person. Personal Data also includes such other information about a specific natural person to the extent that the data protection laws applicable in the jurisdictions in which such person resides define such information as Personal Data.
1.13. “Premium Support Services” means, as set forth in the Support Policy the maintenance and support services for the Product made commercially available by Cequence as defined in Exhibit as defined therein.
1.14. “Product” shall mean the Software and the Premium Support Services.
1.15. “Reseller” means the authorized reseller named in the Order Form, if any, from which Customer purchases the Product.
1.16. “SaaS” or “Software-as-a-Service” means the cloud-based service provided by Cequence that makes the Software commercially available as a hosted service offering, including updates, upgrades, enhancements, and modifications thereto that may be made available to Customer by Cequence through the Premium Support Services. The SaaS offering may include additional features, integrations, or services as determined by Cequence.
1.17. “Software” means, as the context requires, Customer’s instance of the Cequence Product as specified in the Order Form, including any Software Update, the use of any necessary infrastructure, new releases and new versions provided under the Premium Support Services, and any Documentation provided therewith.
1.18. “Software Updates” shall have the meaning set forth according to the Software Update Policy as updated from time to time. The Software Update Policy includes the limitations on the versions of the Software Cequence continues to support.
1.19. “Subscription” means the license for the Product during the Subscription Term and the Premium Support Services provided therewith during such term.
1.20. “Subscription Term” means the period of time during which the Subscription is initially contracted to be available to Customer as set forth in the Order Form(s).
2. Orders and Delivery of SaaS
2.1. Order Form. Subject to the terms and conditions of this Agreement, Customer may from time-to-time place orders with Cequence or Reseller to purchase a Subscription as specified in the Order Form. In the event Customer elects to purchase a Subscription from Reseller, Cequence will issue Customer an Order Form, documenting the critical business details of the relationship such as the Product ordered pursuant to the Subscription and the Subscription Term.
2.2. Acceptance of Orders. Cequence may accept Customer’s orders in its sole discretion by providing an Order Form or similar document to Customer confirming the particulars of the order. The Order Form shall be executed by Customer or by an authorized Reseller on behalf of a Customer.
2.3. Delivery. Cequence will promptly make the Product available within a reasonable time after Customer has executed the Order Form.
2.4. Installation and Conversion of Customer Data. Customer shall be solely responsible for (i) any conversion of Customer Data required to make such data compatible with the Product, and (ii) providing Cequence access to and a license to use the Customer Data as necessary to fulfill Cequence’s obligations under this Agreement.
2.5. Service Updates, Maintenance, and Deployment. Cequence reserves the right to upgrade, modify, deploy, and perform maintenance on the Service as necessary to ensure security, functionality, and operational efficiency. Such updates or maintenance activities may include, but are not limited to, software enhancements, bug fixes, security patches, and performance improvements. Cequence may perform these actions without prior notice to Customer, and Customer acknowledges that such activities may result in temporary service interruptions. Cequence will use commercially reasonable efforts to minimize disruption to the Service during such maintenance or deployments.
3. License Grant
3.1. SaaS License Grant. Subject to the terms and conditions of this Agreement, and for the duration of the Subscription Term, Cequence hereby grants to Customer a non-exclusive, non-transferable, non-assignable, non-sublicensable license to access and use the Product for the purpose of analyzing the Customer Data.
3.2. Contractors and Affiliates. Customer may permit its independent contractors and consultants who are not competitors of Cequence (“Contractors”) and its Affiliates who additionally are not competitors of Cequence to access and use the Product, provided Customer remains responsible for such Contractor’s and Affiliate’s compliance with the terms and conditions of this Agreement and any such use of the Product by such Contractor or Affiliate is for the sole benefit of Customer or such Affiliate. Use of the Product by Affiliates, Contractors, and Customer in the aggregate must be within the restrictions in the applicable Order Form. The Affiliate rights granted in this section shall not apply to any “enterprise-wide” license unless Affiliate usage is designated in the applicable Order Form.
