insidePacket End User License Agreement
THIS END USER LICENSE AGREEMENT (THE “AGREEMENT”) GOVERNS THE USE OF INSIDEPACKET’S SECURITY SOFTWARE PRODUCT, THAT MAY OFFER multi cloud services (THE “PRODUCT”, AS SPECIFIED IN THE ORDER FORM PROVIDED TO YOU).
THIS AGREEMENT CONSTITUTES A LEGALLY BINDING CONTRACT BETWEEN YOU – A LEGAL ENTITY (A COMPANY, A PARTNERSHIP, OR ANY OTHER LEGAL ENTITY, HEREINAFTER: “LICENSEE”), IDENTIFIED IN THE ORDER FORM (AS DEFINED BELOW), AND ANY INDIVIDUAL (EMPLOYEE OR OTHERWISE, HEREINAFTER: “USER”) DESIGNATED BY THE LICENSEE TO USE THE PRODUCT FOR THE BENEFIT OF THE LICENSEE AND INSIDEPACKET INC. (“WE”, “US”, “OUR”, “LICENSOR” OR “INSIDEPACKET”). THE TERMS “YOU” AND “YOUR” WILL APPLY COLLECTIVELY TO SUCH LICENSEE AND SUCH USER, UNLESS OTHERWISE EVIDENT FROM THE CONTEXT.
If You use a Product for proof of concept, beta testing, trial, evaluation or other similar purpose (“Evaluations”), You may do so for thirty (30) days unless InsidePacket issues an extension. InsidePacket reserves the right to terminate Evaluations at any time. Upon expiration or termination of the Evaluation, You shall cease using the Product(s) provided for Evaluation. PRODUCTS PROVIDED FOR EVALUATIONS ARE PROVIDED “AS IS”, FOR NON-PRODUCTION USE, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, INSIDEPACKET DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY AGAINST INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
If you are acting on behalf of the Licensee to acquire a right to use the Product, then you represent and warrant that you are duly authorized to enter into this Agreement on behalf of the Licensee and that you have the proper authority to legally bind the Licensee, by this Agreement.
You may not use the Product if you are under 18 years of age.
You understand that by performing any of the following: (a) clicking the “I Agree” button, (b) installing the Product, (c) issuing a purchase order for a subscription to the Product on the basis of the Order Form, (d) otherwise assenting to this Agreement, or (e) using the Product in any way – you are executing this Agreement and you are agreeing to be bound by its terms, in the same way that a paper contract binds you. This Agreement limits our liability and obligations to you, to the terms set forth herein. If you do not agree to this Agreement in its entirety, then you may not use the Product in any way.
1.1. “Bug Fix” means software code in respect of the Product, intended to correct, repair, remove or workaround an error, fault or malfunction in the Product.
1.2. “Documentation” means all explanatory and descriptive materials associated with the Product, such as the user guide, technical instructions and FAQs, as InsidePacket may provide from time to time.
1.3. “Fees” means the fees, charges and payments set forth in the Order Form or as otherwise separately conveyed to you in writing by InsidePacket or the Reseller.
1.4. “Marks” means trademarks, Product marks and logos, whether registered or not.
1.5. “Licensee Data” means any proprietary, confidential and/or personal data stored in the Licensee’s IT systems as well as any data processed by the Product installed on the Licensee’s IT systems, excluding Performance Information.
1.6. “Performance Information” means information about the Product’s performance, bugs, errors and malfunctions, when installed and run on the Licensee’s IT systems.
1.7. “Order Form” means the proposal or price quote issued by Reseller or InsidePacket (as applicable), prescribing, among others, the Licensee’s details and the Fees applicable to this Agreement. Such Order Form is incorporated by reference hereto and constitutes an integral part hereof.
1.8. “Reseller” means the individual or legal entity duly authorized by InsidePacket to market, promote and distribute the Product to you.
1.9. “Term” means the period prescribed in sub-section 7.1 below.
1.10. “Updates” means software code in respect of the Product, intended to improve, enhance or add Product performance or functionality.
2. Interpretation. The term “including” means including, but not limited to, and without limitation, to the generality of the preceding phrase. All examples in the Agreement and all “i.e.” and “such as” notations indicate an illustration, by way of example only, of the preceding phrase, without limiting its generality. Terms defined in the Order Form shall have the same meaning as defined there.
3. Use of the Product
3.1. Subject to the terms of this Agreement and to the Product configuration, applicable usage metrics or parameters as set forth in the Order Form, Licensor grants you a worldwide, limited, non-exclusive, revocable, non-transferable, non-sublicense-able and non-perpetual right, during the Term, to use the Product, only for your internal security activities.
3.2. We highly encourage you to provide us active feedback on the Product, including all pertinent information at your disposal concerning bugs, errors and malfunctions in the Product, performance of the Product, its compatibility and interoperability (collectively, “Feedback”). Should you provide such Feedback, you hereby grant us a royalty-free, free-of-charge, perpetual, worldwide, irrevocable, transferrable and sublicense-able right and license in and to the Feedback, to make any use of the Feedback, including commercial use, for any purpose we deem appropriate. You will not be entitled to any remuneration from us for such assignment to us or for our use of such Feedback.
4. User account and access
4.1. Your access to the Product is authenticated by a username and password. You are solely responsible for maintaining the confidentiality of your account username and password. We recommend that you change your password periodically. You assume full responsibility for your failure to maintain your account username and password confidential and for all consequences resulting therefrom.
4.2. It is the Licensee’s sole and exclusive responsibility to log-in to its account on the Product frequently, and at least once per week, to thoroughly review its account status, check for any alerts or warnings issued by the Product and properly address and handle such alerts and warnings.
4.3. InsidePacket will not be responsible for any damage caused to the Licensee resulting from the Licensee’s failure to follow sections 4.1 and 4.2 above.
5.1. In consideration of the rights granted to you under this Agreement, you will pay all one-time Fees and recurring subscription Fees, during the Term, in accordance with the subscription Fees as set forth in the Order Form. If you concluded the transaction with us, then you shall remit all such Fees to us. If you concluded the transaction with the Reseller, then you shall remit all such Fees to the Reseller. Each subscription cycle and its then-current applicable Fees shall automatically renew, unless this Agreement is terminated in accordance with section 7 below. All Fees are quoted in US Dollars, unless expressly stated otherwise.
5.2. Applicable periodic subscription Fees are due on the first business day of the subscription cycle. Applicable one-time Fees are due upon execution of this Agreement.
5.3. All amounts payable to InsidePacket or the Reseller (as applicable) pursuant to this Agreement, are exclusive of any excise, sales tax, VAT, withholding tax or other governmental charges or transaction charges. The Licensee is responsible for the payment of all such applicable taxes or charges and will remit grossed-up payments, to InsidePacket or the Reseller (as applicable), to include all such taxes and transaction charges, except for any taxes based solely on the net income of InsidePacket or the Reseller (as applicable).
5.4. All Fees paid by the Licensee are non-refundable, and all payment obligations for any past and then-current subscription cycles are non-cancelable. The Licensee is responsible for paying all applicable Fees, whether or not it has actively used or benefited from the Product.
5.5. Without derogating from any other rights and remedies available to us or the Reseller under applicable law, overdue Fees will accrue interest at the rate of 0.75% per month or part thereof, cumulative monthly from the due date until the date of actual payment. The Licensee agrees to reimburse us or the Reseller (as applicable) for all legal costs and attorney fees incurred in the course of collecting Fees overdue by the Licensee.
5.6. Failure to settle any overdue Fee within 30 calendar days of its original due date will constitute a material breach of the Agreement.
6.1. You may not modify, make derivative works of, disassemble, de-compile or reverse engineer any part of the Product software code.
