This master subscription agreement (the “Agreement”) is effective on the earlier of: (i) the date of the execution of an Order referencing this Agreement; or (ii) Customer’s use of the Services (the “Effective Date”), by and between Wiz Inc., a company incorporated under the laws of the State of Delaware having its principal place of business at 2345 Yale St., Palo Alto CA 94306 USA (the “Company”) and the entity referenced in the Order (the “Customer”) (each, a “Party” and collectively, the “Parties”). Customer may use the Platform (as defined below) subject to the terms below.
If Customer has purchased the subscription granted hereunder from a partner, reseller or distributor authorized by the Company (“Partner”), to the extent there is any conflict between this Agreement and the agreement entered between you and the respective Partner, including any purchase order (“Partner Order Form”), then, as between Customer and Company, this Agreement shall prevail. Any rights granted to you in such Partner Order Form which are not contained in this Agreement, apply only in connection with such Partner. In that case, you must seek redress or realization or enforcement of such rights solely with such Partner and not the Company.
1.1 Subject to the terms and conditions of this Agreement (including payment obligations), Company hereby grants Customer, in connection with each Order, a limited, non-exclusive, non-sublicensable, non-transferable and revocable right to remotely access (i.e. on a SaaS basis) and/or use the Company cloud security platform (“Platform”) in object code form, during the corresponding Subscription Term (as defined below), solely for Customer's internal purposes.
1.2 Unless otherwise indicated, the term “Platform” also includes all revisions, improvements and/or updates and any appliance, user manuals and documentation including the Company’s SLA (“Documentation”) provided to Customer in connection with the operation of the Platform. Customer may only use the Platform in accordance with the Documentation, subject to any use limitations indicated in an order document issued by Company and agreed to by Customer for the provision of the applicable Platform and Services granted under this Agreement or Partner Order Form (if purchased via Partner) (collectively, “Order”), and applicable laws and regulations. Each Order is hereby incorporated into this Agreement by reference. To the extent of any conflict or inconsistency between the terms and conditions of this Agreement and an Order or a Partner Order, the former shall prevail (unless an Order specifically states otherwise). The Platform and any related services provided to Customer and detailed in an Order shall be referred to as the “Services”.
If Customer has purchased the Services directly from Company this Section 2 shall apply.
Unless otherwise specified in the respective Order or this Agreement: (i) the Services are conditioned on Customer's payment in full of the applicable fees set forth in each Order and Company reserves the right to suspend Customer’s access to the Services for non or late payment, (ii) Customer will pay all amounts due under this Agreement in U.S. Dollars currency, (iii) all amounts invoiced hereunder are due and payable within thirty (30) days of the date of the invoice, and (iv) all fees and other amounts paid hereunder are non-refundable and without right of set off. Any amount not paid when required to be paid hereunder shall accrue interest on a daily basis until paid in full at the lesser of: (i) the rate of one and a half percent (1.5%) per month; or (ii) the highest amount permitted by applicable law. All amounts payable under each Order are exclusive of all sales, use, value-added, withholding, and other direct or indirect taxes, charges, levies and duties. Customer shall bear all value added, state, local, withholding, and other taxes or other charges applicable to the Services.
If Customer purchased the subscription via a Partner, the Services are subject to the full payment of the applicable fees as set forth in the Partner Order Form.
3. Permitted Users. The Platform may be accessed solely by Customer or its affiliates' employees or service providers who are explicitly authorized by Customer to use the Platform (each, a “Permitted User”). Customer will ensure that the Permitted Users comply with the terms of this Agreement at all times; and shall be fully responsible for any breach of this Agreement by a Permitted User. Unauthorized access or use of the Platform must be immediately reported to the Company.
4. Prohibited Uses. Except as specifically permitted herein, without the prior written consent of the Company, Customer must not, and shall not allow any Permitted User or any third party to, directly or indirectly: (i) copy, modify, create derivative works of or distribute any part of the Platform (including by incorporation into its products); (ii) sell, license (or sub-license), lease, assign, transfer, pledge, or share Customer's rights under this Agreement with any third party; (iii) use any “open source” or “copyleft software” in a manner that would require the Company to disclose the source code of the Platform to any third party; (iv) disclose the results of any testing or benchmarking of the Platform to any third party; (v) disassemble, decompile, reverse engineer or attempt to discover the Platform’s source code or underlying algorithms; (vi) use the Platform in a manner that violates or infringes any rights of any third party; (vii) remove or alter any trademarks or other proprietary notices related to the Platform; (viii) circumvent, disable or otherwise interfere with security-related features of the Platform or features that enforce use limitations; (ix) export, make available or use the Platform in any manner prohibited by applicable laws (including without limitation export control laws); and/or (x) transmit any malicious code (i.e., software viruses, Trojan horses, worms, malware or other computer instructions, devices, or techniques that erase data or programming, infect, disrupt, damage, disable, or shut down a computer system or any component of such computer system) or other unlawful material in connection with the Platform.
