Social SafeGuard, Inc. dba SafeGuard Cyber
“Affiliate” means any entity that a Party directly or indirectly controls (e.g. subsidiary) or is controlled by (e.g., parent) or with which it is under common control (e.g., sibling).
“API” means an application program (or programming) interface.
“Documentation” means SafeGuard Cyber’s end-user technical documentation included in the applicable Offering.
“Error” means a reproducible failure of a Product to perform in substantial conformity with its Documentation.
“Offering” means, collectively, the SafeGuard Cyber Platform, the SafeGuardMe mobile application, any other Product, Product-Related Services or Professional Services.
“Order” means any purchase order or other ordering document (including any SOW) accepted by SafeGuard Cyber or a reseller that identifies the following ordered by Customer: Offering, Offering quantity based on SafeGuard Cyber’s applicable licensing metrics, Professional Services, price and Subscription/Order Term.
“Party” means each of SafeGuard Cyber and Customer individually, who collectively are the “Parties.”
“Product” means SafeGuard Cyber’s cloud-based Software-as-a-Service (SaaS) Platform, the SafeGuardMe mobile application, and any other products ordered by Customer, as set forth in the relevant Order, SafeGuard Cyber Services Data, and any Documentation and updates thereto that may be made available to Customer by SafeGuard Cyber.
“Product-Related Services” means the customer and technical support services for Products provided by SafeGuard Cyber, training, and any other SafeGuard Cyber services provided or sold with Products. Product-Related Services do not include Professional Services.
“Professional Services” means any professional services performed by SafeGuard Cyber for Customer pursuant to an SOW or Order.
“Services” means, collectively, Product-Related Services and Professional Services.
“SafeGuard Cyber Competitor” means a person or entity in the business of developing, distributing or commercializing products or services substantially similar to, or competitive with, SafeGuard Cyber’s Products or Services.
“SafeGuard Cyber Services Data” has the meaning set forth in Section 3 of the SafeGuard Cyber Privacy Notice.
“Statement of Work” or “SOW” means a mutually agreed, written document, executed by both Parties, describing the Services to be performed by SafeGuard Cyber for a Customer, deliverables, fees, and expenses related thereto.
“Subscription/Order Term” means the period of time set forth in the applicable Order during which Customer is authorized by SafeGuard Cyber to access and use SafeGuard Cyber’s Offerings.
ACCESS AND USE RIGHTS; RESPONSIBILITIES; RESTRICTIONS
2.1. Evaluation. If SafeGuard Cyber approves Customer’s evaluation use of a SafeGuard Cyber Product (“Evaluation Product”), the terms herein applicable to Products also apply to evaluation access and use of such Evaluation Product, except for the following different or additional terms: (i) the duration of the evaluation is as mutually agreed upon by you and SafeGuard Cyber, provided that either SafeGuard Cyber or you can terminate the evaluation at any time upon written (including email) notice to the other Party; (ii) the Evaluation Product is provided “AS-IS” without warranty of any kind, and SafeGuard Cyber disclaims all warranties, support obligations, and other liabilities and obligations for the Evaluation Product; and (iii) Customer’s access and use is limited to Internal Use by Customer employees only.
2.2. Customer Access and Use Rights. Subject to the terms and conditions of this Agreement (including SafeGuard Cyber’s receipt of applicable fees), SafeGuard Cyber grants Customer, under SafeGuard Cyber’s intellectual property rights in and to the applicable Product, a non-exclusive, non-transferable (except as expressly provided in Section 13.2, Assignment), non-sublicensable license to access and use the SafeGuard Cyber Products in accordance with any applicable Documentation solely for Customer’s Internal Use during the applicable Subscription/Order Term. Customer’s access and use is limited to the quantity of licenses and Product capabilities stated in the applicable Order.
2.3. Customer Responsibilities. Customer acknowledges and agrees that: (i) Customer is required to procure and maintain high-speed Internet service in order to access and use SafeGuard Cyber’s Products; (ii) Customer is responsible for providing accurate, current and complete contact information - including Customer’s legal business name, physical address, email address and phone number - and for promptly updating that information in the event of any change; (iii) Customer is responsible for maintaining the security of any Product account access and login credentials provided to it by SafeGuard Cyber; (iv) Customer shall be responsible for all activities undertaken by Customer’s employees, contractors or Affiliates in connection with their use of SafeGuard Cyber’s Offerings, as well as for any failure to comply with any relevant law or regulation in connection with their use of SafeGuard Cyber’s Offerings.
2.4. Restrictions. The access and use rights set forth in Section 2.2 (Customer Access and Use Rights) do not include any rights to, and Customer will not, with respect to any Offering (or any portion thereof): (i) employ or authorize a SafeGuard Cyber Competitor to use or view the Offering or Documentation, or to provide management, hosting, or support for an Offering; (ii) alter, publicly display, translate, create derivative works of or otherwise modify an Offering; (iii) sublicense, distribute or otherwise transfer an Offering to any third party (except as expressly provided in Section 13.2, Assignment); (iv) allow third parties to access or use an Offering; (v) create public Internet “links” to an Offering or “frame” or “mirror” any Offering content on any other server or wireless or Internet-based device; (vi) reverse engineer, decompile, disassemble or otherwise attempt to derive the source code (if any) for an Offering, circumvent its functions, or attempt to gain unauthorized access to an Offering or its related systems or networks; (vii) use an Offering to circumvent the security of another Party’s network/information, or conduct unauthorized surreptitious surveillance, data modification, data exfiltration, data ransom or data destruction; (viii) remove or alter any notice of proprietary right appearing on an Offering; (ix) conduct any stress tests, competitive benchmarking or analysis on, or publish any performance data of an Offering (provided, that this does not prevent Customer from comparing SafeGuard Cyber’s Offerings to other Products or Services for Customer’s Internal Use); (x) use any feature of SafeGuard Cyber APIs for any purpose other than in the performance of, and in accordance with, this Agreement; or (xi) cause, encourage or assist any third party to do any of the foregoing. Customer agrees to use SafeGuard Cyber’s Offerings in accordance with laws, rules and regulations directly applicable to Customer and acknowledges that Customer is solely responsible for determining whether a particular use of an Offering is compliant with such laws.
2.5. Installation and User Accounts. SafeGuard Cyber will provide the following Product set-up support at the beginning of Customer’s Subscription/Order Term: (i) introduce Product modules and framework, verify Customer’s requirements to ensure implementation; (ii) set up Customer user accounts and configurations as per the applicable Order or SOW; and (iii) train Customer’s designated users to monitor events and manage Product access. If utilizing the SafeGuard Cyber API, SafeGuard Cyber will provide the keys necessary to connect and invoke this API. SafeGuard Cyber will additionally provide assistance for technical issues related to the connection and invocation of this API. SafeGuard Cyber will notify Customers of periodic Product updates and enhancements.
2.6. Malware Detection. If SafeGuard Cyber detects or discovers a verified malicious file, malicious computer code or malicious link (collectively, “Malware”) affecting a Customer during your use of a SafeGuard Cyber Offering, then SafeGuard Cyber will notify you of the existence of the Malware, along with relevant, available metadata, as appropriate. SafeGuard Cyber shall have the right to review, assess, test, and otherwise analyze any Malware covered by this Section, and the results thereof shall be deemed SafeGuard Cyber Materials (as defined in Section 3.2 of this Agreement). Customer acknowledges and agrees that Customer should not download or access any Malware on or through its own systems and networks and that doing so can infect and damage Customer’s systems, networks and data. SafeGuard Cyber will not be responsible for any loss or damage caused by any Malware that may infect a Customer’s computer equipment, computer systems or networks, computer programs, data or other proprietary material or information due to the actions of Customer’s employees, contractors of Affiliates.
2.7. Third Party Services. SafeGuard Cyber’s Offerings may allow Customer to interface with a variety of third party software or services accessed separately by Customer (e.g., Facebook, Twitter, LinkedIn, WhatsApp, Slack, etc.). No endorsement of any such service should be inferred as a result of any SafeGuard Cyber Product integration with a third party service and SafeGuard Cyber is not responsible for the data, operation or functionality of such third party services. While SafeGuard Cyber may, in its sole discretion, customize its Products to interoperate with various third party services: Customer is responsible for complying with the terms and policies of each such third party service, including, without limitation, any payment obligations related thereto; and SafeGuard Cyber cannot guarantee that such third party services will continue to interoperate with SafeGuard Cyber Products.
2.8. Third Party Software. SafeGuard Cyber uses certain third party software in its Offerings, including what is commonly referred to as open source software. Under some third party software licenses, SafeGuard Cyber is required to provide Customer notice of the license terms and attribution to the third party. Upon Customer’s written request, SafeGuard Cyber will provide you with licensing terms and attribution information for any third party software related to your use of the Offerings.
2.9. SafeGuard Cyber Intellectual Property Rights and Customer Feedback. SafeGuard Cyber Products and Product-Related Services are made available for use or licensed, but not sold, to Customer. SafeGuard Cyber owns and retains all right, title and interest (including all intellectual property rights) in and to its Products and Product-Related Services. Any feedback or suggestions that Customer provides to SafeGuard Cyber regarding its Offerings is non-confidential and may be used by SafeGuard Cyber for any purpose without acknowledgement or compensation; provided, Customer will not be identified publicly as the source of the feedback or suggestion.
2.10. Modifications to SafeGuard Cyber Offerings. SafeGuard Cyber may make modifications to its Offerings from time to time and will use commercially reasonable efforts to notify Customer of any material modification. SafeGuard Cyber reserves the right to discontinue Offerings at any time; provided, however, that in the event SafeGuard Cyber elects to discontinue an Offering prior to the end of Customer’s Initial Term or any Renewal Term, SafeGuard Cyber will refund to Customer a pro rata share of any prepaid subscription fees for the remaining portion of the Initial or Renewal Term.
3.1. Fees. Professional Services will commence on a mutually agreed upon date. Estimates provided for Professional Services performed on a time-and-material basis are estimates only and not a guaranteed time and cost of completion. Professional Services performed on a fixed fee basis are limited to the scope of services stated in the applicable Order.
3.2. Ownership of Deliverables. Professional Services do not constitute “works for hire,” “works made in the course of duty,” or similar terms under laws where the transfer of intellectual property occurs on the performance of services to a payor. The only Deliverable arising from the Professional Services is a report consisting primarily of SafeGuard Cyber’s findings, recommendations and information compiled for purposes of the report. You own the copy of the report (including without limitation any Customer Confidential Information contained in the report) delivered to you (“Deliverable”), subject to SafeGuard Cyber’s ownership of the SafeGuard Cyber Materials. Customer agrees that SafeGuard Cyber exclusively owns any and all software (including object and source code), flow charts, algorithms, documentation, report templates, know-how, inventions, techniques, models, SafeGuard Cyber trademarks and patents, ideas, and any and all other works and materials developed by SafeGuard Cyber in connection with performing the Professional Services (including without limitation all intellectual property rights therein and thereto) (collectively the “SafeGuard Cyber Materials”) and that title shall remain with SafeGuard Cyber. For the avoidance of doubt, the SafeGuard Cyber Materials do not include any Customer Confidential Information or other Customer provided materials or data. Upon payment in full of the amounts due hereunder for the applicable Professional Services, and to the extent that SafeGuard Cyber Materials are incorporated into the Deliverable(s), you shall have a perpetual, non-transferrable (except as expressly provided in Section 13.2, Assignment), non-exclusive license to use the SafeGuard Cyber Materials solely as a part of the Deliverable(s) for your Internal Use.
AFFILIATES; ORDERS; PAYMENT OF FEES AND TAXES
4.2. Orders. Only those transaction-specific terms stating the Offerings ordered, quantity of licenses, price, payment terms, Subscription/Order Term, and billing/provisioning contact information (and for the avoidance of doubt, specifically excluding any pre-printed terms on a Customer or reseller purchase order) will have any force or effect unless a particular Order Form is executed by an authorized signing official of SafeGuard Cyber and returned to Customer (or the applicable reseller). If any such Order Form is so executed and delivered, then only those specific terms on the face of such Order Form that expressly identify those portions of this Agreement that are to be superseded will prevail over any conflicting terms herein, but only with respect to those Services or Offerings ordered on such Order Form. Orders are non-cancellable. Any Order through a reseller is subject to, and SafeGuard Cyber’s obligations and liabilities to Customer in connection with that Order are governed by, this Agreement.
4.3. Payment of Fees and Taxes. Customer will pay the Fees for Offerings to SafeGuard Cyber or its designated reseller as set forth in the applicable Order. SafeGuard Cyber Products are provided to Customer on an annual subscription basis, with Fees payable in advance. If Customer’s use of a SafeGuard Cyber Product exceeds the limitations set forth in the applicable Order, Customer shall be billed for the excess usage in accordance with SafeGuard Cyber’s then current rates, and Customer agrees to pay the additional Fees in the manner provided herein. Unless otherwise expressly set forth on the Order, Customer will pay the Fees and amounts stated on each Order within thirty (30) days after receipt of the applicable invoice. Except as explicitly set forth herein, all Fees are nonrefundable. SafeGuard Cyber reserves the right to change the Fees and institute new Fees at any time upon notice to Customer, with such updated Fees to apply to any renewal by Customer. In the event that SafeGuard Cyber or its designated reseller is required to pay any withholding tax to any governmental entity in Customer’s jurisdiction in connection with the provision of the Service to Customer, then such withholding tax shall be billed to Customer in addition to the annual Fees, such that the net payment received by SafeGuard Cyber or its designated reseller after the dedication of such withholding tax remains the same as if no withholding tax was applicable. Any such invoice shall be due and payable no later than thirty (30) days after receipt of the applicable invoice.
TERM; TERMINATION; SUSPENSION
Customer’s Subscription/Order Term will commence on the effective date of the Agreement or Order Form (as the case may be), and shall continue for a period of one (1) year thereafter (the “Initial Term”). Subject to earlier termination as provided below, following the Initial Term, Customer’s subscription will automatically renew for additional one (1) year periods (each a “Renewal Term” and together with the Initial Term comprising the “Term”), unless either Party requests termination in writing at least thirty (30) days prior to the end of the then-current Term.
Upon termination of this Agreement for any reason: (a) all access and use rights granted to Customer pursuant to this Agreement will terminate; (b) Customer must promptly cease all use of any SafeGuard Cyber Offering; and (c) SafeGuard Cyber will, consistent with this Agreement and the SafeGuard Cyber Privacy Notice, delete any archived data associated with Customer’s account after the effective termination date. If Customer wants to receive a copy of its archived data, then it shall provide SafeGuard Cyber with a written request for the data at least thirty (30) days prior to the effective termination date. Sections 1 (Definitions), 2 (Access and Use Rights; Responsibilities; Restrictions), 3 (Professional Services), 5 (Term; Termination; Suspension), 7 (Confidentiality), 10 (Limitation of Liability), 12 (U.S. Government Customers), and 13 (General), and all liabilities that accrue prior to termination shall survive the expiration or termination of this Agreement for any reason.
DATA SECURITY AND PRIVACY.
6.1. Data Security. SafeGuard Cyber delivers industry-leading, scalable, cloud-based SaaS Products and Offerings with high security, availability and dependability, built on System and Organizational Controls (SOC) II compliant Amazon Web Services infrastructure, and powered by advanced Machine Learning.
6.2. SafeGuard Cyber Platform and SafeGuard Me. The SafeGuard Cyber Platform provides Customers with the ability to securely enable channels (including social media, enterprise applications, collaboration networks and mobile apps) to protect their organizations and people from a wide range of digital risks, in a compliant and scalable manner. The SafeGuardMe mobile application extends digital risk protection to personal social media accounts.
6.3. SafeGuard Cyber Privacy Notice. SafeGuard Cyber’s Privacy policies are detailed in the SafeGuard Cyber Privacy Notice
7.1. Definitions. In connection with this Agreement, the term “Receiving Party” means a Party receiving “Confidential Information” from the other Party, and the term “Disclosing Party” means a Party providing “Confidential Information” to the other Party. The term “Confidential Information” means non-public information in any form that is in the Receiving Party’s possession - regardless of the method of acquisition - that the Disclosing Party designates as confidential or that should be reasonably known by the Receiving Party to be confidential due to the nature of the information disclosed and/or the circumstances surrounding the disclosure. Confidential Information shall not include information that is: (i) in or becomes part of the public domain (other than by disclosure by the Receiving Party in violation of this Agreement), (ii) previously known to the Receiving Party without an obligation of confidentiality that is demonstrable by the Receiving Party, (iii) independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information, or (iv) rightfully obtained by the Receiving Party from a third party without an obligation of confidentiality.
7.2. Restrictions on Use. Except as allowed in Section 7.3 (Exceptions), the Receiving Party shall hold the Disclosing Party’s Confidential Information in strict confidence and shall not disclose any such Confidential Information to any third party, other than to its employees and contractors (including without limitation counsel, accountants and financial advisors, collectively, “Representatives”), its Affiliates and their Representatives, subject to the terms of this Agreement, and in each case where there is a need to know the Confidential Information and the Representatives receiving it are bound by restrictions regarding disclosure and use of such Confidential Information that are comparable to, and no less restrictive than, those set forth in this Agreement. The Receiving Party shall not use the Disclosing Party’s Confidential Information for any purpose other than as set forth in this Agreement. The Receiving Party shall take the same degree of care that it uses to protect its own Confidential Information of similar nature and importance (but in no event less than reasonable care) to protect the confidentiality and avoid the unauthorized use, disclosure, publication or dissemination of the Disclosing Party’s Confidential Information. The Receiving Party shall immediately notify the Disclosing Party upon discovery of any unauthorized use, disclosure, publication, or dissemination of the Disclosing Party’s Confidential Information.
7.3. Exceptions. The Receiving Party may disclose the Disclosing Party’s Confidential Information: (i) to the extent required by applicable law or regulation; (ii) pursuant to a subpoena or order of a court or regulatory, self-regulatory, or legislative body of competent jurisdiction; (iii) in connection with any regulatory report, audit, or inquiry; or (iv) where requested by a regulator with jurisdiction over the Receiving Party. In the event of such a requirement or request, the Receiving Party shall, to the extent legally permitted: (a) give the Disclosing Party prompt written notice of such requirement or request prior to such disclosure; and (b) at the Disclosing Party’s cost, a reasonable opportunity to review and comment upon the disclosure and request confidential treatment or a protective order pertaining thereto prior to the Receiving Party making such disclosure. If the Receiving Party is legally required to disclose the Disclosing Party’s Confidential Information as part of: (x) a legal proceeding to which the Disclosing Party is a party but the Receiving Party is not; or (y) a government or regulatory investigation of the Disclosing Party, the Disclosing Party shall pay all of the Receiving Party’s reasonable and actual out of pocket legal fees and expenses (as evidenced by reasonably detailed invoices) and will reimburse the Receiving Party for its reasonable costs and fees of compelling and providing such Confidential Information, including a reasonable hourly rate for time spent preparing for, and participating in, depositions and other testimony.
7.4. Destruction. Upon the Disclosing Party’s written request, the Receiving Party shall use commercially reasonable efforts to destroy the Confidential Information and any copies or extracts thereof. However, the Receiving Party, its Affiliates and their Representatives may retain any Confidential Information that: (i) they are are required to keep for compliance purposes under a document retention policy or as required by applicable law, professional standards, a court or a regulatory agency; or (ii) have been created electronically pursuant to automatic or ordinary course of business archiving, back-up, security, or disaster recovery systems or procedures; provided, however, that any such retained information shall remain subject to this Agreement. Upon the Disclosing Party’s request, the Receiving Party will provide the Disclosing Party with written confirmation of destruction in compliance with this section.
7.5. Equitable Relief. Each Party to this Agreement acknowledges that a breach of this Section shall cause the other party irreparable injury and damage. Therefore, each party agrees that those breaches may be stopped through injunctive proceedings in addition to any other rights and remedies which may be available to the injured party at law or in equity without the posting of a bond.
WARRANTIES & DISCLAIMER
8.1. Product and Services Warranties. If Customer has purchased a subscription or license(s) for a SafeGuard Cyber Product or Service, SafeGuard Cyber warrants to Customer during the applicable Subscription/Order Term that the SafeGuard Cyber Product or Service will perform substantially in accordance with the Documentation provided to Customer. SafeGuard Cyber shall use reasonable efforts consistent with prevailing industry standards to maintain its Offerings in a manner which minimizes errors and interruptions in service. A SafeGuard Cyber Offering may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by SafeGuard Cyber or by third-party providers, or because of other causes beyond the reasonable control of SafeGuard Cyber. SafeGuard Cyber warrants that it will provide all Offerings in a professional and competent manner consistent with generally accepted industry standards. Customer must notify SafeGuard Cyber of any warranty claim during the Subscription/Order Term. Customer’s sole and exclusive remedy, and SafeGuard Cyber’s entire liability for breach of these warranties, will be for SafeGuard Cyber, at its option and expense, to do at least one of the following: (a) use commercially reasonable efforts to provide a work-around or correct the issue(s) leading to Customer’s breach of warranty claim; (b) use commercially reasonable efforts to re-perform or correct the non-conforming Product function(s) or Service(s); or (c) terminate Customer’s license or access to the affected Product function(s) or Service(s) and refund to Customer a pro rata share of any prepaid subscription fees for the terminated portion of the Subscription/Order Term.
8.2. No Warranty for Pre-Production Version of Offering. Any pre-production feature or version of a SafeGuard Cyber Offering provided to Customer is experimental and provided “AS IS” without warranty of any kind and will not create any obligation for SafeGuard Cyber to continue to develop, productize, support, repair, offer for sale, or in any other way continue to provide or develop any such Product feature or Service. Customer agrees that its subscription is not contingent upon the delivery of any future functionality or features, or dependent on any oral or written statements made by SafeGuard Cyber regarding future functionality or features.
8.3. Exclusions. The express warranties in this Agreement do not apply if the applicable Product capability or Service: (i) has been modified by Customer or any entity other than SafeGuard Cyber; or (ii) has not been configured, used or maintained in accordance with this Agreement or the applicable Documentation. If any part of a SafeGuard Cyber Product or Service references websites, hypertext links, network addresses, or third party locations, information, or activities, it is provided as a convenience only.
8.4. No Guarantee. CUSTOMER ACKNOWLEDGES, UNDERSTANDS, AND AGREES THAT SAFEGUARD CYBER DOES NOT GUARANTEE OR WARRANT THAT IT WILL FIND, DISCOVER OR MITIGATE ALL OF CUSTOMER’S OR ITS AFFILIATES’ DIGITAL, SECURITY OR COMPLIANCE RISKS, AND CUSTOMER AND ITS AFFILIATES WILL NOT HOLD SAFEGUARD CYBER RESPONSIBLE THEREFOR.
8.5. Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS SECTION, SAFEGUARD CYBER, ITS AFFILIATES AND RESELLERS DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, SAFEGUARD CYBER, ITS AFFILIATES, RESELLERS AND SUPPLIERS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT WITH RESPECT TO THE SAFEGUARD CYBER PRODUCTS, SERVICES AND OFFERINGS. THERE IS NO WARRANTY THAT THE SAFEGUARD CYBER PRODUCTS, SERVICES AND OFFERINGS WILL BE ERROR FREE, OR THAT THEY WILL OPERATE WITHOUT INTERRUPTION OR WILL FULFILL ANY OF CUSTOMER’S PARTICULAR PURPOSES OR NEEDS. THE SAFEGUARD CYBER PRODUCTS, SERVICES AND OFFERINGS ARE OFFERED “AS IS” AND SAFEGUARD CYBER EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT CUSTOMER’S USE WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS OR WILL ASSIST WITH, GUARANTEE OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS. THE SAFEGUARD CYBER PRODUCTS, SERVICES AND OFFERINGS ARE NOT FAULT-TOLERANT AND ARE NOT DESIGNED OR INTENDED FOR USE IN ANY HAZARDOUS ENVIRONMENT REQUIRING FAIL-SAFE PERFORMANCE OR OPERATION. SAFEGUARD CYBER DOES NOT WARRANTY ANY THIRD PARTY PRODUCTS OR SERVICES.
9.1. SafeGuard Cyber’s Obligations. SafeGuard Cyber shall at its own cost and expense: (i) defend and/or settle any claim brought against Customer by an unaffiliated third party alleging that a SafeGuard Cyber Product or a SafeGuard Cyber Service infringes or violates that third party’s intellectual property rights, and (ii) pay and indemnify any settlement of such claim or any damages awarded to such third party by a court of competent jurisdiction as a result of such claim; provided that Customer: (a) gives SafeGuard Cyber prompt written notice of such claim; (b) permits SafeGuard Cyber to solely control and direct the defense or settlement of such claim (however, SafeGuard Cyber will not settle any claim in a manner that requires Customer to admit liability without Customer’s prior written consent); and (c) provides SafeGuard Cyber all reasonable assistance in connection with the defense or settlement of such claim, at SafeGuard Cyber’s cost and expense. In addition, Customer may, at Customer’s own expense, participate in the defense of any claim.
9.2. Remedies. If a claim covered under this Section occurs, or in SafeGuard Cyber’s opinion is reasonably likely to occur, SafeGuard Cyber may at its expense and discretion (provided, however, if Customer’s access to and use of SafeGuard Cyber’s Product or Services is enjoined, SafeGuard Cyber will, at its expense): (i) procure the right to allow Customer to continue using the Product or Service; (ii) modify or replace the applicable Product function or Service to become non-infringing; or (iii) if neither (i) nor (ii) is commercially practicable, terminate Customer’s license or access to the affected Product function or Service and refund to Customer a pro rata share of any prepaid subscription fees for the Terminated portion of the Subscription/Order Term.
9.5. Indemnification Procedures and Survival. In the event of a potential indemnity obligation under this Section, the indemnified party shall: (a) promptly notify the indemnifying party in writing of such claim; (b) allow the indemnifying party to have sole control of its defense and settlement; and (c) upon request of the indemnifying party, cooperate in all reasonable respects, at the indemnifying party’s expense, with the indemnifying party in the investigation, trial and defense of such claim and any appeal arising therefrom. The indemnification obligations under this Section are expressly conditioned upon the indemnified party’s compliance with this Section, except that failure to notify the indemnifying party of such claim shall not relieve that party of its obligations under this Section, but such claim shall be reduced to the extent of any damages attributable to such failure. The indemnification obligations contained in this Section shall survive termination of Customer’s Subscription/Order Term for one year.
9.6. Exclusive Remedy. THE REMEDIES SPECIFIED IN THIS SECTION CONSTITUTE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES AND SAFEGUARD CYBER’S ENTIRE LIABILITY WITH RESPECT TO ANY INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW - EXCEPT FOR LIABILITY FOR ANY AMOUNTS PAID OR PAYABLE TO THIRD PARTIES UNDER SECTION 9 (INDEMNIFICATION) OF THIS AGREEMENT, CUSTOMER’S PAYMENT OBLIGATIONS, BREACH OF THE CONFIDENTIALITY PROVISIONS SET FORTH IN SECTION 7 (CONFIDENTIALITY) OF THIS AGREEMENT, AND/OR ANY INFRINGEMENT OR MISAPPROPRIATION BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS - NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY IN CONNECTION WITH THIS AGREEMENT OR THE SUBJECT MATTER HEREOF UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STATUTE, TORT OR OTHERWISE FOR ANY LOST PROFITS, REVENUE OR SAVINGS, LOST BUSINESS OPPORTUNITIES, LOST DATA, OR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES OR THEY WERE REASONABLY FORESEEABLE.
COMPLIANCE WITH LAWS
Each Party agrees to comply with all U.S. federal, state, local and non-U.S. laws directly applicable to such Party in the performance of this Agreement, including but not limited to, applicable export and import, anti-corruption and employment laws. Customer acknowledges and agrees the Offerings shall not be used, transferred, or otherwise exported or re-exported to countries or regions that the United States and/or the European Union maintains an embargo or comprehensive sanctions against (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity subject to individual prohibitions (e.g., parties listed on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders) (collectively, “Designated Nationals”), without first obtaining all required authorizations from the U.S. Government and any other applicable government. Customer represents and warrants that Customer is not located in, or under the control of, or a national or resident of, an Embargoed Country or Designated National. SafeGuard Cyber represents and warrants that SafeGuard Cyber is not located in, or under the control of, or a national or resident of, an Embargoed Country or Designated National.
U.S. GOVERNMENT CUSTOMERS
12.1. Commercial Items. This Section applies to all acquisitions by or for the U.S. Government, or by any U.S. Government prime contractor or subcontractor at any tier (“U.S. Government Users”), under any U.S. Government contract, grant, other transaction, or other funding agreement. The SafeGuard Cyber Offerings are “commercial items” as that term is defined in Federal Acquisition Regulation (“FAR”) (48 C.F.R.) 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in FAR 12.211 and 12.212. In addition, U.S. Department of Defense FAR Supplement (“DFARS”) 252.227-7015 (Technical Data - Commercial Items) applies to technical data acquired by U.S. Department of Defense agencies. Consistent with FAR 12.211 and 12.212 and DFARS (48 C.F.R.) 227.7202-1 through 227.7202-4, the SafeGuard Cyber Offerings are being licensed to Government Users pursuant to the terms of the license(s) customarily provided to the public as set forth in this Agreement, unless such terms are inconsistent with United States federal law (“Federal Law”).
12.2. Disputes with the U.S. Government. If this Agreement fails to meet the U.S. Government’s needs or is inconsistent in any way with Federal Law and the Parties cannot reach a mutual agreement on terms for this Agreement, the U.S. Government agrees to terminate its use of the SafeGuard Cyber Offerings. In the event of any disputes with the U.S. Government in connection with this Agreement, Section 13.3 (Governing Law: Venue) shall not apply. Instead, the rights and duties of the Parties arising from this Agreement shall be governed by, construed, and enforced in accordance with Federal Procurement Law and any such disputes shall be resolved pursuant to the Contract Disputes Act of 1978, as amended (41 U.S.C. Sections 7101-7109), as implemented by the Disputes Clause, FAR 52.233-1.
