Managed Security Service Provider
This Managed Security Service Provider (this “Agreement”) is a legal agreement made and entered into as of the date set forth in the applicable Order or SOW (the “Effective Date”), by and between Sixgill Inc., (“Sixgill”), and the managed security service provider set forth in the Order or SOW (“MSSP”).
WHEREAS, MSSP desires to obtain a right to use Sixgill Solution (as defined below) for internal purposes as well as receive Services (as defined below) in respect thereto, in order to provide Managed Services (as defined below) and Derivatives (as defined below) using Sixgill Solution to MSSP’s End Users (as defined below); and Sixgill is willing to grant such right to MSSP under the terms and conditions as set forth in this Agreement:
NOW, THEREFORE, the parties agree as follows:
1.1. “Authorized Users” means those principles, employees, consultants and service providers whose duties require access or use of the Solution as part of their performance of the services for MSSP strictly in fulfillment of its rights under this Agreement. MSSP shall be liable for any act or omission of its Authorized Users in breach of this Agreement.
1.2. “Deliverables” means any output content, results, analysis or data obtained through or from the Solution or the Services; Sixgill shall own any and all rights in all Deliverables.
1.3. “Derivatives” means any derivative works of Deliverables or insights based thereof, in each case that include a significant added value by MSSP over the original Deliverables.
1.4. “End User” means a person or entity, located in the Territory, that receives any deliverables or Managed Services from MSSP or anyone on its behalf for internal business purposes or personal use and not for resale, license, installation, or distribution to third parties.
1.5. “Intellectual Property Rights” Shall include (but shall not be limited to), the following rights, pertaining to the Sixgill Solution, as applicable: (a) all inventions, and all patents, patent applications, together with all reissuances, continuations, continuations-in-part, divisions, revisions, extensions and re-examinations of any of the above, (b) all copyrightable works, whether registered or unregistered, (c) all trade secrets, know-how and, (d) all trademarks, whether registered or unregistered, all trade names and applications therefore and all service marks, and logos (“Marks”), (e) all computer software, both source and object code including data and related documentation, flow charts, diagrams, descriptive texts and programs, computer printouts, underlying tapes, computer databases and similar items.
1.6. “Managed Service(s)” means any managed services provided by MSSP to End Users that include the Derivatives or are based on the Deliverables or the Services. The Managed Services shall have significant added value over the Deliverables and Services, and shall in any event not include the data stream accessed by MSSP’s in its use of the Solution.
1.7. “Marks” or “Sixgill Trademarks” means the trademarks and trade names used by Sixgill as shall be provided by Sixgill from time to time.
1.8. “Order” means a written order for use and access to the Solution and/or provision of Services, signed by both parties.
1.9. “Price List” means Sixgill’s price list for the Solutions, which Sixgill may change from time to time at its sole discretion.
1.11. “Services”: means all the services Sixgill shall provide under this Agreement as provided by Sixgill as set forth in an SOW, including the grant of right to use the Solution under Section 2.1 of this Agreement as well as maintenance and support services provided in connection therewith.
1.12. The “Sixgill Solution” or the “Solution” means the Solution listed in the Order, which shall also include the API provided by Sixgill. For the avoidance of doubt, Sixgill has and/or may have additional and/or other products, including products that share functionalities and/or characteristics of the Solutions and/or products, which are or will be marketed under the same name but operate on different and/or non-compatible operating systems and which are not included within this Agreement unless expressly stated otherwise.
1.13. “SOW” means a written statement of work for Sixgill’s Services, provided by Sixgill and signed by MSSP or otherwise signed by both parties.
1.14. “Territory” means the territor(ies) listed in the Order or SOW (if any) only, unless otherwise approved in writing by Sixgill.
