SecureSky, Inc. Active Protection Platform Terms of Service

SecureSky, Inc. a company incorporated under the laws of Delaware, USA, with a registered address at 5005 S. 153rd St., Suite 202, Omaha, NE 68137 (“SecureSky”), provides use and access to its software-as-a-service application known as the SecureSky Active Protection Platform (“Platform”), collectively defined as “Services.”

Please carefully read these Terms of Service (“Agreement”) using the Services or entering into a Statement of Work (“SOW”) with SecureSky for Active Protection Platform Services. This Agreement is incorporated by reference into any and all SOWs, and forms a legally binding agreement between the recipient and/or payor of the Services (“Client”) and SecureSky. SecureSky reserves the right to amend, modify, update and change any of the terms of this Agreement from time to time, and will notify Client of any such amendment, modification or change by publishing a new version of this Agreement at http://securesky.com/platform-terms-of-service/. Any updates or modifications to this Agreement will take effect immediately and continued use of the Services will be deemed to constitute Client acceptance of the changes to this Agreement. It remains Client’s responsibility to ensure that Client is aware of current terms and conditions of this Agreement. 

SecureSky and Client may each herein be referred to individually as a “Party,” or collectively as the “Parties.”

  1. Definitions.
    1. Access Credentials” means any username, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Platform.
    2. Access Software” means any software in object code form which is supplied by SecureSky in conjunction with the Services and is required to be installed and operated on Client Facilities in order to use or access the Platform. Access Software may include server-side software, workstation software, software applications and/or plug-ins for third party software.
    3. Authorized User” means Client’s employees, consultants, contractors, agents or other parties who are authorized by Client to access and use the Services under the rights granted to Client pursuant to this Agreement.
    4. Client Facilities” means (a) all hardware, including servers necessary to deploy the Access Software; (b) Internet access; (c) systems software for the hardware and access devices; (d) software required to access the Platform in addition to the Access Software (such as a compatible Internet browser); and (e) third party office applications and other software.
    5. “Client Tenant Environments” means third-party provisioned software-as-a-service, platform-as-a-service, infrastructure-as-a-service, or other cloud-based services that the Client has duly licensed for access and use and is contracting with SecureSky with respect to access and use of the Platform. 
    6. “Client Tenant Data” means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly, from Client or an Authorized User by or through the Services or that incorporates or is derived from the Processing of such information, data, or content by or through the Platform. For the avoidance of doubt, Client Tenant Data does not include Resultant Data, or any other information reflecting the access or use of the Platform by or on behalf of Client or any Authorized User.
    7. “Effective Date” means the date identified on a SOW, or when Client is granted access and use of the Services, whichever is earlier.
    8. “Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data processed thereby; or (b) prevent Client or any Authorized User from accessing or using the Platform as intended by this Agreement. 
    9. Intellectual Property” means all (a) patents, patent disclosures and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, (c) copyrights and copyrightable works (including computer programs and Platform Material(s), and rights in data and databases, (d) trade secrets, know-how and other confidential information, and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
    10. Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
    11. “Platform” means SecureSky’s software-as-a-service offering, specifically, its Active Protection Platform, which is used to Process data and information from the Client Tenant Environments. 
    12. “Platform Materials” means any manuals, instructions, or other documents or materials that SecureSky provides or makes available to Client in any form or medium and which describe the functionality, components, features, or requirements of the Platform, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof. For the avoidance of doubt, Platform Materials includes Resultant Data and any information, data, or other content derived from SecureSky’s monitoring of Client’s access to or use of the Platform.
    13. Process” means to take any action or perform any operation or set of operations that the Services are capable of taking or performing on any data, information, or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase, or destroy. “Processing” and “Processed” have correlative meanings.
    14. Resultant Data” means data and information related to or resulting from Client’s use of the Platform that is used by SecureSky in an aggregate and anonymized manner, including to compile statistical and performance information related to an individual Authorized User or the provision and operation of the Platform. 
    15. “Services” means the Platform offering and Platform Materials, as may be further detailed in an SOW.
