1Strike License Agreement
This 1Strike License Agreement (“Agreement”) is a legal and binding contract between 1Strike Z o.o.. (“1Strike”) and the individual or entity accessing and using 1Strike (“CUSTOMER”). 1Strike and CUSTOMER may be referred to individually as a “Party” and collectively as the “Parties.”
BY INSTALLING, ACCESSING, OR USING 1Strike, CUSTOMER, ON ITS BEHALF OR ON BEHALF OF THE ENTITY CUSTOMER REPRESENTS AGREES TO BE BOUND BY THIS AGREEMENT. THE USE OF 1Strike IS CONDITIONED UPON CUSTOMER’S ACCEPTANCE OF THE TERMS AND CONDITIONS SPECIFIED BELOW AND ANY ADDITIONAL TERMS SPECIFIED IN ANY ADDENDUM, SCHEDULE, OR OTHER DOCUMENT THAT EXPRESSLY REFERENCES THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, CUSTOMER SHALL NOT DOWNLOAD, INSTALL, OR OTHERWISE USE 1Strike.
This Agreement applies to the purchase, access, or use of 1Strike in North, South, and Central America.
If you purchase and/or use 1Strike in any other jurisdiction, the use of 1Strike Products is governed by a
separate end-user license agreement.
Any use of 1Strike by anyone who is not an Authorized User is prohibited.
1. Definitions. Capitalized terms not otherwise defined herein have the meanings set forth in Exhibit A (Definitions).
2. 1Strike. 1Strike is a security software solution available directly from 1Strike or through a 1Strike Partner that CUSTOMER may: (i) download and install on its own physical, virtual, or cloud environment; (ii) access and use as software-as-a-service; or (iii) access and use as an element of the services provided by a 1Strike Partner.
2.1 License Terms. CUSTOMER may obtain a License to 1Strike through: (i) a Subscription License, subject to the payment of all applicable Subscription Fees during the Subscription Period; (ii) a Perpetual License, subject to the payment of a one-time fee and ongoing Support Fees; or (iii) custom licensing terms provided by 1Strike.
CUSTOMER may later add additional Authorized Servers and/or Authorized Users, subject to payment of additional
Subscription Licenses and/or Support Fees, as applicable. Additional Authorized Servers and/or Authorized Users will incur pro-rated Subscription Fees and/or Support Fees for the remainder of the Subscription Period in which they are purchased.
2.2 License Grant. Subject to the terms and conditions of this Agreement and the payment of all applicable Fees, 1Strike grants CUSTOMER a non-exclusive, non-transferable, and non-sublicensable license solely for its own business operations: (i) to use 1Strike to manage the number of Authorized Servers, Authorized Users, or any other metrics for which CUSTOMER has subscribed or purchased licenses (as the case may be); (ii) to use 1Strike in accordance with the terms of the Documentation and this Agreement; and (iii) to install and deploy, or have a 1Strike Partner install and deploy, 1Strike in accordance with the terms of the Documentation and this Agreement.
2.3 Installation. 1Strike can be installed: (i) on a 1Strike Hardware Appliance; (ii) as a Virtual Appliance Image; and/or (iii) as a Specific Cloud Image (collectively, “Environment”). 1Strike will make available or deliver to CUSTOMER or an applicable 1Strike Partner, as the case may be, 1Strike, in accordance with the Environment purchased by CUSTOMER. CUSTOMER is solely responsible for procuring and maintaining the virtual and/or cloud environment necessary for 1Strike to function as intended.
3. 1Strike Responsibilities
3.1 Availability. 1Strike shall make 1Strike or components thereof purchased by CUSTOMER available to CUSTOMER for the duration purchased by CUSTOMER under the terms and conditions of this Agreement and any other agreements between 1Strike and CUSTOMER (which are hereby incorporated into this Agreement by reference).
3.2 Updates and Upgrades. 1Strike will make Updates and Upgrades to 1Strike via releases.
Updates will be made as generally and commercially available to CUSTOMER without levying an incremental fee.
Upgrades will be released by 1Strike at its discretion and may be subject to additional fees (“Upgrade Fees”). CUSTOMER may Update or Upgrade 1Strike by accessing and installing the latest release from the 1Strike website or as provided by a 1Strike Partner and paying the additional Upgrade Fees, if applicable. If any Update to 1Strike Products is deemed necessary or required by 1Strike ("Required Update"), CUSTOMER is responsible for installing such Required Update in accordance with the instructions provided by 1Strike. The terms and conditions of this Agreement will govern any Updates and Upgrades provided by 1Strike to 1Strike unless such release is accompanied by an updated End User Agreement, in which case the updated End User Agreement shall control to the extent it conflicts with this Agreement.
