TERMS OF SERVICE

PLEASE READ THESE TERMS OF SERVICE (THE “AGREEMENT”) CAREFULLY BEFORE ACCESSING OR USING THE CHECKMARX SOLUTION, SOFTWARE OR SERVICE (THE “SOLUTION(S)”). THIS AGREEMENT, WHICH INCLUDES A BINDING ARBITRATION CLAUSE THAT IMPACTS YOUR DISPUTE RESOLUTION RIGHTS, REPRESENTS A BINDING LEGAL AGREEMENT BETWEEN YOU AS THE INDIVIDUAL, THE COMPANY, OR THE LEGAL ENTITY THAT WILL BE UTILIZING THE SOLUTION (“YOU”) AND THE CHECKMARX ENTITY IDENTIFIED BELOW (“CHECKMARX”).

IF YOU ARE ACCESSING OR USING THE SOLUTION, OR ANY PART THEREOF, ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU HEREBY ACCEPT THIS AGREEMENT ON BEHALF OF SUCH COMPANY OR ENTITY; YOU ACKNOWLEDGE THAT SUCH COMPANY OR ENTITY IS LEGALLY BOUND BY THIS AGREEMENT; AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ACT ON BEHALF OF AND BIND SUCH COMPANY OR ENTITY. YOU MAY NOT ACCEPT THIS AGREEMENT ON BEHALF OF A COMPANY OR ENTITY UNLESS YOU ARE AN EMPLOYEE OR OTHER AUTHORIZED AGENT OF SUCH COMPANY OR ENTITY WITH THE RIGHT, POWER AND AUTHORITY TO BIND AND ACT ON BEHALF OF SUCH COMPANY OR ENTITY.

IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU ARE NOT AUTHORIZED TO ACCESS OR USE THE SOLUTION OR ANY PART THEREOF. BY CLICKING “I ACCEPT,” “I AGREE,” OR SIMILAR ACCEPTANCE TEXT, BY EXECUTING A DOCUMENT INCORPORATING THIS AGREEMENT BY REFERENCE, OR BY ACCESSING OR USING THE SOLUTIONS, YOU HEREBY AGREE TO THIS AGREEMENT.

Our Privacy Policy, which describes how Checkmarx processes personal data of individuals with whom it interacts with directly, is incorporated by reference: https://checkmarx.com/legal/privacy-policy. If you use the Solution in your individual capacity and not on behalf of any entity, Checkmarx acts as the controller of personal data processed in connection with providing the Solution, and such processing is governed by the Privacy Policy. When the Solution is accessed or used on behalf of a company or other legal entity (including when you are acting solely as an authorized user or representative of such entity), the entity is the controller of personal data processed in connection with the Solution and Checkmarx acts as a processor on the entity’s behalf. In that case, the data processing agreement available at https://checkmarx.com/legal/terms/ is incorporated by reference and applies to such processing.

You are not permitted to access or use the Solutions if you are (or are working for or acting on behalf of) a direct competitor of Checkmarx, and you may not access or use the Solutions for the purpose of competitive analysis, competitive benchmarking or to build a competitive product or service.

SAAS SERVICES AND SUPPORT; LICENSE GRANT

Subject to this Agreement and your payment of the applicable Subscription fees, Checkmarx will undertake commercially reasonable efforts during the Subscription term to make the Solution available to you and to provide technical support for the Solution via support forum or other commercially reasonable online means in accordance with the Checkmarx’s standard practice as in effect from time to time. Checkmarx may modify, enhance, update, or discontinue the Solutions or any features or functionalities thereof from time to time in its discretion.

Subject to this Agreement and your payment of the applicable Subscription fees, Checkmarx grants you a limited, non-exclusive, non-transferable, non-sublicensable license to access and use the Solution during the Subscription term for your internal business purposes, subject to the quantity and type of licenses purchased. If you have been provided access to the Solution or any features thereof by Checkmarx for trial use or evaluation purposes, or as a beta or prerelease offering (“Evaluation Access”), Checkmarx hereby grants you a non-exclusive, non-transferable, non-sublicensable license to access and use the evaluation, beta or prerelease Solution or features for your internal evaluation purposes only, during the evaluation period designated by Checkmarx (the “Evaluation Period”).

