Software Subscription Agreement

This Agreement is entered into between Cloudentity Inc. ("Cloudentity") and your organization ("Customer") as of the date on which Customer accepts these terms by clicking "accept" or the similarly labeled control indicating acceptance of the agreement (the "Effective Date"). If the individual accepting this Agreement is accepting on behalf of a company, government agency, or other legal entity, such individual represents that they have the authority to bind such entity and its Affiliates to this Agreement, in which case the term "Customer" shall refer to such entity and its Affiliates. If the individual does not have such authority, or if the individual or represented entity does not agree with the terms and conditions of this Agreement, such individual must not accept this Agreement and may not use the Service.


1  General

1.1  Provision of Service
Subject to the terms and conditions of this Agreement, Cloudentity shall make the Service available to Customer during the term specified in the applicable Order Form(s) so that Customer may utilize the Service, solely for Customer’s business use, all in accordance with this Agreement, the applicable Order Form(s) and the Documentation. Customer agrees that its purchase of the Products is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Cloudentity with respect to future functionality or features.

1.2  Software License Grant
Subject to the terms and conditions of this Agreement, Cloudentity hereby grants Customer, during the term specified in the applicable Order Form(s), a limited, non-exclusive, non-assignable, non-transferable license to use the software service and/or download and install/deploy related Cloudentity software components for Customer’s business use, all in accordance with this Agreement, any applicable Order Form(s) and the Documentation.

1.3  Service Level Agreement

1.3.1  Scope Limitation
Cloudentity offers its software as both Software-as-a-Service and as deployed, downloadable packages. The service level agreements defined within this document apply only to Software-as-a-Service components.

1.3.2  Critical Functions
Cloudentity intends to provide a specific subset of critical functionality provided by its Software-as-a-Service at 99.99% up-time. The Critical Functions covered by this SLA are the following interfaces that have been identified as required for uninterrupted end-user interaction with the system:

    • OAuth 2 protocol API and UI endpoints
    • Consent API and UI endpoints
    • User Portal API and UI endpoints
    • API endpoints required by MicroPerimeter to start and run
    • 3rd party Identity Provider integration functionality (specifically excluding functionality performed by the 3rd party itself)

Administrative APIs and UIs are not considered to be part of end-user interaction and are therefore not included in the set of Critical Functions identified above.

1.3.3  Service Credits
The average availability for the Critical Functions (as listed in section 1.3.1) for each month will be at least 99.99%. If Cloudentity fails to meet this availability service level during any given calendar month, Customer may request a service level credit within 10 days after the end of the month. Cloudentity will provide Customer with a credit as described in the table below. If any credits are not used upon the expiration of Customer’s subscription, then Cloudentity will apply the credits to any other fees or expenses owed by Customer to Cloudentity. If there are no other such fees or expenses, then Cloudentity will refund the credit amount.

 Availability Level  Service Level Credit
< 99.99% - >= 99.9% 5% of the Monthly Subscription fee applicable to the calendar month in which an applicable service disruption occurred.
< 99.90% - >= 99.0% 5% of the Monthly Subscription fee applicable to the calendar month in which an applicable service disruption occurred.
< 99.0% - >= 95.0% 5% of the Monthly Subscription fee applicable to the calendar month in which an applicable service disruption occurred.
< 95.0% 5% of the Monthly Subscription fee applicable to the calendar month in which an applicable service disruption occurred.

 

1.4  Developer Tier
Cloudentity offers a Developer Tier service at a significantly reduced (potentially zero) cost. The Developer Tier service is delivered via Cloudentity’s Software-as-a-Service infrastructure and is subject to the following limitations:

1.4.4  Limited Support Coverage
Developer Tier product support is available between the hours of 8 am and 8 pm US Eastern Time.

1.4.5  Limitation of Functionality and Performance
Cloudentity reserves the right to limit the functionality and performance of Trial Products using rate limits, throttling and any other methods at its disposal in order to mitigate overuse or abuse of the developer tier service.

1.4.6  Limitation of Service Level Agreement
The Developer Tier Service Level Objective is 99% up-time for critical function as defined in section 1.3. The Developer Tier Service Level is not guaranteed and will not result in subscription credits if they are not attained.

1.4.7  Right to adjust duration and cost of use
Cloudentity reserves the right to alter the cost and duration of availability for the Developer Tier at any time given 15 days’ notice to Customer.

1.5  Beta Versions
Cloudentity may offer beta, preview or other pre-release Products or Services ("Beta Versions"). Beta Versions may not have been tested or debugged and are experimental, and any documentation may be in draft form. Cloudentity may change or discontinue Beta Versions at any time without notice.

1.6  Support for Products
Cloudentity will provide those Support Services for the Products in accordance with Cloudentity’s Support Policy. Cloudentity is not obligated under the terms of this Agreement to provide any customer service or support to any User other than Administrators; such responsibility (if any) shall remain with Customer.

1.7  Order Forms
Customer and its Affiliates may place orders under this Agreement by executing Order Form(s). When an Affiliate of Customer signs an Order Form under this Agreement, the Affiliate shall be considered the Customer for purposes of such Order Form and shall be bound by the terms and conditions of this Agreement.

1.8  Resellers
In the event that Customer purchases subscriptions to the Products through an authorized reseller of Cloudentity (a "Reseller"), no Order Forms will be executed between Cloudentity and Customer. Fees and Taxes (if any) will be payable to Reseller, and the billing and payment terms will be determined pursuant to Customer’s agreement(s) with Reseller in lieu of Section 3 hereof. Resellers have no authority to modify any of the terms of this Agreement and may not grant Customer any rights to the Products beyond what is set forth in the ordering documentation between Cloudentity and Reseller.

 

2   Usage & Restrictions

Customer shall use the Products solely for its own business purposes in accordance with this Agreement and any related Order Form. Customer shall obtain any required authorizations or consents from Users for the transmission of Customer Data to Cloudentity and other third parties in connection with the Products and related processing by such persons, including as may be necessary under any data protection laws and regulations. Customer shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, operate as a service bureau or managed service, or otherwise commercially exploit or make the Products available to any third party except as expressly contemplated by this Agreement; (ii) modify, adapt, alter, translate or create derivative works of the Products; (iii) frame or mirror any content forming part of the Service, other than on Customer’s own intranets or otherwise for its own internal business purposes; (iv) reverse engineer, decompile or disassemble the Products (or otherwise attempt to derive the source code or underlying ideas or algorithms of the Software); (v) take any action that would cause the Products to be placed in the public domain; (vi) remove, alter, or obscure any proprietary notices of Cloudentity, its licensors or supplier included in the Products; (vii) send or store Malicious Code or infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material or spam; (viii) interfere with or disrupt the integrity or performance of the Service or the data contained therein, including conducting any load or penetration testing on the Service; (ix) attempt to gain unauthorized access to the Service or its related systems or networks; or (x) access the Products in order to (a) build a competitive product or service, or (b) copy any ideas, features, functions or graphics of the Products.

 

3  Fees & Payment

3.1  Fees
Customer shall pay all fees specified in any Order Forms hereunder (the "Fees"). If Customer is purchasing through a Reseller, the applicable Fees will be set forth in Customer’s ordering documentation with the Reseller and such Fees will be remitted to Reseller. Except as otherwise provided, all fees are quoted and payable in United States dollars.

In the event that Customer is purchasing a subscription based on the number of transactions, authorization tokens, active users, connections or any other metric set forth in an Order Form, and Customer’s actual usage exceeds the applicable limit on such metric, overage charges shall apply based on the then-current per-unit rate on the applicable Order Form or as otherwise set forth therein, and Customer shall remit such charges to Cloudentity.

3.2  Invoicing & Payment Terms
Unless Customer enters into a specific subscription contract to prepay for services, Fees will be accrued through the use of the Product during each month and will be invoice at the end of each month. Invoices are due upon receipt.

3.3  Usage Overages
In the event that Customer has purchased a subscription based on a pre-committed number of transactions, authorization tokens, active users, connections or any other metric set forth in an Order Form, the Customer’s actual usage will be evaluated each three months and if the Customer’s actual usage for any individual month exceeds the pre-committed limit on such metric by more than 10%, overage charges shall apply based on the then-current per-unit rate on the applicable Order Form or as otherwise set forth therein, and Customer shall remit such charges to Cloudentity.

3.4  Overdue Payments
For those payments that are invoiced, any payment not received from Customer within 30 days may accrue (except with respect to charges then under reasonable and good faith dispute), at Cloudentity’s discretion, late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment reached 30 days late until the date paid.

