Cogent Security Master Services Agreement

This Master Service Agreement (this “Agreement”) is between Cogent Security, Inc., a Delaware corporation (“Cogent”) and Customer, and governs Customer’s use of the Service (each as defined below).

“Customer” means a person or entity that accepts and agrees to the terms of this Agreement as of the earlier date on which such person or entity either clicks a box indicating acceptance of this Agreement, executes an Order Form referencing this Agreement, or uses the Service.

Cogent reserves the right to modify or update this Agreement in its sole discretion. The effective date of such updates and/or modifications will be the earlier of: (i) 30 days from the date of such update or modification; or (ii) Customer’s continued use of the Service.

IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE SERVICE. THE SERVICE IS INTENDED FOR THE CUSTOMER AND ITS AUTHORIZED USERS ONLY AND IS NOT FOR USE BY CHILDREN UNDER 13 YEARS OF AGE. IF AN INDIVIDUAL IS ENTERING INTO THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, SUCH PERSON REPRESENTS AND WARRANTS THAT IT HAS THE LEGAL AUTHORITY TO BIND SUCH LEGAL ENTITY TO THIS AGREEMENT AND THIS AGREEMENT APPLIES TO SUCH ENTITY, WHICH IS DEEMED CUSTOMER.

If Customer and Cogent have executed a written agreement governing Customer’s access to and use of the Service as a Cogent customer, then the terms of such signed agreement will govern and will supersede this Agreement.

1. DEFINITIONS

The definitions of certain capitalized terms used in this Agreement are set forth below. Others are defined in the body of the Agreement.

“Affiliate” means, with respect to an entity, any entity or person which directly or indirectly controls, is controlled by, or is under common control with that entity. 

"Beta Features" means any Service features, functionality or services which Cogent may make available to Customer to try at no additional cost, and which is designated as beta, trial, non-production or another similar designation.

“Customer Data” means (i) User authentication information, such as name and email address, and (ii) any data processed by Cogent on Customer’s behalf via the Service.

“DPA” means the Data Processing Agreement available at https://www.cogent.com/legal/dpa.

“Documentation” means the documentation made available by Cogent at https://cogent.com/resources.

“Order Form” means a mutually executed order form or other mutually agreed upon ordering document which references this Agreement and sets forth the applicable Services to be provided by Cogent.

“Service” means Cogent’s proprietary, Software-as-a-Service solution, as described on each applicable Order Form, which includes the Documentation, and all modifications, updates, upgrades thereto and derivative works thereof.

“Subscription” has the meaning ascribed to it in Section 2.1.

“Subscription Term” means the length of the Subscription set forth on the applicable Order Form. 

“Usage Data” means statistical and performance-related information regarding Customer’s use of the Service that Cogent uses to maintain and improve the Service.

“Users” means individuals or entities that are authorized by Customer to use the Service.

2. ACCESS TO AND USE OF SERVICE

   1. Right to Access and Use Service. Subject to the terms of this Agreement, Cogent grants Customer a royalty-free, nonexclusive, nontransferable, worldwide right during each Subscription Term to use the Service, described in the applicable Order Form (the “Subscription”). 

   2. Restrictions. Customer will not: (i) access (or allow a third party to access) the Service in order to monitor the availability, security, performance, or functionality of the Service, or for any other benchmarking or competitive purposes without Cogent’s express written consent; (ii) market, sublicense, resell, lease, loan, transfer, or otherwise commercially exploit or make the Service available to any third party; (iii) modify, create derivative works, decompile, reverse engineer, attempt to gain access to the source code, or copy the Service, or any of their components; (iv) use the Service to conduct any fraudulent, malicious, or illegal activities (each of (i) through (iv), a “Prohibited Use”). 

   3. Beta Features. Beta Features made available by Cogent are provided to Customer for testing purposes only. Cogent makes no commitment to provide Beta Features in any future versions of the Service. Customer is not obligated to use Beta Features. Cogent may immediately and without notice remove Beta Features for any reason without liability to Customer. Cogent does not provide Support for Beta Features. For clarity, all Beta Features are provided "AS IS" without warranty of any kind.

3. COGENT OBLIGATIONS

   1. General. Cogent is responsible for providing the Service in conformance with this Agreement, the Order Form(s), and applicable Documentation. 

4. TERM AND TERMINATION

   1. Term. The term of this Agreement will commence on the Effective Date and will continue for so long as Customer maintains any active Subscription (the “Term”).

   2. Termination for Cause. Either party may terminate this Agreement or any active Subscription for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of the 30-day period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

   3. Effect of Termination. If Customer terminates this Agreement or any active Subscription in accordance with Section 4.2, then Customer will be entitled to a refund equal to the pro rata portion of any prepaid fees allocable to the remaining Subscription Term. If Cogent terminates this Agreement or any active Subscription in accordance with Section 4.2, then Customer will not be entitled to a refund.

4. Suspension. Cogent may suspend Customer’s access the Service if: (I) Customer has had an outstanding, undisputed balance for more than 60 days; (ii) Cogent knows or reasonably suspects that Customer is in breach of this Agreement or is using the Service in a manner that poses a material harm to other Cogent customers or the security, availability, or integrity of the Service. Cogent will use reasonable efforts to notify Customer before any suspension when practicable. The foregoing suspension right is without prejudice to any other rights or remedies Cogent may have under this Agreement 

5. Survival. The following provisions will survive any expiration or termination of the Agreement: Sections 4.3; 5; 6; 8; 9; 11; 12; and 13. 

5. FEES AND PAYMENT

   1. Fees. Customer will pay the fees for the Subscription set forth on the applicable Order Form. Following execution of the Order Form, Cogent will submit an invoice to Customer for the Subscription, and payment will be due within 30 days of the invoice date unless otherwise set forth on the Order Form (the “Due Date”). 

   2. Overdue Charges. If any undisputed, invoiced amount is not received by Cogent by the Due Date, then those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower. 

   3. Taxes. The fees payable hereunder are exclusive of any sales taxes (unless included on the invoice), or similar governmental sales tax type assessments, excluding any income or franchise taxes on Cogent (collectively, “Taxes”) with respect to the Service provided to Customer. Unless Customer provides Cogent with a valid exemption certificate, Customer is solely responsible for paying all Taxes associated with or arising from this Agreement.

6. CONFIDENTIALITY

   1. Confidential Information. Except as explicitly excluded below, any information of a confidential or proprietary nature provided by a party (the “Disclosing Party”) to the other party (the “Receiving Party”) constitutes the Disclosing Party’s confidential and proprietary information (“Confidential Information”). Cogent’s Confidential Information includes the Service and any information conveyed to Customer in connection with Support. Customer Data is Customer’s Confidential Information. Confidential Information does not include information which is (i) already known by the Receiving Party without an obligation of confidentiality other than pursuant to this Agreement; (ii) publicly known or becomes publicly known through no unauthorized act of the Receiving Party; (iii) rightfully received from a third party without a confidentiality obligation to the Disclosing Party; or (iv) independently developed by the Receiving Party without access to the Disclosing Party’s Confidential Information.

   2. Confidentiality Obligations.  Each party will use the Confidential Information of the other party only as necessary to perform its obligations under this Agreement, will not disclose the Confidential Information to any third party, and will protect the confidentiality of the Disclosing Party’s Confidential Information with the same standard of care as the Receiving Party uses or would use to protect its own Confidential Information, but in no event will the Receiving Party use less than a reasonable standard of care. Notwithstanding the foregoing, the Receiving Party may share the other party’s Confidential Information with those of its employees, agents and representatives who have a need to know such information and who are bound by confidentiality obligations at least as restrictive as those contained herein (each, a “Representative”). Each party shall be responsible for any breach of confidentiality by any of its Representatives.

   3. Additional Exclusions. A Receiving Party will not violate its confidentiality obligations if it discloses the Disclosing Party’s Confidential Information if required by applicable laws, including by court subpoena or similar instrument so long as the Receiving Party provides the Disclosing Party with written notice of the required disclosure so as to allow the Disclosing Party to contest or seek to limit the disclosure or obtain a protective order. If no protective order or other remedy is obtained, the Receiving Party will furnish only that portion of the Confidential Information that is legally required, and agrees to exercise reasonable efforts to ensure that confidential treatment will be accorded to the Confidential Information so disclosed.

7. DATA LICENSE AND PROTECTION

   1. Customer Data. Customer grants Cogent a limited license during the Term to use Customer Data to provide and maintain the Service and gather Usage Data.

   2. DPA. Cogent will process all Customer Data for the purposes set forth in this Agreement and in accordance with the DPA.

   3. Security. Cogent maintains, and will maintain during the Term, industry standard physical, technical, and administrative safeguards in order to protect Customer Data and its own computing environment as set forth in Annex II (Technical and Organisational Measures) of the DPA.

   4. Artificial Intelligence. Cogent may use artificial intelligence or machine learning tools (“AI”) in processing Customer Data to provide and maintain the Service as specified in Section 7.1, but Cogent will not, and will not allow any third party to, use Customer Data to train, fine-tune, or improve any AI.

8. OWNERSHIP

   1. Cogent Property. Cogent owns and retains all right, title, and interest in and to the Service and Feedback. Except for the limited license granted to Customer in Section 2.1, Cogent does not by means of this Agreement or otherwise transfer any rights in the Service to Customer (including any derivative works thereof), and Customer will take no action inconsistent with Cogent’s intellectual property rights in the Service.

