SAFETINET™ SUBSCRIPTION AGREEMENT ADDENDUM (SAA)
SAFETINET™ Monitoring, Anti-Virus & Patch Management Subscription Services
The SAFETiNET™ Monitoring, Anti-Virus & Patch Management Services provides continuous cloud-based remote monitoring of computer equipment, software, and operating system by integrating our SAFETiNET™ technology, and expertise into your daily computer operations.
SAFETiNET™ Monitoring paired with rapid response and resolution helps ensure your mission-critical computer is maintained at a high level of efficiency.
SAFETiNET™ Monitoring includes:
• 24x7x365 Computer Monitoring and Alerting
• Operating System Monitoring
• Event Log Monitoring and Alerting
• Application Log Monitoring and Alerting
• Real-time Inventory & Asset Management
• Real-time Change Management Auditing and Alerting
• Audit Management
• Monthly status reports
• Anti-Virus & Anti-Malware
• Patch Management
• More time working with your computer rather than on your computer
• Improved computer performance
• Better protection against security threats
• Increased productivity
• Fewer costly repairs
CONTRACT TYPE: Software As A Service Subscription
CONTRACT TERM: ONE (1) MONTH INITIAL TERM
RENEWAL TERMS: ONE (1) MONTH RENEWAL TERM
Automatic renewal with Customer payment of the monthly fee plus all applicable Federal, State and local taxes due thereon payable to and received by Atlantic.
COMPENSATION TERMS & FEE
Payment of Startup Fees, Monthly Fees, Federal, State and local taxes in full or as established in a prearranged payment schedule prior to commencement of Service.
SERVICE REQUIREMENTS & WARRANTY
Customer acknowledges that (i) Atlantic shall have no liability for security breaches or attacks of any kind related to the absence of detection from monitoring services, (ii) if customer applies any security fix or patch, Atlantic shall have no liability for security breaches or attacks of any kind related to the application of such patch on your server, (iii) Atlantic does not guarantee that vendor supplied monitoring data or reporting will be available in the event of system integrity is damaged due to malicious activity on the system or loss of network connectivity, (iv) Atlantic does not guarantee that the application of a vendor supplied patch or update will not cause other adverse technical difficulties.
ATLANTIC SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF PROFITS OR LOSS OF REVENUE RESULTING FROM (I) THE USE OF THE COMPANY’S SERVICES AND PRODUCTS BY CUSTOMER OR ANY THIRD PARTIES OR (II) THE ACTIONS OF ANY THIRD PARTY WHO EXECUTES A SECURITY EXPLOIT EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. ATLANTIC ENTIRE LIABILITY AND THE CUSTOMER EXCLUSIVE REMEDY WILL BE, AT ATLANTICS OPTION, (A) RETURN OF THE PRICE PAID FOR THE BILLING MONTH THE INCIDENT OCCURRED, LIMITED TO THE SPECIFIC SERVICE OR ITEM IN DISPUTE OR (B) IF ATLANTIC INSTALLS A VENDOR SUPPLIED PATCH THAT DOES CAUSE A PROBLEM, THE EFFORT ASSOCIATED WITH ROLLING BACK OR OTHERWISE REPAIRING THE DAMAGE CAUSED BY SAID PATCH WOULD BE BILLED ON A TIME AND MATERIALS BASIS AT OUR STANDARD HOURLY RATES OR AS COVERED BY OTHER EXECUTED ATLANTIC’S SERVICE AGREEMENT ADDENDUM (SAA) WITH CUSTOMER.
Atlantic hereby grants to Customer a perpetual, non-exclusive, non-assignable and nontransferable right and license to use the SAFETiNET™ Monitoring Services software. Customer may not decompile, reverse engineer, disassemble, recreate, modify, rent, lease, loan, sublicense, distribute (for profit or without charge) or create derivative works based upon the SAFETiNET™ Software or its underlying component parts in whole or part or transmit any SAFETiNET™ Software over a network.
The license granted herein confers no title or ownership in the SAFETiNET™ Software or any of Atlantic’s proprietary rights therein and should not be construed as a sale or transfer of any such rights.
The SAFETiNET™ Software is protected by United States patent law, copyright law, and international treaty provisions. Customer shall not remove, alter or modify the proprietary legal notices on and in the SAFETiNET™ Software without the prior written consent of Atlantic.
MONITORING SERVICES RISKS ACKNOWLEDGEMENT:
Customer has reviewed the following information outlining associated risks and issues that Monitoring Services may present and accepts the risk and related liability associated with such services.
Deploying monitoring tools can create additional security risks. Despite this, such tools usually increase security far more than they decrease security, especially when the tools contain built-in security measures to protect against security risks and threats.
The following are some risks with using these tools:
o A software vendor might distribute a patch that was corrupted with malicious code.
These risks are partially mitigated through the application of our standard techniques that are used when deploying any monitoring service. Examples of our countermeasures include the following:
o Encrypting network connections
o Use of agent authentication and encryption for network communications
o Disabling unneeded services on the central monitoring servers
o Performing timely reporting of threats and counter-measures to threats
o Conducting available mitigation techniques on vulnerabilities for which there are no patches
o Use of third-party monitoring, reporting, and remediation to ensure SAFETiNET™ infrastructure integrity
Additional concerns include the following issues:
o In an agent, antivirus, antispyware and/or backup software install, the software may decrease computer performance or stability.
o Operating system and application software patches and updates being installed may cause unexpected problems with existing software.
SAFETINET™ MASTER SERVICES AGREEMENT (MSA)
This SAFETiNET™ SUBSCRIPTION AGREEMENT FORMS PART OF A LEGAL CONTRACT BETWEEN YOU AND ATLANTIC TECHNOLOGY ENTERPRISES INC., (“Atlantic”). BECAUSE THIS AGREEMENT AFFECTS YOUR LEGAL RIGHTS AND REMEDIES, YOU NEED TO READ IT CAREFULLY.
THIS “AGREEMENT” INCLUDES:
1. THESE STANDARD TERMS AND CONDITIONS;
2. ANY DOCUMENTS REFERENCED IN THESE TERMS AND CONDITIONS OR ANY SUBSCRIPTION AGREEMENT ADDENDUM (SAA) INCLUDING ATLANTIC’S CONFIDENTIALITY AND NON-DISCLOSURE STATEMENTS (AS DESCRIBED IN SECTION 5 BELOW); AND
3. SERVICE-SPECIFIC TERMS DESCRIBED IN A SAA OR SUPPLEMENT WHICH ARE ATTACHED HERETO AND INCORPORATED HEREIN FOR ALL PURPOSES.
BY CLICKING "ADD TO CART", 'BUY IT NOW", “AGREE” OR ANOTHER ACCEPTANCE OR SUBSCRIPTION ORDER SUBMISSION BUTTON, OR BY OTHERWISE MANIFESTING YOUR ASSENT TO THE TERMS OF THIS AGREEMENT (THE FIRST DATE ON WHICH ANY SUCH ACTION OCCURS, THE “EFFECTIVE DATE”), YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY IT. IF YOU DO NOT AGREE, YOU ARE NOT AUTHORIZED TO USE THE SERVICE FOR ANY PURPOSE AND YOU MAY NOT ACTIVATE ANY SOFTWARE.
ATLANTIC MAY MODIFY THIS AGREEMENT FOLLOWING NOTICE TO YOU, WHICH NOTICE MAY BE PROVIDED VIA IN-PRODUCT MESSAGING, THE SOFTWARE, THE CONSOLE, OR VIA EMAIL TO THE EMAIL ADDRESS YOU HAVE ON FILE WITH ATLANTIC. BY AGREEING TO THE MODIFIED AGREEMENT OR USING THE SERVICE AFTER THE DATE SUCH CHANGES BECOME EFFECTIVE (AS STATED IN THE NOTICE), YOU AGREE TO THE TERMS OF THE MODIFIED AGREEMENT.
PLEASE UNDERSTAND THAT THIS AGREEMENT CONTAINS A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER. IF YOU ARE A RESIDENT OF THE UNITED STATES, THESE PROVISIONS WILL AFFECT HOW YOU ARE ABLE TO RESOLVE A DISPUTE WITH ATLANTIC. THEREFORE, YOU SHOULD READ THEM VERY CAREFULLY. YOU AGREE THAT ALL DISPUTES BETWEEN YOU AND ATLANTIC MUST BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU HEREBY WAIVE YOUR RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION.
SAFETiNET™ SUBSCRIPTION AGREEMENT
STANDARD TERMS AND CONDITIONS
Atlantic is in the business of providing a suite of services and third-party components which are by design, delivered as an integrated set of solutions combining computer endpoint monitoring, management and security as a managed service entitled (SAFETiNET™) for the Customer. Customer desires to make use of these services provided through Atlantic as defined in this Agreement.
SOME TERMS IN THIS AGREEMENT ARE USED REPEATEDLY AND ARE DEFINED IN SECTION 9 BELOW
NOW, THEREFORE, in consideration of the mutual agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. The Service Generally.
1.1 Subscription. Subject to You complying with Sections 2.6 and 3 below, Atlantic will use commercially reasonable efforts to make the Service available to You during the Subscription Term for personal or commercial use and not for resale in accordance with the terms specified in Your Subscription Documents.
2. Scope of Services.
2.1 Authorized Services. During the Term, Atlantic agrees to provide to Customer, and Customer agrees to accept from Atlantic, the Services specified in a Subscription Agreement Addendum (SAA), subject to the terms and conditions set forth herein.
2.2 Atlantic's Obligations. During the Term, Atlantic shall:
(a) provide the services as specified in each SAA Document attached hereto;
(b) support the System in accordance with the Authorized Service(s).
2.3 Access License. During the Term and subject to the limitations set forth herein, Atlantic grants to Customer a limited, non-exclusive, and non-assignable (except as expressly set forth in Section 8.5) license to access the System for the purpose of receiving the Authorized Services and
offering the System for use by End Users. Atlantic reserves all rights not expressly granted herein. Without limiting the foregoing, Customer has no right to possess the System or any components thereof in any form, unless as provided explicitly herein.
2.4 Service Mark and Trade Mark License. During the Term and subject to the limitations set forth herein, Atlantic grants to Customer a limited, non-exclusive, and non-assignable (except as expressly set forth in Section 8.5) license to use Atlantic's service marks and trademarks “Atlantic Technology Enterprises Inc.” and/or “SAFETiNET™” solely for the purpose of describing the Authorized Services and the System to its’ customer base, regulatory authorities, or required third parties who have a need to know in fulfilling a responsibility of Customer in support to the Authorized Services; and for no other purpose. Atlantic reserves all rights not expressly granted herein.
2.5 Atlantic as Customer’s Agent. Customer acknowledges and agrees that Atlantic’s implementation of the System and provision of Authorized Services hereunder necessitates certain agreements with third parties (such as telecommunication services and/or licensing agreements for software or hardware used in the System). Customer hereby appoints Atlantic as Customer’s Agent (a) to execute or enter into, on Customer’s behalf, licensing or other agreements reasonably required to deliver the System and provision of Authorized Services for Customers, (b) to install any hardware or software reasonably required for Atlantic’s implementation of the System and provision of Authorized Services hereunder, and (c) to access Customer information and data files and deliver information and data files to third parties on behalf of Customer, in furtherance of each parties’ performance of its respective duties and obligations under this Agreement and Customer agrees to provide all appropriate privacy or other notices to End Users regarding Atlantic’s access, via this agency arrangement, to necessary Customer information residing at the Customer Facility.
2.6 Customer's Obligations. As promptly as practicable following the execution of this Agreement, and at its cost and expense, Customer shall obtain or otherwise make available to Atlantic the Equipment needed for the Authorized Services. During the Term, Customer, at its cost and expense, shall:
(a) not access or use the Service in a manner not permitted by the Agreement;
(b) adhere, and cause its employees and agents if any to adhere, to the commercially reasonable procedures established by Atlantic from time to time, furthermore, you agree to take reasonable steps to prevent unauthorized access to the Service, including by protecting Your Login Information. You shall notify Atlantic immediately if You know of or suspect unauthorized use of Login Information or the Service.
(c) not offer, directly or indirectly, any product or service similar to the Authorized Services that Customer purchased as described in the SAAs;
(d) obtain, or assist Atlantic in obtaining, from Customer equipment all configuration, other formats, layouts, specifications, applications, information, or other materials as required for the provision of the Authorized Services, as may be reasonably requested by Atlantic; and
(e) pay any fees imposed on Customer by other third-parties for use of the Authorized Services, (including telecommunication line charges, interface setup fees, transition fees as may be required to make use of Authorized Services).
(f) Customer shall only use the System for lawful purposes.
(g) Any transmission or re-transmission of materials in violation of Federal or State laws and/or regulations is expressly prohibited. This transmission or re-transmission of material extends to and includes, but is not limited to: any copyrighted materials not authorized to handle, materials or communications judged to be threatening or obscene, and any materials prohibited by trade secret.
(h) Customer agrees to cooperate with Atlantic in its efforts to gather initial technical and Equipment configuration information required to establish the Service. Customer will provide Customer’s current configuration and security control information as reasonably requested by Atlantic in order to implement the Authorized Services.
(i) Customer shall ensure that any Customer Equipment (and any replacement or substitute hardware or equipment), shall conform to the specifications as provided by Atlantic.
(j) In the event remedial procedures are necessary to support the Authorized Services, as determined by Atlantic in its sole discretion, Customer will follow the reasonable instructions of Atlantic to affect such remediation.
(k) Customer will:
i) consult with Atlantic as needed in connection with the Authorized Services;
ii) cooperate with requests for information made by Atlantic related to the hardware, software, version, patch level, and configuration of devices that are part of the Authorized Services;
iii) assist Atlantic in upgrading and troubleshooting the Equipment and Authorized Services;
iv) grant Atlantic access to the Customer’s equipment and configuration information as identified and provided by Customer to scan for possible security vulnerabilities; and
v) follow installation, configuration and/or maintenance instructions provided by Atlantic to Customer as necessary to fulfill the Authorized Services.
(l) Customer agrees to promptly notify Atlantic of any change in the authorization, contact information, or employment status of any Authorized Persons. Atlantic shall incur no liability resulting from Customer’s failure to provide such notification in a commercially reasonable timeframe.
(m) Customer will be solely responsible for any unauthorized acts or omissions from Customer, Customer employees or Customer agents that occur as the result of Customer’s access to or use of the Authorized Services or via the Equipment and Customer agrees to indemnify and hold Atlantic harmless from such acts or omissions.
(n) Customer shall not lease, distribute, reproduce, duplicate, copy, sell, resell or exploit the Authorized Services for any commercial or non-commercial purposes or for the benefit of any third party including in connection with any hosting, time-sharing, service bureau, software as a service, cloud, or other technology or service.
(o) Customer shall install and maintain Equipment used in support of the Authorized Services in an appropriate environment, with adequate power and environmental controls comparable to those generally considered commercially appropriate for computing equipment.
(p) Customer shall provide Atlantic with at least five (5) business days’ notice prior to taking any action that may affect the configuration of the Equipment.
(q) Customer shall not modify the Equipment without promptly notifying Atlantic in advance of such modification.
(r) Customer agrees to make configuration changes to modems, routers, firewalls (not managed by Atlantic), and other network devices upon Atlantic’s request as required to enable communication between any Equipment and Atlantic’s NOC as covered for Authorized Services under this Agreement.
(s) Customer will provide for Atlantic’s ability to remotely access the Equipment used in support of the Authorized Services. Customer agrees to promptly notify Atlantic prior to any planned outage of such access.
(t) Customer shall not modify, tamper with or reverse engineer, disassemble or decompile Atlantic’s software loaded onto any Equipment.
(u) Customer shall promptly report all malfunctions of the Equipment or interruptions to Atlantic’s access of which it becomes aware. Customer shall undertake any procedures reasonably specified by Atlantic necessary for the rectification of such malfunctions or interruptions within a commercially reasonable time.
(v) Customer shall not review, act or share any data content where they are not the direct recipient for such content. Furthermore, Customer shall not attempt to decrypt any data content which may be encrypted unless they are the target recipient for such content, access or use the Service for purposes of competitive analysis of the Service, or for benchmarking or stress testing of the Service, or the development, provision, or use of a competing service or product.
(w) Customer shall not circumvent any restrictions or mechanisms intended to limit the use of the Service;
(x) Customer shall not use the Service in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any person or entity;
(y) Customer shall not use the Service to attempt to gain unauthorized access to the accounts of other Service users, or to websites, computer systems, or networks connected to the Service, or to otherwise interfere with or disrupt the Service or servers or networks connected to the Service;
(z) Customer shall not input, upload, transmit, or otherwise provide to or through the Service, any information or materials that are injurious or defamatory, or that contain, transmit, or activate any malicious or harmful code, or use the Service to upload, post, or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes” or any other form of solicitation.
2.7 Consulting Services. At Customer's request, Atlantic will provide (subject to the availability of Atlantic resources) consulting services to Customer at Atlantic’s then current hourly rates.
2.8 Relationship Between Atlantic and Customer. Notwithstanding Section 2.5 above, this Agreement does not in any way create the relationship of principal and agent, or any similar relationship between Atlantic and Customer, including, but not limited to, that of joint ventures, partners, employees, or associates. Neither party is granted any right or authority to assume or create any obligation or responsibility for, or on behalf of, the other party or to otherwise bind the other party, other than as may be expressly authorized in this Agreement.
2.9 No conflicting Agreements; Non-exclusive.
(a) Atlantic represents that it is not a party to any existing agreement that would prevent it from entering into and performing this Agreement. Subject to the foregoing, Atlantic may from time to time act as service provider to, perform professional services for, or enter into agreements similar to this Agreement with any other persons or entities, including but not limited to persons or entities competing in the same or similar field as Customer, without the necessity of obtaining approval from the Customer.
(b) Customer represents that it is not a party to any existing agreement which would prevent it from entering into and performing this Agreement. Subject to the foregoing, Customer may from time to time (i) engage other persons and entities to act as a provider to the Customer and perform services for the Customer, including services that are similar to the Authorized Services, and (ii) enter into agreements similar to this Agreement with other persons or entities without the necessity of obtaining approval from Atlantic.
3. Fees and Payment Terms.
3.1 Fees and Payment Terms. Customer agrees to pay the Fees set forth herein and as expressed in an SAA for the Authorized Services. Unless otherwise noted in an SAA for Authorized Services, Customer shall pay for the Set-up Fees, Training Fees, and any Monthly or Annual Fees set forth in an SAA on the Effective Date. Monthly Fees and all other reoccurring Fees are due prior to the Service(s) being Delivered. It is understood that Customer shall pay monthly Fees as set forth in the SAA for Authorized Services equal to the greater of (i) the minimum monthly fee as set forth, or (ii) the per End User monthly fee payable in accordance with the rates set forth in the SAA for Authorized Services. All Fees payable pursuant to this Agreement will be paid by Customer to Atlantic during the term of the SAA for Authorized Services between Atlantic and Customer. In the event that Customer fails to pay Atlantic the Fees referenced in this Section 3.1, Atlantic may, at its own discretion, pursue collection efforts against Customer for said Fees. Atlantic’s failure to pursue collection efforts against Customer will not be deemed a waiver or relinquishment by Atlantic of such right or power. Atlantic will be relieved of all obligations to provide services described in this Agreement during any period in which payments are delinquent. Except for Pre-paid fees or as otherwise provided in a particular SAA, payment is due on the effective date. Atlantic will assess a late payment Fee equal to the lesser of one and one-half percent (1-1/2%) of the unpaid amount or the highest interest rate allowed by applicable law for each succeeding thirty (30) day period or portion thereof in which Fees or expenses remain unpaid. No late payment Fee shall apply to any amount withheld pursuant to a properly noticed, good faith dispute, but only to the extent, such amount is found to be the result of an error by Atlantic or one of its agents in the fulfillment of the Authorized Services. All other amounts shall be subject to a late payment Fee.
3.2 Taxes. Customer shall pay all sales, use and excise taxes relating to or arising under this Agreement (exclusive of taxes based on Atlantic’s net income), unless Customer provides Atlantic with evidence of exemption in the form of a tax-exempt certificate, promptly upon execution of the SAA.
3.3 System Changes and Fee Changes.
(a) Atlantic shall have the right to update the System including, without limitation, to (i) make changes in the method of access to or delivery of the System including, without limitation, interface procedures (“Interface Changes”), (ii) add improvements to the System which are provided to Customer at no additional cost (“System Enhancements”), provided however that the quality of the Authorized Services is not materially harmed by such System modification(s).
(b) Customer may, at its option, procure additional services, (defined as services that Atlantic offers, for a fee, to provide additional functionality) and thereafter have access to such additional services. If Customer agrees to purchase any additional services from Atlantic, then Customer and Atlantic shall, before such services are Delivered to Customer, execute an SAA to reflect the inclusion of such service as an Authorized Service and the additional Fees to be paid for such service. Interface Changes, System Enhancements and additional Optional Services are collectively referred to as System Modifications.
(c) The identification in this Agreement or SAA of specific brands or names of third-party providers is for reference only. Customer acknowledges and agrees that it will not rely on such brand names or third-party providers as a promise by Atlantic to use any particular brand or third-party provider. Atlantic reserves the right to substitute any brand or third-party provider of the Authorized Services, at its sole discretion, at any time with or without notice, provided that the quality of the Authorized Services is not materially harmed by such substitution.
3.4 Service Level Credits. For the qualifying Authorized Services, if Atlantic fails to provide the System Availability to the levels set forth in the corresponding SAA for Authorized Services, then Atlantic will apply the credits against the Fees as set forth in the corresponding SAA.
3.5 Pre-paid Retainers. In the case of prepaid retainers, Atlantic will reimburse the Customer for any unused portion of a prepaid retainer.
3.6 Title of Ownership. Atlantic retains ownership of all hardware, software, operating systems, plans, and the like (“Atlantic Equipment”) it has supplied Customer and reserves the right to alter, remove or withhold such Atlantic Equipment from the Customer’s use. Should Atlantic elect to remove its furnished Atlantic Equipment from the Customer’s Facilities, the Customer will cooperate and will be responsible to pay any associated fees for the removal and/or reinstallation of this Atlantic Equipment.
4.1 System Warranty. Atlantic represents and warrants to Customer that, during the Term, the System (i) will perform in material conformance with the functionality listed in the applicable SAA, provided that the Equipment (if applicable) is properly maintained by Customer and is used in a manner approved by Atlantic, and (ii) as developed and implemented by Atlantic, is free from viruses or other damaging or malicious code at the time of Delivery. In order to access the Authorized Services, End Users must use properly configured platforms and web browsers.
4.2 Security. Atlantic’s Authorized Services, may provide Customer and Customer Facilities with procedures, which Customer is obligated to employ to help secure the integrity of the System and Customer's data. Customer shall have no right, license or privilege to conduct its own security or intrusion testing of the System without express written permission from Atlantic. Customer understands and acknowledges that certain risks are inherent in the transmission of information over the Internet. Atlantic warrants to Customer that, during the Term, Atlantic will employ commercially reasonable System security measures customary for the Authorized Services. Except as expressly provided in this Section, Atlantic makes no representation, warranty, covenant or agreement that its’ security measures will be effective, and Atlantic shall have no liability for the breach of its’ security measures, or the security of the System or Atlantic’s computer servers, unless caused by the gross negligence or willful misconduct of Atlantic, its employees, or subcontractors.
4.3 Licenses. Atlantic warrants that it has obtained, or will promptly obtain, all necessary rights and licenses to provide the System and Authorized Services to Customer as described herein.
4.4 Warranty Claims/Remedies. Customer must submit any claim by Customer for breach of warranty in writing on or before expiration of the Term, or such claims shall be deemed waived. Customer's sole remedy and Atlantic’s sole liability for breach of the warranties made in this Agreement shall be, at Atlantic's option, to correct any nonconformity in the Authorized Services or replace any nonconforming Authorized Services or Software with conforming Authorized Services or Software; provided that nothing in this Section 4.4 shall limit Customer’s rights to indemnification as provided in Section 7.2. Atlantic’s warranty obligations are solely for the benefit of Customer and Customer shall have no authority to extend or transfer this warranty to any other person or entity (except as expressly set forth in Section 8.5).
4.5 Disclaimer. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, THE SYSTEM AND ALL AUTHORIZED SERVICES ARE PROVIDED BY ATLANTIC "AS-IS" AND "WHERE IS”. ATLANTIC, ON BEHALF OF ITSELF AND ANY THIRD-PARTY VENDORS PROVIDING AUTHORIZED SERVICES OR PORTIONS THEREOF HEREUNDER, SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, AND FITNESS FOR A PARTICULAR PURPOSE AS TO THE SYSTEM OR AUTHORIZED SERVICES PROVIDED UNDER THIS AGREEMENT. Without limiting the foregoing, Atlantic does not warrant that the use of the System, the Atlantic Software or Atlantic’s computer servers will be uninterrupted or error-free. Some Authorized Services provided by Atlantic may involve sending email to End Users on Customer’s behalf. Delivery of a given message is not guaranteed. Due to factors beyond Atlantic’s reasonable control, including but not limited to a broad range of potential telecommunications failures, ISP configuration problems, or the presence of anti-Spam devices, it is possible that an email sent over the network may not reach its intended recipient.
5. Confidentiality and Non-Disclosure.
5.1 In the performance of this Agreement, either party may disclose to the other certain Proprietary Information. For the purposes of this Agreement, (i) “Proprietary Information” means Trade Secrets and Confidential Information; (ii) “Trade Secrets” shall have the definition set forth in the Uniform Trade Secrets Act, as amended from time to time; and (iii) “Confidential Information” means information that is of value to its owner and is treated as confidential other than Trade Secrets. Proprietary Information includes, without limitation, all non-public personal information regarding Customer, End-user and Customer clients data and their accounts (non-public personal information is defined under subtitle A of Title V of the Gramm-Leach-Bliley Act, 15 USC 6801-6809 and its implementing regulations), all financial information, the Software, Documentation, business plans, customer lists, procedures, formulas, discoveries, inventions, improvements, innovations, concepts and ideas. The receiving party agrees to hold the Proprietary Information disclosed by the other party in strictest confidence and not to, directly or indirectly, copy, use, reproduce, distribute,
manufacture, duplicate, reveal, report, publish, disclose, cause to be disclosed, or otherwise transfer the Proprietary Information for any purpose whatsoever other than as expressly provided in this Agreement.