6.2. Except as specifically authorized by InsidePacket in writing, you may not (and may not allow others to) assign, copy, distribute, redistribute, display publicly, sublicense, decompile, disassemble, reduce to human readable form, execute publicly, make available to the public, adapt, make commercial use of, process, translate, sell, resell, lend, lease, rent, reverse engineer, modify or create derivative works of, the Product, or any part thereof, in any way, or by any means.
6.3. You may not access the Product in order to develop, or create, or permit others to develop or create, a similar or competitive product or service.
6.4. You may not engage in or attempt to engage in: (i) any form of scanning, scraping, probing or hacking the Product; (ii) breaching the security of the Product, or publicly disclosing any security vulnerabilities therein; (iii) interfering with, circumventing, manipulating, impairing or disrupting the operation, or the functionality of the Product; (iv) working around or circumventing any technical limitations in the Product; or (v) using any tool to enable features or functionalities that are otherwise disabled, inaccessible or undocumented in the Product.
6.5. Your use shall not exceed the number of subscriptions purchased as specified in the Order Form.
6.6. YOU MAY NOT USE THE PRODUCT FOR ANY ACTIVITY THAT CONSTITUTES, OR ENCOURAGES CONDUCT THAT WOULD CONSTITUTE, A CRIMINAL OFFENSE, GIVE RISE TO CIVIL LIABILITY OR OTHERWISE VIOLATE ANY APPLICABLE LAW, INCLUDING ANY APPLICABLE LAWS AND REGULATIONS GOVERNING PRIVACY AND EXPORT CONTROL.
7. Term and Termination
7.1. This Agreement shall be effective from the commencement date and for the subscription cycle as specified in the Order Form, and shall continue until terminated by either party, as set forth in this section 7.
7.2. Either party may terminate this Agreement: (a) immediately upon written notice to the other party, if the other party materially breaches this Agreement; (b) upon a 30 day, prior, written notice of breach, to the other party, if the other party non-materially breaches this Agreement, and fails to cure the breach, within the prior notice period; (c) if the terminating party is required to do so by law; or (d) if the other party becomes or is declared insolvent or bankrupt, becomes subject to any proceeding related to its liquidation or insolvency (whether voluntary or involuntary) which proceedings are not dismissed within sixty (60) days of their commencement, makes an assignment for the benefit of creditors, or takes or is subject to any such other comparable action in any relevant jurisdiction.
7.3. Either party may terminate this Agreement upon the end of your then-current subscription cycle, by sending the other party a written notice of termination at least 45 days prior to the end of your then-current subscription cycle.
7.4. Upon termination of this Agreement you must: (a) cease any and all use of the Product and cause all other Users of the Licensee to cease any and all use of the Product; and (b) destroy all copies of the Product’s software and Documentation in your possession or control.
7.5. Termination of this Agreement will be in addition to, and not in lieu of, any equitable or other remedies available to the terminating party.
7.6. This Agreement’s provisions that by their nature ought to survive termination, will so survive, including sections 1, 2, 5, 7.4, 7.5, 10 - 27.
8. Product Quality
8.1. We make efforts to have the Product operate properly. However, as it is a Product that relies on network, infrastructure, hardware and software owned and operated by you and third parties, we do not warrant that the Product will operate in an uninterrupted or error-free manner, or that it will always be available, free from errors or omissions, malfunctions, bugs or failures, including, but not limited to, hardware failures, software failures and software communication failures. Such incidents will not be considered a breach of this Agreement.
8.2. Subject to your approval during the Product’s installation, we will collect and use de-identified Performance Information, which does not include information identifying the Licensee or its IT systems, for our internal business purposes of understanding the Product’s performance and analyzing bugs, errors and malfunctions. We will not disclose Performance Information to unrelated third parties. You may, at any time, decline our collection of Performance Information, through the Product’s settings.
