Customer Terms & Conditions
Last Updated: 07/12/2021
Last Reviews: 9/15/2022
These Terms of Service, including all policies, exhibits and documents referenced herein or in our order forms (collectively, "Agreement") govern your ("Customer’s") use of the products, software, technology, platforms, tools, website, and services provided by INSPECTIV, Inc. and its Affiliates ("INSPECTIV") in connection with an SO or SOW (collectively, the "Services"). By accessing and using the Service under any applicable SO or SOW, you agree to abide by these terms and conditions, as may be amended by INSPECTIV from time to time.
NOTICE OF ARBITRATION AGREEMENT AND CLASS ACTION WAIVER: THIS AGREEMENT INCLUDES A BINDING ARBITRATION CLAUSE AND A CLASS ACTION WAIVER, SET FORTH BELOW, WHICH AFFECT YOUR RIGHTS ABOUT RESOLVING ANY DISPUTE WITH INSPECTIV. PLEASE READ IT CAREFULLY.
- "Affiliate" means an entity Controlled by, Controlling or under common Control with a Party. An entity has "Control" of another entity when it owns more than 50% of equity or voting interests, or has primary operational or management responsibility.
- "Change of Control" means one or more transactions whereby (a) Control of a Party is transferred, (b) all or substantially all of the Party’s assets or securities are acquired or (c) the Party is merged or consolidated with another entity; provided, that such Party's equity owners immediately before the transaction(s) will, immediately afterward, hold less than 50% voting power of the successor entity.
- "Confidential Information" means non-public, proprietary or trade secret information, in any format, that the disclosing Party, its Affiliates or agents (each, "Disclosing Party") provides to the receiving Party, its Affiliates or agents (each, "Receiving Party") and that the Disclosing Party designated as confidential or that should reasonably have been understood as confidential and that (a) relates to Disclosing Party, its services, products, trade secrets, developments, know-how or personnel, or relates to a potential or actual Vulnerability contained in a Customer Product except when included in aggregated data that does not identify Customer or Customer Products; and (b) is received by Receiving Party from Disclosing Party during the Term.
- "INSPECTIV Technology" means proprietary technology owned or licensed by INSPECTIV, including Services, Software, tools, database, user interface and hardware designs, algorithms, architecture, class libraries, objects and documentation and any related Intellectual Property Rights worldwide, as well as any derivatives, improvements, enhancements or extensions conceived, developed or reduced to practice during the Term.
- "Customer Account" means the account used by Customer to access INSPECTIV’s platform or Services.
- "Customer Materials" means Customer Products, Testing Environments and other digital assets, data, materials and intellectual property provided by Customer to INSPECTIV.
- "Customer Product" means any software, technology or other product or service of Customer that Customer submits to INSPECTIV pursuant to any SO, SOW, and/or Rules of Engagement.
- "Feedback" means suggestions, recommendations, enhancement requests, data, statistics or other information provided by Customer or any other person regarding INSPECTIV Services.
- "Intellectual Property Rights" means all patents, copyrights, trade secrets, trademarks and service marks, trade dress, trade names, derivative works, goodwill and marketing rights related thereto, works of authorship, inventions, discoveries, improvements, methods, processes, formulas, designs, techniques, know how, all other intellectual property or proprietary rights (whether or not registered) and similar forms of protection worldwide, and all applications for and registrations in such rights.
- "Parties" means INSPECTIV and you (Customer), and "Party" means each of them.
- "Rules of Engagement" means the Parties’ mutually-agreed additional terms and conditions for conducting any Service.
- "Service Order" or "SO means INSPECTIV’s order form specifying the Services INSPECTIV will perform or provide and the associated fees or charges.
- "Services" has the meaning set forth in the first paragraph of this Agreement above and incudes, without limitation, INSPECTIV Technology and any Professional Services.
- "SOW" means INSPECTIV’s written specification of non-standard security-related Services ("Professional Services") that INSPECTIV will perform and the associated fees or charges.
- "Taxes" means any applicable taxes and like charges or surcharges, including excise, use, sales, value-added and other fees, surcharges and levies.
- "Testing Environment" means Customer’s environment provided or made available to INSPECTIV in order for INSPECTIV to perform the Services.
- "Vulnerability" means a weakness, susceptibility or flaw in a Customer Product that (a) enables an attacker to access a network or system or otherwise reduce its information security and (b) meets the terms of the applicable Rules of Engagement.
- INSPECTIV will provide the Services, including applicable INSPECTIV Technology, as specified in a mutually executed SO or SOW, subject to the terms of this Agreement. INSPECTIV will provide initial administrative login credentials (i.e., username and password) for use only by Customer. Customer may not share, transfer or assign the login credentials; but may reassign user account privileges to a new designated end user.
- Customer will obtain and maintain any equipment and ancillary services needed to access or use the Services or Testing Environment, including hardware, servers, software and operating systems (collectively, “Equipment”). Customer is solely responsible for the security of the Equipment, any assigned INSPECTIV accounts and login credentials and files, and any use of Customer’s INSPECTIV account or the Equipment, whether with or without Customer’s knowledge or consent.
- INSPECTIV may update any Policy from time to time. INSPECTIV further reserves the right to update or modify Services, without liability. INSPECTIV is not obligated to monitor use of Services, but may do so and may prohibit any use that INSPECTIV believes (or is alleged) to be in violation of any Policy or that otherwise adversely impacts Services. Customer assumes all liabilities related to Customer Materials.
- Prohibited Uses. Except as expressly authorized in writing by INSPECTIV, Customer will not, and will not permit any other person to: (a) modify, copy, display, perform, create derivate works from, or distribute INSPECTIV Technology; (b) resell, rent, market, license or sublicense, distribute or grant to a third party any right to access or use INSPECTIV Technology; (c) seek to access or use INSPECTIV Technology without authorization, including other than through an interface provided by INSPECTIV; (d) attempt to monitor, test, probe or scan INSPECTIV Technology, including to ascertain Vulnerabilities or breach security or authentication measures; (e) access or use INSPECTIV Technology in violation of any law, regulation, rule, order, treaty or ordinance; (f) distribute, store or transmit via INSPECTIV Technology any inappropriate, infringing or unlawful data or content; (g) distribute, store or transmit via INSPECTIV Technology any virus, Trojan horse, worm or other content that may be harmful to INSPECTIV, the Services or other customers or users; (h) harass, bully, stalk or harm any person; (i) misrepresent or impersonate any person or entity, or otherwise mislead or deceive any person, by technical or other means; (j) interfere with any part of INSPECTIV Technology; (k) interfere with any third party’s access or use of INSPECTIV Technology; (l) use any unauthorized data mining, scraping, robot or other automated data gathering; (m) decompile, disassemble, translate or otherwise reverse engineer or attempt to derive the source code for the Services or INSPECTIV Technology or any portion thereof; (n) take any action that may cause, in INSPECTIV’s sole, reasonable determination, an unreasonable or disproportionately excessive load on INSPECTIV’s systems; or (o) tamper with any Intellectual Property Right attribution or other proprietary notice in or on INSPECTIV Technology.
- Subcontractors. INSPECTIV may use subcontractors at its sole discretion in connection with any Service.
- Taxes. Customer will be responsible for all Taxes associated with Services, other than taxes based on INSPECTIV’s net income. If Customer provides INSPECTIV with a valid, duly executed tax exemption certificate, INSPECTIV will exempt Customer from Taxes per applicable law, effective on the date of receipt of the certificate. If Customer disputes the application of any Tax, Customer must give notice of the dispute within six months of the invoice date; otherwise, the application of Taxes as between INSPECTIV and Customer will be deemed correct and binding on Customer. If Customer is required by law to deduct or withhold from any payment due hereunder, the gross amount payable to INSPECTIV will be increased so that, after such deduction or withholding, the net amount received by INSPECTIV will not be less than INSPECTIV would have received absent such deduction or withholding.
- Fees and Charges. INSPECTIV will invoice Customer, and Customer agrees to pay INSPECTIV as set forth in the applicable SO or SOW or, if not set forth therein, within 30 days of invoice date. INSPECTIV reserves the right in its sole discretion to adjust applicable fees and charges at the end of the Initial Term or then-current Renewal Term, with 30 days prior notice to Customer. Invoices may be provided electronically.
- a. Payment of charges are set forth in the applicable SO or SOW. Customer will remit payment to INSPECTIV via INSPECTIV’s designated payment-processing platform or at INSPECTIV’s principal offices, unless INSPECTIV provides notice otherwise. All fees and charges will be payable in United States dollars. For any credit/debit card chargeback decided in INSPECTIV’s favor, INSPECTIV may invoice Customer a $25.00 charge to recover costs and pursue any other remedies available herein.
- b. If an invoice is unpaid within the agreed upon terms set forth in the SO or SOW, INSPECTIV may, in its sole discretion and upon notice, (i) suspend Services, (ii) apply a late charge on the unpaid amount equal to the lesser of 1.5% interest per month or the maximum rate allowed by law, (iii) require Customer to provide a deposit to guarantee payment and/or (iv) pursue any other available remedy.
- c. If Customer disputes in good faith an invoiced amount, Customer will, within 30 days of the invoice date, (i) pay the undisputed portion of the invoiced amount and (ii) provide detailed notice of the dispute and supporting documentation. The Parties then will work diligently to resolve the dispute. If Customer does not timely submit such materials, Customer waives all rights to dispute such amounts.
Grant of Rights, Intellectual Property
- INSPECTIV grants to Customer the non-exclusive right to access and use the Services during the Term only for the purposes of this Agreement. Subject to the foregoing, INSPECTIV retains all rights, title and interest in and to the Services, Software, inventions or other INSPECTIV Technology deployed or developed, all Feedback and any Intellectual Property Rights related thereto. Customer will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services, INSPECTIV Technology or any software (in source or object formats), documentation or data related thereto (collectively, “Software”); modify, translate, or create derivative works based on Services or INSPECTIV Technology (except to the extent expressly permitted by INSPECTIV or authorized within the Services); use Services or INSPECTIV Technology for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.
- Customer grants to INSPECTIV and its agents and subcontractors, the right to access and use, ingest, reproduce, duplicate, format, store, and display Customer Materials and Testing Environments in order to provide Services. Customer additionally grants to INSPECTIV a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate (a) Feedback without attribution to Customer and (b) Customer Materials and Testing Environments to create aggregated, anonymized information that does not identify Customer or an end user as the source of any specific piece of data, and does not include personally identifiable information (“Aggregate Data”). INSPECTIV will be the sole owner of the Aggregate Data and will be free to use and disclose the Aggregate Data. Subject to the foregoing, Customer retains all rights, title and interest in and to Customer Materials, Testing Environments and Intellectual Property Rights related thereto.
- If Customer provides INSPECTIV with access to any non-public website or Testing Environment, Customer will cooperate with INSPECTIV in its efforts to make such website or Testing Environment available through the Services and allow INSPECTIV to access such website or Testing Environment. If any integration, development or other custom work is necessary to make such website or Testing Environment available to INSPECTIV through the Services, Customer will pay INSPECTIV for such services on a time and materials basis at INSPECTIV’s then-current rates and will reimburse INSPECTIV for all Customer approved, out-of-pocket costs incurred in connection with the performance of such Services.
- Customer may use the Services to message or communicate with INSPECTIV. INSPECTIV reserves the right to monitor, intercept, review, store and/or delete such messages or communications, without further notice. Customer agrees that the identity of any INSPECTIV personnel will not be disclosed or otherwise made available to Customer by INSPECTIV or through the Services, and that INSPECTIV has no obligation to disclose the identity of any INSPECTIV personnel to Customer.
The Parties acknowledge and agree that (1) by providing Services, INSPECTIV, its Affiliates and agents will come into possession of certain Customer data, (2) any processing of such data by INSPECTIV occurs exclusively at Customer’s direction and discretion, as exercised through workflows or other agreed means and (3) INSPECTIV, its Affiliates and agents may use, process and/or transfer Customer data, including transfers to entities in countries that do not provide statutory protections for personal data (a) in connection with Services and (b) to incorporate Customer data into databases controlled by INSPECTIV and its Affiliates for purposes of providing the Services hereunder and for Services improvement.
During the Term and for three years after, Receiving Party will not use, copy or disclose Confidential Information except as permitted herein. All copies of Confidential Information remain Disclosing Party’s sole property. Receiving Party will protect Disclosing Party’s Confidential Information using at least the same procedures as it uses to protect its own Confidential Information, but no less than reasonable procedures. Receiving Party may disclose Confidential Information to its employees, consultants and contractors who have a need to know in connection with this Agreement and who have executed a similarly stringent confidentiality agreement or are subject to a professional duty of confidentiality. Receiving Party also may disclose Confidential Information pursuant to applicable law, regulation, subpoena or other order of a court of competent jurisdiction (collectively, “Legal Requirement”) or to establish rights or obligations under this Agreement in any proceeding; provided, that (1) reasonable prior notice, unless legally prohibited, is provided to Disclosing Party to permit it the opportunity to contest such disclosure, (2) Receiving Party cooperates with Disclosing Party to comply with any applicable protective order and (3) Receiving Party discloses only to the extent necessary to comply with the Legal Requirement or to establish such rights or obligations. Receiving Party will notify Disclosing Party upon discovery of any unauthorized use or disclosure of Confidential Information and will cooperate to help prevent further unauthorized use or disclosure. These confidentiality obligations do not apply to Confidential Information which (a) was in the other's possession before receipt from Disclosing party; (b) was received in good faith from a third party not subject to a confidential obligation to the other Party; (c) now is or later becomes publicly known through no breach of confidential obligation by Receiving Party; (d) was developed by Receiving Party without having access to the Confidential Information received from the other Party; or (e) is authorized in writing by Disclosing Party to be released or is designated in writing by Disclosing Party as no longer confidential. Receiving Party acknowledges that Disclosing Party’s Confidential Information is valuable and unique and that unauthorized use or disclosure will result in irreparable injury to Disclosing Party, for which monetary damages are inadequate. If Receiving Party violates or threatens to violate this Section 6, Disclosing Party may seek injunctive relief without posting bond, in addition to any other available remedies.
Representations and Warranties
Each Party represents and warrants that (a) it has the full right, power and authority to enter into and perform the Agreement and grant the rights granted herein; (b) it has, and will comply with, all required authorizations, licenses or permits in order to enter into and perform the obligations herein; (c) it is not bound by any obligation that would prevent it from entering into or performing the obligations herein; (d) the execution, delivery and performance of this Agreement has been duly authorized by all necessary corporate action; and (e) it will comply with all applicable laws, rules and regulations in its performance hereunder.
Term and Termination
- This Agreement will continue for one year from the Effective Date (“Initial Term”) unless terminated earlier for cause, and then will renew automatically for successive periods of the same length (each, a “Renewal Term”) unless, at least 30 days before expiration, a Party provides notice of non-renewal. The Initial Term and all Renewal Terms are collectively, the “Term”. If the Parties enter an SO or SOW that, subject to any renewals thereof, expires after the Term, the Term will expire on the same date as such SO or SOW.
- Termination for Cause.
- By Customer. Customer may terminate this Agreement or any SO or SOW for cause, upon notice to INSPECTIV if: (i) a receiver or administrator is appointed for INSPECTIV or its property; (ii) INSPECTIV makes a general assignment for the benefit of its creditors; (iii) INSPECTIV is involved in proceedings under any bankruptcy, insolvency or debtor’s relief law which are not dismissed within 30 days; (iv) INSPECTIV is liquidated or dissolved; (v) INSPECTIV ceases doing business or (vi) INSPECTIV materially breaches this Agreement and if such breach is curable, the breach continues uncured for 10 days after receipt of notice from Customer.
- By INSPECTIV. INSPECTIV may terminate this Agreement and/or any SO or SOW for cause and/or suspend Services, upon notice to Customer if (i) a receiver or administrator is appointed for Customer or its property; (ii) Customer makes a general assignment for the benefit of its creditors; (iii) Customer is involved in proceedings under any bankruptcy, insolvency or debtor’s relief law which are not dismissed within 30 days; (iv) Customer is liquidated or dissolved; (v) Customer ceases doing business; (vi) Customer fails to timely pay all undisputed portions of invoiced fees or charges per this Agreement; (vii) Customer materially breaches this Agreement and if such breach is curable, the breach continues uncured for 10 days after receipt of notice from INSPECTIV. INSPECTIV may terminate this Agreement immediately, with or without notice if INSPECTIV determines, in its sole discretion, that any Customer Materials violate the warranties set forth in Section 7 above.
- Termination by INSPECTIV for Change of Control. If Customer undergoes a Change of Control, INSPECTIV may terminate the Agreement upon 30 days’ notice to Customer's successor; provided, that, INSPECTIV has determined in its sole discretion that such successor is (a) unable to assume and fulfill Customer’s obligations herein or (b) is a direct competitor of INSPECTIV.
- Effect of Termination.
- Upon expiration or termination of this Agreement and/or applicable SO or SOW for any reason, (i) all Customer rights to access or use Services and any other INSPECTIV Technology and Intellectual Property Rights will terminate and INSPECTIV will cease providing same, (ii) Customer will pay to INSPECTIV all fees or charges accrued but unpaid for Services provided and not subject to dispute hereunder, (iii) all liabilities accrued before the expiration/termination date will survive and (iv) Customer will return or destroy, at Customer’s option, and certify in writing to INSPECTIV such destruction of, all copies of INSPECTIV’s Confidential Information. Notwithstanding anything to the contrary provided in this Agreement, each Party may retain an archival copy of the other Party’s Confidential Information and disclose portions of the archival copy to its licensing, accreditation or other regulatory bodies provided such recipients are subject to confidentiality requirements at least as restrictive as those provided herein. Confidential Information securely stored using third-party applications will not constitute a disclosure of such Confidential Information. Confidential Information incidentally captured by system-backup media need not be returned or destroyed, provided that the backup media are maintained in confidence.
- If Customer terminates this Agreement, an SO or SOW early without cause or if INSPECTIV terminates the Agreement, an SO or SOW for cause, Customer will be invoiced and pay to INSPECTIV an early termination fee in an amount equal to Customer’s recurring charges, if any, multiplied by the number of months remaining in the Term, or as otherwise set forth in the applicable SO or SOW. This early termination fee is agreed by the Parties to be liquidated damages and not a penalty.
INSPECTIV will use commercially reasonable efforts to maintain the Services in a manner that minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by INSPECTIV or by third-party providers, or due to other causes beyond INSPECTIV’s control; but INSPECTIV will use commercially reasonable efforts to provide advanced notice of any scheduled disruption. However, INSPECTIV does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED “AS IS” AND WITH ALL FAULTS, AND INSPECTIV DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE, TO THE FULLEST EXTENT PERMITTED BY LAW.
Limitation of Liability
IN NO EVENT will INSPECTIV be liable for indirect, incidental, SPECIAL, CONSEQUENTIAL, PUNITIVE or EXEMPLARY damages OF ANY KIND, including lost BUSINESS, REVENUES, CUSTOMERS, CONTRACTS, PROFITS OR GOODWILL, LOST OR DAMAGED Customer materials OR customer DATA, BUSINESS INTERRUPTION OR REPLACEMENT SERVICES, however caused and REGARDLESS OF THEORY OF LIABILITY, WHETHER OR NOT inspectiv KNEW OR HAD REASON TO KNOW OF THE POSSIBILITY of such damages AND WHETHER or not THE REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE. inspectiv’s AGGREGATE liability in connection with THE Agreement is limited to the amount OF FEES OR CHARGES PAID by Customer to INSPECTIV DURING the 12-month PERIOD BEFORE the date on which ANY claim arose.
As part of the Service, INSPECTIV provides Customer with access to the INSPECTIV cyber security marketplace to engage separate third parties (“Security Researchers”) that conduct security research and identification of security Vulnerabilities for Customer in Customer’s system(s), which INSPECTIV relies on and in turn reports to Customer. THESE SECURITY RESEARCHERS ARE INDEPENDENT THIRD PARTIES WHO ARE NOT EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, PERSONNEL, AGENTS, FIDUCIARIES, REPRESENTATIVES, OR AFFILIATES OF INSPECTIV. THEIR CONDUCT IS NOT CONTROLLED BY OR WITHIN THE CONTROL OF INSPECTIV.
AS SUCH AND NOTWITHSTANDING ANYTHING TO THE CONTRARY: (A) inspectiv cannot and does not make any warranties about the quality, safety, background, credentials, or legality of the security researchers or their actions, (B) YOU RELEASE INSPECTIV FROM ANY CLAIMS RELATED TO SERVICES, GOODS, OR ANY OTHER ENGAGEMENT OF SECURITY RESEARCHERS, WHETHER FOR NON-PERFORMANCE, BREACH, INFRINGEMENT, DEFECTIVE PERFORMANCE, OR OTHERWISE, AND (C) YOU HEREBY RELEASE INSPECTIV FROM ANY AND ALL LIABILITY, RESPONSIBILITY, OR INVOLVEMENT IN ANY DISPUTES RELATED TO SERVICES OR ACTIONS OF SECURITY RESEARCHERS. YOUR SOLE CLAIM, RIGHT, RECOVERY, OR REMEDY SHALL BE AGAINST AND LIE directly and exclusively WITH THE SECURITY RESEARCHER, AND NOT AGAINST OR WITH INSPECTIV.
- Customer will, at its cost, defend and indemnify INSPECTIV and its officers, directors, employees, agents and permitted successors and assigns (each a "INSPECTIV Indemnitee") through final judgment or settlement, from and against any third-party claim, action, suit, proceeding, judgments, settlements, losses, damages, expenses (including reasonable legal fees and expenses) and costs (including allocable costs of in-house counsel) ("Claim") brought against a INSPECTIV Indemnitee arising out, related to or based upon (a) a material breach of Customer’s obligations hereunder, (b) Customer Materials or (c) unauthorized use of or access to Services or Software.
- INSPECTIV will, at its cost, defend and indemnify Customer and its officers, directors, employees, agents and permitted successors and assigns (each a "Customer Indemnitee") through final judgment or settlement, from and against any Claim brought against a Customer Indemnitee arising out, related to or based upon (a) a material breach of INSPECTIV’s obligations hereunder or (b) any allegation that Customer’s use of the INSPECTIV Technology or Services in accordance with this Agreement infringes or misappropriates the Intellectual Property Rights of a third party, unless such Claim is attributable to the following: (i) any unauthorized modification or enhancement of INSPECTIV Technology or Services or (ii) use of the INSPECTIV Technology and/or Services in combination with other products or services not provided or approved by INSPECTIV, where the violation, infringement or misappropriation would not have occurred but for such combination.
- Process. The INSPECTIV Indemnitee or Customer Indemnitee, as applicable (“Indemnified Party”), will (a) promptly provide notice to the other Party hereto (“Indemnifying Party”) of any indemnifiable Claim provided, that, any delay in providing notice will not relieve Indemnifying Party of its obligations hereunder, except to the extent that Indemnifying Party is materially prejudiced by the delay, (b) permit Indemnifying Party to control the defense of such Claim and (c) provide reasonable assistance at Indemnifying Party’s cost. Subject to the foregoing, Indemnifying Party may select legal counsel to represent the Indemnified Party (such counsel to be reasonably satisfactory to the Indemnified Party) and to otherwise control the defense. If Indemnifying Party chooses to control the defense, the Indemnified Party may fully participate in the defense at its own cost. If Indemnifying Party, within a reasonable time after receipt of notice of Claim, fails to defend the Indemnified Party, the Indemnified Party may defend and compromise or settle the Claim at Indemnifying Party’s reasonable cost; provided, that, in any event, Indemnifying Party may not consent to entry of any judgment or settlement that imposes liability or obligations on an Indemnified Party or diminishes an Indemnified Party’s rights, without obtaining the affected Indemnified Party’s express prior consent, such consent not to be unreasonably withheld or delayed.
Unless otherwise agreed by the Parties in writing, INSPECTIV may issue press releases or other communications regarding the relationship created by this Agreement or the Services.
- No Third-Party Beneficiaries. Other than INSPECTIV Affiliates providing any Services, there are no third-party beneficiaries to this Agreement.
- Force Majeure. Neither Party will be liable by reason of any failure or delay in performing its obligations hereunder due to any act of God, war, military action, governmental restriction or action, civil disorder or unrest, terrorism, explosion, accident, fire, flood or other natural disaster, vandalism, sabotage, labor condition, shortage, embargo, malicious code or online attacks (provided, that the Party claiming such cause has taken commercially reasonable steps to prevent such attacks) or other cause beyond such Party’s reasonable control (each, a "Force Majeure Event"). Notwithstanding the foregoing, Customer’s obligation to pay will not be delayed or excused by a Force Majeure Event to the extent of Services provided before a Force Majeure Event. A Party whose performance is affected by a Force Majeure Event will promptly provide notice with relevant details to the other Party and the notifying Party’s obligations will be suspended to the extent caused by such Force Majeure Event for as long as it continues; and the time to perform the affected obligation will be extended by the delay caused by the Force Majeure Event. If the affected Party is prevented by the Force Majeure Event from performing its obligations with regard to a Service for 30 days, either Party may in its sole discretion immediately terminate the affected Service upon notice to the other Party; provided, that, if Customer terminates, Customer must first provide INSPECTIV a reasonable opportunity to comparably replace the affected Service. Upon such termination, INSPECTIV is entitled to payment of all accrued but unpaid fees or charges incurred through the termination date. The Parties otherwise will bear their own costs and INSPECTIV will be under no further liability to perform the affected Services.
- Choice of Law, Forum. This Agreement will be construed and enforced in accordance with the laws of the State of California, without regard to conflict of laws principles. Each Party agrees that any action, suit or other proceeding based upon or arising from this Agreement (each, a "Dispute") will be brought and maintained only in a Federal or State court of competent jurisdiction located in Los Angeles County, California. Each Party consents to the mandatory jurisdiction and venue of such courts and waives any right to object to jurisdiction and venue. The prevailing Party in any Dispute will be entitled to recovery of its reasonable attorneys' fees and costs. The Uniform Computer Information Transactions Act and United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
- Relationship of Parties. The Parties are independent contractors. This Agreement does not establish a partnership, joint venture, association or agency relationship or other co-operative entity between the Parties.
- Waiver, Changes. No failure or delay by a Party to exercise or enforce any right hereunder will waive any such right. INSPECTIV may amend this Agreement from time to time in its sole and absolute discretion. While INSPECTIV will endeavor to provide notice, it is not required to.
- Severability. If any provision hereunder is held by a court of competent jurisdiction to be unenforceable or contrary to law, such holding will not render the Agreement unenforceable or contrary to law as a whole; and such provision will be changed and interpreted to best accomplish the objectives of the provision subject to applicable law.
- Assignment. Neither Party may assign this Agreement without the other Party’s express prior consent except that INSPECTIV may freely assign its rights and obligations under this Agreement, in whole or in part, (a) to a parent or Affiliate or (b) in connection with a Change of Control. This Agreement will be binding upon and inure to the benefit of all permitted successors and assigns. Any assignment in contravention of this section is null and void.
- Export Controls. The Services, INSPECTIV Technology, software, Confidential Information, hardware, technology, devices or other materials or information provided by INSPECTIV hereunder may be protected under, and subject to, the United States Government import and export control laws, including the Export Administration Regulations (15 C.F.R. Parts 730 et seq.), as well as those of a non-US equivalent. Accordingly, their use, import, export and re-export may be restricted, prohibited or require securing licenses. Customer agrees not to export or re-export any such materials or information to any destination or entity prohibited or restricted under US law, unless it has first obtained express prior consent of INSPECTIV and obtained all required licenses and authorizations.
- Survival. The Parties’ rights and obligations set forth in Sections 3.3(c) (Invoice Disputes), 4 (Intellectual Property), 5 (Customer Data), 6 (Confidentiality), 9 (Disclaimer), 10 (Limitation of Liability), 11 (Release), 12 (Indemnification), 13 (Publicity), 14 (Miscellaneous) will survive termination or expiration of this Agreement.
- Entire Agreement. This Agreement, all SOs, SOWs or addenda and exhibits between the Parties are incorporated herein by reference, constitute the Parties’ entire agreement with respect to its subject matter and supersede all other prior or contemporaneous representations, understandings or agreements; and there are no other representations, understandings or agreements between the Parties relative to such subject matter.
- Remedies. Unless otherwise expressly stated, to the extent permitted by applicable law, the Parties’ rights and remedies provided for hereunder are cumulative and in addition to any other rights and remedies at law or equity.
- Construction. Descriptive headings are for convenience only and will not affect the construction of this Agreement. “Include,” “including” or “e.g.” mean “include, without limitation”. “Day” means calendar day unless otherwise indicated. Terms with well-known technical or industry meanings are construed as such. Each Party and its counsel have fully reviewed and contributed to this Agreement. Any rule of construction that ambiguities are resolved against the drafter will not apply in interpreting the Agreement.
- Arbitration of Disputes, Class Action Waiver. Any claim or dispute relating to this Agreement (“Claim”) will be exclusively resolved by binding arbitration rather than in court, except that qualifying claims may be asserted in small claims court. The Federal Arbitration Act and federal arbitration law will apply to Claims. In arbitration, there is no judge or jury, and court review of an award may be limited; but an arbitrator may award the same damages and relief as a court and must follow the Agreement just as a court would. The Parties hereby agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action.
Arbitration will be conducted in Los Angeles, California unless you choose to have it conducted by telephone, based on written submissions, or the Parties mutually agree to another location. The arbitration will be conducted under JAMS’ Comprehensive Arbitration Rules and Procedures, per the Expedited Procedures in those Rules. See http://www.jamsadr.com/rules-comprehensive-arbitration/ or call 1-800-352-5267. The JAMS rules will govern payment of filing, administration and arbitrator fees. The arbitrator will award to the prevailing party its costs and reasonable attorneys' fees, or an appropriate percentage thereof if the arbitrator determines the prevailing party won some but not all Claims. Judgment on an arbitration award may be entered in any court with competent jurisdiction.
The Parties hereby agree that either Party may sue in court to enjoin infringement or other misuse of intellectual property rights. If such a claim proceeds in court, you and INSPECTIV waive any right to a jury trial, the exclusive jurisdiction and venue of that action will be the state or federal courts in Los Angeles, California and the Parties consent to the mandatory jurisdiction and venue of these respective courts.
- Notices. All notices, requests, consents and other communications hereunder will be in writing, in English and deemed conclusively made (a) if personally delivered, upon delivery, (b) if delivered by overnight courier or private mail service, upon receipt, (c) if delivered by certified mail return receipt requested, five days from mail deposit or (d) if delivered by e-mail or fax, upon delivery confirmation. If to INSPECTIV: INSPECTIV, Inc., 425 15th Street, #3013, Manhattan Beach, California 90266, Attention: Joseph Melika, CEO, with a copy (which shall not constitute notice) to e-mail: legal@Inspectiv.com. If to Customer: at the contact information specified in the applicable SO or SOW. Either Party may change its contact information upon notice to the other Party. If the receiving Party refuses receipt or fails to notify the other Party of receipt of notice, notice will be deemed conclusively made seven days after delivery was reasonably initiated.