SEC1 TERMS AND CONDITIONS

THESE TERMS AND CONDITIONS ARE BINDING AS OF THE EARLIEST OF THE DATE THAT CUSTOMER ACCEPTS THE TERMS AND CONDITIONS HEREIN, THE DATE SET FORTH ON AN ORDER, OR THE DATE ON WHICH CUSTOMER DOWNLOADS, INSTALLS, ACTIVATES, OR USES THE PRODUCT OR SERVICE.

These Sec1 Terms and Conditions are a master agreement that cover all Sec1 products and services, but provisions regarding specific products or services apply only to the extent you have purchased, accessed, or used such products or services.

1. Definitions

“Affiliate” means any entity that a party directly or indirectly controls (e.g., subsidiary) or is controlled by (e.g., parent), or with which it is under common control (e.g., sibling).

“Agreement” means these Sec1 Terms and Conditions together with each Order.

“API” means an application program (or programming) interface.

“Sec1 Competitor” means a person or entity in the business of developing, distributing, or commercializing Internet security products or services substantially similar to or competitive with Sec1’s products or services.

“Sec1 Data” shall mean the data generated by the Sec1 Offerings, including but not limited to, correlative and/or contextual data, and/or detections. For the avoidance of doubt, Sec1 Data does not include Customer Data.

“Sec1 Tool” means any Sec1 proprietary software-as-a-service, software, hardware, or other tool that Sec1 uses in performing Professional Services, which may be specified in the applicable SOW. Sec1 Tools may include Sec1’s products.

“Customer” means, as the context requires, in addition to the entity identified above, any Customer Affiliate that places an Order under these Sec1 Terms and Conditions, uses or accesses any Offering hereunder, or benefits from the Customer’s use of an Offering.

“Customer Contractor” means any individual or entity (other than a Sec1 Competitor) that: (i) has access or use of a Product under this Agreement solely on behalf of and for Customer’s Internal Use, (ii) has an agreement to provide Customer (or its Affiliates) services, and (iii) is subject to confidentiality obligations covering Sec1’s Confidential Information.

“Customer Data” means the data provided by Customer to Sec1 or collected by Sec1 from Customer’s systems in connection with the Offerings.

“Documentation” means Sec1’s end-user technical documentation included in the applicable Offering.

“Error” means a reproducible failure of a Product to perform in substantial conformity with its applicable Documentation.

“Internal Use” means access or use solely for Customer’s and, subject to the Section entitled Affiliates, Orders and Payment; Affiliates and the Section entitled Access and Use Rights, its Affiliates’, own internal information security purposes. Internal Use is limited to access and use by your and your Affiliates’ employees and Customer Contractors (except as set forth in the Section entitled Customer Contractors), in either event, solely on your behalf and for your benefit.

“Offerings” means, collectively, any Products, Product-Related Services, or Professional Services.

“Order” means any purchase order or other ordering document (including any SOW) accepted by Sec1 or a reseller that identifies the following ordered by Customer: Offering, Offering quantity based on Sec1’s applicable license metrics, price, and Subscription/Order Term.

“Product” means any of Sec1’s software or other products ordered by Customer as set forth in the relevant Order, including but not limited to SCA (Software Composition Analysis), SAST (Static Application Security Testing), DAST (Dynamic Application Security Testing), Vulnerability Notification Service, WordPress Scanner and Vulnerability Database, the available accompanying API’s, the Sec1 Data, any Documentation and any Updates thereto that may be made available to Customer from time to time by Sec1.

“Product-Related Services” means, collectively, (i) technical support services for certain Products provided by Sec1, (ii) training, and (iii) any other Sec1 services provided or sold with Products. Product-Related Services do not include Professional Services.

“Professional Services” means any professional services performed by Sec1 for Customer pursuant to an SOW or other Order. Professional Services may include without limitation security assessments, penetration testing, and other cybersecurity-related consulting services.

“Services” means, collectively, any Product-Related Services and any Professional Services.

“Statement of Work” or “SOW” means a mutually-agreed executed written document describing the Professional Services to be performed by Sec1 for Customer, deliverables, fees, and expenses related thereto.

“Subscription/Order Term” means the period of time set forth in the applicable Order during which: (i) Customer is authorized by Sec1 to access and use the Product or Product-Related Service, or (ii) Professional Services may be performed.

“Updates” means any correction, update, upgrade, patch, or other modification or addition made by Sec1 to any Product and provided to Customer by Sec1 from time to time on an as-available basis.

2. Affiliates, Orders and Payment

1. Affiliates. Any Affiliate purchasing hereunder, or using or accessing any Offering hereunder, or benefitting from the Customer’s use of an Offering, will be bound by and comply with all terms and conditions of this Agreement. The Customer signing these Sec1 Terms and Conditions will remain responsible for Customer’s Affiliates’ acts and omissions unless Customer’s Affiliate has entered into its own Terms and Conditions with Sec1.
2. Orders. Only those transaction-specific terms stating the Offerings ordered, quantity, price, payment terms, Subscription/Order Term, and billing/provisioning contact information (and for the avoidance of doubt, specifically excluding any pre-printed terms on a Customer or reseller purchase order) will have any force or effect unless a particular Order is executed by an authorized signer of Sec1 and returned to Customer (or the applicable reseller). If any such Order is so executed and delivered, then only those specific terms on the face of such Order that expressly identify those portions of this Agreement that are to be superseded will prevail over any conflicting terms herein but only with respect to those Offerings ordered on such Order. Orders are non-cancellable. Any Order through a reseller is subject to, and Sec1’s obligations and liabilities to Customer are governed by, this Agreement.
3. Payment and Taxes. Customer will pay the fees for Offerings to a reseller or Sec1 as set forth in the applicable Order. Unless otherwise expressly set forth on the Order, Customer will pay the fees and amounts stated on each Order within 30 days after receipt of the applicable invoice. Except as otherwise expressly provided in this Agreement, all fees and other amounts are non-refundable. Fees are exclusive of any applicable sales, use, value-added, withholding, and other taxes, however designated. Customer shall pay all such taxes levied or imposed by reason of Customer’s purchase of the Offerings and the transactions hereunder, except for taxes based on Sec1’s income or with respect to Sec1’s employment of its employees.

3. Access & Use Rights

1. Evaluation. If Sec1 approves Customer’s evaluation use of a Sec1 product (“Evaluation Product”), the terms herein applicable to Products also apply to evaluation access and use of such Evaluation Product, except for the following different or additional terms: (i) the duration of the evaluation is as mutually agreed upon by you and Sec1, provided that either Sec1 or you can terminate the evaluation at any time upon written (including email) notice to the other party; (ii) the Evaluation Product is provided “AS-IS” without warranty of any kind, and Sec1 disclaims all warranties, support obligations, and other liabilities and obligations for the Evaluation Product; and (iii) Customer’s access and use is limited to Internal Use by Customer employees only.
2. Access & Use Rights. Subject to the terms and conditions of this Agreement (including Sec1’s receipt of applicable fees), Sec1 grants Customer, under Sec1’s intellectual property rights in and to the applicable Product, a non-exclusive, non-transferable (except as expressly provided in the Section entitled Assignment), non-sublicensable license to access and use the Products in accordance with any applicable Documentation solely for Customer’s Internal Use during the applicable Subscription/Order Term. Customer’s access and use is limited to the quantity in the applicable Order. Furthermore, the following additional terms and conditions apply to specific Products (or components thereof):
   1. Products with Software Components. If Customer purchases a subscription to a Product with a downloadable object-code component (“Software Component”), Customer may, during the Subscription/Order Term install and run multiple copies of the Software Components solely for Customer’s and your Affiliates’ Internal Use up to the maximum quantity in the applicable Order.
   2. Sec1 Tools. If Sec1 provides Sec1 Tools to you pursuant to performing Professional Services, the license set forth in the Section entitled Access & Use Rights applies to such Sec1 Tools as used solely for your Internal Use during the period of time set forth in the applicable Order, or if none is specified, for the period authorized by Sec1. Not all Professional Services engagements will involve the use of Sec1 Tools.
3. Restrictions. The access and use rights set forth in the Section entitled Access & Use Rights do not include any rights to, and you will not, with respect to any Offering (or any portion thereof):
   1. employ or authorize a Sec1 Competitor to use or view the Offering or Documentation, or to provide management, hosting, or support for an Offering;
   2. alter, publicly display, translate, create derivative works of or otherwise modify an Offering;
   3. sublicense, distribute or otherwise transfer an Offering to any third party (except as expressly provided in the Section entitled Assignment);
   4. allow third parties to access or use an Offering (except for Customer Contractors as expressly permitted herein);
   5. create public Internet “links” to an Offering or “frame” or “mirror” any Offering content on any other server or wireless or Internet-based device;
   6. reverse engineer, decompile, disassemble or otherwise attempt to derive the source code (if any) for an Offering (except to the extent that such prohibition is expressly precluded by applicable law), circumvent its functions, or attempt to gain unauthorized access to an Offering or its related systems or networks;
   7. use an Offering to circumvent the security of another party’s network/information, develop malware, unauthorized surreptitious surveillance, data modification, data exfiltration, data ransom or data destruction;
   8. remove or alter any notice of proprietary right appearing on an Offering;
   9. conduct any stress tests, competitive benchmarking or analysis on, or publish any performance data of, an Offering (provided, that this does not prevent Customer from comparing the Products to other products for Customer’s Internal Use);
   10. use any feature of Sec1 APIs for any purpose other than in the performance of, and in accordance with, this Agreement; or
   11. cause, encourage or assist any third party to do any of the foregoing.
4. Installation and User Accounts. Sec1 is not responsible for installing Products unless you purchase installation services from Sec1. For those Products requiring user accounts, only the single individual user assigned to a user account may access or use the Product. You are liable and responsible for all actions and omissions occurring under your and your Customer Contractor’s user accounts for Offerings. You shall notify Sec1 if you learn of any unauthorized access or use of your user accounts or passwords for an Offering.
5. Ownership & Feedback. Products, Product-Related Services and the Sec1 Tools are made available for use or licensed, not sold. Sec1 owns and retains all right, title and interest (including all intellectual property rights) in and to the Products, Product-Related Services and the Sec1 Tools. Any feedback or suggestions that Customer provides to Sec1 regarding its Offerings and Sec1 Tools (e.g., bug fixes and features requests) is non-confidential and may be used by Sec1 for any purpose without acknowledgement or compensation; provided, Customer will not be identified publicly as the source of the feedback or suggestion.

