THIS SOFTWARE CONTAINS COMPUTER PROGRAMS AND OTHER PROPRIETARY MATERIAL AND INFORMATION, THE USE OF WHICH IS SUBJECT TO AND EXPRESSLY CONDITIONED UPON ACCEPTANCE OF THIS END USER LICENSE AGREEMENT (THE “AGREEMENT”).
THIS AGREEMENT IS A LEGALLY BINDING DOCUMENT BETWEEN YOU (MEANING THE INDIVIDUAL PERSON OR THE ENTITY THAT THE INDIVIDUAL REPRESENTS THAT HAS OBTAINED THE SOFTWARE AND HARDWARE FOR ITS INTERNAL PRODUCTIVE USE AND NOT FOR OUTRIGHT RESALE) (THE “CUSTOMER”) AND GAMBIT CYBER (WHICH MEANS (I) GAMBIT CYBER BV, IF CUSTOMER IS LOCATED IN NETHERLANDS, (II) THE LOCAL GAMBIT CYBER SALES AFFILIATE, IF CUSTOMER IS LOCATED OUTSIDE THE NETHERLANDS AND IN A COUNTRY IN WHICH GAMBIT CYBER HAS A LOCAL GAMBIT CYBER SALES AFFILIATE; OR (III) OR OTHER AUTHORISED GAMBIT CYBER ENTITY AS IDENTIFIED ON THE GAMBIT CYBER STATEMENT OF WORK, QUOTE, INVOICE, AND/OR PROFORMA INVOICE OR OTHER GAMBIT CYBER ORDERING DOCUMENT, IF CUSTOMER IS LOCATED OUTSIDE NETHERLANDS AND IN A COUNTRY IN WHICH GAMBIT CYBER DOES NOT HAVE A LOCAL SALES AFFILIATE).
Unless Gambit Cyber agrees otherwise in writing, this Agreement governs Customer’s use of the Software and Hardware, except to the extent all or any portion of the Software or Hardware is: (a) the subject of a separate written agreement set forth in a Statement of Work, and/or Quote issued by Gambit Cyber; or (b) governed by a third-party licensor’s terms and conditions. Capitalized terms have meaning stated in the Agreement.
By clicking on the “Agree” or “Accept” or similar button at the end of this Agreement, or proceeding with the installation, downloading, use or reproduction of this Software, or authorizing any other person to do so, you are representing to Gambit Cyber that you are (i) authorized to bind the Customer; and (ii) agreeing on behalf of the Customer that the terms of this Agreement shall govern the relationship of the parties with regard to the subject matter in this Agreement and are waiving any rights, to the maximum extent permitted by applicable law, to any claim anywhere in the world concerning the enforceability or validity of this Agreement.
If you do not have authority to agree to the terms of this Agreement on behalf of the Customer, or do not accept the terms of this Agreement on behalf of the Customer, click on the “Cancel” or “Decline” or other similar button at the end of this Agreement and/or immediately cease any further attempt to install, download or use this Software for any purpose, and remove any partial or full copies made from this Software.
Capitalized terms shall have the meaning as set forth in this Section 1 or as otherwise defined in this Agreement.
A. “Affiliate” means a legal entity that is, directly or indirectly, controlled by, controls, or is under common control with Customer or Gambit Cyber, respectively. “Control” means more than 50% of the voting power or ownership interests of an entity or where the entities are under common control of a parent or other corporate entity with the right to direct the management of such entity. “Customer Affiliate” shall mean any Affiliate of Customer.
B. “Customer Support Tools” means any software or other tools made available by Gambit Cyber to Customer to enable Customer to perform various self-maintenance activities.
C. “Documentation” means the then-current, generally available, written user manuals and online help and guides provided by Gambit Cyber for Products.
D. “Equipment” or “Hardware” means the hardware product that the Software is incorporated in or bundled with and sold as a unit.
E. “Installation Site” means the ship-to address or other location identified on the Gambit Cyber Statement of Work, Quote, Invoice, and/or Proforma Invoice or other document prepared by Gambit Cyber as the site of installation and/or use of a Product, or a subsequent location approved by Gambit Cyber.
F. “Maintenance Aids” means any hardware, software or other tools, other than Customer Support Tools, used by Gambit Cyber to perform diagnostic or remedial activities on Products.
G. “Maintenance Services” and “Support Services” means services for the support and maintenance of Products, as more comprehensively described and governed by the terms of the applicable Maintenance Agreement.
