Service agreement for Teleseer users and customers.
Last updated: January 9, 2026
These Terms of Service (these “Terms”) form a binding legal agreement between Cyberspatial Inc., a Delaware corporation (“we”, “us”, or “our”) and you (on behalf of yourself if you are an individual user or on behalf of your employer or other entity, who is responsible and liable for your acts or omissions, if you are using our services on behalf of the employer or other entity) regarding the use of our websites, platforms, and related services and offerings (collectively, the “Services”).
By registering an account or otherwise accessing or using the Services, you agree to be bound by these Terms. We may update these Terms from time to time in our discretion.
We will always keep the current version of these Terms posted on our website, and if you have a Services account, we will notify you of new versions of these Terms using the contact email in your account and/or by posting a notice in the Service.
By using the Services after a new version of these Terms have been posted, you agree to the terms and conditions of such version of these Terms.
If you do not agree to these Terms, you must immediately cease your use of the Services. You consent to the use of electronic signatures in connection with the Services, including your acceptance of these Terms and our other policies.
Your electronic signature (which may include checking a box, clicking a button to indicate your assent, spelling out your name, creating an account, or taking similar actions intended to indicate acceptance) will be as valid and binding as a handwritten signature.
You will be required to provide certain information to register an account on the Services, such as a name, email address, username, and any other login credentials or information you provide in your account profile (“Account Data“).
You are responsible for ensuring you provide complete and accurate Account Data and keep it up to date, and you are responsible for any liability or damages arising from false, fraudulent, or incomplete Account Data.
You are responsible for maintaining the security of your account and your Account Data, and you will be responsible for any actions taken using your account login credentials.
You are responsible for keeping your own records and making appropriate backups – we will not be responsible for any loss of data in our possession or control.
“Service Content“ means all information, data, text, software, music, sound, photographs, graphics, video, messages, or other material or content that are displayed, used, or otherwise incorporated into the Services.
The Services and Service Content are owned by us or our third-party licensors and are protected by applicable copyright, trademark, and/or other intellectual property laws.
Subject to your continued compliance with these Terms, we hereby grant you a limited, non-exclusive, revocable, non-transferable and non-sublicensable license to access and use the Services and Service Content for your use (and not for resale or otherwise including in any product or offering to a third party) .
If you provide feedback, suggestions, improvements, or requests for additional functionality relating to the Services (collectively, “Feedback”), you grant us an unrestricted, perpetual, irrevocable, royalty-free, worldwide license to use, reproduce, display, perform, modify, transmit, distribute, and create derivative works of such Feedback in any way we deem reasonable, without any attribution or accounting to you. This paragraph will survive any termination or expiration of these Terms or of your account on the Services.
“Personal Data” means information that can be used, alone or with other data, to identify an individual or household, and for example may include a person’s name, username, and email address. The Account Data and Submitted Data that you provide to us via the Services may include Personal Data.
“Usage Data” means information that we collect about how users use and interact with our Services. Usage Data may include Personal Data and may be aggregated and/or anonymized. It may include technical details regarding the device you use to access the Services, operating system, browser, referral URLs, page views, clicks, etc.
We own the Usage Data. Our systems automatically collect Usage Data when you interact with the Services, and we may use the Usage Data for any purpose we deem appropriate, including without limitation to improve, maintain, and operate the Services.
“Submitted Data” means data you submit to the Services for purposes of generating analysis, enrichment, visualization, other requested output, including, for example, network traffic information, logs, files, and packets.
You own your Submitted Data, and you grant us a non-exclusive, worldwide license to copy, use, display, store, and process the Submitted Data to perform Services that you request through your Services account.
We do not pre-screen or vet Submitted Data, and it may or may not contain Personal Data. We strongly recommend that you either exclude Personal Data from the Submitted Data or encrypt any Personal Data that is included in the Submitted Data.
The Services automatically process and analyze Submitted Data to generate the requested output, and we may store the raw Submitted Data for you for a limited time after such output has been generated.
YOU ARE SOLELY RESPONSIBLE FOR ANY SUBMITTED DATA YOU PROVIDE, INCLUDING WITHOUT LIMITATION FOR ITS ACCURACY, COMPLETENESS, AND RELIABILITY.
YOU REPRESENT, WARRANT, AND COVENANT THAT YOU HAVE ALL NECESSARY AUTHORITY, RIGHTS, AND CONSENTS TO PROVIDE ANY SUBMITTED DATA TO US.
WITHOUT LIMITING THE REMAINDER OF THESE TERMS, YOU WILL FULLY INDEMNIFY, DEFEND, AND HOLD US HARMLESS FROM OR AGAINST ANY LOSSES, LIABILITIES, CLAIMS, OR DAMAGES ARISING IN CONNECTION WITH ANY SUBMITTED DATA YOU PROVIDE US.
You must at all times comply with any applicable laws, rules, and regulations. You may use the Services only for purposes of good-faith analysis, forensics, investigation, assessment, and evaluation of networks in order to advance the security or safety of devices, machines, or networks of those who use such devices, machines, or networks.
You represent, warrant, and covenant that you will not:
If you identify any security issue or other vulnerability in the Services, you must promptly disclose that to us at hello@cyberspatial.com
Your notice must include all information and analysis necessary for us to identify and reproduce the issue.
The Services may contain links to websites owned or operated by third parties. We do not control or endorse such websites and we are not responsible for their content, nor are we responsible for the accuracy or reliability of any information, data, opinions, advice, or statements contained within such websites.
We have the right, but not the obligation, to review any content provided by third parties (including other users of the Services). We do not endorse such third-party content, and any views expressed therein are the views of the applicable author and do not necessarily align with our views.
We are not responsible for the accuracy or reliability of any content provided by third parties and will not be liable for any causes of action (including slander, libel, or invasion of privacy) relating to such third-party content.
The Service Content may include content or data provided by third-party licensors. Such third-party content or data may be subject to separate terms and conditions of the third party. If so, your use of that third-party content or data is subject to your compliance with those third-party terms.
