Terms & Conditions
GENERAL TERMS AND CONDITIONS
These General Terms and Conditions govern the purchase and use of Antigen’s Services by the customer listed on a Statement of Work (“Customer”) entered into between Partner and Antigen for Antigen Services. By accepting Antigen Services, Customer and Partner agree to these General Terms and Conditions.
DEFINITIONS
“Deliverables” means any and all written reports that are created pursuant to a Statement of Work.
“Party” means Customer, Partner or Antigen, whichever is applicable.
“Indicators of Compromise” or “Indicators” means a set of data provided by Antigen for use with the Antigen Hardware and Antigen Software. Indicators are configurations and specifications of anomalies, configurations, or other conditions that the Antigen Hardware· and/or Antigen Software are capable of identifying within an information technology infrastructure.
“Antigen Hardware” means any computer, device or other hardware used by Antigen to provide the Services and includes any firmware or other intellectual property copied to or installed on the Antigen
“Antigen IP” means all Antigen proprietary materials and know how, including without limitation the Antigen Hardware, the Antigen Software, and the Indicators of
“Antigen Software” means any computer software used by Antigen to provide the Services, and includes all updates, patches and fixes to such
“IP” or “Intellectual Property” includes, but is not limited to, computer programs, source codes, ideas, trade secrets, processes including any specified processes for the handling of electronic evidence, hash value libraries, and/or any other concept, methodologies, compilation, techniques, proprietary computer hardware/systems, or process whether or not eligible for federal copyright or patent protection.
“Antigen Services” means the professional services described on an applicable Statement of Work, including, but not limited to, incident response and recovery services.
“Partner” a party who has contracted with Antigen pursuant to a Partner Services Agreement or similar agreement whereby Partner is reselling Antigen Services.
“Statement of Work” means a mutually agreed upon instrument between Partner and Customer or Partner and Antigen describing Antigen Services to be provided for Customer and incorporating these General Terms and Conditions.
“Third Party IP” means all proprietary materials of third parties, including but not limited to Red Canary, Inc. (“Red Canary”).
“Data Protection Laws” means all laws, regulations, rules, and guidelines in any relevant jurisdiction including, but not limited to the laws and regulations of the European Union, the European Economic Area and their member states, Switzerland, the United Kingdom and the United States and its states and territories, applicable to the Processing of Personal Data under the Agreement as amended from time to time.
”GDPR” means the General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons as to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC including as implemented or adopted under the laws of the United Kingdom and other members of the European Economic Area.
DESCRIPTION/CONDITIONS OF SERVICE
Service and Deliverables. Antigen agrees to perform the Antigen Services and provide the Deliverables, if any, on the applicable Statement of Work or as otherwise agreed by the Parties in Each Statement of Work shall be governed by these General Terms and conditions. In the event Partner enters into a Statement of Work with Customer in connection with Antigen Services, Partner shall require Customer to acknowledge that such Statement of Work is governed by these General Terms and Conditions.
Additional Engagements. Additional engagements will be detailed in separate Statements of Work which will be individually
Hardware and Software Deployment. If the Services require the installation and use of Antigen Hardware and/or Antigen Software, Customer shall facilitate the installation and maintenance thereof and shall provide physical space, electrical power, Internet connectivity and physical access as reasonably determined and communicated by Antigen.
Licensing Terms & Conditions of Use. Customer and Partner agree to abide by any and all related third party Terms and Conditions provided, including, but not limited to those license agreements, distribution agreements or other agreements pertaining to any Statement of Work or other Agreement between the Parties.
DATA PROTECTION
All Parties shall comply with the Data Protection Laws as they apply to each Party in connection with the Antigen Services.
- To the extent that the Antigen Services involve the processing of Personal Data as defined under the GDPR, the Parties agree as follows:
- The Parties agree that for the provision of the Antigen Services, the Customer shall be considered a controller and Antigen shall be considered a processor.
- Where Customer transfers or otherwise makes available personal data to Antigen in relation to the Antigen Services, Customer shall ensure that (i) Customer has the necessary rights to transfer it or make it available to Antigen; (ii) the instructions to Antigen comply with (and will not cause Antigen to breach) the Data Protection Laws; and (iii) Customer has taken reasonable steps to ensure that any data subjects are aware of the nature of the processing to be undertaken.