9. Support and Maintenance
9.1. During the Term, and subject to the terms and conditions of this Agreement, and your full and timely payment of all applicable Fees, we, either directly or with the assistance of the Reseller or other third party, will provide you technical support for questions, problems and inquiries regarding the Product, pursuant to the support scheme, hours and channels separately conveyed to you (the “SLA”). We and the Reseller (as applicable) will endeavor to respond to support requests within a reasonable time, and provide a reasonable resolution to your question, problem or inquiry.
9.2. Subject to the particulars specified in the SLA, we will endeavor to provide you with Bug Fixes for Product errors, bugs or malfunctions that you report, as soon as practicable for us, and to the extent commercially reasonable, provided we are able to reproduce the error, bug or malfunction in question. You agree to cooperate, and work closely, with InsidePacket and the Reseller (as applicable) to reproduce errors, bugs or malfunctions, including conducting diagnostic or troubleshooting activities, as we reasonably request. The Licensee will cooperate, and work closely with InsidePacket, to reproduce malfunctions, including conducting diagnostic or troubleshooting activities, as InsidePacket reasonably requests.
9.3. We will periodically distribute releases of Bug Fixes and Updates that we make available on “general release” to our customers. We will determine, at our discretion, the frequency and scope of periodic Bug Fixes and Updates, considering, among others, the severity of the errors found or reported, and the magnitude of their effect. We encourage you to install such Bug Fixes and Updates as soon we make them available. Updates relating to the Product’s report templates and security alerts are automatically transmitted from our server and installed in your instance of the Product, periodically as we release them. Once installed: (a) the activation of the Product’s report templates is at your discretion through the Product’s settings; and (b) security alerts are activated by default and you may deactivate them through the Product’s settings. In any event, Bug Fixes and Updates are regarded as part of the Product and are fully subject to the terms and conditions of this Agreement.
10. Intellectual Property. All rights, title and interest, including copyrights, trademarks, trade names, Product Marks, trade secrets and other intellectual property rights, and any goodwill associated therewith, in and to the Product or any part thereof, including computer code, graphic design, layout and the user interfaces of the Product, and all derivatives, improvements and variations thereof, excluding any Licensee Data, are and will remain at all times, owned by, or licensed, to us. Other than what is expressly granted by this Agreement, this Agreement does not grant you any other rights to patents, copyrights, trademarks (whether registered or unregistered), trade names, trade secrets, domain names or any other rights, functions, licenses, or content with respect to, or in connection with, the Product.
11. Open Source. The Product may contain or may be provided in conjunction with open source software, including some or all of those detailed in the Open Source License Notice of Acknowledgments file (“Notice File”) provided to the Licensee and as may be updated from time to time with Product Updates. The Licensee acknowledges that not all open source software detailed in the Notice File provided to the Licensee are necessarily used or provided in the particular version of the Product the Licensee installs and uses. To the extent so indicated by an open source license referenced in such Notice File, the open source software corresponding to such open source license, is licensed directly to the Licensee by its respective licensors, not sublicensed to the Licensee by InsidePacket, and is subject to its respective open source license, not to this Agreement. If and to the extent an open source license detailed in the Notice File requires that this Agreement effectively provide, impose, or incorporate by reference, certain disclaimers, permissions, provisions, prohibitions, restrictions or other terms then such shall be deemed to be imposed, or incorporated by reference into this Agreement, as required, and shall supersede any conflicting provision of this Agreement, solely with respect to the corresponding open source software which is governed by such open source license. If, and to the extent, an open source license detailed in the Notice File requires that the source code of its corresponding open source software be made available to the Licensee, and such source code was not delivered to the Licensee with the Product, then InsidePacket hereby extends a written offer, valid for the period prescribed in such open source license, to obtain a copy of the source code of the corresponding open source software, from InsidePacket. To take up this offer, contact InsidePacket at email@example.com.
