These Terms (“Terms”) and the applicable Order Form and/or SOW govern any Offerings provided by Beryllium InfoSec, Inc. (“Company”) to Customer. By executing an Order Form or SOW that references these Terms, Customer agrees to be bound by these Terms.
1.1. “Agreement” means these Terms and the applicable Order Form and/or SOW executed by the Parties.
1.2. "Anti-Virus" or “Anti-Malware Software” means software designed to detect, quarantine, and remove malware and other malicious programs from systems and networks.
1.3. “Authorized Users” means Customer’s employees, contractors, or agents authorized to access the Offerings under Customer’s account.
1.4. “Confidential Information” means any information which one party (“Discloser”) provides, either directly or indirectly, to the other (“Recipient”) in connection with this Agreement, the terms of this Agreement, or information related to the business of the Discloser that is reasonably understood to be confidential or proprietary information, whether or not marked. “Customer Data” means all data, content, software, and other information submitted by or on behalf of Customer to the Offerings.
1.5. “Correction” means, without limitation, workarounds, support releases, component replacements, patches and/or documentation changes made available by Company.
1.6. “Defect” means a failure to operate substantially in accordance with the Documentation.
1.7. “Dispute” means any dispute or claim arising out of or related to this Agreement.
1.8. “Documentation” means Company’s user manuals, technical documentation, customer responsibility and shared responsibility matrices, product documentation, or training materials for the Offerings.
1.9. “Effective Date” means the date this Agreement is signed by both parties, or if signed on different dates, the date of the last signature.
1.10. “Export Controls” means all export control laws and regulations, such as the U.S. Export Administration Regulations and export control laws and regulations administered or enforced by the European Union, any European Union member country, or the UK Export Control Joint Unit, as well as those administered or enforced by the Australian Government.
1.11. “Fees” means all amounts payable by Customer for the Offerings, as specified in the applicable Order Form or SOW.
1.12. “Initial Term” means the initial subscription period as specified in the applicable Order Form, commencing on the Effective Date.
1.13. “Intellectual Property” means the property of ideas, examples of which include, but are not limited to, patents, trademarks, copyrights, and trade secrets.
1.14. “Offerings” means the Company’s software, hosted services, professional services, documentation, deliverables, and any other products or services made available under this Agreement.
1.15. “Order Form” means the ordering document executed by the parties referencing these Terms and specifying the Offerings to be provided. A Statement of Work can be used as an Order Form.
1.16. “Period of Performance” means the authorized timeframe during which all contract activities, deliverables, and services shall be performed, beginning on the service activation date specified in the Order Form and continuing through the expiration or termination of this Agreement “Professional Services” means consulting, implementation, or other services provided by Company as described in an SOW.
1.17. “Renewal Term” means each successive period following the Initial Term during which this Agreement remains in effect, as specified in Section 9.
1.18. “Sanctioned Country” is a country or territory that is the target of comprehensive territorial or sectoral Sanctions, currently including Afghanistan, Belarus, Burundi, Central African Republic, Cuba, Democratic Republic of the Congo, Iran, Libya, Mali, Myanmar (Burma), North Korea, Somalia, Sudan, Syria, Ukraine (Crimea, Donetsk and Luhansk), Russia, Venezuela, Yemen, and Zimbabwe, subject to change.
1.19. “Sanctioned Person” means any person or entity on the U.S. Department of Commerce’s Denied Persons List, the U.S. Department of Treasury’s List of Specially Designated Nationals and Blocked Persons, or with which dealings are restricted under Trade Controls.
1.20. “Sanctions Target” is a target of any Sanctions, including persons listed on a Sanctions list or located, organized or resident in a Sanctioned Country.
1.21. “Sanctions” means any sanctions administered or enforced by the U.S. Department of the Treasury’s Office of Foreign Asset Control or the U.S. State Department, the United Nations Security Council, the European Union, any European Union member country, His Majesty’s Treasury, or by the Australian Government.
1.22. “Security Incident” means any suspected or confirmed unauthorized access to, acquisition of, use of, disclosure of, modification of, or destruction of Customer Data, the Offerings, or Company systems used to process or store Customer Data that materially compromises the confidentiality, integrity, or availability of Customer Data or the Offerings.
1.23. “Statement of Work” or “SOW” means a written document referencing these Terms and describing the scope of Professional Services to be performed by Company. If services are included, a Statement of Work is required
1.24. “Subscription” means the right to access and use the Offerings for a defined term or Period of Performance, as set forth in the applicable Order Form.
1.25. “Support” means technical support services provided by Company as described in the Order Form or Documentation.
