COMMSEC MANAGED SECURITY SERVICE PROVIDER (CUSTOMER) AGREEMENT
This CommSec CUSTOMER Agreement (“Agreement”) is made and entered into as of the last date near the parties’ signatures below (the “Effective Date”) by and between CommSec Communications & Security Limited. or one of its Affiliates (including any successor in interest of such party) (“CommSec”) and the customer (“Customer”) who accepts this Agreement. This Agreement governs the provision of managed security services for the “CommSec Business Secure” solution and constitutes a binding contract. This is a legal, enforceable contract between Customer and CommSec, and by accepting this Agreement or otherwise indicating your consent to this Agreement (and such time “Effective Date”), The Customer agrees to be bound by this Agreement. Each of CommSec and the Customer may sometimes be referred to herein as a “Party” and together “Parties.”
Whereas, CommSec offers its next-generation endpoint protection solutions (as defined below), including CommSec Business Secure Components, Cloud Components (delivered via hosted web services or on-prem solution), and associated CommSec assets and supporting documentation.
Whereas the Customer seeks a Managed Security Services Solution in relation to the CommSec Business Secure, subject to the terms herein.
Whereas CommSec agrees to grant the Customer the rights to use its CommSec Business Secure service, provided the customer agrees to comply with the terms herein.
In consideration of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Certain Definitions. Certain capitalized terms used in this Agreement shall have the meaning assigned to such terms where defined and if not defined in this Agreement, shall have the meaning assigned to such terms in the CommSec Terms of Service. The terms defined in this Section 1 shall mean as follows:
1.1. “Affiliate” means any entity controlling, controlled by, or under common control with a Party, whereby “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise).
1.2. “Customer Endpoint” means and device such as laptop, desktop, mobile phone or server
1.3. “Customer(s)” mean any third party who uses the CommSec Business Secure service or any component (including via download of the Endpoint Components of the CommSec Business Secure service to the Customer Endpoint(s)).
1.4. “Customer Data” means all data and information which is uploaded to, processed by and/or stored within the service via Customer’s use of the services.
1.5. “Documentation” means the written and/or electronic end user or technical documentation, including but not limited to documents, images, recordings and/or videos specifying the functionalities of the CommSec Business Secure service made available by CommSec through the
CommSec website (www.CommSec.ie) (“Site”) or otherwise, updated by CommSec from time-to-time in the normal course of business (“Documentation”).
1.6. “Endpoint(s)” means physical or virtual hardware devices or end points that can process data.
1.7. “Active Endpoint” means an Endpoint where the Endpoint Component of the service has been installed and not deactivated/uninstalled.
1.8. “Endpoint Component(s)” shall mean the end point components of the CommSec Business Secure service which are to be downloaded to Endpoints.
1.9. “Enhancements” mean any and all fixes, or any new or modified features added to, or augmenting or otherwise modifying the Solutions or other updates, modifications, refinements and/or enhancements to the services made available by CommSec at no additional charge and delivered to Customers.
1.10. “Intellectual Property Rights” means all patents, copyrights, moral rights, trademarks, trade secrets and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing.
1.11. “CommSec Terms of Service” or “Terms,” mean the version of the Terms of Service Agreement provided to the Customer or the standard terms of service among CommSec and its customers subscribing to the services, available at https://www.CommSec.ie/terms-of-service/, as may be amended from time to time by CommSec in accordance with its terms.
1.12. “Managed Services” mean the delivery, operation, management, support or use of CommSec Business Secure service on behalf of or for the benefit of the Customer. Managed Services included in CommSec Business Secure consist of Ransomware Protection & Anti-Virus Management, System Monitoring, Device Encryption Management, Security Update Management, Windows Firewall Management, Web Filtering of Malicious Sites, Mobile Device Management, USB Management, IT Asset Inventory, Remote Security Assistance, and Monthly Status Reports. The Managed Service is limited to the listed components and applies solely to devices for which the service has been purchased.
1.13. “CommSec Assets” mean the CommSec Business Secure service, CommSec Documentation, and any and all components, derivatives, copies, Enhancements and/or modifications to any of the forgoing provided or made available to the Customer hereunder, and all Intellectual Property Rights associated with any of the forgoing.
