This version applies to Order Forms with an effective Term start date on or after the Last Updated date shown above. For Order Forms already in effect, see Section 12.9.
BY EXECUTING AN ORDER FORM THAT REFERENCES THESE ARMORPOINT TERMS OF SERVICE (THIS “AGREEMENT”), OR BY OTHERWISE USING OR ACCESSING THE SERVICES (AS DEFINED BELOW) (THE “ACCEPTANCE”), YOU AGREE YOU HAVE READ AND ARE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERM “CUSTOMER” WILL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE ARMORPOINT SERVICES.
This Agreement, by and between Customer and ArmorPoint, LLC (“ArmorPoint”), is effective as of the date of Acceptance (the “Effective Date”) and governs Customer’s use of, and ArmorPoint’s provision of, the ArmorPoint security platform together with the managed detection and response, security operations, advisory, professional, and implementation services purchased by Customer, and any software, agents, appliances, hardware, documentation, deliverables, reports, and data provided in connection therewith (collectively, the “Services”). The particular Services purchased by Customer are identified on the applicable Order Form and their scope is set out in the ArmorPoint Service Agreement referenced in it. Each of ArmorPoint and Customer may be referred to herein individually as a “party” or collectively as “parties”.
1. Definitions
1.1 “Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
1.2 “Confidential Information” means any information that is treated as confidential by a party, including, without limitation, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing. Confidential Information shall not include information that: (a) is already known to the Receiving Party without restriction on use or disclosure prior to receipt of such information from the Disclosing Party; (b) is or becomes generally known by the public other than by breach of this Agreement by, or other wrongful act of, the Receiving Party; (c) is developed by the Receiving Party independently of, and without reference to, any Confidential Information of the Disclosing Party; or (d) is received by the Receiving Party from a third party who is not under any obligation to the Disclosing Party to maintain the confidentiality of such information.
1.3 “Customer Data" means data, logs, telemetry, alerts, and other information collected from or about Customer's environment by the Services, or otherwise provided by Customer to ArmorPoint, and stored in the ArmorPoint platform. Customer Data does not include the aggregated and anonymized data described in Section 6.4
1.4 “Intellectual Property Rights” means all (a) patents, patent disclosures and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, (c) copyrights and copyrightable works (including computer programs), and rights in data and databases, (d) trade secrets, know-how and other Confidential Information, and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
1.5 “Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement or rule of law of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.
1.6 “Order Form” means an ArmorPoint order form, online order page or other similar document that sets forth the components of the Services to which Customer is obtaining a subscription, applicable subscription Term, pricing therefor and other relevant terms, and that references this Agreement.
1.7 “Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity.
2. Services
2.1 Access to the Services. Subject to the terms and conditions of this Agreement, ArmorPoint shall use commercially reasonable efforts to provide the Services to Customer pursuant to this Agreement, and hereby grants Customer a non-exclusive right to access and use the Services.
2.2 Support; Managing Service. Subject to the terms of this Agreement (and payment of all applicable fees), ArmorPoint will provide customer reasonable technical support and maintenance for the Services in accordance with ArmorPoint’s standard practice. If Customer has purchased ArmorPoint’s:
- MXDR Services
- XDR Services
- MDR Services
- Advise Services
- Professional and Add-On Services
- Quick Start Implementation Services
The scope, deliverables, exclusions, and service targets applicable to those services are set out in the ArmorPoint Service Agreement identified on the applicable Order Form. ArmorPoint shall use reasonable efforts to provide Customer such Services in a professional and workmanlike manner, subject to the terms of this Agreement and the applicable Order Form (including payment of all applicable Services fees).
2.3 Services Provided Through Partner, Managed Service Provider or Reseller. If the Software, Hardware or Services were acquired through a Partner, Managed Service Provider or Reseller (“Partner/MSP/Reseller”), the entity that executed the applicable Order Form (the “Ordering Customer”) and any other entity that uses or accesses the Services in connection with that Order Form (an “End User”) each acknowledge, as to itself, that: (i) payment and delivery terms for the Software or Hardware must be established separately and independently between the Ordering Customer and the Partner/MSP/Reseller; (ii) these Terms of Service, together with the applicable Service Agreement(s) and Order Form(s), constitutes the entire Agreement between ArmorPoint and the Ordering Customer regarding the rights and use of the Software, Hardware or Service as described above and is controlling; (iii) the terms and conditions of any Order or any other agreement between the Ordering Customer, any End User, and the Partner/MSP/Reseller are not binding on ArmorPoint; and (iv) the Partner/MSP/Reseller is not authorized to alter, amend or modify the terms of these Terms of Service or to otherwise grant any license or other rights relating in any way to the Software, Hardware or Service. An End User’s acceptance of this Agreement by using or accessing the Services binds the End User to the restrictions and obligations of this Agreement applicable to Customer’s use of the Services, including Section 3 (Restrictions and Responsibilities), but does not by itself make the End User a party to the commercial terms of the Order Form or entitle the End User to enforce this Agreement against ArmorPoint independently of the Ordering Customer. The Ordering Customer and each End User further acknowledge that ArmorPoint makes no representation or warranty with regard to any services provided by any Partner/MSP/Reseller, or any actions or failures to act by any Reseller, and accepts no liability whatsoever for services provided by Partner/MSP/Reseller.
2.4 Service Targets. Any service targets, response times, acknowledgement times, or performance objectives stated in an Order Form, Service Agreement, or applicable Services description are targets only. They are not service-level commitments or guarantees, do not entitle Customer to any service credit, and ArmorPoint’s failure to meet a target is not, by itself, a breach of this Agreement.
2.5 Scope Applicability. Any device type, event source, system, or other item described in a Service Agreement or Services description is within the Services only to the extent it (a) exists in Customer's environment and is connected to and sending data to the ArmorPoint platform, (b) runs an operating system supported under the applicable Service Agreement, and (c) is within the quantities recorded in the applicable Order Form. Connecting, or sending data from devices or event sources in excess of, or otherwise not covered by, the Order Form does not place those items within ArmorPoint’s obligations or liability, does not expand the Services, and is addressed by a quantity true-up through the Order Form or a Contract Change Request.
3. Restrictions and Responsibilities
3.1 License Restrictions. Customer will only use the Services as expressly permitted herein and in the applicable Order Form. The rights granted herein are subject to the following restrictions (the “License Restrictions”). Customer will not directly or indirectly:
- reverse engineer, decompile, disassemble, modify, create derivative works of or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive, the source code underlying the Services;
- attempt to probe, scan or test the vulnerability of the Services, breach the security or authentication measures of the Services without proper authorization or willfully render any part of the Services unusable;
- use or access the Services to develop a product or service that is competitive with the Services or engage in competitive analysis or benchmarking;
- transfer, distribute, resell, lease, license, or assign the Services or otherwise offer the Services on a standalone basis; or
- otherwise use the Services outside the scope expressly permitted hereunder and in the applicable Order Form.
Notwithstanding the foregoing, where the Customer’s Services include SOC monitoring, Customer may test ArmorPoint’s SOC monitoring and response capabilities by staging simulated or actual reconnaissance activity, system, or network attacks, and/or system compromises. Such activities may be initiated directly by Customer or by a contracted third party. Customer shall notify ArmorPoint of testing at least fourteen (14) days in advance of testing with the expectation that ArmorPoint analysts will not be informed of the timing of the disclosed testing. Service targets will not be measured during the period of staged or testing activities. Nothing in Section 3.1(b) restricts testing conducted within Customer’s own environment in accordance with this paragraph; testing directed at the ArmorPoint platform, network, or infrastructure itself remains subject to Section 3.1(b) and requires ArmorPoint’s prior written authorization.
3.2 ArmorPoint Obligations. ArmorPoint is responsible for all of its personnel and for the payment of their compensation, including, if applicable, withholding of income taxes, and the payment and withholding of social security and other payroll taxes, unemployment insurance, workers’ compensation insurance payments and disability benefits.
