TERMS OF SERVICE
These Terms of Service (the “Terms” or “Agreement”) apply to and are incorporated by reference into the Order Form(s) (defined below) made by and between HackEDU, Inc., d/b/a Security Journey (“Provider”) and the Customer identified in the Order Form(s). Each person accepting and/or executing these Terms represents and warrants that it has the power and authority to accept and bind Customer to these Terms.
Revision date: August 1, 2023
- Services, Use, Conduct and Suspension
1.1 Services. Provider shall provide the Services and other services as described in this Agreement and/or set forth in the relevant duly acknowledged order form(s) under this Agreement (hereinafter “Order Form(s)”). Subject to continued compliance with the terms of this Agreement, including full payment of applicable fees, Provider grants to Customer a limited, non-exclusive, non-transferable, worldwide right to access and use, and permit Authorized Users to access and use, the Services solely for internal business purposes in accordance with any documentation provided by Provider under the terms and conditions of this Agreement during the Term. “Authorized User(s)” or “User(s)” means individual employees and independent contractors of Customer who have a need, and are authorized by Customer, to use the Services. Neither Party will have any obligation with respect to any draft Order Form unless and until it is acknowledged in writing by the Customer. Except as otherwise provided herein, if any terms and/or conditions of this Agreement conflict with any terms and/or conditions of any Order Form, the terms and conditions set forth in the Order Form will control. Customer acknowledges and agrees that the Services provided by Provider are not exclusive to Customer and that Provider may provide such Services to other entities. While Provider uses reasonable efforts to keep the Services accessible, the Services may be unavailable from time to time. Customer understands and agrees that there may be interruptions to the Services and/or access to Customer’s account in the Services due to circumstances both within Provider’s control (such as, routine maintenance) and outside of Provider’s control. In addition, Provider expressly reserves the exclusive right to, without prior notice, at any time and from time to time (i) offer new, additional, substitute, modified or amended services, provided that any such new, additional, substitute, modified or amended services do not materially degrade Customer’s use of the Services, and (ii) discontinue offering all or any particular Services. In the event Provider discontinues offering all or any particular Service(s), Provider shall provide Customer with a pro-rata refund for any prepaid but unused Services as Customer’s sole and exclusive remedy therefor.
1.2 Use of the Services. Customer is solely responsible for obtaining, maintaining, installing and supporting all ‘Internet’ access, computer hardware, software, telecommunications capabilities and other equipment and services (specifically including responsibility for providing appropriate personal computers and mobile devices) needed for it and its Authorized Users to access and/or use the Services. Customer shall ensure that its network and systems comply with the relevant specifications provided by Provider from time to time and shall provide Provider with information as may be required by Provider in order to provide the Services. To the extent any of the Services include downloadable software modules, Provider will not be responsible for any compatibility of such Services with any other software or system.
1.3 Permitted Use.
1.3.1 The right to access and/or use the Services is on a per-User basis and therefore Provider will associate a unique identifier with each individual that has the right to access and/or use the Services and such unique identifier cannot be transferred or re-assigned to other individuals. The number of individuals under Customer’s account that can access and/or use the Services shall be set forth in the applicable Order Form. Customer may permit no more than the specified number of individual Users indicated in the applicable Order Form to access and/or use such Services, and will determine the access controls for its Users. Customer represents and warrants that its Users of the Services will abide by the terms and conditions of this Agreement and Order Forms and Customer acknowledges and agrees that it shall be fully liable for any User’s breach of the terms and conditions set forth in this Agreement and/or any Order Form.
1.3.2 The period of time the Customer may access and/or use the Services shall be set forth in the applicable Order Form (“Subscription Period”). The Subscription Period shall commence on the start date included in the Provider’s invoice (“Start Date”) and continue through the length of time shown in the Order Form.
1.3.3 Customer is responsible for the management and administration of any access controls such as email addresses, logons and IDs (and any associated passwords and access privileges) to or for the use of the Services (collectively, “Identifiers”), in accordance with this Agreement and the Order Form and subject to the approval of Provider. Customer shall strictly maintain the confidentiality of all Identifiers, and Customer is solely responsible and liable for all transactions, activities, and other consequences resulting from the use and/or disclosure of such Identifiers. Customer shall promptly report to Provider any breach of confidentiality with respect to such Identifiers. Customer agrees to maintain the accuracy and completeness of information provided to Provider, and agrees to provide any changes to Provider within ten (10) days after such change.
1.3.4 In no event shall Customer allow the Services to be accessed and/or used by parties other than Customer and its Authorized Users. Customer agrees to use commercially reasonable efforts to prevent unauthorized access to, and/or use of the Services, and notify Provider promptly of any such unauthorized access to and/or use of the Services. Provider reserves the right to refuse use and/or access to such Services by any individual party other than Customer and its Authorized Users.
1.4 Prohibited Conduct. Except as expressly permitted hereunder, Customer shall not, directly or indirectly, without the express, prior written consent of Provider (i) use or permit the use of, reproduce and/or otherwise duplicate, disclose, distribute, modify, encumber, time-share, license, sublicense, rent, lease, and/or transfer the Services and/or any portion thereof, and/or any of Customer’s rights thereto, (ii) merge any Services or any portion thereof with any other program and/or materials, (iii) reverse engineer, decompile, disassemble, extract, and/or otherwise derive and/or attempt to derive the source code of any Services and/or any other compiled software provided or made available by Provider hereunder, (iv) adapt, translate, localize, port, or otherwise modify any Services and/or any other compiled software provided or made available by Provider hereunder, (v) remove, obliterate, and/or cancel from view any copyright, trademark, and/or other proprietary and/or confidentiality notice and/or legend appearing on and/or in any materials provided or made available by Provider hereunder, and/or fail to reproduce any such notice and/or legend on any copy made of any such materials, (vi) take any action that materially interrupts and/or interferes with, or that might reasonably have been expected to materially interrupt and/or interfere with, the Services, Provider’s business operations and/or other clients, (vii) copy or imitate part or all of the design, layout and/or look and feel of the Services in any form or media and/or (viii) permit any other user, person and/or entity to engage in any of the foregoing conduct. In addition, Customer shall not access, store, distribute or transmit any Viruses or any material during the course of its use of the Services that (i) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive, (ii) facilitates illegal activity, and/or (iii) causes damage or injury to any person or property. “Virus” shall mean anything or device (including without limitation any software, code, file or program) which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device, prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise) and/or adversely affect the User experience, including worms, ‘Trojan’ horses, viruses and other similar things or devices.
1.5 Suspension of Services. Notwithstanding anything herein to the contrary, Provider reserves the right, without liability to the Customer, to disable or suspend the Customer’s access to the Services in the event (a) of any breach or anticipated breach of this Agreement and/or any Order Form, (b) Customer and/or its Users’ access to and/or use of the Services disrupts or poses a security risk to the Services and/or any other client, which may harm Provider’s systems and/or any provider of any third-party services and/or may subject Provider and/or any third-party to liability, (c) Customer and/or its Authorized Users are using the Services for fraudulent or illegal activities, and/or (d) Provider’s continued provision of any of the Services to the Customer and/or its Users is prohibited by applicable law.
1.6 Third-Party Providers. Customer acknowledges and agrees that Provider utilizes third-party service providers to host and provide the Services and store Customer Content and the protection of such data will be in accordance with such third party’s safeguards for the protection of the security, confidentiality, and integrity of Customer’s data, which shall be governed by applicable laws and regulations, as well as the contract entered into between Provider and the third-party. Customer agrees that Provider may use third party service providers to provide the Services described herein and Provider shall be liable for the negligent acts or omissions of any such third-party service provider.
1.7 Errors, Inaccuracies, Omissions & Performance. Occasionally there may be information on the Services that contain typographical errors, inaccuracies, and/or omissions that may relate to services, information, and data. Provider reserves the right to (i) correct any errors, inaccuracies, and/or omission and/or (ii) make changes to content, descriptions, service and/or other information without obligation to issue any notice of such changes, except as prohibited by law.
1.8 Maintenance and Support. During the Term or as otherwise specified in the applicable Order Form, Provider will make available to the Customer updates, patches and bug fixes with respect to the Services as may, from time to time, be developed and made generally available by Provider to all its customers. Customer may receive electronic support services during Provider’s normal business hours.
- Customer Content
2.1 Customer Content. For purposes of this Agreement, “Customer Content” means any elements of text, information, graphics, images, photos, designs, artwork, logos, trademarks, service marks, and other materials and/or content which Customer provides in connection with any Services. Customer is responsible for providing all Customer Content, criteria, and/or information and is responsible for the accuracy, quality, integrity and legality of such data and of the means by which Authorized Users access and use the Customer Content. Customer hereby grants Provider a worldwide, non-exclusive right and license to reproduce, distribute and display the Customer Content as necessary to provide the Services. Customer represents and warrants that Customer owns all Customer Content or that Customer has permission from the rightful owner to use each of the elements of Customer Content; and that Customer has all rights necessary for Provider to use the Customer Content in connection with the Services. Customer and its licensors retain title, all ownership rights, and all IP (as defined in Article 7), in and to the Customer Content and reserve all rights not expressly granted to Provider hereunder. Provider is not responsible for any unauthorized access to, alteration of, and/or the deletion, destruction, damage, loss and/or failure to store any of, Customer Content. Customer is responsible for taking appropriate steps to maintain security, protection and backup of any and all Customer Content.
2.2 Indemnification by Customer. Customer shall indemnify, defend and hold Provider and its officers, associates, employees, contractors and agents harmless from and against any and all liabilities, losses, costs, damages, demands and expenses, including reasonable attorney fees, arising out of and/or relating to any claim (“Claim”) that the provision and/or utilization of any Customer Content or any portion thereof constitutes an infringement, violation, trespass, contravention or breach of any patent, copyright, trademark, license or other property or proprietary right of any third party, or constitutes the unauthorized use or misappropriation of any trade secret of any third party. Provider shall provide notice to Customer of any Claim immediately upon becoming aware of the same and may reasonably participate in such defense, at its sole expense.
3.1 Fees and Payment Terms. In consideration of the provision of the Services described herein and/or in any Order Form, except as set forth in Section 14 hereof, Customer agrees to pay Provider the fees set forth in the Order Form, which may include without limitation fees related to the Services for the Subscription Period identified therein and/or training and support. All fees due and payable by the Customer to Provider hereunder must be paid in full without any deduction, set-off, counterclaim or withholding of any kind unless required by law. The fees reflected in such Order Form shall be in U.S. dollars. Reasonable travel and out-of-pocket expenses are not included in the fees set forth in the relevant Order Form(s) and will be invoiced separately if necessary. Provider will provide Customer with an invoice for fees that become due hereunder. Unless otherwise set forth herein and/or in an Order Form, each invoice shall be due and payable by Customer within thirty (30) calendar days after Customer’s receipt of such invoice. Provider may, at its sole discretion, utilize a properly drafted purchase order (“Purchase Order”) in lieu of an Order Form. Such Purchase Order must include a statement that references this Agreement as the sole set of terms governing the Purchase Order. The Purchase Order shall also include the following elements from the corresponding Order Form submitted by Provider: (i) Order Form reference number, (ii) item and description, (iii) quantity, (iv) unit and total price, and (v) Subscription Period. The terms and conditions related to the use of an Order Form herein shall also apply to the use of a Purchase Order.
3.2 Taxes. Customer fees are exclusive of taxes, levies, duties or similar governmental assessments of any kind (excluding taxes based on Provider's income, property and employees). Customer will be responsible for paying any and all such taxes, which will be added to Provider’s invoice at the prevailing rate.
3.4 Late Payment. In the event that fees are not paid when due, including without limitation due to an invalid or expired credit card number, interest will be payable and calculated daily at a rate of one and one half percent (1.5%) per month and Provider may, without liability to Customer, in addition to other available remedies, disable the password, account and access to all or part of the Services and immediately suspend Services. In the event of the foregoing, Provider shall not be obligated to provide any or all of the Services until such fees are paid in full. Customer acknowledges and agrees that Provider shall not be in breach of this Agreement or liable for failure to perform in the event Customer fails to make payments when due hereunder.
4.1 Term. This Agreement shall commence on the Start Date and shall continue for the Subscription Period, unless otherwise terminated earlier in accordance with the terms and conditions of this Agreement.
4.2 Automatic Renewal. Upon expiration of the Subscription Period, this Agreement will automatically renew for additional Subscription Periods unless either Party provides written notice to the other Party of its intent not to renew at least thirty (30) days prior to the end of the then-current Subscription Period (for such termination to take effect at the end of the then-current Subscription Period). Upon Provider’s receipt of such written termination notice, Provider shall terminate the Agreement at the end of the then-current Subscription Period and Customer’s access to and use of the Services will no longer be available.
4.3 Definition. The initial Subscription Period together with any and all renewal Subscription Periods shall be collectively referred to herein as the “Term.”
5.1 Termination. If a Party materially breaches this Agreement and/or Order Form (the “Defaulting Party”), and the Defaulting Party does not cure such breach within thirty (30) calendar days after its receipt of written notice of material breach, the non-defaulting Party may terminate this Agreement and/or Order Form upon written notice to the Defaulting Party. Termination of this Agreement and/or Order Form will be without prejudice to any other rights and remedies that the non-defaulting Party may have under this Agreement, the Order Form and/or at law and/or in equity.
5.2 Effect of Termination.
5.2.1 In the event Customer terminates this Agreement and/or any Order Form pursuant to Section 5.1 or either Party terminates this Agreement and/or any Order Form due to a Force Majeure Event, upon termination Customer will pay all outstanding fees, charges and expenses incurred through the effective date of termination.
5.2.2 In the event Provider terminates this Agreement and/or any Order Form pursuant to Section 4.2 or 5.1, upon termination Customer will pay all outstanding fees, charges and expenses owed through the then-current Term of this Agreement and/or Order Form, as applicable, as if such Agreement and/or Order Form had not been terminated.
5.2.3 Upon termination or expiration of this Agreement, Customer shall immediately cease all use of the Services, and shall immediately destroy all copies of its data and materials, including any downloaded software and/or Customer Content, uploaded to and connected with the Services. Provider may, at its option, request written proof that such data, materials and content has been deleted.
6.1 Confidential Information. During the Term of this Agreement, the Parties may have access to certain information that is not generally known to others including any and all information relating to the Party and its business including without limitation its business, legal, and operational practices, financial, technical, commercial, marketing, competitive advantage and/or other information concerning the business and affairs, partnerships and potential partnerships, business model, fee structures, employees, funding opportunities, metrics, know-how, systems, procedures and techniques that has been or may hereafter be provided or shown to the other Party, regardless of the form of the communication and the terms and conditions of this Agreement and Order Forms (“Confidential Information”). The Party disclosing Confidential Information shall be referred to herein as the “Disclosing Party” and the Party receiving Confidential Information shall be referred to herein as the “Receiving Party”.
6.2 Receiving Party. Receiving Party agrees not to use or disclose the Confidential Information and may disclose the Confidential Information only as necessary and appropriate to perform its obligations hereunder and to receive the benefit of the Services in accordance with this Agreement to its officers, directors, employees, agents and subcontractors (and their employees) (“Representatives”) who have a need to know such Confidential Information solely in connection with this Agreement. The Receiving Party will cause such Representatives to comply with this Agreement and will assume full responsibility for any failure to comply with the terms of this Agreement. The Receiving Party will not transfer or disclose any Confidential Information to any third party without the Disclosing Party’s prior written consent and without such third party having a contractual obligation (consistent with this Article 6) to keep such Confidential Information confidential. The Receiving Party will not use any Confidential Information for any purpose other than to perform its obligations under this Agreement.
6.3 Exclusions. Confidential Information does not include information that (i) is obtained by the Receiving Party from the public domain without breach of this Agreement and independently of the Receiving Party’s knowledge of any Confidential Information, (ii) was lawfully and demonstrably in the possession of the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information, (iii) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information, and/or (iv) becomes known by the Receiving Party from a third party independently of the Receiving Party’s knowledge of the Confidential Information and is not subject to an obligation of confidentiality.
6.4 Legal Requirements. If the Receiving Party is requested or required to disclose any of the Disclosing Party’s Confidential Information under a subpoena, court order, statute, law, rule, regulation or other similar requirement (a "Legal Requirement"), the Receiving Party will, if lawfully permitted to do so, provide prompt notice of such Legal Requirement to the Disclosing Party so that the Disclosing Party may seek an appropriate protective order or other appropriate remedy or waive compliance with the provisions of this Agreement. If the Disclosing Party is not successful in obtaining a protective order or other appropriate remedy and the Receiving Party is legally compelled to disclose such Confidential Information, or if the Disclosing Party waives compliance with the provisions of this Agreement in writing, the Receiving Party may disclose, without liability hereunder, such Confidential Information solely to the extent necessary to comply with the Legal Requirement.
6.5 Remedy. Each Party acknowledges that a breach of this Article 6 may result in irreparable and continuing damage to the Disclosing Party for which monetary damages may not be sufficient and agrees that the Disclosing Party will be entitled to seek, in addition to its other rights and remedies hereunder or at law, injunctive or all other equitable relief, and such further relief as may be proper from a court of competent jurisdiction. This Article 6 shall survive the expiration or termination of this Agreement.
6.6 Disposition of Confidential Information on Termination or Expiration. Upon termination or expiration of this Agreement or upon the Disclosing Party’s written request, the Receiving Party will return to the Disclosing Party all copies of Confidential Information already in the Receiving Party’s possession or within its control. Alternatively, with Disclosing Party’s prior written consent, the Receiving Party may destroy such Confidential Information; provided that the Confidential Information is (i) destroyed in accordance with applicable law, rule or regulation and (ii) is rendered unreadable, undecipherable and otherwise incapable of reconstruction, in which case an officer of the Receiving Party will certify in writing to the Disclosing Party that all such Confidential Information has been so destroyed. The obligations with respect to Confidential Information, as set forth in this Article 6, shall continue in force and effect for a period of five (5) years after termination or expiration of this Agreement or, with respect to such portions of such Confidential Information that constitute trade secrets under applicable law, for so long as such trade secret status is maintained.
- Intellectual Property
Provider retains all rights, title, interest and ownership of, any and all IP and proprietary rights with respect to the Services, and any other materials provided or made available to Customer by Provider hereunder. “IP” means all intellectual property including without limitation all patents, inventions, trademarks, service marks, trade names and trade dress, copyrights and copyrightable works, trade secrets, know-how, design rights and database rights. All such Services and other materials that are provided or made available, and all work product that is developed, under this Agreement, all modifications, compilations, and derivative works thereof (whether or not developed based on Customer’s suggestions or other feedback), and all intellectual property and proprietary rights pertaining thereto, are and shall remain the property of Provider and its respective licensors (and to the extent any rights of ownership in any such materials, works, or rights might, for any reason, otherwise vest in Customer, Customer hereby assigns such ownership rights to Provider). Notwithstanding anything herein to the contrary, Provider may collect aggregated, anonymized data that cannot identify any person and that is derived from or created through the use of the Services by Customer and/or its Users and Provider shall own all right, title and interest in all IP related thereto. Provider confirms that it has all the rights necessary to provide the Services described herein and has the ability to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
- Warranties & Limitation of Liability
8.1 Provider Warranty. Provider represents and warrants that (i) the Services will perform substantially in accordance with the terms set forth herein, (ii) it will, at all times, comply with all applicable local, state, federal and foreign laws in providing the Services, and (iii) it has taken all action necessary for the approval and execution of this Agreement. The warranty set forth in this Section 8.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Provider’s instructions, or modification or alteration of the Services by any party other than Provider and/or authorized by Provider in writing.
8.2 Customer Warranty. Customer represents and warrants that (i) it will, at all times, comply with all applicable local, state, federal, and foreign laws in using the Service(s) and (ii) it has the requisite legal and corporate power, right, and authority to enter into this Agreement.
8.3 Remedy. Customer’s sole and exclusive remedy and Provider’s sole and exclusive liability for any breach of Provider’s warranties set forth herein is for Provider to use commercially reasonable efforts to correct any non-conformance within a reasonable period of time or provide Customer with an alternative means of accomplishing the desired performance; provided that Customer notifies Provider of such breach in writing within thirty (30) days after the date of Provider’s alleged breach.