3.3. License Restrictions to the Product. Each license granted under Section 3.1 is subject to the restrictions below and any additional provisions set forth in the Order Form. Without limiting the foregoing, Customer shall not: (i) modify, adapt, alter, publicly display, publicly perform, translate, or create derivative works of the Product; (ii) use the Product to provide, create, or incorporate the Product into any similar software-as-a-service solution to a third party or otherwise directly expose the functionality of the Product to any third party; (iii) sell, sublicense, lease, rent, loan, or otherwise provide access to the Product to any third party or use the Product for the benefit of any third party; (iv) reverse engineer, decompile, disassemble, or in any way attempt to obtain the source code or algorithms of the Product; (v) disclose, outside of Customer, any performance information or analysis from any source relating to the Product or publish any information derived from the Product; (vi) remove, alter, or obscure any proprietary or other notices contained in the Product; (vii) use the Product in any manner other than as described in the Documentation, this Agreement, or in excess of the license parameters set forth in the Order Form; (viii) use the Product, any component, or any information derived therefrom to create a competitive product or service; (ix) adversely impact the speed, security, or integrity of the Product (or any data contained within the Product); (x) conduct any penetration testing, exploit or attempt to exploit any vulnerabilities in the Product; or (xi) allow any third party to do any of the foregoing.
3.4. Access to Information from Customer’s Use of the Product. During the term of this Agreement, Cequence reserves the right to request from Customer any logs, reports, data, or additional information in order for Cequence to ensure the Product is functioning properly, improve the Product, and ensure Customer is using the Product only in environments supported by Cequence. Cequence may, upon Customer’s consent, access the foregoing information directly. In any event upon Cequence’s request for such information, Customer will promptly supply such data or other information requested by Cequence as it relates to this section.
3.5. Use of Analytics. Cequence shall have the right to retain and use the aggregated, anonymized analytics that are yielded from the processing of the data generated from Customer’s use of the Product, provided that Cequence shall not process such data in an individually identifiable way.
3.5. Use of Analytics. Cequence shall have the right to retain and use the aggregated, anonymized analytics that are yielded from the processing of the data generated from Customer’s use of the Product, provided that Cequence shall not process such data in an individually identifiable way.
4. Support Services
4.1. Support Services. The Support Services are defined in Exhibit A, attached hereto.
5. Fee Adjustments
5.1. Fee Adjustments. For any renewal term following the initial Subscription Term, Cequence may increase the fees for the Subscription to include an inflation adjustment based on the most recent Consumer Price Index for All Urban Consumers (“CPI-U”). Cequence reserves the right to further adjust the fees under this Agreement based on market conditions. Any adjusted fees shall only apply to subsequent annual terms and shall not affect the Subscription for which Customer has already paid the applicable fees.
5.2. Usage Rates. The usage available to Customer, including overage, is set forth in the Order Form.
6. Handling of Customer Data
6.1. Use and Provision of Customer Data. In providing Customer Data to Cequence hereunder, Customer warrants that it shall provide such data to Cequence only to the extent necessary for Cequence to perform its obligations under this Agreement. Although the Cequence Privacy Policy protects personal information on a broader level (as defined therein), Customer warrants that it shall not provide any personal information pursuant to this Agreement other than Personal Data, as defined herein, required to supply the Service. Any supplied Personal Data by Customer is subject to Cequence’s Privacy Policy. Upon Customer’s written request during the Subscription Term, Cequence shall deliver to Customer a copy of all Customer Data in Cequence’s possession or control in a mutually agreed, commercially reasonable, and readily accessible format.
7. GENERAL PAYMENT TERMS
7.1. Payment. Payment of all fees for the Product shall be made to Cequence pursuant to the terms of the Order Form entered into by the end user. In the event no payment terms are specified in the Order Form, payment of all fees due hereunder shall be made within thirty (30) days after the date of invoice. All payments must be made in US Dollars. Late payments will accrue interest at the rate of one and one half percent (1½%) per month or, if lower, the maximum rate permitted under applicable law. Cequence will send its invoice to the address provided by Customer, referencing any purchase order provided by Customer.
