This Agreement governs access to, and use of, the Services. Customer may access and use the Services during the Term in accordance with this Agreement. To utilize the Services, PreVeil may make available software for installation on Customer’s local server, desktop, mobile and/or other device. When Services include such software, the Services may update automatically on Customer’s device once a new version or feature is available.
Customer will pay PreVeil all amounts invoiced to Customer as set forth on the Order Form (“Fees”). Unless otherwise specified on the Order Form, Customer will pay all Fees within thirty (30) days of the date of the applicable invoice. The Fees payable to PreVeil under this Agreement do not include any taxes, customs, duties, fees or other amounts assessed or imposed by any governmental authority other than taxes imposed on PreVeil’s net income. Customer will pay or reimburse PreVeil for all such amounts upon demand or provide certificates or other evidence of exemption. All amounts payable by Customer under this Agreement will be made without set off or counterclaim, and without any deduction or withholding. For past due amounts, PreVeil may charge Customer a late fee equal to 1.5% per month or the maximum amount allowed by applicable law, whichever is less. Customer will pay for all reasonable costs incurred by PreVeil in collecting past due amounts, including reasonable attorneys’ fees and other legal fees and costs. PreVeil may suspend or terminate the Services if Fees are past due. Any terms and conditions on a Customer purchase order will not apply to this Agreement and are null and void.
- License Grant. Subject to the restrictions and limitations set forth in this Agreement, including payment of all applicable Fees, PreVeil hereby grants to Customer, during the Term, a limited, revocable, non-exclusive, non-sublicensable and non-transferable license to access and use the Services. This license is for the sole purpose of enabling Customer to use the Services for its own internal business purposes in the manner permitted by this Agreement.
- License Restrictions. The Services are being licensed, not sold, to Customer, and PreVeil retains all of the rights, title and interest in and to the Services. Customer may not modify, reverse engineer, decompile or disassemble the Services partly or as a whole, or create derivative works of any software used to provide the Services (except where such action is expressly permissible through applicable law). No licenses or rights are granted to Customer by implication or otherwise, except for the licenses and rights expressly granted to Customer.
b) By Customer. Customer hereby represents and warrants that
(i) Customer has all rights in the Customer Content necessary to grant the rights of access, copying and usage needed for PreVeil to properly perform the Services, and
(ii) the Customer Content, and/or such access, copying and usage does not violate any applicable law or any agreement to which Customer is a party. Customer grants PreVeil and its subcontractors the limited rights that are reasonably necessary for PreVeil to provide the Services.
Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, intellectual property ownership and right to use of all Customer Content, and the means by which Customer acquires, uses and submits the Customer Content, including compliance with any regulations and laws applicable to the Customer Content. Customer is responsible for providing all notices and obtaining all licenses, rights and consents that may be required in order to allow PreVeil to process Customer Content as described in this Agreement.
Acceptable Use of Services
Customer shall not, and Customer shall not permit any third party to:
(i) use the Services in any manner or for any purpose other than as expressly permitted by this Agreement;
(ii) use the Services to conduct any illegal activity;
(iii) sell, lend, rent, resell, lease, or sublicense the Services to any third party; (iv) violate any applicable export control or trade sanctions laws or other applicable laws; (v) violate, misappropriate or infringe PreVeil’s or any third party’s privacy, publicity, intellectual property or other proprietary rights; (vi) use the Services to send unsolicited or unauthorized junk email, spam or any other forms of duplicative or unsolicited messages;
(vii) obtain more storage space than provided or otherwise circumvent limits placed by PreVeil, including but not limited to limits set forth in the Order Form or in documentation that PreVeil makes generally available to its customers;
(viii) use the Services in a manner that causes, in PreVeil’s sole discretion, an inordinate burden on PreVeil’s system resources (i.e., bandwidth);
(ix) store or transmit Customer Content that: (a) is illegal to store or transmit; (b) contains any material that encourages conduct that could constitute a criminal offense, or (c) contains malicious code;
(x) send altered, deceptive or false source-identifying information, including “spoofing” or “phishing”;
(xi) use the Services for purposes of bench-marking or other comparative analysis intended for publication without PreVeil’s prior written consent;
(xii) engage in any activity that interferes with or disrupts the Services or the servers and networks that are connected to the Services; or
(xiii) incorporate, link, distribute or use any third party software or code in conjunction with any Services in such a way that: (a) creates, purports to create or has the potential to create, obligations with respect to any such Services, including without limitation the distribution or disclosure of any portion of Services, or (b) grants, purports to grant, or has the potential to grant to any third party any rights to any intellectual property rights in the Services.
Export Control and Sanctions Compliance
Customer warrants and covenants as follows:
- The Services are subject to the export control and sanctions laws of the United States, and diversion contrary to U.S. law is prohibited;
- Customer is not a Restricted Party (as defined in this paragraph);
- Customer will not transfer the Services to, or permit the use of the Services by, any Restricted Party, or for any nuclear, missile, chemical/biological weapon-related or other end use that is prohibited by U.S. export regulations;
- Customer will not incorporate the Services into any other product except as authorized in writing by PreVeil;
- Customer will inform PreVeil immediately if any representation in this paragraph is no longer true;
- Customer will indemnify and hold harmless PreVeil, PreVeil’s officers, directors, employees, agents, successors and assigns from any liability, losses, or other costs resulting from Customer’s breach of any warranty or covenant in this paragraph.
- A “Restricted Party” includes any person or entity that is:
(1) located or established in, organized under the laws of, or controlled by the government of or one or more nationals of: Belarus, Cuba, Iran, North Korea, Russia, Syria and the Crimea, Luhansk and Donetsk regions of Ukraine, or any jurisdiction that may become subject to a general prohibition on U.S. persons’ engaging in financial and/or export transactions;
(2) designated on any list of sanctioned, denied or debarred parties maintained by the U.S. Department of Commerce, U.S. Department of the Treasury Office of Foreign Assets Control, or U.S. Department of State;
(3) majority owned by one or more entities designated on any such list maintained by the U.S. Department of the Treasury; or
(4) a non-U.S. military or intelligence organization.
Special Customer Decryption Servers
Customer acknowledges that Special Customer Decryption Servers requires sending and storing data in an unencrypted format, and that Special Customer Decryption Servers are only offered by PreVeil because Customer’s industry requires such services. As a result, Customer acknowledges and agrees that it is choosing to use Special Customer Decryption Servers in its sole discretion and agrees that PREVEIL WILL HAVE NO LIABILITY ARISING OUT OF OR IN CONNECTION WITH SPECIAL CUSTOMER DECRYPTION SERVERS, OR ANY SECURITY ISSUES, SECURITY BREACH OR OTHER INCIDENT ARISING FROM THE SPECIAL CUSTOMER DECRYPTION SERVERS. CUSTOMER EXPRESSLY ASSUMES ALL RISK AND RESPONSIBILITY ASSOCIATED WITH THE USE OF SPECIAL CUSTOMER DECRYPTION SERVERS PROVIDED WITH THE SERVICES. Furthermore, Customer, and not PreVeil, is responsible for ensuring that the Special Customer Decryption Servers comply with any applicable law or regulation specific to archiving or journaling within Customer’s industry.
Customer acknowledges and agrees that with respect to the Services:
- The receiver of any email message that Customer sends using the Services will also be required to use the Services in order to decrypt any encrypted email messages (except when a Special Decryption Server is used).
- PreVeil does not have access to Customer’s encryption and decryption keys.
- PreVeil may, from time to time, send Customer communications regarding the Services.
- PreVeil does not monitor Customer Content or the content third parties create and/or distribute using the Services, nor does PreVeil have the ability to decrypt Customer Content that has been encrypted.
- PreVeil will make commercially reasonable efforts to back up Customer Content. Customer’s Content is maintained across multiple data centers to ensure is availability and redundancy.
- PreVeil will use security best practices to help ensure the Services are virus-free and do not contain any disabling code, and to mitigate the possibility of a breach.
- While PreVeil’s security architecture provides protection for Customer Content while in an encrypted format, Customer acknowledges some basic security responsibilities by the Customer and its users. Specifically, user data can be accessed on any device to which you add that user’s account, and Customer is solely responsible for managing authorized devices. Due to the security risks associated with use of public devices, we strongly recommend that Customer does not permit users to copy their accounts onto public devices (for example, a library computer). We also recommend that Customer deploy software to protect user endpoint devices against malware and other malicious activities which could put your PreVeil account at risk.
PreVeil will provide support for the Services as described in the Order Form or other written support agreement entered into by PreVeil and Customer. PreVeil may change its support model from time to time on written notice to Customer (which may include posting such changes on PreVeil’s website) as long as the level of support is not materially less than that described in the Order Form as of the Effective Date.
- By Customer. Customer will defend, indemnify, and hold PreVeil harmless from and against all liabilities, damages and costs (including settlement costs and reasonable attorneys’ fees) relating to, arising out of, or in any way in connection with: (a) Customer’s access to or use of the Services; (b) Customer Content; or (c) Customer’s breach or alleged breach of the Agreement.
- By PreVeil. PreVeil will defend, indemnify, and hold Customer harmless from and against all liabilities, damages and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim against Customer to the extent such claim is based on an allegation that PreVeil’s technology used to provide the Services to the Customer infringes or misappropriates any copyright, trade secret, U.S. patent, or trademark right of the third party. In no event will PreVeil have any obligations or liability under this section arising from: (a) use of any Services in a modified form or in combination with materials not furnished by PreVeil; or (b) any content, information, or data provided by Customer or other third parties, including Customer Content. If PreVeil believes the Services infringe or may be alleged to infringe a third party’s intellectual property rights, then PreVeil may: (a) obtain the right for Customer, at PreVeil’s expense, to continue using the Services; (b) provide a non-infringing functionally equivalent replacement; or (c) modify the Services so that they no longer infringe. If PreVeil does not believe the options described in this section are commercially reasonable, then PreVeil may suspend or terminate Customer’s use of the affected Services, with a pro-rata refund of prepaid fees for the Services.
- General. The party seeking indemnification will promptly notify the other party of the claim and cooperate with the other party in defending the claim. The indemnifying party will have full control and authority over the defense, except that: (a) any settlement requiring the party seeking indemnification to admit liability requires prior written consent, not to be unreasonably withheld or delayed; and (b) the other party may join in the defense with its own counsel at its own expense. THE INDEMNITIES ABOVE ARE PREVEIL’S AND CUSTOMER’S ONLY REMEDY UNDER THIS AGREEMENT FOR VIOLATION BY THE OTHER PARTY OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.
Disclaimer of Warranty
TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICES ARE BEING MADE AVAILABLE “AS IS” WITHOUT WARRANTY OF ANY KIND, AND PREVEIL HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICES INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE AND NONINFRINGEMENT. Except as provided elsewhere in the Agreement or other written support agreement entered into by PreVeil and Customer, PreVeil does not guarantee any specific functions of the Services, or their reliability, availability, or ability to meet Customer’s needs. PreVeil does not guarantee any specific functions of the Special Customer Decryption Servers, or their reliability, availability, or ability to meet Customer’s needs and PreVeil is not responsible for any security breach resulting from use of the Special Customer Decryption Servers. PreVeil reserves the right to add or remove functionality or features, limit the Services in any country, or suspend or stop the Services altogether.
Limitations on Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, In no event shall either party be liable for any consequential, incidental, indirect, special, or punitive damages incurred by the other party and arising out of the performance of this Agreement, including but not limited to loss of good will and lost profits or revenue, whether or not such loss or damage is based in contract, warranty, tort, negligence, strict liability, indemnity, or otherwise, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE FULLEST EXTENT PERMITTED BY LAW, PREVEIL’S AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE LESSER OF $100,000 OR THE AMOUNT PAID BY CUSTOMER TO PREVEIL HEREUNDER DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY. Customer acknowledges and agrees that, with respect to the Services:
(i) Customer is responsible for maintaining the ability to recover any lost private keys (e.g., by setting up an Approval Group);
(ii) PreVeil will not have access to Customer’s private keys; and
(iii) PreVeil will not have the ability to decrypt Customer Content. PreVeil shall have no liability for any lost or undelivered emails or for the loss of any Customer Content. PreVeil shall have no liability for any use of the Special Customer Decryption Servers or any security breach or other incident arising therefrom.
Customer may provide suggestions, requests, recommendations and other feedback concerning Customer’s use of the Services (including, without limitation, suggestions for improvement) (the “Feedback”). Customer agrees that all Feedback shall be the sole property of PreVeil and PreVeil may use such Feedback at its discretion without the consent of Customer and without any obligation to compensate Customer.
Term and Termination
- Term. This Agreement will be in effect during the Term (as defined above). Unless otherwise stated on the Order Form or terminated by either party as permitted by the Agreement, the Agreement will automatically renew annually following the initial term set forth on the Order Form, provided that either party may terminate this Agreement by giving the other party at least 30 days’ written notice prior to the date the Agreement is set to auto-renew (in which case the Term will end on the date the Agreement was set to auto-renew). If Customer attempts to terminate the Agreement during the Term other than: (a) for cause, or (b) pursuant to a notice of non-renewal as permitted above, PreVeil will not provide Customer with a refund for any prepaid fees.
- Termination for Cause. A party may terminate this Agreement for cause immediately upon written notice: (i) for a material breach of this Agreement by the other party if the breach remains uncured 30 days after receipt of the initial written notice setting forth the breach in reasonable detail; or (ii) if the other party becomes the subject of a bankruptcy, insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceeding (except to the extent that a party is prohibited by law from terminating under such conditions).
- Post-Termination Obligations. Upon termination of this Agreement for any reason: (i) Customer will pay PreVeil any Fees or other amounts owing; (ii) any and all liabilities accrued prior to the effective date of the termination will survive; (iii) the rights granted to Customer hereunder shall terminate, and Customer will cease all use of the Services; (iv) PreVeil will provide Customer a reasonable opportunity to transfer its Customer Content out of PreVeil, after which PreVeil may delete Customer Content, without further obligation or liability to Customer; (v) Customer will, within thirty (30) days of such termination, destroy all copies of the Services, including any documentation in written or electronic form and any software stored on servers, devices or other systems; and (vi) if requested by PreVeil, Customer will promptly provide to PreVeil with a written certification signed by an authorized officer certifying that all copies of such Services have been destroyed.
- Survival. The terms of any sections that by their nature are intended to extend beyond termination including, but not limited to, Sections 4(a)(ii) (License Restrictions), 5 (Acceptable Use of Services), 6 (Export Control and Sanctions Compliance), 10 (Indemnification), 11 (Disclaimer of Warranty), 12 (Limitations of Liability), 13 (Feedback), 14 (Term and Termination), and 16 (Miscellaneous), will survive termination of this Agreement for any reason.
- Suspension. In addition to any other rights under this Agreement or otherwise, PreVeil reserves the right to suspend or terminate Customer’s access to the Services at any time if PreVeil reasonably believes that: (a) Customer has violated a material provision of this Agreement; or (b) Customer’s use of the Services creates possible legal exposure for PreVeil.
Updates to the Agreement
- Amendments. Subject to the section above titled “Updates to the Agreement,” any amendment or modification of any provision of this Agreement must be in writing, dated and signed by both parties hereto.
- Assignment. This Agreement may not be assigned, or otherwise be transferred, in whole or in part, by Customer without PreVeil’s prior written consent.
- Audit. PreVeil may audit Customer’s use of the Services to determine whether Customer’s use falls within the licensed capacity set forth on the Order Form (e.g., amount of storage or number of licensed users). Customer agrees to cooperate with PreVeil’s audit and provide reasonable assistance and access to information. Customer agrees to pay within 30 days of written notification any fees applicable to Customer’s use of the Services in excess of Customer’s license rights in accordance with PreVeil’s then current fees for Services.
- Construction. The headings contained herein are for directory purposes only, do not constitute a part of this Agreement, and shall not be employed in interpreting this Agreement. All references in this Agreement to the singular shall include the plural where applicable.
- Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto and supersedes all previous agreements and understandings, whether oral or written, express or implied, with respect to the subject matter hereof.
- Force Majeure. Except for the payment of fees owed hereunder, in the event that either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond the reasonable control of the party invoking this provision, the affected party’s performance shall be excused and the time for performance shall be extended for the period of delay or inability to perform due to such occurrence.
- Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts without regard to its choice of law provisions. Any legal action or proceeding with respect to this Agreement shall be brought in the state or federal courts in the Commonwealth of Massachusetts. By execution and delivery of this Agreement, each of the parties hereto accepts for itself and in respect of its property, generally and unconditionally, the exclusive jurisdiction of the aforesaid courts. Each party knowingly, voluntarily, and intentionally waives (to the extent permitted by applicable law) any right the party may have to a trial by jury of any dispute arising under or relating to this Agreement.
- No Other Relationship. Nothing contained in this Agreement shall be deemed to imply or constitute either party as the agent or representative of the other party, or both parties as joint ventures or partners for any purpose.
- Notices. Any notice required to be sent under this Agreement may be delivered by confirmed e-mail transmission or via nationally-recognized overnight courier to the address of the receiving party set forth on the Order Form. Either party may notify the other of an address change in accordance with this paragraph.
- Reference. Neither party may disclose the specific terms of this Agreement or issue a public statement or press release regarding this Agreement without the prior consent of the other party; provided, however, that PreVeil may identify Customer as a customer or user of the Services (e.g., by placing Customer’s logo on its website or marketing materials).
- Third Party Software. Certain portions of software provided with the Services may be subject to third party licenses known as “open source” or “free software” licenses. Such software may not be subject to the terms and conditions of this Agreement, but rather licensed under the terms and conditions of the license that accompanies such software. Customer’s rights to use such software under such other terms and conditions are not restricted or modified in any way by this Agreement.
- Severability. If any term or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions shall remain in full force and effect and shall in no way be affected, impaired or invalidated.
- Waivers. The waiver by either party of a breach or a default of any provision of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has, or may have hereunder, operate as a waiver of any right, power or privilege by such party.