JUPITERONE PLATFORM SERVICES TERMS AND CONDITIONS
JupiterOne, Inc. (“we”, “us”, “our” or “JupiterOne”) offers to our customers access to (1) certain cybersecurity operations software or digital services that provides a web-based interface, notification system, and/or a set of application programming interfaces (APIs) to manage and monitor the security configuration and events in our customers’ live IT environments (“Software”), (2) certain template documentation used to generate security policy documents in connection with information security compliance and certifications as well as certain other toolkits and utilities available on an open source basis via https://github.com/jupiterone (“Materials”), and (3) certain advisory and professional services, in each case subject to the terms and conditions of this Agreement (this “Agreement”).
1. Agreement. By executing an Order Form that references this Agreement with JupiterOne or by subscribing to our software services online, the Company identified on the Order Form or online registration form (“you”, “your”, or “Company”) accepts the terms of this Agreement. The Agreement means, collectively, these Terms and Conditions, your Order Form or online registration form, and any attachments executed by the parties referencing this Agreement. You should read this Agreement carefully for the terms and conditions that govern our arrangement. You and the individual executing the Order Form on your behalf each represent and warrant to us that such individual is authorized to agree to bind the Company to the terms of this Agreement.
2. Subscription to Software.
a. Services. During the Term, we will use commercially reasonable efforts to provide to the Company and those of its employees, contractors and agents that have been granted valid access credentials for the Software (collectively, “Authorized Users”) the following services (collectively with the Documentation and Materials, the “Services”): (i) the hosting, management and operation of the Software for remote electronic access and use by you and your Authorized Users; (ii) the Support Services described in Section 4; (iii) the Advisory and Professional Services described in Section 5, as applicable; and (iii) any other services we agree to provide in your Order Form.
b. Authorization. So long as the Company and its Authorized Users comply with this Agreement, we hereby authorize the Company to access and use, during the Term, the Services and the Software (including any related Third-Party Materials) for the Company’s own internal business purposes (the “Permitted Use”), by and through its Authorized Users, in accordance with the documentation we provide with the Services (the “Documentation”). This authorization is non-exclusive and non-transferable (except as described in Section 15(f)).
c. Limitations and Restrictions. Company shall not, and shall not permit any other person or entity, to access or use the Services or the Software except as specifically allowed in this Agreement and, in the case of any related third-party materials (including open source components) we provide hereunder (“Third-Party Materials”), as allowed in the applicable third-party license agreement. Company and its Authorized Users will not, directly or indirectly:
i. copy, modify or create derivative works or improvements of the Services, Software, or any Deliverables;
ii. make the Software or Services available (e.g., sublicense, distribute or transfer) to any other person or entity, including through any time-sharing, service bureau or software as a service arrangement;
iii. reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services or any Software, Documentation or data related to the Services;
iv. input, upload, transmit or otherwise provide to or through the Software or Services any information or materials that are unlawful or injurious, or contain, transmit or activate any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (A) computer, software, firmware, hardware, system or network or (B) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data processed thereby;
v. damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner our Software or Services or our ability to provide services to any third party;
vi. access or use the Software or Services in any way that infringes, misappropriates or otherwise violates any intellectual property right, privacy right or other right of any third party, or that violates any applicable law or regulation; or
vii. access or use the Software, the Services or Deliverables for purposes of benchmarking or competitive analysis, developing, producing, marketing, distributing, licensing or selling any product or service that may compete with the Services or Deliverables, or disclosing to our competitors, for any purpose, otherwise non-public information about the Services or Deliverables.
d. Service Level Commitment. We will use commercially reasonable efforts to keep the Software available and operating in accordance with its Documentation at least 99.5% of the time (measured on a month-by-month basis), except for unavailability due to any Scheduled Downtime or Exceptions. “Scheduled Downtime” means pre-scheduled downtime for routine maintenance between 10:00 p.m. and 6:00 a.m. Eastern time where we’ve given you at least 48 hours prior notice of such downtime. “Exceptions” means any downtime or failure of the Software due, in whole or in part, to any (i) access or use of the Software not in accordance with this Agreement or the Documentation, (ii) your or your Authorized User’s internet connectivity issues, (iii) Force Majeure Event, (iv) failure, interruption, outage or other problem with any software, hardware, system, network, or other technology infrastructure that is not ours, or (iv) suspension of your access to the Software or Services as described in Section 6.c below. If we fail to meet the availability commitment described above, we will credit you 10% of your Monthly Fee for the month when the failure occurred. If you are unhappy with the service availability, you may also exercise your right to cancel or not to renew our contract as per Section 11.
