This Subscription Services Agreement (“Agreement”) describes the terms under which LogicGate Inc., a Delaware corporation, on behalf of itself and its Affiliates (“LogicGate”), offers the customer agreeing to these terms by its execution (“Customer”) access to its Service.
This Agreement is incorporated by reference into each Order Form executed by Customer and LogicGate. LogicGate reserves the right to modify this Agreement at any time in its sole discretion. Any such modification will be effective upon the posting of the modified Agreement, or by otherwise communicating such modifications to the Customer.
1. SOFTWARE-AS-A-SERVICE.
a. During the Term of this Agreement, Customer may access and use LogicGate’s Internet-based software service as specified on an Order Form, (the “Service”). The Service may include, where applicable, related professional services which may be further specified on an Order Form and/or statement(s) of work (each, an “SOW”). The Service may be used by Customer in accordance with this Agreement, the Order Form(s), the SOW(s), and the policies referenced herein.
b. If any Affiliate of Customer wishes to place an order for Services pursuant to this Agreement, such Affiliate will execute an Order Form subject to the terms and conditions herein, and each reference to “Customer” herein shall include such Affiliate. For the avoidance of doubt, “Affiliate” shall mean any corporation or other entity that such party directly or indirectly controls, is controlled by, or is under common control with, including an entity owned by Customer’s common shareholders. In this context, a party “controls” a corporation or other entity if it or any combination of it and/or its Affiliates owns more than fifty percent (50%) of the voting rights for (i) the board of directors, or (ii) other mechanism of control for such corporation or other entity
c. During the Term of this Agreement, Customer and its Authorized Users (defined below) may access and use the Service via the unique account identified with a specific Uniform Resource Locator (URL), which takes the following form: [Customer name].logicgate.com (“Customer Instance”) .
2. USE OF SERVICE.
a. Customer Data. For purposes of this Agreement, the term “Authorized User” means any and all authorized Risk Cloud users (e.g., Power Users, Standard Users, External Users, any authorized end-user who accesses the Service via Public Pages, any other user type described in an applicable Order Form) (as each is defined in the LogicGate Services Description, found at http://www.logicgate.com/services-description, which may be updated from time to time, and/or as may be otherwise described on the Order Form(s)) identified in the Order Form(s) then in effect. All data, audio, video, pdf files, images, messages and other files, information, and content (including, but not limited to, regulatory and/or compliance content, templates and frameworks) uploaded by Customer or its Authorized Users to or within the Customer Instance (“Customer Data”) remains the property of Customer or its Authorized Users, as applicable. During the term of this Agreement, Customer may export its Customer Data and print reports as allowed by such functionality within the Service, so long as it has the rights and authorizations of its Authorized Users required to do so.
b. License to Use Customer Data. Customer grants LogicGate and its affiliates, employees, agents and contractors a worldwide, limited-term, royalty-free license to use, copy, transmit and host the Customer Data (of both Customer and its Authorized Users) for purposes of performing under this A LogicGate will only use Customer Data as reasonably required for providing the Service as contemplated hereunder, and in accordance with LogicGate’s Privacy Policy (https://www.logicgate.com/privacy-policy/). By using the Service, Customer expressly consents to and opts into LogicGate’s use of Customer Data for the purpose of providing, maintaining, and improving the Service.
c. Customer Warranty. Customer hereby represents, warrants and covenants that (i) Customer has obtained all rights and consents, and has provided any and all notices, required by applicable law (including data protection, data privacy, or sector-specific laws that may apply to the Customer Data), to upload, transmit, use, share and license the Customer Data in the manner that Customer or its Authorized Users upload, transmit, use, share or license the Customer Data, (ii) Customer complies with, and will continue to comply with, all applicable, domestic, foreign and local laws and regulations and will obtain all applicable permits and licenses in connection with its obligations hereunder during the Term of this Agreement, and (ii) Customer will not use the Service in such a way that use or failure of the LogicGate system could lead to death, personal injury, or environmental damage.
i. OFAC & Sanctions. Customer represents, warrants and covenants that (i) it is not an entity incorporated in, or resident of, a country subject to economic or trade sanctions by the U.S. State Department and/or OFAC, and (ii) none of its executives, board of directors, or top ten (10) shareholders are listed as a “Specially Designated National,” a “Specially Designated Global Terrorist,” a “Blocked Person,” or other similar designation under the OFAC sanctions regime or any other equivalent sanctions list. If either (i) or (ii) become true during the Term of this Agreement, Customer must immediately notify LogicGate of such change, and LogicGate reserves the right to terminate this Agreement due to such change. For the avoidance of doubt, any breach of this Section is a material breach of this Agreement and LogicGate may immediately terminate this Agreement with no further obligations to Customer.