3.5  Taxes
Customer is responsible for paying all applicable direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, sales, use or withholding taxes (collectively, "Taxes") associated with its purchases hereunder, above and beyond the Fees, excluding taxes based on Cloudentity’s net income or property, unless Customer provides Cloudentity with a valid tax exemption certificate authorized by the appropriate taxing authority. Unless otherwise stated, all prices set forth on an Order Form are exclusive of Taxes.

3.6  Suspension of Service for Critical Cause
Cloudentity reserves the right to suspend the Service provided to Customer if: (i) Customer is delinquent on any undisputed (in good faith) late payment obligations for more than thirty (30) days following written notice of such late payment; (ii) Cloudentity reasonably believes that suspension of the Service is necessary to comply with the law or requests of governmental entities; or (iii) Cloudentity reasonably determines that Customer’s use of the Service in violation of this Agreement poses any security or vulnerability risk to Cloudentity or the Service. Customer shall only be responsible for fees and charges during the period of suspension if the underlying cause was Customer’s breach of this Agreement. Cloudentity will endeavor to give advance notice of the suspension, to the extent it is able, taking into account the nature of the underlying cause. Cloudentity will restore access to the Service as soon as the underlying cause is mitigated.

 

4  Confidentiality

Each party agrees to protect the Confidential Information (as defined below) of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event using less than a reasonable standard of care. A party shall not: (i) disclose or use any Confidential Information of the other party for any purpose outside the scope of this Agreement, except with the disclosing party’s prior written permission and (ii) disclose or make the other party’s Confidential Information available to any party, except those of its employees, contractors, and agents that have signed an agreement containing disclosure and use provisions substantially similar to those set forth herein and have a "need to know" in order to carry out the purpose of this Agreement. Confidential Information shall not include any information that (a) is or becomes generally known to the public, other than as a result of the act or omission of the receiving party; (b) were rightfully known to a party prior to its disclosure by the other party without breach of any obligation owed to the other party; (c) is lawfully received from a third party without breach of any obligation owed to the other party; or (d) was independently developed by a party without breach of any obligation owed to the other party. If a party is compelled by law to disclose Confidential Information of the other party, it shall provide prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the other party's cost, if the other party wishes to contest the disclosure. Due to the unique nature of the parties’ Confidential Information disclosed hereunder, there can be no adequate remedy at law for a party’s breach of its obligations hereunder, and any such breach may result in irreparable harm to the non-breaching party. Therefore, upon any such breach or threat thereof, the party alleging breach shall be entitled to seek injunctive and other appropriate equitable relief in addition to any other remedies available to it.

 

5  Customer Data

As between Cloudentity and Customer, Customer owns its Customer Data. Customer grants to Cloudentity, its Affiliates and applicable contractors a worldwide, limited-term license to host, copy, transmit and display Customer Data, as reasonably necessary for Cloudentity to provide the Service in accordance with this Agreement. Subject to the limited licenses granted herein, Cloudentity acquires no right, title or interest in any Customer Data.

 

6  Security

Cloudentity shall maintain appropriate administrative, physical, and technical safeguards to protect the security and integrity of the Service and the Customer Data as described in the applicable Cloudentity Documentation.

6.7  Business Continuity/Disaster Recovery
During the term of this Agreement, Cloudentity will maintain and comply with its then-current Business Continuity and Disaster Recovery Plans. Cloudentity will test such plans at least annually. Upon written request, Cloudentity will provide (i) a copy of the table of contents to such plan, and (ii) a summary of its annual testing results.

6.8  Data Retention and Destruction
Upon Customer’s written request Cloudentity will delete the Customer Data contained within the Service. Cloudentity will retain automated backup copies and log files generated by the Service that may contain Customer Data in accordance with Cloudentity’s data retention policy.

 

7  Proprietary Rights

7.1  Reservation of Rights
Subject to the limited rights expressly granted hereunder, Cloudentity reserves all rights, title and interest in and to the Products (and any enhancements, modifications, or derivative works thereof, or other software development performed by Cloudentity), including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.

7.2  Suggestions
Cloudentity shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Products any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its Users relating to the operation of the Products.

 

8   Warranties & Disclaimers

8.1  Warranties
Each Party represents that it has the legal power to enter into this Agreement. Cloudentity warrants that it will provide the Products in a manner consistent with industry standards applicable to the provision thereof, and will provide the Support Service and any professional services in a good, professional and workmanlike manner consistent with applicable industry standards.

8.2  Harmful Code
Cloudentity warrants that it will use commercially reasonable efforts, using industry standard practices, to ensure that the Products, in the form provided by Cloudentity to Customer, do not contain Malicious Code.

 

9  Indemnification

9.1  Indemnification by Cloudentity
Subject to the terms of the Agreement, Cloudentity will defend at its own expense any action against Customer brought by a third party alleging that the Products, in each case, as delivered, infringe any patents issued as of the Effective Date or any copyrights or misappropriate any trade secrets, in each case, of a third party, and Cloudentity will indemnify and hold Customer harmless against those costs and damages finally awarded against Customer in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. The foregoing obligations are conditioned on Customer’s compliance with the Indemnification Conditions (defined below). If the Products become, or in Cloudentity’s opinion are likely to become, the subject of an infringement claim, Cloudentity may, at its option and expense, either: (i) procure for Customer the right to continue using the Products; (ii) replace or modify the Products so that they become non-infringing; or (iii) terminate the subscription to the infringing Products and refund Customer any unused, prepaid fees for the infringing Products covering the remainder of the subscription term after the date of termination. Notwithstanding the foregoing, Cloudentity will have no obligation or liability under this Section 9.1 or otherwise with respect to any infringement claim based upon: (a) any use of the Products not in accordance with this Agreement; (b) any use of the Products in combination with products, equipment, software, or data not supplied or approved in writing by Cloudentity if such infringement would have been avoided but for the combination with other products, equipment, software or data; (c) any use of a prior release of the Software after a more current release has been made available to Customer; or (d) any modification of the Products by any person other than Cloudentity. THIS SECTION 9.1 STATES CLOUDENTITY’S ENTIRE LIABILITY AND THE CUSTOMER’S EXCLUSIVE REMEDY FOR ANY CLAIMS OF INFRINGEMENT.

9.2  Indemnification by Customer
Subject to the terms of this Agreement, Customer will defend at its own expense any action against Cloudentity brought by a third party (including any User) (i) alleging that Cloudentity’s possession or use of the Customer Data violates or misappropriates the rights of, or has otherwise harmed, a third party, or (ii) concerning a User’s use of the Service (provided it is not due to Cloudentity’s breach of this Agreement), and Customer will indemnify and hold Cloudentity harmless against those costs and damages finally awarded against Cloudentity in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. The foregoing obligations are conditioned on Cloudentity’s compliance with the Indemnification Conditions (defined below).

9.3  Indemnification Conditions
"Indemnification Conditions" means the following conditions, which a Party must comply with to be entitled to the defense and indemnification obligations of the other Party under this Agreement. The indemnified Party must (i) notify the indemnifying Party promptly in writing of such claim or allegation, setting forth in reasonable detail the facts and circumstances surrounding the claim; (ii) give the indemnifying Party sole control of the defense thereof and any related settlement negotiations, including not making any admission of liability or take any other action that limits the ability of the indemnifying Party to defend the claim; and (iii) cooperating and, at the indemnifying Party’s request and expense, assisting in such defense.

 

10  Limitation of Liability

10.1  Limitation of Liability
NEITHER PARTY’S CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT.

10.2  Exclusion of Consequential and Related Damages
IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR (i) ERROR OR INTERRUPTION OF USE, LOSS OR INACCURACY OR CORRUPTION OF DATA, (ii) COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, RIGHTS, OR TECHNOLOGY (iii) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR (iv) LOSS OF REVENUES AND LOSS OF PROFITS, HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10.3  Limitations
The disclaimers and limitations on liabilities contained in Sections 10.1 and 10.2 shall not apply to the obligations set forth in Section 9 (Indemnification) or a breach of Section 3 (Use Guidelines; Restrictions) or Section 5 (Confidentiality) of this Agreement.

 

11   Term & Termination

11.1  Term of Agreement
This Agreement commences on the Effective Date and continues for as long as the subscription term set forth in any related Order Form (and any subsequent Order Forms) or as otherwise agreed to by Cloudentity in writing, unless earlier terminated as set forth herein.

11.2  Termination for Cause
Either Party may terminate this Agreement for cause: (i) upon thirty (30) days written notice of a material breach of this Agreement by the other Party if such breach remains uncured at the expiration of such period; or (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

11.3  Effects of Termination
Upon expiration or termination of this Agreement all rights to use the Products (including all licensed rights for the Software) granted in this Agreement will immediately cease to exist and Customer must promptly discontinue all use of the Products. Upon a Party’s written request, the other Party will erase, delete or destroy all copies of Confidential Information of the other Party whether or not modified or merged into other materials, and certify in writing to the other Party that such Party has fully complied with these requirements. A Party may retain archived copies of Confidential Information or copies that are incapable of being destroyed because it would be unduly burdensome or cost prohibitive, provided that all such copies remain subject to the restrictions herein for so long as they are retained.

11.4  Outstanding Fees
Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to Cloudentity prior to the effective date of termination. Upon any termination for cause by Customer, Cloudentity shall refund Customer any unused, prepaid fees covering the remainder of the subscription term after the date of termination. If this Agreement is terminated by Cloudentity for cause, Customer shall remain responsible for any payments set forth on any outstanding Order Forms, regardless of whether such amounts have been invoiced or are payable at the time of such termination.

11.5  Surviving Provisions
Any provisions that are by their nature intended to survive termination of this Agreement will continue to survive following termination.

 

12  General Provisions

12.6  Relationship of the Parties
The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties. Neither Party will have the power to bind the other or incur obligations on the other Party’s behalf without the other Party’s prior written consent.

12.7  No Third-Party Beneficiaries
There are no third-party beneficiaries to this Agreement.

12.8  Waiver and Cumulative Remedies
Failure by either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision of this Agreement. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.

12.9  Severability
If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in force and effect.

12.10  Third-Party Services
The Products may be used by Customer to interface with certain third-party services and applications ("Third-Party Services"). Cloudentity makes no warranty regarding the operation or functionality of such Third-Party Services. Cloudentity does not guarantee that the Products will interoperate with any particular Third-Party Service, and Cloudentity’s support obligations set forth in Section 1.5 shall not extend to any Third-Party Services.

12.11  Open Source Software
Certain items of software embedded within the Products are subject to "open source" or "free software" licenses ("Open Source Software"). Some of the Open Source Software is owned by third parties. Nothing in this document limits Customer’s rights or obligations under the terms and conditions of any applicable end user license for the Open Source Software. In no event do any authors of any Open Source Software provide any warranties with respect to such Open Source Software and such authors disclaim liability of any kind for any use of the Open Source Software. The terms of the licenses for the Open Source Software shall not impose any additional restrictions on your use of the Products as permitted by this Agreement or negate or amend any of our responsibilities with respect to the Products.

12.12  Assignment
Neither Party may assign or transfer, by operation of law or otherwise, any of its rights under this Agreement (including its licenses with respect to the Software) to any third party without the other Party’s prior written consent, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, either Party shall have the right to assign this Agreement to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise; provided that such assignment is not to a competitor of the other Party. Unless otherwise specifically agreed to by the non-assigning Party, no assignment by either Party shall relieve the assignor from its obligations pursuant to this Agreement. Any attempted assignment or transfer in violation of the foregoing will be null and void. All provisions of this Agreement shall be binding upon, inure to the benefit of and be enforceable by and against the respective successors and permitted assigns of Cloudentity and Customer.

12.13  Marketing and Publicity
Upon execution of this Agreement, Cloudentity may identify Customer as a customer of Cloudentity on Cloudentity’s website as well as within any written and/or electronic marketing material relating to Cloudentity’s products and/or services. Customer shall not publish or disclose to any third party any opinions relating to, or test results, benchmarking or comparative study involving any Product without the prior written consent of Cloudentity.

12.14  Force Majeure
Neither Party will be liable for any failure in performance due to circumstances beyond such Party’s reasonable control, including without limitation, acts of God; acts of government; flood; fire; earthquakes; civil unrest; acts of terror, strikes or other labor problems (other than those involving such Party’s employees), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within such Party’s possession or reasonable control, and denial of service attacks. For the avoidance of doubt, a force majeure event shall not include (a) financial distress, (b) changes in the market prices or conditions, or (c) a Party's financial inability to perform its obligations hereunder.

12.15  Controlling Law
The validity, construction and performance of this Agreement shall be governed by the laws of the State of Delaware, excluding its conflicts of law rule.

 

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