Impart Security Master Subscription Agreement

Impart Security Master Subscription Agreement

This Impart Security Master Subscription Agreement is made as effective as of the effective date of an applicable signed order form ( “Order Form” and such date the “Effective Date”) and between Impart Security Inc., a Delaware corporation, with a principal place of business at 584 Castro St #2229, San Francisco, CA 94114 (“Impart”), and the customer  set forth on the Order Form and accepts this MSA (each, a “Customer”) for the purpose of granting Customer a limited subscription to use Impart’s cloud, intermediary services, application programming interfaces, user interfaces, software components, support, professional, or other services (the “Services”).

CUSTOMER AND IMPART AGREE AS FOLLOWS:

1. Certain Definitions. For purposes of this Agreement, the following definitions apply:

“Affiliate” means any entity Controlling, Controlled by or under common Control with a party.

“Agreement” means this Master Subscription Agreement, including all the attachments and exhibits hereto, and any terms incorporated herein by reference.

“Control” and its grammatical variants means (i) a general partnership interest in a partnership, (ii) the beneficial ownership of a majority of the outstanding equity entitled to vote for directors, or (iii) the power to direct or cause the direction of the management and policies of such entity whether by contract or otherwise.

“Customer System Data” means the Customer’s or Customer Affiliates’ system’s specific data or information collected and transmitted by Impart in connection with Impart’s delivery of the Services hereunder.  For clarity, Customer System Data can include the following types of information: 1) malicious or anomalous http request and response metadata (e.g. requestor IP address, request headers, request body (if body is the location of the attack vector) and response headers with default and customer defined sensitive data redacted when deployed on prem on Customer owned and/or operated and controlled systems; 2) the Customer and/or Customer Affiliate host application system information, but only if and when software components of the Services are deployed on prem on Customer owned and/or operated and controlled systems (e.g. number of host CPUs, speed of host CPUs, host OS/version, host IP address, host RAM size and host name), and 3) customer provided documentation (e.g. API specifications). For clarity, Customer System Data excludes any Network Effect that may be derived from Customer System Data or other customers’ system data.

“Documentation” means the written and/or electronic end user or technical documentation pertaining to the Services that is provided by Impart to Customer together with the delivery of the Services.

“Internal Business Purposes” means the access and use of the Services by Users on behalf of and for the benefit of Customer or Customer Affiliates, solely for the purposes of Customer’s or Customer Affiliates’ exclusive internal use and benefit.

“License Parameter(s)” means any factor that serves as a basis for calculating the amount of fees payable by Customer for a subscription and/or license to the Services as identified in the Order.

“Network Effect” means data collected by Impart related to the functional performance of the Services or anomalous activity or suspicious behavior detected by the Services (“Network Effect”). For clarity, Network Effect shall never be shared with any other Impart customers in any manner that would be associated with, identify, or be tied to Customer or Customer’s systems.

“Order” means an online or written ordering document which incorporates the Agreement and identifies the commercial terms of the purchase, namely, for example, the Services ordered, the applicable License Parameters, the Subscription Term, and any pricing and payment terms relating to the same (each as relevant).  Multiple Orders may apply if additional licenses, products, or services are purchased, provided that, unless expressly stated otherwise, terms specified in an Order shall be relevant only to that Order.

“Subscription Term” means the term of the license granted with respect to the Services as identified on the relevant Order, or if no term is specified then one (1) year. For clarity, the Subscription Term shall be subject to the termination rights specified herein.

“Upgrades” means error corrections, bug fixes, software updates and software upgrades to the Services that are released or made available during the relevant Subscription Term and made generally available by Impart to other Impart enterprise customers purchasing a license to the relevant Services.

“User” means any individual authorized by Customer (or any Customer Affiliate or contractor) to access and/or use the Services on behalf of Customer (and/or Customer Affiliate(s)).

2. Impart’s Obligations

1. Services. Impart will make the Services available to Customer according to one or more Orders. The start date of the Subscription Term for any particular Order shall be the start date identified on the relevant Order, and if no start date is identified then the start date shall be the effective date of the relevant Order.
2. Compliance with Laws. Impart shall comply with all laws and governmental regulations applicable to the Services.
3. Personnel and Performance. Impart will be responsible for the performance of its personnel (including employees and contractors) and their compliance with the Agreement. Impart enters into the Agreement on behalf of its Affiliates. An “Affiliate” of a party is any entity (a) that the party Controls; (b) that the party is Controlled by; or (c) with which the party is under common Control, where “Control” means direct or indirect control (including by ownership) of fifty percent (50%) of an entity’s voting interests.
4. License. The Services, the Documentation and the Network Effect are the proprietary information of Impart. Subject to the terms and conditions of this Agreement, during the Subscription Term, Impart grants to Customer a non-exclusive, non-transferable and non-sublicensable license to use the Documentation, and the software and application programming interfaces made available by Impart to Customer as part of the Services, solely for Internal Business Purposes during the term of any applicable Order. Subject to the limited rights expressly granted in the Agreement, Impart and Impart’s licensors reserve all right, title, and interest in and to the Services, the Documentation, and the Network Effect, including all related intellectual property rights. No rights are granted to Customer except as expressly set forth in the Agreement. No rights are granted to Impart except as expressly set forth in the Agreement.
5. Security; Compliance. Impart shall maintain administrative, physical, and technical safeguards designed to protect the security, confidentiality and integrity of Customer System Data. ****Impart shall maintain at all times during the term of this Agreement an information security management program (“ISMP”) that aligns with industry standards and Impart shall comply with such ISMP. At a minimum Impart shall meet the minimum requirements outlined in Appendix 2 to Exhibit A. The Services will not transmit code, files, scripts, agents, or programs intended to do harm, including, viruses, worms, time bombs, and Trojan horses (“Malicious Code”).
6. Customer System Data; Data Processing Agreement.  Impart will process, transmit and store personal data present in Customer System Data in accordance with the Data Processing Agreement attached as Exhibit A, available at (www.impart.security/data-processing). Impart shall not sell nor disclose any Customer System Data. Impart shall not disclose any Network Effect in a manner that identifies Customer. The Services do not require transmission or collection of any sensitive or personally identifiable information to function other than IP addresses that are identified as the initiator of anomalous and/or potentially malicious requests and related metadata. The software components of the Services are designed minimize the sensitive data shared with Impart, which may include automatically redacting other sensitive or personally identifiable information in fields that are known to commonly contain sensitive or personally identifiable information before transmission of Customer System Data to Impart and anonymizing certain data fields before transmission to Impart. Also, the software components of the Services are designed to allow Customer to manually configure the Services to redact any information that Customer deems sensitive so as to limit the sensitive data maintained by the Services or transferred between the components of the Services. It is Customer’s sole and exclusive responsibility to ensure that the Services are configured in a manner that does not transmit any sensitive and/or personally identifiable information to Impart which is not required for the functionality of the Services.

3. Customer’s Obligations

3.1 Personnel and Performance. Customer shall be responsible for the performance of its personnel (including employees and contractors) in compliance with the Agreement. Customer enters into the Agreement on behalf of its Affiliates that make use of the Services.‍

3.2 Non-Impart Services. Customer may choose to use or offer services not provided by Impart (“Non-Impart Services”) with the Services and in doing so grants Impart permission to interoperate with the Non-Impart Services as directed by Customer or the Non-Impart Services. For clarity, Impart will not require Customer to use Non-Impart Services. Unless specified in an Order: (a) Impart does not warrant or support Non-Impart Services; (b) as between Impart and Customer, Customer assumes all responsibility for the Non-Impart Services; and (c) Impart shall have no liability for, and Customer is not relieved of any obligations under the Agreement or entitled to any refund, credit, or other compensation due to any unavailability of the Non-Impart Services or any change in the ability of Impart to interoperate with the Non-Impart Services.

3.3 Restrictions. Except as otherwise expressly permitted under this Agreement, Customer shall not (and shall not authorize or permit any third party including any Users to): (i) copy, use or access the Services or any portion thereof in excess of or beyond the License Parameters and/or other restrictions/limitations described in this Agreement or the Order; ****(ii) use the Services on unauthorized equipment or products (i.e. not identified in Documentation); (iii) modify the Services or create derivative works based upon the Services or reverse engineer or decompile, decrypt, disassemble or otherwise reduce the Services to human-readable form, except and only to the extent any foregoing restriction is prohibited by applicable law; (iv) create a program or a set of programs similar or identical to the Services, using any elements or functionalities of the Services to do so; (v) use the Services in any way that is unlawful or in violation in any applicable laws, or allow Services to be used in any embargoed country or region; (vi) distribute, sell, license, or otherwise provide or allow access to the Services to third parties other than Users; (vii) use or permit the Services to be used to perform services for third parties, whether on a service bureau, SaaS, time sharing basis or otherwise; (viii) install the software components of the Services on computers or systems which are not owned or controlled by Customer or its Affiliates; (ix) release, publish, and/or otherwise make available to any third party the results of any performance or functional evaluation of the Services without the prior written approval of Impart; (x) share user accounts for access/use of the Services; (xi) alter or remove any proprietary notices or legends contained on or in the Services; or (xii) attempt to defeat, avoid, bypass, remove, deactivate or otherwise circumvent any protection mechanisms in the Services, including without limitation any such mechanism used to restrict or control the functionality of the Services. For the avoidance of doubt, all restrictions specified herein with respect to the Services apply to all components (including software and the Documentation). There are no implied licenses granted by Impart under this Agreement. It is the responsibility of the Customer to ensure that all User(s) are aware of the terms and conditions (including the restrictions) of this Agreement. Customer agrees that all actions or inactions of User(s) shall be deemed an action or inaction by Customer and that Customer shall be liable and responsible for any action or inaction of the User(s) which is in violation of the terms of this Agreement.

4. Support and Maintenance. As part of its purchase of a subscription to the Services*,* Customer shall be entitled to receive Support and Maintenance. “Support and Maintenance” shall mean the standard support and maintenance services delivered by Impart in connection with the relevant subscription to the Services purchased. For clarity, such Support and Maintenance is included as part of the subscription to the Services.

5. Technical/Training Assistance. If Customer orders technical or training assistance aspects of the Services, including deployment, training, configuration, or other consulting professional services related to assisting Customer in the use of the Services (collectively “Technical/Training Assistance”), then such Technical/Training Assistance shall be delivered subject to the terms and conditions of this Agreement and the relevant Order. For clarity, no work for hire shall be provided hereunder and the only Technical/Training Assistance delivered hereunder shall relate to use of the Services by Customer. Customer agrees that it will reasonably cooperate with Impart in connection with the performance of such Technical/Training Assistance under this Agreement by making available such personnel and information as may be reasonably required for Impart to perform Technical/Training Assistance. If applicable, Customer will reimburse Impart for reasonable and pre-approved travel and lodging expenses as incurred by Impart in connection with any Technical/Training Assistance. Technical/Training Assistance will be delivered during the timelines identified in the Order, provided that if no timelines are specified then Technical/Training Assistance will only be delivered for one year from the Order effective date (“Delivery Period”). If Customer does not request delivery of the Technical/Training Assistance ordered within such Delivery Period, then Technical/Training Assistance will be deemed delivered at the end of the relevant Delivery Period.‍

6. Beta Services. From time to time, Impart may offer services identified as evaluation, beta, pilot, developer preview, or by a description of similar import (“Beta Services”). Customer may accept or decline Beta Services in its discretion. If accepted, Beta Services are provided only for evaluation purposes. Impart may discontinue Beta Services and Customers access thereto at any time in its sole discretion and may never make Beta Services generally available. ALL BETA SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND. IMPART DISCLAIMS ALL OBLIGATION AND LIABILITY UNDER THE AGREEMENT FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH A BETA SERVICE. ANY DATA ENTERED INTO BETA SERVICES, AND ANY CUSTOMIZATIONS MADE TO BETA SERVICES BY OR FOR CUSTOMER, MAY BE PERMANENTLY LOST.

7. Term and Termination.

7.1 Order. Order(s) placed hereunder shall be effective as soon as executed and shall continue to be effective, until this Agreement or the relevant Order is terminated or until the relevant Subscription Term for the products and services ordered under the relevant Order expires, whichever is earlier.

7.2 Agreement. This Agreement shall be effective as of the Effective Date and shall remain in effect until terminated in accordance with these terms or until all Orders hereunder expires (the Subscription Term for all the products and services ordered hereunder expires), whichever is earlier.

