ARIA Cybersecurity Terms and Conditions – ARIA ADR and SaaS Solutions
Software Subscription Agreement License Terms and Conditions
This Software Subscription License Agreement (the “Agreement”) is a condition of accepted delivery of our product or service as noted in the sales order. The date of the Invoice being the “Effective Date”) between CSP, Inc. DBA ARIA Cybersecurity, having its principal place of business at 175 Cabot Street, Suite 210, Lowell, Massachusetts 01854, (“CSPi”) and the [Customer], here to noted as the (“Customer”).
Whereas, CSPi is the proprietor and offers license to use certain Software that is useful in providing security protection for the Customer’s IP network; and
Whereas, Customer desires to subscribe to the right to install and use the Software; Now, therefore, the Parties agree as follows:
Order and Purchase of Software Subscription
Upon Customer’s request and upon receipt of the requisite information regarding Customer’s Network, CSPi shall provide a Quote detailing the size and scope of the recommended installation of CSPi’s Software necessary to provide protection to Customer’s network. The Quote shall include a proposed schedule for installation and the necessary subscription license fees.
Customer shall offer to purchase Products by submitting a Purchase Order to CSPi, referencing the Quote. The Purchase Order shall also specify the requested subscription term and delivery dates
CSPi shall indicate its acceptance of Customer’s Purchase Order either by accepting such Purchase Order in writing (“Order Acceptance”) or by commencing, or continuing, to provide the Software (and an “Accepted Purchase Order” shall be construed accordingly). Any term or condition stated on a Purchase Order or any Quote or other similar document that conflicts with the provisions of this Agreement shall be null and void.
Prices set forth in a Quote shall be valid and binding on CSPi until sixty (60) days after the issuance of such Quote, or until the expiration date set forth on such Quote whichever occurs earlier. Absent a binding Quote the prices shall be those set forth in an Accepted Purchase Order.
Each Purchase Order shall be subject to CSPi’s written confirmation and acceptance and shall not be binding upon CSPi until it has been accepted. Purchase Orders must be accepted or rejected in their totality
License. CSPi grants to Customer a non-assignable, non-exclusive, non-transferable (except as expressly provided herein) license (the “License”) to use the Software provided to Customer for the duration of the Subscription Term purchased by Customer, in accordance with the License Scope purchased by Customer. Customer may use the Software (i) for Customer’s internal business purposes, (ii) as intended through the normal functionality of the Software, and (iii) in accordance and compliance with the terms of this Agreement. Any copy of the Software and Documentation provided to Customer under this Agreement is licensed, not sold, to Customer by CSPi. Customer may make copies of the Software and Documentation solely for backup or archival purposes. If the Software is an update, Customer may use it only within the network in which the original Software was installed.
Restrictions. Customer may not (i) modify, translate, adapt or create derivative works from the Software or Documentation, (ii) decompile, disassemble, decrypt, extract or otherwise reverse engineer the Software, except to the extent this restriction is expressly prohibited by applicable law, (iii) circumvent, disable or otherwise interfere with security-related features of the Software, or (iv) use the Software for any illegal purpose, in any manner that is inconsistent with the terms of this Agreement, or to engage in any illegal activity. Customer may not loan, rent, transfer, lease, or license the Software or allow third parties to use the Software via time sharing, service bureau, or other arrangements, or copy the Software or Documentation other than as expressly provided herein.
Copyright and other intellectual property. CSPi (or its licensors) shall own all intellectual property rights in the Software and Documentation. Customer shall have no rights in or to the Software or Documentation other than the right to use them in accordance with the terms of this Agreement. The provisions of this Section 3.3 shall survive termination or expiration of this Agreement.
Changes to License Scope. If the size, structure or nature of the Customer’s Network changes during the Subscription Term, Customer shall without delay inform CSPi. CSPi reserves the right to increase fees, as of the next anniversary or renewal date of a Subscription, to reflect the increased Scope of the License.
Warranty, Support and Maintenance
Warranty. CSPi warrants that during any Subscription Term, the Software will perform materially in accordance with the Documentation. If CSPi receives notice from Customer that the Software is not performing in accordance with the Documentation, CSPi will use commercially reasonable efforts to remedy or fix such defect in accordance with CSPi’s standard support procedures. In addition, CSPi will, at Customer’s election, either (i) install or (ii) make available for installation by Customer, all new Updates of the Software during the Term. Customer shall control access to use of the Software by controlling access to its Network, but Customer shall provide CSPi with access if it elects to have CSPi install such Updates.
Customer Responsibility. Customer acknowledges, (i) that the Software is intended as a tool only and not a guarantee of a particular outcome or result; Customer is solely responsible for the results achieved using the Software; (ii) that Customer has control of and is solely responsible for the security of its Network; and (iv) that Customer is responsible to maintain and back up all Customer data, including the results achieved using the Software.
EXCEPT FOR THE EXPRESS WARRANTIES MADE IN THIS AGREEMENT, CSPI DOES NOT MAKE ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, AND CSPI DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE.
NEITHER THIS AGREEMENT NOR ANY DOCUMENTATION FURNISHED UNDER IT IS INTENDED TO GUARANTEE OR IMPLY THAT (i) THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED, TIMELY, OR ERROR-FREE OR WILL PROTECT AGAINST ALL POSSIBLE THREATS OR ATTACKS, (ii) ALL SECURITY THREATS, MALICIOUS CODE AND/OR VULNERABILITIES WILL BE IDENTIFIED AND BLOCKED, (iii) THE OPERATION OF THE SOFTWARE WILL RENDER CUSTOMER’S NETWORK AND SYSTEMS SAFE FROM MALICIOUS CODE, INTRUSIONS OR OTHER SECURITY BREACHES, OR (iv) THERE WILL BE NO FALSE POSITIVES IN TERMS OF IDENTIFYING POSSIBLE THREATS OR ATTACKS.
Payment of Fees. Payment of the Subscription Fees shall be due annually, in advance. All other fees and charges shall be due and payable within thirty (30) days from the invoice date. Fees and miscellaneous charges not paid to CSPi when due shall be subject to interest thereon, at the rate of one percent (1%) per month, or the highest amount permitted by law, whichever is lower, from the date payment was due until such amount, together with interest thereon, is paid in full.
Taxes. All fees, charges or other consideration paid to CSPi by Customer shall be exclusive of all taxes. Customer shall be responsible for any and all taxes that may be imposed or that CSPi may be required to collect or pay (excluding taxes based on income such as unrelated business taxable income, corporate income tax or similar taxes) upon the sale or delivery of Software and services provided by CSPi to Customer.
Term and Termination
Term. This Agreement shall commence on the Effective Date and continue for a noncancelable term of three (3) years. This Agreement shall automatically renew for additional successive three (3) year renewal terms unless one party provides the other party with written notice of its intention to not renew the Agreement at least one hundred and twenty (120) days prior to the expiration of the then current term (the initial and renewal terms collectively referred to herein as the “Term”).
Termination. Either Party may terminate this Agreement and/or any active Subscription, effective immediately, upon providing written termination notice to the other Party, if the other Party fails to cure a breach of a material term of this Agreement and/or any active Subscription within sixty (60) days after receiving written notice thereof. Either Party may terminate this Agreement, effective immediately, in the event of bankruptcy, dissolution or liquidation by the other Party.
Actions upon Termination. In the event of expiration (but not termination) of this Agreement all licenses granted pursuant to Section 3 of this Agreement shall nevertheless continue until their expiration and shall be governed by the terms of this Agreement. Any and all fees and charges for Services performed that have not been paid shall immediately become due.
Mediation. If a dispute arises out of or in connection with this Agreement or the performance, validity or enforceability of it (“Dispute”) then the parties shall follow the procedure set out in this Section 11.1, (a) either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (“Dispute Notice”), together with relevant supporting documents. On service of the Dispute Notice, the parties shall attempt in good faith to resolve the Dispute through direct negotiation, (b) if the parties are for any reason unable to resolve the Dispute within thirty (30) days of it being referred to them, the parties will attempt to settle it by mediation in accordance with the CPR Mediation Procedures. Unless otherwise agreed between the parties, the mediator shall be nominated by CPR. The mediation will start not later than thirty (30) days after the date of the ADR notice. Notwithstanding the foregoing, either party shall have the right to seek immediate temporary relief from any court of competent jurisdiction to prevent irreparable harm to such party, pending the outcome of any such mediation or subsequent legal action.
Neither party may assign this Agreement, or its rights or obligations hereunder without the prior written consent of the other party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, however, either party may assign all, but not less than all, of its rights and obligations hereunder to a successor party in the event that such party merges or sells its relevant assets to such successor party, or engages in a similar type transaction, and provided that such successor party agrees to be bound by all of the terms and conditions of this Agreement.
Each party shall comply with all applicable laws and regulations of governmental bodies or agencies in its performance under this Agreement. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts (excluding its choice of law rules.) The exclusive jurisdiction for any legal proceeding regarding this Agreement shall be in the state or federal courts located in the Commonwealth of Massachusetts and each party hereto expressly submits to the jurisdiction of said courts and hereby waives any objection to the venue in such courts.
Neither party shall, by lapse of time or inaction, be deemed to waive any breach by the other party of this Agreement. No waiver shall be effective unless in writing and signed by the party against which enforcement of such waiver is sought. The waiver by either party of a particular breach of this Agreement by the other party shall not be a continuing waiver of such breach, or of other breaches of this Agreement. Neither party shall be in default if failure to perform any obligation hereunder is caused by conditions beyond that party’s control, including acts of God, civil commotion, strikes, labor disputes, and governmental demands or requirements.
All notices and other communications under this Agreement shall be sent either by U.S. mail as registered mail, return receipt requested, or by overnight courier service, postage prepaid, and addressed to the party at the address noted above, unless by such notice a different address shall have been designated in writing. All such notices shall be effective when delivery is made or attempted by the Postal or Courier Service.
If any provision of this Agreement shall be held unenforceable or illegal, the validity of the remaining portions or provisions hereof shall not be affected thereby. The parties agree that this Agreement is the complete and exclusive statement of their agreement and supersedes all proposals (oral or written), understandings, representations, conditions, warranties, covenants and all other communications between the parties relating thereto. Only a writing that refers to this Agreement and is duly signed by both parties may amend this Agreement.
“Software” means the proprietary CSPi ARIA Cybersecurity software product line. As used herein, the term Software shall include all Updates to such Software that are delivered by CSPi under this Agreement.
“Documentation” means the Software description and other electronic manuals and instructions provided with the Software by CSPi. The term Documentation shall not include general advertising or product information literature
“Updates” means all versions, revisions, updates or upgrades to the Software that CSPi makes available generally to Customers without an additional Subscription Fee.
“License Scope” means the extent of Customer’s allowable use of the Software, which shall be initially calculated by CSPi based on the size and structure of the network that Customer desires to protect. CSPi shall calculate and include the initial License Scope in its Quote, based on information regarding the network provided by Customer. Customer shall be entitled to increase its License Scope as its network grows and evolves provided that the Customer shall provide CSPi with updated information regarding its network (i) at the end of each Subscription Term and (ii) in the event that Customer’s network increases due to a merger, acquisition or other out of the ordinary course of business event. At such times, CSPi shall recalculate the License Scope and License Subscription Fee.
“Network” means Customer’s private IP network that Customer desires to protect from cyberattacks utilizing the Software
“Subscription Term” means the period of time that Customer has the right to use the Software under Section 3 below, based on the Subscription period that Customer has ordered and paid for.
“Subscription Fees” means the amount that Customer shall pay to CSPi in consideration of the license grants hereunder, for the applicable Subscription Term.
CSPi shall assist Customer to install the Software in the customer’s Network and configure it for use in accordance with Customer’s Order and mutually agreed upon Statement of Work. CSPi shall notify Customer when it has completed installation and the Software is operational in accordance with the Statement of Work (“Acceptance”). Should Customer use the Software for production purposes, it shall constitute Acceptance, regardless of whether installation is fully complete.
During the course of this Agreement each party may provide to the other information that it considers to be proprietary or confidential (“Confidential Information”). Each party agrees to use reasonable commercial efforts to mark its Confidential Information with a “Confidential” or “Proprietary” legend. Each party shall hold the other’s Confidential Information in confidence, use it only to further the purposes of this Agreement and not reveal it to any third party. Each party shall disseminate the other’s Confidential Information only to those of its employees, contractors or consultants who have a need to know such information for the furtherance of this Agreement, and who have executed appropriate agreements requiring them to maintain the confidentiality of such Confidential Information. Each party’s obligations shall not extend to information generally available to or known to the public, known prior to its disclosure by the other party, independently developed, or lawfully disclosed to it by a third party. The foregoing shall not restrict any disclosure by either party required by law or government authority, provided that it gives the other party reasonable notice and opportunity to seek a protective order or other method of limiting the scope of such disclosure.