  2. Services.
    1. Access and Use. Subject to and conditioned on Client’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, SecureSky hereby grants Client a non-exclusive, non-transferable (except in compliance with Section 11) right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Client’s internal use. SecureSky shall provide to Client the Access Credentials within a reasonable time following the Effective Date. 
    2. Control. Except as otherwise expressly provided in this Agreement, as between the parties:
      1. SecureSky has and will retain sole control over the operation, provision, maintenance, and management of the Services; and
      2. Client has and will retain sole control over the operation, maintenance, and/or management of, and all access to and use of, the Client Tenant Environments, Client Facilities, and sole responsibility for all access to and use of the Platform Materials by any Person by or through the Client Tenant Environments, Client Facilities, or any other means controlled by Client or any Authorized User, including any: (i) information, instructions, or materials provided by any of them to the Services or SecureSky; (ii) results obtained from any use of the Services other than Resultant Data; and (iii) conclusions, decisions, or actions based on such use. As may be necessary to provide the Services, Client will provide SecureSky any and all applicable rights, access, and licenses to Client Tenant Environments necessary to provide the Services
    3. Changes. SecureSky reserves the right, in its sole discretion, to make any changes to the Services that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of the Services to its Clients; (ii) the competitive strength of or market for the Services; or (iii) the Service’s cost efficiency or performance; or (b) to comply with applicable law. 
    4. Suspension or Termination of Platform. SecureSky may, directly or indirectly, suspend, terminate, or otherwise deny Client’s, any Authorized User’s, or any other Person’s access to or use of all or any part of the Services, without incurring any resulting obligation or liability, if: (a) SecureSky receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly, or by reasonable implication, requires SecureSky to do so; or (b) SecureSky believes, in its sole discretion, that: (i) Client or any Authorized User has failed to comply with any term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement; (ii) Client or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any use of the Platform; or (iii) any SOW hereunder this Agreement expires or is terminated. This Section 2.4 does not limit any of SecureSky’s other rights or remedies, whether at law, in equity, or under this Agreement.
    5. Scheduled Downtime. SecureSky will use commercially reasonable efforts to: (a) schedule downtime for routine maintenance of the Services between the hours of 12:00 a.m. and 6:00 a.m., Central Standard Time; and (b) give Client at least eight hours prior notice of all scheduled outages of the Services (“Scheduled Downtime”).
    6. Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any Intellectual Property rights in or relating to, the Services, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Services are and will remain with SecureSky and the respective rights holders in any third-party materials utilized with or as part of the Services.
  3. Usage, Restrictions, and Obligations. 
    1. Access Software. Access to the Services may require Client to download Access Software locally on Client Facilities. If applicable, Client must allow the downloaded and locally deployed software to integrate with such programs and devices necessary to use and provide data to the Service. In such an event, SecureSky grants to Client a worldwide, non-exclusive, non-transferable, non-sublicensable license to such Access Software during the Term solely for the purpose of using the Services.
    2. Restrictions. Client shall not, and shall not permit any other Person to, access or use the Services except as expressly permitted by this Agreement. For purposes of clarity, and without limiting the generality of the foregoing, Client shall not, except as this Agreement expressly permits:
      1. copy, modify, or create derivative works or improvements of the Services;
      2. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Services to any Person, including on or in connection with the internet or any time-sharing, service bureau, software-as-a-service, cloud, or other technology or service;
      3. reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services, in whole or in part;
      4. bypass or breach any security device or protection used by the Services or access or use the Services other than by an Authorized User through the use of his or her own then valid Access Credentials;
      5. input, upload, transmit, or otherwise provide to or through the Platform or SecureSky systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code;
      6. damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Platform, SecureSky Systems, or SecureSky’s provision of the Platform to any third party, in whole or in part;
      7. remove, delete, alter, or obscure any trademarks, Platform Materials, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Platform, including any copy thereof;
      8. access or use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property rights or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any other SecureSky Client), or that violates any applicable Law;
      9. access or use the Services for purposes of competitive analysis of the Services, the development, provision, or use of a competing software service or product or any other purpose that is to SecureSky’s detriment or commercial disadvantage; or
      10. otherwise access or use the Services beyond the scope of the authorization granted under this Agreement or any SOW hereunder.
