SUBSCRIPTION AGREEMENT
This Subscription Agreement (“Agreement”) is made this XXth day of August, 2013 by and between Threat Triage LLC., an Ohio company (“TTL”) and (“User”).
PREAMBLE
TTL has developed web-based analytical tool for the evaluation of threatening communication (“Threat Triage”) which is designed to assist security organizations in the evaluation of threatening communication and the resulting allocation of resources for the prevention and investigation of threats. User desires to obtain access to Threat Triage in accordance with, and subject to the terms and conditions of this Agreement, and TTL is willing to grant User a license to use Threat Triage, all in accordance and subject to the terms and conditions of this Agreement. Therefore, the parties, intending to be legally bound hereto, agree as follows.
AGREEMENT
Access.
Grant of Access. Subject to User's compliance with the terms and conditions of this Agreement, TTL will allow User to subscribe to and use TTL’s Threat Triage site https://threattriage.com (the “Site”) for the Seat Licenses (defined below).
Seat Licenses. User hereby subscribes to XXXX seat licenses which shall mean a unique user I.D and password which is to be assigned to one employee of the User for the purpose of signing in to the Site (each a “Seat License” and collectively, the “Seat Licenses”). Each Seat License shall be specifically assigned to an individual person within User’s organization. User shall inform TTL in writing of the full name of each person to whom each Seat License is assigned (each and “Authorized User”). User may reassign the Seat License to different individual Authorized Users within its organization, provided, that the number of Authorized Users shall at no point exceed the number of Seat Licenses granted hereunder. User shall be responsible for assuring that only Authorized Users have access to the user names and passwords connected to each Seat License. Failure by User to restrict access to the Seat Licenses to Authorized Users shall be a material breach of this Agreement by User. Each Seat License will authorize the Authorized User to run an unlimited number of Threat Triage analysis available on the Site, subject to the limitations set forth in the Agreement, the terms and conditions of use of the Site and TTL’s privacy policies, as the same may be amended from time to time by TTL in its sole discretion (collectively, the “Policies”), which are incorporated herein by reference. The Policies are available on the Site and User acknowledges having reviewed the current version of the policies prior to the date hereof. User agrees to be bound by the terms, conditions and limitations of the Policies. TTL shall provide User with prior notice of any changes to the Policies. Any such changes to the Policies shall not materially interfere with User’s use of, or access to the Site and the Threat Triage. In the event of any conflict between the Policies and this Agreement, the terms of this Agreement shall prevail.
Passwords. In order to protect access to the Seat Licenses, TTL will require Authorized Users to change passwords for the Seat License on a regular basis. In addition to regular password changes, TTL may require additional password changes, if, in its reasonable judgment, it believes that the frequency, location or other indicators of use of a Seat License indicate a substantial deviation from the expected use of the Seat License.
Limitation of Seat Licenses. The access to the Site and the Threat Triage granted to User hereunder is limited to only the performance of User of its function and for the services and territory for which User is authorized or organized (“Scope”). The Seat Licenses shall not be used for matters outside of the Scope. Use of a Seat License in violation of the forgoing shall be deemed a material breach of this Agreement by User.
Payment. Upon execution and delivery of this Agreement, User shall pay TTL a fee in the amount of XXXX for the Seat Licenses (“Fee”). The Fee shall be due within 30 days of execution and delivery of this Agreement (the “Due Date”). [OPTIONAL The Fee due as part of this agreement has been discounted under the condition that User provides TTL with Closed Case data during the term of this agreement. Closed Case data will be submitted via the Threat Triage web site and shall not contain any personal identifying information of any parties involved with the case.] If User fails to pay the Fee within 30 days of the Due Date, User shall be obligated to pay TTL an administrative late fee of 5% of the amount past due for every 30 days that such amount remains unpaid after the Due Date. If User fails to pay any fees or charges due under this Agreement or fails to carry out any other obligation under this Agreement, TTL may, at its option, suspend User’s access to the Site until User cures the default. No termination of this Agreement or suspension of access to the Site shall release User from any obligation to pay TTL any amount that has accrued or becomes payable at or prior to the date of termination. User shall not be entitled to any refund of any Fees paid to TTL as a result of a termination.
Term. This Agreement shall become effective as of the date hereof and shall continue for a period of 12 months, unless earlier terminated in accordance with the terms hereof (the “Term”). The Seat License shall become effective upon payment in full of the Fee and shall terminate upon the expiration of the Term.
Service Interruption. TTL shall not be responsible for delays or service interruptions attributable to causes beyond its reasonable control, including limitations on the availability of telephone transmission lines and facilities, failures of other communications equipment, internet access delays or failures, failures or deficiencies of User’s equipment, or User's failure to meet its responsibilities under this Agreement.
Software License. TTL has incorporated various computer software programs (“Applications”) into the Site. Subject to the terms and conditions of this Agreement, TTL grants User a personal, nonexclusive, and nontransferable license to use the Applications for User’s own needs only on an on-line basis in connection with User’s use of Site. This license shall terminate upon the termination of this Agreement. User shall not decompile or otherwise reverse engineer or decode the Applications. User shall not take or refrain from taking, directly or indirectly, any action that may in any way lead to the unauthorized dissemination, reproduction, or use of Applications. User’s obligations under this Section 5 shall survive termination of this Agreement. User acknowledges that a breach of its obligations under this Section 5 will cause irreparable harm to TTL for which monetary damages would be inadequate and that therefore TTL and its licensors will be entitled to injunctive relief for any such breaches, threatened or actual, in addition to any other relief or remedy to which they may be entitled.
User Responsibilities. User is responsible for (a) acquiring, installing, and maintaining computer equipment and computer software programs at its premises compatible with and as necessary to use Site, (b) obtaining access to the Internet, (c) downloading from the Site and installing any necessary plug-ins, and (d) providing TTL with full sanitized texts and outcomes of closed cases.
Warranties and Limitations.
Warranty. TTL will provide service with an average of 99% uptime per month. Downtime includes periodic unavailability due to maintenance of the server, the installation or testing of software, and downtime related to the failure of equipment or services within the control of TTL. Scheduled downtime will be performed at a time to minimize inconvenience to User. As TTL's sole responsibility and User's exclusive remedy, in the event of any material failure to meet such standards, TTL shall make all commercially reasonable efforts to remedy any such failure.
Limitation. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, TTL MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, REGARDING ANY MATTER WHATSOEVER. TTL SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Indemnification.
User shall indemnify and hold TTL harmless from any claims, liabilities or other damages (including reasonable attorneys fees) resulting from User’s use of the Site, or the use of the Site by anyone authorized or permitted by User (including any Authorized User) to access the Site, or software downloaded from the Site, User’s breach of this Agreement, or your infringement of the intellectual property rights of any third party. The total cumulative liability of TTL for all claims, whether in contract, tort, or otherwise, arising out of, connected with, or resulting from use of the Site shall not exceed the amounts paid by User to TTL under this Agreement during the 12 months immediately preceding the claim.
TTL SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING OUT OF OR CAUSED, IN WHOLE OR IN PART, BY ANY ERRORS OR OMISSIONS IN ANY CONTENT OR OTHER INFORMATION PROVIDED THROUGH THE SITE OR BY DELAYS IN OR INTERRUPTIONS OF ACCESS TO THE SITE. UNDER NO CIRCUMSTANCES SHALL TTL BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR ANY OTHER DAMAGES WHATSOEVER THAT MAY RESULT FROM THE USE OF OR THE INABILITY TO USE THE SITE, INCLUDING WITHOUT LIMITATION, DAMAGES ARISING FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DETERIORATION, OR CORRUPTION OF FILES, DELETION OR CORRUPTION OF EMAIL, ERRORS, LOSS OF DATA, LOSS OF PROFITS, DEFECTS, VIRUSES, AND/OR DELAYS. THIS LIMITATION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF TTL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES; TTL’S LIABILITY IN SUCH JURISDICTIONS SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
Miscellaneous.
Assignment. User may not assign, pledge or otherwise transfer this Agreement or any rights or obligations under this Agreement (by operation of law or otherwise) to any third party without the prior written consent of TTL, which consent may be withheld by TTL in its sole and absolute discretion. This Agreement shall be binding upon, and inure to the benefit of, the parties and their respective successors and permitted assigns.
Waiver. The failure of either party to act upon any right, remedy, or breach of this Agreement shall not constitute a waiver of that or any other right, remedy, or breach. No waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
Governing Law. This Agreement and any claim arising out of this Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Ohio, excluding its conflict of laws principles.
Government Rights. This paragraph (d) applies only if User is a branch or agency of the U.S. government (“Government”). User acknowledges that (a) Applications constitute "commercial computer software" or "commercial computer software documentation" for purposes of 48 C.F.R. 12.212 and 48 C.F.R. 227-7202-3, as applicable and (b) the User's rights are limited to those specifically granted pursuant to this Agreement.
Severability. The provisions of this Agreement are severable. If any provision is held to be invalid, unenforceable, or void, the remaining provisions shall not as a result be invalidated.
Marketing Materials. User hereby grants permission to TTL to use the User’s name in press releases and other marketing materials and information that would identify the User as a customer of the Site and user of the Threat Triage. The Customer shall retain the right to review and approve all written materials before publication.
Amendments. This Agreement may be amended only by a writing signed by each of the parties.
Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument.
Integration. This Agreement, together with the Policies, contains the entire agreement of the parties with respect to the transactions contemplated hereby and supersedes all prior written and oral agreements, and all contemporaneous oral agreements, relating to such transactions.
[SIGNATURE PAGE FOLLOWS]
SIGNATURE PAGE TO SUBSCRIPTION AGREEMENT
Threat Triage LLC.
By:
Name: Michael D. Young
Title: Executive
[USER]
By:
Name:
Title:
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