Last updated January 8, 2019
THE AGREEMENT IS LEGALLY BINDING ON THE LEGAL ENTITY ON WHOSE BEHALF THIS AGREEMENT IS BEING ENTERED INTO(“CUSTOMER”) AND ON EACH USER. BY CLICKING THE “PLACE ORDER” BUTTON BELOW, CUSTOMER ACKNOWLEDGES THAT IT HAS READ, UNDERSTANDS, AND AGREES TO ALL OF THE TERMS AND CONDITIONS OF THE AGREEMENT. THIS AGREEMENT IS ENTERED INTO BETWEEN OSTENDIO AND THE COMPANY OR OTHER LEGAL ENTITY ON WHOSE BEHALF YOU ARE ACCEPTING THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE WITH ANY OF THE TERMS AND CONDITIONS OF THE AGREEMENT, DO NOT ACCESS OR REGISTER TO ACCESS OR USE THE SERVICE. THE PERSON CLICKING THE “PLACE ORDER” BUTTON BELOW REPRESENTS AND WARRANTS THAT HE/SHE HAS FULL AUTHORITY TO LEGALLY BIND CUSTOMER TO THESE TERMS AND THE AGREEMENT. IF SUCH PERSON DOES NOT (i) AGREE TO ALL OF THE TERMS AND CONDITIONS OF THE AGREEMENT AND (ii) HAVE THE AUTHORITY TO LEGALLY BIND CUSTOMER TO THESE TERMS AND THE AGREEMENT, DO NOT CLICK THE “PLACE ORDER” BUTTON BELOW OR ATTEMPT TO ACCESS OR USE THE SERVICE.
1. The Service
(a) Acceptance, Access, and Availability. By clicking the “PLACE ORDER” button on the Ostendio Online Registration form or by accessing or using the Service, Customer agrees to be bound by this Agreement. Ostendio reserves the right, with or without notice, to amend or modify these Terms, and Customer agrees to be bound by any amendment or modification. If we make any material changes, we will notify you or our Customer by email sent to the e-mail address on your account or by means of a notice on the Ostendio website prior to the change becoming effective. Modifications or amendments to these Terms shall be effective at the time they are posted on the Ostendio website. Subject to Customer’s prepayment of all applicable fees as set forth in the online Ostendio Price List, Ostendio will make the Service available to (a) Customer and (b) individuals who are authorized by Customer to use the Service on behalf of the Customer and who have been supplied user identification and passwords by Customer (or by Ostendio at Customer’s request), including employees of Customer or any Customer Affiliate, consultants, suppliers, contractors, and agents of Customer (“Users”). “Affiliate” means, with respect to a party, any entity which directly or indirectly controls, is controlled by or is under common control with such party, wherein “control”, for purposes of this definition, means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of such party or the right to manage such party’s business affairs. Ostendio hereby grants Customer and its designated number of Users a limited, non-exclusive right to access and use the Service, in each case during the Subscription Term and in accordance with this Agreement (the “Subscription”). Customer’s Subscription is not dependent on any future functionality or features or any public comments or other disclosure made by Ostendio with respect thereto. “Service” means the online, website application provided by Ostendio via https://www.ostendio.com or http://customername.myvcm.net or at such other designated URL as Ostendio may assign from time to time (including all components thereof, on an individual and collective basis). The Service may incorporate products, services, documents, and/or other materials that Ostendio licenses or purchases from third parties. Customer’s right to use any such third party products, services, documents, and/or other materials are subject to the rights of, and limited by agreements with, such third parties as governed by the agreements and conditions set forth at https://ostendio.com/ostendio_eulas/. Prior to accessing and/or using any third-party products, services, documents, and/or other materials, Customer will be required to agree to the terms and conditions of the applicable third-party agreements with respect to any such third-party products, services, documents, and/or other materials purchased, used, and/or licensed by Customer.
