SaaS Agreement

This SaaS Agreement (this “Agreement”) is made and entered into between Perma Security Incorporated dba Opal, a Delaware corporation (“Opal Security”) and each party (the “Customer”) that executes an Order Form for the Product defined below.  The “Effective Date” of this Agreement is date of Customer’s initial Order Form or the date Customer first accesses the Product, whichever is earlier. Each of Opal Security and Customer is a “Party” and together, the “Parties.” All Order Forms or addenda governed by this Agreement are deemed incorporated into this Agreement. In the event of any conflict between this Agreement, an order form or any addendum, the terms of this Agreement shall control.

1. PRODUCT

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   Rights and Restrictions. This Agreement sets forth the terms and conditions on which Opal Security may make available to Customer (i) the Opal Security hosted software product; and (ii) documentation accompanying the product, including user manuals or other documentation, in whatever form, relating to the product (the “Product”).  Customer will access and use the Product solely in accordance with the restrictions set forth in this Agreement. With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, Opal Security hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services. 

   1. Use Restrictions. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Customer will not, and will not permit or authorize third parties to: (a) permit third parties (or other persons not authorized by this Agreement) to use the Product;  (b) use the Product to provide services to third parties (e.g., as a service bureau); (c) use the Product for any benchmarking activity or in connection with the development of a competitive product; (d) circumvent or disable any security or other technological features or measures of the Product or use the product in a manner that Opal Security reasonably believes poses a threat to the security of Opal Security-controlled computer systems; (e) modify, translate, reverse engineer, decompile, disassemble, or otherwise derive the source code or the underlying ideas, algorithms, structure, or organization from the Product (except to the extent that applicable law prevents the prohibition of such activities); or (f)  use or access the Product in a manner that materially impacts or burdens Opal Security or Opal Security’s servers and other computer systems, or that interferes with Opal Security’s ability to make the Product available to any third party. 

   2. Compliance with Laws. Customer will use the Product in compliance with all applicable laws and regulations, this Agreement and the terms applicable to third-party software or products that accompany the Product.

   3. Protection against Unauthorized Use. Customer will prevent any unauthorized or unlawful access or use of the Product and will immediately notify Opal Security in writing of any unauthorized or unlawful access or use of which Customer becomes aware. Customer will immediately terminate any unauthorized or unlawful use by persons having access to the Product through Customer.

   4. Ownership; Data. As between Opal Security and Customer, Customer retains all right, title, and interest in and to any data Customer makes available to Opal Security, including in connection with Customer’s use of the Product (“Customer Data”). Customer hereby grants Opal Security a non-exclusive, worldwide, royalty-free, fully paid, sublicensable, fully transferable, irrevocable license to access, use, process, transmit, store, and disclose the Customer Data: (a) for the purpose of exercising Opal Security’s rights and performing its obligations under this Agreement; and (b) in perpetuity, in an aggregated form that does not identify Customer as the source thereof, for its business purposes, including to develop and improve Opal Security’s and its affiliates’ products and services. Customer represents and warrants that Customer has all rights necessary to grant Opal Security the licenses set forth in this Section. As between the Parties, Opal Security owns all right, title, and interest, including all intellectual property rights, in and to the Product, and any improvements to any Opal Security products or services made as a result of Opal Security’s use, processing, or generation of Customer Data.  

4. FEES AND PAYMENT

   1. Fees and Payment Terms. Customer will pay Opal Security the fees and any other amounts owing under an applicable order form and this Agreement. Unless otherwise agreed, Customer will pay all amounts due within 30 days of the date of the applicable invoice. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Customer will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Opal Security to collect any amount that is not paid when due. Amounts due from Customer under this Agreement may not be withheld or offset by Customer against amounts due to Customer for any reason.

   2. Taxes. Other than net income taxes imposed on Opal Security, Customer will bear all taxes, duties, and other governmental charges (collectively, “Taxes”) resulting from this Agreement. Customer will pay any additional Taxes as are necessary to ensure that the net amounts received by Opal Security after all such Taxes are paid are equal to the amounts to which Opal Security would have been entitled in accordance with this Agreement if such additional Taxes did not exist. 

5. TERM AND TERMINATION

   1. Term. Unless otherwise agreed, the term of an order form will remain in effect until terminated in accordance with this Section 3 (the “Initial Term”). At the expiry of the Initial Term, the terms of the order form shall automatically renew for a term of 12 months unless written notice is given by one Party to the other Party of its intention not to renew the Agreement at least 60 business days before the expiry of the Initial Term or any subsequent renewed term. Termination of this Agreement will terminate all order forms then in effect, unless agreed otherwise in writing.  

   2. Termination for Material Breach. Either Party may terminate an order form if the other Party does not cure its material breach of the order form terms within 30 days of receiving written notice of the material breach from the non-breaching Party. Termination in accordance with this Section will take effect when the breaching Party receives written notice of termination from the non-breaching Party, which notice must not be delivered until the breaching Party has failed to cure its material breach during the 30-day cure period. Notwithstanding the foregoing, Opal Security may immediately terminate this Agreement upon notice to Customer if Opal Security reasonably believes that Customer has made or distributed any unauthorized copies of the Product, has violated Section 1.2. Without limiting any other provision of this Section, if Customer fails to timely pay any fees, Opal Security may, without limitation to any of its other rights or remedies, suspend access to the Product until it receives all amounts due.

   3. Termination for Bankruptcy or Insolvency. Either Party may terminate this Agreement or one or more order forms if the other Party ceases to do business in the ordinary course or is insolvent (i.e., unable to pay its debts in the ordinary course as they come due), or is declared bankrupt, or is the subject of any liquidation or insolvency proceeding which is not dismissed within one hundred twenty (120) days, or makes any assignment for the benefit of creditors.

   4. Post-Termination Obligations. If this Agreement is terminated for any reason, Customer will pay to Opal Security any fees or other amounts that have accrued prior to the effective date of the termination, any and all liabilities accrued prior to the effective date of the termination will survive.

   5. Survival. Notwithstanding anything to the contrary herein, Sections 1, 2, 3.4, 3.5, 4, 5, 6, 7, and 8 will survive termination or expiration of an order form and this Agreement. 

6. CONFIDENTIALITY

   1. Definition. As used herein, “Confidential Information” means all confidential information disclosed by or otherwise obtained from a Party (“Disclosing Party”) to or by the other Party (“Receiving Party”), whether orally, visually, or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. “Confidential Information” of a Disclosing Party includes such Disclosing Party’s business and marketing plans, technology and technical information, product plans and designs, and business processes. However, “Confidential Information” does not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party. 

   2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, the Receiving Party will (a) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care); (b) not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (c) limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Notwithstanding the foregoing, Opal Security is permitted to disclose Confidential Information of Customer on a need to know basis to employees, contractors, and agents of its affiliates. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. 

7. WARRANTIES AND DISCLAIMER

   1. Limited Opal Security Warranties. Opal Security hereby warrants, for the benefit of Customer only, that the Product will materially conform to the applicable documentation accompanying the Product (the “Product Warranty”) for a period of 30 days after the Product is first made available to Customer (the “Warranty Period”), provided that the Product Warranty will not apply to failures to conform to the applicable documentation to the extent such failures arise, in whole or in part, from any modification of the applicable Product by Customer or any third party or any combination of the applicable Product with APIs, software, hardware, or other technology not provided by Opal Security. If any defect or error covered by the Product Warranty occurs, Customer will provide Opal Security with sufficient detail to allow Opal Security to reproduce the defect or error. If notified in writing by Customer during the Warranty Period, Opal Security will, at its sole option, either: (a) correct such error or defect in the Product, at no cost to Customer and within a reasonable time, by issuing corrected instructions, a restriction, or a bypass; or (b) accept return of the Product and refund any license or subscription fees previously paid by Customer in connection with the Product, and in Customer’s right to use the Product will terminate. The foregoing sentence sets forth Customer’s sole and exclusive remedy for Opal Security’s breach of the warranty described in the first sentence of this Section 5.1. Opal Security is not responsible for any defect or error not reported during the Warranty Period or any defect or error caused by the Product that Customer has modified, misused, or damaged.

   2. Disclaimer. Except for the express representations and warranties stated in this Section 5, Order Form or addendum, Opal Security makes no additional representation or warranty of any kind whether express, implied (either in fact or by operation of law), or statutory, as to any matter whatsoever. Opal Security expressly disclaims all implied warranties of merchantability, fitness for a particular purpose, quality, accuracy, title, and non-infringement. Opal Security does not warrant against interference with the enjoyment of the Product. Opal Security does not warrant that the Product is error-free or that operation of the Product will be secure or uninterrupted. Opal Security does not warrant that any information provided by the Product is accurate or complete or that any such information will always be available.   Opal Security exercises no control over, and expressly disclaims any liability arising out of or based upon the results of, customer’s use of the product.

8. INDEMNIFICATION

   1. Indemnification by Opal Security. Opal Security will, at its expense, indemnify, defend and hold harmless Customer from any claim, proceeding, or suit (“Claim”) brought by a third party against Customer alleging that the Product infringes or misappropriates any third party patent, copyright, or trademark if:  (a) Customer gives Opal Security prompt written notice of the Claim; (b) Customer grants Opal Security full and complete control over the defense and settlement of the Claim; (c) Customer provides assistance in connection with the defense and settlement of the Claim as Opal Security may reasonably request; and (d) Customer complies with any settlement or court order made in connection with the Claim. Customer will not defend or settle any Claim subject to indemnification under this Section 6.1 without Opal Security’s prior written consent. Customer will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Opal Security will have sole control over the defense and settlement of the Claim.

   2. Exclusions from Obligations. Opal Security will have no obligation under this Section 6 for any infringement or misappropriation to the extent that it arises out of or is based upon any of the following (the “Excluded Claims”): (a) use of the Product in combination with other products or services not provided by Opal Security if such infringement or misappropriation would not have arisen but for such combination; (b) the Product is provided to comply with designs, requirements, or specifications required by or provided by Customer, if the alleged infringement or misappropriation would not have arisen but for the compliance with such designs, requirements, or specifications; (c) use of the Product by Customer for purposes not intended or outside the scope of the license granted to Customer; (d) Customer’s failure to use the Product in accordance with instructions provided by Opal Security, if the infringement or misappropriation would not have occurred but for such failure; or (e) any modification of the Product not made or authorized in writing by Opal Security where such infringement or misappropriation would not have occurred absent such modification.

   3. Remedy. If Opal Security becomes aware of, or anticipates, a Claim subject to indemnification under Sections 6.1, then Opal Security may, at its option (a) modify the Product that are the subject of the Claim so that they become non-infringing, or substitute functionally equivalent products; (b) obtain a license to the third-party intellectual property rights giving rise to the Claim; or (c) terminate any affected order forms on written notice to Customer and refund to Customer any pre-paid but unused fees (which, in the case of perpetual licenses, will be calculated based on 3-year straight-line basis).

   4. Limited Remedy. Sections 6.1, 6.2, and 6.3 state Opal Security’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third-party intellectual property right by the Product.

   5. Indemnification by Customer. Customer will indemnify, defend, and hold harmless Opal Security from any actual or threatened third-party Claim arising out of or based upon Opal Security’s access to Customer Data and Customer systems in accordance with its obligations under this Agreement, Customer’s use of the Product, provision of the Customer Data, or breach of any of the provisions of this Agreement, or that is an Excluded Claim. Opal Security agrees to: (a)  give Customer prompt written notice of the Claim; (b)  grant Customer full and complete control over the defense and settlement of the Claim; (c) provide assistance in connection with the defense and settlement of the Claim as Customer may reasonably request; (d) and  comply with any settlement or court order made in connection with the Claim. Opal Security will not defend or settle any Claim subject to indemnification under this Section 6.5 without Customer’s prior written consent. Opal Security will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Customer will have sole control over the defense and settlement of the Claim.

9. LIMITATIONS OF LIABILITY

   1. Disclaimer of Indirect Damages. Notwithstanding anything to the contrary contained in this Agreement, Opal Security will not, under any circumstances, be liable to Customer for consequential, incidental, special, or exemplary damages, including but not limited to lost profits or loss of business, arising out of or related to the subject matter of this agreement, even if opal is apprised of the likelihood of such damages occurring. 

   2. Cap on Liability. Under no circumstances will Opal Security’s total liability of all kinds arising out of or related to this Agreement (including but not limited to warranty claims), regardless of the forum and regardless of whether any action or claim is based on contract, tort, or otherwise, exceed the total amount paid by Customer to Opal Security under an Order Form with respect to which the liability arose during the 12 months immediately preceding the claim (determined as of the date of any final judgment in an action).

   3. Independent Allocations of Risk. Each provision of this Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is to allocate the risks of this agreement between the parties and will apply notwithstanding the failure of essential purpose of any limited remedy in this agreement.

10. GENERAL

    1. Relationship. Opal Security will be and act as an independent contractor (and not as the agent or representative of Customer) in the performance of this Agreement.

    2. Use of Brand Name. Opal Security may use the name, brand, or logo of Customer (or Customer’s parent company) solely for the purpose of identifying Customer as a licensee or customer of Opal Security in a ‘customer’ section of Opal Security’s promotional materials, or as part of a list of Opal Security’s customers in a press release or other public relations materials. Any other press releases or marketing materials referring to the trademarks or logos of Customer shall require mutual approval in writing prior to public dissemination thereof.

    3. Assignability. Neither Party may assign its right, duties, or obligations under this Agreement without the other Party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that Opal Security may assign this Agreement to an affiliate or a successor (including a successor by way of Change of Control or operation of law), or in connection with the sale of all of the assets or business to which this Agreement relates. A Change of Control shall be deemed to cause an assignment of this Agreement. “Change of Control” means a merger, acquisition, divestiture, sale of assets or equity, or similar transaction.

    4. U.S. Government Restricted Rights. The Product may include commercial computer software, as that term is defined in 48 C.F.R. §2.101. Accordingly, if the Customer is the U.S. Government or any contractor therefor, Customer will receive only those rights with respect to the Product as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other U.S. Government licensees and their contractors.

    5. Force Majeure. Neither Party will be liable for, or be considered to be in breach of or default under this Agreement (except for failure to make payments when due) on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or utility failures, earthquakes, fires, storms or other elements of nature, blockages, embargoes, riots, acts, regulations, or orders of any governmental entity, viral outbreak, epidemic, pandemic, civil unrest, acts of terrorism, cyber-attacks or war, so long as that Party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.

    6. Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of California, and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each Party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in San Francisco County, California in connection with any action arising out of or in connection with this Agreement. 

    7. Waiver. The waiver by either Party of any breach of any provision of this Agreement does not waive any other breach. The failure of any Party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such Party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.

    8. Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Product under this Agreement is found to be illegal, unenforceable, or invalid, Customer’s right to use the Product will immediately terminate.

    9. Entire Agreement. This Agreement, including all exhibits, is the final and complete expression of the agreement between these Parties regarding the subject matter hereof. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior nondisclosure or comparable agreement between the Parties executed prior to this Agreement being executed, nor does it affect the validity of any agreements between the Parties relating to other products or services of Opal Security that are not described in an order form and with respect to which Customer has executed a separate agreement with Opal Security that remains in effect. This Agreement may be changed only by a written agreement signed by an authorized agent of the Party against whom enforcement is sought. Opal Security will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Customer in any receipt, acceptance, confirmation, correspondence, or otherwise, unless Opal Security specifically provides a written acceptance of such provision signed by an authorized agent of Opal Security.

(Updated 7/11/2025.)