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BreachAlert Cloud: Terms and Conditions
Updated Oct-1-2024
This Terms and Conditions governs the term and conditions for each Product Schedule provided to Customer,
which constitutes a binding agreement between Prism Software Corp. (“Company”) and Customer. Customer
accepts and agrees to be bound by these Terms and Conditions by any of the following: (i) Signature agreement of
a Company Statement of Work (SOW) to Customer, (ii) issuing a valid purchase order, either directly with Company
or through its Reseller, that references these Terms and Conditions, or (ii) the date of first use by Customer using
one or more of the products in the Product Schedule (the "Effective Date"). If either the SOW or purchase order
refers to certain supplemental terms and condition (“Supplemental Terms”) for use of the product(s) in the
Product Schedule(s), and in case of conflict between any provision of the Supplemental Terms and any provision of
these Terms and Condition, the provisions of these Terms and Condition shall prevail.
DEFINED TERMS.
“Active Data Storage”: Any Customer data that shall be stored or archived in a hosted environment
"Agreement": These Terms and Conditions as well as each Product Schedule and Service Term.
"Applicable Law": All existing and future laws, rules, regulations, statutes, treaties, codes, ordinances, permits,
certificates, orders and licenses of and interpretations by, any governmental authority, and applicable judgments,
decrees, injunctions, writs, orders or like action of any court, administrative, judicial or quasi-judicial tribunal or
agency of competent jurisdiction (including those pertaining to currency exchange controls, health, safety or the
environment, antitrust, competition, anti-terrorism, anti-money-laundering, anti-bribery, sanctions and data
protection/ privacy issues) to the extent that the foregoing are applicable to either or both of the parties hereto
and/or their respective properties.
"Applicable Privacy Law": All Applicable Law in force from time to time relating to data protection and privacy or
the protection of individuals with regards to the processing of Personal Data, including (but not limited to) (i) the
EU GDPR, (ii) the UK GDPR, and (iii) the UK Data Protection Act 2018, (iv) California Consumer Privacy Act of 2018,
and (v) Act of Protection of Personal Information in Japan, in each case to which the relevant party is subject.
"Authorized Person": Has the meaning ascribed to it in Section 9(b) hereof.
“Company”: Has the meaning of Prism Software Corp.
"Company Indemnified Party(ies)": Company and its respective successors and permitted assigns, and all officers,
directors, shareholders, employees, agents, and representatives of any of the foregoing.
"Customer": The Person issuing a valid purchase order to either Company or to Reseller for receiving or
subscribing to the Solution, together with its successors and permitted assigns.
"Customer Indemnified Party(ies)": Customer and its respective successors and permitted assigns, and all officers,
directors, shareholders, employees, agents, and representatives of any of the foregoing.
184 Technology Drive, Suite 201
Irvine, CA 92618, USA
http://www.prismsoftware.com
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"Data": The data contained within the Software System that is uploaded by Customer or generated by activity
undertaken by Customer on the Software System. Other types of Data may be specified in a relevant Product
Schedule.
"Data Processing Addendum": The Company data processing addendum with respect to the processing of the
Personal Data provided by Customer to Company separately entered into by the parties on or around the date of
this Agreement.
"EU GDPR": The European General Data Protection Regulation No. 2016/679 dated 27 April 2016.
“Hosting Provider”: Has the meaning of ascribed to it in Section 4.
"Information": Has the meaning ascribed to it in Section 9(a) hereof.
"Intellectual Property": Any proprietary patent, copyright, trade secret, trademark, service mark, logo, domain
name, moral rights or other enforceable intellectual property rights (including rights in proprietary data bases and
privacy rights), each as recognized under Applicable Law.
“Offline Data Storage”: Any Customer data that shall be archived in an offline, non-hosted environment.
"Person": Any natural person, sole proprietorship, corporation, joint stock company, business trust, firm, joint
venture, partnership, unincorporated organization, association, enterprise, limited liability company, limited
liability partnership, public benefit corporation, trust or other legal entity or organization, or any government
(whether federal, state, provincial, county, city, municipal or otherwise, including any instrumentality, division,
agency, body, political subdivision or department thereof).
"Personal Data": Has the meaning ascribed to it in Section 9(d) hereof.
"Product(s)": Software and, where applicable, the complementary hardware, as described in the relevant Product
Schedule(s).
"Privacy Policy": The policy of Company regarding the processing of Personal Data separately agreed between the
Customer and the Company.
"Product Schedule": Each product schedule attached to this Agreement from time to time governing the services
to be provided by Company to Customer, as executed by Customer and Company either contemporaneously
herewith or at a later time, as well as any exhibit(s) or schedule(s) thereto.
“Reseller”: A Company-authorized reseller of Solution.
"Services": Those services described on the relevant Product Schedule(s).
"Software": Collectively, the proprietary software of Company and the software of other Persons used by
Company in connection with the provision of the Solution.
"Software System": The Software, combined with the cloud and other services that Company offers to Customer,
which enable Customer to use the Solution, as described in the relevant Product Schedule.
"Solution(s)": Product(s), and related hosting, support and professional services, as described in the relevant
Product Schedule(s).
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“Subscription Cost”: Is the net payment amount received by Company (either paid by Customer directly to
Company or paid by Reseller to Company on behalf of Customer) for the Term of the use of the Software System.
Such Subscription Cost may be either a lump sum for duration of the Term or a monthly or other periodic payment
agreed to between Customer and Company, and if applicable, Reseller.
"Term": Has the meaning ascribed to it in Section 10(a) hereof.
"UK GDPR": EU GPR in such form as incorporated into the law of England and Wales, Scotland and Northern
Ireland by virtue of the European Union (Withdrawal) Act 2018 and any regulations thereunder.COMPANY IMPLEMENTATION AND OPERATION.
(a) Solution Use Rights. During the Term, Company agrees to provide the Solution to Customer subject to the
terms and conditions set forth in this Agreement and the relevant Product Schedule(s). Company reserves the right
to modify or amend the Solution from time to time; provided that such modifications or amendments do not
materially adversely affect the Solution or the obligations of either party under this Agreement. Company hereby
grants to Customer the right to access and use the Software System as described in the relevant Product Schedule
from time to time, as applicable.
(b) Data License Grant. For the sole purpose of displaying of Customer’s Data to the Customer as contemplated by
this Agreement, and as set forth in Section 2(c) hereof and subject to any other applicable sections and/or
agreements covering specific Data, Customer grants to Company a royalty free, worldwide, non-exclusive license,
to use, reproduce, display and modify (including modifications to formatting that are required for proper display
within the Software System) the Data provided by Customer by using the Solution during the Term. Customer shall
notify Company in writing within five (5) business days of its knowledge of, and will promptly and thoroughly
respond to any notices, claims or proceedings that the Data supplied by Customer contravenes or violates the
Digital Millennium Copyright Act, 17 U.S.C. § 101 et seq., or any other Applicable Law, as each of such may be
amended from time to time. Subject to the license granted above, title and all Intellectual Property rights to Data
shall remain with the Customer providing such Data.
(c) Data Use. Notwithstanding the foregoing, Company shall have the unrestricted right to use any Data provided
by anyone to the Software System (i) for the purposes of providing the Solution set forth in its agreements with
Customer and pursuant to any relevant Product Schedules with Customer including new Services, and (ii) for the
operational, administrative, internal reporting and billing purposes related to this Agreement.
(d) No Monitoring. Company shall have no obligation to monitor or exert editorial control over any Data or any use
of the Solution.
(e) Compliance with Laws. Customer shall comply with all Applicable Law applicable to the conduct of its
obligations under this Agreement.OWNERSHIP.
Company or its respective licensor retains all right, title, and interest in and to the Solution, including all
Intellectual Property associated therewith, and all derivative works thereof, and in all media, but specifically
excluding Data that at all times shall remain the property of the Customer. Other than a royalty-free right to use
the Solution and any relevant Company product or Service subject to an executed Product Schedule during the
Term, nothing contained herein shall be construed as the grant of a license or other right by Company to
Customer. Customer agrees that it will not, and will not permit employee of Customer, or other Person to: (a)
modify, adapt, alter or translate the Software System or any Company product or Service, except as expressly
allowed herein; (b) sublicense, lease, rent, loan, distribute, or otherwise transfer the Solution or its part, or any
Company product or Service, including, software, associated user interfaces, and any related technology or
services that Company makes available via the Solution or its part, and all updates and upgrades thereto, if any, to
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any other Person; or (c) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to
derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of Solution or
its part, or any other Company product or Service. The copyright and all other Intellectual Property Rights in the
Solution, and all Company products and Services are the sole and exclusive property of Company or its suppliers.