4. Customer Contractors

1. Authorization. Customer authorizes Sec1 to give Customer Contractors the rights and privileges to the Offerings necessary to enable and provide for Customer’s use and receipt of the Customer Contractor Services. If at any time Customer revokes this authorization, to the extent the Offerings provide for Customer to limit the Customer Contractor’s access and use of the Offerings, then Customer is responsible for taking the actions necessary to revoke such access and use. In the event Customer requires Sec1 assistance with such revocation or limitation, Customer must contact Sec1 Support with written notice of such revocation or limitation at support@sec1.com and Sec1 will disable the Customer Contractor’s access to Customer’s Offerings within a reasonable period of time following receipt of such notice but in any event within 72 hours of receipt of such notice.
2. Disclaimer. Customer Contractors are subject to the terms and conditions in the Agreement while they are using the Offerings on behalf of Customer and Customer remains responsible for their acts and omissions during such time. Any breach by a Customer Contractor of this Agreement is a breach by Customer. Sec1 may make available Customer Contractor Services to Customer, for example, through an online directory, catalog, store, or marketplace. Customer Contractor Services are not required for use of the Offerings. Offerings may contain features, including API’s, designed to interface with or provide data to Customer Contractor Services. Sec1 is not responsible or liable for any loss, costs or damages arising out of Customer Contractor’s actions or inactions in any manner, including but not limited to, for any disclosure, transfer, modification or deletion of Customer Data. Whether or not a Customer Contractor is designated by Sec1 as, or otherwise claims to be “certified,” “authorized,” or similarly labeled, Sec1 does not: (i) control, monitor, maintain or provide support for, Customer Contractor Services, (ii) disclaims all warranties of any kind, indemnities, obligations, and other liabilities in connection with the Customer Contractor Services, and any Customer Contractor interface or integration with the Offerings, and (iii) cannot guarantee the continued availability of Customer Contractor Services and related features. If Customer Contractor Services and related features are no longer available for any reason, Sec1 is not obligated to provide any refund, credit, or other compensation for, or related to, the Offerings.
3. Restrictions on Customer Contractors. Customer shall not give or allow Customer Contractors access to, or use of, intelligence reports provided by, or made accessible in, the Products. For the avoidance of doubt, nothing herein prevents Customer from using intelligence API’s in Customer Contractor Services for Customer’s Internal Use.

5. Professional Services

1. Fees. Professional Services will commence on a mutually agreed upon date. Estimates provided for Professional Services performed on a time-and-material basis are estimates only and not a guaranteed time of completion. Professional Services performed on a fixed fee basis are limited to the scope of services stated in the applicable Order.
2. Ownership of Deliverables. Professional Services do not constitute “works for hire,” “works made in the course of duty,” or similar terms under laws where the transfer of intellectual property occurs on the performance of services to a payor. The only deliverable arising from the Professional Services is a report consisting primarily of Sec1’s findings, recommendations, and security information. You own the copy of the report (including without limitation, all your Confidential Information therein) delivered to you (“Deliverable”), subject to Sec1’s ownership of the Sec1 Materials. You agree that relative to you, Sec1 exclusively owns any and all software (including object and source code), flow charts, algorithms, documentation, security information, report templates, know-how, inventions, techniques, models, Sec1 trademarks, ideas and any and all other works and materials developed by Sec1 in connection with performing the Professional Services (including without limitation all intellectual property rights therein and thereto) (collectively, the “Sec1 Materials”) and that title shall remain with Sec1. For the avoidance of doubt, the Sec1 Materials do not include any Customer Confidential Information or other Customer provided materials or data. Upon payment in full of the amounts due hereunder for the applicable Professional Services and to the extent the Sec1 Materials are incorporated into the Deliverable(s), you shall have a perpetual, non-transferable (except as expressly provided in the Section entitled Assignment), non-exclusive license to use the Sec1 Materials solely as a part of the Deliverable(s) for your Internal Use.

6. Data Security and Privacy

1. Sec1 Systems. “Sec1 Systems” means those computer systems hosting the Sec1 platform and services.
2. Customer Data. “Customer Data” means the data generated by the Customer’s systems and collected by: (i) the Products, and/or (ii) the Sec1 Tools, and in either case, sent to the Sec1 Systems. Customer Data is considered Customer’s Confidential Information (defined in Section 7 Confidentiality) and subject to the exclusions, exceptions and obligations set forth therein and in this Section 6 Data Security and Privacy.
3. Processing Personal Data
   1. Provisioning/Use of Offerings. Personal Data may be collected and used during the provisioning and use of the Offerings to deliver, support and improve the Offerings, administer the Agreement and further the business relationship between you and Sec1, comply with law, act in accordance with your written instructions, or otherwise in accordance with this Agreement. You authorize Sec1 to collect, use, store and transfer the Personal Data that you provide to Sec1 as contemplated in this Agreement.
   2. Suspicious/Unknown File Analysis. While using certain Sec1 Offerings Customer may have the option to upload (by submission, configuration, and/or, in the case of Services, by Sec1 personnel retrieval) files and other information related to the files for security analysis and response or, when submitting crash reports, to make the product more reliable and/or improve Sec1’s products and services or enhance cybersecurity. These potentially suspicious or unknown files may be transmitted and analyzed to determine functionality and their potential to cause instability or damage your systems. In some instances, these files could contain Personal Data for which you are responsible.
4. Compliance with Privacy and Information Security Requirements
   1. Compliance with Laws. Sec1 shall comply with all Privacy and Security Laws applicable to it as a provider of the Offerings. Sec1’s privacy notice may be found at https://sec1.io/sec1-privacy-policy. To the extent necessary to comply with Privacy and Security Laws, including but not limited to when Customer is a controller of Personal Data processed by Sec1, the Data Protection Addendum set forth [Insert link or reference] shall apply to Sec1’s processing of such Customer Personal Data.
   2. Safeguards. Sec1 shall maintain appropriate technical and organizational safeguards commensurate with the sensitivity of the Customer Data and Personal Data processed by it on Customer’s behalf, which are designed to protect the security, confidentiality, and integrity of such Customer Data and Personal Data and protect such Customer Data and Personal Data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access (“Information Security Controls for Sec1 Systems”).
5. Customer Obligations. Customer, along with its Affiliates, represents and warrants that:
   1. it owns or has a right of use from a third party, and controls, directly or indirectly, all of the software, hardware and computer systems (collectively, “Systems”) where the Products and/or Sec1 Tools will be installed or that will be the subject of, or investigated during, the Offerings,
   2. to the extent required under any federal, state, or local U.S. or non-US laws it has authorized Sec1 to access the Systems and process and transmit data through the Offerings and Sec1 Tools in accordance with this Agreement and as necessary to provide and perform the Offerings,
   3. it has a lawful basis in having Sec1 investigate the Systems, process the Customer Data and the Personal Data;
   4. that it is and will at all relevant times remain duly and effectively authorized to instruct Sec1 to carry out the Offerings, and
   5. it has made all necessary disclosures, obtained all necessary consents and government authorizations required under applicable law to permit the processing and international transfer of Customer Data and Customer Personal Data from each Customer and Customer Affiliate, to Sec1.

