MSSP Master License Agreement

Version / Date: 2017-01-25

This MSSP Master License Agreement (“Agreement”), effective as of the Effective Date, is entered into and between AlienVault, Inc. (“AlienVault”) a Delaware corporation, with its principal place of business at 1875 S. Grant Street, Suite 200, San Mateo, CA 94402 and customer identified on the Sales Order (“Customer”), with its address as provided on the Sales Order, and is subject to the terms and conditions thereof. In the event of conflict between the terms a Sales Order and the terms of this Agreement, the terms of this Agreement shall control.

1. DEFINITIONS
   “AlienVault Unified Security Management™ (AV-USM™) Platform” means the object code copy of the AV-USM™ software developed by AlienVault to integrate with OSSIM by AlienVault, including Updates thereof.
   
   “Derivative Works” means a revision, enhancement, translation, abridgment, condensation, or expansion of Software or any other form in which such Software may be recast, transferred, or adapted, which, if used without the consent of AlienVault, would constitute a copyright infringement.
   
   “Documentation” means the user manuals and any other materials, including updates thereto, in any form or medium made generally available by AlienVault or its Partners to the End Users, regarding the proper installation and use of the Software.
   
   “End Users” means the end users that Customer sells services to utilizing the Software.
   
   “End User License” means as License to use the Software granted to an End User pursuant to this Agreement.
   
   “Effective Date” shall mean the effective date set forth in the Sales Order or, if no effective date is specified, the date of Customer signature on the Sales Order.
   
   “Error” means incorrect code in the Software or an incorrect statement or diagram in Documentation that produces results not in conformity with specifications described in the applicable Documentation.
   
   “Fees” means the fees payable by Customer to AlienVault as set forth in the Sales Order.
   
   “License” means a license granted by AlienVault to Customer or End User, as the case may be, that allows Customer to use the Software in strict accordance with this Agreement.
   
   “Maintenance Patch” means a release of or for the Software that includes the most recent Resolutions.
   
   “Maintenance Services” means the provision of Resolutions, Maintenance Patches, and Updates in relation to the Supported Products during the Support Period as more specifically defined as https://www.alienvault.com/terms/usm-terms-9june2016#support.
   
   “New Versions” means new releases and new versions of the Software by AlienVault.
   
   “OSSIM by AlienVault” means the AlienVault security information and event management (SIEM) software distributed to the public under an open source license (GPL Version 3.0, available at http://www.gnu.org/licenses/gpl.html) and including the AlienVault Unified Security Management™ (AV-USM™) platform, including Updates thereof.
   
   “Partners” means distributors and resellers authorized by AlienVault or its distributors to re-sell the Software, or an AlienVault authorized co-branded version of the Software.
   
   “Sales Order” shall mean the authorized AlienVault sales order which incorporates the terms of this MSSP Master License Agreement.
   
   “Software” means the AlienVault Unified Security Management™ (AV-USM™), OSSIM by AlienVault, the Documentation, and all third-party software that AlienVault may have purchased or licensed from third parties and delivered to the Customer as part of the Software, as well as any future Updates provided by AlienVault or its Partners.
   
   “Subscription Term” for each End User License means the period that Customer has the right to use such End User License and associated Documentation as set forth in the applicable Sales Order.
   
   “Support” means collectively the Maintenance Services and Technical Support Services AlienVault shall provide in accordance with the Support and Maintenance Services Addendum located at https://www.alienvault.com/terms/usm-terms-9june2016#support.
   
