(Updated on August 27, 2024)
These Terms of Service (“Terms”) are made effective as of the signature date of the Master Services Agreement (“MSA”) between “Company” (DataEndure) or one of its Affiliates (together, “Our,” “We,” “Us” or similar terms) and the “Customer” ( “You,” “Your” or similar terms) who accepts these Terms by signing the MSA, or accesses and/or uses the Company Products (Defined in § 1.2 (Scope of Agreement)). These Terms govern Company’s performance of Services and Customer’s subscription to the Products and constitute a binding contract in connection with any paid or temporary and limited access evaluation (“Evaluations” defined in § 2.1 (Health Checks)) of the Products.
This is a legal, enforceable contract between You and Company, and by executing these Terms, and where no signature box is available, clicking the “Log In” button to access the Products, or otherwise indicating Your consent to the Terms electronically or through access or use of the Products (and such time “Effective Date”), You expressly agree to be bound by these Terms. If You are entering these Terms on behalf of another entity or person, You hereby represent to Company that You have the authority to bind Customer and its Affiliates to these Terms through such consent or use of the Products. If You do not have such authority, or if You do not agree to these Terms, You may not subscribe to or use the Products.
Capitalized terms will have the meaning assigned to such terms where defined throughout these Terms. Each of Company or Customer is sometimes described in these Terms as a “Party” and together, “Parties,” which Parties agree as follows:
1. License.
1.1. Order.
A purchase order, service order, statement of work (“SOW”) or quote (which shall be referred to herein as “Order”) means an online form completed by You directly through the Company website(s), or a written document such as a Company quote, with corresponding purchase order, sales order or a similar document agreed to in writing and executed among the Parties, or agreed to among You and a Company approved partner (such as a reseller and collectively, “Partner”) and referencing a quote from Company (“Company Quote”), in each case covering our performance of Services or Your subscription to Products or Evaluation. For an Order to be valid, it must be executed by both the Customer and Company, by a Partner and Customer, or by a Partner if the executed Order references and accepts a corresponding Company Quote. Unless otherwise expressly specified in the Order executed by the Parties, the terms of these Terms shall supersede any conflicting terms in an Order.
1.2. Scope of Agreement.
These Terms govern Company’s performance of Services (Defined in § 1.6 (Services)) and Your purchase of a subscription to products (“Products”) offered by Company at the time of agreement and over time, directly or through a Partner, together with the software underlying such products and services and any updates, patches, bug fixes, versions, and software replacement (“Enhancements”), (Products and Enhancements are collectively, referred to as the “Product(s)”). You agree to accept all Enhancements necessary for the proper function of the Products as released by Company from time to time, and further agree that Company shall not be responsible for the proper performance of the Products or security issues encountered with the Products related to Your failure to accept Enhancements in a timely manner.
1.3. Related Services and Products.
As an active Customer subscribing to the Products in accordance with these Terms, during the Subscription Term You may receive and/or subscribe to other related services from Company, such as support services (“Company Support”), Professional Services, Incident Response Services, or other services (collectively “Company Services”); and/or You may subscribe to certain Company Products. Your purchase of such Other Company Services and/or subscription to Products is subject in each case to applicable terms and conditions of these Terms as well as the specific terms for each such Other Company Services and/or Products.
1.4. Documentation.
All use of the Products shall be in accordance with Our then-current published documentation such as technical user guides, installation instructions, articles, data sheets, service specifications or similar documentation specifying the functionalities of the Products and made available by Us to You through the Company portal, available at: my.whitedog.app, as updated from time-to-time in the normal course of business (“Documentation”).
1.5. Subscription; License; Grant.
Subject to Your compliance with the terms and conditions outlined herein and constrained by the export restrictions in §12.8 (Export Compliance), We hereby grant You and Your Affiliates (directly or through a Partner, as applicable) a worldwide, non-transferable, non-exclusive subscription “License” during the term of the subscription set forth in the applicable Order (“Subscription Term”) or any Evaluation Period to access, use, execute, install (as provided for by the applicable Order), store, and display the Products (including Enhancements) solely in support of Your (and Your Affiliate(s)) internal business security and operation, in accordance with the Documentation describing the permissible use of the Products (“Subscription”). The License granted herein is limited to the number of physical or virtual computing devices and/or computing environments (such as containers or hypervisors)that can process data (each of which shall be referred to herein as an “Endpoint”), Users of the Endpoints and networks (which shall be referred to herein as a “User”), email mailboxes (which shall be referred to herein as “Mailbox”), physical or virtual appliances (which shall be referred to herein as (“Appliance”), terabytes of event data processed per month, in the form of network traffic and/or system logs (“SYSLOG”) (which shall be referred to herein as (“Event Data”) and all of which shall be generically referred to herein as (“Node”). All Nodes are part of Customer’s network and computer system(s) as set in scope in an Order (“System”). The Node type is directly related to each product and the Subscriptions are based on the respective Node(s).
For the avoidance of doubt, access to Product(s) are only licensed under and pursuant to this Agreement and may only be licensed on a subscription basis. No title in or to such copies (or the underlying software itself) passes to Customer, and Customer has no license hereunder to transfer title therein or thereto. Any reference herein to the purchase, sale, re-sale, distribution (or similar designations) of the Product(s) will be construed accordingly.
1.6. “Affiliate(s)”.
Means any entity that directly, or indirectly through intermediaries, controls, is controlled by, or is under common control with a Party. The license granted to You herein includes the right to connect Your Affiliates’ Nodes to the Products so as to provide the Products to such Affiliates’ Nodes, provided that You agree to remain fully responsible and liable under these Terms for Your Affiliates use of the Products. You represent that neither You nor, to your knowledge, any of Your Affiliates is an entity that (a) is directly or indirectly owned or controlled by any person or entity currently included on the Specially Designated Nationals and Blocked Persons List or the Consolidated Sanctions List outlined in § 12.8 (Export Compliance).
1.7. “Services”.
Means those Product Services, Managed Security Services and Professional Services (each as defined herein), and other related services, as applicable, as generally described in the applicable service definition herein and as specifically set forth in an Order under this Agreement. Company represents, warrants, and covenants that all Services to be performed under this Agreement shall be performed in a professional, competent, diligent and workmanlike manner by knowledgeable, trained and qualified personnel, all in accordance with the terms of this Agreement and the standards of performance considered generally acceptable in the industry for similar tasks and projects.
1.8. “Managed Security Services”.
Means the management of the Products providing prevention, identification, investigation and alerting of cyber security incidents within the System to pinpoint and identify indication of compromise within the System. This includes but is not limited to the specific remote security monitoring and management services providing incident and event management and alerting services of the System as described in an Order.
1.9. Professional Services.
From time to time, You may place an order for Company’s professional services (“Professional Services”) as set forth in an individual SOW. Each SOW shall include the specifications, fees, and the schedule for such Professional Services. Company shall use commercially reasonable efforts to provide the Professional Services in accordance with the terms of the applicable Order and this Agreement. Company reserves the right to subcontract any or all portions of the Professional Services that Company is obligated to perform under the SOW, subject to § 8.2 (Subcontracting). Professional Services of Company are to be rendered by a team, job function(s) or individual(s) listed in the applicable Order or SOW.
1.10. Professional Services Scheduling.
“Normal Business Hours” are defined as Monday through Friday 8:00 AM to 5:00 PM local time, in the time zone where Professional Services are being performed, except federal holidays. Professional Services performed outside of Normal Business Hours are at the discretion of Company unless otherwise stated in the applicable Order or SOW. Once the Professional Services are scheduled ("Engagement"), the Customer agrees to give a minimum of six (6) business days’ notice from the start of the Engagement to change or cancel the Engagement. If canceled in part or whole with less than six (6) business days’ notice, the Customer will be liable for payment up to the total amount of Fees scheduled for such Engagement within five (5) business days of the cancelation. In some instances, canceled work or shortened days can be applied as credit to off-site work, including documentation or remote consultations. Please talk to the Company representative to discuss this option prior to scheduling. Early completion of the Engagement does not incur liability to the Customer.
1.11. Other Services.
If You decide to enable, access or use third Party products, applications, services, software, networks or other systems, and/or information which may be linked to the Products through Our open APIs (collectively, “Other Services”), including integrating such Other Services directly to Your instance of the Products, be advised that Your access and use of such Other Services is governed solely by the terms and conditions of such Other Services, and We do not endorse, are not responsible or liable for, and make no representations as to any aspect of such Other Services, including, without limitation, their content or the manner in which they handle data or any interaction between You and the provider of such Other Services, or any damage or loss caused or alleged to be caused by or in connection with Your enablement, access or use of any such Other Services. You may be required to register for or log into such Other Services on their respective websites. By enabling any Other Services, You expressly permit Us to disclose Your Login as well as Your Data to such Other Services solely as necessary to facilitate Your enablement and use of such Other Services.
1.12. Third Party Service.
If You enter into an agreement with a third party to manage the installation, onboarding and/or operation of the Products on Your behalf (“Third Party Service”) then You may allow such Third Party Service to use the Products provided that (i) as between the Parties, You remain responsible for all its obligations under the terms of these Terms; (ii) such Third Party Service only uses the Products for Your internal purposes and not for the benefit of any third party or the Third Party Service, and agrees to the terms of these Terms in providing services to You; and (iii) You remain liable to Us for the Third Party Service’s service on Your behalf.
1.13. “Customer Materials”.
Means any materials, data, information, software, equipment or other resources owned by or licensed to You and made available to Us pursuant to facilitating Your use of the Services, including Customer Data.
1.14. “Customer Data”.
Means any information, data, materials, and content (a) that You enter, provide or make, or is otherwise provided or made available by or on behalf of You through the Services, and (b) collected, downloaded, or otherwise received by Us for You or any user pursuant to this Agreement, or any Order, or SOW, or at the written request or instruction by You, and any improvements, modifications, adaptations, translations and derivative works thereof.
Customer Data does not include any component of the Our Services, or material or data provided by or on behalf of Us or Our licensors. Our Services use Customer Data as-is, as it is given. You are responsible for any errors or deficiencies and must identify and correct the same.
2. Evaluations; Health Checks, Early Adoption and Beta Use (as applicable).
2.1. Health Checks.
If You agree to allow Company to perform a Products Health Check on your behalf, for evaluation purposes, then You agree to work with Company to implement the Products in a limited scope, as outlined in the respective Health Check documentation, within your environment for evaluation purposes (“Evaluation”) for a period of up to fourteen (14) days from the start date of the Evaluation (the “Evaluation Period”).
2.2. Evaluation License and Restrictions.
In addition to the license scope detailed elsewhere in these Terms or similar Agreement, during Evaluation You: (i) may install and use, solely during the Evaluation Period, the limited scope outlined in specific Health Check documentation which may be limited to one (1) copy of the Appliance for network or systems security services (“Appliance Software”) and up to ten (10) copies of Endpoints (unless the Parties mutually agree on a different Evaluation Period, or a different number of copies in a Order executed by both Parties and referencing these Terms); (ii) may install a simulated MITRE ATT&CK framework comprising of defanged malware and exploit tactics techniques and procedure, to the extent applicable, only on a single computer, all in accordance with documentation and materials furnished by Company; (iii) shall comply with the use restrictions in § 3 (Restrictions and Access); and (iv) shall uninstall any portion of the Products residing on Your Endpoints after the Evaluation Period, return all Documentation in its possession to Us, and confirm to Us in writing (email accepted) of such deletion and uninstallation. If the Evaluation offering is a subscription, You understand that We may disable access to the subscription automatically at the end of the Evaluation period, without notice to Customer and with no obligation to preserve data from the Evaluation. During and following the Evaluation Period, the Parties shall discuss Evaluation results in good faith.
2.3. Early Adoption or Beta Use.
If You are invited to and agree to participate in Company’s Early Adoption Program or Beta Program, You acknowledge that Early Adoption or Beta versions of the Products are prerelease versions of the Products and as such may contain errors, bugs or other defects. Accordingly, Your use and testing of the Early Adoption and/or Beta versions of the Products is subject to the disclaimers stated in § 2.4 (Disclaimer of Warranties and Liability) below. Additionally, Your use of Early Adoption and/or Beta versions of the Products is subject to Company’s sole discretion as to length and scope of use, updates and support of such Early Adoption or Beta versions of the Products.