1.14. “Customer Tools” mean any tools provided to the Customer by CommSec to facilitate CommSec’s ability to provide Managed Services with respect to the CommSec Business Secure service to Customers.
1.15. “CommSec Solutions” or “Solutions” shall mean the CommSec proprietary endpoint security protection platform Solutions provided to Customer hereunder, including any Server Components and Endpoint Components, together with the relevant Documentation, and all Enhancements to the Solutions.
1.16. “CommSec Support and Maintenance” shall mean the CommSec support and maintenance obligations. “Server Components” means the server components of the Solutions which may either operate via hosted web services, or as on-prem solution, subject to CommSec written consent on a case-by-case basis (Server Components and Endpoints Components, together, “Components”).1.17. “Third Party Products” shall mean any third-party products, applications, services, software, networks, systems, directories, websites, databases and/or information which may be linked to or integrate with the Managed Service.
2. License; Restrictions.
2.1. Standard Managed Service License.
Subject to the terms and conditions of this Agreement, and during the Term of this Agreement, CommSec grants the Customer a non-transferable, non-sublicensable, non-exclusive license to: (a) demonstrate the Managed Service features and functionality to potential customers (b) implement the CommSec Server Components of the CommSec Managed Services; (c) access, copy, distribute and install (directly or indirectly) the Endpoint Components of the Managed Service on Endpoints owned or controlled by Customer; (d) manage the service solely in accordance with the relevant Documentation; and (e) use the CommSec Managed Services to support Customers as contemplated herein, provided with respect to all rights specified in (a)-(d) above.
If a potential Customer would like to conduct an evaluation of the Managed Service (“Evaluation”), the following shall apply (notwithstanding any contrary term specified in any other sections of this Agreement): Customer may (a) implement the Managed Service on up to five (5) Customer Endpoint; (b) use the Managed Service to conduct an evaluation; and (c) permit the Customer access to use the Managed Service for a maximum of thirty (30) days (“Evaluation Period”) (in each of (a)-(c), unless otherwise is approved in writing on a case by case basis by CommSec ), and solely for the limited purpose of allowing the relevant Customer to evaluate the CommSec Managed Services.
NOTWITHSTANDING ANYTHING ELSE HEREIN, THE SOLUTIONS AND ALL COMPONENTS IMPLEMENTED AS PART OF ANY EVALUATION ARE PROVIDED “AS IS”, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, COMMSEC DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES AGAINST INFRINGEMENT OF THIRDPARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, OR THOSE ARISING BY LAW, STATUTE, USAGE OF TRADE, OR COURSE OF DEALING. IN CONNECTION WITH ANY EVALUATION. CUSTOMER AND THE CUSTOMER ASSUME ALL RISK AS TO THE RESULTS OF PERFORMANCE OF THE SOLUTIONS AND COMMSEC SHALL HAVE NO LIABILITY TO THE CUSTOMER OR ANY OTHER PERSON OR ENTITY FOR ANY DOWNTIME, OR FAILURES OF THE SOLUTION, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR PROFIT, LOST OR DAMAGED DATA, LOSS OF PROGRAMS OR INFORMATION OR OTHER INTANGIBLE LOSS ARISING OUT OF THE USE OF OR THE INABILITY TO USE THE SOLUTIONS, OR OTHER COMMERCIAL OR ECONOMIC LOSS, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR THAT SUCH DAMAGES ARE FORESEEABLE. COMMSEC IS ALSO NOT RESPONSIBLE FOR CLAIMS BY ANY THIRD PARTY. COMMSEC ’S MAXIMUM AGGREGATE LIABILITY TO THE CUSTOMER WITH RESPECT TO ANY EVALUATION SHALL NOT EXCEED Euro €100. IN JURISDICTIONS WHERE THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT ALLOWED, THE LIABILITY OF COMMSEC IS LIMITED TO THE GREATEST
EXTENT PERMITTED BY LAW. THE FOREGOING LIMITATION ON LIABILITY SHALL NOT APPLY TO THE PARTIES OBLIGATIONS UNDER SECTION 6 (CONFIDENTIALITY).
Except as expressly authorized by this Agreement, Customer may not do any of the following: (a) modify, disclose, alter, translate, or create derivative works of the CommSec Assets (or any components thereof) or any accompanying Documentation.
