PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE CLOUDKNOX PRODUCTS (DEFINED BELOW). BY DOWNLOADING, INSTALLING OR USING THE CLOUDKNOX PRODUCTS, YOU ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT DOWNLOAD, INSTALL OR USE THE CLOUDKNOX PRODUCTS.
This CloudKnox Platform Services Agreement (“Agreement”) is made and entered into as of date of the last signature below (“Effective Date”), by and between CloudKnox Security, Inc., a Delaware corporation (“CloudKnox”), and ______, the customer (“Customer”).
CloudKnox has developed and hosts the Subscription Services (as defined below), which are accessed and used by CloudKnox’s customers.
Customer desires to access and use the Subscription Services, and CloudKnox is willing to permit Customer to access and use the Subscription Services, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, the parties hereby agree as follows:
1.1 “Affiliate” means any person or entity which directly or indirectly controls, or is controlled by, or is under common control with such entity. As used herein, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person or entity, whether through the ownership of more than fifty percent (50%) of voting securities, by contract or otherwise. A person or entity shall only be considered an Affiliate under this Agreement, so long as such “control” exists.
1.2 “Authorized User” means an employee or contractor of Customer or its Affiliates that has (i) been assigned a unique username-password combination to access and use the Subscription Services, and (ii) registered online to access and use the Subscription Services.
1.3 “Customer Data” means Customer’s proprietary data and information input into, accessed and/or stored by the Subscription Services.
1.4 “Fees” means the fees described in Section 5 of this Agreement.
1.5 “Implementation Services” means the implementation services to be performed by CloudKnox as set forth on a statement of work between the parties.
1.6 “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights, know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world.
1.8 “Software” means any CloudKnox owned or third-party licensed software used by CloudKnox to provide the Subscription Services.
1.9 “Subscription Services” means the information security monitoring services provided by CloudKnox.
1.10 “Term” means the term of this Agreement as defined in Section 9.1.
2. SUBSCRIPTION SERVICE
2.1 Subscription Services. Subject to Customer’s compliance with the terms and conditions of this Agreement, commencing on the launch date set forth in the Project Plan and continuing throughout the remainder of the Term, CloudKnox grants to Customer a non-exclusive, non-transferable right to access and use the Subscription Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Customer and the Authorized Users may access and use the Subscription Services solely for its internal business purposes and, if applicable, such access and use is expressly limited to the number of Authorized Users for which Customer has paid Fees in accordance with the Customer’s quote and/or order (the “Quote”, hereby incorporated into this Agreement by reference.)
2.2 Service Levels. CloudKnox will provide the Subscription Services in accordance with and subject to the service level agreement set forth in Exhibit A (the “Service Level Agreement”).
2.3 Restrictions. Customer shall not attempt to interfere with or disrupt the Subscription Services or the Software or attempt to gain access to any systems or networks that connect thereto (except as required to access and use the Subscription Services). Customer shall not allow access to or use of the Subscription Services by anyone other than Authorized Users. Customer and the Authorized Users shall not: (a) copy, reverse engineer, modify, disassemble, decode, adapt, or otherwise attempt to gain access to the source code of the Subscription Services or Software, or distribute any portion of the Subscription Services or Software; (b) rent, lease, sublicense, assign, distribute, publish, transfer or provide access to the Subscription Services on a time-share or service bureau basis; (c) access or use the Subscription Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party or that violates any applicable law; or (d) transfer any of its rights hereunder (except as specified in 13.10).
2.4 Acceptable Use Policies and Exclusivity. Customer acknowledges and agrees that CloudKnox does not monitor or police communications or data transmitted through the Subscription Services and that CloudKnox is not responsible for the content of any such communications or transmissions. Customer shall use the Subscription Services exclusively for authorized and legal purposes, consistent with all applicable laws, regulations and the rights of others.
3. NEW SERVICES
If Customer requests CloudKnox to perform any services that are different from or in addition to the Implementation Services and Subscription Services set forth herein (“New Services”), and CloudKnox is willing to provide such New Services, then CloudKnox shall provide a written quote to Customer listing the Fees for such requested New Services (“New Service Fees”). Upon Customer’s acceptance of the New Services and New Service Fees, (a) CloudKnox shall perform the New Services in accordance with the terms of the mutually agreed statement of work; (b) the Fees shall be adjusted to reflect the New Service Fees; and (c) such New Services shall be deemed Implementation Services and/or Subscription Services under this Agreement, as appropriate.
4. CUSTOMER OBLIGATIONS
4.1 Cooperation and Assistance. As a condition to CloudKnox’s obligations hereunder, Customer shall: (a) provide CloudKnox with good faith cooperation and access to such information, facilities, and equipment as may be reasonably required by CloudKnox in order to provide the Implementation Services and Subscription Services; (b) provide such personnel assistance as may be reasonably requested by CloudKnox from time to time; and (c) carry out in a timely manner all other Customer responsibilities set forth in this Agreement. In the event of any delay in Customer’s performance of any of the obligations set forth in (a), (b) or (c), or any other delays caused by Customer or any third party acting on Customer’s behalf, CloudKnox is not liable for any damages or other liabilities in connection with such delays and may adjust the milestones and launch date set forth in the Project Plan as reasonably necessary to account for such delays.
4.2 Marketing Support. The parties may mutually agree to support public relations efforts pertaining to the Subscription Services, which efforts may include a press release highlighting Customer’s purchase or use of the Subscription Services. Customer hereby grants to CloudKnox a non-exclusive, non-transferable (except as permitted under 13.8), limited right to use the Customer name, trademarks, and logos during the Term (collectively, the “Customer Marks”) in the production of marketing materials, provided that such use is in accordance with Customer’s trademark and logo use guidelines that Customer provides to CloudKnox in writing. All goodwill developed from such use shall be solely for the benefit of Customer.
4.3. Enforcement. Customer shall ensure that all Authorized Users comply with the terms and conditions of this Agreement, including, without limitation, with Customer’s obligations set forth in Sections 2.3 and 2.4. Customer shall promptly notify CloudKnox of any suspected or alleged violation of the terms and conditions of this Agreement and shall cooperate with CloudKnox with respect to: (a) investigation by CloudKnox of any suspected or alleged violation of this Agreement and (b) any action by CloudKnox to enforce the terms and conditions of this Agreement. CloudKnox may suspend or terminate Customer’s or any Authorized User’s access to the Subscription Services upon notice to Customer in the event that CloudKnox reasonably determines that such Authorized User has violated the terms and conditions of this Agreement. Customer shall be liable for violation of the terms and conditions of this Agreement by any Authorized User.
4.4 Telecommunications and Internet Services. Customer acknowledges and agrees that Customer’s and its Authorized Users’ use of the Subscription Services is dependent upon access to telecommunications and Internet services. Customer shall be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Subscription Services, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing. CloudKnox shall not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications and Internet services.
5. FEES; EXPENSES; TAXES
5.1 Fees. In consideration for CloudKnox providing the Subscription Services and Implementation Services (if applicable), Customer shall pay to CloudKnox the Fees, in accordance with the terms set forth in the Customer’s applicable Quote.
5.2 Invoices; Payment; Late Payment. Each invoice is due and payable thirty (30) days after Customer’s receipt of the invoice. If CloudKnox has not received payment within five (5) days after the due date, interest shall accrue on past due amounts at the rate of one percent (1%) per month, but in no event greater than the highest rate of interest allowed by law, calculated from the date such amount was due until the date that payment is received by CloudKnox. Customer shall reimburse CloudKnox for the reasonable costs of collection, including collection fees and expenses of attorneys.
5.3 Taxes. All amounts and fees stated or referred to in this Agreement are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT) (collectively, “Taxes”). Customer shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than any taxes based on CloudKnox’s net income.
6.1 Intellectual Property. As between CloudKnox and Customer, the Subscription Services and Software (and all copies of the Software), and all Intellectual Property Rights therein or relating thereto, including any derivatives thereof, are and shall remain the exclusive property of CloudKnox or its licensors. As between CloudKnox and Customer, the Customer Data, and all Intellectual Property Rights therein, are and shall remain the exclusive property of Customer. Notwithstanding anything to the herein to the contrary, the parties acknowledge and agree that CloudKnox may monitor, collect, use and store data regarding Customer’s use of the Subscription Services or components thereof, including Customer Data (collectively, the “Usage Data”) Customer hereby grants to CloudKnox and its Affiliates an irrevocable, non-exclusive, royalty-free, worldwide, perpetual license to the Usage Data (and any derivates) for any legal business purpose, including, but not limited to, enhancing the Subscription Services and their respective components and creating new features thereof; however, any such Usage Data may only be shared with third parties in anonymous and aggregate form that cannot identify Customer.
6.2 Feedback. To the extent Customer provides any suggestions, recommendation or other feedback to CloudKnox with respect to the Subscription Services, Customer hereby grants to CloudKnox a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub-licensable, transferable license to use, copy, modify, create derivative works based upon and otherwise exploit any such feedback and the Intellectual Property Rights therein.
7.1 Definition. By virtue of this Agreement, the parties may have access to each other’s Confidential Information. “Confidential Information” means non-public information that is designated “confidential” or “proprietary” or that a reasonable person should understand is confidential given its content or the circumstances surrounding its disclosure, including the terms of this Agreement.
7.2 Confidential Information. CloudKnox’s Confidential Information includes, without limitation, the Subscription Services and any Software whether in source or executable code, product related documentation, nonpublic financial information, pricing, business plans, techniques, methods, processes, and the results of any performance tests of the Subscription Services or the Software. Customer Data is the Confidential Information of Customer. The terms and conditions of this Agreement shall be deemed the Confidential Information of both parties, and neither party shall disclose such information except to such party’s advisors, accountants, attorneys, investors (and prospective investors), and prospective acquirers as have a reasonable need to know such information, provided that any such third parties shall, before they may access such information, either (a) execute a binding agreement to keep such information confidential or (b) be subject to a professional obligation to maintain the confidentiality of such information.
7.3 Notification. The receiving party of the Confidential Information shall notify the disclosing party of the Confidential Information in writing immediately upon becoming aware of any unauthorized disclosure or use of the disclosing party’s Confidential Information. The receiving party shall promptly return or destroy the disclosing party’s Confidential Information upon receiving written request from the disclosing party, provided that such return or destruction does not interfere with the receiving party’s rights and obligations under this Agreement.
7.4 Exclusions. Notwithstanding the foregoing, Confidential Information shall not include information that: (a) is or becomes publicly known through no act or omission of the receiving party; (b) was in the receiving party’s lawful possession prior to the disclosure; (c) is rightfully disclosed to the receiving party by a third party without restriction on disclosure; or (d) is independently developed by the receiving party, which independent development can be shown by written evidence.
7.5 Use and Nondisclosure. During the Term and for a period of five (5) years after expiration or termination of this Agreement, neither party shall make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purposes other than exercising its rights and performing its obligations under this Agreement. Each party shall take all reasonable steps to ensure that the other’s Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement, but in no event will either party use less effort to protect the Confidential Information of the other party than it uses to protect its own Confidential Information of like importance. Each party will ensure that any agents or subcontractors that are permitted to access any of the other’s Confidential Information are legally bound to comply with the obligations set forth herein. Notwithstanding the foregoing, Confidential Information may be disclosed as required by law, provided that before disclosing such information the disclosing party must provide the non-disclosing party with sufficient advance written notice of the request for the information to enable the non-disclosing party (at its expense) to exercise any rights it may have to challenge or limit the request to disclose such Confidential Information.
8.1 Warranty for Subscription Services. CloudKnox warrants that (i) the Subscription Services will comply with the material functionality described in the product documentation; and (ii) the Subscription Services will meet the requirements set forth in the Service Level Agreement (subject to the limitation on remedies therein).
8.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8.1, CLOUDKNOX MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT, THE IMPLEMENTATION SERVICES OR THE SUBSCRIPTION SERVICES. WITHOUT LIMITING THE FOREGOING, EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8.1, CLOUDKNOX DISCLAIMS ANY WARRANTY THAT THE SUBSCRIPTION SERVICES WILL BE SECURE, ERROR FREE, OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED. CLOUDKNOX FURTHER DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE SUBSCRIPTION SERVICES AS TO MERCHANTABILITY, ACCURACY OF ANY INFORMATION PROVIDED, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. CLOUDKNOX FURTHER DISCLAIMS ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM CLOUDKNOX OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, IN SUCH JURISDICTIONS, SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY.
9. TERM, SUSPENSION, AND TERMINATION
9.1 Term. This Agreement shall commence on the Effective Date and shall continue for the period of one (1) year thereafter (the “Initial Term”), unless terminated earlier as provided in this Agreement. This Agreement shall automatically renew for subsequent one-year periods, unless either party notifies the other in writing of its intent not to renew at least ninety (90) days prior to the end of the then-current term. The Initial Term and renewal periods are collectively, the “Term”.
9.2 Suspension. Customer agrees that CloudKnox may suspend Customer’s or any Authorized User’s access to the Subscription Service if CloudKnox reasonably concludes that Customer’s or any Authorized User’s use of the Subscription Service may cause or is causing immediate and ongoing harm to CloudKnox or others. CloudKnox will use commercially reasonable efforts to resolve the issues causing the suspension of the Subscription Service. Customer agrees that CloudKnox will not be liable to Customer or to any third party for any suspension of the Subscription Service under such circumstances as described in this Section.
9.3 Termination for Cause. Either party may terminate this Agreement upon written notice if the other party breaches any material term of this Agreement and fails to correct the breach within thirty (30) days following receipt of written notice specifying the breach; provided that the cure period for any default with respect to payment shall be five (5) business days.
9.4 Termination for Insolvency. Subject to Title 11 of the United States Code, if Customer becomes or is declared insolvent or bankrupt, is the subject of any proceedings relating to its liquidation, insolvency, or for the appointment of a receiver or similar officer for it, or makes an assignment for the benefit of any creditor, then CloudKnox may terminate this Agreement upon thirty (30) days’ written notice.
9.5 Rights and Obligations Upon Expiration or Termination. Upon expiration or termination of this Agreement, Customer’s and the Authorized Users’ right to access and use the Subscription Services shall immediately terminate, Customer and its Authorized Users shall immediately cease all use of the Subscription Services, and each party shall return or destroy and make no further use of the other party’s Confidential Information, materials, or other items (and all copies thereof). CloudKnox may destroy or otherwise dispose of any Customer Data in its possession unless CloudKnox receives, no later than ten (10) days after the effective date of the expiration or termination of this Agreement, a written request for the delivery to Customer of the then-most recent back-up of the Customer Data. CloudKnox will use commercially reasonable efforts to deliver the back-up to Customer within thirty (30) days of its receipt of such a written request. Customer shall pay all reasonable expenses incurred by CloudKnox in returning Customer Data to Customer. Upon expiration or termination of this Agreement, CloudKnox shall cease use of the Customer Marks; provided, however, that (a) CloudKnox shall have a reasonable time to remove the Customer Marks from promotional materials, (b) CloudKnox shall be entitled to exhaust materials printed during the Term that include the Customer Marks, and (c) CloudKnox shall not be required to remove any such printed materials from circulation.
9.6 Survival. The rights and obligations of CloudKnox and Customer contained in Sections 5 (Fees, Expenses and Taxes), 6 (Ownership), 7 (Confidentiality), 9.5 (Rights and Obligations Upon Expiration or Termination), 9.6 (Survival), 10 (Indemnification), 11 (Limitation of Liability), 12 (Acknowledgement), and 13 (General) shall survive any expiration or termination of this Agreement.
10.1 Indemnification by Customer. Customer shall indemnify, defend, and hold harmless CloudKnox, its Affiliates, officers, directors and employees, from and against any and all liabilities, losses, damages and expenses, including court costs and reasonable attorneys’ fees (collectively, “Losses”), arising out of or in connection with any third-party claim that: (i) a third party has suffered injury, damage or loss resulting from Customer’s or an Authorized User’s use of the Subscription Services (other than any claim for which CloudKnox is responsible under Section 10.2); or (ii) Customer or any Authorized User has used the Subscription Services in a manner that violates Sections 2.3 or 2.4 of this Agreement.
10.2 Indemnification by CloudKnox. CloudKnox shall indemnify, defend, and hold harmless Customer from any Losses, arising out of or in connection with any third party claim that the Subscription Services infringe or misappropriate the Intellectual Property Rights of any third party, except to the extent any such claims and related Losses result from (i) Customer’s or any Authorized User’s modification of the Subscription Service or combination of the Subscription Services with other products or services if the Subscription Service would not have been infringing but for such combination or modification, (ii) Customer’s or any Authorized User’s use of the Subscription Service in a manner not authorized herein or for which it was not designed, (iii) Customer’s or any Authorized User’s failure to use an updated non-infringing version of the applicable intellectual property to the extent Customer or the Authorized User was notified that the update cured an infringement, (iv) changes to the Subscription Service made by CloudKnox at the direction of the Customer or any Authorized User, or (v) Customer Data. In the event that CloudKnox’s right to provide the Subscription Services is enjoined or in CloudKnox’s reasonable opinion is likely to be enjoined, CloudKnox may obtain the right to continue providing the Subscription Services, replace or modify the Subscription Services so that they become non-infringing, or, if such remedies are not reasonably available, terminate this Agreement without liability to Customer. THE FOREGOING STATES CUSTOMER’S, ITS LICENSORS’, AND EACH AUTHORIZED USER’S SOLE AND EXCLUSIVE REMEDY FOR ANY SUCH CLAIMS BY A THIRD PARTY. CloudKnox shall have no liability under this Section 10.2 to the extent that any third-party claims described herein are based on use of the Subscription Services in a manner that violates this Agreement or the instructions given to Customer by CloudKnox.
10.3 Indemnification Procedures. The party seeking indemnification shall give prompt written notice of the claim to the indemnifying party and will tender the defense; provided, however, that such party’s failure to provide notification shall not affect the indemnifying party’s indemnification obligations except to the extent that the failure to notify delays or prejudices the indemnifying party’s ability to defend the applicable claim. The indemnifying party shall conduct the defense and shall have control of the litigation, and the indemnified party shall reasonably cooperate in defending against the claim. The indemnified party shall have the right, at any time and at its own expense, to participate in the defense of the claim with counsel of its own choosing. The indemnifying party shall not make any settlement of the claim that results in any liability or imposes any obligation on the indemnified party without the prior written consent of the indemnified party.
11. LIMITATION OF LIABILITY
EXCEPT FOR LIABILITY ARISING FROM A BREACH OF SECTIONS 2.3 OR 2.4 OR SECTION 7, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE.
NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, EXCEPT FOR LIABILITY ARISING FROM A BREACH OF SECTION 7, IN NO EVENT SHALL CLOUDKNOX’S AGGREGATE LIABILITY TO CUSTOMER AND ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT OR CUSTOMER’S ACCESS TO AND USE OF THE SUBSCRIPTION SERVICES EXCEED THE TOTAL MONTHLY SUBSCRIPTION FEES PAID BY CUSTOMER IN THE TWELVE MONTH PERIOD PRECEDING THE CLAIM OR ACTION, REGARDLESS OF THE FORM OR THEORY OF THE CLAIM OR ACTION.
The parties acknowledge that the limitations and exclusions contained in Section 11 and elsewhere in this Agreement have been the subject of negotiation between the parties and represent the parties’ agreement based upon the perceived level of risk associated with their respective obligations under this Agreement, and the payments made hereunder. Without limiting the generality of the foregoing, the parties acknowledge and agree that (a) the provisions hereof that limit liability, disclaim warranties or exclude consequential damages or other damages or remedies shall be severable and independent of any other provisions and shall be enforced as such, regardless of any breach hereunder, and (b) all limitations of liability, disclaimers of warranties, and exclusions of consequential damages or other damages or remedies shall remain fully valid, effective and enforceable in accordance with their respective terms, even under circumstances that cause an exclusive remedy to fail of its essential purpose.
13.1 Changes. CloudKnox reserves the right, in its sole discretion, to make any changes to the features and functionalities of the Subscription Services that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of CloudKnox’s services to its customers; (ii) the competitive strength of or market for CloudKnox’s services; or (iii) the Subscription Services’ cost efficiency or performance; or (b) to comply with applicable laws.
13.2 Reservation of Rights. Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Subscription Services whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Subscription Services are and will remain with CloudKnox.
13.3 Governing Law. This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of the State of Washington, without regard to its conflict of law provisions. Any legal action or proceeding relating to this Agreement shall be brought exclusively in an appropriate state or federal courts located in Washington. CloudKnox and Customer hereby agree to submit to the jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding.
13.4 Waiver. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.
13.5 Notices. All notices, including notices of address change, required to be sent hereunder shall be in writing and shall be sent to the addresses set forth in the signature line of this Agreement or delivered in person. The notices shall be deemed to have been given upon: (a) the date actually delivered in person; (b) the day after the date sent by overnight courier; or (c) three (3) days following the date such notice was mailed by first class mail. Notices may be confirmed by email.
13.6 Severability. In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect.
13.7 Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each, a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.
13.8 Compliance with Laws. Each party agrees to comply with all applicable laws and regulations with respect to its activities hereunder, including, but not limited to, any export laws and regulations of the United States.
13.9 Relationship Between the Parties. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.
13.10 Assignment/Successors. Neither party may assign or transfer this Agreement, in whole or in part, without the other party’s written consent except in the event of a Change of Control (as defined below); provided, however, CloudKnox may assign this Agreement to an Affiliate without consent. Any attempted assignment or transfer in violation of this Section will be null and void. “Change of Control” means, with respect to a party: (a) the direct or indirect acquisition of either (i) the majority of voting stock of such party or (ii) all or substantially all of the assets of such party, by another entity in a single transaction or a series of transactions; or (b) the merger of such party with another entity. Subject to the foregoing restrictions, this Agreement shall inure to the benefit of the successors and permitted assigns of the parties.
13.11 Entire Agreement. This Agreement, together with the exhibits hereto, constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party.
13.12 Non-Exclusive Remedies. Except as set forth in Sections 2.5 and 10.1 and in the Service Level Agreement, the exercise by either party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
13.13 Equitable Relief. Each party acknowledges that a breach by the other party of any confidentiality or proprietary rights provision of this Agreement may cause the non-breaching party irreparable damage, for which the award of damages would not be adequate compensation. Consequently, the non-breaching party may institute an action to enjoin the breaching party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and a party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching party may be entitled at law or in equity.
13.14 No Third-Party Beneficiaries. This Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party. Only the parties to this Agreement may enforce it.
13.15 Counterparts. This Agreement may be executed in counterparts, each of shall constitute an original, and all of which shall constitute one and the same instrument.
13.16 Headings. The headings in this Agreement are for the convenience of reference only and have no legal effect.
The parties have caused this Agreement to be signed as of the Effective Date by their duly authorized representatives.
Customer CloudKnox Security, Inc.
Address for Notices: Address for Notices:
[Note to Customer: please include.] 150 Mathilda Place Suite #650; Sunnyvale, CA 94086
SERVICE LEVEL AGREEMENT
CloudKnox will use commercially reasonable efforts to make the Subscription Services available with a Monthly Uptime Percentage (defined below) of at least 99%, in each case during any monthly billing cycle (the “Service Commitment”). In the event any of the Subscription Services do not meet the Service Commitment, Customer will be eligible to receive a Service Credit as described below.
- “Monthly Uptime Percentage” is calculated by subtracting from 100% the percentage of minutes during the month in which any of the Subscription Services, as applicable, was unavailable. Monthly Uptime Percentage measurements exclude downtime resulting directly or indirectly from: (A) Customer’s, any Authorized Users’, or any third party acting on their behalf’s acts or omissions, (B) Customer’s internet connectivity, (C) a Force Majeure Event or (D) regularly-scheduled downtime.
- A “Service Credit” is a dollar credit, calculated as set forth below, that CloudKnox may credit.
- Service Credits are calculated as a percentage of the total charges paid by Customer in accordance with the schedule below.
|Monthly Uptime Percentage||Service Credit Percentage|
|Less than 99% but equal to or greater than 98.0%||1%|
|Less than 98% but equal to or greater than 95.0%||3%|
|Less than 95%||5%|
- CloudKnox will apply any Service Credits only against payments otherwise due from Customer. Service Credits will not entitle Customer to any refund or other payment from CloudKnox. Unless otherwise provided in the Agreement, Customer’s sole and exclusive remedy for any unavailability, non-performance, or other failure by CloudKnox with regards to the Subscription Services is the receipt of a Service Credit (if eligible) in accordance with the terms of this Service Level Agreement.
