SENSEISOFT LLC AND/OR ITS AFFILIATES (“SENSEISOFT”) IS WILLING TO GRANT ACCESS TO THE SAAS PRODUCTS TO YOU AS THE COMPANY OR THE LEGAL ENTITY THAT WILL BE UTILIZING THE SAAS PRODUCTS (REFERENCED BELOW AS “CUSTOMER”) ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THIS AGREEMENT (AS DEFINED BELOW). BY ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY OR ORGANIZATION, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ENTITY OR ORGANIZATION TO THIS AGREEMENT. CUSTOMER AND SENSEISOFT MAY EACH ALSO BE REFERRED TO AS A “PARTY” AND TOGETHER, THE “PARTIES”.
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SAAS PRODUCTS. THIS SAAS TERMS OF SERVICE (“AGREEMENT”) CONSTITUTES A LEGAL AND ENFORCEABLE CONTRACT BETWEEN CUSTOMER AND CYBERARK. BY INDICATING CONSENT ELECTRONICALLY, OR ACCESSING OR OTHERWISE USING THE SAAS PRODUCTS, CUSTOMER AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE TO THIS AGREEMENT, DO NOT INDICATE CONSENT ELECTRONICALLY AND MAKE NO FURTHER USE OF THE SAAS PRODUCTS.
1. Access and Use. Subject to payment of all applicable fees set forth in the Order and the terms and conditions of this Agreement, Senseisoft grants Customer, during the Subscription Term, a non-exclusive, non-transferable right to access and use (and permit Authorized Users to access and use) the SaaS Products and applicable Documentation solely for Customer’s and its Affiliates’ internal business purposes in accordance with the Documentation and in the quantity specified in the applicable Order. Customer will operate the SaaS Products in accordance with the Documentation and be responsible for the acts and omissions of its Authorized Users.
2. Access and Use Restrictions. Customer shall not (directly or indirectly): (i) remove any notice of proprietary rights from the SaaS Products; (ii) modify or reverse engineer any part of the SaaS Products; (iii) except to the limited extent applicable laws specifically prohibit such restriction, decompile, attempt to derive the source code or underlying ideas or algorithms of any part of the SaaS Products, attempt to recreate the SaaS Products or use the SaaS Products for any competitive purpose; (iv) copy, modify, translate or otherwise create derivative works of any part of the SaaS Products; (v) sell, resell, encumber, rent, lease, time-share, distribute, transfer or otherwise use or exploit or make available any of the SaaS Products to or for the benefit of any third party; (vi) use the SaaS Products to infringe on the Intellectual Property rights, publicity rights, or privacy rights of any third party, or to store defamatory, trade libelous, or otherwise unlawful data; or (vii) send, store or process in the SaaS Products any personal health data, credit card data, personal financial data or other such sensitive data which may be, without limitation, subject to the Health Insurance Portability and Accountability Act, Gramm-Leach-Bliley Act, or the Payment Card Industry Data Security Standards, or any data that is subject to the International Traffic in Arms Regulations maintained by the United States Department of State. Customer’s authorized use of the SaaS Products is subject to the purchased quantities and features set forth in the applicable Order for the SaaS Products. Fees for the SaaS Products are based on use of the SaaS Products in a manner consistent with the Documentation. If Customer’s usage is in a manner outside of the Documentation, then Customer will cooperate with Senseisoft to address any applicable burden on the SaaS Products or pay an additional mutually agreed upon fee.
3. Trial Services. If Customer is using a free trial, a proof of concept version of the SaaS Products, a beta version of the SaaS Products, or using the SaaS Products on any other free-of-charge basis as specified in an Order including any related support services to the extent provided by Senseisoft in its sole discretion (collectively, “Trial Services”), Senseisoft makes such Trial Services available to Customer until the earlier of (i) the end of the free trial or proof of concept period or beta testing period as communicated by Senseisoft or specified in an Order, (ii) the start date of any purchased version of such SaaS Products, or (iii) written notice of termination from Senseisoft (“Trial Services Period”). Senseisoft grants Customer, during the Trial Services Period, a non-exclusive, non-transferable right to access and use the Trial Services for Customer’s internal evaluation purposes in accordance with the Documentation and subject to the access and use restrictions set forth in this Agreement. Customer is authorized to use Trial Services only for evaluation and not for any business or productive purposes, unless otherwise authorized by Senseisoft in writing. Any data Customer enters into the Trial Services and any configurations made to the Trial Services by or for Customer during the term of such Trial Services will be permanently lost unless Customer (a) has purchased a subscription to the same SaaS Products as covered by the Trial Services or (b) exports such data or configurations before the end of such free period. There is no guarantee that features or functions of the Trial Services will be available, or if available will be the same, in the general release version of the SaaS Products, and Customer should review the SaaS Products features and functions before making a purchase. Senseisoft will be under no obligation to provide Customer any maintenance or support services with respect to the Trial Services. Notwithstanding anything to the contrary, Senseisoft provides the Trial Services “as is” and “as available” without any warranties or representations of any kind. To the extent permitted by law, Senseisoft disclaims all implied warranties and representations, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose and non-infringement. Customer assumes all risks and all costs associated with its use of the Trial Services. Customer’s sole and exclusive remedy in case of any dissatisfaction or Senseisoft’s breach of the Agreement with respect to such Trial Services is termination of the Trial Services. Any obligations on behalf of Senseisoft to indemnify, defend, or hold harmless under this Agreement are not applicable to Customers using Trial Services.
4.Payment Terms. Customer shall pay all invoices within thirty (30) days of date of invoice, without any deduction or set-off (except for any amount disputed promptly and in writing by Customer in good faith), and payment will be sent to the address specified by Senseisoft. Any amounts arising in relation to this Agreement not paid when due will be subject to a late charge of one and one-half percent (1 1/2 %) per month on the unpaid balance or the maximum rate allowed by law, whichever is less. Without prejudice to Customer’s rights set out elsewhere in this Agreement, all SaaS Products fees are non-refundable and payable in advance. Senseisoft may invoice for purchases of SaaS Products upon delivery.
5. Intellectual Property. Except for the rights granted in this Agreement, all rights, title, and interest in and to the SaaS Products, Documentation, and Senseisoft Intellectual Property are hereby reserved by Senseisoft, its Affiliates or licensors. Except as provided for herein, all rights, title, and interest in and to Customer Intellectual Property are hereby reserved by Customer, its Affiliates or licensors. Nothing in this Agreement shall (a) transfer ownership of any Intellectual Property rights from one Party to the other, or (b) provide either Party a right to use the other Party’s trade names, logos, or trademarks.
6. Customer Data. Customer owns all right, title and interest in all Customer Data. Nothing in this Agreement shall be construed to grant Senseisoft any rights in Customer Data beyond those expressly provided herein. Customer grants Senseisoft and its Affiliates the limited, non-exclusive right to view and use the Customer Data solely for the purpose of providing and improving the SaaS Products.
7. Customer Data Content. As between Senseisoft and Customer, Customer is solely responsible for (i) the content, quality and accuracy of Customer Data as made available by Customer and by Authorized Users, (ii) providing notice to Authorized Users with regards to how Customer Data will be collected and used for the purpose of the SaaS Products, (iii) ensuring Customer has a valid legal basis for processing Customer Data and for sharing Customer Data with Senseisoft (to the extent applicable), and (iv) ensuring that the Customer Data as made available by Customer complies with applicable laws and regulations including (where applicable) the EU General Data Protection Regulation (2016/679) (“GDPR”), any applicable laws of EU member states implementing the GDPR (including the UK Data Protection Act 2018), and the California Consumer Privacy Act, in each case as amended, consolidated, re-enacted or replaced from time to time and only if and insofar as they apply (collectively, “Applicable Data Protection Laws”).
