CHECKMARX TERMS OF SERVICE
Checkmarx Terms Of Service
PLEASE READ THESE TERMS OF SERVICE (THE “AGREEMENT”) CAREFULLY BEFORE ACCESSING OR USING THE SOFTWARE OR SERVICES. THIS AGREEMENT, REPRESENTS A BINDING LEGAL AGREEMENT BETWEEN YOU AS THE INDIVIDUAL THAT WILL BE UTILIZING THE SOFTWARE (“YOU”, “YOUR”, “USERS”) AND THE CHECKMARX ENTITY IDENTIFIED BELOW (“CHECKMARX”).
IF YOU ARE ACCESSING OR USING THE SOFTWARE, 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, YOU HEREBY AGREE TO THIS AGREEMENT.
1. Definitions.
1.1. “Affiliate” means, with respect to a Party, 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.
1.2. “Commencement Date” means, the date that the Software is first made available to You.
1.3. “Documentation” means the current Software documentation located at https://www.checkmarx.com/documentation.
1.4. “Hosting Services” means Checkmarx’s provision of access to the Software by way of Internet hosting services.
1.5. “License Type” means the current Software license type definitions and restrictions located at https://checkmarx.com/legal/codebashing-license-types-and-restrictions/?.
1.6. “Local Country Addendum” means, if applicable to You, the current additional country-specific terms mentioned in Exhibit A.
1.7. “SaaS” means software-as-a-service, a software licensing and delivery model in which software is licensed on a subscription basis and is centrally hosted.
1.8. “Software” means the object code form of Checkmarx’s SaaS Codebashing Platform, and all Software updates and maintenance releases thereof.
2. Subscription Term. The duration of the Software license subscription under this Agreement will begin on the Commencement Date and will terminate on October 30th, 2024 (the “Subscription Term”).
3. License Grants and Restrictions.
3.1. Licenses and Usage Rights. Subject to this Agreement, Checkmarx grants You a limited, non-exclusive, non-transferable, non-sublicensable license, during the Subscription Term: (a) to access and use the Software and Documentation for internal non-commercial purposes only, subject to the License Type restrictions.
3.2. Usage Restrictions. You may not, and may not permit others to: (a) use the Software in excess of the License Type restrictions or quantities purchased; (b) attempt to access the Software by unauthorized means or circumvent any License Type limitations or usage restrictions; (c) reverse engineer, decompile, disassemble, modify or create derivative works of the Software or Documentation; (d) attempt to derive the source code of the Software; (e) reproduce, publish, distribute, transfer, publicly display, resell, rent, lease, sublicense, loan, or lend the Software or Documentation to any third party; (f) use the Software to provide application security services to a third party, or make the Software available for use by a third party; (g) use the Software 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 content from, or output of, the Software, including but not limited to benchmarking results; (j) use any robot, spider, data scraping or content extraction tool or similar mechanism with respect to the Software or Documentation; (k); upload malicious code, files scripts, agents or programs to the Software; (l) use the Software in violation of third party rights or applicable laws and regulations; or (m) infiltrate, hack, or attempt to circumvent or interfere with any authentication or security measures of the Software.
4. User Data. This Section applies when Checkmarx handles Your data in connection with the Software provided to You. You hereby grant Checkmarx and its Affiliates a limited, non-exclusive license to use the data uploaded by You during use of the Software (the “User Data”) as necessary to provide the Software to You, to provide technical support and assistance to You, to monitor the integrity and functioning of the Software, and to perform and administer the Agreement. Without limiting the foregoing, additional rights in specific types of User Data are set out in the following subsections:
4.1. Personal Information. In the event Checkmarx processes the personal information of any individual subject to General Data Protection Regulation (EU) 2016/679 (the “GDPR”) during provision of the Software, Checkmarx is acting as a Controller and shall handle the personal information in accordance with the requirements of the GDPR and the Checkmarx Privacy Policy located at https://checkmarx.com/.
4.2. Analytics and Service Data. Checkmarx and its Affiliates may process and use the usage analytics and metadata generated during Your use of the Software for statistical purposes, product improvement and other internal business purposes. Checkmarx and its Affiliates may process and use any other data generated during Your use of the Software for statistical and product improvement purposes as long as the data does not contain any of Your personal information, and 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 You.
