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Contrast Security End User License Agreement

This Contrast Security End User License Agreement (“Agreement”) is entered into by and between Contrast Security, Inc (“Contrast”) and any person, corporation or other entity that purchases Contrast services through a third-party (the “End User”). Contrast provides a security and management platform (the “Platform”). This Agreement establishes the terms under which End User may access and use the Platform and services purchased through a third-party reseller (“Reseller”). By accessing and using the Platform and its related services, End User agrees to be bound by this Agreement. Contrast and End User are each ‘a Party’ and together, are ‘the Parties’.

  1. License and Use. Contrast will make the Platform and related systems and technologies (the “Services”) available to End User pursuant to an Order Form entered into between Contrast and Reseller (the “Order Form). End User is hereby granted the right for it and its authorized users to access the Platform and Services through their documented access points and to use their documented functionality for its internal operations, for the duration of the subscription term set out in the Order Form and to the limits of the subscription scope described in this Agreement and in the Order Form. End User shall use the Platform and Services in accordance with Contrast’s official user documentation available at contrastsecurity.com/support (the “Documentation”).  For purposes of this Agreement, “Application”, “Application Instance” shall have the meanings set forth at www.contrastsecurity.com/appdefinition. End User may only use the Services licensed by Application to manage and analyze the maximum aggregate number of Applications set forth on the applicable Order Form and, once End User has used the Service to manage or analyze a particular Application, that Application will permanently count toward the number of maximum allowable Applications and may not be replaced by another Application.  If an Order Form sets out other methods for counting the Services licensed, terms used in such Order Form shall also be defined at www.contrastsecurity.com/appdefinition.

  2. Support; Service Levels. Contrast will provide support and uptime for the Services in accordance with (i) the End User’s support package and (ii) Contrast’s then-current standard Support and Availability Policy set forth at contrastsecurity.com/tos.

  3. Service Updates. From time to time, Contrast may provide upgrades, patches, enhancements, or fixes for the Services to its End Users, as applicable, generally without additional charge (“Updates”), and such Updates will become part of the Service and subject to this Agreement. Notwithstanding the foregoing, Contrast shall have no obligation under this Agreement or otherwise to provide any such Updates.

  4. End User Data. For purposes of this Agreement, “End User Data” shall mean any code (source, binary or object), data, information or material provided, uploaded, or submitted by End User and its authorized users to the Platform or Service while using the Platform or Services. End User and its authorized users shall retain all right, title and interest in and to the End User Data, including all intellectual property rights therein. End User agrees and acknowledges that End User Data may be irretrievably deleted if End User’s account is ninety (90) days or more delinquent; provided that End User’s hosted data (as this relates to SaaS Services), shall be automatically deleted within 37 days after termination or expiration of this Agreement and all applicable Order Form(s). Notwithstanding anything to the contrary, End User acknowledges and agrees that Contrast may (i) internally use (but not disclose) End User Data for the purposes of (A) providing the Platform or Services to End User and (B) generating Aggregated Anonymous Data, and (ii) freely use and make available Aggregated Anonymous Data for Contrast’s business purposes. “Aggregated Anonymous Data” means data submitted to, collected by or generated by Contrast in connection with End User’s use of the Platform or Services, but only in aggregate, anonymized form which can in no way be linked specifically to End User.

  5. Ownership; Feedback. As between the parties, Contrast retains all right, title, and interest in and to the Platform and Services, including products, works and copies or derivative works thereof and other intellectual property and moral rights related thereto or created, used, or provided by Contrast for the purposes of this Agreement. Any software which is distributed or otherwise provided to End User hereunder shall be deemed a part of the “Platform” or “Service”. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement. End User may, from time to time, provide suggestions, comments or other feedback to Contrast with respect to the Platform or Service (“Feedback”). End User shall, and hereby does, grant to Contrast a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use and exploit the Feedback for any purpose; provided that such license grant shall not be construed to relieve Contrast of any confidentiality obligations it may have hereunder with respect to End User Data. Nothing in this Agreement will impair Contrast’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with, any products, software or technologies that End User may develop, produce, market, or distribute.

