Last Updated: May 25, 2022
These General Terms and Conditions, when incorporated by the applicable Ordering Document (defined below), will constitute a contractually binding agreement (collectively, the “Agreement”) between the Armis entity identified in Section 17 below (“Armis”), and the counterparty identified as the “Customer” in the Ordering Document (“Customer”) (Armis and Customer each, a “Party,” and collectively, the “Parties”).
PLEASE READ THE FOLLOWING TERMS CAREFULLY:
1. Proprietary Rights
1.1. Rights to Use. During the Subscription Term and subject to the terms and conditions of this Agreement, Armis hereby grants to Customer a non-exclusive, non-transferable (except under Section 18), irrevocable (subject to Armis’ right to terminate the Agreement) and non-sublicensable license to: (a) access and use the SaaS Component, Documentation and Content; and (b) install and use the Collector; in the case of clauses (a) and (b), solely for Customer’s internal business purposes. Without limiting the prior sentence, all use of the Platform must be in accordance with the Documentation and subject to any use limitations indicated in the applicable Ordering Document.
1.2. Authorized Users. Customer is solely responsible for: (a) identifying and authenticating all Authorized Users; (b) approving access by such Authorized Users to the Platform; (c) ensuring the Authorized Users comply with the terms of this Agreement as if they were a party to it, and that none of Customer’s personnel, agents, or advisors who are not Authorized Users access or attempt to access the Platform; and (d) all activities that occur under its and its Authorized Users’ usernames, passwords or accounts. Armis is not responsible for any losses arising due to any breach of this Agreement by any Authorized User or any other personnel, agent or advisor of Customer. Customer will notify Armis immediately of any unauthorized use of the Platform.
1.3. Restrictions. Customer may not, directly or indirectly, and may not authorize any third party to: (a) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code, structure, ideas, algorithms, or associated know-how, or reconstruct or discover any hidden or non-public elements, of the Platform (except to the extent expressly permitted by applicable law notwithstanding this restriction); (b) translate, adapt, or modify the Platform Assets; (c) write or develop any program based upon the Platform Assets, or, to the fullest extent permitted by applicable law, otherwise use any portion of the Platform Assets in any manner for the purpose of developing, distributing or making accessible products or services that compete with any portion of the Platform Assets; (d) sell, sublicense, transfer, assign, lease, rent, distribute, or grant a security interest in the Platform Assets or any rights thereto; (e) permit any portion of the Platform Assets to be used by any persons other than Authorized Users; (f) transmit to or from the Platform any data, materials or other content that infringes, misappropriates or otherwise violates any third party intellectual property or other rights; (g) alter or remove any trademarks or proprietary notices contained in or on the Platform Assets; (h) circumvent or otherwise interfere with any authentication or security measures of the Platform or otherwise interfere with or disrupt the integrity or performance thereof; (i) use any portion of the Platform Assets in violation of or non-compliance with any applicable laws, rules or regulations (including regarding export controls); or (j) disclose the results of any testing or benchmarking of the Platform to any third party (except a Service Provider, as defined in Section 2.2.1). The SaaS Component is designed to be run as a single-tenant instance, and licenses may not be shared among multiple Customers. For the avoidance of doubt, Customer may not make available any part of the Platform Assets as part of a multitenant or time-sharing service, or as a service bureau. Customer acknowledges that Armis may, but is under no obligation to, monitor Customer’s use of the SaaS Component. Armis may suspend Customer’s or any Authorized User’s access to the SaaS Component for any period during which Customer is, or Armis has a reasonable basis for alleging Customer or such Authorized User is, in noncompliance with any of the prohibited actions in this Section. Customer must promptly notify Armis in writing if it becomes aware of, or has reason to believe, that any of the prohibitions listed in this Section has been breached by Customer or any Authorized User.
1.4. Updates. Armis will provide Customer with all Updates that Armis may, in its sole discretion, make generally available to its licensees at no additional charge. All Updates provided to Customer are deemed included within the license in Section 1.1.