All rights not expressly granted to Customer are reserved to Company.Hosting Provider
(a) Hosting Provider is defined as the secure online environment that hosts the Software application and the
Customer Active Data Storage.
(b) The Hosting Provider shall be:
• Microsoft Azure
• Information about Microsoft Azure may be found here: https://azure.microsoft.com/en-
in/resources/cloud-computing-dictionary/what-is-
azure#:~:text=Azure%20is%20the%20only%20consistent,Windows%20Server%20and%20SQL%20Ser
ver.Active Data Storage & Offline Data Storage
(a) Active Data Storage and Processing Facilities. Company may store and process Customer Data anywhere its
Hosting Provider maintains facilities with such geography limited to the continental United States.
(b) Offline Data Storage for Older Data. Company may, at its own discretion, store Customer’s data offline for any
Customer data that may be older than six (6) months. Such offline data storage shall be in an encrypted,
password protected RAID-enabled storage environment. Company shall have access to such Offline Data
Storage at any time, however, Customer shall provide Company with 3 business days’ notice to obtain access to
such Offline Data Storage.WARRANTIES, REMEDIES AND COVENANTS.
(a) Customer Representations, Warranties and Covenants. Customer represents, warrants, and covenants to
Company, at the Effective Date and as of the effective date of any Product Schedule, that:
(i) Customer is duly organized and validly existing under the laws of the jurisdiction of its organization;
(ii) Customer, as the case may be, own or have sufficient rights in and to the Data supplied by Customer to grant
the rights set forth in this Agreement and to permit Company to exercise its rights and to perform all of its
obligations under this Agreement and any applicable Product Schedule;
(iii) With respect to the Data supplied by Customer, neither Company's receipt, use or display (over the Internet
or otherwise), nor Company's use or delivery to Customer of such Data supplied by Customer, as contemplated
by this Agreement and any applicable Product Schedule, will, to the best of Customer's knowledge, violate the
Intellectual Property rights of any third Person or any Applicable Law;
(iv) Customer has the requisite power and authority to execute, deliver and perform this Agreement, and the
execution by a duly authorized officer, delivery, and performance of this Agreement by Customer has been duly
authorized by all necessary corporate action required by Customer, and constitutes a valid and binding obligation
of Customer, enforceable against Customer in accordance with its terms, subject as to enforceability to
applicable insolvency, reorganization, insolvency, moratorium or other Applicable Law affecting creditors’ rights
generally;
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(v) The execution, delivery and performance by Customer of the Agreement, does not violate any provision of
Customer's organizational documents or, to the best of Customer's knowledge, any Applicable Law; and
(vi) Each Person that purports to make an entry in the Software System on behalf of Customer has been duly
authorized by Customer to do so and each entry by Customer in the Software System purporting to be by
Customer is duly authorized by and is binding on Customer, save where such entry is a result of an unauthorized
unlawful access by a Person of the Software System which could not have been reasonably expected or
prevented by Customer.
(b) Company Representations, Warranties and Covenants. Company represents, warrants, and covenants to
Customer, at the Effective Date and as of the effective date of any Product Schedule, that:
(i) Customer's use of the Software System will not violate the Intellectual Property rights of any Person not a
party hereto;
(ii) Company will provide the Solution in a timely, professional and workmanlike manner, and in compliance with
all Applicable Law and industry standards;
(iii) Company shall maintain industry standard security measures and procedures for the Software System;
(iv) The Software System will conform to, and function in accordance with, the specifications set forth in this
Agreement, including any exhibits or schedules attached hereto;
(v) The execution, delivery and performance of this Agreement by Company has been duly authorized by all
necessary corporate or other action required by Company and this Agreement (A) has been duly executed and
delivered on behalf of Company by a duly authorized officer, (B) constitutes the valid and binding obligation of
Company, and (C) is enforceable against Company in accordance with its terms, subject as to enforceability to
applicable insolvency, reorganization, insolvency, moratorium or other Applicable Law affecting creditors' rights
generally;
(vi) Company is duly organized and validly existing and is in good standing under the laws of Delaware; and
(vii) The execution, delivery and performance by Company of this Agreement does not violate (A) any provision
of Company’s organizational documents or (B) any material agreement or any court order to which it is a party or
by which it is bound.
