Cequence Customer Managed Software License Agreement

This Customer Managed Software License Agreement (“Agreement”) is entered into as of the later date on which both Cequence Security, Inc., having its principal place of business at 100 South Murphy Avenue, Sunnyvale, California 94086 USA ( “Cequence”) and ther other party to this Agreement (“Customer”) execute the related Order pursuant to which they agree to be bound by the terms of this Agreemend thathe Order (the “Effective Date”).

1. Definitions

Terms not defined in this Section 1 are defined in the first section in which they are used in this Agreement.

1.1. “Cequence Privacy Policy” means Cequence’s privacy policy located at https://www.cequence.ai/privacy/ and is incorporated herein by reference.

1.2. “Documentation” means the standard documentation for the Licensed Software as provided by Cequence upon Customer’s download, installation or access to the Licensed Software, excluding any Cequence sales or marketing materials.

1.3. “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.”

1.4. “Licensed Software” means the Cequence proprietary network security software program(s) set forth in the Order and any Software Updates to the foregoing provided or otherwise made available by Cequence under this Agreement, in each case in binary executable form.

1.5. “Measured Throughput” means the average monthly amount of network bandwidth consumed by the Licensed Software, in all operating environments used by Customer, as measured by the Licensed Software itself.

1.6. “Order” means the sales quotation, order form, or order confirmation that references this Agreement as provided by Cequence to Customer that specifies the Licensed Software to be licensed, Support and Maintenance Services to be provided by Cequence to Customer under this Agreement, and is executed by Cequence and Customer.

1.7. “Software Update” means fixes or patches to, or configuration data changes for, the Licensed Software that Cequence makes commercially available to its customers under the Support and Maintenance Services.

1.8. “Support and Maintenance Services” means the support and maintenance services provided by Cequence as set forth in Section 4.

2.  License and Restrictions

2.1.  Delivery. Promptly following execution of this Agreement, Cequence will make available a copy of the Licensed Software available for deployment at the direction of Customer, and provide any applicable license key or other credentials necessary to enable the Licensed Software. Cequence does not make Licensed Software available for delivery on tangible media.

2.2.  Delivery. Promptly following execution of this Agreement, Cequence will make available a copy of the Licensed Software available for deployment at the direction of Customer, and provide any applicable license key or other credentials necessary to enable the Licensed Software. Cequence does not make Licensed Software available for delivery on tangible media.

2.3.  Restrictions. Customer may not (and may not permit any third party to) reproduce, distribute, prepare derivative works of, publicly display, or publicly perform the Licensed Software in whole or in part, or use or make the Licensed Software available to any third party or use the Licensed Software on behalf of any third party. Except, and solely to the extent that such a restriction is impermissible under applicable law or applicable third party license, Customer may not (and may not permit any third party to): (a) decompile, reverse engineer, or otherwise access or attempt to access the source code for the Licensed Software; or (b) interfere with or circumvent any feature of the Licensed Software, including, without limitation, any license key, encryption or other security feature designed to monitor Customer’s compliance with this Agreement; (c) assign, sell, lease, license, sublicense, or otherwise transfer or attempt to transfer rights to the Licensed Software; or (d) alter or remove any copyright, trademark, patent or other proprietary rights notices or labels that appear on or in the Licensed Software. Customer must uninstall and delete the Licensed Software (or direct such removal or deletion) following termination or expiration of this Agreement. Customer acknowledges that the Licensed Software may contain an automatic termination feature that renders such Licensed Software non-functional at the end of the Term.

3. Ownership and Feedback

3.1.  Ownership. As between Customer and Cequence, Cequence retains all right, title and interest in the Licensed Software and all content, information, and data contained, embodied, implemented or incorporated therein, including all applicable Intellectual Property Rights therein. Except for the limited rights expressly granted to Customer in this Agreement, Cequence retains all rights to the Licensed Software, and nothing herein shall be deemed or interpreted to grant or imply any transfer or license of any Intellectual Property Rights of Cequence. Without limiting the foregoing, the Licensed Software is licensed only, and nothing in this Agreement shall be interpreted or construed as a transfer or sale of Cequence’s ownership rights in or to the Licensed Software.

