This MASTER AGREEMENT (the “Agreement”), dated as of the date signed by both parties below (the “Effective Date”), is entered into by V3 Cybersecurity, Inc., a Florida corporation (“V3 Cybersecurity”), with a principal address of 9838 Old Baymeadows Rd #335, Jacksonville, FL 32256, and Client,. d/b/a Client (hereinafter, the “Client”). The parties agree as follows:
This Agreement (the “Agreement”) governs the purchase, access, and use of Products by the Customer listed on an Order (hereinafter “Customer” or “You” or “Your”).
In order to use or receive the benefits of any Product, You must purchase the applicable Product through an Order. If V3 Cybersecurity, Inc. introduces new Products in the future, such Products will be governed by this Agreement, depending on their Product category (i.e. SaaS, Software, Hardware, etc.).
If You are receiving access to or use of Products for proof of concept, beta testing, interactive demo, or other similar evaluative purposes (the “Evaluation Products”), then You may only use the Evaluation Products for Your own internal evaluation purposes for a period of up to thirty (30) days (or a pre-set shorter period for interactive demos) from the date of first access to the Evaluation Products. You and V3 Cybersecurity, Inc. may, upon mutual written agreement, extend the Evaluation Period. At the end of the Evaluation Period, You must delete all Software and other components (including Documentation) related to the Evaluation Products, or You may be invoiced for the then-current list price for the Evaluation Products. If you are evaluating SaaS, You understand that V3 Cybersecurity, Inc. may disable access to the SaaS automatically at the end of the Evaluation Period, without notice to You. At the end of the Evaluation Period, Customer Data will be deleted pursuant to V3 Cybersecurity, Inc.’s data retention policy, unless otherwise agreed to by the parties. If You are participating in an interactive demo, You agree and understand that You will receive one instance of the SaaS which is shared with other prospective V3 Cybersecurity, Inc. customers and users. For any Evaluation Products, only Sections 6, 7, 9.6, 10, 11, 12, 13, 15, and the applicable Definitions in Section 1 of this Agreement shall apply. THE EVALUATION PRODUCTS ARE PROVIDED “AS IS”, AND TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, V3 CYBERSECURITY, INC. DISCLAIMS ALL WARRANTIES RELATING TO THE EVALUATION PRODUCTS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES AGAINST INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
IF YOU HAVE ARRIVED AT THIS PAGE DURING THE PROCESS OF INSTALLING, DOWNLOADING, ACCESSING, OR DEPLOYING A PRODUCT, YOU ACKNOWLEDGE AND AGREE THAT BY PROCEEDING WITH THE INSTALLATION, DOWNLOAD, ACCESS, DEPLOYMENT, OR USE OF THE PRODUCT, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS IN THIS AGREEMENT. IF YOU DO NOT UNCONDITIONALLY AGREE TO THE FOREGOING, DISCONTINUE THE INSTALLATION, DOWNLOAD, ACCESS, DEPLOYMENT, OR USE. IF YOU PROCEED WITH INSTALLATION, DOWNLOAD, ACCESS, DEPLOYMENT, OR USE, YOU ARE REPRESENTING AND WARRANTING THAT YOU ARE AUTHORIZED TO BIND THE CUSTOMER.
This Agreement may be periodically updated, and the current version will be posted at https://v3cybersecurity.com/msa. Your continued use of the Products after a revised Agreement has been posted constitutes your acceptance of its terms.
1. DEFINITIONS
1.1. “Affiliate” means, with respect to a party, any entity which directly or indirectly Controls, is Controlled by, or is under common Control with such party. “Control” means 50% or greater voting power, or otherwise having the power to govern the financial and the operating policies or to appoint the management of an organization.
1.2. “Aggregated Data” means Customer Data (i) anonymized, and not identifiable to any person or entity, (ii) combined with the data of other customers or additional data sources, and (iii) presented in a manner from which Customer’s or Customer Users’ identity may not be derived.
1.3. “Customer Data” means all data or information submitted by or on behalf of Customer to the Products.
1.4. “Customer User” means an employee, agent, contractor, or other third party authorized by Customer and/or its Affiliates to access, use, download, deploy, or install the Products.
1.5. “DS” means the deployment services provided to Customer, as further described in the Product Sheets.
1.6. “Documentation” means the documentation and usage guides for the Products, as updated from time to time by V3 Cybersecurity, Inc.
1.7. “Fees” means any fees paid or to be paid for Products under an Order (SOW or Quote).
1.8. “Force Majeure Event” means an event which is unforeseeable, beyond the control of the party affected, and cannot be remedied by the exercise of reasonable diligence, including without limitation: acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes; computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within V3 Cybersecurity, Inc.’s possession or reasonable control; and denial of service attacks.
1.9. “Infrastructure” means the V3 Cybersecurity, Inc.-provided infrastructure including hardware, software, and third-party hosting used to connect to the SaaS, as further described in the Product Sheets.
1.10. “Intellectual Property Rights” means copyrights (including, without limitation, the exclusive right to use, reproduce, modify, distribute, publicly display and publicly perform the copyrighted work), trademark rights (including, without limitation, trade names, trademarks, service marks, and trade dress), patent rights (including, without limitation, the exclusive right to make, use and sell), trade secrets, moral rights, right of publicity, authors’ rights, contract and licensing rights, goodwill and all other intellectual property rights as may exist now and/or hereafter come into existence and all renewals and extensions thereof, regardless of whether such rights arise under the law of the United States or any other state, country or jurisdiction.
1.11. “Location” means a subscription for a specific access point to the Internet in connection with the SaaS.
1.12. “Order” means a written order form/sales proposal, purchase order, or similar ordering document for Products submitted to, and approved, by V3 Cybersecurity, Inc. and/or Partner.
1.13. “Partner” means the V3 Cybersecurity, Inc. approved partner authorized by V3 Cybersecurity, Inc. to resell or otherwise provide Products to end user customers.
1.14. “Products” means, collectively, all V3 Cybersecurity, Inc. SaaS, Software, Hardware, DS, and Support Services, including all Upgrades.
1.15. “Product Sheets” means the V3 Cybersecurity, Inc. materials available at www.v3cybersecurity.com that provide Product descriptions, service levels, and terms applicable to specific Products.
1.16. “SaaS” means the subscription cloud-based service provided by V3 Cybersecurity, Inc. for the Subscription Term set forth in the Order, or as further described in the Product Sheets.
1.17. “Software” means any V3 Cybersecurity, Inc. software, utility, tool or other computer or program code, in object (binary) or source-code form provided, directly or indirectly to Customer as well as any copies (whether complete or partial) made by or on Customer’s behalf, as further described in the Product Sheets. The term “Software” also includes any updates, upgrades or other new features, functionality or enhancements to the Software made available directly or indirectly to Customer.
1.18. “Subscription Term” means the Initial Subscription Term and all Renewal Subscription Terms together.
1.19. “Support Services” means the support services provided by V3 Cybersecurity, Inc. with respect to each applicable Product, including Services as described at www.v3cybersecurity.com.
1.20. “Upgrades” means all cloud-wide modifications, enhancements and corrections to the Products made by V3 Cybersecurity, Inc., including corrections of failures to conform to or to operate in accordance with the Documentation; temporary and permanent error corrections delivered as part of the Support Services; and all additions, updates, new versions and releases, and new features, and changes made by V3 Cybersecurity, Inc. in response to legal, technological or other developments. For clarity, “Upgrades” does not include any additional features or enhancements made available to customers by V3 Cybersecurity, Inc. for an additional cost.
1.21. “V3 Cybersecurity, Inc.”, also referred to as “V3”, means V3 Cybersecurity, Inc., a Florida corporation with its principal place of business at 9838 Old Baymeadows Rd. #335, Jacksonville, FL 32256 USA.
1.22. ”V3 Cybersecurity, Inc. Materials” means all V3 Cybersecurity, Inc. proprietary materials, Intellectual Property Rights for all Products and Documentation, V3 Cybersecurity, Inc.’s processes and methods, and/or materials distributed by V3 Cybersecurity, Inc. during any presentations, proof of concepts, or demonstrations of V3 Cybersecurity, Inc. Products.
1.23. “Purchase Order” means a purchase order or purchase order exemption form, as the same may be amended in writing by Client and V3 Cybersecurity from time to time.
1.24. “Statement of Work” or “SOW” means the document incorporated herein by reference that defines the work activities, deliverables, if any, and pricing, which shall be governed by terms and conditions of this Agreement. Each Statement of Work shall include the following information, if applicable: (i) a detailed description of the Services and Deliverables to be performed pursuant to the Statement of Work; (ii) the date upon which the Services will commence and the term of such Statement of Work; (iii) the names of the key personnel of V3 Cybersecurity responsible for the Services; (iv) the fees to be paid to V3 Cybersecurity under the Statement of Work; (v) the timetable for providing the Deliverables; (vi) procedures for Client’s testing and acceptance of the Services and Deliverables; and (vii) any other terms and conditions agreed upon by the parties in connection with the Services to be performed pursuant to such Statement of Work. The SOW may be presented in executable quote form with reference to the relevant Product Sheets found at www.v3cybersecurity.com/product_sheets.
2. ORDERS
Customer and/or Customer Affiliates may purchase Products through an Order. All Orders shall be governed by the terms and conditions in this Agreement regarding Customer’s and its Affiliate’s access and use of the Products. For clarity, V3 Cybersecurity, Inc. will not be obligated to provide any Products to Customer or its Affiliate(s) until V3 Cybersecurity, Inc. receives a valid Order for such Products. Customer and any Customer Affiliate agrees that its purchase of any Products is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by V3 Cybersecurity, Inc. with respect to any future functionality or features.
3. EFFECTIVE DATE/TERM
This Agreement shall commence on the Effective Date and shall continue in full force and effect thereafter until terminated in accordance with the provisions of this Agreement. Each SOW shall commence on the date executed by both V3 Cybersecurity and Client with an initial term as set forth in such SOW and may be renewed for additional terms through a written amendment duly signed by each party.
4. OBLIGATIONS
4.1. V3 Cybersecurity shall provide to Client the services and deliverables (collectively, the “Services”) described in a SOW.
4.2. V3 Cybersecurity shall obtain, and at all times during the Term of this Agreement maintain, all necessary licenses and consents and comply with all relevant laws applicable to the provision of the Services.
4.3. Client shall communicate to V3 Cybersecurity in writing with all rules, regulations and policies of Client relating to procedures concerning systems and data and remote access thereto, building security procedures, including the restriction of access by Client to certain areas of its premises or systems for security reasons, and general health and safety practices and procedures that may be applicable to V3 Cybersecurity and its personnel in the performance of the Services hereunder for V3 Cybersecurity’s review.
4.4. V3 Cybersecurity shall maintain complete and accurate billing records related to an applicable SOW in accordance with generally accepted accounting principles to substantiate V3 Cybersecurity’s charges thereunder. During the Term and for a period of two years thereafter, upon thirty (30) days prior notice at Client’s written request, V3 Cybersecurity shall allow Client or Client’s representative to remotely inspect and make copies of such records specifically related to an applicable SOW. In no event shall Client conduct more than one (1) audit in a twelve (12) month period. All costs and expenses incurred by either party during the audit shall be paid by the Client. As applicable, any third-party representative used by Client (“Auditor”) shall sign a non-disclosure agreement with V3 Cybersecurity.
4.5. V3 Cybersecurity is responsible for all its personnel and for the payment of their compensation, including, if applicable, withholding of income taxes, and the payment and withholding of social security and other payroll taxes, unemployment insurance, workers’ compensation insurance payments and disability benefits.
4.6. Client shall provide to V3 Cybersecurity the information described in a SOW as V3 Cybersecurity may from time to time reasonably request in order to perform the Services.
4.7. Client acknowledges that V3 Cybersecurity will rely upon the accuracy of information provided by Client and that V3 Cybersecurity’s performance is dependent on Client’s timely and effective satisfaction of all of Client’s responsibilities hereunder and timely decisions and approvals by Client.
4.8. Annualized Services must be used each year during the term of the applicable SOW and such Services cannot be used and/or credited in subsequent years. Any Services not used within such timeframes shall be forfeited.
4.9Restrictions. Customer shall not (and will not allow any third party to): (i) modify, copy, display, republish or create derivative works based on the Products or V3 Materials; (ii) reverse engineer the Products; (iii) access the Products in order to build a competitive product or service, or copy any ideas, features, functions or graphics of the Products; (iv) use the Products to send spam or otherwise duplicative or unsolicited messages in violation of any applicable laws and/or regulations; (v) use the Products to send infringing, obscene, threatening, libelous, or otherwise unlawful material; (vi) use the Products to access blocked services in violation of any applicable laws and/or regulations; (vii) upload to the Products or use the Products to send or store viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs; (viii) use the Products to run automated queries to external websites (as the website may blacklist V3 IPs for all of its customers); (ix) interfere with or disrupt the integrity or performance of the Products or the data contained therein; (x) attempt to gain unauthorized access to the Products or its related systems or networks; (xi) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Products; (xii) perform penetration or load testing on the Products or V3’s cloud without the prior written consent of V3 and agreeing to certain conditions and requirements for such penetration or load testing; or (xiii) without the express prior written consent of V3, conduct any public benchmarking or comparative study or analysis involving the Products. Additionally, Customer agrees to: (i) use the Products solely for its internal business purposes; (ii) only permit access to the Products by Customer Users; (iii) comply with all Documentation provided by V3; and (iv) not access or use the Products from an embargoed nation, or denied party, in violation of U.S. trade and economic sanctions.
5. COMPENSATION
5.1. Fees. Client shall pay to V3 Cybersecurity the fees and expenses set forth in the SOW and Purchase Order. Travel and expenses are not included in the fees and will be billed separately as set forth in the SOW. Where Client designates use of a third-party payment processor network, Client shall be responsible for payment of all fees and charges associated with use of such network (including registration, participation, and payment processing fees) and V3 Cybersecurity may invoice such fees with other fees due under this section or on a separate invoice.
5.2. Payment Terms. V3 Cybersecurity will begin invoicing for the Services upon execution of the applicable SOW unless otherwise agreed to in the applicable SOW. Client shall pay V3 Cybersecurity’s invoices within thirty (30) days following the date of invoice. Fees for any purchased equipment are due and payable upon execution of this Agreement and/or the applicable SOW or Purchase Order.
5.3. Late Payment. Any undisputed amounts not paid within thirty (30) days of the date due shall accrue interest at the rate of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, determined and compounded on a daily basis from the date due until the date paid. Any invoices not disputed within five (5) days of receipt shall be deemed accurate and payable. V3 Cybersecurity reserves the right to disable Client’s Services if payment of undisputed sums is not made within 10 days of when otherwise due.
5.4. Taxes, Shipping, Title, & Risk of Loss. Client shall be responsible for all taxes (except for taxes on V3 Cybersecurity’s income, receipts and profits), such as sales, use or excise taxes, and similar charges of any kind imposed by any governmental entity for Services provided under this Agreement. All products shipped within the United States will be shipped by V3 Cybersecurity F.O.B. Shipping Point (Freight Prepaid and Added). All products shipped to a final destination outside of the United States will be shipped by V3 Cybersecurity EXW (Ex Works) IncoTerms 2010. Client is responsible and will pay for freight, shipping, handling, insurance and other transportation charges, including, but not limited to all applicable import and export fees, customs, duties and surcharges. Notwithstanding the foregoing, title to any CPE or software delivered in connection with the Services shall remain with V3 Cybersecurity. Title and risk of loss to any purchased hardware shall pass to Client upon shipment; title to software shall remain with V3 Cybersecurity.
6. PROPRIETARY RIGHTS
6.1. V3 Cybersecurity Technology and IP. All technology used by V3 Cybersecurity in connection with performing the Services, including software, portals, data processing systems (each of the foregoing, in object code and source code form), report templates, and CPE (collectively, “V3 Cybersecurity Technology”), and any V3 Cybersecurity intellectual property (“V3 Cybersecurity IP”), and any derivative works of or modifications to the V3 Cybersecurity Technology or V3 Cybersecurity IP, is the sole and exclusive property of, and is valuable, confidential and proprietary to, V3 Cybersecurity or its licensors. Except as otherwise expressly provided herein, Client shall not acquire any rights in any V3 Cybersecurity Technology or V3 Cybersecurity IP as a result of receiving the Services. The sale of any equipment conveys no right or license to manufacture, duplicate or otherwise copy or reproduce any of the equipment. Client shall not remove any proprietary notices on equipment delivered hereunder and may not co-brand or otherwise add any branding or marking to such equipment or its packaging.
6.2. Data. In the course of providing the Services, V3 Cybersecurity may collect information relating to activities on Client’s network (the “Data”). V3 Cybersecurity shall have no ownership or use rights in such Data except to use the aggregations of the Data, provided such data does not contain information identifying Client or disclose any of Client’s Confidential Information.
6.3. Publicity, Trademarks and Logo. Without prior written approval signed by an authorized representative of the other party, neither V3 Cybersecurity nor Client shall directly or indirectly (i) use the other’s name or any of the other’s trademarks, service marks or logos, (ii) make any public announcement related to this Agreement or the Services or (iii) disclose to any third party the fact that V3 Cybersecurity is Client’s service provider.
7. CONFIDENTIALITY
7.1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information or the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Orders hereunder), the Customer Data, the Products, the V3 Materials, V3’s security information and reports, and each party’s respective business and marketing plans, technology and technical information, product designs, and business processes. The obligations in this Section shall not apply to any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party and without an obligation of confidentiality; (iii) was independently developed by the Receiving Party without the use of or reference to the Confidential Information of the Disclosing Party; or (iv) is lawfully received from a third party without breach of any obligation owed to the Disclosing Party and without an obligation of confidentiality.
7.2. Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission. Either party may disclose Confidential Information to its personnel and its auditors who are subject to the same confidentiality obligations and may disclose Confidential Information to its attorneys and accountants who are either subject to professional obligations of confidentiality or have agreed to be bound by confidentiality obligations at least as protective as those set out herein.
7.3. Protection. Receiving Party will use at least the same level of care to prevent unauthorized use of the Confidential Information as it uses for its own confidential and proprietary information of like kind, but in no event less than a reasonable standard of care.
7.4. Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure, to the extent legally permitted, and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
7.5. Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of the confidentiality protections hereunder, or if the Receiving Party is compelled to disclose (or is likely to become compelled to disclose) any Confidential Information of the Disclosing Party pursuant to Section 6.4, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts or seek a protective order regarding such acts.
8. TERMINATION
8.1. Agreement Term. This Agreement shall continue in effect for the Subscription Term.
8.2. Order Term. The term of Customer’s subscription to the Products will begin on the start date set forth in an Order and will continue for the period of time stated in the Order (“Initial Subscription Term”). Prior to the end of the Initial Subscription Term, the parties will work together to agree on the length and pricing for a renewal term (“Renewal Subscription Term”); otherwise, Customer’s subscription will terminate at the end of the Initial Subscription Term (or the then-applicable Renewal Subscription Term).
8.3. Termination for Material Breach. Either party may terminate this Agreement and any Order (i) if the other party breaches any terms and conditions of this Agreement and does not cure such breach within thirty (30) days of receiving notice of such breach; or (ii) if the other party becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
8.4. Effect of Termination. The following provisions shall survive the termination of this Agreement and all Orders: Section 5 (Compensation), Section 6 (Proprietary Rights), Section 7 (Confidentiality) Section 9.6 (Disclaimer of Warranties), Section 6 (Confidential Information), Section 7.4 (Effect of Termination), Section 8 (Indemnity), Section 10 (Limitation of Liability), Section 12 (Personal Data and Privacy Policy), Section 13 (Export Control and Commercial Item Software), and Section 15 (General Provisions).
9. WARRANTIES
9.1. Mutual Warranty. Each party represents and warrants that it has the legal power and authority to enter into this Agreement.
9.2. SaaS and Software Warranty. V3 warrants that the SaaS and/or Software will be free of defects under normal use and substantially conforms to the Documentation. If Customer believes the warranty stated in this Section has been breached, Customer must notify V3 of the breach no later than thirty (30) days following the date the warranty was allegedly breached, and V3 will promptly correct the non-conformity at its own expense if it determines a breach of this warranty occurred
9.3. DS Warranty. V3 warrants that the DS will be performed in a professional manner in accordance with industry standards for like services. If Customer believes the warranty stated in this Section has been breached, Customer must notify V3 of the breach no later than thirty (30) days following the date the DS was provided, and V3 will promptly correct or re-perform the DS at its own expense if it determines a breach of this warranty occurred.
9.4. Services Warranty. V3 warrants that the Services, including Support Services, will be performed in a professional manner in accordance with industry standards for like services, but does not guarantee that every question or problem will be resolved. V3’s obligation to provide Support Services, does not include services requested as a result of causes or errors which are not attributable to V3 or its authorized agents. If, upon investigating the cause of the incident, V3 determines that there is a defect in the Product, V3 will provide a remedy in the form of a workaround, or another version of the Product that includes a bug fix for the defect. Customer agrees to provide reasonable support information necessary to understand and resolve the incident, which may include log files, configuration files and/or error messages.
9.5. Sole Remedies. Except for any Service Level Credits described in the Product Sheets, the remedies stated in Sections 5.2 through 5.5 above are the sole remedies, and V3’s sole obligation, with respect to Products that fail to comply with the foregoing warranties.
9.6. Disclaimer of Warranties. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, ALL PRODUCTS ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTY WHATSOEVER. V3 EXPRESSLY DISCLAIMS, TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, ALL WARRANTIES, EXPRESS, IMPLIED AND STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NONINFRINGEMENT, OR ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE. V3 ALSO MAKES NO WARRANTY REGARDING NONINTERRUPTION OF USE OR FREEDOM FROM BUGS AND MAKES NO WARRANTY THAT PRODUCTS WILL BE ERROR-FREE.
10. LIMITATIONS OF LIABILITY & DISCLAIMER OF WARRANTIES
10.1. Waiver of Consequential Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY DAMAGES OF ANY KIND, OR ANY LOST PROFITS OR LOST SAVINGS, HOWEVER CAUSED, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, TORT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE, WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
10.2. Limitation of Monetary Damages. EXCEPT FOR DAMAGES CAUSED BY A PARTY’S GROSS NEGLIGENCE, FRAUD, OR INTENTIONAL MISCONDUCT, EACH PARTY’S TOTAL LIABILITY ARISING OUT OF THIS AGREEMENT AND ANY ORDER SHALL BE LIMITED TO THE TOTAL FEES RECEIVED BY V3 FOR THE RELEVANT ORDER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST OCCURRENCE OF THE EVENT(S) GIVING RISE TO SUCH LIABILITY.
10.3. Applicability. THE LIMITATIONS AND EXCLUSIONS CONTAINED HEREIN WILL APPLY TO THE MAXIMUM EXTENT NOT PROHIBITED UNDER APPLICABLE LAW.
11. INDEMNITY
11.1. V3 will indemnify and hold Customer harmless, from and against any claim against Customer by reason of Customer’s use of the Products as permitted hereunder, brought by a third party alleging that the Products or V3 Materials infringe or misappropriate a third party’s valid United States patent, copyright, trademark or trade secret. V3 shall, at its expense, defend such claim and pay damages finally awarded against Customer in connection therewith, including the reasonable fees and expenses of the attorneys engaged by V3 for such defense. If the Products, or parts thereof, become, or in V3’s opinion may become, the subject of an infringement claim, V3 may, at its option: (a) procure for Customer the right to continue using the Products as set forth herein; (b) replace or modify the Products to make it non-infringing; or (c) if options (a) or (b) are not commercially and reasonably practicable as determined by V3, terminate this Agreement and the applicable Order and refund Customer, on a pro-rated basis, any pre-paid Fees for the corresponding unused portion of the Subscription Term. V3 will have no liability or obligation under this Section with respect to any claim if such claim is caused in whole or in part by (i) Customer’s use of a Product not in accordance with the Documentation; (ii) modification of a Product by anyone other than V3; or (iii) the combination, operation, or use of any Product with other hardware or software not provided by V3 where the Products would not by itself be infringing. THIS SECTION 11.1 STATES V3’S ENTIRE LIABILITY AND CUSTOMER’S SOLE REMEDY WITH RESPECT TO ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS BY THE PRODUCTS OR V3 MATERIALS, PROVIDED HOWEVER THAT SECTION 9 (LIMITATION OF LIABILITY) SHALL BE APPLICABLE TO ANY OBLIGATIONS OF V3 HEREUNDER.
11.2. Customer will indemnify and hold V3 harmless against any claim brought by a third party against V3 arising from or related to Customer’s violation of Section 4.2 of this Agreement.
11.3. The indemnification obligations in this Section shall be subject to the indemnified party: (i) promptly notifying the indemnifying party in writing upon receiving notice of any threat or claim of such action; (ii) giving the indemnifying party exclusive control and authority over the defense and/or settlement of such claim (provided any such settlement unconditionally releases the indemnified party of all liability); and (iii) providing reasonable assistance requested by the indemnifying party, at the indemnifying party’s expense.
12. PERSONAL DATA AND PRIVACY POLICY
12.1. Scope. This Section 10 applies to all personal data (as defined under applicable laws) processed by the Products on behalf of Customer or otherwise provided by Customer to V3 in connection with this Agreement (“Personal Data”). For purposes of this Agreement, V3 is a “processor” that processes certain Personal Data on behalf of Customer, who is the “controller.” Under European Union (EU) privacy legislation, the term “controller” is defined as the natural or legal person, public authority, agency or any other body which alone or jointly with others determines the purposes and means of the processing of personal data, and the term “processor” is defined as a natural or legal person, public authority, agency or any other body which processes personal data on behalf of the controller. V3 only processes Personal Data associated with the designated users of Products as assigned by the Customer.
12.2. GDPR. V3 shall comply with all data protection and privacy laws applicable to its processing of Personal Data, including the General Data Protection Regulation (Regulation (EU) 2016/679) (the “GDPR”).
12.3. Customer Responsibilities. Customer’s instructions to V3 for the processing of Personal Data shall comply with all applicable data protection laws. Customer will have sole responsibility for the accuracy, quality, and legality of Personal Data and the means by which Customer acquired Personal Data. Customer shall ensure that Customer is entitled to transfer the Personal Data to V3 so that V3 may lawfully use, process and transfer the Personal Data in accordance with this Agreement on Customer’s behalf.
13. EXPORT COMPLIANCE AND COMMERCIAL ITEM SOFTWARE
13.1. Export Compliance. The Products and other software or components of the Products which V3 may provide or make available to Customer may be subject to United States export control and economic sanctions laws and other foreign trade controls. Customer agrees to comply with applicable laws in connection with its performance hereunder, including without limitation, applicable U.S. and foreign export controls, economic sanctions, and other trade controls.
13.2. Commercial Item Software. The Products and Documentation are “commercial items”, “commercial computer software” and “commercial computer software documentation,” pursuant to DFAR section 227.7202 and FAR section 12.212, as applicable. All Products and V3 Materials are and were developed solely at private expense. Any use, modification, reproduction, release, performance, display or disclosure of the Products, V3 Materials and Documentation by the United States Government shall be governed solely by this Agreement and shall be prohibited except to the extent expressly permitted by this Agreement.
14. TERMS APPLICABLE TO CERTAIN SERVICES
14.1. In the event Client purchases portal-based services the following shall apply:
14.1.1. Client’s use of V3 Cybersecurity portals, reports, and scanning solution is subject to the following restrictions: (i) Portals, services, and reports may only be used for the stated purposes in this Agreement for Client’s internal business purposes in accordance with all applicable laws (including any export control laws); and, (ii) Client shall limit access to portals to only those employees and/or contractors who have an obligation of confidentiality with Client and only to those who have a requirement for such access on a “need to know” basis and Client shall be solely responsible for disabling portals accounts for those employees and/or contractors who no longer require access. Client shall not (i) decompile, reverse engineer, disassemble, or otherwise derive the source code from any component of the portals including the software embedded therein; (ii) modify, enhance, translate, alter, tamper with, upgrade or create derivatives works of the portals, software or documentation; or (iii) strip out or alter any trademark, service mark, copyright, patent, trade secret, ownership or any other proprietary or Intellectual Property notices, legends, warnings, markings or indications on or within any component of the portals, software or documentation, or attempt (i), (ii), and/or (iii) above.
15. GENERAL
15.1. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
15.2. Notices. All notices required to be sent hereunder shall be in writing, addressed to receiving party’s current business contact, if known, with a cc: to the Legal Department of the receiving party, and sent to the party’s address as listed in the Order, or as updated by either party by written notice. Notices shall be effective upon receipt and shall be deemed to be received as follows: (i) if personally delivered by courier, when delivered; or (ii) if mailed by first class mail, or the local equivalent, on the fifth business day after posting with the proper address.
15.3. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
15.4. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in full force and effect.
15.5. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld), except that either party may assign this Agreement in its entirety, without the consent of the other party, to (i) an Affiliate; or (ii) in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
15.6. Governing Law. This Agreement and any disputes arising out of or related hereto shall be governed by and construed in accordance with the laws of the State of Florida, without giving effect to its conflicts of laws rules, the United Nations Convention on the International Sale of Goods, or the Uniform Computer Information Transactions Act.
15.7. Force Majeure. Neither party shall be liable for delay or non-performance of its obligations hereunder (or part thereof) if the cause of delay or non-performance is due to a Force Majeure Event. The party affected shall be relieved from its obligations (or part thereof) as long as the Force Majeure Event lasts and hinders the performance of said obligations (or part thereof). The party affected shall promptly notify the other party and make reasonable efforts to mitigate the effects of the Force Majeure Event.
15.8. Entire Agreement. This Agreement, including the Product Sheets, constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The parties are not relying and have not relied on any representations or warranties whatsoever regarding the subject matter of this Agreement, express or implied, except for the representations and warranties set forth in this Agreement. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. No terms or conditions set forth on any purchase order, preprinted form or other document shall add to or vary the terms and conditions of this Agreement, and all such terms or conditions shall be null and void.