7.2. Taxes. Customer shall be responsible for all taxes, withholding, levies, and other charges arising out of this Agreement for any Product, except for taxes based on the net income of Cequence.
8. Cequence Intellectual Property
8.1 Cequence Intellectual Property. As between the parties, the Software and the Documentation, including, but not limited to, copyrights, trade secrets, trademarks, service marks, patents, modifications, improvements and all other software, data, content, user interface, analytics, investigative models and other models related to such, reports, outputs, documentation, manuals, notes, supporting information, any other digital information that Cequence makes available to Customer, and all Intellectual Property Rights related thereto and therein are the exclusive property of Cequence. Except for the rights expressly granted by Cequence to Customer under this Agreement, (i) Cequence (and its suppliers each) reserve all right, title, and interest in and to the Software and all Intellectual Property named above and the rights therein, whether created before or during the course of this Agreement and any new Intellectual Property created for or provided to Customer hereunder, and (ii) no right, title, ownership interest in or to the Software, or Cequence Intellectual Property whether by implication, estoppel, or otherwise, is granted, assigned, or transferred to Customer under or in connection with this Agreement.
9. Confidential Information
9.1. The term “Confidential Information” shall mean any information disclosed by either party (the “Discloser”) to the other party (the “Recipient”) in connection with this Agreement that: (i) if disclosed in writing, is marked as “Confidential” or “Proprietary;” (ii) if disclosed orally, is identified as “Confidential” or “Proprietary” at the time of disclosure; (iii) information such as source code, object code, documentation, inventions, trade secrets, technical data, data compilations, processes, designs, drawings, methods, know-how, business plans, and pricing. In addition, that which is reserved as Cequence intellectual property under Section 3, the Product, and any modifications, improvements, or information related to the foregoing; or (iv) such information that a professional of ordinary skill in the cybersecurity or software field would understand as to be afforded confidential treatment, shall be considered Cequence Confidential Information. Recipient shall treat as confidential all Confidential Information of Discloser and shall not use such Confidential Information except as expressly permitted under this Agreement. Recipient shall not disclose such Confidential Information to any third party without Discloser’s prior written consent; provided, however, that Recipient may disclose Discloser’s Confidential Information to its employees and contractors who have entered into a written agreement with Recipient that is no less protective of Discloser’s Confidential Information than this Agreement and who have a need to know such information (including in order to provide services to Recipient). Recipient shall assume liability for use of the Confidential Information by its employees, agents, and contractors. Recipient shall use the same measures to protect Discloser’s Confidential Information that it uses to protect its own confidential information, but in no event less than reasonable measures. Notwithstanding the above, the restrictions of this Section 9 shall not apply to information that: (a) is independently developed by Recipient without any access to the Confidential Information of Discloser; (b) becomes known to Recipient, without restriction, from a third party without breach of any confidentiality obligation to Discloser and who had a right to disclose it; (c) is or becomes in the public domain through no act or omission of Recipient; or (d) is required to be disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body (but only to the minimum extent required to comply), provided, however, that Recipient shall provide prompt notice thereof to Discloser and shall use its reasonable efforts to obtain a protective order or otherwise prevent public disclosure of such information. Except as provided in this Section 9, neither party will disclose any terms of this Agreement to any third party other than to: (x) its attorneys, accountants and other professional advisors under a duty of confidentiality; (y) interested parties under a duty of confidentiality in connection with a proposed merger, any debt or equity financing or any public offering of shares or sale of such party’s business; or (z) in connection with a mutually agreed upon press release.
10. Term and Termination
10.1. Term. This Agreement commences on the Effective Date and continues for the initial license term set forth in the Order, unless terminated earlier in accordance with Section 10.2 below (the “Initial Term”). This Agreement will automatically renew at the end of the Initial Term and any subsequent term for a renewal term of one (1) year (each a “Renewal Term”) unless either party provides the other party with written notice of its intention not to renew at least thirty (30) days prior to the expiration of the then-current term. The Initial Term and applicable Renewal Term(s) shall collectively be referred to as the “Term.”
