SOFTWERE AS A SERVICES (SAAS) AGREEMENT
YOU ACCEPT THIS SOFTWARE AS A SERVICE AGREEMENT (AGREEMENT) BY CLICKING A BOX INDICATING YOUR ACCEPTANCE; BY EXECUTING AN ORDER THAT REFERENCES THIS AGREEMENT OR BY SIGNING (ELECTRONICALLY OR MANUALLY) THIS AGREEMENT OR BY USING THE SERVICES, YOU AGREE TOTHE TERMSOF THIS AGREEMENT. IF YOU ACCEPT THIS AGREEMENT FOR AN ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT. THIS AGREEMENT APPLIES UNLESS YOU HAVE A SEPARATE WRITTEN AGREEMENT IN PLACE EXPRESSLY COVERING THE SERVICES.
1. Interpretation
1.1 In this Agreement, the following definitions shall have the following meanings:
Affiliate means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.
Company means Access Layers Ltd, (dba Portnox).
Customer You Your means, in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which you are accepting this Agreement, which may include its Affiliates, as set forth in the applicable Order.
Control means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
Approved Source means Company or a Company's authorized reseller, distributor or systems integrator.
"Customer Data" shall mean, any and all data, information and/or content that Customer create, edit, post, process, upload, transmit or otherwise provide to Company through the Services, either in the form of source code, text, image, video, link or other, posted on, transmitted through, or linked from the Services, including and without limitation, any information/data of Customer and/or of other third parties, including any personal data related to Customer's clients or users or otherwise.
Order means an ordering document between Customer or an Approved Source (as applicable) that identifies the duration, type and quantity of the Services ordered under this Agreement and the associated fees. The terms of an Order will not amend, modify or supersede the terms and conditions of this Agreement.
Privacy Policy means Company's then current privacy policy located at https://www.portnox.com/privacy-policy/ as may be revised from time to time.
Services means Company's, (i) online cloud-based software as a service (SaaS), made available to Customer pursuant to the terms of this Agreement; and (ii) the Support Services; and (iii) other related services in connection therewith, as now offered and/or may be offered in the future.
Services Fees means, the subscription fees payable by the Customer to the Company for the Services, as set out in Order.
Support Services means any and all maintenance and support services as may be provided by Company to Customer pursuant to Company's standard Service Level Agreement terms, currently available at: https://portnox.box.com/v/clearsla, or any other terms specifically agreed in writing between Customer and Company.
We, Us or Our means Company and its subsidiaries or Affiliates involved in providing the services.
The headings used in this Agreement are for convenience of reference only and shall not affect the interpretation or meaning of the terms and provisions of this Agreement.
2. Provision of Services
2.1 In consideration of the fees paid by Customer under this Agreement or in case of Customer purchased the Services through an Approved Source, subject to the payment of such fees agreed between Customer and such Approved Source, Company agrees to provide Customer access to the Services.
3. Grant of Rights; Prohibited Use
3.1 Subject to the terms of this Agreement, Company hereby grants to Customer, during the Term (as defined below), solely for the Customer's internal business operations and for non-commercial purpose, and strictly in accordance with the terms and conditions of this Agreement and with any applicable law, a limited, non-commercial, non-perpetual, non-exclusive, non-transferable right to access and use the Services for the subscription period specified under the Order.