12.3. Precedence. The U.S. Government rights in this Section are in lieu of and supersede any other FAR, DFARs, or other clause, provision, or supplemental regulation that addresses U.S. Government rights in the Offerings under this Agreement.
13.1. Entire Agreement. This Agreement constitutes the entire agreement between Customer and SafeGuard Cyber concerning the subject matter of this Agreement and it supersedes all prior and simultaneous proposals, agreements, understandings, or other communications between the Parties, oral or written, regarding such subject matter. It is expressly agreed that the terms of this Agreement shall supersede any terms in any reseller order form or other similar non-SafeGuard Cyber document, and no such terms included in any non-SafeGuard Cyber document shall apply to the Offerings ordered. Any Order through a reseller is subject to, and SafeGuard Cyber’s obligations and liabilities to Customer are governed by, this Agreement. SafeGuard Cyber is not obligated under any reseller’s agreement with you unless a duly authorized officer of SafeGuard Cyber executes the agreement. This Agreement shall not be construed for or against any Party to this Agreement because that Party or that Party’s legal representative drafted any of its provisions.
13.2. Assignment. Neither Party may assign this Agreement without the prior written consent of the other Party, except to an Affiliate in connection with a corporate reorganization or in connection with a merger, acquisition or sale of substantially all of its business and/or assets. Any assignment in violation of this Section shall be void. Subject to the foregoing, all rights and obligations of the Parties under this Agreement shall be binding upon and inure to the benefit of and be enforceable by and against the successors and permitted assigns.
13.3. Governing Law: Venue. Except as otherwise provided, this Agreement, and the rights and duties of the Parties arising from this Agreement, shall be governed by, construed, and enforced in accordance with the laws of the Commonwealth of Virginia. The sole and exclusive jurisdiction and venue for actions arising under this Agreement shall be state and federal courts in Charlottesville, Virginia, and the Parties agree to service of process in accordance with the rules of such courts. The Uniform Computer Information Transactions Act and the United Nations Convention on the International Sale of Goods shall not apply. Notwithstanding the foregoing, each Party reserves the right to file a suit or action in any court of competent jurisdiction as such Party deems necessary to protect its intellectual property rights and, in SafeGuard Cyber’s case, to recoup any payments due.
13.4. Permission to Identify You as a Customer. Unless you direct otherwise (at any time) by sending written notice to us at firstname.lastname@example.org, you agree that SafeGuard Cyber may identify you as a customer and display your company name and logo (in accordance with any trademark guidelines you provide) in a manner that does not suggest your use or endorsement of any specific SafeGuard Cyber Offering.
13.5. Independent Contractors: No Third Party Rights. The Parties are independent contractors. This Agreement shall not establish any relationship of partnership, joint venture, employment, franchise, or agency between Customer and SafeGuard Cyber. No provision in this Agreement is intended or shall create any rights with respect to the subject matter of this Agreement in any third party.
13.6. Waiver, Severability and Amendment of Agreement. The failure of either Party to enforce any provision of this Agreement shall not constitute a waiver of any other provision or any subsequent breach. If any provision of this Agreement is held to be illegal, invalid or unenforceable, the provision will be enforced to the maximum extent permissible so as to achieve the intent of the Parties, and the remaining provisions of this Agreement will remain in full force and effect. This Agreement may only be amended, or any term or condition set forth herein waived, by written consent of both SafeGuard Cyber and Customer.
13.7. Force Majeure. Neither Party shall be liable for, nor shall either party be considered in breach of this Agreement due to, any failure to perform its obligations under this Agreement (other than its payment obligations) as a result of a cause beyond its control, including but not limited to: an act of God or a public enemy, an act of any military, civil or regulatory authority, a change in any law or regulation, fire, flood, earthquake, storm or other like event, disruption or outage of communications (including an upstream server block and Internet or other networked environment disruption or outage), power or other utility, labor problem, or any other cause, whether similar or dissimilar to any of the foregoing, which could not have been prevented with reasonable care. The Party experiencing a force majeure event shall use commercially reasonable efforts to provide notice of such to the other Party.
13.8. Notices. All legal notices will be given in writing to the addresses in the Order and will be effective: (i) when personally delivered, (ii) on the reported delivery date if sent by a recognized international or overnight courier, or (iii) five business days after being sent by registered or certified mail (or ten days for international mail). For clarity, Orders, purchase orders, confirmations, invoices and other documents related to processing and payment are not legal notices and may be delivered electronically in accordance with each Party’s standard ordering procedures.