1. Scope.
These Terms of Service shall apply to the provision of the Sprocket Security Services (as defined in the Order) and access to the Sprocket Security Platform provided by Sprocket Security to the Customer. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Order. If there are any terms and conditions in an Order that conflict with the terms and conditions in these Terms of Service, then the terms and conditions in that Order shall control solely with respect to such Order, provided that such Order expressly states that the terms and conditions of the Order control. These Terms of Service prevail over any of Customer’s general terms and conditions regardless of whether or when Customer has submitted its request for proposal, purchase order, or other such terms. The provision of Services to Customer does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms of Service.
2. Services
Sprocket Security shall provide the Sprocket Security Services to Customer as described in the Order in accordance with these Terms of Service and the Ongoing Enablement.
3. Grant of Rights
1.1 Grant of Rights. As detailed in the Order, and subject to compliance with these Terms of Service, Sprocket Security hereby grants to Customer a nonexclusive, nontransferable right, during the Term set forth in the applicable Order, to allow users designated by Customer (“Authorized Users”) to access the platform provided by Sprocket Security in connection with the Sprocket Security Services which includes all software, interfaces, tools, utilities, and other technologies (and any related intellectual property) relating thereto (collectively, the “Sprocket Security Platform”) solely for Customer’s internal business use.
1.2 Restrictions on Use. Customer shall not, and shall ensure its Authorized Users do not, use the Sprocket Security Platform for any purposes beyond the scope of the access granted in this Agreement. Customer shall not, directly or indirectly, and shall not permit Authorized Users or any third party to: (i) copy, modify, or create derivative works of the Sprocket Security Platform, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Sprocket Security Platform; (iii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Sprocket Security Platform or any software, documentation or data related to the Sprocket Security Platform, in whole or in part; (iv) remove any proprietary notices from the Sprocket Security Platform; (v) use the Sprocket Security Platform in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; or (vi) utilize the Sprocket Security Platform to create, develop, enhance, or modify any competing product or service. Customer is responsible and liable for all uses of the Sprocket Security Platform resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of its Authorized Users, and any act or omission by any such Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer.
1.3 Suspension
. Sprocket Security may suspend Customer’s and/or any Authorized User’s access to any portion or all of the Sprocket Security Platform if: (i) Sprocket Security reasonably determines that (a) there is a disruption, security risk, threat or attack on the Sprocket Security Platform or to any other Customer or vendor of Sprocket Security; (b) Customer, or any Authorized User, is using the Sprocket Security Platform for fraudulent or illegal activities, or in violation of any contractual obligations or covenants between the Customer and a third-party; (c) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (d) Sprocket Security’s provision of the Sprocket Security Platform to Customer or any Authorized User is or becomes prohibited by applicable law or regulation; (e) any vendor of Sprocket Security has suspended or terminated Sprocket Security’s access to or use of any third-party services or products required to enable Customer to access the Sprocket Security Platform; or (f) Customer fails to timely pay any undisputed invoices.
1.4 Equipment. Customer is responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Sprocket Security Platform, including, without limitation, modems, hardware, servers, software, operating systems, networking, and web servers.
1.5 Authorized Users Compliance with Sprocket Security Terms of Use. Customer understands and agrees that it is responsible for its Authorized Users’ compliance with the End User License Agreement available at https://www.sprocketsecurity.c..., and herein incorporated by reference (“EULA”). Sprocket Security may update the EULA at any time and Customer agrees that its Authorized Users will comply with such updated EULA upon Customer’s notice of the same.
4. Change Orders.
Sprocket Security acknowledges that it is Customer’s expectation that all Services be performed and billed as set forth in the Order. In the event Customer requests any adjustment to the scope of the Order, or in the event Sprocket Security believes that changes are necessary or desirable in order for the satisfactory completion of all or a portion of the Order, Sprocket Security shall prepare and deliver to Customer a written proposal (“Change Order”) setting forth the proposed modifications to the Order. Change Orders shall be effective only if executed by authorized representatives of Sprocket Security and Customer. Upon such approval, the modifications set forth in the Change Order shall become modifications to the budget and scope of the Order.
5. Deliverables and Acceptance
Customer shall, within ten (10) business days of receipt of any Deliverable, provide Sprocket Security with written notification of any Deliverable that does not comply in all material respects to the specifications established in the “Deliverables” section of the applicable Order. In the absence of such notification, the Deliverable will be deemed satisfactory. Sprocket Security shall correct any such non-compliance within ten (10) business days of receipt of such notice. The remedy set forth in this Section represents the Customer’s exclusive remedy for any non-compliance with specifications of the Deliverables.
6. Invoicing and Payment.
Customer shall pay Sprocket Security the fees set forth in the Order (“Fees”) for the Sprocket Security Services provided under the Order. Sprocket Security shall produce an invoice to Customer upon execution of the Order and shall be compensated directly by Customer based on the terms of the Order. Customer shall pay all invoices issued by Sprocket Security within thirty (30) calendar days after receipt of the invoice.
Except for invoices that the Customer disputes in good faith, all late payments shall bear interest at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Sprocket Security for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees and expenses.
Customer is responsible for all travel and out-of-pocket expenses incurred by Sprocket Security in connection with each Order, unless the Order explicitly provides otherwise. Sprocket Security will provide reasonable notice to Customer prior to any material expenses.
All Fees required under the Orders are exclusive of all national, state, municipal or other governmental excise, sales, value-added, use, personal property and occupational taxes, excises and obligations, and Customer shall be solely responsible for all of these except for taxes based on Sprocket Security’s net income.
7.External Penetration Test.
Customer authorizes Sprocket Security to perform the Sprocket Security Services to identify possible security shortcomings that could allow unauthorized access to Customer data processing systems and the critical data contained therein. Customer acknowledges and agrees that any security testing performed as part of the Sprocket Security Services does not validate Customer security systems or in any way guarantee that your site(s) is/are secure. The security tests performed can only test for known vulnerabilities and only to the extent that our testers know of these public vulnerabilities. Also, security testing that is done at one point in time will not be able to test for vulnerabilities discovered in the future. Regardless of the thoroughness of the security testing, it only represents a subset of the potential attacks against Customer. Customer acknowledges that the Sprocket Security Services are not without risk, including business interruption, damage to property, systems, or equipment, and could result in bodily harm or injury. The Customer expressly agrees that Sprocket Security shall not be held liable in any manner for any adverse consequences flowing from the Sprocket Security Services provided under the applicable Order, except where such consequences are attributable to gross negligence or willful misconduct on the part of Sprocket Security or its employees or contractors. Customer will indemnify, defend and hold harmless Sprocket Security in accordance with Section 15 for any third party claims arising from or related to adverse consequences flowing from the Sprocket Security Services.
8. Resources and Independent Contractor Relationship.
Sprocket Security shall provide all equipment, tools, materials or supplies necessary for the performance of the Sprocket Security Services to be rendered under the Order. Sprocket Security will determine the method, details, and means of performing the work to be carried out for Customer, however Customer shall be entitled to exercise a broad general power of supervision and control over the Sprocket Security Services to ensure satisfactory performance, which includes the right to review Deliverables, stop work, and request modifications to the Order. Sprocket Security shall comply at its own expense with all applicable federal, state, local and foreign laws, ordinances, regulations and codes including those relating to the identification and procurement of required permits, certificates, licenses, insurance, approvals and inspections in connection with the Sprocket Security Services, except where the Order explicitly provides otherwise.
Nothing within under the Agreement, Order, or these Terms of Service shall be construed to create a joint venture, partnership, agency, or other employment relationship between the Customer and Sprocket Security. All Sprocket Security employees who are assigned to perform the Sprocket Security Services for Customer shall be considered to be an employee of Sprocket Security only and will not be considered an agent or employee of Customer for any purpose. Likewise, any Customer employees who from time to time may facilitate or otherwise be involved in Sprocket Security’s performance of the Sprocket Security Services for Customer shall be considered to be an employee of Customer only and will not be considered an agent or employee of Sprocket Security for any purpose.
9. Term and Termination.
9.1 Term. After the initial term indicated on the Order (the “Term”), the Agreement and Order will automatically renew for successive one (1) year periods (each a “Renewal Term”), unless either party provides the other with written notice of its intent not to renew the Agreement at least sixty (60) days prior to the expiration of the then current Term, unless and until sooner terminated as provided in these Terms of Service. If the Term is renewed for any Renewal Term, the Order will be subject to any change in the pricing payable by Customer for any increases in scope or costs during the applicable Renewal Term.
