THIS TERMS OF SERVICE AGREEMENT (the “Agreement”) effective as of the date the Client (as defined below) first uses the Software (as defined below) (the “Effective Date”). For purposes of this Agreement, “Client” means that person or entity that registers as such with Vulsec, LLC (“Vulsec”) and “Software” means the security software provided by Vulsec, including without limitation Interlink and Halogen.
1. LICENSE. Vulsec hereby agrees to provide a temporary, non-exclusive license to the Client to use the Software solely for the purpose of assessing assets the Client owns or has full permission to assess. The Client’s use of the Software constitutes acceptance of such license in accordance with the terms and conditions of this Agreement and, with respect to an asset assessed, a representation from the Client that it either owns or has full permission to assess such asset. The Client may not directly or indirectly (a) sell, lease, redistribute or transfer any of the Software or related intellectual property, including without limitation, all improvements, enhancements, modifications and derivative works related thereto (together, the “Licensed Materials”) on a stand-alone basis; (b) decompile, disassemble, reverse engineer, or otherwise attempt to derive, obtain or modify the source code of the Licensed Materials; (c) reproduce, modify, translate or create derivative works of all or any part of the Licensed Materials; (d) rent, lease or loan the Licensed Materials in any form to any third party; (e) remove, alter or obscure any proprietary notice, labels, or marks on the Licensed Materials; or (f) sell, resell, loan or otherwise provide access to third parties to the APIs, client interface, or communication interface shipped by Vulsec and provided to the Client. For the avoidance of doubt, The Client may not include or redistribute the Licensed Materials on physical or virtual appliances to perform on-site scans. The Client may not use the Licensed Materials, and the license contained in this Section 1 will be deemed void, to the extent the Client provides network security software services competitive with those offered by Vulsec. Vulsec will provide service level and recovery point objective support with regard to the Software in accordance with the terms and conditions of Schedule A. To the extent Vulsec is to provide services (“Services”) to the Client in addition to permitting access to the Software, the scope and conditions of such services will be provided in a separate document (a “Services Agreement”), which Services Agreement will incorporate this Agreement to the extent the Client will also be using the Software.
2. INTELLECTUAL PROPERTY. Vulsec will retain all ownership rights and interests in the Licensed Materials. Any rights in or to the Licensed Materials (including rights of use) not expressly granted in this Agreement are reserved by Vulsec.
3. FEES. During the Term (as defined below), the Client will be invoiced on a monthly basis for use of the Software in accordance with the terms set forth on Vulsec’s website from time to time. To the extent the Client is also receiving Services, the terms and conditions of such Services, including fees and expenses related thereto, will be set forth in the Services Agreement. Payment will be due within 30 days of Vulsec’s delivery of an invoice and unpaid balances will thereafter incur a monthly finance charge in the amount of 1.5%. If the Client disputes any portion of an invoice, the Client agrees to pay the undisputed portion of the invoice and to submit a written claim within 15 days of receipt of the invoice documenting the reasons and amount in dispute. Failure by the Client to submit a written dispute of charges within such time shall be deemed final acceptance of all charges. The Client authorizes Vulsec to initiate ACH and credit card charges for use of the Software payable by ACH or credit card. To keep up with inflation and increasing technology costs, an annual 5% escalation will be applied to the Client’s monthly fee on the anniversary of the Effective Date.
4. TERM. The term of this Agreement (the “Term”) will begin on the Effective Date and continue in effect terminated by either party with 60 days prior written notice. Neither termination of this Agreement nor waiver of any right to terminate under this Agreement shall impair or limit any additional rights or remedies that the Client or Vulsec may have at law or in equity. The Client shall be responsible for payment of all fees incurred prior to the termination. At any time when the Client is in breach of any payment obligation under this Agreement or, Vulsec may terminate or suspend the license to use the Software and in such circumstance Vulsec shall have no liability for failure to provide access to the Software. Sections 4, 5, 8 and 9 shall survive termination, suspension or expiration for this Agreement in accordance with their respective terms.
5. CONFIDENTIAL INFORMATION. Both parties acknowledge that all Confidential Information (as defined below) is material and confidential and greatly affects the goodwill and the effective and successful conduct the parties respective businesses and operations, and that maintaining confidentiality of the Confidential Information is reasonably necessary to protect the legitimate business interests of the parties. Accordingly, as a material inducement to the parties to enter into this Agreement, both the parties hereby agree to maintain and receive all such Confidential Information in strict confidence and that neither the parties nor any of its representatives or subcontractors shall, at any time, directly or indirectly, divulge, reveal or communicate any Confidential Information to any third party whatsoever, or use, pursue or exploit any Confidential Information for its own benefit or for the benefit of others. Both parties agree that neither it nor any of its representatives or subcontractors will infringe on the other party’s respective intellectual property or other rights in said Confidential Information, and acknowledges that nothing herein shall be construed as granting a license or right to use said Confidential Information except for the specific purposes set forth herein. For purposes of this section “Confidential Information” means any and all tangible or intangible information furnished by the parties or their representatives, whether furnished before or after the date hereof, whether oral, written, or recorded/electronic, and regardless of the manner in which it is furnished relating to parties, their subcontractors or their affiliates. For the avoidance of doubt, the Client’s name, logo, and use of the Software shall not be “Confidential Information” and Client hereby authorizes Vulsec to disclosure such information on its website and other marketing materials.
6. INDEMNIFICATION. Client shall defend, indemnify, hold harmless, and inure to the benefit of Vulsec, and each of its principals, agents, associates and subcontractors from any and all loss, damage, expense or liability resulting from or arising out of, any act or omission of the Client or its representatives or from any breach or default of this Agreement that is caused or occasioned by the acts or omissions of the Client or its representatives. Vulsec will defend, indemnify, hold harmless, and inure to the benefit of Vulsec, and each of its principals, agents, associates and subcontractors from any and all loss, damage, expense or liability arising out of or in connection with an allegation that use of the Software infringes a copyright, a U.S. patent issued as of the Effective Date or a trademark of a third party or breach of this Agreement by Vulsec.
7. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY. VULSEC MAKES NO REPRESENTATION, WARRANTY OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SOFTWARE OR ANY CONTENT. VULSEC DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SOFTWARE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SOFTWARE, OR THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL OBTAINED BY THE CLIENT THROUGH THE SOFTWARE, WILL MEET THE CLIENT’S REQUIREMENTS OR EXPECTATIONS, (C) ANY CONTENT WILL BE ACCURATE OR RELIABLE, (D) ERRORS OR DEFECTS WILL BE CORRECTED OR (E) THE SOFTWARE OR THE SERVER(S) THAT MAKE THE SOFTWARE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SOFTWARE AND ALL CONTENT IS PROVIDED TO THE CLIENT STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED BY US TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. OTHER THAN WITH RESPECT TO THE CONFIDENTIALITY OBLIGATIONS IN SECTION 5, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY THE CLIENT IN THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO ANY SUCH LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, THE USE OR INABILITY TO USE OR ACCESS THE SOFTWARE OR THE CONTENT AND ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES
8. NON-SOLICITATION. During the Term and for one year thereafter (“Restricted Period”), the Client will not, without the prior written consent of the Vulsec, either directly or indirectly and on Client’s own behalf or in the service or on behalf of others, hire any employee or contractor who was engaged by Vulsec at any time during one year period prior to termination or expiration of the Term (“Restricted Personnel”). Client acknowledges that its hiring or engagement of any Restricted Personnel is likely to cause irreparable damage to Vulsec that would be difficult or impossible to ascertain or prove. Accordingly, each party agrees that any breach of this Section 8 shall obligate the Client to pay Vulsec on demand, as liquidated damages, an amount equal to Restricted Personnel’s annual salary or fees paid by Vulsec at termination of Restricted Personnel’s engagement with Vulsec. Each party agrees that this section does not provide for unreasonably large liquidated damages.
A. Amendment; No Waiver. Vulsec may amend the terms and conditions of this Agreement at any time, effective upon posting an updated version of this Agreement on the Vulsec website. The Client are responsible for regularly reviewing this Agreement and Vulsec encourage the Client to continually check the Vulsec website for any changes. The Client’s continued use of the Software after any such change shall constitute the Client’s consent to such change. Vulsec’s failure to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Vulsec in writing.
B. Governing Law. This Agreement shall be construed in accordance with, and governed by, the laws of the Commonwealth of Massachusetts, excluding its conflicts of law rules.
C. Relationship of Parties. No joint venture, partnership, employment or agency relationship exists between Vulsec and the Client as a result of this Agreement or the Client’s access and use of the Software.
D. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
E. Entire Agreement. This Agreement comprise the entire agreement between Vulsec and the Client and supersedes all other proposals and agreements, whether written or oral, between Vulsec and the Client regarding the subject matter contained herein.
F. Assignment. The Client shall not assign this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of the Client’s assets, change of control or operation of law, without our prior written consent, which shall not be unreasonably withheld. Vulsec may assign this Agreement to any affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.
G. Notice. Vulsec may give notice to the Client by general notice on the Vulsec website or electronic mail to the Client’s e-mail address on record. Such notice will be deemed to have been given upon the expiration of 12 hours after sending it by electronic mail. The Client may give notice to us (such notice deemed given when received by us) by electronic mail to [email protected]
Service Level and Recovery Point Objective Terms
Vulsec will use commercially reasonable efforts to have the content of the service available for IP access by the Client at all times; provided, however, nothing contained herein is a guarantee or shall give rise to a basis for termination of this Agreement. Vulsec will commercially reasonable efforts to keep regular backups of the Client’s environment; provided, however, nothing contained herein is a guarantee or shall give rise to a basis for termination of this Agreement. In the event of a system failure, Vulsec will target to provide the Client with two days recovery point objective.
Vulsec will use commercially reasonable efforts to monitor and test the Software for bugs, vulnerabilities, and malicious attacks and provide the Support Services (as defined below). In the event Vulsec determines that support services are needed to address bugs, vulnerabilities, and malicious attacks (“Support Services”), Vulsec will take the following actions as promptly as commercially practicable:
1. New ticket creation in the Vulsec’s system
2. Acknowledgement of receipt
3. Evaluation of the problem submitted
4. The Client may be consulted to gather further details about the issue by telephone or email.
5. Identification of issue criticality and remedial steps
6. Definition of the resolution schedule
7. Delivery of the bug fix to the platform
Support Services will apply to the Software itself and will not include security advice and/or support to the owner of an asset configured in the Software unless there is a separate Service Agreement.