   “Updates” means modifications, revisions, or enhancements to the Software, other than New Versions, typically to correct Errors.
2. INTELLECTUAL PROPERTY RIGHTS
   1. Ownership. Title to the Software, Documentation, Updates, and all patents, copyrights, trade secrets, and other worldwide proprietary and intellectual property rights in or related thereto are and will remain the exclusive property of AlienVault and its licensors. Customer may not remove any titles, trademarks or trade names, copyright notices, legends, or other proprietary markings in or on the Software or Documentation and will not acquire any rights in the Software or Documentation, except the limited license specified in this Agreement. AlienVault and its licensors own all rights in any copy, translation, modification, adaptation or Derivative Works of the Software, including any improvement or development thereof. AlienVault retains all rights not expressly granted to Customer in this Agreement. Customer shall promptly notify AlienVault in writing upon discovery of any unauthorized use of the Software or Documentation or infringement of AlienVault’s proprietary rights in the Software or Documentation.
   2. Open Source Components. OSSIM by AlienVault is provided to Customer under an open source software license, currently the GNU GPL Version 3.0 (http://www.gnu.org/licenses/gpl.html). This software includes certain third-party software as set out in the Documentation, which may be updated from time to time in line with new versions OSSIM by AlienVault (as indicated at https://www.alienvault.com/products/ossim) and which may be used only in accordance with the licenses set forth therein. OSSIM by AlienVault and the AlienVault Unified Security Management™ (AV-USM™) platform, include certain third-party software as set forth in the Documentation, and may be used only in accordance with the licenses set forth therein, which prevail over the terms of this Agreement with respect to such third-party software. Source code for these components is available upon written request to AlienVault. With respect to the AV-USM™, third-party components are integrated by AlienVault for and on behalf of Customer in accordance with this Agreement. Therefore, any third-party software delivered to Customer pursuant to this Agreement, including any third-party's plug-in that may be provided with the AV-USM™ is included for use at Customer’s option, solely in accordance with the corresponding third-party software license(s). AlienVault shall have no liability for Customer or End User’s use of any third-party software.
3. LICENSE GRANT
   1. Software License. Customer is granted a limited, non-exclusive, non-transferable, non-assignable license to: a) incorporate, but not modify, the Software into its own software and/or services used for security analysis (“Customer Application”), (b) market the Software only as integrated into and combined with the Customer Application; (c) allow customers to access and use the Software, solely as part of the Customer Application; and (d) include Documentation with Software. Customer may license and distribute the Customer Application incorporating the Software pursuant to its own license agreement that is no less protective of the Software than the terms of AlienVault’s standard End User License and Services Agreement, located at https://www.alienvault.com/terms/9June2016. Customer may also appoint resellers and third-party distributors to license, sublicense, and distribute the Customer Application incorporating the Software in the same manner as Customer is permitted to do so.
      
      The foregoing license is subject to the following limitations: (a) the Software shall reside on Customer’s or End User’s own servers, if any; (b) Customer shall provide the Software to End User only in combination with a subscription based managed security service and not on a stand-alone or re-sale basis; and (c) Customer may not allow access and use of the Software by any End User which AlienVault reasonably considers to be a competitor. For avoidance of doubt and for quality control purposes, Customer must not market, sell, or distribute AlienVault’s OSSIM with USM Software.
      
      The license granted herein is subject to the specific restrictions and limitations set forth herein, the terms of the open source licenses governing the components included in the Software, and/or any additional licensing restrictions and limitations specified in the Documentation, or by notification and/or policy change posted at www.alienvault.com.
   2. Restrictions on Use. Subject to the terms of the open source licenses governing the open source components referred to in Section 3(B), Customer shall not (i) allow third parties or develop methods for third parties to use the Software; (ii) except as provided by applicable law, decompile, disassemble, or reverse engineer the Software, in whole or in part, and Customer shall not attempt to obtain in any other manner any Software source code, and shall not carry out any action to the detriment of AlienVault’s intellectual property rights or those of its suppliers; (iii) make copies, execute, publish, or reproduce Software or Documentation, unless expressly authorized in this Agreement (and all copies must maintain AlienVault’s copyright notices); (iv) develop any Derivative Works or any type of software program based on Software, the Documentation, or any other Confidential Information of AlienVault; (v) make available, reveal, disclose, offer, or allow the use of Software by third parties, without the prior written consent of AlienVault; (vi) alter or modify the Software without the prior written consent of AlienVault; (vii) reject, avoid, elude, remove, deactivate, or evade, in any way, any protection mechanism of the Software, including without limitation any mechanism used to restrict or control Software functions; (viii) provide or offer access to any third parties to any restricted online access keys or authentication passwords provided by AlienVault for downloading Software; or (ix) disclose to any third party any benchmarking or comparative study involving the Software or Documentation.
4. FEES AND PAYMENT.
   1. MSSP Program Participation Fee. Customer shall pay AlienVault the MSSP Program Participation Fee as set forth in the Sales Order for the Initial Term (as defined in Section 10). These fees shall be non-cancellable and non-refundable. Such MSSP Program Participation Fee shall include any products or services identified within the line item description of the MSSP Program Participation product code on the Sales Order. For the avoidance of doubt, commencing upon Effective Date, Customer is obligated to pay the MSSP Program Participation Fee even if the Customer has not submitted sales orders for End User Licenses.
      
