CLOUDEASSURANCE™ and ALERTAPP!, BLACKCLOUDRX™ MOBILE APPLICATION LICENSE AGREEMENT
This License Agreement, or Terms of Service (“Agreement”) is entered into as of the Effective Date between eFortresses, Inc., a Delaware corporation (“eFortresses”), having its principal place of business at 3340 Peachtree Road, NE, Suite 1800, Atlanta, Georgia 30326 and Licensee.
DEFINITIONS. The following definitions are applicable to this AGREEMENT:
1) “COMPLIANCE” shall mean information security and regulatory compliance
(2) “SOFTWARE” shall mean the CloudeAssurance SaaS solution accessed via internet plus any questionnaires used as part of the assessment process
(3) “CLOUDEASSURANCE” shall mean proprietary software copyrighted and owned by eFortresses
(4) “SaaS” Software-as-a-Service shall mean a web application accessed via the Internet to provide services, in this case, security and compliance assessments and education.
(4) “MOBILE APPLICATION” shall mean the CloudeAssurance mobile software application for individual consumers’ personal use. The Mobile Application accesses CloudeAssurance databases.
(5) “SOFTWARE PRODUCTS” as used in this Agreement shall mean both the CloudeAssurance SaaS solution (“SOFTWARE”) and the consumer mobile software application (“MOBILE APPLICATION”) and is used for convenience and clarity for those Agreement terms that apply to both SOFTWARE and MOBILE APPLICATION.
LICENSE. Subject to the terms and conditions of this Agreement, eFortresses grants to Licensee a personal, limited, non-exclusive and non-transferable license to use eFortresses’s:
- CloudeAssurance™ Software-as-a-Service (SaaS) (“Software”) a cloud based application, to assess information owned by Licensee’s employees, service providers and partners for Security and Compliance scoring; OR
- AlertApp! Mobile Application (“Mobile Application”), a consumer mobile application used by the Licensee to access or monitor real-time ratings, security breaches and class action lawsuits related to various cloud service providers; OR
- BlackCloudRx™ Mobile Application (“Mobile Application”), a consumer mobile application used by the Licensee to access or monitor real-time ratings, security breaches and class action lawsuits related to various cloud service providers
Collectively, for purposes of this Agreement, the Software and Mobile Application are “Software Products”. This Agreement is effective as of the first date of login for Software Licensees and first date of installation for Mobile Application Licensees (“Effective Date”).
BY LOGGING INTO THE SOFTWARE OR DOWNLOADING AND INSTALLING THE MOBILE APP, LICENSEE CONSENTS TO BE BOUND BY THIS LICENSE AGREEMENT AND ALL TERMS AND CONDITIONS HEREIN.
a. SOFTWARE. Licensee agrees to use the Software only in the ordinary course of providing Security and Compliance scoring for Licensee’s use. Except as set forth herein, under no circumstances will Licensee use the software for any uses that have not been licensed. Use of the Software is limited to a maximum number of authorized licenses, as defined in the License Fees section of a formal quotation. If Licensee desires to increase the number of authorized users or increase the number of assessments it can undertake using the Software, Licensee must purchase additional licenses from eFortresses. Licensee acknowledges that the Software is configured in such a manner that Licensee may use the Software only by obtaining an enabling access code from eFortresses. Each access code is a company-specific, user-name, company-name and password combination, which enables the Software to be used to assess the designated corporate information for Security and Compliance scoring. Each access code will be valid for a period as stated in a formal quotation. eFortresses reserves the right to withhold login access if Licensee has not paid required license fees hereunder. Licensee consents to the collection, use, sharing and transfer of personally identifiable information as described in eFortresses’ Privacy Statement.
b. MOBILE APPLICATION. Use of the Mobile Application is limited to Licensee’s individual personal use and not for commercial purposes.
RESTRICTIONS ON USE. By virtue of this Agreement, Licensee acquires only the right to access and use the Software Products and does not acquire any rights of ownership. Except for the rights and licenses as expressly provided above, all rights, title and interest in the Software Products, including all corrections, enhancements and modifications thereof, are reserved by eFortresses. The Software may be used only by Licensee in the ordinary course of providing Security and Compliance assessments. The Mobile Application may only be used by Licensee for personal use to assess ratings for cloud service providers. Licensee may not make copies of the Software Products and may not allow non-Licensed third parties to use said Software. The Software may not be used for commercial timesharing, service bureau or other rental or sharing arrangements. Licensee agrees not to reverse engineer, disassemble or decompile the Software Products or any part thereof. Licensee agrees not to remove the copyright, trade secret or other proprietary protection legends or notices which appear on or in the Software Products.
SUPPORT SERVICES. Provided that Licensee has paid all fees, eFortresses will provide support services for the Software in accordance with eFortresses’s standard Service Level Agreement for Support. As part of such support, Licensee shall be entitled to access all new releases of the Software that are made available without additional charge. eFortresses reserves the right to modify its standard Service Level Agreement for Support from time to time. Licensee or its designated employee may contact eFortresses regarding Software support.
eFortresses does not warrant that the Software Products will meet Licensee’s specific requirements, that operation of the Software will be uninterrupted or error-free, that all defects and errors in the Software will be corrected, or that the Software will meet any particular criteria of performance or quality. eFortresses shall have no responsibility for problems in the Software Products that are caused by alterations or modifications to the Software by anyone other than eFortresses or that arise out of the malfunction of third party products, or for delays or interruptions in the delivery, installation or operation of the Software. The provisions of this paragraph allocate the risks under this Agreement between eFortresses and Licensee. eFortresses’s pricing reflects this allocation of risk and the limitation of liability specified herein.
SOFTWARE PRODUCT MODIFICATIONS. All feedback and suggestions regarding performance and functionality of the Software Products, any resulting refinements, modifications, improvements, designs, plans and specifications which are made to the Software Products by eFortresses, and all copyrights, patent rights and other intellectual property rights with respect to the foregoing, shall be the sole and exclusive property of eFortresses.
INSTALLATION AND TRAINING (SOFTWARE ONLY). Upon payment of the initial license fee for the Software, Licensee or its designated employee shall be entitled to attend eFortresses’s basic training course for the Software at eFortresses’s facilities. At Licensee’s reasonable request, eFortresses agrees to provide remote or on-site assistance in the use of the Software and advanced training courses for Licensee or its designated employee. All of such services shall be provided at eFortresses’ standard published rates as in effect from time to time.
CONFIDENTIALITY (SOFTWARE ONLY). Licensee acknowledges that the Software has substantial monetary value and embodies valuable trade secrets of eFortresses and that the Software bears a copyright legend, which in no way reduces the trade secret nature of the Software. Licensee agrees to exercise due care to prevent unauthorized use or disclosure of the Software, using the same safeguards afforded its own trade secrets and confidential information. The foregoing covenant shall not apply to any information in the public domain, information already in the possession of Licensee, information obtained from other sources without obligations of confidentiality, information independently developed or information that ceases to be a trade secret through no fault of Licensee.
REFERENCEABILITY (SOFTWARE ONLY). Licensee acknowledges that eFortresses relies from time-to-time on customer references, case studies, company listings, press releases and other public relations activities to facilitate its sales and marketing process. Licensee agrees 1) to be listed as an eFortresses customer on eFortresses’s website, 2) to be listed in a press release from eFortresses as a customer, 3) to participate in a case study of Licensee’s use of the Software, with prior approval from Licensee which shall not be unreasonably withheld, and 4) to speak with other prospective eFortresses customers from time-to-time about Licensee’s use of the Software (provided that eFortresses contacts Licensee and receives advance permission, which shall not be unreasonably withheld, on a case-by-case basis).
EXPENSES (SOFTWARE ONLY). With respect to any installation, training or other services provided by eFortresses, Licensee agrees to reimburse eFortresses for its reasonable actual travel and out-of-pocket expenses incurred, plus an administrative fee of fifteen percent (15%) of such amount.
DEVICE SETTINGS AND UNINSTALL PROCEDURES. (MOBILE APPLICATION ONLY) As part of the installation process of the Mobile Application, Licensee may change its mobile device settings. By installing the Mobile Application, Licensee agrees it has approved such changes and understands it can reconfigure such settings at any time. Such changes may include allowing software updates of the Mobile Application once a new version is released and the ability to send notifications. To uninstall the Application, Licensee understands the standard uninstall procedures offered by the mobile device’s operating system.
NOTICE REGARDING APPLE (MOBILE APPLICATION ONLY). Licensee acknowledges that this Agreement is between Licensee and eFortresses only, not with Apple, and Apple is not responsible for the Application and the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application. In the event of any failure of the Application to conform to any applicable warranty, then Licensee may notify Apple and Apple will refund the purchase price for the relevant Application to Licensee; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Application. Apple is not responsible for addressing any claims by Licensee or any third party relating to the Application or Licensee’s possession and/or use of the Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that Licensee’s possession and use of the Application infringes that third party’s intellectual property rights. Licensee agrees to comply with any applicable third party terms, when using the Application. Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and upon Licensee’s acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against Licensee as a third party beneficiary of this Agreement. Licensee hereby represents and warrants that (i) Licensee is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) Licensee are not listed on any U.S. Government list of prohibited or restricted parties.
NOTICE REGARDING GOOGLE (MOBILE APPLICATION ONLY). Licensee acknowledges that this Agreement is between Licensee and eFortresses only, not with Google, and Google is not responsible for the Application and the content thereof. Google has no obligation whatsoever to furnish any maintenance and support services with respect to the Application. In the event of any failure of the Application to conform to any applicable warranty, then Licensee may notify Google and Google will refund the purchase price for the relevant Application to Licensee; and, to the maximum extent permitted by applicable law, Google has no other warranty obligation whatsoever with respect to the Application. Google is not responsible for addressing any claims by Licensee or any third party relating to the Application or Licensee’s possession and/or use of the Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Google is not responsible for the investigation, defense, settlement and discharge of any third party claim that Licensee’s possession and use of the Application infringes that third party’s intellectual property rights. Licensee agrees to comply with any applicable third party terms, when using the Application. Google, and Google’s subsidiaries, are third party beneficiaries of this Agreement, and upon Licensee’s acceptance of this Agreement, Google will have the right (and will be deemed to have accepted the right) to enforce this Agreement against Licensee as a third party beneficiary of this Agreement. Licensee hereby represents and warrants that (i) Licensee is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) Licensee are not listed on any U.S. Government list of prohibited or restricted parties.
a. Software. eFortresses will invoice Licensee for Software license fees, as described in a formal quotation. Unless otherwise agreed by eFortresses, all fees are payable in advance. eFortresses’s license fees are based on Licensee maintaining a continuous license for the Software. Reinstatement of the license will be subject to eFortresses’s then-current policies and applicable fees regarding reinstatement. Payment of all fees and expenses owed to eFortresses shall be due upon receipt of eFortresses’s invoice. Any invoices not paid within thirty (30) days will bear interest from the due date at the rate of one and one-half percent (1½%) per month or the highest rate permitted by law, whichever is less. Fees and prices quoted by eFortresses do not include taxes, shipping or handling. If eFortresses is required to pay or collect sales, use, property, value-added, duty or other similar federal, country, state or local taxes based on the licenses granted or the services to be provided pursuant to this Agreement, then such taxes shall be billed to and paid by Licensee. eFortresses’s prices are subject to change without notice.
b. Mobile Application. Upon download of the Mobile Application, but prior to the activation of the AlertApp! and BlackCloudRx™ Services, Licensee shall provide payment for use of the Mobile Application via the App’s integrated payment card billing function. Licensee acknowledges that access to the Mobile Application functionality shall not be given until payment is processed. Licensee acknowledges that eFortresses contracts with a third party for all payment services and eFortresses does not collect, store, or share Licensee’s payment card information. Licensee acknowledges eFortresses has no access to Licensee’s payment card information in the possession of the contracted third party.
LIMITED WARRANTY. eFortresses warrants to Licensee that the Software Products, as provided by eFortresses, will conform in all material respects with eFortresses’s published documentation (includes online publications) for the Software Products in effect at the time of use. As Licensee’s exclusive remedy of any such material nonconformity, eFortresses agrees to take commercially reasonable measures to determine the cause of any material nonconformity and provide Licensee with a correction thereof or, at eFortresses’s discretion, a suitable substitute for the Software Products, at no further cost to Licensee, or a refund pro-rated for the unused period as stated in a formal quotation, however, that Licensee must report any such material nonconformity to eFortresses in writing promptly via e-mail to products@eFortresses.com. THIS PARAGRAPH STATES THE ENTIRE EXCLUSIVE REMEDY OF eFortresses FOR BREACH OF ITS LIMITED WARRANTY FOR THE SOFTWARE PRODUCTS.
DISCLAIMER. THE LIMITED WARRANTY SET FORTH ABOVE IS THE ONLY WARRANTY PROVIDED BY eFortresses. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, eFortresses DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, COMPATIBILITY, QUIET POSSESSION, SECURITY, OR ACCURACY, AND ALL SOFTWARE AND SERVICES PROVIDED UNDER THIS AGREEMENT ARE FURNISHED — “AS IS” AND WITH ALL FAULTS.
TERM AND TERMINATION (SOFTWARE ONLY). The initial term of this Agreement shall commence on the Effective Date and, unless earlier terminated as provided herein, shall continue for a period of one (1) year. Thereafter, this Agreement shall be automatically renewed for successive one (1) year periods unless either party gives written notice of termination at least sixty (60) days prior to the expiration of the initial term or any renewal term. Notwithstanding the foregoing, either party will have the right to terminate this Agreement and the license granted hereunder if: (i) the other party breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of the same, except in the case of failure to pay fees, which must be cured within ten (10) days after receipt of written notice from eFortresses; (ii) the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (iii) the other party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing. Upon termination, the license to use the Software shall expire, and Licensee shall immediately refrain from using any enabling access code provided by eFortresses. The provisions of the paragraphs entitled “Disclaimer,” “Confidentiality,” “Payment,” “Indemnification” and “Disclaimer of Damages” shall survive termination of this Agreement.
TERM AND TERMINATION (MOBILE APPLICATION ONLY). This Agreement will remain in effect until terminated. The Agreement, and Licensee’s rights and licenses hereunder, will terminate immediately upon any breach of the Agreement by Licensee. Licensee may terminate the Agreement by uninstalling and discontinuing Licensee’s use of the Application. eFortresses may terminate support of the Mobile Application and/or this Agreement, or limit or terminate your access to the Mobile Application at any time for any reason. Sections entitled “Term and Termination,” “Disclaimer” and “Indemnification” shall survive any termination of this Agreement.
TAXES. All taxes (if any) pertaining to the use of Software Products (except those taxes measured by the income of eFortresses) are the responsibilities of the Licensee.
INDEMNIFICATION BY eFortresses. eFortresses will defend, at its expense, any action brought against Licensee to the extent that it is based on a claim that the Software infringes a United States copyright or patent of which eFortresses has actual knowledge, and, subject to the limitation of liability stated in this Paragraph, eFortresses will pay any costs, damages, and attorney fees finally awarded against Licensee in such action which are attributable to such claim, provided that Licensee notifies eFortresses promptly in writing of the claim and permits eFortresses to participate fully in the defense and/or agrees to any settlement of such claim. eFortresses shall not be liable for any costs or expenses incurred without eFortresses’s written authorization. If the Software becomes, or in eFortresses’s opinion is likely to become, the subject of such claim of infringement, eFortresses may, at its option and expense, either procure rights for Licensee to continue using the Software or replace or modify the same so that it performs substantially similar functions but does not infringe. Upon failure of the foregoing provisions of this Paragraph, eFortresses will refund all license fees paid by Licensee during the preceding twelve (12) months relating to the Software. THIS PARAGRAPH STATES THE ENTIRE LIABILITY OF eFortresses FOR INFRINGEMENT BY ANY SOFTWARE PROVIDED TO CUSTOMER.
INDEMNIFICATION BY LICENSEE. Licensee will defend, at its expense, any action brought by any third party against eFortresses to the extent that it is based on the unauthorized use of the Software by Licensee or its personnel or anyone else who obtains access to the Software through Licensees, and Licensee will pay any costs, damages, and attorney fees finally awarded against eFortresses in such action, provided that eFortresses notifies Licensee promptly in writing of the claim and permits Licensee to participate fully in the defense and/or agrees to any settlement of such claim.
DISCLAIMER OF DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL eFortresses BE LIABLE TO LICENSEE OR ANY THIRD PARTY, UNDER ANY THEORY OF LIABILITY, HOWEVER ARISING, FOR ANY COSTS OF COVER OR FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING ANY LOSS OF USE OF COMPUTER SYSTEMS, INTERRUPTION OF BUSINESS, LOSS OF BUSINESS PROFITS, AND DAMAGE TO OR LOSS OF DATA) ARISING OUT OF THIS AGREEMENT, THE PROVISION OR USE OF THE SOFTWARE OR THE PROVISION OR USE OF ANY DATA CREATED BY OR ACCESSED THROUGH THE SOFTWARE, EVEN IF eFortresses HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LICENSEE ACKNOWLEDGES THAT THE SOFTWARE IS DESIGNED TO IDENTIFY SECURITY AND COMPLIANCE WEAKNESSES IN A COMPANY AND NOT AS A SECURITY AND COMPLIANCE ASSURANCE PRODUCT. LICENSEE ASSUMES ALL RISKS ASSOCIATED WITH THE OPERATION OF THE SOFTWARE.
U.S. GOVERNMENT RESTRICTIVE RIGHTS. Use, duplication and disclosure by the U. S. government, including any agency thereof, is subject to the restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software–Restricted Rights clause at FAR 52.227.19, as applicable. Contractor/Manufacturer is eFortresses, 3340 Peachtree Road, NE, Suite 1800, Atlanta, Georgia 30326.
(A) The waiver of one breach hereunder shall not constitute the waiver of any other or subsequent breach.
(B) All notices under this Agreement may be given by hand delivery, by overnight delivery, by first class mail, or by e-mail or facsimile (with hardcopy mailed the same day by first class mail) to the party at the address set forth beneath such party’s signature, or to such other address as the party to receive notice so designates by written notice to the other. Notice shall be deemed to be given upon delivery, if delivered by hand, on the day promised for delivery, if sent by overnight courier, three (3) days after posting, if sent by first class mail, or upon transmittal, if sent by e-mail or facsimile.
(C) No amendments, modifications or supplements to this Agreement shall be binding unless in writing and signed by both parties.
(D) No action, regardless of form arising out of this Agreement may be brought by either party more than one (1) year after the cause of action or action arose except an action for moneys due hereunder.
(E) Licensee understands that from time to time eFortresses may engage one or more third parties to provide marketing and/or technical assistance and that such third parties are independent of eFortresses and have no express or implied authority to bind eFortresses, nor is eFortresses liable for any acts of such third parties which are outside the scope of their appointment.
(F) If any provision of this Agreement is held to be unenforceable, such decision shall not affect the validity or enforceability of the remaining provisions.
(G) This Agreement may be executed in two or more identical copies, each of which shall be an original.
(H) All monetary amounts shall be paid in United States dollars, payable in ready funds through a United States bank.
(I) Licensee agrees that this Agreement is the complete and exclusive statement of the agreement between the parties, which supersedes all prior and or concurrent proposals and understandings, whether oral or written, and all other communications between the parties relating to the subject matter of this Agreement.
(J) In the event Licensee issues a purchase order or other instrument covering the subject matter of this Agreement, it is understood and agreed that such purchase order is for Licensee ‘s internal use and shall not affect this Agreement nor otherwise constitute a part of the agreement among the parties.
(K) Licensee acknowledges and agrees that a breach by Licensee of any of the terms of this Agreement may result in irrevocable harm to eFortresses and that the remedies at law for such breach may not adequately compensate eFortresses for damages suffered. Licensee agrees that in the event of such breach, eFortresses shall be entitled to injunctive relief or such other equitable remedies as a court of competent jurisdiction may deem just and proper.
(L) If the Software is to be used outside the United States, Licensee agrees to comply fully with the United States Export Administration Act and otherwise ensure that the Software is not exported to any country or used by any person in violation of United States laws and regulations.
(M) Licensee agrees that it shall not sell, assign, or transfer this Agreement or any of Licensee’s rights, duties, or obligations hereunder without eFortresses’s prior written consent.
© eFortresses, Inc. 2015