Resilinc Enterprise Services Terms and Conditions
These Enterprise Services Terms and Conditions (the “Terms”) are effective as of the Effective Date (defined below) and entered into by Resilinc Corporation (“Resilinc”) and the entity or person identified as the customer on the Order (defined below) that references these Terms (“Customer”). Collectively, Resilinc and Customer may be referred to as the “Parties” or in the singular as “Party”. If you are an Authorized User accessing the Enterprise Services, Licensed Data, or Documentation (each defined below) on behalf of Customer, then you agree to be bound by and to comply with these Terms as if you were Customer.
1. Definitions.
1.1. “Affiliate” means with respect to Customer or Resilinc, all entities controlling, controlled by, or under common control with Customer or Resilinc, and the term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management, operations, or policies of such entity, whether through ownership of voting securities, by contract, or otherwise.
1.2. “Authorized User” means Customer’s employee or contractor who is authorized by Customer to be provided a Resilinc account to access the Enterprise Services and Licensed Data under these Terms.
1.3. “Confidential Information” means all confidential and proprietary information of a Party that is disclosed to or otherwise encountered by the other 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.
1.4. “Content” means informational content, such as operational risk listings or categories, sample report templates or illustrative databases contained in the Enterprise Services or supplied by or on behalf of Resilinc to Customer with the Enterprise Services, as may be updated from time to time.
1.5. “Customer Data” means all data, including all text or image files, that are provided to Resilinc by Customer through Customer’s use of the Enterprise Services, including data transmitted to Resilinc by an Authorized User through use of the Enterprise Services features and functionality. Data sourced from Customer ceases to be considered Customer Data once aggregated, anonymized or otherwise substantially transformed therefrom. Data sourced from suppliers is not Customer Data.
1.6. “Documentation” means Resilinc’s electronic and hardcopy user guide for the Enterprise Services, which may be updated by Resilinc from time to time.
1.7. “Effective Date” means the date the applicable Order is effective in accordance with its terms.
1.8. “Enterprise Services” means software, products, and services provided, operated, and managed by Resilinc, and includes the web-based application and platform service that Customer subscribes to under the Order, whether accessed or used through any related mobile application or any other means or mechanism, and any updates or modifications to the same.
1.9. “Error” means a problem causing the Enterprise Services to not materially conform to the Documentation.
1.10. “Harmful Code” means any software code that contains any virus, back door, time bomb, Trojan Horse, worm, drop dead device, or other software routine designed to: (a) permit unauthorized access to, or use of, computing equipment or networks; (b) replicate, transmit, or activate itself without control of a person operating the computing equipment on which it resides; or (c) alter, disable, damage, or erase any other software without authorization.
1.11. “Intellectual Property” means all common law, statutory, and other registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to copyrights (including all works of authorship, whether or not copyrightable), trademarks, trade secrets, patents (including patentable ideas, patent applications, and continuations and divisionals thereof), and other proprietary rights issued, honored, or enforceable under any applicable laws anywhere in the world, including moral rights, database rights, know-how, and any other similar proprietary right arising or enforceable under applicable law.
1.12. “Licensed Data” means any data made available to Customer through the Enterprise Services, and may include, but is not limited to, Content, publicly available data that is mined and compiled by Resilinc, Third Party Products, event monitoring data, event history data, Supplier-provided data, and information generated by Resilinc such as performance and usage metrics, benchmarking, maturity models, best practices guides, Resilinc R Score, and other derivative products.
1.13. “Order” means the Order Form, purchase order, invoice, SOW (defined below), or other purchasing document(s) entered into between the Parties, including an online form, under which Customer subscribes to the Enterprise Services and/or Licensed Data, and/or purchases any related Professional Services.
1.14. “Professional Services” means training, system configuration, implementation, support, and other professional services provided by Resilinc to Customer and set forth in an accompanying statement of work (“SOW”) entered into between the Parties.
1.15. “Professional Services Fee” means the amounts set forth in an SOW that Customer is obligated to pay for the Professional Services.
1.16. “Subscription” means Customer’s subscription on the applicable Order to specific Enterprise Services and/or Licensed Data, for a certain number of Authorized Users, for a specific Subscription Term, and otherwise as more fully described in the applicable Order and herein.
1.17. “Subscription Term” means the term of authorized Use of the Enterprise Services and/or Licensed Data as set forth in the applicable Order.
1.18. “Subscription Fee” means the amount of the charges set forth in an Order that Customer is obligated to pay for the Subscription.
1.19. “Supplier” means an entity from whom Customer or other Resilinc customers source materials or services either directly or indirectly through multiple supply tiers.
1.20. “Support” means the support services described in the Order.
1.21. “Use” or “Using” means to: (a) access, utilize, download, install, use, engage with, display, or interact with the Enterprise Services, in accordance with these Terms; and (b) to read, process, or utilize the Documentation, Licensed Data, or Content in connection with Use of the Enterprise Services.
2. License Grant.
2.1. General. Subject to Customer’s compliance with these Terms, Resilinc hereby grants and Customer hereby accepts a limited, subscription-based, non-exclusive, non-transferable, and non-sublicensable, license to Use the Enterprise Services, Documentation, and Licensed Data during the Subscription Term in accordance with these Terms. Enterprise Services, Documentation, and Licensed Data are licensed for internal use only by Customer’s employees with a need to know.
2.2. Authorized Users. Customer shall ensure that it provides access to the Services only to Authorized Users. All Authorized Users shall be informed of, accept and comply with these Terms. Customer shall be responsible for all acts and omissions of its Authorized Users, and any acts or omissions by Authorized Users that would breach these Terms if done or omitted by Customer will be deemed a breach of these Terms by Customer.
2.3. Affiliate Use of Customer’s Subscription. Any Customer Affiliate may Use the Enterprise Services, Documentation, and Licensed Data pursuant to Customer’s Subscription only if expressly allowed under the Order, and only so long as such Affiliate Uses the Enterprise Services, Documentation, and Licensed Data only for its own and/or Customer’s internal business purposes and otherwise in accordance with these Terms. Customer shall ensure any such Affiliate complies with these Terms, and any acts or omissions by an Affiliate that would breach these Terms if done or omitted by Customer will be deemed a breach of these Terms by Customer. Where use of the Subscription by Affiliates is allowed under the Order, all references to “Customer” in these Terms and any applicable Order will apply equally to such Affiliates. Customer and Customer’s Affiliate(s) shall be jointly and severally liable for all Orders. Use by Affiliates counts toward Authorized User and Subscription totals and any other metrics or limitations provided under the Order.
2.4. Resilinc Affiliates. One or more Resilinc Affiliates may provide parts of the Enterprise Services, Licensed Data, or Professional Services to Customer or Customer Affiliates pursuant to these Terms. Resilinc and Resilinc Affiliates are collectively called “Resilinc”.
3. Customer Responsibilities and Restrictions.
3.1. Customer Responsibilities. Customer shall, and shall ensure that all Authorized Users: (a) Use the Enterprise Services, Documentation, and Licensed Data solely for Customer’s internal business purposes, and in accordance with the Documentation, these Terms, and all applicable laws, rules, and regulations; (b) ensure all Customer Data entered by Customer or Authorized Users into the Enterprise Services is accurate and complete, and that no Customer Data contains Harmful Code; (c) ensure the Use of all Customer Data in accordance with these Terms, including the entry of Customer Data into the Enterprise Services, and Resilinc’s processing thereof in accordance with these Terms, complies with all applicable laws, rules, and regulations and does not violate any third party’s rights; (d) prevent unauthorized access to, and use of, the Enterprise Services and Licensed Data, and (e) ensure the security of Customer’s and its Authorized Users’ access credentials and notify Resilinc promptly of any unauthorized access to or use of such access credentials.
3.2. Customer Cooperation. Customer shall provide Resilinc with reasonable cooperation and assistance in connection with Resilinc’s provision of the Enterprise Services and any Professional Services. Without limiting the foregoing, Customer shall respond promptly and accurately to all Resilinc’s requests for approval, information, or direction and shall provide prompt access to all necessary and appropriate resources described in an Order or SOW or as may otherwise be required for Resilinc to accomplish the objectives under any Order. Resilinc shall not be responsible for a default or delay in performance of its obligations under any Order or SOW to the extent such default or delay is attributable to the failure of Customer to fulfil its obligations under these Terms.
3.3. Governmental or Regulatory Inquiries. Customer shall promptly notify Resilinc of (and provide Resilinc with a copy of) any inquiries, direction, or orders received by Customer from governmental or regulatory authorities with respect to the Enterprise Services or Licensed Data.
3.4. Customer Restrictions. Except as permitted under these Terms or the Order, Customer shall not, and shall ensure that Authorized Users do not: (a) disassemble, reverse engineer, or otherwise attempt to discover the source, source code of, or trade secrets embodied in the Enterprise Services or Licensed Data; (b) sell, resell, distribute, transfer, lease, or grant sublicenses of the Enterprise Services, Documentation, or Licensed Data; (c) modify, copy, or create derivative works based on the Enterprise Services, Documentation, or Licensed Data; (d) remove, alter, or obscure the copyright, trademark, or any other proprietary rights or notices included within the Enterprise Services, Documentation, or Licensed Data; (e) use the Enterprise Services, Documentation, or Licensed Data in a manner not authorized under these Terms or the applicable Order; (f) use the Enterprise Services or Licensed Data in violation of any applicable law, rule, or regulation, including any applicable export/import laws, such as the Export Administration Regulations administered by the U.S. Department of Commerce, the laws and regulations administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations administered by the U.S. Department of State; (g) in any way access or use the Enterprise Services, Documentation, or Licensed Data to directly or indirectly benchmark, develop, promote, distribute, sell, or support any product or service that is competitive with the Enterprise Services or Licensed Data, or in any other manner that is to Resilinc’s detriment or commercial disadvantage or in any way that otherwise commercializes or monetizes the Enterprise Services, Documentation, or Licensed Data; (h) send or store material on or through the Enterprise Services containing any Harmful Code or code or content that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, discriminatory or otherwise objectionable, that impersonates any individual or entity or that misrepresents the identity of Customer or any Authorized User, that is false or is likely to otherwise mislead or deceive, that promotes, advocates, or assists with any illegal activity, or that violates the rights of any third party; (i) provide Enterprise Services, Documentation, and Licensed Data to others, whether directly in any media or indirectly through incorporation in a database, marketing list, report, or otherwise; (j) use or permit the use of Licensed Data to generate any statistical, comparative, or other information that is or will be provided to third parties (including as the basis for providing recommendations to others); (k) voluntarily produce Licensed Data in legal proceedings, unless required by law; (i) interfere with or disrupt the integrity or performance of the Enterprise Services or the Licensed Data or otherwise disrupt the use of the Enterprise Services or Licensed Data by any other customer of Resilinc; (j) attempt to gain unauthorized access to the Enterprise Services or Resilinc’s systems or networks; (k) violate any acceptable use policy or other third party terms applicable to any Third Party Products (defined below); or (l) scrape, harvest, or otherwise collect or capture any Licensed Data or other parts of the Enterprise Services, directly or indirectly, whether or not through use of tools or software.
4. Service Levels; Support; Modifications and Updates.
4.1. Service Levels. Resilinc’s Service Level Agreement is hereby incorporated into these Terms by reference (“Service Level Agreement”). Resilinc will not change the terms of its Service Level Agreement in ways that are materially worse for its customers generally without at least thirty (30) days advance written notice, and then only if Customer fails to respond within thirty (30) days with written notice of objection(s) to any such change(s).
4.2. Support. Resilinc shall provide Support as provided in the applicable Service Level Agreement.
4.3. Modifications and Updates. Resilinc may modify or update the Enterprise Services, Documentation, or Licensed Data at any time, in Resilinc’s sole discretion, provided that any so modified Enterprise Services, Documentation, or Licensed Data will still materially conform to any requirements under these Terms; provided further, however, that Resilinc may modify or update the Enterprise Services, Documentation, or Licensed Data in any way, even in ways that do not materially conform to any requirements under these Terms, in any country or jurisdiction where there is a government requirement or obligation that: (a) subjects Resilinc to any regulation or requirement not generally applicable to all businesses operating in that jurisdiction; (b) presents a hardship for Resilinc to continue operating the Enterprise Services without modification; and/or (c) causes Resilinc to believe the Enterprise Services, Documentation, or the Licensed Data, or the Use thereof, may conflict with any such requirement or obligation. Resilinc or its licensors, as applicable, shall have no obligation to validate, update, refresh, or modify the Licensed Data. Updates and modifications to the Enterprise Services, Documentation, and Licensed Data will be considered to be part of the Enterprise Services, Documentation, or Licensed Data, as applicable.
5. Term and Renewal.
5.1. Term. These Terms will come into effect on the Effective Date and will continue in effect as long as there are Orders or SOWs in force, unless terminated earlier in accordance with Section 13 (Termination). These Terms will apply to the Use of the Enterprise Services, Documentation, and Licensed Data by Customer regardless of whether an Order or other documents executed by the Parties refer to or incorporate these Terms, unless there is another written agreement between the Parties governing Customer’s Use of the Enterprise Services, Documentation, or Licensed Data.
5.2. Subscription Terms and Renewal. The start and end date of each Subscription Term is as defined in the applicable Order. Renewal(s) of any Order shall be governed by the Order itself. If an Order fails to specify renewal terms, the term of the Order shall conclude upon the expiration of the Subscription Term set forth in the Order. Resilinc may, at its discretion, elect to treat any Use of any Enterprise Services, Documentation, or Licensed Data by Customer after expiration of the applicable Subscription Term and prior to any mutually executed renewal Order as an extension or renewal of the most recent Order subject to these Terms and Resilinc’s then-current pricing.
5.3. No Modifications to Subscription Metrics. Customer may not change the number of Authorized Users, the length of a Subscription Term, or other metrics pertaining to a renewal Subscription Term without Resilinc’s prior, written consent, and if Resilinc consents to such changes the renewal Subscription Term will be re-priced at Resilinc’s then-current pricing.
6. Order and Payment
6.1. Payment Terms. All Subscription Fees, Professional Services Fees, and expenses are in U.S. Dollars (USD), are non-cancelable and non-refundable and are not based on actual usage. Subscription Fees are invoiced annually in advance, and Professional Service Fees are invoiced in accordance with the Order. Customer may be invoiced by Resilinc or by a reseller or other third party through whom Customer obtained access to the Enterprise Services, Licensed Data, or Professional Services. Regardless of who sends the invoice, Customer shall pay, to the entity issuing the invoice, each undisputed invoice in full within thirty (30) days after the invoice date uness other payment terms are specified in the Order. All fees are based on Subscription rights acquired and not actual usage. Customer shall reimburse Resilinc for all pre-approved travel and living expenses incurred by Resilinc in the performance of Professional Services.
6.2. Taxes. Unless otherwise stated, invoiced amounts are exclusive of all taxes, levies, duties, and other charges imposed by taxing and other governmental authorities, including for example, value-added, sales, use, or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). All payments under these Terms shall be made free and clear and without deduction of Taxes by Customer. Customer is responsible for paying all Taxes associated with its licenses hereunder, excluding taxes based on Resilinc’s net income or property. If Customer withholds any Taxes, Customer will gross up the payment to Resilinc for the amount specified in the Order. If Resilinc has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Resilinc with a valid tax exemption certificate authorized by the appropriate taxing authority.
6.3. Customer Requirements. Customer is responsible for the timely communication of any vendor set-up and invoice submission requirements (e.g., purchase orders, vendor registration forms, use of an independent portal for invoice submission, etc.). Customer will be liable for any delays in payment caused by its failure to promptly communicate any such requirements. Any fees associated with the submission of an invoice and/or receipt of payment are the responsibility of Customer, and if Resilinc is required to pay any such fees then Resilinc will invoice such fees to Customer and Customer shall pay such fees. If payment is being made through a Reseller or any other third party, then Customer is responsible for working with such third party on any such Customer requirements, provided that Customer is obligated to pay all amounts owned under these Terms regardless of whether such requirements are met.
6.4. Disputes; Overdue Payments. Customer may dispute invoiced amounts only by submitting a written notice of the dispute to Resilinc, including details and supporting documentation for the dispute, within fifteen (15) days after the applicable invoice date. If Customer fails to pay any amounts when due (and such amounts are not subject to a good faith dispute by Customer in accordance with the preceding sentence), then: (a) such amounts will accrue interest at the rate of one and one-half percent (1.5%) per month or the highest rate permitted by applicable law, whichever is less, determined and compounded daily from the date due until the date paid; and (b) if Customer fails to cure such non-payment within thirty (30) days after Resilinc has provided written notice of the same, Resilinc may, in addition to its other rights and remedies provided hereunder or at law, terminate or suspend any Enterprise Services or Professional Services. Resilinc may accept any partial payment without prejudice to Resilinc’s right to recover remaining amounts owed or to pursue any other right or remedy. No endorsement or statement on any check or payment or in any letter accompanying a check or payment or elsewhere is to be construed as an accord or satisfaction.
7. Data Processing.
7.1. Customer Data. Resilinc’s access, use, and other processing of Customer Data is subject to Resilinc’s Customer Data Policy and Data Processing Addendum.
7.2. Supplier Data. Resilinc’s access, use, and other processing of data obtained from Suppliers is subject to Resilinc’s Privacy Statement.
8. Proprietary Rights.
8.1. Intellectual Property Rights. Except as expressly stated herein: (a) Resilinc and/or Resilinc’s licensors will retain all right, title, and interest in and to the Enterprise Services, Documentation, and Licensed Data, including all Intellectual Property therein; (b) Customer and/or Customer’s licensees will retain all right, title, and interest in and to the Customer Data, including all Intellectual Property therein; and (c) these Terms do not grant either Party any right, title, or interest, implied or otherwise, in or to the other’s Intellectual Property.
8.2. Third Party Products. The Enterprise Services and Licensed Data may include services, software, data, products, information, materials, or integrations provided, hosted, or obtained from third parties (“Third Party Products”). Some Third Party Products may require Customer to obtain a separate license from, or have other terms that apply with, the third party provider, in which case such Third Party Products will be subject to such third party terms and not these Terms. Customer’s Use of the Enterprise Services to integrate with a Third Party Product shall be considered instructions to Resilinc for the processing of Customer Data. Except as otherwise provided in these Terms, or in any separate license or other terms with the applicable third party, Customer will not obtain any right, title, or interest in or to the Third Party Products.
9. Confidential Information.
9.1. Obligation as to Confidential Information. Each Party acknowledges that it may obtain access to the other Party’s Confidential Information. Each Party, as the receiving Party, shall: (a) keep confidential and protect the disclosing Party’s Confidential Information from unauthorized use or disclosure, using at least the same degree of care that the receiving Party uses to protect its own confidential information of similar sensitivity, but in no event less than a reasonable degree of care; (b) not use the disclosing Party’s Confidential Information except as necessary to perform the receiving Party’s rights and obligations under these Terms; and (c) not disclose the disclosing Party’s Confidential Information to any third party, except: (i) to the receiving Party’s employees, contractors, and other representatives who have a need to know such Confidential Information for the receiving Party to perform its rights and obligations under these Terms and who are subject to obligations and restrictions of confidentiality, non-use, and non-disclosure at least as restrictive as those in these Terms; and (ii) as required in response to a valid law, rule, or regulation, or a valid order or other requirement by a court or regulatory or administrative body of competent jurisdiction, provided that the receiving Party shall notify the disclosing Party as soon as the receiving Party receives notice of the required disclosure, shall assist the disclosing Party in opposing the required disclosure, and, if despite the Parties’ efforts the disclosure is still required, will disclose only so much of the disclosing Party’s Confidential Information as is strictly necessary to satisfy the required disclosure. The receiving Party will be solely responsible for its employees, contractors, other representatives, and, as to Customer, its Authorized Users’, compliance with the terms of this Section. This Section supersedes and replaces the terms of any prior confidentiality or non-disclosure agreement between the Parties regarding the subject matter covered by these Terms.
9.2. Exceptions. Confidential Information does not include any information that the receiving Party can show: (a) was known to the receiving Party prior to disclosure by the disclosing Party; (b) was publicly disclosed without restriction through no fault of the receiving Party; (c) was received from a third party without breach of any duty or obligation owed to the disclosing Party; or (d) was independently developed by the receiving Party or unaffiliated third party without use of the disclosing Party’s Confidential Information.
10. Representations and Warranties.
10.1. Resilinc General Representations and Warranties. Resilinc hereby represents and warrants to Customer that: (a) it has the full corporate right, power, and authority to enter into these Terms and to perform the acts required of it under these Terms; and (b) Resilinc has taken commercially reasonable efforts to ensure the Enterprise Services do not contain any Harmful Code.
10.2. Limited Enterprise Services Representation and Warranty. Resilinc hereby represents and warrants to Customer that, during the Subscription Term, the Enterprise Services will operate without Errors (“Performance Warranty”). Customer’s exclusive remedy, and Resilinc’s sole liability, for breach of the Performance Warranty is that, after submission of a support ticket by Customer and if Resilinc can reproduce the Error, Resilinc shall correct or provide a work around for the Error. If the Error continues without correction or work-around for thirty (30) days after Resilinc’s attempted solution, or other mutually agreed upon timeframe, then Customer may terminate the affected Subscription. The Performance Warranty will not apply to, and Resilinc shall have no obligation or liability with respect to, Errors to the extent caused by: (a) modifications to the Enterprise Services by any person other than Resilinc or a person acting at Resilinc’s direction; (b) use of the Enterprise Services in connection with Customer’s hardware, network, or operating systems, or in connection with third party products, services, or data that was not provided by Resilinc or on Resilinc’s behalf, if the Error would not have occurred but for the use of the third party product, services, or data; (c) Customer or Authorized Users’ operator errors or the Customer Data; or (d) use of the Enterprise Services in a manner not authorized by the Documentation or these Terms. THIS SECTION SETS FORTH CUSTOMER’S EXCLUSIVE REMEDIES, AND RESILINC’S SOLE LIABILITY, IN CONNECTION WITH ANY ERROR OR OTHER FAILURE OF THE ENTERPRISE SERVICES TO PERFORM IN ACCORDANCE WITH THE DOCUMENTATION OR ANY OTHER MANNER.
10.3. Limited Professional Services Representation and Warranty. Resilinc hereby represents and warrants to Customer that all Professional Services provided under these Terms will be performed in a professional and workmanlike manner, by competent personnel with appropriate experience in providing such Professional Services (the “Services Warranty”). Customer’s exclusive remedy, and Resilinc ’s sole liability, for breach of the Service Warranty shall be the re-performance of the non-conforming Professional Services. THIS SECTION SETS FORTH CUSTOMER’S EXCLUSIVE REMEDY, AND RESILINC’S SOLE LIABILITY, IN CONNECTION WITH ANY CLAIM THAT THE PROFESSIONAL SERVICES DO NOT SATISFY APPLICABLE REQUIREMENTS.
10.4. Customer Representations and Warranties. Customer hereby represents and warrants to Resilinc that: (a) it has the full corporate right, power, and authority to enter into these Terms and to perform the acts required of it under these Terms, (b) Customer has all rights, has obtained all consents, and has provided all notices necessary to provide the Customer Data to Resilinc; (c) Customer Data does not contain any Harmful Code; (d) the Customer Data, and Customer’s provision of the Customer Data to the Enterprise Services, will not violate these Terms, any applicable law, rule, or regulation, including any applicable export/import laws, such as the Export Administration Regulations administered by the U.S. Department of Commerce, the laws and regulations administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations administered by the U.S. Department of State, or the intellectual property or other rights of any third party.
10.5. Third Party Products. The representations and warranties in this Section 10 do not apply to any third party products, all of which are subject only to the representations and warranties provided by the applicable third party provider, if any.
10.6. Disclaimer. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES MADE BY RESILINC IN THIS SECTION 10, THE ENTERPRISE SERVICES, LICENSED DATA, AND PROFESSIONAL SERVICES ARE PROVIDED ‘AS-IS’, WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, RESILINC DOES NOT MAKE ANY OTHER WARRANTIES OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. RESILINC DOES NOT REPRESENT OR WARRANT THAT THE ENTERPRISE SERVICES, LICENSED DATA, OR THIRD-PARTY PRODUCTS, ARE ACCURATE, COMPLETE, RELIABLE, CURRENT, ERROR-FREE, WITHOUT INTERRUPTION, OR THAT THEY WILL SATISFY CUSTOMER’S REQUIREMENTS. NO WARRANTIES OR REPRESENTATIONS MADE BY ANY RESELLER OR OTHER THIRD PARTY WILL BE BINDING ON RESILINC. THE RISKS OF USE OF THE ENTERPRISE SERVICES AND LICENSED DATA TO MAKE SUPPLY CHAIN DECISIONS REMAINS SOLELY WITH CUSTOMER. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST. CUSTOMER MAY HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION.
11. Indemnification.
11.1. Customer Indemnification. Customer shall indemnify, and at Resilinc’s election defend, Resilinc, at Customer’s expense, from and against any losses, damages, liabilities, costs and expenses (including reasonable attorneys’ fees), claims, demands, suits, or proceedings (“Claims”) arising out of: (a) any allegation that the Customer Data, or Customer’s use of the Enterprise Services or Licensed Data in violation of these Terms, infringes or otherwise violates a third party’s intellectual property rights, including trademark, copyright, or patent rights, or a third party’s privacy rights; or (b) arising out of Customer’s, or any Authorized User’s breach of these Terms or applicable law, rule, or regulation. Resilinc shall promptly notify Customer of any Claims, provided that Customer’s obligations under this Section will not be limited by Resilinc’s delay in providing notice except to the extent such delay actually prejudices Customer. Customer may not enter into any settlement regarding a Claim without Resilinc’s prior, written consent, unless such settlement does not include any admission of guilt or liability on Resilinc’s behalf and does not impose any liability or obligations on Resilinc.
11.2. Resilinc Indemnification. Resilinc shall indemnify, and at Customer’s election defend, Customer, at Resilinc’s expense, from and against any Claims arising out of any allegation that the Enterprise Services or Licensed Data violate a third party’s intellectual property rights, including trademark, copyright, or patent rights. Customer shall promptly notify Resilinc of any Claims, provided that Resilinc’s obligations under this Section will not be limited by Customer’s delay in providing notice except to the extent such delay actually prejudices Resilinc. Resilinc may not enter into any settlement regarding a Claim without Customer’s prior, written consent, unless such settlement does not include any admission of guilt or liability on Customer’s behalf and does not impose any liability or obligations on Customer. Resilinc will have no obligations to indemnify or defend Customer under this Section 11.2 to the extent any allegations of intellectual property infringement arise out of Customer’s unauthorized use of the Enterprise Services or combination of the Enterprise Services or Licensed Data with Customer Data. If a Claim for intellectual property infringement based on the Enterprise Services or Licensed Data is brought, or if Resilinc believes such a claim is reasonably likely, Resilinc may, in its sole discretion: (a) modify the Enterprise Services or Licensed Data to make them non-infringing, provided that they still comply with the requirements of this Agreement; (b) obtain the right for Customer to continue using the Enterprise Services or Licensed Data; or (c) terminate this Agreement or the applicable Order, in which case Resilinc will provide a pro-rata refund of any prepaid amounts, to account for any time left in the applicable Subscription Term at the time of the termination.
12. Limitation of Liability. EXCEPT FOR RESILINC’S CLAIMS FOR UNPAID FEES, LIABILITIES ARISING FROM THE BREACH OF SECTIONS 3 (CUSTOMER RESPONSIBILITIES AND RESTRICTIONS) OR 8 (PROPRIETARY RIGHTS), AND LIABILITIES IN CONNECTION WITH INDEMNIFICATION OBLIGATIONS UNDER SECTION 11 (INDEMNIFICATION): (A) IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY ARISING OUT OR RELATED TO THESE TERMS TO THE OTHER PARTY FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOSS OR INACCURACY OF DATA, LOSS OF PROFITS OR REVENUE, BUSINESS INTERRUPTION, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER ARISING AND, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY AMOUNTS IN EXCESS OF THE AMOUNTS PAID OR PAYABLE BY CUSTOMER TO RESILINC IN THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
13. Termination.
13.1. Termination for Cause. Either Party may terminate these Terms or any Subscription immediately by written notice to the other Party if the other Party: (a) materially breaches these Terms (including, as to Resilinc’s termination right, if Customer fails to pay any amount owed when due), and fails to cure the breach within thirty (30) days following written notice of such breach; (b) becomes insolvent; (c) makes an assignment for the benefit of creditors; (d) files or has filed against it a petition in bankruptcy or seeking reorganization; (e) has a receiver appointed; or (f) institutes any proceedings for liquidation or winding up or has such proceedings instituted against it.