H. “Order” means
(i) a fully executed Gambit Cyber quote or
(ii) a purchase order submitted by Customer to Gambit Cyber that is fully executed or for which Delivery has occurred; or
(iii) a fully executed Statement of Work or Service Brief.
I. “Products” means Equipment and/or Software.
J. “Product Notice” means the notice by which Gambit Cyber informs Customer of product-specific use rights and restrictions, warranty periods, warranty upgrades and maintenance (support) terms. Product Notices may be delivered in a Gambit Cyber quote, an applicable Order, on Gambit Cyber Community, or Gambit Cyber standard agreements posted at https://gambitcyber.org/terms-conditions/.
K. “Services” mean services for the support, maintenance, consulting, installation, implementation, professional services, or other services are governed by Gambit Cyber standard agreements posted at http:// gambitcyber.org/terms-conditions/.
L. “Software” means the software licensed by Customer, consisting of a series of instructions or statements in machine readable, object code form only, including without limitation firmware incorporated in any Hardware.
M. “Software Release” means any subsequent generally available version of Software provided by Gambit Cyber after initial Delivery of Software but does not mean a new Product.
N. “Statement of Work” or “SOW” means a document agreed between Customer and Gambit Cyber containing specifications and other transaction-specific details of the Professional Services to be provided by Gambit Cyber. SOWs may, among other things, consist of
(i) a separately executed, long form services specification; or
(ii) a short form service description (called a “Service Brief”) with an accompanying Gambit Cyber model number identified on a quote.
O. “Supplier(s)” means an entity (other than Customer) whose components, subassemblies, software and/or services have been incorporated into Products and/or Services.
P. “Training” means Gambit Cyber’s generally available training course offerings, whether online, via CD, instructor-led, or any other method of delivery.
Q. “Training Materials” means the materials provided to Customer during Training.
A. Quoting and Purchasing. This Section 2.A shall only apply to purchases which are placed by Customer directly with Gambit Cyber. The description of the Products, Maintenance Services, Services identified in a SOW, and related pricing are as stated in a quote to Customer from Gambit Cyber. Each quote is valid for the time period specified thereon. Customer may order the items on such quote by
(i) issuing a purchase order to Gambit Cyber that references such quote; or
(ii) with the prior approval of Gambit Cyber
(a) signing such quote and returning it to Gambit Cyber; or
(b) sending an email or other writing to Gambit Cyber referencing and ordering the items on such quote. Customer’s order is accepted by Gambit Cyber
(1) issuing an e-mail or other written communication to Customer accepting such order; or
(2) shipping the applicable Products to or commencing performance of the applicable Services. Each SOW (excluding the Service Brief) becomes binding on both parties when it is signed by Gambit Cyber and Customer countersigns and returns the SOW to Gambit Cyber (along with a purchase order if so required in the SOW).
B. Payment. This Section 2.B shall only apply to purchases which are placed by Customer directly with Gambit Cyber. Customer shall pay Gambit Cyber’s invoices in full and in the same currency as the Gambit Cyber invoice within thirty (30) days after the date of Gambit Cyber invoice, with interest accruing thereafter at the lesser of 1.5% per month or the highest lawful rate. The charges due hereunder for Products and Services and any other items provided by Gambit Cyber are exclusive of and Customer shall pay or reimburse Gambit Cyber for all value added (VAT), sales, use, excise, withholding, personal property, goods and services and other taxes, levies, customs and duties resulting from a Customer purchase order, except for taxes based on Gambit Cyber’s net income. If Customer is required to withhold taxes, then Customer will forward any withholding receipts to Gambit Cyber.
C. Transactions with Customer Affiliates. This Section 2.C shall only apply to purchases which are placed by Customer directly with Gambit Cyber or Gambit Cyber Affiliate. Customer Affiliates domiciled in the same country as Customer are entitled to order Products and Services under this Agreement, if the Products and Services are ordered for installation/delivery or performance in such country. Before ordering Products and Services for installation/delivery in any other country, the Customer Affiliate operating in such other country and the local Gambit Cyber Affiliate, if any, that engages in direct sales/licensing activities of Products and Services in the ordinary course of its business for such country, must first execute a local participation agreement that (i) incorporates by reference the terms of this Agreement; and (ii) addresses such issues as are necessary to conform to local country laws and business requirements and practices. Thereafter, a Gambit Cyber quote, referencing the local participation agreement may be issued by such local Gambit Cyber Affiliate to the local Customer Affiliate and a purchase order may be placed pursuant to such Gambit Cyber quote. If there is no such local Gambit Cyber Affiliate, then Gambit Cyber shall advise Customer on any available alternative methods of procurement.
A. Product Delivery. This Section 3.A shall only apply to purchases which are placed by Customer directly with Gambit Cyber. Delivery of Gambit Cyber Product shall be completed in the following manner:
(i) Title and risk of loss for sold Equipment and physical media containing Software shall transfer to Customer upon Gambit Cyber delivery to a carrier at Gambit Cyber designated point of shipment; and
(ii) Software may be provided by
(1) delivery of physical media to a carrier at Gambit Cyber’s designated point of shipment; or
(2) electronic download (when so offered by Gambit Cyber) (“Delivery”). Unless otherwise agreed, a common carrier shall be specified by Gambit Cyber. Software, Documentation, Evaluation Products and Training Materials are licensed only. No title to, or ownership of, Software, Documentation, Evaluation Products, Training Materials, or other materials provided to Customer in the course of performing Services is transferred to Customer.
B. Product Installation and Acceptance. Gambit Cyber’s obligation, if any, to install a Product as part of the Product’s purchase price or licensing fee, is set forth in the Product Notice. Acceptance that a Product operates in substantial conformity to the Product’s Documentation occurs upon Delivery or notice of
availability for electronic download, as applicable. Notwithstanding such acceptance, Customer retains all
rights and remedies set forth in the Section titled “Product Warranty.
A. General License Grant.
Gambit Cyber grants to Customer a nonexclusive and nontransferable (except as otherwise permitted herein) license (with no right to sublicense) to use
(i) Software solely for Customer’s internal business purposes;
(ii) Documentation related to Software solely for the purpose of supporting Customer’s use of Software. Licenses granted to Customer shall continue for the duration as indicated on the Gambit Cyber quote, and commence on Delivery, as applicable; and (iii) with respect to Software that was Delivered to Customer on Equipment, use such Software only on the Equipment with which it was provided. Use of Software may require Customer to complete Gambit Cyber’s then current product registration process, if any, to obtain and input an authorization key or license file.
B. Licensing Models. Software is licensed for use only in accordance with the commercial terms and restrictions of the Software’s relevant licensing model, which are stated in the Product Notice and/or Gambit Cyber quote. For example, the licensing model may provide that Software is licensed for use solely
(i) for a certain number of licensing units;
(ii) on or in connection with a certain piece of equipment, CPU, network or other hardware environment; and/or
(iii) for a specified amount of storage capacity. Microcode, firmware or operating system software needed by the Equipment with which it is shipped to perform its basic functions, is licensed for use solely on such Equipment. Gambit Cyber may require Customer’s purchase order, Quote, Schedule, invoice, or user license certificate for some or all of the Products to contain limitations with respect to the number of users, servers, application-specific usage, hosts, asserting and relying parties, functionality options and/or other restrictions. In such a case, such limitations and restrictions are incorporated herein by reference with respect to the applicable Products.
C. Licensed Copies. All Software licenses granted herein are for use of object code only. Customer is permitted to copy Software, in accordance with the license, the quote, and the Product Notice. Unless otherwise agreed to by the parties, or unless such additional rights are granted in the Product Notice, Customer may only use one production copy of the Gambit Cyber Software. Customer may copy Documentation insofar as reasonably necessary for Customer’s authorized internal use of Software. With respect to any and all copies of the Software and Documentation, Customer shall ensure that each copy contains all titles, trademarks, and copyright and restricted rights notices, and that all such copies shall be subject to the terms and conditions of this Agreement.
D. License Restrictions. Customer shall not, without Gambit Cyber’s prior written consent
(i) sublicense, or use Software in a service bureau, application service provider or similar capacity; or
(ii) disclose to any third party the results of any comparative or competitive analyses, benchmark testing or analyses of Gambit Cyber Products performed by or on behalf of Customer;
(iii) make available Software in any form to anyone other than Customer’s employees, or contractors, which require access to Software on behalf of Customer in a manner permitted by this Agreement; or
(iv) transfer Software to an Affiliate or a third party. If the Software contains or is bundled with third party products, then Customer may use such third party products solely for use with the particular Software that Customer has licensed from Gambit Cyber as set forth in the applicable Documentation, and/or the Product Notice. Customer shall not use any third-party product embedded in or bundled with the Gambit Cyber Software as a standalone program or in any way independently from the Software. Customer shall not, and shall not authorize any third party to, modify, enhance, supplement, create derivative works from, reverse assemble, reverse engineer, decompile or otherwise reduce to human readable form Software without Gambit Cyber’s prior written consent.
E. Software Releases. Software Releases shall be subject to the license terms applicable to Software.
F. No Combination with Open Source Software. Some third-party license terms require that computer
code be generally
(a) disclosed in source code form to third parties,
(b) licensed to third parties for the
purpose of making derivative works, or
(c) redistributable to third parties at no charge (collectively, “Excluded License Terms”). If Gambit Cyber grants Customer the right to incorporate, modify, combine or distribute any of the Gambit Cyber Software licensed hereunder, then Customer shall not incorporate, modify, combine or distribute the Gambit Cyber Software with any other computer code in a manner that would subject the Gambit Cyber Software to Excluded License Terms.
G. Reservation of Rights. Gambit Cyber reserves all rights not expressly granted to Customer in this Agreement. Nothing in this Agreement shall limit in any way Gambit Cyber’s right to develop, use, license,
create derivative works of, or otherwise exploit the Software, or to permit third parties to do so.
H. Audit. Gambit Cyber (including its independent auditors) shall have the right to
(i) audit Customer’s usage of the Products no more than once annually to confirm compliance with the terms of the Agreement and the Schedule or Quote at Gambit Cyber’s expense, which Gambit Cyber shall schedule any such audit at least thirty (30) days in advance and which any such audit shall be performed during regular business hours and shall not unreasonably interfere with Customer’s business activities; and
(ii) on an ongoing basis, remotely monitor the quantity of licenses in use by Customer. Should such audit or remote monitoring indicate usage of Products in excess of that for which Customer has paid, in addition to any other rights Gambit Cyber may have for breach of this Agreement and the Schedule or Quote, Customer shall promptly reconcile its account with Gambit Cyber and pay the Gambit Cyber invoice, if any, that results from such reconciliation.
I. Termination. Gambit Cyber may terminate licenses for cause if Customer breaches the terms governing use of Software and fails to cure within thirty (30) days after receipt of Gambit Cyber’s written notice thereof. Upon termination of a license, Customer shall cease all use and return or certify destruction of applicable Software (including copies) to Gambit Cyber.
J. Other License Terms. If a particular Product or component is covered by its own license terms (“Separate License Terms”), typically in the form of a
(i) “click-to-accept” agreement included as part of the installation and/or download process, or
(ii) “shrink-wrap” agreement included in the packaging for the Product, or
(iii) notice indicating that by installation and/or use thereof the related license terms apply, then, in case of conflict with the terms of this Agreement, such Separate License Terms shall
(a) prevail with regard to Products or components for which Gambit Cyber is not the licensor; and
(b) not prevail with regard to a Product or component for which Gambit Cyber is the licensor.
A. Equipment. Gambit Cyber warrants that Equipment, and Equipment upgrades installed into Equipment, when purchased from Gambit Cyber and operated with normal usage and regular recommended service, shall be free from material defects in materials and workmanship, and perform substantially in accordance with Documentation provided for Equipment until the expiration of the warranty period. Unless otherwise noted on the Product Notice or Gambit Cyber quote, the warranty coverage for the microcode, firmware or operating system software that enables Equipment to perform as described in its Documentation shall be no less than that which applies to such Equipment. To the extent specified in the Product Notice, Support Services in the form of the Support Option noted on the Product Notice are included free of charge during the Equipment warranty period. In some cases, a Support Option upgrade during the Equipment warranty period may be available separate purchase.
B. Software. Gambit Cyber represents, warrants and covenants to Customer that
(a) will substantially conform to the applicable Documentation for such Software and that any physical media provided by Gambit Cyber will be free from manufacturing defects in materials and workmanship until the expiration of the warranty period;
(b) Gambit Cyber owns and has legal and beneficial title to and/or have the right to use its intellectual property rights in connection with the provision of the Software contained in or contemplated by this Agreement and any agreement herein provided for;
(c) neither Gambit Cyber’s grant of the rights or licenses hereunder nor its provision of the Software, or other obligations under this Agreement does or at any time will:
(i) conflict with or violate any applicable law, including any applicable laws;
(ii) require the consent, approval, or authorization of any governmental or regulatory authority or other third
party; or
(iii) require the provision of any payment or other consideration by Customer to any third party, and Gambit
Cyber shall promptly notify Customer in writing if it becomes aware of any change in any applicable law
that would preclude Gambit Cyber’s performance of its obligations hereunder; and
(d) the Software, when used by Customer, will be free of any virus or unauthorized codes. Gambit Cyber does not warrant that the operation of Software shall be uninterrupted or error free, that all defects can be corrected, or that Software meets Customer’s requirements, except if expressly warranted by Gambit Cyber in its quote. Support Services for Software are available for separate purchase and the Support Options are identified at the Product Notice.
