Terms of Service
These Terms of Service (these “Terms”) govern the Services to be provided by Threat X, Inc. (“Threat X”) to the Customer identified in the proposal, order, statement of work, online order form or similar document agreed to by Threat X and Customer for the Services (the “Order”). These Terms and the Order are referred to collectively as this “Agreement”. In the event of a conflict between these Terms and the Order, these Terms shall control unless the conflicting term of the Order expressly states otherwise.
If Customer has signed a separate written agreement with Threat X for the provision of the Services (“Services Agreement”), the terms of the separate Services Agreement will supersede and replace these Terms.
Threat X and Customer agree as follows:
1.1 “Dashboard” means Threat X’s proprietary web application which enables End Users to access, control, and monitor the Services.
1.2 “Documentation” means the specifications and functional requirements published by Threat X for the Services and provided to Customer in either electronic, online help files or hard copy format, but specifically excluding any marketing, promotional, and similar materials.
1.3 “End User” means Customer’s officers, employees, directors, independent contractors and other individuals who are authorized by Customer to access and use the Dashboard on Customer’s behalf in connection with the operation of the Services.
1.4 “Intellectual Property Rights” means any and all worldwide intellectual property rights, including copyrights, trademarks, service marks, trade secrets, know how, inventions, patents, patent applications, moral rights and other proprietary rights, whether registered or unregistered.
1.5 “Purchased Services” mean those Services paid for in full which are not offered under a Trial.
1.6 “Services” means those cloud-based security and related services ordered by Customer pursuant to an Order, which may include, without limitation, access to the Dashboard and access to the Software Client.
1.7 “Software Client” means any software programs provided by Threat X to Customer which enables Customer to access the Services, along with any modified, updated, or enhanced versions thereof.
1.8 “Traffic Data” means any metadata, web traffic, or similar data made available to Threat X in connection with the Services.
1.9 “Trial Services” mean those Services provided under a Trial.
1.10 “Trial” means the provision of Services on a trial basis or for evaluation purposes as specified in an Order.
2.1 Delivery of the Services. Subject to the terms and conditions of this Agreement, Threat X shall provide the Services to Customer pursuant to this Agreement during the applicable Service Term (defined below). The Services are made available through the Internet. Customer is solely responsible for acquiring, installing and maintaining all connectivity equipment, Internet and network connections, hardware, software and other equipment necessary to access the and use the Services.
2.2 Dashboard. If access to the Dashboard is included in the Services set forth in an Order, then subject to the terms of this Agreement, Threat X grants to Customer a personal, limited, non-exclusive, non-transferable, and non-sublicensable right to permit End Users to access and use the Dashboard in accordance with the Documentation solely in order to monitor and operate the Services. Each End User will be assigned a unique user identification name and password (“User ID”) for access to the Dashboard. Customer is responsible for ensuring the security and confidentiality of its User IDs and will not permit any User ID to be shared with any person. Customer is responsible for any activities or actions taken under its User IDs, whether or not Customer has authorized such activities or actions. Threat X reserves the right to require Customer to change User ID passwords for any reason at any time, and upon reasonable written notice. If Customer becomes aware of any unauthorized access to or use of the Dashboard or unauthorized use of any User ID, Customer shall immediately notify Threat X at firstname.lastname@example.org. Threat X is not liable for any loss or damage arising from Customer failure to comply with the above requirements. Customer shall: (a)provide to Threat X a list of personnel authorized to access the Dashboard, and (b)communicate to Threat X a list of authorized personnel who can authorize new and changed access to the Services.
2.3 Software Client. Threat X may provide Customer with access to a Software Client in order to access and use the Services. In such cases, and subject to the terms of this Agreement, Threat X grants to Customer, during the Service Term, a personal, limited, revocable, non-exclusive, non-transferable, and non-sublicensable license to download, reproduce, install and use the Software Client in object code form solely in order to enable the Services as permitted herein. Threat X may automatically update or upgrade the Software Client from time to time.
2.4 Support; Uptime. Threat X will provide reasonable technical support for the Purchased Services in accordance with the level of support indicated in the applicable Order. If Customer wishes to obtain additional support or consulting services concerning the Services, such services may be provided in Threat X’s discretion on a time and materials basis at Threat X’s then-current rates, or as otherwise agreed by the parties. Threat X may, but has no obligation to, provide technical support for any Services offered in connection with a Trial. Threat X will use commercially reasonable efforts to maintain uptime for the Services (excluding the Dashboard) of at least 99.999% of each calendar month of the Services Term and uptime for the Dashboard of at least 99.9% of each calendar month. Threat X agrees to credit Customer 1/10th of monthly service fee if the Service Terms and uptime for the Dashboard does not meet at least 99.9% of each calendar month. Service interruptions due to (a)scheduled maintenance, (b)issues arising from misuse of the Service by Customer, or (c)events beyond Threat X’s reasonable control, shall not be deemed downtime for purposes of the foregoing calculations.
3. Trial Services.
3.1 Trials. An Order may specify that that the Services are to be provided under a Trial. Threat X reserves the right, in its absolute discretion, to determine Customer’s eligibility for a Trial, and, subject to applicable laws, to withdraw or to modify a Trial at any time without prior notice and without liability. The Order will specify the duration of the Trial (the “Trial Period”). Unless otherwise agreed by the parties in writing, the Trial Period for each Trial is fifteen (15) days. Either party may terminate the Trial at any time upon notice to the other party.
3.2 Trial Disclaimer. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, TRIAL SERVICES ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND. ANY DATA ENTERED OR COLLECTED IN CONNECTION WITH THE TRIAL SERVICES WILL BE PERMANENTLY LOST UNLESS THE TRIAL CONVERTS TO PURCHASED SERVICES PRIOR TO THE EXPIRATION OR TERMINATION OF THE TRIAL PERIOD. DATA ENTERED OR COLLECTED IN CONNECTION WITH TRIAL SERVICES CANNOT BE EXPORTED.
3.3 Conversion to Purchased Service. IF THE PARTIES AGREE IN WRITING THAT A TRIAL WILL AUTOMATICALLY CONVERT TO PURCHASED SERVICES AT THE END OF THE TRIAL PERIOD, THEN UNLESS CUSTOMER PROVIDES NOTICE OF ITS INTENT NOT TO PROCEED WITH PURCHASED SERVICE PRIOR TO THE EXPIRATION OF THE TRIAL PERIOD, UPON THE EXPIRATION OF THE TRIAL PERIOD, THREAT X WILL CONTINUE TO PROVIDE THE SERVICES AND WILL CHARGE CUSTOMER THE FEES SET FORTH IN THE ORDER OR, IF NO FEES ARE SET FORTH IN THE ORDER, THREAT X WILL CHARGE ITS THEN-CURRENT RATES.
4. Customer Obligations. In addition to any other obligations set forth in this Agreement, Customer: (a) is solely responsible for the accuracy, quality and legality of the Traffic Data and the means by which Customer acquires its Traffic Data, including any personally identifiable information of Customer’s customers, employees or other users; (b) shall use the Dashboard and any results from the Services only in accordance with this Agreement and applicable laws and government regulations; (c) is responsible for its officers’, employees’, directors’, independent contractors’, End Users’, and its other personnel’s compliance with this Agreement; (d) respond to DDoS notification from Threat X within four hours; (e) whitelist all Threat X Sensor Network addresses within two (2) business days of notification by Threat X; (f) notify Threat X within one (1) business day when a security incident is identified that may impact the Services; and (g) restrict physical and logical access to any Software Client used or provided by Threat X in connection with the Services. In addition, Customer shall designate a point of contact who shall be authorized to make decisions on behalf of Customer (“Designated Contact”). Threat X shall be permitted to rely upon the direction and authorizations provided by the Designated Contact. Customer may update the Designated Contact upon notice to Threat X.
5. Proprietary Rights and Restrictions on Use.
5.1 Ownership of the Services. The Services (including the Dashboard) and the Software Client, any updates, enhancements, or modifications to the foregoing, and all worldwide Intellectual Property Rights therein, are the exclusive property of Threat X and its licensors. All rights not expressly granted to Customer in this Agreement are reserved by Threat X.
5.2 Traffic Data; License. As between Threat X and Customer, Customer is the sole owner of Customer’s Traffic Data and all Intellectual Property Rights therein. Customer acknowledges and agrees that Threat X requires access to the Traffic Data in order to provide the Services. Customer hereby grants to Threat X a worldwide, non-exclusive, right and license to host, copy, transmit, display, de-encrypt and otherwise use the Traffic Data for the limited purpose of performing Threat X obligations hereunder for the benefit of Customer. If Threat X retains a third party service provider to assist in performing the Services, Customer agrees that Threat X may permit such service providers to host, copy, transmit, display, de-encrypt and otherwise use the Traffic Data in connection with the provision of the Services.
5.3 Aggregated Intelligence. Notwithstanding the foregoing, Threat X reserves the rights to (a) collect information about Customer’s use of the Services, (b) analyze Customer’s Traffic Data using Threat X’s threat detection tools, and (c) aggregate such information and analysis (on an anonymous basis that does not attribute such information or analysis to Customer) with other security and threat intelligence data and information (subsections (a), (b) and (c) collectively, the “Aggregated Intelligence”). Threat X will provide Aggregated Intelligence to Customer at Customer’s reasonable request. Customer acknowledges and agrees that Aggregated Intelligence does not constitute Customer’s Confidential Information (as defined below) and may be shared by Threat X with third parties. Customer hereby grants to Threat X a limited, non-exclusive, royalty-free license, perpetual, and irrevocable right and license to use and reproduce Customer’s Traffic Data for the purposes of creating, using and exploiting Aggregated Intelligence. All right, title, and interest in and to the Aggregated Intelligence shall be owned solely by Threat X.
5.4 Restrictions. Except as expressly permitted in this Agreement or as otherwise authorized by Threat X in writing, Customer will not, and will not permit any End User to (a)modify, adapt, alter, translate, or create derivative works from the Services or the Software Client; (b)sublicense, lease, rent, loan, sell, distribute, make available or otherwise transfer the Services or the Software Client or access to Dashboard to any third party; (c)reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Services or the Software Client in order to (i) build a competitive product or service, (ii) build a product using similar ideas, features, functions or graphics of the Service, or (iii) copy any ideas, features, functions or graphics of the Services; (d) interfere in any manner with the operation of the Services or the Software Client; (e) remove, alter, or obscure any proprietary notices (including copyright notices) of Threat X or its licensors displayed in connection with the Services or the Software Client; or (f)otherwise use the Services or the Software Client except as expressly allowed under this Agreement.
6. Fees and Payment.
6.1 Fees. Customer shall pay all fees specified in the Orders. Except as otherwise specified herein or in an Order: (1) fees are based on Services purchased and not actual usage, (2) payment obligations are noncancelable and fees paid are non-refundable, unless cancelled per the provisions in this Agreement, and (3) quantities purchased cannot be decreased during the then-current Initial Service Term or Renewal Service Term (as applicable). Threat X may adjust the fees for Services under an Order by providing notice to Customer at least sixty (60) days prior to the expiration of the then-current Service Term.
6.2 Bandwidth True-Up. The Order sets forth Threat X’s good faith estimate of Customer’s required bandwidth usage when using the Services in accordance with this Agreement (“Estimated Bandwidth”). Threat X will periodically calculate Customer’s actual bandwidth usage by calculating Customer’s average bandwidth usage over the preceding period (“Actual Bandwidth”). Such calculation shall be made in good faith and Threat X’s calculation of Actual Bandwidth shall be binding, provided that Threat X shall provide supporting documentation for its calculation of Actual Bandwidth upon request (“Bandwidth True-Up”). In the event that Actual Bandwidth exceeds Estimated Bandwidth, Threat X may invoice Customer for the additional fees that would have been payable for such period based on Actual Bandwidth. Thereafter and for the remainder of the Service Term, the Estimated Bandwidth will be increased to align with Actual Bandwidth and fees payable for the Services shall be adjusted accordingly.