USAGE RESTRICTIONS

You agree to comply with all relevant laws and regulations applicable to your use of the Solutions. You are solely responsible for determining whether the use of the Solutions by you and your end users is appropriate and permitted by relevant laws in the jurisdiction(s) where such services originate or will be accessed and used.

By using the Solution, you hereby represent, warrant, acknowledge and covenant that, with respect to you, your organization, and your end users:

In addition to any other restrictions set out in this Agreement, you may not, and may not permit others to: (a) use the Solution in excess of the license type restrictions or quantities purchased; (b) attempt to access the Solution by unauthorized means or circumvent any license type limitations or usage restrictions; (c) reverse engineer, decompile, disassemble, modify or create derivative works of the Solution; (d) attempt to derive the source code of the Solution; (e) reproduce, publish, distribute, transfer, publicly display, resell, rent, lease, sublicense, loan, share or lend the Solution or any outputs of the Solution to any third party other than to your affiliates, auditors, regulators in the ordinary course of your internal business operations; (f) use the Solution to provide application security services to a third party, or make the Solution available for use by a third party; (g) use the Solution for the purpose of competitive analysis, competitive benchmarking or to build a competitive product or service; (h) transfer, assign or permit the sharing of passwords, license keys, access credentials, API keys or access codes to a third party; (i) make available to any third party any content from, or output of, the Solution, including but not limited to benchmarking results; (j) use any robot, spider, data scraping or content extraction tool or similar mechanism with respect to the Solution; (k) upload malicious code, files, scripts, agents or programs to the Solution; (l) use the Solution in violation of third party rights or applicable laws and regulations; or (m) infiltrate, hack, or attempt to circumvent or interfere with any authentication or security measures of the Solution.

CONFIDENTIALITY

The term “Confidential Information” means any non-public or proprietary information disclosed by one party (“Discloser”) to the other (“Recipient”) that is designated as confidential or that a reasonable person would understand to be confidential. All Confidential Information received pursuant to this Agreement: (a) shall not be used by the Recipient except in connection with the execution of their rights, obligations and undertakings related to this Agreement (the “Purpose”); (b) may only be disclosed to those employees, contractors, consultants and service providers of the Recipient or its affiliates who have a need to know in connection with the Purpose and are subject to confidentiality obligations at least as restrictive as this Agreement; and (c) shall be held in confidence, with the Recipient exercising the same degree of care and protection that it takes to safeguard its own Confidential Information but no less than reasonable care. The confidentiality obligations under this Agreement shall not apply to any information which a party can demonstrate through written records: (a) is already in the public domain through no breach of this Agreement; (b) was lawfully in a Recipient’s possession prior to receipt from the Discloser; (c) is received by the Recipient independently from a third party free to lawfully disclose such information to Recipient; or (d) is independently developed by the Recipient without use of the Discloser’s Confidential Information. Confidential Information may be disclosed pursuant to a legal requirement under a valid governmental, judicial or administrative order, provided, however, that the Recipient shall, where permitted, provide prompt prior written notice thereof to the Discloser to enable the Discloser to seek a protective order or otherwise prevent such disclosure, and in any event the disclosure shall be limited to the extent expressly required.

PROPRIETARY RIGHTS

You acknowledge that Checkmarx, its affiliates and licensors own the copyright and other intellectual property rights in the Solutions. You will not remove the copyright, trademark and other proprietary notices contained on or in the Solutions and any materials provided by Checkmarx under this Agreement. All rights not expressly granted in this Agreement are reserved by Checkmarx, its affiliates and licensors.

You hereby grant Checkmarx and its affiliates a limited, non-exclusive license to utilize the data provided by you and your end users during use of the Solutions (the “Customer Data”) to the extent necessary to provide the Solutions, to provide technical support and assistance, to monitor, secure and improve the Solutions, and to exercise the rights and obligations under this Agreement. Checkmarx does not claim any ownership over your Customer Data, or any other right, title or interest outside of the license grants and permissions set out in this Agreement.

Notwithstanding anything to the contrary, Checkmarx shall have the right to collect and analyze data and other information relating to the provision, use and performance of the Solutions (including, without limitation, information relating to the Customer Data and data, analytics or insights derived therefrom), and Checkmarx will be free (during and after the Subscription term): (i) to use such information and data to improve and enhance the Solutions, and for other research, development, diagnostic and support, and (ii) to generate and publish statistical and benchmarking insights as long as the data has been aggregated, anonymized, de-identified, or otherwise rendered not reasonably associated with or linked to an identifiable individual or to you.

In the event you provide Checkmarx with feedback, suggestions, or ideas related to its products, services, or business (“Feedback”), you hereby grant Checkmarx and its affiliates a perpetual, irrevocable, worldwide, sub-licensable, royalty-free license to use, modify, create derivative works, distribute, and otherwise exploit the Feedback without further compensation to you.

FEES AND PAYMENT

In order to use the Solutions beyond any applicable Evaluation Period, you are required to purchase a monthly or annual subscription (a “Subscription”) by paying the Subscription fees of the applicable Solution package selected during purchase. You will be solely liable for paying the Subscription fees, as well as any applicable taxes, commissions and/or rates incurred by payment of the Subscription fees. All Subscription fees are non-refundable. The Subscription fees will be charged by us and paid by you, in advance, at the price of the selected package.

Checkmarx reserves the right to change the Subscription fees at any time and from time to time, by posting prior notice on our website and/or by sending you an email to that effect. Any change in the Subscription fees will not apply to the subscription package then in effect at the time of the change.

The Subscription term of the selected package will commence on the activation date and will continue for a period of twelve (12) months thereafter (unless a different Subscription term is selected at the time of purchase), unless the Subscription is terminated under these Terms of Service.

Subject to applicable law, in the event of non-payment or chargeback that is not corrected within fourteen (14) days of the due date for payment, your Subscription will be deemed delinquent and Checkmarx may terminate or suspend your account or access to the Service for non-payment. You are liable for any fees, including attorney and collection fees, incurred by us in our efforts to collect any remaining balances from you. The above shall not derogate from other rights and/or remedies afforded to us under this Agreement and and/or any applicable law.

TERM AND TERMINATION

The term of this Agreement will begin upon your first acceptance and will continue until all active Subscriptions have expired, unless this Agreement is earlier terminated in accordance with this Agreement or extended by written agreement of the Parties. Upon expiration or termination of this Agreement or the Subscription, your access to the Solutions will end.

You may terminate a Subscription at any time and for any reason by sending us a termination notice or by using the ‘unsubscribe’ button if such functionality is made available in the Solution or in your account management dashboard. Notwithstanding such termination, you shall not be entitled to a refund of any pre-paid and unused Subscription fees.

Either Party may terminate this Agreement: (a) with written notice if the other Party materially breaches this Agreement and fails to cure the breach within thirty (30) days of receiving written notice; (b) if the other Party becomes subject to bankruptcy, insolvency, or similar proceedings that are not dismissed within sixty (60) days; or (c) immediately, with written notice, if performance under this Agreement would result in a material and incurable violation of applicable law. This Agreement will also terminate automatically in the event of a breach of any law or regulation by you in connection with your purchase or use of the Solutions.

All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, rights to payment, confidentiality obligations, Checkmarx’s intellectual property rights, warranty disclaimers, and limitations of liability.

THIRD-PARTY INTEGRATIONS 

Checkmarx may make available optional add-ons or integrations intended to enable the Solution to access, integrate with, or be interoperable with other third-party platforms, products or services (a “Third-Party Integration”). All usage of the Third-Party Integrations by you is at your own risk, and Checkmarx does not guarantee the continued availability of the Third-Party Integration, which Checkmarx may discontinue at its discretion. Any use by you of the Third-Party Integrations, and any exchange of data between you and any third-party provider, is solely between you and the applicable third-party provider. Checkmarx does not warrant or support Third Party Integrations, and Checkmarx is not responsible for any disclosure, modification or deletion of your data by the Third-Party Integrations or third-party providers.

OPTIONAL FEATURES

From time to time, Checkmarx may make available additional optional features or services (“Optional Features”) subject to separate terms and conditions that must be accepted as a precondition to their use. By electing to activate or use any Optional Features, you agree to the terms and conditions presented at the time of activation or use, which shall be incorporated by reference into this Agreement and shall become binding upon your acceptance.

PUBLICITY

Checkmarx may mention you or your organization as a current customer on Checkmarx’s website(s) and in customer lists. If approved in advance by you or your organization in writing, Checkmarx shall be permitted to: (a) issue a press release indicating that your organization has purchased Checkmarx Solutions; (b) to publish a case study based on your or your organization’s use of the Checkmarx Solutions; and/or (c) use you or your organization as a reference customer.

INDEMNIFICATION

You will indemnify and hold Checkmarx and its directors, officers, employees, partners, licensors and/or agents, harmless from and against all damages, losses, and expenses of any kind (including reasonable legal fees and costs), related to any demand and/or claim brought against Checkmarx and/or its licensors by any Users and/or any other third party, due to or arising out of your use of the Solution in violation of these Terms of Service, including but not limited to any violation of law, regulation, or this Agreement by you or your users.

Checkmarx will, subject to the exclusions set out below, defend at its own expense any action brought against you by a third party to the extent that the action is based on a claim that the Solution infringes any validly registered intellectual property right, and Checkmarx shall pay those costs and damages finally awarded against you in any such action that are specifically attributable to such claim or those costs and damages which have been agreed by Checkmarx in a monetary settlement of such action. Checkmarx’s indemnification obligations are expressly conditioned upon you giving Checkmarx prompt written notice of any actual or threatened claim, allowing Checkmarx sole control of the defense and all related settlement negotiations, providing full cooperation for the defense of same to Checkmarx, and not settling or negotiating a settlement of any such claim without Checkmarx’s prior written approval. THIS PARAGRAPH STATES YOUR SOLE AND EXCLUSIVE REMEDY AND THE ENTIRE LIABILITY OF CHECKMARX WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.

In the event the Solution is determined to, or is believed by Checkmarx to, become the subject of an infringement claim, Checkmarx may, at its sole discretion: (a) modify the Solution so that it is non-infringing; (b) obtain a license for you to continue to use the Solution as provided hereunder; or, if the foregoing options are not commercially feasible, terminate your license for the allegedly infringing Solution and assist in coordinating a refund of the prorated amount of Subscription fees paid by you for such Solution, depreciated over the remaining duration of the Subscription. Checkmarx shall have no obligation or liability for any claim of infringement based on the: (a) use of the Solutions in combination with other items (e.g., hardware, software, operating environments or data) not provided by Checkmarx where infringement would not have resulted but for such combination; (b) modification of the Solution by anyone other than Checkmarx where infringement would not have resulted but for such modification; or (c) use of the Solution after a non-infringing Solution has been made available to you by Checkmarx.

LIMITED WARRANTY; DISCLAIMER

For paid use of the Solution, Checkmarx will undertake commercially reasonable efforts to provide the Solution in accordance with the applicable Solution documentation. If you determine that the above-referenced warranty has been breached, you agree to provide Checkmarx with prompt written notice documenting each non-conformity. Within a reasonable time after receipt such notice, Checkmarx shall, at Checkmarx’s sole discretion and as your sole and exclusive remedy: (a) deliver a workaround or correction of the non-conformity within a commercially reasonable time; or (b) if the foregoing is not feasible, re-perform the service; or (c) if Checkmarx is unable to remedy the non-conformity as set out above, Checkmarx may terminate the relevant Subscription and provide a prorated refund of any pre-paid, unused Subscription fees you have paid for use of the Solution.

EXCEPT FOR THE LIMITED WARRANTY SET OUT IN THE PREVIOUS PARAGRAPH, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL SOLUTIONS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND CHECKMARX DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. CHECKMARX EXPRESSLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. CHECKMARX DOES NOT REPRESENT OR WARRANT THAT THE SOLUTIONS WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SOLUTION WILL BE UNINTERRUPTED AND/OR ERROR FREE, OR THAT THE SOLUTIONS WILL DETECT OR RENDER YOUR CODE FREE FROM ALL ERRORS, VULNERABILITIES, OR INTRUSIONS.

LIMITATION OF LIABILITY

EXCEPT FOR LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED AS A MATTER OF LAW, CHECKMARX AND ITS AFFILIATES SHALL NOT BE LIABLE FOR ANY LOST PROFITS, LOST REVENUE, LOSS OF USE, LOSS OR DAMAGE TO DATA, REMEDIATION COSTS, LOSS OF GOODWILL, OR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, REGARDLESS OF LEGAL THEORY, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. EXCEPT FOR LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED AS A MATTER OF LAW, THE MAXIMUM AGGREGATE LIABILITY OF CHECKMARX AND ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY USE OF THE SOLUTIONS SHALL NOT EXCEED THE FEES PAID TO CHECKMARX UNDER THIS AGREEMENT DURING THE PREVIOUS TWELVE (12) MONTHS PRECEDING THE FIRST EVENT GIVING RISE TO A CLAIM.

COMPLIANCE

To the extent consistent with applicable local law, you agree to comply with applicable anti-corruption, export control, and financial sanctions laws in connection with the Solution, Services, and Documentation (collectively, “the Products”), including, but not limited to, the United States Export Administration Regulations, 15 CFR 730 et seq (“EAR”) and the United States Foreign Assets Control Regulations, 31 CFR 500 et seq (“OFAC Regulations”) (collectively “Trade Controls”). You represent and warrant that you are not, and that, absent an appropriate license obtained from the appropriate government authority, you will not export, re-export or transfer in-country to, or permit access to the Products by: (1) any party that is a citizen of, ordinarily resident in, organized under the laws of, or owned or controlled by the government of, any country or region to which the EAR prohibits exports of EAR99 items without a license (see 15 C.F.R. 746) or with which Checkmarx or its financial institutions prohibit dealings as a matter of policy based on a variety of legal and commercial risks (collectively currently Cuba, Iran, Lebanon, Libya, North Korea, Syria, the Crimea Region, and the self-proclaimed the Donetsk People’s Republic and Luhansk People’s Republic); or (2) any party or end use subject to license requirements imposed by Trade Controls, including but not limited to parties enumerated on, or directly or indirectly owned 50 percent or more by parties enumerated on, the Specially Designated Nationals and Blocked Persons list administered by the United States Department of Treasury, any party enumerated on the Entity List or subject to a Denial Order maintained by the United States Department of Commerce, any party or end use otherwise described Parts 744 or 746 of the EAR (15 CFR 744-746), and any party acting on behalf of any such party.

The Solutions and documentation constitute “commercial computer software,” and “commercial computer software documentation” and “technical data” as defined in FAR Sections 12.211 and 12.212 (and, if applicable, DFAR §227.7202). Consistent with the applicable provisions of the applicable federal acquisition regulations, including but not limited to 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Solutions and documentation are being licensed to U.S. Government customers only as commercial items and pursuant solely to the terms and conditions herein.

CONTRACTING ENTITY

For customers in the United States of America or Canada, the Checkmarx contracting entity is defined as Checkmarx, Inc. For customers located in the United Kingdom, “Checkmarx” is defined as Checkmarx UK Ltd. For customers located in India, “Checkmarx” is defined as Checkmarx India Technology Services Private Limited. For customers located in Australia, “Checkmarx” is defined as Checkmarx Australia Pty Ltd. For customers located in France, “Checkmarx” is defined as Checkmarx France S.A.S. For customers located in Germany, “Checkmarx” is defined as Checkmarx Germany GmbH. For all other customers, “Checkmarx” is defined as Checkmarx Ltd. unless a different Checkmarx entity is specified in the applicable order document.

GOVERNING LAW AND DISPUTE RESOLUTION

This Agreement shall be governed by and interpreted in accordance with the laws of the State of New York, United States of America. In the event of any controversy or claim arising out of or relating to this Agreement, the Parties shall consult and negotiate with each other and attempt to reach a solution satisfactory to both Parties. If the Parties do not reach a settlement within sixty (60) days, any unresolved controversy or claim arising out of or relating to this Agreement shall be resolved by binding arbitration conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and administered by the AAA. The arbitration shall be conducted in the English language in New York, New York, unless otherwise agreed by the Parties in writing. Notwithstanding any other provision of this Agreement, and regardless of the dispute resolution provisions and arbitration requirements set out herein, Checkmarx may, without waiving any remedy under this Agreement, seek relief from any court of competent jurisdiction to: (a) protect its confidential information or intellectual property rights; or (b) collect the payment of fees due hereunder.

MISCELLANEOUS TERMS

This Agreement may not be assigned, delegated, or transferred by you without Checkmarx’s written consent, and any attempt to take such action shall be void and without effect. Checkmarx may assign this Agreement, or any rights or obligations found therein, including but not limited to its affiliates, or to an entity which purchases all or substantially all of its assets, or acquires control of Checkmarx by reason of a merger or acquisition, sale of stock, or otherwise.

The failure of either party to enforce any provision of this Agreement shall not be interpreted to be a waiver of such provisions or of the right of such party to enforce each and every such provision.

All notices or demands hereunder shall be by traceable express courier service or certified or registered mail, return receipt requested, sent to the address of the receiving party, and shall be deemed complete ten (10) days after mailing. Notices to Checkmarx shall be sent to the attention of: General Counsel, with a copy to [email protected]. 

Except for a party’s payment obligations, neither party shall be held responsible for any delay or failure in performance under this Agreement to the extent such delay or failure is caused by fire, flood, strike, civil, governmental or military authority, act of God, labor conditions, earthquakes, or any other cause beyond its control and without the fault or negligence of the delayed or nonperforming party. The party affected by such force majeure event shall take all reasonable actions to minimize the consequences of the event.

If any provision of this Agreement shall be held by law or determined by a tribunal of competent jurisdiction to be unenforceable, the unenforceable provision shall be severed, and the remaining provisions of this Agreement shall remain in full force and effect. In such an event, you and Checkmarx agree to negotiate in good faith a substitute provision that most nearly reflects the intent of the severed provision.

This Agreement, including any linked online terms incorporated herein by reference, constitutes the entire agreement between you and Checkmarx regarding the Solution. This Agreement shall prevail over, and Checkmarx specifically objects to, any additional or conflicting provisions in any purchase order, acceptance notice, or other document issued by you or your organization, which shall be void and of no effect. This Agreement may only be modified or supplemented by a written document executed by an authorized representative of each party.

This Agreement is entered into solely for the benefit of Checkmarx and you. No third party shall be deemed to be a beneficiary of this Agreement, and no third party shall have the right to make any claim or assert any right under this Agreement.

The parties hereto are independent contractors. Nothing shall create a principal/agent, partner, or other relationship between the parties for any purpose or in any sense whatsoever or create any form of joint enterprise whatsoever between the parties.

Checkmarx may subcontract any portion of the services to a third-party contractor provided that Checkmarx remains responsible for compliance of any such subcontractor with this Agreement and for its overall performance under this Agreement.