2.1. By executing an Order Form or SOW, or by otherwise accessing or using the Offerings, Customer (through its authorized representative) affirms that it has read, understands, and agrees to these Terms. The individual accepting these Terms represents and warrants that they have full authority to bind Customer to these Terms. Continued use of the Offerings constitutes acceptance of any updated Terms as provided herein.
3.1. Company may update these Terms upon notice to Customer via email or through the Offerings. Material changes will become effective 30 days after notice unless Customer objects in writing before the effective date. Continued use of the Offerings following the effective date constitutes acceptance of the changes.
3.2. No changes to the applicable Order Form or SOW shall be made without the written consent of all Parties. All changes must be submitted with the Cuick Trac CUI Access List, provided to Customer during on-boarding.
4.1. Subject to these Terms and payment of applicable Fees, Company grants to Customer a non-exclusive, non-transferable, non-sublicensable right to access and use the Offerings described in the Agreement for Customer’s internal use during the Subscription Period. Customer shall have no right to receive any object code or source code relating to the Offerings. Customer grants to Company a non-exclusive, non-transferable right to access and use Customer Data as reasonably required to provide the Offerings. While Company will take commercially reasonable efforts to make the Offerings available, Customer is responsible for acquiring and maintaining access to the internet (including but not limited to using an adequate web browser) in order to access and use the Offerings. Company shall not be liable for any failure of or interruption to such access and use resulting from failure or impairment of any network, software, web browser or equipment not under the control of Company. Customer shall be solely responsible for obtaining and maintaining all hardware and software necessary to access the Services.
4.2. Customer must acquire and assign the appropriate Subscription licenses required for its use in connection with the Offerings. Usage exceeding the number of Subscriptions requires additional purchase of licenses to cover overage. Each user that accesses the Offerings must be assigned a unique username, or access the Offering only through a device that has been assigned a device subscription license, unless specified otherwise in the Order Form or SOW.
4.3. Unless otherwise specified, Customer may install and use any software provided by Company only for use with the Offering. Customer’s right to use the software begins when the Offering is activated and ends when Customer’s right to use the Offering ends.
5.1. Customer is responsible for use of the Offerings by those to whom Customer provides access. Company reserves the right to deactivate or suspend Customer's or any Authorized User’s access if use of the Offerings is found or reasonably suspected, in Company’s judgment, to violate the Use Restrictions set forth in this Agreement.
5.2. Use Restrictions. Customer agrees not to:
5.3. Company Use of Services. Company may access and use the Services at Customer's request or to provide support. Company users do not count towards Customer's number of Authorized Users.
5.4. Authorized Users and User IDs.
5.5. Excessive Usage or Misuse. In the event that Customer's use of the Services degrades or otherwise interferes with the Services or other system performance, Company will take appropriate measures, which may include immediate suspension. Company will notify Customer of suspension; such notification will be in advance when reasonably possible. Upgrades to the processing capacity may be available at Company option, but will be subject to an additional charge.
6.1. Company provides updates which may include alterations to and replacement of features and functionality. Some changes to the Offerings may occur automatically, while others may require Customer to schedule and implement the changes.
6.2. Customer acknowledges that if Customer provides Company any software code to promote into a test or production environment in the Offerings, Company reserves the right to review and, at its sole discretion, reject or remove such code at any time during the term of the Agreement based on performance, security, or other issues involving the possibility of a disruption to the operation of the Offerings. Customer will not submit any code for promotion that contains any computer viruses, worms, Trojan horses, back doors, trap doors, time bombs, salamis, or any other code that permits the disabling or disruption of the Offerings.
7.1. As set forth the Service Level Agreement, https://www.berylliuminfosec.com/sla, Company shall provide reasonable general technical support in accordance with Customer’s support plan as identified in an Order Form ("Support") to allow Customer’s authorized maintenance contact(s) to report problems and to seek assistance in the use of the Offerings during Company’s standard Support hours.
7.2. The Service Level Agreement details the Company’s Service Levels and Service Level Credits in the event of a Service Level Default. As set forth the Service Level Agreement, https://www.berylliuminfosec.com/sla
7.3. Customer shall document and report suspected Defects in the Services using the ServiceNow Portal. If Company confirms the Defect, Company will use commercially reasonable efforts to provide a Correction to confirmed Defects. Corrections will only appear in the most recent release of the Offerings. Company reserves the right to decline Customer maintenance/support requests that could be resolved by reference to the Documentation. Customer will take all reasonable steps to carry out procedures for the implementation of Corrections and updates.
7.4. Given a 24 hour notice for Customer, any diagnostic or auditing services performed by Company may require Company to install a small amount of code (“Diagnostic Code”) on one or more of the devices attached to the Customer’s network enclave. The Diagnostic Code is deleted in its entirety after the testing process concludes. No personal data or CUI will be reviewed or copied by Company at any time during the testing process. No files will be erased, modified, opened, reviewed, or copied at any time during the testing process. The Diagnostic Code will not install or create any disabling device, or any backdoor or hidden entryway into the Customer’s network enclave system. The results of the diagnostic testing will be kept confidential by Company.
7.5. The testing process is for diagnostic purposes only. The process is not intended, and will not be used, to correct any problem or error in the Customer’s enclave. Company does not warrant or represent that the testing process will result in any particular outcome, or that any issue, hardware, or software configuration will be correctly detected or identified.
7.6. If Customer requests a configuration element (hardware or software) or hosting service in a manner that is not customary for Company, or that is in “end of life” or “end of support” status, Company may designate the element or service as “unsupported,” “non-standard,” “best efforts,” “reasonable endeavor,” “one-off,” “EOL,” “end of support,” or with like term in the service description (an “Unsupported Service”). Company makes no representation or warranty regarding any Unsupported Service, and Customer agrees that Company will not be liable to Customer for any loss or damage arising from the provision of an Unsupported Service. Deployment and service level guarantees shall not apply to any Unsupported Service. Company also the right of refusal to implement such configurations in the interest of preserving Customer security. If a request for Unsupported Service is outside an existing Order Form or SOW, an additional Order Form or SOW must be executed prior to performing the Unsupported Service.
Professional Services are governed by a SOW referencing these Terms. Deliverables, timelines, and fees will be set forth in the SOW. Changes require a written change order. Deliverables are deemed accepted unless Customer notifies Company of material deficiencies within 10 days of delivery. Unless otherwise specified, Company retains all Intellectual Property rights in tools, templates, and methodologies used or developed during Professional Services, granting Customer a non-exclusive license to use deliverables.
8.1. Company shall provide to Customer the Professional Services (a) in accordance with the terms and subject to the conditions set forth in this Agreement, including the Service Level Agreement; (b) using personnel of required skill, experience, licenses, and qualifications; (c) in a timely, workmanlike, and professional manner; and (d) in accordance with the professional industry standards in Company’s field. Nothing in this Agreement shall be construed to prevent Customer from itself performing or from receiving services from other providers that are similar or identical to the Services.
8.2. The advice and suggestions provided by the Company’s security experts, technical support or operations personnel will be for Customer’s informational and/or educational purposes only. Company’s personnel will not hold an actual director or officer position with Customer and will neither hold nor maintain any fiduciary relationship or any position as employee or agent of Customer. Under no circumstances shall Customer list or place Company personnel on Customer’s corporate records or accounts. At all times, the Company’s personnel will be an independent contractor of Customer.
8.3. As part of the Offerings, Company may provide Customer with policy and procedure shell documents that generally align with NIST 800-171. Customer is responsible for completing these documents in such a way as to comply with applicable laws, regulations, or standards.
9.1. Customer shall pay all Fees as set forth in the Order Form or SOW. Unless otherwise stated in the applicable Order Form or SOW, Fees are due and payable in full in advance of the applicable Subscription Term. Invoices are due 30 days from the invoice date unless otherwise specified. Fees are exclusive of taxes, which Customer is responsible for paying (excluding taxes on Company’s income).
9.2. Should the number of Authorized Users increase during the month, Customer agrees to paying the full monthly fee for the number of users at the 1st of the following month. For enclave services, should Customer have less than the number of Authorized Users identified in the Order Form, they will nonetheless be invoiced for the quantities listed in the Order Form for the remainder of the term. Additional services requested requires a signed change order through the Cuick Trac service desk.
9.3. Payments not made within 30 days of invoice date shall bear an interest rate of 2.0% per month on the outstanding balance. Customer agrees to pay for all attorneys’ fees and costs incurred by Beryllium in the collection of past due Fees related to Customer.
9.4. Following the Initial Term, this Agreement shall automatically renew for successive one (1) year periods (each a ‘Renewal Term’), unless either party provides the other with written notification of non-renewal at least sixty (60) days prior to the expiration of the then-current term. There can only be two Renewal Terms (two one year periods) for a total of three (3) years of Period of Performance before the SOW or Order form must be re-signed with updated pricing and terms.
9.5. Beginning on the first anniversary of the Effective Date, and on each anniversary thereafter during the Term, the Fees payable under this agreement shall automatically increase by 5% over the fees in effect immediately prior to such anniversary, unless otherwise agreed in writing by Parties.
9.6. Customer acknowledges any Professional Services that are not rendered due to non-response from Customer after 3 consecutive outreach efforts are still subject to invoice and Customer agrees to pay.
10.1. If offered, trial or beta offerings are provided “AS IS” and “AS AVAILABLE,” without warranties, and may be discontinued at any time. Support for trial or beta Offerings is limited. Company disclaims all liability for trial or beta Offerings.
11.1. Ownership of Customer Data. Customer owns all rights, title and interest in and to Customer Data and is solely responsible for the accuracy, integrity, quality, legality, reliability, appropriateness of and copyright permissions of any Customer Data and for adopting procedures to identify and correct errors and omissions in Customer Data.
11.2. Indemnification. Customer is solely responsible for, and assumes all liability in connection with, any infringement or misappropriation of trade secret claims relating to Customer Data being hosted. Customer further agrees to defend and indemnify Company against all infringement claims arising out of or relating to Customer Data in accordance with the provisions of paragraph 19.1.
11.3. Data Replication. Company does not guarantee or support data replication services outside of the Offerings.
11.4. Return of Customer Data. Upon termination or expiration of an Offering or this Agreement, Customer is responsible for retrieving all Customer Data from the Offering. Ninety (90) days after termination or expiration of an Offering or this Agreement, Company may delete or destroy all Customer Data in the Offering. Notwithstanding the foregoing, Company may retain Customer Data in backup media for an additional period of up to twelve (12) months, or longer if required by law.
12.1. Recipient agrees to protect and hold all Confidential Information in confidence and in the same manner as Recipient protects the confidentiality of its own proprietary and confidential materials of similar kind, but in no event with less than a reasonable standard of care. Recipient will only use Confidential Information for the purposes of this Agreement, related internal administrative purposes and business discussions between the parties related to any Offerings. Recipient may only disclose Confidential Information to its affiliates, employees, contractors and business partners on a "need to know" basis, provided that they are bound by written confidentiality obligations no less stringent than those in this Agreement.
12.2. These confidentiality restrictions and obligations will remain in effect until the information ceases to be Confidential Information. Upon the request of Discloser, the Recipient shall promptly return all copies of the Confidential Information, and any documents derived from the Confidential Information, or at the Discloser's option, shall certify in writing that all copies of the Confidential Information and derivative documents have been destroyed.
12.3. The Confidentiality obligations described above do not apply to information that:
13.1. Each party will implement reasonable and appropriate measures to protect Customer Data and prevent any unauthorized person or entity from gaining access to Customer Data.
13.2. Customer is solely responsible for verifying that its users are properly authorized to access its Customer Data in accordance with applicable law, regulatory requirements, and obligations under this Agreement. Company assumes no responsibility to verify nor will it contest Customer's representation that its users are properly authorized to access Customer Data; therefore, Company assumes no responsibility for access granted improperly by Customer to unauthorized parties.
13.3. Upon becoming aware of a Security Incident, Company will notify Customer without undue delay (in any case no later than 72 hrs. from the time Company becomes aware of the Security Incident) and will provide information relating to the Security Incident as it becomes known or as is reasonably requested by Customer to the extent practicable under the circumstances. If practicable under the circumstances, the notice will include: (i) the nature of the Security Incident; (ii) the categories and approximate volume of Customer Data or systems affected; (iii) the date and time the Security Incident was discovered; and (iv) the mitigation steps taken or planned by the Company. Company shall provide supplemental updates as material information becomes available.
13.4. Each party, upon the discovery of a credible threat to the security and integrity of the other party’s network, may immediately disconnect any remote connections to the other party’s network until such time as the threat has been eradicated and recovery and restoration is at an acceptable level as determined by mutual agreement of the parties. Upon disconnection, the party will provide notice to the other party without undue delay. During the term of any disconnection, the parties shall maintain ongoing communications regarding the provisioning of the Offerings.
13.5. In the event Company receives judicial process or a government request for access to Customer Data, logging, or other related information, to the extent legally permitted, Company will provide Customer prompt notice of such request/order and reasonably cooperate with Customer’s efforts to limit disclosure.
13.6. All Parties will mutually cooperate and comply with requests from auditors or certification bodies for information about the operation of information systems related to the Offerings and furnish answers quickly and truthfully in response to those requests. As part of the Offering, the Company will support one audit or certification process under this paragraph per every 12 month period at no additional cost to the Customer. In the event additional support under this paragraph is needed, the Company will provide this support on a reasonable time-and-materials basis, and Customer agrees to pay for such support.
14.1. Cuick Trac provides anti-virus and anti-malware software. Pre-existing viruses or malware on Customer’s system may require additional Incident Response services charged at time and materials rates.
14.2. Customer acknowledges that (a) no security solution is 100% effective and may be circumvented by previously unknown or intentionally installed malware; (b) downloading files from unverified sources creates security risks; and (c) Service Provider does not warrant complete virus/malware removal or data recovery from corrupted or encrypted files.
