SOFTWARE SUBSCRIPTION AGREEMENT FOR PARTNER CUSTOMERS
This Software Subscription Agreement for Partner Customers (“Agreement”) is effective between Cireson, LLC and its subsidiaries (“Cireson”) and the Partner Customer listed on the purchase order(s) submitted to Cireson by the Cireson Reseller (“Subscriber”) upon the delivery of the product license keys for the Software (“Effective Date”). For purposes of this Agreement, a “Partner Customer” is an entity who subscribes to Cireson’s Software through a Cireson Reseller. By paying the Subscription Fees and/or by downloading or using the Software, Subscriber agrees to the following:
Subscriber hereby subscribes (“Subscription”) to the software applications (“Software”) for the Term described on purchase order(s) submitted to Cireson and/or Cireson’s invoice(s) submitted to the Cireson Reseller.
2. Subscription Fees.
a. Generally. In exchange for the Subscription, Subscriber shall pay to the Cireson Reseller the annual subscription fees described on the purchase order(s) submitted to Cireson and Cireson’s invoice(s) (“Subscription Fees”). Subscriber shall ensure that all Subscription Fees to due Cireson from the Cireson Reseller are paid. The Subscription Fees for all Cireson Software are based on the subscription tier as set forth on the purchase order submitted to Cireson and Cireson’s invoice. Cireson’s license tiers are as follows:
The Subscription is based on the number of persons granted access to the Software by Subscriber whether that person is full-time, part-time, an employee, a contractor or a partner (each an “End User” and collectively, “End Users”). All Subscriptions are limited to the maximum number of End Users for the subscription tier purchased. To remain in compliance with the Subscription, Subscriber shall ensure that End Users are appropriately assigned to corresponding Active Directory Groups, or some other logical schema used by Subscriber. Subscriber may activate and deactivate End Users at any time. A deactivated End User is not counted for Subscription compliance purposes.
a. Invoices. Cireson will submit an initial invoice to the Cireson Reseller following the delivery of the product license keys for the Software which shall set forth an itemized description of the Software, the Subscription Fees due, and any Taxes, fees, or charges due. If the Term is longer than 12 months, Cireson will submit an invoice to the Cireson Reseller on an annual basis thereafter until the Subscription is terminated or otherwise expires. If Subscriber has more than one Subscription which are entered into at different times with different Effective Dates, Cireson will submit a separate invoice to the Cireson Reseller for each Subscription on an annual basis on the applicable dates. In Cireson’s discretion, and upon written notice to Subscriber, Cireson may submit invoices directly to Subscriber. If Cireson elects to submit invoices to Subscriber directly, all invoices will be submitted electronically via email to the Subscriber contact listed on the purchase order and Cireson’s invoice. If no contact email is provided to Cireson for purposes of receiving invoices, Cireson may submit its invoices by mail to Subscriber to the attention of its account payable department.
b. Late Payments. If Cireson has not received payment on an invoice by the due date set forth on the invoice, interest will accrue on the unpaid balance at a rate of one and one-half percent (1.5%) per month or fraction thereof the overdue amount remains unpaid. In the event that any amount remains unpaid after thirty (30) days of the due date as set forth on the invoice, Cireson may suspend or terminate each of Subscriber’s Subscriptions to Cireson’s Software. The above-described remedies are in addition to, and not in lieu of, any other remedies which Cireson may have under applicable law.
Subscriber shall ensure that the Cireson Reseller has paid Cireson all Subscription Fees due to Cireson by their due dates. Subscriber agrees and acknowledges that Cireson may suspend or revoke each Subscription if the Subscription Fees are not paid by their due dates.
c. Method of Payment. All payments shall be sent to Cireson in whatever currency is specified on the invoice pursuant to the instructions provided to Subscriber on or with each invoice. Subscriber is responsible for any wire fees and any currency exchange costs associated with payment to Cireson in United States Dollars.
