TERMS OF USE

1. DEFINITIONS.

 

1.1. “Mercury” means the set of Secured Communications’ underlying Software as a Service known as “Mercury, powered by Secured Communications”. Mercury is an enterprise-grade software solution that encrypts communications on a private cloud platform. The various modules of Mercury may be accessed and used as part of the Service, as expressly specified in an Order.

 

1.2. “Business Hours” means Monday through Friday from 8am to 6pm Eastern Standard Time, excluding public bank, state, and federal holidays.

 

1.3. “Software” means Mercury as may be made available by Secured Communications as part of the Services hereunder, including any subsequent improvements, updates, enhancements, error corrections, new versions, releases or other software modifications made generally available to like subscribers by Secured Communications.

 

1.4. “Change of Control” means a transaction or series of related transactions to s-ell, convey or otherwise dispose of all or substantially all of the property or business or merge into or consolidate with any other corporation (other than a wholly-owned subsidiary corporation) unless the stockholders of the corporation who own more than 50% of the voting power of the corporation immediately prior to such transaction will own more than 50% of the voting power of the surviving corporation following such transaction.

 

1.5. “Documentation” means Secured Communications’s published user documentation, including support guides, release notes, and any other published information regarding the Services made generally commercially available by Secured Communications to subscribers of like services.

 

1.6. “Increases” means the increases to the Subscription Fee that are issued and implemented by Secured Communications from time to time with reasonable advance written notice to Subscriber.

 

1.7. “Initial Term” shall have the meaning set forth in Section entitled “Term and Termination.”

 

1.8. “Malicious Code” means any unauthorized code, virus, Trojan horse, worm or other software routine or hardware components designed to permit unauthorized access, disable, erase, or otherwise harm data, software or hardware.

 

1.9. “Order” shall mean one or more mutually agreed written orders substantially in the form of Schedule A attached hereto, and duly executed by the Parties and attached hereto as successively numbered (e.g., Schedule A-1, Schedule A-2, Schedule A-3).

 

1.10. “Renewal Term” shall have the meaning set forth in the Section entitled “Term and Termination.

 

1.11. “Services” means those internet-based services provided to Subscriber by or on behalf of Secured Communications under this Agreement as further described in the applicable Order, including the Mercury Software.

 

1.12. “Services Infrastructure” has the meaning set forth in the Section entitled “Proprietary Rights.”

 

1.13. “Service Upgrades” means new versions of the Services made generally available to Secured Communications’ subscribers, including running database scripts, as may be scheduled by Secured Communications in its sole discretion.

 

1.14. “Service Upgrade Frequency” means that Secured Communications shall provide a Service Upgrade in a timely manner after a general release, to like subscribers, of a new version of the Services.

 

1.15. “Subscriber Generated Error” means an error, malfunction, or failure on hardware, software, or other technology which is not part of the Services Infrastructure which is causing Subscriber to have problems accessing or using the Services, in whole or in part.

 

1.16. “Subscriber Data” means the electronic data and metadata delivered, provided, or otherwise made available to Secured Communications by or on behalf of Subscriber in connection with the Services. Subscriber Data does not include Subscriber’s content.

 

1.17. “Subscription Term” means, with respect to any Order, the Initial Term and any Renewal Term.

 

1.18. “Users” mean Subscriber’s employees, representatives, consultants, contractors or agents who are authorized to use the Services and have been supplied user identifications and passwords by Subscriber (or by Secured Communications at Subscriber’s request).

 

1.19. Privacy Policy https://securedcommunications.com/privacy-policy.html

 

2. SERVICES.

 

2.1. Right to Access and Use. Provided that Subscriber complies with the terms and conditions of this Agreement, including but not limited to timely payment of Subscription Fees, Secured Communications hereby grants Subscriber a non-exclusive, non-transferable right, during the applicable Subscription Term, (i) to access and use the Services described in one or more Orders, solely for Subscriber’s internal business purposes and in compliance with and subject to various governmental national and international regulations; and (ii) to use and make a reasonable number of copies of the Documentation as reasonably necessary to utilize the Services in accordance with the terms herein.

 

2.2. User Accounts. Subscriber may have only as many User accounts in use at any one time as the number of Users for each User type specified in the applicable Order. Subscriber acknowledges that Secured Communications may include in its Services functionality to track the number of active Users and to disallow use by more than the authorized User accounts. User accounts cannot be shared or used by more than one User. Subscriber is responsible for all activities that occur under Subscriber’s User accounts. Subscriber shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and shall promptly notify Secured

Communications of any known unauthorized use. Subscriber will ensure that (a) all Users given access to the Services have the right to access the information and Subscriber Data made accessible to them by Subscriber through the Services and (b) any User granting Secured Communications access to any Subscriber Data has the right and authority to grant such access.

 

2.3. Subscriber Data. Subscriber shall deliver to, or grant access or permission to access via a third party, and hereby grants such permissions to, Secured Communications, the Subscriber Data that Subscriber wishes to have analyzed or otherwise use in connection with the Services. Subscriber shall and hereby grants Secured Communications a non-exclusive, non-transferable right to access, use, copy, modify, and display for the benefit of Subscriber the Subscriber Data as may be necessary to provide the Services in accordance with the terms of this Agreement and to deliver to Subscriber the results derived from processing the Subscriber Data. Subscriber shall have sole responsibility for the accuracy, completeness, quality, reliability, and currency of all Subscriber Data. Subject to the terms and conditions of this Agreement, including Section 8.2, Secured Communications shall use commercially reasonable efforts to maintain industry standard administrative, physical and technical safeguards for the protection, security, confidentiality and integrity of Subscriber Data in the custody and control of Secured Communications during the applicable Subscription Term. Secured Communications shall utilize the Subscriber Data solely for purposes of performing the Services and shall not sell, transfer, lease, or otherwise commercially exploit the Subscriber Data. Subscriber Data will be deemed Subscriber Confidential Information for purposes of Section 7. Subscriber represents and warrants that Subscriber and/or its Users have the appropriate rights to provide Subscriber Data to Secured Communications under this Agreement.

 

2.4. Performance of Services. Subject to the terms and conditions of this Agreement, including Subscriber’s timely payment of Subscription Fees, Secured Communications shall use commercially reasonable efforts, during the applicable Subscription Term, to make the Services available to Subscriber and perform substantially in accordance with the service levels set forth in Schedule B to this Agreement.

 

2.5. Professional Services. At Subscriber’s request and upon mutual agreement of the Parties, Secured Communications may provide to Subscriber certain implementation services, training services, or other professional services pursuant to a statement of work expressed in an Order.

 

2.6. Service Upgrades. During the Term, Secured Communications may make available to Subscriber at no charge Service Upgrades from time to time in its sole discretion. Secured Communications will use reasonable efforts to notify Subscriber of such Service Upgrade.

 

3. THIRD PARTY PRODUCTS AND SERVICES.

 

In order to access and use the Services or certain features thereof, Subscriber may require access to, or may otherwise wish to access, certain products, services, data or other technology not provided by Secured Communications under this Agreement (collectively, the “Third Party Products”). Subscriber hereby acknowledges and agrees that Subscriber is responsible for acquiring, installing, securing, maintaining, and supporting, as the case may be, any such Third Party Products (including any licenses to or permissions for the access or use of any such Third Party Products), at Subscriber’s sole cost, expense and liability, and Secured Communications shall have no liability with respect to any Third Party Service Provider. Without limiting the foregoing, Subscriber will be solely responsible for all fees payable to third parties (including any Third Party Service Providers) for access to any third party products, services, data or other technology that Subscriber wishes to access in connection with the Services.

 

4. SERVICES RESTRICTIONS.

 

Subscriber shall not: (i) make the Services available to anyone other than Subscriber’s authorized Users pursuant to Section 2.2 (“User Accounts”) or to any persons or entities prohibited by national and/or international law; (ii) sell, resell, license, lease, rent or otherwise permit access or use of the Services to or by any third party (other than in conjunction with an approved system integration process); or (iii) attempt to access, copy, deconstruct, reverse engineer, mirror or frame the Services or their related graphics, functions, features, software, systems or networks in a manner not expressly set forth in this Agreement. Secured Communications may suspend the Service in the event Subscriber has in using the Services violated the law, is under criminal indictment, or is utilizing the Services in a manner that is reasonably viewed as negatively impacting Secured Communication’s name, reputation and/or brand.

 

5. SUBSCRIPTION FEES AND PAYMENT.

 

5.1. Unless otherwise set forth in the applicable Order, Secured Communications shall invoice in advance, and Subscriber will pay Secured Communications within thirty (30) days of the date of such invoice, the nonrefundable, non-cancelable (i) fees and expenses for the Services as specified in an Order (“Subscription Fees”), (ii) fees for any Professional Services, if applicable, and (iii) any other fees as may be set forth in an Order (collectively, the “Fees”). The Subscription Fees for each year will be based on the fees paid in the prior year, plus Increases. Subscriber shall promptly issue a purchase order to Secured Communications if required by the Subscriber’s internal processes. If Secured Communications has not received payment for any undisputed amounts from Subscriber more than sixty (60) days after the date of the invoice, to the extent legally enforceable, Secured Communications may charge and Subscriber agrees to pay interest on the overdue sum. Interest begins accruing on the invoice due date until payment of the overdue sum at 18% a year. Secured Communications may immediately suspend the Services without additional notice in the event Subscriber is more than thirty (30) days late in paying of an invoice.

 

5.2. All fees listed in an Order are exclusive of any and all taxes and tariffs imposed by applicable law in connection with the transactions under this Agreement. Subscriber shall pay any and all taxes and tariffs imposed by applicable law or tax authority based on such transactions. Subscriber shall pay all taxes directly to the applicable tax authority not otherwise invoiced by Secured Communications but required to be paid by applicable law or tax authority. If requested, Subscriber shall promptly provide Secured Communications with verification of such payment. Subscriber shall reimburse and indemnify Secured Communications for any and all costs (including but not limited to taxes) incurred by Secured Communications resulting from Subscriber’s failure to pay, late payment or miscalculation of any taxes, or failure to promptly provide Secured Communications with verification of such payment. The Parties agree to reasonably cooperate with each other in the event of an audit or inquiry by a tax authority or other governmental entity.

 

6. PROPRIETARY RIGHTS.

 

6.1. Subscriber acknowledges that in providing the Services, Secured Communications utilizes certain hardware, software, data, databases, models, frameworks, algorithms, systems, and other technology, including without limitation related database management and hardware maintenance (collectively, the “Services Infrastructure”). Subject to the limited rights granted to Subscriber to use the Services pursuant to Section 2.1 (“Right to Access and Use”), as between Secured Communications and Subscriber, Secured Communications (and Secured Communications’ licensors) retains and reserves all rights, title and interest in and to the Services and the Services Infrastructure, including any related intellectual property rights, and any and all modifications, enhancements, customizations or improvements to any of the foregoing. Nothing in this Agreement shall entitle Subscriber to a copy of or any other rights to and in or to any of the Services Infrastructure, including but not limited to any database software provisioned by Secured Communications in the course of providing the Services. Subscriber (and Subscriber’s licensors and providers of any Third Party Products) retains all rights, title and interest, including all intellectual property rights, to the Subscriber Data and Subscriber content.

 

7. CONFIDENTIALITY.

 

7.1. “Confidential Information” means all non-public business or technical information of one Party (“Disclosing Party”), including any information relating to software plans, designs, costs, prices and names, documentation, finances, marketing plans, business opportunities, personnel, research, development or know-how, which if disclosed to the other Party (“Receiving Party”): (a) in tangible form, is designated in writing as being confidential at the time of disclosure, (b) if disclosed orally or visually, is identified as confidential at the time of disclosure, and reduced to writing and provided to the Receiving Party within thirty (30) days of disclosure; or (c) would be reasonably understood to be confidential given the nature of the information or circumstances of the disclosure. “Secured Communications’ Confidential Information” includes (a) the Services (and associated hardware and software provided by Secured Communications therewith); and (ii) the terms, conditions and pricing of this Agreement. Subscriber’s Confidential Information includes the Subscriber Data and Subscriber content.

 

7.2. Confidential Information does not include information that: (a) is or becomes generally known to the public through no fault or breach of this Section 7 by the Receiving Party; (b) is rightfully known to the Receiving Party at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; (d) the Receiving Party rightfully obtains from a third party without restriction on use or disclosure; or (e) is disclosed with the prior written approval of the Disclosing Party.

 

7.3. During the Term and until the applicable information is no longer considered Confidential Information hereunder, each Party will not use the other party’s Confidential Information except as permitted herein, and will not disclose such Confidential Information to any third party except to employees and consultants with a need to know in furtherance of the performance under this Agreement (and only subject to binding use and disclosure restrictions at least as protective as those set forth herein). However, the Receiving Party may disclose the Disclosing Party’s Confidential Information: (a) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the Receiving Party gives reasonable notice to the Disclosing Party to contest

such order or requirement; (b) on a confidential basis to legal or financial advisors; and/or (c) pursuant to a required registration report or exhibits thereto to be filed with the Securities and Exchange Commission, listing agency or any state securities commission, or any other associated filings to the extent required by law or regulation. Notwithstanding the above, Secured Communications shall have the right to use or act upon any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Subscriber or any other party relating to the Services, and any residual information retained in the unaided memory of Secured Communications’ personnel.

 

8. WARRANTY AND DISCLAIMER.

 

8.1. Secured Communications represents and warrants that (a) the Services shall substantially conform to the Documentation; (b) the Services shall be provided free of any Malicious Code inserted by Secured Communications; and (c) Secured Communications has the authority and intent to be legally bound by the terms and conditions of this Agreement. The sole and exclusive remedy for Subscriber in relation to breach of warranty claims hereunder shall be for Secured Communications to repair, replace or re-perform the non-conforming ervices at no additional charge to the Subscriber and, if in the event that Secured Communications cannot make the Services conform with commercially reasonable efforts, Secured Communications or Subscriber may terminate the applicable Order, in which case Secured Communications would return the unused pro-rata share of the Subscription Fees for the remaining Subscription Term following the effective date of the date of termination hereunder.

 

8.2. Subscriber represents and warrants that (a) Subscriber has the necessary rights and permissions or approvals to use and to permit the use of the Subscriber Data; (b) all Users have the right to access the information and data made accessible to them by Subscriber through the Services; (c) Subscriber does not collect, and shall not transfer to or permit access to Secured Communications, to any personal data, personal information or personally identifiable information, as such terms are defined under applicable law, including any personal data of Subscriber’s customers; (d) Subscriber is in compliance with, and shall not violate any applicable law, rule or regulation, including without limitation any law, rule or regulation pertaining to privacy and data protection, or Subscriber’s internal privacy policies; (e) Subscriber shall not upload or transmit any Malicious Code into any of the Services Infrastructure during the provision of the Services; and (f) Subscriber has the authority and intent to be legally bound by the terms and conditions of this Agreement. In the event of a breach, or reasonably anticipated breach, of the foregoing warranties, in addition to any other remedies available at law or in equity, Secured Communications will have the right, in its sole discretion, to immediately suspend any related Services if deemed reasonably necessary by Secured Communications to prevent any liability accruing to it.

 

8.3. EXCEPT AS EXPRESSLY SET FORTH ABOVE IN THIS SECTION 8, ALL EXPRESS OR IMPLIED CONDITIONS, TERMS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE ARE EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. EXCEPT AS EXPRESSLY STATED ABOVE IN THIS SECTION 8, THE SERVICES AND SERVICES INFRASTRUCTURE ARE PROVIDED “AS IS” AND SECURED COMMUNICATIONS MAKES NO WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES OR SERVICES INFRASTRUCTURE. SECURED COMMUNICATIONS SPECIFICALLY DISCLAIMS ANY WARRANTY THAT THE SERVICES OR SERVICES INFRASTRUCTURE WILL BE UNINTERRUPTED OR ERROR-FREE.

 

9. INDEMNIFICATION.

 

9.1. Secured Communications will defend, or at its option settle, any third party claim, suit, or proceeding (“Claim”) brought against Subscriber alleging that the use of the Services by Subscriber in accordance with this Agreement infringes any U.S. patent or copyright. Secured Communications shall have sole control over the defense or settlement negotiations, and Secured Communications will pay any final costs, damages and reasonable attorneys’ fees attributable to such Claim, provided that Subscriber: (a) promptly notifies Secured Communications in writing of the claim; and (b) provides Secured Communications with all assistance, information and authority required for the defense and settlement of the Claim.

 

9.2. If Secured Communications’ provision of the Services is enjoined or threatened to be enjoined due to a third party infringement claim, Secured Communications shall, at its option: (a) procure for Subscriber the right to continue to provide the Services to Subscriber; (b) modify or replace the Services (or elements thereof) so that the Services are non-infringing and substantially equivalent in function to the enjoined Services; or (c) if neither of the above can be accomplished despite Secured Communications’ commercially reasonable efforts, then Secured Communications may terminate this Agreement or the applicable Order and refund to Subscriber the unused prorata share of any pre-paid Subscription Fees for the period of time from the effective date of termination hereunder and the end of the Subscription Term.

 

9.3. Secured Communications will have no liability for any infringement claim of any kind to the extent it results from: (a) the combination, operation or use of the Services with any equipment, devices, data, technology or software not supplied by Secured Communications (including any Third Party Products and any products or services supplied by a Third Party Provider) to the extent such a claim would have been avoided if these items and/or services were not used in such combination; (b) the Subscriber’s delay of validating a Service Upgrade available from Secured Communications which would have avoided infringement (as described in Section 7.a); (c) use of or modification of the Services in a manner outside the scope of this Agreement; or (d) compliance by Secured Communications with designs, plans or specifications furnished by Subscriber or on behalf of Subscriber by a third party.

 

9.4. THE ABOVE PROVISIONS STATE SECURED COMMUNICATIONS’S SOLE AND EXCLUSIVE OBLIGATIONS, AND SUBSCRIBER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.

 

9.5. Subscriber shall defend or at its option, settle, any Claims brought against Secured Communications to the extent it alleges breach of any of Subscriber’s warranties set forth in Section 8.2. Subscriber shall have sole control over the defense or settlement negotiations, and Subscriber agrees to pay, subject to the limitations set forth below, any final judgment entered against Secured Communications, as a result of such breach, in any such Claim defended by Subscriber; provided that Secured Communications provides Subscriber with (a) prompt written notice of such Claim; and (b) available information and assistance, at Subscriber’s expense, to settle and/or defend any such Claim.

 

10. LIMITATION OF LIABILITY.

 

10.1.EXCEPT FOR THE INDEMNIFICATION OBLIGATION SET FORTH IN SECTION 9, AND EXCEPT FOR VIOLATIONS OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS, EACH PARTY'S TOTAL AGGREGATE LIABILITY TO THE OTHER FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY WILL NOT EXCEED THE TOTAL SUBSCRIPTION FEES PAID BY SUBSCRIBER IN THE TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM FIRST AROSE.

 

10.2.EXCEPT FOR THE INDEMNIFICATION OBLIGATION SET FORTH IN SECTION 9, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF USE, PROFITS, DATA, OR GOOD WILL, OR PROCUREMENT OF SUBSTITUTE SERVICES) ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF ANY SERVICES OR THE , WITHOUT REGARD FOR WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM OR CAUSE OF ACTION BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, CLAIM, CAUSE OF ACTION, OR DAMAGE.

