THESE TERMS OF SERVICE CONTAIN THE TERMS AND CONDITIONS THAT GOVERN YOUR PURCHASE AND USE OF PRODUCTS AND SERVICES (AS DEFINED BELOW) AND IS AN AGREEMENT BETWEEN BRICATA INC. (“WE,” “US,” “OUR,” OR “BRICATA”) AND YOU OR THE ENTITY YOU REPRESENT (“YOU” OR “YOUR”), UNLESS YOU HAVE ENTERED INTO A SEPARATE WRITTEN AGREEMENT WITH US THAT APPLIES TO YOUR PURCHASE OF PRODUCTS OR SERVICES, IN WHICH CASE, THE SEPARATE WRITTEN AGREEMENT GOVERNS YOUR PURCHASE AND USE OF SUCH SPECIFIC PRODUCTS OR SERVICES.
THIS AGREEMENT TAKES EFFECT WHEN YOU CLICK “_____________” BUTTON OR CHECK BOX PRESENTED WITH THESE TERMS OR, IF EARLIER, WHEN YOU PLACE AN ORDER (AS DEFINED BELOW) FOR PRODUCTS OR SERVICES FROM US (THE “EFFECTIVE DATE”). YOU REPRESENT TO US THAT YOU ARE LAWFULLY ABLE TO ENTER INTO CONTRACTS (E.G., YOU ARE NOT A MINOR). IF YOU ARE ENTERING INTO THIS AGREEMENT FOR AN ENTITY, SUCH AS THE COMPANY YOU WORK FOR, YOU REPRESENT TO US THAT YOU HAVE LEGAL AUTHORITY TO BIND THAT ENTITY. IF YOU DO NOT AGREE TO THE TERMS AND CONDITION OF OUR TERMS OF SERVICE, YOU MAY NOT USE OUR PRODUCTS OR SERVICES.
“Account Information” means information about you that you provide to us in connection with your purchase of Products and Services. For example, Account Information includes information such names, phone numbers, email addresses, addresses and billing information you provide to us.
“Agreement” means these Terms of Service, the EULA, the Policy, and any applicable Order Form or SOW.
“Appliances” means any computer hardware, equipment, or device that we provide to you under this Agreement that is not a Third-Party Product.
“Applicable Law” means all applicable local, state, national, and international laws and regulations (as each of these may be amended) with respect to your use or receipt of the Products or Services.
“Confidential Information” means all nonpublic information disclosed by us, our business partners or our or their respective employees, contractors or agents that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Confidential Information includes: (a) nonpublic information relating to our or our business partners’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs; (b) third-party information that we are obligated to keep confidential; and (c) the nature, content and existence of any discussions or negotiations between you and us. Confidential Information does not include any information that: (i) is or becomes publicly available without breach of this Agreement; (ii) can be shown by documentation to have been known to you at the time of your receipt from us; (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by you without reference to the Confidential Information.
“Content” means content that you (i) process, store, or deliver using the Products or which you transfer, disclose, or make available to us for purposes of receiving Services. Content does not include Account Information.
“Delivery” means: (a) our delivery of Appliances EXW (Incoterms 2020) by making them available for carriage at our point of shipment within the United States (the “Shipping Origin”), and “Deliver” and “Delivered” will be construed accordingly; and (b) with respect to Software, either when we Deliver an Appliance on which Software is pre-installed or when we inform you that Software is available for electronic download.
“Documentation” means specification sheets, user guides, security best practices, and other documentation that we provide or make available to you in connection with the Products.
“EULA” means our End User License Agreement, a current version of which is available here.
“Indirect Taxes” means applicable taxes and duties, including, without limitation, VAT, GST, excise taxes, sales and transactions taxes, and gross receipts tax.
“Licensed Metric Units” has the meaning ascribed to it in the EULA.
“Losses” means any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees).
“Products” means Appliances and Software.
“Software” means all software (including all generally available software applications, firmware, operating system software, SDKs, libraries, utilities, tools, or other computer or program code (including all software feature enhancements, updates, and upgrades) that we license to you.
“Subscription Period” has the meaning ascribed to it in the EULA.
“Suggestions” means all suggested improvements to the Products or Services that you provide to us.
“Term” means the term of this Agreement described in Section 7.1.
“Termination Date” means the effective date of termination provided in accordance with Section 7, in a notice from one party to the other.
“Third-Party Products” means Third-Party Software and any computer hardware, equipment, or device developed, owned, or provided by third parties or their licensors.
“Third-Party Software” has the meaning ascribed to it in the EULA.
2. PROVISION OF THE PRODUCTS AND SERVICES.
- 2.1 Generally. Our provision of any Products or Services is subject to and conditioned on: (a) the terms and conditions of the Agreement and (b) your adherence to and compliance with: (i) the Documentation and (ii) Applicable Law.
- 2.2 Services. Services may include installation, configuration, and related services for the Products, and are “Services” for purposes of the Agreement. conducting the audit.
- (a) Statement of Work. At our option and in our discretion, you may be asked to enter into a separate written statement of work (“SOW”), which will describe the scope of Services to be provided, applicable charges, and any applicable additional terms and conditions.
- (b) Provision of Services. Any Services will be provided in a professional manner and using skilled and experienced resources. If we fail to do so, then as your sole and exclusive remedy, we will at our option and upon receipt of written notice from you (email sufficient) detailing such non-conformance within ten (10) business days of work being performed, refund the charges for non-conforming Services or re-perform them until they are so performed.
- (c) No Legal or Compliance Advice. We do not provide legal or compliance advice. You are responsible for assessing whether your use of the Services (or Products) meets applicable legal and regulatory requirements.
3. DELIVERY AND ACCEPTANCE OF PRODUCTS.
- 3.1 Delivery Dates. Delivery dates on any Order Form are estimates only, and in no event will we be liable for any Losses resulting from any delay in Delivery.
- 3.2 Shipment Support. Unless you request otherwise in writing in connection with an Order Form as described in Section 3.3, you authorize us to select the carrier to ship your Products from the Shipping Origin and to provide us with all necessary information to enable the carrier to ship the Products to your designated destination. We will provide an estimate of shipping charges in an Order Form or otherwise upon your written request. We will pay the shipping charges and include that amount on your invoice, which you agree to pay in accordance with Section 5 of this Agreement.
- 3.3 Customer Carriers. You may request in writing that we ship your Products from the Shipping Origin to your destination using a carrier of your choice, which will be at your sole cost and expense, and conditioned on you providing (a) to us, in writing, all information necessary to enable the shipment of your Products by your nominated carrier from the Shipping Origin to your destination; (b) to any carrier engaged by you to ship your Products with our instructions concerning operating at our Shipping Origin. We will provide any such instructions prior to the Delivery date; and (c) that in no event will you name or identify us on any shipping documents unless required to do so by applicable law.
- 3.4 International Shipments. You will be the importer of record for the shipment of each Product from the Shipping Origin to your destination. You will obtain any necessary licenses or other authorizations for the shipment of the Products from the Shipping Origin to your destination.
- 3.5 Title; Risk of Loss.Title to and risk of loss for sold Appliances transfers to you upon Delivery. We do not transfer title to Software; Software is only licensed to you and not sold. You are solely responsible for obtaining insurance for all shipments at your expense.
- 3.6 Acceptance. Upon Delivery, you will be deemed to have accepted the Delivered Products. You may reject or return Delivered Product only if you give us notice within thirty (30) calendar days of Delivery that the Product does not materially conform to the specifications set forth in the Order Form and applicable Documentation. If you reject Products for cause, we have the right to either (at our discretion) replace the Products or cancel the sale. In either case, you retain all rights and remedies described in any applicable limited Product warranties for any accepted Product.
- 3.7 Returns. For any digital or tangible property you return to us and unless agreed otherwise in writing, you will make delivery DDP (Incoterms 2020) to our designated place of business within the United States (which may be different from the Shipping Origin), and title (with respect to Appliances) and risk of loss will transfer from you to us upon our receipt of such property.
- 3.8 Trade and Product Compliance. In connection with this Agreement and as consistent with U.S. law, each party will comply with all applicable import, re-import, sanctions, anti-boycott, export, and re-export control laws and regulations that apply to a U.S. company such as the Export Administration Regulations, the International Traffic in Arms Regulations, and economic sanctions programs implemented by the U.S. Office of Foreign Assets Control. You represent and warrant that you and your financial institutions, or any party that owns or controls you or your financial institutions, are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties, including but not limited to the lists maintained by the United Nations Security Council, the U.S. Government (g., the Specially Designated Nationals List and Foreign Sanctions Evaders List of the U.S. Department of Treasury, and the Entity List of the U.S. Department of Commerce), the European Union or its Member States, or other applicable government authority. Upon our request, you or your authorized agent will provide us with documentation related to the shipment of the Products under this Agreement, including documentation related to the export or import of the Products. Some Appliances are not available for shipment by us into certain jurisdictions. We will provide documentation evidencing regulatory certifications for Appliances upon your written request. We do not guarantee that the certifications we maintain satisfy all laws applicable to the Products in any particular jurisdiction, and you are responsible for identifying and complying with any additional legal and regulatory requirements, approvals, qualifications, or certifications that may be required to import or use the Products in your jurisdiction.
4. PRIVACY AND SECURITY.
- 4.1 Data Security. Without limiting Section 10 or your obligations under Section 4.3, we will implement reasonable and appropriate measures designed to help you secure Content provided to us in connection with the Services against accidental or unlawful loss, access or disclosure. We will only use your Account Information in accordance with our Policy, and you consent to such usage.
- 4.2 Data Privacy. We will not access or use Content provided to us in connection with the Services except as necessary to maintain or provide Services to you at your request, or as necessary to comply with the law or a binding order of a governmental body. By transferring any such Content and any logs or other similar usage metrics to us for purposes of receiving our Services, you consent to our access to and use of such Content for that purpose. We will not disclose your Content for any purpose without your written permission, except as necessary to effectuate this Agreement or as necessary to comply with the law or a binding order of a governmental body (such as a subpoena or court order).
- 4.3 Your Responsibilities.You will ensure that your Content and your use of the Products will not violate any our Policy or any Applicable Law. You are solely responsible for the development, content, operation, maintenance, and your use of your Content. You are also responsible for properly configuring and using the Products and otherwise taking appropriate action to secure, protect, and backup any Content that you place into such Products in a manner that will provide appropriate security and protection (including by following any security best practices and policies we make available to you), which might include use of physical and logical security, firewalls, encryption, and other network security tools to protect Products and your Content from unauthorized access and routinely archiving such Content.
5. FEES AND PAYMENT.
- 5.1 Fees for Products and Services. Prices for Products and Services are exclusive of applicable taxes, duties, and levies (g., Indirect Taxes) and shipping or freight charges. You will pay the fees and charges set forth on your invoice, using one of the payment methods we support (which may be specified on your invoice), on or before the 30th day following the invoice date. Notwithstanding the foregoing, we may require your payment prior to Delivery by indicating as such on an Order Form or as part of the order process. All amounts payable by you under this Agreement will be paid to us without setoff or counterclaim, and without any deduction or withholding, and are non-refundable (except as expressly set forth in the Agreement). We may elect to charge you interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on any delinquent payment.
- 5.2 Taxes. Each party will be responsible, as required under applicable law, for identifying and paying all taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) that are imposed on that party upon or with respect to the transactions and payments under this Agreement. All fees payable by you for Products and Services are exclusive of Indirect Taxes. We may charge and you will pay applicable Indirect Taxes that we are legally obligated or authorized to collect from you. You will provide such information to us as reasonably required to determine whether we are obligated to collect Indirect Taxes from you. We will not collect, and you will not pay, any Indirect Tax for which you furnish us a properly completed exemption certificate or a direct payment permit certificate for which we may claim an available exemption from such Indirect Tax. All payments made by you to us under this Agreement will be made free and clear of any deduction or withholding, as may be required by law. If any such deduction or withholding (including but not limited to cross-border withholding taxes) is required on any payment, you will pay such additional amounts as are necessary so that the net amount received by us is equal to the amount then due and payable under this Agreement. We will provide you with such tax forms as are reasonably requested in order to reduce or eliminate the amount of any withholding or deduction for taxes in respect of payments made under this Agreement.
6. TEMPORARY SUSPENSION. We may suspend (in full or in part) your right to order Products and Services and your right to receive Services immediately upon notice to you if we determine that: (a) your use of the Products or our performance of Services poses a security risk, could be fraudulent, or could subject us or any third party to liability; (b) you are in breach of this Agreement; (c) you are in breach of your payment obligations under Section 5; or (d) you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.
7. TERM; TERMINATION.
- 7.1 Term. The term of this Agreement will commence on the Effective Date and will remain in effect unless and until expiration or if terminated under this Section 7 (except as to the Software, which is subject to the termination provisions in the EULA). Any notice of termination of this Agreement by either party to the other must include a Termination Date that complies with the notice periods in Section 7.2.
- 7.2 Termination. This Agreement may be terminated by: (a) either party may terminate this Agreement for cause if the other party is in material breach of this Agreement and the material breach remains uncured for a period of ten (10) days from receipt of notice by the other party and (b) us immediately upon notice to you (i) for cause if we have the right to suspend under Section 6, (ii) if our relationship with a third-party partner who provides hardware, software, or other technology we use to provide the Products or Services expires, terminates, or requires us to change the way we provide the hardware or software or other technology as part of the Products or Services, or (iii) in order to comply with Applicable Law or requests of a governmental entity.
- 7.3 Effect of Termination. Upon the Termination Date, except as provided below, (a) all your rights under this Agreement immediately terminate, (b) you remain responsible for all fees and charges you have incurred through the Termination Date, (c) you will immediately return or, if instructed by us, destroy all Confidential Information in your possession, and (d) Sections 2.2(b), 4, 5, 7, 8, 9, 10.2, 11, 12, and 13 will continue to apply in accordance with their terms. Unless we terminate this Agreement pursuant to Section 7.2(b), (x) we will Deliver any Products you Ordered prior to the Termination Date if the Delivery date is thirty (30) days or fewer before the Termination Date, (y) you will continue to receive any Services you Ordered prior to the Termination Date for the applicable Services term, and (z) you will be entitled to continue to use the Products for the applicable license term set forth in this Agreement (which may be perpetual).
8. PROPRIETARY RIGHTS; CHANGES; SUGGESTIONS.
- 8.1 Content. You (or your licensors) own all right, title, and interest in and to your Content. Except as provided in this Agreement, we obtain no rights under this Agreement to your Content.
- 8.2 Software License. You agree that your use of Software is governed by and subject to EULA, as it may be updated by us from time to time.
- 8.3 Rights; Restrictions. All right, title and interest in and to the intellectual property rights in the Products and Services, including processes, tools, technology, Confidential Information, and trade secrets embodied therein and any custom developments created or provided in connection with or related to this Agreement, and any derivative works thereof, belong solely and exclusively to us and our licensors or suppliers, and you have no rights whatsoever in any of the foregoing other than the rights expressly set forth in this Agreement. Nothing in this Agreement or otherwise will be deemed to grant to you an ownership interest in any of the intellectual property rights in or to any Products or Services, in whole or in part. You agree that you will not attempt to (a) modify, distribute, alter, tamper with, repair, or otherwise create derivative works of any Products, (b) reverse engineer, disassemble, or decompile the Products or apply any other process or procedure to derive the source code of any software included in the Products (except to the extent applicable law does not allow this restriction), (c) remove or alter any identification marks, proprietary notices or labels from the Products, or (d) resell or sublicense the Products or Services. You will not misrepresent or embellish the relationship between us and you (including by expressing or implying that we support, sponsor, endorse, or contribute to you or your business endeavors). You will not imply any relationship or affiliation between us and you except as expressly permitted by this Agreement.
- 8.4 Changes; Discontinued Products or Services. We may revise or discontinue Products and Services at any time as in our reasonable discretion, including after you place an order, but prior to Delivery. Replacement versions will materially meet or exceed all published specifications for the Products and Services.
- 8.5 Suggestions. If you provide any Suggestions to us, we will be entitled to use the Suggestions without restriction. You hereby irrevocably assign to us all right, title, and interest in and to the Suggestions and agree to provide us any assistance we require to document, perfect, and maintain our rights in the Suggestions.
- 9.1 General. You will defend, indemnify, and hold harmless us and our employees, officers, directors, and representatives from and against any Losses arising out of or relating to any third-party claim concerning: (a) breach of this Agreement or violation of Applicable Law by you or your Content; or (b) or services provided by a carrier you select. You will reimburse us for reasonable attorneys’ fees, as well as our employees’ and contractors’ time and materials spent responding to any third-party subpoena or other compulsory legal order or process associated with third-party claims described in (a) through (b) above at our then-current hourly rates.
- 9.2 Intellectual Property.
- (a) Subject to the limitations in this Section 9, we will defend you and your employees, officers, and directors against any third-party claim alleging that the Products infringe or misappropriate that third party’s intellectual property rights, and will pay the amount of any adverse final judgment or settlement.
- (b) Subject to the limitations in this Section 9, you will defend us and our employees, officers, and directors against any third-party claim alleging that any of your Content infringes or misappropriates that third party’s intellectual property rights, and will pay the amount of any adverse final judgment or settlement.
- (c) Neither party will have obligations or liability under this Section 9.2 arising from infringement by combinations of the Products or Services or your Content, as applicable, with any other product, service, software, data, content, or method. In addition, we will have no obligations or liability arising from your or any third parties’ use of the Products after we have notified you to discontinue such use. The remedies provided in this Section 9.2 are the sole and exclusive remedies for any third-party claims of infringement or misappropriation of intellectual property rights by the Products or Services or by your Content.
- (d) For any claim covered by Section 9.2(a), we will, at our election, either: (i) procure the rights to use that portion of the Products alleged to be infringing; (ii) replace the alleged infringing portion of the Products with a non-infringing alternative; (iii) modify the alleged infringing portion of the Products to make it non-infringing; or (iv) if none of (i), (ii), or (iii) are commercially reasonable, (1) accept the return of any infringing Product and/or terminate any license to use the infringing Product and (2) grant you a pro rata credit in the amount of the remaining value of the purchase price of the infringing Product, calculated based on straight-line depreciation over three (3) years from Delivery of such Product.
- 9.3 Process. The obligations under this Section 9 will apply only if the party seeking defense or indemnity: (a) gives the other party prompt written notice of the claim; (b) permits the other party to control the defense and settlement of the claim; and (c) reasonably cooperates with the other party (at the other party’s expense) in the defense and settlement of the claim. In no event will a party agree to any settlement of any claim that involves any commitment without the written consent of the other party.
10. WARRANTY; DISCLAIMERS.
- 10.1 Warranty. We warrant that we have the necessary rights to provide the Products and Services under this Agreement. In addition, (a) as to Appliances, for a period of ninety (90) days following Delivery, we warrant, solely with respect to Appliances for which you pay and we receive a fee, that the Appliances, when installed and operated pursuant to our instructions in the Documentation, will perform in material accordance with such Documentation, (b) as to the Software, the warranty is set forth in the EULA, (c) as to the Services, the warranty is set forth in Section 2.2(b) of this Agreement, and (d) as to any Third-Party Products, we are not the manufacturer, licensor, or distributor of such products; therefore, we provide no warranty to any such Third-Party Products. However, we shall forward to you any warranties provided to us by the third-party manufacturer, licensor, or distributor and, to the extent permissible under any such warranty, you shall be the beneficiary of any Third-Party Product warranty. Any limited warranty under Sections 10.1 (a), (b), or (c) is not transferable and does not cover damages, defects, malfunctions or failures caused by: (i) any unauthorized modification by you or those acting under your direction or control of (1) the Products or (2) any hardware or software that interfaces with the Products, (ii) installation, configuration, or use of the Products contrary to, or in conjunction with hardware or software not specified in, the Documentation, or (iii) your misuse or abuse of the Products, including subjecting the same or any hardware or software that interfaces with the Products to abnormal physical, electrical, or environmental stress. Your sole and exclusive remedy for any breach of this warranty is to return any allegedly defective Product to us and we will, at our option and in our discretion, either: (x) repair or replace the Product, provided that you provide us with all information we reasonably request to resolve the reported failure, including sufficient information to enable us to recreate such failure or (y) refund the pro rata fees paid for the Product or, as to Appliances, grant you a pro rata credit in the amount of the remaining value of the purchase price of the Appliance, calculated based on straight-line depreciation over three (3) years from Delivery of such Appliance.
- 10.2 Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 10.1, THE PRODUCTS AND SERVICES ARE DELIVERED OR PROVIDED TO YOU “AS IS” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. EXCEPT TO THE EXTENT ANY STATUTORY RIGHTS APPLY THAT CANNOT BE EXCLUDED, LIMITED, OR WAIVED, WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE PRODUCTS AND SERVICES (OR ANY THIRD-PARTY PRODUCTS PROVIDED UNDER YOUR THIS AGREEMENT), AND DISCLAIM ALL OTHER WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES (A) OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AGAINST LATENT OR HIDDEN DEFECTS, NON-INFRINGEMENT, OR QUIET ENJOYMENT, (B) ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, (C) THAT THE PRODUCTS OR SERVICES WILL BE UNINTERRUPTED, ERROR FREE, OR FREE OF HARMFUL COMPONENTS, (D) THAT ANY OF YOUR CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR ALTERED, AND (E) THAT THE PRODUCTS OR SERVICES WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE WITH ANY OTHER SOFTWARE, APPLICATION, SYSTEM, HARDWARE, OR SERVICE, OR MEET ANY PERFORMANCE OR RELIABILITY STANDARDS.
11. LIMITATIONS OF LIABILITY. WE WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF USE, PROFITS, REVENUES, CUSTOMERS, OPPORTUNITIES, GOODWILL, USE, OR DATA), EVEN IF WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, WE WILL NOT BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR INABILITY TO ORDER PRODUCTS OR USE THE PRODUCTS OR SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR RIGHT TO ORDER OR RECEIVE THE SERVICES OR (II) OUR DISCONTINUATION OF ANY OR ALL OF THE SERVICES; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF THE PRODUCTS OR SERVICES; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR CONTENT OR OTHER DATA. IN ANY CASE. EXCEPT FOR PAYMENT OBLIGATIONS UNDER SECTION 9.2, OUR AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE LESSER OF $10,000 OR THE AMOUNT YOU ACTUALLY PAY US UNDER THIS AGREEMENT FOR THE PRODUCT OR SERVICE THAT GAVE RISE TO THE CLAIM DURING THE TWELVE (12) MONTHS BEFORE THE LIABILITY AROSE. THE LIMITATIONS IN THIS SECTION 11 APPLY ONLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE PROVISIONS SET FORTH IN THIS AGREEMENT SHALL APPLY EVEN IF A NON-BREACHING PARTY’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. EACH PARTY ACKNOWLEDGES AND AGREES THAT THE PARTIES ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION, THAT THE SAME REFLECT AN ALLOCATION OF RISK BETWEEN THE PARTIES (INCLUDING THE RISK THAT A CONTRACT REMEDY MAY FAIL OF ITS ESSENTIAL PURPOSE AND CAUSE CONSEQUENTIAL LOSS), AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
12. AMENDMENT. We may modify this Agreement at any time by posting a revised version on www.bricata.com or by otherwise notifying you in accordance with Section 13.8. The modified terms will become effective upon posting or, if we notify you by email, as stated in the email message. By continuing to purchase or use Products and Services after the effective date of any modifications to this Agreement, you agree to be bound by the modified terms. It is your responsibility to check our website regularly for modifications to this Agreement. We last modified this Agreement on the date listed at the bottom of this Agreement.
- 13.1 Assignment. You will not assign or otherwise transfer this Agreement or any of your rights and obligations under this Agreement, without our prior written consent. Any assignment or transfer in violation of this Section 13.1 will be void. We may assign this Agreement without your consent (a) in connection with a merger, acquisition or sale of all or substantially all of our assets, or (b) to any affiliate or as part of a corporate reorganization; and effective upon such assignment, the assignee is deemed substituted for Bricata as a party to this Agreement and Bricata is fully released from all of its obligations and duties to perform under this Agreement. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective permitted successors and assigns.
- 13.2 Entire Agreement. This Agreement incorporates by reference each Order Form, the EULA, the Policy, and is the entire agreement between you and us regarding the subject matter of this Agreement. This Agreement supersedes all prior or contemporaneous representations, understandings, agreements, or communications between you and us, whether written or verbal, regarding the subject matter of this Agreement. We will not be bound by, and specifically object to, any term, condition or other provision that is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) including for example, any term, condition or other provision (a) submitted by you in connection with any order, including in any purchase order, receipt, acceptance, confirmation, special instruction or custom request, as correspondence or other document, (b) related to any online registration, response to any request for bid, request for proposal, request for information, or other questionnaire, or (c) related to any invoicing process that you submit or require us to complete. Your ability to accept our Order Forms is expressly conditioned on your acceptance with the terms of this Agreement, and your acceptance will be effective only if it contains no additional terms. In the event of a conflict between the terms and conditions of this Agreement and the terms and conditions of any Order Form, the Policy, or the EULA, the terms and conditions govern in the following order of precedence from first to last: this Agreement, the EULA, our Policy, and Order Form.
- 13.3 Force Majeure. We will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond our reasonable control, including acts of God, pandemic, labor disputes or other industrial disturbances, electrical or power outages, utilities or other telecommunications failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
- 13.4 Governing Law. This Agreement and the matters contemplated herein are governed by and construed in accordance with the laws of the state of Maryland, excluding its conflict of laws principles. Neither the Uniform Computer Information Transactions Act nor The United Nations Convention on Contracts for the International Sale of Goods shall apply to this Agreement.
- 13.5 Independent Contractors; Non-Exclusive Rights. We and you are independent contractors, and this Agreement will not be construed to create a partnership, joint venture, agency, or employment relationship. Neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other.
- 13.6 Language. All communications and notices made or given pursuant to this Agreement must be in the English language. If we provide a translation of the English language version of this Agreement, the English language version of the Agreement will control if there is any conflict.
- 13.7 Confidentiality. You may use Confidential Information only in connection with your use of the Products and Services as permitted under this Agreement. You will not disclose Confidential Information during the Term or at any time during the 5-year period following the end of the Term. You will take all reasonable measures to avoid disclosure, dissemination, or unauthorized use of Confidential Information, including, at a minimum, those measures you take to protect your own confidential information of a similar nature.
- 13.8 Notice. Any notice required under this Agreement must be made to a party by personal delivery, overnight courier or registered or certified mail to the applicable party’s mailing address listed on the Order Form. Any such notice shall be effective upon receipt.
- 13.9 No Third-Party Beneficiaries. Except as expressly set forth herein, this Agreement does not create any third-party beneficiary rights in any individual or entity that is not a party to this Agreement.
- 13.10 U.S. Government Rights. The Products are provided to the U.S. Government as “commercial items,” “commercial computer software,” “commercial computer software documentation,” and “technical data” with the same rights and restrictions generally applicable to the Products. If you are using the Products on behalf of the U.S. Government and these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, you will immediately discontinue your use of the Products. The terms “commercial item” “commercial computer software,” “commercial computer software documentation,” and “technical data” are defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement.
- 13.11 No Waivers. The failure by us to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit our right to later enforce such provision. All waivers by us must be in writing to be effective.
- 13.12 Severability. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to the effect and intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement, but the rest of the Agreement will remain in full force and effect.
LAST MODIFIED: October 12, 2020