Terms and Conditions
You should carefully read the following Terms and Conditions. Your purchase or use of our products implies that you have read and accepted these Terms and Conditions. I understand that Threat Protector does not guarantee any results and will not be liable for any breaches of your company. All of our products work on “best effort”.
Threat Protectors Breach Secure, HIPAA Secure, Managed SOC and Advanced Email Protector Platform EULA
Not Legal Advice
Corporate Technology Advisors, LLC is not an attorney and the content of the TP Service is not legal advice. The TP Service offers education and a framework to help with compliance. The TP Service does not guarantee cyber security or HIPAA compliance. The Customer should consult with legal counsel to ensure a full legal interpretation of the law. Any consultation services we offer should not be construed as legal advice. It is always up to the customer to ensure compliance with whatever regulations are necessary. We accept no liability for any issues with security that your company has to deal with.
Please read this Agreement carefully before accessing or using the Website or any of our products. By accessing or using any part of the web site, you agree to become bound by the terms and conditions of this agreement. If you do not agree to all the terms and conditions of this agreement, then you may not access the Website or use any services. If these terms and conditions are considered an offer by ThreatProtectors, acceptance is expressly limited to these terms.
You do not claim intellectual property right or exclusive ownership to any of our products, modified or unmodified. All products are property of Corporate Technology Advisors, LLC and ThreatProtectors. Our products are provided ‘as is’ without warranty of any kind, either expressed or implied. In no event shall our company be liable for any damages including, but not limited to, direct, indirect, special, punitive, incidental or consequential, or other losses arising out of the use of or inability to use our products.
Fees and Payment
To purchase any ThreatProtectors Service you must agree to the terms and conditions contained in this Agreement and provide a credit card or other payment method made available by our payment services provider. Corporate Technology Advisors, LLC uses a third party service to accept payments and does not retain any credit card or other payment information in our databases. Payment is due immediately upon order placement.
ThreatProtector may offer consultation services from time to time, especially for clients using our HIPAA compliance platform. ThreatProtector assumes no responsibility under this Agreement other than to perform the Services in good faith, and ThreatProtector will not be responsible for any consequences whatsoever that result from any action of the Company in following or declining to follow any advice or recommendation of ThreatProtector, it being acknowledged and agreed by the Company that ThreatProtector’s services provided under this Agreement are consulting only and any and all decision-making regarding the Company, including without limitation whether or not to follow any advice by ThreatProtector, is solely the responsibility of the Company. ThreatProtector will not be liable to the Company except by reason of acts constituting bad faith of ThreatProtector or willful misfeasance or reckless disregard of its duties. The parties hereto recognize and agree that the effectiveness of the Services and the success of any actions undertaken by ThreatProtector in connection therewith are not guaranteed or warranted by Consultant in any respect whatsoever.
In addition, from time to time ThreatProtector may use 3rd party companies to help with consulting services. In these cases, ThreatProtector will not be liable for any advice they give as outlined above.
Cancelling Your TP Subscription Account
Term Length and Subscription Date:
The term length is based on the term chosen within your order process and (the “Term”) beginning from Effective Date (“Subscription Date”). Any reference to Term shall also include any subsequent renewal Terms.
Early Termination Fee: If a Service in the order is cancelled or terminated in the Order referenced herein, then ThreatProtectors shall charge an early termination fee equal to the total fees owed for the remainder of the Term for any cancelled, terminated, or converted Service, feature, or product. Additionally, if Customer terminates the entire Agreement with ThreatProtectors within the Term, then Customer will pay an early termination fee equal to the total amount owed to ThreatProtectors for the remainder of the Term under the Agreement.
Each of the those who accept this agreement represents that he or she is duly authorized to execute this Agreement on behalf of the party he or she represents. Each party has read, understands, and agrees to the early termination fee outlined in this Agreement.
This Agreement shall continue to apply to any additional services purchased by Customer or changes to existing services made by Customer during the Term. All Services are subject to applicable federal, state, and local taxes, surcharges and fees, and other regulatory fees outlined in the T&Cs (defined below). Such taxes, surcharges and fees are subject to change.
No refunds will be provided unless they are requested within the first 30 days from the date of initial order.
TP Subscription Accounts are prepaid and are non-refundable. TP DOES NOT PROVIDE REFUNDS OR CREDITS FOR ANY PARTIAL MONTHS OR YEARS. You may cancel your TP Subscription Account at anytime, and cancellation will be effective immediately. Should you elect to cancel your TP Subscription Account, please note that you will not be issued a refund for the most recently (or any previously) charged fees. Note: Subscriptions that are cancelled will apply to the next renewal period. No refunds will be provided unless they are requested within the first 30 days from the date of initial order.
The ThreatProtectors Service (“SERVICE”) comprises the following components: (i) the ThreatProtectors Service and all other elements and services of the ThreatProtectors Website. The SERVICE is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The SERVICE is licensed, not sold. By accessing the ThreatProtectors Website and/or Compliance Portal, Customer agrees to be bound by the terms of the SERVICE.
1. PRODUCT LICENSE.
This Agreement describes Customer’s rights with respect to the SERVICE and its components.
A. GRANT OF LICENSE. Subject to the terms and conditions of this Agreement, Corporate Technology Advisors, LLC grants Customer the nontransferable (unless otherwise approved by Corporate Technology Advisors, LLC), nonexclusive right to access and utilize the SERVICE.
2. DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS.
The rights granted in Section 1 are subject to the following restrictions: (i) Customer & Users may not reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code or formulas of the SERVICE; (ii) Customer may not resell or sublicense or use the SERVICE for commercial use, or to train persons other than Employees of the Customer, unless previously agreed to in writing Corporate Technology Advisors, LLC
3. ALL RIGHTS ARE RESERVED BY CORPORATE TECHNOLOGY ADVISORS, LLC
Corporate Technology Advisors, LLC reserves all rights not expressly granted to Customer in this Agreement. Customer acknowledges and agrees that: (i) except as specifically set forth in this Agreement, Corporate Technology Advisors, LLC retains all rights, title, copyrights and interest in and to the SERVICE, Documentation, Derivative Works and Deliverables and Customer acknowledges and agrees that it does not acquire any rights, express or implied, thereon.
Either Customer or Corporate Technology Advisors, LLC may terminate this Agreement at any time. Customer may cancel or terminate their TP Subscription Account by methods described above in the Cancelling Your TP Subscription Account. Corporate Technology Advisors, LLC may terminate this agreement immediately, if Customer fails to comply with the terms and conditions of this Agreement and/or the terms of the Agreement under which rights to license the SERVICE were obtained by Customer. Corporate Technology Advisors, LLC may prevent Customer from accessing the SERVICE by preventing login to the TP website.
5. RESTRICTED RIGHTS
Corporate Technology Advisors, LLC grants Customer only RESTRICTED RIGHTS regarding use of the Information and Website. Use, duplication, or disclosure by the U.S. Government is subject to the restrictions set forth in subparagraph (c)(1) (ii) of The Rights in Technical Data and Commercial Computer Software clause at DFARS 252.227-7013, or subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable. The contractor/manufacturer is Corporate Technology Advisors, LLC
6. LEGAL DISCLAIMER
NONE OF THE INFORMATION CONTAINED WITHIN THIS WEBSITE, OR WITHIN THE TP SERVICE, SHOULD BE REGARDED AS LEGAL ADVICE. THE DISTRIBUTION AND PUBLICATION OF THIS WEBSITE, AND SERVICE MADE AVAILABLE FOR SALE ON THIS WEBSITE, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN CORPORATE TECHNOLOGY ADVISORS, LLC, INC AND ANY WEBSITE USER OR USER OF THE SERVICE. THE AUTHORS PROVIDE THE INFORMATION CONTAINED HEREIN, AND THE INFORMATION CONTAINED IN THE SERVICE, ON AN “AS-IS” BASIS. THE AUTHORS MAKE NO WARRANTIES REGARDING ANY OF THE INFORMATION PROVIDED, AND DISCLAIM ANY LIABILITIES FOR DAMAGES RESULTING FROM ITS USE AS DESCRIBED BELOW.
7. LIMITED WARRANTY.
NO WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CORPORATE TECHNOLOGY ADVISORS, LLC, INC DISCLAIM ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, WITH REGARD TO THE SERVICE, AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES. THIS LIMITED WARRANTY GIVES CUSTOMER SPECIFIC LEGAL RIGHTS. CUSTOMER MAY HAVE OTHERS, WHICH VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION.
8. LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL CORPORATE TECHNOLOGY ADVISORS, LLC, INC BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICE OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF CORPORATE TECHNOLOGY ADVISORS, LLC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, CORPORATE TECHNOLOGY ADVISORS, LLC, INC’S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS LAW SHALL BE LIMITED TO THE GREATER OF THE AMOUNT ACTUALLY PAID BY CUSTOMER FOR THE SERVICE OR US$10.00. BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, THE ABOVE LIMITATION MAY NOT APPLY TO CUSTOMER.
You agree to indemnify and hold harmless Corporate Technology Advisors, LLC, Inc, its contractors, and its licensors, and their respective directors, officers, employees and agents from and against any and all claims and expenses, including attorneys fees, arising out of your use of the Website, including but not limited to out of your violation this Agreement.
10. GOVERNING LAW
This is the entire Agreement between Customer and Corporate Technology Advisors, LLC, Inc relating to your use of the TP Website and SERVICE. The laws of the State of Arizona, shall govern this Agreement, notwithstanding any principles of conflicts of law. Customer agrees that any action at law or in equity arising out of or relating to this Agreement, shall be filed only in state or federal court located in Phoenix, AZ. You hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such action.
ThreatProtectors Endpoint Essentials EULA
These terms apply to purchases of software and digital content, such as download links, license keys, codes, back-up CD’s, etc. (“Products”) sold to any person or entity (“You”) through this website (the “Website”) by Corporate Technology Advisors, LLC. or its Affiliates (“Corporate Technology Advisors” or “We”). IF YOU PLACE AN ORDER ON THIS WEBSITE YOU AGREE TO THESE TERMS.
2.1 Corporate Technology Advisors reserves the right to reject Your order and/or terminate Your subscription if it is unable to process or fulfill it without Corporate Technology Advisors being liable for any damages.
2.2 Upon such rejection Corporate Technology Advisors will refund any prior payment that You have made for that Product.
2.3 You confirm that all information provided by You when placing an order is up-to-date and materially accurate in order for Corporate Technology Advisors to fulfill Your order.
2.4 You are responsible for maintaining and updating Your account information for accuracy and completeness and keeping such information and any passwords secure against unauthorized access.
3. Price and Payment
3.1 Prices are specified on the Website, Corporate Technology Advisors reserves the right to adjust prices due to Increases in costs Including (without limitation) costs of any materials, delivery, the LLCrease or imposition of any tax, duty or other levy and any variation in exchange rates, and programming, data or other errors in Our Website.
3.2 Corporate Technology Advisors will notify You of any errors in pricing prior to Product delivery. In the event of an increase in the price, You have the right to terminate the agreement. If You do not rescind the agreement, You accept the new conditions and prices as notified to You by Corporate Technology Advisors.
3.3 Payment shall be made prior to delivery and by such methods that are indicated on the Website or by any other method expressly agreed between You and Corporate Technology Advisors.
3.4 Corporate Technology Advisors will charge credit or debit cards online after the order is placed and the credit card information is provided to Corporate Technology Advisors.
4.1 Delivery dates specified on the Website, in any order confirmation or elsewhere are estimates only. Corporate Technology Advisors will not be liable in respect of delay but will do its best to ensure the delivery on time.
4.2 Delivery will be made to a valid address submitted by You. You must check the delivery address on the Corporate Technology Advisors acceptance provided to You and notify Corporate Technology Advisors at once about errors or omissions. Corporate Technology Advisors reserves the right to charge You for any extra costs arising from changes You make to the delivery address after You submit an order.
4.3 If You refuse or fail to take delivery of the Products delivered by Corporate Technology Advisors, any risk of loss or damage will pass to You and Corporate Technology Advisors will have the right to receive payment in full for the Products and to make delivery by any means appropriate. You will be liable to pay any additional costs LLCurred as a result of Your refusal or failure to take delivery. Corporate Technology Advisors will be entitled to dispose of the Products in such manner as it sees fit if You have not taken delivery of the Products after 30 days have passed sLLCe the agreed date of delivery.
4.4 You are not entitled to revoke or cancel in whole or in part this agreement with respect to downloaded Products in case of a defect. The risk of loss or damage passes to You upon delivery of the Products.
5. Software Conditions
5.1 Products include Corporate Technology Advisors’s end user license agreement (EULA). Such Products may be used only in accordance with EULA and may not be copied, adapted, translated, made available, distributed, varied, modified, disassembled, decompiled, save, reverse engineered or combined with any other software, unless:
• this is permitted by EULA,
• expressly permitted by applicable law. Subject to Clause 10, Clause 11 and Clause 12 of these Terms the remedies in the EULA shall be Your sole remedies with regard to the Products.
6. Automatic Renewal
6.1 With respect to certain Products We provide You with an option to automatically renew Your agreement. You are electing automatic renewal of the agreement for such Products.
6.2 Each renewal term will be equal in duration to the initial term.
7.1 Under no circumstances and under no legal theory, tort, contract, or otherwise, shall Corporate Technology Advisors or its affiliates be liable for any indirect, special, incidental, or consequential damages, Including loss of profits. Corporate Technology Advisors or its affiliates will be liable solely for damages caused by a breach of a material contractual obligation as a result of Corporate Technology Advisors willful intent or gross negligence.
7.2 The aggregate amount of damages that can be claimed pursuant to this agreement shall not exceed $1000. This limitation of liability applies to all damage claims irrespective of their nature and will continue in force notwithstanding termination of this agreement.
7.3 You shall indemnify Corporate Technology Advisors against any liabilities, claims and costs incurred by or made against Corporate Technology Advisors as a direct or indirect result of selling Products or performing services to Your specifications causing an infringement or alleged infringement of any proprietary rights of any third party. This indemnification obligation does not apply to consumers.
Corporate Technology Advisors can suspend delivery of Products, or terminate this agreement, in case any step, process, application, filing in court, order, proceeding, notice or appointment is taken or made by or in respect of You for a moratorium, composition, compromise or arrangement with creditors, administration, liquidation (other than for the purposes of amalgamation or reconstruction), dissolution, receivership (administrative or otherwise), distress or execution, or if You become insolvent or are reasonably deemed unable to pay Your debts as they fall due, or anything analogous to the foregoing occurs. Corporate Technology Advisors can terminate Your order by a written notice sent to You by email or fax.
9. License to Products
9.1 The License to the Products will pass to You when Corporate Technology Advisors has received full payment for the value of the price of the Products (Including interest or other payment due for the Products).
9.2 You shall not resell the Products.
10.1 You are responsible upon delivery for verifying that Products delivered by Corporate Technology Advisors are in accordance with the agreed specifications with respect to apparent defects, Including short deliveries.
10.2 You must notify Corporate Technology Advisors of any such defect or short delivery in writing within 15 (fifteen) days of delivery.
11. Consumer revocation of an order
11.1 IF YOU ARE A CONSUMER, YOU WILL HAVE A “REFLECTION PERIOD” OF 15 (FIFTEEN) DAYS AFTER DELIVERY DURING WHICH YOU MAY REVOKE YOUR ORDER FOR ANY REASON THROUGH WRITTEN NOTICE TO Corporate Technology Advisors AS SPECIFIED IN CHAPTER 12 – “NOTICE”.
11.2 YOU HAVE NO RIGHT TO REVOCATION: (I) IN RELATION TO SOFTWARE PRODUCTS WHERE YOU HAVE BROKEN THE SEAL OF THE SOFTWARE; OR (II) WHERE YOUR ORDER CAN NOT BE RETURNED BECAUSE OF THE NATURE OF THE PRODUCTS, E.G. A PRODUCT CUSTOMIZED SPECIFICALLY TO YOUR ORDER.
11.3 WITH RESPECT TO DOWNLOADABLE PRODUCTS, YOUR RIGHT OF REVOCATION WILL TERMINATE UPON THE EARLIER OF THE EXPIRATION OF THE REFLECTION PERIOD OR YOUR DOWNLOADING OF THE PRODUCT.
11.4 If You exercise the revocation right, You are required to return the relevant Products to Corporate Technology Advisors and Corporate Technology Advisors will reimburse Your payments. Return shipping of the Products will be at Your own expense. Where incorrect Products have been delivered to You, Corporate Technology Advisors will bear the costs of returning the Products regardless of the value of Your order.
11.5 If You are not able to return the Products or if the Products returned are defective, You are required to pay compensation, equal to the value of the Products. You shall make compensation payments for damaged Products within 30 days after You have notified Corporate Technology Advisors of the revocation of Your order. The Products must be returned to the Corporate Technology Advisors address stated on the delivery note that was accompanied with the Product.
12. Refund Process & Guarantee:
12.1 To cancel an order placed in the Corporate Technology Advisors system refer to our Refund Policy.
12.2 30 Day Money Back Guarantee – Corporate Technology Advisors stands behind its products 100%. Because of this, we offer a no questions asked, 100% satisfaction guarantee where You can request a full refund within 30 days of the purchase date.
13.1 You have the obligation to obtain at Your own expense any license or authorizations required by any legal authority for the acquisition, delivery or use of the Products, evidence of which You must provide to Corporate Technology Advisors upon Corporate Technology Advisors’s first request.
13.2 You will be liable for all expenses or charges incurred by Corporate Technology Advisors stemming from Your failure to obtain such license or authorizations. You are also responsible for complying with export control and custom duties laws and regulations in the territory where You order the delivery of Product or use the Product.
14.1 Any notice or any other communication made in connection with Our contract shall be in written form and considered as duly sent or adequately issued if it is sent by mail, fax or email and is addressed to the contact data specified on the Corporate Technology Advisors Website.
Consumer complaints addressed to Corporate Technology Advisors may be sent to Corporate Technology Advisors, 530-B Harkle Road, Suite 100 Santa Fe, NM 87505.
15. Governing Law
This agreement and any contractual or non-contractual obligations arising out of or in connection to it shall be governed by and shall be construed in accordance with the laws of New Mexico in the United States of America.
You and Corporate Technology Advisors shall attempt to resolve amicably all disputes arising out of or in connection with this agreement within 30 days. If such amiable negotiations fail any such disputes shall be settled by the competent courts of South Dakota. If You are a consumer You may notify Corporate Technology Advisors within one month of Corporate Technology Advisors’ invocation of this term that You wish to settle the dispute before the competent court as determined by applicable law.
17. General Terms
17.1 The provisions of these Terms are separable, the lack of validity of any provision will not affect the validity of any other provision. Your order and these Terms contain the whole agreement between You and Corporate Technology Advisors relating to the transactions contemplated by this agreement and supersedes all previous agreements between You and Corporate Technology Advisors relating to these transactions.
17.2 Corporate Technology Advisors reserves the right to change these terms and conditions from time to time, notification of which will be posted on the Website. Your continued use of the Products after such notice has been posted constitutes Your acceptance of the changes. Any subsequent orders shall be subject to the revised terms and conditions.
17.3 You are not entitled to transfer or assign Your right and obligations under these terms to a third party, without the written approval of Corporate Technology Advisors.
18. Evergreen License
18.1 An Evergreen perpetual license will allow the customer to use the licensed full version of the software indefinitely – for non-commercial purposes.
18.2 The Evergreen perpetual license is nontransferable.
18.3 The Evergreen perpetual license includes all future product and security updates.
All content included on this site, such as text, graphics, logos, button icons, images, audio clips, and software, is the property of Corporate Technology Advisors, LLC. or its content suppliers and protected by U.S. and international copyright laws. Any other use, Including the reproduction, modification, distribution, transmission, republication, display, or performance, of the content on this site, is strictly prohibited.
The failure of Corporate Technology Advisors to exercise any right described here will not be deemed a waiver of any further rights. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or modified to the extent necessary so that this Agreement will otherwise remain in full force and effect.
Managed SOC END USER Master Services Agreement
Our Managed SOC service is offered through our partner Netsurion.
- The following definitions apply to this Agreement:
- “Location or Premises”. Means the physical location or locations from where Customer is utilizing the Services.
- “Reseller” means a third-party that has entered into a reseller agreement with Company for the purpose of reselling Company’s services and products. Reseller is responsible for payment of fees to Company for the Services provided to Customer(s) or End User under this Agreement or any applicable Contract Document(s).
- “Customer” or “End User,” “you” or “your” means the firm, corporation, or other entity that utilizes Company’s Service, Equipment and/or Software, and that is responsible for the payment of charges under, and for compliance with this Agreement.
- “Customer Equipment” refers to equipment that Customer acquires from a source other than Company and is used in conjunction with the Service.
- “Equipment” means equipment at Customer’s Location(s) that is directly provided and/or maintained by Company and used in conjunction with the Services.
- “Services” refers to any services provided to Customer by Company. The current description of the Services is provided at: netsurion.com/description-of-services or https://www.eventtracker.com/svcdesc/. The Description of Services is subject to change.
- “Exhibits” refers to supplementary materials, exhibits, statements of work, work orders, service fee and pricing exhibits and any other documents that describe Company’s services and pricing provided under this Agreement.
- “Subscription License” means a non-sublicensable, non-transferable license, copy of the Software, to be used by Customers or End Users.