13.2. Effect of Expiration or Termination. On termination or expiration of these Terms or any Subscription: (a) Customer shall immediately pay all outstanding amounts owed to Resilinc, either under these Terms or under the terminated Subscription, as applicable; (b) Customer shall immediately cease all access to the affected Enterprise Services and Licensed Data and delete all Licensed Data and Documentation in Customer’s possession or control related to the affected Subscription, and provide Resilinc with a written certification from an executive at Customer that such cessation and deletion are complete; (c) each Party shall return, or at the disclosing Party’s election destroy, all of the disclosing Party’s Confidential Information in the receiving Party’s possession or control; provided, however, that the receiving Party may maintain copies of Confidential Information to the extent such copies are maintained in accordance with receiving Party’s standard backup and records retention policies, including that such copies will be deleted in accordance with such policies, and all copies of Confidential Information maintained in accordance with this sentence shall remain subject to the terms of Section 9 (Confidential Information) until it is deleted.
13.3. Survival. Upon any termination of an Order or these Terms, only the following terms survive: Sections 1 (Definitions), 3.4 (Customer Restrictions), 6.1 (Payment Terms), 8 (Proprietary Rights), 9 (Confidential Information), 10.6 (Disclaimer), 11 (Indemnification), 12 (Limitation of Liability), 13 (Termination), and 14 (Miscellaneous).
14. Miscellaneous.
14.1. Governing Law and Consent to Jurisdiction. These Terms are governed by and construed in accordance with the laws of the State of Delaware and the federal laws of the United States of America. The Parties hereby agree to submit all disputes pertaining to these Terms exclusively to the jurisdiction and forum of the state and federal courts in the Southern District of New York. Each Party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to these Terms. The United Nations Convention on Contracts for the International Sale of Goods does not apply or govern these Terms, or the Enterprise Services, Licensed Data, or Professional Services.
14.2. Export Controls. Customer acknowledges that the Enterprise Services and Licensed Data are subject to export controls under United States laws and regulations, including the Export Administration Regulations, 15 C.F.R. Parts 730-774, and may be subject to other applicable laws and regulations in other jurisdictions relating to export, re-export, import, transfer or other disposition of software and other technology (collectively, “Export Control Laws”). Customer shall comply with all applicable Export Control Laws applicable to the Enterprise Services and Licensed Data.
14.3. Assignment. Neither Party shall assign its rights or obligations, whether by operation of law or otherwise, without the prior written consent of the other Party. Notwithstanding the foregoing, Resilinc may, upon notice and without Customer’s consent, assign these Terms: (a) in connection with a merger, reorganization or sale of all or substantially all of the assets or equity of Resilinc; and (b) to any Resilinc Affiliate. Any attempted or purported assignment in violation of this Section will be null and void. Subject to the foregoing, these Terms bind and inure to the benefit of the Parties and their respective successors and permitted assigns.
14.4. Force Majeure. Each Party will be excused from performance of its obligations under these Terms to the extent that performance is rendered impossible by an event or circumstance beyond that Party’s reasonable control, such as earthquake, fire, flood, governmental action, worldwide illness, epidemic, outbreak, quarantine, war, terrorist attack, or labor disruptions, provided that such Party gives prompt written notice thereof to the other Party (each, a “Force Majeure Event”). Any failure occasioned by the foregoing shall be remedied as soon as reasonably possible.
14.5. U.S. Government Rights (if applicable). All Resilinc software, including that included in or utilized by or for the Enterprise Services, is commercial computer software, and all services are commercial items. “Commercial computer software” has the meaning set forth in Federal Acquisition Regulation (“FAR”) 2.101 for civilian agency purchases and the Department of Defense (“DOD”) FAR Supplement (“DFARS”) 252.227-7014(a)(1) for defense agency purchases. If the software is licensed or the services are acquired by or on behalf of a civilian agency, Resilinc provides the commercial computer software and/or commercial computer software documentation and other technical data subject to these Terms as required in FAR 12.212 (Computer Software) and FAR 12.211 (Technical Data) and their successors. If the software is licensed or the services are acquired by or on behalf of any agency within the DOD, Resilinc provides the commercial computer software and/or commercial computer software documentation and other technical data subject to these Terms as specified in DFARS 227.7202-3 and its successors. Only if this is a DOD prime contract or DOD subcontract, the Government acquires additional rights in technical data as set forth in DFARS 252.227-7015. This U.S. Government Rights clause is in lieu of, and supersedes, any other FAR, DFARS or other clause or provision that addresses Government rights in computer software or technical data.
14.6. Feedback; Background Knowledge. To the extent Customer provides any suggestions, ideas, enhancement requests, feedback, comments, or recommendations regarding the Enterprise Services, Licensed Data, or Documentation (“Feedback”), Customer agrees that Resilinc will own and may use such Feedback without restriction and without obligation to Customer. If and to the extent Customer obtains any right, title, or interest in or to Feedback, Customer hereby, effective on the creation of such Feedback, irrevocably assigns all such right, title, and interest to Resilinc. During the provision of the Enterprise Services and Professional Services, Resilinc will utilize its own experience, know-how, learnings, and background knowledge (“Background Knowledge”), and in providing the Enterprise Services and Professional Services to Customer and other customers Resilinc may gain additional Background Knowledge. Resilinc will retain all right, title, and interest, including Intellectual Property therein, in and to its Background Knowledge.
14.7. Independent Contractor. Each Party’s relationship to the other is that of an independent contractor. Nothing in these Terms, and no course of dealing between the parties, is to be construed to create a partnership, joint venture or employment or agency relationship between the Parties. Neither Party has any authority to bind, incur liability for or otherwise act on behalf of the other Party, and neither Party will represent or imply that it has any such authority.
14.8. Injunctive Relief. The Parties hereby acknowledge that a breach or threatened breach of Sections 2.1 (General), 3 (Customer Responsibilities and Restrictions), 8 (Proprietary Rights), or 9 (Confidential Information) could cause irreparable injury to the non-breaching Party. Accordingly, in the event of any actual or threatened breach of such Sections, the breaching Party agrees that the non-breaching Party shall be entitled to immediate injunctive relief, without the need to post bond or surety or prove that monetary damages would be inadequate, to prevent or stop such breach, as well as other equitable and legal remedies available to such Party.
14.9. Notices. Except as described in Section 14.10, notices to Customer shall be sent to Customer’s email listed on the Order (or if none is provided on the Order to any email address Resilinc has for Customer), and notices to Resilinc must be sent to [email protected]. Notice will be treated as received when the email is sent, as long as the sender does not receive an automatic response that the email was not delivered or was undeliverable. Customer is responsible for keeping a current email address current with Resilinc throughout all Subscription Terms. The Parties may use emails to satisfy written approval and consent requirements under these Terms.
14.10. Claims Notices and other demands. Notices to Resilinc regarding Claims must be in writing and addressed to the address set forth below (or to such other address that Resilinc may designate from time to time in accordance with Section 14.9) (“Claims Notices”). Unless otherwise agreed herein, all Claims Notices must be delivered by personal delivery, nationally recognized overnight courier, or certified or registered mail (in each case, return receipt requested, postage prepaid). A Claims Notice is effective only on receipt by Resilinc and only if Customer has complied with the requirements of this Section.
Notice to Resilinc:
Legal
Resilinc Corporation
1525 McCarthy Blvd, Suite 1122
Milpitas, CA 95035
With a copy to (provided such copy is not the Claims Notice):
[email protected]
Subject line: Claims notice
14.11. Use of Customer Name. Customer may, at its discretion, participate in reasonable case studies conducted by Resilinc regarding the use of the Enterprise Services, Licensed Data, and Professional Services, provided that such participation shall be at no cost to Customer. Customer agrees that Resilinc may use Customer’s name, logo, and testimonial in any such case study about Resilinc’s work for Customer and Customer testimonials, provided that Resilinc shall not disclose Customer Confidential Information in violation of its obligations and restrictions under these Terms. Resilinc will adhere to Customer’s approval process of any case studies or testimonials prior to use. Resilinc may use Customer’s name and logo on its website and marketing materials to list Customer as a customer of Resilinc unless Customer instructs Resilinc to the contrary in writing.
14.12. Headings; Construction; Advice of Counsel. Section headings in these Terms are for convenience only and will not in any way affect the meaning or interpretation of each section. The word “including” is not intended to be limiting. No rule of strict construction is to be used when interpreting these Terms. The Parties acknowledge that they have been advised by counsel of their own choosing, played equal parts in negotiating these Terms and that its terms will be interpreted without any bias against one Party as drafter.
14.13. Waiver. No waiver of any term or breach of these Terms will be effective unless signed by the Party granting the waiver, and a waiver in one instance will not waive any other term or breach, concurrently or in the future.
14.14. Attorneys’ Fees. If any action, suit, or other legal or administrative proceeding is instituted or commenced by either Party against the other Party arising out of these Terms, the prevailing Party is entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing Party.
14.15. Entire Agreement. These Terms (including any Order) and any other terms referenced in or incorporated into these Terms, constitute the entire agreement between the Parties concerning the Enterprise Services, Documentation, or Licensed Data, and Professional Services, and supersede any prior or contemporaneous agreements, communications, or understandings between the Parties (whether written or oral). The Order is governed by and subject to these Terms, and in case of any conflicts between these Terms, other terms referenced in or incorporated into these Terms, and the Order, the following order of precedence shall apply: (a) the Order; (b) such other terms referenced in or incorporated into these Terms; and (c) these Terms. Both Parties must agree in writing to any amendments or modifications to these Terms and any such amendments or modifications of any terms set forth herein, other than in an Order indicating that its provisions control notwithstanding anything herein to the contrary, must specifically identify themselves as such. With respect to maintaining compliance with applicable data protection laws, Resilinc may unilaterally modify these Terms, but shall provide Customer 30 days prior written notice of any amendments or modifications. All terms, conditions, or provisions which may appear as pre-printed language or otherwise be inserted by Customer onto any invoice, acknowledgement, or other documents provided by Customer, or that appear on Customer’s website, shall not change, modify, alter or amend any portion or provision hereof. If any provision of these Terms is declared invalid or unenforceable, then the court shall replace the invalid or unenforceable provision with a valid and enforceable provision that most accurately reflects the Parties’ intentions, and the remaining provisions of these Terms shall remain in full force and effect.