Customer's sole remedy for breach of the representation and warranty set forth in Section 6(b)(i) above, and
Company's sole obligation with respect to any such breach, is set forth in Section 7(a) hereof.
(c) Disclaimer. Except as expressly set forth in Section 6(b) hereof and in any Product Schedule, no warranties or
conditions, whether express, implied or statutory, including the implied warranties of satisfactory quality and
fitness for a particular purpose and the ability to achieve any particular result, are made by Company with respect
to the Solution provided by Company, and such Solution is provided on an "AS-IS, WHERE-IS and AS AVAILABLE"
basis. Company expressly disclaims liability and specifically denies any responsibility for the completeness,
accuracy or quality of any information or data obtained through the Software System or Solution. Subject to
Section 6(b)(iii) above, the use of Data or information obtained via the Solution is at Customer's own risk.INDEMNITY
(a) Indemnity by Company. Company shall indemnify and defend each Customer Indemnified Party and hold each
of them harmless from and against any claims, liabilities, damages and costs and expenses (including reasonable
attorneys' fees) awarded against or incurred by any Customer Indemnified Party arising out of the intentional
tortious acts, fraud or gross negligence of Company, or a claim that use by Customer of the Software System in
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accordance with this Agreement infringes the Intellectual Property rights of any Person not a party hereto.
Customer shall promptly notify Company of the assertion of such claim, and Company shall have full control of its
defense or settlement with the reasonable cooperation of the Customer Indemnified Parties. Notwithstanding the
foregoing, Company shall have no obligation to any Customer Indemnified Party under this Section 7 if an
infringement claim results from:
(i) Information supplied by any Person other than Company, or
(ii) Misuse of the Solution by Customer. In the event of a claim that use by Customer of the Solution in
accordance with this Agreement infringes the Intellectual Property rights of any Person not a party hereto,
Company may, at its option, (1) obtain a license to use such Intellectual Property or other rights as may be
necessary to allow Customer to continue use of the Solution in accordance with this Agreement and the Product
Schedules, (2) modify the Solution so as not to infringe such Intellectual Property rights, or (3) terminate this
Agreement upon ten (10) days' prior written notice to Customer.
(b) Indemnity by Customer. Customer shall indemnify and defend the Company Indemnified Parties, together with
their respective successors and permitted assigns, and all officers, directors, shareholders, employees, agents, and
representatives of any such Person, and hold each of them harmless from and against any claims, liabilities,
damages, costs, and expenses (including reasonable attorney's fees) awarded against or incurred by any of the
foregoing arising out of:
(i) Any breach by Customer of any of its representations, warranties or covenants in this Agreement or any
Product Schedule which results in a material loss for any of the aforesaid;
(ii) The intentional tortious acts, fraud or gross negligence of Customer in connection with the performance by
Customer, or otherwise related to, this Agreement or any Product Schedule; or
(iii) A claim that the Data provided by Customer infringes the Intellectual Property rights of a Person not a party
hereto. With respect to matters for which indemnification is claimed under this Section 7(b)(iii), one or more
Company Indemnified Parties shall promptly notify Customer of the assertion of such claim, and Customer shall
have full control of its defense or settlement with the reasonable cooperation of the Company Indemnified
Parties; provided, that Company and any other affected Company Indemnified Party shall have the right to
consent to any settlement other than any settlement which solely involves monetary damages that Customer has
agreed to pay.NO PUNITIVE OR CONSEQUENTIAL DAMAGES; LIMITATION OF LIABILITY.
(a) Consequential Damages. Except for a breach of Section 9 or misuse by Customer of Company's Intellectual
Property, in no event shall either party be liable to the other party or to any other Person for any indirect loss,
including loss of time, money or goodwill, incidental, special, exemplary, consequential or punitive damages of any
kind under any legal theory or cause of action, in each case based on either party’s use, inability to use, operate or
modify the Solution. For the avoidance of doubt, indirect loss includes loss of use, lost business, lost revenue, lost
profits, lost data, and/or lost goodwill even if the party knew or should have known of such damage.
