Cloud Services Agreement
PLEASE READ THE TERMS AND CONDITIONS OF THIS CLOUD SERVICES AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE ACCESSING OR USING THE CLOUD SERVICES. UNLESS YOU HAVE A SEPARATE WRITTEN AGREEMENT WITH CHECKMARX GOVERNING YOUR USE OF THE CLOUD SERVICES, THIS AGREEMENT REPRESENTS A BINDING LEGAL AGREEMENT BETWEEN YOU AS THE INDIVIDUAL, THE COMPANY, OR THE LEGAL ENTITY THAT WILL BE UTILIZING THE CLOUD SERVICES (“YOU” OR “CUSTOMER”) AND THE CHECKMARX ENTITY IDENTIFIED BELOW (“CHECKMARX“).
IF YOU ARE ACCESSING OR USING THE CLOUD 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 CLOUD 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 CLOUD SERVICES, YOU HEREBY AGREE TO THIS AGREEMENT.
- THE CLOUD SERVICES.
- Provision of the Cloud Services. Subject to the terms and conditions of this Agreement and Customer’s payment of the applicable fees, Checkmarx will make the cloud-based subscription services provided by Checkmarx (the “Cloud Services”) available during the subscription term purchased by Customer (the “Subscription Term”) in accordance with the applicable Cloud Services documentation (the “Documentation“) and Cloud Services SLA.
- Right to Access and Use the Cloud Services. Subject to Customer’s payment of the applicable fees and compliance with this Agreement, Checkmarx grants Customer a non-exclusive, non-transferable, non-sublicensable right to access and use the Cloud Services during the Subscription Term for Customer’s internal business purposes in accordance with the License Types and quantities purchased by Customer, as set out in the quote issued by Checkmarx or an authorized Checkmarx reseller.
- Restrictions. Customer will not, and will not permit others to: (a) access or use the Cloud Services in excess of the License Types and quantities purchased by Customer; (b) access the Cloud Services by unauthorized means or attempt to circumvent any licensing restrictions or limitations; (c) reverse engineer, decompile, disassemble, modify or create derivative works of the Cloud Services; (d) use any robot, spider, data scraping or content extraction tool or similar mechanism with respect to the Cloud Services; (e) use the Cloud Services to provide services to a third party; (f) transfer, assign or permit the sharing of license keys, usernames, passwords or login credentials to a third party; (g) use the Cloud Services in any manner which infringes on the intellectual property rights of any third party; (h) upload malicious code, files scripts, agents or programs to the Cloud Services; (i) use the Cloud Services in violation of applicable laws and regulations; (j) use the Cloud Services for the purpose of competitive analysis, competitive benchmarking or to build a competitive product or service; or (k) infiltrate, hack, or attempt to circumvent or interfere with any authentication or security measures of the Cloud Services. Additional license restrictions may be set out in the Quote or ordering document.
- Customer Obligations. Customer is solely responsible for providing its own Internet access and computer equipment necessary to access and use the Cloud Services. Customer is responsible for maintaining the security and confidentiality of all user login information provided by Checkmarx. The Cloud Services may only be accessed by way of the interfaces and protocols provided by Checkmarx.
- Evaluation License. If Customer has been provided with an evaluation license by Checkmarx, then Customer is hereby granted a limited, personal, non-exclusive, non-transferable, non-sublicensable right to use the Cloud Services for Customer’s internal evaluation purposes, during the evaluation period authorized by Checkmarx. If no evaluation period is specified by Checkmarx, then the evaluation license is valid for fourteen (14) days from the date the Cloud Services are initially made available to Customer. All Cloud Services offered on an evaluation basis are licensed on an “AS-IS” basis without warranty of any kind, express or implied. Checkmarx does not assume any liability arising from any use of the Cloud Services for evaluation purposes. Following the expiration of the evaluation period, Customer’s continued right to access and use the Cloud Services shall be subject to payment of the applicable fees and compliance with this Agreement.
- PAYMENT TERMS.
- Ordering and Payment. All Cloud Services orders are subject to approval by Checkmarx and must Be subject to a valid Quote. For service orders placed with an authorized Checkmarx reseller, the payment terms will be defined in the agreement between Customer and the authorized reseller. For service orders placed directly with Checkmarx, payments shall be made via wire transfer in the currency invoiced by Checkmarx. All fees are due thirty (30) days from invoicing and are non-refundable and non-cancelable.
- Taxes. When Customer pays the fees directly to Checkmarx, Customer shall be responsible for the payment of all taxes and duties, however designated, which are paid or payable, based on the fees or on
Customer’s access or use of the Cloud Services. If Customer is required to withhold or deduct any amount from the fees on account of taxes, Customer shall pay Checkmarx the additional amount necessary to ensure that the net amount received by the Checkmarx after such withholding or deduction is equal to the gross amount of the fees in the absence of any such withholding or deduction.
