Hosted Services Online Agreement
Hosted Services Terms
These Hosted Services Terms are agreed by and between the Customer (“Customer”) accessing the licensed Checkmarx Software by way of the hosted Services provided by Checkmarx and the Infrastructure Provider (defined below) and the applicable Checkmarx entity identified below (“Checkmarx”) (as defined herein, each a “Party”, and collectively the “Parties”).
BY ACCESSING OR USING THE HOSTED SERVICES, YOU AGREE TO THESE HOSTED SERVICES TERMS. IF YOU ARE ACCESSING OR USING THE HOSTED SERVICES ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU HEREBY ACCEPT THESE HOSTED SERVICES TERMS ON BEHALF OF SUCH ENTITY, YOU ACKNOWLEDGE THAT SUCH ENTITY IS LEGALLY BOUND BY THESE HOSTED SERVICES TERMS, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ACT ON BEHALF OF AND BIND SUCH ENTITY. YOU MAY NOT ACCEPT THESE HOSTED SERVICES TERMS ON BEHALF OF AN ENTITY UNLESS YOU ARE AN EMPLOYEE OR OTHER AUTHORIZED AGENT OF SUCH ENTITY WITH THE RIGHT, POWER AND AUTHORITY TO BIND AND ACT ON BEHALF OF SUCH ENTITY. IF YOU DO NOT AGREE TO THESE HOSTED SERVICES TERMS, YOU ARE NOT AUTHORIZED TO ACCESS AND/OR USE THE HOSTED SERVICES.
- DEFINITIONS AND INTERPRETATION.
- “Hosted Services” means providing access to the licensed Checkmarx software via the Internet, by way of Hosted Services to be provided on the technical infrastructure owned or operated by the Infrastructure Provider.
- “Quote” means Checkmarx’s quotation or ordering document through which the Hosted Services are ordered by Customer.
- “Fee(s)” means the fee applicable to the Hosted Services, as set out in the Quote.
- “Hosted Services Term” means the Hosted Services term set out in the Quote.
- PROVISION OF THE HOSTED SERVICES.
- Overview. In order to access and use the licensed Checkmarx software by way of the Hosted Services, Customer must: (1) possess a valid, currently active license to use the applicable software (the “Software License”); and (2) agree to the additional terms and conditions of this Hosted Services Addendum (the “Addendum”), which collectively govern Customer’s use of the licensed software through the Hosted Services.
- Provision of the Hosted Services. During the Hosted Services Term, in accordance with the terms and conditions of this Addendum and subject to Customer’s payment of the Hosted Services Fee, Checkmarx will provide Customer with access to the licensed software by way of the Hosted Services in accordance with the service level standard set forth in Annex “A.” Customer is solely responsible for providing its own Internet access and computer equipment necessary to access and use the Hosted Services.
- Infrastructure Provider. Customer acknowledges and agrees that the Hosted Services are based on technical infrastructure owned or operated by a third party infrastructure provider (the “Infrastructure Provider”). Customer is responsible for evaluating the suitability of the technical infrastructure provided by the Infrastructure Provider.
- Changes to the Hosted Services. Checkmarx may make updates or changes to the Hosted Services or technical infrastructure at any time and at Checkmarx’s discretion, as long as such changes do not result in a material degradation in the service levels set out in Annex “A” of the Addendum.
- CUSTOMER OBLIGATIONS.
- Customer Obligations. Customer shall be granted access to the Hosted Services by way of named user logins provided by Checkmarx. These logins may not be shared or re-assigned to a different individual except in the event of resignation or termination of employment of the named user. Customer is responsible for maintaining the security and confidentiality of all user login information provided by Checkmarx. The Hosted Services may only be accessed by way of the interfaces and protocols provided by Checkmarx, and may not be accessed by unauthorized means by Customer or its authorized users.
- Use of Hosted Services. Customer and its authorized users: (a) shall not use the Hosted Services, or publish, transmit, distribute or upload any content or data to/through the Hosted Services in any manner which infringes on the intellectual property rights of any third party; and (b) shall use the Hosted Services in compliance with all applicable laws and regulations.
- CUSTOMER DATA.
- Customer Content. Checkmarx shall use the content uploaded by the Customer during use of the Hosted Services (“Customer Content”) only to provide the hosted products or services to Customer and to provide Customer support. All Customer Content will remain the sole property of Customer, shall be handled by Checkmarx as Customer’s confidential information, and: (a) 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 (b) 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 Hosted Services, Checkmarx is acting as a Processor and shall handle the Personal Information in accordance with the Data Processing Agreement located at https://www.checkmarx.com/legal/terms.
- Analytics. Customer hereby provides to Checkmarx all necessary rights to collect, store, process and use the usage data, analytics and metadata generated during Customer’s use of the hosted products and services (“Usage Data”) for any internal business purpose, 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.
- WARRANTY DISCLAIMERS AND LIMITATION OF LIABILITY.
- WARRANTY DISCLAIMERS. THE HOSTED SERVICES ARE PROVIDED ON AN “AS IS” BASIS, AND EXCEPT TO THE EXTENT PROHIBITED BY LAW, CHECKMARX MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE HOSTED SERVICES, AND HEREBY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY EXPRESS OR IMPLIED WARRANTIES: (A) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT; (B) ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE; (C) THAT ANY CUSTOMER DATA OR CUSTOMER CONTENT WILL BE SECURE OR FREE FROM LOSS OR DAMAGE; AND (D) THAT THE HOSTED SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.
- LIMITATION OF LIABILITY. EXCEPT FOR ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED AS A MATTER OF LAW, CHECKMARX AND ITS AFFILIATES SHALL NOT BE LIABLE UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY, EVEN IF CHECKMARX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, FOR: (A) SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES; (B) THE VALUE OF ANY CUSTOMER DATA OR CUSTOMER CONTENT; (C) LOSS OF PROFITS, REVENUES, CUSTOMERS, OPPORTUNITIES OR GOODWILL; OR (D) UNAVAILABILITY OF THE HOSTED SERVICES. WITHOUT LIMITING THE FOREGOING, LICENSOR IS NOT LIABLE FOR ANY LOSS OR DAMAGE ARISING OUT OF THE ACTS OR OMISSIONS OF THE INFRASTRUCTURE PROVIDER. EXCEPT FOR ANY 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 ADDENDUM OR THE ADDED SERVICES SHALL NOT EXCEED THE HOSTED SERVICE FEES PAID TO CHECKMARX DURING THE PREVIOUS TWELVE (12) MONTHS PRECEDING ANY CLAIM HEREUNDER.
- Payment.
- Payment. Checkmarx shall deliver an invoice stating the Fees and, where applicable, sales, use, value-added or other taxes. Except as otherwise provided in this Agreement, all amounts are non-refundable and are payable in U.S. Dollars unless a different currency is specified in the Quote. All Fees are billed upfront and in advance unless otherwise specified in the Quote or statement of work. All invoices are due thirty (30) days from the invoice date. Checkmarx may charge interest on any overdue Fees that are not subject to good faith dispute at a rate of 1.5% per month, or the maximum rate permitted by applicable law, whichever is lower. Once the Hosted Services have been made available to Customer: (a) any Hosted Service fees are non-cancelable and non-refundable; and (b) the quantity of Hosted Services cannot be decreased by Customer during the relevant Hosted Service term.
- Taxes. 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 use of the Service under this Agreement. 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 withholding or deduction of such taxes is equal to the gross amount of the Fees in the absence of any such withholding or deduction.
- TERM AND TERMINATION.
- Term. The term of this Addendum will begin on the Effective Date set forth in the Quote and will continue for the Hosted Services Term unless earlier terminated in accordance with the termination provisions set forth in the Software License.
- Effect of Termination. Upon termination of this Addendum: (a) Customer’s right to access the Hosted Services shall immediately cease; and (b) Checkmarx shall be entitled to delete any Customer Data, reports or other materials uploaded to the Hosted Services or generated in connection with Customer’s use of the Hosted Services.
- 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 governed by New York law, and 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.
- 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.
- 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 any third party 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.
- 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. 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.
- 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. 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 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.
- 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 fax, email or PDF copy shall be considered binding and deemed the same as an original written signature.
- Export Law. Customer acknowledges that the export, re-export or in-country transfer of the service 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 service 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 who Customer allows to use the Service, including Authorized Contractors, 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 Hosted Service 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 Service and documentation are being licensed to U.S. Government end users only as commercial items and pursuant solely to the terms and conditions herein.
- Entire Agreement. This Agreement, including any Exhibits and Quotes incorporated by reference, constitute the entire agreement between Checkmarx and Customer, and any and all written or oral agreements relating to the use of the Service existing between Checkmarx and Customer, including but not limited to any evaluation licenses, are expressly terminated as of the Effective Date. 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.
- Amendment. 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 other Customers, “Checkmarx” is defined as Checkmarx Ltd. unless a different Checkmarx entity is specified in the Quote.
