These Terms of Service (the “Terms”), together with the Order Form(s) entered into by Realm.Security, Inc. (“Realm.Security”) and the customer named therein (“Customer”) (these Terms of Service together with such Order Form(s) referred to collectively herein as, the “Agreement”) constitute a binding agreement between Realm.Security and Customer (each, a “Party” and collectively the “Parties”). Customer accepts and agrees to be bound by the Agreement by executing an Order Form. These Terms are incorporated by reference into each Order Form.
2.1 Realm.Security Platform. Subject to and in accordance with this Agreement and the applicable Order Forms, including, without limitation, payment of all applicable fees, Realm.Security will make the Realm.Security Platform available to Customer via the Internet on a software as a service basis in accordance with this Agreement and the Service Level Agreement. The service levels applicable to the Realm.Security Platform are set forth in the Service Level Agreement. Realm.Security will provide standard customer support for the Realm.Security Platform during the hours of 9 am to 9 pm EST.
2.2 Access Grant; Users. Subject to Customer’s compliance with the terms and conditions contained in this Agreement, the Realm.Security Documentation, and each Order Form, Realm.Security grants to Customer during the Term the right to allow Users to access and use the Realm.Security Platform for Customer’s internal business purposes and subject to any limitations on the number of Users and consumption set forth in the Order Form. Customer may increase, but may not decrease, its entitlements during a Subscription Term by entering into an expansion Order Form with Realm.Security. If Users are Customer’s third-party independent contractors, consultants, agents or third parties with whom Customer does business, Customer agrees that such Users may not be competitors of Realm.Security and Customer shall be responsible for any breach of this Agreement by any such third party. Customer will ensure that all its Users comply with the terms and conditions of this Agreement, will promptly notify Realm.Security of any suspected or alleged violation of the terms and conditions of this Agreement and will reasonably cooperate with Realm.Security with respect to: (i) investigation by Realm.Security of any suspected or alleged violation of this Agreement, and (ii) enforcement of this Agreement. Realm.Security may suspend or terminate any User’s access to the Realm.Security Platform upon notice to Customer in the event Realm.Security reasonably determines that such User has violated any terms of this Agreement. Customer will (a) use commercially reasonable efforts to prevent unauthorized access to or use of the Realm.Security Platform and Realm.Security Software and notify Realm.Security promptly of any such unauthorized access or use, and (b) use Realm.Security Platform and Realm.Security Software only in accordance with the Documentation and applicable laws and regulations.
2.3 Integrations. The Realm.Security Platform supports Integrations with certain Data Sources to ingest Customer Data into the Realm.Security Platform. Customer’s access and use of such Data Sources shall be governed solely by the terms and conditions of the provider of such Data Sources and Realm.Security does not endorse, is not responsible or liable for, and makes no representations as to any aspect of any Data Sources that Customer connects with the Realm.Security Platform using the Integrations. In order for the Realm.Security Platform to communicate with such Data Sources, Customer may be required to input Customer’s access credentials for the Data Sources in order to authorize the Realm.Security Platform to connect to the Data Sources and to transmit, receive and process Customer Data to provide Business Intelligence and otherwise provide the Realm.Security Platform to Customer. By enabling any Data Sources, Customer is expressly permitting Realm.Security to disclose Customer’s access credentials to the provider of the Data Source and to ingest into the Realm.Security Platform Customer Data from the Data Source as necessary to provide the Realm.Security Platform and Business Intelligence to Customer and its Users. Realm.Security assumes no responsibility for the Data Sources, or their availability or unavailability, or for the accuracy, completeness, integrity or legality of any Customer Data received from the Data Sources. Realm.Security cannot guarantee the continued availability of Integrations to such Data Sources features, and may cease enabling access to them, if, for example and without limitation, the provider of a Data Source ceases to make the Data Source available for interoperation with the Realm.Security Platform in a manner acceptable to Realm.Security. Integrations with Data Sources are dependent on the APIs made available by the Data Sources, and, in the case of Customer’s Data Sources, APIs made available by Customer and Realm.Security assumes no liability for any failure of the Integrations to connect to the Data Sources or to ingest Customer Data that is attributable to the APIs or the Data Sources. Customer irrevocably waives any claim against Realm.Security arising out of or related to any Data Sources, or the connection of Customer’s Realm.Security Platform account with any Data Sources, selected by Customer or its Users.
