Master Solutions Agreement
Last Updated Date:
June 17, 2019
In consideration of the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
Customer will purchase and Arctic Wolf will provide the specific products and services (“Solutions”) as specified in the applicable Order Form. A Solution may consist of hardware equipment (“Equipment”), a cloud service offering (“Service”) and/or software (“Software”) as specified on the Order Form. Each Solution is provided on a subscription basis for a set term designated on the Order Form (each, a “Subscription Term”). Customer may access and use the Solutions solely for its own benefit and in accordance with the terms and conditions of this Agreement, the associated Documentation and any scope of use restrictions designated in the applicable Order Form. “Documentation” means user manuals, training materials, product descriptions and specifications and other printed information relating to the Arctic Wolf Solution, as in effect and generally available from Arctic Wolf on the Arctic Wolf Website, Arctic Wolf Partner Portal, and Arctic Wolf Customer Portal, expressly excluding marketing and sales collateral and materials.
If the Order Form specifies that Customer will receive Equipment, then Customer is responsible for installing the Equipment at the location(s) specified by Arctic Wolf. The Equipment is a part of the Solutions and loaned to Customer by Arctic Wolf, not sold. Customer acknowledges that if Customer attempts to install or use the Equipment at a location other than specified by Arctic Wolf, the Solutions may fail to function or may function improperly. Other than normal wear and tear, Customer is directly responsible for loss, repair, replacement and other costs, damages, fees and charges if Customer does not return the Equipment to Arctic Wolf in an undamaged condition. Customer is responsible for all fees associated with shipping the Equipment back to Arctic Wolf upon termination of the Subscription Term.
If the Order Form specifies that the Solutions includes a Service, then, subject to the terms and conditions of this Agreement, Customer may access and use the Service for its own internal business purposes. Certain Arctic Wolf Solutions require one-time professional services such as on-boarding shall be specified on an applicable Order Form.
To the extent Arctic Wolf provides Software for use with the Solutions, subject to all of the terms and conditions of this Agreement, Arctic Wolf grants to Customer a limited, non-transferable, non-sublicensable, non-exclusive license during any applicable Subscription Term to install the object code form of the Software, but only in connection with Customer’s use of the Solutions and otherwise in accordance with the Documentation and this Agreement. Customer must implement Software in order to enable features of the Solutions. Customer acknowledges that any changes made to the Customer’s infrastructure or configuration of the Solutions after initial deployment may cause the Solutions to cease working or function improperly and that Arctic Wolf will have no responsibility for the impact of any such Customer changes. The Software may also include certain additional software add-ons that offer enhanced features and functionality available with the additional purchase of applicable licenses.
5. Reservation of Rights and Ownership
Arctic Wolf owns the Equipment, Service, Software, and any associated Documentation (“Arctic Wolf Technology”). Customer acknowledges and agrees that (a) the Arctic Wolf Technology is protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws, (b) Arctic Wolf retains all right, title and interest (including, without limitation, all patent, copyright, trade secret and other intellectual property rights) in and to the Arctic Wolf Technology, any other deliverables, any and all related and underlying technology and any derivative works or modifications of any of the foregoing, including, without limitation, as may incorporate suggestions from Customer as contemplated by Section 11 below, (c) there are no implied licenses and any rights not expressly granted to Customer hereunder are reserved by Arctic Wolf, (d) the Software and access to the Services are licensed on a subscription basis, not sold, and Customer acquires no ownership or other interest (other than the license rights expressly stated herein) in or to the Services, any Software and Documentation and (e) the Services are offered as an on-line, hosted solution, and Customer has no right to obtain a copy of the software underlying the Services.
6. Restrictions, Responsibilities, Prohibited Use and Customer Data
- 6.1 Restrictions. Customer agrees not to, directly or indirectly: (i) modify, translate, copy or create derivative works based on the Arctic Wolf Technology, (ii) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Solutions, except to the extent expressly permitted by applicable law (and then only upon advance notice to Arctic Wolf); (iii) interfere with or disrupt the integrity or performance of the Solutions or the data contained therein or block or disrupt any use or enjoyment of the Solutions by any third party, (iv) attempt to gain unauthorized access to the Services or their related systems or networks or (v) remove or obscure any proprietary or other notice contained in the Arctic Wolf Technology, including on any reports or data printed from the Arctic Wolf Technology. Customer agrees to abide by the terms of the Acceptable Use Policy at https://arcticwolf.com/terms/Acceptable-user-policy/. If Arctic Wolf, in its reasonable discretion, determines that Customer’s use of the Solutions imposes an unreasonable or disproportionately large load on Arctic Wolf’s infrastructure or that Customer is abusing its use of the Solutions, Arctic Wolf may, temporarily suspend Customer’s access to the Solutions until such activity is rectified. If commercially practicable, Arctic Wolf shall provide Customer with notice prior to any such suspension and shall work with Customer in good faith to reinstate the Solutions promptly.
