Terms of Services Agreement

This Terms of Services Agreement (the “Agreement”) dated as of the date (the “Effective Date”) hereof by and between Fortified Insight, Inc, a Delaware limited liability company (“Company”) and the company executing this Agreement (the “Client”).  Client and Company are also referred to as “Party” and collectively as “Parties”.

Company may, from time to time, modify the terms of this Agreement. If Client does not agree to, or cannot comply with, the modified Agreement, this Agreement and of use of the Licensed Service (as predefined below) shall terminate and be of no further force or effect. The updated terms of the Agreement will take effect upon their posting and will apply on a going-forward basis, unless otherwise provided in a notice to Client. Client’s continued use of the Licensed Service after any such update(s) constitutes acceptance of changes to this Agreement.

RECITALS

WHEREAS, Company provides a Licensed Service (as defined below) that provides data and system platform analytics and intelligence services; and

WHEREAS, the Client desires to give its Eligible Users (as defined below) the right to use the Licensed Services in accordance with the terms of this Agreement.

AGREEMENT 

NOW THEREFORE, in consideration of the mutual covenants which follow, Company and Client agree:

1.DEFINITIONS

Eligible User(s)“ means Client’s employees and authorized contractors who Client grants access and is responsible for their actions who secures the right to utilize the Licensed Service from the Client; provided such party shall automatically cease to be an Eligible User upon termination of employment, affiliation or other service agreement with the Client and their access to the Licensed Services shall be ended by Client on such termination. An Eligible User is charged with the custody, supervision, control, and security of the Licensed Service which they receive from the Client.

Client Content” means the Client’s and its Eligible Users’ proprietary information, materials, databases and other content imported or entered into the Licensed Service.

Documentation” means the then-current user documentation prepared and provided by Company to Client for help on the use of the Licensed Service, which documentation Company may update from time to time. For the avoidance of doubt, any online community site, unofficial documentation, videos, white papers, or related media, or feedback do not constitute as Documentation.

Support” means the standard maintenance or support provided by Company or its designated agents for the Licensed Service set forth in this Agreement and in such Proposals or other written agreements as mutually agreed between the Parties.

Devices” means (whether physical or virtual) a server, system, workstation, computer, mobile device, or end point upon which or through which the Licensed Services is used and/or on which is installed.

Key Person” means a person affiliated with Client, designated by Client in this Agreement, and authorized by Client to be the Client’s primary contact with Company.

Licensed Service” means collectively Company’s software as a service, updates, revisions, modifications, additions, translations, compilations of or to the foregoing.

Product” shall mean the object code copies of the software products listed in the Proposal (as defined below) and any subsequent updates and upgrades thereto, and all accompanying and associated Documentation, as installed on the laptop or desktop, provided by the Licensee and used solely for the Licensee’s internal business purpose.

 

2.SERVICES

Client is engaging Company to provide the Services as described the relevant, duly executed proposals under this Agreement (“Proposal”). Neither party will have any obligation with respect to any draft Proposal unless and until it is fully executed (signed by both parties).

2.1 Account Type. If applicable to Client’s license, Client may, at any time, upgrade the Licensed Service. The change will take effect immediately. After an upgrade, Client will be billed immediately for the additional fees due under the upgraded license. The amount due and owing for the upgraded license will be reduced by the amount Client has already paid for the applicable Term (as defined below).

2.2 Client Obligations. Client acknowledges, agrees, and warrants that: (i) Client will be responsible for Client’s and Eligible User’s activity and compliance with this Agreement, and if Client becomes aware of any violations of the terms of this Agreement, Client will immediately terminate the breaching party’s access to the Licensed Service and applicable Documentation and promptly notify Company of such violation(s); (ii) Client and Eligible Users will comply will all applicable local, state, federal, and international laws; (iii) Client will establish constant internet connection and electrical supply for the use of the Licensed Service, ensure the Licensed Service is installed on a supported platform set forth in the Documentation, and the Licensed Service is only used with public domain or properly licensed third party materials; (iv) Client will install the latest version of the Licensed Service on Devices accessing or using the Licensed Service; (v) Client is legally able to process and provide Client data (“Data”) to Company and its affiliates, including obtaining appropriate consents or rights for such processing, as outlined further herein; (vi) Client has the right to access and use Client infrastructure, including any system or network, to obtain or provide the Licensed Service and will be solely responsible for the accuracy, security, quality, integrity, and legality of the same, and; (vii) Client will  keep Client registration information, billing information, passwords and technical data accurate, complete, secure and current for duration of the Term (as defined below).