      Failure to pay the MSSP Program Participation Fee or End User License Fee pursuant to the payment terms set forth on the Sales Order shall constitute a breach of this Agreement.
   2. End User License Fee. Customer shall pay AlienVault the subscription fee for End User Licenses (“End User License Fee”) based on the Silver, Gold, or Platinum pricing program, as set forth in the Sales Order and shall include any products or services identified within the description of monthly subscription product code on the Sales Order. All End User Licenses require Customer to maintain an active MSSP Program Participation subscription.
      
      Unless expressly set forth in the Sales Order, AlienVault shall invoice Customer for each End User License Fee upon shipping or providing the keys to the Software. Thereafter, AlienVault will invoice Customer for the End User License Fee on a monthly basis unless otherwise expressly set forth in the Sales Order.
   3. Product Pricing. Pricing for AlienVault Software, Support, and any associated hardware (“Products”) shall be AlienVault’s then current pricing for the Products as provided by AlienVault. AlienVault reserves the right to modify Product prices; provided, however, AlienVault shall provide Customer with written notice.
5. SUPPORT, INFORMATION, REPORTING AND AUDITS
   1. Support. Subject to Customer paying the Fees for Support and Maintenance Services as set forth in the Sales Order, AlienVault will provide Support and Maintenance Services in accordance with AlienVault’s standard terms and conditions located at https://www.alienvault.com/terms/usm-terms-9june2016#support.
   2. Information. Customer will keep and maintain commercially reasonable written records and accounts regarding Customer’s use of Software for at least two (2) years after expiration of the applicable Software license term. Upon the request of AlienVault, Customer shall provide a written report to AlienVault indicating the number of copies of the Customer Application incorporating the Software distributed during such Term. Customer shall not (and shall not permit third parties to) distribute or sublicense more copies of the Customer Application incorporating the Software than the quantity for which Fees have been paid to AlienVault.
   3. Audits. AlienVault, or a certified public accountant designated by AlienVault, shall have the right, upon ten (10) days written notice to Customer, to conduct an inspection and audit of all relevant facilities and records of Customer relating to this Agreement including but not limited to the usage of the Software, the accounting of devices, and current End User assigned to each specific End User License. Such audit shall be conducted during regular business hours at Customer’s offices and data centers and in such manner so as not to unreasonably interfere with Customer’s normal business activities. In no event shall audits be conducted more frequently than once every six (6) months. The audit shall be conducted at AlienVault’s expense; provided, however, that if the audit reveals that Customer has failed to comply with any material term of this Agreement, Customer shall pay all reasonable costs and expenses incurred by AlienVault in conducting the audit, and any applicable unpaid fees.
6. WARRANTY AND WARRANTY DISCLAIMERS
   AlienVault warrants, for a period of ninety (90) days from the original delivery date, that the Software will be free from defects in materials and workmanship and substantially conform to the specifications set forth in the Documentation. All specifications are provided based on testing of the AlienVault Unified Security Management™ platform in a laboratory setting, and actual performance may be affected by network connections, software and hardware configuration and hardware specifications. This limited warranty does not apply to third-party open source software. AlienVault’s entire liability and Customer’s exclusive remedy in case of a breach of the foregoing warranty shall be correction of the error or, at AlienVault’s option, replacement of the Software. This limited warranty is void if the defect has resulted from accident, abuse, negligence, misapplication, or where the Software has not been properly installed or used in accordance with the Documentation.
   
   The Software is not designed, manufactured, or intended for use in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, direct life-support machines, or any other application in which the failure of the Software could lead directly to death, personal injury, or severe physical or property or environmental damage (collectively, “High Risk Activities”). AlienVault and its suppliers expressly disclaim any express or implied warranty with respect to any High Risk Activities.
   
   EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN THIS SECTION, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. ALIENVAULT DOES NOT WARRANT THAT THE SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR FREE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALIENVAULT DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
7. LIMITATION OF LIABILITY
   IN NO EVENT, WHETHER IN TORT, CONTRACT, OR OTHERWISE, SHALL ALIENVAULT OR ITS LICENSORS, PARTNERS, OR SUPPLIERS BE LIABLE TO CUSTOMER OR ANY THIRD PARTIES UNDER THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, COSTS, LOSSES OR EXPENSE, (INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OR INTERRUPTION OF USE, LOSS OF DATA, DAMAGE TO NETWORKS, EQUIPMENT, OR HARDWARE, OR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR TECHNOLOGY), OR ANY AMOUNTS IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER TO ALIENVAULT DURING THE TWELVE (12) MONTH PERIOD PROCEEDING ANY SUCH CLAIM(S). THE FOREGOING LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND DO NOT APPLY TO BODILY INJURY TO A PERSON.
8. CONFIDENTIALITY, CUSTOMER INFORMATION, AND COMMUNICATIONS
   1. Confidentiality. Customer acknowledges and agrees that the Software incorporates confidential and proprietary information developed or acquired by AlienVault including, but not limited to, technical and non-technical data, formulas, patterns, compilations, devices, methods, techniques, drawings and processes related to the Software, which constitutes the valuable intellectual property of AlienVault and its suppliers (collectively, “Confidential Information”).
      
      The parties may use Confidential Information solely in accordance with this Agreement and will take all reasonable precautions necessary to safeguard the confidentiality of such information. The parties will hold in confidence and not disclose, reproduce, distribute, or transmit the Confidential Information, directly or indirectly, in any form, by any means, or for any purpose, except to those of its employees, agents, consultants, or subcontractors who require access for Customer’s authorized use of the Software in accordance with the terms of this Agreement. Customer will implement reasonable security measures to protect such Confidential Information at a level no less restrictive than used to protect its own confidential information.
      
      The parties shall not be restricted under this Section 8 with respect to Confidential Information that the receiving party affirmatively establishes that (i) has or becomes generally available to the public other than as a result of an act or omission of the receiving party or any of its employees, agents, subcontractors or consultants; (ii) was in the possession of the receiving party before receiving the information; (iii) is independently developed by the receiving party without use of the confidential information; or (iv) is required to be disclosed by law, court order or other legal process, provided that the receiving party shall first provide the disclosing party with prompt written notice thereof.
      
      Customer acknowledges that (i) any use or threatened use of the Software in a manner inconsistent with this Agreement, or (ii) any other misuse of the Confidential Information of AlienVault will cause immediate irreparable harm to AlienVault for which there may be no adequate remedy at law. Accordingly, Customer agrees that AlienVault shall be entitled to seek injunctive relief in the event of any such breach or threatened breach by Customer. Nothing contained herein shall limit AlienVault’s right to any remedies at law.
   2. Customer Information. AlienVault may use any technical information Customer provides to AlienVault for any of AlienVault’s reasonable business purposes, including product support and development. Customer acknowledges that the Software may include a monitoring capability that sends anonymous statistics about performance, device utilization and network size remotely to AlienVault. AlienVault will not use technical information in a form that personally identifies the Customer.
   3. Notices. AlienVault may send Customer required legal notices and other communications about the Software, including special offers and pricing or other similar information, customer surveys or other requests for feedback (“Communications”). AlienVault will send Communications via in-product notices or email to registered email addresses of Customer (as provided in the Sales Order) named contacts, or will post Communications on its Website. Customer may notify AlienVault of its desire not to receive any such Communications (which may have a technical impact on Customer’s use of the Software and the provision of any Maintenance and Support Services) by writing to legal@alienvault.com.
9. EXPORT CONTROLS
   Customer hereby represents, certifies and warrants that it is now and will remain in the future compliant with all export control statutes, regulations, decrees, orders, guidelines and policies of the United States Government and the Government of any country in which Customer conducts business pursuant to this agreement including but not limited to the Export Administration Regulations (“EAR”) (15 C.F.R. Parts 730-774) of the U.S. Department of Commerce; the U.S. antiboycott regulations and guidelines, including those under the EAR and U.S. Department of the Treasury regulations; the various economic sanctions regulations and guidelines of the U.S. Department of the Treasury, Office of Foreign Assets Control (“OFAC”), and the USA Patriot Act (Title III of Pub. L. 107-56, signed into law October 26, 2001), as amended; and restrictions against dealings with certain prohibited, debarred, denied or specially designated entities or individuals under statutes, regulations, orders, and decrees of various agencies of the United States Government. Customer certifies that it (1) is not a Person described or designated in the Specially Designated Nationals and Blocked Persons List of OFAC; (2) does not engage in any prohibited dealings or transactions with any such Person and; (iii) does not engage in any dealings or transactions which would cause AlienVault to be in violation of any economic sanctions regulations and guidelines of OFAC. Customer shall indemnify and hold AlienVault harmless arising out of a breach by Customer of this Section 9.
10. TERM AND TERMINATION
    1. Initial Term. The term of this Agreement shall commence upon the Effective Date and remain in effect for the period of any MSSP Program Participation commitment specified in the Sales Order (“Initial Term”), unless earlier terminated as set forth herein. If no MSSP Program Participation commitment is specified in the Sales Order, the Initial Term shall be for a period of one (1) year.
    2. Extension Period. Notwithstanding the foregoing, if the Subscription Term of an End User License extends beyond the Initial Term of this Agreement (“Extension Period”), this Agreement shall automatically be extended to be coterminous with such Subscription Term.
    3. The term of this Agreement shall automatically renew for the period of any Program Participation Commitment specified in an applicable Sales Order executed during the Initial Term or Extension Period, or if none is in place at the time of renewal, then this Agreement shall continue until the Subscription Term of all End User Licenses under the Sales Order have expired.
    4. Either party may terminate this Agreement and the licenses granted hereunder, upon written notice for any material breach of this Agreement to the other party and failure to cure within thirty (30) days following written notice specifying such breach. For avoidance of doubt, Customer’s failure to pay any fee under this Agreement shall constitute a breach of this Agreement.
       
