Terms

1. In this Agreement, references to “Client,” “you,” or “your” mean the entity who has accepted a Tenant Request, proposal, service order, statement of work, or similar document (electronic or otherwise) from PORT1. (In this Agreement we refer collectively to these type of documents as a “Tenant Request,” although the actual title or caption of the service-related documents might vary.) If we have an ongoing business relationship with you, then “Tenant Request” will also include any confirmatory communications, such as those sent by us to you by email or text, in which we describe or summarize services or products that we are providing or facilitating for you, or products or services that you have ordered or purchased from us.
    
   1. This document contains an arbitration provision that requires, under most circumstances, disputes to be settled by arbitration and not by a judge or jury. Please read the “Arbitration” section of this Agreement carefully. This document also contains important provisions regarding your payment obligations, automatic renewal of ongoing services, limitations of liability, and other significant matters; please read this document and consider those issues carefully before accepting a Tenant Request.
      
      
   2. This document limits or, in some cases, eliminates the liability of PORT1 for services that it does not provide directly to you and/or which are provided to you by third parties (defined as “Third Party Services” and “Third Party Providers,” below). Please read this document and consider such limitations carefully before accepting a Tenant Request.
      
      
2. Applicability. The scope of our services will be as described in a Tenant Request and/or as requested by you, whether in writing or not, from time to time (collectively, “Services”). All other services, projects, and related matters are out-of-scope and will not be provided to you unless we expressly agree to do so (collectively, “Out of Scope Services”). Please read both the Tenant Request and this Agreement before accepting the Tenant Request. If you have any questions about either of those documents or this Agreement, please do not sign the Tenant Request and, instead, contact us for more information.
   
   
3. Each Tenant Request will be governed under the version of this Agreement in place on the date that you accept the Tenant Request. We may change this Agreement from time to time, and modified versions of this Agreement will apply to Tenant Requests that you accept after the date of such modifications. You can determine the version of this Agreement by noting the “last updated” date indicated at the bottom of this document. We advise you to keep a copy of this document and keep track of the date indicated below when you accept a Tenant Request.
   
   
4. The provisions of a Tenant Request govern over conflicting or materially different terms contained in this Agreement, which allows us to craft solutions to meet your needs by making applicable changes in the Tenant Request.
   
   
5. Third Party Providers/Services. Some services may be provided to you directly by our personnel, such as situations in which our personnel install software agents on managed devices or physically install software at your premises. These services are distinguishable from services or licenses that are provided to you or us by third party providers, who are often referred to in the industry as “upstream providers.” (In this Agreement, we call upstream providers “Third Party Providers” and the services that Third Party Providers provide are called “Third Party Services”).We are resellers and/or facilitators of the Third Party Services and do not provide those services to you directly. For this reason, we are not and cannot be responsible for any defect, act, omission, or failure of any Third Party Service or any failure of any Third Party Provider. Third Party Services are provided on an “as is” basis only. If an issue requiring remediation arises with a Third Party Service, then we will endeavor to provide a reasonable workaround or, if available, a “temporary fix” for the situation; however, we do not warrant or guarantee that any particular workaround or fix will be available or achieve any particular result, or that Third Party Services will run in an uninterrupted or error-free manner.

IMPLEMENTATION

1. Prioritization. All Services will be implemented and/or facilitated (as applicable) in a scheduled and prioritized manner as we determine reasonable and necessary. Exact commencement or start dates may vary or deviate from the dates we state to you depending on the Services being provided and the extent to which prerequisites (if any), such as transition or onboarding activities, must be completed.
   
   
2. Third Party Support
   In some cases, the resolution of an issue may require the involvement of a third-party vendor or the purchase of additional products or services, which may result in additional costs to the Customer ("Third-Party Costs"). Should such third-party involvement or purchases be required, we will provide a written estimate of the anticipated costs for Customer’s approval prior to proceeding.
   
   No third-party work or purchases incurring additional costs will be initiated without the Customer’s prior written consent. We do not warrant or guarantee that the involvement of a third party or the payment of Third-Party Costs will resolve any specific issue, and such efforts may be necessary to help identify, narrow, or eliminate potential problems.
   
   
3. Authorized Contact(s). We will be entitled to rely on any directions or consent provided by your personnel or representatives who you designate to provide such directions or consent (“Authorized Contacts”). If no Authorized Contact is identified in an applicable Tenant Request or if a previously identified Authorized Contact is no longer available to us, then your Authorized Contact will be the person (i) who accepted the Tenant Request, and/or (ii) who is generally designated by you during our relationship to provide us with direction or guidance. We will be entitled to rely upon directions and guidance from your Authorized Contact until we are affirmatively made aware of a change of status of the Authorized Contact. If your change is provided to us in writing (physical document or by email), then the change will be implemented within two (2) business days after the first business day on which we receive your change notice. If your change notice is provided to us in person or by telephone (live calls only), the change will be implemented on the same business day on which the conversation takes place. Do not use a ticketing system or help desk request to notify us about the change of an Authorized Contact; similarly, do not leave a recorded message informing us of a change to your Authorized Contact. We reserve the right but not the obligation to delay the Services until we can confirm the Authorized Contact’s authority within your organization.
   
   
4. Access. You hereby grant to us and our designated Third Party Providers the right to monitor, diagnose, manipulate, communicate with, retrieve information from, and otherwise access the Environment solely as necessary to enable us or those providers, as applicable, to provide or facilitate the Services. With respect to Client customer environments, this access will only occur at the explicit direction of an Authorized Contact from Client. It is your responsibility to secure, at your own cost and prior to the commencement of any Services, any necessary rights of entry, licenses (including software licenses), permits or other permissions necessary for PORT1 or applicable Third Party Providers to provide or facilitate the Services to you. PORT1 shall not be required to engage in any activity or provide or facilitate any Services under conditions that pose or may pose a safety or health concern to any personnel, or that would require extraordinary or non-industry standard efforts to achieve.
   
   
5. Ongoing Requirements. Everything in the Environment must be genuine and licensed, including all hardware, software, etc. If we ask for proof of authenticity and/or licensing, you must provide us with such proof. If we require certain minimum hardware or software requirements (“Minimum Requirements”), you agree to implement and maintain those Minimum Requirements as an ongoing requirement of us providing the Services to you.
   
   
6. Response. Our response to issues relating to the Services will be handled in accordance with the provisions of the Tenant Request. In no event will we be responsible for delays in our response or our provision of Services during (i) those periods of time covered under the Transition Exception (defined below), or (ii) periods of delay caused by Scheduled Down Time, Client-Side Downtime, Vendor-Side Downtime (all defined below). or (iii) periods in which we are required to suspend the Services to protect the security or integrity of the Environment or our equipment or network, or (iv) delays caused by a force majeure event.
    
7. Client-Side Downtime. We will not be responsible under any circumstances for any delays or deficiencies in the provision of, or access to, the Services to the extent that such delays or deficiencies are caused by your actions or omissions, or by your Co-Managed Provider’s acts or omissions (“Client-Side Downtime”). Client-Side Downtime includes, but is not limited to, any period during which we require your participation, or we require information, directions, or authorization from you but cannot reach your Authorized Contact(s).
    
8. Vendor-Side Downtime. We will not be responsible under any circumstances for any delays or deficiencies in the provision of, or access to, the Services or any expenses or costs to the extent that such delays, deficiencies, costs, or expenses are caused by Third Party Providers, third party licensors, or “upstream” service or product vendors.
   
   
9. Transition Exception. You acknowledge and agree that for the first forty-five (45) days following the commencement date of any Service, as well as the entirety of any period during which we are performing off-boarding-related services (e.g., assisting you in the transition of the Services to another provider, terminating a service, etc.), any response time commitments previously provided to you will not apply to us, and it is understood that there may be unanticipated downtime or delays related to those activities (the “Transition Exception”).

FEES; PAYMENT

1. Fees. You agree to pay the fees, costs, and expenses charged by us for the Services in accordance with the amounts, methods, restrictions, and schedules described in each Tenant Request (“Fees”). You are responsible for all freight, insurance, and taxes (including but not limited to import or export duties, sales, use, value add, and excise taxes). If you qualify for a tax exemption, you must provide us with a valid certificate of exemption or other appropriate proof of exemption.
   
   
2. Reconciliation. Where Fees are billed to you based on your usage of a product, service, or software, your usage will be monitored and calculated on a daily basis and billed to you at or near the end of the calendar month in which such Fees accrued. Payment for Fees will be debited from your designated payment accounts five (5) days after the applicable invoice is delivered to you.
   
   
3. Payment Methods. Unless we agree otherwise, payment must be made by credit card or ACH. Failure to provide us with proper credit card and/or ACH information could result in a suspension of Services without prior notification not you. When enrolled in an ACH payment processing method, you authorize us to electronically debit your designated checking or savings account for any payments due under the Tenant Request. This authorization will continue until otherwise terminated in writing by you. We will apply a $20.00 service charge (or the maximum amount permitted by law, whichever is less) to your account for any electronic debit that is returned unpaid due to insufficient funds or due to your bank’s electronic draft restrictions.
   
   
4. Nonpayment. Fees that remain unpaid for more than thirty (30) days when due will be subject to interest on the unpaid amount(s) from the due date until and including the date payment is received, at the lower of either 1.5% per month or the maximum allowable rate of interest permitted by applicable law. We reserve the right, but not the obligation, to suspend part or all the Services without prior notice to you if any portion of undisputed fees are not timely paid. Monthly or recurring charges (if applicable) will continue to accrue during any period of suspension. Notice of disputes related to Fees must be received by us within sixty (60) days after the date on which an applicable invoice is delivered to you, otherwise you waive your right to dispute the Fee thereafter. We reserve the right to charge a reasonable reconnect fee (of no more than 10% of your monthly recurring fees or the actual amounts that Third Party Providers charge to reconnect the services, whichever is greater) if we suspend the Services due to your nonpayment.
   
   
5. Increases. We reserve the right to increase our monthly recurring fees by reflecting the increase on your monthly invoices; provided, however, if a single increase in a calendar year or all such increases, in the aggregate, in a calendar year is/are more than five percent (5%) of the fees charged for the same Services in the prior calendar year, then you will be provided with a sixty (60) day opportunity to terminate the Services by providing us with written notice of termination (“Termination Option Period”). If you timely terminate the Services during the Termination Option Period, you will be responsible for the payment of all fees that accrue up to the termination date and all pre-approved, non-mitigatable expenses that we incurred in our provision of the Services through the date of termination (such as “per seat licensing costs”, as discussed below). Your continued acceptance or use of the Services after the Termination Option Period will indicate your acceptance of the increased fees. Pass Through Increases (described below), as well as any fee increases due to the addition of managed devices, users, or Environment modification(s) are independent of any increases to our monthly recurring fees and will not be included in the five percent calculation described in this paragraph.
   
   
6. Pass Through Increases. We reserve the right to pass through to you any incremental increases in the costs and/or fees that we incur on your behalf or which are required to maintain any Service-related Third Party Services or third party licenses (“Pass Through Increases”). Since we do not control these fees or costs, we cannot predict whether such price increases will occur. Should they occur, we will endeavor to provide you with as much advance notice as reasonably possible.

LIMITED WARRANTIES; LIMITATIONS OF LIABILITY

This section limits the liabilities arising from the Services and is a bargained-for and material part of our business relationship with you. You acknowledge and agree that PORT1 would not provide any Services, or enter into any Tenant Request or this Agreement, unless PORT1 could rely on the limitations described in this paragraph. In no event will either party be liable for any indirect, special, exemplary, consequential, or punitive damages, such as lost revenue, loss of profits (except for fees due and owing to PORT1), savings, or other indirect or contingent event-based economic loss arising out of or in connection with the Services, this Agreement, any Tenant Request, or for any breach hereof or for any damages caused by any delay in furnishing Services under this Agreement or any Tenant Request, even if a party has been advised of the possibility of such damages; however, amounts you owe us under this Agreement, reasonable attorneys’ fees awarded to a prevailing party (as described below), your indemnification obligations, and any amounts due and payable pursuant to the non-solicitation provision of this Agreement shall not be limited by the foregoing limitation. Except for the foregoing exceptions, a responsible party’s (“Responsible Party’s”) aggregate liability to the other party (“Aggrieved Party”) for damages from any and all claims or causes whatsoever, and regardless of the form of any such action(s), that arise from or relate to this Agreement (collectively, “Claims”), whether in contract, tort, indemnification, or negligence, shall be limited solely to the amount of the Aggrieved Party’s actual and direct damages, not to exceed (i) the amount of fees paid by you (excluding hard costs for licenses, hardware, etc.) to PORT1 for the specific Service upon which the applicable claim(s) is/are based during the six (6) month period immediately prior to the date on which the cause of action accrued, or (ii) up to $10,000, or (iii) the amounts that are actually paid out under a Responsible Party’s insurance policy, whichever is greater. The parties agree that only one of the foregoing financial remedies may be selected by an Aggrieved Party and once selected, the selected remedy shall be the sole financial remedy available to the Aggrieved Party to the exclusion of all other remedies. The foregoing limitations shall apply even if the remedies listed in this Agreement fail of their essential purpose; however, the limitations shall not apply to the extent that such limitations are prohibited under applicable law, or to the extent that the Claims are caused by a Responsible Party’s willful or intentional misconduct, or gross negligence. Similarly, a Responsible Party’s liability obligation shall be reduced to the extent that a Claim is caused by, or the result of, the Aggrieved Party’s willful or intentional misconduct, gross negligence, or to the extent that the Aggrieved Party failed to reasonably mitigate (or attempt to mitigate, as applicable) the Claims. Under no circumstances shall PORT1 have any liability for any claims or causes of action arising from or related to Out of Scope Services.

INDEMNIFICATION

You agree to indemnify us and hold us harmless from and against all fees, costs, and expenses (including, without limitation, reasonable attorneys’ fees, expert witness costs, and discovery-related costs) that we incur as a result of (i) your failure to comply with any applicable law, rule, or regulation, or (ii) your failure to follow our service-related or license-related instructions, or (iii) being required to participate as a witness or a party in any legal action, arbitration, or mediation arising from your business disputes, internal or otherwise, or (iv) any third party audits necessitated by your acts, omissions, or business-related needs. In addition, each party (an “Indemnifying Party”) agrees to indemnify, defend, and hold the other party (an “Indemnified Party”) harmless from and against all losses, damages, costs, expenses, or liabilities, including reasonable attorneys’ fees, (collectively, “Damages”) that arise from, or are related to, the Indemnifying Party’s breach of this Agreement. The Indemnified Party will have the right, but not the obligation, to control the intake, defense and disposition of any claim or cause of action for which indemnity may be sought under this section. The Indemnifying Party shall be permitted to have counsel of its choosing participate in the defense of the applicable claim(s); however, (i) such counsel shall be retained at the Indemnifying Party’s sole cost, and (ii) the Indemnified Party’s counsel shall be the ultimate determiner of the strategy and defense of the claim(s) for which indemnity is provided. No claim for which indemnity is sought by an Indemnified Party will be settled without the Indemnifying Party’s prior written consent, which shall not be unreasonably delayed or withheld.

TERM; TERMINATION

Please note: This section contains important provisions relating to the automatic renewal of managed services; please review this section, as well as the terms of your Tenant Request, carefully. There are several dates of which you should be aware, including the effective/termination dates of this Agreement and the effective/termination dates of Services under a Tenant Request. Each Tenant Request will have its own term and will be terminated only as provided in this Agreement or as provided in the Tenant Request.

1. This Agreement. This Agreement applies to all Services and is effective as of the date on which we provide or facilitate a Service to you or on the date on which you accept a Tenant Request, whichever is earlier (“Effective Date”). This Agreement will terminate automatically (i) if you or we terminate this Agreement For Cause (described below) or (ii) immediately after all Services under a Tenant Request have been fulfilled, subject to any auto-renewal provisions contained within the Tenant Request. Upon the termination of this Agreement or Services under a Tenant Request, all Services will immediately and permanently cease; however, the termination of this Agreement or Services under a Tenant Request shall not change or eliminate any fees that accrued and/or were payable to us prior to the date of termination, all of which shall be paid by you. Please note, this Agreement shall not be terminated by either party without cause if Services are in progress under a Tenant Request.
   
   
2. The term of the Services will be as indicated in the applicable Tenant Request. The termination of Services under one Tenant Request shall not, by itself, cause the termination of (or otherwise impact) this Agreement or the status or progress of any other Services between the parties. Please note, unless otherwise expressly stated in the Tenant Request, the Services in each Tenant Request automatically renew (please see “Auto-Renewal” section below). Moreover, regardless of the reason for termination, you agree to pay all Access Licensing-related fees as described in the Miscellaneous section, below.
   
   
3. Termination Without Cause. Unless otherwise indicated in the Tenant Request or otherwise permitted under this Agreement, no party will terminate this Agreement without cause if, on the date of termination, Services are in progress. In addition, no party will terminate a Tenant Request without cause prior to the Tenant Request’s natural (e., specified) expiration or termination date. (By way of example: If a Tenant Request provides for an annual service, then the Services under that Tenant Request cannot be terminated without cause prior to the expiration of one year). If you terminate the Services under a Tenant Request without cause and without PORT1’s consent, then you agree to be responsible for paying the termination fee described in the “Termination for Cause” section, below.
   
   
4. Termination For Cause. In the event that one party (a “Defaulting Party”) commits a material breach under a Tenant Request or under this Agreement, the non-Defaulting Party will have the right, but not the obligation, to terminate immediately the Services under the relevant Tenant Request (a “For Cause” termination) provided that (i) the non-Defaulting Party has notified the Defaulting Party of the specific details of the breach in writing, and (ii) the Defaulting Party has not cured the default within twenty (20) days (ten (10) days for non-payment by Client) following receipt of written notice of breach from the non-Defaulting Party. If PORT1 terminates this Agreement or any Tenant Request For Cause, or if you terminate any Services under a Tenant Request without cause prior to such Tenant Request’s expiration date, then PORT1 shall be entitled to receive, and you hereby agree to pay to us, all amounts that would have been paid to PORT1 had this Agreement or Tenant Request (as applicable) remained in full effect, calculated using the fees and costs in effect as of the date of termination (“Termination Fee”). If you terminate this Agreement or a Tenant Request For Cause, then you will be responsible for paying only for those Services that were delivered properly and accepted by you up to the effective date of termination, as well as per-seat licensing fees (described below), and nothing more.
   
   
5. Client Activity as a Basis for Termination. If you or any of your staff, personnel, contractors, or representatives engages in any unacceptable act or behavior that renders it impracticable, imprudent, or unreasonable to provide or facilitate the Services to you and the activity does not cease after we provide notice of the issue(s) to you, then in addition to PORT1’s other rights under this Agreement, PORT1 will have the right upon providing you with ten (10) days prior written notice, to terminate this Agreement or the applicable Tenant Request For Cause.
   
   
6. Consent. You and we may mutually consent, in writing, to terminate a Tenant Request or this Agreement at any time.
   
   
7. Auto-Renewal. Unless otherwise expressly stated in the Tenant Request, the term of any managed Service that is provided to you on an ongoing and recurring basis and which is invoiced monthly (a “Managed Service”) will, unless terminated earlier as per this Agreement, automatically renew for contiguous terms equal to the initial term of the Managed Service unless either party notifies the other of its intention to not renew the Managed Service in writing (email is sufficient for this purpose) no less than thirty (30) days before the end of the then-current Managed Service term. For the purposes of clarity, the term of non-Managed Services (such as one-time projects, break/fix assignments, temporary, non-recurring services, etc.) is not subject to auto-renewal.

CONFIDENTIALITY

1. Defined. Confidential Information means all non-public information provided by one party (“Discloser”) to the other party (“Recipient”), including but not limited to customer-related data, customer lists, internal documents, internal communications, proprietary reports and methodologies, and related information. Confidential Information will not include information that: (i) has become part of the public domain through no act or omission of the Recipient, (ii) was developed independently by the Recipient, or (iii) is or was lawfully and independently provided to the Recipient prior to disclosure by the Discloser, from a third party who is not and was not subject to an obligation of confidentiality or otherwise prohibited from transmitting such information.
   
   
2. Use. The Recipient will keep the Confidential Information it receives fully confidential and will not use or disclose such information to any third party for any purpose except (i) as expressly authorized by the Discloser in writing, or (ii) as needed to fulfill its obligations under this Agreement, or (iii) as required by any law, rule, or industry-related regulation.
   
   
3. Due Care. The Recipient will exercise the same degree of care with respect to the Confidential Information it receives from the Discloser as it normally takes to safeguard and preserve its own confidential and proprietary information, which in all cases will be at least a commercially reasonable level of care.
   
   
4. Compelled Disclosure. If a Recipient is legally compelled (whether by deposition, interrogatory, request for documents, subpoena, civil investigation, demand or similar process) to disclose any of the Confidential Information, and provided that it is not prohibited by law from doing so, that Recipient will immediately notify the Discloser in writing of such requirement so that the Discloser may seek a protective order or other appropriate remedy and/or waive the Recipient’s compliance with the provisions of this Section. Failing the entry of a protective order or the receipt of a waiver hereunder, the Recipient may disclose, without liability hereunder, that portion (and only that portion) of the Confidential Information that the Recipient has been advised, by written opinion from its counsel (which shall be shared with the Discloser), that the Recipient is legally compelled to disclose. To the extent that we are required to expend our resources to comply with a legal requirement concerning your information (such as a response to a subpoena or court order), then you agree to pay our then-current hourly rates for all time we expend in that process, as well as all non-mitigatable hard costs we incur in complying with our legal requirements.
   
   
5. Additional NDA. In our provision of the Services, you and we may be required to enter into one or more additional nondisclosure agreements (each an “NDA”) for the protection of a third party’s Confidential Information. In that event, the terms of the NDA will be read in conjunction with the terms of the confidentiality provisions of this Agreement, and the terms that protect confidentiality most stringently shall govern the use and destruction of the relevant Confidential Information. If in the normal provision of the Services we are in receipt of or otherwise have access to personal health information (as defined in the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), we will be your business associate as that term is defined under HIPAA and will enter into a mutually agreeable Business Associate Agreement.

OWNERSHIP

Each party is, and will remain, the owner and/or licensor of all works of authorship, patents, trademarks, copyrights, and other intellectual property owned by such party (“Intellectual Property”), and nothing in this Agreement or any Tenant Request conveys or grants any ownership rights or goodwill in one party’s Intellectual Property to the other party. For the purposes of clarity, you understand and agree that we own any software, codes, algorithms, or other works of authorship that we create while providing the Services to you. If we provide licenses to you for third party software, then you understand and agree that such software is licensed, and not sold, to you, and your use of that software is subject to the terms and conditions of (i) this Agreement, (ii) the applicable Tenant Request, (iii) written directions supplied to you by us, and (iv) any applicable End User Agreement (defined below); no other uses of such third party software are permitted. To the maximum extent permitted by applicable law, we make no warranty or representation, either expressed or implied, with respect to third party software or its quality, performance, merchantability, or fitness for a particular purpose.

ARBITRATION

Except for collections actions to recover fees due to us (“Collections”) or any amounts that qualify for small claims court jurisdiction in our local jurisdiction, all disputes, claims, or controversies arising from or related to this Agreement, including the determination of the scope or applicability of this agreement to arbitrate, shall be settled by arbitration before one arbitrator who is mutually agreed upon by the parties. There is no jury involved in arbitration, and by agreeing to arbitrate you are agreeing to waive any right you may have to a trial by a jury. The arbitration shall be administered and conducted by the American Arbitration Association (the “AAA”) pursuant to the AAA’s arbitration rules for commercial disputes (the “Rules”). In the event of any inconsistency between the Rules and the procedures set forth in this paragraph, the procedures set forth in this paragraph will control. The arbitrator will be experienced in commercial contracts and information technology transactions. If the parties cannot agree on an arbitrator within fifteen (15) days after a demand for arbitration is filed, the AAA shall select the arbitrator. The arbitration shall take place in our office unless we agree to a different venue. The arbitrator will determine the scope of discovery in the matter; however, it is the intent of the parties that any discovery proceedings be limited to the specific issues in the applicable matter, and that discovery be tailored to fulfill that intent. Initially, the cost of the arbitration shall be split evenly between the parties; however, the party prevailing in the arbitration shall be entitled to an award of its reasonable attorneys’ fees and costs.

TERMS APPLICABLE TO RESALE OF LICENSES

If a Tenant Request includes the resale of third party licenses, then in addition to the terms of this Agreement and the Tenant Request, the following additional terms shall apply:

1. Single User License. Each third party software license (“License”) shall permit a single licensee to access and use the software in a single session. The use of a License by multiple licensees, or the simultaneous use of the software by a licensee on multiple devices, is prohibited unless expressly permitted by the text of the applicable License.
   
   
2. License Enforcement. The licensor and/or the manufacturer of the software (“Licensor”) reserves the right to monitor each licensee’s use of a License and, further, reserves the right to suspend a licensee’s access to, and use of, the software if it has a reasonable belief that the software is being used in a manner that violates its applicable end user license agreement (or similar terms or conditions of use).
   
   
3. EULA. Each licensee shall be required to accept and comply with the terms of Licensor’s end user license agreement.
   
   
4. No Subsequent Resale of Software. Software license purchased in a Tenant Request are not permitted to be subsequently resold to others unless the Tenant Request specifically and expressly states otherwise. If the Tenant Request authorizes the subsequent resale of Licenses, then Client is authorized to resell the Licenses to a third party; however, no additional subsequent resales, assignments, or transfers shall be permitted without the Licensor’s or our express written permission.
   
   
5. No Infringement. No licensee shall engage in any activity that violates, or is likely to violate, Licensor’s intellectual property rights (such as, for example, circumventing or disabling security-related functionalities in the software, creating derivative works of the software, or reverse engineering the software except where expressly permitted by law) or the intellectual property or privacy rights of any third party. No licensee shall be permitted to bid on, target, or otherwise interfere with any of Licensor’s branded keywords or trademarks in any online advertising, including Google, YouTube, Facebook/Meta, or similar online venues.

MISCELLANEOUS

1. Portions of the Services or third-party software solutions may require the acceptance of one or more third-party end user license agreements (EULAs), third-party customer agreements, and/or third-party subscription agreements (collectively, “End User Agreements”). If the acceptance of an End User Agreement is required in connection with any Services, we will provide you with the applicable agreement(s) for your review and written approval prior to acceptance. We will not accept or agree to any End User Agreements on your behalf without your prior written consent. You agree that your timely approval may be required in order to avoid delays in service delivery. End User Agreements may contain service levels, warranties, and/or liability limitations that differ from those in this Agreement. You agree to be bound by the terms of all End User Agreements you have approved. If an applicable End User Agreement is modified or amended, we reserve the right to update any associated Tenant Request to ensure compliance with the revised terms.
   
   
2. Devices. You hereby represent and warrant that with approval from Authorized Contact at Client, we are authorized to access all devices, peripherals and/or computer processing units, including mobile devices (such as notebook computers, smart phones, and tablet computers) that are connected to the Environment (collectively, “Devices”), regardless of whether such Devices are owned, leased, or otherwise controlled by you. 
   
   
3. Compliance; No Legal Advice. Unless otherwise expressly stated in a Tenant Request, the Services are not intended, and will not be used, to bring you into full regulatory compliance with any rule, regulation, or requirement that may be applicable to your business or operations. Depending on the Services provided, the Services may aid your efforts to fulfill regulatory compliance; however, unless otherwise explicitly stated in the Tenant Request, the Services are not (and should not be used as) a compliance solution. Neither the results of any Service nor any proposed or suggested remediation, action, or response plan (“Plan”) are legal advice and shall not be construed as such. Client is responsible for obtaining its own legal representation related to any of Client’s industry, regulatory, and/or statutory-related requirements (“Applicable Laws”). Client is advised to consult its own legal resources before relying on any advice or recommendations made by PORT1 that pertain to or impact Applicable Laws. Client understands that any Plan provided to Client will be based on the status of the applicable rules/laws in place at the time that the Plan is delivered, and subsequent changes to the status or content of any applicable laws/rules may render the Plan obsolete.
   
   
4. Disclosure. You warrant and represent that you know of no law or regulation governing your business that would impede or restrict our provision of the Services, or that would require us to register with, or report our provision of the Services (or the results thereof), to any government or regulatory authority. You agree to promptly notify us if you become subject to any of the foregoing which, in our discretion, may require a modification to the scope or pricing of the Services. Similarly, if you are subject to responsibilities under any applicable privacy law (such as HIPAA), then you agree to identify to us any data or information subject to protection under that law prior to providing such information to us or, as applicable, prior to giving us access to such information.
   
   
5. No Fiduciary. The scope of our relationship with you is limited to the specific Services provided to you; no other relationship, fiduciary or otherwise, exists or will exist between us. If, by operation of law, a fiduciary relationship is imposed or presumed for out-of-scope services, you hereby waive that relationship and any fiduciary obligations thereunder.
   
   
6. Virtual Security. You understand and agree that no security solution is one hundred percent effective, and any security paradigm may be circumvented and/or rendered ineffective by certain malicious actors, intentional (or unintentional) actions, or malware such as certain ransomware or rootkits that were unknown to the malware prevention industry at the time of infection, and/or which are downloaded or installed into the Environment. We do not warrant or guarantee that any security-related service, product, or solution offered, implemented, or facilitated by us will be capable of detecting, avoiding, quarantining, or removing all malicious code, spyware, malware, etc., or that any data deleted, corrupted, or encrypted by any of the foregoing (“Impacted Data”) will be recoverable. Unless otherwise expressly stated in a Tenant Request, the recovery of Impacted Data is out-of-scope. Moreover, unless expressly stated in a Tenant Request, we will not be responsible for activating multifactor authentication in any application in or connected to the Environment. You are strongly advised to (i) educate your employees to properly identify and react to “phishing” activity (e., fraudulent attempts to obtain sensitive information or encourage behavior by disguising oneself as a trustworthy entity or person through email), and (ii) obtain insurance against cyberattacks, data loss, malware-related matters, and privacy-related breaches, as such incidents can occur even under a “best practice” scenario. Unless a malware-related incident is caused by our intentionally malicious behavior or our gross negligence, we are held harmless from any costs, expenses, or damages arising from or related to such incidents.
   
   
7. No Poaching. Each party (a “Restricted Party”) acknowledges and agrees that during the term of this Agreement and for a period of one (1) year following the termination of this Agreement, the Restricted Party will not, individually or in conjunction with others, directly or indirectly hire or retain the services of any of the other party’s employees with whom the Restricted Party worked (each, a “Restricted Employee”), or solicit, induce, or encourage a Restricted Employee to discontinue or reduce the scope of the Restricted Employee’s business relationship with the other party. In the event of a violation of the terms of the restrictive covenants in this section, the parties acknowledge and agree that the damages to the other party would be difficult or impracticable to determine, and in such event, if the Restricted Party does not promptly cure the situation after receiving notice of the breach from the other party, then the Restricted Party will pay the other party as liquidated damages and not as a penalty an amount equal to one hundred thousand dollars ($100,000) or the amount that the other party paid to that employee in the one (1) year period immediately preceding the date on which the Restricted Party violated the foregoing restriction, whichever is greater. In addition to and without limitation of the foregoing, any solicitation or attempted solicitation for employment directed to a party’s employees by the Restricted Party will be deemed to be a material breach of this Agreement, in which event the affected party shall have the right, but not the obligation, to terminate this Agreement or any then-current Tenant Request immediately For Cause.
   
   
8. Collections. If we are required to send your account to Collections or to start any Collections-related action to recover undisputed fees, we will be entitled to recover all costs and fees we incur in the Collections process including but not limited to reasonable attorneys’ fees and costs.
   
   
9. Assignment. Neither this Agreement nor any Tenant Request may be assigned or transferred by a party without the prior written consent of the other party. This Agreement will be binding upon and inure to the benefit of the parties hereto, their legal representatives, and permitted successors and assigns. Notwithstanding the foregoing, a party may assign its rights and obligations hereunder to a successor in ownership in connection with any merger, consolidation, or sale of substantially all of the assets of its business or any other transaction in which ownership of more than fifty percent (50%) of its voting securities are transferred; provided, however, that the assignee expressly assumes, in writing, the assignor’s obligations hereunder.
   
   
10. Amendment. This Agreement and any Tenant Request may be amended only by a written document (email or similar electronic documents are sufficient for this purpose) that is initiated by us, and that specifically refers to this Agreement or the Tenant Request being amended and is affirmatively accepted in writing (email or electronic signature is acceptable) by you.
    
    
11. Time Limitations. The parties mutually agree that, unless otherwise prohibited by law, any action for any matter arising out of or related to any Service (except for issues of nonpayment by Client) must be commenced within six (6) months after the cause of action accrues or the action is forever barred.
    
    
12. Severability. If any provision in this Agreement or any Tenant Request is declared invalid by a court of competent jurisdiction or otherwise invalid by operation of law, then that provision will automatically be re-written, interpreted, and enforced in a manner that most closely resembles and achieves the original intent of the provision while, to the fullest extent required, comports with applicable law.
    
    
13. Other Terms. We will not be bound by any terms or conditions printed on any purchase order, invoice, memorandum, or other written communication supplied by you unless we have expressly acknowledged the other terms and, thereafter, expressly and specifically accepted such other terms in writing.
    
    
14. No Waiver. The failure of either party to enforce or insist upon compliance with any of the terms and conditions of this Agreement, the temporary or recurring waiver of any term or condition of this Agreement, or the granting of an extension of the time for performance, will not constitute an Agreement to waive such terms with respect to any other occurrences.
    
    
15. Merger. This Agreement coupled with the Tenant Request sets forth the entire understanding of the parties and supersedes all prior agreements, arrangements or understandings related to the Services; however, any payment obligations that you have or may have incurred under any prior or superseded agreement are not nullified by this Agreement and remain in full force and effect. No representation, promise, inducement, or statement of intention has been made by either party which is not embodied herein. We will not be bound by any of our agents’ or employees’ representations, promises or inducements unless they are explicitly set forth in this Agreement or in a Tenant Request. Marketing materials and promotional information available at our website (including but not limited to Service descriptions, potential results, customer endorsements, etc.) are for illustrative or educational purposes only and are not intended to create, and will not be interpreted as creating, additional duties, requirements, service levels, or promises or guarantees of specific Services or specific results.
    
    
16. Force Majeure. Neither party will be liable to the other party for delays or failures to perform its obligations because of circumstances beyond such party’s reasonable control. Such circumstances include, but will not be limited to, any intentional or negligent act committed by the other party, or any acts or omissions of any governmental authority, natural disaster, act of a public enemy, acts of terrorism, riot, sabotage, disputes or differences with workmen, power failure, communications delays/outages, delays in transportation or deliveries of supplies or materials, cyberwarfare, cyberterrorism, or hacking, malware or virus-related incidents that circumvent then-current anti-virus or anti-malware software, and acts of God.
    
    
17. Survival. The provisions contained in this Agreement that by their context are intended to survive termination or expiration of this Agreement will survive. If any provision in this Agreement is deemed unenforceable by operation of law, then that provision shall be excised from this Agreement and the balance of this Agreement shall be enforced in full.
    
    
18. Governing Law; Venue. This Agreement will be governed by, and construed according to, the laws of the state of Delaware. You hereby irrevocably consent to the exclusive jurisdiction and venue of Delaware for all non-arbitrable claims and causes of action with us that arise from or relate to this Agreement.
    
    
19. No Third Party Beneficiaries. The Parties have entered into this Agreement solely for their own benefit. They intend no third party to be able to rely upon or enforce this Agreement or any part of this Agreement.
    
    
20. Usage in Trade. It is understood and agreed that no usage of trade or other regular practice or method of dealing between the Parties to this Agreement will be used to modify, interpret, or supplement in any manner the terms of this Agreement.
    
    
21. Notices; Writing Requirement. Where notice is required to be provided to a party under this Agreement, such notice may be sent by postal mail, overnight courier, or email as follows: notice will be deemed delivered three (3) business days after being deposited in postal mail, first class mail, certified or return receipt requested, postage prepaid, or one (1) day following delivery when sent by FedEx, DHL, or other overnight courier, or one (1) day after notice is delivered by email. Notice sent by email will be sufficient only if the message is sent to the last known email address of the recipient or such other email address that is expressly designated by the recipient for the receipt of legal notices. All electronic documents and communications between the parties, including email, will satisfy any “writing” requirement under this Agreement.
    
    
22. Independent Contractor. PORT1 is an independent contractor, and is not your employer, employee, partner, or affiliate.
    
    
23. Contractors. Should we elect to use contractors to provide onsite services to you (such as the installation of equipment or the installation of software on local devices), we will guarantee that work as if we performed that work ourselves. For the purposes of clarity, you understand and agree that Third Party Services are resold to you and, therefore, are not contracted or subcontracted services; and Third Party Providers are not our contractors or subcontractors.
    
    
24. Data & Service Access. Some of the Services may be provided by persons outside of the United States and/or your data may occasionally be accessed, viewed, or stored on secure servers located outside of the United States. You agree to notify us if your company requires us to modify these standard service provisions, in which case additional (and potentially significant) costs will apply.
    
    
25. Counterparts. The parties intend to sign, accept and/or deliver any Tenant Request, this Agreement, or any amendment in any number of counterparts, and each will be deemed an original and all of which, when taken together, will be deemed to be one agreement. Each party may sign, accept, and/or deliver any Tenant Request, this Agreement, or any amendment electronically (g., by digital signature and/or electronic reproduction of a handwritten signature) or by reference (as applicable).