7. Confidentiality

1. Definitions. In connection with this Agreement, each party (“Recipient”) may receive Confidential Information of the other party (“Discloser”) or third parties to whom Discloser has a duty of confidentiality. “Confidential Information” means non-public information in any form that is in the Recipient’s possession regardless of the method of acquisition that the Discloser designates as confidential to Recipient or should be reasonably known by the Recipient to be Confidential Information due to the nature of the information disclosed and/or the circumstances surrounding the disclosure. Confidential Information shall not include information that is: (i) in or becomes part of the public domain (other than by disclosure by Recipient in violation of this Agreement); (ii) previously known to Recipient without an obligation of confidentiality and demonstrable by the Recipient; (iii) independently developed by Recipient without use of Discloser’s Confidential Information; or (iv) rightfully obtained by Recipient from third parties without an obligation of confidentiality.
2. Restrictions on Use. Except as allowed in Section 7.3 (Exceptions), Recipient shall hold Discloser’s Confidential Information in strict confidence and shall not disclose any such Confidential Information to any third party, other than to its employees, and contractors, including without limitation, counsel, accountants, and financial advisors (collectively, “Representatives”), its Affiliates and their Representatives, subject to the other terms of this Agreement, and in each case who need to know such information and who are bound by restrictions regarding disclosure and use of such information comparable to and no less restrictive than those set forth herein. Recipient shall not use Discloser’s Confidential Information for any purpose other than as set forth in this Agreement. Recipient shall take the same degree of care that it uses to protect its own confidential information of a similar nature and importance (but in no event less than reasonable care) to protect the confidentiality and avoid the unauthorized use, disclosure, publication, or dissemination of the Discloser’s Confidential Information. Within 72 hours of Recipient becoming aware of the unauthorized use, disclosure, publication, or dissemination of the Discloser’s Confidential Information while in Recipient’s control, Recipient shall provide Discloser with notice thereof.
3. Exceptions. Recipient may disclose Discloser’s Confidential Information: (i) to the extent required by applicable law or regulation; (ii) pursuant to a subpoena or order of a court or regulatory, self-regulatory, or legislative body of competent jurisdiction; (iii) in connection with any regulatory report, audit, or inquiry; or (iv) where requested by a regulator with jurisdiction over Recipient. In the event of such a requirement or request, Recipient shall, to the extent legally permitted: (a) give Discloser prompt written notice of such requirement or request prior to such disclosure; and (b) at Discloser’s cost, a reasonable opportunity to review and comment upon the disclosure and request confidential treatment or a protective order pertaining thereto prior to Recipient making such disclosure.
4. Destruction. Upon Discloser’s written request, Recipient shall use commercially reasonable efforts to destroy the Confidential Information and any copies or extracts thereof. However, Recipient, its Affiliates and their Representatives may retain any Confidential Information that: (i) they are required to keep for compliance purposes under a document retention policy or as required by applicable law, professional standards, a court, or regulatory agency; or (ii) have been created electronically pursuant to automatic or ordinary course archiving, back-up, security, or disaster recovery systems or procedures; provided, however, that any such retained information shall remain subject to this Agreement. Upon Discloser’s request, Recipient will provide Discloser with written confirmation of destruction in compliance with this provision.
5. Equitable Relief. Each party acknowledges that a breach of this Section 7 (Confidentiality) shall cause the other party irreparable injury and damage. Therefore, each party agrees that those breaches may be stopped through injunctive proceedings in addition to any other rights and remedies which may be available to the injured party at law or in equity without the posting of a bond.

