Definitions of terms used herein are set forth in Section 11.
The parties hereby agree:
- Software License.
1.1. Development Right to Use. If you intend to or do use the Green Rocket Security Product only for the purpose(s) of developing, testing, prototyping and/or demonstrating your application, then Green Rocket Security grants you a nonexclusive, nontransferable, revocable, limited license to use the Green Rocket Security Product only for those purposes, and not for any other purpose. In such case, the Green Rocket Security product is made available to you “AS IS” and without warranty of any kind. Green Rocket Security may audit your use of the Green Rocket Security Product to confirm that a commercial or production license is not required.
1.2. Subscription Rights to Use. During the Subscription Term, in consideration of the Fees paid by Company, Green Rocket Security grants to Company a non-exclusive, revocable, non-transferable, limited license to install (at Company’s facility or at a Company-controlled space within a third-party data center) and use the Software, solely for Company’s provision of identity and access management services to its end users, and limited to the number of Subscription Users for which Company has paid the applicable Fees.
1.3. Reservation of Rights. All rights not expressly granted to Company are reserved by Green Rocket Security and its licensors.
1.4. Support Levels. Green Rocket Security shall provide Company with the level of support purchased by Company. Green Rocket Security reserves the right, from time to time, to modify any of the support levels offered.
1.5. Company Responsibilities. Company shall: (a) be responsible for compliance with the Agreement, (b) promptly notify Green Rocket Security of any increase in the number of Subscription Users, (c) be solely responsible for the accuracy, integrity, and legality of Company Data and the means by which it acquires and uses such Company Data, (d) use the Green Rocket Security Product in accordance with applicable laws, rules, regulations (including, without limitation, export, data protection and privacy laws, rules and regulations) and any Green Rocket Security Product documentation, including this Agreement, and (e) notify Green Rocket Security immediately of any unauthorized use of, or access to, the Green Rocket Security Product.
1.6. Restrictions. Company shall not, directly or indirectly: (a) sublicense, resell, rent, lease, distribute, market, commercialize or otherwise transfer rights or usage to the Green Rocket Security Product or any modified version or derivative work of the Green Rocket Security Product created by or for Company, (b) provide the Green Rocket Security Product, or any modified version or derivative work of the Green Rocket Security Product created by or for Company, on a timesharing, service bureau, service provider or other similar basis, (c) remove or alter any copyright, trademark or proprietary notice in the Green Rocket Security Product, (d) reverse engineer, decompile, or disassemble the Green Rocket Security Product, (e) copy any features, functions or graphics of the Green Rocket Security Product for any purpose other than what is expressly authorized in this Agreement, (f) use the Green Rocket Security Product in any way that would subject the Green Rocket Security Product, in whole in or in part, to a Copyleft License (but not including the CDDL), or (g) send or store spam, unlawful, infringing, obscene, or libelous material, or Malicious Code.
- Proprietary Rights.
2.1. Green Rocket Security Intellectual Property. Green Rocket Security owns the Intellectual Property Rights in and to the Green Rocket Security Product. This Agreement does not convey or transfer any ownership rights in the Green Rocket Security Product, or any Intellectual Property Rights therein, to Company. Green Rocket Security’s name, logo, trade names and trademarks are owned by Green Rocket Security, and no right is granted to Company to use any of the foregoing except as expressly permitted herein. Green Rocket Security and its suppliers reserve all rights, title, and interest in and to all copies of the Green Rocket Security Product.
2.2. Ownership of Company Data; License. As between Company and Green Rocket Security, Company owns all Intellectual Property Rights in and to the Company Data.
2.3. Suggestions. Green Rocket Security shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use, copy, modify, or distribute, including by incorporating into any product or service owned by Green Rocket Security, any suggestions, enhancement requests, recommendations or other feedback provided by Company, its affiliates, employees agents, successors and assigns, Company Customers and/or any of its Subscription Users, relating to any product or service owned by Green Rocket Security.
- Fees and Payment.
3.1. Fees. Fees are as set forth in the applicable proposal. Except as otherwise provided in the proposal, fees will be: (i) fixed during the Subscription Term set forth in such form, (ii) invoiced upon the execution of the agreement or upon Green Rocket Security’s acceptance of a purchase order, as applicable; (iii) quoted and payable in United States dollars; (iv) non-cancelable and non-refundable.
