Reseller Agreement

These Bloodhound Terms of Service (this “Agreement”) is entered into by and between Specter Ops, Inc., a Delaware corporation (“SpecterOps”), and your company (“Reseller”).

IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT TO US THAT YOU HAVE THE LEGAL AUTHORITY TO BIND SUCH LEGAL ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, AND THAT ALL REFERENCES TO “CUSTOMER,” IN THIS AGREEMENT SHALL MEAN SUCH ENTITY.  IF YOU DO NOT HAVE SUCH AUTHORITY OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND YOU MAY NOT USE THE SERVICE. IF YOUR COMPANY HAS AN EXISTING MASTER AGREEMENT IN PLACE WITH SPECTEROPS THAT GOVERNS THE PROVISION OF THE SERVICE, YOUR USE OF THE SERVICE IS SUBJECT TO THAT AGREEMENT.

WHEREAS, SpecterOps is in the business of supplying network security software as a service and related services to companies;

WHEREAS, Reseller is a company that desires the use of BloodHound Enterprise software application products and services;

WHEREAS, Reseller desires to have SpecterOps provide Services to Customer. 

WHEREAS, SpecterOps and Reseller desire to enter into this Agreement defining their respective rights and responsibilities and memorializing the terms and conditions pursuant to which SpecterOps will provide to Customer the Services for a fee.

NOW, THEREFORE, in consideration of the mutual promises and agreements contained herein, the parties intending to be legally bound hereby agree as follows:

1.     CONSTRUCTION

Capitalized terms (whether in the singular or plural) shall have the meanings assigned in the text of this Agreement, including the Terms of Use set forth in Exhibit A, and its exhibits and addenda.  Reseller shall submit orders to SpecterOps for acceptance based on the order template attached hereto as Exhibit B (each, an “Order”), and each submitted Order shall identify the applicable Customer.  SpecterOps may reject an Order for any reason in its sole discretion, however, SpecterOps approval shall not be unreasonable withheld. Reseller may obtain advanced authorization for a particular proposed Order by submitting the Order to SpecterOps for pre-approval.  If the proposed Order is pre-approved in writing by SpecterOps, SpecterOps may not subsequently reject the pre-approved Order, unless use or access to the SpecterOps Services by the proposed Customer would have an adverse effect on SpecterOps’s business, as determined in SpecterOps’s reasonable discretion.

2.     DEFINITIONS

“Customer” means the Reseller’s customer specified in an applicable Order.

“End User” means an end user authorized to use SpecterOps Service for its intended use and not for remarketing.

“Reseller Offering” means any package that Reseller may offer to its customers based on the SpecterOps Service.

“SpecterOps Service” means the SpecterOps’s Bloodhound web-based software as a service offering, as set forth in one or more Order(s) placed by Reseller.

3.     LICENSE GRANTS

Subject to the terms and conditions of this Agreement (including any additional terms in documents referenced herein), SpecterOps grants to Reseller a non-exclusive, non-transferable, revocable license to market, resell access to the SpecterOps Service, subject to one or more applicable Order(s) hereunder.  SpecterOps agrees to provide Reseller with product information, instructional and support documentation, marketing materials, promotional collateral and other materials related to the SpecterOps Service (“Documentation”). Any Documentation or demonstration provided to Reseller may only be used to support Reseller’s marketing, resale and Customer support efforts as described herein. Subject to the terms and conditions of this Agreement, SpecterOps grants to Reseller a limited, worldwide, non-exclusive, non-transferable license, without right of sublicense, during the term of this Agreement to reproduce, and distribute such documentation provided to Reseller by SpecterOps solely in connection with the SpecterOps Service. During the term of this Agreement, Reseller agrees to promptly provide SpecterOps a copy of any Documentation it creates as it relates to SpecterOps Service.

