Cavirin Master Subscription Agreement

This master subscription agreement (agreement) will govern your purchase and on-going use of the services detailed herein. This agreement will also govern your free subscription, trial or premium subscription services. This Agreement was last updated in December 2017. It is effective between you and us as of the date of you accepting this Agreement.

By accepting this agreement, either by clicking a box indicating your acceptance or by executing an order form that references this agreement, you agree to the terms of this agreement.  


1.  BACKGROUND

The Supplier (Cavirin Inc., referred to herein as 'we', 'us', 'our', “company”, “supplier” has set up IT Security and IT-GRC (Governance, Risk Management, and Compliance) related Services (branded under Cavirin, with different products which it makes available to subscribers via the internet on subscription basis for the purpose of assessing your security posture and / or complying with various IT regulatory and security standard compliance. This may also include certain customer premise software and equipment to be deployed in the client premises consisting of hardware and software towards IT Compliance, network monitoring and forensic analysis and for end-device security.
B. The Customer (referred to herein as 'you, 'your', “customer”) wishes to use the Supplier's service in its business operations or provide services using the supplier’s services.


2.  DEFINITIONS

"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

"Order Form" means the ordering documents for purchases hereunder, including addenda thereto, that are entered into between you and us from time to time. Order Forms shall be deemed incorporated herein by reference.

"Purchased Services" means Services that you or your Affiliates purchase under an Order Form, as distinguished from those provided pursuant to a limited-period free trial.

"Services" means the online, Web-based applications and platform provided by us via http://www.Cavirin.com, and/or other designated websites as described in the User Guide, that are ordered by you as part of a limited duration free trial or under an Order Form or Free subscription, including associated offline components but excluding Third Party Applications. This may also include certain customer premise software and equipment to be deployed in the client premises consisting of hardware and software towards IT Compliance, network monitoring and forensic analysis and for end-device security.

"Third-Party Applications" means online, Web-based applications and offline software products that are provided by third parties, that interoperate with the Services, and are identified as third-party applications, including but not limited to those listed on the Cavirin’s Services portal.

"User Guide" means the online user guide for the Services, accessible via http://www.Cavirin.com, as updated from time to time. You acknowledge that you have had the opportunity to review the User Guide during your initial review or under free subscription.

"Users" means individuals who are authorized by you to use the Services, or who are reselling the services to their end customers through an optional value addition for whom subscriptions to a Service have been purchased or on a free subscription and who have been supplied access credentials such user identifications and passwords by you (or by us at your request). Users may include but are not limited to your employees, consultants, contractors and agents; or third parties with which you transact business.

"We," "Us" or "Our" means the Cavirin Inc., Company described in Section 14 (Who you Are Contracting With, Notices, Governing Law and Jurisdiction).

"You" or "Your" means the company or other legal entity for which you are accepting this Agreement and Affiliates of that company or entity and includes channel partners, compliance partners, and end users. "Your Data" means all electronic data or information submitted by you to the Purchased/subscribed Services.


3.  PURCHASED SERVICES

3.1. Provision of Purchased Services.

We shall make the Purchased Services available to you pursuant to this Agreement and the relevant Order Forms during a subscription term. You agree that your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by us regarding future functionality or features.

4.  USE OF THE SERVICES

4.1. Our Responsibilities:

We shall: (i) provide to you basic support for the Purchased Services at no additional charge, and/or upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which we shall give at least 8 hours-notice via the Purchased Services and which We shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Pacific Time Friday to 6:00 a.m. Pacific Time Monday), or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), or Internet service provider failures, hosting service provider failure or delays, and (iii) provide the Purchased Services only in accordance with applicable laws and government regulations.

4.2. Your Responsibilities:

You shall (i) be responsible for Users' compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of Your Data and of the means by which you acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify us promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the User Guide and applicable laws and government regulations. You shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libellous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks.

You are entirely responsible for maintaining the confidentiality of your account information, including your password, and for any and all activity that occurs under your account. You agree to notify Cavirin immediately of any unauthorized use of your account or password, or any other breach of security.

