Policies

End User Agreement

This End User Assessment Agreement (“Agreement”) is entered into by and between Appsec

Phoenix, Inc., a Company incorporated in England and Wales with offices at 152 124 City

Road, EC1V 2NX London, UK, (“Appsec Phoenix”) and the Customer entity identified on an

order referencing this Agreement (“Customer”). The parties to this Agreement may be

referred to as a “Party” singularly or the “Parties” collectively. In consideration of the

promises and mutual agreements contained herein, and other good and valuable

consideration, the receipt and sufficiency of which are hereby acknowledged, and intending

to be legally bound hereby, Appsec Phoenix and Customer agree as follows:

 

  1.     Definitions.

 

“Affiliate” means an entity controlled by, controlling, or under common control by a Party

during the period such control exists. For the purposes hereof “control” means the power to

direct the operation, policies, and management of an entity through the ownership of more

than fifty percent (50%) of the voting securities of such entity, by contract, or otherwise.

“Aggregated Data” means Statistical Data that is aggregated with Assessment results of other

parties and does not allow for the identification of an Application or Customer.

“Application(s)” means a supported software application, owned by Customer and/or its

Affiliates (provided that the Application may contain third party software components

licensed by Customer and/or its Affiliates) or (ii) an Application licensed by Customer from a

third party, which is designated for Assessment by Customer and composed of one or

multiple components.

“Components(s)” means a supported software element (repository, web api…), owned by

Customer and/or its Affiliates (provided that the Application may contain third party software

components licensed by Customer and/or its Affiliates) or (ii) an Application licensed by

Customer from a third party, which is designated for Assessment by Customer.

 

“Assess(es)(ed)(ment)” means the analysis performed by Appsec Phoenix on an Application,

Components or a portion of an Application as part of a particular Solution.

“Authorized Recipient” means an entity, only as designated by Customer, to receive the

summary results of an Assessment via an electronic prompt in the Solution Platform.

“Available” or “Availability” is expressed as the number of minutes during a particular

calendar month, as calculated by Appsec Phoenix, that the Solution Platform was available

for Customer to successfully transmit data to, and receive data from Appsec Phoenix using

the Solution Platform, excluding maintenance time.

“Availability Percentage” is expressed as the percentage defined as (i) the Availability less

any Unavailability during any particular calendar month, divided by (ii) the total number of

minutes in such calendar month.

“Business Day(s)” means Monday through Friday, GMT, excluding Appsec Phoenix

recognized holidays.

“Confidential Information” means any information, whether disclosed in written, oral,

electronic or visual form, which is identified as confidential at the time of disclosure or

should reasonably be understood to be confidential given the nature of the information and

the circumstances surrounding the disclosure, including without limitation business,

operations, finances, technologies, products and services, pricing, personnel, customer and

suppliers, other proprietary information and (i) with regard to Customer, Customer Data,

Customer Components, Business application, threat intelligence, Credentials and Keys, the

Customer Applications, and information regarding the specific security vulnerabilities of the

Customer Applications, Components, Cloud environments, infrastructure environments and,

subject to Appsec Phoenix’s ownership of the Appsec Phoenix Property, the Reports and

Document Output. The existence of this Agreement shall not be considered Confidential

Information; however, the economic terms of this Agreement, inclusive of pricing, discounts,

shall be considered Confidential Information.

“Customer Data” means any Customer data, information, or content (including the

Applications, Component, Cloud elements and any Assessment including the individual

vulnerabilities results thereof) provided by, or on behalf of, Customer to Appsec Phoenix in

connection with its use of a Solution but excludes personal data. It is agreed and

acknowledged that Customer owns and retains all rights, inclusive of all intellectual property

rights, to all Customer Data.

“Document Output” means any type of Solution output, other than a Report, which may

include but is not limited to presentations, slide decks, or other document provided or made

available by Appsec Phoenix, through the Solution Platform, or otherwise.

“Documentation” means any user guides, help windows, Solution descriptions and other

documents relating to the use, performance, or technical information, of a Solution made

available via the Solution Platform by Appsec Phoenix at https://kb.appsecphoenix.com/ or

via e-mail at support@appsecphoenix.com .

