BY SIGNING THIS MANAGED SECURITY SERVICES PROVIDER SUBSCRIBER AGREEMENT (THE “AGREEMENT”), YOU (THE “SUBSCRIBER” OR “YOU”) ARE ACCEPTING ALL OF THE FINANCIAL SERVICES INFORMATION SHARING AND ANALYSIS CENTER’S ("FS-ISAC”) SUBSCRIBER TERMS AND CONDITIONS (THE “AGREEMENT”) AND AS MAY BE AMENDED BY FS-ISAC FROM TIME TO TIME. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT AND AUTHORITY TO SIGN FOR AND BIND THE ENTITY LISTED IN THE SUBSCRIBER ORDER DOCUMENTS. IF SUBSCRIBER DOES NOT AGREE WITH ANY PROVISION OF THIS AGREEMENT, SUBSCRIBER MUST AND MAY NOT ACCESS OR USE THE SERVICES IN ANY MANNER FOR ANY PURPOSE.
Subscriber agrees to be contacted by FS-ISAC for the purpose of verifying (1) the existence of the company; (2) accuracy of address and physical location; (3) the applying individual is a valid employee of the applicant company with authority to bind the Subscriber; and (4) the applicant company is a member in good standing of a recognized industry trade association or is duly licensed or registered with the applicable regulatory body. Subscriber agrees to promptly, notify the FS-ISAC if Subscriber becomes aware that its eligibility status has changed.
As payment for the Services, Subscriber will pay to FS-ISAC the fees as described in the Order Documents (collectively, the “Fees”). Payment will be made by credit card, ACH or wire bank transfer, or Purchase Order. Purchase Order or PO# information must be provided at time of Agreement. FS-ISAC does not sign Purchase Orders and PO payment terms may not supersede payment terms outlined here. By providing credit card or bank account information to FS-ISAC, Subscriber authorizes FS-ISAC to charge the credit card or debit the account indicated for Annual Fees. Subscriber understands that this authorization will remain in effect until the Termination or until Subscriber cancels the authorization in writing at least 30 days prior to renewal date. Subscriber agrees to notify FS-ISAC in writing of any changes in account information at least 30 days prior to the next billing date. Unless otherwise set forth in the Agreement, all Fees are due annually in advance and are not cancelable or refundable with the first annual payment is due as a deposit at the time of execution of the Subscriber Agreement. Subscriber has 30 days to comply with payment method agreed upon. If any Fees remain unpaid for more than thirty (30) days after the due date thereof, FS-ISAC may suspend provision of all or part of the Services until such unpaid amounts are paid in full. All Fees are stated in U.S. Dollars. Upon at least sixty (60) days’ prior written notice to Subscriber, FS-ISAC may change the Fees stated on the Subscriber Agreement for any renewal term.
All Fees are exclusive of all present and future sales, use, excise, value added, goods and services, withholding and other taxes, and all customs duties and tariffs now or hereafter claimed or imposed by any governmental authority upon the Offerings which shall be invoiced to and paid by the Subscriber. If Subscriber is required by law to make any deduction or withholding on any payments due to FS-ISAC, Subscriber will notify FS-ISAC and will pay FS-ISAC any additional amounts necessary to ensure that the net amount FS-ISAC receives, after any deduction or withholding, equals the amount FS-ISAC would have received if no deduction or withholding had been required. Additionally, Subscriber will provide to FS-ISAC evidence, to the reasonable satisfaction of FS-ISAC, showing that the withheld or deducted amounts have been paid to the relevant governmental authority.
4. TERM AND TERMINATION.
This Agreement is effective upon execution of the Agreement and shall renew annually unless terminated by either party. Subscriber may terminate this Agreement without cause 30 days prior to renewal date.
5. USE OF DATA.
Subscriber hereby grants to FS-ISAC a non-exclusive, non-assignable, non-transferable, royalty-free, revocable, worldwide license to use information provided by Subscriber, including information provided via an FS-ISAC email list server or the FS-ISAC IntelX submission process, ("Subscriber Information"), solely for the purpose contemplated herein. All entities receiving Subscriber Information shall be bound to a confidentiality obligation. FS-ISAC shall not identify Subscriber as the source of Subscriber Information except as provided in this Section 5. Nothing contained herein shall be deemed as granting, whether express or implied, any other license, right, title or interest in and to any of Subscriber’s Confidential Information (defined below) or other information provided or made available by Subscriber. Such license shall include (i) a right for FS-ISAC to disseminate such information to other Subscribers and partners, subject to, and solely in accordance with, the terms and conditions set forth in this Agreement and the Rules (defined below); and (ii) such other sublicense rights as granted herein to FS-ISAC, provided, however, that FS-ISAC and/or other Subscribers shall be prohibited from using the Subscriber’s Information in a manner which attributes it to the Subscriber, unless permitted by the Subscriber, in accordance with the Rules. FS-ISAC information, regardless of medium, must only be given to staff with security, fraud, or critical infrastructure protection responsibilities on a need-to-know basis and strictly in accordance with the Rules. Specifically, Subscriber shall not disseminate or provide access to FS-ISAC information to regulatory examiners; people responsible for formulating or informing public policy, marketing activities, business development; or any other people who do not have a direct need to have and use the information to protect the Subscriber’s data, network, systems, people or facilities. Further, Subscriber shall not disseminate or provide access to FS-ISAC information to customers/clients that are not FS-ISAC members.