2.4 System Requirements. A high-speed Internet connection is required for proper use of the Realm.Security Platform and ingestion of Customer Data from Data Sources. Customer is responsible for procuring and maintaining the network connections that connect Customer’s network to the Realm.Security Platform including, but not limited to, browser software that supports protocols used by the Realm.Security Platform. Realm.Security is not responsible for notifying Customer of any upgrades, fixes or enhancements to any such software or for any compromise of data, including Customer Data or Business Intelligence, transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned, operated or controlled by Realm.Security. Realm.Security assumes no responsibility for the reliability or performance of any connections as described in this Section.
3.1 Access Credentials; Use of Realm.Security Platform. Users will receive Access Credentials to access the Realm.Security Platform. These Access Credentials are granted to individual, named persons and may not be shared; provided, however, that Access Credentials may be permanently reassigned between uniquely identified individuals over time, but may not be reassigned so frequently as to enable the sharing of single Access Credentials between multiple Users. Customer will at all times be responsible for all actions taken under Customer’s account or using any of its Access Credentials. Customer will require its Users to keep Access Credentials secure and confidential and will promptly notify Realm.Security of any unauthorized use of any Access Credentials. Customer acknowledges and agrees that Customer’s and its Users’ access and use of the Realm.Security Platform is dependent upon access to telecommunications and Internet services. Customer will be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Realm.Security Platform, including, without limitation, all costs, fees, expenses, and taxes of any kind related to the foregoing.
3.2 Restrictions; Use Guidelines. Customer will not directly or indirectly: (a) adapt, alter, modify, improve, translate or create derivative works of the Realm.Security Platform (or any part thereof including the Realm.Security Technology); or (b) reverse engineer, decompile, disassemble or otherwise attempt to reconstruct or obtain the source code to all or any portion of the Realm.Security Platform; or (c) provide, maintain access to, or use the Realm.Security Platform in any manner inconsistent with this Agreement. Customer shall, and shall ensure that its Users will, use the Realm.Security Platform subject to the limited access rights granted in this Agreement and solely for Customer’s internal business purposes as contemplated by this Agreement and shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Realm.Security Platform available to any third party, including without limitation acting as a service bureau or provides any outsourced business process services to third parties; (ii) interfere with or disrupt the integrity or performance of the Realm.Security Platform, the Realm.Security Technology or the data contained therein or disrupt any servers or networks connected to the Realm.Security Platform, or disobey any requirements, procedures, policies or regulations of networks connected to the Realm.Security Platform; (iii) attempt to gain unauthorized access to the Realm.Security Platform or the Realm.Security Technology or any related systems or networks; (iv) remove, alter or obscure any proprietary notices associated with the Realm.Security Platform; (v) access or use Realm.Security Platform in a United States embargoed country or in violation of any applicable export law or regulation (including any United States export laws and regulations); (vi) use the Realm.Security Platform in violation of any applicable, law, rule regulation or guideline; (vii) attempt to probe, scan, or test (including without limitation stress testing or penetration testing) the vulnerability of any system or network associated with the Realm.Security Platform or breach any security or authentication measures; (viii) utilize the Realm.Security Platform in order to (a) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (b) send or store infringing, obscene, threatening, libelous, or otherwise unlawful, unsafe, malicious, abusive or tortious material, including material harmful to children or violative of third party privacy rights; or (c) send or store Malware; (ix) provide access to the Realm.Security Platform to a competitor or access or use the Realm.Security Platform to (a) build a competitive product or service, (b) build a product or service using similar ideas, features, functions or graphics of the Realm.Security Platform, (c) copy any ideas, features, functions or graphics of the Realm.Security Platform, or (d) determine whether the Realm.Security Platform are within the scope of any patent; or (x) permit direct or indirect access to or use of Realm.Security Platform in a way that circumvents a contractual usage limit, or use Realm.Security Platform to access, copy or use any of Realm.Security Cloud intellectual property except as permitted under this Agreement, an Order Form, or the Realm.Security Documentation.