“Force Majeure Event” means any act or event, or circumstances beyond a Party’s

reasonable control, which prevents a Party from performing its obligations under this

Agreement, including but not limited to acts of God, epidemic, pandemic, terrorist acts, acts

of war labor strikes and other labor disturbances, or power surges or failures.

“Internal Use” means customary business use and not use for compensation of any kind.

“Order Form(s)” means a sales order and/or statement of work referencing this Agreement,

which has been mutually agreed to by the Parties either (i) in a mutually signed writing or

explicitly agreed via the Platform or Software (ii) by a Customer issued purchase order

expressly referencing a Appsec Phoenix provided sales order, that describes the particular

Solution(s) ordered, the quantity of Solution(s) ordered, the fees for the Solution(s) and the

Subscription Term. If Customer licenses the Solution(s) through a Appsec Phoenix

authorized reseller, an Order may be entered into between Appsec Phoenix and the authorized

reseller for Customer’s use.

 

“Report(s)” means any report (or any portion of a report) accessible through the Solution

Platform (or provided by such other means as mutually agreed by the Parties), that provides

the results of an Assessment relating to an Application.

“Software” means any software provided by Appsec Phoenix which and may be used by

Customer in conjunction with a licensed Solution, such as agents, APIs, virtual appliances,

and certain e-Learning course content, and which may be subject to separate terms.

“Solution(s)” means the particular security related solution(s) stated in an Order or order

(including, in the case of any Solution provided on a software as a service basis, the Solution

Platform and any Appsec Phoenix content provided as a part thereof), the Software, the

Documentation, and any updates to the particular Solution made available by Appsec

Phoenix from time to time, in its sole discretion. As used herein, the term Solution

specifically excludes all Applications.

“Statistical Data” means high level, anonymized statistical information that Appsec Phoenix

has complied relating to Assessments, which does not identify an Application or Customer.

“Subscription Term” means the time period during which Customer has access to certain

Solution(s) and/or support as set forth in an applicable Order.

“Support Package” means the technical assistance described in the Appsec Phoenix

Technical Support Services and Service Levels page posted

at https://appsecphoenix.com/terms-of-support/  . The document posted at such link shall be

effective for the entirety of a Subscription Term.

 

“Third Party” means a third-party software provider that designates an Application for

Assessment by Appsec Phoenix.

“Unavailable” or “Unavailability” is expressed as the number of minutes during a particular

calendar month that the Solution Platform was not Available to Customer, but expressly

excludes any time the Solution Platform was not Available as a result of (i) any planned

maintenance and support (which Appsec Phoenix shall endeavor to post notice of on the

Solution Platform at least one (1) Business Days in advance); or (ii) any unanticipated

maintenance; or (iii) a Force Majeure Event as described in the Agreement.

“Users” means anyone granted access to a Solution by Customer as permitted under this

Agreement.

“Appsec Phoenix Property” means any Appsec Phoenix technical information, e- Learning

or other course content, techniques, ideas, methods, processes, software, interfaces, utilities,

data, documents, directories, designs, user interfaces, know-how, intellectual property,

information or materials of any kind (regardless of form) which has been or is acquired,

created, developed or licensed by Appsec Phoenix prior to or outside the scope of this

Agreement and any improvement, modification or other derivative works thereof and all

intellectual property rights therein; and expressly includes, without limitation, the Solution,

Solution Platform, Reports and Document Output templates.

 

  1.     Orders. An order shall be deemed placed when the Parties enter into one or more Order

Forms which reference this Agreement, each of which shall be incorporated herein by

reference. An Affiliate may enter into an Order Form pursuant to this Agreement, and by

doing so, agrees to be bound to the terms of this Agreement. Customer shall be responsible

for the compliance of its Affiliates with the terms and conditions of this Agreement.

  1.     License Grants. Any and all rights not expressly granted herein are reserved by Appsec

Phoenix. All rights and licenses granted herein are subject to the terms of this Agreement.