(b) Subscription Term. Customer’s initial Subscription term for the Service commences on the day the initial registration has been completed or the User login names and a password are made available to Customer to access the Service, whichever is sooner (the “Subscription Start Date”). The Subscription will continue for the time period requested when the order is placed. Monthly Subscriptions will automatically renew for successive one (1) month terms on the monthly anniversary of the Subscription Start Date and annual Subscriptions will automatically renew for successive one (1) year terms on the annual anniversary of the Subscription Start Date (each, a “Renewal Term”). Unless either party gives the other party written notice of non-renewal at least thirty (30) days prior to the end of the initial Subscription term or the Renewal Term then in effect, each Renewal Term will be at the Service subscription price in effect on a generally commercially available basis at the time of the renewal, based on the actual number of Users of the Service and product functionality being used by Customer. For any Renewal Term, Ostendio shall have the right at its discretion to: (i) charge Customer using the credit card on file with Ostendio if retained by Ostendio, (ii) request that Customer promptly pay by credit card if Ostendio has not retained any Customer credit card information, or (iii) send Customer an invoice. The “Subscription Term” collectively means the initial Subscription term plus all Renewal Terms.
(c) Limits on Authorized Users. The Subscription price is based on the number of Users which have the right to use the Service. When subscribing to use the Service, Customer shall pay fees for a specific number of Users, which are counted based on the number of then-authorized Users for seats or logins for the Service. Users may include Customer’s and its Affiliate’s employees, consultants, vendors, and contractors. Customer may add Users for additional fees. All use of the Service must be in accordance with the applicable Ostendio documentation and policies. Customer is responsible for all use of the Service by its Users and their compliance with this Agreement. Ostendio and its subcontractors have the right to monitor or audit remotely the number of Users of the Service. If Customer exceeds the number of Users set forth in the online Ostendio Price List agreed to by Customer, Ostendio will have the right to charge Customer Ostendio’s then-current subscription fee for each such additional User and, for each Renewal Term, Ostendio will have the right to charge Customer Ostendio’s then-current subscription fee that applies to the number of Users.
(d) Customer may substitute and/or reassign any User’s use of and/or access to the Service. More specifically, if, for example, a Customer employee who is an authorized User of the Service leaves Customer’s employment for any reason, Customer shall have the right to reassign such employee’s Subscription to another Customer employee without incurring any additional subscription fee, but Customer shall not be entitled to any refund for the subscription fee paid for such departing employee’s Subscription. Additionally, the annual per User subscription fee shall be pro-rated on an annual basis for any additional User(s) above the initial designated quantity which Customer adds during the course of any given initial Subscription term. Customer is prohibited from allowing more than one User to subscribe to, access, and/or use the Service under the same user login name and/or password.
(e) Although Ostendio will not share Customer Data (as defined below) with any unauthorized third party without Customer’s consent, by using the designated feature on the Service, Customer may elect to share specific Customer Data with designated third parties. Any such sharing of Customer Data by Customer is made solely at Customer’s own discretion and risk. Where Customer does elect to share Customer Data, Ostendio will share only via the Service as directed by the Customer and only to the third parties specified by Customer. The Customer agrees and acknowledges that Ostendio shall not be responsible or liable for Customer sharing any Customer Data or allowing any third party to access and/or review any Customer Data. Customer accepts and understands that sharing Customer Data using the designated feature on the Service shall be deemed equivalent to Customer directly copying the data and sharing it outside of the Service and, accordingly, Customer will ensure that it shares Customer Data only as expressly intended.
2. Customer Conduct and Use
(a) Customer Data; Upload Restrictions. Customer will retain all right, title and interest in and to all data uploaded by Customer and its Users to the Service that would typically be provided in the planning, execution and/or analysis of a security and/or compliance program including ongoing security and compliance monitoring as well as all information generated by Users using of the Service (collectively, “Customer Data”). Customer represents and warrants to Ostendio that the Customer Data does not infringe the intellectual property right or any other property right of any third party. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer shall not store, upload into, or transmit through the Service: (i) any financial information (e.g., bank account numbers), any medical information (e.g., ePHI), or any personally identifiable information (e.g., social security numbers, driver’s license numbers, birth dates, passport or visa numbers, passwords and credit card numbers) other than as part of the online payment service, without a separate written agreement entered into between Customer and Ostendio explicitly allowing Customer to do so (ii) any content that is obscene, defamatory, libelous, threatening, harassing, pornographic, racially or ethnically offensive, or that encourages conduct that would be considered a criminal offence or give rise to any civil liability, or (iii) any material (including any software, virus, bot, worm, Trojan horse, scripting exploit, or other harmful code) that is likely to harm or corrupt the Service or any computer systems or data. Customer shall immediately remove all such information from the Service and Customer agrees that Ostendio, in its sole discretion, may purge the same from the Service at any time with or without notice. Ostendio will not access Customer Data uploaded by Customer except: (1) to respond to service or technical problems; (2) to monitor and/or investigate compliance with the Agreement; (3) if there has been a violation of the Agreement; (4) to assess or determine whether the Service is being properly implemented and configured for the service(s) purchased by Customer; (5) at Customer’s request; and/or (6) upon Customer’s written consent (including by email). Ostendio may also collect data with respect to Customer’s and its Users’ use of the Service and/or report on such usage in an aggregated and anonymous manner.