6.3 Invoicing and Payment. Threat X will invoice Customer in advance based on Estimated Bandwidth, in arrears for any Bandwidth True-Up, and otherwise in accordance with the relevant Order. Unless otherwise stated in the Order, invoiced charges are due within thirty (30) days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to Threat X and notifying Threat X of any changes to such information.
6.4 Late Payment Remedies. If any invoiced amount is not received by Threat X by the due date, then without limiting any other rights or remedies, then those charges will accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower. If any amount owing by Customer under this Agreement is thirty (30) or more days overdue, Threat X may, without limiting its other rights and remedies, suspend the Services to Customer until such amounts are paid in full. Threat X will provide at least ten (10) days’ notice prior to suspending the Services for late payment. Customer shall be responsible for all costs and expenses incurred by Threat X in connection with its efforts to collect amounts due hereunder.
6.5 Taxes. All fees and other amounts payable by Customer do not include any taxes, levies, duties or similar governmental assessments of any nature, including without limitation value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever, but specifically excluding any taxes based on Threat X’s income, property or employees (collectively, “Taxes”). Customer is responsible for paying all Taxes, and any related penalties and interest, associated with the fees and Services. Customer shall make all payments to Threat X free and clear of, and without reduction for, any Taxes. If Threat X has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, Threat X will invoice Customer and Customer shall pay such amounts unless Customer provides Threat X with a valid tax exemption certificate authorized by the appropriate taxing authority. Customer shall indemnify and hold Threat X harmless from any claims, losses, costs (including reasonable attorneys’ fees), damages or liabilities arising out of or relating to Customer’s failure to pay any Taxes. We are solely responsible for taxes assessable against us based on our income, property and employees.
6.6 Purchase Orders. If Customer requires the use of a purchase order or purchase order number, Customer (a) must provide the purchase order number at the time of purchase and (b) agrees that any terms and conditions on a Customer purchase order will not apply to this Agreement and are null and void.
7.1 Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
7.2 Threat X Warranties. Threat X warrants that during the Service Term: (a) the Purchased Services shall perform materially in accordance with the applicable Documentation, and (b) Threat X shall not materially decrease the functionality of the Purchased Services. Threat X’s sole obligation and Customer’s exclusive remedy for any claim for breach of warranty under this Agreement is for Threat X to modify the Purchased Services to conform with the applicable warranty or, at Threat X’s option, to terminate the applicable Order and provide a refund of any amounts paid by Customer for the period falling after the effective date of such termination. Customer understands and agrees that the foregoing warranty does not apply to any Services provided under a Trial.
7.3 By Customer. Customer represents, to Threat X that: (a) Customer will use the Services only in compliance with Threat X’s standard published policies then in effect and all applicable laws and regulations, (b) Customer has the necessary rights and licenses required to provide its Traffic Data to Threat X in connection with use of the Services, (c) Customer has obtained, from each of its own customers, employees, contractors, and other End Users, appropriate and informed prior consent to the processing of their personal data by Threat X for purposes of providing the Services, and (d) Customer’s provision of Traffic Data to Threat X does not violate any intellectual property or privacy rights of third parties, confidential relationships, contractual obligations or laws. Without limiting the generality of the foregoing, Customer shall provide all notices to, and obtain any consents from, any data subject as required by any applicable law, rule or regulation in connection with the processing of any personally identifiable information of such data subjects via the Services by Threat X and/or by Customer.
7.4 Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THREAT X HEREBY DISCLAIMS TO THE MAXIMUM AMOUNT PERMITTED BY LAW ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY REGARDING THE SERVICES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. CUSTOMER IS RESPONSIBLE FOR MAINTAINING AND BACKING UP ANY STORED DATA. CUSTOMER’S USE OF THE SERVICES IS AT CUSTOMER’S OWN RISK. THREAT X MAKES NO WARRANTY REGARDING RESULTS THAT MAY BE OBTAINED FROM CUSTOMER’S USE OF THE SERVICES. CUSTOMER ACKNOWLEDGES THAT THREAT X DOES NOT MAKE ANY GUARANTEE, WARRANTY OR OTHER ASSURANCE THAT CUSTOMER WILL NOT BE HACKED OR OTHERWISE SUBJECTED TO SECURITY THREATS. EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY PROVIDED IN SECTION 7.2, THREAT X DOES NOT MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND THREAT X SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY COURSE OF DEALING OR COURSE OF PERFORMANCE OR ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
8.1 Definition. “Confidential Information” means the terms and conditions of this Agreement and all information related to a party’s business, financial affairs or operations, including but not limited to information related to business plans, technology, source code, product or service development plans, pricing, techniques and methods, which is either marked or identified as confidential or which the receiving party knew or reasonably should have known, under the circumstances, was confidential. Threat X’s Confidential Information includes the Services and its pricing. Customer’s Confidential Information includes the Traffic Data.
8.2 Protection. The party receiving Confidential Information (“Receiving Party”) from the other party (“Disclosing Party”) will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
8.3 Exceptions. The Receiving Party’s obligations under Section 8.1 with respect to any Confidential Information of the Disclosing Party will terminate if and when the Receiving Party can document that such information: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) is independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party may disclose Confidential Information of the Disclosing Party to the extent that such disclosure is: (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure in writing prior to making such disclosure and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
8.4 Return of Information. Except as otherwise expressly provided in this Agreement, the Receiving Party will return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party or upon the expiration or termination of this Agreement, other than any such information that Threat X is required by law to retain. Upon the request of the Disclosing Party, the Receiving Party will certify in a writing signed by an officer of the Receiving Party that it has fully complied with its obligations under this Section8.4.
8.5 Publicity and Public Evaluation. Customer shall not, without Threat X’s prior written consent, publish or disclose to any third party an evaluation of the Service. Threat X may, without Customer’s prior consent, display Customer’s name and/or logo on any list of its customers.
9. Term and Termination.
9.1 Term. The term of this Agreement shall commence on the Effective Date and shall continue for the period specified in the Order (the “Initial Service Term”). Thereafter, unless specified otherwise in the Order, this Agreement will automatically renew for additional one (1) year periods (each a “Renewal Service Term”) unless a party provides written notice of its intent to not renew at least thirty (30) days prior to the expiration of the then-current Initial Service Term or Renewal Service Term. The Initial Service Term and each Renewal Service Term are referred to collectively as the “Service Term”).
9.2 Termination. Either party may terminate this Agreement if the other party breaches any material provision of this Agreement and does not cure such breach within fifteen (15) days after receiving written notice thereof.
9.3 Effects of Termination. Upon termination or expiration of this Agreement for any reason, any amounts owed to Threat X under this Agreement before such termination or expiration will be immediately due and payable, all rights granted by Threat X to Customer in this Agreement will immediately cease to exist and Customer must discontinue all use of the Services, return to Threat X or destroy all copies of Threat X Confidential Information in Customer’s possession or control, and remove and destroy any copies of the Software Client in its possession or control. Upon termination or expiration of any Services that require DNS routing, Customer shall have a period of fifteen (15) days to reroute traffic back to its IP address. Customer solely responsible for such rerouting and Threat X, its partners, and suppliers shall have no liability for Customer’s failure to do so. Sections 1, 5, 7, 8, 9.3, 9.4, 10, 11, and 12 together with any accrued payment obligations, will survive expiration or termination of this Agreement for any reason.
9.4 Traffic Data Upon Termination. Due to the size and volume of Traffic Data transmitted to and stored with Threat X, Threat X cannot return or make the Traffic Data available to Customer upon the termination or expiration of this Agreement. Therefore, Threat X will have no obligation to maintain or provide Traffic Data to Customer upon the termination or expiration of this Agreement, except that Threat X will continue to maintain its confidentiality in accordance with Section 8. Within thirty (30) days after the effective date of termination or expiration of this Agreement, Threat X will delete or destroy Customer’s Traffic Data in its systems or otherwise in its possession or control as provided in the Documentation for the Services, unless legally prohibited.
10.1 By Customer. Customer will defend Threat X, its directors, officers, employees, and contractors (“Threat X Indemnitees”) from and against any third party claim brought against a Threat X Indemnitee which arises in connection with: (a) the Traffic Data or Threat X’s use thereof as permitted in this Agreement, (b) Customer’s use of the Services in violation of this Agreement; or (c) End Users’ use of the Services in violation of this Agreement (each a “Threat X Claim”). Customer will pay those costs, expenses (including reasonable attorney’s fees), damages, costs of settlement, and other losses (“Losses”) incurred or suffered by Threat X in connection with any Threat X Claim.
10.2 By Threat X. Threat X will defend Customer, its directors, officers, employees, and contractors (“Customer Indemnitees”) from and against any third party claim brought against a Customer Indemnitee alleging that the Purchased Services infringe upon or misappropriate any United States patent or copyright (“Customer Claim”). Threat X will pay those Losses incurred or suffered by Customer in connection with any such Customer Claim. In no event will Threat X have any obligations or liability under this Section arising from: (a) use of any Services in a modified form or in combination with materials not furnished by Threat X or (b) any content, information, or data provided by Customer, End Users, or other third parties. Threat X’s defense and indemnity obligations in this Section are Threat X’s sole obligations and Customer’s sole and exclusive remedy for any claim, suit, or action related to or arising from an infringement claim.
10.3 Possible Infringement. If Threat X believes the Services infringe or may be alleged to infringe a third party’s Intellectual Property Rights, then Threat X may: (a) obtain the right for Customer, at Threat X’s expense, to continue using the Services; (b) provide a non-infringing functionally equivalent replacement; or (c) modify the Services so that they no longer infringe. If Threat X does not believe the options described in this Section are commercially reasonable then Threat X may suspend or terminate Customer’s use of the affected Services (with a pro-rata refund of prepaid fees for the Services).
10.4 Indemnification Procedures. The party seeking indemnification will promptly notify the other party of the claim and cooperate with the other party in defending the claim. The indemnifying party will have full control and authority over the defense, except that: (a) any settlement requiring the party seeking indemnification to admit liability requires prior written consent, not to be unreasonably withheld or delayed and (b) the other party may join in the defense with its own counsel at its own expense.
11. Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY DAMAGES ARISING FROM LOST DATA, LOSS OF TRAFFIC DATA, OR LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EITHER PARTY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE MAXIMUM OF TWELVE (12) MONTHS’ FEES PAID BY CUSTOMER FOR THE SERVICES.
12.1 Non-Exclusive. This Agreement shall not be construed to limit or prohibit Threat X in any manner or fashion in providing products and/or services of any type of nature including those identical to the Services to any other customer in its sole discretion.
12.2 Assignment. Neither party may assign or transfer, by operation of law or otherwise, any of its rights under this Agreement (including the license rights granted to Customer to access the Service) to any third party without the other party’s prior written consent, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, either party may assign its rights and obligations under this Agreement to a parent, affiliate, or subsidiary, or to a successor, whether by way of merger, sale of all or substantially all of its assets or otherwise. Any attempted assignment of this Agreement not in accordance with this Section shall be null and void.
12.3 Relationship of Parties. The relationship of the parties established under this Agreement is that of independent contractors and neither party is a partner, employee, agent or joint venture partner of or with the other, and neither party has the right or authority to assume or create any obligation on behalf of the other party.
12.4 Force Majeure. Except for any payment obligations, neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder for any cause which is beyond the reasonable control of such party.
12.5 Notices. All notices, consents, and approvals under this Agreement must be delivered in writing by courier or internationally recognized overnight delivery service, or by certified or registered mail (postage prepaid and return receipt requested) and are deemed given when received. Notices to Customer may also be sent to the email address of the Designated Contact and will be deemed given when sent. Customer is responsible notifying Threat X of any change in its contact information. In the event that the last e-mail address Customer provided is not valid, or for any reason is not capable of delivering to Customer any notices required/permitted by this Agreement, Threat X’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. Notices to Threat X must be sent to Threat X, Inc., 363 Centennial Parwkway, Suite 150, Louisville, CO 80027 with a copy to the Legal Department (email@example.com).
12.6 Governing Law. This Agreement will be governed by and interpreted in accordance with the laws of Colorado, without reference to its choice of laws rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
12.7 Arbitration. The parties shall resolve any action brought by any party under or in relation to this Agreement, including to interpret or enforce any provision of this Agreement, by final and binding arbitration under the then-existing arbitration rules and procedures of JAMS (the “Administrator”) regarding commercial or business disputes; however, any party may seek a temporary or permanent injunction in connection with this Agreement in any court having competent jurisdiction. There will be one arbitrator, to be appointed by the Administrator, in any such action unless the amount in dispute exceeds the equivalent of U.S. $1,000,000, in which event there will be three arbitrators. When three arbitrators are involved, (a) each party shall appoint one arbitrator from a list provided by the Administrator, (b) those two arbitrators are to appoint the third within thirty days, and (c) the third arbitrator will be the Chairman. The arbitration hearing will be held in Denver, Colorado and will be conducted in English. Any arbitration will be limited to the dispute between Threat X and Customer. Unless otherwise agreed by the parties in writing, an arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to Services or this Agreement must be brought, if at all, within one year from the accrual of the claim or cause of action or be forever barred.
12.8 Injunctive Relief. Each party acknowledges that a breach or threatened breach of Section 5.4 or Section 8 would cause irreparable harm to the non-breaching party, the extent of which would be difficult to ascertain. Accordingly, each party agrees that, in addition to any other remedies to which a party may be legally entitled, the non-breaching party shall have the right to seek immediate injunctive or other equitable relief in the event of a breach of Section 5.4 or Section 8 by the other party or any of its employees or agents.
12.9 Export Control. Customer may not use, export, import or transfer the Services of Software Client or any results thereof except as authorized by U.S. law, the laws of the jurisdiction in which Customer obtained the Services and any other applicable laws. In particular, but without limitation, the Services and any results thereof may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone of the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Services, Customer represents and warrants that (i) Customer is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) Customer is not listed on any U.S. Government list of prohibited or restricted parties. Customer acknowledges and agrees that products, services or technology provided by Threat X are subject to the export control laws and regulations of the United States. Customer shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer the Services, or any portion thereof or result therefrom, either directly or indirectly, to any country in violation of such laws and regulations. Customer shall indemnify and hold Threat X harmless from and against its violation of this Section and any export laws and regulations.
12.10 Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
12.11 Severability. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
12.12 Government Entities. If Customer is a U.S. government entity, Customer acknowledges that any Services and Software Clients provided are “Commercial Items” as defined at 48 C.F.R. 2.101, and are being provided as commercial computer software subject to the restricted rights described in 48 C.F.R. 2.101 and 12.212.
12.13 Modification. Threat X may modify these Terms for any Renewal Term by providing notice at least sixty (60) days prior to the commencement of such Renewal Term. Modifications become effective immediately upon the commencement of the Renewal Term.
12.14 Entire Agreement. This Agreement (including all exhibits and attachments) constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral regarding such subject matter.