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This Master Service Agreement (this “Agreement”) is entered into between Xecurify Inc (DBA miniOrange Security Software Private Limited), and you (“Customer”) as of the Effective Date (mentioned herein).
This Master Service Agreement (this “Agreement”) shall govern Customer’s (as defined below) access and use of the Services (as defined below) provided by Xecurify. BY ACCEPTING THIS AGREEMENT, BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT OR BY DOWNLOADING, INSTALLING, OTHERWISE ACCESSING AND USING THE SERVICES, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. AS A RESULT, PLEASE READ ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY.
IF THE INDIVIDUAL ENTERING INTO THIS AGREEMENT IS ACCEPTING ON BEHALF OF A CUSTOMER OR OTHER LEGAL ENTITY, THE INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, IN WHICH CASE THE TERMS “ACCOUNT” OR “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THE TERMS AND CONDITIONS SET FORTH HEREIN, THE INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES AND/OR ANY FREE TRIAL.
a. Xecurify Cloud services: Unless otherwise specified on an applicable Order Form, Xecurify Service shall be provided as Xecurify -hosted, cloud Service. We as a service provider grant to our Customer a non-exclusive and non-transferable right to access and use the Service for the Term.
b. Customer-Hosted applications: Where an applicable Order Form sets Customer-Hosted Services, subject to the provisions of this Agreement, Xecurify grants its Customer a non-exclusive and non-transferable license (with no right to sublicense) to install and use the software/application for the Term. In respect of such Customer-Hosted services/application: (i) Customer is responsible for installing and implementing the Customer-Hosted software/application and any updates, enhancements or modifications, except for any Professional Services set forth on an applicable Order Form (i.e., implementation). (ii) Customer is responsible for providing the Environment and ensuring the Environment functions properly, and for implementing appropriate data backup and security measures. “Environment” means the systems, networks, servers, equipment, hardware, software and other material specified in Documentation or an Order Form on which, or in connection with which, the Customer–Hosted Service will be used.
a. Ordering: For the Customer Services purchased, Xecurify shall grant Customer Account access or use of the Service(s) and Professional Service(s) during their associated Term, including access and use of all of the Content contained in or made available through the Service(s), Customer agrees that its purchase is not contingent on the delivery of any future functionality or features, or dependent upon any oral or written public comments regarding future functionality or features. Further, Customer agrees that it shall use the Service(s) solely for internal business purposes, and access and use of the Service(s) shall be limited to Account Users. Affiliates of either party may use our services applications and conduct business under this Agreement by executing an Order Form or other document that references this Agreement’s terms.
This Agreement may include an initial schedule or Order which shall be annexed to the agreement on a case to case basis depending upon the requirements of the products and services raised by the customer. Customers may purchase additional Software licenses and/or services by executing a follow-on Order and by paying additional fees/cost, as mutually accepted by the parties. A purchase order issued by Customer shall be in writing, in printed or as per standard terms contained in any purchase order. The purchase order shall identify the Software being ordered, and shall contain the shipping and invoicing locations, and shall be subject to acceptance by Xecurify. In the event, where the customer in its purchase order fails to provide the above mentioned particulars, Xecurify reserves a right to reject such purchase orders.
b. Account Setup: To access the Service, the Customer must establish its Account, which may only be accessed and used by its Account Users. To set up an Account User, the Customer agrees to provide true and accurate information for such Account Users. Each Account User must establish and maintain personal, non-transferable Access Credentials, which shall not be shared with, or used by, any other individual. Customers must not create Account User(s) in a manner that intends to or has the effect of avoiding Fees, circumvents thresholds with the Account, or intends to violate the Agreement.
c. Customers Responsibilities: With full responsibility for its Account Users, Customer shall: (i) take appropriate action to ensure that non-Account Users do not access or use the Service; (ii) ensure that all Account Users comply with all of the terms and conditions of this Agreement; (iii) be solely responsible for the accuracy, and appropriateness of all users Data created by Account Users using the Service; (iv) access and use the Service solely in compliance with the Documentation and all applicable laws, rules, directives and regulations (including those relating to export, homeland security, anti-terrorism, data protection and privacy); (v) allow e-mail notifications generated by the Service on behalf of Customers Account Users to be delivered to Customer’s Account Users; and (vi) promptly notify Xecurify if Customer becomes aware of any unauthorized use of its Account.