4.     PROPRIETARY RIGHTS

No Conveyance.  This Agreement and the rights granted hereunder, do not transfer or convey to Reseller any right, title or interest in or to SpecterOps Service, the Reseller Offering or any associated intellectual property rights, but only a limited right to promote and resell access to the Reseller Offering.

Use of SpecterOps Trademarks.  Reseller may display the SpecterOps trademarks, logos or other proprietary marks provided to Reseller or affixed to the SpecterOps Service (“SpecterOps Marks”) on a non-exclusive, non-transferable basis throughout the Term solely to promote the SpecterOps Service as permitted under this Agreement.  The SpecterOps Marks may not be used in connection with the promotion or sale of any of Reseller’s goods or services unrelated to SpecterOps Service without the prior, written consent of SpecterOps. In no event shall Reseller use SpecterOps Marks in a manner that misrepresents the nature of the parties’ relationship or in a manner that suggests SpecterOps endorses Reseller’s own products or services.  All rights to the SpecterOps Marks are reserved. Use of the SpecterOps Marks shall inure the benefit of SpecterOps.

Feedback.  If Reseller provides any feedback to SpecterOps concerning the functionality and performance of the SpecterOps Service (including identifying potential errors and improvements), Reseller hereby assigns to SpecterOps all right, title, and interest in and to the feedback, and SpecterOps is free to use the feedback worldwide without payment or restriction.

5.     RESELLER OBLIGATIONS

Marketing and Promotion.  During the Term of this Agreement, Reseller shall use commercially reasonable efforts to promote, market and resell access to the Reseller Offering. SpecterOps may, in its sole discretion, provide Reseller, with a demonstration application for use in demonstrating the Reseller Offering to potential customers (“Demo Application”). SpecterOps makes no representations or warranties as to the Demo Application use and hereby disclaims all liability as to its use to the maximum extent permitted by applicable law.

Customer Information.  Reseller is responsible for maintaining accurate account information for all Customers to whom they have sold the Reseller Offering. SpecterOps may request customer contact information for Reseller accounts for purposes of monitoring account access. Upon request, Reseller shall promptly provide accurate and current customer information.

Customer and End User License Agreements.  The Reseller Offering shall be made available to Customers under separate terms and conditions provided by SpecterOps to Reseller, including an End User License Agreement (the “Terms of Use”) that specifies the applicable end user licensing terms.  Such Terms of Use shall not be modified, altered, added to or deleted by Reseller.  SpecterOps’s current approved Terms of Use are set forth in Exhibit A.  The parties understand and agree that a Customer’s access to the Reseller Offering is conditioned upon Customer’s acceptance of the Terms of Use. Reseller shall require that each Customer agree to be bound by the Terms of Use and any other terms as agreed upon by Reseller and SpecterOps.  The foregoing may be accomplished by the Customer executing an ordering document with Reseller specifying that the Reseller Offering is provided subject to the Terms of Use (and including a reference to or attaching such Terms of Use). Reseller will provide proof of an applicable Customer’s acceptance of the Terms of Use upon request by SpecterOps.

Restrictions.  Nothing herein grants Reseller the right to use or access the Reseller Offering for its own internal use or to modify, translate, change, disassemble or reverse engineer the Reseller Offering, in whole or in part.

6.     FEE, TERMS, AND PAYMENT

Reseller Offering.  Reseller will work with SpecterOps to create one or more packages that Reseller may offer to its Customers (each, a “Reseller Offering”). SpecterOps will provide Reseller with SpecterOps’s pricing for the applicable agreed upon package and Reseller will attempt to sell that package to Reseller’s Customers, subject to one or more corresponding Order(s), as described above. For the avoidance of doubt, SpecterOps does not dictate Reseller’s pricing for the Reseller Offering; however, in the event that SpecterOps is not comfortable with the pricing of Reseller Offering(s), SpecterOps has the right to terminate this Agreement upon thirty (30) calendar days prior written notice.

Financial Terms.  Reseller shall pay license fees and service fees set forth in one or more Order(s) within thirty (30) days of the applicable Order.

Customer Billing and Collection.  Reseller will be solely responsible for billing Customers for the Reseller Offering it sells them and for collection of fees there from.  Reseller hereby acknowledges and affirms that Reseller’s payment obligations to SpecterOps must be satisfied in full, irrespective of Reseller’s billing or collection status with any Customer.

Terms.  In no event shall additional or different terms in any End User or Customer agreement, addendum or third-party purchase order be deemed to supersede, modify or amend the terms of this Agreement and associated Exhibits, unless such modification is expressly agreed upon by the parties and signed by a duly authorized representative of SpecterOps.

7.     TERM & TERMINATION

Term.  This Agreement will commence upon the Effective Date and continue for a period of one (1) year unless this Agreement is terminated earlier in accordance with the terms of this Agreement. This Agreement will automatically renew for additional successive one (1) year terms (each a “Renewal Term”) unless at least thirty (30) calendar days before the end of the then-current term, either party provides written notice of its intention not to renew.

Termination for Cause.  Either party may terminate this Agreement if the other party materially breaches this Agreement and such breach has not been cured within fifteen (15) calendar days of receiving written notice of the material breach from the non-breaching party. SpecterOps may terminate this Agreement immediately, if SpecterOps determines that Reseller is acting, or has acted, in a way that has or may negatively reflect on or affect SpecterOps, SpecterOps prospects, or SpecterOps customers.

Post-Termination Obligations.  If this Agreement is terminated for any reason, Reseller shall cease all further promotion and resale of Reseller Offering and immediately return all Documentation, materials and other items provided by SpecterOps in connection with this Agreement.  Reseller shall continue to support Reseller Accounts for the remainder of the applicable then-current subscription term unless otherwise notified by SpecterOps.

Survival of Payment Obligations.  Reseller will not be relieved of outstanding payment obligations upon the expiration or termination of this Agreement, and upon such expiration or termination, amounts owed to SpecterOps hereunder shall be immediately due and payable. If this Agreement is terminated by Reseller for cause, Reseller will be entitled a pro rata refund of unused fees.

8.     WARRANTIES

Mutual Warranties.  Each party represents and warrants to the other that it is duly authorized to execute this Agreement and perform the obligations set forth herein.

Disclaimer.  THE SPECTEROPS SERVICE AND ANY SPECTEROPS TRAINING, INSTRUCTION AND SUPPORT OR OTHER SERVICES PROVIDED IN CONNECTION WITH THIS AGREEMENT (COLLECTIVELY, “SERVICES”) ARE PROVIDED STRICTLY ON AN “AS IS” BASIS.  ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR SATISFACTORY RESULTS ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY SPECTEROPS, ITS SUPPLIERS AND ITS LICENSORS.  Reseller acknowledges and agrees that Service may be subject to interruption, limitations, delays, and other problems inherent in the use of Internet applications and electronic communications.  SpecterOps is not responsible for any such delays, delivery failures, or any other damage resulting from events beyond SpecterOps’s reasonable control, without regard to whether such events are reasonably foreseeable by SpecterOps.

9.     LIABILITY/TOTAL LIABILITY

Limitation.  RESELLER’S EXCLUSIVE REMEDY AND SPECTEROPS’S, ITS SUPPLIERS’ AND LICENSORS’ TOTAL AGGREGATE LIABILITY RELATING TO, ARISING OUT OF, IN CONNECTION WITH, OR INCIDENTAL TO THIS AGREEMENT, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNIFICATION OR ANY OTHER CLAIM SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES INCURRED BY RESELLER, UP TO THE AGGREGATE AMOUNTS PAID BY RESELLER AND RECEIVED BY SPECTEROPS HEREUNDER DURING THE TWELVE MONTHS IMMEDIATELY PRECEEDING THE APPLICABLE CLAIM.  THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THIS AGREEMENT WILL NOT ENLARGE OR EXTEND THIS LIMITATION OF DAMAGES.  RESELLER HEREBY RELEASES SPECTEROPS, ITS SUPPLIERS AND LICENSORS FROM ALL OBLIGATIONS, LIABILITY, CLAIMS OR DEMANDS IN EXCESS OF THIS LIMITATION.  THE PROVISIONS OF THIS SECTION DO NOT WAIVE OR LIMIT PARTIES ABILITY TO OBTAIN INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR BREACH OF THIS AGREEMENT.

Exclusion of Certain Damages and Limitations of Types of Liability.  IN NO EVENT WILL PARTIES BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR PUNITIVE DAMAGES, OR LOST PROFITS OR LOST REVENUE ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SERVICE.  THE FOREGOING EXCLUSION AND LIABILITY LIMITATIONS APPLY EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IN THE EVENT OF STRICT OR PRODUCT LIABILITY.

10.  INDEMNIFICATION

Reseller.  Reseller shall indemnify and hold SpecterOps and its suppliers and licensors harmless from and against any and all third party claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of (i) any claim by a Customer or End User that is based on any warranty, representation or statement made by Reseller to a Customer or End User that is materially different from the warranties, representations or statements made by SpecterOps regarding SpecterOps Service and the Reseller Offering; or (ii) a breach of this Agreement by Reseller, its successor or permitted assigns.

SpecterOps.  SpecterOps shall indemnify and hold Reseller harmless from and against any and all third party claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of a third party claim that the SpecterOps Service infringes the intellectual property rights of any third party.

Process.  A party seeking indemnification hereunder shall promptly notify in writing the other party of any claim for which defense and indemnification is sought.  Each party agrees that it will not, without the other’s prior written consent, enter into any settlement or compromise of any claim that: (a) results, or creates a likelihood of a result, that in any way diminishes or impairs any right or defense that would otherwise exist absent such settlement or compromise; or (b) constitutes or includes an admission of liability, fault, negligence or wrongdoing on the part of the other party.  Each indemnifying party has the sole right to control the defense of any claim for which it is providing indemnification hereunder with counsel mutually acceptable to the parties.  The indemnified party may, at its own expense, participate in the defense of any such claim.

11.  COMPLIANCE WITH LAWS AND ETHICAL DEALINGS

Parties will be familiar and will strictly comply with all laws and regulations on bribery, corruption, and prohibited business practices. Supplier and its Affiliates have not and will not, for the purpose of influencing or inducing anyone to influence decisions in favor of Reseller or its Affiliates, offer, promise or make or agree to make, directly or indirectly, (a) any political contributions of any kind or any payment to or for the benefit of any public official, whether elected or appointed, (b) any payments for gifts, meals, travel or other value for a government employee or his/her family members or (c) any payments or gifts (of money or anything of value) to anyone. Reseller shall not reimburse SpecterOps for any such political contributions, payments or gifts. Affiliates are entities that control, are controlled by, or are under common control with, a party to this Agreement.

12.  ADDITIONAL TERMS

SpecterOps shall not be bound by any subsequent terms, conditions or other obligations included in any Reseller purchase order, receipt, acceptance, confirmation or other correspondence from Reseller unless expressly assented to in writing by SpecterOps and counter-signed by its authorized agent.  The parties may supplement the terms of this Agreement at any time by signing a written addendum, which shall be deemed incorporated by this reference upon execution.  The terms of any addendum shall control any conflicting terms in this Agreement.  Unless expressly stated otherwise in an applicable addendum, all addenda shall terminate upon the expiration or termination of this Agreement. The parties acknowledge and agree that the relationship between them is that of independent contractors, and nothing in this Agreement shall be construed as making either party or any of its employees an employee, partner, agent, franchisee or representative of the other party.  Neither Party has the power to bind the other or incur obligations on the other’s behalf, including the entering into or modifying of contracts, whether oral or written, except as expressly permitted in this Agreement.  Without limitation, Reseller shall not make any warranties, guaranties or purport to grant Customer any additional rights on behalf of SpecterOps beyond those expressly permitted in this Agreement.