C. Duration. Unless otherwise stated on the Gambit Cyber quote, the warranty period from Gambit Cyber for Products shall be as set forth at the Product Notice. Equipment warranty commences upon Delivery. Software warranty commences upon Delivery of the media or the date Customer is notified of electronic availability, as applicable. Equipment upgrades are warranted from Delivery until the end of the warranty period for the Equipment into which such upgrades are installed.
D. Customer Remedies.
i. Equipment. Gambit Cyber’s entire liability and Customer’s exclusive remedies under the warranties described in this Section shall be for Gambit Cyber, at its option, to remedy the non-compliance or to replace the affected Equipment, and if Gambit Cyber is unable to effect such within a reasonable time, then Gambit Cyber shall refund the amount paid by Customer for the affected Equipment as depreciated on a straight line basis over a five (5) year period, upon return of such Equipment to Gambit Cyber. All replaced Equipment or portions thereof shall be returned to and become the property of Gambit Cyber. If such replacement is not so returned, Customer shall pay Gambit Cyber’s then current spare parts price therefore. Gambit Cyber shall have no liability hereunder after expiration of the applicable warranty period.
ii. Software. If Customer discovers a non-conformity in the Software during the warranty period, then Gambit Cyber entire liability and Customer’s exclusive remedy shall be as follows: Customer shall submit to Gambit Cyber a written report describing the nonconformity in sufficient detail to permit Gambit Cyber to reproduce such non-conformity. If Gambit Cyber successfully reproduces the reported nonconformity and confirms that it is a non-conformity, then Gambit Cyber shall use commercially reasonable efforts, at its option, to
(1) correct the nonconformity,
(2) provide a work around or software patch (a “Fix”), or
(3) replace the Gambit Cyber Software. This warranty applies only to the initial delivery of the Gambit Cyber Software.
E. Exclusions. Warranty does not cover problems that arise from
(i) accident or neglect of the Equipment by Customer or any third party;
(ii) any third party items or services with which the Product is used or other causes beyond Gambit Cyber’s control;
(iii) installation, operation or use not in accordance with Gambit Cyber’s instructions or the applicable Documentation;
(iv) use in an environment, in a manner or for a purpose for which the Product was not designed; or
(v) modification, alteration or repair by anyone other than Gambit Cyber or its authorized representatives; or
(vi) in case of Equipment only, causes not attributable to normal wear and tear (collectively, the “Excluded Claims”). Gambit Cyber has no obligation whatsoever for Software installed or used beyond the licensed use, for Equipment which was moved from the Installation Site without Gambit Cyber’s consent or whose original identification marks have been altered or removed.
F. No Further Warranties. EXCEPT AS EXPRESSLY STATED HEREIN, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WITH REGARD TO PRODUCTS, SERVICES OR ANY OTHER ITEMS OR MATTERS ARISING HEREUNDER, GAMBIT CYBER (INCLUDING ITS SUPPLIERS) MAKES NO OTHER EXPRESS WARRANTIES, WRITTEN OR ORAL, AND DISCLAIMS ALL IMPLIED WARRANTIES. INSOFAR AS PERMITTED UNDER APPLICABLE LAW, ALL OTHER WARRANTIES ARE SPECIFICALLY EXCLUDED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE.
A. Maintenance Services. Gambit Cyber shall provide Maintenance Services for Software licensed to Customer and the Equipment for the period specified on the applicable Schedule or Quote.
B. Other Services. Gambit Cyber will provide other pre-packaged Services including Training Services (other than Maintenance Services which shall be provided pursuant to Section 6.A above), subject to availability, in accordance with Gambit Cyber’s price list in effect at the time such Services are ordered.
A. Customer Indemnity. Customer will defend and indemnify Gambit Cyber and its Affiliates against any third party claim resulting or arising from:
i. Customer’s failure to obtain any appropriate license, intellectual property rights, or other permissions, regulatory certifications, or approvals associated with technology or data that Customer provides to Gambit Cyber or its Affiliates, or with non-Gambit Cyber software or other components that Customer directs or requests that Gambit Cyber or its Affiliates use with, install, or integrate as part of the Products or Services;
ii. Customer’s violation of Gambit Cyber’s or its Affiliates’ proprietary rights;
iii. Customer’s misrepresentation of facts regarding an export license or any allegation made
against Gambit Cyber or its Affiliates due to Customer’s violation or alleged violation of applicable export
laws;
B. Indemnification Process. A party’s duty to defend and indemnify under this section is contingent upon the party seeking indemnity:
(i) sending prompt written notice of the matter to the party providing indemnity and taking reasonable steps to mitigate damages;
(ii) granting to the party providing indemnity the sole right to control the defense and resolution of the matter; and
(iii) cooperating with the party providing indemnity in the defense and resolution of the matter and in mitigating any damages.
Limitations on Damages. The limitations, exclusions and disclaimers stated below apply to any and all disputes, claims, or controversies (whether in contract, tort, or otherwise) related to or arising out of the Agreement or any quote or Order (“Dispute”). The terms of this Section are agreed allocations of risk constituting part of the consideration for Gambit Cyber’s sale of Products and Services to Customer and will apply even if there is a failure of the essential purpose of any limited remedy, and regardless whether a party has been advised of the possibility of the liabilities.
A. Limitation on Direct Damages. Except for the Exceptions stated below in Section 8F, each party’s total liability arising out of any Dispute or any matter under this Agreement, is limited to the amount Customer paid to Gambit Cyber during the twelve months before the date that the matter or Dispute arose for the product, services, or both that are the subject of the Dispute, but excluding amounts received as reimbursement of expenses or payment of taxes.
B. No Indirect Damages. Except for the Exceptions stated below in Section 8F, neither Gambit Cyber nor Customer has liability to the other for special, consequential, exemplary, punitive, incidental, or indirect damages, or for lost profits, loss of revenue, loss or corruption of data, or loss of use, or procurement of substitute products or services.
C. Regular Back-ups. Customer is solely responsible for its data. Customer must back up its data before Gambit Cyber performs any remedial, upgrade, or other work on Customer’s production systems. If applicable law prohibits exclusion of liability for lost data, then Gambit Cyber will only be liable for the cost of the typical effort to recover the lost data from Customer’s last available back-up.
D. Limitation Period. Except as stated in this Section, all claims must be made within the period specified by applicable law. If the law allows the parties to specify a shorter period for bringing claims, or the law does not provide a time at all, then claims must be made within twelve months after the cause of action accrues.
E. Suppliers and Affiliates. The foregoing limitations shall also apply in favor of Gambit Cyber’s Suppliers and Affiliates.
F. Exceptions. The limitations on direct and indirect damages in this Section 8 shall not apply to (i) Customer’s obligations to pay for Products and Services,
(ii) Customer’s violation of the restrictions on use of Products and Services or Gambit Cyber’s or its Affiliates’ intellectual property rights,
(iii) a party’s indemnity obligation stated in the Section above titled “Indemnity”,
(iv) damages to real and/or personal property, including bodily injury and death; or
(v) a party’s gross negligence, willful misconduct.
Customer’s purchase of licenses for Software and access to related technology (“Materials”) are for its own use, not for resale, export, re-export, or transfer. Customer is subject to and responsible for compliance with the export control and economic sanctions laws of the EU and United States and other applicable jurisdictions. Materials may not be used, sold, leased, exported, imported, re-exported, or transferred except with prior written authorization by Gambit Cyber or its Affiliates and in compliance with such laws.
“Confidential Information” means any information that is marked “confidential” or “proprietary” or any other similar term or in relation to which its confidentiality should by its nature be inferred or, if disclosed orally, is identified as being confidential at the time of disclosure and, within two
(2) weeks thereafter, is summarized, appropriately labeled and provided in tangible form. Confidential Information does not include information that is
(i) rightfully in the receiving party’s possession without prior obligation of confidentiality from the disclosing party;
(ii) a matter of public knowledge;
(iii) rightfully furnished to the receiving party by a third party without confidentiality restriction; or
(iv) independently developed by the receiving party without reference to the disclosing party’s Confidential Information. Each party shall
(a) use Confidential Information of the other party only for the purposes of exercising rights or performing
obligations in connection with this Agreement or any purchase order hereunder; and
(b) protect from disclosure to any third parties, by use of a standard of care equivalent to that as used by
recipient to protect its own information of a similar nature and importance, and, no less than the use of
reasonable care, any Confidential Information disclosed by the other party for a period commencing upon the
date of disclosure until three
(3) years thereafter, except with respect to
(1) Customer data to which Gambit Cyber may have access in connection with the provision of Services, which
shall remain Confidential Information until one of the exceptions stated in the above definition of
Confidential Information applies; and
(2) Confidential Information that constitutes, contains or reveals, in whole or in part, Gambit Cyber’s
proprietary rights, which shall not be disclosed by the receiving party at any time, and
(3) Products, Software Releases, Evaluation Products, Training Materials and Documentation, which shall remain
Confidential Information until one of the exceptions stated above applies. Customer may not disclose the
results of any performance tests of the Software to any third party without Gambit Cyber’s prior written
approval. Notwithstanding the foregoing, the receiving party may disclose Confidential Information
(A) to its Affiliate for the purpose of fulfilling its obligations or exercising its rights hereunder as long as such Affiliate complies with the foregoing; and
(B) to the extent required by law or regulation (provided the receiving party has given the disclosing party prompt notice to the extent permitted by law).
Each party acknowledges that any breach of the provisions of this Section 10 would result in serious and irreparable injury to the non- breaching party for which the non-breaching party cannot be adequately compensated. Each party agrees, therefore, that, in addition to any other remedy that the nonbreaching party may have, the non-breaching party is entitled to seek both temporary and permanent injunctive relief without the necessity of proving actual damages.
This Agreement and each Order shall take effect on the effective date of the Order and continue until
(x) terminated for cause; or
(y) the subscription under such Order has expired; or
(z) the applicable contract expires (the “Term”). Each party may terminate this Agreement or any Order by providing written notice to the other party if the other party commits a material breach which cannot be cured or, if it can be cured, is not cured by the breaching party within 30 days following the non-breaching party’s notice. For Products or Services that are provided on a subscription basis, the initial term of such subscription shall be as stated in the applicable Order, and if not stated shall be one
(1) years (“Initial Term.”) Following the Initial Term, the Order shall be renewed for additional one-year periods (unless a different duration is stated in the applicable Order) at the same discount (unless volumes or term have been reduced) off the then current list pricing and annual price adjustments (“Renewal Term”). The renewal rate shall not include one-time discounts, credit or deal registration applied to any previous Term. No rights of termination for convenience will apply during the Initial Term or any Renewal Term. Any provision that by its nature or context is intended to survive any termination or expiration, including but not limited to provisions relating to payment of outstanding fees, confidentiality and liability, shall so survive. Upon any termination of this Agreement or Customer’s license to use the Software, upon Gambit Cyber’s request, Customer shall promptly return to Gambit Cyber, or destroy and certify in writing to Gambit Cyber, that it has destroyed the original and all copies, in whole or in part, in any form, of the Software, Documentation, and any other Confidential Information disclosed by Gambit Cyber under this Agreement. The termination of this Agreement shall not
(a) discharge any payment obligations accrued as of the effective date of such termination, even if such obligations are payable after the termination date, or
(b) entitle Customer to a refund of any amounts previously paid to Gambit Cyber, except where such termination is a result of Gambit Cyber breach. No rights of termination for convenience will apply during the Initial Term or any Renewal Term, and any provisions to the contrary will be deemed amended to give effect to this provision.
A. References. Each party shall not, and shall not authorize or assist another to, originate, produce, issue or release any written publicity, news release, marketing collateral or other publication or public announcement, relating in any way to this Agreement, without the prior written approval of the other, which approval shall not be unreasonably withheld; provided, however, that Gambit Cyber may identify Customer for reference purposes and use Customer’s logo in its marketing material unless and until Customer expressly objects in writing.
B. Notices. Any notices hereunder shall be in writing, and shall be deemed given when delivered (i) in person,
(ii) by overnight courier, upon written confirmation of receipt,
(iii) by certified or registered mail, with proof of delivery, or
(iv) by email, with confirmation of receipt. Notices shall be sent to the address or email address set forth above, or to such other address or email address as provided to the other party in writing.
C. Entire Agreement. This Agreement and if Customer is purchasing directly from Gambit Cyber, each quote, schedule and purchase order
(i) comprise the complete statement of the agreement of the parties with regard to the subject matter thereof; and
(ii) may be modified only in a writing with evidence of acceptance by both parties. All terms of any purchase order or similar document provided by Customer, including but not limited to any pre-printed terms thereon and any terms that are inconsistent or conflict with this Agreement and/or Gambit Cyber Statement of Work, quote or schedule, shall be null and void and of no legal force or effect, even if Gambit Cyber does not expressly object to such terms when accepting a purchase order or similar document provided by Customer. In case of any conflict between a schedule or quote and this Agreement, the schedule or quote shall control.
D. Force Majeure. Except for payment of fees, if a party’s performance of its obligations is prevented or interfered with due to any force majeure event, including strikes, riots, insurrection, terrorism, cyberattacks, epidemics, pandemics, fires, natural disasters, acts of God, war, governmental action, or any other cause which is beyond the reasonable control of such party (“Non-Performance Cause”), such Party shall
(i) promptly notify the other; and
(ii) be excused from the performance of the affected obligations on a day-for-day basis, during the force majeure event;
(iii) use reasonable efforts to avoid or remove the Non-Performance Cause; and
(iv) move to resume performance as soon as possible after the Non-Performance Cause is removed or ceases.
E. Assignment. Customer shall not assign this Agreement or a purchase order or any right herein or delegate any performance without Gambit Cyber’s prior written consent, which consent shall not be unreasonably withheld. Gambit Cyber may use Gambit Cyber Affiliates or other sufficiently qualified subcontractors to provide Services to Customer, provided that Gambit Cyber shall remain responsible to Customer for the performance thereof.
F. Governing Law. Any dispute or claim (including non-contractual disputes or claims) arising shall be governed by and construed in accordance with the Dutch law of Netherlands. Each Party irrevocably agrees that the courts of Netherlands shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the agreement or its subject matter or formation.
G. Waiver. No waiver shall be deemed a waiver of any prior or subsequent default hereunder.
H. Independent Contractors. The parties shall act as independent contractors for all purposes under this Agreement. Nothing contained herein shall be deemed to constitute either party as an agent or representative of the other party, or both parties as joint venturers or partners for any purpose. Neither party shall be responsible for the acts or omissions of the other party, and neither party shall have authority to speak for, represent or obligate the other party in any way without the prior written approval of the other party.
I. Partial Invalidity. If any part of this Agreement, a purchase order, SOW or a Gambit Cyber quote is held unenforceable, the validity of the remaining provisions shall not be affected.
Customer may not engage any third parties to conduct security audits of Gambit Cyber Products without the prior written consent of Gambit Cyber.
A. General. This Agreement shall also apply to “Evaluation Products” (meaning Products made available by Gambit Cyber directly to Customer for a limited period of time at no charge to enable Customer to evaluate such Products prior to making a final decision on licensing or purchasing such from Gambit Cyber), and “Loaned Products” (meaning Products made available by Gambit Cyber directly to Customer for a limited period of time at no charge), subject to the following provisions.
B. Schedule Content. The Products, period of use, Installation Site and other transaction-specific conditions shall be mutually agreed between Gambit Cyber and Customer in the form of an evaluation or loan schedule referencing this Agreement, and the signed schedule shall be considered the equivalent of a Customer purchase order under this Agreement.
C. Title. No title shall pass to Customer, but shall remain with Gambit Cyber. Notwithstanding any deviating terms in a “click-to accept” or “shrink-wrap” license, all licenses to use Software expire at the end of the evaluation or loan period.
D. Return. Customer shall promptly return Evaluation and Loaned Products upon expiration of the agreed period or when terminated by Gambit Cyber for convenience by giving thirty (30) days’ written notice, whichever occurs first.
E. Data Security Options. Customer is fully responsible for the permanent erasure of all of its information, including without limitation, all personally identifiable and other protected information placed on, and by use of a method that does not cause damage to, Evaluation or Loaned Products before such are returned to Gambit Cyber, and for all costs associated with such erasure (descriptions and charges associated with Gambit Cyber’s then currently offered data erasure services are available on request). Gambit Cyber is not responsible for any information contained on such items notwithstanding anything to the contrary contained herein.
F. Risk of Loss. The risk of loss or damage to any Evaluation or Loaned Product passes to Customer upon arrival at the Installation Site and remains with Customer until such Product arrives at the return location specified by Gambit Cyber. Customer is also fully responsible for the de-installation, and any costs associated with such de-installation, of any data storage devices placed into existing Products. Gambit Cyber is not responsible for any information contained on any Evaluation or Loaned Products notwithstanding anything to the contrary herein. Customer shall provide reasonable insurance coverage for Evaluation or Loaned Products during the period in which Customer bears the risk of loss.
G. Use. Customer may use Evaluation Products and Loaned Products free of charge, but, in the case of Evaluation Products, solely for the purpose of evaluating the Products and not in a production environment.
H. Limitation of Liability. Without prejudice to any further limitations on Gambit Cyber’s liability (which shall also apply to Evaluation and Loaned Products), Evaluation and Loaned Products are provided “AS IS” and any warranty or damage claims against Gambit Cyber in connection therewith are hereby excluded, except in the event of fraud or willful misconduct of Gambit Cyber.