3.2.  Generation of Reports. In connection with Customer’s use of the Licensed Software, Customer may have access to certain information regarding the performance of the Licensed Software, including the following (collectively “Reports”).

3.2.1. Results. The Licensed Software may provide certain details on which network traffic the Licensed Software determines may pose a security threat or risk, which will generally be available to Customer in summary form.

3.2.2.  Diagnostic. The Licensed Software also generates a variety of reporting, analytics, metrics, logs, metadata, and other information associated with the raw network traffic, and the basis for making determinations on which network traffic the Licensed Software determines may pose a security threat or risk, which underlying information may not be directly available to Customer.

3.3. Access and Use of Reports. Cequence will have access to diagnostic Reports through remote access to the Licensed Software. Customer agrees to reasonably cooperate with Cequence in delivering or enabling access for Cequence to obtain such Reports, including, without limitation, by using commercially reasonable efforts to operate the Licensed Software with continuous outbound network access to push Reports to Cequence. Reports will be deemed to constitute Feedback for the purposes of Section 3.4, below. Without limiting the foregoing, Cequence may automatically access, receive, store, process, retain, disclose, and utilize Reports for the following purposes: (i) providing services to Customer; (ii) analyzing, maintaining, and improving Cequence’s products and services; (iii) anonymously aggregating and statistically analyzing Reports; and (iv) making Reports anonymously available to Cequence’s Customers in connection with Cequence’s products and services.

3.4. Feedback. Customer may from time to time, but is not obligated to (except with respect to Reports, as provided above), provide Cequence with information and feedback regarding the features and performance of the Licensed Software (including proposed features, modifications, improvements, or enhancements), as well as information regarding any and all failures, errors, deficiencies, or other malfunctions in the Licensed Software along with any associated error messages (collectively, the “Feedback”). Customer hereby grants to Cequence a worldwide, nonexclusive, royalty-free, perpetual, irrevocable, transferable, sublicensable right and license to use and otherwise exploit the Feedback for any purpose, and to practice any method therein for any purpose without restriction or payment to Customer. Feedback is not Confidential Information of Customer, irrespective of any language to the contrary in any correspondence or communication in which Feedback is transmitted to Cequence, provided that Cequence agrees to not use or disclose Feedback in any manner that identifies Customer as the source of such Feedback.

4. Support and Maintenance Services. Subject to the terms and conditions of this Agreement, including the timely payment of all Fees, Cequence shall provide Customer with the support and maintenance services as set forth in Exhibit A (“Support and Maintenance Services”) during the Term for which Customer has paid for such services.

5. Payment Terms

5.1.  Fees. Customer agrees to pay the fees for the Licensed Software and Support and Maintenance Services, and all other amounts set forth in the Order, or if not specified, at Cequence’s then-current list price for the respective Licensed Software or service (collectively, the “Fees”). The Fees may be modified by Cequence for each Renewal Term by providing written notice to Customer at least thirty (30) days prior to the end of the then-current term.

5.2. Measured/Monitored Requests Per Day. Notwithstanding Section 4.1, if Customer’s Measured/Monitored Requests per day exceeds the permitted Measured/Monitored requests per day set forth in the Order, then the Fees payable by Customer for each subsequent annual billing period during the Term shall be adjusted upward to Cequence’s then-current rate based on Customer’s Measured/Monitored requests per day.

5.3. Payment. Customer shall be invoiced for all Licensed Software and Support and Maintenance Services prior to the start of the applicable license term. Payment of the invoice shall be due as set forth in the Order, or if not stated in the Order, no later than thirty (30) days from the date of the invoice. Interest on late payments shall accrue at the lesser of one and one half percent (1.5%) per month or the highest amount permitted by applicable law.

5.4. Taxes. All Fees provided for in this Agreement are exclusive of any taxes, duties or similar charges imposed by any government. Customer shall pay or reimburse Cequence for all federal, state or local sales, use, personal property, excise or other taxes, fees or duties arising out of this Agreement or the transactions contemplated by this Agreement, except for taxes based on the net income of Cequence.

