For Canada: Terms of Service.
For United States:
These Terms of Service (“Terms of Service”) govern the business relationship between Client (as that term is defined in the applicable SOW that is governed by these Terms of Service) and Arete Advisors, LLC (“Arete”). By Client using the Services, Client agrees to be bound by these Terms of Service and each applicable SOW (collectively, the “Agreement”). These Terms of Service are binding on Client as of the Effective Date set forth on a fully executed SOW.
Arete and Client are referred to in these Terms of Service individually as a “Party” and collectively as the “Parties”. All references in these Terms of Service to a “Third Party” or the “Third Parties” means any person or entity other than the Parties themselves. All references in these Terms of Service to “including” are deemed to mean “including, without limitation.”
Arete is in the business of, among other things, providing cybersecurity consulting, data breach remediation, digital forensics, cybersecurity compliance, managed cybersecurity services and other cybersecurity services. Client desires to retain and secure certain of the services of Arete. In consideration of the agreements, representations, warranties, promises and covenants contained herein, and other good and valuable consideration, the receipt, sufficiency and adequacy of which are hereby acknowledged, the Parties, intending to be legally bound, agree to the foregoing and as follows:
1. Framework. Client hereby engages Arete to perform those certain services as set forth in one or more Statement(s) of Work (each, an “SOW”) agreed to in writing by the Parties (the “Services”). Arete hereby accepts such engagement set forth in each SOW and agrees to perform the Services set forth in each SOW, subject to the terms and conditions of these Terms of Service. No modification of any SOW shall be effective unless and until both Arete and Client expressly agree to such modification in a written amendment signed by an authorized representative of each Party. Any valid termination of an individual SOW will not affect these Terms of Service or any other SOW. From time to time, the Parties may discuss potential additional services that Arete is capable of providing or that Client is seeking from Arete. The Parties agree that regardless of the nature, frequency or duration of these discussions, Arete is not responsible for, and has not agreed to perform, any services unless and until such services are set forth in an executed SOW.
2. Term. The term for each SOW shall be set forth in each SOW. If a SOW does not include a term, the term of the SOW shall last until the earlier of Arete completing the applicable Services or either Party terminating in accordance with these Terms of Service. Unless earlier terminated in accordance with these Terms of Service, these Terms of Service shall remain in place until the expiration of all SOWs to which they apply (the “Term”).
(a) Either Arete or Client may terminate any SOW as a result of a material breach of these Terms of Service or the applicable SOW by the other Party if: (i) the non-breaching Party provides written notification to the other Party providing reasonably sufficient detail regarding the breach; and (ii) such material breach is not cured or resolved within thirty (30) calendar days of receipt of such notification (“Cure Period”); provided such Cure Period shall be extended to accommodate any longer period reasonably required to cure or resolve a breach that cannot reasonably be cured within thirty (30) calendar days; provided further that the cure period for failure by Client to make a payment hereunder shall be ten (10) calendar days after the applicable due date. Arete may terminate any SOW if Arete determines in its sole discretion that continued performance of any Service would violate any applicable law, rule, regulation, ordinance, or regulator guidance (collectively, “Laws”).
(b) Either Party may terminate any SOW immediately upon written notice to the other Party if such other Party becomes insolvent, makes or has made an assignment for the benefit of creditors, is the subject of proceedings in voluntary or involuntary bankruptcy instituted on behalf of or against such Party (except for involuntary bankruptcies that are dismissed within sixty (60) days), or has a receiver or trustee appointed for substantially all of its property.
(c) Termination of any SOW for any reason shall not affect Client’s obligation to pay any sums then due and payable hereunder (including, without limitation, sums for Services performed up to and including the effective date of termination and/or any termination fee) or any additional remedies available to Arete in law or equity. Any pre-payments or deposits held by Arete at the time of termination may be applied by Arete, in its sole discretion, to any fees or amounts outstanding and then due and payable.
(d) Upon termination of any SOW for any reason, except as set forth in Section 3(b) above, all rights and obligations of both Parties, including all licenses granted hereunder, shall immediately terminate.