d. Authorized User Access and Usage. Customer may allow its Authorized Users (as defined, and subject to the numerical and other limitations set forth in the Order Form(s) then in effect) to access the Service in compliance with the terms of this A Customer is responsible for use of the Service by its Authorized Users and for compliance with this Agreement by its Authorized Users and any other person or entity who accesses the Services via Customer. Authorized Users are not permitted to share access or login credentials.
e. Customer Responsibilities During Use of Service. Customer is solely responsible for (i) Customer Data and all activity of its Authorized Users and in its account in the Service or Customer Instance including, without limitation, provision of Customer Data to LogicGate, uploading Customer Data to the Service; (ii) configuration of Customer’s Instance (e.g., permissions, privileges); and (iii) Customer’s use of the Service in accordance with the terms of this Agreement, applicable law, and any terms of use, licenses, or similar written agreements relating to Third-Party IP (defined below). LogicGate reserves the right to audit Service usage to ensure compliance with the terms of the applicable Order Form(s).
f. LogicGate Support. LogicGate will provide customer support to the Customer for the Service under the terms of LogicGate’s Customer Support Policy (found at https://www.logicgate.com/customer-support-policy) which is hereby incorporated by reference into this Agreement and may be updated from time to time. For the avoidance of doubt, LogicGate disclaims responsibility for providing support for Third-Party IP, including, without limitation, third-party Integrations, applications, and other features, functionality, or content that have been developed by individuals or entities other than LogicGate or are otherwise not native to the LogicGate Service.
g. Use of Third-Party IP. This provision 2(g) only applies if, and to the extent that, Customer uses any Third-Party IP not directly provided by LogicGate as part of the Service. During the Term, subject to the restrictions herein, Customer may access and/or use the Service in combination with certain Third-Party IP. If Customer accesses, implements, or otherwise uses any Third-Party IP, not expressly provided by LogicGate, in connection with its use of the Service, Customer shall obtain and provide written documentation of all necessary licenses from the Third-Party IP owner(s). Additionally Customer shall at all times comply with any and all obligations it has in place with such Third-Party IP owner(s). The term “Third-Party IP” means third-party content, content feeds, control frameworks, Integrations, applications, features, or functionality developed by individuals or entities other than LogicGate, or any other non-native intellectual property used in combination with the Service.
h. Use of LogicGate API. This provision 2(h) only applies if, and to the extent that, Customer uses LogicGate’s API or Integrations in combination with the Service. If Customer utilizes the API, Customer must include a unique identifier to communicate with the LogicGate API so that all calls to or other communications with the API may be identified by LogicGate as originating from the Customer or its agents. The terms “LogicGate API” or “API” means LogicGate’s application programming interface including any accompanying documentation (found at logicgate.com, which may be updated from time to time in LogicGate’s sole discretion), source code, data, including LogicGate’s customer data, or other related materials provided by LogicGate. The term “Integration” means any third-party software or middleware which interoperates, can be combined, or is otherwise compatible with the Service, and/or communicates with LogicGate’s API.
i. Additional Terms. Customer’s use of LogicGate-provided Third-Party IP and/or Integrations may be further subject to additional terms and conditions applicable to such Third-Party IP and/or Integrations, which shall be set forth in the applicable Order Form.
3. LOGICGATE WARRANTIES; SERVICE LEVEL AGREEMENT; DISCLAIMERS.
a. Service and Support Changes. LogicGate warrants to Customer that: (i) the functionality or features of the Service and Services Description may change but will not materially decrease during any paid term; and (ii) the support, as set forth in the Customer Support Policy, may change but will not materially degrade the support offered to Customer during any paid term.
b. Service Availability Warranty. LogicGate warrants to Customer that it will use commercially reasonable efforts to maintain the online availability of the Service for a minimum uptime availability of 99% in any given month (excluding maintenance or scheduled outages, force majeure, and outages that result from any Customer technology issues) (“Uptime Warranty”).
c. Service Credits. Customer shall be entitled to receive three percent (3%) credit of Customer’s monthly subscription fee (i.e., annual fee divided by twelve) for each full hour of an outage beyond the Uptime Warranty; however, the maximum amount of the credit is 100% of the subscription fee for such month. For the avoidance of doubt, in determining eligibility for and the amount of credits, “outage” shall not include maintenance or scheduled outages, force majeure, disruption of Service due to any Customer technical or technology issues, such as errors or malfunctions on the end user’s computer systems, local networks, or internet connectivity, or any other technical issues beyond the control of LogicGate.
d. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND LOGICGATE’S SOLE AND EXCLUSIVE OBLIGATION FOR ITS FAILURE TO MEET THE
UPTIME WARRANTY WILL BE FOR LOGICGATE TO PROVIDE CUSTOMER A CREDIT FOR THE APPLICABLE MONTH AS PROVIDED IN 3(c) ABOVE; PROVIDED THAT CUSTOMER MUST NOTIFY LOGICGATE OF SUCH BREACH WITHIN THIRTY (30) DAYS OF THE END OF THE MONTH IN WHICH THE BREACH ALLEGEDLY OCCURRED.
e. LEGAL DISCLAIMER. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT LOGICGATE AND THE SERVICE DO NOT PROVIDE LEGAL ADVICE, AND THAT CUSTOMER IS SOLELY RESPONSIBLE FOR COMPLIANCE WITH ANY AND ALL APPLICABLE FEDERAL, STATE, LOCAL, FOREIGN AND INTERNATIONAL LAWS, RULES AND REGULATIONS.
f. WARRANTY DISCLAIMER. LOGICGATE PROVIDES THE SERVICE “AS IS” AND, EXCEPT AS EXPRESSLY SET FORTH HEREIN, DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
g. ADDITIONAL DISCLAIMERS. IN ADDITION TO THE FOREGOING WARRANTIES AND DISCLAIMERS, LOGICGATE DISCLAIMS ALL RESPONSIBILITY FOR AND LIABILITY REGARDING CUSTOMER’S CONFIGURATION OR OTHER IMPROPER USE OF CUSTOMER’S INSTANCE BY CUSTOMER, AS WELL AS FOR THE DEVELOPMENT, USE, AND SUPPORT OF ALL THIRD-PARTY INTEGRATIONS, APPLICATIONS, OR OTHER THIRD-PARTY IP USED IN COMBINATION WITH THE SERVICE OR CUSTOMER’S INSTANCE. FURTHERMORE, WHILE LOGICGATE TAKES REASONABLE PHYSICAL, TECHNICAL AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICE, LOGICGATE DOES NOT GUARANTEE THAT THE SERVICE CANNOT BE COMPROMISED OR THAT THE SERVICE WILL BE ERROR FREE OR UNINTERRUPTED.
4. PROFESSIONAL SERVICES.
a. Provision of Professional Services. LogicGate, or LogicGate’s implementation team, will provide the implementation and configuration services (the “Professional Services”) as set forth in an Order Form or SOW, as applicable, executed by LogicGate and Customer. Each Order Form or SOW, as applicable, will be deemed to incorporate this Agreement by reference.
b. Standards. LogicGate warrants that the Professional Services performed hereunder will be performed in a highly professional manner, in accordance with best practices in the industry then in effect for the Professional Services provided hereunder by an adequate number of highly qualified personnel with experience and expertise to perform the Professional Services. LogicGate, and all personnel supplied by LogicGate, will at all times act in a professional and courteous manner.
c. To the extent LogicGate provides on-site Professional Services at a location owned or controlled by Customer, LogicGate and all applicable LogicGate personnel will comply with Customer’s policies, conditions and workplace rules; provided that such policies, conditions and workplace rules have been provided to LogicGate in advance of the on-site work.
d. LogicGate agrees that all reports generated or produced pursuant to an applicable Order Form or SOW by LogicGate or LogicGate’s Implementation Team (as defined in the Order Form or SOW, as applicable) resulting from the provision of the Professional Services (but not including pre-existing intellectual property), including table reports and visual reports (“Deliverables”) will be the sole and exclusive property of Customer. Subject to the terms of this Agreement, LogicGate hereby grants to Customer a non-exclusive, world-wide, royalty-free license to any of LogicGate's pre-existing intellectual property embedded in or associated with the Deliverables.
e. Completion of Professional Services. Completion of any specific Professional Services, or termination of any specific Order Form or SOW, as applicable, will not necessarily terminate this Agreement, it being the intent of the Parties to leave this Agreement in effect for any future Order Form or SOW or otherwise effective Order Form or SOW between the Parties.
5. FEES, TAXES & PAYMENTS.
a. Fees. Customer must pay all undisputed fees as specified on the Order Form(s) then in effect in accordance with the Payment Terms listed on such Order Form(s). In the event Customer does not pay the fees or other charges when due and payable, LogicGate reserves the right to assess a finance charge of one and one-half percent (1.5%) per month or the maximum rate allowed by law and/or suspend Customer’s access to the Service until fully paid.
b. Taxes. Customer is responsible for the payment of all sales, use, withholding, VAT and other similar taxes.
c. Order Forms. This Agreement contemplates one or more orders for the Service, which orders must be mutually agreed upon by the parties in the form of the Order Form or in another writing signed by both parties hereto (each an “Order Form”) and are governed by the terms of this Agreement.
6. MUTUAL CONFIDENTIALITY.
a. Definition of Confidential Information. Confidential Information means all non-public information disclosed by or on behalf of a party hereto (“Discloser”) to the other party hereto (“Recipient”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (“Confidential Information”). Customer’s Confidential Information includes Customer Data. LogicGate’s Confidential Information shall include LogicGate’s business and marketing plans, business processes, product plans and designs and other non-public technical information proprietary to LogicGate (e.g., any aspect of the Service not disclosed to the general public, the Service user interface design and layout, out-of-the box workflows/automated processes, API, source code, object code, and pricing information).
b. Protection of Confidential Information. Except as otherwise provided in this Agreement or required by law, neither Party shall disclose the other Party’s Confidential Information to third parties without their consent. Recipient must use at least the same degree of care that it uses to protect the confidentiality of its own Confidential Information (but in no event less than reasonable care) not to disclose or use any Confidential Information of Discloser for any purpose outside the scope of or not permitted by this Agreement or to any third party without the written permission of Discloser. Recipient shall limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this A The Confidentiality obligations of this Section shall survive the termination of this Agreement.
c. Exclusions. Notwithstanding the foregoing, Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser, (ii) was known to Recipient prior to its disclosure by Discloser without breach of any obligation owed to Discloser, (iii) is received from a third party without breach of any obligation owed to Discloser, or (iv) was independently developed by Recipient without use or access to the Confidential Information. Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice and reasonable cooperation to seek a protective order.
d. Compelled Disclosures. Notwithstanding anything herein to the contrary, in the event Recipient or any employee, contractor, representative, or other agent of Recipient is required to disclose all or any part of the Confidential Information pursuant to a valid and effective subpoena or the order or requirement of a court, administrative agency, or other governmental body or pursuant to any other legal or regulatory obligations governing its conduct, then, to the extent not prohibited by law, Recipient or such employee, contractor, representative, or other agent of Recipient must (i) provide prompt notice (to the extent permitted by applicable law) of such court order or requirement to the Discloser to enable the Discloser to seek a protective order or otherwise prevent or restrict such disclosure (and if Discloser requests, Recipient and such employee, contractor, representative, or other agent of Recipient must reasonably cooperate with Discloser to obtain such protective order or otherwise prevent or restrict such disclosure) and (ii) if disclosure of such Confidential Information is required, disclose only that portion of the Confidential Information that is legally required to be disclosed upon reasonable advice of Recipient’s counsel and exercise commercially reasonable efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to such disclosed Confidential Information.
e. Non-Disclosure Agreement. For the avoidance of doubt, if LogicGate and Customer have previously executed a non-disclosure and/or confidentiality agreement to govern confidential disclosure of information (“NDA”), such NDA is hereby terminated and superseded in its entirety by this Section 6 as of the Effective Date of this Agreement.
7. INFORMATION SECURITY AND DATA PRIVACY.
a. Information Security Measures. LogicGate will employ appropriate administrative, physical and technical measures (“Information Security Measures”), as set forth in the LogicGate Information Security Measures, located at https://www.logicgate.com/information-security-overview/ (“ISA”), to protect the Service and prevent the accidental loss or unauthorized access, use, alteration or disclosure of Customer Data under its control. LogicGate shall notify Customer of a Personal Data Breach (as defined in the DPA) as set forth LogicGate Data Processing Addendum located at https://www.logicgate.com/data-processing-addendum/ (“DPA”). Further, Customer acknowledges and agrees that LogicGate may collect and use data related to Customer and Customer’s Authorized Users’ use of the Services for the purpose of detecting, preventing and responding to fraud and security risks.
b. Special Data. With the exception of the specific Personal Data required for Authorized Users' login credentials, Customer acknowledges and agrees that neither LogicGate nor the Service require the upload of any data type subject to heightened legal or regulatory requirements, or any data type that is highly-sensitive or included in special categories pursuant to applicable Data Protection Legislation (as defined in Exhibit B), including without limitation, protected health information ("PHI"), social security numbers ("SSNs"), and bank account, payment account, or credit card information (collectively, "PCI Data") (collectively referred to as "Special Data"). LogicGate does not as a matter of course review Customer Data to determine if it contains Personal Data (as defined in Exhibit B), Special Data, or any other particular type of information. Customer Acknowledges and agrees that the uploading or provision of any Special Data will be at Customer's own election and risk, and Customer shall be solely responsible for the provision of Special Data and any other auditing or security standards that may apply to Customer's use of the Service to process Customer Data, Personal Data, or Special Data. In the event that Customer uploads PHI to the Service, or intends to do so, Customer shall provide advance written notice to LogicGate of such upload, and the Parties shall execute the necessary Order Forms associated with the applicable Services and/or other necessary agreements (e.g., Business Associate Agreement) as required. For the avoidance of doubt, Customer acknowledges and agrees that the upload of SSNs or PCI Data, or the upload of PHI without the appropriate documented agreements (e.g., Business Associate Agreement), is strictly prohibited. A breach of this section shall be considered a material breach of the Agreement and LogicGate shall have the right to immediately terminate this Agreement, except where Customer has purchased the applicable Services for the purpose of uploading such Special Data.
c. Audit Report. Upon Customer’s written request, LogicGate shall provide Customer with a current copy of any applicable audit reports it may have, which may include, for example, a Letter of Attestation with respect to its system architecture and vulnerability from an independent third-party assessor and a summary of SOC-2 and/or ISO 27001 (or substantially similar) audit report, as applicable. Customer is responsible for confirming whether the Service aligns to any other auditing or security standards that may apply to Customer’s use of the Service to process Customer Data or any Personal Data or Special Data.
d. Personal Data Protection. To the extent LogicGate processes Personal Data during the provision of the Service hereunder, such processing will be subject to the DPA.
e. Customer Security Responsibilities and Obligations. Customer is solely responsible for the security of its, and its Authorized Users’ login credentials. Customer agrees to use reasonable efforts to prevent unauthorized access or use of the Service and to promptly notify LogicGate if Customer believes (a) any Customer login credentials have been lost, stolen or made available to an unauthorized third party, or (b) an unauthorized third party has accessed the Service or Customer Data in the Service. For the avoidance of doubt, LogicGate will not be responsible for and shall have no obligation with respect to the acts or omissions of Customer, its Authorized Users, or any other person or entity who accesses the Services via Customer.
f. Server Location. Customer acknowledges that LogicGate has servers located in the United States, the United Kingdom, Europe and Australia only, and that the Service is not intended to be used by Customer or third parties in any country which requires an individual’s Personal Data to remain on servers located in that country. Customer represents and warrants that it will use the Service in compliance with all such applicable data privacy localization requirements. Customer further acknowledges and agrees that any use of the Service by Customer within such countries (hereinafter, “Data Localization Countries”) may also carry certain inherent risks associated with government rules and regulations and business environment, including but not limited to access (and interruption) to telecommunication or internet service associated with such data privacy and localization requirements. Accordingly, Customer acknowledges and agrees that its use of the Service within Data Localization Countries is at its sole risk and LogicGate’s: (i) failure or inability to provide any of the Service in Data Localization Countries; or (ii) transfer of Personal Data of residents and citizens of Data Localization Countries outside of such countries, shall not constitute a breach of the Agreement (including SLAs, if any). In no event shall LogicGate be liable to Customer for any damages (whether direct, indirect, consequential, punitive special, or otherwise), fines, penalties, credits, rebates, offsets, or any other form of payment arising from Customer’s use or inability to use the Service within Data Localization Countries. Notwithstanding any limitations of liability set forth herein, Customer shall indemnify, defend and hold harmless LogicGate, its directors, officers, employees, agents and affiliates from and against any and all Claims to the extent that any such Claim is caused by or arises out of (a) Customer’s use of the Service within Data Localization Countries, (ii) Customer’s use, input or transfer of any Personal Data of residents or citizens of Data Localization Countries into the Service, or (iii) any breach by Customer of applicable data privacy localization requirements.
8. LOGICGATE PROPERTY.
a. Reservation of Rights. The software, workflow processes, user interface, designs and other technologies provided by LogicGate as part of the Service, and all logos and trademarks reproduced through the Service, are the proprietary property of LogicGate and its licensors (as applicable), and all right, title and interest in and to such items, including all associated intellectual property rights, remain only with LogicGate and its licensors (as applicable). Customer may not remove or modify any proprietary marking or restrictive legends in the Service. LogicGate reserves all rights except to the extent expressly granted in this A LogicGate reserves the right to update or improve the Service in its sole discretion, as well as the right to contact Customer and its Authorized Users for the purpose of notifying Customer of said updates, improvements, additional functionality, new LogicGate offerings, or to provide other important information.
b. Restrictions. Customer may not (i) sell, resell, rent or lease the Service; (ii) use the Service in a service provider capacity; (iii) use the Service to harass any person; promote bigotry, racism, hatred or harm; store or transmit infringing, emails, libelous, harassing, obscene, defamatory, or otherwise objectionable, unlawful or tortious material, or to store or transmit material in violation of third-party rights including rights of privacy; send unsolicited bulk e-mail, junk mail, spam, chain letters or phishing attempts; use the Service to perform denial of service attacks on another party(ies); otherwise violate applicable laws; (iv) interfere with or disrupt the integrity or performance of the Service; (v) attempt to gain unauthorized access to the Service or their related systems or networks; (vi) reverse engineer or decompile the Service, or otherwise attempt to obtain the source code from which any component of the Service is compiled; (vii) access the Service to build a competitive service or product, or copy any feature, function or graphic; (viii) use the Service to perform any benchmarking or conduct any performance or vulnerability testing without LogicGate’s prior written approval; (ix) use the Service to perform cyber currency or crypto currency mining; (x) use the Service alone, or in combination with any third party software, data, proprietary information, or other intellectual property, which in any way which infringes upon the rights of a third party, including but not limited to copyright, trademark, or patent infringement; or (xi) use the Service in any way which violates any law or regulation, or Customer’s contractual obligations with third parties, or for any unlawful or improper purpose. For the avoidance of doubt, the foregoing restrictions shall also apply to Customer’s use of Third-Party IP provided by LogicGate and Customer’s use of the LogicGate API and/or Integrations.
c. Usage Data. Customer acknowledges and agrees that LogicGate may use service utilization data, user type, and other data obtained through the provision of the Service to Customer, and/or derived from Customer Data ("Usage Data"), in compliance with applicable laws and LogicGate's Privacy Policy, for purposes of maintaining and enhancing the Service, creating aggregated statistical analysis, providing technical support, and for other internal business purposes. LogicGate shall maintain appropriate security measures for the protection of Usage Data in accordance with the terms of this Agreement. LogicGate will be the sole and exclusive owner of all right, title and interest in and to such Usage Data. For the avoidance of doubt, LogicGate will not share Usage Data with any third party without Customer's written consent, nor will LogicGate sell any Usage Data.
9. TERM AND TERMINATION.
a. Term. This Agreement shall commence upon the start of the Initial Service Term and continue until the later of (i) the expiration of the Initial Service Term, and (ii) the expiration of the Term of the last outstanding Order Form (hereafter, the “Term”). “Initial Service Term” means the duration of time between the Contract Start Date and Contract End Date specified on the Order Form executed concomitantly with this Agreement.
b. After the Initial Service Term, the Order Form shall automatically renew for additional periods (each, a “Renewal Term”), unless either Party provides notice of non-renewal by notifying the other Party hereto in writing of such non-renewal at least thirty (30) days prior to the end of the then-current Term, or if a new Term is mutually agreed to by the Parties. For the avoidance of doubt, a Renewal Term shall be for the same duration as the Initial Service Term or the duration of the contract dates of any Order Form then in effect at the time of renewal, whichever is longer.
c. Termination for Material Breach. If either party materially breaches this Agreement, (i) the breaching party shall have thirty (30) days to cure such breach, and (ii) the non-breaching party may terminate this Agreement provided that the breach has not been cured after thirty (30) days written notice of the breach. If Customer is unable to cure such breach within such thirty (30)-day cure period and/or LogicGate terminates this Agreement due to Customer’s uncured material breach, (a) LogicGate shall be entitled to retain any and all funds previously paid by Customer, and (b) Customer shall immediately pay LogicGate any undisputed fees due and payable pursuant to the Order Form(s) then in effect. If Customer terminates this Agreement due to LogicGate’s material breach, LogicGate shall refund to Customer the pro rata portion of the Total Order Value (as defined in the Order Form(s) then in effect) it received from Customer for that portion of the year in which the termination occurred that has not yet elapsed as of the effective date of termination.
d. Termination for Insolvency. Either party may terminate this Agreement immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
e. Suspension for Violations of Law or Breach of Agreement. LogicGate may, at its discretion, temporarily suspend the Service or remove the applicable Customer Data, or both, if it reasonably believes that Customer has violated an applicable law relating to or in connection with the Service or the usage thereof.
f. Return of Customer Data. Upon written request by Customer, LogicGate will allow Customer to access the Service for a period of thirty (30) days after termination solely for the purpose of Customer to export Customer Data as provided in Section 2(a). After such thirty (30)-day period, LogicGate will delete the Customer Data. Notwithstanding the foregoing, LogicGate shall be permitted to retain one (1) copy of the Customer Data as may be necessary to comply with any legal, regulatory or compliance requirements or that would otherwise be unreasonably burdensome to destroy (such as archived computer files), provided that, any such retained Customer Data shall be subject to the confidentiality and security obligations set forth under this Agreement.
g. Return LogicGate Property Upon Termination. Upon termination of this Agreement for any reason, Customer must pay LogicGate for any unpaid amounts due for Service through the date of termination, and destroy or return at Customer’s sole cost and expense (in LogicGate’s discretion) any and all property of LogicGate. Upon LogicGate’s request, Customer will confirm in writing its compliance with this destruction or return requirement.
10. LIABILITY LIMIT.
a. TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL LOGICGATE, ITS AFFILIATES OR THEIR RESPECTIVE CONTRACTORS (AS APPLICABLE) BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, COVER, BUSINESS INTERRUPTION OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, COSTS OF DELAY; LOSS OF DATA, RECORDS OR INFORMATION, OR DATA MISUSE; AND LOST PROFITS, REVENUE, GOODWILL OR ANTICIPATED COST SAVINGS) ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE SERVICE OR ANY PROPERTY OR INFORMATION PROVIDED BY LOGICGATE TO CUSTOMER, REGARDLESS OF THE THEORY OF LIABILITY AND EVEN IF LOGICGATE KNOWS OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS AND EVEN IF CUSTOMER’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE.
b.Except for LogicGate’s willful misconduct, LogicGate’s and its affiliates’ total aggregate liability arising out of or related to this Agreement or the Service (whether in contract, tort or otherwise) shall be limited to Customer’s direct damages, not to exceed the amount paid by Customer within the twelve (12)-month period prior to the first incident that gave rise to the liability.
11. INDEMNITY.
a. Indemnity by LogicGate. Subject to applicable limitations herein, LogicGate shall indemnify, defend and hold harmless Customer from and against any third party claim, suit, or proceeding (“Claim”) arising out of, related to or alleging infringement or misappropriation of any patent, copyright, trademark, trade secret, or other intellectual property right by the Service (each an “Infringing Item”), and any third party damages or other losses resulting therefrom (“Losses”), provided that the alleged infringement is not the result of Customer’s acts or omissions. For the avoidance of doubt, an Infringing Item shall not include Third-Party IP provided by Customer, and LogicGate shall have no liability for, or indemnification obligation related to, an infringing item if it is Third-Party IP provided by Customer.
b. LogicGate Disclaimer. LogicGate shall not have any liability or obligation under this Section in regard to any Claim based on (1) the Customer’s or any third-party’s combination, operation or use of the Infringing Item with equipment, data, software or documentation not supplied by LogicGate; or (2) modifications to the Infringing Item by a party other than LogicGate. In the event LogicGate becomes aware of any potential Claims under Section 11(a), LogicGate may in its discretion (i) modify the Services so that they are no longer claimed to infringe or misappropriate, (ii) obtain a license for Customer’s continued use of the infringing or misappropriating Service in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for the infringing or misappropriating Services upon thirty (30) days’ prior written notice and refund to Customer any prepaid fees covering the remainder of the term of the subscriptions so terminated. Under no circumstances shall LogicGate or its affiliates have any indemnification obligation with respect to any Losses to the extent arising in connection with Customer’s breach of this Agreement (or any applicable Order Form), or any applicable law or the acts or omissions of Customer.
c. Indemnity By Customer. Customer shall defend, indemnify, and hold harmless LogicGate from and against any and all Claims arising from any allegations that (i) Customer or its Authorized Users or other users used or are using the Service in a manner that breaches Customer’s obligations under this Agreement and/or the Order Form(s) then in effect, (ii) Customer is in breach of its obligations under Section 2(c), or (iii) Customer’s use of the Services in combination with any equipment, software, data, information, content or documentation not supplied by LogicGate that infringes upon, misappropriates or violates any third party's patent, copyright, trademark, trade secret or other intellectual property or privacy right, or violates the terms of this Agreement (including any Order Form(s) then in effect) or any applicable law.
d. Procedure; Exclusive Remedy. The indemnified party will have the right to participate in the defense of claim at its own expense and with counsel of its own choosing, but the indemnifying party will have sole control over the defense and settlement of the Claim; provided, however, that the indemnifying party shall not settle any such Claim if such settlement does not fully and unconditionally release the indemnified Party from all liability relating thereto, unless the indemnified Party otherwise agrees in writing. This Section 11 sets forth the indemnifying party’s sole liability to, and the indemnified party’s sole and exclusive remedy against, the other party for any third-party claim described in this Section 11.
e. GOVERNING LAW; VENUE. This Agreement is governed by the laws of the State of Delaware (without regard to conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this A Nothing in this Agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its attorneys’ fees and costs from the other party. Any legal action or proceeding arising out of or relating to this Agreement or the subject matter hereof shall be instituted in any United States federal court or state court located in Chicago, Illinois, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such action or proceeding. The parties agree that the terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF. The parties acknowledge and agree that the terms of this Section 12 are reasonable and hereby irrevocably and unconditionally (a) waive any objection to such courts having venue of any action or proceeding and (b) waive and agree not to claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum.
13. OTHER TERMS.
a. Customer Reference. Customer agrees (i) that LogicGate may identify Customer as a recipient of services and use Customer’s logo in sales presentations, marketing materials and press releases, and (ii) to develop a brief Customer profile and/or participate in a case study for use by LogicGate on logicgate.com for promotional purposes.
b. No Assignment; No Third-Party Beneficiaries. Neither party may assign or transfer this Agreement or an Order Form to a third party without the prior written consent of the other party, except that this Agreement with all Order Forms then in effect may be assigned, without the consent of the other party, as part of a merger, or sale of all or substantially all the assets, of the assigning party. This Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns. There are no third-party beneficiaries under this Agreement other than indemnified parties.
c. Subcontracting. LogicGate may subcontract portions of the Service; provided, that, LogicGate shall be responsible for its subcontractors throughout the course of the work required to perform such portions of the Service. LogicGate shall ensure that each subcontractor is bound to substantially similar obligations and requirements as set forth herein.
d. Independent Contractors. The parties are independent contractors with respect to each other. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties; and each party will be solely responsible for the payment of any and all compensation owed to its employees (including employment related taxes).
e. Enforceability and Force Majeure. If any term of this Agreement is invalid or unenforceable, the other terms remain in effect. Except for the payment of monies, neither party is liable for events beyond its reasonable control, including, without limitation acts of war, terrorism, hurricanes, earthquakes, other acts of God or nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control (“Force Majeure Events”). No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by Force Majeure Events.
f. Money Damages Insufficient. Any breach by a party of this Agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party and money damages may not be sufficient. In addition to any other rights or remedies, the other party may seek a court order to stop any breach or avoid any future breach.
g. Feedback. By submitting ideas, suggestions or feedback to LogicGate regarding the Service (“Feedback”), Customer hereby grants LogicGate a worldwide, assignable, sublicensable, transferrable, irrevocable, unlimited, royalty-free and fully-paid perpetual license to use such Feedback for any business purpose.
h. Insurance. LogicGate will maintain the following policies of insurance, at a minimum:
Commercial General Liability Insurance (CGL): $1,000,000.00 per occurrence, and $2,000,000.00 in the aggregate;
Automobile Liability: $1,000,000.00 combined single limit;
Worker’s Compensation: $1,000,000.00; and
Cyber Liability (including Errors & Omissions): $5,000,000.00 each wrongful act, and $5,000,000.00 in the aggregate
Additionally, LogicGate hereby agrees to include Customer as an additional insured under LogicGate’s CGL and Cyber Liability insurance policies.
i. Notices. Any notice required or permitted by this Agreement shall be in writing and shall be delivered as follows with notice deemed given as indicated: (a) by personal delivery when delivered personally; (b) by overnight courier upon written verification of receipt; (c) by electronic transmission upon acknowledgment of receipt of electronic transmission; or (d) by certified or registered mail, return receipt requested, upon confirmation of delivery. Notices shall be sent to LogicGate at the address set forth in the signature block below, or such other address as LogicGate may specify in writing. Notice shall be sent to LogicGate and Customer at the addresses set forth in the applicable Order Form, or such other address as either party may specify in writing. Notices in relation to data privacy practices as described in the DPA will be provided as described therein
j. Entire Agreement, Changes, Waiver. This Agreement and all Order Form(s) and SOWs then in effect constitute the entire Agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this Agreement. Any representation, promise or inducement not included in this Agreement is not binding. LogicGate rejects additional or conflicting terms of any Customer form-purchasing document or other writing. No modification of this Agreement is effective unless both parties sign it, and no waiver is effective unless the party waiving the right signs a waiver in writing. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
k. Construction. This Agreement will not be construed in favor of or against either party by reason of authorship.
l. Order of Precedence. If there is an inconsistency between this Agreement and an Order Form then in effect, the Order Form prevails.
m. Survival of Terms. Any terms that by their nature survive termination of this Agreement for a party to assert its rights and receive the protections of this Agreement, will survive.
n. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
o. Execution. The individual executing this Agreement and any Order Form on behalf of Customer hereby represents and warrants that he/she has the right, power, legal capacity and appropriate corporate or other applicable organizational authority to enter into this Agreement and/or any Order Form on behalf of Customer.
v.2.13
Last Updated: December 2023