If Client is a managed service provider, Client further acknowledges, agrees, and warrants that: (i) Client has sufficient technical infrastructure, knowledge, and expertise to perform Client duties for Client’s customers and/or clients; (ii) Client will provide all sales, problem resolution, and support services to Client’s customers and/or clients; (iii) Client will be responsible for billing, invoicing and collection for Client’s customers and/or clients, and; (iv) Client will operate at Client’s own expense and risk under Client’s own name as a managed service provider.

2.3 Software Installation. It is Client’s responsibility during the Term of this Agreement to comply with the Documentation, including the configuration, operation, and installation and use requirement of the Licensed Service on Devices, and shall provide any necessary assistance to Company related thereto. Client may incur additional fees in the event that Client requests Company to reinstall Licensed Service on Devices due to an error unrelated to the Licensed Service or to transfer installation of Licensed Service to other Devices. Such additional fees, if incurred, shall be at the rate(s) mutually agreed between the Parties.

 

3.LICENSE

3.1 Grant of License. Subject to the terms of this Agreement, Company grants to Client, and Client accepts from Company, non-exclusive and non-transferable license and right to use the Licensed Service solely for its own internal business purposes, for the Trial Period (as defined below) of this Agreement and for use only by Eligible Users.  The Eligible Users will receive user IDs and create passwords to access the Licensed Service. These credentials are granted to individual, named persons and may not be shared. Client will ensure that all Eligible Users keep these credentials strictly confidential. Client may assign different access rights to Eligible Users (e.g., admin users, read-only users, etc.), as explained in the documentation (“Documentation”). Client is responsible for any and all actions taken by Eligible Users or by anyone using Client’s accounts and passwords.

3.2 Restrictions.  Client and Eligible Users are prohibited from (i) reproducing, distributing, transferring possession of, or otherwise making available the Licensed Service to any other individual who is not an Eligible User, (ii) making any modifications, adaptations, enhancements, changes, or derivative works of the Licensed Service or (iii) reverse engineering, decompiling or disassembling or accessing the Licensed Service, including for the purposes of (A) building a competitive product or service, (B) building a product using similar ideas, features, functions or graphics of the Licensed Service, or (C) copying any ideas, features, functions or graphics of the Licensed Service.  All rights not expressly granted are reserved by Company. Client will use the Licensed Service for legal purposes only, shall comply with all local, state and federal laws.

 

4.TERM AND TERMINATION

4.1 Term. The License granted by this Agreement shall start on the Effective Date and shall remain in effect for one (1) year following the Effective Date (“Initial Services Term”).  The License shall automatically renew for an unlimited number of additional one (1) year terms, unless either party provides written notice of its intention not to renew the License at least thirty (30) days prior to the end of the then current term (the renewal period with the Initial Services Term shall collectively be the “Term”).   Notwithstanding the foregoing, fees may be changed at any time if there is a change in the type or quantity of Licensed Service requested or used by Client or annually with more than thirty (30) days’ notice prior to the end of the Term.

4.2 Termination. If a party violates its obligations hereunder, the other party may terminate the Agreement after sending written notice of intent to terminate to the other party describing the non-compliance. Upon receiving such termination notice, the non-complying party shall have fifteen (15) days from the date of such notice to cure any such non-compliance.  If such non-compliance is not cured within the required fifteen (15) day period, the party providing termination notice shall have the right to terminate this Agreement as of the 16th day after the date of such termination notice as specified in such cancellation notice. Either party shall have the right to immediately terminate this Agreement upon the written notice to the other party if the other party: ceases to carry on active business; become insolvent; files or has filed against it a petition (or other document) under any bankruptcy law or similar law; proposes any dissolution, liquidation, composition; or its assets are taken into the possession of a receiver, trustee, custodian or similar agent. Upon termination or expiration of this Agreement each party will return the other parties Confidential Information (as defined below). The terms outlined in the following sections of the Agreement shall survive any expiration or termination of this Agreement: Sections 2 and 4 through 10. At the expiration of the Agreement, each party shall either return the other’s Confidential Information in its possession, including any software installed at such parties site or shall, at the disclosing party’s direction, destroy the other party’s Confidential Information, including any software installed at such parties site  and certify its destruction to the disclosing party.