Customers shall ensure to read the End User License Agreement of the product before they sign up or purchase.
d. Usage Restrictions: Customer agrees that it shall not, and shall not permit any Third Party, its affiliates to, directly or indirectly: (i) modify, copy, create derivative works or attempt to derive the source code of the Service; (ii) assign, sublicense, distribute or otherwise make available the Service, to any Third Party or affiliates including on a timesharing, software-as-a-service or other similar basis; (iii) share Access Credentials or otherwise allow access or use the Service to provide any service bureau services or any services on a similar basis; (iv) use the Service in a way not authorized in writing by Xecurify or for any unlawful purpose; (v) use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of Third Party privacy rights; (vi) attempt to tamper with, alter, disable, override, or circumvent any security, reliability, integrity, accounting or other mechanism, restriction or requirement of the Service; (vii) remove, obscure or alter any copyright, trademark, patent or proprietary notice affixed or displayed by or in the Service; (viii) interfere with or disrupt the integrity or performance of the Service or the data contained therein; (ix) access or use the Service in order to replicate applications, products or services offered by Xecurify and/or otherwise build a competitive product or service, copy any features, functions or graphics of the Service or monitor the availability and/or functionality of the Service for any benchmarking or competitive purposes; (x) under any circumstances, through a Third Party application, a Customer Application or otherwise, repackage or resell the Service, or any Xecurify data; (xi) store, manipulate, analyze, reformat, print, and display the Content for personal use; and (xii) upload or insert code, scripts, batch files or any other form of scripting or coding into the Service. Notwithstanding the foregoing restrictions, in the event Customer has purchased a software/application for Commercial Use (as such term is defined below), Customer shall be permitted to use the Service to provide Third Party services in cases where such Third Parties access the Customer provided applications or services, but where such Third Parties do not have the ability to install, configure, manage or have direct access to the Services. Xecurify hereby agrees, subject to payment of the applicable fees, to permit such use and the terms of this Agreement, including references to “internal use” and/or “internal business operations” shall be deemed to include and permit such use (hereafter referred to as “Commercial Use”).
e. Additional Guidelines: Xecurify reserves the right to establish or modify its Service offerings, general practices and limits concerning use of the Service, and if applicable provide alternative Service offerings and practices, with approximately thirty (30) days’ prior notice. Xecurify also reserves the right to block IP addresses originating a Denial of Service (DoS) attack. Xecurify shall notify its Customer, should this condition exist and inform Customer of its action. Once blocked, an IP address shall not be able to access the Service and the block may be removed once Xecurify is satisfied that corrective action has taken place to resolve the issue.
f. Beta Service: From time to time, Xecurify may make Beta Service available to Customers at no charge. Customers may choose to try such Beta Service or not at its sole discretion. Use of Beta Service is at Customer’s sole risk and may contain bugs or errors. Customers may discontinue use of the Beta Service at any time, in its sole discretion. Further, Xecurify may discontinue any and all Beta Service availability at any time in its sole discretion without notice. NOTWITHSTANDING THE REPRESENTATIONS, WARRANTIES AND DISCLAIMERS IN SECTION 6, BETA SERVICE AND DOCUMENTATION, ARE PROVIDED ON AN “AS-IS'' AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND. XECURIFY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. XECURIFY SHALL HAVE NO INDEMNIFICATION OBLIGATIONS AND NO LIABILITY OF ANY TYPE WITH RESPECT TO THE BETA SERVICE UNLESS SUCH EXCLUSION IS UNENFORCEABLE UNDER APPLICABLE LAW.
a. Xecurify Ownership of the Service: Customer acknowledges and agrees that Xecurify and its Licensors retains all ownership right, title, and interest in and to the Service, the Documentation and the Content, including without limitation all corrections, enhancements, improvements to, or derivative works thereof (collectively, “Derivative Works”), and in all Intellectual Property Rights therein or thereto. To the extent any Derivative Work is developed by Xecurify based upon ideas or suggestions submitted by Customer to Xecurify, Customer hereby irrevocably assigns all rights to use and incorporate Customer’s feedback, including but not limited to suggestions, enhancement requests, recommendations and corrections (the “Feedback”) relating to the Service, together with all Intellectual Property Rights related to such Derivative Works. Nothing contained in this Agreement shall be construed to convey to Customer (or to any party claiming through Customer) any Intellectual Property Rights in or to the Service, the Documentation and the Content, other than the rights expressly set forth in this Agreement. Except for the rights expressly granted under this Agreement, If a Customer purchases Professional Services, Xecurify grants to Customer a worldwide, non-exclusive, non-transferable, non-sublicensable right to use the Professional Services solely for Customers use with the Service. No rights are granted to Customer hereunder other than as expressly set forth in this Agreement.
b. Customer Data: Xecurify acknowledges and agrees that Customer retains all ownership right, title, and interest in and to its Data, including all Intellectual Property Rights therein or thereto. Notwithstanding the foregoing, Customer hereby grants Xecurify and its Affiliates and applicable contractors a worldwide, a non-exclusive, royalty-free license, limited-term license to: (i) host, access, display, copy, transmit and otherwise use all or any portion of the Customer Data to fulfill its obligations under this Agreement. In addition, Customer grants Xecurify a non-exclusive, royalty-free right to use aggregated and de-identified data generated and/or derived from the Customer Data (the “De-Identified Data”) in order to improve the Service and Xecurify’s performance hereunder.
c. Feedback: Xecurify shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into its products,services and any Feedback. Xecurify shall have no obligation to use Feedback, and Customers shall have no obligation to provide Feedback.
To the extent Professional Services are included in the applicable Order Form and/or described in one or more statements of work, Customer agrees to abide by, and with the provision that refers to End User License Agreement by Xecurify. Each statement of work shall be effective, incorporated into and form a part of this Agreement when duly executed by an authorized representative of each of the parties. Each statement of work shall (i) describe the fees and payment terms with respect to the Professional Services being provided pursuant to such statement of work, (ii) identify any work product that will be customized pursuant to such statement of work, and (iii) if applicable, sets forth each party’s respective ownership and proprietary rights with respect to any work product custom made pursuant to such statement of work.
Service availability for access and use by Customer(s) excludes unavailability when due to: (a) any access to or use of the Service by Customer or any Account User that does not strictly comply with the terms of the Agreement or the Documentation; (b) any failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under the Agreement; (c) Customer’s or its Account User’s Internet connectivity; (d) Force Major Event; (e) any failure, interruption, outage, or other problem with Internet service or; (f)Emergency Downtime; means Xecurify becomes aware of a vulnerability or failure based on risk assessment. It also includes failure of the hosting provider of the Xecurify Cloud Services, in this case AWS Server, which is not under control of Xecurify. Xecurify deems to require immediate remediation and, as a result, the Cloud Service is made temporarily unavailable in order for Xecurify to address the vulnerability. Emergency Downtime is not considered Downtime for purposes of this SLA, and will not be counted towards any Downtime Periods. (g) Scheduled Downtime; any disabling, suspension, or termination of the Service by Xecurify pursuant to the terms of the Agreement. “Scheduled Downtime” means, with respect to any applicable Service, the total amount of time (measured in minutes) during an applicable calendar month when such Service is unavailable for the majority of Customer’ Account Users due to planned Service maintenance. Xecurify notifies 7 days prior to commencement of such Downtime. There will be no more than 12 hours of Scheduled Downtime per calendar year.
In connection with Customer’s use of the Service, at Customer’s discretion, any such activity, and any terms, conditions, warranties or representations associated with such Third-Party activity, shall be solely between Customer and the applicable Third Party. Xecurify shall have no liability, obligation or responsibility for any such Third-Party correspondence, purchase, promotion, data exchange, integration or interaction. Xecurify does not warrant any Third-Party providers or any of their products or services, whether or not such products or services are designated by Xecurify as “certified,” “validated,” “premier” and/or any other designation. Xecurify does not endorse any sites on the Internet that are linked through the Service.
Customer is the owner of all Third-Party content and data loaded into the Customer Account. As the owner, it is the Customer's responsibility to make sure it meets its particular needs. Xecurify shall not comment, edit or advise Customer with respect to such Third-Party content and data in any manner.
The Fees for the Software and Professional (defined), and Support and Maintenance Services are set forth in an email/purchase Order. The fees required to be paid hereunder do not include any amount for taxes, duties or import/export fees. If withheld by a government entity, Customer shall bear for all sales, use, VAT, excise, property, or other taxes or levies, duties or import/export fees which Xecurify is required to collect or remit to applicable tax authorities (including any interest or penalties thereon). Unless Customer provides Xecurify a valid exemption certification from the applicable taxing authority, Customer shall pay to Xecurify or its agents the amount of any such tax. Customer has to pay advance payment unless mutually agreed for any payment terms between Customer and Xecurify, Customer agrees to pay Xecurify all, and Balance fees within thirty (30) days of the invoice date. Except as otherwise specifically provided in this Agreement, all Fees paid and payable to Xecurify hereunder are non-cancellable and non-refundable. If Customer fails to pay any Fees due under this Agreement by the due date, in addition to any other rights or remedies it may have under this Agreement or by matter of Law, (i) Xecurify reserves the right to suspend the Service upon thirty (30) days written notice, until such amounts are paid in full, and (ii) Xecurify will have the right to levy additional interest equal to the amount of the used services.
Unless otherwise specified in the applicable Statement of Work, upon invoice from Xecurify Customer will reimburse Xecurify for all pre-approved, reasonable expenses incurred by Xecurify while performing the Professional Services, including without limitation, transportation services, lodging, and meal and out-of-pocket expenses related to the provision of the Professional Services. Xecurify will include reasonably detailed documentation of all such expenses with each related.
Fess do not include and may not be reduced to account for any taxes including any local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder.
In the event Customer purchases the services (including any renewals thereof) through an authorized partner of Xecurify, the terms and conditions of this Agreement shall apply and supersede any other agreement except for any terms and conditions related to fees, payment or Taxes. Such terms and conditions shall be negotiated solely by and between Subscriber and such authorized Partner. In the event Customer ceases to pay the Partner, or terminates its agreement with the reseller, Xecurify shall have the right to terminate Customer’s access to the Service at any time upon thirty (30) days’ prior written notice to Customer unless Customer and Xecurify have agreed otherwise in writing.
Otherwise in writing Each party represents that :(i) it has full right, title and authority to enter into this Agreement; and (ii) this Agreement constitutes a legal, valid and binding obligation, enforceable against it in accordance with its terms.
Xecurify warrants that during the applicable Term: (i) the Service shall perform materially in accordance with the applicable Documentation; (ii) Xecurify will employ then-current, industry-standard measures to test the Service to detect and remediate Malicious Code designed to negatively impact the operation or performance of the Service, and (iii) the overall functionality of the Service will not be materially decreased as described in the applicable Documentation. Xecurify shall use commercially reasonable efforts to correct the non-conforming Service at no additional charge to Customer, and in the event Xecurify fails to successfully correct the Service within a reasonable time of receipt of written notice from Customer detailing the breach, then Customer shall be entitled to terminate the applicable Order Form as to the non-conforming Service and receive an immediate pro rata refund of any prepaid, unused Fees for the non-conforming Service. The remedies set forth in this subsection will be Customer’s sole remedy and Xecurify’s entire liability for breach of these warranties unless the breach of warranties constitutes a material breach of this Agreement and Customer elects to terminate this Agreement in accordance with section 9.2 entitled “Termination”. The warranties set forth in this subsection shall apply only if the applicable Service has been utilized in accordance with the Documentation, this Agreement and applicable Law.
Xecurify warrants that the Software will materially confirm the accompanying documentation for a period of 10 days from the date of initial delivery.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH UNDER SECTION 5.2, Xecurify AND ITS SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES RELATING TO THE SERVICE, PROFESSIONAL SERVICES OR OTHER SUBJECT MATTER OF THIS AGREEMENT, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE PARTIES ARE NOT RELYING AND HAVE NOT RELIED ON ANY REPRESENTATIONS OR WARRANTIES WHATSOEVER REGARDING THE SUBJECT MATTER OF THIS AGREEMENT, EXPRESS OR IMPLIED. XECURIFY MAKES NO WARRANTY REGARDING ANY NON-Xecurify APPLICATION WITH WHICH THE SERVICE MAY INTEROPERATE.
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES TO Xecurify OR TO AN Xecurify’S PARTNER HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE (12)-MONTH PERIOD PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION SHALL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER’S AND CUSTOMER’S AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE ‘FEES’ SECTION ABOVE AND WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
IN NO EVENT WILL EITHER PARTY (OR Xecurify’S THIRD PARTY LICENSORS) BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY FOR ERROR OR INTERRUPTION OF USE, LOSS OR INACCURACY OR CORRUPTION OF DATA, COVER, LOST PROFITS OR REVENUES, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING EXCLUSIONS WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
Xecurify shall subject to section 7.3 defend and indemnify Customer from any and all Claims brought against Customer alleging that the Service, as provided by Xecurify to Customer under this Agreement, infringes any patent, copyright, or trademark or misappropriate any trade secret of any third party (each, an “Infringement Claim”). Xecurify will indemnify Customer for all damages, costs, reasonable attorneys’ fees finally awarded by a court of competent jurisdiction, or paid to a third party in accordance with a settlement agreement signed by Xecurify, in connection with an Infringement Claim. In the event of any such Infringement Claim, Xecurify may, at its option: (i) obtain the right to permit Customer to continue using the Service, (ii) modify or replace the relevant portion(s) of the Service with a non-infringing alternative having substantially equivalent performance within a reasonable period of time, or (iii) terminate the applicable Order Form as to the infringing Service and provide a pro rata refund of any prepaid, unused Fees for such infringing Service. Notwithstanding the foregoing, Xecurify will have no liability for any Infringement Claim of any kind to the extent that it results from: (1) modifications to the Service made by a party other than Xecurify, (2) the combination of the Service with other products, processes or technologies (where the infringement would have been avoided but for such combination), or (3) Customer’s use of the Service other than in accordance with the Documentation or this Agreement.
Subject to Section 7.3, Customer shall defend Xecurify from any and all Claims brought against Xecurify alleging a violation of a third party’s rights arising from Customer's provision or use of the Customer Data. Customer will indemnify Xecurify for all damages, costs, reasonable attorneys’ fees finally awarded by a court of competent jurisdiction, or paid to a third party in accordance with a settlement agreement signed by Customer, in connection with such Claims.
The party seeking indemnity under this Section 7 ("Indemnitee") must give the other party ("Indemnitor") the following: (a) prompt written notice of any Claim for which the Indemnitee intends to seek indemnity, (b) all cooperation and assistance reasonably requested by the Indemnitor in the defense of the Claim, at the Indemnitor's sole expense, and (c) sole control over the defense and settlement of the Claim, provided that the Indemnitee may participate in the defense of the Claim at its sole expense and any settlement by the Indemnitor does not include an admission of liability by the Indemnitee.
Xecurify can use Customer’s name to identify Customer as an Xecurify customer of the Service, including on Xecurify’s public website. Xecurify agrees that any such use shall be subject to Xecurify complying with any written guidelines that Customer may deliver to Xecurify regarding the use of its name and shall not be deemed Customer’s endorsement of the Service.