4. FEES AND PAYMENT. In consideration for the rights granted hereunder, Customer will pay to Realm.Security the fees set forth in each Order Form in accordance with the payment schedule set forth in such Order Form. Unless otherwise specified in any Order Form, all invoices issued by Realm.Security will be due and payable thirty (30) days after Customer’s receipt. All fees are nonrefundable, except as expressly otherwise set forth herein, and will be paid in U.S. dollars and exclude all applicable sales, use, and other taxes. Any fees that are not paid when due are subject to interest at one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. All amounts payable pursuant to an Order Form exclude taxes, levies, duties, sales and use taxes, value added tax, and similar governmental assessments of any nature excluding taxes on Realm.Security’s net income and employees (“Taxes”). Customer is responsible for paying all Taxes. If Realm.Security has the legal obligation to collect Taxes for which Customer is responsible, Realm.Security will invoice Customer and Customer will pay that amount unless Customer provides Realm.Security with a valid tax exemption certificate authorized by the appropriate taxing authority. Customer will make all payments to Realm.Security free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of fees to Realm.Security will be Customer’s sole responsibility, and Customer will provide Realm.Security with official receipts issued by the appropriate taxing authority, or such other evidence as Realm.Security may reasonably request, to establish that such taxes have been paid.
5.1 Customer Data. As between Customer and Realm.Security, Customer owns all right, title and interest in and to the Customer Data and Business Intelligence and reserves all rights not expressly granted to Realm.Security under this Agreement. Customer represents, warrants and covenants that (i) Customer has all required rights and licenses to the Customer Data it submits to the Realm.Security Platform for processing, including all Customer Data transmitted from the Data Sources, and shall be solely responsible for the accuracy, integrity and legality of Customer Data, (ii) the Customer Data, and use of the Realm.Security Platform to process such Customer Data, will not violate applicable laws or regulations or third party rights, and (iii) the Customer Data will not contain any known Malware. Customer grants to Realm.Security a non-exclusive, royalty-free, fully paid, worldwide license, to (directly and indirectly using its third party hosting providers, affiliates and subcontractors) host, use, serve, render, store, access, copy, test, analyze, and create derivative works of the Customer Data for the sole purposes of providing the Realm.Security Platform to Customer as described in this Agreement.
5.2 Data Security. Realm.Security will (i) implement and maintain appropriate security policies, procedures and controls, including, without limitation, technical, physical, administrative and organizational controls, designed to maintain the confidentiality, security, availability and integrity of Customer’s Confidential Information, including Customer Data; (ii) implement and maintain systems and procedures for detecting, preventing and responding to attacks, intrusions, and system failures, and regularly test and monitor the effectiveness of such systems and procedures; (iii) designate employees to coordinate implementation and maintenance of security measurers; (iv) identify internal and external risks to the security, confidentiality, availability and integrity of Customer’s Confidential Information, including Customer Data, that could result in the unauthorized disclosure of, use of, access to, alteration of, destruction of or other compromise of same, and assess the sufficiency of policies, procedures and controls in place to control these risks; and (v) perform periodic (at least annual) penetration testing, vulnerability analysis, and threat analysis as part of its internal security assessments and reviews to identify weaknesses in its security architecture. Collectively, all of the foregoing referred to as “Security Measures”. Upon Customer’s request, Realm.Security will provide Customer with a copy of the executive summary of a third party auditor’s written report of such security assessments and audits including details of findings and recommended solutions to offset the risk, subject to obligations of confidentiality. Realm.Security shall, subject to obligations of confidentiality, provide Customer with a copy of its SSAE 18 SOC SOC 2 report, as and to the extent available, and any successor AICPA reports, as available, no more than annually upon written request of Customer.