- “Software” means Company’s proprietary software, including software as a service.
- “Authorized Use” means use of each Product for which Customer has purchased a subscription, in the manner specified in the Documentation for that Product.
- “Documentation” means any information made available by Company to Customers regarding, Software and services.
- “Product(s)” means any one, or a combination, of (a) Software, (b) Third Party Software, and (c) if provided by Company, computer related hardware.
- “Mark” means the trade name, service mark, brand or trademark of a Party.
- “Party” means a party to this Agreement.
- “PCI-DSS” refers to the Payment Card Industry Data Security Standard which is an information security standard for organizations that handle credit cards. The PCI-DSS standard is mandated by the card brands and administered by the Payment Card Industry Security Standards Council.
- Services and Contract Documents. Services will be provided as indicated on each Statement of Work, Work Order, and/or other applicable contract documents (including Exhibits and addendums), collectively or individually referred to herein as “Contract Document(s)”. By submitting any Contract Document(s), Customer agrees that it immediately becomes a part of and is governed by this Agreement. Company is not obligated to provide any Services until a completed Contract Document(s) has been submitted by Customer and accepted by Company. This Agreement, and any Exhibits and addenda together with any applicable Contract Document(s), governs the services provided by Company to Customer.
- Additional Services outside the scope of this agreement, if any, shall be defined in additional Exhibits. Any Exhibit shall: (i) be signed by the parties; (ii) become part of and governed by this agreement; and (iii) state the pertinent business parameters, including, but not limited to a detailed description of the Services to be provided. The business parameters of an Exhibit shall control as to the engagement described in the Exhibit.
- Changes to the Agreement or conflicting legal terms may only be added by Addendum to this Agreement executed by the Parties.
- Software provided by Company in connection with the Services is identified in the Exhibits and subject to the Software license terms attached hereto and as set forth in the End User License Agreement (“EULA”) located at http://www.netsurion.com/eula. The EULA is subject to change and Customer is responsible for review and compliance with current EULA.
- Company may provide Equipment to Customer to facilitate performance of Services. If any such Equipment fails during the Term of this agreement as a result of a manufacturer’s defect or hardware failure, not caused directly or indirectly by the misuse, abuse, fault or negligence of Customer or a third party, or due to an Act of God, it will be replaced by Company without charge. Title to any Equipment passes to Customer upon shipment (FOB Origin).
- Unless otherwise contracted for, Customer shall be responsible for the installation and setup of all Equipment, Software and Customer Equipment including operating-system patches, or new or different operating-system versions. As specified in the Contract Document(s), Customer shall be responsible for keeping scheduled installation appointments or timely rescheduling. Customer shall be subject to a cancellation fee penalty for the failure to keep a scheduled installation appointment as specified in the Contract Document(s). Remote setup of the Equipment by Company shall take place Monday through Friday, 7:00 a.m. through 7:00 p.m. EST; additional costs may be assessed to Customer for evening and weekend setup and for delays caused by non-standard or incomplete configuration requests.
- Costs at Customer’s Premise. Customer is solely responsible for all costs at its premises, including without limitation, personnel, wiring, computer equipment, Internet access, electrical power and the like, necessary for the use of the Company Services, Equipment and Software. Customer is solely responsible for any third-party fees not specifically covered under this Agreement or any Contract Document(s), including, but not limited to, fees incurred to facilitate installation, Customer’s IT or technical assistance, or any other third-party fees expended.
- In the routine process of managing and maintaining deployed Equipment, Company may occasionally perform remote maintenance activities on Equipment, such as a firmware update etc., that may result in the Equipment being reset and unavailable and/or result in a loss of connectivity for a short period of time. Except in the case of emergency or in the process of troubleshooting a critical service issue, Company will perform this type of work during planned maintenance windows which take place between 1AM and 5AM local time and for which Company will use commercially reasonable efforts to give eight (8) hours or more notice that the maintenance will be performed, and Equipment may be unavailable.
- This Agreement shall be in place so long as there is an active Contract Document(s) under this Agreement. The Contract Document(s) shall state the applicable Term for each piece of Equipment, Software installation or Service. If no Term is specified in the Contract Document(s), then the parties agree that the Term for the subject Contract Document(s) shall be thirty-six (36) months from the execution date of that Contract Document(s). Each Contract Document(s) shall automatically be renewed upon completion of the current Term for a subsequent one (1) year Term, unless terminated by either party upon written notice not later than ninety (90) days prior to the expiration of the current Term. Any termination of a Contract Document(s) shall not modify any rights or obligations of a party hereto which arose prior to such termination.
- Termination of Contract Document(s). Either party may terminate a Contract Document(s) for any reason or for no reason at the end of a Term by giving written notice to the other party not less than sixty (60) days prior to the end of the then current Term. Customer may terminate a Contract Document(s) only in accordance with the termination conditions set forth in this Agreement.
- Early Termination. If Customer desires to terminate a Contract Document(s) prior to the end of a Term (“Early Termination”), Customer shall give Company notice, pursuant to Section 23 of its intent to terminate early. Termination shall not relieve Customer of the obligation to pay any Fees accrued or payable to Company prior to the effective date of termination. Customer shall also be responsible for paying an early termination charge equal to the charges due for the remaining months in the then current Term of any applicable Contract Document(s).
- Termination for Breach. Either party may terminate this Agreement at any time by giving thirty (30) days written notice (“Breach Notice”) of termination to the other party in the event that the other party: (i) materially breaches the terms or conditions of this Agreement including, but not limited to, payment of the Monthly Service Fee, and fails to remedy such breach within thirty (30) days of the date of the Breach Notice; or (ii) becomes insolvent, makes an assignment for the benefit of creditors, is adjudged bankrupt, or if a receiver is appointed over such party’s assets. In the event Company terminates this Agreement due to Breach, Customer agrees to pay an early termination charge of the remaining months in the current Term of all Contract Document(s) terminated for breach. Company may require an activation fee to change or resume a terminated or suspended Account.
- Termination of Agreement Between Reseller and Company. Should the Reseller Agreement terminate for any reason prior to its expiration date, Customer expressly understands and agrees that the Contract Document(s), along with this Agreement, shall survive with no interruption and Customer shall pay Company directly for Services provided. Company is not liable for any liability of Reseller to Customer.
- Effect of Termination. Upon termination of this Agreement or any Contract Document(s), all rights and licenses granted hereunder shall cease, except as otherwise provided in this Agreement. Further, each party shall promptly return to the other, or destroy, the original and all copies of any and all Confidential Information of the other Party. The configurations, policies, access credentials, VPN certificates and other similar items established or managed by Netsurion on all devices provided to Customer to deliver the Services are Netsurion’s proprietary intellectual property and will be removed from all managed devices upon termination.
- Self-Managed Services. Unless indicated in the Contract Document(s) as “Managed” or “Co-Managed”, all Services are assumed to be Self-Managed by the Customer.
- Pricing; Installation; Ancillary Charges; Operation. Pricing and services are as agreed to in the Agreement between Reseller and Customer. Beyond the remote configuration of any equipment needed by Company to provide its Services, Reseller or Customer will install all equipment, data wiring/cabling, and/or software necessary to carry into effect the services contemplated by this Agreement. Unless otherwise indicated on a Contract Document(s), Reseller or Customer shall be responsible for the physical installation and setup of all Equipment and Customer Equipment including software, operating-system patches, or new or different operating-system versions. Any additional expenses incident to installation use of Company’s Services or involving any third-party labor or consulting fees contracted for by Reseller or Customer are not the responsibility of Company. Customer will cooperate with Company to ensure Company’s ability to provide the services contemplated in this Agreement.
- Managed Network Security Services.
11.2.1. In the course of providing the deliverables, Company may be given access to, or be provided with, confidential information about Customer’s business and/or Customer’s website (“Business Information”), and personal information about Customer, Customer’s employees, Customer’s account and/or card holders and/or Customer’s website (“Personal Information”). Customer authorizes such access and disclosure of Customer’s Business Information to Company. To the extent Company has a relationship with the corporate office or with franchisor, Customer agrees that Company has the ability to share network information, including but not limited to configurations, status, network mapping, segmentation, PCI DSS scan results, logs and other relevant network information with the corporate office or franchisor (if applicable). Company agrees that customer and/or consumer PII is specifically excluded from this permission. Company may provide UTM filtering Services, and if such Service is purchased, Customer acknowledges that Business Information or Personal Information may transmit through Company’s centralized system. No Business Information, Personal Information, or cardholder data is intentionally seen by Company, and no Business Information, Personal Information, or cardholder data will be shared within this process without prior authorization.
11.2.2. Company will use reasonable efforts to keep Customer’s Business Information confidential and will not disclose Customer’s Business Information to any third party. To the extent that access to Personal Information by Company occurs, Customer authorizes such access and authorizes Company to use such Personal Information for the sole purpose of providing the services contemplated by this Agreement. Company will not use any such Personal Information for any other purposes than those specifically related to providing the services contemplated by this Agreement. As a Service Provider as defined under PCI-DSS regulations, Company acknowledges it is responsible for the security of cardholder data that it possesses, stores, processes, or transmits on behalf of the customer, or to the extent it impacts the security of the customer’s cardholder data environment. Customer acknowledges that it is responsible for the security of cardholder data that is in its possessions or that it stores, processes, or transmits while it is in Customer’s possession or care. Customer further acknowledges that it is responsible for complying with any applicable regulations and that these obligations are waived in the event Customer self-manages its system.
11.3. Responsibility for PCI-DSS Compliance and Network Security. Company supplies Equipment and/or Software and when contracted, may provide management or co-management Services. In managed or co-managed engagements, Company establishes security configurations and policies in consultation with the Customer and based on PCI-DSS recommendations and generally accepted industry best practices. Customer acknowledges that Company will honor Customer requests to configure Equipment in ways that may be contrary to Company’s or PCI-DSS recommendations or may not adhere to generally accepted data security best practices. Customer acknowledges that Company has no liability for any issues that may arise due to the fulfilment of these requests. In accordance with PCI-DSS standards, Company recommends segmentation of the card data environment (CDE) to isolate it away from all other segments containing non-CDE network traffic. Company does not recommend opening ports to allow traffic or access for non-business-related needs, including, by example, the use of insecure remote access tools. If Company is providing FIM or other SIEM-based Software, Customer is solely responsible for the review, download, and distribution of scans and logs unless specifically stated in the Contract Document(s) that Company will provide managed SIEM services. Company provides limited advisory services to assist with the completion of PCI-DSS. Notwithstanding the aforementioned, Company does not warrant or assume any legal liability or responsibility concerning Customer’s compliance with the PCI Data Security Standard. Companyis not responsible for the completion of Customer’s Self-Assessment Questionnaire (SAQ), the filing or refiling of failed external ASV scan exceptions, the failure of scans due to customer premise IP address changes, or any other PCI-DSS requirement that requires Customer’s action or attestation. Company may however, under certain circumstances agree to launch an ASV scan(s) on behalf of Customer and/or to file or re-file external ASV scanning exceptions on behalf of Customer (provided Customer has demonstrated a reasonable basis for the exception). Further, Customer acknowledges and agrees that Customer’s use of Company’s services does not guarantee PCI-DSS compliance or that the implementation of those services alone will make Customer’s systems secure from unauthorized access. Customer is responsible for PCI-DSS compliance and notification of any suspected breach of its systems. Company is not responsible for any fines, penalties or registration fee imposed by any payment card association or its acquiring bank for Customer’s failure to be PCI-DSS compliant.
11.4 Cellular Data Carrier notice of Limitations on the Cellular Service.
11.4.1. If applicable, Customer acknowledges that cellular service is made available only within the operating range of the networks. Service may be temporarily refused, interrupted, or limited because of: (a) facilities limitations; (b) transmission limitations caused by atmospheric, terrain, other natural or artificial conditions adversely affecting transmission, weak batteries, system overcapacity, movement outside a service area or gaps in coverage in a service area and other causes reasonably outside of cellular data carrier’s control such as, but not limited to, intentional or negligent acts of third parties that damage or impair the network or disrupt service; or (c) equipment modifications, upgrades, relocations, repairs, and other similar activities necessary for the proper or improved operation of service.
11.4.2. Networks are made available by cellular data carrier as-is and they make no warranties or representations as to the availability or quality of roaming service provided and will not be liable in any capacity for any errors, outages, or failures of networks.
11.5 . Data Breach Financial Protection Program. If applicable, The Data Breach Financial Protection Program (“DBFP”) is provided through the North American Data Security Risk Purchasing Group (“NADSRPG”) and administered by RGS Limited LLC (“RGS”). Customer locations subscribing to a Netsurion Service that includes the DBFP must provide Netsurion with a valid merchant ID number (“MID”) for each Customer location to facilitate enrollment of that location in the program. It is the Customer’s obligation to provide MID numbers to Netsurion for each location and Customer understands that locations will not be enrolled in the program if a valid MID number is not provided. Customer further understands that locations that do not subscribe to a Netsurion service that includes the DBFP are not eligible for enrollment in the DBFP. General information relating to the DBFP may be found at: http://www.netsurion.com/DBFP. Full details and the terms of the Program are set out at www.nadsrpg.com. By entering this Agreement Customer confirms he/she has read and agrees to the terms of the Program describing the limitations and requirements relating to coverage and claims (including requirements to be satisfied in order for payments to be made under the DBFP). The DBFP’s standard policy provides levels of up to $100,000 per MID/$500,000 per Merchant of coverage per breach occurrence subject to the terms and conditions set out on the webpage. The total liability in relation to the DBFP is limited to the Program’s stated amount of coverage. Customer hereby acknowledges that Company is not an insurer and is merely facilitating access to the DBFP by providing MID reporting and payment services for Customer in connection with provision of the Services hereunder, and Company shall in no way be held liable or responsible for any loss or damage of Customer or any merchant arising in connection with the Program.
- Company represents, warrants and covenants that:
- Company owns all Software or, to the extent that any Software includes any content, features or components owned by a third-party, Company has all necessary license rights from such third party, such that Company may grant to Customer the licenses to the Software contemplated by this Agreement free from any restrictions that are inconsistent with such licenses to Customer;
- Hardware/Equipment. Company shall pass all third-party product warranties and IP rights to Customer for any hardware and/or equipment provided to Customer;
- All Services to be provided under this Agreement shall be performed promptly, diligently, in a good and workmanlike manner and in accordance with industry standard;
- In the course of providing the Services, it will not introduce any Virus into the information technology environment of Customer. “Virus” means any program code, programming instruction or set of instructions intentionally constructed for the purpose of damaging, interfering with or otherwise adversely affecting computer programs, data files or operations. In the event a Virus is found to have been introduced by Company into the information technology environment of Customer, Company shall use commercially reasonable efforts, at no charge to Customer, to assist Customer in eradicating and mitigating the effects of the Virus; and
- If Company is unable to correct any breach of Section 12 within thirty (30) days after written notice from Customer, Customer has the option to terminate this Service Agreement. If this option is exercised, Customer shall uninstall Company software components within a reasonable period of time.
- DISCLAIMER AND EXCLUSIONS. EXCEPT AS EXPRESSLY STATED IN SECTION 12 HEREIN, COMPANY (INCLUDING ITS AFFILIATES, SUPPLIERS, SUBCONTRACTORS, EMPLOYEES AND AGENTS) PROVIDES SERVICES “AS IS” AND MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES, WRITTEN OR ORAL, AND ALL OTHER WARRANTIES ARE SPECIFICALLY EXCLUDED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTY RELATING TO THIRD-PARTY PRODUCTS OR THIRD-PARTY SERVICES, ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE, AND ANY WARRANTIES OR AGREEMENTS WITH RESPECT TO THE SCOPE OF SERVICES OR THE RESULTS THEREOF WHICH ARE NOT EXPRESSLY STATED IN THIS AGREEMENT. NOTHING HEREIN IS INTENDED TO CONSTITUTE OR CREATE ANY REPRESENTATION OR WARRANTY BY COMPANY TO ANY THIRD PARTY, (INCLUDING END USERS), DIRECTLY OR AS A THIRD-PARTY BENEFICIARY, WITH RESPECT TO ANY OF THE SERVICES PROVIDED HEREUNDER.
- Intellectual Property
- Company shall retain and own all right, title and interest and all Intellectual Property in and to the Services and nothing herein shall be construed to transfer or convey to the Customer any ownership, right, title or interest in or to the Service or any Intellectual Property or any license right with respect to same not expressly granted herein. Customer agrees that all inventions, ideas or processes developed or conceived by Company or any employee, agent or contractor of Company contained in any Customer-purchased Company Equipment or in connection with the performance of Services shall be the sole property of Company or shall be and are hereby assigned to Company, and shall not be deemed a “work made for hire” Customer hereby expressly covenants that it will not disclose anything about Company’s intellectual property or allow any physical access to Company’s intellectual property.
- License Grant. Subject to the terms and conditions of this Agreement, including the payment of applicable fees, Company grants Customer a non-exclusive, non-transferable, non-sub-licensable right to access and use the Services for the purpose for which they are made available to Customer in strict accordance with the deliverables provided to Customer by Company in connection with the Services and any applicable Exhibit.
- Customer agrees that neither Company nor Reseller shall have any liability for infringement of a patent or copyright by the Equipment or Software, or that the Equipment or Software embodies trade secrets misappropriated by the Company, where such infringement or misappropriation results from combination with any other software, material or equipment.
- Limitation on Liability.
- Limitation on Direct Damages. COMPANY’S TOTAL AGREEGATE LIABILITY (INCLUDING THE LIABILITY OF ANY AFFILITATE, SUPPLIER, EMPLOYEE OR AGENT OF COMPANY), AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF ANY TYPE WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH ANY SERVICES PROVIDED HEREUNDER, SHALL BE LIMITED TO PROVEN DIRECT DAMAGES CAUSED BY COMPANY IN AN AMOUNT NOT TO EXCEED THE FEES PAID BY RESELLER TO COMPANY FOR THE SPECIFIC SERVICES FROM WHICH SUCH CLAIM ARISES IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO A CLAIM HEREUNDER. UNDER NO CIRCUMSTANCES IS COMPANY LIABLE FOR SERVICE FAILURES THAT ARE BEYOND THE REASONABLE CONTROL OF COMPANY.
- No Indirect Damages. IN NO EVENT SHALL COMPANY HAVE ANY LIABILITY TO RESELLER, CUSTOMER OR ANY THIRD-PARTY FOR ANY LOST PROFITS, LOSS OF DATA, LOSS OF USE, COSTS ASSOCIATED WITH INTEGRATION, INTERRUPTION OF BUSINESS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. COMPANY SHALL HAVE NO LIABILITY RELATING TO CUSTOMER’S FRAUDULENT LOSSES.
- Liability Exclusions.
14.3.1. Managed Firewall/SD-WAN Exclusions. If managed firewall or SD-WAN services are applicable to this Agreement, in no event shall Company have any liability to Reseller, Customer or any third-party for any data breach that occurs: (a) during any period in which the Company-provided or Company-approved firewall has yet to be initially connected or is disconnected or has been circumvented; (b) due to the failure to implement a security measure as recommended by PCI-DSS Standards; (c) in any Reseller or Customer environment where POS system data traffic is not configured to be on an isolated network segment through the Company firewall; (d) when Partner or Customer requests that the isolated network segment containing POS data traffic is granted access to any system or service not directly related to processing POS transactions; (e) When Customer or Franchisor (if applicable) mandates implementation of a configuration, policy or procedure that Company recommends against; (f) through any firewall in use, whether provided by Company or otherwise acquired by Customer, that has not passed its most recent Approved Scanning Vendor’s scan; (g) in any environment where Reseller or Customer manages the Equipment through a Portal provided by Company to do so; or (h) in a manner that industry-standard fire-wall technology employed at time of breach is not able to prevent.
14.3.2. ASV Scan Exclusion. Company may agree to launch certain ASV scans and/or file or re-file external ASV scanning exceptions on behalf of the Customer following a specific request from Customer. In no event shall Company have any liability to Reseller, Customer or any third-party related to launching said scan(s) or for filing or re-filing external ASV scanning exceptions on behalf of Customer. Customer is solely responsible for the validity of the information pro-vided to Company in support of the filed exception(s). Reseller and Customer further agree to defend and indemnify Company in the event said information is inaccurate or changes without proper notification to Company.
14.3.3. VoIP Exclusion. In no event shall Company have any liability to Reseller, Customer or any third-party for Customer’s VoIP system performance, including, but not limited to phone registration failures, call quality, dropped calls or other issues regardless of whether the VoIP traffic is configured to pass through the Company Equipment. Reseller and Customer acknowledge that Company does not provide and does not manage Customer’s Internet circuit and is not responsible for the performance of said circuit and assumes no liability for is-sues with Internet speed or performance related to the Internet circuit. Furthermore, Reseller and Customer acknowledges that if their Internet connectivity is not a terrestrial (land-based) high-speed always-on cable, broadband, fiber, or dedicated circuit (i.e. T1 or similar), Company services may not perform optimally and that under such circumstances Company shall have no liability to Customer for issues caused by any inadequate or faulty Internet circuit. Reseller and Customer acknowledge that if cellular data services are utilized by Customer, either for backup or primary connectivity, by a third-party, not covered under in this Agreement, Company shall not be responsible for any charges, including overage charges, incurred by Customer associated with the use of those services, including but not limited to circumstances where the data flows through the Equipment and/or the Equipment is managed or co-managed by Company to accommodate failover/failback or restrict the flow of said data.
14.3.4. Cellular Usage and Over Charge Fees. Customer understands that there is a probability that an over usage will result when any traffic traverses a cellular backup circuit. Customer understands that it is solely responsible for paying any and all overage fees and associated taxes and fees that result from over usage associated with any of their devices, activated or not at the time of invoicing, regardless of the circumstances that caused the over usage to occur.
- SIEM Disclaimer. If SIEM services are applicable to the agreement, Company may perform remediation actions based on responses to certain thresholds and configurations pre-determined by Company and Customer or Reseller. Customer recognizes and acknowledges that threats are constantly evolving and emerging, and while Company will take commercially reasonable actions to modify its software as necessary, this Service is not a guarantee or warranty that a system cannot or will not be breached. Company Services are intended to be a component of a broader network security platform. Further, Company does not guarantee or warranty that there will not be unintended consequences related to remediation actions, including but not limited to termination of systems, applications or processes believed to be malicious activity.
- Company shall not be liable for claims based on modifications or adaptations performed by anyone other than Company or its representatives. In addition, Company shall not be liable for claims based on the failure to install, properly install, or re-install a sensor on a Customer endpoint, as installation of sensors is solely Customer’s responsibility. Further, Company shall not be liable for any claims including, but not limited to, claims for infringement for equipment not manufactured by and/or owned by Company.
- High-Risk Use. Customer shall not use the software in any application or situation where a software failure could lead to death or serious bodily injury of any person, or to severe physical or environmental damage (“high risk activities”). Company and its licensors specifically disclaim any express or implied warranty of fitness for high-risk activities, and Company and its licensors shall have no liability of any nature as a result of any such use of the software.
- The foregoing limitations, exclusions and disclaimers shall apply, regardless of whether the claim for such damages is based in contract, warranty, strict liability, negligence, tort or otherwise. Insofar as applicable law prohibits any limitation herein, the parties agree that such limitation will be automatically modified, but only to the extent so as to make the limitation permitted to the fullest extent possible under such law. The parties agree that the limitations on liabilities set forth herein are agreed allocations or risk constituting in part the consideration for Company’s provision of Services to Customer, and such limitations will apply notwithstanding the failure of essential purpose of any limited remedy and even if a party has been advised of the possibility of such liabilities.
- Force Majeure. Netsurion is not liable for failure to perform its obligations, if such failure is as a result of: (i) acts of God (including but not limited to fire, flood, earthquake, storm, hurricane, typhoon or other natural disaster); (ii) war, riot, invasion, act of foreign enemies, hostilities (regardless of whether war is declared); (iii) civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, explosion; (iv) contamination by radio-activity from any nuclear fuel, or from any nuclear waste from the combustion of nuclear fuel, radio-active or toxic explosive; (v) nationalization, government sanction, blockage, embargo, labor dispute, strike, lockout, boycott; or (vi) slowdown or interruption or failure of electricity or telephone service, acts of state or governmental action prohibiting or impeding from performing its respective obligations under the contract.
- Exclusive Remedy. This section states the exclusive remedy for any cause whatsoever against Company, regardless of the form of action, whether in contract or tort, including without limitation, Company’s entire liability to all users of the Services or Equipment.
- Restraint and Non-Solicitation. Customer agrees that while this Agreement is in force and for a period of one (1) year thereafter, it will not: i) hire, employ, engage or directly or indirectly solicit for employment or engagement any individual who is an employee or consultant of Company or otherwise seek to adversely influence or alter such individual’s relationship with Company; (ii) cause, induce or encourage any material actual or prospective client, Customer or supplier of Company to terminate or reduce (or otherwise modify in a manner adverse to Company) any such actual or prospective relationship; or (ii) interfere with the relationship between Company and its End Users, employees or suppliers. Should Customer violate this provision, Customer shall pay the Company, as liquidated damages, an amount equal to fifty percent (50%) of the annual salary paid to the affected employee plus any costs or expenses (including reasonable attorneys’ fees) incurred by Company in enforcing this provision.
- General. If a party (the “Receiving Party”) obtains access to Confidential Information (as defined below) of the other party (the “Disclosing Party”) in connection with the negotiation or performance of this Agreement, the Receiving Party agrees: (i) not to directly or indirectly disclose the Confidential Information to any third-party except as contemplated by this Agreement; and (ii) to use the Confidential Information only to perform its obligations and exercise its rights under this Agreement. The Receiving Party shall use at least the same degree of care to protect the Confidential Information of the Disclosing Party from unauthorized disclosure or access that the Receiving Party uses to protect its own Confidential Information, but not less than reasonable care. The Receiving Party shall promptly notify the Disclosing Party of any actual or suspected loss or unauthorized use, disclosure of or access to the Disclosing Party’s Confidential Information of which it becomes aware and take all steps reasonably requested by the Disclosing Party to limit, stop or otherwise prevent such loss or unauthorized use, disclosure or access.
- Confidential Information. “Confidential Information” shall mean: (i) all information about or belonging to the Disclosing Party or a third-party that is disclosed or otherwise becomes known to the Receiving Party in connection with this Agreement and that is not a matter of public knowledge; (ii) all trade secrets, customer information and intellectual property owned or licensed by the Disclosing Party; and (iii) all Personally Identifiable Information (as defined below) contained in the Disclosing Party’s records. The terms of this Agreement are the Confidential Information of both parties, which may be disclosed by a party, only to the extent reasonably necessary, to its legal and financial advisors and to subcontractors or other third parties that will be providing services in connection with the Agreement and who are under an obligation to protect the confidentiality of the Confidential Information.
- Any particular information of the Disclosing Party shall not be considered Confidential Information if it: (a) was previously rightfully known by the Receiving Party free of any obligation to keep it confidential; (b) is or becomes publicly known through no wrongful act of the Receiving Party; (c) is independently developed by the Receiving Party without reference to the Confidential Information of the Disclosing Party; or (d) is subject to disclosure pursuant to a subpoena, judicial or governmental requirement, or order, provided that the Receiving Party has given the Disclosing Party sufficient prior notice of such subpoena, requirement, or order, to permit the Disclosing Party a reasonable opportunity to object to the subpoena, requirement, or order and to allow the Disclosing Party the opportunity to seek a protective order or other appropriate remedy.
- No Implied Licenses. Nothing contained in this Section 16 shall be construed as obligating a party to disclose its Confidential Information to the other party, or as granting to or conferring on a Party, expressly or impliedly, any rights or licenses to the Confidential Information of the other party. Nothing contained in this Section 16 shall be construed as limiting or diminishing in any respect the scope of any licenses granted under this Agreement.
17.1. Indemnity by Company. If the Services, Software or any deliverable (an “Indemnified Item”) becomes, or in Company’s reasonable opinion is likely to become, the subject of an infringement or misappropriation Claim, the Company will indemnify, and, in its sole discretion, defend, Customer for suits or actions against Customer that claim (i) direct infringement of a patent or copyright by the Equipment or Software or that the Equipment or Software embodies trade secrets misappropriated by the Company, and (ii) such infringement or misappropriation is against the Software and/or Equipment alone (an “Indemnified Item”) and not in combination with any other software or equipment.
17.2. Remedies. Company may, at its sole discretion and at its expense: (i) secure the right of continued use of the Indemnified Item, or (ii) replace or modify the Indemnified Item to make it non-infringing or without misappropriation, or (iii) if neither of the foregoing can be accomplished by Company, and only in such event, then upon at least 180 days’ prior written notice to Customer, Company may terminate the this Agreement. Upon such termination, Company will promptly refund all license and maintenance fees paid by Customer for the then-current term or renewal term of the Exhibit pursuant to which the Software was provided, and any prepaid Service charges and fees for the affected deliverable.
17.3. Exclusions. Customer hereby acknowledges that, notwithstanding anything to the contrary in this Agreement, Company shall not be responsible to indemnify Customer for any Claims asserted by any third-party, or by Customer, in connection with third-party software, open source material, or Equipment obtained from a third-party by Customer, or Equipment not owned or manufactured by Company.
17.4. Conditions. As a condition of Company’s obligations under this Section17, Customer must: (i) provide Company with prompt written notice of any claim of infringement by an Indemnified Item; (ii) agree to Company exercising sole control over the defense and settlement of any such claims; and (iii) provide full and timely cooperation at Company’s request.
17.5. This Section 17 shall be subject to the Limitation of Liability Section 14 herein.
- Government Regulations. The Services and technology delivered in connection therewith pursuant to this Agreement and/or any Exhibit or Addendum entered into hereunder may be subject to governmental restrictions on: (i) exports from the U.S.; (ii) exports from other countries in which such Services and technology may be provided or located; (iii) disclosures of technology to foreign persons; (iv) exports from abroad of derivative products thereof; and (v) the importation and/or use of such technology included therein outside of the United States (“Export Laws”), including but not limited to, the Export Administration Regulations (“EAR”) maintained by the United States Department of Commerce, including the requirement for obtaining an export license, if applicable. Diversion contrary to Export Laws is expressly prohibited. Customer shall, at its sole expense, comply with all Export Laws. Customer represents that it is not a Restricted Person, which shall be deemed to include any person or entity: (1) located in or a national of Cuba, Iran, Libya, North Korea, Sudan, Syria, or any other countries that may from time to time, become subject to U.S. export controls for anti-terrorism reasons or with which U.S. persons are generally prohibited from engaging in financial transactions; or (2) on any restricted person or entity list maintained by any U.S. governmental agency. Certain information, products or technology may be subject to the International Traffic in Arms Regulations (“ITAR”). This information, products or technology shall only be exported, transferred or released to foreign nationals inside or outside the United States in compliance with ITAR at Customer’s sole cost and expense. All software licensed under this Agreement is a “commercial item,” as that term is defined in 48 C.F.R. §2.101, consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. §12.212, and is provided with “Restricted Rights”. Consistent with 48 C.F.R. §12.212 and 48 C.F.R. §227.7202-1 through 227.7202-4, all U.S. Government end users acquire all software only with the rights set forth therein along with the terms of this Agreement. Reseller agrees to comply with all applicable export and re-export control laws and regulations, including Reseller agrees to indemnify Company, to the fullest extent permitted by law, from and against any fines or penalties that may arise as a result of Reseller’s breach of this provision. This export control clause shall survive termination of this Agreement.
- Third-Party VirusTotal Service. Certain aspects of the Services can be enhanced or expedited by connecting Customer’s instance of the Service with VirusTotal. Customers are required to obtain their own API key from VirusTotal in order for their data to be sent to VirusTotal, and the VirusTotal API key must be input by Customer into the Services. Customers are responsible with complying with all terms and conditions of VirusTotal, and the results of any queries and lookups (“VirusTotal Data”) is the property of Customer. Customers grant Company the exclusive rights to review and use Customer’s VirusTotal Data as part of the Services. Company does not market any of its products as a replacement for antivirus software, and information provided by VirusTotal should not be considered an adequate replacement for an antivirus application. Company is not affiliated with VirusTotal in any manner and nothing in this Agreement shall in any way affect any rights of VirusTotal
- No Benefit to Others. The representations, warranties, covenants, and agreements contained in this Agreement are for the sole benefit of the parties and their respective successors and permitted assigns, and they are not to be construed as conferring any rights on any other persons.
- This Agreement may be assigned by Company at the sole discretion of Company. Customer may assign this Agreement only after Notice to Company and with Company’s express written permission, which permission Company shall not unreasonably deny, condition, or delay.
- Integration; Amendment; Headings; Construction; Counterparts. This Agreement contains the entire agreement of the parties and there are no other promises or conditions in any other agreement, oral or written. This Agreement supersedes any prior written or oral agreements between the parties. This Agreement may be amended only if the amendment is in writing and is signed by both parties. The headings used in this Agreement are for convenience of reference only and form no part of this Agreement. This Agreement was negotiated by the parties, and, therefore, it shall not be strictly construed against either party as the drafter. This Agreement may be executed in one or more counterparts; if so, all counterparts constitute one agreement.
- All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) upon receipt of overnight mail during business hours or the third business day after mailing using postal service first class mail; (iii) 24 hours after sending by confirmed email; or, for operational issues, to Customer at the email address given by Customer to Company. Notices to Company shall be addressed to the attention of its VP, Customer Service, with a copy to its In-House Counsel at the address set forth in the first paragraph of this Agreement. Notices to Customer are to be addressed to Customer at the address set forth in the first paragraph of this Agreement. A party can change the address for receipt of notice by sending written notice to the other party.
- Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
- If any provision of this Agreement is held by a court or arbitrator of competent jurisdiction to be contrary to law, the provision shall be changed by the court or arbitrator and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect, unless the modification or severance of any provision has a material adverse effect on a party, in which case such party may terminate this Agreement by notice to the other party.
- Governance; Venue; Dispute Resolution. This Agreement is governed by the law of Florida, and venue concerning any disputes arising hereunder is Broward County, Florida. The exclusive remedy for non-billing and payment disputes between the parties arising from or relating to this Agreement is arbitration conducted by a single arbitrator assigned by the American Arbitration Association (“AAA”) and conducted under the AAA Commercial Rules to the extent not overridden by the following rules of this provision. Arbitration may be invoked by either party at any time. The arbitration hearing will be no longer than four hours in duration, involve very limited discovery, and conducted no later than one month after arbitrator appointment. The arbitrated decision will be rendered within one week of the arbitration hearing and is not appealable. All costs of arbitration will be shared equally between the parties.
- Entire Agreement and Construction. This Agreement (including any Exhibits, amendments, and addenda hereto which are incorporated herein by reference) and any confidentiality agreements entered into between the parties constitute the entire agreement between the parties as to the subject matter, and supersede all previous and contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter of this Agreement. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the parties against whom the modification, amendment, or waiver is to be asserted. In the event of any inconsistency between the provisions in this Agreement and any Exhibit or incorporated web page, the terms of this Agreement shall prevail to the extent of any inconsistency. Notwithstanding any language to the contrary therein, no terms or conditions orally made to a Customer, or in any other Customer order documentation, or other written sales material, shall be incorporated into or form any part of this Agreement.