13.  NOTICES

Either party may give notice to the other party by means of electronic mail to the primary contact designated on the Order or by written communication sent by first class mail or pre-paid post, either of which shall constitute written notice under this Agreement.

All access licenses purchased by Reseller during the Term shall be subject to the terms of this Agreement.  For clarity, in no event shall any other term or provision of this Agreement be deemed modified, amended or altered as a result of such purchase and all other changes to this Agreement shall be governed by terms set forth herein.

14.  SEVERABILITY

If any part of this Agreement is found to be illegal, unenforceable, or invalid, the license will immediately terminate, and the remaining portions of this Agreement will remain in full force and effect. All disclaimers, limitations and restrictions of warranty shall survive termination of this Agreement.

15.  NO ASSIGNMENT

This Agreement may not be transferred or assigned by Reseller, including by operation of law, in connection with a merger, acquisition or sale of assets related to Reseller, without the prior written consent of SpecterOps.

16.  FORCE MAJEURE

Reseller acknowledges and agrees that SpecterOps Service may be subject to interruption, limitations, delays, and other problems inherent in the use of Internet applications and electronic communications.  SpecterOps is not responsible for any such delays, delivery failures, or any other damage resulting from events beyond SpecterOps’s reasonable control, without regard to whether such events are reasonably foreseeable by SpecterOps.

17.  GENERAL PROVISIONS

This Agreement shall be governed by Delaware law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction to the contrary.  No joint venture, partnership, employment, agency or exclusive relationship exists between the parties as a result of this Agreement or use of the Service.  The failure of SpecterOps to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision.  All disclaimers, limitations, payment obligations and restrictions of warranty shall survive termination of this Agreement, as well as the provisions of this “General” section shall survive termination of this Agreement.   This Agreement, together with the following exhibits, comprises the entire agreement between Reseller and SpecterOps and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein:

  • Exhibit A “BloodHound EnterpriseTerms of Use”
  • Exhibit B “Order Form”

 

Exhibit A

Bloodhound Enterprise Terms of Use

This BloodHound Enterprise Subscription Agreement (“Agreement”) is entered into by and between Specter Ops, Inc., a Delaware corporation with its principal place of business at the address identified above (“SpecterOps”), and the customer (the “Customer”) identified in one or more orders accepted in writing by SpecterOps or a SpecterOps authorized reseller (each an “Order”).  This Agreement sets forth the terms and conditions under which SpecterOps agrees to provide, and Customer agrees to obtain, access to the SpecterOps online services described herein, and will replace and supersede any previous agreements between the parties with respect to the Service.

1.      CONSTRUCTION. Capitalized terms (whether in the singular or plural) shall have the meanings assigned in the text of this Agreement, including the initial order set forth in Exhibit A (the “Order”), and its exhibits and addenda.

2.      SOFTWARE AS A SERVICE.

2.1    Access.  Commencing on the Effective Date of this Agreement, SpecterOps shall make available to Customer the SpecterOps software identified in the Order as hosted by SpecterOps for use by Customer within the use limitations set forth in the Order (the “Service”) under the terms of this Agreement.

2.2    Rights to  the Service.  Subject to the terms and conditions of this Agreement, SpecterOps hereby grants Customer a non-exclusive, non-transferable, worldwide right during the Term to access the Service and permit the number of individual users specified in the Order to use the Service solely for Customer’s internal purposes up to the limits set forth in the applicable Order (“Authorized Users”).

2.3    Updates.  At no charge to Customer, SpecterOps shall install on its servers any software updates deemed reasonably necessary to address errors, bugs or other performance issues in the Service (collectively, “Updates”).  Updates (if any) shall be subject to the same terms and conditions of this Agreement.

2.4    Restrictions and Conditions.   Customer shall not, directly, indirectly or through its Authorized Users, employees and/or the services of independent contractors: (a) attempt to sell, transfer, assign, rent, lend, lease, sublicense or otherwise provide third parties rights to the Service; (b) “frame,” “mirror,” copy or otherwise enable third parties to use the Service (or any component thereof) as a service bureau or other outsourced service; (c) allow access to the Service by multiple individuals impersonating a single end user; (d) use the Service in a manner that interferes with, degrades, or disrupts the integrity or performance of any SpecterOps technologies, services, systems or other offerings, including data transmission, storage and backup; (e) use the Service for the purpose of developing a product or service that competes with the SpecterOps online products and services; (f) circumvent or disable any security features or functionality associated with Service; or (g) use the Service in any manner prohibited by law.  All rights not expressly granted to Customer are reserved by SpecterOps, its suppliers and licensor.

3.      DATA PROTECTION AND CONFIDENTIALITY.

3.1    Safeguards. SpecterOps shall implement and maintain administrative, physical and technical safeguards that prevent any unauthorized use, access, processing, destruction, loss, alteration, or disclosure of any of Customer’s data (“Customer Data”) as may be held or accessed by SpecterOps. Such information security program will include, without limitation: (i) appropriate physical security of all premises in which Customer Data will be processed or stored; (ii) reasonable precautions taken with respect to the employment of and access given to SpecterOps personnel; and (iii) an appropriate network security program (which includes, without limitation, encryption of sensitive or private data). SpecterOps agrees not to utilize any Customer Data unless it is necessary to do so in order to fulfill an obligation under this Agreement and will not sell or rent any Customer Data.

3.2    Notification of Security Breach. SpecterOps will notify Customer immediately following discovery of any breach or compromise of the security, confidentiality, or integrity of any Customer Data. Written notification provided pursuant to this paragraph will include a brief summary of the available facts, the status of SpecterOps’ investigation, and if known and applicable, the potential number of persons affected by release of data.

3.3    Confidentiality.  Each party agrees that, without the express consent of the other party, none of its employees or agents will disclose to any third party any information or material that (i) the other party designates as confidential or (ii) should be reasonably understood to be confidential (including without limitation the terms and conditions of this Agreement) unless such information or material (a) is or becomes publicly known through no wrongful act of the receiving party, (b) is received from a third party without restriction and without breach of any confidentiality obligation to the other party, (c) is independently developed by the receiving party, or (d) is required by law to be disclosed (provided that the other party is given advance notice of, and an opportunity to, contest any such requirement).

4.      PROPRIETARY RIGHTS

4.1    BloodHound Enterprise Service.  As between SpecterOps and Customer, all right, title and interest in the Service, and any other materials furnished or made available hereunder, and all modifications and enhancements thereof, including all copyright rights, patent rights and other intellectual property rights in each of the foregoing, belong to and are retained solely by SpecterOps or SpecterOps’ licensors and providers, as applicable.  Customer hereby does and will grant an unrestricted, non-exclusive, royalty-free, perpetual license to SpecterOps with respect to any and all evaluations, ideas, feedback and suggestions made by Customer to SpecterOps regarding the Service (collectively, “Feedback”) and all intellectual property rights therein, for use and exploitation in connection with SpecterOps’ business.

4.2    Customer Data.  As between SpecterOps and Customer, all right, title and interest in Customer Data and all intellectual property rights thereto belong to and are retained solely by Customer.  Customer hereby grants to SpecterOps a limited, non-exclusive, royalty-free, worldwide license to use the Customer Data and perform all acts with respect to the Customer Data as may be necessary for SpecterOps to provide the Service to Customer.

5.      SERVICES. Additional support services, including custom configuration, consulting, training and system integration, may be separately purchased from SpecterOps or a SpecterOps authorized reseller under the terms of an addendum to this Agreement.  For clarity, SpecterOps has no obligation to support Customer’s own technology, internal infrastructure, provide free training, or provide consulting on Customer created content or third-party technologies and services unless mutually agreed to in writing via an approved sales agreement and or statement of work.