6.1 Confidential Information. Each party (the “Disclosing Party”) may from time to time during the term of this Agreement disclose to or learn from the other party (the “Receiving Party”) certain information regarding the Disclosing Party’s business, including without limitation, technical, marketing, financial, employee, planning, and other confidential or proprietary information whether disclosed orally, in writing or visually, that is either marked or designated as confidential or is identified in writing as confidential at the time of disclosure or which the Receiving Party knew or should have known, under the circumstances, was considered confidential or proprietary by the Disclosing Party (“Confidential Information”). For the avoidance of doubt, the Realm.Security Platform, Realm.Security Technology, Realm.Security Platform Analytics, and Realm.Security Documentation constitute Confidential Information of Realm.Security. Further, for the avoidance of doubt, the Customer Data and Business Intelligence constitute Confidential Information of Customer. The Receiving Party’s obligations under this subsection will not apply to any portion of the Disclosing Party’s Confidential Information if the Receiving Party can document that such information: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) was independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
6.2 Protection of Confidential Information. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will (a) protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care; and (b) promptly advise the Disclosing Party upon becoming aware of any loss, disclosure, or duplication of the Confidential Information or of any breach of this Agreement, including, without limitation, the misappropriation of the Confidential Information. Both parties acknowledge and agree that the Disclosing Party may be irreparably harmed by any violation of this Article 6 (Confidentiality) and that the use of the Confidential Information for any purpose other than that stated herein may, among other things, enable the Receiving Party or other third parties receiving such Confidential Information to compete unfairly with the Disclosing Party. Therefore, in the event of a breach or threatened breach, the disclosing party shall be entitled, in addition to all other rights and remedies available at law or in equity, to seek (i) an injunction restraining such breach, without being required to show any actual damage or to post security or other bond; or (ii) a decree for specific performance of the applicable provision of this Agreement. Notwithstanding the termination or expiration of this Agreement, the obligations of the Receiving Party, with respect to the Confidential Information of Disclosing Party, shall be in full force and effect as follows: (A) in the case of any information or materials that constitute a trade secret within the meaning of applicable law, for as long as such information and materials remain as a trade secret, or (B) in the case of any other information or materials, during the term of this Agreement and for five (5) years following the termination or expiration of this Agreement. Customer agrees that Realm.Security shall have the right to list Customer as a customer of Realm.Security, use Customer’s name and logo, in Realm.Security’s on and offline marketing collateral including as a customer on Realm.Security’s customer lists, including a short description of the Realm.Security Platform provided to Customer.
7.1 Warranties by Both Parties. Each party represents and warrants that: (a) it has full power and authority to enter into and perform this Agreement; (b) the person signing this Agreement on such party’s behalf has been duly authorized and empowered to enter into this Agreement; and (c) that it will perform its obligations or exercise its rights hereunder in conformance with all applicable laws, rules, regulations, and guidelines, including, without limitation, those related to privacy and data security.
7.2 Realm.Security Platform Warranty. Realm.Security represents, warrants and covenants that the Realm.Security Platform will include the functionality provided in the Realm.Security Documentation Realm.Security will use best efforts to remediate the nonconformity or if Realm.Security is unable to do so within a commercially reasonable period of time, either party shall have a right to terminate the affected Order Form and Realm.Security shall refund to Customer any prepaid fees for the unexpired remainder of the applicable Subscription Term.
7.3 Disclaimer of Warranty. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS SECTION 7 (WARRANTIES), REALM.SECURITY MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, WHETHER, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION REGARDING THE REALM.SECURITY PLATFORM, THE REALM.SECURITY DOCUMENTATION, THE REALM.SECURITY TECHNOLOGY, OR OTHERWISE WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT AND EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON INFRINGEMENT OF THIRD-PARTY RIGHTS, AS WELL AS ANY WARRANTY, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
8.1 Realm.Security Indemnity. Realm.Security shall defend (at Realm.Security’s expense), Customer and its affiliates and its and their officers, directors and employees from and against any third-party claims, suits, or proceedings ( “Claims”) brought against Customer or its officers, directors or employees by a third party contending that Customer’s use of the Realm.Security Platform in accordance with the Realm.Security Documentation infringes any Intellectual Property Rights of a third party and shall pay all damages finally awarded by a court of competent jurisdiction or agreed to by Realm.Security in settlement of the Claim. In the event that the Realm.Security Platform or any part thereof is likely to, in Realm.Security’s sole opinion, or do become the subject of an infringement related Claim, and Realm.Security cannot, at its option and expense, procure for Customer the right to continue using the Realm.Security Platform, or any part thereof, or modify the Realm.Security Platform, or any part thereof, to make them non infringing, then Realm.Security may terminate this Agreement with notice to Customer and will provide the Customer with a refund of any pre-paid fees for the unexpired portion of the remaining Subscription Term. Realm.Security shall have no liability for any Claim or demand arising from (i) an allegation that does not state with specificity that the Realm.Security Platform is the basis of the Claims; (ii) the use or combination of the Realm.Security Platform or any part thereof with software, hardware, or other materials not developed by Realm.Security if the Realm.Security Platform or use thereof would not infringe without such combination; (iii) modification of the Realm.Security Platform by a party other than Realm.Security, if the use of unmodified Realm.Security Platform would not constitute infringement; (iv) use of the Realm.Security Platform in violation of this Agreement or the Realm.Security Documentation if the claim would not have arisen but for such breach or unauthorized use; or (v) an allegation made against Customer arising out of or related to Customer Data, Integrations, Customer Software, Third Party Services, or open source software. The foregoing states Realm.Security’s entire liability and Customer’s exclusive remedy for infringement of third party intellectual property rights.
8.2 Customer Indemnity. Customer shall defend (at Customer’s expense) Realm.Security and its affiliates, and its and their employees, officers, and directors brought against Customer or its officers, directors or employees by a third party from and against all Claims made or brought against Realm.Security by a third party (i) alleging that the Customer Data, infringes the Intellectual Property Rights of or otherwise violates the rights a third party; or (ii) based upon any use of the Realm.Security Platform in violation of this Agreement or the Realm.Security Documentation, and shall pay all damages finally awarded by a court of competent jurisdiction or agreed to by Customer in settlement of the Claim. The foregoing states Customer’s entire liability and Realm.Security’s exclusive remedy for infringement of third party intellectual property rights.
8.3 Indemnification Process. The foregoing indemnification obligations are conditioned on the indemnified party: (a) notifying the indemnifying party promptly in writing of such action, (b) reasonably cooperating and assisting in such defense at the indemnifying party’s expense, and (c) giving sole control of the defense and any related settlement negotiations to the indemnifying party. Neither party shall settle any claim without the other party’s prior written consent which will not be unreasonably withheld or delayed. The indemnified party may participate in the defense of the claim at the indemnified party’s expense.
9. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCLUDING DAMAGES ARISING FROM MISAPPROPRIATION OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS, DAMAGES ARISING FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR LIABILITY ARISING FROM THE INDEMNIFICATION OBLIGATIONS IN SECTION 8, (A) IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER STATUTE, CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM UNDER WHICH THE CLAIM AROSE DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH SUCH CLAIM OR CAUSE OF ACTION AROSE. THE FOREGOING LIMITATIONS ARE CUMULATIVE AND NOT PER INCIDENT AND SHALL APPLY EVEN IF THE NON-BREACHING PARTY’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE AND (B) IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF BUSINESS, LOSS OF, DAMAGE TO, OR CORRUPTION OF, DATA, LOSS OF USE, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED, WHETHER ARISING UNDER STATUTE, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR WHETHER SUCH DAMAGE WAS FORESEEABLE OR IN THE CONTEMPLATION OF THE PARTIES. THE FOREGOING LIMITATIONS SHALL NOT LIMIT CUSTOMER’S LIABILITY TO MAKE PAYMENT OF UNDISPUTED FEES DUE. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON DURATION OR THE EXCLUSION OF AN IMPLIED WARRANTY, SO THE LIMITATIONS HEREIN MAY NOT APPLY. Each party acknowledges that the fees set forth in this Agreement reflect the allocation of risk between the parties and that the other party would not enter into this Agreement without these limitations on its liability.
11.1 Governing Law; Jurisdiction. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Arizona, without giving effect to any conflicts of laws principles that require the application of the law of a different state. For all disputes relating to this Agreement, each party submits to the exclusive jurisdiction of the state and federal courts located in Maricopa County, Arizona and waives any jurisdictional, venue, or inconvenient forum objections to such courts.The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Customer shall pay on demand all of Realm.Security’s reasonable attorney fees and other costs incurred by Realm.Security to enforce this Agreement or to collect any fees or charges due to Realm.Security under this Agreement following Customer’s breach of its payment obligations under this Agreement or any Order Form.
11.2 Export; Anti-Corruption. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Realm.Security Platform. Without limiting the foregoing, (i) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) Customer shall not permit Users to access or use Realm.Security Platform in violation of any U.S. export embargo, prohibition or restriction. Customer represents that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Realm.Security’s employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer learns of any violation of the above restriction, Customer will use reasonable efforts to promptly notify Realm.Security.
