CYNTEGRITY CLOUD SERVICES AGREEMENT
This Cloud Services Agreement (this “Agreement”) is dated as of the latest date following the signatures hereto (the “Agreement Date”), and is entered by and between Cyntegrity Germany GmbH a corporation with its principal offices at Muensterer str. 49, 65719 Hofheim, Germany and at Altenhöferallee 3, 60438 Frankfurt am Main, Germany (herein after referred to as “Cyntegrity”) and Customer, a company, which used EarlyBird System (herein after referred to as “Customer”). This Agreement sets forth the terms and conditions that govern orders placed by Customer for Services under this Agreement.
- AGREEMENT DEFINITIONS
- “Ancillary Program” means any software agent or tool owned or licensed by Cyntegrity that Cyntegrity makes available to Customer for download as part of the Cloud Services for purposes of facilitating Customer’s access to, operation of, and/or use with, the Services The term “Ancillary Program” does not include Separately Licensed Third Party Technology.
- The future prolongation of license(s) is decided at least 1 month before a year’s end. The prolongation demands a written notice by a CEO of Customer and the CEO of Cyntegrity
- “Cloud Services” means, collectively, the Cyntegrity Risk-based Monitoring (RBM) and Risk Management (RM) cloud services (e.g., Cyntegrity software as a service offerings and related Cyntegrity Programs) listed in Customer’s order and defined in the Service Specifications. The term “Cloud Services” does not include Professional Services.
- “Data Center Region” refers to the geographic region in which the Services Environment is physically located. The Data Center Region applicable to the Cloud Services is set forth in Customer’s order.
- “Cyntegrity Programs” refers to the software products owned or licensed by Cyntegrity to which Cyntegrity grants Customer access as part of the Cloud Services, including Program Documentation and any program updates provided as part of the Cloud Services. The term “Cyntegrity Programs” does not include Separately Licensed Third Party Technology.
- “Professional Services” means, collectively, the consulting and other professional Services, which Customer have ordered. Professional Services include any deliverables described in Customer’s order and delivered by Cyntegrity to Customer under the order. The term “Professional Services” does not include Cloud Services.
- “Program Documentation” refers to the program user manuals for the Cyntegrity Programs referenced within the Service Specifications for Cloud Services, as well as any help windows and readme files for such Cyntegrity Programs that are accessible from within the Services. The Program Documentation describes technical and functional aspects of the Cyntegrity Programs.
- “Separate Terms” refers to separate license terms that are specified in the Program Documentation, Service Specifications, readme or notice files and that apply to Separately Licensed Third Party Technology.
- “Separately Licensed Third Party Technology” refers to third party technology that is licensed under Separate Terms and not under the terms of this Agreement.
- “Services” means, collectively, both the Cloud Services and Professional Services that Customer have ordered.
- “Services Environment” refers to the combination of hardware and software components owned, licensed or managed by Cyntegrity to which Cyntegrity grants Customer access as part of the Cloud Services which Customer have ordered. As applicable and subject to the terms of this Agreement and Customer’s order, Cyntegrity Programs, Third Party Content, Customer’s Content and Customer’s Applications may be hosted in the Services Environment.
- “Service Specifications” means the descriptions provided by Cyntegrity, that are applicable to the Services under Customer’s order, including Program Documentation, Cyntegrity Cloud Hosting and Delivery Policies (e.g., support and security policies), and other descriptions referenced or incorporated in such descriptions.
- “Services Period” refers to the period of time for which Customer ordered Cloud Services as specified in Customer’s order.
- “Third Party Content” means all text, files, images, graphics, illustrations, information, data, audio, video, photographs and other content and material, in any format, that are obtained or derived from third party sources outside of Cyntegrity and made available to Customer through, within, or in conjunction with Customer’s use of the Cloud Services. Third Party Content does not include Separately Licensed Third Party Technology.
