End User Agreements

Anywhere365 Terms

The customer shall also be bound by the end user license agreement and other terms located at https://anywhere365.io/terms-conditions/, which are incorporated herein by reference.

Arctic Wolf Terms

The customer shall also be bound by the terms located at https://arcticwolf.com/terms/, which are incorporated herein by reference.  The customer shall contact Heartland for any required password information.

Avaya End User Terms

The customer shall also be bound by the Avaya End User License located at http://support.avaya.com/LicenceInfo, which is incorporated herein by reference.  If the territory is the United States or Canada, Avaya shall extend its then applicable warranty terms to customers purchasing products from a reseller in accordance with the warranty policy located at http://support.avaya.com/LicenseInfo.

Avanan Terms

The customer shall also be bound by the Avanan Terms of Service located at https://www.avanan.com/avanan-terms-of-service, which are incorporated herein by reference.

Bullwall End User Terms

The customer shall also be bound by the license agreement located at https://link.bullwall.com/eula/ltd/version/current, which is incorporated herein by reference. 

BROADCOM VMWARE END USER TERMS

1. Buyer Affirmation. Heartland Business Systems, LLC (“Buyer”) affirms:
a) it has a written agreement with the End User for the sale of the Broadcom or Offering(s) identified in the applicable quote; such that the End User is contractually bound and agrees in writing that End User’s use of the Broadcom Offering(s) shall be subject to the End User Terms (defined below);
b) the End User has agreed to pay Buyer an agreed upon fee for the Broadcom Offering(s);
c) Buyer shall ensure information relating to license type, Authorized Use Limitations and other Broadcom Offering related information set forth herein is provided to the End User; and
d) in furtherance of your contractual and legal obligation to strictly comply with U.S. law relating to export, re-export, and transfer, and to the extent required by law, Buyer understands that TD SYNNEX will not accept and Buyer agrees not to submit orders from (a) customers who are military end users of China, Russia or Venezuela for products with ECCN starting with 5D992, or (b) Broadcom, TD SYNNEX, Buyer, or End User reasonably knows the Broadcom Offerings are intended or likely to be transferred or resold to such end users;
2. End User Terms. The use of these offerings are governed by these ordering terms and conditions as well as: (a) either (i) the Broadcom terms and conditions published at https://www.broadcom.com/licensing, or (ii) the fully executed agreement by and between the End User and an applicable Broadcom entity governing the CA, Symantec, or VMware branded offerings ordered in this order (provided that any terms that purport to protect any future pricing between the parties and any purported rights to host Broadcom Offerings on the behalf of an unrelated third party shall be deemed null and void for purposes of this order), (b) the Specific Program Documentation (the “SPD”), or Product Use Rights (the “PUR”), and/or SaaS Listing applicable to the Broadcom Software, SaaS and Maintenance located at https://www.broadcom.com/licensing, and (c) the additional terms hereon (collectively, the ”End User Terms”), which Buyer agrees to ensure such terms are presented to and agreed by the End User along with the additional flow down terms noted below before or at the time of closing the End User transaction. Any terms that may appear on Buyer’s purchase order that vary from or purport to add to the End User Terms (including, without limitation, pre-printed terms) are deemed not appended, inapplicable, and void.
3. Payment. Failure to timely remit payment of all amounts set forth in the Payment Schedule after written notice by TD SYNNEX and a reasonable opportunity to remit such payment by Buyer, to the maximum extent permitted by applicable law, shall relieve Broadcom of any and all support obligations hereunder and Buyer rights to resell licensed usage rights to the End User may be suspended until payment is tendered at which time use rights shall recommence.
4. Termination For Convenience.
a) Upon approval from Broadcom, Reseller may terminate an End User’s order (however titled) provided that the End User directly and through each of its partners also terminates each and all other agreements (directly or indirectly through any partner and whether or not related to this order or the End User Terms) under which the End User may procure any CA, Symantec, or VMware branded offerings (but in all cases excluding any hardware offerings and associated support contracts therefor) together with each and all orders (however titled) in effect (except in the case of VMware, only orders entered into after November 21, 2023 need to be terminated) between the parties as of the date of termination (collectively, for purposes of this section, the “Agreement(s)”), without cause and without further charge or expense at any time, immediately upon written notice to Broadcom sent to [email protected].
b) On or after the termination date, with the exception of any Fully Paid-Up perpetual licenses (where the amount of “Fully Paid-Up” licenses will equal the total whole number of licenses earned prior to the termination and are assumed to be paid for equally over the initial term of the associated Support Services), Buyer shall instruct End User to either: a) delete all full or partial copies of the CA, Symantec, or VMware branded software (collectively (“Broadcom Software”) from all computing or storage equipment, and verify such deletion in a statement signed by a Vice- President or a duly authorized representative and sent to [email protected], or b) return to Broadcom all full or partial copies of the Broadcom software.
c) Once End User’s verification or the Broadcom software copies are received, Broadcom will pay Buyer, a pro-rata refund of any License, SaaS/Cloud Service, Support Services, or other Buyer pre-paid (“Refund Fees”) in accordance with the paragraph below. Refund Fees will be calculated on the number of days remaining in the term (which for the purposes of this calculation will be deemed to commence from the date End User’s verification or the Broadcom software copies are received) of the offering eligible for the refund. If the Broadcom software is licensed as a perpetual license and the associated Support Services is in its initial term, Buyer as appropriate, will receive a pro-rated refund of the cash consideration paid to Broadcom based on the initial payment schedule and shall be entitled to keep the whole number of perpetual licenses Fully Paid-Up through such date, absent language to the contrary in the applicable order.
d) Notwithstanding the foregoing paragraph, if the Agreement is terminated without cause, neither party shall have further obligations under the Agreement, except that the Parties shall remain bound by the obligations within the survival sections of the Agreements. Refund Fees will be paid within sixty (60) days to Buyer (who will process the invoicing or reimbursement of fees to End User as appropriate and under the commercial terms between the Broadcom Buyer and End User), from the date End User’s verification or the Broadcom software copies are received, and any unpaid fees reflecting the Broadcom offerings delivered prior to the termination date shall become immediately due.
5. Mandatory Flow Down and Additional Terms for End Users. Buyer shall flow down the following additional terms to the end user (the “Additional Terms”).
a) For any order for a Symantec/VMware offering for an end user utilizing a fully executed agreement by and between such end user and Symantec/VMware: Broadcom is the successor in interest to Symantec/VMware. For any order for a Broadcom offering for an end user utilizing a fully executed agreement by and between Broadcom and such end user: Any prior Broadcom party to Your fully executed Broadcom agreement shall be replaced, if not already the contracting party with the following entity: (a) North America – CA, Inc.; (b) Latin America excluding Brazil – CA, Inc; (c) Brazil – CA Programas de Computador, Part e Serv Ltda; and (d) Europe, Middle East and Africa, and Asia Pacific and Japan – VMWare International Unlimited Company.
b) End User may terminate this Agreement provided that End User also terminates each and all other agreements (direct or indirect, whether or not related to this Agreement) under which End User may procure any CA, Symantec, or VMware branded offerings (but in all cases excluding any hardware offerings and associated support contracts therefor) together with each and all orders (however titled) in effect (except in the case of VMware, only orders entered into after November 21, 2023 need to be terminated) between the parties as of the date of termination (collectively, for purposes of this section, the “Agreement(s)”), without cause and without further charge or expense at any time, immediately upon written notice to Broadcom sent to [email protected].
c) On or after the termination date, with the exception of any Fully Paid-Up perpetual licenses (where the amount of “Fully Paid-Up” licenses will equal the total whole number of licenses earned prior to the termination and are assumed to be paid for equally over the initial term of the associated Support Services), End User must either: a) delete all full or partial copies of the CA, Symantec, or VMware branded software (collectively (“Broadcom Software”) from all computing or storage equipment, and verify such deletion in a statement signed by a Vice-President or a duly authorized representative and sent to [email protected], or b) return to Broadcom all full or partial copies of the Broadcom software.
d) Once End User’s verification or the Broadcom software copies are received, Broadcom will pay End User, or Broadcom’s distributor/reseller, a pro-rata refund of any License, SaaS/Cloud Service, Support Services, or other fees End User or Broadcom Buyer pre-paid (“Refund Fees”) in accordance with the paragraph below. Refund Fees will be calculated on the number of days remaining in the term (which for the purposes of this calculation will be deemed to commence from the date End User’s verification or the Broadcom software copies are received) of the offering eligible for the refund. If the Broadcom software is licensed as a perpetual license and the associated Support Services is in its initial term, End User, or Broadcom Buyer as appropriate, will receive a pro-rated refund of the cash consideration paid to Broadcom based on the initial payment schedule and shall be entitled to keep the whole number of perpetual licenses Fully Paid-Up through such date, absent language to the contrary in the applicable order.
e) Notwithstanding the foregoing paragraph, if the Agreement is terminated without cause, neither party shall have further obligations under the Agreement, except that the Parties shall remain bound by the obligations within the survival sections of the Agreements. Refund Fees will be paid within sixty (60) days to End User (or Broadcom Buyer who will process the invoicing or reimbursement of fees to End User as appropriate and under the commercial terms between the Broadcom Buyer and End User), from the date End User’s verification or the Broadcom software copies are received, and any unpaid fees reflecting the Broadcom offerings delivered prior to the termination date shall become immediately due.
f) Broadcom is authorized to use the End User trademarks, service marks, logos, certifications, designations and insignias in connection with press and earnings releases. In addition, CA is authorized to use a specific designation (such as preferred business partner etc.) it may have in describing its relationship to End User.
6. Assignment. Neither party shall assign the End User Terms or any of its rights or delegate any of its duties under the End User Terms, either by operation of law, agreement, or any other process, without the prior written consent of the other party, except that Broadcom shall have the right to assign the End User Terms or any of its rights or delegate any of its duties under the Agreement at any time to any Broadcom Affiliate(s), or to a successor in interest of all or substantially all of the business to which the End User Terms relate. Subject to the foregoing, the End User Terms will be binding upon, enforceable by, and inure to the benefit of the parties and their respective successors and assigns. Any attempted assignment in violation of this section shall be null and void. “Affiliate” shall mean any person or entity which directly or indirectly owns, controls, is controlled by, or is under common control with a party, where control is defined as owning or directing more than fifty percent (50%) of the voting equity securities or a similar ownership interest in the controlled entity.
7. Migration. End User understands that Broadcom may migrate a previously licensed software (the “Original Product(s)”) to a new software product (the “Migrated Product(s)”). It is the End User’s responsibility to understand which products herein may be migrated products. Any migrated products are provided in consideration of Original Product(s) being terminated. End User shall cease using and de-install the Original Product(s) following a transition period not to exceed ninety (90) days, as of the date of receipt of the Migrated Product(s); The Migrated Product(s) are subject to the Agreement, the Specific Program Documentation (the “SPD”) applicable to the Broadcom Software and Maintenance, located at Broadcom’s website address at https://www.broadcom.com/licensing and this transaction document including all financial obligations relating to the Original Product(s) which remain valid and enforceable and are applicable to the Migrated Product(s). Prior to signature of this order, End User should ensure it understands the migration for the products licensed herein. Execution of this order shall constitute acceptance of such migration and shall also constitute a representation and warranty by End User that it has reviewed and fully understands same. Migration path for licensed products can be obtained at https://www.broadcom.com/docs/product-migration.
8. Software Support Availability. End User understands that Broadcom may either (i) stabilize software in which no future enhancements, versions, releases, development, or service packs are planned, or (ii) the software may be end of life or a particular version is end of service in which Broadcom will no longer provide (a) operational or technical support and (b) develop and provide new enhancements, features, upgrades, service packs, and fixes for the software offering (the “Software Support Availability”). Prior to acceptance of this order, End User should ensure it understands the support for the products licensed herein. Acceptance of this order shall constitute acceptance of such support and shall also constitute a representation and warranty by End User that it has reviewed and fully understands same. Software Support Availability for licensed products can be obtained at https://www.broadcom.com/docs/end-of-support.
9. Personal Data. End User acknowledges and agrees that Broadcom will process Personal Data as part of the provision of the Broadcom Offerings in accordance with Broadcom’s Privacy Policy located at: https:// www.broadcom.com/company/legal/privacy. End User hereby authorizes Broadcom to make necessary transfers of Personal Data and that any Broadcom Affiliates and subcontractors may process such Personal Data for the purposes of providing the Broadcom Offering contemplated under the End User Terms. Broadcom complies with the provisions of the General Data Protection Regulation (“GDPR”), and/or the Swiss Federal Data Protection Act and/or other applicable local legislation, with respect to such transfers. Where Broadcom is a processor for End User under the GDPR, and/or the Swiss Federal Data Protection Act and/or other applicable local legislation, Broadcom’s processing shall be subject to and in accordance with Broadcom’s global Data Processing Addendum (“DPA”), including the relevant Standard Contracting Clauses (“SCC”) located at: https://www.broadcom.com/company/legal/privacy/data-transfers for international data transfer incorporated therein. End User has been advised that during the term of this order Broadcom will collect Personal Data and process it as a Controller pursuant to the Privacy Policy and to the extent permitted by GDPR, and/or the Swiss Federal Data Protection Act and/or other applicable local legislation.

Cisco Enterprise Agreement 2.0 Terms

The End User must sign and submit to Cisco the then-current End User EA Program Terms and EUIF located on Cisco’s SalesConnect website (https://salesconnect.cisco.com/open.html?c=3e63bd9a-a894-4886-8342-ed1b626edf13), which the End User may not modify.  The End User EA Program Terms and EUIF must be signed by an authorized representative of End User and submitted to the Enterprise Agreement Management Platform (“EAMP”), or other ordering tool as required by Cisco.  At its discretion, Cisco may contact the End User’s authorized representative identified on the EUIF to confirm the reported information.

Cisco Enterprise Agreement 2.0 True Forward Obligations.

1. The End User and their Participating Affiliates’ Consumption will be periodically reviewed for each Suite against their then-current Entitlement throughout the applicable Suite Term.  If the Usage is found to be greater than their current Entitlement for the measured Suite, then (i) Heartland will invoice the End User for all associated charges for such increased Consumption for the remainder of the Suite Term; and (ii) the Entitlement for that Suite will be adjusted on a going-forward basis to the increased Consumption level (a “True Forward”).
2. The End User must assist Heartland with gathering information necessary for Heartland to calculate the End User’s owed True Forward fees during the Suite Term. This may require the End User to verify the quantity of licenses installed or devices used by the End User during the Suite Term.  The fees due for True Forward will be calculated by Heartland either annually on each anniversary of the purchased Suite or as described in the applicable Enrollment Description.
3. Notwithstanding anything else contained herein, Heartland shall also have the right to conduct a True Forward with the End User at any time that Cisco conducts a True Forward with regard to Heartland. Heartland’s calculation of the End User’s owed True Forward fees shall be based upon the information provided by Cisco at such time, as well as any additional information that Heartland has.

