Effective June 16, 2022
Please read the Terms of Service below (our “Terms”, “Terms of Service” or “TOS”) carefully as they contain the legal terms and conditions that govern your access and use of the Service or Professional Services provided by Netlok, LLC (“Netlok”). The term “Customer” means the individual or entity that registers for or uses the Service or Professional Services.
When you indicate agreement to the Agreement (defined below), you represent and warrant that you are authorized to execute, deliver, and bind Customer to the Agreement, and to act as Customer’s agent in connection with the Agreement. The “Effective Date” of the Agreement is the earlier of the date you (a) begin using the Service, or (b) complete an Order.
Netlok has developed, and updates from time to time, “Photolok®, a web-based application that provides a multi-factor access login and password replacement system that uses photos instead of passwords as a service that assists customers in the management, monitoring, and security of customers’ users and device infrastructure (the “Service”). Netlok makes the Service available to customers through integrations or applications it publishes on on-line marketplaces operated by Channel Partners and/or direct sales by Netlok. By ordering, installing or enabling the Service through Integrations on marketplaces, you agree to accept these Terms and are bound thereby. You are required to have a separate paid subscription from Netlok in order to use the Service. See Section 3.1 below
The “Agreement” includes the Terms, together with these preamble paragraphs, all Orders, addenda, and referenced attachments. This Agreement constitutes the terms and conditions under which Netlok is willing to provide Customer with the Service and Professional Services and will take precedence over any conflicting or inconsistent text included in other materials (e.g., promotional materials) on the Site or provided to or by Customer. Except to the extent expressly provided in an Order, the Terms will take precedence over any conflicting or inconsistent terms and conditions accompanying any Order. Any standard terms, invoicing documents, or purchase order terms provided by Customer are expressly rejected.
Netlok may modify the Terms at any time by posting updated versions of the Terms on the Site. Such modifications become effective and binding on Customer upon the earlier of (i) any Customer access to or use of the Service after the date they are posted or (ii) thirty (30) days after the modifications are posted. Any continued Customer access to or use of the Service after the modifications have become effective will be deemed conclusive acceptance of the updated Terms.
1. DEFINITIONS. Capitalized terms have the meanings in this Section 1 (Definitions), or in the Section where they are first used.
“Administrator” means a person who signs up for the Service on behalf of Customer or is authorized by Customer via the Service, and that administers the Service on Customer’s behalf.
“Channel Partner” has the meaning given in Section 2.11.
“Customer Data” means all information, data, files, links, and other materials submitted to or collected by the Service, including information regarding information technology infrastructure provided to Netlok under this Agreement. Customer Data excludes Usage Data.
“Device” (or “System”) means any device (e.g., computer, server, laptop, tablet, or mobile device) that is part of Customer’s systems and/or network, or that accesses, is managed or tracked by, or is authorized to access, the Service.
“Documentation” means the documentation provided or made available by Netlok to Customer describing use and operation of the Service.
“Integrations” has the meaning given in the preamble.
“Order” means any installation, trial, download or enablement of the Services, either pursuant to a Netlok-provided quote that has been timely executed by Customer, a Customer ordering document (excluding any standard or “form” terms therein) that has been signed by both parties, and/or the Service details specified in the self-service ordering process on the Site, or by your ordering the Service on an online marketplace.
“Professional Services” means the consulting, implementation, technical account management, migration, or other professional services performed by Netlok personnel pursuant to an Order.
“Site” means the Netlok website, mobile devices, mobile application(s), and/or Service dashboards.
“Usage Data” means all data collected or generated by Netlok in connection with use of the Service or with Professional Services (including information related to Devices, Users’ use of the Service, network monitoring, and analysis.) Usage Data does not include public keys, usernames, or User passwords, which are part of Customer Data.
“User” means each Customer employee or contractor, or other individual or entity that accesses the Service or is added to the Service by Customer (including any Administrator and any individual or entity for which an email address or other identifier has been added to the Service, even if suspended or not activated for, or active in, any features of the Service.) Any access or use of the Service by any User is considered use or access by Customer.
2.1 Service. Subject to this Agreement, Netlok will provide Customer the components of the Service that are specifically described in an Order.
2.2 Access; Limited License. Subject to this Agreement, Netlok grants Customer, during the Term, a non-exclusive, limited, non-sublicensable, and non-transferable (except to the extent expressly permitted under Section 11.6 (Assignment)) license to: (a) access and use the Service to the extent identified in an Order and as permitted in the Terms; and (b) use and reproduce the Documentation solely in connection with Customer’s use of the Service; No implied license or right of any kind, and no patent license or right, is granted to Customer under this Agreement.
2.3 Support and SLA. Subject to the payment by Customer of fees applicable to the level of support specified in the applicable Order (“Selected Support Tier”), Netlok will provide Customer with the support services for the Selected Support Tier as defined in the Order. Such Selected Support Tier description includes any service level commitments for the Service (e.g., support methods and targeted response times), and is hereby incorporated into this Agreement for the duration of Customer’s payment of fees corresponding to such Selected Support Tier.