(b) Rights Granted to Ostendio. Customer hereby grants Ostendio a non-exclusive license and right to copy, distribute, perform, display, store, modify, and otherwise use Customer Data in connection with implementing, providing, operating, repairing and/or maintaining the Service and/or providing any services to Customer. Ostendio may also use aggregate information to measure the Service usage patterns and characteristics of its customer and/or user base and otherwise to improve its products and services and may include such aggregate information about its customer and/or user base in promotional materials or reports to third parties. This aggregate information will not reference names, phone numbers, email addresses, or other personally identifiable information, and will not be traceable to a specific recipient or User email address. Customer represents and warrants to Ostendio that Customer has sufficient rights in and to the Customer Data to grant the rights in this Section 2.
(c) Data Storage Limits. Customer’s use of the Service is subject to the online storage limit set forth in the online Ostendio Price List agreed to by Customer for the specific product(s) subscribed to by Customer. Customer shall not exceed the online storage limit agreed to by Customer. If Customer exceeds the agreed upon online storage limit, Customer shall promptly pay to Ostendio all applicable fees charged by Ostendio for any such excess storage.
(d) Compliance. Customer is responsible for (i) all activities that occur with respect to the Customer account, (ii) its and its Users’ use of the Service and compliance with this Agreement, and (iii) all Customer Data and other data uploaded, downloaded, stored, modified, deleted, and/or accessible by Customer or its Users via or on the Service. Customer and its Users shall comply with all applicable privacy, publicity, data protection, electronic communications, spam and other laws in connection with and/or related to the use of the Service, including, without limitation, the CAN-SPAM Act of 2003 (U.S.A.), the Personal Information Protection and Electronic Documents Act (PIPEDA) (Canada), and the EU’s General Data Protection Regulation (GDPR).
(e) Certain Restrictions. Customer and its Users will use the Service for internal business purposes only as contemplated by this Agreement and will not:
- tamper with the security of the Service or any of Ostendio’s other customer accounts;
- attempt to probe, scan or test the vulnerability of the Service, breach the security or authentication measures of the Service without proper written authorization of Ostendio, and/or willfully or knowingly render any part of the Service unusable;
- access data on the Service not intended for Customer or log into a server or account on the Service that Customer is not authorized to access;
- lease, distribute, license, sublicense, sell, or otherwise commercially exploit the Service, use the Service for time sharing or service bureau purposes or otherwise for the benefit of a third party, or make the Service (including any evaluation version) available to a third party other than as contemplated in this Agreement;
- allow any third party that offers or provides any service that is competitive with any Ostendio product or service to use or access the Service, use or access the Service to develop a product or service that is competitive with any Ostendio product or service, or otherwise copy any idea, feature, function, graphic, or intellectual property of the Service;
- use the Service in violation of Ostendio’s Acceptable Use Policy (AUP) available athttps://www.ostendio.com/myvcm/aup, which is hereby incorporated by reference and made a part of the Agreement;
- reverse engineer, decompile, disassemble, translate or seek to obtain the source code of the Service, or modify or create a derivative work of the Service or any related documentation;
- remove or obscure any product identification, proprietary, copyright or any other notice contained in the Service or related documentation;
- create any link, API or other interface to the Service accessible by any other third party or frame or mirror any content contained or accessible from the Service; or
- disclose (whether orally or in writing) information or analysis regarding the specifications or performance of the Service (including benchmark tests).
(f) Communications. Customer will be responsible for the content of all communications sent by Customer and/or any User using the Service. Customer will not use the Service to transmit and/or communicate any message or material that (i) is libelous, harmful to minors, obscene or constitutes pornography; (ii) infringes the intellectual property right of any third party or is otherwise unlawful; or (iii) would otherwise give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law. Ostendio will use commercially reasonable efforts to provide Customer with the opportunity to remove or disable access to any offending material or content.
(g) Suspension. In the event of any breach or threatened breach of this Agreement by Customer or any User (including non-payment of fees), without limiting Ostendio’s other rights and remedies, Ostendio may immediately suspend Customer’s and its Users’ access to the Service.
(a) Scope. “Confidential Information” means all information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”) that is designated in writing or identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential due to the nature of the information disclosed and the circumstances surrounding the disclosure.
(b) Restrictions. The Receiving Party will: (i) not use the Disclosing Party’s Confidential Information for any purpose outside of this Agreement; (ii) not disclose such Confidential Information to any person or entity, other than its (a) employees and contractors who have a “need to know” for the Receiving Party to exercise its rights and/or perform its obligations hereunder and (b) professional advisers, and actual or prospective investors, provided that such employees, contractors, investors, acquirers and professional advisers are bound by written confidentiality agreements or, in the case of professional advisers, ethical duties respecting such Confidential Information in compliance with the terms and obligations of this Section 3; and (iii) at all times use a reasonable degree of care to protect the confidentiality of the Disclosing Party’s Confidential Information.
(c) Exceptions. If the Receiving Party is required by applicable law or regulation, a regulatory entity, or court order to make any disclosure of the Disclosing Party’s Confidential Information, to the extent legally permissible, it will first give written notice of such requirement to the Disclosing Party, permit the Disclosing Party to intervene in any relevant proceedings to protect its interests in its Confidential Information, and, at the Disclosing Party’s expense, provide full cooperation and assistance to the Disclosing Party in seeking to obtain such protection. Further, this Section 3 will not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt from the Disclosing Party; (ii) is or has become public knowledge or publicly available through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party without access to or reliance on the Disclosing Party’s Confidential Information.
(d) Equitable Relief. The Receiving Party acknowledges that unauthorized disclosure of the Disclosing Party’s Confidential Information could cause substantial harm to the Disclosing Party for which monetary damages alone might not be a sufficient remedy and, therefore, that upon any threatened or actual disclosure by the Receiving Party, the Disclosing Party will be entitled to injunctive and other appropriate equitable relief in addition to whatever other remedies it might have at law or equity.
(e) Customer acknowledges and agrees that any feedback, suggestions, comments, improvements, modifications and other information (including any ideas, concepts, “know-how” or techniques contained therein) that Customer or any User provides to Ostendio about the Service or its performance (collectively, “Feedback”) shall not be deemed as Customer Confidential Information and may be used, adopted, disclosed, disseminated, modified, and/or published by Ostendio for any purpose, including developing, manufacturing and marketing products and services incorporating any such Feedback, without obligation or payment of any kind to Customer or any User, and Customer and its Users waive any rights whatsoever in and to all Feedback.
4. Fees; Interest; Taxes
Customer shall prepay to Ostendio on a monthly basis for monthly Subscriptions and on an annual basis for annual Subscriptions in United States dollars all the fees agreed to by Customer as specified in the online Ostendio Price List. Such fees are based on the specific number of Users, which are counted based on the number of then-authorized Users for seats or logins for the Service as set forth in the online Ostendio Price List agreed to by Customer, irrespective of whether Customer and/or any of the designated Users accesses or utilizes the Service. All payment obligations are non-cancellable, and all amounts paid to Ostendio are non-refundable. Fees will be invoiced in advance and all fees are payable automatically by credit card for MyVCM Select customers and via check or ACH for MyVCM Premium and MyVCM Enterprise. Ostendio reserves the right to add, and Customer agrees to pay, an additional charge of 5% to any payment that was scheduled to be automated but subsequently had to be processed manually. Unpaid invoices are subject to a late payment charge of 1.5% per month on any outstanding balance or the maximum permitted by law, whichever is lower, plus all reasonable expenses and fees, including, without limitation, attorney’s fees and costs of collection. All amounts payable hereunder are exclusive of any applicable sales, use, and other taxes or duties, however designated (collectively “Taxes”). Customer is solely responsible for payment of all Taxes, except for those taxes based on the income of Ostendio. Customer will not withhold any Taxes from any amounts due Ostendio. If Ostendio pays any Taxes on behalf of Customer, Customer shall promptly reimburse Ostendio for such payments.
5. Proprietary Rights
Customer is permitted to access and use the Service, but this Agreement is not otherwise an agreement for the sale or license of any software. Customer acknowledges that the Service contains copyrighted and proprietary software, products, and materials, certain components of which might be licensed from one or more of Ostendio’s licensors. Ostendio and Ostendio’s licensors solely and exclusively retain all right, title and interest in and to the Service and related support, documentation and professional services deliverables, and all related and underlying software, interfaces, databases, data models, structures, non-Customer-specific data, aggregated statistical data, technology, reports and other intellectual property, plus all intellectual and other proprietary rights therein or thereto (all of the foregoing, the “Ostendio IP”). Except for the Subscription granted hereunder, Customer has no right, title or interest in or to any of the Ostendio IP.
6. Term and Termination
(a) Term and Termination. This Agreement will be effective during the Subscription Term, unless earlier terminated in accordance with this Section 6. This Agreement may be terminated: (i) by a party upon written notice to the other party (A) if the other party breaches a material term of this Agreement that is uncured within thirty (30) days after receipt of written notice of such breach; (B) if 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; or (C) immediately in the event of a material breach by the other party of Section 2 of these Terms; (ii) by Ostendio pursuant to Section 9(a); or (iii) by Ostendio upon written notice to Customer if Customer has any type of free account and there has not been any activity in the account for a period of six (6) months.
(b) Outstanding Fees. Customer will pay any fees owed to Ostendio that may have accrued up until termination of this Agreement immediately upon any such termination. In addition, if Ostendio terminates this Agreement pursuant to Section 6(a)(i), Customer will pay Ostendio, within thirty (30) days after termination, any unpaid amounts that may be owed to Ostendio for the remainder of the then-current Subscription Term then in effect absent such early termination. If Customer terminates this Agreement pursuant to Section 6(a)(i), Ostendio will promptly refund to Customer a prorated amount equal to the prepaid Subscription Fees covering the whole months that would have remained, absent such early termination, in Customer’s Subscription Term following the effective date of such early termination.
(c) Early Termination. (i) If this Agreement is terminated by Customer prior to the expiration of the initial Subscription term or Renewal Term then in effect and such termination is not due to Ostendio’s uncured breach as set forth in Section 6(a)(i) or if Ostendio terminates this Agreement pursuant to Section 6(a)(i) due to Customer’s breach, Customer shall pay to Ostendio an early termination charge, which Customer agrees is reasonable and not a penalty, equal to all non-recurring and monthly recurring charges set forth in the online Ostendio Price List agreed to by Customer which have not been prepaid by Customer and would otherwise be due through the end of the initial Subscription term or Renewal Term then in effect at the time, including all applicable taxes. For avoidance of doubt, Customer agrees and acknowledges that the foregoing early termination charge shall apply even if Customer terminates the Agreement prior to commencement of the initial Subscription term and/or prior to commencement of its use of the Service. The parties agree that the precise damages resulting from an early termination by Customer or termination by Ostendio in accordance with Section 6(a)(i) are difficult to ascertain and the early termination charge set forth in this Section 6(c) is a reasonable estimate of anticipated actual damages and not a penalty. The early termination charge shall be due and payable within ten (10) days of the effective date of termination.
(d) Effect of Termination. Upon any termination of this Agreement, Customer and its Users will immediately cease all use of and access to the Service. Ostendio will have no liability for any suspension or termination of Customer’s access to the Service, or any termination of this Agreement, provided that it is conducted in accordance with the terms of this Agreement. Upon written request by Customer made within ninety (90) days after termination or expiration of this Agreement, Ostendio will provide Customer with temporary access to the Service solely for Customer to retrieve its Customer Data and not any other purpose. After expiration of such ninety (90) day period, Ostendio will have no obligation to maintain or provide access to such Customer Data and will thereafter, unless legally prohibited and except for archival backup purposes, have the right to delete all such Customer Data in its possession or control. Sections 1, 2, 3, 4, 5, 6, 7(a), 7(d), 8, 9, and 10 of these Terms will survive any termination or expiration of this Agreement for any reason.
7. Representations and Warranties
(a) Corporate Authority. Each party represents and warrants that it has the legal power and authority to enter into this Agreement, and that these Terms and the online Ostendio Price List are agreed to by an employee or agent of such party with all necessary authority to legally bind such party to the terms and conditions of this Agreement.
(b) Functionality Warranty. Ostendio warrants that the Service will operate in substantial conformity with the then current version of the applicable documentation made accessible by Ostendio. The Service is controlled and operated from facilities in the United States. Ostendio makes no representations that the Service is appropriate or available for use in other locations. Users who access and/or use the Service from any other jurisdiction do so at their own volition and risk and are entirely responsible for compliance with all applicable laws and regulations, including, without limitation, export and import regulations.