License Restrictions:

Customer shall not (and shall not allow any third party to) (a) reproduce or modify the Software, (b) provide, rent, sell, lease, disclose, use for time sharing or service bureau purposes, or otherwise transfer or distribute the Software or any part thereof or use it for the benefit of a third party, (c) reverse assemble, disassemble, reverse compile or reverse engineer the Software, or otherwise attempt to discover any Software source code or underlying proprietary information of Cavirin (except to the limited extent that applicable law prohibits reverse engineering restrictions), (d) without the express prior written consent of Cavirin, disclose to any third party the results of any benchmarking or comparative study or analysis involving the Software, or (e) possess or use the Software, or allow the transfer, transmission, export, or re-export of the Software or a portion thereof in violation of any export control laws or regulations administered by the U.S. Commerce Department, U.S. Treasury Department's Office of Foreign Assets Control, or any other government agency. Notwithstanding the foregoing, Customer may make one (1) copy of the downloadable Software for backup purposes only. Customer shall maintain the copyright notice and any other notices that appear on the Software on any copies (including backup copies) and any media.

Customer acknowledges that the software may include features to prevent use after termination or expiry of the applicable license/subscription period.

Customer also acknowledges and agrees that any subsequent license periods following the initial license period shall be subject to the terms of this agreement

Automatic Updates:

Cavirin may communicate to you available updates for any downloadable programs, covering items such as bug fixes, patches, enhanced functions, missing plugins and new versions (collectively, "Updates"). You hereby agree to automatically request and receive Updates from Cavirin or its third party agent servers.


5.  CUSTOMER DATA

5.1. The Customer shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.

5.2. The Supplier shall follow its archiving procedures for Customer Data as set out in its Back-Up Policy, available on request, as such document may be amended by the Supplier in its sole discretion from time to time. In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy shall be for the Supplier to use reasonable commercial endeavor’s to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Supplier in accordance with the archiving procedure described in its Back-Up Policy. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by the Supplier to perform services related to Customer Data maintenance and back-up). The customer will be provided an option to periodically download its data and archive them on their local machines, for restoration if need be.

5.3. The Supplier shall, in providing the Services, comply with its Privacy and Security Policy relating to the privacy and security of the Customer Data available at www.Cavirin.com or such other website address as may be notified to the Customer from time to time, as such document may be amended from time to time by the Supplier in its sole discretion.

5.4. If the Supplier processes any personal data on the Customer's behalf when performing its obligations under this agreement, the parties record their intention that the Customer shall be the data controller and the Supplier shall be a data processor and in any such case:

(a) the Customer acknowledges and agrees that the personal data may be transferred or stored outside the country where the Customer and the Authorized Users are located in order to carry out the Services and the Supplier's other obligations under this agreement;

(b) the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to the Supplier so that the Supplier may lawfully use, process and transfer the personal data in accordance with this agreement on Customer's behalf;

(c) the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;

(d) the Supplier shall process the personal data only in accordance with the terms of this agreement and any lawful instructions reasonably given by the Customer from time to time; and

(e) each party shall take appropriate technical and organizational measures against unauthorized or unlawful processing of the personal data or its accidental loss, destruction or damage.

(f) You may not post or transmit any message which is libelous or defamatory, or which discloses private or personal matters concerning any person. You may not post or transmit any message, data, image or program that is indecent, obscene, pornographic, harassing, threatening, abusive, hateful, racially or ethnically offensive; that encourages conduct that would be considered a criminal offense, give rise to civil liability or violate any law; or that is otherwise inappropriate.

(g) You represent, warrant and agree that no materials of any kind submitted through your account or otherwise posted or shared by you through the Service will violate or infringe upon the rights of any third party, including copyright, trademark, privacy, publicity or other personal or proprietary rights; or contain libelous, defamatory or otherwise unlawful material.