12.1. SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND YOUR FULL AND TIMELY PAYMENT TO INSIDEPACKET OF ALL APPLICABLE FEES, INSIDEPACKET WARRANTS TO YOU THAT THE PRODUCT WILL, DURING THE TERM, PERFORM SUBSTANTIALLY IN ACCORDANCE WITH THE DOCUMENTATION. NON-SUBSTANTIAL VARIATIONS OF PERFORMANCE FROM THE DOCUMENTATION DOES NOT ESTABLISH A WARRANTY RIGHT. YOUR EXCLUSIVE REMEDY AND OUR ENTIRE LIABILITY UNDER THIS LIMITED WARRANTY SHALL BE AS FOLLOWS: WE SHALL REPAIR THE PRODUCT, OR PROVIDE A WORKAROUND, TO MAKE IT PERFORM SUBSTANTIALLY IN ACCORDANCE WITH THE DOCUMENTATION, SUBJECT TO OUR SUPPORT AND MAINTENANCE OBLIGATIONS SET FORTH IN SECTION 9 ABOVE.
12.2. THE EXPRESS WARRANTY SET FORTH ABOVE CONSTITUTES THE ONLY WARRANTY WITH RESPECT TO THE PRODUCT. WE MAKE, AND YOU RECEIVE, NO OTHER REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCT. EXCEPT AS SET FORTH ABOVE, WE EXPRESSLY DISCLAIM ANY AND ALL PROMISES, REPRESENTATIONS, AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
12.3. High-Risk Disclaimer. LICENSEE UNDERSTANDS AND AGREES THAT THE PRODUCTS ARE NOT FAULT-TOLERANT AND ARE NOT DESIGNED OR INTENDED FOR USE IN ANY HIGH-RISK OR HAZARDOUS ENVIRONMENT, INCLUDING WITHOUT LIMITATION, THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION, AIR TRAFFIC CONTROL, LIFE SUPPORT MACHINES, WEAPONS SYSTEMS, OR ANY OTHER APPLICATION WHERE THE FAILURE OR MALFUNCTION OF ANY PRODUCT CAN REASONABLY BE EXPECTED TO RESULT IN DEATH, PERSONAL INJURY, SEVERE PROPERTY DAMAGE OR SEVERE ENVIRONMENTAL HARM (A “HIGH RISK ENVIRONMENT”). ACCORDINGLY, (I) LICENSEE SHOULD NOT USE THE PRODUCTS IN A HIGH RISK ENVIRONMENT, (II) ANY USE OF THE PRODUCTS BY LICENSEE IN A HIGH RISK ENVIRONMENT IS AT LICENSEE’S OWN RISK, (III) INSIDEPACKET, ITS AFFILIATES AND SUPPLIERS SHALL NOT BE LIABLE IN ANY WAY FOR USE OF THE PRODUCTS IN A HIGH RISK ENVIRONMENT, AND (IV) INSIDEPACKET MAKES NO WARRANTIES OR ASSURANCES, EXPRESS OR IMPLIED, REGARDING USE OF THE PRODUCTS IN A HIGH RISK ENVIRONMENT.
13. LIMITATION OF LIABILITY
13.1. SUBJECT TO THE EXCEPTIONS SET FORTH IN SECTION 13.2 BELOW, TO THE MAXIMUM EXTENT PERMITTED BY THE APPLICABLE LAW, NEITHER PARTY NOR THEIR RESPECTIVE EMPLOYEES, DIRECTORS, SHAREHOLDERS, ADVISORS, AND ANYONE ACTING ON A PARTY’S BEHALF, WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OR LOSS (INCLUDING LOSS OF PROFIT AND LOSS OF DATA); COSTS, EXPENSES AND PAYMENTS, EITHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT, OR IN ANY OTHER FORM OR THEORY OF LIABILITY, ARISING FROM, OR IN CONNECTION WITH, THIS AGREEMENT, INCLUDING ANY USE OF, OR THE INABILITY TO USE, THE PRODUCT; ANY DAMAGE TO OR LOSS OF DATA; ANY FAILURE, ERROR, OR BREAKDOWN IN THE FUNCTION OF THE PRODUCT; ANY DENIAL OR CANCELLATION OF YOUR ACCOUNT; ANY FAULT OR ERROR MADE BY OUR STAFF, OR ANYONE ACTING ON OUR BEHALF; ANY ERROR, INCOMPLETENESS, INCORRECTNESS OR INACCURACY OF THE BACKED-UP DATA, OR INABILITY TO PROPERLY RECOVER DATA. IN ANY EVENT, SUBJECT TO THE EXCEPTIONS SET FORTH IN SECTION 13.2 BELOW, TO THE MAXIMUM EXTENT PERMITTED BY THE APPLICABLE LAW, EACH PARTY’S TOTAL AND AGGREGATE LIABILITY TO THE OTHER PARTY FOR DAMAGES SHALL BE LIMITED TO THE FEES YOU HAVE ACTUALLY PAID US IN THE YEAR PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
13.2. THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN SECTION 13.1 ABOVE DO NOT APPLY TO ANY OF THE FOLLOWING: (A) A BREACH OF SECTION 6; (B) A BREACH OF SECTION 18; (C) LIABILITY FOR EITHER PARTY’S WILLFUL MISCONDUCT OR FRAUD; OR (D) LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY EITHER PARTY’S GROSS NEGLIGENCE.
14. Exclusions. Notwithstanding anything herein to the contrary, we will be fully released from our obligations and liability to you, including our obligations under sections 9, 12 and 13 above, if the alleged damage was caused on connection with any of the following events:
14.1. You have neglected to properly respond to, address, and handle alerts or warnings issued by the Product;
14.2. You have misused the Product, or improperly used it, in a manner prohibited by this Agreement or the Documentation;
14.3. You have combined, installed or used, in conjunction with the Product, software, equipment or Products not authorized by InsidePacket or not according to the Documentation; or
14.4. The Product has been damaged or compromised by causes beyond our control.
15.1. You agree to indemnify, defend and hold harmless InsidePacket, its officers, directors and employees, at your own expense, from and against any damages, loss, costs, expenses and payments, including reasonable attorney’s fees and legal expenses, resulting from any complaint, claim, or demand arising from, or in connection with your violation or infringement of any other person’s rights committed by your use of the Product in breach of this Agreement, provided that the complaint, claim, or demand would have been avoided but for the unauthorized use you made of the Product.
15.2. InsidePacket agrees to indemnify, defend and hold harmless you and your officers, directors and employees, at InsidePacket’s own expense, from and against any damages, loss, costs, expenses and payments, including reasonable attorney’s fees and legal expenses, resulting from a claim, suit, action or other legal proceedings alleging that your use of the Product in accordance with this Agreement and the Documentation, infringes a third party’s patent, trademark, service mark, trade secret or copyright. Notwithstanding the foregoing, InsidePacket shall have no liability or obligation to you under this subsection 15.2 with respect to any claim for infringement based upon: (1) use of the Product in combination with other devices; (2) use of the Product in an application or environment for which such Product was not intended; (3) modifications or alterations of the Product performed by anyone other than InsidePacket; or (4) a breach or alleged breach by you of any of the representations, warranties, covenants or obligations in this Agreement; in each case of (1) – (4) above, to the extent that the Product would not be infringing in the absence of such circumstances. Should the Product become, or in InsidePacket’s reasonable opinion be likely to become the subject of such a claim, InsidePacket may, at its option, eliminate such infringement by procuring for you the right to continue using the Product, or replacing or modifying the Product so that they become non-infringing.
15.3. An indemnifiable party must expeditiously notify the indemnifying party of any such indemnifiable claim it becomes aware of, give the indemnifying party control over the defense and settlement of the claim and not admit to any wrongdoing by the indemnifiable party. An indemnifiable party shall extend reasonable assistance to the indemnifying party in the defense and settlement of the claim, at the indemnifying party’s expense. Neither party shall settle the claim in any manner that imposes liability or prejudices the other party without its prior written consent which shall not be unreasonably withheld, denied or delayed. The indemnifiable party may participate in the defense and settlement of the indemnifiable claim with counsel of its choosing and at its expense.
16. Export Laws. You agree to comply fully with all applicable export laws and regulations to ensure that neither the Product nor any technical data related thereto are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations.
17. Data protection. You hereby represent and warrant that you will provide all appropriate notices, obtain all appropriate informed consents, comply at all times with all applicable privacy and data protection laws and regulations, to allow InsidePacket to process the Licensee Data for the purpose of the provision of technical support for the Product (including, without limitation, the provision of such data to InsidePacket. To the extent that you are subject to the CCPA, the appended Data Processing Addendum (“DPA”) applies, and you and InsidePacket shall comply with it and adhere to its provisions.
18. Confidential Information. You acknowledge that the Product, the Order Form and any terms and conditions of your business relationship with InsidePacket is InsidePacket's confidential information (collectively, the “Business Terms”), and that the Product’s features, performance, limitations and other characteristics comprise confidential and proprietary information and trade secrets of InsidePacket. You agree that any unauthorized disclosure, use, or copying of the foregoing with respect to the Product or the Business Terms may cause InsidePacket inestimable serious financial loss. Accordingly, you shall treat the Product and Business Terms as confidential and not divulge them to anyone outside your employees. The obligations set forth in this Section shall survive termination of this Agreement.
19. Compliance Verification/Audit. Audits may be performed by InsidePacket or its designated agent to ensure compliance with the terms and conditions of this Agreement. InsidePacket shall provide at least ten (10) days prior written notice to Licensee before the start of an Audit and will conduct the Audit during normal business hours. InsidePacket agrees that any Licensee information gathered during the performance of an audit shall be Licensee’s confidential information under this Agreement.
20. Governing Law. This Agreement, the Product, and any claim, cause of action or dispute arising out of, or related thereto, will be governed solely by the laws of the State of New York, regardless of your country of origin or where you use the Product from, without giving effect to any conflict of law principles. Any dispute, claim or controversy arising out of, connected with, or relating to this Agreement, the Product, or any use related thereto, will be under the sole and exclusive jurisdiction of the competent courts in New York County, New York.
Notwithstanding the foregoing: (a) we may assert an impleader claim against you pursuant to the indemnity clause above, in any court adjudicating a third party claim against us; (b) we may assert a claim for injunctive or other emergency relief in any other court having general or specific jurisdiction over the Licensee to enforce its obligations under this Agreement without the necessity of proving actual damages and without the necessity of posting bond or making any undertaking in connection therewith.
21. Equitable Relief. The Licensee hereby acknowledges that unauthorized disclosure or use of the Product and/or breach of InsidePacket’s intellectual property right or confidentiality interests under this Agreement could cause InsidePacket irreparable harm and significant injury that may be difficult to ascertain. Accordingly, the Licensee agrees that InsidePacket, in addition to any other right or remedy that it may have available to it at law or in equity, will have the right to seek immediate injunctive relief.
22. Force Majeure. InsidePacket shall not be responsible for any cessation, interruption, or delay in the performance of its obligations hereunder due to pandemic, civil unrest, earthquake, flood, fire, storm, natural disaster, act of God, war, terrorism, armed conflict, labor strike, lockout, boycott, availability of network and communications services or other similar events beyond its reasonable control.
23. Assignment. You may not assign or transfer any rights you have, arising from this Agreement, or in connection with the Product, without our prior written consent. Any assignment or transfer of your rights under this Agreement, contrary to the above, will be null and void. We may assign this Agreement and all rights or obligations hereunder without your consent, upon notice to you, in case of a merger of InsidePacket or acquisition of InsidePacket’s assets relating to the performance of this Agreement. By virtue of such assignment, the assignee assumes our stead and we are irrevocably released from all our liabilities, performance and obligations hereunder.
