Terms Of Service

MAGENI SECURITY, LLC
MAGENI CUSTOMER AGREEMENT


This is a binding legal agreement ("Agreement") between Mageni (as defined below), and you, the party using the Services and Software ("You"). BY USING, DOWNLOADING OR INSTALLING THE SERVICE PROVIDED BY MAGENI, YOU AGREE TO BE BOUND BY THIS AGREEMENT, INCLUDING FUTURE REVISIONS AND TO USE THE SERVICE IN COMPLIANCE WITH ANY REQUIREMENTS OR POLICIES PROVIDED BY MAGENI ON ITS WEBSITE AND UPDATED FROM TIME TO TIME. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT APPLY FOR, ACCEPT, THE SERVICE(S) AND PRODUCT(S) PROVIDED BY MAGENI.

1. Definitions.

(a) "Affiliate" means any entity that controls, is controlled by, or is under common control with a party. In this context, "control" shall mean (1) ownership by one entity, directly or indirectly, of greater than fifty percent (50%) of the voting equity of another entity or (2) power of one entity to direct the management or policies of another entity, by contract or otherwise.

(b) "Asset" means any of Your systems that can be uniquely identified (including, but not limited to, a server with an IP address, CPU ID, Instance ID, Agent ID, IP Address, MAC Address, NetBIOS Name, an Asset record imported from a CMDB, a Web Application URL).

(c) "Confidential Information" means any information and/or materials that, from all the relevant circumstances, should reasonably be assumed to be confidential or proprietary. Mageni’s Confidential Information includes the Software, and structure, functionality, and organization of the Services. Your Confidential Information includes scan results compiled via the Services as well as information You import from outside sources.

(d) "Devices" means any of Your computer hardware, network, storage, input/output, or electronic control devices, and software installed on such devices.

(e) "Disclosing Party" means the party (Mageni or You) disclosing Confidential Information.

(f) "Documentation" means the associated user manuals and user documentation for the Services available at Mageni’s support portal.

(g) "Effective Date" means the date on which Mageni initially processes a valid order to purchase Your access to the Services.

(h) "Materials" means the slides, documents examples and other materials provided as part of the Professional Services.

(i) "Network Security Audits" are audits conducted to ascertain the level of compliance or non-compliance of network Devices with certain published security standards and to disclose security vulnerabilities. Network Security Audits may include port scanning and port connections, evaluating services by checking versions and responses to certain requests, and crawling websites to perform testing of forms, application responses, or to confirm the existence of certain files at the time of the audit.

(j) "PCI Scans" are scans designed to assess compliance with the Payment Card Industry Data Security Standard.

(k) "Professional Services" means start-up implementation and configuration services, security consulting services, on-site or virtual training courses, each as scoped and defined in a separate Statement of Work. "Professional Services" does not include the Services.

(l) "Professional Services Specifications" means the document produced with Your quote detailing the Professional Services to be provided.

(m) "Receiving Party" means the party (Mageni or You) receiving Confidential Information.

(n) "Services" means security services offered through the Mageni.io platform, which may include scans of Devices, domains or web applications owned by You or that You are otherwise authorized to scan, including PCI Scans and Network Security Audits. "Services" includes access to and use of applicable Software. "Services" does not include the Professional Services.

(o) "Software" means (i) each software product made available for download and installation on Your premises through the Mageni.io platform, or (ii) each software product made available for download and installation on Your premises which can be run on a stand-alone basis, not connected to the Services. Software includes patches, updates, improvements, additions, enhancements and other modifications or revised versions of the same that may be provided to You by Mageni from time to time.

(p) "Mageni" means Mageni Security, LLC., a Delaware limited liability company having offices at 110 Mamaroneck Avenue, White Plains, NY 10601

(q) "Third Party Components" means code or other intellectual property included as part of the Software that was licensed to Mageni by third parties.

2. Services.

(a) Mageni hereby grants to You and Your Affiliates a non-exclusive, non-transferable, non-sublicensable right to access and use those modules of the Services set forth on a valid invoice produced by Mageni in response to an order issued by You (each a "Mageni Invoice"). You may only use the Services for Your own internal business purposes and in accordance with the terms and conditions in this Agreement. You further agree to any additional limitations imposed on the Services (including but not limited to a restriction on the number of Assets or web applications that may be scanned), as stated in the Mageni Invoice. If You exceed Your license restrictions during the term of this Agreement, You must purchase an upgraded license to allow for all actual usage. In order to use the Software or Services, You must meet or exceed the specifications found in the Mageni General Requirements document, available at https://support.mageni.net/hc/en-us/articles/360002837674 or a successor location.

