Revised February 3, 2022
This MSA is between Secure Packet and Customer, each a “party” and together the “parties”.
1. DEFINED TERMS. The defined terms in Schedule 1 (attached) shall be applicable to the Agreement.
2. SERVICES. Secure Packet shall provide the Services in accordance with the Agreement, and all laws applicable to Secure Packet. The parties shall comply with the MSA Terms, and any additional security specifications identified in the Service Order and Product Terms. Customer agrees that its use of Services shall comply with the AUP and any Secure Packet Configuration Requirements.
3. FEES.
3.1. Payment. Customer shall pay the Fees due within 14 days from the invoice date, in the US Dollars currency, and without withholding (except as expressly permitted in section 3.3), setoff, counterclaim, or deduction. If Customer has arranged for payment by credit card or automated clearing house, Secure Packet may charge Customer’s card or account on or after the invoice date. If Customer’s undisputed payment is overdue by at least 14 days, Secure Packet may immediately suspend the Services on written notice. Secure Packet shall undertake collection efforts prior to suspension for non-payment. Invoices that are not disputed by Customer in good faith and in written detail within 60 days of the invoice date are conclusively deemed to be accepted by Customer as accurate. Secure Packet may charge interest on overdue amounts at the greater of 1.5% per month or the maximum legal rate, and may charge Customer for any cost or expense arising out of Secure Packet’s collection efforts. Secure Packet may charge its then-current rates if Customer continues to use any Services following termination of the Agreement or applicable Service Order. Customer is responsible for keeping its billing, account permissions, and other account information up to date.
3.2. Fee Increases. Unless otherwise stated to the contrary in the Agreement, there will be no Fee increases during the Initial Term. However, Secure Packet may increase Fees following expiration of the Initial Term, any Renewal Term, or during any Auto-Renewal Term on giving at least 30 days advance written notice. In the event of a Third Party Fee (such as software vendors or third party providers) increase at any time, Secure Packet may also increase Customer’s Fees by the same percentage amount on 14 days advance written notice. Consumer Price Index (CPI) increase will occur on the anniversary month of services provided once a year. CPI will be determined by the official United States of America provided data points for the prior 12 months.
3.3. Taxes. All amounts due to Secure Packet are exclusive of Tax. Customer shall pay Secure Packet any Tax that is due. Customer shall provide Secure Packet with timely, accurate, and adequate information and documentation sufficient to: (i) permit Secure Packet to determine if any Tax is due; (ii) evidence any Customer exemption from Tax, in advance of invoicing; and (iii) evidence Customer’s payment of any Local Withholding Taxes. All payments to Secure Packet shall be made without any withholding or deduction for any taxes, except for Local Withholding Taxes. Subject to receipt of sufficient evidence of Customer payment of any Local Withholding Taxes, Secure Packet shall remit such cost to Customer in the form of a credit on Customer’s outstanding account balance.
4. TERM AND TERMINATION.
4.1. Term. This MSA shall continue until terminated in accordance with its terms. The Initial Term for any non-monthly subscription will default to 36 months unless specified in writing on the Service Order. Service Orders for Recurring Services shall be subject to the Auto Renewal Term unless: (i) otherwise stated in the Agreement; (ii) the parties enter into an agreement for a Renewal Term; or (iii) either party provides the other with written notice of termination at least 90 days prior and not more than 120 days in advance to the expiration of the then-current term.
(A) Monthly Subscriptions. The Subscription Initial Term for a Monthly Subscription is one (1) month
beginning on the date the Subscription is provisioned and expiring a the end of the Billing Cycle. By
default, each Subscription Renewal Term for a Monthly Subscription is one (1) month beginning on
the date the Subscription Initial Term or each subsequent Subscription Renewal Term thereafter ends,
as the case may be. To prevent the automatic renewal of a Monthly Subscription, You shall notify
Secure Packet of Your intent not to renew the Subscription at least thirty (35) days prior to the end of the
Subscription Term.
4.2. Termination for Convenience. For Recurring Services, unless otherwise stated in the Agreement, Customer may terminate all or part of any Service Order for convenience at any time by giving Secure Packet at least 90 days advance written notice, subject to an early termination fee equal to the monthly recurring Fee times the number of months remaining in the then-current term of the Service Order for the Services that have been terminated. If Secure Packet permits Customer to cancel or delay the scheduled termination date, Customer must provide 90 days written notice of any rescheduled termination date.
4.3. Termination for Cause.
(A) Either party may immediately terminate the Agreement and/or the affected portions of a Service Order for cause on written notice if the other party materially breaches the Agreement and, if the breach is remediable, does not remedy the breach within 30 days of the non-breaching party’s written notice describing the breach.
