Master MSSP License Agreement

Version / Date: 2016-06-02

This Master License Agreement (“Agreement”), effective as of date set forth on the Sales Order (“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 with address identified on the Sales Order ( “Customer”) and is subject to the terms and conditions thereof.

1. DEFINITIONS
   “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.
   
   “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, modification, 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 in any form or medium made generally available by AlienVault or its Partners to the users of the Software, regarding the proper installation and use of the Software.
   
   “End Users” means the end users that Customer sells services to utilizing the Software.
   
   “Fees” means the fees for the Software License (including any renewal or extension thereof), Hardware, Support and Maintenance Services, or any other product or service purchased under this Agreement.
   
   “License” means a license granted by AlienVault to Customer that allows Customer to use the Software in strict accordance with this Agreement.
   
   “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 for the Software, which incorporates the terms of this Master MSSP 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.
   
   “Maintenance and Support Services” means the service for the correction of errors and/or support for the Software, and the issuance of any Updates.
   
   “Updates” means all subsequent releases and versions of the Software that AlienVault makes generally available to customers who have purchased Maintenance and Support Services from AlienVault.
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 of 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 AND FEES
   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/april2016. 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 market and distribute AlienVault’s OSSIM and USM Software together may not market or sell each product separately.
      
      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 2(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.
   3. Fees. Customer shall pay AlienVault the monthly MSSP Participation Fee as set forth in the Sales Order for the Term of the Agreement. These fees shall be non-cancellable and non-refundable. Such MSSP Participation Fee shall include a license to one (1) virtual Federation Server for use in the operations of the managed service provided with the AlienVault Software as well as Support and Maintenance Services covering Customer’s use of the Federation Server itself but exclusive of any End Users or End Licenses. End Licenses will be considered invalid, even if pertinent End License Fees have been paid, if Customer fails to pay the monthly MSSP Participation Fee. For the avoidance of doubt, Customer is obligated to pay the monthly Participation Fee upon signing this Agreement even if there if End Licenses have been yet purchased. Customer shall pay AlienVault a monthly Fee for End Licenses (“End License Fee”) based on one of the Silver, Gold, or Platinum pricing program, as set forth in the Sales Order, and shall include only Level 3 support provided to End Users by AlienVault (Customer shall provide Level 1 and 2 support to End Users). AlienVault shall invoice Customer for each End License Fee upon shipping or providing the keys to the Software. AlienVault will invoice Customer on a monthly basis. Customer may choose not to renew such End License by providing notice to AlienVault at least thirty (30) days prior to the end of the current term. In the event Customer does not provide such notice, this Agreement shall be automatically renewed for additional one (1) year periods.
   4. Product Pricing. Pricing for Products shall be AlienVault’s then current pricing for the Products as provided by AlienVault.
4. SUPPORT, INFORMATION, REPORTING AND AUDITS
   1. Support. Subject to Customer paying the annual 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/may2014.
   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 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.
5. 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.
6. 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.
7. 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.
      
      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 7 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 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.
8. 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 8.
9. TERM AND TERMINATION
   This Agreement and the licenses granted hereunder shall remain in effect for the period specified in the Sales Order (“Initial Term”), unless earlier terminated as set forth herein. If no Initial Term is defined in the Sales Order, the Initial Term shall be for a period of one (1) year. Notwithstanding the foregoing, if an End License extends beyond the term of this Agreement, this Agreement shall automatically be extended to be coterminous with such End Licenses only (“Extension Period”). However, Customer will not be allowed to purchase any new End Licenses during this Extension Period. This Agreement shall automatically renew for the period of any Program Participation Commitment, or if none is in place at the time of renewal, then for a period of one (1) year, unless either party provides at least sixty (60) days’ notice of non-renewal prior to the end of the then current term. AlienVault shall be permitted to adjust pricing for any renewal term upon written notice to Customer. 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.
   
   Upon 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 in Customer’s possession or control, and so certify in writing to AlienVault. Except as expressly provided herein, Sections 1, 2, 4, 5, 6, 7, 8, 10 and 11 of this Agreement shall survive termination.
10. INDEMNIFICATION
    AlienVault shall indem¬nify 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 prompt¬ly 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 suit¬able, 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 5 of this Agreement.
11. PAYMENT TERMS; TAXES AND SHIPPING
    1. Payment Terms. Fees are stated in United States Dollars, must be paid in United States Dollars, 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 at the time of sale. The products will be shipped from AlienVault's manufacturing plant located in Chicago, IL. 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.
12. 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. 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.
    3. Amendments. Except as expressly stated herein, the terms of this Agreement may not be modified except by a written agreement signed by both parties.
    4. 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.
    5. 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.
    6. Jurisdiction. The validity, interpretation and enforcement of this Agreement will be governed by and construed in accordance with the laws of the United States and 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.