- TITLE AND OWNERSHIP; FEEDBACK.
- Ownership. Checkmarx retains ownership of all right, title, and interest in and to all intellectual property in the Cloud Services and Documentation. All express or implied rights not specifically granted herein are expressly reserved to Checkmarx. Customer agrees not to remove the copyright, trademark and other proprietary notices contained on or in any materials provided by Checkmarx under this Agreement.
- Feedback. In the event Customer provides Checkmarx with feedback regarding possible improvements in the operation, functionality or use of the Cloud Services (“Feedback”), Customer hereby grants Checkmarx 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 Customer.
- CUSTOMER DATA.
- Customer Content. Checkmarx shall use the content uploaded by the Customer to the Cloud Services (“Customer Content”) only to provide the Cloud Services to Customer and to provide Customer support. All Customer Content: (a) will remain the sole property of Customer; (b) will only be disclosed to those employees, contractors, consultants and service providers of Checkmarx or its affiliates who have a need to know and are subject to terms of confidentiality and non-use at least as stringent as set out herein; and (c) shall be held in confidence by Checkmarx and its affiliates, exercising the same degree of care and protection that Checkmarx takes to safeguard its own confidential information but no less than reasonable care.
- Personal Information. In the event Checkmarx processes the personal information of any individual subject to General Data Protection Regulation (EU) 2016/679 in connection with the Cloud Services, Checkmarx is acting as a Processor and shall handle the personal information in accordance with the Data Processing Agreement.
- Analytics. Checkmarx may collect, analyze and use the usage analytics and metadata generated during Customer’s use of the Cloud Services (“Usage Data”) for statistical purposes as long as the Usage Data does not contain any Customer Content or personal information of Customer, and as long as the Usage Data has been aggregated, anonymized, de-identified, or otherwise rendered not reasonably associated with or linked to an identifiable individual or to Customer.
- LIMITED WARRANTY.
- Service Warranty. Checkmarx warrants to Customer that, during the Subscription Term, the Cloud Services will operate in substantial conformity with the functional specifications set out in the
Documentation. If Customer provides Checkmarx with written notice of non-compliance with this warranty, Checkmarx shall, as Customer’s sole and exclusive remedy, re-perform the Cloud Services, and if such re-performance does not remediate the non-conformity, Checkmarx shall provide Customer with (or, for purchases made through an authorized Checkmarx reseller, assist Customer in coordinating) a prorated refund of the prorated fees paid by Customer applicable to the non-conforming Cloud Services.
- Warranty Limitations. The limited warranty set forth in Section 5.1 shall not apply to the extent the Cloud Services: (a) are not used in accordance with this Agreement or the Documentation; (b) fail to function due to a malfunction of Customer’s equipment or IT infrastructure; or (c) fail to function due to third party software and/or hardware that is not provided or approved by Checkmarx.
- Disclaimer of Warranties. WITH THE SOLE EXCEPTION OF THE LIMITED WARRANTY PROVIDED IN SECTION 5.1, THE CLOUD SERVICES, INCLUDING ANY OTHER SOFTWARE, SERVICES AND DOCUMENTATION SUPPLIED HEREUNDER, 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. WITHOUT LIMITING THE FOREGOING, CHECKMARX DOES NOT REPRESENT OR WARRANT THAT THE CLOUD SERVICES, OR ANY OTHER SOFTWARE, SERVICES OR DOCUMENTATION SUPPLIED HEREUNDER, WILL MEET THE REQUIREMENTS OF CUSTOMER, THAT THE CLOUD SERVICES OR ANY CUSTOMER CONTENT WILL BE SECURE OR FREE FROM LOSS OR DAMAGE, OR THAT THE OPERATION OF THE CLOUD SERVICES WILL BE UNINTERRUPTED AND/OR ERROR‑FREE. NOTHING IN THE FOREGOING RESTRICTS THE EFFECT OF WARRANTIES OR CONDITIONS WHICH MAY NOT BE EXCLUDED, RESTRICTED OR MODIFIED AS A MATTER OF LAW.
- Exclusive Remedy. THIS SECTION 5 STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND THE ENTIRE LIABILITY OF CHECKMARX FOR BREACH OF WARRANTY.
- Service Warranty. Checkmarx warrants to Customer that, during the Subscription Term, the Cloud Services will operate in substantial conformity with the functional specifications set out in the
- INFRINGEMENT INDEMNIFICATION.