- 6.2 Responsibilities of Arctic Wolf. Arctic Wolf shall provide the Solutions as further described in the Solutions Terms at http://www.arcticwolf.com/terms/solutionsterms. The Solutions provided under this Agreement shall include any updates, upgrades, bug fixes, version upgrades or any similar changes that may be made available to Customer from time to time.
- 6.3 Customer Responsibilities. Customer must identify the administrative users for Your account (“Administrators”). Each Administrator will receive an administrator ID and password and will need to register with Arctic Wolf. Customer is responsible for notifying Arctic Wolf about changes to Administrators, including but not limited to termination, change of authority, and adding Administrators. Customer acknowledges and agrees that Administrators will be able to view all Customer Data and other traffic and activities that occur on Customer’s network and that Customer is responsible for all activities that occur under Administrator accounts. Administrator IDs are granted to individual, named persons and cannot be shared or used by more than one Administrator but may be reassigned from time to time to new Administrators. Customer shall (i) obtain any licenses and/or consents necessary for Arctic Wolf to perform its obligations under this Agreement, (ii) be responsible for ensuring the security and confidentiality of all Administrator IDs and passwords, (iii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Solutions, (iv) notify Arctic Wolf promptly of any unauthorized use of the Solutions or any breach, or attempted breach, of security of the Solutions and (v) not use the Solutions in a manner that would violate applicable laws or regulations.
- 6.4 Prohibited Use. Because Customer may access the Solutions from anywhere in the world, it is Customer’s responsibility to ensure that Customer has the right to access and use the Solutions where Customer is located. Customer represents and warrants that Customer is not a Prohibited Person nor owned or controlled by a Prohibited Person. “Prohibited Persons” shall mean a person or entity appearing on the lists published by the U.S. Department of Commerce, the U.S. Department of State, the U.S. Department of Treasury or any other list that may be published by the U.S. Government, as amended from time to time, that is prohibited from acquiring ownership or control of items under this Agreement, or with which Arctic Wolf is prohibited from doing business. Customer further represents that the Solutions shall not be used for or in connection with nuclear activities; the development of biological or chemical weapons, missiles, or unmanned aerial vehicles; to support terrorist activities; or in any other way that would violate economic sanctions laws. Customer agrees to promptly notify Arctic Wolf and terminate its use of the Solutions if Customer discovers that any of the foregoing conditions apply. Arctic Wolf may suspend any use of the Solutions it reasonably believes may be (or that is alleged to be) in violation of the foregoing.
- 6.5 Customer agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (i) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (ii) Customer will not (and will not permit any of its users to) access or use the Solutions in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer will not submit to the Arctic Wolf, directly or through the Solutions, any information that is controlled under the U.S. International Traffic in Arms Regulations.
7. Fees, Payment, Taxes, and Audit
- 7.1 For direct purchases made between Arctic Wolf and Customer, the Order Form shall be between Customer and Arctic Wolf and the following terms shall apply:
Pricing for the Solutions will be specified on an “Order Form”. All fees are payable in U.S. Dollars and are non-cancelable and non-refundable. Delinquent amounts shall bear interest at a rate equal to the lesser of one and one-half percent (1.5%) per month (eighteen percent (18%) per year) or the maximum rate permitted by law, whichever is less. If Customer fails to make any payments due under this Agreement or an applicable Order Form, Arctic Wolf shall notify Customer of such nonpayment. If a payment that is due remains unpaid for ten (10) days after Arctic Wolf provides Customer with notice of such nonpayment, Arctic Wolf may cease providing the Solutions without any liability to Arctic Wolf. The amounts payable to Arctic Wolf are exclusive of any sales, use, excise, value added, import, or other applicable taxes, tariffs or duties (“Taxes”). Customer is solely responsible for payment of all Taxes except for any taxes based solely on Arctic Wolf’s net income. If Customer is required to pay any Taxes, Customer shall pay such Taxes with no reduction or offset in the amounts payable to Arctic Wolf hereunder. If Arctic Wolf has the legal obligation to pay or collect Taxes for which Customer is responsible, Customer authorizes Arctic Wolf to charge Customer for such amount. If Customer believes that Arctic Wolf has billed Customer incorrectly, Customer must contact Arctic Wolf no later than thirty (30) days after the closing date on the first billing statement in which the error or problem appeared in order to receive an adjustment or credit. Inquiries should be directed to Arctic Wolf’s customer support department.
- 7.2 For purchases made by Customer through a partner authorized and licensed to sell and /or deliver Arctic Wolf Solutions (an “Authorized Partner”), the order form or other equivalent transaction document containing terms related to Fees, Payment, Taxes, Audit and other terms, as may be applicable, shall be between Customer and the Authorized Partner.
8. Compliance with Laws
Both parties represent and warrant that, during the term of this Agreement, the parties will comply with all applicable foreign, federal, state and local statutes, laws, orders, rules, regulations and requirements, including those of any governmental (including any regulatory or quasi-regulatory) agency in connection with Customer’s use of the Solutions.
Either party (as a “Discloser”) may disclose confidential and proprietary information, orally or in writing (“Confidential Information”) to the other party (as a “Recipient”). All such information shall be marked with a restrictive legend of the Discloser or, if disclosed orally, it shall be identified as confidential at the time of disclosure. Notwithstanding the foregoing, contract terms relating to Customer Data shall be set forth in Section 10. Notwithstanding the marking requirements of this section, Customer acknowledges that the following constitutes Confidential Information of Arctic Wolf: any trade secrets, know-how, inventions (whether or not patentable), techniques, ideas, or processes related to the Arctic Wolf Technology; the design and architecture of the Arctic Wolf Technology; the computer code, internal documentation, and design and functional specifications of the Arctic Wolf Technology; and any problem reports, analysis and performance information related to the Arctic Wolf Technology. Each party agrees to hold the other party’s Confidential Information in strict confidence, not to disclose such Confidential Information to third parties not authorized by the Discloser to receive such Confidential Information, and not to use such Confidential Information for any purpose except as expressly permitted hereunder. Each party agrees to take commercially reasonable steps to protect the other party’s Confidential Information and to ensure that such Confidential Information is not disclosed, distributed or used in violation of the provisions of this Agreement. The Recipient may disclose Confidential Information only (a) with the Discloser’s prior written consent and (b) to those employees, officers and directors with a clear and well-defined “need to know” purpose who are informed of and bound by the obligations of this Agreement. Notwithstanding the foregoing, The Recipient may disclose Confidential Information to the extent required by law. However, the Recipient will give the Discloser prompt notice to allow the Discloser a reasonable opportunity to obtain a protective order and such Confidential Information disclosed to the extent required by law shall otherwise remain confidential and subject to the protections and obligations of this Agreement. The Discloser agrees that the foregoing obligations shall not apply with respect to any information that the Recipient can document (i) is rightfully in its possession or known to it prior to receipt from the Discloser, (ii) is or has become public knowledge through no fault of the Recipient, (iii) is rightfully obtained by the Recipient from a third party without breach of any confidentiality obligation or (iv) is independently developed by employees of the Recipient who had no access to Discloser’s Confidential Information. Upon expiration or termination of this Agreement for any reason, each party shall promptly return to the other party or destroy all copies of the other party’s Confidential Information and copies, notes or other derivative material relating to the Confidential Information.
10. Customer Data
- 10.1 “Customer Data” means operational data and other internal business information submitted by or on behalf of Customer to the Solutions. As between the parties, Customer shall retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data as provided to Arctic Wolf and the Solutions (excluding any Arctic Wolf Technology used with the Customer Data). Customer hereby grants Arctic Wolf a non-exclusive, worldwide, royalty-free right to collect, use, copy, store, transmit, modify and create derivative works of data Customer Data solely to the extent necessary to provide the Solutions to Customer. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer represents and warrants to Arctic Wolf that Customer has all necessary rights, consents and permissions to collect, share and use all Customer Data as contemplated in this Agreement. Customer further represents and warrants that all Customer Data complies with the Acceptable Use Policy. Arctic Wolf aggregates Customer Data with other data so that results are non-personally identifiable with respect to Customer and also collects anonymous technical logs and data regarding use of the Solutions (“Aggregate/Anonymous Data”). Notwithstanding anything to the contrary herein, such Aggregate/Anonymous Data will be deemed Arctic Wolf Technology, which Arctic Wolf may use for any business purpose during or after the term of this Agreement, including without limitation to develop and improve the Solutions and services and to create and distribute reports and other materials. For clarity, this Section 10(a) does not give Arctic Wolf the right to identify Customer as the source of any Aggregate/Anonymous Data without Customer’s prior written permission.
- 10.2 European Union General Data Protection Regulation. If and to the extent Customer submits to Arctic Wolf personal data (as that term is defined under the GDPR) of individuals located in the European Union, United Kingdom and/or the European Economic Area, the Arctic Wolf Data Processing Agreement available at https://arcticwolf.com/terms/DPA/ (the “DPA”) is hereby incorporated into this Agreement unless Customer has signed a standalone Arctic Wolf Data Processing Agreement, in which case such terms shall control. Customer acknowledges that a list of Arctic Wolf’s current Authorized Sub-Processors pursuant to the DPA (the “List”) is available at the URL specified in the DPA, and that Customer’s is responsible for subscribing to updates to such List via the URL. It shall be Customer’s sole responsibility to notify Arctic Wolf of requests from data subjects related to the modification, deletion, restriction and/or objection of personally identifiable information.
If Customer provides any suggestions, ideas, enhancement requests, feedback, recommendations relating to the Solutions (“Feedback”), then Customer agrees that Arctic Wolf, in its sole discretion, may use or incorporate such Feedback into the Solutions. Any such Feedback shall not be deemed to constitute Confidential Information or to impose any confidentiality obligations on Arctic Wolf. Customer hereby grants to Arctic Wolf and its assigns a royalty-free, worldwide, perpetual, irrevocable, fully transferable and sublicenseable right and license to use, disclose, reproduce, modify, create derivative works from, distribute, display or otherwise distribute and exploit any such Feedback in order to improve the Solutions.
- 12.1 Arctic Wolf’s Indemnity. Arctic Wolf will defend any third-party claim or action brought against Customer to the extent based on the allegation that the Solutions infringe any intellectual property right (patents, utility models, design rights, copyrights and trademarks or any other intellectual property right) having effect in the United States and Arctic Wolf will pay any settlements that Arctic Wolf agrees to in a writing signed by an authorized officer of Arctic Wolf or final judgments awarded to the third-party claimant by a court of competent jurisdiction. The foregoing obligations do not apply with respect to the Solutions or portions or components of either (a) not provided by Arctic Wolf, (b) combined with other products, processes or materials that are not reasonably contemplated by the Documentation where the alleged infringement relates to such combination or (c) where Customer’s use of the Solutions is not strictly in accordance with this Agreement or the published Documentation.
- 12.2 Customer Indemnity. You agree to defend any claim or action brought against Arctic Wolf to the extent based on Customer’s alleged breach of Section 10 or the Acceptable Use Policy and Customer agrees to pay any settlements that Customer agrees to in a writing signed by an authorized officer of Customer or final judgments awarded to the third-party claimant by a court of competent jurisdiction.
- 12.3 Procedures. Each party’s indemnification obligations are conditioned on the indemnified party (a) providing the indemnifying party with prompt written notice of any claim, provided that the failure to provide such notice shall only limit the indemnifying party’s obligation to indemnify to the extent that the failure prejudices the indemnifying party in its defense of the claim (b) granting the indemnifying party the sole control of the defense or settlement of the claim, and (c) providing reasonable information and assistance to the indemnifying party in the defense or settlement of the claim at the indemnifying party’s expense.
- 12.4 Options. If Customer’s use of the Solutions has become, or in Arctic Wolf’s opinion is likely to become, the subject of any claim of infringement, Arctic Wolf may at its option and expense (a) procure for Customer the right to continue using and receiving the Solutions as set forth hereunder, (b) replace or modify the Solutions to make them non-infringing, (c) substitute an equivalent for the Solutions or (d) if Arctic Wolf, in its sole discretion, determines that options (a)-(c) are not reasonably practicable, terminate this Agreement and refund any pre-paid unused Fees.
- 12.5 Sole Remedy. THIS SECTION 12 STATES ARCTIC WOLF’S ENTIRE RESPONSIBILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
13. Warranty and Warranty Disclaimer
ARCTIC WOLF WARRANTS THAT, (I) THE SOLUTIONS PROVIDED UNDER THIS AGREEMENT DO NOT INFRINGE OR MISAPPROPRIATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY, AND (II) THE SOLUTIONS SHALL SUBSTANTIALLY PERFORM IN ALL MATERIAL RESPECTS AS DESCRIBED IN THE SOLUTIONS DOCUMENTATION. IN THE EVENT OF ANY BREACH OF SECTION 13, ARCTIC WOLF SHALL, AS ITS SOLE LIABILITY AND CUSTOMER’S SOLE REMEDY, REPAIR OR REPLACE THE SOLUTIONS THAT ARE SUBJECT TO THE WARRANTY CLAIM AT NO COST TO CUSTOMER OR IF ARCTIC WOLF IS UNABLE TO REPAIR OR REPLACE, THEN ARCTIC WOLF WILL REFUND ANY PRE-PAID FEES FOR SOLUTIONS NOT RENDERED/UNUSED. EXCEPT FOR THE WARRANTY DESCRIBED IN THIS SECTION, THE SOLUTIONS ARE PROVIDED WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES OF TITLE AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT THE SOLUTIONS ARE PROVIDED “AS IS” AND FURTHER ACKNOWLEDGES THAT ARCTIC WOLF DOES NOT WARRANT THAT (A) THE OPERATION OF THE SOLUTIONS WILL BE UNINTERRUPTED, OR ERROR FREE, (B) THE SOLUTIONS ARE NOT VULNERABLE TO FRAUD OR UNAUTHORIZED USE OR (C) THE FEATURES OR FUNCTIONALITIES OF THE SOLUTIONS WILL BE AVAILABLE AT ANY TIME IN THE FUTURE. CUSTOMER IS RESPONSIBLE AND ARCTIC WOLF SHALL HAVE NO RESPONSIBILITY FOR DETERMINING THAT YOUR PROPOSED USE OF THE SOLUTIONS COMPLIES WITH APPLICABLE LAWS IN YOUR JURISDICTION(S).
14. Limitation of Liability
FOR ANY CAUSE RELATED TO OR ARISING OUT OF THIS AGREEMENT, WHETHER IN AN ACTION BASED ON A CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR ANY OTHER LEGAL THEORY, HOWEVER ARISING, ARCTIC WOLF WILL IN NO EVENT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR (A) DAMAGES BASED ON USE OR ACCESS, INTERRUPTION, DELAY OR INABILITY TO USE THE SOLUTIONS, LOST REVENUES OR PROFITS, LOSS OF SOLUTIONS, BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA, LOSS RESULTING FROM SYSTEM FAILURE, MALFUNCTION OR SHUTDOWN, FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION, FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION, SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION OR BREACHES IN SYSTEM SECURITY OR (B) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR (C) ANY AMOUNTS THAT EXCEED THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER FOR THE SOLUTIONS THAT ARE THE SUBJECT OF THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT WHICH GIVES RISE TO SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY WHETHER OR NOT ARCTIC WOLF HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTHWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
15. Term and Renewal
This Agreement shall be in effect for the Subscription Term specified in the Order Form.
- 15.1 For direct purchases made between Arctic Wolf and Customer, the Order Form shall be between Customer and Arctic Wolf and the following terms shall apply:
The Subscription to the Solutions will automatically renew at the end of the initial Subscription (i) for the same period of time as the initial Subscription and (ii) will renew at the then-current price at the time of renewal. If Customer would like to opt out of renewal Subscription or modify any of the terms of the renewal Subscription prior to renewal, then Customer must notify Arctic Wolf no less than sixty (60) days prior to the renewal Subscription Start Date.
- 15.2 For purchases made by Customer through an Authorized Partner, the Order Form or other equivalent transaction document containing the terms related to Term, Renewal and other terms, as may be applicable, shall be between Customer and the Authorized Partner.
Except as expressly provided herein, no modification of this Agreement will be effective unless contained in writing and signed by an authorized representative of each party. Arctic Wolf may make changes to terms located at a URL referenced in this Agreement, including this Agreement (collectively, the “URL Terms”) from time to time. Arctic Wolf will post the amended terms and will update the “Last Updated Date” at www.arcticwolf.com/terms/msa. By continuing to access or use the Solutions after Arctic Wolf has provided Customer with such notice of a change, Customer is indicating that it agrees to be bound by the modified terms. If the change has a material adverse impact on Customer and Customer does not agree to the change, Customer must notify Arctic Wolf within 30 days of the applicable Last Updated Date. If Customer notifies Arctic Wolf as required, then Customer will remain governed by the terms in effect immediately prior to the change until the end of the then-current Subscription period (or, in the case of Services, the completion of the applicable Services). If the Subscription period is renewed, it will do so under the updated URL Terms.
Either party may terminate this Agreement for cause if the other party commits a material breach of this Agreement, provided that such terminating party has given the other party ten (10) days advance notice to try and remediate the breach. Upon termination, You agree to cease all use of the Solutions and Arctic Wolf Technology, installed or otherwise, and destroy all copies of any Arctic Wolf Technology that are in Your possession or under Your control and promptly remove and return all Equipment to Arctic Wolf. Except as otherwise required by law, upon termination Arctic Wolf will remove, delete, or otherwise destroy all copies of Customer Data in its possession. Sections 7 (only as to amounts due and owing) and 9 through 16 will survive the non-renewal or termination of this Agreement. Arctic Wolf reserves the right to modify the Solutions in Arctic Wolf’s sole discretion and without notice provided that such changes shall not materially decrease the Solutions that Customer has subscribed to during the then-current term.
- 18.1 All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given: (a) when delivered by hand (with written confirmation of receipt); (b) on the next business day after the date sent, if sent for overnight delivery by a generally recognized international courier (e.g., FedEx, DHL, etc.) (receipt requested); or (c) on the date sent by e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient. Such communications must be sent to the respective parties at the addresses set forth on the Order Form.
- 18.2 The parties to this Agreement are independent contractors. Neither party has the authority to bind the other party without the express written authorization of the other party. Nothing herein may be construed to create an employer-employee, franchisor-franchisee, agency, partnership, or joint venture relationship between the parties
- 18.3 This Agreement shall inure to the benefit of and be binding upon the respective permitted successors and assigns of the parties. Customer shall not be entitled to assign, subcontract, delegate or otherwise transfer any of its rights and/or duties arising out of this Agreement and/or parts thereof to third parties, voluntarily or involuntarily, including by change of control, operation of law or any other manner, without Arctic Wolf’s express prior written consent. Any purported assignment, subcontract, delegation or other transfer in violation of the foregoing shall be null and void. No such assignment, subcontract, delegation or other transfer shall relieve the Beeline of any of its obligations hereunder.
- 18.4 The rights and obligations of the parties under this Agreement shall not be governed by the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods or the United Nations Convention on the Limitation Period in the International Sale of Goods, as amended. Rather, this Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California, without regard to the conflict of laws principles thereof. The parties hereby agree and consent that any and all causes of action arising under this Agreement shall have exclusive jurisdiction and venue in any state or federal court of competent jurisdiction sitting in San Mateo, California. The parties hereby consent to the jurisdiction and venue of such courts for resolution of all causes of action arising under this Agreement upon proper service of process, and hereby waive any objections to the jurisdiction and venue thereof.
- 18.5 Each party acknowledges and agrees that any dispute or claim that may arise out of or relate to this Agreement is likely to involve complicated and difficult issues and, therefore, each such party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
- 18.6 No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies under this Agreement are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
- 18.7 If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable. The parties agree to replace such void or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purpose of such void or unenforceable provision.
- 18.8 This Agreement (including the exhibits hereto) constitutes the parties’ entire agreement by and between the parties with respect to the subject matter hereof and supersedes any prior or contemporaneous agreement or understanding by and among the parties with respect to such subject matter. Except as otherwise provided herein, this Agreement may be amended, modified or supplemented only by an agreement in writing signed by each party.
- 18.9 In the event an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted mutually by the parties and no presumption or burden of proof will arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.