8. Security of Customer Data. Senseisoft shall (i) ensure that is has in place appropriate administrative, physical and technical measures designed to protect the security and confidentiality of Customer Data against any accidental or illicit destruction, alteration or unauthorized access or disclosure to third parties; (ii) have measures in place designed to protect the security and confidentiality of Customer Data; and (iii) access and use the Customer Data solely to perform its obligations in accordance with the terms of this Agreement, and as otherwise expressly permitted in this Agreement. Senseisoft shall not materially diminish its security controls with respect to Customer Data during a particular SaaS Products term.
9. Maximum Liability. Except Customer’s payment obligations herein, in no event will either Party’s maximum aggregate liability arising out of or related to this Agreement, regardless of the cause of action and whether in contract, tort (including negligence), warranty, indemnity or any other legal theory, exceed the total amount paid or payable to Senseisoft under this Agreement during the three (3) month period preceding the date of initial claim.
10. No Consequential Damages. Senseisoft will not have any liability to Customer for any loss of profits or revenues, loss of goodwill, or for any indirect, special, incidental, consequential or punitive damages arising out of, or in connection with this Agreement, however caused, whether in contract, tort (including negligence), warranty, indemnity or any other legal theory, and whether or not Customer has been advised of the possibility of such damages.
11. Construction. This Agreement is not intended to and will not be construed as excluding or limiting any liability which cannot be limited or excluded by applicable law, including liability for (a) death or bodily injury caused by a Party’s negligence, or (b) gross negligence, willful misconduct, or fraud.
12. Term. This Agreement will be effective upon the Effective Date and shall remain in force during the applicable Subscription Term of the SaaS Products or unless or until terminated by either Party pursuant to this Section. Prior to the end of the Subscription Term, Customer may contact Senseisoft to extend the term of their Subscription Term for the period stated in any such agreed upon renewal Order.
13. Termination for Convenience. Either Party may terminate this Agreement, upon sixty (60) days prior written notice, for any reason, provided however that: (i) if Senseisoft terminates the Agreement, it will refund the fees paid to it for the unused Subscription Term to the Customer, pro-rated, and (ii) if Customer terminates the Agreement, it shall not be entitled to any refund.
14. Termination for Cause. Either Party may terminate this Agreement immediately upon notice to the other Party if the other Party: (i) materially breaches this Agreement and fails to remedy such breach within thirty (30) days after receiving written notice of the breach from the other Party, or (ii) commences bankruptcy or dissolution proceedings, has a receiver appointed for a substantial part of its assets, or ceases to operate in the ordinary course of business. In addition, a Party may terminate this Agreement, in whole or in part, or cease provision of SaaS Products if required to comply with applicable law or regulation, and such termination will not constitute a breach of this Agreement by the terminating Party.
15. Effects of Termination/Expiration. Upon termination or expiration of this Agreement: (i) Customer will have no further right to access or use the SaaS Products; and (ii) each Party shall within thirty (30) days after written request return or destroy any tangible Confidential Information of the other Party within its possession or control that is not contained on the SaaS Products. Any Customer Data contained on the SaaS Products will be deleted within sixty (60) days of termination/expiration of Customer’s Subscription Term. Customer acknowledges that it is responsible for exporting any Customer Data to which Customer desires continued access after termination/expiration, and Senseisoft shall have no liability for any failure of Customer to retrieve such Customer Data and no obligation to store or retain any such Customer Data after such sixty (30) day period. Following termination of the SaaS Products, Senseisoft may immediately deactivate Customer’s account. Any accrued rights and obligations will survive termination.
16. Independent Contractors. Nothing in this Agreement will be construed to imply a joint venture, partnership or principal-agent relationship between Senseisoft and Customer, and neither Party will have the right, power or authority to obligate or bind the other in any manner whatsoever.
17. Severability and Waiver. This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Agreement or of any other term or provision hereof. Should any term or provision of this Agreement be declared void or unenforceable by any court of competent jurisdiction, the Parties intend that a substitute provision will be added to this Agreement that, to the greatest extent possible, achieves the intended commercial result of the original provision. The failure of either Party to enforce any rights granted to it hereunder or to take action against the other Party in the event of any breach hereunder will not be deemed a waiver by that Party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.