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Subscription Agreement
This Subscription Agreement (the “Agreement”) is entered by and between Checkmarx Ltd., (the “Company”) and the individual or other legal entity who is accepting this Agreement (“You” or “Your”, as the case may be).
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING A PURCHASE ORDER (DEFINED BELOW), YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
1. Definitions
"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
"User Guide" means the online user guide for the Services, accessible via the user interface, as updated from time to time. You acknowledge that you have had the opportunity to review the User Guide during the free trial described in Section 2 below.
"Users" means individuals who are authorized by You to use the Services, for whom subscriptions to a Service have been purchased, and who have been supplied user identifications and passwords by You (or by the Company at Your request). Users may include, but are not limited to, Your employees, consultants, contractors and agents.
"Your Data" means all electronic data or information submitted by You to the Company in connection with the Services.
2. The Services
2.1 Trial Period. Pursuant to the terms and conditions of this Agreement, the Company will provide You with the Services (defined below) on a trial basis free of charge until the earlier of (such period to be defined as the “Trial Period”): (a) the thirtieth day following your acceptance of this Agreement, or (b) the day that You purchase any of the Purchased Services (defined below).
For purposes of this Agreement, the term “Services” shall mean the online, Web-based applications and platform to be provided to You by the Company via http://www.Checkmarx.com as part of the Trial Period or pursuant to a Purchase Order, including associated offline components, if any.
The term “Purchase Order/s” shall mean any document/s (including online documents) and any addendum or additions thereto that may be entered between You and the Company from time to time in connection with Your purchase of Services from the Company (other than the Services provided during the Trial Period). In the event of a conflict between the terms of this Agreement and the terms of a certain Purchase Order, the terms of this Agreement shall prevail (unless provided to the contrary in the Purchase Order). The term “Purchased Services” shall mean Services to be provided pursuant to a Purchase Order (but not during the Trial Period).
Without limiting the foregoing, You acknowledge that additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated herein by reference and are legally binding as if fully set forth in this Agreement.
2.2 Purchased Services.
2.2.1 General. The Company shall provide You with the Purchased Services pursuant to terms of this Agreement and the pertinent Purchase Order/s during the subscription term set forth in the pertinent Purchase Order (the “PO Subscription Term”).
2.2.2. User Subscriptions. It is agreed that, unless otherwise provided in the applicable Purchase Order, (i) Services are purchased for a certain number of Users as set forth in the pertinent Purchase Order and therefore may be used by no more than the specified number of Users (provided, however, that the right to use the Services may be assigned from one User to another if such former User no longer requires ongoing usage of the Services);
(ii) additional Users may be added during the relevant PO Subscription Term under the same terms and conditions applying in connection with the pre-existing Users, prorated for the remainder of the PO Subscription Term in effect at the time the additional Users are added, and (iii) the additional User subscriptions shall terminate, with all other Users, on the termination of the PO Subscription Term.
3. The Company’s Undertakings. The Company shall : (i) provide You with basic support for the Purchased Services (more comprehensive service is available if paid for separately), (ii) use commercially reasonable efforts to make the Purchased Services available for You 24 hours a day, 7 days a week, except for: (a) scheduled downtime (for which the Company shall endeavor to give at least 8 hours notice in advance), and (b) circumstances beyond the Company’s control, including, without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving the Company's employees), or Internet service provider failures or delays, and (iii) notwithstanding anything to the contrary contained herein, provide the Purchased Services only in accordance with applicable laws and regulations.
4. Your Undertakings. You shall (i) be responsible for the Users’ compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of Your Data and of the means by which You acquired Your Data, (iii) use your best efforts to prevent unauthorized access to, or use of, the Services, and notify the Company promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the User Guide and applicable laws and regulations. You shall not (a) make the Services available to anyone other than the Users, (b) assign, license, sell, resell, rent or lease the Services to any third party, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortuous material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks.
5. Limitations on Usage. Notwithstanding the foregoing, Services may be subject to limitations such as, for example, limits on number of applications or the size of applications you are permitted. Any such limitations are specified either in the User Guide or in the terms of engagement set forth in the Purchase Order.