- “Representatives” means those employees, contractors and end users, as applicable, authorized by Customer to use the Cloud Services in accordance with this Agreement and Customer’s order.
- “Customer’s Applications” means all Key Risk Indicators or Performance Indicators developed by Cyntegrity exclusively for Customer or by Customer, including any source code for such programs, that Customer provide for Cyntegrity Cloud Services. Services under this Agreement, including Cyntegrity Programs, Key Risk Indicators, Performance Indicators, Cyntegrity intellectual property, and all derivative works thereof, do not fall within the meaning of the term “Customer’s Applications.”
- “Customer’s Content” means all root cause analysis, chat-messages, mitigation actions, other text, files, images, graphics, illustrations, information, data (including Personal Data) and other content and material (other than Customer’s Applications), in any format, provided by Customer that reside in, or run on or through, the Services Environment.
- “Risk-based Monitoring (RBM)” means an important part of a preventive clinical trial management approach, which aims to identify, assess, control, communicate, and review the risks associated with the clinical trial during its lifecycle in order to guarantee the protection of trial subjects’ rights, well-being, integrity, and safety and the assurance of quality of data and the trial credibility.
- “User Acceptance Test (UAT)” is one of the final project procedures that occurs before services are rolled out to a clinical trial.
- “Key Risk Indicator (KRI)” a program module within Cyntegrity Cloud Services, which aims to detect risks in clinical research.
2. TERM OF AGREEMENT
Unless this Agreement is terminated earlier as described below, Customer may place orders governed by this Agreement for a period of five years from the Agreement Date. This Agreement will continue to govern any Customer order for the duration of the Services Period of such order.
- RIGHTS GRANTED
3.1 For the duration of the Services Period and subject to Customer’s payment obligations, and except as otherwise set forth in this Agreement or Customer’s order, Customer have the non-exclusive, non-assignable, royalty free, worldwide limited right to access and use the Services that Customer ordered, including anything developed by Cyntegrity and delivered to Customer as part of the Services, solely for Customer’s internal business operations and subject to the terms of this Agreement and Customer’s order, including the Service Specifications. Customer may allow Representatives to use the Services for this purpose and Customer are responsible for Representatives’ compliance with this Agreement and the Customer’s order.
3.2 Customer do not acquire under this Agreement any right or license to use the Services, including the Cyntegrity Programs and Services Environment, unless it is agreed by Customer and Cyntegrity in excess of the scope and/or duration of the Services stated in Customer’s order. Upon the end of the Services ordered, Customer’s right to access and use the Services will terminate.
3.3 To enable Cyntegrity to provide Customer and Representatives with the Services, Customer grant Cyntegrity the right to use, process and transmit, in accordance with this Agreement and Customer’s order, Customer’s Content and Customer’s Applications for the duration of the Services Period plus any additional post-termination period during which Cyntegrity provides Customer with access to retrieve an export file of Customer’s Content and Customer’s Applications. Upon expiration of such post-termination period, Cyntegrity is obliged to handle Customer Content in accordance with requirements of Customer (i.e. to delete all the Customer Content upon confirmation of Customer).
3.4 Except as otherwise expressly set forth in Customer’s order for certain Cloud Services offerings (e.g., a private cloud hosted at Customer’s facility), Customer acknowledges that Cyntegrity has no delivery obligation for Cyntegrity Programs and will not ship copies of such programs to Customer as part of the Services.
3.5 The Services may contain or require the use of Separately Licensed Third Party Technology. Customer is responsible for complying with the Separate Terms specified by Cyntegrity (subject to provision of the relevant information by Cyntegrity to Customer) that govern Customer’s use of Separately Licensed Third Party Technology. Cyntegrity may provide certain notices to Customer in the Service Specifications, Program Documentation, readme or notice files in connection with such Separately Licensed Third Party Technology. The third party owner, author or provider of such Separately Licensed Third Party Technology retains all ownership and intellectual property rights in and to such Separately Licensed Third Party Technology.
3.6 As part of certain Cloud Services offerings, Cyntegrity may provide Customer with access to Third Party Content within the Services Environment. The type and scope of any Third Party Content is defined in the Service Specifications applicable and attached to Customer’s order. The third party owner, author or provider of such Third Party Content retains all ownership and intellectual property rights in and to that content, and Customer’s rights to use such Third Party Content are subject to, and governed by, the terms applicable to such content as specified by such third party owner, author or provider.
- OWNERSHIP AND RESTRICTIONS
4.1 Customer retains all ownership and intellectual property rights in and to Customer’s Content and Customer’s Applications. Cyntegrity or its licensors retain all ownership and intellectual property rights to the Services, including Cyntegrity Programs and Ancillary Programs, and derivative works thereof, and to anything developed or delivered by or on behalf of Cyntegrity under this Agreement.
4.2 Customer may not, or cause or permit others to:
- remove or modify any program markings or any notice of Cyntegrity’s or its licensors’ proprietary rights;
- make the programs or materials resulting from the Services (excluding Customer’s Content and Customer’s Applications) available in any manner to any third party for use in the third party’s business operations (unless such access is expressly permitted for the specific Services Customer has acquired);
- modify, remake the system, disassemble, decompile, or reverse engineer any part of the Services (), or access or use the Services in order to support, and/or assist a third party in building or supporting, products or Services competitive to Cyntegrity;
- disclose any benchmark or performance tests of the Services, including the Cyntegrity Programs, without Cyntegrity’s prior written consent;
- perform or disclose any of the following security testing of the Services Environment or associated infrastructure without Cyntegrity’s prior written consent: network discovery, port and service identification, vulnerability scanning, password cracking, remote access testing, or penetration testing; and
- license, sell, rent, lease, transfer, assign, distribute, , host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Services, Cyntegrity Programs, Ancillary Programs, Services Environments or materials available, to any third party, other than as expressly permitted under the terms of the applicable order.
4.3 The rights granted to Customer under this Agreement are also conditioned on the following:
- except as expressly provided herein or in Customer’s order, no part of the Services may be copied, , distributed, republished, downloaded, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; and
- Customer makes every reasonable effort to prevent unauthorized third parties from accessing the Services.
- SERVICE SPECIFICATIONS
5.1 The Services are subject to and governed by Service Specifications applicable to Customer’s order. Service Specifications may define provisioning and management processes applicable to the Services (such as capacity planning), types and quantities of system resources (such as storage allotments), functional and technical aspects of the Cyntegrity Programs, as well as any Services deliverables. Customer acknowledges that use of the Services in a manner not consistent with the Service Specifications may adversely affect Services performance and/or may result in additional fees. If the Services permit Customer to exceed the ordered quantity (e.g., soft limits on counts for Representatives, sessions, storage, etc.), then Customer is responsible for promptly purchasing additional quantity to account for Customer’s excess usage.
5.2 Cyntegrity may make changes or updates to the Services (such as infrastructure, security, technical configurations, application features, etc.) during the Services Period, including to reflect changes in technology, industry practices, patterns of system use, and availability of Third Party Content. The Service Specifications are subject to change at Cyntegrity’s discretion; however, Cyntegrity changes to the Service Specifications will not result in a material reduction in the level of performance or availability of the applicable Services provided to Customer for the duration of the Services Period.
5.3 Customer’s order will specify the Data Center Region in which Customer’s Services Environment will reside. As described in the Service Specifications and to the extent applicable to the Cloud Services that Customer has ordered, Cyntegrity will provide production, test, and backup environments in the Data Center Region stated in Customer’s order. Cyntegrity and its affiliates may perform certain aspects of Cloud Services, such as service administration and support, as well as other Services (including Professional Services and disaster recovery), from locations and/or through use of subcontractors, worldwide.