(c) Security Warranty. Ostendio has implemented Appropriate Security Measures (as hereinafter defined) and will maintain the Service at reputable third-party Internet service providers and co-location facilities. “Appropriate Security Measures” means commercially reasonable efforts to ensure that Customer Data will be maintained accurately and safeguarded including the use of administrative, technical and physical controls designed to protect Customer Data against destruction, loss, alteration, unauthorized disclosure to third parties, and unauthorized access by employees or contractors employed by Ostendio.
(d) DISCLAIMER. EXCEPT FOR THE WARRANTIES CONTAINED IN SECTIONS 7(A),7(B), AND 7(C) ABOVE, (I) THE SERVICE, SUBSCRIPTION, AND ALL OTHER OSTENDIO PRODUCTS AND SERVICES ARE PROVIDED “AS IS”, AND (II) OSTENDIO, ON BEHALF OF ITSELF AND ITS LICENSORS, SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR ANY PURPOSE, IN EACH CASE TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE WARRANTIES CONTAINED IN SECTIONS 7(A), 7(B), AND 7(C) ARE SOLELY TO AND FOR THE BENEFIT OF CUSTOMER AND NO OTHER THIRD PARTY. OSTENDIO AND ITS LICENSORS DO NOT WARRANT THAT (A) THE FUNCTIONS CONTAINED IN THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS, (B) THE OPERATION OF THE SERVICE WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR-FREE, (C) ANY ERRORS IN THE SERVICE CAN OR WILL BE CORRECTED, (D) THE SERVICE OR THE FUNCTIONS CONTAINED THEREIN, OR ANY RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S REQUIREMENTS, INCLUDING FOR RELIABILITY, AVAILABILITY, TIMELINESS, QUALITY, SUITABILITY, ACCURACY, OR COMPLETENESS. OSTENDIO AND ITS LICENSORS WILL NOT BE LIABLE OR RESPONSIBLE FOR ANY DELAYS, INTERRUPTIONS, DELIVERY, OR SERVICE FAILURES, OR ANY OTHER PROBLEMS OR DAMAGES ARISING FROM CUSTOMER’S AND/OR ANY USER’S USE OF THE INTERNET, ELECTRONIC COMMUNICATIONS, OR ANY OTHER SYSTEMS.
8. Limitations of Liability
EXCEPT FOR LIABILITY ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 9, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND OR ANY FINE, PENALTY, OR PROSECUTION, HOWEVER CAUSED AND WHETHER IN CONTRACT, NEGLIGENCE, TORT,STATUTE, REGULATION, OR UNDER ANY OTHER THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, PROFITS, DATA, SALES OR REVENUE, REPUTATION, AND/OR GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOSS OF USE OR CORRUPTION OF ANY CUSTOMER DATA, OR THE COSTS OF PROCUREMENT OF ANY SUBSTITUTE SERVICES, IN EACH CASE WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, IN NO EVENT WILL OSTENDIO, ITS EMPLOYEE, AGENT, OR CONTRACTOR, BE LIABLE TO CUSTOMER OR ANY USER FOR ANY DAMAGE, COST, CLAIM, FINES, PENALTIES, OR OTHER LIABILITY (EXCLUDING INDEMNIFICATION OBLIGATIONS) RELATED TO OR ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, NEGLIGENCE, TORT, STATUTE, OR REGULATION, IN EXCESS OF THE LESSER OF (I) THE TOTAL FEES PAID BY CUSTOMER FOR THE RIGHT TO ACCESS AND USE THE SERVICE UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT OR ACT GIVING RISE TO THE CLAIM FOR DAMAGES AND/OR CAUSE OF ACTION OR (II) FIVE HUNDRED THOUSAND U.S. DOLLARS (US$500,000). OSTENDIO’S LICENSORS DISCLAIM ALL LIABILITY TO CUSTOMER, WHETHER DIRECT OR INDIRECT, INCIDENTAL OR CONSEQUENTIAL (INCLUDING LOST PROFITS, SALES, AND REVENUES AS WELL AS ANY FINES AND PENALTIES), ARISING FROM OR RELATING TO THIS AGREEMENT. Except with respect to enforcing Customer’s payment obligations under this Agreement or a breach of Sections 2 or 3, no action against either party arising out of this Agreement may be brought by the other party more than one (1) year after the cause of action or claim for damages has arisen. This Section 8 will apply to the maximum extent permitted under applicable law.