2.4. DISCLAIMER OF WARRANTIES AND LIABILITY.
SOLELY WITH RESPECT TO EVALUATION, EARLY ADOPTION OR BETA USE OF THE PRODUCTS, THE PRODUCTS ARE OFFERED ON AN “AS IS” BASIS, WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NON-INFRINGEMENT, OR THOSE ARISING BY LAW, STATUTE, USAGE OF TRADE, OR COURSE OF DEALING. YOU ASSUME ALL RISK AS TO THE RESULTS AND PERFORMANCE OF THE PRODUCTS AND ACKNOWLEDGE THAT THE USE OF THE PRODUCTS, TO THE EXTENT APPLICABLE, MUST BE MADE IN STRICT CONFORMANCE WITH COMPANY’S INSTRUCTIONS. WITHOUT DEROGATING FROM THE FOREGOING, IT IS UNDERSTOOD AND AGREED THAT COMPANY WILL NOT BE LIABLE FOR ANY NETWORK DOWNTIME, PRODUCT DOWNTIME, AND/OR IDENTIFYING AREAS OF WEAKNESS IN THE PRODUCTS. FOR ALL EVALUATIONS OR EARLY ADOPTION OR BETA USE OF THE PRODUCTS, WE SHALL HAVE NO LIABILITY TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR PROFIT, LOST OR DAMAGED DATA, LOSS OF PROGRAMS OR INFORMATION OR OTHER INTANGIBLE LOSS ARISING OUT OF THE USE OF OR THE INABILITY TO USE THE PRODUCTS, OR INFORMATION, OR ANY PERMANENT OR TEMPORARY CESSATION OF THE PRODUCTS OR ACCESS TO INFORMATION, OR THE DELETION OR CORRUPTION OF ANY CONTENT OR INFORMATION, OR THE FAILURE TO STORE ANY CONTENT OR INFORMATION OR OTHER COMMERCIAL OR ECONOMIC LOSS, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE), EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR THAT THEY ARE FORESEEABLE. COMPANY IS ALSO NOT RESPONSIBLE FOR CLAIMS BY ANY THIRD PARTY, EXCEPT FOR COMPANY’S OBLIGATIONS ARISING FROM § 7 (CONFIDENTIALITY). WHILE THE PRODUCTS MAY BE PROVIDED FREE OF CHARGE FOR EVALUATION, EARLY ADOPTION OR BETA PURPOSES ONLY, COMPANY’S MAXIMUM AGGREGATE LIABILITY TO YOU SHALL NOT EXCEED US $100. IN JURISDICTIONS WHERE THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT ALLOWED THE LIABILITY OF COMPANY SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO THE PARTIES OBLIGATIONS UNDER § 7.2 (OBLIGATIONS), HEREIN.
3. Restrictions and Access.
3.1. Restrictions.
Except as expressly authorized by these Terms, You may not do any of the following: (i) modify, disclose, alter, translate, copy, reproduce or create derivative works of or use the Product to develop any service or product that is the same as, substantially similar to, or competes with the Products (or any components thereof) or any accompanying Documentation; (ii) license, sublicense, resell, distribute, lease, rent, lend, transfer, assign or otherwise dispose of the Products (or any components thereof) or any Documentation; (iii) use the Products other than as permitted under these Terms, as directly related to Your internal business operations and in conformity with the Documentation, and not otherwise use the Products for any other commercial or business use, including without limitation offering any portion of the Products as benefits or services to third parties; (iv) use the Products in violation of any laws or regulations, including, without limitation, to store or transmit infringing, libelous or otherwise unlawful or tortious material, or material in violation of third-party privacy rights; (v) use the Products to store, transmit or test for any viruses, software routines or other code designed to permit unauthorized access, disable, erase or otherwise harm software, hardware or data, or to perform any other harmful actions; (vi) probe, scan or test the efficacy or vulnerability of the Products, or take any action in an effort to circumvent or undermine the Products, except for the legitimate testing of the Products in coordination with Company, in connection with considering a subscription to the Products as authorized herein; (vii) attempt or actually disassemble, decompile or reverse engineer, copy, frame or mirror any part or content of the Products, or otherwise derive any of the Products’ source code; (viii) access, test, and/or use the Products in any way to build a competitive product or service, or copy any features or functions of the Products; (ix) interfere with or disrupt the integrity or performance of the Products; (x) attempt to gain unauthorized access to the Products or their related systems or networks; (xi) disclose to any third party or publish in any media any performance information or analysis relating to the Products; (xii) fail to maintain all copyright, trademark and proprietary notices on the Products and any permitted copy thereof; (xiii) cause or permit any Products user or third party to do any of the foregoing; (xiv) modify, alter, adapt, arrange, translate, decompile, disassemble, reverse engineer, or otherwise attempt to reconstruct or discover the source code or non-literal aspects (such as, but not limited to, the underlying structure, sequence, organization, ideas, routines, facilities, and formats) of, the Product; (xv) remove, alter, or conceal, in whole or in part, any Proprietary Legends displayed or contained on/in the Product; (xvi) circumvent, disable or otherwise interfere with security-related features of the Product, or with features that prevent or restrict use of the Product; (xvii) disclose to the public the results of any internal performance testing or benchmarking studies of/about the Product, without first (a) sending the results and related study(ies) to Company, and (b) obtaining Company’s approval in writing of the assumptions, methodology and other parameters of the testing and study(ies); (xviii) use the Product in any way that is infringing, deceptive, harassing, or defamatory, or for any inappropriate purpose (as Company will determine at its sole and absolute discretion), or contrary to any Law; and/or; (xix) publish, transmit, or link to any robot, spider, crawler, virus, malware, Trojan horse, spyware, or similar malicious code or item intended (or that has the potential) to damage, disrupt, compromise, or exploit the Product or a third party's device or software.
3.2. Software Access.
To the extent Company provides its express, written consent for Customer to access any software owned or licensed by Company, the following will apply: (i) access shall be subject to restrictions established by Company from time to time for purposes of supporting such access and for security purposes; (ii) access is provided to Customer solely for purposes of receiving the Services and shall not be used by Customer for any other purpose; (iii) Company reserves the right to monitor and record data and information in connection with provision of the access solely to the extent Company deems reasonably necessary for maintaining performance standards and system security, and subject to the terms of this Agreement including with respect to Customer IP as it relates to delivering our Services or Products; and (iv) Customer will not receive (and Customer hereby expressly disclaims) any ownership, rights, or licenses greater than those set forth in this Section.
4. Ownership and Reservation of Rights.
4.1. Customer.
As between the Parties, You retain all right, title and interest in and to Your Confidential Information and Your Data and will exclusively own the Deliverables (as defined in §4.2 (Company)), including, in each case, all Intellectual Property Rights embodied therein (collectively, the “Customer IP”). Customer IP may be more explicitly described in an applicable Order.
4.2. Company.
As between the Parties, We reserve all right, title and interest in and to the Products (and any and all modifications to or derivative works of the Products) and any and all Intellectual Property Rights embodied in the Company Product (collectively, the “Company IP”). Company and its licensors and suppliers shall own all right, title and interest, including all Intellectual Property rights, in and to the Company IP, including but not limited to (i) all right, title and interest in and to the Services and Products (with the exception of the deliverables developed solely or jointly by or for Company solely for Customer in connection with Company’s performance of any Service (whether or not patentable or copyrightable), including but not limited as described in an Order (“Deliverables”)) and any work product specifically identified in an Order as outside the Deliverables and owned by Company; and (ii) all concepts, methods, processes, software, text, graphics, images, designs, databases, data, inventions and any improvements, enhancements, modifications, and derivative works thereto. To the extent that any Company IP are incorporated into the Deliverables, then Company hereby grants Customer and its Affiliates that are not on the Consolidated Sanctions List outlined in §12.8 (Export Compliance), without further consideration, a worldwide, perpetual, transferable, irrevocable, non-terminable fully-paid license to use, reproduce, modify, distribute, publicly perform, publicly display, transmit, create improvements, and create derivative works based upon such Company IP, and to sublicense same through multiple tiers, for Customer’s internal business purposes. Company acknowledges and agrees that Company will have no right, title or interest, including Intellectual Property rights, in or to any improvements to such Company IP which are developed by or on behalf of Customer as part of the Services.
4.3. Reservation of Rights.
Each Party reserves all rights not expressly granted in these Terms, and no licenses are granted by one Party to the other Party under these Terms, whether by implication, estoppel or otherwise, except as expressly set forth in these Terms. For the purpose of these Terms, “Intellectual Property Rights” means all patents, copyrights, moral rights, trademarks, trade secrets and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing.
5. Billing, Plan Modifications and Payments.
5.1. Orders.
“Orders” shall mean those orders attached to or referencing this Agreement, as agreed to in writing by both Parties and setting forth the particular Services or Product under this Agreement. Orders can be in the form of a Quote, Statement of Work (or “SOW”) or Service Order (or “SO”).
5.2. Fees.
The fees for the Services or Products and any Other Company Services or Products shall be set forth in one or more Orders (“Fees”). All undisputed Fees are due payable directly to Us, or to the applicable Partner, within the timeframe detailed in the applicable valid Order (and absent such valid Order, within thirty (30) days of Customer’s receipt of invoice or may be triggered by first use of the Products). If You fail to pay Your Fees within five (5) business days of Our notice to You that payment is past due or delinquent, We will no longer assume responsibility for providing the Products under the applicable Order and, in addition to Our other remedies We may suspend or terminate Your access to the Products under the applicable Order. Where Fees are paid directly to Us, all payments due under these Terms will be made in U.S. Dollars by check, bank wire transfer or credit card (credit card payments are subject to a 4% processing fee), in immediately available funds to the applicable account designated by Us. No refunds or credits for paid Fees will be issued to Customer unless Customer terminates these Terms for cause pursuant to § 11.2 (Termination) or We terminate access to Products pursuant to § 9.1 (Infringement Indemnity).
5.3. License Fees.
Customer shall pay Company the fees for Products set forth in the applicable Order (“License Fees”). Unless stated otherwise in an Order, Customer shall pay each undisputed invoice issued by Company hereunder within thirty (30) days of Customer’s receipt of the invoice, in U.S. dollars in immediately available funds. Customer will have no obligation to pay any amounts invoiced after ninety (90) days after such amounts were incurred.
5.4. Product Costs.
Customer shall pay Company the costs for the Products as set forth in the applicable Order (“Product Costs”). Unless stated otherwise in an Order, Customer shall make all payments for Product Costs within thirty (30) days after receipt of Company’s invoice. Customer will have no obligation to pay any amounts invoiced after ninety (90) days after such amounts were incurred.
5.5. Expenses.
Company may also invoice Customer for reasonable and necessary out-of-pocket expenses incurred in the performance of Professional Services provided that: any and all such expenses must (i) comply with Customer’s travel policy; (ii) be at Company’s actual cost incurred without mark-up of any kind; (iii) be reasonable and customary; (iv) approved in writing in advance by Customer prior to Company incurring such expense, unless otherwise provided in the applicable Order; and (v) be accompanied by legible copies of receipts or other back-up documentation sufficient enough for Customer to validate any such charges. Payment for any undisputed invoices received by Customer from Company shall be due within thirty (30) calendar days of receipt of such invoice from Company. Customer shall not be liable for payment of any amounts incorrectly stated on an invoice.
5.6. Service Fees.
Customer shall pay Company the fees for Services set forth in the applicable Order (“Service Fees”). Unless stated otherwise in an Order, Service Fees will be billed in advance for the Service at the beginning of the month (“Billing Date”) for each one (1) month(s), or applicable subscription period as set in an Order, of recurring Services. Overages will be billed in arrears, for Services that are not specifically documented in the applicable Order as being in scope for the recurring Service, each month at the beginning of the month “Usage Billing Date” for the previous month’s usage or overage. Customer shall pay all Service Fees within thirty (30) days after receipt of invoice and following notice to Customer and a five (5) day period to cure nonpayment, a late payment charge the lesser of 1.5% per month or the maximum allowed by law may be added to Customer’s bill and immediately become due and payable.
5.7. Plan Modifications.
If You choose to increase the number of Nodes You subscribe to for a Product under an applicable Order or Quote during Your then-effective Subscription Term (a “Subscription Increase”) or upgrade your subscription to a different subscription plan (“Plan Upgrade”), We shall invoice You (or Your Partner) for the incremental Fees associated with such Subscription Increase and/or Plan Upgrade on a pro rata basis at the price per Node specified in the corresponding Quote or valid Order over the remaining period of such Subscription Term (which Fees shall be invoiced upon signature or click through of such Subscription Increase and/or Plan Upgrade via Order or provisioning portal) and thereafter in any Renewal Subscription Term unless otherwise agreed among the Parties in an applicable Order. No Fees refund or credit shall be granted where Customer elects to not use the Products on previously subscribed Nodes.
5.8. Suspension of Service & Interest.
If timely payment is not received in breach of this § 5 (Billing, Plan Modifications and Payments), following notice and a five (5) day period to cure nonpayment, Company reserves the right, in addition to any other rights it may have, to: (i) suspend the Services until such payment is made in full; (ii) charge interest on the amount past due at the lesser of 1.5% per month or the maximum allowed by law; and (iii) invoice Customer for all costs of collection including, but not limited to, reasonable attorneys’ fees.
5.9. Taxes.
All prices set forth in this Agreement are exclusive of any applicable taxes. To the extent, if any, that Customer is required to deduct or withhold taxes from any amounts payable hereunder, the amounts shall be deemed increased so that, after such deduction or withholding, Company receives the actual amount contemplated to be received by Company hereunder. Customer shall pay, indemnify, and hold harmless Company from all import and export duties, customs fees, levies, or imports, and all sales, use, value added, or other fees, governmental charges, or taxes of any nature, including penalties and interest, and all government permit or license fees assessed on or with respect to any software or materials licensed, provided, or otherwise made available to Customer and any Services provided to Customer. Customer will have no liability for taxes that are statutorily imposed on Company, including taxes or fees measured by Company’s net or gross income. Company shall add to each invoice any and all applicable taxes that are legally required to be collected from Customer under applicable law, and is responsible to pay any such taxes that Company fails to include on the invoice for the taxable fees. Company shall be responsible for remitting all such taxes collected from Customer to the appropriate governmental authority in compliance with applicable law. Customer shall not in any way be responsible for the excluded taxes described herein, and Company shall bear sole responsibility for all such excluded taxes. Company shall be solely responsible for reporting, withholding, and/or paying any and all employment-related taxes, payments, and/or withholdings, including federal, state, and local income taxes, Social Security, Medicare, unemployment or disability deductions, withholdings and/or payments.
6. Privacy and Security.
6.1. Processing Limitations and Security Obligation.
In providing You the Products and Other Company Services and Products, We will (i) store, process and access Your Data only to the extent reasonably necessary to provide you the Products and/or Other Company Services and Products, and to improve the Products and Other Company Services and Products; and (ii) implement and maintain commercially reasonable technical, physical and organizational measures to protect the security, confidentiality and integrity of Your Data hosted by Us or Our authorized third party service providers from unauthorized access, use, alteration or disclosure. “Your Data” means all data and information associated with You which is uploaded to, processed by, generated by, and/or stored within the Products by You or through Your use of the Products.
6.2. Data Integrity.
Customer shall be responsible for properly backing up all of the System and ensuring the integrity of the data before the commencement of any Services or Products where Company interacts with the System. If the Customer is unable or unwilling to back up the data, the Customer hereby holds Company harmless of any liability for data loss or corruption on the System Company works with.
6.3. Data Encryption.
It is the Customer’s responsibility to manage and secure their own encryption keys for their data. If the Customer loses or corrupts the Encryption Key, Company will not be able to restore the data.
6.4. Data Privacy and Personal Information.
In these Terms, “Personal Information” shall have the meaning ascribed to such term in Data Protection Addendum (“DPA”). Company will handle Your Personal Information in accordance with these Terms, its Privacy Policy, and privacy laws expressed in the DPA, applicable to the Personal Information the Products collect when operating in default mode (expressly excluding specific privacy laws applicable to files the Products may collect if You elect to trigger certain features resulting in the processing of any file by the Products). Company shall act exclusively as a Service Provider (as defined by California Consumer Privacy Act (CCPA)), and Data Processor (as defined in GDPR) and shall retain, use, disclose and process Personal Information solely for the purpose of providing and enhancing the Products and Other Company Services and Products to You in accordance with these Terms and any applicable Order.
6.5. Hosting Location.
Unless otherwise specifically agreed among the Parties, Your Data may be processed and/or hosted by Company or its authorized third-party service providers in the United States, the European Economic Area (EEA) or other locations around the world.
6.6. Anonymized Data.
Notwithstanding anything to the contrary in these Terms, We may monitor, collect, use and store anonymous and aggregate statistics and/or data regarding use of the Products solely for the internal business purpose of improving the Products and creating new features and You permit us to use such anonymized and aggregate data for such purpose. Anonymized Data shall not be considered Your Data.
7. Confidentiality.
7.1. Definition.
“Confidential Information” means all information disclosed (whether in oral, written, or other tangible or intangible form) by or on behalf of one Party or its Affiliates (the “Disclosing Party”) to the other Party (the “Receiving Party”) concerning or related to these Terms or the Disclosing Party or otherwise in connection with this Agreement, an Order or the Products or Services that are marked as confidential or proprietary, or that the Receiving Party knows or reasonably should know is confidential information of the Disclosing Party given the facts and circumstances surrounding the disclosure of the information by the Disclosing Party. Confidential Information includes, but is not limited to, Personal Information, the terms and conditions of these Terms, as well as all proprietary and/or non-public technical, business, commercial, financial and/or legal information, such as, without limitation, any and all Products information generally shared with Customer and as specifically related to Customer, Products Information gained by Customer through use of the Products, business plans, product information, pricing, financial plans, know how, Customer information, strategies, inventions (whether or not patentable), techniques, methods, algorithms, software, software design and architecture, computer code, documentation, design and functional specifications, problem reports, performance information, interfaces, and other similar information. Deliverables will be the Confidential Information of Customer, and Customer will be deemed to be the Disclosing Party and Company will be deemed to be the Recipient of the Deliverables subject to the exclusions in § 7.3 (Exceptions) below.
7.2. Obligations.
The Receiving Party will maintain in confidence and not disclose to any third party (except as expressly permitted by these Terms) the Confidential Information of the Disclosing Party and will not use such Confidential Information except as expressly permitted in these Terms. The Receiving Party will use the same degree of care in protecting the Confidential Information as the Receiving Party uses to protect its own confidential and proprietary information from unauthorized use or disclosure, but in no event less than reasonable care. Confidential Information will be used by the Receiving Party solely for the purpose of carrying out the Receiving Party’s obligations and exercising its rights under these Terms, and the Receiving Party will only disclose Confidential Information to its Affiliates and its and their respective directors, officers, employees and/or contractors who have a need to know such Confidential Information in order to perform their duties under these Terms (“Representatives”), and only where such Representatives have executed a non-disclosure agreement with the Receiving Party with terms no less restrictive than the obligations with respect to Confidential Information contained in these Terms. The Receiving Party will be responsible for the breach of the Terms by its Representatives. Provided, however, that each Party may disclose the terms and conditions of these Terms: (i) to legal counsel of such Party; (ii) to such Party’s accountants, banks, financing sources and their advisors; (iii) in connection with the enforcement of these Terms or rights under these Terms; or (iv) in connection with an actual or proposed merger, acquisition, or similar transaction. Upon the written request of the Disclosing Party at any time, the Receiving Party will promptly return to the Disclosing Party or at the Disclosing Party’s option destroy all documents and other tangible materials representing the Disclosing Party’s Confidential Information and all copies thereof.
7.3. Exceptions.
Confidential Information will not include information that: (i) is in or enters the public domain without breach of these Terms by the Receiving Party; (ii) the Receiving Party can reasonably demonstrate was in its possession prior to first receiving it from the Disclosing Party; (iii) the Receiving Party can demonstrate was developed by the Receiving Party independently, and without use of or reference to, the Confidential Information; or (iv) the Receiving Party receives from a third party not under confidentiality obligations to the Disclosing Party without restriction on disclosure and without breach of a nondisclosure or non-use obligation to the Disclosing Party. In addition, the Receiving Party may disclose Confidential Information that it is required to disclose by law, or by a subpoena or order issued by a court of competent jurisdiction (each, an “Court Order”), and where such Court Order requires disclosure the Receiving Party shall, to the extent possible and permissible under applicable law: (a) give the Disclosing Party written notice of the Court Order promptly after receiving it; and (b) cooperate with the Disclosing Party’s reasonable requests before disclosure to provide the Disclosing Party with the opportunity to interpose any objections it may have to disclosure of the information required by the Court Order and seek a protective order or other appropriate relief at the Disclosing Party’s sole expense. Compulsory disclosures made pursuant to a Court Order will not relieve the Receiving Party of its obligations of confidentiality and non-use with respect to non-compulsory disclosures.
7.4. Remedies.
The Receiving Party acknowledges that any breach of this § 7 (Confidentiality) will result in irreparable injury to the Disclosing Party, which injury could not be adequately compensated by the payment of money damages. In addition to any other legal and equitable remedies that may be available, the Disclosing Party will be entitled to seek and obtain injunctive relief against any breach or threatened breach by the Receiving Party of the confidentiality obligations hereunder, from any court of competent jurisdiction, without being required to show any actual damage or irreparable harm, prove the inadequacy of its legal remedies, or post any bond or other security.
7.5. Survival of Obligations.
Receiving Party’s obligations with respect to Confidential Information under this § 7 (Confidentiality) will survive termination or expiration of these Terms for a period of seven (7) years.
8. Representations, Warranties and Remedies.
8.1. General Representations and Warranties.
Each Party represents and warrants the following: (i) it is validly existing and in good standing under the laws of the place of its establishment or incorporation; (ii) it has full corporate power and authority to execute, deliver and perform its obligations under these Terms; (iii) the person signing these Terms on its behalf has been duly authorized and empowered to enter into these Terms; (iv) these Terms are valid, binding and enforceable against it in accordance with its terms; (v) it shall deliver (as to Company ) and operate (as to Customer) the Products in material conformity with the Documentation and the terms herein; and (v) it will perform its obligations under these Terms in accordance with applicable federal or state laws or regulations.
8.2. Subcontracting.
Company reserves the right to employ agents and subcontractors to assist Company when providing any part of the Services; provided, however, that Company shall not subcontract any of the Services without Customer’s prior written consent, which may be granted in Customer’s sole discretion. In the event Company uses contractors, subcontractors or any other persons who are not employees of Company (“Company Subcontractors”), to perform any of the Services, Company shall: (i) ensure all of its Company Subcontractors’ compliance with all of the terms and conditions of this Agreement; (ii) remain solely responsible for the performance, work and any and all activities of the Company Subcontractors; (iii) remain solely liable for any and all acts or omissions or breaches of the terms of this Agreement by such Company Subcontractor(s); and (iv) be solely liable for all payments to its Company Subcontractors and for all losses arising out of, or relating to, the performance or failure of performance, of any such Company Subcontractors, whether or not the services of such Company Subcontractors were authorized hereunder. Nothing in this Agreement shall be construed to create any contractual relationship between Customer and any Company Subcontractors. Any reference to Company Personnel in this Agreement includes agents and Company Subcontractor staff. At no time may Customer mandate that Company engage a specific contractor or subcontractor.
8.3. Conformity with Documentation.
We warrant that at any point in time during Your Subscription Term, the most recent release of the Products (“Current Release”) will substantially conform in all material respects with the Documentation. Company’s sole obligation for material non-conformity with this warranty shall be, in Company’s sole discretion, to (i) use commercially reasonable efforts to provide You with an error-correction or workaround which corrects the reported non-conformity; (ii) use commercially reasonable efforts to replace the non-conforming portions of the Products with conforming items; or (iii) if Company reasonably determines such remedies to be impracticable within a reasonable period of time, to terminate the applicable Order(s) and refund the Fees paid for the Products. The above warranty will not apply: (a) if the Products are not used in compliance with the Documentation; (b) if any unauthorized modifications are made to the Products by You or any third party; (c) to use of early releases of the Products which are not the Current Release or the Products release immediately preceding the Current Release; (d) to defects due to accident, abuse or improper use by You; or (e) to Evaluation or Early Adoption use of the Products.
8.4. DISCLAIMER.
COMPANY IS BEING ENGAGED ONLY TO PROVIDE THE SERVICES SET FORTH IN THIS AGREEMENT AND IN ORDERS AGREED BY THE PARTIES IN WRITING, INCLUDING ANY AGREED DELIVERABLES. THE FOREGOING LIMITED WARRANTIES DO NOT APPLY TO MODIFICATIONS TO THE SERVICES OR THE DELIVERABLES MADE BY CUSTOMER UNLESS PERFORMED AT THE DIRECTION OF COMPANY. COMPANY SHALL NOT BE LIABLE FOR ANY LOSS OF DATA AND SHALL NOT BE RESPONSIBLE FOR RESTORING ANY LOST DATA OR SOFTWARE EXCEPT AS SPECIFICALLY DESCRIBED IN THIS AGREEMENT OR THE APPLICABLE ORDER. THE LIMITED WARRANTIES DO NOT APPLY TO ANY THIRD-PARTY PRODUCTS OR SERVICES, HOWEVER, AND TO THE EXTENT PERMITTED, COMPANY WILL PASS THROUGH ANY WARRANTIES FROM SUPPLIERS OF UNDERLYING SOFTWARE OR SERVICES. WITH THE EXCEPTION OF THE FOREGOING LIMITED WARRANTIES AND ANY OTHER WARRANTIES SET FORTH IN THIS AGREEMENT OR ANY ORDER, (I) COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND RELATING TO THE SERVICES OR DELIVERABLES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE AND NON-INFRINGEMENT, AND (II) COMPANY MAKES NO WARRANTY THAT THE SERVICES AND ANY DELIVERABLES WILL MEET CUSTOMER'S REQUIREMENTS, THAT THE RESULTS OBTAINED FROM THE USE OF THE FOREGOING WILL BE SATISFACTORY, ACCURATE OR RELIABLE, OR THAT THE SERVICES OR DELIVERABLES WILL MEET CUSTOMER'S EXPECTATIONS. THE REPRESENTATIVES OF COMPANY HAVE NO AUTHORITY TO GIVE ANY WARRANTIES ON BEHALF OF COMPANY. CUSTOMER IS SOLELY RESPONSIBLE FOR ANY COURSE OF ACTION BASED ON SUCH SERVICES.
9. Indemnification Obligations.
9.1. Company Indemnity.
Company will defend and indemnify You and Your Affiliates, and Yours and their directors, officers, employees, and agents (“Customer Indemnitees”) from and against any and all third party claims, suits, actions or proceedings (each a “Claim”), arising out of: (a) any allegation that Your use of the Products or Services infringes or misappropriates a third party’s valid Intellectual Property Right, (b) Company’s breach of these Terms, and (c) any unauthorized access to or disclosure of data arising from Company’s negligence or willful misconduct in the performance of Services. Company, at its expense, will defend any such Claim by reason of Your use of the Products as permitted hereunder, and pay damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorneys’ fees, costs, penalties, interest and disbursements) arising out of such Claim. In the event of a Claim pursuant to this § 9.1(a), Company may, at Company’s option and at Company’s expense: (i) obtain for Customer the right to continue to exercise the license granted to Customer under these Terms; (ii) substitute the allegedly infringing component for an equivalent non-infringing component; or (iii) modify the Products to make them non-infringing. If (i), (ii), or (iii) is not obtainable on commercially reasonable terms, Company may terminate the applicable infringing Product(s) or Service(s), after providing Customer a reasonable time (no less than 30 days) to transition to an alternative solution, unless Company determines in its reasonable discretion that such use of the Products will likely result in infringement and in such case may terminate Customer’s access to the applicable infringing Product(s) or Service(s) immediately with concurrent written notice to Customer. In the event of a termination of such access pursuant to this § 9.1 (Company Indemnity), all rights and licenses with respect to the Products will immediately cease and Company will promptly refund to Customer all prepaid Fees for the Products attributable to the Subscription Term (as outlined in the applicable Order) following the termination of the applicable infringing Product(s) or Service(s). Company’s indemnification obligations under this § 9.1 (Company Indemnity) do apply to the extent Claims arise from or relate to: (a) any negligent or willful misconduct of any Customer Indemnitees in connection with its performance of its obligations under these Terms or an applicable Order; (b) any combination of the Products (or any portion thereof) by any Customer Indemnitees or any third party with any equipment, software, data or any other materials where the infringement would not have occurred but for such combination, unless such combination is the customary, ordinary, and intended use of the Products; (c) any modification to the Products by any Customer Indemnitees or any third party where the infringement would not have occurred but for such modification; (d) the use of the Products by any Customer Indemnitees or any third party in breach of the terms of these Terms where the infringement would not have occurred but for such breach; or (e) Customer’s continued use of the infringing Product(s) or Service(s) after Company has provided a substantially equivalent non-infringing software or service.
9.2. Customer Indemnity.
Customer will defend and indemnify Company and its Affiliates, and its and their directors, officers, employees and agents (“Company Indemnitees”) from and against any Claim, and be liable for any related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorneys’ fees, costs, penalties, interest and disbursements) arising out of: (i) Customer’s use of the Products in breach of these Terms; (ii) Customer’s use of any third party Intellectual Property in connection with the Product(s) or Service(s) in breach of these Terms where such Claim would not have occurred but for such use; (iii) Customer’s breach of these Terms or any Order; or (iv) the failure of Your administrators of Your account to maintain the confidentiality of their login information to such account.
9.3. Procedures.
The indemnified Party will: (i) give prompt written notice of the Claim to the indemnifying Party once the indemnified Party becomes aware of the Claim (provided that failure to provide prompt written notice to the indemnifying Party will not alleviate an indemnifying Party’s obligations under this § 9 (Indemnification Obligations) to the extent any associated delay does not materially prejudice or impair the defense of the related Claims); (ii) grant the indemnifying Party sole control of the defense (including granting the indemnifying Party the right to select and use counsel of its own choosing) and the right to settle the Claim (except that the indemnified Party’s prior written approval will be required for any settlement that reasonably can be expected to require the indemnified Party to pay any money, admit any wrongdoing or otherwise be prejudiced); and (iii) provide reasonable cooperation to the indemnifying Party and, at the indemnifying Party’s request and expense, assist in the defense or settlement of the Claim. The indemnified Party reserves the right to engage its own counsel to assist in the defense at its own cost and expense.
10. LIMITATION OF LIABILITY.
(A) IN NO EVENT WILL EITHER PARTY’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER TO COMPANY (OR ITS RESELLER) UNDER THESE TERMS FOR SIX (6) MONTHS PRIOR APPLICABLE FEES FROM THE TIME OF THE EVENT OR EVENTS FROM WHICH THE ALLEGED DAMAGES ARISE.
(B) NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, § 10(A) AND § 10(C) SHALL NOT APPLY TO (I) A PARTY’S OR ITS REPRESENTATIVES’ BREACH OF § 3 (RESTRICTIONS AND ACCESS) OR, § 7 (CONFIDENTIALITY), (II) A PARTY’S OR ITS REPRESENTATIVES’ GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR VIOLATION OF APPLICABLE LAW, OR (III) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER § 9.1 (COMPANY INDEMNITY) AND § 9.2 (CUSTOMER INDEMNITY).
(C) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, ANY INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF, OR IN CONNECTION WITH THESE TERMS, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. THIS § 10 (LIMITATION OF LIABILITY) WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THESE TERMS IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
11. Term, Termination and Effect of Termination.
11.1. Term.
Unless otherwise agreed to in writing among Parties, the term of these Terms will begin on the Effective Date and continue for twelve (12) months (the “Term”), and thereafter these Terms shall renew for additional successive periods identical in length to the initial Term. Each Order will outline the Subscription and Term for applicable Product(s) and/or Service(s) under such Order. Unless either Party notifies the other in writing no less than sixty (60) days prior to the close of the then-current Subscription or Term of its intention to not renew, the Subscription and Term will automatically renew for additional successive periods identical to the initial Subscription and “Renewal Term”. Any Subscription or Term may also (i) be terminated in accordance with § 11.2 (Termination) below; or (ii) be terminated by Us in accordance with § 9 (Indemnification Obligations).
11.2. Termination.
(a) Either Party may terminate these Terms or an Order, for cause, if the other Party: (i) materially breaches these Terms and does not cure such breach within thirty (30) days after its receipt of written notice of such breach; or (ii) becomes insolvent, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority.
(b) Company may terminate these Terms immediately for cause by providing concurrent notice to You if We believe that You are using the Product(s) or Service(s) in any unauthorized manner likely to cause harm to Company, the Products or a third party.
11.3. Effect of Termination.
Upon any termination or expiration of these an Order: (i) all rights and licenses granted to Customer with respect to Product(s) and/or Service(s) licensed under such Order will immediately terminate; (ii) all of Our obligations under the applicable Order (including, Our performance of the Company Support) will immediately cease; (iii) there will be no refund for any pre-paid and unused Fees under such Order as of the termination date (except where You terminate these Terms in connection with §11.2 (Termination), and You will pay Us in accordance with § 5 (Billing, Plan Modification and Payments) any Fees due and payable under such Order as of the termination date; (iv) upon receiving a written request from the Disclosing Party, the Receiving Party will promptly return to the Disclosing Party all Confidential Information of the Disclosing Party then in its possession or destroy all copies of such Confidential Information, at the Disclosing Party’s sole discretion and direction; and (v) You will promptly cease all use of the Products licensed under such Order and destroy and/or permanently delete all copies of any components of such Products in Your possession. Company reserves the right to investigate suspected violations of Customer’s obligations under § 11.3(v) herein. Customer will immediately confirm, in writing, that it has complied with these §§ 11.3(iv) and 11.3(v) at Our request. Company will immediately confirm, in writing, that it has complied with § 11.3(iv) at Customer’s request. Upon termination or expiration of these Terms, these Terms shall remain in full force and effect until all Orders under the MSA are terminated or expire, unless otherwise agreed to the Parties in writing. Notwithstanding any terms to the contrary in these Terms, §§ 3 (Restrictions and Access), 4 (Ownership and Reservation of Rights), 5 (Billing, Plan Modifications and Payments), 7 (Confidentiality), 8.2 (Subcontracting), 9 (Indemnification Obligations), 10 (Limitation of Liability), 11.3 (Effect of Termination), 12 (General Provisions) will survive any termination of these Terms.
12. General Provisions.
12.1. Dispute Resolution.
Dispute Resolution. Any claim or dispute between the Parties and arising out of, or in connection with, this Agreement, an Order, or the relationship created between the Parties as a result of this Agreement (a “Dispute”) that cannot be resolved by direct discussions between the Parties shall be resolved by a court of competent jurisdiction in accordance with § 12.4 (Governing Law and Venue).
12.2. Entire Agreement.
These Terms, together with all exhibits attached thereto (all of which are incorporated herein by reference), set forth the entire agreement and understanding of the Parties relating to Your subscription to the Products, and the Parties herein expressly agree that these Terms supersede all prior or contemporaneous potentially or actually conflicting terms in agreements, proposals, negotiations, conversations, discussions and/or understandings, whether written or oral, with respect to such subject matter and all past dealing or industry customs (including without limitation any nondisclosure agreement among the Parties relating to any prior use of the Products, any Order and/or another agreement among the Parties in connection with Your consideration and/or evaluation of the Products), excluding only any written agreement executed by You and Company, expressly referencing these Terms and only to the extent expressly superseding specific terms in these Terms.
12.3. Independent Contractors.
Neither Party will, for any purpose, be deemed to be an agent, franchisor, franchise, employee, representative, owner or partner of the other Party, and the relationship between the Parties will only be that of independent contractors. Neither Party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other Party, whether express or implied, or to bind the other Party in any respect whatsoever.
12.4. Governing Law and Venue.
These Terms will be governed by and construed in accordance with the laws of the State of California, without regard to conflict of law principles. The state or federal court in Santa Clara County, California will be the jurisdiction in which any suits, actions or other proceedings should be filed if they relate to these Terms, and each Party hereby consents to the sole and exclusive jurisdiction of the state and federal courts sitting in California. Prior to the filing or initiation of any action or proceeding relating to these Terms, the Parties must participate in good faith mediation in Santa Clara County, California (except an action or proceeding required to protect or enforce a Party’s Intellectual Property Rights). If a Party initiates any proceeding regarding these Terms, the non-prevailing Party to such proceeding shall reimburse the prevailing party for its reasonable attorneys’ fees and costs actually incurred for claims arising out of these Terms upon receipt of a final order in its favor from a court of competent jurisdiction.
12.5. Publicity.
Both Parties agree that neither Party may reference and use the name and trademarks of the Other Party or its suppliers in marketing and promotional materials, including, but not limited to either Party’s website, without prior written consent of Other Party.
12.6. Assignment.
Neither these Terms nor any right or duty under these Terms may be transferred, assigned or delegated by a Party, by operation of law or otherwise, without the prior written consent of the other Party and such consent shall not be unreasonably delayed or withheld. Any attempted transfer, assignment or delegation without such consent will be void and without effect. Notwithstanding the foregoing, each Party may assign these Terms to a successor of substantially all of its business or assets, whether by merger, sale of assets, sale of stock, sale of control, reorganization or otherwise, with written notice to the other Party. These Terms will be binding upon and will inure to the benefit of the Parties and their respective representatives, heirs, administrators, successors and permitted assigns.
12.7. U.S. Government Rights.
If Customer is, or is entering into this Agreement on behalf of, any agency or instrumentality of the United States Government, the Product and the Documentation are “commercial computer software” and “commercial computer software documentation,” and pursuant to FAR 12.212 or DFARS 227.7202, and their successors, as applicable, use, reproduction and disclosure of the Documentation are governed by the terms of this Agreement.
12.8. Export Compliance.
The Products, and Company Software or other components of the Products which We may provide or make available to You for use by Your users are subject to U.S. export control and economic sanctions laws. You agree to comply with all such laws and regulations as they relate to Your access to and use of the Products. You shall not access or use the Products if You are located in any jurisdiction in which the provision of the Products is prohibited under U.S. or other applicable laws or regulations (a “Prohibited Jurisdiction”) and You agree not to grant access to the Products to any government, entity or individual located in any Prohibited Jurisdiction. You represent, warrant and covenant that (i) You are not named on any U.S. government list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person; (ii) You are not a national of, or a company registered in, any Prohibited Jurisdiction; (iii) You shall not permit users to access or use the Products in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions; and (iv) You shall comply with all applicable laws regarding the transmission of technical data exported from the U.S. and the country in which You and users are located. You represent that neither You nor, to your knowledge, any of Your subsidiaries is an entity that (a) is directly or indirectly owned or controlled by any person or entity currently included on the Specially Designated Nationals and Blocked Persons List or the Consolidated Sanctions List maintained by the Office of Foreign Assets Control, US Department of the Treasury ("OFAC") or other similar list maintained by any governmental entity, or (b) is directly or indirectly owned or controlled by any person or entity that is located, organized, or resident in a country or territory that is, or whose government is, the target of sanctions imposed by OFAC or any other governmental entity.
12.9. Amendments and Waivers.
No modification, addition or deletion, or waiver of any rights under these Terms will be binding on a Party unless made in a written agreement executed by a duly authorized representative of each Party. No failure or delay (in whole or in part) on the part of a Party to exercise any right or remedy hereunder will operate as a waiver thereof or effect any other right or remedy, and no waiver of one breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default. All rights and remedies hereunder are cumulative and are not exclusive of any other rights or remedies provided hereunder or by law.
12.10. Notices.
Any legal notice (whether these Terms expressly state “written notice” or “notice”) or communication required or permitted to be given hereunder must be in writing, signed or authorized by the Party giving notice, and may be delivered by hand, deposited with an overnight courier, sent by confirmed email, confirmed facsimile, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving Party as identified in the signature box below, on a valid Order, in the case of Company to legal@dataendure.com, or at such other address as may hereafter be furnished in writing by either Party to the other Party. Such notice will be deemed to have been given as of the date it is delivered if delivered by in person, otherwise notice is effective on the earlier of 5 days from being deposited for delivery or the date on the confirmed facsimile, confirmed email or courier receipt.
12.11. Severability.
If any provision of these Terms is deemed invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other provisions of these Terms will nonetheless remain in full force and effect. Upon such determination that any provision is invalid, illegal, or incapable of being enforced, the Parties will negotiate in good faith to modify these Terms so as to affect the original intent of the Parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled.
12.12. Force Majeure.
Except for payments past due under these Terms, A Party will not be responsible for any failure to perform or delay to the extent caused by any cause beyond its reasonable control, including but not limited to acts of God (fire, storm, floods, earthquakes, etc.), civil disturbances, disruption of telecommunications, disruption of power or other essential services, interruption or termination of service provided by any service providers being used by Us, labor disturbances, vandalism, cable cut, computer viruses or other similar occurrences, or any malicious or unlawful acts of any third party (a “Force Majeure Event”).