END USER LICENSE AGREEMENT
THIS END USER LICENSE AGREEMENT (THIS “AGREEMENT”) GOVERNS YOUR USE OF THE RELIAQUEST GREYMATTER SOFTWARE PLATFORM AND ANY RELATED RELIAQUEST SOFTWARE, APPLICATIONS, OR SERVICE TOOLS (COLLECTIVELY REFERRED TO AS “GREYMATTER”) PROVIDED BY RELIAQUEST, LLC, ON BEHALF OF ITSELF AND ANY AFFILIATES PERFORMING HEREUNDER (COLLECTIVELY REFERRED TO AS “RELIAQUEST”). BY DOWNLOADING, ACCESSING, OR USING GREYMATTER OR AGREEING TO THESE TERMS (EITHER BY USING THE GREYMATTER PLATFORM, CLICKING OR CHECKING A BOX REFERNCING YOUR CONSENT TO ABIDE BY THIS AGREEMENT, OR PLACING AN ORDER FOR GREYMATTER) YOU: (1) ARE INDICATING THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT, AND AGREE TO BE LEGALLY BOUND BY IT ON BEHALF OF YOURSELF AND THE COMPANY OR OTHER LEGAL ENTITY FOR WHICH YOU ARE ACTING (“CUSTOMER”); AND (2) REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO ACT ON BEHALF OR BIND CUSTOMER TO THIS AGREEMENT. THESE TERMS AND CONDITIONS ARE BINDING AS OF THE EARLIEST OF THE DATE THAT YOU ACCEPT THIS AGREEMENT ON BEHALF OF CUSTOMER, THE DATE SET FORTH ON AN ORDER, OR THE DATE ON WHICH YOU OR CUSTOMER DOWNLOADS, INSTALLS, ACTIVATES, ACCESSES, OR USES THE GREYMATTER PLATFORM (THE “EFFECTIVE DATE”). CAPITALIZED TERMS USED BUT NOT OTHERWISE DEFINED IN THIS AGREEMENT ARE DEFINED IN SECTION 12.
1. GreyMatter License, Use Restrictions, and Ownership
a. License. Subject to Customer’s strict compliance with the terms of this Agreement, including Customer’s timely payment of all applicable fees, ReliaQuest grants Customer a non-exclusive, non-transferable, worldwide, non-sublicensable license during the Order Term to access and use GreyMatter and any other ReliaQuest Materials identified in an Order or provided to Customer, if any, as follows:
i. any Evaluation GreyMatter shall be used solely to evaluate whether Customer wishes to purchase a commercial license for GreyMatter and at all times solely for Customer’s Internal Use in accordance with the capacity or volume restrictions contained in the Order, if any;
ii. any Free GreyMatter shall be used at all times solely for Customer’s Internal Use in accordance with the capacity or volume restrictions contained in the Order, if any;
iii. any Purchased GreyMatter shall be used at all times solely for Customer’s Internal Use in accordance with the capacity or volume restrictions contained in the Order, if any;
iv. any Security Tool Content provided by ReliaQuest any other ReliaQuest Materials shall be used solely in connection with the technology designated in the Order and solely for Customer’s Internal Use.
b. Restrictions. Unless otherwise expressly permitted by ReliaQuest in writing as an addendum to an Order, Customer will not and has no right to: (i) copy any portion of GreyMatter or any ReliaQuest Materials (except as required to run GreyMatter and for reasonable backup purposes); (ii) alter, publicly display, translate, modify, adapt, or create any derivative works of GreyMatter; (iii) rent, lease, loan, resell, transfer, sublicense, distribute, or otherwise provide access to GreyMatter to any third party; (iv) disassemble, decompile, or reverse-engineer any part of GreyMatter, or attempt to gain access to any source code, algorithms, methods, or techniques embodied in GreyMatter, except to the extent expressly permitted by applicable law notwithstanding a contractual prohibition to the contrary; (v) access or use any Disabled Functionality; (vi) conduct any stress tests, competitive benchmarking or analysis on, or publish any performance data from or related to GreyMatter; (vii) attempt to disable or circumvent any technological mechanisms intended to prevent, limit, or control use or copying of, or access to, any part of GreyMatter or any Disabled Functionality; (viii) remove or alter any notice of proprietary right appearing on GreyMatter or any ReliaQuest Materials; (ix) separately use any of the applicable features and functionalities of GreyMatter or any ReliaQuest Materials with external applications or code not furnished by ReliaQuest, except as otherwise specifically permitted in the Documentation; (x) misuse GreyMatter or use GreyMatter for any illegal, harmful, or fraudulent purposes; or (xi) encourage or assist any third party to do any of the foregoing. GreyMatter may be configured to display warnings, reduce available functionality, or cease functioning if unauthorized or improper use is detected, any usage restrictions are reached or exceeded, or the Order Term has expired. You shall notify ReliaQuest immediately if you learn of any unauthorized access or use of your user accounts or passwords for GreyMatter.
c. Ownership & Feedback. GreyMatter and all ReliaQuest Materials are licensed for Customer’s use and they are not sold to Customer. ReliaQuest and retains exclusive ownership to the Intellectual Property Rights associated with GreyMatter and all ReliaQuest Materials, and retains all worldwide right, title and interest (including all Intellectual Property Rights) therein, including in any such ideas, concepts, know how, documentation, or techniques developed or learned by ReliaQuest under this Agreement at any time during the Order Term. Except for the licenses expressly granted to Customer in Section 1(a) or as otherwise provided in this Agreement, Customer will not acquire or claim any right, title or interest in any GreyMatter or any ReliaQuest Materials or related Intellectual Property Rights, whether by implication, operation of law or otherwise. If Customer suggests any new features, functionality, or improvements for GreyMatter or any ReliaQuest Materials, ReliaQuest may use, implement and incorporate such new features, functionality, or improvements without any obligation to make any payment, share any profits or otherwise account to Customer, and such suggestions will not subject to any confidentiality restrictions under this Agreement or otherwise. All new features, functionality, and improvements for GreyMatter or any ReliaQuest Materials developed by ReliaQuest based on Customer’s suggestions will be the sole and exclusive property of ReliaQuest.
d. Open Source. GreyMatter may contain Open Source Software, whether or not identified in the end user Documentation. Open Source Software that is delivered as part of GreyMatter, which may not be removed or used separately from GreyMatter is covered by the warranty, support and indemnification provisions applicable to GreyMatter. Customer acknowledges that specific terms required by Open Source Software licensors may apply its use. ReliaQuest shall make reasonable efforts to include these terms in the documentation; however, these terms will not: (a) impose any additional restrictions on Customer’s use of GreyMatter, or (b) negate or amend ReliaQuest’s responsibilities with respect to GreyMatter.
e. Customer Vendors. Customer may permit or allow one or more Customer Vendor’s to use GreyMatter solely on Customer’s behalf in connection with providing services to Customer, subject to the terms and conditions of this Agreement and provided such Customer Vendor’s agree to confidentiality restrictions covering GreyMatter and any ReliaQuest Materials at least as stringent as the confidentiality restrictions under this Agreement and such Customer Vendor agrees not to disclose, distribute, or provide access to GreyMatter or any ReliaQuest Materials to any third-party at any time. Customer will be jointly and severally liable for all Customer Vendor actions relating to such Customer Vendor’s use of GreyMatter and any related ReliaQuest Materials. If at any time Customer revokes authorization to access GreyMatter from a Customer Vendor, then Customer is responsible for taking the actions necessary to revoke such access and prevent continued usage of GreyMatter by such Customer Vendor. In the event Customer requires ReliaQuest assistance with such revocation of access, Customer must contact ReliaQuest with written notice of such revocation or limitation and ReliaQuest will disable the Customer Vendor’s account access within a reasonable period of time.
f. Limitations. Notwithstanding anything to the contrary in this Agreement, ReliaQuest does not provide maintenance and support, warranties, or indemnification for Evaluation GreyMatter, Free GreyMatter, or any version of Purchased GreyMatter that is provided at no additional charge to Customer pursuant to any existing Order or other services provided.
2. Security Model Management Services. ReliaQuest will provide the security model management services as described or included in the applicable Order (“SMM Services”) in accordance with the following terms and conditions:
a. SMM Services. The terms of this Agreement apply to all Orders for SMM Services provided to Customer by ReliaQuest and are incorporated into and form a part of each Order. At all times subject to Customer’s payment of all applicable fees when due, ReliaQuest will provide will the SMM Services commence on a mutually agreed upon date or as otherwise identified in an Order. Estimates provided for SMM Services to be performed on a time-and-material basis are estimates only and not a guaranteed time of completion. SMM Service performed on a fixed fee basis are limited to the scope of services stated in the applicable Order.
b. Acknowledgement by Customer. With respect to any SMM Services provided by ReliaQuest to Customer, the Parties acknowledge and agree that, outside of log entries and log data generated from Customer’s applications, tools, and systems (collectively “Log Data”), ReliaQuest shall not have access to any other Customer Data on Customer’s systems and Customer shall not provide any other such data to ReliaQuest. In addition, ReliaQuest cannot guarantee that there will be no third-party security breaches, problems, or threats to Customer’s network or systems and Customer acknowledges and agrees that ReliaQuest is only being engaged to help identify such threats using and expressly agrees that ReliaQuest shall not be responsible under any circumstances in the event any such issues occur. Unless as otherwise agreed in writing, in no event will Customer provide access to or transmit to ReliaQuest (via Log Data or otherwise) any personally identifiable information, protected health information, or other personal information that is subject to data privacy or security laws or regulations.
c. Access to Systems and Data; Customer Materials Required to Perform SMM Services. Customer shall grant ReliaQuest the required and necessary access to Customer’s systems and Log Data (includ¬ing access via site to site VPN or Internet access) for ReliaQuest to perform the SMM Services specified in an Order. If Customer provides ReliaQuest access to any of Customer’s own or a third party’s soft¬ware or other materials for use by ReliaQuest in the performance of SMM Services, then Customer grants ReliaQuest a non-exclusive, royalty-free right and license (or sublicense) to use such software or materials to the extent necessary for ReliaQuest to perform its obligations under this Agreement.
d. Reimbursement of Travel and Living Expenses. Customer is responsible for the reasonable travel and living expenses of ReliaQuest personnel traveling to Customer’s site to perform SMM Services, which will be billed to Customer by ReliaQuest. ReliaQuest personnel will comply with ReliaQuest’s travel and expense reimbursement policies when traveling to Customer’s site.
e. Dependencies. Customer acknowledges that ReliaQuest’s ability to deliver all SMM Services are dependent upon Customer’s full and timely cooperation with ReliaQuest including, but not limited to compliance with the assumptions contained in a SOW, as well as the accuracy and completeness of any information and data Customer provides to ReliaQuest. In the event Customer fails to provide the required information, data or access needed for ReliaQuest to perform the SMM Services, or Customer fails to meet or comply with the assumptions contained in the SOW: (i) ReliaQuest’s SMM Services or provision of a Deliverable may be rescheduled, delayed, or postponed, (ii) the deadline or milestone for ReliaQuest to provide any such SMM Services or ReliaQuest Materials will be extended as a result of such delay, and (iii) ReliaQuest may adjust pricing to Customer to the extent the cost to perform the SMM Services for Customer is increased as a result of Customer’s failure to cooperate or provide the required information or data as specified above. For the avoidance of doubt, ReliaQuest shall not be required to meet, or be penalized in any manner for failure to meet, the service level commitments described in a SOW if, Customer fails to comply with the terms of this Section 2(e) during the period of such non-compliance.
f. Back-Up Data. ReliaQuest is not providing data back-up services and will not be responsible for loss or alteration of Customer data. Unless otherwise agreed in a SOW, Customer is responsible to back-up its own data, including any Customer Data and Log Data.
g. Ownership of Services and ReliaQuest Materials. All ReliaQuest Materials are licensed for Customer’s use and they are not sold to Customer. ReliaQuest and its third-party suppliers retain exclusive ownership to the intellectual property rights associated with the SMM Services and ReliaQuest Materials, and any such title and interest therein, including in any such ideas, concepts, know how, documentation, or techniques developed or learned by ReliaQuest during the performance of services under this Agreement or any Order. Unless otherwise expressly provided in an Order, ReliaQuest Materials are not considered works made for hire owned by Customer. All rights not expressly granted to Customer are reserved by ReliaQuest and there are no implied licenses. Notwithstanding the foregoing: (i) Customer Data shall remain as the sole and exclusive property of Customer; and (ii) any Security Tool Content provided by ReliaQuest to Customer under this Agreement and any associated Order may be retained by the Customer for Internal Use after the termination or expiration of the Order Term.
h. Ownership of Service Tools. ReliaQuest and its third-party suppliers shall retain exclusive ownership of all Service Tools and retain all intellectual property rights, title, and interest therein. Service Tools are not sold to Customer and Customer will not attempt to decompile, reverse engineer, or otherwise recreate the source code of a Service Tool. ReliaQuest may provide limited access for Customer to use a Service Tool, in whole or in part, at ReliaQuest’s sole discretion. Upon termination or expiration of an Order, ReliaQuest shall have the right to decommission and/or remove any and all parts of any Service Tools from Customer’s system and, in the event any Service Tools are retained by Customer after termination, Customer acknowledges and agrees that any such Service Tool may have limited or reduced functionality and ReliaQuest shall have no obligation to maintain, update, or support the operation or functionality of such Service Tools after the termination or expiration of this Agreement.
3. Subscription Fees.
a. Fees. Unless otherwise expressly set forth on the Order, Customer will pay the fees and amounts stated on each Order within thirty (30) days after receipt of the applicable invoice (the “Fees”). Except as otherwise expressly provided in this Agreement, all fees and other amounts are non-refundable when paid. Without limitation to ReliaQuest’s other termination rights under this Agreement or any Order, ReliaQuest may terminate this Agreement and all licenses granted under this Agreement by notice to Customer if Customer fails to pay the Fees when due.
b. Taxes. Fees are exclusive of any applicable sales, use, value added, withholding, and other taxes, however designated. Customer shall pay all such taxes levied or imposed by reason of Customer’s purchase of the software license or services hereunder, as applicable, except for taxes based on ReliaQuest’s income or with respect to ReliaQuest’s employment of its employees.
c. Licenses Temporary Until Paid For. All licenses granted under this Agreement are temporary until Customer has paid all applicable fees. The licenses may be canceled by ReliaQuest if the fees are not paid in accordance with the terms of the SOW. After all applicable fees are paid, the licenses granted under this Agreement are perpetual, unless a license term is specified in the SOW or the applicable Software Product or Service Tool license agreement. Customer will only use the licenses granted under this Agreement for internal purposes and shall not sublicense, resell, lease, rent, copy, or distribute the Software Products, Service Tools, SMM Services, or ReliaQuest Materials at any time. Licenses are granted to the object code versions of Software Products and Service Tools and Customer will not attempt to decompile, reverse engineer or otherwise recreate the source code. All rights not expressly granted are reserved by the licensor.
4. Statement of Verification; Audit Rights. Upon ReliaQuest’s written request, Customer will furnish ReliaQuest with a document signed by Customer’s authorized representative verifying that GreyMatter and any ReliaQuest Materials are being used in accordance with this Agreement and the applicable Order. Customer is responsible for implementing reasonable procedures to ensure its compliance with the terms of this Agreement and applicable terms of an Order. ReliaQuest may from time to time, but not more frequently than one (1) time in any calendar year, unless a material violation occurred in this period or is reasonably suspected by ReliaQuest, audit Customer’s and any Customer Vendor’s use of GreyMatter or any ReliaQuest Materials for the purpose of confirming that the GreyMatter are not being used in a manner that is prohibited by this Agreement or any applicable Order. Any audit will be conducted during regular business hours at Customer’s (and/or its Customer Vendor’) facilities, will not unreasonably interfere with Customer’s (or Customer Vendors’) business and will comply with Customer’s (or its Service Providers’) reasonable security procedures. Customer will (and will ensure that any Customer Vendor shall) provide ReliaQuest with reasonable access to all relevant records and facilities reasonably necessary to conduct the audit. If an audit reveals that Customer (and/or any Customer Vendor) has exceeded the the scope of Customer’s license grant during the period audited, then ReliaQuest will invoice Customer, and Customer will promptly pay ReliaQuest, any underpaid fees based on ReliaQuest’s price list in effect at the time the audit is completed in accordance with Section 3 of this Agreement. If ReliaQuest uncovers reasonable evidence that GreyMatter or any ReliaQuest Materials are being used in a manner that is prohibited by the terms of this Agreement, ReliaQuest may, in its sole discretion, immediately terminate this Agreement, and exercise any other remedies available at law or in equity. This Section 4 will survive expiration or termination of this Agreement for a period of one (1) year.
a. Nondisclosure Obligation. If ReliaQuest or Customer (“Recipient”) receives Confidential Information from the other Party (“Discloser”), then Recipient will protect such Confidential Information from disclosure by exercising at least the same degree of care it uses to protect its own similar information, and in any event not less than reasonable care.
b. Exceptions. The foregoing obligations will not apply to any Confidential Information that (i) is or becomes available to the public, other than by breach of a duty under this Agreement by Recipient, (ii) is in the rightful possession of the Recipient without an obligation of confidentiality, or (iii) is independently developed by Recipient without use of or reference to Confidential Information of Discloser.
c. Required Disclosures. Confidential Information may be disclosed by Recipient as required by a court or governmental authority of competent jurisdiction, provided that prior to any such disclosure Recipient provides Discloser with prompt written notice so that Discloser may seek an appropriate protective order. The confidentiality obligations under this Section 5 will survive the expiration or early termination of this Agreement not withstanding following the return or destruction of the Confidential Information.
d. Return or Destruction of Confidential Information. Upon termination of this Agreement or of support and maintenance, Recipient will, at Discloser’s option, promptly return or destroy all tangible items and embodiments containing or consisting of Confidential Information and provide written certification of this destruction or return by an authorized person.
e. Injunctive Relief. Recipient agrees that, due to the unique nature of the Confidential Information, the unauthorized disclosure or use of the Confidential Information will cause irreparable harm and significant injury to Discloser, the extent of which will be difficult to ascertain and for which there will be no adequate remedy at law. Accordingly, Recipient agrees that Discloser, in addition to any other available remedies, will have the right to an immediate injunction and other equitable relief enjoining any breach or threatened breach of this Section 5, without the necessity of posting any bond or other security. Recipient will notify Discloser in writing immediately upon Recipient’s becoming aware of any breach or threatened breach.
f. Service Metrics. ReliaQuest is constantly innovating and in order to provide the best possible experience for its customers, ReliaQuest may use Service Metrics for the purposes of providing, maintaining, protecting, and improving GreyMatter, the SMM Services, ReliaQuest’s services, and developing new services. ReliaQuest may combine Service Metrics related to GreyMatter or the SMM Services with information from GreyMatter or other SMM Services performed for third parties in order to improve the quality of GreyMatter, the SMM Services, and ReliaQuest’s other services. Customer agrees that ReliaQuest may use the Service Metrics for any purpose, including without limitation to: (a) carry out its obligations under this Agreement; (b) observe and report back to Customer on Customer’s usage of GreyMatter and the SMM Services, and make recommendations for improved usage of GreyMatter or the SMM Services; and (c) identify trends, publish reports, or otherwise use its findings in GreyMatter or during the performance of services for other customers of ReliaQuest. Customer acknowledges and agrees that ReliaQuest owns all legal right, title, and interest in the Service Metrics, including any intellectual property rights which subsist in the Service Metrics (whether those rights happen to be registered or not, and wherever in the world those rights may exist); provided, however, the foregoing ownership provision for Service Metrics expressly excludes any Customer Data and any other Confidential Information of Customer. Customer further acknowledges that any Service Metrics provided to Customer may contain information which is designated confidential by ReliaQuest and that Customer shall not disclose such information, other than as authorized in this Section 5, without ReliaQuest’s prior written consent.
6. Warranties & Disclaimer
a. Purchased GreyMatter Warranty. Unless as otherwise provided in this Agreement, upon Delivery, ReliaQuest warrants that Purchased GreyMatter will substantially perform in accordance with the material functions described in ReliaQuest’s user Documentation referenced in an Order, when used in accordance with such Documentation and at the time of Delivery, there is no Virus in the version of Purchased GreyMatter provided by ReliaQuest to Customer. Notwithstanding the forgoing warranty, the warranty for the following components of GreyMatter is limited as follows:
b. No Warranty for Free or Evaluation Versions of GreyMatter. For any version of GreyMatter classified as Evaluation GreyMatter or Free GreyMatter, ReliaQuest is providing such version “AS IS” without warranty of any kind and will not create any obligation for ReliaQuest to continue to develop, support, repair, offer for sale, or in any other way continue to provide or develop any such feature of GreyMatter for Customer.
c. SMM Services Warranty. Unless as otherwise provided in this Agreement, ReliaQuest warrants that all SMM Services will be performed by ReliaQuest in a professional and workmanlike manner and in accordance with the reasonable industry standards for performance of such services.
d. ReliaQuest Materials Warranty. ReliaQuest warrants that any ReliaQuest Materials, including any Security Tool Content, as delivered will be free of any harmful viruses, trojan horses, or other harmful or malicious code.
e. Exclusive Remedies.
i. Breach of GreyMatter Warranty. If a version of Purchased GreyMatter does not conform to the warranty set forth in Section 6(a), and Customer notifies ReliaQuest in writing during the ninety (90) day period following Delivery of Purchased GreyMatter, identifying the failure to conform and breach of warranty with specificity in such notice, ReliaQuest will make reasonable efforts to correct any non-conformance or breach that is confirmed by ReliaQuest within a reasonable period of time by doing one of the following, at ReliaQuest’s sole discretion, ReliaQuest shall either: (1) modify, or provide an updated version of, the Purchased GreyMatter so that it conforms to the foregoing warranty, or (2) terminate the license with respect to the non-conforming Purchased GreyMatter and refund the Fees paid by Customer for the non-conforming Purchased GreyMatter. The sole liability of ReliaQuest (and its Affiliates and suppliers/licensors) This Section 6(e)(i) states ReliaQuest’s entire liability for warranty claims under Section 6(a) relating to Purchased GreyMatter and ReliaQuest will have no further obligation to Customer with respect to such Purchased GreyMatter.
ii. Breach of SMM Services or ReliaQuest Materials Warranty. If any SMM Services do not conform to the warranty set forth in Section 6(c) or any ReliaQuest Materials do not conform to the warranty set forth in Section 6(d), and Customer notifies ReliaQuest in writing during the five (5) day period following performance of the SMM Services or delivery of the ReliaQuest Materials, identifying the failure to conform with specificity in such notice, ReliaQuest will correct any non-conformance confirmed by ReliaQuest within a reasonable period of time by re-performing the SMM Services or correcting the ReliaQuest Materials unless caused by any of the exclusions set forth in Section 6(f). Customer will provide ReliaQuest with access to the ReliaQuest Materials and such other information and access reasonably requested by ReliaQuest to permit ReliaQuest to confirm the non-conformance and will provide assistance and cooperation as reasonably requested by ReliaQuest to permit ReliaQuest to make required corrections. If ReliaQuest is unable to comply with the foregoing obligations, and such breach was not caused by any of the exclusions set forth in Section 6(f). ReliaQuest will refund the fee paid by Customer for the SMM Services or the ReliaQuest Materials, Customer will discontinue all use of the SMM Services or ReliaQuest Materials and ReliaQuest will have no further obligation to Customer with respect to such SMM Services or ReliaQuest Materials. This Section 6(e)(ii) states ReliaQuest’s entire liability for warranty claims under Sections 6(c) and 6(d) relating to SMM Services and ReliaQuest Materials and ReliaQuest will have no further obligation to Customer with respect to such SMM Services or ReliaQuest Materials.
f. Exclusions. ReliaQuest will not be responsible for any breach of warranty under this Section 6, or any defects, problems or failures with respect to Purchased GreyMatter, ReliaQuest Materials, or any SMM Services that is caused by or arising from: (i) any non-conformance of Purchased GreyMatter or ReliaQuest Materials that ReliaQuest cannot recreate on Customer’s system after exercising reasonable efforts in an attempt to do so; (ii) misuse or use of Purchased GreyMatter or ReliaQuest Materials in a manner not contemplated by the description of such Purchased GreyMatter or ReliaQuest Materials set forth in an Order or authorized by this Agreement; (iii) a modification of Purchased GreyMatter or any ReliaQuest Materials made by any party other than ReliaQuest; (iv) Customer’s use of Purchased GreyMatter or ReliaQuest Materials in combination with software or hardware not specified as compatible by ReliaQuest; (v) Customer’s failure to promptly implement new releases of Purchased GreyMatter or ReliaQuest Materials made available by ReliaQuest or to follow ReliaQuest instructions in the implementation of Purchased GreyMatter or any ReliaQuest Materials; (vi) any virus, trojan horses, or other harmful malicious code not introduced by ReliaQuest; (vii) any version of Purchased GreyMatter or ReliaQuest Materials that has not been installed, used, or maintained in accordance with this Agreement or any applicable Documentation; (viii) any changes to or errors in third party software or hardware with which the Purchased GreyMatter or ReliaQuest Materials operates or interfaces with, or on which the Purchased GreyMatter or ReliaQuest Materials otherwise rely; or (ix) incidents or circumstances caused by the negligence or misconduct of Customer.
g. Further Limitations. Notwithstanding the warranty provided for GreyMatter in Section 6(a) of this Agreement, the GreyMatter Verify component of GreyMatter is provided “AS IS” and without warranty of any kind from ReliaQuest to Customer. ReliaQuest specifically disclaims any and all liability from use of GreyMatter Verify on Customer’s systems, including but not limited to, any damages, losses, or expenses of any kind related to system downtime, damage, data corruption, or data loss from the use of GreyMatter Verify on any Customer system.
h. DISCLAIMER. THE WARRANTIES AND ANY ASSOCIATED REMEDIES EXPRESSED OR REFERENCED IN THIS AGREEMENT ARE EXCLUSIVE. NO OTHER WARRANTY, WRITTEN OR ORAL, IS EXPRESSED OR IMPLIED BY RELIAQUEST OR MAY BE INFER¬RED FROM A COURSE OF DEALING OR USAGE OF TRADE. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, TO THE MAXIMUM EXTENT ALLOWED BY LAW, RELIAQUEST DISCLAIMS ALL IMPLIED WARRANTIES OR CONDITIONS INCLUDING ANY IMPLIED WARRANTIES OF MERCHANT¬ABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE OUTSIDE OF THIS AGREEMENT OR AN ORDER WILL BE DEEMED TO CREATE A WARRANTY OR IN ANY WAY INCREASE THE EXPRESS WARRANTIES AND REMEDIES IN THIS AGREEMENT. ANY EXPRESS WARRANTIES AND ANY WARRANTIES IMPLIED OR REQUIRED BY LAW THAT ARE NOT DISCLAIMED OR EXCLUDED ARE LIMITED TO THE REMEDIES SPECIFIED IN THIS AGREEMENT. CUSTOMER ACKNOWLEDGES, UNDERSTANDS, AND AGREES THAT RELIAQUEST DOES NOT GUARANTEE OR WARRANT THAT IT, GREYMATTER, ANY RELIAQUEST MATERIALS, OR ANY SECURITY TOOL CONTENT WILL FIND, LOCATE, OR DISCOVER ANY OR ALL OF CUSTOMER’S OR ITS AFFILIATES’ SYSTEM THREATS, VULNERABILITIES, MALWARE, AND MALICIOUS SOFTWARE, AND CUSTOMER AND ITS AFFILIATES WILL NOT HOLD RELIAQUEST RESPONSIBLE FOR FAILURE TO DETECT SUCH ITEMS. NO WARRANTY IS MADE THAT ANY WORK WILL MEET CUSTOMER’S NEEDS OR BE ERROR FREE OR UNINTERRUPTED. RELIAQUEST MAKES NO WARRANTIES REGARDING THE ACCURACY OF ANY GREYMATTER, ANY RELIAQUEST MATERIALS, OR ANY SECURITY TOOL CONTENT, OR THE APPROPRIATENESS OF ANY SUCH ITEMS FOR ANY PARTICULAR SYSTEM.
a. ReliaQuest’s Obligation. ReliaQuest shall at its cost and expense: (i) defend and/or settle any claim brought against Customer by an unaffiliated third party alleging that GreyMatter or any ReliaQuest Materials infringe or violate a third party’s intellectual property rights, and (ii) pay and indemnify any settlement of such claim or any damages awarded to such third party by a court of competent jurisdiction as a result of such claim; provided, that Customer: (1) gives ReliaQuest prompt written notice of such claim; (2) permits ReliaQuest to solely control and direct the defense or settlement of such claim (however, ReliaQuest will not settle any claim in a manner that requires Customer to admit liability without Customer’s prior written consent); and (3) if required, provides ReliaQuest all reasonable assistance in connection with the defense or settlement of such claim, at ReliaQuest’s cost and expense. Customer may, at Customer’s own expense, participate in defense of any claim.
b. Remedies. If a claim covered under Section 7(a) occurs or in ReliaQuest’s opinion is reasonably likely to occur, ReliaQuest may at its expense and sole discretion: (i) procure the right to allow Customer to continue using GreyMatter or any ReliaQuest Materials as applicable; (ii) modify or replace GreyMatter or any ReliaQuest Materials, as applicable, to become non-infringing; or (iii) if neither (i) nor (ii) is commercially practicable, terminate Customer’s license or access to the affected portion of GreyMatter or any ReliaQuest Materials, as applicable, and refund a portion of the pre-paid, unused fees paid by Customer corresponding to the unused period of the Order Term, if any.
c. Exclusions. ReliaQuest shall have no obligation to Customer under this Section 7 if the claim is based upon or arising out of: (i) any modification to GreyMatter or any ReliaQuest Materials, as applicable, that are not made by ReliaQuest; (ii) any combination or use of GreyMatter or any ReliaQuest Materials, as applicable, with or in any third party software, hardware, process, firmware, or data, to the extent that such claim is based on such combination or use with such third party items; (iii) Customer’s continued use of the allegedly infringing elements of GreyMatter or any ReliaQuest Materials, as applicable, after being notified of the infringement claim or after being provided a modified version of GreyMatter or any ReliaQuest Materials, as applicable, by ReliaQuest at no additional cost that is intended to address such alleged infringement; (iv) Customer’s failure to use GreyMatter or any ReliaQuest Materials, in accordance with this Agreement and any applicable Documentation; and/or (v) Customer’s use of GreyMatter or any ReliaQuest Materials outside the scope of the rights granted under this Agreement or any Order.
d. Exclusive Remedy. THE REMEDIES SPECIFIED IN THIS SECTION 7 CONSTITUTE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, AND RELIAQUEST’S ENTIRE LIABILITY, WITH RESPECT TO ANY INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
8. Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR LIABILITY FOR ANY AMOUNTS PAID OR PAYABLE TO THIRD PARTIES UNDER SECTION 7 (INDEMNIFICATION), CUSTOMER’S PAYMENT OBLIGATIONS, FRAUD, WILFUL MISCONDUCT, AND/OR ANY INFRINGEMENT OR MISAPPROPRIATION BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS (INCLUDING VIOLATIONS OF LICENSES GRANTED TO CUSTOMER UNDER SECTION 1 OF THIS AGREEMENT), NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY IN CONNECTION WITH THIS AGREEMENT OR THE SUBJECT MATTER HEREOF FOR ANY LOST PROFITS, REVENUE, OR SAVINGS, LOST BUSINESS OPPORTUNITIES, LOST DATA, OR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING ANY DAMAGES ARISING FROM LOSS OF USE, LOSS OF DATA, LOST PROFITS, LOST REVENUE, BUSINESS INTERRUPTION, OR COST OF PROCURING SUBSTITUTE SOFTWARE OR SMM SERVICES, BASED ON ANY THEORY OF LIABILITY, INCLUDING CONTRACT, INDEMNIFICATION, WARRANTY, TORT (INCLUDING NEGLIGENCE), OR STRICT LIABILITY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES OR SUCH DAMAGES OR LOSSES WERE REASONABLY FORESEEABLE. RELIAQUEST’S TOTAL LIABILITY TO CUSTOMER FOR ANY CLAIMS AGAINST RELIAQUEST UNDER AN ORDER OR THIS AGREEMENT IN THE AGGREGATE SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID TO RELIAQUEST UNDER AN APPLICABLE ORDER DURING THE PRIOR TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM (OR EARLIEST CLAIM IN THE EVENT OF MULTIPLE CLAIMS SUBJECT TO THIS LIMITATION). THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SPECIFIED IN THIS AGREEMENT. MULTIPLE CLAIMS SHALL NOT EXPAND THE LIMITATIONS SPECIFIED IN THIS SECTION 8. CUSTOMER, NOT RELIAQUEST, IS SOLELY RESPONSIBLE FOR THE ACCURACY, QUALITY, AND SECURITY OF CUSTOMER’S DATA AND FOR MAINTAINING A BACKUP OF ALL DATA AND FOR ENSURING THE SECURITY AND INTEGRITY OF CUSTOMER’S DATA, COMPUTERS, NETWORKS, AND SYSTEMS (INCLUDING PROTECTING THEM AGAINST VIRUSES AND MALWARE). THERE ARE NO THIRD-PARTY BENEFICIARIES UNDER THIS AGREEMENT. THIS AGREEMENT EXPRESSLY EXCLUDES LIABILITY TO CUSTOMER’S SERVICE PROVIDERS, CUSTOMERS, AND OTHER THIRD PARTIES RELATED OR CONNECTED TO CUSTOMER. CUSTOMER WILL NOT BRING A LEGAL ACTION AGAINST RELIAQUEST MORE THAN TWELVE (12) MONTHS AFTER THE CAUSE OF ACTION AROSE UNLESS APPLICABLE LAW PROHIBITS THIS CONTRACTUAL LIMITATION.
9. Compliance with Laws. Each party agrees to comply with all U.S. federal, state, local and non-U.S. laws directly applicable to such party in the performance of this Agreement, including but not limited to, applicable export and import, anti-corruption and employment laws. Customer acknowledges and agrees the GreyMatter or any ReliaQuest Materials shall not be used, transferred, or otherwise exported or re-exported to regions that the United States and/or the European Union maintains an embargo or comprehensive sanctions (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity subject to individual prohibitions (e.g., parties listed on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders) (collectively, “Designated Nationals”), without first obtaining all required authorizations from the U.S. government and any other applicable government. Customer represents and warrants that Customer is not located in, or is under the control of, or a national or resident of, an Embargoed Country or Designated National. ReliaQuest represents and warrants that ReliaQuest is not located in, or is under the control of, or a national or resident of, an Embargoed Country or Designated National.
10. Term and Termination.
a. Term. This Agreement will commence upon the Effective Date and will remain in effect until the expiration of the applicable Order Term and will automatically terminate at the end of such term, unless earlier terminated pursuant to the terms of this Agreement (the “Term”). For the avoidance of doubt, termination of a license term under an applicable Order shall not affect the term of any other licenses applicable to other orders that Customer has purchased or entered into with ReliaQuest. Upon expiration of any Term, the applicable Software will stop working automatically.
b. Termination Rights. Either party may terminate this Agreement or any Order by written notice to the other party in the event of a material breach of this Agreement or an Order that is not cured within thirty (30) days of receipt of the written notice. In addition, ReliaQuest may immediately terminate this Agreement and any Order (in whole or in part) by providing written notice to Customer (a) if Customer materially breaches the license granted in Section 1 of this Agreement, or (b) as otherwise stated in this Agreement. ReliaQuest may also terminate Customer’s license to: (i) Evaluation GreyMatter; or (ii) Free GreyMatter, at any time with or without cause after providing notice to Customer.
c. Effect of Termination. Upon any expiration or termination of this Agreement, the rights and licenses granted to Customer will automatically terminate, and Customer agrees to immediately (a) cease using GreyMatter, (b) return or destroy all copies of GreyMatter and other ReliaQuest Confidential Information in Customer’s possession or control, and (c) certify in writing the completion of the return or destruction in accordance with Section 5(d) of this Agreement. Upon termination of this Agreement, ReliaQuest will have no obligation to refund any Fees or other amounts received from Customer during the Term. Unless otherwise provided in this Agreement, Customer shall be required to pay all Fees due under an Order, even in the event of an early termination. Section 1 (GreyMatter License, Use Restrictions, and Ownership), Section 2 (Security Model Management Services), Section 3 (Subscription Fees), Section 4 (Statement of Verification; Audit Rights), Section 5 (Confidentiality), Section 6 (Warranties & Disclaimer), Section 7 (Indemnification), Section 8 (Limitation of Liability), Section 10 (Term and Termination) and Sections 11 (General) will survive any expiration or termination of this Agreement.
d. Suspension and Termination. This Agreement shall remain effective until termination in accordance with this Section or as otherwise specified herein. ReliaQuest may immediately suspend Customer’s access to, or use of, GreyMatter if: (i) ReliaQuest believes that there is a significant threat to the security, integrity, functionality, or availability of GreyMatter or any content, data, or applications in GreyMatter; (ii) Customer or Customer users are in breach of Section 1(b) (Restrictions); or (iii) Customer fails to pay ReliaQuest when undisputed fees are due; provided, however, ReliaQuest will use commercially reasonable efforts under the circumstances to provide Customer with notice and, if applicable, an opportunity to remedy such violation prior to any such suspension.
a. Force Majeure. Neither party shall be liable for, nor shall either party be considered in breach of this Agreement due to, any failure to perform its obligations under this Agreement (other than its payment obligations) as a result of a cause beyond its control, including but not limited to, act of God or a public enemy, act of any military, civil or regulatory authority, change in any law or regulation, fire, flood, earthquake, storm or other like event, disruption or outage of communications (including an upstream server block and Internet or other networked environment disruption or outage), power or other utility, labor problem, or any other cause, whether similar or dissimilar to any of the foregoing, which could not have been prevented with reasonable care. The party experiencing a force majeure event, shall use commercially reasonable efforts to provide notice of such to the other party.
b. Assignment. Neither party may assign this Agreement without the prior written consent of the other party, except to an Affiliate in connection with a corporate reorganization or in connection with a merger, acquisition, or sale of all or substantially all of its business and/or assets. Any assignment in violation of this Section shall be void. Subject to the foregoing, all rights and obligations of the parties under this Agreement shall be binding upon and inure to the benefit of and be enforceable by and against the successors and permitted assigns.
c. Governing Law; Venue. Except as otherwise provided in an Order, this Agreement, and the rights and duties of the parties arising from this Agreement, shall be governed by, construed, and enforced in accordance with the laws of the State of Florida, excluding its conflicts-of-law principles. The sole and exclusive jurisdiction and venue for actions arising under this Agreement shall be state and federal courts in Hillsborough County, Florida, and the parties agree to service of process in accordance with the rules of such courts. The Uniform Computer Information Transactions Act and the United Nations Convention on the International Sale of Goods shall not apply. Notwithstanding the foregoing, each party reserves the right to file a suit or action in any court of competent jurisdiction as such party deems necessary to protect its intellectual property rights and, in ReliaQuest’s case, to recoup any payments due.
d. Entire Agreement. This Agreement and any applicable Orders entered into under this Agreement, forms the entire agreement between ReliaQuest and Customer regarding Customer’s use of GreyMatter, any ReliaQuest Materials, and the SMM Services and supersedes and replaces any previous communications, representa¬tions, or agreements, or Customer’s addi¬tional or inconsistent terms, whether oral or written. In the event any provision of this Agreement is held invalid or unenforceable the remainder of this Agreement will remain enforceable and unaffected thereby.
e. Affiliates. Any Affiliate purchasing hereunder, or using or accessing any Offering hereunder, or benefitting from the Customer’s use of an Offering, will be bound by and comply with all terms and conditions of this Agreement. The Customer signing this Agreement will remain responsible for Customer’s Affiliates’ acts and omissions unless Customer’s Affiliate has entered into its own agreement with ReliaQuest.
f. Enforceability of Limitations. THE TERMS OF THIS AGREEMENT THAT LIMIT, DISCLAIM, OR EXCLUDE WARRANTIES, REME¬DIES, OR DAMAGES ARE INTENDED BY THE PARTIES TO BE INDEPENDENT AND REMAIN IN EFFECT DESPITE THE FAILURE OR UNENFORCEABILITY OF ANY OTHER PROVISION OF THIS AGREEMENT. THE PARTIES HAVE RELIED ON THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THIS AGREE¬¬MENT IN DETERMINING WHETHER TO ENTER INTO IT.
g. Waiver and Severability. Neither Party’s failure to exercise or delay in exercising any of its rights under this Agreement will constitute or be deemed a waiver or forfeiture of those rights. If any provision of this Agreement is held to be illegal, invalid, or unenforceable, the provision will be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remaining provisions of this Agreement will remain in full force and effect.
h. Amendment. For a change to this Agreement to be valid, authorized representatives of each party must sign a written amendment. Changes in any other form are void, including any handwritten interlineations to this Agreement. Any conflicting or additional terms and conditions on or accompanying any purchase order or other communication from Customer are void and Customer shall not seek or attempt to: (i) modify; (ii) contradict; (iii) negate; or (iv) add to, any term or condition contained in this Agreement or an Order. ReliaQuest’s failure to object to provi¬sions contained in any purchase order or other communication from Customer will not be construed as a waiver of this Section 11(h) and Customer’s issuance of a purchase order constitutes acceptance of this Agreement notwithstanding anything to the contrary in the purchase order. ReliaQuest expressly rejects any terms and conditions in Customer’s purchase order that differ from those in this Agreement. Any different or additional terms and conditions will not become a part of the agreement between the parties notwithstanding any subsequent acknowledgement, invoice, or license that ReliaQuest may issue.
i. Interpretation. Headings in this Agreement are for convenience only and do not affect the meaning or interpretation of this Agreement. This Agreement will not be construed either in favor of or against one party or the other, but rather in accordance with its fair meaning. When the term “including” is used in this Agreement it will be construed in each case to mean “including, but not limited to.”
j. Order of Precedence. In the event of a conflict, the terms of this Agreement shall prevail over any conflicting terms in an Order, unless such Order expressly references the section of this Agreement that it is intended to override.
k. Relationship of the Parties. Each party is an independent contractor in the performance of this Agreement. Neither party is, nor will claim to be, a legal representative, partner, franchisee, agent, or employee of the other, unless explicitly provided otherwise in this Agreement. Personnel of each party and their Affiliates will not be deemed employees or agents of the other party.
l. Publicity. Without the prior written consent of the other party, neither party will: (i) publicly use the name, logo or other identifying marks of the other party, or (ii) issue or permit the issuance of any press release or other public statement regarding this Agreement or the Parties’ relationship, provided however that ReliaQuest shall be able to identify Customer as current customer of ReliaQuest in its sales and marketing materials and also identify Customer as a current customer on its website by name and through use of Customer’s logo, unless you direct otherwise by sending an email to email@example.com revoking your consent, which may be done at any time.
m. Subcontracting. ReliaQuest retains the right to subcontract the performance of any SMM Services, or any part of it, to subcontractors selected by ReliaQuest so long as ReliaQuest remains liable to Customer for the performance of the SMM Services as specified in the applicable Order.
n. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed to be an original, but all of which together will be deemed to be one and the same instrument. This Agreement may be executed and delivered by PDF or by means of other electronic signature. PDF or other electronic signatures will be deemed to be valid and original. For the purposes of this Agreement, “written” or “writing” includes any electronic record or mode of communication that accurately preserves its information and is capable of being reproduced in tangible form, such as an electronically reproduced facsimile document. Neither Party may contest the validity or enforceability of a PDF or electronic document on the grounds that it fails to comply with the Statute of Frauds or similar laws requiring that contracts be in writing.
o. Independent Contractors; No Third-Party Rights. The parties are independent contractors. This Agreement shall not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. No provision in this Agreement is intended or shall create any rights with respect to the subject matter of this Agreement in any third party.
p. Notices. All legal notices will be given in writing to the addresses in the Order and will be effective: (i) when personally delivered, (ii) on the reported delivery date if sent by a recognized international or overnight courier, or (iii) five (5) business days after being sent by registered or certified mail (or ten days for international mail). For clarity, Orders, POs, confirmations, invoices, and other documents relating to order processing and payment are not legal notices and may be delivered electronically in accordance with each party’s standard ordering procedures.
12. Definitions. Unless otherwise indicated in this Agreement, the following terms, when capitalized, shall have the following meaning:
“Affiliate” means any entity that a party directly or indirectly controls or is controlled by, or with which it is under common control.
“Agreement” means this End User License Agreement.
“Authorized Partner” means and authorized reseller of GreyMatter or SMM Services.
“Customer Data” means all Customer data and information created, held, or retained by Customer on Customer’s systems, excluding GreyMatter, any ReliaQuest Materials, or any ReliaQuest Confidential Information.
“Confidential Information” means any nonpublic information provided or made available to a party by the other party, that is (i) identified as confidential by the disclosing Party at the time of disclosure, or (ii) of a nature that would reasonably be considered to be confidential whether or not marked as confidential. ReliaQuest pricing and the terms of an Order are also considered Confidential Information of ReliaQuest. Confidential Information includes copies, summaries, and other derivatives of Confidential Information. Unless otherwise agreed to by the parties in writing, the use by ReliaQuest of its Confidential Information to perform SMM Services or to support any portion of any ReliaQuest Materials shall not itself become a ReliaQuest Material.
“Customer Vendor” means any individual or entity (other than a ReliaQuest Competitor) that: (i) has access or use of a GreyMatter solely on behalf of and for Customer’s Internal Use, (ii) has an agreement to provide Customer (or its Affiliates) services, and (iii) is subject to confidentiality obligations covering ReliaQuest’s Confidential Information.“Delivery” means the date of ReliaQuest’s initial delivery of the account or log-in information for GreyMatter or otherwise making GreyMatter available for download, access, or use by Customer.