14.3. Service Provider will comply with lawful orders requiring disclosure of logs, configuration files, and data to law enforcement and will make reasonable efforts to preserve information in its original state for forensic investigation, but provides no guarantee of such preservation.
15.1. Upon Service Provider deprovisioning a Customer from the Cuick Trac secure virtual enclave, all Customer, data will be destroyed. It is the responsibility of Customer to retrieve any and all of their data from the Cuick Trac secure virtual enclave before the final date of service. After the last day of the Cuick Trac service, all of Customer’s previously dedicated Cuick Trac storage will be securely wiped in accordance with DOD sanitization requirements for reuse of hard-drives. Retrieval of Customer data from their previously allocated storage is not possible and the Service Provider shall be held harmless and indemnified by Customer against, any claims, costs, fees, or expenses incurred by Customer that arise or result from data destruction after the end of this Agreement.
16.1. Any IP addresses provided to Customer by Service Provider during the term of the Agreement are managed by Service Provider and Service Provider will retain these IP addresses after termination of the agreement, meaning that they may not be transferred or utilized by Customer after termination of the Agreement.
17.1. Each Party to the Agreement retains ownership of its respective pre-existing Intellectual Property, with no transfer of such ownership rights implied or any licensing rights beyond those required to fulfill the terms of this agreement implied.
17.2. Customer shall have title to any Intellectual Property it creates while using the Offerings. Company shall have title to any Intellectual Property it creates while providing services to customer. In the event the Parties jointly create Intellectual Property, the Party shall have joint ownership of the Intellectual Property.
18.1. The Offerings may integrate with third-party products or services. Customer’s use of such third-party services is subject to their terms, and Company disclaims all liability for third-party services. Pass-through terms may apply as identified in the Order Form or SOW.
18.2. As part of the Offerings, Company will acquire certain licenses from Microsoft under a services Service Provider License Agreement (“SPLA”). The SPLA incorporates the terms and conditions of another Microsoft document, called the Service Provider Use Rights (or “SPUR”). Company’s licensing of Microsoft software, and Customer’s use of such software, must always comply with the terms of the SPLA and SPUR. If Microsoft modifies the terms of the SPLA or the SPUR, Company may be required, and will be permitted without prior notice to Customer to modify the Offerings to comply with the modified terms of the SPLA or SPUR, as applicable.
18.3. Customer warrants and represents that all other hosted applications will be properly licensed, and that all such licenses shall be maintained by Customer throughout the entire term of the Agreement.
19.1. No Termination for Convenience. Except as expressly provided in this Section, neither party may terminate this Agreement or any Order Form or SOW for convenience or prior to the expiration of the applicable term.
19.2. Termination for Cause. Either party may terminate this Agreement or an applicable Order Form or SOW upon written notice if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice specifying the breach in reasonable detail.
19.3. Termination for Nonpayment. Company may suspend Customer’s access to the Offering or terminate this Agreement or any Order Form or SOW upon written notice if Customer fails to pay any undisputed amounts when due and does not cure such failure within fifteen (15) days after receipt of notice of delinquency.
19.4. Termination for Insolvency. Either party may terminate this Agreement immediately upon written notice if the other party: (a) becomes insolvent; (b) makes an assignment for the benefit of creditors; (c) has a receiver or trustee appointed over substantially all of its assets; or (d) becomes subject to any bankruptcy or similar proceeding that is not dismissed within sixty (60) days.
19.5. Upon expiration or termination of this Agreement for any reason, Company shall promptly: (a) deliver to Customer all Deliverables and other documents, work product, and materials, whether or not complete, prepared by or on behalf of Company in the course of performing the Services for which Customer has paid; (b) return to Customer all Customer-owned property, equipment, or materials in its possession or control; and (c) remove any Company-owned property, equipment, or materials located at Customer’s locations.
20.1. It is understood and acknowledged that in providing the Services, Company acts in the capacity of an independent contractor and not as an employee or agent of the Customer. Company shall control the conditions, time, details, and means by which Company performs the Services. Customer shall have the right to inspect the work of Company as it progresses solely for the purpose of determining whether the work is completed according to this Agreement. Company has no authority to commit, act for or on behalf of Customer, or to bind Customer to any obligation or liability. Company shall not be eligible for and shall not receive any employee benefits from Customer and shall be solely responsible for the payment of all taxes, FICA, federal and state unemployment insurance contributions, state disability premiums, and all similar taxes and fees relating to the fees earned by Company hereunder.