6. Confidentiality

6.1.  “Confidential Information” of a party means any confidential or proprietary knowledge, information, materials, or trade secrets in which such party has rights, disclosed to the other party (“Receiving Party”), and which either party would reasonably expect or consider to be confidential or proprietary information, including but not limited to, information regarding business methods, products, services, finances, customers and potential customers, suppliers, pricing and rates, costs, expenses, marketing, technologies, properties, specifications, personnel, or organization, in various media, including but not limited to, oral, written, and electronic data form. Without limiting the generality of the foregoing, Cequence’s Confidential Information includes all Licensed Software, any and all technical information related thereto, and any Feedback. Customer’s Confidential Information shall be expressly limited to information relating to Customer’s business and financial plans, operations, and strategies.

6.2. Confidentiality. During the Term and until such time Confidential Information becomes subject to an exception set forth in Section 6.4, each Receiving Party: (i) shall treat as strictly confidential all Confidential Information disclosed by the other party (the “Disclosing Party”); (ii) shall not disclose, disseminate, distribute, or transfer such Confidential Information to any third party other than Receiving Party’s personnel with a need to know such information for the purposes of this Agreement and who are bound by written obligations of confidentiality no less restrictive than the terms of this Agreement without the express written consent of Disclosing Party; (iii) shall not use such Confidential Information except solely for the purpose of its performance under this Agreement; and (iv) shall protect the Confidential Information by using at least the same degree of care as the Receiving Party uses to protect its own confidential information of like nature to prevent any unauthorized access, use, dissemination, or publication of such Confidential Information, but in no event less than reasonable care. The Receiving Party shall promptly notify the Disclosing Party in writing when it becomes aware of any unauthorized access, use, dissemination, or publication of such Confidential Information.

6.3. Compelled Disclosure. Upon prior written notice (to the extent legally permissible) to the Disclosing Party, the Receiving Party may disclose Disclosing Party’s Confidential Information to the extent: (i) is required by law or regulation to be disclosed; or (ii) is required by order of a court or other governmental body. The Receiving Party agrees to assist the Disclosing Party (at the Disclosing Party’s expense) in all proper ways to limit or prevent the disclosure of such Confidential Information, and to obtain confidential treatment for any information so disclosed.

6.4. Return of Materials. The Receiving Party will return or destroy (at the Disclosing Party’s election) all Confidential Information (including all copies) received from the Disclosing Party within its possession, custody, or control promptly upon termination or expiration of this Agreement or upon the earlier written request of the Disclosing Party. At the request of the Disclosing Party, after such return or destruction, the Receiving Party shall certify in writing that such return or destruction has been accomplished.

6.5. Exceptions. Confidential Information does not include information which as evidenced in writing by the Receiving Party: (i) is known to the Receiving Party or later received from a third party, in each case without any confidentiality restriction; or (ii) is publicly known or becomes publicly known and made generally available through no wrongful act of the Receiving Party.

6.6. Privacy Policy. Customer is solely responsible for publishing and maintaining a privacy policy that adequately provides all applicable notices and obtaining all applicable consents with respect to the collection, use, and disclosure of data using the Licensed Software and as otherwise provided herein, and will indemnify an hold harmless Cequence from any and all harm arising as a result of or in connection with any violation of the foregoing.

7. Term and Termination

7.1. 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 6.6.2 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.”

7.2. 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.

7.3. Effect of Termination. Upon the expiration or termination of this Agreement for any reason, all licenses shall immediately terminate and Customer shall cease all use of the Licensed Software. Sections 1, 2.3, 3, 6, 7.3, and 8 through 11, and all payment obligations accruing prior to expiration or termination shall survive the expiration or termination of this Agreement for any reason.

8. Warranty Disclaimer. CUSTOMER ACKNOWLEDGES THAT THE LICENSED SOFTWARE IS SUBJECT TO SUPPORT AND MAINTENANCE SERVICES AS SET FORTH IN SECTION 3.4 AND NOT WARRANTY. THE LICENSED SOFTWARE, SERVICES, AND ANY OTHER MATERIALS PROVIDED HEREUNDER ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, AND CEQUENCE AND ITS SUPPLIERS AND LICENSORS HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, WETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, AVAILABILITY, OR RESULTS. CEQUENCE DOES NOT WARRANT THAT THE LICENSED SOFTWARE, SERVICES OR ANY MATERIALS PROVIDED HEREUNDER WILL BE ERROR-FREE OR THAT SUCH WILL WORK OR BE PROVIDED WITHOUT INTERRUPTIONS.

9. Indemnification

9.1. Indemnification by Cequence. Subject to Section 9.2, Cequence shall, at its expense, defend, or at its option settle, any claim brought against Customer by a third party to the extent the claim alleges that the Licensed Software as delivered to Customer and used as authorized in this Agreement and as provided in any applicable Documentation, infringes any U.S. copyright or patent, and will pay any amounts finally awarded thereon or agreed to by Cequence in settlement thereof; provided that Customer provides Cequence with: (i) prompt written notice of such claim; (ii) sole control over the defense and settlement of such claim; and (iii) all information and assistance reasonably requested by Cequence in connection with the defense and settlement of such claim.

9.2. Limitations. Notwithstanding the provisions of Section 9.1, Cequence will have no obligation for any claim of infringement to the extent such claim arises out of or is based upon: (i) use of the Licensed Software in combination with software, products, or services not provided by Cequence; (ii) any alteration or modification of the Licensed Software, in whole or in part, not made by Cequence; (iii) Customer’s failure to use the Licensed Software in accordance with this Agreement or the Documentation; (iv) use of Licensed Software provided by Cequence to comply with the designs, specifications, or requirements requested by Customer; (v) any third party software, including open source; or (vi) use of any specified release of the Licensed Software after Cequence notifies Customer that continued use of such release may subject Customer to a claim of infringement.

9.3. Disclaimer. THE FOREGOING PROVISIONS OF THIS SECTION 9 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF CEQUENCE, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS BY THE LICENSED SOFTWARE, SERVICES, ANY OTHER MATERIALS PROVIDED HEREUNDER OR ANY PART THEREOF.

10. Limitation of Liability. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, RELIANCE, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOSS OF BUSINESS, LOSS OF USE, LOST PROFIT, LOSS OF DATA, OR DAMAGE TO NETWORKS OR EQUIPMENT. NEITHER PARTY’S TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL EXCEED THE AMOUNT PAID BY CUSTOMER FOR THE RESPECTIVE LICENSED SOFTWARE OR SERVICE TO WHICH THE CLAIM RELATES DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE APPLICABLE CLAIM. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, THE LIMITATIONS OF THIS SECTION 10, WILL NOT APPLY TO OR OTHERWISE LIMIT THE BREACH OF CONFIDENTIALITY OBLIGATIONS IN SECTION 6, BREACH OF CEQUENCE’S INTELLECTUAL PROPERTY RIGHTS, OR INDEMNITY OBLIGATIONS SET FORTH IN SECTION 9. THE FOREGOING LIMITATIONS APPLY WHETHER OR NOT A PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES AND IRRESPECTIVE OF THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN.

11. Miscellaneous. Any notice required or permitted to be given hereunder shall be given in writing at the address of each part set forth in the Order, or to such other address as either party may substitute by written notice to the other. The Agreement will be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law, and any dispute arising hereunder shall be subject to the exclusive jurisdiction and venue of the courts located in Santa Clara County, California. The parties agree that the Uniform Computer Information Transaction Act (or any statutory implementation of it) and the United Nations Convention on the International Sale of Goods will not apply with respect to this Agreement or the parties’ relationship. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by Customer without the prior written consent of Cequence, but may be assigned by Cequence without restriction and any attempted assignment in violation of the foregoing will be void. For the purpose of the foregoing, “assignment” will be deemed to include any transaction or series of related transactions in which any previously unaffiliated third party obtains control, directly or indirectly, over Customer, including by sale of stock, merger, operation of law, or otherwise. Cequence may assign this Agreement without restriction. Subject to the foregoing, this Agreement will be binding upon the parties’ respective successors and permitted assigns. This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof, and supersedes all previous communications and agreements between the parties with respect to said subject matter (including without limitation any prior Evaluation Agreement covering the Licensed Software). No amendment or modification hereof will be valid or binding upon either party unless made in writing and signed by the authorized representatives of both parties. This Agreement supersedes all terms and conditions in any purchase order or other document submitted by Customer that are additional to or inconsistent with this Agreement, and all such terms and conditions are hereby rejected. In the event that a portion of this Agreement is held unenforceable, the unenforceable portion will be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of the Agreement will remain in full force and effect. Failure to strictly enforce any provision of this Agreement will not be construed as a waiver of any provision or right, and waiver by either party of a breach of any provision of this Agreement or the failure by either party to exercise any right hereunder shall not operate or be construed as a waiver of any subsequent breach of that right or as a waiver of any other right. Customer agrees to comply with all applicable U.S. and foreign export control laws and regulations applicable to the Licensed Software licensed hereunder. This Agreement will not create or be deemed to create any agency, partnership, or joint venture between the parties.

EXHIBIT A
SUPPORT AND MAINTENANCE SERVICES

1. Support and Maintenance. Customer may initiate a request for Support and Maintenance Services via Cequence’s website at www.cequence.ai, email at support@cequence.ai, or telephone at 844-978-3258. Cequence will use commercially reasonable efforts commensurate with the severity of the error to respond to such request within the target response and target resolution times specified below. Cequence will make its support and maintenance personnel available 5 business days (Mon-Fri, excluding U.S. public holidays) a week, 7 a.m. to 7 p.m. Pacific Time.

2. Liaison. Customer will designate a technical liaison to solve technical problems and will identify such person to Cequence in writing promptly after the Effective Date. Customer may change such liaison upon written notice to Cequence from time to time at reasonable intervals. Cequence will not be obligated to provide Support and Maintenance Services to any person other than the designated liaison.

3. Service Levels. Upon receiving a support request, Cequence will, at its sole discretion, classify the problem according to the following criteria, and, subject to Customer complying with the Customer responsibilities set forth below, Cequence will use commercially reasonable efforts to respond to, and to resolve such problems in accordance with the following:

SeverityDescriptionTarget Response TimeTarget Resolution Time
HighSystem or critical subsystem down with critical impact on service delivery. No workaround or alternative is available.Within one (1) hourWithin one (1) business day
MediumSystem performance substantially degraded or restricted; system and/or data exposed to potential loss or interruption.Within four (4) hoursWithin one (1) business week
LowMinor imperfection, discrepancy, or peculiarity, or system functionality is marginally affected or unaffected; no critical impact on service delivery.Within one (1) dayNext software release

4. Exclusions. Support and Maintenance Services will not include services requested as a result of, or with respect to, the following, and any services requested as a result thereof will be charged to Customer at Cequence’s then-current rates: (i) failure by Customer to maintain the proper operating environment to use the Licensed Software in accordance with this Agreement or instructions provided by Cequence; or (ii) modification, alteration, or addition of any portion of the Licensed Software by a person other than Cequence.

5. Customer Responsibilities. Cequence’s obligation to provide Support and Maintenance Services is subject to the following:

(a) Customer shall provide Cequence with access to Customer’s personnel, equipment and testing environments during normal business hours as necessary or appropriate for Cequence to perform Support and Maintenance Services.

(b) Customer shall document and promptly report all errors or malfunctions in the Licensed Software to Cequence. Customer shall take all steps necessary to carry out procedures for the rectification of errors or malfunctions within a reasonable time after such procedures have been received from Cequence.

6. Software Updates. Cequence may update the Licensed Software from time to time, and proper operation of Licensed Software depends upon Customer ensuring that such Software Updates are installed automatically by the Licensed Software. Cequence shall provide to Customer any Software Updates that Cequence generally provides to its customers free of charge; however, nothing in this Agreement will obligate Cequence to provide to Customer any software that Cequence does not generally provide to its customers free of charge. Cequence shall have no obligation to provide Support and Maintenance Services for any version of the Licensed Software that was released more than twelve (12) months before the then-most current version. Cequence may, at its option, provide Support and Maintenance Services for such version of the Licensed Software at Cequence’s then-current hourly rates.