1.5. Ownership. Except for the rights granted to Customer in Section 1.1, as between the Parties, Armis solely owns and retains all rights, title and interest, including all intellectual property rights, in and to all technology, software, algorithms, user interfaces, trade secrets, techniques, designs, inventions, works of authorship and other tangible and intangible material and information incorporated into or constituting any portion of the Platform Assets (but excluding any Customer Data) and Developed IP (defined in Section 5) (“Armis IP”). Except for the rights granted to Armis in Section 3, as between the Parties, Customer solely owns and retains all rights, title and interest in and to Customer Data and Feedback (defined in Section 3). Each Party retains all rights that are not expressly licensed to the other Party in this Agreement and does not grant the other Party any implied licenses in this Agreement under any theory.
2. Obligations. Without limiting any other terms set forth in this Agreement:
2.1.1. Armis will: (a) provide Customer with access to the Platform Assets, Support Services, and Professional Services; and (b) use commercially reasonable efforts to make the SaaS Component available as set forth in SLA/SLO.
2.1.2. Armis will maintain commercially reasonable administrative, technical, and physical safeguards designed to protect the security, confidentiality, and integrity of Customer Data as set forth in the security documents and reports, as updated from time to time, available via Armis’ Trust Portal.
2.2.1. Customer may engage a service provider (“Service Provider”) to use and administer the Platform on its behalf in accordance with this Agreement. Under such circumstances, Customer must: (a) enter into a written agreement with the Service Provider requiring the Service Provider to comply with this Agreement and to cease all use of the Platform upon termination of its relationship with Customer; and (b) promptly provide Armis with a copy of such written agreement upon Armis’ request.
2.2.2. In connection with Armis’ provision of the Platform, Customer acknowledges that Authorized Users will be required to perform certain tasks and provide Armis with certain information to facilitate use of the Platform as set forth under Section 1.1 (“Customer Dependencies”). Customer understands that Armis’ provision of the Platform is dependent on Customer’s timely and effective satisfaction of the Customer Dependencies hereunder and timely decisions and approvals by Customer, on which Armis will be entitled to rely.
3. Customer Data and Feedback.
3.1. Customer Data. Customer hereby grants to Armis during the Subscription Term a non-exclusive, irrevocable (subject to Customer’s rights to terminate the Agreement), non-transferable (except under Section 18), royalty-free and worldwide license, with the right to grant and authorize sublicenses as set forth below, to process, transmit, store, use, disclose, and benefit from the Customer Data in connection with the performance of its obligations or the exercise of its rights under this Agreement. Armis may sublicense the license under this Section to any third party who acts for or in support of Armis, provided that Armis is responsible for any breach of this Agreement by any such sublicensee. To the extent Armis is acting as a data processor to Customer under the General Data Protection Regulation, the terms and conditions set forth in the GDPR Data Processing Addendum will apply. To the extent Armis is acting as a service provider to Customer under the California Consumer Privacy Act, the terms and conditions set forth in the CCPA Data Processing Addendum will apply.
3.2. Aggregated Data. Notwithstanding anything to the contrary in this Agreement, Armis may collect and compile Aggregated Data (including based on Customer Data input into or processed by the Platform). Armis solely owns and retains all rights, title and interest in and to the Aggregated Data.
3.3. Feedback. From time-to-time, Customer may make available to Armis, directly or indirectly, feedback, analysis, suggestions or comments about the Armis IP (collectively, “Feedback”). Customer hereby grants to Armis a non-exclusive, perpetual, irrevocable, transferable, royalty-free and worldwide right, with the right to grant and authorize sublicenses, to use and benefit from such Feedback to provide and improve the Platform and Armis’ business without any compensation or credit due to Customer.
4.1. Lease. Subject to the terms and conditions of this Agreement, Armis hereby leases to Customer, and Customer hereby leases from Armis, any Hardware Appliance provided under this Agreement. Customer will install and use the Hardware Appliance at the location agreed to by the Parties in writing in the applicable Ordering Document. Customer may not move the Hardware Appliance to any other location unless it obtains prior express written consent from Armis.
4.2. Hardware Appliance. If Armis provides Customer with a Hardware Appliance, Customer will use it in a careful and proper manner in accordance with the Documentation, and in compliance with all applicable laws, ordinances or regulations. Customer may not use it other than for the purpose for which it was provided to Customer. If the Hardware Appliance is lost, stolen, destroyed, or damaged for any reason, or Customer fails to timely return it upon the expiration or termination of this Agreement, Armis may issue to Customer an invoice for the purchase price of such Hardware Appliance, and payment therefore will be due upon receipt of such invoice.