 

10.3. SECURED COMMUNICATIONS SHALL NOT BE LIABLE TO SUBSCRIBER FOR (A) SUBSCRIBER’S INABILITY TO ACCESS OR REALIZE THE FULL BENEFIT OF THE SERVICES DUE TO THE ACTIONS, OMISSIONS, OR FAILURES OF SUBSCRIBER, SUBSCRIBER’S INTERNET SERVICE PROVIDER, THIRD PARTY PROVIDERS, SUCH AS USE OF A NON-COMPATIBLE WEB BROWSER OR OTHER NONCOMPATIBLE PLATFORMS, NON-SECURED COMMUNICATIONS PROVIDED LOCAL AREA NETWORKS, LEASED LINES OR NON-SECURED COMMUNICATIONS PROVIDED EQUIPMENT; (B) FAILURE OF OR MODIFICATIONS TO SUBSCRIBER SYSTEMS WHICH ADVERSELY IMPACT THE SERVICES; OR (C) CORRUPTION, ALTERATION, THEFT, DESTRUCTION OR INADVERTENT DISCLOSURE OF DATA, TO THE EXTENT THE DATA WAS BEING TRANSMITTED BEYOND SECURED COMMUNICATIONS’S CONTROL.

 

11. TERM AND TERMINATION.

 

11.1.This Agreement shall begin on the Effective Date, and unless earlier terminated pursuant to this Section 11, shall continue for three (3) years thereafter or until the last to expire Order, whicever is later (“Term”). Unless otherwise set forth in the applicable Order or terminated earlier pursuant to this Section 11, each Order shall commence on the date specified therein (“Order Effective Date”) and shall continue for an initial term of three (3) years (“Initial Term”), and shall thereafter renew automatically for additional one (1) year successive terms (each, a “Renewal Term”) (collectively, the “Subscription Term”).

 

11.2. Unless otherwise set forth in the Order, either Party may terminate an Order for any reason by delivering written notice of non-renewal to the other Party no less than thirty (30) daysprior to the expiration date of the Initial Term of then-current Renewal Term, as applicable. Each Party shall also have the right to terminate this Agreement or the applicable Order hereunder if the other Party breaches any material term herein, including but not limited to, nonpayment, and fails to cure such breach within thirty (30) days after written notice thereof.

 

11.3. Upon any termination of this Agreement or of any individual Order: (a) Subscriber will immediately discontinue all use of the Services; (b) any and all payment obligations of Subscriber under this Agreement will become due  immediately; and (c) Subscriber will immediately return to Secured Communications or, at Secured Communications’s request, destroy all copies of the Documention or other Secured Communications Confidential Information and all copies and portions thereof, in all forms and types of media, and provide Secured Communications with an officer’s written certification, certifying to Subscriber’s compliance with the foregoing. Secured Communications shall correspondingly return, or at Subscriber’s request, destroy and certify the destruction of all Subscriber Confidential Information.

 

11.4.Termination of this Agreement by either Party will be a nonexclusive remedy for material breach and will be without prejudice to any other right or remedy of such Party at law or in equity.

 

11.5.The rights and obligations of the Parties contained in Sections 1 (“Definitions”) , 4 (“Restrictions”) 8 (“Warranty and Disclaimer”), 10 (“Limitation of Liability”), 11.3, 11.4, 11.5, and 12 (“General Terms”) will survive the termination of the Agreement or the Order, as applicable.

 

12. GENERAL TERMS.

 

12.1.If required by applicable law or governmental regulatory agency, an audit may be conducted wherein Secured Communications or the hosting provider will provide documentary evidence of compliance with the terms of this Agreement.

 

12.2. Secured Communications will have the right to perform usage verification scans from time to time, using third party tools or otherwise, to determine compliance by Subscriber with the User restrictions and other terms of this Agreement. In the event Secured Communications’s scan results indicate non-compliance by Subscriber, Subscriber and Secured Communications will work together to assist Subscriber in achieving compliance in a timely manner.

 

12.3. Neither Party will have the right to assign this Agreement, in whole or in part and any attempt to do so will be null and void, without the other Party’s prior written consent. Notwithstanding the above, as part of a Change of Control, public offering or reincorporation, Secured Communications may assign or transfer this Agreement upon written notice to Subscriber.

 

12.4.The terms and conditions of this Agreement will be governed by and construed in accordance with the laws of the State of California without application of conflict of laws principles. The parties specifically disclaim the UN Convention on Contracts for the International Sale of Goods. Any legal action or proceeding arising will be brought exclusively in the federal or state courts of the Northern District of California.

 

12.5.If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of this Agreement will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect.

 

12.6.The failure by either Party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.

 

12.7. All notices, demands or consents required or permitted shall be in writing. Notice shall be considered effective on the earlier of actual receipt or: (a) the day following transmission if sent by email followed by written confirmation; (b) one day (two days for international addresses) after posting when sent via a commercial express courier; or (c) five days after posting when sent via certified United States mail. Notice shall be sent to the address for each Party set forth on the first page of this Agreement, or at such other address as shall be given by either Party to the other in writing (“Business Address”). Notices to each Party shall be addressed to the attention of: “General Counsel” at the Party’s address listed above or as amended.

 

12.8.The Parties to this Agreement are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the Parties.

 

12.9. Subscriber agrees that Secured Communications may publicly announce and list Subscriber as a subscriber of Secured Communications’ Services with Subscriber’s advance written approval, such approval not to be unreasonably withheld or delayed.

 

12.10. In the event of a conflict, the terms of the Order and any other Schedules, shall take precedence over the terms of this Master SaaS Agreement in the foregoing order.

 

12.11. Except for the obligation to pay money, neither Party will be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any Force Majeure. “Force Majeure” means an incident beyond a Party’s reasonable control, including but not limited to, labor disputes or other industrial disturbances, strikes, lockouts, internet outages, systemic electrical, telecommunications, or utility failures, earthquake, storms, or other elements of nature, blockages, embargoes, riots, acts or orders of government, hosting or similar services outages or denial of service other than for such Party’s breach (such as Oracle web services outages or denial of service), worms, bots, malware, shortages of or inability to obtain labor, energy, raw materials or supplies, cyber-attacks, war, riot, act of God, or governmental action.

 

12.12. This Agreement, including all Orders and referenced Schedules, appendices, exhibits and attachments attached hereto, contains the complete understanding and agreement of the Parties and supersedes all prior or contemporaneous agreements or understandings, oral or written, relating to the subject matter herein, including any Subscriber purchase order or similar document. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of the Parties. The headings herein are for convenience only and are not part of this Agreement. The Parties have executed this Agreement by their authorized representatives as of the Effective Date.

 

THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK

 

SAN FRANSISCO | WASHINGTON DC | RENO TAHOE  | SYDNEY | LONDON | TORONTO

©2020 SECURED COMMUNICATIONS

  •  ALL RIGHTS RESERVED

Privacy Policy

Terms of Use

SLA

SAN FRANSISCO | WASHINGTON DC | RENO TAHOE  | SYDNEY | LONDON | TORONTO

©2020 SECURED COMMUNICATIONS

  •  ALL RIGHTS RESERVED

Privacy Policy

Terms of Use

SLA

SAN FRANSISCO | WASHINGTON DC | RENO TAHOE  | SYDNEY | LONDON | TORONTO

©2020 SECURED COMMUNICATIONS

  •  ALL RIGHTS RESERVED

TERMS OF USE

1. DEFINITIONS.

 

1.1. “Mercury” means the set of Secured Communications’ underlying Software as a Service known as “Mercury, powered by Secured Communications”. Mercury is an enterprise-grade software solution that encrypts communications on a private cloud platform. The various modules of Mercury may be accessed and used as part of the Service, as expressly specified in an Order.

 

1.2. “Business Hours” means Monday through Friday from 8am to 6pm Eastern Standard Time, excluding public bank, state, and federal holidays.

 

1.3. “Software” means Mercury as may be made available by Secured Communications as part of the Services hereunder, including any subsequent improvements, updates, enhancements, error corrections, new versions, releases or other software modifications made generally available to like subscribers by Secured Communications.

 

1.4. “Change of Control” means a transaction or series of related transactions to s-ell, convey or otherwise dispose of all or substantially all of the property or business or merge into or consolidate with any other corporation (other than a wholly-owned subsidiary corporation) unless the stockholders of the corporation who own more than 50% of the voting power of the corporation immediately prior to such transaction will own more than 50% of the voting power of the surviving corporation following such transaction.

 

1.5. “Documentation” means Secured Communications’s published user documentation, including support guides, release notes, and any other published information regarding the Services made generally commercially available by Secured Communications to subscribers of like services.

 

1.6. “Increases” means the increases to the Subscription Fee that are issued and implemented by Secured Communications from time to time with reasonable advance written notice to Subscriber.

 

1.7. “Initial Term” shall have the meaning set forth in Section entitled “Term and Termination.”

 

1.8. “Malicious Code” means any unauthorized code, virus, Trojan horse, worm or other software routine or hardware components designed to permit unauthorized access, disable, erase, or otherwise harm data, software or hardware.

 

1.9. “Order” shall mean one or more mutually agreed written orders substantially in the form of Schedule A attached hereto, and duly executed by the Parties and attached hereto as successively numbered (e.g., Schedule A-1, Schedule A-2, Schedule A-3).

 

1.10. “Renewal Term” shall have the meaning set forth in the Section entitled “Term and Termination.

 

1.11. “Services” means those internet-based services provided to Subscriber by or on behalf of Secured Communications under this Agreement as further described in the applicable Order, including the Mercury Software.

 

1.12. “Services Infrastructure” has the meaning set forth in the Section entitled “Proprietary Rights.”

 

1.13. “Service Upgrades” means new versions of the Services made generally available to Secured Communications’ subscribers, including running database scripts, as may be scheduled by Secured Communications in its sole discretion.

 

1.14. “Service Upgrade Frequency” means that Secured Communications shall provide a Service Upgrade in a timely manner after a general release, to like subscribers, of a new version of the Services.

 

1.15. “Subscriber Generated Error” means an error, malfunction, or failure on hardware, software, or other technology which is not part of the Services Infrastructure which is causing Subscriber to have problems accessing or using the Services, in whole or in part.

 

1.16. “Subscriber Data” means the electronic data and metadata delivered, provided, or otherwise made available to Secured Communications by or on behalf of Subscriber in connection with the Services. Subscriber Data does not include Subscriber’s content.

 

1.17. “Subscription Term” means, with respect to any Order, the Initial Term and any Renewal Term.

 

1.18. “Users” mean Subscriber’s employees, representatives, consultants, contractors or agents who are authorized to use the Services and have been supplied user identifications and passwords by Subscriber (or by Secured Communications at Subscriber’s request).

 

1.19. Privacy Policy https://securedcommunications.com/privacy-policy.html

 

2. SERVICES.

 

2.1. Right to Access and Use. Provided that Subscriber complies with the terms and conditions of this Agreement, including but not limited to timely payment of Subscription Fees, Secured Communications hereby grants Subscriber a non-exclusive, non-transferable right, during the applicable Subscription Term, (i) to access and use the Services described in one or more Orders, solely for Subscriber’s internal business purposes and in compliance with and subject to various governmental national and international regulations; and (ii) to use and make a reasonable number of copies of the Documentation as reasonably necessary to utilize the Services in accordance with the terms herein.

 

2.2. User Accounts. Subscriber may have only as many User accounts in use at any one time as the number of Users for each User type specified in the applicable Order. Subscriber acknowledges that Secured Communications may include in its Services functionality to track the number of active Users and to disallow use by more than the authorized User accounts. User accounts cannot be shared or used by more than one User. Subscriber is responsible for all activities that occur under Subscriber’s User accounts. Subscriber shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and shall promptly notify Secured

Communications of any known unauthorized use. Subscriber will ensure that (a) all Users given access to the Services have the right to access the information and Subscriber Data made accessible to them by Subscriber through the Services and (b) any User granting Secured Communications access to any Subscriber Data has the right and authority to grant such access.

 

2.3. Subscriber Data. Subscriber shall deliver to, or grant access or permission to access via a third party, and hereby grants such permissions to, Secured Communications, the Subscriber Data that Subscriber wishes to have analyzed or otherwise use in connection with the Services. Subscriber shall and hereby grants Secured Communications a non-exclusive, non-transferable right to access, use, copy, modify, and display for the benefit of Subscriber the Subscriber Data as may be necessary to provide the Services in accordance with the terms of this Agreement and to deliver to Subscriber the results derived from processing the Subscriber Data. Subscriber shall have sole responsibility for the accuracy, completeness, quality, reliability, and currency of all Subscriber Data. Subject to the terms and conditions of this Agreement, including Section 8.2, Secured Communications shall use commercially reasonable efforts to maintain industry standard administrative, physical and technical safeguards for the protection, security, confidentiality and integrity of Subscriber Data in the custody and control of Secured Communications during the applicable Subscription Term. Secured Communications shall utilize the Subscriber Data solely for purposes of performing the Services and shall not sell, transfer, lease, or otherwise commercially exploit the Subscriber Data. Subscriber Data will be deemed Subscriber Confidential Information for purposes of Section 7. Subscriber represents and warrants that Subscriber and/or its Users have the appropriate rights to provide Subscriber Data to Secured Communications under this Agreement.

 

2.4. Performance of Services. Subject to the terms and conditions of this Agreement, including Subscriber’s timely payment of Subscription Fees, Secured Communications shall use commercially reasonable efforts, during the applicable Subscription Term, to make the Services available to Subscriber and perform substantially in accordance with the service levels set forth in Schedule B to this Agreement.

