Pondurance Terms of Service
The terms and conditions below will govern the provision of Pondurance services to Client:
1. Performance of Services
(a) Scope. This Agreement shall govern the provision by Pondurance of all Services, including but not limited to certain consulting, technical, programming, or other Services from time to time as requested by Client. This Agreement shall be implemented through one or more addendums (“Addendum”), including one or more service contracts (“Service Contract”). This Agreement applies equally with and in full force to any Addendum, any statement of work or proposal, and any other agreement entered into by and between Pondurance and Client, all whether executed previously to, concurrently with, or subsequently to this Agreement.
(b) Conflict. In the event of a conflict between this Agreement and applicable Addenda and except as expressly set forth in such applicable Addendum, the terms of this Agreement shall govern.
(c) Change in Scope. Any change requests to any Service Contract must be in writing and shall be labeled consecutively using numbers (the “Change Request”). Promptly after receipt of a Change Request, the parties shall discuss in good faith the availability of personnel and resources to fulfill such Change Request and the resulting adjustments to the applicable Service Contract. Ponderance Client, as applicable, shall have no obligation to commence work in connection with any Change Request until it is executed and delivered by both parties. Each Change Request executed and delivered by the parties shall be incorporated into and constitute an amendment to the applicable Service Contract. The terms of any executed Change Request shall control over any inconsistent provisions set forth in the applicable Service Contract.
(d) Services Providers. Each Party shall remain liable at all times for the actions and omissions of all the subcontractors that it may use in connection with the Services or this Agreement, and the other Party agrees that all subcontractor(s) which have access to the Services and/or the confidential information of the other Party shall be subject to confidentiality obligations at least as restrictive as those set forth in this Agreement. Each Party shall be liable to the other Party for damages caused by any violation of the confidentiality provisions of the Agreement by any such subcontractor.
2. Intellectual Property
(a) Intellectual Property Rights. Each Party owns and shall own all right, title, and interest and all intellectual property rights (including without limitation copyrights, trade secrets, trademarks, and patent rights) in and to the information submitted and made available to the other Party during performance of the Services or to which the other Party is provided access to during performance of the Services. Each Party grants to the other Party a limited license solely to the extent necessary to perform the Services.
(b) Copyright. All materials specifically generated or produced by or on behalf of Pondurance in connection with this Agreement, including deliverables (collectively, “Work Product”), are “works made for hire” to the extent that term can be applied consistently with 17 U.S.C. § 101 and shall be Client’s sole and exclusive property. Pondurance hereby transfers, grants, conveys, assigns, and agrees to assign to Client all right, title, and interest into the Work Product. Pondurance shall secure for the benefit of Client any assignment of Work Product necessary from its employees, agents, representatives, and/or subcontractors, if any in order to effect and perfect Pondurance’s assignment of rights to Client under this Agreement. If despite the intentions of the parties hereto, the Work Product or any portion thereof is not deemed to be a “work made for hire” or is not assigned to Client, Pondurance hereby grants to Client a non-transferable, non-exclusive, world-wide, royalty-free license to such Work Product or any portion thereof in perpetuity or for the longest period otherwise permitted by law sufficient to allow full lawful use of the Work Product and deliverables that incorporate the Work Product. Notwithstanding the foregoing, all materials owned by and trade secrets, intellectual property and/or proprietary processes of Pondurance in existence on the Effective Date, and all materials, trade secrets, intellectual property and/or proprietary processes created, acquired, or developed by Pondurance after the Effective Date and not relying on use of Client’s information or Work Products owned or to be assigned to Client (collectively the “Pre-Existing Work”) shall remain the exclusive property of Pondurance. Pre-Existing Work includes, without limitation, technical expertise, applied experience, professional skills, previously developed software and/or processes of Pondurance. Except as expressly provided in this Agreement, neither party shall be entitled to use or appropriate the trade secrets, intellectual property or proprietary processes of the other party. Client understands and agrees that any software or hardware developed by Pondurance (“Licensed Product”) and deployed, installed, or connected to Client’s systems and/or on-site with Client by virtue of this Agreement are proprietary technical property ponderance and represents valuable and protected intellectual property and trade secrets of Pondurance. Client shall not: (i) reverse engineer or analyze the Licensed Products; (ii) create derivatives of the Licensed Products for personal or commercial purposes; or (iii) use Pondurance’s Products in any form after the termination of this Agreement.
(i) License of Marks. During the term of this Agreement, each party (the “Licensor”) hereby grants to the other party (the "Licensee”), subject to the terms and conditions of this Agreement, a limited, royalty-free, non-exclusive, non-transferable, non sublicensable, worldwide right and license to use and display, solely to the extent necessary for Licensee to perform its obligations hereunder, Licensor’s trade names, trademarks, service marks and associated logos and other promotional materials (the "Marks”). Licensee will attribute the Marks of Licensor used pursuant to this Section with a statement to the effect that such Marks are owned by Licensor.
(ii) Reservation of Rights in Marks. Licensor will retain all right, title and interest in and to Licensor’s Marks, and all goodwill associated with use of such Marks will inure solely to the benefit of Licensor. All use of the Licensor’s Marks by Licensee shall conform to good trademark usage practice or any reasonable trademark usage guidelines or instructions that Licensor may provide Licensee from time to time. No licenses are hereby granted by the Licensor to the Licensee with respect to the Licensor’s Marks except for those expressly set forth in this Agreement.
3. Intentionally omitted.
4. Term and Termination.
(a) Term. This Agreement shall commence as of the Effective Date and shall continue until terminated as set forth in any applicable Service Contract, Addendum, or other applicable agreement.