    3. Data Backup. The Platform does not replace the need for Client to maintain regular data backups or redundant data archives, and Client is encouraged to frequently conduct data backups with respect to Client Tenant Data. SECURESKY HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CLIENT TENANT DATA.
    4. Client Facilities. Client shall, at its sole expense, provide, configure and maintain Client Facilities to the extent required for Client and Authorized Users to obtain the benefit of the Services and for the deployment of Access Software on Client Facilities, as applicable. SecureSky shall be solely responsible for the Platform, including all computers, software, databases, electronic systems (including database management systems), and networks used by or for SecureSky in connection with the Services. It is Client’s responsibility to ensure that the Client Facilities provide sufficient capacity, performance and connectivity and meet the minimum requirements recommended by SecureSky from time to time during the Term. SecureSky will not be responsible for any Services outage or other issue with any Services to the extent arising from the failure of the Client Tenant Facilities to conform to the minimum or recommended levels of configurations communicated by SecureSky to Client.
  4. Fees and Payment.
    1. Fees and Expenses. In consideration of the Services provided by SecureSky to Client, Client shall pay to SecureSky the fees and reasonable out of pocket expenses incident to the performance of the Services set forth in an applicable SOW.
    2. Invoices. SecureSky shall submit invoices for Services to Client on a frequency as set forth in a SOW, and Client shall pay such invoices on a Net 30-day basis in United States Dollars. Invoices will be deemed accurate and fully payable unless disputed in writing by Client within ten (10) days of Client’s receipt of the invoice. Any amount remaining unpaid after the date due will accrue interest at a rate equal to the lesser of one and one-half percent (1.5%) per month or the highest rate allowed by applicable law. Client shall pay any amounts incurred by SecureSky in the collection of past-due amounts owed, including, but not limited to, reasonable attorney’s fees and costs.
    3. Taxes. Client shall pay any and all federal, state, and local taxes applicable to the Services.
  5. Confidentiality. 
    1. Confidential Information. “Confidential Information” means any information, technical data, or know-how, whether or not a statutory trade secret, of the Disclosing Party, including, but not limited to, that which relates to product plans, intellectual property, products, services, customers, employees, documents, markets, software, developments, inventions, processes, designs, drawings, engineering, marketing, product pricing or financial information of the Disclosing Party. Confidential Information shall include, without limitation, the terms and conditions of this Agreement and all Client Tenant Data. The foregoing notwithstanding, Confidential Information shall not include any information which: (i) is already known by means not subject to a confidentiality obligation of the Receiving Party at the time disclosed by the Disclosing Party; (ii) is or becomes available through public sources apart from any unauthorized disclosure by the Receiving Party; or (iii) is obtained by the Receiving Party from a third party who has the right to disclose the same.
    2. Protection of Confidential Information. Each Party (“Receiving Party”) may, from time to time, learn, receive, hold, or have access to (in written, oral or electronic form) Confidential Information from the other Party (“Disclosing Party”). During the Term, and indefinitely thereafter as long as the Confidential Information is held, the Receiving Party shall protect any Confidential Information received from the Disclosing Party: (i) by limiting use and disclosure of the same to its employees and/or authorized agents or independent contractors to the extent necessary for them to perform the Receiving Party’s obligations in this Agreement, and (ii) by exercising the same degree of care it uses to protect its own information of like importance from unauthorized use or disclosure, but in no event less than a reasonable degree of care.
    3. Permitted Use/Disclosure of Confidential Information. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information other than Client Tenant Data received hereunder: (a) pursuant to a disclosure requirement applicable to such party, or (b) to the Receiving Party’s own legal counsel, independent accountant, auditor or similar person who has a need to know such Confidential Information.
    4. Legal Demands. Notwithstanding anything in this Agreement to the contrary, the Receiving Party may disclose Confidential Information, including Client Data, in response to a legal demand to the extent that the Receiving Party has complied with its obligations under this Section 5 of the Agreement and the Disclosing Party has not caused the legal demand to be quashed or set aside. With respect to any legal demand for Confidential Information, the Receiving Party shall, to the extent not prohibited by the terms of the legal demand or governing law, (i) promptly notify the Disclosing Party of the legal demand prior to the disclosure of any Confidential Information, and (ii) cooperate in good faith with the Disclosing Party, at the Disclosing Party’s expense and in the Disclosing Party’s discretion, with any reasonable effort to resist the production of Confidential Information, including obtaining a protective order or defending a motion to compel the production of Confidential Information. To the extent the Disclosing Party does not cause the legal demand to be quashed or set aside, the Receiving Party may comply with the legal demand.
    5. Notice of Breach. Each Party will immediately notify the other Party of any theft or unauthorized disclosure, reproduction or use of any Confidential Information, or any part of such information, of which such Party has knowledge. The notice shall include, if available, the name, title, and business address of any person, whether or not employed by the notifying Party whom such Party reasonably believes has unauthorized possession of or made unauthorized disclosure, reproduction or use of Confidential Information and a detailed description of the Confidential Information at issue and the factual circumstances surrounding the unauthorized disclosure, theft, or loss.
    6. Injunctive Relief. Each Party acknowledges that any breach of the provisions of Section 5 may result in irreparable harm to the other Party and that such other Party may have no adequate remedy at law. The Parties agree that each Party shall have the right to seek equitable relief by the way of injunction to restrain such breach and to such further relief it may be entitled at law or in equity without the necessity of such Party showing actual damages or that monetary damages would not afford an adequate remedy.
  6. Ownership. 
    1. SecureSky Intellectual Property. SecureSky and its subcontractors and licensors are the sole and exclusive owner of the SecureSky Intellectual Property, Access Software, Platform Materials, and other proprietary rights and interests comprising and used to support and operate the Services. Client acknowledges and agrees that Client does not have, or acquire pursuant to or as a result of this Agreement, any ownership interest, license, lease or other right or interest in or with respect to the Services, the Access Software, the Platform Materials, or any Intellectual Property (other than Client Tenant Data) comprising or used to support or use the Services other than as expressly provided in Section 2 and all other rights are reserved by SecureSky.
    2. Client Intellectual Property. Client shall have sole ownership of the Client Intellectual Property, including Client Tenant Data. SecureSky shall not have or acquire any right, claim, title, or interest in or to any of the Client Intellectual Property; provided, however, SecureSky shall be entitled to access and use of the Client Intellectual Property and Client Tenant Data as necessary for SecureSky to deliver the Services to Client during the Term of this Agreement. Client hereby grants SecureSky a limited, royalty-free, fully-paid up, non-exclusive, non-transferable and non-sublicensable license to store and Process the Client Tenant Data as necessary to provide the Services as provided in this Agreement.
    3. Service Users. Client acknowledges and agrees that its Authorized Users are not intended third party beneficiaries under this Agreement and that neither Party has any duties to any person other than the other Party hereto under this Agreement. Client shall indemnify SecureSky to the extent of any use of the Services by an Authorized User in breach of this Agreement and any claims by Authorized Users that SecureSky has duties to such Authorized Users arising under or with respect to the Service provided under this Agreement.
  7. Representations and Warranties. 
    1. From SecureSky. SecureSky represents and warrants to Client that the Services, and authorized use thereof, will not infringe any Intellectual Property rights of any third party and will conform, in all material respects, with the applicable Platform Materials. THE SERVICES ARE PROVIDED “AS IS.” EXCEPT AS STATED IN THIS AGREEMENT OR ANY SOW, SECURESKY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. SECURESKY DOES NOT WARRANT THAT THE SERVICES WILL DETECT ALL VULNERABILITIES OR WILL BE ERROR FREE; THAT ALL DEFICIENCIES, ERRORS, DEFECTS OR NONCONFORMITIES WILL BE CORRECTED; THAT THE SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER PLATFORM, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE; OR THAT THE SERVICES WILL MEET ANY STANDARD OTHER THAN THE SPECIFIC REQUIREMENTS DEFINED WITHIN A SOW. Notwithstanding anything herein to the contrary, SecureSky makes no warranties with respect to any portion of any third party software, hardware or other third party products. 