4. Customer Responsibilities
4.1 Limitations. CUSTOMER acknowledges and agrees that CUSTOMER shall only provide access to 1Strike to the number of Authorized Users and/or use 1Strike to monitor the number of Authorized Servers purchased by CUSTOMER. If CUSTOMER purchases 1Strike under any custom license terms, then CUSTOMER further agrees to abide by the limitations set forth in such custom terms. CUSTOMER shall promptly notify 1Strike if CUSTOMER exceeds the number of Authorized Users, Authorized Servers, or any other custom metrics purchased by CUSTOMER and shall request a Purchase Order and remit the applicable Fees for any overages in accordance with such Purchase Order.
4.2 Restrictions. CUSTOMER shall not use 1Strike for any purposes beyond the scope of the License granted under this Agreement. Except as expressly permitted by law and this Agreement, CUSTOMER agrees not to:
4.2.1 Copy, reproduce, or republish 1Strike, in whole or in part;
4.2.2 Translate, adapt, disassemble, change the layout, or make other changes to 1Strike;
4.2.3 Use 1Strike or parts thereof in other software;
4.2.4 Make 1Strike available to any person other than Authorized Users, if applicable;
4.2.5 Use or access 1Strike to provide service bureau, time-sharing, or other computer hosting
services to third parties;
4.2.6 Modify or create derivative works based upon 1Strike;
4.2.7 Remove, modify, or obscure any copyright or proprietary notices contained in 1Strike;
4.2.8 Reverse engineer, decompile, disassemble, or attempt to derive the source code of 1Strike;
4.2.9 Access 1Strike in order to build a similar or competitive product;
4.2.10 Share nonpublic features or content of 1Strike with any third party;
4.2.11 Use 1Strike in any manner or for any purpose that infringes, misappropriates, or otherwise
violates any Intellectual Property Rights or other rights of any person or that violates any applicable law;
4.2.12 Use a jump server or other intermediary method to monitor the number of servers beyond the
number of Authorized Servers available in the license, if applicable;
4.2.13 Introduce any Malicious Code or instructions that may disrupt, damage, delay, or interfere with
other customers’ use of 1Strike; or
4.2.14 Assign, transfer, sell, resell, sublicense, rent, lease, time-share, distribute, or otherwise transfer the
rights granted to CUSTOMER under this Agreement to any third party except as expressly set forth herein or in an addendum.
4.3 Compliance with the Law. By using or accessing 1Strike, CUSTOMER represents, warrants, and agrees not to do anything illegal, infringing, fraudulent, malicious, or which could expose 1Strike or other users of 1Strike to harm or liability. CUSTOMER will not attempt, encourage or facilitate any of the above. CUSTOMER further represents and warrants that it shall, at all times while accessing and using 1Strike, be in compliance with applicable privacy laws and technology export laws.
5. Fees and Payments
5.1 Fees. CUSTOMER shall pay all Fees in accordance with the terms specified in an applicable invoice or Purchase Order. Unless otherwise specified, all Fees are non-cancellable and non-refundable when paid, and no refunds will be permitted if CUSTOMER terminates CUSTOMER’s License prior to the end of the applicable License Term.
5.2 Failure to Pay Fees. If any Fees are not received from CUSTOMER within the limited pay period provided in an applicable invoice, and provided CUSTOMER does not have a reasonable basis for disputing all or a part of such invoice, then, in addition to the other rights and remedies available and at 1Strike’s discretion: (i) suspend access to 1Strike until all undisputed amounts are paid; and/or (ii) levy a late fee at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is higher, from the date such payment was due until the date paid. CUSTOMER shall reimburse 1Strike for all reasonable costs incurred by 1Strike in collecting any late payment or interest, including attorneys’ fees, court costs, and collection agency fees. 1Strike WILL NOT BE LIABLE FOR ANY LOSSES WHATSOEVER INCURRED BY CUSTOMER RELATED TO CUSTOMER’S FAILURE TO PAY UNDISPUTED FEES IN ACCORDANCE WITH THIS SECTION.
5.3 Taxes. Unless otherwise stated, Fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, without limitation, value-added, sales, use, or withholding taxes assessable by any local, state, provincial, federal, or foreign jurisdiction in connection with any Fees.
6. Term. The term of this Agreement commences upon CUSTOMER’s first access or use of 1Strike and continues until terminated as provided herein.
7.1 Termination: Expiration. If CUSTOMER purchases a Subscription License, then this Agreement shall automatically terminate upon expiration of the Subscription Period if not otherwise renewed.
7.2 Termination: Convenience. CUSTOMER may terminate this Agreement at any time and for any reason by providing 1Strike with full payment of any Fees due under this Agreement or applicable addenda for the remainder of the License Term. CUSTOMER’s right to terminate this Agreement or its License under this Section at CUSTOMER’s convenience does not alleviate CUSTOMER’s responsibility to pay any outstanding Fees nor entitle CUSTOMER to receive any refund from 1Strike.
7.3 Termination: Breach. Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured for thirty (30) days after the non-breaching Party provides written notice to the other Party.
7.4 Effect of Termination. Upon termination of this Agreement, all Licenses granted to CUSTOMER pertaining to 1Strike will cease, and CUSTOMER shall discontinue all use of 1Strike. Within fifteen (15) days of termination, CUSTOMER shall, delete, destroy, or, if requested by 1Strike, return all copies of 1Strike, if any, and all Confidential Information of 1Strike in CUSTOMER’s possession.