2.5 Usage Data. Customer acknowledges and agrees that provision of the Service involves, and Customer authorizes, Netlok’s: (a) collection of Usage Data in connection with providing the Service; (b) use of Usage Data in connection with providing, analyzing, and improving Netlok products and services; and (c) generation and use of de-identified, aggregated, and/or anonymized data that does not include any identifying information of, or reasonably permit the identification of, Customer or any individual (including any User). Netlok will comply with applicable statutory requirements with respect to the data generated pursuant to this Section 2.6 (Usage Data).
2.6 Third-Party Software. The Service may enable Customer to download or install third-party software on Devices (e.g., software updates). All risks related to such third-party software are entirely the responsibility of Customer. Netlok has the right (but not the obligation) to vet, review, evaluate, or scan such third-party software.
2.7 Third-Party Authentication and Integrations. The Service may enable Customer to integrate the Service with other third-party authentication services (each, a “Third-Party Integration”). Customer acknowledges and agrees that: (1) Customer authorizes Netlok to disclose Customer Data to the third party associated with any Third-Party Integration that Customer enables; (3) Netlok will not be responsible or liable, directly or indirectly, for the security of any third-party authentication service with respect to the third party’s implementation of the Third-Party Integration or the security of the underlying protocols used for the same, or for any damage or loss caused by or in connection with the use of or reliance on any third party authentication service; (4) each applicable provider of third-party authentication services is a separate data controller with respect to such provider’s processing of Customer Data; (5) any use of any third-party authentication service is subject to such provider’s terms and privacy practices and Netlok does not control the processing of Customer Data by any such provider; and (6) if any User enables, integrates, accesses, or otherwise uses any third-party authentication services in connection with such User’s use of the Service, any such use is governed solely by the terms, conditions, and policies of such third-party authentication services. ANY USE OF THIRD-PARTY AUTHENTICATION SERVICES IS DONE AT CUSTOMER’S SOLE RISK. NETLOK IS NOT RESPONSIBLE FOR AND EXPRESSLY DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO ANY THIRD-PARTY AUTHENTICATION SERVICES OR THE SECURITY THEREOF.
2.8 Beta Features. Netlok may make certain pre-release, beta, or evaluation features or functionality available to Customer as part of the Service (“Beta Features”) for Customer to evaluate. Customer’s use of any Beta Features is subject to any additional or different terms that Netlok may specify. Netlok: (a) may terminate access to Beta Features at any time (notwithstanding any announced or expected availability (e.g., trial, evaluation, or beta period)); (b) may or may not make a Beta Feature available as a generally-available feature of the Service, and/or (c) may make available as part of the Service or as an Add-On (as defined in Section 3.1 (Fees; Payments)), a generally-available feature of the Service that is the same or similar to a Beta Feature. Except as otherwise set forth in this Section 2.10 (Beta Features), these Terms apply to Beta Features. Customer acknowledges that Beta Features are under development, may be inoperable or incomplete, and are likely to contain errors and bugs. Netlok may, when announcing a Beta Feature, charge a fee for a Beta Feature. All information regarding the existence, characteristics, features, or performance of any Beta Feature constitutes Netlok’s Confidential Information. To the maximum extent permitted by applicable law, Netlok disclaims all obligations or liabilities with respect to Beta Features. NOTWITHSTANDING ANYTHING ELSE IN THESE TERMS, NETLOK’S MAXIMUM AGGREGATE LIABILITY TO CUSTOMER WITH RESPECT TO BETA FEATURES WILL IN NO CASE EXCEED US$100.
2.9 Sales Channel Partners. If Customer has ordered the Service from an authorized Netlok channel partner (such as an on-line marketplace, a reseller or managed service provider) (“Channel Partner”), Netlok may delegate or novate any of its obligations under this Agreement to such Channel Partner (e.g., support services and payment collection), and Netlok will not have any obligation to provide such delegated or novated services to Customer (because the Channel Partner will have such obligation directly to Customer). Any nonpayment of applicable Service Fees (by Customer or such Channel Partner) to Netlok will be a material breach of this Agreement. You acknowledge and agree that Netlok has the right to enforce the Terms of Service of any Channel Partner, including any Mandatory Service Terms included in such Terms of Service, against you. Channel Partners are not, however, parties to this Agreement.
2.10 Professional Services. To the extent that an Order includes Professional Services, this Section 2.10 (Professional Services) applies. Netlok will provide the Professional Services in a workmanlike manner consistent with generally accepted industry standards. Customer must notify Netlok of any breach of Netlok’s obligations regarding Professional Services within thirty (30) days from the performance of the relevant Professional Services. Customer’s sole and exclusive remedy and the entire liability of Netlok for its breach of such obligations will be for Netlok, at its expense and discretion, to (a) use commercially reasonable efforts to reperform or repair the non-conforming Professional Services, or (b) if Netlok is unable to reperform or repair the Professional Services, refund the portion of the Professional Services Fees paid attributable to the non-conforming Professional Services. Customer acknowledges that Netlok’s ability to perform the Professional Services is dependent and conditioned upon Customer’s provision of timely and accurate information, access to resources, and Customer’s cooperation.
3. FEES; PAYMENTS.
3.1 Fees. Customer will pay Netlok all fees identified on the applicable Order and/or described in this Agreement or on the Site (including all support fees and fees for Add-Ons) (the “Service Fees”, and for Professional Services, “Professional Services Fees”) in accordance with the applicable Order and this Section 3 (Fees; Payments). All fees will be paid in U.S. Dollars. Customer will make all payments of the Service Fees and Professional Services Fees to Netlok without reduction for any fees or charges applicable to Customer’s method of payment (e.g., wire fees). Netlok may charge Customer (and Customer will pay Netlok) for the amount of any such fees to the extent Customer’s payment is made net of any such fees. Netlok may offer additional features or functionality relating to the Service that are not included in the Service subscription purchased by Customer pursuant to an Order (“Add-Ons”) for the additional fees described on the Site. Customer acknowledges that Netlok may, after informing Customer of its use of Add-Ons, charge Customer such additional fees for Customer’s use of Add-Ons. To the extent any Add-Ons are otherwise eligible for any packaged or bundled pricing discounts, such discounts will not apply to unauthorized access or use of such Add-Ons by Customer. Notwithstanding the foregoing, Netlok may permit Customer to use Add-Ons on a trial basis, without the payment of any additional fees, for up to 30 days or as otherwise agreed in writing by Netlok.
3.2 Monthly Subscriptions. Except for free subscription periods, if any, and except as may be otherwise provided in an Order, Service Fees for all monthly subscriptions will be paid by Customer in advance on or before the date and time Services commence (“Monthly Service Fees”) and Netlok will charge full Monthly Service Fees for every full or partial month that the Service is used.
3.3 Payment Card Authorization. Unless otherwise stated in the applicable Order, Netlok will charge (and Customer hereby authorizes Netlok to charge) Customer’s provided payment card, as of the date the invoice is generated, for (a) all Monthly Service Fees, (b) all fees for any billing frequency specified in the applicable Order, (c) all Service Fees for the Committed Quantities applicable as of the date the applicable invoice is generated, (d) all fees for any applicable Renewal Order Term (as defined in Section 6.2 (Order Renewal)), at the time of such renewal, and (e) the amount of any past due fees, plus late charges, if any, due to Netlok under this Agreement. If any fees are less than $1,000, a payment card is required unless otherwise agreed in writing by Netlok. Netlok’s payment card processor will retain Customer’s payment card information for purposes of this Section 3.3 (Payment Card Authorization).
3.4 Payment Terms and Taxes. All fees are due to Netlok within five (5) business days after the date of the applicable invoice (except as provided in Section 3.3 (Payment Card Authorization) or as otherwise agreed by the parties in the Order). Claims for adjustment of any invoiced or charged fees must be submitted in good faith by Customer before payment is due. Claims must be submitted by Customer electronically to Netlok at billing@Netlok.com. If any amounts are disputed in good faith, Customer will pay the undisputed amounts when due and payment of such undisputed amounts may not be withheld for any reason. Undisputed amounts that are not paid when due may accrue a late fee of one and one-half percent per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. Customer will reimburse Netlok for all costs (including reasonable attorney and collection agency fees) associated with collecting delinquent or dishonored payments. All fees exclude, and Customer will be responsible for, all sales, use, excise, and other taxes applicable to the transactions contemplated by this Agreement, except for U.S. taxes based on Netlok’s net income. If Customer is legally obligated to make any deduction or withholding from any fees due under this Agreement, it will also pay whatever additional amount is necessary to ensure that Netlok receives the full amount otherwise receivable had there been no deduction or withholding obligation. All fees due under this Agreement are non-refundable, except as expressly provided in Section 6.5 (Effect of Termination) and Section 9 (Indemnity).
3.5 User Accounts. To access the Services, Users will be required to open a Netlok account or a specifically branded Netlok account such as Photolok (an “Account”). Such Account will be a “Restricted, Private, and/or Closed” Account created by User to be used in conjunction with the Services (a “Company”, and a “Company Account”).
4. CUSTOMER RESPONSIBILITIES.
4.1 Limitations. Customer agrees that Customer will not: (a) interfere with, disrupt, create an undue burden on, alter, translate, or modify the Service or Professional Services, or the networks, systems, or services connected to the Service (through scripts or otherwise); (b) perform penetration tests or any other security tests on the Service, (c) introduce software or automated agents or scripts to the Service so as to produce multiple accounts or use or access the Service or Professional Services in any way that is not expressly authorized in the applicable Documentation or by Netlok without Netlok’s express and prior written permission; (d) create derivative works of the Service, or reverse engineer, reverse compile, reverse assemble, or do anything else with any aspect of the Service that would reveal any source code, trade secrets, know-how or other proprietary information; (e) access the Service in order to build a competitive product or service; (f) infringe any Netlok intellectual property rights; (g) permit any third party to access and/or use the Service, other than the Users authorized under this Agreement; (h) except as expressly permitted in an Order, rent, lease, loan, or sell access to the Service to any third party, or use the Service on behalf of any third party (except to the extent the third party is a contractor of Customer and authorized by Customer as a User); (i) perform or publish any performance or benchmark tests or analyses relating to the Service or the use thereof; (j) exercise any rights in excess of those granted in Section 2 (Service); or (k) access or use the Service or any feature thereof in excess of any restriction or limitation described in this Agreement, any Documentation, or an Order.
4.2 Availability. Customer is responsible for obtaining all services and technologies necessary to access to the Service and receive Professional Services and Customer understands that such access may involve third-party fees and costs (such as Internet service provider or airtime charges). Customer is responsible for all such fees and costs.