8.4 DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8.1 OF THIS AGREEMENT, PROVIDER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE. THE SERVICES AND MATERIALS ARE PROVIDED BY PROVIDER ON AN “AS-IS” BASIS. PROVIDER DOES NOT REPRESENT, WARRANT OR COVENANT THAT THE SERVICES AND MATERIALS (INCLUDING, BUT NOT LIMITED TO, ANY DOCUMENTATION, REPORTS, ADVICE AND RECOMMENDATIONS, IN ANY FORM) PROVIDED BY PROVIDER IN CONNECTION WITH THIS AGREEMENT, ARE OR WILL NECESSARILY ALWAYS BE COMPLETELY ACCURATE, CURRENT, COMPLETE AND/OR CONTINUOUSLY AVAILABLE. PROVIDER DOES NOT REPRESENT, WARRANT OR COVENANT THAT THE SERVICES AND MATERIALS WILL BE AVAILABLE WITHOUT INTERRUPTION OR TOTALLY ERROR-FREE, OR THAT ALL DEFECTS (INCLUDING, BUT NOT LIMITED TO, MINOR OR COSMETIC DEFECTS THAT DO NOT SIGNIFICANTLY AND ADVERSELY AFFECT FUNCTIONALITY OR FEATURES) WILL BE CORRECTED. PROVIDER IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER LOSS OR DAMAGE RESULTING FROM (A) TRANSFER OF DATA OVER COMMUNICATION NETWORKS SUCH AS THE INTERNET AND/OR (B) INABILITY TO ACCESS OR GET ACCURATE DATA FROM THIRD-PARTY SYSTEMS AND/OR APPLICATIONS THAT THE SERVICES ARE DEPENDENT ON.
8.5 Limitation of Liability. PROVIDER’S TOTAL AND CUMULATIVE LIABILITY FOR DIRECT DAMAGES ARISING OUT OF AND/OR IN CONNECTION WITH THIS AGREEMENT AND ANY ORDER FORMS SHALL IN NO EVENT EXCEED THE FEES PAID BY CUSTOMER TO PROVIDER FOR THE SERVICES PROVIDED UNDER THE APPLICABLE ORDER FORM THAT GAVE RISE TO THE LIABILITY DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF SUCH CLAIM. NOTWITHSTANDING THE FOREGOING SENTENCE, IN NO EVENT WILL PROVIDER BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, DATA AND BUSINESS) EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS SET FORTH HEREIN SHALL APPLY DESPITE ANY NEGLIGENCE, MISCONDUCT, ERRORS AND/OR OMISSIONS BY PROVIDER, ITS EMPLOYEES, REPRESENTATIVES AND/OR AGENTS. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION AND/OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, PROVIDER’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
All notices and other communications given or made pursuant to this Agreement must be in writing and sent to the address in the first paragraph of this Agreement. Such notices shall be sent to the attention of the person that signed the Agreement, below, or other person(s) further designated herein. All notices shall be effective upon receipt. A copy of such notices shall be sent to the Parties via email: if to Provider at email@example.com; if to Customer at ____________________.
This Agreement may be assigned by Provider at any time and for any reason. This Agreement shall not be assigned, delegated or transferred by Customer without prior written consent from Provider. This Agreement will be binding upon the Parties and their respective legal successors and permitted assigns.
- Governing Law
This Agreement will be governed by, and construed in accordance with, the internal laws of the State of Delaware, without regard to its choice of laws principles. Any action related to or arising from this Agreement shall take place exclusively in the courts situated in Wilmington, Delaware and the Parties hereby submit to the venue of the courts situated therein.
Neither Party shall, without the prior written approval of the other Party, disclose the existence and/or any of the terms or conditions of this Agreement to any third party or issue any press release or make any other public announcement relating to this Agreement or the other Party. Notwithstanding the foregoing, Customer hereby grants Provider the right to use Customer’s name, trade name, trademark, logo, acronym or other designation to identify Customer as Provider’s customer in connection with brochures, advertising, promotional materials made available made available or otherwise published by Provider, without the Customer’s prior consent.
- Force Majeure Event
Notwithstanding any other provision of this Agreement, neither Party is liable for any failure to perform, or delay in performing, any particular obligations under this Agreement where the failure or delay arises from any cause or causes beyond its reasonable control, including without limitation fire, flood, earthquake, elements of nature, acts of God, acts of war, terrorism, riots, civil disorders or rebellions (“Force Majeure Event”). In the event of a Force Majeure Event, the Parties agree to meet and discuss how to resolve the issue. Either Party may terminate this Agreement by giving the other Party written notice if the other Party fails to perform those obligations for thirty (30) days due to such Force Majeure Event. This Section does not apply to Section 5.1, or any obligation to pay money, or any obligation that is unaffected by the Force Majeure Event.
- Resale Orders
14.1 Reseller. This Section 14 is applicable if the Services are purchased through a third-party reseller that is authorized by Provider (the “Reseller”). In such case, the Customer agrees that the terms of this Section 14 shall govern.
14.2 Order Form. Customer shall enter into a zero-dollar Order Form with Provider that incorporates, by reference, Provider’s Terms of Service located at https://www.securityjourney.com/terms-of-service or Provider’s Master Customer Agreement as signed by both the Customer and the Provider.
14.3 Payment and Breach. Notwithstanding anything else to the contrary in this Agreement, Customer shall pay the applicable amount agreed by and between the Reseller and Customer directly to the Reseller. In the event Provider does not receive payment when due from the Reseller, Provider may, at its sole option and discretion and without prior notice, suspend Customer’s right to access and use of the Services and, in such case, Customer acknowledges and agrees that Provider shall have no liability to Customer hereunder for breach of this Agreement.
14.4 Limitation. The amount paid by the Reseller to Provider for Customer’s access and use of the Services will be deemed the actual amount paid by Customer to the Reseller under this Agreement for the purposes of calculating the limitation of liability set forth in Section 8.5 herein.
14.5 No Contrary Terms. Resellers are not authorized to modify the terms of this Agreement or make any promises or commitments on Provider’s behalf. Except for the obligations specifically set forth in this Agreement, Provider is not bound to any obligations to Customer that may be set forth in an agreement with the Reseller.
Provider may modify these terms from time to time without prior notice by posting a revised version on its website. By continuing to use the Services after the Revision Date, the Customer agrees to be bound by such modified Terms of Service. Provider is an independent contractor and will determine the method, details and means of performing the Services. Nothing contained herein shall give or is intended to give any rights of any kind to any third persons. No waiver of any of the terms of this Agreement will be valid unless in writing and designated as such. Any forbearance or delay on the part of either Party in enforcing any of its rights under this Agreement will not be construed as a waiver of such right to enforce same for such occurrence or any other occurrence. If any one or more of the provisions of this Agreement are for any reason held to be invalid, illegal or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement will be unimpaired and will remain in full force and effect. This Agreement and any amendments thereto may be executed in any number of counterparts and may be executed manually, by facsimile, or executed electronically using electronic signature or by other electronic communication used by the Parties. This Agreement, to the extent signed and delivered by means of a facsimile machine or electronic mail, shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. The Parties agree that no certification authority or other third party verification is necessary to validate its electronic signature, and that the lack of such certification of third party verification will not in any way affect the enforceability of the Parties’ electronic signature or any resulting agreement between Provider and Customer. No modification of or amendment to this Agreement and/or any acknowledged Order Form shall be effective unless such modification or amendment is in writing and signed by both Parties hereto. Any prior agreements or representations, either written or oral, relating to the subject matter of this Agreement and/or any acknowledged Order Form are of no force or effect. The headings and titles of the paragraphs of this Agreement are for convenience only and are not intended to define, limit or construe the contents of the provisions contained herein. Any provision of this Agreement which, by its nature, would survive termination of this Agreement will survive any such termination of this Agreement. The recitals and any exhibits or appendices attached hereto prior to mutual execution of the Agreement are hereby incorporated into and made a part of this Agreement. Notwithstanding anything else to the contrary, this Agreement constitutes the complete agreement and understanding between the Parties with respect to the subject matter hereof, and supersedes any terms contained in Customer’s documents (including but not limited to Purchase Orders) unless separately signed by Provider.