8. Warranties & Disclaimer

1. Services Warranty. Sec1 warrants to you that it will perform all Services in a professional and workmanlike manner consistent with generally accepted industry standards. You must notify Sec1 of any warranty claim for Services during the period the Services are being performed or within 30 days after the conclusion of the Services. Your sole and exclusive remedy and the entire liability of Sec1 for its breach of this warranty will be for Sec1, at its option and expense, to (a) use commercially reasonable efforts to re-perform the non-conforming Services, or (b) refund the portion of the fees paid attributable to the non-conforming Services.
2. Exclusions. The express warranties do not apply if the applicable Product or Service: (i) has been modified, except by Sec1, (ii) has not been installed, used, or maintained in accordance with this Agreement or Documentation, or (iii) is non-conforming due to a failure to use an applicable Update.
3. No Guarantee. CUSTOMER ACKNOWLEDGES, UNDERSTANDS, AND AGREES THAT SEC1 DOES NOT GUARANTEE OR WARRANT THAT IT WILL FIND, LOCATE, OR DISCOVER ALL OF CUSTOMER’S OR ITS AFFILIATES’ SYSTEM THREATS, VULNERABILITIES, MALWARE, AND MALICIOUS SOFTWARE, AND CUSTOMER AND ITS AFFILIATES WILL NOT HOLD SEC1 RESPONSIBLE THEREFOR.
4. Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS SECTION 8, SEC1 AND ITS AFFILIATES DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, SEC1 AND ITS AFFILIATES AND SUPPLIERS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT WITH RESPECT TO THE OFFERINGS AND SEC1 TOOLS. THERE IS NO WARRANTY THAT THE OFFERINGS OR SEC1 TOOLS WILL BE ERROR FREE, OR THAT THEY WILL OPERATE WITHOUT INTERRUPTION OR WILL FULFILL ANY OF CUSTOMER’S PARTICULAR PURPOSES OR NEEDS. THE OFFERINGS AND SEC1 TOOLS ARE NOT FAULT-TOLERANT AND ARE NOT DESIGNED OR INTENDED FOR USE IN ANY HAZARDOUS ENVIRONMENT REQUIRING FAIL-SAFE PERFORMANCE OR OPERATION. NEITHER THE OFFERINGS NOR SEC1 TOOLS ARE FOR USE IN THE OPERATION OF AIRCRAFT NAVIGATION, NUCLEAR FACILITIES, COMMUNICATION SYSTEMS, WEAPONS SYSTEMS, DIRECT OR INDIRECT LIFE-SUPPORT SYSTEMS, AIR TRAFFIC CONTROL, OR ANY APPLICATION OR INSTALLATION WHERE FAILURE COULD RESULT IN DEATH, SEVERE PHYSICAL INJURY, OR PROPERTY DAMAGE. Customer agrees that it is Customer’s responsibility to ensure safe use of an Offering and the Sec1 Tools in such applications and installations. SEC1 DOES NOT WARRANT ANY THIRD PARTY PRODUCTS OR SERVICES.

9. Indemnification

1. Sec1’s Obligation. Sec1 shall at its cost and expense: (i) defend and/or settle any claim brought against Customer by an unaffiliated third party alleging that an Offering infringes or violates that third party’s intellectual property rights, and (ii) pay and indemnify any settlement of such claim or any damages awarded to such third party by a court of competent jurisdiction as a result of such claim; provided, that Customer: (a) gives Sec1 prompt written notice of such claim; (b) permits Sec1 to solely control and direct the defense or settlement of such claim (however, Sec1 will not settle any claim in a manner that requires Customer to admit liability without Customer’s prior written consent); and (c) provides Sec1 all reasonable assistance in connection with the defense or settlement of such claim, at Sec1’s cost and expense. In addition, Customer may, at Customer’s own expense, participate in defense of any claim.
2. Remedies. If a claim covered under this Section occurs or in Sec1’s opinion is reasonably likely to occur, Sec1 may at its expense and sole discretion (and if Customer’s access and use of an Offering is enjoined, Sec1 will, at its expense): (i) procure the right to allow Customer to continue using the applicable Offering; (ii) modify or replace the applicable Offering to become non-infringing; or (iii) if neither (i) nor (ii) is commercially practicable, terminate Customer’s license or access to the affected portion of applicable Offering and refund a portion of the pre-paid, unused fees paid by Customer corresponding to the unused period of the Subscription/Order Term.
3. Exclusions. Sec1 shall have no obligations under this Section if the claim is based upon or arises out of: (i) any modification to the applicable Offering not made by Sec1; (ii) any combination or use of the applicable Offering with or in any third party software, hardware, process, firmware, or data, to the extent that such claim is based on such combination or use; (iii) Customer’s continued use of the allegedly infringing Offering after being notified of the infringement claim or after being provided a modified version of the Offering by Sec1 at no additional cost that is intended to address such alleged infringement; (iv) Customer’s failure to use the Offering in accordance with the applicable Documentation; and/or (v) Customer’s use of the Offering outside the scope of the rights granted under this Agreement.
4. Exclusive Remedy. THE REMEDIES SPECIFIED IN THIS SECTION CONSTITUTE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, AND SEC1’S ENTIRE LIABILITY, WITH RESPECT TO ANY INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.

10. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR LIABILITY FOR ANY AMOUNTS PAID OR PAYABLE TO THIRD PARTIES UNDER SECTION 9 (INDEMNIFICATION), CUSTOMER’S PAYMENT OBLIGATIONS, AND/OR ANY INFRINGEMENT OR MISAPPROPRIATION BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY IN CONNECTION WITH THIS AGREEMENT OR THE SUBJECT MATTER HEREOF (UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STATUTE, TORT OR OTHERWISE) FOR ANY LOST PROFITS, REVENUE, OR SAVINGS, LOST BUSINESS OPPORTUNITIES, LOST DATA, OR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES OR SUCH DAMAGES OR LOSSES WERE REASONABLY FORESEEABLE; OR (B) AN AMOUNT THAT EXCEEDS THE TOTAL FEES PAID OR PAYABLE TO SEC1 FOR THE RELEVANT OFFERING DURING THAT OFFERING’S SUBSCRIPTION/ORDER TERM. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SPECIFIED IN THIS AGREEMENT. MULTIPLE CLAIMS SHALL NOT EXPAND THE LIMITATIONS SPECIFIED IN THIS SECTION 10.

11. Compliance with Laws

Each party agrees to comply with all U.S. federal, state, local and non-U.S. laws directly applicable to such party in the performance of this Agreement, including but not limited to, applicable export and import, anti-corruption and employment laws. Customer acknowledges and agrees the Offerings shall not be used, transferred, or otherwise exported or re-exported to countries that the United States and/or the European Union maintains an embargo or comprehensive sanctions (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity subject to individual prohibitions (collectively, “Designated Nationals”), without first obtaining all required authorizations from the U.S. government and any other applicable government. Customer represents and warrants that Customer is not located in, or is under the control of, or a national or resident of, an Embargoed Country or Designated National. Sec1 represents and warrants that Sec1 is not located in, or is under the control of, or a national or resident of, an Embargoed Country or Designated National.

12. Term and Termination

1. Term of Agreement. This Agreement commences on the date Customer first accepts it and continues until all Subscription Terms hereunder have expired or have been terminated.
2. Subscription Term. The Subscription Term shall be as specified in the applicable Order. Except as otherwise specified in an Order, subscriptions will automatically renew for additional periods equal to the expiring Subscription Term, unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant Subscription Term.
3. Termination for Cause. Either party may terminate this Agreement upon 30 days’ written notice of a material breach by the other party, unless the breach is cured within the 30-day notice period.
4. Effect of Termination. Upon termination of this Agreement for any reason:
   1. all Customer’s access and use rights granted in this Agreement will terminate;
   2. Customer must promptly cease all use of Offerings and de-install all Software Components installed on Customer’s systems;
   3. Customer Data will be deleted in accordance with the data retention period purchased by Customer and Section 7.4 Confidentiality; Destruction).
5. Survival. Sections 1, 3.3, 7, 10, 12, 13, and 14 and all liabilities that accrue prior to termination shall survive expiration or termination of this Agreement for any reason.

