We are so excited for you to become an official customer of Dark Cubed! If you are here, you should already have been working with someone from Dark Cubed to have selected a pricing plan that fits your needs. Please review the terms and conditions below and then complete the form and we should be all set. Contact us at firstname.lastname@example.org if you have any question.
TERMS AND CONDITIONS
1. SUBSCRIPTION SERVICES AND SUPPORT
Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services. For purposes of this Agreement, the term “Services” shall mean (i) the Implementation Services, (ii) the Support Services, (iii) any services or activities specified or identified in any subsequent or related SOW or other exhibit incorporated hereto by reference therein to this, and (iv) all ancillary or related services or activities reasonably necessary in order to fulfill Company’s obligations under this Agreement. As part of the setup process, Customer will identify installation location, configuration, and security requirements. Company reserves the right, in its sole discretion, to refuse installation if it deems Customer’s existing or proposed location, configuration, architecture or security requirements to be insecure, insufficient or incompatible with the Dark Cubed hardware or software requirements.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1. Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.
2.2. Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227‑7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
2.3. Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s standard published policies then in effect and all applicable laws and regulations. Customer hereby agrees to indemnify and hold Company harmless against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action arising from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may, in its sole discretion and with or without notice, prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees to: (i) take reasonable precautions to protect such Proprietary Information, and (ii) not use the Disclosing Party’s Proprietary Information for its own internal or business purposes (other than in performing or receiving the Services or as otherwise permitted herein), and (iii) not divulge Disclosing Party’s Proprietary Information to any third person. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
3.2. Customer shall own all right, title and interest in and to the Customer Data. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or Support Services, and (c) all intellectual property rights related to, underlying or developed in connection with any of the foregoing.
3.3. Notwithstanding anything to the contrary herein, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Customer expressly grants Company the right to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
4. PAYMENT OF FEES
4.1. Customer will pay Company the then applicable fees described in the Order Form for the Services (including both the Implementation Services and Support Services) Implementation Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the scope of Services contemplated by this Agreement (including any SOW or other exhibit attached hereto or incorporated hereto by reference therein) or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to modify the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then-current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.
4.2. Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company no more than thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection, and Company may immediately terminate this Agreement, and may cease to provide all Services in connection herewith, in the event Customer fails to render payment in full when amounts are due. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.
5. TERM AND TERMINATION
5.1. Subject to earlier termination as provided below or in 4.2 above, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
5.2. In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
6. WARRANTY AND DISCLAIMER
Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. NOTWITHSTANDING THE FOREGOING, Company MAKES NO WARRANTIES that the Services will be uninterrupted or error-free, nor DOES COMPANY MAKE ANY WARRANTY IN REGARDS TO PERFORMANCE OR RESULTS OF THE SERVICES CONTEMPLATED HEREUNDER. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SUPPORT SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS,” AND COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7. LIMITATION OF LIABILITY
IN NO EVENT SHALL THE COMPANY (NOR ANY EMPLOYEE, CONTRACTOR, SUPPLIER OR VENDOR THEREOF) BE LIABLE TO THE CUSTOMER FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, RELIANCE OR INCIDENTAL DAMAGES THAT THE CUSTOMER MAY INCUR OR EXPERIENCE ARISING OUT OF THE AGREEMENT, THE SERVICES, OR ANY ACT OR OMISSION OF COMPANY IN CONNECTION WITH THE AGREEMENT, EVEN IF CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION APPLIES REGARDLESS OF THE CAUSE OF ACTION IN WHICH SUCH DAMAGES ARE SOUGHT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE
In addition to any other provision herein regarding indemnity of either party to this Agreement, Customer agrees to indemnify, defend and hold harmless the Company (including, without limitation, the Company’s officers and directors, and its employees and contractors performing some or all of the Services) from and against any and all third party losses arising out of or in connection with any claims: (i) of infringement or misappropriation of any patent, copyright, trademark, trade secret, or other proprietary right alleged to have been incurred because of any system, data, intellectual property, program, equipment, Software or other resources provided by Customer in connection with implementation or operation of the Services; (ii) for Customer’s failure to comply with any laws applicable thereto; (iii) for any action or omission of Customer that constitutes bad faith, gross negligence or willful misconduct, including, without limitation, fraud, embezzlement, infringement, misuse or disclosure of Company’s Proprietary Information, theft or wrongful alteration of data or documents.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sub licensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. All disputes, differences or claims arising out of or in connection with the this Agreement (including, without limitation, with respect to this Agreement’s existence, validity, construction, performance, termination or alleged violation) which is not resolved informally as between the parties hereto shall be resolved by binding arbitration in accordance with the American Arbitration Association’s Commercial Arbitration Rules for the time being in force, which rules are deemed to be incorporated by reference in this Section 9. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Virginia without regard to its conflict of laws provisions. The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Customer otherwise agrees to reasonably cooperate with Company to serve as a reference account upon request.