9.2 Termination. Either party may terminate the Agreement for a material breach of the Agreement which is not cured within forty-five (45) days after receipt of written notice thereof (or such other period as agreed by the parties in writing). Customer or Sprocket Security may terminate the Agreement upon written notice at such time as no Order(s) are in effect hereunder.
9.3 Effect of Termination.
9.4 Upon termination of the Order for any reason, each party shall promptly return to the other party all copies of any of the other party’s data, records, or materials of whatever nature or kind. Sprocket Security shall furnish to Customer all work in progress or portions thereof, including all incomplete work, and upon delivery thereof, shall have no further obligation to make any deliveries or perform any work hereunder.
9.5 Within ten (10) days after termination of the Order for any reason, Sprocket Security shall submit to Customer an invoice for any fees or expenses accrued under the Order. Customer, upon payment of accrued amounts properly invoiced, shall have no further liability or obligation to Sprocket Security whatsoever for any further fees, expenses, or other payment.
10. Representations and Warranties.
10.1 Mutual Representations and Warranties. Each party represents and warrants to the other that; (i) it has the requisite power and authority to execute and deliver this Agreement and perform its obligations herein; and (ii) the Agreement has been duly authorized, executed, and delivered by each party, and is a legal, valid, and binding obligation of each party, enforceable against such party in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, liquidation, fraudulent conveyance and other similar laws and principles of equity affecting creditors’ rights and remedies generally.
10.2 Customer’s Representations and Warranties. Customer represents and warrants that the Agreement, and Sprocket Security’s performance of the Sprocket Security Services, does not violate, conflict with, result in a breach of applicable federal, state, local, or foreign laws, ordinances, regulations or codes, the intellectual property rights of any third-parties, or the terms, conditions, or provisions of, or constitute a default or an event of default under any other agreement to which Customer is bound. Customer represents that the point of contact designated in the Order has the authority to direct Sprocket Security to commence and cease performance of the Sprocket Security Services, to negotiate and approve any necessary Change Orders, and to accept and approve any Deliverables.
Unless otherwise specified by Sprocket Security in the Order, Sprocket Security warrants that all Services performed under the Order will be performed in professional and workman like manner, and in accordance, in all material respects, with the requirements set forth in the Order. It is expressly understood by the parties that the Sprocket Security does not guarantee any specific results or improvements as a result of Sprocket Security Services, or the Deliverables provided under the Agreement.
EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN THE ORDER OR IN THIS SECTION 10.2,
THE SPROCKET SECURITY SERVICES AND THE SPROCKET SECURITY PLATFORM ARE PROVIDED “AS IS” AND SPROCKET SECURITY SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. SPROCKET SECURITY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. SPROCKET SECURITY MAKES NO WARRANTY OF ANY KIND THAT THE SPROCKET SECURITY SERVICES AND THE SPROCKET SECURITY PLATFORM, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON’S OR ENTITY’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF YOUR OR ANY THIRD PARTY’S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
Customer’s exclusive remedy for the Sprocket Security’s breach of the warranty contained in this 10 regarding any Sprocket Security Services and the Sprocket Security Platform provided under this Agreement is Sprocket Security’s refund of the fees paid by Customer in connection with the corresponding Sprocket Security Services. THIS SECTION SETS FORTH CLIENT’S SOLE REMEDY AND COMPANY’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH HEREIN.
11. Non-Competition and Non-Solicitation.
11.1 Customer agrees that (i) while Sprocket Security provides Services under the Order and for a period of one (1) year after the termination or expiration of the Order, Customer will not engage in any Competitive Business (as defined below); and (ii) it will not solicit, hire, or attempt to hire any person who is employed by Sprocket Security. Nothing herein will prohibit Customer from providing its normal and customary services to its clients.
11.2 The term “Competitive Business” means and includes any actual or proposed business or activity which involves developing, marketing or otherwise providing products or services which are competitive to the computer security products and services provided by Sprocket Security, within any geographic area where Sprocket Security markets such products and/or services, and includes accepting employment or otherwise providing services to a client of Sprocket Security, where the same or similar services are offered by Sprocket Security to such client. Customer’s obligations under this section shall survive the termination of the Order, as provided herein. Nothing in this section shall prohibit Customer from working with or for any entity which, or person who, is not engaged in a Competitive Business either during the pendency of the Order or after its expiration or termination.
12. Intellectual Property.
12.1 Customer Materials. Except as otherwise set forth in this Agreement, as between the parties, Customer owns all right, title and interest in and to all data, systems, or other information made available to Sprocket Security by Customer or Authorized Users (“Customer Materials”). By providing Customer Materials to Sprocket Security, Customer represents that it has the right to do so and Sprocket Security has the right to use such Customer Materials in the performance of its duties relating to the operation of the Services.
12.2 Services. Customer acknowledges and agrees that the Sprocket Security Services and the Sprocket Security Platform, and any copies, updates, and/or derivative works thereof, along with the right to make, have made, practice, employ, exploit, use, develop, reproduce, copy, distribute copies, publish, license, and/or create works derivative of any of the foregoing, exclusively belong to and are the property of Sprocket Security. Customer further acknowledges and agrees that: (i) any existing technology, methods, processes, techniques, templates, report formats, software (including source code, object code and any portions thereof) content, ideas, information and related intellectual property (including without limitation all patent, copyright, trademark, trade secret and other intellectual-property or proprietary rights therein) of Sprocket Security, any derivatives or improvements to the foregoing created or developed by Sprocket Security (alone or with others), or otherwise any of the foregoing created, developed by or on behalf of Sprocket Security outside of this Agreement, that is later used in the performance of Sprocket Security Services or in connection with the Sprocket Security Platform, or (ii) generally applicable tools, concepts, processes, models, techniques, software, and the like developed or created in connection with the Sprocket Security Services and the Sprocket Security Platform without reliance on the Confidential Information of Customer exclusively belong to and are the property of Sprocket Security (the “Sprocket Security IP”). The parties agree that Sprocket Security will own all right, title and interest in and to the Sprocket Security IP. Except for the limited rights granted to Customer in this Agreement, all other rights, title and interest in the Sprocket Security IP are reserved by Sprocket Security.
12.3 Aggregated Statistics and Application Monitoring. Notwithstanding anything to the contrary in this Agreement, Sprocket Security may monitor Customer’s and each Authorized User’s access and use of the Sprocket Security Platform and collect and compile meta-data, data and information related to Authorized User’s access and use of the Sprocket Security Platform that is and can be used by Sprocket Security for platform monitoring, pricing, and Sprocket Security’s technology management purposes (“Monitoring Data”). The same data may be aggregated and anonymized to compile statistical and performance information related to the provision and operation of the Sprocket Security Platform (“Aggregated Statistics”). Customer acknowledges that Sprocket Security may compile Aggregated Statistics based Customer Materials. Customer agrees that Sprocket Security may (a) make Aggregated Statistics publicly available in compliance with applicable law, and (b) use Aggregated Statistics to the extent and in the manner permitted under applicable law, provided that such Aggregated Statistics do not identify Customer, any Authorized User, or Customer’s Confidential Information. Customer and each Authorized User hereby grant to Sprocket Security a non-exclusive, royalty-free, perpetual, irrevocable, transferrable, worldwide license to access, revise, reproduce, distribute, and otherwise use and display the Customer Materials and perform all acts with respect to the Customer Materials as necessary for Sprocket Security to provide the Sprocket Security Services and the Sprocket Security Platform to Customer, and a non-exclusive, perpetual, irrevocable, transferrable, royalty-free, worldwide license to access, revise, reproduce, distribute, and use and display Customer Materials incorporated within the Aggregated Statistics. Customer acknowledges that, as between Customer and each Authorized User on the one hand, and Sprocket Security on the other hand, Sprocket Security owns all right, title, and interest, including all intellectual property rights therein, in and to the Aggregated Statistics, and Monitoring Data.
12.4 Professional Services Deliverables. “Deliverable” means any Sprocket Security Services deliverable which is specified in an Order executed hereunder, including, but not limited to, any design, module, software, product, or other material, or component thereof including underlying any associated documentation, to be developed for and delivered to Customer by or on behalf of Sprocket Security pursuant to this Agreement. Customer shall own all right, title and interest (including without limitation all patent, copyright, trademark, trade secret and other intellectual-property or proprietary rights therein that may be secured in any place under laws now or hereafter in effect) in and to such Deliverable. For the avoidance of doubt, Deliverables do not include Sprocket Security IP.