       Upon expiration or termination of this Agreement, Customer will cease all use of the Software and return to AlienVault and/or destroy each copy of the Software and all Documentation and related materials as well as AlienVault’s Confidential Information in Customer’s possession or control, and so certify in writing to AlienVault. Except as expressly provided herein, Sections 1, 2, 5, 6, 7, 8, 9, 11, and 12 of this Agreement shall survive termination.
11. INDEMNIFICATION
    AlienVault shall indemnify and hold harmless Customer and its officers, employees, agents and representatives and defend any action brought against same with respect to any third-party claim, demand or cause of action, including reasonable attorney’s fees, to the extent that it is based upon a claim that the Software infringes or violates any United States patents, copyrights, trade secrets, or other proprietary rights of a third-party. Customer may, at its own expense, assist in such defense if it so chooses, provided that AlienVault shall control such defense and all negotiations relating to the settlement of any such claim. Customer shall promptly provide AlienVault with written notice of any claim which Customer believes falls within the scope of this Section 10. In the event that the Software or any portion thereof is held to constitute an infringement and its use is enjoined, AlienVault may, at its sole option and expense, (i) modify the infringing Software so that it is non-infringing; (ii) procure for Customer the right to continue to use the infringing Software; or (iii) replace said Software with suit­able, non-infringing software. Notwithstanding the foregoing, AlienVault will have no obligation for any claims to the extent such claims result from (i) modifications or alterations of the Software made by or for Customer or any other party that were not provided by AlienVault or authorized by AlienVault in writing; (ii) use outside the scope of the license granted hereunder; (iii) use of a superseded or previous version of the Software if infringement would have been avoided by the use of a newer version which AlienVault made available to Customer; or (iv) use of the Software in combination with any other software, hardware or products not supplied by AlienVault. This indemnity obligation is subject to the limitation of liability and does not apply to any open source components of the Software.
    
    Customer shall indemnify and hold AlienVault harmless from and against all claims, judgments, awards, costs, expenses, damages and liabilities (including reasonable attorneys’ fees) of any kind and nature that may be asserted, granted or imposed against Licensor, arising from or in connection with: (a) any claims that any application or other software supplied by Customer (other than Software provided by Licensor) infringe any third party intellectual property rights; (b) any misrepresentation made by Customer regarding AlienVault or the Software; (c) any breach by Customer of this Agreement; or (d) any warranty, representation or guarantee made by Customer with respect to the Software in addition to the limited warranty set forth in Section 6 of this Agreement.
12. PAYMENT TERMS; TAXES AND SHIPPING
    1. Payment Terms. Fees must be paid in United States Dollars, or as otherwise stated in the Sales Order, and are exclusive of out-of-pocket expenses. Any and all payments made by Customer pursuant to this Agreement are non-refundable. Customer will make payment within thirty (30) days of the date of the invoice. Late payments will incur monthly interest charges of 1.5% per month after forty-five (45) days, or the maximum interest rate permitted by law, whichever is less, together with any collection costs (including reasonable attorneys’ fees). Payment options may be credit card, wire/electronic transfer, company check or other pre-arranged payment method. AlienVault may invoice parts of an order separately. AlienVault is not responsible for pricing, typographical, or other errors, in any quotation or offer and reserves the right to cancel any orders resulting from such errors.
    2. Taxes and Shipping. “Taxes” means any form of taxation, levy, duty, customs fee, charge, contribution or impost of whatever nature and by whatever authority imposed (including without limitation any fine, penalty, surcharge or interest), excluding, however, any taxes based solely on the net U.S. income of AlienVault. All Fees are exclusive of any Taxes. Customer will pay to AlienVault an amount equal to any Taxes arising from or relating to this Agreement, including without limitation, sales, service, use or value added taxes, which are paid by or are payable by AlienVault. If Customer is required under any applicable law or regulation, domestic or foreign, to withhold or deduct any portion of the payments due to AlienVault, then the sum payable to AlienVault will be increased by the amount necessary so that AlienVault receives an amount equal to the sum it would have received had Customer made no withholdings or deductions.
       
       Shipping and handling charges are additional unless otherwise expressly indicated in the Sales Order. Customer must notify AlienVault within thirty (30) days of the date of the invoice or acknowledgement if Customer believes any part of the purchase is missing, incorrect, or damaged. Unless AlienVault is provided with a valid and correct reseller permit or tax exemption certificate applicable to the purchase of products and the ship-to location, Customer shall be responsible for sales and other taxes associated with the order. Shipping dates are estimates only. All terms are FOB Point of Shipment.
13. GENERAL
    1. Assignment. Neither party may assign this Agreement or any right or obligation hereunder without the other party’s prior written consent, provided that AlienVault may assign this Agreement in the event of a merger or consolidation or the purchase of all or substantially all of its assets. This Agreement will be binding upon and inure to the benefit of the permitted successors and assigns of each party.
    2. Foreign Corrupt Practices Act and Anticorruption Laws. Each party agrees in connection with this Agreement to comply with the U. S. Foreign Corrupt Practices Act (the “FCPA”), and all other applicable anticorruption laws (i.e., U.K. Bribery Act of 2010 and local anticorruption laws). Each party further agrees that it, and its employees, officers, directors, principals, agents, brokers and Affiliates shall not directly or indirectly make an offer, payment, promise to pay, or authorize payment or an offer to pay, or offer a gift, promise to give, or authorize the giving of a bribe or, anything of value for the purpose of influencing an act or decision of any government official or other person (including a decision not to act) or inducing an official or other person to improperly use his/her influence to affect any such governmental act or business decision in order to assist in obtaining, retaining or directing any business, or securing any improper advantage. Each party shall have the right to audit the other party’s compliance with this provision during normal business hours no more than once per annum and upon at least fourteen (14) business days’ prior written notice. Each may be required to annually certify compliance with this provision upon written request by the other party. Failure to comply with this provision shall be considered a material breach of the Agreement.
    3. Notices. All notices required to be sent hereunder shall be in writing and shall be deemed to have been given upon (i) the date sent by confirmed facsimile; (ii) on the date it was delivered by courier; or (iii) if by certified mail return receipt requested, on the date received, to the addresses set forth above and to the attention of the signatory of this Agreement or to such other address or individual as the parties may specify from time to time by written notice to the other party.
    4. Force Majeure. AlienVault will not be held responsible for any failure, delay or interruption caused by circumstances outside of its control, such as network failure, network connection failure, earthquake, flooding, strikes, embargos or acts of government. If such event giving rise to Force Majeure lasts for more than 30 days, then either party may terminate this Agreement without such termination giving rise to any liability or right to any refund.
    5. Amendments. Except as expressly stated herein, the terms of this Agreement may not be modified except by a written agreement signed by both parties.
    6. Severability. If any provision of this Agreement is held illegal or unenforceable by any court of competent jurisdiction, such provision shall be deemed severed from the remaining provisions of this Agreement and shall not affect or impair the validity or enforceability of the remaining provisions of this Agreement.
    7. Waiver. No failure of either party to exercise or enforce any of its rights under this Agreement will act as a waiver of those rights.
    8. Jurisdiction. The validity, interpretation and enforcement of this Agreement will be governed by and construed in accordance with the laws of the State of California without giving effect to the conflicts of law provisions thereof or the United Nations Convention on Contracts for the International Sale of Goods. Customer hereby irrevocably consents to jurisdiction of both the state and federal courts located in San Francisco County, California.