2. Right to Use the Solution
2.1. Grant of Right. Subject to the terms and conditions of this Agreement, Sixgill hereby grants to MSSP a, non-exclusive, non-transferable, non-assignable, non-sublicensable limited right authorizing MSSP (including its Authorized Users), to use the Sixgill Solution in accordance with the Documentation (as defined below) solely in order to provide the Managed Services to End Users. The license granted herein may be subject to any scope of use set forth under the Order or SOW. In the event that the Order or SOW provides that the Solution is on-premise, the license herein shall include the right to install the Solution (in object code only) in the installation environment specified in the Order or SOW, or as otherwise instructed by Sixgill in accordance with Section 5.2 of this Agreement. Use of the API provided as part of the Solution shall be subject to those additional terms available at https://www.cybersixgill.com/api-restrictions/.
2.2. End Users. MSSP may not grant End Users or any third party access to the Solution and shall not provide them with Deliverables without significant added value of its own over the Original Deliverables.
2.3. Restrictions. Other than the right expressly granted under this Agreement, no other rights or interests whatsoever are transferred or granted by Sixgill to MSSP, and Sixgill retains any and all rights not expressly granted hereunder. Without limiting the foregoing and without derogating from the rights expressly granted to MSSP hereunder, MSSP shall not, directly or indirectly:
2.3.1. Reverse engineer, disassemble, decompile, decode or otherwise attempt to gain access to the source code of Sixgill’s Solution or any part thereof; Combine Sixgill’s Solution or any part thereof with, or incorporate Sixgill’s Solution or any part thereof in, any other programs; modify, translate, adapt, copy or otherwise create derivative works or improvements of the or alter Sixgill Solution or any part included therewith or any part thereof;
2.3.2. Use the Sixgill Solution, Deliverables or Derivatives for any purpose other than the purposes of this Agreement;
2.3.3. Make statements, warranties or representations concerning the Sixgill Solution or Services that exceed or are inconsistent with the corresponding documentation provided to MSSP by Sixgill;
2.3.4. Use the Sixgill Solution (including make any copies of), or any results arising from the operation of the Sixgill Solution, including any Deliverables, or any results of the Services or provide Managed Services: (i) in violation of any applicable law, regulation or rule; (ii) beyond the scope of the rights granted by Sixgill pursuant to this agreement; (iii) in order to harass any third party; (iv) in any manner that infringes the Intellectual Property Rights of any third party;
2.3.5. License, sublicense, rent, lease, lend, sell, assign, distribute, publish, transfer or otherwise make available to any other person the Sixgill Solution or Deliverables (other than that portion of the Deliverables included in the Derivatives);
2.3.6. Collect or store Deliverables for the purpose of compiling a database or preparing a data-lake;
2.3.7. License, sublicense, rent, lease, lend, sell, assign, distribute, publish, transfer, use or otherwise make available to any other person any information generated by or results arising from the operation of the Solution, including the Deliverables, other than providing the Derivatives to End Users as part of the Managed Services;
2.3.8. Use the Sixgill Solution to access any confidential or other non-public information of any third party without such third party’s permission;
2.3.9. Use the Sixgill Solution for purposes of competitive analysis of Sixgill’s Solution or the development of a competing solution or service;
2.3.10. Use the Sixgill Solution in any manner that could harm, infect, take over, disable, overburden, or otherwise impair any of Sixgill’s computer systems; or
2.3.11. Allow the Solution, Deliverables or Derivatives to be used for or access thereto provided to any entity or person involved in, or in charge of, homeland security or counter-terrorism and shall not Ship, transfer, or export the Solution, Deliverables or Derivatives or provide the Managed Services or any component thereof or use the Solution or any Deliverable in any manner, prohibited by law, including without limitation to, sell, distribute, export or download the Solution, Deliverables or Derivatives: (a) into (or to a national or resident of) Cuba, Iran, Iraq, Libya, North Korea, Sudan, Lebanon or Syria, (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals, (c) to any country to which such export or re-export is restricted or prohibited, or as to which the U.S. or Israeli government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval, (d) otherwise in violation of any export or import restrictions, laws or regulations of the U.S. or Israel or any foreign agency or authority. MSSP agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list.
3. Change And Discontinuation Of Solution. Sixgill shall have the right, in its sole discretion, without liability to MSSP, to change the design, or discontinue developing, producing, licensing or distributing any of the Solution or change its data sources.
4.1. Fees. In consideration for the rights granted hereunder, MSSP shall pay to Sixgill the fees set forth in the applicable Order or SOW, as the case may be (the “Fees”). Unless otherwise agreed in writing by Sixgill, Fees shall be invoiced in advance and payments shall be made within 30 days of Sixgill’s invoice. Payments not received by Sixgill when due shall be subject to a late payment charge at the rate of one percent (1%) per month or the highest amount permitted by law, whichever is less, pro-rated to the actual period of delay. In addition to any other rights available under law, Sixgill may cease the operation of the Solution or automatically uninstall the Solution in any event of failure to timely pay for such Services.
4.2. Taxes. The Fees paid by MSSP are exclusive of all taxes, customs, levies, tariffs, duties or other charges, domestic or foreign (except for taxes imposed on Sixgill’s net income). Such taxes, if any, shall be paid by MSSP. If such taxes are paid by Sixgill they shall be fully reimbursed by MSSP. If any withholding duty shall be applicable to any payment due to Sixgill, then, the payment shall be grossed up so that Sixgill shall receive the same amount had no such duty been in existence.
5. Maintenance and Support.
5.1. Support Services. MSSP will ensure that only MSSP’s engineers who have been specifically authorized by Sixgill will request technical assistance from Sixgill’s technical support specialists.
5.2. Installation. In the event that Sixgill shall instruct MSSP to install the Solution, MSSP shall install the Solution in accordance with Sixgill’s instructions. MSSP will be responsible for the installation, including without limitation: (a) all configurations (including the installation environment and other third party systems) in connection therewith; and (b) for providing Sixgill with (as well as procuring for Sixgill the right to access and use) all information, materials, facilities, and equipment reasonably requested by Sixgill for the purposes of installation.
6.1. MSSP’s Obligations. MSSP agrees to conduct business in a manner that reflects favorably at all times on the Solution, goodwill and reputation of Sixgill and avoid deceptive, misleading or unethical practices. In addition to the extent MSSP offers the End Users Application Security Management services using the Solution or any of the Deliverables, MSSP is responsible for obtaining all consents and rights from the End Users for the access by Sixgill to the End User’s assets as and to the extent required and prescribed by Sixgill so as to allow Sixgill to execute such services.
6.2. Services Manager. MSSP shall appoint a qualified person to serve as a liaison and chief point of contact between MSSP and Sixgill for all business, technical issues and updates.
6.3. Marks. The Marks belong exclusively to Sixgill. MSSP shall supply the Derivatives and any documentation related to the Managed Services to End Users with credit to Sixgill by stating “Powered by Sixgill” or such other designation as instructed by Sixgill in writing. MSSP shall indicate to the public that it is an authorized MSSP of Sixgill’s Solution(s) but will not imply that Sixgill endorses the Managed Services or Derivatives. All representations of Sixgill Trademarks that MSSP intends to use shall first be submitted to Sixgill for approval of design, color, and other details, which approval shall not be unreasonably withheld. MSSP agrees with respect to each of these trademarks to include in each use (such as an advertisement or brochure) such details which shall inform that it is Sixgill’s authorized MSSP. If any of the Marks are to be used in conjunction with another trademark, then Sixgill’s Mark shall be presented equally legibly, equally prominently, and of at least the same size as the other mark but nevertheless separated from the other so that each appears to be a mark in its own right, distinct from the other mark. Effective upon the termination of this Agreement, MSSP shall cease to use all Marks.
6.4. Training. If and to the extent provided in the applicable Order, Sixgill shall provide to MSSP basic training services in accordance with Sixgill’s normal practices, as may be more fully set forth in the applicable Order or SOW. MSSP shall, at MSSP’s sole cost and expense, participate in relevant, appropriate and applicable Sixgill sales and technical training courses, ensuring that all relevant MSSP personnel attend such training.