8. Proprietary Rights
8.1 Reservation of Rights. 1Strike is licensed and not sold to CUSTOMER, and CUSTOMER receives no rights to 1Strike other than those specifically granted in this Agreement. Subject to the rights granted hereunder and any rights granted through other agreements between 1Strike and CUSTOMER, 1Strike reserves all rights, title, and interest in and to 1Strike, including all related Intellectual Property Rights. CUSTOMER acknowledges and agrees that this Agreement does not grant CUSTOMER any title or right of ownership in or to 1Strike, the 1Strike Hardware Appliance, or any component thereof, or to any associated materials or Intellectual Property Rights, or to any enhancements, customizations, integrations, modifications, suggestions, Feedback, features, feature requests, or improvements related to the foregoing, whether or not associated and integrated into 1Strike. CUSTOMER shall not, at any time, take or cause any action which would be inconsistent with or tend to impair the rights of 1Strike or its licensors in 1Strike.
8.2 Proprietary Notices. The Marks are trademarks or registered trademarks of 1Strike or its Affiliates, partners, or licensors. CUSTOMER may not use, copy, reproduce, republish, upload, post, transmit, distribute, or modify the Marks in any way, including in advertising or publicity, without 1Strike’s prior written consent. The use of the Marks on any other website or networked computer environment is not allowed, including as a “hot” link on or to any other website.
9. Confidentiality; Data Protection
9.1 Confidentiality. CUSTOMER and 1Strike agree that during the performance of this Agreement, each may receive Confidential Information of the other Party or other third parties who have entrusted either Party with the safeguarding of such Confidential Information. The Parties agree not to use or disclose any Confidential Information except for the purpose of meeting its obligations under this Agreement and will not use Confidential Information for any other purpose whatsoever. As such, the Parties agree that during the term of this Agreement and thereafter, for as long as Confidential Information remains confidential, and as long as 1Strike or any related Documentation constitutes a trade secret, the Parties shall maintain such Confidential Information and/or trade secrets in strict confidence. The Parties shall advise all their employees, agents, or contractors that they are bound by the confidentiality terms of this Agreement or any other applicable nondisclosure agreement signed by the Parties. If either Party is required to disclose Confidential Information relating to the other Party to a court or government agency, it shall, prior to disclosure and as soon as practicable, notify the other Party and allow it an adequate opportunity to object to the disclosure order or take other action to preserve the confidentiality of the information.
The obligations and responsibilities of this Subsection shall survive termination of this Agreement for any reason and shall bind and benefit the Parties and their respective successors and assigns.
9.2 Responsibilities for Customer Data. 1Strike is not responsible for any intentional or unintentional misuse of Customer Data by CUSTOMER (including CUSTOMER’s employees, subsidiaries, Affiliates, and/or parent companies) and/or Authorized Users or Third Party Service providers to whom CUSTOMER has granted access to Customer Data via 1Strike. CUSTOMER understands that CUSTOMER is solely responsible for granting access to 1Strike to Authorized Users, and CUSTOMER is responsible for safeguarding Customer Data and for backup and restoration of Customer Data. 1Strike is not responsible for the unauthorized disclosure of Customer Data resulting from CUSTOMER’s negligence, Third-Party Services, or any other means outside 1Strike’s reasonable control.
10. 1Strike Partners. 1Strike Partners may provide 1Strike and related services to CUSTOMER under separate terms or agreements with CUSTOMER, and 1Strike is not a party to such other agreements. 1Strike is not responsible in any way for services performed by 1Strike Partners with whom CUSTOMER contracts or through whom CUSTOMER accesses or installs 1Strike, including any virtual and/or cloud environment provided by a 1Strike Partner, and 1Strike is not responsible in any way for the provision or maintenance of such environments. Any dispute with a 1Strike Partner should be taken up directly with the applicable 1Strike Partner. 1Strike EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF CUSTOMER’S USE OF A 1Strike PARTNER RELATING TO 1Strike, REGARDLESS OF WHETHER SUCH PARTNER IS LISTED AS AN “AUTHORIZED PARTNER,” “CERTIFIED PARTNER,” OR OTHERWISE.
11. Third-Party Services
11.1 Third-Party Services in General. 1Strike may interoperate with Third-Party Services. All Third-Party Services are provided “As-Is,” and 1Strike does not endorse or warrant any Third-Party Services, regardless of whether they are provided by 1Strike or are required to use 1Strike. CUSTOMER expressly relieves 1Strike from all liability arising from CUSTOMER’s use of any Third-Party Services. Any use of Third-Party Services is solely between CUSTOMER and the applicable Third-Party Services provider. If CUSTOMER accesses Third-Party Services from 1Strike, it does so at its own risk and understands that this Agreement does not apply to the use of Third-Party Services. 1Strike shall not be responsible for any disclosure, modification, or deletion of Customer Data, including Personal Data, resulting from access by Third-Party Services. 1Strike is not responsible for downtime or unavailability of any Third-Party Services. Under no circumstances will 1Strike be liable for any indirect, special, incidental, punitive, or consequential damages, including but not limited to loss of data, business interruption, or loss of profits arising from the use or the inability to use a Third-Party Service.
11.2 Required Third-Party Services. Third-Party Services may require CUSTOMER or a 1Strike Partner, as applicable, to purchase or otherwise obtain a license to use such Third-Party Services. Payment of all Third-Party Services fees is the responsibility of CUSTOMER or the applicable 1Strike Partner, and all necessary permissions and licenses for Required Third-Party Services must be maintained in full force and effect for the duration of the License Term. 1Strike will not be responsible for any loss of features or availability of 1Strike related to CUSTOMER’s failure to maintain Required Third-Party Services as specified in this Subsection. If CUSTOMER fails to maintain Required Third-Party Services licenses as required under this provision, then 1Strike reserves the right to obtain such Third-Party Services license on behalf of CUSTOMER and invoice CUSTOMER accordingly.
11.3 Open-Source Software. Portions of 1Strike may include OSS that are subject to third-party terms and conditions. A list of all third-party OSS and their related terms used in 1Strike is available by sending an email to legal@1Strike.io. If there is a conflict between any third-party OSS terms and the terms of this Agreement, then the third-party OSS terms shall prevail but solely in connection with the related third-party OSS. Notwithstanding anything in this Agreement to the contrary, 1Strike makes no warranty or indemnity of any kind with respect to any third-party OSS.
12. 1Strike Warranty
12.1 1Strike Limited Warranties. 1Strike warrants that 1Strike will materially conform to the Documentation for a period extending thirty (30) days from the initial delivery of 1Strike by 1Strike to CUSTOMER or a 1Strike Partner, if applicable (“1Strike Warranty”). The 1Strike Warranty will not apply to 1Strike provided to CUSTOMER for no Fee or to subsequent Subscription Licenses or Perpetual Licenses purchased by CUSTOMER.
12.2 Limitations. 1Strike shall not be liable, and the 1Strike Warranty shall not apply, if:
12.2.1 CUSTOMER fails to material perform any of its obligations under this Agreement, including without limitation, failure to pay all applicable Fees when and to the extent due;
12.2.2 CUSTOMER accesses or uses 1Strike beyond the express rights provided herein;
12.2.3 The non-compliance of 1Strike results from changes to security or system settings, protocols, permissions, or any other act or omission of CUSTOMER that is outside of 1Strike’s reasonable control;
12.2.4 1Strike has not been properly installed and used as instructed by 1Strike;
12.2.5 1Strike has been modified other than by 1Strike or its authorized representatives;
12.2.6 CUSTOMER combines 1Strike with any other software, application, or other systems not provided or otherwise approved in writing by 1Strike, as such combination or use is the cause of 1Strikes's failure to function properly; or
12.2.7 CUSTOMER violates any applicable law.
12.3 Exclusive Remedy. 1Strike will, at its expense, correct or replace the applicable 1Strike functionality giving rise to a breach of the 1Strike Warranty. If 1Strike determines that it cannot correct or replace 1Strike, 1Strike may terminate this Agreement and refund all prepaid Fees to CUSTOMER for the remainder of the License Term, if applicable. The foregoing are 1Strike’s sole obligations and CUSTOMER’s exclusive remedies for any breach of the 1Strike Warranty.
13. Disclaimer. EXCEPT FOR THE EXPRESS WARRANTY CONTAINED IN THIS AGREEMENT, 1Strike IS PROVIDED “AS-IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY, ASSURANCE, CONDITION, OR DUTY REGARDING THE FUNCTIONALITY, PRIVACY, SECURITY, ACCURACY, AVAILABILITY, REPAIR, INTERRUPTIONS, FREE OF VIRUSES OR MALICIOUS CODE. TO THE EXTENT PERMITTED BY APPLICABLE LAW, 1Strike DISCLAIMS ANY AND ALL WARRANTIES OR CONDITIONS, WHETHER EXPRESS, IMPLIED, ORAL, OR WRITTEN, INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, REASONABLE CARE, AND/OR FITNESS FOR A PARTICULAR PURPOSE (WHETHER OR NOT 1Strike KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE). TO THE EXTENT PERMITTED BY APPLICABLE LAW, 1Strike FURTHER DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, AND/OR REPRESENTATIONS OF TITLE AND NON-INFRINGEMENT AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. 1Strike DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE FUNCTIONS PERFORMED BY 1Strike WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE OPERATION OF 1Strike WILL BE ERROR-FREE, OR THAT ALL DEFECTS IN 1Strike WILL BE CORRECTED. CUSTOMER AGREES THAT CUSTOMER’S USE OR PURCHASE OF 1Strike HEREUNDER IS NEITHER CONTINGENT ON THE DELIVERY OF ANY FUTURE FUNCTIONALITY OR FEATURES UNLESS A DESCRIPTION OF SUCH FUNCTIONALITY OR FEATURES IS ATTACHED HERETO. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY 1Strike OR ITS EMPLOYEES OR A 1Strike PARTNER SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF 1Strike’S OBLIGATIONS HEREUNDER.
14.1 1Strike Indemnification. 1Strike shall indemnify CUSTOMER for any suit or proceeding alleging that 1Strike
infringes any Intellectual Property Rights of a third party, provided that CUSTOMER: (i) gives 1Strike immediate
notice in writing of any such suit, proceeding, or threat thereof; (ii) permits 1Strike sole control, through counsel of 1Strike’s choice, to defend and/or settle such suit; and (iii) gives 1Strike all the needed information, reasonable assistance, and authority, at 1Strike’s expense, to enable 1Strike to defend and/or settle such suit. In the event the use of 1Strike provided by 1Strike is challenged by a third party, or in the event 1Strike wishes to minimize its potential liability hereunder, 1Strike may, at its sole option and expense and without any cost or harm to CUSTOMER: (i) procure for CUSTOMER the right to use 1Strike; (ii) substitute a functionally equivalent, non-infringing unit of 1Strike; (iii) modify 1Strike so that it no longer infringes but remains functionally equivalent; or (iv) terminate any Subscription Licenses effective immediately upon notice and cancel all future Subscription Fee responsibilities of CUSTOMER.
14.2 Customer Indemnification. CUSTOMER shall indemnify and hold harmless 1Strike and its Affiliates from and against any claims, actions, losses, damages, or other liabilities that arise out of or result from any claim of any third party relating to: (i) any dispute between CUSTOMER and a Customer Client; (ii) any breach by CUSTOMER of any covenant, representation, or warranty set forth in this Agreement; and (iii) any violation by CUSTOMER of any law.
15. Limitation of Liability
15.1 Limited Liability. 1Strike SHALL NOT BE LIABLE TO CUSTOMER UNDER, IN CONNECTION WITH, OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING CONTRACT,
WARRANTY, STRICT LIABILITY, OR NEGLIGENCE FOR ANY: (I) INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOSS OF BUSINESS); (II) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES OR PROFITS; (III) LOSS OF GOODWILL OR REPUTATION; (IV) USE, INABILITY TO USE, INTERRUPTION, DELAY, OR DAMAGE RESULTING FROM SYSTEM FAILURE, MALFUNCTION, SHUTDOWN, FAILURE TO ACCURATE TRANSFER OR READ INFORMATION, FAILURE TO PROVIDE CORRECT INFORMATION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES RESULTING FROM OR RELATED TO THE USE OR INABILITY TO USE 1Strike, HOWEVER CAUSED; (V) LOSS, INABILITY TO USE, OR RECOVERY OF ANY CUSTOMER DATA, OR BREACH OF CUSTOMER DATA OR SYSTEM SECURITY; OR (VI) COST OF REPLACEMENT GOODS OR SERVICES. THIS LIMITATION OF LIABILITY WILL APPLY WHETHER 1Strike WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
15.2 Aggregate Liability. CUSTOMER AGREES THAT THE TOTAL LIABILITY OF 1Strike TO CUSTOMER
ARISING OUT OF, IN CONNECTION WITH, OR RELATING TO THIS AGREEMENT OR CUSTOMER’S USE OF 1Strike WILL NOT EXCEED, IN THE AGGREGATE FOR ALL SUCH LIABILITIES, ONE THOUSAND U.S.
DOLLARS ($1,000), OR THE TOTAL AMOUNT OF FEES, IF ANY, ACTUALLY PAID BY CUSTOMER FOR USE OF
1Strike DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE MOST RECENT ACT OR OMISSION GIVING RISE TO 1Strike LIABILITY. CUSTOMER RELEASES 1Strike FROM ALL OBLIGATIONS, LIABILITY, CLAIMS, OR DEMANDS IN EXCESS OF THE LIMITATION. THIS LIMITATION SHALL SURVIVE AND APPLY EVEN IF ANY LIMITED WARRANTY OR REMEDY HEREUNDER IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
15.3 Allocation of Risk. CUSTOMER acknowledges and agrees that 1Strike provides 1Strike in reliance upon the disclaimers of warranty and limitation of liability provisions provided herein and that the terms of this Agreement reflect an allocation of risk between CUSTOMER and 1Strike (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the provisions herein form an essential basis of the bargain between CUSTOMER and 1Strike. If CUSTOMER is subject to applicable laws that prohibit CUSTOMER from entering into the risk allocation arrangement as set forth herein, then the terms will apply to CUSTOMER to the fullest extent permitted by applicable law, it being understood that CUSTOMER and 1Strike wish to enforce the provisions of this Agreement to the maximum extent permitted by applicable law.
16. General Provisions
16.1 Entire Agreement. This Agreement, together with all exhibits and addenda hereto, which are incorporated herein by reference, comprise the entire agreement between the Parties relating to the subject matter hereof. This Agreement supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning the subject matter of this Agreement.
16.2 Execution in Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed to be an original, and all of which, when taken together, shall constitute one and the same instrument.
16.3 Amendments. This Agreement may not be modified or amended except in writing, signed by a duly authorized representative of each Party; no other act or custom shall be deemed to amend or modify this Agreement.
16.4 Rights Cumulative. No right or remedy conferred upon or reserved to either of the Parties is intended to be exclusive of any other right or remedy (unless such intent is expressly set forth in such provision), and every right and
remedy shall be cumulative and in addition to any other right or remedy, now or hereafter legally existing upon any default.
16.5 Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the Parties shall mutually agree on an alternate, legally valid, and enforceable provision. The remainder of this Agreement shall continue in full force and effect to the extent that continued operation under this Agreement without the unenforceable provision is consistent with the intent of the Parties as expressed in this Agreement.
16.6 Waiver. No term or provision of this Agreement shall be deemed waived, and no breach excused, unless such waiver or consent is in writing and signed by the Party that has given such waiver or excused such breach.
16.7 Headings. The headings in this Agreement and any and all addenda are solely for convenience of reference and shall not be given any effect in the construction or interpretation of this Agreement or any addenda hereto.
16.8 Assignment. 1Strike may freely transfer and/or assign this Agreement at its discretion without the consent of CUSTOMER. CUSTOMER may not assign or otherwise transfer its rights and/or obligations under this Agreement or any addenda without the prior written consent of 1Strike. Notwithstanding the foregoing, no consent shall be required for an assignment of this Agreement and all applicable addenda made pursuant to a merger, consolidation, or the acquisition of all or substantially all of the business and assets of 1Strike or CUSTOMER. This Agreement will bind and inure to the benefit of the Parties and their successors and permitted assigns.
16.9 Independent Contractors. The relationship of the Parties hereunder shall be that of independent contractors. Nothing in this Agreement shall be construed to constitute a partnership between or joint venture of the Parties, nor shall either Party be deemed the agent of the other Party or have the right to bind the other Party in any way without the prior written consent of such Party, except as specifically provided in this Agreement.
16.10 Injunctive Relief. CUSTOMER acknowledges that a breach of the Proprietary Rights Section of this Agreement could cause irreparable injury to 1Strike that may not be adequately compensated in monetary damages. In the event of such a breach, the 1Strike shall be entitled to seek equitable relief to protect its interests, including but not limited to preliminary and permanent injunctive relief.
16.11 Dispute Resolution. For any dispute with 1Strike, CUSTOMER agrees first to contact 1Strike at
legal@1Strike.io and attempt to resolve this dispute with 1Strike informally. In the event the Parties are unable to resolve the dispute informally, 1Strike and CUSTOMER agree that any controversy or claim arising out of or relating to this Agreement (except for actions seeking injunctive relief) shall be settled by binding arbitration in accordance with the Commercial Rules of the American Arbitration Association. The arbitration shall be conducted by a single arbitrator to be selected by agreement of the Parties not later than ten (10) days after delivery of the demand for arbitration or, failing such agreement, appointed pursuant to the Commercial rules of the American Arbitration Association. Unless otherwise agreed upon by the Parties, such arbitrator shall be a retired judge or attorney licensed to practice law in the State of Delaware, as applicable, with substantial experience in litigation or disputes of similar substance. The arbitration shall be conducted in the State of Delaware, unless otherwise agreed by the Parties. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The prevailing Party in any arbitration shall be entitled, in addition to any other rights or remedies it may have, to reimbursement for its expenses incurred thereby including arbitration costs, reasonable attorneys’ fees, and arbitrators’ fees. This arbitration provision is governed by the Federal Arbitration Act.
16.12 Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Delaware, excluding that body of law pertaining to conflicts of law. Any dispute between the Parties that is excluded from the arbitration agreement or that cannot be heard in small claims court shall be resolved in the federal courts located in the State of Delaware, and the Parties agree and submit to the personal and exclusive jurisdiction and venue of these located in the State of Delaware.
16.13 Force Majeure. Neither Party shall be liable for any failure or delay in its performance under this Agreement or any and all addenda due to circumstances beyond its reasonable control (other than the payment of sums due), provided that it notifies the other Party as soon as practicable and uses its best efforts to resume performance (such
a “Force Majeure Event”). A Force Majeure Event includes, without limitation, strikes, lock-outs, labor troubles, inability to procure materials or services, including substantial price increases in materials or services, impacts of pandemics, epidemics, failure of power, riots, insurrection, war, or other reasons of like nature not the fault of such Party. The Party shall immediately provide notice to the other Party of such delay, and the performance of such act shall be excused for the period of the delay, and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay. Each Party agrees to strive to develop and maintain adequate backup systems, procedures, and resources to assure their respective performance. Whether an event is a Force Majeure Event shall be at the sole discretion of 1Strike.