4.3 Usernames and Passwords. Customer is responsible for maintaining the confidentiality of all Customer usernames and passwords. Customer agrees (a) not to allow a third party to use its account, usernames, or passwords at any time, except as expressly permitted under this Agreement, and (b) to notify Netlok promptly of any actual or reasonably suspected unauthorized use of or access to its account, usernames, or passwords, or any other breach or suspected breach of this Agreement of which it becomes aware.
4.4 Users; Sub-Accounts. Customer is responsible for all acts and omissions of its Users, and for all activities that occur under Customer’s account, including all sub-accounts created by or for Customer.
4.5 Administrators. Customer authorizes Netlok to rely upon communications from any Administrator with respect to the Service, including instructions to delete and/or add Users, Devices, and/or accounts as contemplated under Section 4.4 (Users; Sub-Accounts). Netlok may disclose Customer Data and Usage Data to any Administrator. Without limiting the foregoing, if Customer provides its unique Customer identification information for the Service to an Administrator, that will be considered conclusive proof that such Administrator has authority to act on Customer’s behalf with respect to the Service without further notice from Customer. Netlok has the right (but not the obligation) to confirm any instructions received from an Administrator through Netlok’s internal processes and/or with Customer, including employees of Customer who have administration rights for the Service, prior to taking action based on instructions from an Administrator. Netlok will have no liability to Customer or any other person for any actions Netlok takes in reliance on any communication that reasonably appears to be from an Administrator. Each Administrator represents and warrants that they have the requisite authorization from Customer to enable Netlok to rely upon communications from the Administrator with respect to the Service and Customer.
4.6 Certifications. Netlok may offer from time to time certain online training courses that Administrators can choose to complete to earn Netlok certifications. Separate terms apply to the training courses, the certification process, and certifications. Certifications are not an endorsement of the Administrator by Netlok, and a certification does not represent that the Administrator is performing services on behalf of Netlok.
4.7 Authority. Customer represents and warrants that it has the authority and right to (a) disclose to Netlok, and to permit Netlok to collect and process, Customer Data and Usage Data in connection with, and in accordance with, this Agreement, and (b) take any and all actions that it takes in using the Service or Professional Services, and (c) provide Netlok access to Customer’s systems to perform Professional Services, including (i) actions performed on or in connection with any Device owned or controlled by any User from which the Service may be accessed, and (ii) installing or using any third-party software.
5. DISCLAIMER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NETLOK AND ITS CHANNEL PARTNERS, SUPPLIERS AND LICENSORS DO NOT MAKE ANY, AND EXPRESSLY DISCLAIM ALL, REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, WHETHER ORAL OR WRITTEN, INCLUDING ANY AND ALL REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, CONTINUOUS OR ERROR-FREE OPERATION, QUALITY OF SERVICE, QUIET ENJOYMENT, OR DEVICE INTEGRATION, IN EACH CASE ARISING FROM OR RELATED TO THIS AGREEMENT, THE SERVICE, OR PROFESSIONAL SERVICES. WE CANNOT ENSURE THAT ANY FILES OR OTHER DATA YOU DOWNLOAD FROM OR THROUGH THE SERVICE WILL BE FREE OF VIRUSES, CONTAMINATION OR DESTRUCTIVE FEATURES.
6. TERM, TERMINATION, AND SUSPENSION.
6.1 Term. Unless otherwise expressly provided in the applicable Order, this Agreement will commence on the Effective Date and will continue until the earlier of the date (a) this Agreement is terminated as provided in this Agreement, and (b) all Orders entered into under this Agreement expire or are terminated as provided in this Agreement and in each such Order (“Term”).
6.2 Order Renewal. Following the initial term under any Order (the “Initial Order Term”), except as otherwise provided in the Order, such Order will automatically renew for additional periods equal to the duration of the Initial Order Term (each, a “Renewal Order Term” and each Renewal Order Term and/or Initial Order Term, an “Order Term”), unless a party has given the other party written notice of its intent to not renew such Order at least 60 days prior to the end of the then-current Order Term. Netlok may increase Service Fees by informing Customer of the same, and such increased Service Fees will not apply until the first Renewal Order Term that starts at least 60 days after such notice. Though Customer may renew an Order for a longer duration than the then-current Order Term (e.g., a monthly subscription may be renewed as an annual subscription), Customer may not renew any Order for a lesser duration than the then-current Order Term (e.g., an annual subscription may not be renewed as a monthly subscription) unless Netlok and Customer enter into a new Order for a shorter Order Term.
6.3 Termination. Except as otherwise provided for in this Agreement, either party may terminate this Agreement upon the material breach of the other party if such breach remains uncured for 30 days (ten (10) days for payment obligations) following the breaching party’s receipt of written notice of the breach.
6.4 Suspension. If (a) Customer fails to make payment for any applicable fees due under this Agreement and does not cure the same within 10 days after receiving notice thereof, (b) Customer breaches any restriction or exceeds any limitation described in this Agreement and does not cure the same within ten (10) days after receiving notice thereof, (c) Customer breaches any of subsections “(a)”-“(c)” of Section 4.1 (Limitations), or (d) there is a threat to the security or technical integrity of the Service or a User account, Netlok has the right to suspend or limit Customer’s (or any User accounts’) access to the Service, until such time as Netlok reasonably determines that Customer is in compliance with the terms of this Agreement or that such threat has been addressed.
6.5 Effect of Termination.
(a) Upon any termination or expiration of this Agreement: (i) Customer will promptly pay Netlok all amounts owed under this Agreement without regard to whether any invoices had been previously issued; (ii) all outstanding Orders will automatically terminate; and (iii) Customer’s license and access to the Service will automatically terminate. If the Agreement is terminated pursuant to Section 6.3 (Termination), the sums paid or refunded will not limit a party’s liability under this Agreement. Notwithstanding the foregoing, termination or expiration of an Order or any aspect of an Order will not, in itself, impact the effectiveness of any other aspect of such Order or other Orders.
(b) Customer may access Customer Data up to the effective date of termination or expiration, and following any termination or expiration of this Agreement, Customer may request deletion of Customer Data by emailing Netlok and Netlok will delete Customer Data following its receipt of such request. Proper authentication, including Customer’s unique customer identification information, will be required prior to deletion of Customer Data. Following any termination or expiration of this Agreement, Netlok shall have the right to delete Customer Data (including Customer’s Account) 30 days after termination or expiration of the Agreement.
(c) In the event Customer terminates this Agreement pursuant to Section 6.3 (Termination), Netlok will refund Customer, on a pro-rated basis, the amount of unearned Service Fees, if any such Service Fees have been paid in advance by Customer. Customer will not have any rights in or to the Service after any termination or expiration of this Agreement. The remedies described in this Section 6.5 are not exclusive. Sections 1 (Definitions), 2.6 (Usage Data) (excluding subpart “(a)”), 2.9 (Third-Party Authentication and Integrations), 2.12 (Professional Services), 3 (Fees; Payments), 4.1 (Limitations), 5 (Disclaimer), 6.5 (Effect of Termination), and 7 (Ownership) through 11 (General Provisions) will survive any termination or expiration of this Agreement.
7.1 Ownership of Services. As between Netlok and Customer, Netlok owns all right, title, and interest in and to the Service, Documentation, and Professional Services, including all intellectual property and other proprietary rights in each of the foregoing. Customer acknowledges and agrees that (a) it does not acquire any rights, express or implied, in or to the Service or Professional Services, except as specifically provided in this Agreement, and (b) any configuration or deployment of the Service or Professional Services will not affect or diminish Netlok’s rights, title, and interest in and to the Service or Professional Services, as applicable. All brand, product, and service names and marks used in the Service which identify Netlok are proprietary names and marks of Netlok. All brand, product, and service names and marks used in the Service which identify third parties or their products or services are proprietary names and marks of such third parties. Nothing in the Service will be deemed to confer on any Customer or any third party any license or right with respect to any such name or mark. Customer may not publish, distribute, extract, reuse, or reproduce any content from the Site, Service, or Professional Services in any form other than in accordance with this Agreement. Customer will not remove, alter, or obscure any proprietary notices (including copyright notices) of Netlok or its suppliers in the Service or Documentation.
7.2 Ownership of Customer Data. As between Netlok and Customer, Customer Data will at all times remain the property of Customer or its licensors. Netlok will have no rights in Customer Data other than the limited right to use such Customer Data as required for Netlok to perform the Service or Professional Services for Customer in accordance with this Agreement.
7.3 License to Feedback. “Feedback” means all Customer or User suggestions regarding new features, functionality, or performance for the Service or Professional Services, including suggestions submitted through the Site. Customer hereby grants to Netlok a royalty-free, worldwide, transferable, sublicensable, irrevocable, and perpetual license to use such Feedback for any lawful purpose, including the development or improvement of features or functionality for the Service or Professional Services. Netlok will not identify Customer as the source of any such Feedback.
8. CONFIDENTIAL INFORMATION.
8.1 Definition. “Confidential Information” means all information of the Disclosing Party (as defined below) disclosed to the Receiving Party (as defined below) that is marked or identified as confidential or disclosed in circumstances that would lead a reasonable person to believe such information is confidential. All information regarding the Service and Professional Services will be considered Netlok’s Confidential Information, notwithstanding any failure to mark or identify it as such. Protections for Customer Data are provided for in Section 2.5 (Data Processing) and not in this Section 8 (Confidential Information). The commercial and non-public terms of the Agreement are Confidential Information of the parties, but the relationship of the parties created by this Agreement is not Confidential Information. Notwithstanding the foregoing, each Receiving Party may disclose the Disclosing Party’s Confidential Information: (a) to consultants, accountants, banks, investors, and actual or potential financing sources and their advisors; (b) in connection with a merger or acquisition or proposed merger or acquisition, or the like; and/or (c) in connection with the requirements of a securities filing. Customer’s Confidential Information and Customer Data exclude any Customer business and support contact information provided to Netlok, which may be used by Netlok for its business purposes (e.g., for managing Netlok’s relationship with Customer). Customer will provide Netlok accurate and current contact information for invoices and related communications.
8.2 Protection. The party receiving Confidential Information (“Receiving Party”) from the other party (“Disclosing Party”) will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees, independent contractors, or agents of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duties under this Agreement. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
8.3 Exceptions. Confidential Information does not include information that: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public (including any information made available on the Site that is not protected by confidentiality obligations); or (d) is independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party may disclose Confidential Information of the Disclosing Party to the extent that such disclosure is: (i) approved in writing by the Disclosing Party; (ii) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by law or by the order of a court or similar judicial or administrative body, provided that (if permitted by law) the Receiving Party promptly notifies the Disclosing Party of such required disclosure in writing prior to making such disclosure and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure. Notwithstanding the foregoing, Netlok may use Customer’s name and logo in Netlok’s marketing materials that include a customer list.
8.4 Return or Destruction of Confidential Information. Upon termination or expiration of this Agreement, or upon written request of the Disclosing Party, the Receiving Party immediately will return or destroy any and all materials containing any Confidential Information (including information stored on computer hard drive or cloud application or otherwise and all copies, reproductions, and summaries thereof, no matter by whom prepared, but excluding Usage Data) and certify the return or destruction in accordance with the Disclosing Party’s request.
8.5 Equitable Relief. Breach of this Section 8 (Confidential Information) could cause irreparable harm and damage to the Disclosing Party. Thus, in addition to all other remedies available at law or in equity, the Disclosing Party shall have the right to seek equitable and injunctive relief, and to recover the amount of damages (including reasonable attorneys’ fees and expenses) incurred in connection with such unauthorized use or disclosure.
9. INDEMNITY. Netlok will defend, at its own expense, any third-party claim, suit, or action against Customer to the extent that such claim, suit, or action is based upon an allegation that the Service or Professional Services infringe any U.S. intellectual property rights of such third party (“Customer Claim”), and Netlok will indemnify and hold Customer harmless from and against all losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) awarded in such Customer Claim or those costs and damages agreed to in a monetary settlement of such Customer Claim. The foregoing obligations are conditioned on Customer: (a) promptly notifying Netlok in writing of such Customer Claim; (b) giving Netlok sole control of the defense thereof and any related settlement negotiations, (provided that Netlok will not enter into any settlement of any such claim, suit, or action that does not contain a full release of Customer’s liability without Customer’s prior written approval, which approval will not be unreasonably withheld, conditioned, or delayed); and (c) cooperating and, at Netlok’s request and expense, assisting in such defense. Notwithstanding the foregoing, Netlok will have no obligation under this Section 9 (Indemnity) or otherwise with respect to any claim based upon: (i) any use of the Service or Professional Services not in accordance with this Agreement; (ii) any use of the Service or Professional Services in combination with products, equipment, software, or data not supplied by Netlok if such infringement would have been avoided without the combination with such other products, equipment, software, or data; or (iii) any modification to any part of the Service or Professional Services by any person other than Netlok or its authorized agents or subcontractors. If use of the Service or Professional Services is, or in Netlok’s opinion is likely to become, enjoined, or if use of the Service or Professional Services infringes or could be found to infringe the intellectual property rights of any third party, then Netlok may at its discretion: (1) modify the Service or Professional Services so that it is non-infringing; (2) replace the portion of the Service or Professional Services that infringe or allegedly infringe with non-infringing components that are functionally equivalent; (3) obtain a license that will enable Customer to continue use of the Service or Professional Services as provided under this Agreement; or (4) if none of the foregoing are commercially reasonable for Netlok, terminate this Agreement and refund any prepaid but unused Service Fees or Professional Service Fees. THIS SECTION 9 (INDEMNITY) STATES NETLOK’S ENTIRE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
10. LIMITATIONS ON LIABILITY.EXCEPT WITH RESPECT TO SECTION 4 (CUSTOMER RESPONSIBILITIES) AND SECTION 8 (CONFIDENTIAL INFORMATION): (A) IN NO EVENT WILL A PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (HOWEVER ARISING, INCLUDING NEGLIGENCE), OR FOR ANY LOST PROFITS, INTERRUPTED COMMUNICATIONS, OR LOST DATA, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT WILL EXCEED THE AMOUNT OF SERVICE FEES OR PROFESSIONAL SERVICE FEES PAID OR PAYABLE BY CUSTOMER TO NETLOK FOR THE SERVICE OR PROFESSIONAL SERVICES (AS APPLICABLE) DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS FIRST GIVING RISE TO ANY SUCH LIABILITY.
11. GENERAL PROVISIONS.
11.1 Governing Law. This Agreement is governed by and construed in accordance with the laws of the State of California without giving effect to any rule or law that would apply the law of another jurisdiction. Each party hereby irrevocably and exclusively submits to the process, jurisdiction, and venue of the courts located in the State of California for purposes of suit or other proceedings arising out of or relating to this Agreement or the subject matter hereof. In the event that a suit is brought to enforce the terms of this Agreement, the prevailing party will be entitled to its reasonable attorneys’ fees and costs.
11.2 Agreement to Arbitrate. Certain portions of this Section 11 are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and Netlok agree that we intend that this Section 11 satisfies the “writing” requirement of the Federal Arbitration Act. This Section 11 can only be amended by mutual agreement.
11.2.1 First – Try to Resolve Disputes and Excluded Disputes. If any controversy, allegation, or claim arises out of or relates to the Service, the Professional Services, or this Agreement, whether heretofore or hereafter arising (collectively, “Dispute”), or to any of Netlok’s actual or alleged intellectual property rights (an “Excluded Dispute”, which includes those actions set forth in Section 11.2.5_), then you and we agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us. But if no such information exists or if such information is not current, then we have no obligation under this Section 11.2.1. Your notice to us must be sent to the address set forth in Section 11.8 below. For a period of sixty (60) days from the date of receipt of notice from the other party, Netlok and you will engage in a dialogue in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either you or Netlok to resolve the Dispute or Excluded Dispute on terms with respect to which you and Netlok, in each of our sole discretion, are not comfortable.
11.2.2 Forums for Alternative Dispute Resolution.
22.214.171.124 Arbitration. If we cannot resolve a Dispute as set forth in Section 11.2.1 within sixty (60) days of receipt of the notice, then either you or we may submit the Dispute to formal arbitration in accordance with this Section 11.2.2. If we cannot resolve an Excluded Dispute as set forth in Section 11.2.1 within sixty (60) days of receipt of the notice, then either you or we may submit the Excluded Dispute to formal arbitration only if you and Netlok consent, in a writing signed by you and an Officer or legal representative of Netlok, to have that Excluded Dispute subject to arbitration. In such a case, (and only in such a case), that Excluded Dispute will be deemed a “Dispute” for the remainder of this Section 11.2.2.
Upon expiration of the applicable sixty-day period and to the fullest extent permitted by applicable law, a Dispute will be resolved solely by binding arbitration in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association (“AAA”). If the Dispute has a claimed value of not more than $250,000, then the arbitration will be heard and determined by a single neutral arbitrator who is a retired judge or a lawyer with not less than fifteen (15) years’ experience as a practicing member of the bar in the substantive practice area related to the Dispute, who will administer the proceedings in accordance with the AAA’s Supplementary Procedures for Consumer Related Disputes. If the Dispute has a claimed value of more than $250,000, or if Netlok elects in its sole discretion to bear the costs of arbitration in excess of those that would occur for a proceeding before a single neutral arbitrator, then the arbitration will be heard and determined by a three-member panel, with one member to be selected by each party and the third (who will be chair of the panel) selected by the two party-appointed members or by the AAA in accordance with the Commercial Arbitration Rules. The arbitrator or arbitration panel, as the case may be, will apply applicable law and the provisions of these Terms and any Additional Terms, will determine any Dispute according to the applicable law and facts based upon the record and no other basis, and will issue a reasoned award. If you and Netlok do not both consent to the arbitration of an Excluded Dispute as set forth in the immediately preceding paragraph of this Section 126.96.36.199, then this paragraph and the remainder of this Section 11.2.2 will not apply to the Excluded Dispute.
If a party properly submits the Dispute to the AAA for formal arbitration and the AAA is unwilling or unable to set a hearing date within sixty (60) days of the filing of a “demand for arbitration,” then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”) using JAMS’ streamlined Arbitration Rules and Procedures, or by any other arbitration administration service that you and an officer or legal representative of Netlok consent to in writing. The substantive practice area requirements for the arbitrator and the $250,000 threshold for the number of arbitrators assigned to the Dispute set forth in the paragraph above for the AAA arbitration will also apply to any such arbitration under JAMS or another arbitration service.
You can obtain AAA and JAMS procedures, rules, and fee information as follows:
- AAA: 800.778.7879 — http://www.adr.org/
- JAMS: 949.224.1810 — http://www.jamsadr.com/
11.2.3 Nature, Limitations, and Location of Alternative Dispute Resolution. In arbitration, as with a court, the arbitrator must honor the terms of this Agreement and can award the prevailing party damages and other relief (including attorneys’ fees). However, WITH ARBITRATION (A) THERE IS NO JUDGE OR JURY, (B) THE ARBITRATION PROCEEDINGS AND ARBITRATION OUTCOME ARE SUBJECT TO CERTAIN CONFIDENTIALITY RULES, AND (C) JUDICIAL REVIEW OF THE ARBITRATION OUTCOME IS LIMITED. All parties to the arbitration will have the right, at their own expense, to be represented by an attorney or other advocate of their choosing. If an in-person arbitration hearing is required, then it will be conducted in the “metropolitan statistical area” (as defined by the U.S. Census Bureau) where you are a resident at the time the Dispute is submitted to arbitration. You and we will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require Netlok to pay a greater portion or all of such fees and costs in order for this Section 11 to be enforceable, then Netlok will have the right to elect to pay the fees and costs and proceed to arbitration, or to decline to do so and have the matter resolved through the courts. Discovery will be permitted pursuant to the applicable arbitration rules. The arbitrator’s decision must consist of a written statement stating the disposition of each claim of the Dispute, and must provide a statement of the essential findings and conclusions on which the decision and any award (if any) is based. Judgment on the arbitration decision and award (if any) may be entered in or by any court that has jurisdiction over the parties pursuant to Section 9 of the Federal Arbitration Act.
11.2.4 Limited Time to File Claims. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE (BUT NOT AN EXCLUDED DISPUTE) AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH IN SECTION 11.2.1) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES – OR IT WILL BE FOREVER BARRED.
11.2.5 Injunctive Relief. The foregoing provisions of this Section 11 will not apply to any legal action taken by Netlok to seek an injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to this Agreement, the Service, the Professional Services and/or Netlok’s intellectual property rights (including such Netlok may claim that may be in dispute), Netlok’s operations, and/or Netlok’s products or services.
11.2.6 Small Claims Matters Are Excluded from Arbitration Requirement. Notwithstanding the foregoing, either of us may bring qualifying claim of Disputes (but not Excluded Disputes) in small claims court, subject to Section 11.2.8.
11.2.7 No Class Action Matters. Disputes will be arbitrated only on an individual basis and will not be consolidated with any other arbitration or other proceedings that involve any claim or controversy of any other party. But if, for any reason, any court with competent jurisdiction or any arbitrator selected pursuant to Section 188.8.131.52 holds that this restriction is unconscionable or unenforceable, then our agreement in Section 11.2.2 to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to Section 11.2.8.
11.2.8 Federal and State Courts in Los Angeles. Except to the extent that arbitration is required in Section 11.2.2, and except as to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute or Excluded Dispute may only be instituted in state or federal court in Los Angeles, CA. Accordingly, you and Netlok consent to the exclusive personal jurisdiction and venue of such courts for such matters.
11.3 Compliance with Laws. Each party will comply with all laws, rules, and regulations applicable to such party while performing under this Agreement.
11.4 Severability; Waiver. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision which most closely approximates the intent and economic effect of the invalid provision. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. The waiver by either party of a breach of any provision of this Agreement will not constitute an ongoing or future waiver of such breach or provision.
11.5 Force Majeure. Netlok will not be liable under this Agreement by reason of any failure or delay in the performance of its obligations under this Agreement as a result of any cause that is beyond its reasonable control.
11.6 Headings; Interpretation. Headings used in this Agreement are for reference purposes only and in no way define, limit, construe, or describe the scope or extent of such section or in any way affect this Agreement. The words “includes” and “including” are not considering limiting in any way and mean “includes/including without limitation”.
11.7 Assignment. Neither party may assign or transfer, by operation of law or otherwise, this Agreement, or any of its rights under this Agreement or delegate any of its duties under this Agreement to any third party without the other party’s prior written consent; except pursuant to a transfer of all or substantially all of such party’s business and assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, or otherwise, which will not require the other party’s consent. Any attempted assignment or transfer in violation of the foregoing will be void. This Agreement will inure to the benefit of and be binding upon any permitted successors or assigns.
11.8 Independent Contractors. The parties to this Agreement are independent contractors and no agency, partnership, joint venture, or employee-employer relationship is intended or created by this Agreement. Neither party will have the power to obligate or bind the other party.
11.9 Notice. Any notices to Netlok required or permitted under this Agreement will sent to Netlok at the postal address below, or at such other address as Netlok will specify in writing.
1171 Crestline Drive, Santa Barbara, CA 93105
Any notices to Customer required or permitted under this Agreement will be given at the email address provided by Customer in the Order, or at such other email address as Customer will specify in writing. Such notice will be deemed given upon personal delivery; if sent by email, upon a confirmation response; or if sent by overnight courier, one (1) day after the date of delivery to the courier.
If by email, use the following address: firstname.lastname@example.org
11.10 Customer Communication. Customer understands and agrees that the Service and Professional Services require periodic email communication including notifications and other critical emails. Further, Customer understands and agrees that without email communication Customer will not be able to receive customer support, maintenance notifications, upgrade announcements, or other critical information to operate the Service or receive Professional Services. As a result, by executing an Order, Customer is consenting to Netlok’s email communications with (and notices sent to) administrative contacts supplied by Customer.
11.11 Government End Users. The Service and Documentation are “commercial items” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Service, and Documentation with only those rights provided in this Agreement.
11.12 Export. Customer will not: (a) permit any third party to access or use the Service or Professional Services in violation of any U.S. law or regulation; or (b) export, directly or indirectly, any technical data acquired from Netlok pursuant to this Agreement or any product utilizing any such data to any country for which the U.S. Government or any agency thereof at the time of export requires an export license or other governmental approval without first obtaining such license or approval, or otherwise remove from the United States any such technical data or any product utilizing such data except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer will not permit any third party to access or use the Service or Professional Services in, or export any such technical data or product utilizing such data to, a country subject to a United States embargo (as of the Effective Date: Cuba, Iran, North Korea, Sudan, and Syria).
11.13 Entire Agreement. This Agreement sets forth the entire understanding and agreement of the parties and supersedes any and all oral or written agreements or understandings between the parties as to the subject matter of this Agreement. Any and all standard or “form” terms associated with a Customer purchase order, Customer ordering document, or Customer invoice submission system or other portal are hereby rejected (regardless of any electronic or online indication of agreement to the same), will be not binding on the parties, will be of no consequence whatsoever in interpreting the parties’ legal rights and responsibilities as they pertain to this Agreement (including any billing or payment requirements), the Service, or Professional Services, and no person other than Netlok’s CEO or CFO has the authority to bind Netlok to the same. Any reference on the Site to the “Terms of Service” will mean, with respect to Customer, this Agreement. Except as otherwise provided in this Agreement, all modifications or amendments to this Agreement must be in writing and signed by the authorized representatives of both parties. No person, other than Netlok’s CEO or CFO has the authority to waive or amend any terms of this Agreement (including any Order) on behalf of Netlok. To the extent of any conflict between the provisions of this Agreement and the provisions of any Order, the provisions of this Agreement will govern, except that those provisions of an Order that expressly identify the conflicting provision of this Agreement to be superseded will govern (solely to the extent of the conflict). Neither party is relying upon any warranties, representations, assurances, or inducements not expressly provided in this Agreement.