radius - subscription agreement
This Software Subscription Agreement (“SSA”) by and between OccamSec, LLP, a limited liability partnership, with offices located at 524 Broadway, New York, NY 10012 (“OccamSec”), and the customer identified on a signed Order Form (“Customer”), governs the provision of any Subscriptions, Services, and other materials or information provided by OccamSec to Customer. This SSA, Order Form(s), exhibits or statements of work(s) separately executed by the parties, and other documents expressly referenced herein or referencing this SSA are collectively referred to as the “Agreement.” Unless specified to the contrary in an Order Form, this Agreement will be effective on the date of Customer’s signature on the Order Form (the “Effective Date”).
1.1 “Activation Date” means the date on which Customer is provided access to the Subscription. 1.2 “Authorized Administrator” – means the number of employees or Consultants of Customer identified on an Order Form who; (a) are given password-protected access to the Subscription; (b) have the authority on behalf of Customer to administer Named Users within the Subscription, and (c) who may contact OccamSec Support directly in accordance with Section 2.4 herein. 1.3 “OccamSec Technology” means OccamSec’s proprietary software, technology, frameworks, platforms, methodologies, facilitation guides, questionnaires, techniques, general purpose consulting and related know-how, logic, coherence and methods of operation of systems, user interfaces, screen designs, presentation materials, and best-practices documentation, including any enhancements, modifications or derivatives thereof, which are provided to Customer. Subscriptions, maintenance, and Services each individually and collectively include elements of OccamSec Technology. 1.4 “Consultant” means an individual or entity providing services or other assistance to Customer or OccamSec in connection with each party’s respective obligations under this Agreement, as applicable. 1.5 “Customer Data” means all data, information and materials provided by Customer for use with the OccamSec Technology.
2. services provided
2.1 Subscription Access. Subject to the terms and conditions of this Agreement, OccamSec will make the Subscription available to Customer over the internet for Customer’s use in Customer’s internal business only. Unless otherwise provided in an Order Form, Subscriptions may only be accessed by the total number of Named Users and Authorized Administrators, and by the appropriate Customer divisions, business units, and/or geographies specified in the applicable Order Form. Unless otherwise stated in an Order Form, Customer is responsible for integration or Customer-side configuration and deployment of the Subscription. 2.2 Security. OccamSec will operate an information security program utilizing industry standard policies and technologies to protect Customer Data from unauthorized disclosure or access. In addition to the Customer’s responsibilities outlined elsewhere in the Agreement, Customer shall take commercially reasonable security precautions to prevent unauthorized or fraudulent use of OccamSec Technology by Customer, Customer’s employees, Consultants, agents, or any other third parties authorized by Customer to access the Subscription on Customer’s behalf. 2.3 Support. During the Term, OccamSec will provide remote email support to the aggregate number of Authorized Administrators specified in applicable Order Form(s). The support email address will be identified on the applicable Order Form. Such support consists solely of assistance with usage questions or troubleshooting bugs related to the Subscription supplied by OccamSec (“Support”). Support hours are from 8:00 a.m. to 6:00 p.m. U.S. Eastern Time, Monday through Friday, (except U.S. federal holidays).