4.3. Shipment and Delivery.
4.3.1. Shipment and Delivery Requirements. Armis will ship the Hardware Appliance to a location agreed upon by the Parties in writing (a “Delivery Location”) using Armis’ standard methods for packaging and shipping. Armis may make partial shipments of Hardware Appliances, each of which constitutes a separate order, and Customer will pay for each of the units shipped in accordance with Section 6. Any time quoted for delivery is an estimate only. All fees charged by Armis for Hardware Appliances are according to Carriage Paid To Delivery Location (Incoterms 2020) and are inclusive of shipping costs but may not be inclusive of other costs including destination charges or customs duty, as applicable, for which Customer is responsible.
4.3.2. Risk of Loss. Risk of loss for the Hardware Appliance will pass to Customer upon delivery to Armis’ designated carrier in accordance with Carriage Paid To Delivery Location (Incoterms 2020). Without limiting the foregoing, if Customer fails to accept delivery of any Hardware Appliance on the date when the same have been delivered at the Delivery Location, or if Carrier is unable to deliver any Hardware Appliance at the Delivery Location on such date because Customer has not provided appropriate instructions, documents, licenses, or authorizations: (a) risk of loss to the Hardware Appliance will remain with the Customer; (b) the Hardware Appliance will be deemed to have been delivered; (c) Armis, at its option, may store the Hardware Appliance until Customer picks it up; and (d) Customer will be liable for all related costs and expenses (including storage, insurance, and additional shipping costs).
4.3.3. Acceptance of Hardware Appliance.
184.108.40.206. Inspection. Within ten (10) days after delivery of the Hardware Appliance to the Delivery Location, Customer will be deemed to have accepted the Hardware Appliance unless it earlier notifies Armis in writing and furnishes written evidence as reasonably required by Armis that the Hardware Appliance: (a) are damaged, defective, or otherwise do not conform to the applicable Ordering Document; or (b) were delivered to Customer in error. If Customer notifies Armis pursuant to this Section, and Armis in its reasonable discretion agrees that the foregoing clause (a) or (b) applies, then Armis will determine, in its sole discretion, whether to repair or replace the applicable Hardware Appliance.
220.127.116.11. Shipping. Customer will ship, at its expense and risk of loss, all Hardware Appliance to be repaired or replaced under Section 4.3 to a location identified by Armis. If Armis repairs or replaces the Hardware Appliance under Section 18.104.22.168, Armis will ship to Customer, at Armis’ expense and risk of loss, the repaired or replaced Hardware Appliance to the original Delivery Location and will reimburse Customer for all reasonable shipping costs incurred by Customer from sending the Hardware Appliance to Armis.
22.214.171.124. Limitation on Remedy. The remedies set out in Section 4 are Customer’s exclusive remedies, regarding any Hardware Appliance for which Customer has accepted delivery under Section 4. Except as provided under Section 4 and subject to Customer’s obligation to return all Hardware Appliances upon termination or expiration of this Agreement, all deliveries of Hardware Appliances under this Agreement are made on a one-way basis, and Customer has no other right to return delivered Hardware Appliances.
4.4. Ownership; Liens. As between the Parties, Armis solely holds title to the Hardware Appliance. Customer will keep the Hardware Appliance free of all security interests, liens, and other encumbrances during the Term.
5. Professional Services. Armis will use commercially reasonable efforts to perform the Professional Services, if any, set forth in each Ordering Document. Nothing in this Agreement or any Ordering Document will limit or prevent Armis from developing similar work product or deliverables for any third party. Any and all technology in any form or medium, including software and other works of authorship, data, databases, and collections of data, inventions (whether or not patentable) or discoveries, trade secrets and confidential information, and any processes, know-how, or techniques, in each case, that is conceived, developed, or reduced to practice by or on behalf of Armis in connection with the Professional Services (collectively, “Developed IP”) is solely owned by Armis. Any Developed IP that Armis incorporates into the Platform or Documentation is deemed covered by the license to Customer in Section 1.1.
6. Payment. All of Armis’ obligations under this Agreement are conditioned on Customer’s upfront payment in full of the applicable fees set forth in the Ordering Document. Unless otherwise specified in the Ordering Document: (a) Customer will pay all amounts due under this Agreement in U.S. Dollars currency; (b) all amounts invoiced hereunder are due and payable within thirty (30) days of the date of the invoice; and (c) all fees and other amounts paid hereunder are non-refundable. Any amount not paid when required to be paid hereunder will accrue interest on a daily basis until paid in full at the lesser of: (i) the rate of one and a half percent (1.5%) per month; or (ii) the highest amount permitted by applicable law. All amounts payable under this Agreement are exclusive of all sales, use, value-added, withholding, and other direct or indirect taxes, charges, levies and duties (collectively, “Taxes”), and all such Taxes are Customer’s sole responsibility. If applicable law requires Customer to withhold amounts on payments owed to Armis pursuant to this Agreement, Customer shall: (y) effect such withholding and remit such amounts to the appropriate taxing authorities; and (z) ensure that, after such deduction or withholding, Armis receives and retains, free from liability for such deduction or withholding, a net amount equal to the amount Armis would have received and retained in the absence of such required deduction or withholding. Further, if applicable law requires Armis to collect any Taxes from Customer in connection with this Agreement, then Armis will issue an invoice for such amounts and Customer will remit those amounts to Armis in accordance with Section 6.
7. Free Trials.
7.1 Trial Term and Access. If Customer has registered for a free trial of the Platform Assets, Armis will provide access to the Platform Assets to Customer on a trial basis free of charge from the date indicated on the trial registration web page until the earlier of: (a) the end of the free trial period for which Customer registered; (b) the start date of any purchased subscriptions ordered by Customer; or (c) termination by Armis in its sole discretion (the “Free Trial Period”). If Customer executes an order for a purchased subscription, the terms of this Agreement will continue to govern. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. Customer shall review the applicable Documentation during the free trial period to become familiar with the features and functions of the Platform before making a purchase.
7.2 DATA DURING TRIALS. ANY DATA CUSTOMER ENTERS INTO THE PLATFORM AND ANY CUSTOMIZATIONS MADE TO THE PLATFORM BY OR FOR CUSTOMER DURING THE FREE TRIAL PERIOD WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUCCESSIVE SUBSCRIPTION THAT PROVIDES AT LEAST THE SAME LEVEL OF ACCESS AS THE FREE TRIAL OR EXPORTS SUCH DATA BEFORE THE END OF THE TRIAL PERIOD.
7.3 WARRANTIES; INDEMNIFICATION; LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, INCLUDING SECTIONS 11 AND 13.1 BELOW, DURING THE FREE TRIAL PERIOD, ACCESS TO THE PLATFORM ASSETS IS PROVIDED “AS-IS” WITHOUT ANY WARRANTY, AND ARMIS SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE PLATFORM ASSETS DURING THE FREE TRIAL PERIOD UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW, IN WHICH CASE ARMIS’ LIABILITY WITH RESPECT TO THE ACCESS TO THE PLATFORM ASSETS PROVIDED DURING THE FREE TRIAL PERIOD SHALL NOT EXCEED, IN THE AGGREGATE, $1,000.00. WITHOUT LIMITING THE FOREGOING, ARMIS AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE PLATFORM ASSETS DURING THE FREE TRIAL PERIOD WILL MEET CUSTOMER’S REQUIREMENTS, (B) CUSTOMER’S ACCESS TO THE PLATFORM ASSETS DURING THE FREE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE, OR FREE FROM ERROR, OR (C) ANY DATA PROVIDED DURING THE FREE TRIAL PERIOD WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, INCLUDING SECTION 12 BELOW, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO ARMIS AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S ACCESS OR USE OF THE PLATFORM ASSETS DURING THE FREE TRIAL PERIOD, ANY BREACH BY CUSTOMER OF THIS AGREEMENT, AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.
8. Customer Account. The Platform may only be used by or for Customer through an account that is specific to Customer (the “Account”). Customer will ensure that the Authorized Users keep their Account login details secure at all times and will treat such Account login details with at least the same degree of care as Customer’s most sensitive confidential information. Unauthorized access or use of the Account or the Platform must be immediately reported to Armis.
