These Master Terms of Service (“Terms”), together with executed Order Forms (defined below), govern Customer’s use of the products and services owned and operated by ShiftLeft, Inc. d/b/a Qwiet AI, with a principal place of business at 2033 Gateway Place, Suite 500, San Jose, CA 95110 (“Qwiet AI,” “we,” or ”us”). “Customer,” “you,” or “your” means the entity that enters into an Order Form in order to use the Qwiet AI products and services. Customer and Qwiet AI are each a “party” and collectively the “parties.”
These Terms, together with any Order Form(s) (defined below), constitute the entire agreement between Qwiet AI and Customer (the “Agreement”). By signing an Order Form with Qwiet AI, Customer agrees to comply with and be bound by these Terms, effective as of the Order Start Date specified on the first Order Form that Customer enters into with Qwiet AI (“Effective Date”).
The parties hereby agree as follows:
1. Introduction. These Terms, together with any documents that expressly reference these Terms, describe the conditions under which you may use the products and services made available to you by us. We both agree that any changes to these Terms will be in a writing which references these terms, signed by both of us.
2. Orders. Any orders you place with us must be in the form of a written agreement, signed by both you and us, which identifies the Qwiet AI products and services you wish to buy, as well as any other applicable business terms (“Order Form”). You may use the Services (defined below) for up to a maximum number of Applications (defined in the Documentation) equal to (A) if a limit on number of Contributing Developers is called out in the Order Form, five (5) times the number of Contributing Developers, or (B) if a limit on number of Applications is set forth in an Order Form, such limit.
3. Services. As long as you comply with the Agreement, we will make available to you the Qwiet AI proprietary software on a software-as-a-service basis (“Services”), which allows you to submit a representation of your code or your actual code (if you so desire) and other computing information (“Your Configuration Data”) so that we can identify certain security vulnerabilities and weaknesses in your applications. We may, from time to time, update our Services or add new functionality, and these Terms shall apply to any such updates or new functionality. New or other Qwiet AI products may require you to sign a separate agreement with terms that are specific to those products.
a. Access. In order to access and use our Services, you are required to download a software agent (“Agent(s)”) in your software development pipeline. “Agent” is included in the Services. You may limit access to the Services to certain people within your organization (“User(s)”). You are responsible for the confidentiality and security of each User’s login credentials and you remain responsible for each User’s compliance with the Agreement. If you have reason to believe that your access to the Services has been compromised, you agree to immediately notify us and to cooperate with us to prevent or terminate unauthorized access.
b. Documentation. In order to assist you in your use of the Services, installation guides and other related documentation can be found at https://docs.shiftleft.io/ (“Documentation”).
c. Reports. The Services are designed to reveal information about the vulnerabilities and weaknesses in Your Configuration Data and such information may be, at your option, presented in the form of printable reports (“Reports”). While the Reports are considered to be “Services” owned by us, Your Configuration Data and any other of your Confidential Information contained in those Reports remains yours. We may not use your information contained in any Reports except as necessary for us to provide the Services. You are free to use the Reports for any purpose that you determine appropriate, in accordance with these Terms.
d. Rights We Grant You. The Services we provide are licensed, not sold. We grant you a limited, revocable, non-exclusive, non-sublicensable, non-transferable license, during the term set out in the Order Form (“Term”), to download the Agent and access and use the Services for your internal business use only, in accordance with the Documentation and the Agreement.
e. Restrictions on Your Use. Unless we agree otherwise in an Order Form, you will not, nor will you permit others to: (i) use the Services for any reason other than for your own internal business operations, (ii) alter, decompile, reverse compile, create derivative works, translate, disassemble or reverse engineer or seek to obtain the source code of any software underlying the Services, (iii) resell the Services or Reports or any portion thereof, (iv) permit any third party to use the login credentials that have been assigned to your Users, (v) remove or modify any copyright, trademark, or other proprietary notice contained in the Services including any Reports, (vi) circumvent or modify any security measures or technologies included as part of the Services, including those indented to restrict license rights, (vii) use the Services to build a competitive product or service for use by you or any third party, (viii) use the Services in violation of any local, national or international law or regulation, including any applicable export laws, or (ix) knowingly transmit any data, send or upload any material that contains viruses, or any other similar computer code designed to adversely affect the operation of the Services. Applications with more than one thousand (1,000) libraries may not be uploaded to the Services.