(h) You may not copy or use personal identifying or business contact information about other users or Members without their permission. Unsolicited e-mails, mailings, telephone calls, or other communications to individuals or companies whose contact details you obtain through the Service are prohibited.


6.  THIRD-PARTY PROVIDERS

6.1. Acquisition of Third-Party Products and Services:

We may offer Third-Party Applications for sale under Order Forms. Any other acquisition by you of third-party products or services, including but not limited to Third-Party Applications and implementation, customization and other consulting services, and any exchange of data between you and any third-party provider, is solely between you and the applicable third-party provider. We do not warrant or support third-party products or services, whether or not they are designated by us as certified or otherwise, except as specified in an Order Form. No purchase of third-party products or services is required to use the Services.

6.2. Third-Party Applications and Your Data:

If you install or enable Third-Party Applications for use with Services, you acknowledge that we may allow providers of those Third-Party Applications to access Your Data as required for the interoperation of such Third-Party Applications with the Services. We shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by Third-Party Application providers. The Services shall allow you to restrict such access by restricting Users from installing or enabling such Third-Party Applications for use with the Services.

Service Contents:

Our Service contains content created by us, by third parties, and by our users and Members. This content includes, among other things, reports, comments, opinions from other IT professionals, scripts, plugins, widgets, how-to projects, product reviews, white papers, and software downloads. It also includes information about products and services offered by parties other than Cavirin, such as product descriptions, specifications, pricing, availability, and performance. We do not guarantee the accuracy, the integrity, or the quality of the content on our sites, and you may not rely on any of this content. Without limitation, we are not responsible for postings by users in the reports, scripts, plugins, widgets, product rating, product review, user opinion, message board, feedback or any other sections of our sites. You should not rely on such information in situations where its inaccuracy would cause you to suffer any loss (see Disclaimer of Warranties and Limitation of Liability sections below).


7.  FEES AND PAYMENT FOR PURCHASED SERVICES

7.1. User Fees:

You shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are quoted and payable in United States dollars, (ii) payment obligations are non-cancellable and fees paid are non-refundable, and (iii) the number of User subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form. User subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for User subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the subscription term.

7.2. Invoicing and Payment:

You will provide us with valid and updated credit card information or with a valid purchase order or alternative document reasonably acceptable to us. If you provide credit card information to us, you authorize us to charge such credit for all Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 13.2 (Term of Purchased User Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, we will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due next 30 days from the invoice date. You are responsible for maintaining complete and accurate billing and contact information in the Services.

7.3. Overdue Charges:

If any charges are not received from You by the due date, then at Our discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section

7.4. Suspension of Service and Acceleration:

If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full.

7.6. Taxes:

Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, " Taxes"). You are responsible for paying all Taxes associated with your purchases hereunder. If we have the legal obligation to pay or collect Taxes for which you are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by you, unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, we are solely responsible for taxes assessable against it based on our income, property and employees.

8.  PROPRIETARY RIGHTS

8.1. Reservation of Rights:

Subject to the limited rights expressly granted hereunder, we reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth herein. All right, title and interest in and to the SOFTWARE PRODUCT and any copies of the SOFTWARE PRODUCT made by you are exclusively owned by Cavirin Inc. The SOFTWARE PRODUCT is protected by copyright laws, other laws, and international treaty provisions. Therefore, you must treat and protect the SOFTWARE PRODUCT like any other protected material. You may not remove any copyright, trademark, proprietary rights, disclaimer or warning notice included on or embedded in any part of the SOFTWARE PRODUCT or any copy you make of the SOFTWARE PRODUCT.

You acknowledge that Cavirin (and its third party agents, where applicable) own all right, title and interest in and to the Service, portions thereof, or software or content provided through or in conjunction with the Service, including without limitation all Intellectual Property Rights in and to the Service and any suggestions, ideas, enhancements, requests, feedback and recommendations or other information provided by you or any other party relating to the Service. "Intellectual Property Rights" means any and all rights existing from time to time under patent law, copyright law, trade secret law, trademark law, unfair competition law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide. You agree not to (and agree not to allow third parties to) modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Service, or to extract significant portions of Service's files for use in other applications. You also agree to (and will require third parties to) not remove, obscure, or alter Cavirin or any third party's copyright notice, trademarks, or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the Service.

8.2. Restrictions:

You shall not (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivate works based on the Services, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.

You agree that you will not use, license, transfer or otherwise dispose of the SOFTWARE PRODUCT or documentation in violation of U.S. and/or foreign or local copyright laws. You undertake also:

  1. a) Not to disclose, publish, or disseminate any information regarding the software to anyone. In particular not to disclose information about any new software features or software faults to any Internet forums, without prior permission from Cavirin Inc.
  2. b) To send fault reports and any questions or suggestions for improvement relating to the software by e-mail only to the e-mail address: support@Cavirin.com
  3. c) Not to disclose the confidential access details to anyone. Nothing herein contained shall be construed to imply the grant of any license to you of any nature kind or description. All confidential information, and any derivatives thereof created by Cavirin, Inc. remains the property of Cavirin Inc. and no license of other rights to confidential Information is granted or implied hereby.

Customer's use of the Purchased Services is subject to the following additional restrictions, and Customer hereby agrees and accepts as follows:

  1. a) Customer may use the Purchased Services only to scan IP addresses owned by and registered to Customer ("IP Addresses")

Customer represents and warrants that Customer has full right, power and authority to use the Purchased Services on the IP Addresses. Without limiting any other remedy that the Company may have, Customer shall indemnify and hold the Company harmless from and against all liabilities, losses, damages, costs and expenses, including without limitation reasonable attorneys' fees and costs, incurred by the Company resulting from Customer's breach of this Section.

8.3. Ownership of Your Data:

As between us and You, You exclusively own all rights, title and interest in and to all of Your Data.

You are solely responsible for the user profiles, messages, notes, text, information, and other content that you upload, publish, submit, share or display (hereinafter, "post") on or through the Service or the Site, or transmit to or share with other Members (collectively the "User Content"). You understand and agree that Cavirin may, but is not obligated to, review and delete or remove (without notice) any User Content in its sole discretion, including without limitation User Content that in Cavirin’s sole judgment violates this Agreement or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of Members, users or others.

By posting User Content to any part of the Service or the Site, you automatically grant to Cavirin the right to use the data for any analytical or derivative purposes, and publish such data and perform such content as permitted through the functionality of the Service and the Site and under this Agreement without disclosing your organization details.

You may remove your User Content from the Site at any time. You acknowledge that this User Content may persist in backup copies, derivative works or aggregate form for a period of time.

8.4. Suggestions:

We shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by you, including Users, relating to the operation of the Services.

8.5. Federal Government End Use Provisions:

We provide the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with us to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement;


9.  CONFIDENTIALITY

9.1. Definition of Confidential Information:

As used herein, "Confidential Information" means all confidential information disclosed by a party (" Disclosing Party") to the other party (" Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

9.2. Protection of Confidential Information:

Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.

9.3. Protection of Your Data:

Without limiting the above, we shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. We shall not (a) modify Your Data, (b) disclose Your Data except as compelled by law in accordance with Section 9.4 (Compelled Disclosure) or as expressly permitted in writing by You, or (c) access Your Data except to provide the Services or prevent or address service or technical problems, or at your request in connection with customer support matters.

9.4. Compelled Disclosure:

The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.


10.  WARRANTIES AND DISCLAIMERS

10.1. Our Warranties:

We warrant that (i) the Services shall perform materially in accordance with the User Guide, the functionality of the Services will not be materially decreased during a subscription term. For any breach of either such warranty, your exclusive remedy shall be as provided in Section 13.3 (Termination for Cause) and Section 13.4 (Refund or Payment upon Termination) below.

10.2. Mutual Warranties:

Each party represents and warrants that (i) it has the legal power to enter into this Agreement, and (ii) it will not transmit to the other party any Malicious Code (except for Malicious Code previously transmitted to the warranting party by the other party).