9. Mutual Indemnification
(a) Ostendio Indemnification. Ostendio will, at its expense, indemnify, defend and hold harmless Customer against any loss, liability, damage, or cost (including reasonable and necessary attorneys’ fees) (“Losses”) incurred in connection with any claim, demand, suit or proceeding made or brought by a third party (“Claim”) against Customer alleging that the use of the Service, as contemplated hereunder and in accordance with the Agreement, infringes a third party’s United States registered patent, copyright, or trademark. Notwithstanding the foregoing, if Ostendio reasonably believes that Customer’s or any User’s use of any portion of the Service is likely to be enjoined by reason of a Claim of infringement, violation, or misappropriation of any third party intellectual property right, then Ostendio may, at its expense and in its sole discretion: (i) procure for Customer the right to continue using the Service; or (ii) replace or modify the applicable software, services or other material so that there is no longer any infringement, violation, or misappropriation, provided that such replacement or modification does not adversely affect the functional capabilities of the Service. If, in Ostendio’s opinion, subsections (i) and (ii) above are infeasible or commercially impracticable, Ostendio may, in its sole discretion, terminate this Agreement upon written notice to Customer and refund to Customer a prorated amount equal to the pre-paid Subscription Fees covering the whole months that would have remained, absent such early termination, in Customer’s Subscription Term following the effective date of such early termination. The foregoing indemnification obligation of Ostendio will not apply: (1) if the Service is modified in any way by any person or entity other than Ostendio, but solely to the extent the alleged or actual infringement is caused by such modification; (2) if the Service is combined with any other non-Ostendio software, product, application, technology, or process not authorized by Ostendio in writing, but solely to the extent the alleged or actual infringement is caused by such combination; (3) to any unauthorized use of the Service; (4) to any third party deliverable or component contained within the Service that are not provided by Ostendio; or (5) to any action arising as a result of any Customer Data. THIS SECTION 9(a) SETS FORTH OSTENDIO’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
(b) Customer Indemnification. Customer will, at its expense, indemnify, defend and hold Ostendio and its Affiliates, and their officers, directors, employees, agents, and contractors (“Ostendio Indemnitees”), harmless from and against any Losses incurred in connection with any Claim against any Ostendio Indemnitees arising from or relating to the gross negligence, willful misconduct or violation of law or regulation by Customer or any User, Customer’s or any User’s violation of this Agreement, and/or Customer’s or any User’s use of Customer Data or other use of the Service, in each case except to the extent Ostendio is obligated to indemnify Customer under Section 9(a).
(c) Procedure. Each party’s indemnity obligations are subject to the following: (i) the aggrieved party will promptly notify the indemnifier in writing of the Claim; (ii) the indemnifier will have sole responsibility for and control of the defense and all related settlement negotiations with respect to the Claim (provided that the indemnifier may not settle or defend any Claim unless it unconditionally releases the aggrieved party of all liability); and (iii) the aggrieved party will cooperate fully to the extent necessary and execute all documents necessary for the defense of such Claim.
10. General Provisions
(a) Entire Agreement; Interpretation. This Agreement (which consists of the online Ostendio Price List agreed to by Customer and these Terms) constitutes the entire agreement and sets forth the entire understanding between the parties hereto with respect to Customer’s Subscription to the Service, and supersedes all prior agreements, promises, understandings, statements, representations, covenants, discussions, and all inducements to the making of this Agreement relied upon by either party, whether written or verbal, with respect thereto and embodies the parties’ complete and entire agreement with respect to the subject matter hereof. No statement or agreement, verbal or written, shall vary or modify the written terms hereof in any way whatsoever. This Agreement will control over any different or additional terms of a Customer purchase order or other non-Ostendio ordering document, and no terms included in any Customer purchase order or other non-Ostendio ordering document will apply to the Customer’s Subscription or use of the Service. Headings contained in this Agreement are inserted for convenience of reference only and will not in any way define or affect the meaning or interpretation of any provision of this Agreement. For purposes of this Agreement, “including” means “including without limitation”.
(b) Marketing. Neither party may issue any press release regarding this Agreement without the other party’s prior written consent. Either party may include the name and logo of the other party in lists of customers or vendors in accordance with the other party’s standard guidelines.