- Antigen shall only process personal data in accordance with Customer’s written instructions or as required for Antigen to provide, manage and facilitate the provision of the Antigen Services, and only in respect of the subject matter, duration, nature and purpose of the Services, and the type of personal data and categories of data subject relevant to the Services;
- Antigen shall protect personal data by implementing appropriate technical and organizational measures, as required under the applicable Data Protection Laws;
- Antigen shall assist Customer to fulfil, at Customer’s cost, Customer’s obligations to data subjects under the Data Protection Laws;
- Antigen shall, where reasonably requested, assist Customer, at Customer’s cost, in complying with Customer’s obligations under the Data Protection Laws;
- Antigen shall, when the Antigen Services are terminated (as provided in the Agreement), at Customer’s choice, either return or delete the personal data (to the extent reasonably possible), unless Antigen is required by law or regulation to keep the personal data
- Antigen shall provide Customer with information reasonably necessary to demonstrate compliance with Customer’s data protection obligations under the Data Protection Laws and allow for and contribute to audits requested by Customer, at Customer’s cost;
- Antigen shall be permitted to appoint other processors to process personal data in connection with the Antigen Services, provided a written agreement is in place requiring the sub-processors to comply with the data protection obligations equivalent in all material respects to the data protection obligations in this Agreement.
- Antigen shall not process or transfer it outside the European Economic Area unless Antigen has a lawful basis to do so, such as where (i) an adequacy finding has been made under the Data Protection Laws that the relevant jurisdiction provides an adequate level of protection; or (ii) we have put in place appropriate safeguards as required under the Data Protection Laws for such processing or transfers.
- Where Customer instructs Antigen to transfer personal data to a third party not engaged by Antigen, Customer is responsible for ensuring that adequate arrangements are in place for such transfer as required by the Data Protection Laws.
- To the extent that the Services involve the processing of Personal Information as defined under the California Consumer Privacy Act, Cal. Civ. Code § 1798.100 et seq., and its implementing regulations (“CCPA”), the Parties agree that Customer is considered a “business” (as defined in Cal. Civ. Code §1798.140), and Antigen will act as a “service provider” in its performance of its obligations under the Agreement. Antigen will not retain, use, sell, or disclose any Personal Information for any purpose other than Antigen’s performance of its obligations under the Agreement in accordance with Customer’s documented lawful instructions, or as otherwise permitted by the CCPA.
- In the event of a change in the applicable Data Protection Laws or a determination by a regulator or authority that affects the lawfulness of any Services involving the processing of personal data and/or Personal Information under the Agreement, the Parties agree to make any further amendments as are reasonably necessary to ensure continued compliance with the applicable data protection law.
INTELLECTUAL PROPERTY
Grant of License. Upon full payment by invoiced party, Antigen shall assign to Customer all copyrights in and to the Deliverables developed for and delivered to Customer with the exception of any Antigen IP or Third Party IP included
Intellectual Property Rights. Customer and Partner acknowledge that Antigen may use Antigen IP and/or Third Party IP to provide the Services, and that Customer and Partner may obtain access to certain Antigen IP or Third Party IP as a result of Antigen’s performance of its obligations under these General Terms and Conditions. Antigen IP and Third Party IP is and shall remain the sole and exclusive property of Antigen or the applicable third party and Antigen and such applicable third party shall retain all right, title and interest in and to the Antigen IP and Third Party IP and all derivative works thereof. Between Customer, Partner and Antigen, Antigen shall retain all rights and title in and to any indicators of compromise (data developed by Antigen for use in identifying malware, vulnerabilities, anomalies, compromises or other potentially harmful conditions within an information technology infrastructure) developed by Antigen during the term of any Statement of Work. Customer and Partner agree to provide Antigen all reasonable assistance necessary and appropriate to perfect Antigen’s ownership of such Intellectual Property, including without further compensation, the execution of assignments of Customer’s and Partner’s right, title, and interest.
Subject to the exceptions set forth below, Customer and Partner agree not to reproduce or modify any portion of the Antigen IP or Third Party IP, and will not disclose, sell, sublicense or otherwise transfer or make available all or any portion of the Antigen IP or Third Party IP to any third party without the prior written consent of Antigen or the applicable owner of the Third Party IP; provided, however, that Customer and Partner may share Deliverables with U.S. federal law enforcement agencies. Nothing contained in these General Terms and Conditions shall directly or indirectly be construed to assign or grant to Customer or Partner any right, title or interest in or to the trademarks, copyrights, patents or trade secrets of Antigen or any ownership rights in or to the Antigen IP or Third Party IP. Neither Customer nor Partner shall cause or permit the reverse engineering, reverse assembly, or reverse compilation of, or otherwise attempt to derive source code from, the Antigen IP or Third Party IP. Neither Customer nor Partner shall create derivative works based upon all or part of the Antigen IP. Notwithstanding the foregoing, Customer and Partner may disclose Indicators to its third party infrastructure provider(s) (each an “Infrastructure Vendor”) to the extent such disclosure is necessary for the Infrastructure Vendor to provide services to Customer; provided, however, that prior to such disclosure, Customer and Partner shall ensure that Infrastructure Vendor has signed a nondisclosure agreement at least as restrictive as these General Terms and Conditions.
No Resale, Third Party Services. Neither Customer nor Partner shall resell, redistribute or make available Antigen IP, Third Party IP, the Services or the Deliverables to any third party, and shall not use the Antigen IP or the Third Party IP Deliverables to provide services to any third party, unless Customer has agreed to permit such resale or redistribution in writing.
TERM AND TERMINATION
Term. The term of these General Terms and Conditions shall be coincident with the term of any Statement of Work.
Termination. A party to a Statement of Work shall have the right to terminate the Statement of Work: (a) upon fifteen (15) days written notice in the event that the other Party, or any of its officers, employees or agents, violates any provision of these General Terms and Conditions and fails to cure such breach within the fifteen (15) day notice period; or (b) immediately in the event the other Party (i) terminates or suspends its business; (ii) becomes subject to any bankruptcy or insolvency proceeding under Federal or state statute; or (iii) becomes insolvent or becomes subject to control by a trustee, receiver or similar Termination of a Statement of Work shall be in addition to and not in lieu of any remedies available.
Consequences of Termination. Upon the termination or expiration of a Statement of Work, Antigen shall have the right to immediate possession of the Antigen IP and Third Party IP and all documentation (including all copies thereof) wherever located, without demand or Within five (5) days after termination of a Statement of Work, Customer will return to Antigen the Antigen IP or, upon request by Antigen, destroy the Antigen IP (with the exception of the Antigen Hardware) or the Third Party IP and all copies thereof.
Survival. All Sections of these General Terms and Conditions that by their nature should survive termination or expiration will survive termination of a Statement to Work, including without limitation Sections 3, 2.4, 3, 4.2, 4.3, 4.4, 5.3, 5.4 and 5.5 through 9. Without limiting the foregoing, termination of a Statement of Work shall not relieve Customer of the obligation to pay for Services rendered or goods provided prior to such termination.
Stop Work. Antigen will stop all work on a project within twenty-four (24) hours after receiving a written stop-work order from Customer or Partner. Work on a project suspended by a stop-work order will not resume until Customer or Partner provides Antigen with a written request to resume
CONFIDENTIALITY
Confidential Information. Each Party or its employees, consultants, or agents may be exposed to information that is proprietary or confidential to the other Party or its affiliates, to include, but not limited to, state and federal tax information, social security numbers, taxpayer identification numbers, federal employment identification numbers and any such other information contained on a federal or state tax return (“Confidential Information”). Any non-public information of any form obtained by either Party or its employees while performing a Statement of Work shall be deemed Confidential Each Party agrees to hold. the Confidential Information of the other Party in confidence and not to disclose such information to any third parties or to use the information for purposes outside the scope of the Statement of Work. Each Party will advise its employees of their responsibilities under these General Terms and Conditions. Confidential information shall not include information that is (a) part of or becomes part of the public domain (other than by disclosure by the receiving Party in violation of these General Terms and Conditions); (b) previously known to the receiving Party without an obligation of confidentiality; (c) independently developed by the receiving Party; or (d) rightfully obtained by the receiving Party from third parties without an obligation of confidentiality. At the end of a Statement of Work, or earlier if requested by the disclosing Party, the receiving Party shall promptly return or destroy all Confidential Information.
Exceptions. Notwithstanding Section 1, if Customer or Partner have hired Antigen to perform a PCI DSS Compliance Audit or a PCI investigation, Antigen may provide The Payment Card Industry Security Standards Council, LLC (PCI SSC), card companies and the relevant merchant bank with all Reports of Compliance (ROC) and all related assessment and investigative report documents generated in connection with such· work. Notwithstanding Section 6.1, either Party may disclose the Confidential Information of the other Party to the extent such disclosure is required to comply with· applicable law or the valid order of a court of competent jurisdiction, provided that the disclosing Party (a) restricts such disclosure to the maximum extent legally permissible; (b) notifies the Party to whom the Confidential Information belongs as soon as practicable of any such requirement; and (c) that subject to such disclosure, such disclosed materials shall in all respects remain subject to the restrictions set forth in these General Terms and Conditions.
Freedom of Information. For those Customers in the public sector or who may be subject to state or federal Freedom of Information Act requirements or the equivalent, Antigen considers certain information contained in its Statement of Work as confidential and/or commercially sensitive. The disclosure of this information may cause harm to Antigen and or its commercial interests. These sections include Description of Services and Fees. These sections have been derived from the intellectual effort, knowledge, know how and expertise of Antigen and contains information that is original, innovative or the Intellectual Property of Antigen. The disclosure of this information to competitors may give them an unfair advantage in competing with Antigen in the future for similar projects. Disclosure of costs may specifically give those competitors an unfair advantage in future bids and proposals.
NON-SOLICITATION
During the term of a Statement of Work and for a period of twelve (12) months following the termination or expiration thereof, neither Party shall directly or indirectly solicit, recruit or encourage any of the other Party’s employees to terminate their then-current employment or other related agreements.
WARRANTIES, LIABILITY
Limited Warranty. Antigen warrants that the Antigen Services will be provided in a professional manner pursuant to industry standards for the same or similar services. THE ABOVE STATED LIMITED WARRANTY REPLACES ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF CONDITION, UNINTERRUPTED USE, MERCHANTABILITY, FI1NESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT, AND ANTIGEN DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
Exclusive Remedy. Customer’s sole and exclusive remedy and Antigen’s sole obligation in the event of a breach of the warranty set forth in Section 8.1 (provided that Customer notifies Antigen of the breach of the warranty within thirty (30) days of the failure event) is to re-perform that portion of the Antigen Services that did not comply with the warranty. If after using commercially reasonable efforts Antigen is unable to furnish services that comply with the above warranty, Customer or Partner, whichever is applicable, will be entitled to a refund of the fees paid to Antigen for that portion of the Services that did not comply with the
Indemnification.
Antigen agrees to defend Customer from and against any third party claim that Antigen’s provision of the Services infringes any copyright, trade secret or U.S. patent issued as of the Effective Date, and Antigen agrees to indemnify Customer from any finally awarded costs and/or damages against Customer in any such infringement claim or action or settlement thereof, provided that (i) Antigen is promptly notified in writing of such claim, (ii) Customer grants Antigen sole control of the defense and any related settlement negotiations, and (iii) Customer cooperates with Antigen in defense of such Antigen shall have no obligation for any alleged infringement that arises from (a) the combination, operation, or use of the Deliverables Antigen IP or Third Party IP with products, services, information, technologies, or processes not furnished or approved by Antigen; (b) modifications to the Deliverables Antigen IP or Third Party IP not made or authorized by Antigen; (c) failure to permit Antigen to update the Deliverables or Antigen IP; or (d) use of the Deliverables Antigen IP or Third Party IP except in accordance with the express terms of a State of Work or these General Terms and Conditions or Antigen’s written instructions (the foregoing clauses (a), (b), (c) and (d), collectively, “Customer Indemnity Responsibilities”). Customer agrees to defend, indemnify and hold harmless Antigen against any third-party claim that arises as a result of a Customer Indemnity Responsibility. Customer and Partner shall each, whichever shall be applicable, defend, indemnify and hold harmless Antigen from third party claims that arise due to that Parties breach of these General Terms and Conditions or an applicable Statement of Work…Upon the occurrence of a claim for which indemnity is or may be due under this Section, or in the event that Antigen believes that such a claim is likely, Antigen may, at its option (i) appropriately modify the Services, the Deliverables and/or the Antigen IP so that it becomes non-infringing, or substitute functionally equivalent hardware, software, or services; (ii) obtain a license to the applicable third-party intellectual property rights; or (iii) terminate the Statement of Work on written notice to Customer and refund to Customer a portion of the fees paid by Customer or Partner hereunder, prorated on a five (5)-year straight-line basis. The foregoing states the entire liability of Antigen and Customer’s and Partner’s sole remedy for any actual or alleged infringement or misappropriation with respect to infringement of any patents, copyrights, trade secrets, or other proprietary rights. by the Deliverables, Antigen IP, or any part thereof.
Limitation of Liability. THE CUMULATIVE LIABILITY OF ANTIGEN TO CUSTOMER AND PARTNER FOR ALL CLAIMS ARISING FROM OR RELATING TO A STATEMENT OF WORK OR THESE GENERAL TERMS AND CONDITIONS, INCLUDING WITHOUT LIMITATION ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL AMOUNTS PAID TO ANTIGEN BY CUSTOMER OR PARTNER, WHICHEVER IS APPLICABLE, UNDER THE APPLICABLE STATEMENT OF WORK1N THE SIX (6) MONTHS IMMEDIATELY PRIOR TO THE F1RST EVENT GIVING RISE TO SUCH THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF A STATEMENT OF WORK OR THESE GENERAL TERMS AND CONDITIONS HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. IN NO EVENT SHALL ANTIGEN BE LIABLE FOR ANY LOST REVENUES OR PROFITS, OR OTHER INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO A STATEMENT OF WORK OR THE SERVICES PERFORMED UNDER SUCH STATEMENT OF WORK, EVEN IF ANTIGEN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The disclaimers, exclusions and limitations of liability set forth in this Agreement form an essential basis of the bargain between the Parties and, absent any of such disclaimers, exclusions or limitations of liability, the provisions of the Statement of Work, including without limitation the economic terms, would be substantially different.
GENERAL
Governing Law. These General Terms and Conditions are made under and shall be governed by and construed in accordance with the laws of the State of Michigan, U.S.A., without reference to conflict of laws principles. Customer agrees to abide by the intellectual property laws and all other applicable laws (including export laws) of the United
Local Law. If any part of the Services requires the installation and use of any Antigen Hardware and/or Antigen Software or Third Party Software on any system or network located in a jurisdiction outside the U.S.A. (“Local Jurisdiction”) or involves the collection or monitoring of data traffic on a network located in a local jurisdiction, by Antigen in the provision of the Services, Customer shall remain solely responsible for compliance with its obligations under the law of such Local Jurisdiction relating to access granted to a third party to any network or data within the control of Customer, including without limitation, any laws relating to network integrity or security or to data privacy (where Customer shall remain the data controller and Antigen will have obligations only as applicable to a data processor). If the law of the Local Jurisdiction places obligations on Customer to obtain from any third party granted access to the network or such data, undertakings in connection with the integrity or security of such network or the processing of such data, Antigen will not unreasonably withhold or delay its execution of such agreement(s) as may reasonably be required by Customer in connection with such obligations in the local
Assignment. Any assignment of a Statement of Work by Customer to another party, including any transfer by operation of law or otherwise, without Antigen’s prior written consent, shall be null and void.
Severability. Any provision of a Statement of Work or these General Terms and Conditions that is held to be invalid by a court of competent jurisdiction shall be severed from the Statement of Work or these General Terms and Conditions, whichever is applicable, and the remaining provisions shall remain in full force and effect.
Force Majeure. Neither Party shall be liable in damages or have the right to terminate a Statement of Work for any delay or default in performing hereunder (with the sole exception of payment obligations) if such delay or default is caused by conditions beyond its reasonable control including without limitation acts of God, government restrictions (including the denial or cancellation of any export or other necessary license), acts of terrorism, wars or insurrections.
Waiver. Failure or delay by either Party to enforce compliance with any term or condition of a Statement of Work or these General Terms and Conditions shall not constitute a waiver of such term or
Independent Parties. Antigen and any third party providing software, equipment or services in conjunction with a Statement of Work, if applicable, are independent parties; neither Antigen nor such third party shall be liable for the performance or failure to perform of the
Independent Contractor. For purposes of a Statement of Work and these General Terms and Conditions, Antigen is an independent contractor. Nothing contained herein shall be construed to create an employment, principal-agent relationship, or joint venture between Antigen and either Partner or Customer, and no Party shall have the right, power or authority to obligate the other to any third party.
Entire Agreement. These General Terms and Conditions and any Statement of Work and any Exhibits attached supersede any and all oral agreements or understandings between the Parties as to the subject matter of the Statement of Work. In the event there is a conflict between any other written agreement or instrument including, but not limited to, a State of Work, Reseller Agreement or Referral Agreement or Distribution Agreement (collectively, the “Contracts) then the Contracts shall control over any conflicting provision in these Terms and Conditions.
Updates. Antigen reserves the right to routinely update, amend or change these General Terms and Conditions. At least 30 days prior to the effective date, Antigen will notify Customer and Partner by email of such changes, Customer’s and Partner’s continued use of Antigen Services after the 30th day shall serve as consent to the changed terms.