5. Customer Data and Account Data.
5.1 As between the parties, Customer owns and retains all right, title and interest (including all intellectual property rights) in and to any data or information that originates, resides on, is otherwise processed through or derived from Customer's systems and processed by Company in the provision of the Services (“Customer Data”). Customer shall be solely responsible for the legality, reliability, integrity, accuracy and quality of all Customer Data. Customer hereby grants to Company a non-exclusive, worldwide, royalty-free right to use Customer Data solely to the extent necessary to perform its obligations under this Agreement.
5.2 Except as otherwise expressly agreed between the Parties in writing, Customer specifically agrees not to use the Services to collect, store, process or transmit any sensitive data including: (i) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards ("PCI DSS"); (ii) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act ("HIPAA") not authorized or covered by a duly executed Business Associate Agreement with Company; or (iii) any other personal data of an individual deemed to be in a "special category" under any applicable privacy or data protection laws.
5.3 To the extent Customer Data contains any personally identifiable information, Customer warrants and represents that it has provided all appropriate notices, received the required consents or permits and/or have any and all ongoing legal bases, and has acted in compliance with applicable privacy laws and regulations, as to allow Company to use the Customer Data to perform the Services in accordance with this Agreement. To the extent Customer requires a Data Processing Agreement (“DPA”), the parties shall comply with the Company’s DPA which shall be made available to Customer upon request.
6. Third Party sites. Customer acknowledges that the Services may link to third party websites or services that are connected or relevant to the Services. Any link from the Service does not imply any Company endorsement, approval or recommendation of, or responsibility for, those websites or services or their content or operators and the use of such third party services are subject to the terms and conditions of the third party provider. To the maximum extent permitted by law, the Company shall not bear and expressly disclaims all responsibility or liability of any kind relating to such third party websites or services.
7. Warranties. Each Party represents and warrants that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; and that the execution and performance of this Agreement will not conflict with other agreements to which it is bound or violate applicable law.
8. Intellectual Property Rights. The Platform and/or any copies thereof, is not for sale and is the Company’s sole property. All right, title, and interest, including any intellectual property rights evidenced by or embodied in, attached, connected, and/or related to the Platform (and any and all improvements enhancements, corrections, modifications, alterations, revisions, extensions and updates and derivative works thereof) and any other products, deliverables or services provided by Company; are and shall remain owned solely by Company or its licensors. This Agreement does not convey to Customer any interest in or to the Platform other than a limited right to use the Platform in accordance with Section 1. Nothing herein constitutes a waiver of the Company’s intellectual property rights under any law. Company reserves all rights not expressly granted herein to the Platform.
If Company receives any feedback (whether orally or in writing) (e.g., questions, comments, suggestions or the like) regarding any of the Services (collectively, “Feedback”), all rights, including intellectual property rights in such Feedback shall belong exclusively to Company and that such shall be considered Company's Confidential Information and Customer hereby irrevocably and unconditionally transfers and assigns to Company all intellectual property rights it has in such Feedback and waives any and all moral rights that Customer may have in respect thereto. It is further understood that use of Feedback, if any, may be made by Company at its sole discretion, and that Company in no way shall be obliged to make use of any kind of the Feedback or part thereof.
9. Confidentiality. Each Party may have access to certain non-public information of the other Party, in any form or media, including without limitation trade secrets and other information related to the products, software, technology, data, know-how, or business of the other Party, and any other information that a reasonable person should have reason to believe is proprietary, confidential, or competitively sensitive (the “Confidential Information”). For the avoidance of doubt, Customer Data and the Documentation shall be considered Confidential Information. Each Party shall take reasonable measures, at least as protective as those taken to protect its own confidential information, but in no event less than reasonable care, to protect the other Party's Confidential Information from disclosure to a third party. The receiving party’s obligations under this Section, with respect to any Confidential Information of the disclosing party, shall not apply to and/or shall terminate if such information: (a) was already lawfully known to the receiving party at the time of disclosure by the disclosing party; (b) was disclosed to the receiving party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the receiving party has become, generally available to the public; or (d) was independently developed by the receiving party without access to, or use of, the disclosing party’s Confidential Information. Neither Party shall use or disclose the Confidential Information of the other Party except for performance of its obligations under this Agreement (“Permitted Use”). The receiving party shall only permit access to the disclosing party's Confidential Information to its respective employees, consultants, affiliates, agents and subcontractors having a need to know such information in connection with the Permitted Use, who either (i) have signed a non-disclosure agreement with the receiving party containing terms at least as restrictive as those contained herein or (ii) are otherwise bound by a duty of confidentiality to the receiving party at least as restrictive as the terms set forth herein. The receiving party will be allowed to disclose Confidential Information to the extent that such disclosure is required by law or by the order or a court of similar judicial or administrative body, provided that, to the extent permitted by applicable law, it notifies the disclosing Party of such required disclosure to enable disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. Notwithstanding the foregoing, each Party can disclose the terms and existence of this Agreement in connection with a due diligence. All right, title and interest in and to Confidential Information are and shall remain the sole and exclusive property of the disclosing Party.
10. LIMITED WARRANTIES. The Company represents and warrants that, under normal authorized use, the Platform shall substantially perform in conformance with its Documentation. As the Customer's sole and exclusive remedy and the Company's sole liability for breach of this warranty, the Company shall use commercially reasonable efforts to repair the Platform and, if the Company cannot do so within a reasonable time, not to exceed 30 days, Customer may terminate this Agreement and receive a pro-rata refund of any amounts pre-paid by Customer for the remaining unused period of the Term. The warranty set forth shall not apply if the failure of the Platform results from or is otherwise attributable to: (i) repair, maintenance or modification of the Platform by persons other than the Company or its authorized contractors; (ii) accident, negligence, abuse or misuse of the Platform by Customer or its Permitted Users; (iii) use of the Platform other than in accordance with the Platform's Documentation; and/or (iv) the combination of the Platform with equipment or software not authorized or provided by the Company. Company shall not be liable for any inaccuracy in the Service's output and/or delay and/or unavailability of the Services, caused due to (a) failure of Customer's Internet access or any public telecommunications network, shortage of adequate power or transportation facilities, (b) any incompatibility between the Customer's systems and the Platform appliance and/or (c) maintenance within the Customer's systems affecting the operation of the Platform. OTHER THAN AS EXPLICITLY STATED IN THIS AGREEMENT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PLATFORM, ITS RELATED SERVICES AND ANY OUTPUT RESULTED FROM THE USE OF THE PLATFORM ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE COMPANY DOES NOT WARRANT THAT: (i) THE PLATFORM AND/OR THE SERVICES WILL MEET CUSTOMER'S REQUIREMENTS, OR (ii) THE PLATFORM WILL OPERATE ERROR-FREE. EXCEPT AS SET FORTH IN THIS AGREEMENT, THE COMPANY EXPRESSLY DISCLAIMS ALL EXPRESS WARRANTIES AND ALL IMPLIED WARRANTIES, INCLUDING MERCHANTABILITY, TITLE, NON- INFRINGEMENT, NON-INTERFERENCE, FITNESS FOR A PARTICULAR PURPOSE.
COMPANY SHALL NOT BE RESPONSIBLE FOR ANY WARRANTIES AND REPRESENTATIONS MADE BY ANY PARTNER TO CUSTOMER, AND SUCH WARRANTIES AND REPRESENTATIONS ARE THE SOLE RESPONSIBILITY OF SUCH PARTNER.
11. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW:
(A) EXCEPT FOR ANY DAMAGES RESULTING FROM CUSTOMER'S MISAPPROPRIATION OR OTHERWISE VIOLATION OF COMPANY'S INTELLECTUAL PROPERTY RIGHTS (INCLUDING MISUSE OF THE SUBSCRIPTION BY CUSTOMER); NEITHER PARTY OR ITS AFFILIATES SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, REPUTATION, OR PROFITS, DATA, OR DATA USE.
(B) EXCEPT FOR THE COMPANY INDEMNIFICATION OBLIGATION UNDER SECTION 12, AND/OR DAMAGES RESULTING FROM CUSTOMER'S MISAPPROPRIATION OR OTHERWISE VIOLATION OF COMPANY'S INTELLECTUAL PROPERTY RIGHTS (INCLUDING MISUSE OF THE SUBSCRIPTION BY CUSTOMER); EITHER PARTY’S INCLUDING ITS AFFILIATES’ MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING ITS EXHIBITS, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO COMPANY BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. FOR CLARITY LIMITATIONS IN THIS SECTION DO NOT APPLY TO PAYMENTS DUE TO COMPANY UNDER THIS AGREEMENT.
12. Indemnification. Company agrees to defend, at its expense, any third party action or suit brought against the Customer alleging that the Platform, when used as permitted under this Agreement and each respective Order or Partner Order (as the case may be), infringes intellectual property rights of a third party (“IP Infringement Claim”); and the Company will pay any damages awarded in a final judgment against the Customer that are attributable to any such claim, or that are otherwise agreed in a settlement with the prior written consent of Company, provided that (i) the Customer promptly notifies the Company in writing of such claim; (ii) the Customer grants the Company the sole authority to handle the defense or settlement of any such claim and provides the Company with all reasonable information and assistance, at Company’s expense; and (iii) Customer refrains from admitting any liability or otherwise compromising the defense in whole or in part, without the express prior written consent of Company. The Company will not be bound by any settlement that the Customer enters into without the Company's prior written consent.
If the Platform becomes, or in the Company's opinion is likely to become, the subject of an IP Infringement Claim, then the Company may, at its sole discretion: (a) procure for the Customer the right to continue using the Platform; (b) replace or modify the Platform to avoid the IP Infringement Claim; or (c) if options (a) and (b) cannot be accomplished despite the Company's reasonable efforts, then the Company or Customer may terminate all affected Orders and Company shall provide a pro-rata refund for any amount pre-paid by Customer for the remaining unused period of the Term.
Notwithstanding the foregoing, the Company shall have no responsibility for IP Infringement Claims resulting from or based on: (i) modifications to the Platform made by a party other than the Company or its designee; (ii) the Customer's failure to implement software updates provided by the Company specifically to avoid infringement; or (iii) combination or use of the Platform with equipment, devices or software not supplied by the Company or not in accordance with the Documentation.
This Section states Company's entire liability, and Customer's exclusive remedy, for claims or alleged or actual infringement.
13. Term. This Agreement shall enter into force and effect on the Effective Date and, unless earlier terminated in accordance with Section 14, shall remain in full force and effect until all Orders or Partner Order Form (as the case may be) expire or are terminated (the “Term”).
For the avoidance of doubt, if Customer has purchased the Services through a cloud marketplace, then the Subscription Term commences on the Effective Date of this Agreement and not the date determined by the marketplace.
14. Termination. Either Party may terminate an Order, and/or this Agreement: (a) in respect of an Order in accordance with any termination rights specified therein; (b) with immediate effect if the other Party materially breaches an Order and/or this Agreement and such breach remains uncured thirty (30) days after having received written notice thereof. Upon termination or expiration of this Agreement, and/or an Order: (i) Platform subscriptions granted to Customer shall expire, and Customer shall discontinue any further use and access thereof; (ii) Customer shall immediately delete and dispose of all copies of the Documentation in Customer’s or any of its representatives’ possession or control; and (iii) Company may delete all Customer Data without affecting any of the Company's rights to the Account Data. The provisions of this Agreement that, by their nature and content, must survive the termination of this Agreement in order to achieve the fundamental purposes of this Agreement shall so survive. Customer shall be responsible for downloading its Customer Data prior to termination of this Agreement. Each Partner Order Form may be terminated in accordance with any termination rights specified therein.
15. Customer Reference. Unless stated otherwise in an Order, Customer hereby grants Company a revocable license to use Customer's name and logo to identify Customer as a customer of Company, on Company's website, presentations, marketing materials, or otherwise.
16. Miscellaneous. This Agreement, including any Order(s) and any exhibits attached or referred hereto, represents the complete agreement concerning the subject matter hereof and may be amended only by a written agreement executed by both Parties. The failure of either Party to enforce any rights granted hereunder or to take action against the other Party in the event of any breach hereunder shall not be deemed a waiver by that Party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. If any provision of this Agreement is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable. Any use of the Platform by an agency, department, or other entity of the United States government shall be governed solely by the terms of this Agreement. This Agreement represents the entire agreement of the Parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous oral or written understandings and statements by the Parties with respect to such subject matter. Without limiting the generality of the foregoing, this Agreement supersedes any terms or conditions (whether printed, hyperlinked, or otherwise) in any Customer's purchase order or other standardized business forms, which purport to supersede, modify or supplement this Agreement. Neither Party may assign its rights or obligations under this Agreement without the prior written consent of the other Party, which consent may not be unreasonably withheld or delayed. Notwithstanding the foregoing, this Agreement may be assigned by either Party to its affiliate or in connection with a merger, consolidation, sale of all of the equity interests of the Party, or a sale of all or substantially all of the assets of the Party to which this Agreement relates. Subject to the foregoing, this Agreement will be binding on the parties and their permitted successors and assigns. This Agreement shall be governed by and construed under the laws of the state of New York, without reference to principles and laws relating to the conflict of laws. The competent courts of New York City, New York shall have the exclusive jurisdiction with respect to any dispute and action arising under or in relation to this Agreement. Notwithstanding the foregoing, Company may seek injunctive or other equitable relief in any court of competent jurisdiction worldwide. This Agreement does not, and shall not be construed to create any relationship, partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the Parties. The Company will not be liable for any delay or failure to provide the Services resulting from circumstances or causes beyond the reasonable control of the Company including, but not limited to on account of strikes, shortages, riots, insurrection, fires, flood, storms, explosions, acts of God, war, government or quasi-governmental authorities actions, acts of terrorism, earthquakes, power outages, pandemic or epidemic (or similar regional health crisis), or any other cause that is beyond the reasonable control of the Company. These terms may be amended by the Company from time to time at its sole discretion. This Agreement may be executed in electronic counterparts, each of which counterpart, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same agreement.