This Agreement "Agreement" is made as of the date last signed below (the "Effective Date") by and between CENTRIPETAL NETWORKS, INC., a Delaware Corporation "Centripetal Networks" and, "Client" (each of Centripetal Networks and Client, a "Party" and, collectively, the "Parties").
In consideration of the mutual covenants recited below, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1.0 SERVICE USE
1.1 Provision of Product. Centripetal Networks agrees to provide Client the Product and Professional Services during the Service Period (as defined in Section 6.1). Client agrees to use the Product solely for purposes of the CleanINTERNET Service during such Service Period and, solely for Client's own internal use. Client acknowledges that Centripetal Networks retains ownership of the Product.
1.2 Embedded Software License. The Product may contain certain embedded software ("Embedded Software"). In the event that the Product contains Embedded Software, such Embedded Software is licensed, not sold, and Client's use of the Embedded Software is granted only subject to Client's strict compliance with this Agreement. Centripetal Networks grants Client a nonexclusive, nontransferable, paid-up license to use the Embedded Software solely in connection with the use of the accompanying Product, solely as embedded in the Product, and solely in accordance with any applicable user documentation provided with such Embedded Software and/or Product. Such license shall expire at the conclusion of the Service Period. Client shall not adapt, alter, modify, decompile, disassemble, reverse engineer, translate, or create derivative works of the Embedded Software or any component of the Embedded Software. Certain items of software included with the Embedded Software are subject to "open source" or "free software" licenses ("Open Source Software"). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of this section. Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this document limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. In particular, nothing in this document restricts your right to copy, modify, and distribute that Open Source Software subject to the terms of the applicable end user license.
1.3 Service Scope. The Parties agree to the Service tier and associated Service Scope (see " SERVICE SCOPE" and "CleanINTERNET Service Levels"). Client agrees to perform or provide the items contained in the Service Scope requirements during the Service Period and to provide Centripetal with any clarifications or procedural guidelines that are needed for its own performance of the Service
1.4 Centripetal Networks Intellectual Property Rights. Centripetal Networks Intellectual Property Rights. As between Client and Centripetal Networks, Centripetal Networks owns all right, title and interest in and to the intellectual property rights related to the Services, the Product, and the Embedded Software, including any improvements, modifications or enhancements thereto. Other than as expressly set forth in this Agreement, no license or other rights in or to the Product or the Embedded Software are granted to Customer, and all such licenses and rights are hereby expressly reserved.
2.0 CLIENT OBLIGATIONS
2.1 Product Care; Liens. During the Service Period, Client shall handle the Product with reasonable care, and shall exercise reasonable efforts to avoid damage thereto. Client shall be responsible for any damages or losses to the Product until such time as it has been returned to Centripetal Networks. Client shall not open, disassemble, or attempt to reverse engineer the product. Client shall not directly or indirectly create, incur, assume or suffer to exist any mortgage, pledge, lien, charge, security interest, encumbrance or claim on or with respect to Product or any interest therein, except for the lien and security interest of Centripetal Networks therein created under this Agreement. Client shall promptly, at its own expense, take such action as may be necessary to duly discharge any such mortgage, pledge, lien, security interest, charge, encumbrance or claim if the same shall arise at any time.
3.0 DELIVERY, INSTALLATION, ACCESS AND TECHNICAL SUPPORT OBLIGATIONS
3.1 Delivery and Installation. Centripetal Networks will deliver and upon request from Client install the Product at a Client designated location at a mutually agreeable time.
3.2 Centripetal Networks Access for Evaluation; Feedback. Throughout the Threat Monitoring Period, Client shall provide Centripetal Networks with reasonable access to Client's facilities to inspect or repair the Product. Centripetal Networks shall exercise reasonable efforts to provide Client at least three (3) days notice prior to such inspection. Client agrees to provide Centripetal Networks Feedback through surveys, feedback sessions, and as otherwise reasonably requested by Centripetal Networks. "Feedback" means information, comments, suggestions, and other feedback regarding the use, operation, functionality, and characteristics of the Product and Embedded Software. Client hereby unconditionally and irrevocably assigns to Centripetal Networks all right, title and interest in and to the Feedback, and all intellectual property rights therein.
3.3 Support. During the Service Period, Centripetal Networks will (i) provide reasonable replacement parts at no cost and (ii) provide training during implementation. During the Service Period, Centripetal Networks will make available reasonable telephone and email support for the Product during its normal business hours of 8:00 AM to 5:00 PM ET. Unless otherwise agreed by the Parties, Centripetal Networks shall have no obligation to provide support with respect to any error or problem resulting from (a) use of the Product other than strictly according to the terms of this Agreement; (b) modification of the Product by Client or any third party; or (c) any combination or integration of the Product with hardware, software and/or technology not provided or approved by Centripetal Networks for use with the Product.
4.0 DISCLAIMERS AND EXCLUSION OF LIABILITIES
4.1 General Disclaimer. CLIENT AGREES THAT IT IS ENTERING THIS AGREEMENT SOLELY FOR PURPOSES OF THE SERVICE. ACCORDINGLY, CLIENT AGREES TO ASSUME ALL RISKS FROM USE OF THE PRODUCT AND ACKNOWLEDGES THAT THE PRODUCT AND ANY OTHER MATERIALS OR SERVICES PROVIDED BY CENTRIPETAL NETWORKS ARE PROVIDED "AS IS" AND "WITH ALL DEFECTS." TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CENTRIPETAL NETWORKS DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DATA ACCURACY, TITLE, NON- INFRINGEMENT, NON-INTERFERENCE AND/OR QUIET ENJOYMENT. CENTRIPETAL NETWORKS DOES NOT WARRANT THAT THE PRODUCT WILL MEET CLIENT'S REQUIREMENTS OR THAT THE OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL OR ANY ERRORS WILL BE CORRECTED. CENTRIPETAL NETWORKS WILL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE TO ANY DATA. Some jurisdictions do not allow the limitation or exclusion of liability for certain damages, including incidental or consequential damages. In such jurisdictions, the limitations set forth in Sections 4.1, 4.2, and 4.3 may not apply to Client insofar as they concern such damages.
4.2 Limited Remedies. CENTRIPETAL NETWORKS SHALL NOT BE LIABLE FOR LOST PROFITS OR LOSS OF DATA OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE PRODUCT, EMBEDDED SOFTWARE OR THIS AGREEMENT WHICH MAY BE INCURRED BY CLIENT.
4.3 Limitation of Liability. THE CUMULATIVE LIABILITY OF CENTRIPETAL NETWORKS TO CLIENT FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, SHALL NOT EXCEED $25,000.
4.4 Essential Basis. CLIENT ACKNOWLEDGES THAT THE EXCLUSIONS, LIMITATIONS OF LIABILITY AND DISCLAIMERS OF WARRANTY SET FORTH IN THIS AGREEMENT FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
5.0 FEES AND PAYMENTS
5.1 Fees. The fees due under this Agreement with respect to the Service are specified in the attached Proposal (see "CLEANINTERNET SERVICE PROPOSAL"). Payments will be made on net 30 payment terms unless otherwise specified in the Proposal. Annual contract value due on execution and on terms specified in Proposal.
6.0 TERM AND TERMINATION
6.1 Term. The "Service Period" shall commence on the date of receipt by Client of the Product(s) (the "Commencement Date") and shall continue until the date which is specified in the Service Scope (CLEANINTERNET SERVICE SCOPE), or such other mutually agreed upon period. The Agreement shall remain in effect until the end of the Service Period, unless either Party terminates the Agreement sooner in accordance with the following provisions of Section 6. The Service period shall renew unless notice of non-renewal is received at least 60 days prior to expiration of the term.
6.2 Termination by Client. Client may terminate this Agreement at any time prior to shipment of the Product to Client and during the first thirty days of the Service Period by providing Centripetal Networks five (5) days prior written notice.
6.3 Termination by Centripetal Networks. At any time Centripetal Networks shall have the right to terminate this Agreement immediately and without further obligation or liability hereunder if Client breaches any material term of this Agreement after notice by Centripetal Networks of such breach. During the Service Period, Centripetal Networks shall be entitled to terminate this Agreement without cause upon sixty (60) days prior written notice to Client
6.4 Rights and Obligations Upon Termination. Upon the expiration or termination of this Agreement, all rights granted hereunder to Client shall cease, and Client shall immediately (a) notify Centripetal Networks and Centripetal Networks will retrieve and de-install the Product at Centripetal Networks' expense; and (b) provide reasonable access to Client's facilities and such assistance as Centripetal Networks may request to allow Centripetal Networks or its designated agents or contractors to remove the Product. If Client fails to permit Centripetal Networks to retrieve and de-install the Product within fifteen (15) days upon termination or expiration of this Agreement, Client shall pay the then-current price of the Product pursuant to an invoice provided by Centripetal Networks and, until such time that payment for the aforementioned invoice is received in full, Client hereby grants Centripetal Networks a first priority security interest in the unreturned Product to the maximum extent provided by law. Termination of this Agreement and/or invoicing for the Product by Centripetal Networks shall be without prejudice to any other remedies that Centripetal Networks may lawfully have, whether at law or in equity.
6.5 Survival. The provisions of Sections 1.5, 4, 6.4, 6.5 and 7 shall survive the termination or expiration of this Agreement.
7.1 Reservation of Rights. Centripetal Networks reserves all rights not expressly granted in this Agreement. Unless otherwise expressly stated, all remedies stated in this Agreement are cumulative, and Centripetal Networks expressly reserves all other remedies available in law or equity.
7.2 Confidential Information. The confidentiality terms and conditions of any previously executed, valid non-disclosure agreement between the parties (the "NDA") are incorporated by reference into this Agreement and shall remain in full force and effect for the term of this Agreement. Without limiting the foregoing, the parties agree that the existence of the terms of this Agreement, the Feedback and any other results related to Client's use of the Product shall constitute confidential information of Centripetal Networks.
7.3 Entire Agreement. This Agreement sets forth the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes and merges all prior oral and written agreements and understandings between the Parties with respect to such subject matter. Neither Party shall be bound other than as expressly provided for herein.
7.4 Independent Contractors. In making and performing this Agreement, the Parties act and shall act at all times as independent contractors, and nothing contained in this Agreement shall be construed or implied to create an agency, partnership, or employer-and-employee relationship between them. At no time shall either Party make commitments, or in the name of, the other Party.
7.5 Notices. All notices required by or relating to this Agreement shall be in writing and shall be sent by means of certified mail, postage prepaid, to the Parties at such addresses as are set forth below, or to such other address as either Party may have given by written notice in accordance with this provision. All notices required by or relating to this Agreement may also be communicated by facsimile, provided that the sender receives and retains confirmation of successful transmittal to the recipient. Such notices shall be effective on the date indicated in such confirmation. In the event that either Party delivers any notice hereunder by means of facsimile transmission in accordance with the preceding sentence, such Party will promptly thereafter send a duplicate of such notice in writing by means of certified mail, postage prepaid, to the receiving Party, addressed as set forth above or to such other address as the receiving Party may have previously substituted by written notice to the sender.
7.6 Amendments; Modifications. This Agreement may not be amended or modified except in a writing duly executed by the Party against whom enforcement of such amendment or modification is sought.
7.7 Successors and Assigns. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the Parties, provided that Client may not assign any of its rights hereunder, nor delegate any of its duties hereunder, without the prior written consent of Centripetal Networks, and further provided that, absent such prior written consent, any attempted assignment or delegation by Client hereunder shall be null, void and of no effect. Centripetal Networks may freely assign this Agreement. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the Parties or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement. The parties acknowledge and agree that Centripetal Networks may assign its right to collect any fees under this Agreement to any third party.
7.8 Severability. If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision shall be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in this Agreement shall not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance, or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable whatsoever.
7.9 Waiver. No waiver under this Agreement shall be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement is sought. Any such waiver shall constitute a waiver only with respect to the specific matter described therein and shall in no way impair the rights of the Party granting such waiver in any other respect or at any other time. Any delay or forbearance by either Party in exercising any right hereunder shall not be deemed a waiver of that right.
7.10 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF VIRGINIA, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF OR TO THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS. FOR PURPOSES OF ALL CLAIMS BROUGHT UNDER THIS AGREEMENT, EACH OF THE PARTIES HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN FAIRFAX COUNTY, VIRGINIA.
7.11 U.S. Government End-Users. Each of the components that constitute the Product is a "commercial item" as that term is defined at 48 C.F.R. 2.101, consisting of "commercial computer software" and/or "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Product with only those rights set forth herein.
7.12 Export Controls. Client will comply with all applicable export and import control laws and regulations in its use of the Product including regulations of the United States Bureau of Industry and Security and other applicable agencies. Client will not, directly or indirectly, export or re-export, or knowingly permit the export or re-export of any Product to any country for which approval is required under the laws of the United States or any other country unless the appropriate export license or approval has first been obtained. Without limiting the generality of the foregoing, each Party agrees that it does not intend to nor will it, directly or indirectly, engage in any export or re-export (a) to any prohibited destination under U.S. export restrictions, or to any national of any such country, wherever located, (b) to any entity or individual who such Party knows or has reason to know is engaging in the design, development or production of nuclear, chemical or biological weapons, or missile technology, or (c) to any entity or individual who has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. Government, including the U.S. Department of Treasury's Office of Foreign Assets Control and the U.S. Bureau of Industry and Security. Client will provide Centripetal Networks with copies of all export registrations and filings with the United States government.
7.13 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.
By signing the CleanINTERNET Service Proposal, parties have caused this Agreement to be executed by their duly authorized officers.