Subscriber understands that FS-ISAC will have periodic downtime, although FS-ISAC will use reasonable commercial efforts to minimize downtime and the duration of each instance of downtime.
7. REPRESENTATIONS AND WARRANTIES.
Subscriber represents, warrants and covenants that it is duly formed and existing and in good standing under the laws of the State or Country of its incorporation, if a corporation or formation otherwise.
If a Subscriber is a resident of a country that has ratified by the Berne Convention, then FS-ISAC shall indemnify and defend such Subscribers against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines that are incurred by Subscriber in a final non-appealable judgment arising out of any third-party claim pertaining to the actual infringement of any copyright or trademark arising from the Subscriber’s use of information provided by FS-ISAC.
Each party shall hold in strict confidence, and will not use or disclose to any third party, other than on a confidential basis to its and its affiliate’s directors, officers, employees, consultants, agents and representatives with a need to know such information and who are subject to obligations of confidentiality at least as stringent as those set forth herein (but in no case less than those reasonably employed to protect a company’s confidential information) to effectuate the parties' mutual intent hereunder, any confidential or proprietary data or information obtained from the disclosing party, or to which the receiving party has access, including without limitation with respect to the disclosing party’s business or financial condition, technical information, customer lists or otherwise (collectively, the "Confidential Information"). Information generally known in the industry or otherwise publicly available at the time of disclosure, information that a party can demonstrate was lawfully in its possession prior to the date of disclosure, information which has been disclosed by third parties which have a right to do so, or information developed independently by the receiving party without reference to or use of the Confidential Information, shall not be deemed Confidential Information for purposes of this Section 9. Each party’s obligations pursuant to this Section 9 shall survive the termination of this Agreement for any reason. Each party shall have adequate and appropriate physical measures, policies and procedures to (i) ensure the security and confidentiality of the Confidential Information, (ii) protect against any anticipated threats or hazards to the security or integrity of such Confidential Information, (iii) protect against unauthorized access to or use of such Confidential Information that could result in harm or inconvenience to the disclosing party or its customers and (iv) where possible, ensure the complete, secure and permanent disposal of such Confidential Information, as may be directed by Subscriber or required by applicable law. Each party shall notify the disclosing party promptly if there is any actual or reasonably suspected (a) unauthorized or unlawful access to or disclosure of any Confidential Information, or (b) unauthorized access to any facility, computer network or system containing any Confidential Information (collectively, “Security Incidents”). Where a Security Incident has occurred, the breached party shall promptly take all steps necessary to mitigate the damages caused by the Security Incident.
Neither party may assign this Agreement, or its rights and obligations hereunder, without the prior written consent of the other party except that Subscriber may assign this Agreement or any rights or obligations hereunder to a parent, subsidiary or affiliate upon written notice to FS-ISAC. This Agreement shall be binding upon, and inure to the benefit of, the parties and their respective successors and permitted assigns.
11. LIMITATION OF LIABILITY.
In no event shall either party be liable to the other party or to any third party for incidental, special, punitive, or consequential damages (including without limitation lost profits) arising from acts under this agreement even if such party or subscriber has been advised of the possibility of such damages. Each party’s maximum liability to the other party under this agreement shall be limited to the amounts paid to the other party under this agreement.
12. DISCLAIMER OF WARRANTIES.
ALL INFORMATION PROVIDED BY FS-ISAC IS PROVIDED "AS IS." EXCEPT AS PROVIDED HEREIN, THERE IS NO WARRANTY, EXPRESS OR IMPLIED, THAT ANY INFORMATION ACCESSIBLE ON OR THROUGH FS-ISAC WILL FULFILL ANY OF SUBSCRIBER'S PARTICULAR PURPOSES OR NEEDS. ALL INFORMATION ACCESSIBLE ON OR THROUGH FS-ISAC IS PROVIDED WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH THE USER.
13. RIGHTS AND REMEDIES.
The remedies afforded to the parties in this Agreement are not intended to be exclusive, and each remedy shall be cumulative and shall be in addition to all other remedies available to the parties at law or in equity. This Agreement shall not be construed to confer any rights or remedies upon any person or entity, except FS-ISAC and Subscriber. No delay or omission by any party in exercising any rights or remedies under this Agreement or applicable law shall impair such right or remedy or be construed as a waiver of any such right or remedy.
14. OPERATING RULES AND EULA.
Subscribers agree to the terms and conditions of this Agreement, the FS-ISAC Operating Rules, and the End User License Agreement (collectively, the "Rules"). The Rules are incorporated into this Agreement by reference herein and FS-ISAC reserves the right to revise such Rules from time to time. The Subscriber and its agents may not modify or waive any term of this Agreement.
15. RIGHT TO AUDIT FOR COMPLIANCE.
During the term of this Agreement and upon reasonable notice, FS-ISAC shall have the right to audit and inspect, no more frequently than on an annual basis, those Subscriber systems and documentation related to its use of the Secure Platform and data within to evaluate if Subscriber’s use conforms to this Agreement, the FS-ISAC Operating Rules and the End User License Agreement. Subscriber shall give reasonable access to its systems and records to an independent auditor selected by FS-ISAC, who will audit the system and records and may disclose the results of the audit only to the extent it relates to this Agreement, the FS-ISAC Operating Rules and the End User License Agreement. Should the results of an audit indicate a lack of compliance, Subscriber shall take appropriate action to rectify the situation and provide the FS-ISAC with an opportunity to confirm that Subscriber has become compliant.
16. INTELLECTUAL PROPERTY.
The subscriber shall not incorporate written FS-ISAC Global Intelligence products into their offerings without written permission from the FS-ISAC. FS-ISAC will consider such requests on a case-by-case basis. This does not pertain to the use of the STIX/TAXII feed for monitoring Subscribers’ customer environments.
17. ERRORS AND OMISSIONS.
Subscriber shall show proof that it has errors and omissions insurance in an amount no less than one million dollars that will, defend, indemnify, and hold harmless FS-ISAC and its affiliates, their officers, directors, employees, and agents, from and against all claims, damages, or liability that might arise in connection with unauthorized disclosure or release of any confidential information received in the course of membership in FS-ISAC, including but not limited to data or information regarding or pertaining to FS-ISAC, other members of FS-ISAC, or any other third parties. Such insurance must be effective through the term of this Agreement.
18. DISPUTE RESOLUTION.
Any unsettled controversy or claim between the parties arising out of or relating to this Agreement or any breach thereof shall be settled as follows:
Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content or results of any arbitration without the prior written consent of both parties.
19. NOTICES; NOTIFICATION OF CHANGES.
Any notice required or permitted to be given under this Agreement shall be given in writing and shall be hand delivered, sent by certified or registered mail or sent by overnight courier service to the (a) Subscriber as set forth in this Agreement, or at such address or e-mail address as it may have specified in writing to the FS-ISAC, and (b) to FS-ISAC at the below address or at such location as FS-ISAC shall have specified in writing to Subscriber as its principal office.
FS-ISAC, Inc. - ATTN: Member Services
12120 Sunset Hills Road, Suite 500 Reston, VA 20190 United States
20. INDEPENDENT CONTRACTORS.
Nothing in this Agreement shall make FS-ISAC and Subscriber partners, joint ventures or otherwise associated in or with the business of the other. Service Provider is and shall always remain an independent contractor. Neither party shall be liable for any debts, accounts, obligations or other liabilities of the other party, its agents or employees. The parties are not authorized to incur debts or obligations of any kind, on the part of or as agent for the other except as may specifically be authorized in writing.
21. ENTIRE AGREEMENT.
The provisions of this Agreement, including all documents incorporated herein by reference, such as the Rules, constitute the entire agreement between the parties and supersede all prior agreements and understandings relating to the subject matter hereof.
No failure on the part of one party to exercise, or delay in exercising, any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or remedy by such party preclude any other or further exercise thereof or the exercise of any other right or remedy.
Subscriber may not use FS-ISAC trademarks and service marks and other logos and product and service names of FS-ISAC (collectively “FS-ISAC Marks”). Subscriber agrees not to display or use in any manner FS-ISAC Marks and may not use FS-ISAC Marks to promote Subscriber business. The trademarks and service marks and other logos and product and service names of Subscriber are trademarks of Subscriber (collectively “Subscriber Marks”). Without Subscriber’s prior written permission, FS-ISAC agrees not to display or use in any manner Subscriber’s Marks.