4. Fees and Expenses. The fees for Services rendered by Arete will be as set forth in the applicable SOW. Fees will be invoiced in advance in the frequency set forth in the applicable SOW; provided, if such invoicing information is not set forth in the applicable SOW, Arete will invoice all fees in advance on a monthly basis. All fees are non-refundable. In addition, Client shall reimburse Arete for all out of pocket expenses incurred by Arete in performance of the Services hereunder with no mark-up, including without limitation, the actual reasonable cost of travel and transportation, mileage (payable at the standard IRS rate), tolls, parking, airfare, hotel accommodations and meals. In addition, Client shall reimburse Arete for all out of pocket expenses incurred by Arete in relation to any actual or threatened legal actions brought by Third Parties in relation to any actual or alleged breach of information security, loss of data, or operational disruption, including, Arete’s expenses to retain legal counsel, preserve records, reply to requests for information, participate in depositions, respond to subpoenas, prepare written materials, and appear in court proceedings. Arete will invoice Client periodically for such reimbursement, and will maintain reasonable records related to such expenses. If there is a significant transaction or new issue that requires us to spend a substantial amount of time that was not anticipated in our fees, there may be additional billings under separate SOWs. For instance, the above SOW does not include any fees for professional time that may be required to assist in the preparation of a security questionnaire or audit. Client shall pay all taxes (including without limitation sales, use, excise, value added, and gross receipts) levied on the receipt of Services and Deliverables whether or not expressly stated in any SOW, except taxes based on Arete’s income. Arete has the right to charge interest at the lesser of the maximum amount allowed by Law or one and one-half percent (1.5%) per month on any undisputed amounts not timely paid pursuant to the applicable invoice. In any collection action relating to an SOW, Arete shall be entitled to recover its costs of collection, including reasonable attorney’s fees. All invoices are due and payable in accordance with the terms set forth on the applicable invoice, but if not stated, all invoices shall be due and payable within thirty (30) days of receipt without right of set-off or deduction.
5. Relationship; Assignment; Subcontracting; Non-Exclusivity.
(a) The Parties are independent contractors and do not have any employment, agency, partnership or joint venture relationship. No Party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other Party, whether express or implied, or to bind the other Parties in any respect whatsoever, and each Party agrees not to undertake any action to do any of the foregoing or that would tend to mislead anyone in this regard. Nothing herein shall be construed as providing for the sharing of profits or losses arising out of the efforts of any Party. Personnel assigned by Arete to perform Services hereunder shall at all times remain employees of Arete.
(b) These Terms of Service shall be binding on, and for the benefit of, the Parties and their respective permitted successors and assigns. Neither Party may assign any of its rights under these Terms of Service, except with the prior written consent of the other Party, which consent may not be unreasonably withheld. Notwithstanding the foregoing, Client and Law Firm Client hereby consent to Arete assigning all of its rights or delegating all of its duties to one or more affiliates, or to an acquiring or surviving entity in a merger or acquisition in which Arete is the acquired entity (whether by merger, reorganization, acquisition or sale of stock) or to the purchaser of all or substantially all of Arete’s assets. This Agreement shall bind and inure to the benefit of the parties to the Agreement and their respective successors, representatives, and permitted assigns.
(c) Arete may perform its obligations hereunder using one or more subcontractors, provided that it remains responsible for the performance of such obligations in accordance with the Agreement.
(d) These Services are not exclusive. Each Party reserves the right to contract with other companies, partnerships, individuals or entities during the Term to provide or procure services of any kind, including services similar to the Services.
(e) Client’s obligation to pay for any Services or Deliverables is not contingent on Arete’s performance or delivery of any other Services or Deliverables. Client acknowledges and agrees that Client enters into each SOW without reliance on recovery of any amounts from Third Parties, including, without limitation, from an insurance carrier or responsible threat actor.
6. Intellectual Property.
(a) The Services and all other materials provided by Arete hereunder, including, but not limited to, all documents, manuals, reports, Records (as defined below), programs, software, data algorithms, ideas, concepts, models, intelligence, and other materials, and all intellectual property rights in each of the foregoing (collectively, the “Deliverables”), are the exclusive property of Arete and its suppliers. Client agrees that it will not, and will not permit any entity or individual to: (i) use the Services or Deliverables, other than Client’s employees with a need to know and other user types with a need to know, if any, specifically authorized by Arete in the applicable SOW; (ii) display, modify, adapt, alter, make derivative works of, or translate any software or other components included in the Services or Deliverables; (iii) license, sublicense, lease, sell, rent, loan, distribute, outsource, permit timesharing or service bureau use of, commercially exploit, or otherwise transfer or make available any component of the Services or Deliverables to any Third Party; (iv) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, concepts, algorithms, structure or organization) of any software or other components included in the Services or Deliverables; (v) copy any software or other components included in the Services; or (vi) disclose or transmit any software or other components of the Services or Deliverables to any individual other than a user authorized by Arete; or (vii) access or use the Services or Deliverables to build or support, directly or indirectly, products or services competitive to Arete.
(b) Arete may utilize in its performance of the Services its proprietary software programs and source code, ideas, concepts, trade secrets, know-how, tools, models, processes, methodologies and techniques that have been originated or developed by Arete (either before or during the provision of Services) or that have been purchased by or licensed to Arete, and/or any other concept, compilation or process eligible for federal copyright or patent protection (collectively, the “Arete Materials”). Client agrees that Arete retains sole and exclusive right, title, and interest in and to all Arete Materials. Arete may: (i) modify existing Arete workflows; (ii) utilize enhanced Arete workflows developed by Arete; or (iii) develop new source code and computer programs (collectively, “Customized Code”), and Client shall not own or have any rights to the Customized Code created or customized by Arete in performance of the Services. Additionally, Arete is under no obligation to support, upgrade, or otherwise maintain Customized Code unless otherwise expressly agreed in writing between the Parties and subject to additional fees as agreed. Customized Code shall be licensed to Client under the same licensing terms, conditions and restrictions of any software license agreement between Client and Arete with which such Customized Code is utilized. Certain of the Arete Materials are licensed by Third-Party licensors (“Third Party Materials”) and are licensed to Client under separate terms and conditions established by the Third Party licensors as referenced in the applicable SOW or other notices or readme files available to the Client (collectively, “Separate Terms”). Other than Arete’s initial delivery obligations as expressly set forth in an applicable SOW, Client understands and agrees that Arete has no responsibilities or obligations under the Agreement (and Client has no rights or remedies under the Agreement) with respect to the Third Party Materials.
(c) As part of the Services, Arete may create and make available to Client certain reports (“Reports”) in anticipation of litigation. Reports incorporate Third Party intellectual property that Arete is prohibited from assigning to any third party, including Client (collectively, “Restricted Data”). If Client desires ownership of a Report after it is delivered, Arete will use reasonable efforts to create a Report for an additional, mutually agreed upon additional fee that does not include Restricted Data. Upon Arete’s receipt of all sums owed under the Agreement for a Report, Arete hereby grants to Client the non-exclusive, non-sublicensable, non-transferable, right to use such Reports solely in connection with Client’s business. Arete shall not distribute or otherwise make available components of the Reports that specifically identify Client to any Third Party, except by the order of a court or similar judicial or administrative body or other legal requirement.
(d) All rights in and to the Services and Deliverables not expressly granted to Client in these Terms of Service are reserved by Arete. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Client regarding the Services and Deliverables or any part thereof, including any right to obtain possession of any source code, data or other technical material related to any software or components.
(e) Client agrees that Arete shall own, and Client hereby assigns and shall in the future be deemed to have assigned to Arete all right, title, and interest in, all reporting of errors, problems, or defects, or suggestions for changes and improvements to the Services and Deliverables made by Client (collectively, “Feedback”). Client agrees and acknowledges that any products and services incorporating such Feedback are the sole and exclusive property of Arete, and Client will gain no right, title or interest in or to the Services or Deliverables, or any other software, intellectual property, products or other services by virtue of Client’s provision of Feedback to Arete or for any other reason.
(f) Subject to Section 6(c), work product resulting from the Services performed by Arete is hereby deemed the sole and exclusive property of Arete, including all intellectual property rights therein and thereto, and, except for the rights granted to Client under Section 6(a) and 6(c) above with respect to Deliverables, Client hereby assigns all right, title, and interest in and to such work product to Arete.
(g) No Party shall use any service mark or trademark of the other Party or refer to any other Party in connection with any product, equipment, promotion, or publication without the prior written consent of the applicable Party.
7. Client’s Obligations.
(a) Client acknowledges that Arete’s ability to perform the Services is dependent upon the full and timely cooperation of Client and any representative, agent, Third Party firm or contractor of Client and the accuracy and completeness of any and all information, data, and content provided to Arete by Client from time to time in connection with the Agreement or the performance of the Services (the “Client Materials”). Accordingly, Client agrees to provide full and timely cooperation to Arete in support of its provision of the Services and shall cause its representatives, agents, Third Party firms, and contractors to do the same.
(b) Client shall be responsible for the accuracy and completeness of all Client Materials and shall ensure the Client Materials do not infringe, violate, or misappropriate any applicable Laws or Third-Party rights (including material that is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous or in breach of any Third-Party intellectual property rights). Arete shall have no obligation to independently investigate or otherwise verify the nature or compliance of the Client Materials.
(c) Client shall provide Arete and its subcontractors the right and authority to enter its and its representatives, agents, Third Party firms, and contractors physical site(s) and to access and utilize such systems, databases, and Client Materials as reasonably required by Arete in support of its performance of the Services.
(d) Client shall notify Arete immediately if it learns of any unauthorized access or use of Client’s accounts or passwords for Arete Materials or Third Party Materials.
8. Representations, Warranties and Disclaimers. Arete represents and warrants that it shall perform the Services using personnel that are adequately trained and competent to perform the Services, and the Services shall be performed in a professional manner in accordance with these Terms of Service and any applicable SOW. Client’s exclusive remedies for breach of the warranties provided herein shall be the re-performance of the Services. Any claim for breach of warranty shall be made by providing written notice thereof to Arete within ten (10) calendar days following delivery of the applicable Services, together with a detailed explanation of the purported breach of warranty. EXCEPT AS EXPRESSLY PROVIDED HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES, THE DELIVERABLES, AND ANY ASSOCIATED WORK PRODUCT, DOCUMENTATION OR MATERIALS, INCLUDING ANY THIRD PARTY MATERIAL, DELIVERED UNDER THE AGREEMENT AND ANY SOW ARE PROVIDED “AS IS”, “AS AVAILABLE”, “WITH ALL FAULTS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, PERFORMANCE OR FITNESS FOR A PARTICULAR PURPOSE. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING, WITHOUT LIMITATION, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF THE SERVICES, NOT CONTAINED IN THESE TERMS OF SERVICE OR IN ANY APPLICABLE SOW SHALL BE DEEMED TO BE A WARRANTY. CLIENT ACCESSES AND USES THE SERVICES AND DELIVERABLES AT ITS OWN RISK.
(a) Each Party shall defend, indemnify and hold the other Party harmless from and against any loss or damage (including reasonable attorneys’ fees) to the extent incurred in connection with any actions or claims made or brought by a third Party against the indemnified Party alleging (i) negligence, recklessness or willful misconduct on the part of the indemnifying Party; (ii) the failure of the indemnifying Party to comply with applicable laws, rules or regulations; or (iii) any breach of this Agreement by the indemnifying Party, in accordance with the protocols set forth in Section (d) below.
(b) If a Third Party makes a claim against Client that the Services infringe, violate, or misappropriate the Third Party’s intellectual property rights, Arete shall defend Client against the claim and indemnify Client from the damages, liabilities, costs and expenses awarded by the court to the Third Party claiming infringement or the settlement agreed to by Arete if Client adheres to the protocols set forth in Section (d) below. Notwithstanding the foregoing, Arete shall have no obligations for any claim of infringement to the extent it is based on (i) use or combination of any portion of the Services with any products or services not supplied by Arete or licensed by a Third Party, including Third Party Materials; (ii) use of the Services not in accordance with these Terms of Service or other instructions by Arete; or (iii) incorporation of Client Materials into Deliverables or the performance of the Services. If any portion of the Services becomes or, in Arete’s opinion is likely to become, the subject of a claim of infringement, Client will immediately cease use of all Services upon notice from Arete and Arete shall do one of the following: (aa) obtain for Client the right to continue receiving and using such Services free of claims of infringement; (bb) modify such Services so that they no longer infringe without materially negatively affecting the functionality of the Services; (cc) replace such Services with non-infringing services without materially negatively affecting the functionality of the Services; or (dd) if options (aa)-(cc) are not commercially reasonable as determined by Arete, terminate the applicable SOW and refund to Client any prepaid fees for the applicable Services that were not provided. This Section is Client’s sole right and remedy and Arete’s sole obligation and liability for claims of infringement.
(c) Client shall indemnify, defend and hold Arete and its agents and representatives harmless against any liability, loss, costs, expense, fine, penalty, or damage (including reasonable attorneys’ fees) incurred in connection with any actions or claims made or brought against Arete by a Third Party arising from or related to (i) Client’s breach of the Agreement; (ii) the Client Materials or the use thereof; (iii) Client’s use of any Deliverables or the Services in violation of the Agreement or applicable Law; (iv) any actual or suspected security incident, loss of data, or degradation of operational capabilities that is affecting or has affected Client; or (v) instructions or specifications provided by Client; and (vi) reliance upon the Services or Deliverables by a Third Party.
(d) The indemnified Party shall give prompt written notice of any such claim to the indemnifying Party, give the indemnifying Party the opportunity to solely control, defend and resolve such claim and provide reasonable information and assistance to the defense and resolution such claim.
(e) This section shall survive any expiration or termination of the Agreement.
10. Limitations of Liability.
(a) TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL (I) EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR RELIANCE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST OR ANTICIPATED REVENUES OR PROFITS) ARISING OUT OF THE AGREEMENT OR ANY SOW, ON ANY THEORY OF LIABILITY EVEN IF SUCH PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (II) EXCLUDING THE PARTIES’ RESPECTIVE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 9(A) ABOVE, WITH RESPECT TO ANY SOW ENTERED INTO UNDER THESE TERMS OF SERVICE ARETE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO SUCH SOW, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED AMOUNTS ACTUALLY PAID OR PAYABLE BY CLIENT PURSUANT TO THE APPLICABLE SOW IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY. THIS SECTION SHALL SURVIVE ANY EXPIRATION OR TERMINATION OF THE AGREEMENT. Client acknowledges and agrees that Arete does not provide legal advice and that Client is solely responsible for engaging its own counsel for purposes of the receipt of legal advice.
(b) Without limiting the generality or applicability of the foregoing Client shall not seek, and Arete shall not be liable for, any damages arising from or in relation to any actual or alleged failure by Arete to: (i) detect or identify any security or network threats to or vulnerabilities of Client’s networks or other networks, systems, applications, facilities, assets, or operations; (ii) prevent, mitigate, or halt intrusions into or any damage to Client’s networks or other networks, systems, applications, facilities, assets, or operations; or (iii) meet or help Client meet any industry standard or any other requirements, including the payment card industry data security standard.
(c) Except for the intentionally harmful acts of Arete, Client acknowledges and agrees that, due to the nature of the Services, the provision of Services may cause, and Arete is not liable for (and Client waives all rights and remedies against Arete for), any disruptions of or damage to the information systems, applications, software, equipment, devices, networks, or the information and data contained therein, of the Client or any other Third Party. This includes any or all (i) loss or corruption of data; (ii) denial of service resulting in downtime or loss of network connectivity in or at facilities, servers, workstations, network appliances, web applications, and web sites owned or operated by the Client or other Third Party; (iii) corruption of any server or workstation operating system; (iv) potential loss of data in the event that Arete determines that performance of its Services requires reload or reinstallation of an operating system on any server, workstation, or other appliance; (v) access to corporate user accounts; (vi) viewing of data on network including email traffic, web traffic, and file transfer traffic; (vii) potential impact to production systems resulting in transaction loss; (viii) transfer of data to the U.S. from another country; or (ix) potential compromise of any computer, server, workstation, or other system resulting from work performed by Arete that may make any such device vulnerable to attack. Client acknowledges and agrees that Arete is not responsible for creating and managing back-ups of data and information that will be accessed by Arete during the performance of the Services. Arete is not liable for (and Client waives all rights and remedies against Arete for) the lack of such back-ups.
(a) The Parties agree that all confidential and proprietary information of a Party (“Disclosing Party”) disclosed to the other Party (“Receiving Party”) that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including without limitation the terms and conditions of the Agreement (including pricing and other terms reflected in any SOW), business and marketing materials, technology and technical information, and business processes, represent the Disclosing Party’s confidential and proprietary information. The Parties agree to restrict access to and disclosure of any information described in this Section 11 (hereinafter “Confidential Information”) to the directors, officers, employees, and contractors of the Receiving Party and its affiliates who have a need to know the Confidential Information for the purposes of fulfilling its obligations under the Agreement. Receiving Party shall not disclose the Confidential Information directly or indirectly, to any other person, firm, corporation, or entity. Receiving Party will use at least the same degree of care that it employs with respect to its own proprietary or confidential information, but in no event less than a commercially reasonable degree of care, to avoid inadvertent or unauthorized use, disclosure, publication, or dissemination of Confidential Information. Within seventy-two (72) hours of Receiving Party becoming aware of the inadvertent or unauthorized use, disclosure, publication, or dissemination of the Disclosing Party’s Confidential Information while in Receiving Party’s control (“Exposure”), Receiving Party shall provide Disclosing Party with written notice thereof in accordance with Section 14 of these Terms of Service. The notice of the Exposure of the Disclosing Party’s Confidential Information while in Receiving Party’s control shall include, but is not limited to (i) the cause of the Exposure, (ii) the source of the Exposure, (iii) if known, to whom or what the Confidential Information was used by, disclosed, published, or disseminated; and (iv) the steps taken to remediate the Exposure. Receiving Party shall reasonably cooperate with Disclosing Party’s additional questions about and investigation of the Exposure.
(b) There will be no restrictions on Receiving Party for any portion of the Confidential Information that (i) was lawfully known to or in the possession of Receiving Party at the time of its disclosure by Disclosing Party; (ii) was or becomes publicly available or publicly known through no fault, wrongful act or omission by Receiving Party; (iii) was received by Receiving Party from a Third Party, such Third Party having a bona fide right to disclose the Confidential Information and such Third Party not having any confidential relationship or obligation to Disclosing Party; (iv) was independently developed by Receiving Party without access to and/or use of Disclosing Party’s Confidential Information or a breach of these Terms of Service, such timely independent development supported by contemporaneous written evidence; or (v) was approved for release in writing by Disclosing Party. If Confidential Information is required to be disclosed by Law, court order or governmental agency order, if legally permitted Receiving Party shall immediately notify Disclosing Party that production or disclosure has been ordered and, to the extent permitted by Law, shall take all reasonable steps and cooperate with Disclosing Party to limit disclosure of the Confidential Information at the Disclosing Party’s expense. Receiving Party’s obligations under this Section 11 shall continue at all times following termination of the Agreement. Neither Receiving Party nor any of its employees, representatives or agents may reverse engineer, disassemble or decompile any prototypes, software or other tangible objects that embody Disclosing Party’s Confidential Information.
(c) The Parties acknowledge that Confidential Information may constitute unique, valuable and special trade secret and business information of Disclosing Party, and that disclosure thereof may cause irreparable injury to Disclosing Party. Accordingly, the Parties acknowledge and agree that monetary damages may not be adequate in the event of a default of this Section 11 and, therefore, Disclosing Party may be entitled to injunctive or other affirmative relief and/or to terminate the Agreement, without such constituting an election of remedies.
(d) At the request of Disclosing Party, Receiving Party shall promptly (and no later than thirty (30) calendar days after the request) return all Confidential Information to Disclosing Party and destroy all notes, analyses, compilations, studies, summaries and other derivative materials containing or based on Confidential Information. Any publicity or advertising proposed by a Party in connection with the subject matter of these Terms of Service or any SOW shall be subject to the prior written approval of the other Party. Each Party agrees that deletion of electronic copies of the Confidential Information of the other Party shall be subject to such receiving Party’s routine data backup policies (not to exceed 60 days from the date of backup), and that the actual deletion of such Confidential Information may occur as such backup media is overwritten; provided the Confidential Information (i) will be treated in accordance with the terms of these Terms of Service at all times in such Party’s custody, possession, or control, and (ii) such deletion will occur in any event no later than six (6) months following receipt by the Receiving Party. This Section 11 shall survive any expiration or termination of the Agreement.
(e) Notwithstanding anything in these Terms of Service to the contrary, the Parties agree that: (i) components of the Reports that specifically identify Client are deemed Client’s Confidential Information and all other aspects of the Reports are deemed Arete’s Confidential Information; (ii) the Services and Event Data is deemed Arete’s Confidential Information.
12. Compliance Matters. Each Party retains responsibility for compliance with all Laws governing any data, information, materials, software, or other items of any nature provided by such Party to the other Parties in connection with the Agreement, or to which a Party provides access or authorizes the other Parties to access in connection with the Agreement (collectively, “Company Data”). Each Party represents and warrants that it has sufficient rights under applicable Law to permit the other Party to access, use, or otherwise process any personal data it makes available to such other parties. Client authorizes and will provide Arete with access and use of Company Data to the extent required to perform the Services under the Agreement. Client shall comply with all Laws applicable to its access to and use of the Services, including anti-corruption and employment Laws. Without limiting the foregoing, Client shall comply with the relevant export administration and control Laws, as may be amended from time to time, including, without limitation, the United States Export Administration Act, to ensure that the Services are not transferred or exported (directly or indirectly) in violation of U.S. Law. Client agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Arete, or any products utilizing such data, in violation of the United States export Laws, including to regions that the United States and/or the European Union maintains an embargo or comprehensive sanctions (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity subject to individual prohibitions (e.g., parties listed on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders) (collectively, “Designated Nationals”), without first obtaining all required authorizations from the U.S. government and any other applicable government. Client represents and warrants that Client is not located in, or is under the control of, or a national or resident of, an Embargoed Country or Designated National.
13. Notices. All notices delivered pursuant to the Agreement shall be in writing, shall reference each applicable SOW, and shall be deemed given: (a) when delivered personally; (b) when delivered by email (provided the counterparty provides written acknowledgment of receipt or the delivering Party delivers follow-up by any of the methods listed herein); (c) one (1) business day after deposit for overnight courier with a nationally-recognized express courier; or (d) three (3) business days after sending by certified mail, return receipt requested. All notices will be sent to the addresses set forth in the SOW or to such other address as may be specified by either Party in accordance with this Section.
14. Force Majeure: Neither Party shall be deemed in default of any provision of the Agreement or be liable for any delay, failure in performance, or interruption of the Services resulting directly or indirectly from acts of God, acts or omissions of any government, electronic virus attack or infiltration, civil or military action, civil disturbance, pandemic, epidemic, war, labor disputes, fires, floods, and any other cause or force beyond its reasonable control.
15. Governing Law; Exclusive Venue. Any disputes between the Parties will be governed, construed and enforced in accordance with the Laws of the State of Florida, USA, without reference to the conflict of law provisions thereof. The Parties irrevocably agree that any action will be brought exclusively in a state or federal court in Florida, USA, with jurisdiction. The Parties’ remedies herein are cumulative and are in addition to any other remedies available to them at law or equity. Notwithstanding the foregoing and except for the right of either Party to apply to a court of competent jurisdiction for a temporary restraining order, a preliminary injunction, or other equitable relief to preserve the status quo or prevent irreparable harm, all disputes, controversies or claims between the Parties arising under or in relation to the Agreement shall be settled, to the extent possible, by good faith negotiations within thirty (30) calendar days following a request by either Party for resolution.
16. Miscellaneous. The Agreement, including any documents referred to herein and any exhibits attached hereto, constitute the sole and entire agreement between the Parties, and there are no other representations, warranties, covenants or obligations. The Agreement supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, written or oral, of the Parties, relating to any transaction contemplated by the Agreement, including, without limitation, any terms and conditions contained in any purchase order, quote, order acknowledgement or other, and the Agreement expressly excludes any of Client’s general terms and conditions of purchase or any other document issued by Client in connection with the Services. No course of dealing or usage of trade shall be used to modify the terms hereof. No modification of any of the terms of the Agreement shall be valid unless in writing and signed by authorized representatives of both Parties. The Agreement is the product of negotiations between the Parties and shall be construed as if jointly prepared and drafted by them, and no provision hereof shall be construed for or against any Party due to its role in the preparation or drafting hereof by reason of ambiguity in language and/or rules of construction against the drafting Party or similar doctrine. The documents referred to herein and attached hereto shall be read together with these Terms of Service to determine the Parties’ intent. The failure of either Party at any time to exercise any of its rights under the Agreement will not be deemed to be a waiver of those rights or any other rights hereunder. If any portion of the Agreement are or become invalid under any applicable Law, such portion will be deemed stricken and the rest of the Agreement will remain in full force and effect as long as there is no material adverse economic impact on either Party. The Agreement will be binding on Client and Arete and their respective successors and any duly authorized assigns.
17. Services and Event Data. Arete compiles statistics, analytics, and other information related to the Services, Deliverables, and events encountered by Arete while performing the Services, including with respect to events affecting clients (collectively, the “Services and Event Data”). Arete exclusively owns all right, title and interest in and to the Services and Event Data, including all intellectual property rights therein and thereto, and has the right to use, disclose, and license the Services and Event Data for any purpose as determined by Arete in its sole discretion, including for security and operations management, research, and development. Arete agrees that the Services and Event Data will not incorporate information that specifically identifies Client or Client’s unique legal or operational circumstances.
18. Electronic Signatures. The Parties agree that these Terms of Service and any other documents to be delivered in connection herewith may be electronically signed, and that any electronic signatures appearing on these Terms of Service or such other documents are the same as handwritten signatures for the purposes of validity, enforceability, and admissibility.