(b) Effect of Termination. Immediately upon any termination of this Agreement, a corresponding Addendum, or of the Service Contract: (i) all rights and licenses granted hereunder or in any other agreement by and between Pondurance and Client, and all obligations and covenants imposed hereunder, shall immediately cease, except as otherwise expressly provided herein; and (ii) each party shall, unless required by law: (A) stop using all Confidential Information, Marks and/or any other proprietary materials of the other party then under its possession or control (including, without limitation, the Services); (B) erase or destroy all such Confidential Information, Marks and/or any other proprietary materials residing in any computer memory or data storage apparatus; and (C) at the option of such other party, either destroy or return to such other party all such Confidential Information, Marks and/or any other proprietary materials in tangible form and all copies thereof. Any such destruction referenced in (B) or (C) above shall be certified in writing to the disclosing party by an authorized officer of the receiving party supervising such destruction. Notwithstanding the foregoing, a party may (xx) retain in its legal files one copy of the Confidential Information for archival purposes and compliance with the terms of this Agreement and (yy) retain copies as are stored in automated computer backup systems, it being agreed and understood that any such documents and records retained pursuant to clause (xx) or (yy) shall remain subject to the terms of this Agreement for as long as they are so maintained
5. Relationship of the Parties and Intellectual Property Rights
(a) No Warranties. Pondurance warrants and represents (i) that it will perform the Services under this Agreement in a workmanlike manner that conforms to reasonable standards in the industry, and (ii) that Work Product shall meet the specifications, if any, identified in any applicable Service Order or Addendum. EXCEPT AS PROVIDED HEREIN, PONDURANCEMAKES NO AND HEREBY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SERVICES, THE PONDURANCE PRODUCTS AND OTHER SERVICES CONTEMPLATED BY THIS AGREEMENT OR OTHERWISE ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, AND PONDURANCE SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
(b) No Warranty to Third Parties. NOTHING IN THIS AGREEMENT IS INTENDED TO CONSTITUTE OR CREATE ANY REPRESENTATION OR WARRANTY BY PONDURANCE TO ANY OTHER THIRD PARTY, DIRECTLY OR AS A THIRD-PARTY BENEFICIARY.
(c) Necessary Approvals for Data. Client represents and warrants that it has the authority and that it has obtained all necessary approvals in order to deliver private and personal data to Pondurance or its agents.
(d) Unauthorized Use of Personal Data. Pondurance shall not be liable for any claim by Client or other third parties arising from the unauthorized or fraudulent application for, access to, or use of personal data unless arising from the negligence or deliberate acts of Pondurance or its agents.
(a) By Pondurance. Pondurance shall indemnify, defend and hold harmless Client and its members, officers, directors, employees and agents from and against(collectively, the “Indemnified Client Parties”) any and all losses, claims, penalties, fines, judgments, settlements, damages, liabilities, or expenses(including reasonable attorneys’ and paralegal fees, expert witness fees, expenses, and costs of settlement) (“Losses”) or threatened Losses arising out of or relating to: (i) any infringement, misappropriation, or violation of any patent, copyright, trademark, trade secret or other intellectual property right asserted by any third party against any of the Indemnified Client Parties in connection with the provision, use or possession of any of the Services; (ii) any claim being asserted by any third party which is, directly or indirectly, caused by or attributable to the gross negligence, bad faith, or willful misconduct of Pondurance or its personnel in connection with performing Services under this Agreement; and (iii) the failure of Pondurance or its personnel to follow applicable law or regulation. Notwithstanding anything contained herein to the contrary, Pondurance shall have no obligation under Section 6(a) herein to the extent that such claim is based on any modifications to the Services performed by any party other than by or on behalf of Pondurance or any Pondurance affiliate.
(b) By Client. Client shall indemnify, defend and hold harmless Pondurance and its members, officers, managers, employees, and agent (collectively, the “Indemnified Pondurance Parties”) from and against any Losses or threatened Losses arising out of or relating to: (i) any infringement, misappropriation or violation of any patent, copyright, trademark, trade secret or other intellectual property right or any privacy right asserted by any third party against any of the Indemnified Pondurance Parties in connection with the receipt, possession, or use of any materials or information provided by Client to Pondurance or accessed, scanned, downloaded, or copied in Pondurance’s performance of a scan, ethical penetration or intrusion test, or information system, network, or enterprise vulnerability assessment (“Testing Service”); (ii) any claim being asserted by any third party which is, directly or indirectly, caused by or attributable to Pondurance’s performance of a Testing Service under this Agreement; or (iii) any claim being asserted by any third party which is, directly or indirectly, caused by or attributable to the complete or partial disclosure, whether authorized or unauthorized, of any deliverable provided by Pondurance to Client under this Agreement or any third party’s use or reliance on such disclosed deliverable. The Client’s subdivisions, subsidiaries, parent, and any other affiliate, as applicable, are deemed a third party as that term is used in this Section6(b). Client specifically understands and acknowledges that Pondurance shall not be liable to Client for any claims, causes of action, losses, and/or threatened claims, causes of action, losses arising out of or related to any services provided by Pondurance related to validation of Payment Card Industry Data Security Standards (PCI), data monitoring services, threat management, or for its role as a Qualified Security Assessor (QSA) to Client, if applicable. Specifically, Client acknowledges and agrees to indemnify and hold Pondurance harmless from any claims, losses, causes of action arising from a failure by Client to ensure Client has disclosed and/or connected each and every of its systems to Pondurance’s monitoring infrastructure. Client waives any cause of action against Pondurance arising from damages caused by an event or threat arising from any system not specifically connected to Pondurance’s monitoring infrastructure or project scope. Nothing in this Section 6(b) shall be construed to expand the scope of Pondurance’s liability for any claims, losses, causes of action, and/or threatened claims, losses, causes of action beyond that explicitly provided herein.
7. Confidential Information
(a) Defined. “Confidential Information” means and includes the terms of this Agreement, any associated Service Contract, Addendum, Pondurance Products (including any underlying software, hardware, and technology), and documentation and all confidential and proprietary information of Pondurance or Client, including without limitation all business plans, product plans, financial information, software, designs, and technical, business and financial data of any nature whatsoever (including, without limitation, and marketing, pricing and other information regarding the Services), provided that such information is marked as “confidential,” “proprietary,” or any other similar term or designation. Confidential Information does not include information that is (i)rightfully in the receiving party’s possession without obligation of confidentiality prior to receipt from the disclosing party, (ii) is or becomes publicly known through no fault of the receiving party, (iii) rightfully furnished to the receiving party by a third party without restriction on disclosure or use; or (iv) independently developed by the receiving party without use of or reference to the disclosing party's Confidential Informationand evidenced by contemporaneous written documentation.
(b) Obligations. Each party shall (i) use Confidential Information of the other party only for the purposes of exercising rights or performing obligations in connection with this Agreement or applicable Service Contract or other agreement, (ii) only disclose Confidential Information to the other party as necessary to allow the other party to perform its obligations hereunder; and (iii) use at least same degree of care that it uses to protect its own confidential information of a similar nature, but in no event less than a reasonable degree of care to protect from disclosure to unaffiliated third parties any Confidential Information disclosed by the other party for a period commencing upon the date of disclosure of three (3) years following the date of disclosure, except with respect to the Pondurance Products, Services, and training materials, which shall remain Confidential Information until one of the exceptions stated above applies. Client may not disclose the results of any performance tests of the Services to any third party without Pondurance’s prior written approval. Notwithstanding the foregoing, a party may disclose the Confidential Information of the disclosing party to an affiliate or subsidiary of that party, provided such affiliate or subsidiary is under an obligation of confidentiality at least as restrictive as those found herein, solely for the purpose of fulfilling the receiving party’s obligations under this Agreement, or Addendum, or Service Order. In the event that the receiving party is by any law, rule, regulation, subpoena, order, decree or decision, or other process of law ordered to disclose Confidential Information of the disclosing party, receiving party will, as permitted by law, regulation, or order, promptly notify the disclosing party and allow disclosing party a reasonable time to oppose such process and will disclose only that portion of Confidential Information necessary to comply with the law; unless, (xx) the receiving party discloses Confidential Information to a Federal, State, or local government official, or an attorney solely for the purpose of reporting or investigating a suspected violation of law, or (yy) the receiving party discloses Proprietary Information in a complaint or other document filed in a lawsuit or other proceeding if such filing is made under seal. In the event that Confidential Information must be disclosed to auditors as part of a quality audit related to a regulatory agency’s or notified body’s authority, the receiving party must secure confidential treatment with such auditors and agencies
(c) Injunctive Relief. Each party acknowledges that a breach or threatened breach of the provisions of Sections 2 and 7 may result in serious and irreparable injury to the non-breaching party for which that party might not be adequately compensated. Each party, therefore, agrees that the non-breaching party shall be entitled, in addition to its compensation or remedies, to seek injunctive relief for any violation of this Agreement by the breaching party.
(a) Unless the parties otherwise agree inwriting, while this Agreement is in effect, Pondurance shall obtain and maintain, at its own cost and expense, insurance as set forth below. Such insurance shall be written by an insurance Client or companies having an A.M. Best rating of at least A-.
(i) General liability insurance in an amount of $1,000,000per occurrence and $5,000,000 in the aggregate.
(ii) Errors and omissions insurance (also known as professional liability insurance) in an amount of $2,000,000 per occurrence and in the aggregate.
(b) Such insurance shall name the Client as an additional insured, except with respect to the errors and omissions insurance. Upon request by the Client, Pondurance shall furnish Client with satisfactory proof of such insurance. Such certificates of insurance shall provide that prior to cancellation of coverage, or in the event of non-renewal, the insurer shall provide Client with thirty (30) days prior written notice.
9. No Use of Logo, Marks, or Likeness.
Neither party may use the marks, likeness, or logo of the other party without, in each instance of use, the prior written approval of an authorized executive of the granting party.
To the extent permitted by law, during the period that Pondurance is providing Services under an applicable Addendum or Service Order, neither party shall directly solicit an employee of the other party for employment during the term of the applicable Addendum or Service Order and for a period of twelve (12) months after termination or expiration of the applicable Addendum or Service Order under which that directly solicited employee performed Services.
11. General Provisions.
(a) Complete Agreement; Amendment. This Agreement, along with any Service Contract, Addendum, or any other agreement, as
applicable (i) represents the complete statement of the agreement of the parties with regard to the subject matter hereof; and (ii) may be modified only by a writing signed by both parties. This Agreement specifically incorporates, as applicable, any Service Contract, Addendum, or any other applicable agreement duly executed by the parties. This Agreement shall govern the delivery and performance of the Services. Except as expressly agreed in writing by the parties, all other terms of any purchase order or similar document provided by Client whether prior or following the Effective Date, including but not limited to any pre-printed terms thereon and any terms that are inconsistent, add to or conflict with this Agreement shall be null and void and of no legal force or effect.
(b) Independent Contractor. Pondurance and any individual assigned ponderance is an independent contractor. Pondurance and any individual assigned by Pondurance are expressly exempted from all Client employee benefits and shall not, at any time, seek such benefits from Client.
(c) Assignability; Transfer. This Agreement shall inure the benefit of and be binding upon the permitted successors and assigns of the parties and their present or future controlling entities.
(d) Notices. All notices, requests, or other communications provided for by this Agreement shall be sufficient if in writing and if (i) delivered by hand to the other party; (ii) sent by registered or certified United States Mail, return receipt requested, with all postage prepaid; or (iv) sent by recognized commercial express courier services, with all delivery charged prepaid, and addressed as follows:
If to Pondurance: Partner(s)
500 N. Meridian St., Suite 500
ndianapolis, IN 46204
With copy to: James Zoccola
One American Sq., Suite 2500
Indianapolis, IN 46282
All procedures in this Section 11(d)related to notices, requests, or other communications provided for by this Agreement shall apply equally to any electronic documents the parties execute electronically.
(e) Dispute Resolution. The parties to this Agreement understand and agree that the implementation of this Agreement will be enhanced by the timely and open discussion and resolution of any disputes or disagreements between the parties. Both parties will use good faith and reasonable efforts to resolve any dispute informally and as soon as practical. If any such dispute is not resolved informally within reasonable period, then an officer or member of senior executive management from each party, having authority to resolve the dispute, will meet at a mutually agreeable time and place to attempt to resolve the dispute prior to commencing litigation.
(f) Governing Law/Waiver of Jury Trial. This Agreement and the legal relationships between the parties hereto shall be governed by and construed in accordance with the laws of the state of Indiana without regard to its conflicts of laws rules. Any cause of action, case, or controversy arising out of or connected with this Agreement shall be brought only in a court located in Marion County, Indiana or the United States District Court for the Southern District of Indiana, and each of the parties hereto irrevocably submits to the jurisdiction of such forums and irrevocably waives any objection the party may have based upon improper venue, forum non conveniens, or similar doctrines or rules. The parties hereto hereby waive any rights that they may have to a trial by jury of any action, claim, controversy or matter arising out of or in any way related to this Agreement (whether based upon contract, tort, or otherwise).
(g) No Waiver. No failure or delay on the part of any party hereto in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof of the exercise of any other right, power or remedy. Any waiver granted hereunder must be in writing and shall be valid only in the specific instance in which given.
(h) Severability/Construction. If any provision of this Agreement or the application of any such provision to any party or circumstance shall be declared to be invalid, unenforceable or void, such decision shall not have the effect of invalidating or voiding the remainder of this Agreement, it being the intent and agreement of the parties that this Agreement shall be deemed amended by modifying such provision to the extent necessary to render it valid, legal and enforceable while preserving its intent or, if such modification is not possible, by substituting therefor another provision that is valid, legal and enforceable so as to materially effectuate the parties’ intent. Notwithstanding the general rules of construction, the parties acknowledge that both parties were given an equal opportunity to negotiate the terms and conditions of this Agreement and agree that the identity of the drafter of this Agreement is not relevant to any interpretation of the terms and conditions of this Agreement.
(i) Expenses. If either party hereto files suit in any court against the other party to enforce the terms of this Agreement against the other party or to obtain performance by the other party hereunder, the Prevailing Party shall be entitled to recover all reasonable costs, including reasonable attorneys’ fees, from the other Party as part of any judgment in such suit. The term “Prevailing Party” shall mean the party in whose favor final judgment after appeal, if any, is rendered with respect to the claims asserted in the compliant.
(j) Headings. The headings contained in this Agreement have been inserted solely for the convenience of the parties and shall be of no force or effect in the interpretation of this Agreement.
(k) Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(l) Force Majeure. Neither party shall be liable under this Agreement because of a failure or delay in performing its obligations hereunder on account of any force majeure event, such as strikes, riots, insurrection, terrorism, fires, natural disasters, acts of God, war, governmental action, or any other cause which is beyond the reasonable control of such party.
Pondurance Terms of Service – Managed Services Addendum (if applicable)
The terms and conditionsbelow supplement the Pondurance Terms of Service between Pondurance and Client.
1. Managed Services
Pondurance agrees to provide Client with managed services(“Managed Services”) as agreed upon in the Service Contract. Managed Services includes but is not limited to services provided by Pondurance to Client for the purposes of monitoring, managing and/or problem resolution for Client’s IT systems, including but not limited to software production and maintenance; system authentication, testing, and management; data backup, storage, recovery, and management; and network monitoring, testing, management, and security.
2. Intentionally omitted.
3. The License; Ownership
(a) License to Managed Services. In the event any Service Contract is for provision of Managed Services, and pursuant to the terms and conditions of this Addendum or other applicable agreement, Pondurance hereby grants to Client, for the term of the Addendum, Service Contract or other applicable agreement, anon-exclusive, non-transferable, non-sublicensable right and license to access and use the Managed Services solely for the purposes contained in this Addendum and any applicable Service Contract. No other access or use of the Managed Services shall be made by Client except as expressly granted hereunder, without the prior written consent of Pondurance.
(b) Ownership and License. Pondurance software, hardware, documentation and training materials, as applicable, are licensed only (collectively, "Licensed Product(s)”). No title to, or ownership of, Licensed Products provided to Client in the course of performing the Managed Services is transferred by Pondurance to Client, unless expressly agreed to in writing. The parties expressly understand and agree that the Managed Services, the Licensed Product(s), Pondurance’s confidential information, and all intellectual property with respect to the foregoing are and shall remain the sole and exclusive property of Pondurance. Upon Pondurance’s request, Client agrees to execute any license agreement (“Software License Agreement”), which Software License Agreement shall control the rights of Pondurance and Client with respect to Pondurance’s proprietary software.
(c) Sublicenses. Pondurance may deploy the services of third party vendor(s) in conjunction with the Managed Services provided under the terms of this Addendum, Service Contract, or the Agreement. In such event that Pondurance deploys security software and services owned or provided by a third-party vendor in conjunction with Pondurance Managed Services, Client agrees to and understands that it shall execute any applicable sublicense agreements. Any sublicense agreement controls the rights and responsibilities of Pondurance and Client with respect to a third-party vendor’s software. Client shall execute a sublicense agreement upon request by Pondurance. Client understands that Pondurance may not deploy or utilize a third-party vendor’s security software in conjunction with Pondurance services unless and until Client executes a sublicense agreement.
(d) Pondurance’s Proprietary Software. In conjunction with the Managed Services provided under the terms of this Addendum, Agreement, or Service Contract, Pondurance will employ its proprietary software. As explained in Section 3(b),no title to, or ownership of, documentation, training materials, or other materials provided to Client is transferred to Client. However, Pondurance may license, at its sole discretion, its proprietary software to Client pursuant toa Software License Agreement. Client understands that Pondurance may not grant license of its proprietary software to Client unless the Parties have executed a Software License Agreement.
(e) Reservation of Rights. All rights not expressly granted herein with respect to the Managed Services or the Licensed Products are reserved to Pondurance. Nothing contained herein shall limit Pondurance’s right to license or otherwise distribute or make available to any third party, develop, use, create derivative works of, or otherwise exploit the Licensed Products or the Managed Services (and the Licensed Products underlying those services), in whole or in part.
(a) Hardware. In conjunction with the provision of Managed Services referenced herein or in any applicable Service Contract or other applicable agreement, Pondurance may install hardware at a service site that contains Pondurance’s proprietary software (the “Network Security Appliance”). Title to the Network Security Appliance may or may not pass to Client upon termination of the Managed Services. Title to any Network Security Appliance shall be governed by any applicable bill of sale, Service Contract, or purchase order by or between Pondurance and Client. If title does not pass to Client upon termination of the managed services, Client shall promptly return the Network Security Appliance to Pondurance in any event no later than thirty (30) days after termination of the Managed Services. If title to the Network Security Appliance passes to Client, Client agrees that it will not engage in any activities prohibited by any license agreement the Client executes with Pondurance, including but not limited to reverse engineering, in connection with both the hardware and the software contained within the Network Security Appliance.
(b) Duty to Destroy upon Termination. Client agrees that it will remove any proprietary software Pondurance installs on the Network Security Appliance in accordance with removal instructions provided by Pondurance. In the event that Pondurance does not provide such removal instructions, Client acknowledges its duty, and Client agrees, to remove, destroy, delete, wipe clean, or otherwise eliminate any software that is contained in the Network Security Appliance. An officer or other responsible party for Client shall verify in writing to Pondurance that such removal actions have been successfully taken. Client agrees to permit and provide Pondurance with requisite network access for Pondurance to remotely wipe or remove Pondurance proprietary software from the Network Security Appliance after the termination of this Agreement. Client agrees to permit Pondurance, upon request, to inspect the Network Security Appliance after termination of the managed services, even if title to the Network Security Appliance passes to Client, in order to confirm Client’s compliance with this provision.
(c) Testing Services. If the Services include a scan; ethical penetration or intrusion test; or information system, network, or enterprise vulnerability assessment (collectively, the “Testing Services” and individually, a “Testing Service”), Client hereby releases Pondurance and its members, officers, managers, employees, consultants, agents, and independent contractors from any liability arising out of or relating to: (i) system or software security or configuration vulnerabilities not discovered during the performance of such Testing Service, (ii) Client’s failure to provide adequate protection or backup of data or equipment used, accessed, scanned, or tested in connection with the performance of such Testing Service, (iii) the security or performance of Client’s information systems or networks after the performance of such Testing Service, or (iv) the following consequences resulting from the performance of such Testing Service: (A) system or network down time or loss, (B)loss of business, (C) loss of Internet connectivity, (D) degradation of bandwidth, (E) loss of data or access to data, and (F) service interruptions. The limitation of liability herein shall not apply where such consequences are caused by acts or omissions of Pondurance that are 1. knowingly outside the scope of the Testing Service, as specified in the applicable Service Contract or other agreement or 2. illegal or otherwise involving gross negligence, bad faith or willful misconduct of Pondurance or its personnel. If the Services include a Testing Service Pondurance may request that Client provide a written list of where Pondurance has permission to scan, penetrate, or test within Client’s information system, network, or enterprise, and/or where Pondurance does not have permission to scan, penetrate or test within Client’s information system, network, or enterprise. In such event that Pondurance requests Client produce a written list, Client agrees that Pondurance may rely on Client’s representations, as written by Client, regarding where Pondurance has permission to scan, penetrate, or test. Client agrees that Pondurance’s reasonable reliance on Client’s written representations as described in this subsection does not violate any applicable standard of care.
5. Term and Termination
(a) Term. This Addendum shall commence as of the Effective Date and shall continue until terminated as set forth herein or asset forth in any applicable Service Contract, Addendum, or other applicable agreement.
(b) Termination of Agreement Related to Managed Services.
(i) Pondurance may terminate this Addendum if Client fails to make payment when due of any amount which is not subject to a bona fide payment dispute (as substantiated in correspondence between the parties) and Client fails to cure such default within ten (10) business days of receiving notice in writing of such default.
(ii) Either party may terminate this Addendum immediately if the other party breaches or is in default of any material obligation hereunder or in the corresponding Agreement or Service Contract which default is incapable of cure or which, being capable of cure, has not been cured within twenty (20) business days after receipt of notice of such default (or such additional cure period as the non-defaulting party may authorize.
(iii) Either party may immediately terminate this Addendum, at any time and without penalty, upon either party 1) being adjudicated bankrupt, 2) being appointed a receiver or trustee for such party’s property or affairs, 3) making a general assignment for the benefit of creditors, 4)voluntarily filing a petition in bankruptcy, or insolvency or for reorganization, or 5) making application for the appointment of a receiver; or a third party filing a petition for an involuntary adjudication of bankruptcy or insolvency or for a reorganization of the appointment of a receiver and such third party petition is not dismissed, set aside, vacated or discharged without action thereon within sixty (60) days after the issuance of the same.
(c) Service Contracts for Managed Services. As to Service Contracts for Managed Services provided by Pondurance, the termination of this Addendum shall not discharge the obligation of Client to pay Pondurance for the future periodic payments owed to Pondurance for the remaining term of any applicable Service Contract or other agreements. By way of example, should Client terminate a two (2) year monthly engagement in the third month of such engagement, Client shall pay Pondurance the remaining twenty-one (21) month payments either in a lump sum or on a monthly basis for the remainder of the term. Termination of this Agreement shall not entitle Client to a refund of any amounts previously paid to Pondurance.
6. Warranties and Limitation of Liabilities
(a) Pondurance warrants that the Managed Services shall operate substantially in accordance with any applicable Service Contract. Any failure to so operate that results solely from the actions or omissions within the control of Pondurance shall be corrected by Pondurance. This Warranty shall not apply in the event where: 1) such failure results from a correction, alteration or modification of the Managed Services not provided or expressly approved by Pondurance; or 2) the use of the Managed Services in a manner not in accordance with this Agreement; 3) the Managed Services are used with software or equipment other than that for which they were designed; or 4) problems relating to or residing in (A) third party items or services with which the Managed Service are used; or (B) implementation not in accordance with Pondurance’s instructions. The correction of the non-conformity by Pondurance or a refund of the cost of six (6) months of the Managed Services shall be Client’s sole and exclusive remedies for failure to meet this warranty.
(b) PONDURANCE DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE MANAGED SERVICES WILL MEET THE REQUIREMENTS OF CLIENT OR THAT THE OPERATION OF THE MANAGED SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR FREE FROM OTHER PROGRAM LIMITATIONS, OTHER THAN THOSE WARRANTIES AND REPRESENTATIONS EXPLICITLY TO THIS ADDENDUM OR THE AGREEMENT.
(c) Limitation on Direct Damages. PONDURANCE’S TOTAL LIABILITY AND CLIENT’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF ANY TYPE WHATSOEVER, ARISING OUT OF A MANAGED SERVICES PROVIDED HEREUNDER, SHALL BE LIMITED TO PROVEN DIRECT DAMAGES CAUSED BY PONDURANCE’S SOLE NEGLIGENCE IN AN AMOUNT NOT TO EXCEED THE LESSER OF (i) $25,000.00, FOR DAMAGE TO REAL OR TANGIBLE PERSONAL PROPERTY; OR (ii) THE PRICE PAID BY CLIENTTO PONDURANCE IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING SUCH CLAIM FOR THE SPECIFIC MANAGED SERVICES FROM WHICH SUCH CLAIM ARISES, FOR DAMAGE OF ANY TYPE NOT IDENTIFIED IN (i) ABOVE OR OTHERWISE EXCLUDED HEREUNDER
(d) No Indirect Damages. EXCEPT WITH RESPECT TO CLAIMS REGARDING VIOLATION OF PONDURANCE’S INTELLECTUALPROPERTY RIGHTS, AS DETAILED IN SECTION 2 OF THE AGREEMENT, NEITHER CLIENT NOR PONDURANCE SHALL (A) HAVE LIABILITY TO THE OTHER FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUES, DATA AND/OR USE), EVEN IF ADVISED OF THE POSSIBILITY THEREOF; AND (B) BRING ANY CLAIM BASED ON A MANAGED SERVICES PROVIDED HEREUNDER MORE THAN EIGHTEEN (18) MONTHS AFTER THE CAUSE OF ACTION ACCRUES.
Pondurance Terms of Service –Sublicense Addendum (if applicable)
The terms and conditions below supplement the Pondurance Terms of Service between Pondurance and Client.
1. Terms and Conditions
(a) Subscription Grant. The Security Products deployed by Pondurance for benefit of Client are set forth in the corresponding Service Contract and may only be used for commercial use. The price paid by Client is also set forth on Service Contract. The rights in the Security Products granted to Client pursuant this Section 1 are anon-exclusive, non-transferable, revocable, non-sublicensable subscription to access and use the Security Products in accordance with these Company Terms and Conditions.
(b) Term. The term of this Sublicense Addendum shall continue until terminated by Pondurance or Client. In the event of non-payment by Client, Pondurance may terminate this Addendum upon 30-day written notice. In the event Client does not cure any payment default within said 30-day period, said subscription shall be deemed revoked, canceled and terminated immediately.
(c) EULA. Client accepts the terms of any applicable end-user license agreement (“EULA”), subject to any and all modifications made by Company from time to time without notice to or consent of Pondurance or Client. In the event Client learns of or should reasonably become aware of any unauthorized use of the Security Products or any suspected breach of the EULA or the agreement relating to the Security Products, Client will immediately notify Company in writing of the unauthorized use or suspected breach and will provide Company reasonable assistance and cooperation. Client will not distribute the Security Product to any third-party or enter into any contractual arrangement with any third party related to the Security Product, including but not limited to sub-licenses, distribution agreements, or the like. Company may directly or remotely communicate with the Security Products and the Client’s Devices for reasonable purposes including, (i) verifying Credentials; (ii) issuing reports and alerts such as automated support requests and alert messages; (iii) providing support and maintenance services; (iv) applying policy and configuration changes; and(v) extracting usage information, service performance information, and infection logs. Client will cease to access and/or use the Security Product upon notice from the Company. Client will not contact Company directly. Client agrees to only contact Company with respect to any needs or issues related to the Security Product.
(d) Restrictions. Client acknowledges and agrees that the Security Products, and the subscription to the Security Products granted to Client pursuant to Section 1 above, are subject to the following restrictions:
i. Client shall not reverse engineer the Security Products or attempt to decompile, disassemble, reverse translate or otherwise decode the Security Products to derive the source code or data processes from the executable code;
ii. Client shall not sell, resell, sublicense, lease, rent, loan, lend, transmit or otherwise distribute, provide access, or transfer the Security Products in any manner to third parties, other than as expressly permitted in the EULA, the Security Agreement, or herein;
iii. Client shall use the Security Products for its own internal purposes, and will not use the Security Products to provide services to third parties through a service bureau, timeshare or any other arrangement;
iv. Client is expressly prohibited from adapting, modifying, revising, improving, upgrading, enhancing or creating derivative works of the Security Products for any purpose without the express, prior written approval of the Company, which approval may be withheld for any reason;
v. Client shall not knowingly interfere in any manner with the operation or functionality of the Security Products;
vi. Client shall not knowingly interfere with or disrupt the integrity or performance of the Security Products;
vii. Client shall not attempt to gain unauthorized access to the Security Products or their related systems or networks:
viii. Client shall not use Security Products in any other manner for its own benefit or the benefit of third parties other than as expressly permitted in the EULA, the Security Agreement, or herein;
ix. Client shall not use or allow use of the Security Product for the purposes of competing with Company, including creating or developing competitive intelligence software or services based in part or in whole on data provided by Company, or for benchmarking the Security Product, or causing or allowing any third party, agent or other designee to do so:
x. Client shall not disparage Company, the Security Products or other products or services of Company;
xi. Client shall not make false or misleading representations about Company or the Security Products;
xii. Client shall not copy or permit any third party to copy the Security Products;
xiii. Client shall not reverse engineer, decompile, disassemble, re-engineer or otherwise create or attempt to create or permit, allow, or assist others to create the source code of the Security Product, or its structural framework;
xiv. Client shall not disable or circumvent any access control or related equipment, process or procedure established with respect to the Security Products;
xv. Client shall not alter the Security Products or its packaging in anyway, including alteration or destruction of any copyright, trademarks, tradenames or service marks or other notices affixed to the Security Product or its packaging; and
xvi. Client shall not use the Security Products to build a competitive product or service, or copy any feature, function or graphic of the Security Products for competitive purposes.
(e) Client Data. As between the Company and Client, all Client data shall remain the sole property of Client. Client grants to the Company a non-exclusive, royalty free, license to use, modify, copy, process, display, and prepare derivate works of the Client data for the sole purpose of the Company performing its obligations under the Security Agreement and these Company Terms and Conditions, provided, however, that such license may be revoked by Client immediately upon (i) Company’s breach or alleged breach of this Addendum or (ii) upon the enactment or judicial interpretation of any law or regulation prohibiting or limiting such grant of rights, as determined in Client’s sole discretion. Client acknowledges that a feature of the Security Product is to facilitate analysis of files and processes (including portable executable files, meta data, systems files, dll files; binary files; and/or other executable code, including those which may from time to time be embedded in other file types) that exist on, or are being introduced to the Devices of the Pondurance’s Clients (individually and collectively, “Files”) to identify potential or actual malicious code, malware or other intrusive artifacts or processes therein (“Potentially Malicious Code”). Client therefore acknowledges and agrees that, in certain configurations, to function optimally, the Security Product may transmit Files to servers owned or controlled by Company, or otherwise analyze Files.
(f) Malicious Code. Company may reduce Potentially Malicious Code to a unique hash, and Company may deconstruct, analyze and catalogue Potentially Malicious Code to determine functionality and potential to cause instability or damage to Clients’ Devices. Company may also use the unique file hash to identify files on other systems as Potentially Malicious Code, and use and distribute the unique file hash to promote awareness, detection and prevention of internet security risks, in which case the unique file hash will be without attribution to Client, Clients’ operations, or Clients’ Devices (individually and collectively, “Anonymous Data”). Company may also extract, compile, synthesize, and analyze non-personally identifiable data transmitted by the Security Product running on Client’s Devices, or information resulting from Company’s use of the Security Product, in each case to the extent such data or information only includes Anonymous Data. Client agrees that Company may use, copy, modify, distribute and display Files, Anonymous Data and Potentially Malicious Code for Company’s business purposes, including research, development, enhancement and support of products and services. Without limiting the foregoing, Company will not identify Clients as the source of any Files, Anonymous Data or Potentially Malicious Code.
(g) Client Responsibilities. Client acknowledges and agrees that (a) as between the Company and Client, Client is solely responsible for the Client data and those individuals to whom it grants access to Client Data; (b) Client shall use commercially reasonable efforts to prevent unauthorized access to the Security Products and notify the Company promptly of any known or suspected such unauthorized access; and (c) Client may use the Security Products only in accordance with its user guide and applicable law. Client shall be responsible for compliance with these Company Terms and Conditions by its officers, employees and agents.
(h) Client Duties. At all times while Client is using the Security Products, Client shall: (a) at Client's expense, maintain an approved, secure internet connection with the ability to access the Security Products; (b) cooperate with the Company in identifying the cause of any claimed failure of the Security Products to be available; and (c) allow the Company reasonable on-site access to Client's systems to the extent necessary to perform the Services related to the Security Products.
(i) Waiver of Warranty. THE SECURITY PRODUCTS ARE PROVIDED HEREUNDER ON AN "AS IS" BASIS. EXCEPT AS TO ITS OBLIGATIONS OF CONFIDENTIALITY, THE COMPANY AND ALL THIRD PARTY PROVIDERS DISCLAIM ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, ARISING OUT OF OR RELATED TO THIS ADDENDUM, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES REGARDING QUALITY, ACCURACY, CORRECTNESS, COMPLETENESS,COMPREHENSIVENESS, SUITABILITY, COMPATIBILITY, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR OTHERWISE (IRRESPECTIVE OF ANY COURSE OF DEALING, CUSTOM OR USAGE OF TRADE). THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THESE COMPANY TERMS AND CONDITIONS. THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES THAT ACCESS TO THE SECURITY PRODUCTS WILL BE UNINTERRUPTED, THAT THE SECURITY PRODUCTS WILL MEET CLIENT'S REQUIREMENTS, OR THAT THE RESULTS OBTAINED BY CLIENT WILL BE ERROR FREE. AS BETWEEN THE COMPANY AND CLIENT, CLIENT ASSUMES ALL RISK WITH RESPECT TO ITS USE OF THE RESULTS PRODUCED BY THE SECURITY PRODUCTS. NO EMPLOYEE OR AGENT OF THE COMPANY OR PONDURANCE IS AUTHORIZED TO MAKE ANY STATEMENT THAT ADDS TO, AMENDS OR ALTERS THE WARRANTIES OR, OR WAIVES THE LIMITATIONS CONTAINED IN THESE COMPANY TERMS AND CONDITIONS.
(j) Limitation of Liability. IN NO EVENT SHALL COMPANY, ITS AFFILIATES, THIRD-PARTY PROVIDERS, OR ANY OF ITS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS, BE LIABLE TO CLIENT OR ANY AUTHORIZED USER, OR ANY THIRD PARTY WHOSE CLAIM IS RELATED TO THESE COMPANY TERMS AND CONDITIONS OR THIS ADDENDUM, UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY EXEMPLARY, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL OR SIMILAR DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST REVENUES, LOST BUSINESS OPPORTUNITIES, COSTS OF DELAY, LOSS OF DATA OR INFORMATION, AND ANY FAILURE OF DELIVERY OF THE SERVICES OR AVAILABILITY OF THE SECURITY PRODUCTS) EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES, REGARDLESS OF WHETHERSUCH DAMAGES WERE FORESEEABLE OR WHETHER THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR THE COMPANY’S INDEMNITY OBLIGATIONS, AND BREACHES OF CONFIDENTIALITY, IN NO EVENT SHALL COMPANY'S TOTAL CUMULATIVE AGGREGATE LIABILITY TO CLIENT EXCEED THE FEES PAID BY OR ON BEHALF OF CLIENT SPECIFICALLY ATTRIBUTABLE TO THE PRODUCTS AND SERVICES PROVIDED HEREUNDER.
(k) Reservation of Rights by the Company. Client agrees that, as between Company and Client, all right, title and interest in and to the Security Products and the Licensed Materials, all information therein, all processes, formulas, algorithms, system architecture, database schemas and methodology used in the production thereof, including all copyrights and other intellectual property inherent therein or appurtenant thereto, are, and at all times shall remain, the sole and exclusive property of the Company, as licensed, acquired or owned by the Company for its sole and exclusive use, and are protected by copyright and other intellectual property laws. Except for the limited rights granted to Client herein, nothing contained in these Company Terms and Conditions or this Addendum shall confer any right, title or interest in or to the Security Products or the Licensed Materials, or any information therein, and no other right, title, permission or license is granted to Client hereunder, whether by estoppel, implication or otherwise. Ownership in the Security Products and Licensed Materials remains with Company.
(l) Additional Fees. If Client acquires, is acquired, sells substantially all of its assets, or so acquires the assets of another entity, or merges with another entity while these Company Terms and Conditions are in effect, additional fees may be due to the Company or Pondurance if the metric upon which pricing is based changes as a result of such acquisition, sale or mergers.
(m) Suspension of Service for Violations of Law. The Company may immediately suspend access to the Security Products and remove applicable Client data if it in good faith believes that, as part of using the Security Products, Client may have violated a law. The Company may try to contact Pondurance and/or Client in advance, but in any event as soon as practicable under the circumstances.
(n) Injunctive Relief. Client agrees that irreparable damage would occur in the event that any of the provisions of these Company Terms and Conditions were not performed by Client accordance with their specific terms or were otherwise breached. It is accordingly agreed that the Company shall be entitled to seek injunctive relief, without the necessity of posting bond, to prevent breaches of these Company Terms and Conditions and to enforce specifically the terms and provisions hereof in any court having jurisdiction pursuant to these Company Terms and Conditions, this being in addition to any other remedy to which Client may be entitled at law or in equity.
(o) Company Terms and Conditions Control. In the event of any conflict between these Company Terms and Conditions and any other term of any agreement between Pondurance and Client, including this Addendum between Pondurance and Client, these Company Terms and Conditions shall control.
(p) Third Party Beneficiary. Client agrees that the Company shall be, and is, an intended third party beneficiary with regard to any and all agreements between Client and Pondurance regarding use of the Security Products, including, specifically, the Addendum. The Company shall have the right to enforce, and be entitled to the benefit of, any and all provisions of such agreements; provided that the Company shall not be a third party beneficiary to any agreement that relates solely to quality and performance improvement activities, care system transformation or other use or implementation of the data provided by the Security Products, unless agreed to by Client and Pondurance.
2. Additional Pondurance Terms and Conditions
(a) Termination. Upon failure of Client to pay to Pondurance the fees and charges outlined in any applicable Master Services Agreement, Services Contract, Statement of Work, or other applicable agreement, within thirty (30) days following the due date, Pondurance may terminate Client’s sublicense and Client’s sublicense shall immediately thereafter be revoked, canceled and terminated. Pondurance may also terminate this Addendum upon Client’s breach of the terms or conditions contained herein. Client may terminate this Addendum at any time upon sixty (60) days written notice to Pondurance and the Company. Client shall remain liable for all remaining fees and charges due to Pondurance for the remainder of the term set forth in the applicable Master Services Agreement, Services Contract, Statement of Work, or other applicable agreement.
(b) Pondurance Duties. Upon Client agreeing to and adopting the terms and conditions contained in this Addendum, Pondurance shall grant Client a sublicense and shall advise Company of such sublicense grant. Pondurance shall not be responsible for providing any of the Security Products and Pondurance shall not be liable for any damage or loss related to the grant, implementation, delivery or lack of grant, implementation, or delivery of the Security Products.
(c) LIMITATION OF LIABILITY. CLIENT EXPRESSLY UNDERSTANDS AND AGREES THAT PONDURANCE SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST SAVINGS, BUSINESS INTERRUPTION DAMAGES OR EXPENSES, LOST GOODWILL, DATA LOSS, THE COST OF SUBSTITUTE SOFTWARE, OR OTHER LOSSES, EVEN IF PONDURANCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PONDURANCE SHALL NOT BE LIABLE FOR ANY DAMAGES AND CLIENT SHALL BE FULLY RESPONSIBLE FOR ANY DAMAGES RESULTING FROM CLIENT’S OR A USER’S USE OR INABILITY TO USE THE SECURITY PRODUCTS OR SERVICES.
(d) Indemnification. Client shall defend, indemnify, and hold Pondurance and any of its respective employees, officers, directors, independent contractors, affiliates, or agents harmless from any claim, loss, damages, injury, liabilities, fines, penalties and expenses (including, without limitation, reasonable attorneys' fees, court costs, and related defense costs whether incurred in enforcing this Section or defending against such claim) arising from or related to: (i) Client’s use or misuse of the Security Products, any component thereof, and/or any Documentation; (ii) Client’s negligence; (iii) any impermissible access, or use of the Security Products; (iv) any breach of this Addendum by Client; or (v)any violation by Client of any applicable law.
(e) Disclaimer of Representations and Warranties. Pondurance makes no representations or warranties about the Security Products. Pondurance does not warrant that the Security Products will satisfy Client’s requirements or are without defect or error or that the operation of the Security Products will be without interruption. PONDURANCE, TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIMS, ALL EXPRESS, STATUTORY, OR IMPLIED WARRANTIES, REPRESENTATIONS OR COVENANTS OF ANY KIND WITH REGARD TO THESECURITY PRODUCTS OR ANY COMPONENT THEREOF.