6. Terms of Payment
6.1 Fees. Terms of payment shall be set forth in the Purchase Orders. Unless specified otherwise in the pertinent Purchase Order, You agree that: (i) all fees are quoted and payable in US dollars, (ii) all payment obligations are final and fees paid are non-refundable, and that (iii) all fees are calculated on an annual basis. Payment for additions to the number of Users shall be made on a pro-rata basis.
6.2. Invoicing and Payment.
6.2.1 Payments for our services shall be made by a valid credit card or such other means approved in advance by the Company.
6.2.3 By providing the Company with Your credit card information, You authorize the Company to charge Your credit card in advance for all Services listed in the Purchase Order for the duration of the PO Subscription Term, including any renewal thereof.
6.2.4 If the Purchase Order specifies a method of payment other than a credit card, the Company will invoice You in advance accordingly. Unless otherwise provided in the pertinent Purchase Order, all payments (other than credit card payments) are due within 30 days from the date of the invoice.
6.3 Late Charges.
6.3.1 Any payments that are not timely received shall bear an interest at the rate of 1.5% of the outstanding balance due per month, or the maximum rate permitted by law, whichever is lower, from the date such payment is due until the date that actual payment is received. In addition, you shall be responsible for the cost associated with the collection of your fees including, without limitation, reasonable attorney's fees.
6.3.2. Without limiting any of the Company's rights and remedies, if any amount owed by You under this or any other agreement (including any outstanding Purchase Order) for Services is 30 or more days overdue (or 15 or more days overdue in the event You have authorized the Company to charge Your credit card), the Company shall have the right to declare any amounts due to be payable immediately.
6.4 Taxes. Unless otherwise stated, the fees for the Services do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to VAT, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, the "Taxes"). It shall be Your responsibility to pay any and all Taxes that may be levied against You in connection with Your purchase of the Services.
7. Proprietary Rights
7.1. Reservation of Rights. Unless expressly provided herein, the Company reserves all rights, title and interest in and to the Services, including all related intellectual property rights.
7.2. Restrictions. You agree not to: (i) permit any third party to access the Services except as permitted herein or in a Purchase Order; (ii) create any derivative work (such term to include, without limitation, the definition included in the US Copyright Act) in connection with the Services, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your direct own internal business purposes, (iv) reverse engineer the Services or any component thereof, (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
7.3. Ownership of Your Data. As between the Company and You, You shall retain all rights, title and interest in and to Your Data.
7.4. Suggestions or Amendments. You hereby grant the Company a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You (including all Users), relating to the Services.
7.5 Federal Government End Use Provisions. We provide the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with the Company to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
8. Confidentiality
As used herein, the term "Confidential Information" shall mean any information disclosed by one party to this Agreement (the "Disclosing Party") to the other party (the "Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.
8.1 Without limiting the foregoing, the parties agree that Your Data and any information related to the Services shall be considered as Confidential Information. In addition, the terms and conditions of this Agreement and all Purchase Orders, as well as business and marketing plans, technology and technical information, know how, product plans and designs, and business processes disclosed by a Disclosing Party to the Receiving Party shall be considered as Confidential Information. However, Confidential Information (other than Your Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
8.2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
8.3. Protection of Your Data. Without limiting the above, the Company shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. The Company shall not (a) modify Your Data, (b) disclose Your Data except as compelled by law in accordance with Section 8.4 (Compelled Disclosure) or as expressly permitted in writing by You, or (c) access Your Data except to provide the Services or prevent or address service or technical problems, or at Your request in connection with customer support matters. Notwithstanding the foregoing, You understand that any data you may enter into the Services, and any customizations made to the Services by or for you, during your free trial will be permanently lost unless you execute a Purchase Order for the rendering of Services that are at the same level of, or more comprehensive than, the Services provided during the Trial Period, or export such data, before the end of the Trial Period.
8.4. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
9. Representation, Warranties and Disclaimers
9.1. Each party represents and warrants to the other party that (i) it has the legal power to enter into this Agreement, and (ii) it will use its best efforts no to transmit to the other party any Malicious Code.
9.2 Without limiting the foregoing, You hereby represent and warrant to the Company that: (i) you own all rights and title in and to Your Data; and that (ii) to the best of your knowledge, no third party has any claims (whether written or otherwise), assessments or demands that Your Data infringes upon such third party's rights (the "Data Claim"). You shall defend and hold the Company harmless against any Data Claim made or brought against the Company by a third party alleging that Your Data, or Your use of the Services in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify the Company for any damages awarded against, and for reasonable attorney’s fees incurred by, the Company in connection with any such Data Claim.