10.2. Termination. Cequence may terminate this Agreement with immediate effect upon written notice to Customer if any of the following occurs: (i) Customer breaches any of its material obligations under this Agreement and the breach, if capable of being cured, is not cured within thirty (30) days from receipt of written notice of such breach; (ii) the institution by or against Customer of insolvency, receivership or bankruptcy proceedings, or any other proceedings for the settlement of Customer’s debts, and such proceedings have not been dismissed within ninety (90) days; (iii) Customer’s making of an assignment for the benefit of its creditors; or (iv) Customer’s dissolution or ceasing to do business in the ordinary course.
10.3. Effect of Termination. Upon expiration or termination of this Agreement for any reason, all rights and obligations under this Agreement shall terminate except as specifically provided under this Section 10, and Customer shall immediately pay all amounts owed to Cequence under this Agreement, if any, prior to such expiration or termination and shall immediately cease any access to or use of the Product. Customer will also return to Cequence all Cequence Confidential Information obtained during the course of this Agreement, including Documentation. For On-Premises or Hybrid deployments, where applicable, Customer shall also destroy and permanently delete all Software and provide a formal attestation confirming compliance with this requirement. Customer acknowledges that thirty (30) days following termination it shall have no further access to the Product or any Customer Data provided to the Product and that Cequence may delete any Customer Data as may have been stored by Cequence at any time. Sections 1, 5, 8, 9, 10, 11, 12, and 18 will survive the expiration or termination of this Agreement for any reason (including the termination of an Evaluation Period).
11. Warranties
11.1. Performance Warranty. Cequence warrants to Customer that, for a period of ninety (90) days from the Effective Date (the “Warranty Period”), the Product, when used as permitted under this Agreement and in accordance with the Documentation, will operate in substantial conformity with the Documentation. Cequence’s sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty shall be, in Cequence’s sole discretion, to use commercially reasonable efforts to correct the non-conformity, provided that Cequence is notified in writing of such non-conformity within the Warranty Period. This warranty shall not apply if: (i) the Product is used outside the scope of this Agreement or used inconsistently with the Documentation; (ii) the Product is modified or altered in any way except by Cequence; or (iii) any non-conformity in the Product is due to misuse of the Product by Customer. Any error correction will not extend the original Warranty Period.
11.2. Virus Warranty. Cequence warrants to Customer that the Product, as made available through the Product, has been tested with commercially recent virus detection software to ensure that when made available, the Product does not contain any viruses that would have the effect of disabling Customer’s systems or providing unauthorized access to Customer Data. In the event Cequence breaches this warranty, Customer’s sole and exclusive remedy shall be for Cequence to use commercially reasonable efforts to eliminate the virus from the Product. This warranty shall not apply if: (a) the Product is used outside the scope of this Agreement or inconsistently with the Documentation; (b) the Product is modified or altered in any way except by Cequence; (c) any virus is due to misuse of the Product; or (d) the introduction of any virus is caused by Customer.
11.3. Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN THIS SECTION 11, THE PRODUCT AND ANY MATERIALS PROVIDED HEREUNDER ARE PROVIDED “AS IS,” AND CEQUENCE MAKES NO OTHER WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, CEQUENCE EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, RESULT, EFFORT, TITLE, AND NON-INFRINGEMENT. CEQUENCE DOES NOT WARRANT THAT THE PRODUCT OR ANY MATERIALS WILL BE PROVIDED ERROR FREE, WILL OPERATE WITHOUT INTERRUPTION. OR WILL FULFILL CUSTOMER’S REQUIREMENTS. CUSTOMER ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 11 AND THAT NO WARRANTIES ARE MADE BY ANY OF CEQUENCE’S SUPPLIERS OR CONTRACTORS. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE PRICES OFFERED UNDER THIS AGREEMENT REFLECT THESE NEGOTIATED WARRANTY PROVISIONS. TO THE EXTENT THAT CEQUENCE CANNOT DISCLAIM ANY WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM REQUIRED UNDER SUCH LAW.