(b) license, sublicense, resell, distribute, lease, rent, lend, transfer, assign or otherwise dispose of the CommSec Assets (or any components thereof) or any a Documentation; (c) disassemble, decompile or reverse engineer the CommSec Assets (except to the extent and for the express purposes authorized by any and all applicable federal or state laws or regulations); (d) use the CommSec Assets in any illegal way, in violation of any law or regulation or third party property or personal right, including, to store or transmit infringing, libellous or otherwise unlawful or tortious material, or material in violation of third-party property, personal or privacy rights; (e) use the CommSec Assets to store or transmit any viruses, software routines or other code designed to permit unauthorized access, to disable, erase or otherwise harm software, hardware or data, or to perform any other harmful actions; (f) copy, frame or mirror any part or content of the CommSec Assets; (g) access or use the CommSec Assets to build a competitive product or service, or copy any features or functions of the CommSec Assets; (h) interfere with or disrupt the integrity or performance of the CommSec Assets; (i) attempt to gain unauthorized access to the CommSec Assets or their related systems or networks or to another user account; (j) disclose to any third party or publish in any media any performance information or analysis relating to the CommSec Assets without consent of CommSec (except that Customer may share such information with its Customer under obligations of confidentiality at least as strict as the confidentiality obligations under Section 6 of this Agreement) ; (k) remove, alter or obscure any proprietary notices in or on the CommSec Assets any Customer accompanying Documentation, including copyright notices or (l) probe, scan or test the vulnerability of the Solutions, or take any action in an effort to circumvent the Solutions; or test the vulnerability of the CommSec Assets, nor breach the security or authentication measures on the CommSec Assets, or take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the CommSec Assets, such as a denial of service attack; (m) make unauthorized, false or misleading or illegal statements concerning the subject matter of this Agreement, including the Solutions; (n) access or use the Solutions on behalf of any third party without obtaining valid authorization from such third party; (o) white label the Solutions or rename the Solutions or imply that Customer is the owner of Solutions or otherwise falsely represent the relationship between CommSec and Customer. All restrictions stated herein with respect to CommSec Assets apply to any components of the CommSec Assets. Customer also agrees that it shall not allow Customers access the Solutions (and it will not install or allow installation of any component of the CommSec Managed Service on any Customer Endpoints) unless and until such Customer is subject to binding Terms. There are no implied licenses granted by CommSec under this Agreement.
2.4. Ownership and Reservation of Rights. The Managed Service is licensed and not sold. As between the Parties, CommSec reserves all right, title, and interest in and to the CommSec Assets, including Customer Tools and any and all Intellectual Property Rights embodied therein. CommSec reserves all rights not expressly granted in this Agreement, no licenses are granted under this Agreement, whether by implication, estoppel or otherwise, except as expressly set forth in this Agreement.
Level 1 & 2 Support. CommSec shall provide all level 1 & 2 support to the Customer.
“Confidential Information” means all information or material disclosed (whether in oral, written, or other tangible or intangible form) by one party, its Affiliates or its contractors or agents (the “Disclosing Party”) to the other party, its Affiliates, or its contractors or agents (the “Receiving Party”) concerning or related to this Agreement or the Disclosing Party (whether before, on or after the Effective Date) that the Receiving Party knows or reasonably should know, given the facts and circumstances surrounding the disclosure of the information by the Disclosing Party, is confidential information of the Disclosing Party. The Parties agree that, without limiting the foregoing, the CommSec Managed Services (and any performance data, benchmark results, and technical information relating thereto), the Documentation, and Customer Data shall be deemed the Confidential Information of CommSec.
Except as expressly authorized herein, the Receiving Party agrees to: (i) use the Confidential Information of the Disclosing Party only to perform hereunder (including providing the features and services associated with the normal use of the CommSec Managed Services or exercise rights granted to it hereunder; (ii) treat all Confidential Information of the Disclosing Party in the same manner as it treats its own similar proprietary information, but in no case will the degree of care be less than reasonable care; and (iii) disclose the Disclosing Party’s Confidential Information only to those employees , contractors, customers of the Receiving Party who have a need to know such information for the purposes of this Agreement, provided that any such employee, contractor, or customer shall be subject to obligations of non-use and confidentiality with respect to such Confidential Information at least as restrictive as the terms of this Agreement, and the Receiving Party shall remain liable for any non-compliance of such employee, contractor, or customer with the terms of this Agreement. Each party agrees that the terms and conditions of this Agreement will be treated as Confidential Information of both parties and will not be disclosed to any third party; provided, however, that each party may disclose the terms and conditions of this Agreement: (a) to legal counsel of such party; (b) to such party’s accountants, banks, financing sources and their advisors; (c) in connection with a dispute or the enforcement of this Agreement or rights under this Agreement; or (d) in connection with an actual or proposed merger, acquisition, or similar transaction.
Confidential Information will not include information that: (a) is in or enters the public domain without breach of this Agreement through no fault of the Receiving Party; (b) the Receiving Party can reasonably demonstrate was in its possession prior to first receiving it from the Disclosing Party; (c) the Receiving Party can demonstrate was developed by the Receiving Party independently, and without use of or reference to, the Confidential Information; or
(d) the Receiving Party receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation. In addition, the Receiving Party may disclose Confidential Information that is required to disclose by law or by a subpoena or order issued by a court of competent jurisdiction (each, an “Legal Order”), but solely on the conditions that the Receiving Party: (i) gives the Disclosing Party written notice of the Order within 24 hours after receiving it; and (ii) cooperates fully with the Disclosing Party before disclosure to provide the Disclosing Party with the opportunity to interpose any objections it may have to disclosure of the information required by
the Legal Order and seek a protective order or other appropriate relief. In the event of any dispute between the parties as to whether specific information is within one or more of the exceptions set forth in this Section, Receiving Party will bear the burden of proof, by clear and convincing evidence, that such information is within the claimed exception(s).
3.4. Remedies. The Receiving Party acknowledges that any unauthorized disclosure of Confidential Information will result in irreparable injury to the Disclosing Party, which injury could not be adequately compensated by the payment of money damages. In addition to any other legal and equitable remedies that may be available, the Disclosing Party will be entitled to seek and obtain injunctive relief against any breach or threatened breach by the Receiving Party of the confidentiality obligations hereunder, from any court of competent jurisdiction, without being required to show any actual damage or irreparable harm, prove the inadequacy of its legal remedies, or post any bond or other security.
4. Security and Privacy.
“Customer Data” shall mean all Customer data and information which is uploaded to, processed by and/or stored within the Managed Service. All Customer Data and shall be deemed the Confidential Information of Customer. The Parties shall implement and maintain reasonable technical, physical and organizational safeguards to protect the security, confidentiality and integrity of such Customer Data obtained or accessed in connection with this Agreement from unauthorized access, use, alteration or disclosure.
4.2. Data Privacy. CommSec shall collect Customer data only for the purpose of providing the Managed Services and to the extent permitted by the Customer. CommSec shall not transfer or export Customer Data to any other region without an explicit consent from the Customer. CommSec shall not make copies of the Customer Data except for the purposes of backup and with the consent of the customer. CommSec shall not use or disclose Customer Data, except (i) as compelled by law or (ii) as expressly permitted herein by Customer; or (iii) to implement and deliver the features and functionality associated with the normal use of the CommSec Managed Service and/or to perform its obligations hereunder, including support, or (iv) to help Customer prevent or address service or technical problems.
4.3. Anonymized Data. Notwithstanding anything else stated herein, CommSec may monitor, collect, use and store anonymous and aggregate statistics regarding use of the Managed Service solely for CommSec business purposes (including, but not limited to, improving the Managed Service and creating new features).
5. Representations, Warranties and Remedies.
5.1. Mutual Warranties. Each party represents and warrants the following: (a) it is validly existing and in good standing under the laws of the place of its establishment or incorporation; (b) it has full corporate power and authority to execute, deliver and perform its obligations under this Agreement; (c) the person accepting this Agreement on its behalf has been duly authorized and empowered to enter into this Agreement; (d) this Agreement is valid, binding, and enforceable against it in accordance with its terms; and (e) it will perform its obligations under this Agreement in accordance with applicable laws or regulations.
5.2. CommSec Warranties. CommSec warrants during the Term that the CommSec Managed Service will substantially conform in all material respects to the functional specifications outlined in the
relevant Documentation. If the Managed Service fails to meet such warranty, CommSec will use commercially reasonable efforts to remedy such non-conformity, and if such non-conformity cannot be corrected in a reasonable time, then the Customer’s sole remedy would be to terminate this Agreement.
5.3. Customer Warranties. Customer represents and warrants that during the Term (a) it will not make any material misrepresentation to 3rd Parties regarding the CommSec Managed Service or services provided by CommSec ; (b) it will not build a competitive product or service, or copy any features or functions of the Service; (c) it will not disclose to any third party or publish in any media any performance information or analysis relating to the Managed Service; (d) it will maintain all copyright, trademark and proprietary notices on the Managed Services and any permitted copy thereof; and (e) it will access, use, process, analyse or transmit CommSec Data, or any information derived from Endpoints or impact the subject matter of the software and processing of data.
EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS SECTION, COMMSEC DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO COMMSEC SOLUTIONS OR ANY COMMSEC SERVICES, WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ALL WARRANTIES OF MERCHANTABILITY, FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT SUCH PARTY KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE), NON-INFRINGEMENT OR CONDITION OF TITLE. CUSTOMER ON BEHALF OF ITSELF AND CUSTOMER USERS ACKNOWLEDGES THAT THE CUSTOMER USERS ARE SOLELY RESPONSIBLE AND LIABLE FOR
VERIFYING THE ACCURACY AND ADEQUACY OF ANY OUTPUT FROM THE SOLUTION, AND FOR ANY RELIANCE THEREON AND TO THE MAXIMUM EXTENT PERMITTED BY LAW. USER WAIVE ANY AND ALL CAUSES OF ACTION OR CLAIMS AGAINST US ARISING THEREFROM OR RELATING THERETO. COMMSEC CANNOT AND DOES NOT WARRANT THE RESULTS THAT MAY BE OBTAINED BY THE USE OF THE SOLUTION. THIS DISCLAIMER AND EXCLUSION WILL APPLY EVEN IF ANY EXPRESS WARRANTY HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
6. Indemnification Obligations.
6.1. Infringement Indemnity. CommSec will defend Customer and its directors, officers, employees, contractors, agents, or other authorized representatives (“Customer Indemnitees”) from and against any and all third party claims, suits, actions or proceedings (each a “Claim”), and indemnify Customer Indemnitees from any related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorneys’ fees, costs, penalties, interest and disbursements) that are awarded by a court of competent jurisdiction or included in a settlement approved, in advance and in writing, by CommSec resulting from Managed Service Tools infringing any Intellectual Property Rights of any third party. In the event of a Claim pursuant to this Section, CommSec may, at CommSec ’s option and at CommSec ’s expense: (a) obtain for Customer the right to continue to exercise the license granted to Customer under this Agreement; (b) substitute the allegedly infringing component for an equivalent non-infringing component; or (c) modify Managed Service Tools (as relevant) to make them non- infringing. If (a), (b), or (c) is not obtainable on commercially reasonable terms, CommSec may terminate this Agreement with respect to the relevant technology, effective immediately, by written notice to Customer. In the event of a termination of this Agreement pursuant to this Section, all
rights and licenses with respect to the relevant CommSec Managed Service Tools will immediately cease. CommSec’s indemnification obligations do not extend to Claims arising from or relating to: (i) any negligent or wilful misconduct of any Customer Indemnitees; (ii) any combination of the relevant CommSec Managed Service Tools (or any portion thereof) by any Customer Indemnitees or any third party with any equipment, software, data or any other materials where the infringement would not have occurred but for such combination, unless such combination is the customary, ordinary, and intended use of the CommSec Managed Service Tools (each as relevant); (iii) any modification to the CommSec Managed Service Tools by any Customer Indemnitees or any third party where the infringement would not have occurred but for such modification; (iv) the use of the Managed Service Tools by any Customer Indemnitees or any third party in a manner contrary to the terms of this Agreement where the infringement would not have occurred but for such use; or (v) the continued use of the CommSec Managed Service Tools after CommSec has provided a substantially equivalent non-infringing replacements.
6.2. Customer Indemnity. Customer, at its sole expense, will defend CommSec and its directors, officers, employees contractors, agents or other authorized representatives (“CommSec Indemnitees”) from and against any Claims and indemnify CommSec Indemnitees from any related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable legal fees, costs, penalties, interest and disbursements) arising out of, based on (a) Customer Assets, Customer’s business operations, or any other negligent or intentional malfeasance by Customer personnel); (b) loss, breach, mishandling or unauthorized access or use of Customer Data; (c) circumvention of the Managed Service; (d) any use of the Managed Service Tools in violation of this Agreement or any third party right (other than claims covered by CommSec indemnity).
6.3. Procedures. The indemnifying party’s indemnification obligations under this Agreement are conditioned upon the indemnified party: (a) giving prompt written notice of the Claim to the indemnifying party once the indemnified party becomes aware of the Claim (provided that failure to provide prompt written notice to the indemnifying party will not alleviate an indemnifying party’s obligations hereunder to the extent any associated delay does not materially prejudice or impair the defence of the related Claims); (b) granting the indemnifying party the option to take sole control of the defence (including granting the indemnifying party the right to select and use counsel of its own choosing) and settlement of the Claim (except that the indemnified party’s prior written approval will be required for any settlement that reasonably can be expected to require an affirmative obligation of the indemnified party other than discontinued use of technology); and (c) providing reasonable cooperation to the indemnifying party and, at the indemnifying party’s request and expense, assistance in the defence or settlement of the Claim.
7. Limitation of Liability.
EXCEPT FOR BREACHES OF SECTION 2.3 (RESTRICTIONS), 3 (CONFIDENTIALITY) OR EACH PARTY’S INDEMNIFICATION OBLIGATIONS:
A) IN NO EVENT WILL EITHER PARTY’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE GREATER OF EITHER THE FEES PAID BY CUSTOMER TO COMMSEC DURING THE 12 MONTH PERIOD PRIOR TO THE EVENT UNDER WHICH THE DAMAGES AROSE OR TEN THOUSAND (10,000) EURO; AND
B) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, ANY INTERRUPTION OF
BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF, OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. THIS SECTION WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
8. Term and Termination.
8.1. Term. The terms of the agreement shall be determined in the agreement between CommSec and Customer.
8.2. Effects of Termination. Upon any termination of this Agreement: (a) all rights and licenses granted to Customer under this Agreement will immediately terminate and Customer will remove all components of CommSec Managed Service from Customer systems and return or destroy all copies of Managed Service Tools on Customer systems; (b) all of CommSec ’s obligations under this Agreement (including, CommSec ’s performance of the CommSec support obligations) will immediately cease; and (c) each party will promptly return to the other party all Confidential Information of such other party then in its possession or destroy all copies of Confidential Information of such other party, at such other party’s sole discretion and direction. Customer will immediately confirm, in writing, that it has complied with this section at CommSec ’s request. Notwithstanding any terms to the contrary in this Agreement, all terms that by their nature should survive after termination will survive any termination of this Agreement.
9. General Provisions.
9.1. Third Party Products. The customer understands that the Managed Service may be designed to access, integrate with, or be interoperable with certain Third Party Products, however, any such access and use of Third Party Products is governed solely by the terms and conditions of the third party provider, and CommSec does not endorse, is not responsible or liable for, and makes no representations as to any aspect of such Third Party Products, including, without limitation, the technology itself, the availability of, or any content or material made available by the third party provider. Additionally, Customer understand that Third Party Products may be updated or changed overtime, and therefore, CommSec makes no representations regarding the manner in which the Managed Service accesses, integrates or interfaces with or fails to access, integrate or interface with such Third-Party Products. Customer agrees to and hereby irrevocably waives any claim against CommSec with respect to such Third-Party Products or the access, availability, integration, or interoperability of the Third-Party Products with Managed Services. The Parties agree that CommSec shall not be liable for any damage or loss caused or alleged to be caused by or in connection with Customer’s failure to enable access or use of any such Third-Party Products. Additionally, Customer understands and agrees that in connection with any access or use of the Third-Party Products, it is relying on the privacy practices, the data security processes and/or other policies of such third-party providers. Customer may be required to register for or log into such Third-Party Products on their respective websites and by enabling any Third-Party Products, Customer is expressly permitting (on behalf of itself, as relevant) CommSec to disclose relevant login information as well as certain information or data required by such login, strictly as necessary to facilitate the use or enablement of such Third-Party Products enabled by Customer.
9.2. Entire Agreement. This Agreement and its exhibits set forth the entire agreement and understanding of the parties relating to the subject matter hereof, and supersedes all prior or contemporaneous agreements, proposals, negotiations, conversations, discussions and understandings, written or oral, with respect to such subject matter and all past dealing or industry custom.
9.3. Independent Contractors. Neither party will, for any purpose, be deemed to be an agent, franchisor, franchise, employee, representative, owner or partner of the other party, and the relationship between the parties will only be that of independent contractors. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
9.4. Governing Law and Venue. This Agreement will be governed by and construed in accordance with the laws of the Ireland applicable to agreements made and to be entirely performed within Ireland, without resort to its conflict of law provisions. Ireland will be the jurisdiction in which any suits should be filed if they relate to this Agreement. Prior to the filing or initiation of any action or proceeding relating to this Agreement, the parties must participate in good faith mediation (except an action or proceeding required to protect or enforce a party’s Intellectual Property Rights). If a party initiates any proceeding regarding this Agreement, the prevailing party to such proceeding is entitled to reasonable attorneys’ fees and costs for claims arising out of this Agreement.
9.5. Publicity. Customer agrees that CommSec may reference and use Customer’s name and trademarks in CommSec marketing and promotional materials, including, but not limited to, the CommSec website, solely for purposes of identifying Customer as a customer of CommSec. Otherwise, neither party may use the trade names, trademarks, service marks, or logos of the other party without the express written consent of the other party.
9.6. Assignment. Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned, or delegated by a party, by operation of law or otherwise, without the prior written consent of the other party, and any attempted transfer, assignment or delegation without such consent will be void and without effect. Notwithstanding the foregoing, each party may assign this Agreement to any successor to substantially all of its business or assets, whether by merger, sale of assets, sale of stock, reorganization or otherwise, with written notice to the other party. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective representatives, heirs, administrators, successors and permitted assigns.
9.7. Amendments and Waivers. No modification, addition or deletion, or waiver of any rights under this Agreement will be binding on a party unless made in a printed agreement clearly understood by the parties to be a modification or waiver and signed by a duly authorized representative of each party. No failure or delay (in whole or in part) on the part of a party to exercise any right or remedy hereunder will operate as a waiver thereof or effect any other right or remedy. Unless expressly stated otherwise, all rights and remedies hereunder are cumulative and are not exclusive of any other rights or remedies provided hereunder or by law. The waiver of one breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default.
9.8. Notices. Any legal notice (whether this Agreement expressly states “written notice” or “notice”) or communication required or permitted to be given hereunder must be in writing, signed or authorized by the party giving notice, and may be delivered by hand, deposited with an overnight courier, sent by confirmed email, confirmed facsimile, or mailed by registered or certified mail,
return receipt requested, postage prepaid, in each case to the address of the receiving party as identified on this Agreement or at such other address as may hereafter be furnished in writing by either party to the other party. Such notice will be deemed to have been given as of the date it is delivered. Notice is effective on the earlier of five (5) days from being deposited for delivery or the date on the confirmed facsimile, confirmed email or courier receipt. Notices regarding changes to Customer Support Policy can be delivered via email to the business contact managing the relationship between the parties.
9.9. Severability. If any provision of this Agreement is invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other provisions of this Agreement will nonetheless remain in full force and effect so long as the economic and legal substance of the transactions contemplated by this Agreement is not affected in any manner adverse to any party. Upon such determination that any provision is invalid, illegal, or incapable of being enforced, the parties will negotiate in good faith to modify this Agreement so as to affect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled.
9.10. Force Majeure. Neither party will be responsible for any failure to perform or delay attributable in whole or in part to any cause beyond its reasonable control, including but not limited to acts of God (fire, storm, floods, earthquakes, etc.), civil disturbances, disruption of telecommunications, disruption of power or other essential services, interruption or termination of service provided by any service providers being used by CommSec , labour disturbances, vandalism, cable cut, computer viruses or other similar occurrences, or any malicious or unlawful acts of any third party (a “Force Majeure Event”).
9.11. Counterparts. This Agreement may be executed: (a) in two or more counterparts, each of which will be deemed an original and all of which will together constitute the same instrument; and (b) by the parties by exchange of signature pages by mail, facsimile, or email (if email, signatures in Adobe PDF or similar format)