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Subscription and Services Agreement
This Subscription and Services Agreement (the "Agreement") is entered into as of
, 2020 (the "Effective Date") and is by and between SecureLink, Inc., a Delaware
ipal place of business at 11402 I'M 2244 RD, ustin, Texas 7738
4,4 0 /
located at (.29 .._ � '`�
y, enurel,ink and C rnpany may be referred to as the "Parties" or in
on
pr
cure and
and .
('Grmpanr'")a Collective
the singular as "Party".
1. Background. SecureLink provides a software solution for remote computer access and
support (the "Software"). This Agreement sets forth the terms pursuant to which SecureLink
will license the Software to Company and provide other related services set forth in this
Agreement and the Subscription Order executed contemporaneously with this Agreement (the
"Subscription Order").
2. Software License.
2.1 Software icen. Subject to the timely payment by Company of all applicable fees,
SecureLink hereby grants to Company, and Company hereby accepts, a limited, non-exclusive,
term -limited, non -transferable, non-sublicensable, worldwide license to use and access the
Software during the Term (defined below) solely (i) in connection with Company's normal
business operations, (ii) in accordance with the documentation provided with the Software (the
"Documentation"), and (iii) subject to any limitations set forth in the Subscription Order. If the
Subscription Order does not specify that the Software will be provided on a hosted basis, then
the grant set forth above includes the right for Company to install a single copy of the Software
solely at Company's site. If the Software is provided on a SecureLink server then the Software
may only be used on the server on which it is provided. Notwithstanding the foregoing, if
Company has licensed the SecureLink for Vendors Software (as specified in the Subscription
Order), Company may install the portion of the software on Company's customers' systems that
enables Company to remotely access its customers' systems, all of which as set forth more fully
in the Documentation (the "Gatekeeper Software"). The installation and use of the Gatekeeper
Software is subject to the license agreement provided with the Gatekeeper Software.
2.2 Use. by Employees and Contractors. Employees or authorized independent contractors of
Company may use the Software provided that all such use shall be solely for the benefit of
Company and in accordance with the terms and conditions of this Agreement. Company shall
ensure that its employees and any independent contractors comply with the terms and conditions
contained in this Agreement. Company shall remain fully liable for all acts and omissions of its
employees and independent contractors, as if such acts and omissions had been committed by
Company itself.
2.3 Limitations. Except as otherwise authorized in writing by SecureLink, Company shall
not (and shall not permit any third party to): (i) decompile, reverse engineer, or disassemble the
Software or otherwise reduce the Software to a human perceivable form in whole or in part; (ii)
decrypt, circumvent or disable any security or other technological features or measures of the
Software; (iii) access or attempt to access the Software in order to build a competitive product or
service; (iv) copy, publish, release, rent, lease, loan, sell, distribute, or transfer the Software or
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Documentation; (iv) frame or mirror any content forming part of the Software; (v) use or permit
the use of the Software for commercial time-sharing arrangements or providing service bureau,
data processing, rental, or other services to any third party; (vi) reproduce the Software or
Documentation for the use or benefit of anyone other than Company; (vii) alter, modify, adapt,
translate, or create derivative works based upon the Software or Documentation either in whole
or in part; (viii) remove any copyright notice or other proprietary rights notices that may appear
in or on the Software or Documentation; (ix) perform any security or penetration testing of the
Software; or (x) distribute any virus, trojan horse, or other malicious code via the Software.
Company will use the Software and Documentation in compliance with all applicable laws and
regulations, and refrain from any unethical conduct or any other conduct that tends to damage the
reputation of SecureLink. However, where Company has other rights under statute that make
any portion of the foregoing contractual prohibition void, Company agrees to provide
SecureLink with reasonably detailed information regarding any intended disassembly or de -
compilation. Company may not access the Software if Company is a direct competitor of
SecureLink. With any mission -critical activity, the Software should not be Company's only
means of receiving or providing remote support, and Company acknowledges and agrees that it
is responsible for taking steps to protect against Software and system failures, including (without
limitation) providing back-up remote access methods. Notwithstanding romanette (ix)
above, routine security scanning or testing of the Software ("Testing") shall be permitted
provided that Company complies with the following requirements: (a) Testing must be done
during times and at frequencies as agreed to by SecureLink, which shall be requested by
Company submitting a ticket to SecureLink and providing the information requested by
SecureLink; (b) Company must provide all security findings related to the Software to
SecureLink; (c) Company must treat all results of the Testing as SecureLink Confidential
Information and will not make such security findings available to any other party except in
accordance with Section 7.5 below; (d) only conduct automated Testing on a non -production
instance of the Software (e) if Company wishes to use a third -party for Testing, Company must
first obtain SecureLink's approval, ensure that the proper confidentiality agreements are in place
with these third -parties prior to providing them the Software for Testing, and ensure that the third
party complies with the restrictions in this Agreement, including those on non -disclosure; and (f)
Company complies with all other restrictions in this Agreement including those in romanettes (i)
and (ii) above.
2.4 Reservation of Rights. The Software provided under this Agreement is licensed, and not
sold. SecureLink (and its licensors) retains all title, interest, and ownership rights in and to the
Software and Documentation and reserves all rights not expressly granted to Company in this
Agreement. If Company provides any suggestions, ideas, enhancement requests, feedback
(including identifying potential errors and improvements), recommendations or other
information relating to the Software to SecureLink (collectively "Feedback"), then SecureLink
may use the Feedback without payment or restriction. The SecureLink name, the SecureLink
logo, and the product names associated with the Software are trademarks of SecureLink, and no
right or license is granted to use them. Company will not accrue any residual rights to the
SecureLink Software or any related technology, including any rights to the underlying
intellectual property rights.
3. Services; Updates.
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3.1 Services. SecureLink will provide Company with the implementation, training, and
support services identified in the Subscription Order (collectively, the "Support Services").
3.2 Updates. SecureLink may update the Software or Documentation from time to time.
During the Term, SecureLink will provide Company with all updates to the Software and
Documentation that it makes generally commercially available. Company may decide whether
to install updates to the Software unless SecureLink expressly notifies Company that a particular
update is mandatory. The terms "Software" and "Documentation" shall include all updates
provided to Company by SecureLink under this Section 3.2.
3.3 Additional Services. Company may engage SecureLink from time to time in the future to
provide additional services by entering into an additional Subscription Order or Statement of
Work signed by both parties that references this Agreement and sets forth the applicable fees and
additional services to be provided (the "Additional Services"). All additional Subscription
Orders and Statements of Work entered into in accordance with this Section 3.3 shall be subject
to the terms of this Agreement. Additional Services and Support Services are collectively
referred to as the "Services."
4. Account Information and Data
4.1 "Company Data" means any data, information or material provided or submitted to the
Software by the Company in the course of using the Software.
4.2 Intentionally omitted.
5. Fees.
5.1 Fees. Upon execution of the Subscription Order, Company will pay SecureLink the
license fees set forth in the Subscription Order for the Initial Term (as defined below). The fees
for each Renewal Term (as defined below) will be calculated in accordance with the Subscription
Order and must be paid by Company at least thirty days prior to the start of the Renewal Term.
Fees for Renewal Terms are typically determined based on the usage of the Software during the
preceding Initial or Renewal Term. Accordingly, any increase in Company's use of the Software
(e.g., more Concurrent Connections or use by more Vendors, as applicable) will require payment
of additional fees for the subsequent Renewal Term in accordance with the Subscription Order.
SecureLink may update the per -unit pricing for any Renewal Term by providing Company
written notice at least sixty days prior to the end of the then -current Term. The following terms
may be used in the Subscription Order in calculating the applicable fees:
(i) "Concurrent Connections" means the total number of simultaneous connections on
Company's installation of the Software at any one time.
(ii) A "Vendor" means a single entity that is a vendor of Company using the Software to
access Company's systems.
(iii) "Average Peak Usage" for any given Initial or Renewal Terms means the number
calculated by averaging the peak number of Concurrent Connections during the three highest
months of the applicable Initial or Renewal Term.
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5.2 Service lees. Company will pay any service fees for Services provided by SecureLink in
accordance with the Subscription Order or the applicable Statement of Work. Company will
reimburse SecureLink for any pre -approved, out-of-pocket expenses incurred by SecureLink in
connection with performing any Services at Company's site.
5.3 Payment of Fees, All fees and amounts set forth in this Agreement are exclusive of
taxes. Company shall be solely responsible for all sales, service, value-added, use, excise,
consumption, and any other taxes, duties, and charges of any kind, if any, imposed by any
federal, state, or local governmental entity on any amounts payable by Company under this
Agreement, other than any taxes with respect to SecureLink's income, revenues, gross receipts,
personnel, real or personal property, or other assets. Company shall pay interest on all amounts
not paid when due, calculated daily and compounded monthly at the lesser of the rate of 1.5%
per month or the highest rate permissible under applicable law. Company shall also reimburse
SecureLink for all reasonable costs incurred in collecting any amounts not paid when due,
including any attorneys' fees.
6. Term and Termination.
6.1 Term. Unless otherwise set forth in the Subscription Order, the initial term of this
Agreement will begin on the Effective Date and continue for one calendar year (the "Initial
Term"). This Agreement will automatically renew for subsequent one-year periods (each a
"Renewal Term") unless either Party gives the other Party written notice of termination at least
sixty days prior to the end of the then -current Term. The initial 'Germ together with all Renewal
Terms are referred to in this Agreement as the "Term."
6.2 Termination. Either Party may terminate this Agreement by written notice if the other
Party materially breaches this Agreement and fails to cure the breach within thirty days of
receiving written notice specifying the breach in reasonable detail.
6.3 Survival. Sections 2,2, 2.3, 2.4, and 8.4 and Articles 4, 5, 6 7 9 10 and 11 shall survive
any termination or expiration of this Agreement, regardless of the cause of termination.
7. Confidentiality.
7.1 Confidentiality. "Confidential Information" means any confidential or proprietary
information of a Party (the "Discloser") that is disclosed in any manner to the other Party (the
"Recipient") in connection with this Agreement and that at the time of disclosure either (i) is
marked as being "Confidential" or "Proprietary," (ii) is otherwise reasonably identifiable as the
confidential or proprietary information of Discloser, or (iii) under the circumstances of
disclosure should reasonably be considered as confidential or proprietary information.
SecureLink's "Confidential Information" shall include all features and functionality of the
Software and Documentation and the results of any benchmark or other tests of the Software.
Recipient shall not disclose Discloser's Confidential Information to any third party without
Discloser's prior written approval; provided, that, Recipient may disclose the Confidential
Information to its employees, contract personnel, subcontractors, officers, directors,
shareholders, consultants, agents, attorneys, accountants, or advisors (collectively,
"Representatives") who need to know such information for the purposes of this Agreement,
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provided that such Representatives shall be informed by Recipient of the confidential nature of
the Confidential Information and shall have agreed in writing to terms and conditions as
protective of the Confidential Information as those in this Agreement. Recipient shall use the
same procedures to protect Discloser's Confidential Information as it uses to protect its own
Confidential Information, but in any event no less than commercially reasonable procedures.
7.2 Exclusions. The restrictions under Section 7.1 above shall not apply to information that:
(i) Recipient independently develops without use of Discloser's Confidential Information; (ii)
was, at the time of disclosure, already known to Recipient without restriction on use or
disclosure and was not obtained from Discloser; (iii) is lawfully disclosed to Recipient by a third
party who is not required to maintain its confidentiality; or (iv) is approved for release by
Discloser.
7.3 Ownership of Confidential Information. The Confidential Information of Discloser is
and will remain the property of Discloser. Nothing in this Agreement grants or confers any
rights to Recipient by license or otherwise in Discloser's Confidential Information, except as
expressly provided in this Agreement.
7.4 Remedies Upon Breach. Recipient agrees that in the event of a breach or threatened
breach of this Agreement, Discloser may have no adequate remedy in money damages and,
accordingly, will be entitled to seek an injunction against such breach, in addition to any other
legal or equitable remedies available to Discloser.
7.5 Legally Required Disclosure. If Recipient is legally required to disclose any of
Discloser's Confidential Information, then it may do so provided that Recipient (i) provides
prompt written notice to Discloser (to the extent permitted by law), (ii) provides all reasonably
requested assistance to Discloser in attempting to limit the scope of the disclosure, and (iii) only
discloses Discloser's Confidential Information to the extent actually required by law.
8. Warranties and Disclaimers.
8.1 Mutual Representations and Warranties. Each Party represents and warrants that: (i) it
has the legal power to enter into this Agreement; (ii) the signatory hereto has the authority to
bind the applicable organization; and (iii) when executed and delivered, this Agreement will
constitute the legal, valid, and binding obligation of such Party, enforceable in accordance with
its terms, subject to bankruptcy, insolvency, moratorium, reorganization, or similar laws
affecting the rights of creditors generally and the availability of equitable remedies.
8.2 Software Warranty,. SecureLink represents and warrants that the Software will operate in
accordance with the Documentation in all material respects. COMPANY'S EXCLUSIVE
REMEDY, AND SECURELINK'S ENTIRE LIABILITY, FOR ANY BREACH OF THIS
SECTION 8.2 IS LIMITED TO, AT SECURELINK'S OPTION, REPAIR OR
REPLACEMENT OF ANY MATERIAL, REPRODUCIBLE IMPAIRMENT TO THE
FEATURES AND FUNCTIONALITY IN THE SOFTWARE (OR DEFECTIVE
PORTION OF THE SOFTWARE), OR REFUNDING THE FEES PAID TO
SECURELINK FOR THE DEFICIENT SOFTWARE FOR THE THEN -CURRENT
INITIAL OR RENEWAL TERM, IN WHICH CASE, COMPANY SHALL
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IMMEDIATELY RETURN AND CEASE USE OF ALL COPIES OF THE SOFTWARE
AND DOCUMENTATION.
8.3 Service Warrant, SecureLink represents and warrants that the Services will be
performed in a professional and workmanlike manner in accordance with generally accepted
industry standards. COMPANY'S EXCLUSIVE REMEDY, AND SECURELINK'S
ENTIRE LIABILITY, FOR ANY BREACH OF THIS SECTION 8.3, OR ANY CLAIM
BASED ON THE FAILURE OR UNAVAILABILITY OF THE SERVICES, IS LIMITED
TO RE -PERFORMANCE OF THE SERVICES OR, AT SECURELINK'S OPTION,
REFUNDING THE FEES PAID TO SECURELINK FOR THE DEFICIENT SERVICES.
8.4 DISCLAIMERS. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN
AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, SECURELINK EXPRESSLY
DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, AND
GUARANTEES WITH RESPECT TO THE SOFTWARE, DOCUMENTATION, AND THE
SERVICES, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, USAGE OF TRADE,
COURSE OF DEALING, COURSE OF PERFORMANCE, PRIOR ORAL OR WRITTEN
STATEMENTS, OR OTHERWISE, INCLUDING ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT
LIMITING THE FOREGOING, SECURELINK DOES NOT WARRANT (I) THAT THE
SOFTWARE, DOCUMENTATION, OR THE SERVICES WILL BE FREE FROM ANY
INTERRUPTIONS, DELAYS, INACCURACIES, SERVER DOWN -TIME, ERRORS, OR
OMISSIONS, (II) THE PERFORMANCE OR RESULTS COMPANY MAY OBTAIN BY
RECEIVING THE SERVICES OR USING THE SOFTWARE OR DOCUMENTATION, OR
(III) THE SOFTWARE, DOCUMENTATION, OR THE SERVICES WILL MEET
COMPANY'S REQUIREMENTS. NO REPRESENTATION OR OTHER AFFIRMATION OF
FACT, INCLUDING STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE,
OR PERFORMANCE OF THE SOFTWARE, DOCUMENTATION, OR ANY SERVICES,
NOT CONTAINED IN THIS AGREEMENT SHALL BE DEEMED TO BE A WARRANTY,
CONDITION, REPRESENTATION, OR GUARANTY BY SECURELINK. COMPANY
SHALL BE SOLELY RESPONSIBLE FOR MAINTAINING ALL APPROPRIATE
BACKUPS OF ITS FILES AND DATA.
9. LIMITATIONS OF LIABILITY.
9.1 LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED UNDER
APPLICABLE LAW AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN
THIS AGREEMENT OR ELSEWHERE: (I) IN NO EVENT SHALL THE AGGREGATE
LIABILITY OF THE SECURELINK PARTIES (DEFINED BELOW) EXCEED THE SUMS
PAID BY COMPANY TO SECURELINK HEREUNDER IN THE TWELVE MONTHS
IMMEDIATELY PRECEDING THE INCIDENT(S) GIVING RISE TO THE CLAIM(S); (II)
IN NO EVENT SHALL ANY SECURELINK PARTY BE LIABLE TO ANY COMPANY
PARTY (DEFINED BELOW) OR THIRD PARTY FOR, AND COMPANY AND EACH
COMPANY PARTY HEREBY WAIVES ANY CLAIM AGAINST ANY SECURELINK
PARTY FOR, ANY FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL,
EXEMPLARY, SPECIAL, LOSS OF DATA, OR LOST PROFITS DAMAGES OF ANY KIND
(INCLUDING ANY LOST REVENUE, PROFITS, SAVINGS, BUSINESS OPPORTUNITIES,
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USE, OR GOODWILL) HOWEVER ARISING, REGARDLESS OF WHETHER SUCH
DAMAGES ARE FORESEEABLE AND WHETHER SECURELINK HAS BEEN ADVISED
OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES.
THE LIMITATIONS OF LIABILITY ABOVE SHALL APPLY: (A) TO ANY CLAIM
ARISING UNDER OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER
OF THIS AGREEMENT; (B) REGARDLESS OF THE LEGAL OR EQUITABLE THEORY
UNDER WHICH THE CLAIM ARISES, INCLUDING BREACH OF CONTRACT, TORT
(INCLUDING NEGLIGENCE), INDEMNITY, STRICT LIABILITY, OR OTHERWISE; (C)
REGARDLESS OF WHETHER SECURELINK HAS BEEN ADVISED OF THE
POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES; AND (D) REGARDLESS OF IF
THE REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
THE DISCLAIMER OF WARRANTIES AND LIMITATIONS OF LIABILITY CONTAINED
IN THIS AGREEMENT ARE FUNDAMENTAL PARTS OF THE BASIS OF
SECURELINK'S BARGAIN HEREUNDER, AND COMPANY ACKNOWLEDGES THAT
SUCH PROVISIONS REPRESENT A REASONABLE ALLOCATION OF RISK.
9.2 Jurisdictions Preventing Limitation or Exclusion cal` Warr at t or Liability. Since some
states do not allow certain limitations or exclusions of warranties or liability, some or all of the
limitations and exclusions set forth in Sections 8.4 and 9.1 above may be held unenforceable as
applied to Company. In such cases, SecureLink's liability shall be limited to the greatest extent
permitted under applicable law.
10. Indemnification
10.1 Claims Related to the Service or Service Deliver able. Provided that Company complies
with the procedures set forth in Section 10.5 and subject to Section 10.2, SecureLink will, at
SecureLink's expense, defend and/or settle any claim, suit or proceeding brought by a third party
against Company or Company's officers, directors, employees, agents and affiliates (collectively,
"Company Parties") alleging that the Software, as provided by SecureLink, infringes any
copyright, trademark, trade secret or patent protectable under U.S. law that is issued as of the
date of this Agreement. In addition, SecureLink will pay any judgment awarded against
Company or any settlement amount agreed to by SecureLink and, subject to Section 10.5, any
authorized expenses incurred by Company. This indemnity shall be the Company's exclusive
remedy with respect to any claim of infringement.
10.2 Exclusions. SecureLink will have no obligation under Section 10.1 with respect to any
claim of infringement arising out of or based upon: (i) Company Data used with the Software or
otherwise, (ii) use of the Software in any manner other than as expressly authorized and
contemplated in this Agreement and the Documentation, or (iii) the combination of the Software
with any other software, hardware, material, or processes.
10.3 Injunction, If SecureLink reasonably believes that a claim of infringement relating to the
Software may arise, SecureLink may, without limiting SecureLink's indemnity obligations
hereunder, procure the right for Company to continue to use the Software or modify the Software
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in a functionally equivalent manner so as to avoid such claim of infringement. If the foregoing
options are not available on commercially reasonable terms and conditions, SecureLink may
immediately terminate the Agreement and refund to Company a prorated amount of prepaid fees
for access to the Software actually paid by Company for the remainder of the then -current Initial
or Renewal Term.
10.4 Claims Related to Company Data. Provided that SecureLink complies with the
procedures set forth in Section 10.5, Company will, at Company's expense, defend and/or settle
any claim, suit or proceeding brought by a third party against SecureLink or SecureLink's
officers, directors, employees, agents and affiliates (collectively, "SecureLink Parties") and
arising out of or related to Company Data or any breaches of Section 2.3. In addition, Company
will pay any judgment awarded against SecureLink or any settlement amount agreed to by
Company and, subject to Section 10.5, any authorized expenses incurred by SecureLink.
10.5 Procedure. If one Party (the "Indemnitee") receives any notice of a claim or other
allegation with respect to which the other Party (the "Indemnitor") has an obligation of
indemnity hereunder, then the Indemnitee will, within 15 days of receipt of such notice, give the
Indemnitor written notice of such claim or allegation setting forth in reasonable detail the facts
and circumstances surrounding the claim. The Indemnitee will not make any payment or incur
any costs or expenses with respect to such claim, except as requested by the Indemnitor or as
necessary to comply with this procedure. The Indemnitee will not make any admission of
liability or take any other action that limits the ability of the Indemnitor to defend the claim. The
Indemnitor shall immediately assume the full control of the defense or settlement of such claim
or allegation, including the selection and employment of counsel, and shall pay all authorized
costs and expenses of such defense. The Indemnitee will fully cooperate, at the expense of the
Indemnitor, in the defense or settlement of the claim. The Indemnitee shall have the right, at its
own expense, to employ separate counsel and participate in the defense or settlement of the
claim. The Indemnitor shall have no liability for costs or expenses incurred by the Indemnitee,
except to the extent authorized by the Indemnitor or pursuant to this procedure.
11. General Provisions.
11.1 Relationship of the Parties; Third Party Beneficiaries. This Agreement does not create a
partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the
parties. There are no third -party beneficiaries to this Agreement.
11.2 Force Majeure. Neither Party is responsible for delays or failures to perform its
responsibilities under this Agreement (other than payment of money due) due to causes beyond
its reasonable control, including: acts of God; acts of government; flood; fire; earthquakes;
tornadoes; civil unrest; acts of terror; strikes or other labor problems; computer,
telecommunications, internet service provider, or hosting facility failures or delays involving
hardware, software, or power systems; denial of service attacks; or power failures._
11.3 Attorney's Fees. The prevailing Party in disputes concerning this Agreement shall be
entitled to the costs of collections and enforcement, including but not limited to reasonable
attorney's fees, court costs and all necessary expenses. Notwithstanding anything in this
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Agreement to the contrary, in the event of Company's bankruptcy or insolvency, SecureLink will
be entitled to recover from Company SecureLink's costs and expenses, including, without
limitation, reasonable attorneys' fees and costs, that SecureLink incurs enforcing and/or
otherwise protecting SecureLink's rights and remedies under this Agreement or amendments and
modifications thereto.
11.4 Company Trademarks. Company agrees that SecureLink can list Company on
SecureLink's website as a customer of SecureLink and hereby grants SecureLink a limited, non-
exclusive license to copy and display Company's logo or trademark on SecureLink's website in
connection with its customer list. SecureLink will provide samples of use upon request and will
modify the use as reasonably requested by Company.
11.5 Notices. Any notices or other communications required to be given in writing under this
Agreement will be effective when received by email by the designated contact of either Party, or
upon personal or courier delivery, or three days after deposit into the U.S. mail (certified mail,
return receipt requested), addressed to the Party at the address set forth above, or at another
address as a Party may indicate by written notice to the other Party.
11.6 Waiver and Cumulative Remedies. No failure or delay by either Party in exercising any
right under this Agreement shall constitute a waiver of that right. Other than as expressly stated
herein, the remedies provided are in addition to, and not exclusive of, any other remedies
available at law or in equity.
11.7 Invalidity. If any provision of this Agreement is determined to be illegal or
unenforceable, then the provision will be deemed to be restated to reflect as nearly as possible
the original intentions of the parties in a manner that complies with applicable law. The
remainder of this Agreement, if capable of substantial performance, will remain in full force and
effect.
11.8 Assignment. Neither Party may assign this Agreement or any of its rights or obligations
hereunder, whether by operation of law or otherwise, without the prior written consent of the
other Party, which shall not be unreasonably withheld. Notwithstanding the foregoing,
SecureLink may assign this Agreement in its entirety, without the consent of Company, in
connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all
of SecureLink's assets. Any attempt by a Party to effect an assignment in breach of this Section
11.8 shall be void. Subject to the foregoing, this Agreement shall be binding upon and inure to
the benefit of the parties, their respective successors, and permitted assigns.
11.9 Governing Law; Venue. This Agreement, and all claims arising out of or relating to its
subject matter, shall be exclusively governed by and construed under the internal laws of the
State of Texas, without regard to its conflicts of laws rules. The United Nations Convention on
Contracts for the International Sale of Goods is expressly disclaimed. Any action, suit, or other
legal proceeding that is commenced to resolve any matter arising under or relating to this
Agreement shall be commenced only in the state and federal courts located in Travis County,
Texas. Company consents to the personal jurisdiction of such courts and hereby waives any
objection to venue of such courts.
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11.10 Entire Agreement; Amendment. This Agreement, including the Subscription Order,
constitutes the entire agreement between the parties with respect to the subject matter set forth
herein, and supersedes all prior and contemporaneous agreements, proposals, or representations,
written or oral, concerning its subject matter. No terms, provisions, or conditions of any
purchase order, acknowledgement, check, or other business form that Company may use in
connection with the acquisition or licensing of the Service or Software will have any effect on
the rights, duties, or obligations of the parties under this Agreement, regardless of any failure of
SecureLink to object to such terms, provisions, or conditions. To the extent there is any conflict
between this Agreement and the Subscription Order, a Statement of Work, or Exhibit, this
Agreement shall control unless the Subscription Order, Statement of Work, or Exhibit expressly
states otherwise by setting forth the provisions of this Agreement that are superseded. As used
in this Agreement, the terms "including," "include," and "includes" are not limiting and shall be
deemed to be followed by the phrase "without limitation." Use of the terms "hereunder,"
"herein," "hereby," and similar terms refer to this Agreement. No modification, amendment, or
waiver of any provision of this Agreement shall be effective unless in writing and signed by both
parties hereto.
11.11 Export. Company agrees to comply with all U.S. export and re-export control laws and
regulations and the U.S. economic sanctions, including the Export Administration Regulations
("EAR") administered by the U.S. Department of Commerce, the laws and regulations
administered by the U.S. Department of the Treasury's Office of Foreign Assets Control, and the
International Traffic in Arms Regulations ("ITAR") administered by the U.S. Department of
State, and not cause SecureLink to violate the same. Notwithstanding anything contained in this
Agreement to the contrary, Company shall not export or import, directly or indirectly, the
Software or information pertaining thereto to or from any country (such as Cuba, Iran, North
Korea, Sudan, or Syria), to which such export or import is restricted or prohibited or as to which
such government or any agency thereof requires a license or other governmental approval at the
time of export or import without first obtaining such license or approval. Furthermore, Company
agrees to cooperate as requested by SecureLink to ensure compliance with any such export or
import restrictions. Company agrees to hold harmless and defend, to the fullest extent permitted
by law, at SecureLink's option, SecureLink and its successors and assigns from and against any
fines, penalties, judgments, settlements, and reasonable documented costs, including attorney's
fees, that may arise as a result of a failure to comply with this Section 1 1.1 1 by Company's
agents, officers, directors or employees.
11.12 Governmental Use. If Company is a branch or agency of the United States Government
or a contractor thereto, then the following provision applies. The Software and Documentation
are comprised of "commercial computer software" and "commercial computer software
documentation" as such terms are used in 48 C.F.R. 12.212 (Sept. 1995) and are provided to the
Government (i) for acquisition by or on behalf of civilian agencies, consistent with the policies
set forth in 48 C.F.R. 12.212; or (ii) for acquisition on behalf of the Department of Defense
consistent with the policies set for the in 48 C.F.R. 227.7202-1 (Aug. 1995) and 227.7202-3
(Aug. 1995).
[Signature Page to Follow]
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IN WITNESS WHEREOF, the parties have entered into this the Subscription and
Services Agreement as of the Effective Date.
Company
By:
Name:
Title:
Date:
CITY CONTRACT NO:
RESOLUTION NO:"' 1`
SecureLink, I
By:
Name:
Title:
Date:
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