Terms of Service

These Terms of Service ("Agreement")apply to the solution and services provided by DevOcean Security Inc. (“Company”) to customers who signed awritten purchase order with Company (“Customer” and “Order”, respectively):

1. Grant of Right to Use and Restrictions.

1.1  Right to Use. Subject to the terms and conditions of thisAgreement and the terms of the Order, Company hereby grants Customer and Customeraccepts, a non-exclusive, non-sublicensable and non-transferable right to usethe Solution internally, during the applicable subscription term specified inthe Order, solely for its intended purposes. "Solution" means the Company’sproprietary DevOcean Unified Remediation Platform.

1.2  Restrictions. Except as expressly permitted herein, Customershall not, directly or indirectly: (i) sell, license (or sub-license), lease,assign, transfer, pledge, or share the Solution or Customer’s account on theSolution with or to any third party; (ii) use or permit the Solution to beused in order to perform services for third parties, whether on a servicebureau or time sharing basis or otherwise; (iii) disclose, publish or otherwisemake publicly available the results of any benchmarking of the Solution; (iv)use the Solution for purposes of competitive analysis or the development of acompeting software product or service; (v) use the Solution in any manner thatis prohibited by law, including without limitation, to sell, distribute,download or export the Solution: (a) into (or to a resident of or corporationincorporated in) Cuba, Iran, Libya, North Korea, Sudan or Syria, (b) to anyoneon the U.S. Commerce Department’s Table of Denial Orders or U.S. TreasuryDepartment’s list of Specially Designated Nationals, (c) to any country towhich such export or re-export is restricted or prohibited, or as to which theU.S. government or any agency thereof requires an export license or othergovernmental approval at the time of export or re-export without firstobtaining such license or approval, or (d) otherwise in violation of any exportor import restrictions, laws or regulations of the U.S. or any foreign agencyor authority. Customer agrees to the foregoing and warrant that it is notlocated in, under the control of, or a national or resident of any suchprohibited country or on any such prohibited party list; (vi) exceed any use limitations or otherrestrictions that are specified in the Order; (vii) contest Company’sIntellectual Property Rights (as defined below) to the Company IPR (as definedbelow); (viii) use the Solution for any purpose other than as permitted by thisAgreement or attempt to access any part of the Solution or its servers withoutauthorization or by unauthorized means; (ix) circumvent, disable or otherwiseinterfere with security-related or technical features or protocols of theSolution, such as features that restrict or monitor use of the Solution; or (x)cause or permit any third party to do any of the foregoing. Customeris solely responsible for acquiring and maintaining all of the hardware andsoftware necessary to access and make use of the Solution.

2.       Consideration. Inconsideration for the right to use the Solution, Customer shall payCompany the fees set forth in the Order. Unless otherwise specified in the Order, all amounts invoicedherein shall be due and payable within thirty (30) days of the date of Company’sinvoice. All amounts payable under this Agreement are exclusive of all taxesand duties of any kind, all of which shall be borne by Customer. If Customer isrequired to withhold or deduct any amount from any payment under thisAgreement, Customer shall gross-up the payment such that after the withholdingor deduction Company shall receive full payment in the amount equal to the feesset forth in the Order. All payments not made when due shall bearinterest at the rate of 1.5% per month, or at the highest interest rate allowedby law, whichever is lower.

3.       Confidentiality. Each party (“Receiving Party”) mayhave access to certain non-public or proprietary information or materials ofthe other party (“Disclosing Party”) whether in tangible or intangibleform ("Confidential Information"). Without derogating from theforegoing, the Solution and terms of the Agreement and the Order shall bedeemed as Confidential Information. Receiving Party may use the ConfidentialInformation solely for the purpose of exercising its rights under thisAgreement. Receiving Party shall not disclose or make available theConfidential Information to any third party, except to its employees andconsultants that have a need-to-know such information and that are bound byobligations at least as protective as provided herein. Receiving Party shallprotect the Confidential Information using measures at least as protective asthose taken to protect its own confidential information of like nature (but inno event less than a reasonable level of care). Receiving Party will promptlynotify Disclosing Party in writing in the event of any actual or suspectedunauthorized use or disclosure of any Confidential Information. ConfidentialInformation shall not include: (i) information that was in the public domain atthe time of disclosure or becomes in the public domain after disclosure not dueto breach of this Agreement by Receiving Party; (ii) information that wasalready in the possession of the Receiving Party before disclosure herein; and(iii) information disclosed to Receiving Party by any third party who is notsubject to confidentiality restrictions. Notwithstanding the foregoing,Receiving Party may disclose Confidential Information that it is required todisclose pursuant to applicable laws or an order of any competent authority orcourt, provided that Receiving Party shall, if permitted by law, notifyDisclosing Party in advance of such disclosure in order to enable DisclosingParty to seek confidential treatment or a protective order.

4.       Ownership. Company or its licensors retain all right, title,interest in and to the Solution, Feedback and all related documentation andConfidential Information and anymodifications, improvements and derivatives thereof and all intellectual property rights thereto ("Company IPR"). This Agreement does not convey to Customer an interestin or to any Company IPR but only the limited right to use the Solution pursuantto Section 1 above.

5.       Feedback. Customer may provide Company with feedback regardingthe Solution and its use, including without limitation suggestions, ideas, bugnotes and user experience reviews (collectively, “Feedback”). Company may, at nocost, freely usesuch Feedback, for any purpose whatsoever and Customerhereby assigns all right, titleand interest in and to allFeedback to Company upon creation thereof.

6.       Privacy. Company’sprivacy policy is available at: https://devocean.security/legal/privacy-policy.Customer shall ensure to establish the legalbasis of processing of the personal information of its personnel and, ifrequired by law, obtain the consent, of its users and any data subjects.

7.       Disclaimer of Warranty.

7.1.   THE SOLUTION IS PROVIDED “AS IS”, WITHOUT ANYREPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THEMAXIMUM EXTENT PERMITTED BY LAW, COMPANY DISCLAIMS ALL WARRANTIES, EITHEREXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OFMERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE ANDNON-INFRINGEMENT. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THESOLUTION REMAINS WITH CUSTOMER.

7.2.   COMPANY DOES NOT WARRANT THAT THE SOLUTION WILLBE UNINTERRUPTED OR ERROR-FREE; OR THAT ERRORS/BUGS ARE REPRODUCIBLE AND DOESNOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THEUSE OF THE SOLUTION.

7.3.   SERVICE LEVEL COMMITMENTS. THE SERVICES MINIMUMAVAILABILITY SHALL BE NO LESS THAN NINETY-NINE POINT NINE PERCENT (99.9%) OFTHE TIME DURING ANY CALENDAR MONTH. COMPANY WILL PROVIDE THE FOLLOWING SPECIFICSUPPORT TIERS AS PART OF COMPANY’S PERFORMANCE OF THE SERVICES: RESPONSE TIMEWITHIN THREE (3) HOURS FOR CRITICAL ISSUES (WHERE A PROBLEM HAS BEEN IDENTIFIEDTHAT MAKES THE CONTINUED USE OF ONE OF MORE SYSTEMS IMPOSSIBLE OR THE ISSUE MAYCAUSE LOSS OF DATA AND/OR RESTRICT DATA AVAILABILITY AND/OR CAUSE SIGNIFICANTIMPACT TO CUSTOMER); RESPONSE TIME WITHIN EIGHT (8) HOURS FOR MAJOR ISSUES (APROBLEM THAT DOES NOT HAVE A MAJOR EFFECT ON THE SERVICES USED TO SUPPORTAPPLICABLE BUSINESS OPERATIONS OR WHERE AN ACCEPTABLE WORK AROUND EXISTS);RESPONSE TIME WITHIN TWENTY-FOUR (24) HOURS FOR MINOR ISSUES (SUCH AS GENERALUSER QUESTIONS ABOUT USAGE OF SOFTWARE OR WEB REPORTING).

8.       Limitation of Liability. EXCEPT FOR FRAUD, WILLFUL MISCONDUCT,BREACH OF CONFIDENTIALITY OR INDEMNIFICATION FOR THIRD PARTY INFRINGEMENTCLAIMS PURSUANT TO SECTION 9 BELOW, TO THE FULLEST EXTENT PERMITTED BYAPPLICABLE LAW, COMPANY AND ITS AFFILIATES, SHAREHOLDERS, SUPPLIERS, MANAGERS,DIRECTORS, OFFICERS, EMPLOYEES AND/OR LICENSORS (COLLECTIVELY, “AFFILIATES”)SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIALDAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, WHETHER UNDER CONTRACT, TORT OROTHERWISE, FOR ANY LOSS OR DAMAGE, INCLUDING, WITHOUT LIMITATION ANY LOSS OFBUSINESS, LOST PROFITS OR LOST OR DAMAGED DATA, SUFFERED BY ANY PERSON ORENTITY, EVEN IF COMPANY HAS BEEN ADVISED OF THEPOSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN NOEVENT SHALL COMPANY'S AND ITS AFFILIATES’ AGGREGATE LIABILITY ARISING OUT OF ORIN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNT OF PAYMENTS ACTUALLY MADETO COMPANY FOR THE SOLUTION DURING THE TWELVE (12) MONTHS PERIOD PRECEDING THEEVENT THAT GAVE RISE TO THE CLAIM.

9.       Indemnification. Company agrees to defend Customer from and againstany and all claims alleging that the Solution infringe any intellectualproperty rights of a third party. Company shall indemnify Customer against any damagesand losses finally awarded in judgment or settlement as a result of such claim,including reasonable attorney's fees. Company’s indemnification obligationshall be subject to the following: (i) Customer provides written notice of theclaim to Company promptly after becoming aware thereof; (ii) Company has solecontrol of the defense and settlement of the claim; and (iii) Customer shallprovide reasonable assistance in the defense at Company’s expense.

10.     Term andTermination.

10.1. The term of this Agreement shall be as setforth in the Order and may be terminated earlier in accordancewith this Section (“Term”).

10.2. Either party may terminate this Agreement uponthirty (30) days’ written notice, with or without cause. Upon termination or expiration of thisAgreement: (i) the rights granted to Customer under this Agreement shall expireand Customer shall discontinue all further use of the Solution; (ii) Customershall pay in full all amounts due and owed to Company; and (iii) Customershall, at Company's election, erase or return to Company all ConfidentialInformation in its possession or under its control. Sections 1.2, 2-9, 10.2 and11 shall survive any termination of this Agreement.  

11.     Insurance. Company shall furnish to Customer uponrequest a copy of Company’s certificate of insurance. Company shall maintainappropriate insurance coverage in effect at all times during Company’sperformance of the services herein.

12.     Miscellaneous. ThisAgreement shall be construed and governed by the laws of Delaware, without regards to the conflict oflaw provisions therein. Any dispute arising out of or in connection with thiscontract, including any question regarding its existence, validity ortermination, shall be referred to and finally resolved by the competent courtsin Delaware, and each party hereby submits itself to the exclusive jurisdictionof these courts. The application of the United Nations Convention of Contracts for the International Sale of Goods isexpressly excluded. ThisAgreement represents the entire agreement between Customer and Companyregarding the subject matter herein and may be amended only by a writtenagreement of both parties. Company may collect, retain, use and transferaggregate data regarding use of the Solution without any restrictions. To the extent anyconflict arises between the terms and conditions of this Agreement and thosecontained in the Order, the terms andconditions contained in this Agreement shall prevail. The failure of either party to enforce any rightsgranted herein or to take action against the other party in the event of anybreach herein shall not be deemed a waiver by that party. If any provision ofthis Agreement is held to be unenforceable, such provision shall be reformedonly to the extent necessary to make it enforceable. Customer may not assign itsrights or obligations under this Agreement without the prior written consent ofCompany. Company may assign its rights and obligations under this Agreement toan affiliate or in connection with a merger, consolidation, reorganization orsale of all or substantially all of its assets.

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