This Agreement will commence on the Effective Date set forth on the Order Form and continues until all Service subscriptions hereunder have expired or have been terminated (the “Services Term”). Thereafter, except as stated on an applicable Order Form, the Services Term shall automatically renew for additional periods equal to the expiring subscription term or one year, whichever is longer, unless either party has provided written notice of its intent to terminate the Service subscription not less than thirty (30) days prior to the expiration of the then-current Services Term applicable to the Service subscription.
Either party may terminate this Agreement (in whole or with respect to an Order Form or purchased from a reseller) by notice to the other party if (i) the other party commits a material breach of this Agreement and fails to cure such breach within thirty (30) days (except in the case of a breach of Section 7 in which case no cure period will apply) or (ii) 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.
Xecurify may, at its option, and without limiting its other remedies, suspend (rather than terminate) any Services if Customer breaches the Agreement (including with respect to payment of Fees) until the breach is remedied.
Upon expiration or termination of this Agreement for any reason, all rights and subscriptions granted to Customer (including all Order Forms) will immediately terminate and Customer will (i) cease using the Service and Xecurify Confidential Information, applicable software and Documentation.(ii) cease using the Maintenance Services associated with the applicable License(s) (iii) give Xecurify a written certification that Customer has complied with all the foregoing obligations, and (v) Termination for any reason other than termination for cause by Customer pursuant to Section 9.2(i) shall not relieve Customer of the obligation to pay all future amounts due under all Order Forms.
Upon Termination of this agreement, sections titled “Definitions,” “Confidentiality,” “Ownership and Feedback,” “Fees, Expenses, and Taxes,” “Disclaimer,” “Limitation of Liability,” “Indemnification,” “Term, Termination, and Effect of Termination,” and “General” shall survive and continue in full and effect.
Each party agrees to protect the Confidential Information (as defined below) of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event using less than a reasonable standard of care. A party shall not disclose or use any Confidential Information of the other party for any purpose outside the scope of this Agreement, without the disclosing party’s prior written permission. A party may disclose the other party’s Confidential Information to its employees, contractors, agents, and Affiliates that have signed an agreement containing disclosure and use provisions substantially similar to those set forth herein and have a “need to know” in order to carry out the purpose of this Agreement. Confidential Information shall not include any information that (a) is or becomes generally known to the public, other than as a result of the act or omission of the receiving party; (b) was rightfully known to a party prior to its disclosure by the other party without breach of any obligation owed to the other party; (c) is lawfully received from a third party without breach of any obligation owed to the other party; or (d) was independently developed by a party without breach of any obligation owed to the other party. If a party is compelled by law to disclose Confidential Information of the other party, it shall provide prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the other party's cost, if the other party wishes to contest the disclosure. Due to the unique nature of the parties’ Confidential Information disclosed hereunder, there may be no adequate remedy at law for a party’s breach of its obligations hereunder, and any such breach may result in irreparable harm to the non-breaching party. Therefore, upon any such breach or threat thereof, the party alleging breach shall be entitled to seek injunctive and other appropriate equitable relief in addition to any other remedies available to it. Confidential Information is and shall remain the property of the disclosing party.
Each party will comply with all laws and applicable government rules and regulations insofar as they apply to such parties in its performance of this Agreement’s rights and obligations.
Xecurify is permitted to: (i) include Customer's name and logo in accordance with Customer's trademark guidelines; and (ii) list the Services selected by Customer, in public statements and client lists. Customers agree to participate in press releases, case studies and other collateral using quotes or requiring active participation, the specific details of which shall be subject to mutual consent.
Notices to either Party shall be in writing to the address indicated in this Agreement (or as later amended) and deemed effective when received.
The parties shall be independent contractors under this Agreement, and nothing herein shall constitute either party as the employer, employee, agent, or representative of the other party, or both parties as joint venturers or partners for any purpose. There are no third-party beneficiaries under this Agreement.
Xecurify may utilize a subcontractor or other third party to perform its duties under this Agreement so long as Xecurify remains responsible for all of its obligations under this Agreement.
No failure or delay by either party in enforcing any of its rights under this Agreement shall be construed as a waiver of the right to subsequently enforce any of its rights, whether relating to the same or a subsequent matter.