10.3. Disclaimer:

Except as expressly provided herein, neither party makes any warranties of any kind, whether express, implied, statutory or otherwise, and each party specifically disclaims all implied warranties, including any warranties of merchantability or fitness for a particular purpose, to the maximum extent permitted by applicable law.


11.  INDEMNIFICATION

You will defend, indemnify, and hold harmless us, our affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim concerning: (a) your or any End Users’ use of the Service Offerings (including any activities under your Cavirin Services account and use by your employees and personnel); (b) breach of this Agreement or violation of applicable law by you or any End User; (c) Your Content or the combination of Your Content with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third-party rights by Your Content or by the use, development, design, production, advertising or marketing of Your Content; or (d) a dispute between you and any End User. If we or our affiliates are obligated to respond to a third party subpoena or other compulsory legal order or process described above, you will also reimburse us for reasonable attorneys’ fees, as well as our employees’ and contractors’ time and materials spent responding to the third party subpoena or other compulsory legal order or process at our then-current hourly rates.

Process: We will promptly notify you of any claim subject to Section 11, but our failure to promptly notify you will only affect your obligations under Section 11 to the extent that our failure prejudices your ability to defend the claim. You may: (a) use counsel of your own choosing (subject to our written consent) to defend against any claim; and (b) settle the claim as you deem appropriate, provided that you obtain our prior written consent before entering into any settlement. We may also assume control of the defense and settlement of the claim at any time.

11.2. Indemnification by you:

You shall defend Us against any Claim made or brought against Us by a third party alleging that Your Data, or Your use of the Services in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify us for any damages finally awarded against, and for reasonable attorney's fees incurred by, us in connection with any such Claim; provided, that We (a) promptly give You written notice of the Claim; (b) give You sole control of the defense and settlement of the Claim (provided that You may not settle any Claim unless the settlement unconditionally release us of all liability); and (c) provide to you all reasonable assistance, at our expense.

11.3. Exclusive Remedy:

This Section 11 (Indemnification) states the indemnifying party's sole liability to, and the indemnified party's exclusive remedy against, the other party for any type of Claim described in this Section.


12.  LIMITATION OF LIABILITY

12.1. LIMITATION OF LIABILITY:

In no event shall either party's aggregate liability arising out of or related to this agreement, whether in contract, tort or under any other theory of liability, exceed the total amount paid by you hereunder or, with respect to any single incident, will be limited by the amount paid by you hereunder in the 12 months preceding the incident. The foregoing shall not limit your payment obligations under section 7 (fees and payment for purchased services).

While we try to prohibit illegal, inappropriate or unauthorized conduct and content on the service, you understand and agree that we are not responsible for the data uploaded to, and accessed by, the service, and it is possible that you may be exposed to such materials. You agree to use the service at your own risk.

We and our affiliates or licensors will not be liable to you for any direct, indirect, incidental, special, consequential or exemplary damages (including damages for loss of profits, goodwill, use, or data), even if a party has been advised of the possibility of such damages. Further, neither we nor any of our affiliates or licensors will be responsible for any compensation, reimbursement, or damages arising in connection with: (a) your inability to use the services, including as a result of any (i) termination or suspension of this agreement or your use of or access to the service offerings, (ii) our discontinuation of any or all of the service offerings, or, (iii) without limiting any obligations under the SLAs, any unanticipated or unscheduled downtime of all or a portion of the services for any reason, including as a result of power outages, system failures or other interruptions; (b) the cost of procurement of substitute goods or services; (c) any investments, expenditures, or commitments by you in connection with this agreement or your use of or access to the service offerings; or (d) any unauthorized access to, alteration of, or the deletion, destruction, damage, loss or failure to store any of your content or other data. In any case, our and our affiliates’ and licensors’ aggregate liability under this agreement will be limited to the amount you actually pay us under this agreement for the service that gave rise to the claim during the 12 months preceding the claim.

12.2. EXCLUSION OF CONSEQUENTIAL AND RELATED DAMAGES:

In no event shall either party have any liability to the other party for any lost profits or revenues or for any indirect, special, incidental, consequential, cover or punitive damages however caused, whether in contract, tort or under any other theory of liability, and whether or not the party has been advised of the possibility of such damages. The foregoing disclaimer shall not apply to the extent prohibited by applicable law.


13.  TERM AND TERMINATION

13.1. Term of Agreement:

This Agreement commences on the date You accept it and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated. If You elect to use the Services for a free trial period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of the free trial period.

13.2. Term of Purchased User Subscriptions:

User subscriptions purchased by you commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all User subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless we have given you written notice of a pricing increase at least 30 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter. Any such pricing increase shall not exceed 20% over the pricing for the relevant Services in the immediately prior subscription term, unless the pricing in such prior term was designated in the relevant Order Form as promotional or one-time.

13.3. Termination for Cause:

A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

13.5. Return of Your Data:

Upon request by you made within 30 days after the effective date of termination of a Purchased Services subscription, We will make available to you for download a file of Your Data. After such 30-day period, we shall have no obligation to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control.

13.6. Surviving Provisions:

Section 7 (Fees and Payment for Purchased Services), 8 (Proprietary Rights), 9 (Confidentiality), 10.3 (Disclaimer), 11 (Indemnification), 12 (Limitation of Liability), 13.4 (Refund or Payment upon Termination), 13.5 (Return of Your Data), 14 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction) and 15 (General Provisions) shall survive any termination or expiration of this Agreement.


14.  GOVERNING LAW AND JURISDICTION

14.1. Notice:

Any notice required to be given under this agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this agreement, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party's fax number as set out in this agreement.

14.2. Notice Delivery:

A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).

14.3. Address:

You are contracting with:

Cavirin Inc

5201 Great America Pkwy #419, Santa Clara, CA 95054

Notices should be addressed to: VP, Worldwide Sales

14.4. Manner of Giving Notice:

Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Notices to You shall be addressed to the system administrator designated by You for Your relevant Services account, and in the case of billing-related notices, to the relevant billing contact designated by you.

14.5. Agreement to Governing Law and Jurisdiction:

Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.

14.6. Waiver of Jury Trial:

Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.

15.  GENERAL PROVISIONS

15.1. Export Compliance:

Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (i) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) You shall not permit Users to access or use Services in violation of any U.S. export embargo, prohibition or restriction.

15.2. Relationship of the Parties:

The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, and fiduciary or employment relationship between the parties.

15.3. No Third-Party Beneficiaries:

There are no third-party beneficiaries to this Agreement.

15.4. Waiver and Cumulative Remedies:

No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

15.5. Severability:

If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

15.6. Attorney Fees:

You shall pay on demand all of our reasonable attorney fees and other costs incurred by us to collect any fees or charges due us under this Agreement following your breach of Section 7.2 (Invoicing and Payment)

15.7. Assignment:

Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party's sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party's election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, we shall refund to you any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

15.8. Entire Agreement:

This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.

Feedback: Licensee may, at its discretion, provide feedback to Cavirin with respect to the Software (“Feedback”). Feedback may include, without limitation, errors or difficulties discovered in the Software and the characteristic conditions and symptoms of the errors and difficulties. Unless specifically agreed in writing, Feedback provided by the Licensee shall not create any confidentiality obligation for Cavirin, and Cavirin shall be free to use, disclose, reproduce, license or otherwise distribute, and exploit such Feedback as it sees fit.

If you have any questions about this Agreement, or if you want to contact Cavirin for any reason, please direct all correspondence to: Cavirin Inc., 5201 Great America Parkway, Suite 419
Santa Clara, CA 95054, United States of America or by email to info@cavirin.com.

 

Cavirin provides security management across physical, public, and hybrid clouds, supporting AWS, Microsoft Azure, Google Cloud Platform, VMware, KVM, and Docker.