 

5.FEES AND PAYMENTS

Client agrees to pay any and all fees as set forth on the Proposal. At Company’s option, Licensed Service and support may be suspended and this Agreement may be terminated until such fees are paid if such fees are more than thirty (30) days late.  Reinstatement of service and support following any such suspension or termination, shall be on such terms, and subject to reinstatement fees, as Company may determine in its sole discretion. All fees payable by Client to Company pursuant to this Agreement are stated exclusive of any taxes.  If any authority imposes any duty, tax, levy, or fee, excluding those based on Company‘s net income, upon any transaction under this Agreement, Client agrees to pay that amount as specified in an invoice or to supply such documentation.

 

6.IMPLEMENTATION AND SUPPORT

6.1 Implementation. Company shall deliver and/or perform for the Client those implementation services (“Services”) as more specifically set forth and defined in this Agreement, any Proposal, or other mutually agreed written agreements between the Parties, that may be revised or amended by the Parties. Any amendment, modification, or supplementation of this Agreement, any Proposal, or other mutually agreed written agreements between the Parties shall require documentation in writing and signed by the Parties and the procedure and process of such change shall be set forth in the Contract. This Agreement, any Proposals, or other mutually agreed written agreements between the Parties, and any amendments (e.g. change orders) thereto, shall be incorporated into and deemed a part of this Agreement. One or more representatives from Company and the Client’s Key Contact, as set forth herein or therein, will be assigned to manage Client’s implementation. These individuals will be the main contact throughout the implementation process.

6.2 Support. Company will be provide initial training, maintenance and second level support required by Client, subject to payment by Client of all applicable fees.  Client will provide first-level support by designated person(s) and additional training for Eligible Users who receives the Licensed Services. Company is obligated to provide second level support to designated person(s) only appointed by Client by emails or phone. In addition to providing additional updates and releases for no additional fee that it provides generally to its client base. Client agrees to: (i) promptly contact Company with all problems with Licensed Service; and (ii) cooperate with and provide Company with all relevant information and implement any corrective procedures that Company requires to provide Support.

 

7.DATA: PROTECTION OF YOUR DATA

7.1 Data Privacy. Client understands that Company and its Affiliates shall process Client Content in accordance with Privacy Notice (to the extent applicable) and any other agreement or addendum executed by the Parties relating thereto. Client acknowledged and agrees that the Company and its Affiliates may also process information about the Client, the Client’s Licensed Service and account, Eligible Users and End-Customers, including data from the Licensed Service, to (i) provide the Licensed Service and perform its obligations under this Agreement and services outlined in the Proposal, including, without limitation, to respond to Client support requests; (ii) demonstrate new features, products, and services, (iii) comply with the law and respond to lawful requests or legal process; (iv) professionals and advisors in order to protect the Company or Client customers’ or partners’ rights or property; and (v) act on good faith believe that such disclosure is necessary to protect the personal safety or avoid violation of applicable law or violation.

Client represents and warrants that Client has the necessary consents, permissions, authorization and right to allow Company to process and transfer data from the Licensed Service in accordance with the terms in this Agreement, including processing and transfer of data from the Licensed Service in and to United States and other countries which may have different privacy laws from Client country of residence or establishing. Client understands that is shall be the Client’s responsibility to inform the Eligible Users and end-customers about the processing, and, where required, obtain necessary consent or authorization for any personal data that is collected as part of the Licensed Service through the Client use of the Licensed Services. Company does not own, control, or direct use of the Licensed Service and only accesses such information as reasonably necessary to provide the Licensed Service (including to respond to support requests), as other authorized by Client or as required by law. Unless Company explicitly agrees otherwise in writing, Client shall not provide Sensitive Data (define below) at any time to the Licensed Service and Company will have on liability whatsoever for and in connection with the Sensitive Data. For purposes of this Agreement, “Sensitive Data” means (i) social security number, passport number, drivers license number, and or similar identifier (or any portion thereof), (ii) employment, financial, genetic, biometric or health information, (iii) racial, ethnic, political or religious affiliation, trade union membership, or information bout sexual life or sexual orientation, (iv) account passwords, (v) data of birth, (vi) criminal history, (vii) mother’s maiden name or (viii) any other information or combinations of information that is deemed sensitive under the legal framework of any applicable jurisdiction.

7.2 Aggregated Analytical Data. Company and its Affiliates may aggregate and analyze technical and other data regarding Client and Eligible Users use of the Licensed Service that is non-personally identifiable with respect to the Client, Eligible Users, and end-customers (“Aggregated Analytical Data”). Company will not identify Client, Eligible Users, or end customers as the source of any Aggregated Analytical Data. Company and its Affiliates shall process and enrich the Aggregated Analytical Data in its systems to (i) provide, support, improve, enhance and operate the Licensed Service and its availability, (ii) develop new features, products and services, (iii) compile statistical reports and record insights into the usage patterns; and (iv) perform its obligations under this Agreement.

7.3 Security of Service Data. Company uses appropriate technical and organizational measures to protect Client Content. The measures used are designed to provide a level of security appropriate to the risk of processes of the Client Content.

7.4 Data Removal. Company and its Affiliates may remove Client Content or any other data, information, or content of data or files used, stored, process or otherwise by Client and/or any Eligible Users that Company, in its sole discretion believes to be or is: (a) a Virus; (b) illegal, libelous, abusive, threatening, or harmful; (c) used for the purpose of spamming, chain letters, or dissemination of objectionable material; (d) used to cause offense, defame, or harass; or (e) infringing the intellectual property rights or any other rights of any third party. Client agrees that Client and Eligible Users are responsible for maintaining and protecting backups of Client Content or any other data directly or indirectly processed using the Licensed Service and that Company is not responsible for exportation of, the failure to store, the loss, or the corruption of any Client data.

 

8.CONFIDENTIALITY, OWNERSHIP AND INTELLECTUAL PROPERTY

8.1 Confidential Information.Confidential Information” means any information (either oral, written or digital) provided or prepared by a party (“Disclosing Party”) that is provided to, or obtained by the other party (including any director, officer, user, agent, or representative) (“Receiving Party”) including but not limited to, that which relates to research, product plans, products, services, clients, markets, software, developments, inventions, processes, designs, drawings, engineering, technical data, know-how, hardware configuration information, marketing or finances of the disclosing party. During the course of performance of this Agreement, each party may disclose to the other certain Confidential Information and each party shall hold the other party’s Confidential Information in confidence and shall use its reasonable best efforts to protect it.  Each party shall not disclose the other party’s Confidential Information to any third party, and shall use it for the sole purpose of performing under this Agreement.  The term “Confidential Information” shall not include any information which:  (a) is in the public domain at the time of disclosure or enters the public domain following disclosure through no fault of the receiving party, (b) the receiving party can demonstrate as already in its possession prior to disclosure hereunder or is subsequently disclosed to the receiving party with no obligation of confidentiality by a third party having the right to disclose it.

8.2 Company Ownership. All right, title and interest in and to the Licensed Service, and all documentation, code and logic which describes and/or comprises the Licensed Service are and shall at all times remain the sole property of Company, including all ownership rights to patents, copyrights, trademarks, trade names, goodwill and trade secrets in connection therewith.  Client’s right to use the Licensed Service is conditional upon and limited by the terms and conditions of this Agreement.  No modification by the Client of the Licensed Service or any part thereof will in any way reduce or eliminate Company’s ownership rights in and to the Licensed Service and its components. Client hereby acknowledges that the Licensed Service shall not be deemed “works made for hire” under the U.S. Copyright Act 17 U.S.C. § 101 et seq.  Client hereby assigns, transfers and conveys any and all rights, title and interests, Client may have or accrue in connection with development or use of the Licensed Service, including (without limitation) any and all ownership rights to patents, trademarks, copyrights and trade secrets in connection therewith. Company owns all patent, trademark, copyright, trade secret or other intellectual property rights in the Licensed Service as delivered, as well as in any Client-specific customizations or alternations or customizations to the Licensed Service made at the request of, or in conjunction with, Client and Client agrees to take any action or deliver any document required to confirm such ownership rights on the part of Company.

8.3 Privacy and Client Data. Company agrees that all data stored on Licensed Service remains the property of Client and Eligible Users and that in collecting, using or otherwise dealing with Client and Eligible Users’ data it will not disclose any personally identifiable information of any Client and Eligible Users or User or that identifies or is identifiable to Client and Eligible Users or its business. Client and Eligible User acknowledge that they agree to the terms of Company’s privacy policy as referenced on Company’s website. Company shall use reasonable efforts comply with all privacy and data protection laws applicable to the gathering, processing, storing and transmitting of information received from or in relation to Client and Eligible Users.

 

9.DISCLAIMERS AND LIMITATION OF LIABILITIES

9.1 Limitations of Warranty.  Company has no control over the conditions under which Client and Eligible Users use the Licensed Service and updates, and does not and cannot warrant the results obtained by such use, or the non-interruption of all services and access to be provided by Company.   ANY IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY EXCLUDED.  COMPANY DOES NOT GUARANTEE THAT (A) THE LICENSED SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT COMPANY WILL CORRECT ALL SERVICES ERRORS, (B) THE SERVICES WILL OPERATE IN COMBINATION WITH YOUR CONTENT OR YOUR APPLICATIONS, OR WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEMS, SERVICES OR DATA NOT PROVIDED BY COMPANY, AND (C) THE LICENSED SERVICES WILL MEET YOUR REQUIREMENTS, SPECIFICATIONS OR EXPECTATIONS. YOU ACKNOWLEDGE THAT COMPANY DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES. COMPANY DOES NOT MAKE ANY REPRESENTATION OR WARRANTY REGARDING THE RELIABILITY, ACCURACY, COMPLETENESS, CORRECTNESS, OR USEFULNESS OF THIRD PARTY CONTENT OR SERVICES, AND DISCLAIMS ALL LIABILITIES ARISING FROM OR RELATED TO THIRD PARTY CONTENT OR SERVICES.

9.2 Damages Limitation.  COMPANY DISCLAIMS ANY AND ALL LIABILITY FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFIT) ARISING OUT OF THIS AGREEMENT OR WITH RESPECT TO THE USE, OPERATION, OR SUPPORT OF THE LICENSED SERVICE OR ANY UPDATE OF THE LICENSED SERVICE EVEN IF COMPANY HAS BEEN APPRISED OF THE POSSIBILITY OF SUCH DAMAGES.

9.3 Indemnification. Client shall defend indemnify Company, its Users, directors, shareholders and any entities whose products are provided as integrated parts of or through Company Licensed Service (the “Indemnified Parties”) for any damages, liabilities, obligations, losses, injuries, claims, demands, penalties, costs and expenses arising from a claim due to, or connected with any act of Client or its Users or agents in relation to the use or misuse by Client of the Licensed Service.

 

10.MISCELLANEOUS

Each party acknowledges that it has read this Agreement and the exhibits attached hereto, fully understands and agrees to be bound by their terms, and further agrees that they are the complete and exclusive statement of the agreement between the parties which supersedes and merges all prior proposals, understandings, and all other agreements, oral or written, between the parties relating to this Agreement.  The provisions of all exhibits referred to in this Agreement are fully incorporated by reference.  This Agreement may not be modified or altered except by written instrument duly executed by both parties. Any notice or communication required or permitted in this Agreement shall be in writing and shall be deemed to have been duly given on the day of service if served personally or three (3) days after mailing if mailed by first class mail, registered or certified, postage prepaid, and addressed as set forth below.  This Agreement and performance under this Agreement shall be governed by the laws of the State of North Carolina. The parties hereby irrevocably submit themselves to the personal jurisdiction of the courts located in Charlotte, NC for such purpose. This Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. No third-party beneficiary is intended or created by virtue of this Agreement. No action, regardless of form, arising out of this Agreement may be brought by Client more than one (1) year after the cause of action has arisen.  The enforcement by Company of any provision in this Agreement for the protection of its trade secrets, intellectual property or any interest in the Licensed Service or its proprietary rights therein, shall survive the termination of this Agreement.  If any provision of this Agreement is invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted.  The remainder of the Agreement shall be valid and enforceable to the maximum extent possible. Client may not assign or sublicense the Licensed Service (by merger, operation of law or otherwise), without the prior written consent of Company, or its rights, duties, or obligations under this Agreement to any person or entity, in whole or in part. The waiver or failure of Company to exercise in any respect any right provided for in this Agreement shall not be deemed a waiver of any further right under this Agreement. Nothing in this Agreement will be construed as creating any joint venture, partnership or agency relationship between the parties for any purpose whatsoever or as constituting either party as the legal representative of the other, and neither party will have the right or the authority to assume, create or incur any liability or obligation of any kind, express or implied, against or in the name of or on behalf of the other.

 

11.PUBLICITY

Upon go live date of the Licensed Service, the parties may issue mutually agreed upon press release. Additionally, Client hereby agrees and consents to allow Company to use the Client name, logo, trademarks, service marks, or other proprietary identifying symbols in any web page, advertising, signage, marketing materials, brochures, or other materials in any medium.

 

12.FORCE MAJEURE

Neither party shall be in default or otherwise liable for any delay in or failure of its performance under this Agreement if such delay or failure arises by any reason beyond its reasonable control, including any act of God, any acts of the common enemy, the elements, earthquakes, floods, fires, epidemics, riots, failures or delay in transportation or communications, or any act or failure to act by the other party’s Users, agents, or contractors; provided, however, that lack of funds shall not be deemed to be a reason beyond a party’s reasonable control.  The parties will promptly inform and consult with each other as to any of the above causes which in their judgment may or could be the cause of a delay in the performance of this Agreement.