Customer acknowledges that the Software is of U.S. origin and subject to U.S. export jurisdiction. Customer agrees to comply with all applicable international and national laws that apply to the Software, including the U.S. Export Administration Regulations, as well as end-user, end-use, and destination restrictions issued by U.S. and other governments.
CSPi shall indemnify, defend and hold Customer harmless from and against any claims, actions, or demands alleging that the Software, or any part thereof, directly infringes or misappropriates any United States patent, trademark, copyright, or trade secret right of any third party, provided that Customer promptly notifies CSPi of any such claim, allows CSPi to control the defense and provides reasonable information and assistance to CSPi (at CSPi’s expense) in the defense of the claim. Customer shall permit CSPi to replace or modify any affected Software to avoid infringement, or to procure for Customer the right to continue to use such Software. If neither of such alternatives is reasonably possible, CSPi may require Customer to cease using the Software and CSPi’s sole liability in regard shall be to refund to Customer any License fees paid by Customer for periods after such cessation of use. CSPi shall have no obligation with respect to claims, actions, or demands to the extent that they are based upon (i) the combination of Software with any items not supplied by CSPi, (ii) any modification or change to the Software by Customer, (iii) any failure by Customer to implement modifications or replacements distributed by CSPi to address any alleged infringement or (iv) any intellectual property right in which Customer or any affiliate of Customer has a proprietary interest. This Section states the entire liability of CSPi with respect to indemnification or liability for infringement of patents, copyrights or other proprietary rights by the Software or any part thereof or by their use or operation.
Hardware Lease Addendum
This Hardware Lease Addendum (“Addendum”) is an addendum to the Software Subscription License Agreement (“Agreement”). All terms defined in the Agreement shall have the same meaning in this Addendum
Whereas, pursuant to the Agreement Customer has subscribed to the right to use certain CSPi Software (the “Software” and the “Subscription”) as more detailed in a written quotation provided by CSPi (the “Quotation”); and
Whereas, Customer desires to lease such Hardware from CSPi, for use with the Software; and
Whereas, the parties desire in this Addendum to supplement the Agreement and establish the terms for such lease;
Now, therefore, the parties agree as follows:
Lease CSPi hereby leases to Customer and Customer hereby leases from CSPi the Hardware listed in the attached Quotation. Notwithstanding anything in the Agreement, title to the Hardware shall not pass from CSPi to Customer. The Customer shall use the Software on the Hardware on which it is installed upon delivery and on any replacement Hardware provided hereunder.
Lease Term Customer shall lease the Hardware from CSPi for a period (“Lease Term”) beginning upon Delivery and extending to be co-terminus with the Customer’s Subscription to use the Software installed on the Hardware. The initial Term shall be as stated in the Quotation, but the Term may be extended if and when the Customer extends its Subscription to the Software.
Annual Lease Fee For and in consideration of the lease of the Hardware hereunder, Customer shall pay to CSPi the Annual Lease Fee listed in the Quotation for the term of the agreement. The Lease Fee shall be paid annually in advance, within thirty days of Delivery hereunder. Customer acknowledges that a Lease Fee shall be due to CSPi in respect of the period from Delivery until Customer returns the Hardware as described in Section 4 below.
Return Customer shall return the Hardware at the end of the Lease Term freight prepaid, to CSPi at the address listed above, in the same condition as when the Hardware was delivered by CSPi, reasonable wear and tear excepted. Return shall be effective upon receipt of the Hardware by CSPi at its loading dock. Customer shall bear the risk of loss of the Hardware from Delivery until return is effected, and if the Hardware is lost or destroyed then Customer shall pay the list price for the Hardware, as depreciated over a five year period, within thirty days of the loss or destruction of the Hardware.
Service and warranty Customer understands and acknowledges that all support and maintenance for the Hardware shall be provided by the manufacturer. Should the Hardware malfunction, Customer shall contact CSPi which shall coordinate the repair or replacement of the defective Hardware component. Except for the support and maintenance provided by the manufacturer, the Hardware is provided to Customer “as is,” with no warranties of any kind. CSPI SPECIFICALLY DISCLAIMS ALL STATUTORY OR IMPLIED WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR AP ARTICULAR PURPOSE.
Termination of the Agreement Should the Agreement terminate or expire, for any reason, or should Customer’s Subscription to use the Software installed on any particular item of Hardware expire without being renewed, then Customer shall have fifteen days to return the Hardware.
Supplement to Agreement The parties agree that this transaction shall be governed by the terms of the Agreement, except as expressly amended and supplemented by the terms of this Addendum.