d. Taxes, Duties and Other Charges. Subscription Fees invoiced by Cireson do not include any local, state, federal or foreign taxes, VAT, levies or duties of any nature (“Taxes”) unless otherwise indicated. Subscriber is responsible for paying all Taxes, including sales, use, personal property, value-added, excise, custom fees, import duties and any other similar duties and charges, including penalties and interest, imposed by the any United States federal, state, provincial or local government entity or any non-United States government entity on the provision, sale or use of the Software, excluding only United States based taxes on Cireson’s income. If Cireson has the legal obligation to pay or collect Taxes for which Subscriber is responsible under this Section, the appropriate amount shall be invoiced to and paid by Subscriber unless Subscriber provides Cireson with a valid tax exemption certificate authorized by the appropriate taxing authority.
e. Subscription Compliance; Subscription Upgrade Fees. If, at any time, Subscriber’s use of Cireson’s Software exceeds the number of End Users in the subscription tier paid for, Cireson will notify the Cireson Reseller and Subscriber of the breach of this Agreement and provide the Cireson Reseller and Subscriber the opportunity to meet with Cireson’s Customer Success Team to review the Subscription and Subscriber’s usage. If Subscriber fails to take corrective action to bring its Subscription back into compliance within thirty (30) days of the date of the notice, a “Subscription Upgrade Fee” equal to the difference between the Subscription Fee(s) already paid and current list price of the appropriate subscription tier shall be immediately due and payable Cireson upon receipt of Cireson’s invoice.
3. Audit and Inspection; Data Collection and Processing.
a. Audit and Inspection for Subscription Compliance. Cireson may from time to time inspect Subscriber’s environment for the purpose of ensuring that Subscriber pays the proper Subscription Fees. Cireson’s inspection involves collecting and analyzing counts of End-Users, Analysts, Assets, and Devices used in the Subscriber’s organization. If Cireson’s inspection reveals an underpayment of Subscription Fees, Subscriber shall pay the Subscriptions Fees due, plus interest calculated at ten percent (10%) per annum. If the underpayment is greater five percent (5%) of the actual Subscription Fees paid, Subscriber shall also reimburse Cireson the costs incurred in such inspection including, without limitation, any attorneys’ fees or other professionals’ fees in connection therewith. The rights granted to Cireson in this Section shall survive the expiration or termination of this Agreement for a period of five (5) years.
b. Processing Aggregated Data. Subscriber agrees and acknowledges that Cireson will collect a count of the number of End-Users, Analysts, Assets and Devices used in Subscriber’s organization. Cireson collects counts in order to better understand its customers and how they use the Software across their businesses which assists Cireson with monitoring Subscription compliance, product improvement and development. Cireson will not share these counts with third parties.
c. Processing Personal Data on behalf of Subscriber. Cireson will not generally process personal data on behalf of Subscriber for the purposes of this Agreement (as personal data is stored on Subscriber’s systems and servers). On the limited occasions that Cireson processes personal data on behalf of Subscriber (e.g. if a support ticket is raised), the type of personal data that may be processed in connection with this Agreement is monitoring data about software and subscription usage such as name, individual identifier, email address, IP address, device data, frequency of log in and other usage activities). The categories of data subjects are the Subscriber’s staff.
d. Processor Obligations. Where Cireson processes personal data as a processor on behalf of Subscriber which is subject to the European Union’s Data Protection Law as notified to Cireson by Subscriber in writing, Cireson shall from 25 May 2018: (i) process the personal data to provide the Software and services only on the documented instructions from the Subscriber contained in this Agreement; (ii) implement appropriate technical and organizational measures designed to prevent unauthorised or unlawful processing of the personal data and accidental loss or destruction of, or damage to, the personal data (including where appropriate and agreed pseudonymisation and encryption of the personal data and, measures designed to enable the ongoing confidentiality, integrity, availability and resilience of processing systems and services and restore the availability and access to the personal data in a timely manner in the event of a physical or technical incident and/or a process for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures); (iii) not transfer any personal data outside the European Economic Area (EEA), the European Union (EU) or the UK (to the extent that the UK is no longer in the EEA or the EU) unless the Subscriber consents to such transfer, it is on the basis of a European Commission adequacy decision or appropriate safeguards are in place in accordance with Data Protection Law; (iv) ensure that staff authorised to process personal data are bound by confidentiality obligations; (v) provide commercially reasonable assistance to enable the Subscriber to fulfill data subjects’ rights to the extent that the Subscriber does not have the ability to fulfil its obligations without assistance from Cireson; (vi) delete the personal data at the choice of the Subscriber after the termination of this Agreement and delete copies unless applicable law requires continued storage of the personal data; and (vii) assist the Subscriber in complying with its obligations under the General Data Protection Regulation by promptly notifying the Subscriber of any relevant communications from data subjects or a regulator, notifying the Subscriber of personal data breaches without undue delay and making available to the Subscriber the information necessary to demonstrate its compliance with the General Data Protection Regulation including, and subject to confidentiality obligations and reasonable notice requirements, allowing for audits (at Subscriber’s cost) no more than annually during the term of this Agreement or where required by a regulator to comply with the Data Protection Law.
e. Controller Obligations. Subscriber as controller, as that term is defined by the European Union’s Data Protection Law, is in control of the personal data shared with Cireson and can limit the personal data shared with Cireson using the Software functionality. Subscriber shall ensure that the processing of personal data as envisaged in this Agreement is conducted in accordance with the Data Protection Law (if applicable), including without limitation, by maintaining all necessary registrations, providing all necessary notices and procuring all necessary consents in order for Cireson’s processing of personal data to comply with the Data Protection Law.
“Data Protection Law” means as applicable the Data Protection Act 1998, EU Data Protection Directive (95/46/EC), Regulation (EU) 2016/679 (the “General Data Protection Regulation”) or any equivalent or replacement law in the UK, the Regulation of Investigatory Powers Act 2000 and the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SI 2000/2699) and the terms “controller”, “data subject”, “personal data”, “personal data breach”, “processing” (and “process” shall be interpreted accordingly) and “processor” shall have the meaning given in the Data Protection Law.
4. Term and Termination.
a. Term. The term of each Subscription shall begin on the date Cireson delivers the product license keys of the Software and shall extend for the time period described on the applicable Subscriber purchase order or invoice (“Term”).
b. Termination for Breach. Either party may terminate this Agreement and each Subscription without liability if the other party materially breaches any representation, warranty or obligation set forth in this Agreement and the breaching party fails to cure the breach within thirty (30) days of receipt of written notice of the alleged breach; provided, however, there is no cure period for breaches of Sections 5 and 7(e) and Cireson shall have the right to immediately terminate this Agreement if Subscriber files for bankruptcy protection, becomes insolvent or a receiver is appointed.
5. Intellectual Property.
a. Cireson’s Rights. Subject only to the limited rights granted to Subscriber in this Agreement to use the Software, all Intellectual Property Rights to the Software and any corrections, enhancements, updates or modifications to the Software shall remain the sole property of Cireson. For purposes of this Agreement, “Intellectual Property Rights” include all intellectual property rights, whether existing under statute, equity or common law and whether existing under intellectual property, unfair competition, trade secret or other laws, including, but not limited to, (i) copyrights, trademarks, trade secrets, patents, inventions, innovations, designs, logos, trade dress, moral rights, mask works, or rights of publicity or privacy; and (2) any registration, application or right to apply for any registration of any of the aforementioned rights, including all renewals, extensions and restorations thereof, now or hereafter in force and effect. Subscriber shall not, at any time during or after the term of the Agreement, dispute or contest, directly or indirectly, Cireson’s exclusive right and title to the Software or the validity of any Intellectual Property Rights of Cireson related thereto. Subscriber agrees to execute any documents reasonably requested by Cireson to affect any of the above provisions.
b. Subscriber’s Rights. Subscriber retains all rights and ownership to Subscriber’s content, data or other information inputted.
6. Confidential Information.
a. “Confidential Information” Defined. For purposes of this Agreement, “Confidential Information” shall mean any and all business, technical or third party information provided, disclosed or made accessible to the other under this Agreement including, but not limited to, business plans, marketing plans, financial data, specifications, drawings, sketches, models, samples, computer programs or documentation, contracts, contacts, research and development, trade secrets, formulae, specifications, data, know-how, formats, strategies, forecasts, budgets, copyrightable works of authorship, trademarks, service marks and like information, whether or not such information is marked as “confidential” or “proprietary.” “Confidential Information” shall be defined broadly to include any information that has commercial value or other utility to the disclosing party and information of disclosing party, which if disclosed, would be detrimental to the disclosing party.
b. Duty Not to Disclose; Exceptions. The parties shall restrict access to the Confidential Information to employees, contractors or agents who have a “need to know.” The parties, and their employees, contractors or agents, shall not disclose the Confidential Information to any third party and shall treat the information in the same way it treats its own Confidential Information of like kind. This provision will not apply to information which is in the public domain, is previously known to the receiving party without obligation of confidentiality, is independently developed by the receiving party or is obtained by the receiving party from a third party that does not have an obligation to keep the information confidential. The parties will not make any copies of the Confidential Information without prior approval.