(c) Relationship of Customer and Ostendio. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
(d) Modifications and Waiver. As set forth above, Ostendio reserves the right to amend or modify these Terms by posting such amendment or modification on the Ostendio website and Customer agrees to be bound by any such amendment or modification. Except as otherwise stated above, this Agreement may not be modified or amended by Customer except by a written document executed by both parties. Any waiver of any right or remedy under this Agreement must be in writing and signed by each party. No delay in exercising any right or remedy will operate as a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be construed as a waiver of any right or remedy on any future occasion.
(e) Assignment. This Agreement and any rights or obligations hereunder may not be assigned, sublicensed, or otherwise transferred by a party without the prior written consent of the non-assigning party, except that either party may assign or transfer this Agreement upon a change of control of a party, upon the sale of all or substantially all of its assets, or by operation of law by providing the non-assigning party with written notice thereof provided that the assignee agrees in writing to be bound by all terms and conditions of this Agreement.
(f) Governing Law. This Agreement and any claim, controversy, right, obligation, or dispute arising under or related to this Agreement, the relationship of the parties, and the interpretation and enforcement of the rights, performance obligations, and duties of the parties will be governed by and construed in accordance with the laws of the Commonwealth of Virginia, USA, without regard to conflicts of laws principles. The parties agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods do not apply to this Agreement. The parties irrevocably and unconditionally agree to the exclusive jurisdiction of the state courts in Fairfax County, Virginia and the federal courts in the City of Alexandria in the Commonwealth of Virginia, USA. The parties waive any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
(g) Notices. Any notices under this Agreement will be in writing and sent via certified or registered mail, return receipt requested, or by overnight courier service. Notices to Ostendio must be sent to Ostendio at the following address: Chief Executive Officer, Ostendio, Inc., 1911 N. Fort Myer Drive, Suite 100, Arlington, Virginia 22209. Notices to Customer will be sent to the contact person and address for Customer set forth in the Ostendio Online Registration.
(h) Severability. If any provision of this Agreement is held to be unenforceable or illegal by a court of competent jurisdiction, such provision will be modified to the extent necessary to render it enforceable, or will be severed from this Agreement, and all other provisions of this Agreement will remain in full force and effect.
(i) Facsimile Transmission/Counterparts/Electronic Signatures. Customer agrees and acknowledges that these online Terms together with the online Ostendio Price List agreed to by Customer form a legally binding agreement between Customer and Ostendio, effective as of the date Customer clicks the “PLACE ORDER” button and submits the Ostendio Online Registration. To the extent any signature on any version of the Terms, online Ostendio Price List, and/or related document is necessary for any reason, the parties agree that such document may be executed and delivered by facsimile, electronic signature, or email, and upon receipt such transmission will be deemed delivery of an original, and which may be executed in several counterparts each of which when executed will be deemed to be an original, and such counterparts will each constitute one and the same instrument. To the extent any signature is necessary, the party’s consent to electronic signatures for the purpose of executing this Agreement by e-mail or other electronic means, subject to compliance with any applicable laws, rules or regulations. Any such documents that are delivered electronically and accepted are deemed to be “in writing” to the same extent and with the same effect as if the Agreement had been signed manually. In no event will electronic execution expand such assent to include any terms other than those explicitly set forth in this Agreement.
(j) Force Majeure. Neither party to this Agreement will be liable to the other for any failure or delay in performance by circumstances beyond its control, including, without limitation, acts of God, adverse weather conditions, fire, labor difficulties, governmental action, or terrorism, provided that the party seeking to rely on such circumstances gives written notice of such circumstances to the other party hereto and uses commercially reasonable efforts to overcome such circumstances.
(k) Basis of Bargain; Failure of Essential Purpose. Customer acknowledges and agrees that Ostendio has established its prices and entered into this Agreement in reliance upon the limitations and exclusions of liability and the warranty disclaimers set forth in this Agreement are an essential basis of the bargain between the parties and are material terms of this Agreement. The parties agree that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if found to have failed their essential purpose, and Customer hereby waives its right to contest the enforceability of any provision of this Agreement by reason of such failure.
(l) No Third-party Beneficiaries. This Agreement does not extend or apply to any third party and there are no third-party beneficiaries to this Agreement.
(m) Subcontractors. Ostendio may use the services of subcontractors for the provision of the Service and performance of any services under this Agreement.
(n) Interpretation of Agreement. This Agreement will be construed and interpreted fairly, in accordance with the plain meaning of its terms, and there will be no presumption or inference against the party drafting this Agreement in construing or interpreting any of the provisions contained in this Agreement.