e. Pilot/Beta/Trial Access. Any Software or Services that are made available to you on a “pre-release.” “beta” or “trial” basis are for testing and evaluation by you. Such Software and related Services may be provided through non-production environments, where the service level commitment set forth in Section 2.d above will not apply. We may discover errors, design flaws, inaccuracies or other problems (“Errors”) in such Software or Services that will need to be corrected, for which the Error correction process may take longer than normal. You agree that the existence of Errors in such Software or Services shall not be considered a breach or default under this Agreement. We will, at our sole cost and expense, use commercially reasonable efforts to correct such Errors within a period of time that is commercially reasonable under the circumstances, but should we conclude that correcting a particular Error or related set of Errors is not feasible within commercially reasonable standards, then we may terminate this Agreement immediately upon written notice to you. The limited warranties provided in Section 12(b) below shall not apply to any such Software or Services.
3. Accessing Materials. Materials made accessible to you through https://github.com/jupiterone are subject to the open source license terms and conditions specified in the documentation we provide with the Materials or in any “ReadMe” file or similar file provided with the Materials. ALL MATERIALS ARE PROVIDED “AS IS” WITHOUT SUPPORT, WARRANTY OR INDEMNITY OF ANY KIND, EXPRESS OR IMPLIED, AND OUR AGGREGATE LIABILITY IN CONNECTION WITH ANY MATERIALS SHALL NOT EXCEED $500 UNDER ANY CIRCUMSTANCES.
4. Support. Your subscription comes with our standard support (“Support Services”), which includes: (a) e-mail support (or other online support made available to our customers from time to time) to: (i) provide technical and operational assistance for the use of the Software and Deliverables, including assistance with initial configuration of the Software, and (ii) attempt to correct any reproducible failure of the Software to perform in accordance with its Documentation; and (b) case management to help track the status of any such failures reported to us. You must provide all information and assistance that we reasonably request in connection with providing such Support Services. To be sure, our Support Services do not include: (x) support for software or hardware that is not ours, (y) on-site training or assistance; or (z) performance of any professional, consulting or advisory services.
5. Advisory and Professional Services. Subject to the terms and conditions of this Agreement, we will perform the advisory and professional services that are mutually agreed upon and described in your Order Form (the “Advisory and Professional Services”), and we hereby grant you a license to access and use the results and proceeds of the Advisory and Professional Services (the “Deliverables”) on a non-exclusive, non-transferable (except as described in Section 15(f)), non-sublicenseable, fully paid-up, royalty-free and perpetual (except to the extent provided below in Section 11.c) basis solely to the extent necessary for the Company’s internal business purposes. You will: (i) not disclose or grant access to any Deliverable to any third party; (ii) employ commercially reasonable measures to safeguard each Deliverable from unauthorized access or use by any third party; (iii) not assign, transfer, lease, rent, lend, sell, sublicense, distribute, publish or otherwise make available any Deliverable, or any license granted under this Agreement, in whole or in part, to any third-party, including on a timesharing, software-as-a-service or other similar basis; (iv) not remove, obscure or alter any copyright, trademark, patent or proprietary notice affixed to the media or packaging of any Deliverable or displayed by or in any Deliverable; and (v) not access or use the Deliverables in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property right, privacy right or other right of any third party, or that violates any applicable law.
6. Additional Provisions: Software and Materials.
a. Changes. We may make any changes to the Materials or Software that we deem necessary or useful to improve the Materials or Software or for any other reason. If you do not agree with the changes we make to the Materials or Software or our Services, you may exercise your right to cancel or not to renew this Agreement as described below in Section 11 below.
b. Subcontractors. We may, in our discretion, engage subcontractors to perform Services under this Agreement, but we will remain responsible for any act or omission by such subcontractors that would be a breach or violation of this Agreement.
c. Suspension of Services, Authorization and License. We may suspend or deny your or any Authorized User’s access to or use of all or any part of the Materials, Software, Deliverables or our Services, without any liability to you or others, if (i) we’re required to do so by law or court order, (ii) you or any Authorized User have accessed or used the Materials, Software, Deliverables or our Services beyond the scope of the rights granted to you under this Agreement, (iii) you or any Authorized User are or have been involved in any fraudulent, misleading or unlawful activities relating to or in connection with the Materials, Software, Deliverables or our Services, (iv) you or any Authorized User have failed to comply with the limitations and restrictions described in Sections 2.c or 3, (v) you have failed to cooperate or otherwise comply with the further assurances required of you in Section 9.d, or (vi) you or any Authorized User have otherwise failed to comply with this Agreement and have failed to cure such breach within 10 days after we provide written notice to you. Our remedies in this Section are in addition to, and not in lieu of, our termination rights in Section 11.
7. Your Responsibilities. You agree to obtain and securely maintain any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, hardware, servers, software, operating systems, networking, web servers, APIs and the like (collectively, “Equipment”). You will cooperate with us in all matters relating to the performance of the Services, respond promptly to any of our requests for you to provide direction, information, data, approvals, authorizations or decisions that are reasonably necessary for us to provide the Materials and Software and to perform the Services in accordance with this Agreement. You are solely responsible for securing all rights, licenses or approvals necessary to permit the Software, Services or Deliverables to interoperate with and pass data back and forth with any third party software or other technology with which you intend to use the Software or Deliverables, and for any template documentation used to generate policy documents in connection with your use of the Services. You understand and acknowledge that our performance under this Agreement is conditioned on your timely and effective performance of the foregoing.
8. Confidentiality; Forums.
a. Confidentiality. During the Term and for a period of five years thereafter, each receiving party (each, a “Recipient”) will hold in strict confidence any proprietary or confidential information (collectively, “Confidential Information”) of the other party (the “Discloser”) and will not disclose Discloser’s Confidential Information to any third party nor use the Discloser’s Confidential Information for any purpose except for carrying out its obligations or exercising its rights under this Agreement. To be clear, the Materials, Software, Deliverables and our Services, all information related to the foregoing, and the terms and existence of this Agreement are all our Confidential Information, and Company Data is the Company’s Confidential Information. These restrictions will not restrict the use or disclosure of information disclosed by one party to the other that (i) is or becomes publicly known other than as a result of any act by the Recipient, (ii) is lawfully received by the Recipient from a third party not in a confidential relationship with the Discloser, (iii) was already rightfully known by the Recipient prior to receipt thereof from the Discloser, or (iv) after notice and an opportunity to object, is required by law to be disclosed. Notwithstanding the foregoing, each party’s confidentiality obligations will survive with respect to the other party’s Confidential Information that is a trade secret for so long as such Confidential Information continues to be a trade secret under applicable law.
b. Forums. The Services may contain online forums that allow users of the Services from different organizations to post and share content and information learned while using the Services. Participation in online forums is at your sole discretion and is not required. The information included in forums may not be protected as confidential. If you choose to participate in an online forum, we make no representations and bear no liability for the content or information contained therein. You are solely responsible for all data or other content loaded into or viewable under any online forum.
c. Reference. Company agrees to serve as a reference account for our prospective customers. Notwithstanding anything to the contrary in this Agreement, we may include your name, logo or trademarks in marketing materials, customer lists, or other public communications. As a reference account, you agree to participate in the following upon reasonable request by us and upon your prior written approval in each instance: (a) providing a corporate logo and quote from a decision-maker for use by us in marketing activities and on our website; (b) development of a case study or testimonial that may be published or used as marketing collateral; (c) at your discretion, be available for interviews to prospective investors, media or analysts; (d) at your discretion, be available for interviews to prospective customers.
9. Fees and Payment.
a. Fees. You will pay to us the fees and charges described in your Order Form (the “Fees”) in accordance with your Order Form and this Section. All Fees once paid are non-refundable.
b. Taxes. Our Fees do not include taxes and similar assessments. We will pass along to you the cost of all sales and excise (and other similar) taxes, duties and charges of any kind imposed by a governmental authority on amounts payable under this Agreement, other than taxes imposed on our income. If any such amounts are owed to a governmental authority, we will calculate the amount of the obligation and include this on your bill or invoice, and we will remit those amounts to the applicable authority.
c. Payment. You will make all payments in US dollars. You will, upon our request, establish and maintain valid and updated credit card information or a valid ACH auto debit account (in each case, the “Automatic Payment Method”). Upon establishment of an Automatic Payment Method, we may charge the Fees using that Automatic Payment Method. If instead we invoice you for the applicable Fees, invoiced amounts are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information and notifying us of any changes to that information. If you fail to make any payment when due and have failed to cure such failure within 10 days after we provide written notice to you then, in addition to all other remedies that may be available to us, we may suspend our performance under this Agreement as provided in Section 6.c above, without any liability to you or others.
