This Hybrid Cloud Subscription and License Agreement (this "Agreement") by and between KeyStrike Inc., a software company whose address is at 8 The Green, Suite #1128, Dover, DE 19901, Kent County, Delaware USA (the "Provider"), and the corporation, limited liability company, partnership, sole proprietorship, other business entity or individual executing this Agreement (the "Customer"). The Provider and the Customer are sometimes referred to herein collectively as the "Parties" and individually as a "Party".
By accepting this Agreement, either by accessing or using the Solution, the Customer agrees to be bound by this Agreement as of the date of such access or use of the Solution (the "Effective Date"). The Customer's use of and the Provider's provision of the Solution (as defined below in Section 1.8) are governed by this Agreement.
The Provider provides the Solution, which consists of technology hosted on the Provider's computers and accessed remotely, via the Internet, as well as software hosted on the Customers' computers. The Provider also provides professional services related to implementation and installation of the Solution.
The Parties hereby agree that the Provider will provide the Solution, as well as such professional services as the Parties may agree, to the Customer pursuant to the terms of this Agreement and one or more Orders. Therefore, in consideration for the mutual covenants and commitments set forth herein, the adequacy and sufficiency of which are hereby acknowledged, the Parties agree as follows.
The following capitalized terms will have the following meanings whenever used in this Agreement.
1.1. "Customer Data" means all information processed or stored through the Solution by the Customer or on the Customer's behalf.
1.2. "Cloud Components" means the elements of the System that the Provider hosts on its computers.
1.3. "Data Processing Agreement" means the agreement between the Customer and the Provider regarding the processing of personal data.
1.4. "Documentation" means the Provider's standard manual related to use of the Solution.
1.5. "Initial Subscription Term" is defined in Section 11.1.
1.6. "On-Premise Components" means the elements of the Solution that Customer is to run on its computers.
1.7. "Order" means an order for access to the Solution and/or other professional services, which the Customer may submit to the Provider through the Provider's webpage or through direct contact with the Provider; provided that an Order is not binding on the Provider unless and until the Provider provides notice of acceptance to the Customer.
1.8. "Privacy/Security Law" means laws (a) related to personal data that (b) govern the Provider's handling of Customer Data (if any).
1.9. "Renewal Subscription Term" is defined in Section 11.1.
1.10. "Software" is defined in Section 6.1.
1.11. "Solution" means the Provider's cybersecurity software solution, which consists of a set-up of the Client on User's workstation(s), a Terminator on remote system(s) and an admin portal. The intended purpose of the Solution, for supported protocols, is to (a) provide an integrity tunnel between workstations and sensitive remote systems, (b) neutralize lateral movement, (c) ensure commands are physically typed on User's workstations, (d) attest every keystroke and mouse click, and (e) block unattested activity and trigger alerts.
1.12. "SSP" means the Provider's standard Support Services Policy, as set forth in Appendix 1 of this Agreement.
1.13. "Subscription Fees" means the subscription fees payable by the Customer to the Provider, as provided for in the Order and this Agreement.
1.14. "Subscription Term" means the Initial Subscription Term or a Renewal Subscription Term, as applicable.
1.15. "Term" is defined in Section 11.1 below.
1.16. "User" means any individual or contractor who uses the Solution on the Customer's behalf or through the Customer's account, whether authorized or not.
During the Term, the Customer may access and use the Solution solely for its internal business purposes pursuant to the terms of this Agreement and an Order, including such features and functions as the Order requires. Such internal business purposes do not include use by any parent, subsidiary, or affiliate of the Customer, or any other third party, and the Customer shall not permit any such use.
The Provider shall provide the remedies listed in the SSP for any failure of the Solution listed in the SSP. Such remedies are the Customer's sole remedy for any failure of the Solution, and the Customer recognizes and agrees that if the SSP does not list a remedy for a given failure, the Customer has no remedy.
The Customer may reproduce and use the Documentation solely as necessary to support each authorized Users' use of the Solution.
The Provider may revise the Solution's features and functions or the SSP at any time, including without limitation by removing such features and functions or reducing service levels in the SSP. If any such revision to the Solution materially reduces features or functionality provided pursuant to an outstanding Order, the Customer may, within 30 days of notice of the revision, terminate such Order, without cause, or terminate this Agreement without cause if such Order is the only one outstanding.
(a) License. The Provider hereby grants the Customer a nonexclusive and non-transferable license to reproduce and use the On-Premise Components, in such quantities as are set forth on the applicable Order and solely as a component of the Solution, provided that the Customer complies with the restrictions set forth below in Section 2.5.(b).
(b) Restrictions on Software Rights. Copies of all On-Premise Components created or transferred pursuant to this Agreement are licensed, not sold, and the Customer receives no title to or ownership of any copy or of the Software itself. Furthermore, the Customer receives no rights to the Software other than those specifically granted in Section 2.5.(a) above. Without limiting the generality of the foregoing, the Customer shall not: (a) modify, create derivative works from, distribute, publicly display, publicly perform, or sublicense the On-Premise Components; (b) reverse engineer, decompile, disassemble, or otherwise attempt to derive source code or other trade secrets from the On-Premise Components; or (c) use the On-Premise Components in any way forbidden by Section 5.1 below. The Provider grants the license in Section 2.5.(a) above under copyright and, solely to the extent necessary to exercise such rights, under any other applicable intellectual property rights of the Provider. The Customer may not use any information provided by the Provider or obtained by the Customer to create any software whose expression is substantially similar to that of the On-Premise Components or the Solution, nor may the Customer use any such information in any manner which would be restricted by any copyright or other intellectual property rights subsisting in it.
(c) Delivery. The Provider shall provide the On-Premise Components to the Customer, through a reasonable system of electronic download within 3 days of the Effective Date.
(d) Hosting and Management. The Customer shall host and manage the On-Premise Components as required by the Documentation. The Provider shall have no responsibility or liability for any failure of the Solution, including without limitation pursuant to the SSP, resulting from the Customer's failure to comply with the requirements in the Documentation.
After the free trial period described in Section 11.1, the Customer shall pay the Provider the fee set forth in the Order (the "Subscription Fee") for each Subscription Term. The Provider will not be required to refund any Subscription Fees under any circumstances.
Subscription Fees for the Initial Subscription Term are stated and will be binding on the Customer at the time the Customer's Order has been signed by the Customer and accepted by the Provider. The total amount of Subscription Fees depends on the Customer's requested choice of services. The Customer acknowledges and agrees the Customer's subscription involves a recurring payment of Subscription Fees, and unless the Customer notifies the Provider of cancellation pursuant to Section 11.1, the Customer authorizes the Provider to collect the then applicable fees and any taxes, using payment records, or other information the Customer has provided and uses to pay the Provider.
The Customer shall pay the Subscription Fees to the Provider in accordance with this Article 3 and the Order. The Customer shall pursuant to a completed Order provide to the Provider up-to-date and complete contact and billing details and the Provider shall invoice the Customer: (i) for the Subscription Fees payable in respect of the Initial Subscription Term; and (ii) subject to Section 11.1, at least 30 days prior to end of each Subscription Term, for the Subscription Fees payable in respect of the next Subscription Term, and the Customer shall pay each invoice within 30 days after the date of such invoice.
If the Provider has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of the Provider: (a) the Provider may, on no less than 5 business days' notice to the Customer and without liability to the Customer, disable the Customer's password, account and access to all or part of the services; and (b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of the Provider's banks in the USA from time to time, commencing on the due date and continuing until fully paid, whether before or after judgement.
All amounts and fees stated or referred to in this agreement: (a) shall be payable in US dollars; (b) are non-cancellable and non-refundable; (c) are exclusive of any tax, tariff, duty, etc., as further outlined in Section 3.7.
The Provider shall be entitled to increase the Subscription Fees and any fees payable in respect of additional services or users purchased (as per Section 5.2) at the start of each Renewal Subscription Period upon 40 days' prior notice to the Customer, and the Order shall be deemed to have been amended accordingly.
Amounts due under this Agreement are payable to the Provider without deduction for any tax, tariff, duty, or assessment imposed by any government authority (national, state, provincial, or local), including without limitation any sales, use, excise, ad valorem, property, withholding, or value-added tax, whether or not withheld at the source (collectively, "Sales Tax"). Except as forbidden by applicable law, the Provider may require that the Customer submit applicable Sales Taxes to the Provider. However, the preceding sentence shall not apply to the extent that the Customer is tax exempt, provided it gives the Provider a valid tax exemption certificate within 30 days of the Effective Date. If applicable law requires withholding or deduction of Sales Taxes or any other tax or duty, the Customer shall separately pay the Provider the withheld or deducted amount, over and above the fees due. For the avoidance of doubt, this Section 3.7 does not govern taxes based on the Provider's net income.
Fees for additional services or User subscriptions purchased by the Customer in the middle of a Subscription Term shall be prorated from the month of activation by the Provider for the remainder of the relevant Subscription Term and billed at the end of such Subscription Term or, at the Provider's sole discretion, within 30 days of the date of the Provider's invoice.
Each Party (as "Receiving Party") agrees to hold the other Party's (as "Disclosing Party") Confidential Information in strict confidence using the same degree of care it uses to protect its own confidential information, but no less than reasonable care, and not to disclose it to any third party or use it for any purpose outside the scope of this Agreement. "Confidential Information" means any non-public information disclosed by one Party to the other that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and circumstances of disclosure. The Receiving Party may disclose Confidential Information to its employees, contractors, and agents who have a need to know for purposes of this Agreement and who are bound by confidentiality obligations at least as protective as those herein. Each Party agrees to promptly notify the other of any unauthorized use or disclosure of Confidential Information and to cooperate in remedying such unauthorized use or disclosure.
The Customer shall use the Solution only for lawful purposes and in accordance with this Agreement. The Customer shall not use the Solution: (a) in any way that violates any applicable national, federal, state, local, or international law or regulation; (b) to transmit, or procure the sending of, any unsolicited or unauthorized advertising or promotional material; (c) to impersonate or attempt to impersonate the Provider, a Provider employee, another Customer, or any other person or entity; or (d) to engage in any other conduct that restricts or inhibits anyone's use or enjoyment of the Solution, or which may harm the Provider or Users of the Solution.
The Customer may purchase additional User subscriptions during the Subscription Term in accordance with the pricing set forth in the Order or as otherwise agreed by the Parties.
"Software" means the On-Premise Components and any other software provided by the Provider under this Agreement. The Provider retains all right, title, and interest in and to the Solution, Software, Documentation, and all intellectual property rights therein. No rights are granted to the Customer hereunder other than as expressly set forth in this Agreement.
The Customer retains all right, title, and interest in and to the Customer Data. The Customer grants the Provider a limited, non-exclusive license to process Customer Data solely as necessary to provide the Solution and related services under this Agreement.
If the Customer provides the Provider with any feedback or suggestions regarding the Solution, the Provider may use such feedback without restriction and without any obligation to the Customer.
The Provider warrants that the Solution will perform materially in accordance with the Documentation during the Subscription Term. The Provider's sole obligation and the Customer's sole remedy for breach of this warranty shall be as set forth in the SSP.
EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.1, THE SOLUTION AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND THE PROVIDER EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. THE CUSTOMER ACKNOWLEDGES THAT THE PROVIDER DOES NOT WARRANT THAT THE SOLUTION WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, OR VIRUS-FREE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE PROVIDER BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA, BUSINESS, OR GOODWILL, EVEN IF THE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PROVIDER'S TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, SHALL NOT EXCEED THE AMOUNTS PAID BY THE CUSTOMER TO THE PROVIDER IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM.
The Customer shall indemnify, defend, and hold harmless the Provider and its officers, directors, employees, and agents from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys' fees) arising out of or relating to the Customer's use of the Solution in violation of this Agreement or any applicable law, or any Customer Data processed through the Solution.
The Provider's collection and use of personal data in connection with the Solution is governed by the Provider's Privacy Policy, available at keystrike.com/privacy, and any applicable Data Processing Agreement entered into between the Parties. To the extent the Provider processes personal data on behalf of the Customer, the Parties agree to comply with applicable Privacy/Security Laws.
This Agreement commences on the Effective Date and continues until all Orders have expired or been terminated (the "Term"). Each Order shall specify an initial subscription term (the "Initial Subscription Term"). Unless either Party provides written notice of non-renewal at least 30 days before the end of the then-current Subscription Term, each Order shall automatically renew for successive periods equal to the Initial Subscription Term (each a "Renewal Subscription Term"). The Initial Subscription Term and all Renewal Subscription Terms are collectively referred to as the "Subscription Term." A free trial period, if applicable, shall be specified in the Order; after the free trial period, the Customer will be charged the applicable Subscription Fees.
Either Party may terminate this Agreement or any Order upon written notice if the other Party materially breaches this Agreement and fails to cure such breach within 30 days after receiving written notice of the breach.
Upon termination or expiration of this Agreement: (a) all licenses granted hereunder shall immediately terminate; (b) the Customer shall promptly cease all use of the Solution and destroy or return all copies of the On-Premise Components; and (c) each Party shall return or destroy the other Party's Confidential Information. Termination shall not relieve the Customer of any obligation to pay fees accrued prior to the termination date.
Sections 1, 3 (with respect to accrued obligations), 4, 6, 7.2, 8, 9, 11.3, 11.4, and 12 shall survive termination or expiration of this Agreement.
This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, USA, without regard to its conflict of law provisions. Any disputes arising under this Agreement shall be subject to the exclusive jurisdiction of the courts located in Kent County, Delaware.
This Agreement, together with all Orders and any applicable Data Processing Agreement, constitutes the entire agreement between the Parties with respect to its subject matter and supersedes all prior and contemporaneous agreements, understandings, negotiations, and discussions, whether oral or written, between the Parties.
The Provider reserves the right to modify these terms at any time. The Provider will provide notice of material changes to the Customer. Continued use of the Solution after notice of changes constitutes acceptance of the updated terms.
No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and the Provider's failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the remaining provisions of this Agreement shall continue in full force and effect.
The Customer may not assign or transfer this Agreement, or any rights or obligations hereunder, without the prior written consent of the Provider. The Provider may freely assign this Agreement. Any purported assignment in violation of this Section shall be void.
All notices under this Agreement shall be in writing and shall be deemed duly given when delivered by email or certified mail to the addresses specified in the Order or as otherwise notified by the Parties in writing.
Neither Party shall be liable for any failure or delay in performance under this Agreement to the extent such failure or delay is caused by circumstances beyond such Party's reasonable control, including acts of God, natural disasters, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, or accidents.
For questions regarding this Agreement, please contact KeyStrike Inc. at [email protected] or by mail at 8 The Green, Suite #1128, Dover, DE 19901, USA.
You may also download a copy of this agreement: Keystrike Terms of Service (PDF).