5.2 Both parties acknowledge and agree that the Proprietary Information shall remain the sole and exclusive property of the disclosing party or third party providing such information to the disclosing party. The disclosure of the Proprietary Information does not confer upon the receiving party any license, interest, or rights of any kind in or to the Proprietary Information, except as expressly provided in this Agreement. Subject to the terms set forth herein, the receiving party shall protect the Proprietary Information of the disclosing party with the same degree of protection and care the receiving party uses to protect its own Proprietary Information, but in no event less than reasonable care. With regard to Trade Secrets, the obligations in this Section shall continue for so long as such information constitutes a Trade Secret. With regard to other Proprietary Information, the obligations in this Section shall continue until such time as such Proprietary Information becomes generally known and publicly available through no act or omission of the receiving party.
5.3 Nothing in this Section 5 shall prohibit or limit the receiving party’s use of information if (i) at the time of disclosure hereunder such information is generally available to the public; (ii) after disclosure hereunder such information becomes generally available to the public, except through breach of this Agreement by the receiving party; (iii) the receiving party can demonstrate such information was in its possession prior to the time of disclosure by the disclosing party; (iv) the information becomes available to the receiving party from a third party which is not legally prohibited from disclosing such information; (v) the receiving party can demonstrate the information was developed by or for it independently without the use of such information; or (vi) if disclosure is required under applicable law or regulation.
5.4 Neither party shall disclose the terms of this Agreement except (i) as required by applicable law or regulation, (ii) to its employees and agents with a need to know such terms, or (iii) in connection with a potential merger or sale of all or substantially all of its assets; provided that the receiving party agrees in writing to be bound by the restrictions of this Agreement. However, the mere existence of this Agreement between the parties does not constitute Proprietary Information.
5.5 In the event that either party or its respective directors, officers, employees, consultants or agents is required pursuant to an order or requirement of a court, administrative agency, or other governmental body to disclose any Proprietary Information of the other party, the party required to make such disclosure shall give prompt notice of such requirement sufficient to allow the other party to seek a protective order or other appropriate relief prior to such disclosure. In the event that such a protective order is not obtained, the party required to make such disclosure shall disclose only that portion of the Proprietary Information which such party’s legal counsel advises that it is legally required to disclose.
5.6 Each party agrees that its obligations under this Section 5 are necessary and reasonable in order to protect the other party and the other party’s business, and expressly agrees that monetary damages would be inadequate to compensate the other party for any breach by such party of any covenants and agreements set forth herein. Accordingly, each party acknowledges that any such violation or threatened violation will cause irreparable injury to the other party and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the other party shall be entitled to seek injunctive relief against the threatened breach of this Agreement or the continuation of any such breach, without the necessity of proving actual damages.
5.7 Third party agents. Furthermore, Atlantic carefully controls the way in which information is shared. Sharing information concerning a customer's business is only among Atlantic, its agents, and subcontractors who are under agreement to maintain the privacy and confidentiality of our Customers information. Atlantic DOES NOT disclose nonpublic or confidential information about our customers to any other third parties without first obtaining the Customers written consent or as required by law.
5.8 Marketing. Atlantic may refer to Customer by trade name or trademark, and may briefly describe Customer’s business, in Atlantics’ marketing materials and web site with Customer written consent.
6. Term and Termination.
6.1 Term. This Agreement shall commence as of the Effective Date and shall remain in effect (unless sooner terminated pursuant to Section 6.2) while there is at least one SAA in effect between the parties or Atlantic is providing transition services to the Customer. Each SAA shall automatically renew without interruption for successive terms as specified in a particular SAA, (each, a “Renewal Term”), unless either party (at its sole option, for any reason or for no reason) gives written notice of intent not to renew the applicable SAA before the beginning of any Renewal Term.
6.2 Right to Terminate. Notwithstanding any other provision hereof, this Agreement may be terminated as follows:
(a) by mutual agreement of the parties;
(b) by either party at any time if the other party has materially breached the Agreement and, if the breach is curable, the breaching party has failed to cure such breach (i) within fifteen (15) days after written notice thereof in the case of failure to pay amounts due and owing, or (ii) within thirty (30) days in case of all other curable breaches;
(c) in the event, either party materially breaches any of the provisions hereof, and such breach is not curable, this Agreement shall be immediately terminable by the non-breaching party upon written notice to other party. Without limiting the foregoing, any violation of Section 5 hereof (Confidentially and Non-Disclosure) or any use of the System in a manner inconsistent with the terms of this Agreement, shall constitute a non-curable breach;
(d) in the event that Customer shall be delinquent by more than thirty (15) days in the payment of Fees, Atlantic shall have the right to terminate this Agreement immediately after the last such delinquency.
(e) immediately by Atlantic in the event that the Customer becomes insolvent, files or is forced to file any petition in bankruptcy, or makes an assignment for the benefit of its creditors; or is forced into liquidation by a non-appealable judicial order;
(f) immediately by Customer if Atlantic files a petition in bankruptcy under Chapter 7 of the U.S. Bankruptcy Code
(g) by Customer, without cause, upon written notice to Atlantic before the beginning of any Renewal Term (“Customer Termination Notice").
6.3 Effect of Termination.
(a) Upon termination of this Agreement, Customer shall promptly and without charge return to Atlantic all copies of all Documentation, maintenance and policy manuals and other publications of Atlantic relating to the System (collectively “Copies”). Customer shall destroy all Copies contained on any hard drive or other fixed medium of storage. Customer’s license to access the Software and license to use Atlantic’s trademarks and service marks as provided in this Agreement shall immediately terminate. Within sixty (60) days from the date of termination of this Agreement, an officer of Customer shall certify in writing to Atlantic that Customer has complied with all requirements of this Section.
(b) Upon termination of this Agreement, Atlantic shall deny Customer further access to the Authorized Services without liability on the part of Atlantic to the Customer.
(c) In the event of a curable breach by Customer, and upon furnishing Customer with written notice of said breach, Atlantic reserves the right to withhold Authorized Services unless and until the breach has been cured.
6.4 Effect of Lapsed Renewal. If the Authorized Service(s) lapse and are not renewed prior to the expiration of the Authorized Service, Atlantic reserves the right to require a system inspection at Customer’s expense prior to the acceptance by Atlantic for renewal of the Authorized Service.
7. Indemnifications; Other Relief.
7.1 Indemnification by Customer.
(a) Customer shall indemnify, defend and hold harmless Atlantic, its officers, directors, shareholders, employees, agents and affiliates from and against any claims, losses, damages, liabilities or expenses (including, without limitation, reasonable attorneys' fees and expenses) (collectively, "Atlantic Indemnified Claims") resulting from or arising out of (i) grossly negligent or intentional misuse of the System or any part thereof by Customer, Customer's agents or any End User, including, without limitation, any misrepresentations made by Customer with respect to the System; (ii) Customer's noncompliance or alleged noncompliance with the provisions of applicable law or regulation, (iii) any allegation that any trademark, trade name, service mark, logo or other information (or any portion thereof) provided by Customer to Atlantic in connection with the provision of the Authorized Services infringes upon or misappropriates any copyright, patent, trademark or trade secret of any third party, or (iv) Customer’s violation of any provision of any agreement between Customer and any third party.
(b) Atlantic shall promptly notify Customer in writing and in reasonable detail of any Atlantic Indemnified Claim. Customer shall have the authority to control the defense and settlement of such Atlantic Indemnified Claim, and Atlantic shall give reasonable assistance to Customer to enable Customer to defend the Atlantic Indemnified Claim. Atlantic shall have the right, but not the obligation, to participate, at its own expense, with respect to any such Atlantic Indemnified Claim. No such Atlantic Indemnified Claim shall be settled or compromised by Customer without the prior written consent of Atlantic if such settlement or compromise in any manner indicates that Atlantic contributed to or was responsible for the cause of any such Atlantic Indemnified Claim, or if such settlement or compromise imposes any obligations upon Atlantic or requires Atlantic to take any action.
(c) Customer shall not be liable for any Atlantic Indemnified Claim under this Section 7.1 to the extent that such Atlantic Indemnified Claim is found in a final and binding arbitration award or a final non-appealable judgment by a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of Atlantic.
(d) This Section sets forth the sole and exclusive remedy of Atlantic and the complete liability of Customer with respect to any Atlantic Indemnified Claim hereunder.
7.2 Indemnification by Atlantic.
(a) Atlantic shall indemnify, defend and hold harmless Customer, its officers, directors, shareholders, employees, agents and affiliates from and against any claims, losses, damages, liabilities or expenses (including, without limitation, reasonable attorneys' fees and expenses) (collectively, "Customer Indemnified Claims") resulting from or arising out of (i) Criminal Acts (defined below); (ii) Atlantic's noncompliance or alleged noncompliance with the provisions of applicable law or regulation; (iii) any allegation by any third party that the System (or any portion thereof) infringes upon or misappropriates any copyright, patent, trademark or trade secret of any third party, or (iv) damages paid to a third party due to an uncured or incurable breach by Atlantic of any provision of this Agreement or any agreement between Atlantic and any third party relating to an Authorized Service which resulted in harm or loss to such third party. Atlantic shall have no liability for any Customer Indemnified Claim based upon the unauthorized modification, combination, operation or use of any portion of the System with equipment, data, software, or programming not supplied by Atlantic. For purposes of this Section, "Criminal Act" means the conviction for, or plea of nolo contendere to, a felony or misdemeanor involving the unlawful taking of money, securities or property (e.g. unauthorized funds transfers via the System) by Atlantic, its employees, subcontractors or agents (collectively “Atlantic Agents”); provided that in the case of a conspiracy or collusion between an Atlantic Agent and Customer or its employee(s), Atlantic’s liability under this Section 7.2 shall extend only to the extent of such Atlantic Agent’s allocated fault and if no allocation is made by a court, then pro rata among the parties involved.
(b) Customer shall promptly notify Atlantic in writing and in reasonable detail of any Customer Indemnified Claim. Atlantic shall have the authority to control the defense and settlement of such Customer Indemnified Claims and Customer shall give reasonable assistance to Atlantic to enable Atlantic to defend the Customer Indemnified Claim. Customer shall have the right, but not the obligation, to participate at its own expense, with respect to any such Customer Indemnified Claim. No such Customer Indemnified Claim shall be settled or compromised by Atlantic without the prior written consent of Customer if such settlement or compromise in any manner indicates that Customer contributed to or was responsible for the cause of any such Customer Indemnified Claim, or if such settlement or compromise imposes any obligations upon Customer or requires Customer to take any action.
(c) Atlantic shall not be liable for any Customer Indemnified Claim under this Section 7.2 to the extent that such Customer Indemnified Claim is found in a final and binding arbitration award or a final non-appealable judgment by a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of Customer.
(d) If the System is finally determined by a court of competent jurisdiction to constitute an infringement of any patent, copyright, trademark or other trade secret of a third party and its use is enjoined, Atlantic shall have sole discretion to settle or not to settle the Customer Indemnified Claim and shall either (i) procure the right for Customer to continue to use the System under this Agreement, (ii) replace or modify the System with a version of the System that is not so infringing, or (iii) if (i) and (ii) above are not reasonably available, then, in Atlantic’s sole discretion, remove the System and terminate the Agreement without any Termination Fees being owed by Customer.
(e) This Section sets forth the sole and exclusive remedy of Customer and the complete liability of Atlantic with respect to any Customer Indemnified Claim hereunder.
7.3 Arbitration and Class Action Waiver. Except as provided below, all disputes or claims relating in any manner to this Agreement shall be settled by final and binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association and judgment upon the award may be entered in any court have jurisdiction thereof except that You retain the right to bring an individual action in small claims court (a “Small Claims Action”). In addition, because Atlantic is licensing certain proprietary technology to You, Atlantic may seek injunctive or other equitable relief in any court of competent jurisdiction to prevent the actual, suspected, or threatened infringement, misappropriation, or violation of its copyrights, trademarks, trade secrets, patents and patent rights, database rights, and other proprietary and intellectual property rights (each, an “IP Protection Action”).. The parties agree that the arbitrators in any such arbitration shall not be authorized to award any punitive damages in connection with any controversy or claim settled by arbitration hereunder. Any arbitration shall take place in New Jersey. The expenses of the arbitrators shall be allocated by such arbitrators. The arbitration shall be conducted before a panel of three (3) arbitrators, one (1) selected by Customer, one selected by Atlantic, and one selected by mutual agreement of the arbitrators selected by Customer and Atlantic. If a party fails to select an arbitrator as required herein within thirty (30) days after written request by the other party ("Selecting Party”), the Selecting Party shall then be entitled to select the second arbitrator, with the two (2) selected arbitrators selecting the final arbitrator by mutual agreement.
Class Action Waiver. ANY PROCEEDINGS TO RESOLVE OR LITIGATE ANY DISPUTE IN ANY FORUM MUST BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS. NEITHER YOU NOR ATLANTIC MAY SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION, A REPRESENTATIVE ACTION, A COLLECTIVE ACTION, A PRIVATE ATTORNEY GENERAL ACTION, OR IN ANY PROCEEDING IN WHICH YOU OR ATLANTIC ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. NO ARBITRATION OR PROCEEDING MAY BE JOINED, CONSOLIDATED, OR COMBINED WITH ANOTHER ARBITRATION OR PROCEEDING WITHOUT THE PRIOR WRITTEN CONSENT OF YOU, ATLANTIC, AND ALL PARTIES TO ANY SUCH ARBITRATION OR PROCEEDING.
7.4 Injunctive Relief. Notwithstanding any other term of this Agreement, the parties may apply to a court of competent jurisdiction for any appropriate equitable or injunctive relief, including, without limitation, preliminary and permanent injunctions, and temporary restraining orders. The parties also acknowledge that (i) any use or threatened use of data related to Customer, client of Customer, the Software, the System, or either party’s trademarks or service marks in a manner inconsistent with this Agreement, or (ii) any other misuse of the Proprietary Information of either party will cause immediate irreparable harm to the non-breaching party for which there is no adequate remedy at law. Accordingly, the parties agree that the non-breaching party shall be entitled to seek immediate and permanent injunctive relief from a court of competent jurisdiction in the event of any such breach or threatened breach. The parties hereby waive the defense that the non-breaching party has or will have an adequate remedy at law for any such breach or threatened breach. The parties agree and stipulate that the non-breaching party shall be entitled to such injunctive relief without posting a bond or other security; provided however that if the posting of a bond is a prerequisite to obtaining injunctive relief, then a bond in the amount of $1,000 shall be sufficient. Nothing contained in this Section 7.4 shall limit either party’s right to any remedies at law, including the recovery of damages from the other party for breach of this Agreement. The prevailing party in any action pursuant to this Section 7.4 shall be entitled to collect from the other party its attorneys’ fees and full costs of such action.
7.5 Limitation of Liability.
(a) For purposes of this Section 7.5: (i) the term "Atlantic" shall mean Atlantic and its subsidiaries and affiliates, and the officers, stockholders, and endorsers of each such entities, and (ii) the term "Customer" means Customer and its’ affiliates, officers, and shareholders.
(b) ATLANTIC SHALL HAVE NO LIABILITY (WHETHER DIRECT OR INDIRECT, IN CONTRACT, TORT, OR OTHERWISE) TO CUSTOMER FOR ANY LOSSES OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR THE AUTHORIZED SERVICES PROVIDED BY ATLANTIC HEREUNDER EXCEPT TO THE EXTENT THAT ANY SUCH LOSSES OR DAMAGES ARE FOUND IN A FINAL AND BINDING ARBITRATION AWARD OR A FINAL NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM (I) ATLANTIC’S BREACH OF THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT OR (II) THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ATLANTIC.
(c) IN NO EVENT SHALL EITHER PARTY, OR ANY THIRD PARTY VENDORS PROVIDING AUTHORIZED SERVICES OR PORTIONS THEREOF HEREUNDER, BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES ARISING OUT OF OR RELATING IN ANY MANNER TO THIS AGREEMENT UNDER ANY CAUSE OF ACTION, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER ACKNOWLEDGES THAT FAILURE TO PAY FEES ARISING UNDER THIS AGREEMENT IN ACCORDANCE WITH THE PAYMENT SCHEDULE CONSTITUTES A DIRECT DAMAGE TO ATLANTIC.
(d) In no event shall the maximum, cumulative liability of Atlantic relating in any manner to this Agreement (excluding any claims arising under Sections 7.1 or 7.2 hereof), regardless of the type or nature of the claim(s), exceed the Fees paid to Atlantic by Customer under this Agreement within the twelve (12) month period immediately preceding the occurrence of such claim(s).
(e) Neither party may bring any claim under this Agreement more than one (1) year after such claim first accrues.
(f) The limitations of liability in this Section 7.5 shall not apply to Customer's obligation to pay Fees including, without limitation, Termination Fees.
7.6 Use of the System by Third Parties. Without limiting the terms of Section 7.5, the parties acknowledge that Customer is solely responsible for the use of the System (and any resulting damages) by End Users and other third parties including, without limitation, any improper or unauthorized disclose of confidential information via the System; provided however that Atlantic shall be liable to the extent of any improper or unauthorized transactions of disclosure of confidential information via the System by Atlantic’s employees and contractors; however, in the case of a conspiracy or collusion between an Atlantic agent and Customer or its’ employee(s), Atlantic shall be liable only to the extent of such Atlantic agent’s allocated fault and if no allocation is made by a court, then pro rata among the parties involved.
7.7 Insurance. Atlantic, at its sole cost and expense, shall maintain appropriate insurance with Commercial General Liability Broad Form Coverage, including Personal injury / Property Damage Coverage in a combined single limit of not less than $1,000,000.
8. Miscellaneous Provisions.
8.1 Waiver. Any failure of a party to comply with any obligation, covenant, agreement, or condition herein may be expressly waived in writing by the other party, but such waiver or failure to insist upon strict compliance with such obligation, covenant, agreement or condition shall not operate as a waiver of, or estoppel with respect to, any subsequent or other failure.
8.2 Entire Agreement. This Agreement, including the Exhibits, and SAA hereto constitutes the entire understanding of the parties with respect to the subject matter of this Agreement and supersedes all prior understandings, whether written or oral, between the parties with respect thereto. Notwithstanding the content of any purchase order, sale order, sale confirmation, or any other document relating to the subject matter of this Agreement, this Agreement shall take precedence over any such document, and any conflicting, inconsistent, or additional terms contained therein shall be null and void.
8.3 No Third-Party Beneficiary Rights. No provision of this Agreement is intended or shall be construed to provide or create any third-party beneficiary right or any other right of any kind in any End User or any client, customer, member, affiliate, insurer, lender, shareholder, partner, officer, director, employee or agent of any party hereto, or in any other person.
8.4 Third Party Services. If Customer utilizes a third party which is incorporated into the System to process Customer's information, the use of such third party shall not diminish or relieve Customer of its obligations under this Agreement.
8.5 Amendment; Binding Effect; Assignment.
(a) No amendment, modification or alteration of the terms of this Agreement shall be binding unless in writing and executed by the parties hereto. This Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the parties and their respective successors (including, without limitation, successors by merger) and permitted assigns.
