Terms of Use

Last updated August 1, 2023

Overview

BY ACCEPTING THIS AGREEMENT OR ACCESSING OR USING THE SERVICE, YOU ARE AGREEING TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.

IF YOU ARE USING ANY SERVICE AS AN EMPLOYEE, AGENT, OR CONTRACTOR OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO SIGN FOR AND BIND SUCH ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT. THE RIGHTS GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.

Table of Contents

1.0      Provision of Service

2.0       Responsibilities of Customer

          2.1      Customer Account

          2.2      Use Restriction

          2.3      In Addition

3.0      CUSTOMER DATA

          3.1     Use of Customer Data

          3.2     Data Security

4.0      INTELLECTUAL PROPERTY

          4.1      Ownership Rights

          4.2      Usage Data

          4.3      Updates

5.0      FEES and PAYMENT

          5.0      Fees and Payments

          5.1      Late Payments

          5.2      Payment Disputes

          5.3      Application Taxes

6.0      TERM, TERMINATION and SUSPENSION

          6.1     Term

          6.2      Renewal

          6.3      Suspension

          6.4      Termination for Cause

7.0      DATA EXPORT. and RETENTION

8.0    CONFIDENTIALITY

9.0      WARRANTIES/DISCLAIMER of WARRANTIES

          9.1      Service Warranty

          9.2      Malware Warranty

          9.3      Warranty Disclaimer

          10.0    LIMITATION of LIABILITY

          11.0    INDEMNIFICATION

          11.1    Indemnification by SecPod

11.2    Indemnification by Customer

          11.3    Indemnification Procedures

12.0    MISCELLANEOUS

          12.0    Use of Third Parties for Payment Processing

          12.1    Assignment

          12.2    Entire Agreement

          12.3    Publicity Rights

          12.4    Relationship of the Parties

          12.5    Survival

          12.6    Notices

          12.7    Anti-Corruption

          12.8    Force Majeure

          12.9    Governing Law

          12.10   Dispute Resolution

13.0    DEFINITIONS

 

 

1.0 – Provision of Service

SecPod will make the Services and Software available to Customer pursuant to this Agreement, and provide such Services in accordance with this Agreement, the Privacy Policy, and laws and government regulations applicable to SecPod business, during each Subscription Term. During the Subscription Term, SecPod grants to Customer a limited, non-exclusive right to access and use the Services and Software only for its internal business purposes, for up to the number of Subscriptions included in the license, including the right to download, install in connection with the authorized use of the Software.

2.0 Responsibilities of Customer

a. Customer Account

Customer may need to register for an Account in order to place orders or access or receive the Software. Customer agrees to keep its Account information current, accurate and complete so that SecPod may send notices, statements and other information to Customer via email or through its Account, which notifications will be subject to this Agreement and the Privacy Policy. Customer will be responsible for maintaining the confidentiality of User login information and credentials for accessing the Software and will notify SecPod promptly of any loss, misuse, or unauthorized disclosure of such login information and/or credentials of which Customer becomes aware. SecPod and its Affiliates will not be liable for any damage or loss that may result from Customer’s breach of the foregoing obligations.

b. Use Restrictions

Customer may only use the Software in accordance with the Documentation, subject to the use limitations indicated in the License Plan pursuant to which Customer subscribes to the Software, and the terms of this Agreement. Customer agrees to comply with the SecPod’s Acceptable Use and Conduct Policy which is hereby incorporated into this Agreement. Customer further agrees not to use the SecPod’s Technology to: (i) process data on behalf of any third party other than Customer’s Users and End Users; (ii) use the Service or SecPod’s Technology in violation of applicable law (iii) store or transmit any content that infringes upon any third party’s intellectual property rights; or (iv) for competitive intelligence or performance benchmarking purposes.

c. In Addition

Customer will not: (v) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the SecPod’s Technology available to any third party other than Users and End Users, and only in furtherance of its permitted business purposes as expressly permitted by this Agreement; (vi) falsely imply any sponsorship or association with SecPod; (vii) decompile, reverse engineer, disassemble, reproduce, or copy or otherwise access or discover the source code or underlying program of any portion of SecPod’s Technology.

 

 

3.0 – Customer Data

a. Use of Customer Data

As between the parties, Customer retains all right, title and interest (including any and all intellectual property rights) in and to the Customer Data and any modifications made thereto in the course of the operation of the SecPod’s Technology. Subject to the terms of this Agreement, Customer hereby grants to SecPod’s and its Affiliates a non-exclusive, worldwide, royalty-free right to process the Customer Data solely to the extent necessary to provide, maintain, and improve the SecPod’s Technology and perform all related obligations owed to Customer under this Agreement, or as may be required by law. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer warrants that Customer has and will have sufficient rights in the Customer Data to grant the rights to SecPod under this Agreement.

b. Data Security

The parties will comply with the terms of the Data Processing Agreement (DPA), which is incorporated into this Agreement by this reference, with respect to the provision and processing of Personal Data as defined in the DPA. SecPod will use appropriate technical and organizational measures in the Services to protect the Customer Data from unauthorized access, processing, loss, or disclosure. SecPod measures are designed to provide a level of security appropriate to the risk of processing the Customer Data within the Services. Customer understands that SecPod and its Affiliates will process Customer Data in accordance with applicable data protection laws, this Agreement, including the DPA, and the Privacy Notice.

 

 

4.0 – Intellectual Property

a. Ownership Rights

Customer Data is Customer’s Confidential Information under this Agreement. Customer and its licensors retain all right, title and interest in and to the Customer Data and all of Customer’s Confidential Information provided under this Agreement, and SecPod obtains no rights in the foregoing except for the express rights granted in this Agreement and the Privacy Policy. SecPod and its licensors retain all right, title, and interest in and to SecPod’s Technology and Usage Data. Customer acknowledges that the Services are offered as online, hosted solutions, and that Customer has no right to obtain a copy of the underlying computer code for any Software, except (if applicable) for any downloadable Software, in object code format. SecPod may freely use and incorporate into SecPod products and services any suggestions, enhancement requests, recommendations, corrections, or other feedback provided by Customer or by any Users or End Users relating to SecPod products or services. Feedback and any other suggestions are provided by Customer exclusively “AS IS,” in Customer’s sole discretion, and will not be used by SecPod in any way that identifies or permits identification of Customer, its Affiliates, Users, or End Users. 

b. Usage Data

Notwithstanding anything to the contrary in this Agreement, SecPod may collect and use any data that is derived from the use of the Software or characteristics such as country of domicile, company size, or industry, in each case that is anonymized and aggregated such that such data could no longer directly or indirectly identify Customer, Customer’s Users or End Users, or any natural person (“Usage Data”).

c. Updates

SecPod may update the Services and Software from time to time and Customer may receive notifications of Updates. Any Updates to the Services and Software are subject to this Agreement. Customer agrees that its purchase of licenses to the Services and Software is neither contingent upon the delivery of any future functionality or features, nor dependent upon any oral or written comments made by SecPod with respect to future functionality or features.

 

 

5.0 – Fees and Payments

a. Fees and Payment

All charges associated with Customer’s Account (“Fees”) are set forth in the license term or Website. For credit card payments, the payment is due immediately upon receipt of invoice. Customer hereby authorizes SecPod or our authorized agents, as applicable, to bill your credit card upon subscription to the Software(s) (and any renewal thereof). For payments through other accepted methods, payment is due and payable in full within thirty (30) days from the invoice date or as stated in the license term. Payment obligations are non-cancelable, regardless of utilization by the Customer and except as expressly permitted in this Agreement, Fees paid are non-refundable. Customer will pay the Fees through an accepted payment method as specified in the license term or Website. Unless otherwise set forth in the license term, Customer’s subscription to the Services will renew automatically for a Subscription Term in accordance with the renewal terms and conditions set forth in Section 6(b) below. 

b. Late Payments

If undisputed Fees are more than thirty (30) days overdue, then, following written notification from SecPod, SecPod may suspend Customer’s access to the SecPod’s Software, including, without limitation, Customer’s Account, until such unpaid Fees are paid in full. 

c. Payment Disputes

SecPod will not exercise its rights under Section 5(b) (Late Payments), 6(d) (Termination for Cause) or Section 6(c)(i) (Suspension of Service) with respect to non-payment by Customer if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute. If the parties are unable to resolve such a dispute within thirty (30) days, each party will have the right to seek any remedies it may have under this Agreement, at law or in equity, irrespective of any terms that would limit remedies on account of a dispute. For clarity, any undisputed amounts must be paid in full.

d. Applicable Taxes

The Fees do not include any taxes, levies, duties, or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). Customer agrees to pay applicable direct or indirect Taxes associated with its purchases hereunder, which, to the extent SecPod is legally required to collect the same, will be itemized on the SecPod’s invoice. If Customer has an obligation to withhold any amounts under any law or tax regime, Customer will gross up the payments so that SecPod receives the amount actually quoted and invoiced. If SecPod has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount will be invoiced and paid by the Customer, unless, prior to the invoice date, the Customer provides SecPod with a valid tax exemption certificate authorized by the appropriate taxing authority.

 

 

6.0 – Term, Termination and Suspension

a. Term

This Agreement is effective as of the Effective Date (or, for online Customers, the date of sign up on the Website) and will continue through the then-current Subscription Term. License Plans commence on the start date specified in the relevant license terms(or, for online Customers, the date of sign up on the Website) and continue for the Subscription Term specified therein. 

b. Renewal

Unless a party gives written notice of non-renewal at least sixty (30) days prior to the expiration of the relevant Subscription Term, Service Plans will automatically renew at the same number of subscriptions and at the same Service Plan, for a period equal to the previous Subscription Term. SecPod reserves the right to increase the Fees at the beginning of each Subscription Term, including any automatically renewed term. Any Fees for a renewed Subscription Term are due upon the date of renewal.

c. Suspension

SecPod may suspend Customer’s access to the Services, Software, and/or Customer’s Account, on the following grounds: (i) late payment/non-payment of undisputed Fees, per the process noted in Section 5(b) above; (ii) non-renewal of the Services by Customer; (iii) Customer’s or its Users’ breach of Section 2 (Use Restrictions); or (iv) in the event suspension is deemed necessary by SecPod to prevent or address the introduction of Malicious Software (as defined in Section 9.b below), a security incident, or other harm to Customer, SecPod, or SecPod’s other customers. SecPod will notify Customer of any such suspension. SecPod will use diligent efforts to attempt to limit, where commercially feasible, the suspension to affected Users or SecPod’s Technology, and will immediately restore the availability of the same as soon as the issues leading to the suspension are resolved. Such suspension will in no way affect Customer’s other obligations under this Agreement.

d. Termination for Cause

Either party may terminate this Agreement by written notice to the other party in the event that (i) such other party materially breaches this Agreement and does not cure such breach within thirty (30) days of such notice, or (ii) immediately in the event the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

e. Free Trial Customers

Upon the expiration of Customer’s free trial, SecPod may immediately suspend Customer’s access to the Services. Customer must export Customer Data before the end of the free trial or Customer Data will be permanently deleted. Notwithstanding anything to the contrary in this Agreement SecPod will have no obligation to maintain, store or otherwise retain Customer Data beyond the end of the free trial period.

 

 

7.0 – Data Export. and Retention

Upon termination or expiration of this Agreement or any license term for any reason, Customer’s access to the Services, Software, APIs, and other SecPod’s Technology will terminate. SecPod strongly recommends that Customer export all Customer Data before Customer closes Customer’s Account. SecPod will make Customer Data available for export for fourteen (14) days from the effective date of the closure of the Customer’s Account due to: (i) the termination or expiration of this Agreement, or (ii) termination or expiration the license term. Where Customer Data is retained by SecPod and can be exported, and provided that Customer is current on its payment obligations as described in Section 5, Customer may contact SecPod within the Data Export Period to have SecPod export Customer’s Customer Data. Beyond such Data Export Period, SecPod reserves the right to retain Customer data for up to three (3) months before deleting all Customer Data in the normal course of operation except as necessary to comply with SecPod legal obligations, maintain accurate financial and other records, resolve disputes, and enforce its agreements. Customer Data cannot be recovered once it is deleted. Customer may contact [email protected] within the Data Export Period to export Customer Data.

 

 

8.0 – Confidentiality

Each party will protect the other’s Confidential Information from unauthorized use, access, or disclosure in the same manner as it protects its own Confidential Information of similar nature or importance, and in any event, using no less than reasonable care. Except as otherwise expressly permitted pursuant to this Agreement, the receiving party may use the disclosing party’s Confidential Information solely to exercise its respective rights and perform its respective obligations under this Agreement, and will disclose such Confidential Information solely (i) to those of its respective employees, representatives, and agents who have a need to know such Confidential Information for such purposes and who are bound by obligations to maintain the confidentiality of, and not misuse, such Confidential Information; (ii) as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction; or (iii) as reasonably necessary to comply with any applicable law or regulation. The provisions of this section will supersede any non-disclosure agreement by and between the parties entered into prior to this Agreement that would purport to address the confidentiality of any information shared by the parties, including Customer Data, and such agreement will have no further force or effect with respect to the foregoing. The receiving party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the receiving party, the disclosing party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.

 

 

9.0 – Warranties/Disclaimer/ of Warranties

a. Service Warranty

SecPod warrants that the Services, Software will perform in all material respects in accordance with the Documentation. Provided that Customer provides written notice of a claim within thirty (30) days after first becoming aware of a breach of the foregoing warranty, SecPod will use diligent efforts to correct the Services, Software so the foregoing warranty is met, and if SecPod is unable to make such corrections in a timely manner, either party may terminate the Subscription Term, and Customer, as its sole and exclusive remedy, will be entitled to receive a refund of any unused Fees that Customer has pre-paid for the applicable Services, Software purchased thereunder. This warranty will not apply if the error or non-conformance was caused by Customer’s breach of this Agreement or Customer’s or its Users’ misuse of the Services, and Software, modifications to the Services, and Software by anyone other than SecPod or its representatives, or third-party hardware, software, or services used in connection with the Services, and Software. 

b. Malware Warranty

SecPod warrants that the Services hosted by SecPod will be monitored using commercially available means to attempt to detect and prevent the introduction of any software, or other technology means whose purpose or effect is to disrupt, damage or interfere with the authorized use of, or allow access to, the computer and communications facilities or equipment of SecPod or Customer, including, without limitation, any code containing viruses, Trojan horses, worms, backdoors, trap doors, time-out devices or similar destructive or harmful code or code that self-replicates (collectively, “Malicious Software”).

c. Warranty Disclaimer

EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AND ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.

 

 

10.0 – Limitation of Liability

a. SUBJECT TO APPLICABLE LAW AND NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DOWNTIME COSTS, LOSS OF DATA, RESTORATION COSTS, LOST PROFITS, OR COST OF COVER) REGARDLESS OF WHETHER SUCH CLAIMS ARE BASED ON CONTRACT, TORT, WARRANTY OR ANY OTHER LEGAL THEORY.

b. EXCEPT FOR AN ACTION BROUGHT FOR GROSS NEGLIGENCE, WILLFUL MISCONDUCT, FRAUD, DATA CLAIMS OR IP CLAIMS, EACH PARTY’S AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS, UNDER THIS AGREEMENT WILL NOT EXCEED THE FEES RECEIVED BY OR PAYABLE TO SECPOD IN THE TWELVE MONTHS PRECEDING THE CLAIM (“THE GENERAL LIABILITY CAP”).

c. IN THE CASE OF IP CLAIMS AND DATA CLAIMS, SECPOD AND ITS AFFILIATES’ TOTAL LIABILITY TO THE CUSTOMER AND ITS AFFILIATES FOR ALL SUCH CLAIMS IN THE AGGREGATE (FOR DAMAGES OR LIABILITY OF ANY TYPE) WILL NOT EXCEED THE GENERAL LIABILITY CAP (“SUPERCAP”). 

d. THE PARTIES AGREE THAT THIS SECTION 10 WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE APPLICABLE MONETARY CAPS SET FORTH IN THIS SECTION WILL APPLY ACROSS THIS AGREEMENT AND ANY AND ALL SEPARATE AGREEMENT(S) ON AN AGGREGATED BASIS, WITHOUT REGARD TO WHETHER ANY INDIVIDUAL CUSTOMER AFFILIATES HAVE EXECUTED A SEPARATE SOF.

 

 

11.0 – Indemnification

a. Indemnification by SecPod

SecPod will defend Customer and its Affiliates, from any third party claim alleging that Customer’s use of the SecPod’s Technology as contemplated hereunder infringes such third party’s patent, copyright and/or trademark intellectual property rights (an “IP Claim”), and will indemnify and hold harmless Customer and its Affiliates from and against any damages and costs awarded against Customer or its Affiliates, or agreed in settlement by SecPod (including reasonable attorneys’ fees) resulting from such IP Claim. SecPod will have no liability or obligation with respect to any IP Claim if such claim is caused in whole or in part by (i) unauthorized use of the SecPod’s Technology by Customer, its Affiliates or Users; (ii) modification of the SecPod’s Technology by anyone other than SecPod or its representatives; (iii) or the combination, operation or use of the SecPod’s Technology with other data, hardware or software not provided by SecPod. If Customer’s use of the SecPod’s Technology in an IP Claim, SecPod may at its own option and expense (a) procure for Customer the right to continue using the foregoing items as set forth hereunder; (b) replace or modify them to make them non-infringing; or (c) if options (a) or (b) are not commercially reasonably as determined by SecPod, then either Customer or SecPod may terminate Customer’s subscription to the Service, whereupon SecPod will refund Customer, on a pro-rated basis, any Fees Customer has previously paid SecPod for the corresponding unused portion. The sections above state SecPod’s entire liability and Customer’s exclusive remedy with respect to an IP Claim. 

b. Indemnification by Customer

Customer will defend SecPod and its Affiliates from any third party claim (“Claim”), and will indemnify and hold harmless SecPod and its Affiliates from and against any damages and costs awarded against SecPod and its Affiliates, or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such Claim, to the extent caused by: (i) Customer’s or its Affiliate’s unauthorized supply, disclosure, or processing of Customer Data, including Personal Data therein, (ii) Customer’s or its Affiliate’s violation of laws applicable to Customer’s or its Affiliate’s business. 

c. Indemnification Procedures

In the event of a potential indemnity obligation under this Section 11, the indemnified party will: (i) promptly notify the indemnifying party in writing of the claim, (ii) allow the indemnifying party the right to control the investigation, defense and settlement (if applicable) of such claim at the indemnifying party’s sole cost and expense, and (iii) upon request of the indemnifying party, provide all necessary cooperation at the indemnifying party’s expense. Failure by the indemnified party to notify the indemnifying party of a claim under this section will not relieve the indemnifying party of its obligations under this Section, however, the indemnifying party will not be liable for any litigation expenses that the indemnified party incurred prior to the time when notice is given or for any damages and/or costs resulting from any material prejudice caused by the delay or failure to provide notice to the indemnifying party in accordance with this section. The indemnifying party may not settle any claim that would bind the indemnified party to any obligation (other than payment covered by the indemnifying party or ceasing to use infringing materials) or require any admission of fault by the indemnified party, without the indemnified party’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed. Any indemnification obligation under this Section 11 will not apply if the indemnified party settles or makes any admission with respect to a claim without the indemnifying party’s prior written consent.

 

 

12.0 – Miscellaneous

a. Use of Third Parties for Payment Processing

SecPod may use a third-party service provider to manage payment processing provided that such service provider is not permitted to store, retain, or use Customer’s payment account information except to process Customer’s payment information for SecPod. Customer must notify SecPod of any change in Customer’s payment account information, either by updating Customer’s Account or by e-mailing SecPod at [email protected].

b. Assignment

Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety, without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempted assignment in violation of this section will be null and void.

c. Entire Agreement

This Agreement, together with any License Term, the Privacy Notice, and the DPA, constitutes the entire agreement and supersedes any and all prior agreements or communications between Customer and SecPod, including but not limited to Customer registration forms and Purchase Orders, regarding the subject matter hereof. In the event of a conflict between the Privacy Notice, or any License Term and this Agreement, the order of precedence will be, first, the Privacy Notice, second, the License Term, and third the DPA, and fourth this Agreement. If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision will be modified by the court and interpreted so as to best accomplish the original provision, and the remaining provisions of this Agreement will remain in effect.

d. Publicity Rights

SecPod may identify Customer as a SecPod’s customer in its promotional materials. Customer may request that SecPod stop doing so by submitting an email to [email protected] at any time.

e. Relationship of the Parties

The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.

f. Survival

Sections 2.b (Use Restrictions), 4 (Intellectual Property), 5 (Fees and Payment), 6 (Term, Termination and Suspension), 8 (Confidentiality), 9.c (Warranty Disclaimer), 10 (Limitation of Liability), 11 (Indemnification), 12.c (Entire Agreement), 12.f (Survival), 12.g. (Notices), 11.j (Governing Law) and 12.k (Dispute Resolution) and 13 (Definitions) will survive any termination of the Agreement. Termination of this Agreement will not limit either party’s liability for obligations accrued as of or prior to such termination or for any breach of this Agreement.

g. Notices

All notices to be provided by one party to the other under this Agreement may be delivered in writing by (i) nationally recognized overnight delivery service to the mailing address provided on the License Term; or (ii) electronic mail to the e-mail address provided for Customer’s Account. The address for a notice to SecPod is: SecPod Technologies, Inc. 303 Twin Dolphin Drive, 6th Floor Redwood City, California, 94065 with a copy to [email protected] by electronic mail. All notices will be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, five (5) business days after being deposited in the mail or with a courier as permitted above.

h. Anti-Corruption

Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer learns of any violation of the above restriction, Customer will use reasonable efforts to promptly notify SecPod at [email protected].

i. Force Majeure

Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement if the delay or failure results from any cause beyond such party’s reasonable control, including but not limited , acts of God, acts of government, acts of terror or civil unrest, Internet failures, or acts undertaken by third parties not under the performing party’s control, including, without limitation, denial of service attacks (“Force Majeure Event”). In the event that a Force Majeure Event continues for a period of thirty (30) consecutive days, the other party may terminate this Agreement and all SOFs on written notice to the non-performing party. If SecPod is the party experiencing the Force Majeure Event and as a result thereof is unable to provide the Services, Software for the period noted herein, and Customer terminates this Agreement and all SOFs, then SecPod will provide Customer a refund of fees paid by Customer pro-rated as of the date the Force Majeure Event commenced.

j. Governing Law

This Agreement is governed by the laws of the State of California without regard to conflict of laws principles. The parties hereby submit to the exclusive personal jurisdiction of the federal and state courts of the State of California, San Francisco County for any claims or dispute relating to this Agreement.

k. Dispute Resolution

Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, will be determined by arbitration in San Francisco, California. Judgment on the Award may be entered in any court having jurisdiction. This section will not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.

 

 

13.0 – Definitions

Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, will be determined by arbitration in San Francisco, California. Judgment on the Award may be entered in any court having jurisdiction. This section will not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.

“Account” means any accounts or instances created by or on behalf of Customer for access to and use of any of the Services.

“Affiliate” or “Subsidiaries” means with respect to a party to this Agreement, any entity that directly or indirectly controls, is controlled by, or is under common control with such party, where “control” means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such entity, whether through the ownership of voting securities, by contract, or otherwise.

“Confidential Information” means all information disclosed by one party to the other party, orally, in writing or electronically, that is designated as “confidential” (or with a similar legend), or which a reasonable person should understand to be confidential given the nature of the information and circumstances of disclosure. Confidential Information does not include any information that: (a) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (b) becomes publicly known and made generally available through no action or inaction of the receiving party; (c) is already in the possession of the receiving party at the time of disclosure by the disclosing party; (d) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; or (e) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.

“Customer Data” means all electronic data, text, messages or other materials, including, without limitation, Personal Data of Users and End Users, submitted to the Services by Customer or its Users through Customer’s Account in connection with Customer’ use of the Services.

“Data Claims” means any claims arising from either (a) a party’s breach of Section 3 (Customer Data), Section 8 (Confidentiality), the DPA, or the Privacy Notice where such breach results in the unauthorized disclosure of Customer Data, or (b) breach of Section 2 (b) (Use Restrictions).

“Documentation” means, the then-current, generally available user documentation provided by SecPod detailing the functionalities of the Software and the Services.

“End User” means, any person or entity other than Customer or Customer’s Users with whom Customer interacts using the Services.

“SecPod’s Technology” means (i) the Services, Software, Applications, Documentation, SecPod’s APIs, SecPod’s website(s) and any content published on the SecPod’s websites, (ii) any training materials, support materials, templates, tools, methodologies or know-how, (iii) SecPod’s Confidential Information and (iv) any modifications or derivative works of the foregoing.

“Personal Data” means, data relating to an individual who is or can be identified either from the data or from the data in conjunction with other information that is in, or is likely to come into, the possession of the data controller (as defined under applicable data protection laws).

“Privacy Policy” means, SecPod privacy policy currently at www.secpod.com/privacy-policy, as updated from time to time.

“License Term” means (i) any service order referencing this Agreement and executed by Customer and SecPod, or (ii) any online ordering document or process completed by Customer, including any online registration through a Website, each of which detail the Services subscribed to and corresponding License Plans, the number of Users authorized to use the Services, Fees payable to SecPod, the applicable Subscription Term, and any relevant additional terms and conditions. This may also include any change order forms.

“Services” means, the SecPod’s software-based service offerings identified on the License Term and any Updates, including any Software, API or Documentation made available by SecPod with such offering, but excludes any applications or APIs separately provided by third parties.

“License Plans” means, the pricing plans and other packaged offering limitations for and the applicable Services for which Customer subscribes with respect to any User.

“Software” means the generally available software provided by SecPod in connection with Customer’s use of the Services but excludes any applications or APIs that are provided by third parties.

“Subscription Term” means, the period stated on the License Term during which Customer subscribes to the Software, or Services.

“Update” means, the generally available updates, upgrades, hot fixes, patches, workarounds to the Software or Service provided by SecPod to all subscribing customers but excludes separately priced new products or modules.

 

“User” means, any individual who is authorized by Customer to use the Services, including an Account administrator, employees, consultants, contractors, and agents of Customer or its Affiliates, and third parties with which Customer or its Affiliates transact business.

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