Master Service Agreement

This NetWatcher Online Master Service Agreement is made by and between Defensative, LLC, (doing business as NetWatcher) a Delaware limited liability company (“Defensative” or “NetWatcher”), with principal offices located at 1862 Wiehle Ave., Reston, VA 20190 and the individual or entity identified as the customer in this Agreement or Service Order (“You” or “Customer“), effective upon the date of acceptance by You (“Effective Date”).   As a condition to the use of any NetWatcher service by Customer, Customer must accept this Agreement. If Customer does not accept this Agreement, Customer is not granted any right to use and Customer may not access any NetWatcher service. Upon the earlier of Customer’s signing this Agreement, clicking the “Accept” button, or otherwise accessing or using any NetWatcher service, this Master Service Agreement, together with the associated terms of use (“Terms of Use”) found at netwatcher.com/term-services, which You must accept below, shall become a legally binding contract between NetWatcher and Customer (the “Agreement”).  Terms with initial capital letters used herein without definition shall have the meanings given them in the Terms of Use.  By the earlier of accessing or using the Services or clicking the “Accept” button, You agree that You have read, understood, and agree to be bound by this Agreement. If You do not agree to the provisions of this Agreement, You may not use the Services.

1. Services.   

1.1 Services. 

The NetWatcher services (“Services”) which You may use are limited to those specified below in Section 10, “Ordering and Invoicing Information” or in an online Service Order Page.  Subject to Your complete and ongoing compliance with all the terms and conditions set forth in this Agreement, including the license granted by this Agreement, NetWatcher grants You permission to access and use the Services, only for Your individual use, and solely through the use of the NetWatcher customer portal (the “Portal”) You access through the netwatcher.com website. If You are prohibited under applicable law from using the Services, You may not use the Services.

1.2 Service Descriptions.

1.2.1 Sensor.

The NetWatcher Sensor (“Sensor”) passively observes subscriber network traffic on a mirror port to detect anomalous behavior and creates an event if it observes unusual security hygiene concerns. For example, this may include users running risky software, users visiting explicit websites known to be risky, users sending unencrypted data over the Internet, un-credentialed users who have penetrated the firewall and who are scanning internal assets for exploit, or potential cyber security exploits such as malware activity.

The NetWatcher Sensor also has the capacity to:

1. calculate and store network netflow analytics
2. actively scan the network and assets
3. ingest and analyze syslog events and logs from other devices
4. NetWatcher may add other services in the future.

The NetWatcher Cloud Endpoint “agent” (“net agent” or “NetWatcher Endpoint” or “NetWatcher Cloud Endpoint”) installs “modules” on the endpoint to perform functions such as host intrusion detection, event log analysis and network intrusion detection.  The “agent” can also be used to install other third party modules that a customer purchases (such as virus scanning) available through the NetWatcher App Store.   The agent modules may send events to a local on premise NetWatcher enterprise Sensor or a Sensor hosted in the cloud.

NetWatcher sends to the cloud events and the corresponding information related to those events including network packets, raw syslog data, host intrusion detection data, netflow analytics and any other raw information that relates to the event for correlation over time.  If an anomaly is detected such as a vulnerability, threat, exploit or other unusual data, NetWatcher generates an alarm to warn NetWatcher users of the potential risk related to the activity.   NetWatcher transmits event records and corresponding data to the NetWatcher cloud over a secure Virtual Private Network (VPN) using RSA 2048 bit certificates and AES 256 encryption in Cipher Block (CBC) Mode.

1.2.2 Privacy Shield.

NetWatcher participates in the Privacy Shield program of the U.S. Department of Commerce.  https://www.privacyshield.gov.   NetWatcher encrypts all information it retains with the exception of IP and mac addresses and event identification and uses the information it retains for the purpose of research and development, analytics, alarm creation and reporting.   NetWatcher’s Privacy Policy can be found at http://netwatcher.com/privacy-policy/.

1.2.3 Distribution.

The NetWatcher Sensor is available as a hardware appliance or a virtual machine.   The NetWatcher Cloud Endpoint Agent is available as a binary intended to run locally on an endpoint asset such as a Laptop or Server.  Both the sensor and Agent are available in a 15-day trial.   The agent is also offered with limited capabilities via a freemium model.

1.2.3.1. Freemium Cloud Endpoint Service.

You may use the Free Cloud Endpoint service for as long as NetWatcher offers it.  In the event NetWatcher elects in its sole discretion to terminate this offer, it will provide You fifteen (15) days’ notice of its intent to do so and thereafter may terminate access to the service without any further notice.   NetWatcher may add or delete features or impose other limits on use of the service from time to time.

1.2.3.2. Free Cloud Endpoint Service—Host Intrusion Detection.

Free Cloud Endpoint service entitles a customer to use the free service for as long as NetWatcher offers it.  In the event NetWatcher elects in its sole discretion to terminate this offer, it will provide You thirty (30) days’ notice of its intent to do so and thereafter may terminate access to the service without any further notice.    The free service includes the following features: asset information; file integrity analysis; process information, event log information, and network intrusion detection.  NetWatcher may add or delete Service features from time to time.

1.2.3.3. Multiple Net Agents.

Customers electing Multiple Net Agent service receive the service described in section 1.2.1. There is no restriction on the bandwidth subject to scanning.   Service is available with Sensors installed on Customer’s equipment

Ordering options for Multiple Net Agents.

1. Customer may purchase Cloud Endpoint service for a one year term.
2. Trial Service. Customers may begin Cloud Endpoint service with a free trial which allows customers to use the service without charge for fifteen (15) days.  At the end of the 15 day trial period, NetWatcher will charge the customer’s payment method for a one year service term unless customer notifies NetWatcher of its intent to terminate the service.  In this case, termination will be effective immediately.

1.3 Services.

The Services are designed to be run using our proprietary Sensors which are licensed not sold.  NetWatcher will provide the Sensors as necessary for You to receive and use the Services (collectively, the “Licensed Materials”).   Upon the termination by You or NetWatcher of Your use of the Services, or termination of this Agreement, whichever comes first, You will return Licensed Materials to NetWatcher or in the case of virtual machines, certify that You have deleted them, each within ten (10) business days. If any Sensor provided by NetWatcher is not timely returned or certified as deleted, You will be responsible for paying the then-current list price for such Equipment, and You agree that NetWatcher may charge the payment method provided by You for payment for the Services for the full amount thereof.

1.4 License. 

Provided that You fully comply with the Terms of this Agreement, NetWatcher grants You a personal, non-transferable, non-exclusive, revocable, limited license to use the Licensed Materials solely for Your own personal and internal corporate use.  You may not resell or sublicense the Licensed Materials.  You accept the Services and this License by using the Licensed Materials.  You agree that You will not:  (a) access, copy, disclose, or use any part or all of the Licensed Materials except in performance of this Agreement; (b) reverse engineer, decompile, or otherwise attempt to discover source code for the Licensed Materials; (c) create derivative works from the Licensed Materials; or (d) sell, resell, lease, sublease, license, sublicense, or otherwise dispose of or transfer the Licensed Materials except as otherwise expressly permitted in this Agreement.  This license automatically terminates upon the first to occur of the following:  (w) termination of this Agreement; (x) breach of any of the terms of this Agreement; (y) Customer’s failure to pay any amount to NetWatcher when due; or (z) termination of the Services by NetWatcher. You acknowledge and agree that NetWatcher will remain the exclusive owner of the Licensed Materials as well as all intellectual property rights inherent in them.

2. Fees.

2.1 Service Fees.

NetWatcher’s fees for the Services are as set forth in this Agreement or online Service Order. . The Services ordered (and Customer’s responsibility for fees) will commence on the first day on which NetWatcher: (i) has established communication with the Sensors and (ii) has verified the availability of Customer Information  (as defined in Section 7.2.1) on the NetWatcher customer Portal, (the “Service Commencement Date”); provided, the Customer’s responsibility for fees from any upgrades to the Services will commence on the first day in which NetWatcher has made any such upgrade accessible to Customer.  Unless otherwise agreed by NetWatcher and Customer, payment shall be by the credit card identified for payment for Services (or a valid substitute provided by Customer). An amount equal to the Fee for services shall be charged to Customer’s credit card monthly in advance (unless annual billing is selected in which case the charge shall be made annually in advance). The first billing period’s charges under this Agreement, or the first billing period for any upgrade to the Services, will include a prorated charge for the time period, if any, between the Service Commencement Date or upgrade date, as applicable, and the first day of the next calendar month. (For example, if the Service Commencement Date is April 20th, in the month of May, Customer will be charged for the month of May and the eleven days in April that Services were provided.) If NetWatcher agrees to an arrangement other than credit card billing, Customer shall be invoiced monthly or annually, as set forth in Section 10 below, in advance for services , and amounts invoiced shall be payable immediately upon receipt. NetWatcher may increase fees on at least thirty (30) days prior notice before the start of a new contract year.  You may purchase additional products and services offered by NetWatcher through its App Store which may be subject to supplemental terms indicated at time of purchase.  NetWatcher provides all third party products and services subject to the supplier’s standard terms, conditions and licenses.

2.2 Sales, Use and Other Taxes.

Customer shall pay any and all taxes or tax like charges (including but not limited to sales and/or use taxes, value added taxes, excise taxes, and stamp taxes), fees, tariffs, duties, or other similar levies imposed or required by any government, governmental unit or similar authority with respect to the fees paid or payments received in connection with the Services, except any such taxes based on NetWatcher’s income. All payments shall be made free and clear without withholding for any and all present and future taxes or other levies imposed by any taxing authority; provided, however, NetWatcher may in its discretion, or as required by law, bill Customer for any applicable taxes or levies and remit such amounts to the applicable taxing authority.

3. Term of Agreement.

The term of this Agreement shall commence on the date You accept this Agreement and shall continue until the completion or expiration of the Services or until this Agreement is terminated pursuant to the provisions hereof.

4. Termination.

Customer may terminate this Agreement at any time upon notice to NetWatcher either in writing or by notice through Customer’s Portal. NetWatcher may cancel this Agreement and terminate the Services or suspend or terminate its performance of this Agreement and the Services in whole or in part if Customer materially defaults in performing any obligation, including any payment obligation, hereunder and such default continues un-remedied for a period of ten (10) days following written notice of default; provided, that NetWatcher may cancel this Agreement and terminate the Services, or suspend or terminate performance of this Agreement and the Services in whole or in part, immediately, and without prior notice to Customer, upon any breach by Customer or any authorized user of the “Intellectual Property Rights” or “Services Software; Restrictions” sections of the Terms of Use.  If Customer terminates this Agreement, then Customer shall pay NetWatcher by the payment method set forth in this Agreement or the Service Order  for all amounts due for Services through the date of termination.  If Customer has prepaid any Service fees for a period ending after the date of termination, NetWatcher shall refund to Customer prepaid Service fees on a pro-rata basis for the period beginning on the termination date and the ending upon the date on which the prepaid service ended.  If NetWatcher terminates the Agreement and the Services or suspends or terminates performance of the Agreement and the Services in whole or in part, Customer shall pay all amounts due NetWatcher under open and active Orders.  The foregoing remedies of NetWatcher are in addition to and not in lieu of all rights and remedies available to NetWatcher at law or in equity.

5. Customer Cooperation.

>Customer acknowledges that NetWatcher’s performance and delivery of the Services are contingent upon: (i) Customer providing safe and hazard-free access to its personnel, facilities, equipment, hardware, network and information, and (ii) Customer’s timely decision-making, providing the requested information and granting of approvals or permissions, as (i) and (ii) are deemed reasonably necessary and reasonably requested for NetWatcher to perform, deliver and/or implement the Services. Customer will promptly obtain and provide to NetWatcher any required licenses, approvals or consents necessary for NetWatcher’s performance of the Services.  NetWatcher will be excused from its failure to perform its obligations under this Agreement to the extent such failure is caused solely by Customer’s delay in performing or failure to perform its responsibilities hereunder.

6. Security Breach.

NetWatcher agrees to promptly notify Customer upon becoming aware of a confirmed use or disclosure of Customer Information in violation of this Agreement.

7. Indemnification. “Indemnified Parties”

shall mean, in the case of NetWatcher, NetWatcher, its affiliates each of their respective directors, officers, employees, contractors and agents and, in the case of Customer, Customer, its affiliates, and each of their respective directors, officers, employees, contractors and agents.