(b) You may use the Services to manage or gather information from supported software and agents not hosted by Mageni, provided that You have paid for such software and agents and have the right to access them; however, You may not use the Services to gather information from Mageni scanners.

(c) To allow Mageni to perform the Services and/or license the Software, You agree to provide certain necessary scan information, which may include license attributes, IP addresses, hostnames, account IDs, the number of Assets You are managing with the Software, or other relevant information. Mageni may use any of Your technical data (including scan data) for Mageni’s reasonable business purposes, including product support, license validation and research and development.

(d) Mageni reserves the right to withdraw features from the Services provided that: (i) the core functionality of the Services remains the same; or (ii) You are offered access to a product or service providing materially similar functionality as the functionality removed from the Services. The preceding remedies under Section 2(f)(i) or (ii) are the sole remedies available in the event that the Mageni withdraws features from the Services.

(e) Upon Your request and subsequent approval by Mageni, You may receive limited access to evaluate the Services. Such evaluation may be subject to additional terms and conditions provided by Mageni. After the evaluation period ends, You must purchase access to the Services to continue to use them. You may not use the evaluation Services to scan third party networks or to provide a service to Your customers.

3. Software.

(a) Subject to the terms and conditions of this Agreement, Mageni grants to You and Your Affiliates a non-exclusive, non-transferable license in object code form only to access and use those modules of the Software set forth on Mageni Invoice. You may only use the Software for Your own internal business purposes and in accordance with the terms and conditions in this Agreement. You agree to pay the applicable license fee (the "License Fee") as set forth on the Mageni Invoice. You further agree to any additional limitations imposed on the Software (including but not limited to a restriction on the number of Assets or web applications that may be scanned), as stated in the Mageni Invoice. Your right to install such Software is limited to use with the computers or machines for which the Software is registered for use. Any rights in Software not granted in this Agreement are expressly reserved by Mageni.

(b) You may make a reasonable number of copies of the Software provided as a virtual appliance, in whole or in part, only for backup or archival purposes or to replace a worn or defective original or copy. You may not operate in production a copy of the Software at the same time as the original or another copy.

(c) You shall not permit any (i) unauthorized parties to have access to the Software, or (ii) unauthorized copying, publication, disclosure or distribution of the Software, in whole or in part, in any form by You or any third party. You agree to notify Mageni of any unauthorized access to, or use, copying, publication, disclosure or distribution of, the Software.

(d) Any Third Party Component that is not marked as copyrighted by Mageni is subject to other license terms that are specified in the documentation available on Mageni’s website. By installing the Software, You hereby agree to be bound by such other license terms.

4. Not For Resale License.

(a) If You are a partner to whom a "Not For Resale" or "NFR" license has been granted, Your right to use the Services will commence as of the Effective Date and continue for a period of one year ("Initial Term"). After the Initial Term, Your NFR license shall automatically renew for consecutive one (1) year terms unless either party provides the other party with written notice of its non‑renewal of the NFR license at least thirty (30) days before the expiration of the then-current term. Notwithstanding the foregoing, Mageni may terminate Your NFR license for its convenience upon thirty (30) days’ notice, or immediately should You breach any obligations under this Agreement.

(b) You shall not purport to take on any obligation or responsibility, or make any representations, warranties, guarantees or endorsements to anyone on behalf of , including without limitation, relating to Mageni products, software, or services. Except as specifically permitted in this Agreement, You shall not state or imply that any of Your products have been endorsed, reviewed, certified or otherwise approved by Mageni.

(c) You hereby represent and warrant to Mageni that: (i) You will not intentionally harm the reputation or goodwill of Mageni through any act or omission, and (ii) You have used commercially reasonable efforts to ensure that any software, code, algorithm, API, etc., transferred to Mageni is free from any time bomb, virus, drop dead device, worm, Trojan horse, or trap door that is designed to delete, disable, deactivate, interfere with, or otherwise harm hardware, data, or other programs or that is intended to provide access or produce modifications not authorized by Mageni.