THE SERVICES ARE INTENDED TO PROVIDE INFORMATION AND INSIGHTS REGARDING NETWORK TRAFFIC AND ACTIVITY, BUT WE CANNOT GUARANTEE THAT THE DATA COLLECTED OR DISPLAYED WILL BE COMPLETE OR ACCURATE OR THAT THE SERVICES WILL ALWAYS BE AVAILABLE. YOU EXPRESSLY AGREE NOT TO RELY ON THE SERVICES IN ANY SITUATION WHERE FAILURE OF THE SERVICES COULD RESULT IN DAMAGE TO OR LOSS OF PROPERTY, OR INJURY OR DEATH. WE CANNOT GUARANTEE ANY SPECIFIC RESULTS FROM USE OF THE SERVICES OR SERVICE CONTENT.
YOUR USE OF THE SERVICES AND SERVICE CONTENT IS AT YOUR SOLE RISK AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE AND OUR LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND RELATED TO THE SERVICES AND SERVICE CONTENT, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR THE SERVICE CONTENT WILL BE COMPLETE OR ACCURATE. WE ARE NOT RESPONSIBLE FOR ANY PROBLEMS OR TECHNICAL MALFUNCTION OF ANY ELECTRONIC NETWORK OR LINES, SERVERS, SOFTWARE, OR FAILURE OF TRANSMISSION AS A RESULT OF TECHNICAL PROBLEMS OR TRAFFIC CONGESTION ON THE INTERNET OR ON ANY OF THE SERVICES, INCLUDING ANY INJURY OR DAMAGE TO ANY PERSON’S COMPUTER RESULTING FROM PARTICIPATION OR DOWNLOADING MATERIALS IN CONNECTION WITH THE SERVICES.
UNDER NO CIRCUMSTANCES SHALL WE BE RESPONSIBLE FOR ANY LOSS OR DAMAGE, INCLUDING PERSONAL INJURY OR DEATH, RESULTING FROM USE OF THE SERVICES, SERVICE CONTENT, OR FROM THE CONDUCT OF ANY USERS OF THE SERVICES OR OTHER THIRD PARTIES. WITHOUT LIMITING THE FOREGOING, WE ARE NOT RESPONSIBLE FOR ERRORS OR UNAVAILABILITY CAUSED BY LOSS OF POWER OR CONNECTIVITY, OR FAILURE OF INTERNET TRANSMISSIONS. YOU ARE SOLELY RESPONSIBLE FOR ANY ISSUES ARISING OUT OF ANY SUBMITTED DATA YOU CHOOSE TO PROVIDE AND FOR ENSURING YOU ONLY PROVIDE SUBMITTED DATA THAT YOU HAVE THE RIGHT TO PROVIDE AND THAT HAS BEEN ADEQUATELY ENCRYPTED TO THE EXTENT APPROPRIATE.
SOME STATES DO NOT ALLOW CERTAIN DISCLAIMERS OR LIMITATIONS ON WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. THESE LIMITATIONS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, NEITHER WE NOR OUR LICENSORS WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR DATA (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM THE USE OF OR THE INABILITY TO USE THE SERVICES, UNDER ANY LEGAL THEORY WHATSOEVER (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE).
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, NEITHER WE NOR OUR LICENSORS WILL BE LIABLE TO YOU FOR AN AGGREGATE AMOUNT EXCEEDING THE GREATER OF $100 USD OR THE AMOUNTS PAID BY YOU TO US IN THE PAST SIX MONTHS. SOME STATES DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY FOR DAMAGES, SO THE ABOVE MAY NOT APPLY TO YOU. YOUR SOLE AND EXCLUSIVE REMEDY IF YOU ARE DISSATISFIED WITH THE SERVICES IS TO DISCONTINUE YOUR USE THEREOF.
You hereby agree to release, defend, indemnify, and hold us, our past, present, and future affiliates, licensors, licensees, marketing partners, and suppliers, together with their respective officers, directors, employees, and agents, harmless from and against any damages, losses, claims, actions or demands, liabilities and settlements including without limitation, reasonable legal and accounting fees, resulting from your use of the Services, your violation of these Terms, your provision of Submitted Data, and your use of any network maps or other output of the Services.
We may opt to defend such claims at our sole discretion, in which case you will indemnify us for the costs of such defense.
CALIFORNIA RESIDENTS HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, AND THAT IF KNOWN BY HIM OR HER WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
We reserve the right to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice.
We may terminate or suspend your account at any time, if:
You may stop using the Services at any time and may delete your Submitted Data any time from within your Services account.
To delete your Account Data please contact us as set forth at the end of these Terms. Please note that deleted data may continue to reside in our regularly scheduled backups until such backups are deleted in the normal course of business.
Termination will not relieve either party from any obligations incurred or arising prior to such termination, and those sections of these Terms which are by their nature intended to survive termination (including, without limitation, the disclaimers, limitation of liability, indemnity, and general clauses) shall survive.
These Terms, and all matters arising from or relating to them, are governed by and will be construed in accordance with the laws of Delaware, without regard to the conflicts of laws provisions thereof.
THE PARTIES AGREE THAT ANY DISPUTES ARISING IN CONNECTION WITH THE SERVICES OR THESE TERMS WILL BE EXCLUSIVELY RESOLVED THROUGH BINDING ARBITRATION IN DELAWARE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION USING ITS COMMERCIAL ARBITRATION RULES.
JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATOR(S) MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. NOTWITHSTANDING THE FOREGOING OBLIGATION TO ARBITRATE DISPUTES, EACH PARTY SHALL HAVE THE RIGHT TO PURSUE INJUNCTIVE OR OTHER EQUITABLE RELIEF AT ANY TIME, FROM ANY COURT OF COMPETENT JURISDICTION.
THE PREVAILING PARTY IN ANY DISPUTE ARISING OUT OF THESE TERMS WILL BE ENTITLED TO REASONABLE ATTORNEY’S FEES AND COSTS INCURRED BY THAT PARTY.
THE PARTIES EXPRESSLY WAIVE THE RIGHT TO TRIAL BY JURY AND ANY RIGHT TO PARTICIPATE IN CLASS-ACTION PROCEEDINGS.
We will not be responsible or liable for any delays or failures to perform due to causes beyond our reasonable control, which may include third-party actions or omissions, natural disasters, terrorist attacks, criminal activity, failure of internet or communications networks, health emergencies including pandemics or similar serious outbreaks of disease, or other force majeure events.
You may not assign or delegate these Terms or any of your rights or obligations without our prior written consent. Any purported assignment in violation of these Terms is null and void. If any provision of these Terms is determined to be void or unenforceable in whole or in part, the remaining provisions of these Terms shall not be affected thereby and shall remain in force and effect, provided that each party’s essential rights and obligations remain legal, valid, and enforceable.
These Terms and any policies referenced herein constitute the entire agreement between the parties regarding the subject matter thereof and supersede any prior or contemporaneous agreements with regards to such subject matter.
A party’s failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision.
You must provide notice to us by emailing us at hello@cyberspatial.comwith the subject line “LEGAL NOTICE”.
We may provide notice to you by email or regular mail at the address listed in your account profile, or through messages displayed or sent via our website or the Services.
If Customer is an agency, department, or other entity of the United States government (“U.S. Government”), the use, duplication, reproduction, release, modification, disclosure or transfer of the Software, manuals, or any technical specifications, or any related documentation of any kind, including technical data (for the purposes of this Section, “Software and documentation”), is restricted in accordance with Federal Acquisition Regulation (FAR) 12.212 for civilian agencies and Defense Federal Acquisition Regulation Supplement (DFARS) 227.7202 for military agencies.
The Software and documentation is commercial computer software and commercial computer software documentation. The use of the Software and documentation is further restricted in accordance with the terms of the Agreement, or any modification thereto.
For more information or for help in answering any questions, please contact us at hello@cyberspatial.com
These Cyberspatial Standard Terms and Conditions (“Standard Terms”) apply to the Contract incorporating them by reference. Capitalized terms used in these Standard Terms have the meanings given to them in Definitions clause below, the applicable Contract, or other attachments.
1. SOFTWARE, HARDWARE, AND SERVICES
1.1 Software. If Customer orders Software, then the terms of the Attachment B – Software License Agreement incorporated by reference shall apply. Software licensed for installation on Customer’s premises (including on Customer’s third-party service provider’s cloud service) will be deemed delivered to Customer when made available by electronic download. Customer is solely responsible for installing any Software as permitted. Where delivery is electronic, Cyberspatial will not provide any physical media or hard copy Documentation to Customer. Software is deemed accepted upon delivery.
1.2 Hardware. Cyberspatial will provide Hardware as specified in the Contract. Hardware purchases are non-cancelable and non-refundable, and deliveries may not be deferred without Cyberspatial’s prior written consent. Cyberspatial reserves the right to select the manner in which Hardware is packaged and shipped. All Hardware is shipped FOB Origin (Incoterms 2022). Title to, and risk of loss of, the Hardware passes to Customer upon shipment. Hardware shipping dates quoted by Cyberspatial are made in good faith but are not guaranteed; Cyberspatial reserves the right to extend shipping dates as it deems necessary in its sole discretion, without liability to Customer. Installation of Hardware is the responsibility of Customer unless otherwise agreed in a separate statement of work. No Hardware may be returned for credit or repair without the prior written authorization of Cyberspatial. Authorized return shipments must be returned in good condition to Cyberspatial’s designated receiving point, must be accompanied by a packing slip, including Cyberspatial’s assigned Return Authorization Number, and must have transportation charges prepaid.
1.3 Services. If Customer orders Services, then Cyberspatial will provide the Services set forth in the applicable Attachment C – Statement of Work. Customer acknowledges that the provision of Services by Cyberspatial is dependent on Customer providing reasonable access to relevant resources, information technology infrastructure, data, and providing timely decisions and input in connection with those Services. Customer will provide any necessary accounts (e.g., creating new user accounts, maintaining existing accounts, provisioning user permissions and access) as applicable for Cyberspatial to provide Services. Customer will also provide Cyberspatial with all necessary onsite and/or remote access, including if applicable via secure VPN, to Customer’s network, systems, infrastructure, and facilities (such as by providing badges and access credentials where applicable). Customer shall provide all necessary assistance and co-operation in a timely fashion as required for Cyberspatial to gain access to cloud environment or Customer Data needed to provide Support and Maintenance (e.g., whitelisting IP addresses, configuring suitable firewalls, enabling the required support functionality in End User’s cloud environment).
1.4 Trial and Beta Products. If a Contract specifies that Cyberspatial is providing Customer with a trial, evaluation, developer license to, or beta version of any Cyberspatial Offerings (“Trial Products”), Customer agrees to use the Trial Products solely for evaluation purposes, in a non-production environment, for a 30-day evaluation period unless a different period is specified in the Contract (“Trial Period”). At the end of the Trial Period, Customer’s right to use the Trial Products automatically expires and Customer shall uninstall the Trial Products and return all copies or partial copies of the Trial Products to Cyberspatial. If Customer desires to continue its use of the Trial Products beyond the Trial Period, the parties will enter into a new Contract for the Trial Products. IN ADDITION TO ANY DISCLAIMERS IN SECTION 5, TRIAL PRODUCTS ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS AT CUSTOMER’S SOLE RISK. CYBERSPATIAL HAS NO LIABILITY FOR CUSTOMER’S USE OF THE TRIAL PRODUCTS UNDER ANY THEORY OF LIABILITY. Cyberspatial does not provide support for Trial Products. Trial Products may be subject to reduced or different security, compliance and privacy commitments.
2. LICENSE RESTRICTIONS
2.1 Customer will not directly or indirectly, nor authorize any of its Representatives or any third party to, do any of the following: (a) copy, modify or create derivative works of the Cyberspatial Offerings, (b) publish, sublicense, sell, resell, rent, lease, market or distribute the Cyberspatial Offerings, or otherwise make the Cyberspatial Offerings available to anyone other than Customer’s Users with a need to know; (c) reverse engineer, decompile, disassemble or otherwise attempt to gain access to the source code form of the Cyberspatial Offerings; (d) use the Cyberspatial Offerings in violation of any applicable law, including export, intellectual property, libel, and privacy laws; (e) remove any proprietary notices from the Cyberspatial Offerings, or any other materials made available by Cyberspatial; (f) use or access the Cyberspatial Offerings in order to build a competitive product or service; (g) interfere with or disrupt the integrity or performance of the Cyberspatial Offerings or any data contained therein; (h) attempt to gain unauthorized access to the Cyberspatial Offerings; (i) publish or disclose to third parties any evaluation of the Cyberspatial Offerings, or data or information on Customer’s results from using the Cyberspatial Offerings, without Cyberspatial’s prior written consent; or (j) perform vulnerability, load or any other testing of the Platform without Cyberspatial’s prior written consent. Customer is responsible for each User’s use of the Cyberspatial Offerings and compliance with the terms of the Contract.
2.2 No Other Rights. Except as expressly set forth in the Contract, no additional rights are granted to Customer. Cyberspatial hereby reserves all rights not expressly granted to Customer under the Contract.
3. PAYMENT
3.1 Fees and Expenses. Customer will pay the applicable Fees and any expenses as specified in accordance with the Contract. Customer will also reimburse Cyberspatial for any expenses as specified in the SOW or otherwise authorized by Customer in writing (including via email). Unless otherwise specified in the Contract or invoice, all payments by Customer to Cyberspatial under the Contract are due and payable within 15 calendar days of the invoice date. All payments shall be made via ACH or wire transfer to an account designated by Cyberspatial. All money amounts set forth herein are expressed in, and all payments to be made hereunder will be made in, United States dollars. All payments are non-refundable and all Fees are non-cancellable.
3.2 Taxes. Notwithstanding the terms of the Federal, State, and Local Taxes Clause, the Contract price excludes all State and Local taxes levied on or measured by the Contract or sales price of the services or completed supplies furnished under this contract. Customer will pay to Cyberspatial an amount equal to any Taxes arising from or relating to the Agreement, including sales, service, use or value added taxes, which are paid by or are payable by Cyberspatial. If Customer is required under any applicable law or regulation to withhold or deduct any portion of the payments due to Cyberspatial, then the sum payable to Cyberspatial will be increased by the amount necessary so that Cyberspatial receives an amount equal to the sum it would have received had Customer made no withholdings or deductions. Cyberspatial shall state separately on its invoices taxes excluded from the fees, and Customer agrees either to pay the amount of the taxes to the Contractor or provide evidence necessary to sustain an exemption
3.3 Verification of Use. Cyberspatial has the right to audit Customer’s use of the Software during the term of the Agreement and for 24 months thereafter. Cyberspatial may only conduct an audit once per 12-month period, and audits will be scheduled at a mutually agreeable time at Customer’s facilities during normal business hours. Customer will provide Cyberspatial and its independent auditors with access to Customer’s equipment, books, records, and operations at reasonable times, and Customer will cooperate in all respects necessary to enable Cyberspatial and its independent auditors to verify Customer’s compliance with the Agreement. If an audit reveals that Customer has failed to pay Fees consistent with its use of the Cyberspatial Offerings, Customer will pay Cyberspatial the applicable Fees for the overuse, based on the then-current per-unit rate on the applicable Order, and reimburse Cyberspatial for all reasonable costs and expenses incurred by Cyberspatial in connection with that audit.
3.4 Past Due Invoices. Any portion of any fee or other amount payable hereunder that is not paid when due will accrue interest at one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. Cyberspatial shall also be entitled to recover any costs associated with its attempts to collect payment for overdue invoices including but not limited to collections agency fees.
4. DATA
4.1 Customer Data. Customer is solely responsible for collecting and providing Customer Data to Cyberspatial that is needed for Cyberspatial’s provision of the Cyberspatial Offerings. Customer retains ownership of any Intellectual Property Rights that it holds in Customer Data. When Customer or a User uploads, submits, stores, or sends Customer Data to Cyberspatial in connection with the Cyberspatial Offerings, Customer hereby grants Cyberspatial (and its third-party service providers) a worldwide, non-exclusive license to use, host, store, reproduce, modify, create derivative works (such as those resulting from translations, adaptations or other changes Cyberspatial makes so that Customer Data is better utilized), communicate, perform, display and distribute Customer Data solely for purposes of providing the Cyberspatial Offerings to Customer. Cyberspatial does not and is not obligated to verify, authenticate, monitor or edit Customer Data or any other information or data provided to Cyberspatial for completeness, integrity, quality, accuracy or otherwise. Customer, not Cyberspatial, is responsible and liable for the completeness, integrity, quality and accuracy of Customer Data. Cyberspatial does not guarantee or make any promises regarding the accuracy or completeness of Customer Data.
4.2 Anti-Virus. Customer will, and will ensure that its Users will, (a) deploy and maintain current up-to-date commercially available, and consistent with industry standards, anti-virus, anti-spam, anti-malware software on all information system components including personal computers, laptops, and servers, where applicable, used for the purpose of accessing and transmitting Customer Data to Cyberspatial, (b) provide for regular scanning for viral infections and update virus signature files frequently, and (c) immediately inform Cyberspatial if it becomes aware of the possibility of transmission of any virus, spam or malware to Cyberspatial.
5. WARRANTIES; DISCLAIMER
5.1 Warranty for Hardware. Cyberspatial warrants to Customer and End User that the Hardware will perform substantially in accordance with the applicable Hardware Documentation for a period of 60 days after delivery. If the Hardware does not conform to this warranty in any material respect, then as Customer’s exclusive remedy and Cyberspatial’s sole liability and obligation, Cyberspatial will use commercially reasonable efforts to correct the non-conforming Hardware. Cyberspatial will use commercially reasonable efforts to pass through to Customer the benefit of any warranties offered by the third-party manufacturers of the Hardware.
5.2 Warranty for Services. Cyberspatial warrants to Customer and End User that it will perform the Services in a professional manner for a period of 60 days after delivery. If the Services do not conform to this warranty in any material respect, then as Customer’s exclusive remedy and Cyberspatial’s sole liability and obligation, Cyberspatial will use commercially reasonable efforts to correct the Services.
5.3 Warranty for Software. Any warranty for the Software is set forth solely in the Attachment B – Software License Agreement, which is incorporated by reference.
5.4 DISCLAIMER. OTHER THAN AS PROVIDED IN THIS CONTRACT, CYBERSPATIAL MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, AND HEREBY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY AND WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. THE SERVICES ARE PROVIDED “AS IS.” CYBERSPATIAL MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WHATSOEVER RELATING IN ANY WAY TO THE SERVICES, INCLUDING ANY PART THEREOF, OR OTHER CONTENT OR SERVICE THAT MAY BE ACCESSIBLE DIRECTLY OR INDIRECTLY THROUGH THE SERVICES. CYBERSPATIAL DOES NOT WARRANT THAT THE HARDWARE OR SERVICES WILL MEET CUSTOMER’S NEEDS OR REQUIREMENTS OR THAT THE PROVISION OF THE CYBERSPATIAL OFFERINGS WILL BE UNINTERRUPTED, AVAILABLE AT ANY PARTICULAR TIME, OR ERROR-FREE. FURTHER, CYBERSPATIAL DOES NOT WARRANT THAT ALL ERRORS IN THE HARDWARE OR SERVICES ARE CORRECTABLE OR WILL BE CORRECTED. CUSTOMER AGREES THAT ITS PURCHASE OF HARDWARE OR SERVICES IS NOT CONTINGENT ON THE DELIVERY OF ANY FUTURE FUNCTIONALITY OR FEATURES, NOR DEPENDENT ON ANY ORAL OR WRITTEN PUBLIC COMMENTS MADE BY CYBERSPATIAL WITH RESPECT TO FUTURE FUNCTIONALITY, FEATURES OR PRODUCT ROADMAPS.
6. INTELLECTUAL PROPERTY
6.1 Cyberspatial Ownership. Cyberspatial retains ownership of all right, title and interest, including all related Intellectual Property Rights, in and to the Cyberspatial Offerings.
6.2 Software. Customer’s license to any Software purchased under this Contract shall be governed by Attachment B – Software License Agreement, which is incorporated by reference. Customer’s license to any Software purchased under this Contract shall be governed by Attachment B – Software License Agreement, which is incorporated by reference.
6.3 General Skills. Nothing in the Contract is intended to prohibit or limit Cyberspatial from using any “skills or knowledge of a general nature” acquired during the course of providing the Cyberspatial Offerings. For purposes of the Contract, “skills or knowledge of a general nature” includes, without limitation, information publicly known or that could reasonably have been acquired in similar work performed for another customer, but does not include Customer’s Confidential Information.
7. CONFIDENTIALITY. Except as otherwise set forth in this Contract, the receiving party (“Recipient”) will maintain all of the disclosing party’s (“Discloser”) Confidential Information in confidence and will protect such information with the same degree of care that Recipient exercises with its own Confidential Information, but in no event less than a reasonable degree of care. Recipient will not use Discloser’s Confidential Information except to carry out its rights and obligations under the Contract. Recipient will not divulge Discloser’s Confidential Information (or any information derived therefrom) to any third party except to Representatives of Recipient, and will limit access to and use of any of Discloser’s Confidential Information to those Representatives of Recipient who have a need to use the information to exercise Recipient’s rights under or perform under the Contract, and who are subject to a contractual, professional or other obligation to keep such information confidential that is no less protective of Discloser than this Section 7. Each party is responsible for any violation of this Section 7 by its Representatives. If Recipient suffers any unauthorized disclosure, loss of, or inability to account for Discloser’s Confidential Information, Recipient will promptly notify and cooperate with Discloser, and take such actions as may be necessary or reasonably requested by Discloser to minimize the damage. If Recipient is legally required to disclose Discloser’s Confidential Information, Recipient will, as soon as reasonably practicable, provide Discloser with written notice of the applicable order or subpoena creating the obligation to enable Discloser to seek a protective order or other appropriate remedy, unless such notice is prohibited by applicable law. In addition, Recipient will exercise reasonable efforts, at Discloser’s expense, to obtain assurance that confidential treatment will be accorded to such Confidential Information and will make no disclosure in excess of that which is required. Each party may disclose information concerning the Contract and the transactions contemplated hereby, including providing a copy of the Contract, to any or all of the following: (a) potential acquirers, merger partners, investors, lenders, financing sources, and their personnel, attorneys, auditors and investment bankers, solely in connection with the due diligence review of such party by such persons and provided that such disclosures are made in confidence, (b) the party’s outside accounting firm, (c) the party’s outside legal counsel. Each party may also disclose the Contract in connection with any litigation or legal action concerning the Contract to the extent such disclosure is required or recommended upon advice of counsel, and (d) pursuant to a registration statement, annual, quarterly or current report, proxy statement, or other filing with, and any exhibits thereto, filed with the Securities and Exchange Commission, securities exchange or quotation service, or any state securities commission, or any other associated documents or materials so filed or furnished. All of Discloser’s Confidential Information disclosed to Recipient, and all copies thereof, are and will remain the property of Discloser.
8. TERMINATION AND SUSPENSION
8.1 Termination. Each party will have the right to terminate the applicable Order if the other party breaches any term of the Contract and fails to cure such breach within 30 days (or 10 days in the case of non-payment) after written notice thereof.
8.2 Effect of Termination. Customer will promptly pay to Cyberspatial any and all unpaid amounts due under the Contract. Upon the termination or expiration of the Contract, Customer will (a) within ten (10) days return or destroy, at Cyberspatial’s direction, any and all Software and Cyberspatial Materials relating to the expired or terminated Contract, and all copies thereof, and (b) upon Cyberspatial’s request certify in writing to Cyberspatial that all actions required by the preceding (a) have been satisfied. Further, each party as Recipient will either return or destroy any and all Confidential Information of the Discloser, and all copies thereof, at the direction of the Discloser and provide written proof of same upon the Discloser’s reasonable request.
8.3 Suspension. Cyberspatial reserves the right to suspend access to, and provision of, the Cyberspatial Offerings provided to Customer if: (a) Customer is delinquent on any payment obligations for more than 30 days following written notice of late payment; (b) Cyberspatial reasonably believes that suspension of the Cyberspatial Offerings is necessary to comply with the law or requests of governmental entities; or (c) Cyberspatial reasonably determines that Customer’s use of the Cyberspatial Offerings in violation of this Agreement poses any security or vulnerability risk to Cyberspatial, its other customers, or the Cyberspatial Offerings. Customer is only responsible for Fees during the period of suspension if the underlying cause was Customer’s breach of the Agreement. Cyberspatial will endeavor to give advance notice of the suspension, to the extent it is able, taking into account the nature of the underlying cause. Cyberspatial will restore access to the suspended Cyberspatial Offerings promptly after the underlying cause of suspension is mitigated.
