END USER SUBSCRIPTION AND SERVICES AGREEMENT
This Subscription and Services Agreement (“Agreement”) is made between NopSec, Inc., a Delaware corporation having a place of business at 604 W. 26th Street, STE 357, New York, NY 10001 (“NopSec” or “Licensor”) and you or (“Client” or “Licensee”). Licensee and Licensor shall be singly known as a “Party” or collectively known as “Parties”. Licensee may purchase subscriptions to the Software and Services either directly from Licensor (a “Direct Purchase”) or through an authorized reseller of Licensor (a “Reseller Purchase”). The Parties agree that, in either case, this Agreement governs Licensee’s access to and use of the Software and Services and constitutes a direct agreement between Licensor and Licensee, and that, for a Reseller Purchase, all pricing, invoicing and payment terms are solely between Licensee and the Reseller as set forth in Section 7.
1.0 Definitions
1.1 “Affiliate(s)” shall mean any entity, whether incorporated or not, that is controlled by or under common control with Licensee and its successors, and “control” (or variants of it) shall mean the ability whether directly or indirectly to direct the affairs of another by means of ownership, contract or otherwise.
1.2 “Available” means the Software shall be available for access and use by Licensee.
1.3 “Confidential Information” shall be defined as all information of either Party hereto and their respective Affiliates (the “Disclosing Party”) which is disclosed to the other Party (the “Receiving Party”) in oral and/or written form that (i) relates to past, present and future research, development, business activities, products, and services; or (ii) has been either identified, orally or in writing, as confidential by the Disclosing Party or would be understood to be confidential by a reasonable person under the circumstances; (iii) any and all Personal Data including but not limited to that of Licensee’s or its Affiliates’ employees, contractors or agents.
1.4 “Exceptions” means when the Software is unavailable due to (i) Licensor’s inability to provide the Software due to a third-party failure outside of the control of Licensor; or (ii) Licensor’s scheduled downtime (which shall occur no more than one time per week, Sundays from 2:00 a.m. to 4:00 a.m. Eastern Time).
1.5 “Order Schedule” means the order form or schedule(s) to this Agreement that, when completed, set forth the Software and/or Service ordered by Licensee, the Subscription Period, quantities, certain restrictions, whether the order is a Direct Purchase or a Reseller Purchase, and any other terms agreed upon, and that is either (a) for a Direct Purchase, executed by both Parties, in which case it shall also set forth all applicable fees and any payment terms; or (b) for a Reseller Purchase, executed by Licensee and the Reseller, in which case it shall not include pricing or payment terms and shall correspond to a Reseller Order. An Order Schedule becomes effective and is incorporated into and governed by this Agreement (i) for a Direct Purchase, upon execution by both Parties; and (ii) for a Reseller Purchase, upon Licensor’s acceptance, whether in writing (including by email) or by providing Licensee access to the Software and/or Service ordered thereunder, whereupon it shall be binding upon Licensor.
1.6 “Personal Data” shall include, without limitation, (i) name, address, email address, passwords, account numbers, personal financial information, personal preferences, demographic data, marketing data, data about securities transactions, credit data, or any other identification data; (ii) any information that reflects use of or interactions with Licensee’s web sites, search paths, profiles, registration information, or general usage data; (iii) any data or information related to compensation, benefits, employment history, performance, or other personally identifiable employee information. For the avoidance of doubt, Personal Data shall include all “nonpublic personal information,” as defined under the Gramm-Leach-Bliley Act (15 U.S.C. § 6801 et seq.).
1.7 “Reseller” means the authorized reseller of Licensor identified in an Order Schedule for a Reseller Purchase, and includes any authorized reseller of Licensor that Licensee and Licensor agree in writing will replace it.
1.8 “Reseller Order” means, in connection with a Reseller Purchase, the purchase order, quotation, or other ordering document entered into between Licensee and the Reseller for the Software and/or Service, which sets forth the fees, invoicing and payment terms applicable to Licensee’s purchase.
1.9 “Regulators” means any local, state, or federal representatives of government entity(ies) with direct or indirect oversight of Licensee, including, but not limited to the United States, European Union, United Kingdom, Germany, Israel, India, and China.
1.10 “Reimbursable Expenses” means incidental expenses reasonably incurred by Licensor in performing its obligations under the Agreement including without limitation courier, document duplication, postage, long-distance telephone charges, travel and living expenses, and charges for any non-routine supplies and equipment called for in an Order Form,which has been pre-approved by Licensee. Any Reimbursable Expenses shall be invoiced to Licensee by Licensor for a Direct Purchase, or by the Reseller in accordance with the applicable Reseller Order for a Reseller Purchase.
1.11 “Response Time” means the elapsed time between the receipt of a Support Call and the target time within which Licensor begins Support as verified by a verbal or written confirmation to Licensee.
1.12 “Service” means the service(s) and/or deliverable(s) specified in an Order Schedule that has become effective in accordance with Section 1.5.
1.13 “Software” means Licensor’s machine-readable version of its product as specified in an applicable Order Schedule. Software updates, patches, bug fixes, enhancements,
upgrades and documentation (user, administrator, technical) are included in the definition of Software.
1.14 “Standard Support Hours” means Licensor’s usual office hours from 8:00 a.m. to 5.00 p.m., Monday through Friday, U.S. Eastern Time, excluding holidays.
1.15 “Subscription Period” means the subscription period as defined on an applicable Order
Schedule.
1.16 “Support” means the provision during Standard Support Hours, of assistance by telephone, email, screen sharing, or Internet with respect to the Software and/or Service, including (i) clarification of functions and features of the Software and/or Service; (ii) guidance in the operation of the Software and/or Service; and (iii) error verification, analysis and correction by telephone, email, screen sharing, and/or Internet. Licensor reserves the right to determine, in its reasonable discretion, that Licensee’s request is beyond the scope of this Support and that Support is not available with respect to such request.
1.17 “Support Call” means Support Call Severity 1, 2, or 3, jointly or separately, as placed with Licensor by Licensee and as reasonably designated by Licensor.
1.18 “Unauthorized Use” is defined as any use by Licensee that does not conform to the standard operations and administrative functions of the Software as defined in user, technical and administrative documentation, as provided to Licensee.
2.0 License Grant
2.1 License Grant. Subject to the terms and conditions of this Agreement, upon an Order Schedule becoming effective in accordance with Section 1.5, Licensor grants to Licensee and Affiliates a non-exclusive, non-
transferable, worldwide license, solely during the term of the applicable Order Schedule, to access and use the Software solely for Licensee’s internal use and solely in connection with any license restrictions set forth in this Agreement, Order Schedule.
2.2 Additional License Rights, Restrictions, and Limitations. Licensee will not reverse engineer, disassemble or de-compile the Software. Under this Agreement, Licensee will have no claim to the copyrights, trade secrets, patents, trademarks or other proprietary rights in the Software or in any modifications, enhancements and other works derivative of the Software. Licensor reserves the right to terminate access to any Licensee user or to Licensee in whole should Licensee violate these restrictions or this Agreement.
2.3 Availability and Support. Licensor shall provide the Software and Services in accordance with the Support / Service Level Agreement / Performance (commitment) attached hereto as Exhibit 1 to the Order Schedule.
3.0 Confidentiality
Except as otherwise set forth in this Agreement, (i) all Confidential Information of the Disclosing Party acquired by the Receiving Party or its employees, contractors or agents in connection with this Agreement or in contemplation thereof shall be and remain the Disclosing Party’s exclusive property, and (ii) the Receiving Party shall keep, and have its employees, contractors and agents use all reasonable efforts to keep, any and all such Confidential Information confidential, and shall not copy or publish or disclose it to others, or authorize its employees agents or anyone else to copy, publish or disclose it to others, without the Disclosing Party’s prior approval. The Receiving Party agrees to use at least the same care and precaution in protecting Confidential Information of the Disclosing Party as the Receiving Party uses to protect its own proprietary information and trade secrets, but in no event using a less than reasonable standard of care.
Nothing herein shall limit the Receiving Party’s use or dissemination of Confidential Information which: (I) was known without obligation of confidentiality by the Receiving Party prior to its receipt from the Disclosing Party; or (ii) is or becomes public knowledge through no breach of this Agreement by the Receiving Party; or (iii) is available or independently developed by the Receiving Party without any access to, use of or reference to by the Receiving Party of any such Confidential Information, or (iv) was acquired by it from a third party which without obligation of confidentiality and who was, to the best of Receiving Party’s knowledge, authorized to disclose such information.
The Parties agree to maintain the confidentiality of this Agreement, both its existence and the conditions, unless disclosure is required by law, in which case the Disclosing Party shall promptly notify the other party.
Compelled Disclosure. If either Party receives a subpoena or other validly issued administrative or judicial process requesting Confidential Information, the Recipient will promptly notify the Disclosing Party and tender to the Disclosing Party the defense of such demand. Unless the demand is timely limited, quashed or extended, the Recipient will then be entitled to comply with such demand to the extent required by law. If requested by the Disclosing Party (or its representative), the Recipient will reasonably cooperate (at the expense of the Disclosing Party) in opposing such a demand.
4.0 Audit Rights / Data Privacy and Security / Security Breach
4.1 Audit Rights. During the term of this Agreement and for a period of three (3) years thereafter, Licensee, its third-party designee, or Regulators may, on reasonable notice, perform audits of Licensor’s environment and security tests, as it relates to Licensor’s activities on behalf of (or in connection with) providing the Software and/or Service to Licensee. Licensor will provide to Licensee, its third-party designee, or its Regulators with (i) access to Licensor premises; and (ii) accurate and timely information. Licensor agrees to comply with all reasonable recommendations that result from such inspections, tests, and audits within mutually agreed upon, reasonable timeframes.
4.2 Independent Third Party Review. As a Software as a Service provider, Licensor will provide an independent third-party review of security and operational controls on an annual basis. Examples include (but are not limited to): SSAE16 (SOC1), SOC 2, BITS and third party security audits. At a minimum, Licensor will provide a summary report of any finding that impacts Software and/or Services provided by Licensor to Licensee hereunder. In addition, Licensor will provide continual updates, at least quarterly, related to remediation efforts until each observation and/or finding is closed with the appropriate regulatory body or service organization auditor. In the event that Licensor does not have an independent third party review, Licensor shall work with Licensee in good faith to provide any documents or information, as needed, for Licensee to conduct an equivalent review.
4.3 Data Privacy. Licensee is a financial institution and, as such, has both a strong interest in and legal obligations to protect the confidentiality of Personal Data in addition to Confidential Information. Licensor shall comply with the data privacy provisions provided herein. In the event that data is stored and/or transmitted via Licensor provided facilities or infrastructure (including any third parties used by Licensor to provide the product and/or service to Licensee hereunder), Licensor will not modify or change the product and/or service without written authorization from Licensee that will be in the form of an amendment to the applicable work order/effort.
4.4 SOC2 Type II Compliance. Licensor represents and warrants that it shall provide all Software and Services, use all resources, software, and systems, in an appropriately secure manner and in compliance with all applicable industry standards including without limitation, SOC2 Type II, or ISO 27001:2013, or such other similar internationally recognized standard(s).
In the event that Licensee reasonably determines or in good faith believes that Licensor’s security practices and procedures do meet (a) obligations and/or standards pursuant to ISO 27001:2013 or such other similar internationally recognized standard(s); or (b) industry standards; or (c) other requirements of this Agreement, then Licensor shall without unreasonable delay (i) correct such deficiencies at its own expense, (ii) shall further provide Licensee with written certification that it has corrected such deficiencies, and (iii) permit Licensee, its third party designee, or Regulators, on reasonable prior notice, to inspect and/or audit Licensor’s activities that are relevant to the applicable security standards.
Where Licensor knows or reasonably suspects that there is a failure to comply with the provisions set forth in this Agreement, Licensor shall promptly notify Licensee (in any case within the later of twenty-four (24) hours or one (1) business day following such discovery) and cooperate with Licensee in any investigation or remediation efforts. Each Party shall bear its own costs arising out of the performance of and compliance with its obligations set forth in this section.
4.5 Notice for Security Incident and/or Breach. Licensor will promptly notify Licensee (but in no event more than 24 hours after discovery) of any known or suspected security breach of its systems or facilities containing Confidential Information if the information was, or is reasonably believed to have been acquired by an unauthorized person. Licensor will fully cooperate with all actions, including remedial actions or provision of notice to affected parties, which Licensee deems appropriate or as required by law. Such notification shall be sent to Licensee at the email addresses on file. Licensee will provide Licensor with weekly updates (or within the timeframe as otherwise agreed by the Parties) related to any reported incident(s) and/or breach(es) until resolved. Licensor will bear all reasonable costs and expenses incurred as a result of a security breach within its Software or Service to the extent such security breach was caused solely and directly by Licensor.
5.0 Term
This Agreement shall be effective as the Effective Date, and shall continue in effect for a period as specified in an applicable Order Schedule. Thereafter, this Agreement may be renewed by introducing a new or amended Order Schedule specifying a new end date that becomes effective in accordance with Section 1.5. This Agreement will terminate immediately at the end of the then current term or if earlier terminated as defined in this Agreement.
6.0 Termination
6.1 Convenience. Neither Party has the rights to terminate this Agreement for convenience. Unless otherwise agreed by the Parties, this Agreement will terminate and the end of the Subscription Period.
6.2 Termination for Non-Compliance and/or Breach. Licensee may terminate this Agreement in the event Licensor is unable to cure any noncompliance or breach of this Agreement within a reasonable period of time not to exceed thirty (30) days. In addition to any remedies provided by this Agreement or by law, upon termination Licensee shall be entitled to a prorated refund of fees paid by Licensee for the terminated Software and/or Service, which Licensor shall pay to Licensee (for a Direct Purchase) or shall pay or cause the Reseller to pay to Licensee (for a Reseller Purchase) within thirty (30) days of termination. Proration is calculated by using the date of written notice of termination against the end date of the current Subscription Period.
Licensor may terminate this Agreement in the event (i) Licensee is unable to cure any noncompliance or breach of this Agreement within a reasonable period of time not to exceed thirty (30) days; or (ii) immediately if Licensee violates Licensor’s Intellectual Property, License Grant or Confidentiality provisions of this Agreement (for which there is no cure period).
6.3 Effect of Termination. Upon the expiration or termination of this Agreement, for any reason, Licensee shall cease using the Software. Each Party shall promptly return or certify destruction of Confidential Information or Personal Data received from the other Party pursuant to this Agreement. Each Party will bear the cost of returning and/or certifying destruction of the other Party’s Confidential Information.
6.4 Transition Assistance: Upon reasonable notice from Licensee in connection with any termination of this Agreement or an Order Schedule, Licensor shall use commercially reasonable best
efforts to: (a) facilitate the export of all Client Data which resides in Licensor’s systems into a mutually agreed industry format; and (b) provide other transition assistance, as needed and/or requested by Licensee (collectively referred to as “Transition Assistance”). The parties agree to work in good faith and in a reasonable manner to mutually determine the scope and duration of the Transition Assistance with the objective of avoiding any interruption or adverse effect to Licensee’s operations and clients.
7.0 Fees and Payment
7.1 Direct Purchases. For a Direct Purchase, as consideration for the use of the Software and/or Service provided hereunder, Licensee will pay Licensor the fees set forth in the applicable Order Schedule. Unless otherwise specified in an Order Schedule, payment terms shall be thirty (30) business days after the receipt of Licensor’s undisputed invoice, and all invoices shall be paid in U.S. Dollars. Overdue, undisputed balances will be subject to the lesser of a service charge of one and one-half percent (1½%) per month, or the highest rate allowed by law. Licensee shall dispute invoices in good faith and in writing, to be received by Licensor prior to the due date of the applicable, disputed invoice. Licensee shall be responsible for any and all applicable taxes levied on any Direct Purchase, including all federal, state, and local taxes, levies and assessments, excluding any tax based on Licensor’s net income.
7.2 Reseller Purchases. For a Reseller Purchase, Licensee shall pay all fees for the Software and/or Service directly to the Reseller as set forth in the applicable Reseller Order, Licensee shall have no payment obligation to Licensor, and Licensor shall not invoice Licensee directly. All pricing, invoicing, payment terms, late charges, currency and payment disputes for a Reseller Purchase shall be governed exclusively by the Reseller Order and any agreement between Licensee and the Reseller, and are not governed by this Agreement. Licensee’s payment of fees to the Reseller shall fully satisfy Licensee’s payment obligations with respect to the applicable Software and/or Service, and, except for Licensor’s suspension right under Section 7.4(c), Licensee shall have no liability to Licensor for any failure by the Reseller to remit amounts to Licensor.
7.3 Taxes for Reseller Purchases. For a Reseller Purchase, any taxes, levies and assessments applicable to Licensee’s purchase of the Software and/or Service shall be invoiced and collected by the Reseller as set forth in the Reseller Order. In all cases, Licensor shall be responsible for any tax based on Licensor’s net income.
7.4 Suspension of Service. (a) For a Direct Purchase, except in the case of an invoice disputed in good faith, if Licensee’s account becomes thirty (30) days or more overdue and is not cured within fifteen (15) days of written notice by Licensor, Licensor may suspend access to the Software until such amounts are paid. (b) For a Reseller Purchase, if the Reseller notifies Licensor in writing that undisputed amounts owed by Licensee under a Reseller Order are thirty (30) days or more overdue, Licensor may provide written notice to Licensee, and if such amounts are not paid to the Reseller within fifteen (15) days of such notice, Licensor may suspend access to the Software until such amounts are paid. Licensor shall not suspend access under this Section 7.4(b) for any amounts disputed by Licensee in good faith. (c) For a Reseller Purchase, if any undisputed amount due by the Reseller to Licensor for Licensee’s subscription to the Software and/or Service is more than fifteen (15) days past due, Licensor may, on written notice to Licensee, suspend Licensee’s access to the Software until such amount is paid. Any suspension under this Section 7.4 shall not relieve Licensor of its obligations under this Agreement upon restoration of access.
7.5 Renewal Pricing. Renewal pricing shall be specified in the applicable Order Schedule for a Direct Purchase, or in the applicable Reseller Order for a Reseller Purchase. In no event shall pricing for any renewal terms for a Direct Purchase exceed the lesser of (a) 105% of the applicable fee during the immediately preceding 12-month period or (b) the fee for the immediately preceding 12-month period adjusted for any increase in the Consumer Price Index during such period. For purposes of this Section, “Consumer Price Index” means Consumer Price Index for All Items, U.S. City Average, All Urban Consumers (base year 1982-1984=100), published by the Bureau of Labor Statistics of the U.S. Department of Labor.
7.6 Change of Reseller. If the Reseller ceases to be an authorized reseller of Licensor, or the agreement between Licensor and the Reseller terminates, such event shall not affect this Agreement or any Order Schedule for the remainder of the then-current Subscription Period for which Licensee has paid the Reseller. Licensor shall notify Licensee promptly and the Parties shall cooperate in good faith to designate a successor reseller or to have Licensee purchase directly from Licensor for any renewal.
8.0 Indemnification
8.1 Indemnity. Licensor will, at its expense, defend Licensee from and against any and all third party claims, demands, suits, or actions alleging infringement of the patent, copyright, or trademark of a third party or misappropriation of the trade secrets of a third party and shall indemnify and hold Licensee harmless from any and all damages, losses, liabilities, taxes, penalties, fines, charges, costs and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) finally awarded or settled in connection.
8.2 Exclusions. Notwithstanding the foregoing, Licensor will have no liability for any claim of any kind to the extent it results from: (a) Licensee’s unauthorized modification of the Software or Service made other than by Licensor and such modification was the cause of the infringement; (b) Licensee’s unauthorized combination, operation or use of the Software or Service with any product or services not supplied by Licensor to the extent such claim could have been avoided if the products or services were not used in such combination; (c) failure of Licensee to use latest updates or modifications provided by Licensor, if the latest updates or modifications would have avoided infringement and such updates and modifications were made available to Licensee; or (d) compliance by Licensor with designs, plans or specifications furnished by or on behalf of Licensee to the extent such claim could have been avoided without existence of such designs, plans, or specifications.
8.3 Remedies. If a third party claim pursuant to Section 8.1 is made or appears likely to be made, Licensor, in its sole discretion, may elect to: (i) procure for Licensee the right to continue to use the Software or Services; (ii) replace, at Licensor’s cost, the Software or Services or any portion thereof, with a substitute product/service that functions substantially in accordance with the documentation; (iii) modify the Software or Services so that it does not infringe or misappropriate, provided that the Software or Services, as modified, continues to perform substantially in accordance with the documentation; or (iv) terminate this Agreement and refund, or, in the case of a Reseller Purchase, cause the Reseller to refund, to Licensee any prepaid fees paid by Licensee for the remaining portion of the then-current Subscription Period, calculated pro rata on a daily basis.
8.4 Procedure. The foregoing obligations in this Section 8 are conditioned upon Licensee (a) giving Licensor prompt written notice of the claim or action; (b) cooperating with Licensor in connection with the defense and settlement of the claim or action; and (c) permitting Licensor to control the defense and settlement of the claim or action; provided, however, that Licensor may not settle the claim or action resulting in an admission of guilt or resulting in Licensee’s payment of moneys without theLicensee’s prior written consent, which shall not be unreasonably withheld or delayed.
8.5 Sole Remedy. The provisions of this section set forth Licensor’s sole and exclusive obligations, and Licensee’s sole and exclusive remedies, with respect to infringement of intellectual property rights of any kind.
9.0 Limitation of Liability
9.1 IN NO EVENT SHALL EITHER PARTY OR AN AFFILIATE BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL LOSS OR DAMAGES ARISING FROM OR CONNECTED WITH THIS AGREEMENT WHETHER OR NOT THAT PARTY OR AFFILIATE HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
9.2 Except with respect to Licensor’s indemnification obligations and each party’s confidentiality obligations set forth herein or for either party’s gross negligence or willful misconduct (for which there is no limit), neither party shall be liable or obligated under any breach of this Agreement for any amounts in excess in the aggregate of the fees paid or payable by Licensee to Licensor or to the Reseller for the Software and/or Services under the applicable Order Schedule(s) or Reseller Order(s) in the prior twelve (12) month period.
10.0 Insurance
10.1 Licensor shall have in force and maintain at its own cost the following policies of insurance with a reputable national insurance company with an AM’s Best Rating of no less than A-VIII throughout the time required for Licensor to perform its obligations pursuant to this Agreement (and for a period of one (1) year thereafter).
10.2 Such policies shall apply on a primary and noncontributory basis to any other insurance. Upon request by the Licensee, Licensor shall produce evidence that policies are in place and comply with this provision. Licensor will notify Licensee if any of the policies are canceled or changed only if the change results in less coverage than provided herein. Licensor shall cause its authorized subcontractors or assignees to maintain the same or substantially similar insurance coverage.
11.0 Warranties and Remedy
11.1 Warranty. Licensor represents and warrants that the Software and Service (i) will comply in all material respects with the descriptions in the Order Schedule and any other documentation Licensor makes available to customers; and (ii) shall be provided in a professional and workmanlike manner. Licensor represents and warrants that Licensor has the right to license the Software hereunder and to grant the license provided herein. In addition, Licensor shall use then-current industry standards measures, including the installation of anti-virus software, to check the Software and the Services from viruses, and, to the extent found, shall remove such viruses.
11.2 Exclusive Remedy. For any breach of the warranty set forth above, Licensee’s sole and exclusive remedy and Licensor’s entire liability shall be, in Licensor’s reasonable discretion and sole cost, either: (i) correction of the defect or error that caused the breach of warranty; or (ii) replacement of the nonconforming item of the Software or Service, provided that the replacement provides the same (or better) functionality; or (iii) in the event Licensor reasonably determines that it is unable to cure such warranty, termination of Licensee’s right to use the particular defective module(s) or Service and refund, in the case of a Reseller Purchase, directly or through the Reseller, of the fees paid by Licensee from time of notification of non-conformity to end of the current Subscription Period.
11.3 Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES MADE HEREIN, LICENSOR MAKES AND LICENSEE RECEIVES NO OTHER EXPRESS OR IMPLIED WARRANTIES OF ANY KIND WITH RESPECT TO THE SOFTWARE OR SERVICES. LICENSOR SPECIFICALLY DISCLAIMS AND EXCLUDES ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE.
12.0 General
12.1 Entire Agreement. This Agreement (including any Order Schedule(s) and/or Statement(s) of Work) contain the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior proposals, understandings, representations, warranties, covenants, and any other communications (whether written or oral) between the Parties relating thereto. This Agreement is binding upon the Parties and their permitted successors and assigns. The provisions of this Agreement also prevail over and supersede the provisions of any license agreement that accompanies or is embedded in the Software. Only a written instrument that refers to this Agreement and is duly signed by both authorized representatives of both Parties may amend this Agreement. In the event of a conflict in terms among the Agreement or Order Schedule, the Agreement shall control unless the Order Schedule expressly states that it is to control in the event of such conflict and, in the case of an Order Schedule for a Reseller Purchase, Licensor has accepted such Order Schedule in writing. For a Reseller Purchase, the Reseller Order shall govern solely with respect to pricing, invoicing and payment, and no term of any Reseller Order or any agreement between Licensee and the Reseller shall modify Licensor’s obligations to Licensee under this Agreement.
12.2 Assignment. This Agreement shall be binding upon and for the benefit of Licensor and Licensee
and their respective legal representatives, successors, and assigns; provided that neither shall assign, sublicense, delegate, or otherwise transfer any of its rights or obligations under this Agreement without the other Party’s prior written consent, which shall not be unreasonably withheld, delayed or conditioned. Notwithstanding the foregoing, Licensor may assign this Agreement upon notice to the Licensee, in connection with a merger, acquisition or sale of all or substantially all of the business or assets of Licensor.
12.3 Publicity/Use of Name and/or Trademarks
Both Parties shall have the right to use the names of customers on the website and marketing materials from time to time to promote the company’s product and services unless the Customer provides a written request to be explicitly removed.
12.4 Notice. Any notice or other communication provided under this Agreement will be in writing and will be effective when (i) delivered personally to the other Party; or (ii) five (5) days following deposit of such notice or communication into the United States mail (certified mail, return receipt requested); or (iii) Electronic mail with acknowledgement from the other Party. Either Party may designate a different address by notice to the other given in accordance with this Agreement.
For Licensor
NopSec, Inc.
601 W. 26th Street, STE 357
DPT 24028
New York, NY 10001
Attn: Legal Department
12.5 Background Screening. Licensor shall comply with the background screening provisions set forth on the attached Exhibit A.
12.6 Relationship of the Parties. Licensor is an independent contractor, and nothing in this Agreement shall be construed as making them partners or as creating the relationships of employer and employee, master and servant, or principal and agent between them, for any purpose whatsoever. Neither Party shall make any contracts, warranties or representations or assume or create any other obligations, express or implied, in the other Party’s name or on its behalf.
Licensor is solely responsible for ensuring compliance with local, state and federal laws, regulations and standards (includes all countries where Licensor operates) for the hiring and managing of employees, agents, contractors or any third party personnel provided by Licensor, including but not limited to (I) background screening; and (ii) paying all wages (includes overtime) and other compensation; and (iii) withholding and payment of federal and state individual income tax, FICA, FUTA and other taxes and applicable amounts; and (iv) providing all insurance and other related benefits.
12.7 Licensor’s Agents, Contractors or Third-Party Personnel. Licensor’s use of any agents, contractors, or third-party personnel in connection with this Agreement (other than administrative workers) shall require Licensee’s advance written consent. Licensee may require a mutually acceptable confidentiality and/or services agreement with any such approved agents or contractors prior to any discussions with or engagement of such agents or contractors in connection with this Agreement.
Licensor acknowledges and agrees to the following: (i) any Licensor agent, contractor or third party personnel shall materially comply with all of the terms and conditions of this Agreement, (ii) that Licensor is responsible and primarily liable to Licensee for any act or omission of any Licensor agents, contractors or third party personnel relating to this Agreement (including without limitation a breach hereof), and (iii) that any such breach or violation shall constitute a material breach of Licensor.
12.8 Export Compliance. Licensor will comply with all applicable export control and economic sanctions laws and regulations of the United States and other governments in the performance of this agreement and in the import, export, re-export, shipment, transfer, use, operation, maintenance, or repair of Software and any related technical data and services (collectively, “Trade Control Laws”). Prior to providing Licensee any goods, software or technical data subject to export controls, Licensor shall provide written notice to Licensee specifying the nature of the controls and any relevant export control classification numbers. Licensee may decline to receive goods, software, services and/or technical data subject to export controls at a level other than EAR99/AT, or to obtain other relief from Licensor. Notwithstanding any of other provisions of this Agreement, violation by Licensor of the Trade Control Laws will render this Agreement immediately terminable in Licensee’s sole discretion, upon notice by Licensee.
12.9 Dispute Resolution. The Parties agree that, in the event of a dispute or alleged breach, the Parties will work together in good faith to resolve the matter internally by escalating it to higher levels of management and, if necessary, to use a mutually agreed upon alternative dispute resolution mechanism prior to resorting to litigation.
12.10 Compliance with Laws. Licensor warrants that it is in compliance with all applicable federal, state and local laws, regulations and standards, including but not limited to, those relating to hiring practices, the design, manufacture, testing, labeling, sale and transportation of the Software and provision of the Services. Licensor, its employees, agents, contractors or other third party personnel shall comply at all times with all applicable laws and regulations of any jurisdiction in which Licensor operates.
Licensor represents and warrants that it is aware of, understands and has complied and will comply with, all applicable U.S. and foreign anti-corruption or modern slavery laws, including without limitation, the U.S. Foreign Corrupt Practices Act (“FCPA”), the U.K. Bribery Act and the UK Modern Slavery Act (“the UK Bribery Act and the UK Modern Slavery Act Bribery Act”, together with the FCPA, (all the foregoing referred to as the “Anti-Corruption Laws”).
While handling Confidential Information and Personal Data, Licensor and Licensor’s contractors will comply with (a) all applicable United States federal, state and local laws, regulations, orders (including without limitation Title V of the Gramm-Leach-Bliley Act and the FTC Safeguard Rule, 16 C.F.R. §314) and Protection Act of 1974, as amended; (b) the Payment Card Industry Data Security Standard and (c) its obligations under all applicable laws, regulations, and orders of any non-U.S. jurisdiction to which it is subject, including the UK’s Data Protection Act 1998, if applicable, as well as the GDPR 2021 SCCs.
12.11 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of New York, without regard to (i) its conflict of law provisions, and (ii) the applicability, if any, of the United Nations Convention on Contracts for the International Sale of Goods. Each party consents to, and agrees that each party is subject to, the exclusive jurisdiction of the state and federal courts of New York, with respect to any actions for enforcement of or breach of this Agreement.
12.12 Headings. The headings to the sections of this Agreement are for ease of reference only and shall not affect the interpretation or construction of this Agreement.
12.13 Waiver and Severability. The waiver or failure of either Party to exercise in any respect any right provided for in this Agreement shall not be deemed a waiver of the subject right or any further right under this Agreement. If any provision of this Agreement or the application thereof to any Party or circumstances shall be declared void, illegal or unenforceable, the remainder of this Agreement shall be valid and enforceable to the extent permitted by applicable law. In such event, the Parties shall use their best efforts to replace the invalid or unenforceable provision with a provision that, to the extent permitted by applicable law, achieves the purposes intended under the invalid or unenforceable provision.
12.14 Expiration and Survivability. This Agreement shall expire at the end of the term set forth above, unless it is earlier terminated or extended. With respect to the subject matter of this Agreement, the Parties’ rights and obligations that, by their terms or their nature, would reasonably be expected to survive expiration or termination of this Agreement, shall survive such expiration or termination.
12.15 Electronic Signatures. Either Licensor or Licensee may execute this Agreement by electronic means and each party hereto recognizes and accepts the use of electronic signatures and records by any other party hereto in connection with the execution and storage hereof.
12.16 Reseller Relationship. This Section 12.16 applies to Reseller Purchases. The Reseller is not a party to this Agreement and is not an agent of Licensor, and the Reseller has no authority to bind Licensor or to modify this Agreement, except that the Reseller may execute Order Schedules with Licensee that become binding upon Licensor upon Licensor’s acceptance as set forth in Section 1.5. Subject only to Section 7.4, Licensor shall be directly responsible to Licensee for the performance of all of Licensor’s obligations under this Agreement, regardless of any act or omission of the Reseller or any dispute between Licensor and the Reseller, and Licensor shall not suspend or terminate Licensee’s access to the Software on account of any such act, omission or dispute except as expressly set forth in Section 7.4. Licensor shall look solely to the Reseller for payment for the Software and Services purchased through a Reseller Purchase. Licensor may disclose to the Reseller, and Licensee authorizes the Reseller to disclose to Licensor, information regarding Licensee’s orders, subscriptions and payment status solely as necessary to administer this Agreement and the Reseller Order, and such information shall otherwise remain subject to Section 3.0.
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