- To receive a Service Credit, Customer must submit a claim within thirty (30) days of the applicable month. If the Monthly Uptime Percentage of such request is confirmed by CloudKnox and is less than the Service Commitment, then CloudKnox will issue the Service Credit to Customer within thirty (30) days following the date in which the request is confirmed by CloudKnox. Customer’s failure to provide the request within thirty (30) days and other information as reasonably requested by CloudKnox will result in Customer being ineligible to receive the applicable Service Credit.
- [Backups. All Customer Data backups (“Backups”) are stored via cloud by either the Amazon Web Services (“AWS”) or an alternative hosting provider selected by CloudKnox. Such Backups may be reprocessed by CloudKnox in the applicable cloud if Customer data is lost or corrupted.]
Last Updated: October 17th, 2017
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Information Collection and Use
You can generally browse our Site without submitting any personally identifiable information.
For CloudKnox to provide our Service to you, your company’s administrator will be required to provide us with their name, contact information (address, email and phone number) and user identification name and password. Through the Service, we will collect your company’s software defined infrastructure identities that indicates which users, groups, service accounts and the like have access to specific areas of your company’s software infrastructure. We also receive certain information about your company’s infrastructure operations, infrastructure configuration and infrastructure operations events data regarding your computing environment and your use of the Services as well as your browser type and your IP address that indicates your location (collectively, “Operational Data”). If you contact us with questions or to request information, we will collect the personally identifiable information that you voluntarily transmit with your communications to us. We also receive your business contact information such as your company address and email to contact you regarding the Service.
If you contact us with questions or to request information, we will collect the personally identifiable information that you voluntarily transmit with your communications to us. We also receive your business contact information such as your company address and email to contact you regarding the Service.
We use your personally identifiable information to provide our Service to you, such as to determine user entitlements with respect to your company’s infrastructure, assess risks and to detect, report and alert you of anomalies within your infrastructure. We also use your information to detect fraud, illegal activities and security breaches, and to provide you with notices regarding Service you have purchased or used and to improve the general administration of the Service. We may analyze the Operational Data for trends and statistics in the aggregate.
CloudKnox recognizes the privacy interests of children and we encourage parents and guardians to take an active role in their children’s online activities and interests. The Service is not directed to children under the age of 13. CloudKnox does not target its Service to children under 13. CloudKnox does not knowingly collect personally identifiable information from children under the age of 13.
Cookies and Online Tracking
We may use small text files called cookies to improve overall experience with the Service. A cookie is a piece of data stored on the user’s hard drive containing information about the user. Cookies generally do not permit us to personally identify you. We generally use session cookies to authorize each request in the Service and such cookies expire when you close the Service. You can read more about cookies at www.allaboutcookies.org.
CloudKnox does not track users over time over multiple websites. CloudKnox follows your browser do not track signals.
We may provide your information to the vendors and service agencies that we may engage to assist us in providing our services to you for their use solely to provide us with such assistance. For example, we use AWS to host our Service.
We also may aggregate your Operational Data and provide it in non-personally identifiable for to third parties. If we desire to disclose your Operational Data in personally identifiable form, we will request your permission.
We will also disclose your personally identifiable information (a) if we are required to do so by law, regulation or other government authority or otherwise in cooperation with an ongoing investigation of a governmental authority, (b) to enforce the CloudKnox user agreements or to protect our rights or (c) to protect the safety of users of our Service and our services. We will not sell your personally identifiable information to any company or organization, but we may transfer your personally identifiable information to a successor entity upon a merger, consolidation or other corporate reorganization in which CloudKnox participates or to a purchaser or acquirer of all or substantially all of CloudKnox’s assets to which the Service relates.
We and our third-party hosting provider may employ procedural and technological measures, consistent with industry practice. Such measures are reasonably designed to help protect your personally identifiable information from loss, unauthorized access, disclosure, alteration or destruction. CloudKnox itself may use secure socket layer, firewalls, password protection and other internal measures to help prevent unauthorized access to your personally identifiable information. CloudKnox maintains internal policies on data access and processes designed to ensure that security incidents are discovered in a timely manner. CloudKnox also conducts audits of its security measures.
Updating Personally Identifiable Information
CloudKnox provides you with the ability to review, update and request to delete certain contact information that you provide to us by accessing your account or by contacting us at email@example.com.
Users Outside of the United States