   2. Feedback. Customer may provide comments, suggestions and recommendations to Cogent with respect to the Service (including, without limitation, comments, suggestions and recommendations with respect to modifications, enhancements, improvements and other changes) (collectively, “Feedback”). In such event, Cogent may freely use and exploit any such Feedback without any obligation to Customer, unless otherwise agreed upon by the parties.

   3. Customer Property. As between the parties, Customer owns and retains all right, title, and interest in and to the Customer Data and does not by means this Agreement or otherwise transfer any rights in the Customer Data to Cogent, except for the limited license set forth in Section 7.1.

9. REPRESENTATIONS AND WARRANTIES

   1. Mutual Representations and Warranties. Each party represents and warrants it: (i) has validly entered into this Agreement and has the legal power to do so.

   2. Cogent Representations and Warranties. Cogent represents and warrants that (i) the Service will materially conform with the Documentation; (ii) the Service will be provided in a manner consistent with generally accepted industry standards; and (iii) Cogent will comply with all laws that are applicable to its operation of the Service.  

   3. Customer Representations and Warranties. Customer represents and warrants that it (i) has all rights and permissions necessary to grant the license in Section 7.1, and (ii) will comply with all laws that are applicable to its use of the Service. 

   4. Disclaimer. WITH THE EXCEPTION OF THE LIMITED WARRANTIES SET FORTH IN THIS SECTION 9, THE SERVICE, AND ANY INFORMATION PROVIDED BY THE SERVICE, IS PROVIDED "AS IS" TO THE FULLEST EXTENT PERMITTED BY LAW. COGENT AND ITS LICENSORS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF PERFORMANCE, ACCURACY, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSES, AND NON-INFRINGEMENT. COGENT DOES NOT WARRANT THAT THE SERVICE (I) IS ERROR-FREE, (II) WILL PERFORM UNINTERRUPTED, OR (III) WILL MEET CUSTOMER'S REQUIREMENTS. THE SERVICE MAY ALLOW CUSTOMER TO CONNECT TO WITH THIRD PARTY SERVICES. CUSTOMER IS SOLELY RESPONSIBLE FOR PROCURING ALL RIGHTS NECESSARY FOR IT TO ACCESS THIRD PARTY SERVICES VIA THE SERVICE AND FOR COMPLYING WITH THE PROVIDER’S TERMS. COGENT DOES NOT PROVIDE, AND HAS NO RESPONSIBILITY FOR, ANY ASPECT OF SUCH SERVICES, INCLUDING COMPATIBILITY ISSUES, ERRORS, OR BUGS, AND DOES NOT GUARANTEE THEIR AVAILABILITY . 

10. INSURANCE

    1. Cogent will maintain in full force and effect during the term of this Agreement: 

1. Commercial general liability insurance on an occurrence basis for bodily injury, death, property damage, and personal injury, with coverage limits of not less than $1,000,000 per occurrence and $2,000,000 general aggregate for bodily injury and property damage; 

2. Umbrella liability insurance on an occurrence form, for limits of not less than $1,000,000 per occurrence and in the aggregate; and 

3. Technology Errors & Omissions and Cyber-risk on an occurrence or claims-made form, for limits of not less than $5,000,000 annual aggregate covering liabilities for financial loss resulting or arising from acts, errors or omissions in the rendering of the Service, or from data damage, destruction, or corruption, including without limitation, unauthorized access, unauthorized use, virus transmission, denial of service, and violation of privacy from network security failures in connection with the Service. 

2. Insurance carriers will be rated A-VII or better by A.M. Best Provider. Cogent’s coverage will be considered primary without right of contribution of Customer’s insurance policies.  

11. INDEMNIFICATION

    1. By Cogent. Cogent will defend Customer, and its Affiliates, including each of the foregoing’s officers, directors, employees and agents (collectively, “Customer Indemnified Parties”), from any claim, demand, dispute, suit or proceeding brought by a third party (each a “Claim”), and Cogent will indemnify Customer Indemnified Parties from and against any related losses, liabilities, damages, costs or expenses (including, without limitation, attorneys’ fees), finally awarded against the Customer Indemnified Parties to such third party, by a court of competent jurisdiction or agreed to in settlement, alleging that (a) the Service, including Customer’s permitted use thereof, infringes or misappropriates any patent, trademark or copyright of such third party or (b) Cogent has violated a law applicable to Cogent’s provision of the Services.

If Cogent becomes, or in Cogent’s opinion is likely to become, the subject of an infringement or misappropriation claim, Cogent may, at its option and expense: (i) procure for Customer the right to continue using the Service; (ii) replace the Service (including any component part) with a non-infringing substitute subject to Customer’s prior written approval; or (iii) modify the Service so that it becomes non-infringing. If none of the foregoing alternatives are available, Cogent shall notify Customer, and Customer may elect to terminate the license immediately pursuant to Section 5.

Cogent will not be obligated to defend or be liable for costs or damages (a) under Section 11.1(a) solely to the extent the infringement or misappropriation is attributable to (x) any unauthorized use, reproduction, or distribution of the Service or Cogent’s intellectual property rights by the Customer Indemnified Parties which is the subject of the claim; or (y) any unauthorized combination of, or modification to, the Service or Cogent’s intellectual property rights, other than as expressly approved by Cogent that causes the underlying claim where such claim would have not occurred but for such unauthorized act; or (b) under Section 11.1(b) to the extent the violation of law is attributable to Customer’s breach of the Agreement.

2. By Customer. Customer will indemnify, defend, and hold harmless Cogent, its Affiliates, and their respective owners, directors, members, officers, and employees (together, the “Cogent Indemnitees”) from and against any Claim against the Cogent Indemnitees related to (i) Customer’s or a User’s engaging in a Prohibited Use, or (ii) Customer’s breach of Section 9.3.

3. Indemnification Process. The indemnified parties will: (a) give the indemnifying party prompt written notice of any claim, action or demand for which indemnity is claimed; (b) give the indemnifying party sole control over the defense and settlement of the claim, provided that the indemnifying party will not settle any claim that involves the payment of money or acknowledgement of wrongdoing on the part of the indemnified parties without indemnified parties’ prior written approval such approval not to be unreasonably withheld, conditioned or delayed; and (c) provide the indemnifying party with reasonable cooperation, at the indemnified parties’ expense, in connection with the defense and settlement of the claim.

12. LIMITATIONS OF LIABILITY

    1. NEITHER PARTY, NOR ITS AFFILIATES, NOR THE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, OR REPRESENTATIVES OF ANY OF THEM, WILL BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, THAT MAY ARISE OUT OF THIS AGREEMENT, EVEN IF THE OTHER PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD AND WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, SERVICE LIABILITY OR OTHERWISE.

    2. EXCEPT WITH RESPECT TO ENHANCED CLAIMS AND UNCAPPED CLAIMS, IN NO EVENT WILL THE COLLECTIVE LIABILITY OF EITHER PARTY, OR THEIR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS AND REPRESENTATIVES, TO THE OTHER PARTY FOR ANY AND ALL DAMAGES, INJURIES, AND LOSSES ARISING FROM ANY AND ALL CLAIMS AND CAUSES OF ACTION ARISING OUT OF, BASED ON, RESULTING FROM, OR IN ANY WAY RELATED TO THIS AGREEMENT, EXCEED THE TOTAL AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER TO COGENT FOR USE OF THE SERVICE DURING THE PRIOR 12 MONTHS UNDER THIS AGREEMENT (“FEES PAID”). THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THIS AGREEMENT WILL NOT ENLARGE OR EXTEND THE LIMITATION OF MONEY DAMAGES.

    3. “Enhanced Claims” any claim and/or liability associated with Cogent’s obligations under, or any breach by Cogent of Sections 7.2 (DPA) and 7.3 (Security & Privacy). Cogent’s total, cumulative liability for all Enhanced Claims will not exceed two times the amount of Fees Paid.

    4. “Uncapped Claims” means any claim or liability associated with: (a) either party’s breach of confidentiality (but not relating to any liability associated with Cogent’s security obligations with respect to Customer Data which remains subject to the Enhanced Claims cap); (b) either party’s respective indemnification obligations under Section 11; or (c) any liability of a party which cannot be limited under applicable law, including gross negligence, recklessness, or intentional misconduct.

13. MISCELLANEOUS 

This Agreement is the entire agreement between Customer and Cogent and supersedes all prior agreements and understandings concerning the subject matter hereof s. Customer and Cogent are independent contractors, and this Agreement will not establish any relationship of partnership, joint venture, or agency between Customer and Cogent. Failure to exercise any right under this Agreement will not constitute a waiver. There are no third-party beneficiaries to this Agreement. This Agreement is governed by the laws of California without reference to conflicts of law rules. For any dispute relating to this Agreement, the Parties consent to personal jurisdiction and the exclusive venue of the courts in San Francisco County, California. Any notice provided by one party to the other under this Agreement will be in writing and sent by electronic mail to the address on file with the party providing the notice. If any provision of this Agreement is found unenforceable, this Agreement will be construed as if it had not been included. Neither party may assign this Agreement without the prior, written consent of the other party, except that either party may assign this Agreement without such consent in connection with an acquisition of the assigning party or a sale of all or substantially all of its assets. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. To the extent there is an inconsistency between the terms of the Agreement, an Order Form and/or the DPA, such documents and their terms will be controlled in the following order of precedence: (i) Order Form; (ii) Agreement; and (iii) DPA (solely with respect to the subject matter thereof).