Neither the rights nor the obligations arising under this Agreement are assignable or transferable by Customer or Xecurify without the other party’s prior written consent, which shall not be unreasonably withheld or delayed, and any such attempted assignment or transfer shall be void and without effect.
Notwithstanding the foregoing, either party may freely assign this Agreement in its entirety (including all Order Forms), upon notice and without the consent of the other party, to its successor in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, provided that all fees owed and due have been paid (in the case of an assignment by Customer) and the assignee agrees to be bound by all the terms of this Agreement. Xecurify may subcontract its obligations hereunder to a third party, provided that Xecurify shall remain liable for any breach thereof.
Neither party will be liable for, or be considered to be in breach of or default under this Agreement (other than with respect to payment obligations) on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, including denial-of-service attacks, strikes, shortages, widespread security breaches (e.g., heartbleed bug), riots, fires, flood, storm, earthquakes, explosions, acts of God, war, terrorism, and governmental action (“Force Majeure”) so long as that party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.
Each party represents that it is not named on any U.S. government list of persons or entities with which U.S. persons are prohibited from transacting, nor owned or controlled by or acting on behalf of any such persons or entities, and Customer will not permit any User to access or use the Service in any manner that would cause any party to violate any U.S. or international embargo, export control law, or prohibition.
This User Agreement shall be construed in accordance with the applicable laws of the USA. The Courts at Wyoming USA shall have exclusive jurisdiction in any proceedings arising out of this agreement. Customers will use the Xecurify Services and Documentation in compliance with all applicable laws and regulations. Xecurify will comply with all applicable laws and regulations in its performance of this Agreement.
No person or entity not a party to the Agreement shall be deemed to be a Third-Party beneficiary of this Agreement or any provision hereof.
The invalidity of any portion of this Agreement shall not invalidate any other portion of this Agreement and, except for such invalid portion, this Agreement shall remain in full force and effect.
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 shall immediately notify Xecurify.
The Section headings contained in this Agreement are solely for the purpose of reference, are not part of the agreement of the parties, and shall not affect in any way the meaning or interpretation of this Agreement. Any reference to any federal, state, local or foreign statute or law shall be deemed to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise.
This Agreement, including any applicable Order Form, is the entire agreement between Xecurify and Customer regarding customer’s use of the Service and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in any purchase order or in any other order documentation is void. In the event of any conflict or inconsistency between the documents, the order of precedence shall be (1) the applicable Order Form / email Order (2) any schedule or addendum to this Agreement, and (3) the content of this Agreement.
If Customer uses a Free Trial, then the applicable provisions of this Agreement will govern that Free Trial, and Xecurify will make such Free Trial available to Customer on a trial basis, free of charge, until the earlier of (a) the end of the free trial period for which Customer agreed to use such Free Trial, (b) the start date of any Service subscription purchased by Customer for such Service, or (c) termination of the Free Trial by Xecurify in its sole discretion. A free trial period may be extended upon mutual agreement by Xecurify and Customer. Notwithstanding anything to the contrary in this Agreement, a Free Trial is provided “AS IS.” Xecurify MAKES NO REPRESENTATION OR WARRANTY AND SHALL HAVE NO INDEMNIFICATION OBLIGATIONS WITH RESPECT TO A FREE TRIAL. Xecurify SHALL HAVE NO LIABILITY OF ANY TYPE WITH RESPECT TO A FREE TRIAL, UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 6 (“LIMITATION OF LIABILITY”), CUSTOMER SHALL NOT USE THE FREE TRIAL IN A MANNER THAT VIOLATES APPLICABLE LAWS AND WILL BE FULLY LIABLE FOR ANY DAMAGES CAUSED BY ITS USE OF A FREE TRIAL. ANY DATA AND CONFIGURATIONS ENTERED INTO CUSTOMER’S FREE TRIAL ACCOUNT MAY BE PERMANENTLY LOST UPON TERMINATION OF THE FREE TRIAL.
Xecurify may revise the terms of this Agreement from time-to-time and shall post the most current version of this Agreement on its website. If a revision meaningfully reduces Customer’s rights, Xecurify shall notify Customer.
means any user name, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Service.
means Customer’s specific account where Customer subscribes to access and use Service(s).
means each employee, consultant and contractor of Customer that has been granted Access Credentials.
means, with respect to Xecurify or Customer, any legal entity that (i) controls, (ii) is controlled by or (iii) is under common control of such legal entity. A legal entity shall be deemed to “control” another legal entity if it has the power to direct or cause the direction of the management or policies of such legal entity, whether through the ownership of voting securities, by contract, or otherwise.
means Xecurify Service or functionality that may be made available to Customer to try at its option at no additional charge that is clearly designated as beta, pilot, limited release, early adoption, non-production, sandbox, evaluation or a similar description.
means all of the Xecurify audio and visual information, documents, content, materials, products and/or software contained in, or made available through, the Service.
means any Xecurify service or functionality that Xecurify makes available to Customer to try at Customer’s option, at no additional charge, and which is clearly designated as “beta,” “trial,” “pre-GA,” “pilot,” “developer preview,” “free trial,” “evaluation,” “proof of concept (POC),” or by a similar designation.
mean any third-party claims, demands, suits or proceedings.
means (a) Customer Data; (b) the Service, Documentation, and the terms and conditions of this Agreement and all Order Forms including pricing; and (c) each party’s technical and business information (including but not limited to hardware, software, designs, specifications, techniques, processes, procedures, research, development, projects, products or services, business and marketing plans or opportunities, finances, vendors, penetration test results and other security information, defect and support information and metrics, and third party audit reports and attestations) that is designated by the disclosing party as confidential or the receiving party should reasonably know is confidential given the nature of the information and circumstances of disclosure.
means all electronic data submitted by or on behalf of Customer to the Service.
means Xecurify’s user guides and other end user documentation for the applicable Service available on the online help feature of the Service, as may be updated by Xecurify from time to time, including without limitation the materials available at www.miniorange.com.
means a web-based, offline, mobile, or other software application functionality that is provided by a Customer or a third party and interoperates with a Service.
means the earlier of the last date this Agreement is executed or the first date of Customer’s access or use of the Service or Free Trial in any manner, as applicable.
means suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or its Users relating to the features, functionality or operation of the Service, or the Professional Services.
means any local, state, or national law, treaties and/or regulations applicable to a respective party.
means viruses, worms, time bombs, Trojan horses and other malicious code, files, scripts, agents or programs.
means a reseller or distributor that has an agreement with Xecurify that authorizes them to resell Xecurify software and/or services.
means Company’s ordering document or an order of requirement with respect to the software which is raised by the customer that specifies the Service, Training Services, Support Services, and/or Professional Services purchased by Customer under this Agreement that is entered into by Customer (or any Affiliate) and Xecurify (or any Affiliate). Email Order, Order form, any ordering document shall be subject solely to and incorporate by reference the terms of this Agreement.
means implementation and configuration services provided by Xecurify in connection with the Service, as described more fully in a Statement of Work. Professional Services shall not include the Service.
means the products and services purchased by Customer and provided by Xecurify, as specified on an Order Form. “Service” excludes the Professional Services, Free Trial Service, and Non-Xecurify Applications.
means a document that describes certain Professional Services purchased by a Customer under this Agreement. With respect to Customer, the “Xecurify Services” includes the plan and/or products identified in the Statement of work/ Quote.
means the support services provided by Xecurify in accordance with Xecurify’s then-current support plan as requested by the customer via email and as identified in email order, In the event that the level of support is not identified in the Order Form, Customer shall receive a “basic” level of support that is included in the Service.
has the meaning set forth in Section 9.2.
means individuals (including non-human devices, such as applications or services) who are authorized by Customer to use the Service, for whom a subscription to the Service has been procured. Users may include, for example, Customer’s and its Affiliates’ employees, consultants, clients, external users, contractors, agents, and third parties with which Customer does business.
means a party other than Subscriber or Xecurify.