1.1 “Documentation” means Aembit-provided user documentation, in all forms, relating to the Services (e.g., user manuals, on-line help files).
1.2 “Services” means Aembit’s website at aembit.io and Aembit’s web-based and downloadable workload identity and access management services.
2.1 Use of the Services. Subject to the terms and conditions of this Agreement, Aembit grants to Customer a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 10.2) right during the term of this Agreement to: (a) install and use one object code copy of any downloadable software associated with the Services; and (b) use the Services, solely in connection with Customer’s internal business operations.
2.2 Use of the Documentation. Subject to the terms and conditions of this Agreement, Aembit grants to Customer a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 10.2) license, without right of sublicense, during the term of this Agreement to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with use of the Services in accordance with this Agreement.
2.3 Technical Support Services. For so long as Customer is current with its payment of any applicable fees in accordance with Section 3, Aembit will use reasonable efforts to provide Customer with technical support services relating to the Services by email from 9am-5pm Eastern, Monday through Friday, excluding holidays.
2.4 Use Restrictions. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Customer will not, and will not permit or authorize third parties to: (a) rent, lease, or otherwise permit third parties to use the Services or Documentation; (b) copy, modify, de-compile, reverse engineer, or otherwise attempt to derive the source code, algorithms, or architecture underlying the Services; (c) use the Services to provide services to third parties (e.g., as a service bureau); (d) use the Services for any benchmarking activity or in connection with the development of any competitive product; nor (e) circumvent or disable any security or other technological features or measures of the Services.
2.5 Compliance with Laws. Customer will use the Services and Documentation in compliance with all applicable laws and regulations.
2.6 Protection against Unauthorized Use. Customer will use reasonable efforts to prevent any unauthorized use of the Services and Documentation and immediately notify Aembit in writing of any unauthorized use that comes to Customer’s attention. If there is unauthorized use by anyone who obtained access to the Services directly or indirectly through Customer, Customer will take all steps reasonably necessary to terminate the unauthorized use. Customer will cooperate and assist with any actions taken by Aembit to prevent or terminate unauthorized use of the Services or Documentation.
3.1 Fees and Payment Terms. Certain features of the Services may require Customer to pay fees. Aembit will make pricing information available on its pricing page. Customer will pay Aembit the fees and any other amounts owing under this Agreement, plus any applicable sales, use, excise, or other taxes, as specified on Aembit’s pricing page. All amounts payable under this Agreement are in U.S. dollars and are non-refundable unless otherwise specifically provided for in this Agreement.
3.2 Taxes. Other than net income taxes imposed on Aembit, Customer will bear all taxes, duties, and other governmental charges resulting from this Agreement.
4.1 Reservation of Rights. Aembit owns all right, title and interest in and to the Services and Documentation, including all modifications, improvements, upgrades, derivative works, and feedback related thereto and all intellectual property rights therein and thereto. Aembit grants to Customer a limited right to use the Services and Documentation under this Agreement. Customer will not have any rights to the Services or Documentation except as expressly granted in this Agreement. Aembit reserves to itself all rights to the Services and Documentation not expressly granted to Customer in accordance with this Agreement.
4.2 Aggregated Data. As between the parties, Aembit solely owns the aggregated and de-identified statistical data derived from the operation of the Services, including, without limitation, the performance results for the Services (the “Aggregated Data”). Nothing in this Agreement will be construed as prohibiting Aembit from utilizing the Aggregated Data for purposes of operating Aembit’s business. Aembit will not disclose to any third party any Aggregated Data that reveals the identity, whether directly or indirectly, of any individual or Customer.
4.3 Feedback. If Customer provides any feedback to Aembit concerning the functionality and performance of the Services (including identifying potential errors and improvements), Customer hereby assigns to Aembit all right, title, and interest in and to the feedback, and Aembit is free to use the feedback without payment or restriction.
5.1 Term. This Agreement will commence upon acceptance of this Agreement by Customer and will continue until terminated in accordance with the terms of this Agreement.
5.2 Termination for Convenience. Customer may terminate its account and this Agreement at any time by deleting its account and discontinuing use of the Services.
5.3 Termination for Material Breach. Either party may terminate this Agreement if the other party does not cure its material breach of this Agreement within 30 days of receiving written notice of the material breach from the non-breaching party. Termination in accordance with this Section 5.2 will take effect when the breaching party receives written notice of termination from the non-breaching party, which notice must not be delivered until the breaching party has failed to cure its material breach during the 30-day cure period. If Customer fails to timely pay any fees, Aembit may, without limitation to any of its other rights or remedies, suspend performance of the Services until it receives all amounts due.
5.4 Post-Termination Obligations. If this Agreement is terminated for any reason, Customer will pay to Aembit any fees or other amounts that have accrued prior to the effective date of the termination, any and all liabilities accrued prior to the effective date of the termination will survive, and Customer will provide Aembit with a written certification signed by an authorized Customer representative certifying that all use of the Services and Documentation by Customer has been discontinued.
6.1 Mutual Warranties. Each party represents and warrants to the other that: this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; and no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement.
6.2 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 6, AEMBIT MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. AEMBIT EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. AEMBIT DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SERVICES. AEMBIT DOES NOT WARRANT THAT THE SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE SERVICES WILL BE SECURE OR UNINTERRUPTED. AEMBIT DOES NOT WARRANT THAT ANY INFORMATION PROVIDED THROUGH THE Services IS ACCURATE OR COMPLETE OR THAT ANY INFORMATION PROVIDED THROUGH THE SERVICES WILL ALWAYS BE AVAILABLE. AEMBIT EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF CUSTOMER’S USE OF THE SERVICES.