9.3 Disclaimers. IT IS EXPRESSLY UNDERSTOOD THAT THE SERVICES PROVIDED HEREIN (WHETHER DURING THE TRIAL PERIOD OR PURSUANT TO A PURCHASE ORDER) ARE PROVIDED SOLELY FOR YOUR OWN INFORMATION. ANY INFORMATION DERIVED FROM THE SERVICES MAY NOT BE SHARED WITH, OR DELIVERED TO, ANY THIRD PARTY, AND NO THIRD PARTY MAY HAVE ANY RELIANCE WHATSOEVER ON ANY INFORMATION BY THE COMPANY TO YOU DERIVED FROM THE SERVICES (INCLUDING, BUT NOT LIMITED TO, ANY REPORTS PREPARED BY THE COMPANY).
EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
10. Limitation on Liability
10.1. Limitation on Liability. IN NO EVENT SHALL THE COMPANY'S AGGREGATE LIABILITY TO YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY PURCHASE ORDER, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE LESSER OF $500,000 OR THE TOTAL AMOUNT OWED BY YOU TO THE COMPANY PURSUANT TO THE PERTINENT PURCHASE ORDER OR OTHERWISE, WITH RESPECT TO ANY SINGLE INCIDENT. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER THIS AGREEMENT OR ANY PERTINENT PURCHASE ORDER (FEES AND PAYMENT FOR PURCHASED SERVICES).
10.2. Exclusion of Consequential and Related Damages. WITHOUT LIMITING ANY OF THE FOREGOING, IN NO EVENT SHALL THE COMPANY HAVE ANY LIABILITY TO YOU FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
11. Term and Termination
11.1. Term of Agreement. This Agreement commences on the date You accept it (either by clicking a box indicating your acceptance or by executing a Purchase Order) and shall continue until all User subscriptions granted in accordance with this Agreement have expired or been terminated. If You elect to use the Services during the Trial Period and do not execute a Purchase Order before the end of that period, this Agreement will terminate at the end of the Trial Period.
11.2. Termination. A party may terminate this Agreement immediately upon: (i) written notice to the other party if the other party materially breaches this Agreement (including, without limitation a breach of Your payment obligations in which case, any unpaid fees pursuant to the then outstanding Purchase Order shall become immediately due and payable to the Company), or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
11.3. Surviving Provisions. Section 6 (Terms of Payment), 7 (Proprietary Rights), 8 (Confidentiality), 9 (Representations and Warranties) and 10 (Limitation on Liability).
12. No access. Notwithstanding anything to the contrary contained herein, You may not access the Services if You are a competitor of the Company (i.e., You provide services, or sell products, that serve similar purposes as the Company's Services or other products), except with the Company's prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes
13. Miscellaneous
13.1. Venue and Jurisdiction. This Agreement shall be construed and enforced in accordance with the internal laws of the State of New York, without regard to principles of conflict of laws which would result in the application of law of any other jurisdiction. Any litigation arising under, or related to, or in connection with this Agreement shall be tried in the United States District Court for the Southern District of New York, provided that if such litigation shall not be permitted to be tried in such court, then such litigation shall be tried in state courts of New York located in the County of New York. Each party hereto, irrevocably consents to and confers personal jurisdiction on the United States District Court for the Southern District of New York, or, if (but only if), the litigation in question shall not be permitted to be tried in such court, on the state courts of New York located in the County of New York and expressly waives any objection to the venue of such courts. THE PARTIES HEREBY WAIVE THE RIGHT TO ANY JURY TRIAL IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGH BY EITHER PARTY AGINST THE OTHER.
13.2. Notices. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Notices to You shall be addressed to the system administrator designated by You for Your relevant Services account, and in the case of billing-related notices, to the relevant billing contact designated by You.
13.3. Relationship of the Parties. The relationship of the parties herein are of independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
13.4. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
13.5. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
13.6. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Purchase Orders), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, the Company shall refund to You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
13.7. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Purchase Orders, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted.
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