3.3 Cooperation. Customer acknowledges that ArmorPoint’s provision of the Services is dependent on Customer providing all reasonably required cooperation, and Customer will provide all such cooperation in a diligent and timely manner. If ArmorPoint’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants or employees, then ArmorPoint shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
3.4 Maintenance. Scheduled maintenance means any maintenance that is performed during a scheduled maintenance window or in which Customer is notified at least one day in advance. Notice of scheduled maintenance will be provided to the Customer’s Authorized Point of Contact. Emergency maintenance means any non-scheduled, non-standard maintenance required by ArmorPoint. No provision of this Agreement, any Service Agreement, or any Services description establishing service targets shall prevent ArmorPoint from conducting emergency maintenance where it is critically necessary for the integrity and security of the Services. During such emergency maintenance, Customer’s Authorized Point of Contact will receive notification of the initiation of the emergency maintenance and of its completion. Where the Customer’s Services include SOC monitoring, the ArmorPoint SOC will be relieved of its service targets during scheduled and emergency maintenance.
Customer Responsibilities:
3.5 Equipment. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, server, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
3.6 Customer shall provide reasonable assistance to ArmorPoint for performance under this Agreement, including helping troubleshoot technical issues within the Customer’s environments as well as any services provided by third parties to the Customer that may affect the delivery of the Services.
3.7 ArmorPoint services are dependent on the connectivity of the tools utilized. Customer is responsible for maintaining a proper Internet connection sized appropriately to handle the load of ArmorPoint tools and monitoring activities on their network and any End User network supported by the ArmorPoint services.
3.8 Provide ArmorPoint with accurate and up-to-date information including, the name, email, landline, and mobile numbers for all designated authorized Customer’s Points(s) of Contact (“POC(s)”).
3.9 Notify ArmorPoint at least twenty-four (24) hours in advance of any scheduled maintenance, network or system administration activity that would affect ArmorPoint’s ability to perform under this Agreement.
3.10 Maintaining current maintenance, supported versions and technical support contracts with Customer’s software and hardware vendors for any device affected by this Agreement.
3.11 Customer is responsible for maintaining ArmorPoint’s products installed on Customer’s networks on currently supported versions, where the Customer’s Services include an endpoint detection and response agent, for monitoring that the agent stays in an online state.
3.12 ArmorPoint-Provided Equipment. ArmorPoint may provide Customer hardware, appliances, or devices, including Network Sensors, for use in receiving the Services (“Provided Equipment”). Provided Equipment is not “Equipment” under Section 3.5. ArmorPoint retains all right, title, and interest in and to Provided Equipment. Customer shall use Provided Equipment solely for its intended purpose in connection with the Services and shall not modify, repurpose, relocate, transfer, encumber, or open Provided Equipment or use it for any other function. Customer shall exercise reasonable care in the custody of Provided Equipment and bears risk of loss or damage while it is in Customer’s possession. Within thirty (30) days of expiration or termination of the applicable Order Form, Customer shall return all Provided Equipment using the return shipping label provided by ArmorPoint; ArmorPoint may invoice Customer for any Provided Equipment not returned within that period or returned damaged beyond reasonable wear and tear. Customer agrees that ArmorPoint may remotely disable Provided Equipment upon expiration or termination of the applicable Order Form, or upon Customer’s use of Provided Equipment in violation of this Section.
4. Term; Termination
4.1 Term. Unless the applicable Order Form states otherwise, this Agreement shall commence as of the Effective Date and shall continue for one (1) year, after which it will automatically renew for successive one (1) year periods, unless either party provides prior written notice thirty (30) days in advance of the end of the then-current term (the “Term”), or until sooner terminated pursuant to the below.
4.2 Termination. Unless as expressly stated otherwise, either party may terminate this Agreement, effective upon written notice to the other party (the “Defaulting Party”), if the Defaulting party (a) materially breaches this Agreement and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach; or (b) (i) becomes insolvent or admits its inability to pay its debts generally as they become due; (ii) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) is dissolved or liquidated or takes any corporate action for such purpose; (iv) makes a general assignment for the benefit of creditors; or (v) has a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
4.3 Effects of Termination. Upon expiration or termination of this Agreement for any reason, Customer shall promptly pay all outstanding invoices immediately, and, except as provided in Section 6.5, each party shall return to the other party or destroy all Confidential Information of the other party. Customer shall cease all use of the Services and any ArmorPoint-provided software, shall uninstall and remove all ArmorPoint agents and provided software from Customer systems within the Offboarding Period, and acknowledges that any third-party software licenses provided as part of the Services terminate upon expiration or termination. The “Offboarding Period” means the thirty (30) day period beginning on the effective date of expiration or termination of the applicable Order Form, during which the Customer retains read and export access to the ArmorPoint platform for the purposes described in Section 6.5.
4.4 Survival. The rights and obligations of the parties set forth in Sections 1, 3.1, 3.12, 4.3, 5, 6, 7, 8, 9, 11, and 12, and any right or obligation of the parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive.
5. Fees
Customer will pay ArmorPoint the fees set forth in the applicable Order Form. Except as otherwise specified herein or in any applicable Order Form, (a) fees are quoted and payable in United States dollars and (b) payment obligations are non-cancelable and non-pro-ratable for a partial Term, and fees paid are non-refundable, except as expressly set forth herein. All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively “Taxes”). Customer will be solely responsible for payment of all Taxes, except for those taxes based on the income of ArmorPoint. Customer will not withhold any taxes from any amounts due to ArmorPoint.
6. Proprietary Rights; Confidentiality
6.1 Proprietary Rights. As between the parties, ArmorPoint exclusively owns all right, title and interest in and to the Services, and ArmorPoint’ Confidential Information, and Customer exclusively owns all right, title and interest in and to Customer’s Confidential Information.
6.2 Feedback. Customer may from time to time provide ArmorPoint suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Services. ArmorPoint will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. ArmorPoint will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.
6.3 Confidentiality. Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose, or permit to be disclosed, the same directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. However, either party may disclose Confidential Information (a) to its employees, officers, directors, attorneys, auditors, financial advisors and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement and (b) as required by law (in which case the receiving party will, to the extent legally permitted, provide the disclosing party with prior written notification thereof and with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law). Neither party will disclose the terms of this Agreement to any third party, except that either party may confidentially disclose such terms to actual or potential lenders, investors or acquirers. Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section or the License Restrictions, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.
6.4 Performance Metrics. Customer further agrees that ArmorPoint has the right to aggregate, collect and analyze data and other information relating to the performance of the Services and shall be free (during and after the Term hereof) to (i) use such data and other information to improve ArmorPoint’s products and services, and (ii) disclose such data and other information solely in an aggregated and anonymized format that does not identify Customer or any individual.
6.5 Customer Data; Retention, Export and Deletion. As between the parties, Customer owns all right, title, and interest in and to Customer Data. ArmorPoint holds Customer Data as custodian solely to provide the Services, and retains it only for the periods set out in the applicable Service Agreement or Order Form.
(a) Export. Customer may export Customer Data using the ArmorPoint platform's standard export functions. Export is limited to Customer Data then available in online storage and is subject to the platform's then-current volume and record limits. This is the sole method of export included in the Services. ArmorPoint has no obligation to extract, package, convert, or deliver Customer Data in bulk, in any other format, or by any other method.
(b) Restoration from Archive. Customer may request restoration of archived Customer Data by identifying the data set(s) and date range. Each restoration covers up to thirty (30) days of Customer Data (a "Restoration Set"); a longer period requires a separate restoration for each additional thirty (30) day range. A restored Restoration Set remains available in online storage for thirty (30) days from the date ArmorPoint notifies Customer that restoration is complete (the "Availability Period"), after which it returns to archived storage unless a further restoration is requested. Customer may export restored Customer Data under subsection (a) during the Availability Period.
(c) Fees. Restoration is included in the Services to the extent it does not materially exceed routine effort. Where a request, or a series of related requests, materially exceeds routine effort (including additional Restoration Sets and any extension of an Availability Period), ArmorPoint will notify Customer of the applicable fees in advance and will not perform the work until Customer approves them in writing through an Order Form or Contract Change Request.
(d) Expiration or Termination. During the Offboarding Period described in Section 4.3, Customer may continue to export Customer Data under subsections (a) and (b). Continued platform access, continued retention of Customer Data, or any export assistance beyond that period is available only under an Order Form or Contract Change Request and may be subject to additional fees. Following that period, ArmorPoint may delete Customer Data in the ordinary course of business. Notwithstanding Section 4.3, ArmorPoint's handling of Customer Data upon expiration or termination is governed by this Section 6.5.
6.6 Preservation; Legal Process and Data Requests.
(a) Customer Requests for Data. ArmorPoint will use commercially reasonable efforts to locate and make available Customer Data requested by Customer in connection with a legal, regulatory, law enforcement, or litigation-related matter, through the platform's standard export functions described in Section 6.5(a). ArmorPoint has no obligation to compile, review, interpret, validate, redact, convert, or otherwise produce Customer Data in any other form, and makes no representation as to its completeness, accuracy, or admissibility. Customer is solely responsible for producing the information required to satisfy any legal, regulatory, or contractual obligation, and for ensuring that any such production complies with applicable Law. ArmorPoint has no obligation to provide, and no liability for the unavailability of, Customer Data no longer retained under Section 6.5.
(b) Preservation. ArmorPoint has no obligation to preserve Customer Data beyond the Section 6.5 retention periods. Upon receipt of a request identifying the specific Customer Data and the preservation period, ArmorPoint will use commercially reasonable efforts to preserve, or retain a copy of, that data for that period, subject to technical feasibility and to the fee provisions of Section 6.5(c). ArmorPoint does not warrant that any particular method of preservation is available. Deletion in the ordinary course under Section 6.5, before ArmorPoint receives such a request, is not a breach and creates no liability for ArmorPoint.
(c) Third-Party Legal Process. If ArmorPoint receives a subpoena, court order, warrant, civil investigative demand, or similar legal process seeking Customer Data, ArmorPoint will, to the extent legally permitted, notify Customer so that Customer may seek a protective order or other relief at its own cost. ArmorPoint has no obligation to contest such process and may comply where legally compelled. Customer will reimburse ArmorPoint's reasonable costs of responding.
(d) Exclusions. This Section does not obligate ArmorPoint to provide digital forensics, incident root-cause investigation beyond the data recorded in the ArmorPoint platform, malware reverse-engineering, breach-notification or regulatory-response services, chain-of-custody attestation, declarations or affidavits of authenticity, or expert or litigation testimony. Those services are available only under a separate written engagement.
(e) Scope. Subsections (a) and (b) apply during the Term and during the Offboarding Period described in Section 4.3. This Section is subject to applicable Law and to any executed data protection addendum between the parties.
7. Representations and Warranties; Disclaimer
7.1 Mutual Warranties. Each party represents and warrants to the other party that: (a) it is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organization or chartering; (b) it has the full right, power and authority to enter into this Agreement, to grant the rights and licenses granted hereunder and to perform its obligations hereunder; (c) the execution of the applicable Order Form by its representative has been duly authorized by all necessary corporate action of the party; (d) it will comply with all applicable Laws in connection with this Agreement and the Services and (e) upon such party's Acceptance of this Agreement, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
7.2 ArmorPoint Warranties. ArmorPoint represents and warrants to Customer that it shall perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with commercially reasonable industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement.
7.3 Customer Warranties. Customer represents and warrants to ArmorPoint that it has all rights necessary to provide any information, data or other materials that it provides hereunder, and to permit ArmorPoint to use the same as contemplated hereunder.
7.4 DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS SECTION, (A) ARMORPOINT HEREBY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE UNDER THIS AGREEMENT, AND (B) ARMORPOINT SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. ALL SERVICES PERFORMED UNDER THIS AGREEMENT ARE PERFORMED “AS IS” AND WITHOUT WARRANTY AGAINST FAILURE OF PERFORMANCE INCLUDING, ANY FAILURE BECAUSE OF COMPUTER HARDWARE OR COMMUNICATION SYSTEMS, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, AND ANY APPLICABLE ORDER FORM.
8. Indemnification
8.1 Indemnification by ArmorPoint. ArmorPoint will defend Customer against any claim, demand, suit, or proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates a United States patent, copyright or trade secret and will indemnify Customer for any damages finally awarded against (or any settlement approved by ArmorPoint) Customer in connection with any such Claim; provided that (a) Customer will promptly notify ArmorPoint of such Claim, (b) ArmorPoint will have the sole and exclusive authority to defend and/or settle any such Claim (provided that ArmorPoint may not settle any Claim without Customer’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Customer of all related liability) and (c) Customer reasonably cooperates with ArmorPoint in connection therewith. If the use of the Services by Customer has become, or in ArmorPoint’s opinion is likely to become, the subject of any claim of infringement, ArmorPoint may at its option and expense (i) procure for Customer the right to continue using and receiving the Services as set forth hereunder; (ii) replace or modify the Services to make it non-infringing (with comparable functionality); or (iii) if the options in clauses (i) or (ii) are not reasonably practicable, terminate this Agreement and provide a pro rata refund of any prepaid fees corresponding to the terminated portion of the applicable subscription Term. ArmorPoint will have no liability or obligation with respect to any Claim if such Claim is caused in whole or in part by (A) compliance with designs, guidelines, plans or specifications provided by Customer; (B) use of the Services by Customer not in accordance with this Agreement; (C) modification of the Services by any party other than ArmorPoint without ArmorPoint’s express consent; (D) Customer Confidential Information or (E) the combination, operation or use of the Services with other applications, portions of applications, product(s) or services where the Services would not by itself be infringing (clauses (A) through (E), “Excluded Claims”). This Section states ArmorPoint’s sole and exclusive liability and obligation, and Customer’s exclusive remedy, for any claim of any nature related to infringement or misappropriation of intellectual property.
8.2 Indemnification by Customer. Customer will defend ArmorPoint against any Claim made or brought against ArmorPoint by a third party arising out of the Excluded Claims, and Customer will indemnify ArmorPoint for any damages finally awarded against (or any approved settlement) ArmorPoint in connection with any such Claim; provided that (a) ArmorPoint will promptly notify Customer of such Claim, (b) Customer will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Customer may not settle any Claim without ArmorPoint’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases ArmorPoint of all liability) and (c) ArmorPoint reasonably cooperates with Customer in connection therewith.
9. Limitation of Liability
EXCEPT FOR DAMAGES OR OTHER LIABILITIES ARISING OUT OF OR RELATING TO (A) A PARTY’S BREACH OF CONFIDENTIALITY, (B) A PARTY’S INDEMNIFICATION OBLIGATIONS, OR (C) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR (1) ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (2) EXCLUDING CUSTOMER’S PAYMENT OBLIGATIONS, ANY DIRECT DAMAGES, COSTS, OR LIABILITIES (IN THE AGGREGATE) IN EXCESS OF THE AMOUNTS PAID OR PAYABLE BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS PRECEDING THE INCIDENT OR CLAIM.
10. Insurance
ArmorPoint shall maintain commercial general liability and professional liability (errors & omissions) insurance in commercially reasonable amounts. Upon Customer’s written request, ArmorPoint will provide a certificate of insurance.
11. Non-Solicitation
During the Term of this Agreement and for a period of twelve (12) months thereafter, neither party shall, directly or indirectly, in any manner solicit or induce for employment any person who performed work under this Agreement who is then in the employment or otherwise engaged with the other party. A general advertisement or job listing shall not be construed as a solicitation under this Section. If either party breaches this Section, the breaching party shall, on demand, pay to the non-breaching party a sum equal to one year’s base salary or , in the case of an independent contractor, annual fees paid by the claiming party to that contractor.
12. General Terms
12.1 Force Majeure. Neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control including acts of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet (not resulting from the actions or inactions of ArmorPoint).
12.2 Relationship. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
12.3 Publicity. Neither party shall issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement, or otherwise use the other party’s trademarks, service marks, trade names, logos, symbols or brand names, in each case, without the prior written consent of the other party.
12.4 Notice. All notices required or permitted under this Agreement shall be in writing and sent to the recipient’s address set forth in the applicable Order Form or, where no Order Form exists, to the address associated with Customer’s account in the case of Customer, and will be deemed to have been duly given when received, if personally delivered; on the date sent, if transmitted by email, provided no bounce or non-delivery notification is received within twenty-four (24) hours; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
12.5 Entire Agreement. This Agreement, together with all Order Forms, Service Agreements, and any other schedules, exhibits, or documents incorporated herein by reference, constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. In the event of any conflict among the terms and provisions of the documents comprising this Agreement, the order of precedence is: (1) these Terms of Service; (2) the applicable Service Agreement; and (3) the applicable Order Form, provided that the fees, quantities, and term set out in the Order Form control over any conflicting commercial terms in these Terms of Service or the applicable Service Agreement. The version of these Terms of Service that applies to an Order Form is the version published at the ArmorPoint website as of the effective date of the then-current Term of that Order Form, as amended under Section 12.9. Where an End User (as defined in Section 2.3) uses or accesses the Services under an Order Form executed by the Ordering Customer, the version of these Terms of Service applicable to the End User is the version applicable to that Order Form.
12.6 Assignment; Delegation. Neither party may assign, transfer or delegate any or all of its rights or obligations under this Agreement, without the prior written consent of the other party; provided, that, upon prior written notice to the other party, either party may assign the Agreement to an Affiliate of such party or to a successor of all or substantially all of the assets of such party through merger, reorganization, consolidation or acquisition. No assignment shall relieve the assigning party of any of its obligations hereunder. Any attempted assignment, transfer or other conveyance in violation of the foregoing shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
12.7 No Third Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement.
12.8 Headings. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
12.9 Amendment; Waiver. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. Notwithstanding the foregoing, ArmorPoint may amend these Terms of Service from time to time by posting an updated version at the ArmorPoint website and providing at least thirty (30) days’ prior notice of the amendment by (i) a notice displayed within the ArmorPoint platform to users accessing the platform under Customer’s account, and (ii) email to the technical or billing contact identified on the applicable Order Form. An amendment takes effect for Customer on the first day of Customer’s next renewal Term following the notice period. Where an amendment materially and adversely affects Customer’s rights, Customer may, by written notice given before that renewal Term begins, elect to remain on the version of these Terms of Service in effect on the Effective Date of its then-current Order Form for the duration of that Order Form. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
12.10 Unenforceability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to affect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
12.11 Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Arizona without giving effect to any choice or conflict of law provision or rule that would cause the application of Laws of any jurisdiction other than those of the State of Arizona. Any legal suit, action or proceeding arising out of or related to this Agreement or the Services provided hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Arizona in each case located in the city of Phoenix and County of Maricopa, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.
12.12 Waiver of Jury Trial. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
12.13 Equitable Relief. Each party acknowledges that a breach by a party of Section 6 (Proprietary Rights; Confidentiality) may cause the non-breaching party irreparable damages, for which an award of damages would not be adequate compensation and agrees that, in the event of such breach or threatened breach, the non-breaching party will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance and any other relief that may be available from any court, in addition to any other remedy to which the non-breaching party may be entitled at law or in equity. Such remedies shall not be deemed to be exclusive but shall be in addition to all other remedies available at law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.
12.14 Attorney’s Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this Agreement, the prevailing party shall be entitled to recover its actual attorneys’ fees and court costs from the non-prevailing party.