(d) You shall, at Your sole cost and expense, defend (or at its option, settle) and indemnify Mageni and Mageni’s subsidiaries and affiliates, and their officers, directors, employees, representatives and agents, from and against any and all third party claims brought against Mageni based upon a claim that use of Your software or Your product in accordance with this Agreement infringes such third party’s patent, copyright or trademark or misappropriates any trade secret, and shall pay all settlements entered into and damages awarded to the extent based on such claim or action.

5. Support/Service Levels.

As part of the Services, Mageni will provide You with the support plan You have purchased. Support will be provided in accordance with Mageni’s then-current Technical Support Plan document and consistent with Mageni’s Product Lifecycle Policy, each of which is available at Mageni's website or a successor location. Mageni commits to make the Services available in accordance with Mageni’s then-current service level agreement, available at Mageni's website or a successor.

6. Professional Services.

(a) Mageni may provide You with Professional Services as further described in a Statement of Work or Professional Services Specifications provided with or referenced in a quote. Subject to payment in full for the Professional Services, Mageni grants You a non-exclusive, non-transferable right to use the Materials for Your internal use and solely in conjunction with the Services. Except as otherwise agreed to by the parties in writing, all Professional Services Specifications or signed Statements of Work will be governed by this Agreement. In the event of inconsistency between this Agreement and a signed Statement of Work, the Statement of Work shall govern.

(b) If You or Your designated attendees ("Attendees") do not attend a scheduled training session or cancel a Professional Services engagement without providing proper notice, Mageni shall have no obligation to perform the Professional Services or provide a refund. You must provide Mageni at least ten (10) business days’ notice to reschedule. Mageni reserves the right to reject requests for rescheduling submitted with less than ten (10) business days’ notice. For training courses, You may substitute different individuals for scheduled Attendees provided Mageni is properly notified at least three (3) business days in advance. Mageni is not obligated to provide any services except as mutually agreed in a Professional Services Specifications or Statement of Work.

(c) For Professional Services occurring on Your site, Mageni agrees to comply, as it determines to be appropriate, with Your reasonable security procedures provided You inform Mageni of such procedures in advance. Some of the Professional Services may require You to have specialized knowledge or meet particular software or hardware requirements (for example, appropriate computers or appliances, stable Internet connection, verification of network communication paths, receipt of applicable software license keys, up-to-date web browser, operating system, etc.). You are responsible for assessing the suitability of the Professional Services. Mageni will not provide any refund based on a failure to meet prerequisites. If technical issues arise during the Professional Services, Mageni will use commercially reasonable efforts to resolve such issues, but will have no liability based on Your failure to meet technical requirements.

(d) The Professional Services will be deemed satisfactory and accepted by You unless within ten (10) calendar days after the Professional Services have been performed, You give Mageni written notice of the respects in which You believe the results do not conform to the applicable requirements. Upon confirmation by Mageni of nonconformance of the Professional Services, Mageni’s entire liability and Your exclusive remedy will be for Mageni to use its reasonable efforts to re-perform the Professional Services within a reasonable period of time; provided that if Mageni is unable to re-perform the Professional Services, Mageni may elect to refund all payments actually received by Mageni from You for the particular Professional Services deemed to be nonconforming, in full satisfaction of Mageni’s obligations.

(e) Professional Services must be scheduled within three (3) months of the date You originally ordered such Professional Services, and completed within six (6) months of the date You originally ordered such Professional Services. If You do not schedule Professional Services within this time frame, Mageni shall have no obligation to perform the Professional Services or provide a refund.

(f) For a period of one (1) year after completion of Professional Services, You will not, either directly or indirectly, employ or solicit for employment any person employed by Mageni or any of its affiliates that have provided You with Professional Services under this Agreement. For the avoidance of doubt, this restriction shall not prevent You from hiring based on a response to Your advertising in good faith to the general public a position or vacancy to which an employee or worker of Mageni responds, provided that no such advertisement shall be intended to specifically target Mageni personnel.

(g) All penetration testing services related to revalidation and retest must be performed within 90 days of the penetration test. If not, the customer waives to its rights of revalidation and retest.

7. Term.

This Agreement commences on the Effective Date and continues for the duration of the initial term agreed upon by the parties as set forth in a Mageni Invoice, or until it is terminated according to the terms of this Agreement.

8. Your Obligations.

You must provide current, accurate information in all submissions made in connection with the Services, including registration information and the location of the networks to be scanned. Mageni may, in its sole discretion, prohibit or suspend access of certain users. You agree to safeguard and maintain the confidentiality of all user names and passwords. You further agree to use Your best efforts to ensure that no unauthorized parties have access to the Services through Your account, and You will promptly notify Mageni of any unauthorized access of which You are aware. You are responsible for all use of the Services through Your account and for compliance with this Agreement; any breach by You or any user using the Services through Your account shall be deemed to have been made by You. If You gain access through the Services to any information for which You are not authorized, You must immediately destroy such information and any copies. If You provide Mageni with any comments, suggestions, or other feedback regarding the Services, You agree to assign and hereby do assign to Mageni all right, title and interest in and to such feedback.

9. Restrictions on Use.

(a) You may not do any of the following: (i) request or perform scans of networks and Devices for which You do not have the express authority to do so; (ii) request Services that will constitute any attack, hack, crack, or any other unauthorized access, malicious usage or unlawful activity; (iii) use the Services in such a way as to create an unreasonable load on Mageni systems or the Devices to which You have directed the Services to interact; (iv) rent, sell, lease, redistribute, transfer, or otherwise allow a third party to use the Services; (v) use the Services to access or reveal any personal information; (vi) sublicense, or in any other way attempt to grant or transfer to a third party, any of the rights granted to You in this Agreement; or (vii) impersonate or in any way misrepresent Your affiliation or authority to act on behalf of any entity. If You request scanning (intentionally or not) of a third party network, You agree to be fully responsible for any damages attributable to such scanning, and You further agree that Mageni may provide all relevant information to the target of such scanning as well as lawful authorities if they pursue an inquiry into such scanning, and such disclosure shall not be considered a breach of confidentiality.

(b) Except as expressly allowed herein or permitted by applicable law; You may not directly or indirectly: (i) decompile, disassemble, reverse engineer, or otherwise attempt to derive, obtain or modify the source code of the Software; (ii) reproduce, modify, translate or create derivative works of all or any part of the Software; or (iii) remove, alter or obscure any proprietary notice, labels, or marks on the Software.

(c) You may not use the Services if You: (i) are, or work for, a competitor of Mageni; (ii) have been convicted of any computer or Internet-related crime within the last five (5) years; or (iii) are located in or are a national of a place where applicable law prohibits the use of the Services or where U.S. law does not permit Mageni to perform the Services (e.g., Cuba, Iran, North Korea, Sudan, Syria).

(d) Notwithstanding the foregoing, and subject to all other terms of this Agreement, You may permit a third party (a "Third Party") to (a) use the Services to perform security services for Your business, or (b) administer the Services, each provided that: (i) any such Third Party use or administration is for Your sole benefit of and on Your behalf; (ii) You acknowledge that You shall be legally responsible for the Third Party’s use of the Services including without limitation any obligations arising from such use and any breach by the Third Party of the terms and conditions of this Agreement, including Section 10 (Confidentiality; Privacy); and (iii) if You elect to add a Third Party to Your account, only the Third Party will be permitted to contact Mageni Support (i.e., You may not contact Mageni Support directly during such time as the Third Party is providing services pursuant to this Section 9(d)). Upon sixty (60) days’ notice, Mageni shall have the right to withdraw its consent to the use of any Third Party in its reasonable discretion.

10. Confidentiality; Privacy.

(a) Confidential Information will remain the property of the Disclosing Party, and the Receiving Party will not be deemed by virtue of this Agreement or any access to the Confidential Information to have acquired any right, title or interest in or to the Confidential Information.

(b) "Confidential Information" shall not include information that (a) is already known to the Receiving Party or its affiliates, free of any obligation to keep it confidential; (b) is or becomes publicly known through no wrongful act of the Receiving Party or its affiliates; (c) is received by the Receiving Party from a third party without any restriction or confidentiality; (d) is independently developed by the Receiving Party or its affiliates without reference to the disclosing party’s Confidential Information; (e) is disclosed to third parties by the Disclosing Party without any obligation of confidentiality; or (f) the Disclosing Party designates in writing as not confidential.

(c) The Receiving Party agrees to hold the Disclosing Party’s Confidential Information in strict confidence, affording the Disclosing Party’s Confidential Information at least the same level of protection against unauthorized disclosure or use as the Receiving Party normally uses to protect its own information of a similar character, but in no event less than reasonable care. Mageni may share Confidential Information with its affiliates or authorized contractors in the performance of the Services.

(d) If the Receiving Party or any of its partners, officers, directors, employees or agents is requested or required in a legal proceeding or pursuant to legal process to disclose any Confidential Information, then the Receiving Party will use all reasonable efforts to notify the Disclosing Party promptly so that the Disclosing Party may seek any appropriate protective order and/or take any other action to prevent or limit such disclosure. If, in the absence of a protective order or the receipt of a waiver hereunder, the Receiving Party is nonetheless, in the judgment of its counsel, compelled to disclose such Confidential Information, the Receiving Party shall use all reasonable efforts to inform the Disclosing Party as far in advance of such disclosure as practicable and will furnish only that portion of the Confidential Information disclosure of which is legally required. The Receiving Party acknowledges and agrees that the breach of any term, covenant or provision of this Agreement may cause irreparable harm to the Disclosing Party and, accordingly, upon the breach by the Receiving Party of any term, covenant or provision of this Agreement, the Disclosing Party shall be entitled to injunctive relief, together with any other remedy available at law or in equity.

(e) The Receiving Party will notify the Disclosing Party promptly of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information. If You provide personal information to Mageni hereunder and You notify Mageni in writing that You have done so, Mageni agrees to use commercially reasonable efforts to protect its security.

(f) Mageni will not delete Your scan data hosted by the Services less than twelve (12) months after the scans are run; however, You acknowledge that Mageni may be obligated to maintain copies of certain of Your scans for a longer period of time for compliance purposes.

11. Warranty; Disclaimer.

(a) Mageni warrants that the Services and Software will provide in all material respects the functionality described in Mageni’s Documentation applicable to the Services purchased by You. Your sole and exclusive remedy in the event Mageni breaches this warranty shall be for Mageni to use commercially reasonable efforts to modify the Services to provide in all material respects the functionality described in Mageni’s Documentation and, if Mageni is unable to restore such functionality within sixty (60) days, You shall be entitled to terminate the Agreement and receive a pro-rata refund of any prepaid subscription fees for Your use of the nonconforming Services for the terminated portion of the term. Mageni shall have no obligation with respect to a warranty claim unless You notify Mageni of such claim within thirty (30) days of the date the underlying condition first arose, and such notice must be sent in accordance with Section 22. The warranties set forth in this Section are made to You and for Your benefit only. All warranties shall only apply if the applicable Service has been utilized in accordance with this Agreement and the Documentation.

(b) EXCEPT AS EXPRESSLY STATED IN SECTION 11(a), Mageni MAKES NO OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY, INTEGRATION, PERFORMANCE AND ACCURACY, AND ANY IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. YOUR USE OF THE SERVICES IS AT YOUR OWN RISK. YOU UNDERSTAND THAT ASSESSING NETWORK SECURITY IS A COMPLEX PROCEDURE, AND Mageni DOES NOT GUARANTEE THAT THE RESULTS OF THE SERVICES WILL BE ERROR-FREE OR PROVIDE A COMPLETE AND ACCURATE PICTURE OF YOUR SECURITY FLAWS, AND YOU AGREE NOT TO RELY SOLELY ON SUCH SERVICES IN DEVELOPING YOUR SECURITY STRATEGY. Mageni MAKES NO GUARANTEE THAT A SUCCESSFUL COMPLETION OF A Mageni PCI SCAN WILL MAKE YOU COMPLIANT WITH THE PAYMENT CARD INDUSTRY DATA SECURITY STANDARD. YOU ACKNOWLEDGE THAT THE SERVICES MAY RESULT IN LOSS OF SERVICE OR OTHER IMPACT TO NETWORKS OR COMPUTERS, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGES RELATING TO SUCH LOSS OR IMPACT.

12. Limitation of Liability.

IF YOU SHOULD BECOME ENTITLED TO CLAIM DAMAGES FROM Mageni (INCLUDING FOR NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT, MISREPRESENTATION AND OTHER CONTRACT OR TORT CLAIMS) Mageni WILL BE LIABLE ONLY FOR THE AMOUNT OF YOUR ACTUAL DIRECT DAMAGES, NOT TO EXCEED (IN THE AGGREGATE FOR ALL CLAIMS) THE FEES YOU PAID TO Mageni FOR THE NONCONFORMING SERVICES OVER THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.