3. fees and payment terms
3.1 Fees. Unless otherwise provided in an Order Form, OccamSec may invoice Customer for all fees and all other charges immediately following the Effective Date. All fees specified in an Order Form are in U.S. Dollars and all payments must be submitted in U.S. Dollars. Unless specified to the contrary in an Order Form, fees for any Renewal Term may be increased by OccamSec and will be invoiced on the same schedule as in effect for the billing period immediately prior to the expiration of the Term. Where applicable, and with written Customer approval, Customer will reimburse OccamSec for all reasonable travel, food, lodging and other out-of-pocket expenses incurred in performance of Services. 3.2 Payment Due Date. Unless otherwise provided in the applicable Order Form or Statement of Work, payment from Customer is due within thirty (30) days from the date of invoice. 3.3 Late Payment. For any late payment, Customer may be required to pay interest at the rate of one and one-half percent (1.5%) per month (prorated for partial periods) or at the maximum rate permitted by law, whichever is less. In addition to other rights and remedies available to OccamSec hereunder together with cost of collection (including reasonable legal fees), OccamSec may suspend access to Subscription and stop providing Services if Customer does not correct any delinquent amounts within ten (10) days of receipt of written notice of nonpayment. Any previously suspended Subscription and/or Services will be promptly restored following OccamSec’s receipt of all delinquent amounts. Suspension under this Section 3.3 will not constitute a termination of this Agreement, nor will it relieve Customer of obligations or liabilities under this Agreement. 3.4 Taxes. All amounts due under an Order Form do not include taxes or levy (including interest and penalties). Customer will reimburse OccamSec and hold OccamSec harmless for all sales, use, VAT, excise, property or other taxes or levies which OccamSec is required to collect or remit to applicable tax authorities. This provision does not apply to OccamSec’s income or franchise taxes, or any taxes for which Customer is exempt, provided Customer has furnished OccamSec with a valid tax exemption certificate.
4. customer obligations
4.1 Customer Control. Customer will be solely responsible for administering and monitoring the use of login IDs and passwords provided by Authorized Administrators within the Subscription or on behalf of Customer by OccamSec. Upon the termination of employment of any User or Authorized Administrator, Customer will terminate that individual’s login ID and password. OccamSec is not responsible for any damages resulting from Customer’s failure to manage the confidentiality of its login ID and passwords and Customer is responsible for any actions arising out of use or misuse of Customer’s login IDs. 4.2 Prohibited Uses and Customer Restrictions. Customer must not modify, rent, sublease, sublicense, assign, use as a service bureau, copy, lend, adapt, translate, sell, distribute, derive works from, decompile, disassemble or reverse engineer the OccamSec Technology provided under this Agreement, except as explicitly permitted hereunder. Unless otherwise expressly set forth in an Order Form, the Subscription and Services must be used solely by Customer, and not (by implication or otherwise) by any parent, other division, subsidiary or affiliate of Customer. Customer must not permit a competitor of OccamSec to access the OccamSec Technology, except with OccamSec’s prior written consent. Customer must not: (a) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs in, to or from the OccamSec Technology; (b) interfere with or disrupt the integrity or performance of the OccamSec Technology, or the data contained therein; (c) use the OccamSec Technology in a manner inconsistent with its applicable documentation; or (d) attempt to gain unauthorized access to the OccamSec Technology or related systems or networks.
5. ownership, rights & confidential information
.1 Customer Ownership and License. As between Customer and OccamSec, and subject to the rights of OccamSec set forth below, Customer owns all right, title and interest in and to all Customer Data and all Customer-provided marketing plans, designs, images, templates, sketches, artwork, logos, trade names, trademarks, and website or email text copy and type (“Customer Content”). Customer has sole responsibility for the accuracy, quality and right to use of all Customer Data and Customer Content. Customer grants to OccamSec and its suppliers a non-exclusive, fully paid-up license to use, reproduce, store, modify and publicly display Customer Data and Customer Content, to the extent necessary for OccamSec and its suppliers to perform their obligations under this Agreement. 5.2 Results. Customer acknowledges and agrees that OccamSec may (a) anonymize and aggregate benchmarking results of Customer use of the OccamSec Technology with results of other customers’ use (collectively “Results”); and (b) use and disclose the Results for any purpose provided that the Results do not individually identify Customer or Customer Data. 5.3 OccamSec Ownership. As between Customer and OccamSec, OccamSec and/or its licensors are the sole owners of all right, title and interest in and to the OccamSec Technology. If Customer provides any feedback, comments, suggestions, ideas, requests or recommendations for modifications or improvements to the OccamSec Technology (“Feedback”), Customer hereby assigns and agrees to assign all right, title and interest in any such Feedback to OccamSec to be used for any purpose. All rights not expressly granted to Customer hereunder are reserved by OccamSec and its licensors. 