This Agreement applies to Customer’s use of the Iceberg Cyber Risk Monitoring System (“Product” as defined below) and to the Software (as defined below), and provision of the Services to Customer. Customer’s use of the Product and the Software is conditional upon and subject to the terms and conditions of this Agreement. This Agreement forms a legally binding agreement between Customer and Iceberg Cyber Inc. (“Iceberg”). If this Agreement relates to an upgrade or an update to a previous version of a Product or Software, the terms of this Agreement shall govern all previous use of such Product or Software.
By installing the Software, or otherwise using the Product, Customer agrees to be bound by the terms of this Agreement.
Iceberg shall at all times during the term of this Agreement, retain title to and/or be the beneficial owner of the Product delivered to Customer, pursuant to this Agreement. Nothing in this Agreement shall be construed as a transfer of ownership of the Product to the Customer. Upon termination of this Agreement, the Customer shall immediately return any Hardware to Iceberg at Customer’s sole expense. Iceberg has the right to remotely disable the Hardware immediately upon termination of this Agreement and may charge the Customer a one-time penalty fee of [$150 USD] if the Hardware is not returned to Customer within 15 days of the termination of this Agreement. For so long as Iceberg’s ownership continues, Customer shall keep the Product free of any liens, security interests or other encumbrances. Customer will keep its address on file with Iceberg current.
Customer hereby acknowledges that the Product may contain the embodiment of certain trade-secrets, Intellectual Property Rights and proprietary information owned by Iceberg (the “Property”). Iceberg hereby grants and Customer hereby accepts, a non-transferable and non-exclusive license to use the Property, under terms and conditions of this Agreement. Any rights not expressly granted in this Agreement shall be reserved for Iceberg. All Intellectual Property Rights of whatever nature associated with the Product shall be and remain the exclusive property of Iceberg.
Customer is granted the non-exclusive right to use one copy of the Software on a single computer. Source code as well as any other information pertaining to the logic, design, or structure of the Software is specifically excluded from the license granted in this Agreement. Customer is not permitted to copy the Software. Customer shall not remove, cover, or otherwise alter any name or other identifying marks of the Software. Title to the Software shall at all times remain with Iceberg.
Except as otherwise expressly permitted in this Agreement Customer shall not:
Notwithstanding anything to the contrary in this Agreement, Iceberg may temporarily suspend or terminate Customer's access to or use of the Products and any portion or all of the Services if Iceberg reasonably determines that (A) there is a threat or attack on any Iceberg Property; (B) Customer's use of the Product and/or Services disrupts or poses a security risk to any Iceberg Property or to any other customer or vendor of Iceberg; (C) Customer is using the Product and/or Services for fraudulent, illegal, or otherwise unauthorized activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Iceberg's provision of the Services to Customer is prohibited by applicable law. Iceberg will not have liability for any damage, liabilities, losses (including loss of data or profits) or any other consequences that Customer may incur as a result of such a suspension of Services or termination.
The Product is protected by copyright and other intellectual property laws and by international treaties. All Intellectual Property Rights associated with the Product shall remain with Iceberg. Customer acknowledges such ownership and Intellectual Property Rights and will not take any action to jeopardize, limit or interfere in any manner with Iceberg ’s ownership of the Intellectual Property Rights in the Product. The Parties agree that all Customer Data is and shall remain proprietary to and owned by Customer. Notwithstanding the foregoing, Customer hereby expressly grants Iceberg: (a) during the Term, the right to access, use and combine (with other data, including data from third party sources) Customer Data for the purpose of: (i) carrying out its obligations pursuant to and in accordance with this Agreement; and (ii) building, developing, and improving the Services; and (b) during and after the Term, the right to access, use, combine (with other data, including data from third party sources), and disclose (to third parties) Anonymized Information derived from the Customer Data for the purpose of: (i) building, developing, and improving its products and services; (ii) creating statistical and/or benchmarking data; and (iii) preparing, delivering, and presenting “proof of concept” projects and demonstrations. For the avoidance of doubt, Anonymized Information derived from the Customer Data will not be used in any way that would identify, or could be attributable specifically to, Customer or any individual. Iceberg shall own all right, title, and interest in and to such Anonymized Information derived from the Customer Data.
Customer agrees to comply with all export laws, restrictions and regulations of Canada, the United States or foreign agencies or authorities, and not to export or re-export the Product or any direct product thereof in violation of any such restrictions, laws or regulations, or without all necessary approvals.
CUSTOMER’S USE OF THE PRODUCT AND SERVICES IS ENTIRELY AT CUSTOMER’S OWN RISK. THE PRODUCT AND SERVICES ARE PROVIDED "AS IS" AND ICEBERG HEREBY DISCLAIMS ALL CONDITIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. ICEBERG SPECIFICALLY DISCLAIMS ALL IMPLIED CONDITIONS AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. ICEBERG MAKES NO WARRANTY OF ANY KIND THAT THE PRODUCT OR SERVICES WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULT OR IN ANY WAY DETECT, STOP, PREVENT, DEFEND, REMEDIATE OR OTHERWISE PROTECT CUSTOMER FROM AND AGAINST ANY SECURITY OR CYBER VULNERABILITIES OR INCIDENTS.
Iceberg shall not be liable to Customer or any third party for any damages, whether direct, indirect, incidental, consequential or otherwise, or damages for loss of profits arising from any matter related to the Product or Services any contract breach, fundamental or otherwise or from any acts or omissions of employees of Iceberg and in no event shall Iceberg’s liability exceed the amount paid by Customer for the Product during the three (3) months preceding the date of the claim. This limitation of liability extends to any alleged liability arising under the law of contracts, torts, negligence or any legal or equitable theory whatsoever and whether or not such damages were foreseeable or if Iceberg was advised of the possibility of such damages. The terms of this Section represent a separate and independent covenant of Customer and shall survive any termination of this Agreement, howsoever caused. Customer acknowledges that Iceberg would not enter into this Agreement with Customer and would not provide the Product to Customer without this covenant.
Customer hereby covenants and agrees, at Customer’s expense, to indemnify Iceberg and to defend Iceberg and to save and hold Iceberg harmless from and against and in respect of any and all liabilities, claims, demands, causes of action, actions, losses, damages and expenses (including, without limitation, all applicable legal fees and disbursements) of every nature and kind for or in respect of or relating to Customer’s use of the Product and/or Services. Any amount for which Customer is liable under this Agreement shall be due and payable forthwith after demand therefor is made in writing to Customer. The terms of this Section represent a separate and independent covenant of Customer and shall survive any termination of this Agreement, howsoever caused. Customer acknowledges that Iceberg would not enter into this Agreement and would not provide the Product to Customer without this covenant.
Customer shall not disclose any business, technical, or financial information of Iceberg nor copy or utilize, other than in conjunction with the purposes of this Agreement any information, trade, or professional secrets of Iceberg, which shall be deemed to include the Product and the Deliverables (hereinafter “Confidential Information”). Customer will use at least the same degree of care to protect the Confidential Information of Iceberg as Customer would use to protect its own Confidential Information of a similar nature, but in no event less than reasonable care. Customer shall ensure that its employees, agents, and subcontractors observe these conditions. Confidential Information shall not include any information which: (a) was previously known to Customer if Customer can prove such prior knowledge and Customer did not learn such information from a person whom Customer knew or ought to have known was under a duty to Iceberg not to disclose the information; (b) is or becomes part of the public domain without breach of this Agreement; (c) Customer receives from an independent third party who is not under an obligation not to disclose it; (d) is independently developed by Customer as evidenced by documentation dated prior to the time of disclosure by Iceberg; or (e) is required to be disclosed pursuant to the order of a governmental agency, legislative body, or a court of competent jurisdiction, provided reasonable prior notice of the intended disclosure is provided to Iceberg.
This Agreement constitutes the entire Agreement between the parties concerning the subject-matter of this Agreement and supersedes all prior agreements, understanding and negotiations, both written and oral, between Customer and Iceberg. The parties acknowledge and agree that the terms and conditions contained in the order form (the “Order Form”), attached hereto, are an integral part of this Agreement and are incorporated herein by reference. The terms and conditions set forth in the Order Form shall prevail in the event of any conflict between the terms and conditions set forth in this Agreement and the Order Form. This Agreement shall be construed in accordance with and governed by the laws of the Province of Ontario. The United Nations Convention on the International Sale of Goods shall not apply in any respect to this Agreement. Customer may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations under this Agreement except in the case of a merger or the sale of all, or substantially all, of Customer’s assets to another entity. This Agreement shall be binding on and shall enure to the benefit of the parties, their successors and permitted assigns. Sections 5 (Restrictions), 6 (Proprietary Rights), 7 (Export Control), 9 (Representations and Warranties of Iceberg), 10 (No Other Warranties), 11 (Limitation of Liability), 12 (Indemnity), 13 (Confidentiality) 14 (Miscellaneous) and 15 (Dispute Resolution) shall survive the termination of this Agreement. This Agreement may not be added to, modified, superseded or otherwise altered except by writing signed by authorized representatives of Customer and Iceberg.
Any dispute relating to this Agreement shall be submitted to final and binding arbitration pursuant to the Arbitration Act (Ontario), provided that there shall be a single arbitrator, unless the parties to the dispute cannot agree on a single arbitrator, in which case any of the parties to the dispute may apply to a court of competent jurisdiction for the appointment of an arbitrator. Any arbitration shall be conducted in Toronto, Ontario, in the English language. The prevailing party shall be awarded its reasonable costs associated with the arbitration, including legal fees and other expenses. Notwithstanding any other provision in this section, a party to the dispute shall be able to seek interim or injunctive relief before a court of competent jurisdiction for a breach or a threatened breach of any provision of this Agreement dealing with Confidential Information or Intellectual Property Rights. For the purposes of the foregoing, each Party expressly attorns to the jurisdiction of the courts of the Province of Ontario and waives any claim or defence of inconvenient forum.