Version no. 1 Dated 4 June 2021
“Agreement” means the Order Form and these Terms of Service and any other schedules attached.“Customer Data” means all data (in any form) that is provided to Akeero or uploaded or hosted on any part of any Product or Services“Documentation” means the description and instructions of the relevant Product and/or Services made available by Akeero“Fees” means the fees as described in the Order Form.“Intellectual Property Rights” means all patents, copyrights, design rights, trademarks, service marks, know-how, database rights and other rights in the nature of intellectual property rights (whether registered or unregistered) and all applications for the same, anywhere in the world.“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.“Order Form” means the order form, agreed to by the Parties in connection with this Agreement.
“Product” means the Akeero cyber security design platform that assists Users with identification of potential security weaknesses in their cloud native products and services and identifies controls to mitigate these weaknesses as described in the Documentation.
“Services” means the services as described in the Order Form.
“Subscription Term” means the period beginning on the Commencement Date (as defined in the Order Form) and continuing until the end of the Service Term (unless otherwise stated in the Order Form this shall be for 24 months from the Commencement Date), unless terminated earlier or renewed or extended as provided in this Agreement.
“Third Party Solution” means any product, service, content or item of a third party.
“Tools” means (i) materials used in providing the Product and Services which constitutes pre-existing proprietary material owned by Akeero (or some other third party, as applicable); and/or (ii) material which has been newly developed by Akeero in the course of performing the Services for the Customer that is of a routine generic or non-customer specific nature.
“Updates” means a maintenance update, patch or bug fix which does not constitute an upgrade.
“Users” means individuals who are authorized by Customer to access and use the Product and Service on behalf of Customer, and who have been supplied user identifications and login credentials by Customer. Users may include employees, consultants, contractors and agents of Customer.
- THE PRODUCT AND SERVICES
- Provision of the Product and Service. Subject to the terms and conditions of this Agreement and the applicable Order Form, and upon Customer’s payment of the applicable Fees, Akeero (i) grants Customer, a non-exclusive, non-transferable, license, to grant Users located anywhere in the world the right to access and use the Product (including the Documentation) in support of the Customer’s internal business operations and (ii) Akeero shall provide the Services in accordance with the Order Form. Customer agrees that its subscription to the Product or Services is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by Akeero regarding future functionality or features.
- Customer Responsibilities. Customer shall (i) be responsible for its Users’ compliance with this Agreement, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Product or Services, and notify Akeero promptly of any such unauthorized access or use, (iii) be responsible for Customer’s and Users’ use of any Customer Data including without limitation any use of Customer Data in violation of applicable laws and regulations, (iv) use the Product only in accordance with the terms of this Agreement and applicable laws and government regulations and (v) be responsible for obtaining the appropriate licenses for any Third Party Solution used in connection with the Product or Services, ensuring that such licenses cover Akeero’s use of the Third Party Solution for the performance of the Product and Services. If individual consents are required to collect, use, transfer or otherwise process any Customer Data, including without limitation Customer Data subject to data privacy laws and regulations, Customer shall be solely responsible for obtaining all such consents. Customer shall not (a) make the Product or Services available to anyone other than Users, (b) sell, resell, rent or lease the Products or Services, (c) interfere with or disrupt the integrity or performance of the Product or Services or any content contained therein, or (d) attempt to gain unauthorized access to the Product or Services or the underlying systems or networks.
- Demarcation of Responsibilities. Akeero is responsible for the security of its Product and Services. The Customer’s environment is the Customer’s responsibility. Customer must review all code deployed into, and all changes made to, the Customer’s environment, even where the code or changes are suggested by the Product or Services. This is because the suggestions provided may not be appropriate for the Customer’s particular set of circumstances, the Customer environment, local laws applicable to the Customer or the Customer’s requirements as a regulated entity, where applicable.
- Third-Party Solutions. When Customer accesses any Third Party Solution in connection with the use of the Product or Services, the Customer agrees and acknowledges that (a) Akeero is not responsible for interruptions of services or to the Product caused by the Third Party Solution provider and (b) the Customer is solely responsible for licensing the use of Third Party Solutions accessed in connection with the Product and Services.