“Participating Affiliates” means the End User’s Affiliates whose Meter counts are included on the EUIF.

“Affiliate” means, with respect to End User, any entity that directly or indirectly Controls, or is Controlled by, or is under common Control with such party. “Control” means (a) that entity directly or indirectly owns more than 50% of the relevant party; or (b) that entity has the ability to direct the affairs of the relevant party through any lawful means (e.g., a contract that allows control).

“Meter” means the unit of measurement for Consumption of Software or Cloud Services. The applicable Meters are set forth in the Enrollment Description.

“EUIF” means the End User Information Form that lists the Meter counts for the End User and its Participating Affiliates which is used to establish the price quote and the attached Enrollment Description(s).

“Enrollment Description” means the supplemental program terms and description of the purchased Suites attached to the EUIF of the End User EA Program Terms.

“Consume” or “Consumption” means the End User and their Participating Affiliates ability to download, install, activate, provision, enable, or otherwise access Software or Cloud Services.

“Suite” means the Software and Cloud Services that are listed in the Enrollment Description for which the End User is entitled to Enterprise-Wide Use.

“Enterprise-Wide Use” means the purchase commitment in the purchased Suite for the End User and all its Participating Affiliates, as reflected on the EUIF.

“Entitlement” means, at any point in time during the Suite Term, the type and quantity of Software and Services as determined by the Meter counts for which the End User has already paid the applicable fees to Heartland for.

“Suite Term” means the duration of the Suite resold to an End User.

“Enrollment Description” means the supplemental program terms and description of the purchased Suites attached to the EUIF of the End User EA Program Terms.

“End User EA Program Terms” means the Cisco Enterprise Agreement Program Terms between Cisco and the End User.

“True Forward” means an annual adjustment to account for the End User’s Consumption of additional Software or Cloud Services above the previous year’s Entitlement or as described in the Enrollment Descriptions.

Cisco Enterprise Agreement 3.0 Terms

The End User EA Program Terms must be signed and submitted to Cisco before the End User’s EA Term will commence.  Cisco will have End User accept the then-current End User EA Program Terms located on Cisco’s SalesConnect website (https://salesconnect.cisco.com/#/program/PAGE-18166) or Cisco tool.

The End User shall also be bound by the following terms, which are incorporated herein by reference:

1. “End User EA Program Terms” means the Cisco Enterprise Agreement Program Terms between Cisco and the End User located on Cisco’s SalesConnect website https://salesconnect.cisco.com/#/content-detail/df10afd6-249d– 4218-b7fb-055c059aa6f0, which includes the End User Terms which are incorporated by reference.
2. “End User Terms” means:
3. for Cisco Technology, the Cisco End User License Agreement (“EULA”) (including applicable Product Specific Terms) available at http://www.cisco.com/go/eula, or similar written agreement between the End User and Cisco for accessing and using Cisco Technology, (the “Licensing Terms”); and
4. for Services, the combination of Cisco’s explanation of How Cisco Provides Services and the applicable Service Descriptions available at https://www.cisco.com/c/en/us/about/legal/service-descriptions.html (collectively the “Services Terms”).

Cisco Enterprise Agreement 3.0 True Forward Obligations.

The End User and their participating Affiliates’ Usage will be periodically reviewed for each Suite or Add-on (on a quarterly or annual basis) against their then-current Entitlement throughout the applicable Suite Term (a “True Forward”).  If the Usage is found to be greater than their current Entitlement for the measured Suite or Add-on, then (i) Heartland will invoice the End User for all associated charges for such increased Usage for the remainder of the Suite Term; and (ii) their Entitlement for that Suite or Add-on will be adjusted on a going-forward basis to the increased Usage level, subject to Exceptional Growth and Growth Allowance provisions below for the duration of the EA Term.  Any applicable charges for increased Usage will be based on a going-forward basis to the increased Usage level.  There will be no retroactive charges for such increased Usage level.

1. Initial Growth Cap. If End User and their participating Affiliates’ Usage of a Full Commit Suite at any time during the first six months of the Suite Term exceeds 105% of the Initial Entitlement, then Heartland reserves the right to conduct a special True Forward review at the next quarterly anniversary of the applicable Suite Term (“Initial Growth Cap”).
2. Growth Allowance. After the first six months of the Suite Term, the End User and their participating Affiliates may Use up to 115% of the Initial Entitlement of their Full Commit Suites (which may have already increased up to 105% during the Initial Growth Cap period), without incurring in any additional fees (“Growth Allowance”).  If the Usage is greater than the allowed 115%, then (i) only the amount above the Growth Allowance threshold will be invoiced at the next True Forward review or (ii) an Exceptional Growth adjustment applies, as described below. Growth Allowance only applies to certain Full Commit Suite(s) specified in the Program Guide.
3. Exceptional Growth. If the End User and their participating Affiliates’ Usage in a Full Commit Suites is greater than 115% as measured each subsequent quarter through the remainder of the Suite Term, then Heartland reserves the right to conduct a special True Forward at the next quarterly anniversary of the applicable Suite Term (“Exceptional Growth”).
4. Intra Suite Value Shift. If an End User purchases a Full Commit Suite that is eligible for this value shift method (as set forth in the Program Guide), then during a True Forward event, the residual value of any purchased but unused licenses in the Suite will be applied to offset charges for increased Usage of other licenses in the same Suite (“Intra Suite Value Shift”).
5. Cross Suite Value Shift. If an End User purchases a Full Commit Suite that is eligible for this value shift method between Suites, (as set forth in the Program Guide) then the End User will be permitted to apply the residual value of both (i) unused licenses and/or (ii) licenses that were previously used that they agree to no longer use (i.e., licenses associated with decommissioned hardware) to offset fees for increased Usage of other licenses in another eligible Full Commit Suite (“Cross Suite Value Shift”).  An End User can only take advantage of Cross Suite Value Shift if they have (i) ordered both Full Commit Suites from Heartland (the same EA 3.0 authorized partner), during the initial EA Order for the Networking Portfolio, for the same Suite Term, and (ii) provided Heartland receives notice sixty (60) days prior to the next annual True Forward event.  Upon receipt of their notice, the End User agrees to work with Heartland to determine the resulting allocations between the purchased Suites based on relative values of the applicable Entitlements to the Cisco Technology (“Final Allocations”).  The Final Allocations will be agreed in writing between the End User and Heartland.  If the Final Allocations result in a net balance owed by the End User to Heartland, the End User will be required to pay that net balance.
6. Notwithstanding anything else contained herein, Heartland shall also have the right to conduct a True Forward with the End User at any time that Cisco conducts a True Forward with regard to Heartland. Heartland’s calculation of the End User’s owed True Forward fees shall be based upon the information provided by Cisco at such time, as well as any additional information that Heartland has.

“Add-Ons” means optional Cisco Technology and Services offerings that are available as an add-on purchase to an underlying Suite, as described in the Program Guide.

“Affiliate” means, with respect to a party, any entity that directly or indirectly Controls, or is Controlled by, or is under common Control with such party. “Control” means to: (a) own more than 50% of the relevant party; or (b) be able to direct the affairs of the relevant party through any lawful means (e.g., a contract that allows control).

“Cisco Technology and Services” means the Cisco hosted software-as-a-service, software, services, and Support Services.

“Entitlement” means the type, duration, and quantity of Suites and Add-Ons that an End User has committed to acquire, as adjusted (e.g., as a result of a True Forward).

“Full Commit Suite” means a Suite that is acquired on terms (including duration, price, and quantities) that fulfill the minimum requirements criteria for a ‘Full Commit Suite’ as set forth in the Program Guide.

“Initial EA Order” means an End User’s first order to Heartland under the EA Program which must meet the minimum requirements set forth in the Program Guide.

“Program Guide” means the EA 3.0 Program Guide which provides the details of the Cisco Enterprise Agreement 3.0 Program at: https://www.cisco.com/c/en/us/buy/enterprise-agreement/resources.html?ccid=cc002777

“Suite” means a defined combination of Cisco Technology and Services made available under the Partner EA Program, as described in the Program Guide.

“Suite Term” means the commitment period set forth in the Initial EA Order, as extended or upgraded by mutual agreement.

“Use” or “Usage” means End User’s consumption, use or access to Suites and Add-Ons available under the EA Program, including acquiring additional Suites and Add-Ons and adjustments to End User’s Entitlements in the Suites and Add-Ons that the End User has already acquired.

Cisco Software and Cloud Services

The customer shall also be bound by the End User License Agreement together with any applicable Product Specific Terms located at https://www.cisco.com/c/en/us/about/legal/cloud-and-software/software-terms.html, which are incorporated herein by reference.

Citrix Terms

The customer shall also be bound by the end user license agreement located at https://www.citrix.com/buy/licensing/agreements.html, which is incorporated herein by reference.

Cloud Software Group End User Agreement

The customer shall also be bound by the End User Agreement located at https://www.cloud.com/content/dam/cloud/documents/legal/end-user-agreement.pdf, which is incorporated herein by reference.

CyberArk

The customer shall also be bound by the Software License Agreement, Terms of Service (SaaS), Documentation, Maintenance and Support Terms, Professional Services terms, standard terms of sale and/or such other terms as generally published by CyberArk, and made available at https://www.cyberark.com/contract-terms/, which are incorporated herein by reference.

Delinea Master Subscription and License Agreement

The customer shall also be bound by the Master Subscription and License Agreement located at https://delinea.com/msla, which are incorporated herein by reference.

DLT End User Terms

The Quote and any resulting order is subject to the terms and conditions posted at HTTPS://WWW.DLT.COM/PRODUCTS/CLIENT-COMMERCIAL-LICENSES.  These terms control the terms of sale as well as the end user’s use of the products and/or services included in the Quote.  No returns are authorized of the products and/or services included in the Quote.  The products and/or services included in the Quote are nonrecourse, noncancelable, and non-returnable unless explicitly agreed to in writing by DLT.

Dubber Terms of Service

The customer shall also be bound by the Dubber Terms of Service located at https://www.dubber.net/terms/ and the Dubber Privacy Notice located at www.dubber.net/privacy/, which are incorporated herein by reference.

FirstDigital Terms

The customer shall also be bound by the then-current Universal Terms of Service located at located at https://firstdigital.com/legal/, with updates that are published on FirstDigital’s website from time to time, in FirstDigital’s sole discretion, which are incorporated herein by reference.

The customer shall also be bound by the then-current Privacy Policy located at located at https://firstdigital.com/legal/, with updates that are published on FirstDigital’s website from time to time, in FirstDigital’s sole discretion, which are incorporated herein by reference.

Google G Suite Terms

1. Reseller and Customer are independent contractors with respect to the resale and purchase of the Product.
2. Customer will permit Reseller to disclose Customer Data to Distributor (and permit the Distributor to provide such Customer Data to Google for use by Google in accordance with the Google TOS including applicable confidentiality data processing and security terms), as reasonably required for Google to provide technical support in accordance with the TSSG applicable to each Product; and where reasonably required in order to migrate the Customer if it wishes to purchase Products directly from Google or another Google-authorized partner of that Product.
3. If Google fails to comply with the SLA, Customer will only be eligible to receive those remedies set out under the Google TOS and must request such remedies directly from Distributor Authorized Reseller.

Distributor Authorized Reseller will:

1. only process personal data in relation to which the Customer is the data controller in accordance with written instructions from or on behalf of that Customer, unless EU or EU Member State law to which Distributor Authorized Reseller is subject requires other processing of that personal data, in which case Distributor Authorized Reseller will inform the Customer (unless that law prohibits Distributor Authorized Reseller from doing so on important grounds of public interest);
2. not process that personal data for any purpose other than for the performance of Distributor Authorized Reseller’s obligations under the Distributor Authorized Reseller Agreement or the Customer Agreement;
3. ensure that appropriate technical and organizational measures are taken to avoid unauthorized or unlawful processing of that data and against loss or destruction of, or damage to, that personal data;
4. ensure all of Distributor Authorized Reseller’s employees, agents and contractors who will have access to that personal data have committed themselves to confidentiality or are otherwise under an appropriate obligation of confidentiality;
5. not, by any act or omission, place that Customer in breach of the European Data Protection Legislation;
6. inform that Customer promptly and without undue delay of any data protection breaches or unauthorized or unlawful processing, loss, or destruction of, or damage to, that personal data;
7. obtain prior consent to engage any third party subcontractor to process that personal data on behalf of the Customer, and ensure such third party subcontractor only uses and accesses that data in accordance with the terms of the Customer Agreement and is bound by written obligations requiring it to provide at least the level of data protection required under Section 3.1(c) of Exhibit A (Minimum Terms) of the Addendum;
8. taking into account the nature of the processing, assist the Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of the Customer’s obligations under the European Data Protection Legislation to respond to requests for exercising the data subject’s rights;
9. assist the Customer in ensuring compliance with any applicable obligations under the European Data Protection Legislation related to security; breach notification; data protection impact assessments and prior consultation with the supervisory authorities, taking into account the nature of processing and the information available to Distributor Authorized Reseller;
10. at the choice of the Customer, delete or return all the personal data to Customer after the end of the provision of the Services, and delete existing copies unless prohibited from doing so by applicable EU or EU member state law;
11. as from 25 May 2018, make available to the Customer all information necessary to demonstrate Distributor Authorized Reseller’s compliance with the obligations imposed by the Customer Agreement in respect of the personal data and allow for and contribute to audits, including inspections, conducted by Customer or another auditor mandated by Customer; and
12. not process, or cause to be processed, that personal data outside the European Economic Area unless Distributor Authorized Reseller adopts a compliance solution that achieves compliance with the terms of Article 25 of the Directive or Article 44 of the GDPR (as applicable).

Interpretation. The terms “processing”, “personal data”, “processor” and “controller” as used in this Part B have the meanings given in the European Data Protection Legislation.

Infoblox End User Terms

The customer shall also be bound by the End User Terms located at www.infoblox.com/company/legal, which are incorporated herein by reference.  The customer’s use of the products and services is governed by the applicable End User Terms

Imperva End User Terms 

The customer shall also be bound by the end user license agreement located at https://www.imperva.com/legal/license-agreement/, which is incorporated herein by reference.

Infosec Institue, Inc. End User Terms 

Customer’s use of the Courseware is subject to Customer’s acceptance of the terms and conditions of Infosec’s EULA, https://www.infosecinstitute.com/infosec-license-agreement/ , the terms of which are fully incorporated by reference herein.

Kontakt.io End User Flow-Down Terms

The terms and conditions under which Partner licenses Kontakt.io Products to End Users will be no less   restrictive nor more favorable than the following terms. All capitalized terms used herein are as defined as follows:

(a) Documentation: All written materials regarding the design, specifications, or use of the Products (as defined below) as may be developed by Kontakt.io in regard to such Products.

(b) Hardware: All IoT edge devices, wireless beacons, gateways and sensors, networking devices, any other hardware provided by Kontakt.io, and any Documentation relating to any of the foregoing.

(c) Software: Kontakt.io KIO Cloud, Simon Apps Cloud, mobile applications, web applications, and SDKs, including Software delivered as a Service, any other software provided by Kontakt.io and any Documentation relating to any of the foregoing.

(d) Professional Services: All customization, integration, maintenance, training, consulting, installation/field support, any other professional services provided by Kontakt.io, and any Documentation relating to any of the foregoing.

(e) Products: All Kontakt.io Beacon devices, IoT devices, Software, Hardware, and equipment specified in this Agreement and the Exhibits.

(f) Services: All Kontakt.io consultation, development, implementation, support, or other professional services which may be delivered for a fee or not, to End Users or Partners.

(g) End User/s: The person, entity, or organization, whether singular or plural, that seeks to use the Products and Services, either stand-alone or in connection with third parties solutions.

(h) EULA: The Kontakt.io Software End User License Agreement, as may be updated from time to time by Kontakt.io, a form which is available online, here: https://kontakt.io/terms-of-service/

1. End User License. End User shall be bound by the Kontakt.io End User License Agreement located at https://kontakt.io/terms-of-service/ as may be updated from time to time, in order to gain access, use and utilize from the Kontakt.io software Products
2. Ownership; Restrictions on Use
   1. Ownership. Any Software licensed hereunder including software that is embedded into Hardware products, shall be in object code form only, all subject to the following terms and conditions during the term of this End User License. This End User License confers no title or ownership and is not a sale of any rights in the Products. All rights not expressly granted to End User are reserved solely to Kontakt.io and/or its licensors. Nothing herein should be construed as granting End User, by implication, estoppel or  otherwise, a license relating to the Products other than as expressly stated in this End User License.
   2. Restrictions. End User agrees that it will not (i) reverse engineer, disassemble, decompile or attempt to derive the architecture or design, or any source code contained in the Products, (ii) modify the Products, (iii) otherwise translate or use the Products except as specifically allowed by this End User License, or allow any person or entity (whether with or without consideration) the right to do any of the foregoing; (iv) sublicense, transfer and/or assign the Products to any third party, whether with or without consideration; (v) render any services to third parties using the Products; (vi) remove or in any manner alter any product identification, proprietary, trademark, copyright or other notices contained in the Products; or (vii) allow any third parties to use the Products. End User may not make any copies of the Products or any portions thereof.
      
      
3. Proprietary Rights, Products and Derivative Works. Kontakt.io (or its licensors, as applicable) will retain all title to and ownership of the Products (and Third Party Software or Hardware), all related concepts, technical know-how, and all modifications, customizations, revisions, bug fixes, enhancements, improvements and derivative works (collectively, the “Derivative Works”) thereof developed by Kontakt.io or anyone else, including all Intellectual Property Rights (as defined below) and, except for the expressed limited license granted hereunder, End User shall have no rights in or claims with respect thereto. “Intellectual Property Rights” means any patent, patent applications, trade secret, trademark, copyright, industrial design or any other intellectual property right registered or unregistered in any country throughout the world, and all related goodwill. To the extent it shall be determined that End User has any right in connection with the Products other than the limited specific license hereunder, End User hereby irrevocably: (i) assign to Kontakt.io, whenever and in perpetuity, any right, title and interest, whether now existing or later arising, that End User may have in or to the Products and/or related Intellectual Property Rights; and (ii) agree to take any lawful action, which Kontakt.io reasonably requests to vest or protect End User’s right, title and interest in the Products and any Derivative Works (at End User’s sole cost).
   
   
4. Limited Warranty, Limitation of Liability and Indemnification.
   1. Warranty. Kontakt.io represents and warrants to End User that during the term of this End User License (the “Warranty Period”), the Products shall substantially conform to the applicable Documentation. Unless otherwise mutually agreed between the parties in writing, the warranty period for each Hardware Product shall be twelve (12) months from the date such Product is shipped from Kontakt.io’s facility or the date title to such Product passes to the End User, whichever date is earlier (such period referred to herein as the “Warranty Period”). Kontakt.io reserves the right to change a warranty period for a specific Product; provided that only purchase orders placed after the effective date of such change shall be affected. Kontakt.io warrants that, for the Warranty Period: (1) all components of such Product, except software components, shall be free from faulty workmanship and defective materials; and (2) all software components of such Product shall substantially conform to the written documentation designated by Kontakt.io for use with such software components. The warranties provided by Kontakt.io in this Section are the only warranties provided by Kontakt.io with respect to the Products, and may be modified only by a written instrument signed by Kontakt.io and accepted by the End User.
   2. Limitations on Warranty. THE FOREGOING WARRANTY DOES NOT APPLY TO ANY DEFECTS, DAMAGES, FAILURES OR MALFUNCTIONS TO ALL OR ANY PART OF THE PRODUCTS RESULTING FROM: (I) NEGLIGENCE, ABUSE, OR MISAPPLICATION OF THE PRODUCTS; (II) USE OF THE PRODUCTS OTHER THAN AS SPECIFIED IN THE APPLICABLE DOCUMENTATION OR OTHERWISE IN OTHER THAN ITS NORMAL AND CUSTOMARY MANNER; (III) ANY ALTERATIONS, MODIFICATIONS OR ADAPTATIONS OF THE PRODUCTS PERFORMED BY ANYONE OTHER THAN Kontakt.io OR PARTNER; (IV) ANY UNAUTHORIZED COMBINATION OR INTERFACING OF THE PRODUCTS WITH OTHER HARDWARE OR SOFTWARE; (IV) ANY ACT OG GOD, ACCIDENT, FIRE OR OTHER HAZARD; OR (V) OTHER CAUSES BEYOND THE REASONABLE CONTROL OF Kontakt.io . EXCEPT AS EXPRESSLY SET FORTH IN THIS END USER LICENSE, Kontakt.io DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS, AND WARRANTIES WITH RESPECT TO THE PRODUCTS, INCLUDING CONDITION, QUALITY, CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, THE EXISTENCE OF ANY LATENT OR PATENT DEFECTS, ANY NEGLIGENCE, AND MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE. End User’s sole and exclusive remedy for breach of the warranties set forth in this Section shall be that Kontakt.io, at Kontakt.io’s sole discretion, will either: (i) repair, replace or provide a reasonable workaround for the defective and/or non-conforming portion of the Products within thirty (30) days after receiving written notice of the breach of the warranty which describes in detail the specific nature of the defect and/or non-conformity: or (ii) refund all amounts paid by End User for such Products (after deducting amounts paid for actual use of the Products by End User). To claim the benefit of this warranty, End User must give Partner written notice of any breach of the warranty (as aforesaid) within the Warranty Period.
      
5. Third Party Beneficiary; No Indirect Warranty, Indemnification or Liability. The parties acknowledge that Kontakt.io (as a licensor of Partner) and its third-party licensors are third party beneficiaries of this End User License, entitled to enforce their respective provisions on behalf of Partner. Notwithstanding the foregoing, Kontakt.io shall provide no warranty or indemnification to End User and shall have no liability to End User under this End User License.

LogicMonitor – End User Terms

Customer agrees that its use of the referenced products and services is subject to

LogicMonitor’s EULA at https://www.logicmonitor.com/terms_files/EULA.pdf, unless Customer

and LogicMonitor have negotiated and entered into a separate agreement.

Macabacus, Inc. End User License Agreement

The customer shall also be bound by the End User License Agreement located at https://macabacus.com/legal/eula, which is incorporated herein by reference.

Microsoft Terms

Microsoft Customer Agreement

The customer shall also be bound by the Microsoft Customer Agreement and other terms located at https://www.microsoft.com/licensing/docs/customeragreement and https://azure.microsoft.com/en-us/support/legal/ which are incorporated herein by reference. Microsoft may update these terms from time to time.

HBS Microsoft Cloud Subscription Software Terms

The following outlines the terms and conditions of your purchase between Heartland Business Systems, LLC, a Wisconsin limited liability company (hereafter called “Heartland”) and you (hereafter called “Customer”).  The term of this agreement shall begin on the subscription start date and remains in effect until the subscription end date. Microsoft cloud licensing outlined must remain under the management of Heartland until subscription end date.

1. Seat-Based Cloud Subscription for Commercial CSP:
   
   

   Term:	12-month	30-day
   Billing Frequency:	Upfront annual or Monthly	Monthly
   Seat adjustments policy & process:	Seat adjustment policy: ·   Increases: as needed and responsible for additional seat(s) for the duration of the subscription term ·   Decreases: on an annual basis up to 7 calendar days after new subscription start date for a prorated refund, regardless of billing frequency; adjustments made after 7 calendar days are not eligible for a refund. Process: Can be performed independently by Customer via the HBS Microsoft Cloud Licensing Management Portal (preferred method) or requested via email.	Seat adjustment policy: ·   Increases: as needed ·   Decreases: on a 30-day basis up to 7 calendar days after new subscription start date for a prorated refund Process: Can be performed independently by Customer via the HBS Microsoft Cloud Licensing Management Portal (preferred) or requested via email.
   Renewal:	Automatic renewal for additional one (1) year terms unless terminated by Customer by providing at least fourteen (14) calendar days’ written notice prior to the end of the 12-month term.	Automatic renewal for addition thirty (30) day term unless terminated by Customer by providing at least fourteen (14) calendar days’ written notice prior to the end of the 30-day term.
   Pricing:	Heartland will set pricing and payment terms, per order, and subject to change by Heartland effective on or about each 12-month anniversary date.	Heartland will set pricing and payment terms, per order, based on the terms set forth by Microsoft, and subject to change by Microsoft effective on or about each 30-day anniversary date. Pricing subject to a premium fee, per the terms of Microsoft.

   
   
   
2. Seat-Based Subscription for Nonprofit, Government, Academic CSP:
   
   

   Term:	12-month
   Billing Frequency	Upfront annual or Monthly
   Seat adjustments policy & process:	Seat adjustment policy: ·   Increases: as needed ·   Decreases: as needed Process: Can be performed independently by Customer via the HBS Microsoft Cloud Licensing Management Portal (preferred method) or requested via email.
   Renewal:	Automatic renewal for additional one (1) year terms unless terminated by Customer by providing at least fourteen (14) calendar days’ written notice prior to the end of the 12-month term.
   Pricing:	Heartland will set pricing and payment terms, per order, and subject to change by Heartland effective on or about each 12-month anniversary date.

   
   
   
3. Pricing: Heartland will set pricing and payment terms, per order, and is subject to change effective on or about each anniversary date per term of the agreement and/or in conjunction with Microsoft pricing changes
4. Licensing Model Changes: If Microsoft implements a global licensing policy change, HBS shall reserve the right to modify customers licensing, upon written notification, to remain compliant.
5. HBS Cloud Licensing Management Portal: The Global Admin or Billing Admin of the customer’s tenant can leverage the HBS Cloud Licensing Management Portal to adjust quantities based on subscription term for applicable cloud licenses. HBS Engineers or HBS Consultants with Global Admin privileges can adjust on behalf of the customer.  As a condition of this agreement, customer agrees to allow Heartland to adjust licenses on an as needed based on customer request via email or verbal (with written follow up).
6. Paused Subscriptions: Heartland shall have the right to immediately suspend any subscription(s) if customer is delinquent on invoice payment terms.
7. Azure Consumption Services: Pricing provided for Azure services are based on estimated consumption at Microsoft pricing to date. Final costs, which are determined by Microsoft and subject to change, will be invoiced by HBS monthly based on actual consumption. If  customer removes Heartland’s foreign principal permissions in the tenant, the customer shall be required to pay Heartland a monthly fee of 15% of the monthly Azure consumption until such time as the new foreign principal is assigned.
8. Azure Reserved Instances: Pricing provided for Azure Reserve Instances are based on Microsoft pricing to date. Final costs, which are determined by Microsoft and subject to change, will be invoiced by HBS monthly based reserved pricing. Early termination may be subject to a fee, dictated by Microsoft. Refunds cannot exceed $50,000 and are calculated based the purchase price or current price of the reservation, whichever is lower and are subject to Microsoft approval.

HBS Microsoft Cloud Perpetual Software Terms

1. Perpetual (One-Time) for Commercial, Education or Charity

Term:	Not applicable; One-time purchase of a perpetual licenses
Return Policy:	30-day return with refund; subject to return window changes by Microsoft
Pricing:	Heartland will set pricing and payment terms, per order, and subject to change by Heartland.

HBS’s Microsoft CSP Support Terms:

1. Microsoft Cloud Solution Provider (“CSP”) Break/Fix Support
   
   

   Service Eligibility	Support for break/fix issues of Microsoft Cloud licensed through Microsoft CSP with Heartland, assuming root-cause is caused by Microsoft. As part of Microsoft CSP, Customer does not have direct access to Microsoft Engineering Support. Eligibility:  1) Active license subscription, with HBS Delegated Admin, for cloud CSP products currently licensed with HBS. 2) Completion of CSP Help Desk Onboarding. 3) Correct ticket routing using the provided contact information
   Services Excluded	Support for implementation, portal changes, user license creation, license quantity adjustments, setup changes, design engineering, education, security changes, roadmap upgrades, application customizations, issues caused by customer misconfiguration or incompatibility with 3rd party hardware or software, or any other non-Microsoft-caused issue are not included and will be billed separately by Heartland.
   Escalation	Should Microsoft technical assistance be required, Heartland will open a support case on customer’s behalf.
   Eligible Support Contacts	As part of the onboarding process, Customer is required to assign no more than three contacts eligible to leverage the Heartland CSP Help Desk.  It is recommended that such contacts be knowledgeable in the Customer’s email hosting/anti-virus software, print server, remote desktop services, operating system, local or domain admin credentials, if applicable.

   
   
   
2. Scenario of Support Services: Heartland obtains the right to escalate tickets to the next Tier as well as deem a ticket to be out-of-scope of free services as their discretion.
   
   

   Sample Scenario	Coverage
   Reactive services in response to Microsoft-caused errors on cloud products via Microsoft CSP, including but not limited to stop/blue screen errors, bugs, patches, updates incompatibility	Included
   End-user, setup, or customization-caused error	No
   General application administration services including but not limited to username/password reset, user management	No
   Application enhancement services including but not limited to training, capability & security discussion, general consultation	No
   Support for on-prem or key-based products licensed any way except Microsoft CSP including but not limited to Web Direct, Volume (Open Value or Open Business), Enterprise Agreement or Perpetual On-Premise CSP	No

   
   

Microsoft Partner Support End User Terms

1. Disclaimer of Warranties. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MICROSOFT AND HEARTLAND DISCLAIM AND EXCLUDE, ON THEIR BEHALF AND ON BEHALF OF THEIR SUPPLIERS AND SUBCONTRACTORS, ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF TITLE, NON INFRINGEMENT, SATISFACTORY CONDITION, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO ANY SERVICES, SERVICE DELIVERABLES, HOTFIXES, PRODUCTS, OR ANY OTHER MATERIALS OR INFORMATION.
2. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN ANY WORK ORDER, NEITHER MICROSOFT NOR HEARTLAND NOR THEIR CONTRACTORS WILL BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL (INCLUDING WITHOUT LIMITATION, DAMAGES FOR BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION), SPECIAL, OR INCIDENTAL DAMAGES OR DAMAGES FOR LOSS OF PROFITS OR REVENUES ARISING IN CONNECTION WITH THE AGREEMENT, SERVICES DESCRIPTION, THIS WORK ORDER, ANY STATEMENT OF SERVICES, SERVICES, SERVICE DELIVERABLES, HOTFIXES, PRODUCTS, OR ANY OTHER MATERIALS OR INFORMATION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH POSSIBILITY WAS REASONABLY FORESEEABLE.  IN ANY EVENT, WHATEVER THE LEGAL BASIS FOR THE END USER’S CLAIMS, THE TOTAL LIABILITY OF MICROSOFT AND HEARTLAND (AND THAT OF THEIR SUPPLIERS AND SUBCONTRACTORS) WILL BE LIMITED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TO DIRECT DAMAGES UP TO THE AMOUNT PAID IN THE AGGREGATE FOR THE SERVICES GIVING RISE TO THE CLAIMS.

Microsoft SPLA

TERMS AND CONDITIONS REGARDING USE OF MICROSOFT SOFTWARE – SPLA

This document governs the use of Microsoft software, which may include associated software, media, printed materials, and “online” or electronic documentation (individually and collectively, “Products”) provided by Heartland Business Systems, LLC. (hereinafter referred to as “Customer”). Customer does not own the Products and the use thereof is subject to certain rights and limitations of which Customer must inform you. Your right to use the Products is subject to the terms of your agreement with Customer, and to your understanding of, compliance with, and consent to the following terms and conditions, which Customer does not have authority to vary, alter, or amend.

1. DEFINITIONS.

“Client Software” means software that is installed on a Device that allows the Device to access or utilize the Products.

“Device” means each of a computer, workstation, terminal, handheld PC, pager, telephone, personal digital assistant, “smart phone,” server or any other hardware where software can be installed that would allow End User to interact with the Product.

“End User” means an individual or legal entity that obtains Software Services directly from Customer, or indirectly through a Software Services Reseller.

“Redistribution Software” means the software described in Paragraph 4 (“Use of Redistribution Software”) below.

“Software Services” means services that Customer provides to you that make available, display, run, access, or otherwise interact, directly or indirectly, with the Products. Customer must provide these services from data center(s) through the Internet, a telephone network or a private network, on a rental, subscription or services basis, whether or not Customer receives a fee. Software Services exclude any services involving installation of a Product directly on any End User device to permit an End User to interact with the Product.

2. OWNERSHIP OF PRODUCTS. The Products are licensed to Customer from an affiliate of the Microsoft Corporation (collectively “Microsoft”). Microsoft Products are protected by copyright and other intellectual property rights. Products and other Product elements including but not limited to any images, photographs, animations, video, audio, music, text and “applets” incorporated into the Products are owned by Microsoft or its suppliers. You may not remove, modify or obscure any copyright trademark or other proprietary rights notices that are contained in or on the Products. The Products are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Your possession, access, or use of the Products does not transfer any ownership of the Products or any intellectual property rights to you.
3. USE OF CLIENT SOFTWARE. You may use the Client Software installed on your Devices only in accordance with your agreement with Customer and the terms under this document, and only in connection with the Software Services, provided to you by Customer. The terms of this document permanently and irrevocably supersede the terms of any Microsoft End User License Agreement that may be presented in electronic form during the installation and/or use of the Client Software.
4. USE OF REDISTRIBUTION SOFTWARE. In connection with the Software Services provided to you by Customer, you may have access to certain “sample,” “redistributable” and/or software development software code and tools (individually and collectively “Redistribution Software”). You may use, copy and/or install the Redistribution Software only in accordance with the terns of your agreement with Customer and this document and/or your agreement with Customer.
5. COPIES. You may not make any copies of the Products; provided, however, that you may (a) make one copy of Client Software on your Device as expressly authorized by Customer; and (b) you may make copies of certain Redistribution Software in accordance with Paragraph 4 (Use of Redistribution Software). You must erase or destroy all such Client Software and/or Redistribution Software upon termination or cancellation of your agreement with Customer, upon notice from Customer or upon transfer of your Device to another person or entity, whichever occurs first. You may not copy any printed materials accompanying the Products.
6. LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION AND DISASSEMBLY. You may not reverse engineer, decompile, or disassemble the Products, except and only to the extent that applicable law, notwithstanding this limitation, expressly permits such activity.
7. NO RENTAL. You may not rent, lease, lend, pledge, or directly or indirectly transfer or distribute the Products to any third party, and may not permit any third party to have access to and/or use the functionality of the Products except for the sole purpose of accessing the functionality of the Products in the form of Software Services in accordance with the terms of this agreement and any agreement between you and Customer.
8. TERMINATION. Without prejudice to any other rights, Customer may terminate your rights to use the Products if you fail to comply with these terms and conditions. In the event of termination or cancellation of your agreement with Customer or Customer’s agreement with Microsoft under which the Products are licensed, you must stop using and/or accessing the Products, and destroy all copies of the Products and all of their component parts within thirty (30) days of the termination of your agreement with Customer.
9. NO WARRANTIES, LIABILITIES OR REMEDIES BY MICROSOFT. Microsoft disclaims, to the extent permitted by applicable law, all warranties and liability for damages by Microsoft or its suppliers for any damages and remedies whether direct, indirect or consequential, arising from the Software Services. Any warranties and liabilities are provided solely by Customer and not by Microsoft, its affiliates or subsidiaries.
10. PRODUCT SUPPORT. Any support for the Software Services is provided to you by Customer or a third party on Customer’s behalf and is not provided by Microsoft, its suppliers, affiliates or subsidiaries.
11. NOT FAULT TOLERANT. The Products are not fault- tolerant and are not guaranteed to be error free or to operate uninterrupted. You must not use the Products in any application or situation where the Product(s) failure could lead to death or serious bodily injury of any person, or to severe physical or environmental damage (“High Risk Use”).
12. EXPORT RESTRICTIONS. The Products are subject to U.S. export jurisdiction.  Customer must comply with all applicable laws including the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. For additional information, see http://www.microsoft.com/exporting/.
13. LIABILITY FOR BREACH. In addition to any liability you may have to Customer, you agree that you will also be legally responsible directly to Microsoft for any breach of these terms and conditions.
14. INFORMATION DISCLOSURE. You must permit Customer to disclose any information requested by Microsoft under the Customer’s Agreement. Microsoft will be an intended third party beneficiary of your agreement with Customer, with the right to enforce provisions of your agreement with Customer and to verify your compliance.

Motorola End User Terms 

a. Customer acknowledges that Customer’s use of the Subscription Services may include the collection of information, including personal data, which Heartland or Motorola may process in providing Subscription Services. Where Customer provides personal data to Heartland or Motorola, as may be necessary to facilitate resale of Subscription Services to the Customer, Customer shall have sole responsibility for (i) the lawfulness of any transfer of personal data to Heartland or Motorola, (ii) the accuracy, quality, and legality of personal data provided to Heartland or Motorola; (iii) the means by which the personal data was acquired, and (iv) the provision of any required notices to, and obtaining any necessary acknowledgements, authorizations or consents from the Customer and its users.

b. Customer bears responsibility for compliance with any laws and regulations regarding tracking; location-based services; gathering, storing, processing, transmitting, using or misusing; or otherwise handling personally identifiable information (PII), including information about the users of the Solution or citizens in the general public. Further, it is Customer’s responsibility to comply with any laws or regulations prescribing the measures to be taken in the event of breach of privacy or accidental disclosure of any PII. Enacting and enforcing any internal privacy policies for the protection of PII, including individual disclosure and consent mechanisms, limitations on use of the information, and commitments with respect to the storage, use, deletion and processing of PII in a manner that complies with applicable laws and regulations will be Customer’s responsibility. Heartland and Motorola will not evaluate the sufficiency of such policies and disclaim any responsibility or liability for privacy practices implemented by Customer, or lack thereof. Customer acknowledges and agrees that Subscription Services and the Solution are not designed to ensure individual privacy. Customer acknowledges and agrees that the Solution may enable visibility to PII, as well as physical location of individuals. Neither Heartland nor Motorola can provide any assurance of individual privacy in connection with the Solution. Customer will hold Heartland and Motorola harmless from any and all liability, expense, judgment, suit, or cause of action, which may accrue against Heartland or Motorola for causes of action for damages related to tracking, location-based services, breach of privacy, and the use or misuse of PII, provided that Heartland or Motorola shall give Customer prompt, written notice of any such claim or suit.

c. Motorola reserves the right to discontinue or suspend Subscription Services at any time without notice to a Customer that misuses the Subscription Services, jeopardizes the licensed Solution or public safety in any way.

“Solution” means collectively, the Software, servers and/or any other hardware or equipment operated by Motorola and used in conjunction with the Subscription Services.
“Subscription Services” means software as a service or cloud software offerings, platform as a service offerings or other cloud-based offerings, as applicable (including any hardware and/or software provided by Motorola with the service offerings that is required for the Customer to access or use the service offerings) made available by Motorola to Heartland for resale to the Customer, the nature and scope of which are more fully described in the Documentation or other Solution materials provided by Motorola, as applicable.

“Software” (a) means proprietary software in object code format, and adaptations, translations, decompilations, disassemblies, emulations, or derivative works of such software; (b) means any modifications, enhancements, new versions and new releases of the software provided by Motorola; and (c) may contain items of software owned by a third-party supplier. The term “Software” does not include any third-party software provided under separate license or third-party software not licensable under the terms of the Agreement.

“Documentation” means product and software documentation that specifies technical and performance features and capabilities, and the user, operation and training manuals for the Software (including all physical or electronic media upon which such information is provided). With respect to Subscription Services, “Documentation” means the technical materials provided by Motorola to Heartland in hard copy or electronic form, describing the use and operation of the Solution and Subscription Services, including any technical manuals, but excluding any sales, advertising or marketing materials or proposals.

NetApp Terms

The customer shall also be bound by NetApp’s terms located at http://netapp.com/us/how-to-buy/stc.html, which are incorporated herein by reference.

NetBrain End-User Terms

The customer shall also be bound by the Perpetual End User License Agreement or Professional Services Terms and Conditions located at https://www.netbraintech.com/legal-tc/, which are incorporated herein by reference.

Numonix, LLC Terms

The customer shall also be bound by the Subscription Services Agreement and other terms located at https://numonix.cloud/Compliance/, which are incorporated herein by reference.

Nutanix End User Terms

The customer shall also be bound by the Nutanix License and Services Agreement located at https://www.nutanix.com/legal/eula, which is incorporated herein by reference.

PairSoft Terms

Client agrees that its access or use of PairSoft products, and, if applicable, services is subject to and governed by the PairSoft Master Software and Services Agreement set forth at https://pairsoft.com/MSSA/PairSoftMSSA-v2.1.htm 

Panatrack Terms

The customer shall also be bound by the terms located at http:/www.panatrack.com/scly/, which are incorporated herein by reference.

Planar Systems, Inc. Terms

All claims by customer against Planar Systems, Inc. or Heartland must be filed against Planar Systems, Inc. or Heartland within one year from the date of the events that gave rise to the claim or be discharged and barred forever.

PreVeil End User Terms

PreVeil and the customer (“Customer”) agree to the terms of the Enterprise Terms of Use available at http://www.preveil.com/terms-of-use-enterprise (“Terms”) and the Service Level Agreement available at www.preveil.com/service-level-agreement/ (“SLA”) which are each hereby incorporated by reference, and together with this Order Form, form a binding agreement between PreVeil and Customer (the “Agreement”).  The Agreement constitutes the entire agreement between PreVeil and the Customer governing the products and services identified above, to the exclusion of all other terms.  To the extent there is any conflict between this Order Form, the Terms, and the SLA, the order of precedence for conflict resolution in descending order shall be as follows: (i) this Order Form, (ii) the Terms, and (iii) the SLA.  The terms of this Order Form are PreVeil confidential information and shall not be disclosed by Customer to any third party without PreVeil’s prior written consent.  Customer is licensed to use the quantity of PreVeil products and services set forth above during the term set forth above.

Pure Storage End User Terms

For sales of Portworx branded Software Only Products, the customer shall also be bound by the Portworx End User License Agreement located at https://portworx.com/end-user-license-agreement, which is incorporated herein by reference.

Rapid7 End User Terms

End user acknowledges and agrees that use of the products and/or services are governed by the applicable terms and conditions available at https://www.rapid7.com/legal/terms.  All orders are non-refundable and non-cancelable.

Red Hat Terms

End User shall also be bound by the agreement set forth at www.redhat.com/agreements, as updated by Red Hat from time to time, as a condition to the distribution of the Red Hat Products to such End User.

Reinvent End User Terms

The end user shall comply with and be bound by, Reinvent’s Acceptable Use Policy (AUP) and Privacy Policy, available at https://www.reinventtelecom.com.  Reinvent in its sole discretion may modify the AUP and Privacy Policy.  Any modifications shall be effective immediately upon publishing.

The end user acknowledges that any E911 calling capability associated with Service:

1. may not be available during an electrical power outage affecting the Service location;
2. will not be available if Customer’s broadband connection service has been disrupted and not restored;
3. will not be available if Service has been discontinued for any reason, including Customer nonpayment;
4. may not be available at locations other than the location for which a Service address has been furnished to Reinvent;
5. may not be available or may be routed to emergency personnel unable to respond, if Customer has disabled or damaged Integrated Access Device or removed it to a location other than one for which a Service address has been provided to Reinvent; or
6. may be delayed or unavailable due to network congestion or other problems affecting the network.

The end user agrees that Heartland and any wholesale provider used by Heartland may share End User Subscriber Data within its business operations (e.g. parent and affiliate corporations) and with businesses acting on Heartland’s behalf to deliver Services to end user. End user agrees that Heartland and any wholesale provider used by Heartland shall have a limited right to use its Subscriber Data as necessary for Heartland to perform its obligations under this Agreement, including sharing Subscriber Data with any carrier possessing a Letter of Authorization from end user.

Subscriber Data means information that relates to the quantity, technical configuration, type, destination, location, and amount of use of a telecommunications service subscribed to by any customer of a telecommunications carrier, and that is made available to the carrier by the customer solely by virtue of the carrier-customer relationship; and information contained in the bills pertaining to telephone exchange service or telephone toll service received by a customer of a carrier; except that such term does not include subscriber list information.

Saas Alerts, Inc. Terms of Use

SaaS Alerts, Inc. (“SA”) provides products and services (“Products”) that are used to monitor the data, files and other information associated with third party SaaS Applications such as Salesforce, Microsoft 0365 and Google Workspace (“Monitored SaaS Applications”).  The Product gathers “Log Data” from the Monitored SaaS Applications regarding use of the Monitored SaaS Application.  The Product then creates “Event Data” from such Log Data, which is stored by SA during a Subscription Term for up to one (1) year.  The Product will provide information about the Event Data for review by the administrator of the Product in the form of “Alerts.” SA uses Log Data, Event Data and Alerts, in SA’s reasonable discretion such as, for example, to provide the Services, the improvement of the Product, research and analysis.  SA does not access or process customer data stored on or created through the Monitored SaaS Applications (such as, for example, emails or files shared on a drive).  Should SA share Log Data, Event Data and/or Alerts with third parties, SA shall anonymize such data. 

These Customer Terms (“Terms“) apply to you as the person or entity that owns, licenses, or lawfully controls the Monitored SaaS Application (“you” or “Customer”). SA does not provide the Product directly to you. The Product is sold and provided by SA directly to the reseller/managed service provider who will use and manage the Product on your behalf (“Administrator”). 

1. RIGHTS TO THE PRODUCT

You acknowledge that SA and its licensors own all intellectual property rights in and to the Product, the Event Data and the Alerts.  You will not engage in or authorize any activity that is inconsistent with such ownership.  The Product is used in conjunction with third party technology, such as the Monitored SaaS Applications and potentially API integrations that are not created by SA (“Third Party Technology”).  The use of Third Party Technology is typically subject to such third parties’ license terms or other terms.  SA has no responsibility or liability regarding the Monitored SaaS Applications or other Third Party Technology, which is licensed separately from the Product. 

2. RIGHTS AND RESPONSIBILITIES REGARDING THE PRODUCT

1. SA’s Rights. In the event that SA reasonably believes Product use violates these terms, may disrupt or threaten the operation or security of any computer, network, system or the Product, may subject SA to liability, or may subject SA or any third party to damage, SA reserves the right to refuse or disable access to the Product. SA may restrict access to the Product as required to comply with law or any judicial, regulatory or other governmental order or request. SA will use reasonable efforts to contact the Administrator prior to taking such action.
2. Anonymized Data. Anonymization is a data processing technique that removes or modifies personally identifiable information and results in data that cannot be associated with any individual or Customer organization (“Anonymized Data”). SA may compile, evaluate and process Anonymized Data to: provide the Products; provide insights to our customers; create trend analysis and other similar analysis; develop and publish white papers, reports, and databases summarizing the foregoing, and; generally for any purpose related to our business. SA shall own all rights, title and interest in and to such Anonymized Data and other statistical information.
3. Right to Change Products. SA may make changes to its Product through updates and upgrades that offer new features, functionality, and efficiencies (“Enhancements“). SA reserves the right to add new Products and Enhancements and to replace or discontinue Products or Enhancements at any time.

3. ADMINISTRATOR

1. SA’s Relationship with Administrators.  SA will interact with the Administrator(s) to operate and manage use of the Product. You expressly agree that SA may rely on the instructions and authorization of the Administrator with respect to use and support of the Product.  You are not a third party beneficiary of any agreement between SA and an Administrator.  An Administrator is not an agent of SA and is not authorized to make any representations or warranties on behalf of SA regarding the Product or its use.
2. Your Relationship With Administrators. You are responsible for instructing and authorizing the Administrator with respect to use of the Product including access, management and transition assistance upon termination of any relationship between or among Administrator, you and/or SA.

4. YOUR DIRECT USE OF A PRODUCT

If the Administrator authorizes you to access or use a Product directly, through the Product interface, you are responsible for all actions you take with respect to use of the Product including settings, management, monitoring, and actions or non-action taken in response to Alerts.  SA may rely on your instructions and authorizations as an Administrator of the Product.  SA reserves the right to provide support only to the primary Administrative account associated with your business entity.

5. SECURITY

1. SA’s Security Measures.  SA has implemented and maintains physical, technical and administrative measures designed to help secure the Product against accidental or unlawful loss, access or disclosure. However, no password-protected system of data storage and retrieval can be made entirely impenetrable and you acknowledge and agree that despite the reasonable measures employed, the Products are not guaranteed against all security threats or other vulnerabilities.
2. Administrator’s Security Measures. You and/or the Administrator are responsible, and in no event will SA be responsible, for any physical, administrative, or technical controls related to Products or Content not under the exclusive control of SA, including but not limited to the Monitored SaaS Applications, passwords or other access credentials, and LAN or internet connectivity.

6. INDEMNIFICATION

You will defend, indemnify and hold harmless SA from and against any loss, cost, liability or damage, including attorneys’ fees, for which SA becomes liable arising from any claim relating to your acts, omissions, equipment or computing environment.

7. LIMITATIONS OF LIABILITY 

THE SA PRODUCT, INCLUDING ANY THIRD PARTY TECHNOLOGY RELATED THERETO, ARE PROVIDED “AS IS.” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SA DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, DATA ACCURACY, DATA SECURITY, QUIET ENJOYMENT, TITLE, AND/OR NON-INFRINGEMENT OR ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. SA DOES NOT WARRANT THAT THE PRODUCT WILL MEET ANY SPECIFIC REQUIREMENTS, THAT THE PRODUCT WILL PROPERLY ALERT TO ALL RELEVANT ACTIVITY OR MALICIOUS EVENTS OR THAT THE OPERATION OF ANY PRODUCT WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.

SA MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE PRODUCT’S COMPLIANCE WITH LAWS AND REGULATIONS SPECIFICALLY APPLICABLE TO ANY USER OR INDUSTRY AND DISCLAIMS ALL LIABILITY ASSOCIATED THEREWITH.

THE PRODUCT MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER RISKS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. SA IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

SA DISCLAIMS ANY DUTIES OF A BAILEE, AND YOU HEREBY WAIVE ALL RIGHTS AND REMEDIES OF A BAILOR (ARISING UNDER COMMON LAW OR STATUTE), RELATED TO OR ARISING OUT OF ANY POSSESSION, STORAGE, TRANSMISSION OR SHIPMENT OF EVENT DATA OR ALERTS.

TO THE FULLEST EXTENT ALLOWED BY LAW, IN NO EVENT WILL SA OR ANY SA LICENSOR OR SUPPLIER BE LIABLE FOR ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR COSTS, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST REVENUES, COSTS OF DELAY, FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR THE COST OF RECREATING THE SAME, EVEN IF SA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL SA BE LIABLE FOR THE PROCUREMENT OF SUBSTITUTE SERVICES OR PRODUCTS, OR

Scribbles ‘Software as a Service’ Terms and Conditions

These ‘Software as a Service’ Terms and Conditions (“SaaS Terms”) between the Customer (as identified on the Order Form) and Scribbles Software, LLC (“Scribbles”) (as identified on the Order Form) along with all referenced schedules, terms and conditions and attachments (collectively, the “SaaS Agreement”) set forth the terms and conditions under which Scribbles will provide the Customer with access to certain applications as set forth on the Order Form (“Application(s)”) and user documentation that Scribbles makes generally available in hard copy or electronic form to its general customer base in conjunction with the subscription of such Applications (“Documentation”). The Applications and the Documentation will hereinafter collectively be referred to as the “Platform.”   

1. SUBSCRIPTION GRANT AND RIGHT OF USE

1.1.   Subscription Grant. Subject to all limitations and restrictions contained herein and the Order Form, Scribbles grants Customer a subscription, software as a service (‘SaaS’), nonexclusive, and nontransferable right to access and operate the object code form of Applications (and use its Documentation) as hosted by Scribbles as described in the Order Form (“Use”) and solely to perform those functions described in the Documentation. For clarity, an “Application” means Scribbles’ proprietary software that is specifically subscribed to Customer pursuant to an Order Form. 

1.2.   Application Specific Terms.  Application to which the Customer subscribes may have specific use, pricing and other terms that will be detailed in the Order Form.

1.3.   Use. Customer will have a limited right to Use the Application solely for its school related purposes for schools owned or operated by the Customer (the “Licensed School(s)”, and solely to perform the functions described in the Documentation. Customer shall not allow any website that is not fully owned by Customer to frame, syndicate, distribute, replicate, or copy any portion of Customer’s website that provides direct or indirect access to the Application and/or to the Platform. Customer’s end customers (the “End Users”) shall have the right to access the Platform so as to provide inputs and to accept outputs from Customer; such access will be conditioned upon each End Users agreement and compliance with certain end user terms, conditions and privacy policies that will be presented to End Users from time to time (collectively the “EULA”).   Unless otherwise expressly permitted in the Order Form and subject to Section 1.5, Customer shall not permit any subsidiaries, affiliated companies, or third parties to access the Platform.    

1.4.   Student End Users. Customer may allow current or former students who currently attend or formerly attended Licensed School, parents or legal guardians of any such current or former students and other third parties to access the Platform as End Users under Customer’s license via a portal (the “Platform Portal”) that provides Platform access and capabilities on a limited basis regarding records or applications related to one or more particular students from the Licensed School. 

1.5.   Additional Restrictions. In no event will Customer disassemble, decompile, or reverse engineer the Application or Confidential Information (as defined herein) or permit others to do so. Disassembling, decompiling, and reverse engineering include, without limitation: (i) converting the Application from a machine- readable form into a human-readable form; (ii) disassembling or decompiling the Application by using any means or methods to translate machine-dependent or machine-independent object code into the original human-readable source code or any approximation thereof; (iii) examining the machine-readable object code that controls the Application’s operation and creating the original source code or any approximation thereof by, for example, studying the Application’s behavior in response to a variety of inputs; or (iv) performing any other activity related to the Application that could be construed to be reverse engineering, disassembling, or decompiling. To the extent any such activity may be permitted pursuant to written agreement, the results thereof will be deemed Confidential Information subject to the requirements of these SaaS Terms. Customer may use Scribbles’ Confidential Information solely in connection with the Application and pursuant to the terms of these SaaS Terms.

1.6.   Authorized Users. Unless otherwise specifically provided in the Order Form, “Authorized Users” will only consist of: (i) employees of Customer, (ii) End Users, and (iii) subject to Section 5 (Confidentiality), third party contractors of Customer who do not compete with Scribbles (“Permitted Contractors”). Customer is fully liable for the acts and omissions of Permitted Contractors and Authorized Users under these SaaS Terms and applicable Order Form.  If Customer become aware of any violation of Customer’s obligations under the SaaS Agreement by any Authorized User, Customer will immediately terminate such Authorized User’s access to the Platform.

1.7.   Customer License Grant. Customer grants to Scribbles a non-exclusive, royalty-free license to access, use, reproduce, modify, perform, display and distribute Customer Data as is reasonable or necessary for Scribbles to perform or provide the Application.  Customer retains ownership of all Customer Data (subject to the rights granted in this Section and in Aggregate Data provision below).

2. PAYMENT

2.1.   Fees.  Customer shall pay Scribbles the fees indicated on the Order Form. Unless otherwise provided in an Order Form, all fees are to be paid to Scribbles within thirty (30) days of the date of invoice. Any late payment will be subject to any costs of collection (including reasonable legal fees) and will bear interest at the rate of one and one-half percent (1.5%) per month (prorated for partial periods) or at the maximum rate permitted by law, whichever is less. If Customer has set up a direct debit, Scribbles will not debit Customer’s designated account before seven (7) days have elapsed from the date of the invoice. If Customer is delinquent on a payment of fees for fifteen (15) days or more, Scribbles may suspend access to the Application and/or the Platform. Complaints concerning invoices must be made in writing within thirty (30) days from the date on the invoice. Invoices will be sent by electronic delivery unless requested otherwise by Customer, additional fees will apply.  Although Customer is not obligated to pay fees on behalf of End Users, Customer agrees that End Users who do not pay fees in accordance with the EULA will not be permitted to access the Platform. 

2.2.   Taxes. All amounts required to be paid hereunder do not include any amount for taxes or levy (including interest and penalties). Customer shall reimburse Scribbles and hold Scribbles harmless for all sales, use, VAT, excise, property, or other taxes or levies which Scribbles is required to collect or remit to applicable tax authorities. This provision does not apply to any taxes for which Customer is exempt, provided Customer has furnished Scribbles with a valid tax exemption certificate.

3. HOSTING AND SECURITY

3.1.   Service Availability. Scribbles will use reasonable efforts to achieve a Monthly Uptime Percentage of at least 99.5% for any calendar month. “Monthly Uptime Percentage” means the total number of minutes in a calendar month minus the number of minutes of Downtime suffered in a calendar month, divided by the total number of minutes in a calendar month. “Downtime” means the time in which any service is not capable of being accessed or used by the Customer, as monitored by Scribbles. 

3.2.   Exclusion from Downtime. The following are not counted as Downtime for the purpose of calculating Monthly Uptime Percentage: (i) Service unavailability caused by scheduled maintenance of the platform used to provide the applicable service (Scribbles will endeavor to provide seven (7) days’ advance notice of service-affecting scheduled maintenance); or (ii) Service unavailability caused by events outside of the direct control of Scribbles or its subcontractor(s), including any force majeure event, the failure or unavailability of Customer systems, the Internet, and the failure of any other technology or equipment used to connect to or access the service.

3.3.   Support Services. Upon payment of the relevant fees on the applicable Order Form, Customer may receive certain support services for the Application.

3.4.   Security.  All confidential documents and information provided to Scribbles by or on behalf of Customer shall be stored and maintained by Scribbles with commercially reasonable care for the types of records being stored and maintained.  Online access to records or information shall be password protected and provided with commercially reasonable care for the types of records being stored and maintained.  Without limiting the foregoing, Scribbles specifically agrees to use commercially reasonable efforts to ensure that: (i) all servers, computers, and computer equipment used by Scribbles to provide services pursuant to the SaaS Agreement will be maintained in good working order in compliance with generally accepted industry standards in light of the confidential nature of the documents in question and shall be located in a safe, controlled, and environmentally stable environment (including moisture and temperature controls) and reasonably protected against fires, hurricanes, flooding, or similar occurrences; (ii) all websites, files transfer protocols (FTPs), and any other online electronic system used by Scribbles to provide services pursuant to the SaaS Agreement will be protected from security breaches by commercially reasonable firewalls and other intrusion detections systems and antivirus software; (iii) Scribbles will have technical controls in place designed to ensure the availability of data and the security and confidentiality of Confidential Information; and (iv) all information provided by Scribbles pursuant to the SaaS Agreement shall be encrypted while in transit over an open network.

4. OWNERSHIP

4.1.   Reservation of Rights. By signing the Order Form, Customer irrevocably acknowledges that, subject to the rights granted herein, Customer has no ownership interest in the Platform or Scribbles materials provided to Customer. Scribbles will own all right, title, and interest in such Platform and Scribbles materials, subject to any limitations associated with intellectual property rights of third parties. Scribbles reserves all rights not specifically granted herein.

4.2.   Marks and Publicity. Scribbles and Customer trademarks, trade names, service marks, and logos, whether or not registered (“Marks”), are the sole and exclusive property of the respective owning party, which owns all right, title and interest therein. Scribbles may: (i) use the Customer’s name and/or logo within product literature, press release(s), social media, and other marketing materials; (ii) quote the Customer’s statements in one or more press releases; (iii) upon Scribbles’ request, Customer shall cooperate with the creation and publication of a case study concerning Customer’s use of the Application; and/or (iv) make such other use of the Customer’s name and/or logo   as   may   be   agreed   between   the   parties. Additionally, Scribbles may include Customer’s name and/or logo within its list of customers for general promotional purposes. Scribbles shall comply with Customer’s trademark use guidelines as such are communicated to Scribbles in writing and Scribbles shall use the Customer’s Marks in a manner which is consistent with industry practice. Neither party grants to the other any title, interest or other right in any Marks except as provided in this Section.

5. CONFIDENTIALITY

5.1.   Definition. “Confidential Information” includes all information marked pursuant to this Section and disclosed by either party, before or after the Services Start Date (as identified on the Order Form), and generally not publicly known, whether tangible or intangible and in whatever form or  medium provided, as well as any information generated by a party that contains, reflects, or is derived from such information. For clarity, the term ‘Confidential Information’ does not include any personally identifiable information.

5.2.   Confidentiality of Platform. All Confidential Information in tangible form will be marked as “Confidential” or the like or, if intangible (e.g., orally disclosed), will be designated as being confidential at the time of disclosure and will be confirmed as such in writing within thirty (30) days of the initial disclosure. Notwithstanding the foregoing, the following is deemed Scribbles Confidential Information with or without such marking or written confirmation: (i) the Platform (including, but not limited to the architecture and code base) and other related materials that may be furnished by Scribbles; (ii) any SOC 2 reports or results, (iii) the oral and visual information relating to the Platform; and (iv) the pricing in the SaaS Agreement.

5.3.   Exceptions. Without granting any right or license, the obligations of the parties hereunder will not apply to any material or information that: (i) is or becomes a part of the public domain through no act or omission by the receiving party; (ii) is independently developed by the other party without use of the disclosing party’s Confidential Information; (iii) is rightfully obtained from a third party without any obligation of confidentiality; or (iv) is already known by the receiving party without any obligation of confidentiality prior to obtaining the Confidential Information from the disclosing party. In addition, neither party will be liable for disclosure of Confidential Information if made in response to a valid order of a court or authorized agency of government, provided that notice is promptly given to the disclosing party so that the disclosing party may seek a protective order and engage in other efforts to minimize the required disclosure. The parties shall cooperate fully in seeking such protective order and in engaging in such other efforts.

5.4    Ownership of Confidential Information. Nothing in these SaaS Terms will be construed to convey any title or ownership rights to the Platform or other Confidential Information to Customer or to any patent, copyright, trademark, or trade secret embodied therein, or to grant any other right, title, or ownership interest to Scribbles’ Confidential Information. Neither party shall, in whole or in part, sell, lease, license, assign, transfer, or disclose the Confidential Information to any third party and shall not copy, reproduce or distribute the Confidential Information except as expressly permitted in these SaaS Terms. Each party shall take every reasonable precaution, but no less than those precautions used to protect its own Confidential Information, to prevent the theft, disclosure, and the unauthorized copying, reproduction or distribution of the Confidential Information.

5.5.   Non-Disclosure. Each party agrees at all times to use all reasonable efforts, but in any case, no less than the efforts that each party uses in the protection of its own Confidential Information of like value, to protect Confidential Information belonging to the other party. Each party agrees to restrict access to the other party’s Confidential Information only to those employees or Subcontractors (as defined below) who: (i) require access in the course of their assigned duties and responsibilities; and (ii) have agreed in writing to be bound by provisions no less restrictive than those set forth in this Section.

5.6.   Suggestions/Improvements to Platform. Notwithstanding this Section, unless otherwise expressly agreed in writing, all suggestions, solutions, improvements, corrections, and other contributions provided by Customer regarding the Platform or other Scribbles materials provided to Customer will be owned by Scribbles, and Customer hereby agrees to assign any such rights to Scribbles. Nothing in these SaaS Terms will preclude Scribbles from using in any manner or for any purpose it deems necessary, the know-how, techniques, or procedures acquired or used by Scribbles in the performance of services hereunder.

5.7.   Use of Aggregate Data: Notwithstanding anything to the contrary set forth herein, Scribbles may collect and use data regarding the use and performance of the Platform in anonymized and aggregated form, to analyze and improve the Platform and for Platform support, and general benchmarking data and industry reports, provided that any user data is aggregated and anonymized such that no personally identifying information of any individual is revealed.  As between Scribbles and Customer, all right, title and interest in the aggregated data, aggregated statistics as set forth in Section 5.7. herein, and all intellectual property rights therein, belong to and are retained solely by Scribbles.

6. WARRANTY

6.1.   No Malicious Code. To the knowledge of Scribbles, the Application does not contain any malicious code, program, or other internal component (e.g. computer virus, computer worm, computer time bomb, or similar component), which could damage, destroy, or alter the Application, or which could reveal, damage, destroy, or alter any data or other information accessed through or processed by the Application in any manner. This warranty will be considered part of and covered under the provisions of these SaaS Terms. Customer must: (i) notify Scribbles promptly in writing of any nonconformance under this warranty; (ii) provide Scribbles with reasonable opportunity to remedy any nonconformance under the provisions of these SaaS Terms; and (iii) provide reasonable assistance in identifying and remedying any nonconformance.

6.2.   Authorized Representative. Customer and Scribbles warrant that each has the right to enter into these SaaS Terms and that these SaaS Terms and the Order Form executed hereunder will be executed by an authorized representative of each entity.

6.3.   Services Warranty. Scribbles warrants that all services performed hereunder shall be performed in a workmanlike and professional manner.

6.4.   Disclaimer of Warranties. ANY AND ALL OF SOFTWARE, SERVICES, CONFIDENTIAL INFORMATION AND ANY OTHER TECHNOLOGY OR MATERIALS PROVIDED BY SCRIBBLES TO THE CUSTOMER ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. EXCEPT AS OTHERWISE EXPRESSLY STATED IN SECTION 6 OF THESE SAAS TERMS. SCRIBBLES MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. NEITHER SCRIBBLES (NOR ANY OF ITS SUBSIDIARIES, AFFILIATES, SUPPLIERS OR LICENSORS) WARRANTS OR REPRESENTS THAT THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE. CUSTOMER ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF CUSTOMER’S PRIVACY, DATA, CONFIDENTIAL INFORMATION, AND PROPERTY. 

6.5.   Modifications. Notwithstanding anything to the contrary in this Section, any and all warranties under these SaaS Terms are VOID if Customer has made changes to the Platform or has permitted any changes to be made other than by or with the express, written approval of Scribbles.

7. INDEMNIFICATION

7.1.   Scribbles Indemnity. Scribbles will defend at its expense any cause of action brought against Customer, to the extent that such cause of action is based on a claim that the Application, as hosted by Scribbles to Customer, infringes a United States patent, copyright, or trade secret of a third party. Scribbles will pay those costs and damages finally awarded against Customer pursuant to any such claim or paid in settlement of any such claim if such settlement was approved in advance by Scribbles. Customer may retain its own counsel at Customer’s own expense.

7.2.   No Liability. Scribbles will have no liability for any claim of infringement based on: (i) Platform which has been modified by parties other than Scribbles where the infringement claim would not have occurred in the absence of such modification; (ii) Customer’s use of the Platform in conjunction with data or third party software where use with such data or third party software gave rise to the infringement claim; or (iii) Customer’s use of the Platform outside the permitted scope of these SaaS Terms.

7.3.   Remedies. Should the Platform become, or in Scribbles’ opinion is likely to become, the subject of a claim of infringement, Scribbles may, at its option, (i) obtain the right for Customer to continue using the Platform, (ii) replace or modify the Platform so it is no longer infringing or reduces the likelihood that it will be determined to be infringing, or (iii) if neither of the foregoing options is commercially reasonable, terminate the access and Use of the Platform. Upon such termination, Customer shall cease accessing the Platform and Scribbles will refund to Customer, as Customer’s sole remedy for such subscription termination, the   subscription fees paid by Customer for   the terminated license for the past twelve (12) months. THIS SECTION 7 STATES THE ENTIRE LIABILITY OF SCRIBBLES WITH RESPECT TO ANY CLAIM OF INFRINGEMENT REGARDING THE APPLICATION.

7.4.   Customer Indemnity.  Customer  agrees  to  defend,  indemnify, and hold Scribbles and its officers, directors, employees, consultants, and agents harmless from and against any and all damages, costs, liabilities, expenses (including, without limitation, reasonable attorneys’ fees), and settlement amounts incurred in connection with any claim arising from or relating to Customer’s: (i) breach of any of its obligations set forth in Section 10 (Customer Obligations); (ii) Customer’s gross negligence or willful misconduct; (iii) actual or alleged use of the Application in violation of these SaaS Terms or applicable law by Customer or any Authorized Users; (iv) any actual or alleged infringement or misappropriation of third party intellectual property rights arising from data provided to Scribbles by the Customer or otherwise inputted into the Application, whether by the Customer, an Authorized User or otherwise including Customer Data (as defined below); and/or (v) any claim of any kind by an End User except to the extent that such claim results from Scribbles’ breach of the EULA, (vi) any violation by Customer or its Authorized Users, of any terms, conditions, agreements or policies of any third party Scribbles. “Customer Data” means that data and those forms developed or acquired by Customer independent from Scribbles or the Application.

7.5.   Indemnification Procedures. Each indemnifying party’s obligations as set forth in this Section are subject to the other party: (i) giving the indemnifying party prompt written notice of any such claim or the possibility thereof; (ii) giving the indemnifying party sole control over the defense and settlement of any such claim; and (iii) providing full cooperation in good faith in the defense of any such claim.

8. LIMITATION OF LIABILITY

8.1.   Liability Cap. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SCRIBBLES BE LIABLE UNDER ANY THEORY OF LIABILITY, WHETHER IN AN EQUITABLE, LEGAL, OR COMMON LAW ACTION ARISING HEREUNDER FOR CONTRACT, STRICT LIABILITY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), ATTORNEYS FEES AND COSTS, OR OTHERWISE, FOR DAMAGES WHICH, IN THE AGGREGATE, EXCEED THE AMOUNT OF THE FEES PAID BY CUSTOMER FOR THE SERVICES WHICH GAVE RISE TO SUCH DAMAGES.

8.2.   Disclaimer of Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SCRIBBLES BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND AND HOWEVER CAUSED INCLUDING, BUT NOT LIMITED TO, ATTORNEYS FEES AND COSTS, BUSINESS INTERRUPTION OR LOSS OF PROFITS, BUSINESS OPPORTUNITIES, OR GOODWILL.

8.3    THE FOREGOING LIMITATIONS APPLY EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.

9. TERM AND TERMINATION

9.1.   Subscription Term. The term of these SaaS Terms will continue until the termination of the last Order Form. Subject to the termination rights herein, the term shall automatically renew for the same term period as the term indicated within the then-current Order Form at Scribbles’ then-current rates, unless Customer notifies Scribbles in writing of Customer’s intent not to renew at least sixty (60) days prior to the expiration of the then-current term.

9.2.   Termination by Scribbles. These SaaS Terms and any rights created hereunder may be terminated by Scribbles: (i) if Customer fails to make any payments due hereunder within fifteen (15) days of the due date; (ii) on thirty (30) days written notice to Customer if Customer fails to perform any other material obligation required of it hereunder, and such failure is not cured within such thirty (30) day period; or (iii) Customer files a petition for bankruptcy or insolvency, has an involuntary petition filed against it, commences an action providing for relief under bankruptcy laws, files for the appointment of a receiver, or is adjudicated a bankrupt concern.

9.3.   Termination by Customer. These SaaS Terms may be terminated by Customer on providing ninety (90) days written notice to Scribbles if Scribbles fails to perform any material obligation required of it hereunder, and such failure is not cured within ninety (90) days from Scribbles’ receipt of Customer’s notice or a longer period if Scribbles is working diligently towards a cure.

9.4.   Effect of Termination. Upon termination of these SaaS Terms, Customer shall no longer access the Platform and Customer shall not circumvent any security mechanisms contained therein.

9.5.   Other Remedies. Termination of SaaS Terms will not limit either party from pursuing other remedies available to it, including injunctive relief, nor will such termination relieve Customer’s obligation to pay all fees that have accrued or are otherwise owed by Customer under these SaaS Terms.

10. CUSTOMER OBLIGATIONS

10.1. Customer agrees that no employees of Scribbles will be required to individually sign any agreement in order to perform any services hereunder including, but not limited to, access agreements, security agreements, facilities agreements or individual confidentiality agreements.

10.2. Customer agrees to comply with all applicable laws, regulations, and ordinances relating to these SaaS Terms. Customer shall ensure that each website for which the Application is engaged contains or is linked to a privacy policy that governs its data collection and use practices.

10.3. The Customer shall be obliged to inform its Authorized Users before the beginning of use of the Platform about the rights and obligations set forth in these SaaS Terms. The Customer will be liable for any violation of obligations by its Authorized Users or by other third parties who violate obligations within the Customer’s control.

10.4. The Customer shall be obliged to keep the login names and the passwords required for the use of the Application confidential, to keep it in a safe place, and to protect it against unauthorized access by third parties with appropriate precautions, and to instruct its Authorized Users to observe copyright regulations. Personal access data must be changed at regular intervals.

10.5. Before entering its data and information, the Customer shall be obliged to check the same for viruses or other harmful components and to use state of the art anti-virus programs for this purpose. In addition, the Customer itself shall be responsible for the entry and the maintenance of its data.

10.6. Scribbles has the right (but not the obligation) to suspend access to the Application or remove any data or content transmitted via the Application without liability (i) if Scribbles reasonably believes that the Application is being used in violation of these SaaS Terms or applicable law, (ii) if requested by a law enforcement or government agency or otherwise to comply with applicable law, provided that Scribbles shall use commercially reasonable efforts to notify Customer prior to suspending the access to the Application as permitted under these SaaS Terms, or (iii) as otherwise specified in these SaaS Terms. Information on Scribbles’ servers may be unavailable to Customer during a suspension of access to the Platform. Scribbles will use commercially reasonable efforts to give Customer at least twelve (12) hours’ notice of a suspension unless Scribbles determines in its commercially reasonable judgment that a suspension on shorter or contemporaneous notice is necessary to protect Scribbles or its customers.

10.7. During the term of these SaaS Terms and for a period of two (2) years following any termination or expiration of these SaaS Terms, Customer shall maintain written records related to the use of the Platform by Customer, as reasonably necessary to verify compliance with the usage terms of these SaaS Terms. Such records will be kept in accordance with Customer’s records retention policy and records retention schedule applicable thereto. Not more than once annually, and with notice of not less than 20 business days, Scribbles may (or may engage a third-party, which will be subject to a confidentiality obligation), to verify compliance (“Compliance Review”). The Compliance Review will take place during normal business hours and in a manner that does not interfere unreasonably with Customer’s operations. At Scribbles’ option, Scribbles may request, and Customer hereby agrees to complete, a self-audit questionnaire relating to Customer’s usage under the rights granted by Supplier to Customer in the SaaS Terms. If the Compliance Review or self-audit reveals excess use of the Platform, Customer agrees to compensate Scribbles for such usage. All costs of the Compliance Review will be borne by Scribbles, unless excess usage of 5% or more is found (“Material Excess Usage”). If Material Excess Usage is found during the Compliance Review, Customer shall reimburse Scribbles for the actual costs associated with performance of the Compliance Review. Scribbles and any third-party involved in the Compliance Review will use the information obtained in compliance review only to enforce Scribbles’ rights and to determine Customer’s compliance with the terms of the rights granted in these SaaS Terms. By invoking the rights and procedures described in this Section, Scribbles does not waive its rights to enforce other terms of these SaaS Terms, including, but not limited to, any intellectual property rights by other means as permitted by law.

10.8. All End Users who access the Platform and request access to records related to a student will require verification and approval from Customer (the “Records Access Permission”).  Records Access Permission requests will be communicated to Customer, from the End User by way of the Platform.  It is Customer’s sole responsibility to ensure the legitimacy, propriety and legality of the request and to properly approve or reject the providing of access of records to the End User. Customer will indemnify, defend and hold Scribbles harmless against any claim of any kind related to the improper disclosure of school related documents unless such disclosure was due solely to the gross negligence or willful misconduct of Scribbles.

11. MISCELLANEOUS

11.1. Assignment. Customer may not assign these SaaS Terms or otherwise transfer any right created hereunder whether by operation of law, change of control, or in any other manner, without the prior written consent of Scribbles. Any purported assignment of these SaaS Terms, or any rights in violation of this Section will be deemed void. Scribbles may assign these SaaS Terms, sub-contract or otherwise transfer any right or obligation under these SaaS Terms to a third party without the Customer’s prior written consent.

11.2. Affiliates and Third Parties. At the direction and sole discretion of Scribbles, affiliates of Scribbles (the “Scribbles Affiliates”) may perform certain tasks related to Scribbles’ obligations and rights under the Order Form and the SaaS Agreement, including, but not limited to, invoicing, payment, technical support, project management and/or sales support. Customer hereby consents to Scribbles Affiliates’ role. Customer further agrees and acknowledges that Scribbles and Customer are the only parties to the Order Form and the SaaS Agreement, and that any action taken by Scribbles Affiliates in connection with the performance of Scribbles’ obligations under the Order Form and the SaaS Agreement will not give rise to any cause of action against Scribbles Affiliates, regardless of the theory of recovery. Scribbles shall at all times retain full responsibility for Scribbles Affiliates’ compliance with the applicable terms and conditions of the Order Form and the SaaS Agreement. Scribbles will have the right to use third parties, including offshore entities who employ foreign nationals, as well as employees and contractors of Scribbles Affiliates and subsidiaries, who may also be foreign nationals (collectively, “Subcontractors”) in the performance of its obligations hereunder and, for purposes of these SaaS Terms, all references to Scribbles or its employees will be deemed to include such Subcontractors. Scribbles will have the right to disclose Customer Confidential Information to such third parties provided such third parties are subject to confidentiality obligations similar to those between Scribbles and Customer.

11.3. Export Restrictions and Technical Data. Customer may not (i) remove or export from the United States or allow the export or re-export of the Application or anything related thereto, or any direct product thereof, or (ii) use the Application for uploading or downloading of any technology, in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.  Customer shall not provide to Scribbles any technical data as that term is defined in the International Traffic in Arms Regulations (“ITAR”) at 22 CFR 120.10. Customer shall certify that all information provided to Scribbles has been reviewed and scrubbed so that all technical data and other sensitive information relevant to Customer’s ITAR regulated project has been removed and the information provided is only relevant to bug reports on Scribbles products.

11.4. Compliance with Laws. Both parties agree to comply with all applicable laws, regulations, and ordinances relating to such party’s performance under these SaaS Terms.

11.5. Survival. The provisions set forth in Sections 2, 4, 5, 6.4, 8, 9.3, 9.4 and 11 of these SaaS Terms will survive termination or expiration of these SaaS Terms and any applicable license hereunder.

11.6. Notices. Any notice required under these SaaS Terms shall be given in writing and will be deemed effective upon delivery to the party to whom addressed. All notices shall be sent to the applicable address specified on the Order Form or to such other address as the parties may designate in writing. Any notice of material breach will clearly define the breach including the specific contractual obligation that has been breached.

11.7. Force Majeure. Scribbles will not be liable to Customer for any delay or failure of Scribbles to perform its obligations hereunder if such delay or failure arises from any cause or causes beyond the reasonable control of Scribbles. Such causes will include, but are not limited to, acts of God, floods, fires, loss of electricity or other utilities, or delays by Customer in providing required resources or support or performing any other requirements hereunder.

11.8. Restricted Rights. Use of the Platform by or for the United States Government is conditioned upon the Government agreeing that the Platform is subject to Restricted Rights as provided under the provisions set forth in FAR 52.227-19. Customer shall be responsible for assuring that this provision is included in all agreements with the United States Government and that the Platform, when accessed by the Government, is correctly marked as required by applicable Government regulations governing such Restricted Rights as of such access.

11.9. Privacy. Obligations with respect to personally identifiable information (if any) are set forth in the ‘Data Privacy Agreement’ located at https://www.scribsoft.com/legal/privacy.

11.10.        Entire Agreement. These SaaS Terms together with the documents referenced herein constitute the entire agreement between the parties regarding the subject matter hereof and supersedes all proposals and prior discussions and writings between the parties with respect to the subject matter contained herein. All terms respecting the subject matter of the SaaS Terms and contained in purchase orders, invoices, acknowledgments, shipping instructions, or other forms exchanged between the parties will be void and of no effect.

11.11.        Modifications. The parties agree that these SaaS Terms cannot be altered, amended or modified, except by a writing signed by an authorized representative of each party.

11.12.        Non-solicitation. During the term of these SaaS Terms and for a period of two (2) years thereafter, Customer agrees not to hire, solicit, nor attempt to solicit, the services of any employee or Subcontractor of Scribbles without the prior written consent of Scribbles. Customer further agrees not to hire, solicit, nor attempt to solicit, the services of any former employee or Subcontractor of Scribbles for a period of one (1) year from such former employee’s or Subcontractor’s last date of service with Scribbles. Violation of this provision will entitle Scribbles to liquidated damages against Customer equal to two hundred percent (200%) of the solicited person’s gross annual compensation.

11.13.        Headings. Headings are for reference purposes only, have no substantive effect, and will not enter into the interpretation hereof.

11.14.        No Waiver. No failure or delay in enforcing any right or exercising any remedy will be deemed a waiver of any right or remedy.

11.15.        Severability and Reformation. Each provision of these SaaS Terms is a separately enforceable provision. If any provision of these SaaS Terms is determined to be or becomes unenforceable or illegal, such provision will be reformed to the minimum extent necessary in order for these SaaS Terms to remain in effect in accordance with its terms as modified by such reformation.

11.16.        Independent Contractor. Scribbles is an independent contractor and nothing in these SaaS Terms will be deemed to make Scribbles an agent, employee, partner, or joint venturer of Customer. Neither party will have authority to bind, commit, or otherwise obligate the other party in any manner whatsoever.

11.17.        Governing Law; Venue. The laws of the State of North Carolina, USA govern the interpretation of these SaaS Terms, regardless of conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods (1980) and the Uniform Computer Information Transactions Act (UCITA) are hereby excluded in their entirety from application to these SaaS Terms. The parties agree that the federal and state courts located in Mecklenburg County, North Carolina, USA will have exclusive jurisdiction for any dispute arising under, out of, or relating to these SaaS Terms. Mediation will be held in Mecklenburg County, North Carolina, USA.

11.18.        Dispute Resolution.

Negotiations. Where there is a dispute, controversy, or claim arising under, out of, or relating to these SaaS Terms, the aggrieved party shall notify the other party in writing of the nature of such dispute with as much detail as possible about the alleged deficient performance of the other party. A representative from senior management of each of the parties shall meet in person or communicate by telephone within five (5) business days of the date of the written notification in order to reach an agreement about the nature of the alleged deficiency and the corrective action to be taken by the respective parties.

Mediation. Any dispute, controversy, or claim arising under, out of, or relating to these SaaS Terms and any subsequent amendments of these SaaS Terms, including,  without  limitation,  its   formation,   validity, binding effect, interpretation, performance, breach, or termination, as well as non-contractual claims, and any claims with respect to the validity of this mediation agreement (hereinafter the “Dispute”), shall be submitted to mediation in accordance with the then- current WIPO Mediation Rules. The language to be used in the mediation will be English.

Opportunity to Cure. Notwithstanding anything contained hereunder, Customer agrees and acknowledges that no dispute resolution or litigation will be pursued by Customer for any breach of these SaaS Terms until and unless Scribbles has had an opportunity to cure any alleged breach. Customer agrees to provide Scribbles with a detailed description of any alleged failure and a description of the steps that Customer understands must be taken by Scribbles to resolve the failure. Scribbles shall have thirty (30) days from Scribbles’ receipt of Customer’s notice to complete the cure.

Injunctive Relief. The parties agree that it will not be inconsistent with their duty to mediate to seek injunctive or other interim relief from a competent court. The parties, in addition to all other available remedies, shall each have the right to initiate an action in any court of competent jurisdiction in order to request injunctive or other interim relief with respect to a violation of intellectual property rights or confidentiality obligations. The choice of venue does not prevent a party from seeking injunctive or any interim relief in any appropriate jurisdiction.

PROFESSIONAL SERVICES TERMS AND CONDITIONS

The following Professional Services terms and conditions (these “Professional Services Terms”) are made part of and supplement the terms of the SaaS Terms and other terms entered into by and between the Customer (as identified on an Order Form (“SOW”)) and Scribbles (collectively, “Master Agreement”) and pursuant to which Scribbles will provide, when applicable, certain professional services to the Customer as defined on the SOW. Capitalized terms used but not defined in these Professional Services Terms have the meanings assigned to them elsewhere in the Master Agreement.

1. TERM

Unless terminated as provided herein, these Professional Services Terms commence on the “Term Start Date” and continue through the “Term End Date” as set forth on each SOW (the “Term”).

2. PROFESSIONAL SERVICES TO BE DELIVERED

2.1.   Scribbles will provide the services and deliverables (“Deliverables”) described in the attached SOW during the Term. Those services and Deliverables are a collection of activities which will be performed during the Term (the “Professional Services”). Any additional scope or activities that extend beyond the Services will require an additional SOW. For the avoidance of doubt, the SOW may contain terms and conditions specific to the applicable Professional Services ordered (via a SOW) which terms will have no effect on other Professional Services Addenda. Scribbles may immediately cease performing Services, without liability, if a SOW expires and is not immediately extended or replaced with a valid SOW.

2.2.   Change Control Process. Change control for additional Services or scope to be delivered under a SOW will be completed according to the following procedure prior to Scribbles starting any work:

2.2.1.         Specific changes may be proposed by Customer’s business team members.

2.2.2.         Proposed changes will be reviewed by Scribbles and a new or additional SOW detailing the scope, schedule, resource and/or budget impact will be prepared and delivered to Customer management.

2.2.3.         Customer approves by signature such SOW and delivers such SOW to Scribbles for Scribbles’ signature, or Customer shall deny the changes in scope, schedule, resources and/or budget and Scribbles shall revise and resubmit the SOW for Customer’s signature.

2.2.4.         Scribbles begins work on specific changes defined in the signed, approved SOW only upon the mutual execution of the new SOW referenced above.

3. FEES AND EXPENSES

The Professional Services provided under these Professional Services Terms will be billed according to the fee schedule set forth in the SOW. Unless otherwise specifically stated in the SOW, all Professional Services are provided on a time and materials basis. Unless otherwise specifically stated in the SOW, the fees do not include expenses; Customer shall reimburse Scribbles for all reasonable travel, food, lodging, and other out-of-pocket expenses incurred in performance of these Professional Services Terms. Scribbles agrees to comply with Customer’s expense policies, as long as Customer provides those policies to Scribbles with reasonable advance notice and in writing. If any additional work is performed beyond the Completion Date or scope of these Professional Services Terms, the rate will be mutually agreed upon by the parties or if no such rate is established, such work will be performed under Scribbles’ standard rate in effect at the time. All charges and fees set out in the SOW are quoted exclusive of applicable taxes, duties, or similar charges. Customer shall pay all sales, use, withholdings, excise, or other taxes or duties arising out of these Professional Services Terms, provided, however, that Customer will not be responsible for taxes on the net income of Scribbles. 

4. PAYMENT

4.1.   Notwithstanding any provision to the contrary herein, any and all payments required to be made hereunder are to be timely made by the Customer, and no payments to Scribbles will be withheld, delayed, reduced, or refunded if Scribbles‘ inability to meet any schedule requirements is caused by Customer’s failure to provide certain of its  facilities, computer resources, software, personnel, or business information as are required to perform these Professional Services Terms.

4.2.   Customer’s failure to issue a purchase order or provide such purchase order to Scribbles, however, will in no way relieve Customer of any obligation entered into pursuant to these Professional Services Terms, including, but not limited to, its obligation to pay Scribbles in a timely fashion.

5. OWNERSHIP

All Deliverables produced by Service Provider under these Professional Services Terms will not be considered to be works made for hire and will be exclusively owned by Service Provider and no ownership rights thereto will accrue in any manner to Customer. Customer hereby agrees, upon written request from Service Provider, to assign any rights of Customer in such Deliverables to Service Provider. However, Service Provider hereby grants to Customer, at no additional charge, a worldwide, nonexclusive, license to (i) modify and otherwise create derivative works based on the Deliverables; and (ii) reproduce, distribute, perform, and display (publicly or otherwise), and otherwise use and exploit the Deliverables and derivative works thereof solely in connection with Service Provider licensed under a separate license agreement. No rights are granted to Customer hereunder other than as expressly set forth.

6. GENERAL TERMS

6.1.   Order of Precedence. Each SOW shall be governed by the terms and conditions of this Agreement and the Master Agreement; however, in the event of any conflict between this Agreement and a SOW, the provisions of the SOW shall prevail.

6.2.   Third Party Rights. Customer acknowledges that in the event Scribbles provides Professional Services pertaining to any third party products (including software, hardware, equipment or any other material), all rights in such third party products (“Third Party Rights”) are retained by the respective third party. Customer shall be required to obtain any Third Party Rights from the respective third party directly and any rights in the Professional Services related to such Third Party Rights will be subject to Customer’s agreement with the respective third party. Customer will defend, indemnify and hold harmless Scribbles from any third-party claim, demand, lawsuit and reasonable costs and expenses, including but not limited to attorneys’ fees, arising from or related to any allegation of infringement of a patent, copyright, trade secret or similar intellectual property right concerning the products, designs and/or materials provided by Customer.

6.3.   Support. Scribbles shall have no support and enhancement obligations related to any Professional Services except as otherwise specified in a SOW.

Service Express Terms

The customer shall also be bound by the standard terms and conditions for Hardware Maintenance Services located at https://serviceexpress.com/terms-conditions/, which are incorporated herein by reference.

Singlewire Terms

The customer shall also be bound by the Singlewire Master Terms and Conditions located at https://www.singlewire.com/TERMS and the Singlewire Informacast Fusion and Informacast Mobile Saas Service Schedule located at https://www.singlewire.com/SERVICE-SCHEDULE-INFORMACAST-SAAS, which are incorporated herein by reference.

Smartsheet Inc. User Agreement

The customer shall also be bound by the User Agreement located at https://www.smartsheet.com/user-agreement, which is incorporated herein by reference.

Spectrum Enterprise Terms

The customer shall also be bound by the Spectrum Enterprise terms located at https://enterprise.spectrum.com/legal/terms-and-conditions.html, which are incorporated herein by reference.

TIBCO End User Agreement

The customer shall also be bound by the End User Agreement located at https://www.cloud.com/content/dam/cloud/documents/legal/end-user-agreement.pdf, which is incorporated herein by reference.

Unity Technologies End User Terms

The customer shall also be bound by the terms and conditions for the purchased Unity Offerings located at unity3d.com/legal, which are incorporated herein by reference.

Verkada End User Agreement

The customer shall also be bound by the end user agreement located at https://www.verkada.com/support/end-user-agreement/, which is incorporated herein by reference.

Verkada Central Station Monitoring Services and Signal Routing Services

If Heartland Business Systems, LLC (“Heartland”) resells Verkada Central Station Monitoring Services and Signal Routing Services to Buyer, Heartland’s Standard Terms and Conditions (the “ST&Cs”) shall be supplemented by, and include the terms of this Addendum.  If there are any conflicts between the terms of this Addendum and the ST&Cs, the terms of this Addendum will control with respect to the resale of the Monitoring Services by Heartland and the use of the SRS by the Buyer.

1. Definitions.

“Central Station Monitoring Service(s)” or “Monitoring Services” means: (i) the monitoring by a Central Monitoring Station of signals and data received at the Central Monitoring Station from electronic security devices at a customer’s premise; (ii) the notification to the person designated by the customer as the responsible party for the premises; and/or (iii) requesting, where appropriate, the dispatch of emergency responders or other agents to a customer’s premises to investigate the signals and data.

“Central Monitoring Station” is a company that provides Central Station Monitoring Services.

“Buyer” means the subscriber, as such term is commonly used in the alarm industry, that purchases the Monitoring Services from Heartland.

“Signal Routing Service(s)” or “SRS” means the automated signal and data retransmission software that Heartland is reselling to Buyer.

“Heartland Indemnified Parties” for this Addendum means Heartland and its parents, affiliates, subsidiaries, subcontractors and third parties, and each of their respective shareholders, members, partners, owners, directors, managers, officers, employees and agents.

2. Monitoring Services. Heartland does not itself provide the Monitoring Services, is not a Central Monitoring Station, and does not respond to signals and data, notify the personnel designated by the Buyer as the responsible parties, request dispatch of emergency responders or other agents to Buyer’s premises to investigate alarm events.  Rather, the SRS only routes the signals and data to a third-party platform which re-routes such information to the Central Monitoring Station.  Furthermore, Heartland is simply reselling the SRS.   Heartland and the Central Monitoring Station are entirely independent and unrelated entities.
3. Indemnification; Waiver of Subrogation. Buyer will (i) indemnify, defend, and hold harmless the Heartland Indemnified Parties, including their agents and subcontractors, from and against all claims, including those brought by third-parties, including attorneys’ fees and losses, asserted against and alleged to be caused by Heartland’s performance, negligence, or failure to perform any obligation under or in furtherance of this Agreement, and (ii) advance to the Heartland Indemnified Parties, including their agents and subcontractors, expenses for litigation and arbitration, including investigation and legal and expert witness fees.  Buyer, on its own behalf and on behalf of any insurance carrier, waives any right of subrogation Buyer’s insurance carrier may otherwise have against Heartland or Heartland’s subcontractors arising out of this Agreement or the relation of the parties hereto.
4. Limitation of Liability. Buyer agrees that, should there arise any liability on the part of Heartland as a result of Heartland’s negligent performance to any degree or negligent failure to perform any of Heartland’s obligations pursuant to this Agreement or any other legal duty, equipment failure, human error, strict products liability or otherwise, that Heartland’s total aggregate liability shall be limited to the amount of fees actually paid by Buyer to Heartland for Buyer’s use of the SRS in the twelve-month period preceding the events that give rise to the applicable claim.  Except as expressly set forth in this Agreement, Heartland makes no express warranties and expressly disclaims all implied warranties and conditions, including without limitation warranties of non-infringement, merchantability, and fitness for a particular purpose, with respect to the products and services under this Agreement, which are otherwise provided “AS IS,” or that the products and services will be timely, uninterrupted, or error-free.
5. Exculpatory Clause. Buyer agrees and acknowledges that Heartland is not an insurer, and no insurance is offered herein. The SRS is designed to reduce certain risks of loss; however, Heartland cannot guarantee that no loss or damage will occur.  Buyer therefore assumes any risk of loss or damage.  Heartland is not assuming liability, and, therefore, will not be liable to Buyer or any other third party, and Buyer covenants not to sue Heartland for any loss (economic or non-economic), business loss or interruption, consequential damages (in contract or tort), exemplary, punitive, multiple, lost profits or other indirect damages, data corruption or inability to retrieve data, personal injury, or property damage sustained by Buyer or any other third party as a result of equipment failure, human error, burglary, theft, hold-up, fire, smoke, water, or any other cause whatsoever, regardless of whether or not such loss or damage was caused by or contributed to by Heartland’s breach of warranty, contract, negligent performance to any degree in furtherance of this Agreement, any extra contractual or legal duty, strict products liability, or negligent failure to perform any obligation pursuant to this Agreement or any other legal duty, even if a party has been advised of the possibility of such damages or losses.
6. Insurance. The parties intend that the Buyer assume all potential risk and damage that may arise by reason of failure of these products or services, including the Monitoring Services, and that Buyer will look to its own insurance carrier for any loss or assume the risk of loss.  Subject to all limitations of liability set forth herein, Heartland will not be responsible for any portion of any loss or damage which is recovered or recoverable by Buyer from insurance covering such loss or damage or for such loss or damage against which Buyer is indemnified or insured.  Buyer and all those claiming rights under Buyer waive all rights against Heartland and its subcontractors for loss or damages caused by these products or services, including the Monitoring Services, or covered by insurance to be obtained by Buyer, except such rights as Buyer or others may have to the proceeds of insurance.
7. The prevailing party in any litigation or arbitration is entitled to recover its costs and attorneys’ fees from the other party. In any action or proceeding commenced by Heartland against Buyer, Buyer shall not be permitted to interpose any counterclaim.  BUYER MAY BRING CLAIMS AGAINST HEARTLAND ONLY IN BUYER’S INDIVIDUAL CAPACITY, AND NOT AS A CLASS ACTION PLAINTIFF OR CLASS ACTION MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. ANY DISPUTE BETWEEN THE PARTIES OR ARISING OUT OF THIS AGREEMENT, INCLUDING ISSUES OF ARBITRABILITY, SHALL, AT THE OPTION OF ANY PARTY, BE DETERMINED BY BINDING AND FINAL ARBITRATION BEFORE A SINGLE ARBITRATOR IN OUTAGAMIE COUNTY, WISCONSIN, PURSUANT TO THE FEDERAL ARBITRATION ACT, EXCEPT THAT NO PUNITIVE OR CONSEQUENTIAL DAMAGES MAY BE AWARDED.  The arbitrator shall be bound by the terms of this Agreement, and shall on request of a party, conduct proceedings by telephone, video, submission of papers or in-person hearing.  By agreeing to this arbitration provision, the parties are waiving their right to a trial before a judge or jury, waiving their right to appeal the arbitration award and waiving their right to participate in a class action.  Service of process or papers in any legal proceeding or arbitration between the parties may be made by First-Class Mail delivered by the U.S. Postal Service addressed to the party’s address designated in this agreement, on file with an agency of the state, or any other address provided by the party in writing to the party making service. The parties submit to the jurisdiction and laws of Wisconsin, except for arbitration which is governed by the Federal Arbitration Act and the arbitration rules thereunder.  The parties waive trial by jury in any action between them unless prohibited by law.  Any action between the parties must be commenced within one year of the accrual of the cause of action or shall be barred.  All actions or proceedings by either party must be based on the provisions of this Agreement.  Any other action that Buyer may have or bring against Heartland in respect to other services rendered in connection with this Agreement shall be deemed to have merged in and be restricted to the terms and conditions of this Agreement.

Webex Terms

Cisco shall at all times retain all right, title, and interest in and to all pre-existing Intellectual Property owned by Cisco and all Intellectual Property in and to the services and deliverables or other Intellectual Property provided or developed by Cisco or a third party on Cisco’s behalf thereafter.  Intellectual Property means any and all tangible and intangible: (i) rights associated with works of authorship throughout the world, including but not limited to copyrights, neighboring rights, moral rights, and mask works, and all derivative works thereof, (ii) trademark and trade name rights and similar rights, (iii) trade secret rights, (iv) patents, designs, algorithms and other industrial property rights, (v) all other intellectual and industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license, or otherwise, and (vi) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force (including any rights in any of the foregoing).  The End User will, at Cisco’s request, assist Cisco in efforts to preserve Cisco’s or its supplier’s intellectual property rights including pursuing an action against any breaching third parties.

The End User is prohibited from removing or modifying any intellectual property or proprietary rights notices in or with the Webex Services, or Documentation.  The End User is also prohibited from reselling, distributing or otherwise making available the Webex Services to third parties.  Cisco’s End User License Agreement (“EULA”) located at https://www.cisco.com/c/en/us/about/legal/cloud-and-software/software-terms.html applies to the End User’s use of the Webex Services.  “Documentation” means the Cisco user or technical manuals, training materials, specifications, privacy data sheets, or other information applicable to the Webex Services.

Wyebot Terms

The customer shall also be bound by the terms located at https://wyebot.com/terms, which are incorporated herein by reference.

Non-Returnable/Non-Refundable

• Barracuda: Customer understands that all orders for Barracuda are final when accepted by Barracuda.  No cancellations, returns, exchanges or refunds are allowed.
• Brocade: Customer understands that all orders for Brocade are final when accepted with a PO.  No cancellations, returns, exchanges or refunds are allowed.
• Cisco/Meraki: Effective January 30, 2022, Cisco Meraki will be aligning to the Cisco Order Cancellation Policy.  All new Cisco and Meraki orders submitted for hardware, and any attached software, will be non-cancellable and cannot be modified starting 45 days prior to the current estimated ship date.  Meraki license-only orders are not impacted by this policy change.  Non-cancellable orders are not eligible for RMA credit and are not eligible for an RMA exception.
• Citrix: Customer understands that all orders for Citrix are final when accepted by Citrix.  No cancellations, returns, exchanges or refunds are allowed.
• Delinea: Customer understands that all orders for Delinea are final when accepted by Delinea.  No cancellations, returns, exchanges or refunds are allowed.
• Dell: Customer understands that all orders for Dell are final when accepted by Dell.  No cancellations, returns, exchanges or refunds are allowed.
• DLT Note: Customer understands that all orders for DLT are final when accepted by DLT.  No cancellations, returns, exchanges or refunds are allowed.
• HPE: Customer understands that all orders for HP Enterprise are final when accepted by HP Enterprise.  No cancellations, returns, exchanges or refunds are allowed.
• HPI: Customer understands that all orders for HP Inc. are final when accepted by HP Inc.  No cancellations, returns, exchanges or refunds are allowed.
• KnowBe4: Customer understands that all orders for KnowBe4 are final when accepted by KnowBe4.  No cancellations, returns, exchanges or refunds are allowed.
• Microsoft Surface: Customer understands that all orders for Microsoft Surface product are final when accepted by Microsoft.  No cancellations, returns, exchanges or refunds are allowed.
• Nutanix: Customer understands that all orders for Nutanix are final when accepted by Nutanix.  No cancellations, returns, exchanges or refunds are allowed.
• Palo Alto: Customer understands that all orders for Palo Alto are final when accepted by Palo Alto.  No cancellations, returns, exchanges or refunds are allowed.
• Planar Systems, Inc.: Customer may not cancel its order, reduce quantities, revise specifications or extend scheduled delivery unless agreed to in writing signed by Planar Systems, Inc. (“Planar”). For standard product order, customer may be charged a restocking or cancellation fee of up to 30% of the purchase price for any change or cancellation. For orders designated by Planar as custom, or otherwise identified as custom with a unique part number, customer will be subject to a restocking or cancellation fee of at least 50% of the purchase price, if customer’s request is granted. If customer requests to reschedule shipment for more than 30 days beyond the originally scheduled ship date, Planar may charge customer an additional storage and handling fee of up to 30% of the purchase price if customer’s request is granted. Planar does not accept returns of custom Products. Planar may, at its option and without incurring liability to customer or prejudicing Planar’s rights to other remedies, either cancel or reschedule customer’s order if customer is in default of payment obligations or any other material term of the contract, becomes insolvent, is the subject of bankruptcy proceedings, or ceases to do business in the ordinary course.
• Red Hat: The Red Hat products are sold without return privileges.
• Rubrik: Customer understands that all orders for Rubrik are final when accepted by Rubrik.  No cancellations, returns, exchanges or refunds are allowed.
• Veeam: Customer understands that all orders for Veeam are final when accepted by Veeam.  No cancellations, returns, exchanges or refunds are allowed.
• VMware: Customer understands that all orders for VMware are final when accepted by VMware.  No cancellations, returns, exchanges or refunds are allowed.

Yubico Terms

Subject to the applicable terms and conditions located at https://www.yubico.com/support/terms-conditions unless Customer has a written agreement executed by Yubico addressing the relevant products and services being purchased, in which case such written agreement will govern. For example, if Customer is purchasing YubiEnterprise Subscription and Professional Services, then both the YubiEnterprise Subscription License Agreement and Professional Services Agreement apply.