5. Title and Ownership; Proprietary Notices.
5.1 Proprietary Rights. The Software and Documentation are licensed, not sold, and Checkmarx, its Affiliates and licensors retain all right, title, and interest in and to the Software and Documentation, and all copies, improvements, enhancements, modifications, and derivative works of the Software and Documentation, including, without limitation, all patent, copyright, trade secret, trademarks, and other intellectual property rights. Any Software licenses granted in this Agreement do not grant any rights whatsoever to the source code of the Software. All express or implied rights to the Software and Documentation not specifically granted herein are expressly reserved to Checkmarx, its Affiliates and licensors.
5.2. Proprietary Notices. You acknowledges that Checkmarx, its Affiliates and licensors own the copyright and other intellectual property rights in the Software and Documentation. You will not remove the copyright, trademark and other proprietary notices contained on or in the Software or Documentation and any materials provided by Checkmarx under this Agreement.
5.3. Feedback. In the event You provide Checkmarx with feedback regarding the operation, functionality or use of Checkmarx’s offerings You hereby grant 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 without further compensation to You.
6. Disclaimer of Warranties. TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL SOFTWAREAND 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 SOFTWARE OR DOCUMENTATION WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED AND/OR ERROR FREE.
7. 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 OR OBLIGATED IN ANY MANNER FOR ANY LOST PROFITS, LOST REVENUE, LOSS OF USE, LOSS OR DAMAGE TO DATA, REMEDIATION COSTS, LOSS OF GOODWILL, OR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
8. Term and Termination.
8.1. Term. The term of this Agreement will begin on the Commencement Date and will terminate at the end of the Subscription Term unless this Agreement is earlier terminated in accordance with this Agreement.
8.2. Termination. Checkmarx may terminate this Agreement immediately with or without any cause during the Subscription Term.
8.3. Effect of Termination. Upon termination of this Agreement: (a) all licenses and rights granted to You under this Agreement shall immediately terminate; and (b) You shall promptly delete all unlicensed copies of the Documentation.
8.4. Survival of Certain Provisions. The Parties’ rights and obligations contained in Sections 4.2 (“Analytics and Service Data”); 5 (“Title and Ownership; Proprietary Notices”); 7 (“Limitation of Liability”); 8.3 (“Effect of Termination”); 10 (“Governing Law and Dispute Resolution”); and 11 (“General Provisions”).
9. Compliance and Regulatory.
9.1. Export Law. To the extent consistent with applicable local law, You agree to comply with applicable anti-corruption, export control, and financial sanctions laws in connection with the Software, 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”). You represent and warrant that it is not, and that, absent an appropriate license obtained from the appropriate government authority, You 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 (collectively currently Cuba, Iran, Lebanon, Libya, North Korea, Syria, the Crimea Region, and the self-proclaimed the Donetsk People’s Republic and Luhansk People’s Republic); 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 Parts 744 or 746 of the EAR (15 CFR 744-746), and any party acting on behalf of any such party.
9.2. 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 1997 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.
9.3. Compliance with Laws. You shall comply with all relevant laws and regulations applicable to its use of the Checkmarx Software and Documentation. You are solely responsible for determining whether the use of the Software by You and its end users is appropriate and permitted by relevant laws in the jurisdiction(s) where such Software originate or will be accessed and used.
9.4. United States Government Rights in Commercial Off-the-Shelf Software. The Software and Documentation constitute “commercial computer software,” and “commercial computer software documentation” and “technical data” as defined in FAR Section 12.212. 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 Software and Documentation are being licensed to U.S. Government end users only as commercial items and pursuant solely to the terms and conditions herein.
10. Governing Law and Dispute Resolution.
10.1. 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.
10.2. 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.
10.3. Litigation Rights. Notwithstanding any other provision of this Agreement, and regardless of the dispute resolution provisions and arbitration requirements set out herein, Checkmarx may, without waiving any remedy under this Agreement, seek relief from any court of competent jurisdiction to: (a) protect its confidential information or Intellectual Property Rights.
11. General Provisions.
11.1. Exclusions. The United Nations Convention Relating to a Uniform Law on the International Sale of Goods, or any similar or successor convention or law, shall not apply to this Agreement. The Parties expressly agree that the Uniform Computer Information Transactions Act shall not apply to this Agreement and, to the extent that it is applicable, the Parties agree to opt-out of its applicability pursuant to its provisions.
11.2. Assignment. This Agreement may not be assigned, delegated, or transferred by You 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.
11.3. 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.
11.4. Future Functionality. You agree that its purchase of the Software licenses is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Checkmarx regarding future functionality or features.
11.5. Notices. All notices or demands hereunder shall be by traceable express courier service or certified or registered mail, return receipt requested, sent to the address of the receiving party, and shall be deemed complete ten (10) days after mailing. Notices to Checkmarx shall be sent to the attention of: General Counsel, with a copy to [email protected].
11.6. Force Majeure. 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, 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.
11.7. Authorized Signatory. Each Party represents and warrants to the other party that its signatory is duly authorized to enter into this Agreement on behalf of its respective Party and to bind such party to the terms of this Agreement.
11.8. Electronic Signatures. The Parties agree that this Agreement may be signed via electronic signature. Whenever a Party executes an electronic signature on this Agreement, such Party represents and agrees that: (a) the Party’s electronic signature has the same validity as a handwritten signature and shall be a legally binding equivalent; (b) the Party’s electronic signature meets the requirements of an original signature as if actually signed by the Party in writing; and (c) no certification authority or other third-party verification is necessary for the enforceability of the Party’s signature. A Party who executes this Agreement by electronic signature expressly waives the use of an electronic signature as a defense to the enforcement of this Agreement, to the maximum extent permitted by applicable law.
11.9. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be an original instrument, but all of which shall constitute one and the same agreement. Signatures transmitted via electronic means shall be considered binding and deemed the same as an original written signature.
11.10. Amendment. This Agreement may only be modified or supplemented by a written document executed by an authorized representative of each Party.
11.11. Partial Invalidation. If any provision of this Agreement shall be held by law or found by a court or other 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 You agree to negotiate in good faith a substitute provision that most nearly reflects the intent of the severed provision.
11.12. Entire Agreement. This Agreement, including any Exhibits, and linked online terms incorporated herein by reference, constitutes the entire agreement between Checkmarx and You regarding the Software and Documentation. In the event a Local Country Addendum is applicable to You, such addendum is incorporated herein as Exhibit A is a part of this Agreement. In the event of a contradiction or discrepancy between the terms of a Local Country Addendum under Exhibit A and this Agreement, the terms of the Local Country Addendum shall prevail as specified in Exhibit A for such provisions. You acknowledge that You are not entering into this Agreement on the basis of, and has not relied on, any representations not expressly contained in this Agreement. The provisions of this Agreement shall prevail over, and Checkmarx specifically objects to, any additional or conflicting provisions in any document issued by You, which shall be void and of no effect.
11.13. Headings and Wording. Section and/or paragraph headings used in this Agreement are for reference purposes only and shall not be used in the interpretation hereof. No provision of this Agreement shall be construed against either Party as the drafter thereof.
11.14. Publicity. Checkmarx shall be permitted to mention You as a current customer on Checkmarx’s website(s) and in customer lists. If approved in advance by You in writing, Checkmarx shall be permitted to (a) issue a press release indicating that You are a user of Checkmarx Software or Services; (b) to publish a case study based on Your use of the Checkmarx Software or Services; and/or (c) use You as a reference customer.
11.15. No Third-Party Beneficiaries. This Agreement is entered into solely for the benefit of Checkmarx and You. No third party shall be deemed to be a beneficiary of this Agreement, and no third party shall have the right to make any claim or assert any right under this Agreement.
11.16. Relationship of Parties. The Parties hereto are independent contractors. Nothing contained herein or done in pursuance of this Agreement 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.
11.17. 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.
11.18. Contracting Entity. For Users in the United States of America or Canada, the Checkmarx contracting entity is defined as Checkmarx, Inc. For Users outside the United States of America or Canada, the Checkmarx contracting entity is Checkmarx Ltd., unless a different Checkmarx contracting entity is specified or designated in a Local Country Addendum.
| Purpose | Legal Basis |
|---|---|
|
Territory |
Applicable Provisions |
|
Germany |
Section 3.2(c) of the Agreement is hereby replaced with the following: Section 10.1 of the Agreement is hereby replaced with the following: Section 10.2 of the Agreement is hereby replaced with the following: Section 11.18 of the Agreement is hereby replaced with the following: |
|
France |
Section 3.2(c) of the Agreement is hereby replaced with the following: Sections 5.1 and 5.2 of the Agreement are hereby supplemented with the following: “5.1 Proprietary Rights. The Software and Documentation are licensed, not sold, and Checkmarx, its Affiliates and licensors retain all right, title, and interest in and to the Software and Documentation, and all copies, improvements, enhancements, modifications, and derivative works of the Software and Documentation, including, without limitation, all patent, copyright, author’s rights (“droits d’auteur”), trade secret, trademarks, and other intellectual property rights. Any Software licenses granted in this Agreement do not grant any rights whatsoever to the source code of the Software. All express or implied rights to the Software and Documentation not specifically granted herein are expressly reserved to Checkmarx, its Affiliates and licensors. 5.2. Proprietary Notices. You acknowledge that Checkmarx, its Affiliates and licensors own the copyright, author’s rights (“droits d’auteur”), and other intellectual property rights in the Software and Documentation. You will not remove the copyright, author’s rights (“droits d’auteur”), trademark and other proprietary notices contained on or in the Software or Documentation and any materials provided by Checkmarx under this Agreement.” Section 6 of the Agreement is hereby replaced with the following: “6. Disclaimer of Warranties. ALL SOFTWARE AND DOCUMENTATION ARE PROVIDED ON AN “AS IS” BASIS AND CHECKMARX DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, 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 SOFTWARE OR DOCUMENTATION WILL MEET THE REQUIREMENTS OF YOU, THAT THE OPERATION OF THE SOLUTIONS OR SERVICES WILL BE UNINTERRUPTED AND/OR ERROR FREE, OR THAT THE SOLUTIONS WILL DETECT OR RENDER YOU’S CODE FREE FROM ALL ERRORS, VULNERABILITIES, OR INTRUSIONS.” Further Section 10.1 of the Agreement is hereby replaced with the following: “10.1. Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of France.” Section 10.2 is hereby replaced by the following: Section 11.2 is hereby replaced with the following: Section 11.18 is hereby replaced by the following: |
|
Australia and New Zealand |
A new Section 6 A is hereby added to the Agreement as follows: “6.A Australian Consumer Law. Notwithstanding any other provisions in this Agreement, Checkmarx does not exclude, restrict or modify any conditions or warranties or guarantees which may be implied or imposed by Australian Consumer Law when you acquire goods and services as a Consumer. When you acquire our Solutions as a Consumer (as that term is defined in Australian Consumer Law), our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled to cancel your service contract with us. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time.” Section 10.1 of the Agreement is hereby replaced with the following: “10.1 Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of Victoria, Australia, and the Parties submit to the exclusive jurisdiction of the courts of Victoria and the Commonwealth of Australia.” Section 10.2 of the Agreement is hereby replaced with the following: “10.2 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 Rules of Arbitration of the International Chamber of Commerce (“ICC”) and administered by the ICC. The arbitration shall be conducted in the English language in Melbourne, Victoria, Australia, unless otherwise agreed by the Parties.” Section 11.18 of the Agreement is hereby replaced with the following: |
|
India |
Section 11.16 of the Agreement is hereby replaced with the following: |
|
United Kingdom and Ireland |
Section 3.2(c) of the Agreement is hereby replaced with the following: Section 4.2 of the Agreement is hereby replaced with the following: “Personal Information. In the event Checkmarx processes the personal information of any individual subject to General Data Protection Regulation (EU) 2016/679 or the UK Data Protection Act 2018 (collectively, the “GDPR”) in connection with the Software, Checkmarx is acting as a Controller and shall handle the personal information in accordance with the requirements of the GDPR and the Checkmarx Privacy Policy located at https://checkmarx.com/. Section 7 of the Agreement is amended with the addition of the following additional text: Section 10.1 of the Agreement is hereby replaced with the following: Section 10.2 of the Agreement is hereby replaced with the following: Section 11.18 of the Agreement is hereby replaced with the following: |
