HTCT SUBSCRIPTION AGREEMENT
THIS SUBSCRIPTION AGREEMENT (THIS “AGREEMENT”) GOVERNS THE LICENSE AND/OR ACCESS OF HTCT SUBSCRIPTIONS PROVIDED BY HACKING THE CYBER THREAT LLC, AND/OR ITS AFFILIATES (“HTCT”).
PLEASE READ THIS AGREEMENT CAREFULLY. CLICKING ON THE “YES” OR “I ACCEPT” BUTTON (OR OTHER BUTTON OR MECHANISM DESIGNED TO ACKNOWLEDGE AGREEMENT TO THE TERMS OF THIS AGREEMENT), DOWNLOADING, INSTALLING, ACCESSING OR USING HTCT SUBSCRIPTIONS CONSTITUTES ACCEPTANCE OF THIS AGREEMENT. WITHOUT LIMITING THE FOREGOING, YOU ACKNOWLEDGE THAT YOUR SUBMISSION OF AN ORDER FOR THE SUBSCRIPTIONS CONSTITUTES AN ACCEPTANCE OF THIS AGREEMENT.
IF YOU AGREE TO THIS AGREEMENT ON BEHALF OF A BUSINESS, GOVERNMENT, OR OTHER ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE POWER AND AUTHORITY TO BIND SUCH BUSINESS, GOVERNMENT, OR OTHER ENTITY TO THIS AGREEMENT, AND YOUR AGREEMENT TO THESE TERMS WILL BE TREATED AS THE AGREEMENT OF SUCH BUSINESS, GOVERNMENT, OR OTHER ENTITY. AS USED IN THIS AGREEMENT, “CUSTOMER” REFERS TO THE BUSINESS, GOVERNMENT, OR OTHER ENTITY ON WHOSE BEHALF YOU HAVE ENTERED INTO THIS AGREEMENT.
IF YOU ARE UNWILLING TO AGREE TO THIS AGREEMENT, OR YOU DO NOT HAVE THE RIGHT, POWER AND AUTHORITY TO ACT ON BEHALF OF AND BIND THE CUSTOMER, DO NOT CLICK ON THE BUTTON AND DO NOT INSTALL, DOWNLOAD, ACCESS, OR OTHERWISE USE THE SUBSCRIPTIONS.
“Confidential Information” means any non-public, confidential, or proprietary information of HTCT that should reasonably be understood by the receiving Customer to be confidential because of (i) legends or other markings; (ii) the circumstances of disclosure; or (iii) the nature of the information, which may be disclosed either directly or indirectly, in writing, visual, orally or by inspection of tangible objects (including without limitation documents, prototypes, samples, products, software, product specifications and white papers) or other means. Confidential Information includes but is not limited to technology and technical information, inventions, know-how, source code, data, algorithms, methods and processes, trade secrets, designs, techniques, analyses, models, strategies and objectives.
“Customer Data” means the information submitted or provided by Customer for use with the Subscription.
“Documentation” means the applicable Subscription materials provided by HTCT to its customers (which may be in electronic format), as amended from time to time by HTCT.
“Intellectual Property Rights” means copyrights (including, without limitation, the exclusive right to use, reproduce, modify, distribute, publicly display and publicly perform the copyrighted work), trademark rights (including, without limitation, trade names, trademarks, service marks, and trade dress), patent rights (including, without limitation, the exclusive right to make, use and sell), trade secrets, moral rights, right of publicity, authors’ rights, contract and licensing rights, goodwill and all other intellectual property rights as may exist now and/or hereafter come into existence and all renewals and extensions thereof, regardless of whether such rights arise under the law of the United States or any other state, country or jurisdiction.
“Subscription Services” or “Subscription” means the subscription service provided by HTCT.
- PROVISION OF SUBSCRIPTION SERVICES; CUSTOMER RESPONSIBILITIES.
- Customer Responsibilities. Customer is responsible for the use of the Subscription solely by Customer in compliance with this Agreement, including any applicable exhibits, addenda, Documentation and applicable laws and government regulations. Customer will use commercially reasonable efforts to prevent unauthorized access to or use of HTCT IP and Subscriptions, and will notify HTCT promptly of such unauthorized use. Customer shall maintain any HTCT access credentials in confidence, and shall not distribute, share, or otherwise allow others to use the Subscription Services provisioned to Customer.
- Evaluations. If HTCT provides any Subscriptions, along with any other related materials and documentation for Customer’s evaluation purposes (collectively, “Evaluation Products”), then HTCT grants Customer a limited, nontransferable, non-assignable, non-sublicensable right to use the Evaluation Product, subject to the terms of this Agreement. Customer may use the Evaluation Product for its own internal evaluation purposes from the date in which Customer first installs, downloads or accesses the Evaluation Product, until the expiration date set forth in the activation email or, if no expiration date is set forth in the activation email, for a period of up to thirty (30) days from the date of installation, download or access of the Evaluation Product (the “Evaluation Period”). HTCT may, at its sole discretion, provide reasonable maintenance and support for the Evaluation Products during the Evaluation Period. Evaluation Products are provided to Customer “AS-IS”, and to the extent permitted by applicable law, HTCT disclaims all indemnities and warranties relating to the evaluation of the Evaluation Product, express or implied, including but not limited to any warranties against infringement of third party rights, merchantability, and fitness for a particular purpose. Customer acknowledges that the Evaluation Product is HTCT’s Intellectual Property. At the end of the Evaluation Period, all evaluation licenses granted herein will automatically terminate and Customer will delete or return Evaluation Products in Customer’s possession, and provide written certification of such destruction or return in writing to HTCT. If applicable, Customer understands that HTCT may disable access to the Evaluation Products automatically at the end of the Evaluation Period, without notice to Customer. This Section will take precedence over any contradictory language in this Agreement as it relates to an Evaluation Product.
III. TERM AND TERMINATION.
- Term. The term of each Subscription is one course of a specified length or, if no period of time for the applicable Subscription is specified, for a period of one (1) year from the date in which access to the Subscription was made available to Customer (“Initial Subscription Term”).
- Termination for Material Breach; Suspension. HTCT may terminate this Agreement if the Customer commits a material breach. Customer acknowledges and agrees that HTCT may, in its sole and absolute discretion, immediately terminate this Agreement or suspend Customer’s access to any Subscription Services in connection with any actual, alleged or suspected: (i) breach of confidentiality obligations and license or use restrictions set forth in this Agreement, (ii) direct or indirect technical or security issues or problems caused by or relating to Customer, or (iii) violations of applicable law. If HTCT terminates this Agreement due to Customer’s material breach, HTCT will not refund any amounts to Customer. If Customer terminates Subscription Services other than for HTCT’s material breach, Customer will not receive a refund or credit of any Fees already paid or due to HTCT and, if applicable, all outstanding Subscription Services Fees will accelerate and become immediately due and payable.
- Effect of Termination. Upon termination for any reason, all access rights and licenses granted herein will immediately terminate.
- Survival. The provisions of Section IV (Fees, Taxes and Expenses), Section V (Confidentiality and Data Privacy), Section VI (Intellectual Property), Section VII(A) (Disclaimers), Section IX (Limitation of Liability), Section XI (Miscellaneous), and all accrued payment obligations, will survive the termination of this Agreement.
- FEES, TAXES AND EXPENSES.
- Customer will pay the fees for the Subscription Services set forth in the applicable invoice. All fees are non-cancelable and non-refundable. Fees are exclusive of all tariffs, duties or taxes imposed or levied by any government or governmental agency, including without limitation, federal, state and local sales, use, value added or other similar taxes (collectively, “Taxes”) and Customer is responsible for paying all taxes applicable to the Subscription Services provided by HTCT to Customer.
- Customer agrees to pay, in full, any undisputed invoice submitted by HTCT within thirty (30) days of receipt of such invoice if no date is specified. If Customer fails to make any payment when due, then interest at a rate of one and one-half percent (1.5%) per month will accrue on such unpaid, undisputed amounts, calculated from the date the payment was originally due. If Customer disputes any invoice, it will promptly notify HTCT of the disputed amount, but in no event later than the date payment is due, with an explanation of the reasons therefore.
- CONFIDENTIALITY AND DATA PRIVACY.
- Customer will: (i) not disclose any Confidential Information to third parties without HTCT’s prior written consent; (ii) not copy, reverse engineer, disassemble, create any works from, or decompile any prototypes, software or other tangible objects which embody HTCT’s Confidential Information; and (iii) comply with, and obtain all required authorizations arising from, all U.S. and other applicable export control laws or regulations. Any reproduction of Confidential Information requires HTCT’s prior written consent and will remain the property of HTCT. Any reproductions will contain any and all notices of confidentiality contained on the original Confidential Information.
- HTCT retains all right, title and interest to its Confidential Information. Customer acknowledges that the disclosure of Confidential Information may cause irreparable injury to HTCT. HTCT will, therefore, be entitled to seek injunctive relief upon a disclosure or threatened disclosure of any Confidential Information, without a requirement that HTCT prove irreparable harm and without the posting of a bond. This provision will not in any way limit such other remedies as may be available to HTCT at law or in equity. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS.” HTCT AKES NO WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING ITS ACCURACY, COMPLETENESS OR PERFORMANCE.
- If use of the Subscriptions includes the processing of personal data (as described in the General Data Protection Regulation (EU) 2016/679), when performing its obligations under this Agreement, the following will apply:
- Customer will ensure that: (i) Customer is entitled to transfer the relevant personal data to HTCT so that HTCT may lawfully use, process and transfer the personal data on Customer’s behalf and in accordance with this Agreement; and (ii) the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection laws.
- HTCT will: (i) process personal data in compliance with and subject to this Agreement and any lawful and reasonable instructions received from Customer; (ii) not use or process or permit any HTCT subcontractors to use or process, any personal data except to the extent necessary to perform its obligations under this Agreement; (iii) implement and maintain adequate and reasonable technical and organizational safeguards designed to protect against the unauthorized or accidental access, loss, alteration, disclosure or destruction of personal data in HTCT’s possession or control; (iv) ensure that it has appropriate procedures in place designed to comply with applicable data protection laws and will take all reasonable steps to ensure that persons employed by it, and other persons engaged at its place of work, are aware of and comply with applicable data privacy laws and regulations.
- HTCT may process or otherwise transfer personal data in or to any country outside the European Economic Area or any country not deemed adequate by the European Commission pursuant to applicable data protection laws to the extent necessary for the provision of the Subscription Services. If required, HTCT will enter into the EU Standard Contractual Clauses as approved by the European Commission for ensuring an adequate level of data protection in respect of the personal data that will be processed or transferred.
- INTELLECTUAL PROPERTY.
- Limited License. Subject to Customer’s compliance with this Agreement, HTCT grants Customer a limited license, which is non-exclusive, non-transferable, and non-sublicensable, to access, view, and use the Subscription solely for its personal purposes. No HTCT IP may be copied, reproduced, republished, uploaded, posted, transmitted, distributed, used for public or commercial purposes, unless written permission is expressly granted by HTCT. Customer may not distribute, modify, transmit or use the content of the HTCT IP, including any and all software, tools, graphics and/or sound files, for public or commercial purposes without the express written permission of HTCT.
- Intellectual Property of HTCT; Restrictions. All Intellectual Property Rights in the HTCT IP belong exclusively to HTCT or its licensors. Customer acknowledges and agrees that it will not (and will not allow any third party), in whole or in part, to directly or indirectly: (i) disassemble, decompile, reverse compile, reverse engineer or attempt to discover any source code or underlying ideas or algorithms of any HTCT IP (except to the limited extent that applicable law prohibits reverse engineering restrictions solely for interoperability purposes), (ii) sell, resell, distribute, sublicense or otherwise transfer, the HTCT IP, or make the functionality of the HTCT IP available to any other party through any means (unless HTCT has provided prior written consent), or (iii) reproduce, alter, modify or create derivatives of the HTCT IP (unless as expressly permitted in this Agreement). Customer will maintain the copyright notice and any other notices that appear on HTCT IP, including any interfaces related to the Subscriptions.
- Aggregate Data; Feedback. Notwithstanding the foregoing, HTCT owns all Intellectual Property Rights in and to Aggregate Data, and may use, reproduce, sell, publicize or otherwise exploit Aggregate Data in any way, in its sole discretion. “Aggregate Data” refers to Customer Data that is de-identified (stripped of any information used to identify Customer, including personal data). Aggregate Data will also include statistical information related to the use and performance of Subscription Services, provided that such statistical information is de-identified. Customer grants to HTCT a worldwide, perpetual, irrevocable, royalty-free, fully paid-up license to use and exploit any suggestion, enhancement request, recommendation, correction or other feedback (“Feedback”) provided by Customer relating to the Subscription Services. Feedback will not include Confidential Information.
- Intellectual Property of Customer; Restrictions. Customer grants to HTCT the worldwide right to use, access, host, copy, transmit and display Customer Data, as reasonably necessary for HTCT to perform its obligations in accordance with this Agreement. HTCT may disclose Customer Data to its third-party contractors and service providers (including cloud service providers) to the extent necessary to provide the applicable Subscription Services in accordance with this Agreement; provided that such third-party contractors and service providers are bound by confidentiality obligations similar to the provisions of this Agreement.
VII. WARRANTIES AND DISCLAIMERS.
- DISCLAIMERS. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, ALL SOFTWARE, SUBSCRIPTIONS, AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTY WHATSOEVER AND HTCT EXPRESSLY DISCLAIMS, TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, ALL WARRANTIES, EXPRESS, IMPLIED AND STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NONINFRINGEMENT, OR ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE. HTCT ALSO MAKES NO WARRANTY REGARDING NONINTERRUPTION OF USE OR FREEDOM FROM BUGS, AND MAKES NO WARRANTY THAT SOFTWARE, SERVICES OR SUBSCRIPTIONS WILL BE ERROR-FREE. HTCT DOES NOT GUARANTEE ANY SPECIFIC RESULTS FROM USING THE SOFTWARE, SERVICES AND SUBSCRIPTIONS.