3.1.                Appsec Phoenix Solution License. Appsec Phoenix grants Customer a non- exclusive,

non-transferable right and license, during the Subscription Term, to (i) access and use the

Solution(s) stated in an Order Form solely for Customer’s Internal Use; (ii) access and use

Software, if any, solely at a Customer owned or controlled site; and (iii) access and use each

Report and/or the Document Output made available via the Solution Platform subject to the

terms of this Section 3

3.2.                Appsec Phoenix Report and Document Output License. For each Application, Cloud

Components, Application Component, Infrastructure Asset Assessed or derived from third

party scanner assessment as part of the Solution, Appsec Phoenix will make available to

Customer a Report containing the results of the Assessment with recommendations on what

to fix first. The recommendation are subject to threat intelligence and are to be considered

only a suggestion. As Such Appsec Phoenix shall not undergo any liability as consequence of

decisions taken as consequence of the suggestions. Customer shall own all right, title, and

interest to each Report, subject to Appsec Phoenix’s ownership of any Appsec Phoenix

Property contained therein. Appsec Phoenix grants Customer an exclusive, transferable,

perpetual, worldwide license to access, use and reproduce each of the Report and Document

Output, and any Appsec Phoenix Property incorporated therein, solely for Internal Use.

Customer grants Appsec Phoenix the right to provide Authorized Recipients with high level

status updates regarding the status of the Assessment and the availability of the Report solely

upon Customer request.

3.3.                Customer Applications and Customer Data License. Customer grants Appsec Phoenix

a limited, non-exclusive right and license, during the Subscription Term, to (i) use, access,

reproduce, and store each Application and use the Customer Data solely to the extent

necessary to provide the Solution and/or perform its obligations under this Agreement; (ii) create, reproduce, store, make available and transfer Reports; (iii) collect, modify and analyze

meta data and/or operations data which does not contain any Customer Data, such as log files

and transaction counts; and (iv) create Statistical Data and Aggregated Data, each of which

shall be anonymized. Customer grants Appsec Phoenix, for a perpetual license term

thereafter, the right to use, reproduce, store, publish, license, and transmit the Statistical Data

included within the Aggregated Data. Appsec Phoenix will not expose or attempt to derive

the source code of any Application. Except as expressly licensed herein, (i) Customer and its

Affiliates (and/or their licensors) shall retain all right, title and/or interest to the Applications

and Customer Data and all intellectual property rights therein, and (ii) Appsec Phoenix shall

obtain no right or license thereto.

3.4.                Third Party Application Assessments and Reports. If Customer chooses to have an

Application Assessed that is owned or licensed by a Third Party, Appsec Phoenix will only

perform such Assessment if Appsec Phoenix and such Third Party enter into a separate

written, signed agreement in a form acceptable to Appsec Phoenix. Customer hereby grants

Appsec Phoenix the right to use Customer’s name in Appsec Phoenix’s communications to

such Third Party for such purpose. Upon completion of such Assessment, such Third Party

shall own the detailed Report relating to the Assessed Application, Cloud, Components and

Infrastructure assets, and Appsec Phoenix shall make available to Customer a summary

version of the Report containing the results of the Assessment. Customer is hereby granted a

non-exclusive, non- transferable, perpetual, worldwide license to access, use and reproduce

the summary version of such Report and any Appsec Phoenix Property contained therein,

solely for Customer’s and its Affiliates’ Internal Use.

 

  1.     Access and Acceptable Use.

4.1.                Access to Applications. Customer agrees to make the Applications to be Assessed

available to Appsec Phoenix in accordance with Appsec Phoenix’s submission specifications.

Each Application shall be provided in a form mutually agreed to by the parties, including, but

not limited to, executable object code form (unless the particular Application is only

deployed in source, in which case Customer will provide source) or, in the case of a web

Application, by providing the URL. Customer is responsible for providing the systems,

servers, software and network and communications necessary to connect to and utilize the

Solution.

4.2.                Solution and Solution Platform Access. Customer will register a primary

administrative User. Such administrative User is authorized to set up Customer’s account,

including creating subaccounts for additional Users, each of which shall have unique login

IDs and passwords. Customer shall be responsible for the acts or omissions of all of its Users.

