Terms of Service
Last updated April 26 2022
Noetic Cyber, Inc. Master License Agreement
NOETIC CYBER, INC. (“NOETIC”) IS WILLING TO LICENSE PRODUCT OR ACCESS TO PRODUCT TO THE COMPANY OR ENTITY THAT WILL BE USING OR ACCESSING THE PRODUCT AND THAT YOU REPRESENT AS AN EMPLOYEE OR AUTHORIZED AGENT (“YOU” OR “YOUR”) ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THIS LICENSE AGREEMENT (the “AGREEMENT”). PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE ACCEPTING THIS AGREEMENT ON BEHALF OF YOUR COMPANY OR ENTITY. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, EXECUTING AN ORDER OR PROPOSAL, OR BY USING OR ACCESSING THE PRODUCT, YOU AGREE TO THE TERMS OF THIS AGREEMENT.
- License to Use. Noetic grants You a non-exclusive, non-transferable license to access and use Noetic’s software in machine-readable form on Noetic servers or Your servers as applicable (collectively the “Product”) for Your internal business purposes. All purchased licenses are for annual periods beginning upon purchase unless otherwise stated in the Product Description provided by Noetic. Proof of Value licenses are for 30 days from activation. The Product Description will also describe the authorized number of users, capacity, and any other terms or restrictions and is hereby incorporated into this Agreement. User accounts shall be set up using the actual identity of the user. Any release, revision, or enhancement to the Product or the result of any services performed hereunder that Noetic may furnish to You becomes a part of Product and is governed by this Agreement. The Agreement also governs any renewal or additional purchases.
- SaaS Version. The SaaS version of Product is available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which Noetic shall endeavor to give at least 8 hours notice via the Product and which Noetic shall schedule to the extent practicable during the weekend hours from 9:00 p.m. Friday to 6:00 a.m. Monday Eastern Time), or (b) any unavailability caused by circumstances beyond Noetic’s reasonable control, including without limitation, Internet and telecommunications service provider failures or delays, failures of independent service providers, or denial of service attacks.
- Your Data. Subject to the limited rights granted by You hereunder, Noetic acquires no right, title or interest from You under this Agreement in or to Your data. You hereby grant Noetic the right to perform reviews and general analyses as required of characteristics, usage and quality of Your data. Noetic reserves the right to use data analytics to analyze data across all of our clients, and any information and data generated from use of such analytics shall be owned by Noetic. Any such data will be anonymized and/or used only for aggregated statistics and reports. Noetic shall not (a) modify Your data except as directed by You, (b) disclose Your data except as required by law or as expressly permitted in writing by You, or (c) access Your data except to make the Product and updates available to You, to prevent or address service or technical problems, or at Your request in connection with customer support matters. Upon Your request, Noetic will provide You a copy of Your data at any time during Your license and for thirty (30) days following termination of Your license.
- Fees, Payment, and Renewal. Fees are based on Product purchased and not actual usage. Payment obligations are non-cancelable, and fees paid are non-refundable. Fees are to be paid with thirty (30) days of receipt of correct invoice. Noetic will give You at least 7 days prior notice that Your account is overdue before suspending access to Product or terminating Your license. You shall pay any taxes, including sales, use, personal property, value-added, excise, customs fees, import duties or stamp duties or other taxes and duties imposed by governmental agencies of whatever kind and imposed with respect to all transactions and order under this Agreement including penalties and interest but specifically excluding any income taxes payable by Noetic. Such taxes added to the invoice, as prescribed by applicable law, shall be due and payable by You at the time such invoice is payable. For purchased licenses, the annual term shall automatically renew at the then published rate and restrictions for additional annual terms until terminated by either party at least 30 day prior to expiration of the annual term. However, if the renewal rate and restrictions are less favorable than those You then enjoy, renewal will not be automatic.
- Proprietary Rights and Restrictions. Noetic and/or its licensors retains all right, title, and interest in the Product, and no title to the Product or any intellectual property or other rights therein, are transferred to You by virtue of this Agreement other than as specified herein. No right, title or interest to any trademarks, service marks or trade names of Noetic or its licensors is granted by this Agreement. Product is copyrighted and contains proprietary information and trade secrets belonging to Noetic and/or its licensors. You will not use the Product for any purpose other than for Your own internal business purposes, make copies of the software, or exceed the scope of Your license grant. You agree not to cause or permit the reverse engineering, reverse assembly, or reverse compilation of the Product or otherwise attempt to derive source code from the Product. You may not create derivative works based upon all or part of Product nor a) copy, frame or mirror any part or content of the Product, b) use Product as a service to Your customers, or (c) copy any features, functions or graphics of the Product. You may not transfer, lend, lease, assign, sublicense, and/or make available through time sharing, the Product, in whole or in part. You grant Noetic all right, title and interest in any suggestions You make to Noetic related to the Product.
- Confidentiality. The parties agree that when disclosing information under this Agreement, the disclosing Party will be the “Disclosing Party” and the receiving Party will be the “Receiving Party.” The term “Confidential Information” includes: (a) technical, financial, commercial or other proprietary information including without limitation Product roadmaps, pricing, Your data, software code and documentation, techniques or systems of the Disclosing Party and (b) information or data that is confidential and proprietary to a third party and which is in the possession, custody or control of the Disclosing Party. The Receiving Party will not disclose any of the Disclosing Party’s Confidential Information to any third party except to the extent it can be documented that any such Confidential Information is in the public domain and generally available for use by and disclosure to the general public without any charge, restriction or license, or is required to be disclosed by any authority having jurisdiction so long as the Disclosing Party is provided reasonable notice of such disclosure prior to its release by the Receiving Party. Each Party’s respective Confidential Information shall remain their own property.
- Limitations. NOETIC AND ITS THIRD PARTY LICENSORS MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EXCEPT IN THE CASE OF SECTION 8 BELOW, NOETIC’S AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PERFORMANCE OF PRODUCT, SHALL NOT EXCEED $25,000, WITHOUT REGARD TO WHETHER A CLAIM IS BASED ON CONTRACT OR TORT, INCLUDING NEGLIGENCE. IN NO EVENT SHALL NOETIC OR ITS LICENSORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES RESULTING FROM LOSS OF PROFITS, DATA, OR BUSINESS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF NOETIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOETIC DOES NOT WARRANT THAT THE PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES NOETIC MAKE ANY WARRANTY WITH RESPECT TO THE TRANSMISSION OF INFORMATION OVER THE INTERNET, OR ANY RESULTING IMPAIRMENT OR DISRUPTION OF YOUR ACCESS TO THE PRODUCT.
- Indemnification. Noetic agrees to defend You from and against any third party claim or action based on any alleged infringement of any United States patent, copyright, trade secret, or other proprietary right of a third party as a result of the use of the Product according to the terms and conditions of this Agreement, and Noetic agrees to indemnify You from any costs and/or damages awarded against You in any such infringement claim or action or settlement thereof, provided that (i) Noetic is promptly notified in writing of such claim, (ii) You grant Noetic sole control of the defense and any related settlement negotiations, and (iii) You cooperate with Noetic in defense of such claim. Notwithstanding the foregoing, Noetic shall have no liability to You if the infringement results from use of the Product in combination with software not provided by Noetic that causes the infringement or modifications to the Product not made by Noetic. The foregoing states the entire liability of Noetic with respect to infringement of any patents, copyrights, trade secrets, or other proprietary rights by the Product or any part thereof.
- Export Regulation and Government Rights. You agree to comply strictly with all U.S. export control laws, including the U.S. Export Administration Act and its associated regulations. Product is prohibited for export or re-export to the list of terrorist supporting countries or to any person or entity on the U.S. Department of Commerce Denied Persons List or on the U.S. Department of Treasury’s lists of Specially Designated Nationals, Specially Designated Narcotics Traffickers or Specially Designated Terrorists. If Product is being shipped by Noetic, then it is exported from the United States in accordance with the Export Administration Regulations. Diversion contrary to U.S. law is prohibited. If You are licensing Product or its accompanying documentation on behalf of the U.S. Government, it is classified as “Commercial Computer Product” and “Commercial Computer Documentation” developed at private expense, contains confidential information and trade secrets of Noetic and its licensors, and is subject to “Restricted Rights” as that term is defined in the Federal Acquisition Regulations (“FARs”). Contractor/Manufacturer is: Noetic Cyber, Inc., and its subsidiaries, Waltham, Massachusetts, USA.
- General. This Agreement is made under the laws of the Commonwealth of Massachusetts, USA, excluding the choice of law and conflict of law provisions, and You expressly consent to sole jurisdiction and venue for any litigation arising from or relating to this Agreement shall be an appropriate federal or state court located in Massachusetts. This Agreement is the entire agreement between You and Noetic relating to Product and supersedes all prior and contemporaneous or other oral or written communications, proposals, and representations with respect to its subject matter, as well as without limitation terms and conditions attached to any purchase order. No modification to this Agreement is binding unless in writing and signed by a duly authorized representative of each party. The waiver or failure of either party to exercise any right provided for herein shall not be deemed a waiver of any further right hereunder. If any provision of this Agreement is held invalid, all other provisions shall remain valid unless such validity would frustrate the purpose of this Agreement, and this Agreement shall be enforced to the full extent allowable under applicable law. All licenses granted hereunder shall terminate upon expiration of the term or Your breach of this Agreement. Upon termination of Your license, you agree to cease using and destroy and expunge Product in your control directly or indirectly and certify as to such in writing to Noetic. The parties will have 30 days from notice of breach to cure a breach hereunder. Neither party shall be liable for the failure to perform its obligations under this Agreement due to events beyond such party’s reasonable control including, but not limited to, strikes, riots, wars, fire, acts of God or acts in compliance with any applicable law, regulation or order (whether valid or invalid) of any court or governmental body. Neither party may assign its rights, duties or obligations under this Agreement without the prior written consent of the other party and any attempt to do so shall be void and of no effect; except to a successor by merger, acquisition or restructuring that assumes the right and duties of this Agreement. The following sections survive termination or expiration of this Agreement: Fees and Payment, Proprietary Rights and Restrictions, Confidentiality, Limitations, and General. Rev. 11-18-21