5.4 OccamSec Technology License. Subject to payment in full to OccamSec as specified in an Order Form, OccamSec grants Customer a royalty free, non-exclusive, non-transferable, time-bounded license to use, for Customer’s internal business purposes only and subject to the terms of this Agreement, the OccamSec Technology as included in Subscriptions, maintenance and Services. For use in connection with Subscriptions and Services, the term of Customer’s permitted use will be the duration of the Subscription. 5.5 Confidential Information. “Confidential Information” means any information disclosed by one party (“Discloser”) to the other party (“Recipient”), either directly or indirectly, in writing, orally or by inspection, which is designated as “Confidential,” “Proprietary” or some similar written designation or otherwise reasonably identifiable as confidential information. Information communicated orally will be considered Confidential Information if the information is identified as being Confidential Information at the time of disclosure. Notwithstanding the foregoing, the following is deemed OccamSec Confidential Information with or without marking or written confirmation: (a) the OccamSec Technology, product and service information, pricing information, and other related materials furnished by OccamSec; (b) the oral and visual information relating to the OccamSec Technology; (c) the Subscription’ environment and tools, materials, documentation, white-papers, guides, data sheets, training materials, methodology and (d) the terms and conditions of this Agreement. This Agreement imposes no obligation upon a Recipient with respect to Confidential Information that: (a) is or becomes publicly available through no breach of this Agreement by Recipient; (b) is already in the possession of Recipient at the time of disclosure as shown by Recipient’s files and records immediately before the time of disclosure; (c) is obtained by Recipient from a third party without obligation of confidentiality; or (d) is independently developed by Recipient without use of or reference to Discloser’s Confidential Information, as demonstrated by Recipient’s documents. Recipient will only use Discloser’s Confidential Information to exercise its rights or perform its obligations under this Agreement and will protect Discloser’s Confidential Information by using the same degree of care that Recipient uses to safeguard its own confidential or proprietary information of a like nature from unauthorized use, disclosure, or dissemination, but not less than a reasonable degree of care. Recipient will restrict access to Discloser’s Confidential Information to Recipient’s employees and Consultants who require such access in the course of their assigned duties and responsibilities and who have been informed of Recipient’s obligations of confidence and have agreed in writing to preserve confidentiality of such information under terms and conditions no less restrictive than those set forth herein, provided that Customer must not permit a competitor of OccamSec to access OccamSec’s Confidential Information without OccamSec’s prior express written approval. If Discloser’s Confidential Information is required to be disclosed under any law or judicial order, Recipient will (to the extent permitted by law) give Discloser prompt notice thereof and use its commercially reasonable efforts to seek or cooperate with Discloser in seeking a protective order at Discloser’s request and expense. Each party acknowledges that any unauthorized disclosure or use of the Confidential Information may cause the other party irreparable harm and that such party will be entitled to seek injunctive relief in the event the other party does not fulfill its obligations under this Section.
6.1 Intellectual Property Indemnification. OccamSec will indemnify, defend and hold harmless Customer from and against any third party claim brought against Customer alleging that Customer’s permitted use of the Subscription infringes any United States patent or trademark, or any copyright, or misappropriates a trade secret of a third party. If Customer's use of the Subscription is, or in OccamSec's opinion is likely to be, enjoined due to the type of infringement specified above, OccamSec may, at its option and expense, obtain a license for the continued use of the Subscription or modify the Subscription to provide substantially equivalent functions and are no longer infringing, or, if neither of the foregoing alternatives are implemented, terminate Customer’s right to the allegedly infringing portion of the Subscription and refund to Customer any amounts prepaid for such Subscription for the period following such termination. This Section 6 states the entire liability of OccamSec with respect to any type of third party infringement claim. 6.2 Customer Indemnification. Customer will indemnify, defend and hold harmless OccamSec from and against any claim brought against OccamSec arising out of a breach or an alleged breach by Customer of the terms of this Agreement. 6.3 Mutual Indemnification. Each Party will indemnify and defend the other Party against any third party claims arising from the indemnifying Party’s gross negligence or willful misconduct. 6.4 General Indemnification Terms. In case of any indemnified claim under this Section 6, the indemnified party will (a) give written notice to the indemnified party within thirty (30) days of becoming aware of an indemnified claim; (b) provide control of the defense of the claim to the indemnifying party, including the right to settle; provided however, that the indemnifying party will not settle any such suit or claim without the indemnified party’s prior written consent, which will not be unreasonably withheld or delayed; and (c) provide reasonable cooperation in the defense thereof.
