This Software as a Service (SaaS) Subscription Agreement is a binding agreement made between TechGraphOnline and you, the Licensee (“You”, “Your”, “Licensee”, or “Customer”), and governs Your use, under license, of certain TechGraphOnline software and access to certain TechGraphOnline services according to the terms and conditions set forth below. All components, or terms and conditions, contained in this Agreement are integral to the Agreement and Licensee consents to all of these terms and conditions. All components of this Agreement collectively are referred to herein as the “Agreement”. Licensee acknowledges it has had the opportunity both to review the Agreement and to consult with legal counsel prior to acceptance of this Agreement. By accessing or using the Software and Services, You acknowledge that You have read and understand this Agreement, that You accept all of the terms and conditions contained here in full, and that You agree that the terms and conditions shall be fully and legally binding upon the Parties, without the need for any further indication of acceptance on Your part (such as by signature, click through, or other means of electronic acceptance). If You are acting on behalf of a Licensee, You represent that You have full legal authority to bind the Licensee. TechGraphOnline recommends that Licensee print copies of the Agreement for Licensee’s own records and future reference.If You choose not to agree to all of these terms and conditions, do not access and/or use the TechGraphOnline Software or Services. Your access and/or use of the TechGraphOnline Software or Services shall constitute Your acceptance of all of the terms and conditions set forth in this Agreement.

This Agreement is effective immediately upon Your completion of the Customer Subscription Form (“Effective Date”).

1. Definitions
   
   • “Affiliate” shall mean any entity that directly or indirectly controls, is controlled by, or is under common control with the entity named above.
   • “Agreement” shall mean this Software as a Service (SaaS) Subscription Agreement and any exhibits, schedules, addenda, and associated Customer Subscription Forms related hereto or otherwise submitted to TechGraphOnline in connection with the Software or Services.
   • “Customer” shall mean the Licensee under this Agreement which has submitted a Customer Subscription Form in connection with the Software or Services.
   • “Customer Data” shall mean electronic data and information submitted by or for Customer for the Services.
   • “Data Schema” shall mean TechGraphOnline’s representation of relevant inventory information, vulnerability information, threat information, risk weighting factors, and all other data and its structure used by the Software.
   • “Documentation” shall mean the Reference Manual.
   • “Customer Subscription Form” shall mean an online order specifying the Software or Services to be provided hereunder that is entered into between TechGraphOnline and Licensee or otherwise submitted by Licensee to TechGraphOnline. By submitting or entering into a Customer Subscription Form, Customer agrees such Customer Subscription Form shall be considered part of this Agreement and further agrees to be bound by all the terms and conditions of this Agreement.
   • “Services” shall mean the services which TechGraphOnline agrees to provide under this Agreement that are ordered by Customer through an online Customer Subscription Form, namely access to the Software.
   • “Software” shall mean the TechGraphOnline proprietary set of instructions that are executed by a machine, including (without limitation) subsequent updates, enhancements, modifications, and releases of the same, as well as third party software added to or used in connection with the foregoing; and, all related components, templates, features, enhancements, modifications, data, and related files that is used by TechGraphOnline to perform the Services.
   • “TechGraphOnline Materials” shall mean any software programs, tools, systems, data, or other materials made available by TechGraphOnline to Customer in the course of the performance of the Services, including but not limited to, the Software, Documentation, as well as any information, materials, or feedback provided by the Customer to TechGraphOnline relating to the Software, Documentation, Data Schema, and Content Package.
   • “Web Services Account” or “WSA” shall mean a cloud based account which Licensee maintains at one of the TechGraphOnline authorized cloud computing platform web hosting service providers which hosts the TechGraphOnline Software which Licensee accesses and uses under this Agreement.
   • “WSA Provider” shall mean the entity providing the WSA.
2. SaaS Services and Support
   • 2.1    Subject to the terms of this Agreement, TechGraphOnline will use commercially reasonable efforts to provide Customer the Services in accordance with the Customer Subscription Form. As part of the ordering process, Customer will identify an administrative username and password for Customer’s account.
   • 2.2    Subject to the terms of this Agreement, TechGraphOnline will provide Customer with reasonable technical support.
3. Restrictions and Responsibilities
   • 3.1    Customer will not make any Service or Software available to, or use any Service or Software for the benefit of, anyone other than Customer, unless expressly stated otherwise in a Customer Subscription Form. Customer will not sell, resell, license, sublicense, distribute, make available, rent, or lease any Service or Software, or use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party.
   • 3.2    Customer will not directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any TechGraphOnline Materials; modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by TechGraphOnline or authorized within the Services); or remove any proprietary notices or labels.
   • 3.3    Customer will not use a Service or Software to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights.
   • 3.4    This Agreement is subject to and conditioned upon compliance with the U.S. Export Administration Regulations, the International Traffic of Arms Regulations, country specific economic sanctions programs implemented by the Office of Foreign Assets Control, and the applicable regulations thereunder (collectively, the “U.S. Export Laws”). Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control or any other United States or foreign agency or authority. For clarity, the Customer shall be solely responsible for compliance related to the manner in or by which the Customer chooses to use the Services and Software, including the transfer and processing of any content, the provision of Customer’s content to end users, and the online region in which any of the foregoing occurs.
   • 3.5    Customer represents, covenants, and warrants that Customer will use the Services only in compliance with all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless TechGraphOnline against any damages, losses, liabilities, settlements, and expenses (including, without limitation, costs and attorney’s fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of the Services. Although TechGraphOnline has no obligation to monitor Customer’s use of the Services, TechGraphOnline may do so, and Customer hereby authorizes TechGraphOnline to do so. TechGraphOnline may prohibit any use of the Services it believes may be (or is alleged to be) in violation of the foregoing.
   • 3.6    Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including without limitation, hardware, software, networking, WSA and the like. Customer shall also be responsible for maintaining the security of Customer’s account, passwords, and files and for all uses of Customer’s account with or without Customer’s knowledge or consent, and Customer hereby acknowledges and agrees that TechGraphOnline shall have no responsibility for such matters.
   • 3.7    Customer owns and accepts all responsibility for any data, information, or material that Customer and its users process or submit to the Service in the course of using the Service, including any personally identifiable information (Customer Data). Customer agrees to separately back up all Customer Data. Customer at all times retains ownership of all Customer Data. Customer, and not TechGraphOnline, shall have sole responsibility for the accuracy, quality, security, integrity, legality, reliability, appropriateness, and intellectual property rights in all Customer Data. Customer is solely responsible for ensuring that any processing of Customer Data by TechGraphOnline and Customer via the Service is in compliance with all applicable laws. Customer shall provide notices to, and obtain any consents from, third pirates as required by applicable law, rule, or regulation in connection with TechGraphOnline’s processing of Customer Data via the Service. Customer shall not process or submit to the Service any Customer Data that includes any “protected health information,” as defined under the Health Insurance Portability and Accountability Act, or Sensitive Personal Data as defined under the EU Directive 95/46/EC as enacted in the member states of the European Union or any similar or subsequent regulation.
4. Confidentiality and Proprietary Rights
   • 4.1    Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of TechGraphOnline includes non-public information regarding features, functionality and performance of the Services. Proprietary Information of Customer includes non-public data provided by Customer to TechGraphOnline to enable the provision of the Services (“Customer Data”). The Receiving Party agrees (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. Proprietary Information does not include any information after 3 years following disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party, or (e) is required to be disclosed by law.
   • 4.2    Customer acknowledges and agrees that the TechGraphOnline Materials are and shall at all times be and remain the sole and exclusive property of TechGraphOnline and TechGraphOnline’s third party licensors, subject only to the ownership rights of such third parties in portions of the Software and the rights granted to Customer in this Agreement. TechGraphOnline retains all right, title, and interest in and to the TechGraphOnline Materials. Customer does not and will not be deemed to acquire any right, title or interest therein, except as expressly granted in this Agreement. Further, Customer does not and will not be deemed to acquire any right, title, or interest in any patent(s), copyrighted material, or other intellectual property, or proprietary information or data, owned by TechGraphOnline and/or any of its subsidiaries or affiliates.
   • 4.3    TechGraphOnline provides the Services, including related Software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 and FAR 12.212, and for Department of Defense transactions, DFAR 252.227-7015 and DFAR 227.7202-3.
   • 4.4    Customer shall own all right, title, and interest in and to the Customer Data as well as any data that is derived from the Customer Data and provided to Customer as part of the Services.
   • 4.5    Notwithstanding anything to the contrary, TechGraphOnline shall have the right to collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Services and related systems and technologies (including, without limitation), information concerning Customer Data and data derived therefrom), and TechGraphOnline will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic, and corrective purposes in connection with the Services and other TechGraphOnline offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth in this Agreement.
5. Payment of Fees
   • 5.1    Customer and TechGraphOnline acknowledge and agree that payment of fees or other sums due to TechGraphOnline in connection with this Agreement will be handled or coordinated by or through the WSA Provider. Customer will pay WSA Provider the then applicable fees described in the Customer Subscription Form for the Services in accordance with the terms therein (“Fees”). If Customer’s use of the Services exceeds the Service capacity selected by the Customer as set forth on the Customer Subscription Form or otherwise requires the payment of additional fees, Customer shall be notified and will have the opportunity to acknowledge the need for Service capacity to be increased. WSA Provider will bill for such increased usage and Customer agrees to pay the additional fees in the manner provided herein or as otherwise described to Customer. If Customer acknowledgement is not received within 72 hours of notification, TechGraphOnline shall have the right to suspend Services. TechGraphOnline reserves the right to change Fees or applicable charges and to institute new charges and Fees at the end of the initial service term or then-current renewal term, upon thirty (30) days prior notice to Customer, and Customer’s continued use of TechGraphOnline’s Services shall be deemed acceptance of such changes to the charged Fees or applicable charges. If Customer believes that WSA Provider has billed Customer incorrectly, Customer must contact WSA Provider, as applicable, no later than 60 days after the closing date on the first invoice in which the error or problem appeared, in order to receive an adjustment or credit, and WSA Provider shall not be responsible for any errors in billing not bright to its attention in accordance with this provision. Inquiries should be directed to WSA Provider’s customer support department.
6. Term and Termination
   • 6.1    This Agreement commences on the Effective Date and continues until all Services hereunder have expired or have been terminated.
   • 6.2    The term of this Agreement and each Service shall be specified in the applicable Customer Subscription Form. Unless otherwise specified in the Customer Subscription Form, Services will be for an initial term of one year. The Customer may be provided an opportunity on the Customer Subscription Form to automatically renew the Agreement for additional one year periods.
   • 6.3    Either party may also terminate this Agreement upon 30 days written notice if the other party materially breaches any of the terms or conditions of the Agreement and fails to correct the breach within the notice period. Customer will pay in full for the Services up to and including the last day on which the Services are performed.
   • 6.4    Upon any termination and upon Customer request, TechGraphOnline will make all Customer Data available to Customer for electronic retrieval for a period of 30 days, but thereafter TechGraphOnline may delete or destroy all copies of Customer data in its systems or otherwise in its possession or control.
   • 6.5    The following sections will survive any termination or expiration of this agreement: 3.2, 3.7, 4, 5, 6, 7, 8, and 9.
7. Warranty and Disclaimer
   • 7.1    TechGraphOnline shall use reasonable efforts consistent with prevailing industry standards to provide and maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Services in a professional and workmanlike manner. Customer acknowledges that the Services may be temporarily unavailable due to scheduled maintenance or for unscheduled emergency maintenance, either by TechGraphOnline or by third-party providers, or because of other causes beyond TechGraphOnline’s reasonable control. Where reasonably possible, TechGraphOnline shall use reasonable efforts to provide advance notice in writing or by e-mail or any scheduled service disruption.
   • 7.2    TECHGRAPHONLINE DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES TECHGRAPHONLINE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES ARE PROVIDED “AS IS” AND TECHGRAPHONLINE DISCLAIMS ALL WARRANTIES OF ANY TYPE, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
8. Limitation of Liability and Limitation on Damages
   • IN NO EVENT SHALL TECHGRAPHONLINE, ITS SUPPLIERS, OR THE WSA PROVIDER BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF GOOD WILL, LOSS OF DATA OR USE, OR ANY BUSINESS INTERRUPTION OR DISRUPTION INCURRED BY EITHER CUSTOMER OR ANY THIRD PARTY, WHETHER IN AN ACTION SOUNDING IN CONTRACT, TORT, WARRANTY, FIDUCIARY DUTY, STATUTORY CLAIM UNDER ANY FEDERAL, STATE, LOCAL LAW OF THE UNITED STATES OF AMERICA OR ANY OTHER JURISDICTION, OR ANY OTHER TYPE OF LEGAL CLAIM, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
   • FURTHER, NEITHER TECHGRAPHONLINE NOR ANY OF ITS AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, LOSSES, COSTS, OR DAMAGES ARISING IN CONNECTION WITH: (A) CUSTOMER’S INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR CUSTOMER’S USE OF OR ACCESS TO THE SERVICES, (II) TECHGRAPHONLINE’S DISCONTINUATION OF ANY OR ALL ACCESS TO THE SERVICES, OR (III) ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE ACCESS TO THE SERVICES FOR ANY REASON WHATSOEVER, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES, OR OTHER INTERRUPTIONS; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY CUSTOMER TO ANY THIRD PARTIES IN CONNECTION WITH THIS AGREEMENT OR CUSTOMER’S USE OF OR ACCESS TO THE SERVICES; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS, DENIAL OF ACCESS, OR FAILURE TO MAINTAIN OR STORE ANY OF CUSTOMER’S CONTENT OR OTHER DATA.
   • THE AGGREGATE AND CUMULATIVE TOTAL LIABILITY OF TECHGRAPHONLINE, ITS SUPPLIERS, AND/OR THE WSA PROVIDER FOR DAMAGES, INCLUDING FOR DIRECT DAMAGES, UNDER THIS AGREEMENT SHALL IN NO EVEN EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER UNDER THIS AGREEMENT THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS PRECEDING THE CLAIM, AND IF SUCH DAMAGES RELATE TO PARTICULAR SERVICES, SUCH LIABILITY SHALL BE LIMITED TO FEES PAID FOR THE SERVICES GIVING RISE OR RELATED TO THE ALLEGED LIABILITY AND DAMAGES UNDER THIS AGREEMENT DURING THE 12 MONTHS PRECEDING THE CLAIM.
   • LICENSEE ACKNOWLEDGES THAT THE FEES APPLICABLE FOR THE SERVICES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT TECHGRAPHONLINE WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THE DISCLAIMERS OF WARRANTY AND LIMITATIONS OF BOTH LIABILITY AND DAMAGES SET FORTH IN THIS AGREEMENT (INCLUDING THOSE SET FORTH ABOVE IN THIS SECTION 8 AND IN SECTION 9.2 BELOW).
9. Miscellaneous
   • 9.1    This Agreement and the associated Customer Subscription Forms shall not be assignable by Customer without the prior, written consent of TechGraphOnline. Any assignment or transfer by Customer in violation of this Section will be void. This Agreement may be assigned or transferred by TechGraphOnline.
   • 9.2    No Liability for Certain Delays or Failures of Performance. TechGraphOnline and its affiliates will not be liable for any delay or failure to perform any obligation under this Agreement where the delay of failure results from any cause beyond its reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms, floods, or other elements of nature, blockages, embargoes, riots, cyber attacks (including without limitation distributed denial of service attacks, malware, ransomware, and any other cyber events), acts or orders of government, acts of terrorism, or war.
   • 9.3    If any term or provision of this Agreement shall be determined by a court of competent jurisdiction to be invalid, the remaining terms and provisions shall remain in effect.
   • 9.4    TechGraphOnline may modify this Agreement at any time by posting a revised version on its website and/or the WSA Provider’s website or by otherwise notifying the Customer in accordance with Section 9.5. The modified terms will become effective upon posting or, if TechGraphOnline notifies the Customer by email, as stated in the email message. By continuing to use the Services after the effective date of any modifications to this Agreement, Customer agrees to be bound by the modified terms. It is the Customer’s responsibility to check the TechGraphOnline website regularly for modifications to this Agreement. The current Agreement and Customer Subscription Form, with priority being given to the Customer Subscription Form, shall prevail over any additional, conflicting, or inconsistent terms and conditions which may appear on any purchase order or other document furnished by Customer to TechGraphOnline.
   • 9.5    Any notice, report, or statement required to be given or made hereunder shall be considered properly given if sent by email, or registered or certified mail, return receipt requested, postage-paid to the respective address of each party as either of the parties shall have last furnished in writing to the other.
   • 9.6    Customer will not, without TechGraphOnline’s express prior written permission, use any trade name, trademark, or other identification (or any abbreviation, contraction, or simulation thereof) owned or used by TechGraphOnline in any advertising, publicity, or marketing.
   • 9.7    This Agreement shall be construed in accordance with the laws of the State of California without reference to conflict of law rules. The United Nations Convention for the International Sale of Goods does not apply to this Agreement.
   • 9.8    Binding Arbitration, Waiver of Right of Jury Trial, and Waiver of Rights of Class, Consolidated, or Representative Actions. Any dispute or claim relating in any way to the Customer’s use of the Services will be resolved by binding arbitration, rather than in court, except that Customer may assert claims in small claims court if the claims qualify. The Federal Arbitration Act and federal arbitration law apply to this Agreement. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would. To begin an arbitration proceeding, Customer must send a letter requisition arbitration with a description of the claim to the TechGraphOnline registered agent. The arbitration will be conducted by the American Arbitration Association (AAA) under its rules, which are available at www.adr.org or by calling 1-800-778-7879, or such alternative arbitration rules to which the parties may agree. Payment of filing, administration and arbitrator fees will be governed by the AAA’s rules or as the parties may agree. TechGraphOnline will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. TechGraphOnline will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous. The parties may agree to have the arbitration conducted by telephone, based on written submissions, or at a mutually agreed location. The parties agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated, or representative action. If for any reason a claim proceeds in court rather than in arbitration, the parties hereby waive any right to a jury trial and Customer hereby acknowledges that this waiver constitutes a relinquishment of any important right and that such waiver is provided freely, knowingly, and voluntarily. Subject to Section 4, the parties agree that either may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
   • 9.9    This Agreement and any exhibits, attachments, or other documents related thereto (including any related Customer Subscription Form) constitute the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all previous agreements whether written or oral.

Last Updated: June 3, 2022