  6. Professional Services. Should Contrast provide Professional Services to End User as set forth in one or more Statements of Work (“Professional Services”), anything produced by, resulting from or arising in the course of performance of such Statements of Work shall be deemed the property of Contrast.  

  7. Reservation of Rights. Each party reserves all intellectual property rights not expressly granted in this Agreement.

  8. Personal Information. Contrast may collect certain information from End User in connection with End User’s use of the Services and otherwise in connection with this EULA. Such information might be considered ‘personal information’ under applicable data protection laws. All such ‘personal information’ will be used by Contrast in accordance with Contrast’s then-current Privacy Policy, found at https://www.contrastsecurity.com/privacy-matters, which End User acknowledges.  

  9. Identifying End User as Client. During the Order Form Term, End User grants Contrast the limited right to use End User’s corporate names, logos, and trademarks (“Marks”) in Contrast’s websites and marketing materials for the sole purpose of identifying End User as a client. Contrast will use the Marks only in a manner that complies in all material respects with End User’s trademark usage policies that may be provided by End User to Contrast from time to time. If Contrast, in the course of performing this Agreement, acquires any goodwill or reputation in any of the Marks, all such goodwill or reputation will automatically vest in End User when and as, on an on-going basis, such acquisition of goodwill or reputation occurs, as well as at the expiration or termination of this Agreement.

  10. Term; Termination for Cause. Unless terminated earlier pursuant to this Agreement, this Agreement shall commence upon access of the Platform or Services by End User (the “Effective Date”) and remain in force until all Order Forms and SOWs have expired or otherwise been terminated and End User has ceased using the Platform or Services. Unless stated otherwise in writing signed by the parties, this Agreement will be binding on End User for all subsequent Order Forms between Contrast and Reseller. In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by providing written notice to the breaching party, provided that the breaching party does not materially cure such breach within thirty (30) days of receipt of such notice. Without limiting the foregoing, Contrast may suspend or limit End User’s access to or use of the Platform or Services if (i) End User’s account is more than thirty (30) days past due—regardless if payment by End User to Reseller was made—, or (ii) End User’s use of the Platform or Services results in (or is reasonably likely to result in) damage to, or material degradation of, the Platform or Services; provided that in the case of subsection (ii): (a) Contrast shall use reasonable good faith efforts to work with End User to resolve or mitigate the damage or degradation in order to resolve the issue without resorting to suspension or limitation; and (b) Contrast shall reinstate End User’s use of or access to the Platform or Services, if End User remediates the issue within the time stipulated by Contrast in such notice. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.

  11. Indemnification. Each party (“Indemnitor”) shall defend, indemnify, and hold harmless the other party, its affiliates and each of its affiliates’ employees, consultants, contractors, directors, suppliers and representatives (collectively, the “Indemnitee”) from all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) (“Losses”), that arise from or relate to any claim that (i) the End User Data or End User’s use of the Service or Product (in the case of End User as Indemnitor), or (ii) the Service or Product (in the case of Contrast as Indemnitor), infringes, violates, or misappropriates any third party intellectual property or proprietary right. Each Indemnitor’s indemnification obligations hereunder shall be conditioned upon the Indemnitee providing the Indemnitor with: (i) prompt written notice of any claim (provided that a failure to provide such notice shall only relieve the Indemnitor of its indemnity obligations if the Indemnitor is materially prejudiced by such failure); (ii) the option to assume sole control over the defense and settlement of any claim (provided that the Indemnitee may participate in such defense and settlement at its own expense); and (iii) reasonable information and assistance in connection with such defense and settlement (at the Indemnitor’s expense). The foregoing obligations of Contrast do not apply with respect to the Service or Product or any information, technology, materials or data (or any portions or components of the foregoing) to the extent (i) not created or provided by Contrast, (ii) made in whole or in part in accordance to End User specifications, (iii) modified after delivery by Contrast, (iv) combined with other products, processes or materials not provided by Contrast (where the alleged Losses arise from or relate to such combination), (v) where End User continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) End User’s use of the Service or Product is not strictly in accordance herewith.

  12. Confidentiality.

12.1 “Confidential Information” means the non-public information that is exchanged between the parties, provided that such information is: (a) identified as confidential at the time of disclosure by the disclosing party (“Discloser”), or (b) disclosed under circumstances that would indicate to a reasonable person that the information ought to be treated as confidential by the party receiving such information (“Recipient”). A Recipient may use the Confidential Information that it receives from the other party solely for the purpose of performing activities contemplated under this Agreement. For as long as Confidential Information remains confidential (pursuant to this Section ‎12), a Recipient’s confidentiality obligations under this Section ‎12 shall remain in effect. Recipient shall protect Discloser’s Confidential Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use, dissemination or publication as the Recipient uses to protect its own confidential information of a like nature. The Recipient may disclose the Confidential Information to its Affiliates, agents and independent contractors with a need to know in order to fulfill the purpose of this Agreement and who have signed a nondisclosure agreement at least as protective of the Discloser’s rights as this Agreement.

12.2 This provision imposes no obligation upon a Recipient with respect to Confidential Information which: (a) is or becomes public knowledge through no fault of the Recipient; (b) was in the Recipient’s possession before receipt from the Discloser and was not subject to a duty of confidentiality is; (c) rightfully received by the Recipient without any duty of confidentiality; (d) disclosed generally to a third party by the Discloser without a duty of confidentiality on the third party; or (e) independently developed by the Recipient without use of the Confidential Information. The Recipient may disclose the Discloser's Confidential Information as required by law or court order provided: (i) the Recipient promptly notifies the Discloser in writing of the requirement for disclosure; and (ii) discloses only as much of the Confidential Information as is required. Upon request from the Discloser or upon termination of the Agreement, the Recipient shall return all Confidential Information and all copies, notes, summaries or extracts thereof or certify destruction of the same.

12.3 Each party will retain all right, title and interest to such party’s Confidential Information. The parties acknowledge that a violation of the Recipient’s obligations with respect to Confidential Information may cause irreparable harm to the Discloser for which a remedy at law would be inadequate. Therefore, in addition to any and all remedies available at law, Discloser shall be entitled to seek an injunction or other equitable remedies in all legal proceedings in the event of any threatened or actual violation of any or all of the provisions hereof.
 
  1. Warranty; Disclaimer and Exclusive Remedy. Contrast represents and warrants that, during the applicable Term, the Platform and Services will operate in substantial conformance with the Documentation. As End User’s sole remedy (and Contrast’s sole liability) for any breach of the warranty set forth in the foregoing sentence, Contrast shall use commercially reasonable efforts to correct the applicable nonconformance. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PLATOFRM AND THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.


  2. Limitation of Liability. EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS, AND END USER’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICE OR PRODUCTS, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID (OR PAYABLE) BY RESELLER TO CONTRAST (IN RESPECT OF THE SERVICES PROVIDED TO END USER) HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER.


  3. Entire Agreement. This Agreement is the complete and exclusive Agreement between the parties with respect to the subject matter hereof, and supersedes any previous or contemporaneous agreement, proposal, commitment, representation, or other communication (whether oral, written, or electronic) between the parties regarding such subject matter. This Agreement prevails over any conflicting or additional terms of any purchase order, acknowledgement, or confirmation or other document issued by End User, even if signed and returned.


  4. Choice of Law and Jurisdiction. The Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules, and the Parties consent to exclusive jurisdiction and venue in the state and federal courts located in Santa Clara, California.


  5. Notices. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices must be sent to the contacts for each party set forth on the most recent Order Form. Either party may update its address set forth above by giving notice in accordance with this section.


  6. Force Majeure. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts.


  7. Assignment and Subcontracting. Neither party may assign any of its rights or obligations hereunder without the other party’s consent; provided that (i) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party’s business relating to this Agreement, and (ii) Contrast may utilize subcontractors and other service providers in the performance of its obligations hereunder. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect.


  8. Enforceability. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches.