These Terms of Sale (“Agreement”) form a binding legal contract between Shieldforce Corporation, a corporation incorporated under the laws of the State of Delaware (“Company”) and the customer named on an Order referencing and incorporating this Agreement (“Customer”), and the parties agree as follows:
1.1 Licensed Software. Customer is purchasing software licenses as specified in the Order (“Licensed Software”). The license and warranty terms for Customer’s use of the Licensed Software are provided in the Shieldforce End User License Agreement ("EULA") that Customer must accept prior to use upon login to the Shieldforce management system. The Licensed Software may include third-party and open-source products (“Third Party Software”) subject to terms that Company will provide and pass-through to Customer via the EULA.
1.2 Services. Company will provide the support, maintenance and supplemental services (“Services”) that Customer purchases in the applicable Order. Support Services generally include telephone, email and online support.
2.1 Fees and Expenses. Customer shall pay Company the license, and Services Fees in the amounts set forth in the applicable Order. Company invoices license Fees annually in advance. Company shall provide Customer with written notice of renewal no later than sixty (60) days prior to the end of the current Subscription Term. Company invoices Services Fees monthly in arrears. Customer will reimburse Company for any reasonable out-of-pocket expenses actually incurred by Company and approved in advance by Customer. Reimbursable expenses may include travel and other expenses incidental to the Services performed.
2.2 Payment Terms. Customer shall pay all undisputed invoiced amounts net thirty (30) days from the date of receipt of the invoice. Customer shall pay all applicable taxes associated with the applicable Order.
3.1 COMPANY MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SHIELDFORCE PAAS SYSTEM OR THE LICENSED SOFTWARE, OR ANY OTHER MATERIALS OR SERVICES PROVIDED HEREUNDER. COMPANY SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE, AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE PAAS SYSTEM AND LICENSED SOFTWARE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.
4.1 IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, RELIANCE, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT,DATA OR GOODWILL, FOR ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ITS SUBJECT MATTER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE EVEN IF THE PARTY WITH ALLEGED LIABILITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
4.2 IN NO EVENT SHALL EITHER PARTY’S LIABILITY TO THE OTHER EXCEED THE AGGREGATE AMOUNTS PAID OR OWED BY CUSTOMER TO COMPANY UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE FIRST OCCURRENCE OF THE EVENTS GIVING RISE TO ANY CLAIM.
5.1 Term. Unless earlier terminated herein, this Agreement shall be effective as of the Order Effective Date and will continue until the expiration of the Subscription Term (“Initial Term”). If no Subscription Term is specified in the Order, the Initial Term shall be twelve (12) months. Upon expiration of the Initial Term, this Agreement shall be automatically renewed for successive one (1) year terms (each a “Renewal Term”), unless terminated by either Party upon thirty (30) days’ notice prior to such renewal date or unless otherwise terminated by its terms. The Initial Term plus all Renewal Terms up until the date of termination shall collectively be referred to as the “Term” of this Agreement.
5.2 Termination for Breach. Either Party may terminate this Agreement upon written notice if the other Party materially breaches this Agreement, and fails to correct such breach within thirty (30) days following written notice specifying the breach.
6.1 Governing Law; Jurisdiction. This Agreement shall be governed by the laws of the State of Delaware without giving effect to its choice or conflict of law provisions. All disputes and/or legal proceedings related to the Agreement shall be brought and maintained exclusively in Federal or state courts located in Delaware, and the parties agree to personal jurisdiction and convenient forum therein. The parties shall attempt in good faith to resolve any controversy, claim, or dispute of any nature relating to, this Agreement (a “Dispute”) promptly by negotiation between executives who have authority to settle the Dispute. In the event of a failure to so resolve a Dispute, the parties agree to use a mutually agreed alternative dispute resolution technique, such as mediation, prior to resorting to arbitration or litigation. Each party agrees to pay all reasonable costs and expenses that the other prevailing party incurs in successfully enforcing or defending this Agreement, including reasonable attorneys' fees.
6.2 Independent Contractor. The parties agree that each is an independent contractor and the Agreement does not create any employment relationship for taxation or any other purpose. Neither party may bind the other to any agreement with a third party, or incur any obligation or liability on behalf of the other party. This Agreement does not constitute a partnership, agency or joint venture.
6.3 Assignment. Customer may not assign or transfer this Agreement without the prior written consent of Company hereto; such consent not to be unreasonably withheld. Notwithstanding the foregoing, either party may assign this Agreement to a third party without requiring consent from the non-assigning party in the event of a sale, merger or other divestiture of substantially all of that assigning party’s assets to such third party. This Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns. Any act in derogation of the foregoing shall be null and void. Nothing in the Agreement shall create any rights in any third-party beneficiaries.
6.4 Notice. All notices shall be given or made upon the respective parties in writing and shall be deemed to be given as of the day such notice is received by the other party.
6.5 Severability. If any provision of the Agreement is deemed unenforceable, such provision shall be severable and be deemed null and void, and the remainder of the Agreement shall remain in full force and effect.
6.6 No Waiver. The failure of either party to insist upon the performance of any provision herein or to exercise any right or privilege granted to it hereunder will not be construed as a waiver of such provision, and the same will continue in full force.
6.7 Entire Agreement. This Agreement, together with any Orders or other attachments, constitutes the entire agreement between the parties. Any revision or modification of the Agreement shall be effective only if it is in writing, and is signed by an authorized representative of both parties.
6.8 Construction. The paragraph headings in the Agreement are to be given no legal effect. This Agreement may be executed in counterparts, via written, electronic or scanned signature, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same Agreement.
All Plans Come With the ShieldForce Advantage
Sign Up For Your 30 Day Free Trial