- Indemnification. Checkmarx will, subject to the exclusions set out in Section 6.3, defend at its own expense any action brought against Customer by a third party to the extent that the action is based on a claim that the Cloud Services infringe any validly registered intellectual property right, and Checkmarx shall pay those costs and damages finally awarded against Customer in any such action that are specifically attributable to such claim or those costs and damages which have been agreed by Checkmarx in a monetary settlement of such action. Checkmarx’s indemnification obligations are expressly conditioned upon Customer giving Checkmarx prompt written notice of any actual or threatened claim, allowing Checkmarx sole control of the defense and all related settlement negotiations, providing full cooperation for the defense of same to Checkmarx, and not settling or negotiating a settlement of any such claim without Checkmarx’s prior written approval.
- Remedies. In the event the Cloud Services become or may become, as determined by Checkmarx, the subject of an infringement claim, Checkmarx may, at its sole discretion: (a) modify the Cloud Services so that they are non‑infringing; (b) obtain a license for Customer to continue to use the Cloud Services as provided hereunder; or, if the foregoing options are not commercially feasible, terminate the license for the allegedly infringing Cloud Service, have Customer cease use of such Cloud Service, and refund the prorated amount of fees paid by Customer for such Cloud Service, depreciated over the remaining duration of the applicable Subscription Term.
- Exclusions. Checkmarx shall have no obligation or liability for any claim of infringement based on the: (a) use of the Cloud Services in combination with other materials (hardware, software or data) not provided by Checkmarx where infringement would not have resulted but for such combination; (b) modification of the Cloud Services by anyone other than Checkmarx where infringement would not have resulted but for such modification; or (c) use of the Cloud Services after non-infringing services have been made available to Customer by Checkmarx.
- No Additional Liability. THIS SECTION 6 STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND THE
ENTIRE LIABILITY OF CHECKMARX WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
- LIMITATION OF LIABILITY.
- Limitations on Damages. 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, 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. 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 THE CLOUD SERVICES OR THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID TO CHECKMARX OR AN AUTHORIZED RESELLER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
- TERM AND TERMINATION.
- Term. The term of this Agreement will begin on the Effective Date and will continue during the Subscription Term, unless this Agreement is earlier terminated in accordance with this Agreement or extended by written agreement of Checkmarx and the Customer (each, a “Party,” collectively the “Parties”).
- Termination. Either Party may terminate this Agreement: (a) upon written notice in the event of a material breach of this Agreement by the other Party which has not been cured after the expiration of thirty (30) days from the breaching Party’s receipt of written notice of the breach; or (b) if the other Party becomes the subject of any voluntary or involuntary petition pursuant to applicable bankruptcy or insolvency laws, or a request for receivership, liquidation, or composition for the benefit of creditors and such petition, request or proceeding is not dismissed within sixty (60) days of filing.
- Effect of Termination. Upon termination of this Agreement: (a) Checkmarx will no longer be required to provide the Cloud Services and all licenses and rights granted to Customer under this Agreement shall immediately terminate; (b) Customer shall delete all downloaded components of the Cloud Services and Customer’s right to access the Cloud Services shall immediately cease; and (c) Checkmarx shall be entitled to delete any Customer Content, reports or other materials uploaded to the Cloud Services or generated in connection with Customer’s use thereof.
- Survival of Certain Provisions. The Parties’ rights and obligations contained in Sections 3 (“Title and Ownership; Feedback”) 4.3 (“Analytics”), 7.0 (“Limitation of Liability”); 8.3 (“Effect of Termination”); and 9.0 (“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.
- GENERAL PROVISIONS.
- Governing Law and Venue. For Customers located in the United Kingdom, this Agreement shall be governed by and interpreted in accordance with the laws of England and Wales, excluding its choice of law rules. For such Customers, the competent courts located in London, England shall have exclusive jurisdiction with respect to any matters rising out of this Agreement. For all other Customers, this Agreement shall be deemed to have been executed and performed in the State of New York. For such Customers, disputes arising out of or relating to this Agreement shall be governed by and interpreted in accordance with the laws of the State of New York, USA, excluding its choice of law rules and the courts in the Borough of Manhattan, New York shall have exclusive jurisdiction with respect to any matters rising out of this Agreement.
- 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.
- 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, 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.
- No Waiver. The failure of either Party to enforce at any time, or for any period of time, the provisions 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.
- Partial Invalidation. In the event that 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.
- 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.
- No Third-Party Beneficiaries. This Agreement is entered into solely for the benefit of Checkmarx and Customer. 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.
- 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].
