Living Security Master Services Agreement
This Living Security Master Services Agreement (this “MSA”) is between Living Security, Inc. a Delaware corporation having offices at 9901 Brodie Lane, Suite 160 PMB1470 Austin, TX 78748 (“Living Security“) and the customer who submits an Order that incorporates this MSA by reference (“Customer”).
1. DEFINED TERMS.
Capitalized terms have the meaning stated below or in the section where they are first used.
Affiliate means an entity that controls Customer, is controlled by Customer, or is under common control with Customer, directly or indirectly, where control means the right to vote a majority of the common stock or similar ownership interests of the entity or to otherwise control the management or policies of the entity.
Agreement refers collectively to the Order(s), this Master Services Agreement, and any documents attached to or incorporated by reference in either of them.
Authorized Users has the meaning given in Section 8.3 (Authorized Users).
Confidential Information has the meaning given in Section 12.2 (Confidential Information).
Content means text, graphics, images (still or moving), videos, scenarios for interactive exercises among team members, games, audio recordings, Services documentation, Marks and other content on any media, that Living Security provides as part of the Services or publishes on its Site.
Mark(s) means trademarks and service marks, such as trade names, logos, and similar indicia.
Order means a final order form prepared by Living Security for Customer’s signature that Customer has signed and submitted to Living Security.
Services means Living Security’s security services described in an Order, which may include: (i) use of the Teams platform for live online interaction among team members, (ii) access to training Content, (iii) use of Living Security’s phishing simulator service, (v) use of UnifyTM for data analysis, and (vi) and other services or content described in an Order, in each case with Living Security’s standard Support.
Security Materials has the meaning given in Section 12.3 (Security).
Site means www.livingsecurity.com, or any other website operated by Living Security for the purpose of offering or providing services of the type covered by this MSA, including any subdomains.
Staff means Customer’s and its Affiliates’ employees, individual contractors, and other personnel who are under Customer or its Affiliates’ direct supervision.
Support means access to Living Security’s general release version of its standard online support materials at https://www.livingsecurity.com/support and live technical and administrative support during Living Security’s published support hours.
Term has the meaning given in Section 9.1.1 (Term, Termination, and Suspension/Order Term).
Third Party Technology means software, online services, and other third-party technologies provided by a third party to Customer under separate legal terms between Customer and the third party.
Living Security will provide the Services described in each Order and related Support for the Term of the Order, on the terms, conditions and restrictions stated in the Agreement. Living Security warrants that it will provide the Services in material conformance with the Order and the relevant Services documentation and in a good and professional manner (the “Services Warranty”). Living Security warrants that it will provide the Services in accordance with the laws applicable to the provision of the Services.
Customer is licensed to use the Technology and Content made available to Customer as part of the Services covered by an Order for the Term of that Order. The license is non-exclusive. The license is non-transferable except as part of an assignment of the Agreement that is permitted by Section 12.12 (Assignment). The license may not be sublicensed except to Customer’s Affiliates and Customer’s contractors who are retained by Customer to support its internal business operations, in each case subject to all of the terms, conditions and restrictions of this license. The license is worldwide, subject to applicable export laws. The license is automatically suspended or terminated on a suspension or termination of the Service or Order in accordance with Section 10 (Term, Termination, and Suspension).
3. Conditions, Restrictions, Reservation of Rights.
Living Security provides the Services, the Living Security Technology, and the Living Security Content, subject to the following conditions and restrictions: (i) unless Customer and Living Security have entered into a separate written agreement permitting resale or distribution of the Services, Customer may not resell the Services or use the Services to provide services to persons other than Customer’s Affiliates; (ii) Customer may not modify or create derivative works of the Services, Content, or Technology; (iii) Customer may not access the Services, the Content, or the Technology for the purpose of creating a competing service; (iv) Customer may not publish any benchmarking or other performance analysis of the Services, Content, or Technology; (v) except to the extent permitted by applicable law notwithstanding this limitation, Customer may not disassemble, decompile, reverse engineer or attempt to discover any underlying algorithm or method embodied by the Living Security Technology, and then only after thirty (30) days notice to Living Security; (vi) Customer may not copy any part of the Content, Technology or Services or mirror the Services on any site or system, except that Customer may copy Living Security’s APIs and Services documentation as reasonably necessary for Customer’s permitted use of the Services, provided that Customer uses the APIs and documentation in the exact form published, retains all branding and proprietary notices, and do not transfer the APIs or documentation to any other person; (vii) Customer may use the Services, Technology, and Content only by means of an interface provided or approved by Living Security; (viii) Customer may not remove any proprietary notices displayed on or with the APIs, documentation or other Services materials. Except for the limited use rights expressly stated in the Agreement, Living Security retains all right, title and interest in and to the Services, Technology, and Content.
4. Integration Features.
Living Security offers integration features for certain Third Party Technologies. For example, the Unify Service requires the use of data that Customer has collected using Third Party Technologies such as CrowdStrike or Microsoft End Point; and for example, Living Security may allow the Content to be accessed via third-party learning management platforms. Living Security does not endorse or recommend any service for which it offers an integration feature. Customer’s use of the Third Party Technology is subject to the legal agreement between Customer and the third party. Customer acknowledges that Living Security’s integration features may be unavailable or may not work properly if the third party’s API is unavailable or if the third party modifies its API or services in a way that impacts the Living Security integration feature. Living Security will use commercially reasonable efforts to modify its integration features to maintain compatibility with the third party’s APIs and services but may discontinue an integration feature without liability to Customer if there is a change in the service that creates an unreasonable cost or operational burden to Living Security.
6. Personal Data
6.2 Metadata and Aggregate Data. Living Security may collect and use metadata resulting from the provision of the Services to analyze and improve its services offering generally. For example, Living Security may use log data about user interactions with the Services to identify user experience issues or to make its training processes more effective. Living Security may aggregate Personal Data with personal data of its other customers (“Aggregate Data”) and use and commercialize the resulting data sets and insights derived from the analysis of the resulting data sets. All Personal Data remains the Confidential Information of Customer and Living Security shall not disclose any metadata or Aggregate Data to a third party free from the confidentiality restrictions stated in this Agreement unless it has been anonymized such that neither the Customer’s identity or the identity of any individual whose data was included could be derived from the data.
6.3 Privacy. Living Security will destroy the Customer Personal Data within ___ days of expiration or earlier termination of the Order(s) except for limited Personal Data that may be necessary for compliance with Living Security's reasonable and customary record keeping requirements in connection with the administration of the Customer’s account relationship. Living Security will cooperate with Customer in responding to any data subject requests for modification or erasure of personal data and with regulatory audits and requests for information by Customer's privacy regulators. Living Security will require any subprocessors who have access to the Personal Data to execute contractual commitments for the protection of Personal Data at least as stringent as those required of Living Security by this MSA.
7. Fees and Payments.
7.1 Fees. The fees for the Services are stated in the Order. Living Security may not increase the fees during Customer’s initial term but may increase its fees for any renewal term by giving Customer notice of the increase at least thirty (30) days prior to the expiration of the initial term or then current renewal term, as applicable. Fees are stated and must be paid in United States Dollars.
7.2 Payments. Living Security shall invoice fees as stated in the Order. Fees are non-refundable, even if Customer does not use the Services. Unless Customer has made other arrangements with Living Security, Customer must authorize and maintain a current valid means for Living Security to collect its fees for the Services via ACH at all times during the Term. Unless otherwise agreed in the Order, Living Security may charge invoiced amounts to Customer’s account or other agreed payment means on the date of invoice.
7.3 Sales Tax. The stated fees do not include any sales, use, VAT or like taxes (“Sales Tax”). Customer must pay any applicable Sales Tax that is properly invoiced by Living Security. Customer is not responsible for any tax on Living Security’s net income or capital.
7.4 Overdue Payments. Living Security may suspend or terminate Customer’s Services or the Order if its charge to Customer’s account or other agreed payment means is rejected or not timely paid for any reason. Living Security may charge interest on overdue amounts at the lesser of 1.2% per month or the highest non-usurious amount permitted by applicable law. If Living Security prevails in a legal action to collect an overdue amount, Customer must also pay Living Security’s reasonable costs of collection, such as attorney fees and court costs. If Living Security suspends Customer’s account for late payment, Customer must pay Living Security’s reasonable reinstatement fee.
8. Customer’s Obligations.
8.1 Fees. Customer must pay Customer’s fees when due as described above for the entire Term of Customer’s Order. Customer must not use or attempt to use the Services in a way that undermines Living Security’s ability to correctly calculate its fees.
8.2 Customer’s Security Obligations. Customer must use reasonable security precautions in connection with Customer’s use of the Services, such as requiring Customer’s Authorized Users to establish reasonably secure passwords and using commercially reasonable efforts to protect Customer’s systems and data from malware. Customer agrees that Customer is responsible under the Agreement for any action taken using Customer’s account credentials, even if the action was not authorized by Customer.
8.3 Authorized Users. Customer may authorize as Services users Customer’s Staff and the staff of any contractors that Customer retains to provide services to Customer in support of Customer’s internal business operations (each an “Authorized User”). Customer authorizes Living Security to act on the instructions of a user who authenticates using the account credentials Customer has established for an Authorized User. Customer is solely responsible for adding and removing users and other maintaining the user permissions and authentication credentials for Customer’s account. Customer is responsible for the use of the Services by Customer’s Authorized Users or any other person who gains access to the Services as a result of Customer’s failure to update user accounts or use reasonable security precautions.
8.4 Compliance with Law. Customer must use the Services in compliance with applicable law, including export laws as further detailed in Section 12.9 (Export Compliance).
8.5 Representations and Warranties. Customer represents and warrants to Living Security as of the effective date of each Order and on an ongoing basis that the information Customer submits to establish a Services account with Living Security and place an Order is true, correct, and complete.
9. Term, Termination and Suspension.
9.1.1 Order Term. The initial term of each Order begins on Order effective date and continues for the period stated in the Order. On expiration of the initial term, the Order renews for consecutive renewal terms of the same length as the initial term, unless either Customer or Living Security gives a notice of non-renewal at least thirty (30) days prior to the last day of the initial term or then current renewal term, as applicable. The initial term and all renewal terms of an Order are referred to as the “Term.”
9.1.2 MSA Term. The term of this Order begins on the earlier of the date that it is signed, if signed, or the effective date of the first Order that references this MSA. The MSA term shall continue for so long as any Order is in effect. For clarity, nothing in this MSA requires either party to enter into an Order, but any Order that is entered into is subject to this MSA.
9.2 Termination. Either party may terminate an Order, or the Agreement, on written notice if the other party is in material violation of any term of an Order or the Agreement, provided that if the violation is curable the terminating party must first give the other party a written notice describing the violation in reasonable detail and at least ten (10) days to cure the violation.
9.3 Suspension. Living Security may suspend Customer’s access to the Services or Content, or both, during any period that Customer is in material breach of the Agreement or Customer’s access to the Service, Content, or Technology creates a material security vulnerability. Living Security will give Customer at least two (2) business days’ advance notice of the suspension unless the suspension is made under emergency circumstances. Living Security will reinstate Customer’s access to the Services or Content when the grounds for suspension are cured unless Living Security has already terminated the Agreement as described in this Section.
9.4 Surviving Provisions. The following sections survive expiration or termination of the Agreement: Section 1 (Defined Terms) to the extent defined terms are used in other surviving sections, Section 4 (Conditions, Restrictions), Section 6 (Personal Data), Section 7 (Fees and Payments), Section 9 (Term, Termination, and Suspension), Section 10 (Remedies, Disclaimers, Indemnification, Limitation of Liability), Section 12 (General Terms), and any other terms that by their nature are intended to survive expiration or termination.
10. Remedies, Disclaimers, Indemnification, Limitation of Liability.
10.1 Warranty Remedy. If Living Security fails to meet the Services Warranty stated in Section 2 (Services), Living Security will attempt to cure the failure or if it is unable to cure the failure through commercially reasonable efforts, Customer may terminate the Order for the Services not meeting the Services Warranty, and Living Security will refund the fees under that Order for the month during which the failure occurred and any prepaid fees for unused Services. However, to be eligible for a warranty remedy under this section, Customer must give a written notice describing the failure no later than ten (10) days following the end of the calendar month in which the failure occurred and cooperate with Living Security’s reasonable efforts to cure the failure. The remedies stated in this Section are Customer’s sole and exclusive remedy for Living Security’ breach of the Service Warranty.
10.2 Warranty Disclaimer. Except for the Services Warranty stated in Section 1 (Services), Living Security makes no representations or warranties regarding the Services. Living Security disclaims any implied warranties, such as a warranty of merchantability, fitness for a particular purpose, and non-infringement, and any representation or warranty that may arise through a course of dealing. Customer acknowledge that the use of the Services may not be uninterrupted, error free, or completely secure.
10.3.1 General Reciprocal Indemnification. Each party shall indemnify and hold harmless the other party, the other party’s Affiliates, and each of their respective employees, directors, officers and agents (collectively the “Indemnitees”) from and against any liability, judgment, loss, damage, cost and other expense (including reasonable attorneys’ fees) (“Losses”) arising from a third-party claim or action brought against an Indemnitee that:
- arises from the indemnifying party’s breach of its privacy, security, or confidentiality commitments stated in this Agreement (“Privacy, Security Claims”);
- arises from the indemnifying party’s gross negligence or willful misconduct; or
- is for personal injury or death or damage to real property or tangible (physical) property arising from the indemnifying party’s negligence or other tort; (a “Claim”).
10.3.2 Living Security IP Infringement Claims Indemnification. Living Security shall defend Customer Indemnitees, at Living Security’s expense, from any claim asserted by an unaffiliated third party that Customer Indemnitees’ use of the Services, Content, or Technology (the “Indemnified Materials”) as permitted by the Agreement infringes or misappropriates the intellectual property rights of the third party recognized in the United States (an “IP Claim”) and shall pay any resulting loss or damage awarded by a court or other tribunal having jurisdiction over the IP Claim, provided, however, that Living Security’s obligations under this Subsection do not extend to an IP Claim to the extent it arises from the unauthorized modification of the Indemnified Materials, Customer’s use of the Indemnified Materials in combination with third party technology in a way that is not contemplated by the Living Security documentation, or Customer’s use of a version of the Indemnified Materials after a subsequent functionally-equivalent version that is free from the IP Claim has been made available to Customer by Living Security. In the event of an IP Claim Living Security may terminate the Agreement without liability other than to refund to Customer prepaid fees for unused Services, provided that it has first used commercially reasonable efforts to resolve the claim, such as through the purchase of a license or the modification of the Indemnified Materials. This Section states Customer’s sole and exclusive remedy in the event of an IP Claim.
10.3.3 Indemnification Procedures. The indemnified party shall provide the indemnifying party with prompt notice on learning of any indemnified Claim or IP Claim, provided that the failure to provide prompt notice shall not relieve the indemnifying party of its obligations under this Section except to the extent the failure adversely affected the defense or resolution of the Claim or IP Claim. The indemnifying party shall defend the Claim or IP Claim unless it tenders the defense to the indemnified party by written notice, in which case the indemnified party shall defend the Claim or IP Claim. The party required to defend the Claim or IP Claim shall control the defense of the claim, including selection of counsel, provided that the non-defending party may participate in the defense of a Claim or IP Claim with counsel of its choice at its expense. The non-defending party shall promptly comply with the reasonable requests of the defending party for information and assistance in connection with the defense of the Claim or IP Claim. The defending party may settle a Claim or IP Claim provided that the settlement fully resolves the liability of the indemnitees with respect to the Claim, and provided that the advance written consent of the non-defending party is required if the settlement requires any statement of culpability.
10.5 Exclusion of Consequential, Indirect Damages. Except for claims arising from a party’s breach of Section 12.2 (Confidential Information), or claims based on the party’s intentional breach of the other party’s intellectual property rights, neither party nor its affiliates, licensors, suppliers, resellers, distributors or subcontractors is liable to the other for any lost profits, lost revenue, lost business opportunity, or any indirect, special, incidental, punitive, or consequential loss or damage of any kind arising in connection with this Agreement, or any loss or damage that could have been avoided by the claiming party’s reasonable mitigation, even if the party has been advised of or should be aware of the possibility of such damages. For avoidance of doubt, damages of the type described in this subsection that are awarded by a court or other tribunal to a third party as part of Losses covered under Section 10.3 (Indemnification) are not excluded by this Subsection.
10.6 Maximum Liability. Notwithstanding anything to the contrary in this Agreement, excluding the Liability Cap Exceptions, as defined below, the maximum aggregate liability of a party and its Affiliates, and their respective licensors, suppliers, resellers, distributors, and subcontractors under or in connection with this Agreement for any type of damages, claims or obligations shall not exceed the following: (i) for indemnification obligations for Privacy, Security Claims covered under Subsection 10.3.1 (i), two times the amount of fees paid or payable by Customer under the Order giving rise to the claim for the 12 months preceding the event giving rise to the claim; and (ii) for all other claims and obligations the amount of fees paid or payable by Customer under the Order giving rise to the claim for the 12 months preceding the event giving rise to the claim. For clarity, the maximum aggregate monetary limit stated in this subsection is not “per incident” but is an aggregate limitation applicable to all claims arising under or regarding this Agreement.
The “Liability Cap Exceptions” are: claims and indemnification obligations arising from a party’s gross negligence, or willful misconduct; (ii) claims and indemnification obligations for personal injury or death or for damage to tangible (physical) personal property arising from a party’s negligence or other tort; (iii) Living Security’s obligations under Section 10.3.2 for an IP Claim; (iv) claims arising from a party’s intentional breach of Section 10.2 (Confidential Information); (iv) claims based on a party’s intentional infringement or misappropriation of the other party’s intellectual property rights; and (v) payment obligations under Section 7 (Fees and Payments).
10.7 General. Each party acknowledges that the other party has entered into this MSA and the Order(s) in reliance on the limitations of remedies and liability stated in this MSA, and that these limitations reflect an agreed allocation of risk between Customer and Living Security. The limitations stated in this Section shall apply to any liability arising from any cause of action whatsoever, whether in contract, tort, commercial code, strict liability or otherwise, even if a limited remedy fails of its essential purpose. If these limitations as written are not permitted by applicable law, they shall apply to the extent permitted by applicable law.
11. Beta Services.
Living Security may invite Customer to test “Beta” services at no charge. Beta services will be designated as test, beta, pilot, limited release, developer preview, non-production, evaluation or with a similar description. Beta services are for evaluation purposes and not for production use, are not considered “Services” under this Agreement, are not supported, and may be subject to additional terms. Living Security may discontinue Beta Services at any time in its sole discretion and may never make the Beta Services generally available. If a generally available version is released, there may not be an automatic update path from the Beta version to the generally available version. If not earlier terminated, any Beta services trial period will expire on the date that the Beta service is released on a generally available basis. Beta Services are provided AS IS, and Living Security has no liability for any harm or damage arising out of or in connection with Customer’s use of a Beta Service. Living Security may terminate a Beta service and delete Customer’s files and related information at any time, for any or no reason.
12. General Terms.
12.1 Feedback. Customer agrees that Living Security is licensed to use and commercialize any feedback or suggestions that Customer provides regarding the Living Security Content, Technology, or Services to improve Living Security’s existing or future products and services on a perpetual basis without payment of any royalties or compensation to Customer and that Customer will not assert any patent or other claim against Living Security based on its use or commercialization of the feedback or suggestions.
12.2 “Confidential Information” means any non-public information that a party (the “recipient”) receives from or learns about the other party (the “discloser”) as a result of activities contemplated by the Agreement that the recipient should reasonably understand to be confidential, given the nature of the information or the circumstances of its disclosure, but not including any information that is developed by the recipient independently and without reference to the discloser’s Confidential Information, or information that is or becomes available from a source other than discloser so long as the source did not, to recipient’s knowledge, acquire the information as a result of a violation of a duty of confidentiality to discloser. For clarity, Customer’s Confidential Information includes Personal Data, and Living Security’s Confidential Information includes Content, Technology and information Customer learn about Living Security’s Services as part of the relationship contemplated by this Agreement. Recipient agrees not to use or disclose the discloser’s Confidential Information except to provide or use the Services, as applicable, or to exercise legal rights or obligations in connection with the Agreement. Recipient shall use reasonable care to protect the discloser’s Confidential Information from unauthorized use and disclosure. Living Security’s use of reasonable care as to Customer’s Confidential Information that is part of Customer’s Content is met by the use of the safeguards described in Section 12.3 (Security). Recipient shall return or destroy the discloser’s Confidential Information on request, except as necessary for reasonable and customary business record-keeping purposes. Recipient is responsible for a breach of this Section by any person to whom it has disclosed the discloser’s Confidential Information to the same extent as for its own breach of this Section. Notwithstanding the foregoing, recipient may disclose discloser’s Confidential Information in response to a subpoena, request from law enforcement, or as otherwise required by law provided that it gives reasonable advance written notice of the disclosure (unless notice is prohibited by law).
12.4 Insurance. Without limiting Living Security’s indemnification obligations or other liability or obligations under the Agreement, Living Security shall maintain at its expense during the Term, insurance of the following types with a coverage amount at or above the following amounts: (i) General Liability, $2 million each occurrence, $4 million aggregate; (ii) Automobile Liability, $1 million each occurrence; (iii) Umbrella Liability for General Liability and Automobile Liability of $1 million each occurrence and $1 million aggregate; (iv) Worker’s Compensation meeting statutory requirements, and (v) Professional Indemnity and Cyber Liability $5 million per claim and in the aggregate. The insurance must be placed with carriers that have an AM’s Best Rating of no less than A- VIII. The policies must provide coverage on a primary and noncontributory basis and Living Security agrees to waive, and will require its insurers to waive, all rights of subrogation against Company. Living Security shall cause its insurers to issue certificates evidencing the required coverages and as to the General Liability and Automobile Liability naming Company as additional insured, and shall provide the certificates to Company no later than thirty (30) days following the Effective Date of this Agreement. Living Security shall require its insurers to give Company at least thirty (30) days written notice of policy cancellation.
12.5 Governing Law, Disputes. The Agreement is governed by and should be interpreted under the laws of the State of Texas, and the United States of America, as applicable, without giving effect to any conflicts of law principles that would require the application of the law of a different jurisdiction. The parties expressly and irrevocably disclaim and waive the application of the United Nations Convention on Contracts for the International Sale of Good and the Uniform Computer Information Act. Each party agrees that it shall bring any lawsuit or other legal action related to this Agreement in the State or Federal courts sitting in Travis County, Texas. Neither party shall dispute the personal jurisdiction of such courts, and each party waives any objection it may have as to the venue of such court. To the extent permitted by applicable law, each party irrevocably waives the right to a trial by jury in respect of any litigation arising out of this Agreement and the parties’ activities regarding this Agreement. A party may not bring an action in relation to this Agreement more than two (2) years after the date that the cause of action accrued. The prevailing party in any action to enforce this Agreement, including an action for equitable relief, may recover its costs and expenses of the action from the other party, including reasonable attorney fees.
12.6 Informal Dispute Resolution. Except as provided in Section 12.6 (Injunctive Relief) each party agrees that it will not file a lawsuit or other legal action in connection with the Services or the Agreement unless it has first given the other party written notice of the dispute, and attempted to resolve the dispute through good faith negotiation.
12.7 Injunctive Relief. Notwithstanding anything in this Agreement to the contrary, this Agreement does not prohibit, condition or delays a party’s right to seek injunctive relief in any court of competent jurisdiction to address the other party’s infringement or misappropriation of its intellectual property, or the other party’s breach of its confidentiality obligations under this Agreement.
12.8 Notices. Customer’s notices must be submitted via ticket on the customer portal, and copied by electronic mail to email@example.com. If Customer sends a notice of breach of the Agreement, a legal dispute, a legal claim, or other legal matter, Customer must copy Customer’s notice to firstname.lastname@example.org, and must also send Customer’s notice via first class United States mail to Living Security’s physical address appearing on its Site on the day the notice is transmitted electronically. Living Security’s notices to Customer must be given to Customer’s primary account contact at the email address in Living Security’s records. Living Security’s legal notices to Customer must be copied via first class United States mail to Customer’s physical notice address, or if Customer’s physical address is outside of the United States, via a reputable and established international priority mail service on the date the notice is transmitted electronically. Notices are deemed given, received and effective as of the time transmitted by electronic mail, or if that time does not fall on a business day, as of the beginning of the first business day following the time transmitted. Notices must be given in the English language. A party may change its address for notice by giving notice in the manner stated in this Section.
12.9 Export Compliance. Customer may not permit users to access or use the Services in a U.S.-embargoed country or in violation of any U.S. export law or regulation, or in a manner that causes Living Security to be in violation of U.S. export laws, even if the use is permitted the laws applicable to Customer or Customer’s users. For example, Customer may not authorize any person to use the Services that is on the list of Specially Designated Nationals and Blocked Persons issued by the U.S. Treasury Department’s Office of Foreign Asset Control (OFAC) or who is located in or is a national of any country that is embargoed under United States export laws; and Customer may not use or permit the use of the Services to process or store any data that is subject to the International Traffic in Arms Regulations maintained by the U.S. Department of State, or permit the use of the Services by any person who Customer know or have reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons, or rocket systems, space launch vehicles, or sounding rockets, or unmanned air vehicle systems. Each party represents that it is not on any restricted persons list maintained by the U.S., Canada, or any member of the European Union.
12.10 Anti-Corruption. Each party represents that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from the other’s employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If either party learns of any violation of the above restriction, it will promptly notify the other party.
12.11 Force Majeure. Except for Customer’s payment obligations, neither party is in violation of the Agreement if the failure to perform is due to an event beyond that party’s reasonable control, such as a significant failure of the power grid or Internet, denial of service attacks, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorism, or other acts or events for which precautions are not generally taken in the industry.
12.12 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Orders), without the other party’s consent to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns. Living Security remains responsible for its suppliers and subcontractors acts and omissions in breach of this Agreement to the same extent as for its own acts and omissions.
12.13 Publicity. With Customer’s prior written consent in each case Living Security may identify Customer in its marketing and sales materials and may include Customer’s Marks in an appropriate area of its website and marketing materials, provided that it does not state or imply that Customer endorse the Living Security Services. Living Security will use and display Customer’s Marks in accordance with Customer’s trademark usage guidelines communicated to Living Security in writing. Any goodwill accruing from Living Security’s use of Customer’s Marks shall accrue to Customer.
12.14 Relationship of the Parties. The parties are independent contractors. Neither party is the agent of the other, and neither party is authorized to make any representations, contract, or commitment on behalf of the other. The use of the words “partner” or “partnership” in this Agreement or otherwise refers only to a business relationship, and does not create or reflect any legal partnership, joint venture, or other fiduciary or other special relationship between the persons described as partners. The parties do not agree to any exclusivity in regards to the subject matter of this Agreement and each party is free to contract with third parties, including competitors of the other party, for transactions of the type covered by this Agreement in any market, worldwide.
12.15 Interpretations. (i) In calculating any period of time under this Agreement, the day of the act, event or default from which the designated period of time begins to run is not to be included. (ii) The term “person” refers to any legal person, and may mean a natural person (individual), a legally created person (such as an entity, trustee, or executor), or an entity (such as a corporation, partnership, or limited liability company). (iii) The use of the word “including” should be read to mean “including, without limitation.” (iv) All references to monetary amounts mean United States Dollars unless otherwise expressly stated. (v) The term “parties,” either in lower- or upper-case form, refers to the signatories to this Agreement unless expressly referred to as a “third” party. (vi) For notice purposes, the words “business day,” “business hours,” or the like means Monday – Friday, 9:00 a.m. – 5:00 p.m., United States Central Time, excluding federal public holidays in the United States. (vii) A reference to “day” shall mean a calendar day, unless expressly designated as a “business” day. (viii) All software and other technology provided for Customer’s use is licensed and not sold; any references to a sale or purchase of software or other technology means the sale or purchase of a subscription. (ix) Any requirement in this Agreement that a statement be written, in writing, or a like requirement is satisfied by an email or other digital form of writing unless expressly stated otherwise. (x) Nouns stated in the singular imply the plural as indicated by the context, and pronouns that are gender specific refer to either gender. (xi) The Section captions in this Agreement are for convenience only; they are not part of this Agreement and may not be used to interpret the terms of this Agreement.
12.16 Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
23.15 Severability. In the event one or more of the terms of this Agreement are adjudicated invalid, illegal, or unenforceable, the adjudicating body may either interpret this Agreement as if such terms had not been included or may reform such terms to the limited extent necessary to make them valid, legal or enforceable, consistent with the economic and legal incentives underlying the Agreement.
12.17 Changes to the Services. Customer agrees that Customer’s purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Living Security regarding future functionality or features. Customer acknowledges that Living Security may modify or suspend any of its Services offerings at any time. If a modification or suspension materially and adversely affects Customer’s use of the Services, Customer may terminate the Agreement by giving written notice of the change no later than 30 days following the date of the change and receive a refund of any prepaid fees for unused Services as Customer’s sole and exclusive remedy.
12.18 General Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
12.19 Representation by Individual Submitting the Order. If an individual submits an Order, the individual represents that: (i) if the individual submits the Order on his or her own behalf (including as a sole proprietor), the individual is old enough to enter into contracts and otherwise has the legal capacity to enter into contracts under applicable law; or (ii) if the individual submits the Order on behalf of a company or other legal entity, the individual has the legal power and authority to bind that entity to the Order and this MSA.
12.20 Waiver. No right or remedy arising regarding this Agreement shall be waived by a course of dealing between the parties, or a party’s delay in exercising the right or remedy. A party may waive a right or remedy only by signing a written document that expressly identifies the right or remedy waived. Unless expressly stated in the waiver, a waiver of any right or remedy on one occasion will not be deemed a waiver of that right or remedy on any other occasion, or a waiver of any other right or remedy.
12.21 Entire Agreement and Order of Precedence. This Agreement is the entire agreement between Customer and Living Security regarding Customer’s use of Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this MSA or an Order will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any preprinted term or condition stated in any business form is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) this MSA, (2) the Order, and (3) any other document that is part of the Agreement.