Subscription Terms and Conditions

These Enterprise SubscriptionTerms and Conditions referred to as the “Agreement”),effective as of the payment date via “Stripe”, is entered into by andbetween ShieldsUp, a service offering of NHM, LLC, a New York State LLC (“Company”) and the “Customer” (together with Company,the “Parties”, and each, a “Party”).

WHEREAS, Company has theentire legal and beneficial right to license the Licensed Service, and desiresto license the Licensed Service to Customer; and

WHEREAS, Customer desiresto obtain a license to use the Licensed Service for its internal businesspurposes, subject to the terms and conditions of this Agreement.

NOW, THEREFORE, inconsideration of the mutual covenants, terms and conditions set forth herein,and for other good and valuable consideration, the receipt and sufficiency ofwhich are hereby acknowledged, the Parties agree as follows:

1.                  Definitions.Capitalized terms not otherwise defined shall have the meanings set forth to inthis Section 1:

“Affiliate” of a Person means any other Person thatdirectly or indirectly, through one or more intermediaries, controls, iscontrolled by, or is under common control with, such Person. The term “control”(including the terms “controlled by” and “under common control with”) means thedirect or indirect power to direct or cause the direction of the management andpolicies of a Person, whether through the ownership of voting securities, bycontract or otherwise/ownership of more than fifty percent (50%) of the votingsecurities of a Person.

“Authorized User” means each of the individualsauthorized to use the Licensed Service pursuant to Section 2 andthe other terms and conditions of this Agreement.

“Documentation” means any and all manuals,instructions and other documents and materials that Company provides or makesavailable to Customer in any form or medium which describe the functionality,components, features or requirements of the Licensed Service, including anyaspect of the installation, configuration, integration, operation, use, supportor maintenance thereof.

“Intellectual Property Rights” means any and allregistered and unregistered rights granted, applied for or otherwise now orhereafter in existence under or related to any patent, copyright, trademark,trade secret, database protection or other intellectual property rights laws,and all similar or equivalent rights or forms of protection, in any part of theworld.

“Law” means any statute, law, ordinance, regulation,rule, code, order, constitution, treaty, common law, judgment, decree or otherrequirement or rule of any federal, state, local or foreign government orpolitical subdivision thereof, or any arbitrator, court or tribunal ofcompetent jurisdiction.

“Licensed Service” ShieldsUp, TheCompany’s web application and related service to facilitate cyber incidentresponse and preparedness.

“Loss” means any and all losses, damages, liabilities,deficiencies, claims, actions, judgments, settlements, interest, awards,penalties, fines, costs or expenses of whatever kind, including reasonableattorneys’ fees and the costs of enforcing any right to indemnificationhereunder and the cost of pursuing any insurance providers.  

“Maintenance Release” means any update, upgrade,release or other adaptation or modification of the Licensed Service, includingany updated Documentation, that Company may provide to Customer and theirAuthorized Users from time to time during the Term, which may contain, amongother things, error corrections, enhancements, improvements or other changes tothe user interface, functionality, compatibility, capabilities, performance,efficiency or quality of the Licensed Service, but does not include any NewVersion.

“New Version” means any new version of the LicensedService that Company may from time to time introduce and market generally as adistinct licensed product (as may be indicated by Company’s designation of anew version number), and which Company may make available to Customer at anadditional cost under a separate written agreement.

“Permitted Use” means use of the Licensed Service byan Authorized User. Permitted Use shall not include the resale or sublicense ofthe Licensed Service or any information or data derived therefrom.

“Person” means an individual, corporation, partnership,joint venture, limited liability entity, governmental authority, unincorporatedorganization, trust, association or other entity.

“Representatives” means, with respect to a Party, thatParty’s and its Affiliates’ employees, officers, directors, consultants,agents, independent contractors, service providers, subcontractors and legaladvisors.

“Stripe”means, payment channel of the Customer where the Company andCustomer agree how much Customer will pay and for how long Customer will payfor Licensed Services.

“Third-Party Materials” means materials andinformation, in any form or medium, that are not proprietary to Company,including any third-party: (a) documents, data, content or specifications; (b)software, hardware or other products, facilities, equipment or devices; and (c)accessories, components, parts or features of any of the foregoing.

2.                  License.

2.1              License Grant. Subject to the terms and conditionsof this Agreement, and conditioned on Customer’s and its Authorized Users’compliance therewith, Company hereby grants to each Authorized User anon-exclusive, non-sublicensable and non-transferable, limited license to usethe Licensed Service and Documentation solely for the Permitted Use during theTerm.

2.2              Use.Any copy or reproduction of the Licensed Service made by Customer: (a) willremain the exclusive property of Company; (b) be subject to the terms andconditions of this Agreement; and (c) must include all copyright or otherIntellectual Property Rights notices contained in the original.

3.                  Use Restrictions.Except as this Agreement expressly permits, Customer shall not, and shall notpermit any other Person to:

(a)       copythe Licensed Service, in whole or in part;

(b)       modify, correct, adapt, translate,enhance or otherwise prepare derivative works or improvements of any LicensedService;

(c)       rent,lease, lend, sell, sublicense, assign, distribute, publish, transfer orotherwise make available the Licensed Service to any Person, including on or inconnection with the internet or any time-sharing, service bureau, software as aservice, cloud or other technology or service;

(d)       reverse engineer, disassemble,decompile, decode or adapt the Licensed Service, or otherwise attempt to deriveor gain access to the source code of the Licensed Service, in whole or in part;

(e)       bypassor breach any security device or protection used for or contained in the LicensedService or Documentation;

(f)       remove,delete, efface, alter, obscure, translate, combine, supplement or otherwisechange any trademarks, terms of the Documentation, warranties, disclaimers, orIntellectual Property Rights, proprietary rights or other symbols, notices,marks or serial numbers on or relating to any copy of the Licensed Service orDocumentation;

(g)       use the Licensed Service in any manneror for any purpose that infringes, misappropriates or otherwise violates anyIntellectual Property Right or other right of any Person, or that violates anyapplicable Law;

(h)       developing, using or providing acompeting software product or service; or (iii) any other purpose that is to Company’sdetriment or commercial disadvantage;

(i)        usethe Licensed Service or Documentation other than for the Permitted Use or inany manner or for any purpose or application not expressly permitted by thisAgreement; or

(j)        in any way thatviolates any applicable federal, state, local and international law orregulation;

(k)      for the purposeof exploiting, harming or attempting to exploit or harm others in any way byexposing them to inappropriate content, asking for personal information orotherwise;

(l)        to threaten,harass, or otherwise inappropriately abuse the Service, its employees,partners, agents, subcontractors, Agents, or others;

(m)     To impersonate or attempt toimpersonate any other person or entity;

(n)       to “spam,” gather or attempt to gatherpersonal information belonging to users or others for the purposes of spamming,marketing, selling to third parties, or otherwise abusing the Licensed Serviceor its users;

(o)      to engage in anyother conduct that restricts or inhibits anyone’s use or enjoyment of theServices, or which, as determined by us, may harm the Licensed Service or any usersof the Service or expose them to liability; or

(p)      to otherwiseattempt to gain access to the phone system or backend data or otherwiseinterfere with the proper working of the Service.

4.                  Obligations of Company.

4.1              Provision ofServices. In exchange forthe License Fees set out via Stripe, Company agrees to provide access to theLicensed Services to the Customer and the number of Authorized Users set out onStripe hereto. Onboarding onto the Licensed Services shall be done inaccordance with the Onboarding Plan agreed to via email with Company.

4.2              Data Security. Company shall maintain, protect, and use allPersonal Information (as that term is defined in the Privacy Policy) inaccordance with the Company Privacy Policy. Any Personal Information receivedfrom Customer about or on behalf of an Authorized User shall be used solely foronboarding the Authorized User onto the Licensed Service or the continuedprovision of the Licensed Services.

5.                  Fees and Payment.

5.1              License Fees. In consideration of the rightsgranted to Customer under this Agreement, Customer shall pay to Company thelicense fees set forth on Stripe in accordance the terms therewith and theterms of this Section 4. Ifthe Term is renewed for any Renewal Term(s) pursuant to Section 8.2, Customershall pay the then-current standard license fees that Customer charges for the LicensedService during the applicable Renewal Term. License Fees shall be payable asset out on the Stripe. Customer agrees to maintain a current form of payment onfile with Company for direct billing (the “PaymentMethod”. Customer authorizes Company to charge the Payment Method for theLicense Fees due hereunder in accordance with the payment schedule.

5.2              Taxes. All License Fees and other amountspayable by Customer under this Agreement are exclusive of taxes and similarassessments.  Without limiting theforegoing, Customer is responsible for all sales, service, use and excisetaxes, and any other similar taxes, duties and charges of any kind imposed byany federal, state or local governmental or regulatory authority on any amountspayable by Customer hereunder, other than any taxes imposed on Company’sincome.

5.3              Late Payment. If Customer fails to make anypayment when due then, in addition to all other remedies that may be availableto Company:

(a)       Companymay charge interest on the past due amount at the rate of 1.5% per monthcalculated daily and compounded monthly or, if lower, the highest ratepermitted under applicable Law;

(b)       Customer shall reimburse Company forall reasonable costs incurred by Company in collecting any late payment ofamounts due or related interest, including attorneys’ fees, court costs andcollection agency fees; and

(c)       ifsuch failure continues for 15 days following written notice thereof, Companymay: (i) disable Customer’s use or access of the Licensed Service (including bymeans of a disabling code, technology or device); (ii) withhold, suspend orrevoke its grant of a license hereunder; and/or (iii) terminate this Agreement.

5.4              No Deductions or Setoffs. All amounts payable to Company underthis Agreement shall be paid by Customer to Company in full without any setoff,recoupment, counterclaim, deduction, debit or withholding for any reason (otherthan any deduction or withholding of tax as may be required by applicable Law).

6.                  Security Measures.The Licensed Service may contain technological measures designed to preventunauthorized or illegal use of the Licensed Service. Customer acknowledges andagrees that: (a) Company may use these and other lawful measures to verify Customer’scompliance with the terms of this Agreement and enforce Company’s rights,including all Intellectual Property Rights, in and to the Licensed Service; (b)Company may deny any individual access to and/or use of the Licensed Service ifCompany, in its sole discretion, believes that person’s use of the LicensedService would violate any provision of this Agreement, regardless of whether Customerdesignated that person as an Authorized User; and (c) Company and itsRepresentatives may collect, maintain, process and use diagnostic, technical,usage and related information, including information about Customer’scomputers, systems and software, that Company may gather periodically toimprove the performance of the Licensed Service or develop MaintenanceReleases. This information will be treated in accordance with Company’s privacypolicy, as amended from time to time, which can be viewed on Company’swebsite.

7.                  Intellectual Property Rights.

7.1              Intellectual Property Ownership. Customer acknowledgesand agrees that:

(a)       theLicensed Service and Documentation are licensed, not sold, to Customer by Companyand Customer does not and will not have or acquire under or in connection withthis Agreement any ownership interest in the Licensed Service or Documentation,or in any related Intellectual Property Rights;

(b)       Company is and will remain the soleand exclusive owner of all right, title and interest in and to the LicensedService and Documentation, including all Intellectual Property Rights relatingthereto, subject only to the limited license granted to Customer under thisAgreement; and

(c)       Customerhereby unconditionally and irrevocably assigns to Company or Company’sdesignee, its entire right, title and interest in and to any IntellectualProperty Rights that Customer may now or hereafter have in or relating to the LicensedService or Documentation (including any rights in derivative works or patentimprovements relating to either of them), whether held or acquired by operationof law, contract, assignment or otherwise.

7.2              Customer Cooperation and Notice of Infringement. Customershall, during the Term:

(a)       safeguardthe Licensed Service and Documentation (including all copies thereof) frominfringement, misappropriation, theft, misuse or unauthorized access;

(b)       at Company’s expense, take all suchsteps as Company may reasonably require to assist Company in maintaining thevalidity, enforceability and Company’s ownership of the Intellectual PropertyRights in the Licensed Service and Documentation;

(c)       promptlynotify Company in writing if Customer becomes aware of:

(i)        anyactual or suspected infringement, misappropriation or other violation of Company’sIntellectual Property Rights in or relating to the Licensed Service orDocumentation; or

(ii)      anyclaim that the Licensed Service or Documentation, including any production,use, marketing, sale or other disposition of the Licensed Service orDocumentation, in whole or in part, infringes, misappropriates or otherwiseviolates the Intellectual Property Rights or other rights of any Person; and

(d)       fully cooperate with and assist Companyin all reasonable ways in the conduct of any claim, suit, action or proceeding(each, an “Action”) by Company to prevent or abateany actual or threatened infringement, misappropriation or violation of Company’srights in, and to attempt to resolve any claims relating to, the LicensedService or Documentation.

7.3              No Implied Rights. Except for the limited rights andlicenses expressly granted under this Agreement, nothing in this Agreementgrants, by implication, waiver, estoppel or otherwise, to Customer or any thirdparty any Intellectual Property Rights or other right, title, or interest in orto any of the Licensed Service or Documentation.

8.                  Term and Termination.

8.1              Initial Term.The initial term of this Agreement commences as of the Start Date and willcontinue in effect for the initial term noted in Stripe (the “Initial Term”).

8.2              Renewal Term.This Agreement will automatically renew for additional successive terms of thesame length as the Initial Term unless earlier terminated pursuant to any ofthe Agreement’s express provisions or either Party gives the other Partywritten notice of non-renewal at least thirty (30) days prior to the expirationof the then-current term (each a “Renewal Term” and,collectively, together with the Initial Term, the “Term”).

8.3              Termination.This Agreement may be terminated by either Party, effective on writtennotice to the other Party, if the other Party materially breaches thisAgreement and such breach: (i) is incapable of cure; or (ii) being capable ofcure, remains uncured 15 days after the non-breaching Party provides thebreaching Party with written notice of such breach.

8.4              Effect of Termination or Expiration. On the expiration or earliertermination of this Agreement all amounts payable by Customerto Company of any kind hereunder will become immediately payable and due nolater than 10 days after the effective date of the expiration or termination ofthis Agreement. Authorized Users shall be entitled to continue using theLicensed Service, but shall be billed for their own individual use at thebeginning of the next billing period.

8.5              Surviving Terms.The provisions set forth in the following sections, and any other right,obligation or provision under this Agreement that, by its nature, shouldsurvive termination or expiration of this Agreement, will survive anyexpiration or termination of this Agreement: this Section 8.5, Section 1 (Definitions), Section7 (Intellectual Property Rights), Section 9 (Representations and Warranties), for clarity, including Section 9.2 (Disclaimer), Section 10 (Indemnification), Section11 (Limitations of Liability) and Section 13 (Miscellaneous).

9.                  Representations and Warranties.

9.1              Mutual Representations and Warranties. EachParty represents, warrants and covenants to the other Party that it is dulyorganized, validly existing and in good standing as a corporation or otherentity under the Laws of the jurisdiction of its incorporation or otherorganization; it has the full right, power and authority to enter into andperform its obligations and grant the rights, licenses and authorizations itgrants and is required to grant under this Agreement; the execution of thisAgreement by its representative whose signature is set forth at the end of thisAgreement has been duly authorized by all necessary corporate or organizationalaction of such Party; and when executed and delivered by both Parties, thisAgreement will constitute the legal, valid and binding obligation of suchParty, enforceable against such Party in accordance with its terms.

9.2              DISCLAIMER OF WARRANTIES. ALL LICENSED SERVICES, DOCUMENTATION AND OTHER PRODUCTS,INFORMATION, MATERIALS AND SERVICES PROVIDED BY COMPANY ARE PROVIDED “AS IS.” COMPANYHEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER(INCLUDING ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADEPRACTICE), AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OFMERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.WITHOUT LIMITING THE FOREGOING, COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE LICENSEDSERVICE OR DOCUMENTATION, OR ANY OTHER COMPANY OR THIRD-PARTY GOODS, SERVICES,TECHNOLOGIES OR MATERIALS (INCLUDING ANY SOFTWARE OR HARDWARE), OR ANY PRODUCTSOR RESULTS OF THE USE OF ANY OF THEM, WILL MEET CUSTOMER’S OR OTHER PERSONS’REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BECOMPATIBLE OR WORK WITH ANY OTHER GOODS, SERVICES, TECHNOLOGIES OR MATERIALS(INCLUDING ANY SOFTWARE, HARDWARE, SYSTEM OR NETWORK), OR BE SECURE, ACCURATE,COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY MATERIALS AREPROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY OFTHEM IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OFSUCH THIRD-PARTY MATERIALS.

10.              Indemnification.

10.1          Company Indemnification. Company shall indemnify, defend and hold harmless Customerand Customer’s officers, directors, employees, agents, successors and permittedassigns (each, including Customer, a “Customer Indemnitee”)from and against any and all Losses incurred by the Customer Indemnitee arisingout of or relating to any Action by a third party (other than an Affiliate of aCustomer Indemnitee) to the extent that such Losses arise from any allegationin such Action that the Licensed Service, or any use of the Licensed Service,in accordance with this Agreement (including the Documentation) infringes anyIntellectual Property Right of any third party.

10.2          Customer Indemnification. Customer shall indemnify, defend and hold harmless Companyand its Affiliates, and each of its and their respective officers, directors,employees, agents, subcontractors, successors and assigns (each, including Company,a “Company Indemnitee”) from and against any and allLosses incurred by the Company Indemnitee in connection with any Action by athird party (other than an Affiliate of a Company Indemnitee) to the extent thatsuch Losses arise out of or relate to any allegation:

(a)       thatany Intellectual Property Right or other right of any Person, or any Law, is orwill be infringed, misappropriated or otherwise violated by any:

(i)        useor combination of the Licensed Service by or on behalf of Customer or any ofits Representatives with any hardware, software, system, network, service orother matter whatsoever that is neither provided by Company nor authorized by Companyin this Agreement and the Documentation or otherwise in writing; and

(ii)      information,materials or technology or other matter whatsoever directly or indirectlyprovided by Customer or directed by Customer to be installed, combined,integrated or used with, as part of, or in connection with the Licensed Serviceor Documentation;

(b)       of or relating to facts that, if true,would constitute a breach by Customer of any representation, warranty, covenantor obligation under this Agreement;

(c)       ofor relating to negligence, abuse, misapplication, misuse or more culpable actor omission (including recklessness or willful misconduct) by or on behalf of Customeror any of its Representatives with respect to the Licensed Service orDocumentation or otherwise in connection with this Agreement; or

(d)       of or relating to use of the LicensedService or Documentation by or on behalf of Customer or any of itsRepresentatives that is outside the purpose, scope or manner of use authorizedby this Agreement or the Documentation, or in any manner contrary to Company’sinstructions.

10.3          Sole Remedy. THIS SECTION 10 SETSFORTH CUSTOMER’S SOLE REMEDIES AND COMPANY’S SOLE LIABILITY AND OBLIGATION FORANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECTMATTER HEREOF (INCLUDING THE LICENSED SERVICE AND DOCUMENTATION) INFRINGES,MISAPPROPRIATES OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANYTHIRD PARTY.

11.              Limitations of Liability.

11.1          EXCLUSION OF DAMAGES.IN NO EVENT WILL COMPANY, OR ANY OF ITS SERVICE PROVIDERS OR SUPPLIERS BELIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDERANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDINGNEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY (a) INCREASED COSTS,DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES OR PROFITS, (b) LOSSOF GOODWILL OR REPUTATION, (c) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAYOR RECOVERY OF ANY LICENSED SERVICE, (d) LOSS, DAMAGE, CORRUPTION OR RECOVERYOF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, (e) COST OF REPLACEMENT GOODS ORSERVICES, OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL,ENHANCED OR PUNITIVE DAMAGES, IN EACH CASE REGARDLESS OF WHETHER SUCH PERSONSWERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES ORDAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANYAGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

11.2          CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF COMPANYAND ITS SUPPLIERS AND SERVICE PROVIDERS ARISING OUT OF OR RELATED TO THISAGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT(INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLETHEORY, EXCEED  THE TOTAL AMOUNTS PAIDAND AMOUNTS ACCRUED BUT NOT YET PAID TO COMPANY UNDER THIS AGREEMENT IN THE 12MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOINGLIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

12.              Force Majeure.

12.1          No Breach or Default.In no event will either Party be liable or responsible to the other Party, orbe deemed to have defaulted under or breached this Agreement, for any failureor delay in fulfilling or performing any term of this Agreement, (except forany payment obligation), when and to the extent such failure or delay is causedby any circumstances beyond such Party’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire,earthquake or explosion, war, terrorism, invasion, riot or other civil unrest,embargoes or blockades in effect on or after the date of this Agreement,national or regional emergency, strikes, labor stoppages or slowdowns or otherindustrial disturbances, passage of Law or any action taken by a governmental orpublic authority, including imposing an export or import restriction, quota orother restriction or prohibition or any complete or partial governmentshutdown, or national or regional shortage of adequate power ortelecommunications or transportation. Either Party may terminate this Agreementif a Force Majeure Event continues substantially uninterrupted for a period of30 days or more.

12.2          Affected Party Obligations. In the event of anyfailure or delay caused by a Force Majeure Event, the affected Party shall giveprompt written notice to the other Party stating the period of time theoccurrence is expected to continue and use diligent efforts to end the failureor delay and minimize the effects of such Force Majeure Event.

13.              Miscellaneous.

13.1          Further Assurances. On a Party’s reasonable request, theother Party shall, at the requesting Party’s sole cost and expense, execute anddeliver all such documents and instruments, and take all such further actions,as may be necessary to give full effect to this Agreement.

13.2          Relationship of the Parties. The relationship betweenthe parties is that of independent contractors. Nothing contained in thisAgreement shall be construed as creating any agency, partnership, joint ventureor other form of joint enterprise, employment or fiduciary relationship betweenthe parties, and neither party shall have authority to contract for or bind theother party in any manner whatsoever.

13.3          Public Announcements. Neither Party shall use the otherParty’s trademarks, service marks, trade names, logos, domain names or otherindicia of source, association or sponsorship, in each case, without the priorwritten consent of the other Party, provided, however, that Company may,without Customer’s consent, include Customer’s name and/or other indicia in itslists of Company’s current and/or, as the case may be, former customers of Companyin promotional and marketing materials.

13.4          Notices. Anynotice, request, consent, claim, demand, waiver or other communication underthis Agreement will have legal effect only if in writing and addressed to aparty at the address listed on their website (or to such other address or suchother person that such addressee party may designate from time to time inaccordance with this Section 13.5). Notices sent in accordance with thisSection 13.5 willbe deemed effectively given: (a) when received, if delivered by hand, withsigned confirmation of receipt; (b) when received, if sent by a nationallyrecognized overnight courier, signature required; (c) when sent, if by email,(with confirmation of transmission), if sent during the addressee’s normalbusiness hours, and on the next business day, if sent after the addressee’snormal business hours; and (d) on the third day after the date mailed bycertified or registered mail, return receipt requested, postage prepaid.

13.5          Headings. The headings in this Agreement arefor reference only and do not affect the interpretation of this Agreement.

13.6          Entire Agreement. This Agreement, together with anyother documents incorporated herein by reference, constitutes the sole andentire agreement of the parties with respect to the subject matter of thisAgreement and supersedes all prior and contemporaneous understandings,agreements, representations and warranties, both written and oral, with respectto such subject matter.

13.7          Assignment. Customershall not assign or otherwise transfer any of its rights, or delegate orotherwise transfer any of its obligations or performance, under this Agreementwithout Company’s prior written consent. Any purported assignment, delegationor transfer in violation of this Section13.8 is void. This Agreement is binding on and inures to thebenefit of the parties hereto and their respective permitted successors andassigns.

13.8          No Third-party Beneficiaries. This Agreement is forthe sole benefit of the Parties hereto and their respective permittedsuccessors and permitted assigns and nothing herein, express or implied, isintended to or shall confer on any other Person any legal or equitable right,benefit or remedy of any nature whatsoever under or by reason of thisAgreement.

13.9          Amendment and Modification; Waiver. No amendmentto or modification of or rescission, termination or discharge of this Agreementis effective unless it is in writing and signed by an authorized representativeof each Party. No waiver by any Party of any of the provisions hereof shall beeffective unless explicitly set forth in writing and signed by the Party sowaiving. Except as otherwise set forth in this Agreement, no failure toexercise, or delay in exercising, any rights, remedy, power or privilegearising from this Agreement shall operate or be construed as a waiver thereof;nor shall any single or partial exercise of any right, remedy, power orprivilege hereunder preclude any other or further exercise thereof or theexercise of any other right, remedy, power or privilege.

13.10       Severability. If any provision of this Agreementis invalid, illegal or unenforceable in any jurisdiction, such invalidity,illegality or unenforceability shall not affect any other term or provision ofthis Agreement or invalidate or render unenforceable such term or provision inany other jurisdiction. On such determination that any term or other provisionis invalid, illegal or unenforceable, the Parties hereto shall negotiate ingood faith to modify this Agreement so as to effect the original intent of theParties as closely as possible in a mutually acceptable manner in order thatthe transactions contemplated hereby be consummated as originally contemplatedto the greatest extent possible.

13.11       Governing Law; Submission to Jurisdiction. ThisAgreement is governed by and construed in accordance with the internal laws ofthe State of New York without giving effect to any of that state’s conflict of lawsprovisions or rules. Any legal suit, action or proceeding arising out of orrelated to this Agreement or the licenses granted hereunder will be institutedexclusively]in the state or federal courts of the United States located in NewYork City, Kings County, and each Party irrevocably submits to the exclusivejurisdiction of such courts in any such suit, action or proceeding. Service ofprocess, summons, notice or other document by mail to such Party’s address setforth herein will be effective service of process for any suit, action or otherproceeding brought in any such court.

13.12       Waiver of Jury Trial. Each Party irrevocably andunconditionally waives any right it may have to a trial by jury in respect ofany legal action arising out of or relating to this Agreement or thetransactions contemplated hereby.

13.13       Equitable Remedies. Each Party acknowledges and agreesthat a breach or threatened breach by such Party of any of its obligationsunder Section 3 (UseRestrictions), Section 7(Intellectual Property Rights) or Section10(Indemnification) of this Agreement would cause the other Party irreparableharm for which monetary damages would not be an adequate remedy and that, inthe event of such breach or threatened breach, the other Party will be entitledto equitable relief, including in a restraining order, an injunction, specificperformance and any other relief that may be available from any court ofcompetent jurisdiction, without any requirement to post a bond or othersecurity, or to prove actual damages or that monetary damages are not anadequate remedy. Such remedies are not exclusive and are in addition to allother remedies that may be available at law, in equity or otherwise.

 

 

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