8.4 Survivability. No termination or expiration of this Agreement shall limit or affect either Party’s rights or obligations that accrued prior to the effective date of termination or expiration (including without limitation payment obligations). Sections 4, 5 (but only for the period of time specified therein), 6, 8, 9, 10, 11, 12, 13, 14, 15, and 16 shall survive any termination or expiration of this Agreement. Termination is not an exclusive remedy and all other remedies will remain available.
9. INDEMNIFICATION
9.1 Cyberspatial Obligations. Cyberspatial will, at its own cost and expense, defend Customer against any cause of action, claim, suit or proceeding (each a “Claim”) made or brought against Customer by a third party to the extent the Claim alleges that Customer’s permitted use of Cyberspatial’s Offerings infringes or misappropriates any copyright, trade secret or any patent issued in the U.S. of a third party, and indemnify Customer for any damages finally awarded against Customer, or agreed upon by Cyberspatial in settlement, and incidental costs reasonably incurred by Customer in connection with the Claim. If a Claim under this Section 9.1 is brought or threatened, or Cyberspatial believes is likely to occur, Cyberspatial may, at its option, (a) procure for Customer the right to use the impacted Cyberspatial Offerings, or (b) replace the impacted Cyberspatial Offerings with non-infringing products that are functionally equivalent in material respects. If neither option (a) nor option (b) can be accomplished despite Cyberspatial’s commercially reasonable efforts, then Cyberspatial may terminate the Contract and related Software License Agreement, and upon return or cessation of use of the Cyberspatial Offerings, issue a pro-rata refund or credit to Customer for any prepaid Fees corresponding to the remaining Contract Term of the impacted Cyberspatial Offerings, as applicable, after the date of termination. Cyberspatial will have no liability under the Contract or otherwise to the extent a Claim is based upon (i) use of the Cyberspatial Offerings in combination with software, hardware or technology that is not reasonably necessary to use the Software and not provided by or specified by Cyberspatial, if infringement would have been avoided in the absence of the combination, (ii) modifications to the Cyberspatial Offerings not made by or for Cyberspatial, if infringement would have been avoided by the absence of the modifications, (iii) Cyberspatial’s use of any Customer Data or any other Customer-provided material in accordance with the Contract; (iv) Customer’s use of the Cyberspatial Offerings in violation of the Contract; (v) Cyberspatial’s compliance with a Customer-provided specification or instruction or (vi) use of any version other than a current release of the Cyberspatial Offerings, if infringement would have been avoided by use of a current release made available to Customer.
9.2 Customer Obligations. Customer will, at its own cost and expense, defend Cyberspatial against any Claim made or brought against Cyberspatial by a third party, to the extent arising out of or attributable to (a) Customer Data or any other materials provided by Customer hereunder, or (b) any decision or action taken by Customer based on the Cyberspatial Offerings or results generated by their use, and indemnify Cyberspatial for any damages finally awarded against Cyberspatial, or agreed upon by Customer in settlement, and incidental costs reasonably incurred by Cyberspatial in connection with the Claim.
9.3 Indemnity Process. The indemnified party must (a) notify the indemnifying party promptly in writing of an actual or potential Claim, setting forth in reasonable detail the facts and circumstances surrounding the Claim; (b) give the indemnifying party sole control of the defense of the Claim and any related settlement negotiations, including not making any admission of liability or take any other action that limits the ability of the indemnifying party to defend the Claim; and (c) cooperating and, at the indemnifying party’s request and expense, assisting in such defense. However, the indemnifying party shall not settle any Claim without the indemnified party’s prior written consent, which will not be unreasonably withheld or delayed, unless the settlement unconditionally releases the indemnified party of all liability, and imposes no obligations or restrictions on the indemnified party. The indemnified party may engage counsel of its choice at its own expense.
10. LIMITATION ON LIABILITY
10.1 LIMITATION ON LIABILITY. EXCEPT AS PROVIDED IN SECTION 10.3 BELOW AND FOR FEES DUE BUT UNPAID, IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER FOR THE CYBERSPATIAL OFFERING GIVING RISE TO THE CLAIM IN THE 12 MONTHS PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO SUCH LIABILITY OCCURRED. THE LIMITATIONS CONTAINED IN THIS SECTION 10 APPLY IN SPITE OF ANY FAILURE OF THE ESSENTIAL PURPOSE OF THE AGREEMENT OR ANY LIMITED REMEDY HEREUNDER. THIS IS AN AGGREGATE LIMITATION AND MULTIPLE CLAIMS WILL NOT EXPAND IT.
10.2 EXCLUSION OF CONSEQUENTIAL AND RELATED DAMAGES. EXCEPT AS PROVIDED IN SECTION 10.3 BELOW, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, DATA OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, REGARDLESS OF WHETHER A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND IN SPITE OF ANY FAILURE OF THE ESSENTIAL PURPOSE OF THE AGREEMENT OR ANY LIMITED REMEDY HEREUNDER.
10.3 EXCLUSIONS TO SECTIONS 10.1 AND 10.2. NOTWITHSTANDING THE LIMITATIONS SET FORTH IN SECTIONS 10.1 AND 10.2 ABOVE, IN NO EVENT WILL EITHER PARTY’S LIABILITY TO THE OTHER PARTY BE LIMITED FOR (A) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9, (B) CUSTOMER’S BREACH OF THE LICENSE AND SERVICES AGREEMENT OR RESTRICTIONS IN SECTIONS 1.6, 2, 6.1, OR (C) CLAIMS ARISING OUT OF EITHER PARTY’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT.
11. END USERS
11.1 If Customer is not the End User, then Customer shall ensure End User accepts all the terms of this Contract.
11.2 U.S. Government End Users. If Customer or End User is an agency, department, or other entity of the United States government (“U.S. Government”), the following provisions will apply (and Customer will ensure that the following provisions are included in the applicable end user agreement).
(a) All Cyberspatial Offerings under this Contract are deemed to be “commercial services,” “commercial products,” “commercial computer software,” and “commercial computer software documentation,” respectively, as defined by 48 C.F.R. 2.101. Cyberspatial developed the Cyberspatial Offerings at private expense and sells or offers to sell them to customers other than the U.S. Government.
(b) The U.S. Government End User’s rights in Cyberspatial’s Technical Data and Computer Software related to the Cyberspatial Offerings include only those rights specified in this Contract, and shall be restricted in accordance with FAR 12.211, 12.212 and 27.405-3 or DFARS 227.7102 and 227.7202, and other applicable governmental regulations. Any use, modification, reproduction, release, performance, display or disclosure of the software and accompanying documentation by the Government will be governed solely by the terms of this end user agreement and will be prohibited except to the extent expressly permitted by the terms herein. In no event shall source code be provided, licensed, or considered to be a deliverable under this Contract.
(c) For any resale to a U.S. Government End User, Customer shall ensure Cyberspatial Offerings are only sold under commercial terms. Any resale of the Software shall be subject to the Software License Agreement that must be accepted in writing by a warranted contracting office on behalf of the U.S. Government. Cyberspatial affirmatively rejects any other FAR, DFARS or other government requirements.
12. MISCELLANEOUS
12.1 Governing Law.
(a) U.S. government End Users. This Agreement is governed by United States Federal law.
(b) For all other End Users, the Parties agree (i) the laws of the State of Delaware govern all matters arising out of the Agreement, excluding rules as to the choice and conflict of law, and (ii) all disputes arising out of or in connection with the Agreement will be finally settled under the Commercial Arbitration Rules of the American Arbitration Association using expedited procedures by one or more arbitrators appointed in accordance with those Rules. The place of the arbitration will be Wilmington, Delaware.
(c) Judgment upon any award(s) rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The Parties waive any right to appeal the arbitral award, to the extent a right to appeal may be lawfully waived. Each party retains the right to seek judicial assistance to: (i) compel arbitration; (ii) obtain interim measures of protection before or pending arbitration, (iii) seek injunctive relief in the courts of any jurisdiction as may be necessary and appropriate to protect the unauthorized disclosure of its proprietary or confidential information, and (iv) enforce any decision of the arbitrator(s), including the final award. The Parties will share equally in the costs of the arbitration. Arbitrator(s) will award to the prevailing party, if any, as determined by the arbitrator(s), its reasonable attorneys’ fees and costs, including the costs of the arbitration. The Parties shall keep confidential all awards in their arbitration, together with all materials in the proceedings created for the purpose of the arbitration and all other documents produced by the other party in the proceedings not otherwise in the public domain, save and to the extent that disclosure may be required of a party by legal duty, to protect or pursue a legal right, or to enforce or challenge an award in legal proceedings before a court or other judicial authority. If any action is brought to enforce any provision of the Agreement or to declare a breach of the Agreement, then the prevailing party will be entitled to recover, in addition to any other amounts awarded, reasonable legal and other related costs and expenses, including attorney’s fees, incurred thereby. For purposes of this Section only, “prevailing party” means the party that prevails on a majority of causes of action in such dispute.
12.2 Assignment. Customer shall not assign or transfer (whether by merger, operation of law or otherwise) the Contract, in whole or in part, without Cyberspatial’s prior written consent, which consent shall not to be unreasonably withheld. Any assignment or transfer without Cyberspatial’s prior written consent may result in a termination of the Contract and all licenses. A change of control of Customer will be deemed an assignment for purposes of this Section. Cyberspatial may assign or transfer its rights and delegate its obligations under the Contract, without Customer’s consent, to an affiliate or pursuant to a corporate reorganization, merger, acquisition or sale of all or substantially all of its assets to which the Contract relates. Any attempted assignment or delegation in violation of the foregoing is void. The Contract is binding upon the parties and their successors and permitted assigns.
12.3 Subcontractors. Cyberspatial may subcontract parts of the Cyberspatial Offerings to third parties. Cyberspatial is responsible for breaches of the Contract caused by its subcontractors.
12.4 Independent Contractor. The Parties are independent contractors. Nothing in this Contract shall be deemed to constitute, create, give effect to or otherwise recognize a joint venture, partnership, formal business entity or any type of permanent arrangement, and the employees of one Party shall not be deemed employees of the other. Each Party agrees not to represent itself in any way as an agent of the other.
12.5 Marketing. Cyberspatial may include and use Customer’s name, trademarks, logos and designs on a list of customers and may refer to Customer as a user of the Cyberspatial Offerings in its advertising, marketing, promotional and investor materials.
12.6 Remedies. The parties agree that money damages are not a sufficient remedy for any breach or anticipated breach of Section 2 (License Restrictions), Section 6 (Intellectual Property), and Section 7 (Confidentiality) or any other provisions of the Contract which may cause either party irreparable injury or may be inadequately compensable in monetary damages. Accordingly, each party is entitled to seek specific performance, injunctive or other equitable relief as a remedy for any such breach or anticipated breach without the necessity of proving irreparable harm or posting bond and without waiving any other remedies at law or in equity which may be available in the event of any action to enforce such provisions.
12.7 No Third-Party Beneficiaries. No provision of the Contract is intended nor will be interpreted to provide or create any third-party beneficiary rights or any other rights of any kind in any third party, affiliate or subsidiary, and all provisions hereto are solely between Cyberspatial and Customer.
12.8 Notices. Any notice, report, approval, or consent required or permitted hereunder shall be in writing and sent by certified mail with return receipt requested or by facsimile or electronic mail, electronically confirmed and followed up immediately by regular mail (any email notice to Cyberspatial must be sent to legal@cyberspatial.com), or major commercial rapid delivery courier service to the address specified in the applicable Order.
12.9 Compliance with Law. Customer represents and warrants that, to the best of Customer’s knowledge, the provisions of the Contract, and the rights and obligations of the parties hereunder, are enforceable under the laws of the countries within which the Cyberspatial Offerings will be used. Customer and Users will use the Cyberspatial Offerings in compliance with the requirements of the Contract and all applicable law. Without limiting the foregoing, Customer acknowledges that the Cyberspatial Offerings, and related technical data received from Cyberspatial may be subject to U.S. export and import controls. In using the Cyberspatial Offerings, and related technical data, Customer will comply with all applicable laws, and shall not commit any act that, directly or indirectly, would violate any United States law, regulation or order, including tax, export and foreign exchange laws, import controls, and export controls. Additionally, Customer agrees that the Cyberspatial Offerings, and related technical data are not to be used, acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals, nor used for nuclear activities, chemical or biological weapons, or missile projects unless authorized by the U.S. Government.
12.10 Force Majeure. Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under the Contract due to any cause beyond its reasonable control, including without limitation an act of war, terrorism, act of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, pandemic, governmental act or failure or degradation of the Internet. The delayed party shall give the other party notice of the force majeure, the anticipated impact of the force majeure on the affected party’s performance, and use commercially reasonable efforts to correct its failures or delays in performance.
12.11 Entire Contract. The Contract constitutes the entire agreement of the parties with respect to the subject matter hereof. The Contract supersedes all prior or contemporaneous negotiations, representations, promises, and agreements concerning the subject matter herein whether written or oral. The term “includes”, “including” and the like means “including without limitation”.
12.12 Amendments. Any and all modifications, waivers or amendments must be made by mutual agreement and shall be effective only if made in writing and signed by each Party. The Contract may be modified solely by a writing signed by both parties. No terms, provisions or conditions of any purchase order, acknowledgement or other business form that Customer may use in connection with the acquisition or licensing of the Cyberspatial Offerings will have any effect on the rights, duties or obligations of the parties under the Contract, or otherwise modify the Contract, regardless of any failure of Cyberspatial to object to such terms, provisions, or conditions.
12.13 Waiver: A waiver of any breach of the Contract is not deemed a waiver of any other breach.
12.14 Severability: If any provision of the Contract is held to be invalid or unenforceable, the invalidity or unenforceability will not affect the other provisions of the Contract.
12.15 Electronic Signatures: Electronic signatures that comply with applicable law are deemed original signatures.
12.16 Counterparts: The Contract may be executed in counterparts and by facsimile or electronic signature, all of which taken together constitute a single agreement between the parties. Each signed counterpart, including a signed counterpart reproduced by reliable means (such as facsimile and electronic signature), will be considered as legally effective as an original signature.
13. DEFINITIONS
“Cyberspatial Materials” means any data, technology, and materials provided or made available to Customer by Cyberspatial for use with the Software and Services pursuant to this Agreement, including sample code, software libraries, command line tools, data integration code, templates, parsers, and configuration files.
“Cyberspatial Offerings” means the Cyberspatial Hardware, Materials, Documentation, and Software.
“Documentation.” means the technical specification documentation provided to Customer by Cyberspatial regarding the Software, Cyberspatial Materials, and Product Access Software.
“Effective Date” means the effective date of the Order, as identified in the Order.
“End User” means Customer unless Customer is purchasing Software on behalf of another entity, then that entity would be End User.
“End User Data” means any information, data, data sets, text or other Customer content supplied by Customer or a User to Cyberspatial in connection with any Cyberspatial Offering.
“Fees” means the amounts specified in the Order as payable for the applicable Cyberspatial Offerings, and any other fees or expenses due and payable under or in connection with the Contract.
"Governmental Authority" means an End User that is (i) an agency, department or other entity of the United States federal government, (ii) spending federal dollars, or (iii) an authorized purchaser under a General Services Administration (“GSA”) contract, including but not limited to state and local government agencies.
“Hardware” means Products sold by Cyberspatial that have Software installed.
“Intellectual Property Rights” means any all right, title, and interest in and to any and all patents, copyrights, service marks, trademarks, know-how, trade secrets, trade names, rights in trade dress and packaging, moral rights, rights of privacy, rights of publicity, and similar rights of any type, including any applications, continuations, or other registrations with respect to any of the foregoing, under the laws or regulations of any governmental, regulatory, or judicial authority.
“Product Access Software.” means the software provided by Cyberspatial for installation locally by Customer in order to access or connect with the Products.
“Proprietary Information” means all proprietary, confidential and/or trade secret information disclosed by one Party (“Disclosing Party”) to another Party (“Receiving Party”) whether visually, orally or in writing, in connection with this Contract including, but not limited to , trade secrets, information in the form of proposals, strategy, marketing and business development information, pricing and financial information, designs, drawings, concepts, requirements, specifications, data, inventions, software code or documentation, interfaces, components, processes or procedures, and any other non-public, competitively or technically valuable information. Proprietary Information includes information owned or controlled by the Disclosing Party as well as proprietary, confidential and/or trade secret information entrusted to the Disclosing Party by a third party which may be restrictively marked as being proprietary to that third party.
“Representatives” means, with respect to a party, such party’s affiliates, and its and their employees, directors, officers, advisors, consultants, subcontractors or other agents or representatives.
“Services” means Support and Maintenance, Professional Services, and/or Training, each as defined herein.
“Software” means the Cyberspatial proprietary commercial software in a Customer-hosted or managed cloud-hosted environment, any third-party software or data feeds, the Product Access Software, application programming interfaces (“API”), software development kit (“SDK”), features, add-ons, and models or algorithms in any format specified in the Order (and any related purchase orders, statements of work, or amendments, in each case incorporated into this Agreement) or provided or made available to Customer in connection with this Agreement, and any improvements, modifications, derivative works, patches, updates, and upgrades to any of the foregoing that Cyberspatial provides in its discretion to Customer hereunder.
“Statement of Work” or “SOW” means one or more statements of work that describe the Services Cyberspatial is to perform for Customer as listed in the Order.
“Taxes” means any form of taxation, levy, duty, charge, contribution or impost of whatever nature and by whatever authority imposed (including any fine, penalty, surcharge or interest), excluding any taxes based solely on the net income of Cyberspatial.
“Usage Allowance” means any usage limits (including the number of Users, assets, end user node limits, and server limits), quantities or other parameters specified in the Order with respect to Customer’s licensed use of the Software.
“Users” means the individuals authorized by Customer to access and use the Software at any one time through Customer’s account under the Contract, and for whom Customer has issued or approved access credentials. Subject to the specific Software, Customer may identify certain Users who will have specific roles or administrative, security and supervisory capacities with respect to the Software made available to Customer under the Contract.