 

2.5. Professional Services. At Subscriber’s request and upon mutual agreement of the Parties, Secured Communications may provide to Subscriber certain implementation services, training services, or other professional services pursuant to a statement of work expressed in an Order.

 

2.6. Service Upgrades. During the Term, Secured Communications may make available to Subscriber at no charge Service Upgrades from time to time in its sole discretion. Secured Communications will use reasonable efforts to notify Subscriber of such Service Upgrade.

 

3. THIRD PARTY PRODUCTS AND SERVICES.

 

In order to access and use the Services or certain features thereof, Subscriber may require access to, or may otherwise wish to access, certain products, services, data or other technology not provided by Secured Communications under this Agreement (collectively, the “Third Party Products”). Subscriber hereby acknowledges and agrees that Subscriber is responsible for acquiring, installing, securing, maintaining, and supporting, as the case may be, any such Third Party Products (including any licenses to or permissions for the access or use of any such Third Party Products), at Subscriber’s sole cost, expense and liability, and Secured Communications shall have no liability with respect to any Third Party Service Provider. Without limiting the foregoing, Subscriber will be solely responsible for all fees payable to third parties (including any Third Party Service Providers) for access to any third party products, services, data or other technology that Subscriber wishes to access in connection with the Services.

 

4. SERVICES RESTRICTIONS.

 

Subscriber shall not: (i) make the Services available to anyone other than Subscriber’s authorized Users pursuant to Section 2.2 (“User Accounts”) or to any persons or entities prohibited by national and/or international law; (ii) sell, resell, license, lease, rent or otherwise permit access or use of the Services to or by any third party (other than in conjunction with an approved system integration process); or (iii) attempt to access, copy, deconstruct, reverse engineer, mirror or frame the Services or their related graphics, functions, features, software, systems or networks in a manner not expressly set forth in this Agreement. Secured Communications may suspend the Service in the event Subscriber has in using the Services violated the law, is under criminal indictment, or is utilizing the Services in a manner that is reasonably viewed as negatively impacting Secured Communication’s name, reputation and/or brand.

 

5. SUBSCRIPTION FEES AND PAYMENT.

 

5.1. Unless otherwise set forth in the applicable Order, Secured Communications shall invoice in advance, and Subscriber will pay Secured Communications within thirty (30) days of the date of such invoice, the nonrefundable, non-cancelable (i) fees and expenses for the Services as specified in an Order (“Subscription Fees”), (ii) fees for any Professional Services, if applicable, and (iii) any other fees as may be set forth in an Order (collectively, the “Fees”). The Subscription Fees for each year will be based on the fees paid in the prior year, plus Increases. Subscriber shall promptly issue a purchase order to Secured Communications if required by the Subscriber’s internal processes. If Secured Communications has not received payment for any undisputed amounts from Subscriber more than sixty (60) days after the date of the invoice, to the extent legally enforceable, Secured Communications may charge and Subscriber agrees to pay interest on the overdue sum. Interest begins accruing on the invoice due date until payment of the overdue sum at 18% a year. Secured Communications may immediately suspend the Services without additional notice in the event Subscriber is more than thirty (30) days late in paying of an invoice.

 

5.2. All fees listed in an Order are exclusive of any and all taxes and tariffs imposed by applicable law in connection with the transactions under this Agreement. Subscriber shall pay any and all taxes and tariffs imposed by applicable law or tax authority based on such transactions. Subscriber shall pay all taxes directly to the applicable tax authority not otherwise invoiced by Secured Communications but required to be paid by applicable law or tax authority. If requested, Subscriber shall promptly provide Secured Communications with verification of such payment. Subscriber shall reimburse and indemnify Secured Communications for any and all costs (including but not limited to taxes) incurred by Secured Communications resulting from Subscriber’s failure to pay, late payment or miscalculation of any taxes, or failure to promptly provide Secured Communications with verification of such payment. The Parties agree to reasonably cooperate with each other in the event of an audit or inquiry by a tax authority or other governmental entity.

 

6. PROPRIETARY RIGHTS.

 

6.1. Subscriber acknowledges that in providing the Services, Secured Communications utilizes certain hardware, software, data, databases, models, frameworks, algorithms, systems, and other technology, including without limitation related database management and hardware maintenance (collectively, the “Services Infrastructure”). Subject to the limited rights granted to Subscriber to use the Services pursuant to Section 2.1 (“Right to Access and Use”), as between Secured Communications and Subscriber, Secured Communications (and Secured Communications’ licensors) retains and reserves all rights, title and interest in and to the Services and the Services Infrastructure, including any related intellectual property rights, and any and all modifications, enhancements, customizations or improvements to any of the foregoing. Nothing in this Agreement shall entitle Subscriber to a copy of or any other rights to and in or to any of the Services Infrastructure, including but not limited to any database software provisioned by Secured Communications in the course of providing the Services. Subscriber (and Subscriber’s licensors and providers of any Third Party Products) retains all rights, title and interest, including all intellectual property rights, to the Subscriber Data and Subscriber content.

 

7. CONFIDENTIALITY.

 

7.1. “Confidential Information” means all non-public business or technical information of one Party (“Disclosing Party”), including any information relating to software plans, designs, costs, prices and names, documentation, finances, marketing plans, business opportunities, personnel, research, development or know-how, which if disclosed to the other Party (“Receiving Party”): (a) in tangible form, is designated in writing as being confidential at the time of disclosure, (b) if disclosed orally or visually, is identified as confidential at the time of disclosure, and reduced to writing and provided to the Receiving Party within thirty (30) days of disclosure; or (c) would be reasonably understood to be confidential given the nature of the information or circumstances of the disclosure. “Secured Communications’ Confidential Information” includes (a) the Services (and associated hardware and software provided by Secured Communications therewith); and (ii) the terms, conditions and pricing of this Agreement. Subscriber’s Confidential Information includes the Subscriber Data and Subscriber content.

 

7.2. Confidential Information does not include information that: (a) is or becomes generally known to the public through no fault or breach of this Section 7 by the Receiving Party; (b) is rightfully known to the Receiving Party at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; (d) the Receiving Party rightfully obtains from a third party without restriction on use or disclosure; or (e) is disclosed with the prior written approval of the Disclosing Party.

 

7.3. During the Term and until the applicable information is no longer considered Confidential Information hereunder, each Party will not use the other party’s Confidential Information except as permitted herein, and will not disclose such Confidential Information to any third party except to employees and consultants with a need to know in furtherance of the performance under this Agreement (and only subject to binding use and disclosure restrictions at least as protective as those set forth herein). However, the Receiving Party may disclose the Disclosing Party’s Confidential Information: (a) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the Receiving Party gives reasonable notice to the Disclosing Party to contest

such order or requirement; (b) on a confidential basis to legal or financial advisors; and/or (c) pursuant to a required registration report or exhibits thereto to be filed with the Securities and Exchange Commission, listing agency or any state securities commission, or any other associated filings to the extent required by law or regulation. Notwithstanding the above, Secured Communications shall have the right to use or act upon any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Subscriber or any other party relating to the Services, and any residual information retained in the unaided memory of Secured Communications’ personnel.

 

8. WARRANTY AND DISCLAIMER.

 

8.1. Secured Communications represents and warrants that (a) the Services shall substantially conform to the Documentation; (b) the Services shall be provided free of any Malicious Code inserted by Secured Communications; and (c) Secured Communications has the authority and intent to be legally bound by the terms and conditions of this Agreement. The sole and exclusive remedy for Subscriber in relation to breach of warranty claims hereunder shall be for Secured Communications to repair, replace or re-perform the non-conforming ervices at no additional charge to the Subscriber and, if in the event that Secured Communications cannot make the Services conform with commercially reasonable efforts, Secured Communications or Subscriber may terminate the applicable Order, in which case Secured Communications would return the unused pro-rata share of the Subscription Fees for the remaining Subscription Term following the effective date of the date of termination hereunder.

 

8.2. Subscriber represents and warrants that (a) Subscriber has the necessary rights and permissions or approvals to use and to permit the use of the Subscriber Data; (b) all Users have the right to access the information and data made accessible to them by Subscriber through the Services; (c) Subscriber does not collect, and shall not transfer to or permit access to Secured Communications, to any personal data, personal information or personally identifiable information, as such terms are defined under applicable law, including any personal data of Subscriber’s customers; (d) Subscriber is in compliance with, and shall not violate any applicable law, rule or regulation, including without limitation any law, rule or regulation pertaining to privacy and data protection, or Subscriber’s internal privacy policies; (e) Subscriber shall not upload or transmit any Malicious Code into any of the Services Infrastructure during the provision of the Services; and (f) Subscriber has the authority and intent to be legally bound by the terms and conditions of this Agreement. In the event of a breach, or reasonably anticipated breach, of the foregoing warranties, in addition to any other remedies available at law or in equity, Secured Communications will have the right, in its sole discretion, to immediately suspend any related Services if deemed reasonably necessary by Secured Communications to prevent any liability accruing to it.

 

8.3. EXCEPT AS EXPRESSLY SET FORTH ABOVE IN THIS SECTION 8, ALL EXPRESS OR IMPLIED CONDITIONS, TERMS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE ARE EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. EXCEPT AS EXPRESSLY STATED ABOVE IN THIS SECTION 8, THE SERVICES AND SERVICES INFRASTRUCTURE ARE PROVIDED “AS IS” AND SECURED COMMUNICATIONS MAKES NO WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES OR SERVICES INFRASTRUCTURE. SECURED COMMUNICATIONS SPECIFICALLY DISCLAIMS ANY WARRANTY THAT THE SERVICES OR SERVICES INFRASTRUCTURE WILL BE UNINTERRUPTED OR ERROR-FREE.

 

9. INDEMNIFICATION.

 

9.1. Secured Communications will defend, or at its option settle, any third party claim, suit, or proceeding (“Claim”) brought against Subscriber alleging that the use of the Services by Subscriber in accordance with this Agreement infringes any U.S. patent or copyright. Secured Communications shall have sole control over the defense or settlement negotiations, and Secured Communications will pay any final costs, damages and reasonable attorneys’ fees attributable to such Claim, provided that Subscriber: (a) promptly notifies Secured Communications in writing of the claim; and (b) provides Secured Communications with all assistance, information and authority required for the defense and settlement of the Claim.

 

9.2. If Secured Communications’ provision of the Services is enjoined or threatened to be enjoined due to a third party infringement claim, Secured Communications shall, at its option: (a) procure for Subscriber the right to continue to provide the Services to Subscriber; (b) modify or replace the Services (or elements thereof) so that the Services are non-infringing and substantially equivalent in function to the enjoined Services; or (c) if neither of the above can be accomplished despite Secured Communications’ commercially reasonable efforts, then Secured Communications may terminate this Agreement or the applicable Order and refund to Subscriber the unused prorata share of any pre-paid Subscription Fees for the period of time from the effective date of termination hereunder and the end of the Subscription Term.

 

9.3. Secured Communications will have no liability for any infringement claim of any kind to the extent it results from: (a) the combination, operation or use of the Services with any equipment, devices, data, technology or software not supplied by Secured Communications (including any Third Party Products and any products or services supplied by a Third Party Provider) to the extent such a claim would have been avoided if these items and/or services were not used in such combination; (b) the Subscriber’s delay of validating a Service Upgrade available from Secured Communications which would have avoided infringement (as described in Section 7.a); (c) use of or modification of the Services in a manner outside the scope of this Agreement; or (d) compliance by Secured Communications with designs, plans or specifications furnished by Subscriber or on behalf of Subscriber by a third party.

 

9.4. THE ABOVE PROVISIONS STATE SECURED COMMUNICATIONS’S SOLE AND EXCLUSIVE OBLIGATIONS, AND SUBSCRIBER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.

 

9.5. Subscriber shall defend or at its option, settle, any Claims brought against Secured Communications to the extent it alleges breach of any of Subscriber’s warranties set forth in Section 8.2. Subscriber shall have sole control over the defense or settlement negotiations, and Subscriber agrees to pay, subject to the limitations set forth below, any final judgment entered against Secured Communications, as a result of such breach, in any such Claim defended by Subscriber; provided that Secured Communications provides Subscriber with (a) prompt written notice of such Claim; and (b) available information and assistance, at Subscriber’s expense, to settle and/or defend any such Claim.

 

10. LIMITATION OF LIABILITY.

 

10.1.EXCEPT FOR THE INDEMNIFICATION OBLIGATION SET FORTH IN SECTION 9, AND EXCEPT FOR VIOLATIONS OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS, EACH PARTY'S TOTAL AGGREGATE LIABILITY TO THE OTHER FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY WILL NOT EXCEED THE TOTAL SUBSCRIPTION FEES PAID BY SUBSCRIBER IN THE TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM FIRST AROSE.

 

10.2.EXCEPT FOR THE INDEMNIFICATION OBLIGATION SET FORTH IN SECTION 9, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF USE, PROFITS, DATA, OR GOOD WILL, OR PROCUREMENT OF SUBSTITUTE SERVICES) ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF ANY SERVICES OR THE , WITHOUT REGARD FOR WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM OR CAUSE OF ACTION BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, CLAIM, CAUSE OF ACTION, OR DAMAGE.