(B) Secure Packet may immediately terminate the Agreement and/or the affected portions of a Service Order for breach on written notice if, following suspension of Customer’s Services for non-payment, any invoiced and undisputed amount remains overdue for a further ten days.
(C) Subject to applicable law, either party may immediately terminate the Agreement and/or any Service Order on written notice if the other party enters into compulsory or voluntary liquidation, or ceases to carry on business, or takes or suffers any similar action which the other party reasonably believes means that it may be unable to pay its debts. Secure Packet’s obligation to provide Services is contingent on verification that Customer at all times satisfies Secure Packet’s credit criteria.
(D) Notwithstanding anything to the contrary in the Agreement, subject to applicable law, the Fees for the Services through the conclusion of all Service Orders shall immediately become due in the event Secure Packet terminates the MSA in accordance with this section 4.3.
5. CONFIDENTIAL INFORMATION. Each party agrees not to use the other’s Confidential Information except in connection with the performance or use of the Services, the exercise of its legal rights under the Agreement, or as required by law, and shall use reasonable care to protect Confidential Information from unauthorized disclosure. Each party agrees not to disclose the other’s Confidential Information to any third party except: (i) to its Representatives, provided that such Representatives agree to confidentiality measures that are at least as stringent as those stated in the Agreement; (ii) as required by law; (iii) in response to a subpoena, court order, or other compulsory legal process, provided that the party subject to such process shall give the other written notice of at least seven days prior to disclosing Confidential Information, unless the law forbids such notice; or (iv) with the other party’s consent.
6. INTELLECTUAL PROPERTY.
6.1. IP Ownership. Unless otherwise specifically stated in the applicable Service Order, as between the parties, (i) Secure Packet owns all Intellectual Property in the Services and any Deliverables (excluding Customer IP); and (ii) each party otherwise owns Intellectual Property it creates, authors, or invents.
6.2. Secure Packet IP License. If Customer’s use of the Services or any Deliverables requires Customer to use Secure Packet IP, Secure Packet grants to Customer a limited, worldwide, non-exclusive, non-sublicensable, non- transferable, royalty-free right and license (for Customer’s and permitted end user’s internal use) to Secure Packet IP: (i) in the Services, as necessary to use the Services in compliance with the Agreement for the duration of the Services; and (ii) in any Deliverables for the term of the Service Orders.
6.3. Customer IP License. If Secure Packet’s provision of the Services or any Deliverables requires Secure Packet to use Customer IP, Customer must provide access to the Customer IP and grants to Secure Packet a limited, worldwide, non-exclusive, non-transferable, royalty-free right and license (with right of sublicense where required to perform the Services, but otherwise without the right to sublicense) to Customer IP solely for the purpose of providing the Services and any Deliverables.
6.4. Service Modification. Secure Packet may modify the Services or Deliverables in response to any claim of third party Intellectual Property infringement, and if Secure Packet determines that it is not reasonably or commercially practicable to modify or obtain the right to use the allegedly infringing element, Secure Packet may terminate the Services and/or Deliverables on 60 days’ notice without liability except to refund amounts paid for unused Services (prorated as to portions of the Services and/or Deliverables terminated).
7. INDEMNIFICATION.
7.1. If Secure Packet, its Affiliates, or any of its or their respective Representatives (collectively, the “Indemnitees” or “Indemnified Parties”) are faced with a claim by a third party arising out of Customer’s breach of (i) a TPS Agreement or agreement with Customer’s end user, or (ii) the AUP, then Customer shall hold Secure Packet harmless and pay the cost of defending the claim (including reasonable legal and professional fees and expenses) and any damages, losses, fines, or other penalties imposed on or incurred by the Indemnitees as a result of the claim. Customer’s obligations under this section 7 include claims arising out of the acts or omissions of Customer’s employees, agents, end users, any other person to whom Customer has given access to any portion of the Customer Configuration, and any person who gains access to any portion of the Customer Configuration as a result of Customer’s failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by Customer.
7.2. If Secure Packet receives notice of a claim that is covered by this section 7, Secure Packet shall give Customer prompt written notice thereof. Secure Packet shall be allowed to conduct the defense of the matter, including choosing legal counsel to defend the claim, provided that the choice is reasonable and is communicated to Customer. Customer shall comply with Secure Packet’s reasonable requests for assistance and cooperation in the defense of the claim. Secure Packet may not settle the claim without Customer’s consent, which may not be unreasonably withheld, delayed, or conditioned. Customer shall pay costs and expenses due under this section 7 as Secure Packet incurs them.
8. LIMITATIONS ON DAMAGES.
8.1. Notwithstanding anything in the Agreement to the contrary:
(A) Secure Packet’s liability arising from: (i) death or personal injury caused by negligence; (ii) fraudulent misrepresentation; or (iii) any other loss or damages for which such limitation is expressly prohibited by applicable law, shall be unlimited.
(B) Subject to section 8.1(A), the maximum aggregate liability of Secure Packet and any of its Representatives in connection with the Services or the Agreement under any theory of law shall not exceed the actual damages incurred, up to the greater of: (i) an amount equal to three times the Fees payable by Customer for the Services that are the subject of the claim in the first month in which Fees are charged under the Agreement, or (ii) the total amount paid by Customer to Secure Packet for the Services that are the subject of the claim in the six months immediately preceding the event(s) that first gave rise to the claim.
8.2. Neither party (nor any of its Representatives) is liable to the other party for any indirect, special, incidental, exemplary, or consequential loss or damages of any kind. Neither party is liable for any loss or damages that could have been avoided by the damaged party’s use of reasonable diligence, even if the party responsible for the damages has been advised or should be aware of the possibility of such damages. In no event shall either party be liable to the other for any punitive damages, or for any loss of profits, data, revenue, business opportunities, customers, contracts, goodwill, or reputation.
8.3. Neither party shall be liable or be in breach of the Agreement (excluding in relation to the Customer’s payment obligations) if failure to perform an obligation is due to an event beyond its control, including significant failure of a part of the power grid, failure of the Internet, natural disaster or weather event, fire, acts or orders of government, war, riot, insurrection, epidemic, strikes or labor action, or terrorism.
8.4. As an essential part of the Agreement, the liquidated damages payable under an SLA shall be the credits stated in the applicable SLA, which are Customer’s sole and exclusive remedy for Secure Packet’s failure to meet those guarantees for which credits are provided; and the parties agree that the credits are not a penalty, are fair, and represent a reasonable estimate of loss that may be anticipated from any breach. The maximum credit(s) for failures to meet an applicable SLA will be limited to (i) the greater amount, when more than one SLA applies to the same occurrence, and (ii) for any calendar month, 100% of the then current monthly recurring Fee for the Services. Customer is not eligible to request a credit if Customer is in breach of the Agreement at the time of the occurrence of the event giving rise to the credit, until such time as Customer has remedied the breach. No credit shall be due if the credit would not have accrued but for Customer’s act or omission.
9. DISCLAIMERS.
9.1. Secure Packet and its Representatives disclaim all warranties and conditions which are not expressly stated in the Agreement to the maximum extent permitted by law (including implied warranties and conditions such as merchantability, satisfactory quality, fitness for a particular purpose, and non-infringement). Customer is solely responsible for determining the suitability of the Services. To the maximum extent permitted by law, Secure Packet disclaims all representations, warranties, conditions, and liability arising from: (i) acts or omissions of Customer and/or third parties; (ii) Open Source Software, Third Party Services, and Third Party Software (except that Secure Packet warrants its right to use or provide these items, as applicable); (iii) software provided by Customer; (iv) any actions taken by Secure Packet which are requested by Customer, and not based on the advice or recommendation of Secure Packet; and (vi) services provided at Customer’s request, but not required by the Agreement.
9.2. If Customer chooses to use Services that Secure Packet has expressly designated in writing as: (i) Unsupported Services, the Unsupported Services shall be provided without representation, warranty, condition, and liability (except that Secure Packet warrants that it shall use reasonable efforts expected of technicians having generalized knowledge and training in information technology systems to provide Unsupported Services); (ii) Test Services, the Test Services are subject to the Test Terms; or (iii) a Deprecated Service, those Services are subject to the EOL Terms.
9.3 Disclaimer of Warranties. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT, SECURE PACKET AND ITS THIRD-PARTY SUPPLIERS PROVIDE THE SERVICES AND ANY RELATED PRODUCTS ON AN “AS IS” BASIS AND NO WARRANTY IS EXTENDED TO YOU UNDER THIS AGREEMENT. YOU EXPRESSLY AGREE THAT USE, RESALE OR DISTRIBUTION OF THE SERVICES IS AT YOUR SOLE RISK. SECURE PACKET EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND WITH RESPECT TO THE AGREEMENT OR THE SERVICES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, ORAL OR WRITTEN, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY OR FITNESS FOR A GENERAL OR PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, ACCURACY OR WARRANTIES THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. YOU ACKNOWLEDGE THAT PORTIONS OF THE SERVICES ARE PROVIDED BY THIRD-PARTY SUPPLIERS WHOSE PERFORMANCE IS NOT WARRANTED OR GUARANTEED BY SECURE PACKET OR SUCH THIRD-PARTY SUPPLIERS UNDER THE AGREEMENT. NO ORAL OR WRITTEN ADVICE OR INFORMATION PROVIDED BY SECURE PACKET AND ITS AFFILIATES, THIRD-PARTY SUPPLIERS AND THEIR RESPECTIVE REPRESENTATIVES SHALL CREATE A WARRANTY, AND YOU SHALL NOT RELY ON ANY SUCH ADVICE OR INFORMATION. THIS DISCLAIMER OF WARRANTIES IS AN ESSENTIAL CONDITION OF THE AGREEMENT.