d. Further Assurances. If at any time, through your usage of our Services or otherwise, you incur an aggregate balance owed to us of $5,000 or more, we reserve the right, in our reasonable discretion, to take any reasonable action to ensure and confirm your ability to pay, including, but not limited to, processing a D&B report, processing a credit report, requiring written validation that the individual who has executed this Agreement on your behalf was duly authorized, processing a nominal charge to your Automatic Payment Method for validation purposes, or requiring you to immediately deposit an amount equal to a commercially reasonable percentage of the balance owed. You will provide all reasonable cooperation and assistance we request in connection with our actions under this Section.
10. Intellectual Property Rights.
a. JupiterOne Proprietary Content and Materials. We (or the respective rights holders in any Third-Party Materials) own and retain all right, title and interest in and to (i) the Materials, Software, Deliverables and the Services, and all improvements, enhancements or modifications thereto; (ii) any software, applications, inventions or other technology developed in connection with the Services or related support we provide; and (iii) all intellectual property rights related to any of the foregoing. Except for the express license grants made in Sections 2.b and 3, 5 above, no other rights are granted and all rights are reserved to us.
b. Feedback. To the extent we develop corrections, enhancements, improvements, or derivative works relating to the Materials, Software, Deliverables or our Services based upon ideas or suggestions submitted by you to us, you hereby irrevocably assign your rights to such ideas or suggestions or joint contributions to us, together with all intellectual property rights in or relating thereto.
c. Company Data. As between you and us, you are and will remain the sole and exclusive owner of all right, title and interest in and to all information, forms, content, templates, data and other materials that are collected, uploaded or received from you or Authorized Users by or through your use of the Materials, Software or the Services (“Company Data”), including all intellectual property rights relating to Company Data, subject to the rights you grant to us in this Section 10.c. You hereby grant to us a non-exclusive, royalty-free license, to access, use, copy, and disclose Company Data as necessary to provide the Services, or otherwise at Company’s direction. Company represents and warrants that (i) it has at the valid and enforceable right to provide to us all Company Data and materials furnished hereunder for use in accordance with this Agreement; (ii) Company Data is provided in accordance with all applicable laws, including without limitation laws related intellectual property, privacy and export control; (iii) Company Data does not infringe any intellectual property rights; does not violate the privacy, publicity, or other rights of third parties or any other law, statute, ordinance or regulation; and (iv) Company Data does not contain any viruses, Trojan horses, spyware, malware, worms, time bombs, or other harmful content intended to damage, detrimentally interfere with, intercept, or expropriate any system, or data. Company agrees that the Services are not set up for, and Company Data will not contain, any personal information including that concerning health, and we shall have no liability for such data. We shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning processing of Company Data, and data and insights derived therefrom) on an aggregated and anonymized basis notwithstanding anything to the contrary herein, and we will be free (during and after the term hereof) to (i) use such information and data internally to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other of our offerings, and (ii) disclose such data solely in aggregate and de-identified form in connection with our business.
11. Term and Termination.
a. Term. The initial term of this Agreement is as indicated in your Order Form (the “Initial Term”). After the Initial Term, this Agreement will automatically renew for successive periods equal to the Initial Term unless otherwise indicated in the applicable Order Form (each a “Renewal Term” and, together with the Initial Term, the “Term”) unless one of us gives the other written notice of non-renewal at least thirty (30) days before the end of the then-current term.
b. Termination. In addition to any other termination rights described in this Agreement, this Agreement may be terminated at any time:
i. By us, effective when we provide written notice to you, if you fail to pay any Fees when due and if you do not cure this failure within 10 days after our written notice regarding your late payment;
ii. By either party, effective when that party provides written notice to the other, if the other party materially breaches this Agreement and such breach (A) is incapable of cure, or (B) being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice regarding such breach; or
iii. By either party, effective immediately, if the other: (A) is dissolved or liquidated or takes any corporate action for such purpose; (B) becomes insolvent or is generally unable to pay its debts as they become due; (C) becomes the subject of any voluntary or involuntary bankruptcy proceeding under any domestic or foreign bankruptcy or insolvency law; (D) makes or seeks to make a general assignment for the benefit of its creditors; or (E) applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property.
iv. By you, at any time and for any reason or for no reason, upon 30 days prior written notice to us.
c. Effect of Termination. If this Agreement is terminated or expires, then, except as expressly provided in this Agreement, (i) all rights, licenses and authorizations granted by one party to the other will immediately terminate (other than your right and license to use our Materials set forth in Section 3 above, which shall survive in accordance with the terms of the associated open source license agreement, and other than your right and license to use the Deliverables set forth in Section 5 above, which shall survive except in the case of our termination of this Agreement as provided in Section 11.b above), (ii) we each will cease all use of the other party’s Confidential Information (other than with respect to your use of the Materials as permitted under this Agreement, and other than with respect to your use of the Deliverables as permitted under this Agreement which you may continue to use in accordance with this Agreement unless we have terminated this Agreement as provided in Section 11.b above) and promptly destroy or (at such other party’s request) return all such Confidential Information, except that each party may retain Confidential Information in its backups, archives and disaster recovery systems until such Confidential Information is deleted in the ordinary course (so long as it remains subject to all confidentiality and other applicable requirements of this Agreement), and (iii) you will immediately pay to us all Fees and/or other amounts that accrued prior to the date of such expiration or termination. In addition, if you terminate this Agreement in accordance with Section 11.b(iv), you will not be obligated to pay to us any additional cancellation or termination penalty fee, but you will not be entitled to a refund of any amounts (e.g., prepaid fees or otherwise) unless we expressly otherwise agree in writing.
d. Surviving Terms. Sections 2.c and 3.b (Limitations and Restrictions), 8 (Confidentiality), 10 (Intellectual Property Rights), 11.c (Effect of Termination), 13 (Indemnification), 14 (Limitations of Liability), 15 (Miscellaneous), and this Section will survive any expiration or termination of this Agreement.
12. Warranties and Disclaimer. We warrant that (a) we will perform all Services in a timely, professional and workmanlike manner, and using adequate resources and appropriately qualified personnel, and (b) the Software will at all times during the Term substantially conform in all material respects to the specifications set forth in your Order Form and its Documentation. If you provide written notice to us of any breach the foregoing warranties within 30 days after such breach first arises, we will at no additional cost to you re-perform such non-conforming Services or, at our sole option, either (x) modify, fix or correct the Software to remedy such non-conformity, or (y) replace the non-conforming portion of the Software, in each case without causing a material loss of features or functionality of the Software. The re-performance of Services or the correction or replacement of the Software is your only and entire remedy for any breach of the foregoing warranties. OTHERWISE, OUR SERVICES, SOFTWARE, DELIVERABLES AND MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. WE DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER (INCLUDING ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE), AND SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WE DO NOT GUARANTEE THAT OUR SOFTWARE WILL ALERT YOU TO ALL INSTANCES OF SECURITY VIOLATIONS, THREATS OR INTRUSIONS. YOU ACKNOWLEDGE THAT THE SOFTWARE IS DEPENDENT ON YOUR ENVIRONMENT AND ARCHITECTURE AND ON THE THIRD-PARTY SOFTWARE AND TECHNOLOGY IN CONJUNCTION WITH WHICH YOU CHOOSE TO USE THE SOFTWARE AND YOU ASSUME ALL LIABILITY FOR YOUR ENVIRONMENT AND ARCHITECTURE AND SUCH THIRD-PARTY SOFTWARE AND TECHNOLOGY.
1. By Us. We will indemnify, defend and hold harmless you and your officers, directors, employees, agents, successors and permitted assigns (each, including you, an “Indemnitee”) from and against any loss, damage or expense (including reasonable attorneys’ fees) finally awarded by a court of competent jurisdiction, or paid in accordance with a settlement agreement signed by you, in connection with any third-party claim (each, a “Claim”) alleging that your use of the Software or Deliverables (excluding Company Data) as authorized hereunder infringes upon any U.S. patent, copyright or trademark of such third party, or misappropriates the trade secret of such third party. This obligation does not apply unless the Indemnitee (i) promptly gives us written notice of the Claim, (ii) gives us sole control of the defense and settlement of the Claim (provided that we may not settle any Claim that imposes liability on or contains any admission of fault by the Indemnitee without the Indemnitee’s consent), (iii) provides us (at our sole cost and expense) with all available information and reasonable assistance necessary for us to defend or settle the Claim; and (iv) has not compromised or settled the Claim without our prior written approval
2. Mitigation. If the Software or Deliverables are, or in our opinion are likely to be, claimed to infringe any intellectual property right, we may, at our option and our sole cost and expense: (i) obtain the right for you to continue to use the Software or Deliverables as contemplated by this Agreement, (ii) modify or replace the Software or Deliverables to make such Software or Deliverables (as so modified or replaced) non-infringing, or (iii) if the remedies in clauses (i) and (ii) are not feasible within commercially reasonable standards, then we may terminate this Agreement upon written notice and without any liability to you.
3. Sole Remedy. THIS SECTION 13 SETS FORTH YOUR SOLE REMEDIES AND OUR SOLE LIABILITY AND OBLIGATION TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SOFTWARE AND DELIVERABLES) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
14. Limitations of Liability. EXCEPT FOR LIABILITY ARISING FROM OUR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR OUR INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 13 ABOVE, WE WILL NOT BE LIABLE TO YOU FOR ANY DIRECT DAMAGES WHATSOEVER ARISING OUT OF OR RELATED TO THIS AGREEMENT THAT IN THE AGGREGATE EXCEED THE GREATER OF (a) $10,000, OR (b) THE TOTAL AMOUNT OF FEES YOU HAVE PAID TO US IN THE TWELVE-MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENTS GIVING RISE TO YOUR CLAIM. IN ADDITION, IN NO EVENT WILL WE BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY LOST PROFITS, LOST OR DAMAGED DATA, OR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND, WHETHER BASED ON BREACH OF CONTRACT OR WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF WE ARE INFORMED OR OTHERWISE HAVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF SUCH DAMAGES WERE FORESEEABLE.
15. Miscellaneous. (a) Entire Agreement. This Agreement (including any attachment executed by the parties and incorporating this Agreement by reference, including your Order Form) constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties regarding the subject matter of this Agreement (and all past dealing or industry custom). (b) Counterparts. Any Order Form may be executed in one or more counterparts, each of which will be an original, but taken together will constitute one and the same instrument. Execution of a facsimile copy (including PDF) or execution through electronic means will have the same force and effect as execution of an original. (c) Amendment, Severability and Waiver. No change, consent or waiver under this Agreement will be effective unless in writing and signed by the party against which enforcement is sought. Any delay or failure of either party to enforce its rights, powers or privileges under this Agreement, at any time or for any period, will not be construed as a waiver of such rights, powers and privileges, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. (d) Governing Law and Venue. This Agreement will be deemed to have been made in, and will be governed by and construed in accordance with the laws of, the State of North Carolina, without regard to its conflicts of law provisions. The sole jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in Raleigh, North Carolina, and both parties consent to the exclusive jurisdiction of such courts with respect to any such action. (e) Notices. All notices under this Agreement will be in writing and may be delivered by electronic mail in portable document format (.pdf), certified or registered mail, overnight courier, or personal delivery, in each case to the address or e-mail address specified in the Order Form. (f) Assignment. Neither party may assign, delegate or otherwise transfer its rights or obligations under this Agreement without the prior written consent of the other party; provided that either party may assign this Agreement in its entirety without the other party’s consent to its affiliates or to an entity that acquires all or substantially all of the business or assets of such party to which this Agreement pertains, whether by merger, reorganization, acquisition, sale or otherwise. This Agreement will be binding upon, and inure to the benefit of, the successors and permitted assigns of the parties. (g) No Third Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer on any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. The immediately preceding sentence, however, does not constitute a waiver of or otherwise affect a third party’s right to enforce the terms and conditions applicable as contemplated under Section 3 above. (h) Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party will have authority to contract for or bind the other party in any manner whatsoever. (i) Publicity Rights. We may include your name, trademarks and/or logos on our website and/or in other sales and marketing materials in order to factually identify you as a current or former client (as the case may be). (j) Force Majeure. Neither party will be liable for any delays or non-performance of its obligations (excluding the obligation to pay fees due hereunder) arising out of causes not within such party’s reasonable control, including, without limitation, actions or decrees of governmental authorities, criminal acts of third parties, earthquakes, flood, and other natural disasters, war, terrorism, acts of God, or fire (a “Force Majeure Event”), except to the extent that the delay or non-performance was not reasonably safeguarded against (in accordance with industry standards) or the party had notice. (k) Equitable Remedies. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Sections c or 3.b (Limitations and Restrictions), Section 8 (Confidentiality) or Section 10 (Intellectual Property Rights) of this Agreement would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including in a restraining order, an injunction, specific performance and any other relief that may be available from any court of competent jurisdiction, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.