(b) Assignment. Customer may not assign this Agreement in whole or in part without the prior written consent of Atlantic. Any attempted assignment in violation of this Section shall be void and of no effect.
8.6 Regulatory Compliance. To the extent that Customer is under the oversight of a regulated industry, Customer shall be responsible for (i) compliance with all state and federal laws and regulations governing the institution; (ii) regulatory disclosure requirements, including, but not limited to, any disclosure to its clients with respect to the Authorized Services and each Customer product or service made available through the System (“Customer Product/ Service”); (iii) the terms and conditions of any Customer Product/Service and any limitations on which any Customer Product/Service may be accessed, utilized or transactions originated by any user of such services; (iv) determining the authority of any person accessing a Customer Product/Service; and (v) preparing, maintaining, and monitoring compliance with verifiable documentation with respect to the foregoing. Customer must independently verify its compliance with governmental regulations through its own legal counsel and shall not rely upon Atlantic for advice regarding such compliance. Atlantic shall, during the Term of this Agreement, be in compliance with federal and/or state rules and regulations as they relate to vendors of the Authorized Services. In the event that there is a significant change in the manner by which the Authorized Services can be furnished hereunder, as a result of a regulatory compliance requirement, Atlantic and Customer shall negotiate in good faith to resolve the compliance issue. If Atlantic determines that compliance is cost prohibitive, Atlantic may elect to terminate the Agreement without penalty, by furnishing Customer with thirty (30) days prior written notice. Atlantic shall comply with any reasonable Customer request in the fulfillment of audit process requirements by examiners. Depending upon the scope of the audit request, there may be a charge associated with fulfilling this request.
8.7 Force Majeure. Atlantic shall not be liable for loss or damage resulting from any cause beyond its reasonable control, including, but not limited to, (i) Internet network failures or Internet capacity limitations, (ii) compliance with regulations, orders or instructions of any federal, state or municipal government or any department or agent thereof that delay or restrict performance hereunder, or (iii) acts of God, acts of third parties including terrorist acts, unauthorized System access or intrusions, acts or omissions of Customer, acts of civil or military authority, fires, embargoes, war or riot.
8.8 Governing Law. This Agreement shall be governed, construed and enforced in accordance with the laws of the State of New Jersey and the U.S. without giving effect to the conflict-of-laws principles thereof. The parties agree that jurisdiction over and venue in any legal proceeding arising out of or relating to this Agreement will exclusively be in the state or federal courts located in New Jersey.
8.9 Severability. If any provision of this Agreement is held to be illegal, invalid, or unenforceable under present or future laws effective during the Term, such provision shall be fully severable. This Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part of this Agreement, and the remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid, or unenforceable provision or by its severance from this Agreement.
8.10 Counterparts. This Agreement may be executed simultaneously or in two or more counterparts, each of which together shall constitute one and the same instrument and shall be deemed an original hereof.
8.11 Notices. All notices required or permitted under this Agreement shall be made in writing and shall be deemed to have been duly given if delivered personally or sent by registered or certified mail (return receipt requested), trackable overnight courier service, or facsimile. All notices shall be addressed to a party at the address or facsimile number indicated in the signatory page of this Agreement, or at such other address and/or facsimile number as may be designated by such party in a written notice delivered to the other party as set forth in this Section.
8.12 Export. Customer agrees not to export, directly or indirectly, any U.S. source technical data acquired from Atlantic or any products utilizing such data to countries outside the United States, which export may be in violation of the United States export laws or regulations.
8.13 Survival. All provisions of this Agreement that by their nature are intended to survive the expiration or termination of this Agreement shall survive and remain in full force and effect including, but not limited to, the applicable provisions of Sections 3, 4, 5, 6, 7, and 8.
8.14 Headings; Interpretation. Headings of particular Sections are inserted only for convenience and shall not be considered a part of this Agreement or used to define, limit, or construe the scope of any term or provision of this Agreement. Should any provision of this Agreement require judicial interpretation, the parties agree that the court or arbitrators construing the same shall not apply a presumption that the terms of this Agreement shall be more strictly construed against one party than against another.
Capitalized terms used without definition in the Exhibits and SAA shall have the meanings set forth in this Master Services Agreement.
In addition to all other terms defined herein, the following terms shall have the following meanings:
(a) "Agreement" means this Subscription Services Agreement, together with all Exhibits and properly executed Service Agreement Addendums (“SAA”) attached hereto or hereafter attached by mutual consent of the parties (all of which are incorporated herein by reference).
(c) “Authorized Services” means the services requested by Customer and defined in an SAA purchased by Customer in accordance with Section 3.3(b).
(d) “Atlantic Equipment” means Equipment components owned and maintained by Atlantic, agent of Atlantic, or third-party provider used in performing the Authorized Services.
(e) “Customer Equipment” means any Equipment component owned, leased, or rented by Customer and is used in performing the Authorized Services.
(f) “Customer Facility” shall mean the Customer’s internal data processing locations.
(g) “Delivered” or “Delivery” means when the Authorized Service(s), as indicated on the Service Agreement Addendum, have been installed.
(h) "Documentation" means that portion of the System that provides installation and operating instructions for use of the System by Customer.
(i) "End User" means Customer, an employee, agent or authorized third-party of Customer who has access to the System.
(j) “Equipment” (if applicable) means servers, appliances, software, communications software, communications lines, router, channel service unit, dial-up modem, connecting cables, and any additional equipment (e.g. personal computer, etc.) needed to meet the required specifications for use with the Authorized Services.
(k) “Equipment SLA” refers to the specific service level agreements and user license agreements provided by third parties or manufacturers in support to the Equipment component procured by Customer and incorporated into the Authorized Services.
(l) "Fees” mean all fees payable by Customer to Atlantic under this Agreement.
(m) “ISP” means Internet Service Provider.
(n) “NOC” means Network Operations Center
(o) “Service Agreement Addendum” means an Attachment to this Agreement that describes an Authorized Service, sets forth additional terms and conditions governing the provision of such Authorized Service and specifies the requirements for such Authorized Service.
(p) “SAA” means Service Agreement Addendum
(q) "Software" means that portion of the System that is comprised of applications installed on Equipment as required in performing the Authorized Services.
(r) "System" shall mean Atlantic's and Third-party proprietary architecture, equipment, software, facilities, and services as more fully described in Service Agreement Addendums (SAA) attached hereto, together with Equipment and System Modifications (defined in Section 3.3(b)) made available to Customer under this Agreement.
(s) “Term" means the Initial Term (defined in Section 6.1) and all Renewal Terms (defined in Section 6.1).