9. Third-Party Components. The Platform may use or include third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third-Party Components”). Although the Platform is provided under the terms of this Agreement, nothing in this Agreement prevents, restricts, or is intended to prevent or restrict Customer from obtaining Third-Party Components under the applicable third-party licenses or to limit Customer’s use of Third-Party Components under those third-party licenses. A list of all Third-Party Components in the current version of the Platform, as updated from time to time, is available via Armis’ Trust Portal.
10. Confidentiality. The Receiving Party may use the Disclosing Party’s Confidential Information solely to perform its obligations under this Agreement. Except as set forth in the immediately following sentence, the Receiving Party will not disclose the Disclosing Party’s Confidential Information to any third party except to its employees, consultants, affiliates, agents, and subcontractors having a need to know such information to perform its obligations under this Agreement who have signed a non-disclosure agreement with the Receiving Party containing terms at least as protective of the Disclosing Party’s Confidential Information as those contained herein. The Receiving Party may disclose the Disclosing Party’s Confidential Information to the extent that such disclosure is required by law or by the order or a court of similar judicial or administrative body, provided that it notifies the Disclosing Party of such required disclosure to enable Disclosing Party to seek a protective order or otherwise seek to prevent or restrict such disclosure. All right, title, and interest in and to Confidential Information are and will remain the sole and exclusive property of the Disclosing Party. The Receiving Party will use no less than reasonable efforts to protect the Disclosing Party’s Confidential Information from unauthorized access, use, or disclosure. Notwithstanding anything to the contrary in this Agreement, Armis’ obligations with respect to the protection of Customer Data are solely as set forth in Section 2.1.2.
11.1. General. Each Party represents and warrants that: (a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; and (b) the execution and performance of this Agreement will not conflict with other agreements to which it is bound or violate applicable law.
11.2. Software Warranty. Armis represents and warrants that the SaaS Component and Virtual Appliance will substantially perform in conformance with the Documentation when used in accordance with the Documentation and this Agreement. As the Customer’s sole and exclusive remedy and Armis’ sole liability for breach of this warranty, Armis will use commercially reasonable efforts to correct the applicable deficiencies with the SaaS Component and Virtual Appliance in accordance with the SLA/SLO. The warranty set forth in this Section will not apply if the failure of the SaaS Component and Virtual Appliance results from or is otherwise attributable to: (a) repair, maintenance, or modification of the SaaS Component and Virtual Appliance by persons other than Armis or its authorized contractors; (b) accident, negligence, abuse, or misuse of the SaaS Component and Virtual Appliance; (c) use of the SaaS Component and Virtual Appliance other than in accordance with the Documentation or this Agreement; (d) Customer’s failure to implement software updates provided by Armis specifically to avoid such failure; or (e) the combination of the Platform with technology not authorized or provided by Armis.
11.3. Hardware Warranty. Armis warrants that the Hardware Appliance will conform to the specifications set forth in the Documentation in all material respects during the first three (3) years of the Term (“Hardware Warranty”). If Customer reasonably believes the Hardware Warranty has been breached, then: (a) Customer must notify Armis in writing (“Hardware Warranty Claim”); and (b) Armis in good faith will assess the validity of the Hardware Warranty Claim. If Armis determines the Hardware Warranty Claim is valid, then Customer’s sole remedy, and Armis’ sole liability, will be to replace or repair, at its option, the Hardware Appliance and deliver the same to Customer’s address set forth in the Ordering Document. A Hardware Warranty Claim will not be valid if Armis in good faith determines that such claim arises from Customer or any other party misusing, mishandling, neglecting, tampering with, or otherwise modifying the Hardware Appliance (or attempting to do any of the foregoing).
11.4. DISCLAIMER. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH ABOVE IN THIS SECTION, ARMIS HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, NON-INTERFERENCE, AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, ARMIS DOES NOT WARRANT THAT (A) THE USE OF THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE, OR (B) THE PLATFORM WILL DETECT, PREVENT, OR PROTECT AGAINST ALL POSSIBLE THREATS WHETHER KNOWN OR UNKNOWN.
12. LIMITATION OF LIABILITY. THE FOLLOWING TERMS APPLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:
12.1. GENERALLY. (A) NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO ANY LOSS OF BUSINESS, REVENUE, REPUTATION, OR PROFITS, DATA, OR DATA USE), AND (B) ARMIS’ MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO ARMIS BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
12.2. DATA SECURITY. THE LIMITATIONS IN SECTION 12.1(B) WILL NOT APPLY TO ANY LIABILITY ARISING OUT OF OR RELATED TO THE UNAUTHORIZED ACCESS OR DISCLOSURE OF CUSTOMER DATA DUE TO ARMIS’ BREACH OF SECTION 2.1.2. ARMIS’ MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THE UNAUTHORIZED ACCESS OR DISCLOSURE OF CUSTOMER DATA DUE TO ARMIS’ BREACH OF SECTION 2.1.2, WHETHER IN CONTRACT, TORT, OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE TWO (2) TIMES THE TOTAL AMOUNTS ACTUALLY PAID TO ARMIS BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
12.3. EXCEPTIONS. THE LIMITATIONS IN SECTION 12.1 WILL NOT APPLY TO (A) ANY INDEMNIFICATION OBLIGATIONS UNDER SECTION 13 (INDEMNIFICATION); (B) LIABILITY FOR ANY INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS; (C) LIABILITY ARISING OUT OF A BREACH OF SECTION 10 (CONFIDENTIALITY); OR (D) AMOUNTS OWED BY CUSTOMER UNDER THIS AGREEMENT.
13.1. Armis. Armis will: (a) defend, or at its option settle, any claim brought against Customer by a third party to the extent it alleges that Customer’s use (as authorized in this Agreement) of any aspect of the Platform during the Term at the time of the claim constitutes a direct infringement of any intellectual property or proprietary rights of any third party (each, a “Claim”); and (b) pay any damages awarded in a final judgment (or amounts agreed in a monetary settlement) in any such Claim defended by Armis; provided that Customer provides Armis: (i) prompt written notice of; (ii) sole control over the defense and settlement of; and (iii) all information and assistance reasonably requested by Armis in connection with the defense or settlement of, any such Claim. If any such Claim is brought or threatened, Armis may, at its sole option and expense: (w) procure for Customer the right to continue to use the applicable infringing parts; (x) modify the Platform to make it non-infringing, such modification to not substantially impact the Platform; (y) replace the affected aspect of the Platform with non-infringing technology having substantially similar capabilities; or (z) if none of the foregoing is commercially practicable, terminate this Agreement. Notwithstanding the foregoing, Armis will have no liability to Customer: (1) for any use of the Platform in combination with software, products, or services not provided by Armis, to the extent that the Platform would not be infringing but for such combination or modification; (2) for, or where any infringement arises as a result of, Customer’s failure to use the Platform in accordance with this Agreement; or (3) for any claims for which Customer has an obligation to indemnify Armis under Section 13.2.
This Section states Armis’ entire liability, and Customer’s exclusive remedy, for claims or alleged or actual infringement.
13.2. Customer. Customer will defend or, at its option, settle, any claim brought against Armis by a third party (including any regulatory authority) alleging that the use by or on behalf of Armis of the Customer Data or any other data obtained by Armis from, or at the direction of, Customer infringes or misappropriates any third party’s rights or violates any laws; provided, that Armis provides Customer with: (a) prompt written notice of; (b) sole control over the defense and settlement of; and (c) all information and assistance reasonably requested by Customer in connection with the defense or settlement of, any such claim. Customer will pay all damages finally awarded against Armis (or the amount of any settlement Customer enters into) with respect to such claim defended by Customer. Armis may appear in connection with such claims, at Customer’s expense, through counsel reasonably acceptable to Customer.
14. Term; Termination. This Agreement will start on the Effective Date and will continue, unless terminated earlier in accordance with this Agreement or renewed, until 12:00 am PT on the day following termination or expiration of the Subscription Term set forth on the applicable Ordering Document (together with any Renewal Term, the “Term”). Except as otherwise specified in an Ordering Document, the Ordering Document will automatically renew for additional periods (each, a “Renewal Term”) equal in length to the expiring Subscription Term/Renewal Term or one year (whichever is shorter), unless either party gives the other written notice of non-renewal at least thirty (30) days before the date of expiration. The per-unit pricing during any Renewal Term will increase by up to 5% above the applicable pricing in the prior term, unless Armis provides Customer notice of different pricing at least sixty (60) days prior to the start of the applicable Renewal Term. Except as expressly provided in the applicable Order Form, renewal of promotional or limited time priced subscriptions will be at Armis’ applicable list price in effect at the time of the applicable renewal. Either Party may terminate this Agreement with immediate effect if the other Party materially breaches this Agreement and such breach remains uncured fifteen (15) days after having received written notice thereof. Upon termination or expiration of this Agreement: (a) the licenses granted in Section 1.1 will expire, and Customer will discontinue any further use and access thereof of the Platform Assets; (b) without limiting the foregoing clause (a), Customer will immediately delete and dispose of all copies of the Documentation, Content, and Virtual Appliance within its possession or control; (c) Armis may delete all Customer Data within its possession or control sixty (60) days after termination or expiration of this Agreement, and prior to that date Customer may request a copy of all Customer Data and Armis will use commercially reasonable efforts to deliver the Customer Data to Customer in a mutually agreed upon format; (d) any sums paid by Customer until the date of termination will be non-refundable, and Customer will immediately pay to Armis all amounts owed but not yet paid to Armis under this Agreement as of the termination or expiration hereof; (e) Customer will promptly return any Hardware Appliance leased under this Agreement to Armis, at its sole cost and risk of loss, to an address specified by Armis; and (f) the following Sections, and all defined terms required to interpret those Sections, will survive: 3.2, 3.3, 4.4, 6, 12.
15. Force Majeure. Armis will not be liable for any delay or failure to perform any of its obligations under this Agreement resulting from circumstances or causes beyond the reasonable control of Armis, including on account of strikes, shortages, riots, insurrection, fires, flood, storms, explosions, acts of God, war, government or quasi-governmental authorities actions, acts of terrorism, earthquakes, power outages, internet or other technology failures, pandemic or epidemic (or similar regional health crisis).
16. Entire Agreement. This Agreement, including all Order Forms, represents the complete agreement concerning the subject matter hereof and may be amended only by a written agreement executed by both Parties. Each Order Form that has been executed by both Parties incorporates this Agreement by reference. To the extent of any conflict between the main body of this Agreement and a respective Order Form, the former will prevail, unless and to the extent that the Order Form expressly states the specific provision to be changed and the precise change being made in the “Special Terms” Section of the Order Form. Any other Customer document that purports to override the terms of this Agreement will not have such effect unless agreed to in writing by Armis.
17. Parties. The Armis entity that Customer is contracting with under this Agreement depends on where the Customer is domiciled as follows:
18. Miscellaneous. The failure of either Party to enforce any rights granted hereunder or to take action against the other Party in the event of any breach hereunder will not be deemed a waiver by that Party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. All waivers of rights arising under this Agreement must be made in writing by the Party making the waiver. The Agreement may only be amended by mutual express written agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, that court will amend the provision to the extent necessary to make it enforceable and best reflect the Parties’ original intent. Armis provides the Platform Assets for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to Platform Assets include only those rights customarily provided to the public as specified in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, then it must negotiate with Armis to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in the applicable agreement. Neither Party may assign this Agreement or any of its rights under this Agreement without the prior written consent of the other Party, which consent may not be unreasonably withheld or delayed. Notwithstanding the foregoing, this Agreement may be assigned by either Party in connection with a merger, consolidation, sale of all of the equity interests of the Party, or a sale of all or substantially all of the assets of the Party to which this Agreement relates. This Agreement will be governed by and construed under the laws of the State of California, without reference to principles and laws relating to the conflict of laws. The competent courts of San Francisco will have the exclusive jurisdiction with respect to any dispute and action arising under or in relation to this Agreement. This Agreement does not, and will not be construed to, create any relationship, partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the Parties. Unless context clearly requires otherwise, whenever used in this Agreement: (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”, the words “hereof,” “hereunder,” “herein,” and similar terms mean under this Agreement (including any attachments hereto), and the word “or” is deemed to mean “and/or”; (b) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; (c) the headings in this Agreement are for reference only and do not affect the interpretation of this Agreement; and (d) references to “ordered” or similar terms pertaining to any Armis property that is licensed or leased under this Agreement means those assets are licensed or leased and is not intended to mean such assets are in fact sold.