11.4. Customer Warranties. Customer represents and warrants that (i) it owns the Customer Data or has obtained all applicable permissions, authorizations, or licenses from each of its data sources or systems and has all rights that are or may be necessary to provide the Customer Data hereunder and for Customer and Cequence to collect, process, or use such in connection with or as contemplated under this Agreement; and (ii) it has executed all necessary agreements with any Contractors that it has engaged to provide services related to this Agreement and will assume liability for such Contractors’ actions as related to this Agreement, the Product, and Cequence Confidential Information. Cequence disclaims any responsibility or liability for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to collect, process, or use the Customer Data.
11.4. Customer Warranties. Customer represents and warrants that (i) it owns the Customer Data or has obtained all applicable permissions, authorizations, or licenses from each of its data sources or systems and has all rights that are or may be necessary to provide the Customer Data hereunder and for Customer and Cequence to collect, process, or use such in connection with or as contemplated under this Agreement; and (ii) it has executed all necessary agreements with any Contractors that it has engaged to provide services related to this Agreement and will assume liability for such Contractors’ actions as related to this Agreement, the Product, and Cequence Confidential Information. Cequence disclaims any responsibility or liability for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to collect, process, or use the Customer Data.
12. Indemnification
12.1. Cequence Indemnification. Subject to Sections 12.2 and 12.3, 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 the Product 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.
12.2. Infringement Remedy. If the Product 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 12.1, Cequence may (at its option and expense) either (i) procure for Customer the right to continue using the affected Product, or (ii) modify the non-conforming Product 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 use of to the infringing Product. SECTIONS 12.1 AND 12.2 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.
12.3. Exclusions. Notwithstanding the foregoing, Cequence will have no obligation under this Section 12 or otherwise with respect to any infringement claim to the extent based upon: (i) any use of the Product not in accordance with this Agreement or the Documentation; (ii) any use of the Product in combination with other products software or data not provided by Cequence; (iii) any modification of the Product by any person or entity other than Cequence; (iv) any intellectual property owned or licensed by Customer; or (v) open source software.
12.4. Customer Indemnification. 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 Customer Data or use thereof as contemplated hereunder that infringes any intellectual property or privacy rights; (ii) any sharing of the Product with or (use thereof by) Contractors or Affiliates; and (iii) the exclusions in Section 12.3 (i) – (iv). 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.
13. Limitation of Liability
13.1. NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL THEORY, INCLUDING BUT NOT LIMITED TO (I) LOST PROFITS, LOST DATA, OR BUSINESS INTERRUPTION, EVEN IF IT HAS BEEN ADVISED OF, KNOWS OF, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND (II) IN THE CASE OF CEQUENCE, ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN OR DESTRUCTIVE PROPERTIES OF THE PRODUCT OR ANY OTHER MATERIALS PROVIDED HEREUNDER. NEITHER PARTY’S TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, WILL EXCEED THE TOTAL FEES PAID BY CUSTOMER FOR THE PRODUCT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM OR, IF NO FEES ARE PAID, ONE THOUSAND DOLLARS ($1,000). THE FOREGOING LIMITATIONS IN THIS SECTION 13 SHALL NOT APPLY TO OR OTHERWISE LIMIT THE BREACH OF SECTION 9, THE OBLIGATIONS UNDER SECTION 12, OR BREACH OF CEQUENCE’S INTELLECTUAL PROPERTY RIGHTS. THE PARTIES ACKNOWLEDGE THAT THIS SECTION 13 REFLECTS THE AGREED UPON ALLOCATION OF RISK BETWEEN THE PARTIES. THIS LIMITATION OF LIABILITY WILL APPLY DESPITE THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY SET FORTH HEREIN.
14. Security
14.1. Cequence Security. Cequence will use commercially reasonable technical and organizational measures to prevent unauthorized access, use, alteration, or disclosure of Customer Data, if any. However, Cequence shall have no responsibility for errors in transmission, unauthorized third-party access, or other causes beyond Cequence’s control. Customer understands that it is responsible for maintaining appropriate security, protection, and backup of the Customer Data. Customer agrees that any log-in credential and private keys generated hereunder are for Customer’s internal use only and Customer may not sell, transfer, or sublicense them to any other entity or person.
15. PCI Compliance
15.1. PCI Compliance. To the extent Cequence processes payment account information or cardholder data, Cequence will do so in compliance with the payment card industry data security standard (“PCIDSS”) and hereby acknowledges its responsibility for the security of any cardholder data (as such term is defined in PCIDSS) that it processes in connection with the Product.
16. Evaluation
16.1. Evaluation Product. From time to time, Cequence may provide the Customer an Evaluation Service. If Cequence agrees to such evaluation and conditioned on Customer’s compliance with the terms and conditions of this Agreement, Cequence grants to Customer during the Evaluation Period (as defined below), a cost-free, non-exclusive, non-transferable, non-assignable, non-sublicensable, revocable license to use the Evaluation Service solely for Customer’s internal evaluation of the Evaluation Service. Notwithstanding anything to the contrary as stated in this Agreement, all right, title and interest to the Evaluation Service, and all intellectual property rights in and to them, are and will remain the exclusive property of Cequence.
16.2. Evaluation Period. Unless otherwise agreed to by the parties in writing or terminated earlier in accordance with this Agreement, an evaluation shall commence upon Cequence making the Evaluation Service available to Customer and continue up to thirty (30) days thereafter (“Evaluation Period”). Upon the expiration or termination of the Evaluation Period, unless Customer has executed an Order Form for the Product, (i) all licenses granted under this Section 16 for such evaluation will cease, and (ii) Customer will immediately cease its use of the Evaluation Service and return to Cequence all Confidential Information obtained during the course of the Evaluation Period. Customer acknowledges it shall have no further access to the Product or any Customer Data provided to the Product and that Cequence may delete any Customer Data as may have been stored by Cequence at any time.
16.3. Additional Evaluation Terms. Notwithstanding anything to the contrary as contained in this Agreement, Customer acknowledges and agrees that the Evaluation Service is provided for evaluation “AS-IS” and Cequence makes no representations or warranties of any kind, express, implied, or statutory with respect to the Evaluation Service, including, without limitation and to the maximum extent permitted by law, the implied warranties of merchantability, fitness for a particular purpose, accuracy, result, effort, title, and non-infringement.
17. Hybrid Deployment.
17.1. Hybrid Deployment. The Cequence may, upon the Parties executing both this SaaS EULA and the On-Premises EULA, and their respective Order Forms, provide both services to an end user. In the event of any conflict between the respective SaaS EULA, On-Premises EULA, and the respective Order Forms, the terms of the EULAs shall control. In the event of any conflict between the SaaS EULA and an On-Premises EULA, the one entered earlier in time shall control.
18. General
18.1. Notices. All notices, consents demands and approvals under this Agreement must be delivered in writing by courier or by certified or registered mail (postage prepaid and return receipt requested) to the other party at the address set forth on the Order Form and will be effective upon receipt or three (3) business days after being deposited in the mail as required above, whichever occurs sooner.
18.2. Relationship of the Parties. The parties hereto are independent contractors. Neither party (nor any agent or employee of that party) is the representative of the other party for any purpose.
18.3. Export Control. Customer acknowledges and agrees that it will comply with all applicable export and import control laws and regulations of the United States and foreign jurisdictions in which the Product is accessed or used. Without limiting the foregoing, (i) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (ii) Customer shall not (and shall not permit any of its users to) access or use the Product in violation of any U.S. export embargo, prohibition, or restriction, and (iii) Customer shall not submit to the Product any information that is controlled under the U.S. International Traffic in Arms Regulations.
18.4. Assignment. Neither party may assign or transfer, by operation of law or otherwise, any of its rights under this Agreement to any third party without the other party’s prior written consent, except in the event of a merger, acquisition, or transfer of all or substantially all of a party’s assets, in which case the assignor shall provide written notification of such assignment. Any attempted assignment or transfer in violation of the foregoing will be void.
18.5. No Waivers. All waivers must be in writing; any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
18.6. Severability. If any provision of this Agreement is adjudicated to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
18.7. Governing Law. 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 (UTICA) 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.
18.8. Force Majeure. Except for Customer’s obligations to pay Cequence, neither party shall be liable to the other party for any failure or delay in performance caused by reasons beyond its reasonable control, including but not limited to Acts of God, natural disasters, pandemics, acts of war, terrorism, government actions, labor disputes, supply chain disruptions, power outages, failures of any internet or electronic communications, or other unforeseen events that prevent or hinder performance.
18.9. Purchase Orders. Nothing contained in any purchase order, purchase order acknowledgement, or invoice shall in any way modify or add any additional terms or conditions to this Agreement. Purchase orders are non-cancelable and non-refundable.
18.10. Entire Agreement. This Agreement and the Order Form shall constitute the entire agreement between the parties concerning the subject matter hereof. All prior and contemporaneous agreements, understandings, negotiations, or representations, whether oral or in writing, relating to the subject matter of this Agreement are superseded and canceled in their entirety. This Agreement may be amended only by a written document signed by both parties. The terms of this Agreement will control over any conflicting, different, or additional provisions in any standard terms and conditions set forth in Customer’s form documents (including any purchase order or pre-printed or click-through agreement contained on Customer’s web site or any Customer form agreement or document), notwithstanding anything to the contrary in such documents. An original, facsimile, or electronically signed Agreement or attachment hereto will be considered a valid, executed document.
18.3. Export Control. Customer acknowledges and agrees that it will comply with all applicable export and import control laws and regulations of the United States and foreign jurisdictions in which the Product is accessed or used. Without limiting the foregoing, (i) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (ii) Customer shall not (and shall not permit any of its users to) access or use the Product in violation of any U.S. export embargo, prohibition, or restriction, and (iii) Customer shall not submit to the Product any information that is controlled under the U.S. International Traffic in Arms Regulations.
18.4. Assignment. Neither party may assign or transfer, by operation of law or otherwise, any of its rights under this Agreement to any third party without the other party’s prior written consent, except in the event of a merger, acquisition, or transfer of all or substantially all of a party’s assets, in which case the assignor shall provide written notification of such assignment. Any attempted assignment or transfer in violation of the foregoing will be void.
18.5. No Waivers. All waivers must be in writing; any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
18.6. Severability. If any provision of this Agreement is adjudicated to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
18.7. Governing Law. 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 (UTICA) 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.
18.8. Force Majeure. Except for Customer’s obligations to pay Cequence, neither party shall be liable to the other party for any failure or delay in performance caused by reasons beyond its reasonable control, including but not limited to Acts of God, natural disasters, pandemics, acts of war, terrorism, government actions, labor disputes, supply chain disruptions, power outages, failures of any internet or electronic communications, or other unforeseen events that prevent or hinder performance.
18.9. Purchase Orders. Nothing contained in any purchase order, purchase order acknowledgement, or invoice shall in any way modify or add any additional terms or conditions to this Agreement. Purchase orders are non-cancelable and non-refundable.
18.10. Entire Agreement. This Agreement and the Order Form shall constitute the entire agreement between the parties concerning the subject matter hereof. All prior and contemporaneous agreements, understandings, negotiations, or representations, whether oral or in writing, relating to the subject matter of this Agreement are superseded and canceled in their entirety. This Agreement may be amended only by a written document signed by both parties. The terms of this Agreement will control over any conflicting, different, or additional provisions in any standard terms and conditions set forth in Customer’s form documents (including any purchase order or pre-printed or click-through agreement contained on Customer’s web site or any Customer form agreement or document), notwithstanding anything to the contrary in such documents. An original, facsimile, or electronically signed Agreement or attachment hereto will be considered a valid, executed document.
EXHIBIT A
to the
AGREEMENT
SUPPORT POLICY
This Cequence Support Policy (“Support Policy”) applies to Customer’s access and use of the applicable Product purchased under the Agreement (the “Agreement”).
1. Cequence Support Service Offerings
Cequence’s Premium Support Services are as follows:.
| Support Type | Premium Support |
|---|---|
| Severity | Initial Response Time |
| Sev 1 – Urgent | <30 minutes |
| Sev 2 – High | 2 Business Hours* |
| Sev 3 – Medium | 6 Business Hours* |
| Sev 4 – Low | 2 Business Days |
* Business Hours defined by the 6AM-6PM local time of the authorized technical contact.
2. Priority Levels
Customer shall reasonably self-diagnose each support issue and recommend to Cequence an appropriate Priority Level (as defined below). Cequence shall validate Customer’s Priority Level designation or notify Customer of a proposed change in the Priority Level designation to a higher or lower level with justification for the proposal. In the event of a conflict regarding the appropriate Priority Level designation, each party shall promptly escalate such conflict to its management team for resolution through consultation between the parties’ management, during which time the parties shall continue to handle the support issue in accordance with the Cequence Priority Level designation. In the event a conflict requires a management discussion, both parties shall be available within two (2) hours of the escalation.
| Priority Level | Description |
|---|---|
| Sev 1 – Urgent | Product issue which critically affects Customer’s production environment. Customer observes a complete loss of service. A workaround is not yet available. |
| Sev 2 – High | Product is down such that Customer is significantly impacted and cannot execute one or more important business processes. No workaround or alternative is available. |
| Sev 3 – Medium | Product performance is substantially degraded or restricted and exposed to potential interruption. A workaround exists but is not optimal. |
| Sev 4 – Low | No impact to the functionality of Product or Customer’s production environment or business. This includes requests about Product, such as an enhancement, information, documentation, and how-to questions. There is no loss of service. |
3. Support Portal Features
Cequence makes its online Support Services available through the following methods:
3.1 Customer Support Portal. Customer may create a case through Zendesk (helpdesk.cequence.ai), in order to expedite its questions being answered, share documentation, and provide additional information about its case.
3.2 Knowledge Based Articles. Cequence’s Customer Support Portal includes a library of Knowledge Base Articles designed to provide Customer with solutions and technical documents that contain information about common problems and steps to resolve the issues. These Knowledge Base Articles enable Customer to draw of the experience of other Cequence customers, partners, and experts. Cequence also posts notifications about new releases of Product.
3.3 Case Management. Customer may create, update, manage, and track Customer’s case online. For more information, see Case Submission.
3.4 Announcements. Cequence posts announcements, release notes, and alerts on a regular basis concerning Product.
4. Support Hours and Language
4.1 Support Hours. Cequence makes Support Services available 24x7x365.
4.2 Support Language. Support Services are provided in English.
5. Case Submission
Customer may submit a case as follows:
1. The authorized technical contact shall open helpdesk.cequence.ai and login to the Customer Support Portal.
2. Click the Submit a Case option under the Support Quick Links section.
3. On the Submit a New Case page, provide required information.
4. Click Submit a Case. After submitting a case, Customer may (i) track the status of the case and (ii) add comments online.
5. While resolving Customer’s case, the support engineer will request that Customer provide key information or perform certain tasks.
2. Click the Submit a Case option under the Support Quick Links section.
3. On the Submit a New Case page, provide required information.
4. Click Submit a Case. After submitting a case, Customer may (i) track the status of the case and (ii) add comments online.
5. While resolving Customer’s case, the support engineer will request that Customer provide key information or perform certain tasks.
EXHIBIT B
ORDER FORM SAMPLE
