Terms of Service, Software License & Channel Partner Subscription Agreement
TERMS OF SERVICE
Last Updated April 2, 2020
These Website Standard Terms and Conditions written on this webpage shall manage your use of this website. These Terms will be applied fully and affect to your use of this Website. By using this Website, you agreed to accept all terms and conditions written in here. You must not use this Website if you disagree with any of these Website Standard Terms and Conditions.
Minors or people below 18 years old are not allowed to use this Website.
- Intellectual Property Rights
Other than the content you own, under these Terms, XeroDefense and/or its licensors own all the intellectual property rights and materials contained in this Website.
You are granted limited license only for purposes of viewing the material contained on this Website.
You are specifically restricted from all of the following
- publishing any Website material in any other media;
- selling, sublicensing and/or otherwise commercializing any Website material;
- publicly performing and/or showing any Website material;
- using this Website in any way that is or may be damaging to this Website;
- using this Website in any way that impacts user access to this Website;
- using this Website contrary to applicable laws and regulations, or in any way may cause harm to the Website, or to any person or business entity;
- engaging in any data mining, data harvesting, data extracting or any other similar activity in relation to this Website;
- using this Website to engage in any advertising or marketing.
Certain areas of this Website are restricted from being access by you and XeroDefense may further restrict access by you to any areas of this Website, at any time, in absolute discretion. Any user ID and password you may have for this Website are confidential and you must maintain confidentiality as well.
- Your Content
In these Website Standard Terms and Conditions, Your Content shall mean any audio, video text, images or other material you choose to display on this Website. By displaying Your Content, you grant XeroDefense a non-exclusive, worldwide irrevocable, sub licensable license to use, reproduce, adapt, publish, translate and distribute it in any and all media.
Your Content must be your own and must not be invading any third-party’s rights. XeroDefense reserves the right to remove any of Your Content from this Website at any time without notice.
- No warranties
This Website is provided as is, with all faults, and XeroDefense express no representations or warranties, of any kind related to this Website or the materials contained on this Website. Also, nothing contained on this Website shall be interpreted as advising you.
- Limitation of liability
In no event shall XeroDefense, nor any of its officers, directors and employees, shall be held liable for anything arising out of or in any way connected with your use of this Website whether such liability is under contract. XeroDefense, including its officers, directors and employees shall not be held liable for any indirect, consequential or special liability arising out of or in any way related to your use of this Website.
You hereby indemnify to the fullest extent XeroDefense from and against any and/or all liabilities, costs, demands, causes of action, damages and expenses arising in any way related to your breach of any of the provisions of these Terms.
If any provision of these Terms is found to be invalid under any applicable law, such provisions shall be deleted without affecting the remaining provisions herein.
- Variation of Terms
XeroDefense is permitted to revise these Terms at any time as it sees fit, and by using this Website you are expected to review these Terms on a regular basis.
XeroDefense is allowed to assign, transfer, and subcontract its rights and/or obligations under these Terms without any notification. However, you are not allowed to assign, transfer, or subcontract any of your rights and/or obligations under these Terms.
- Entire Agreement
These Terms constitute the entire agreement between XeroDefense and you in relation to your use of this Website, and supersede all prior agreements and understandings.
SOFTWARE LICENSE AGREEMENT
Last Updated April 2, 2020
IMPORTANT: THIS SOFTWARE END-USER LICENSE AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU (EITHER INDIVIDUALLY OR COLLECTIVELY ON BEHALF OF YOUR BUSINESS ENTITY) AND AEONIAN VENTURES LLC (DBA XERODEFENSE). READ IT CAREFULLY BEFORE COMPLETING THE INSTALLATION PROCESS AND USING THE SOFTWARE. AMONG OTHER PROVISIONS, IT PROVIDES A LICENSE TO USE THE SOFTWARE AND CONTAINS TERMINATION AND WARRANTY INFORMATION AND LIABILITY DISCLAIMERS. BY INSTALLING AND USING THE SOFTWARE, YOU CONFIRM YOUR ACCEPTANCE OF THE SOFTWARE AND YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, THEN DO NOT INSTALL THE SOFTWARE AND RETURN THE SOFTWARE TO YOUR WEBSITE OR PLACE OF PURCHASE FOR A FULL REFUND. CONTINUED USE OF THIS SOFTWARE SIGNIFIES YOUR CONTINUED ACCEPTANCE OF THESE TERMS AND ANY FUTURE CHANGES TO THEM.
1.1 “Activated” has the meaning given in Section 2.4.2.
1.2 “Agreement” means both the EULA and the Pricing and Term Agreement.
1.3 “Applicable Law” means applicable international, federal, state or local laws, statutes, ordinances, regulations or court orders.
1.4 “Beta Version” means any version of the Software released by AEONIAN VENTURES for testing as determined by AEONIAN VENTURES in its sole discretion.
1.5 “Effective Date” has the meaning given in the Pricing and Term Agreement.
1.6 “EULA” means this End-User License Agreement.
1.7 “Intellectual Property Rights” means trade secret rights, rights in know-how, moral rights, copyrights, patents, trademarks (and the goodwill represented thereby), and similar rights of any type under the laws of any governmental authority, domestic or foreign, including all applications for and registrations of any of the foregoing.
1.8 “Pricing and Term Agreement” means, as applicable, (a) the Pricing and Term Agreement entered into between You and AEONIAN VENTURES in connection with the license of the Software which sets forth (among other things) pricing, term and payment provisions of this Agreement; (b) the pricing and payment provisions located at https://aeonian.services (or such other URL as AEONIAN VENTURES may designate from time to time); and/or (c) the pricing and payment provisions of any agreement between You and a AEONIAN VENTURES reseller (or other third party authorized to grant You the license) pursuant to which You obtained a license to use the Software. The Pricing and Term Agreement is hereby incorporated by reference and made a part of this Agreement as though fully set forth herein.
1.9 “Software” means the AEONIAN VENTURES software program(s) supplied by AEONIAN VENTURES together with this Agreement, and corresponding documentation, source code, object code, Updates, user interfaces (including without limitation any web-based interfaces), printed materials and online or electronic documentation, excluding any third party components.
1.10 “Term” means the term of this Agreement as set forth by the term of the license obtained by You (a) in connection with the Pricing and Term Agreement; or (b) from a AEONIAN VENTURES reseller or other third party authorized to grant You the license.
1.11 “Territory” means the world, except to the extent that use or distribution of the Software in certain countries or regions would cause either party to violate Section 9.13 (Export Controls).
1.12 “Trademarks” means all domestic and international trademarks, service marks, logos, trade names, trade dress, including all goodwill represented by each of the foregoing, whether registered or unregistered, of AEONIAN VENTURES including without limitation, AEONIAN VENTURES and the AEONIAN VENTURES logo. AEONIAN VENTURES may add to the foregoing nonexclusive list of Trademarks in its sole discretion from time to time.
1.13 “Third Party Users” and “Licensee” both mean, as applicable, (i) an authorized third-party end user of the Software who obtained a Software License from You, or (ii) You.
1.14 “Updates” means any bug fixes, patches and other modifications of the Software provided to You by AEONIAN VENTURES.
1.15 “Virtual Private Server” means a virtual server operating on a single physical server upon which multiple virtual servers may operate.
1.16 “You” or “Your” means or refers to the individual or entity entering into this Agreement with AEONIAN VENTURES, whether or not such terms are capitalized in this Agreement.
1.17 “AEONIAN VENTURES” means AEONIAN VENTURES Limited.
1.18 “AEONIAN VENTURES Anonymous Usage Data” means all data collected by AEONIAN VENTURES in connection with the use of the Software by You or any Third Party Users, including (a) the licensed or unlicensed status of the Software; (b) the source from which the license for the Software was obtained; and (c) information about the hardware upon which the Software is installed including (i) the public IP address, (ii) the operating system, (iii) web server version, (iv) the use of any virtualization technologies on such server, and (v) data utilized to prevent and combat various server attacks by hackers or their hardware, including but not limited to assaults such as spam attacks, brute force attacks, dictionary attacks, phishing, pharming, and the like. Additionally, “AEONIAN VENTURES Anonymous Usage Data” may also include information collected by AEONIAN VENTURES from time to time concerning which features of the Software are most often used in order to improve and make adjustments to the Software, including, but not limited to the number of active modules, PHP version, mySQL version, installed PHP extensions, installed add-on modules, template utilization, and the number of active administrators, domains, servers, and active clients.
1.19 “AEONIAN VENTURES Client Area” means AEONIAN VENTURES’s customer service, license management and Incident tracking system or such successor system as AEONIAN VENTURES may designate from time to time which. Only AEONIAN VENTURES Licensees may access and use the AEONIAN VENTURES Client Area.
2.1 License Grant. During the Term, solely within the Territory and subject to the terms and conditions of this Agreement, AEONIAN VENTURES grants You a limited, non-exclusive, license to (a) install and use the Software and (b) make a single back-up copy of the registered Software for archival purposes. The foregoing license is revocable, non-transferable, non-assignable and non-sub-licensable.
2.2 License Transfers. The Software is licensed only to You. You may not rent, lease, sub-license, sell, assign, pledge, transfer or otherwise dispose of the Software, on a temporary or permanent basis, without the prior written consent of AEONIAN VENTURES Limited. (For the avoidance of doubt, this license is only granted to one person or company and if more than one person or company wishes to use the Software, each user must purchase a separate license).
2.3 Restrictions of Use.
2.3.1 Installation of Software Package. The Software is licensed as a single product and none of the components in the Software may be separated for installation or use.
2.3.2 Single Domain. This Software is licensed to operate on only one domain.
2.3.3 Back-Up Copy. All backup copies must be an exact copy of the original Software. If You make a back-up copy of the Software, such copy must be in machine-readable form and You must reproduce on such copy all Intellectual Property Right notices and any other proprietary legends on the original copy of the Software.
2.3.4 No Derivative Works; Reverse Engineering. You may not alter, merge, modify, prepare derivative works based upon, adapt or translate the Software in any manner whatsoever. Additionally, You may not decompile, reverse engineer, disassemble, or otherwise reduce the Software to any human-readable form, or use the Software to develop any application having the same primary functions as the Software.
2.4 Monitoring of Software.
2.4.1 Audit by AEONIAN VENTURES. You agree that AEONIAN VENTURES may audit Your use of the Software for compliance with this Agreement at any time, upon reasonable notice. You agree to cooperate with AEONIAN VENTURES and any auditors selected by AEONIAN VENTURES to complete the audit including by providing access to any facilities in which the Software is used or stored, including without limitation the facilities which house the hardware upon which the Software is installed. In the event that such audit reveals any use of the Software by You other than in compliance with the terms of this Agreement, You shall reimburse AEONIAN VENTURES for all reasonable expenses related to such audit in addition to any other liabilities You may incur as a result of such noncompliance.
2.4.2 Authentication System. The Software contains technological measures that, working in conjunction with AEONIAN VENTURES computer servers, are designed to prevent unlicensed or illegal use of the Software (collectively, the “Authentication System”). You acknowledge and agree that such Authentication System allows AEONIAN VENTURES to (among other things) (a) monitor use of the Software by You as set forth in Section 2.4.3 (AEONIAN VENTURES Anonymous Usage Data); (b) suspend or disable access to the Software in whole or in part in the event of a breach of this Agreement; and (c) terminate use of the Software upon the expiration or termination of this Agreement. You agree not to thwart, interfere with, circumvent or block the operation of any aspect of the Authentication System, including any communications between the Software and AEONIAN VENTURES’s computer servers. For the avoidance of doubt, the Software will not operate unless AEONIAN VENTURES from time to time verifies the Software using the Authentication System which requires the exchange of information between You and AEONIAN VENTURES over the Internet.
2.4.3 AEONIAN VENTURES Anonymous Usage Data. You agree that, without further notice to You, AEONIAN VENTURES may use technological means to (a) monitor use of the Software as may be necessary to monitor for compliance with the terms of this Agreement; and (b) collect AEONIAN VENTURES Anonymous Usage Data. AEONIAN VENTURES reserves the right to copy, access, store, disclose and use AEONIAN VENTURES Usage Data indefinitely in its sole discretion; provided, however, that in the event that AEONIAN VENTURES collects information concerning which features of the Software are most often used by You, AEONIAN VENTURES will remove personally identifiable information (if any) from such data and copy, access, store, disclose and use such data solely for the purpose of improving the Software.
2.6 Updates. The Software may automatically download and install updates from time to time from AEONIAN VENTURES. These updates are designed to improve, enhance and further develop the Software and may take the form of bug fixes, enhanced functions, new software modules, completely new versions and additional products and services offered through or from the Software. You agree to receive such updates (and permit AEONIAN VENTURES to deliver these to You) as a condition to Your use of the Software.
2.7 License Exchange. You agree that this Agreement shall supersede any prior End-User License Agreement and between You and AEONIAN VENTURES applicable to the Software and that such prior End-User License Agreement is hereby terminated if (a) You previously purchased a license for the Software and are now purchasing a new license for the Software so that You may obtain additional technical support or updates during the Term of this Agreement; or (b) the copy of the Software You licensed with this Agreement is an upgrade to an earlier version of the Software. You may not continue to use the earlier version of the Software or transfer it to another person or entity.
3. Intellectual Property Rights.
3.1 Ownership. AEONIAN VENTURES owns all right, title and interest, including all Intellectual Property Rights, in and to, (a) the Software; (b) the Trademarks; (c) AEONIAN VENTURES Anonymous Usage Data; and (d) any and all Submissions (collectively, “AEONIAN VENTURES IP Rights”).
3.2 Trademarks; Domain Names. This Agreement does not authorize You to use the Trademarks. If You wish to use the Trademarks, You must obtain a written license to use the Trademarks from AEONIAN VENTURES. Additionally, You will not (a) assert any Intellectual Property Right in the Trademarks or in any element, derivation, adaptation, variation or name thereof; (b) contest the validity of any of the Trademarks; (c) contest AEONIAN VENTURES’s ownership of any of the Trademarks; or (d) in any jurisdiction, adopt, use, register, or apply for registration of, whether as a corporate name, trademark, service mark or other indication of origin, or as a domain name or sub-domain name, any trademarks, or any word, symbol or device, or any combination confusingly similar to, or which incorporates in whole or in part, any of the Trademarks.
3.3 No Implied License or Ownership. Nothing in this Agreement or the performance thereof, or that might otherwise be implied by law, will operate to grant You any right, title or interest, implied or otherwise, in or to the AEONIAN VENTURES IP Rights.
3.4 No Contest. You acknowledge and agree that the AEONIAN VENTURES IP Rights are and shall remain the sole and exclusive property of AEONIAN VENTURES. You agree that You shall never oppose, seek to cancel, or otherwise contest AEONIAN VENTURES’s ownership of the AEONIAN VENTURES IP Rights or act in any manner that would or might conflict with or compromise AEONIAN VENTURES’s ownership of the AEONIAN VENTURES IP Rights, or similarly affect the value of the AEONIAN VENTURES IP Rights. Whenever requested by AEONIAN VENTURES, You shall execute such documents as AEONIAN VENTURES may deem necessary or appropriate to confirm, maintain or perfect AEONIAN VENTURES’s ownership of the AEONIAN VENTURES IP Rights. In the event AEONIAN VENTURES is unable, after using its reasonable endeavours (which shall not require AEONIAN VENTURES to incur any costs), to secure Your signature on any document or documents needed to apply for or to confirm, maintain or perfect AEONIAN VENTURES’s ownership of the AEONIAN VENTURES IP Rights for any other reason whatsoever, You hereby irrevocably designate and appoint AEONIAN VENTURES as Your duly authorized attorney-in-fact, to act for and on Your behalf and stead to execute and sign any document or documents and to do all other lawfully permitted acts to confirm, maintain or perfect AEONIAN VENTURES’s ownership of the AEONIAN VENTURES IP Rights with the same legal force and effect as if executed by You. In the event You become aware that any third party is, or may be, infringing the AEONIAN VENTURES IP Rights, You agree to notify AEONIAN VENTURES of such fact.
3.5 Proprietary Notices. Third party trademarks, trade names, product names and logos included in the Software may be the trademarks or registered trademarks of their respective owners. You may not remove or alter any trademark, trade names, product names, logo, copyright or other proprietary notices, legends, symbols or labels in the Software.
3.6 Submissions. With respect to any feedback, suggestions or ideas (“Submissions”) that You submit to AEONIAN VENTURES concerning the Software, or any of AEONIAN VENTURES’s products or services, You agree that: (a) Your Submissions will automatically become the property of AEONIAN VENTURES, without any compensation to You; (b) AEONIAN VENTURES may use or redistribute the Submissions for any purpose and in any way; (c) AEONIAN VENTURES is not obligated to review any Submissions; and (d) AEONIAN VENTURES is not obligated to keep any Submissions confidential. In addition, any illegal, lewd, abusive, profane or otherwise disturbing submissions by You shall constitute a material breach of this Agreement giving rise to AEONIAN VENTURES’s termination rights in Section 5.2.
4. Payments & Refunds.
4.1 Payments. As a condition of the license granted to You pursuant to this EULA, You shall pay AEONIAN VENTURES the amount(s) set forth in Your Pricing and Term Agreement in accordance with the payment terms contained therein.
4.2 Refunds. Refunds are only issued for software failure. Refunds are not issued for server failure/issues, lack of features or if Your hardware does not meet the Software Requirements. Refunds are determined on individual circumstances and only issued once AEONIAN VENTURES’s technical staff determines that AEONIAN VENTURES has a fault causing it to not run on Your hardware. Installation charges are not refundable under any circumstances. Refunds are not available after 1 month from purchase date.
5 Term and Termination.
5.1 Term. This Agreement shall be effective on the Effective Date and shall automatically expire at the end of the Term.
5.2 Termination. AEONIAN VENTURES may terminate this Agreement (a) in the event of Your breach of this Agreement (or a sublicensee’s breach of a provision of a Third Party User’s agreement relating to the Software or AEONIAN VENTURES) upon 30 days’ notice to You if such breach remains uncured after the expiration of the 30 day notice period; (b) as set forth in Section 2.2; or (c) immediately without notice in the event of Your (or Your sublicensee’s material breach of this Agreement. You acknowledge and agree that any breach by You (or any Third Party User) of the following provisions of the Agreement or any related provisions of a Third Party User’s agreement relating to AEONIAN VENTURES or the Software shall each constitute a material breach: (i) use of the Software in excess of the license grant in Section 2.1 (License Grant); (ii) any purported or attempted assignment, transfer, sale or other disposition or delegation of the Software in violation of Section 2 (License) or Section 9.8 (Assignment); (iii) any violation of Section 2.3 (Restrictions of Use) including without limitation Section 2.3.4 (No Derivative Works; Reverse Engineering); (iv) any violation of Section 2.4 (Monitoring of Software) including without limitation any attempt, whether successful or not, to thwart, interfere with, circumvent or block the operation of any aspect of AEONIAN VENTURES’s monitoring of the Software; (v) any conduct inconsistent with the AEONIAN VENTURES IP Rights as set forth in Section 3 (Intellectual Property Rights); (vi) any breach of Section 4 (Payment); and (vii) any breach of Your warranties under Section 6.1 (Mutual Warranties). Additionally, a material breach by You of any agreement or contract between You and AEONIAN VENTURES, including without limitation a breach of AEONIAN VENTURES’s Trademark Usage Policy, any applicable EULA, or the Technical Support Agreement shall be deemed a material breach of this Agreement and shall give rise to AEONIAN VENTURES’s right to terminate as set forth in this Section 5.2. The foregoing list of material breaches is a nonexclusive list.
5.3 Effect of Termination. Upon the expiration or termination of this Agreement for any reason, (a) You must destroy all copies of the Software, including any back-up copy; (b) You must uninstall or delete the Software from the Licensed Server; and (c) AEONIAN VENTURES may without notice and in its sole discretion terminate, suspend or disable access to the Software by You or any Third Party User.
5.4 Survival. Sections 1 (Definitions), 2.4 (Monitoring of Software), 3 (Intellectual Property Rights), 4 (Payments), 5 (Term and Termination), 6.3 (Disclaimer), 7 (Limitation on Liability), 8 (Indemnification) and 9 (Miscellaneous) shall survive the termination or expiration of this Agreement for any reason.
6. Warranties; Disclaimer.
6.1 Mutual Warranties. Each party hereto warrants to the other party that: (a) such party has the full right, power and authority to enter into this Agreement on behalf of itself and to undertake to perform the acts required of it hereunder; (b) the execution of this Agreement by such party, and the performance by such party of its obligations and duties to the extent set forth hereunder, do not and will not violate any agreement to which it is a party or by which it is otherwise bound; (c) when executed and delivered by such party, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its representations, warranties, terms and conditions; and (d) such party will comply with all Applicable Laws related to the use and installation of the Software and the performance of its obligations under this Agreement.
6.2 Limited Warranty. AEONIAN VENTURES warrants that, for a period of ninety days from the date of delivery of the Software, when used with a hardware and software configuration recommended by AEONIAN VENTURES, the Software will perform in substantial conformance with the documentation supplied with the Software. The limited warranty in this Section 6.2 shall not apply (a) if Your version of the Software is a Beta Version; (b) if the Software has been altered in any way by a party other than AEONIAN VENTURES; (c) the Software’s third party components; or (d) if any failure or error arises out of use of the Software with anything other than a AEONIAN VENTURES recommended hardware and software configuration. Any misuse, accident, abuse, modification or misapplication of the Software will void the limited warranty in this Section 6.2.
6.3 Disclaimer. EXCEPT AS SET FORTH IN THE LIMITED WARRANTY OF SECTION 6.2, THE SOFTWARE LICENSED HEREUNDER IS PROVIDED “AS IS” AND AEONIAN VENTURES HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SOFTWARE, ITS THIRD PARTY COMPONENTS, AND ANY DATA ACCESSED THEREFROM, OR THE ACCURACY, TIMELINESS, COMPLETENESS, OR ADEQUACY OF THE SOFTWARE, ITS THIRD PARTY COMPONENTS, AND ANY DATA ACCESSED THEREFROM, INCLUDING THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. AEONIAN VENTURES DOES NOT WARRANT THAT THE SOFTWARE OR ITS THIRD PARTY COMPONENTS ARE ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. IF THE SOFTWARE, ITS THIRD PARTY COMPONENTS, OR ANY DATA ACCESSED THEREFROM IS DEFECTIVE, YOU ASSUME THE SOLE RESPONSIBILITY FOR THE ENTIRE COST OF ALL REPAIR OR INJURY OF ANY KIND, EVEN IF AEONIAN VENTURES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DEFECTS OR DAMAGES.
6.3.1 IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SOFTWARE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF DELIVERY OR THE MINIMUM ALLOWED DURATION UNDER SUCH APPLICABLE LAW.
6.3.2 NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY AEONIAN VENTURES, ITS AFFILIATES, LICENSEES, DEALERS, SUB-LICENSORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED IN SECTION 6.2.
6.3.3 SOME JURISDICTIONS DO NOT ALLOW RESTRICTIONS ON IMPLIED WARRANTIES SO SOME OF THESE LIMITATIONS MAY NOT APPLY TO YOU.
7. Limitation of Liability.
7.1 Lost Profits; Consequential Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AEONIAN VENTURES WILL NOT BE LIABLE FOR ANY LOST PROFITS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, DAMAGES FOR THE INABILITY TO USE EQUIPMENT OR ACCESS DATA, BUSINESS INTERRUPTION, OR FOR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING, WITHOUT LIMITATION, UNDER ANY CONTRACT, NEGLIGENCE OR OTHER TORT THEORY OF LIABILITY) EVEN IF AEONIAN VENTURES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.2 Total Cumulative Liability; Exclusive Remedy. EXCEPT FOR AMOUNTS OWED BY YOU TO AEONIAN VENTURES UNDER SECTION 4, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AEONIAN VENTURES’S AGGREGATE LIABILITY FOR DIRECT DAMAGES, UNDER THIS AGREEMENT (CUMULATIVELY) SHALL BE LIMITED TO THE TOTAL FEES COLLECTED BY AEONIAN VENTURES UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT FOR ANY BREACH OF THE LIMITED WARRANTY OF SECTION 6.2 YOUR SOLE AND EXCLUSIVE REMEDY AND AEONIAN VENTURES’S ENTIRE LIABILITY SHALL BE FOR AEONIAN VENTURES, AT AEONIAN VENTURES’S ELECTION AND WITHIN ITS SOLE DISCRETION, TO USE ITS COMMERCIALLY REASONABLE ENDEAVOURS TO (A) SUPPLY YOU WITH A REPLACEMENT COPY OF THE SOFTWARE THAT SUBSTANTIALLY CONFORMS TO THE DOCUMENTATION INCLUDED WITH THE SOFTWARE; OR (B) REFUND TO YOU YOUR LICENSE FEE FOR THE SOFTWARE; PROVIDED THAT YOU REPORT ANY NON-COMPLIANCE WITH THE LIMITED WARRANTY OF SECTION 6.2 IN WRITING TO AEONIAN VENTURES NO MORE THAN NINETY (90) DAYS FOLLOWING DELIVERY OF THE SOFTWARE TO YOU.
8. Indemnification. You shall indemnify, defend and hold harmless AEONIAN VENTURES and its directors, officers, staff, employees agents, and affiliates and their respective successors, heirs and assigns and affiliates (and their its directors, officers, staff, employees and agents and their respective successors, heirs and assigns) (collectively, the “AEONIAN VENTURES Parties”) from and against any liability, damage, loss or expense (including reasonable lawyers’ fees and expenses of litigation) incurred by or imposed upon the AEONIAN VENTURES Parties or any one of them in connection with any claims, suits, actions, demands or judgments (“Claims”) related directly or indirectly to or arising out of (a) a breach of Your representations, warranties or obligations under this Agreement; (b) in the event that You sublicense the right to use the Software to any Third Party Users pursuant to Section 2.2 (Sublicensing), (c) a breach of a Third Party User’s representations, warranties or obligations under any provisions in a Third Party User’s agreement relating to AEONIAN VENTURES or the Software; and (d) any Claims based upon or arising from any allegation that a Third Party User was harmed due to any termination, suspension or disabling of such user’s access to the Software by AEONIAN VENTURES pursuant to the terms and conditions of this Agreement; provided, however, that in any such case AEONIAN VENTURES or its affiliates, as applicable, (x) provide You with prompt notice of any such claim; (y) permit You to assume and control the defense of such action upon Your written notice to AEONIAN VENTURES of Your intention to indemnify; and (z) upon Your written request, and at no expense to AEONIAN VENTURES or its affiliates, provide to You all available information and assistance reasonably necessary for You to defend such claim. You will not enter into any settlement or compromise of any such claim, which settlement or compromise would result in any liability to the AEONIAN VENTURES Parties, without AEONIAN VENTURES’s prior written consent, which will not unreasonably be withheld. You will pay any and all costs, damages, and expenses, including, but not limited to, reasonable lawyers’ fees and costs awarded against or otherwise incurred by AEONIAN VENTURES or its affiliates in connection with or arising from any such claim.
9.1 Force Majeure. No party will be liable for any failure or delay in performance of any of its obligations hereunder if such delay is due to acts of God, fires, flood, storm, explosions, earthquakes, general Internet outages, acts of war or terrorism, riots, insurrection or intervention of any government or authority; provided, however, that any such delay or failure will be remedied by such party as soon as reasonably possible. Upon the occurrence of a force majeure event, the party unable to perform will, if and as soon as possible, provide written notice to the other parties indicating that a force majeure event occurred and detailing how such force majeure event impacts the performance of its obligations.
9.2 Independent Contractors. It is the intention of the parties that AEONIAN VENTURES and You are, and will be deemed to be, independent contractors with respect to the subject matter of this Agreement, and nothing contained in this Agreement will be deemed or construed in any manner whatsoever as creating any partnership, joint venture, employment, agency, fiduciary or other similar relationship between AEONIAN VENTURES and You.
9.3 Choice of Law; Venue; Jurisdiction. This Agreement and any disputes or claims arising out of or in connection with its subject matter or formation (including non-contractual disputes and claims) are governed by and construed in accordance with the laws of England and Wales. The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes and claims).
9.4 Entire Agreement. This Agreement, together with all Exhibits hereto, represents the entire agreement between the parties with respect to the subject matter hereof and thereof and will supersede all prior agreements and communications of the parties, oral or written.
9.5 Basis of Bargain. Section 6.2 (Limited Warranty), Section 7 (Limitations on Liability; Exclusive Remedies) and Section 8 (Indemnification) are fundamental elements of the basis of the agreement between AEONIAN VENTURES and You and shall inure to the benefit of AEONIAN VENTURES. AEONIAN VENTURES would not be able to provide the Software on an economic basis without such limitations.
9.6 Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability will not affect any other provisions of this Agreement, and this Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained herein.
9.7 Amendment or Modification. This Agreement is subject to change without prior notice from AEONIAN VENTURES. You shall be deemed to have accepted any changes or modifications by Your continuing use of the Software. Additionally, this Agreement may not be amended, modified, or supplemented by You in any manner, except by an instrument in writing signed and agreed to by AEONIAN VENTURES.
9.8 Assignment. This Agreement may not be assigned, transferred, delegated, sold or otherwise disposed of, including without limitation by operation of law, other than as expressly set forth in this Section 9.8. This Agreement may be assigned, transferred, delegated, sold or otherwise disposed of in its entirety: (a) by AEONIAN VENTURES in its sole discretion; (b) by You with the prior written consent of AEONIAN VENTURES; and (c) as set forth in Section 2.2 (License Transfers). In addition, AEONIAN VENTURES may delegate its performance under this Agreement in whole or in part to one or more affiliates, provided that AEONIAN VENTURES will remain liable and responsible for any performance or obligation so delegated. A party’s permitted successors or assignees must agree as a condition precedent to any assignment, transfer or delegation to fully perform all applicable terms and conditions of this Agreement. No party may assign this Agreement to any entity that lacks sufficient assets and resources to continue to perform, to contractually required standards, all assigned obligations for the remainder of the Term. This Agreement will be binding upon and will inure to the benefit of a party’s permitted successors and assigns. Any purported assignment, transfer, delegation, sale or other disposition in contravention of this Section 9.8, including without limitation by operation of law, is null and void.
9.9 Waiver. Any of the provisions of this Agreement may be waived by the party entitled to the benefit thereof. No party will be deemed, by any act or omission, to have waived any of its rights or remedies hereunder unless such waiver is in writing and signed by the waiving party, and then only to the extent specifically set forth in such writing. A waiver with reference to one event will not be construed as continuing or as a bar to or waiver of any right or remedy as to a subsequent event.
9.10 Remedies Cumulative. Except as expressly set forth herein, no remedy conferred upon the parties by this Agreement is intended to be exclusive of any other remedy, and each and every such remedy will be cumulative and will be in addition to any other remedy given hereunder or now or hereafter existing at law or in equity.
9.11 No Third Party Beneficiaries. Except for the provisions of Clause 8 which are intended to be enforceable by the Persons respectively referred to therein (each, a “Beneficiary”) by virtue of the Contracts (Rights of Third Parties) Act 1999, the Parties do not intend that any term of this Agreement should be enforceable, by virtue of the Contracts (Rights of Third Parties) Act 1999, by any person who is not a party to this Agreement (including without limitation any Third Party Users). Notwithstanding the previous sentence, this Agreement may be terminated or varied in any way and at any time by the Parties without the consent of any Beneficiary.
9.12 Notices. All notices or questions relating to this Agreement shall be directed to: AEONIAN VENTURES LLC. 30 N. Gould STE R Sheridan, Wyoming 82801, United States. Any notice required to be given under this Agreement shall be deemed given by AEONIAN VENTURES when sent to You by email, telephone, fax, or mail to the contact information supplied by You to AEONIAN VENTURES in the Pricing and Term Agreement. You may update such information from time to time upon written notice to through the AEONIAN VENTURES Client Area. Any failure by You to provide AEONIAN VENTURES with updated contact information will not invalidate the effectiveness of any notice sent by AEONIAN VENTURES to the contact information previously supplied by You.
9.13 Export Controls. The parties agree to comply fully with all Applicable Laws, or of any foreign government to or from where a party is shipping, to in connection with the import, export or re-export, directly or indirectly, of the Software mentioned in this Agreement.
9.14 Time-Limited Claims. Regardless of any Applicable Law to the contrary, You agree that any claim or cause of action arising out of or related to the Software or this Agreement, must be filed within one year after such claim or cause of action arose or be forever barred.
CHANNEL PARTNER SUBSCRIPTION AGREEMENT
Last Updated April 2, 2020
This Channel Partner Subscription Agreement (“Agreement”) constitutes a contract between Aeonian Ventures LLC. DBA XeroDefense with offices at 30 North Gould Sheridan, Wyoming (“AEONIAN”), and you. Aeonian wishes to provide and Channel Partner wish to have the right to access through you pursuant to the terms of this Agreement, a subscription service. By accepting this agreement below, you agree to be bound by this Agreement. If you are entering into this Agreement on behalf of a company, organization or other entity, you represent that you have such authority to bind such entity and are agreeing to this Agreement on behalf of such entity. If you do not have such authority to enter into this Agreement or do not agree with these terms and conditions, you may not use the Services or act as a Channel Partner of Aeonian.
AEONIAN provides its Channel Partners with the right to offer subscription services, including cyber security website protection, threat monitoring, remediation, and insurance services. Subject to the terms and conditions of this Agreement, AEONIAN agrees to provide the services indicated below and any Order (collectively “Services”) for use by U.S. business entities that who have entered into a Contract with Channel Partner in order to obtain the Services (each a “Subscriber”). For a full description of the Services, please go to https://xerodefense.com. Under this Agreement, Channel Partner is acquiring the right to offer subscriptions to the following Service(s):
XeroDefense Security Bundle & Other Cyber Products Subscription
The term shall be twelve (12) months commencing upon the Effective Date (the “Initial Term”). Either party may choose not to renew this Agreement by providing to the other Party, sixty (60) days prior to any anniversary of the Effective Date, a written notice of termination. Absent such notice, on each anniversary of the Effective Date, the Agreement shall automatically renew for another twelve-month term (each a “Renewal Term”. The Initial Term together with any Renewal Terms is referenced as the “Term”.
Unless otherwise agreed in writing, payment will be made by credit card or ACH monthly in advance. Electronic Invoice will be sent to Principal Contact above unless Billing Contact is identified. Subscription fee calculable as the number of Subscribers active during the month (or any portion thereof) multiplied by the monthly subscription fee one (1) days from the end of the preceding month.
By accepting below, each Party agrees that it has read and understood all of the terms and that it agrees and accepts all of the foregoing:
A. SUBSCRIPTION GRANT.
1. Limited License Grant. Subject to Channel Partner’s compliance with this Agreement, Aeonian grants to Channel Partner a limited, non-exclusive, non-transferable, non-sublicensable, revocable, limited license in the U.S. during the Term to: (i) permit Administrative Users to access the Services to configure them for Subscribers, (ii) offer the Services to qualifying U.S. business entities and enter into Contracts with such entities; (iii) to provision and de-provision accounts and monitor accounts; and (iv) access the Services to provide them to Subscribers solely for use by Subscribers.
2. Use of XeroDefense Mark. Subject to Channel Partner’s compliance with this Agreement, Aeonian grants to Channel Partner a limited, non-exclusive, non-transferable, non-sublicensable, revocable, limited license in the U.S. during the Term to display the XeroDefense name and mark as part of any interface with Subscribers related to the Services (“Interface”) to comply with the obligation in this section. Channel Partner will display the phase “Powered by XeroDefense” above the fold in any graphic user Interface which uses the XeroDefense service or insurance. No other use of the XeroDefense name or mark is permitted.
3. Limitations of Licenses. Channel Partner agrees to keep confidential and to protect the operation and contents of the Services from unauthorized disclosure or use. Channel Partner acknowledges and agrees that the Services and the Alerts and APIs, as well as the related documentation contain certain trade secrets and confidential information of Aeonian and/or its suppliers, and to protect such trade secrets. Channel Partner shall not license, rent, sell, lease, transfer, assign, distribute, display, host, outsource, disclose, or otherwise commercially exploit or make the Service available to any unauthorized user, including but not limited to, by “mirroring” or “framing” any part of the Services.
4. Reservation of Rights. All rights not expressly granted in this Agreement are hereby reserved by Aeonian and its suppliers. As between Channel Partner and Aeonian, Aeonian owns all right, title and interest in and to the Aeonian Technology and Services any copies, modifications, and derivatives thereof, including all related intellectual property rights. Other than as expressly set forth in this Agreement, no license or other rights in the Aeonian Technology and Services are granted to the Channel Partner, and all such rights are hereby expressly reserved
5. The Aeonian Technology, the documentation and the Services are protected by copyright and other intellectual property laws of the United States and other countries and international treaties. Channel Partner agrees that Channel Partner shall neither own nor is hereby acquiring any claim or right of ownership in or to the Aeonian Technology, the Services, the documentation or to any related patents, copyrights, trademarks or other intellectual property. Channel Partner will not, directly or indirectly: (a) modify, copy, or create a derivative work of any part of the Aeonian Technology; (b) reverse engineer, disassemble, or decompile any of the Aeonian Technology (except to the extent law mandates such rights); (c) use, access or allow access to the Services in any manner to provide service bureau, time-sharing or other computer services to third parties; (d) disclose the results of any benchmarking of the Services, without the prior written consent of Aeonian; (e) use “web crawlers” or other types of software or hardware technology to automatically download large amounts of materials from the Services, (f) access the Services to build a product using similar or competitive ideas, features, functions or graphics of the Services; (g) create Internet “links” to the Services, (h) attempt to circumvent any user limits or other license, timing or use restrictions that are built in to the Services, or (i) sell, resell, rent, sublicense, supply or lease the Services or related Content to third parties.
1. Aeonian exclusively owns the XeroDefense Technology and will have the sole and exclusive right, title and ownership in and to the foregoing and all Intellectual Property associated with and/or relating to the foregoing.
2. For avoidance of doubt, Aeonian’s Intellectual Property shall include, and Channel Partner may only use, any APIs and mechanisms for secure API calls or related Platform services and technology, including without limitation the API interface and specifications (the “API Technology”), for the sole purpose of exercising its rights in accordance with the terms and conditions of this Agreement. Channel Partner agrees that the API Technology is owned by Aeonian and is deemed Confidential Information (as used and defined below) and cannot be repurposed or resold by Channel Partner for use by Channel Partner or any third party in any way without the prior written consent of Aeonian.
3. Any new features with respect to the Platform’s functionality and developed by Aeonian during the Term and offered generally to other Aeonian clients for an additional fee will be offered on reasonably equivalent terms to Channel Partner. If Channel Partner requests in writing that Aeonian make additional modifications, enhancements and/or customizations to the Platform (e.g., new features or functionality for the Platform), then Aeonian will discuss such suggested enhancements and the feasibility of developing and completing such requests (collectively, the “Enhancements”). Aeonian will have the sole and exclusive ownership in and to any and all Enhancements and any Intellectual Property and Intellectual Property Rights with respect thereto. Based on discussion between the Parties, Aeonian will decide if it is feasible to make such suggested Enhancements and determine whether the Parties should execute a mutually agreed upon Statement of Work (each, a “SOW”) to address the specifics around the development work associated with the Enhancements. Aeonian, however, is under no obligation to make such Enhancements but may do so based on the nature and scope of the suggested Enhancements, the availability of resources, and such other factors as Aeonian may determine in its sole discretion. All Enhancements must have an associated SOW executed by both Parties.
C. PAYMENT TERMS.
1. Pricing. Fees for the initial Order will be as set forth in the Order Form. Aeonian reserves the right to modify its fees at any time.
2. Payment. Channel Partner will pay all fees due and owing under the Order Form for subscribers enrolled in the system on or before the Effective Date. Thereafter, Channel Partner will be invoiced for subscribers enrolled in the system. All payments hereunder shall be in US dollars made by check or electronic transfer. Payment is due as addresses in the Order. Overdue payments will accrue interest at the rate of one and one-half percent (1.5%) per month or the maximum amount permitted by law, whichever is lower, and may result in suspension or termination of Services. Fees are non-refundable, provided however that in the event Channel Partner terminates this Agreement for cause as stated in Section G(2), it shall have the right to receive a refund of the unused Subscription Fees paid, within thirty (30) days from such termination as it sole and exclusive remedy.
3. Taxes Not Included. Aeonian’s rates do not include taxes. Channel Partner will pay all taxes, including, but not limited to sales, use, gross receipts, excise, property, transaction, or other local, state or national taxes or charges imposed on, or based upon, the provision, sale or use of the Services. In the event Aeonian pays any such taxes which are Channel Partner’s responsibility, Channel Partner shall reimburse such taxes to the Aeonian within ten (10) days from receiving an invoice for such taxes.
D. SERVICE RESPONSIBILITIES OF CHANNEL PARTNER.
1. Integration. Channel Partner is solely responsible to integrate its system with the Services via the most current release of the APIs.
2. Channel Partner Data. As between Channel Partner and Aeonian, Channel Partner shall be solely responsible for the accuracy and quality of the data provided by Channel Partner (collectively “Channel Partner Data”).
3. Required Consents. Channel Partner acknowledges and understands that in order to provide the Services, Aeonian may need to access certain Channel Partner Data, and may need to access Channel Partner technology, products, hardware, software and databases that are provided by Channel Partner (together with Channel Partner Data, the “Channel Partner-Provided Materials”). Channel Partner shall be administratively and financially responsible for obtaining any consent, authorization or permission necessary for Aeonian to access each item of Channel Partner-Provided Materials (including, without limitation, any consumer consent required to provide the Services specified herein) (collectively, “Required Consents”). Any costs to Channel Partner that are associated with its carrying out these responsibilities are not included in the fees and will be the responsibility of Channel Partner. Aeonian shall access the Channel Partner-Provided Materials solely for the purposes of providing the Services to Channel Partner and shall treat the same as Confidential Information.
4. Data Backup and Disaster Recovery. Channel Partner shall be solely responsible for management of its data back-up, data recovery, and disaster recovery measures. Aeonian disclaims, and Channel Partner accepts all obligations and liability for maintaining data backup processes and procedures that insure timely backup copies of its data are created and available for data recovery.
5. Access. Channel Partner shall be solely responsible for maintaining the confidentiality of the password(s) and account and is fully responsible for all activities that occur under Channel Partner’s authorized user names. Channel Partner shall designate an Administrative User who shall be in charge of administering all login, password and any information obtained from Aeonian, and keep it confidential.
6. Users. The Administrative User shall provide access to the Services only to Channel Partner’s employees who are authorized to use the Services and have been supplied user IDs and passwords by Aeonian at Channel Partner’s request (each, a “User”). Administrative User shall ensure that Users use the log in and password in accordance with this Agreement. Channel Partner acknowledges that User IDs cannot be shared or used by more than one individual, provided User IDs may be reassigned to new Users who are replacing former Users who no longer use the Service. Use by non-employees of Channel Partner is not permitted without Aeonian’s prior written consent. Channel Partner agrees to immediately notify Aeonian of any unauthorized use of any of Channel Partner’s authorized passwords or accounts or any other breach of security.
7. Channel Partner’s Lawful Conduct. Channel Partner agrees to comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with its use of the Services, including without limitation those related to privacy, electronic communications, export and anti-spam legislation and shall obtain any permits or licenses required for such compliance.
8. Acceptable Use. Channel Partner agrees that it will not knowingly use or permit the use of the Services in any manner that could damage, disable, overburden, or impair or interfere with any other party’s use and enjoyment of the Services. Channel Partner agrees to comply with, and cause any of its Subscribers and authorized users using the Services on Channel Partner’s behalf to comply with, such reasonable acceptable use policies as Aeonian may from time to time establish or update with respect to the Services, including, but not limited to, the following acceptable use policies: when using the Services, Channel Partner shall not (a) engage in any unlawful, invasive, infringing, defamatory, or fraudulent purpose; (b) interfere with the use of the Services, or any technology or equipment used to provide the Services; (c) alter, disable, interfere with or circumvent any aspect of the Services; and/or (d) use the Services or a component of the Services in a manner not authorized by Aeonian, including accessing or using the Services for purposes of monitoring the availability, performance or functionality of the Services, or for any other benchmarking or competitive purposes, including, without limitation, for the purpose of designing and/or developing any competitive services.
9. Channel Partner represents and warrants to Aeonian that Channel Partner will not (a) except for the sole purpose of providing the Services to Subscribers, request, compile, store, scrape, maintain or use the Services or any Alerts to build its own database, (b) copy, modify, reverse engineer, decompile, or disassemble the Platform or the Services, or (c) reproduce or modify any Alerts.
10. Except for the sole purpose of providing the Services to Subscribers, Channel Partner will not: (a) temporarily, permanently or otherwise store any Alerts; (b) sell, resell, license or otherwise use the Services or the Alerts for any purposes (other than as contemplated hereby); (c) modify any credit related content or Services in any manner (other than the “look and feel” of the same for presentation purposes).
E. SUBSCRIBER CONTRACTS
1. Aeonian’s obligation to provide the Services to a Subscriber shall be subject to Channel Partner’s obligation to obtain a Contract with each Subscriber prior to permitting the Subscriber to access any Services. Channel Partner may only provide the Services to a Subscriber under a valid Contract.
2. Channel Partner may not make any covenants, representations or warranties to Subscribers that differ from the description of Services on xerodefense.com.
3. Notwithstanding anything to the contrary, Channel Partner will ensure that Subscribers understand that they must submit incidents directly to Aeonian for possible reimbursement for Services offering insurance in accordance with the terms and condition of the insurance policy. Channel Partner will notify each Subscriber that the Subscriber must review certificate of insurance for details prior to execution of the Contract.
4. Channel Partner shall permit Subscribers to terminate insurance services upon thirty (30) days’ written notice; provided, that if a Subscriber terminates such insurance services, Channel Partner’s only obligation is to pay for the Services provided as of the effective date of termination, and provided further that Channel Partner deactivates Subscriber’s access to the Services on the effective date of termination.
5. Channel Partner shall not permit any competitor of Aeonian to enter into a Contract or to access the Services.
Confidential Information. For purposes of this Agreement, confidential information shall include the terms of this Agreement, Aeonian’s pricing, Services, material or data that either Party provides to the other in connection with this Agreement which is clearly identified in writing at the time of disclosure as confidential (“Confidential Information”). Each Party agrees: (a) to keep confidential all Confidential Information disclosed to it by the other Party or by a third-party; (b) not to use the Confidential Information of the other Party except to the extent necessary to perform its obligations or exercise rights under this Agreement; and (c) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information) and to make Confidential Information available to employees only on a “need to know” basis. Confidential Information shall not include information which: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the recipient, subsequent to disclosure by the disclosing Party; or (4) the recipient becomes aware of from a third party not bound by non-disclosure obligations to the disclosing Party and with the lawful right to disclose such information to the recipient. Notwithstanding the foregoing, this Section will not prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority or regulation. The confidentiality obligations set forth herein shall survive the termination of this Agreement.
G. TERM AND SUSPENSION/TERMINATION.
1. Term. The Term shall be as set forth at the top.
2. Suspension or Termination of Services for Non-Payment. In the event that Aeonian does not receive payment for the Services when due, Aeonian may suspend or terminate those Services. During the term of the suspension, Channel Partner and its Subscribers shall not have the right to use the Services. If the Services have been terminated, Aeonian may require an additional fee for reinstatement. Aeonian’s suspension and termination rights are in addition to, and not in place of, any other rights and remedies Aeonian may have on account of nonpayment or late payment.
3. Termination for Cause. In addition to Aeonian’s right to terminate or suspend the Services as set forth in Section G(2), the Agreement may be terminated early (a) by either Party if the other Party materially breaches the Agreement and does not cure the breach within thirty (30) days of written notice of the material breach; (b) by either Party if the other Party becomes insolvent, invokes as a debtor any laws relating to the relief of debtors’ or creditors’ rights, or has such laws invoked against it as a debtor; or (c) Aeonian immediately if Channel Partner uses the Services in an unauthorized manner.
4. Effect of Termination. Upon termination of this Agreement for any reason, Aeonian will continue to provide the Services to Subscribers for the remaining term of their annual subscription, provided that Channel Partner continues to pay the subscription fees when due.
H. DISCLAIMER OF WARRANTIES.
THE SERVICES ARE PROVIDED STRICTLY ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY. THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT ARE IN LIEU OF, AND Aeonian SPECIFICALLY DISCLAIMS, ALL OTHER WARRANTIES WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, CHANNEL PARTNER SPECIFICALLY ACKNOWLEDGES THAT Aeonian AND ITS SUPPLIERS MAKE NO WARRANTY THAT THE SERVICES WILL MEET CHANNEL PARTNER’S REQUIREMENTS OR BE ERROR-FREE OR WITHOUT INTERRUPTION; THAT ALL ERRORS WILL BE CORRECTED; THAT THE SERVICES WILL BE FREE OF VULNERABILITY TO INTRUSION OR ATTACK; OR THAT CHANNEL PARTNER’S SPECIFIC REQUIREMENTS WILL BE SATISFIED. CHANNEL PARTNER ASSUMES RESPONSIBILITY FOR THE USE OF, AND RESULTS OBTAINED FROM THE SERVICES.
1. Aeonian shall indemnify, defend, and hold Channel Partner its officers, directors, shareholders, employees, contractors and agents (“Channel Partner Indemnified Parties”) harmless from and against any and all costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys’ fees) (collectively, “Losses”) arising out of or in connection with a claim, suit, action, or proceeding (each a “Claim”) made or brought by any third party against any Channel Partner Indemnified Parties asserting that Channel Partner’s use of the Services as expressly permitted hereunder infringes the U.S. patent, copyright, or trade secret rights of such third party. The foregoing indemnification does not extend to any Claim to the extent arising out of a combination of the Services with any hardware, software, data or technology not provided by Aeonian.
2. Channel Partner shall indemnify, defend, and hold Aeonian its officers, directors, shareholders, employees, contractors and agents (“Aeonian Indemnified Parties”) harmless from and against any Losses arising out of or in connection with a Claim made or brought by any third party (including Subscribers) against any Aeonian Indemnified Parties which arise out of or results from a claim relating to any use of the Services other than as expressly permitted hereunder or any breach by Channel Partner of its obligations under Section E.
J. LIMITATION OF LIABILITY.
1. LIABILITY. IN NO EVENT WILL AEONIAN’S LIABILITY TO CHANNEL PARTNER EXCEED THE GREATER OF THE AMOUNTS RECEIVED BY AEONIAN FOR A SPECIFIC ORDER FORM TO WHICH CHANNEL PARTNER’S CLAIM RELATES IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM. AEONIAN SHALL NOT BE LIABLE FOR ANY LOSS OF BUSINESS, LOST PROFITS, REVENUE, OR DATA, FOR ANY “COVER” DAMAGES, OR FOR ANY INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, SPECIAL, PUNITIVE OR INDIRECT DAMAGES OF ANY KIND, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF AEONIAN OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER OR NOT ANY REMEDY PROVIDED SHOULD FAIL OF ITS ESSENTIAL PURPOSES, OR FOR ANY CLAIM BY ANY THIRD PARTY. THESE LIMITATIONS WILL SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THIS AGREEMENT. CHANNEL PARTNER ACKNOWLEDGES THAT THE LIMITATIONS SET FORTH HEREIN ARE INTEGRAL TO THE FEES CHARGED IN CONNECTION WITH MAKING THE SERVICES AVAILABLE TO CHANNEL PARTNER AND THAT WERE AEONIAN TO ASSUME ANY FURTHER LIABILITY SUCH FEES WOULD OF NECESSITY BE SET HIGHER.
2. CLASS ACTION WAIVER. THE PARTIES WAIVE ANY RIGHT TO ASSERT ANY CLAIMS AGAINST THE OTHER PARTY AS A REPRESENTATIVE OR MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION, EXCEPT WHERE SUCH WAIVER IS PROHIBITED BY LAW OR DEEMED BY A COURT OF LAW TO BE AGAINST PUBLIC POLICY. TO THE EXTENT EITHER PARTY IS PERMITTED BY LAW OR COURT OF LAW TO PROCEED WITH A CLASS OR REPRESENTATIVE ACTION AGAINST THE OTHER, THE PARTIES AGREE THAT: (I) THE PREVAILING PARTY SHALL NOT BE ENTITLED TO RECOVER ATTORNEYS’ FEES OR COSTS ASSOCIATED WITH PURSUING THE CLASS OR REPRESENTATIVE ACTION (NOT WITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT); AND (II) THE PARTY WHO INITIATES OR PARTICIPATES AS A MEMBER OF THE CLASS WILL NOT SUBMIT A CLAIM OR OTHERWISE PARTICIPATE IN ANY RECOVERY SECURED THROUGH THE CLASS OR REPRESENTATIVE ACTION.
K. ADDITIONAL TERMS.
1. Entire Agreement. This Agreement represents the complete and final agreement concerning the subject matter hereof and replaces any and all prior or contemporaneous understandings or agreements, written or oral, regarding the subject matter contained herein.
2. Non-solicit/Non-Hire. Both Parties agree that during the term of this Agreement and for one (1) year thereafter, neither Party will directly or indirectly solicit, offer employment or hire any current or former employee or consultant employed by or hired by the other Party involved in performing or receiving the Services. This provision does not restrict the right of either Party to solicit or recruit generally in the media.
3. Dispute Resolution; Governing Law; Forum; Venue. All disputes between the Parties arising out of or in any way connected with the execution, interpretation and performance of this Agreement (including the validity, scope and enforceability of this arbitration provision) or the relationship created thereby shall be solely and finally settled by expedited arbitration conducted in accordance with the Expedited Procedures of the Commercial Arbitration Rules (the “AAA Rules”) of the American Arbitration Association (the “AAA”). Judgment on the arbitration award may be entered and enforced in any court having jurisdiction over the Parties or their assets. It is the intent of the Parties that the arbitration provisions hereof be enforced to the fullest extent permitted by applicable law, including the Federal Arbitration Act, 9 U.S.C. § 2. This Agreement shall be construed, governed, and enforced solely and exclusively by the internal laws of the State of Texas, without regard to the principles of conflict of laws. Channel Partner agrees that the courts located in Travis County, Texas, USA, will constitute the sole and exclusive forum for the resolution of any disputes arising out of or in connection with this Agreement and Channel Partner hereby irrevocably consents to the personal jurisdiction and venue of such courts and irrevocably waives any objections thereto. The prevailing Party shall be entitled to recover its costs and fees, including reasonable attorneys’ fees associated with such litigation from the other Party.
4. Amendment; Waiver. This Agreement may only be amended in writing executed by an authorized representative of Aeonian. No provision hereof shall be deemed to be waived unless such waiver shall be in writing and signed by Aeonian.
5. Assignment. Aeonian shall have the right to assign this Agreement. Channel Partner shall have no right to assign this Agreement to any third party without Aeonian’s prior written consent. Any assignments in violation of this provision shall be null and void.
6. Force Majeure. Neither Party (the “Affected Party”) shall be liable to the other (the “Unaffected Party”) for failure or delay in performance (other than a payment obligation) if such failure or delay is caused by riot, fire, flood, earthquake, natural disaster, electronic virus, electronic attack or infiltration, internet disturbance, government act or other similar cause beyond such Party’s reasonable control (collectively, a “Force Majeure Event”), provided that the Affected Party gives prompt notice of such condition to the Unaffected Party and uses reasonable efforts to resume its full performance as soon as possible.
7. Notices. A Party may give notice by means of a written communication sent by first class mail or pre-paid post to the address specified on the Cover Page. Such notice shall be deemed to have been received upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post).
8. Survival. Any payment obligation that Channel Partner has to Aeonian hereunder, as well as any other term hereunder which contemplates continuing effectiveness shall survive termination of this Agreement for any reason, including without limitation Sections H, J and K. Any use of the Services beyond the licensed term or the authorized use will result in the assessment of additional fees, in addition to any other rights or remedies of Aeonian.
9. Publicity. Subject to the prior written approval of Channel Partner, Aeonian may identify Channel Partner as a paying Channel Partner of Aeonian and a user of the Services in press releases, marketing materials, demonstrations and presentations.
10. Audit. Upon notice of cause Channel Partner will provide Aeonian and/or Aeonian’s representatives access to Channel Partner’s systems, records, processes and practices so that an audit may be conducted to determine whether Channel Partner is in compliance with this Agreement. Aeonian will not exercise such audit right more frequently than once per twelve (12) month period and Aeonian will bear the full cost and expense of any such audit, unless such audit discloses a breach of this Agreement, in which case Channel Partner will bear the full cost and expense of such audit and a further audit may be conducted by Aeonian or Aeonian’s representatives within the current twelve (12) month period.
“AAA” has the meaning set forth in Section K(3).
“AAA Rules” has the meaning set forth in Section K(3).
“Administrative User” means those Users designated by Channel Partner who are authorized to, among other things, create User accounts and otherwise administer Channel Partner’s use of the Services.
“Affected Party has the meaning set forth in Section K(6).
“Alerts” means alerts, reports and/or any other notifications delivered or displayed by Aeonian to Subscriber(s).
“API” means an application programming interface to the Platform used to access the Services.
“Claim” has the meaning set forth in Section I(1).
“Confidential Information” has the meaning set forth in Section F.
“Content” means the audio and visual information, documents, software, products and services made available to Channel Partner in the course of using the Services.
“Contract” means a written, binding, enforceable contract executed by Channel Partner and each Subscriber containing, among other things, a cap on direct damages benefitting Aeonian not to exceed the fees paid by such Subscriber over a twelve month period, a disclaimer of all consequential, indirect, special, incidental and punitive damages benefitting Aeonian, an agreement that Aeonian may terminate the Services in the event it does not receive payment and at any time its contract with CP is terminated, without liability of any kind, a mandatory binding expedited arbitration requirement, all necessary Subscriber’s consents and authorizations, a disclaimer of all warranties, and a class action waiver.
“Cover Page” means the first page of this Agreement, which includes the signature block.
“Channel Partner Data” has the meaning set forth in Section D(2).
“Channel Partner-Provided Materials” has the meaning set forth in Section D(3).
“Fees” means the fees for the applicable Services.
“Force Majeure Event” has the meaning set forth in Section K(6).
“Intellectual Property” means all copyrights (including software programs and related documentation), user-interface patterns and conventions, templates, mask work rights, inventions, ideas, improvements, enhancements, concepts, designs and discoveries (whether patentable or not), trademarks, service marks, trade names, moral rights and trade secrets and all reissues, divisions, continuations, continuations-in-part, renewals, enhancements, derivatives and extensions of the foregoing and “Intellectual Property Rights” means any and all common law, statutory, legal, equitable and contractual rights and associated rights of action associated with the subject Intellectual Property, including, without limitation, the right to sue for, settle or release claims with respect to any past, present of future wrongful use or infringement of the subject Intellectual Property. Such Intellectual Property Rights include, without limitation, rights under trademarks and service marks, rights under trademark or service mark registrations, rights under trademark or service mark applications for registration, patent rights, rights under patent applications, common law copyrights, rights under copyright applications for registration, rights under copyright registrations, trade secrets, moral rights for all purposes and uses, or other similar property rights, whether protected under the laws of the United States of America, or some other jurisdiction.
“Losses” has the meaning set forth in Section I(1).
“Order” the orders placed through Order Forms.
“Order Form” the form(s) for placing orders for services hereunder, including addenda thereto, that are entered into by the parties from time to time.
“Aeonian Indemnified Parties” has the meaning set forth in Section I(2).
“Aeonian Technology” means (i) the Aeonian name, the Aeonian logo, the Aeonian domain name, the product names and other trademarks associated with the Services; (ii) Platform, Enhancements, APIs, the Services, API Technology, and the Alerts, (iii) the all intellectual property rights associated with the foregoing; and (iii) all material appearing on and related to the items set forth in (i) and other tangible or intangible technical material or information.
“Platform” means Aeonian’s proprietary cloud platform.
“Required Consents” has the meaning set forth in Section D(3).
“Results” means the results generated by queries, data feeds, and other use of and access to the Services by Subscriber.
“Service” or “Services” means the services described in the Service Description on the Cover Page.
“Term” has the meaning set forth on the Cover Page.
“Unaffected Party” has the meaning set forth in Section K(6).
“Users” means Channel Partner’s employees who are authorized to use the Services and have been supplied user IDs and passwords by Aeonian at Channel Partner’s request.
By registering an account at https://aeonian.services and use of services you agree and accept these terms as a Channel Partner.