3.2. Ongoing Support and Maintenance. Fees for ongoing support and maintenance of the Green Rocket Security Product shall be set forth in the proposal. Ongoing support (with the level of support detailed in the proposal) and maintenance provides the Company with access to the Technical Support team of Green Rocket Security and any security updates and feature enhancements published by Green Rocket Security. The fees must be paid timely (prior to the commencement of the support and maintenance term) by the Company. The Company must also keep their ongoing support and maintenance periods (with fees paid) consecutive, that is, without a time lapse, to enjoy any future support and maintenance.
3.3. Renewal. The ongoing support and maintenance shall automatically renew for additional one year terms, unless either party gives the other written notice of non-renewal at least 90 days prior to the end of the relevant Subscription Term, unless the number of days is specified elsewhere in the agreement between the Company and Green Rocket Security. All fees will be due annually in advance 30 days prior to the applicable anniversary date, and any pricing changes for such renewal term will be communicated by Green Rocket Security. Green Rocket Security reserves the right to modify the fees in connection with Subscription Term renewal.
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3.5. Payment. Company shall pay all fees specified in all proposals and agreements within 30 days from the date of Green Rocket Security’s invoice, unless otherwise specified in the proposal/agreement. Company agrees to provide Green Rocket Security with complete and accurate billing and contact information.
3.6. Overdue Charges. Overdue amounts are subject to interest at 1.5% per month, or the maximum rate permitted by law, whichever is lower. Notwithstanding the foregoing, if the applicable charges are under reasonable and good faith dispute and Company is cooperating diligently to resolve the dispute, Green Rocket Security will not exercise its rights set forth under this section.
3.7. Taxes. Unless otherwise provided or as required by the applicable jurisdiction, all fees do not include Taxes, and Company is responsible for paying all Taxes and Duties associated with its purchases hereunder, excluding any Taxes based on Green Rocket Security’s net income or property.
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- Term and Termination.
4.1. Term. This Agreement commences on the Effective Date and continues while the Green Rocket Security Product is in use by the Company.
4.2. Termination for Incurable Breach. The Agreement shall terminate immediately if Company violates Section 1.6(f).
4.3. Termination by Company or Green Rocket Security. Either party may terminate this Agreement prior to the end of a Subscription Term if the other party: (i) materially breaches its obligations hereunder and, where such breach is curable, such breach remains uncured for thirty (30) days following written notice of the breach or (ii) becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors and such petition or proceeding is not withdrawn or otherwise terminated within thirty (30) days of its initiation.
4.4. Effect of Termination; Surviving Provisions. Upon any termination or expiration of this Agreement, Company shall immediately cease all use of the Green Rocket Security Product and shall return to Green Rocket Security or destroy all Green Rocket Security Confidential Information in its possession in accordance with Section 5.2. Company’s obligation to make a payment of any outstanding, unpaid fees, the defined terms used in the Agreement and the terms of Sections 1.6, 2, 3, 4.4, 5, 6.2, 7, 8, 9, 10 and 11 shall survive termination or expiration of this Agreement.
5.1. Confidentiality. The Receiving Party will not disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (a) to those employees, representatives, or contractors of the Receiving Party who require access to the Confidential Information to exercise its rights under this Agreement and who are bound by written agreement not to disclose third-party confidential or proprietary information disclosed to such party, or (b) as such disclosure may be required by law or governmental regulation, subject to the Receiving Party providing to the Disclosing Party written notice to allow the Disclosing Party to seek a protective order or otherwise prevent the disclosure. Nothing in this Agreement will prohibit or limit the Receiving Party’s use of information (a) previously known to it without obligation of confidence, (b) independently developed by or for it without use of or access to the Disclosing Party’s Confidential Information, (c) acquired by it from a third party that is not under an obligation of confidence with respect to such information, or (d) that is or becomes publicly available through no breach of this Agreement. The Receiving Party acknowledges the irreparable harm that improper disclosure of Confidential Information may cause; therefore, the injured party is entitled to seek equitable relief, including temporary restraining order(s) or preliminary or permanent injunction, in addition to all other remedies, for any violation or threatened violation of this Section. The terms of this Agreement and the structure, sequence and organization of the Green Rocket Security Product are Confidential Information of Green Rocket Security or its licensors.
5.2. Destruction. Within five (5) days after a Disclosing Party’s request, or upon any termination or expiration of this Agreement, the Receiving Party shall return or destroy the Disclosing Party’s Confidential Information.
5.3. Exclusion. The confidentiality obligations under Section 5.1 above shall not apply to any publicly available information or the Green Rocket Security Community Edition.
- Warranties, Exclusive Remedies and Disclaimers.
6.1. Green Rocket Security Warranties. Green Rocket Security warrants that (i) the Support services will be performed in a manner consistent with general industry standards; (ii) for a period of ninety (90) days following its delivery, the Green Rocket Security Product as originally delivered to Company shall perform materially as intended by Green Rocket Security. For any breach of either warranty, Company’s sole and exclusive remedy shall be to terminate the Agreement pursuant to Section 4.3 and, notwithstanding anything to the contrary in Section 3.1 of the Agreement, have Green Rocket Security refund to Company the pro rata unused portion of any pre-paid subscription fees.
6.2. Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE GREEN ROCKET SECURITY PRODUCT IS PROVIDED TO COMPANY STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES AND SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO COMPANY.
- Limitation of Liability.
7.1. Limitation on All Damages. EXCEPT FOR COMPANY’S BREACH OF SECTION 1.6 AND 5.1, IN NO EVENT SHALL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE THE TOTAL AMOUNT PAID BY COMPANY TO GREEN ROCKET SECURITY UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE ACT OR OMISSION GIVING RISE TO THE LIABILITY. THE FOREGOING SHALL NOT LIMIT COMPANY’S PAYMENT OBLIGATIONS UNDER SECTION 3.
7.2. Disclaimer of Consequential Damages. EXCEPT FOR COMPANY’S BREACH OF SECTION 1.6 AND 5.1, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOST PROFITS OR REVENUE OR FOR ANY INDIRECT, SPECIAL, COVER, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING UNDER THIS AGREEMENT 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.
8.1. By Green Rocket Security. Green Rocket Security shall defend Company from any third party action, suit or proceeding brought or made against Company alleging that the Software or Company’s use of the Software infringes any United States patent or United States federally registered copyright and Green Rocket Security shall pay any expenses incurred by Company (including reasonable attorneys’ fees) and any final judgment entered against Company in any such proceeding or agreed to in settlement, provided that (a) Green Rocket Security is promptly notified in writing of such action, suit or proceeding, (b) Green Rocket Security or its designee is given sole control of such defense and all related settlement negotiations, and (c) Company gives all information and assistance reasonably requested by Green Rocket Security or such designee. If any such action, suit or proceeding is brought or threatened, or if Green Rocket Security believes any such action, suit or proceeding is imminent, Green Rocket Security may, at its option, (i) procure for Company the right to use the Software, or (ii) replace the Software with other suitable products that provide substantially similar functionality. In the event Green Rocket Security determines that Company will require rights from a third party to use the Software and Green Rocket Security is unable to procure such rights for Company or replace the Software with products that provide substantially similar functionality, and in lieu of the foregoing indemnity, Green Rocket Security shall have the option of refunding a pro-rata portion of the then-current Fee(s) paid by Company for the Software or the affected part thereof. Green Rocket Security shall have no liability under this Section 8 or otherwise to the extent a claim or suit is based upon (a) use of the Software in combination with software or hardware not provided by Green Rocket Security, if infringement would have been avoided in the absence of such combination, (b) modifications to the Software not made by Green Rocket Security, if infringement would have been avoided by the absence of such modifications, (c) use of any version other than a current release of the Software, if infringement would have been avoided by use of a current release, or (d) any action or omission of Company for which Company is obligated to indemnify Green Rocket Security under Section 8.2 below.
THIS SECTION 8 STATES GREEN ROCKET SECURITY’s ENTIRE LIABILITY AND COMPANY’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT AND MISAPPROPRIATION CLAIMS BASED ON THE SOFTWARE OR SERVICES OR BOTH.
8.2. By Company. Company shall defend Green Rocket Security from any third party action, suit or proceeding brought or made against Green Rocket Security arising out of: (i) any breach of Sections 1.5 or 1.6 of this Agreement by Company, its affiliates, employees agents, successors and assigns or Company Customers; or (ii) relating to or based upon Company Data or the activities conducted by Company using the Software (other than the normal, ordinary, and intended uses of the Software), and Company shall pay any final judgment entered against Green Rocket Security in any such proceeding or agreed to in settlement; or (iii) any warranties or service level commitments made by Company to third parties, provided that (a) Company is promptly notified in writing of such claim or suit, (b) Company or its designee has sole control of such defense and/or settlement, and (c) Green Rocket Security gives all information and assistance requested by Company or such designee.
- United States Government Users.
9.1. Commercial Computer Software. The Green Rocket Security Product is “Commercial Computer Software,” as that term is defined in 48 C.F.R. 2.101, and as the term is used in 48 C.F.R. Part 12, and is a Commercial Item comprised of “commercial computer software” and “commercial computer software documentation”.
9.2. United States Federal Civilian Government Entities. If Company is a federal civilian government entity, Green Rocket Security provides the Green Rocket Security Product, for ultimate federal government end use solely in accordance with the license rights customarily provided to the public as defined in this “standard” or “customary” commercial license Agreement, as specified in 48 C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data) of the Federal Acquisition Regulation (“FAR”) and its successors.
9.3. United States Department of Defense Agencies. If Company is any agency within the Department of Defense (“DOD”), Green Rocket Security provides the Green Rocket Security Product, for ultimate federal government end use solely in accordance with the license rights customarily provided to the public as defined in this “standard” or “customary” commercial Agreement, as specified in 48 C.F.R. §§227.7202-3 and 48 C.F.R. §§227.7202-4 of the DOD FAR Supplement (“DFARS”) and its successors, and consistent with 48 C.F.R. 227.7202. This Government Users clause, consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202, is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses Government rights in computer software, computer software documentation or technical data related to the Green Rocket Security Product under this Agreement and in any subcontract under which this commercial computer software and commercial computer software documentation is acquired or licensed.
10.1. Publicity. Either party may include the other’s name and logo in customer or vendor lists on such party’s website and/ or marketing collateral. Company also agrees to: (i) serve as a reference or hosting onsite reference visits; (ii) collaborate on press releases announcing or promoting the relationship; and (iii) collaborate on case studies or other marketing collateral.
10.2. 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 Green Rocket Security Product. Without limiting the foregoing, (i) each of Green Rocket Security and Company represents that it is not named on any U.S. government list of person or entities prohibited from receiving exports, and (ii) Company shall not permit Subscription Users to access and/or use the Green Rocket Security Product in violation of any U.S. export embargo, prohibition, or restriction.
10.3. Assignment. Company may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Green Rocket Security. Any attempted assignment in breach of this section shall be void. This Agreement shall bind and inure to the benefit of the parties and their respective successors and permitted assigns.
10.4. Relationship of the Parties. Green Rocket Security and Company are independent contractors, and nothing in this Agreement or any attachment hereto will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties.
10.5. No Third-Party Beneficiaries. There are no third party beneficiaries to this Agreement.
10.6. Choice of Law and Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of California and the federal U.S. laws applicable therein, excluding its conflicts of law provisions. Company and Green Rocket Security agree to submit to the personal and non-exclusive jurisdiction of the courts located in Santa Clara County, California. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
10.7. Attorneys Fees. In any action related to this Agreement, if any party is successful in obtaining some or all of the relief it is seeking or in defending against the action, the other party shall pay, on demand, the successful party’s reasonable attorneys’ fees and reasonable costs.
10.8. Manner of Giving Notice. Notices regarding this Agreement shall be in writing and addressed to Company at the address Company provides, or, in the case of Green Rocket Security, when addressed to Green Rocket Security Inc., Attn: Chief Financial Officer at 1900 Camden Ave., San Jose, CA 95124, or such other address as Green Rocket Security may provide to Company. Notices shall be deemed delivered (i) on the day of delivery, if delivered by hand during business hours; (ii) two business days after sending if delivered by a reputable and recognized overnight courier, (iii) upon the addressee’s confirmation of receipt if sent by email. Notices regarding the Green Rocket Security Product in general may be given by electronic mail to Company’s e-mail address on record with Green Rocket Security and such notice shall be deemed to have been delivered twelve (12) hours after sending.
10.9. Force Majeure. Neither party shall be liable to the other for any delay or failure to perform hereunder (excluding payment obligations) due to circumstances beyond such party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (excluding those involving such party’s employees), service disruptions involving hardware, software or power systems not within such party’s reasonable control, and denial of service attacks.
10.10. Amendment and Waiver. No amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed (either manually or electronically) by an authorized representative of Company and Green Rocket Security. To the extent of any conflict between these terms and conditions (as may be modified by an amendment signed by Company and Green Rocket Security) and any other schedule or attachment hereto, these terms and conditions (as may be modified by an amendment signed by Company and Green Rocket Security) shall prevail unless expressly stated otherwise. Notwithstanding any language to the contrary therein, and except as set forth in Section 3.5, no terms stated in a purchase order or in any other order document (other than an Order Form expressly incorporated herein) shall be incorporated into this Agreement, and all such terms shall be void. For purposes of clarity, no conflicting or additional terms contained in any Company purchase order shall apply, even if the purchase order is accepted by Green Rocket Security, and the terms of this Agreement shall govern any such order. No failure or delay in exercising any right hereunder shall constitute a waiver of such right. Except as otherwise provided, remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
10.11. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such 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 shall remain in effect.
10.12. Priority of Documents. In case of any conflict between the terms of this Agreement and any Exhibit(s) hereto, the terms of this Agreement shall govern.
10.13. Company agrees to be notified by Green Rocket Security about critical issues, updates, and promotional offers.
11.1. “Accepting” means clicking “accept” or signing (either manually or electronically) and, if applicable, returning a manually-signed Order Form issued to you by Green Rocket Security.
11.2. “Additional Terms” means any additional terms and conditions relating to Company’s use of the Software as are specified in an Order Form or any other exhibit to this Agreement or otherwise in writing by Green Rocket Security.
11.3. “Affiliate” means a company that is Controlled by, under common Control with or Controlling the Company during the period of such control.
11.4. “API” means an application programming interface provided by Green Rocket Security as part of the Green Rocket Security Product, which sets forth rules and specifications that may be used to access Company Data in accordance with this Agreement.
11.5. “CDDL” means the Common Development and Distribution License, version 1.0 (a copy of which is available at: http://opensource.org/licenses/CDDL-1.0).
11.6. “Company Data” means any data, information or material submitted by Company to, or stored by Company in, a database related primarily to a Green Rocket Security Product.
11.7. “Confidential Information” means information that one party (the “Disclosing Party”) provides to the other party (“Receiving Party”) during the term of this Agreement that is identified in writing at the time of disclosure as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.
11.8. “Control” means ownership, directly or indirectly, of more than 50% of the voting securities that vote for the election of the board of directors or other managing body.
11.9. “Copyleft License” means a software license that requires that information necessary for reproducing and modifying such software must be made available publicly to recipients of executable versions of such software (see, e.g., GNU General Public License and http://www.gnu.org/copyleft/).
11.10. “Green Rocket Security” means Green Rocket Security Inc.
11.11. “Green Rocket Security™ Authorized Reseller” means a Green Rocket Security Product reseller that is in good standing with Green Rocket Security under a fully-executed Green Rocket Security reseller agreement and is associated with an Order Form under this Agreement.
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11.13. “Green Rocket Security Product” means the binary-code version of the Software as applicable, including associated APIs and/or all images, photographs, animation’s, “applets”, video, audio, music, text, and user documentation incorporated therein) that is ordered by Company under an Order Form and which is installed by Company or Company’s agent at Company’s premises or at a Company-controlled space within a third party data center.
11.14. “Intellectual Property Rights” means any patents and applications therefore, copyrights, trademarks, service marks, trade names, domain name rights, trade secret rights, and all other intellectual property rights.
11.15. “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents, or programs.
11.16. “Order Form” means any Green Rocket Security Subscription Order Form or proposal that is entered into between Green Rocket Security and Company or Company and a Green Rocket Security Authorized Reseller, as applicable, from time to time. Each Order Form is deemed incorporated herein by reference.
11.17. “Original Code” means the Software source code.
11.18. “Software” means all or any part of the Green Rocket Security Product in binary code format, consisting of Green Rocket Security’s software.
11.19. “Subscription Term” means the period of time during which Company may use and receive support for the applicable Green Rocket Security Product, as set forth in an Order Form.
11.20. “Subscription User” means an individual authorized by Company to use the applicable Green Rocket Security Product, for whom a subscription has been purchased and who has been given a unique user identification.
11.21. “Support Services” means the support services to which Company is entitled as part of its subscription and that are described in Exhibit B.
11.22. “Taxes“ means any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including VAT (subject to reverse charge), GST (subject to reverse charge), excise, sales, use or withholding taxes.