YOU SHALL NOT BE AUTHORIZED TO MAKE ANY WARRANTY, GUARANTEE, REPRESENTATION OR CONDITION, WHETHER WRITTEN OR ORAL, ON BEHALF OF SECURE PACKET OR ANY THIRD-PARTY SUPPLIER. YOU SHALL BE SOLELY RESPONSIBLE FOR ANY WARRANTIES FOR THE SERVICES PROVIDED BY YOU.
10. GOVERNING LAW & DISPUTES.
10.1. Governing Law. The governing law of the Agreement is Orange County in Florida, USA, exclusive of any choice of law principle that would require the application of the law of a different jurisdiction, and each party unconditionally and irrevocably submits to (i) the exclusive jurisdiction of the courts of Orange County, Florida, or (ii) binding arbitration.
10.2. Disputes. Where applicable, such as the State of Florida or USA and the federal laws of the USA, any dispute or claim relating to or arising out of the Agreement shall be submitted to binding arbitration. The arbitration shall be conducted in the state and county (or equivalent geographic location) of the non-asserting party’s principal business offices in accordance with the Commercial Rules of the AAA in effect at the time the dispute or claim arose. The arbitration shall be conducted by one arbitrator from AAA or a comparable arbitration service. The arbitrator shall issue a reasoned award with findings of fact and conclusions of law. Either party may bring an action in any court of competent jurisdiction to compel arbitration under the Agreement, or to enforce an arbitration award. Neither party nor an arbitrator may disclose the existence, content, or results of any arbitration under the Agreement without the prior written consent of both parties. Either party shall be permitted to appeal the final award under the AAA’s Optional Appellate Arbitration Rules in effect at the time the dispute or claim arose. Grounds for vacating the award shall include, in addition to those enumerated under the Federal Arbitration Act, 9 U.S.C. §1, et seq, that the arbitrator committed errors of law that are material and prejudicial. The appeal shall be determined upon the written documents submitted by the parties, with no oral argument. After the appellate rights described in this section 10.2 have been exercised or waived, the parties shall have no further right to challenge the award.
10.3.Enforcement. Notwithstanding any exclusive jurisdiction provision above, Customer agrees that Secure Packet may seek to enforce any judgment anywhere in the world where Customer may have assets. No claim may be brought as a class or collective action, nor may Customer assert such a claim as a member of a class or collective action that is brought by another claimant. Each party agrees that it shall not bring a claim under the Agreement more than two years after the time that the claim accrued. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. The prevailing party in any action or proceeding relating to the Agreement shall be entitled to recover reasonable legal fees and costs, including attorney’s fees.
11. GENERAL.
11.1. Relationship. The relationship between the parties is that of independent contractors and not business partners. Except as expressly stated in the Agreement, neither party is the agent for the other and neither party has the right to bind the other on any agreement with a third party. Secure Packet is not a party to and is not responsible for the performance of any TPS Agreements. Other than Representatives for the purposes of sections 7, 8, and 9, or as otherwise specifically designated a “Third Party Beneficiary”, there are no third party beneficiaries to the Agreement. Customer may permit Customer’s end users to use the Services, but Secure Packet shall provide support only to those individuals designated by Customer in the customer portal or customer authorization form and is not required to provide any support directly to Customer’s end users. Customer is liable for the acts and omissions of Customer’s end users.
11.2. Interpretation. The headings or captions in the Agreement are for convenience only. The use of the word “including” means “including without limitation”. If there is a conflict between the terms of the Agreement, the documents shall govern in the following order of precedence: the Service Order, the Product Terms, the MSA, and any other terms incorporated in the MSA. Unless otherwise expressly permitted in the Agreement, the terms of the Agreement may be varied only by a written agreement, signed by both parties, that expressly refers to the Agreement. A Service Order may be amended to modify, add, or remove Services by a formal written agreement signed by both parties, or by an exchange of correspondence (including via the Secure Packet ticketing system) that includes the express consent of an authorized individual for both parties. The pre-printed terms of Customer’s purchase order or other business form or terms that Customer provides shall be void and of no effect. Some terms are incorporated into the Agreement by reference to pages on the Secure Packet website and Secure Packet may revise those terms from time to time (including the MSA). Except where otherwise designated, such revisions are effective and supersede and form part of the Agreement as of the time: (i) Customer enters into a new Service Order referencing the revised terms; (ii) a Service Order automatically renews pursuant to the Agreement; or (iii) the parties enter into an agreement for a Renewal Term or account transfer (in which case Customer acknowledges that it has reviewed and accepted the then-current version of the terms). If over time Customer enters into multiple agreements for a given Customer Configuration (for example to add additional components or services) then the most recent terms referenced in the Service Order(s) shall govern the entirety of the Services for the given Customer Configuration.
11.3. Assignment & Subcontractors. Neither party may assign the Agreement or any Service Orders without the prior written consent of the other party, except to an Affiliate or successor as part of a corporate reorganization or a sale of some or all of its business, provided the assigning party notifies the other party of such change of control. Unless otherwise expressly authorized by Secure Packet in writing, Customer may not (i) sell, resell, lease, or provide the Services as a service, or (ii) assign, grant, or transfer any interest in Third Party Services or Third Party Software to another individual or entity. Secure Packet may use its Affiliates or subcontractors to perform all or any part of the Services, but Secure Packet remains responsible under the Agreement for work performed by its Affiliates and subcontractors to the same extent as if Secure Packet performed the Services itself.
11.4. Notices. Customer’s communications to Secure Packet regarding the Services should be sent to Customer’s account team using the customer portal or support email addresses; except that, Customer must send legal notices (including termination notices) by electronic mail to [email protected]; Secure Packet’s communications regarding the Services and legal notices shall be posted on the customer portal or sent by email or post to the individuals Customer designates as contacts on Customer’s account. Notices are deemed received as of the time posted or delivered, or if that time does not fall within a Business Day, as of the beginning of the first Business Day following the time posted or delivered. For purposes of counting days for notice periods, the Business Day on which the notice is deemed received counts as the first day. Notices shall be given in English.
11.5. Publicity. Customer agrees that Secure Packet may publicly disclose that it is providing Services to Customer and may use Customer’s name and logo to identify Customer in promotional materials, including press releases. Customer may not issue any press release or publicity regarding the Agreement, use the Secure Packet name or logo or other identifying indicia, or publicly disclose that it is using the Services without Secure Packet’s prior written consent.
11.6. Enforceability & Waiver. If any part of the Agreement is found unenforceable, the rest of the Agreement shall continue in effect, and the unenforceable part shall be reformed to the extent possible to make it enforceable and give business efficacy to the Agreement. The parties acknowledge and agree that the pricing and other terms in the Agreement reflect and are based upon the intended allocation of risk between the parties and form an essential part of the Agreement. Each party may enforce its respective rights under the Agreement even if it has waived the right or failed to enforce the same or other rights in the past.
11.7. Survival. The following provisions shall survive expiration or termination of this MSA: sections 5, 6, 7, 8, 9, 10, and 11; all terms of the Agreement requiring Customer to pay Fees (inclusive of any early termination fees); and any other provisions that by their nature are intended to survive expiration or termination of the Agreement.
11.8. Entire Agreement. The Agreement constitutes the complete and exclusive understanding between the parties regarding its subject matter and supersedes and replaces any prior or contemporaneous representation(s), agreement(s), or understanding(s), written or oral.
11.9 End of Life. You acknowledge and agree that Secure Packet may, at any time and for any reason, including to
address competitive demands, respond to a government regulation, order or law, or to advance innovation in its
Service offerings, terminate a particular Service or cease to provide, with respect to a particular Service, (i)
Technical Support, (ii) bug fixes, security fixes or other Updates or (iii) maintenance services (“End of Life”). For
any Service being planned for End of Life, Secure Packet will notify You at least sixty (60) days prior to the End of Life
effective date, and Secure Packet’s only liability in connection with the End of Life shall be to use commercially
reasonable efforts to assist You with appropriate planning and propose alternative services with substantially
equivalent functionalities.
12. Compliance Obligations
12.1. Applicable Law and Approvals. You agree to perform Your rights and obligations under the Agreement in compliance with Applicable Law and not attempt to cause a violation of Applicable Law. Without limiting the generality of the foregoing, You will maintain all licenses, permits, governmental approvals and other permissions of whatever nature required to: (i) enter into the Agreement; and (ii) perform Your obligations in accordance with the Agreement. You will ensure that by entering into the Agreement or performing any obligations hereunder, You are not breaching any Agreement to which You are a party violating any rights of any third parties arising from those agreements or any obligations pursuant to Applicable Law.
12.2. Anti-piracy. You must not engage in the manufacture, use, distribution or transfer of counterfeit, pirated or illegal software. You may not resell or distribute Services to any party that You know is engaged in these activities. You shall report to Secure Packet any suspected counterfeiting, piracy or other Intellectual Property Rights infringement of computer programs, manuals, marketing materials, or other materials owned by Secure Packet or Third-Party Suppliers (and/or their licensors) as soon as You become aware of it. You will cooperate with Secure Packet or Third-Party Suppliers in the investigation of any party suspected of these activities.
12.3. Compliance with Anti-Corruption Laws. You agree to conduct your business ethically and competently and further agreed to comply with all applicable anti-corruption and anti-bribery laws, including the U.S. Foreign Corrupt Practices Act, the Canadian Criminal Code and Corruption of Foreign Public Officials Act, in connection with the performance of Your obligations hereunder. In carrying out Your responsibilities under the Agreement, neither You nor any of Your representatives shall, directly or indirectly, offer or pay anything of value (including gifts, travel, entertainment expenses, and charitable donations) to any official or employee of any government, government agency, political party, public international organization, or any candidate for political office, to (i) improperly influence any act or decision of such official, employee or candidate for purposes of promoting the business interests of the other party in any respect or (ii) otherwise improperly promote the business interests of the other party in any respect.
12.4. Anti–Money Laundering. Neither You nor any of Your representatives shall use its relationship with Secure Packet to attempt to disguise the sources of illegally obtained funds.
12.5. No Retaliation. You shall not retaliate against anyone who has, in good faith, reported a possible violation of this section or refused to participate in activities that violate this section.
13. Audit and Non-Conformity
13.1. At any point during the Term and for a period of seven (7) years thereafter, Secure Packet and Third-Party Suppliers shall have the right to audit You (including Your premises, infrastructure and processes), at Secure Packet’s or Third-Party Suppliers’ expense, as applicable, in order to ensure that no breach of the Agreement has occurred, and You shall cooperate fully in any audit conducted by or on behalf of Secure Packet or its Third-Party Suppliers. You must keep books, records, documents, papers and other materials relating to the Services resold or distributed under any agreement with Secure Packet for minimum period of seven (7) years following the end of the Term. You shall establish and maintain a reasonable accounting system that enables Secure Packet and its audit-related agents to identify Your assets, expenses, expenditures, costs of goods, margins, discounts, rebates or other payments and compensation received, and use of funds related to the Agreement. You shall maintain a system of internal controls to prevent the payment of bribes and provide reasonable assurance that financial statements and reporting are accurate. You shall not have undisclosed or unrecorded accounts for any purpose. False, misleading, incomplete, inaccurate or artificial entries in the books and records are prohibited.
13.2. To verify compliance, Secure Packet or Third-Party Suppliers may, at their discretion, engage an independent accountant from an internationally recognized public accounting firm, which will be subject to a confidentiality obligation. Verification will take place upon not less than a thirty (30) day notice during normal business hours and in a manner that does not interfere unreasonably with Your operations. Secure Packet, Third-Party Suppliers, and their respective auditors will use the information obtained in any compliance verification only to enforce Secure Packet’s or Third-Party Suppliers’ rights and to determine whether You are in compliance with the terms of this Agreement.
13.3. If verification reveals that You, Your Customers, Sub-Resellers or Sub-Distributors, as the case may be, have breached any of the representations, warranties or covenants of the Agreement, or any Customer Agreement, as the case may be: (i) Secure Packet shall have the right to suspend or terminate the Agreement immediately upon written notice to You or require that You promptly remedy the situation, at Secure Packet’s sole discretion; (ii) You must use Your best efforts at Your own expense to assist and collaborate with Secure Packet and/or any Third-Party Supplier, as applicable, to investigate and enforce the terms of the Agreement or the Customer Agreement; (iii) You must reimburse Secure Packet or Third-Party Supplier, as applicable, for the costs Secure Packet or Third-Party Supplier have incurred in verification; and (iv) if material unlicensed use is found, You shall reimburse Secure Packet or Third-Party Suppliers, as applicable, for the costs Secure Packet or Third-Party Suppliers have incurred in conducting the audit and you shall acquire the necessary additional licenses within thirty (30) days at one hundred fifty percent (150%) of the then-current price list. Secure Packet will presume that such unreported use began upon commencement of each Customer relationship with You, unless You reasonably demonstrate a different scope and duration. In the event of a default by You under the terms of the Agreement, any Third-Party Supplier shall be entitled to enforce the provisions of the Agreement and to verify Your compliance with the terms of the Agreement. If You are an Entity that provides Services, including infrastructure services to other software service providers, Secure Packet or Third-Party Suppliers may, in an effort to verify compliance with this Agreement, conduct a reasonable inspection of all servers that contain Products or Services licensed under this Agreement, during regular business hours, and with at least ten (10) business days’ prior notice. You agree that You will remove all copies of Products or Services on Your servers at the termination of this Agreement.
13.4. By invoking the rights and procedures described above, neither Secure Packet nor any Third-Party Supplier waives its rights to enforce this agreement or to protect its Intellectual Property by any other means permitted by Applicable Law.
14. Confidentiality
14.1. Except as otherwise permitted by the Agreement or as mutually agreed in writing by the Parties, a Party receiving Confidential Information (the “Receiving Party”) shall maintain the confidentiality of all Confidential Information from the Party disclosing the Confidential Information (the “Disclosing Party”) and shall not release, disclose, divulge, sell or otherwise distribute any Confidential Information without the prior written consent of the Disclosing Party. The Receiving Party may only use the Disclosing Party’s Confidential Information as necessary to carry out the purposes of the Agreement and for no other purposes.
14.2. The Receiving Party will: (i) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) and shall not disclose or use any Confidential Information of the Disclosing Party for any purposes outside the scope of the Agreement; (ii) notify the Disclosing Party promptly upon discovery of any unauthorized use or disclosure of Confidential Information; and (iii) cooperate with the Disclosing Party to help regain control of the Confidential Information and prevent further unauthorized use or disclosure of it.
14.3. Notwithstanding the foregoing, the Receiving Party may disclose the Disclosing Party’s Confidential Information to its employees, directors, officers, employees, consultants, contractors, and agents (collectively the (“Representatives”) who are required to have the information in order to carry out the purposes of the Agreement, provided that it has ensured that such Representatives are required to protect the Confidential Information on written terms no less onerous than those of the Agreement and has accepted responsibility for each Representative’s use of Confidential Information. The Receiving Party is liable to the Disclosing Party of any use of Confidential Information by its Representatives.
14.4. You may disclose Confidential Information to the Customers solely to the extent necessary to carry out the purposes of the Agreement and provided that such Customers have entered into a Customer Agreement and are required to protect the Confidential Information on terms no less onerous than those of the Agreement.
14.5. The Receiving Party may disclose Confidential Information to the extent required by a court of competent jurisdiction or other governmental authority, or as otherwise required by Applicable Law. If the Receiving Party is required by Applicable Law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify the Disclosing Party of such requirements to afford the Disclosing Party the opportunity to seek, at the Disclosing Party’s sole cost and expense, a protective order or other remedy.
14.6. You acknowledge and agree that any Feedback shall not constitute Confidential Information for the purpose of the Agreement and may be used by Secure Packet or its Third-Party Suppliers without obligation of any kind, except for the obligation not to disclose the source. Secure Packet will have a royalty-free, worldwide, transferable, sublicensable, irrevocable, and perpetual license to use or incorporate into the Services any such Feedback.
14.7. The Parties acknowledge and agree that any breach of the terms of this Section 14 will cause irreparable harm and damage to the aggrieved Party. The Parties further agree that each Party shall be entitled to injunctive relief to prevent breaches of this Section 14 and to specifically enforce the terms and provisions of this Section 14, in addition to any other remedy to which such Party may be entitled, at law or in equity.
14.8. Secure Packet will not use Your Confidential Information to solicit a direct or indirect relationship with Your Customers regarding the Services, but this restriction shall not prevent Secure Packet from contacting or soliciting those Customers (a) with whom Secure Packet already has a direct relationship; (b) who initiate contact with Secure Packet; (c) without use of Your Confidential Information; or (d) as otherwise expressly permitted under this Agreement. Notwithstanding the foregoing, Secure Packet shall have the right to use Your Confidential Information to solicit Customers during or after the Term of the Agreement if You become unreachable or if Secure Packet terminates the Agreement pursuant to Section 7.3 or 7.4. In such latter case, Secure Packet will be entitled to contact Your Customers to transition Your Customers directly to Secure Packet or another partner, and You will work collaboratively with Secure Packet to effect a smooth transition of Your Customers, including through the provision of a full accounting of all existing, pending and prospective Customers.
SCHEDULE 1 DEFINED TERMS
“AAA” means the American Arbitration Association.
“Affiliate” as to Customer means any entity that directly or indirectly controls, is controlled by, or is under common control with the entity referred to, but only for so long as such control exists; and as to Secure Packet means Secure Packet, Inc. and any entity that is directly or indirectly controlled by Secure Packet, Inc. As used in this definition “control” means control of more than a 50% interest in an entity.
“Agreement” means, collectively, the MSA and any terms incorporated by reference in the MSA, and any applicable Service Order, Product Terms, or other addenda which govern the provision of Services.
“AUP” means Secure Packet’s Acceptable Use Policy (presently found at the following URL: https://securepacket.co/about/acceptable-use-policy/) as periodically updated by Secure Packet.
“Auto Renewal Term” means the automatic renewal period following expiry of the Initial Term, for consecutive rolling terms that equal the Initial Term time frame.
“Business Day” means Monday through Friday, excluding public holidays in the country whose laws govern the Agreement.
“Confidential Information” means non-public information disclosed by one party to the other in any form that: (i) is designated as “Confidential”; (ii) a reasonable person knows or reasonably should understand to be confidential; or (iii) includes either party’s products, customers, marketing and promotions, know-how, or the negotiated terms of the Agreement; and which is not independently developed by the other party without reference to the other’s Confidential Information or otherwise known to the other party on a non-confidential basis prior to disclosure.
“Customer”, “Client”, or “you” means the entity ordering the Services.
“Customer Configuration” means an information technology system (hardware, software, and/or other information technology components) which is the subject of the Services or to which the Services relate.
“Customer Data” or “Client Content” means all data which Customer receives, stores, or transmits on or using the Customer Configuration.
“Customer IP” means Customer’s pre-existing Intellectual Property.
“Deliverables” means the tangible or intangible materials, specifically identified and described in a Service Order as Deliverables, which Secure Packet delivers to Customer as a result of any professional Services.
“Deprecated Service” means a Secure Packet-provided product or Service, or any element thereof, which is identified as “End of Sale”, “End of Support”, or “End of Life”.
“EOL Terms” means the End of Life Terms as periodically updated by Secure Packet.
“Fees” means the fees payable under the applicable Service Order.
“Feedback” means any request, suggestion, and/or input from Customer to Secure Packet on how Secure Packet can improve Secure Packet’s services
“Hosted System” means a Customer Configuration provided by Secure Packet for Customer’s use at a Secure Packet data center.
“Initial Term” means the initial term of the applicable Service Order.
“Intellectual Property” means patents, copyrights, trademarks, trade secrets, and any other proprietary intellectual property rights.
“Local Withholding Taxes” means withholding (or similar) taxes imposed on income that may be attributable to Secure Packet in connection with its provision of the Services that Customer is legally required to withhold and remit to the applicable governmental or taxing authority.
“MSA” or “GSA” means this Master Services Agreement.
“One Time Services” means Services which are provided on a one-off basis.
“Open Source Software” means open source software including Linux, OpenStack, and software licensed under the Apache, GPL, MIT, or other open source licenses.
“Product Terms” or “Service Schedule(s)” means additional terms and conditions incorporated in a Service Order which contain product-specific obligations.
“Secure Packet” or “we” means the Secure Packet Affiliate identified in the Service Order, or if none is identified: (i) Secure Packet, Inc.
“Secure Packet Configuration Requirements” means those specifications identified by Secure Packet as required to perform the Services, such as a required reference architecture or software version, as described in Customer’s Service Order or Product Terms.
“Secure Packet IP” means Secure Packet’s Intellectual Property, not otherwise generally licensed to the public under an Open Source Software license.
“Recurring Services” means Services which are provided on an on-going basis.
“Renewal Term” means a fixed term extension of the Service Order term.
“Representatives” means a party’s respective service providers, officers, directors, employees, contractors, Affiliates, suppliers, and agents.
“Sensitive Data” means any: (i) personally identifiable information or information that is referred to as personal data (including sensitive personal data), PII, or other like term under applicable data protection or privacy law and includes information that by itself or combined with other information can be used to identify a person; (ii) financial records; and (iii) other sensitive or regulated information.
“Services” means the Secure Packet services identified in a specific Service Order.
“Service Order” or “Order Form” or “Statement of Work” means the document describing the Services Customer is purchasing, including any online order, process, API, statement of work, or tool through which Customer requests or provisions Services.
“SLA” means any provision providing a specified credit remedy for an identified failure to deliver or provide the Services to the identified standard.
“Tax” means any value added, goods and services, sales, use, property, excise, and like taxes, import duties and/or applicable levies arising out of the provision of the Services.
“Test Services” means those Services designed by Secure Packet as “Test”, “Beta”, “early access”, or with like designation in a Service Order.
“Test Terms” means the Test Terms as periodically updated by Secure Packet.
“Third Party Fee Increase” means the direct or indirect increase of fees by a third party vendor charged to Secure Packet for Customer’s use of Third Party Services, Third Party Software, or both, which may occur at any time.
“Third Party Services” means services provided by a third party and used in connection with the Services.
“Third Party Software” means software provided by a third party and used in connection with the Services.
“TPS Agreements” means agreements for products and services provided by third parties, which are entered into directly between Customer and such third party.
“Unsupported Services” means Services designated by Secure Packet as “best efforts”, “non- standard”, “reasonable endeavors”, “unsupported”, or with like designation in a Service Order.