Derive® Terms of Service

In consideration of the mutual covenants, terms, and conditions 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. Definitions.  Capitalized terms used but not defined herein shall have the meaning ascribed them in the Engagement Agreement or the Applicable SOW, as applicable.

(a.) “Affiliate” means, with respect to a party, an entity that directly or indirectly controls, is controlled by, or is under common control with that party; where “control” means the direct or indirect ownership of at least fifty percent (50%) of the then-outstanding voting shares or equity interests of that party, or the power to direct or cause the direction of the management and policies of that party, whether by contract or otherwise; but only for so long as such control relationship exists.

(b.) “Aggregated Statistics” means data and information related to Customer’s use of the Services that is used by Provider in an aggregated manner, including to compile statistical and performance information related to the provision and operation of the Services.

(c.) “Authorized User” means Customer’s employees, consultants, contractors and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to these Terms, and (ii) for whom access to the Services has been purchased hereunder.

(d.) “Customer Data” means information, data, and other content, in any form or medium, other than Aggregated Statistics, that is submitted, posted, or otherwise transmitted by or on behalf of Customer, or an Authorized User through the Services.

(e.) “Documentation” means Provider’s user manuals, handbooks, guides and end user documentation, including materials that describe or support the use of the Services provided by Provider to Customer either electronically or in hard copy form.

(f.) “Provider IP” means the Services, the Documentation, and any and all intellectual property provided to Customer, or any Authorized User in connection with the Services. For the avoidance of doubt, Provider IP includes Aggregated Statistics and any information, data, or other content derived from Provider’s monitoring of Customer’s access to or use of the Services, but does not include Customer Data. It shall also include all copyrights, patents, rights with respect to trademarks, service marks, and trade dress, trade secret rights, rights in domain names, rights with respect to databases and other compilations and collections of data or information, publicity and privacy rights, rights with respect to personal information, and other intellectual and industrial property rights anywhere in the world, whether statutory, common law or otherwise.

(g.) “Services” means Provider’s Derive™ software-as-a-service offering described in an Applicable SOW, as the same may be updated or modified by Provider from time to time.

(h.) "Third-Party Products" means any third-party products provided with or incorporated into the Services.

(i.) “Trial User” means a Customer that is granted access by Provider to use the Services on a no-charge, trial basis for a limited time specified by Provider. 

2. Trial Users.  The provisions in this Section 2 shall apply to Trial Users only; all other provisions in these Terms shall apply to all Customers (including, without limitation, Trial Users) unless expressly noted otherwise herein. 

(a.) You Assume All Risks. Your access to or use of the Services is solely at your own risk.  You are assuming all risks associated with accessing or using the Services, including, but not limited to, risks to any data you input into the Services.  You acknowledge and agree that the Services might contain defects and might not operate as intended or operate at all.

(b.) Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) DIRECT, CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PROVIDER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED ONE HUNDRED DOLLARS ($100).  THE FOREGOING LIMITATIONS OF LIABILITY WILL NOT APPLY TO PROVIDER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

(c.) Limited Access Right. Subject to your compliance with these Terms, we hereby grant to you, during the Term of these Terms, a limited, revocable, non-exclusive, non-transferrable, non-sublicensable right to access and use the Services, as well as any Documentation we make available to you, solely for the purpose of internally reviewing the features and functionality of the Services so that you can decide whether to enter into a contract with us for a paid version of the Services (the “Limited Purpose”).  You shall not allow any third party to access or use the Services.

(d.) Term and Termination. These Terms shall be effective when you agree to these Terms as provided above (the “Effective Date”) and shall continue until terminated as provided in this Section 2(d) (the “Term”). You agree that we may suspend or terminate your account for the Services at any time without notice to you. You may terminate these Terms (which will terminate your account) by notifying us in writing. Upon termination of these Terms or your account, all rights granted to you hereunder shall terminate and you shall return to us or destroy all Documentation in your possession.  In addition to any other provisions that are noted in these Terms as surviving termination of these Terms, Sections 2(a), 2(b) and 2(d) shall survive any termination of these Terms.

3. Access and Use.

(a.) Provision of Access. (THIS SUBSECTION 3(A) IS NOT APPLICABLE TO TRIAL USERS.) Subject to and conditioned on Customer's payment of all Fees due and compliance with all other terms and conditions of these Terms, Provider hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 13(h)) right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer's internal use.    

(b.) Documentation License. (THIS SUBSECTION 3(B) IS NOT APPLICABLE TO TRIAL USERS.) Subject to the terms and conditions contained in these Terms, Provider hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 13(h)) license to use the Documentation during the Term solely for Customer's internal business purposes in connection with its use of the Services.

(c.) Use Restrictions. Customer shall not use or permit the use of the Services for any purposes beyond the scope of the access granted in these Terms. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, give, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; (v) use the Services for service bureau or time-sharing purposes; (vi) use the Services or Documentation 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 (vii) provide to Provider or input into the Services any personally identifiable information other than to the extent expressly requested by Provider in connection with setting up Customer’s account or as expressly required within the features of the Services.

(d.) Reservation of Rights. Provider reserves all rights not expressly granted to Customer in these Terms. Except for the limited rights and licenses expressly granted under these Terms, nothing in these Terms grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Provider IP.

(e.) Access Credentials. Provider shall provide to Customer the necessary authentication credentials or mechanisms to establish credentials (“Authentication Credentials”) to allow Customer and Authorized Users to access the Services. Customer shall promptly notify Provider in the event of any loss, misuse or unauthorized access to any Authentication Credentials.  Customer’s account is for Customer’s and its Authorized Users’ use only and cannot be shared or used by anyone else. Customer is solely responsible for maintaining the confidentiality of its username and password, and is entirely responsible for any and all activities under its account. Customer agrees to notify Provider immediately of any unauthorized use or any other breach of security involving Customer’s username, password or account. Provider will not be liable for any loss incurred as a result of an unauthorized use of a username/password or account. Customer warrants that it has all rights, consents, and permissions necessary to provide any information that it provides to Provider in relation to the Services and for Provider’s use as set forth or contemplated in these Terms.

(f.) Suspension. Notwithstanding anything to the contrary in these Terms, Provider may temporarily suspend Customer's and any Authorized User's access to any portion or all of the Services if: (1) Provider reasonably determines that (A) there is a threat or attack on any of the Provider IP or any Provider systems; (B) Customer's or any Authorized User's use of the Provider IP disrupts or poses a security risk to the Provider IP or any Provider systems, or to any other customer or vendor of Provider; (C) Customer, or any Authorized User, is violating any access right, license or use restriction set forth in Sections 3(a), 3(b) or 3(c), or is misusing the Provider IP; (D) subject to applicable law, 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 (E) Provider's provision of the Services to Customer or any Authorized User is prohibited by applicable law; (2) any vendor of Provider has suspended or terminated Provider's access to or use of any third-party services or products required to enable Customer to access the Services; or (3) in accordance with Section 6(a)(iii) (any such suspension described in subclause (1), (2), or (3), a “Service Suspension”). Provider shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Subject to Provider’s termination rights under these Terms, Provider shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Client or Authorized User may incur as a result of a Service Suspension. For clarity, nothing in this subsection (f) shall limit Provider’s ability to terminate these Terms as permitted in these Terms.

(g.) Aggregated Statistics. Notwithstanding anything to the contrary in these Terms, Provider may monitor Customer's use of the Services and collect and compile Aggregated Statistics. As between Provider and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Provider. Customer acknowledges that Provider may compile Aggregated Statistics based on Customer Data input into the Services. Customer agrees that Provider may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or any Customer Confidential Information.

(h.) Modifications; Subcontractors.  Without limiting Provider’s other rights contained herein, Provider reserves the right, but assumes no obligation, to make any changes to the Services and Documentation that it deems, in its sole discretion, necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of the Services; (ii) the competitive strength of or market for Provider’s services; or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable law.  To the extent Provider produces a modified version of the Services, these Terms does not entitle Customer to use of the same. Provider may from time to time in its discretion engage third parties to perform or provide any aspect of the Services.

(i.) Security.  Provider will maintain reasonable data security measures designed to protect the confidentiality, security, integrity and availability of Customer Data in compliance with relevant data security and privacy laws applicable to Provider.

4. Customer Responsibilities.

(a.) General. Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of these Terms. Without limiting the generality of the foregoing, Customer is responsible and liable for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of these Terms if taken by Customer will be deemed a breach of these Terms by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of the provisions in these Terms that are applicable to such Authorized User's use of the Services, and shall cause Authorized Users to comply with such provisions.

(b.) Third-Party Products. Provider may from time to time make Third-Party Products available to Customer. Third-Party Products may be subject to their own terms and conditions, and Customer agrees to abide by all such terms and conditions that are made available to Customer by Provider or the relevant third party.  If Customer does not agree to abide by such terms and conditions for any such Third-Party Products, then Customer should not install or use such Third-Party Products.

(c.) Use of Outputs.  Customer acknowledges and agrees that all assessments and related information, including but not limited to, information pertaining to probabilities, costs, values and financial impacts, generated for Customer through the Services (collectively, “Outputs”): (1) are estimates only, (2) are for Customers internal use only, (3) must be kept strictly confidential, (4) shall not be shared with any third parties without Provider’s written approval, and (5) are based, in part, upon information provided by Customer, as well as information obtained by Provider from other sources, and Provider has not independently verified the accuracy of such information. Customer acknowledges that there are many uncertainties inherent in, and factors that can impact, any risk assessment, and Customer agrees not to make decisions based solely on the Outputs, but to use the Outputs only as a supplement to other information relevant to Customer’s cybersecurity posture and risks, including but not limited to, the current and evolving risks and threats to Customer’s business operations and industry, data and systems, as well as Customer’s risk tolerance, financial situation and legal compliance obligations.  Customer is solely responsible, and Provider shall have no liability, for any decisions made by Customer in connection with the Services or any Outputs. 

(d.) Backups.  Customer shall maintain its own backup and copy of all Customer Data in the Services, and Customer agrees that it will not use or rely upon Provider or the Services for storage of the sole version of Customer Data. 

5. Service Level and Support.

(a.) Service Level. (THIS SUBSECTION 5(A) IS NOT APPLICABLE TO TRIAL USERS.) Subject to the terms and conditions of these Terms, Provider shall use commercially reasonable efforts to make the Services available on a 24/7/365 basis.   

(b.) Support. (THIS SUBSECTION 5(B) IS NOT APPLICABLE TO TRIAL USERS.) Provider will provide email-based support to Customer for technical issues or errors pertaining to the Services.  Customer must submit all technical issues or errors to support [at] deriverisk.com (each, a “Support Request”).   Technical issues shall mean significant user problems relating to the operation of the Services. Errors shall mean a defect or combination of defects in the Services that result in the failure of the Services to function substantially in accordance with the Documentation therefor. Provider will use commercially reasonable efforts to resolve errors and assist Customer in resolving technical issues identified in a Support Request.

6. Fees and Payment. (THIS SECTION 6 IS NOT APPLICABLE TO TRIAL USERS.)

(a.) Fees. Customer shall pay Provider the fees ("Fees") as set forth in an Applicable SOW, without offset or deduction, and in accordance with the Engagement Agreement and these Terms. Customer shall make all payments hereunder in US dollars on or before the due date set forth in an Applicable SOW or, if earlier, the invoice issued by Provider. If Customer fails to make any payment when due, without limiting Provider's other rights and remedies: (i) Provider may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Provider for all reasonable costs incurred by Provider in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees; and (iii) Provider may suspend Customer's and its Authorized Users' access to any portion or all of the Services until such amounts are paid in full. Provider may increase Fee for each Renewal Term by providing notice of such increase (which may be by email) to Customer not later than ninety (90) days prior to the upcoming Renewal Term.

(b.) Taxes. All Fees and other amounts payable by Customer under these Terms are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider's income.

(c.) Auditing Rights and Required Records. Customer agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of two years after the termination or expiration of these Terms with respect to matters necessary for accurately determining amounts due hereunder. Provider may, at its own expense, on reasonable prior notice, periodically inspect and audit Customer's records with respect to matters covered by these Terms, provided that if such inspection and audit reveals that Customer has underpaid Provider with respect to any amounts due and payable during the Term, Customer shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with Section 6(a). Customer shall pay for the costs of the audit if the audit determines that Customer's underpayment equals or exceeds three percent (3%) for any quarter. Such inspection and auditing rights will extend throughout the Term of these Terms and for a period of two years after the termination or expiration of these Terms.

7. Confidential Information.

(a.) From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, and whether or not marked, designated, or otherwise identified as "confidential" (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party without reference to or use of the disclosing Party’s Confidential Information and as evidenced by written documentation. The receiving Party shall protect all Confidential Information of the disclosing Party using the same degree of care (which shall never be less than reasonable care) that the receiving Party uses to protect its own similar Confidential Information.  The receiving Party shall not disclose the disclosing Party's Confidential Information to any person or entity, except to the receiving Party's employees, Affiliates, vendors and professional advisors who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder and who are bound by confidentiality obligations to the receiving Party that are substantially similar to the confidentiality obligations in these Terms. The receiving Party shall not use the disclosing Party’s Confidential Information for any purpose other than the performance of the receiving Party’s obligations and the enforcement the receiving Party’s rights under these Terms.  Without limiting the foregoing, the receiving Party shall not access or use any Confidential Information of the receiving Party to create, or assist a third party in creating, any product or service that is competitive with the Services.  Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party (to the extent permitted by law) to permit the other Party a reasonable opportunity to obtain a protective order; or (ii) to establish a Party's rights under these Terms, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party's Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed.

(b.) Each Party's obligations of non-disclosure with regard to Confidential Information will survive the termination or expiration of these Terms for as long as such Confidential Information remains Confidential Information under these Terms.  Notwithstanding the foregoing, Customer agrees that it shall not, and is not authorized by Provider to, directly or through a third party, disclose to Provider (which action includes, but is not limited to, inputting information into the Services) any (i) Personally Identifiable Information (except as expressly requested by Provider in connection with setting up Customer’s account or as expressly required within the features of the Services), (ii) Customer or any third-party trade secrets or intellectual property, or (iii) confidential or private information of any other person or entity other than Customer. For purposes of these Terms, “Personally Identifiable Information” means any information identifying or relating to an individual or their household or that can be used to identify an individual or their household, including but not limited to an individual’s name, address, geolocation, email address, phone number, social security number, credit or debit card number, financial account number, biometric information, account passwords, medical or health condition, medical treatment or payment, health insurance, or physical or behavioral characteristics, or personal preferences or practices.

8. Intellectual Property Ownership; Feedback.

(a.) Provider IP. Customer acknowledges and agrees that Provider and its licensors own all right, title, and interest, including all intellectual property rights, in and to the Provider IP and, with respect to any Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.  Customer will not remove or alter any Provider intellectual property markings or notices included in or on the Services.

(b.) Customer Data. Provider acknowledges that, as between Provider and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Provider to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics.  Customer represents and warrants that it has all rights necessary to provide Customer Data and input Customer Data for use in connection with the Services.   

(c.) Feedback. If Customer or any of its employees, contractors, or Authorized Users sends or transmits any communications or materials to Provider by mail, email, telephone, oral interview, or otherwise, suggesting or recommending changes, improvements, fixes, features, or other modifications to the Provider IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (collectively, "Feedback"), Provider is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Provider on Customer's behalf, and on behalf of its employees, contractors, and or Authorized User’s, and/or agents, all right, title, and interest in, and Provider is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Provider is not required to use any Feedback.

9. Warranty Disclaimers.

THE PROVIDER IP IS PROVIDED "AS IS" AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER 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.  PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE PROVIDER IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.  

10. Indemnification.

Customer shall indemnify, hold harmless, and, at Provider's option, defend Provider from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees resulting from (1) any third-party claim that the Customer Data, or any use of the Customer Data in accordance with these Terms, infringes, misappropriates or violates such third party's intellectual property rights or other rights, and (2) any third-party claims based on Customer's or any Authorized User's (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by these Terms; (iii) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; or (iv) modifications to the Services not made by Provider; provided that Customer may not settle any third-party claim against Provider unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such claim or to participate in the defense thereof by counsel of its own choice.

11. Limitations of Liability. (THIS SECTION 11 IS NOT APPLICABLE TO TRIAL USERS.)

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PROVIDER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THESE TERMS IN THE TWELVE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.  THE FOREGOING LIMITATIONS OF LIABILITY WILL NOT APPLY TO PROVIDER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

12. Term and Termination.

(a.) Term. (THIS SUBSECTION 12(A) IS NOT APPLICABLE TO TRIAL USERS.) The initial term of these Terms begins on the effective date set forth in the Applicable SOW (the “Effective Date”) and, unless terminated earlier pursuant to the express provisions of these Terms, will continue in effect for the time period specified for these Services in the Applicable SOW (the "Initial Term").  Except as expressly provided otherwise in the Applicable SOW, upon expiration of the Initial Term, these Terms will automatically renew for additional successive one (1) year periods unless earlier terminated pursuant to the express provisions of these Terms or either Party gives the other Party written notice of non-renewal at least sixty (60) days prior to the expiration of the then-current term (each a "Renewal Term" and together with the Initial Term, the "Term").

(b.) Termination. In addition to any other express termination right set forth in these Terms:

(i.) Provider may terminate these Terms, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than ten (10) days after Provider's delivery of written, including that which is sent by email, notice thereof; or (B) breaches any of its obligations under Section 3(c) or Section 7;

(ii.) either Party may terminate these Terms, effective immediately on written notice to the other Party, if the other Party materially breaches these Terms, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; and

(iii.) either Party may terminate these Terms, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

(c.) Effect of Expiration or Termination. Upon expiration or earlier termination of these Terms, Customer shall immediately discontinue use of the Provider IP and, without limiting Customer's obligations under Section 7, Customer shall delete, destroy, or return all copies of the Provider IP and certify in writing to the Provider that the Provider IP has been deleted or destroyed. No expiration or termination will affect Customer's obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.

(d.) Survival. This Section 12(d) and Sections 1, 3(g), 4(c), 6, 7, 8, 9, 10, 11, 12(c) and 13 survive any termination or expiration of these Terms. Except as provided in this Section 12(d) and, where applicable, Section 2, no other provisions of these Terms survive the expiration or earlier termination of these Terms.

13. Miscellaneous.

(a.) Entire Agreement; Conflicts. These Terms, together with the Engagement Agreement, and each Applicable SOW, constitutes the sole and entire agreement of the Parties with respect to the subject matter of these Terms and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.  In the event of any conflict between the terms of these Terms and the Engagement Agreement or an Applicable SOW, or any other written agreement relating to the Services, the terms provided in these Terms shall prevail except to the extent the Parties expressly agree in an Applicable SOW that a provision in the Applicable SOW or the Engagement Agreement shall prevail.

(b.) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") must be in writing and addressed to the Parties as follows: to Provider at the address set forth on the first page of these Terms, and to Customer at the address specified for Customer in the Engagement Agreement or, in the case of a Trial User, in connection with any login as a Trial User (and Notice to Trial Users may be by email).  Either Party may designate a different address by giving Notice from time to time in accordance with this Section. All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), certified or registered mail (in each case, return receipt requested, postage pre-paid), or, where permitted under these Terms or in an Applicable SOW, by email. Except as otherwise provided in these Terms, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.

(c.) Amendment and Modification; Waiver. Except as expressly provided in Section 13(d) below, no amendment to or modification of these Terms is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in these Terms, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Terms will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

(d.) Updates to Agreement. We may modify these Terms from time to time by posting an updated version of these Terms on our website. You can determine when these Terms were last updated by reviewing the “Last Updated” date at the beginning of these Terms. Unless agreed to otherwise by us in writing, any updated version of these Terms will be effective and binding upon you immediately upon such posting. Your continued use of any Services after our posting of an updated version of these Terms constitutes your agreement to be bound by the then-current version of these Terms posted on our website.

(e.) Force Majeure. In no event shall Provider be liable to Customer, or be deemed to have breached these Terms, for any failure or delay in performing its obligations under these Terms, if and to the extent such failure or delay is caused by any circumstances beyond Provider's reasonable control, including but not limited to acts of God, flood, fire, earthquake, pandemics, epidemics, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns, electrical or power system failures, or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo. Customer shall be solely responsible to acquire and maintain internet service to access and use the Services.

(f.) Governing Law; Submission to Jurisdiction. These Terms are governed by and construed in accordance with the internal laws of the Commonwealth of Virginia, without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the Commonwealth of Virginia.  Any legal suit, action, or proceeding arising out of or related to these Terms or the licenses granted hereunder will be instituted exclusively in the federal or state courts of Richmond, Virginia, and each Party irrevocably submits to the exclusive jurisdiction and venue of such courts in any such suit, action, or proceeding (each, an “Exclusive Jurisdiction Court”).  Notwithstanding the foregoing, either Party may bring an action in any court of competent jurisdiction to enforce a judgment obtained against the other Party in an Exclusive Jurisdiction Court.  The Parties agree that the Uniform Computer Information Transactions Act (or any version thereof) adopted by any state in any form shall not apply to these Terms to the fullest extent permitted by applicable law.

(g.) Severability.  If any provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify these Terms so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

(h.) Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Provider, which consent shall not be unreasonably withheld, conditioned, or delayed. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve Customer of any of its obligations hereunder. These Terms are binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.

(i.) Authority to Engage.  Each Party represents and warrants that the individuals agreeing to these Terms and any subsequent modifications on behalf of the Customer and the Provider have the legal power, right, and actual authority to bind its respective part to the terms and conditions herein.

(j.) Export Regulation; Compliance with Law. Customer shall comply with all applicable federal laws, regulations, and rules in connection with its use of the Services and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Customer Data outside the US.

(k.) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 7 or, in the case of Customer, Section 3(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

(l.) Interpretation.  For purposes of interpreting these Terms, (a) unless the context otherwise requires, the singular includes the plural, and the plural includes the singular; (b) unless otherwise specifically stated, the words “herein,” “hereof,” and “hereunder” and similar words refer to these Terms as a whole and not to any particular section or paragraph; (c) “include” and “including” mean “including but not limited to” and “including without limitation”; (d) the word “or” will not be exclusive; (e) the word “extent” in the phrase “to the extent” means the degree to which a subject or other thing extends, and not simply “if”; (f) unless otherwise specifically stated, the words “writing” or “written” mean preserved or presented in retrievable or reproducible form, whether electronic (including email but excluding voice mail) or hard copy; (g) references to the parties include their permitted successors and assigns; and (h) unless otherwise expressly provided herein, any agreement, instrument or statute defined or referred to herein means such agreement, instrument or statute as it may be amended over time.