Radiant Security Services Agreement
This Radiant Security Services Agreement (“Agreement”) is made and entered into as of the date of Customer’s (defined below) acceptance of this Agreement as described below (“Effective Date”), between Radiant Security Inc. (“Radiant Security”), a Delaware corporation having a principal place of business at 691 S. Milpitas BLVD, Milpitas, CA 95035, USA and Customer (defined below). This Agreement sets forth the terms pursuant to which Customer will be permitted to use the Services under the applicable Order Form (defined below). In the event of a conflict with this Agreement and the applicable Order Form, the terms of the Order Form shall prevail.
BY CLICKING A BOX INDICATING YOUR ACCEPTANCE ON THE ORDER PAGE THAT SUMMARIZES YOUR ORDER (THE “ORDER FORM”), YOU: (A) AGREE TO THIS AGREEMENT ON BEHALF OF THE ORGANIZATION, COMPANY, EMPLOYER, OR OTHER LEGAL ENTITY FOR WHICH YOU ACT (“CUSTOMER”); AND (B) REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND Customer AND ITS AFFILIATES (DEFINED BELOW) TO THIS AGREEMENT.
“Affiliate” means any corporation, partnership, joint venture, or other entity: (i) as to which a party owns or controls, directly or indirectly, stock or other interest representing more than 50% of the aggregate stock or other interest entitled to vote on general decisions reserved to the stockholders, partners, or other owners of such entity; (ii) if a partnership, as to which a party or another Affiliate is a general partner; or (iii) that a party otherwise is in common control with, controlled by, or controls in matters of management and operations.
- “**Customer Systems”**means Customer’s equipment, systems and devices which are monitored as part of the Services.”
- “Documentation” means Radiant Security provided user documentation, in all forms, relating to the Services (e.g., user manuals, on-line help files).
- “Policy Documents” means the specific Radiant Security Services for which Customer has subscribed, described in the applicable Order Form. https://www.radiantsecurity.ai/trust/
- “Scope Limitations” means the limitations on Customer’s use of the Services detailed in Section 2 of this Agreement.
- “Submitted Data” means data submitted by Customer to the Services which data (a) pertains to Customer Systems and (b) was provided to the Services through an API made available by Customer.
- “Technical Support Services” means the technical customer support services described at https://www.radiantsecurity.ai/trust/.
2. Use of the services
- License Grant.
- Subject to the terms and conditions of this Agreement, Radiant Security hereby grants Customer a limited, worldwide, non-exclusive, non-transferable (except as permitted in Section 11.3) right during the term of this Agreement to use the Services and Documentation. Customer’s right to use the Services is subject to the Scope Limitations in this Section 2.
- Customer hereby grants to Radiant Security the right to make calls to a Customer-provided API, so that Radiant Security can obtain Submitted Data as reasonably necessary for Radiant Security to provide the Service. Customer shall maintain the API and ensure it is accessible to Radiant Security. Customer acknowledges that Radiant Security’ ability to provide the Service depends on Radiant Security’s ability to timely issue requests to, and receive responses from, such API.
Authorized Users. Use of the Services shall be limited to Customer’s employees and independent contractors (“”). Customer shall be responsible for: (a) identifying and authenticating users, (b) approving access to such users to the Services, and (c) maintaining the confidentiality of all usernames, passwords and user account information. Customer shall be responsible for all activities that occur under its users’ usernames, passwords or accounts. Radiant Security is not responsible for any harm caused by Customer’s users, including individuals who were not authorized to have access to the Services.
Technical Support Services and Training. For so long as Customer is current with its payment of the fees owed to Radiant Security, Radiant Security will (a) perform the Services in accordance with the security requirements described at ; (b) perform the Technical Support Services during the term of this Agreement, (c) provide Customer with its general training on use of the Services, as described in the applicable Order Form.
Use Restrictions. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Customer will not, and will not permit or authorize third parties to: (a) rent, lease, or otherwise permit third parties to use the Services or Documentation; (b) use the Services to provide Services to third parties, other than Affiliates; (c) transmit viruses, worms, malicious codes or similar through the Services; nor (d) circumvent or disable any security or other technological features or measures of the Services.
Submitted Data. Radiant Security may use Submitted Data to perform its obligations hereunder. Customer represents and warrants that is has obtained all necessary consents, permissions or approvals as may be necessary for Customer to submit such Submitted Data to Radiant Security in connection with the delivery of the Services.
Analysis and Insights. Nothing in this Agreement shall restrict Radiant Security from using and exploiting in full the analyses, insights, learnings, and Services improvements (including improvements to algorithms from machine learning) obtained or resulting from the Services or from using, Submitted Data to create such analyses, insights and learnings; provided, however, any public disclosure of such analyses, insights and learnings shall be done in such a way that Customer is not identifiable.
Service Levels. Service levels for the Services are set forth at https://www.radiantsecurity.ai/trust/.
Compliance with Laws. Customer will use the Services and Documentation in compliance with all applicable laws and regulations, and refrain from any unethical conduct or any other conduct that tends to damage the reputation of Radiant Security or the Services.
Protection against Unauthorized Use. Customer will use its best efforts to prevent any unauthorized access or use of the Services and Documentation and immediately notify Radiant Security in writing of any unauthorized access or use that comes to Customer’s attention. If there is unauthorized access or use by anyone who obtained access to the Services directly or indirectly through Customer, Customer will take, at its expense, all steps reasonably necessary to terminate the unauthorized access or use. At its expense, Customer will cooperate and assist with any actions taken by Radiant Security to prevent or terminate unauthorized access or use of the Services or Documentation, and remediation of the event.
Reservation of Rights. Radiant Security grants to Customer a limited right to use the Services and Documentation under this Agreement. Customer will not have any rights to the Services or Documentation except as expressly granted in this Agreement. Radiant Security reserves to itself all rights to the Services and Documentation not expressly granted to Customer in accordance with this Agreement.
- Radiant Security and Customer Acknowledgements. The parties hereby agree that Customer is solely responsible for compliance with applicable data privacy and employment laws and regulations applicable to Customer’s use of the Services and shall operate in compliance with such laws. Customer implements, and makes any decisions based on, any outputs of the Services in its sole discretion and at its own risk.
- Policy Documents. The Policy Documents shall be effective 30 days from Customer’s material change to a specific document.
4. Fees and Payment
- Fees and Payment Terms
- Customer will pay Radiant Security the fees and any other amounts owing under this Agreement, plus any applicable sales, use, excise, or other taxes, as specified in the applicable Order Form. Unless otherwise agreed, Customer will pay all amounts due within 30 days of the date of the applicable invoice. The parties agree that Radiant Security may change the fees for Services at any time upon thirty (30) days prior written notice to Customer, effective on the next renewal period.
- Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Customer will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Radiant Security to collect any amount that is not paid when due. All amounts payable under this Agreement are denominated in United States dollars, and Customer will pay all such amounts in United States dollars.
Taxes. Other than net income taxes imposed on Radiant Security, Customer will bear all taxes, duties, and other governmental charges (collectively, “”) resulting from this Agreement. Customer will pay any additional taxes as are necessary to ensure that the net amounts received by Radiant Security after all such taxes are paid are equal to the amounts that Radiant Security would have been entitled to in accordance with this Agreement as if the taxes did not exist.
5. Term and Termination
Term. Unless otherwise agreed, this Agreement will commence upon the Effective Date and shall remain in effect until the termination or expiration of all Order Forms, unless otherwise terminated earlier as provided hereunder. If there are no Order Forms in effect for a 12 consecutive month period, this Agreement shall automatically terminate. The Services are subject to specific renewal periods specified in the applicable Order Form.
Termination for Material Breach. If either party fails to perform any of its material obligations under this Agreement, the other party may terminate this Agreement upon written notice, if the matters set forth in a breach notice are not cured to the other party’s reasonable satisfaction within the 30-day period. Without limiting the foregoing, any failure by Customer to timely pay to Radiant Security any amounts owing under this Agreement will constitute a material breach of this Agreement.
Post-Termination Obligations. If this Agreement is terminated for any reason, (a) Customer will pay to Radiant Security any fees, reimbursable expenses, compensation, or other amounts that have accrued prior to the effective date of the termination, (b) any and all liabilities accrued prior to the effective date of the termination will survive, and (c) Customer will provide Radiant Security with a written certification signed by an authorized Customer representative certifying that all use by Customer of the Services and Documentation has been discontinued. The parties agree that Radiant Security shall retain a copy of Submitted Files for the period, and subject to the fees, specified in the applicable Order Form.
6. Warranties and Disclaimer
Mutual Warranties. Each party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement; and (c) the execution, delivery, and performance of this Agreement does not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 6, RADIANT SECURITY MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. RADIANT SECURITY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. RADIANT SECURITY D OES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SERVICES. RADIANT SECURITY DOES NOT WARRANT THAT THE SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE SERVICES WILL BE SECURE, UNINTERRUPTED, OR THAT CUSTOMER’S USE OF THE SERVICES SHALL RESULT IN ITS COMPLIANCE WITH REGULATORY REQUIREMENTS APPLICABLE TO ITS PLANS. RADIANT SECURITY EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON CUSTOMER’S USE OF THE SERVICES.
7. Intellectual property infringement
Infringement Defense. Radiant Security will defend Customer from any actual or threatened third party claim that the Services infringe or misappropriate any intellectual property right of any third party during the term of this Agreement if: Customer gives Radiant Security prompt written notice of the claim; Radiant Security has full and complete control over the defense and settlement of the claim; and Customer provides assistance in connection with the defense and settlement of the claim as Radiant Security may reasonably request.
Infringement Indemnification. Radiant Security will indemnify Customer against: all damages, costs, and attorneys’ fees finally awarded against Customer in any proceeding under Section 7.1; all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Customer in connection with the defense of such proceeding (other than attorneys’ fees and costs incurred without Radiant Security’s consent after Radiant Security has accepted defense of such claim); and if any proceeding arising under Section 7.1 is settled, all amounts paid to any third party as agreed to by Radiant Security in settlement of any such claims.
Mitigation of Infringement Action. If Customer’s use of the Services is, or in Radiant Security’s reasonable opinion is likely to become, enjoined or materially diminished as a result of a proceeding arising under Section 7.1, then Radiant Security will either: procure the continuing right of Customer to use the Services; replace or modify the Services in a functionally equivalent manner so that it no longer infringes; or if, despite its commercially reasonable efforts, Radiant Security is unable to do either (a) or (b), Radiant Security will terminate the licenses with respect to the Services subject to the infringement claim and refund to Customer all unused Fees pre-paid by Customer.
Exclusions. Radiant Security will have no obligation under this Section 7 for any infringement to the extent that it arises out of or is based upon: the combination, operation, or use of the Services with a third party product or service if such infringement was based on such combination, operation, or use; designs, requirements, or specifications for the Services required by or provided by Customer, if the alleged infringement was based on such designs, requirements, or specifications; use of the Services outside of the scope of the license granted to the Customer; Customer’s failure to use the latest release of the Services or to comply with instructions provided by Radiant Security, if the alleged infringement Customer’s use of a release other than the latest release; any modification of the Services not made by Radiant Security where such modification was the basis for infringement; or unauthorized use of the Services. Customer will reimburse Radiant Security for any costs or damages that result from these actions.
Exclusive Remedy. This Section 7 states Radiant Security’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for the actual or alleged infringement of any third-party intellectual property right by the Services.
Defense. Customer will defend Radiant Security from any actual or threatened third party claim arising out of or based upon Customer’s use of the Services or Customer’s breach of any of the provisions of this Agreement. Radiant Security will: (a) give Customer prompt written notice of the claim; (b) grant Customer full and complete control over the defense and settlement of the claim; and (c) assist Customer with the defense and settlement of the claim as Customer may reasonably request and at Customer’s expense.
Indemnification. Customer will indemnify Radiant Security against: (a) all damages, costs, and attorneys’ fees finally awarded against Radiant Security in any proceeding under Section 8.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Radiant Security in connection with the defense of such proceeding (other than attorneys’ fees and costs incurred without Customer’s consent after Customer has accepted defense of such claim); and (c) if any proceeding arising under Section 8.1 is settled, Customer will pay any amounts to any third party agreed to by Customer in settlement of any such claims.
8. Limitation of liability
Disclaimer of Indirect Damages.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, RADIANT SECURITY WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF RADIANT SECURITY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
Cap on Liability. UNDER NO CIRCUMSTANCES WILL RADIANT SECURITY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO RADIANT SECURITY DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY RADIANT SECURITY TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 9 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
Definition. “” means any trade secrets or other information of a party, whether of a technical, business, or other nature (including, without limitation, information relating to a party’s technology, software, products, services, designs, methodologies, business plans, finances, marketing plans, customers, prospects, or other affairs), that is disclosed to a party during the term of this Agreement and that such party knows or has reason to know is confidential, proprietary, or trade secret information of the disclosing party. Confidential Information does not include any information that: (a) was known to the receiving party prior to receiving the same from the disclosing party in connection with this Agreement; (b) is independently developed by the receiving party without use of or reference to the Confidential Information of the disclosing party; (c) is acquired by the receiving party from another source without restriction as to use or disclosure; or (d) is or becomes part of the public domain through no fault or action of the receiving party. Nothing in this Section 10 will limit Radiant Security’s ability to use Submitted Data in accordance with Section 2.6.
Restricted Use and Nondisclosure. During and after the term of this Agreement, each party will: (a) use the other party’s Confidential Information solely for the purpose for which it is provided; (b) not disclose the other party’s Confidential Information to a third party unless the third party must access the Confidential Information to perform in accordance with this Agreement, and the third party has executed a written agreement that contains terms that are substantially similar to the terms contained in this Section 10; and (c) maintain the secrecy of, and protect from unauthorized use and disclosure, the other party’s Confidential Information to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature.
Required Disclosure. If either party is required by law to disclose the Confidential Information or the terms of this Agreement, the disclosing party must give prompt written notice of such requirement before such disclosure, to the extent permitted by law, and assist the non-disclosing party in obtaining an order protecting the Confidential Information from public disclosure.
Return of Materials. Upon the termination or expiration of this Agreement, or upon earlier request, each party will deliver to the other all Confidential Information that it may have in its possession or control. Notwithstanding the foregoing, neither party will be required to return materials that it must retain in order to receive the benefits of this Agreement or properly perform in accordance with this Agreement.
Feedback. Radiant Security may use and exploit in any manner on a worldwide, irrevocable, royalty-free basis any feedback or requests provided by Customer.
Relationship. Radiant Security will be and act as an independent contractor (and not as the agent or representative of Customer) in the performance of this Agreement. This Agreement will not be interpreted or construed as: (a) creating or evidencing any association, joint venture, partnership, fiduciary relationship, or franchise between the parties; (b) imposing any partnership, franchise or fiduciary obligation or liability on either party; or (c) prohibiting or restricting Radiant Security’s performance of any services for any third party or the provision of products to any third party.
Assignability. Customer may not assign its right, duties, or obligations under this Agreement without prior written notice to the Radiant Security, other than in connection with a sale or change of control of Customer whether by merger or otherwise, where the applicable Plan is also transferring. If notice is given, this Agreement will bind Customer’s successors and assigns. Any attempt by Customer to transfer its rights, duties, or obligations under this Agreement except as expressly provided in this Agreement is void.
Subcontractors. Radiant Security may utilize a subcontractor or other third party to perform its duties under this Agreement so long as Radiant Security remains responsible for all of its obligations under this Agreement.
Reference. Subject to Section 10 regarding confidentiality, Customer will: (a) make one or more representatives reasonably available for reference inquiries from potential Radiant Security customers partners, and investors; (b) permit Radiant Security to create and publish a case study describing in general terms the nature of Customer’s use of the Services; (c) permit Radiant Security to issue and publish a press release containing a quotation from a representative of Customer announcing that Customer has subscribed to use the Services and the general context of the intended use; and (d) allow Customer’s name and logo to be posted on Radiant Security’s web site and in marketing and advertising materials, subject to compliance with Customer’s brand guidelines or other specifications regarding logo usage.
Non-solicitation. During the term of this Agreement and for a period of one year thereafter, Customer will not, directly or indirectly, employ or solicit the employment or services of a Radiant Security employee or independent contractor without the prior written consent of Radiant Security.
Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth above or to such other address as the notifying party has been advised in writing by the other party hereto. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.
Force Majeure. Radiant Security will not be liable for or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond Radiant Security’s reasonable control, so long as Radiant Security uses all commercially reasonable efforts to avoid or remove such causes of non-performance.
Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of California, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in Santa Clara County, California, in connection with any action arising out of or in connection with this Agreement.
Commencing Legal Action. An action for breach of this Agreement or any other action otherwise arising out of this Agreement must be commenced within one year from the date the right, claim, demand, or cause of action first occurs or be barred forever.
Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
No Third-Party Beneficiaries. Radiant Security and Customer intend that this Agreement shall not benefit or create any right or cause of action in or on behalf of, any person other than the Customer and Radiant Security, including any permitted assignees.
Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Services under this Agreement is found to be illegal, unenforceable, or invalid, Customer’s right to use the Services will immediately terminate.
Entire Agreement. This Agreement, including all exhibits, is the final and complete expression of the agreement between these parties regarding Customer’s use of the Services. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior nondisclosure or comparable agreement between the parties executed prior to this Agreement being executed, nor does it affect the validity of any agreements between the parties relating to professional services relating to the Services that Radiant Security may provide. No employee, agent, or other representative of Radiant Security has any authority to bind Radiant Security with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. This Agreement may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought. Radiant Security will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Customer in any receipt, acceptance, confirmation, correspondence, or otherwise, unless Radiant Security specifically agrees to such provision in writing and signed by an authorized agent of Radiant Security.