7.1 Customer Consent:

By entering this Agreement and by using the Services, Customer consents to, and hereby agrees that NetWatcher may access  Customer’s networks and computer systems including the access to and use, disclosure, interception, transmission, receipt, analysis, processing, copying, editing, encryption, decryption, and storage of Customer’s information and that of its employees, agents and those it authorizes to use the Services, whether encrypted or in clear text (“Customer’s Information”) for the purpose of providing the Services, including, without limitation, analyzing Customer’s network traffic, and for storage and retention of Customer’s Information for future reference and analysis.     Customer represents and warrants that it complies with all applicable data collection and transfer laws and regulations of the countries in which it operates and that it has duly obtained all consents, permits or licenses, in writing or electronically that may be necessary under applicable laws from its employees, agents, and those it authorizes to use the Services in order to enable NetWatcher to provide the Services under the Agreement.   Prior to using the Services, or at any other time reasonably determined by NetWatcher, Customer will provide NetWatcher true and correct copies of such consents. Customer further agrees to use the Services provided hereunder only in the United States of America.

7.2.  Indemnity:

Customer shall defend, indemnify and hold harmless the NetWatcher Indemnified Parties from and against any damages, orders, decrees, judgments, liabilities, claims, actions, lawsuits, costs and expenses (including, without limitation, costs of litigation and attorneys’ fees) (“Claims”) incurred by the NetWatcher Indemnified Parties or finally adjudicated against the NetWatcher Indemnified Parties arising out of or resulting from:  (i) infringement of intellectual property rights, including, without limitation, copyright, trademark, trade secret, patent, and common law rights in connection with Customer’s Information, networks, or computer systems; (ii) violation of applicable laws or policies by Customer, including, without limitation in connection with Customer’s Information, networks, or computer systems; (iii) failure by Customer to secure all necessary consents, permits, and licenses, including without limitation, in connection with Customer’s Information, networks, or computer systems; (iv) breach of warranty by Customer; (v) breach of this Agreement by Customer; (vi) use of Services by Customer or Customer Affiliates; (vii) negligence, intentional misconduct or other wrongful acts or omissions by Customer; and (viii) Claims alleging that NetWatcher was not authorized to provide Services requested by Customer.

This Section 7 states each party’s exclusive remedies for any third-party claim or action, and nothing in this Agreement or elsewhere will obligate either party to provide any greater indemnity to the other.

8. OFAC Warranty.

Each party warrants to the best of its knowledge that neither it, nor any of its Affiliates or such party’s agents are on any list maintained by the United States Treasury Department’s Office of Foreign Assets Control of persons, entities, or prohibited or restricted jurisdictions. Each party agrees that it will promptly notify the other party in writing if the notifying party becomes aware of any changes to this warranty or if to the notifying party’s knowledge any change is threatened. In such event, the notified party shall have the ability to terminate this Agreement without affording the notifying party an opportunity to cure.

9. Important Additional Terms.

9.1 Privacy Shield.

NetWatcher participates in the Privacy Shield Program sponsored by the United States Department of Commerce.  For more information visit this site:  https://www.privacyshield.gov/welcome.  NetWatcher’s Privacy Policy can be found at http://netwatcher.com/privacy-policy/.

9.2 Subcontracting.

NetWatcher may assign, subcontract or delegate in whole or in part this Agreement, or any rights, duties, obligations or liabilities under this Agreement, by operation of law or otherwise, provided that NetWatcher shall remain responsible for the performance of Services under this Agreement. Otherwise, neither party may assign this Agreement without the permission of the other party, which permission shall not be unreasonably withheld, conditioned or delayed.

9.3 Force Majeure.

Neither party shall be liable to the other party for any failure to perform any of its obligations under this Agreement during any period in which such performance is delayed by circumstances beyond its reasonable control including, but not limited to, fire, flood, war, embargo, strike, terrorism, riot or the intervention of any governmental authority (a “Force Majeure” event). However, in such event, the delayed party must promptly provide the other party with written notice of the Force Majeure event. The delayed party’s time for performance will be excused for the duration of the Force Majeure event, but if the Force Majeure event lasts longer than thirty (30) days, or fifteen (15) business days as to a Force Majeure event delaying Customer’s performance of its payment obligations, the other party may immediately terminate the applicable Service Order and/or SOW by giving written notice to the delayed party.