    2. From Client. Client represents and warrants to SecureSky that:
      1. It will comply with all relevant security industry standards and practices to the extent such compliance is commercially reasonable.
      2. It shall employ all physical, administrative, and technical controls, screening and security procedures and other safeguards necessary to securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of Client Facilities or the Services.
      3. Client owns or otherwise has and will have the necessary rights and consents in and relating to the Client Tenant Data and Client Intellectual Property, and does not and will not infringe, misappropriate, or otherwise violate any third-party Intellectual Property rights, or any privacy or other rights of any third-party or violate any applicable law.
      4. Information pertaining to scanning or penetration testing Services, such as Client-provided Internet Protocol (IP) addresses, cloud environments and/or devices are owned or controlled by Client and Client is legally entitled to authorize the Services to be performed.
      5. SecureSky shall be entitled to rely, without verification or investigation, upon any and all instructions, guidelines, information, or materials provided or made available by Client.
      6. It shall at all times during the Term: (a) set up, maintain, and operate in good repair all Client Tenant Environments and Client Facilities on or through which the Platform is accessed or used; and (b) provide all cooperation and assistance as SecureSky may reasonably request to enable SecureSky to exercise its rights and perform its obligations under and in connection with this Agreement.
      7. If Client becomes aware of any actual or threatened activity prohibited by Section 3.2, Client shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and permanently erasing from their systems and destroying any data removed or copied from the Platform as part of such unauthorized access); and (b) notify SecureSky of any such actual or threatened activity. 
      8. It is in compliance with all statutory and regulatory requirements concerning unauthorized access or disclosure of confidential, sensitive or private information, especially as related to individuals, and will prevent transmission to SecureSky of (i) any data not provided for in this Agreement, (ii) any data not provided for in a SOW, and/or (iii) any data SecureSky does not otherwise agree in writing to accept, consistent with the standards for privacy and security of personal or protected information.
  8. Indemnification. 
    1. Indemnification by SecureSky. SecureSky shall indemnify Client and its officers, directors, and employees (collectively, the “Client Indemnified Parties”) and hold them harmless from and against any loss, damage, claim, liability, judgment or settlement of any nature or kind, and all costs and expenses relating thereto including, without limitation, reasonable legal fees and expenses (collectively, “Damages”) arising out of or resulting from any demand, claim, or legal action asserted against Client by a third party to the extent arising out of or resulting from the Services infringing the Intellectual Property Rights of such third party (“Infringement Claim”); provided, however, such Infringement Claim shall not apply to the extent the Damages result from (a) the Service being modified by any person or entity other than SecureSky; (b) the Service not being used in accordance with SecureSky’s instructions, specifications, and terms of this Agreement; (c) any content, information, or data provided by Client or other third parties; or (d) Client’s use of a release of the Service other than the most current release of the Service if such Infringement Claim would have been avoided by the use of the most current release provided by SecureSky.
      1. Provided, however, the foregoing indemnification obligations in this Section 8.1 shall not apply to the extent such Damages are caused by or result from the gross negligence or willful misconduct of any Client Indemnified Parties or the breach by Client of any of its obligations under this Agreement or a SOW.
    2. Indemnification by Client. Client shall indemnify, defend, and hold harmless SecureSky and each of its officers, directors, employees, agents, successors, and assigns (“SecureSky Indemnified Parties”) from and against any and all Damages incurred by such SecureSky Indemnified Parties resulting from any claim or action by a third party that arises out of or results from, or are alleged to arise out of or result from:
      1. Client Data, including any processing of Client Tenant Data by or on behalf of SecureSky in accordance with this Agreement;
      2. any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Client or any Authorized User, including SecureSky’s compliance with any specifications or directions provided by or on behalf of Client or any Authorized User to the extent prepared without any contribution by SecureSky;
      3. allegation of facts that, if true, would constitute Client’s breach of any of its representations, warranties, covenants, or obligations under this Agreement; 
      4. performance of the Services upon improper Internet Protocol (IP) addresses, cloud environments and/or devices provided by Client; or
      5. negligence or more culpable act or omission (including recklessness or willful misconduct) by Client, any Authorized User, or any third party on behalf of Client or any Authorized User, in connection with this Agreement.
      6. Provided, however, the foregoing indemnification obligations in this Section 8.2 shall not apply to the extent such Damages are caused by or result from the gross negligent or willful misconduct of any SecureSky Indemnified Parties or the breach by SecureSky of any of its obligations under this Agreement or a SOW.
    3. Client Indemnification for Testing Services. Client acknowledges that SecureSky’s performance of the Services may include scanning or penetration testing services, or other Processing of Client Tenant Environments, upon Client-provided Internet Protocol (IP) addresses, cloud environments and/or devices owned or controlled by Client (collectively the “Testing Services”) that, despite careful performance of the Testing Services by SecureSky, inherently increase the risk of system degradation or outage and unauthorized access to confidential, proprietary or privacy data and information. Client shall be responsible for, shall pay or cause to be paid, and shall indemnify, defend and hold harmless SecureSky Indemnified Parties from and against any Damages arising out of, resulting from or relating to any Testing Services furnished to Client or its affiliates as contemplated in this Agreement, including, but not limited to, any such Claims resulting from Client providing improper IP addresses, cloud environments, or devices to SecureSky.
    4. Indemnification Procedures. The Party seeking indemnification shall promptly notify the indemnifying Party in writing of any commencement of any action, suit or other legal proceeding (an “Action”) for which it seeks indemnification pursuant to this Section 8 and cooperate with the indemnifying Party at the indemnifying Party’s sole cost and expense. The indemnifying Party shall immediately take control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at the indemnifying Party’s sole cost and expense. The indemnifying Party shall not settle any Action on any terms or in any manner that adversely affects the rights of indemnified Party without the other Party’s prior written consent, which shall not be unreasonably withheld or delayed. Any indemnified Party may participate in and observe the proceedings at its own cost and expense with counsel of its own choice. A Party’s failure to perform any obligations under this Section 8.4 will not relieve the indemnifying Party of its obligations under Section 8 except to the extent that the indemnifying Party can demonstrate that it has been materially prejudiced as a result of such failure.
    5. Infringement. In the event an Infringement Claim is asserted, or if SecureSky determines or reasonably believes that the Service, or any portion thereof may violate a third party’s Intellectual Property Rights, SecureSky may, at its option and expense, within sixty (60) days choose to (a) modify the Service to be non-infringing (while substantially preserving its utility or functionality) or (b) obtain a license to allow for its continued use or delivery or (c) if SecureSky determines that neither (a) or (b) are commercially reasonable, SecureSky may terminate the applicable Service and refund to Client any unused, prepaid fees Client may have paid for such Service. THE RIGHTS GRANTED TO CLIENT UNDER THIS SECTION 8.5 SHALL BE CLIENT’S SOLE AND EXCLUSIVE REMEDY FOR ANY ALLEGED INFRINGEMENT BY THE SERVICES OF ANY INTELLECTUAL PROPERTY RIGHT.
  9. Limitation of Liability.
    1. Waiver of Certain Damages. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING OUT OF OR IN CONNECTION WITH MISTAKES, OMISSIONS, INTERRUPTIONS, DELAYS, ERRORS, DEFECTS, LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATORY PROFITS OR LOSS OF BUSINESS REPUTATION OR GOODWILL, IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE PLATFORM, LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, BREACH OF DATA OR SYSTEM SECURITY OR COST OF REPLACEMENT GOODS OR PLATFORM, EVEN IF A PARTY HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY LOST DATA, LOST PROFITS OR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR OTHER INDIRECT DAMAGES OF ANY KIND FOR ANY REASON WHATSOEVER INCLUDING, BUT NOT LIMITED TO, DAMAGES BASED UPON NEGLIGENCE, BREACH OF WARRANTY, STRICT LIABILITY, OR ANY OTHER THEORY.
    2. Limitation of Liability. EXCEPT AS PROVIDED IN SECTION 9.3 AND NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT OR ANY SOW TO THE CONTRARY, NEITHER PARTY’S CUMULATIVE LIABILITY UNDER THISAGREEMENT FOR ANY AND ALL CLAIMS RELATED TO ITS SERVICES OR ANY OTHER MATTERS INVOLVING OR OTHERWISE CONTEMPLATED BY THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, CAUSES OF ACTION ARISING OUT OF OR BASED UPON CONTRACT, TORT, WARRANTY, NEGLIGENCE, OT OTHERWISE, SHALL EXCEED THE AGGREGATE AMOUNT OF FEES PAID TO SECURESKY BY CLIENT UNDER THIS AGREEMENT DURING THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
    3. Exceptions to Limitations. IN NO EVENT WILL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED CLAIMS UNDER SECTION 5 (CONFIDENTIALITY) OR SECTION 8 (INDEMNIFICATION), REGARDLESS OF THE FORM OF ACTION, EXCEED FIVE TIMES THE AGGREGATE AMOUNT OF FEES PAID TO SECURESKY BY CLIENT UNDER THIS AGREEMENT DURING THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.  
    4. Clarifications and Disclaimers. THE LIABILITIES LIMITED BY THIS SECTION 9 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF A PARTY IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF A PARTY’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Section 9, a Party’s liability will be limited to the maximum extent permissible.
  10. Term and Termination.
    1. Term. This Agreement shall commence upon the Effective Date and continue for the term detailed in a SOW (“Term”). The Agreement may be renewed to the extent provided for under an SOW. Upon termination or expiration of this Agreement, upon the request of either Party, the other Party shall promptly destroy all Confidential Information and any other information, documents, manuals, equipment, and other materials belonging to the requesting Party.
    2. Termination. Either Party may terminate this Agreement upon the occurrence of a material breach by the other party, if such material breach has not been cured within thirty (30) days after written notice of such material breach has been given to such other Party.
    3. Survival. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Client to pay fees incurred before termination; (b) Sections 3.2 (Restrictions), 5 (Confidentiality), 6 (Ownership), 7.1 (Representations and Warranties From SecureSky), 8 (Indemnification), 9 (Limitation of Liability) and 12 (General Provisions); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.
  11. Export Compliance. Client acknowledges that the Services and any related equipment, software, technical data and Deliverables may be subject to U.S. export laws and regulations including, but not limited to, “deemed export” and “deemed re-export” regulations (collectively the “Export Laws”). Client acknowledges that the Export Laws may govern the Services (including related equipment, software, and technical data) and any Deliverables provided under this Agreement and Client agrees to comply with all Export Laws. Client agrees not to export, re-export, resell, or transfer any data, information, equipment, software programs and/or materials resulting from the Services or Deliverables, directly or indirectly, in violation of the Export Laws, or use them for any purpose prohibited by the Export Laws.
  12. General Provisions.
    1. Force Majeure. In no event will SecureSky be liable or responsible to Client, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by any circumstances beyond SecureSky’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, epidemics, passage of law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota, or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either Party may terminate this Agreement if a Force Majeure Event affecting the other Party continues substantially uninterrupted for a period of thirty (30) days or more. In the event of any failure or delay caused by a Force Majeure Event, SecureSky shall give prompt written notice to Client stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
    2. Non-Solicitation. During the Term of this Agreement, and continuing through the first anniversary of the termination of this Agreement, neither Party (or its subsidiaries, or partners) shall actively solicit to employ or employ any employee of the other Party, its affiliates or business partners who has performed any material work for the hiring party under this Agreement, and with whom the hiring party has had direct contact under this Agreement, without the other Party’s written consent. However, “actively solicit to employ or employ” shall not be deemed to include general recruitment advertising or postings addressed to the general public.
    3. Independent Contractors. The Parties agree that SecureSky is an independent contractor and not an employee, agent or partner of Client, or in a joint venture with Client. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between Client and either SecureSky or any employee or agent of SecureSky.
    4. No Waiver. Neither Party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
    5. Amendment. This Agreement may not be amended except through a written agreement by authorized representatives of each Party
    6. Non-Assignability and Binding Effect. Except as otherwise provided herein, Client may not assign this Agreement or any SOW to any third party without SecureSky’s prior written consent, such consent not to be unreasonably withheld or delayed. Either Party may assign this Agreement without consent in connection with a merger, reorganization, consolidation, change of control, or sale of all or substantially all of the assets to which this Agreement pertains; provided that the assigning party provides prompt written notice to the other Party of any such permitted assignment. Any assignment or transfer of this Agreement in violation of the foregoing shall be null and void. This Agreement and any SOW shall be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns.
    7. Notices. Except as otherwise set forth in this Agreement any and all notices, demands, or other communications required or desired to be given hereunder by any Party shall be in writing and shall be given in the following manner and be deemed given as follows: (i) if by personal delivery, on the date of receipt by the intended recipient; (ii) if by private courier or by Express Mail or certified postage prepaid and return receipt requested (as applicable), on the date of first attempted delivery (whether successful or not) to the intended recipient’s last known address; or (iii) if by e-mail to the addressee specified in this Section 12.7 or the signature page on the date of electronic confirmation of receipt by the intended recipient. All notices hereunder shall be addressed as follows:

      If to SecureSky:
      5005 S. 153rd St., Suite 202
      Omaha, NE 68137
      Email: legal@securesky.com
      If to Client: To the name, address and email provided in a SOW.

    8. SecureSky Marketing. Neither Party will make or issue any public statement regarding the existence or content of this Agreement without the prior written consent of the other Party; provided, however, Client agrees that SecureSky may include the Client name and/or logo in marketing presentations where the Client is included with other SecureSky clients.
    9. Construction. The Parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either Party by reason of authorship.
    10. Governing Law and Venue. This Agreement, including any SOW, and any claims, whether in contract, tort or otherwise, arising from this Agreement or any SOW shall be governed by and interpreted in accordance with the laws of Nebraska, without giving effect to its principles of conflicts of law. The Parties agree that the state and federal courts sitting in Douglas County, Nebraska USA shall have proper and exclusive jurisdiction and venue for any proceedings arising from this Agreement.
    11. Entire Agreement. This Agreement sets forth the entire agreement of the Parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither Party has relied upon any such prior or contemporaneous communications.
    12. No Third-Party Beneficiaries. The Services by SecureSky, and any related representations and warranties, are solely for the benefit of the Client. Nothing herein expressed or implied shall give or be construed to give to any person, other than the parties hereto, any legal or equitable rights hereunder. SecureSky assumes no liability to any third party (other than, as applicable, Indemnified Party’s) because of any reliance on the representations, warranties and agreements of Client with such third party based on this Agreement.
    13. Severability. If any severable provision of this Agreement is deemed invalid or unenforceable by any judgment of a court of competent jurisdiction, the remainder of this Agreement shall not be affected by such judgment, and the Agreement shall be carried out as nearly as possible according to its original terms and intent.
    14. Feedback. SecureSky has not agreed to and does not agree to treat as confidential any Feedback (as defined below) that Client or any Authorized User provides to SecureSky, and nothing in this Agreement or in the Parties’ dealings arising out of or related to this Agreement will restrict SecureSky’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Client or the Authorized User in question. Notwithstanding the provisions of Section 5 above, Feedback will not be considered Confidential Information, provided information Client transmits with Feedback or related to Feedback may be considered Confidential Information. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of SecureSky’s products or services).
    15. Conflicts. In the event of any conflict among a SOW or this Agreement, the following order of precedence will govern, with lower numbers governing over higher ones: (1) this main body of this Agreement; and (2) any SOW.

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