7.1 Defense of Infringement Claims. Aembit will, at its expense, either defend Customer from or settle any claim, proceeding, or suit (“Claim”) brought by a third party against Customer alleging that Customer’s use of the Services infringes or misappropriates any patent, copyright, trade secret, trademark, or other intellectual property right during the term of this Agreement if: Customer gives Aembit prompt written notice of the Claim; Customer grants Aembit full and complete control over the defense and settlement of the Claim; Customer provides assistance in connection with the defense and settlement of the Claim as Aembit may reasonably request; and Customer complies with any settlement or court order made in connection with the Claim (e.g., relating to the future use of any infringing Services). Customer will not defend or settle any Claim without Aembit’s prior written consent. Customer will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Aembit will have sole control over the defense and settlement of the Claim.
7.2 Indemnification of Infringement Claims. Aembit will indemnify Customer from and pay all damages, costs, and attorneys’ fees finally awarded against Customer in any Claim under Section 7.1; all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Customer in connection with the defense of a Claim under Section 7.1 (other than attorneys’ fees and costs incurred without Aembit’s consent after Aembit has accepted defense of the Claim); and all amounts that Aembit agrees to pay to any third party to settle any Claim under Section 7.1.
7.3 Exclusions from Obligations. Aembit will have no obligation under this Section 7 for any infringement or misappropriation to the extent that it arises out of or is based upon use of the Services in combination with other products or services; the Services are provided to comply with designs, requirements, or specifications required by or provided by Customer; use of the Services by Customer for purposes not intended or outside the scope of the license granted to Customer; Customer’s failure to use the Services in accordance with instructions provided by Aembit; or any modification of the Services not made or authorized in writing by Aembit.
7.4 Limited Remedy. This Section 7 states Aembit’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third party intellectual property right by the Services.
8.1 Defense. Customer will defend Aembit from any actual or threatened third party Claim arising out of or based upon Customer’s use of the Services or Customer’s breach of any of the provisions of this Agreement if: Aembit gives Customer prompt written notice of the Claim; Aembit grants Customer full and complete control over the defense and settlement of the Claim; Aembit provides assistance in connection with the defense and settlement of the Claim as Customer may reasonably request; and Aembit complies with any settlement or court order made in connection with the Claim. Aembit will not defend or settle any Claim without Customer’s prior written consent. Aembit will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Customer will have sole control over the defense and settlement of the Claim.
8.2 Indemnification. Customer will indemnify Aembit from and pay all damages, costs, and attorneys’ fees finally awarded against Aembit in any Claim under Section 8.1; all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Aembit in connection with the defense of a Claim under Section 8.1 (other than attorneys’ fees and costs incurred without Customer’s consent after Customer has accepted defense of the Claim); and, all amounts that Customer agrees to pay to any third party to settle any Claim under Section 8.1.
9.1 Disclaimer of Indirect Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, AEMBIT WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF AEMBIT IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
9.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL AEMBIT’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO AEMBIT DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
9.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY AEMBIT TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 9 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
10.1 Relationship. Aembit will be and act as an independent contractor (and not as the agent or representative of Customer) in the performance of this Agreement.
10.2 Assignability. Neither party may assign its right, duties, and obligations under this Agreement without the other party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that a party may assign this Agreement without the other party’s consent to a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law) if the successor agrees to assume and fulfill all of the assigning party’s obligations under this Agreement.
10.3 Subcontractors. Aembit may utilize a subcontractor or other third party to perform its duties under this Agreement so long as Aembit remains responsible for all of its obligations under this Agreement.
Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth on the signature page of this Agreement and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section 10.6. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.
10.5 Force Majeure.
Neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.
10.6 Governing Law.
This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Delaware, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in New Castle County, Delaware in connection with any action arising out of or in connection with this Agreement.
The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Services under this Agreement is found to be illegal, unenforceable, or invalid, Customer’s right to use the Services will immediately terminate.
10.9 Modification of Terms.
Aembit may, from time to time, modify the terms of this Agreement. Revisions will be effective immediately except that, for existing users, material revisions will be effective 30 days after posting or notice to you of the revisions unless otherwise stated. Aembit may require Customer to accept modified terms in order to continue use of the Services. If Customer does not agree to the modified terms, Customer should discontinue use of the Services. Except as expressly permitted in this Section 10, this Agreement may be amended only by a written agreement signed by authorized representatives of the parties.
10.10 Modification of the Service.
Aembit reserves the right to modify or discontinue all or any portion of the Services at any time (including by limiting or discontinuing certain features of the Services), temporarily or permanently, without notice. Aembit will have no liability for any change to the Services, including any paid-for functionalities of the Services, or any suspension or termination of Customer’s access to or use of the Services.
10.11 Entire Agreement.
This Agreement, including all exhibits, is the final and complete expression of the agreement between these parties regarding Customer’s use of the Services. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior nondisclosure or comparable agreement between the parties executed prior to this Agreement being executed, nor does it affect the validity of any agreements between the parties relating to professional services relating to the Services that Aembit may provide. No employee, agent, or other representative of Aembit has any authority to bind Aembit with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement.