This Master Services Agreement (the “Agreement”) is entered into between Hacktron AI Inc., a Delaware corporation (“Hacktron”) and the entity that executes an Order referencing these Terms (the “Customer”). Hacktron and Customer may each be referred to herein individually as a “Party” and collectively as the “Parties.” By executing an Order that incorporates this Agreement by reference (including, for the avoidance of doubt, by purchasing a subscription to the Service through Hacktron’s website), Customer acknowledges that it has read, understood, and agrees to be bound by this Agreement. This Agreement is effective as of the date Customer executes an Order referencing these Terms (the “Effective Date”).
1. DEFINITIONS
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a Party, where “control” means ownership of more than fifty percent (50%) of the outstanding voting securities or equity interests of such entity.
“Authorized User” means an individual employee, contractor, or agent of Customer who is authorized by Customer to access and use the Service solely on Customer’s behalf under a valid Order, and for whom a subscription seat has been purchased.
“Customer Data” means any data, content, or information submitted by or on behalf of Customer or its Authorized Users to the Service.
“Documentation” means any technical or end-user documentation relating to the Service that Hacktron makes generally available to its customers, as updated by Hacktron from time to time.
“Feedback” means any suggestions, ideas, enhancement requests, recommendations, or other feedback provided by Customer or its Authorized Users to Hacktron relating to the Service.
“Fees” means the amounts payable by Customer to Hacktron as set forth in an Order.
“Intellectual Property Rights” means all patents, copyrights, trademarks, trade secrets, moral rights, database rights, and any other intellectual property rights recognized under applicable law.
“Malicious Code” means any viruses, worms, time bombs, Trojan horses, and other harmful or malicious code, files, scripts, agents, or programs.
“Order” means a written or electronic ordering document executed by both Parties, or an order placed through Hacktron’s website, that references this Agreement and specifies, among other things, the Service to be provided, the number of Authorized User subscriptions, applicable Fees, and the Initial Term.
“Service” means Hacktron’s proprietary cloud-hosted, SaaS-deployed security software platform identified in the applicable Order, including any updates, upgrades, or new versions that Hacktron elects, in its sole discretion, to make generally available to its customers as part of their subscription, and the Documentation.
“SLA” means the service level agreement available at Service Level Agreement.
“Subscription Term” means the Initial Term together with any Renewal Terms.
“Third-Party Services” means any software, platforms, services, data, or content owned or operated by third parties that interoperate with, or are accessed through, the Service.
2. THE SERVICE
2.1. Access Rights. Subject to the terms and conditions of this Agreement (including timely payment of all applicable Fees), Hacktron hereby grants to Customer, during the Subscription Term, a limited, non-exclusive, non-transferable, non-sublicensable right to access and use the Service solely: (a) for Customer’s internal business purposes; (b) by Authorized Users up to the maximum number of subscription seats specified in the applicable Order; and (c) in accordance with the Documentation and this Agreement.
2.2. Orders. The Service must be ordered by Customer through Orders. Each Order is incorporated into and governed by this Agreement. In the event of a conflict between an Order and this Agreement, this Agreement will control unless the Order expressly states that it supersedes a specific provision of this Agreement.
2.3. Authorized Users. Customer is responsible for: (a) ensuring that each Authorized User complies with this Agreement; (b) all acts and omissions of Authorized Users with respect to the Service; (c) maintaining the confidentiality of all account credentials; and (d) promptly notifying Hacktron of any unauthorized access or use of any account or credentials. Customer will not share login credentials among multiple individuals.
2.4. Technical Support. During the Subscription Term, Hacktron will use commercially reasonable efforts to comply with the SLA and will provide Customer with technical support for the Service in accordance with Hacktron’s standard support policy, as published on Hacktron’s website or customer portal and updated from time to time (“Support Policy”). The Support Policy currently in effect at the time of the Effective Date is incorporated herein by reference. Hacktron reserves the right to update the Support Policy, provided that no update will materially diminish the support to which Customer is entitled during the then-current Subscription Term. Customer will: (a) designate at least one (1) technical contact responsible for coordinating support requests; and (b) provide Hacktron with reasonably sufficient information and cooperation to diagnose and resolve support issues.
2.5. Third-Party Services. If Customer elects to interoperate, or have Hacktron interoperate, any Third-Party Services with the Service, Hacktron makes no representations, warranties, or covenants of any kind with respect to such Third-Party Services, including their security, functionality, availability, or accuracy. Customer’s use of any such Third-Party Services is at Customer’s sole risk and subject to such third parties’ terms and policies.
2.6. Hacktron’s Use of AI. Customer acknowledges that the Service may be powered or enhanced by, or may otherwise utilize or leverage, certain artificial intelligence and machine learning technologies, tools, and services (“AI Technology”). In providing the Service, Hacktron may transmit or otherwise make available Customer Data to third-party AI Technology providers (“AI Providers”) solely to the extent necessary to deliver the Service to Customer. Hacktron will provide Customer with reasonably requested information regarding such AI Technology and AI Providers upon request.
2.6.1. Hacktron will ensure that all AI Providers who process Customer Data are subject to agreements that include, at minimum, the following protections: (a) AI Providers are contractually prohibited from retaining Customer Data beyond the period necessary to generate the requested output; (b) AI Providers are contractually prohibited from using Customer Data to train, fine-tune, develop, improve, or otherwise enhance any AI Technology model, algorithm, or system; and (c) AI Providers are contractually required to treat Customer Data as confidential and not to disclose it to any third party except as required by applicable law.
2.6.2. Customer acknowledges that outputs, recommendations, analyses, or content generated by AI Technology (“AI-Generated Output”) are probabilistic in nature and may be inaccurate, incomplete, or not suitable for Customer’s specific purposes. AI-Generated Output does not constitute professional, legal, financial, or regulatory advice. Customer is solely responsible for independently reviewing, validating, and verifying the results of its use of the Service, including AI-Generated Output, prior to relying upon or acting on it.
2.6.3. Nothing in this Agreement will be construed to impose on Hacktron any liability arising from Customer’s reliance on AI-Generated Output without independent verification.
3. RESTRICTIONS
3.1. General Restrictions. Customer will not, and will ensure that its Authorized Users do not, directly or indirectly: (a) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party the Service or any part thereof, except as expressly permitted in this Agreement; (b) modify, translate, adapt, or create derivative works based on the Service; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Service or any component thereof, except to the extent that such activities are expressly permitted by applicable law notwithstanding this restriction, and only after prior written notice to Hacktron; (d) access the Service in order to build a competitive or substantially similar product or service, or to copy any features, functions, or graphics of the Service; (e) use the Service to provide outsourcing, time-sharing, service bureau, or managed service provider services to third parties without Hacktron’s prior written consent; (f) use the Service to store, transmit, or process any information that infringes any third party’s Intellectual Property Rights, or any applicable law or regulation; (g) use the Service to engage in any unlawful activity; (h) introduce or transmit Malicious Code into the Service or Hacktron’s systems; (i) circumvent or attempt to circumvent any technological protection measure or access controls implemented by Hacktron; (j) remove, obscure, or alter any proprietary notices, labels, or marks on or within the Service; or (k) access the Service in a manner that exceeds the scope of the rights granted under Section 2.1 or the number of Authorized User subscription seats specified in the applicable Order.
3.2. Suspension. Hacktron reserves the right to immediately suspend Customer’s access to the Service, without liability to Customer, if: (a) Customer or any Authorized User breaches any provision of Section 3.1; (b) Hacktron reasonably determines that Customer’s use of the Service poses a security risk to the Service or any other Hacktron customer; (c) Customer fails to pay any undisputed Fees when due; or (d) as required by applicable law or regulation. Hacktron will use commercially reasonable efforts to provide advance notice of suspension where reasonably practicable, except where immediate suspension is necessary to protect the integrity or security of the Service. Suspension does not relieve Customer of its payment obligations under this Agreement.
4. FEES AND PAYMENT
4.1. Fees. Customer will pay all Fees specified in the applicable Order in accordance with this Section 4 and the Order. Unless stated otherwise in the Order, all Fees are stated and payable in United States Dollars (USD).
4.2. Invoicing and Payment. Unless otherwise specified in the applicable Order: (a) Hacktron will invoice Customer annually in advance for subscription Fees; and (b) Customer will pay all invoices within thirty (30) days of the invoice date (“Payment Due Date”).
4.3. Late Payments. Any undisputed amounts not paid by the Payment Due Date will accrue interest at the rate of one and one-half percent (1.5%) per month, or the maximum rate permitted by applicable law, whichever is lower, from the Payment Due Date until paid in full. Customer will also reimburse Hacktron for all reasonable costs of collection (including reasonable attorneys’ fees) incurred in collecting overdue amounts.
4.4. Fee Disputes. Customer must notify Hacktron in writing of any good-faith dispute regarding an invoice within fifteen (15) days of receipt of such invoice, specifying the basis for the dispute in reasonable detail. Customer will pay all undisputed amounts by the Payment Due Date. The Parties will work in good faith to resolve any billing dispute within thirty (30) days of Customer’s notice. Hacktron will not exercise its suspension or termination rights under this Agreement with respect to amounts subject to a good-faith dispute raised in accordance with this Section.
4.5. Fee Adjustments. Hacktron may adjust the Fees applicable to any Renewal Term upon at least sixty (60) days’ written notice to Customer prior to the commencement of the relevant Renewal Term.
4.6. Taxes. All Fees are exclusive of all applicable sales, use, goods and services, value-added, withholding, and other taxes and government charges (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder, other than taxes based on Hacktron’s net income. If Hacktron is required to collect Taxes, Hacktron will invoice Customer for such Taxes and Customer will pay such Taxes in addition to the applicable Fees.
5. HACKTRON IP
5.1. Hacktron Ownership. As between the Parties, Hacktron owns and retains all right, title, and interest (including all Intellectual Property Rights) in and to: (a) the Service (including the Documentation) and all underlying technology, software, algorithms, models, interfaces, and infrastructure; and (b) all modifications, improvements, enhancements, or derivative works of the foregoing. No rights in or to the Service or any Hacktron Intellectual Property Rights are granted to Customer except as expressly set forth in this Agreement.
5.2. Feedback. Customer hereby grants to Hacktron a perpetual, irrevocable, royalty-free, worldwide license to use, incorporate, and exploit any Feedback in any manner without restriction or obligation to Customer.
5.3. No Implied Licenses. Nothing in this Agreement grants Customer any implied license, right, or interest in Hacktron’s Intellectual Property Rights.
6. CUSTOMER DATA AND SECURITY
6.1. Customer Data Ownership. As between the Parties, Customer retains all right, title, and interest in and to Customer Data. Customer hereby grants Hacktron a limited, non-exclusive, worldwide license during the Subscription Term to use, host, copy, transmit, display, modify, and process Customer Data to provide the Service to Customer and, with respect to Customer Data that has been anonymized so that it is incapable of identifying Customer or any individual, to further develop and improve the Service and Hacktron’s related technology.
6.2. Customer Responsibilities. Customer is solely responsible for: (a) the accuracy, quality, integrity, and legality of Customer Data; (b) ensuring that Customer has the right to transmit Customer Data to Hacktron and to authorize Hacktron’s use thereof as contemplated by this Agreement; (c) ensuring that Customer’s collection and processing of Customer Data complies with all applicable laws and regulations; and (d) configuring and using the Service, and implementing appropriate security controls at Customer’s environment level, in a manner that adequately protects Customer Data given its sensitivity.
6.3. Hacktron Security. Hacktron will implement and maintain commercially reasonable technical and organizational security measures designed to protect Customer Data against unauthorized access, destruction, loss, or alteration. Such measures will be no less protective than those described in Hacktron’s then-current Security Documentation, available upon request.
6.4. Security Incidents. Hacktron will notify Customer without undue delay, and in any event within seventy-two (72) hours of becoming aware, of any confirmed security breach of Hacktron’s systems that results in unauthorized access to or disclosure of Customer Data (a “Security Incident”). Such notification will describe, to the extent then known, the nature of the Security Incident, the categories of Customer Data involved, and the remedial steps Hacktron is taking. Hacktron’s obligation to notify Customer under this Section does not constitute an acknowledgment of fault or liability. Customer is responsible for notifying any applicable regulatory authorities and affected individuals as required by applicable law.
6.5. Data Deletion. Upon expiration or termination of this Agreement or the applicable Order, Hacktron will, upon Customer’s written request submitted within thirty (30) days of such expiration or termination, provide Customer with the ability to export its Customer Data in a standard machine-readable format or, at Customer’s request, delete Customer Data from Hacktron’s production systems within a commercially reasonable period. Thereafter, Hacktron has no obligation to retain Customer Data. Hacktron may retain Customer Data in backup systems for up to ninety (90) days following deletion from production systems, subject to Hacktron’s standard data retention policies, and subject to the obligations of this Agreement.
6.6. Customer’s Right to Audit. Customer may, upon at least ten (10) business days’ prior written notice to Hacktron, and no more than once per calendar year, request an audit of Hacktron’s security controls solely to verify Hacktron’s compliance with its obligations under this Section 6 and, if applicable, the DPA (defined below). In lieu of such an audit, Hacktron may satisfy Customer’s audit request by: (a) providing copies of then-current third-party security audit reports (e.g., SOC 2 Type II); (b) completing Customer’s reasonable security questionnaire; or (c) such other means as the Parties may agree. Customer will conduct any permitted audit during Hacktron’s normal business hours, in a manner that minimizes disruption to Hacktron’s operations, and Customer and any auditor engaged by Customer will be bound by written confidentiality obligations at least as protective as those in Section 8 prior to accessing any Hacktron systems or information.
7. DATA PROTECTION AND PRIVACY
7.1. Compliance with Privacy Laws. Each Party will comply with all applicable data protection and privacy laws and regulations in connection with this Agreement, including, as applicable, the General Data Protection Regulation (EU) 2016/679 (“GDPR”), the California Consumer Privacy Act (“CCPA”), and any other applicable data protection and privacy laws (collectively, “Privacy Laws”).
7.2. Roles. The Parties acknowledge that, with respect to Customer Data that constitutes personal data: (a) Customer is the data controller (or “business” under CCPA) with respect to Customer Data; and (b) Hacktron is a data processor (or “service provider” under CCPA), processing Customer Data solely on behalf of and in accordance with Customer’s documented instructions, as set forth in this Agreement and any applicable Order.
7.3. Data Processing Agreement. To the extent the processing of Customer Data constitutes processing of personal data subject to applicable Privacy Laws (including the GDPR), the Parties will enter into a Data Processing Agreement in Hacktron’s standard form (“DPA”), which is incorporated herein by reference upon execution. In the event of any conflict between the DPA and this Agreement with respect to the processing of personal data, the DPA will control.
7.4. Sub-processors. Hacktron may engage third-party sub-processors to process Customer Data in connection with the Service, provided that Hacktron will: (a) maintain a list of sub-processors available to Customer upon request or via Hacktron’s website; (b) ensure that each sub-processor is bound by obligations at least as protective as those in this Agreement and any applicable DPA; and (c) remain liable for each sub-processor’s compliance with such obligations.
8. CONFIDENTIALITY
8.1. Definition. “Confidential Information” means any non-public information disclosed by one Party (the “Discloser”) to the other Party (the “Recipient”), whether orally, in writing, or in any other form, that is designated as “confidential” or “proprietary” or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Without limiting the foregoing, the Service, its technical architecture, and Hacktron’s pricing constitute Confidential Information of Hacktron.
8.2. Exclusions. Confidential Information does not include information that: (a) is or becomes generally available to the public through no breach of this Agreement by the Recipient; (b) was rightfully known to the Recipient, without restriction, prior to disclosure by the Discloser; (c) is rightfully received by the Recipient from a third party without restriction; or (d) is independently developed by the Recipient without use of or reference to the Discloser’s Confidential Information.
8.3. Obligations. The Recipient will: (a) use the Discloser’s Confidential Information solely for the purposes of performing its obligations or exercising its rights under this Agreement; (b) protect the Discloser’s Confidential Information with at least the same degree of care it uses to protect its own confidential information of like nature, but in no event less than reasonable care; and (c) disclose Confidential Information only to its employees, contractors, advisors, and Affiliates who have a need to know such information and who are bound by confidentiality obligations at least as protective as those in this Section 8.
8.4. Compelled Disclosure. The Recipient may disclose Confidential Information to the extent required by applicable law, regulation, or court or governmental order, provided that the Recipient: (a) gives the Discloser prompt prior written notice of such requirement (to the extent legally permissible); (b) cooperates with the Discloser in seeking a protective order or other appropriate relief; and (c) discloses only that portion of Confidential Information that is legally required to be disclosed.
8.5. Injunctive Relief. The Parties acknowledge that a breach of this Section 8 may cause irreparable harm for which monetary damages would be an inadequate remedy, and accordingly, the non-breaching Party will be entitled to seek equitable relief (including injunctive relief) in addition to all other remedies available at law or in equity, without the necessity of proving actual damages or posting any bond.
8.6. Duration. The obligations of this Section 8 will remain in effect during the Term and for a period of three (3) years following the expiration or termination of this Agreement, provided that obligations with respect to trade secrets will continue for so long as the information constitutes a trade secret under applicable law.
9. WARRANTIES
9.1. Mutual Warranties. Each Party represents and warrants to the other that: (a) it is duly organized, validly existing, and in good standing under the laws of its jurisdiction of organization; (b) it has full power and authority to enter into this Agreement and to perform its obligations hereunder; and (c) this Agreement constitutes a legal, valid, and binding obligation of such Party, enforceable against it in accordance with its terms.
9.2. Hacktron’s Limited Warranty. Hacktron warrants that: (a) during the Subscription Term, the Service will perform materially in accordance with the Documentation under normal use conditions; and (b) Hacktron will not knowingly introduce Malicious Code into the Service. Hacktron’s sole obligation, and Customer’s exclusive remedy, for any breach of the warranty in subsection (a) is for Hacktron to use commercially reasonable efforts to correct the non-conforming Service, or, if Hacktron determines that such correction is not commercially reasonable, to terminate the affected Order and refund to Customer a pro-rata portion of any prepaid, unused Fees for the remainder of the then-current Subscription Term.
9.3. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN SECTION 9.1 AND SECTION 9.2, THE SERVICE, THE RESULTS OF CUSTOMER’S USE OF THE SERVICE (INCLUDING AI-GENERATED OUTPUT) AND ALL OTHER SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HACKTRON EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING: (a) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; (b) ANY WARRANTY THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR THAT ACCESS TO THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, COMPLETELY SECURE, OR VIRUS-FREE; (c) ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE; AND (d) ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
10. INDEMNIFICATION
10.1. Hacktron Indemnification. Hacktron will defend, indemnify, and hold harmless Customer and its Affiliates, officers, directors, employees, and agents from and against any and all third-party claims, suits, proceedings, losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) to the extent alleging that the Service, as provided by Hacktron and used in accordance with this Agreement, infringes any patent, copyright, trademark, or trade secret of such third party (“IP Claim”). If the Service becomes, or in Hacktron’s reasonable opinion is likely to become, the subject of an IP Claim, Hacktron may, at its sole option and expense: (a) procure for Customer the right to continue using the affected portion of the Service; (b) modify the affected portion of the Service so that it is no longer infringing; or (c) terminate the affected Order and refund to Customer a pro-rata portion of any prepaid, unused Fees for the remainder of the then-current Subscription Term. This Section 10.1 sets forth Hacktron’s sole obligation and Customer’s exclusive remedy with respect to any IP Claim. Hacktron’s obligations under this Section 10.1 will not apply to any IP Claim arising from: (a) Customer’s modification of the Service without Hacktron’s authorization; (b) Customer’s use of the Service in combination with any hardware, software, service, or other products not provided or approved by Hacktron; (c) Customer Data or Customer’s use of the Service in a manner not permitted by this Agreement or the Documentation; or (d) Hacktron’s compliance with specifications or requirements provided by Customer.
10.2. Customer Indemnification. Customer will defend, indemnify, and hold harmless Hacktron and its Affiliates, officers, directors, employees, and agents from and against any and all third-party claims, suits, proceedings, losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) to the extent arising out of any Customer Data, including any claim that Customer Data infringes, misappropriates, or otherwise violates any third party’s rights (including Intellectual Property Rights or privacy rights) or any applicable law.
10.3. Indemnification Procedure. The indemnified Party will: (a) promptly notify the indemnifying Party in writing of any claim for which indemnification is sought; (b) grant the indemnifying Party sole control over the defense and settlement of such claim, provided that any settlement that imposes any obligation, restriction, or liability on the indemnified Party requires the indemnified Party’s prior written consent (not to be unreasonably withheld); and (c) provide reasonable cooperation to the indemnifying Party at the indemnifying Party’s request and expense.
11. LIMITATION OF LIABILITY
11.1. EXCLUSION OF CERTAIN DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY (OR THEIR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, OR SUPPLIERS) BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, REVENUE, BUSINESS, GOODWILL, DATA, OR ANTICIPATED SAVINGS, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES), ARISING OUT OF OR RELATED TO THIS AGREEMENT, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.2. AGGREGATE LIABILITY CAP. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY’S TOTAL CUMULATIVE LIABILITY TO THE OTHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION AND UNDER ANY THEORY OF LIABILITY, WILL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER TO HACKTRON DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE EXISTENCE OF MULTIPLE CLAIMS WILL NOT ENLARGE THE FOREGOING LIMIT.
11.3. Exceptions. The limitations in Section 11.1 and Section 11.2 will not apply to: (a) Customer’s breach of Section 3.1 (General Restrictions); (b) either Party’s breach of Section 8 (Confidentiality); or (c) either Party’s liability for damages arising from its willful misconduct, gross negligence, or fraud.
11.4. Essential Basis. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 11 REFLECT A REASONABLE ALLOCATION OF RISK AND ARE AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES, AND THAT HACKTRON WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT SUCH LIMITATIONS.
12. TERM AND TERMINATION
12.1. Term. This Agreement commences on the Effective Date and, unless earlier terminated in accordance with this Agreement, continues until the expiration or termination of all Orders (the “Term”). Each Order will commence on the start date specified therein and continue for the “Initial Term” specified therein (the “Initial Term”). Unless a Party provides the other Party with written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current Subscription Term, each Order will automatically renew for successive periods equal to the Initial Term (each, a “Renewal Term”) (or for such other renewal period as set forth in the applicable Order), unless earlier terminated in accordance with this Agreement.
12.2. Termination for Cause. Either Party may terminate this Agreement or any Order upon written notice to the other Party if: (a) the other Party materially breaches this Agreement or the applicable Order and fails to cure such breach within thirty (30) days after receipt of written notice specifying the breach in reasonable detail; or (b) the other Party: (i) becomes insolvent; (ii) makes an assignment for the benefit of creditors; (iii) has a receiver, trustee, or liquidator appointed for it or for a substantial part of its assets; (iv) files for bankruptcy or has a bankruptcy petition filed against it (which is not dismissed within sixty (60) days); or (v) ceases to operate in the ordinary course of business.
12.3. Termination for Non-Payment. Hacktron may terminate any Order or this Agreement upon written notice to Customer if Customer fails to pay any undisputed Fees by the applicable Payment Due Date and such failure is not cured within ten (10) business days after Hacktron’s written notice of non-payment.
12.4. Effect of Termination. Upon any expiration or termination of this Agreement or any Order: (a) all rights and licenses granted to Customer hereunder will immediately terminate; (b) Customer will immediately cease all use of the Service; and (iii) each Party will promptly return or destroy the other Party’s Confidential Information in its possession, subject to Section 6.5 (Data Deletion). If Hacktron terminates an Order or this Agreement for Customer’s uncured material breach, insolvency, or non-payment, all Fees for the remainder of the then-current Subscription Term of all affected Orders will become immediately due and payable. For the avoidance of doubt, Hacktron’s right to collect such Fees will not be affected by any termination of this Agreement. If Customer terminates any Order or this Agreement for Hacktron’s uncured material breach or insolvency: (i) Customer’s payment obligations for the period following the effective date of termination will cease; and (ii) Customer will be entitled to a pro-rata refund of any prepaid, unused Fees for the applicable period.
12.5. Survival. The following provisions will survive expiration or termination of this Agreement for any reason: Section 1 (Definitions), Section 3.1 (General Restrictions), Section 4 (Fees and Payment), Section 5 (Hacktron IP), Section 6 (Customer Data and Security), Section 7 (Data Protection and Privacy), Section 8 (Confidentiality), Section 9.3 (Disclaimer of Warranties), Section 10 (Indemnification), Section 11 (Limitation of Liability), Section 12.4 (Effect of Termination), Section 12.5 (Survival), and Section 13 (Miscellaneous).
13. MISCELLANEOUS
13.1. Export Compliance. Each Party will comply with all applicable export control and trade sanctions laws and regulations, including those administered by the U.S. Department of Commerce, the U.S. Department of State, and the U.S. Department of the Treasury’s Office of Foreign Assets Control. Customer will not access or use the Service in a manner that violates any such laws or regulations.
13.2. Publicity. Customer hereby grants Hacktron the right to identify Customer as a customer of the Service and to use Customer’s name and logo in Hacktron’s marketing materials, website, and customer lists. Customer may revoke this permission at any time upon written notice to Hacktron, and Hacktron will remove such references within thirty (30) days of receipt of such notice.
13.3. Assignment. Neither Party may assign, transfer, or delegate any of its rights or obligations under this Agreement, in whole or in part, without the other Party’s prior written consent. Notwithstanding the foregoing, either Party may assign or transfer this Agreement in its entirety (including all Orders) without such consent in connection with a merger, acquisition, or sale of all or substantially all of its assets or business. Any purported assignment or transfer in violation of this Section will be null and void.
13.4. Force Majeure. Except for payment obligations, neither Party will be liable to the other for any failure or delay in performance to the extent caused by circumstances beyond such Party’s reasonable control, including acts of God, natural disasters, war, terrorism, riots, government actions, pandemics, or failures of third-party internet infrastructure or utilities (each, a “Force Majeure Event”), provided that: (a) the non-performing Party gives prompt written notice to the other Party of the Force Majeure Event; and (b) the non-performing Party uses commercially reasonable efforts to overcome or work around the Force Majeure Event. If a Force Majeure Event continues for more than thirty (30) consecutive days, either Party may terminate this Agreement (including all Orders) upon written notice, and Hacktron will refund any prepaid, unused Fees covering the period after termination.
13.5. Notices. All notices required or permitted under this Agreement will be in writing and will be delivered by: (a) hand delivery; (b) nationally recognized overnight courier; or (c) email with confirmation of receipt to the addresses set forth in the applicable Order or such other address as a Party may designate in writing from time to time. Notices will be deemed given upon receipt.
13.6. Dispute Resolution; Governing Law and Jurisdiction. Before initiating any formal legal proceeding, the Parties will attempt to resolve any dispute arising under this Agreement through escalation to senior representatives of each Party for a period of thirty (30) days following written notice identifying the dispute (the “Escalation Period”). Either Party may seek injunctive or other equitable relief at any time, without being required to exhaust the Escalation Period. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without regard to any conflict of laws principles. The Parties irrevocably submit to the exclusive jurisdiction of the state and federal courts located in New Castle County, Delaware, for the resolution of any dispute arising out of or relating to this Agreement.
13.7. Relationship of the Parties; No Third-Party Beneficiaries. The Parties are independent contractors. Nothing in this Agreement will be construed to create a partnership, joint venture, employment, franchise, or agency relationship between the Parties. Neither Party will have authority to bind the other or to incur any obligation on behalf of the other. This Agreement is for the sole and exclusive benefit of the Parties and their respective successors and permitted assigns. Nothing in this Agreement is intended to, or will, create any third-party beneficiary rights.
13.8. Amendments; Waivers; Severability. This Agreement may not be modified except by a written instrument duly signed by authorized representatives of both Parties. Notwithstanding the foregoing, Hacktron may update the Support Policy, Security Documentation, and sub-processor list as provided in this Agreement, provided that no such update will materially reduce Customer’s rights or protections during a then-current Subscription Term. No failure or delay by either Party in exercising any right or remedy under this Agreement will operate as a waiver thereof. No single or partial exercise of any right or remedy will preclude any other or further exercise thereof or the exercise of any other right or remedy. If any provision of this Agreement is held to be invalid, illegal, or unenforceable, such provision will be modified to the minimum extent necessary to make it valid, legal, and enforceable, and the validity, legality, and enforceability of the remaining provisions will not in any way be affected or impaired thereby.
13.9. Construction; Counterparts; Electronic Signatures. This Agreement will be construed without regard to any presumption or rule requiring construction against the Party causing this Agreement to be drafted. Section headings are for convenience only and will not affect interpretation. When used herein, the words “include,” “includes,” and “including” will be deemed to be followed by the words “without limitation.” Orders may be executed in one or more counterparts, each of which will be deemed an original, and all of which together will constitute one and the same instrument. Execution of Orders by electronic signature (including DocuSign or similar platform) will be deemed valid and binding.
13.10. Entire Agreement. This Agreement, together with all Orders and any documents incorporated herein by reference, constitutes the entire agreement between the Parties with respect to its subject matter and supersedes all prior and contemporaneous agreements, understandings, negotiations, and discussions between the Parties, whether oral or written, relating to such subject matter. No purchase order or other document issued by Customer will add to, modify, or supersede this Agreement, even if Hacktron does not object thereto.