3.2 The Customer shall not: (a) attempt to copy, modify, duplicate, imitate, reproduce, create derivative works from, frame, mirror, or download, all or any portion of the Services in any form or media or by any means; and/or (b) attempt to decompile, disassemble, reverse engineer or otherwise attempt to discover any source code from, all or any part of the Services; and/or (c) sell, rent, lease, transfer, assign, distribute, transmit, display, publish, disclose, or otherwise dispose, commercially exploit, or otherwise make the Services available to any third party; and/or (d) access or use all or any part of the Services in order to build or create a product or service which is similar to, or which competes with, the Services; and/or (e) use the Service (or any part thereof) for commercial purposes or in connection with any commercial activity; and/or (f) attempt to obtain, or assist third parties in obtaining, unauthorized access to the Services; and/or (g) abuse the Services in any way and/or use the Services for advertising or solicitation to buy or sell any products and/or for creating, sharing and sending unsolicited commercial messages, bulk email, "junk mail", "spam" or chain letters; and/or (h) create or send any viruses, worms or trojan horses, flood or mail bombs, or engaging in denial of service attacks while using the Services; and/or (i) use or launch any automated system, including without limitation, any "robots", "spiders", or "offline readers", that accesses the Service in a manner that sends to the servers, cloud or other platform on which the Services operates, more request messages in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser; and/or (j) use or launch any data mining or any similar data gathering and extraction tools, in connection with the Services (including by using software, scripts or automated agents and bots); and/or (k) use the Services in any manner that damages, disables, overburdens, or impairs the Services, or Company's systems or servers, or the cloud or other platform on which the Services operates, and/or otherwise interferes with any other party's use and enjoyment of the Services, and/or (l) access the Services by any means other than through the interface that is provided by Company for accessing and use of the Services; and/or (m) create, edit, store, post, upload, distribute or transmit, while using the Services, or otherwise make available through the Services, any Customer Data not in compliance with Section 5.2 below; (m) use the Services in any manner that is unlawful or prohibited or in violation of this Agreement and/or any applicable law or regulation; (n) permit any third party to do any of the foregoing.
3.3 Company reserves the right, at its sole discretion without any liability to the Customer, to disable, suspend or terminate Customers access to the Services, in the event of any breach by Customer or anyone on its behalf, of the provisions of this Section 3.
3.4 Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, it shall promptly notify Company.
3.5 The rights provided under this Section 3 are granted to Customer only, and shall not be considered granted to any subsidiary, affiliate or holding company of the Customer.
4. Registration to Service
4.1 Customer acknowledges that certain functionalities of the Services require registration in order to be able to enjoy such functionalities. Company reserves the right to decide which functionalities require registration or will require registration in the future. The registration process may require Customer to provide information regarding (but not limited to) its first and last name, its e-mail address at work, its phone number, the name of its workplace, the country and size of such workplace (how many employees are employed in such workplace), its role and function at such workplace and/or other information. By performing the registration, Customer represent and warrant that all registration information it submits is accurate and truthful and that it agrees to update and maintain the accuracy of such information. Company reserves the right to disable, suspend or terminate Customers access to the Services, if registration information submitted by such Customer seems or proves to be false, inaccurate or incomplete. Registration of more than one account per individual is not permitted and automatic generation of multiplied accounts by individuals or organizations is restricted and may lead to legal action.
5. Customer data
5.1 In respect of Customer Data, both parties acknowledge that Customer is considered to be the data controller and Company is considered to be the data processor, as such terms are defined in applicable laws, regulations, directives and certifications relating to data protection and privacy (collectively Data Protection Laws).
5.2 Customer undertakes and agrees that: (a) its clients have been informed of Companys use of Customer Data as required by Data Protection Laws; (b) Customer has obtained consents and permits from its clients as required under Data Protection Laws and has displayed, if applicable, a link to Company's Privacy Policy; (c) Customer Data has been and will continue to be collected, processed and transferred by it in accordance with the relevant Data Protection Laws; and (d) any instruction to Company in connection with the processing of Customer Data, has been and will continue to be carried out in accordance with the relevant Data Protection Laws.
5.3 Company undertakes and agrees that: (a) it will process Customer Data in accordance with Data Protection Laws and that Data Protection Laws do not prevent it from fulfilling its obligations in regard to the processing of Customer Data; (b) it has in place appropriate security measures to protect the Customer Data and provide a level of security appropriate to the risk represented by the processing and nature of such Customer Data; (c) it will deal properly with reasonable inquiries from Customer or from the law enforcement authority relating to its processing of the Customer Data and will abide by Customers reasonable and lawful instructions with regard to processing of Customer Data; (d) any person or third party acting on behalf of Company, including a data processor, shall be obligated to process the Customer Data only, based upon instructions from Company; (e) it will promptly notify Customer concerning (i) any legally binding request for disclosure of Customer Data (unless otherwise prohibited); (ii) any accidental or unauthorized access or loss of Customer Data; and (iii) any request received directly from any of Customers clients without responding to that request; and (f) if Company cannot fulfill any of its undertakings pursuant to this Agreement for whatever reasons, Company shall promptly inform Customer, in which case Customer shall be entitled to immediately suspend the transfer of Customer Data or terminate any specific module or portion of the Services that require provision of Customer Data.