11.3 Severability; Waiver; Remedies. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
11.4 Entire Agreement. To the maximum extent permitted by applicable law, this Agreement, together with the documents referenced herein and all Order Forms executed hereunder, constitute the entire agreement between the parties as to its subject matter, and supersede all previous and contemporaneous agreements, (including without limitation any nondisclosure agreements previously executed by the parties), proposals or representations, written or oral, concerning the subject matter of this Agreement. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the parties prior to this Agreement except as expressly stated in this Agreement. Neither party shall have any remedy in respect of any untrue statement made by the other upon which that party relied in entering into this Agreement (unless such untrue statement was made fraudulently) and that party’s only remedy in respect of any untrue statement shall be for breach of contract as provided in this Agreement. Customer acknowledges and agrees that its agreement hereunder is not contingent upon the delivery of any future functionality or features not specified herein or in an Order Form or dependent upon any oral or written, public or private comments made by Realm.Security with respect to future functionality or features for the Realm.Security Platform. In the event of any conflict between the provisions in this Agreement and any Order Form, the terms of such Order Form shall prevail. No terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. Any modification to these Terms or any Order Form shall require mutual written agreement of the parties.
11.6 No Assignment; Sub-processors. Except as otherwise permitted herein, neither party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or change of control, including without limitation a sale of all or substantially all of its assets, stock or business to which this Agreement relates. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns. Further, notwithstanding the foregoing, Realm.Security will utilize third party service providers and sub-processors who will have access to or process Customer Data and Business Intelligence in the provision of the Realm.Security Platform to Customer and Customer hereby consents to and provides general authorization for Realm.Security’s use of such service providers and. sub-processors. Realm.Security shall be responsible for the acts and omissions of its third party service providers and sub-processors to the same extent that Realm.Security would be responsible if it was performing the services of such third party service providers and sub-processors directly under the terms of this Agreement.
11.7 Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, pandemic, epidemic, failure of utility, telecommunications and/or service providers or any other event beyond the control of such party (“Force Majeure Events”), provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
11.8 Independent Contractors. Realm.Security’s relationship to Customer is that of an independent contractor, and neither party is an agent or partner of the other. Neither party will have, and will not represent to any third party that it has, any authority to act on behalf of the other.
11.9 Notices. All notices under this Agreement shall be in writing. All notices shall be given (i) by delivery in person (ii) by a nationally recognized next day courier service, (iii) by first class, registered or certified mail, postage prepaid, (iv) by facsimile or (v) by electronic mail to the address of the party specified in this Agreement or an Order Form. All notices shall be effective upon (i) receipt by the party to which notice is given, (ii) the second (2nd) day following sending by electronic mail or facsimile, or (iii) on the fifth (5th) day following mailing, whichever occurs first. Each party may change its address for receipt of notice by giving notice of such change to the other party.
11.10 Realm.Security Intellectual Property Rights. The Realm.Security Platform, the Realm.Security Technology, the Realm.Security Platform Analytics, and the Realm.Security Documentation and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of Realm.Security and its licensors. Except for the rights and licenses expressly granted herein, all rights in and to all of the foregoing are reserved by Realm.Security and its licensors. Nothing in this Agreement will be deemed to grant to Customer any right to receive a copy of software platform underlying the Realm.Security Platform, or any other Realm.Security Technology, in either object or source code form. Further, in the event Customer provides Realm.Security any ideas, thoughts, criticisms, suggestions, enhancement requests, techniques, know-how, comments, feedback or other input related to the Services, the Realm.Security Platform or the Realm.Security Technology (including Customer and its Users), (collectively “Feedback”), including without limitation in response to any product plans or roadmaps shared with Customer, unless otherwise agreed in writing prior to such disclosure, Customer grants to Realm.Security a worldwide, royalty-free, fully paid, perpetual, irrevocable license to use, reproduce, modify, translate, distribute, perform, display, import, sell, license, offer for sale, make, have made and otherwise exploit the Feedback in any form, media, or technology, whether now known or hereafter developed, and to allow others to do the same without restriction or obligation of any kind, on account of confidential information, intellectual property rights or otherwise, and may incorporate into its services any service, product, technology, enhancement, documentation or other development (“Improvement”) incorporating or derived from any Feedback with no obligation to license or to make available the Improvement to Customer or any other person or entity.
11.11 Publicity. Realm.Security may not mention Customer and the relationship between Realm.Security and Customer in Realm.Security’s marketing collateral, website, and other promotional and marketing materials without the prior written approval from Customer.
11.12 Counterparts; Electronic Signatures. An Order Form which incorporates these Terms by reference may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument. A manually or electronically signed copy of any Order Form delivered by e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of the Order Form.