12.5 Feedback. Anything in the Agreement notwithstanding, any Customer or Authorized User’s feedback or input received by Sprocket Security regarding the Sprocket Security Services, or the Sprocket Security Platform or Sprocket Security IP (“Feedback”) is Sprocket Security IP, and Customer will and hereby does, and shall cause Customer employees, contractors, and agents to, assign to Sprocket Security all right, title and interest to Feedback.
13. Residuals.
Nothing in this Agreement or elsewhere will prohibit or limit Sprocket Security’s ownership and/or use of ideas, concepts, know-how, methods, models, data, techniques, skill, knowledge, and experience that Sprocket Security used, developed, or gained in connection with this Agreement.
14. Confidentiality.
14.1 Sprocket Confidential Information. Customer understands and acknowledges that Sprocket Security may, from time to time, disclose Confidential Information to Customer. The term Confidential Information shall include but not be limited to any nonpublic and/or proprietary information or materials relating to Sprocket Security’s promotional and/or marketing strategy and activity including service and sales concepts and methods, Sprocket Security’s pricing information (including but not limited to rates, margins, and budgets), Sprocket Security’s financial information, Sprocket Security’s customer lists, information about the education, background, experience, compensation and/or skills possessed by Sprocket Security’s employees, Sprocket Security’s customer satisfaction data or sales information, or any information which Sprocket Security marks or identifies as “confidential” at the time of disclosure or confirms in writing as confidential within a reasonable time (not to exceed thirty (30) days) after disclosure. Customer will not disclose Sprocket Security’s Confidential Information to any third party at any time without Sprocket Security’s prior written consent and shall take reasonable measures to prevent any unauthorized disclosure by its employees, agents, contractors, or consultants. Further, Customer’s Confidential Information shall include the terms set forth in the Order, all of which shall remain Sprocket Security’s property and shall in no event be transferred, conveyed, or assigned to Customer as a result of the services provided pursuant to the Order. The foregoing duty shall survive any termination or expiration of the Order for five (5) years.
14.2 Customer Confidential Information. Likewise, Sprocket Security understands and acknowledges that Customer may, from time to time, disclose to Sprocket Security proprietary ideas, concepts, expertise, and technologies developed by Customer relating to Customer’s business. Specifically, pursuant to the Order, Customer may provide Sprocket Security documentation, reports, memoranda, notes, drawings, plans, papers, recordings, data, designs, materials, or other forms of records or information relating to Customer’s business operations. Sprocket Security agrees not to use any of Customer’s Confidential Information for its own use or for any purpose other than the specific purpose of completing the Sprocket Security Services; not to voluntarily disclose any of Customer’s Confidential Information to any other person or entity; and to take all reasonable measures to protect the secrecy of, and avoid disclosure or use of, Customer’s Confidential Information in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized hereunder to have such Confidential Information. The foregoing duty shall survive any termination or expiration of the Order for five (5) years.
14.3 Exceptions. The following shall not be considered Confidential Information under the Order: (a) Information which is or becomes in the public domain through no fault or act of the receiving party; (b) Information which was independently developed by the receiving party without the use of or reliance on the disclosing party’s Confidential Information; (c) Information which was provided to the receiving party by a third party under no duty of confidentiality to the disclosing party.
14.4 Permitted Disclosure. Notwithstanding anything else herein, the receiving party may disclose the Confidential Information of the disclosing party to the extent that it is required pursuant to a duly authorized subpoena, court order or government authority, whereupon, as permitted by applicable law. The receiving party shall provide prompt written notice to the disclosing party, prior to such disclosure, so that the disclosing party may seek a protective order or other appropriate remedy, and, if such remedy is not obtained, the receiving party shall disclose only that portion of the disclosing party’s Confidential Information which is legally required to be disclosed and shall seek confidential treatment thereof.
15. Indemnification.
Customer shall indemnify, hold harmless and defend Sprocket Security and its officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, that are incurred by Indemnified Party (collectively, “Losses”), arising out of or related to any third-party claim alleging: (i) breach or non-fulfillment of any provision of this Agreement by Customer or Customer’s personnel; (ii) any negligent or more culpable act or omission of Customer or its personnel (including any reckless or willful misconduct) in connection with the exercised of its rights or the performance of its obligations under this Agreement; (iii) any bodily injury, death of any person, or damage to real or tangible personal property caused by the negligent or more culpable acts or omissions of Customer or its personnel (including any reckless or willful misconduct); (iv) any bodily injury, death of any person, or damage to real or tangible personal property caused by Customers use of Sprocket Security Services, the Sprocket Security Platform or Deliverables provided under this Agreement or an applicable Order; or (v) any failure by Customer or its personnel to comply with any applicable federal, state or local laws, regulations, or codes in the performance of its obligations under this Agreement.
16. Limitation of Liability.
16.1 Each party agrees and accepts that it is responsible for the proper implementation of all applicable laws, regulations, and rulings affecting its business. The Customer expressly agrees that Sprocket Security shall not be held liable in any manner for any adverse consequences flowing from the Sprocket Security Services provided under this Agreement, except where such consequences are attributable to gross negligence or willful misconduct on the part of Sprocket Security or its employees or contractors.
16.2 IN NO EVENT SHALL THE CUSTOMER OR SPROCKET SECURITY, BE LIABLE TO THE OTHER FOR PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING FROM A BREACH OF THIS AGREEMENT. SPROCKET SECURITY’S LIABILITY UNDER THIS AGREEMENT IS LIMITED TO ANY ACTUAL, DIRECT DAMAGES INCURRED BY CUSTOMER AND WILL NOT EXCEED THE TOTAL AMOUNTS PAID BY CUSTOMER TO SPROCKET SECURITY IN THE PRIOR TWELEVE (12) MONTH PERIOD UNDER THE ORDER FOR THE CAUSE OF ACTION GIVING RISE TO SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING OR ANYTHING ELSE HEREIN, NOTHING IN THIS AGREEMENT WILL LIMIT CUSTOMER’S LIABILITY FOR PAYMENT OF FEES, INDEMNIFICATION OBLIGATIONS, CONFIDENTIALITY OBLIGATIONS, BREACH OF APPLICABLE LAWS, RULES, OR REGULATIONS, FRAUD, WILLFUL MISCONDUCT, OR GROSS NEGLIGENCE.
17. Force Majeure.
Neither Customer nor Sprocket Security shall be considered liable for failure to perform its obligations under this Agreement (except for any obligations to make payments to the other party hereunder), if such failure is cause by or results from acts beyond the impacted party’s reasonable control including, without limitation, the following force majeure events, (“Force Majeure Event(s)”): Acts of God (such as fire, flood, earthquake, storm, hurricane or other natural disaster), or other events including, but not limited to, war, invasion, terrorist activities, government sanction, government order, blockage, embargo, labor dispute, strike, or interruption or failure of electricity or telephone service. No party is entitled to terminate the Order under such circumstances.
If either Customer or Sprocket Security asserts Force Majeure as a reason for failure to perform the party’s obligation, then the nonperforming party must prove that the party took reasonable steps to minimize delay or damages caused by foreseeable events, that the party substantially fulfilled all non-excused obligations, and that the other party was timely notified of the likelihood or actual occurrence of the Force Majeure Event(s).
18. Arbitration.
Any dispute, disagreement, claim or controversy between Customer and Sprocket Security arising out of or relating to the Order shall be resolved by binding arbitration, according to the Commercial Arbitration Rules of the American Arbitration Association, before a single arbitrator. The arbitrator shall be selected in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Any such arbitration will be held in the Madison, Wisconsin metropolitan area. Customer and Sprocket Security will share the costs of such arbitration equally, subject to final apportionment by the arbitrator. The decision of the arbitrator will be final and conclusive on both Customer and Sprocket Security. Judgment upon an award rendered by the arbitrator may be entered in any court of competent jurisdiction.
19. Notice.
All notices or other communications required hereunder shall be in writing and delivered either by U.S. mail, overnight courier, or as otherwise requested by the receiving party, to the addresses set forth on the Order. Notices shall be effective upon their receipt by the party to whom they are addressed.
20. Entire Agreement.
The Order constitutes the entire agreement between Customer and Sprocket Security and these terms specifically supersede any prior understandings, including written or oral agreements.
21. Severability.
If any provision of these terms is declared or found by a court of competent jurisdiction to be unenforceable, such provision shall not affect the other provisions, but such unenforceable provision shall be deemed modified to the extent necessary to render it enforceable, preserving to the fullest extent permissible the intent of the parties set forth herein
22. Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to the principles of conflicts of law.