- Publicity. Checkmarx shall be permitted to mention Customer as a current customer on Checkmarx’s website(s) and in customer lists. Subject to Customer’s written consent, Checkmarx shall be permitted to (a) issue a press release indicating that Customer has purchased Checkmarx software products or services; (b) to publish a case study based on Customer’s use of the Checkmarx products or services; and/or (c) use Customer as a reference customer.
- Force Majeure. With the exception of 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, 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 (a “Force Majeure Event”). The Party affected by such Force Majeure Event shall take all reasonable actions to minimize the consequences of the Force Majeure Event.
- Export Law. Customer acknowledges that the export, re-export or in-country transfer of the Cloud Services, and any other software, services or documentation supplied therewith, may be subject to laws and regulations promulgated by various governments, which restrict the export, re-export or in-country transfer of certain computer hardware, software media, technical data, and direct products of technical data. Customer agrees to comply with all applicable export laws and regulations as in effect from time to time (including, without limitation, all record-keeping requirements imposed thereunder), and will not export, re-export, transfer or provide access to the Cloud Services (or any software, services or documentation supplied therewith) in violation of such laws and regulations.
- Restricted Parties. Customer represents and warrants that neither it, nor any of its directors, executive officers, senior management, key employees, agents, major shareholders, nor any person having a controlling interest, nor any person Customer is permitted to allow use the Cloud Services (or any software, services or documentation supplied therewith), is a “Restricted Party,” which shall include any person or entity: (a) who is a resident of, or located or incorporated in, or an official of, owned or controlled by, or acting on behalf of the government of, a country prohibited by Checkmarx policy (based on risks including corruption, fairness and transparency of local legal process, contractual commitments imposed by financial institutions with which Checkmarx does business, and/or U.S. or Israeli embargo or trade restrictions) (a “Prohibited Territory”) (at the time of execution, Cuba, Iran, Lebanon, Libya, North Korea, Syria, and the Crimea Region), or any other region that hereinafter becomes subject to a comprehensive U.S. or Israeli trade embargo; or (b) who is on any of the following lists: the U.S. Department of Commerce Denied Person’s List, Entity List, or Unverified List; on the U.S. Department of the Treasury, Office of Foreign Assets Control’s (OFAC) list of Specially Designated Nationals and Blocked Persons; the OFAC Consolidated Non-SDN Sanctions List (including the Sectoral Sanctions Identifications List and the Foreign Sanctions Evaders List); the United States State Department’s Debarred Parties and Non-Proliferation Sanctions Lists; the United Nations Financial Sanctions Lists; the European Financial Sanctions List, or the Swiss Sanctions List maintained by the Swiss State Secretariat for Economic Affairs; or (c) persons directly or indirectly owned or controlled by, or acting on behalf of, persons identified in sub-clause (b). Customer shall not distribute, transfer, sublicense or permit access to any Checkmarx software, documentation, or services to any Restricted Party without prior, express written authorization from Checkmarx and, as appropriate, any relevant government agency. Any breach of this Section by Customer shall be deemed a material breach incapable of cure.
- United States Government Rights in Commercial Off-the-Shelf Software. The software components of the Cloud Services and relevant documentation constitutes “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 Cloud Services and the associated 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.
- Linked Items. This Agreement incorporates by reference the following items, as updated from time to time by Checkmarx: (a) the Cloud Services SLA and the Data Processing Agreement found at: https://www.checkmarx.com/legal/terms; (b) the license types and additional restrictions can be found at https://www.checkmarx.com/legal/license-types/hosted (“License Types”); and (c) the applicable Cloud Services Documentation, found at: https://www.checkmarx.com/documentation.
- Entire Agreement. This Agreement, including any linked pages and ordering documents incorporated by reference, constitute the entire agreement between Checkmarx and Customer with respect to the Cloud Services. 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. The provisions of this Agreement shall prevail over 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.
- Contracting Entity. For Customers located in the United States of America, “Checkmarx” is defined as Checkmarx, Inc. For Customers located in the United Kingdom, “Checkmarx” is defined as Checkmarx UK Ltd. For Customers located in India, “Checkmarx” is defined as Checkmarx India Technology Services Private Limited. For Customers located in Australia, “Checkmarx” is defined as Checkmarx Australia Pty Ltd. For Customers located in France, “Checkmarx” is defined as Checkmarx France S.A.S., a Société par Actions Simplifiée incorporated under the laws of France, with a share capital of 10 000 €, registered under the number 879 773 257 RCS STRASBOURG with its Registered Office at 1 rue des Arquebusiers 67000 Strasbourg, France. For other Customers, “Checkmarx” is defined as Checkmarx Ltd. unless a different Checkmarx entity is specified in the applicable ordering document.
Last Updated: May 31, 2020