7.1 Mutual Representations and Warranties. Each Party represents and warrants that (a) it has the right and power to enter into this Agreement, and (b) an authorized representative has accepted this Agreement. 7.2 Limited Subscription Warranty. OccamSec warrants that the Subscription will perform in all material respects with the functions described in the then-current OccamSec product documentation included in the Subscription for a period of ninety (90) days from the Activation Date. This warranty does not apply if the Subscription is not administered by Customer in accordance with this Agreement, or any applicable instructions and training provided by OccamSec. If the Subscription fails to operate as warranted in this Section 7.2 and Customer notifies OccamSec in writing of the nature of the non-conformance (“Notice”), OccamSec will use commercially reasonable efforts to promptly repair or replace the non-conforming Subscription without charge. If, after a reasonable opportunity to cure, OccamSec does not remedy the non-conformance, Customer may no later than sixty (60) days after giving the Notice, terminate the Subscription portion of the Order Form and receive a refund of the prepaid Subscription fees for the period following the date of Notice. The foregoing provides Customer’s sole remedy for breach of the exclusive warranty in this Section 7.2. 7.3 Services Warranty. OccamSec warrants that all Services performed hereunder will be performed in a workmanlike and professional manner. 7.4 Disclaimer of Warranties. EXCEPT AS PROVIDED IN THIS AGREEMENT, OCCAMSEC MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING EXPRESS OR IMPLIED WARRANTIES OF MERCHANT ABILITY , FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. OccamSec does not warrant that the Subscription or the data stored through the use of the Subscription are not susceptible to intrusion, attack or computer virus infection.
8. limitation of liability
8.1 Liability Cap. IN NO EVENT WILL OCCAMSEC, OCCAMSEC’S LICENSORS OR CONSULTANTS BE LIABLE UNDER ANY THEORY OF LIABILITY, FOR DAMAGES WHICH, IN THE AGGREGATE, EXCEED THE AMOUNT OF THE FEES PAID BY CUSTOMER FOR THE SUBSCRIPTION AND SERVICES GIVING RISE TO SUCH DAMAGES IN THE ONE (1) YEAR PERIOD PRIOR TO THE CLAIM. 8.2 Disclaimer of Damages. IN NO EVENT WILL OCCAMSEC, OCCAMSEC’S LICENSORS OR CONSULTANTS BE LIABLE, FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, BUSINESS INTERRUPTION OR LOST PROFITS EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY .
9. term and termination
10.1 Entire Agreement. This Agreement constitutes the entire agreement between the parties relating to the subject matter hereof and supersedes all previous agreements or representations, whether oral or written. This Agreement may not be modified or amended, except in writing signed by an authorized representative of each party. Any ordering document (e.g., purchase order) that originates from Customer will not be binding on OccamSec, and any accompanying terms and conditions are null and void. In the event of any conflict among the terms of this Agreement, an Order Form, or a SOW, the following order of precedence will apply: (1) Order Form; (2) Agreement; (3) SOW. 10.2 Compliance with Laws. OccamSec agrees to comply with all laws applicable to OccamSec in the provision of Subscriptions and Services hereunder. Customer agrees to comply with all laws applicable to Customer in its receipt and use of Subscriptions and Services hereunder. 10.3 Counterparts. This Agreement (including Order Forms) may be executed in counterparts, which together form one legal instrument. Any executed copy of this Agreement made by reliable means (e.g., photocopy, scan copy, electronic signature or facsimile) is considered an original. 10.4 Notices. Notices under this Agreement will be in writing, signed and provided to the contact and address indicated in the Order Form, provided that a party may change such contact or address by written notice to the other party. All notices under this Agreement will be in writing and sent by (a) personal delivery, including confirmed scan delivered by email; (b) overnight courier; or (c) first class mail, certified or registered, return receipt requested. Notices to OccamSec will be addressed to the attention of: Chief Financial Officer. 10.5 Publicity. OccamSec may identify Customer as a customer of OccamSec. OccamSec may issue a press release announcing the relationship formed by the Agreement, which will provide to Customer for a period of review and comment prior to release. OccamSec may issue a press release announcing the results obtained by Customer from using the Subscription, subject to the prior approval of Customer, not to be unreasonably withheld or delayed. 