This Clickwrap Agreement (“Agreement”) is between NetSPI, LLC (“we,” “us” or “NetSPI”) and the person or entity granted access to the NetSPI Platform (“Platform”) by NetSPI (“you,” or “Client”). The effective date of this Agreement shall be the earlier of the date that you click to accept this Agreement or otherwise first access the Platform (“Effective Date”). You must read and accept this Agreement by clicking “accept” where indicated prior to use of the Platform. If you somehow bypass the “accept” feature and begin using the Platform, or if you are using another User’s Credentials to access and use the Platform, your act of using the Platform constitutes acceptance of the terms of this Agreement. If you do not agree with all terms of this Agreement, click “reject” where indicated and do not access or use the Platform.

1. License to Platform.  
   1. NetSPI grants Client for the Term (as defined in Section 17.a) a limited, nonexclusive, nontransferable United States license to access the Platform solely for the purpose of reviewing the results of information security assessment and testing services (“Results”) performed by NetSPI for Client.
   2. Client may permit its employees who agree to be bound by this Agreement and who have been issued credentials to access it by NetSPI or by the Client’s Administrator, as defined below (“Users”) to use the Platform, subject to the terms and conditions of this Agreement.
   3. NetSPI reserves all rights to the Platform and any information posted or maintained on the Platform not expressly granted to Client by this Agreement, whether under patent, copyright, trade secret, trademark, or unfair competition law or other similar protections, and whether or not such rights are registered or perfected (the “Intellectual Property Rights”).
   
   
2. Access and Maintenance. NetSPI will maintain the Platform on a cloud instance of NetSPI. NetSPI shall provide a link and login credentials to the Administrator, as defined below. Client is responsible for all hardware, software, equipment and bandwidth (e.g., ISP, telecom) needed to access or use the Platform (the “Client Systems”). Client shall be solely responsible for administering its Users’ access to and use of the Platform. Client shall designate no more than two individuals (collectively, the “Administrator”) to be the primary Client contact with NetSPI and to administer all Users’ access to and use of the Platform.
   


3. Restrictions. Client will not (and will ensure that its Users do not) use the Platform or the Results for any purpose not specifically permitted by Section 1.a above, including (but not limited to) the following:
1. Renting, leasing, loaning, selling, copying, modifying, merging, redistributing, assigning, or transferring any portion of the Platform or Results;
2. Using resources other than the Client Systems to access the Platform;
3. Permitting any person other than a User to access or use the Platform;
4. Emulating the functionality or creating derivative works of the Platform or the Results, or otherwise modifying, altering, adapting, porting, or merging all or any part of the Platform or the Results;
5. Removing, altering, defacing, overprinting or otherwise obscuring NetSPI’s Intellectual Property notices;
6. Publishing or distributing in any form of electronic or printed communication the object code, documentation, help files, examples, benchmarks or other materials related to the Platform (the foregoing does not apply to Results on the Platform);
7. Tampering with the Platform or attempting to modify, defeat or circumvent the proper and secure operation of the Platform;
8. Using the Platform or Results for any unlawful, unsafe, malicious or abusive purpose.


4. Credentials and Security; Disabling Feature of Platform
   1. Client must issue each User a password and account name (collectively, the “Credentials”) to access and use the Platform and Service. Client is solely responsible for administering the Credentials.
   2. The Platform may contain code that will render the Platform inoperable (“Disabling Feature”) at the end of the Term without further notice from NetSPI.


5. System Requirements. Client shall be solely responsible for notifying Users of the requirements to access the Platform and the Service.


6. Training and Support; Customization Services. NetSPI shall not provide training to Client for use of the Platform. NetSPI shall only be required to provide Support to Client’s Administrator, and Client shall be solely responsible for providing support to all Users. NetSPI shall not provide customization services for the Platform.


7. Fees. Fees for the access and use of the Platform shall be described in the applicable statement(s) of work, order form, or other agreement for the information security testing and assessment services which generate the Results (“Services”), or the statement of work or agreement under which NetSPI licenses the NetSPI Platform (“Software”) to Client (such statements of work, agreement and/or software license are referred to as the “Contract”).


8. Payment. Client shall pay NetSPI fees for the license to the Platform or other related services (“Fees”) per the terms of the Contract.


9. Taxes. Fees and other prices for the Platform are exclusive of all taxes. Client shall pay (and NetSPI shall have no liability for), any taxes, tariffs, duties or assessments imposed in connection with this Agreement, except for tax based solely on the income of NetSPI or NetSPI’s employment-related taxes.


10. Remedies. Without prejudice to its other remedies:
    1. If Client fails to pay any Fees when due, NetSPI may, with or without notice to Client, suspend Client’s access to the Platform and NetSPI’s other obligations under this Agreement, subject to such conditions as NetSPI may require.
    2. If, in NetSPI’s opinion, the Platform is likely to become the subject of a claim of infringement or at any time during the course of any litigation concerning the Platform, NetSPI will have the option, at its discretion, to: (i) replace the Platform with a non-infringing service, or; (ii) modify the Platform so that it is no longer infringing, or; (iii) procure for Client the right to continue using the Platform, or; (iv) terminate the Platform.


11. Ownership of Intellectual Property. Client agrees that NetSPI retains and owns all Intellectual Property Rights to the Platform and related documentation (collectively, the “NetSPI Materials”). Nothing in this Agreement transfers or conveys any ownership rights to the NetSPI Materials to Client.


12. Ownership of Results and Client Code. Results imported or uploaded by Client or NetSPI using the Platform, or Client code uploaded to the Platform for assessment by NetSPI, are owned by Client, provided that any appliances, methodologies, code, templates or report formats, tools, policies, or screenshots provided by NetSPI as part of the Platform remain NetSPI Materials.


13. Access and Use; Monitoring Use. All Client Systems used to access the Platform or Services shall comply with specifications reasonably required by NetSPI for technical or security purposes. NetSPI may monitor and track use of the Platform or Services by Users using anonymous and non-anonymous tracking technologies and methods to enable NetSPI to monitor the performance of the Platform and Services and for other lawful purposes.


14. New Versions or Releases; Updates, Upgrades and Customization. NetSPI may (but is not required) to prepare new releases or versions of the Platform, or to create updates, upgrades, or perform customization of the Platform and the Service. All new releases or versions of the Platform, or updates, upgrades, or customization of any kind performed by NetSPI on the Platform, shall be NetSPI Materials under Section 11 of this Agreement.


15. Warranty Disclaimer. NetSPI expressly disclaims any and all representations, warranties and conditions of any kind or nature, express or implied, regarding the Platform. Without limiting the foregoing, NetSPI does not represent or warrant that: (i) the Platform will meet Client’s requirements, or (ii) the Platform will be error-free, uninterrupted, free from viruses, malicious code or security exploits created or inserted by any third party.


16. Limitation of Liability; Indemnification.
    1. NetSPI’s entire liability to Client and all Users for all losses or claims for or arising out of the Platform or Results shall not exceed the fees paid to NetSPI by Client in the calendar year in which the loss or claim first arose. In no event will NetSPI be liable for direct, special, incidental, indirect, consequential, punitive or exemplary damages, or any lost revenue or profits, lost data, delays, or failure to realize expected profits or savings, even if advised of the possibility of such loss or damage.
    2. Client agrees to indemnify and hold NetSPI harmless from any claim or demand, including related attorney’s fees, arising out of the misuse of the Platform, or violation of this Agreement, by Client or any Users.
    3. NetSPI agrees to indemnity and hold Client harmless from claims or demands, including related attorney’s fees, solely due to third party claims against Client alleging that the Platform violates or infringes such third party’s intellectual property rights, or claims for or arising out of NetSPI’s intentional misconduct or gross negligence in providing the Platform to Client under this Agreement.
    4. The duty of one party to indemnify the other is conditioned on the party that is being indemnified permitting the indemnifying party to control the handling, settlement and defense of the claims or demands, including selection of counsel to defend the indemnified party in such claims or demands.


17. Term and Termination.
    1. Unless terminated earlier under Section 17.b, this Agreement shall begin on the Effective Date and terminate on the earlier of: (i) the date the license to the Platform has expired; (ii) the end date of Client’s penetration testing as a service (“PTaaS”) subscription as set forth in the applicable Contract; or (iii) the date the Contract has been terminated (the “Term”).
    2. This Agreement may be terminated by NetSPI if Client materially breaches any term of this Agreement or any other agreement with NetSPI and fails to cure such breach within 30 days after Client’s receipt of NetSPI’s written notice of breach.
    3. Upon the termination of this Agreement, the license to the Platform shall cease, and: (i) Client and its Users shall immediately and permanently cease to use the Platform; (ii) Client shall pay to NetSPI all amounts owing under this Agreement, if any remain unpaid.


18. Additional Provisions
    1. Notice. Notices may be given by one party to the other by electronic mail or by facsimile.
    2. Force Majeure. If the performance of any obligation under this Agreement is prevented, restricted, or delayed by reason of fire, flood, earthquake, explosion or other casualty or accident or act of God or any other act or condition whatsoever beyond the reasonable control of the affected party, the party so affected shall be excused from such performance to the extent of such prevention, restriction or interference.
    3. Severability. If any provision or portion of this Agreement is deemed to be unenforceable, it shall be limited to give effect to the intent of the parties and the remainder of this Agreement shall remain binding.
    4. Assignment. Client may not, without NetSPI's prior written consent, assign or transfer this Agreement or any of its rights or obligations under this Agreement to any third person.
    5. Governing Law; Venue. This Agreement shall be deemed to have been made in the State of Minnesota and shall be governed by and construed in accordance with the laws of the State of Minnesota, without regard to principles of conflicts of law. The parties waive trial by jury for any proceedings between them, and irrevocably consent to the sole jurisdiction of the United States District Court located in St. Paul, Minnesota or the Minnesota state courts located in Hennepin County, Minnesota, as applicable, for the resolution of any disputes between them.
    6. Survival. The terms of Sections 1.c, 3, 8, 9, 11, 12, 15, 16, 17.c and 18 shall survive the termination or expiration of this Agreement. In the event of any conflict between the terms of this Agreement and the terms of any Contract concerning the Platform, the terms of this Agreement shall be controlling.