16.14 Notices. 1Strike may deliver notice to CUSTOMER under this Agreement using electronic mail or a general notice on or through the 1Strike website. CUSTOMER may give notice to 1Strike at any time by letter delivered by first-class postage prepaid mail or overnight courier to the following addresses:
For Purchases Inside the United States
1350 E Street SE, Suite 432
CUSTOMER may contact 1Strike at the above addresses for questions regarding this Agreement or by email to:
legal@1Strike.io. Either Party may at any time designate another address for the receipt of notice by notifying the
other Party in accordance with this subsection.
16.15 Survival. Any provision of this Agreement which contemplates performance subsequent to the expiration or earlier termination of this Agreement, or which expressly states that it shall survive termination of the Agreement, shall so survive such expiration or termination and shall continue in full force and effect until fully satisfied.
16.16 No Advice from 1Strike. CUSTOMER acknowledges that it has had the opportunity to review this Agreement and the transactions contemplated by it with its own legal counsel. CUSTOMER relies solely on its counsel and not on any statements or representations of 1Strike or any of its agents for legal advice concerning the transactions contemplated by this Agreement except for the warranties and covenants expressly stated herein.
“Affiliates” means any partnership, joint venture, subsidiary, and other affiliated entities (whether incorporated or
unincorporated) in which a Party has an ownership, managerial, or operational interest or which now or hereafter directly or indirectly Controls, is Controlled by, or is under common Control with, such Party, including multiple levels of Controlled corporations. CUSTOMER shall notify 1Strike in writing of the identity of its Affiliates and shall be jointly and severally liable for such Affiliate’s performance of its obligations under this Agreement.
“Authorized Servers” means the number of servers that may be monitored by 1Strike under this Agreement and
for whom CUSTOMER purchased a Subscription License or Perpetual License, as applicable. Authorized Servers are limited to CUSTOMER’s or its Affiliate’s servers.
“Authorized Users” means the number of individuals who are authorized to use 1Strike under the rights granted
to CUSTOMER by 1Strike pursuant to this Agreement and for whom CUSTOMER purchased a Subscription License or Perpetual License, as applicable. Authorized Users may include CUSTOMER’s employees, Affiliates, contractors, or agents with whom CUSTOMER transacts business. CUSTOMER is responsible for the access and use of 1Strike by CUSTOMER’s Authorized Users as if the Authorized User was a Party to this Agreement.
“Confidential Information” means all nonpublic information disclosed under this Agreement, including, without limitation, proprietary and confidential matters concerning 1Strike, non-public features of 1Strike, and 1Strike's
current or proposed business operations, security and financial information, technical data, inventions, developments,
research, marketing strategies, business methods, information related to pricing, the terms and conditions of this
Agreement, and other similar information gained in connection with this Agreement, as well as technology, ideas, formulae, know-how, Documentation, procedures, algorithms and trade secrets embodied in 1Strike, technical
documentation, solution methodology, user manuals, and other content related to 1Strike (including any future
Updates, Upgrades, developments and adaptations to 1Strike). For purposes of this Agreement, “Confidential
Information” shall also include third-party nonpublic information that is disclosed by either Party under this Agreement or through 1Strike. Confidential Information shall not include any information that: (a) is or becomes generally known
or available to the public through no fault of the receiving Party; (b) is already known by the receiving Party at the time of disclosure through no wrongful act of the receiving Party; or (c) is independently developed by the receiving Party without the use of or reference to the Confidential Information provided herein. “Control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Customer Client” means any third party who has shared or entrusted CUSTOMER with Personal Data which is stored, read, or otherwise made available through 1Strike.
“Customer Data” means all of CUSTOMER’s or Customer Clients’ content, information, and data input into CUSTOMER’s instance of 1Strike, including, without limitation, any: (i) transactional data; (ii) contact data; (iii) market or account data; (iv) Personal Data; (v) Confidential Information; and (vi) proprietary information or information related to the Intellectual Property Rights of CUSTOMER or Customer Clients.
"Documentation" means any materials provided by 1Strike to CUSTOMER to assist CUSTOMER with the use of 1Strike , whether or not created before, during, or after the term of this Agreement, and includes, without limitation, any operational, functional, and technical specifications and any standard guides, manuals, or related materials.
“Feedback” means any input, suggestions, communications, or materials sent or transmitted from CUSTOMER to 1Strike suggesting or recommending changes to 1Strike, including, without limitation, suggestions for new features or functionality or any comments, questions, or the like.
“Fees” means, collectively, all fees required to be paid by CUSTOMER to 1Strike under this Agreement or any applicable addenda. Unless stated otherwise, all Fees are payable in US Dollars. If CUSTOMER purchases 1Strike from a 1Strike Partner, 1Strike will look first to the applicable 1Strike Partner for payment of all applicable Fees.
“1Strike” means 1Strike, a Delaware Corporation, and 1Strike’s Affiliates, including 1Strike Security Sp. z o.o., a Polish Corporation.
"1Strike" means 1Strike’s modified FreeBSD operating system delivered as an image and software currently.
developed by 1Strike and any later-developed software or applications that 1Strike incorporates into 1Strike.
"1Strike Hardware Appliance" means a device provided by 1Strike with 1Strike installed.
“1Strike Partner” means 1Strike's channel partners, managed service providers (MSPs), or other service providers who have entered into an agreement with 1Strike for the distribution of 1Strike.
“Intellectual Property Rights” means all of the following in any and all jurisdictions throughout the world (whether registered or unregistered): (i) patents and patent applications (including continuations, continuations-in-part, divisional, reexaminations, reissues, and extensions thereof); (ii) copyrights; (iii) trademarks, trade dress, service marks and other similar designations of source of origin, together with the goodwill symbolized by or associated with the foregoing; (iv) trade secrets; and (v) all other proprietary or intellectual property rights under any law or international convention throughout the world, including all registrations of, and applications for, any of the items described in clauses (i)-(iv) (inclusive).
"License" means either the Subscription License or Perpetual License, as applicable, purchased by CUSTOMER. The License is limited to the number of Authorized Users and/or Authorized Servers purchased by CUSTOMER. CUSTOMER's right to the License shall not be construed as granting any additional rights or privileges other than as expressly set forth in this Agreement or applicable addenda.
“License Term” means the Subscription Period (in the case of a Subscription License) or perpetuity (in the case of a
“Malicious Code” means viruses, worms, time bombs, Trojan horses, and other harmful code, files, scripts, agents, or programs that restrict, interfere with, or circumvent the operation of 1Strike.
“Marks” means all trademarks, service marks, and trade names of 1Strike, its partners, and licensors, including, without limitation: 1Strike Privileged Access Management (PAM), 1Strike, 1Strike One, and the associated designs and logos.
“Open Source Software” or “OSS” means all software that is distributed as “open source software” or under similar
licensing or distribution terms (including, without limitation, to the GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Affero General Public License (AGPL), Mozilla Public License (MPL), BSD licenses, the Artistic License, the Netscape Public License, the Sun Community Source License (SCSL), the Sun Industry Standards License (SISL) and the Apache License).
"Perpetual License" means License to 1Strike in perpetuity upon payment of a one-time Perpetual License Fee
and all applicable Support Fees.
“Perpetual License Fee” means the fee charged to CUSTOMER by 1Strike for each Perpetual License and excluding Support Fees applicable to the Perpetual License.
“Personal Data” means (i) a natural person’s name, street address, telephone number, e-mail address, photograph, social security number, or tax identification number, driver’s license number, passport number, credit card number, bank information, or customer or account number; (ii) any information which would qualify as “personally identifying information” under the Federal Trade Commission Act, as amended; (iii) any information which would qualify as “protected health information” under the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act (collectively, “HIPAA”); and (iv) any other piece of information that allows the identification of such natural person, or his or her family, or permits the collection or analysis of any data related to an identified person’s health or sexual orientation.
“Purchase Order” means any documentation that specifies the Licenses purchased by CUSTOMER and related terms, including, without limitation, Subscription Fees, Subscription Period, and Required Third-Party Services entered into between 1Strike and CUSTOMER from time to time. Purchase Orders shall be deemed incorporated herein by reference.
“Related Data” means data or information (excluding Customer Data) associated with or arising out of the use of 1Strike (including, without limitation, data associated with requests made to, and responses generated in connection
"Required Third-Party Services" means the Third-Party Services that are identified in the Documentation as required for the proper functionality of 1Strike.
"Specific Cloud Image" means a 1Strike image prepared by 1Strike for the specific platform specified by CUSTOMER at the time of purchase of 1Strike that can be installed by CUSTOMER in a cloud environment, such
as Amazon Web Services, Google Cloud, or Microsoft Azure.
"Subscription Fees" means the fees paid by CUSTOMER to 1Strike for a Subscription License.
"Subscription License" means a License to 1Strike paid on an ongoing basis and subject to payment of all Subscription Fees.
"Subscription Period" means the period of time for which CUSTOMER is subscribed to 1Strike under a Subscription License.
“Support Fees” means the fees charged by 1Strike to CUSTOMER for Support Services for a single Perpetual License.
“Support Services” means the maintenance, technical support, or other work performed by 1Strike for CUSTOMER under a Perpetual License.
“Third-Party Services” means any application, software, or service that is provided by third parties, interoperates with 1Strike, or is identified as Third-Party Services in the Documentation.
“Update” means all new versions, updates, revisions, bug fixes, patches, or other alterations of 1Strike that are intended to correct an error in 1Strike or are required to correct a breach of warranty or other violation of this Agreement or applicable law.
“Upgrade” means all new versions, updates, revisions, or other alterations to 1Strike that are intended to improve,
expand, or otherwise enhance the functionality of 1Strike.
"Virtual Appliance Image" means a 1Strike image sent by 1Strike to CUSTOMER that can be installed in a virtual
environment, such as VMware.