(Updated on December 30, 2021)
These DataEndure Terms of Service (“Terms”) are between DataEndure, Inc. or one of its Affiliates (together, “DataEndure,” “Our,” “We,” “Us” or similar terms) and the customer (“Customer,” “You,” “Your” or similar terms) who accepts these Terms, or accesses and/or uses the DataEndure Solutions (as defined below). These Terms govern Customer’s subscription to the DataEndure Solutions and constitute a binding contract in connection with any paid or Evaluation use of the Solutions.
This is a legal, enforceable contract between You and DataEndure, and by executing these Terms, and where no signature box is available, clicking the “Log In” button to access the Solutions, or otherwise indicating Your consent to the Terms electronically or through access or use of the DataEndure Solutions (and such time “Effective Date”), You expressly agree to be bound by these Terms. If You are entering these Terms on behalf of another entity or person, You hereby represent to DataEndure that You have the authority to bind Customer and its affiliates to these Terms through such consent or use of the Solutions. If You do not have such authority, or if You do not agree to these Terms, You may not subscribe to or use the DataEndure Solutions.
Capitalized terms will have the meaning assigned to such terms where defined throughout these Terms. Each of DataEndure or Customer is sometimes described in these Terms as a “Party” and together, “Parties,” which Parties agree as follows:
A purchase order, service order, statement of work (“SOW”) or quote (which shall be referred to herein as “Order”) means an online form completed by You directly through the DataEndure website, or a written document such as a DataEndure quote, with corresponding purchase order, service order or a similar document agreed to in writing and executed among the Parties, or agreed to among You and a DataEndure approved partner (such as a reseller and collectively, “Partner”) and referencing a quote from DataEndure (“Partner Quote”), in each case covering Your subscription to Solutions or Evaluation offering. For an Order to be valid, it must be executed by both the Customer and DataEndure, by a Partner and Customer, or by a Partner if the executed Order references and accepts a corresponding DataEndure Quote. Unless otherwise expressly specified in the Order executed by DataEndure, the terms of these Terms shall supersede any conflicting terms in an Order.
1.2. Scope of Agreement.
These Terms govern Your purchase of a subscription to DataEndure’s solutions offered by DataEndure at the time of agreement and over time, directly or through a Partner, together with the software underlying such products and services and any updates, patches, bug fixes and versions (“Enhancements”) collectively, the “DataEndure Solutions” or “Solution(s)”. You agree to accept all Enhancements necessary for the proper function of the Solutions as released by DataEndure from time to time, and further agree that DataEndure shall not be responsible for the proper performance of the Solutions or security issues encountered with the Solutions related to Your failure to accept Enhancements in a timely manner.
1.3. Related Services and Products.
As an active Customer subscribing to the Solutions in accordance with these Terms, during the Subscription Term You may receive and/or subscribe to other related services from DataEndure, such as support services (“DataEndure Support”), Technical Account Management (“TAM”), DataEndure’s Professional Services, Incident Response service, or other services (collectively “DataEndure Services”); and/or You may procure a license to certain DataEndure Products. Your subscription to such Other DataEndure Services and Products is subject in each case to applicable terms and conditions of these Terms as well as the specific terms for each such Other DataEndure Services and Products.
All use of the Solutions shall be in accordance with Our then-current published documentation such as technical user guides, installation instructions, articles or similar documentation specifying the functionalities of the Solutions and made available by Us to You through the DataEndure Knowledge Base on the Customer Portal, available at: support.dataendure.com, as updated from time-to-time in the normal course of business (“Documentation”).
1.5. License Grant.
1.5.1. “Subscription”; “License”
Subject to Your compliance with the terms and conditions of these Terms, We hereby grant You (directly or through a Partner, as applicable) a worldwide, non-transferable, non-exclusive subscription “License” during the Subscription Term or any Evaluation Period to access, use, execute, install (as provided for by the applicable Order), store, and display the Solutions (including Enhancements) solely in support of Your (and Your Affiliate(s)) internal business security and operation, in accordance with the Documentation describing the permissible use of the Solutions (“Subscription”). The License granted herein is limited to the number of physical or virtual computing devices and/or computing environments (such as containers or hypervisors) that can process data (each of which shall be referred to herein as an “Endpoint”), Users of the Endpoints and networks (which shall be referred to herein as a “User”), email mailboxes (which shall be referred to herein as “Mailbox”), physical or virtual appliances (which shall be referred to herein as (“Appliance”), terabytes of Endpoint event data processed per month, in the form of network traffic and/or system logs (“SYSLOG”) (which shall be referred to herein as (“Event Data”) and all of which shall be generically referred to herein as (“Node”). All Nodes are part of Customer’s network and computer system(s) as set in scope in an Order (“System”).
For the avoidance of doubt, access to the Solution is only licensed under and pursuant to this Agreement, and may only be licensed on a subscription basis. No title in or to such copies (or the Solution itself) passes to Customer, and Customer has no license hereunder to transfer title therein or thereto. Any reference herein to the purchase, sale, re-sale, distribution (or similar designations) of the Solution will be construed accordingly.
Means any entity that directly, or indirectly through intermediaries, controls, is controlled by, or is under common control with a Party. The license granted to You herein includes the right to connect Your Affiliates’ Nodes to the Solutions so as to provide the Solutions to such Affiliates’ Nodes, provided that You agree to remain fully responsible and liable under these Terms for Your Affiliates use of the Solutions.
Those Product Services, Managed Security Services and Professional Services (each as defined herein), and other related services, as applicable, as generally described in the applicable service definition herein and as specifically set forth in an Order under this Agreement.
1.7. Product Services.
From time to time, You may place an order for Products based on DataEndure’s price list (“Quote”). The Quote shall set forth the Products, the quantity of Products, the pricing, and the delivery date and location. All Products shall be shipped on a common carrier of DataEndure’s choice to Customer F.O.B. manufacturer’s facility. You shall bear all risks of loss, damage, or delay for Products shipped to You upon receipt thereof by common carrier at manufacturer’s facility.
1.8. Managed Security Services.
Means the management of the Solutions providing prevention, identification, investigation and alerting of cyber security incidents within the System to pinpoint and identify indication of compromise within the System. This includes by is not limited to the specific remote management services providing Security Incident and Event Management (“SIEM”) monitoring and alerting services of the System as described in an Order.
1.9. Professional Services.
From time to time, You may place an order for DataEndure’s professional services (“Professional Services”) as set forth in individual SOW. Each SOW shall include the specifications, fees, and the schedule for such Professional Services. DataEndure shall use commercially reasonable efforts to provide the Professional Services in accordance with the terms of this Agreement. DataEndure reserves the right to subcontract any or all portions of the Professional Services that DataEndure is obligated to perform under the SOW, subject to Section 8.2 (Subcontracting). Professional Services of DataEndure are to be rendered by a team, job function(s) or individual(s) listed in the applicable Order (“DataEndure Personnel”), unless Customer agrees in writing that certain specific Professional Services may be provided by another DataEndure Personnel. If Customer determines, in its reasonable discretion, that the continued assignment of certain DataEndure Personnel to its account is not in the best interests of Customer, then it shall give DataEndure written notice to that effect and DataEndure shall immediately remove such person from such assignment (and cause such person to discontinue all use of Customer IP and System); and shall replace that person with another person of suitable ability and qualifications within a reasonable time period.
1.10. Professional Services Scheduling.
“Normal Business Hours” are defined as Monday through Friday 8:00 AM to 6:00 PM local time, in the timezone where Professional Services are being performed, except federal holidays. Professional Services performed outside of Normal Business Hours are at the discretion of DataEndure unless otherwise stated in the applicable Order or SOW. Once the Professional Services are scheduled (the "Engagement"), the Customer agrees to give a minimum of six (6) business days’ notice from the start of the Engagement to change or cancel the Engagement. If canceled in part or whole with less than six (6) business days’ notice, the Customer will be liable for payment up to the total amount scheduled within five (5) business days of the cancelation. In some instances, canceled work or shortened days can be applied as credit to off-site work, including documentation or remote consultations. Please talk to the DataEndure representative to discuss this option prior to scheduling. Early completion of the Engagement does not incur liability to the Customer.
1.11. Other Services.
If You decide to enable, access or use third Party products, applications, services, software, networks or other systems, and/or information which may be linked to the Solutions through Our open APIs (collectively, “Other Services”), including integrating such Other Services directly to Your instance of the Solutions, be advised that Your access and use of such Other Services is governed solely by the terms and conditions of such Other Services, and We do not endorse, are not responsible or liable for, and make no representations as to any aspect of such Other Services, including, without limitation, their content or the manner in which they handle data or any interaction between You and the provider of such Other Services, or any damage or loss caused or alleged to be caused by or in connection with Your enablement, access or use of any such Other Services. You may be required to register for or log into such Other Services on their respective websites. By enabling any Other Services, You expressly permit Us to disclose Your Login as well as Your Data to such Other Services as necessary to facilitate Your enablement and use of such Other Services.
1.12. Third Party Service.
If You enter into an agreement with a third party to manage the installation, onboarding and/or operation of the Solutions on Your behalf (“Third Party Service”) then You may allow such Third Party Service to use the Solutions provided that (i) as between the Parties, You remain responsible for all its obligations under the terms of these Terms; (ii) such Third Party Service only uses the Solutions for Your internal purposes and not for the benefit of any third party or the Third Party Service, and agrees to the terms of these Terms in providing services to You; and (iii) You remain liable to Us for the Third Party Service’s service on Your behalf.
2. Evaluations; Health Checks, Early Adoption and Beta Use.
2.1. Health Checks.
If You agree to allow DataEndure to perform a Solutions Health Check on your behalf, for evaluation purposes, then You agree to work with DataEndure to implement the Solutions in a limited scope, as outlined in the respective Health Check documentation, within your environment for evaluation purposes (“Evaluation”) for a period of up to fourteen (14) days from the start date of the Evaluation (the “Evaluation Period”).
2.2. Evaluation License and Restrictions.
In addition to the license scope detailed elsewhere in these Terms or similar Agreement, during Evaluation You: (i) may install and use, solely during the Evaluation Period, the limited scope outlined in specific Health Check documentation which may be limited to one (1) copy of the Appliance for network or systems security services (“Server Software”) and up to ten (10) copies of Endpoints (unless the Parties mutually agree on a different Evaluation Period, or a different number of copies in a Order executed by both Parties and referencing these Terms); (ii) may install a simulated Mitre Att&ck framework comprising of defanged malware and exploit tactics techniques and procedure, to the extent applicable, only on a single computer, all in accordance with documentation and materials furnished by DataEndure; (iii) shall comply with the use restrictions in Section 3; and (iv) shall uninstall any portion of the Solutions residing on Your Endpoints after the Evaluation Period, return all Documentation in its possession to Us, and confirm to Us in writing (email accepted) of such deletion and uninstallation. If the Evaluation offering is a subscription, You understand that We may disable access to the subscription automatically at the end of the Evaluation period, without notice to Customer. During and following the Evaluation Period, the Parties shall discuss Evaluation results in good faith.
2.3. Early Adoption or Beta Use.
If You are invited to and agree to participate in DataEndure’s Early Adoption Program or Beta Program, You acknowledge that Early Adoption or Beta versions of the Solutions are prerelease versions of the Solutions and as such may contain errors, bugs or other defects. Accordingly, Your use and testing of the Early Adoption and/or Beta versions of the Solutions is subject to the disclaimers stated in Section 2.4 below. Additionally, Your use of Early Adoption and/or Beta versions of the Solutions is subject to DataEndure’s sole discretion as to length and scope of use, updates and support of such Early Adoption or Beta versions of the Solutions.
2.4. DISCLAIMER OF WARRANTIES AND LIABILITY.
DURING EVALUATION, OR EARLY ADOPTION OR BETA USE OF THE SOLUTIONS, THE DATAENDURE SOLUTIONS ARE OFFERED ON AN “AS IS” BASIS, WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NON-INFRINGEMENT, OR THOSE ARISING BY LAW, STATUTE, USAGE OF TRADE, OR COURSE OF DEALING. YOU ASSUME ALL RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOLUTIONS AND ACKNOWLEDGES THAT THE USE OF THE SOLUTIONS, TO THE EXTENT APPLICABLE, MUST BE MADE IN STRICT CONFORMANCE WITH DATAENDURE'S INSTRUCTIONS. WITHOUT DEROGATING FROM THE FOREGOING, IT IS UNDERSTOOD AND AGREED THAT DATAENDURE WILL NOT BE LIABLE FOR ANY NETWORK DOWNTIME, SOLUTIONS DOWNTIME, AND/OR IDENTIFYING AREAS OF WEAKNESS IN THE SOLUTIONS. FOR ALL EVALUATIONS, OR EARLY ADOPTION OR BETA USE OF THE SOLUTIONS, WE SHALL HAVE NO LIABILITY TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR PROFIT, LOST OR DAMAGED DATA, LOSS OF PROGRAMS OR INFORMATION OR OTHER INTANGIBLE LOSS ARISING OUT OF THE USE OF OR THE INABILITY TO USE THE SOLUTIONS, OR INFORMATION, OR ANY PERMANENT OR TEMPORARY CESSATION OF THE SOLUTIONS OR ACCESS TO INFORMATION, OR THE DELETION OR CORRUPTION OF ANY CONTENT OR INFORMATION, OR THE FAILURE TO STORE ANY CONTENT OR INFORMATION OR OTHER COMMERCIAL OR ECONOMIC LOSS, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE), EVEN IF DATAENDURE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR THAT THEY ARE FORESEEABLE. DATAENDURE IS ALSO NOT RESPONSIBLE FOR CLAIMS BY ANY THIRD PARTY. WHILE THE SOLUTIONS ARE PROVIDED FREE OF CHARGE FOR EVALUATION, EARLY ADOPTION OR BETA PURPOSES ONLY, DATAENDURE’S MAXIMUM AGGREGATE LIABILITY TO YOU SHALL NOT EXCEED US $100. IN JURISDICTIONS WHERE THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT ALLOWED THE LIABILITY OF DATAENDURE SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO THE PARTIES OBLIGATIONS UNDER SECTION 7.2 HEREIN.
Except as expressly authorized by these Terms, You may not do any of the following: (i) modify, disclose, alter, translate, copy, reproduce or create derivative works of or use the Solution to develop any service or product that is the same as, substantially similar to, or competes with the DataEndure Solutions (or any components thereof) or any accompanying Documentation; (ii) license, sublicense, resell, distribute, lease, rent, lend, transfer, assign or otherwise dispose of the Solutions (or any components thereof) or any Documentation; (iii) use the Solutions other than as permitted under these Terms, as directly related to Your internal business operations and in conformity with the Documentation, and not otherwise use the Solutions for any other commercial or business use, including without limitation offering any portion of the Solutions as benefits or services to third parties; (iv) use the Solutions in violation of any laws or regulations, including, without limitation, to store or transmit infringing, libelous or otherwise unlawful or tortious material, or material in violation of third-party privacy rights; (v) use the Solutions to store, transmit or test for any viruses, software routines or other code designed to permit unauthorized access, disable, erase or otherwise harm software, hardware or data, or to perform any other harmful actions; (vi) probe, scan or test the efficacy or vulnerability of the Solutions, or take any action in an effort to circumvent or undermine the Solutions, except for the legitimate testing of the Solutions in coordination with DataEndure, in connection with considering a subscription to the Solutions as authorized herein; (vii) attempt or actually disassemble, decompile or reverse engineer, copy, frame or mirror any part or content of the Solutions, or otherwise derive any of the Solutions’ source code; (viii) access, test, and/or use the Solutions in any way to build a competitive product or service, or copy any features or functions of the Solutions; (ix) interfere with or disrupt the integrity or performance of the Solutions; (x) attempt to gain unauthorized access to the Solutions or their related systems or networks; (xi) disclose to any third party or publish in any media any performance information or analysis relating to the Solutions; (xii) fail to maintain all copyright, trademark and proprietary notices on the Solutions and any permitted copy thereof; (xiii) cause or permit any Solutions user or third party to do any of the foregoing; (xiv) modify, alter, adapt, arrange, translate, decompile, disassemble, reverse engineer, or otherwise attempt to reconstruct or discover the source code or non-literal aspects (such as, but not limited to, the underlying structure, sequence, organization, ideas, routines, facilities, and formats) of, the Solution; (xv) remove, alter, or conceal, in whole or in part, any Proprietary Legends displayed or contained on/in the Solution; (xvi) circumvent, disable or otherwise interfere with security-related features of the Solution, or with features that prevent or restrict use of the Solution; (xvii) disclose to the public the results of any internal performance testing or benchmarking studies of/about the Solution, without first (a) sending the results and related study(ies) to DataEndure, and (b) obtaining DataEndure’s approval in writing of the assumptions, methodology and other parameters of the testing and study(ies); (xviii) use the Solution in any way that is infringing, deceptive, harassing, or defamatory, or for any inappropriate purpose (as DataEndure will determine at its sole and absolute discretion), or contrary to any Law; and/or; (xix) publish, transmit, or link to any robot, spider, crawler, virus, malware, Trojan horse, spyware, or similar malicious code or item intended (or that has the potential) to damage, disrupt, compromise, or exploit the Solution or a third party's device or software.
3.2. Software Access.
To the extent DataEndure provides its express, written consent for Customer to access any software owned or licensed by DataEndure, the following will apply: (i) access shall be subject to restrictions established by DataEndure from time to time for purposes of supporting such access and for security purposes; (ii) access is provided to Customer solely for purposes of receiving the Services and shall not be used by Customer for any other purpose; (iii) DataEndure reserves the right to monitor and record data and information in connection with provision of the access solely to the extent DataEndure deems reasonably necessary for maintaining performance standards and system security, and subject to the terms of this Agreement including with respect to Customer IP; and (iv) Customer will not receive (and Customer hereby expressly disclaims) any ownership, rights, or licenses greater than those set forth in this Section.
4. Ownership and Reservation of Rights.
As between the Parties, You reserve all right, title and interest in and to Your Data and all Intellectual Property Rights embodied in Your Data (collectively, the “Customer IP”). Customer IP may be more explicitly described in an applicable Order.
As between the Parties, We reserve all right, title and interest in and to the Solutions (and any and all modifications to or derivative works of the Solutions) and any and all Intellectual Property Rights embodied in the DataEndure Solution (collectively, the “DataEndure IP”). DataEndure and its licensors and suppliers shall own all right, title and interest, including all Intellectual Property rights, in and to the DataEndure IP, including but not limited to (i) all right, title and interest in and to the Services and Solutions (with the exception of the deliverables developed solely or jointly by or for DataEndure solely for Customer in connection with DataEndure’s performance of any Service (whether or not patentable or copyrightable), including but not limited as described in an Order (“Deliverables”)) and any work product specifically identified in an Order as outside the Deliverables and owned by DataEndure; and (ii) all concepts, methods, processes, software, text, graphics, images, designs, databases, data, inventions and any improvements, enhancements, modifications, and derivative works thereto. To the extent that any DataEndure IP are incorporated into the Deliverables, then DataEndure hereby grants Customer, without further consideration, a worldwide, perpetual, transferable, irrevocable, non-terminable fully-paid license to use, reproduce, modify, distribute, publicly perform, publicly display, transmit, create improvements, and create derivative works based upon such DataEndure IP, and to sublicense same through multiple tiers, for Customer’s internal business purposes. DataEndure acknowledges and agrees that DataEndure will have no right, title or interest, including Intellectual Property rights, in or to any improvements to such DataEndure IP which are developed by or on behalf of Customer as part of the Services.
4.3. Reservation of Rights.
Each Party reserves all rights not expressly granted in these Terms, and no licenses are granted by one Party to the other Party under these Terms, whether by implication, estoppel or otherwise, except as expressly set forth in these Terms. For the purpose of these Terms, “Intellectual Property Rights” means all patents, copyrights, moral rights, trademarks, trade secrets and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing.
5. Billing, Plan Modifications and Payments.
Those “Orders” attached to or referencing this Agreement, as agreed to in writing by both Parties and setting forth the particular Services or Solution under this Agreement. Orders can be in the form of a Quote, Statement of Work (or “SOW”) or Service Order (or “SO”).
The fees for the Services or Solutions and any Other DataEndure Services or Products shall be set forth in one or more Orders (“Fees”). All Fees are due payable directly to Us, or to the applicable Partner, within the timeframe detailed in the applicable valid Order (and absent such valid Order, within thirty (30) days of Customer’s first use of the Solutions). If You fail to pay Your Fees within five (5) days of Our notice to You that payment is past due or delinquent, or if You do not update payment information upon Our (or a Partner’s) request, We will no longer assume responsibility to providing the Solutions under these Terms and, in addition to Our other remedies We may suspend or terminate Your access to the Solutions. Where Fees are paid directly to Us, all payments due under these Terms will be made in U.S. Dollars by check, bank wire transfer or credit card (credit card payments are subject to a 4% processing fee), in immediately available funds to the applicable account designated by Us. No refunds or credits for paid Fees will be issued to Customer unless Customer terminates these Terms pursuant to Section 11.2 or We terminate these Terms pursuant to Section 9.1.
5.3. License Fees.
Customer shall pay DataEndure the fees for set forth in the applicable Order (“License Fees”). Unless stated otherwise in an Order, Customer shall pay each undisputed invoice issued by DataEndure hereunder within thirty (30) days of Customer’s receipt of the invoice, in U.S. dollars in immediately available funds. Customer will have no obligation to pay any amounts invoiced after ninety (90) days after such amounts were incurred.
5.4. Product Costs.
Customer shall pay DataEndure the costs for the Products as set forth in the applicable Order (“Product Costs”). Unless stated otherwise in an Order, Customer shall make all payments for Product Costs within thirty (30) days after receipt of DataEndure’s invoice. Customer will have no obligation to pay any amounts invoiced after ninety (90) days after such amounts were incurred.
DataEndure may also invoice Customer for reasonable and necessary out-of-pocket expenses incurred in the performance of Professional Services provided that: any and all such expenses must (i) comply with Customer’s travel policy; (ii) be at DataEndure’s actual cost incurred without mark-up of any kind; (iii) be reasonable and customary; (iv) approved in writing in advance by Customer prior to DataEndure incurring such expense, unless otherwise provided in the applicable Order; and (v) be accompanied by legible copies of receipts or other back-up documentation sufficient enough for Customer to validate any such charges. Payment for any undisputed invoices received by Customer from DataEndure shall be due within thirty (30) calendar days of receipt of such invoice from DataEndure. Customer shall not be liable for payment of any amounts incorrectly stated on an invoice.
5.6. Services Fees.
Customer shall pay DataEndure the fees for Services set forth in the applicable Order (“Fees”). Unless stated otherwise in an Order, Fees will be billed in advance for the Service at the beginning of the month (“Billing Date") for each one (1) month(s), or applicable subscription period as set in an Order, of recurring Services. Overages will be billed in arrears, for Services that are not specifically documented as in scope for the recurring Service, each month at the beginning of the month “Usage Billing Date” for the previous month’s usage or overage. Customer shall pay all Fees within thirty (30) days after receipt of invoice, or a late payment charge of 1.5% per month may be added to Customer’s bill and immediately become due and payable.
5.7. Plan Modifications.
If You choose to increase the number of Nodes You subscribe to under an applicable Order or Quote during Your then-effective Subscription Term (a “Subscription Increase”) or upgrade your subscription to a different subscription plan (“Plan Upgrade”), We shall invoice You (or Your Partner) for the incremental Fees associated with such Subscription Increase and/or Plan Upgrade on a pro rata basis at the price per Node specified in the corresponding Quote or valid Order over the remaining period of such Subscription Term (which Fees shall be due and payable upon implementation of such Subscription Increase and/or Plan Upgrade) and thereafter in any Renewal Subscription Term unless otherwise agreed among the Parties in a Order. No Fees refund or credit shall be granted where Customer elects to not use the Solutions on previously subscribed Nodes.
5.8. Suspension of Service & Interest.
If timely payment is not received, DataEndure reserves the right, in addition to any other rights it may have, to: (i) suspend the Services until such payment is made in full; (ii) charge interest on the amount past due at the lesser of 1.5% per month or the maximum allowed by law; and (iii) invoice Customer for all costs of collection including, but not limited to, reasonable attorneys’ fees.
All prices set forth in this Agreement are exclusive of any applicable taxes. To the extent, if any, that Customer is required to deduct or withhold taxes from any amounts payable hereunder, the amounts shall be deemed increased so that, after such deduction or withholding, DataEndure receives the actual amount contemplated to be received by DataEndure hereunder. Customer shall pay, indemnify, and hold harmless DataEndure from all import and export duties, customs fees, levies, or imports, and all sales, use, value added, or other fees, governmental charges, or taxes of any nature, including penalties and interest, and all government permit or license fees assessed on or with respect to any software or materials licensed, provided, or otherwise made available to Customer and any Services provided to Customer. Customer will have no liability for taxes that are statutorily imposed on DataEndure, including taxes or fees measured by DataEndure’s net or gross income. DataEndure shall add to each invoice any and all applicable taxes that are legally required to be collected from Customer under applicable law, and is responsible to pay any such taxes that DataEndure fails to include on the invoice for the taxable fees. DataEndure shall be responsible for remitting all such taxes collected from Customer to the appropriate governmental authority in compliance with applicable law. Customer shall not in any way be responsible for the excluded taxes described herein, and DataEndure shall bear sole responsibility for all such excluded taxes. DataEndure shall be solely responsible for reporting, withholding, and/or paying any and all employment-related taxes, payments, and/or withholdings, including federal, state, and local income taxes, Social Security, Medicare, unemployment or disability deductions, withholdings and/or payments.
6. Privacy and Security.
6.1. Processing Limitations and Security Obligation.
In providing You the Solutions and Other DataEndure Services and Products, We will (i) store, process and access Your Data only to the extent reasonably necessary to provide you the Solutions and/or Other DataEndure Services and Products, and to improve the Solutions and Other DataEndure Services and Products; and (ii) implement and maintain commercially reasonable technical, physical and organizational measures to protect the security, confidentiality and integrity of Your Data hosted by Us or Our authorized third party service providers from unauthorized access, use, alteration or disclosure. “Your Data” means all data and information associated with You which is uploaded to, processed by, generated by, and/or stored within the Solutions by You or through Your use of the Solutions.
6.2. Data Integrity.
Customer shall be responsible for properly backing up all of the System and ensuring the integrity of the data before the commencement of any Services or Solutions where DataEndure interacts with the System. If the Customer is unable or unwilling to back up the data, the Customer hereby holds DataEndure harmless of any liability for data loss or corruption on the System DataEndure works with.
6.3. Data Encryption.
It is the Customer’s responsibility to manage and secure their own encryption keys for their data. If the Customer loses or corrupts the Encryption Key, DataEndure will not be able to restore the data.
6.4. Data Privacy.
6.5. Hosting Location.
Unless otherwise specifically agreed among the Parties, Your Data may be processed and/or hosted by DataEndure or its authorized third-party service providers in the United States, the EEA or other locations around the world.
6.6. Anonymized Data.
Notwithstanding anything to the contrary in these Terms, We may monitor, collect, use and store anonymous and aggregate statistics and/or data regarding use of the Solutions solely for Our internal business purposes (including, but not limited to, improving the Solutions and creating new features) and such anonymized and aggregate data shall not be considered Your Data.
“Confidential Information” means all information disclosed (whether in oral, written, or other tangible or intangible form) by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) concerning or related to these Terms or the Disclosing Party that is marked as confidential or proprietary, or that the Receiving Party knows or reasonably should know is confidential information of the Disclosing Party given the facts and circumstances surrounding the disclosure of the information by the Disclosing Party. Confidential Information includes, but is not limited to, the terms and conditions of these Terms, as well as all proprietary and/or non-public technical, business, commercial, financial and/or legal information, such as, without limitation, any and all Solutions information generally shared with Customer and as specifically related to Customer, Solutions Information gained by Customer through use of the Solutions, business plans, product information, pricing, financial plans, know how, Customer information, strategies, inventions (whether or not patentable), techniques, methods, algorithms, software, software design and architecture, computer code, documentation, design and functional specifications, problem reports, performance information, interfaces, and other similar information, but excluding Your Data. Each Party’s materials shall be deemed to be such Party’s Confidential Information subject to the exclusions in Section 7.3 (Exceptions) below.
The Receiving Party will maintain in confidence, during the term of these Terms and for three (3) years following the effective date of termination of these Terms, the Confidential Information, and will not use such Confidential Information except as expressly permitted in these Terms (provided that Confidential Information defined as a trade secret under any applicable law shall be maintained in confidence so long as it retains its confidentiality status under such laws). The Receiving Party will use the same degree of care in protecting the Confidential Information as the Receiving Party uses to protect its own confidential and proprietary information from unauthorized use or disclosure, but in no event less than reasonable care. Confidential Information will be used by the Receiving Party solely for the purpose of carrying out the Receiving Party’s obligations under these Terms, and the Receiving Party will only disclose Confidential Information to its directors, officers, employees and/or contractors who have a need to know such Confidential Information in order to perform their duties under these Terms, and if such directors, officers, employees and/or contractors have executed a non-disclosure agreement with the Receiving Party with terms no less restrictive than the non-disclosure obligations contained in this Section 7.2. Provided, however, that each Party may disclose the terms and conditions of these Terms: (i) to legal counsel of such Party; (ii) to such Party’s accountants, banks, financing sources and their advisors; (iii) in connection with the enforcement of these Terms or rights under these Terms; or (iv) in connection with an actual or proposed merger, acquisition, or similar transaction.
Confidential Information will not include information that: (i) is in or enters the public domain without breach of these Terms through no fault of the Receiving Party; (ii) the Receiving Party can reasonably demonstrate was in its possession prior to first receiving it from the Disclosing Party; (iii) the Receiving Party can demonstrate was developed by the Receiving Party independently, and without use of or reference to, the Confidential Information; or (iv) the Receiving Party receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation. In addition, the Receiving Party may disclose Confidential Information that is required to disclose by law, or by a subpoena or order issued by a court of competent jurisdiction (each, an “Court Order”), and where such Court Order is shown the Receiving Party shall: (a) give the Disclosing Party written notice of the Court Order within 24 hours after receiving it; and (b) cooperate fully with the Disclosing Party before disclosure to provide the Disclosing Party with the opportunity to interpose any objections it may have to disclosure of the information required by the Court Order and seek a protective order or other appropriate relief. In the event of any dispute between the Parties as to whether specific information is within one or more of the exceptions set forth in this Section 7.3, Receiving Party will bear the burden of proof, by clear and convincing evidence, that such information is within the claimed exception(s).
The Receiving Party acknowledges that any unauthorized disclosure of Confidential Information will result in irreparable injury to the Disclosing Party, which injury could not be adequately compensated by the payment of money damages. In addition to any other legal and equitable remedies that may be available, the Disclosing Party will be entitled to seek and obtain injunctive relief against any breach or threatened breach by the Receiving Party of the confidentiality obligations hereunder, from any court of competent jurisdiction, without being required to show any actual damage or irreparable harm, prove the inadequacy of its legal remedies, or post any bond or other security.
8. Representations, Warranties and Remedies.
8.1. General Representations and Warranties.
Each Party represents and warrants the following: (i) it is validly existing and in good standing under the laws of the place of its establishment or incorporation; (ii) it has full corporate power and authority to execute, deliver and perform its obligations under these Terms; (iii) the person signing these Terms on its behalf has been duly authorized and empowered to enter into these Terms; (iv) these Terms are valid, binding and enforceable against it in accordance with its terms; (v) it shall deliver (as to DataEndure ) and operate (as to Customer) the Solutions in material conformity with the Documentation and the terms herein; and (v) it will perform its obligations under these Terms in accordance with applicable federal or state laws or regulations.
DataEndure reserves the right to employ agents and subcontractors to assist DataEndure when providing any part of the Services; provided, however, that DataEndure shall not subcontract any of the Services without Customer’s written consent, which may be granted reasonably in Customer’s discretion. In the event DataEndure uses contractors, subcontractors or any other persons who are not employees of DataEndure (“DataEndure Subcontractors”), to perform any of the Services, DataEndure shall: (i) ensure all of its DataEndure Subcontractors’ compliance with all of the terms and conditions of this Agreement; (ii) remain solely responsible for the performance, work and any and all activities of the DataEndure Subcontractors; (iii) remain solely liable for any and all acts or omissions by such DataEndure Subcontractor(s); and (iv) be solely liable for all payments to its DataEndure Subcontractors and for all losses arising out of, or relating to, the performance or failure of performance, of any such DataEndure Subcontractors, whether or not the services of such DataEndure Subcontractors were authorized hereunder. Nothing in this Agreement shall be construed to create any contractual relationship between Customer and any DataEndure Subcontractors. Any reference to DataEndure Personnel in this Agreement includes agents and DataEndure Subcontractor staff. At no time may Customer mandate that DataEndure engage a specific contractor or subcontractor.
8.3. Conformity with Documentation.
We warrant that at any point in time during Your Subscription Term, the most recent release of the Solutions (“Current Release”) will substantially conform in all material respects with the Documentation. DataEndure’s sole obligation for material non-conformity with this warranty shall be, in DataEndure’s sole discretion, to use commercially reasonable efforts (i) to provide You with an error-correction or workaround which corrects the reported non-conformity; (ii) to replace the non-conforming portions of the Solutions with conforming items; or (iii) if DataEndure reasonably determines such remedies to be impracticable within a reasonable period of time, to terminate these Terms and refund the Fees paid for the Solutions. The above warranty will not apply: (a) if the Solutions are not used in compliance with the Documentation; (b) if any unauthorized modifications are made to the Solutions by You or any third party; (c) to use of early releases of the Solutions which are not the Current Release or the Solutions release immediately preceding the Current Release; (d) to defects due to accident, abuse or improper use by You; or (e) to Evaluation or Early Adoption use of the Solutions.
DATAENDURE IS BEING ENGAGED ONLY TO PROVIDE THE SERVICES SET FORTH IN THIS AGREEMENT AND IN ORDERS AGREED BY THE PARTIES IN WRITING, INCLUDING ANY AGREED DELIVERABLES. THE FOREGOING LIMITED WARRANTIES DO NOT APPLY TO MODIFICATIONS TO THE SERVICES OR THE DELIVERABLES MADE BY CUSTOMER UNLESS PERFORMED AT THE DIRECTION OF DATAENDURE. DATAENDURE SHALL NOT BE LIABLE FOR ANY LOSS OF DATA AND SHALL NOT BE RESPONSIBLE FOR RESTORING ANY LOST DATA OR SOFTWARE EXCEPT AS SPECIFICALLY DESCRIBED IN THIS AGREEMENT OR THE APPLICABLE ORDER. THE LIMITED WARRANTIES DO NOT APPLY TO ANY THIRD-PARTY PRODUCTS OR SERVICES, HOWEVER, AND TO THE EXTENT PERMITTED, DATAENDURE WILL PASS THROUGH ANY WARRANTIES FROM SUPPLIERS OF PRODUCTS OR SERVICES. WITH THE EXCEPTION OF THE FOREGOING LIMITED WARRANTIES, (I) DATAENDURE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND RELATING TO THE SERVICES OR DELIVERABLES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE AND NON-INFRINGEMENT, AND (II) DATAENDURE MAKES NO WARRANTY THAT THE SERVICES AND ANY DELIVERABLES WILL MEET CUSTOMER'S REQUIREMENTS, THAT THE RESULTS OBTAINED FROM THE USE OF THE FOREGOING WILL BE SATISFACTORY, ACCURATE OR RELIABLE, OR THAT THE SERVICES OR DELIVERABLES WILL MEET CUSTOMER'S EXPECTATIONS. THE REPRESENTATIVES OF DATAENDURE HAVE NO AUTHORITY TO GIVE ANY WARRANTIES ON BEHALF OF DATAENDURE. CUSTOMER IS SOLELY RESPONSIBLE FOR ANY COURSE OF ACTION BASED ON SUCH SERVICES.
9. Indemnification Obligations.
9.1. Infringement Indemnity.
DataEndure will indemnify You and Your directors, officers, employees, contractors, agents, or other authorized representatives (“Customer Indemnitees”) from and against any and all third party claims, suits, actions or proceedings (each a “Claim”) alleging that Your use of the Solutions infringes or misappropriates a third party’s valid Intellectual Property Right. DataEndure, at its expense, will defend any such Claim by reason of Your use of the Solutions as permitted hereunder, and pay damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorneys’ fees, costs, penalties, interest and disbursements) finally awarded by a court of competent jurisdiction or included in a settlement approved by DataEndure. In the event of a Claim pursuant to this Section 9.1, DataEndure may, at DataEndure’s option and at DataEndure’s expense: (i) obtain for Customer the right to continue to exercise the license granted to Customer under these Terms; (ii) substitute the allegedly infringing component for an equivalent non-infringing component; or (iii) modify the Solutions to make them non-infringing. If (i), (ii), or (iii) is not obtainable on commercially reasonable terms, DataEndure may terminate these Terms, after providing Customer a reasonable time (no less than 30 days) to transition to an alternative solution, unless DataEndure determines in its reasonable discretion that such use of the Solutions will likely result in infringement and in such case may terminate these Terms effective immediately with concurrent written notice to Customer. In the event of a termination of these Terms pursuant to this Section 9.1, all rights and licenses with respect to the Solutions will immediately cease and DataEndure will refund to Customer all prepaid Fees for the Solutions attributable to the Subscription Term (as outlined in the applicable Order) following the termination of these Terms. DataEndure’s indemnification obligations do not extend to Claims arising from or relating to: (a) any negligent or willful misconduct of any Customer Indemnitees; (b) any combination of the Solutions (or any portion thereof) by any Customer Indemnitees or any third party with any equipment, software, data or any other materials where the infringement would not have occurred but for such combination, unless such combination is the customary, ordinary, and intended use of the Solutions; (c) any modification to the Solutions by any Customer Indemnitees or any third party where the infringement would not have occurred but for such modification; (d) the use of the Solutions by any Customer Indemnitees or any third party in a manner contrary to the terms of these Terms where the infringement would not have occurred but for such use; or (e) the continued use of the Solutions after DataEndure has provided a substantially equivalent non-infringing software or service.
9.2. Customer Indemnity.
Customer, at its sole expense, will indemnify DataEndure and its directors, officers, employees and agents or other authorized representatives (“DataEndure Indemnitees”) from and against any Claim, and be liable for any related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorneys’ fees, costs, penalties, interest and disbursements) arising out of: (a) Customer’s use of the Solutions in breach of these Terms; (b) Customer’s use of any third party IP; (c) breach or alleged breach of Customer’s obligations under Sections 1.6 (Other Services), 1.7 (Third Party Service) or 3 (Restrictions) herein; or (d) the failure of Your administrators of Your account to maintain the confidentiality of their login information to such account.
The indemnifying Party’s indemnification obligations under this Section 9 are conditioned upon the indemnified Party: (i) giving prompt written notice of the Claim to the indemnifying Party once the indemnified Party becomes aware of the Claim (provided that failure to provide prompt written notice to the indemnifying Party will not alleviate an indemnifying Party’s obligations under this Section 9 to the extent any associated delay does not materially prejudice or impair the defense of the related Claims); (ii) granting the indemnifying Party the option to take sole control of the defense (including granting the indemnifying Party the right to select and use counsel of its own choosing) and settlement of the Claim (except that the indemnified Party’s prior written approval will be required for any settlement that reasonably can be expected to require an affirmative obligation of the indemnified Party); and (iii) providing reasonable cooperation to the indemnifying Party and, at the indemnifying Party’s request and expense, assistance in the defense or settlement of the Claim.
10. Limitation of Liability.
SUBJECT TO ANY SPECIFIC LIMITATIONS ON LIABILITY STATED IN THIS SECTION, IN NO EVENT WILL EITHER PARTY’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER TO DATAENDURE (OR ITS RESELLER) FOR 6 MONTHS SUBSCRIPTION FEES AT THE TIME OF THE EVENT OR EVENTS LEADING TO THE ALLEGED DAMAGES.
IN THE EVENT OF A BREACH OF SECTION 6 (PRIVACY AND SECURITY) BY DATAENDURE, DATAENDURE’S TOTAL LIABILITY SHALL NOT EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER TO DATAENDURE (OR ITS RESELLER) FOR SIX (6) MONTHS SUBSCRIPTION FEES EFFECTIVE AT THE TIME OF THE EVENT OR EVENTS LEADING TO THE ALLEGED DAMAGES.
THE LIMITATIONS ON LIABILITY IN SECTIONS 10 SHALL NOT APPLY TO BREACHES OF SECTION 3 (RESTRICTIONS), SECTION 7 (CONFIDENTIALITY) OR TO EACH PARTY’S INDEMNIFICATION OBLIGATIONS (SECTIONS 9.1 AND 9.2).
IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, ANY INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF, OR IN CONNECTION WITH THESE TERMS, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. THIS SECTION 10 WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THESE TERMS IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
11. Term, Termination and Effect of Termination.
Unless otherwise agreed to in writing among Parties or in a valid Order among You and a Partner, the term of these Terms will begin on the Effective Date and continue for twelve (12) months (the “Initial Subscription Terms”), and thereafter these Terms and the underlying Solutions subscription shall renew for additional successive periods identical in length to the Initial Subscription Term (“Renewal Subscription Term” and collectively, “Subscription Term”), unless either Party notifies the other in writing no less than thirty (30) days prior to the close of the then-current Initial or Renewal Subscription Term of its intention not to renew. Any Subscription Term may also (i) be terminated in accordance with Section 11.2 below; or (ii) be terminated by Us in accordance with Section 9.1.
In addition to Our right to terminate these Terms pursuant to Section 9.1, either Party may terminate these Terms, for cause, if the other Party: (i) materially breaches these Terms and does not cure such breach within thirty (30) days after its receipt of written notice of such breach; or (ii) becomes insolvent, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority. Additionally, We may terminate these Terms immediately for cause by providing concurrent notice to You if We believe that You are using the Solutions in any unauthorized manner likely to cause harm to DataEndure, the Solutions or a third party.
11.3. Effect of Termination.
Upon any termination or expiration of these Terms: (i) all rights and licenses granted to Customer under these Terms will immediately terminate; (ii) all of Our obligations under these Terms (including, Our performance of the DataEndure Support) will immediately cease; (iii) there will be no refund for any pre-paid and unused Fees as of the termination date (except where You terminate these Terms due to DataEndure’s material breach or where DataEndure terminates these Terms under Section 9.1 herein), and You will immediately pay Us any Fees due and payable under these Terms as of the termination date; (iv) upon receiving a written request from the Disclosing Party, the Receiving Party will promptly return to the Disclosing Party all Confidential Information of the Disclosing Party then in its possession or destroy all copies of such Confidential Information, at the Disclosing Party’s sole discretion and direction; and (v) You will immediately cease all use of the Solutions and destroy and/or permanently delete all copies of any components of the Solutions in Your possession. DataEndure reserves the right to investigate suspected violations of Customer’s obligations under Section 11.3(v) herein. Customer will immediately confirm, in writing, that it has complied with these Sections 11.3(iv) and 11.3(v) at Our request. Notwithstanding any terms to the contrary in these Terms, Sections 3, 4, 5, 7, 8.2, 9, 10, 11.3 and 12 will survive any termination of these Terms.
12. General Provisions.
12.1. Dispute Resolution.
Dispute Resolution. Any claim or dispute between the Parties and arising out of, or in connection with, this Agreement, an Order, or the relationship created between the Parties as a result of this Agreement (a “Dispute”) that cannot be resolved by direct discussions between the Parties shall be resolved by confidential binding arbitration in accordance with this Section 12.1. The Party wishing to initiate arbitration hereunder will deliver to the other Party a written demand for arbitration setting forth the basis of the initiating Party’s claim and the dollar amount of damages sought. Once an initiating Party initiates an arbitration hereunder, the initiating Party and the other Party will engage in a good faith, one (1) day non-binding mediation before a sole mediator selected from the panel of mediators of the JAMS (or its successor) before proceeding with the arbitration. Each Party in the mediation will pay such Party’s own costs and fees, and the Parties will split the fees of the mediator. The Parties may mutually agree to extend the mediation beyond one (1) day. To the extent that the Dispute is not resolved through the mediation process described above, an arbitration hereunder will (i) be heard and determined by an arbitrator (who will be a retired state or federal judge with at least five (5) years judicial experience), selected by the Parties from a list of neutrals provided by JAMS, and if the Parties cannot agree, by JAMS itself; (ii) take place in the applicable city as determined below; and (iii) be conducted in accordance with JAMS Arbitration Rules and Procedures (or any successor rules and procedures), in effect at the time the initiating Party delivers to the other Party the demand for arbitration required hereunder. Mediation and arbitration shall be initiated and conducted exclusively in the State of California. In determining a claim, the arbitrator will apply the laws of the State of California without regard to its conflicts of law provisions. The arbitration proceedings and the award of the arbitrator will be confidential. Each Party in the arbitration will pay such Party’s own costs and fees, and the Parties will split the fees of the arbitrator. The ruling of the arbitrator will be final and binding on both Parties, and no appeal may be taken. The ruling of the arbitrator may be entered and enforced as a judgment by a court of competent jurisdiction. The arbitration provisions of this Agreement may be enforced by any court of competent jurisdiction, and the Party seeking enforcement shall be entitled to an award of all costs, fees and expenses, including reasonable attorneys’ fees, to be paid by the Party against whom enforcement is ordered. Each Party understands the consequences of agreeing to binding arbitration under this Section 12, including giving up any constitutional or statutory rights to have the Dispute determined by a court of law or by a jury; that discovery of information in arbitration may be limited; that the application of the rules of evidence may be relaxed; that the arbitration decision will be final and binding and there will be no right of appeal, judicial or otherwise; and that arbitration is more private than a court trial. This Section 12.1 shall not preclude Parties from seeking provisional remedies (e.g., injunctions) in aid of mediation or arbitration from a court of appropriate jurisdiction.
12.2. Entire Agreement.
These Terms, together with all exhibits attached thereto (all of which are incorporated herein by reference), set forth the entire agreement and understanding of the Parties relating to Your subscription to the Solutions, and the Parties herein expressly agree that these Terms supersede all prior or contemporaneous potentially or actually conflicting terms in agreements, proposals, negotiations, conversations, discussions and/or understandings, whether written or oral, with respect to such subject matter and all past dealing or industry customs (including without limitation any nondisclosure agreement among the Parties relating to any prior use of the Solutions, any Order and/or another agreement among the Parties in connection with Your consideration and/or evaluation of the Solutions), excluding only any written agreement executed by DataEndure, expressly referencing these Terms and only to the extent expressly superseding specific terms in these Terms.
12.3. Independent Contractors.
Neither Party will, for any purpose, be deemed to be an agent, franchisor, franchise, employee, representative, owner or partner of the other Party, and the relationship between the Parties will only be that of independent contractors. Neither Party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other Party, whether express or implied, or to bind the other Party in any respect whatsoever.
12.4. Governing Law and Venue.
These Terms will be governed by and construed in accordance with the laws of the State of California, without regard to conflict of law principles. The state or federal court in Santa Clara County, California will be the jurisdiction in which any suits should be filed if they relate to these Terms. Prior to the filing or initiation of any action or proceeding relating to these Terms, the Parties must participate in good faith mediation in Santa Clara County, California (except an action or proceeding required to protect or enforce a Party’s Intellectual Property Rights). If a Party initiates any proceeding regarding these Terms, the prevailing Party to such proceeding is entitled to reasonable attorneys’ fees and costs for claims arising out of these Terms.
DataEndure agrees that We may not reference and use Your name and trademarks in DataEndure marketing and promotional materials, including, but not limited to, the Site, solely for purposes of identifying You as Our customer without Your consent. Otherwise, neither Party may use the trade names, trademarks, service marks, or logos of the other Party without the express written consent of the other Party.
Neither these Terms nor any right or duty under these Terms may be transferred, assigned or delegated by a Party, by operation of law or otherwise, without the prior written consent of the other Party and such consent shall not be unreasonably delayed or withheld. Any attempted transfer, assignment or delegation without such consent will be void and without effect. Notwithstanding the foregoing, each Party may assign these Terms to a successor of substantially all of its business or assets, whether by merger, sale of assets, sale of stock, sale of control, reorganization or otherwise, with written notice to the other Party, provided that such successor in interest agrees in writing to assume all of the assigning Party’s obligations under these Terms. Subject to the foregoing, these Terms will be binding upon and will inure to the benefit of the Parties and their respective representatives, heirs, administrators, successors and permitted assigns.
12.7. U.S. Government Rights.
If Customer is, or is entering into this Agreement on behalf of, any agency or instrumentality of the United States Government, the Product and the Documentation are “commercial computer software” and “commercial computer software documentation,” and pursuant to FAR 12.212 or DFARS 227.7202, and their successors, as applicable, use, reproduction and disclosure of the Documentation are governed by the terms of this Agreement.
12.8. Export Compliance.
The Solutions, and DataEndure Software or other components of the Solutions which We may provide or make available to You for use by Your users are subject to U.S. export control and economic sanctions laws. You agree to comply with all such laws and regulations as they relate to Your access to and use of the Solutions. You shall not access or use the Solutions if You are located in any jurisdiction in which the provision of the Solutions is prohibited under U.S. or other applicable laws or regulations (a “Prohibited Jurisdiction”) and You agree not to grant access to the Solutions to any government, entity or individual located in any Prohibited Jurisdiction. You represent, warrant and covenant that (i) You are not named on any U.S. government list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person; (ii) You are not a national of, or a company registered in, any Prohibited Jurisdiction; (iii) You shall not permit users to access or use the Solutions in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions; and (iv) You shall comply with all applicable laws regarding the transmission of technical data exported from the U.S. and the country in which You and users are located. You represent that neither You nor any of Your subsidiaries is an entity that (a) is directly or indirectly owned or controlled by any person or entity currently included on the Specially Designated Nationals and Blocked Persons List or the Consolidated Sanctions List maintained by the Office of Foreign Assets Control, US Department of the Treasury ("OFAC") or other similar list maintained by any governmental entity, or (b) is directly or indirectly owned or controlled by any person or entity that is located, organized, or resident in a country or territory that is, or whose government is, the target of sanctions imposed by OFAC or any other governmental entity.
12.9. Amendments and Waivers.
No modification, addition or deletion, or waiver of any rights under these Terms will be binding on a Party unless made in a written agreement executed by a duly authorized representative of each Party; provided that the foregoing shall not preclude the binding effect of any modifications to the Terms by DataEndure which solely reflect newly added Other DataEndure Products and Services, or modifications which augment Customer’s rights under these Terms. No failure or delay (in whole or in part) on the part of a Party to exercise any right or remedy hereunder will operate as a waiver thereof or effect any other right or remedy, and no waiver of one breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default. All rights and remedies hereunder are cumulative and are not exclusive of any other rights or remedies provided hereunder or by law.
Any legal notice (whether these Terms expressly state “written notice” or “notice”) or communication required or permitted to be given hereunder must be in writing, signed or authorized by the Party giving notice, and may be delivered by hand, deposited with an overnight courier, sent by confirmed email, confirmed facsimile, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving Party as identified in the signature box below, on a valid Order, in the case of DataEndure to email@example.com, or at such other address as may hereafter be furnished in writing by either Party to the other Party. Such notice will be deemed to have been given as of the date it is delivered. Notice is effective on the earlier of 5 days from being deposited for delivery or the date on the confirmed facsimile, confirmed email or courier receipt.
If any provision of these Terms is deemed invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other provisions of these Terms will nonetheless remain in full force and effect so long as the economic and legal substance of the transactions contemplated by these Terms is not affected in any manner adverse to any Party. Upon such determination that any provision is invalid, illegal, or incapable of being enforced, the Parties will negotiate in good faith to modify these Terms so as to affect the original intent of the Parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled.
12.12. Force Majeure.
Except for payments due under these Terms, neither Party will be responsible for any failure to perform or delay attributable in whole or in part to any cause beyond its reasonable control, including but not limited to acts of God (fire, storm, floods, earthquakes, etc.), civil disturbances, disruption of telecommunications, disruption of power or other essential services, interruption or termination of service provided by any service providers being used by Us, labor disturbances, vandalism, cable cut, computer viruses or other similar occurrences, or any malicious or unlawful acts of any third party (a “Force Majeure Event”).