 

10.3. SECURED COMMUNICATIONS SHALL NOT BE LIABLE TO SUBSCRIBER FOR (A) SUBSCRIBER’S INABILITY TO ACCESS OR REALIZE THE FULL BENEFIT OF THE SERVICES DUE TO THE ACTIONS, OMISSIONS, OR FAILURES OF SUBSCRIBER, SUBSCRIBER’S INTERNET SERVICE PROVIDER, THIRD PARTY PROVIDERS, SUCH AS USE OF A NON-COMPATIBLE WEB BROWSER OR OTHER NONCOMPATIBLE PLATFORMS, NON-SECURED COMMUNICATIONS PROVIDED LOCAL AREA NETWORKS, LEASED LINES OR NON-SECURED COMMUNICATIONS PROVIDED EQUIPMENT; (B) FAILURE OF OR MODIFICATIONS TO SUBSCRIBER SYSTEMS WHICH ADVERSELY IMPACT THE SERVICES; OR (C) CORRUPTION, ALTERATION, THEFT, DESTRUCTION OR INADVERTENT DISCLOSURE OF DATA, TO THE EXTENT THE DATA WAS BEING TRANSMITTED BEYOND SECURED COMMUNICATIONS’S CONTROL.

 

11. TERM AND TERMINATION.

 

11.1.This Agreement shall begin on the Effective Date, and unless earlier terminated pursuant to this Section 11, shall continue for three (3) years thereafter or until the last to expire Order, whicever is later (“Term”). Unless otherwise set forth in the applicable Order or terminated earlier pursuant to this Section 11, each Order shall commence on the date specified therein (“Order Effective Date”) and shall continue for an initial term of three (3) years (“Initial Term”), and shall thereafter renew automatically for additional one (1) year successive terms (each, a “Renewal Term”) (collectively, the “Subscription Term”).

 

11.2. Unless otherwise set forth in the Order, either Party may terminate an Order for any reason by delivering written notice of non-renewal to the other Party no less than thirty (30) daysprior to the expiration date of the Initial Term of then-current Renewal Term, as applicable. Each Party shall also have the right to terminate this Agreement or the applicable Order hereunder if the other Party breaches any material term herein, including but not limited to, nonpayment, and fails to cure such breach within thirty (30) days after written notice thereof.

 

11.3. Upon any termination of this Agreement or of any individual Order: (a) Subscriber will immediately discontinue all use of the Services; (b) any and all payment obligations of Subscriber under this Agreement will become due  immediately; and (c) Subscriber will immediately return to Secured Communications or, at Secured Communications’s request, destroy all copies of the Documention or other Secured Communications Confidential Information and all copies and portions thereof, in all forms and types of media, and provide Secured Communications with an officer’s written certification, certifying to Subscriber’s compliance with the foregoing. Secured Communications shall correspondingly return, or at Subscriber’s request, destroy and certify the destruction of all Subscriber Confidential Information.

 

11.4.Termination of this Agreement by either Party will be a nonexclusive remedy for material breach and will be without prejudice to any other right or remedy of such Party at law or in equity.

 

11.5.The rights and obligations of the Parties contained in Sections 1 (“Definitions”) , 4 (“Restrictions”) 8 (“Warranty and Disclaimer”), 10 (“Limitation of Liability”), 11.3, 11.4, 11.5, and 12 (“General Terms”) will survive the termination of the Agreement or the Order, as applicable.

 

12. GENERAL TERMS.

 

12.1.If required by applicable law or governmental regulatory agency, an audit may be conducted wherein Secured Communications or the hosting provider will provide documentary evidence of compliance with the terms of this Agreement.

 

12.2. Secured Communications will have the right to perform usage verification scans from time to time, using third party tools or otherwise, to determine compliance by Subscriber with the User restrictions and other terms of this Agreement. In the event Secured Communications’s scan results indicate non-compliance by Subscriber, Subscriber and Secured Communications will work together to assist Subscriber in achieving compliance in a timely manner.

 

12.3. Neither Party will have the right to assign this Agreement, in whole or in part and any attempt to do so will be null and void, without the other Party’s prior written consent. Notwithstanding the above, as part of a Change of Control, public offering or reincorporation, Secured Communications may assign or transfer this Agreement upon written notice to Subscriber.

 

12.4.The terms and conditions of this Agreement will be governed by and construed in accordance with the laws of the State of California without application of conflict of laws principles. The parties specifically disclaim the UN Convention on Contracts for the International Sale of Goods. Any legal action or proceeding arising will be brought exclusively in the federal or state courts of the Northern District of California.

 

12.5.If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of this Agreement will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect.

 

12.6.The failure by either Party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.

 

12.7. All notices, demands or consents required or permitted shall be in writing. Notice shall be considered effective on the earlier of actual receipt or: (a) the day following transmission if sent by email followed by written confirmation; (b) one day (two days for international addresses) after posting when sent via a commercial express courier; or (c) five days after posting when sent via certified United States mail. Notice shall be sent to the address for each Party set forth on the first page of this Agreement, or at such other address as shall be given by either Party to the other in writing (“Business Address”). Notices to each Party shall be addressed to the attention of: “General Counsel” at the Party’s address listed above or as amended.

 

12.8.The Parties to this Agreement are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the Parties.

 

12.9. Subscriber agrees that Secured Communications may publicly announce and list Subscriber as a subscriber of Secured Communications’ Services with Subscriber’s advance written approval, such approval not to be unreasonably withheld or delayed.

 

12.10. In the event of a conflict, the terms of the Order and any other Schedules, shall take precedence over the terms of this Master SaaS Agreement in the foregoing order.

 

12.11. Except for the obligation to pay money, neither Party will be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any Force Majeure. “Force Majeure” means an incident beyond a Party’s reasonable control, including but not limited to, labor disputes or other industrial disturbances, strikes, lockouts, internet outages, systemic electrical, telecommunications, or utility failures, earthquake, storms, or other elements of nature, blockages, embargoes, riots, acts or orders of government, hosting or similar services outages or denial of service other than for such Party’s breach (such as Oracle web services outages or denial of service), worms, bots, malware, shortages of or inability to obtain labor, energy, raw materials or supplies, cyber-attacks, war, riot, act of God, or governmental action.

 

12.12. This Agreement, including all Orders and referenced Schedules, appendices, exhibits and attachments attached hereto, contains the complete understanding and agreement of the Parties and supersedes all prior or contemporaneous agreements or understandings, oral or written, relating to the subject matter herein, including any Subscriber purchase order or similar document. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of the Parties. The headings herein are for convenience only and are not part of this Agreement. The Parties have executed this Agreement by their authorized representatives as of the Effective Date.

 

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