7.3 Termination. This Agreement (and/or any Order placed under this Agreement) may be terminated by a party: (i) upon thirty (30) days written notice, if the other party materially breaches any provision of this Agreement and such breach remains uncured after such thirty (30) day notice period expires; or (ii) effective immediately, if the other party ceases to do business, or otherwise terminates its business operations without a successor; or (iii) effective immediately, if the other party becomes insolvent or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is filed against it and not dismissed within ninety (90) days.

7.4 Effect of Termination; Survival. Upon any expiration or termination of this Agreement or any Order, Customer shall destroy (or at Impart’ option, return) all copies of software components of the Services in its possession or control or otherwise deployed in connection with the Agreement (and/or the relevant Order), each as relevant. Any term or condition that by its nature is clearly intended to survive the expiration or termination of the Agreement, shall survive any expiration or termination of the Agreement, including Sections 1, 3.3, 7, 8, 9, 10, 11, 12, 13, 14, and 15.

8. Fees; Payment Terms; Updating License Parameters.

8.1 Fees; Payment Terms. Customer will make all payments identified on the Order in accordance with its terms, or if no payment terms are included, then within thirty (30) days of the invoice date. Except as otherwise stated herein, orders are non-cancelable, and all payments are non-refundable, and payments are not subject to any deduction or set-off. Unless otherwise outlined in the Order, the following payment terms shall also apply: (i) Impart invoices shall be paid by Customer within thirty (30) days of the effective date of the relevant Order; (ii) all amounts are payable in U.S. Dollars; (iii) all fees outlined in the Orders are exclusive of all taxes, duties, shipping fees, and similar amounts, all of which are Customer’s responsibility (excluding taxes based on Impart’s income); and (iv) if Customer is in default of making any payment due to Impart, then Impart may, without prejudice to other remedies available, assess a late payment charge, at the lower rate of 1.5% per month, or the maximum rate under applicable law, and/or suspend delivery of any product or service hereunder.‍

8.2 Suspension of Service. If any amount owing by Customer is 30 or more days overdue, Impart may, without limiting any rights and remedies, suspend the provision of Services to Customer until the overdue amounts are paid in full. Impart will give Customer at least 10 days’ prior written notice that its account is overdue, before suspending services to Customer.

8.3 Payment Disputes. Impart will not exercise any rights to suspend Services or impose late charges with respect to an overdue amount for so long as Customer is disputing the overdue amount in good faith. The parties shall cooperate diligently to resolve the dispute.

8.4 Updating License Parameters In connection with the use of or access to the Services, Customer shall not exceed the License Parameters agreed to as part of the Order.  At any time during the Subscription Term, if Customer desires to increase the relevant License Parameters, or if the parties learn that Customer’s actual usage (“Actual Usage”) exceeds the relevant License Parameters paid for by Customer (“Purchased Usage”), then Customer shall notify Impart and pay the incremental fees due for the relevant period of Actual Usage, and after the relevant Order is placed, the relevant License Parameters shall be amended to reflect this change.  The Parties may track Actual Usage and Impart may invoice Customer if it learns of any shortfalls, i.e. that the Actual Usage is above the Purchased Usage.  Unless otherwise mutually agreed in writing, the fees charged to Customer for the additional usage on any subscription will be based on the then current pricing charged to the Customer in the relevant Order (not including any special discounts that are not relevant to overage usage, e.g. one time marketing discounts, etc.) and fees shall be charged for the balance of the term so that the licenses may be coterminous with the existing licenses. 

9. Ownership. The Services are made available by subscription and (where applicable) licensed, and are not sold. As between Customer and Impart, Impart and its licensors shall own and retain all right, title, and (except as expressly licensed hereunder) interest in and to the Services, Impart’s Confidential Information, Network Effect, and all copies or portions thereof, and any derivative works thereof (by whomever created). Customer is not required to provide any feedback or suggestions for improvement to or updates to the Services, however, to the extent provided, all suggestions or feedback relating to the Services provided by Customer (or any Users) to Impart shall be Impart’s property, and Customer hereby assigns the same to Impart.

10. Confidentiality.

10. 1 “CONFIDENTIAL INFORMATION” means any non-public data, information and other materials regarding the products, technology, software, services, or business of a party (and/or, if either party is bound to protect the confidentiality of any third party’s information, of a third party) provided by or made available by one party (“Disclosing Party”), either directly or indirectly through third parties, to the other party (“Receiving Party”) where such information is marked or otherwise communicated as being “proprietary” or “confidential” or the like, or where such information should, by its nature, be reasonably considered to be confidential and/or proprietary. The parties agree that, without limiting the foregoing, the Services (and any performance data, benchmark results, training materials and technical information relating thereto), the Documentation, and Impart pricing information shall be deemed the Confidential Information of Impart, Customer System Data shall be deemed the Confidential Information of the Customer, and the terms and conditions of this Agreement (but not its existence) shall be deemed the Confidential Information of both parties. Notwithstanding the foregoing, Confidential Information shall not include information which: (i) is already known to the Receiving Party prior to disclosure by the Disclosing Party; (ii) becomes publicly available without fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without restriction as to disclosure, or is approved for release by written authorization of the Disclosing Party; or (iv) is independently developed or created by the Receiving Party without use of the Disclosing Party’s Confidential Information.

10.2 Duties. Except as expressly authorized herein, the Receiving Party agrees to: (i) use the Confidential Information of the Disclosing Party only to perform hereunder (including providing thefeatures and services associated with the normal use of the Services) or exercise rights granted to it hereunder; (ii) treat all Confidential Information of the Disclosing Party in the same manner as it treats its own similar proprietary information, but in no case will the degree of care be less than reasonable care; and (iii) disclose the Disclosing Party’s Confidential Information only to its Affiliates, and those employees, agents and contractors of the Receiving Party and those of its Affiliates who have a need to know such information for the purposes of this Agreement, provided that any such employee, agent or contractor shall be subject to obligations of non-use and confidentiality with respect to such Confidential Information at least as restrictive as the terms of this Agreement, and the Receiving Party shall remain liable for any non-compliance of such Affiliates, and its or their employees, agents or contractors with the terms of this Agreement.

10.3 Disclosures Required by Law.  Either party may disclose Confidential Information of the other party if it is required to be disclosed by law or governmental regulation, provided that the Receiving Party provides reasonable notice to Disclosing Party of such required disclosure (to the extent permitted by law) and reasonably cooperates with the Disclosing Party in limiting such disclosure and ensuring confidential handling of the Confidential Information.

11. Warranties.

11.1 Services Warranty.  During the term of each Order, Impart warrants that (a) the Services will perform materially as set forth in the Documentation; (b) the features, functionality and performance of the Services will not be materially decreased; (c) the overall effectiveness of the ISMP will not be decreased; (d) use of the Services, including the software components, in accordance with the Documentation, will not impose any additional obligations on Customer to grant any rights to its intellectual property or to disclose or make any of its own proprietary technology available to any third party; and (e) Customer’s obligations will not be materially increased as a result of an update to the Documentation. Customer’s sole and exclusive remedy and the entire liability of Impart and its suppliers and licensors under this limited warranty will be, at Impart’ option, repair or replacement of the Services, or if repair or replacement is not possible, to terminate the license and refund the license fee paid by Customer for the affected Services, provided Customer removes all copies of relevant software components of the Services from its systems and ceases any further use of the Services.

11.2 Support and Assistance Warranty.  Impart represents and warrants that any Support and Maintenance provided and any Technical/Training Assistance purchased under an Order will be performed in a professional and workmanlike manner, in accordance with generally accepted industry standards.  Impart’ entire liability and Customer’s sole and exclusive remedy for any breach of the preceding warranty will be for Impart to re-perform the nonconforming Support and Maintenance or Technical/Training Assistance, or if Impart is unable to deliver conforming Support and Maintenance or Technical/Training Assistance within a reasonable time, then refund any fees paid to Impart for the relevant non-conforming Support and Maintenance or Technical/Training Assistance (if any).  

11.3 DISCLAIMERS.  EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES, SUPPORT AND MAINTENANCE, TECHNICAL/TRAINING ASSISTANCE AND ANY OTHER DELIVERABLES AND/OR SERVICES (AND/OR RESULTS THEREOF) PROVIDED BY IMPART HEREUNDER ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND AND, EXCEPT AS EXPRESSLY SET FORTH HEREIN, IMPART DISCLAIMS ALL EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT WITH RESPECT TO THE SAME. WITHOUT LIMITING THE FOREGOING, IMPART DOES NOT WARRANT OR GUARANTEE THAT ANY OR ALL SECURITY ATTACKS WILL BE DISCOVERED, REPORTED OR REMEDIED, OR THAT THERE WILL NOT BE ANY SECURITY BREACHES TO CUSTOMER’S SERVERS, SYSTEMS AND/OR TECHNOLOGY BY THIRD PARTIES.   

12. Indemnity.  

12.1 Impart Indemnity. Impart will indemnify and defend Customer, Users, and their respective officers, directors and employees (“Customer Indemnitee(s)”) from any and all costs, expenses, losses, damages, and settlement amounts required to settle, any third party claim, suit, or proceeding (each a “Claim”) brought against Customer Indemnitees that the Services or use of the Services by Customer infringes or misappropriates the third party’s intellectual property rights.  If such a Claim occurs, or in Impart’ opinion is reasonably likely to occur, Impart, at its expense and at its sole discretion, may, in addition to its indemnification obligations hereunder: (i) procure the right to allow Customer to continue to use the Services, or (ii) modify or replace the Services or infringing portions thereof to become non-infringing, or (iii) if neither (i) nor (ii) is commercially feasible, terminate Customer’s right to use the affected portion of the Services and refund any license fees paid by Customer corresponding to such Services, pro-rated over the remainder of the relevant Subscription Term.  Notwithstanding the foregoing, Impart shall have no obligations under this Section to the extent any Claim is based upon or arises out of: (aa) any modification or alteration to the Services not made by Impart or its contractors or at their direction; (bb) any combination or use of the Services with third party products or services not provided by Impart, including Non-Impart Services if the Services or their use would not infringe third-party rights absent such combination; (cc) Customer’s continuance of allegedly infringing activity a reasonable period after being notified thereof; (dd) Customer’s failure to use Upgrades made available by Impart; (ee) use of the Services not in accordance with the applicable Documentation or in breach of this Agreement; and/or (ff) Third Party Open Source.  The remedies set forth in this Section constitute Customer’s sole and exclusive remedies, and Impart’ entire liability, with respect to infringement or violation of third-party intellectual property rights.  

12.2 Customer Indemnity.  Subject to the terms of this section, Customer shall defend, and indemnify and hold harmless Impart and its respective officers, directors and employees (“Impart Indemnitee(s)”) from any and all costs, expenses, losses, damages, and settlement amounts required to settle, any Claims brought against Impart Indemnitees that Customer System Data violates any third party proprietary, property or personal rights.  Notwithstanding the foregoing, Customer shall have no obligations under this Section to the extent any Claim is based upon or arises out of Impart’s breach of this Agreement.  The remedies set forth in this Section constitute Impart’s sole and exclusive remedies, and Customer’s entire liability, with respect to infringement or violation of third-party intellectual property rights.

12.3 Indemnification Process.  Each indemnifying party’s indemnification obligations are subject to the indemnified party (i) promptly notifying the indemnifying party in writing of the Claim subject to indemnification hereunder, (ii) giving the indemnifying party the sole right to control and direct the investigation, preparation, defense and settlement of such Claim (except that the indemnifying party may not settle any Claim unless it unconditionally releases the indemnified of all liability related to such Claim), and (iii) giving reasonable assistance and cooperation for the defense of same, at the indemnifying party’s reasonable expense.

13. Limitation of Liability.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR ANY LIABILITY ARISING OUT OF ANY VIOLATION OF A PARTY’S PROPRIETARY RIGHTS (INCLUDING A VIOLATION OF ANY LICENSE OR RESTRICTIONS STATED IN SECTION 2.4 OR 3), ANY VIOLATION OF SECTION 10 (CONFIDENTIALITY), OR ANY LIABILITY OF A PARTY ARISING OUT OF ITS OBLIGATIONS UNDER SECTION 12 (INDEMNITY), IN NO EVENT SHALL THE AGGREGATE LIABILITY OF CUSTOMER, IMPART, IMPART’S LICENSORS OR SUPPLIERS ARISING OUT OF OR RELATED TO THIS AGREEMENT, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, UNDER STATUTE, TORT OR OTHERWISE, EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE, WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE.  MULTIPLE CLAIMS SHALL NOT EXPAND THE LIMITATIONS SET FORTH IN THIS SECTION.

14. Exclusion of Consequential and Related Damages.  IN NO EVENT SHALL CUSTOMER, IMPART, OR IMPART’S LICENSORS OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, CONSEQUENTIAL, INCIDENTAL DAMAGES, OR FOR ANY LOST REVENUE, LOST PROFIT, LOSS OF BUSINESS, LOSS OF CONTRACTS, ANTICIPATED SAVINGS, LOSS OF GOODWILL, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR ANY LOSS OR DAMAGE TO DATA, OR ANY BUSINESS INTERRUPTION ARISING OUT OF OR RELATED TO THIS AGREEMENT, UNDER ANY CAUSE OF ACTION, WHETHER IN CONTRACT, UNDER STATUTE, TORT OR OTHERWISE, EVEN IF ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH.  THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW. 

15. General.

15.1 Language.  This Agreement, any disputes hereunder, and all services to be provided hereunder by Impart to Customer (if any) shall be conducted and provided in the English language.

15.2 Open Source. Notwithstanding anything else herein, to the extent any components of the Services delivered to Customer for use on Customer owned or operated systems  embeds or is delivered together with any third party open source libraries/components/applications/user interface/utilities (collectively referred to as “Third Party Open Source”) and to the extent required by the relevant licensor, such Third Party Open Source shall be subject to the relevant Third Party Open Source proprietary notices, disclaimers, requirements and/or extended rights which are relevant to the relevant Third Party Open Source and identified to the User via the Services (or otherwise). Notwithstanding anything else herein, Third Party Open Source shall not be deemed part of the Services hereunder.  Impart represents that Services delivered hereunder shall not be delivered together with any Third Party Open Source that is subject to terms which creates, or purports to create, an obligation that Customer grant to any third party any rights to, or immunities under, any of its intellectual property rights, or that Customer disclose or make any of its own proprietary source code (or any part or derivative work thereof) available to third parties under any circumstances.

15.3 Export Law Assurances.  The Services and the Documentation may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Customer shall not enable use of the Services in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan, or Syria) or in violation of any U.S. export law or regulation.  

15.4 U.S. Government End User Purchasers.  The Services may include access to software. In such case, such software is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if Customer is an agency of, or contractor to, the US Government, it receives only those rights with respect to such software as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors. If Customer is a government agency that has a need for rights not granted under the Agreement, it must negotiate with Impart to determine if there are acceptable terms for granting those rights, and mutually acceptable written terms specifically granting those rights must be included in any applicable agreement.  

15.5 Anti-Bribery or Anti-Corruption Laws.  In carrying out activities pursuant to this Agreement, each party agrees that it shall comply with and shall not commit, authorize, or permit any action by its personnel which would violate any anti-bribery or anti-corruption laws, such as the United States Foreign Corrupt Practices Act or the UK Bribery Act or any similar relevant law or regulation.

15.6 Choice of Law; Venue.  This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without reference to or application of choice of law rules or principles. The sole and exclusive jurisdiction and venue for actions arising under this Agreement shall be the State and Federal courts in Delaware; Customer and Impart hereby agree to service of process in accordance with the rules of such courts. Notwithstanding any choice of law provision or otherwise, the Uniform Computer Information Transactions Act (UCITA) and the United Nations Convention on the International Sale of Goods shall not apply.

15.7 Headings.  Headings and captions are for convenience only and are not to be used in the interpretation of this Agreement.

15.8 Counterparts.  This Agreement may be executed and delivered in one or more counterparts (including facsimile, PDF or other electronic counterparts), with the same effect as if the parties had signed the same document.  Each counterpart so executed shall be deemed to be an original, and all such counterparts shall be construed together and shall constitute one agreement.

15.9 Entire Agreement; Modifications; Conflicts. This Agreement supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. In the event of any conflict or inconsistency among the following, the order of precedence shall be: (i) the Data Processing Agreement, (ii) the applicable Order (other than a Marketplace/Reseller Order), (iii) the Agreement, and (iv) the Documentation.  This Agreement prevails over any pre-printed terms or other conflicting or additional terms of any Customer online supplier portal click-through, purchase order or other Customer ordering document, even if signed and returned.  Additionally, with respect to any Services provided hereunder, this Agreement supersedes and cancels any “click wrap” or “click accept” or any web-based agreement incorporated into such Services or accepted by a User in connection with access to the Services.  Except as expressly provided herein, this Agreement may be amended, or any term or condition set forth herein waived, only by a writing executed by both parties, which identifies the terms being amended.  

15.10 Illegality.  Should any term of this Agreement be declared invalid, void or unenforceable by any court of competent jurisdiction, that provision shall be modified, limited or eliminated to the minimum extent necessary to effectuate the original intent and such declaration shall have no effect on the remaining terms hereof, which shall continue in full force and effect. 

15.11 Waiver.  The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.

15.12 Assignment.  This Agreement may not be assigned or transferred without the other party’s prior written consent, provided each party expressly reserves the right to assign this Agreement (a) to its Affiliate or (b) in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.  Any action or conduct in violation of the foregoing shall be void and without effect. Impart may delegate any of its obligations hereunder, provided it shall remain fully liable and responsible for its delegates’ actions or inactions in violation of this Agreement.  All validly assigned rights and obligations of the parties hereunder shall be binding upon and inure to the benefit of and be enforceable by and against the successors and permitted assigns.

15.13 Notice.  All notices, permissions and approvals shall be in writing and shall be deemed to have been given upon (a) personal delivery; (b) the second business day after mailing; or (c) the first business day after sending by email (provided email shall not be sufficient for notices of an indemnifiable claim).  

15.14 Equitable Relief.  The parties agree that a material breach of this Agreement adversely affecting Impart’ or its licensors’ intellectual property rights in the Services, or the Confidential Information of either party may cause irreparable injury to such party for which monetary damages would not be an adequate remedy and the non-breaching party shall be entitled to equitable relief (without a requirement to post a bond) in addition to any remedies it may have hereunder or at law.  

15.15 Independent Contractors.  The parties are independent contractors for all purposes under this Agreement, and neither party shall be deemed an employee, partner, or agent of the other.  Each party shall be solely responsible for any and all obligations and payments due with respect to their personnel, including any wages, salaries and amount due or payable to its personnel in connection with this Agreement.  This Agreement shall not establish any relationship of partnership, joint venture, employment, franchise or agency between the parties.

15.16 Force majeure. Except as expressly provided in this Agreement, neither party will be liable for any delay in performance due to act of God, nature or a public enemy, earthquake, flood, fire, government order, riot, civil disobedience, epidemic or pandemic, labor strife, or any other cause beyond causes beyond its reasonable control and without its fault or negligence, including, by way of example and not limitation, interruption of electricity, communication or transportation (a “Force Majeure Condition”).  However, the party whose performance is delayed by such Force Majeure Condition will use its best efforts to notify the other party of such delay and to minimize its effect.

15.17 Press.  Impart’ may include Customer’s name and logo: (i) on Impart’ website and in its marketing materials, identifying Customer as a user of the Services and (ii) in a press release favorably publicizing Customer’s selection of the Services.

15.18 Marketplace/Reseller.  If Customer has validly purchased Services through a marketplace or reseller authorized by Impart (“Marketplace/Reseller”) under an ordering document that binds Customer to the terms of this Agreement (a “Marketplace/Reseller Order”), then Impart will make the validly purchased Services specified in the Marketplace/Reseller Order available to Customer. Impart may share information regarding Customer with the Marketplace/Reseller when necessary for providing the Services or as needed for the Marketplace/Reseller to perform services for the benefit of Customer. A Marketplace/Reseller Order shall be an Order for purposes of this Agreement, provided that, (a) Section 8.1 of this Agreement shall not apply; (b) Impart will seek payment for all fees associated with Customer’s use of the Services from the Marketplace/Reseller, (c) any refunds or credits will be issued to the Marketplace/Reseller; (d) if any amount owing by a Marketplace/Reseller for Customer’s use of the Services is overdue, Impart may, without limiting any rights and remedies, suspend the provision of Services to Customer until the overdue amounts are paid in full; (e) amounts paid by Customer to the Marketplace/Reseller for Services subscribed for by Customer shall be deemed to be payments made by Customer hereunder for purposes of Section 13 (Limitation of Liability); and (f) a Marketplace/Reseller Order cannot modify or take precedence over the Data Processing Agreement, the Agreement, or the Documentation.

15.19 Basis of the Bargain.  Customer acknowledges and agrees that Impart has set its prices and entered into this Agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, 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.

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