- Additional Services. To the extent that Customer requires any additional products or services, such as [customizations, program modifications or additions, new modules (which add new functionality),] new releases of new products (which have different names and different functionality from the Product and Services) or professional services, Customer may order such additional products and/or services pursuant to a separate Order Form mutually agreed to by the Parties. Additional services may be provided by Akeero upon the mutual agreement of the Parties for additional fees.
- FEES AND PAYMENT
- Fees. The fees payable for the Products and Services are as set forth in the Order Form. Except as otherwise specified herein or in an Order Form, (i) fees are quoted and payable in Euro (ii) and (ii) payment obligations are non-cancellable and fees paid are non-refundable.
- Expenses. Customer shall reimburse Akeero for all reasonable expenses incurred by Akeero with the prior approval of Customer in the performance of implementation or requested professional services. Records of reimbursable expenses including statements and receipts shall be provided to Customer along with the invoice to which they pertain.
- Invoicing and Payment. Fees will be invoiced in advance in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, fees are due thirty (30) days from the invoice date. All fees shall be paid by electronic funds transfer (EFT).
- Suspension of the Service. If any charge owing by Customer is thirty (30) days or more overdue, Akeero may, without limiting its other rights and remedies, suspend the Services until such amounts are paid in full. Notwithstanding the foregoing, Akeero shall not be able to suspend the Service for overdue invoices that are the result of a good faith dispute between the Parties.
- Taxes. Customer agrees to pay all applicable taxes levied by any tax authority on the Products or Service or on Customer’s use thereof, which shall be separately invoiced, excluding taxes based on the net income of Akeero. Customer shall provide to Akeero any certificate of exemption or similar document required to exempt any transaction under this Agreement from sales tax or other tax liability.
- PROPRIETARY RIGHTS
- Reservation of Rights. As between the Parties, the Product and Services and all Intellectual Property Rights therein, are and will remain the sole property of Akeero and no rights are granted to Customer with respect to the Product and Services, or the Intellectual Property Rights therein, other than the limited rights and licenses specified in this Agreement. Customer will not access or use the Product and Services, or the Intellectual Property Rights therein, except as expressly permitted by this Agreement.
- Restrictions. Customer shall not at any time, directly or indirectly, and shall not permit any User to (i) permit any third party to access or use the Product and Services except as permitted herein or in an Order Form, (ii) copy, modify or create derivative works based on the Product, Services or the Documentation, (iii) rent, lease, lend, sell, license, sublicense, publish, frame, mirror or otherwise distribute any part or content of the Product, Services or Documentation, (iv) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Product and Services, in whole or in part, or (v) access the Product and Services in order to (a) build a competing product or service, or (b) copy any content, features, functions or graphics of the Product and Services.
- License to Feedback. Akeero shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Product and Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the operation of the Product and Services.
- Customer Data. As between the Parties, Customer owns all right, title and interest in and to all Customer Data; provided that Akeero will have the right to use the Customer Data to perform its obligations under this Agreement.
- Suspension. Notwithstanding anything to the contrary in this Agreement, Akeero may temporarily suspend Customer’s and/or any User’s access to any portion or all of the Products and Services if: (i) Akeero reasonably determines that: (A) Customer’s or any User’s use of the Products and Services disrupts or poses a security risk to Akeero or to any other customer of Akeero; (B) Customer, or any User, is using the Product and Services in breach of this Agreement or in violation of applicable law; (C) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (D) Akeero’s provision of the Product and Services to Customer is or becomes prohibited by applicable law; (ii) any third party has suspended or terminated Akeero’s access to or use of any third-party services or products required to enable Customer to access and use the Product and Services; or (iii) in accordance with Section 3.4 (any such suspension described in subclause (i), (ii), or (iii), a “Suspension”). Akeero shall use commercially reasonable efforts to provide written notice of any Suspension to Customer and to provide updates regarding resumption of access to the Product and Services following any Suspension. Akeero shall use commercially reasonable efforts to resume providing access to the Product and Services as soon as reasonably possible after the event giving rise to the Suspension is cured. Akeero will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Suspension.
- CONFIDENTIALITY AND DATA PROTECTION.
- Confidential Information. As used herein “Confidential Information” shall mean all confidential or proprietary information disclosed orally or in writing by one Party to the other that is identified as confidential or whose confidential nature is reasonably apparent. Confidential Information of Customer shall include without limitation Customer Data; Confidential Information of Akeero shall include without limitation all information relating to the Product and Services; and Confidential Information of each Party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such Party. Confidential Information shall not include information which: (a) is or becomes a part of the public domain through no fault of the receiving Party; (b) was in the receiving Party’s lawful possession prior to the disclosure; (c) is lawfully disclosed to the receiving Party by a third party without restriction on disclosure or any breach of confidence; (d) is independently developed by the receiving Party; or (e) is required to be disclosed by law.
- Protection of Confidential Information. Each Party agrees to (i) hold the other’s Confidential Information in confidence, (ii) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care), and (iii) not use or disclose such Confidential Information other than in connection with the performance of its obligations hereunder or as otherwise authorized by this Agreement. Notwithstanding the foregoing, either Party may disclose any of the other Party’s Confidential Information to its employees or consultants that have a need to know such Confidential Information in connection with such Party’s performance under this Agreement and that have agreed to be bound by confidentiality obligations similar to those in this Section.
- Compelled Disclosure. The receiving Party may disclose the Confidential Information of the disclosing Party if it is compelled by law to do so, provided the receiving Party gives the disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the disclosing Party’s cost, if the disclosing Party wishes to contest the disclosure. If the receiving Party is compelled by law to disclose the disclosing Party’s Confidential Information as part of a civil proceeding to which the disclosing Party is a party, the disclosing Party will reimburse the receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
- Obligations on Termination. Upon expiration or termination of this Agreement, each Party will: (a) immediately cease all use of the other Party’s Confidential Information (b) cease use of the Product and Services immediately; and (c) within [ten calendar days] after such expiration or termination, confirm in writing to the other Party that it has permanently erased from computer memory, destroyed or returned to the other Party the other Party’s Confidential Information, as well as any copies thereof on any media or in any form. Notwithstanding the foregoing, Akeero may retain any data as required by applicable laws, regulations, court orders, subpoenas or other legal process. In addition, any failure of Akeero to return or destroy electronic copies of Customer Data that are automatically generated through data backup and/or archiving systems shall not be deemed to violate the provisions of this Section, provided that Akeero shall not use such back-ups or archived copies for any purpose and such copies shall be subject to all confidentiality obligations set forth herein.
- WARRANTIES, REMEDIES AND DISCLAIMERS
- Akeero Warranties. Akeero warrants that the Product and Services shall be materially in line with the description set out in the Order Form. Akeero further represents and warrants that it has taken commercially reasonable steps to prevent the introduction of any Malicious Code or any other internal components, devices or mechanisms designed to disrupt, disable, harm, or otherwise impair in any material respect the normal and authorized operation of the Product and Services. In the event of any breach of the foregoing warranties, Akeero will use commercially reasonable efforts to promptly repair the Product and Services so as to be conforming. In the event that Akeero is not able to repair the Products and Services, Customer’s sole remedy shall be the termination of this Agreement and the receipt of a refund of any amounts pre-paid for the Services for any period of time following such termination and a pro-rated refund for any Product for any period of time following such termination.
- Mutual Warranties. Each Party represents and warrants that (i) it has the legal power to enter into this Agreement, and (ii) it will not knowingly transmit to the other Party any Malicious Code (as security threats are constantly evolving, no security policy or practice is 100% secure from all risks).
- Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING. WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. AKEERO DOES NOT WARRANT THAT THE SERVICE WILL SATISFY CUSTOMER’S REQUIREMENTS OR (WITHOUT PREJUDICE TO THE LIMITED WARRANTY ABOVE) THAT IT IS WITHOUT DEFECT OR ERROR OR THAT CUSTOMER’S ACCESS THERETO WILL BE UNINTERRUPTED.
- Akeero Indemnification. Akeero agrees to defend Customer against any third party claims, demands, suits, or proceedings (each, a “Claim“) made or brought against Customer alleging that Customer’s use of the Product and Services infringes or misappropriates the intellectual property rights of such third party and to indemnify Customer from any damages finally awarded by a court of competent jurisdiction against Customer or amounts agreed to in settlement in connection with any such Claim. Akeero’s obligations under this paragraph shall only apply to the extent that: (a) Customer promptly notifies Akeero in writing of the Claim; (b) Akeero has control of the defense and all related settlement negotiations relating to the Claim; and (c) Customer provides Akeero with the assistance, information and authority reasonably necessary to perform the above. In no event will Akeero have any obligation or liability under this paragraph for any Claim or action under any legal theory if the Claim or action is caused by, or results from: (i) Customer’s combination, operation or use of the Product and Services with software or other materials not supplied by Akeero, (ii) any alteration or modification of the Product and Services by Customer, (iii) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, or (iv) the actions or omissions of any person or entity other than Akeero.
- Remedy for Infringement. Should Customer’s right to use the Products and Services pursuant to this Agreement be subject to a Claim of infringement or if Akeero reasonably believes such a Claim of infringement may arise, Akeero may, at its option and in its sole discretion (i) procure for Customer the right to continue to access and use the Product and Services; (ii) modify the Product and Services to render them non-infringing but substantially functionally equivalent to the Product and Services prior to such modification; or (iii) if the alternatives described in subclauses (i) and (ii) of this paragraph are not commercially practicable, then Akeero may terminate this Agreement and as applicable refund to Customer any amounts pre-paid by Customer for the Services for the unused portion of the Service Term and the prorated amount paid by Customer for Products for period of time following termination.
- Customer Indemnification. Customer agrees to defend, indemnify and hold harmless Akeero against any Claims made or brought against Akeero: (i) by a third party alleging that the Customer Data or any other information provided by Customer to Akeero for use in connection with the Product and Services, infringes or violates the intellectual property rights or privacy/data protection rights of a third party and/or (ii) relating to a breach of the Customer Responsibilities as set out in Section 2.2, and to indemnify Akeero from any damages finally awarded by a court of competent jurisdiction against Akeero or amounts agreed to in settlement in connection with any such Claims. Akeero shall: (a) promptly notify Customer in writing of the Claim; (b) ensure Customer has control of the defense and all related settlement negotiations relating to the Claim, provided however the settlement of any Claim shall not be made without advance written permission of Akeero, which shall not be unreasonably withheld; and (c) provide Customer with the assistance, information and authority reasonably necessary to perform the above. Akeero shall promptly provide Customer with written notice of any Claim which Akeero believes falls within the scope of this Section. Akeero’s failure to provide written notice to Customer shall not affect Customer’s indemnification obligations hereunder except to the extent that Customer is materially prejudiced thereby. At any time after Customer becomes aware of any such Claim, Customer may procure for Akeero the right to continue to use the information for use in connection with the Product and/or Service at its own expense. Akeero shall not be responsible for any delay or disruption to the Customer’s use of the Product and Services, including any damages stemming therefrom, caused by a Claim falling under this Section.
- LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES, LOSS OF DATA OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR ITS LIABILITY ARISING OUT OF AKEERO’s (I) FRAUD, OR WILLFUL MISCONDUCT; OR (II) NEGLIGENCE LEADING TO DEATH OR PERSONAL INJURY, IN NO EVENT SHALL AKEERO’S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, EXCEED THE FEES PAID BY CUSTOMER FOR THE PRODUCT AND SERVICES DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT. CUSTOMER ACKNOWLEDGES THAT THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO AKEERO HEREUNDER REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT AKEERO WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE LIMITATIONS ON ITS LIABILITY CONTAINED IN THIS SECTION. THESE LIABILITY LIMITATIONS APPLY EVEN IF CONTRACTUAL REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
- Trial Service; Pre-Released Services.
- Trial Service. We may offer, from time to time, part or all of our Services on a free, no-obligation trial version (“Trial Service”). The term of the Trial Service shall be as communicated to you in an Order Form, unless terminated earlier by either Customer or us, for any reason or for no reason. We reserve the right to modify, cancel and/or limit this Trial Service at any time and without liability or explanation to you.
- Pre-Released Services. Note that we may offer, from time to time, certain Services in an Alpha or Beta version (the “Pre-Released Services”) and we use best endeavors to identify such Pre-Released Services as such. Pre-Released Services are Services that are still under development, and as such they may be inoperable or incomplete, and may contain bugs, suffer disruptions and/or not operate as intended and designated, more than usual.
- Governing Terms of Trial Service and Pre-Released Services. The Trial Service and Pre-Released Services are governed by these Terms, provided that notwithstanding anything in these Terms or elsewhere to the contrary, in respect of Trial Service and Pre-Released Services (i) such services are licensed hereunder on as “As-Is”, “With All Faults” “As Available” basis, with no warranties, express or implied, of any kind; (ii) the indemnity undertaking by us set forth in Section 7.1 herein shall not apply; and (iii) IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF Akeero, ITS AFFILIATES OR ITS THIRD PARTY SERVICE PROVIDERS, UNDER, OR OTHERWISE IN CONNECTION WITH, THESE TERMS (INCLUDING THE SITES, THE SERVICE AND THE THIRD PARTY SERVICES), EXCEED €100. We make no promises that any Trial Service and/or Pre-Released Services will be made available to you and/or generally available.
- TERM AND TERMINATION
- Term of Agreement. Unless otherwise terminated as provided herein, this Agreement commences on the Effective Date and continues until the termination of this Agreement.
- Subscription Term. The Subscription Term shall be as set out in the Order Form and where not specified shall be 24 months. The Subscription Term shall auto renew for successive periods of twelve (12) months (“Renewal Period”) unless terminated by either party by giving at least three (3) months notice in writing prior to the commencement of the Renewal Period. Fees on renewal shall be Akeero’s standard fees as at the date of commencement of the Renewal Period unless otherwise set out in the Order Form.
- Termination for Cause. A Party may terminate this Agreement for cause (i) upon 30 days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
- Refund or Payment upon Termination. Upon termination for cause by Customer, Akeero shall pay any amounts pre-paid by Customer for the Products and Services for the unused portion of the Subscription Term. Upon any termination for cause by Akeero, Customer shall pay any unpaid fees covering the remainder of the Services Term after the effective date of termination. In no event shall any termination relieve Customer of its obligation to pay any fees payable to Akeero for any period prior to the effective date of termination.
- Surviving Provisions. Sections 1, 3, 4, 5, 6, 7, 8, 9.4, 10 and 11 shall survive any termination or expiration of this Agreement.
- GENERAL PROVISIONS.
- Export Compliance. Each Party shall comply with the export laws and regulations of the European Union and United States and other applicable jurisdictions in providing and using the Product and Services. Without limiting the foregoing, (i) each of Akeero and Customer represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) Customer shall not permit Users to access or use Product and Services in violation of any U.S. export embargo, prohibition or restriction.
- Force Majeure. Neither Party shall be in default if a failure to perform any obligation hereunder is caused solely by supervening conditions beyond that Party’s reasonable control, including acts of God, civil commotion, strikes, labor disputes and governmental demands or requirements. When a Party’s delay or non-performance continues for a period of thirty (30) days or more, the other Party may terminate this Agreement without penalty. Any prepaid amounts for Services shall be refunded on a prorated basis.
- Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
- No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
- Notices. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and delivered to the addresses set forth on the Order Form and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after overnight delivery, (iii) the first business day after sending by email.
- Waiver and Cumulative Remedies. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
- Assignment. Customer may not assign the rights granted under this Agreement, in whole or in part and whether by operation of contract, law or otherwise, without the other Party’s prior written consent. Such consent shall not be unreasonably withheld or delayed. For purposes of this provision, a change of control shall constitute an assignment. All terms and conditions of the Agreement shall be binding upon any assignee hereunder; assignee’s acceptance of these terms shall be evidenced by its performance hereunder.
- Order of Precedence. Where there is a conflict between these terms and conditions and the Order Form, the Order Form shall apply.
- Governing Law; Venue. This Agreement, and any disputes arising out of or related hereto, shall be governed exclusively by the laws of Ireland and the Parties hereby agree to submit any dispute arising therefrom to the exclusive jurisdiction of the Irish Courts.