R9B Professional Services Terms and Conditions

These R9B Professional Services Terms (“Professional Services Terms”) are part of the Agreement between You and R9B. For purposes of these Professional Services Terms, “R9B” means root9B, LLC and/or its parent or subsidiaries, and the terms “You”, “Your” or “Customer” refer to the Services entitlement owner/contract owner named in the Statement of Work. You and R9B may each also be referred to as a “Party” and together, the “Parties.” The “Agreement” consists of, collectively, these Professional Services Terms, plus the terms of the applicable Statement of Work including the relevant Service Description, if applicable. Capitalized terms not defined in these Professional Services Terms have the same meaning as defined in the Statement of Work.

  • 1. Definitions. Capitalized terms shall have the meanings set forth below. Defined terms stated in the singular may be used in the plural, and vice versa.
    • (a) “Affiliates” means, any present or future entity that directly or indirectly Controls, or is Controlled by, or is under common Control with either Party, where “Control” means power to direct or cause the direction of the management and policies of an entity whether through the ownership of voting securities, by contract, or otherwise.
    • (b) “Service” means professional services sold to Customer to be performed by R9B, including any Service Components. Services may contain certain deliverables (“Deliverables”) to be provided by R9B as described in the applicable Statement of Work, Services Order or Services Description.
    • (c) “Service Component” means certain enabling software, hardware or associated documentation which may be separately provided by R9B as part of the Service.
    • (d) “Service Description” means R9B’s standard, then-current description of a Service’s features.
    • (e) “Statement of Work” means the Parties’ mutually-agreed commitment for Services under this Agreement. An order may take the form of a written addendum, exhibit or Statement of Work (“SOW”) signed by the Parties.
    • (f) “Term” means the applicable effective period of Services under a Statement of Work.
  • 2. Statement of Work. During the Term, R9B and Customer may agree upon a SOW for Services that may include Deliverables to be provided by R9B, fees, duration and renewal of the Services, and other responsibilities undertaken by Customer and R9B. Certain Services may also require Service Components.
  • 3. Term; Termination. The Term of this Agreement, which may include an initial set-up period, will be as set forth in the applicable SOW, and may be subject to automatic renewal as further described in the SOW. This Agreement may be terminated at any time by either party: (i) upon written notice if the other party breaches any material term of this Agreement, and such breach remains uncorrected for 30 days following written notice; or (ii) immediately, if the other party becomes the subject of a voluntary or involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or similar action for the benefit of creditors as a consequence of debt, or if the other party otherwise ceases or threatens to cease business. Upon termination of a SOW, all other SOW’s will continue in full force and effect. Subject to any termination conditions and/or payments specified in the applicable SOW, upon termination of this Agreement, R9B will be entitled to be paid for all work performed, including fees and expenses, up to the effective date of termination.
  • 4. Limitations of Liability.
    • (a) EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES. IN NO EVENT SHALL EITHER R9B OR CUSTOMER BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS (EXCLUDING AMOUNTS PAID AND PAYABLE HEREUNDER), LOST BUSINESS OPPORTUNITIES, LOSS OF USE OR EQUIPMENT DOWN TIME, AND LOSS OF OR CORRUPTION TO DATA ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH DAMAGES ARE SOUGHT, AND EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS.
    • (b) DIRECT DAMAGES. R9B’S TOTAL LIABILITY TO CUSTOMER FOR ANY AND ALL LIABILITIES, CLAIMS OR DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, HOWSOEVER CAUSED AND REGARDLESS OF THE LEGAL THEORY ASSERTED, INCLUDING BREACH OF CONTRACT OR WARRANTY, TORT, STRICT LIABILITY, STATUTORY LIABILITY OR OTHERWISE, SHALL NOT, IN THE AGGREGATE, EXCEED THE AMOUNT ACTUALLY PAID TO R9B UNDER THE SPECIFIC SOW FROM WHICH THE CLAIM ORIGINATED. PST-R9B-4/18
    • (c) Claims. Any claim by Customer against R9B relating to this Agreement must be made in writing and presented to R9B within 30 days after the earlier of: (i) the date on which Customer receives the deliverable(s) at issue; or (ii) the date on which R9B completes performance of the Services specified in the specific SOW from which the claim originated.
    • (d) Applicability. This Section 4 (Limitations of Liability) shall apply notwithstanding any failure of essential purpose of any limited remedy.
    • (e) Other Limitations. R9B is not responsible for any delay in performing or failure to perform Services caused by Customer’s failure to timely provide access, licenses or approvals to the extent required by this Agreement or a Statement of Work, or Customer’s failure to perform Customer’s responsibilities under the Agreement.
  • 5. Fees; Payment; Taxes.
    • (a) Customer will pay fees (“Fees”) to R9B for the Services set forth in the SOW, including, if applicable, reasonable travel and/or lodging expenses incurred in the course of performance of the Services. Fees with respect to the renewal of Services may be increased in accordance with the SOW. Except for Service Components, payment for Services hereunder is not contingent upon the delivery or performance of any R9B software license or hardware. Customer will pay R9B invoiced amounts within thirty (30) days of the invoice date (“Due Date”). If any sum payable to R9B is not paid by the Due Date, R9B reserves the right, without prejudice to any other remedy, to (i) charge interest on such overdue sum on a day to day basis from the due date until paid in full the lesser of one percent (1%) per month or the maximum rate permitted by applicable law; and/or (ii) suspend the provision of the Services upon five (5) days prior notice, until paid in full. All Fees paid or payable for Services are non-cancellable and non- refundable.
    • (b) Customer is responsible for all taxes, customs duties, import fees or other similar charges, and all other mandatory payments imposed by government entities with respect to the Services or other items provided under this Agreement, excluding tax imposed on R9B’s net income and withholding taxes (subject to the condition of providing withholding tax payment receipts, as set forth below). R9B will bill applicable taxes as a separate item on Customer's invoice and will not include them in the Fees. If a transaction is exempt from tax, Customer will provide R9B with a valid exemption certificate or other evidence of such exemption in a form acceptable to R9B. If Customer is required by law to withhold any tax from the payment, Customer will provide to R9B original or certified copies of all tax payment receipts or other evidence of payment of taxes by Customer with respect to transactions under this Agreement. If Customer fails to provide R9B with such tax payment receipts, if applicable, then Customer will reimburse R9B for any fines, penalties, taxes and other governmental agency charges resulting from such failure.
    • (c) Unless stated otherwise in a SOW, R9B shall provide an invoice to Customer for Services performed and reimbursable costs and expenses incurred by R9B. (d) All amounts owed hereunder shall be paid in United States Dollars unless otherwise noted within the SOW.
  • 6. Confidentiality.
    • (a) Confidential Information means all information that is disclosed in any tangible form and is clearly marked as proprietary or confidential at the time of disclosure, or information that is disclosed orally or visually, designated proprietary or confidential at time of disclosure, reduced to tangible form and clearly marked as Confidential Information within 30 days of the date of disclosure. This information includes, but is not limited to, business information, financial information, supply and service information, marketing information, personnel information, customer information, and other data that the respective Parties generally consider confidential. “Disclosing Party” means, with respect, to the disclosure of Confidential Information, the party disclosing such Confidential Information. “Receiving Party” means, with respect to the receipt of Confidential Information, the party receiving such information.
    • (b) During the term, it may be necessary for the Disclosing Party , or other persons or entities working with the Disclosing Party, to disclose certain information to the Receiving Party that the Disclosing Party considers proprietary and confidential (“Confidential Information”) or the Receiving Party may acquire or learn Confidential Information in the course of performing the Services. The terms of this section shall govern the exchange of Confidential Information between R9B, Customer, and any affiliate of either party, and in any meetings held for the purpose of exploring a potential business transaction between R9B, Customer or either Party’s affiliates.
    • (c) Confidential Information is being disclosed to the Receiving Party or may be acquired or learned by the Receiving Party solely for the purpose of R9B providing the Services to Customer. Accordingly, the Receiving Party shall maintain the Confidential Information by using the same degree of care, but not less than a reasonable degree of care, as Customer uses to protect from unauthorized disclosure of its own proprietary or confidential information of a like nature. The Customer shall not disclose the Confidential Information to any Third Party, or use the Confidential Information for its benefit of the benefit of any Third Party, without the prior written consent of the Disclosing Party. The Receiving Party shall use the Confidential Information only as is necessary to perform the Services and/or fulfill its obligations pursuant to this Agreement, and shall limit any disclosure to its directors, officers, employees, agents and permitted subcontractors (“Representatives”) on a need-to-know basis for purposes of performing the Services and/or fulfilling its obligations under this Agreement. The Receiving Party shall cause its Representatives to comply with the confidentiality obligations set forth in this section and shall be liable for any violation of the confidentiality obligations set forth in this section by its Representatives.
    • (d) Confidential Information does not include information which (i) is in the Receiving Party’s possession, or known to it, prior to disclosure, (ii) is or becomes public knowledge or available on an unrestricted basis to third parties without breach of this Agreement, (iii) is or becomes furnished to the U.S. Government with “unlimited” rights, or (iv) is compelled by judicial proceedings after either Party diligently attempts to avoid such disclosure and reasonably attempts to ensure that such disclosure will receive confidential treatment.
    • (e) All Confidential Information shall remain the property of the originating Party. Each Party warrants that it has the right to make disclosures under this Agreement. Neither this Agreement nor the disclosure of Confidential Information hereunder shall be construed as granting any right or license, express or implied, under any patent, invention, trade secret, copyright, or other intellectual property right now or hereafter owned or controlled by either Party.
  • 7. Ownership; Reservation of Rights.
    • (a) Customer Ownership. Unless otherwise specified in the SOW, as between the parties, Customer retains ownership of Materials furnished by Customer. “Materials” means information, data, software, hardware, systems and other property.
    • (b) R9B Ownership. As between the parties, R9B owns all right, title, and interest in the Services and any Materials provided by R9B, and all Intellectual Property Rights therein and thereto. As between the parties, all right, title and interest in and to any modifications, translations, or derivatives of the Services and Materials remain exclusively with R9B, including all Intellectual Property Rights therein and thereto. “Intellectual Property Rights” means: (i) rights associated with works of authorship, including copyrights, moral rights, and mask work rights; (ii) trademark and trade name rights and similar rights; (iii) trade secret rights; (iv) patent and industrial property rights; v) other proprietary rights in intellectual property; and (vi) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the rights referred to in clauses (i) through (v) of this sentence.
    • (c) Hardware. R9B shall retain title to any loaned hardware, and Customer shall keep such hardware free of all security interests, liens and other encumbrances. Customer shall affix to and maintain on the hardware, in a conspicuous location, a notice stating that such hardware is owned by R9B. Customer agrees to use the hardware only in accordance with instructions prescribed by R9B. Customer assumes the entire risk of loss, damage, theft, or destruction of the hardware while it is in the possession of Customer. Customer shall not, without R9B’s written consent, load any software onto the hardware or make any alterations, additions or improvements to the hardware. Customer shall not attempt to, and will not allow others to reverse engineer, decompile, disassemble or translate the Materials, or otherwise attempt to derive source code, trade secrets or know-how in or underlying any software or any portion thereof; interfere with, modify, disrupt or disable features or functionality of the Materials, including without limitation any such mechanism used to restrict or control the functionality, or defeat, avoid, bypass, remove, deactivate or otherwise circumvent any software protection or monitoring mechanisms of the Materials; sell, rent, lease, sublicense, distribute, redistribute, syndicate, create derivative works of, assign or otherwise transfer or provide access to, in whole or in part, the Materials to any third party; use the Materials for any illegal, unauthorized or other improper purpose.
    • (d) Reservation of Rights. Neither party grants any license to the other party other than the licenses expressly granted herein. No license is to be implied from any provision of this Agreement.
    • (e) Sale of Hardware; License of Software. From time to time, Customer may agree to purchase hardware or license software from R9B. Such transactions shall be governed by the terms and conditions in the applicable exhibits attached hereto, and such terms and conditions shall apply notwithstanding any terms and conditions in a purchase order.
  • 8. Representations and Warranties; Disclaimer.
    • (a) Each party represents and warrants that: it is duly organized or formed, validly existing and in good standing in its state or jurisdiction of organization or formation. It has all necessary power and authority to execute and deliver this Agreement and to perform its obligations under this Agreement. This Agreement constitutes a legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, receivership, reorganization or other similar applicable laws PST-R9B-4/18 affecting the enforcement of creditors’ rights generally and by general principles of equity. No consent, approval or authorization from any third party is required in connection with the negotiation, execution, delivery and performance of this Agreement. It will comply, to the best of its knowledge, with all laws applicable to its business in the performance of its obligations and exercise of its rights under this Agreement, including those applicable to privacy and data security.
    • (b) Representations and Warranties by R9B. R9B represents and warrants that the Services provided under this Agreement shall be performed with that degree of skill and judgment recognized as the standard for R9B’s industry. The exclusive remedy for any breach of the foregoing warranty shall be that R9B, at its own expense, and in response to written notice of a warranty claim by Customer within 30 days of the date on which R9B completes performance of the Services at issue, shall, at its own option, either (i) re-perform the Services to conform to this standard; or (ii) refund to Customer amounts paid for non-conforming Services.
    • (c) Representations and Warranties by Customer. Customer represents and warrants that it has the right to use, disclose, license, disseminate and grant access to the systems, software, information, specifications and data that it has provided access to or will provide access to R9B in order for R9B to perform the Services and prepare the deliverables, if any, identified in each SOW. Customer further represents and warrants that possession and use of such systems, software, information, specifications and data by R9B under the terms and conditions of this Agreement will not constitute an infringement or misappropriation of any patent, copyright, trade secret, or other intellectual property right or a violation of any privacy laws. It has implemented and maintains measures designed to prevent the introduction of Malicious Code into the other party’s software or systems, including firewall protections and regular virus scans, where “Malicious Code” means any “back door,” “drop dead device,” “time bomb,” “Trojan horse,” “virus,” “worm,” “spyware” or “adware” (as such terms are commonly understood in the software industry) or any other code designed or intended to have or be capable of performing or facilitating any of the following functions: (i) disrupting, disabling, harming or otherwise impeding in any manner the operation of, or providing unauthorized access to, a computer system or network or other device on which such code is stored or installed; or (ii) compromising the privacy or data security of a user or damaging or destroying any data or file without the user’s consent.
    • (d) DISCLAIMER. EXCEPT AS PROVIDED IN THIS SECTION 8, R9B MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO ANY SERVICES PROVIDED HEREUNDER.
  • 9. Indemnity.
    • (a) R9B will defend and indemnify and hold Customer harmless from any claim asserting that the Services or Deliverables infringe any intellectual property right of a third party. R9B’s obligations under this provision are subject to Customer’s doing the following: notifying R9B of the claim in writing, as soon as Customer learns of it; providing R9B all reasonable assistance and information to enable R9B to perform its duties under this Section; allowing R9B sole control of the defense and all related settlement negotiations; and not having compromised or settled such claim. Notwithstanding the foregoing, Customer may participate at Customer’s expense in the defense of any such claim with its own counsel, provided R9B retains sole control of the claim. Customer has the right to approve any settlement that affirmatively places on Customer an obligation that has a material adverse effect on Customer other than the obligations to cease using the affected Deliverables or to pay sums indemnified hereunder. Such approval will not be unreasonably withheld.
    • (b) In the event that any willful misconduct or grossly negligent act or omission of a Party or its employees during the performance of Services causes or results in the (i) loss, damage to or destruction of physical property of the other Party or third parties, and/or (ii) death or injury to any person, then such Party will indemnify, defend and hold the Party harmless from and against any and all resulting claims, damages, liabilities, costs and expenses (including reasonable attorney’s fees), subject to the Limitation of Liability herein.
  • 10. Governing Law; Export.
    • (a) This Agreement will be governed by and construed in accordance with the substantive laws of New York.
    • (b) The Services, Deliverables and Service Components, including documentation, may include controlled technology or technical data (collectively, “Controlled Technology”) that is subject to the U.S. Export Administration Regulations (EAR), and/or the International Traffic in Arms Regulations (ITAR), and diversion contrary to U.S. law is prohibited. Customer agrees to comply with all relevant laws including the U.S. EAR, ITAR, and the laws of any country from which Controlled Technology is exported. All Controlled Technology is prohibited for export or re- export to Cuba, North Korea, Iran, Syria and Sudan and to any country or its nationals subject to relevant embargo or sanction or to any entity or person for which an export license is required pursuant to any relevant restricted party PST-R9B-4/18 list, without first obtaining a license. Furthermore, Customer hereby agrees that it will not use or allow use of Controlled Technology in connection with chemical, biological, or nuclear weapons, or missiles, drones or space launch vehicles capable of delivering such weapons.
  • 11. Data Privacy. If R9B receives, has access to or processes personal information protected by privacy regulations from Customer, R9B may be subject to applicable laws restricting collection, use, disclosure, processing and free movement of personal data. Customer will provide guidelines to help R9B comply with the privacy regulations with respect to Customer’s business, but R9B, using its own legal advisors, will remain responsible for interpreting and complying with the privacy regulations with respect to R9B’s business. Unless otherwise expressly agreed in a SOW, R9B is not performing Customer’s regulatory or management obligations and is not responsible for determining the requirements of laws applicable to Customer's business, including those relating to Services that Customer acquires under this Agreement, or that R9B’s provision of or Customer's receipt of particular Services under this Agreement meets the requirements of such laws.
  • 12. System Access Agreement. R9B’s System Access Agreement is hereby incorporated by reference, and is available by request. The Customer shall review and comply with the System Access Agreement to enable the performance of contracted service(s).
  • 13. Miscellaneous.
    • (a) While on Customer's premises, R9B personnel will follow all reasonable instructions provided to R9B prior to the performance of the Services.
    • (b) R9B is an independent contractor and will not be deemed an employee or agent of Customer.
    • (c) Any subsequent modifications to this Agreement will be made in writing and duly signed by authorized representatives of both Parties or they will be void and of no effect. This Agreement is the complete and exclusive agreement between the Parties with respect to the subject matter hereof, and supersedes any previous or contemporaneous agreement, proposal, commitment, representation, or other communication whether oral or written between the Parties regarding such subject matter. This Agreement prevails over any conflicting or additional terms of any purchase order, ordering document, acknowledgement, confirmation or other document issued by Customer, even if signed and returned.
    • (d) R9B has the right to subcontract the performance of the Services to third parties, provided that R9B remains responsible for the contractual obligations set forth in this Agreement.
    • (e) All notices will be in writing and addressed to the receiving party’s current business contact, if known, and sent to the Party’s address as listed in the SOW, or as updated by either Party in writing. Notices shall be effective upon receipt and shall be deemed received as follows:
      • (i) if personally delivered by courier, when delivered, or
      • (ii) if mailed by first class mail, or the local equivalent, on the fifth business day after posting with the proper address.
    • (f) Customer may not assign the rights granted hereunder or this Agreement, in whole or in part and whether by operation of contract, law or otherwise, without R9B’s prior written consent. Such consent will not be unreasonably withheld or delayed.
    • (g) No person other than a Party to this Agreement will be entitled to enforce any term of it except as expressly provided herein.
    • (h) Each Party will be excused from performance, other than payment obligations, for any period during which, and to the extent that, it is prevented from performing any obligation or service, in whole or in part, due to unforeseen circumstances or to causes beyond such Party's reasonable control including but not limited to war, strike, riot, crime, acts of God, or shortages of resources.
    • (i) If any provision of this Agreement is found partly or wholly illegal or unenforceable, such provision will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions will remain in full force and effect. A waiver of any breach or default under this Agreement will not constitute a waiver of any other right for subsequent breach or default.
    • (j) Any term of this Agreement, which is intended to survive expiration or termination will survive, including, without limitation, confidentiality, restrictions on use of intellectual property, limitations on liability and disclaimers of warranties and damages, governing law, and Customer’s payment obligations accrued prior to termination.
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R9B Training Terms and Conditions

These Training Terms & Conditions (“Agreement”) between You (“Customer”) and root9B, LLC (“R9B”), collectively (“Party or Parties”), shall govern the purchase and delivery of R9B Training Services. Customer acknowledges that Customer has read and understands this Agreement and agrees to be bound by the terms and conditions hereof.

  • 1. Definitions. Capitalized terms shall have the meanings set forth below. Defined terms stated in the singular may be used in the plural, and vice versa.
    • (a) “Student” means, a registered participant for a specific training course or training related service.
    • (b) “Training Materials” means digital or print content required to complete a course, which may include, but is not limited to workbooks, data, concepts, exercises, and exams.
    • (c) “Course Description” means R9B’s standard, then-current description of a course’s features.
    • (d) “Services” means training course delivery or related services.
    • (e) “Equipment” means R9B provided computers, routers, and any other associated hardware.
    • (f) “Acceptance” shall be deemed to have occurred upon successful registration of Student with R9B.
    • (g) “Personal Data” shall include, but not be limited to, Student names and email addresses.
    • (h) "Online Training" means training delivered in a virtual environment.
    • (i) "Course Start Date" shall mean the first day of the training course.
    • (j) "Course End Date shall mean the last day of the training course.
  • 2. Training Description. Instructor led training is offered at R9B facilities, at a Customer site, at sites designated by R9B, or online. R9B shall conduct Services in close conformance with the Course Description, which are subject to change due to limitations or constraints including, but not limited to, technical capabilities and Customer’s needs.
  • 3. R9B’s Responsibilities.
    • (a) Provide training in a manner consistent with the technical and professional standards of the industry.
    • (b) Provide an instructor qualified to conduct the Services.
    • (c) Provide necessary Training Materials for Student.
    • (d) Confirm class approximately two weeks prior to the scheduled start date.
    • (e) Provide username and passwords for Online Training environments.
  • 4. Customer’s Responsibilities.
    • (a) Remit payment for Student(s) a minimum of two (2) weeks prior to course start date. Unpaid or unregistered Student(s) will not be permitted to view or participate in the training class.