6.      CUSTOMER OBLIGATIONS.

6.1    Compliance with Laws.  The SpecterOps software and Service are of U.S. origin.  Customer shall adhere to all applicable state, federal, local and international laws and treaties in all jurisdictions in which Customer uses the Service, including all end-user, end-use and destination restrictions issued by U.S. and other governments and the U.S. Export Administration Act and its associated regulations.  Customer will not upload any data or information to the Service for which Customer does not have full and unrestricted rights, or that would subject SpecterOps to any third party obligations.

6.2    No Legal or Professional Advice.  The Service should be used for informational purposes only and is not intended as legal advice. If Customer makes decisions in reliance on information it receives in connection with the Service, it does so at its own risk and SpecterOps, its employees, and its agents will not be liable for any losses that it may sustain. Customer should not make any business or legal decision without first conducting its own research and due diligence, and consulting with a legal professional.  To the maximum extent permitted by law, SpecterOps disclaims any and all liability in the event any information, commentary, analysis, opinions, advice or recommendations on the Service are inaccurate, incomplete or unreliable or result in any specific decision or other losses. Customer alone is solely responsible for determining its compliance with applicable law.

7.      TERM AND TERMINATION.

7.1    Term.  Unless otherwise specified in the Order, the initial term of this Agreement will begin on the Effective Date and shall continue thereafter until the End Date specified in the Order (the “Term”).  If no End Date is specified in the Order, the End Date will be one year from the Effective Date of this Agreement. The parties may renew an Order by mutual agreement. If an Order is renewed, the Term will also be renewed.

7.2    Termination.  Either party may terminate this Agreement if the other party materially breaches this Agreement and such breach is not cured within thirty (30) days of providing notice thereof.  SpecterOps may terminate this Agreement at any time in the event that it does not receive payment in full from the applicable SpecterOps reseller with respect to Customer’s Order.

7.3    Effect of Termination.  Upon expiration or termination for any reason, Customer shall discontinue all use of the Service, and return any and all software and documentation provided to Customer by SpecterOps.

8.      INDEMNIFICATION.

8.1    Customer.  Customer shall indemnify and hold SpecterOps, its suppliers and licensors harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with a claim which, if true, would constitute a breach of Customer’s obligations under Section 2 of this Agreement.

8.2    SpecterOps.  SpecterOps shall indemnify and hold Customer harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of a third-party claim that the Service infringes or misappropriates any U.S. patents issued as of the Effective Date or any copyright or trade secret of any third party during the term of this Agreement.  SpecterOps shall have no indemnification obligation, and Customer shall indemnify SpecterOps pursuant to this Agreement, for claims of infringement arising from the combination of Service with any unique aspects of Customer’s business, for instance Customer’s content, products, services, hardware or business processes, or for any use of the Service or any SpecterOps software not expressly authorized herein or in SpecterOps documentation.

8.3    Process.  A party seeking indemnification hereunder shall promptly notify in writing the other party of any claim for which defense and indemnification is sought.  Each party agrees that it will not, without the other’s prior written consent, enter into any settlement or compromise of any claim that: (a) results, or creates a likelihood of a result, that in any way diminishes or impairs any right or defense that would otherwise exist absent such settlement or compromise; or (b) constitutes or includes an admission of liability, fault, negligence or wrongdoing on the part of the other party.  Each indemnifying party has the sole right to control the defense of any claim for which it is providing indemnification hereunder with counsel mutually acceptable to the parties.  The indemnified party may, at its own expense, participate in the defense of any such claim.

9.      WARRANTY/ LIABILITY.

9.1    Mutual Warranties.  Each party represents and warrants to the other that it is duly authorized to execute this Agreement and perform the obligations set forth herein.

9.2    SpecterOps represents and warrants that (a) it owns or otherwise has sufficient rights in the Service to grant to Customer the rights described herein; (b) the functionality of the Service will not be materially decreased during the Term; (c) the Services provided under this Agreement or utilized by Customer will not infringe upon or violate any patent, trademark, copyright, trade secret or other proprietary right of any third party; (d) the Services do not contain any software code whose purpose is to disrupt, damage or interfere with Customer systems, software, or data (“Virus”) (e) the Service will perform in all material respects in accordance with the documentation based on the system specifications provided to Customer by SpecterOps.

9.3    Disclaimer.  EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICE AND ANY SPECTEROPS TRAINING, INSTRUCTION AND SUPPORT OR OTHER SERVICES PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED STRICTLY ON AN “AS IS” BASIS.  ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR SATISFACTORY RESULTS ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY SPECTEROPS, ITS SUPPLIERS AND ITS LICENSORS.

9.4    SPECTEROPS WILL USE COMMERCIALLY REASONABLE EFFORTS TO KEEP THE SERVICE AVAILABLE WITH AN UPTIME OF AT LEAST 99.5%, EXCLUDING SCHEDULED DOWNTIME, HOWEVER, CUSTOMER ACKNOWLEDGES AND AGREES THAT SERVICE MAY BE SUBJECT TO INTERRUPTION, LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF INTERNET APPLICATIONS AND ELECTRONIC COMMUNICATIONS.  SPECTEROPS IS NOT RESPONSIBLE FOR ANY SUCH DELAYS, DELIVERY FAILURES, OR ANY OTHER DAMAGE RESULTING FROM EVENTS BEYOND SPECTEROPS’S REASONABLE CONTROL, WITHOUT REGARD TO WHETHER SUCH EVENTS ARE REASONABLY FORESEEABLE BY SPECTEROPS.  SPECTEROPS WILL USE REASONABLE EFFORTS TO PROVIDE CUSTOMER WITH NOTICE (INCLUDING THROUGH A MESSAGE IN THE SERVICE) OF SCHEDULED DOWNTIME AT LEAST ONE WEEK IN ADVANCE.

9.5    Limitation.  SPECTEROPS’ TOTAL AGGREGATE LIABILITY RELATING TO, ARISING OUT OF, IN CONNECTION WITH, OR INCIDENTAL TO THIS AGREEMENT, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNIFICATION OR ANY OTHER CLAIM SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES INCURRED, UP TO THE AGGREGATE AMOUNTS PAID TO SPECTEROPS IN EXCHANGE FOR THE SERVICES PROVIDED HEREUNDER DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE APPLICABLE CLAIM.  THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THIS AGREEMENT WILL NOT ENLARGE OR EXTEND THIS LIMITATION OF DAMAGES.

9.6    Exclusion of Certain Damages and Limitations of Types of Liability.  IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR PUNITIVE DAMAGES, OR LOST PROFITS OR LOST REVENUE ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SERVICE.  THE FOREGOING EXCLUSION AND LIABILITY LIMITATIONS APPLY EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IN THE EVENT OF STRICT OR PRODUCT LIABILITY.

10.   NOTICES AND REQUESTS. Either party may give notice to the other party by means of electronic mail to the primary contact designated on the Order or by written communication sent by first class mail or pre-paid post, either of which shall constitute written notice under this Agreement.  All additional access licenses purchased by Customer during the Term shall be subject to the terms of this Agreement.

11.   GENERAL. This Agreement shall be governed by Virginia law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction to the contrary.  No joint venture, partnership, employment, agency or exclusive relationship exists between the parties as a result of this Agreement or use of the Service.  The failure of SpecterOps to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision.  All disclaimers, limitations, payment obligations and restrictions of warranty shall survive termination of this Agreement, as well as the provisions of this “General” section shall survive termination of this Agreement.   If any part of this Agreement is found to be illegal, unenforceable, or invalid, Customer’s right to use the Service will immediately terminate, except for those provisions noted above which will continue in full force and effect.  This Agreement, together with the following exhibits, comprises the entire agreement between Customer and SpecterOps and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.

 

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