(b) Limitation of Liability. Company’s total liability for proven direct damages resulting from any cause of action (or
a related series of actions) arising out of this Agreement, the Product Schedules and/or the Solution shall be
limited to (i) in the case of a breach of any Applicable Privacy Law, the amount of fees received by Company arising
from the affected Product Schedule(s) during the 3 (three) month period immediately preceding the date on which
the cause(s) of action accrued, or (ii) in any other case, the amount of fees received by Company arising from the
affected Product Schedule(s) during the three (3) month period immediately preceding the date on which the
cause(s) of action accrued. Notwithstanding the foregoing, the limitations in this section 8(b) (nor those in similar
sections of the Product Schedules) are not applicable to damages resulting from (i) a party’s intentional tortious
acts, fraud or gross negligence, (ii) death or personal injury resulting from the negligence of a party, its employees,
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agents or sub-contractors, or (iii) Customer’s obligation to pay any amounts payable by Customer that are
established under any Product Schedule. Each party acknowledges that the limitations of liability in this Section 8
reflect the allocation of risk set forth in this Agreement and that the other party would not enter into this
Agreement without these limitations on its liability.INFORMATION.
(a) Confidentiality. Each party acknowledges that (i) the Software System incorporates confidential and
proprietary information developed or acquired by Company, including the Company Software, and (ii) each party
may receive or have access to other proprietary or confidential information disclosed by a disclosing party and
reasonably understood by a receiving party to be of a confidential and proprietary nature, including the
identifications and passwords for use of the Software System (collectively, (i) and (ii), the "Information"). The
receiving party shall use the disclosing party's Information solely to perform such receiving party's obligations and
exercise its rights under or in relation to this Agreement, any applicable Product Schedule, or any associated
agreements or documents. The receiving party shall take precautions necessary to safeguard the confidentiality of
the disclosing party's Information, including (i) those taken by the receiving party to protect its own confidential
information of a similar nature (but in no case shall the precautions taken be less than those reasonable in light of
the nature of the Information disclosed) and (ii) those that the disclosing party may reasonably request from time
to time. Upon demand by either party upon completion by a party of its obligations hereunder, the other party will
destroy Information disclosed to it hereunder. Notwithstanding the foregoing, no provision of this Section 9 shall
require the destruction by the receiving party of any files: (i) retained for audit or record retention purposes; or (ii)
computer records or electronic files containing Information that have been created pursuant to automatic
archiving and back up procedures, provided that such Information so retained is kept confidential and used solely
in accordance with the provisions set out in this Section 9.
(b) Unauthorized Use or Disclosure. Each party may only disclose Information to its affiliates, and the directors,
officers, and employees of such party and its affiliates (collectively, "Authorized Persons"): (i) who have a bona
fide need to know for the purposes of this Agreement, (ii) who have executed a written agreement (or are
otherwise bound by written agreement or equivalent professional ethical obligations) restricting use and
disclosure of such Information to no less an extent as that required of the parties under this Agreement, and (iii) so
long as the receiving party remains liable for any unauthorized use or disclosure of the disclosing party’s
Information by any such Authorized Person. Except as set forth herein, the parties agree not to disclose to any
third Person, any Information which may come into its possession or knowledge in connection with this Agreement
or the performance thereof, including, information relating to the parties’ businesses. The parties acknowledge
that any unauthorized use or disclosure of any Information by the receiving party may cause irreparable damage to
the disclosing party or disclosing Person, the remedies at law for such a breach may be inadequate, and that the
disclosing party or disclosing Person, as applicable, shall be entitled to seek injunctive and other equitable or legal
relief to prevent or compensate for such unauthorized use or disclosure, in addition to any other remedies
available. This Section 9 shall survive the expiration or termination of this Agreement for a period of two (2) years,
except that the obligations of this Section 9 will remain in effect with respect to Information that qualifies as a
trade secret for as long as such Information constitutes a trade secret under Applicable Law.