f. Suspension of Services. If we reasonably suspect that you aren’t honoring your obligations under the Agreement, we may suspend your access to the Services without notice, pending any investigation.
4. Third-Party Products. You may, if you wish and at your own risk, integrate the Services into other third-party software systems (“Third-Party Products”) to facilitate workflow. We make no representations or warranties (except for third-party integrations that we support per our Documentation) that (a) the Services will integrate into or function as intended if used together with any Third-Party Products, or (b) that the results will be accurate, effective or reliable. We are not responsible for (y) the accuracy or security of any information that may be submitted through the Third-Party Products, or (z) any damage to your computing environment that occurs if the Services are configured together with Third-Party Products.
5. Your Configuration Data. At all times, you retain all right, title and interest in and to Your Configuration Data. However, in order for us to provide the Services, we need certain rights. To that end, you grant us a non-exclusive, worldwide, royalty-free right, during the Term, to collect, use, copy, store, process, display, modify, and transmit Your Configuration Data, to the extent necessary for us to provide the Services. You represent and warrant that you have sufficient rights in Your Configuration Data to grant us the limited license described above. Furthermore, you promise that Your Configuration Data won’t infringe the rights of any third party, and you agree that your license to and provision of Your Configuration Data to us complies with all applicable laws. When the Agreement expires or terminates for any reason, we have no further duty to retain Your Configuration Data, including Your Configuration Data that may be contained in any Reports.
6. Ownership of Services. You recognize and acknowledge that we and our licensors retain all right, title and interest, including all patent, copyright, trade secret and other intellectual property rights in and to the Services and the Documentation, including any and all related and underlying software, tools, techniques, algorithms, works of authorship, databases, technology, and documentation (including Reports, but not including any of Your Configuration Data which may be contained in any Reports). This includes all modifications and derivative works of such that we may develop prior to the Agreement or any information that we may derive (excluding your Confidential Information) in the course of providing the Services. You do not acquire any other rights other than those rights we expressly grant you in the Agreement.
7. Feedback. If you wish, you may provide input, suggestions, recommendations, comments and other feedback about the Services (“Feedback”). If You choose to give us Feedback, you grant us an unlimited, perpetual, worldwide, fully transferable, royalty-free right and license to use, reproduce, modify, create derivative works and sublicense such Feedback without restriction for any purpose we see fit.
8. Fees. Fees are identified in an Order Form. We will bill You for Fees according to the Billing Frequency as defined in an Order Form. Payment is due according to the Payment Terms set forth in an Order Form. For the avoidance of doubt, Net “x” shall mean payment is due within “x” days of Customer’s receipt of an invoice. You are responsible for paying all sales related taxes associated with the Services and Professional Services (defined below), but you aren’t required to pay any taxes based on our income, property or employee payroll taxes. Unless we agree otherwise in an Order Form, all fees are non-cancellable and non-refundable. Failure to timely pay is a material breach of the Agreement. In addition to any remedies at law or in equity that we may have, we may suspend and/or terminate the Services and the Agreement, including any Order Form, if your payment is more than thirty (30) days past due. We agree to notify you at least seven (7) days before we suspend or terminate the Services for non-payment. You will still be charged all applicable fees for the Services during any period of suspension.
9. Maintenance. During the Term, we will provide scheduled maintenance, in accordance with our then-current Service Level Agreement which can be found at https://docs.shiftleft.io/ (“Service Level Agreement” or “SLA”).
10. Professional Services. You may, at your option, purchase professional services to support implementation of the Services to fit your needs, and training related to your use of the Services (“Professional Services”). If applicable, Professional Services will be listed on an Order Form and you will be required to enter into a separate written agreement.
a. Generally. “Confidential Information” means all confidential information disclosed by one of us (“Disclosing Party”) to the other (“Receiving Party”), in any form, that either is designated as confidential or that reasonably should be understood to be confidential given the type of information disclosed and the circumstances surrounding such disclosure. Confidential Information includes, among other things, analyses, business concepts, computer programs, configurations, designs, drawings, ideas, inventions, know-how, login credentials, pricing, product road maps, prototypes, source code, schematics, and trade secrets. Unless it falls into one of the exceptions below, Your Configuration Data is your Confidential Information, and the software underlying the Services, including any trade secrets embodied therein, is our Confidential Information. Confidential Information does not include data or information which the Receiving Party can show (i) is or has become public knowledge through no fault of the Receiving Party, (ii) was known to the Receiving Party at the time of disclosure without an obligation of confidentiality, (iii) is disclosed after written approval of the Disclosing Party, (iv) becomes known to the Receiving Party from a source other than the Disclosing Party without an obligation of confidentiality, or (v) is independently developed by the Receiving Party without access to the Disclosing Party’s Confidential Information.
b. Protection of Information. Each party shall protect the other’s Confidential Information with the same degree of care as it uses to protect its own similar information, and at least a reasonable degree of care. Confidential Information may only be used for the purposes of performance under the Agreement. The Receiving Party recognizes that disclosure of Confidential Information would cause substantial harm for which monetary damages would not be sufficient, and so, if there is an unauthorized disclosure, the Disclosing Party is entitled to equitable relief in addition to any other remedies it might have at law.
12. Our Warranties. We represent and warrant that, during the Term, the Services will substantially conform to the Documentation. This warranty does not apply to the extent that you are using the Services in violation of the Agreement or the Documentation. EXCEPT AS SET FORTH IN THIS SECTION 12, WE EXPRESSLY DISCLAIM ANY ADDITIONAL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WE DO NOT WARRANT THAT (A) THE SERVICES WILL IDENTIFY ANY OR ALL SECURITY VULNERABILITIES; (B) THE SERVICES WILL MEET YOUR REQUIREMENTS; (C) THE INFORMATION PROVIDED THROUGH THE SERVICES IS ACCURATE OR COMPLETE; OR (D) USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. WE MAKE NO PROMISES THAT THE SERVICES WILL WORK TOGETHER WITH ANY THIRD-PARTY PRODUCTS, OR THAT THE RESULTS OF SUCH USE WILL BE EFFECTIVE, ACCURATE OR RELIABLE.
13. LIMITATION OF LIABILITY. EXCEPT TO THE EXTENT LIMITED BY LAW, WE ARE NOT LIABLE TO YOU FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, BUSINESS INTERRUPTION, LOST PROFITS, OR ANY INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, REGARDLESS OF THE FORM OF ACTION, AND HOWEVER ARISING. WE ARE NOT LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER THIRD-PARTY PRODUCTS OR SYSTEMS OUTSIDE OF OUR REASONABLE CONTROL. OUR ENTIRE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY YOU DURING THE PRIOR TWELVE MONTHS UNDER THIS AGREEMENT.
14. Term and Termination
a. Term. The Agreement will remain in effect during the Term, unless earlier terminated in accordance with this Agreement.
b. Termination for Cause. These Terms will remain in effect for as long as an Order Form remains in effect. Either of us may terminate an Order Form immediately upon notice if the other (i) materially breaches the Agreement and doesn’t remedy such breach within thirty (30) days after receiving notification of such breach, (ii) ceases operation without a successor, or (iii) becomes the subject of any bankruptcy, makes a general assignment for the benefit of creditors, or files a petition seeking reorganization.
c. Effect of Termination. If the Agreement expires or terminates for any reason (i) we both agree to return to the other any and all Confidential Information of the other that each of us has in its possession, or, the Receiving Party may choose to destroy any remaining Confidential Information in its possession and provide to the Disclosing Party certification of destruction, (ii) you shall immediately cease all use of and access to the Services and promptly delete the Agent; however, you may continue to use any Reports in accordance with the applicable terms of the Agreement, and (iii) you shall immediately pay to us all fees due through the date of termination. Once this Agreement terminates, we have no further obligation to retain Your Configuration Data or Reports. The following sections will survive termination or expiration of this Agreement: 3(e) (Restrictions on Your Use), 5 (Your Configuration Data), 6 (Ownership of Services), 7 (Feedback), 8 (Fees), 11 (Confidentiality), 12 (Our Warranties), 13 (Limitation of Liability); 14(c) (Effect of Termination), and 15 (Other Important Information)
15. Other Important Information
a. Assignment. You may not assign this Agreement in whole or in part without our prior written consent. We may freely assign to a successor-in-interest of all or substantially all of our assets or voting securities, provided that such successor agrees to be bound by the terms of this Agreement. Any attempted assignment in violation of this provision will be void.
b. Entire Agreement. The Agreement is the complete and exclusive statement reflecting our mutual understanding and takes precedence over any and all previous written and oral agreements and communications. No terms contained in a purchase order or other similar document issued by you shall have any force and effect, even if we sign and return such document. If there is a conflict between these Terms and an Order Form, the terms contained in an Order Form shall control.
c. Force Majeure. Neither of us is liable to the other for any delay or failure to perform any obligation under the Agreement if the delay or failure is due to unforeseen events which are beyond the reasonable control of such party. This includes but is not limited to natural disasters, strikes, war, acts of terrorism, riots, failure or diminishment of power or telecommunications or data networks or services.
d. Governing Law. Any disputes arising out of this Agreement will be governed by and construed in accordance with the laws of the State of California, without giving effect to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. Any claim shall be brought in the federal courts for the Northern District of California or the state courts located in San Mateo, California.
e. Government End User. For purposes of the Agreement and to the extent applicable, “commercial computer software” is defined at FAR 2.101. If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation and other technical data subject to the terms of the Agreement as specified in 48 C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data) of the Federal Acquisition Regulation (“FAR“) and its successors. If acquired by or on behalf of any agency within the Department of Defense (“DOD“), the U.S. Government acquires the Services subject to the terms of the Agreement as specified in 48 C.F.R. 227.7202-3 of the DOD FAR Supplement (“DFARS“) and its successors. This Section is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses government rights in computer software or technical data.
f. Notices. Any notices under this Agreement shall be in writing and sent to the addresses identified on the Order Form and shall be deemed effective (i) if given by hand, immediately upon receipt, or (ii) if given by overnight courier service, the first business day following dispatch.
g. Relationship of Parties. Both parties acknowledge and agree that each of us is an independent contractor. There is no relationship of partnership, joint venture, employment, or agency created by the Agreement and neither party has the power to bind the other without a prior written agreement.
h. Publicity. Qwiet AI may identify Customer as a Qwiet AI customer and use Customer’s logo on Qwiet AI’s website and any digital or printed sales collateral. Qwiet AI shall not use Customer’s name or logo in any other public communications without Customer’s prior written consent.
i. Severability. If any provision of this Agreement is determined to be unenforceable or invalid, such provision will be construed to the maximum extent possible and the Agreement shall otherwise remain in effect.
j. Waiver. Failure by either of us to enforce a provision of this Agreement will not be interpreted as a waiver of any other provision. A waiver will only be effective if it is in writing signed by the waiving party.
k. Modifications. We may, from time to time, update these Terms. When we do so, we will also revise the “Last Updated” date at the top of these Terms. If Customer continues to use the Services and/or Professional Services on or after the “Last Updated” date, Customer accepts the updated Agreement.