CHECKMARX TERMS OF SERVICE

PLEASE READ THESE TERMS OF SERVICE (THE “AGREEMENT”) CAREFULLY BEFORE ACCESSING OR USING THE SOFTWARE OR SERVICES. UNLESS YOU HAVE A SEPARATE WRITTEN AGREEMENT WITH CHECKMARX GOVERNING YOUR USE OF THE SOFTWARE OR SERVICES, THIS AGREEMENT, WHICH INCLUDES A BINDING ARBITRATION CLAUSE THAT IMPACTS YOUR DISPUTE RESOLUTION RIGHTS, REPRESENTS A BINDING LEGAL AGREEMENT BETWEEN YOU AS THE INDIVIDUAL, THE COMPANY, OR THE LEGAL ENTITY THAT WILL BE UTILIZING THE SOFTWARE OR SERVICES (“YOU” OR “CUSTOMER”) AND THE CHECKMARX ENTITY IDENTIFIED BELOW (“CHECKMARX”).

IF YOU ARE ACCESSING OR USING THE SOFTWARE OR SERVICES, OR ANY PART THEREOF, ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU HEREBY ACCEPT THIS AGREEMENT ON BEHALF OF SUCH COMPANY OR ENTITY, YOU ACKNOWLEDGE THAT SUCH COMPANY OR ENTITY IS LEGALLY BOUND BY THIS AGREEMENT, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ACT ON BEHALF OF AND BIND SUCH COMPANY OR ENTITY. YOU MAY NOT ACCEPT THIS AGREEMENT ON BEHALF OF A COMPANY OR ENTITY UNLESS YOU ARE AN EMPLOYEE OR OTHER AUTHORIZED AGENT OF SUCH COMPANY OR ENTITY WITH THE RIGHT, POWER AND AUTHORITY TO BIND AND ACT ON BEHALF OF SUCH COMPANY OR ENTITY.

IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU ARE NOT AUTHORIZED TO ACCESS OR USE THE SOFTWARE OR SERVICES OR ANY PART THEREOF. BY CLICKING “I ACCEPT,” “I AGREE,” OR SIMILAR ACCEPTANCE TEXT, BY EXECUTING A DOCUMENT INCORPORATING THIS AGREEMENT BY REFERENCE, OR BY ACCESSING OR USING THE SOFTWARE OR SERVICES, YOU HEREBY AGREE TO THIS AGREEMENT.

Definitions.
1. “Affiliate” means any entity that, directly or indirectly, controls, is controlled by, or is under common control with such Party, and “control” means the power to direct the management and policies of the controlled entity.
2. “AI Features” means those features or components of the Solution that use generative artificial intelligence, large language models, or machine learning to generate AI Output.
3. “AI Output” means the content that is dynamically generated by the AI Features in response to Customer’s use of the Solution.
4. “Documentation” means the Solution documentation located at https://www.checkmarx.com/documentation.
5. “Fees” means the Solution and/or Service fees payable by Customer, as set out in the Quote.
6. “Hosting Services” means Checkmarx’s provision of Internet hosting services for On Premises Software, purchased separately and indicated as a separate line item on the Quote.
7. “License Type” means the current license type definitions and usage restrictions located at https://www.checkmarx.com/legal/terms.
8. “Local Country Addendum” means, if applicable to Customer, the additional country-specific terms located at https://www.checkmarx.com/legal/terms.
9. “On Premises” means the delivery model where Checkmarx provides the Solution for download and installation on servers owned, leased or managed by Customer.
10. “Quote” means a valid quotation document provided by Checkmarx or an authorized Checkmarx partner setting out the quantity and type of Solution licenses and Services purchased by Customer.
11. “SaaS” means the delivery model under which Checkmarx provides the Solution on a subscription basis, hosted by Checkmarx and accessed via the Internet.
12. “Service(s)” means the Support, Hosting Services, managed services, professional services, and other Solution-related services purchased by Customer, as set out in a Quote.
13. “Software” means the object code form of Checkmarx’s software programs, and all Software updates and maintenance releases provided as part of the Support services during the Subscription Term.
14. “Solution” means the Software or data product license purchased by Customer, as set out in the Quote.
15. “Support” means the Software maintenance and Solution support services that are described in the support SLA located at: https://www.checkmarx.com/legal/terms.
Subscription Term. Each Solution license and Service subscription begins on the start date (or renewal date) set out in the Quote, or if no date is set in the Quote, the date that the Solution license keys or access credentials are first made available to Customer (the “Commencement Date”) and will continue during the time period set forth in the Quote, including any renewal term(s) agreed by the Parties (the “Subscription Term”). If no term is set forth in the Quote, the Subscription Term shall mean twelve (12) months from the Commencement Date.
Solution License Grants and Restrictions. This Section applies when Customer has purchased Solution licenses or has been granted Evaluation Access:
1. Licenses and Usage Rights. Subject to this Agreement and Customer’s payment of the Fees, Checkmarx grants to Customer and its Affiliates a limited, non-exclusive, non-transferable, non-sublicensable license, during the Subscription Term to access and use the Solution and Documentation for their internal business purposes, subject to the License Type restrictions and the quantity and type of licenses purchased. For On Premises Software licenses, Customer may additionally: (i) install the Software on a server owned, leased or managed by Customer, or if Customer has purchased multiple server licenses, the number of servers set out in the Quote; and (ii) retain a backup copy of the Software and Documentation for non-production, inactive backup and archival purposes only. Customer shall remain responsible at all times for the use of the Solution and compliance with all terms and conditions of this Agreement by its Affiliates.
2. Use by Authorized Contractors. Customer may grant access to the Solution to contractors who need to use the Solution to fulfill contractual obligations to provide services to Customer (an “Authorized Contractor”). The Solution may only be used by the Authorized Contractor in accordance with the terms and conditions set out in this Agreement: (a) for the benefit of Customer; and (b) only to the extent required to provide the services to the Customer. The Authorized Contractor may not use the Solution for the Authorized Contractor’s own benefit or for the benefit of any party other than Customer. Customer shall remain responsible at all times for the use of the Solution and compliance with all terms and conditions of this Agreement by its Authorized Contractors.
3. APIs. To the extent that Checkmarx has authorized Customer to access the Solution via application programming interfaces (“APIs”), Customer acknowledges and agrees that the APIs, the API access credentials, and any API-related documentation and material: (a) are confidential and proprietary to Checkmarx; (b) may not be distributed, disclosed or otherwise provided to third parties; (c) may be used only for Customer’s internal use, solely to enable Customer’s use of the Solution, subject to the license grants and restrictions applicable to the Solution. Checkmarx reserves the right to restrict API use to prevent abuse, security risks or excessive use.
4. Evaluation Access. This Section applies if the Customer has been provided access to the Solution or any features thereof by Checkmarx for trial use or evaluation purposes, or as a beta or prerelease offering (“Evaluation Access”). In the event Customer has been granted Evaluation Access by Checkmarx, Checkmarx hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to access and use the evaluation, beta or prerelease Solution or features (the “Evaluation Products”) for Customer’s internal evaluation purposes only, during the evaluation period designated by Checkmarx (the “Evaluation Period”). If no Evaluation Period is specified in writing by Checkmarx, the Evaluation Period shall be fourteen (14) days from Customer’s first access of the Evaluation Product. Customer hereby accepts this Agreement by accepting Evaluation Access to the Evaluation Products. Evaluation Access is subject to all restrictions set forth in this Agreement, and all rights not expressly granted herein are reserved by Checkmarx. All Evaluation Products are offered on an “AS-IS” basis without any warranty, and Checkmarx shall have no liability or obligations with respect to the Evaluation Products. Customer assumes all risks and all costs associated with its use of the Evaluation Products. Customer acknowledges that Checkmarx may choose not to release any beta or prerelease features or functionality as part of any future general release versions. At the end of the Evaluation Period, if Customer chooses not to enter into a definitive agreement with Checkmarx with respect to the Evaluation Products, Customer will promptly cease use of the Evaluation Products and shall delete all copies of the Evaluation Products and related documentation.
5. Restrictions. Customer and, if relevant, its Affiliates and Authorized Contractors, may not, and may not permit others to: (a) use the Solution in excess of the License Type restrictions or quantities purchased; (b) attempt to access the Solution by unauthorized means or circumvent any License Type limitations or usage restrictions; (c) reverse engineer, decompile, disassemble, modify or create derivative works of the Solution or Documentation; (d) attempt to derive the source code of the Solution; (e) reproduce, publish, distribute, transfer, publicly display, resell, rent, lease, sublicense, loan, or lend the Solution or Documentation to any third party; (f) use the Solution to provide application security services to a third party, or make the Solution available for use by a third party; (g) use the Solution, or any output generated by the Solution, for the purpose of competitive analysis, competitive benchmarking or to build a competitive product or service; (h) transfer, assign or permit the sharing of passwords, license keys, access credentials, API keys or access codes to a third party; (i) make available to any third party any reports generated by the Solution, except Customer and its Affiliates may disclose reports to their regulators, insurers, or other third party where such disclosure is required by law; (j) use any robot, spider, data scraping or content extraction tool or similar mechanism with respect to the Solution or Documentation; (k) upload malicious code, files, scripts, agents or programs to the Solution or online infrastructure; (l) use the Solution or Services in violation of third party rights or applicable laws and regulations; (m) infiltrate, hack, or attempt to circumvent or interfere with any authentication or security measures of the Solution or online infrastructure; or (n) attempt to extract, compile, aggregate, index or reconstruct a database of vulnerabilities, a threat or application security database, or to create any substitute for, or competing compilation of, the foregoing or any Checkmarx Solution.
6. Usage Verification. Customer shall ensure that the use of the Solution by Customer, its Affiliates and Authorized Contractors complies with this Agreement and does not exceed the number and type of licenses purchased. Upon Checkmarx’s written request, Customer shall provide written certification of compliance, signed by an authorized representative. Additionally, Customer shall, upon request, provide records reasonably necessary to verify actual usage. If Checkmarx determines that the actual usage exceeds the purchased quantities, Customer shall promptly purchase additional licenses to cover the excess usage. Any additional Fees will be calculated from the date the excess usage commenced and invoiced for the remainder of the then-current Subscription Term.
Support and Additional Services. This Section applies when Customer has purchased Services to be performed by Checkmarx, including Solution Support.
1. Maintenance and Support. If Customer has purchased a Solution subscription or Software maintenance subscription, Checkmarx will provide Support during the Subscription Term in accordance with the support SLA located at https://www.checkmarx.com/legal/terms and the level of support purchased.
2. Uptime and Hosting. When provided in a SaaS delivery model or hosted by Checkmarx, the Solutions will be provided in accordance with the Cloud Services SLA located at https://www.checkmarx.com/legal/terms. If Customer has purchased Hosting Services from Checkmarx as set out in a separate hosting Quote, Checkmarx shall host, maintain, and manage the licensed Checkmarx Software during the Subscription Term in accordance with the hosting Quote.
3. Managed Services. All managed services orders require a statement of work executed by the Parties that references this Agreement and that defines the managed services to be provided by Checkmarx (a “Statement of Work”). If purchased by Customer, Checkmarx will perform the managed services in accordance with the Statement of Work and this Agreement.
4. Professional Services. All professional services shall be defined in a scope of work, Checkmarx professional services catalog, or the Quote (a “Work Description”). If purchased by Customer, Checkmarx will perform the professional services in accordance with the Work Description and this Agreement. Unless specified in the Work Description, the professional services must be scheduled with reasonable advance notice and are subject to availability. After the scheduling of the professional services has been agreed by Checkmarx, the professional services may not be unilaterally canceled or rescheduled by Customer and shall be deemed delivered on the agreed delivery date. Checkmarx shall undertake reasonable efforts to accommodate good faith rescheduling requests made by Customer with reasonable advance notice.
5. Provision of Services. One (1) service day equals eight (8) hours. Unless otherwise specified in the Work Description, any service hours or credits purchased must be used within twelve (12) months of purchase; thereafter, any unused hours expire and are deemed delivered. Professional and managed services are provided during normal business hours unless otherwise agreed in writing. All services are performed remotely unless otherwise agreed by the Parties in writing.
6. Change Orders. Changes to any agreed scope of work require a written change order signed by the Parties prior to implementation of the changes. Change orders shall not be effective until mutually agreed by the Parties and executed by an authorized representative of each Party.
7. Customer Responsibilities. Checkmarx’s ability to provide Services to Customer in a timely manner depends on Customer’s reasonable cooperation. Customer agrees to provide Checkmarx with reasonable cooperation and access to Customer’s materials, to the extent such access is necessary for the performance of the Services. Checkmarx shall not be responsible for delays or issues caused by Customer’s failure to provide reasonable cooperation and assistance.
Data Handling. This Section applies when Checkmarx handles Customer data in connection with the Solutions and Services provided to Customer.
1. Customer Data. Customer hereby grants Checkmarx and its Affiliates a limited, non-exclusive license to utilize the content uploaded by Customer during use of the Solutions or Services (the “Customer Data”) to the extent necessary to provide the Solution and Services to Customer (and, if relevant, its Affiliates) and its/their users; to provide technical support and assistance to Customer; and to exercise the rights and obligations under this Agreement. As between the Parties, Customer retains all right, title and interest in the Customer Data save for the limited license grants and permissions set out in this Agreement.
2. Personal Information. To the extent that Checkmarx processes personal data on Customer’s behalf during provision of the Solution or Services, Checkmarx is acting as a Processor and shall handle the personal information in accordance with Checkmarx’s Data Processing Agreement located at https://www.checkmarx.com/legal/terms.
3. Analytics and Service Data. Checkmarx and its Affiliates may collect, analyze, process and utilize the usage analytics, metadata, diagnostic information and other technical data generated during Customer’s use of the Solution and Services, including but not limited to the evaluative signals that Customer or its users generate through the use of the Solution such as actions by which a user accepts, rejects, scores, ranks or otherwise reacts to the output generated by the Solution (collectively, the “Usage Data”) for statistical, benchmarking, and product improvement purposes. Checkmarx and its Affiliates may additionally generate and publish statistical and benchmarking insights derived from the Usage Data as long as the data has been aggregated, anonymized, de-identified, or otherwise rendered not reasonably associated with or linked to an identifiable individual or to Customer.
Artificial Intelligence. This Section applies where the Solution includes AI Features.
1. No Training on Customer Data. Checkmarx will not, and will not permit its Affiliates, subcontractors, or third-party artificial intelligence or machine learning providers, to use Customer Data to train, enhance or improve any artificial intelligence, machine learning, large language model, foundation model, or similar model. Checkmarx will ensure that any third-party provider engaged in connection with AI-enabled functionality is contractually bound by data use restrictions that are no less protective of Customer Data than those set forth herein.
2. Model Providers. To provide the AI Features to Customer, Checkmarx utilizes the third-party service providers set out in its current sub-processor list located at https://checkmarx.com/legal/terms. Checkmarx will give Customer no less than fourteen (14) days advance notice before adding, substituting or removing an AI model provider that is expected to materially affect the AI Features.
3. AI Output. As between the Parties, Customer owns the AI Output generated from its Customer Data, except to the extent it contains Confidential Information or intellectual property of Checkmarx, its Affiliates or licensors, or any summary, restatement or other derivative thereof (the “Checkmarx Content“). Where Customer incorporates such AI Output into its own software code during the Subscription Term to implement code fixes suggested by the Solution, Checkmarx grants Customer a perpetual, non-exclusive, royalty-free license to use, reproduce, modify and distribute the Checkmarx Content solely to the extent it is part of the AI Output incorporated into Customer’s code. Customer acknowledges that AI Output is probabilistic, may be inaccurate or incomplete, is not necessarily unique to Customer, and does not constitute professional advice from Checkmarx, its Affiliates or licensors.
4. Human Oversight. Customer is responsible to review and validate AI Output before relying on or incorporating it and is responsible for all decisions regarding whether and how to use the AI Output. Customer shall not put the AI Features to any prohibited or high-risk use as defined under applicable law and shall not otherwise use the AI Features or AI Output in a manner prohibited under applicable law.
5. AI Governance Practices. Checkmarx maintains an artificial intelligence governance program aligned to recognized industry frameworks and addressing transparency, data governance, risk management, human oversight and accountability, and will, on Customer’s reasonable request, provide documentation to Customer describing the nature, purpose and material limitations of the AI Features.
Confidentiality. This Section applies when Confidential Information (defined below) is exchanged between the Parties in connection with their performance of this Agreement:
1. Definitions. The term “Confidential Information” means any non-public or proprietary information disclosed by one party (“Discloser”) to the other (“Recipient”) that is designated as confidential or that a reasonable person would understand to be confidential. This includes, without limitation, business strategies, marketing or business plans, finances, forecasts, trade secrets, know-how, software designs, logic or code, proprietary algorithms or databases, developments, inventions, system architecture, and pricing information.
2. Restrictions on Use and Disclosure. All Confidential Information received pursuant to this Agreement: (a) shall not be used by the Recipient except in connection with the execution of their rights, obligations and undertakings related to this Agreement (the “Purpose”); (b) may only be disclosed to those employees, contractors, consultants and service providers of the Recipient or its Affiliates (the “Representatives”) who have a need to know in connection with the Purpose and are subject to confidentiality obligations at least as restrictive as this Agreement; and (c) shall be held in confidence, with the Recipient exercising the same degree of care and protection that it takes to safeguard its own Confidential Information but no less than reasonable care.
3. Exclusions. The confidentiality obligations under this Agreement shall not apply to any information which a party can demonstrate through written records: (a) is already in the public domain through no breach of this Agreement; (b) was lawfully in a Recipient’s possession prior to receipt from the Discloser; (c) is received by the Recipient independently from a third party free to lawfully disclose such information to Recipient; or (d) is independently developed by the Recipient without use of the Discloser’s Confidential Information. Confidential Information may be disclosed pursuant to a legal requirement under a valid governmental, judicial or administrative order, provided, however, that the Recipient shall, where permitted, provide prompt prior written notice thereof to the Discloser to enable the Discloser to seek a protective order or otherwise prevent such disclosure, and in any event the disclosure shall be limited to the extent expressly required.
Title and Ownership; Proprietary Notices.
1. Proprietary Rights. The Solutions (including any Checkmarx Content and other proprietary components of the Solutions) and Documentation are licensed, not sold, and except for the rights set out in this Agreement, Checkmarx, its Affiliates and licensors retain all right, title, and interest in and to the aforementioned items and all copies, improvements, enhancements, modifications, and derivative works thereof. All express or implied rights to the aforementioned items not specifically granted herein are expressly reserved to Checkmarx, its Affiliates and licensors. The Software licenses granted in this Agreement do not grant any rights to the source code of the Software.
2. Proprietary Notices. Customer acknowledges that Checkmarx, its Affiliates and licensors own the copyright and other intellectual property rights in the Solutions (including any Checkmarx Content and other proprietary components of the Solution) and Documentation. Customer will not remove the copyright, trademark and other proprietary notices contained on or in the aforementioned items and any materials provided by Checkmarx under this Agreement.
3. Feedback. To the extent Customer or its users provide Checkmarx with any feedback, suggestion, idea, enhancement request or recommendation relating to the Solutions (“Feedback”), Customer hereby grants Checkmarx and its Affiliates a perpetual, irrevocable, worldwide, sub-licensable, royalty-free license to use, modify, create derivative works, distribute, and otherwise exploit the Feedback provided by Customer or its users without further compensation to Customer.
Ordering and Payment; Acceptance.
1. Ordering. Customer and its Affiliates may request the purchase of Solution licenses and Service subscriptions by submitting written orders to Checkmarx or an authorized partner subject to a valid Quote. All such orders are subject to approval by Checkmarx, and once approved, are firm and non-cancelable by Customer. This Agreement applies to all approved orders submitted by Customer and its Affiliates. Any Affiliate submitting an order agrees to be bound by the obligations in this Agreement. The Services and Solutions will be delivered by electronic means and are deemed accepted on the Commencement Date.
2. Credits. The following terms apply when Customer has purchased access to features or functionality that is measured on a consumption basis:
  1. Certain features or functionality of the Solutions may be made available on a consumption basis through the use of credits (“Credits“). The quantity of Credits purchased by Customer, and the activities or features that consume Credits, will be specified in the applicable Quote or Documentation. Credits are deducted from Customer’s available balance upon Customer’s use of the applicable functionality at the applicable consumption rates as set forth in the applicable Quote or License Type, or if not specified therein, the Documentation.
  2. Credits represent a pre-purchased contractual right to access or utilize designated functionality of the Solution and do not constitute currency, legal tender, stored value, electronic money, property, or a monetary account balance. Access to functionality that requires Credits may be suspended, limited, or unavailable when Customer’s available Credits have been exhausted, unless otherwise agreed in writing. Unused Credits will expire as specified in the applicable Quote or License Type, or if not specified therein, the Documentation. Checkmarx will make Customer’s available Credit balance reasonably accessible through the Solution or through other means designated by Checkmarx.
3. Payment. All license grants and Service obligations of Checkmarx are subject to Customer’s timely payment of the Fees. For orders placed with an authorized partner, the payment terms will be defined in the agreement between Customer and the authorized partner. For orders placed directly with Checkmarx:
  1. Checkmarx shall invoice Customer for Fees plus applicable taxes in the currency specified in the Quote. All invoices are due thirty (30) days from the invoice date unless an earlier payment term is set out in the Quote. All Fees are non-refundable except as provided in Sections 10.2(c) and 11.2 and are billed upfront and in advance unless otherwise specified in the Quote, Statement of Work or Work Description. Checkmarx may charge interest on any overdue Fees that are not subject to good faith dispute as permitted by applicable law.
  2. Customer is responsible for all taxes and duties arising from the Fees, the Services, or Customer’s use of the Solution under this Agreement. If Customer is required to withhold any taxes from the Fees, Customer shall pay Checkmarx the additional amount necessary to ensure Checkmarx receives the full Fees as if no withholding occurred.
Warranties.
1. Limited Warranties. Checkmarx warrants to Customer that: (a) the SaaS Solutions shall substantially conform to the functional specifications set out in the Documentation during the Subscription Term; (b) any On Premises Solutions will substantially conform to the functional specifications set out in the Documentation for thirty (30) days after initial delivery; and (c) any Services will be performed in a professional and workmanlike manner.
2. Remedies. If Customer identifies a breach of the above warranties, it must promptly provide Checkmarx with written notice detailing the non-conformity. Checkmarx will promptly, as its sole obligation and as Customer’s exclusive remedy: (a) provide a workaround or correction within a commercially reasonable time; (b) re-perform the service; or (c) if Checkmarx determines that it is unable to remedy the non-conformity, terminate the affected subscription and refund (or for purchases made via an authorized partner, assist in coordinating a refund of) any pre-paid, unused Fees.
3. Warranty Limitations. The limited warranties set out above shall not apply to the extent the Solution or Service: (a) is not used in accordance with the Documentation; (b) has been modified without Checkmarx’s express authorization; (c) fails to function due to a malfunction of Customer’s equipment or IT infrastructure; or (d) fails to function due to third-party software and/or hardware that is not provided or approved by Checkmarx.
4. Disclaimer of Warranties. WITH THE SOLE EXCEPTION OF THE LIMITED WARRANTIES PROVIDED IN SECTION 10.1, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL SOLUTIONS, SERVICES AND DOCUMENTATION ARE PROVIDED ON AN “AS IS” BASIS AND CHECKMARX DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. CHECKMARX EXPRESSLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. CHECKMARX DOES NOT REPRESENT OR WARRANT THAT THE SOLUTION OR DOCUMENTATION WILL MEET THE REQUIREMENTS OF CUSTOMER, THAT THE OPERATION OF THE SOLUTION OR SERVICES WILL BE UNINTERRUPTED AND/OR ERROR FREE, OR THAT THE SOLUTIONS OR SERVICES WILL DETECT OR RENDER CUSTOMER’S CODE FREE FROM ALL ERRORS, VULNERABILITIES, OR INTRUSIONS.
5. Exclusive Remedy. THIS SECTION 10 STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND THE ENTIRE LIABILITY OF CHECKMARX FOR BREACH OF WARRANTY.
Infringement Indemnification.
1. Indemnification. Checkmarx will, subject to Section 11.3, defend at its expense any third-party claim against Customer alleging that the Solutions infringe any validly registered intellectual property right, and Checkmarx shall pay those costs and damages finally awarded against Customer or those costs and damages which have been agreed by Checkmarx in a settlement of such action. Checkmarx’s indemnification obligations require Customer to: (a) promptly notify Checkmarx in writing of the claim; (b) grant Checkmarx sole control of the defense and settlement; (c) cooperate in such defense; and (d) refrain from making or accepting any settlement without Checkmarx’s prior written approval.
2. Remedies. In the event the Solution is determined to, or is believed by Checkmarx to, become the subject of an infringement claim, Checkmarx may, at its sole discretion: (a) modify the Solution so that it is non-infringing; (b) obtain a license for Customer to continue to use the Solution; or, if the foregoing options are not commercially feasible, terminate the license for the allegedly infringing Solution, require Customer to return or destroy it, and provide (or coordinate) a prorated refund of fees paid for the remaining Subscription Term.
3. Exclusions. Checkmarx has no liability for claims resulting from: (a) use of the Solution with any items not provided by Checkmarx, where infringement would not have occurred but for such combination; (b) modifications to the Solution by anyone other than Checkmarx, where infringement would not have occurred but for such modification; or (c) use of the Solution after a non-infringing version has been provided by Checkmarx.
4. No Additional Liability. THIS SECTION 11 STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND THE ENTIRE LIABILITY OF CHECKMARX WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
Limitation of Liability. EXCEPT FOR LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED AS A MATTER OF LAW, CHECKMARX AND ITS AFFILIATES SHALL NOT BE LIABLE FOR ANY LOST PROFITS, LOST REVENUE, LOSS OF USE, LOSS OR DAMAGE TO DATA, REMEDIATION COSTS, LOSS OF GOODWILL, OR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, REGARDLESS OF LEGAL THEORY, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. EXCEPT FOR LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED AS A MATTER OF LAW, THE MAXIMUM AGGREGATE LIABILITY OF CHECKMARX AND ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID TO CHECKMARX UNDER THIS AGREEMENT DURING THE PREVIOUS TWELVE (12) MONTHS PRECEDING THE FIRST EVENT GIVING RISE TO A CLAIM.
Term and Termination.
1. Term. The term of this Agreement will begin on the Effective Date and will continue until all active Subscription Terms have expired unless this Agreement is earlier terminated in accordance with this Agreement or extended by written agreement of the Parties.
2. Termination. Either Party may terminate this Agreement: (a) with written notice if the other Party materially breaches this Agreement and fails to cure the breach within thirty (30) days of receiving written notice; (b) if the other Party becomes subject to bankruptcy, insolvency, or similar proceedings that are not dismissed within sixty (60) days; or (c) immediately, with written notice, if performance under this Agreement would result in a material and incurable violation of applicable law. This Agreement will also terminate automatically in the event of a breach of Section 14.1.
3. Effect of Termination. Upon termination of this Agreement: (a) all licenses and rights granted to Customer under this Agreement shall immediately terminate, and Customer shall promptly cease all use of the Solution; and (b) Customer shall promptly delete all unlicensed copies of the Solution and Documentation. Checkmarx shall make, upon Customer’s written request, Customer Data available for export by Customer in Checkmarx’s then-standard format for a period of thirty (30) days following the effective date of termination or expiration, after which Customer Data will be deleted in accordance with Checkmarx’s data retention policy.
4. Survival of Certain Provisions. The Parties’ rights and obligations contained in Sections 5.3 (“Analytics and Service Data”); 7 (“Confidentiality”); 8 (“Title and Ownership; Proprietary Notices”); 10.4 (“Disclaimer of Warranties”); 12 (“Limitation of Liability”); 13.3 (“Effect of Termination”); 15 (“Governing Law and Dispute Resolution”); and 16 (“General Provisions”); as well as any obligations to make payments of Fees or other amounts accrued or due hereunder prior to termination, shall survive any termination or expiration of this Agreement.
Compliance and Regulatory.
1. Export Law. To the extent consistent with applicable local law, Customer agrees to comply with applicable anti-corruption, export control, and financial sanctions laws in connection with the Solution, Services, and Documentation (collectively, “the Products”), including, but not limited to, the United States Export Administration Regulations, 15 CFR 730 et seq (“EAR”) and the United States Foreign Assets Control Regulations, 31 CFR 500 et seq (“OFAC Regulations”) (collectively “Trade Controls”). Customer represents and warrants that it is not, and that, absent an appropriate license obtained from the appropriate government authority, it will not export, re-export or transfer in-country to, or permit access to the Products by: (1) any party that is a citizen of, ordinarily resident in, organized under the laws of, or owned or controlled by the government of, any country or region to which the EAR prohibits exports of EAR99 items without a license (see 15 C.F.R. 746) or with which Checkmarx or its financial institutions prohibit dealings as a matter of policy based on a variety of legal and commercial risks (currently Cuba, Iran, Lebanon, Libya, North Korea, Syria, Belarus, Russia and the Covered Regions of Ukraine); or (2) any party or end use subject to license requirements imposed by Trade Controls, including but not limited to parties enumerated on, or directly or indirectly owned 50 percent or more by parties enumerated on, the Specially Designated Nationals and Blocked Persons list administered by the United States Department of Treasury, any party enumerated on the Entity List or subject to a Denial Order maintained by the United States Department of Commerce, any party or end use otherwise described in Parts 744 or 746 of the EAR (15 CFR 744-746), and any party acting on behalf of any such party.
2. Anti-Corruption. Each Party shall, and shall require that its officers, employees, and agents, in connection with their rights and undertakings relating to this Agreement: (a) comply with all applicable anti-corruption and anti-bribery laws, including but not limited to the U.S. Foreign Corrupt Practices Act of 1977 and the U.K. Bribery Act 2010, each as amended and including any rules or regulations thereunder; (b) not directly or indirectly offer, promise, or give any person working for or engaged by the other party a financial or other advantage to induce that person to perform improperly a relevant function or activity or reward that person for improper performance of a relevant function or activity; and (c) not directly or indirectly request, agree to receive, or accept any financial or other advantage as an inducement or reward for improper performance of a relevant function or activity in connection with this Agreement.
3. Compliance with Laws. Customer shall comply with all relevant laws and regulations applicable to its use of the Checkmarx Solutions and Services. Customer is solely responsible for determining whether the use of the Solutions or Services by Customer and its end users is appropriate and permitted by relevant laws in the jurisdiction(s) where such Solutions or Services originate or will be accessed and used.
4. United States Government Rights in Commercial Off-the-Shelf Software. This Section 14.4 applies when Customer is an agency, department or instrumentality of the United States federal government, or is acquiring the Solutions or Documentation on behalf of, or for delivery to, such an entity as a prime contractor or subcontractor. The Solutions and Documentation constitute “commercial computer software,” and “commercial computer software documentation” and “technical data” as defined in FAR Sections 12.211 and 12.212 (and, if applicable, DFARS §227.7202). Consistent with the applicable provisions of the applicable federal acquisition regulations, including but not limited to 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Solutions and Documentation are being licensed to U.S. Government customers only as commercial items and pursuant solely to the terms and conditions herein, and all rights not expressly granted in this Agreement are hereby reserved by Checkmarx, its Affiliates and licensors.
Governing Law and Dispute Resolution.
1. Governing Law. Unless otherwise designated in a Local Country Addendum, this Agreement shall be governed by and interpreted in accordance with the laws of the State of New York, United States of America.
2. Dispute Resolution. In the event of any controversy or claim arising out of or relating to this Agreement, the Parties shall consult and negotiate with each other and attempt to reach a solution satisfactory to both Parties. If the Parties do not reach a settlement within sixty (60) days, any unresolved controversy or claim arising out of or relating to this Agreement shall be resolved by binding arbitration conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and administered by the AAA, unless otherwise designated in a Local Country Addendum. The arbitration shall be conducted in the English language in New York, New York, unless otherwise agreed by the Parties.
3. Litigation Rights. Notwithstanding any other provision of this Agreement, and without waiving any other remedy hereunder: (a) either Party may seek relief from a court of competent jurisdiction to protect its Confidential Information or intellectual property rights; and (b) Checkmarx may seek relief from a court of competent jurisdiction to collect Fees due hereunder.
General Provisions.
1. Assignment. This Agreement may not be assigned, delegated, or transferred by Customer without Checkmarx’s written consent, and any attempt to take such action shall be void and without effect. Checkmarx may assign this Agreement, or any rights or obligations found therein, including but not limited to its Affiliates, or to an entity which purchases all or substantially all of its assets, or acquires control of Checkmarx by reason of a merger or acquisition, sale of stock, or otherwise.
2. No Waiver. The failure of either Party to enforce any provision of this Agreement shall not be interpreted to be a waiver of such provisions or of the right of such Party to enforce each and every such provision.
3. Third-Party Integrations. Checkmarx may make available optional add-ons or integrations intended to enable the Solutions to access, integrate with, or be interoperable with other third-party platforms, products or services (a “Third-Party Integration”). All use of the Third-Party Integrations by Customer is at Customer’s own risk, and Checkmarx does not guarantee the continued availability of the Third-Party Integration, which Checkmarx may discontinue at its discretion. Any use by Customer of the Third-Party Integrations, and any exchange of data between Customer and any third-party provider, is solely between Customer and the applicable third-party provider. Checkmarx does not warrant or support Third-party Integrations, and Checkmarx is not responsible for any disclosure, modification or deletion of Customer Data by the Third-Party Integrations or third-party providers.
4. Optional Features. From time to time, Checkmarx may make available additional optional features or services (“Optional Features”) subject to separate terms and conditions that must be accepted as a precondition to their use. By electing to activate or use any Optional Features, Customer agrees to the terms and conditions presented at the time of activation or use, which shall be incorporated by reference into this Agreement and shall become binding upon Customer’s acceptance.
5. Notices. All notices of material breach, termination, and indemnification claims hereunder shall be by traceable express courier service or certified or registered mail, return receipt requested, sent to the headquarters address of the receiving party, and shall be deemed given on the earlier of (a) actual receipt by the recipient; or (b) five (5) business days after mailing. Notices to Checkmarx shall be sent to the attention of: General Counsel, with a copy to [email protected]. All other notices or demands may be sent via email to: (1) as to Checkmarx, [email protected], and (2) as to Customer, the point of contact designated in the Quote. Such notices are deemed given on the day sent if sent before 5:00 p.m. in the recipient’s local time on a business day, and otherwise on the next business day.
6. Force Majeure. Except for a Party’s payment obligations, neither Party shall be held responsible for any delay or failure in performance under this Agreement to the extent such delay or failure is caused by fire, flood, strike, acts of civil, governmental or military authority, act of God, labor conditions, earthquakes, or any other cause beyond its control and without the fault or negligence of the delayed or nonperforming Party. The Party affected by such force majeure event shall take all reasonable actions to minimize the consequences of the event.
7. Signatures. Each Party warrants that: (i) its signatory is duly authorized to execute and bind it to this Agreement; and (ii) any electronic signatures utilized to execute this Agreement shall have the same legal effect and validity as handwritten signatures. Neither Party shall challenge the validity or enforceability of this Agreement solely due to the use of electronic signatures.
8. Partial Invalidation. If any provision of this Agreement shall be held by law or determined by a tribunal of competent jurisdiction to be unenforceable, the unenforceable provision shall be severed, and the remaining provisions of this Agreement shall remain in full force and effect. In such an event, Checkmarx and Customer agree to negotiate in good faith a substitute provision that most nearly reflects the intent of the severed provision.
9. Entire Agreement. This Agreement, including any Exhibits, Quotes and linked online terms incorporated herein by reference, constitutes the entire agreement between Checkmarx and Customer regarding the Solution, Services and Documentation. In the event a Local Country Addendum is applicable to Customer, such addendum is incorporated herein by reference and made a part of this Agreement. In the event of a contradiction or discrepancy between the terms of a Local Country Addendum and this Agreement, the terms of the Local Country Addendum shall prevail. Customer acknowledges that it is not entering into this Agreement on the basis of, and has not relied on, any representations not expressly contained in this Agreement. This Agreement shall prevail over, and Checkmarx specifically objects to, any additional or conflicting provisions in any purchase order, acceptance notice, or other document issued by Customer, which shall be void and of no effect. This Agreement may only be modified or supplemented by a written document executed by an authorized representative of each Party.
10. Publicity. Checkmarx may mention Customer as a current customer on Checkmarx’s website(s) and in customer lists. If approved in advance by Customer in writing, Checkmarx shall be permitted to: (a) issue a press release indicating that Customer has purchased Checkmarx Software or Services; (b) publish a case study based on Customer’s use of the Checkmarx Software or Services; and/or (c) use Customer as a reference customer.
11. No Third-Party Beneficiaries. This Agreement is for the sole benefit of Checkmarx, Customer and Customer’s Affiliates. Nothing in this Agreement, express or implied, is intended to confer upon any other person or entity any right, benefit or remedy, or to entitle any other person or entity to make any claim or assert any right under this Agreement. As between Customer and its Affiliates, only Customer may assert claims arising out of or relating to this Agreement.
12. Relationship of Parties. The Parties hereto are independent contractors. Nothing shall create a principal-agent, partner, or other relationship between the Parties for any purpose or in any sense whatsoever or create any form of joint enterprise whatsoever between the Parties.
13. Subcontracting. Checkmarx may subcontract a portion of the Services to a third-party contractor provided that Checkmarx remains responsible for compliance of any such subcontractor with this Agreement and for its overall performance under this Agreement.
14. Contracting Entity. For Customers in the United States of America or Canada, the Checkmarx contracting entity is defined as Checkmarx, Inc. For Customers outside the United States of America or Canada, the Checkmarx contracting entity is Checkmarx Ltd., unless a different Checkmarx contracting entity is specified in the Quote or designated in a Local Country Addendum.