(c) Limitation. The receiving party shall have no obligation to safeguard the confidentiality of a disclosing party’s
Information if (i) such Information is known through lawful means by the receiving party prior to receipt from the
disclosing party as evidenced by the written records of the receiving party, (ii) such Information is lawfully
obtained by the receiving party from a Person other than the disclosing party without restriction, (iii) such
Information becomes available to the public through no act or omission of the receiving party, (iv) such
Information is independently developed by the receiving party without access to, reference to, or knowledge of
the Information as evidenced by the written records of the receiving party, (v) the receiving party is compelled to
disclose such Information pursuant to legal process, provided the receiving party promptly notifies the disclosing
party of the service of such legal process to the extent permitted by Applicable Law and cooperates with the
disclosing party in seeking confidential treatment thereof, or (vi) such Information is requested or required to be
disclosed by any state, federal or foreign authority or examiner regulating financial institutions or banking (but
only for purposes of the disclosure to the applicable authority or examiner); provided, however, that after
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disclosure under 10(c)(v) or (vi) above, the Information at issue shall continue to be protected under the terms of
Section 9 for all other purposes.
(d) Protection of Personal Data. Terms in this Section 9(d) which are otherwise undefined shall have the meaning
assigned to them in the UK GDPR or EU GDPR, as applicable. In connection with operating the Software System and
providing the Solution, Company will from time-to-time process data that identifies or reasonably can be used to
identify a living individual provided by or received on behalf of Customer ("Personal Data"). Such processing is
performed in order to fulfil Company’s obligations under this Agreement and applicable transaction documents.
Both Company and Customer agree to comply with their obligations in application of the UK GDPR or EU GDPR, as
appplicable, and any and all related Applicable Privacy Law which for the purposes hereof applies to the relevant
party. The parties acknowledge that with respect to the processing of Personal Data under this Agreement,
Customer shall be a data controller for the purposes of its use of the Software System, and Company shall be (i) a
data controller solely for the purposes of the processing of certain Personal Data of Customer’s employees as set
forth in the Privacy Policy; and (ii) a data processor for all other purposes; and that in all aspects not expressly
addressed herein the Company’s Data Sharing and Confidentiality Agreement and, in the case of Protected Health
Information (PHI), either the Customer’s or Company’s Business Associate Agreement shall govern Company’s use
of any Personal Data as a data processor under this Agreement, and each party agrees to adhere to their
respective obligations under the Data Sharing and Confidentiality Agreement and Business Associate Agreement.TERM AND TERMINATION.
(a) Term. Subject to earlier termination as described below or elsewhere in this Agreement, this Agreement shall
commence on the Effective Date and shall remain in effect for period set forth in the applicable purchase order
(the "Term").
(b) Termination for Cause. In addition to the rights of Company to restrict Customer's access to the Software
System or terminate this Agreement as set forth elsewhere in this Agreement, either party may terminate this
Agreement (and/or any Product Schedule) upon notice to the other party if such other party breaches a material
provision of this Agreement and fails to cure such breach within forty-five (45) days following written notice from
the non-breaching party to the breaching party, specifying such breach and which agreement(s) are subject to
termination. In addition, this Agreement and any Product Schedule(s) shall terminate immediately and
automatically upon (i) the occurrence of the applicable insolvency with respect to either party, (ii) receipt of
written notice from Company for the breach by Customer of the use restrictions set forth in Section 3, or (iii)
receipt of written notice from the non-breaching party for the intentional breach by either party of Section 9
hereof.
(c) Termination for Convenience. Neither party may terminate this Agreement for convenience or any other
reason except as set forth in Section 10(b).
(d) Effect of Termination. All rights, duties and obligations of the parties shall terminate upon the expiration or
termination of this Agreement, unless otherwise specified in a Product Schedule.
(e) Survival of Terms. The rights and responsibilities of the parties hereto under Sections 1, 2(c), 2(e), 3, 6, 7, 8, 9,
10, 12, 13, and 14 will survive expiration or earlier termination of this Agreement along with any other provisions
which by their nature extend beyond any such expiration or termination. The termination of this Agreement
howsoever caused shall be without prejudice to the rights, duties and liabilities of either party accrued prior to
termination.
(f) Refund of Subscription Cost.
(i) In the event of Termination for Cause by Customer, as outlined above in Section 10(b), where such
Subscription Cost has been prepaid by Customer for the Term, Customer shall be entitled to a prorated refund of
the unused Subscription Cost from the date of the uncured material breach by Company to the end of the Term.
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Such unused prorated Refund of Subscription Cost calculation shall be based upon the net revenue received by
Company from the Reseller, or if no Reseller, then by Company from the Customer.
(ii) In the event of Termination for Cause by Customer, as outlined above in Section 10(b), where such
Subscription Cost has been paid periodically, such as monthly, by Customer for the Term, Customer shall not be
required to make any additional payments from the date of the uncured material breach by Company to the end
of the Term.
(iii) In the event of Termination for Cause by Company, as outlined above in Section 10(b), where such
Subscription Cost has been prepaid by Customer for the Term, Company shall be entitled to retain the unused
Subscription Cost from the date of the uncured material breach by Company to the end of the Term.
(iv) In the event of Termination for Cause by Company, as outlined above in Section 10(b), where such
Subscription Cost has been paid periodically, such as monthly, by Customer for the Term, Customer shall
immediately owe to Company a lump sum of the remaining unpaid prorated amount of the Subscription Cost
from the date of the uncured material breach by Customer to the end of the Term.
(v) In the event of Termination by Customer for any reason other than Termination for Cause (including, but not
limited to, Termination for Convenience), as outlined above in Section 10(b); (1) where such Subscription Cost
has been prepaid by Customer for the Term, Company shall be entitled to retain the unused Subscription Cost
from the date of the uncured material breach by Company to the end of the Term, or (2) where such
Subscription Cost has been paid periodically, such as monthly, by Customer for the Term, Customer shall
immediately owe to Company a lump sum of the remaining unpaid prorated amount of the Subscription Cost
from the date of the uncured material breach by Customer to the end of the Term. In no event shall Customer
be entitled to any refund of the Subscription Cost.FORCE MAJEURE.
Any delay in or failure of performance by either party under this Agreement (other than Customer’s failure to
make any payment when due) shall not be considered a breach of this Agreement if and to the extent caused by
events beyond the reasonable control and without the fault of the party affected, including but not limited to acts
of God, hurricanes, earthquakes, embargoes, governmental restrictions, strikes, riots, insurrection, wars, or other
military action, civil disorders, rebellion, fires, floods, widespread failures of the Internet or telecommunications
systems, vandalism, cyberattack, acts of domestic or foreign terrorism, or sabotage. Market conditions and/or
fluctuations (including a downturn of either party’s business) shall not be deemed force majeure events. The party
whose performance is affected by such events shall promptly notify the other party, giving details of the force
majeure circumstances, and the non-payment obligations of the party giving such notice shall be suspended to the
extent caused by the force majeure so long as the force majeure continues, and the time for performance of the
affected obligation hereunder shall be extended by the time of the delay caused by the force majeure event.GOVERNING LAW; SUBMISSION TO JURISDICTION; SERVICE OF PROCESS; CHOICE OF
FORUM.
This Agreement shall be governed, construed, and enforced by and interpreted in accordance with the Laws of the
State of California without giving effect, however, to California`s choice of law rules, and any action related hereto
shall be brought exclusively in the State or Federal Courts of the State of California, USA.RIGHT OF THIRD PARTIES.
Subject to Section 14(c) and except as may be set forth in a Product Schedule, it is agreed that this Agreement is
not intended to, and does not, give to any person who is not a party to this Agreement any rights to enforce any
provisions contained in this Agreement except for any person to whom the benefit of this Agreement is assigned
or transferred in accordance with Section 14(c) (Assignment). Except as may be set forth in a Product Schedule, the
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consent of any person who is not a party to this Agreement is not required to terminate or vary this Agreement at
any time.MISCELLANEOUS.
(a) Entire Understanding. This Agreement, together with any relevant Schedules, contains the entire
understanding of the parties hereto and supersedes all prior agreements and understandings, if any, relating to the
subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and
hereinafter made shall have no force and effect unless in a writing signed by the party making the same. No
modification hereof shall be effected by either party's use of an order acknowledgment or other form containing
additional or different conditions. Each of the parties hereto acknowledges that it has been advised by counsel in
connection with the execution of this Agreement and that it is not relying upon oral representations or statements
inconsistent with the terms and provisions of this Agreement. The Solution is provided only to Customer. Resale to
or use of the Solution by any Person other than Customer or any other Person, is prohibited. Each party
acknowledges and confirms to the other party that it does not enter into this Agreement in reliance on any
representation or warranty or other undertaking not fully reflected in the terms of this Agreement and its only
remedy is for breach of contract provided that this will not exclude any liability which either party would otherwise
have to the other in respect of any statements made fraudulently prior to the date of this Agreement.
(b) Waivers and Modifications. Neither this Agreement nor any portion or provisions hereof may be changed,
modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing,
or in any manner other than by an agreement in writing, signed by the parties or, in the case of any waiver of any
provision, by the party waiving the benefit of such provision. No failure on the part of either party to exercise, and
no delay in exercising, any right or remedy hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any right or remedy hereunder preclude any other right or remedy or further exercise thereof or
the exercise of any other right or remedy granted herein.
(c) Assignment. This Agreement shall be binding on and inure to the benefit of Customer and Company and their
respective successors and permitted assigns. Neither party may assign this Agreement or its rights hereunder, or
delegate performance of its obligations hereunder, to another Person without the prior written consent of the
other party and any assignment not made in compliance with this Section 14 (c) shall be null and void; provided,
however, that Customer and Company may freely assign this Agreement or its obligations or rights hereunder to a
Person acquiring all or substantially all of its assets, equity interests, Solution, or Software. Customer
acknowledges that Company reserves the right to use subcontractors or other Persons not party hereto to fulfill its
obligations hereunder; provided, that Company shall remain primarily liable for the performance of all of its
obligations hereunder by such subcontractors or other Persons.
(d) Severability. Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be
effective and valid under Applicable Law, but if any provision of this Agreement shall be prohibited by or invalid
under Applicable Law, such provision shall be ineffective to the extent of such prohibition or invalidity without
invalidating the remaining provisions of this Agreement. The remaining provisions shall be construed in such a
manner as to carry out the full intention of the parties hereto.
(e) No Agency. Except as expressly provided in any Product Schedule to this Agreement, the performance by each
party of its duties and obligations under this Agreement shall be that of an independent contractor and there shall
not be any agency, fiduciary relationship, joint venture or partnership between the parties by reason of this
Agreement.
(f) Construction. Should any provision of this Agreement require judicial interpretation, the parties agree that the
court interpreting or construing the same shall not apply a presumption that the terms of this Agreement shall be
more strictly construed against one party than against another, because the parties participated equally in
preparing this Agreement. All exhibits and schedules referenced in this Agreement are incorporated herein by this
reference. In the event of any conflict between the schedules attached to this Agreement and the other provisions
of this Agreement, the terms of this Agreement shall control; provided, however, in the event of any conflict
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between a Product Schedule attached to this Agreement and the other provisions of this Agreement, the terms of
the Product Schedule shall control. Headings of particular sections are inserted only for convenience and are not to
be considered a part of this Agreement or be used to define, limit or construe the scope of any term or provision of
this Agreement. All terms defined in the singular shall have the same meanings when used in the plural, and vice
versa. All pronouns used shall be deemed to cover all genders. Unless the context otherwise specifically requires,
all references to sections of this Agreement shall refer to all subsections thereof.
(g) Anti-Bribery Laws. The parties, their officers, directors, employees, agents and affiliates, and anyone for whose
acts or defaults they may be vicariously liable or anyone acting on behalf of any of them, shall not make any
payments in violation of any applicable anti-bribery Law in connection with or in any way relating to or affecting
this Agreement. The parties acknowledge that international anti-corruption Laws, including the U.S. Foreign
Corrupt Practices Act ("FCPA") and the U.K. Bribery Act 2010 ("UKBA"), prohibit any direct or indirect
payment/receipt of money or anything of value to/from any person (including but not limited to any government
office, international organization, non-exempt political party, party official or candidate for political office) for the
purpose of obtaining, retaining or directing business, securing any improper advantage in the conduct of business
or inducing the improper performance of any public or business-related function. The parties represent and
warrant that in the performance of its obligations under this Agreement or otherwise in connection with this
Agreement it has not made and agrees that it will not make any such prohibited payment. Neither party shall be
obligated under this Agreement to take any action or omit to take any action that it believes in good faith, would
cause it to be in violation of any Applicable Laws.