10.6 Headings. Headings are for reference purposes only and have no substantive effect. 10.7 Assignment. In the event of Customer’s acquisition of, or merger with, a third party Customer may continue to use the OccamSec Technology and the obligations and rights of Customer under this Agreement will apply to, and may be exercised only in connection with, the operations of Customer as they existed on the date prior to the acquisition or merger. Customer may not otherwise assign this Agreement or otherwise transfer any rights hereunder whether by operation of law, change of control, or in any other manner, without the prior written consent of OccamSec. Any assignment or transfer in violation of this Section will be null and void. 10.8 Choice of Law. This agreement will be governed and interpreted in accordance with the laws of the State of New York without regard to the conflicts of law provisions of any state or jurisdiction. Any action will be brought in the state or federal courts located in New York, New York. 10.9 Dispute Resolution. Any dispute between the parties arising out of this Agreement will be first submitted to senior management of both parties for a good faith attempt at amicable resolution. If the parties cannot settle the dispute within thirty (30) days after such meeting of senior management, the dispute will be mediated in confidential mediation proceedings by a mutually acceptable mediator to be chosen by OccamSec within thirty (30) days after written notice by either party demanding mediation. OccamSec and Customer will equally share costs of the mediation. The use of any of the above-mentioned procedures will not be construed under the doctrines of laches, waiver, or estoppel to affect the rights of either party adversely. Nothing in this Section will prevent OccamSec from collecting fees due under Section 3, nor will it prevent either party from resorting to judicial proceedings, if (a) good faith efforts to resolve the dispute under these procedures have been unsuccessful; (b) the claim or dispute involves intellectual property rights; or (c) interim relief from a court is necessary to prevent serious and irreparable injury to that party or to others. 10.10 Force Majeure. Except for Customer’s payment obligations, neither party will be liable to the other party for any delay or failure of OccamSec to perform its obligations hereunder if such delay or failure arises from any cause or causes beyond the reasonable control of such other party. Such causes include, but are not limited to, acts of God, floods, fires, loss of electricity or other utilities, or delays by Customer in providing required resources or support or performing any other requirements hereunder. 10.11 Independent Contractor. OccamSec is an independent contractor and nothing in this Agreement will be deemed to make OccamSec an agent, employee, partner or joint venture of Customer. OccamSec will have no authority to bind, commit, or otherwise obligate Customer in any manner whatsoever. 10.12 Nonsolicitation. During the term of this Agreement and for a period of two (2) years thereafter, each party agrees not to hire, solicit, nor attempt to solicit, the services of any employee of the other party or Consultants of OccamSec without the prior written consent of such other party. Each party further agrees not to hire, solicit, nor attempt to solicit, the services of any former employee of the other party or former Subcontractor of OccamSec for a period of one (1) year from such former employee’s or Consultants last date of service with such other party. Violation of this provision will entitle aggrieved party to liquidated damages against the other party equal to two hundred percent (200%) of the solicited person’s gross annual compensation. 10.13 Third Parties. OccamSec will have the right to use Consultants in performance of its obligations and services hereunder and, for purposes of this Agreement, all references to OccamSec or its employees shall be deemed to include such Consultants. 10.14 No Waiver. No failure or delay in enforcing any right or exercising any remedy will be deemed a waiver of any right or remedy. 10.15 Severability and Reformation. Each provision of this Agreement is a separately enforceable provision. If any provision of this Agreement is determined to be or becomes unenforceable or illegal, such provision will be reformed to the minimum extent necessary in order for this Agreement to remain in effect in accordance with its terms as modified by such reformation. The Parties have accepted this Software Subscription Agreement by the signing of any Order Form(s) referencing it.