5.4 Each party may disclose the Customer Data only to its employees, agents, subcontractors or data processors that have a need to know of such Customer Data in order to perform their respective obligations under this Agreement. The parties will have in place procedures so that any third party it authorizes to have access to Customer Data will respect and maintain the confidentiality and security of the Customer Data.
5.5 Customer will indemnify, defend, and hold Company harmless against any claim, demand, suit or proceeding (including any damages, costs, reasonable attorneys fees, and settlement amounts) made or brought against Company by a third party alleging that Customer Data received by Company from Customer or processed by Company in accordance with Customers instructions, is in breach or violation of Data Protection Laws.
5.6 Customer shall own all rights, title and interest (or it shall otherwise acquire the required license or rights from any applicable third party), in and to all of the Customer Data and shall remain exclusively responsible for and shall evaluate and bear all risks associated with all acts or omissions in connection with the Customer Data that it creates, stores, posts, uploads, transmits while using the Services, or otherwise makes available through the Services. Customer acknowledges, represents and warrants that: (i) Company does not control or monitor, and is not responsible for the Customer Data that Customer makes available through the Services; (ii) Company reserves the right to remove any Customer Data which deems to be in violation with any of the terms set forth herein, at Company's sole discretion, and take any action it deems appropriate; (iii) Company makes no representations or warranties as to the Customer Data, and all express, implied and statutory warranties in connection with the Customer Data, including without limitation with respect to the legality, reliability, authenticity, integrity, accuracy, content, completeness, availability and quality thereof, are all expressly disclaimed to the fullest extent permitted by law. Further, Customer represents and warrants that it will not create, store, post, upload or transmit or otherwise make available through the Services, any Customer Data that: (i) is unlawful, harmful, threatening, defamatory, offensive, obscene, infringing, harassing or racially or ethnically offensive; (ii) facilitates or relates to illegal activity; (iii) depicts sexually content; (iv) promotes or relates to unlawful violence; (v) is discriminatory based on race, gender, colour, religious belief, sexual orientation or disability; (vi) causes or may cause damage or injury to any person, corporation, entity or property; and/or (vii) relates to any third party under the age of 13. Under no circumstances will Company be liable in any way for any Customer Data or for any loss or damage of any kind incurred by Customer as a result of the use and/or distribution and/or the provision to Company and/or the transmission through the Services of any Customer Data.
6. Privacy
Customer acknowledges that Company process, stores and uses Customer Data. Customer hereby consent to Companys processing and use of such Customer Data and agrees that such processing and use of information will be governed by Companys Privacy Policy
7. Third party providers
7.1 Customer acknowledges that the Company uses third party cloud services in order to provide the Services. The Customer acknowledges and agrees that Company is not and shall not be responsible for the availability, performance or security of any such external third party services or resources, and it shall not be held liable for any loss or damage (including loss of data and/or loss of profits), which may be incurred by the Customer, as a result of the lack of availability of, the interruptions or errors in the performance of, and any other problem in those external third party services or resources, or as a result of the lack of availability of, the interruptions or errors in the performance of, and any other problem in the Services provided through such external third party services or resources.
7.2 In addition to the aforesaid, Customer acknowledges, that the Company may utilize, include in the Services, automatically distribute and/or download and install on any machine who access the interface that is provided by Company for accessing and use of the Services, certain third-party software, components, cookies and/or libraries that are subject to open source license and/or to other third-parties license terms (Third Party Software). Customer acknowledges and agrees to the use by the Company of such Third Party Software.
7.3 Customer acknowledges and agree that its right to use such Third Party Software in connection with the Services, is subject to and governed by the terms and conditions of the open source or third-party license applicable to such Third Party Software, including, without limitation, any applicable acknowledgements, license terms and disclaimers contained therein. In the event of a conflict between the provisions of this Agreement and the terms of such Third Party Software license, the terms of the applicable Third Party Software license shall prevail with regard to Customer's use of the relevant Third Party Software. Other than the applicable Third Party Software component, in no event, shall the Services (or any part thereof) be deemed to be open source or publicly available software etc.
8. Statistical Information
8.1 The Company may compile statistical information related to the performance of the Services, and may use and/or make such information publicly available, provided that such information does not incorporate any Customer Data and/or identify Customer's Confidential Information (as defined below) or include Customer's name. The Company retains all intellectual property rights in such information.
9. Company's obligations
9.1 The Company undertakes to use commercially reasonable endeavours to make the Services available within the time frame set forth in the SLA, and further undertakes that the Services will be provided with reasonable commercial skill and care.
9.2 The undertaking in Section 8.1 above shall not apply to the extent that any non-conformance which is caused by use of the Services in contrary to the Company's instructions and/or in any way other than in strict compliance with this Agreement. Subject to the foregoing, if the Services do not conform to the undertaking in Section 8.1, Company will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy, and Companys sole liability, for any breach of the undertaking set out in Section 8.1.
9.3 If the Services do not conform to the foregoing undertaking, Company will, at its expense and its discretion, use all reasonable commercial endeavours to correct any such non-conformance, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in Section 8.1.
10. Customer's obligations
10.1 Customer hereby declares towards Company that it has legally acquired and/or owns all right, title and interest, in and to all copies of the Customer Data and that it has the right to use, distribute, provide the Company and transmit through the Services such Customer Data. By using the Services, Customer gives its consent to Company, and grant Company with a worldwide, royalty-free, and non-exclusive license, to scan and collect such Customer Data, store such Customer Data in the Company's servers, third party's external servers or cloud services on which the Services operates, and to use such Customer Data in order to provide it with the Services.
10.1 Without derogating from any other obligation of the Customer pursuant to this Agreement, the Customer undertakes to: (a) provide the Company with all necessary cooperation in relation to this Agreement and in order to render the Services; and (b) comply with all applicable laws and regulations with respect to its activities under this Agreement and its use of the Services; and (c) carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner; and (d) to the extent required, obtain and maintain all necessary licences, consents, and permissions necessary for the Company to perform its obligations under this Agreement, including, without limitation, for the transmission through the Services of any Customer Data; and (e) ensure that its network and systems comply with the relevant specifications provided by the Company from time to time; and (f) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Companys data centres, Company's servers, third party's external servers, cloud or other platform on which the Services operates (as shall be instructed by the Company from time to time), and be solely liable for problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.
11. Fees and Payment for the Service
11.1 This Section 10 applies to Orders for the Services Customer place directly with Company. If Customer ordered the Services from an Approved Source, Customer's agreement with the Approved Source will provide the applicable payment terms.
11.2 In consideration of the Services, Customer hereby agrees to pay the Company the Services Fees set forth in the Order in accordance with the payment terms set forth therein. Customer will pay invoices for the Services within 30 days of the invoice date unless the Order specifically states otherwise.
11.3 Any Services Fees, not paid when due, are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. In addition, if Customer is more than 30 days late in paying an invoice, without prejudice to any other rights and remedies available to the Company under any applicable law, the Company may, at its sole discretion without liability to the Customer, disable, suspend or terminate the Customers and/or anyone on its behalf (as applicable) access to all or part of the Services, and the Company shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid.
11.4 All Services Fees are non-cancellable and non-refundable; the Services Fee exclude any applicable taxes, accordingly Customer hereby agree to pay applicable taxes and similar charges, including sales, usage, excise and value added taxes. Nothing in this Agreement requires either party to pay income taxes or similar charges of the other party.
12. Proprietary rights
12.1 Company shall retain all right, title and interest, including without limitation all patents, copyrights, trade secrets, trademarks, and other intellectual property and proprietary rights in and to the Services and/or its technology, including any improvements, updates, upgrades, error-corrections or other modifications thereof, and any work products thereof. Except for the rights expressly granted to Customer under Section 3.1 above, this Agreement does not grant the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Company, its technology, its products and services (including the Services) and/or any documentation ancillary thereof.
12.2 Without derogating from the generality of the above, the Company shall be the sole and exclusive owner of all rights in connection with any and all ideas, inventions and/or improvements (whether patentable or not) conceived or derived or result from, or relate to, directly or indirectly, any feedback (written or oral) that Customer voluntarily choose to provide Company regarding the Services and/or its experience while using the Services. Customer irrevocably assigns to the Company any rights that Customer may have or acquire in such ideas, inventions and/or improvements, and it irrevocably waives any right it has or may have in the future to receive any payment, royalty or other consideration (of any kind) with respect to such ideas, inventions and/or improvements.
12.3 Customer agrees that Company, in its sole discretion, may use Customers trade names, trademarks, service marks, logos, domain names and other distinctive brand features in presentations, marketing materials, customer lists, financial reports and website listings (including links to Customers Website) for promotional and publicity purposes.
12.4 This Section 12 (except for Section 12.3) shall survive any termination or expiration of this Agreement.
13. Confidentiality
13.1 Each party may be provided with, given access to, or exposed to, Confidential Information of the other party in connection with this Agreement. Confidential Information shall mean any information and data of a proprietary or confidential nature, whether in oral, written, graphic, machine-readable form, or in any other form, including but not limited to proprietary, technical, development, marketing, sales, price, operating, performance, cost, know-how, business and process information, methods, procedures, data, computer programming techniques and computer code, any information regarding suppliers, licensors, licensees, partners, affiliates, customers, potential customers or others, and all record bearing media containing or disclosing such information and techniques, which is disclosed by one party to the other party pursuant to this Agreement or to which the other party is exposed or given access in connection with this Agreement, whether or not marked as Confidential or similar marking. Without derogating from the generality of the foregoing, Confidential Information of the Company shall include also the details of the Services, and the results of any performance tests of the Services and any work products of the Services, and Confidential Information of the Customer shall include also the Customer Data.
13.2 Confidential Information shall not include any information that: (a) is or becomes publicly known other than through any act or omission of the receiving party; (b) was in the receiving party's lawful possession before the disclosure, as evidenced by applicable documentary; (c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; (d) is independently developed by the receiving party, as evidenced by applicable documentary; or (e) is required to be disclosed by any final judicial or administrative order or decree or pursuant to any applicable law.
13.3 Each party shall hold the other party's Confidential Information in strict confidence, shall not disclose or make such Confidential Information available to any third party, and shall not use such Confidential Information for any purpose other than for performing its obligations under this Agreement.
13.4 Each party shall be entitled to disclose the other party's Confidential Information to its officers, directors, employees and consultants (Representatives), on a need to know basis, provided that such Representatives are bound by confidentiality obligations of at least scope of this Agreement and provided further that such party shall be responsible for and liable to any breach or violation of this Agreement by such Representatives.
13.5 This Section 13 shall survive any termination or expiration of this Agreement.
14. Changes to the Services
14.1 Company reserves the right at any time and from time to time to modify, temporarily or permanently, the Services (or any part thereof), provided such modification does not diminish the functionality of the Services to the Customer on which the Customer materially relies. Notwithstanding the foregoing, except for routinely scheduled down time, or as otherwise provided in this Agreement, Company shall use commercially reasonable efforts to notify Customer prior to any such modification; Customer acknowledges that Company reserves the right to discontinue offering the Services at the conclusion of Customers then current Term. Customer agrees that Company will not be liable to Customer or any third party for any modification or discontinuance of the Service as described in this Section 14.
14.2 The Company reserves the right, at its sole discretion without liability to the Company, to disable, suspend or terminate Customers access to the Services in the event of any material breach of Customer or anyone on its behalf of the provisions of Sections 2,5, 10, 11 above.
15. Export
15.1 Export laws and regulations of law, the United States and any other relevant local export laws and regulations apply to the Services. Customer acknowledges and agrees that such export control laws govern Customer's use of the Services, and Customer agrees to comply with all such export laws and regulations (including deemed export and deemed re-export regulations). Customer agrees that no data, information, programs and/or materials resulting from services (or work products thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.
16. Indemnity
16.1 Customer shall defend, indemnify and hold harmless the Company against any and all claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs, legal expenses and reasonable legal fees) arising out of, or in connection with, this Agreement and/or the use of the Services by the Customer or by anyone on its behalf (including in connection with Customer Data and/or any infringement of such Customer Data of this Agreement or third parties' rights), provided that: (a) the Customer is given reasonable notice of any such claim; and (b) the Company provides reasonable cooperation to the Customer in the defence and settlement of such claim, at the Customer's expense.
17. Warranty and Warranty Disclaimers
17.1 EXCEPT AS OTHEREWISE EXPRESSLY SPECIFIED HEREIN, THE SERVICES ARE PROVIDED ON AN AS IS AND AS AVAILABLE BASIS, WITHOUT ANY WARRANTIES OF ANY KIND WHATSOEVER. ALL EXPRESS, IMPLIED AND/OR STATUTORY WARRANTIES IN CONNECTION WITH THE SERVICE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AS WELL AS ANY WARRANTIES REGARDING SECURITY, SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, ACCURACY AND PERFORMANCE OF THE SERVICES, ARE ALL EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW. NO STATEMENT OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM THE COMPANY (OR ANYONE ON ITS BEHALF) IN ANY MEANS OR FASHION SHALL CREATE ANY WARRANTY IF NOT EXPRESSLY AND EXPLICITLY SET FORTH IN THIS AGREEMENT
17.2 Notwithstanding anything herein to the contrary the Company: (a) does not warrant that the Services will operate error free or without interruption or bugs; nor that the Services will meet the Customer's requirements or expectations; and (b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
18. Limitation of liability; Disclaimers
18.1 This Section 18 sets out the entire sole and exclusive liability of the Company (including any liability for the acts or omissions of its employees, officers, agents and sub-contractors) to the Customer in respect of: (a) any breach of this Agreement; and (b) any use made by the Customer (or anyone on its behalf) of the Services or any part of thereof; and (c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with this agreement.
18.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT: (A) IN NO EVENT SHALL THE COMPANY BE LIABLE, WHETHER IN TORT (INCLUDING FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY), CONTRACT, MISREPRESENTATION, RESTITUTION OR OTHERWISE, FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, DEPLETION OF GOODWILL AND/OR SIMILAR LOSSES, LOSS OR CORRUPTION OF DATA OR INFORMATION, PURE ECONOMIC LOSS, OR FOR ANY SPECIAL, INDIRECT PUNITIVE, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR OTHER SIMILAR LOSS, COSTS, DAMAGES, CHARGES OR EXPENSES, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF, MISUSE, INABILITY TO USE, OR THE RELIANCE UPON, THE SERVICES AND/OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT AND/OR THE SERVICES; AND (B) IN NO EVENT SHALL THE COMPANY'S TOTAL AGGREGATE LIABILITY, IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION, RESTITUTION OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF, MISUSE, INABILITY TO USE, OR THE RELIANCE UPON, THE SERVICES AND/OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT AND/OR THE SERVICES, EXCEED THE TOTAL SERVICES FEES PAID BY CUSTOMER FOR THE SERVICES DURING THE 12 MONTHS PERIOD PRECEDING THE DATE ON WHICH THE CLAIM LEADING TO LIABILITY AROSE.
18.3 Except as expressly and specifically provided in this Agreement, the Customer assumes the sole responsibility for results obtained from the use of the Services, and for conclusions drawn from such use. The Company shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Company by the Customer in connection with the Services (including without limitation, Customer Data), or any actions taken by the Company at the Customer's direction.
18.4 Notwithstanding anything to the contrary herein, the Company will not be held liable for any delay or failure in performance or non-availability of the Services resulting, directly or indirectly, from acts of nature, forces, events, omissions, accidents or causes beyond its reasonable control, including, but not limited to, internet failure, network or computer equipment failures, telecommunication equipment failure, electrical power failures, strikes, lock-outs or other industrial disputes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, breakdown of plant or machinery, acts of God, war, governmental actions or orders, orders of domestic or foreign courts or tribunals or loss of or fluctuations in heat, light or air conditioning.
18.5 This Section 18 shall survive any termination or expiration of this Agreement.
19. Term and termination
19.1 This Agreement shall commence on the date the Services are available for use by Customer and lasts for the time period stated in the Order (Term). Notwithstanding the foregoing, and without prejudice to any other rights or remedies to which the parties may be entitled under this Agreement and/or any applicable law, either party may immediately terminate this Agreement without liability to the other if: (a) the other party commits a material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing of the breach; and/or (b) if the other party (i) becomes insolvent, (ii) makes an assignment for the benefit of creditors, (iii) files or has filed against it a petition in bankruptcy or seeking reorganization and said petition shall remain unvacated for and said petition shall remain unvacated for a period of 30 days , (v) has a receiver appointed, or (vi) institutes any proceedings for the liquidation or winding up that is not discharged within 60 days of filing; and/or (vii) any other termination of this Agreement as specified under the terms of this Agreement.
19.2 Upon termination or expiration of this Agreement for any reason whatsoever: (a) all rights granted to Customer under this Agreement shall immediately terminate; (b) the Customer shall immediately cease any use of the Services; (c) all outstanding Services Fees will immediately become due and payable by Customer; (d) each party shall return and make no further use of any Confidential Information (and all copies of them) belonging to the other party; and (e) the Company shall destroy any of the Customer Data in its possession (if any). For the avoidance of doubt, any provision expressly stated to survive or implicitly surviving termination or expiration, shall not be affected or prejudiced by such termination or expiration.
20. Miscellaneous
20.1 This Agreement constitute the entire agreement between the parties regarding the subject matter thereof, and supersede any previous arrangement, understanding or agreement between the parties, written or oral, relating to the subject matter hereof.
20.2 No modification to this Agreement, nor any waiver of any rights, will be effective unless assented to in writing and signed by both parties.
20.3 Neither partys waiver of any breach or default of any provision of this Agreement shall not constitute a waiver of other provisions or any other right hereunder, or a waiver of any subsequent breach or default.
20.4 Unless expressly provided otherwise herein, rights arising under this Agreement are cumulative and do not exclude rights available by law.
20.5 If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions (or the remainder of the provision) shall remain in full force and effect.
20.6 This Agreement does not confer any rights on any third person or party.
20.7 The parties expressly agree that they are independent contractors. Nothing in this Agreement is intended to or shall be interpreted to create a partnership or a joint venture between the parties or authorise either party to act as agent for the other.
20.8 The Customer shall not, without the prior written consent of the Company, assign, transfer, or sub-contract this Agreement and/or any of its rights or obligations under this Agreement, and any unauthorized assignment shall be null and void. The Company may, at any time, assign, transferor sub-contract any of its rights or obligations under this Agreement.
20.9 The table below identifies the governing law that governs this Agreement (ignoring any conflict of laws provision) and the specific courts that have exclusive jurisdiction over any claim arising under this Agreement based on the service delivery address in the Order and where should any required or permitted notices hereunder should be directed to:

If Customer is domiciled in
The governing law is of the:
The courts having exclusive jurisdiction are:
Notices Should be addressed to:
If Customer is domiciled in The United States of America, Mexico, Canada or a Country in Central or South America or the Caribbean, Asia The governing law is of the State of New York. The courts having exclusive jurisdiction are:the State of New York Notices Should be addressed to: 340 S Lemon AveSuite #4567, Walnut CA, 91789
If Customer is domiciled in Europe, Africa The governing law is of England. The courts having exclusive jurisdiction are of London, England. Access Layers, 3rd Floor, 207 Regent Street, LONDON, W1B 3HH
If Customer is domiciled in Israel, The governing law is of Israel, The courts having exclusive jurisdiction are of Tel Aviv, Israel. Notices Should be addressed to: Portnox, HaTidhar 15, Ra'anana ,Israel

20.10 Company may provide Customer with notice via email, regular mail and/or postings on Company's website. Notices to Company should be sent to address set forth above. Notices will be deemed given within 5 days from the delivery date if sent by mail, or within 1 day from the delivery date if send by a courier or delivered by hand.