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.
DEFINITIONS
“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.blastradius.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.blastradius.ai/trust].
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.
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.blastradius.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.
Acknowledgements
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.
FEES AND PAYMENT
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.
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.
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.
Disclaimer. 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.
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.
Customer INDEMNIFICATION
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.
LIMITATIONS 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.