11.13 Federal Government End Use Provisions. Realm.Security provides the Realm.Security Platform, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined 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 Realm.Security Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Realm.Security to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
11.14 Construction. The titles of the sections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. Unless the context of this Agreement clearly requires otherwise: (i) references to the plural include the singular, the singular the plural, and the part the whole, (ii) “or” has the inclusive meaning frequently identified with the phrase “and/or,” (iii) “including” has the inclusive meaning frequently identified with the phrase “including but not limited to” or “including without limitation,” and (iv) references to “hereunder,” “herein” or “hereof” relate to this Agreement as a whole. Any reference in this Agreement to any statute, rule, regulation or agreement, including this Agreement, shall be deemed to include such statute, rule, regulation or agreement as it may be modified, varied, amended or supplemented from time to time. The parties agree that this Agreement shall be fairly interpreted in accordance with its terms without any strict construction in favor of or against either party and that ambiguities shall not be interpreted against the drafting party.
“Access Credentials” mean login information, passwords, security protocols, and policies through which Users access and use the Realm.Security Platform.
“Business Intelligence” means the augmentation and unification of Customer’s Data provided through the use of the Realm.Security Platform which is available to Customer through the Realm.Security Platform.
“Customer Data” means all data ingested into the Realm.Security Platform by or on behalf of Customer.
“Data Sources” means the third party service provider platforms and any third party or customer cloud-based or on premises servers, software programs and databases where Customer Data is stored that Customer connects to the Realm.Security Platform using Integrations.
“Intellectual Property Rights” mean any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) registrations, applications, renewals, extensions, or reissues of the foregoing, in each case, in any jurisdiction throughout the world.
“Integration(s)” means the object code version of any components, connecters, middleware or other code that enable the Realm.Security Platform to connect to Data Sources, including all Updates thereto made generally commercially available by Realm.Security.
“Malware” means viruses, Trojan horses, spyware, malware, worms, time bombs, cancelbots, exploitable security vulnerabilities, disabling devices or other harmful component intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system or data.
“Order Form” means Realm.Security’s standard order form signed by an authorized representative of each party and pursuant to which Customer orders the Realm.Security Platform and which sets forth the number of authorized Users and other entitlements and the applicable subscription fees.
“Realm.Security Platform” means the version of the Realm.Security software as a service offering made generally commercially available by Realm.Security as of the Effective Date, and all Updates thereto made generally commercially available by Realm.Security.
“Realm.Security Documentation” means user guides, manuals and other materials, whether in print or electronic form, made available to Customer from time to time during the Term (including through the Realm.Security Platform) that include descriptions of User types and the features and functions of the Realm.Security Platform and instructions regarding the use of the Realm.Security Platform and Integrations.
“Realm.Security Platform Analytics” means anonymized information, data, statistics, metadata, inferences, interrelationships, and/or associations generated or derived from the use of the Realm.Security Platform and/or Realm.Security Technology, expressly excluding Customer Data, and which is used by Realm.Security to provide and improve the Realm.Security Platform and to improve the Realm.Security Technology.
“Realm.Security Technology” means the computer software, computer code, scripts, neural networks, machine learning, artificial intelligence, application programming interfaces, methodologies, processes, templates, reports, workflows, diagrams, tools, algorithms, formulas, user interfaces, know-how, trade secrets, techniques, designs, inventions, APIs, API Specifications, Integrations, third-party services and other tangible or intangible technical material, information and works of authorship underlying or otherwise used to make available the Realm.Security Platform, including, without limitation, all upgrades, enhancements, modifications, additions and improvements thereto and all derivative works thereof, and Intellectual Property Rights therein and thereto.
“Subscription Term” means the subscription term set forth in the Order Form during which Customer shall have the right to access and use the Realm.Security Platform.
“Updates” mean all upgrades, enhancements, improvements, maintenance releases, additions, and modifications of the Realm.Security Platform and/or Integrations made generally commercially available by Realm.Security to its customers as part of the Realm.Security Platform and/or Integrations, as applicable.
“User” means an individual (i) authorized by Customer to use the Realm.Security Platform, (ii) for which Customer has purchased a subscription and paid the applicable fees, if any and (iii) who has been assigned Access Credentials. “Users” may include, for example, employees, independent contractors, and consultants Customer (“Customer Personnel”). Users may not include third parties who are not Customer Personnel and may not include competitors of Realm.Security.
Realm.Security, Inc.
Terms of Service
Version 1.0 10.1.2024