- USE OF THE SERVICES
6.1 Customer is responsible for identifying and authenticating all Representatives, for approving access by such Representatives to the Services, for controlling against unauthorized access by Representatives, and for maintaining the confidentiality of usernames, passwords and account information. By federating or otherwise associating Customer’s usernames, passwords and accounts with Cyntegrity, Customer accepts responsibility for the timely and proper termination of user records in Customer’s local (intranet) identity infrastructure or on Customer’s local computers. Cyntegrity is not responsible for any harm caused by Representatives, including individuals who were not authorized to have access to the Services but who were able to gain access because usernames, passwords or accounts were not terminated on a timely basis in Customer’s local identity management infrastructure or Customer’s local computers. Customer is responsible for all activities that occur under Customer’s usernames, passwords or accounts or as a result of Representatives’ access to the Services, and agrees to notify Cyntegrity immediately of any unauthorized use.
6.2 Customer agrees not to use or permit use of the Services, including by uploading, emailing, posting, publishing or otherwise transmitting any material, including Customer’s Content, Customer’s Applications and Third Party Content, for any purpose that may (a) menace or harass any person or cause damage or injury to any person or property, (b) involve the publication of any material that is false, defamatory, harassing or obscene, (c) violate privacy rights or promote bigotry, racism, hatred or harm, (d) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters; (e) constitute an infringement of intellectual property or other proprietary rights, or (f) otherwise violate applicable laws, ordinances or regulations. In addition to any other rights afforded to Cyntegrity under this Agreement, Cyntegrity reserves the right, but has no obligation, to take remedial action if any material violates the foregoing restrictions, including the removal or disablement of access to such material. Cyntegrity shall have no liability to Customer in the event that Cyntegrity takes such action. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of Customer’s Content and Customer’s Applications. Customer agrees to defend and indemnify Cyntegrity against any claim arising out of a violation of Customer’s obligations under this section.
6.3 Customer is required to accept all patches, bug fixes, updates, maintenance and service packs (collectively, “Patches”) necessary for the proper function and security of the Services, including for the Cyntegrity Programs, as such Patches are generally released by Cyntegrity as described in the Service Specifications. Except for emergency or security related maintenance activities, Cyntegrity will coordinate with Customer the scheduling of application of Patches, where possible, based on Cyntegrity’s next available standard maintenance window.
- DEMONSTRATIONAL CLOUD SERVICES
7.1 Cyntegrity may make available certain Cloud Services for demonstrational, non-production purposes. Cloud Services for demonstrational purposes must be ordered under a separate Agreement. Cloud Services acquired for demonstrational purposes are provided on an “as is” and “as available” basis. Cyntegrity does not provide technical or other support or offer any warranties for such Services.
7.2 Cyntegrity may make available “production pilots” for certain Cloud Services under this Agreement. Production pilots ordered by Customer are described in the Service Specifications applicable to Customer’s order, and are provided solely for Customer to evaluate and test Cloud Services for Customer’s internal business purposes. Customer may be required to order certain Professional Services as a prerequisite to an order for a production pilot.
- FEES AND TAXES
8.1 All fees payable to Cyntegrity are due within 30 days from the invoice date. If a relevant work order stipulates trial-specific or sponsor specific configuration and/or validation efforts than such fees are non refundable. Customer will pay any sales, value-added or other similar taxes imposed by applicable law that Cyntegrity must pay based on the Services Customer ordered, except for taxes based on Cyntegrity’s income. Also, Customer will reimburse Cyntegrity for reasonable expenses related to providing any Professional Services subject to the relevant expenses have been agreed in advance. Fees for Services listed in an order are exclusive of taxes and expenses, however all the taxes to be paid by Customer shall be directly indicated by Cyntegrity in the relevant order and approved by Customer before commencement of services.
8.2 Customer understands that Customer may receive multiple invoices for the Services Customer ordered.
8.3 Customer agrees and acknowledges that Customer has not relied on the future availability of any Services, programs or updates in entering into the payment obligations in Customer’s order; however, the preceding does not relieve Cyntegrity of its obligation during the Services Period to deliver Services that Customer have ordered per the terms of this Agreement.
- SERVICES PERIOD; END OF SERVICES
9.1 Services provided under this Agreement shall be provided for the Services Period defined in Customer’s order, unless earlier suspended or terminated in accordance with this Agreement or the Customer’s order.
9.2 Upon the end of the Services, Customer shall no longer have rights to access or use the Services, including the associated Cyntegrity Programs and Services Environments; however, at Customer’s request, and for a period of up to 60 days after the end of the applicable Services, Cyntegrity will make available to Customer Customer’s Content and Customer’s Applications as existing in the Services Environment on the date of termination. At the end of such 60 day period, and except as may be required by law, Cyntegrity will delete or otherwise render inaccessible any of Customer’s Content and Customer’s Applications that remain in the Services Environment.
9.3 Cyntegrity may temporarily suspend Customer’s password, account, and access to or use of the Services if Customer or Representatives violate any provision within the ‘Rights Granted’, ‘Ownership and Restrictions’, ‘Fees and Taxes’, ‘Use of the Services’, or ‘Export’ sections of this Agreement, or if in Cyntegrity’s reasonable judgment, the Services or any component thereof are about to suffer a significant threat to security or functionality. Cyntegrity will provide advance notice to Customer of any such suspension in Cyntegrity’s reasonable discretion based on the nature of the circumstances giving rise to the suspension. Cyntegrity will use reasonable efforts to re-establish the affected Services promptly after Cyntegrity determines, in its reasonable discretion, that the situation giving rise to the suspension has been cured; however, during any suspension period, Cyntegrity will make available to Customer Customer’s Content and Customer’s Applications as existing in the Services Environment on the date of suspension. Cyntegrity may terminate the Services under an order if any of the foregoing causes of suspension is not cured within 30 days after Cyntegrity’s initial notice thereof. Any suspension or termination by Cyntegrity under this paragraph shall not excuse Customer from Customer’s obligation to make payment(s) under this Agreement, however if the suspension or termination is a result of circumstances out of Customer control Cyntegrity shall return the amount of payment pro rata to the timeline of the Service Period unused by Customer or Cynegrity shall not invoice Customer for such a timeline (if it is unpaid).
9.4 If either of the parties breaches a material term of this Agreement and fails to correct the breach within 30 days of written specification of the breach, then the breaching party is in default and the non-breaching party may terminate the order under which the breach occurred. If Cyntegrity terminates the order as specified in the preceding sentence, Customer must pay within 30 days all amounts that due to be paid as of the date of termination, as well as all sums remaining unpaid for the Services ordered under this Agreement plus related taxes and expenses. Except for nonpayment of fees, the non-breaching party may agree in its sole discretion to extend the 30-day period for so long as the breaching party continues reasonable efforts to cure the breach. Customer agrees that if Customer is in default under this Agreement for a period more than 30 days, Customer may not use those Services ordered. If Customer terminates the order as specified in the preceding sentence, Cyntegrity must refund within 30 days all payments done for Services ordered under this Agreement but not performed prior to such termination. If such Services were not performed partly Cyntegrity shall refund the relevant payments on pro rata basis.
9.5 Provisions that survive termination or expiration of this Agreement are those relating to limitation of liability, infringement indemnity, payment and others, which by their nature are intended to survive.
9.6. Customer may terminate a Service order by giving written notification to Cyntegrity prior 30 days before the termination. In this event the relevant Services shall be paid on pro rata basis (based on time the relevant Services were actually used by Customer before termination).
10.1 By virtue of this Agreement, the parties may have access to information that is confidential to one another (“Confidential Information”). Both parties agree to disclose only information that is required for the performance of obligations under this Agreement. Confidential information shall be limited to the terms and pricing under this Agreement, Customer Content and Customer Applications residing in the Services Environment, and all information clearly identified as confidential at the time of disclosure.
10.2 A party’s Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party.
10.3 Both parties agree not to disclose the other party’s Confidential Information to any third party other than as set forth in the following sentence for a period of five years from the date of the disclosing party’s disclosure of the Confidential Information to the receiving party; however, Cyntegrity will hold Customer’s Confidential Information that resides within the Services Environment in confidence for as long as such information resides in the Services Environment. Both parties may disclose Confidential Information only to those Representatives, agents or subcontractors, who are required to protect it against unauthorized disclosure in a manner no less protective than required under this Agreement. Cyntegrity will protect the confidentiality of Customer’s Content or Customer’s Applications residing in the Services Environment in accordance with the Cyntegrity security practices defined as part of the Service Specifications applicable to Customer’s order. Nothing shall prevent either party from disclosing the terms or pricing under this Agreement or orders placed under this Agreement in any legal proceeding arising from or in connection with this Agreement or from disclosing the Confidential Information to a governmental entity as required by law.
- DATA PROTECTION
11.1 In performing the Services, Cyntegrity complies with the German Federal Data Protection Act.
11.2 The Service Specifications applicable to Customer’s order define the administrative, physical, technical and other safeguards applied to Customer’s Content residing in the Services Environment, and describe other aspects of system management applicable to the Services. Customer are responsible for any security vulnerabilities, and the consequences of such vulnerabilities, arising from Customer’s Content and Customer’s Applications, including any viruses, Trojan horses, worms or other programming routines contained in Customer’s Content or Customer’s Applications that could limit or harm the functionality of a computer or that could damage, intercept or expropriate data. Cyntegrity is responsible for any security vulnerabilities, and the consequences of such vulnerabilities, arising from Cynegrity’s content and software, including any viruses, Trojan horses, worms or other programming routines contained in thereof that could limit or harm the functionality of a computer or that could damage, intercept or expropriate data.
- WARRANTIES, DISCLAIMERS AND EXCLUSIVE REMEDIES
12.1 Cyntegrity warrants that it will perform (i) Cloud Services in all material respects as described in the Service Specifications, and (ii) Professional Services in a professional manner in accordance with the Service Specifications. If the Services provided to Customer were not performed as warranted, Customer must promptly provide written notice to Cyntegrity that describes the deficiency in the Services (including, as applicable, the service request number notifying Cyntegrity of the deficiency in the Services).
12.2 Customer agrees that the Cloud Services are an assessment tools only, and that the Cloud Services are not intended to provide diagnoses, practice guidelines, advice, or protocols for delivering medical care. Cyntegrity will not have any responsibility as a result of this agreement for decisions made or actions taken or not taken in a clinical trial.
12.3 CYNTEGRITY DOES NOT GUARANTEE THAT (A) THE SERVICES WILL BE PERFORMED ERROR FREE OR UNINTERRUPTED, OR THAT CYNTEGRITY WILL CORRECT ALL SERVICES ERRORS, (B) THE SERVICES WILL OPERATE IN COMBINATION WITH CUSTOMER’S CONTENT OR CUSTOMER’S APPLICATIONS, OR WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED BY CYNTEGRITY, AND (C) THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, SPECIFICATIONS OR EXPECTATIONS. Customer ACKNOWLEDGES THAT CYNTEGRITY DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. CYNTEGRITY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. CYNTEGRITY IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE SERVICES THAT ARISE FROM CUSTOMER’S CONTENT, CUSTOMER’S APPLICATIONS OR THIRD PARTY CONTENT. CYNTEGRITY DOES NOT MAKE ANY REPRESENTATION OR WARRANTY REGARDING THE RELIABILITY, ACCURACY, COMPLETENESS, CORRECTNESS, OR USEFULNESS OF THIRD PARTY CONTENT, AND DISCLAIMS ALL LIABILITIES ARISING FROM OR RELATED TO THIRD PARTY CONTENT.
12.4 FOR ANY BREACH OF THE SERVICES WARRANTY, CUSTOMER’S EXCLUSIVE REMEDY AND CYNTEGRITY’S ENTIRE LIABILITY SHALL BE THE CORRECTION OF THE DEFICIENT SERVICES THAT CAUSED THE BREACH OF WARRANTY, OR, IF CYNTEGRITY CANNOT SUBSTANTIALLY CORRECT THE DEFICIENCY IN A COMMERCIALLY REASONABLE MANNER, Customer MAY END THE DEFICIENT SERVICES AND CYNTEGRITY WILL REFUND TO Customer THE FEES FOR THE TERMINATED SERVICES THAT Customer PRE-PAID TO CYNTEGRITY FOR THE PERIOD FOLLOWING THE EFFECTIVE DATE OF TERMINATION.
12.5 TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING FOR SOFTWARE, HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.
- LIMITATION OF LIABILITY
NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THIS AGREEMENT),. CYNTEGRITY’S MAXIMUM LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR CUSTOMER’S ORDER, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO CYNTEGRITY FOR THE SERVICES UNDER THE ORDER THAT IS THE SUBJECT OF THE CLAIM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTGIVING RISE TO SUCH CLAIM LESS ANY REFUNDS OR CREDITS RECEIVED BY Customer FROM CYNTEGRITY UNDER SUCH ORDER.
- SERVICES TOOLS AND ANCILLARY PROGRAMS
Cyntegrity may use tools, scripts, software, and utilities (collectively, the “Tools”) to monitor and administer the Services and to help resolve Customer’s Cyntegrity service requests. The Tools will not collect or store any of Customer’s Content or Customer’s Applications residing in the Services Environment, except as necessary to provide the Services or troubleshoot service requests or other problems in the Services. Information collected by the Tools (excluding Customer’s Content and Customer’s Applications) may also be used to assist in managing Cyntegrity’s product and service portfolio, to help Cyntegrity address deficiencies in its product and service offerings, and for license and Services management.
- SERVICE ANALYSES
Cyntegrity may (i) compile statistical and other information related to the performance, operation and use of the Services, and (ii) use data from the Services Environment in aggregated form for security and operations management, to create statistical analyses, and for research and development purposes (clauses i and ii are collectively referred to as “Service Analyses”). Cyntegrity may make Service Analyses publicly available; however, Service Analyses will not incorporate Customer’s Content or Confidential Information in a form that could serve to identify Customer or any individual, and Service Analyses do not constitute Personal Data. Cyntegrity retains all intellectual property rights in Service Analyses.
16. FORCE MAJEURE
Neither of both parties shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; pandemic; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancelation of any export, import or other license); or other event outside the reasonable control of the obligated party. Both parties will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 30 days, either of us may cancel unperformed Services and affected orders upon written notice. This Section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or Customer’s obligation to pay for the Services.
- GOVERNING LAW AND JURISDICTION
This Agreement is governed by the substantive and procedural laws of Russian Federation. Customer and Cyntegrity agree to submit to the exclusive jurisdiction of, Arbitration court of Moscow in any dispute arising out of or relating to this Agreement.
18.1 Any notice required under this Agreement shall be provided to the other party in writing. If Customer have a dispute with Cyntegrity or if Customer wish to provide a notice, or if Customer becomes subject to insolvency or other similar legal proceedings, Customer will promptly send written notice to:
Cyntegrity Germany GmbH
Muensterer Str. 49
65719 Hofheim am Taunus
Tel: +49 (0) 6192-470-113-50
Fax: +49 (0) 6192-470-113-59
18.2 If services terminated by Customer, Customer sends a termination notice 30 days in advance. If services are terminated in connection with material breach, then it is made in accordance with the law (also a termination notice with references on a subject of breach).
18.3 Cyntegrity may give notices by electronic mail to Customer’s e-mail address indicated herein or by written communication sent by first class mail or pre-paid post to Customer’s address.
Customer may not assign this Agreement or give or transfer the Services (including the Cyntegrity Programs) or an interest in them to another individual or entity. If Customer grants a security interest in any portion of the Services, the secured party has no right to use or transfer the Services or any deliverables. The foregoing shall not be construed to limit the rights Customer may otherwise have with respect to Separately Licensed Third Party Technology licensed under open source or similar license terms.
21.1 Cyntegrity is an independent contractor and both parties agree that no partnership, joint venture, or agency relationship exists between them. Each party will be responsible for paying its own employees, including employment related taxes and insurance. Customer shall defend and indemnify Cyntegrity against liability arising under any applicable laws, ordinances or regulations related to Customer’s termination or modification of the employment of any of Customer’s Representatives in connection with any Services under this Agreement. Customer understands that Cyntegrity’s business partners, including any third party firms retained by Customer to provide consulting services or applications that interact with the Cloud Services, are independent of Cyntegrity and are not Cyntegrity’s agents. Cyntegrity is not liable for nor bound by any acts of any such business partner, unless the business partner is providing Services as a Cyntegrity subcontractor on an engagement ordered under this Agreement and, if so, then only to the same extent as Cyntegrity would be responsible for Cyntegrity resources under this Agreement.
21.2 If any term of this Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with another term consistent with the purpose and intent of this Agreement.
21.3 Except for actions for nonpayment or breach of Cyntegrity’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than three years after the cause of action has accrued.
21.4 Customer agrees that it is its employees’ responsibility to ensure safe use of Cyntegrity Programs and Services in such applications.
21.5 Customer shall obtain at Customer’s sole expense any rights and consents from third parties necessary for Customer’s Content, Customer’s Applications, and Third Party Content, as well as other vendor’s products provided by Customer that Customer use with the Services, including such rights and consents as necessary for Cyntegrity to perform the Services under this Agreement.
21.6 Customer agrees to provide Cyntegrity with all information, access and full good faith cooperation reasonably necessary to enable Cyntegrity to provide the Services and Customer will perform the actions identified in Customer’s order as Customer’s responsibilities.
21.7 Customer remains solely responsible for Customer’s regulatory compliance in connection with Customer’s use of the Services. Customer is responsible for making Cyntegrity aware of any technical requirements that result from Customer’s regulatory obligations prior to entering into an order governed by this Agreement. Cyntegrity will cooperate with Customer’s efforts to determine whether use of the standard Cyntegrity Services offering is consistent with those requirements. Additional fees may apply to any additional work performed by Cyntegrity or changes to the Services.
21.8 The purchase of Cloud Services, Professional Services, or other service offerings, programs or products may be separate offers and separate from any other order. Customer understands that Customer may purchase Cloud Services, Professional Services, or other service offerings, programs or products independently of any other . Customer’s obligation to pay under any order is not contingent on performance of any other service offerings or delivery of programs or products if the other services are not connected with the unsatisfactory services received.
- ENTIRE AGREEMENT
22.1 Customer agrees that this Agreement and the information which is incorporated into this Agreement by written reference (including reference to information contained in a URL or referenced policy (if it is included in the relevant Service order), together with the applicable order, is the complete agreement for the Services ordered by Customer and supersedes all prior or contemporaneous agreements or representations, written or oral, regarding such Services.
22.2 It is expressly agreed that the terms of this Agreement and any Cyntegrity order shall supersede the terms in any purchase order, procurement internet portal, or other similar non-Cyntegrity document and no terms included in any such purchase order, portal, or other non-Cyntegrity document shall apply to the Services ordered. In the event of any inconsistencies between the terms of an order and the Agreement, the order shall take precedence.