9.4. Limited Warranty and Disclaimer of Warranties.

9.4.1. Limited Warranty.

NetWatcher warrants that for a period of one year from date of first shipment to Customer that the Sensors will work in accordance with manufacturer specifications.    Customer must contact NetWatcher within this period to request a return material authorization.  All returns are at Customer’s expense and risk. NetWatcher’s sole obligation shall be to replace the defective Sensor with a new or factory refurbished Sensor.  At NetWatcher’s option, it may refund Customer’s purchase price for the defective Sensor.  This shall be Customer’s sole warranty remedy and NetWatcher’s sole warranty obligation.  Upon Customer request, NetWatcher will quote repair costs for out-of-warranty Sensors. You acknowledge and agree that NetWatcher cannot and does not guarantee that the Sensors, or the NetWatcher Website or the Services or any Customer Information, will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy Your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data.

9.4.2 Disclaimer of Warranty.

NETWATCHER WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA NETWORK OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SERVICESS, NETWATCHER’S WEBSITE OR THE SERVICE OR ITEMS PURCHASED OR OBTAINED THROUGH THE WEBSITE OR THE SERVICE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.  NEITHER NETWATCHER NOR ANY PERSON ASSOCIATED WITH NETWATCHER MAKES ANY WARRANTY OR REPRESENTATION TO ANY USER WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, FUNCTIONALITY OR AVAILABILITY OF THE SERVICES OR THE SENSORS. WITHOUT LIMITING THE FOREGOING, NEITHER NETWATCHER NOR ANYONE ASSOCIATED WITH NETWATCHER REPRESENTS OR WARRANTS THAT THE SERVICE OR SENSOR WILL BE RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE SERVICES OR SENSORS WILL OTHERWISE MEET THE NEEDS OR EXPECTATIONS OF CUSTOMER OR ANY USER. EXCEPT FOR THE WARRANTY SET FOR ABOVE, NETWATCHER PROVIDES THE SENSORS, AND ALL OTHER NETWATCHER SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES.  NETWATCHER HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE.

NETWATCHER’S AGGREGATE LIABILITY (WHETHER IN CONTRACT, TORT OR OTHERWISE) FOR ALL CLAIMS OF LIABILITY ARISING OUT OF, OR IN CONNECTION WITH, THE AGREEMENT SHALL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER FOR THE  SENSORS OR SERVICES GIVING RISE TO A CLAIM FOR LIABILITY. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.   THIS SECTION SHALL SURVIVE ANY EXPIRATION OR TERMINATION OF THE AGREEMENT.

9.5 Disclaimer of Liability.

IN NO EVENT WILL NETWATCHER, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SERVICES OR ANY WEBSITES ASSOCIATED WITH IT, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE. THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

9.6 Limitation on Time to File Claims. 

Any cause of action or claim You may have arising out of or relating to these terms of use, the service or the website must be commenced within one (1) year after the cause of action accrues, otherwise, such cause of action or claim is permanently barred.

9.7. Notices.

Notices to NetWatcher under this Agreement must be in writing and sent by email to the address below with read receipt. Attn: Legal@NetWatcher.com

9.8 Governing Law, Forum and Language.

The parties agree that this agreement, any the services hereunder, or any claim, dispute or controversy (whether in contract, tort, or otherwise, whether preexisting, present or future, and including statutory, common law, and equitable claims) between customer and NetWatcher arising from or relating to this agreement, the services, its interpretation, or the breach, termination or validity thereof, the relationships which result from this agreement or any related purchase shall be governed by the laws of the Commonwealth of Virginia, without regard to conflicts of law principles.  The parties agree that any and all claims, causes of action or disputes (regardless of theory) arising out of or relating to this Agreement and/or the Services shall be brought exclusively in the Virginia and United States Courts for Fairfax County, Virginia (the “Courts”). Customer and NetWatcher agree to submit to the personal jurisdiction of the Courts, and agree to waive any and all objections to the exercise of jurisdiction over the parties by such Courts and to venue in such Courts.  This Agreement will be interpreted and construed in accordance with the English language.  This Agreement together with the content of any websites incorporated herein constitute the entire agreement between the parties and supersedes all other documents or statements.

By clicking “I accept the services agreement”, I agree that I have read and understood the NetWatcher Online Master Service Agreement and agree to be bound by its terms, including the online Terms of Service found at netwatcher.com/term-services and corresponding Privacy Policy found at netwatcher.com/privacy-policy.