4.3.                Acceptable Use. Customer and its User shall not:

 

  •           use the Solution(s) except as contemplated by this Agreement;
  •           use the Solution(s) in any manner that is in breach of any law or regulation;
  •           make the Solution available to any third party not authorized or as otherwise

contemplated by this Agreement;

  •           send Applications, Connections,  strings, input, or code that can harm or result in

damage to the Solution(s) (including but not limited to malicious code and malware);

  •           willfully interfere with or disrupt the integrity of the Solution(s) or the data contained

therein;

  •           attempt to gain unauthorized access to the Solution(s) or its related systems or

networks;

  •           use the Solution(s) to provide services to, or on the behalf or benefit of, third parties

except as expressly permitted by the Agreement;

  •           remove or modify any program markings or any notice of Appsec Phoenix’s or its

licensors’ proprietary rights;

  •           modify or attempt to expose the source code of or attempt to recreate any software

which forms a part of the Solution(s), or Software;

  •           perform or disclose any benchmark or performance tests on the Solution(s);
  •           perform or disclose any of the following security testing of the Solution(s), or

associated infrastructure: network discovery, port and service identification, vulnerability

scanning, password cracking, remote access testing, penetration testing or any other test or

procedure not authorized in the Documentation;

  •           provide any health, payment card or similarly sensitive personal information in its use

of the Solution or Solution Platform that imposes specific data security obligations for the

processing of such data unless it is a supported feature in the Documentation of the applicable

Solution; or

  •           use the Solution(s) or Solution Platform and any of the features thereof, or any APIs,

in a manner that effects the stability or accessibility of the Solutions.

Customer agrees that it, and its Users shall, if notified by Appsec Phoenix that such Customer

or User utilization has been determined by Appsec Phoenix to be the cause of stability or

accessibility issues, immediately cease such usage. Customer further agrees to promptly

notify Appsec Phoenix upon learning of any unauthorized use of Customer’s accounts or any

other breach of security related to the rights granted under this Agreement. Upon such

notification, or if Appsec Phoenix learns of any malicious activity associated with any

Customer or User account, Appsec Phoenix may temporarily suspend such accounts to

mitigate the effects of any security event or malicious activity, and when reasonably

practicable and lawfully permitted, will provide Customer with notice of any such

suspension. Appsec Phoenix will use reasonable efforts to re- establish any temporarily

suspended account promptly after the issue causing the suspension has been resolved.

 

Appsec Phoenix reserves the right to refuse registration of, or to cancel login IDs of any

Users who violate the terms of this Agreement; and/or limit or remove Customer access to

the Solution or Solution Platform for usage of quantities in excess of the quantity stated in an

Order. Customer is responsible for payment of fees for any use of the Solution(s) in excess of

the quantity stated in an Order Form.

4.4 Appsec phoenix reserve the right to suspend the accounts for in case 

thecase the user has more asset than authorized (after expiration of

licence over the grace period). After Expiration of licence and grace period

the user are transitioned to a standard account and if the asset limit areis

not rectified Appsec Phoenix reserves the right to suspend the account

after 30 days from the downgrade.  

Appsec Phoenix reserves the right to change the terms and conditions and

offers 1 week notice to users to disconnect from the service if not in

agreement.

4.5 Appsec Phoenix reserve the right to contact and suspend the accounts to

professional license or standard license if trial period is over and the

usage is still above the allowed

  1.     Maintenance, Modifications, Availability and Service Levels.

5.1.                Maintenance. Appsec Phoenix shall endeavor to post all scheduled maintenance

periods notified on the platform banner, no less than forty-eight (48) hours prior to such

scheduled maintenance. There may be instances where Appsec Phoenix must perform

unanticipated maintenance on a Solution or the Solution Platform to maintain the stability or

accessibility of the Solution or Solution Platform for all customers and users. In such cases,

 

Appsec Phoenix will post a notice of such maintenance period as soon as practicable and may

temporarily suspend access to the Solutions and/or the Solution Platform during such

maintenance period. Such suspension for such unanticipated maintenance period shall not be

considered Unavailability. Appsec Phoenix shall immediately restore access upon completion

of such unanticipated maintenance.

5.2.                Modifications. Appsec Phoenix reserves the right to modify the Solutions and Solution

Platform from time to time in an effort to improve the functionality of the Solutions and

Solution Platform, however such changes shall not materially reduce the functionality

provided during the Subscription Term.

5.3.                Solution Platform Availability. Appsec Phoenix shall maintain the Availability

Percentage of the Solution Platform at or above ninety-nine percent (98.99%) during every

calendar month of the Term.in line with the service level described in the

https://appsecphoenix.com/terms-of-support/  

5.4.                Service Levels. Service levels associated with support response times are described at

the page posted at https://appsecphoenix.com/terms-of-support/  . The content posted at such

page is effective as posted for entirety of a Subscription Term on the Order Form.

 

  1.     Confidentiality and Security.

6.1.                Confidentiality. During the term of this Agreement and continuing for a period of

twelve (12) months after termination of this Agreement, unless superseded by an NDA, each

Party shall retain in confidence, and not use except for the purposes described in this

Agreement, the Confidential Information of the other Party disclosed by such Party or its

Affiliates or made available in connection with this Agreement. The receiving party will use

the same degree of care and discretion (but not less than reasonable care) to avoid disclosure,

publication, or dissemination of the disclosing party’s Confidential Information as it uses

with its own information of a similar nature. Except as authorized in this Agreement, the

receiving party will not disclose the Confidential Information of the disclosing party to a third

party other than to its or its Affiliates’ employees, contractors, agents or advisors in

connection with its performance of this

 

Agreement and the receiving party shall be liable to the disclosing party for any violation of this

Agreement by such persons. Confidential Information shall not include information that (a) is

publicly known at the time of disclosure, (b) is lawfully received from a third party not bound

in a confidential relationship with the disclosing party, (c) is published or otherwise made

known to the public by the disclosing party, or (d) was or is generated independently without

use of the disclosing party’s Confidential Information. The receiving party may disclose

Confidential Information as required to comply with orders of governmental entities that have

jurisdiction over it or as otherwise required by law, provided that the receiving party (i) to the

extent permitted by the governmental order or law, gives the disclosing party reasonable

advance written notice to allow the disclosing party to seek a protective order or other

appropriate remedy , (ii) discloses only that portion of the Confidential Information as is

required, and (iii) uses commercially reasonable efforts to obtain confidential treatment for

any Confidential Information so disclosed. Notwithstanding anything herein to the contrary,

provided that Appsec Phoenix does not use or disclose Customer Confidential Information,

Appsec Phoenix shall be free to use, exploit and disclose its general skills, concepts, ideas,

know-how, and expertise gained or learned during the course of this Agreement, and Appsec

Phoenix shall not be restricted from creating output for other customers which is similar to

that provided to Customer. Each Party owns and retains all rights, inclusive of all intellectual

property rights, to their respective Confidential Information. In case there is an NDA the

NDA agreement will take precedence over this Agreement

 

6.2.                Security. Appsec Phoenix shall maintain, use, and process any Customer Confidential

Information in compliance with all applicable laws. Appsec Phoenix shall establish and

maintain administrative, physical and technical safeguards designed to guard against the

destruction, loss, or alteration of Customer Confidential Information. Without limiting the

foregoing, Appsec Phoenix shall at all times in connection with this Agreement: (i) maintain

and enforce security measures and procedures with respect to its processing of Customer

Data and Customer Confidential Information consistent with commercially reasonable

industry practices and standards;

(ii)       provide technical and organizational safeguards designed to protect against accidental,

unlawful or unauthorized access to or use, destruction, loss, alteration, disclosure, transfer,

commingling or processing of such information and ensure a level of security appropriate to

the risks presented by the processing of such information and the nature of such information,

consistent with commercially reasonable industry practice and standards;

(iii)      take commercially reasonable measures to secure the Solution Platform against

“hackers” and others who may seek, without authorization, to disrupt, damage, modify,

access or otherwise use the Solution Platform or the information found therein; (iv) take

commercially reasonable measures to logically separate Customer Confidential Information

from that of other customers. Appsec Phoenix shall periodically test and continuously

monitor its systems for potential areas where security could be breached and shall also

periodically conduct security testing, including penetration testing. Appsec Phoenix shall be

solely responsible for its information technology infrastructure, including all computers,

software, databases, electronic systems and networks that are owned or controlled by Appsec

Phoenix that may be used by Appsec Phoenix to access Customer’s systems or otherwise in

connection with the Solutions. To the extent that Appsec Phoenix utilizes service providers or

subcontractors in connection with the performance of the Solutions, Appsec Phoenix

acknowledges that this provision applies equally to any such service provider or

subcontractor, such service provider or subcontractor will possess a level of security and data

protection equal to Appsec Phoenix and Appsec Phoenix shall be responsible for such service

providers and subcontractors in accordance with the terms of this Agreement.

  1.   Representations and Warranties; Disclaimer.

7.1.                General Warranties. Each Party represents and warrants to the other party that (i) it has

and shall have all the necessary rights, approvals, consents and permissions to enter into this

Agreement and to grant the rights and licenses herein, and (ii) the execution, delivery and

performance of this Agreement does not and will not conflict with any agreement,

 

 

 

instrument, judgment or understanding, oral or written, to which it is a party or by which it may

be bound.

7.2.                Customer Data Warranty. Customer represents and warrants that it has the right to

disclose all Confidential Information Customer provides to Appsec Phoenix for the purpose

of enabling Appsec Phoenix to perform its obligations under this Agreement.

7.3.                Solution Performance Warranty. Appsec Phoenix represents and warrants that the

Solution will be provided as described in the applicable Order Form, by qualified personnel

in a professional manner, and will comply in all material respects with applicable

Documentation. In order to state a claim for breach of this Solution performance warranty,

Customer must provide notice of such non-compliance within the thirty (10) day period

following such non-compliance (such as, for example, within thirty (10) days from date of

performance of the part of a particular Assessment or delivery of a Report with respect to an

Assessment) specifying the details of such noncompliance. If Customer timely provides

 

Appsec Phoenix with the required notice, as Customer’s sole and exclusive remedy and

Appsec Phoenix’s sole and exclusive liability for breach of warranty, Appsec Phoenix shall

re-perform such portion of the Solution or otherwise use commercially reasonable efforts to

correct any such non-compliance, at its expense, within thirty (90) days of its receipt of such

notice. During any trial period, this warranty shall not apply.

7.4.      Warranty Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND

WARRANTIES STATED HEREIN, APPSEC PHOENIX DISCLAIMS ALL OTHER

REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE

IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR

PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING,

APPSEC PHOENIX DOES NOT WARRANT OR REPRESENT THAT THE SOLUTION

WILL FIND ALL SECURITY VULNERABILITIES, RISKY CAPABILITIES OR

MALICIOUS CODE. APPSEC PHOENIX DOES NOT WARRANT OR REPRESENT THE

SOLUTION WILL SUGGEST ALL OR THE MOST IMPORTANT VULNERABILITY TO

FIX AND WILL BASE DECISION ON CUSTOMER PROVIDED PROFILING.

 

  1.   Indemnification.

8.1.  Appsec Phoenix’s Indemnity. Appsec Phoenix shall defend and indemnify Customer and its

Affiliates and their officers, directors and employees (the “Customer Indemnitees”) against

actual damages, costs and expenses, including reasonable attorneys’ fees, suffered by the

Customer Indemnitees arising out of a third party claim that (i) the Solution infringes or

violates any valid patent, copyright, or trademark or misappropriates a third party’s trade

secret or (ii) Appsec Phoenix is not the owner or licensee of any Appsec Phoenix Property,

including without limitation the Solution and/or does not have the right, title and/or interest

to grant the license rights provided for herein and make available the Solution; provided

that, in each case, Appsec Phoenix shall not be responsible for any claim to the extent

arising from or relating to (a) Customer’s unauthorized use of the Solution; or (b) any

Applications or any Customer Data used in combination with the Solution if the claim

would not have arisen but for such combination.

8.2.      Customer’s Indemnity. Customer shall defend and indemnify Appsec Phoenix and its

Affiliates and their officers, directors and employees (the “Appsec Phoenix Indemnitees”)

against any actual damages, costs and expenses, including reasonable attorneys’ fees,

suffered by the Appsec Phoenix Indemnitees arising out of any third party claim that

Customer and/or its Affiliates (i) are not the owner or licensee of each Application and any

Customer Data or (ii) do not have the right, title and/or interest to grant the license rights

provided for herein and to submit and designate for Assessment each Application and any

Customer Data for the purposes of allowing Appsec Phoenix to provide the Solution and

produce the Reports or Document Output.

8.3.      Indemnity Procedures. The indemnifying party shall conduct and have sole control of

the defense and settlement of any claim for which it has agreed to provide indemnification;

provided that the indemnified party shall have the right to provide for its separate defense at

its own expense. The indemnified party shall give prompt notice of all claims for which

indemnity is sought and shall cooperate in defending against such claims, at the expense of

the indemnifying party. The rights and remedies set forth in this

 

Section 8 state each Party’s exclusive liability and exclusive rights and remedies with regard

to claims made by a third party for intellectual property infringement or violation of a third

party’s intellectual property rights.

 

 

Limitation of Liability. IN NO EVENT WILL APPSEC PHOENIX, ITS AFFILIATES

OR SUBSIDIARIES BE LIABLE TO CUSTOMER OR ANY OTHER PARTY UNDER

OR IN CONNECTION WITH THIS AGREEMENT FOR: (1) INCIDENTAL,

INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT

LIMITATION LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF USE, OR

LOST DATA, REGARDLESS OF THE FORM OF THE ACTION WHETHER IN

CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY

OR OTHERWISE, EVEN IF APPSEC PHOENIX HAS BEEN ADVISED OF THE

POSSIBILITY OF SUCH DAMAGES; OR (2) DAMAGES CAUSED BY

CUSTOMER’S FAILURE TO PERFORM ITS OBLIGATIONS HEREUNDER. IN NO

EVENT WILL APPSEC PHOENIX, ITS AFFILIATES OR SUBSIDIARIES BE

LIABLE, IN THE AGGREGATE, TO CUSTOMER OR TO ANY OTHER PARTY FOR

ANY AND ALL CLAIMS ARISING OUT OF OR CONNECTED WITH THIS

AGREEMENT, IN AN AMOUNT EXCEEDING THE TOTAL AMOUNT ACTUALLY

PAID TO APPSEC PHOENIX BY CUSTOMER UNDER THE TERMS OF THIS

AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY

PRECEEDING APPSEC PHOENIX’S RECEIPT OF NOTICE OF AN INITIAL

CLAIM. APPSEC PHOENIX SHALL LIMIT THE CUSTOMER’S LIABILITY UNDER

THE TERMS OF THIS AGREEMENT DURING THE TWELVE (12) MONTH

PERIOD IMMEDIATELY PRECEDING APPSEC PHOENIX’S RECEIPT OF NOTICE

OF AN INITIAL CLAIM, EXCEPT FOR BREACH OF THIS AGREEMENT TERMS,

NDA BREACH, MISUSE OF THE PLATFORM LINK TO A LEGAL PROCEEDING. 

Without limiting the foregoing, except to the extent arising from Appsec Phoenix’s GROSS

negligence or intentional misconduct, Appsec Phoenix shall not have any liability for losses,

claims or damages for any harm or disruption of Customer’s systems or applications arising

out of penetration tests or simulated attacks which may be provided by Appsec Phoenix as

part of a particular Solution in accordance with the terms of this Agreement.

  1.       Term and Termination.

10.1.    Term of Agreement. This Agreement shall commence on the Effective Date and will

continue thereafter until sixty (60) days after the expiration of the last to expire of any

existing Order Forms which are then in effect at the time of such notice of termination (the

“Term”).

10.2.    Termination of an Order Form for Breach. A Party may terminate this Agreement for

material breach by the other Party, provided that in each instance of a claimed breach: (i) the

non-breaching party notifies the breaching party in writing of such material breach within

thirty (30) days of its occurrence and (ii) the breach is not cured within thirty (30) days of

receipt of such notice. An Order Form may only be terminated (in whole or in part) by a

Party if the other Party fails to cure a material breach of the terms of such Order Form or of

this Agreement as it relates to the terms of such Order Form within thirty (30) days after

receiving written notice of the material breach from the non-breaching party. The termination

of a particular Order Form shall not impact the validity of other Order Forms.

10.3.    Effect of Termination. Upon any termination or expiration of this Agreement, all

rights and obligations of the Parties shall end, other than the rights and obligations under

Sections 6.1, 8, 9, 10.2 hereof.

10.4.    Destruction of Applications and Data. Appsec Phoenix shall destroy, using industry

standard methods, all copies of each Application, component, cloud data, and Tokens, the

results of the Assessments of each of the above, Customer Confidential Information, and all

associated documentation and related materials provided by Customer either (i) upon request

by Customer; or (ii) within ninthy (90) days following any termination or expiration of a

 

particular Order Form or this Agreement if such destruction has not already occurred. Upon

request, Appsec Phoenix shall confirm such destruction in writing. Upon the expiration or

termination of any Order Form granting Customer access to Software, Customer shall

promptly destroy such Software and upon request, Customer shall confirm such destruction

in writing.

 

  1.       Insurance. Appsec Phoenix shall maintain, at its expense, at all times during any

Subscription Term set forth on an Order Form, insurance of such type and level as is

reasonable and prudent in the industry. Such insurance shall be carried with responsible

insurance companies of recognized standing which are authorized to do business in the state

in which the Solution is rendered

 

 

 

  1.       General.

12.1.    Assignment and Subcontractors. Neither Party may assign this Agreement, or any of

its rights or obligations hereunder (in whole or in part) without the prior written consent of

the other Party. Notwithstanding the foregoing, either Party may assign this Agreement,

without the other Party’s consent, in whole (but not in part) to a successor in interest to the

business of such Party in connection with a merger, sale of substantially all of its assets,

change of control or by operation of law, or to an Affiliate, provided that (i) the assignee

agrees to assume the obligations under this Agreement in writing and has adequate resources

to meet its obligations hereunder; and (ii) the assignment shall not change the scope of work

to be performed under any Order Form then in effect. The terms of this Agreement shall be

binding upon the permitted successors and assigns of each Party. Appsec Phoenix may use

subcontractors and shall be responsible for the acts and omissions of its subcontractors.

12.2.    Governing Law and Venue. This Agreement is governed by the laws of England and

Wales, without regard to conflict of laws principles. The Parties agree to submit to the

exclusive jurisdiction of, and venue in, the courts of London, England in any dispute arising

out of or relating to this Agreement. The United Nations Convention on Contracts for the

International Sale of Goods does not apply to the transactions contemplated by this

Agreement.

12.3.    Notices. Notices may be sent via e-mail, which in the case of Appsec Phoenix shall be

to leagl@appsecphoenix.com, and in the case of Customer shall be to the customer’s name

and address as set forth on the Order Form. Notices may also be sent in writing to each Party

at the address first set forth above. Notices sent in writing shall be deemed to be delivered (i)

one day after delivery with a reputable overnight carrier or (ii) three days after deposit with

Royal Mail sent first class mail, return receipt requested. Any notices to Appsec Phoenix

made by Customer shall also include a copy to: Appsec Phoenix Office 124 City Road, EC1V

2NX, London, UK.

12.4.    Force Majeure. Neither Party shall be liable to the other Party for any failure or delay

caused by a Force Majeure Event, provided the Party shall use reasonable efforts to remove

such causes of nonperformance. Notwithstanding the foregoing, (i) neither Party is excused

from its obligation to take reasonable steps to follow its disaster recovery procedures and (ii)

Customer is not excused from its payment obligation.

12.5.    Relationship of the Parties. The relationship of the Parties is that of independent

contractors and Appsec Phoenix shall not be construed to be an employee, partner, or agent

of Customer.

12.6.    Entire Agreement. The terms of this Agreement (including any applicable exhibits,

referenced documents, or Order Forms entered into pursuant to this Agreement) provide the

 

complete understanding of the Parties with regard to the subject matter hereof and supersede

all previous communications, agreements, proposals or representations related to the subject

matter hereof.

12.7.    Amendment. Except as otherwise expressly provided for herein, any waiver,

amendment, or modification of any right or remedy, in whole or in part under this

Agreement, or any additional or different terms in acknowledgments or other documents, will

not be effective unless expressly agreed to in writing and signed by the authorized

representatives the Parties.

12.8.    Order of Precedence. Unless the Order Form expressly amends this Agreement and

except as otherwise expressly provided herein, the terms and conditions of this Agreement

shall take precedence over any conflicting terms in the Order Form. It is expressly agreed that

no additional terms and conditions contained in Customer’s purchase order, internet

procurement portal or other non-Appsec Phoenix document shall apply to the Solutions

ordered.

12.9.    Miscellaneous. This Agreement may be executed in counterparts, including

information which is incorporated by written reference, which, taken together, will constitute

one and the same instrument. The exchange of a fully executed Agreement (in counterparts or

otherwise) by electronic means or in writing shall be sufficient to bind the Parties to the terms

and conditions of this Agreement and to any Order Form.

 

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