    • (b) Provide R9B with a list of Personal Data a minimum of one (1) week prior to class start date. The Parties acknowledge that in connection with the Services, Customer and Student may provide or make available Personal Data to R9B. Student authorizes R9B to process such Personal Data: (i) for purposes related only to this Agreement; and/or (ii) as may otherwise be permitted under Applicable Data Protection Law.
    • (c) Confirm all registered Students meet any minimum prerequisites for the applicable training event as stated in the R9B training catalog.
    • (d) Coordinate and pay for all Student(s) travel arrangements. Customer agrees that R9B is not responsible for losses from nonrefundable travel arrangements in the event of course scheduling changes or cancellations.
    • (e) Ensure Student use of Training Materials provided by R9B complies with the terms of this Agreement.
    • (f) Assume full responsibility for Student attending training course(s) and complying with terms and conditions under this Agreement.
    • (g) Ensure Student does not use audio and/or video recording equipment within the classroom or virtual environment without prior written approval from authorized R9B representatives.
    • (h) For Customer site / mobile classes, (i) provide a secure, locked area for storage of R9B equipment between training sessions, (ii) assume responsibility for loss of, damage to, and/or theft of R9B equipment while in Customer’s possession, and (iii) warrant that it maintains sufficient business insurance coverage in accordance with the law and this Agreement.
  • 5. Download and Access to Online Training
    • (a) Access to Online Training is only available online via an internet connection. Chrome-based web browser such as Chrome, Chromium, Brave, etc. are recommended for access to R9B’s virtual resources.
    • (b) Students will be required to create a Zoom account and register for the Online Training webinar.
    • (c) Once registered and 7 days prior to the start of Online Training, Student will receive a notification, via email, providing username and password for access to the virtual environment, and a link to the virtual book.
    • (d) Access to Online Training will begin on the Course Start Date and shall be extended 60 days following the Course End Date.
    • (e) All support services for technical concerns are provided in the access notification sent via email.
  • 6. Indemnification. In the event that any breach of the terms and conditions of this Agreement by Student(s), willful misconduct, or grossly negligent act or omission of a Party or its employees during the performance of Services causes or results in the (i) loss, damage to or destruction of physical property of the other Party or third parties, (ii) death or injury to any person, then such Party will indemnify, defend and hold the Party harmless from and against any and all resulting claims, damages, liabilities, costs and expenses (including reasonable attorney’s fees), subject to the Limitation of Liability herein.
  • 7. Ownership; Reservation of Rights. This Agreement gives Student certain limited rights to use electronic and/or tangible versions of the Training Materials. R9B retains exclusive rights, title, and ownership to the Training Materials, software, data, and documentation under this Agreement. Training Materials are protected by United States copyright laws. All rights not specifically granted in this Agreement are reserved to R9B. Customer shall not attempt to, and will not allow others to reverse engineer, decompile, disassemble or translate the Training Materials, or otherwise attempt to derive source code, trade secrets or know-how in or underlying any software or any portion thereof; interfere with, modify, disrupt or disable features or functionality of the Training Materials, including without limitation any such mechanism used to restrict or control the functionality, or defeat, avoid, bypass, remove, deactivate or otherwise circumvent any software protection or monitoring mechanisms of the Training Materials; sell, rent, lease, sublicense, distribute, redistribute, syndicate, create derivative works of, assign or otherwise transfer or provide access to, in whole or in part, the Training Materials to any third party; use the Materials for any illegal, unauthorized or other improper purpose.
    • (a) Customer Ownership. As between the parties, Customer retains ownership of Materials furnished by Customer. “Materials” means information, data, software, hardware, systems and other property.
    • (b) R9B Ownership. As between the parties, R9B owns all right, title, and interest in the Services and any Materials provided by R9B, and all Intellectual Property Rights therein and thereto. As between the Parties, all right, title and interest in and to any modifications, translations, or derivatives of the Services and Materials remain exclusively with R9B, including all Intellectual Property Rights therein and thereto. “Intellectual Property Rights” means: (i) rights associated with works of authorship, including copyrights, moral rights, and mask work rights; (ii) trademark and trade name rights and similar rights; (iii) trade secret rights; (iv) patent and industrial property rights; (v) other proprietary rights in intellectual property; and (vi) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the rights referred to in clauses (i) through (v) of this sentence.
    • (c) Equipment. R9B shall retain title to any Equipment used in the performance of the Services. For Equipment shipped to Customer site, Customer shall affix to and maintain on the Equipment, in a conspicuous location, a notice stating that such Equipment is owned by R9B. Customer agrees to use the Equipment only in accordance with instructions prescribed by R9B. Customer assumes the entire risk of loss, damage, theft, or destruction of the Equipment while it is in the possession of Customer. Customer shall not, without R9B’s written consent, load any software onto the Equipment or make any alterations, additions or improvements to the Equipment.
  • 8. Term This Agreement is effective upon Acceptance.
  • 9. Student Registration and Training Event Change Policy.
    • (a) Individual Student Seats at a R9B site or online. Customer will provide written notice to R9B of any Student transfer or substitution requests at least three (3) business days prior to the start date of the class. Multiple requests and any requests that occur without the three (3) business days prior notification are subject to a fee, as determined by R9B. Exclusive of Government clients, substitute Student must be from the same organization as Student being replaced. Customer will provide notification of cancellation of Student registrations at least two (2) weeks prior to the start date of the class. Cancellations that occur without the two (2) week advance notice are subject to the full training event fee, at R9B’s discretion.
    • (b) Customer Site Classes. Customer will provide written notice to R9B of any training event reschedule or cancellation at least two (2) weeks prior to the start date of the class. Training event reschedules and cancellations that occur without the minimum two (2) week notice are subject to the full training event fee, at R9B’s discretion, and Customer will be responsible for all of R9B’s reasonable travel expenses, incurred fees and shipping costs for all rescheduled or canceled training events.
    • (c) If cancellation of a training event is due to force majeure as described in Paragraph 16, the affected Party is released in full from the required notification period requirement. The Parties will cooperate to reschedule the training event at a later date.
    • (d) Notwithstanding the above, R9B reserves the right to exclude a Student from attending any Service due to disorderly conduct or failure to meet the minimum prerequisites. No refund will be payable to Customer under such circumstances.
  • 10. Payment. Payment is required at the time of purchase, unless mutually agreed to by the Parties. R9B accepts payment by credit card, check, Automated Clearing House (ACH), Amazon Pay, and PayPal.
  • 11. Confidentiality. As used herein, “Confidential Information” shall mean all information that is disclosed in any tangible form and is clearly marked as proprietary or confidential, or information that is disclosed orally or visually, designated proprietary or confidential at time of disclosure. This information includes, but is not limited to, patent applications and other filings, trade secrets, and any other proprietary information, as well as any ideas, techniques, sketches, drawings, and the like. Customer agrees that at all times and notwithstanding any termination or expiration of this Agreement it will hold in strict confidence and not disclose to any third party any Confidential Information except as approved in writing in advance by R9B. Customer shall only permit access to Confidential Information to those of its Students, employees or authorized representatives having a need to know and who have signed a confidentiality agreement or are otherwise bound by confidentiality obligations at least as restrictive as those contained herein.
  • 12. Warranty.
    • (a) Representations and Warranties by R9B. R9B represents and warrants that the Services provided under this Agreement shall be performed with the degree of skill and judgment recognized as the standard for R9B’s industry. The exclusive remedy for any breach of the foregoing warranty shall be that R9B, at its own expense, and in response to written notice of a warranty claim by Customer within 30 days of the date on which R9B completes performance of the Services at issue, shall, at its own option, either (i) re-perform the Services to conform to this standard; or (ii) issue a voucher to the Customer for amounts paid for non-conforming Services.
    • (b) DISCLAIMER. EXCEPT AS PROVIDED IN THIS SECTION 12, R9B MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO ANY SERVICES PROVIDED HEREUNDER.
  • 13. Limitations of Liability.
    • (a) EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES. IN NO EVENT SHALL EITHER R9B OR CUSTOMER BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS (EXCLUDING AMOUNTS PAID AND PAYABLE HEREUNDER), LOST BUSINESS OPPORTUNITIES, LOSS OF USE OR EQUIPMENT DOWN TIME, AND LOSS OF OR CORRUPTION TO DATA ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH DAMAGES ARE SOUGHT, AND EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS.
    • (b) DIRECT DAMAGES. R9B’S TOTAL LIABILITY TO CUSTOMER FOR ANY AND ALL LIABILITIES, CLAIMS OR DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, HOWSOEVER CAUSED AND REGARDLESS OF THE LEGAL THEORY ASSERTED, INCLUDING BREACH OF CONTRACT OR WARRANTY, TORT, STRICT LIABILITY, STATUTORY LIABILITY OR OTHERWISE, SHALL NOT, IN THE AGGREGATE, EXCEED THE AMOUNT ACTUALLY PAID TO R9B UNDER THE SPECIFIC ORDER FROM WHICH THE CLAIM ORIGINATED.
  • 14. Governing Law; Export.
    • (a) This Agreement will be governed by and construed in accordance with the substantive laws of New York.
    • (b) Customer will not, nor will Customer authorize or permit its personnel to disclose, export, or re-export, in whole or in part, any of R9B’s Training Material or information, or any process, deliverable, material, or Service that is produced under this Agreement. Customer will comply with all applicable Federal, State, and local laws; regulations; and ordinances, including the regulations of the U.S. Department of Commerce and/or the U.S. Department of State, including without limitation, the Export Administration Regulations (EAR), and the International Trade in Arms Regulations (ITAR). In addition, Customer agrees to notify R9B if Customer or Student is listed in the Denied Parties List published by the U.S. Department of Commerce, or if Customer’s export privileges are otherwise denied, suspended, or revoked in whole or in part by either the U.S. Department of Commerce or the U.S. Department of State.,
  • 15. Taxes. Customer shall be solely responsible for the payment of any and all sales, use, value added, excise, import, or other similar taxes, including interest and penalties thereon, imposed by any authority, government or governmental agency arising out of or in connection with the performance of the Services by R9B (other than those levied on R9B’s net income), and Customer shall make such payments, and timely file any return or information required by treaty, law, rule or regulation. Upon request, Customer shall provide R9B with documentation evidencing such payments. If R9B is required to pay any such taxes, duties or fees, Customer shall reimburse R9B immediately upon receipt of R9B’s invoice therefor.
  • 16. Force Majeure. Each Party will be excused from performance, other than payment obligations, for any period during which, and to the extent that, it is prevented from performing any obligation or service, in whole or in part, due to unforeseen circumstances or to causes beyond such Party's reasonable control including, but not limited to, war, strike, riot, crime, acts of God, or shortages of resources.
  • 17. Miscellaneous.
    • (a) While on Customer's premises, R9B personnel will follow all reasonable instructions provided to R9B prior to the performance of the Services.
    • (b) R9B is an independent contractor and will not be deemed an employee or agent of Customer.
    • (c) Any subsequent modifications to this Agreement will be made in writing and duly signed by authorized representatives of both Parties or they will be void and of no effect. This Agreement is the complete and exclusive agreement between the Parties with respect to the subject matter hereof, and supersedes any previous or contemporaneous agreement, proposal, commitment, representation, or other communication whether oral or written between the Parties regarding such subject matter. This Agreement prevails over any conflicting or additional terms of any purchase order, ordering document, acknowledgement or confirmation or other document issued by Customer, even if signed and returned.
    • (d) R9B has the right to subcontract the performance of the Services to third parties, provided that R9B remains responsible for the contractual obligations set forth in this Agreement.
    • (e) All notices will be in writing and addressed to the receiving Party’s current business contact, if known, or as updated by either Party in writing. Notices shall be effective upon receipt and shall be deemed received as follows: (i) if personally delivered by courier, when delivered, (ii) if emailed, upon receipt of a read receipt notification, or (iii) if mailed by first class mail, or the local equivalent, on the fifth business day after posting with the proper address.
    • (f) Customer may not assign the rights granted hereunder or this Agreement, in whole or in part and whether by operation of contract, law or otherwise, without R9B’s prior written consent. Such consent will not be unreasonably withheld or delayed.
    • (g) No person other than a Party to this Agreement will be entitled to enforce any term of it except as expressly provided herein.
    • (h) If any provision of this Agreement is found partly or wholly illegal or unenforceable, such provision will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions will remain in full force and effect. A waiver of any breach or default under this Agreement will not constitute a waiver of any other right for subsequent breach or default.
    • (i) Any term of this Agreement, which is intended to survive expiration or termination will survive, including, without limitation, confidentiality, restrictions on use of intellectual property, limitations on liability and disclaimers of warranties and damages, governing law, and Customer’s payment obligations accrued prior to termination.
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R9B End User License Agreement

IMPORTANT: PLEASE READ THIS END USER LICENSE AGREEMENT CAREFULLY. IT IS VERY IMPORTANT THAT YOU CHECK THAT YOU ARE PURCHASING R9B HARDWARE\SOFTWARE OR EQUIPMENT FROM AN APPROVED SOURCE AND THAT YOU, OR THE ENTITY YOU REPRESENT (COLLECTIVELY, THE "CUSTOMER"), HAVE BEEN REGISTERED AS THE END USER FOR THE PURPOSES OF THIS END USER LICENSE AGREEMENT. IF YOU ARE NOT REGISTERED AS THE END USER YOU HAVE NO LICENSE TO USE THE HARDWARE\SOFTWARE AND THE LIMITED WARRANTY IN THIS END USER LICENSE AGREEMENT DOES NOT APPLY. ASSUMING YOU HAVE PURCHASED FROM AN APPROVED SOURCE, INSTALLING OR USING R9B OR R9B-SUPPLIED HARDWARE\SOFTWARE CONSTITUTES ACCEPTANCE OF THIS AGREEMENT. R9B OR ITS AFFILIATE LICENSING THE HARDWARE OR HARDWARE\SOFTWARE (COLLECTIVELY REFERRED TO AS "R9B") IS WILLING TO LICENSE THIS HARDWARE\SOFTWARE TO YOU ONLY UPON THE CONDITION THAT YOU PURCHASED THE HARDWARE\SOFTWARE FROM AN APPROVED SOURCE AND THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS END USER LICENSE AGREEMENT PLUS ANY ADDITIONAL LIMITATIONS ON THE LICENSE SET FORTH IN A SUPPLEMENTAL LICENSE AGREEMENT ACCOMPANYING THE PRODUCT, MADE AVAILABLE AT THE TIME OF YOUR ORDER. TO THE EXTENT OF ANY CONFLICT BETWEEN THE TERMS OF THIS END USER LICENSE AGREEMENT AND ANY SUPPLEMENTAL LICENSE AGREEMENT, THE SUPPLEMENTAL LICENSE AGREEMENT SHALL APPLY. BY INSTALLING, OR USING THE HARDWARE\SOFTWARE, YOU ARE REPRESENTING THAT YOU PURCHASED THE HARDWARE\SOFTWARE FROM AN APPROVED SOURCE AND BINDING YOURSELF TO THE AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THE AGREEMENT, THEN R9B IS UNWILLING TO LICENSE THE HARDWARE\SOFTWARE TO YOU AND (A) YOU MAY NOT DOWNLOAD, INSTALL OR USE THE HARDWARE\SOFTWARE, AND (B) YOU MAY RETURN THE HARDWARE\SOFTWARE (INCLUDING ANY UNOPENED PACKAGES AND ANY WRITTEN MATERIALS) FOR A FULL REFUND, OR, IF THE HARDWARE\SOFTWARE AND WRITTEN MATERIALS ARE SUPPLIED AS PART OF ANOTHER PRODUCT, YOU MAY RETURN THE ENTIRE PRODUCT FOR A FULL REFUND. YOUR RIGHT TO RETURN AND REFUND EXPIRES 30 DAYS AFTER PURCHASE FROM AN APPROVED SOURCE AND APPLIES ONLY IF YOU ARE THE ORIGINAL AND REGISTERED END USER PURCHASER. FOR THE PURPOSES OF THIS END USER LICENSE AGREEMENT, AN "APPROVED SOURCE" MEANS (A) R9B; OR (B) A DISTRIBUTOR OR SYSTEMS INTEGRATOR AUTHORIZED BY R9B TO DISTRIBUTE / SELL R9B EQUIPMENT, HARDWARE\SOFTWARE AND SERVICES WITHIN YOUR TERRITORY TO END USERS; OR (C) A RESELLER AUTHORIZED BY ANY SUCH DISTRIBUTOR OR SYSTEMS INTEGRATOR IN ACCORDANCE WITH THE TERMS OF THE DISTRIBUTOR'S AGREEMENT WITH R9B TO DISTRIBUTE / SELL THE R9B EQUIPMENT, HARDWARE\SOFTWARE AND SERVICES WITHIN YOUR TERRITORY TO END USERS.

  • 1. DEFINITIONS:
    • 1.1 “Agreement” means these end-user License Terms and Conditions, and if applicable, any relevant (i) Purchase Order delivered by Customer to R9B, (ii) quote delivered by R9B to Customer, (iii) any Supplemental License Agreement accompanying the product, made available at the time of your order, (iv) Standard Support Policy, and/or (v) statement of work or professional services agreement (and any statement of work attached thereto), in each case, between R9B and Customer.
    • 1.2 “Confidential Information” means information of a confidential or proprietary nature disclosed by one part to the other party pursuant to this Agreement, which is marked as confidential, proprietary or some other manner to indicate its confidential nature. Confidential Information may also include oral information disclosed by one party to the other, and information disclosed visually, provided that such information is designated as confidential at the time of disclosure or access and reduced to a written summary by the disclosing party within 30 days after its disclosure. Confidential Information may include, but is not limited to, trade secrets, know how, inventions, techniques, processes, programs, schematics, information which the receiving party knows or has reason to know is confidential or proprietary of the disclosing party, customer lists, and financial information.
    • 1.3 “Customer” means you and any legal entity, as expressly named on a Purchase Order accepted by R9B, that obtained the Licensed Product(s) hereunder and on whose behalf such Licensed Product(s) are used, to include but not be limited to contractors and consultants. If no Purchase Order exists, the individual (and the entity for which such individual is an agent) that acknowledges and agrees to this Agreement upon installing a Licensed Product is the Customer for purposes hereunder.
    • 1.4 "Defect” means a material error in program logic or Documentation attributable to R9B which prevents the performance of a principal computing function as set forth in R9B’s published specifications for the Licensed Product.
    • 1.5 "Documentation" means the user or system manuals and other published material delivered with the Licensed Product to Customer, which include the specifications.
    • 1.6 “Effective Date” means the date that Customer’s applicable Purchase Order for the purchase of any particular Licensed Product is accepted by R9B as evidenced by R9B’s counter-signature of such purchase order and/or Delivery of the purchased Licensed Product set forth on such Purchase Order. If no Purchase Order exists, the Effective Date shall be the date that Customer enters into this Agreement with R9B.
    • 1.7 “Internal Network” means a private, proprietary computer network resource utilizing Supported Computers established and maintained by Customer and accessible only by Customer’s employees and authorized contractors, excluding any portions of the Internet or any other network community open to the public.
    • 1.9 “Licensed Product” means R9B’s proprietary hardware architecture and remote active defense computer program(s), including the ORION platform as well as R9B’s credential risk assessment tool ORKOS, any other delivered software, any individual payloads in any format (object code form, source code, or otherwise), including any accompanying Documentation, manuals, Upgrades, Releases, hardware, embedded third party computer program(s), databases, enhancements, and instructions, and any copies thereof, purchased by, and delivered by R9B to Customer pursuant to this Agreement. Licensed Product shall also include the accompanying computer disks, hardware security device and, if applicable, any hardware computer, hard drive or server delivered to, Customer.
    • 1.12 “Purchase Order” means any written purchase order submitted by Customer and accepted by R9B, such acceptance only to be evidenced by either R9B’s counter-signature of such purchase order and/or Delivery by R9B of the Licensed Products expressly purchased by Customer thereunder.
    • 1.13 "Release" means a new version of the Licensed Product with new features and/or significant enhancements to the existing Licensed Product (e.g. a change to the numbers left of the period X.XX).
    • 1.15 “Supported Computer(s)” means one or more computers owned or leased by Customer, and under Customer's control, of a manufacturer, model and operating system for which R9B offers a current version of the Licensed Product. Subject to the restrictions set forth in this Agreement, the Customer may, at its sole discretion and expense, transfer or move the Licensed Product from one Customer proprietary network to another at any time.
    • 1.16 “Upgrade" means a revision of the Licensed Product with minor changes and/or Defect corrections (e.g. a change in the numbers to the right of the period X.XX). Upgrades generally occur between each Release of the Licensed Product.
  • 2. LICENSE GRANT:
    • 2.1 General. Subject to the terms and conditions of this Agreement, R9B grants to Customer, and Customer accepts, a revocable, non-exclusive, non-sublicensable, non-transferable copyright license during the term of this Agreement, solely for Customer’s own business purposes on an Internal Network, to execute one instance of the Licensed Product only on Supported Computer(s) within an Internal Network. The Licensed Product may not be used (i) on a service bureau or time- sharing basis; (ii) on more than one Internal Network unless expressly agreed in writing with R9B, (iii) for consulting or managed security services provided to third parties; or (iv) in a for-hire engagement for revenue or other consideration on Supported Computer(s) or third-party computers. Other than as explicitly set forth in this Agreement, Customer shall not permit any other person or entity to access or use the Licensed Product. The Licensed Product is provided in and may be used in machine-readable object code form only. The Licensed Product may contain open source software tools and, if applicable, the use of such tools is governed by the terms and conditions of the applicable open source license.
    • 2.2 Copies. Customer may make one archival or back-up copy of the Licensed Product, provided that such copy is not used simultaneously or concurrently with the original, and only if R9B and its vendors' copyright and proprietary notices on the software are included on such copy.
    • 2.3 Customer Hardware Modifications and Enhancements. Customer may not make any modifications or enhancements to the Licensed Product, create any derivative works of the Licensed Product, merge or separate the Licensed Product or any component thereof, or remove, alter or obscure any proprietary notice without R9B’s prior written consent. Customer acknowledges the Licensed Product contains embedded hardware that R9B distributes subject to a restricted license. Customer agrees not to use the embedded hardware except in conjunction with the Licensed Product. Customer agrees not to decompile, reverse compile, disassemble or otherwise reverse engineer any Licensed Product, or permit, help, or encourage others to do so, or to use any Licensed Product for purposes of competitive analysis of the Licensed Product, the development of a competing software product or service or any other purpose that is to the Licensor's commercial disadvantage. Customer agrees not to run (or publish the results of) any benchmark tests on the Licensed Product without first obtaining R9B’s approval.
    • 2.4 Customer Software Modifications and Enhancements. Customer may not make any modifications or enhancements to the Licensed Product, create any derivative works of the Licensed Product, merge or separate the Licensed Product or any component thereof, or remove, alter or obscure any proprietary notice without R9B’s prior written consent. Customer acknowledges the Licensed Product contains embedded software programs that R9B distributes subject to a restricted license. Customer agrees not to use the embedded software programs except in conjunction with the Licensed Product. Customer agrees not to decompile, reverse compile, disassemble or otherwise reverse engineer any Licensed Product, or permit, help, or encourage others to do so, or to use any Licensed Product for purposes of competitive analysis of the Licensed Product, the development of a competing software product or service or any other purpose that is to the Licensor's commercial disadvantage. Customer agrees not to run (or publish the results of) any benchmark tests on the Licensed Product without first obtaining R9B’s approval.
    • 2.5 Proper Use of Licensed Product. The Customer acknowledges that the continued integrity of the Licensed Product and R9B’s performance of its obligations described in this Agreement are dependent upon the proper use and maintenance of the Licensed Product by Customer. Proper use and maintenance means that Customer will (i) install all Upgrades and Releases delivered to Customer hereunder, (ii) use the Licensed Product in accordance with the Documentation supplied by R9B and the terms and conditions of this Agreement, and (iii) follow R9B’s instructions for installing new Releases and Upgrades and for correcting and circumventing software bugs.
  • 3. OWNERSHIP AND PROPRIETARY RIGHTS: Title to, ownership of, and all rights in patents, copyrights, trade secrets, trade dress, and all other proprietary rights in the Licensed Product does not transfer to Customer and shall remain with R9B and/or R9B’s third party vendors and licensors. In addition, R9B may furnish Customer with its (or its third party vendor’s or licensor’s) Confidential Information in connection with the provision of the Licensed Product. Customer shall protect such Confidential Information of R9B to the same degree it protects its own Confidential Information, but with no less than a reasonable degree of care. The Licensed Product shall also be considered Confidential Information of R9B and, except as specifically permitted herein, shall not be disclosed to any third party.
  • 4. TERM OF LICENSES:
    • 4.1 Term. The licenses granted hereunder for any particular Licensed Product purchased by Customer commence on the Effective Date relevant to such purchase and remain in effect perpetually (or, if a shorter term is specified on any applicable R9B quote/Purchase Order, for the length of such designated term), unless terminated in accordance with Section 4.2, below. Upon expiration or termination of this Agreement or any software license granted hereunder, Customer's right to use the related Licensed Product shall immediately end and Customer shall: (i) promptly return all Licensed Product (including any and all hardware dongles or other R9B hardware on which the Licensed Product was delivered) and R9B Confidential Information, including all copies thereof, to R9B; (ii) erase all Licensed Product from the memory of its computer(s) and storage devices or render it non-readable; and (iii) upon R9B's request, certify in writing that Customer has satisfied its obligations hereunder.
    • 4.2 Termination. Customer or R9B may terminate a license, statement of work, or this Agreement if the other party materially breaches its obligations under this Agreement and does not cure such breach within thirty (30) days of receipt of written notice of such breach. Customer acknowledges that if Customer commits a breach which adversely affects R9B's intellectual property rights (or in R9B’s opinion such a breach is threatened), including but not limited to a breach of Section 2 above, such breach will give rise to irreparable injury to R9B, which would be inadequately compensated for in damages. Accordingly, R9B may immediately obtain injunctive relief against such breach or threatened breach, in addition to any other legal or equitable remedies that may be available, and Customer hereby consents to R9B obtaining such injunctive relief.
  • 5. WARRANTY: R9B warrants, for period of one (1) year from the Effective Date, that each item of Licensed Product shall be free from Defects. Non-substantial variation of performance of a Licensed Product from its Documentation does not establish a warranty right hereunder. To the maximum extent permitted by applicable law, the entire liability of R9B, and Customer’s sole and exclusive remedy, with respect to any Defect reported to R9B within this warranty period which causes and continues to cause a system-critical disruption of the Customer’s business operations, shall be limited to either, at R9B’s sole option (i) correction or circumvention support of the reported Defect based on the warranty claim, (ii) replacement of the Defective Licensed Product, or (iii) if support or replacement is not practicable at R9B’s determination, refund of the prepaid software license fee Customer paid for the Defective Licensed Product (if any); provided, however, that: (i) Customer shall promptly notify R9B of any Defects discovered and shall furnish to R9B adequate supporting documentation and details to substantiate and to assist R9B in the identification and detection of such Defect; and (ii) the Defect can be reproduced by R9B on properly functioning equipment controlled by R9B. Customer is not entitled to a refund of prepaid software license fees paid to R9B for the Licensed Product for any reason whatsoever other than for warrantied Defects as expressly stated under this Section 5. In addition, with respect to certain hardware, to the extent the original equipment manufacturer offers its own hardware warranty, R9B will pass-through such warranty to Customer.
  • 6. DISCLAIMER OF WARRANTIES: CUSTOMER ACKNOWLEDGES AND AGREES THAT THE LICENSED PRODUCT IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND THAT USE OF OR RELIANCE UPON THE LICENSED PRODUCT, AND ANY THIRD-PARTY CONTENT ACCESSED THEREBY, IS AT COMPANY’S SOLE RISK AND DISCRETION. EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 5, ABOVE, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, R9B DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. R9B DOES NOT WARRANT THAT THE OPERATION OF THE LICENSED PRODUCT IS WITHOUT INTERRUPTION OR DEFECT FREE, OR THAT THE LICENSED PRODUCT WILL MEET CUSTOMER’S REQUIREMENTS. THE WARRANTY SET FORTH IN SECTION 5, ABOVE, IS CONTINGENT UPON (A) THE PROPER USE OF THE LICENSED PRODUCT IN ACCORDANCE WITH SECTION 2.5, AND (B) THE LICENSED PRODUCT NOT BEING SUBJECTED TO UNUSUAL PHYSICAL OR ELECTRICAL STRESS, OR INTERFERENCE FROM APPLICATIONS, DERIVATIVE WORKS, OR CONFIGURATIONS PROVIDED BY THIRD PARTIES. THE WARRANTY SET FORTH IN SECTION 5, ABOVE, DOES NOT EXTEND TO DEFECTS IN THE LICENSED PRODUCT THAT RESULT FROM (A) CUSTOMER’S FAILURE TO IMPLEMENT ALL UPGRADES AND RELEASES ISSUED BY R9B DURING THE WARRANTY PERIOD, OR (B) TO THE EXTENT MODIFICATIONS WERE MADE BY CUSTOMER TO ITS OPERATING ENVIRONMENT.
  • 7. DAMAGES AND INDEMNITY:
    • 7.1 Limitation Of Liability. IN NO EVENT SHALL R9B OR ANY SOFTWARE LICENSOR WHOSE PROGRAM(S) IS EMBEDDED IN THE LICENSED PRODUCT BE LIABLE TO THE CUSTOMER FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, ANY DAMAGES ARISING FROM THE LOSS OF USE, DATA OR PROFITS, OR ANY DAMAGES CAUSED BY THE TORTIOUS OR CRIMINAL ACTS OR OMISSIONS OF CUSTOMER OR CUSTOMER’S AGENTS, OR OTHER ACTS OR OMISSIONS CONSTITUTING A BREACH OF THIS AGREEMENT OR VIOLATION OF LAW. R9B’S ENTIRE LIABILITY TO CUSTOMER OR ANY THIRD PARTY, WHETHER IN TORT, CONTRACT, NEGLIGENCE, OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT OF LICENSE FEES PAID BY CUSTOMER TO R9B DURING THE ONE (1) YEAR IMMEDIATELY PRECEDING THE CLAIM.
    • 7.2 Infringement Indemnification. R9B will defend Customer from any claim, action, demand or lawsuit brought by a third party alleging that the unmodified Licensed Product, as originally delivered, directly infringes a United States patent, copyright, or trademark, up to the amount of license fees actually paid by Customer under this Agreement, provided that: (i) Customer notifies R9B in writing within seven (7) calendar days of learning of such claim, action, demand, or lawsuit, and provides R9B with a copy of the allegedly infringing code, (ii) Customer gives R9B the right to control the defense of such claims, and (iii) Customer fully cooperates with R9B in any defense or settlement of such claims. In the event that it is finally determined by a court of competent jurisdiction (or in a final settlement agreement consented to by R9B) that the Licensed Product infringes a United States patent, copyright, or trademark, Customer’s sole and exclusive remedy shall be that R9B will, in its sole discretion: (i) replace the infringing Licensed Product with a non-infringing, functionally-compatible product; or (ii) modify the Licensed Product so that it becomes non-infringing, (iii) obtain a license for Customer to use the allegedly infringing product, or (iv) accept refund of the Licensed Product and refund the license fee paid for the relevant Licensed Product, less a reasonable sum for use. The foregoing indemnity shall only apply to the extent the infringement is the responsibility of R9B, not apply to infringements that arise from the use of the Licensed Product in combination with other non-R9B products; and states the entire obligation of R9B with respect to the infringement of any intellectual property rights. Customer shall defend, indemnify and hold harmless, R9B from any third party (including employees, officers or directors of Customer) claim or suit against R9B, to the extent such claim results from Customer’s use of the Licensed Product.
  • 8. U.S. GOVERNMENT END-USERS: The Licensed Product and accompanying documentation are “Commercial Items” and “Commercial software documentation,” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995) and are provided to the Government (i) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (ii) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 (JUN 1995) and 227.7203-3 (JUN 1995).
  • 9. EXPORT/IMPORT CONTROL: Customer acknowledges that the Licensed Product is subject to export and import control of the United States of America (ECCN 5D002). Customer understands that the Licensed Product is not exportable to embargoed countries specified in section 740 of the Export Administration Regulations. For a complete list of the countries, see Supplement 1 to Part 740 at https://www.bis.doc.gov/index.php/forms-documents/doc_view/452-supplement-no-1-to-part-740-country-groups. Customer represents and warrants that the Licensed Product shall not be used for any nuclear, chemical/biological warfare, missile end-use or training related thereto. Customer acknowledges that it is Customer’s ultimate responsibility to comply with all import, export, and other applicable laws, in the U.S. or elsewhere, and that R9B has no further responsibility after the initial delivery of the Licensed Product to the Customer.
  • 10. AUDIT. R9B shall have the right to audit Customer’s compliance with the terms of this Agreement and restrictions on licenses granted hereunder. Customer agrees to keep all records and books of accounts and all entries therein relating to use of the Licensed Product hereunder. Such records shall be maintained for the period required pursuant to Licensee’s standard records retention policy, but in no event less than five (5) years. Upon reasonable notice by R9B, Customer shall permit R9B to enter Customer’s premises and/or securely connect to Customer’s network of Supported Computers in order to establish Customer’s compliance with this Agreement. Customer’s information disclosed during the course of any audit shall be considered Confidential Information. Any audit shall occur during normal business hours at Customer’s place of business and shall not occur more frequently than one (1) time in any annual period, unless R9B has a reasonable belief that the terms of this Agreement have been violated. R9B shall bear the cost of conducting any such audit, unless R9B discovers evidence that Customer is using the Licensed Product outside the scope of this Agreement, in which case, Customer agrees to pay R9B the fair market value of the Licensed Product being used by Customer without a license, in addition to any fees incurred by R9B to conduct the audit.
  • 11. THIRD PARTY BENEFICIARY. R9B’s third-party licensors are third-party beneficiaries to this Agreement. Upon Customer’s acceptance of this Agreement, such third-party licensors shall have the right to enforce the terms of this Agreement against Customer as a third-party beneficiary thereof.
  • 12. GENERAL PROVISIONS
    • 12.1 Assignment. Customer shall not assign, delegate, sublicense or otherwise transfer all or part of the Licensed Product or Confidential Information, grant others rights in all or part of the Licensed Product or Confidential Information, or otherwise assign its rights or obligations under this Agreement without the prior written consent of R9B, which shall not be unreasonably withheld but may require payment of an administrative assignment fee by Customer. For purposes of this section, an assignment or transfer shall include any change in majority ownership or control of Customer, including merger or other transfer of voting securities.
    • 12.2 Notices. All modifications to this Agreement must be in writing and signed by both parties. Failure or delay of either party to exercise any right or remedy hereunder shall not constitute a waiver of rights or remedies under this Agreement. Any notice given hereunder shall be sent in writing to the other party's business address set forth on the cover page or to such other party and address as such party shall most recently have designated in writing. Notices directed to R9B shall be sent "Attention: Legal Department".
    • 12.3 Governing Law. The validity and performance of this Agreement shall be governed by New York law (without reference to choice of law principles), except as to copyright and trademark matters, which are covered by federal laws. The parties expressly agree that the Uniform Computer Information Transactions Act does not apply to the terms of this Agreement. This Agreement shall be construed as to its fair meaning and not strictly for or against either party due to the fact that this Agreement or such provision was drafted by such party. Any action arising out of or relating to this Agreement or to its breach shall be brought in any federal or state court sitting in New York and both parties hereby submit to the exclusive jurisdiction of the federal and state courts in New York. The prevailing party shall be entitled to receive from the other party its reasonable attorneys’ fees, expert witness fees and costs incurred in connection with any action or proceeding hereunder.
    • 12.4 Entire EULA. In the event of conflict between this Agreement and any applicable Customer document, the terms of this Agreement shall govern.
    • 12.5 Severability. If any provision of this Agreement is held unenforceable or inoperative by any court of competent jurisdiction, either in whole or in part, the remaining provisions shall be given full force and effect to the extent not inconsistent with the original terms of this Agreement.
    • 12.6 Survival. All obligations hereunder, which by their nature are intended to survive expiration or termination of this Agreement, shall survive termination or expiration of this Agreement.
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