13. General Provisions

1. Entire Agreement. This Agreement constitutes the entire agreement between Customer and Sec1 concerning the subject matter of this Agreement and it supersedes all prior and simultaneous proposals, agreements, understandings, or other communications between the parties, oral or written, regarding such subject matter. It is expressly agreed that the terms of this Agreement shall supersede any terms in any procurement Internet portal or other similar non-Sec1 document and no such terms included in any such portal or other non-Sec1 document shall apply to the Offerings ordered. Any Order through a reseller is subject to, and Sec1’s obligations and liabilities to Customer are governed by, this Agreement. Sec1 is not obligated under any reseller’s agreement with you unless an officer of Sec1 executes the agreement. This Agreement shall not be construed for or against any party to this Agreement because that party or that party’s legal representative drafted any of its provisions.
2. Assignment. Neither party may assign this Agreement without the prior written consent of the other party, except to an Affiliate in connection with a corporate reorganization or in connection with a merger, acquisition, or sale of all or substantially all of its business and/or assets. Any assignment in violation of this Section shall be void. Subject to the foregoing, all rights and obligations of the parties under this Agreement shall be binding upon and inure to the benefit of and be enforceable by and against the successors and permitted assigns.
3. Governing Law; Venue. This Agreement, and the rights and duties of the parties arising from this Agreement, shall be governed by, construed, and enforced in accordance with the laws of Pune, India, excluding its conflicts-of-law principles. The sole and exclusive jurisdiction and venue for actions arising under this Agreement shall be state and federal courts in Pune, India, and the parties agree to service of process in accordance with the rules of such courts. The Uniform Computer Information Transactions Act and the United Nations Convention on the International Sale of Goods shall not apply. Notwithstanding the foregoing, each party reserves the right to file a suit or action in any court of competent jurisdiction as such party deems necessary to protect its intellectual property rights and, in Sec1’s case, to recoup any payments due.
4. Permission to List You as a Customer. Unless you direct otherwise by sending an email to us at legal@sec1.com, which direction may be given at any time, you agree that Sec1 may display your company name and logo (in accordance with any trademark guidelines you provide) as a Sec1 customer in a manner that does not suggest your use or endorsement of any specific Sec1 product or service.
5. Independent Contractors; No Third Party Rights. The parties are independent contractors. This Agreement shall not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. No provision in this Agreement is intended or shall create any rights with respect to the subject matter of this Agreement in any third party.
6. Waiver, Severability & Amendments. The failure of either party to enforce any provision of this Agreement shall not constitute a waiver of any other provision or any subsequent breach. If any provision of this Agreement is held to be illegal, invalid, or unenforceable, the provision will be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remaining provisions of this Agreement will remain in full force and effect. This Agreement may only be amended, or any term or condition set forth herein waived, by written consent of both parties.
7. Force Majeure. Neither party shall be liable for, nor shall either party be considered in breach of this Agreement due to, any failure to perform its obligations under this Agreement (other than its payment obligations) as a result of a cause beyond its control, including but not limited to, act of God or a public enemy, act of any military, civil or regulatory authority, change in any law or regulation, fire, flood, earthquake, storm or other like event, disruption or outage of communications (including an upstream server block and Internet or other networked environment disruption or outage), power or other utility, labor problem, or any other cause, whether similar or dissimilar to any of the foregoing, which could not have been prevented with reasonable care.
8. Notices. All legal notices will be given in writing to the addresses in the Order and will be effective: (i) when personally delivered, (ii) on the reported delivery date if sent by a recognized international or overnight courier, or (iii) five business days after being sent by registered or certified mail (or ten days for international mail). For clarity, Orders, POs, confirmations, invoices, and other documents relating to order processing and payment are not legal notices and may be delivered electronically in accordance with each party’s standard ordering procedures.

14. Dispute Resolution

1. Informal Resolution. The parties agree that they will attempt to resolve any dispute, claim or controversy arising out of or relating to this Agreement through good faith negotiations before resorting to litigation or other formal dispute resolution procedures.
2. Arbitration. If the parties are unable to resolve any dispute through informal negotiations within 30 days, either party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to this Agreement (including its formation, performance and breach), the parties’ relationship with each other and/or Customer’s use of the Offerings shall be finally settled by binding arbitration administered under its applicable rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
3. Arbitration Procedures. The arbitration will be conducted in the English language in Pune, India. The arbitration shall be conducted by a single arbitrator, unless the amount in controversy exceeds $250,000 USD, in which case the arbitration shall be conducted by a panel of three arbitrators. The arbitrator(s) shall be appointed in accordance with Arbitration body’s rules. The arbitrator(s) shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
4. Exceptions to Arbitration. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Offerings, or intellectual property infringement (for example, trademark, trade secret, copyright or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.

By using Sec1’s Offerings, you acknowledge that you have read this Agreement, understand it, and agree to be bound by its terms and conditions. If you do not agree to these terms, you must not use Sec1’s Offerings.