13. Exclusion of Other Damages.

UNDER NO CIRCUMSTANCES WILL MAGENI BE LIABLE FOR ANY DAMAGES RESULTING FROM LOSS OF DATA, SECURITY BREACH, PROPERTY DAMAGE, FOR ANY LOST PROFITS, LOSS OF REVENUE, LOSS OF BUSINESS OR LOST SAVINGS, OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, WHETHER OR NOT Mageni HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU ARE SOLELY RESPONSIBLE AND LIABLE FOR VERIFYING THE SECURITY, ACCURACY AND ADEQUACY OF ANY OUTPUT FROM THE SERVICES, AND FOR ANY RELIANCE THEREON.

14. Intellectual Property Infringement Indemnification.

(a) Mageni shall, at its sole cost and expense, defend (or at its option, settle) and indemnify You and Your subsidiaries and affiliates, and their officers, directors, employees, representatives and agents, from and against any and all finally awarded third party claims brought against You based upon a claim that Your use of the Services in accordance with this Agreement infringes such third party’s United States patent issued as of the Effective Date, copyright or trademark or misappropriates any trade secret, and shall pay all settlements entered into and damages awarded to the extent based on such claim or action, provided that You (i) provide Mageni prompt notice of such action or claim; (ii) give Mageni the right to control and direct the investigation, defense, and/or settlement of such action or claim; and (iii) reasonably cooperate.

(b) If Your use of the Services is, or in Mageni’s opinion is likely to be, the subject of an infringement claim, or if required by settlement, Mageni may, in its sole discretion and expense, (i) modify or replace the Services as necessary to avoid infringement, provided that the replacement services will be substantially functionally similar; (ii) procure for You the right to continue using the Services; or (iii) terminate this Agreement and provide a pro rata refund to You of prepaid subscription fees applicable to the terminated portion of the term.

(c) Mageni has no liability with respect to patent, copyright or trademark infringement or trade secret misappropriation described in Section 14(a) arising out of: (i) modifications of the Services made to Your order or specification, or not made by Mageni or any party under its control; (ii) Your use of the Services in combination with other services, software or equipment if such combination or other software or equipment gives rise to the infringement; (iii) Your failure to use any new or corrected versions of the Services made available by Mageni; or (iv) Your use of the Services in a manner not permitted by this Agreement. Except as expressly stated in this Section 14, Mageni does not indemnify You against any claims made against You by others as a result of Your use of the Services.

(d) This Section 14 sets forth Mageni’s sole liability and Your sole and exclusive remedy with respect to any claim of intellectual property infringement.

15. Indemnification.

You agree to indemnify, defend and hold harmless Mageni, its officers, directors, employees, agents, suppliers, licensors, affiliates, and other related parties from and against all costs, expenses (including reasonable attorneys’ fees), losses, liabilities and damages arising out of or related to: (i) any violation of Your obligations under Section 9 of this Agreement; (ii) Your use of Services, except to the extent that the damages arise from the Services’ material failure to comply with the Documentation; or (iii) Your use or application of the information obtained from the Services.

16. Your Payment Obligations.

You agree to pay all amounts due or incurred by You, as specified in any Mageni Invoice or any other invoice or ecommerce transaction provided by Mageni or its reseller in consideration for Your use of the Services. Fees are charged for access to the Services and/or Software, not actual usage. Unless otherwise agreed to in writing or as detailed in a signed Statement of Work, payment for Professional Services is due within thirty (30) days from the Order Date. You agree to pay for actual travel and living expenses for Professional Services where Mageni is conducting on-site work. Payment for travel and living expenses is due thirty (30) days from the date You receive a Mageni Invoice. You agree to pay directly or reimburse Mageni or its reseller for any taxes (including, sales or excise taxes, value added taxes, gross receipt taxes, landing fees, import duties and the like), however designated and whether foreign or domestic, imposed on or arising out of this Agreement or Your use of the Services. Notwithstanding the foregoing, Mageni will be solely responsible for its income tax obligations and all employer reporting and payment obligations with respect to its personnel. You agree to pay Mageni or its reseller without deducting any present or future taxes, withholdings or other charges except those deductions it is legally required to make. If You are legally required to make any deductions or withholding, You agree to provide evidence of such withholding upon request. You agree to pay any interest and penalties imposed by any taxing authorities to the extent such interest and penalties are applicable to taxes not paid at Your request or as a result of reliance by Mageni on Your representations. If a certificate of exemption or similar document or proceeding is necessary in order to exempt any transaction from a tax, You will obtain such certificate or document.

17. Legal Compliance; Restricted Rights.

The Services are provided solely for lawful purposes and use. You agree to perform Your obligations in a manner that complies with all applicable national, federal, state and local laws, statutes, ordinances, regulations, codes and other types of government authority (including those governing unfair competition, anti-discrimination, false advertising, privacy and data protection, and publicity and those identifying and requiring permits, licenses, approvals, and other consents) ("Laws"). If a charge is made that You are not complying with any such Laws, You will promptly notify Mageni of such charges in writing. Without limiting the foregoing, You agree to comply with all U.S. computer security laws, including, without limitation, the Computer Fraud and Abuse Act ("CFAA"), 18 USC Sec. 1030. You also agree to comply with all U.S. export laws (including the International Traffic in Arms Regulation ("ITAR"), 22 CFR 120-130, and the Export Administration Regulation ("EAR"), 15 CFR Parts 730 et seq.) and applicable export Laws of Your locality (if You are not in the United States), to ensure that no information or technical data provided pursuant to this Agreement is exported or re-exported directly or indirectly in violation of law or without first obtaining all required authorizations or licenses. You agree that You will be the exporter of record any time You cause the Services to be accessed outside the United States or by a national of any country other than the United States. You will, at Your sole cost and expense, obtain and maintain in effect all permits, licenses, approvals and other consents related to Your obligations under this Agreement. You agree, at Your expense, to comply with all foreign exchange and other Laws applicable to You. The Software (1) was developed solely at private expense, (2) contains "restricted computer software" submitted with restricted rights in accordance with FAR 52.227-19 Commercial Computer Software–Restricted Rights (June 1987) sections (a) through (d) and its successors, and (3) in all respects is proprietary data belonging to Mageni, its affiliates or their licensors or suppliers. For Department of Defense units, the Software is considered commercial computer software in accordance with DFARS section 227.7202-3 and its successors, and use, duplication or disclosure by the U.S. Government is subject to restrictions set forth in this Agreement. The parties further agree to comply with sanctions administered by the Department of Treasury’s Office of Foreign Assets Control ("OFAC") and shall not engage in prohibited trade to persons or entities on the Specially Designated Nationals ("SDN") list.

18. Termination.

You may terminate this Agreement at any time by stopping use of the Services and providing notice in writing to Mageni; provided, however, such termination shall not relieve You of any payment obligations incurred up to the date of termination. Mageni may terminate this Agreement and Your access to the Services upon thirty (30) days’ notice if You fail to materially comply with any term or condition of this Agreement. Immediately after the expiration or termination of this Agreement, You shall remove any copies of the Software and, upon Mageni’s request, You shall certify to Mageni in writing that through Your best efforts and to the best of Your knowledge all such materials have been returned to Mageni and removed from host computers on which Software resided. Notwithstanding the foregoing, Mageni may terminate this Agreement immediately upon notice if You breach Sections 8, 9, 10 or 17.

19. Governing Law.

This Agreement shall be governed in all respects by the laws of the State of Delaware, USA, without regard to choice-of-law rules or principles. You expressly agree with Mageni that this Agreement shall not be governed by the U.N. Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

20. Dispute Resolution.

You and Mageni submit to the exclusive jurisdiction of the courts of Delaware, and the United States District Court for Delaware for any question or dispute arising out of or relating to this Agreement. Due to the high costs and time involved in commercial litigation before a jury, the parties waive all right to a jury trial with respect to any issues in any action or proceeding arising out of or related to this Agreement.

21. Modification of Terms.

Except as otherwise provided in this Agreement, You agree, during the term of this Agreement, that Mageni may: (a) revise the terms and conditions of this Agreement; and/or (b) change part of the Services provided under this Agreement at any time. Any such revision or change will be binding and effective thirty (30) days after posting of the revised Agreement or change to the Service on Mageni's website, or upon notification to You by e-mail. You agree to periodically review Mageni’s website, including the current version of this Agreement, to be aware of any such revisions. If You do not agree with any revision to the Agreement, You shall immediately cease using the Service or Reports. By continuing to the Service after any revision to this Agreement or change in Service, You agree to abide by and be bound by any such revisions or changes.

22. Notices.

Any notices or other communication to Mageni pursuant to this Agreement must be in writing, in English, and will be deemed to have been duly given when delivered if delivered personally or sent by recognized overnight express courier. All notices to Mageni must be sent to the address described in this Agreement to the attention of the Legal Department (unless otherwise specified by Mageni). All notices to You may be sent to the physical address referenced in this Agreement or otherwise provided to Mageni, or the email address You provided during registration.

23. Assignment.

You may not assign or otherwise transfer this Agreement without Mageni’s prior written consent, which will not be unreasonably withheld.

24. General.

This Agreement constitutes the entire agreement between the parties, and supersedes all other prior or contemporaneous communications between the parties (whether written or oral) relating to the subject matter of this Agreement. No purchase order shall modify, supersede, or become part of this Agreement, or otherwise contractually bind Mageni. The provisions of this Agreement will be deemed severable, and the unenforceability of any one or more provisions will not affect the enforceability of any other provisions. Section headings are for convenience only and shall not be considered in the interpretation of this Agreement. In addition, if any provision of this Agreement, for any reason, is declared to be unenforceable, the parties will substitute an enforceable provision that, to the maximum extent possible under applicable law, preserves the original intentions and economic positions of the parties. You agree that Mageni may use Your name or logo in a customer list. Neither party shall be liable for any loss or delay (including failure to meet the service level commitment) resulting from any force majeure event, including, but not limited to, acts of God, fire, natural disaster, terrorism, labor stoppage, Internet service provider failures or delays, civil unrest, war or military hostilities, criminal acts of third parties, and any payment date or delivery date shall be extended to the extent of any delay resulting from any force majeure event. No failure or delay by a party in exercising any right, power or remedy will operate as a waiver of that right, power or remedy, and no waiver will be effective unless it is in writing and signed by the waiving party. If a party waives any right, power or remedy, the waiver will not waive any successive or other right, power or remedy the party may have under this Agreement. The parties are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between the parties. Any provision of this Agreement that imposes or contemplates continuing obligations on a party will survive the expiration or termination of this Agreement. "Including" and its derivatives (such as "include" and "includes") mean including without limitation; this term is as defined, whether or not capitalized in this Agreement.

25. Language.

The language of this Agreement is English and all invoices and other documents given under this Agreement must be in English to be effective. No translation, if any, of this Agreement or any notice will be of any effect in the interpretation of this Agreement or in determining the intent of the parties. The parties have expressly agreed that all invoices and related documents be drafted in English.

26. Third Parties.

This Agreement is not intended nor will it be interpreted to confer any benefit, right or privilege in any person or entity not a party to this Agreement. Any party who is not a party to this Agreement has no right under any law to enforce any term of this Agreement.

27. Government Entities.

(a) If You are prohibited by law, regulation, or relevant attorney general opinion from (collectively, "Restrictions"), the following sections shall be modified to the extent necessary to allow You to comply with such Restrictions:

(b) Section 4 (Not For Resale License) shall be deleted in its entirety and You may not be granted a license on a Not For Resale basis.

(c) Section 10 (Confidentiality; Privacy) may be amended to comply with any public records statute with which You are bound to comply.

(d) Section 15 (Indemnification) may be deleted in its entirety.

(e) Section 19 (Governing Law) may be modified to remove reference to a specific jurisdiction’s laws, but the parties’ agreement to reject from application the Uniform Computer Information Transactions Act, and the U.N. Convention on Contracts for the International Sale of Goods, shall remain.

(f) Section 20 (Dispute Resolution) may be modified to remove (i) reference to venue in a specific jurisdiction, and/or (ii) the waiver of a jury trial.

28. Scanning Indemnity.

(a) You represent and warrant that you have full right, power, and authority to consent to have the Service scan for malware or other vulnerabilities of the Site identified to Mageni for scanning, whether electronically or by any other means, whether during initial Registration or thereafter. You will indemnify and hold harmless Mageni, its Authorized Resellers, partners and sponsors, and their officers, directors, employees and agents from and against any third-party claims, suits, liabilities, losses, damages, judgments, awards, fines, penalties, costs and expenses (including reasonable attorneys’ fees) incurred by or levied against the same resulting from or based on Your use of or inability to use the Service, including any claim resulting from Your breach of this Section 9 and 17.

(b) You also acknowledge and agree that the vulnerability scanning may expose malware and other vulnerabilities and in some circumstances could result in the disruption of services of the targets and assets being scanned. Due to the nature of scanning, You acknowledge and agree that the Service involves substantial risk and as a consequence, You assume the risk for all damages, losses and expenses resulting from Your use of the Service.

Effective Date: January 13, 2018