“Documentation” means any ReliaQuest’s end-user technical documentation provided for GreyMatter.“Disabled Functionality” means certain functionality or materials (including programs, modules or components, functionality, features, documentation, content or other materials) that may be contained in or provided with GreyMatter that are disabled or hidden in the GreyMatter platform, because Customer either: (a) does not have the relevant license or approval from ReliaQuest to use such functionality of GreyMatter, or (b) has not paid the applicable Fees, for such functionality or materials.
“Evaluation GreyMatter” means the provision of access to GreyMatter by ReliaQuest to Customer that is specified in an Order as provided under an evaluation license or a free trial license.
“Free GreyMatter” means the provision of access to GreyMatter by ReliaQuest to Customer that is specified in an Order as included, at no cost, or without charge (other than Evaluation Software). For the avoidance of doubt, any amendment to an existing statement of work or other ordering document that ReliaQuest currently has in place with Customer, that provides Customer access to GreyMatter at no cost or additional expense shall be considered Free GreyMatter under this Agreement.
“GreyMatter” means the ReliaQuest GreyMatter software platform consisting of the GreyMatter Automate, GreyMatter Detect, GreyMatter Health, GreyMatter Hunt, GreyMatter Intel, GreyMatter Investigate, and GreyMatter Verify components, and any other related ReliaQuest software tools, programs, or platforms, whether existing now or developed by ReliaQuest during the Order Term, including any enhancements, derivatives, or developments thereto.
“GreyMatter Automate” is the component of GreyMatter which supports the actions to enrich data and/or contain or remediate threats.
“GreyMatter Detect” is the component of GreyMatter which supports the overall content methodology and lifecycle to accelerate Customer’s detection visibility and facilitate evolution of Customer’s capabilities.
“GreyMatter Health” is the component of GreyMatter which supports the overall health of the primary technologies and is inclusive of all primary technologies.
“GreyMatter Hunt” is the component of GreyMatter which supports threat hunting potentially leveraging data from customer’s primary and secondary technology.
“GreyMatter Intel” is the component of GreyMatter which supports threat intelligence automation, aggregation, normalization and dissemination of machine-readable threat intelligence.
“GreyMatter Investigate” is the component of GreyMatter which supports the triage and analysis of alerts which are generated within the customer’s primary technology.
“GreyMatter Verify” is the component of GreyMatter which allows a Customer to test the effectiveness of Customer’s cybersecurity tools and content by simulating malicious and/or anomalous activity in a benign manner, within Customer’s environment.
“Intellectual Property Rights” means all patent, copyright, trademark, and trade secret rights and other intellectual property and proprietary rights, whether registered or unregistered.
“Internal Use” means access or use solely for Customer’s and its Affiliates’, own business operations on Customer’s systems, networks and devices with Customer’s data. Internal Use is limited to access and use by Customer, its Affiliates, and Customer Vendors, solely on Customer’s behalf and for Customers benefit. Internal Use does not include access or use: (i) for the benefit of any person or entity other than Customer or its Affiliates, (ii) for any commercial purpose in which Customer generates financial gain through the use or exploitation of the services or technology provided by ReliaQuest; or (iii) for the development of any product or service by Customer, its Affiliates, or any Customer Vendor.
“Open Source Software” means software or similar subject matter that is distributed under an open source license such as (by way of example only) the GNU General Public License, GNU Lesser General Public License, Apache License, Mozilla Public License, BSD License, MIT License, Common Public License, any derivative of any of the foregoing licenses, or any other license approved as an open source license by the Open Source Initiative.
“Order” means a mutually agreed and executed written ordering document describing the ReliaQuest Materials and components of GreyMatter licensed to Customer and the related SMM Services to be performed by ReliaQuest for Customer, including identification of the applicable Order Term and Fees related thereto. For the purposes of this Agreement, an “Order” may take the form of: (i) a separate GreyMatter order form to cover the licensing of GreyMatter and any SMM Services incorporating the terms or referencing this Agreement; (ii) a Statement of Work or SOW incorporating the terms or referencing this Agreement; of (iii) an amendment to and existing agreement between Customer and ReliaQuest (including a no-cost addendum or other similar document) incorporating the terms or referencing this Agreement.
“Order Term” means the period of time set forth in the applicable Order during which Customer is authorized by ReliaQuest to access and use GreyMatter and any related services, including SMM Services.
“Purchased GreyMatter” means GreyMatter licensed to Customer pursuant to an Order and for which GreyMatter is identified in the respective fee table and is assigned a dollar value greater than $0 that requires Customer to pay a license fee to ReliaQuest for such usage, either directly or indirectly through an Authorized Partner. For the avoidance of doubt, any amendment to an existing statement of work or other ordering document that ReliaQuest currently has in place with Customer, that provides Customer access to GreyMatter at no cost or additional expense shall not be considered Purchased GreyMatter under this Agreement.
“ReliaQuest” means ReliaQuest, LLC and its Affiliates.
“ReliaQuest Competitor” means a person or entity in the business of developing, distributing, or commercializing cyber security products or services substantially similar to or competitive with ReliaQuest’s products or services.
“ReliaQuest Materials” means and Security Tool Content, Reporting, or Service Tools provided to Customer pursuant to an Order.
“Reporting” means any reporting provided by ReliaQuest to Customer with respect to GreyMatter or the SMM Services provided by ReliaQuest, including any reports provided by ReliaQuest utilizing ReliaQuest’s proprietary model index reporting capabilities.
“Security Tool Content” means the means the methodology, design, logic, and construction (including all code and scripts) of rules created by ReliaQuest and designed to detect, correlate and flag actionable activity in various security information and event management software and other end point detection and response software during the , including any improvements, modifications, changes, or enhancements made thereto.
“Service Metrics” means any and all non-Customer specific information, such as anonymized (with respect to Customer) facts, figures, numbers, characters, text, observations, measurements, statistics, quantitative or qualitative attributes, correlative and/or contextual data, detections, failure or alert codes, or other items of information that is generated, collected, derived or related to GreyMatter or ReliaQuest’s performance of the SMM Services, irrespective of the method in which such information is memorialized or recorded.
“Service Tool” means any ReliaQuest developed software program, application, or script that is used by ReliaQuest to perform the SMM Services.
“SMM Services” means, collectively, any GreyMatter related services as identified in an Order, and may include without limitation incident response, engineering, Security Tool Content creation, on-going enablement and other cyber-security investigation and forensic services.
“Statement of Work” or “SOW” means a mutually agreed executed written document describing GreyMatter and the SMM Services to be performed by ReliaQuest for Customer, including any ReliaQuest Materials, fees, and expenses related thereto.