6.5. Information. Pursuant to procedures determined by Sixgill from time to time, MSSP shall keep Sixgill informed as to: (a) problems encountered and resolutions proposed and shall communicate promptly to Sixgill any and all suggested modifications, design changes or improvements of the Solution suggested by any employee or agent of MSSP; (b) any market information which comes to its attention regarding Sixgill, the Solution, Sixgill’s market position, or the continued competitiveness of the Solution in the marketplace. MSSP will confer with Sixgill from time to time, at Sixgill’s request, on matters relating to market conditions, MSSP forecasts and solution planning. MSSP further agrees that Sixgill shall be and remain the exclusive owner of such information.
6.6. Reporting. MSSP shall provide to Sixgill written sales reports for Derivatives and/or Managed Services on a monthly basis. Such reports shall include End User name, billing location, End User’s jurisdiction, and other information as may be requested by Sixgill from time to time. At Sixgill’s request, MSSP shall provide Sixgill with periodic forecasts estimating value and closing dates of sales of the Derivatives and Managed Services, as Sixgill shall reasonably request from time to time, but not more frequently than semi-annually. MSSP will regularly update prospect and lead information within Sixgill’s CRM system (or provide the necessary inputs that could be exported into such CRM system).
6.7. Non-competition. During the Term and for twenty four (24) months thereafter, MSSP shall not, directly or indirectly, develop any product that competes with the Solution or enter into any engagement or arrangement in respect of the development or commercialization of products that compete with the Solution.
6.8. Documentation. Sixgill shall, at no additional charge, provide MSSP with one copy of its standard package of documentation (in the English language) related to the use of the Solution (“Documentation”). If Sixgill modifies the Documentation for general distribution, Sixgill shall provide all of the modifications to MSSP at no additional charge. All translations of Documentation which Sixgill may provide (or which MSSP may have prepared) will be at MSSP’s sole expense.
7. Audit. During the term of this Agreement and for at least two (2) years thereafter, MSSP agrees to keep all usual and proper records indicating to any relevant information relating to the use of the Solution or provisioning of Managed Services or Derivatives and with any additional information required by Sixgill (including with respect to the usage, End Users, etc.). Sixgill may cause an audit to be made of MSSP records in order to verify accurate performance of this Agreement by MSSP (including the calculation of Fees). Prompt adjustment will be made to compensate for any errors or omissions disclosed by such audit. Any such audit will be conducted no more than once a year by an independent certified accountant selected by Sixgill. MSSP agrees to provide Sixgill’s designated auditor and any assistance required with access to the relevant records. The cost for any such audit will be paid for by Sixgill unless the amount of any underpayment revealed by such audit for the period being audited is greater than five percent (5%) of the amount that should have been paid for such period, in which case MSSP agrees to pay Sixgill for the costs incurred by Sixgill for such audit.
8.1. For a period of 60 days (“Warranty Period”) following the provision of the Sixgill Solution, the Sixgill Solution shall substantially perform in accordance with Sixgill’s applicable technical user guide provided as part of the Documentation. The sole and exclusive remedy of MSSP, for any breach of said warranty, shall be to obtain during the Warranty Period, from Sixgill the repair or replacement of any defective Sixgill Solution, at Sixgill’s sole discretion, with respect to the specific function of Sixgill Solution affected by such breach. The following are excluded from the foregoing warranty: (i) insignificant defects, such as errors that can be easily corrected and will not show up as performance defects or otherwise result from any such modification, alteration or enhancement; (ii) defects discovered in any component of the Sixgill Solution that have been modified, altered, or enhanced without Sixgill’s prior written consent; (iii) defects resulting from or occurring from any act or omission of MSSP, its failure to use the Solution in accordance with Documentation, (iv) defects due to an end user’s system or any unauthorized third party software or hardware that are operated or incorporated into the Solution; or (v) MSSP’s systems or network used to access the Solution. No warranty is provided in respect of Deliverables provided through the Sixgill Solution and such are provided on an “as-is” basis.
8.2. Each party warrants and represents to the other party that it has the full corporate power and authority required to enter into this Agreement and to carry out its undertakings and obligations hereunder. MSSP hereby warrants and represents that: (i) it has all required permissions, authorizations and approvals to request, collect and use any and all Deliverables and any data and content requested by MSSP (including on behalf of End User) as part of the Services and all consents and rights from End Users, to the extent required, to provide all Services to End Users; and (ii) all Services that involve the retrieval of personal information are procured on behalf of the data controller (i.e. MSSP or its End User).
9. Disclaimer. SIXGILL’S EXPRESS WARRANTIES IN THIS AGREEMENT ARE IN LIEU OF AND TO THE EXCLUSION OF ALL OTHER WARRANTIES, CONDITIONS OR OTHER TERMS OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE RELATING TO ANYTHING SUPPLIED OR SERVICES PROVIDED UNDER OR IN CONNECTION WITH THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, ANY TERMS AS TO THE CONDITION, QUALITY, PERFORMANCE, OR FITNESS FOR PURPOSE OF THE SIXGILL SOLUTION, SERVICES, UPDATES OR DELIVERABLES, OR ANY PART THEREOF.
10. Limitation of Liability; Indemnification
10.1. Indirect Damages. NEITHER PARTY WILL BE LIABLE TOWARDS THE OTHER PARTY UNDER ANY LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT OR CONTRACT) FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT OR PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOST DATA OR LOST PROFITS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.2. Cap on Liability. IN NO EVENT WILL SIXGILL’S (AND ITS OFFICERS’, DIRECTORS’, AGENTS’ AND EMPLOYEES’) LIABILITY IN CONNECTION WITH THE SOLUTIONS, DELIVERABLES, SERVICES OR THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID TO SIXGILL UNDER THIS AGREEMENT FOR THE SOLUTIONS OR SERVICES DURING THE SIX MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY. THESE LIMITATIONS APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE.
10.3. Exclusions. THE LIMITATION OF LIABILITY SET FORTH IN SECTIONS 10.1 AND 10.2 UNDER THIS AGREEMENT SHALL NOT INCLUDE ANY BREACH OF INTELLECTUAL PROPERTY, BREACH OF CONFIDENTIALITY OR INDEMNITY OBLIGATIONS.
11. External Sites. The Sixgill Solution may contain links to third-party websites (“External Sites”). These links are provided solely as a convenience to MSSP and not as an endorsement by Sixgill of the content on such External Sites. The content of such External Sites is developed and provided by others. MSSP should contact the site administrator or webmaster for those External Sites if MSSP has any concerns regarding such links or any content located on such External Sites. Sixgill is not responsible for the content of any linked External Sites and does not make any representations regarding the content or accuracy of materials on such External Sites. MSSP should take precautions when downloading files from all websites to protect MSSP’s computer from viruses and other destructive programs. If MSSP decides to access linked External Sites, MSSP does so at MSSP’s own risk.
12. Third Party Software. The Solution may include third party software components that are subject to open source and/or pass-through commercial licenses and/or notices (such third party programs, "Third Party Software" and "Third Party Software Terms and Notices", respectively). Some of the Third Party Software Terms and Notices may be made available to MSSP in the Solution, its Documentation or via a supplementary list provided by Sixgill. Any covenants, representations, warranties, indemnities and other commitments with respect to the Solution in this Agreement are made by Sixgill and not by any authors or suppliers of, or contributors to such Third Party Software. Any use of Third Party Software is subject solely to the rights and obligations under the applicable Third Party Software Terms and Notices.
13.1. Sixgill’s Indemnification. Sixgill shall defend and hold MSSP harmless against any third party claim alleging that the Solution, when used in accordance with license granted to MSSP herein, infringes U.S. patents or copyrights. Sixgill shall indemnify MSSP against any damage that is finally awarded in judgment or settlement as a result of such claim. Sixgill shall not have any liability or indemnification obligation if the claim arises from the Deliverables.
13.2. MSSP’s Indemnification. MSSP shall defend and hold Sixgill harmless against any third party claim in respect of MSSP’s use of the Deliverables or Services: (ii) the offering of the Derivatives provided as part of the Managed Services. MSSP shall indemnify Sixgill against any damage that is finally awarded in judgment or settlement as a result of such claim.
13.3. Conditions. Indemnifying party’s indemnification obligation shall be subject to: indemnified party providing written notice of the claim promptly after becoming aware thereof; indemnifying party having sole control over the defense and settlement of the claim, provided that the settlement shall not attribute any liability to indemnified party; indemnified party shall provide reasonable assistance in the defense at indemnifying party’s expense; and indemnified party may participate in the defense with counsel of its choice at its own expense.
13.4. Exclusions. Sixgill’s obligations set forth in Section 13.1 shall not apply to the extent the infringement is caused by: (i) the Deliverables, Derivatives or Managed Services; (ii) modifications to the Sixgill Solution made by any person or entity except for Sixgill or anyone on its behalf,; (iii) the design or specifications required or specifically directed by MSSP; and/or (iv) the use of the Sixgill Solution not in compliance with the documentation and specifications thereof; and/or (v) combination, utilization or integration of the Sixgill Solution with MSSP’s or with other third parties’ equipment, network, platform, products and/or applications; and/or (vi) from the use of the Sixgill Solution in a manner for which it was not intended.
13.5. Sixgill’s Optional Remedial Actions. If a claim alleging infringement pursuant to Section 13.1 of this Agreement is brought or Sixgill believes one may be brought, Sixgill shall have the option at its own expense to (i) modify the Sixgill Solution to avoid the allegation of infringement, while at the same time maintaining substantial compliance of the Sixgill Solution with the specifications and other requirements of this Agreement; or (ii) obtain for MSSP at no cost to MSSP a right to continue using the Sixgill Solution in accordance with this Agreement; or (iii) replace the infringing Sixgill Solution by providing a similar non-infringing product, which shall function in a substantial equivalent manner as the Sixgill Solution.
14. Confidential Information
14.1. Definitions. For the purposes of this Section, the party disclosing Confidential Information (as hereinafter defined) is referred to as the “Disclosing Party” and the party receiving confidential information is referred to as “Recipient“. “Confidential Information” means any information, technical data, or know-how relating to a party’s business, research, products, hardware, software, services, development, inventions, processes, engineering, marketing, techniques, pricing, internal procedures, business and marketing plans or strategies, finances, employees and business opportunities. Without limiting the generality of the foregoing, any information related to the Sixgill Solution or the Services shall be deemed as Sixgill Confidential Information. Notwithstanding the foregoing, Confidential Information does not include information, technical data or know-how that Recipient can prove: (i) was in its possession at the time of disclosure; (ii) was generally known in the industry prior to its disclosure or becomes generally known in the industry after its disclosure not as a result of any act or omission of Recipient; (iii) is approved for release by written authorization of the Disclosing Party; or (iv) is disclosed to Recipient by a third party not subject to any obligation of confidentiality.
14.2. Use. Recipient agrees not to use the Confidential Information of the Disclosing Party for any purposes except as necessary to fulfill its obligations under this Agreement. Recipient agrees not to disclose the Confidential Information of the Disclosing Party except to those of its employees or agents who have a need to know the Confidential Information in order to fulfill Recipient’s obligations under this Agreement, and where such employees and/or agents shall be bound by a written contractual restriction covering the Confidential Information that is not less restrictive or protective than the terms of this Section. Notwithstanding the foregoing, Recipient may disclose the Disclosing Party’s Confidential Information to the extent required by a valid order by a court or other governmental body or by applicable law; provided, however, that Recipient will use all reasonable efforts to minimize such disclosure to the minimum extent possible, and provided further, that Recipient shall notify Disclosing Party of the obligation to make such disclosure in advance so that Disclosing Party will have a reasonable opportunity to object to such disclosure. Recipient agrees that it shall treat the Disclosing Party’s Confidential Information with the same degree of care as it accords to its own Confidential Information; provided that in doing so, in no event shall Recipient exercise less than reasonable care. Recipient agrees to advise the Disclosing Party in writing of any misappropriation or misuse by any person of the Disclosing Party’s Confidential Information of which Recipient may become aware.
14.3. Return of Materials. Upon termination or expiration of the applicable Order (unless a subsequent Order is entered into) or this Agreement, any materials or Confidential Information of Disclosing Party which are furnished to Recipient, and all copies thereof, at the Disclosing Party’s option, will either be: (i) promptly returned to the Disclosing Party; or (ii) destroyed by Recipient (with Recipient providing written certification of such destruction).
14.4. Remedies. Recipient acknowledges and agrees that the Disclosing Party shall be entitled to appropriate equitable relief in the event of any breach, threatened breach, or intended breach of this Agreement by Recipient. Such remedies shall be in addition to all other remedies available at law or in equity.
15. Intellectual Property Rights
15.1. IP Ownership. Sixgill owns and shall retain any and all Intellectual Property Rights in and to the Sixgill Solution, Deliverables, the Sixgill Trademarks and to Sixgill’s Confidential Information, and to any and all customizations, derivatives, modifications, Updates and upgrades made thereto. Without derogating from the foregoing, subject to MSSP’s performance of its obligations under this Agreement, any manual materials produced by MSSP for its End Users, to the extent that such materials are based, amongst others, on the Deliverables, including any conclusions, customizations, derivatives and modifications made thereto by MSSP, shall be solely owned by MSSP.
15.2. Use of Confidential Information. Neither party shall integrate or merge any of the other party’s Confidential Information into any of its own products, other than as necessary and intended under this Agreement. Each party shall refrain from embodying any portion of the other party’s Confidential Information in any patent application filed by or on behalf of the other party, and shall not use it to design around or work around the patents of such other party, or to otherwise misappropriate a trade secret or other Confidential Information of the other party.
16. Term and Termination
16.1. Term. This Agreement shall enter into force on the Effective Date, and shall remain in force for the term of the applicable Order or SOW, as the case may be, unless terminated earlier in accordance with the termination provisions hereof.
16.2. Termination. Each party shall have the right to terminate this Agreement as follows:
16.2.1. Termination for Breach. Upon thirty (30) days’ written notice, if a party is in breach of any obligation under this Agreement and the breaching party fails to remedy such breach within such notice period.
16.2.2. Termination for Insolvency. Immediately upon written notice in the event that: (i) Bankruptcy or liquidation procedures will be initiated by or against the other party and shall not be cancelled within thirty (30) business days provided such procedures prevent such party from fulfilling its undertakings under this Agreement; or: (ii) a receiver for the other party’s entire property or substantial part thereof shall be appointed and the appointment shall not be cancelled within thirty (30) business days and prevents such party from fulfilling its undertakings under this Agreement.
16.3. Effects of Termination. Upon termination or expiry of this Agreement, the following rights granted hereunder, shall terminate, as follows:
16.3.1. Rights. All rights granted to MSSP hereunder shall immediately terminate unless explicitly set forth otherwise hereunder; and MSSP shall immediately discontinue the use of any Sixgill Solution and Confidential Information proprietary to Sixgill and return to Sixgill and/or, at Sixgill’s request, destroy all copies thereof. In any event, upon termination of this Agreement, for any reason, MSSP shall cease all display, advertising, and use of all Sixgill Marks and will not thereafter use, advertise, or display any such names, trademarks, logos, or designations.
16.3.2. Payments. For the avoidance of doubt, termination of this Agreement for any reason shall not relieve MSSP from its obligation to pay Sixgill any outstanding payments due under this Agreement.
16.3.3. Survival. The following provisions shall survive termination and shall remain in full force and effect thereafter: Sections 1, 2.3, 4, 6.7, 7, 8.3, 9-15, 16.3 and 17-18.
17. Governing Law; Dispute Resolution
This Agreement shall be governed by, and shall be construed in accordance with, the laws of the State of New York, USA without giving effect to its conflict of laws principles. All disputes arising out of or in connection with this Agreement or the Solutions or Services shall be exclusively settled by the Federal and State courts of New York, USA and each party hereby submits itself to the exclusive jurisdiction of these courts.
18.1. Relationship of the Parties. Each of the Parties shall at all times during the term of this Agreement be considered, act as, and shall represent itself to be, an independent contractor, and not an agent or employee of the other. No employment relationship shall exist or be construed to exist between each of the Parties and the employees of the other party. Neither party shall be authorized to bind, commit or assume any obligations or incur any liability on behalf of the other party, without the other party’s prior written consent.
18.2. Public Release. Neither party shall make any public announcements or issue any press releases with respect to this Agreement or otherwise regarding the relationship hereto without the prior written approval of the other party. Sixgill may refer to MSSP as an MSSP and user and display its name and logo on Sixgill’s website and in its presentations.
18.3. Entire Agreement. This Agreement is the complete, final and exclusive statement of the terms of the agreement between the Parties regarding the subject matter hereof and supersede any and all other prior or contemporaneous agreements or understandings, whether written or oral, between them relating to the subject matter hereof. This Agreement may not be modified except in writing executed by both Parties. The terms and conditions of this Agreement shall prevail notwithstanding any conflict with the terms and conditions of any purchase order, acknowledgment or other instrument submitted by either of the Parties, unless such instrument expressly stipulates a change of this Agreement and is executed by both Parties.
18.4. Assignment and Transfer. Neither party shall be entitled to assign or transfer all or any of its rights, benefits, and obligations under this Agreement without the prior written consent of the other party. Notwithstanding the foregoing, Sixgill may, at its discretion, assign and transfer all of its rights and obligations herein in connection with any merger, consolidation, reorganization or sale of all or substantially all of its assets.
18.5. Notices. Any notice given by one party to the other shall be deemed properly given if specifically acknowledged by the receiving party in writing or when delivered to the recipient by hand, registered mail, email with receipt confirmation or special courier during normal business hours to the following addresses (or such other address as may be notified in writing from time to time by either party):If to MSSP, to:
the address, phone number and email set forth in the Order or SOW.
If to Sixgill, to:
Attention: [please complete]
Address: [please complete]
Notices shall be deemed to be received on the first business day following receipt. Each communication and document made or delivered by one party to another pursuant to this Agreement shall be in the English language.
18.6. Waivers. A waiver of any default hereunder or of any of the terms and conditions of this Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition, but shall apply solely to the instance to which such waiver is directed. The exercise of any right or remedy provided in this Agreement shall be without prejudice to the right to exercise any other right or remedy provided by law or equity, except as expressly limited by this Agreement.
18.7. Severability. If any term or provision of this Agreement will be found to be invalid, illegal or unenforceable, such term or provision shall be deemed modified to the extent necessary to make the same valid and operative, or if it cannot be so modified, then eliminated, and the validity, legality, or enforceability of the remaining terms and provisions will not in any way be affected or impaired thereby.
18.8. Sections and Headings; Interpretation. The sections and headings contained in this Agreement are for ease of reference only and shall not in any way affect the meaning or interpretation of the Agreement. Any reference to this Agreement is deemed as a reference to this Agreement.
18.9. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. This Agreement is executed in the English language.
18.10. Force Majeure. Neither party shall be liable for delays or failure to meet its obligations pursuant to this Agreement due to causes beyond the party’s reasonable control.
18.11. Expenses. Each party shall bear its respective expenses incurred in completing its responsibilities under this Agreement.
Last updated: May 23, 2023