- NEITHER HTCT NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR MAINTAINING THE SUBSCRIPTON CONTENT SHALL BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY DIRECT, INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR PUNITIVE DAMAGES ARISING OUT OF CUSTOMER ACCESS TO OR USE OF THE CONTENT. WITHOUT LIMITING THE FOREGOING, ALL CONTENT IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. HTCT DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF THE MATERIALS, THE RESULTS OF THE USE OF SUCH MATERIALS, THE SUITABILITY OF SUCH MATERIALS FOR ANY CUSTOMER NEEDS OR THE LIKELIHOOD THAT THEIR USE WILL MEET ANY CUSTOMER EXPECTATIONS, OR THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR CORRECTION. HTCT LIKEWISE DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS OR GUARANTEES THAT CUSTOMER WILL EARN ANY MONEY USING THE SUBSCRIPTION OR THE HTCT TECHNOLOGY OR SERVICES. CUSTOMER ACCEPTS ALL RESPONSIBILITY FOR EVALUATING CUSTOMER’S OWN EARNING POTENTIAL AS WELL AS EXECUTING CUSTOMER’S OWN BUSINESS AND SERVICES. HTCT CANNOT AND DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS OR GUARANTEES REGARDING CUSTOMER SUCCESS OR INCOME LEVEL. HTCT DOES NOT WARRANT THAT USE OF THE MATERIALS WILL BE UNINTERRUPTED OR ERROR FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE CONTENT, AND/OR THE MATERIALS ARE FREE FROM BUGS OR VIRUSES OR OTHER HARMFUL COMPONENTS. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR THE COST OF ALL NECESSARY REPAIRS OR CORRECTIONS. HTCT SHALL NOT BE RESPONSIBLE FOR ANY PERFORMANCE OR SERVICE PROBLEMS CAUSED BY ANY THIRD PARTY WEBSITE OR THIRD PARTY SERVICE PROVIDER. ANY SUCH PROBLEM SHALL BE GOVERNED SOLELY BY THE AGREEMENT BETWEEN CUSTOMER AND THAT PROVIDER.
VIII. LIMITATION OF LIABILITY.
- Exclusion of Consequential and Related Damages. IN NO EVENT WILL HTCT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS AND LOST SAVINGS, HOWEVER CAUSED, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, TORT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE, WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
- Applicability. THE LIMITATIONS AND EXCLUSIONS CONTAINED HEREIN WILL APPLY ONLY TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, AND NOTHING HEREIN PURPORTS TO LIMIT EITHER PARTY’S LIABILITY IN A MANNER THAT WOULD BE UNENFORCEABLE OR VOID AS AGAINST PUBLIC POLICY IN THE APPLICABLE JURISDICTION.
- Governing Law. This Agreement is governed by and construed in accordance with the laws of the Commonwealth of Virginia and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Any legal claims, proceedings or litigation arising out of or in connection with the Subscription Services will be brought solely in the federal courts of the Commonwealth of Virginia, and each Party hereto consents to the jurisdiction and venue of such courts in any suit, action or proceeding concerning this Agreement. The Parties agree that the Uniform Computer Information Transactions Act or any version thereof, adopted by any state, in any form, will not apply to this Agreement.
- Anti-Corruption and Anti-Bribery. Customer acknowledges that it is familiar with and understands the provisions of the U.S. Foreign Corrupt Practices Act of 1977, as amended (“the FCPA”) and the U.K. Bribery Act of 2010 (“UKBA”) and agrees not violate or knowingly let anyone violate the FCPA or UKBA. Customer agrees that no payment it makes will constitute a bribe, influence payment, kickback, rebate, or other payment that violates the FCPA, the UKBA, or any other applicable anti-corruption or anti-bribery laws.
- Entire Agreement. This Agreement constitutes the complete and entire agreement between HTCT and Customer with respect to the Subscription Services. It replaces and supersedes any prior agreements, oral or written, between HTCT and Customer concerning the subject matter hereof. No amendment to this Agreement will be effective unless it is in writing and signed by the authorized representatives of each Party.
- Force Majeure. With the exception of Customer’s obligation to make payments due and payable to HTCT, neither HTCT nor Customer will be considered to be in breach or default of this Agreement as a result of its delay or failure to perform its obligations herein when such delay or failure arises out of causes beyond the reasonable control of the Party whose performance has been affected.
- No Third-Party Beneficiaries. Nothing in this Agreement will benefit or create any right or cause of action in or on behalf of any person or entity other than Customer and HTCT.
- Waiver and Severability. The failure of a Party to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect.