YOUR CURRENT DOCK + DOOR SYSTEM IS UNMANNED / UNMONITORED / UNMANAGED

FORTIFY MASTER TERMS OF SERVICE

These Master Terms of Service (these "Terms of Service") set forth the terms and conditions upon which Fortifyit Technology Solutions, LLC or any of its applicable affiliated companies (“FORTIFY”, “we” or “us”), offers you, our customers ("Customer", “you” or “your”), access to the FORTIFY Property and Services (each as defined below), including without limitation FORTIFY’s proprietary technology and service solution that offers a suite of comprehensive loading dock, door and equipment applications, software, hardware and related activation, installation, implementation, survey and other professional and support services to its customers based on the applicable subscription package selected by the customer. Access to the FORTIFY Property and Services is provided solely in accordance with, and subject to, these Terms of Service, the Order (as defined below), any additional services agreement, other terms and conditions or terms of service applicable to specific FORTIFY Property or Services and any other applicable terms and conditions entered into by you and FORTIFY in writing or otherwise as made available by FORTIFY through the FORTIFY website located at www.FortifyIt.com (the “Site”) from time to time (collectively, the “Additional Terms”).

This is a legally enforceable contract between you and FORTIFY. By submitting or otherwise agreeing to an Order, clicking "I Agree" or by accessing or otherwise using any FORTIFY Property or Services, you agree to be bound by these Terms of Service, the Order, and any applicable Additional Terms, all of which are hereby incorporated into these Terms of Service by reference. If you do not agree to these Terms of Service and such Order and Additional Terms, do not access or use the FORTIFY Property or Services.

From time to time, FORTIFY may modify these Terms of Service, effective immediately upon posting such modified Terms of Service on the Site. While we may note the date of the last update to these Terms of Service on the Site or the FORTIFY Platform (as defined below) and/or provide additional notice of such modifications, you acknowledge and agree that you must periodically check the Site for any updates. Except to the extent expressly contemplated by these Terms of Service, no other amendment, modification or supplement of any provision of these Terms of Service will be valid or effective unless made in writing and signed by duly authorized representatives of both parties.

  1. 1.DEFINITIONS.
    1. 1.1.“Affiliate” means, with respect to any entity, any other present or future entity Controlling, Controlled by, or under common Control with such entity, where the term “Control,” and its derivatives, of an entity means the legal, beneficial, or equitable ownership, directly or indirectly, of at least fifty percent (50%) of the capital stock or other ownership interest of such entity ordinarily having voting rights, or the power in fact to direct or cause the direction of the management of such entity or to elect the majority of such entity’s board members or other directors or managers.
    2. 1.2.“Agreement” means these Terms of Service along with all SOWs, Orders, and Additional Terms, and all exhibits or attachments hereto or thereto, all of which are hereby incorporated herein by reference,
    3. 1.3.“Applicable Law(s)” means with respect to any party, any state, provincial, regional or local law, statute, ordinance, treaty, rule, regulation, order, decree, judgment, writ, injunction, settlement agreement, requirement or determination of a court or other governmental authority, in each case applicable to or binding upon such party or any of its property or assets or to which such party or any of its property or assets is subject.
    4. 1.4.“Authorized Users” means those individuals for which Customer is authorized to grant access to and permit use of the FORTIFY Platform and other FORTIFY Property in accordance with the terms of the applicable Order and the Documentation applicable thereto.
    5. 1.5.“Customer Data” means all data and information that is collected on behalf of Customer through the FORTIFY Platform or Hardware or as part of the Services, or is otherwise submitted by Customer, its Affiliates or their Authorized Users to FORTIFY through the FORTIFY Platform or Hardware or in connection with the Services.
    6. 1.6.“Deliverable(s)” means deliverables specifically identified in any SOW under this Agreement, as applicable.
    7. 1.7.“Documentation” means the any product or service descriptions, user guides, technical manuals, installation, maintenance or support guidelines (including the Software Support Policy), and other materials provided or made available by FORTIFY for use by Customer.
    8. 1.8.“FORTIFY Background IP” means any Intellectual Property Rights in any form that were developed by or on behalf of FORTIFY prior to, during, or after the Term (expressly excluding any Customer Data incorporated therein or custom Deliverables to be owned by Customer as explicitly defined in the applicable SOW), including, any code, documentation, intellectual property or other materials or information relating to the FORTIFY Property or any software, methodology, hardware, architecture or methodology relating thereto, in each case along with all Updates thereto. Without limitation of the foregoing, all Intellectual Property Rights in and to the compilation, content, style, formatting or other elements of the Output, and the algorithms, formulae, calculations or other mechanisms by or through which the Output is compiled or generated, but excluding all Customer Data input into or included in such Output, shall be deemed FORTIFY Background IP.
    9. 1.9.“FORTIFY Platform” means the software-as-a-service (SaaS) offering, and associated software, code, application programming interfaces, user interfaces, and other applications that are made available by FORTIFY at https://hud.fortifyit.com (or such successor URL as selected by FORTIFY of which Customer is notified) as may be further described in the applicable Order and Documentation, along with any Updates thereto made available to Customer by FORTIFY.
    10. 1.10.“FORTIFY Property” means the FORTIFY Platform, Hardware, Documentation, and Deliverables (expressly excluding any Customer Data incorporated therein or custom Deliverables to be owned by Customer as explicitly identified in the applicable SOW).
    11. 1.11.“Hardware” means the FORTIFY sensors or other computer or telecommunications equipment or hardware, along with all firmware installed thereon, provided by FORTIFY to Customer in accordance with the terms of this Agreement and an applicable Order.
    12. 1.12.“Intellectual Property Rights” means any and all tangible and intangible: (a) rights associated with works of authorship throughout the world, including but not limited to copyrights, neighboring rights, moral rights, and mask works, and all derivative works thereof; (b) trademark and trade name rights and similar rights; (c) trade secret rights, (d) patents, patent applications, designs, algorithms and other industrial property rights; and (e) other intellectual and industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license, or otherwise.
    13. 1.12.“Intellectual Property Rights” means any and all tangible and intangible: (a) rights associated with works of authorship throughout the world, including but not limited to copyrights, neighboring rights, moral rights, and mask works, and all derivative works thereof; (b) trademark and trade name rights and similar rights; (c) trade secret rights, (d) patents, patent applications, designs, algorithms and other industrial property rights; and (e) other intellectual and industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license, or otherwise.
    14. 1.13.“Order” means the license, subscription, service and/or hardware purchase order form or other similar ordering document entered into by the parties from time to time in writing or electronically that references or otherwise incorporates these Master Terms of Service and which will, as applicable, set forth the applicable FORTIFY Property and/or Services to be provided to Customer and corresponding fees, term of access, authorized users and any other applicable commercial terms for the provision of such offerings hereunder, including any product or service schedules or specifications attached thereto or incorporated therein by reference, all of which are hereby deemed incorporated into this Agreement by reference.
    15. 1.14.“Order Term” means the term of each applicable Order as specified therein.
    16. 1.15.“Output” means the reports and any other information and data concerning the Customer’s facility or operations generated by Customer through its use of the FORTIFY Platform during the Term as authorized under this Agreement, expressly excluding any FORTIFY Background IP utilized to develop or deliver such reports, information or data or incorporated therein.
    17. 1.16.“Services” means, collectively, the Installation Services, Support Services and, to the extent mutually agreed and set forth in a SOW hereunder, any applicable additional Professional Services, in each case including any Deliverables provided in connection therewith.
    18. 1.17.“Statement of Work” or “SOW” means a written statement of work signed by both parties at the time of or subsequent to the execution of this Agreement that references this Agreement and sets forth the commercial terms, service descriptions and any other additional terms and conditions of any additional Services to be provided by FORTIFY to Customer under this Agreement. Upon execution by both parties, each Statement of Work is hereby deemed incorporated into this Agreement by reference.
    19. 1.18.“Updates” means any updates, upgrades, modifications, improvements, extensions, and derivatives of any nature to or of any data, materials, product or service.
  2. 2.LIMITED LICENSE rights and RESTRICTIONS.
    1. 2.1. Limited License Subject to the terms and conditions of this Agreement and the payment of all applicable Fees, FORTIFY grants to the Customer a limited, non-exclusive, revocable, non-sublicensable and non-transferable license, during the applicable Order Term, to (a) access and use, for internal purposes only, the FORTIFY Platform; and (b) use the Documentation to facilitate the use of the FORTIFY Platform, in each case in accordance with the applicable Documentation, any applicable Additional Terms, and the terms and conditions of this Agreement (the “License”).
    2. 2.2.License Restrictions. Customer will not (and will not permit any third party to): (a) make the FORTIFY Property or Services available to, or use any FORTIFY Property or Service for the benefit of, anyone other than Customer or its Authorized Users (as defined below), unless expressly stated otherwise in an Order, SOW or the Documentation or Additional Terms for the applicable FORTIFY Property or Services, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any FORTIFY Property or Service, or include any FORTIFY Property or Services in a service bureau or outsourcing offering, (c) use any FORTIFY Property to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third party privacy rights, (d) use any FORTIFY Property or Service to store or transmit any virus, Trojan horse, worm, time bomb, or other routine, mechanism or code designed to disable, erase, alter, or otherwise harm any computer system, program, database, data, hardware or communications system, (e) interfere with or disrupt the integrity or performance of any FORTIFY Property or Service (or third party data contained therein), (f) attempt to gain unauthorized access to any FORTIFY Property or Service or its related systems, networks or data, (g) permit direct or indirect access to or use of any FORTIFY Property or Service in a way that circumvents a contractual usage limit or security mechanism, procedure, or protocol, or to any of FORTIFY’s (or FORTIFY's licensors’) Intellectual Property Rights, (h) copy any FORTIFY Property or Service or any part, feature, function or user interface thereof, (i) use the FORTIFY Property or any Service other than (1) for its intended purpose, (2) in strict accordance with the Documentation, any Additional Terms for the applicable FORTIFY Property or Services, and all Applicable Laws, and (3) as authorized pursuant to this Agreement, (j) frame or mirror any part of any FORTIFY Property, other than as expressly permitted in the Documentation, or (k) reverse engineer any FORTIFY Property or Service (except to the extent such restriction is permitted by Applicable Law). Further, Customer hereby agrees to abide by any posted limitations relating to use, reproduction, or dissemination of the FORTIFY Property and with all Authorized User or other access or usage limitations applicable to Customer’s Order and the applicable FORTIFY Property as specified in this Agreement. Any use of the FORTIFY Property in any way not expressly permitted by this Agreement or otherwise in a writing signed by FORTIFY is expressly prohibited.
    3. 2.3.Updates. FORTIFY reserves the right to make Updates to the FORTIFY Platform and Documentation in its discretion during the Term provided that the terms and conditions of this Agreement shall continue to apply to any such Updates made available to Customer by FORTIFY. For the avoidance of doubt, this may include adding or removing available content, adding or removing features or functionality of the FORTIFY Platform, modifying or deleting available reporting formats or templates, or replacing or modifying the FORTIFY Platform in its entirety. Further, without limitation of the express terms of this Agreement, Customer agrees that Customer’s purchases hereunder are neither contingent on the delivery of any future functionality or features of the FORTIFY Property nor dependent on any oral or written public comments made by FORTIFY regarding future functionality or features of the FORTIFY Property (for example, those delivered in any product roadmap or similar presentation).
    4. 2.4.Copyright. The compilation of all content on the FORTIFY Platform is the exclusive property of FORTIFY and protected by United States and international copyright laws. All FORTIFY Property and other software used to provide the FORTIFY Platform is the property of FORTIFY or its software suppliers and protected by United States and international copyright laws. Permission is granted to electronically copy and to print in hard copy portions of the FORTIFY Property for the sole purpose as expressly authorized in this Agreement. Any other use of FORTIFY Property, including reproduction, modification, distribution, republishing, republishing on third party sites, transmission, display or performance, in each case other than those as expressly authorized in this Agreement without the prior written permission of FORTIFY is strictly prohibited. You agree not to change or delete any proprietary notices from any FORTIFY Property.
  3. 3.SERVICES.
    1. 3.1.Software Support Services. Subject to the terms and conditions of this Agreement and the payment of all applicable Fees, FORTIFY will provide the technical support and maintenance services for the FORTIFY Platform during the applicable Order Term in accordance with the terms of FORTIFY’s maintenance and support documentation (the “Software Support Policy”) made available through the FORTIFY Platform or otherwise provided to Customer in connection with Customer’s Order, as such Software Support Policy may be updated from time to time by FORTIFY (the “Software Support Services”).
    2. 3.2.Hardware Support and Maintenance. Subject to the terms and conditions of this Agreement and the payment of all applicable Fees, FORTIFY will provide the technical support and maintenance services for the Hardware during the applicable Hardware Support Term as identified in the applicable Order in accordance with the terms of the applicable Order (the “Hardware Support Services” and, together with the Software Support Services, collectively the “Support Services”).
    3. 3.3.Professional Services. From time to time, FORTIFY and Customer may enter into Statements of Work that relate to consulting, implementation or other professional services in addition to any Installation Services and Support Services to be provided by FORTIFY (“Professional Services”). Each Statement of Work will set forth the Professional Services to be provided together with the applicable Fees, Deliverables, milestones and other pertinent information related to the scope of such Professional Services. Except to the extent expressly set forth otherwise in the applicable Statement of Work, FORTIFY retains ownership of all Intellectual Property Rights in, to or associated with the Professional Services and all corresponding Deliverables.
  4. 4.ACCESS AND USE OF THE FORTIFY PLATFORM.
    1. 4.1.Access.
      1. 4.1.1.Authorized User Accounts. Customer must provide FORTIFY with current, complete and accurate information (including email address) as requested in the Order or otherwise prompted by the applicable registration form in order to register for use of the FORTIFY Property. Customer must identify an employee of Customer who will be authorized by Customer to be an administrator of Customer’s account for identifying and provisioning user accounts to Authorized Users to access and use the FORTIFY Platform on behalf of Customer, subject to any limitations set forth in the Documentation and the applicable Order. Additionally, all subsequent user accounts for the FORTIFY Platform created by the Customer and/or created by a FORTIFY employee at the instruction of the Customer shall be deemed an “Authorized User” for purposes of this Agreement. Unless otherwise expressly approved by FORTIFY in writing in advance, Authorized Users shall be employees or independent contractors of Customer accessing and using the FORTIFY Property and Services solely for and behalf of FORTIFY. Customer and its Authorized Users shall use, safeguard and periodically change passwords in a commercially reasonable manner and time, to prevent unauthorized access to the FORTIFY Property. Customer is responsible to maintain the privacy and security of its Authorized Users’ login information, including user names and passwords, and not allow others to use the login information. Customer will notify FORTIFY immediately of any breach in secrecy, security, or unauthorized use or theft of any Authorized User’s login information (and provide properly documented evidence as reasonably requested by FORTIFY). Customer is responsible for any and all actions taken by any person that has access to Customer’s or any Authorized User’s account. Customer agrees to immediately notify FORTIFY of any potential breaches of the login information and of the departure of any employee with access to the login information.
      2. 4.1.2.Authorized User Compliance. Customer will not permit Authorized Users to access and use the FORTIFY Property except solely during the Order Term specified in the applicable Order. FORTIFY has no obligation to verify the identity of Authorized Users or any person who gains access to the FORTIFY Property through Customer’s account. Customer is solely responsible for monitoring its Authorized Users' access to and use of the FORTIFY Property, and for any failure by any Authorized User to comply with this Agreement; a failure to comply with this Agreement by an Authorized User is a failure by Customer. Further, Customer will (a) be responsible for the accuracy, completeness, timeliness, reliability, quality and legality of Customer Data, the means by which Customer acquired Customer Data, and Customer’s use of Customer Data with the FORTIFY Property; (b) be responsible for any and all activities that occur under the Customer’s Authorized User accounts, including without limitation the transmission or display of any Output or Customer Data, regardless of whether or not Customer has authorized any such uses; (c) use commercially reasonable efforts to prevent unauthorized access to or use of FORTIFY Property, and notify FORTIFY promptly of any such unauthorized access or use; and (d) use FORTIFY Property only in accordance with this Agreement and Applicable Laws.
    2. 4.2.Information Security. Each party will implement and maintain information security controls, policies and procedures that include administrative, technical and physical safeguards designed to: (a) maintain the security and integrity of Customer Data and Confidential Information in its possession or control; (b) protect against anticipated threats or hazards to the security or integrity of Customer Data and Confidential Information; and (c) protect against unauthorized access to or use of Customer Data or Confidential Information. Except to the extent prohibited by Applicable Law or such party’s contractual obligations to third parties, (y) FORTIFY shall promptly notify Customer upon becoming aware of any unauthorized access to or disclosure of Customer Data (i) residing on any FORTIFY system, (ii) under the control of FORTIFY, or (iii) for which FORTIFY is responsible for managing in connection with the Services and shall take commercially reasonable action as reasonably determined by FORTIFY designed to remediate, mitigate and respond to any such security event; and (z) Customer shall promptly notify FORTIFY upon becoming aware of any unauthorized access to or disclosure of the FORTIFY Platform or other FORTIFY Confidential Information (i) residing on any Customer system, (ii) under the control of Customer, or (iii) for which Customer is responsible for managing in connection with the FORTIFY Platform or Services and shall take commercially reasonable action as reasonably determined by Customer designed to remediate, mitigate and respond to any such security event.
    3. 4.3.Suspension of Access. FORTIFY may in its discretion suspend Customer's access to, or reasonably restrict any use of, the FORTIFY Platform temporarily, in whole or in part, if, and so long as, in FORTIFY’s sole judgment, there is a security risk that may interfere with the proper continued provision of the FORTIFY Platform or Customer is misusing the FORTIFY Platform, has breached this Agreement, or is or may be engaged in illegal activity. FORTIFY will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat at Customer's cost.
    4. 4.4.Technical Requirements. Customer is responsible at its own cost and expense for procuring any necessary third party components or services required to use the FORTIFY Property and Services as specified in the applicable Order, Statement of Work and/or Documentation. FORTIFY disclaims all liability arising from any FORTIFY Property or Service performance-related issues or other negative effects, losses or damages to the extent caused by: (a) any failure by Customer to operate the FORTIFY Property or Service in accordance with the technical requirements; or (b) any other products, services, or technology used by Customer in connection with the FORTIFY Property or Services that are not provided by FORTIFY.
    5. 4.5.Customer Materials. Except as otherwise expressly set forth in this Agreement, Customer shall be responsible for the provision of all Customer Data that is required or reasonably requested by FORTIFY in connection with FORTIFY’s provision of the FORTIFY Property and Services. Customer understands and agrees that FORTIFY’s ability to provide the FORTIFY Property and Services required under this Agreement is directly related to and dependent upon Customer’s ability to provide certain Customer Data that is accurate and complete to FORTIFY on a timely basis. FORTIFY shall not be in breach of this Agreement for any failure to perform under this Agreement if Customer does not deliver the requisite accurate and complete Customer Data to FORTIFY on a timely basis as required hereunder.
    6. 4.6.Third Party Offerings.
      1. 4.6.1 FORTIFY may directly or indirectly use certain third party providers (“Third Party Providers”) and/or provide or make available certain third-party data, content, media, photographs, images, text, audio, or information from third parties (“Third Party Content”) or third-party web-based, mobile, offline, or other software application functionality that is incorporated into or interoperates with certain FORTIFY Property or Services, or other products, hardware, software, or services from third parties (“Third Party Products” and, together with the Third Party Content, collectively the “Third Party Offerings”), including without limitation through links to or integrations with third-party websites or applications. The Third Party Offerings will not be deemed part of the FORTIFY Property or Services and, Customer acknowledges and agrees that (a) without limitation of Section 4.6.3 below, access and use of Third Party Offerings, and any exchange of data between Customer and any Third Party Provider, is solely between Customer and the applicable Third Party Provider and is subject to any terms of use or service, end-user license agreement or other additional terms and conditions as made available by such Third Party Providers (the “Customer Third Party Agreement”); (b) access to and use of Third Party Offerings may be subject to additional terms and conditions as made available by such Third Party Providers and Customer shall comply with all of its obligations relating to Third Party Providers and Third Party Offerings under the terms of any Customer Third Party Agreement; (c) FORTIFY does not warrant or support Third Party Offerings, whether or not they are provided by FORTIFY or designated by FORTIFY as “certified” or otherwise and, as between FORTIFY and Customer, these Third Party Offerings are provided “as is” without warranty or guarantee; (d) FORTIFY is not responsible for the availability or content of any such Third Party Offerings, including any related opinions, advice, statements or advertisements; and (e) subject to any limited license or other rights granted pursuant to an applicable Customer Third Party Agreement or Third Party Terms (as defined below), the applicable Third Party Providers or licensors own and shall retain all ownership right, title, and interest in and to the Third Party Offerings and all Intellectual Property Rights embodied therein or associated therewith. Without limitation of the foregoing, to the extent that any Third Party Products are made available directly to Customer by FORTIFY or as part of the FORTIFY Property or Services, subject to the terms and conditions of this Agreement, Customer is granted only a limited, non-exclusive, revocable, non-sublicensable and non-transferable sub-license, during the applicable Order Term, to access and use, such Third Party Products solely in connection with the proper exercise of the License to the applicable FORTIFY Property, subject to and in accordance with any terms and conditions of the terms of service or use, license agreement or other applicable agreements for the Third Party Products between FORTIFY and the third party (“Third Party Terms”), provided that FORTIFY reserves the right to modify the Third Party Terms in the event FORTIFY adds or replaces Third Party Products or as modified by the third party pursuant to the Third Party Terms. FORTIFY will use commercially reasonable efforts to post the current Third Party Terms on the FORTIFY Platform and/or otherwise notify Customer through email or an alert on the FORTIFY Platform when FORTIFY has posted revised Third Party Terms. All sublicenses granted hereunder are solely for Customer’s use in connection with the FORTIFY Property and will terminate on the earlier of expiration or termination of (i) this Agreement or (ii) the applicable Third Party Terms.
      2. 4.6.2 FORTIFY may, at any time in its discretion, modify, cancel or discontinue any available interoperability or integrations for the FORTIFY Property or Services with any Third Party Offerings, or any other support or assistance provided by FORTIFY in connection with any Third Party Providers or Third Party Offerings.
      3. 4.6.3 If Customer installs or enables Third Party Offerings for use with the FORTIFY Property or Services, Customer acknowledges that FORTIFY may allow providers of those Third-Party Offerings to access Customer Data as required for the interoperation of such Third-Party Offerings with the FORTIFY Property or Services. FORTIFY shall not be responsible for any disclosure, modification or deletion of Customer Data resulting from any such access by providers of Third Party Offerings as installed or enabled by Customer.
    7. 4.7.Customer Solely Responsible for Customer’s Business Activities. Customer hereby acknowledges that, except with respect to any Professional Services FORTIFY agrees to provide pursuant to the express terms of an SOW, FORTIFY is not being engaged to, nor will it, provide direct or indirect counsel or management of Customer’s business and operational activities; and that any such counsel or management of any such activities will be done by Customer or by other parties engaged by Customer for that purpose. Without limitation of the generality of the foregoing, FORTIFY does not guarantee any level of cost savings, efficiency gains or any other aspect of Customer’s business or operations.
  5. 5.HARDWARE.
    1. 5.1.Provision of Hardware. Subject to the terms of this Agreement, FORTIFY will supply to Customer, and Customer will purchase from FORTIFY, the Hardware as expressly indicated in any applicable Order at the prices for such Hardware as set forth in such Order. Customer’s use of any such Hardware shall be subject to the terms, conditions and restrictions set forth in this Agreement, including the applicable Order and any Documentation provided in connection therewith. Customer acknowledges and agrees that (a) access to and use of certain features and functionality of the FORTIFY Platform and Services is expressly dependent upon the procurement and proper installation and maintenance of certain Hardware as further described in the applicable Order and/or Documentation; and (b) the provision of Hardware to Customer is expressly conditioned upon, and subject to, Customer’s agreement to pay all applicable Fees relating thereto, including any applicable cancellation charges as described in Section 11.5 (Effects of Termination).
    2. 5.2.Title; Risk of Loss. Subject to the terms of this Agreement, including Section 11.5 (Effects of Termination) and the applicable Order, title to the Hardware that is purchased by Customer pursuant to the applicable Order shall remain with FORTIFY until such time that Customer pays all corresponding Hardware Fees to FORTIFY in full. Notwithstanding the foregoing, Customer acknowledges and agrees that risk of loss and damage will pass from FORTIFY to Customer upon FORTIFY’s delivery of the Hardware to Customer’s facility(ies) identified in the applicable Order as approved by FORTIFY (the “Customer Facility”). Customer shall ensure that the Hardware is used only at the Customer Facility and is properly protected and used by the Customer in accordance with this Agreement and the relevant Documentation.
    3. 5.3.Hardware Installation and Set-up. FORTIFY shall be responsible for installation and set-up of the Hardware solely to the extent described in the applicable Order with respect to such installation and set-up Services (“Installation Services”). Subject to the foregoing, Customer is responsible for all other installation and set-up of the Hardware.
    4. 5.4.Removal of Hardware. FORTIFY shall not be responsible for any removal or de-commissioning of the Hardware from the Customer Facility unless the parties have entered into an SOW with respect to such removal and/or de-commissioning Services. Subject to the foregoing, Customer is solely responsible for all removal or de-commissioning of the Hardware from the Customer Facility. Further, Customer agrees not to remove or permit the removal of the Hardware from the Customer Facility during the Term, without the prior written consent of FORTIFY.
  6. 6.FEES AND PAYMENT TERMS.
    1. 6.1.Fees Access to the FORTIFY Platform is purchased as a subscription for the applicable Order Term. Customer agrees to pay the fees indicated in each applicable Order and Statement of Work (the “Fees”) in accordance with the terms and conditions set forth in the applicable Order, SOW and this Article 6 (Fees and Payment Terms). Unless otherwise expressly set forth in the applicable Order or SOW, (a) all Fees are quoted and payable in United States dollars, (b) license and subscription Fees are based on licenses and subscriptions purchased and not actual usage, (c) payment obligations are non-cancelable and amounts paid are non-refundable unless otherwise expressly set forth in this Agreement, and (d) quantities purchased cannot be decreased during the relevant Order Term or SOW Term.
    2. 6.2.Payment Terms. Unless otherwise expressly modified by the applicable Order or SOW, all Fees will be due and payable by Customer within thirty (30) days after their respective invoice date from FORTIFY.
    3. 6.3.Taxes. All Fees do not include any applicable taxes, and Customer will be responsible for paying any and all applicable sales, software license, use, value added, excise, property, withholding tax or any other taxes due in connection with the performance of this Agreement (“Taxes”) whether imposed on Customer or FORTIFY; provided, however, that Customer shall not be required to pay any Taxes applicable to FORTIFY’s net income. If FORTIFY pays any Tax that is payable by Customer in accordance with the foregoing, Customer shall reimburse FORTIFY for the amount of such Tax upon receiving an invoice therefor.
    4. 6.4.No Setoff; Non-Payment. All charges and invoices shall be deemed accurate and valid unless Customer notifies FORTIFY, in accordance with this Agreement and any further instructions on the applicable invoice, within ninety (90) days of the date of the processing of the charge or date of the invoice, as applicable, and Customer hereby waives any and all rights to later dispute any such charges or invoices. All amounts due under this Agreement to be paid by Customer to FORTIFY will be paid in full and Customer will not be entitled to assert any credit, set-off or counterclaim against FORTIFY in order to justify withholding payment of any such amount in whole or in part. If any Fees are not paid by Customer by the due date, FORTIFY may, without prejudice to any other right or remedy, charge interest on a day to day basis both before and after any judgment at a rate equal to the lesser of 1.5% per month or the maximum amount permitted by Applicable Law, from the due date for payment to the date of actual payment. For the avoidance of doubt, Fees assessed on a periodic basis (e.g., annually) shall be payable by Customer throughout the applicable Order Term, in accordance with this Agreement, regardless of whether Customer has used any FORTIFY Property or Services. Customer acknowledges and agrees that all payment obligations and fees and charges paid or payable by Customer under this Agreement are non-cancellable and non-refundable for any reason.
    5. 6.5.Suspension of Service. If any amount owing by Customer under this Agreement is ten (10) or more days overdue, FORTIFY may, without limiting FORTIFY’s other rights and remedies, suspend the FORTIFY Property and Services to Customer until such amounts are paid in full.
    6. 6.6.Other Charges; Order Changes. Notwithstanding the remainder of this Section, FORTIFY reserves the right to increase any fees or charges in its discretion (as to amount, frequency and timing) (a) for any FORTIFY products or services other than those that are subject to an outstanding Order or new features or functionality of the FORTIFY Platform for which FORTIFY, in its discretion, generally charges additional fees to its customers, (b) for any new or subsequent Orders, (c) subject to the notice requirements of Section 11.1, for any Renewal Order Term, and (d) for Fees, or components thereof, attributable to any pass-through costs or fees that are modified by the relevant third party provider. Further, the Parties acknowledge and agree that an applicable Order may set forth additional terms governing increases or other modifications to the Fees, and in the event of any conflict between the terms of this Section 6.6 and any such additional terms expressly set forth in an Order, such expressed terms of the Order shall govern and control solely with respect to such Order.
  7. 7.PROPRIETARY RIGHTS.
    1. 7.1.Ownership of FORTIFY Background IP and FORTIFY Property. FORTIFY owns and shall retain all ownership right, title, and interest in and to the FORTIFY Background IP and FORTIFY Property and all Intellectual Property Rights embodied therein or associated therewith (collectively, the “FORTIFY IP”). Customer shall have no right, title, or interest in or to the FORTIFY IP other than the limited license rights expressly set forth in this Agreement. Without limitation of the foregoing, Customer acknowledges that: (a) it is obtaining only a limited right to use the FORTIFY Property and applicable Services and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder, no ownership rights are being conveyed to Customer under this Agreement (except, as applicable, rights in any Hardware purchased by Customer as expressly contemplated by the terms of this Agreement); and (b) the FORTIFY Platform is offered as an online, hosted solution and Customer has no right to obtain a copy of any FORTIFY IP used to provide the FORTIFY Platform.
    2. 7.2.Ownership of Customer Data and Output. Customer owns and shall retain all ownership right, title, and interest in and to the Customer Data and any and all Intellectual Property Rights embodied therein. FORTIFY shall have no right, title, or interest in or to the Customer Data other than the limited license rights expressly set forth in this Agreement. Further, Customer owns all ownership right, title, and interest in and to the Output and any and all Intellectual Property Rights embodied therein, in each case excluding all FORTIFY IP therein, and FORTIFY shall have no right, title, or interest in or to the Output other than the FORTIFY IP therein and the limited license rights expressly set forth in this Agreement.
    3. 7.3.License to Customer. Subject to the terms and conditions of this Agreement and unless otherwise expressly set forth in the applicable SOW, FORTIFY hereby grants to Customer a limited, revocable, non-exclusive, non-sublicensable, and non-transferable license to use any (a) Deliverables provided or otherwise made available to Customer by FORTIFY in connection with this Agreement for Customer’s internal business purposes; and (b) any FORTIFY Background IP that is incorporated into or otherwise necessary to use any Output for its intended purpose but solely in connection with, and not independent of, the Output, in each case in accordance with the applicable Documentation, Order or SOW, if any, and subject to any limitations set forth therein.
    4. 7.4.License to FORTIFY.
      1. 7.4.1.General. Customer hereby grants to FORTIFY and its Affiliates a fully-paid up, nonexclusive, irrevocable, transferrable, sublicensable, worldwide right and license to process, reproduce, store, distribute, display, perform, modify, adapt, translate, create derivative works from, transmit, make available and otherwise use Customer Data and Output during the Term (a) in connection with FORTIFY’s provision of the FORTIFY Property and Services and performance of FORTIFY’s obligations under this Agreement and (b) for purposes of developing, maintaining and improving the FORTIFY Property and Services provided to Customer under this Agreement.
      2. 7.4.2.Aggregated Data. Customer acknowledges and agrees that FORTIFY’s technology solution uses artificial intelligence and machine learning technology to improve its output and results as additional data from a wide range of sources is collected, analyzed and integrated. As such, it is beneficial to all of FORTIFY’s customers that FORTIFY is able to develop and maintain a broad database rendered from certain data from across its user base in order to improve the performance and accuracy of the FORTIFY products and services. In furtherance of these goals, in addition to the license granted under Section 7.4.1 (General) above, Customer hereby grants to FORTIFY and its Affiliates a perpetual, irrevocable, worldwide, royalty-free, sublicensable, transferrable, sublicensable, non-exclusive right to process, reproduce, store, distribute, display, perform, modify, adapt, translate, create derivative works from, transmit, make available, and otherwise use the Customer Data and Output to develop, maintain and improve FORTIFY’s products and services and to collect, create and generate data, datasets and output that are aggregated, anonymized or de-identified in a manner that does not designate or identify Customer or its Authorized Users as the source of such data, datasets or output (“Aggregated Data”). FORTIFY owns and shall retain all ownership right, title, and interest in and to the Aggregated Data and any and all Intellectual Property Rights embodied therein. Without limitation of Customer’s ownership of the Customer Data and Output, Customer shall have no right, title, or interest in or to the Aggregated Data other than the limited license rights expressly set forth in this Agreement, as applicable. For clarity, without limitation of the foregoing rights, FORTIFY will not identify Customer or its Authorized Users as the source of any Customer Data or Output used in such Aggregated Data disclosed to third parties.
  8. 8.REPRESENTATIONS AND WARRANTIES.
    1. 8.1.Mutual Representations and Warranties. Each party represents and warrants to the other party that (a) it has the full power and authority to enter into this Agreement; (b) the individual executing this Agreement on its behalf is authorized to do so; and (c) this Agreement constitutes a valid and legally binding obligation of such party, enforceable against such party in accordance with its terms.
    2. 8.2.Additional Representations and Warranties of FORTIFY.
      1. 8.2.1.Limited Hardware and Installation Services Warranties. FORTIFY represents, warrants and covenants that, for a period of one (1) year from the completion of the Installation Services (or, to the extent explicitly identified in the applicable Order, for such other warranty period agreed by the Parties therein) (the “Hardware Warranty Period”), the Hardware and Installation Services will (a) substantially conform to the specifications set forth in the Order and applicable Documentation and (b) be free from material defects in material and workmanship, in each case when used in accordance with the terms of this Agreement and any requirements set forth in the Order and applicable Documentation ((a) and (b), collectively, the “Hardware Warranty”); provided, however, that in each case FORTIFY will not be responsible for any non-conformity or non-compliance with the Hardware Warranty that arises out of any Excluded Claims (as defined below). For any breach of the Hardware Warranty, Customer shall notify FORTIFY of such non-conformity or non-compliance with reasonable detail thereof promptly upon becoming aware of the non-conformity or non-compliance and in any event during the Hardware Warranty Period. Upon FORTIFY’s confirmation of the non-conformity or non-compliance, FORTIFY will, at FORTIFY’s option, as Customer’s sole and exclusive remedy, (i) make such alterations, modifications or adjustments to the Hardware or Installation Services to cure the breach without materially reducing the features or functionality thereof, or (ii) replace the Hardware with a substantially similar substitute that conforms to such warranty and/or reperform the Installation Services in a manner that conforms to such warranty.
      2. 8.2.2.Other Limited FORTIFY Property and Services Warranties. FORTIFY represents, warrants and covenants that: (a) the FORTIFY Platform will perform substantially in accordance with the applicable Documentation during the applicable Order Term when used in accordance with the terms and conditions of this Agreement, (b) the Deliverables will substantially conform to any applicable requirements set forth in the applicable Documentation or SOW at the time of delivery to Customer, and (c) the Services will be provided in a professional, workmanlike manner with reasonable care and skill, using reasonably qualified personnel; provided, however, in each case FORTIFY will not be responsible for any non-conformity or non-compliance with any warranty under this Section that arises out of or results from any Excluded Claims (as defined below). For any breach of the foregoing warranties, Customer shall notify FORTIFY of such non-conformity or non-compliance with reasonable detail thereof promptly upon becoming aware of the non-conformity or non-compliance. Upon FORTIFY’s confirmation of the non-conformity or non-compliance, FORTIFY will, at FORTIFY’s option, as Customer’s sole and exclusive remedy, (i) make such alterations, modifications or adjustments to the non-conforming FORTIFY Platform, Deliverables or Services (or components thereof) to cure the breach without materially reducing the features or functionality thereof, (ii) replace the non-conforming FORTIFY Platform, Deliverables or Services (or components thereof) with a substantially similar substitute that conforms to such warranty; or (iii) if none of the foregoing remedies can be achieved after the exercise of commercially reasonable efforts, terminate the affected Order(s) or this Agreement and refund to Customer a pro rata portion of any prepaid Fees for the affected FORTIFY Platform, Deliverables or Services for the remainder of the then-current Order Term.
      3. 8.2.3. For purposes of this Agreement, “Excluded Claims” means the following: (a) Customer’s use of the FORTIFY Property or Services other than as expressly permitted under this Agreement and the Documentation or any other unauthorized use, reproduction, or distribution of the FORTIFY Property or Services; (ii) any alteration, modification or repair of the FORTIFY Property or Services by anyone other than FORTIFY; (iii) the use of FORTIFY Property in combination with any other software or equipment not approved in writing by FORTIFY; (iv) non-conformities or non-compliance resulting from any Third Party Offerings; (v) Customer’s failure to procure or maintain the requisite Hardware or use of any Hardware that is “end-of-life” or otherwise no longer supported pursuant to the terms of this Agreement and/or any separate agreement with respect to such Hardware; (vi) Hardware that has been subject to improper storage or handling or abnormal physical stress or environmental conditions, misuse, neglect, negligence, or accident, or where Hardware support requirements described in the Order have not been followed by Customer; or (vii) failure to use the then-current release of any software or to follow FORTIFY’s reasonable written instructions.
    3. 8.3.Additional Representations and Warranties of Customer. Customer hereby represents, warrants and covenants to FORTIFY that: (a) Customer has collected, compiled and generated all the Customer Data provided or otherwise made available to FORTIFY by Customer in compliance with all Applicable Laws and any applicable third party terms or agreements; (b) the provision of all Customer Data to FORTIFY by Customer is in compliance with all Applicable Laws and any applicable third party terms or agreements; (c) Customer has all rights necessary to (i) grant FORTIFY the right to process, use and disclose all Customer Data in connection with the provision of the FORTIFY Property and Services, and (ii) authorize the installation of the Hardware and performance of the Services, as applicable, in each case in accordance with the terms of this Agreement; (d) all Customer Data provided or otherwise made available to FORTIFY by Customer is accurate and complete and (e) unless otherwise expressly agreed by the parties in writing, Customer Data shall not contain a person’s individually identifiable information, any information that can, together with the other Customer Data, identify a specific individual or any other data that qualifies as “personal data” regulated by Applicable Laws relating to data privacy.
    4. 8.4.Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED UNDER THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. FORTIFY WILL NOT BE RESPONSIBLE FOR ANY THIRD PARTY OFFERINGS OR OTHER THIRD PARTY SOFTWARE, SERVICE OR HARDWARE FORTIFY PROVIDES OR USES IN THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT. EXCEPT AS EXPRESSLY PROVIDED UNDER THIS AGREEMENT, FORTIFY DOES NOT WARRANT (A) THAT THE OPERATION OF THE FORTIFY PROPERTY, OUTPUT OR SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR BE UNINTERRUPTED OR ERROR FREE; (B) THAT ANY DEFECT OR MALFUNCTION IN THE FORTIFY PROPERTY, OUTPUT OR SERVICES IS CORRECTABLE OR WILL BE CORRECTED; OR (C) REGARDING THE USE, OR THE RESULTS OF, USE OF THE FORTIFY PROPERTY, OUTPUT OR SERVICES IN TERMS OF THEIR ACCURACY, QUALITY, RELIABILITY, CORRECTNESS, TIMELINESS, COMPLETENESS, AVAILABILITY OR OTHERWISE.
    5. 8.5.Customer Solely Responsible for Compliance, Performance, Safety and Other Inspections and Assessments. Subject to any obligations of FORTIFY under this Agreement with respect to Hardware and Installation Services, Customer acknowledges and agrees that Customer retains sole and exclusive authority and responsibility for inspections, assessments, submissions and other determinations regarding compliance, performance and safety of any facilities, doors, docks, levelers or other equipment, hardware or other devices or technology in connection with which Customer utilizes the FORTIFY Property, Output or Services (“Underlying Customer Equipment”). FORTIFY is not responsible for and hereby disclaims all responsibility and liability for the Underlying Customer Equipment and any determinations as to compliance, performance, safety or otherwise relating to the Underlying Customer Equipment. Customer acknowledges and agrees that such determinations are solely within Customer’s control, that all Output provided in connection with this Agreement are for informational purposes only, and that, among other appropriate measures, Customer should engage subject matter experts to review any Output before making any determinations relating to the data and findings provided therein.
  9. 9.INDEMNIFICATION.
    1. 9.1.Indemnification by FORTIFY. FORTIFY will indemnify, defend, and hold harmless Customer and its Affiliates and each of their respective officers, directors, employees, and agents (collectively, the “Customer Indemnified Parties”) from and against all third-party claims, suits, demands and actions (collectively, “Claims”) brought against the Customer Indemnified Parties and for all resulting damages, fines, penalties, judgements, assessments, losses, liabilities, costs and expenses (including reasonable attorney and professional fees) (collectively “Losses”) reasonably incurred by the Customer Indemnified Parties in connection with such Claims, to the extent resulting from (a) a claim that the FORTIFY Property, Output or Services infringe, misappropriate or violate any Intellectual Property Rights of any third party, or (b) FORTIFY’s gross negligence, willful misconduct or fraud. Notwithstanding the foregoing, FORTIFY shall have no liability to the Customer for any Claim to the extent that such Claim involves an Excluded Claim.
    2. 9.2.Indemnification by Customer. Customer will indemnify, defend, and hold harmless FORTIFY and its Affiliates and each of their respective officers, directors, employees, agents, licensors and licensees (collectively the “FORTIFY Indemnified Parties”) from any and against all Claims brought against the FORTIFY Indemnified Parties and for all resulting Losses incurred by the FORTIFY Indemnified Parties in connection with such Claims, to the extent resulting from: (a) a claim that the Customer Data, Customer’s provision of the Customer Data to FORTIFY in connection with this Agreement or FORTIFY’s use of the Customer Data pursuant to the rights granted under this Agreement (including any Customer Data incorporated into or used in the generation of Output), fails to comply with Applicable Law or otherwise infringes, misappropriates or violates any rights of a third party, including any privacy rights or Intellectual Property Rights of any third parties; (b) Customer’s use of the FORTIFY Property or Services other than Claims subject to indemnification by FORTIFY under Section 9.1; (c) any claim for bodily injury or death or for damage to tangible or intangible property relating to or arising from the acts or omissions of the Customer Indemnified Parties; (d) Excluded Claims; (e) Customer’s failure to comply with Applicable Laws in connection with its performance under this Agreement, or (f) Customer’s gross negligence, willful misconduct or fraud.
    3. 9.3.Terms of Defense and Indemnification. The party seeking indemnification pursuant to this Article 9 (as applicable, the “Indemnified Party”), will promptly notify the other party from whom indemnification is sought (as applicable, the “Indemnifying Party”), in writing, of any Claim for which the Indemnified Party believes that it is entitled to indemnification (provided that the Indemnified Party’s failure to provide such notice or to provide it promptly will relieve the Indemnifying Party of its indemnification obligations only if and to the extent that such failure actually prejudices the Indemnifying Party’s ability to defend the Claims). The Indemnified Party may employ counsel at its own expense to assist it with respect to any such Claim; provided, however, that if such counsel is necessary because of a conflict of interest of the Indemnifying Party or its counsel or because the Indemnifying Party does not assume control, the Indemnifying Party will bear the expense of such counsel. Notwithstanding anything else in this Article 9, if the Claim is one of multiple Claims in a lawsuit against any of the Indemnified Parties, some of which Claims may not be subject to the indemnity obligation under this Article, the Indemnified Party may, at its sole discretion, elect to solely control the defense, settlement, adjustment or compromise of the Claim, in which event: (a) the Indemnifying Party agrees to cooperate with the Indemnified Party’s sole control and provide any assistance as may be reasonably necessary for the defense, settlement, adjustment or compromise of any such controversy or proceedings, and (b) the Indemnifying Party shall not be relieved of its indemnification and hold harmless obligations under this Article, and the Indemnifying Party shall remain responsible for its proportionate share of the Losses relating to the Claim and attributable to the Indemnifying Party’s indemnification obligations hereunder.
    4. 9.4.Options Upon Infringement Claim. In addition, if any of the FORTIFY Property or Services becomes, or in FORTIFY’s opinion is likely to become, the subject of an infringement or misappropriation Claim, FORTIFY may, at its own expense and option, elect to either:
      1. 9.4.1. procure the right for the Customer to continue using the FORTIFY Property or Services in accordance with the provisions of this Agreement;
      2. 9.4.2. make such alterations, modifications or adjustments to the FORTIFY Property or Services so that the infringing product or technology becomes non-infringing without a material reduction in features or functionality thereof;
      3. 9.4.3. replace the FORTIFY Property or Services with a non-infringing substantially similar substitute; or
      4. 9.4.4. if none of the above remedies can be achieved after the exercise of commercially reasonable efforts, terminate this Agreement and refund to the Customer: (a) all amounts paid by the Customer to FORTIFY as Fees attributable to the affected FORTIFY Property, less an amount equal to depreciation of such Fees calculated on a three-year straight-line basis from the date of the applicable Order, and (b) a pro rata portion of any prepaid Fees for Support Services for the then-current annual Support Services period.
    5. 9.5.Sole Remedy. THIS ARTICLE 9 STATES FORTIFY’S ENTIRE LIABILITY, AND THE CUSTOMER’S SOLE REMEDIES, FOR ANY INFRINGEMENT OR ALLEGED INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS IN RELATION TO THE FORTIFY PROPERTY OR SERVICES.
  10. 10.CONFIDENTIALITY.
    1. 10.1.Definition. “Confidential Information” means all confidential or proprietary information disclosed by or on behalf of a party (in this capacity, the “Disclosing Party”) to the other party (in this capacity, the “Receiving Party”) or its Representatives (as defined below), whether orally, in writing or in any other format or medium, in connection with the performance of this Agreement, that is identified as confidential or is reasonably apparent to be confidential given the nature of such information and the circumstances of disclosure. Confidential Information will not, however, include any information that (a) at the time of disclosure hereunder is generally known to the public or thereafter becomes generally known to the public without breach of this Agreement by the Receiving Party or any of its Representatives, (b) was known to the Receiving Party at the time of its disclosure by or on behalf of the Disclosing Party hereunder without breach of any obligation owed to the Disclosing Party, (c) is received by the Receiving Party or any of its Representatives from a third party without breach of any obligation of confidentiality owed to the Disclosing Party with respect to such disclosure or (d) was independently developed by the Receiving Party or any of its Representatives without reference or use of the Disclosing Party’s Confidential Information. For the avoidance of doubt, the FORTIFY Property and the terms and conditions of this Agreement and all SOWs and Orders will be deemed the Confidential Information of FORTIFY.
    2. 10.2.Permitted Use. The Receiving Party shall: (a) use the Disclosing Party’s Confidential Information solely to accomplish the purpose of this Agreement or as otherwise permitted under the express terms of this Agreement; (b) not disclose the Disclosing Party’s Confidential Information to any third party without first obtaining the written consent of the Disclosing Party, except as otherwise expressly permitted herein; and (c) protect the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care used to protect its own confidential and/or proprietary information from unauthorized use or disclosure, but in no event with less than reasonable care. The Receiving Party will be permitted to disclose the Disclosing Party’s Confidential Information to its Affiliates and those of its and its Affiliates’ respective directors, officers, employees, agents, subcontractors and consultants (with respect to a Party, together with such Party’s affiliates, collectively, such Party’s “Representatives”) who need to know such Confidential Information in order to accomplish the purpose of this Agreement; provided, that such persons or entities are bound to the Receiving Party by obligations of confidentiality and non-use with respect to such Confidential Information that are substantially similar to those contained herein. The Receiving Party shall be liable for any unauthorized use or disclosure of the Disclosing Party’s Confidential Information by any of the Receiving Party’s Representatives. The Receiving Party shall notify the Disclosing Party in writing promptly upon learning of any such unauthorized use or disclosure of the Disclosing Party’s Confidential Information and shall use all reasonable efforts to mitigate such unauthorized use or disclosure and prevent any further unauthorized use or disclosure of the Disclosing Party’s Confidential Information. Notwithstanding anything in this Agreement to the contrary, FORTIFY shall be permitted to (i) disclose Customer’s Confidential Information, on a limited basis, to FORTIFY’s lender(s) or prospective acquirer(s), provided that any such lender or prospective acquirer is bound by obligations of nondisclosure and limited use at least as stringent as those contained herein and (ii) use the Customer Data and Output in accordance with Section 7.4.
    3. 10.3.Compelled Disclosure. The Receiving Party may disclose the Disclosing Party’s Confidential Information to the extent that such disclosure is required pursuant to Applicable Law, or by order of a court or governmental or regulatory body of competent jurisdiction; provided, that the Receiving Party promptly notifies the Disclosing Party of such disclosure in writing and provides reasonable assistance to the Disclosing Party in seeking such protective action as it deems appropriate. Thereupon, the Receiving Party may only disclose such Confidential Information as is legally required and only to an authorized person, entity or agency, to the extent required by Applicable Law and subject to the maximum available confidentiality restrictions.
    4. 10.4.Return of Confidential Information. At any time upon the Disclosing Party’s request, the Receiving Party shall, at the Disclosing Party’s sole discretion: (a) return to the Disclosing Party all tangible or electronic Confidential Information of the Disclosing Party then in the possession of the Receiving Party or its Representatives, or (b) destroy all such Confidential Information, including any copies thereof, in accordance with the Disclosing Party’s instructions (and confirm such destruction in writing to the Disclosing Party). Notwithstanding the foregoing, the Receiving Party may retain copies of the Disclosing Party’s Confidential Information disclosed hereunder that are contained in routine system backups or are necessary to fulfill its ongoing obligations or exercise its ongoing rights under this Agreement (including without limitation the rights to Customer Data and Output granted under Section 7.4), subject to the ongoing obligation to maintain the confidentiality of such information in accordance with the terms of this Section 10.
    5. 10.5.Publicity. Customer hereby authorizes FORTIFY, in FORTIFY’s discretion, to issue a press release announcing Customer as a customer of FORTIFY and to use Customer’s name and logo on FORTIFY’s websites, customer lists and similar marketing and promotional materials. Subject to the foregoing, neither party will be permitted to use the other party’s name, logo or other proprietary marks or indicia in any public disclosure of any kind without the express written permission of the other party.
  11. 11.TERM AND TERMINATION.
    1. 11.1.Initial Term and Renewal. Each Order and SOW shall begin on the effective date indicated in the Order or SOW and continue for the initial term of access to the FORTIFY Platform or provision of Services as specified in the applicable Order or SOW (“Initial Order Term”). The parties hereby agree that (a) if no effective date is indicated in the applicable Order or SOW, the effective date shall be the earlier of the date of entering into the Order or SOW or first accessing the FORTIFY Property, and (b) if no initial term of access to the FORTIFY Platform or provision of the Services is specified in the applicable Order or SOW, the Initial Order Term shall be twelve (12) months. At the conclusion of the Initial Order Term, unless otherwise expressly stated in the Order or SOW, each Order and SOW shall automatically renew for additional periods equivalent to the Initial Order Term (each, a “Renewal Order Term” and together with the Initial Order Term, collectively, the “Order Term”), unless notice of termination is given at least sixty (60) days prior to the expiration of the Initial Order Term or the then-current Renewal Order Term, as applicable. Without limitation of Section 6.6, FORTIFY reserves the right to increase or otherwise modify any Fees applicable to a Renewal Order Term at FORTIFY’s discretion, provided that FORTIFY will provide notice to Customer at least sixty (60) days prior to the end of the then-current Initial Order Term or Renewal Order Term of any such increase or modification to take effect upon the commencement of the applicable Renewal Order Term. The term of this Agreement shall continue for so long as any Order Term remains in effect, unless terminated as provided for herein (the “Term”).
    2. 11.2.Termination for Cause. In the event that either party is in material breach of the terms of this Agreement or an applicable Order or SOW, the non-breaching party may terminate this Agreement and/or the applicable Order or SOW on thirty (30) days prior written notice (or fifteen (15) days in the event of a breach of Customer’s payment obligations hereunder); provided however, that this Agreement and/or such Order or SOW shall not be terminated as provided for herein in the event that the breaching party cures the breach to the reasonable satisfaction of the non-breaching party within such notice period or takes material steps reasonably satisfactory to the non-breaching party to do so within such notice period.
    3. 11.3.Insolvency Event. Either party may terminate this Agreement by delivering written notice to the other party upon the occurrence of any of the following events: (a) a receiver is appointed for the other party or its property; (b) the other party makes a general assignment for the benefit of its creditors; (c) the other party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law, which proceedings are not dismissed within sixty (60) days; or (d) the other party becomes insolvent or is liquidating, dissolving or ceasing business operations.
    4. 11.4.Termination Without Cause. FORTIFY may terminate this Agreement for any reason upon ninety (90) days written notice to Customer, provided that Customer shall not be required to pay any future Fees attributable to Services not yet performed as of the effective date of such termination without cause or for the remainder of the Order Term after the effective date of such termination without cause.
    5. 11.5.Effects of Termination In the event of any expiration or termination of this Agreement and/or any applicable Order or SOW, (a) FORTIFY will cease performance of the Services, Customer and its Affiliates shall have no more access to the FORTIFY Platform, and their passwords will become invalid; (b) Customer shall promptly, and in any event within fifteen (15) days from the effective date of such termination, return to FORTIFY or, at FORTIFY’s election, destroy in accordance with FORTIFY’s instructions (and confirm such destruction in writing to FORTIFY), all Documentation and any other FORTIFY Confidential Information; and (c) except as otherwise specified in the Order or applicable Documentation, Customer shall have no further access to any Customer Data or Output from FORTIFY, and FORTIFY may delete all Customer Data and Output that has been stored by FORTIFY pursuant to this Agreement or such applicable Order. . In addition, except as otherwise expressly identified in the applicable Order and subject to any additional terms set forth in the applicable Order, in the event of any expiration or termination of this Agreement for any reason except for termination by FORTIFY without cause pursuant to Section 11.4 (Termination Without Cause), Customer shall pay to FORTIFY any cancellation or termination fees (including, without limitation, any termination fees attributable to Hardware amortization costs) identified in the applicable Order promptly, and in any event within fifteen (15) days of, the effective date of such expiration or termination.
    6. 11.6.Survival. All rights and obligations that accrued prior to termination or expiration of this Agreement or by their nature are intended to survive the termination or expiration of this Agreement, shall survive expiration or termination of this Agreement, including without limitation the provisions of Sections 1, 2.2, 4.6, 5.2, 5.4, 6, 7.1, 7.2, 7.4.2, 8.4, 8.5, 9, 10, 11.5, 11.6, 11.7, 12, and 13.
    7. 11.7.Rights in Bankruptcy. Termination of this Agreement or any of the obligations hereunder by either party shall be in addition to any other legal or equitable remedies available to such party pursuant to this Agreement. All rights and licenses to the Customer Data and Output granted under or pursuant to this Agreement are, and shall be deemed to be, for purposes of Section 365(n) of the Bankruptcy Code, 11 U.S.C. § 101 et seq., licenses of rights to “intellectual property” as defined under Section 101(35A) of the Bankruptcy Code; and the Customer Data and Output are, and shall be deemed to be, “embodiments” of “intellectual property” for purposes of same. FORTIFY shall retain and may fully exercise all of its rights and elections under the Bankruptcy Code or equivalent legislation in any other jurisdiction. Without limiting the generality of the foregoing, Customer acknowledges that the rights and licenses granted to FORTIFY pursuant to this Agreement shall not be affected by Customer’s rejection of this Agreement in bankruptcy, and shall continue subject to the terms and conditions of this Agreement.
  12. 12.LIMITATIONS OF LIABILITY.
    1. 12.1.Disclaimer of Damages. IN NO EVENT SHALL FORTIFY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES OR LOSSES OF ANY KIND ARISING UNDER ANY THEORY OF LIABILITY (INCLUDING TORT), OR FOR DAMAGES OR LOSSES FOR LOSS OF PROFITS, LOSS OF PRODUCTION OR EXPECTED SAVINGS, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, BUSINESS INTERRUPTION, LOSS OR CORRUPTION OF DATA OR INFORMATION, OR OTHER PECUNIARY LOSS, EVEN IF FORTIFY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    2. 12.2.Limitation of Liability. FORTIFY’S MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE AND UNDER ANY THEORY OF LIABILITY) SHALL BE LIMITED TO DIRECT DAMAGES NOT TO EXCEED THE AMOUNT OF FEES PAID BY THE CUSTOMER TO FORTIFY UNDER THE ORDER OR STATEMENT OF WORK APPLICABLE TO THE CLAIM GIVING RISE TO SUCH LIABILITY DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM GIVING RISE TO SUCH LIABILITY.
    3. 12.3.Applicability. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET FORTH IN THIS AGREEMENT SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
  13. 13.GENERAL TERMS.
    1. 13.1.Export Compliance. The FORTIFY Products may be subject to U.S. and other national export controls and economic sanctions. Individuals or entities owned or controlled, registered in, or related to Cuba, Iran, Sudan, Syria, or North Korea are not permitted to access the FORTIFY Products without prior written permission from FORTIFY once granted by the appropriate jurisdiction. The rights and obligations of Customer shall be subject to such United States laws and regulations as shall from time to time govern the license and delivery of technology abroad by persons subject to the jurisdiction of the United States, including the Export Administration Act of 1979, as amended, any successor legislation to the Export Administration Act of 1979, and the Export Administration regulations issued by the Department of Commerce, International Trade Administration, Office of Export Administration. Customer shall not, directly or indirectly, export, re-export or transship the FORTIFY Products in such manner as to violate such laws or regulations in effect from time to time.
    2. 13.2.Independent Contractors. The parties to this Agreement are independent contractors. Neither party shall have any right to assume, create, or incur any expense, liability, or obligation, express or implied, on behalf of the other party. This Agreement is not intended to be nor shall it be construed as a joint venture, association, partnership or other form of a business organization or agency relationship.
    3. 13.3.Force Majeure. Neither of the parties shall be considered in default of performance under this Agreement (other than performance of obligations to pay Fees) to the extent that such performance is delayed or prevented by circumstances or events beyond its reasonable control, including, without limitation, fire, flood, earthquake or similar natural disasters, riot, war, terrorism, civil strife, labor disputes or disturbances, material shortages or rationing, actions or requirements (including laws, regulations, orders, advisories, disapprovals or failure to approve) of any governmental or public health agencies or authorities (whether national, statewide, municipal, or otherwise), communication or utility failures, epidemic, public health emergency, quarantine restriction, or casualties.
    4. 13.4.Equitable Relief. Each party acknowledges and agrees that its breach of any confidentiality or proprietary rights provision of this Agreement may cause the other party irreparable damage, for which the award of damages may not be adequate compensation. Consequently, the non-breaching party may institute an action to enjoin the breaching party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and a party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching party may be entitled at law or in equity.
    5. 13.5.Notices. Except as otherwise set forth herein, any notice required or permitted to be given by either party under this Agreement shall be in writing and shall be personally delivered or sent by a reputable overnight courier service (e.g., Federal Express), or by first class mail (certified or registered), to the other party addressed to the address as set forth on the Order or otherwise prompted by the applicable registration form in order to register for use of the FORTIFY Platform (or to such other address of which a party provides notice to the other party in accordance with the requirements of this Section). In addition, FORTIFY may provide any such notices under this Agreement to you by email to the address as set forth on the Order or otherwise prompted by the applicable registration form in order to register for use of the FORTIFY Platform (or to such other address of which you provide notice to FORTIFY in accordance with the requirements of this Section). Notices will be effective upon receipt. Customer hereby acknowledges and agrees that all agreements, notices, disclosures, and other communications that we provide to you electronically as permitted under this Agreement satisfy any legal requirement that such communications be in writing.
    6. 13.6.Waiver and Modification. Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. Any waiver, amendment or other modification of any provision of this Agreement will be effective only if in writing and signed by the parties.
    7. 13.7.Assignment. Customer shall have no right to transfer or assign this Agreement or the Customer’s rights or obligations under this Agreement, whether by operation of law or otherwise, in whole or in part without FORTIFY’s express prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed), and any attempted transfer or assignment in violation of the foregoing shall be null and void. FORTIFY may transfer, assign or subcontract this Agreement or FORTIFY’s rights or obligations under this Agreement, in whole or in part, without the consent of Customer. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns.
    8. 13.8.No Third Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
    9. 13.9.Severability. If for any reason any provision of this Agreement is adjudicated to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement will continue in full force and effect.
    10. 13.10.Controlling Law and Venue. This Agreement shall be construed in accordance with the laws of the state of Texas (without giving effect to any choice or conflict of law provision or rule that would cause the application of laws of any jurisdiction other than those of the state of Texas) and the parties submit to the exclusive jurisdiction of the state and federal courts located in the Dallas, Texas. The parties hereby irrevocably waive any and all claims and defenses either might otherwise have in any action or proceeding in any of such courts based upon any alleged lack of personal jurisdiction, improper venue, forum non conveniens or any similar claim or defense. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods (1980) is specifically excluded from application to this Agreement.
    11. 13.11.Interpretation. When a reference is made in this Agreement to Sections, paragraphs or attachments, such reference shall be to a Section, paragraph, or attachment to this Agreement unless otherwise indicated. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Headings used in this Agreement are for ease of reference only and shall not be used to interpret any aspect of this Agreement. Whenever the words "include," "includes" or "including" are used in this Agreement, they shall be deemed to be followed by the words "without limitation." The words "hereof", "herein" and "hereunder" and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The terms defined in the singular have a comparable meaning when used in the plural, and vice versa. The Orders, SOWs, and Additional Terms hereto are an integral part of this Agreement and shall be deemed part of this Agreement and included in any reference to this Agreement. No party will be deemed, or construed by any court, to be the drafter of this Agreement, which Agreement will be deemed to have been jointly prepared by the parties.
    12. 13.12.Entire Agreement; Order of Precedence. This Agreement, including all SOWs, Orders, Additional Terms, and exhibits or attachments hereto or thereto, all of which are hereby incorporated herein by reference, constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous understandings or agreements, written or oral, regarding such subject matter. Notwithstanding any language to the contrary therein, no terms or conditions stated in Customer’s purchase order or other order documentation (excluding Orders and SOWs) shall be incorporated into or form any part of this Agreement, and all such terms or conditions are expressly rejected by FORTIFY and shall be null and void. Except as explicitly stated elsewhere in the Agreement, in the event of a conflict or inconsistency between the provisions of the components of the Agreement, then the following order of precedence shall apply: (a) the Order’s or SOW’s terms and conditions shall take precedence over any other component of the Agreement, (b) then the Additional Terms; and (c) then these Master Terms of Service.