24. Complete Terms and Severability. This Agreement, together with the Order Form and SLA, constitutes the entire and complete agreement between you and us concerning any use of, or in connection with, the Product. This Agreement supersedes all prior oral or written statements, understandings, negotiations and representations with respect to the subject matter herein and it is expressly understood and agreed that this Agreement supersedes the preprinted terms, conditions and provisions on any purchase order, procurement portal or documents provided by Licensee, its agents or representatives. If any provision of this Agreement is held invalid or unenforceable, that provision must be construed in a manner consistent with the applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining provisions will remain in full force and effect. This Agreement may be modified or amended only in writing, signed by the duly authorized representatives of both parties.
25. No waiver. Neither party will, by mere lapse of time, without giving express notice thereof, be deemed to have waived any breach, by the other party, of any terms or provisions of this Agreement. The waiver, by either party, of any such breach, will not be construed as a waiver of subsequent breaches or as a continuing waiver of such breach.
26. Relationship of the Parties. The relationship between the parties hereto is strictly that of independent contractors, and neither party is an agent, partner, joint venturer or employee of the other.
27. Changes to the Agreement. From time to time, we may change the Agreement, by providing you notice of such changes and seeking your consent to them. In any event, we will seek your consent to any increase in subscription Fees, before we bill you for a newly priced subscription Fee. If you do not consent to the amended Agreement or new subscription Fees, we may terminate this Agreement only as set out in section 7.3.
Last updated: September 29, 2022
Data Processing Addendum
1. Capitalized terms used in this Data Processing Addendum (“DPA”) but not defined in the DPA or in the Agreement have the meaning ascribed to them in the California Consumer Privacy Act of 2018 (CCPA), Cal. Civ. Code §1798.140.
2. This DPA applies only where InsidePacket is processing Personal Information as a Service Provider on behalf of the Licensee where the Licensee in a Business subject to the CCPA. It does not apply to InsidePacket’s Processing Personal Information of Licensee’s representatives to market or promote its products, to administer the business or contractual relationship between InsidePacket and the Licensee or in other instances where InsidePacket operates in a capacity other that a Service Provider of the Licensee.
3. The Parties acknowledge and agree that InsidePacket is a Service Provider. To that end, and unless otherwise requires by law:
3.1. InsidePacket is prohibited from retaining, using or disclosing Licensee’s Personal Information for: (a) any purpose other than the purpose of properly performing, or for any commercial purpose other than as reasonably necessary to provide, the technical support for the Product or as otherwise permitted under 11 CCR §999.314(c); (b) Selling the Licensee’s Personal Information; and (c) retaining, using or disclosing the Licensee’s Personal Information outside of the direct business relationship between the Parties, except as permitted under 11 CCR §999.314(c). InsidePacket certifies that it understands the restriction specified in this subsection and will comply with it.
3.2. If InsidePacket receives a request from a California Consumer of the Licensee, about his or her Personal Information, InsidePacket shall not comply with the request itself, but shall inform the Consumer that InsidePacket’s basis for denying the request is that the InsidePacket is merely a service provider that follows Licensee’s instruction, and inform the Consumer that they should submit the request directly to the Licensee and provide the Consumer with the Licensee’s contact information.
4. InsidePacket shall delete the Personal Information it has Processed on Licensee’s behalf under this Addendum from its own and its service provider’s systems, shortly after it completes the technical support request, and upon Licensee’s request, will furnish written confirmation that the Personal Information has been deleted pursuant to this section.
5. InsidePacket shall assist Licensee by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of Licensee’s obligation to respond to requests for exercising Consumer rights under the California Consumer Privacy Act of 2018.
6. Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of InsidePacket’s processing of Personal Information of the Licensee, as well as the nature of personal information processed for Licensee, InsidePacket shall implement and maintain reasonable security procedures and practices appropriate to the nature of the Personal Information, to protect the Personal Information from unauthorized access, destruction, use, modification, or disclosure (including data breaches).