21.1. Each party will be responsible for its own compliance with applicable law, as well as all legal requirements related to (a) use of the Offerings, (b) Export Controls and Sanctions, and (c) disclosure of data. Customer warrants to Company that it will collect, use, transfer and otherwise Process any Personal Data collected by or through the Products or that Customer discloses to Company under this Agreement in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments.
21.2. Customer warrants that (a) it is not a Sanctions Target; and (b) it is not designated on the Entity List administered by the U.S. Department of Commerce’s Bureau of Industry and Security and is not a target of any similar Export Control restrictions. Customer agrees that it will comply with all applicable Export Controls and Sanctions when using the Offerings; will not cause Company to violate Export Controls or Sanctions; will not allow use of the Offerings by any Sanctions Target; and will not otherwise use the Offerings to engage in or facilitate transactions with any Sanctions Target. Company reserves the right to refuse, suspend or cancel transactions or Offering use for Export Controls and Sanctions compliance reasons.
21.3. Export Regulations. Customer acknowledges that Trade Controls may restrict use, disposition, export, reexport, transfer or other action taken with respect to the Offerings and any other goods, services, software and technical information provided in connection with this Agreement. Customer warrants and represents that it, its Affiliates, and anyone who uses the Offerings on behalf of the Customer, (1) are not a Sanctioned Person and (2) none of Customer, its Affiliates, and anyone who uses Offerings on behalf of the Customer shall provide any items under this Agreement to a Sanctioned Person.
22.1. Customer will indemnify, defend and hold harmless Company against any fees, expenses, and damages resulting from any c (including a claim by an Authorized User) that:
(i) Customer's grant of access to or misuse of the Offerings, harms any person, violates any law, or violates that third party's intellectual property rights, privacy, or other rights, (ii) Customer has breached any third party terms, or (iii) Customer Data harms any person, violates any law, or violates that third party's intellectual property rights, privacy, or other rights.
22.2. Company will defend Customer with counsel of Company’s choosing against any action based on a third-party claim (“Third-party Claim”) alleging that the Offerings infringe or misappropriate a patent, copyright, trade secret, or other intellectual property right in the applicable jurisdiction of any third party. Customer may retain counsel at its own expense subject to Section 19.3 Company shall have no duty to defend or indemnify Customer for infringement claims based on a combination of, or system using, both the Offerings and Customer’s data or actions.
22.3. Company will indemnify Customer for damages finally awarded against Customer, arising from any such Third-party Claim; provided, however, that
22.4. Customer gives Company prompt written notice of such Third-party Claim,
22.5. Customer fully cooperates with Company in the defense and settlement thereof,
22.6. Company is given full control of the defense of such Third-party Claim and any settlement or compromise thereof, and
22.7. Customer complies with Company’s direction to cease using any Offerings that in Company’s reasonable judgment may be ruled to cause an infringement of a third party's intellectual property rights.
22.8. Customer may retain counsel at its own expense subject to Section 19.3, but such expense shall not be included in Company’s indemnity obligation. Company will not agree to any settlement of any claim that requires payment by Customer to a third party, without Customer’s consent.
22.9. If Customer's use of an Offering is impacted as a result of an infringement or misappropriation Third-party Claim or if Company believes such a Third-Party Claim is likely, then Company may, at its option and expense, either (i) procure for Customer the right to continue using the Product or Documentation, or (ii) replace or modify the Offering so that it no longer infringes or misappropriates a patent, copyright, or trade secret. If Company deems (i) or (ii) not feasible, Company will terminate all Offerings rendered unusable and return the unused portion of the fees paid by Customer for the Offering.
22.10. Company shall have no liability to Customer if the Third-party Claim is based upon or arises out of
22.11. use of any third party products or services,
22.12. modification of the Offering based on Customer's specifications,
22.13. Customer's violation of the terms of this Agreement, or
22.14. third party content entered by Customer into the Offering, or
22.15. the actions, or failure to take action, of a third party.
THIS SECTION STATES CUSTOMER'S SOLE REMEDY AND PROVIDERS SOLE LIABILITY WITH RESPECT TO ANY CLAIM OF INFRINGEMENT.
23.1. Company warrants that the Offerings will perform substantially as described in the Documentation and that Professional Services will be performed in a professional and workmanlike manner.
23.2. Company warrants that the Offerings (except trial or beta Offerings) will be free from Defects under normal use and circumstances. During the Subscription Period, at no additional cost to Customer and as Customer's sole and exclusive remedy for Company’s failure to meet this limited warranty, Company will use reasonable efforts to provide a Correction for any Defect in accordance with the support guidelines, provided that Customer promptly notifies Company in writing upon discovery of any such Defect and Company’s investigation discloses that such Defect exists. Customer shall provide a listing of output and other such data as may be required to reproduce the Defect.
23.3. This limited warranty will be void if the Defect is caused by (i) the use or operation of the Offerings with an application or in an environment other than that described in the Documentation or recommended in writing by Company, (ii) modifications to the Offerings that were not made by Company, (iii) Misuse, or (iv) failure to implement Corrections or updates.
23.4. The express warranties set forth in this Limited Warranties Section do not apply to errors or malfunctions caused by (1) Customer's equipment, (2) software not licensed from or approved in writing by Company, (3) Misuse, (4) Customer's failure to use the most recent Offering version and all Corrections, (5) use of the Products in combination with materials not provided, specified or approved in writing by Company, (6) improper installation by Customer, third party personnel contracted to operate the Offerings on behalf of Customer, or a third party not authorized in writing by Company, or (7) any other cause not directly attributable to Company.
23.5. All warranties described above are personal to and intended solely for the benefit of the Customer and do not extend to any third party, including Affiliates.
23.6. EXCEPT AS EXPRESSLY SET FORTH IN THIS LIMITED WARRANTIES SECTION AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER COMPANY NOR ITS LICENSORS MAKE ANY EXPRESS, IMPLIED OR STATUTORY WARRANTIES, TERMS, CONDITIONS, OR REPRESENTATIONS INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. COMPANY DOES NOT WARRANT OR REPRESENT THAT THE PRODUCTS WILL BE TIMELY, COMPLETE, RELIABLE, ADEQUATE, ACCURATE, USEFUL, SECURE OR ERROR-FREE. ALL MOBILE APPLICATIONS AND SOFTWARE DOWNLOADS ARE PROVIDED AS-IS WITH NO WARRANTY AND COMPANY ACCEPTS NO LIABILITY FOR ANY DAMAGES DIRECTLY OR INDIRECTLY CAUSED BY SUCH APPLICATIONS OR DOWNLOADS.
THE LIMITATIONS OF LIABILITY APPLY TO DAMAGES ARISING FROM ANY CAUSE OF ACTION WHATSOEVER, INCLUDING WITHOUT LIMITATION CONTRACT, WARRANTY, STRICT LIABILITY, TORT, OR NEGLIGENCE, EVEN IF SUCH LOSS OR DAMAGE WAS FORESEEABLE OR CONTEMPLATED BY THE PARTIES.
EXCEPT FOR CUSTOMER'S VIOLATION OF COMPANY’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, BUSINESS INTERRUPTIONS, LOSS OF REVENUE OR PROFITS, LOST MANAGEMENT TIME, SAVINGS, DATA OR GOODWILL, OR ANY PENALTIES, FINES OR EXPENSES.
TOTAL AGGREGATE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THESE TERMS SHALL NOT EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES GIVING RISE TO THE CLAIM IN THE 12 MONTHS PRECEDING THE EVENT. THE FOREGOING LIMITATIONS DO NOT APPLY TO CUSTOMER’S PAYMENT OBLIGATIONS OR INDEMNIFICATION OBLIGATIONS.
NOTHING IN THIS LIMITATION OF LIABILITY SECTION OR OTHERWISE IN THE AGREEMENT SHALL EXCLUDE OR IN ANY WAY LIMIT EITHER PARTY'S LIABILITY TO THE OTHER FOR (1) FRAUD, (2) DEATH OR PERSONAL INJURY CAUSED BY THAT PARTY'S GROSS NEGLIGENCE, OR (3) ANY LIABILITY TO THE EXTENT THAT IT MAY NOT BE EXCLUDED OR LIMITED AS A MATTER OF LAW.
25.1. Company may use Customer’s name and logo to identify Customer as a customer, unless Customer opts out by written notice.
26.1. Neither party may assign these Terms without the other’s prior written consent, except that Company may assign to an affiliate or in connection with a merger, acquisition, or sale of all or substantially all assets. Company may use subcontractors and remains responsible for their compliance with these Terms.
27.1. Neither party is liable for failure to perform due to events beyond its reasonable control, including natural disasters, war, terrorism, labor disputes, government actions, or internet failures. Performance is excused for the duration of the force majeure event.
28.1. These Terms, together with all Order Forms, SOWs, and referenced Company policies, constitute the entire agreement between the parties and supersede all prior agreements. In the event of conflict, the order of precedence is: (1) Order Form, (2) SOW, (3) Customer Responsibility or Shared Responsibility Matrix, (4) these Terms, (5) Company policies. If any provision is held invalid, the remainder will remain in effect. No waiver is effective unless in writing. Provisions intended to survive termination will do so.
29.1. Each of the Parties hereto shall use reasonable efforts to, from time to time at the request and sole expense of the other Party without any additional consideration, furnish the other Party such further information, execute and deliver such additional documents, instruments, and conveyances, and take such other actions and do such other things, as may be reasonably necessary or appropriate to carry out the provisions of this Agreement and give effect to the transactions contemplated hereby. Each Party shall deliver all communications in writing either in person, by certified or registered mail, return receipt requested and postage prepaid, by facsimile or email (with confirmation of transmission), or by recognized overnight courier service, and addressed to the other Party at the addresses set forth herein (or to such other address that the receiving Party may designate from time to time in accordance with this section).
29.2. This Agreement and all matters arising out of or relating to this Agreement, including tort and statutory claims are governed by, and construed in accordance with, the laws of Delaware, (including its statutes of limitations) and Delaware choice of law statutes, without giving effect to any conflict of laws provisions thereof that would result in the application of the laws of a different jurisdiction.
29.3. Informal Dispute Resolution. In the event of any Dispute arising from or relating to this Agreement or the breach thereof, the parties shall endeavor to settle the Dispute. To this effect, the management-level representatives from each party shall consult and negotiate with each other in good faith and attempt to reach a just and equitable solution satisfactory to both parties. If a dispute is not resolved within sixty (60) days, then the Dispute shall be settled by final and binding arbitration, as described below.
29.4. Arbitration. If a Dispute is not resolved at the end of the sixty (60) day period described in Subsection (A) above, then the Dispute shall be settled by final and binding arbitration in accordance with the American Arbitration Association ("AAA") Commercial Arbitration Rules. A single arbitrator appointed as provided in the AAA Commercial Arbitration Rules will be an attorney experienced in computer software, licensing, and information technology disputes. The arbitrator will have exclusive authority to resolve any and all disputes relating to procedural and substantive questions concerning the arbitration, including choice of venue and choice of law issues, and the formation, interpretation, applicability, scope, and enforceability of this Agreement to arbitrate. The arbitration proceeding shall be conducted in the English language and shall occur in the Dallas, Texas metropolitan area, or, with the consent of the arbitrator and the parties, another mutually agreeable metropolitan area. The arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. §§1-16, and judgment upon the award rendered by the arbitrator may be entered by any court of competent jurisdiction.
The arbitrator shall award appropriate fees and costs to the prevailing party. If it becomes necessary for either party to compel arbitration or to enforce an arbitration award, that party may bring an action in any court of competent jurisdiction and the prevailing party shall recover from the other party its costs and expenses, including court costs and reasonable attorneys' fees (including allocable costs of in-house counsel). The arbitration and all related proceedings and discovery will take place pursuant to a protective order entered by the arbitrator that protects the confidential nature of the parties' proprietary and confidential information. No arbitration award may provide a remedy beyond those permitted under this Agreement, and any award providing a remedy not permitted under this Agreement will not be valid and will be vacated. No Dispute may be brought as a class action, and neither party may act as a class representative or participate as a member of a class of claimants with respect to any Dispute. BOTH PARTIES HEREBY WAIVE ALL RIGHT OR ENTITLEMENT TO TRIAL BY JURY IN CONNECTION WITH ANY DISPUTE THAT ARISES OUT OF OR RELATES IN ANY WAY TO THIS AGREEMENT.
29.5. Litigation Rights. Either party may, without waiving any remedy under this Agreement, seek temporary or permanent injunctive relief including without limitation equitable relief from any court of competent jurisdiction to protect its Confidential Information, non-solicitation rights, license rights and intellectual property rights, regardless of the arbitration requirements. Company reserves the right to pursue collections activity or legal action in a court of competent jurisdiction to compel payment due hereunder and, in such a case, Company shall be entitled to recover its costs and reasonable attorneys' fees, regardless of the arbitration requirements.
29.6. This Agreement contains the entire understanding of the Parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous written or oral understandings, agreements, representations, and warranties with respect to such subject matter. The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction. The Parties may not amend this Agreement except by written instrument signed by the Parties. No waiver of any right, remedy, power, or privilege under this Agreement (“Right(s)”) is effective unless contained in a writing signed by the Party charged with such waiver. No failure to exercise, or delay in exercising, any Right operates as a waiver thereof. No single or partial exercise of any Right precludes any other or further exercise thereof or the exercise of any other Right. The Rights under this Agreement are cumulative and are in addition to any other rights and remedies available at law or in equity or otherwise. This Agreement is binding upon and inures to the benefit of the Parties and their respective successors and permitted assigns. Except for the Parties, their successors and permitted assigns, there are no third-party beneficiaries under this Agreement. This Agreement may be executed in counterparts, including by electronic signature.