7. Representations and Warranties of Subscriber.
a. Data. Subscriber shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and for obtaining ownership rights or right to use of all content, data and other information inputted.
b. Use of Software. Subscriber is responsible for all activity of all persons using the Software on its behalf or for its benefit whether that person is an employee, a contractor or a partner (“End User(s)”).
c. Compliance with Laws. Subscriber shall abide by applicable local, state, federal and international laws, treaties and regulations in connection with its use of the Software.
d. Notification of Unauthorized Use. Subscriber shall notify Cireson immediately of any unauthorized use of any password or End User account or any other known or suspected breach of security or unauthorized use of the Software.
e. Intellectual Property Rights of Cireson. Neither Subscriber nor any of its End Users shall: (i) copy or attempt to copy the Software or any portion thereof; (ii) translate, decompile or create or attempt to create, by reverse engineering or otherwise, the source code form from the object code of the Software; (iii) modify, adapt, translate or create a derivative work from the Software; (iv) remove any proprietary notices, labels, or marks on the Software or related materials; or (v) assign, sublicense, rent, transfer, publish, make available account log in information, or any part of the Software to third parties, including, without limitation, by transmitting or providing the Software, or any portion thereof, over the Internet, or otherwise, to any third party. All rights not expressly granted hereunder are reserved to Cireson.
f. Good Standing. Subscriber is in good standing with all applicable local, state and federal agencies.
g. Authority. The person executing this Agreement of behalf of Subscriber is authorized to bind Subscriber to the terms and conditions contained herein.
8. Representations and Warranties of Cireson.
a. Authority. Cireson warrants that it has all right, title and interest, free of all liens and encumbrances, in the Software and has the authority to enter into this Agreement.
b. Non-Infringement. Cireson represents and warrants that the Software does not infringe, misappropriate, dilute or otherwise violate any third-party intellectual property rights or other proprietary rights. In the event of a breach of the foregoing warranty, Cireson must, at its own expense and at its sole option either, (i) secure for the Subscriber the right to continue using the Software; (ii) replace or modify the Software to make it non-infringing, provided such modification or replacement will not materially degrade any functionality described in the product documentation; or (iii) refund the Subscription Fee paid for the Software for the current year only. The preceding sentence, in conjunction with Subscriber’s right to terminate the Agreement for breach where applicable, states the Subscriber’s sole remedy and Cireson’s entire liability for breach of the non-infringement warranty.
c. Limited Warranty. Cireson warrants that the Software shall operate in substantial conformance with Cireson’s documentation and shall be free from material defects when operated as recommended by Cireson. During the Term of this Agreement, Cireson shall promptly correct any material defects in the Software pursuant to the severity levels and error resolution process described in the Support and Maintenance Policy. In the event of a breach of the foregoing warranty, Cireson shall correct or replace, at no additional charge to Subscriber, any part of the Software found to be defective which shall be Subscriber’s sole and exclusive remedy. If Cireson is unable to correct or replace the defective Software within a reasonable period of time following notification by Subscriber of a defect, Subscriber’s sole remedy is to terminate this Agreement without liability. Any customization or other modification to the Software by Subscriber, other than with the provided administrative tools (e.g. changes to the source code) negates this warranty and Cireson shall have no obligation to provide support to Subscriber without the execution of a Services Agreement concerning the provision of professional services by Cireson required to support custom instances of the Software and Subscriber’s payment of additional compensation for said professional services. The foregoing limited warranty does not apply to free Software. Except to the extent required by law, Cireson makes no warranties, conditions, representations, or terms (express or implied) whatsoever as to any matter related to the use of free Software. Free Software are delivered “as is” and with all faults.
d. Support Services Warranty. Cireson warrants that any support services provided under this Agreement shall be performed in a professional manner, consistent with industry standards.
e. No Malware. Cireson represents and warrants that none of the applications comprising the Software contains (a) any back door, time bomb, drop dead device or other software routine designed to disable a computer program automatically with the passage of time to prevent authorized use of the Software, or (b) any virus, trojan horse, worm or other components designed to permit unauthorized access, to disable, erase or otherwise harm software, hardware or data.
f. No Open Source Software. Cireson represents and warrants that none of the applications comprising the Software contain any code or materials subject to non-negotiable licenses, including, without limitation, any “open source” or “freeware” software or any other materials requiring that software combined and/or distributed with such materials be disclosed or distributed in source code form, licensed for the purpose of making derivative works, or re-distributable at no charge or subject to material limitations or conditions.
SUBSCRIBER ACKNOWLEDGES THAT NO EXPRESS WARRANTIES HAVE BEEN MADE BY CIRESON OTHER THAN THOSE SET FORTH HEREIN AND THAT THERE IS NO WARRANTY THAT THE SOFTWARE WILL BE CONSTANTLY AVAILABLE, UNITERRUPTED OR ERROR-FREE. THESE WARRANTIES AND THE ASSOCIATED REMEDIES DESCRIBED ABOVE ARE PROVIDED IN LIEU OF ALL OTHER WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY AND FITNESS FOR A PARTICULAR PURPOSE TO MAXIMUM EXTENT PERMITTED BY LAW.
10. Limitation of Liability.
Except for a breach of Section 5 or 7(e) by Subscriber, neither party is liable to the other for any indirect, special, incidental or consequential damages (including punitive and lost profits), regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise, even if informed of the possibility of such damages in advance. Notwithstanding any other provision of this Agreement, Cireson’s liability to the other in connection with or relating to this Agreement, whether in contract, tort or otherwise, shall not exceed the amounts actually received by Cireson under this Agreement.
11. Support and Maintenance.
Subject to payment of Subscription Fees, Subscriber is entitled to Support and Maintenance as described in the Support and Maintenance Policy.
a. Force Majeure. A “Force Majeure Event” means any act or event, whether foreseen or unforeseen that prevents a party (the “Nonperforming Party”), in whole or in part, from performing its obligations or satisfying any conditions to the Nonperforming Party’s obligations under this Agreement and is beyond the reasonable control of and not the fault of the Nonperforming Party, and the Nonperforming Party has been unable to avoid or overcome by exercise of due diligence. In furtherance of the definition of a Force Majeure Event and not in limitation of that definition, each of the following acts or events is deemed to meet the criteria of the section and to be a Force Majeure Event: war, flood, lightning, drought, earthquake, fire, volcanic eruption, landslide, hurricane, cyclone, typhoon, tornado, explosion, civil disturbance, act of God or the public enemy, terrorist act, military action, epidemic, famine or plague, shipwreck, strike, work-to-rule action, go-slow, or similar labor difficulty, each on an industry-wide, region-wide or nationwide basis. The Nonperforming Party shall not be liable for any loss or delay resulting from any Force Majeure Event and any payment or timeline for performance of any services shall be reasonably extended to the extent of any such delay resulting from the Force Majeure Event.
b. Binding on Successors and Assigns. The provisions of this Agreement shall be binding upon and inure to the benefit of each of the parties and their respective permitted successors and assigns. Nothing expressed or implied in this Agreement is intended, or shall be construed, to confer upon or give any person, other than the parties, their successors and assigns, any benefits, or rights under or by reason of this Agreement, except to the extent of any contrary provision herein contained.
c. Assignment. The rights and duties of each party under this Agreement may not be assigned or delegated in whole or in part by operation of law or otherwise without the prior express written consent of the other party. Notwithstanding the foregoing, each party may assign this Agreement to a purchaser or all or substantially all of its assets upon written notice to the other party. Where the assignment involves Cireson’s processing of personal data which is subject to the European Union’s Data Protection Law, it shall be in accordance with the remainder of this Section. Cireson shall: (i) impose substantially the same data protection obligations as set out in this Agreement on subcontractors processing personal data for which the Subscriber is controller; (ii) remain liable to the Subscriber for the performance of the data protection obligations by such subcontractors; and (iii) provide at least 30 days written notice of any intended changes to such subcontractors and the Subscriber shall have the opportunity to reasonably object to any intended changes.
d. Advertising and Publicity. Subscriber agrees to provide marketing support to Cireson, including but not limited to a press release on award of contract and at ‘go-live’, use of Subscriber’s logo in marketing materials, website, collaboration on the creation of a case study after ‘go-live’ and the hosting of reference visits for future prospects of Cireson. Subscriber will have final review of all marketing/public relations collateral and case study materials and will be provided reasonable notice for reference visit requests.
e. Amendment and Waivers. The parties may not amend or waive any provision of this Agreement, except pursuant to a writing executed by the party or parties against whom any amendment or waiver is sought to be enforced. No failure or delay in exercising any right or remedy or requiring the satisfaction of any condition under this Agreement, and no course of dealing between the parties, shall operate as a waiver or estoppel of any right, remedy or condition. A waiver made in writing on one occasion is effective only in that instance and only for that purpose that it is given and is not to be construed as a waiver on any future occasion or against any other person. To the extent any course of dealing, act, omission, failure, or delay in exercising any right or remedy under this Agreement constitutes an election of an inconsistent right or remedy, that election does not constitute a waiver of any right or remedy, or limit or prevent the subsequent enforcement of any contract provision. No single or partial exercise of any right or remedy under this Agreement precludes the simultaneous or subsequent exercise of any other right or remedy. The rights and remedies of the parties set forth in this Agreement are not exclusive of, but are cumulative to, any rights or remedies now or subsequently existing at law, in equity, or by statute.
f. Jurisdiction and Disputes. This Agreement, including, but not limited to, its validity, interpretation, construction, performance and enforcement, shall be construed in accordance with and governed by the laws of the State of California (without giving effect to its conflicts of law principles). Any party bringing a legal action or proceeding against the other arising out of or relating to this Agreement or the transactions its contemplates shall bring the legal action or proceeding in federal or state courts located in San Diego County, California. Each party consents to the exclusive jurisdiction of said courts for the purpose of all legal actions and proceedings arising out of or relating to this Agreement or the transactions it contemplates. Each party agrees that the exclusive choice of forum set forth in this Section does not prohibit the enforcement of any judgment obtain in that forum or any other appropriate forum. Each party waives, to the fullest extent permitted by law, any objection which it may now or later have to the venue agreed upon herein, and any claim that any action or proceeding brought in any such court has been brought in an inconvenient forum.
g. Attorney’s Fees. Should it be necessary to institute any action to enforce the terms of this Agreement, the parties hereby agree that the substantially prevailing party in any such action shall be entitled to recover its reasonable attorneys’ fees, as well as all costs of the action, including, but not limited to court costs, filing fees, exhibit fees, forensic consultant fees, litigation support costs and expert witness fees. Further, recoverable attorney fees and costs shall include the costs for such items for any appeals. This paragraph shall remain independent from any judgment entered to enforce its terms, shall not merge therewith, and shall entitle the prevailing party to attorneys’ fees and costs incurred in connection with post judgment collection and enforcement efforts.
h. Entire Agreement. This Agreement supersedes and cancels all prior agreements, if any, between the parties and shall not be amended, altered or changed except by written agreement signed by both parties. No failure or delay in exercising any right or remedy or requiring the satisfaction of any condition under this Agreement, and no course of dealing between the parties, shall operate as a waiver or estoppel of any right, remedy or condition.
i. Notices. Notices required under this Agreement shall be in writing and shall be sent to the party’s last known address or the email address set forth below. Notice will be deemed given (1) as of the day following the day notice is deposited with an overnight courier, charges prepaid, return receipt requested; or (2) as of the day following the day of email notice; or (3) as of the third day if the notice is deposited in first class U.S. Mail, charges prepaid, return receipt requested, with a confirming email from the party providing the notice; or (4) as of the day of delivery if the notice is hand delivered. Notices sent to Cireson shall be sent to:
Matt Deen, Legal Counsel
1431 Pacific Highway, Suite H3
San Diego, CA 92101