This agreement (“Agreement”) is entered into on this _____ day of _______, 20__, (the “Effective Date”) between Inky Technology Corporation with offices at 5825 University Research Ct. College Park, Maryland 20740 (“Inky”), and __________________________, with offices at __________________________________________________ (“Customer”). There will be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof. Each party’s acceptance of this Agreement was and is expressly conditional upon the other’s acceptance of the terms contained in the Agreement to the exclusion of all other terms. For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows. The foregoing text is incorporated herein by reference.
1.1 “Anonymized Data” is as defined in Section 5.4 of this Agreement.
1.2 “Confidential Information” is as defined in Section 4.1.
1.3 “Customer Data” means any data or information relating to Customer, generated by and/or through Customer’s access to and/or use of the Services or Software, or which was acquired by Inky during the course of providing Services or Software to Customer, including Customer Confidential Information, Personal Information, information on individual phishing attacks on Customer, Customer data, and email content (including associated meta-data).
1.4 “End Users” means employees, contractors and/or other Customer agents or representatives having a Customer-issued email address that use the Software.
1.5 “Hosting Provider” means Service and/or Software hosting company identified in Section 11 hereof and any successor thereto.
1.6 “Hosting Services” means the provision of on-demand online access to the Software by the Hosting Provider in accordance with the terms of service referenced herein.
1.7 “Intellectual Property Rights” is as defined in Section 5.2 of this Agreement.
1.8 “Inky Materials” is any documentation and support materials provided by Inky in support of the Software, such as the onboarding materials.
1.9 “Inky Property” is as defined in Section 3 of this Agreement.
1.10 “Personal Information” means any non-public personal information of a party or its customers that is protected by any law applicable to such party and is disclosed by a party to the other party in connection with this Agreement.
1.11 “Services” means the process by which Hosting Provider, Hosting Services, Inky Materials, Inky Data, and Inky Property collectively work to provide the Software.
1.12 “Software” means the cloud-based solution as referred to in the Quotation.
2.1 Subject to the terms and conditions of this Agreement, Inky will host the Software and grants Customer a license access and use the Software on a remote basis through its connection to and use of the Services. Customer may only access and use the Software for its intended purpose and in the ordinary course of its business.
2.2 Customer is solely responsible for completing any implementation and onboarding steps attached hereto as Exhibit A, which are minimum requirements necessary to allow Inky to enable the Software for Customer and activate Customer’s account.
2.3 During Inky’s normal business hours, as defined in Inky’s Support & Service Level Agreement, attached hereto as Exhibit C, Inky will provide telephone and email-based support to Customer for implementing and using the Software. Customer, at no extra charge, shall be entitled to receive any enhancements, modifications, fixes and/or improvements to the Software that Inky generally makes in its routine support and maintenance of the Software. Inky agrees to provide the level of support for the Software in accordance with its Support & Service Level Agreement.
Customer will not, and will not permit anyone else, to: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, algorithms or models of the Services, Software, documentation that is provided by or on behalf of Inky (collectively, “Inky Property”) (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); modify, translate, or create derivative works based on the Inky Property; use Inky Property for any purpose other than its own internal use for the benefit of its End Users; use Inky Property for the development, provision or use of a competing software service or product; or use Inky Property other than in accordance with this Agreement and in compliance with all applicable laws and regulations.
4.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose non-public or proprietary information including but not limited to information relating to the Disclosing Party’s technology or business identified as proprietary or confidential, or which given its nature and the circumstances surrounding its disclosure should reasonably be construed to be confidential including, without limitation Customer Data and Personal Information (hereinafter referred to as “Confidential Information” of the Disclosing Party). The Receiving Party agrees: (i) not to divulge or make available to any third person any such Confidential Information, (ii) to give access to such Confidential Information solely to those employees or independent contractors with a need to have access thereto for purposes of this Agreement and who agree to policies and obligations consistent with the terms of this Agreement with respect to such Confidential Information or by the nature of the capacity in which they render services, it is implicit they assume obligations consistent with the terms of this Agreement and for which it shall be liable for the acts or omissions of such employees or independent contractors, (iii) to hold the other party’s Confidential Information in confidence and protect such Confidential Information from unauthorized disclosure and take the same security precautions to protect against disclosure or unauthorized use of such Confidential Information that the party takes with its own proprietary information, but in no event will a party apply less than commercially reasonable precautions to protect such Confidential Information and (iv) not to use or duplicate the Confidential Information of the other party for any purpose other than to perform its obligations or exercise its rights hereunder. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in Receiving Party’s possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to Receiving Party without any obligations of confidentiality by a third party, or (d) was independently developed by or for Receiving Party without use of any Confidential Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Confidential Information pursuant to any judicial or governmental order or request, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure (to the extent permitted by applicable law) to allow Disclosing Party to contest such order and the Receiving Party shall reasonably cooperate, at the Disclosing Party’s expense, with the Disclosing Party in protecting against any such disclosure and/or obtaining a restraining or similar protective order. In the event that the parties are not successful in obtaining a protective order and the Receiving Party is, in the opinion of its counsel, compelled to disclose the Confidential Information, the Receiving Party may disclose such information solely in accordance with and for the limited purpose of compliance with the court order or governmental or regulatory requirement or request without liability hereunder and in any such event, the Receiving Party will use its reasonable best efforts (and will reasonably cooperate with the Disclosing Party in its efforts) at Disclosing Party’s expense to ensure that such Confidential Information and other information that is so disclosed will be accorded confidential treatment.
4.2 Either Party has the right to disclose the existence but not the terms and conditions of this Agreement, unless such disclosure is approved in writing by both Parties prior to such disclosure, or is included in a filing required to be made by a Party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirers.
4.3 Upon written request at any time, the Receiving Party will return to the Disclosing Party in an industry standard encrypted electronic format, or destroy at the Disclosing Party’s request, any and all of the Disclosing Party’s Confidential Information in the Receiving Party’s possession or control and, if destroyed, provide the Disclosing Party with written confirmation of such destruction, provided that the Receiving Party may retain one (1) encrypted copy of the Confidential Information it deems necessary to comply with its internal retention policies or any obligations under all applicable law and any Confidential Information it believes cannot reasonably be destroyed (such as oral communications reflecting Confidential Information, firm electronic mail back-up records, back-up server tapes and any similar such automated record-keeping or other retention systems), which shall remain subject to the confidentiality terms of this Agreement in perpetuity.
5.1 Except as expressly set forth herein, as between Inky and Customer, Inky alone (and its licensors, where applicable) will retain all intellectual property rights relating to (i) the Inky Data, Inky Property, Inky Materials, the Service, and the Software, including without limitation, improvements, enhancements, additions or other modifications made thereto, or (ii) any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any third party relating to the Inky Materials, Inky Property, Service and/or Software, which are hereby assigned to Inky. Customer will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement.
5.2 Subject to Customer’s payment of applicable undisputed fees and compliance with the terms and conditions of the Agreement, Inky hereby grants Customer a limited, non-exclusive, revocable (as provided herein), non-sublicensable, royalty-free right and license during the Term to use solely that portion of the Inky Data generated by the Services and the Software specifically for Customer pursuant to this Agreement solely internally in the ordinary course of its business, including any documentation, reports, banners and analyses, in each case, made part of such Inky Data. Other than the right to access and use the Software, Inky Material, Inky Property, and Inky Data during the Term of this Agreement, nothing in this Agreement shall be construed to, or be deemed to, assign or grant to Customer any right, title, or interest in or to the Software, Services, Inky Materials, Inky Property, or Inky Data relating thereto. “Intellectual Property Rights” means any and all: (i) registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, design, mask work, topography, database protection or other intellectual property rights or proprietary rights laws, (ii) similar or equivalent rights or forms of protection arising under statutory or common law, contract, or otherwise, and whether or not perfected, (iii) goodwill associated with the foregoing, and (iv) customizations, enhancements, improvements, modifications and derivative works of and to the foregoing described in (i) through (iv), as may now or in the future exist in any part of the world, in all media, for all versions and elements, in all languages, and for the entire duration of such rights.
5.3 By using the Software, Customer acknowledges and agrees that Inky will obtain, collect, and process Customer Data for the performance of its obligations under this Agreement. Subject to the terms of this Agreement, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data.
5.4 Customer hereby grants to Inky and its respective officers, directors, members, managers employees, subcontractors, and agents an irrevocable, royalty-free, worldwide right and license to access, collect, analyze, and use Customer Data collected and/or received by Inky: (i) during the Term, solely as necessary to provide the Services and Software to Customer and its End Users; (ii) in perpetuity, to the extent Inky is using Customer Data by aggregating it with similar data of other Inky customers and de-identifying it so it does not identify Customer as the source of Customer Data or any part thereof (“Anonymized Data”), to improve and enhance its products and services, provided that the Anonymized Data does not include any Customer Confidential Information and such Anonymized Data is not provided to any third party.
6.1 Indemnification by Inky.
(a) Inky shall defend, indemnify and hold harmless Customer and its respective officers, directors, employees, and agents (together with the Customer, collectively “Customer Indemnified Persons”) from any third party claims, liabilities, counterclaims, suits, demands, actions, damages, (including, but not limited to, any judgement, arbitration award or court approved settlement and reasonable attorneys’ fees) or allegations arising out of any claim by a third party (i) that the Services, Software or any materials provided by Inky to Customer, infringes any patent or copyright, or misappropriates any trade secret, of such third party, (ii) arising from the gross negligence, willful misconduct or fraudulent actions of Inky and/or its employees, directors, managers, members, officers or agents in the performance of their obligations under this Agreement, or (iii) based upon any finally adjudicated failure by Inky or its employees, directors, officers or agents to comply with applicable law and regulations in the performance of their obligations under this Agreement; provided, however, that Inky shall obtain the express prior written approval of the Customer Indemnified Persons for any settlement that requires any specific performance or non-pecuniary remedy by the Customer Indemnified Persons, requires the payment of any amount by the Customer Indemnified Persons or does not provide an unconditional release to the Customer Indemnified Persons, further provided Inky is promptly notified of any and all such claims, and given sole control over the defense and/or settlement thereof, and all reasonably requested assistance (at Inky’s expense) in connection therewith. The Customer may retain its own counsel, at its own expense, subject to Inky’s rights herein. The foregoing obligations set forth in Section 5.1 do not apply with respect to portions or components of the Services to the extent such services are (u) not created by Inky, (v) result in whole or in part from Customer specifications, (w) are modified after delivery by Inky (other than modifications made by or on behalf of Inky), (x) combined with other products, processes or materials where the alleged infringement relates to such combination unless such combination was installed or implemented at the direction of Inky, (y) where Customer continues the allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (z) where Customer’s use of the Services or Software is not strictly in accordance with this Agreement and all related documentation.
(b) If, due to a claim of infringement, the Software and/or Services are held by a court of competent jurisdiction to be or are believed by Inky to be infringing, Inky may, at its option and expense and in addition to its foregoing indemnification obligations (a) replace or modify the Service or Software to be non-infringing, provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service and/or Software, or (c) terminate this Agreement. The foregoing states the entire liability of Inky with respect to the foregoing grounds for indemnification
6.2 Indemnification by Customer. Customer shall defend, indemnify and hold harmless Inky and its respective officers, directors, members, managers employees, and agents (together with Inky, collectively “Inky Indemnified Persons”) from any third party claims, liabilities, counterclaims, suits, demands, actions, damages, (including, but not limited to, any judgement, arbitration award or court approved settlement and reasonable attorneys’ fees) or allegations arising out of any claim by a third party (i) that Customer Data, when used in accordance with this Agreement, infringe or misappropriate any Intellectual Property Rights of such third party, or (ii) arising from the gross negligence (including breach of confidentiality obligations), willful misconduct or fraud of Customer and/or its employees, directors, officers or agents in the performance of their duties under this Agreement, or (iii) based upon any finally adjudicated failure by Customer or its employees, directors, officers or agents to comply with applicable law and regulations in the performance of their obligations under this Agreement; provided, however, that Customer shall obtain the express prior written approval of Inky Indemnified Persons for any settlement that requires any specific performance or non-pecuniary remedy by Inky Indemnified Persons, requires the payment of any amount by Inky Indemnified Persons or does not provide an unconditional release to Inky Indemnified Persons, further provided Customer is promptly notified of any and all such claims, and given sole control over the defense and/or settlement thereof, and all reasonably requested assistance (at Customer’s expense) in connection therewith. Inky may retain its own counsel, at its own expense, subject to Customer’s rights herein.
7.1 Customer will pay Inky the applicable undisputed Fees as set forth in the Quotation (the “Fees”). The Quotation is attached hereto as Exhibit B. If in any given month during the Term, Customer’s use of the Services exceeds any use limitations set forth in the Quotation, Customer will be invoiced at the end of each calendar month for the excess usage at the rate set forth in the Quotation, and Customer agrees to pay the additional undisputed Fees without any right of set-off or deduction. All payments will be made in accordance with the Payment Terms herein unless otherwise set forth in the Quotation. Customer will pay Inky all undisputed fees for the Services provided under this Agreement within thirty (30) days of receipt by Customer of an invoice. In the event Customer’s account is more than sixty (60) days overdue on payment for any reason, Inky shall provide written notice to Customer of such condition and Customer shall have thirty (30) days from receipt of such notice to cure the overdue condition of its account. In the event Customer fails to cure the overdue condition of its account within thirty (30) days after receipt of such notice from Inky, then Inky shall have the right, in addition to its remedies under this Agreement or pursuant to applicable law, to immediately suspend access to or use of the Software without further notice to Customer, until Customer has paid in full the balance owed.
7.2 In the event this Agreement is renewed, fees may not be increased by no more than ten (10%) percent of the fees applicable in the immediately prior term.
7.3 Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Customer agrees to pay such taxes that are assessed and lawfully imposed on the Customer (and for which no exemption is available) (excluding taxes measured by or based on Inky’s gross or net income, or gross or net receipts (including any capital gains or minimum taxes) or capital, doing business, excess profits, net worth, franchise, property, and Inky personnel-related taxes) unless Customer has provided Inky with a valid exemption certificate authorized by the appropriate tax authority. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount to be paid by Customer on account thereof.
8.1 Subject to earlier termination as provided below, this Agreement begins on the Start Date specified in the Quotation and ends on the End Date specified in the Quotation (such period, the “Initial Term”). After the Initial Term, the Agreement shall automatically renew for one (1) year renewal terms (each, a “Renewal Term”) unless either party gives prior written notice of its intent not to renew the Agreement at least thirty (30) days before the end of the then-current Initial Term or Renewal Term, as applicable. The Initial Term and any Renewal Terms are referred to collectively as the “Term.” If the Quotation is for a month-to-month or open-ended subscription, either party may terminate this Agreement upon at least sixty (60) days’ prior written notice to the other party.
8.2 In the event of any material breach of this Agreement, the non-breaching party may terminate this Agreement prior to the end of the then-existing Term by giving thirty (30) days’ prior written notice to the breaching party; provided, however, that this Agreement will not terminate if the breaching party has cured the breach prior to the expiration of such thirty (30) day period.
8.3 Either party may terminate this Agreement, without notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings, (ii) upon the other party’s making an assignment for the benefit of creditors, or (iii) upon the other party’s dissolution or ceasing to do business or becoming insolvent, failing to pay, or admitting in writing its inability to pay debts as they become due.
8.4 Except for termination due to Customer’s breach of this Agreement and/or any Quotation, upon any termination Inky will refund to Customer the unused pro rata portion of any prepaid fees to the date of termination within thirty (30) days following termination.
8.5 Following termination and upon Customer’s request, within fifteen (15) days following termination, Inky will provide to Customer, at no charge to Customer, any Customer Data provided to Inky by Customer in in an industry standard encrypted electronic and will delete all copies of Customer Data from its computer systems and use reasonable efforts to delete any references to Customer from its computer systems, Anonymized Data excepted; provided, however, that Inky may retain a copy of Customer Data it deems necessary to comply with its internal retention policies or any obligations under all applicable law and any Confidential Information it believes cannot reasonably be destroyed (such as oral communications reflecting Confidential Information, firm electronic mail back-up records, back-up server tapes and any similar such automated record-keeping or other retention systems), which shall remain in perpetuity subject to the Confidentiality (Section 4) provision of this Agreement.
8.6 Inky may immediately suspend, terminate or otherwise deny Customer, any of its End Users, or any other person’s access to or use of all or any part of the Services or Software, without incurring any resulting obligation or liability, if: (a) Inky receives a judicial or other governmental demand or order, or law enforcement request that expressly or by reasonable implication requires Inky to do so; provided, however, that Inky shall notify Customer within ten (10) business days of this action to allow Customer, at its expense, to defend against such governmental demand or order, or law enforcement request; or (b) Inky believes, in its good faith discretion, that: (i) Customer or any End User has failed to comply with, any material term of this Agreement, or accessed or used the Services or Software beyond the scope of the rights granted or for a purpose not authorized under this Agreement; (ii) Customer or any End User is or has been involved in any fraudulent or unlawful activities relating to or in connection with any of the Services or Software; or (iii) this Agreement expires or is terminated. This Section does not limit any of Inky’s other rights or remedies, whether at law, in equity or under this Agreement.
8.7 Upon any termination or expiration of this Agreement, Customer shall promptly pay all undisputed amounts due and remaining payable to the date of such termination or expiration hereunder. Furthermore, upon expiration or termination of this Agreement, Customer will, and will ensure that all End Users will, immediately cease all use of the Services and Software and delete all copies of Inky Property in its control, and all rights licenses, consents and authorizations granted by Inky to Customer hereunder will immediately terminate. Upon Inky’s request, Customer will confirm in writing that it has complied with the terms of this provision.
8.8 All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, restrictions, accrued rights to payment, confidentiality obligations, intellectual property rights, warranty disclaimers, and limitations of liability.
9.1 Each party represents and warrants that it has all right, power and authority to enter into this Agreement and to grants the rights granted by it under this Agreement.
9.2 THE SERVICES AND INKY CONFIDENTIAL INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED "AS-IS," WITHOUT ANY WARRANTIES OF ANY KIND. INKY HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
9.3 No guarantee is made that the Software eliminate all risk of loss, damage, or unauthorized access to Customer’s information systems, software and equipment, or other unwanted effects on Customer’s infrastructure or business as the result of email-based threats (whether or not detected by the Software), and Inky assumes no obligation or liability with respect to any of the foregoing. It is not possible to detect or alert End Users to all threats, and there is no guarantee that End Users will observe and take appropriate action with respect to any alerts the Software provides. Inky is not responsible for any failure by any End User to observe or comprehend any alert issued by the Software, or for any action or inaction taken by End Users in response to any such alerts. The Software is intended to be part of, and not a substitute for, Customer’s implementation of sound information security practices.
9.4 EXCEPT AS PROVIDED IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES, THE SOFTWARE, AND ALL RELATED INFORMATION (INCLUDING THE CONFIDENTIAL INFORMATION OF INKY), TECHNOLOGY AND SERVICES PROVIDED BY OR ON BEHALF OF INKY ARE PROVIDED “AS IS” AND “WHERE IS” AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND INKY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF INKY IS ADVISED OF THE PURPOSE), OR ACCURACY. IN ADDITION, INKY DOES NOT WARRANT THAT THE SERVICES OR SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT THEY WILL MEET CUSTOMER’S NEEDS, OR THAT ANY DATA WILL NOT BE LOST.
9.5 Without limiting any of the foregoing and in addition thereto, no guarantee is made that the Services and the Software eliminate any or all risk of loss, damage, or unauthorized access to Customer’s information systems, software and equipment, or other unwanted effects on Customer’s infrastructure or business as the result of email-based threats (whether or not detected by the Software), and Inky assumes no obligation or liability with respect to any of the foregoing. It is not possible to detect or alert End Users to all threats, and there is no guarantee that End Users will observe and take appropriate action with respect to any alerts the Software provides. Inky is not responsible for any failure by any End User to observe or comprehend any alert issued by the Services, or for any action or inaction taken by End Users in response to any such alerts. The Services are intended to be part of, and not a substitute for, Customer’s implementation of sound information security practices.
9.6 Inky represents and warrants that (i) it will provide all Services in a professional and workmanlike manner consistent with then-existing industry standards and practices and will minimize errors and disruptions during the Term of this Agreement, (ii) the Services shall conform in all material respects to any documentation or specifications provided by Inky to Customer, (iii) the functionality of the Software will not be materially decreased during the Term, (iv) the Software’s source code will not contain any harmful computer code, viruses, worms, time-bombs, disabling features, tracking devices, trap doors, or code that will enable access to the Customer’s systems code, files, scripts, agents or programs intended to do harm, including without limitation Trojan horses, malware, vulnerabilities, advanced persistent threats, exploits, code injections and targeted attacks, (v) it owns all rights, title, and interest in and to, the Software and materials claimed to be its intellectual property which do not and will not violate the privacy rights, publicity rights, copyright rights, contract rights, intellectual property rights, or any other rights of any person or infringe or misappropriate any third party’s rights, and (vi) it will comply with all applicable laws, regulations, and ordinances applicable to its performance under this Agreement.
NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SOFTWARE, SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE SOFTWARE, SERVICES OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE TOTAL LIABILITY OF EITHER PARTY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, AN AMOUNT EQUAL TO THE FEES PAYABLE TO INKY HEREUNDER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE CLAIM (OR IF SUCH EVENT OCCURS IN THE FIRST TWELVE (12) MONTHS OF THE AGREEMENT TERM, THE AMOUNT ESTIMATED TO BE PAID IN THE FIRST TWELVE (12) MONTHS OF THE TERM). THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Notwithstanding anything else, Customer may not provide to any person or export or re-export or allow the export or re-export of the Services or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing the parties acknowledge and agree that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Use of the Service is representation and warranty that the user is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations. As defined in FAR section 2.101, any software and Documentation provided by Inky are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
12.1 Hosting Provider. Customer acknowledges and agrees that the Hosting Services are provided by and made available to the Customer by Amazon Web Services (the “Hosting Provider”), which is authorized to make modifications and enhancements to the Hosting Services at any time and in its discretion. The term Hosting Provider shall include any and all successors thereto. Customer’s ability to use the Software and Services is dependent upon the availability and capabilities of the Hosting Services and may be affected or limited by the Hosting Services. CUSTOMER IS AT ALL TIMES IS RESPONSIBLE FOR ADHERING TO THE ENCRYPTION METHODS PROVIDED BY INKY AND HOSTING PROVIDER WHILE CUSTOMER DATA IS IN TRANSIT TO AND FROM THE HOSTING PROVIDER OR WHEN PROCESSED OR STORED BY HOSTING PROVIDER.
12.2 Hosting Provider & Hosting Services. Customer further acknowledges and agrees that its use of the Software, Services, and the Hosting Services are subject in all respects to the following Hosting Provider terms and conditions and Data Processing Agreement, as amended from time to time or as replaced by substitute Hosting Providers (and automatically incorporated herein as and when amended), and any and all other Hosting Provider terms and conditions applicable to the Cloud Services at any time:
(a) Any and all other Hosting Provider terms and conditions applicable to the Hosting Services at any time or from time to time hereunder.
(b) Customer hereby acknowledges and agrees that the foregoing Hosting Provider terms and conditions describe, restrict, limit and disclaim certain of the rights, obligations, damages and liabilities granted or otherwise available to the Customer, to End Users and/or to other users under applicable law and the Customer hereby acknowledges and agrees that:
(ii) Customer hereby agrees to look solely to the Hosting Provider (and does hereby waive and release Inky from) any and all responsibilities, damages, claims and liabilities resulting or arising from any failure, unavailability, unsatisfactory performance, loss of use of or defect in the Hosting Services, all of which are hereby agreed by the Customer to be outside of Inky’s abilities or control.
13.1 Inky will implement and maintain a comprehensive written information security program that includes appropriate administrative, technical, and physical safeguards and other security measures designed to: (A) ensure the security and confidentiality of such Customer Data; (B) protect against any anticipated or reasonably likely threats or hazards to the security or integrity of such Customer Data; (C) protect against any actual or suspected unauthorized access to or use, disclosure, processing or acquisition of such Customer Data (hereinafter, an “Information Security Incident”); and (D) ensure the proper disposal of Customer Data. Inky shall promptly notify Customer in writing within 72 hours of its confirmation of the occurrence of a Information Security Incident of which Inky becomes aware. Such notice shall summarize in reasonable detail the effect on Customer, if known, of the Information Security Incident and the corrective action taken or to be taken by Inky. Inky shall within seven (7) days take all necessary and advisable corrective actions, and Customer shall cooperate fully with Inky in all reasonable and lawful efforts to prevent, mitigate or rectify such Information Security Incident. Inky shall (i) investigate such Information Security Incident; and (ii) to the extent reasonably practical, remediate the effects of such Information Security Incident. If Inky issues any press releases or reports or makes any public filings related to any Information Security Incident, then it will make a copy available to Customer. Inky will reasonably assist Customer with any and all reporting, audit, and/or notification obligations incurred by Customer relating to a Information Security Incident. If to the extent that the Information Security Incident was caused by Inky’s material breach of this Section 18.1, Inky shall reimburse Customer for costs incurred by Customer relating to with remediation, reporting, and notification of such incident, net of any insurance proceeds actually recovered by Customer.
13.2 To the extent that Customer Data is subject to the California Consumer Privacy Act (“CCPA”) or the General Data Protection Regulation (“GDPR”) of the European Union, the Data Processing Addendum, attached as Exhibit E, shall apply to such Customer Data, and is hereby incorporated into this Agreement by reference. Customer is solely responsible for determining whether Customer Data is subject to CCPA and GDPR.
14.1 Access Controls. Unauthorized Access. Inky will prevent unauthorized access to the computer systems, and any databases or files containing Customer Data. Inky will ensure that only users authorized pursuant to the terms of this Agreement shall have access to the Services and only for the purposes authorized by this Agreement. Inky will prevent unauthorized destruction, alteration or loss of Customer’s information contained in its computer systems. Inky will maintain an audit log of access to the Services, which it will provide to Customer promptly upon request. To maintain the integrity of its computer systems, Inky will install all security upgrades and patches with respect to its computer systems as soon as reasonably possible. If Inky is to be provided with access to Customer’s computer systems, in connection with this Agreement, Inky and its personnel will be required to execute a separate system access agreement before such access is granted, which agreement will be deemed a part of this Agreement.
14.2 Access List. At Customer’s request, Inky will provide Customer with a list of all users that are authorized to access Customer’s administration console.
14.3 Customer Access Control. Customer is responsible for establishing unique account credentials for any users who will have access to any administrative functions of the Services, and for removing account credentials for any administrative users if Customer wishes to suspend or terminate their access to administrative functions. Customer will be solely responsible for all activity occurring under user accounts established by or for Customer.
15.1 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
15.2 Both parties acknowledge and agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
15.3 No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has any authority of any kind to bind the other party in any respect whatsoever.
15.4 Inky shall be liable for the acts, omissions and compliance with this Agreement of subcontractors, employees and agents, and will inform such individuals of the obligations in this Agreement and warrants to Customer that such individuals will comply with the terms of this Agreement. Inky shall be permitted to use subcontractors, as needed, for the development and improvement of the Software’s source code, yet in no event will subcontractors have access to Customer Data.
15.5 All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by e-mail; upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid, and the day after it is sent, if sent for next day delivery by a nationally recognized overnight delivery service.
In the case of notice to Customer, to:
and, to Inky:
Inky Technology Corporation
Attn: Mr. John Lyons
5825 University Research Court
College Park, Maryland 20740.
Either party may, by like notice, specify or change an address to which notices and communications shall thereafter be sent.
15.6 This Agreement will be governed by the laws of the State of Maryland, U.S.A. without regard to its conflict of laws provisions. The federal and state courts located in or having jurisdiction over Montgomery County, Maryland will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement.
15.7 Neither party shall be liable under this Agreement for failure or delay in the performance of its obligations (except for payment of Fees) for reasons of strikes, shortages, riots, insurrection, fires, floods, storms, explosions, acts of God, war, governmental actions, labor conditions, earthquakes, material shortages, failures of internet service providers, utilities, and/or telecommunication providers, or any other cause which is beyond the reasonable control of such party.
15.8 Assignment. Customer may not assign or transfer this Agreement in whole or in part by operation of law or otherwise, without Inky’s prior written consent which consent shall not be unreasonably withheld or delayed. Any attempt by Customer to transfer or assign this Agreement without such written consent will be null and void and may be deemed by Inky to be a material breach of this Agreement. Notwithstanding the foregoing, either party may assign this Agreement without consent of the other party to the acquiring or surviving entity in a merger or acquisition in which either party is the acquired entity (whether by merger, reorganization, acquisition or sale of stock) or to the purchaser of all or substantially all of either party’s assets and shall provide prompt notice of such assignment to the other party. This Agreement will be binding upon the parties and their respective legal successors and permitted assigns.
The parties may execute this Agreement in one or more counterparts. Execution of counterparts may occur by manual signature, manual signature contained in an imaged document attached to an email transmission or by electronic signature. Each counterpart executed in accordance with the foregoing will be deemed an original, with all such counterparts together constituting one and the same instrument. The exchange of executed copies of this Agreement or of executed signature pages to this Agreement as an imaged document attached to an email transmission constitutes effective execution and delivery of this Agreement and may be used for all purposes in lieu of a manually executed copy of this Agreement.
(a) During the Term of this Agreement, Inky shall maintain insurance in the minimum amounts as follows:
(i) Worker’s Compensation Insurance:
• Statutory Workers Compensation in accordance with all state and local requirements of the state(s) in which Inky has a business office;
(ii) Employers Liability insurance with minimum occurrence limits as follows:
• Bodily injury by accident $100,000 each accident,
• Bodily injury by disease $500,000 policy limit, and
• Bodily injury by disease $100,000 each employee;
(iii) Commercial General Liability Insurance, written on an occurrence basis, including bodily injury, property damage, personal injury, advertising injury, products and completed operations, and contractual liability, in an amount not less than:
• Products/Completed Operations Aggregate Limit $1,000,000,
• Advertising Injury and Personal Injury Limit $1,000,000, and
• General Aggregate $2,000,000;
(iv) Property Insurance covering the replacement value of any and all property of Customer which may be in Inky’s care, custody and/or control during the term of this Agreement up to $5,000;
(v) Property Insurance covering the replacement value of any and all property of Customer that may be used on Customer premises in connection this Agreement, up to $10,000; (x) Cyberinsurance in the amount of $5,000,000 covering loss, damage, liability, cost or expense arising from, or in any way attributable to, an “Information Security Incident” involving Personal Information in Inky’s possession, custody or control, or for which Inky is otherwise responsible. The Cyberinsurance required to be maintained by Inky shall include, without limitation, coverage for legal fees; notifications; investigation/forensic and restoration costs; crisis management/public relations; credit monitoring/identity protection services; call center expenses; network interruption and extra expense/business interruption; and cyber threat extortion costs.
(b) All insurance policies provided and maintained by Inky shall be underwritten by insurers that are rated “A-VII” or higher. Inky shall be responsible for any self-insured retentions, deductibles or self-insurance associated with the coverages described in this Section.
(c) Inky’s coverage shall be primary and non-contributory to the fullest extent afforded by the policies and applicable law.
(d) The Commercial General Liability Insurance, Employer’s Liability Insurance, and Cyberinsurance shall include a waiver of the insurers’ subrogation rights and coverage and shall name Customer as an Additional Insured.
(e) Certificates of Insurance and evidence of the foregoing endorsements shall be provided to Customer upon request. Such Certificates shall provide that the insurer will give thirty (30) days’ written notice to Customer prior to cancellation of any policy or endorsement or any change in policy coverage or coverage amounts.
(f) The insurance requirements in this Section do not create a limitation of Inky’s liability under this Agreement. If any claim by Customer against Inky is a claim covered by an insurance policy maintained by Inky, any recovery of proceeds under such policy will be paid to Customer to the extent Customer’s damages exceed the limitations of liability contained in this Agreement.
Inky may use Customer’s name for advertising, trade or other commercial purposes without Customer’s express prior written consent. Inky and its contractors, employees and agents shall not hold themselves out as an employee, affiliate, or subsidiary of Customer at any time while performing services under this Agreement. Any materials provided to Inky by Customer pursuant to this Agreement or in connection with Inky’s performance of services hereunder, bearing any Customer names, logos, styles or trademarks may be used by Inky only as necessary to perform services under this Agreement.
This Agreement has been entered into for the sole benefit of the parties and their respective permitted successors and assigns. Except as specifically set forth in this Agreement, the parties do not intend the benefits of this Agreement to inure to any third party, and nothing contained herein shall be construed as creating any right, claim or cause of action in favor of any such third party against any party.
If the Services and/or Software are interrupted for any reason other than scheduled maintenance, Inky will activate its disaster recovery plan attached as Exhibit D so that the Services and/or Software will continue without further interruption and notify Customer of this activation. Inky will keep the disaster recovery plan as outlined in Exhibit D in effect during the term; provided, however, that Inky reserves the right to adjust the Disaster Recovery Plan on an as-needed business basis without notice to Customer, but in no event shall Inky significantly decrease the quality of the Disaster Recovery Plan. During the Term, Inky will test its disaster recovery plan not less often than annually and will promptly deliver the results of each test to Customer.
Agreed and accepted:
Inky Technology Corporation: